If I may be forgiven for lowering the level of conversation (yet again) after the excellent post by Jure Vidmar & Craig Eggett and Larry Helfer’s post over on Opinio Juris discussing many important legal issues – I just wanted to share a (rare) happy Brexitian thought. In Broadway’s smash-hit Hamilton, coming soon to London’s West End, King George sings a delectable British Invasion-y break-up song to his American soon-to-be-ex subjects (“You’ll Be Back”) and then follows up with two shorter songs on the same tune (one of them, “What Comes Next”, works magnificently here as you’ll see). Now, I concede that the analogy is imperfect, but humour me. Just picture in your head Donald Tusk or (better yet) Jean-Claude Juncker at his charming best, belting this out to Britain on behalf of the EU. Got that? Hold that in, take a breath. Then listen, read the lyrics below, and tell me you can’t feel the magic. Am I right or what?
So it is Brexit. As if the current volatile mix of crises affecting Europe and the world was not enough, British voters may have just dealt a death blow to the European Union (by 52% to 48%). Or things will eventually work out – nobody really knows. Nor does anybody really know whether we will now have an economic meltdown, or what exact arrangements Britain will negotiate with the EU, i.e. whether it’ll be full-calorie Brexit or Brexit lite, e.g. with respect to the single market and the free movement of people. What we do know is that the UK and the EU are entering a prolonged period of uncertainty.
We have seen (yet again) the power of emotion and identity politics, driven largely by concerns over immigration, with people voting with their guts rather than with their brains – see also Trump, Donald. (Do you know you have more nerve-endings in your gut than in your head? Look it up.) We have also seen how momentous events are shaped not only by structural processes, but also by petty decisions of single individuals who were in the right place at the wrong time. Brexit would never had happened had David Cameron not made a promise he probably didn’t think he would have to keep to have a referendum, all to appease malcontents within his own party. And while a similar gamble succeeded (just barely) with the Scottish referendum, here it backfired rather spectacularly. The Disunited Kingdom, in which London, Scotland and Northern Ireland have all voted Remain but most of England has voted Leave, is very much a reality – at least for now, since Scotland will likely have a second independence referendum in the next few years. That, and the austerity which had the greatest impact on the most vulnerable of people, is the sad legacy of Cameron’s premiership. He has just announced that he will be stepping down as prime minister by October, but the irony is that we may yet remember him sentimentally under, say, a prime minister Boris Johnson.
In other, happier news, Led Zeppelin was cleared by a US jury of charges of plagiarizing the Stairway to Heaven. So enjoy the video below (including Robert Plant’s pant Brexit), while contemplating the future.
This week the Grand Chamber of the European Court of Human Rights delivered a major judgment in Al-Dulimi and Montana Managment Inc. v. Switzerland, no. 5809/08. This is the latest in a long and complex line of cases dealing with the negative human rights impact of sanctions mandated by the UN Security Council, raising inter alia the legal effects of the supremacy clause in Article 103 of the UN Charter. For background, see these two earlier posts on the Al-Jedda and Nada cases, and Anne Peters’ excellent post on the Chamber judgment in Al-Dulimi.
By 15 votes to 2 (judges Ziemele and Nussberger dissenting), the Grand Chamber found a violation of Article 6(1) ECHR, because Swiss courts did not provide meaningful judicial review of the applicants’ listing by the Sanctions Committee of the Security Council. The size of the majority belies the amount of disagreement among the judges; of the 15 judges in the majority, 6 concurred in the result but not in the reasoning – in other words, the line of reasoning that the Court ultimately followed was in fact adopted by the barest of majorities, 9 votes to 8.
