Julian Assange and the UN Working Group on Arbitrary Detention

Published on February 5, 2016        Author: 

We should have known. Once Julian Assange publically stated that he would surrender to the UK authorities if the United Nations Working Group on Arbitrary Detention found against him, it was obvious that the Working Group had done no such thing. And its opinion was released today, to widespread derision among the legal community (at least as expressed by my twitter feed).

To get the obvious issues out of the way: the Working Group is a UN body but it is not, and does not represent, ‘the United Nations’. Instead, it is one of the ‘thematic special procedures’ of the UN Human Rights Council, which is itself a political body established by and reporting to the UN General Assembly. The Working Group was originally established by the Commission on Human Rights, the Human Rights Council’s predecessor, and had its mandate renewed, most recently by the Human Rights Council in 2013. In contrast to the HRC, however, the Working Group is a body of independent experts serving in their individual capacities. It presently has five members: from South Korea, Mexico, Benin, Australia and the Ukraine.

The Working Group is tasked with investigating cases of deprivation of liberty imposed arbitrarily, with reference to the relevant international standards set forth in the Universal Declaration of Human Rights, as well as to the relevant international instruments accepted by the States concerned. It can consider individual communications and, having done so, render opinions as to whether an arbitrary detention has or has not been established and make recommendations to the State concerned.

What all this means is that the Working Group cannot issue binding decisions (contrary to what Julian Assange’s legal team are arguing), hence their description as ‘opinions’. Nor can it provide authoritative interpretations of any human rights treaty (having not been granted that role by the parties to any such treaty). The most that can be said is that States are under a duty to take ‘due consideration’ to Working Group’s recommendations, which is a rather weak obligation.

Moving from the general to the particular, the Working Group gave its opinion in response to a communication made on behalf of Julian Assange. It will be recalled that Mr Assange has been in the Ecuadorian embassy in London since 19 June 2012, when he skipped bail following the decision of the UK Supreme Court on 30 May 2012 to permit his extradition to Sweden under a European Arrest Warrant. The communication was made on 16 September 2014 and was passed on to the Governments of Sweden and the United Kingdom, which replied, respectively, on 3 and 13 November 2014. The opinion was adopted on 4 December 2015, over a year later, and was published on 5 February 2016, which does not indicate an enormous sense of urgency. Following the Working Group’s rules, one of the members of the Working Group recused herself from this deliberations as she shared the same nationality as Mr Assange. Another, Mr Vladimir Tochilovsky, dissented and produced a short individual dissenting opinion. Read the rest of this entry…

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ESIL-International Human Rights Law Symposium: International Criminal Law and International Human Rights Law

Published on February 5, 2016        Author: 

International criminal law and human rights might, at one level, seem to be antipathetic. Not least, because, at the domestic level, most international human rights lawyers tend (and very frequently rightly) to decry the excesses of domestic criminal justice systems both at the procedural and substantive level.

It might be thought, therefore, that it is a little ironic that many human rights NGOs speak in stern terms of the necessity of the prosecution of international criminals, whilst excoriating the treatment of defendants in domestic law. The claims of irony are misplaced. The issue that most NGOs on point are raising is the abuse of authority by the powerful, and the appropriate responses to it. Hence, domestically, their focus tends to be on the treatment of often vulnerable, defendants, whereas when it comes to international crimes, the focus tends to fall on ensuring the accountability of usually powerful, perpetrators. I see no fundamental inconsistency in this. Nonetheless, the relationship between international criminal law and human rights is not simple.

For the purposes of this post, I will pass aside certain issues, such as the relationship between human rights law and the procedure of international and internationalised criminal tribunals, and the extent to which human rights are lived up to at the post-conviction (or acquittal) stage of international proceedings. There are others who are far better placed than I to discuss those issues. Here I will reflect briefly on three things: first, the substantive coverage of international criminal law; second, the relationship of international criminal law and international human rights law; and third, the extent to which they ought to overlap. These thoughts are preliminary, and intended to provoke debate rather than pre-empt it, still less foreclose it.

