We are happy to report that we will shortly be launching a revamped, visually and technically much-improved version of the blog. The launch will most likely happen on Monday, and readers can expect a couple of hours of downtime.
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Announcement from the Hague Academy
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: The Legal Implications of Global Financial Crises
Period: 19 August-6 September 2013
Venue : Peace Palace, The Hague Netherlands
Directors of Studies:
English-speaking section: Michael WAIBEL, Lecturer at the University of Cambridge
French-speaking section: Geneviève BASTID BURDEAU, Professor at Sorbonne Law School, Paris I University
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 : March 31st 2013 www.hagueacademy.nl
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No Detente on Prisoner Voting and the ECHR in the UK
In the wake of the European Court’s judgment last May in Scoppola v. Italy, in which it more or less gutted its prior cases on prisoner voting rights (see my previous post on prisoner voting and strategic judging for more background), the UK governmental structures have been debating how to respond in their long-drawn out altercation with Strasbourg. Scoppola essentially gave the UK an opening to end the dispute – all it needed to do to comply with the Court re-interpreted judgment in Hirst was to pass some essentially cosmetic changes to its existing legislation that would ‘strike the proper balance’.
The opportunity is not yet completely lost, if cooler heads prevail. The UK government is of course not monolithic, and some parts thereof would rather put the whole thing to rest. But that process is political more than it is legal, and after today’s performance by David Cameron at the PM questions in the House of Commons, a detente between the UK and Strasbourg seems increasingly unlikely.
“No one should be under any doubt – prisoners are not getting the vote under this government,” he told MPs, in answer to a leading question by a Labour MP strongly urging him to continue defying the Court. The whole exchange is available at BBC News, and the short video bears watching, if nothing else then for witnessing the extent of the cheers among the assembled parliamentarians in support of the Prime Minister’s position.
Grand Chamber Judgment in Catan and Others
On Friday the European Court of Human Rights delivered its Grand Chamber judgment in Catan and Others v. Moldova and Russia, nos. 43370/04, 8252/05 and 18454/06, yet another case on the ECHR’s extraterritorial application, dealing in particular with the Convention’s application to the separatist republic of Trandniestria in Moldova (link to judgment). The case is in effect a sequel to the Court’s earlier judgments on Transdniestria in Ilascu and Ivantoc, this time dealing however with a significantly different factual pattern.
The applicants were Moldovans who lived in Transdniestria and who were at the time of lodging the application pupils at three Moldovan-language schools and their parents. They complained under Article 2 of Protocol No. 1 to the Convention and Article 8 of the Convention, taken alone and in conjunction with Article 14 about the closure of their schools and their harassment by the separatist Transdniestrian authorities. The reason for this harassment was basically a policy of Russification by the Transdniestrian authorities whereby schools in the region could only operate in and teach the Moldovan (i.e. Romanian) language as written in the Cyrillic alphabet, rather than the much more commonly used Latin one. In short, the applicants’ education became embroilled in language politics, very similar for instance to those in the Balkans.
What makes this case particularly interesting is the relationship between Article 1 ECHR notion of state jurisdiction, as the threshold for the existence of (all or some) state obligations under the Convention, and the attribution of conduct under the secondary rules of the law of state responsibility. In Ilascu, paras 392-3, the Court held that
[T]he “MRT” [Transdniestria], set up in 1991-92 with the support of the Russian Federation, vested with organs of power and its own administration, remains under the effective authority, or at the very least under the decisive influence, of the Russian Federation, and in any event that it survives by virtue of the military, economic, financial and political support given to it by the Russian Federation. … [T]here is a continuous and uninterrupted link of responsibility on the part of the Russian Federation for the applicants’ fate, as the Russian Federation’s policy of support for the regime and collaboration with it continued beyond 5 May 1998, and after that date the Russian Federation made no attempt to put an end to the applicants’ situation brought about by its agents, and did not act to prevent the violations allegedly committed after 5 May 1998.
Ilascu was notable for several reasons. First, it apparently applied the spatial model of Article 1 jurisdiction as control of an area while lowering the threshold of the needed control (the ‘decisive influence’ bit). Secondly, it completely confused jurisdiction with responsibility; it was utterly unclear from the case whether the Court considered all acts of the MRT to be attributable to Russia, apparently on the basis of a sui generis rule on attribution of conduct that hardly seemed compliant with the ILC’s work on state responsibility or the jurisprudence of the ICJ, or rather whether Russia was held responsible for failing to comply with a positive obligation to prevent human rights violations by non-state actors (the MRT) operating in an area under its jurisdiction. Third, the Court also found that Moldova had positive obligations in the MRT despite having lost control of the territory, a (human rights-friendly) ruling that in my view compromised the purely factual nature of the Art 1 jurisdictional tests for the sake of a rather vague positive obligation which did not amount to much in practice anyway.
Here comes Catan, which provided the Court with the opportunity to revisit some of these points. What distinguishes Catan and Ilascu is primarily the lapse in time with regard to the facts of the two cases, during which Russia’s control over Transdniestria arguably decreased. Moreover, unlike in Ilascu Russian authorities had no involvement in the harassment of the applicants and the interference with their right to education. The Court thus had to build upon Ilascu, and that it did, producing a rather mixed (if again human rights-friendly) outcome. In brief, it found that both Moldova and Russia retained jurisdiction over Transdniestria; that Moldova this time did comply with its positive obligations; but that Russia was to be held reponsible for a violation of Art 2 of Protocol 1, and was as a consequence liable for significant damages.