So what did the Court decide? It essentially pushed to its very limits the presumption it established in Al-Jedda, para. 102, ‘that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a United Nations Security Council resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.‘
The Court held in Al-Dulimi that because the relevant SC resolutions did not exclude domestic judicial review expressis verbis, the resolutions, when properly interpreted, left the door open for such review, which was required by Article 6 of the Convention. However, that review would be relatively minimal, ensuring that the listing of the person in question was not arbitrary. In so doing, the Court avoided (yet again!) ruling on whether Article 103 of the Charter is capable of displacing the Convention in the first place, in case there is a genuine norm conflict. Here are the key paragraphs of the Court’s reasoning:
On 7 June, the government of Belgium sent an Article 51 letter to the President of the Security Council, justifying its military action on the territory of Syria against ISIS by way of collective self-defense. The ODS link to the letter is here (S/2016/523), and here is the key paragraph articulating Belgium’s legal position:
ISIL has occupied a certain part of Syrian territory over which the Government of the Syrian Arab Republic does not, at this time, exercise effective control. In the light of this exceptional situation, States that have been subjected to armed attack by ISIL originating in that part of the Syrian territory are therefore justified under Article 51 of the Charter to take necessary measures of self-defence. Exercising the right of collective self-defence, Belgium will support the military measures of those States that have been subjected to attacks by ISIL. Those measures are directed against the so-called “Islamic State in Iraq and the Levant” and not against the Syrian Arab Republic.
Interestingly, this paragraph is taken almost word-for-word from the letter Germany had sent to the Council on 10 December 2015, S/2015/946:
ISIL has occupied a certain part of Syrian territory over which the Government of the Syrian Arab Republic does not at this time exercise effective control. States that have been subjected to armed attack by ISIL originating in this part of Syrian territory, are therefore justified under Article 51 of the Charter of the United Nations to take necessary measures of self-defence, even without the consent of the Government of the Syrian Arab Republic. Exercising the right of collective self-defence, Germany will now support the military measures of those States that have been subjected to attacks by ISIL.
Note, however, some of the differences: Belgium calls this an exceptional situation, somewhat diplomatically removes the reference to the lack of any need for Syria’s consent, even though that’s implicit in its invocation of Article 51, and adds a sentence saying that measures taken in self-defence are directed at ISIS rather than against Syria (even if Belgian airplanes are flying in Syrian airspace and discharging weaponry on Syrian territory without its consent). Both Germany and Belgium endorse a position whereby action against a non-state actor operating from the territory of another state is permitted without that state’s consent if the state lost effective control over the relevant area – this is very close to, but not necessarily exactly the same thing, as the ‘unwilling and unable’ test.
UPDATE: Many thanks to everyone contributing in the comments. I’d say that perhaps the most valuable lesson to be learned from this discussion is how all of these states are strategically using ambiguity in their various letters to the Council. They know perfectly well that the formulations that they have chosen are open to several possible interpretations, and they were deliberately chosen precisely with that in mind – not simply as a matter of diplomacy, but in order to create legal cover for what they want to do today while keeping their options open for the future. Nothing less could be expected, of course, when we bear in mind that the Council’s ISIS resolution 2249 is itself a masterful example of such a use of ambiguity. But ambiguity of this kind is also obviously detrimental when it comes to solidifying a clear position with regard to self-defence against non-state actors on the basis of state (and UNSC) practice.
In that regard, a kind reader also let me know that Norway has also sent a letter to the Council, dated 3 June, S/2016/513. The three key paragraphs are quoted below the fold – note how simply wonderful Norway is in saying nothing, beyond simply stating that it is exercising the right to collective self-defence without directing its actions against Syria.
In some ten days the International Court of Justice got three new cases on its docket. First, on 6 June Chile instituted proceedings against Bolivia with regard to a dispute concerning the status and use of the waters of the “Silala River system.” The jurisdictional basis of the case is the compromissory clause in the Pact of Bogota, and the cases raises issues of international watercourses and environmental law.
Second, on 14 June Equatorial Guinea instituted proceedings against France with regard to the immunity from criminal jurisdiction of its Second Vice-President in charge of State Defence and Security, and the legal status of the building which houses its Embassy in France. The Guinean Vice-President is under investigation for corruption offences by French authorities, on the basis that he invested the proceeds of that corruption in France. French prosecutorial and judicial authorities have held that he has no claim to immunity. The building in question was first bought by the Vice-President and then sold by him to the Guinean Embassy; French authorities assert that it is not protected by immunity since it was bought out of the proceeds of the offences for the which the Vice-President in being prosecuted for, and is not part of the diplomatic mission. The jurisdictional basis for the case is the compromissory clauses in the protocol to the Vienna Convention on Diplomatic Relations and the UN Convention against Transnational Organized Crime.
