Arman Sarvarian

Splitting the Baby: Incidental Review of United Nations Security Council Resolutions by the European Court of Human Rights

This article examines the review of UN Security Council resolutions by the European Court of Human Rights. Analysing recent decisions in the Nada and al-Dulimi cases against the background of the conclusion of the long-running Kadi saga, it builds upon the wealth of literature on the subject by proposing a theoretical basis for incidental review. It argues that the ECtHR directly review the lawfulness of an impugned resolution against a customary human rights standard, which would determine the applicability of Article 103 of the UN Charter to displace those Convention rights that are not accepted in custom by modifying the Bosphorus doctrine of equivalent protection to one of ‘adequate protection’. It thereby argues that it is possible to compromise between what are at present diametrically polarised positions, thus transcending from the issue of the power to judicially review to that of the standard or intensity of review. It would thus become possible to not only embed the European Convention on Human Rights and the European Court of Human Rights in the wider legal system but also to increase bottom-up pressure to entrench the protection of basic human rights in UN Security Council practice.

Problems of Ethical Standards for Representatives before ICSID Tribunals

There exists no ‘international bar’ regulating the practice of forensic advocacy before international courts and tribunals. Before arbitral tribunals such as the International Centre for Settlement of Investment Disputes and the Iran-US Claims Tribunal, legal argumentation is almost entirely left to the discretion of parties. There has been concern amongst participants in the arbitral process regarding ethical issues that have arisen concerning the conduct of representatives. Through analysis of ICSID procedural rules and jurisprudence, with supplementary reference to other investment arbitral tribunals as well as the Iran-US Claims Tribunal, it is argued that there is a need for procedural reform in order to introduce common and strict ethical standards of conduct for counsel appearing before such tribunals. In the absence of prescribed admission requirements or deontological rules, it is further submitted that ICSID tribunals have an inherent power to protect the integrity of their own proceedings by sanctioning representatives for misconduct. It is recommended that, as part of the progressive professionalisation of the international judicial system, the principles of integrity of arbitral proceedings, fair trial and equality of arms require that all litigants’ representatives be subjected to uniform standards of conduct.

Codifying the Law of State Succession: A Futile Endeavour?

The succession of states is one of the most complex, challenging and politicized problems in international law. Attempts by the International Law Commission to codify it in the dying days of decolonization produced two treaties, neither of which has attracted broad participation or proved to be particularly influential on subsequent practice. As in the first great wave of succession practice in decolonization (1950–1974), the second great wave of ‘desovietization’ at the end of the Cold War (1990–1996) featured reactive solutions purporting to apply principles whose authority, content and theoretical underpinnings were unsettled. The purpose of this article is to examine whether recent practice supports the hypothesis that codification of a ‘law of state succession’ – whose very existence has long been contentious – is a futile endeavour. The article examines the 21st-century succession practice in a historiographical approach. It uses the South Sudan and Scotland cases against a historical backdrop of codification with reference to their key issues of succession.

Uti Possidetis Iuris in the Twenty-first Century Consensual or Customary

The doctrine of uti possidetis iuris provides that, in the succession of States arising from secession or disintegration, territorial title is delimited between successors according to internal borders at the time of succession. Although it is commonly accepted that the concept originated in the nineteenth-century successions in the Spanish Americas and was generally adopted by the twentieth-century decolonization successors in Africa, international law scholars have been divided on whether the doctrine has thereafter evolved into a universal rule of customary international law that presumptively binds successors but is rebuttable by common agreement. This article argues that the ‘presumption’ of binding application is not supported by precedent and is inconsistent with the principle of consent. Rather, the law of State succession is neutral on the delimitation of successors’ frontiers: uti possidetis iuris is one of several methods of territorial delimitation that may be adopted by their common consent.