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Kevin Heller’s Chevron Subpoena

Published on September 28, 2012        Author: 

Kevin tells the story here. Remarkably, the lawyers representing Chevron in its long-standing series of disputes with Ecuador issued a subpoena for information from Kevin’s Gmail account. Their only apparent reason for doing so was Kevin’s commentary on the case at Opinio Juris. Due to the ACLU’s intervention on Kevin’s behalf the subpoena request was dropped, but it is quite remarkable to see how the (overzealous?) lawyers for a party to a dispute used judicial process to such effect and did so without providing any justification, thus creating the impression that they did so in order to suppress academic commentary adverse to the interests of their client.

 
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More Than Trivial: Dissent as Design Element

Published on September 27, 2012        Author: 

Jeffrey L. Dunoff (left) is Professor of Law and Laura H. Carnell Chair at Temple University.

Mark A. Pollack (right) is Professor and Jean Monnet Chair  in the Department of Political Science at Temple University.

Kudos to Dapo for triggering an entertaining and informative set of posts (also here, here and here)about the use of dissents in international courts.   The exchanges on this topic unearthed many little-known practices and long-forgotten cases. More importantly, we believe, these posts raise a deeper set of questions about the causes and consequences of dissent that international lawyers have paid insufficient attention to.

One puzzle is why international courts show such great variation in the use of dissents; ECJ opinions never have dissents, ICJ opinions are regularly accompanied by dissents, and WTO dispute reports rarely have dissents – although this norm has been evolving in recent years.  The puzzle only deepens when we consider the rationales offered to explain these varied practices. Dissent at the ICJ is frequently justified on the grounds that it helps to preserve judicial independence.  In Judge Huber’s words, dissents serve as “a guarantee against any subconscious intrusion of political considerations, and the judgments were more likely to be given in accordance with the real force of the arguments submitted.”  Ironically, however, in the ECJ context, it is the absence of dissent that is thought to preserve judicial independence, as a single collegiate opinion is said to shield judges from national political pressures. How can it be that the presence and the absence of dissent both enhance judicial independence?

More fundamentally, what factors drive the decision by states to allow or prohibit dissents in the statutes of international courts, as well as the subsequent decisions by judges to issue dissents or refrain from doing so?  And, what consequences flow from international judicial dissents, for judicial independence, collegiality, and the development of law? Read the rest of this entry…

 
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Mutual legal assistance, Boston College, and tales from the Troubles

Published on September 27, 2012        Author: 

For those who teach international criminal law, the topic of mutual legal assistance typically receives only brief mention given the myriad of other topics vying for class attention, including extradition. However, an interesting case study is brewing in Boston, which raises broader issues for class discussion concerning accountability and the fight against impunity, post-conflict reconciliation, and how we “put history on record” as well as issues regarding how we who work within universities operate. For common law lawyers, it also provokes a dusting off of one’s knowledge of the old Wigmore categories for invoking privilege against disclosure.

The case of interest is that concerning Boston College, a private Jesuit university in Boston, Massachusetts, which we now know holds within its Burns Library certain transcripts and recordings of interviews conducted with former paramilitaries about their activities during the decades-long conflict in Northern Ireland known as the Troubles. Following a judgment of the United States Court of Appeals for the First Circuit, released on 6 July 2012, some of these records were scheduled for production this month, but it appears that appeals are being pursued.

The request for the disclosure of the interviews comes from the Police Service of Northern Ireland (PSNI) via a mutual legal assistance request made pursuant to the mutual legal assistance treaty (or “MLAT”) that exists between the United States and the United Kingdom that provides for cooperation in the investigation and prosecution of crime. The assistance that can be provided under the US-UK MLAT includes the provision of “documents, records and evidence.” The US-UK MLAT was signed in 1994 and entered into force in 1996, with modifications by the US-EU MLAT in 2003. And for those interested in the national application of international law, both MLATs are considered self-executing treaties under US law, and thus part of US law.

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The Innocence of Satirists: Will Caricatures of the Prophet Mohammad Change the ECHR Approach to Hate Speech?

Published on September 26, 2012        Author: 

Dr David Keane is Senior Lecturer in Law at Middlesex University.

