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Third Time Lucky? The Dynamics of the Internationalisation of Domestic Courts, the Turkish Constitutional Court and Women’s Right to Identity in International Law

Published on January 29, 2014        Author: 

On 19 December 2013 the Turkish Constitutional Court delivered what some local journalists are calling a ‘revolutionary’ judgment. The revolutionary judgment in question recognised that women indeed have the right to retain, if they so wish, their last name when they get married. Of course, in the grand scheme of women’s rights, this is far from ‘revolutionary’. It is also not trivial.  A woman’s right to choose her name is the tip of the iceberg in her struggle to stand as an equal in family relationships. What it does is challenge the deep and entrenched patriarchal stereotype of the family as a unit joined under a single name – the man’s. It also emphasises the importance of name for women’s self-development – whether married or single.

The substantive advancement of women’s rights by this decision aside, the judgment also tells us a tale of the reception of international law by domestic courts. In particular, it offers us clues for comparatively studying how high courts negotiate the tension between progressive international legal commitments and, frankly, backward domestic laws tacitly backed up by the domestic legislature and executive.  This is the third time (yes, indeed) that Turkey’s Constitutional Court dealt with this case – each time with identical facts (a woman asking to keep her name upon marriage) – and the second time it has done so since the European Court of Human Rights delivered a violation judgment against Turkey on the very same issue.  In the first two instances, in 1998 and 2011, the Turkish Constitutional Court decided that the Civil Code which requires a woman to change her name upon marriage was not unconstitutional. In the third case, it did find it unconstitutional.

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Filed under: EJIL Analysis, Human Rights
 

The Right to Regulate for Public Morals Upheld (Somewhat): The WTO Panel Report in EC-Seal Products

Published on January 27, 2014        Author: 

Whitecoat Seal PupThere have been few interpretations of Article XX(a) of the General Agreement on Tariffs and Trade (GATT 1994) – the  specific exception that justifies what would ordinarily be a State’s GATT-inconsistent measure, unless such measure is deemed “necessary to protect public morals”.  As with any of the ten enumerated exceptions under Article XX of GATT 1994, a State invoking GATT Article XX(a) must first meet the requirements of the specific exception (e.g. demonstrating that the challenged measure is indeed “necessary to protect public morals”), and thereafter show that the challenged measure also complies with the overall requirements of ‘good faith’ (Brazil – Measures Affecting Imports of Retreaded Tyres, Appellate Body Report of 3 December 2007, at para. 215) as contained in the chapeau to Article XX (e.g. demonstrating that the challenged measure is not being applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade).  The 25 November 2013 Panel Report in European Communities – Measures Prohibiting the Importation and Marketing of Seal Products [hereafter, “EC-Seal Products“] issued the very first decision upholding a State’s right to regulate for public morals as an exception under Article XX(a) of GATT 1994, in relation to ongoing trade arising from seal hunting (pictured above left,) and seal products.

It may be recalled that the 2009 Panel Report in China- Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products [hereafter, “China – Publications and Audiovisual Products“] was the first occasion for a WTO panel to directly interpret the scope and meaning of measures “necessary to protect public morals” under GATT Article XX(a). China had invoked the “public morals” exception in GATT Article XX(a) to justify a set of measures that regulated the entry of foreign publications, audiovisuals and other media forms.  China argued that its regulations were designed to protect public morals in China by reviewing the content of foreign cultural goods and forms of expression that could potentially collide with significant values in Chinese society.  The China – Publications and Audiovisual Products Panel had little trouble accepting the interpretation of “public morals” (China-Publications and Audiovisual Products, para. 7.759) already laid down in the 2004 Panel Report in United States- Measures Affecting the Cross-Border Supply of Gambling and Betting Services [hereafter, “US-Gambling“], which had defined “public morals” in Article XIV of the General Agreement on Trade in Services (GATS), as “standards of right and wrong conduct maintained by or on behalf of a community or nation” (US – Gambling, para. 6.465).  However, the Panel ultimately rejected China’s assertion of GATT Article XX(a) exception (China-Publications and Audiovisual Products, para. 7.911), finding that China had failed to show the “necessity” of its challenged measures for the supposed purpose of protecting public morals.  The Appellate Body upheld these findings in its December 2009 Report.

