Just a quick reminder to our readers that the deadline for the submission of abstracts under the call for papers for this year’s conference of the European Society of International Law in Valencia is 20 January. The conference homepage is here.

Just before the holidays the European Court of Human Rights rendered two important decisions in cases against the Russian Federation. First, a Chamber declared admissible the second interstate application filed by Georgia against Russia (Georgia v. Russia No. 2, App. No. 38263/08, available here). The case arises out of the 2008 armed conflict between Georgia and Russia; in the words of the Court, ‘The applicant Government submitted that, in the course of indiscriminate and disproportionate attacks by Russian forces and/or by the separatist forces under their control, hundreds of civilians were injured, killed, detained or went missing, thousands of civilians had their property and homes destroyed and over 300,000 people were forced to leave Abkhazia and South Ossetia. In their submission, those consequences and the subsequent lack of any investigation engaged the Russian Federation’s responsibility under Articles 2, 3, 5, 8 and 13 of the Convention, Articles 1 and 2 of Protocol No. 1 to the Convention and Article 2 of Protocol No. 4 to the Convention.’

The cases raises important questions regarding the extraterritorial application of the ECHR, attribution of conduct by the separatist entities in Georgia to the Russian Federation, and the interplay between the Convention and international humanitarian law. Rather than deal with these matters in its admissibility decision, the Court quite rightly  decided to deal with them on the merits (see esp. paras. 63-68, 71-75 of the decision). Importantly, the Court noted the lack of any derogation by the two states in the context of the armed conflict. This is bound to be a big one – and it seems likely that the Chamber will relinquish its jurisdiction to the Grand Chamber of the Court. (Another big case on the extraterritorial application of the ECHR is coming up for hearing before the Grand Chamber at the end of this month – Catan and Others v. Moldova and Russia  (nos.  43370/04, 8252/05 and 18454/06). Dealing with human rights violations by the separatist Transnistrian authorities in Moldova, this is a sequel to the Ilascu case decided by the Court a few years back.)

Secon, there was the unanimous Chamber judgment in the Dubrovka theatre case – Finogenov and others v. Russia, nos. 18299/03 and 27311/03, press release, judgment). The case concerned the siege of the Dubrovka theatre by Chechen separatists in October 2002, when over 40 heavily armed terrorists equiped with explosives held almost a thousand people hostage in the theatre. The siege was (in)famously ended when the Russian authorties used an opiate gas to knock the terrorists out before storming the place, with the gas causing the deaths of 125 hostages. The families of some of these hostages lodged the application with the Court, claiming a violation of Article 2 ECHR by Russia. The Court held that there had been no violation of the Convention regarding the use of force and gas against the terrorists. It did, however, find that the rescue operation had not been well planned or implemented.

The case is very fact-specific, but I think I can say with some certainty that this will be a new leading case in the Article 2 pantheon, up there with McCann. It is notable for several developments. For example, despite Russia’s completely unsatisfactory cooperation with the Court in establishing the factual record (e.g. the documents of the Russian team that led the operation were all destroyed; Russia failed to answer the Court’s specific factual questions; Russia never disclosed exactly which gas it used, and so forth), the Court was prepared to be extremely deferential and flexible on the factual issues. Indeed, the Court almost entered an ‘IHL-mode’, quite explicitly deciding not to second-guess the Russian autorities’ decision to use force generally in order to subdue the terrorists, and their specific decision to use the opiate gas. The Court found a violation only because the medical rescue operation that followed the storming was manifestly poorly planned, with the authorities for example not even informing the doctors beforehand of the use of the gas. Some choice paragraphs are reproduced below the fold. Most importantly, the fact that the Court quite explicitly based its deferential approach on the Chechen Isayeva case dealing with the indiscriminate use of force shows much promise in providing needed flexibility in other factually complex cases that transcend conditions of normalcy, as e.g. in Georgia v. Russia. The Court awarded more than a million euros in compensation, and it is likely that Russia will appeal to the Grand Chamber – we’ll see what happens.

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All of us at EJIL: Talk! wish our readers and their families a merry Christmas and a happy New Year – hopefully the new year will prove to be just a tad less exciting than the old.

Sadly, the great polemicist died yesterday from cancer. While he had a strong opinion about everything, including issues of international law, and thus not infrequently came across as a dilettante, he was still an unparalled debater and public speaker with a superb sense of humor. He was also utterly fearless – think only of his Missionary Position book challenging the myth of mother Theresa. His last article in Vanity Fair, written only a few weeks before his passing, is above all a very human look at the imminent prospect of death. And he’s left us with gems like these:

UPDATE: And in the humor department the On the Limits of Self-Improvement series (here, here and here) can hardly be topped.

Programme : Centre for Studies and Research in International Law and International Relations

The Centre is designed to bring together young international lawyers of a high standard from all over the world, to undertake original research on a common general theme which is determined each year by the Academy. The research work undertaken at the Centre may be included in a collective work published by the Academy.

There are between 20 and 24 participants, half in the English-speaking section and half in the French-speaking section.

Organisation : The Hague Academy of International Law

Topic: Criminal Acts at Sea

Period: 20 August – 7 September, 2012

Venue : Peace Palace, The Hague Netherlands

Directors of Studies:

French-speaking section: Dr. Kimberley N. TRAPP, Lecturer at Newnham College, University of Cambridge

English-speaking section: Dr. Douglas GUILFOYLE, Lecturer at University College London

Fee : free of charge, each participant receives a daily allowance of 35 euros according to the length of the stay and the reimbursement of half of the travel expenses, up to a maximum of 910 euros.

