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Why the ECHR Decided not to Revise its Judgment in the Ireland v. The United Kingdom Case

Published on April 5, 2018        Author: 

The European Court of Human Rights (“ECtHR”) recently rejected a request by Ireland to revise its judgment in the 1978 Ireland v. The United Kingdom case, where the Court found that the use by the then U.K. government of five techniques of interrogation on fourteen individuals amounted to “inhuman and degrading treatment” in breach of Article 3 of the European Convention on Human Rights (“ECHR”), but did not rise to the level of torture. In the recent revision request Ireland asked the ECtHR to revise the original judgment, based on evidence that has recently become available, and to find that the five techniques did amount to torture.

The Court rejected Ireland’s request, a decision that was met with disappointment by human rights advocates. Grainne Teggart, Amnesty International’s Northern Ireland campaigns manager remarked that this was “a very disappointing outcome, for the men and their families” and argued that the Court “missed a vital opportunity to put right a historic wrong.” Without taking away from the anguish of the fourteen individuals who suffered and continue to suffer as a result of being subjected to the harsh interrogations, it is necessary to understand the reasoning behind the Court’s decision and challenge the notion that it was a denial of justice.

A revision request is not an opportunity to fix the Court’s past mistakes or re-evaluate a case in light of more recent case-law. Rather, it is a technical process that allows the Court to revise a judgment only when new facts emerge which should have been made available to the Court at the time of the original judgment and which would have had a decisive influence on the Court. Should the Court agree to revise a case where any new fact or later case law would point to a different outcome, or where it finds the Court simply made a mistake, it would lead to complete chaos and uncertainty. In this case, the decision to deny the revision request was justified on the basis of maintaining legal certainty, a fundamental aspect of justice. Read the rest of this entry…

 

Reply to Dunoff and Pollack: ‘Experimenting with International Law’

Published on April 4, 2018        Author:  and

In the last issue of the European Journal of International Law we published an experimental study on the ability of international law students and experts to ignore information in the context of treaty interpretation. The same issue included a follow-up article by Jeffrey Dunoff and Mark Pollack. We find Dunoff and Pollack’s practical exercise of critically reading experimental studies important and helpful in moving the broader methodological and theoretical concerns into a concrete discussion of actual studies. In the following sections, we will try to contribute to this effort by reflecting on their assessment of our study.

The Study

Before delving into Dunoff and Pollack’s discussion of our paper, we would like to briefly summarize our study, which one of us also summarized in this EJIL:Live! interview. Our study was designed to empirically test a notion that has been mentioned in the treaty interpretation literature, which suggests that it is practically impossible to ignore the content of preparatory work after exposure, even when a rule prohibits the use of such material. This notion is supported by studies on the difficulty of ignoring information in other legal contexts, such as exposure to inadmissible evidence. To test this notion’s validity, we conducted three experiments that examined the ability of international law students and experts to ignore information about preparatory work while interpreting treaties. Our findings indicate that experts are better able than students to ignore preparatory work when they believe that the Vienna Convention on the Law of Treaties (VCLT) rules on treaty interpretation do not allow the use of such information. This suggests that there is something unique about international law expertise (or legal expertise in general) that enables the experts to resist the effect of exposure to such information. Read the rest of this entry…

 

Right of Access to a Court in Civil Claims for Torture Committed Abroad: The European Court Grand Chamber Decision in Naït-Liman

Published on April 3, 2018        Author: 

The Grand Chamber of the European Court of Human Rights has announced its judgment in the case of Naït-Liman v Switzerland, confirming that the refusal of the Swiss courts to examine a refugee’s civil claim for torture in Tunisia was not a violation of Article 6 § 1 of the European Convention on Human Rights. The decision addresses the concepts of forum of necessity and universal civil jurisdiction, and has important implications for civil claims arising out of wrongful acts that have taken place abroad.

