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The ECtHR and the Regulation of Transnational Surrogacy Agreements

Published on July 25, 2014        Author: 

ivana6-1Ivana Isailović is a post-doctoral researcher at the Perelman Center for Legal Philosophy (Université libre de Bruxelles) and is affiliated with the IAP, Human Rights Integration Project.

In a number of recent cases, French courts refused to give effect to US court decisions that recognized French intending parents as legal parents of children born through surrogacy agreements and to inscribe the foreign filiation into the French civil status registry. In the decisions in Mennesson v. France and Labassee v. France, the European Court of Human Rights (ECtHR) ruled that those refusals violated children’s right to private and family life, protected by article 8 of the European Convention on Human Rights. It dismissed claims based on the breach of parent’s right to private and family life and on violations of article 14 (non-discrimination), article 6-1 (right to a fair trial) and article 12 (right to marry).

This is the first time the ECtHR has considered the question of transnational surrogacy. The decisions tackle some of the vexing issues related to the regulation of the booming global surrogacy market. These issues include ethical and political concerns related to the commodification of the body. Also in question are the definitions of citizenship and parenthood in a context in which the differences between domestic regimes illustrate a variety of cultural and political understandings of filiation and parenthood. This post focuses on the latter set of issues and the legal uncertainties they create.

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The Downing of MH17 and the Potential Involvement of International Courts

Published on July 22, 2014        Author: 

I do not at all want to trivialize the human tragedy that is the downing of Malaysia Airlines flight MH17 over Ukraine last week, nor for that matter the parallel unfolding tragedies on the ground in Ukraine and in Israel and Gaza, by engaging in some premature lawyerly analysis. But, in reading on the unfolding story of the aircraft’s demise, I nonetheless couldn’t help but think how that story is very likely to find its epilogue in an international courtroom. The facts of MH17′s destruction are obviously far from clear, and are not going to become much clearer in the near future, but the number of possible scenarios is limited – the aircraft was (most likely) destroyed by Ukrainian rebels with Russian-supplied weapons, or (less likely) by either Ukranian or Russian state agents (who may have acted ultra vires). And not only did the downing of MH17 deepen a major existing international crisis, but it directly affected a number of states other than Ukraine and Russia, such as Malaysia and the Netherlands, not to mention the families of the victims themselves. This raises both the incentives and the opportunities for international litigation, in addition to whatever proceedings may ensue before domestic courts or international fact-finding missions.

Consider, first, the possibility that a case or cases regarding MH17 might end up before the European Court of Human Rights. Both Russia and Ukraine are of course parties to the ECHR, and readers will recall that one of the first acts of the new government in Kiev in response to the Crimea crisis was to lodge an inter-state application against Russia in Strasbourg, on which the Court ordered provisional measures. It is perfectly possible for the downing of MH17 to be an issue in the existing or a new inter-state case, or indeed one brought by a third state, such as the Netherlands, since the majority of the victims had Dutch nationality. And obviously the families of the victims may also bring individual applications against either Russia or Ukraine.

In addition to whatever direct involvement these states may have had in the destruction of the aircraft, they could also be held liable for other internationally wrongful acts. For example, Ukraine could be responsible for failing to secure the right to life of the victims and failing to comply with its substantive positive obligations under Article 2 ECHR by deciding not to close the relevant airspace for civilian traffic. Russia could be held responsible for providing the rebels with anti-aircraft weaponry without sufficient safeguards (e.g. appropriate training of the missile crews), thus creating the risk that this weaponry could be used against civilian targets. Both states could be held responsible for failing to secure an effective investigation into the incident. Obviously the facts could yet develop and some very complex preliminary issues could arise (e.g. the extent of Russia’s control over the Ukrainian rebels and the question of the ECHR’s extraterritorial application), but all these points seem arguable.

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From Targeted Sanctions to Targeted Settlements: International Law-Making Through Effective Means

Published on July 22, 2014        Author: 

2014.07.20.MarijaMarija Đorđeska, LL.M., is a Thomas Buergenthal Scholar and an S.J.D. Candidate at the George Washington University Law School, in Washington D.C.

The U.S. Office of Foreign Assets Control of the Department of Treasury (OFAC) has again shocked the international financial community with a recent settlement with BNP Paribas, France’s largest financial institution. BNP Paribas was accused of violating U.S. sanctions against Iran, Sudan, Burma and Cuba from 2005 to 2012. For $8.9 billion in compensation – the priciest settlement to date – OFAC pardoned BNP Paribas and its subsidiaries from their civil liability under U.S. law. (Settlement Agreement [30], see also Enforcement Information for June 30, 2014).

