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More on Nada v. Switzerland

Published on December 23, 2010        Author: 

As our readers are aware, currently pending before the Grand Chamber of the European Court of Human Rights is the fascinating case of Nada v. Switzerland.  It concerns an Italian national resident in the Italian enclave of Campione in Switzerland, who was placed at Switzerland’s request on a terrorist suspect list by the UNSCR 1267 Committee, and subjected to targeted sanctions. Among these sanctions is a travel ban that Switzerland implemented through its domestic legal mechanisms. Accordingly, the applicant was denied permission to transit through Switzerland from Campione, thus rendering him unable to move even to other parts of Italy, let alone anywhere else, essentially confining him to the (rather posh and casino-filled) 1.6 square km of Campione. Mr Nada complains that the Swiss travel ban violates his rights under Arts. 5 (liberty of person) and 8 (private life) of the ECHR.

As Dapo explained in his earlier post, this is one in a series of recent cases dealing with the impact of the UNSC terrorist sanctions regime on human rights, such as OMPI, Kadi I and Kadi II before EU courts (see Antonios’s recent post) or Sayadi before the Human Rights Committee, implicating the supremacy clause in Art. 103 of the UN Charter, pursuant to which UN member states’ obligations under the Charter (including UNSC resolutions) prevail over conflicting obligations under other international agreements. Also currently pending before the ECtHR Grand Chamber is the Al-Jedda case, directly dealing with the interaction between the ECHR and Art. 103 of the Charter, with the UK House of Lords previously explicitly holding that the Security Council can override the Art. 5 ECHR ban on preventive detention.

Nada, like Al-Jedda, presents a situation of apparent norm conflict. On the one hand, the UNSC commands Switzerland not to allow Mr Nada to travel; on the other, the ECHR (arguably) commands Switzerland to let Mr Nada through. In my article ‘Norm Conflict in International Law: Whither Human Rights?,’ (2009) 20 Duke Journal of Comparative & International Law 69 I examine several different approaches for avoiding or resolving such norm conflicts. In effect, when addressing the apparent norm conflict in Nada the European Court will have before it a menu of several different options, and we will see which one it chooses. I would now like to outline some of these options – though of the course the Court might come up with something completely new.

The first impulse in practically all cases of apparent norm conflict is to avoid the conflict through (harmonious) interpretation, usually by reading down the content of one of the conflicting norms so that the danger of conflict is no longer real. That reading down can be consistent with the text and object and purpose of a particular norm, or can range down from the more creative interpretative approaches up to the quite forcible limitation of the particular norm. Generally speaking, the more forcible the interpretation, the more it looks like legislation and the less legitimate a route for a court to take. In our specific example of Mr Nada, the Court could read down either the ECHR or the relevant UNSC resolutions. If avoidance is impossible, the conflict may (but also might not) be resolved through the application of a hierarchical or hierarchy-like rule. Some conflicts may be both unavoidable and unresolvable.

(Warning! long post).

Read the rest of this entry…

 

ICC Assembly of States Parties Discusses Possible Amendments to ICC Statute.

Published on December 18, 2010        Author: 

Last week the Assembly of States Parties (ASP) to the ICC held its Ninth Session in New York. One of the issues on the agenda of the 9th ASP was discussion of amendments to the ICC Statute. Some States had proposed amendments just prior to the Kampala Review Conference which did not make it on to the agenda at Kampala. Consideration of those amendments had been deferred until the 9th ASP where they were to be discussed by a Working Group on Amendments. One of the amendments was pushed by the African Union and proposed that Article 16 of the ICC Statute be amended to allow the General Assembly, in addition to the Security Council, to defer proceedings before the ICC. [Recently, I co-authored a paper (with Charles Jalloh and Max du Plessis on this AU proposal) which was discussed here and here.]  There was not enough time to discuss the substance of the proposed amendments at last week’s ASP and much of the discussion in the Working Group on Amendments  focussed on the process by which the Working Group would consider the amendments. The Working Group decided that it would hold inter-sessional meetings to carry out further discussions of the amendments.

