This year was, once again, one of great political turmoil. The international legal order is not immune from the impact of the rise of populism and increasingly strained relations between many of the world’s most powerful states. A positive view is that we are witnessing a period of global re-adjustment. A more negative take is that there is a real risk of the fabric of the international legal order, created so carefully in the aftermath of the First and Second World Wars, unravelling. One of this year’s key themes reflects the political stalemate: states and private parties turned to the courts to try and resolve disputes in the absence of political or diplomatic solutions. In some cases this was successful (environmental litigation), in others it is much less likely that international litigation will bring about a lasting resolution. With that in mind, let’s take a look back at ten major events, developments, and cases that shaped international law in 2018.
1) Protecting the environment through the courts
In parallel to political efforts to stop climate change and protect the world’s environment (including, potentially, a new Global Pact for the Environment), international and domestic courts have been busy this year trying to protect environmental and intergenerational rights. In February, the International Court of Justice awarded compensation for environmental damage for the first time in Costa Rica v. Nicaragua and, soon afterwards, the Inter-American Court of Human Rights issued an important advisory opinion on the right to a healthy environment, in the context of protecting the Greater Caribbean region (more on the Court’s busy year below). At the domestic level, Colombia’s Supreme Court handed down a ground-breaking judgement granting legal personality to the Amazon region, in a case brought on behalf of 25 young people. In the Netherlands, the Court of Appeal upheld a crucial judgment in the 2015 Urgenda case, in which the Court of First Instance ordered the Dutch state to reduce greenhouse gas emissions by 25% by 2020, as compared to levels in 1990.
2) Salisbury nerve agent attack
In a sleepy British town in early March, an incident straight out of a cold war spy novel took place: a former Russian spy and his daughter were poisoned with Novichok, a military-grade, highly lethal nerve agent. Sergei and Yulia Skripal survived, but Dawn Sturgess, a local woman unconnected to the attack, died in June from accidental exposure. British intelligence, working together with several other intelligence services and analysts from the Organization for the Prohibition of Chemical Weapons, identified two Russian suspects. Theresa May, the British prime minister, characterized the attack as an unlawful use of force by Russia on UK territory. A number of consequences flow from this characterization under international law, including an argument that—however briefly—the UK and Russia were engaged in an armed conflict. Along with the murder of journalist Jamal Khashoggi in Saudi Arabia’s consulate in Istanbul in October, this episode showed that Cold War-style infringements of sovereignty are far from over. The story had a curious postscript later in the year, when it was revealed that the Netherlands had expelled four Russian nationals who were caught trying to hack the OPCW’s systems.
3) Palestine takes to the courts
With a political solution to the Israel-Palestine conflict seemingly further away than ever, the Palestinians have turned to international adjudication in an attempt to safeguard their rights and gain a diplomatic advantage. In April, Palestine filed an inter-state complaint against Israel at the UN’s Committee against Racial Discrimination, the first inter-state claim ever filed under the UN’s human rights system. In May, the Palestinian foreign minister referred the situation in Palestine to the International Criminal Court. Then in September, the Palestinian government made its most high-profile move, starting proceedings against the United States at the ICJ. Basing itself on the Vienna Convention on Diplomatic Relations, it claims that the US breached its international obligations by moving its embassy from Tel Aviv to Jerusalem. The Court’s first move will be deciding whether it has jurisdiction. The world will be watching.
4) The Western Sahara dispute and the European Union
Another territorial dispute, which has received markedly less attention, is the one between Morocco and Western Sahara. After more than forty years of conflict, and with Morocco controlling around two-thirds of its southern neighbour’s territory, no resolution is in sight, and it is creating headaches for the EU’s relationship with Morocco. In February, the European Court of Justice decided that the EU-Morocco fisheries agreement cannot apply to waters adjacent to Western Sahara, confirming in the process that it has the power to test the compliance of international agreements concluded by the EU with international law. A few months later, the European Commission adjusted the EU-Morocco Association Agreement to extend benefits to products originating in Western Sahara. It seems that, for the Court, the principle of self-determination trumps political and trade considerations. Whether the same can be said for the Commission is less clear.