OFAC is aggressively and effectively applying U.S. sanctions law to foreign institutions incorporated and doing business abroad, without taking into consideration foreign domestic legal regimes or international standards. French President François Hollande expressed his disapproval of the penalty imposed on BNP Paribas. The settlement should also cause concern among European and international lawyers, as BNP Paribas is the ninth European financial institution to be sanctioned since 2006 for processing funds for entities subject to U.S. sanctions. By threatening to cut off foreign financial institutions from the U.S. market, OFAC precludes these financial institutions from publicly and transparently arguing their case in legal proceedings (Settlement Agreement [31]). OFAC is establishing a precedent of a new, efficient, and not yet legal method for asserting U.S. laws abroad, bypassing the traditional territoriality principle of jurisdiction.

In the documents that are publicly available, OFAC does not mention any legal grounds on which it claims jurisdiction, leaving it unclear on what basis the U.S. can sanction transactions initiated abroad by foreign entities or the clearing of US dollars outside the U.S. (Factual Statement [34]) or regulate foreign exchange transactions (Settlement Agreement [12, 13]). Because the settlement negotiations were not made public, and BNP Paribas also waived its right to “any possible legal objection,” (Settlement Agreement [31]) the substantive public debate on the issue is necessarily limited.

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EJIL: Live! Special Episode on the Serdar Mohammed Judgment

Published on July 21, 2014        Author: 

In additional to the regular episodes of our EJIL: Live! podcast, which follow each issue of the Journal, we will also publish special episodes which deal with recent events or current issues. The first such episode is now live – a conversation between Guy Sinclair, Dapo Akande and me on the Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB) judgment, dealing with various issues regarding the lawfulness under the ECHR of the preventive detention of suspected terrorists in Afghanistan. For our previous coverage of that case, see here, here, here and here.

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Announcement: Workshop on Procedural Fairness

Published on July 20, 2014        Author: 

The Surrey International Law Centre of the University of Surrey School of Law, with the support of the Institute of Advanced Studies, the McCoubrey Centre of the University of Hull and the British Institute of International and Comparative Law, will host a two-day workshop on the identification of core standards of procedural fairness before international courts and tribunals. All interested persons are warmly invited to participate in the workshop and should register by 31 August. Full details, including the workshop programme, may be accessed at the workshop website.

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OHCHR Publishes Report on Surveillance and Privacy in the Digital Age

Published on July 18, 2014        Author: 

Readers will recall that in its resolution on the right to privacy in the digital age the UN General Assembly had requested the Office of the High Commissioner for Human Rights to prepare a report for the next GA session on the various issues raised by mass electronic surveillance and the human right to privacy (see here for our previous coverage). An advance edited version of that report (A/HRC/27/37) is now available here. The report is rich, thoughtful and very much pro-privacy in the surveillance context, albeit not in a blind, fundamentalist way. It reaffirms that the right to privacy, as set out in Article 17 ICCPR or Article 8 ECHR, provides a framework within which the legality of surveillance measures needs to be assessed. While it acknowledges the legitimate governmental interests that surveillance may serve, it finds the existing institutional and legal arrangements in many states wanting and in need of further study and reform. Here are some of the highlights:

- It is important to consider linkages with other possible human rights violations, e.g. the collection of intelligence through surveillance that is later used for an unlawful targeted killing (para. 14).

- Interferences with the privacy of electronic communication cannot be justified by reference to some supposedly voluntary surrender of privacy on the Internet by individual users (para. 18).

- Collection of communications metadata can be just as bad in terms of privacy interference as the collection of the content of the communication (para. 19).

- Because of the chilling effect of surveillance: ‘The very existence of a mass surveillance programme thus creates an interference with privacy.’ (para. 20).

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Transatlantic Roundtable on Challenges to IHL

Published on July 16, 2014        Author: 

This week, leading academics and practitioners from the US, UK, continental Europe, and Israel will gather at the University of Oxford to discuss a range of IHL-related issues – from addressing violations of the rules of war to military ops that go beyond the traditional battlefield.  The two-day roundtable discussion will focus on transatlantic issues relating to international humanitarian law (IHL). Civilian and military participants from Canada, the United States, the United Kingdom, continental Europe and Israel will address a variety of IHL issues of concern to their own States, as well as relating to cooperation between States. The idea is to share ideas across borders in order to exchange approaches to various IHL and national security issues and advance the dialogue on these issues. The roundtable is organized by the International Committee of the Red Cross’ delegations in Washington, D.C. and London, the Oxford Institute for Ethics, Law and Armed Conflict, the Oxford Martin Programme on Human Rights for Future Generations , the Robert S. Strauss Center for International Security and Law at the University of Texas, and the South Texas College of Law.

Participants will discuss the following topics:

- Updates in the overlap between IHL and IHRL

What have the major updates in the interplay between IHL and International Human Rights Law (IHRL) been over the past year? Has IHRL gone too far into influencing IHL? What are the effects of this interplay?