The global reaction to the trailer for the film The Innocence of Muslims has prompted the banning of the video-sharing website Youtube in three States, Afghanistan, Bangladesh and Pakistan, with Council of Europe member Russia mooting such a move. Similarly the publication of the Charlie Hebdo cartoons of the Prophet Mohammad in France, and the resulting international protests, appear to reignite questions of religious defamation and freedom of expression generated by Jyllands-Posten in 2006. To a certain extent the arguments appear unchanged, but there are elements to these recent controversies worth exploring.

Charlie Hebdo has already been in the French courts, in 2007, but was acquitted, while the Danish Public Prosecutor decided not to pursue criminal proceedings against Jyllands-Posten. Yet the debate this time around seems less strident in terms of freedom of expression. The BBC points to a somewhat divided French press, albeit one that emphasises freedom of expression within the parameters of the law, with one paper asking whether these are “some cartoons too many”. This is significant given that newspapers of all political colours are the frontline on freedom of expression. Guy Birenbaum on the Huffington Post (only available in French) writes: “Come on Charlie, just between ourselves, you don’t have the feeling that this is old hat? Already seen, already read? Where is the subversion, the insolence, and most of all, the humour?” He concludes that mocking Islam has become something of a national sport in France and as a result has lost its subversive value. In this atmosphere, a prosecution appears a little more possible.

Such a prosecution would almost certainly be challenged before the European Court of Human Rights. Article 10 of the European Convention reads:  “1. Everyone has the right to freedom of expression… without interference by public authority … 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society… for the protection of the reputation or rights of others (…)”

In order to uphold the cartoonists’ rights under Article 10(1), the Court would have to go against its past jurisprudence and rule the interference unnecessary under Article 10(2). That would mark a new departure in terms of the European approach to hate speech, which has, perhaps understandably, been marked by the World War II experience and consistently upheld convictions for speech which attacks racial, ethnic or religious groups, or denies wartime atrocities.

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Nada v. Switzerland: The Continuing Problem of Attribution of Conduct Taken Pursuant to Security Council Resolutions.

Published on September 25, 2012        Author: 

Dr Arman Sarvarian, Lecturer in Law at the University of Surrey specialising in public international law particularly ethical standards for counsel appearing before international courts and tribunals.

Editors’ Note: This post was originally a comment on the post by Marko but we have decided to move it up

One of the many interesting issues raised by the recent judgment of the European Court of Human Rights in Nada v. Switzerland is attribution of responsibility (point 2 in Marko’s earlier post on this decision). I would like to offer a few tentative thoughts on the handling of attribution of responsibility by the Court. In my view, the judgment appears to have continued a muddled and inconsistent line of cases dealing with the attribution to Member States and/or international organisations concerning conduct pursuant to UN Security Council resolutions or other joint operations under the aegis of an international organisation such as NATO or the EU (e.g. – Bosphorus v. Ireland, Behrami and Saramati v. France and others, Beric v. Bosnia and Herzegovina, Al-Jedda v. United Kingdom, Al-Skeini v. United Kingdom, Bankovic v. Belgium and others).  Of course, the rules of attribution for international organisations remain nebulous and a delicate work in progress but the Court’s handling could be improved. I should emphasise that I am working on a draft conference paper on the potential consequences of EU accession to the ECHR for the law of international responsibility focusing on Common Foreign and Security Policy operations pursuant to UN Security Council resolutions, so my comments here are jejune and tentative.

The respondent argued that the application was inadmissible ratione personae and ratione materiae because the impugned measures had been based upon Security Council Resolutions 1267 (1999) et seq. which, per Articles 25 and 103 of the UN Charter, were binding and prevailed over any international agreement. This argument, and even more so that of France as intervener, used both ‘hierarchy of norms’ and ‘attribution’ language. On the one hand, obligations emanating from Security Council resolutions displace obligations arising under the Convention by virtue of Articles 25(2) and 103 of the Charter (cf. Lockerbie). On this approach, there could have been no infringement of Convention rights because those rights were displaced with respect to this applicant. On the other hand, the same obligations arising out of the resolutions rendered the alleged infringement of the applicant’s Convention rights attributable to the UN and thus, per the ‘Monetary Gold principle’, inadmissible ratione personae before the Court. This was the outcome of the much-criticised Behrami and Saramati decision.

