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The Tories and the ECHR: Mere Incompetence or Deliberate Deception?

Published on October 7, 2014        Author: 

The Conservative Party in the UK has released a paper entitled ‘Protecting Human Rights in the UK – The Conservatives’ Proposals for Changing Britain’s Human Rights Laws’. This is in the aftermath of David Cameron’s pledge during the Conservative Party conference last week to scrap the Human Rights Act 1998, the domestic statute which transformed the European Convention of Human Rights into UK law, allowing for ECHR rights, as transformed through the HRA, to be directly invoked before and applied by UK courts. This is to be replaced by a ‘British Bill of Rights and Responsibilities’, a draft of which the Tories have pledged to shortly publish for consultation.

The pledge, and the paper, have already provoked a flurry of responses, both in the press and in numerous blog posts (though the best summary is aptly given by the Daily Mash in an article entitled ‘Human rights laws to be replaced by gut instinct‘). Many of these articles and blog posts, including the post here by Martin Browne,  have made a number of important points regarding the impact of such a change in UK law and international law, as well as with respect to devolution and the Good Friday Agreement. This short post aims to simply highlight the impact of the proposed Conservatives’ changes from the perspective of public international law. This impact would be rather minimal, except that the proposed changes will increase the danger of the UK running afoul of its international obligations, of it engaging its international responsibility. That is, of course, unless the real aim is to withdraw from the ECHR.

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Challenging (Some) Stereotypes and the DNA of (International) Law

Published on April 24, 2014        Author: 

Karen Alter has written an important and useful book surveying the ‘new terrain’ of international law. The book straddles international law and international relations/political science, and thus readers on both sides of the fence may find it a challenging read—as Karen herself acknowledges in the Preface. But this is not the only reason why readers may find the book challenging: its stated intention is to challenge stereotypes about international courts, and to demonstrate through the emergence of ‘new-style’ courts that we are moving from a contractual understanding of international law to a rule of law mentality. This is because ‘new-style’ courts do not engage solely in (bilateral) dispute settlement but rather also undertake public law functions such as enforcement, administrative review and constitutional review. I fully subscribe to Nico Krisch’s comments on how these functions interact (and have always interacted).

In this short comment I want to focus on the book’s central claim, not so much to summarily disagree with it—in fact to some extent I agree with the claim—but rather to highlight why I think it might be glossing over some important issues from the perspective of international law. Such glossing over may weaken the central claim, which is made with great force. As a (self-proclaimed) positivist international lawyer I found some of the arguments on which the central claim is based hard to digest.

The first point that I want to raise is about the ‘contractual’ paradigm of international law (and dispute settlement) and the move to a ‘rule of law’ paradigm (and public law functions). I should say at the outset that I find terms like ‘rule of law’ inherently suspicious, precisely because they operate as shibboleths for something good without having any agreed content—except perhaps in the broadest possible sense. More on this below. But there is also a problem with the contractual paradigm and ‘new-style’ international courts as an indicator of moving away from it. Well, we are and we aren’t moving away from it, for one, and it is not international courts that predominantly signify whatever move there is, in my view.

Whether we are moving away from a contractual conceptualisation of international law, and whether this is a new development signified by the rise of ‘new-style’ courts depends, first, on what we understand as such a contractual paradigm. Karen seems to be focusing a lot on treaty obligations (which in the first instance are contractual in the broadest sense) and indeed on reciprocal obligations, even arguing at some point that the violation of a contractual obligation ‘dissolves’ the counterparty’s obligation—which it does not, and in any event not automatically. But we have been moving away from this narrowly-conceived contractual paradigm since the late 40s; suffice it to mention here the Reservations to the Genocide Convention Advisory Opinion and the Barcelona Traction Judgment, to take just examples from the oldest-style permanent court you could imagine – the ICJ. The point is that this has not really translated in any significant change in locus standi for actors other than (directly injured) States except in the example of the very particular courts that Karen deals with in her book. Read the rest of this entry…

 

Kadi Showdown: Substantive Review of (UN) Sanctions by the ECJ

Published on July 19, 2013        Author: 

I. Introduction

After more than a decade on the UN 1267 sanctions list, Yassin Abdullah Kadi was delisted by the UN 1267 Committee on 5 October 2012, following review of a delisting request he had submitted through the Office of Ombudsperson: a mechanism established by Security Council Resolution 1904 (2009) and enhanced by Security Council Resolution 1989 (2011)—and a mechanism which the Kadi cases before the European Union courts (along with some others in domestic courts, such as Nada, Abdelrazik, Hay, Ahmed, etc) pushed to create.