GoJIL: Call for Papers
The editors of the Goettingen Journal of International Law send the following announcement:
Vol. 5, Issue No. 1 of the Goettingen Journal of International Law will include a focus on the law and politics of indigenous peoples in international law.
Indigenous peoples received increasing public and scholarly attention over the last decades. It has been a unique journey from the colonial history to the beginning of their political presence in the United Nations since the 1970s to the UN Declaration on the Rights of Indigenous Peoples in 2007. The UN’s International Year for the World’s Indigenous Peoples in 1993 as well as the following decades of the world’s indigenous peoples from 1995 to 2004 and 2006 to 2015 prove the ongoing need to attend to indigenous peoples’ interests. Today, discourses of indigenous peoples rights and their claim for self-determination are found beyond International Human Rights law: topics such as intellectual property rights, control over the exploitation of natural resources, the protection of traditional knowledge and traditional cultural expressions are on the agenda. Underlying all is the constant debate about a definition and the implementation of indigenous peoples’ rights beyond the Americas, particularly in Asia and Africa. In order to shine a light on the legal and political problems indigenous peoples are facing, we call for authors to submit papers on the topic.
The submission deadline is 1 March 2013. For more information contact us at info {at} gojil(.)eu.
News from ESIL
Some very brief (and a bit belated) news from the 5th Biennial Conference of the European Society of International Law in Valencia, which went splendidly – many thanks to Mariano Aznar and Jorge Cardona for ensuring that everything ran so smoothly.
First, the Society’s next major event will be the 5th Research Forum in Amsterdam on 23-25 May 2013, with the main theme being international law as a profession. The Forum website is live, as is the call for papers and panel proposals – the deadline for submission is 15 November.
Second, EJIL:Talk’s permanent contributor Michael Waibel was awarded the prestigious ESIL Prize for his book Sovereign Defaults before International Courts and Tribunals, published in 2011 by Cambridge University Press. The jury members, Eyal Benvenisti, Jutta Brunnee and Francesco Francioni, were unanimous in their selection of the prize-winner: “A remarkable book – to our knowledge, it is the first comprehensive and systematic treatment of this subject. The book combines historical analysis with careful research of case law and other practice. The result is an impressive and original treatment of a subject that is of the utmost relevance for the present state of the international economic system.” Congrats Michael!
Third, at its post-conference meeting the ESIL Executive Board elected Laurence Boisson de Chazournes as the new President of the Society. Many congratulations also to Laurence, who succeeds the indefatigable Anne Peters, and best of luck for her term.
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Kevin Heller’s Chevron Subpoena
Kevin tells the story here. Remarkably, the lawyers representing Chevron in its long-standing series of disputes with Ecuador issued a subpoena for information from Kevin’s Gmail account. Their only apparent reason for doing so was Kevin’s commentary on the case at Opinio Juris. Due to the ACLU’s intervention on Kevin’s behalf the subpoena request was dropped, but it is quite remarkable to see how the (overzealous?) lawyers for a party to a dispute used judicial process to such effect and did so without providing any justification, thus creating the impression that they did so in order to suppress academic commentary adverse to the interests of their client.
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European Court Decides Nada v. Switzerland
As announced, the Grand Chamber’s judgment in Nada v. Switzerland, no. 10593/08 is available here. I can’t blog about it more extensively as I’m in Valencia right now for the ESIL conference, but the gist of the judgment is as a follows:
1) The applicant wins, on relatively narrow grounds under Article 8, and more broadly under Article 13 of the Convention. When examining Article 8, the Court engages in its assessment of the relationship between the ECHR and state obligations under the UN Charter, specifically UNSC resolution, and the effect of the supremacy clause in Article 103 of the Charter.
2) In that regard, the Court quite correctly finds that while the applicant’s listing by the Sanctions Committee of the UNSC was attributable to the UN, the implementation of the sanctions by Switzerland was attributable to Swtizerland itself (para. 121). The Court then finds (para. 122) that:
The measures in issue were therefore taken in the exercise by Switzerland of its “jurisdiction” within the meaning of Article 1 of the Convention. The impugned acts and omissions are thus capable of engaging the respondent State’s responsibility under the Convention. It also follows that the Court has jurisdiction ratione personae to entertain the present application.
Note that the Court here skirts the non-obvious question of the ECHR’s extraterritorial application (a point that as far as I am aware was not argued by the respondent government). That the implementation of the travel ban imposed against the applicant and Switzerland’s decision to deny him access to Swiss territory in order to leave the 1.6 sq km Italian enclave of Campione were undoubtedly attributable to Switzerland does not ipso facto entail that the applicant had rights vis-a-vis Switzerland under the Convention; the former is an issue of attribution of conduct, the latter of the threshold criterion for the existence of a legal obligation. The Court does not explain under what theory exactly the applicant had rights against Switzerland even though he does not live in Switzerland proper, nor how its position is to be squared with its prior case law on the matter (cf. Bankovic in particular, Al-Skeini notwithstanding).
Nada v. Switzerland Judgment Forthcoming
The Grand Chamber of the European Court of Human Rights will deliver its judgment in the case of Nada v. Switzerland on 12 September. The case concerns the applicant being prohibited from leaving an Italian enclave in Switzerland due to Swiss implementation of UN Security Council anti-terrorism sanctions, including a travel ban. For our previous coverage and a detailed preview of the issues arising in the case, see this post. More commentary will follow.
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Breaking: Ecuador Grants Asylum to Julian Assange
BBC report here. Immediately below is a timely post by Roger O’Keefe on an alleged ‘threat’ by UK authorities to enter the Ecuadorian embassy in London. More commentary will follow – stay tuned.
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