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Home Archive for category "EJIL Analysis"

The Grand Chamber Judgment in Hassan v UK

Published on September 16, 2014        Author: 

The eagerly-awaited Grand Chamber judgment in the case of Hassan v UK has now been released, and its importance for anyone interested in extraterritoriality, detention and the relationship between international humanitarian law (IHL) and international human rights law (IHRL) cannot be overstated. For the first time in its history, the Court has explicitly offered its view on the interaction between IHL and IHRL and the operation of the Convention, particularly the right to liberty, in the context of an international armed conflict.

A good overview of the facts of the case and the Court’s judgment can be found here, and they will not be repeated in this post. Instead, I want to offer some initial thoughts on the Court’s reasoning with regard to Article 5 ECHR and, more specifically, its approach to treaty interpretation.

The question before the Grand Chamber was whether the internment of the applicant’s brother, which appeared to conform with the Third and Fourth Geneva Conventions, could be considered consistent with Article 5 ECHR, notwithstanding the absence of any derogation by the UK. At a very general level, the Court effectively had two options here. On the one hand, it could have followed the path it appeared to be laying in its previous case-law, particularly in Al-Skeini and Al-Jedda, and hold that, where jurisdiction exists and where no lawful derogation has been made, the State remains bound to honour its obligations under the ECHR as ordinarily interpreted. Had the Court taken this approach, the Contracting States may eventually have conceded defeat and begun derogating in extra-territorial contexts. (Incidentally, the Court continued to avoid explicitly engaging with the permissibility of extra-territorial derogations.) Instead, the Court adopted the alternative approach, interpreting the ECHR so as to leave room for the broader powers that States have under IHL. Thus, it effectively read into Article 5(1) ECHR an extra permissible ground for detention where consistent with the Third and Fourth Geneva Conventions, and it read down the requirement of habeas corpus in Article 5(4) to allow for the administrative forms of review under the Fourth Geneva Convention.

Let’s begin with a few, in my view, positive points about the Court’s approach here. First, and perhaps most importantly, the Court rejected the UK’s principal argument that IHL as the lex specialis precluded jurisdiction arising under Article 1 ECHR (para 77). To have followed this would effectively have been to displace the entire Convention where IHL applies. Instead, the Court adopted a more nuanced, case-by-case approach which looks at the specific right at issue. This enables the Court to retain its oversight function by assessing the legality of the actions of Contracting Parties through the prism of IHL.

Read the rest of this entry…

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Scottish Independence and EU Membership: Part II

Published on September 16, 2014        Author: 

Introduction

In my previous post (here), I addressed the reasons why international law and EU both arrive at the conclusion that an independent Scotland would not automatically succeed to EU membership. Given that it now seems to be accepted on all sides that membership of the EU would therefore need to be negotiated, much of the previous post can be considered a necessary background to the following discussion. In this post, I consider the correct legal basis in the European Treaties for negotiated EU membership, as well as some of the problems involved in the negotiations, the consequences if they fail, and how such issues might come to be considered by the Court of Justice.

Due to the complexity of the issues and the consequent length of this post, it is only appropriate to summarise my view from the outset. In theory, I consider that either Article 48 or Article 49 of the Treaty on European Union (TEU) could be utilised in order to facilitate EU membership for an independent Scotland. However, both routes involve significant difficulties, and it is likely that an Article 48 process would be the more problematic of the two, and could be blocked. In any case, it appears that the Scottish Government’s proposals for the timetable from a ‘Yes’ vote to independence day are wildly optimistic.

On balance, and contrary to the position in the Scottish Government’s White Paper, it may therefore be the case that Article 49 should be preferred by the Scottish Government, for the reasons I set out below. However, whichever process is used, if the date for independence day is immovable, then the possibility of the requisite membership steps remaining incomplete at that time is a nettle (or a thistle!) that must be grasped. In such a scenario, I envisage that EU law would be given continuity of effect, and that it would be possible or even likely that a case would reach the Court of Justice which would test this point. However, such a position would probably be an interim solution at best, and could still result, in the worst case scenario, in the EU rights and obligations of an independent Scotland, its citizens, and its companies, coming to an end. Read the rest of this entry…

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Filed under: EJIL Analysis, European Union
 

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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Refusing to Negotiate Can Have Tragic Consequences

Published on September 9, 2014        Author: 

bellish2Jon Bellish is the Project Development Manager at the One Earth Future foundation and a fellow at the Ved Nanda Center for International & Comparative Law at the University of Denver Sturm College of Law.

On August 19, the Islamic State in Iraq and Syria (ISIS) released a video showing the beheading of American journalist James Foley, after the United States government refused to pay a nine-figure ransom. Foley’s execution prompted a debate about the propriety of paying ransoms:  on the one hand, paying can save the life of the captured hostage; on the other hand, paying ransoms fuels the very activity that gave rise to the need to pay a ransom in the first place.

Earlier this week, ISIS released another video, this one claiming to show the beheading of another American freelance journalist, Steven Sotloff. The video depicting Mr. Sotloff’s murder also showed another hostage, thought to be a British national, which has led to pressure on the U.K. government to negotiate with ISIS for his release. British Prime Minister David Cameron continues to remain faithful to the U.K.’s 40 year-old policy of not making concessions.

The United States also has a no-concessions policy and will not negotiate with hostage takers, and also encourages its citizens not to. Other countries have paid ransoms and secured the safe release of their citizens, including other journalists held by ISIS.