5) The crime of aggression comes within the International Criminal Court’s jurisdiction
Twenty years after the Rome Statute was signed and nearly eight years after International Criminal Court Member States agreed on its definition, the crime of aggression became a crime within the Court’s jurisdiction. Only nationals of states who have accepted the relevant amendments to the Statute can be prosecuted and then only if the crimes aren’t committed on the territory of a state that has opted out of jurisdiction, but the impact could still be momentous. Proponents of the criminalization of aggression argue that it will end impunity for starting an illegal war; opponents claim it is unlikely to lead to successful prosecutions, and could derail future humanitarian interventions aimed at stopping atrocities being committed against civilians (whether those interventions are desirable in the first place is a whole different debate..). Either way, the entry into force of the crime of aggression is a good story for the Court, in a year was marked by the acquittal by the Appeals Chamber of Central African Republic warlord Jean-Pierre Bemba, nearly eight years after his trial first started.
6) Interesting times in San José
Many international courts and tribunals have seen an uptick in cases in the last few years, but perhaps none as dramatically as the Inter-American Court of Human Rights. At a time when several South American countries appear to be moving away from the international rule of law and protection of human rights, the Court is proving a beacon of hope. Among other decisions, the Court held in an advisory opinion that governments must allow citizens to change their name and records in accordance with their gender identity and same-sex couples have the right to marry; it upheld the political rights of critics of the government in Venezuela; and, in a wide-ranging opinion on the protection of the environment, that, in certain cases, states can have jurisdiction over environmental crimes even if they are committed outside of their territory.
7) Trade wars: national security and the World Trade Organization
This was also the year that the trade war between the US and the EU, Canada, and China kicked off in earnest. Tariffs have been slapped on goods worth hundreds of billions of dollars, with the potential to seriously disrupt the post-war world trading system. Lawsuits have started to fly at the World Trade Organization. Much will hinge on the scope of the ‘national security exception’, the defence invoked by the US to impose tariffs on European steel and aluminium. Whether or not the WTO will be able to conclusively answer that question is up in the air: the US’ refusal to allow new appointments to the WTO’s Appellate Body means that the dispute settlement system—one of international law’s most successful—could grind to a halt as early as next year.
8) The Global Migration Compact
A number of other crises have pulled the spotlight away from the global migration crisis, but refugees and migrants continued to brave the journey to Europe in their hundreds of thousands. Over 700,000 Rohingya refugees are stuck in the Cox’s bazaar camp in Bangladesh. With the global political climate turning against welcoming refugees, the battle between those seeking to help them or to turn them back is increasingly playing out in the courts. Against this background, the Global Compact on Migration was adopted in December. The Compact is a ground-breaking agreement, negotiated by governments under the auspices of the United Nations, which comprehensively covers all dimensions of international migration. Its provisions are not legally binding in the traditional way, but it could prove highly influential.
9) A genuine chance to reform investor-state arbitration
Years of increasing dissatisfaction with the current investor-state arbitration system have finally led to a real push for change: in October, states decided at a meeting of the United Nations Commission on International Trade Law (UNCITRAL) to reform the system. The list of discontents is long, but focuses on the perceived unfair nature of investment arbitration, which is often seen to favour the rights of investors over (developing) states’ regulatory freedom, as well as inconsistent awards, an extreme lack of diversity among arbitrators, and the cost and length of proceedings. The next step is for states to decide on a list of potential reforms. Proposals range from keeping the current system of ad hoc arbitral panels but with more transparency and a better process for reviewing inconsistent or incorrect awards, to a permanent Multilateral Investment Court or Appellate Body. Discussions will continue in Commission’s Working Group in 2019. In another sign of the times, the International Court of Justice has announced that its judges will no longer sit as arbitrators on investment dispute panels. This had previously been a common, and lucrative, side line for many judges.
10) The centenary of World War I
This year marked the centenary of the end of World War I. Even after 100 years, the suffering caused by WWI is staggering: it killed between 15-20 million combatants and civilians. That is over 1% of the total world population at the time. Just as many were wounded. It is no surprise that end of the War marked the first real attempt to create a global legal order which could avoid future wars. The Covenant of the League of Nations revolutionized international relations by obliging its Member States not to resort to war to settle their disputes, which were to be submitted instead to the newly created Permanent Court of Arbitration and Permanent Court of International Justice. If the Allied Powers had managed to get their hands on Kaiser Wilhelm II, the first international criminal trial for aggression might even have happened. The system created after WWI eventually buckled under its own ambition, but it provided the blueprint for the legal order we have today. One hopes that today’s political leaders will reflect on the two global catastrophes that provided the impetus for the creation of the international legal system, before they take steps to dismantle it.
Featured image credit: “Backpack, light, atlas” by Arthur Edelman. Public domain via Unsplash.