 - Accountability for violations of IHL

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Two Articles on the Relationship between IHL and IHRL

Published on July 14, 2014        Author: 

Readers interested in my four scenarios on the relationship between international humanitarian law and international human rights law who want to know how I would decide them, as well as those who’ve read coverage of the Serdar Mohammed v. MoD judgment, might also be interested in two companion articles I recently posted on SSRN. The first is called Extraterritorial Derogations from Human Rights Treaties in Armed Conflict. In a nutshell it argues that states can and should resort to derogations from human rights treaties in extraterritorial situations, for example that the UK could have derogated (but chose not to) from the ECHR with respect to situations in Iraq and Afghanistan. The second piece is entitled The Lost Origins of Lex Specialis: Rethinking the Relationship between Human Rights and International Humanitarian Law and it mainly deals with the genesis of the lex specialis principle and analyses the three different conceptions thereof. The abstracts are below the fold, and comments are as always welcome.

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Four Scenarios on the Relationship between IHL and IHRL

Published on July 9, 2014        Author: 

The issue of the relationship between international humanitarian law and international human rights law is often mixed together with other difficult questions of international law. This is not very conducive to conceptual clarity. One way of advancing that clarity is to construct hypotheticals which isolate as many of the various issues as possible, so that we can through a thought experiment better appreciate both how they operate individually and how they interact with one another, and move through them carefully, step by step, while resisting the temptation of introducing further complicating considerations.

In this post I’ll present four such (not so) hypothetical scenarios. These are the quintessential hard cases: they all deal at least with an apparent conflict between IHRL and IHL with regard to the use of lethal force and preventive security detention without judicial review. This is not to dispute that in the vast majority of other situations IHRL and IHL would be complementary. My reason for focusing on the hard cases is that they allow us to address more clearly conceptual questions such as the nature and utility of the lex specialis principle.

Scenario 1: NIAC

State A is a party to both the ICCPR and the ECHR. A non-international armed conflict is taking place on its territory, between the state’s forces and those of a non-state actor, B, an organized armed group. The constituent elements of the NIAC threshold are met beyond any doubt. In an operation during the dead of night, A’s forces kill a dozen of B’s fighters sleeping in a barracks (e.g. by shelling it from a distance), presumably doing so in complete accordance with the applicable IHL rules on targeting. From the facts on the ground, however, it was clear that A’s forces were perfectly capable of capturing B’s fighters had they wanted to do so, with little or no risk to A’s own soldiers. Indeed, B’s fighters sleeping in an adjacent barracks were captured and detained by A as threats to state security for the duration of the NIAC, without criminal charge, and without any judicial review of the legality of the detention.

Questions:

1)     Do the ICCPR and the ECHR apply in principle to the killing and detention of B’s fighters, i.e. did these individuals have human rights vis-à-vis A? Assuming that the answer to this question is yes:

2)     Was the killing of B’s fighters lawful under Article 6 ICCPR? Why or why not?

3)     Was the killing of B’s fighters lawful under Article 2 ECHR? Why or why not?

4)     Was the detention of B’s fighters lawful under Article 9 ICCPR? Why or why not?

5)     Was the detention of B’s fighters lawful under Article 5 ECHR? Why or why not?

6)     Would a derogation under either treaty be permissible, and if so would the prior existence of a derogation have any impact on the analysis under questions 2-5?

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S.A.S. v France: Living Together or Increased Social Division?

Published on July 7, 2014        Author: 

On 1 July, the European Court of Human Rights (ECtHR) has delivered, in a public hearing, its judgment in the case of S.A.S. v France. This case is a challenge of the French legislation prohibiting the wearing of face-covering clothing in all public spaces. In a post on this blog, Stephanie Berry discusses the case and points out a number of positive developments, including the balanced and well-reasoned nature of the judgment, the rejection of the gender equality and human dignity arguments for the burqaban, as she refers to the French law, and the consideration that this ban was not necessary for public safety in the absence of concrete evidence. However, Berry criticises the ECtHR for accepting that the ban pursues the legitimate aim of ‘living together’ under the ‘protection of the rights and freedoms of others’. Berry points out that this concept pursues a distinctly assimilationist agenda. I agree with Berry that this is a worrying development. In this post, I examine this concept of ‘living together’ in more detail and explain why this is such a worrying development. I will not discuss other aspects of the judgment.

First of all, what does this concept mean? The ECtHR mentions that the ‘Report on the wearing of the full-face veil on national territory’ criticises the wearing of the full-face veil as ‘a practice at odds with the values of the Republic’ and as ‘a denial of fraternity, constituting a negation of contact with others and a flagrant infringement of the French principle of living together’ (para. 17). It also refers to the explanatory memorandum to the relevant law, which states that ‘the wearing of the full veil is the sectarian manifestation of a rejection of the values of the Republic’; that ‘the voluntary and systematic concealment of the face is problematic because it is quite simply incompatible with the fundamental requirements of “living together” in French society’; and, that it ‘falls short of the minimum requirement of civility necessary for social interaction’ (para. 25). The French Government stated that one of the aims of the law was the observance of the minimum requirements of life in society because the face plays a significant role in human interaction, and the effect of concealing one’s face in public places is to break the social tie and to manifest a refusal of the principle of ‘living together’ (para 82, and for a similar argument from the Belgian government: para. 87).

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