Initial Proceedings

In April 1992, Tunisian national and political activist Abdennacer Naït-Liman was arrested in Italy and flown to Tunis, where he was handed over to members of the Tunisian authorities. Naït-Liman subsequently alleged that on the orders of the then Minister of the Interior, Abdallah Kallel, he was detained for 40 days and brutally tortured with bats, electric shocks, and suspension. He escaped Tunisia in 1993 and travelled to Switzerland with his wife and children, where he was granted refugee status in 1995 and Swiss nationality in 2007.

Naït-Liman learned on 14 February 2001 that Abdallah Kallel was in Switzerland receiving treatment at a hospital, and filed a criminal complaint against him. Kallel was, however, able to leave Switzerland before he was apprehended by the Swiss authorities. Read the rest of this entry…

 

Protean ‘National Security’ in Global Trade Wars, Investment Walls, and Regulatory Controls: Can ‘National Security’ Ever Be Unreviewable in International Economic Law?

Published on April 2, 2018        Author: 

National security seems to be the protean norm du jour in international economic law these days.  On 23 March 2018, the United States’ Trump Administration imposed a 25% tariff against around US$60 billion of imports from China, 15 days after the United States imposed tariffs on imports of steel and aluminum (25% on steel imports, and 10% on aluminum imports) from around the world.  US President Trump accused China of “economic aggression”, and is leaving the door open for negotiations with all States to force them to take measures to eliminate the United States’ “$800 billion trade deficit with the world”.  Chinese President (for life) Xi Jinping’s administration subsequently announced preliminary retaliatory tariffs against over $3 Billion in American products such as apples, steel, and pork, even as US Treasury Secretary Steve Mnuchin stated that the tariff wars are part of the United States’ negotiation strategy with China. (Both sides are reported to be quietly negotiating, even amid the climate of mutually announced tariffs. China has started making concessions, such as relaxing its foreign investment rules and expanding imports of US semiconductors.)  Even as World Trade Organization (WTO) Director General Roberto Azevedo cautioned against the impact of such a trade war on the global economy, the WTO did not deny that under GATT Article XXI(b)(iii) (Security Exceptions), the United States could take “any action which it considers necessary for the protection of its essential security interests…taken in time of war or other emergency in international relations.”  President Trump’s two presidential proclamations declaring tariffs against aluminum imports and steel imports heavily refer to the impairment of the United States’ national security interests as the basis for imposing tariffs.  The United States provisionally exempted NAFTA partners Canada and Mexico from the steel and aluminum tariffs, using the bludgeoning effect of threatened tariffs in the pending NAFTA renegotiations.  Last weekend, South Korea acceded to the United States’ demands to revise their KORUS Free Trade Agreement, which US President Trump is now tying to the outcome of its forthcoming summit with Kim Jong Un of North Korea. Trade is now more deliberately leveraged as a national security issue.

Significantly, no State in the international community seriously challenges that the security exception in GATT Article XXI is a self-judged matter that takes a governmental measure out of the ambit of WTO law. (Qatar’s pending complaint against the United Arab Emirates (UAE) at the World Trade Organization – previously featured here – seeks review of any Member’s assertion of national security under GATT Article XXI, but it appears other Members such as the United States have taken the opposing view that “national security issues are political and not appropriate for the WTO dispute system.”)  Even the European Union, which threatened tariffs against the United States if it was not exempted from the US tariffs on steel and aluminum (it eventually got the exemption for all EU Members), did not challenge the factual basis behind the United States’ use of the national security justification in its presidential proclamations on tariffs against steel and aluminum imports.  The United States had invoked, as its factual basis for invoking national security, the supposed “weakening of (its) internal economy, leaving the United States almost totally reliant on foreign producers…that is essential for key military and commercial systems”.  Considering that President Trump had just boasted about the tremendous strength and independence of the United States economy at the World Economic Forum in January 2018, it was baffling that the United States made this seeming volte face to invoke GATT Article XXI.  The Trump administration has also invoked the President’s self-judged discretion to decide when national security is impaired in the case of foreign investment into the United States, most recently to block Singaporean company Broadcom’s US$117 billion takeover of Qualcomm, thereby increasing the number of blocked proposed acquisitions of United States businesses (by countries such as Germany, China, and Singapore) on national security grounds. 