Kadi’s delisting came at a time when the European Commission, the Council of the EU, and the UK were pursuing an appeal against the General Court’s decision in Kadi II. This was the decision striking down Kadi’s re-listing by the EU following the annulment of the Regulation listing him for the first time by the ECJ in Kadi I (for comment see here). And yet the appellants did not give up their appeal. It was not just that the delisting came shortly after oral argument before the ECJ had been concluded; they also wanted a decision on the serious issues raised in Kadi II, in particular the question of the standard of review that EU courts will apply in reviewing UN-imposed terrorist sanctions against named individuals and legal entities. The importance of this jurisprudence for future cases is obvious.

The Grand Chamber of the ECJ delivered its decision on the Kadi II appeal on 18 July 2013. It upheld the decision of the GC striking down the Regulation relisting Kadi, even if it did overturn part of the GC reasoning. Most notably, it affirmed that it will continue to review EU listings implementing strict Security Council obligations in the face of lack of equivalent control at UN level, it insisted on a rather strict standard of review of such listings, and it undertook—for the first time—substantive review of the reasons for listing offered by the EU (which were in fact merely those offered in the terse ‘narrative summary of reasons for listing’ that the Security Council released). Read the rest of this entry…

 

Call for Papers: ILA Study Group on Domestic Courts and International Law

Published on May 5, 2013        Author: 

The ILA Study Group on ‘Principles on the Engagement of Domestic Courts with International Law’ has issued a call for papers. Those selected will be invited to participate in the discussion of their papers by the Study Group, and will be potentially included in a relevant publication. The deadline for submission of proposals is the end of May. Full details can be found on the Study Group’s website, and the call may be directly downloaded (pdf) here.

 
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Sharing Responsibility for UN Targeted Sanctions

Published on February 14, 2013        Author: 

Cross-posted from the SHARES Blog

UN targeted sanctions, especially those related to terrorism, have had their fair share of the limelight lately, particularly in view of important decisions by the ECJ, the ECtHR, the UK Supreme Court and others in cases such as KadiNada, and Ahmed. Here, I try to look at this jurisprudence through the lens of the project on shared responsibility (SHARES). After introducing the relevant sanctions regime, I argue that the complex conduct of the UN and its member-states in designing, imposing, and implementing the sanctions leads to them sharing international responsibility for the resulting breach of aspects of the internationally protected right to a fair trial. This is so because states are ‘held responsible’ in their own domestic courts or in regional international courts, which then forces them to turn to the UN and seek to implement the organisation’s international responsibility. In this manner, the international responsibility for what is in effect ‘shared’ conduct is itself shared, in practice. Read the rest of this entry…

 
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Kadi and the Solange Argument in International Law

Published on January 15, 2013        Author: 

Antonios Tzanakopoulos is University Lecturer in Public International Law at the University of Oxford and Fellow of St Anne’s College, Oxford.

It is a pleasure to have been invited to contribute to the discussion of the article by Juliane Kokott and Christoph Sobotta on balancing constitutional core values and international law against the background of the Kadi case. At the outset I must state that I find myself in broad agreement with what I understand to be the authors’ central argument: ie that the CJEU (or ECJ) employed a variant of the Solange argument, if implicitly, in its Kadi judgment of 2008. I have in fact also argued this in a paper I presented in Oslo in 2009, which appeared in print in January 2012 (here) and indeed on this blog (here and here). I would kindly ask readers (if any) to also read the latter blog posts, as the present comment builds on the premises there laid out.

