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.  

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. 

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.

Transnational Justice Matters: An ICC Overview

By Rakesh Roshan*

On 1^st July 2017, the International Criminal Court completed 15 years. While there are 24 cases that have been brought before the Court, it has only managed to convict 4 individuals in all these years, but it is hoped that it carries to deliver universal justice in an unprecedented manner.

Source: About ICC

Urbaser v. Argentina: Analysing the Expanding Scope of Investment Arbitration in light of Human Rights Obligations

[This article was published at EFILA Blog (here) on 2nd May, 2017]

 

While allowing investors the right to directly bring a claim against the States has said to be the single most progressive development in International Law in the 20^th century, they also have gained recognition as ‘subjects’ of international law. It is this recognition which puts a corollary duty on the investor to regard human rights while carrying out activities in the host state. Over the past couple of decades, there has been a growth in, both, international human rights jurisprudence and investment arbitration claims by investors against States. With both procedural and substantive matters of importance coming to the fore, it has led to the convergence of both the areas and raised a valid concern of the importance of erga omnes obligations of human rights in investment arbitration. A human rights concern is a two-way street, with States being concerned about human rights violations by the investor in their territory and the investor being careful that his/her human rights are not unjustly violated by the State.

US attack on Syria: Use of Force and Norm Creation

by Sujoy Sur

The United States of America fired 59 Tomahawk missiles at an air base in the Syrian town of Khan Sheikhoun on 6^th April. This was 2 days after chemical weapons were used in the same Syrian town, which killed over 80 people, including at  least 20 women and 30 children. However, the question arises whether USA’s act can in any manner be held a) a legitimate response, b) a valid act in itself.

Interview: Dr. Wolfgang Alschner, Assistant Professor, University of Ottawa

Dr. Wolfgang Alschner, Assistant Professor at the University of Ottawa, is an empirical legal scholar specialized in international economic law and the computational analysis of law. He holds a PhD in International Law from the Graduate Institute of International and Development Studies in Geneva, a Master of Law from Stanford Law School, a Master in International Affairs from the Graduate Institute as well as an LLB from the University of London and a BA in International Relations from the University of Dresden, Germany. Prior to joining academia, he worked for UNCTAD’s Section on International Investment Agreements. He co-founded the investment treaty analytics portal www. mappinginvestmenttreaties.com and has published in leading peer-reviewed journals.

India’s Joint Interpretive Statement for BITs: An Attempt to Slay the Ghosts of the Past

By Sarthak Malhotra

(This article was originally published in ITN Quarterly, December 2016, International Institute for Sustainable Development here.)

India has bilateral investment treaties (BITs) or bilateral investment promotion agreements (BIPAs) in force with 72 countries.[1] The initial duration of these agreements with 25 countries has not yet expired.[2] The Government of India (Government) has recently begun negotiations with these countries proposing a Joint Interpretative Statement (Statement)[3] containing clarifications similar to the text of India’s new Model BIT.[4] We highlight below nine of the clarifications included in the Statement.