As reported in Serbian and Croatian media yesterday, and officially confirmed by the Court today (press release). As for what the Court will decide, it will most likely find that no crime in the conflict in Croatia constitutes genocide, that it lacks the jurisdiction to decide on the responsibility of either state for any other crime, and that accordingly it has to reject both Croatia’s claim and Serbia’s counterclaim. By ‘most likely’ read ‘virtually inevitable, so that I would fall of my chair if the Court did anything else’ – see more here. We’ll see whether the Court will say something interesting on various ancillary substantive questions before it reaches its main conclusion.
Announcements: Workshop at Brunel; International Society for Public Law Conference in New York; EJIL: Live! Extras; CfP: Palestine Yearbook of International Law; The Hague YB of International Law – CfP; Call for Applicants for Harvard Human Rights Program; CfP for Conference in Berlin on FTAs and Democratic Standards
1. The Centre for International and Public Law (CIPL) at Brunel University London is delighted to invite you to a Reflective Workshop on the International Criminal Court (ICC). The workshop, supported by the International Human Rights Law Review – www.brill.com/hrlr and Brunel Law School, will be held in the Moot Court Room at Brunel Law School, London (UK), on 28 January 2015, 2:00 pm – 5:00 pm. The workshop is entitled “International Criminal Court in Action” and will include presentations by researchers on the ICC chaired by Professor Manisuli Ssenyonjo (Professor of International Law and Human Rights). The workshop will take the form of presentations, a round table discussion with questions from the Chair and the floor. It will be followed by refreshments. Attendance is free. Further details and abstracts are available here.
2. The 2015 ICON·S Annual Conference will take place on July 1-4, 2015, at New York University (NYU) School of Law in New York City. The Call for Panels and Papers will be published by February 28, 2015. More information will be available soon on the ICON·S website. The International Society of Public Law (ICON·S) was officially launched in June 2014 at an Inaugural Conference sponsored by the European University Institute and NYU School of Law in Florence, Italy. The conference featured a keynote address by Jeremy Waldron, plenary papers by Robert Keohane, Ruth Rubio Marin and Joseph H.H. Weiler, and hundreds of participants in concurrent panels on all subjects in public law. Presided by Sabino Cassese, ICON·S emerged from the Editorial Board of I·CON—the International Journal of Constitutional Law. The ICON·S Executive Committee includes Sujit Choudhry, Gráinne De Búrca, Ran Hirschl, Bing Bing Jia, Susanna Mancini, Phoebe Okowa, Michel Rosenfeld, Ruth Rubio Marin, Hélène Ruiz Fabri, Anne van Aaken, and Joseph H.H. Weiler.
3. In case you missed it, 3 episodes of EJIL:Live Extra! are available for viewing. EJIL: Live Extras! are shorter, in-a-nutshell, episodes of EJIL:Live addressing a variety of topical and interesting issues. The available episodes are interviews with Aharon Barak, former President of the Israeli Supreme Court on the Israeli Supreme Court’s approach to standing and justiciability; Brian Leiter, University of Chicago on whether freedom of religion deserves special protection; and André Nollkaemper, President of the European Society of International Law (ESIL), on the first 10 years of ESIL. Read the rest of this entry…
It was a pleasure to read Eirik Bjorge’s The Evolutionary Interpretation of Treaties. The book is well written and exceptionally well researched. Eirik demonstrates nothing less than an encyclopedic knowledge of the relevant case law and scholarship, and has seemingly read every single bit of text that the International Law Commission and its rapporteurs have produced on the question of interpretation. Eirik’s book is beyond question the most comprehensive examination to date of the issue of evolutionary treaty interpretation, and it fills an important gap in the literature.
While the virtues of the book are many, I cannot help but feel that, had Eirik chosen a different methodological path, the book could have been significantly more illuminating with regard to the nature of the phenomenon of evolutionary interpretation. This is not because I take issue with the main thrust of Eirik’s argument, namely that evolutionary interpretation is perfectly compatible with the rules of interpretation set out in Articles 31-33 of the Vienna Convention on the Law of Treaties. Yes, it is – at least partly because the Vienna ‘rules’ are so broad and flexible that one can do (almost) whatever one wants with them.
This week we’ll be hosting a discussion of Eirik Bjorge’s recent book with OUP, The Evolutionary Interpretation of Treaties.