I will proceed with the discussion of three major issues that arise from the authors’ discussion of Kadi as a balancing exercise between constitutional core values and international law. The first issue refers to the perceived ‘dualism’ of Kadi and consequently of any attempt to employ a Solange argument. The second issue deals with the content of the Solange argument, in particular with the rules it seeks to establish and / or safeguard. And the final issue deals with the justification of the Solange argument in (international) law and the ‘battle for the analogy’. Read the rest of this entry…

 
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Greek Court Acquits Immigrants who Escaped Appalling Detention Conditions

Published on January 12, 2013        Author: 

In the midst of ever deepening economic woes, Greece is struggling with yet another crisis, this time of a humanitarian character. It is no secret that thousands of immigrants crossing into Greece mainly from Asia and Africa are held in appalling conditions in Greek detention centres. The UN Special Rapporteur on the human rights of migrants visited such centres just before the end of 2012 and faced a bleak situation (the relevant report is still forthcoming, but see the Reuters report here), while the Grand Chamber of the European Court of Human Rights found already in January 2011 that returning an asylum seeker to Greece under Dublin II violates Article 3 of the ECHR (see M.S.S. v Belgium and Greece, paras 344 seq, along with a description of the horrible conditions of detention facing immigrants and asylum seekers in Greece).

Today, media in Greece are reporting that the single-judge formation of the Criminal Court of First Instance of Igoumenitsa in northwestern Greece (Μονομελές Πλημμελειοδικείο Ηγουμενίτσας) has returned a remarkable decision (Nr 682/2012) in a prosecution brought against a number of immigrants awaiting expulsion who escaped a local detention centre. Relevant reports in the Greek press can be found here and here, and a redacted version of the rather short decision is published here (all three documents are in Greek) Read the rest of this entry…

 

Legality of Veto to NATO Accession: Comment on the ICJ’s Decision in the Dispute between fYR Macedonia and Greece

Published on December 7, 2011        Author: 

Antonios Tzanakopoulos is Lecturer in International Law at UCL Laws and the University of Glasgow.

On Monday, the International Court of Justice delivered its judgment in the curious case between ‘the former Yugoslav Republic of Macedonia’ (hereinafter: ‘fYR Macedonia’) and the ‘Hellenic Republic’ (hereinafter: ‘Greece’). In this case, fYR Macedonia (appearing before the ICJ for the first time) complained that Greece, in objecting to fYR Macedonia being invited to join NATO in 2008, had violated its obligation under the Interim Accord of 13 September 1995 ‘not to object’ to fYR Macedonia joining any international organizations, as long as it applied under its ‘provisional designation’ provided for in Security Council Resolution 817 (1993). The judgment brings up many interesting questions. Apart from matters of jurisdiction and admissibility, perhaps the most interesting issues in the Court’s judgment are (i) its approach to treaty conflicts; (ii) the relationship between the grounds for termination of treaties under the law of treaties and defences available under the law of state responsibility; and (iii) its elucidation of the obligation to negotiate in good faith. Some of these points are taken up after a brief introduction to the dispute.

I. Background to the Dispute

The background to the case before the ICJ is a much older, long-running dispute between the two States as to fYR Macedonia’s name. It is a dispute in which national(istic) sentiment runs high on both sides, and this has caused it to be blown out of all proportion and to have lingered for way too long. ‘Macedonia’ is the name of a historical and geographical region that extends mainly between Greece, Bulgaria, and fYR Macedonia (the precise percentages, if there can be such a thing, depend on who you ask—historical Macedonia was never precisely delimited, as one would no doubt expect). It is also the name of an administrative region in northern Greece, and it was the name of a constituent republic of the Socialist Federal Republic of Yugoslavia, which, upon the SFRY’s dissolution, hoped to continue using the name it had as a constituent entity.

Greece took exception to the use of the name of one of its administrative regions and the irredentist claims made in the fYR Macedonian constitution and by the fYR Macedonian authorities in an attempt to galvanize national solidarity in the midst of a civil war. It responded with several forceful (if non-forcible) measures on the international level, blocking the small country’s accession to international organizations and imposing economic sanctions (for more details see here). Attempts were made to normalize the relationship between the two States in the autumn of 1995, with the adoption of an Interim Accord. The 1995 Interim Accord, besides its unique language (it refers to Greece and fYR Macedonia as the ‘party of the first part’ and the ‘party of second part’ respectively, following which the Court refers to the two States as the ‘respondent’ and ‘applicant’ throughout the judgment), established a number of obligations for the two States: fYR Macedonia had to cease using a symbol that Greece considered part of its cultural patrimony, for example, and undertook that nothing in its constitution could be interpreted as an irredentist claim (Arts 7(2) and 6); both parties had to cease any propaganda, etc, and to negotiate in good faith as to fYR Macedonia’s definitive name (Arts 7(1) and 5(1)); and Greece, for its part, agreed not to object to fYR Macedonia’s applications to join international organizations, as long as the latter applied under the provisional designation stated in para 2 of Security Council Resolution 817 (1993), namely as ‘the former Yugoslav Republic of Macedonia’ (Art 11(1)). The ‘artist formerly known as Prince’, who also changed his name in 1993, did not bother commenting on this development—as an aside it is worth noting that Prince did resolve the issues with himself about his name in 2000.

