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Home Articles posted by Marko Milanovic

Running in Circles: A Comment on Bjorge’s Evolutionary Interpretation of Treaties

Published on December 18, 2014        Author: 

t 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.

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Discussion of Eirik Bjorge’s The Evolutionary Interpretation of Treaties

Published on December 15, 2014        Author: 

The Evolutionary Interpretation of TreatiesThis 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.

 

Jurisdiction, Attribution and Responsibility in Jaloud

Published on December 11, 2014        Author: 

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.

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Inaugural Vojin Dimitrijevic Memorial Lecture

Published on December 4, 2014        Author: 

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.

Filed under: Announcements and Events
 

The Bottom Line of Jaloud

Published on November 26, 2014        Author: 

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.

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Discussion of Russell Buchan’s International Law and the Construction of the Liberal Peace

Published on November 13, 2014        Author: 

http://www.hartpub.co.uk/coverimages/9781849462440.jpgThis week and next we will be hosting a discussion of Russell Buchan’s book International Law and the Construction of the Liberal Peacerecently 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.

 

The Naked Rambler in the European Court

Published on October 30, 2014        Author: 

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).

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A Few Thoughts on Hassan v. United Kingdom

Published on October 22, 2014        Author: 

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.

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UN Security Council Adopts Resolution 2178 on Foreign Terrorist Fighters

Published on September 24, 2014        Author: 

The Security Council, in a special sitting in which most members were represented by their heads of state or government and chaired by President Obama, has just unanimously adopted resolution 2178 (2014) on foreign terrorist fighters. Full text available here and here. The resolution is one of the most important quasi-legislative efforts of the Council since resolution 1373 (2001). Adopted under Chapter VII, it requires states to take a series of measures to prevent the movement and recruitment of foreign terrorist fighters. Some of the key operative paragraphs include:

5. Decides that Member States shall, consistent with international human rights law, international refugee law, and international humanitarian law, prevent and suppress the recruiting, organizing, transporting or equipping of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, and the financing of their travel and of their activities;

6. Recalls its decision, in resolution 1373 (2001), that all Member States shall ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice, and decides that all States shall ensure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense:

a) their nationals who travel or attempt to travel to a State other than their States of residence or nationality, and other individuals who travel or attempt to travel from their territories to a State other than their States of residence or nationality, for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training;

b) the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to finance the travel of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training; and,

c) the wilful organization, or other facilitation, including acts of recruitment, by their nationals or in their territories, of the travel of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training;

7. Expresses its strong determination to consider listing pursuant to resolution 2161 (2014) individuals, groups, undertakings and entities associated with Al-Qaida who are financing, arming, planning, or recruiting for them, or otherwise supporting their acts or activities, including through information and communications technologies, such as the internet, social media, or any other means;

8. Decides that, without prejudice to entry or transit necessary in the furtherance of a judicial process, including in furtherance of such a process related to arrest or detention of a foreign terrorist fighter, Member States shall prevent the entry into or transit through their territories of any individual about whom that State has credible information that provides reasonable grounds to believe that he or she is seeking entry into or transit through their territory for the purpose of participating in the acts described in paragraph 6, including any acts or activities indicating that an individual, group, undertaking or entity is associated with Al-Qaida, as set out in paragraph 2 of resolution 2161 (2014), provided that nothing in this paragraph shall oblige any State to deny entry or require the departure from its territories of its own nationals or permanent residents;

The measures are far-reaching. Martin Scheinin has an important post on Just Security on the potential for abuse inherent in some of the provisions of the resolution, especially since it finds that all forms of terrorism (and not just international terrorism, however exactly defined) are a threat to international peace and security and subject to the measures set out in the resolution. It is entirely possible that some governments will use this resolution to justify repressive measures. We can certainly expect a wave of domestic legislation which may go even further beyond the requirements of the resolution. On the other hand, many of the resolution’s paragraphs expressly invoke international human rights law or other rules of international law, as did many of the delegations in the Council in their statements, including President Obama. This at least will serve to blunt overly extravagant arguments relying on the primacy clause in Article 103 of the UN Charter (cf. para. 102 of the European Court of Human Rights’ Al-Jedda judgment). But there can be no doubt that we will be dealing with this resolution for many years to come.

 

Human Rights Council Panel Discussion on Privacy in the Digital Age

Published on September 15, 2014        Author: 

Last Friday I had the privilege of moderating the panel discussion on the right to privacy in the digital age at the 27th regular session of the Human Rights Council. The video of the panel discussion is available here, and a press release summarizing some of the statements here. OHCHR will be producing a more detailed report on the discussion in due course.

It was a very interesting event, which benefited from four great panelists – Catalina Botero, the special rapporteur on the freedom of expression in the Inter-American system; Sarah Cleveland, professor at Columbia Law School; Yves Nissim, deputy chief of corporate social responsibility at Orange Telecom; and Carly Nyst, legal director of Privacy International. The discussion was lively and interactive, and also benefited from many comments from the floor by states and various NGOs. (Incidentally Dapo will also be moderating a HRC panel discussion next week on drones and counter-terrorism, also with an excellent cast of participants).

There was broad endorsement, from states as well as from the panelists, of the High Commissioner’s important report on the right to privacy in the digital age, with some disagreement on specific issues. The comments from the floor were quite varied in terms of topic, but two big themes were the application of the ICCPR to extraterritorial surveillance (on which see more here), and the quantity and quality of oversight and accountability mechanisms. The panelists and NGOs also called for the establishment of a new special rapporteur on the right to privacy.

The right to privacy in the digital age and the High Commissioner’s report will next be considered by the UN General Assembly at its forthcoming session next month.

 
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