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Announcements: David Held at Sciences Po; iCourts Conference & Summer School; Cagliari Conference Accountability of International Organizations; ASIL Event on Careers in International Organizations

Published on January 25, 2014        Author: 

1) Prof. Olivier de Frouville, University Panthéon-Assas, member of the French University Institute organizes a conference and a master class with David HELDProfessor of Politics and International Relations at Durham University, Master of University College Durham. The event will take place on 21 March 2014, from 9 h 30 to 17 h 30, in the CERI-Sciences Po Paris Conference Room, 56, rue Jacob, Paris 6ème. Applications for the master class can be sent until 14 February 2014 at olivier.de-frouville {at} u-paris2(.)fr . The applications will include: (1)  a curriculum vitae, clearly indicating the topic of the research and the works already published (if any) or in the course of being published. (2)  A one page letter of motivation. The list of successful applicants will be communicated at the latest on the 28th of February 2014. Further information available here.

2) The Center of Excellence for International Courts, (iCourts) Faculty of Law, Unviversity of Copenhagen is pleased to announce its conference on International Courts and Domestic Politics. The conference will be held a Copenhagen University on September 11th-12th. For this conference, we invite both political science, sociology and law papers. Please submit your paper proposal to: Zuzanna.Godzimirska {at} jur.ku(.)dk or Kristoffer.shaldemose {at} gmail(.)com by first of March 2014 at the latest.

The Centre of Excellence for International Courts (iCourts) and PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order is also hosting a high-level summer school for PhD students and junior scholars working on international law and with a special interest in interdisciplinary studies of international law and its social and political context. For more information, see here

3) Conference on “Conceptualizing Accountability in International Economic Law” – The University of Cagliari, Department of Law welcomes submissions that describe cutting-edge research in the following focus areas: Accountability and Law of International Banks; Accountability and WTO Law; Accountability and International Environmental and Energy Law; Accountability and Investment Law; Accountability and Law-makers. Interested participants should provide an abstract of up to 500 words by the 31th of March, 2014 to federico.esu {at} gmail(.)com. Outstanding papers will be selected for publication. More information is available here .

4) ASIL New Professionals Interest Group event on Careers in International Organizations: Wednesday, January 29, 5:30pm-7:30pm; Washington, DC and *livestreamed*

“Working at an international organization offers unique insight into how international law is made through the convergence of national interests, personal dynamics, global realities, and constantly evolving norms.  But how does a lawyer enter these labyrinths?  What is it like to work in them?  How do you get the assignments that advance your career once inside?  And where do you go from there?   Panelists at this event sponsored by ASIL’s New Professionals Interest Group will share the perspectives they have gained from the United Nations, the World Bank, the Organization of American States, and other international organizations, answering these questions and ones posed by the audience. Panelists include: Simone Schwartz-Delgado (Office of the United Nations High Commissioner for Refugees); Grace Menck (Inter-American Development Bank); Heidi Jimenez (Pan-American Health Organization); Steve Koh, ASIL (former attorney at the International Criminal Tribunal for the Former Yugoslavia and International Criminal Court) Please register/get more info here 

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The Self-Fragmentation of the ICTY Appeals Chamber

Published on January 23, 2014        Author: 

Today the ICTY Appeals Chamber (thankfully) affirmed the convictions of high-ranking Serbian leaders for crimes in Kosovo in Sainovic et al, even though it somewhat reduced the sentences. The judg(e)ment is gigantic, especially for an appeals decision, at 800 pages+, and obviously I haven’t read it. But buried in all that is one very important development in the whole ‘specific direction’ saga – by 4 votes to 1, the Chamber decided that the Appeals Chamber in Perisic was wrong in holding that specific direction was an essential element of the actus reus of aiding and abetting liability. The Chamber discussed the issue extensively at more than 20 pages, starting at p. 643, and here are the choice concluding paragraphs:

1649. Based on the foregoing, the Appeals Chamber, Judge Tuzmukhamedov dissenting, comes to the compelling conclusion that “specific direction” is not an element of aiding and abetting liability under customary international law. Rather, as correctly stated in the Furundzija Trial Judgement and confirmed by the Blaskic Appeal Judgement, under customary international law, the actus reus of aiding and abetting “consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.” The required mens rea is “the knowledge that these acts assist the commission of the offense”. The Appeals Chamber reaffirms the position taken by the Blaskic Appeal Judgement in this regard.

