The participation of indigenous peoples and victims in treaty-making for reconciliation on colonial crimes: between change and stability
1. Introduction Colonialism continues to raise complex issues for international law. Perhaps the most important question pertains to whether former colonial empires have an obligation to provide reparation for the violence committed. In essence, European States tend to acknowledge their moral and political responsibility while denying any form of legal responsibility, whereas former colonies have...
The advisory proceedings on climate change before the International Court of Justice
1. Introduction Climate change, a crisis of unprecedented magnitude, is presenting novel challenges to the edifice of international law, and law more broadly. Legal scholars and practitioners worldwide are engaged in a complex exercise of reimagining and sometimes reviving legal norms to address this crisis. These efforts are most visible in the numerous judgments resulting...
Science in inter-State arbitration: What could be there between deference and distrust?
1. Introduction Science enters inter-State arbitration in various ways in environmental disputes, which are notoriously closely tied to complex scientific facts. The epistemic authority of scientific knowledge may induce two main types of reactions from international adjudicators hearing such disputes. Panels may either acknowledge the cognitive authority of scientific knowledge, which may invite affording deference...
The future of the Articles on State Responsibility: A matter of form or of substance?
1. Introduction If one took a cursory look at the comments made by States on the Articles on the responsibility of States for internationally wrongful acts (ARSIWA or ‘the Articles’) adopted in 2001 by the UN International Law Commission (ILC),[1] one could hardly be surprised by the number of general statements underscoring the critical importance...
Litigating jurisdiction before the ECtHR: Between patterns of change and acts of resistance / Zoom In
A functional-impact model of jurisdiction: Extraterritoriality before the European Court of Human Rights
1. Introduction In the two insightful articles of this Zoom-in, Mallory and Raible contest, to different extents, the lack of a principled approach on extraterritorial jurisdiction by the European Court of Human Rights (ECtHR or the Court). They ask, inter alia, whether time has arrived for a moment of clarity fathoming current mutable readings of...
Litigating jurisdiction before the ECtHR: Between patterns of change and acts of resistance / Zoom In
A second coming of extraterritorial jurisdiction at the European Court of Human Rights?
1. Introduction Turning and turning in the widening gyre The falcon cannot hear the falconer (Extract from ‘The Second Coming’ by W.B. Yeats) Article 1 of the European Convention on Human Rights indicates that a state’s obligations will apply to everyone ‘within their jurisdiction’.[1] The exercise of jurisdiction is therefore a ‘threshold criterion…a necessary...
The Chagos request and the role of the consent principle in the ICJ’s advisory jurisdiction, or: What to do when opportunity knocks
1. Introduction When the request for an advisory opinion on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965 came to the International Court of Justice (ICJ or Court), a unique opportunity knocked on the doors of the Peace Palace. With its answer to the questions asked by the General...
Decolonisation revisited and the obligation not to divide a Non-Self-Governing Territory
1. Introduction A central question in the current ICJ advisory proceedings on Chagos is whether obligations existed to prevent Britain from separating the islands from the non-self-governing territory of Mauritius in 1965 prior to its independence in 1968. The Chagos archipelago is a group of small islands and atolls in the Indian Ocean, 2,200 km...
Reflections on the effectiveness of peremptory norms and erga omnes obligations before international tribunals…
By means of Resolution 71/292, of 22 June 2017, the United Nations General Assembly requested for an Advisory Opinion (AO) of the International Court of Justice (ICJ) on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965.[1] At the current stage in the proceedings the discussion that takes precedence concerns...
The concept of duress in the world of decolonization
1. Introduction 23rd September 1965, 10 AM, 10 Downing street, London: Discussions on the future of Mauritius. The United Kingdom (UK), the colonial power, represented by Prime Minister Harold Wilson is on one side and Premier Ramgoolam, acting on behalf of Mauritius, the colonial entity, on the other side of the negotiating table. The colonial...
Déjà Vu in The Hague – the relevance of the Chagos arbitral award to the proceedings before the ICJ
1. Introduction On 18 March 2015, an UNCLOS Annex VII tribunal constituted under the auspices of the Permanent Court of Arbitration issued its award in the Chagos Arbitration, finding that the UK’s establishment of a Maritime Protected Area (MPA) in the archipelago was in violation of international law.[1] The decision features among the documents attached...