Eirik Bjorge is the Shaw Foundation Junior Research Fellow at Jesus College, University of Oxford. Eirik has, among other things, been pensionnaire étranger at École normale supérieure, visiting researcher at Sciences Po and the Max Planck Institute for Comparative Public Law and International Law, and stagiaire at the Conseil d’État and the European Court of Human Rights. He has taught at Oxford and at Sciences Po. He is the author of The Evolutionary Interpretation of Treaties (OUP, 2014) and Domestic Application of the ECHR: Courts as Faithful Trustees (OUP, 2015).
Eirik’s book will be discussed by Ulf Linderfalk, James Crawford, Isabelle Van Damme, and Marko Milanovic. Eirik will start off the discussion with an introduction, and wrap it up with a response to the four discussants. We are grateful to all of them for their participation.
In my last post on the Jaloud v. Netherlands case, I looked primarily at the bottom line of the case and what it will mean for the future. In this post, however, I would like to try to clarify the conceptual framework of jurisdiction, attribution and responsibility (which Aurel also looked at in his post) that the Court used (or should have used) in the case. The key parts of the judgment in that regard are paras. 140-155, which I will not reproduce in full here, plus the concurring opinion of Judge Spielmann, joined by Judge Raimondi.
It is clear from even a cursory read of the Spielmann opinion (as well as the concurring opinion of Judge Motoc, who writes in opposition to the two other Judges), that the judges of the Grand Chamber found the question of the relationship between the Article 1 ECHR concept of state jurisdiction, and general international law concepts such as attribution of conduct and responsibility for wrongful acts, to be particularly vexing. Judging by the language used, there must have been quite the internal debate. Judges Spielmann and Raimondi found the Court’s use of the attribution concept and its references to the case law of the ICJ (para. 95-97) and the ILC’s Articles on State Responsibility (para. 98, quoting articles 2, 6 and 8) to have been exceptionally objectionable, indeed ‘ambiguous, subsidiary and incomprehensible.‘ For the two Judges, attribution was a ‘non-issue’ in the case, which the Court should have avoided:
There was therefore no need to examine the non-issue of “attribution”, which is completely separate from the question of “jurisdiction”. More fundamentally, the Court should in any event be careful not to conflate the notions of jurisdiction under Article 1 with the concept of State responsibility under general international law. Efforts to seek to elucidate the former by reference to the latter are conceptually unsound and likely to cause further confusion in an already difficult area of law.
Contrary to the two Judges, I will try to show that attribution was, in fact, a central issue in the case, and that the Court’s approach, including references to the ILC’s work on state responsibility, was generally sound. However, I will also show that the Court could have been clearer in explaining what it was actually doing, which would have had the salutary effect of avoiding potentially confusing points for future cases. In fact, at least to an external observer, the divide between the majority and the two Judges is not as great as it might first seem, and the important conceptual points that they raise in the separate opinion can and should be adequately addressed.
In co-sponsorship with the European Society of International Law, on 6 October 2014 the Belgrade Centre for Human Rights had the honour of hosting Dame Rosalyn Higgins QC as the inaugural lecturer in the series of memorial lectures in honour of Professor Vojin Dimitrijević, the Centre’s founder and long-time director. The series will consist of memorial lectures by an eminent scholar or public figure in international law, international relations, and human rights. The lectures will be held annually, in October each year, at the anniversary of Professor Dimitrijević’s passing. The Centre is most grateful to Dame Rosalyn for starting the series. Her lecture on ‘Rules, Choices, and International Law’, which was also branded as an ESIL Lecture, is now available on the ESIL website and ESIL’s Youtube channel.
Following up on Aurel’s post on the Jaloud v. Netherlands case, I want to add a few brief thoughts regarding the bottom line of the judgment and what it means for the overseas military operations of European states.
First, Jaloud confirms the general trend in the European Court’s case law towards a more expansive approach to the extraterritorial application of the ECHR. Whether you think an expansive approach is a good idea or not, the trend is there, since the normative pull of universality is hard to resist, and as the Court becomes increasingly more familiar with applying the Convention to extraordinary situations. I personally feel that the judgment is correct in its basic approach to extraterritoriality, even if there is some conceptual confusion between various questions of jurisdiction and attribution, on which I will write separately. But the basic message to states is this: trying to exploit the many contradictions in the Court’s case law on extraterritoriality to deny the applicability of the Convention in this case or that will in most circumstances end in defeat. Rather than fighting a losing battle, states should focus their energies on arguments on the merits on which they are more likely to win.
