Colin Warbrick

I. Global Warming and the Kyoto Protocol

The Third Conference of the Parties to the United Nations Framework Convention on Climate Change (Climate Change Convention) was held from 1 to 11 December 1997 at Kyoto, Japan. Significantly the States Parties to the Convention adopted a protocol (Kyoto Protocol) on 11 December 1997 under which industrialised countries have agreed to reduce their collective emissions of six greenhouse gases by at least 5 per cent by 2008–2012. Ambassador Raul Estrada-Oyuela, who had chaired the Committee of the Whole established by the Conference to facilitate the negotiation of a Protocol text, expressed the view that: “This agreement will have a real impact on the problem of greenhouse gas emissions. Today should be remembered as the Day of the Atmosphere.” This note seeks to outline in brief the science of climate change, and international activity to combat global warming prior to the Kyoto conference. It then attempts to analyse the terms of the Kyoto Protocol and to draw some conclusions on its significance.

The Pinochet Case No. 3

The decision of the Appellate Committee of the House of Lords, given on 24 March 1999, 1 confirms, by the impressive vote of 6 to 1, the earlier majority ruling that a former head of state enjoys no immunity in extradition or criminal proceedings brought in the United Kingdom in respect of the international crime of torture.

The International Criminal Tribunal for Yugoslavia: The Decision of the Appeals Chamber on the Interlocutory Appeal on Jurisdiction in the Tadic Case

Dusko Tadic is a Bosnian Serb. He is the first defendant of whom the International Criminal Tribunal for Yugoslavia (the “Tribunal”) obtained custody, following his transfer to the Tribunal at its request from Germany. Tadic had been arrested there and investigations had begun into his involvement in offences in Yugoslavia. These enquiries were discontinued at the request of the Tribunal. 1

I. The Northern Ireland Peace Agreement, Minority Rights and Self-Determination

The Northern Ireland Peace Agreement 1 was concluded following multi-party negotiations on Good Friday, 10 April 1998. It received 71 per cent approval in Northern Ireland and 95 per cent approval in the Republic of Ireland in the subsequent referenda held on Friday 22 May, the day after Ascension. To some, it must have seemed that the timing was singularly appropriate following 30 years of “The Troubles”, which were perceived as being between a “Catholic minority” and a “Protestant majority”. While there are some minority groups identified by their religious affiliation that do require rights relating only to their religion, such as the right to worship in community, 2 to practise and profess their religion, 3 to legal recognition as a church, 4 to hold property 5 and to determine its own membership, 6 some minority groups identified by their religious affiliation are properly national or ethnic minorities–religion is merely one factor which distinguishes them from the other groups, including the majority, in the population. One example of the latter situation is to be seen in (Northern) Ireland where there is, in fact, untypically, a double minority: the Catholic-nationalist community is a minority in Northern Ireland, but the Protestant-unionist population is a minority in the island of Ireland as a whole. 7 The territory of Northern Ireland is geographically separate from the rest of the United Kingdom. The recent peace agreement addresses a whole range of issues for Northern Ireland, but included are, on the one hand, rights for the populations based on their religious affiliation, their culture and their language and, on the other, rights with respect to their political participation up to the point of external self-determination. It is a holistic approach. Like any good minority rights agreement, 8 it deals with both standards and their implementation and, like any good minority rights agreement, it is not a minority rights agreement but, rather, a peace settlement.

II. State Immunity, Diplomatic Immunity and Act of State: A Triple Protection Against Legal Action?

The relationship between State immunity and diplomatic immunity has always been a rather complex one. The two concepts undoubtedly have a common juridical background in the form of the concepts of sovereignty, independence and dignity.1 On the other hand, recent developments in both fields have seen a move towards a more functional-based approach. Thus, in relation to diplomatic immunity, the dominant theoretical basis is that of functional necessity.2 As regards State immunity, recent developments in both international law3 and, more particularly, in UK law4, from absolute to restrictive State immunity, have resulted in a more functionally orientated approach, that is, a shift of emphasis in matters of State immunity from immunity ratione personae to immunity ratione materiae.5 Now two recent cases in the United Kingdom have raised the possibility that, in the case of diplomats at least, the two concepts may be combined to provide a double immunity for diplomatic agents against civil suit. More controversially, the cases have raised the possibility of a third type of protection based upon immunity ratione personae in what could be said to amount to a modified act of State doctrine. The cases in question are Propend Finance Pty Ltd. v. Alan Sing and The Commissioner of the Australian Federal Police6 and Re P (Diplomatic Immunity: Jurisdiction).7