Although the Article 16 amendment was first proposed in a meeting of African States parties to the Rome Statute, held in Nov. 2009, it was never quite clear how much support the proposal actually had among African States. It was therefore going to be interesting to see whether African States would continue to push for the amendment. Apparently, African States were not particularly vocal at the meeting. My co-author Charles Jalloh reports on his blog that

To begin with, for all the noise that the AU and some African States had been making about the proposal to amend Article 16 of the Rome Statute, none had come into that meeting prepared to raise the proposal. The South African delegation was present but was pretty silent, considering that it was the previous mover of the African proposal at the Eight ASP in The Hague.  In fact, throughout the first day of open ended discussions regarding the amendments, only one African State (South Africa) took the floor to weigh in on procedural matters – despite the apparent presence of a large contingent of delegates from the region at the Ninth ASP.

Charles suggests a number of possible reasons for this silence by African States, the first of which is that the

the silence may be a function of a lack of agreement by individual states with the position espoused by the political leadership of the African Union (AU) based in Addis. It may be that some African countries simply do not wish to join the anti-ICC bandwagon, especially when it comes to Bashir and the Sudan situation where, after all, thousands upon thousands of black Africans have been killed by state-sponsored militia supported, or at least, condoned by Khartoum.

This explanation would seem to be consistent with the position taken by African States with regard to the Bashir indictment. There seems to be heated discussions in Addis with strongly worded resolutions but then not much follow up on this apparently heated feeling elsewhere. This was precisely what happened with regard to the AU’s call for the Security Council to defer the Bashir proceedings. There does not appear to have been much follow up on this in New York by African States, despite the fact that there are always three African States on the Council.

 
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EJIL: Talk! Turns Two

Published on December 15, 2010        Author: 

A couple of days ago EJIL: Talk! celebrated its second birthday. With more than three hundred posts and an ever increasing readership, we hope that the blog continues to grow in the new year. We also wish to express our thanks to our contributors and commentators, and to extend our warmest wishes to all of our readers for the upcoming holidays.

Filed under: EJIL, EJIL Reports
 
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The High Representative for Bosnia and Herzegovina: A Requiem for Legality

Published on December 14, 2010        Author: 

Dr Miroslav Baros is Senior Lecturer in Law at Sheffield Hallam University, UK.

 Introduction

 ‘The Order further confirms that any proceeding instituted before any Court… which challenges [my] decisions sanctioning individuals …enacted by  me,  will be inadmissible, unless… I expressly give my prior consent.

The Decision of the Court does not affect [my] decisions… and individuals who have been banned from public life by such decisions.

Moreover, any step taken by any institution or authority… to establish any domestic mechanism to review… my decisions will be considered an attempt to undermine… me.

This Order comes into immediate effect’…

The reader has three attempts within 30 minutes to identify the author of this statement.  To help eliminate the most likely candidates I will clarify that it is neither an assertion of authority and unlimited powers by Tolkien’s malevolent and Dark Lord Sauron, nor is it Judge Dredd’s famous statement through Sylvester Stallone: ‘I am the Law’. Sorry, the time is up; it is Bosnia’s High Representative of the International Community and his Order Concerning Implementation of Constitutional Court Decision AP-953/05 of 23/03/07.

In the view of the author of the present article recourse to the world of fantasy and entertainment (for which the author most sincerely apologises if it caused annoyance) was necessary because it was, as the offered assistance to the reader suggests, an arduous task to find an appropriate comparison in the real world of international relations. It was actually relatively recently suggested that the style and powers of the High Representative resemble those of Lord William Bentinck who became governor-general of India in 1828,[1] but with the advantage of hindsight it can safely be argued that the High Representative has, by far beaten Lord Bentinck and therefore a comparison with the world of fantasy may be the closest one. Knaus and Martin, bewildered by the extent of powers and a tendency to abuse them by the High Representative drew a further comparison with the office of the dictator in the ancient Roman republic during emergencies situations, but the authors correctly concluded that even in those situations the dictator was a constitutional officer appointed temporarily by the Senate and who would be declared an outlaw if he refused to stand down after the period for which he had been appointed.

In spite of those rather dramatic comparisons and colourful descriptions a promenade of successive High Representatives continued to the present day. Cleverly wound up by a journalist in 2002 the then High Representatives excitingly admitted: ‘What we have [in Bosnia] is near-imperialism’. The High Representative also said that his job incorporated ‘Gilbert and Sullivan title and powers that should make a liberal blush’ – though as the journalist wryly noted, ‘he wasn’t blushing’.  Confusingly, on 27 February 2007 the Peace Implementation Council decided to end the High Representative’s mandate on 30 June 2008 (see here), but this was never implemented.