For the first part I will take as read that what we mean by international crimes as being the ‘big four’: aggression, crimes against humanity, genocide, and war crimes. Second, I will consider human rights law as being reflected in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. There is more to be said about treaties at the liminal point between international human rights law and international criminal law, such as the Torture Convention, and the Convention on Enforced Disappearances, but here is not necessarily the place to engage in that debate. Third, I will look at the extent to which international criminal law and international human rights law jurisprudence (which is itself not a unified system of law) ought to influence one another. Read the rest of this entry…

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ESIL-International Human Rights Law Symposium: Interactions Between IHRL and Other Sub-branches of International Law – A Research Agenda

Published on February 4, 2016        Author: 

In our first post as co-chairs of the ESIL Interest Group on Human Rights, we suggested that human rights are central organising principles of public international law. We noted that:

International human rights law routinely interacts with other sub-branches of public international law by demanding new interpretations of existing law (cf. the principle of territorial application of treaties as regulated in the Vienna Convention on the Law of the Treaties); by qualifying existing obligations under other bodies of law (cf. international human rights law and the law of occupation); or imposing procedural and substantive obligations onto other bodies of law (cf. the ICC Statute).

In this symposium, we deepen our inquiry into the relationship of international human rights law (IHRL) with other sub-branches of public international law. We do so by examining in what ways and the extent to which IHRL has shaped and influenced the development of international criminal law, the law of armed conflict, international investment law, cultural heritage law and development. Looking at interactions between IHRL and a number of other sub-branches of public international law (PIL) demonstrates that there are both divergences and convergences in why and how far IHRL influences other bodies of PIL.

The contributions in this symposium indicate that all sub-branches under discussion interact with IHRL. There are, however, significant variations in how far they interact, the terms of interaction and the assessments of the consequences of such interaction. What explains such variation? Our contributors identify push and pull factors.

The purposive affinity between IHRL and other branches of PIL emerges as an important factor supporting IHRL’s influence on other branches. Lixinski on international cultural heritage law, Murray and Hampson on international humanitarian law, and Cryer on international criminal law, all point out that interactions with IHRL are strong because there are overlaps between what these bodies of law are seeking to achieve and IHRL. Van Ho’s post, on the other hand, points to the perceived lack of purposive affinity between IHRL and international investment law accounting for the limited interaction between the two sub-branches. Read the rest of this entry…

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ESIL-International Human Rights Law Symposium: Interactions Between IHRL and Other Sub-branches of International Law

Published on February 4, 2016        Author: 

We are happy to announce that over the course of this week and next we will be hosting an ESIL Interest Group on Human Rights blog symposium on the interactions between international human rights law (IHRL) and other sub-branches of international law. This follows the previous ESIL-IHRL Online Symposium – Is There General International Human Rights Law?

The discussion will start with an introduction by Başak Çali and Lorna McGregor, co-chairs of the ESIL Interest Group on Human Rights. The symposium will go on to consider the relationship between IHRL and other areas of public international law. Lucas Lixinski will analyse the interaction between IHRL and international cultural heritage law, whilst  Francoise Hampson and Daragh Murray will review its relationship with international humanitarian law. Robert Cryer will consider the interaction with international criminal law, Tara Van Ho the relationship with international investment law accounting, and Siobhán McInerney-Lankford the interaction of IHRL and development regimes.

We are grateful to all of the contributors for participating in what we are sure will be a fascinating symposium.

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Filed under: EJIL Analysis, Human Rights

Austria and the Fight Against the “Islamic State”: Whither Neutrality?

Published on February 3, 2016        Author: 

The most recent escalation of the conflict in Syria and the Paris attacks have once again led to intense debates over the still unresolved question of self-defence against non-state actors, the role of UN Security Council resolution 2249 in this regard, and the EU’s mutual defence clause enshrined in Article 42(7) of the Treaty on European Union. While these issues are of particular importance for those states that recently joined the military efforts against the “Islamic State’s” safe haven in Syria , i.e. the UK or Germany, they also affect one of the most delicate topics in Austria: its permanent neutrality.

In September 2015 foreign minister Sebastian Kurz declared that Austria had joined the alliance against the “Islamic State”, albeit without any military consequences. After France invoked the EU’s mutual defence clause, however, Austrian Defence minister Gerald Klug – emphasizing that he was voicing his personal opinion – openly stated that “there cannot be neutrality against terrorism.” From this point of view, measures typically deemed as being incompatible with neutrality, particularly flight permits for military aircraft on their way to Syria, do not pose a problem. Upon closer inspection, however, things are less clear.

