International jurisdictions as a tool for scam: A Case-study on the “Sovereign ICJ and the Sovereign ICC for Banking & Redemption”

By Jacques Bellezit*

Introduction: On “Redemption”  or “Accepted For Values” Theory

Redemption theory was theorised by Judge Rooks of the Court of Queen’s Bench for Alberta, in the Meads v Meads case as part of the Organised Pseudolegal Commercial Arguments(OPCA). The aim of the so-called OPCA arguments are to “ to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals”^[1] The Redemption theory is related to the “strawman” theory, stating that each individual has two personalities: One of them is the tangible human person whereas the other one is a legal fiction, created by the State through certain documents (issuing of birth-certificate, ID or social security number).^[2]  Tax-resistance partisans often argue that State documents are issued to the “wrong” or “false” person in order to escape tax liabilities or other forms of the State’s authority (ID or driving licence inspection, etc.): This strawman theory is embodied in what is known as the “capital letter argument”, stating that “JOHN DOE” and “John Doe” are not the same person(!).

This has paved the way for various scams pretending to give keys, methods and pseudo-legal procedures about how to gain back the control or re-buying of the ‘true” person from the State’s clutches or a (high) sum of (hidden) money associated to this “true” person.

A Critical Analysis of the International Criminal Court: Its Significance, Drawbacks and Future Roadmap

By Ifra Jan^* and Karmanye Thadani^**

Introduction

One of the most important driving forces behind the decision to establish the United Nations was the prime determination “to save succeeding generations from the scourge of war, which twice in their life time had brought untold sorrow to mankind”. However, even after the formation of the United Nations, several armed conflicts and wars continue to inflict pain and suffering. In this consideration, the Humans Rights Committee during its sixteenth session in 1984 observed that “war and other acts of mass violence continue to be a scourge of humanity and take the lives of thousands of innocent beings every year”.

Generally, in situations of conflict arising from the territoriality principle, states have the power to take jurisdiction over the crimes committed within their territory, which is inherently defined under their sovereignty. However, under nationality principles, states would assume jurisdiction over the crimes committed by their nationals outside the boundaries. In the exercise of their sovereignty, states can delegate the task of trying a particular type of offence to an international body. This was done after World War II and, more recently, after the conflicts in the Balkans, in Rwanda, Sierra Leone, Timor Leste and to a less extent in Cambodia.

Before the inception of the International Criminal Court (ICC), a brief introduction to the two ad hoc tribunals, International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), is important, as this would further highlight the importance of the ICC. Firstly, the United Nations Security Council set these ad hoc tribunals in order to exercise and maintain its security and peace powers which are defined under Chapter VII of the UNSC charter (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression). Secondly, these tribunals shared their respective jurisdictions with the national courts (like the ICC as well), however, there was no mention anywhere that the decision of the tribunals shall supersede the national courts (unlike the ICC). Lastly, the tribunals only served at a specific location under a special time frame and were subjected to selective justice, which failed to transpire into the world at large, which was facing similar crises during the same time.  

Superman and International Law

Introduction 

On 27 February 1940, the Look magazine published the comic strip, “How Superman Would End the War” (Comic Strip). The creators, Jerry Siegel and Joe Shuster, co-creator of Superman, published a short story. In this story, Superman zooms off to Germany and Stalin, where he picks up Hitler and Stalin, by the scruff of his neck.; he takes the two dictators to Geneva, Switzerland, where he delivers them to the League of Nations’ World Court for trial. The League of Nations was first proposed by President Woodrow Wilson as part of his Fourteen Points plan for equitable peace in Europe. It was dissolved after the second World War, in 1946, to make room for the United Nations. Consequently, the League of Nations’ World Court in Geneva was succeeded by the United Nations’ International Court of Justice/ World Court in The Hague. 

Rethinking International Human Rights Law

By Ankit Malhotra*

Introduction

In the year 1983, Argentina saw the end of a brutal military dictatorship that had killed and led to the disappearance of up to 30,000 people. In the years that followed, forensic anthropologists worked with the families of the disappeared to exhume and identify human remains from mass graves. This operation was momentous. The forensic anthropologists were investigating serious abuses of human rights through the analysis of remains, with the hope of one day bringing the perpetrators to trial. But, they had another goal: to ease the suffering of the living by identifying and returning the remains of the dead to their families. It was from that time that the work of forensic anthropologists began to take on a humanitarian function. 