Writing in the Guardian in 2007 David Chandler noticed: ‘twelve years after the Bosnian conflict was apparently resolved with the Dayton agreement, the international high representative still runs Bosnia as if it was a feudal fiefdom. He has the power to impose legislation and dismiss elected politicians without any right of appeal.’

For the sake of a systematic and orderly presentation of the phenomenon the functioning of the High Representative in Bosnia and Herzegovina can be described as and categorised into two major groups of violations: violations of international law and violations of the parties’ democratic entitlements. In normal circumstances each one of the mentioned categories would in itself suffice for taking an urgent remedial action of some kind to prevent further abuse but not so in the present case. Read the rest of this entry…

Filed under: Armed Conflict, EJIL Analysis
 

Proposed Amendments to UK’s Universal Jurisdiction Laws

Published on December 10, 2010        Author: 

Some months ago we noted that the UK’s coalition government was planning to introduce legislation that would restrict the application of universal jurisdiction in the UK. The government was not proposing to restrict the scope of jurisdiction of UK courts over universal jurisdiction offences but to restrict the right of private persons to secure arrest warrants in respect of such offences. This was a matter of concern to some foreign governments most notably Israel after attempts to arrest a number of Israeli officials in the UK. As Ruvi Ziegler notes in a comment to my earlier post, the government has now put those proposals in the Police Reform and Social Responsibility Bill published last week. Read the rest of this entry…

Filed under: EJIL Analysis, Jurisdiction
 
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Once upon a time there was a gap …

Published on December 8, 2010        Author: 

Dr Roger O’Keefe is Deputy Director, Lauterpacht Centre; University Senior Lecturer in Law, University of Cambridge and Fellow & College Lecturer in Law, Magdalene College, Cambridge. The post below is a talk (referred to by Marko in his earlier post) given at the European Society of International Law Annual Meeting held in Cambridge in September 2010.

Once upon a time/Es war einmal/Il y avait une fois/C’era una volta, way back at the end of the Cold War, the Comptroller-General for the Complete System was performing his quarterly ‘stress test’ on the normative integrity of the international legal system when he detected a gap.  At first he did not believe it.  He had been taught, and throughout his professional life had encountered nothing which caused him to doubt, that such a thing was impossible.  The combination of the Lotus principle and the residual negative always provided an answer in extremis.  But the gap he was dealing with here was not that sort of gap.  Nor was it, as most supposed gaps are, merely a question of international law the answer to which is not to the interlocutor’s liking.  Here was a real gap, and an existential gap at that.  The Comptroller-General for the Complete System was perplexed.  I need some help with this, he thought.

Within a week, news of the gap was the subject of fevered speculation across the globe in faculties of law, ministries of foreign affairs, intergovernmental and non-governmental organisations and the boardrooms of multinational corporations.  From the ends of the earth, international lawyers—academics and practitioners, positivists and naturalists, doctrinal exegetes and critical theorists—gathered to discuss the unnerving development.

The first to offer an opinion were the legal advisors to the US Department of State and the multinational corporations—respectively, one should add, although it was sometimes hard to tell the difference.  To them the source and nature of the gap was obvious: it was the hole left in the international legal order by the conceptual bankruptcy of statism, a space rich in possibilities which individual and market freedoms were expanding to fill.  Having no need to hear the opinions of others, and time being money, these legal advisors then went back, perhaps not quite respectively, to drafting bilateral investment treaties.  The parole passed from the legal advisers to the various European governments, who characterised the gap as the hole left in the international legal order by the welcome collapse of anti-liberal humanist tyranny, a space rich in possibilities for the construction of a new Europe.  A spontaneous chorus of Beethoven’s Ninth rang out from Lon- … well, Paris to Berlin.  (In Warsaw, Prague and Budapest they were too busy buying colour TVs, while in Sofia, Minsk and Kiev they were standing around waiting for Beethoven’s rehabilitation.)