Austria’s status as a permanently neutral state is a product of the negotiations with its four occupying powers – the US, the UK, France, and the Soviet Union – following the Second World War. According to Article I of the “Federal Constitutional Law on the Neutrality of Austria”, Austria “is resolved to maintain and defend its [permanent] neutrality with all the means at her disposal” and “will never in the future accede to any military alliances nor permit the establishment of military bases of foreign States on her territory.” Back in 1955, Austria notified all 63 states it entertained diplomatic relations with at that time of this law and asked for recognition of its status as a permanently neutral state. Hence, it is not only bound internally but also under international law to this very day (although it could, in the opinion of the Austrian Ministry for Foreign Affairs, unilaterally revoke this status regardless of whether other states take note or agree). Read the rest of this entry…

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Pre-Trial Chamber of the International Criminal Court Authorizes Initiation of Investigation in Georgia

Published on February 1, 2016        Author: 

On 27 January 2016, the ICC Pre-Trial Chamber I (PTC) authorized the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) to open an investigation into the situation in Georgia, specifically focusing on allegations of war crimes and crimes against humanity during and in the immediate aftermath of the August 2008 armed conflict. In the absence of a state party or the Security Council referral, the OTP filed the request for authorization in October 2015, seven years after initiating its preliminary examination. The investigation can cover alleged crimes by three groups: South Ossetian forces, armed forces of Georgia and armed forces of the Russian Federation. Georgia is a party to the Rome Statute, while the Russian Federation is not.

This post focuses only on the aspects of the PTC decision and the OTP’s request that raise the most questions, namely selection of crimes and of potential cases and admissibility of those cases, with specific emphasis on complementarity.

Crimes within the Jurisdiction of the ICC

The primary targets for the OTP’s investigation appear to be alleged crimes against ethnic Georgians, including forcible displacement and destruction of property, between 8 August and 10 October 2008 in the Russian occupied South Ossetia and adjacent areas. Read the rest of this entry…

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Announcements: ECHR and the Crimes of the Past; Journal on the Use of Force and International Law RfS; Women in International Law Network; International Cultural Heritage Law Summer School; CfC for International Criminal Justice On/And Film Workshop; Conference on the Protection of Persons in Times of Disasters; Drones and International Law Event; Reforms of the Individual Complaint Mechanisms Conference

Published on January 31, 2016        Author: 

1. European Convention on Human Rights and the Crimes of the Past. A one-day conference entitled European Convention on Human Rights and the Crimes of the Past is organized jointly by the European Court of Human Rights and the European Society for International Law.  The programme includes presentations by judges from the European Court of Human Rights, as well as international law scholars.  The conference will take place on Friday 26 February 2016 at the premises of the Court in Strasbourg. Registration is now open (deadline: 19 February). In order to register, please send an email to ESIL-ECHR-Conf2016 {at} echr.coe(.)int.

2. Request for Submissions: Journal on the Use of Force and International Law. The Journal on the Use of Force and International Law (Routledge) is requesting submissions. The Journal attracts contributions both from scholars writing on the general nature of the law in the area of the jus ad bellum and those examining particular uses of force or developments in this field of law. The Journal invites submissions of unsolicited manuscripts for both articles (suggested word length between 8-25,000 words including footnotes) and book reviews (suggested word length between  3-4,000 words including footnotes).  All submissions will be double-blind peer reviewed and should comply with the Journal’s style guidelines. The deadline for submissions is 20 May 2016.  Articles and book reviews can be submitted online here.

3. Women in International Law Network: The Olive Schill Society. At a time where there are continuing efforts to promote the place of women working in international law, such as the recently launched global campaign for gender parity in international representation, the Manchester InternationaI Law Centre is proud to launch the Women in International Law Network: The Olive Schill Society (WILNET). Founded by female researchers of MILC, and dedicated to Miss Olive B. Schill (whose bequest to the University of Manchester funds public lectures in commemoration of her brother, Edward Melland Schill, who was killed in the First World War), this new platform aims to provide a professional community for women international lawyers at any stage of their career to discuss both their experiences in — and pathways into — the field. WILNET will be formally launched in Manchester on 1 February: see here for further information.  WILNET invites female international lawyers at any stage of their careers, including students, to join us in this initiative. If you are interested in becoming a member, please email us at wilnet {at} Place “Membership” in the subject title, and provide us with your name, affiliation, and a short bio. Read the rest of this entry…

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Filed under: Announcements and Events

Compliance Adjudication at the ICJ – The Alleged Violations Case

Published on January 26, 2016        Author: 

The ICJ should soon deliver judgments on Preliminary Objections in the two most recent Nicaragua v Colombia cases. Both cases are closely related to the 2012 Judgment in Territorial and Maritime Dispute (Nicaragua v Colombia). In one of them, Nicaragua repeats a pleading the Court rejected in the 2012 Judgment for procedural reasons – that the maritime delimitation take into account Nicaragua’s proposed extended Continental Platform. In the other, Alleged Violations of Sovereign Rights, Nicaragua requests the Court, first, to declare that Colombia has violated Nicaragua’s maritime sovereignty as established in the 2012 judgment; second, that Colombia ‘is bound to comply with the Judgment of 19 November 2012, wipe out the legal and material consequences of its internationally wrongful acts, and make full reparation for the harm caused by those acts’.

