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The ‘left-to-die boat’: whose responsibility for the death of 63 migrants in the Mediterranean?

Published on March 31, 2012        Author: 

 Francesco Messineo is lecturer at Kent Law School, Canterbury.

Given the relative lack of media hype (with notable exceptions, see also here), readers may have missed the Council of Europe Parliamentary Assembly’s scathing report on the ‘left-to-die boat’ in the Mediterranean. On 27 March 2011, during the UN-authorized NATO military operations in Libya (see UNSCR 1973(2011)), a dinghy with 72 migrants (some of whom children) was making its way from Tripoli to Lampedusa when it run into difficulties for lack of fuel and food/water supplies. The ‘captain’ of the dinghy contacted a priest in Italy who swiftly alerted the Guardia Costiera (Coast Guard). The Italian authorities informed NATO of the coordinates of the ship in distress and sent repeated ‘ship in distress’ messages to all nearby vessels via satellite. An unidentified helicopter offered water and biscuits to the migrants and an unidentified warship passed very close nearby. Fishermen vessels also passed nearby. Spanish and Italian military vessels were apparently within easy reach. Yet no one rescued the migrants – and 63 of them died before the dinghy was brought by currents back to a city in Libya, after two weeks from their departure.

The United Nations estimates that at least 1,500 migrants died at sea in 2011 alone, but something is particularly harrowing about this case. The Italian government, the Spanish government, NATO (which had established a ‘maritime surveillance area’) and other countries knew the location of the dinghy, knew what the situation was, but omitted to intervene and effectively left 63 people to die of hunger and thirst in a portion of sea otherwise crowded with military and other ships (some of which precisely in charge of protecting the Libyan civilian population).

Among the many maritime borders and delimitations in the Mediterranean sea, one of the most important ones is the Search And Rescue (SAR) areas established under the International Maritime Search and Rescue Convention (1405 UNTS 118, as amended). Although this incident took place in the Libyan SAR, the Italian government, which had first received information about the distress, was probably under an obligation to coordinate a rescue operation. In fact, the Italian government today acknowledged its responsibility for the events. Minister Riccardi said that the government ‘accepts responsibility for this’, adding that these facts had ‘touched [him] very much’ and that they must provoke a rethinking of migration policies. The legal consequences of this acceptance of responsibility are important: Italy should now immediately proceed to compensate the survivors and the families of the victims for the suffering caused by Italy’s breach of its international obligations. Although commendable, ministerial apologies are certainly not enough. Read the rest of this entry…

 

EJIL Vol. 23, Issue 1: In this Issue

Published on March 31, 2012        Author: 

We open this issue with a challenging article by Armin von Bogdandy and Ingo Venzke on the quest for democratic legitimacy of international adjudication in an age of both globalization and fragmentation. If this article sets the theoretical scene, the following two contributions give flesh and bones to such a concern and its challenges by looking, albeit in different ways, at the intertwinement between the international and the national realms. On the one hand, Marlies Glasius addresses the legitimacy gap that might exist between an international court and the realities of a national situation by studying the particular case of international criminal justice. Should international criminal courts be democratically accountable to populations affected by crimes in order to be legitimate? On the other hand, Carlos Espósito and Carrillo-Santarelli analyse the legitimatory function that national judges can exert in relation to international law. How can judicial actors situated at the national level operate as protectors of global legal goods? Lastly, David Koller explores another facet of the situatedness of international law: its cartography as an historicized narrative which gives to international law a more or less explicit normative direction.

As part of our occasional series, Critical Review of International Jurisprudence, we publish three pieces that shed light on some important recent developments. In the first piece, Marko Milanovic, a new Member of our Scientific Advisory Board, critically examines the reasoning behind the 2011 judgments of the European Court of Human Rights in Al Skeini v. United Kingdom and Al-Jedda v. United Kingdom, as well as their broad policy implications regarding ECHR member state action abroad and their implementation of various Security Council measures. In the second piece, Matthew Parish studies a recent opinion of the European Court of Justice, striking down a proposed European and Community Patents Court; he stresses and questions the importance of the ECJ’s self-perception as the final arbiter of EU law in its ruling. In the third piece, Agnieszka Szpak reviews the jurisprudence of the ad hoc International Criminal Tribunals in regard to the definition of a national, ethnical, racial or religious group as protected groups against genocide. Read the rest of this entry…

