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Security Council Resolution 2231 and the Joint Comprehensive Plan of Action on Iran’s Nuclear Program

Published on July 27, 2015        Author: 

Last week I did a couple of posts elsewhere on the Joint Comprehensive Plan of Action (JCPOA), agreed on July 14 between the P5+1 and Iran regarding Iran’s nuclear program. See here and here. These posts may be of interest in explaining the essential agreement contained in the JCPOA, and in examining some of its key legal implications.

The JCPOA is the culmination of twenty months of negotiations between the P5+1 and Iran, since the initial Joint Plan of Action (JPOA) was agreed by the parties in November 2013. I wrote a post discussing the JPOA here at EJIL:Talk! at the time it was agreed.

I’d like to focus this post on the unanimous passage by the U.N. Security Council on July 20 of Resolution 2231, which can be found here. Resolution 2231 comprises 104 pages of text, inclusive of two annexes, one of which is the entire JCPOA text. I mention this because my primary impression in reading over Resolution 2231 and is annexes for the first time, was frankly astonishment that the parties had been able to agree on such an amazingly complex, thorough and comprehensive diplomatic accord. I was also impressed by the precision of the text of Resolution 2231 itself (apart from a couple of typos) in implementing, in what appears to be a very sophisticated and, as far as I can tell, correct way, the agreement reached by the parties on July 14.

The JCPOA itself and Resolution 2231 appear to represent a major success of international diplomacy, as well as a significant achievement of international law in facilitating the implementation of the diplomatic accord. Again, it is difficult to overstate the complexity of the issues that had to be resolved among the parties to arrive at both the JCPOA and Resolution 2231. And the specificity with which these issues were addressed in both documents – down to weights and measures and dates of implementation – is frankly astonishing, and far exceeds my expectations.  And so I compliment all of the diplomats and lawyers involved. Read the rest of this entry…

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Announcements: CfP, Legal Theory/Philosophy Conference on European Values (Ljubljana); New Additions to UN Audiovisual Library

Published on July 25, 2015        Author: 

1.  Call for papers, 2015 Legal Theory and Legal Philosophy Conference (20 and 21 November 2015, Ljubljana): In Search of Basic European Values.” The Graduate School of Government and European Studies and the European Faculty of Law, both Slovenia, invite researchers undertaking research on public law, human rights , legal theory and legal philosophy to submit abstracts for participation at the 2015 Legal Theory and Legal Philosophy Conference (20 and 21 November 2015, Ljubljana) under the title “In Search of Basic European Values”. Interested applicants should send a 250-word abstract and a CV in narrative form by 1 September 2015 to jernej.letnar {at} fds(.)si. Authors will be notified of acceptance by 15 September 2015. If you have any questions, please write to dignitas {at} fds(.)si. More information is available here.

2.  New additions to the UN Audiovisual Library of International Law.  The Codification Division of the UN Office of Legal Affairs recently added new lectures to the UN Audiovisual Library of International Law  website, which provides high quality international law training and research materials to an unlimited number of recipients around the world free of charge. Two complete courses were given by Professor Laurence Boisson de Chazournes on “Droit international de l’environnement”; Professor Makane Mbengue on “Introduction au droit de l’OMC”; The latest lectures were given by Professor André Nollkaemper on “Shared Responsibility in International Law”; Judge Bennouna of the ICJ on “La Cour internationale de Justice et les droits de l’homme”; Judge Tomka of the ICJ on “The Special Agreement as a Way of Submitting Disputes to the International Court of Justice” and several lectures by Judge Cançado Trindade of the ICJ: “The Human Person and International Justice”; “L’humanisation du droit international”; “The Founding Fathers of International Law” and “Le système interaméricain de protection des droits de l’homme”.

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Living Instruments, Judicial Impotence, and the Trajectories of Gay Rights in Europe and in the United States

Published on July 23, 2015        Author: 

Evolutionary or dynamic interpretation is one of those perennial ‘big’ topics, which we e.g. recently dealt with in our book discussion on Eirik Bjorge’s recent work on the topic. Judicial pronouncements on LGBT rights are an excellent example of this phenomenon (for some of my earlier thoughts on this, see here). In particular, on 26 June the US Supreme Court rendered its blockbuster ruling in Obergefell v. Hodges, in which it held (per Justice Kennedy, and by 5 votes to 4) that the US Constitution requires full marriage equality between same-sex and different-sex couples. On reading this judgment, as well as some of the recent cases on similar questions before the European Court of Human Rights, I was struck by several points on the practical realities of dynamic interpretation that I’d like to raise in this post.

