Yesterday the Guardian published a top secret policy in place for the UK intelligence service since 2002 in several versions, dealing with their obtaining intelligence from detainees in the custody of foreign services who may be subject to mistreatment. The document is entitled ‘Agency Policy on Liason with Overseas Security and Intelligence Services in Relation to Detainees Who May Be Subject to Mistreatment,’ and is available with a few redactions here. The policy is sure to be prove controversial; as readers are aware, an inquiry is underway in the UK regarding complicity of UK services in overseas torture, while a judicial review case has recently been brought before the High Court (see Dapo’s recent post). The policy has been replacedy a more anodyne and public version in 2010 by the new coalition government.

Note that there is at least one more prior policy that is yet to be disclosed, which covered circumstances in which UK agents were ‘directly involved’ in the questioning of a detainee in the custody of a foreign intelligence service (see para. 2 of this policy). That other document may prove to be at least as interesting.

One may find a number of things morally objectionable upon reading the policy – and it’s precisely these parts of the document that caught the eyes of the press, e.g. the explicit reference to negative publicity for the UK as a factor in a balancing exercise in deciding whether or not to give permission for UK agents to provide information to the overseas agency even when there is a risk of mistreatment. But what I found striking about the old policy was how legalistic it was, i.e. how legal advice was used to put limits (or not) on UK participation in overseas interrogation. The new 2010 policy is very different – it seemingly quite deliberately omits any substantial legal discussion.

What is even more striking is how the policy concludes that human rights law as such does not apply to the issues at hand, although it then proceeds to import some human rights standards in the rules it sets out. Crucially, as Dapo pointed out in his earlier post and as I mentioned in a post from a couple of years ago, the key question here is the extraterritorial application of human rights treaties. Do, say, detainees in Pakistani custody questioned by a Pakistani intelligence officer who are being fed questions or information by UK agents have rights vis-a-vis the UK under the human rights treaties to which it is a party, or is it only Pakistan which has obligations in this situation?

In para. 21, the policy answers that question in the negative:

Under section 6 of the Human Rights Act 1998 it is unlawful for a public authority to commit torture , or to inflict inhuman or degrading treatment, as this would be incompatible with a Convention right [Article 3 ECHR]. However, in order for the Act to apply to a detainee held overseas, the UK would need to have “effective control” of the area in which the detainee is located, as the primary jurisdiction of the Act is territorial. The Act is therefore unlikely to apply in situations covered by this policy.

 

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Today Anne Orford of the University of Melbourne Law School, JHH Weiler of the NYU School of Law, and Dino Kritsiotis of the University of Nottingham School of Law launched the Annual Junior Faculty Forum for International Law. The Forum is designed to assist junior faculty, i.e. those within the first six years of their academic careers, with their research by staging an annual competition in which six to nine individuals will be selected and asked to make presentations to the Forum in a given year: these presentations will then be paired with senior international legal scholars, who will comment on each of the presentations given to the Forum, so that the papers are eventually worked up and prepared for publication. The Forum will be an annual event on the international law calendar, and the inaugural Forum will be hosted in New York City by the Jean Monnet Center for International and Regional Economic Law & Justice; it will occur in May 2012.

Further particulars of the process are now available on www.annualjuniorfacultyforumIL.org . Selected presentations from the inaugural forum will be published in a special issue of the EJIL.

European University Institute, PhD Training School

A three-day doctoral training school shall be held at the European University Institute, Florence, on October 20-22, 2011, in context of COST Action 1003.

The topic of this training school will be “the vices and virtues of international constitutionalism”, and submissions are invited from PhD students working in areas related to this topic who are interested in debating the topic with fellow PhD students and with internationally recognised experts in the field of interntional constitutionalism. .