The Court’s analysis (at paras 117-123) appears to skirt the problem of attribution. Read the rest of this entry…

 
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ICC Assembly of States Parties Urged to Decide on Status of Palestine.

Published on September 24, 2012        Author: 

In April of this year, the Prosecutor of the International Criminal Court indicated, in an official statement, that he was not competent to decide whether Palestine is a State such that it can accept the jurisdiction of the ICC under Article 12(3) of the ICC Statute. As a result, the ICC Prosecutor took the view that he could not take any action as a result of the declaration made by the Palestinian National Authority in January 2009, accepting the jurisdiction of the ICC over crimes committed on the territory of Palestine. In that statement, the Prosecutor decided that:

“competence  for  determining  the  term  “State”  within  the meaning of article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt,  will  defer  to  the  guidance  of  General Assembly. The  Assembly  of States Parties of the Rome Statute could also in due course decide to address the matter in accordance with article 112(2)(g) of the Statute.”

In an earlier post, I provided analysis of the Prosecutor’s statement and was critical of the Prosecutor’s view that it is the UN Secretary General that has initial competence with regard to all questions of Statehood under Art. 12 of the Rome Statute.

A group of eminent international law scholars have now written to the President of the Assembly of States Parties to the Rome Statute to urge her to place the question of the Statehood of Palestine, for the purposes of Art. 12(3) of the Rome Statute, on the agenda of the next meeting of the ASP. That meeting will be held in November this year. The letter is as follows:

Read the rest of this entry…

 
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Trivia: Cases Where Judge Votes Against National State or Appointing Party

Published on September 20, 2012        Author: 

In international tribunals it is often the case that a judge will vote in favour of a State that appoints that particular judge or that a judge will vote in favour of their State of nationality where that State is involved in a case before the tribunal. Sometimes, the suggestion is made that these facts show that judges have some sort of bias in favour of their national State or in favour of the State or party that appointed them. This suggestion of bias might well be an overstatement given that, at least in the case of the ICJ, many times the national judge or ad hoc judge, though voting in favour of their own State or the State that apointed them, is also voting with the majority.

The case of Velkhiyev v. Russia, a decision of the European Court of Human Rights (from July 2011), is a very interesting one with regard to the question of how judges vote in cases involving their national State. In that case, the Court found by six votes to one that Russia had NOT violated Art. 3 of the European Convention on Human Rights (prohibition of torture, inhuman or degrading treatment or punishment) with regard to 6 of the applicants in the case. The sole dissent on that question was Judge Anatoly Kovler the Russian judge! He would have found that Russia had violated that provision. So in this case, the judge voted against his State of nationality when the majority would have found in favour of that State. I suspect that this is very rare indeed. So my question today is:

Are there any cases when a judge in an international tribunal has voted against his or her national State or against the party that appointed him or her but where the majority of the tribunal would have found in favour of that State?

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The German Constitutional Court and the Euro-Crisis: The Emperor‘s New Clothes?

Published on September 20, 2012        Author: 

 Daniel Thym is Professor of Public, European and International Law at the University of Konstanz

Domestic German debates about the euro-crisis have had an unreal character so far. In the face of an economic crisis with global repercussions, the German public has been fascinated by the role of the Constitutional Court whom they admire. A vast majority of Germans trust that the country’s highest justices will steer the euro-debate through troubled waters with legal arguments. This confidence in the ability of Germany’s top constitutionalists, including several public law professors, was always bound to lead to disappointment.

It is true that the German Constitutional Court cannot be held responsible for the excessive media hype (or indeed opinion polls) about its role. However, it has to shoulder some responsibility. In recent years, the Court’s Second Senate had nourished the expectation that its interpretation of the principle of democracy was a lodestar for rescue operations. The debate reminded me of the fairy tale ‘The Emperor‘s New Clothes’. Those who aspire to ever more prestigious garments as a sign of power and wisdom risk being found to be naked at the end of the day. This applies to the German judicial ‘sovereign’ in the same vein as to the entourage who longed to gain from the prestige of their glorious ruler.