Finally, yesterday Iran instituted proceedings against the United States in a dispute concerning alleged violations of the 1955 Treaty of Amity, and on the basis of the compromissory clause in that Treaty. The case essentially concerns the alleged US failure to respect the immunity of the Iranian Central Bank/Bank Markazi and other Iranian entities, as well as other rights conferred by the Treaty (the Court will not have jurisdiction for violations of customary international law directly, but only insofar as these rules are referred to or assist in the interpretation of the provisions of the Treaty). Enforcement proceedings have been brought in the US against these Iranian entities for Iran’s involvement in terrorist activities; see more on the whole affair the previous post by Victor Grandaubert.
Last week the UN Human Rights Committee delivered an important decision in Mellet v. Ireland, finding that, as applied to the claimant, the Irish ban on abortion violated several articles of the ICCPR. This was because the ban extended even to pregnancies, like the claimant’s, where the foetus was diagnosed with a fatal abnormality, so that it would either die in utero or shortly after delivery. The claimant was thus forced by Irish law to choose between carrying the baby to term, knowing that it would inevitably die in her womb or immediately after birth, or having to travel to the UK to get an abortion. The claimant chose the latter option, at great personal expense and with a lot of pain and indignity along the way, including having the ashes of her baby unexpectedly delivered to her by courier a few weeks after the abortion.
The Committee was unanimous on the bottom line of the case, which is that the abortion ban, as applied to the claimant, constituted cruel, inhuman or degrading treatment in violation of Article 7 of the Covenant, as well as a violation of her right to privacy under Article 17 of the Covenant. While the reasoning of the Committee is at times laconic (as is unfortunately the norm with its views), the basic idea behind the decision was essentially that even if the claimant’s rights were subject to an implicit or explicit balancing exercise, in light of the fact that her unborn child would inevitably die there was nothing to balance with the intrusions into her own interests. In other words, Irish law forced her to endure significant suffering for no real purpose, since the unborn child would die anyway.
The Committee’s views in this case are thus confined to its specific circumstances; it has not created a right to abortion on demand or asked Ireland to liberalize access to abortion fully, but to (at the very least) create an exception to its ban that would accommodate women in the claimant’s situation. The main problem here is that the Irish abortion ban stems from a constitutional provision, which was interpreted by the Irish Supreme Court as only allowing for an exception if there is real risk to the life, but not to the health, of the mother. Ireland can thus comply with the Committee’s recommendation only if the Supreme Court revisits the issue and carves out another exception, or if the Constitution itself is amended, which requires a popular referendum. In other words, this is one of those rare cases where domestic constitutional provisions as authoritatively interpreted by domestic courts are themselves violative of international human rights law; this does not change anything as a matter of international law, but clearly it creates specific political challenges for compliance (cf. the Sejdic and Finci judgment of the Strasbourg Court). See more on this point in this post by Fiona de Londras on the Human Rights in Ireland blog; this post by Mairead Enright has more analysis of the Committee’s decision.
Some brief notices on the UK, the ECHR, the planned repeal of the UK’s Human Rights Act and its replacement with a British Bill of Rights that our non-UK readers in particular might find of interest: almost all is quiet on the Western front, but not quite. From today’s Queen’s Speech in Parliament we could only learn that the Government still plans to scrap the HRA and replace with the British Bill of Rights, but we still have no inkling about what exactly that would entail and when. Basically the whole matter is on hold at least while Britain ponders Brexit, and even then it is likely that the new Bill (after extensive consultations) will not make radical changes to the existing HRA framework, other than for appearances’ sake.
Cambridge’s Mark Elliott has more, as does Rightsinfo. Also at Rightsinfo, Adam Wagner and Rebecca Hacker have an excellent post with a bit of colourful statistics showing just how gentle Strasbourg has been to the UK in recent years – which demonstrates not only how much damage the UK has inflicted on the ECHR system over very little real-world intrusion in its affairs, i.e. mostly for petty domestic politics, but perhaps also how (regrettably? consciously?) responsive Strasbourg can be to some state-administered spanking.
Finally, readers might be interested in a new website/blog launched by the estimable Conor Gearty of the LSE, who has a forthcoming book with OUP on the relationship between Britain and Strasbourg, On Fantasy Island. Conor will blog with excerpts from the book, working his way through its main themes: the fantasies, the facts, and the future.
