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Moderated by Martin Scheinin, Professor of International Law and Human Rights at the European University Institute, the panel of “promising new voices” addressed various areas of international law, including international sanctions, gap-filling at the International Court of Justice, the state responsibility doctrine, and current refugee detention practices. Panelists included Jessica Beess und Chrostin, King and Spalding’s international arbitration group; Yang Liu, UCLA School of Law; Dr. Vincent-Joël Proulx, National University of Singapore Faculty of Law; and Shana Tabak, Georgia State University College of Law.
Discussing how international economic sanctions are treated within international jurisprudence, Jessica Beess und Chrostin’s presentation addressed two key themes – the fora in which these claims arise, and whether the multilateral or unilateral nature of these sanctions impacts their treatment in international jurisprudence. These claims principally arise in the European Court of Justice (ECJ), the International Court of Justice (ICJ), and the Iran Claims Tribunal, though international arbitration tribunals may increasingly handle these claims in the future. Moreover, in light of ICJ jurisprudence’s significant persuasive authority, investors may find it important to understand how these claims have been and continue to be resolved. This is especially so given the likely influx of cases that may arise from recent investments in contentious countries, notably those in Russia.
Examining international jurisprudence’s treatment of these claims, Ms. Beess und Chrostin highlighted the significance of the multilateral or unilateral nature of the underlying sanctions. More specifically, as the ICJ’s Lockerbie and Nicaragua cases underscore, the ICJ is more likely to ultimately overturn unilateral sanctions than it is multilateral sanctions, including those imposed through Security Council resolutions. Though this analysis might not be significant to states, who will continue to do as they wish regardless, it may considerably impact where investors choose to invest.
Yang Liu’s presentation examined judicial gap-filling at the International Court of Justice. After examining the ICJ jurisprudence, including Croatia v. Serbia and its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, Mr. Liu debunked a prevailing assumption that the Court and its judges are “gap haters.”
Instead, according to Mr. Liu, the Court deals with gaps strategically, exploiting holes and ambiguities to either restrain or permit state behavior according to the particularities of each case. For instance, in Croatia v. Serbia (“the Genocide Case”), the Court utilized ambiguity surrounding state succession to responsibility to extend its jurisdiction and arguably restrain state action. However, in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the Court used doctrinal gaps in the UN Charter in a way that did not restrain state action. Instead, the court determined that the Charter’s silence on the use of any weapons (including nuclear weapons) neither expressly prohibited or permitted state use of nuclear weapons, whose legality would instead continue to be governed by necessity and proportionality. To explain the Court’s seemingly dichotomous approaches to gap filling, Mr. Liu asserts examining the political and normative factors surrounding each case.
Dr. Vincent-Joël Proulx’s presentation underscored how the law of state responsibility is used to hold states legally accountable for violating their international obligations, specifically as they relate to suppressing international terrorism. Dr. Proulx highlighted that when a state fails to prevent a terrorist attack, international law sets into motion a series of legal actions to address the harm committed. Under the existing international law framework, states seldom take unilateral action to enforce these obligations, and instead turn to inter-state mechanisms.
Focusing on U.N. organs and Security Council resolutions, Dr. Proulx elucidated that the Security Council may serve as a forum for institutionalizing the doctrine of state responsibility. In coordinating the monitoring and sanctioning of international law violations, the Security Council can incorporate the state responsibility doctrine as a means to fulfill its core mission of ensuring global security. Such an approach would be consistent with many of the Security Council’s past actions, including its decision to oblige Iraq to provide post-invasion reparations to Kuwait.
The final panelist, Shana Tabak, discussed refugee detention as a violation of international law. Underscoring her personal experience representing asylum-seekers in Atlanta, Ms. Tabak noted that a number of her clients came to the U.S. with strong claims for asylum, but were nevertheless immediately held in detention centers or returned to their country of origin without the opportunity to claim the fear of being persecuted upon return.
In discussing this pattern, Ms. Tabak highlighted that this practice constitutes a deprivation of liberty, which yields a further violation of an individual’s due process rights, specifically as they relate to the right to counsel. Together, these amount to a violation of U.S. non-refoulement obligations under international law. Notwithstanding this pattern, Ms. Tabak emphasized that because empirical research is lacking in this area, it is near-impossible to prove that an individual has been wrongfully deported to a country where she or he faces harm if that individual has not gone through the normal channels to claim asylum in the U.S. To address this problem and fulfill its obligations under international law, the U.S. must ensure that detained refugees are given the necessary protections and that the decision to impose detention is always proportional, reasonable, necessary, and a last resort.
Laura Livingston is a Law Fellow at the Public International Law & Policy Group.