Filed under: Editorials, EJIL, Journals
 
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Cambridge Journal of International Law Conference: “Agents of Change: The Individual as a Participant in the Legal Process”

Published on March 30, 2012        Author: 

The Cambridge Journal of International and Comparative Law  will be holding a conference - “Agents of Change: The Individual as a Participant in the Legal Process” – on 19 and 20 May 2012. The keynote addresses at the conference will be delivered by  Judge Antonio Augusto Cancado Trindade (on which see recent commentary here and here on this blog) and Professor James Crawford SC. Other highlights include a welcome address by Sir Elihu Lauterpacht CBE QC and a special talk by Professor Philippe Sands QC.

In addition, the Journal will be launching its first two issues at the conference and every delegate will receive a complimentary copy. For a full programme of events and to register, visit the journal’s website.

Filed under: Conference, EJIL Reports
 

Canada’s Alien Tort Statute

Published on March 29, 2012        Author: 

Professor René Provost, Faculty of Law and Centre for Human Rights and Legal Pluralism, McGill University

A few days ago, Canada moved to follow the Alien Tort Statute model found in the United States and open the door to file suits in damages against foreign states and others linked to acts of terrorism. The new law provides for both a basis of jurisdiction of Canadian courts and removes the immunity of foreign states in certain circumstances (see also Joanna Harrington’s post).

Bill C-10, an Omnibus criminal law statute, was adopted by the Canadian Parliament last week. The bill generated intense political debate and media attention, but largely for another section which imposed mandatory minimum sentences for a series of criminal acts. The scope of the Bill is well illustrated by its full title: “An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts”. One of the nine distinct sections of the bill which attracted considerably less attention in the mainstream media – and indeed in Parliament itself – is the Justice for Victims of Terrorism Act The law brings Canada into the very small group of states in which it is possible to use domestic courts to seek redress for violations of international law. It is noteworthy that the Act is limited to responsibility for acts of terrorism, and does not cover other violations of international law such as torture and war crimes, despite some earlier calls for a wider ambit.

The first part of the Justice for Victims of Terrorism Act creates a cause of action in Canada for damage or loss which occurred anywhere in relation to a terrorist act, if certain conditions are met. If the plaintiff is a Canadian citizen or permanent resident, no further territorial link is required. The Act opens the door to a suit in damages even for plaintiffs who do not have a nationality or residency link to Canada if there is a “real and substantial connection” to the country. This refers to the standard adopted by the Supreme Court of Canada in Libman v. The Queen, [1985] 2 SCR 178 to establish a territorial basis for criminal prosecution, which was later relied upon in other areas as well. The connection demanded in order to satisfy the “real and substantial” test has been interpreted quite broadly, to include not only any phase of the crime but also its repercussions. As such, the door which is opened by the Act is overall quite broad. Read the rest of this entry…

 

If not torture, then how about terrorism – Canada amends its State Immunity Act

Published on March 28, 2012        Author: 

Most of our immunity-related discussions in recent weeks have focused (naturally) on the recent ICJ decision in Jurisdictional Immunities of the State (Germany v. Italy, with Greece intervening). But there are new developments at the domestic level worth noting, including the passage this month of amendments to Canada’s State Immunity Act to allow victims of terrorism to sue the perpetrators in a Canadian court, including foreign states listed by the Government of Canada as supporters of terrorism.

As in many other states, Canada has embraced a restrictive rather than absolutist approach to the question of foreign state immunity from the jurisdiction of a state’s domestic courts. The legislative scheme adopted some thirty years ago in Canada embraces the concept of foreign state immunity from domestic court jurisdiction, but also provides for certain specified exceptions. For example, the commercial activity exception, which provides that: “A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any commercial activity of the foreign state.” See section 5 of the above-referenced Act, and the definition of “commercial activity” in section 2.