The Court’s latest judgment on the European Stability Mechanism (ESM) (also discussed by Michael Waibel here) and related instruments is an excellent demonstration why the desire for the pomp and circumstance of imperial times, remains an illusion (at least in Germany). The lesson is evident: the time has come to recalibrate the (legal) debate on euro rescue operations in Germany and beyond. Read the rest of this entry…

 
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Breaking News from 1932: Pirate Facilitators Must Be Physically Present on the High Seas

Published on September 19, 2012        Author: 

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project outside Denver, Colorado (though all of his views are his own). He has experience in United States piracy trials and just got on Twitter.

In the two years since the United States Justice Department began prosecuting Somalis for their alleged roles as pirate hostage negotiators, a debate has emerged as to whether UNCLOS requires facilitators of piracy to be physically present on the high seas in order to have committed piracy jure gentium and thus be subject to universal jurisdiction.

Highly reputable scholars and jurists have come out on different sides of this debate, due in large part to a lack of context surrounding UNCLOS art. 101, which provides the definition of piracy. Professor Douglas Guilfoyle takes the more expansive view that facilitation can take place within the jurisdiction of a state because UNCLOS art. 101(c), the section concerning facilitation, does not contain an explicit high seas limitation, as does art. 101(a)(1), which deals with the direct commission of piracy.

Advancing a narrower view, which I myself shared until recently, Professor Eugene Kontorovich argues that either an ex ante agreement to facilitate piracy ex post or concurrent facilitation while on the high seas is enough to commit piracy under the law of nations.

To an extent, this academic debate played out in practice when Judge Ellen Huevelle of the United States District Court for the District of Columbia held that a lack of high seas conduct kept an alleged pirate hostage negotiator outside the reach of universal jurisdiction. Although she was not presented with the question of whether an ex ante argument to facilitate subjected a facilitator to common jurisdiction, Judge Huevelle appears to side with the narrower conception of universal jurisdiction over pirate facilitators.

Because of the absence of historical insight into the bounds of universal jurisdiction over facilitators of piracy, most commentary to date has tended towards policy-heavy speculation based primarily on the text of UNCLOS itself. It appears, however, that the Harvard’s 1932 Draft Convention on Piracy has provided some much needed context for the debate.

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Who Can Apply to Add Sites Situated in Disputed territory to the World Heritage List?

Published on September 17, 2012        Author: 

Dr Shlomit Wallerstein is a CUF Lecturer in Law at the University of Oxford and Fellow of St Peter’s College, Oxford.

Recently (on 29 June 2012), the United Nations Educational, Scientific and Cultural Organization (UNESCO) accepted the Palestinian application  for the recognition of the Church of Nativity and the Pilgrimage Route as a world heritage site and included it in the World Heritage List. At the same time, it also added it to the list of ‘World Heritage Sites in Danger’. The site is described as located in Bethlehem. What is less known is that part of the pilgrimage route recognised as part of the site goes through East Jerusalem, which is currently under Israeli control. Israel opposed the recognition both with regards to the Church of Nativity, which is located in Bethlehem, and with regards to the pilgrimage route, which passes in part in an area under Israeli control and over which Israel claims sovereignty (a claim rejected by many in the international community). Leaving aside questions about the legitimacy of the recognition of Palestine as a state by UNESCO, the recognition of this site raises interesting questions about the relationship between the location of the site and the state that is applying tor recognition of the site as a world heritage site.

According to Art. 3 of the Convention Concerning the Protection of the World Cultural and Natural Heritage (hereafter: the Convention) it is the responsibility of each state to identify and delineate the different properties situated on its territory that should be recognised as either cultural or natural world heritage. Each State Party should then submit a tentative list of all these sites to UNESCO in accordance with Art. 11(1). UNESCO will only consider sites included in these lists.

But what happens where a site is found on a disputed territory? These cases create two potential scenarios. The first is that the state that claims sovereignty over the territory and which has effective control over that territory would apply to add the site on the World Heritage List. Assuming for the sake of this argument that Palestine is a state, its application concerning the Church of Nativity is a situation of this type as the site is found in Bethlehem, which is under the control of the Palestinians. The second scenario involves applications made by any state who has a claim on the territory on which the site is found but which does not have effective control over it. The Palestinian application to include the pilgrimage route, which is found (in part) in East Jerusalem (assuming for these purposes that this is a disputed territory), is an example of this second type scenario. Read the rest of this entry…