It is this last provision that led to fYR Macedonia’s application to the ICJ. fYR Macedonia had been hoping to be invited to accede to NATO during the 2008 Bucharest Summit—under its provisional designation (fYR Macedonia) as envisaged in the Interim Accord, just as it had joined a number of other international organizations previously. Such invitation was not extended, however, and fYR Macedonia accused Greece of objecting to its accession to NATO. It filed an application with the ICJ, alleging that Greece had violated its obligation not to object under Art 11(1) of the Interim Accord, given that fYR Macedonia had sought to accede to NATO under its provisional designation. Read the rest of this entry…

 

Disobeying the Security Council—Some Responses

Published on May 30, 2011        Author: 

Many thanks to Erika de Wet, Marko Milanović, and Matthew Happold, who took the time to read Disobeying the Security Council and write such carefully considered criticisms of what are indeed the central arguments in the book. In what follows I try to respond to some of these criticisms and comments, mainly be reiterating points made in the book, but also trying to take some of them further. Erika de Wet notes, in her review, that the relevant arguments put forward in the book are not ‘watertight’ and require further motivation. No argument there (excuse the pun)—I doubt that any argument (of mine?) could ever be watertight. What I sought to do in Disobeying the Security Council was to offer an interpretation of state practice in response to legally problematic Security Council sanctions, and to legally qualify the admittedly rare instances of principled disobedience of such sanctions that are perceived by states as being wrongful. In that, the book does not really seek to advance a normative argument (‘this is how things should look’) but rather to offer how things actually do look—even if only in its author’s eyes. So much by way of introduction to my responses. Read the rest of this entry…

 
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An Overview of Disobeying the Security Council

Published on May 24, 2011        Author: 

I. Introduction

Disobedience of an illegal or unjust command has long been a source of inspiration and scholarly excitement for lawyers, philosophers, and even dramatists, among many others. One of the best known tragedies of Sophocles, Antigone, sees the heroine defy the edict of Creon, the ruler of Thebes, in order to comply with the superior (in her view) rule that requires that she bury her dead brother in accordance with holy rites. How to qualify and/or justify disobedience in extreme cases has ever since featured as one of the most hotly debated jurisprudential issues. The book that will be discussed here deals with the legal qualification of disobedience of binding Security Council sanctions resolutions that are perceived by States as being in violation of the UN’s obligations.

At the outset I should like to thank EJIL:Talk! for hosting a debate on Disobeying the Security Council. I am in particular grateful to the editors-in-chief and to OUP for so kindly and diligently organizing this, as well as to the commentators who took the time to read and engage with the book (at least now I can plausibly argue it has been read by more than the proverbial average of two people who read most academic monographs: the author, and their mother). The book is an updated version of my DPhil thesis at the University of Oxford, which was submitted under the rather uninviting title ‘Responsibility of the United Nations for Wrongful Security Council Non-forcible Measures’ (ie Article 41 measures or simply ‘sanctions’).

The first move is to explain why I am focusing on the international responsibility of the United Nations rather than discuss its ‘accountability’. The term has attracted a lot of attention in the scholarship dealing with the question of limits on the ever-augmenting powers and impact of international organizations, despite its less-than-obvious ambit. The opening chapter of the book is devoted to discussing the definition and substance of the term, and to showing that international (legal) responsibility is the most pertinent (and the ‘hardest’) form of accountability that can be employed in the case of the United Nations when the latter is acting through the Security Council. This leads into the discussion of the specifics of UN responsibility for Council sanctions that follows. The discussion is structured in three parts, which follow by-and-large the structure of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (‘ASR’), as well as the Draft Articles on the Responsibility of International Organizations (‘DARIO’): the first part deals with the ‘engagement of responsibility’, ie the requirements for the UN to become responsible under international law (II). The second part proceeds to question who is to determine the engagement of UN responsibility, ie who is to decide whether the UN has become responsible under international law for Security Council ‘sanctions’ (III). The final part deals with the consequences of the UN having engaged its responsibility (IV).

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