From the adoption of blockbuster treaties to the myriad of legal questions raised by the fight against ISIS, international law was front and centre in many of 2015’s top news stories. These events are likely to change the shape and scope of the international legal order for years to come. This post reflects on what arguably were some of the most notable developments over the past twelve months and issues they raised.
The adoption of the Paris Agreement on Climate Change
In a year in which the news usually made for grim reading, the adoption of the Paris Agreement on Climate Change stood out as a hugely positive development. The Agreement is open to criticism and its success will depend on its implementation, but it is encouraging that international agreement can still be reached on questions as difficult as changing national energy policies for the sake of the global environment.
The (further) internationalization of the war in Syria
Syria’s civil war had already raised a number of very difficult legal questions but the fight against ISIS drew a number of third countries into the fray, raising some very thorny problems for the law on the use of force. Is the war internal or international or both, and what does that mean for the application of the law of armed conflict? Are countries like France and the UK now at war with Syria and, if so, what does that mean? Is Russia allowed to attack Syrian rebels and ISIS because Assad invited it? States’ positions on these questions, academic debate, and any future judicial challenges will shape the development of the laws of war.
The refugee crisis in Europe
Viewed through the lens of international law, the most important lesson from the refugee crisis in Europe is perhaps the failure of law to contribute meaningfully to a humanitarian disaster in the absence of political will. The 1951 Refugee Convention is clear in the status it affords refugees and numerous international human rights treaties set out minimum levels of protection that every human is entitled to, but international law’s lack of enforcement capability was made painfully clear by conditions suffered by many refugees. On a more positive note, a French court ordered that conditions be improved in the Calais refugee camp, particularly for minors, on the basis of international human rights obligations.
The negotiation and adoption of big regional trade deals
In a year that saw the death knell of the WTO’s long-suffering Doha Round, regional free trade deals were more important than ever. Negotiation of the EU-US Transatlantic Trade and Investment Partnership advanced significantly with a deal possible in 2016, while the Trans-Pacific Partnership was agreed in October by twelve Pacific Rim states, including the United States and Japan. These big deals change the shape of the international trade system and risk undermining the WTO’s successful dispute settlement system.
Mounting tension in the South China Sea
Last year saw a further ratcheting up of tensions between China and many of its neighbours in the South China Sea, as well as between China and the United States, which stepped up military patrols to assert its freedom of navigation. China was accused of artificially expanding a number of rocks and reefs in the region in an attempt to turn them into islands, which generate more maritime entitlements. In October, an ITLOS arbitral panel decided it had jurisdiction to hear the Philippines’ claims against China on the merits. China boycotted the proceedings.
Palestine became a member of the International Criminal Court
In January, Palestine lodged a declaration with the ICC accepting its jurisdiction and formally acceded to the Rome Statute. The ICC’s Prosecutor promptly started a preliminary examination into the situation in Palestine to determine whether or not it should start a proper investigation. This examination is ongoing but the expert opinion is that it is very unlikely, and perhaps undesirable, to result in a full investigation.
State surveillance and the right to privacy
Questions of privacy and surveillance remained at the forefront of debate in international law, with the UK government announcing draft legislation in November which would allow the police and security services to track citizens’ internet use. In December, a landmark European Court of Human Rights judgment found serious shortcomings in Russia’s regulation of surveillance meant that it violated the right to privacy. Underscoring the importance of this issue, the UN appointed its first ever Special Rapporteur on the right to privacy.
Continuing controversy surrounding investment arbitration
Criticism of investment arbitration continued, with commentators alarmed at the proposed provisions on arbitration in the TTIP. In June, an investment panel was first to acknowledge the impact of third-party funding on proceedings and to demand transparency on this from the parties. Later on in the year, a committee partially annulled a previous massive award against Ecuador because of issues around the investor’s identity and treaty-shopping. Whether this will be enough to satisfy critics in 2016 remains to be seen..
Key European Court of Human Rights judgments on the Nagorno-Karabakh conflict
In two landmark judgments (Chigarov and Others v Armenia and Sargsyan v Azerbaijan), the European Court found that both Armenia and Azerbaijan had violated the rights of individuals caught up in this frozen (though escalating) conflict. The decisions dealt with important questions about the European Convention of Human Rights’ reach and the need to establish property claims commissions, and are likely to influence the outcomes of thousands of similar claims still pending before the Court.
Croatia v Slovenia arbitration wiretap scandal
This was perhaps not one of the most important developments in 2015 but it was one of the most scandalous: the revelation that illicit phone calls between the Slovenian arbitrator and Slovenian agent involved in an arbitration with Croatia over a boundary dispute were secretly recorded. The recordings showed the two collaborating on how to secure the best possible outcome for Slovenia. The arbitrator resigned and Croatia withdrew from the proceedings, but the arbitration continued and an award is due in 2016.
Featured image: Elkhorn Mountain Wilderness by Bob Wick. CC BY 2.0 via Flickr.