The doctoral training school is intended to bring PhD students from different European countries together on topics related to COST Action 1003, International Law between Constitutionalisation and Fragmentation: the role of law in the post-national constellation. (to be found at the Action website: http://www.il-cf.eu/ ).  Support can be offered to PhD students from participating countries. Currently the following countries participate in the Action: Austria, Belgium, Czech Republic, Denmark, Finland, France, Germany, Greece, Israel, the Netherlands, Norway, Poland, Portugal, Spain, United Kingdom, Former Yugoslav Republic of Macedonia, Hungary, Ireland, Sweden and the European Institute in Florence. Serbia, South Africa and Australia are currently applying for partnership.

Topic

Two recent tendencies have shaped recent discourses on international constitutionalism. On one side, the expansion of international law to areas never touched before has put into question the legitimacy and ability of international law in managing subjects that belonged previously to states. On the other side, international law is fragmenting into functionally separated regimes, challenging the unity and coherence of international law. (more…)

HUDOC service has been intermittent this morning, but the judgments are now available – Al-Skeini v. UK, Al-Jedda v. UK – and they were well worth the wait. For more background, see my case preview and my thoughts on the alleged ‘embassy exception.’ In brief, the UK government lost quite badly, while the Grand Chamber has effectively overruled the House of Lords on a number of points; the applicants have every reason to be pleased. In Al-Skeini, the Court held that (1) all of the applicants were within the UK’s Art. 1 ECHR jurisdiction and (2) that the UK has not held an Art. 2-compliant investigation in five of the cases, all but that of Baha Mousa where there is an ongoing public inquiry. In Al-Jedda, the Court held that (1) Mr. Al-Jedda’s detention was attributable to and within the jurisdiction of the UK, and (2) as the UK had no obligation under a UN Security Council resolution to detain preventively and without judicial review, Art. 103 of the UN Charter was not even at play, and that therefore Mr. Al-Jedda was detained unlawfully under Art. 5(1) ECHR. In both cases the Court awarded substantial damages and costs. The financial and policy implications of the two cases are immense.

The most important bits are of course in the Court’s reasoning, as we will now see. Obviously, this analysis is relatively provisional and on short notice. However, it is clear that the Court has articulated some very important principles and that these will be leading cases on the various issues for many years to come. Importantly for precedential value, the Court was unanimous or near-unanimous in both cases . Whether the Court’s reasoning is persuasive on all counts will undoubtedly be a matter of controversy – I at least am certainly not persuaded on some of the counts, though I very much like the human rights-friendly end results. Without further ado, let us now move to the good, the bad, and the ugly in the two judgments.

(Warning! longish post).

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The European Court has announced today that on Thursday next week, 7 July, it will hand down its long awaited Grand Chamber judgments in Al-Skeini and Al-Jedda, both against the United Kingdom. See more in Waiting for the Als, and in my case preview. We will of course strive to have quick commentary on the judgments once they come out – let’s hope they were worth the wait!

This week will mark a full year since the Grand Chamber of the European Court of Human Rights held oral hearings in Al-Skeini and Al-Jedda (see my preview here) – and still no judgment(s). I’m pretty sure that’s some kind of record. And so we wait…

In all fairness to the Court, the probable reason for the delay is that other cases have popped up at the same time, cases which overlap to a significant extent with Al-Skeini and Al-Jedda, and which therefore call for a coherent and systematic solution. Think for example of Nada v. Switzerland, heard only a few months ago, and like Al-Jedda dealing with Security Council sanctions. Also, later this month the GC will be holding hearings in Hirsi v. Italy, in which at issue is the extraterritorial application of the ECHR to illegal immigrants intercepted on the high seas by Italian warships (cf. Medvedyev v. France). It’s no wonder the Court is taking its time, and of course there may be quite a bit of disagreement among the judges as to how to deal with these very sensitive matters.

And so, while we’re waiting for the Als, I thought I might engage in some shameless self-promotion (and when have I ever missed an opportunity to do so?). My book on the Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy is about to come out with OUP, and to good bookstores near you. As it would only be fair for my bank account to soon start overflowing with royalties, I thought I might entice potential readers with the following extract from pp. 154-160 of the book, dealing with the so-called ‘embassy exception’ for the extraterritorial application of the ECHR.

