Last week in Canada, with federal MPs returning to Parliament amidst the continuation of countrywide protests by indigenous peoples, an opposition MP introduced a private member’s bill (Bill C-469) to require the Canadian government to ensure that all federal laws are consistent with the United Nations Declaration on the Rights of Indigenous Peoples (A/RES/61/295). I’ll state clearly at the outset that this isn’t the first such proposal of its kind, with two other private member’s bills with the same general intent of giving domestic legal effect to the Declaration having been introduced in June 2008 (Bill C-569) and February 2009 (Bill C-328), later reinstated in March 2010. But the discussion that has ensued with respect to enacting domestic legislation to give a non-legally binding declaratory text status and pull within domestic law raises interesting questions for our understanding of the sources of international legal obligation (versus the sources of aspiration and political commitment), as well as concerns about the impact of UN efforts that raise unmet expectations. On the other hand, this may simply strike readers in other jurisdictions as very strange, at least in those jurisdictions where there is no chance that a domestic court would ever rely upon, or even cite, a General Assembly resolution text.
For those who teach international criminal law, the topic of mutual legal assistance typically receives only brief mention given the myriad of other topics vying for class attention, including extradition. However, an interesting case study is brewing in Boston, which raises broader issues for class discussion concerning accountability and the fight against impunity, post-conflict reconciliation, and how we “put history on record” as well as issues regarding how we who work within universities operate. For common law lawyers, it also provokes a dusting off of one’s knowledge of the old Wigmore categories for invoking privilege against disclosure.
The case of interest is that concerning Boston College, a private Jesuit university in Boston, Massachusetts, which we now know holds within its Burns Library certain transcripts and recordings of interviews conducted with former paramilitaries about their activities during the decades-long conflict in Northern Ireland known as the Troubles. Following a judgment of the United States Court of Appeals for the First Circuit, released on 6 July 2012, some of these records were scheduled for production this month, but it appears that appeals are being pursued.
The request for the disclosure of the interviews comes from the Police Service of Northern Ireland (PSNI) via a mutual legal assistance request made pursuant to the mutual legal assistance treaty (or “MLAT”) that exists between the United States and the United Kingdom that provides for cooperation in the investigation and prosecution of crime. The assistance that can be provided under the US-UK MLAT includes the provision of “documents, records and evidence.” The US-UK MLAT was signed in 1994 and entered into force in 1996, with modifications by the US-EU MLAT in 2003. And for those interested in the national application of international law, both MLATs are considered self-executing treaties under US law, and thus part of US law.
The Bolivarian Republic of Venezuela has given notice of its intention to withdraw in a year’s time from the leading regional human rights treaty in the Americas, with the Secretary-General of the Organization of American States (OAS) having confirmed receipt of the notice of denunciation here: http://www.oas.org/en/media_center/press_release.asp?sCodigo=E-307/12. (Rumours back in July had suggested that Venezuela was considering withdrawal.) The Inter-American Commission on Human Rights has also issued a press release announcing that Venezuela is withdrawing from the American Convention on Human Rights, with the denunciation to take effect in September 2013. The IACHR press release can be found here: http://www.oas.org/en/iachr/media_center/PReleases/2012/117.asp
The American Convention on Human Rights (also known as the Pact of San José, Costa Rica) was adopted in 1969 and entered into force in 1978. It is a key regional human rights instrument for the protection of civil and political rights within the Western Hemisphere (with the Convention working alongside the 1948 American Declaration of the Rights and Duties of Man which is relied upon for OAS states that are not Convention parties). Venezuela has been a party to the Convention since ratification in 1977. Venezuela has also recognized the competence of the Inter-American Court of Human Rights since 1981, with Venezuela’s record before the court found here: http://www.corteidh.or.cr/pais.cfm?id_Pais=13.
A broken (but soon to be fixed?) link to the text of Venezuela’s denunciation can be found here: http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights_sign.htm#Venezuela. The Venezuelan Ministry of Foreign Affairs has posted an interview with the Minister here (in Spanish): http://www.mre.gov.ve/index.php?option=com_content&view=category&layout=blog&id=2&Itemid=325
This is not the first denunciation for the American Convention on Human Rights, with Trinidad and Tobago having denunciated in 1998 due to a stated need to address delays in death penalty cases as a result of the time taken before international human rights bodies. Venezuela is the second state to withdraw from the American Convention on Human Rights, notably at a time when the inter-American human rights system is undertaking consultations with respect to reforms (see earlier post).
