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Unconstitutional and Invalid: South Africa’s Withdrawal from the ICC Barred (For Now)

Published on February 27, 2017        Author: 

On 22 February 2017, the South African High Court handed down a significant decision invalidating South Africa’s notice of withdrawal from the International Criminal Court (ICC). The case was brought by the official opposition party, the Democratic Alliance, and joined by a number of civil society actors. The court’s conclusion that prior parliamentary approval was necessary before South Africa could withdraw from the ICC bears similarities to the recent decision of the UK Supreme Court on the UK’s withdrawal from the European Union.

The South African judgment concerned the decision of the Minister of International Relations and Cooperation to send a notice of withdrawal to the UN Secretary-General in October 2016 (see my previous post on this for more details), without prior announcement that the government had decided to withdraw from the ICC, nor any public consultation on the matter. The government’s reasons for leaving the ICC, as surveyed by Dapo, had centred on the claim that the Rome Statute and the South African legislation domesticating the Rome Statute (the ‘Implementation of the Rome Statute of the International Criminal Court Act of 2002’), required the government to arrest sitting African heads of State, contrary to customary international law rules on immunity. This, it was argued, undermined South Africa’s peace-making efforts on the Continent. These issues had come to a head during President Bashir’s visit to South Africa in June 2015, when South Africa had failed to execute outstanding ICC arrest warrants against him. This led to non-cooperation proceedings against South Africa at the ICC (which will take place in April), and South African High Court and Supreme Court of Appeal decisions holding the government’s failure to arrest President Bashir to be unconstitutional. The pushback was not well received by the South African Executive.

Given the 12-month notice period prescribed in Article 127(1) of the Rome Statute of the ICC, South Africa was set to leave the court in October 2017. However, the High Court decision has, at the very least, pushed back the timeline for withdrawal (absent a rapid successful appeal by the government). It also presents an important, and perhaps final, opportunity to engage the government concerning its decision to leave the ICC. Here I give a brief overview of the decision, highlighting certain issues concerning parliamentary involvement in treaty withdrawal, and discuss some possibilities for persuading South Africa to retain its membership in the ICC.

The High Court Decision

The High Court was faced with a question similar to that decided by the UK Supreme Court in the recent Brexit decision – can the Executive withdraw from an international treaty, which had been ratified and domesticated by Parliament, without prior Parliamentary approval? The question is not directly addressed by the South African Constitution, which contains no explicit provision on treaty withdrawal, and had not yet received judicial attention. Like the UK Supreme Court, the South African High Court answered in the negative. It held that since section 231(2) of the South African Constitution requires Parliamentary approval for treaties subject to ratification, this section also by implication requires the consent of Parliament to withdraw from such treaties. Therefore, the notice of withdrawal was unconstitutional and invalid. Read the rest of this entry…

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‘Let them drown’: rescuing migrants at sea and the non-refoulement obligation as a case study of international law’s relationship to ‘crisis’: Part II

Published on February 27, 2017        Author: 

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

In the first half of this two-part post, I reviewed the argument to the effect that sea-rescues of migrants, allied to the extraterritorial application of the non-refoulement obligation in human rights law, incentivize dangerous smuggler-enabled journeys.  In this second half of the post, I will appraise the merits of this argument.

Why do People make Dangerous Crossings?

People only take dangerous routes because regular routes are closed off to them, through migration law-enabled non-entrée restrictions backed up by robust carrier sanctions in general, and an absence of will, on the part of many states who could potentially provide protection, to realize this potential through organized resettlement, in particular.

Some have argued—as I did in a presentation at the American Society of International Law Annual Meeting in 2016—that a key causal factor in creating the conditions for smuggler-enabled perilous sea crossings is the non-entrée measures of those states whom individuals wish to obtain protection from.