UK Investigatory Powers Tribunal Rules that Non-UK Residents Have No Right to Privacy under the ECHR
In another major development on the surveillance/privacy front, on Tuesday the UK specialized surveillance court, the Investigatory Powers Tribunal, ruled that persons not present within the United Kingdom are not within the jurisdiction of the UK in the sense of Article 1 of the European Convention on Human Rights, and accordingly do not have any of the rights under that Convention (para. 49 et seq). In other words, a person in say France or the United States subjected to surveillance by GCHQ does not have an ECHR right to privacy vis-a-vis the UK, which accordingly has no Convention claim to answer. This is I think the first time that a British court has expressly dealt with extraterritoriality in the surveillance context. The IPT’s reasoning essentially rests on a Bankovic analogy – if you are in say Serbia and the UK drops a bomb on you, the Strasbourg Court has said that you don’t have the right to life. How could you then have the right to privacy if all the UK did was to simply read your email while you were in Serbia?
I have extensively argued elsewhere why that analogy is wrong (as is Bankovic itself), so I won’t belabour that point further (see here and here). It was entirely predictable that the IPT would adopt this restrictive position, which is perfectly plausible under Strasbourg case law (even if fundamentally mistaken). The IPT was correct in ruling, however, that distinctions as to the Convention’s applicability can’t really be made on the basis of whether the person is present is some other Council of Europe state, or is outside the ECHR’s espace juridique altogether. Anyway, the issue of the Convention’s extraterritorial applicability to mass electronic surveillance abroad is one for Strasbourg to decide and (hopefully) fix, and it will have the opportunity to do so in these cases and others. What the Court will do is of course anyone’s guess, because its decision will inevitable have ripple effects on other scenarios, such as extraterritorial uses of lethal force, e.g. drone strikes.
I have also argued, however, that there is particular scenario in which the applicability of the Convention becomes more attractive (or less dangerous as a matter of policy) – when the surveillance actually takes place within the surveilling state’s territory, even if the affected individual is outside it. Imagine, for example, if the UK police searched my flat in Nottingham while I was visiting family in Serbia – surely I would have Article 8 rights, even though I would not be on UK territory when the search took place. Why then should I not have these rights if an email I send while I am in Serbia is routed through my university server in Nottingham and intercepted by GCHQ there? In both cases the intrusion into privacy happens on the UK’s territory, even if I am outside it. In fact, in its judgment the IPT briefly addresses this scenario, if all too briefly and less than convincingly, although I’m not sure that the point was extensively argued.
In any case, the main paragraphs on the jurisdiction issue are below the fold. The judgment also deals with the very important question of standing/victim status, finding that all but six of the 600+ claimants lacked locus standi even under a very low threshold of showing that they are ‘potentially at risk’ from surveillance measures (applying the European Court’s recent Zakharov judgment, para. 171).
Following up on yesterday’s post on the Eye in the Sky, today the UK Parliament’s Joint Committee on Human Rights published an important new report on the UK’s resort to drone strikes. Most interestingly, the report contains a number of clarifications of the UK’s policy on drone strikes, on the basis of the evidence obtained by the Committee, especially in situations outside active armed conflict. One of the report’s conclusions is that the UK does, in fact, reserve the right to use drones outside armed conflict, and that such strikes would be governed by human rights law rather than the law of war, but that in limited circumstances such strikes could be lawful. The report also calls on the UK Government to respond with further clarifications. As a general matter the report is written clearly and the legal analysis is reasonably nuanced and rigorous.
Last week I had the pleasure of seeing the new movie starring Helen Mirren and the late great Alan Rickman, Eye in the Sky. I was simply floored. Not only is Eye in the Sky an example of film-making at its best, with intelligent pacing and stellar acting throughout, it is also one of the most sophisticated treatments that I have seen of the legal, policy and moral dilemmas that people who make targeting decisions are faced with. It even has words like necessity and proportionality in it, and generally used correctly at that! I could totally envisage a vigorous classroom discussion of the various issues raised after every ten minutes of the movie. I just couldn’t recommend it more for anyone even remotely interested in the legal and moral aspects of targeted killings by drones. *MINOR SPOILERS FOLLOW*