Readers will also be aware that Venezuela is not a newcomer to denunciations, having earlier this year denounced the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention), becoming the third Latin American state to denounce the ICSID Convention (after Bolivia in 2007 and Ecuador in 2009). Under the terms of the ICSID Convention, which provides for a six-month notice period, Venezuela’s denunciation came into effect in July.
For those interested in recent developments in domestic state immunity acts, see earlier posts here and here, Canada has now announced that Iran will be formally listed as a state sponsor of terrorism. Canada has closed its embassy in Iran and declared personae non gratae all remaining Iranian diplomats in Canada. The news release from the Canadian Department of Foreign Affairs and International Trade (DFAIT) can be found here. Earlier attempts to sue Iran in Canada’s courts can be found here, here and here.
Update: In a separate news release, now available here, Canada has announced that it is listing Syria and Iran as state supporters of terrorism.
Congratulations to the organizers of the second conference of the Latin American Society of International Law (LASIL-SLADI), here in Rio de Janeiro. This was the second conference for this relatively new regional international law society, with the first conference having been held in Mexico in 2010.
Organized alongside the 10th Brazilian conference on international law, the LASIL-SLADI meeting successfully brought together representatives from regional societies from five continents. The conference began with a unique opening panel, hearing perspectives from the African Foundation for International Law, the Asian Society of International Law, and the European Society of International Law, as well as two national societies for the United States and Canada to ensure that the Western Hemisphere was fully represented. (I’m here representing the Canadian Council on International Law and the Canadian perspective.)
Whether there is a regional approach to international law, or what that means in terms of content, is one of the questions underlying the discussions here, with regionalism having some paradoxical connotations when juxtaposed against national societies that have become global in their interests (and with respect to at least one or two national societies, global in their memberships). As Her Excellency Judge Xue of the International Court of Justice remarked in her insightful presentation for the Asian Society of International Law perspective, what does regionalism mean to international law and should there be a different approach? There is also the question of why is there growth in the establishment of regional international law societies when we also discuss global approaches to shared problems and concerns? Of course, practical considerations such as costs through regional collaboration, and the desire to provide a forum for intellectual exchange, also feature in these discussions.
Readers interested in reform within the international human rights system, including the reform of the UN human rights treaty monitoring system previously discussed here, may be interested in yesterday’s announcement by the Inter-American Commission on Human Rights (IACHR), adding a regional dimension to discussions.
The IACHR serves as the focal point for human rights within what is touted as “the world’s oldest regional organization” – the Organization of American States (OAS). The OAS is a pan-American regional organization akin to the Council of Europe, supported by 35 states in the Western Hemisphere, and headquartered in Washington DC. The IACHR was created in 1959, and formally established in 1960, with a mandate to promote and protect human rights throughout the region. It is one of two organs of the inter-American human rights regime, the other being the Inter-American Court of Human Rights based in San José, Costa Rica. With functions similar to the UN treaty-monitoring bodies, and the old European Commission on Human Rights, the IACHR monitors the situation of human rights in the various OAS states, conducts on-site visits, handles individual complaints, and hosts several thematic rapporteurs. The Commission also brings cases to the Court, as was done in the old European human rights system prior to Protocol 11.
But all is not rosy at the IACHR, with a current docket of 8500 individual complaints currently pending before the seven-member part-time body. Financial resources have not kept up with the volume of complaints, and each commissioner also serves as a thematic rapporteur, with consequent duties and workload. Events within the Americas also add to the workload. In 2002, for example, the IACHR received 3783 complaints as a result of the banking measures adopted in Argentina, and further petitions were received in 2009 following the coup d’état in Honduras.
The IACHR has agreed to embark on an in-depth examination of its procedures and mechanisms. To this end it has, as of 3 August 2012, published its methodology document for what it calls its “2012 process of reform of its Rules of Procedure and of its institutional policies and practices” (with the Rules of Procedure last undergoing significant reform back in 2009). It is expected that consultation documents regarding the individual complaint procedure, precautionary measures, the monitoring function, and the promotion function, will be published on or before 25 August 2012, to be followed by a one-month period for comments from all users of the inter-American system. By the end of September, we should see an IACHR report to the OAS Permanent Council on possible reforms to the Rules, policies and practices of the IACHR, and in October, the IACHR promises to convene two hearings on strengthening measures to give key actors an opportunity for dialogue.
The webpage for the “Process for Strengthening the IACHR” can be found here.
On 20 July 2012, the International Court of Justice (ICJ) issued its final judgment (summary found here; press release found here) in the proceedings brought by the Kingdom of Belgium against the Republic of Senegal concerning the desired prosecution of Chad’s former head of state, Mr. Hissène Habré – a now long-term resident of Dakar. The victory rests with Belgium, which has sought Habré’s prosecution in Senegal, or his extradition from Senegal to Belgium, for mass acts of torture committed in Chad during his presidency from 1982-1990, with the ICJ recognizing that: “Extradition and prosecution are alternative ways to combat impunity” (para. 50).