But these exceptions to immunity are few in number and they do not address the question of jus cogens breaches committed by foreign states. Within Canada, this situation has led to efforts to expand the current list of statutory exceptions so as to permit an individual to sue a foreign state for torture in a Canadian court, with the unsuccessful case of Bouzari v. Islamic Republic of Iran being the notable example, and one which resulted in criticism of Canada before the Committee against Torture (CAT). Read the rest of this entry…

 

The Naked Rambler

Published on March 26, 2012        Author: 

A few days ago the Guardian published a remarkable story on Stephen Gough, a former royal marine, who has since 2006 been incarcerated in various UK prisons, mainly in Scotland. He is generally kept segregated from the prison population, for the past two years in effect being in something closely approximating solitary confinement. Gough’s crime? Not terrorism or anything else of the sort. He just doesn’t want to wear clothes in public – at least not in Scotland:

On 18 May 2006, a fully-clothed Gough boarded a 6.45am flight from Southampton. After the pilot announced the descent into Edinburgh, Gough visited the toilet and emerged naked. “I knew I wanted to go to court naked and I suddenly thought, why not now? The flight attendant asked if I’d put my clothes back on. I said politely that I wouldn’t and she went away. Nothing happened until we landed and the police came on.”

Gough was arrested. His solicitor at the time, John Good, describes a court hearing not far short of slapstick. It emerged that after Gough returned naked from the toilet, the male passenger sitting next to him reacted by falling asleep. The arresting officer’s only issue in removing Gough from the plane was the delighted reaction of a hen party. For Gough, however, his midair strip meant a four-month sentence. He has been in prison ever since.

Gough isn’t mad. “They do evaluations all the time.” He smiles. “I’m on top of my game mentally. I’ve got clarity. If I feel down, then I’m straight on the case, trying to work out why.”

He emerged from more than two years of segregation with faultless psychological examinations. “If you or I spent two years in segregation,” Good says, “we’d probably show signs of trauma. It just shows how focused he’s become. He’s immune to his surroundings.”

Gough agrees: “I live at a deep level.” Yet he admits to experiencing doubts about his stance. “Yeah, of course. I wake up in the morning and think, what the fuck am I doing here? But what I’m doing isn’t about me. I’m challenging society and it must be challenged because it’s wrong.”

In Scotland, breach of the peace is partly defined as “conduct which does, or could, cause the lieges [public] to be placed in a state of fear, alarm or annoyance”. The prosecution has very rarely managed to rustle up witnesses to claim Gough’s nakedness has had any of these effects on them. What is keeping him in prison is simply the theoretical idea that it could.

“I do not believe that an ordinary, reasonable person would feel any of those things if they saw me [naked] in the street,” Gough says. He believes that to achieve his stated aim – to leave HMP Perth and return to Eastleigh naked – “the law doesn’t have to change, just the interpretation”.

Twice Scottish sheriffs found in Gough’s favour that no crime had been committed, both in him being naked in public and being naked in court. “Both times the sheriffs were elderly females,” notes Good, who represented Gough for more than three years (they parted company in 2010 so Gough could represent himself, making it harder for him to be excluded from the courtroom for being naked). “Stephen then chose to leave court naked and was arrested for being naked in public.”

Initially, Gough was a legal novelty in Scotland and support came from surprising quarters. In 2008, Edinburgh-based solicitor Joe MacPherson prosecuted Gough, a position with which he says he was uncomfortable. “I looked at the case and thought a man walking down a public street would not cause the requisite fear and alarm to an ordinary person. It would be odd, or amusing perhaps, but nothing more. The judge said his hands were tied. Seeing a man’s penis was felt to be enough to cause fear and alarm.”

Eventually Gough’s case was heard at Scotland’s appeal court, where it was found that breach of the peace should indeed be interpreted to criminalise his behaviour. Since then Scottish sheriffs have fallen in line; his sentences have steadily increased to the maximum and, should he keep refusing to dress, he will be caught in an endless cycle of two-year sentences. He insists if he were allowed to return home naked to Eastleigh, he’d cease being naked in public “when I don’t have to do it any more”.