And yet, it is not only the United States that has resorted to national security reasons in the past year for retaliatory trade measures, investment restrictions, and other international economic measures.  The European Commission anchors its new proposal to tax digital business activities; the forthcoming implementation of the General Data Protection Regulation (GDPR) (ensuring data privacy and protection rules applicable to all companies processing data of EU nationals, whether located in the EU or elsewhere); as well as the recently opened investigation of the massive data leak from Facebook and Cambridge Analytica, ultimately on the Commission’s many concerns about EU Members’ regional, national, and economic security.  China has set up its own national security review of foreign investments into China, mirrored by Australia’s recently strengthened national security review of foreign investments (China-sourced or otherwise) into critical infrastructure.  India and Sri Lanka have also raised national security concerns over China’s One Belt, One Road (OBOR) program.  Nigeria demurred from joining the recently-launched 44-member African Continental Free Trade Area, citing economic and security implications of the agreement.

Such muscular and frequent assertions of ‘national security’ as justifications for international economic measures does bring to the forefront the timeless debate on whether international courts and tribunals can review a State’s assertion of ‘national security’.  In this post, I maintain my key argument in 2012 that modern international law still does not subscribe to the classical view of ‘national security’ as a Schmittian exception – e.g. one that takes a measure justified by national security outside of the purview of any law – but instead continues to regulate the safety-valve functions of national security or national emergency clauses as exceptions, to the point that the mere assertion of national security cannot completely take out an economic measure from the purview of international economic regulations either.  Whether a State invokes ‘national security’ to impose or threaten measures for bargaining leverage in negotiations or to force reductions of trade deficits; or to impose new economic regulations, review, or restrictions against foreign businesses – the current framework of international law and international economic law has at least developed to the point that there will be some review of a State’s asserted national security justification, even if it is only for international tribunals to preliminarily decide whether they have jurisdiction over the disputes before them.  I refer to dispute settlement under the WTO, foreign investment arbitral tribunals, international investment court proposals such as China’s investment court for OBOR projects and the EU’s multilateral investment court, as well as traditional court adjudication under the International Court of Justice.

Read the rest of this entry…

 

Announcements: CfP Workshop on the Sociological Perspectives on International Tribunals; Additions to the UN Audiovisual Library of International Law; CfS International Legality of Economic Activities in Occupied Territories Workshop

Published on April 1, 2018        Author: 

1. Call for Papers: Workshop on the Sociological Perspectives on International Tribunals (Max Planck Institute Luxembourg). A growing community of scholars has recently been bringing international law into conversation with sociological research and theory. The fourth workshop on the sociology of international law will be held on 8 – 9 November 2018 at the Max Planck Institute Luxembourg for Procedural Law, and it aims to focus on various sociological perspectives on international tribunals. Scholars and graduate students are invited to submit abstracts by 18 May 2018.  Abstracts of no more than 300 words should be sent to Nathalie Perrin nathalie.perrin {at} mpi(.)lu by 18 May 2018, and should include the author’s name, affiliation, and full contact information. Decisions regarding inclusion in the workshop program will be sent by 17 July 2018.

2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added the following lectures to the UN Audiovisual Library of International Law website: Professor Marcelo Kohen on “The Institute of International Law” in English and French, Professor Jean-Marc Thouvenin on “La nationalité des navires”, and Professor Joseph Weiler on “A Geology of International Law”. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.

3. Call for Submissions: International Legality of Economic Activities in Occupied Territories Workshop. The T.M.C. Asser Institute, the Centre for the Law of EU External Relations (CLEER) and The Hague University of Applied Sciences, under the aegis of The Hague Academic Coalition (HAC), invite submissions of abstracts for a workshop on the ‘International Legality of Economic Activities in Occupied Territories’. The workshop will take place at the Asser Institute in The Hague, on 17 October 2018. For further information, see here

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