International Courts and Compliance Jurisdiction

Alleged Violations is the first attempt in half a century to directly bring to the ICJ a dispute concerning compliance with one of its judgments. This is less surprising once one finds out that, in the 1951 judgment in Haya de la Torre, the ICJ refused to provide meaningful guidance regarding the implementation of its 1950 Asylum judgment, on grounds that implementation of judgments must be based ‘only on considerations of practicability or political expediency’, and therefore is ‘not part of the Court’s judicial function’. Subsequent compliance cases (discussed below), other than the sui generis case of Nuclear Tests II, were ‘disguised’ as requests for interpretation, most clearly in Avena and Temple.

Alleged Violations therefore gives the Court the opportunity to re-assess its jurisprudence on the matter, and establish that questions regarding compliance with and implementation of judgments are legal questions, as justiciable as any other. Read the rest of this entry…

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Announcements: ANZSIL Call for Papers & Panel Proposals; ESIL Paper Series; Responsibility to Protect Workshop; UCL Journal Call for Submissions; University of Reading Postgraduate Programme; Protection of Human Rights & Environment Training

Published on January 23, 2016        Author: 

1. Call for Papers & Panel Proposals: 24th Annual Conference of the Australian and New Zealand Society of International Law. This ANZSIL conference will take place from 30 June 2016 to Saturday 2 July 2016 at University House, Australian National University, Canberra, Australia. The theme of the conference is International Law of the Everyday: Fieldwork, Friction & Fairness, and participants are invited to reflect on what comprises the everyday of international law and how international law shapes the everyday. The Conference Organising Committee invites paper submissions reflecting on these themes in any area of public and private international law. Also invited are proposals for panels comprised of three to four papers in circumstances where the presenters concerned are already in conversation, or would find it useful to be so assembled. Details of the submission process for proposals can be found in this flyer. Submissions must be sent by 26 February 2016.

2. ESIL Paper Series. The latest instalments in the European Society of International Law’s Paper Series have been published, featuring 8 papers from its 2015 Annual Conference and 7 papers from its 2015 Research Forum. The complete collection of papers from the ESIL Series is available here.

3. Lincoln Law School Responsibility to Protect Workshop. On 22 April 2016, Lincoln Law School will host the workshop ‘Evaluating the Impact of the Responsibility to Protect – 10 years on: An idea whose time has come and gone?’. This workshop will focus on the effectiveness and implementation of the Responsibility to Protect (RtoP), and brings together eminent scholars in the field and academics currently undertaking research into the implementation of RtoP. Key speakers include, Dr Aiden Hehir, University of Westminster; Professor James Pattison, University of Manchester; and Dr Justin Morris, University of Hull. We will also be joined by Dr Alexandra Bohm, University of Sheffield; Dr Sarah Sargeant, University of Buckingham; and Dr Stuart Wallace, University of Nottingham. Registration is available here and costs £15. The workshop will run between 10am and 6pm, lunch and refreshments will be provided. Contact Dr. Graham Melling (gmelling {at} or Dr. Christy Shucksmith (cshucksmith {at} for further information.

4. Call for Submissions: UCL Journal of Law and Jurisprudence. The UCL Journal of Law and Jurisprudence is a law journal run by postgraduate students of the UCL Faculty of Laws. The Journal appears twice a year and is available open access. The Editorial Board is pleased to call for submissions for the second issue of 2016. This will be our ‘City Issue’ and the Editorial Board welcomes submissions that engage with this general theme. The topic is broadly conceived and leaves scope for any area of law or jurisprudence (domestic, regional or international) that is deemed to be ‘City’ related, including, for example, banking and finance, regulation, capital markets, trusts, tax, IP, corporate or international economic law. Submissions could be theoretical, doctrinal or aimed at practice. The deadline for submissions is 30th April 2016. Manuscripts must be uploaded via the submissions section on our website. For further information and guidelines for authors please visit our website.

Read the rest of this entry…

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Filed under: Announcements and Events