Next to speak were the theorists.  Some of these read the gap as the silhouette of the Other.  A few of the women present, whom everyone had ignored until now, discerned in the shape of the gap an unmistakable phallus.  Queer theorists cheekily took to calling the gap the ‘glory hole’.  For his part, a kindly English gentleman, who, people whispered scarcely credibly, had worked for many years for the Foreign Office, divined in the gap the first breach in Vattelian international law opened up by a new self-constituting society of all societies.  A bespectacled, boyish Finn thought the gap looked kitsch. Read the rest of this entry…

Filed under: EJIL, EJIL Analysis
 

Roger O’Keefe at ESIL

Published on December 6, 2010        Author: 

As a fitting follow-up to Frederic and Alexandra’s fabulous fable on the rise and fall of Eunomia, readers might be interested in Roger O’Keefe extraordinary performance at ESIL in Cambridge this September. To much hilarity among the audience, Roger spun a tale about gaps in the law that featured a stellar cast, including a bespectacled and boyish Finnish professor, a mercurial French ILC rapporteur, and EJIL’s own Joseph Weiler, who reminded everyone, as the ‘Talmud long ago taught us’, ‘that even contradictory conclusions can both be the living word of God’.

Roger’s speech – which is not only extremely funny but has something truly useful to say – is now available on the Cambridge conference website (h/t to the new blawg written by Nottingham PhD students). As good as the speech itself was, it was Roger’s delivery that made it truly great. Easily one of the most entertaining (not to mention non-soporific) academic performances that I’ve ever seen; regrettably, no Youtube clip survives. Too bad if you weren’t there, but please do read the speech itself!

Filed under: Conference, EJIL Reports
 

The Rise and Fall of Eunomia – Episode 3: Fin de fête

This is the third episode of a series of posts on “The Rise and Fall of Eunomia”. Episodes 1  and 2 of this series can be found at here and here.

The Sky is the Limit

In the aftermath of this landmark decision, Eunomian lawyers, flush with victory, vouched that more ambitious cases would be in the making. Eunomia had begun proceedings against the state of South Gacaca. South Gacaca had just emerged from a decade of turmoil during which a brutal regime of Apartheid was set up. Following a UN supervised transition, the first constituent assembly of South Gacaca adopted a complex scheme to restore ‘peace, justice and the rule of law.’ The scheme involved a Truth and Reconciliation Commission. By all accounts, it had lead to painful confessions, and had clarified the fate of thousands of disappeared persons. However, some of those who had committed crimes subsequently suggested that they had merely ‘gone along’ with the Commission to avoid what they considered to be a ‘foregone conclusion’ if they had gone to trial.

Eunomia had been contacted by a group of victims of the South Gacacan regime who felt they were being shortchanged by the whole scheme, and who had launched a coalition under the slogan, ‘We don’t want truth, we want justice!’ Armed with that popular mandate, Eunomia argued before the ICJ that in proclaiming an amnesty, the South Gacacan state sought to extinguish an interest in prosecutions that was not entirely its to extinguish. In his blog, the head of Eunomia’s Ministry for Global Transitional Justice was quoted as saying

if crimes against humanity are really crimes against humanity, then we must understand that it is the conscience of mankind that is shocked by them. We sympathize with some of the reasons that have been advanced by South Gacaca to push ahead with the Truth and Reconciliation process, but we also believe that international law mandates some prosecutions of at least those principally responsible for the atrocities committed in the last decade. We would not be faithful to our ideals if we did not press this case. Eunomia will stand by the side of the victims of South Gacaca.

 An even more ambitious case for Eunomia’s legal team was in the works that would have involved Eunomia suing all of the world’s major polluters at once for their contribution to global warming, and what was hailed as an erga omnes obligation not to contribute to the destruction of all living ecosystems. Eunomian lawyers knew this was a long shot but they felt that if worse came to worse it would at least attract attention to the urgency of the problem. A London barrister and professor of international environmental law had been hired to work on the case, and was said to be confident that the ICJ would recognize an actio popularis to defend against irreversible global damage to the environment. After the disappearance of the Seychelles two years earlier, some judges were said to be eager to adopt a landmark decision revolutionizing the old Trail-Smelter precedent in an age of “Global Commons” (although the less generously inclined suggested that the judges were mostly worried about the Peace Palace being flooded by rising waters threatening the Dutch coast). A case challenging ‘global economic inequality’ was also in the making. Eunomia was said to be preparing to invoke a range of treaties on economic cooperation and soft law on the right to development in support of this ‘mega-case.’ The argument was that many states that would have stood to benefit from litigating under-development failed to do so out of fear that they would be ostracized by the donor community. Read the rest of this entry…