These measures—strict immigration controls, including border checks, visa restrictions and the posting of extraterritorial immigration officials—are  rooted in the general entitlement of states in international law to control their borders, and backed up specific legal regimes whereby states impose hefty fines on carriers such as airlines if the carriers transport individuals into their territories who do not have a right to enter there. (For a discussion of the ethics of this, see e.g. Linda Bosniak’s ‘Wrongs, Rights and Regularization’).

It is the existence of these legally-enabled arrangements that necessitate the dangerous and illegal journeys, involving smugglers, which place people in danger at sea (see also Itamar Mann and Umut Özsu here).  (For the argument that, because of this, in some cases the smuggling of refugees is justified, see this by Jim Hathaway.)  Here, then, we see how one area of international law can be seen as part of the cause of the ‘crisis’. Read the rest of this entry…

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Announcements: International Law Literature Forum; ASEAN Post-Doctoral Fellowships; New additions to the UN Audiovisual Library of International Law; ECHR-Conference: Principled Resistence Against ECtHR Judgments – A New Paradigm?; CfP Annual WTO Law Conference

Published on February 26, 2017        Author: 

1. International Law Literature Forum, Graduate Institute Geneva. The International Law Literature Forum at the Graduate Institute of International and Development Studies is a platform to discuss contemporary cutting-edge international law scholarship. It focuses on work in progress and seeks to stimulate an open discussion of new directions in scholarship in the Geneva research community. In the spring of 2017, it features papers by Kristina Daugirdas (University of Michigan, 8 March), Bhupinder S. Chimni (Jawharlal Nehru University, Delhi, 10 April), José Alvarez (New York University, 10 May) and Jochen von Bernstorff (University of Tübingen, 31 May). Information on the different sessions and topics can be found on our website.

2. ASEAN Post-Doctoral Fellowships at the NUS Centre for International Law. CIL invites applications for ASEAN Post-Doctoral Fellowship positions commencing in Academic Year 2017/2018. We welcome applications from those with expertise in international economic law or international trade law, comparative constitutional law, and law and transnational crime. For more details, you see here.

3. New additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Judge Iulia Motoc on “The Influence of the European Court of Human Rights on Human Rights Regimes in Central and Eastern Europe” and Professor Leila Nadya Sadat on “The Legacy of the Nuremberg Trials: Seventy Years Later”. Read the rest of this entry…

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Filed under: Announcements and Events
 

‘Let them drown’: Rescuing migrants at sea and the non-refoulement obligation as a case study of international law’s relationship to ‘crisis’: Part I

Published on February 25, 2017        Author: 

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

“Approaching crises with criticism reminds us that crises are produced: they are negotiable narratives that can mask as well as reveal, a recognition that should be central when we respond to crises of human rights within international law. Benjamin Authers and Hilary Charlesworth” (‘The Crisis and the Quotidian’, p. 38)

The situation of the movement of certain migrants to and within Europe since 2015 has been described as a ‘crisis’.  The ‘crisis’ designation has been used because of the numbers involved—commonly depicted as the largest movement of people in Europe since the Second World War—and the consequent challenge of how the role of European states in assisting such people should be determined in a fair and equitable manner, in the face of sharp inequities in how things played out in practice.   A typical response from international lawyers has been to implore states to implement fully their relevant legal obligations, including in international human rights law.  Such a position is reflected, for example, in the open letter, signed by over 900 international lawyers, coming out of the 2015 ESIL conference in Oslo [I should declare I was responsible, with Başak Çali, Cathryn Costello, and Guy Goodwin Gill, in drafting and organizing the signatures for this letter].At the same time, others have drawn the opposite conclusion about the law, suggesting that legal rules were more part of the problem than the solution.  For example, in 2015 Germany partly suspended the operation of the Schengen border-free rules of EU law, on the basis that, absent a co-ordinated and equitable European approach to the situation, the cross-border free movement such rules permitted was objectionable (see here and here).