This week and next we will be hosting a discussion of Russell Buchan’s book International Law and the Construction of the Liberal Peace, recently published by Hart. The book was awarded the 2014 Lieber Prize by the American Society of International Law for an outstanding monograph in the field of the law of armed conflict.
Dr Russell Buchan is a senior lecturer in international law at the University of Sheffield. He has published in leading academic journals in the field of public international law, with a focus on collective security, international humanitarian law and cyber security. Dr Buchan sits on the editorial board of the Journal of the Use of Force in International Law and the International Community Law Review. Dr Buchan is Co-Rapporteur for the International Law Association’s Study Group on Cybersecurity, Terrorism and International Law.
Russell’s book will be discussed, next week, by Brad Roth, Jean d’Aspremont, and Greg Fox. Tomorrow, Russell will start the discussion off with an introduction, and will conclude it next week with a response to the three discussants. We are grateful to all of them for their participation.
Readers may recall that a couple of years ago I wrote about the story of Stephen Gough, aka the Naked Rambler, a man who has been repeatedly incarcerated in British prisons since 2006 for his refusal to wear any clothing in public. Indeed, he has spent most of that time in solitary confinement, since he could not join the rest of the prison population while refusing to wear clothes. Gough’s behaviour is due to a strongly and sincerely held belief that there is nothing shameful about the naked human body. And while Gough certainly has been obstinate (and has for some unfathomable reason sacrificed his family and other relationships for the sake of this cause), he is not crazy – indeed, his psychiatric evaluations have been stellar.
This case is so interesting precisely because it juxtaposes the expressive interests of a single individual against the preferences of the vast majority of ordinary people, who disapprove of public nudity, and because of the way that the machinery of the state is used to enforce a societal nudity taboo. Indeed, Gough’s case now rambled all the way to Strasbourg. This week, a unanimous Chamber of the European Court of Human Rights rejected Gough’s claims that his freedom of expression and right to private life were violated by his convictions in the UK (app. no. 49327/11).
Lawrence Hill-Cawthorne has written an excellent analysis of the European Court’s recent Hassan v. UK judgment, which I fully subscribe to and have nothing substantive to add. Rather, I wish to use this post to outline some thoughts on the practical impact of Hassan, its bottom line and possible future influence.
(1) When it comes to the extraterritorial application of the Convention, the Court has now reaffirmed that de facto physical custody will ipso facto constitute Article 1 jurisdiction, within the personal model of jurisdiction as authority and control over an individual. The Court did not seem to put any limits on this principle (and rightly so), not even the vague idea of ‘public powers’ that it invented in Bankovic and imported into the personal model of jurisdiction in Al-Skeini (cf. the Court’s finding in Hassan, para. 75 that the events took place before the UK assumed responsibility for the maintenance of security in South East Iraq, which was the basis for the ‘public powers’ in Al-Skeini). Similarly, the Court (again, rightly) focused on factual control, disregarding some of the formal arrangements under a memorandum of understanding between the UK and the US (para. 78), and finding that ‘Tarek Hassan fell within the jurisdiction of the United Kingdom from the moment of his capture by United Kingdom troops, at Umm Qasr on 23 April 2003, until his release from the bus that took him from Camp Bucca to the drop-off point, most probably Umm Qasr on 2 May 2003 ‘ (para. 80).
The bottom-line of this approach is that whenever the military forces of a European state capture any individual, no matter where that individual is located (note how the Court again, like in Al-Skeini, explicitly avoided ruling whether the territory of South Iraq was under UK control for the purpose of the spatial conception of jurisdiction (para. 75)), the Convention will apply by virtue of the personal conception of Article 1 jurisdiction as authority and control over individuals. The Convention will apply on this basis not only to detention operations in Afghanistan, but also to situations such as the French intervention in Mali, the capture of Ukrainian soldiers by Russian forces in Crimea, etc. This is fully consistent with the English High Court’s Serdar Mohammed judgment, which rejected the UK government’s attempts to confine Al-Skeini to the facts of Iraq (for our previous coverage of Serdar Mohammed, see here).
In short, European soldiers carry the ECHR with them whenever they engage in capture operations. Military legal advisers and other officials will hence inevitably have to take the Convention into account (as many have been doing anyway). Use of force operations are not so comprehensively covered – at least for the time being.