The ten main developments in international law in 2017

The year 2017 was, once again, a dramatic year in terms of world affairs. Fears of a rising tide of nationalism were stemmed by the failure of far-right parties to win majorities in Dutch, French and German elections, but the impact of the biggest upheaval of 2016 – the election of President Trump – was felt everywhere. A key theme, from France and Ireland to Zimbabwe, was the replacement of old orders with new ones. The effect that these political changes will have on international law will be revealed over the next few years. In the meantime, this article looks back on ten major events and developments that shaped the international legal order in 2017.

In early April, the United States launched an airstrike against a military base in Syria used by President Assad to carry out chemical weapons attacks against his own population. The strike was justified as retaliation for the use of chemical weapons and to deter their future use. Commentators on international law were fairly unanimous in their verdict on the legality of the strike: the use of force against another state is prohibited by the UN Charter with only a limited exception for self-defense (and some would say, controversially, humanitarian intervention) , which this airstrike clearly was not . The international response to the airstrikes, however, was subdued and largely characterized by quiet support. Could this show an increased willingness on the part of states to accept illegal military action as “legitimate” and strengthen the case for those who argue for humanitarian intervention?

In early June, a group of Arab countries, including Saudi Arabia, the United Arab Emirates and Bahrain cut all ties with Qatar, stopping all land, air and sea traffic, expelling Qatari diplomats and some citizens, and establishing targeted sanctions against Qatari organizations and nationals. The group cited Qatar’s support for terrorist organizations as justification for these actions, although no hard evidence was produced. Despite efforts at the UN and elsewhere to end the blockade, it is still ongoing. In the absence of clear evidence that Qatar is violating any of its international obligations, the blockade may well fall fault one of the founding principles of international law: non-intervention. In this viewSaudi Arabia, the United Arab Emirates and Bahrain violate Qatar’s sovereignty by attempting to coercively interfere in Qatar’s internal affairs.

The Chagos Islands have been the subject of controversies and lawsuits for years, with disputes centering on the UK’s continued sovereignty over the islands against the will of Mauritius, the forced resettlement of its original inhabitants, the US military base on one of the islands and the proclamation by the United Kingdom of a marine protected area around the territory. Now the International Court of Justice (ICJ) will have the opportunity to clarify some of the legal issues involved. In June, the United Nations General Assembly asked the Court for an advisory opinion on the legality of the decolonization process and the consequences of the continued administration of the islands by the United Kingdom. The Court’s opinion will not be binding, but a favorable outcome for Mauritius will make the UK’s position increasingly delicate.

On July 7, 2017, the final text of Treaty on the Prohibition of Nuclear Weapons has been adopted. The treaty unambiguously prohibits the development, possession, transfer, stationing, use and threat of use of nuclear weapons. It completes the 1968 Treaty on the Non-Proliferation of Nuclear Weapons. Not surprisingly, none of the nine states that actually possess nuclear weapons have signed the new treaty, so its practical impact is likely to be very limited, at least in the short term. However, in a year where the war of words between North Korea and the United States has reached new heights, it is certainly a good development to see the 122 states that voted in favor of the treaty take a firm stand stance against nuclear weapons.

In a high-profile case on privacy in the workplace, the Grand Chamber of the European Court of Human Rights reversed an earlier court ruling on the legality of an employer monitoring an employee’s communications through work channels. The Grand Chamber found that employees have a reasonable expectation of privacy, even though their employer told them it was strictly forbidden to use their work email or chat for personal conversations. The decision will reassure anyone within the jurisdiction of the Court who is concerned about the extensive means available to their employers to control them, but leaves a number of wider questions about internet surveillance without answer.

Catalonia’s decades-long push for independence came to a head in October with the subsequent referendum and declaration of independence. At first glance, this may seem like a purely national matter, but international law sets out the requirements of statehood and the conditions under which territories can secede. In addition, international human rights law applies to the force used by the Spanish police in their attempt to prevent voters from taking part in the referendum, and we could still see a case brought before the European Court of Rights of man. Those looking for a straight answer on the legality of Catalonia’s bid for independence will be disappointed, however; opinions are Split on whether international law supports the creation of a new state in the absence of the consent of the remaining state or (more controversially) evidence of systematic repression and human rights abuses.

“Catalonia Independence Spain Flag” by lecruesois. CC0 Creative Commons through Pixabay.

The ICJ has an unwritten rule that each of the five permanent members of the Security Council has a judge on the bench. It was therefore very surprising that the British judge Sir Christopher Greenwood was not re-elected. The ICJ elections are highly politicized, and commentators were quick to attribute Greenwood’s defeat to Britain’s waning influence in the world. It is likely that the dissatisfaction of developing countries with the P5 system was also a key factor. The forthcoming absence of a British judge may yet prove to be the exception that proves the rule, but judging by the General Assembly’s strong support for re-elected Indian Judge Bhandari and newly elected Lebanese Judge Salam, this is not a safe bet.

In a year when there hasn’t been much good news for the environment, one UK Court of Appeal decision stands out: in a historical judgment, it concluded that a UK company, Vendata, can be held liable under UK law for the actions of its Zambian subsidiary Konkola Copper Mines (KCM). KCM is accused of causing significant damage to local waterways due to water discharged from one of its copper mines. The Court of Appeal concluded that given the virtual impossibility of a fair trial in Zambia and the level of control exercised by Vendata over its subsidiary, the case can proceed in the UK. Whether or not the Zambian villagers’ complaint succeeds on the merits, this judgment adds to a body of cases, in the UK and beyond, that companies can be held liable for damages caused by their subsidiaries in d ‘other countries.

The International Criminal Tribunal for the former Yugoslavia (ICTY) officially closed at the end of last year and is now replaced by the United Nations Mechanism for International Criminal Tribunals, which will deal with final appeals and legacy of the Tribunal. With nearly 100 people convicted of international crimes, the ICTY will go down in history as a turning point in the attempt to end impunity for the criminal convictions of military and political leaders. In December, the Tribunal issued a judgement in one of his most publicized cases: the prosecution of General Radko Mladić for genocide, crimes against humanity and war crimes. He was sentenced to life imprisonment. At a time when there is once again a feeling that some of the world’s worst tyrants can act with impunity, the importance of this conviction should not be underestimated, even if it is unlikely to change local perceptions of conflict and Mladić’s guilt.

In December, President Trump broke with the international consensus by declaring Jerusalem become the capital of Israel and pledged to move the US Embassy there from Tel Aviv. The status of Jerusalem is politically controversial but international law is quite clear: in its 2004 version israeli wall advisory opinion, ICJ referred in East Jerusalem as occupied Palestinian territory and, in 1980, the Security Council sentenced as a violation of international law an Israeli law proclaiming all of Jerusalem as the nation’s capital. The Security Council also called on member states to move their embassies from the city. Trump’s decision could therefore violate the obligation not to recognize an illegal situation under international law.

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Featured image credit: “Justice-2060093” by WilliamCho. Public domain CC0 via Pixabay.