First, it really is striking that despite the many differences in the text of the relevant instruments, their history, the institutional make-up or legal culture generally, US and European courts both look at gay rights generally (or the issue of gay marriage specifically) through the same analytical lenses: on the one hand there’s private life, family life or individual liberty (or in US parlance substantive due process under the Fourteenth Amendment to the US Constitution); on the other hand, there’s equality or non-discrimination. And while there are many differences in the concrete legal tests being applied (e.g. proportionality in Europe, tiered levels of scrutiny in the US), there are many conceptual similarities as well.

Second, in both Europe and in the US most gay rights cases, whether under privacy/liberty or under equality, boil down to one basic, fundamental problem: if a right or legitimate interest is interfered with or restricted by the state (e.g. gays are denied the right to marry), what is the justification offered by the state for that restriction, and how then should a court assess that justification. In particular, can such a restriction ever be justified by reference to public morals, or tradition, or disapproval of a particular group or behaviour alone, absent any objectively identifiable, concrete individual or societal harm. One reason why Obergefell came out the way it did was that the opponents of gay marriage were simply unable to articulate any concrete harm to anyone; each argument they tried to make of that type was easily disprovable (e.g. if marriage is inextricably tied to procreation, why then do we allow infertile couples to get married, etc. – for an example of pretty brutal judicial questioning along these lines, one need only listen to this oral argument before Judge Richard Posner, and read this judgment.)

In other words, the big question is whether it would ever be legitimate to restrict marriage to opposite-sex couples simply because ‘we’ (say the majority in a popularly elected parliament) believe that same-sex couples are icky and yucky. Is a feeling or sentiment of yuckiness (or sinfulness, turpitude, taboo, whatever) enough to deny people legal rights? Many lawyers would stop here and simply say that such irrational considerations cannot form the basis for running a legal system. But wait – in the European Convention (unlike in the US Bill of Rights) we actually have explicit references to the protection of morals in the limitation clauses of several articles, including Article 8. And in fact the Court has said, for example, that it’s fine to keep a person in prison simply because that person chooses to walk in public without wearing any clothes, even though he causes no concrete harm to others in so doing – remember that naked rambler dude? He’s still naked, and still in prison (9 years on! – see here and here for very recent developments). And if yuckiness alone does not suffice, what then of polygamy or consensual adult incest and the like (and we do have cases like that), or some other parade of horribles?

Read the rest of this entry…

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Announcement: CfP on Human Rights, Public Policy, Democracy & Governance

Published on July 19, 2015        Author: 

Call for papers on Human Rights Protection, Human Rights Public Policies, Democracy and Governance: The International Journal of Human Rights and Constitutional Studies (IJHRCS) is currently seeking submissions on Human Rights Protection, Human Rights Public Policies and Democracy and Governance.  The coming issues aim at providing an opportunity for scholars and practitioners to explore novel and original material on the above areas, including themes relating to the current economic and political crises; globalised democratic governance; migration and multiculturalism; democratic deficit theory; digital participation, e-democracy, e-governance.   We welcome the submission from scholars around the world and would like to encourage young law researchers especially to submit their recent works. Articles previously published cover researches both doctrinal and inter-disciplinary.  Please click here for submission details.

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Russian Constitutional Court Affirms Russian Constitution’s Supremacy over ECtHR Decisions

Published on July 15, 2015        Author: 

On 1 July 2015 a group of Russian MPs requested the Russian Constitutional Court (RCC) to check the constitutionality of the Federal Law ‘On ratification of ECHR’, the Federal Law ‘On international treaties’, and a number of procedural norms. According to the applicants,

‘participation in international cooperation should not lead to a breach of human rights or contradict the fundamental principles of the constitutional system. In their view, the contested rules oblige the courts and other state bodies to implement unconditionally ECtHR decisions, even if they contradicted the Russian Constitution. As a result … the person who applies the law is put in an impossible situation, because such a conflict might be insoluble.’

Although the RCC held that the contested norms do not conflict with the Constitution, thus leaving the de jure legal status of the Convention intact, this ruling and its high publicity in Russian media clearly signifies a change in the political attitude towards the implementation of decisions of the European Court.