I. BRITISH POLICY AND THE NATIONAL TRANSITIONAL COUNCIL OF LIBYA

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II. Ex parte Pinochet : Lacuna or Leap?

The Lords were not lost in admiration of section 20 of the State Immunity Act 1978. Lord Browne-Wilkinson described it as “strange” and “baffling”. It is certainly true that (as Lord Browne-Wilkinson continued) “Parliament cannot have intended to give heads of state and former heads of state greater rights than they already enjoyed under international law”. 1 Nor was it intended that their rights should be inadvertently curtailed. The State Immunity Bill originally introduced into the House of Lords in 1977 would, by reflecting in UK statute law the European Convention on State Immunity 2 make huge inroads into absolute sovereign immunity—tottering but not yet demolished through the repeated onslaughts of Lord Denning. The European Convention was however “essentially concerned with ‘private law’ disputes between individuals and States”. 3 It was not intended to have any application to criminal proceedings—in so far as lawyers in 1977 even contemplated criminal proceedings in domestic courts against foreign States in their public capacity. It did not deal with the personal privileges or immunities of heads of state. There were no ready-made treaty rules on heads of state and no clear customary rules either. 4

II. Implementation of the Criminal Court Statute in England and Wales

Although a few States ratified the Rome Statute for the International Criminal Court 1 soon after it was promulgated, the UK decided to prepare and pass implementing legislation prior to submitting its ratification. In England and Wales (and Northern Ireland), 2 the ICC Statute is implemented by the International Criminal Court Act 2001, 3 which came fully into force on 1 September 2001. 4 The UK ratified the ICC Statute on 4 October 2001, fulfilling its aim of being amongst the first sixty States to do so. 5 The Act has two major purposes, to ensure that the UK is able to co-operate fully with the International Criminal Court (ICC), and to enact into domestic law the substantive offences the ICC may assert jurisdiction over when it comes into being. 6 It is the purpose of this note to introduce the Act and point to some interesting issues that may arise in the future.

I. Drug Trafficking at Sea: the Case of R. v. Charrington and Others

In 1991 the United Kingdom became a Party to the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, one of the purposes of which is “to improve international co-operation in the suppression of illicit traffic by sea”. 1 Article 17 of that Convention has, as its central purpose, the establishment of international standards, procedures and practices designed to facilitate the obtaining of enforcement jurisdiction whereas Article 4 addresses the closely associated issue of prescriptive jurisdiction. 2 The Criminal Justice (International Co-operation) Act 1999 contains a number of provisions of relevance in this latter context. These include the taking of extraterritorial jurisdiction over certain drugs offences taking place on board the vessels of other Convention parties. 3

I. Ospar Decision 98/3 and the Dumping of Offshore Installations

In September 1997 the government of the United Kingdom announced new policies on the dumping of offshore installations. The new policies centred on a general prohibition of dumping of offshore installations for all but those instances where there was absolutely no alternative. 1 They were presented as a sea change from the policies of the previous Conservative government which had required each case to be assessed on its merits and were hailed by some at the time as a major development. 2 To date this has been a development with little legislative substance at the UK domestic level. 3 At the international level, however, it appears to have produced more substantive changes, primarily by enabling the government to play an important role in the development of new rules under the Ospar Convention 1992. 4 And, while the full extent of the United Kingdoms influence on the exact developments is not clear, it is clear that the new rules contain developments which are of importance not only to the parties to the Ospar Convention, but to the international law on the dumping of offshore installations generally. These legal developments will be considered below.