Read the rest of this entry…

 

Call for Proposals – Collective Redress in the Cross-Border Context

Published on March 26, 2012        Author: 

Large-scale international legal injuries are becoming increasingly prevalent in today’s globalized economy, whether they arise in the context of consumer, commercial, contract, tort or securities law, and countries are struggling to find appropriate means of providing collective redress, particularly in the cross-border context.  The Hague Institute for the Internationalisation of Law (HiiL), along with the Netherlands Institute for Advanced Study in the Humanities and Social Sciences (NIAS), will be responding to this new and developing challenge by convening a two-day event on the theme “Collective Redress in the Cross-Border Context:  Arbitration, Litigation, Settlement and Beyond.”  The event includes two different elements – a workshop on 21-22 June 2012 comprised of invited speakers from all over the world as well as a works-in-progress conference on 20-21 June 2012 designed to allow practitioners and scholars who are interested in the area of collective redress to discuss their work and ideas in the company of other experts in the field.  Both events are organized by the Henry G. Schermers Fellow for 2012, Professor S.I. Strong of the University of Missouri School of Law.

Persons interested in being considered as presenters for the works-in-progress conference should submit an abstract of no more than 500 words to Professor S.I. Strong at strongsi {at} missouri(.)edu on or before 1 May 2012.  Decisions regarding accepted proposals will be made in early May, and those whose proposals are accepted for the works-in-progress conference will need to submit a draft paper by 4 June 2012 for discussion at the conference.  All works-in-progress submissions should explore one or more of the various means of resolving collective injuries, including class and collective arbitration, mass arbitration and mass claims processes, class and collective litigation, and large-scale settlement and mediation, preferably in a cross-border context.  Junior scholars in particular are encouraged to submit proposals for consideration.

Persons presenting at the works-in-progress conference will have to bear their own costs, since there is no funding available to assist with travel and other expenses.  The works-in-progress conference will be held on 20 and 21 June 2012 at NIAS, Meijboomlaan 1, 2242 PR Wassenaar, The Netherlands.  Wassenaar is approximately 20 minutes from The Hague by car.  The workshop of invited speakers will be held on 21 and 22 June, also at NIAS. Both the Schermers workshop and the works-in-progress conference are open to the public, although advance registration is required.  More information on both events is available at the HiiL website (www.hiil.org) or from Professor Strong at strongsi {at} missouri(.)edu.

Contact:  Prof. S.I. Strong at strongsi {at} missouri(.)edu

Deadline for proposals:  1 May 2012

For more on the Henry G. Schermers Fellowship at HiiL/NIAS, see:  http://www.hiil.org/organ-bios/prof-s-i-strong

Filed under: Conference, EJIL Reports
 
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From the North Sea to the Bay of Bengal: Maritime Delimitation at the International Tribunal for the Law of the Sea

Published on March 23, 2012        Author: 

Last week, the International Tribunal for the Law of the Sea delivered its judgment in the Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar). Although Bangladesh and Myanmar started negotiations for the delimitation of their maritime boundaries since 1974, when Bangladesh became independent from Pakistan, the boundary had still to be settled by 2009, when Bangladesh initiated the proceedings. The dispute was fuelled in 2008 when, following the discovery by Indian and Myanmar of gas deposits, Myanmar authorised exploration in the contested area. Bangladesh replied by sending its warships in the disputed area. Luckily, conflict was avoided following intense negotiations between the parties and the dispute has now been solved peacefully by having recourse to the dispute settlement provisions (Part XV) of the United Nations Convention on the Law of the Sea (UNCLOS).

The decision established the boundary of the territorial sea, exclusive economic zone and continental shelf [including the area of continental shelf beyond 200 nautical miles (nm) from the baselines], between the two States in the Bay of Bengal. It also addresses navigation in the territorial waters of Bangladesh by vessels of Myanmar and discusses the rights and duties of the parties in the area where the continental shelf of Bangladesh beyond 200 nm overlaps with the water column within 200 nm from the coast of Myanmar.

This case is the first to be decided between the two initiated by Bangladesh for the delimitation of its maritime boundaries with its neighbouring States, Myanmar and India. As Dapo has already reported, delimitation of the Bangladeshi-Indian boundary has been submitted to arbitration. It is to be expected that, following the decision on the boundary, Bangladesh and Myanmar will now start exploitation activities in the bay of Bengal.