Recall that the House of Lords in Al-Skeini held that the ECHR cannot apply to five of the applicants killed in Basra by UK troops on patrol, as Iraq was outside the ECHR’s espace juridique. However, the ECHR did apply to the sixth applicant, Baha Mousa, who was killed by UK soldiers while in detention, as a UK military prison in Iraq supposedly had a special status in international law, a status analogous to an embassy. We’ll (soon?) see what the European Court does with this in Al-Skeini, but here are some thoughts of my own:

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I am just on my way back from the 4th Research Forum of the European Society of International Law in Tallinn, Estonia. Many thanks are due to Lauri Malksoo and his team for organizing an excellent event. Some news from ESIL follow below.

The ESIL-ASIL-EJIL-HiiL symposium “Global Public Goods and the Plurality of Legal Orders” will be held at the European University Institute (EUI), Florence, on 24 -25 October 2011. The symposium is arranged by the Academy of European Law (EUI), the European Society of International Law, the American Society of International Law, the European Journal of International Law, and the HiiL project on Private Transnational Regulatory Regimes. Further details will be available on the ESIL website shortly.

The 5th ESIL Biennial Conference “Regionalism and International Law” will be held in Valencia, Spain, on 6-8 September 2012.

The 5th ESIL Research Forum “International Law as Profession’’ will be held in Amsterdam, The Netherlands, in May 2013. The Society particularly wishes to encourage younger scholars to engage in research, particularly empirical research, about the various aspects of the international legal profession and legal professionals.

Finally, ESIL would like to invite its members to register for the MILE 2.0 project, the first professional directory specifically dedicated to international law professionals. The database is fed by ESIL members themselves, who create and manage their profile online. All profiles can then be browsed or searched through a powerful search engine.

Antonios Tzanakopoulos has written a powerful book in Disobeying the Security Council. It is a rich – at times very rich – piece of scholarship, covering a range of complex issues. The book makes two important arguments (and at that ones I agree with!). First (a point of course already made before), that it is states themselves which are the ultimate judges of the legality of the Security Council’s decisions. In a decentralized system lacking any compulsory and systematic means of judicial control and dispute resolution, self-help may turn out to be the only game in town. It is by choosing to openly disobey (or more frequently, very narrowly interpret) decisions of the Security Council that they regard as unlawful that states act as a check against the Security Council abusing its powers. Second (and relatedly), that much of the scholarly discussion regarding the legality of Security Council action tends to adopt a domestic public law mindset, whether quite consciously or at times uncritically, a mindset which is inappropriate when some of the underpinnings of domestic public law, such as compulsory adjudication, are lacking

In order to advance these arguments, and to offer a solution that would both provide a meaningful check on the UNSC’s powers and yet not suffer from the perils of domestic law-thinking, Antonios makes several crucial conceptual and doctrinal moves. It is with some of these that I have to part ways. Most importantly, he changes the focus from the validity of the decisions of the UNSC to the UN’s responsibility for illegal UNSC decisions as internationally wrongful acts, measured against the law binding on the organization. As always in the decentralized international system, states have the right of auto-determination, i.e. of deciding for themselves that the organization is responsible, and then have the right to take countermeasures against it, including disobeying its decisions and refusing to pay their allocated dues to it. In doing so, of course, states as always assume the risk that they might be wrong in their own assessment, and if they are they must suffer the consequences.

In essence, Antonios’ approach is very much one of classical international law, relying on established legal institutions and methods of this decentralized system such as responsibility and countermeasures, and avoiding the pitfalls of constitutionalization or domestic law-thinking generally. This critical effort is certainly a laudable one – but whether it ultimately succeeds is not as clear.

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Jacob Cogan has just let us know that he is restarting his blog, the International Law Reporter, after a three month break. Those are welcome news! ILR has been an invaluable resource, and many thanks are due to Jacob for his effort, as well as to Don Anton who has recently started his weekly international law digest.

On a different note, the Disobeying the Security Council book discussion will start tomorrow, due to the volume of posts today.