1650. Accordingly, the Appeals Chamber confirms that the Mrksic and Sljivancanin and Lukic and Lukic Appeal Judgements stated the prevailing law in holding that “‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting”, accurately reflecting customary international law and the legal standard that has been constantly and consistently applied in determining aiding and abetting liability. Consequently, the Appeals Chamber, Judge Tuzmukhamedov dissenting, unequivocally rejects the approach adopted in the Perisic Appeal Judgement as it is in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law in this regard.

In so holding, the Chamber did not rely just on the ICTY’s prior case law, but also on the recent Taylor judgment of the SCSL, which had also rejected specific direction. Note also how the Chamber did not mince words – it came to a ‘compelling conclusion’ to ‘unequivocally reject’ Perisic as wrongly decided. In his dissent, Judge Tuzmukhamedov is of the view that it is unnecessary on the facts of the case to get into the specific direction issue, and that Chamber should not have done so, especially in order to avoid a conflict with a prior decision of the Appeals Chamber. He however takes no position on the specific direction issue itself.

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The Public Law Approach in the Practice of Investment Treaty Arbitration

Published on January 22, 2014        Author: 

In my last post, I discussed how comparative public law methodology could inform the resolution of investor-State disputes and thus help to reform the system from within. This may sound like a view from the ivory tower. In this post I will first discuss why arbitrators have an incentive to make use of such a methodology and, second, point to existing cases in which tribunals have already adopted a comparative public law framework.

System-Internal Reform and Identity Change

The success of using comparative public law as a system-internal reform strategy depends on the extent to which those active in practice endorse it. Enculturating public law thinking will need an identity change among arbitrators, arbitral institutions, annulment committees, and disputing parties. But why should a change in thinking take place, if there is nobody who coerces arbitrators to incorporate public law thinking or parties to develop their submissions on the basis of comparative public law? Do arbitrators not even have an incentive to keep the system running in a way that it maximizes the benefits of investors as claimants, and in turn, the arbitrators’ own interest in being reappointed? This is what critics like Gus Van Harten argue. In his view,

the novel situation in which claims can be brought by only one class of parties, and only the other class can be found to have violated the treaty, provides investment treaty arbitrators (including those who are state-appointed) with an incentive to favour claimants in order to advance the interests of the industry and their position within it.

Appointment of Arbitrators as a Source of Change

My view is different. I think that the one-off nature of arbitration and the appointment mechanism for arbitrators have a great potential for bringing change to the system. Read the rest of this entry…

 
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Jones v UK: On analogies and inconsistencies in the application of immunity rules

Published on January 21, 2014        Author: 

Micaela Frulli is Associate Professor of Public International Law at the University of Florence, Italy.

As Philippa Webb and Lorna McGregor have already outlined in their EJIL Talk! Posts, the ECtHR in Jones and Others v the United Kingdom  seems to have based its reasoning on the assumption that State immunity always shields State officials from civil proceedings before a foreign court and, as a consequence, it did not take into consideration the existence of different kinds of immunities accruing to the State and to its officials. The acknowledgment of a complete correspondence between State immunity and the immunity of State officials – and the reconfirmation of Al-Adsani which however only concerned State immunity – is unfortunate precisely because it does not take into account the possible existence or  development of different and autonomous rules regulating the immunity of State officials and the immunity of the State itself, at the very least with reference to cases where international crimes were committed and which entail a dual responsibility, as Lorna has stressed. It is worth fleshing out a few considerations on analogies and inconsistencies in the application of immunity rules in this area.

It is generally agreed – albeit from very different theoretical perspectives – and supported by considerable case-law, that functional immunity cannot apply in cases where State officials have allegedly committed international crimes, neither before a domestic nor before an international criminal court. On the other hand, according to the prevailing opinion (upheld by the ICJ in the Jurisdictional Immunities Judgment), the State on whose behalf the accused official was acting enjoys immunity from the civil jurisdiction of foreign States for the very same crimes. There is an inherent contradiction in the current ‘state of the art’ concerning the application of immunity rules – as underlined by the Institut de Droit International in its Resolution adopted in September 2009. A State official may not invoke official capacity as a defence, justification or excuse in a criminal trial before a competent tribunal of a foreign State, whereas the State on which behalf he or she has acted – that could have tolerated, authorized or even organized the commission of the alleged crime – may call upon respect for its sovereignty not to be subject to civil proceedings before the courts of a foreign State. States always emphasize that domestic courts are not the appropriate forum for adjudicating State responsibility and that immunity from foreign jurisdiction does not absolve States from their responsibility. However, we have witnessed too many cases where no interstate forum was available nor there were alternative avenues for the victims. Read the rest of this entry…