For those familiar with maritime delimitation, a quick glance at the map of the region will bring immediately in mind the geography of the North Sea continental shelf cases, decided by the ICJ in 1969. There are indeed at least three similarities between the two cases. Read the rest of this entry…

 
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Judging Judges: A Reply to Marko Milanovic

Published on March 22, 2012        Author: 

Gentian Zyberi is a defence Lawyer at the International Criminal Tribunal for the former Yugoslavia

This is a reply to the post by Marko Milanovic entitled ‘Judging Judges: A Statistical Exercise’. His starting point is a paragraph by Andrea Bianchi’s post ‘On Certainty’ which speaks about certainty in international law, based on the ICJ’s decision in the Jurisdictional Immunities of the State case. As Bianchi notes in his post, the ICJ is always very considerate of the systemic effects of its own rulings. Indeed, it was highly unlikely that the Court would uphold the claim that international law allows individuals to seek redress against a State before the municipal courts of another State for human rights violations. Especially as regards humanitarian law violations committed during the Second World War. Admittedly, as Bianchi adds, this would have opened the door to a flow of litigation before municipal courts that might have disrupted the whole system. However, as Bianchi observes, the problem is that the Court overdid it, by making sweeping statements on the scope of immunities under customary law, by downplaying the right of access to justice under international law and by adding remarks that may have serious repercussions on other related fields. Similar criticism has been leveled at the other immunity decision of the Court rendered in the Arrest Warrant case in 2002.

But the paragraph in Bianchi’s post which triggered Milanovic’s post is the following:

Finally, a word of praise for Judge Cançado Trinidade (who issued a dissenting opinion in this case) is in order. His lengthy opinions and his weltanschauung are often looked down on or frowned at. In fact, Judge Cançado is long engaged in an attempt to acculturate the international judicial bodies in which he seats and, more generally, the epistemic community of international lawyers. Suffice to cast a glance to the background, academic and/or judicial record of his fellow judges to realize how on certain fundamental issues at the ICJ he does not even belong to a minority: he is almost completely isolated. I trust he has realized by now that The Hague is a much colder place than San José. Yet his function remains fundamental. One could paraphrase Voltaire and say that ‘If Cançado did not exist, it would be necessary to invent him’. Not so much for me or for any other more or less established member of the profession, but for all those students who approach the study of international law and want to believe in the redeeming force of human rights and universal justice for a better world. Here is another hand. Of this, I am quite certain.

Taking this a starting point Milanovic tries to answer the more general question: how exactly should we measure the effectiveness of a judge, particularly a judge on the ICJ? He provides statistics on the three-year work of Judge Cançado Trinidade. The criteria Milanovic chooses to measure effectiveness include an inquiry on what is the audience that the judge should seek to persuade and in what manner, a judge’s output in terms of individual opinions, and whether the judge is in the majority or not. From the tenor of his arguments it would seem that for Milanovic an effective international judge (at the ICJ) is one that looks inwards, refrains from writing long individual opinions because that is useless besides being costly, and is a conformist when in the minority! Read the rest of this entry…

 

Colleagues Wanted: Oxford Advertises Two International Law Positions

Published on March 21, 2012        Author: 

The Oxford University Faculty of Law has recently advertised two Faculty positions in international law. The first of those positions is the Chichele Professorship of Public International Law which will fall vacant at the end of the current academic year, as a result of the retirement of Professor Vaughan Lowe. The second position is a University Lecturership in Public International Law which falls vacant as a result of the departure of Professor Stefan Talmon to Bonn University. As is the case with all permanent Faculty positions at Oxford, each of these positions is associated with a Fellowship at an Oxford college. The Chichele Professorship is associated with a professorial fellowship at All Souls College and the University Lecturership is associated with a fellowship at St Anne’s College.

The Chichele Professorship of Public International Law is one of the most prestigious positions in international law around the world. The previous four holders, before Vaughan Lowe are: James Brierly, Sir Humphrey Waldock, D.P. O’Connell and Sir Ian Brownlie. It is the oldest chair in public international law at an English University, and arguably the oldest in the English speaking world. It was established in 1858, nine years before the Whewell Professorship of  International Law in Cambridge.  Read the rest of this entry…

Filed under: EJIL Analysis