These responses epitomize the dual way international law can be and is invoked in relation to crisis: as part of the solution and as part of the problem.  In two posts I would like to explore this duality by considering the migration ‘crisis’ and the debates around one particular policy prescription relating to it: the ‘rescue’ of migrants at peril at sea performed by states acting extraterritorially, in the context of the operation of the non-refoulement obligation in human rights law. Read the rest of this entry…

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The Curious Case of the Killing of Kim Jong-nam

Published on February 24, 2017        Author: 

The night is dark and full of terrors. But sometimes the terrors are just too damn funny. Consider the circumstances of the untimely demise of Kim Jong-nam, the elder half-brother of North Korean dictator Kim Jong-un, assassinated in Malaysia apparently at the orders of his imperial sibling.

  • He was not just poisoned (so very old-school), but was poisoned by VX, the most potent of all chemical warfare agents, which is 100 times more toxic than sarin; less than a drop on the skin can kill you. Being poisoned at the orders of your family is one thing; your family killing you with a weapon of mass destruction is another. (Remember, though, that time when Kim Jong-un had some officials executed by anti-aircraft guns. All around nice guy.)
  • The immediate executioners were two young women, one Vietnamese and one Indonesian; they claim to have been duped into doing this by North Korean agents and that they thought they were just pulling a prank on someone; Malaysian police reject this version of events.
  • The Vietnamese woman was a failed “Vietnam Idol” contestant in 2016; a panel of judges rejected her after she sang just one line: “I want to stop breathing gloriously so that the loving memory will not fade.” The Indonesian woman wore a t-shirt with an “LOL” sign while carrying out the assassination. ROFL.
  • The most likely method of delivering the VX was not the spray or liquid on the assassins’ hands, but a drop of the toxin on a cloth which was then touched against Kim’s skin.
  • The Malaysian special forces are guarding the morgue in which Kim Jong-nam’s body is being kept, after an attempted break-in, the purpose of which may have been to tamper in some way with the corpse.
  • North Korea refuses to accept that the person who was killed was Kim Jong-nam, while at the same time requesting the surrender of the body.
  • There is apparently such a thing as a North Korean Jurists Committee. And they made a real gem of a statement on the assassination which I commend to every, erm, jurist out there. Among other things, the statement claims that (1) Malaysia violated international law by carrying out an autopsy on a bearer of a DPRK diplomatic passport, who had ‘extraterritorial right according to the Vienna Convention;’ (2) that the autopsy was an ‘undisguised encroachment upon the sovereignty of the DPRK, a wanton human rights abuse and an act contrary to human ethics and morality’; and that (3) ‘DPRK will never allow any attempt to tarnish the image of the dignified power of independence and nuclear weapons state but make a thorough probe into the truth behind the case.’ So the violation of international law and human rights is not the person’s death but the investigation. Note also the oh-so-subtle reference to nuclear weapons. Creepy/scary, but still LMAO.

Both factually and legally Kim’s assassination resembles the 2006 killing by radioactive polonium of Alexander Litvinenko in London, ostensibly by Russian agents. This is in effect Litvinenko redux, except it additionally has that very special DPRK flavour of crazy. The legal issues are more or less the same. One possible violation of international law is the infringement on the sovereignty of the territorial state. Another is the violation of Kim’s right to life – the DPRK is in fact a party to the ICCPR (recall the denunciation issue some time ago), but Malaysia (and China) are not and cannot invoke the DPRK’s responsibility directly in that regard even if they wanted to, although they may rely on customary law. There’s also the issue of the ICCPR’s extraterritorial application to the killing of a person by a state agent; I have argued that such scenarios are covered by human rights treaties, assuming that there is proof of the DPRK’s involvement in the killing, which of course remains to be conclusively established.