Application : online registration form, deadline to register : April 1^st 2012

www.hagueacademy.nl

My thanks go out to Yuval Shany, Vaughan Lowe and Irini Papanicolopulu for their comments on my book. It is truly a pleasure and a privilege to engage them in this discussion. Let me begin by responding to some of the points made by Vaughan. I fully agree that the rights set out in human rights treaties could perhaps be reconceptualised as pledges within the framework given by Lea Brilmayer in her BYBIL article; they are not simply reciprocal bargains between states. And I certainly agree that the treaties could – like domestic constitutions – be seen as limiting the powers of governments on the basis of fundamental principles. But that reconceptualization does not necessarily entail that these principles are territorially unbound. After all, issues that mirror the extraterritorial application of human rights treaties have also arisen with respect to the extraterritorial application of domestic bills of rights. In the final analysis, the scope of all these instruments depends on underlying ideological or value judgments – e.g. should citizenship matter in determining whether a state could take an individual’s life or deprive him of liberty on a preventive basis, a debate of great relevance in the United States today.

Turning now to Yuval’s comments, he and I are in basic agreement as to the causes of the confusion and conflicts in the case law, founded as they are in the underlying tension between universality and effectiveness. But even if he agrees with the diagnosis, Yuval takes issue with my prescription – the model with distinguishes between positive and negative obligations, and applies a territorial control requirement to the former but not to the latter, which it treats as territorially unlimited. Yuval argues – quite persuasively – that my model would also lead to some arbitrary results, as in the Ecuador v. Colombia example, where Colombia would under my model not have the duty to ensure the human rights of the people of Ecuador endangered by transboundary harm emanating from the activities of private persons operating from Colombian territory. He opts instead for a ‘a single concept of jurisdiction, applicable both to negative and positive obligations, which centers on the strength of the governmental power that is being applied or can be applied vis-à-vis the individuals in question’, a flexible, functional criterion which would in essence mean that the state would have a particular obligation as soon as it gained the ability to comply with it or violate it. (Note, of course, how in the Colombia example Colombia may have some power over the private perpetrators of human rights violations, but has not exerted any power over their victims – and it’s the victims who have to be subject to its jurisdiction).

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I am very grateful for the opportunity to discuss my book on EJIL: Talk! and Opinio Juris, as am I grateful to the commentators on both blogs for taking the time to read and discuss it. In this introductory post I’ll try to outline the book’s main arguments and themes and my approach generally in analysing a very complex topic.

The book is divided into five chapters. The first, introductory chapter sets out the scope and purpose of the whole study. It defines the notion of the extraterritorial application of human rights treaties, explains that the law of treaties sets no general rules on extraterritorial application, and outlines the basic normative framework of the human rights treaties which are the object of the study, looking in particular at the various types of state jurisdiction clauses that one finds in these treaties, and their relationship with other relevant provisions, such as the colonial clauses. Whether a human rights treaty protects a particular individual in an extraterritorial context is legally a matter of treaty interpretation, and this chapter sets the stage for this interpretative exercise. My main focus is on treaties protecting civil and political rights, for the sole reason that there is much more case law and other material to work with in respect of these treaties than with those protecting socio-economic rights. That said, the book proceeds from the assumption that there is something to be gained from focusing on problems common to all or most human rights treaties, and views these treaties as a whole. Hence, it is generally structured thematically, issue by issue, not chronologically or treaty by treaty.

Of all the treaties, I give most attention to the European Convention on Human Rights, for two reasons. First, the ECHR system is by far the strongest of all human rights regimes (if far from perfect) in its ability to effectively secure compliance and have a direct impact on state policy. The stakes are highest in Strasbourg, because it will be listened to. Second, it is precisely because the stakes are highest in Strasbourg that the jurisprudence of the European Court of Human Rights on extraterritorial application is the richest and the most developed. At the same time, it is the most problematic, suffering from rampant casuistry and conceptual chaos. It is a jurisprudence of (at times quite unprincipled) compromise, caused mostly be the Court’s understandable desire to avoid the merits of legally and politically extremely difficult cases by relying on the preliminary issue of extraterritorial application. At the same time, the jurisprudence of the European Court has the most to teach us on questions of both law and policy that are relevant for all human rights treaties.

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The BBC is reporting that the International Criminal Court has issued an arrest warrant for Laurent Gbagbo, the former president of the Cote d’Ivoire, and indeed that he is already on his way to the Hague. Gbagbo will be the first former head of state to sit in the ICC’s dock.

I was just reading today this report in the New York Review of Books on the escalating political situation in Jordan when I noticed a remarkable point which I hadn’t yet seen reported in the international blawgosphere. It appears that last month King Abdullah of Jordan appointed Judge Awn Al-Khasawneh of the International Court of Justice as Jordan’s new Prime Minister. Judge Al-Khasawneh has of course had a distinguished career both within Jordan and internationally and has accepted his new appointment.

What struck me – if I am not mistaken – is that it seems that this is the first time a serving ICJ judge (and at that one who was re-elected only a few years ago) was appointed as a head of government.  Former ICJ judges have of course held high political office even after leaving the Court, e.g. in recent years former president Bedjaoui has for a time been the foreign minister of Algeria, while judge Elaraby has briefly been the foreign minister of Egypt after the fall of Mubarak and is now the Secretary-General of the Arab League. In any case, congratulations are due to Judge Al-Khasawneh.

On a different note, it’s a bit odd that the ICJ’s website makes no mention of this development, even though I imagine Judge Al-Khasawneh already tendered his resignation as Art. 16 of the ICJ Statute would seem to require – unless the Court devised some other arrangement under the second paragraph of that article. This would mean that another election would soon have to be held, in addition to the contested remaining seat now held by Judge Koroma, on which Dapo reported earlier.

Christian Tams writes that the University of Glasgow School of Law is advertizing a lectureship in international law – readers can find the details here. Glasgow is not only an excellent school, but is particularly strong in international law; potential candidates are encouraged to apply.