 

Espionage & Good Faith in Treaty Negotiations: East Timor v Australia

Published on January 20, 2014        Author: 

In April last year, East Timor instituted arbitral proceedings against Australia at the Permanent Court of Arbitration (‘PCA’) in relation to a dispute arising under the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea (‘CMATS Treaty’). Timor Leste (as East Timor is formally known) alleges that the CMATS Treaty is invalid because Australia engaged in espionage in the course of negotiating the Treaty. As noted by Matthew Happold in an earlier EJIL:talk! post, Timor Leste has also initiated proceedings against Australia the International Court of Justice in respect of the seizure of documents by Australian authorities from the offices of the Australian lawyer who is acting for Timor Leste in the PCA arbitration. Indeed, the ICJ is holding hearings, this week, on Timor Leste’s request for provisional measures that will require Australia to give up to the custody of the Court all documents and data seized by Australia pending disposal of the ICJ case and to give assurances that ‘it will not intercept or cause or request the interception of communications between Timor-Leste and its legal advisers’.

The details of the arbitration before the PCA have not been made public, so it is difficult to form any clear assessment of the precise international law issues that arise.  However, from public statements and media reports, it seems that Timor Leste is alleging that the CMATS is invalid because “Australia did not conduct the CMATS negotiations in 2004 in good faith by engaging in espionage”.  According to the lawyer for Timor Leste, during the negotiations for the CMATS Treaty, Australian intelligence services inserted listening devices into the wall of Timor-Leste’s negotiating room under the guise of an Australian aid program concerning renovation and construction of cabinet offices. The lawyer for Timor-Leste has likened the behaviour of the Australian intelligence services to insider trading. The PCA case is particularly interesting as it might be the first case in which a state seeks invalidity of a treaty on the ground that the other treaty party acted fraudulently in the negotiation of the treaty. The case raises the question whether states not only have an obligation to negotiate treaties in good faith but whether breach of the obligation to negotiate in good faith amounts to a ground for invalidity of a treaty.

Before turning to the grounds for invalidity, it is first worth noting that one of the interesting aspects of these proceedings is that they were even commenced at all. Read the rest of this entry…

 

Announcements: E.MA, Jobs at HRLC, SLS Nottingham

Published on January 18, 2014        Author: 

1. The European Inter-University Centre for Human Rights and Democratisation (EIUC) is accepting applications for the 18th edition of the European Master’s Degree in Human Rights and Democratisation (E.MA). E.MA provides students with the opportunity to share knowledge and skills with leading scholars from 41 prestigious European Universities and renowned Human Rights experts, in the classroom and during a week-long field trip. Applications for the academic year 2014/2015 are processed on an on-going basis. The next deadline is 15 March 2014. Apply now.

2. The Human Rights Law Centre, University of Nottingham is looking for a:

Research Assistant

The successful candidate will join a small team of academics, consultants and support staff and assist in the planning and implementation of human rights projects, which include training courses, workshops, conferences and research projects (both in the UK and overseas), as well as the publication of several human rights journals and books. Full details: http://www.nottingham.ac.uk/jobs/currentvacancies/ref/SSC001314

Research Associate/Fellow

The successful candidate will join a small team involved in an international research and capacity building project that will develop national participation in the Rome System of Justice, by empowering national criminal justice actors and supporting them to overcome legal constraints in realising their obligations under the Rome Statute of the International Criminal Court. Full details: http://www.nottingham.ac.uk/jobs/currentvacancies/ref/SOC15231.

3. The Society of Legal Scholars is pleased to announce its second PhD Student Conference, to run alongside the Society’s Annual Conference (9th-12th September 2014). The PhD Conference will be held at the University of Nottingham on 8th-9th September 2014. Complementing the Society’s Annual Conference, the theme for this year’s PhD Conference is ‘Judging in the 21st Century’. We are inviting PhD students, from all disciplines of law (and justice) to submit papers that reflect a fresh engagement with the enterprise of judging. Details and call for papers here.