Image credit: The New Humanitarian

Since the operation in Argentina, forensic investigations of mass graves have become an almost standard response to mass violence. Similar investigations have taken place in Rwanda, Guatemala, South Africa, and the former Yugoslavia. The common denominator of these countries in terms of their recent history has been that they all have witnessed mass killings. The Argentinian investigation marked the beginning of this era. But, these events are part of a much bigger story about the humanitarian interest in mass deaths. 

The American Folly

by Ankit Malhotra*

The United States of America (hereinafter, United States or America(n)) has left Afghanistan and given the Taliban a gift – its war-chest. This includes state-of-the-art helicopters, attack planes, rifles, and machine guns – the most advanced American weapons. This is not the first time that the United States has done this as its track record shows that it is a repeat offender when it comes to arming terror groups and rogue regimes. Sometimes by design and sometimes by default, America continues to feed the global war machine. American weapons are being used to undermine what American governments say they are fighting for – international peace and security. While weapons sale has always been integral to America’s foreign policy for decades, sometimes Washington has sold arms and ammunition without even notifying US Congress or the American public.

Image credit: New Internationalist

A summary of the United States – Taliban agreement (Doha Agreement) in 500 words

Qatar, Feb 29 (ANI): United States Special Representative for Afghanistan Zalmay Khalilzad and Mullah Abdul Ghani Baradar, Taliban group’s top political leader signing a peace agreement between Taliban and U.S., in Doha on Saturday. (Credits: ANI Photo)

Amidst the Taliban’s ‘takeover’ of Afghanistan and the chaos that ensued, here is a 500 word, 11 point summary of the agreement pursuant to which the withdrawal of US troops took place. Indicative of the capacity in which the US recognised the Taliban, the agreement is titled, ‘Agreement for Bringing Peace to Afghanistan between the Islamic Emirate of Afghanistan which is not recognized by the United States as a state and is known as the Taliban and the United States of America‘ (Agreement), also known as the ‘Doha Agreement’. An understanding of the Agreement is important to analyse the whys and hows of the events which unfurled in Afghanistan in the past 2 weeks.

However, before proceeding to the summary, it is important to bear in mind the following points:

1. The US does not recognise the Taliban as a State or a State entity, as understood under international law.
2. As per article 1(a) of the Vienna Convention of Law of Treaties (VCLT), a treaty governed by the VCLT can only be executed between States.
3. However, the inapplicability of the VCLT does not affect the legal force of such agreements and the application of the VCLT to any of the rules therein to which such agreements will be subject to independent of the VCLT (article 3).

The Agreement

1. The Taliban had to initiate intra-Afghan negotiations with Afghan sides from 10 March 2021 onwards, with a permanent and comprehensive ceasefire to be the most important agenda.

Part 1 (US Obligations)

1. USA and its allies had committed to withdraw all military forces and all its coalition partners[1] within 14 months from the announcement of the Agreement (i.e. by 1 May 2021).
2. The US had to bring down the number of troops to 8,600, with a proportional reduction by its allies, within the first 4.5 months and the then withdraw the remaining troops in the next 9.5 months.
3. The US and its allies had to withdraw all their forces from 5 military bases within the first 4.5 months, and thereafter from all the remaining military bases within the next 9.5 months.
4. Up to 5,000 Taliban prisoners were to be released as a confidence building measure, which included release of 1,000 prisoners by 10 March 2021.
5. The US had to start a review of sanctions against the Taliban and also engage with other members of the UNSC with the goal to remove the Taliban (and its members) from their sanctions list by 27 August 2020 and 29 May 2020, respectively.
6. The US and its allies had agreed to refrain from the use of threat or the use of force against the territorial integrity of Afghanistan.

Part II (Taliban’s Obligations)

1. The Taliban, including Al-Qaida, had agreed to not ‘use the soil of Afghanistan’ to threaten the security of the US and its allies. Further, the Taliban, were to not cooperate with any such group or individuals which/who would threaten the security of the US and its allies.
2. The Taliban had to prevent any group or individuals from threatening the security of the US or its allies and prevent them from recruiting, fundraising, training in that regard.