 

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The Role of Human Rights Law in Constructing Migration Emergencies

Published on February 24, 2017        Author: 

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

Migration emergencies are ubiquitous in today’s world.  News media report daily on the situation of Syrian migrants crossing the Mediterranean in rubber dinghies, of Central American mothers and their children traversing inhospitable deserts to reach the southern U.S. border, or of controversial efforts to keep at bay Afghans and Iraqis aiming for Australian shores in overcrowded ships.  The story line often runs as follows: this dramatic and unforeseen increase in migration is a crisis that risks overwhelming the receiving nations’ ability to process and absorb these migrants.  Media analysts and politicians suggest multiple factors provoking these crises.  Some foreground the life-threatening dangers that migrants face on their journeys.  Many more stoke fears about the national security and cultural threats that mass influxes present to migrant-receiving nations.  But there is very little critical analysis of the underlying assumption that these migrant flows are unexpected and unpredictable.  Even less is said about the role of international law, and human rights law in particular, in constructing these emergencies.

Migration “emergencies” are, contrary to their moniker, foreseeable outcomes of the contemporary international legal framework.  Human rights law relating to migration provides the backbone of this problematic legal structure.  Mass influx movements of migrants are predictable reactions to violent conflict and structural violence as well as to low-wage labor needs in destination states.  In situations of violence, the flow of migrants often increases steadily, offering sufficient lead time for destination states to prepare for these flows, but is instead initially ignored and then transformed into a “crisis” that grabs the public eye. Read the rest of this entry…

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Introduction to ESIL Symposium on ‘International Human Rights Law in Times of Crisis’

Published on February 23, 2017        Author: 

The theme of the 2016 ESIL Annual Conference in Riga was ‘How International Law Works in Times of Crisis’. In line with our practice for the last two annual conferences, the ESIL Interest Group on International Human Rights Law applied the conference theme to International Human Rights Law (IHRL) by hosting an afternoon seminar on ‘The Place of International Human Rights Law in Times of Crisis’ with papers by Elif Askin, Gaëtan Cliquennois, Jaya Ramji-NogalesChristy Shucksmith, Charlotte Steinorth and Ralph Wilde.

In this blog symposium, the six authors examine the place of IHRL in four crises: austerity, disaster, the migration ‘crisis’; and weapons transfer in conflict. While apparently distinct, the blog posts point to challenges in neatly categorising and distinguishing between types of crisis, the ways in which forms of crisis can overlap and bleed into each other and the strategic use of crisis discourse. Indeed, a question raised by Ramji-Nogales is what is meant by ‘crisis’ in the first place. Along with Wilde, she argues that the migration ‘crisis’ should not be understood as a ‘crisis’ as that suggests that the situation was unpredictable and unexpected. Rather, she argues that it was foreseeable and that the language of crisis obscures that fact. While dangerous sea crossings in the Mediterranean have been on-going for some time, the framing of these crossings as a crisis only occurred in Autumn 2015 in Europe.

The posts raise fundamental questions about the positioning and relevance of IHRL in times of crisis. The authors position IHRL on a spectrum from absence or resistance to any role for IHRL in crisis; to a role in mitigating crisis; to becoming part of the problem. The posts further point to heightened interest in IHRL in times of crisis and the chance of development of IHRL as a result. In this introductory post, we explore some of these cross-cutting themes further.  Read the rest of this entry…

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ESIL Blog Symposium on ‘The Place of International Human Rights Law in Times of Crises’

Published on February 23, 2017        Author: 

Over the next week, we will be hosting a symposium on ‘The Place of International Human Rights Law in Times of Crisis’. The posts in this series arise out of a seminar held by the ESIL Interest Group on International Human Rights Law at the 2016 ESIL Annual Conference. In this blog symposium, six authors examine the place of IHRL in four crises: austerity, disaster, the migration ‘crisis’; and weapons transfer in conflict.

Later today, we will have an opening post by Lorna McGregor and Başak Çali. This will be followed by contributions from Jaya Ramji-Nogales and Ralph Wilde. On Tuesday, we will have a post by Christy Shucksmith followed by contributions from Elfin Askin and Charlotte Steinorth later in the week. The final post in the symposium will be by Gaëtan Cliquennois.