Position of the Constitutional Court

The Court confirmed that the contested norms do not contradict the Constitution. Thus, the Convention remains part of Russian legal system, according to Article 15 (part 4) of the Constitution. However, the Court reasoned that

‘the participation of the Russian Federation in any international treaty does not mean giving up national sovereignty. Neither the ECHR, nor the legal positions of the ECtHR based on it, can cancel the priority of the Constitution. Their practical implementation in the Russian legal system is only possible through recognition of the supremacy of the Constitution’s legal force.’

There is no revolution in admitting that ‘both the Constitution and the European Convention are based on shared basic values’ and that ‘in the vast majority of cases no conflict between the two documents can appear at all.’ There have hardly been any conflicts since 1998, when Russia ratified the Convention. However, when it comes to interpretation, apparently the position can differ. Read the rest of this entry…

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The Shameful Twenty Years of Srebrenica

Published on July 13, 2015        Author: 

In the great catalogue of human misery, the July 1995 Srebrenica genocide merits a special mention. But as horrible as the slaughter of more than 7,000 Bosnian Muslim men and boys was – unquestionably the worst crime of the whole brutal Bosnian conflict – the repeated, ongoing and unrelenting denial of the crime is if not worse, then at least as depressing. Today, twenty years on, that revisionist denial is strongest where it matters – in Republika Srpska and in Serbia – and its strength demonstrates the continued, long-term inability of these communities to come to terms with the past.

The denial is manifold, in forms both hard and soft. It ranges from a complete rejection that any crime took place, to disputing the number of victims or who the victims were, to emphasizing crimes against Serbs around Srebrenica or inflating the numbers of Serbs killed, to disputing the characterization of the crime as genocide as if that makes some actual moral difference. And, it needs to be said, that denial is virtually unaffected by whatever the International Criminal Tribunal for the Former Yugoslavia or the International Court of Justice said on the matter.

To demonstrate the scale of denial in cold, hard numbers, it suffices to take a look at a February 2012 survey of public opinion in Bosnia, sponsored by the Belgrade Centre for Human Rights and the OSCE and conducted by Ipsos Strategic Marketing (detailed results on file with me). The survey found that of the (mostly Serb) population of the Republika Srpska only 59.2% say that they even heard of a massacre in Srebrenica, while only 34.8% of the people who say that they’ve heard of the crime believe that it actually happened. Thus, of the whole RS population 40.8% say they’ve never even heard of any massacre in Srebrenica, 38.6% say that they’ve heard of it but that it never happened, and only 20.6% believe it did. That, dear readers, is what ‘truth and reconciliation’ in today’s Bosnia look like.

Read the rest of this entry…

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Announcement: CfP on Investment Treaty Arbitration and Environmental Disputes (Oslo)

Published on July 11, 2015        Author: 

The Present and Future Role of Investment Treaty Arbitration in Adjudicating Environmental Disputes (Oslo, 5-6 November 2015) – Call for Papers, Deadline: 15 July 2015. PluriCourts, Centre of Excellence at the University of Oslo, is organizing an international symposium entitled ‘The Present and Future Role of Investment Treaty Arbitration in Adjudicating Environmental Disputes’. The symposium will be hosted at the faculty of law of the University of Oslo on November 5 and 6, 2015. Symposium Theme: The symposium will focus on investment treaty arbitration from a forward-looking perspective on how future practice might be shaped or reformed in a way that can both promote environmental sustainability and protect responsible and legitimate foreign investments. Call for Papers: We invite scholars, practitioners and doctoral students to submit paper proposals for presentations on topics related to the symposium’s theme. The deadline for submission is July 15, 2015. For more information, please visit the website of the symposium.

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Thawing the Frozen Conflict? The European Court’s Nagorno-Karabakh Judgments

Published on July 6, 2015        Author: 

Last September, Erik Fribergh, the Registrar of the European Court of Human Rights, told Government representatives on the Steering Committee for Human Rights (CDDH) that ‘the Court is … not equipped to deal with large scale abuses of human rights. It cannot settle war-like conflicts between States.’ Yet, as Fribergh noted, the Court is increasingly being called on to adjudicate on such situations. Through the two Grand Chamber judgments delivered on 16 June (Sargsyan v Azerbaijan and Chiragov v Armenia) has the European Court entered into the terrain of international conflict resolution?