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Jones v. UK: A Disappointing End

Published on January 16, 2014        Author: 

Lorna McGregor is the Director of the Human Rights Centre and Reader in Law at the University of Essex.  She was previously the International Legal Adviser at REDRESS which acted as a third party intervener in the case.

In 2012, Professor Andrea Bianchi pronounced on EJIL Talk! that we finally had certainty on the relationship between state immunity and human rights with the issuance of the International Court of Justice’s decision in Germany v Italy (Greece Intervening)On the widest argument that jus cogens norms trump immunity, I agreed (‘State Immunity and Human Rights: Is there a Future after Germany v Italy’ 1 JICJ 2013).  The Italian and Greek courts had been the only national courts to entertain the proposition and no court was likely to do so again once the ICJ had resolutely rejected it.  However, I speculated that we did not have certainty yet on two issues:

1)      whether the provision of state immunity violates the right of access to a court where no alternative remedy exists; and

2)      whether foreign state officials enjoy subject-matter immunity in civil proceedings for alleged acts that attract individual responsibility under international law.

The European Court now appears to have firmly closed the door on these two points but in a way that is dissatisfying for the reasoning it employs to get there.

A Lack of Alternative Means to Resolve the Complaint

In Jones and Others v United Kingdom, my expectation was that the Court would resolve the confusion that started in Al-AdsaniIn that case, the Court rejected the Government’s argument that Article 6(1) did not apply to ‘matters outside the State’s jurisdiction’ and ‘as international law required an immunity in the present case, the facts fell outside the jurisdiction of the national courts and, consequently, Article 6’ (para 44).  However, in finding Article 6(1) to be engaged, it also failed to take up the Government’s submission that ‘[t]here were other, traditional means of redress for wrongs of this kind available to the applicant, namely diplomatic representations or an inter-State claim’ (para 50).

The decision was subsequently criticised by those who considered the international law on state immunity to preclude the engagement of Article 6(1).  It was also criticised by those who considered that if the Court was correct in its finding that Article 6(1) was engaged, then it had to analyse the impact of the restriction fully.  Read the rest of this entry…

 

Jones v UK: The re-integration of State and official immunity?

Published on January 14, 2014        Author: 

Philippa Webb is Lecturer in Public International Law at King’s College London. She is the co-author, with Lady Hazel Fox QC, of the third edition of The Law of State Immunity (OUP 2013).

As regards the immunity of the State, the 6-1 decision in Jones and Others v the United Kingdom to uphold the immunity of Saudi Arabia was to be expected: in the Jurisdictional Immunities Judgment, the principal judicial organ of the UN clearly stated that that there was no exception to State immunity for jus cogens violations. The Fourth Section of the ECtHR felt no need to examine national developments in detail as the ICJ Judgment must be considered as ‘authoritative as regards the content of customary international law’ (para 198).

The razor-thin majority of the Grand Chamber in Al-Adsani 13 years ago has now been buttressed by both the ICJ and the Fourth Section of the ECtHR.

But the decision in Jones to uphold the immunity of the State officials even in the face of allegations of torture is more surprising. It stretches the meaning of the ICJ Jurisdictional Immunities Judgment and goes against two emerging trends: (1) accountability of non-high ranking State officials for serious human rights violations; (2) the diversification of various forms of immunity. Let me take these issues in turn.

Accountability of State officials for torture

As the ECtHR Chamber acknowledges (para 92), the ICJ emphasised in the Jurisdictional Immunities Judgment that it was addressing ‘only the immunity of the State itself from the jurisdiction of the courts of other States; the question of whether and to what extent immunity might apply in criminal proceedings against an official of the State is not in issue in the present case’ (para 91 of the ICJ Judgment). Yet, the ECtHR followed the ICJ’s Judgment with respect to the immunity of State officials as well as that of the State. In its 2012 Judgment, the ICJ had been silent as to immunity of a State official from civil proceedings, but it was clear that the Judgment was focused on the State itself and arguably even limited to ‘acts committed on the territory of the forum State by the armed forces of a foreign State … in the course of conducting an armed conflict’ (para 65). Read the rest of this entry…