We thank all of those who have contributed to this fascinating symposium.

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Filed under: Conference, Human Rights
 

The ICJ’s Preliminary Objections Judgment in Somalia v. Kenya: Causing Ripples in Law of the Sea Dispute Settlement?

Published on February 22, 2017        Author: 

On 2 February 2017, the International Court of Justice handed down its Judgment on preliminary objections in the case concerning Maritime Delimitation in the Indian Ocean (Somalia v. Kenya). Somalia had brought the case to request that the Court determine its single maritime boundary with neighbouring Kenya. The ICJ held that it may proceed to the merits phase, thereby rejecting the respondent’s submissions. Among other arguments, Kenya raised an objection rooted in Part XV (“Settlement of disputes”) of the 1982 United Nations Convention on the Law of the Sea (LOSC). It contended that the Convention’s dispute settlement system is an agreement on the method of settlement for its maritime boundary dispute with Somalia and therefore falls within the scope of Kenya’s reservation to its optional clause declaration made pursuant to Art. 36(2) of the ICJ Statute, which excludes “[d]isputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement”.

The fact that Kenya relied on this argument is noteworthy in and of itself, as it was the first time that the Court faced a LOSC-based jurisdictional challenge. Moreover, we believe that the way in which the Court disposed of this argument has far-reaching implications since it casts a long shadow over dispute resolution in the law of the sea. But before delving into the ICJ’s reasoning and its ramifications, we will highlight some essentials of the LOSC dispute settlement system.   Read the rest of this entry…

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Comment on Paposhvili v Belgium and the Temporal Scope of Risk Assessment

Published on February 21, 2017        Author: 

On 13 December 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered a significant ruling in Paposhvili v Belgium, App. No. 41738/10, correcting the narrow approach to Article 3 medical removal cases taken in D v United Kingdom, App. No. 30240/96 (2 May 1997) and extended in cases such as N v United Kingdom, App. No. 26565/05 (27 May 2008). These cases established that a breach of Article 3 (sending an applicant to a real risk of torture or inhuman and degrading treatment) would only be found in the most exceptional circumstances, namely where there were compelling humanitarian considerations such as an applicant being critically ill and facing mental and physical suffering and hastened death upon removal. The Paposhvili judgment expands the application of Article 3 in medical cases and raises interesting issues about our broader understanding of prospective risk assessments in other types of subsidiary protection/complementary protection and refugee cases.

The applicant, a Georgian national facing removal due to criminal activity in Belgium, suffered from leukaemia and recurrent tuberculosis which had caused lung disease. He claimed that he would be unable to access adequate medical treatment in Georgia and was therefore at risk of ill-treatment and accelerated death if he were expelled. Indeed, medical evidence accepted by the Court indicated that he would die within 6 months of his treatment being discontinued ([195]).

Although Mr Paposhvili died while his Grand Chamber hearing was pending, the ECtHR examined his complaint due to its wider impact on cases involving aliens who are seriously ill and facing removal. The ECtHR “clarified” its jurisprudence in relation to that group of people, noting that the case law since N v United Kingdom had been impermissibly narrow and “deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of [Article 3]” ([181]–[182]). While maintaining the language of “exceptional cases” from D, the ECtHR expanded that category to encompass:

situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. ([183], emphasis added)

Dr Lourdes Peroni and Steve Peers have noted that the significance of this case is the ruling that access to “sufficient and appropriate” medical care must be available in reality, not merely in theory. The submissions of the Ghent University Human Rights Centre as intervening party provided the ECtHR with an excellent platform from which to set out procedural obligations and evidentiary factors to guide the assessment of risk. The ECtHR held at [190]–[191] that the “authorities must also consider the extent to which the individual in question will actually have access to this care and these facilities in the receiving State” and :

“where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned…the returning State must obtain individual and sufficient assurances from the receiving State…”. Read the rest of this entry…

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