However, the victory (in this case concerning “Questions relating to the obligation to prosecute or extradite”) was secured by a refinement, or narrowing, of the basis for the complaint. In its 2009 Application instituting proceedings, Belgium had argued that Senegal was obliged to bring criminal proceedings against Mr. Habré as a matter of customary international law concerning core international crimes, but by 2012, the focus of the inquiry had shifted to the more specific obligations of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (or CAT to use the summarizer’s short-form), with the ICJ making clear that any state party to a treaty such as the CAT or the Genocide Convention (paras 68-69) has a “common interest in compliance” and can make a claim concerning the cessation of an alleged breach by another state party (thus sidestepping the question of whether Belgium is an injured state or has a special interest). The ICJ has confirmed that the obligations of the CAT may be defined as “obligations erga omnes partes” in the sense that each state party has an interest in compliance with them in any given case (although this point does receive discussion in the separate opinion of Judge Skotnikov). The issue of whether there exists an obligation for a state to prosecute crimes under customary international law that were allegedly committed by a foreign national abroad is expressly left for another day (para. 54) (with Judge Abraham in a separate opinion putting down a marker that in his view, there is no such customary rule).
For those interested in matters of jurisdiction and cross-border litigation, the Committee of Ministers of the Council of Europe has now adopted a declaratory text alerting its 47 member states to what it termed the “serious threat to freedom of expression and information” posed by the practice of libel tourism – a practice where one chooses a plaintiff-friendly jurisdiction in which to bring a libel suit against a journalist, publisher, or academic. In calling for the reform of defamation laws in Europe to prevent libel tourism, the Committee of Ministers is also calling for some uniformity of standards.
For those unfamiliar with the organs of the Council of Europe, the Committee of Ministers is the Council’s executive body, consisting of all Foreign Ministers from the Council’s 47 member states or their deputies. The declaration adopted last week, while not a legally binding text, serves to add the voice of a weighty regional group of states to the claim that libel tourism and forum shopping in defamation cases can produce a chilling effect on expression and the availability of information. A copy of the declaration, entitled the “Declaration of the Committee of Ministers on the Desirability of International Standards dealing with Forum Shopping in respect of Defamation, “Libel Tourism”, to Ensure Freedom of Expression,” can be found here.
I’ve long been a fan of Joshua Rozenberg, who I believe is one of the best legal commentators in the United Kingdom, and among other activities, is the presenter of a worthwhile program called “Law in Action” for BBC Radio 4, which I listen to in Canada via podcast.
Recently, while going through last month’s podcast collection, I listened with interest to Rozenberg’s first program for the summer 2012 season, entitled “Secret courts, drones and international law” which featured an interview with Sir Daniel Bethlehem KCMG QC, (or “Kindly Call Me God” as the old joke goes), the former principal Legal Adviser with the UK’s ministry of foreign affairs, the Foreign and Commonwealth Office (FCO). Rozenberg also interviewed EJIL Talk’s own blogger-extraordinaire Dapo Akande as well as Mary-Ellen O’Connell of the University of Notre Dame for this program, which aired in early June, but you can still listen to it here.
Most of our immunity-related discussions in recent weeks have focused (naturally) on the recent ICJ decision in Jurisdictional Immunities of the State (Germany v. Italy, with Greece intervening). But there are new developments at the domestic level worth noting, including the passage this month of amendments to Canada’s State Immunity Act to allow victims of terrorism to sue the perpetrators in a Canadian court, including foreign states listed by the Government of Canada as supporters of terrorism.
As in many other states, Canada has embraced a restrictive rather than absolutist approach to the question of foreign state immunity from the jurisdiction of a state’s domestic courts. The legislative scheme adopted some thirty years ago in Canada embraces the concept of foreign state immunity from domestic court jurisdiction, but also provides for certain specified exceptions. For example, the commercial activity exception, which provides that: “A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any commercial activity of the foreign state.” See section 5 of the above-referenced Act, and the definition of “commercial activity” in section 2.
But these exceptions to immunity are few in number and they do not address the question of jus cogens breaches committed by foreign states. Within Canada, this situation has led to efforts to expand the current list of statutory exceptions so as to permit an individual to sue a foreign state for torture in a Canadian court, with the unsuccessful case of Bouzari v. Islamic Republic of Iran being the notable example, and one which resulted in criticism of Canada before the Committee against Torture (CAT). Read the rest of this entry…