Both judgments upheld the European Convention rights of families displaced by the Nagorno-Karabakh conflict in the early 1990s, a conflict that created hundreds of thousands of refugees and internally-displaced persons (IDPs) on both sides, and which has remained unresolved in the ensuing decades. Peace negotiations have been held under the auspices of the OSCE ‘Minsk Group’ (co-chaired by France, Russia and the United States), but as the judgments make clear, settlement negotiations have repeatedly failed, due to the uncompromising attitudes of both Governments. The cases are legally important, given the Court’s position on the jurisdictional reach of the Convention, which Marko Milanovic has previously discussed here. They are politically significant too – in emphasising the importance of the two states establishing a property claims mechanism, and giving the parties to the cases 12 months to come back with proposals on redress, the Court has arguably given significant fresh impetus to the resolution of the ‘frozen conflict’.

Read the rest of this entry…

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Announcement: Conference on Comparative Foreign Relations Law (Geneva)

Published on July 4, 2015        Author: 

Duke University-Geneva Conference on Comparative Foreign Relations Law: Courts, Treaties, Custom and the Use of Force. July 10-11, 2015, Université de Genève. In July 2015, as part of its summer Institute in Transnational Law, Duke Law School will be hosting a conference on the topic of “comparative foreign relations law.”  The conference, which will be held at the University of Geneva, will consider similarities and differences in how nations (and the European Union as an entity) handle various issues of foreign relations law, including the incorporation of international law, the process for concluding international agreements, the accommodation of federalism and other structural values, and the decision to use military force.  Scholars from various countries will present short papers outlining how these issues are addressed in their countries or in the EU, and scholars from the United States will draw comparisons to U.S. practice.  A number of the U.S. participants are Reporters for the American Law Institute’s current Restatement (Fourth) project on Foreign Relations Law, and this conference will provide a useful opportunity for them to gain comparative perspectives on the issues they are considering. For more details and registration, see here.

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The International Court of Justice and the Concept of Aggression: Lessons for the ICC?

Published on July 3, 2015        Author: 

The Kampala Amendments to the Statute of the International Criminal Court (ICC) adopted in June 2010 define the crime of aggression for the purposes of the ICC Statute and set out the conditions under which the ICC will exercise jurisdiction with respect to that crime. It was decided in Kampala that the aggression amendments will only become operational, in the sense that the ICC can only exercise jurisdiction over the crime of aggression: (i) one year after the aggression amendments have come into force for at least 30 States and (ii) if the ICC Assembly of State Parties adopts a further decision to activate that jurisdiction, with 1 January 2017 being the earliest date for the adoption of that decision [Arts. 15 bis (2) & (3) & 15ter (2) & (3), ICC Statute]. Given that 23 states have now ratified or accepted the aggression amendments and that 1 January 2017 is under 18 months away, the activation of the ICC’s jurisdiction over the crime of aggression is not very far away at all [see this report on action by other states considering ratification]. As that moment – when the ICC is able to exercise jurisdiction over aggression approaches – attention will turn (back) to a couple of issues that remain unresolved with respect to the interpretation of the Kampala amendments. One of those issues is whether the Court will be entitled to exercise jurisdiction over the nationals of a party to the Rome Statute which has not accepted the aggression amendments but which is alleged to have committed aggression on the territory of a state party that has ratified or accepted those amendments (see previous discussion here & here). The second issue is the interpretation to be given to the definition of the crime of aggression under the Kampala amendments.

Article 8 bis(1), of the ICC Statute provides that: “For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”

The relationship between the concept of the “crime of aggression” and of “act of aggression” under the ICC Statute and under general international law respectively remains unclear. Under the Kampala amendment only an “act of aggression” which by “character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations” can amount to the “crime of aggression” attracting individual criminal responsibility. Despite attempts in interpretive Understandings adopted in Kampala to give guidance with respect to the definition of the crime, the ICC will have its work cut out in establishing what amounts to a manifest violation of the UN Charter such that it should be regarded as the crime of aggression.

As the concept of aggression is one which relates not merely to individual criminal responsibility but builds on state responsibility for unlawful uses of force, it is instructive to examine how the International Court of Justice (ICJ) has dealt with the concept of aggression. Read the rest of this entry…

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