Part III (Mutual Obligations)

1. The US and the new Afghan government were to maintain positive relations with each other. These relations were to be determined by the intra-Afghan dialogues and negotiations.
2. The US and the new Afghan government were to seek economic cooperation for the redevelopment of Afghanistan.

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[1] This includes all non-diplomatic civilian personnel, private security contractors, trainers, advisors, and supporting services personnel

Erosion of ‘Party Autonomy’ under the ‘Expedited Procedure’ Rule: An Institutional Arbitration perspective

– by Soumyajit Saha*

‘Expedited Procedure’ Rules of SIAC, LCIA, ICC

In an attempt to reduce the time for adjudication of arbitral disputes, leading arbitral institutions like Singapore International Arbitration Centre (“SIAC”), ICC Court of International Arbitration (“ICC”) and London Court of International Arbitration (“LCIA”) have revised their respective rules and included the concept of ‘Expedited Procedure’ in their rules of procedure. Under the ‘Expedited Procedure’, arbitral institutions are given the liberty to reduce the time period in order to constitute the arbitral tribunal and a duty is cast upon the tribunal to render the award within six months mandatorily. Pursuant to Rule 5.1 of Singapore International Arbitration Centre Rules, 2016 (“SIAC Rules”), one of the parties may apply for the arbitral proceedings to be conducted in accordance with the ‘Expedited Procedure’. Similarly, Article 30 and Appendix VI of ICC Court of International Arbitration Rules (“ICC Rules”) deals with ‘Expedited Procedure’ rule. A close reading of Article 30 and Article II, Appendix VI of ICC Rules, Rule 5 of SIAC Rules and Article 9.3 of LCIA Arbitration Rules, 2014 indicates that scope of party autonomy has been given a limited view.

ICSID tribunal finds Hungary in breach of expropriation clause in France–Hungary BIT

(This article was first published in ITN Quarterly, Issue 4, Volume 9, International Institute for Sustainable Development here)

Case Comment: UP and C.D. Holding Internationale v. Hungary, ICSID Case No. ARB/13/35

In an award dated October 9, 2018, an ICSID tribunal considered claims brought against Hungary by two French companies: UP (formerly known as Le Chèque Déjeuner, a cooperative company) and C.D. Holding Internationale, a wholly owned subsidiary of UP. The tribunal upheld the indirect expropriation claim under the France–Hungary BIT, awarding the claimants roughly EUR 23 million in compensation.

India-Bangladesh BIT Joint Interpretative Notes

Readers of this blog may know that India has been seeking to sign a Joint Interpretative Statement for Bilateral Investment Treaties (BITs) with Bahrain, Bangladesh, Bosnia and Herzegovina, Brunei, China, Colombia, Finland, Iceland, Jordan, Kuwait, Laos, Latvia, Libya, Lithuania, Macedonia, Mexico, Mozambique, Myanmar, Saudi Arabia, Senegal, Serbia, Sudan, Syria, Trinidad and Tobago, and Turkey. I have covered this at length here.

It was reported in October 2017 that India and Bangladesh have signed Joint Interpretative Notes for the India-Bangladesh BIT (JIN). While considerable time has passed since then, I still want to discuss this development for the benefit of those who may have missed it.

Case Comment: Nabha Power Limited vs. Punjab State Power Corporation Limited & Anr. – Contractual Liability of the State under Commercial Contracts

by Dhritiman Roy* 

A recent judgment delivered by the Supreme Court of India on October 5, 2017 represents a significant milestone insofar as the judicial treatment of contractual liability of the State vis-à-vis private individuals/companies in the sphere of commercial contracts in India is concerned. The stated Supreme Court decision reaffirms the principle that even in the contractual sphere, no activity of the state, whether by itself or through any of its forms or agencies, can be arbitrary, unfair or unreasonable. Once the State or its instrumentality is party to a contract, it has an obligation in law to act fairly, justly and reasonably and the state, like any private party, is bound by the express terms of the agreement entered into by it.