Which policy is the better one?  There appears to be momentum towards a ban on paying ransoms.  Because of the rise in kidnapping for ransom as a means of financing terrorism in recent years, in January 2014, the United Nations Security Council unanimously adopted a Resolution calling on states to refuse to pay ransoms to terrorists and also work with the private sector to respond to terrorist kidnappings without paying ransoms. On August 15, 2014, the Council issued Resolution 2170 directly addressing the various threats posed by ISIS. That Resolution expressed the Council’s determination to secure the safe release of hostages taken by terrorist groups without the payment of ransoms. Read the rest of this entry…

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Harmonizing Standards in Armed Conflict

Published on September 8, 2014        Author: 

Editor’s Note: This post is part of the joint series of posts hosted by EJIL:Talk!, Lawfare and Intercross (blog of the International Committee of the Red Cross) and arising out of the Transatlantic Workshop on International Law and Armed Conflict held in Oxford this summer.

One of the consequences of the non-international armed conflicts (NIACs) of recent years has been widespread recognition that the current international humanitarian law (IHL) treaty framework regulating such conflicts is inadequate. One interim solution that some states have pursued has been to apply the rules developed for international armed conflicts (IACs) in conflicts with non-state armed groups.

The United States, Australia, Canada, the Netherlands, the United Kingdom, and others, for example, have issued guidance stating that their armed forces will apply IAC rules as a matter of policy in NIACs. And since 2009,the US has taken the position that “[p]rinciples derived from law-of-war rules governing international armed conflicts. . . must inform the interpretation of [its Guantánamo] detention authority.” Yet the extent to which states look to IAC principles as a means of delimiting their authority is unclear.

The Project on Harmonizing Standards for Armed Conflict, which I co-direct with Sir Daniel Bethlehem at the Columbia Law School Human Rights Institute, seeks to augment such efforts by exploring the extent to which the IAC treaty regime can be practically applied, as a matter of law, in NIACs.  The ultimate goal of the project is to help harmonize the IHL rules applicable in all armed conflicts to the higher standards established for IACs. States would adhere to the regime by registering a unilateral declaration of intent with an appropriate body, possibly the Swiss Federal Council (the depository for ratifications of the Geneva Conventions).  The resulting regime would be legally binding on that state as a matter of international law.

One consequence of the approach would be to substantially reduce the significance of characterizing a conflict as either an IAC or NIAC.  If successful, the project could help significantly raise the level of protection for individuals in non-international armed conflicts while clarifying a participating state’s IHL obligations.  More broadly, it could complement longer-term law reform efforts by demonstrating the feasibility of holding states to the higher standards of protection from IAC, and ultimately catalyse the development of a more harmonized regime of IHL legal standards. Read the rest of this entry…

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ESIL Prizes Announced

Published on September 5, 2014        Author: 

This evening the European Society of International Law, at its 10th Anniversary Conference in Vienna, announced the winners of the ESIL Prize: Sandesh Sivakumaran, for his book The Law of Non-International Armed Conflict (OUP, 2012) and Ingo Venzke, for How Interpretation Makes International Law: On Semantic Change and Normative Twists (OUP, 2012). Many congratulations to both!

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Filed under: EJIL Analysis
 

Sovereign Debt Litigation Against Argentina: An Aberration or A New Routine?

Published on September 4, 2014        Author: 

hayk

Hayk Kupelyants is a PhD candidate at Sidney Sussex College, University of Cambridge.

Argentina’s 2001 economic crisis led to one of the most extensive sovereign debt restructurings in history. In hindsight, it was also one of the harshest, in terms of Argentina’s negotiating stance and the losses incurred by bondholders. Ninety-three percent of holders of Argentine sovereign bonds eventually accepted the terms of two restructurings in 2005 and 2010, but seven percent of bondholders, holding an approximate US $4 billion of Argentine sovereign bonds “held out,” or declined to accept restructured bonds. The plaintiffs in the litigation discussed in this post hold US $1.7 billion, which they seek to recover through litigation in US courts.

NML Capital and other hedge funds purchased the Argentine bonds on the ‘secondary market’, i.e. on the market of previously issued financial instruments, from the original owners of bonds. The business model of hedge funds specialising in distressed debt is to purchase sovereign debt or judgments against a sovereign on the secondary market at a deeply reduced price to their par and, by consistently holding out from the renegotiation process and aggressively litigating, recover the full value of the bonds. The Argentine bonds purchased by the hedge funds contained choice of forum clauses in favour of New York courts, choice of law clauses in favour of New York law and broad waivers of sovereign immunity. The combination of these clauses should havemade the effort of recovering the debt much less painful. However, the hedge funds’ continuous efforts  to enforce US judgments in their favour around the world have so far been modestly successful at best.

In the view of many, the balance of powers may change as a result of the recent US litigation. The US court litigation discussed in this blog post has been called ‘the trial of the century’ or the litigation that will change the landscape of sovereign debt restructurings. It has been remarkable, as the hedge funds have come close to being repaid under the bonds purchased on the secondary market. In an unprecendented turn of the litigation, the holdout creditors have obtained third-party injunctions from US courts that have driven a sovereign state to default. Read the rest of this entry…

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Tennyson’s “Locksley Hall”: A Disappointed Dream of Peace Through Law

Published on September 2, 2014        Author: 

In “L220px-Alfred_Lord_Tennyson_1869ocksley Hall”–a lesser known masterpiece of Alfred, Lord Tennyson (pictured left)–a soldier ruminates on the disappointments of his youthful passion and idealism. Below is an excerpt in which the narrator reflects on his earlier vision of a future of peace through international law and commerce and his later disillusionment with that dream. The poem is remarkably post-modern given that it was first published in 1842. Despite the skepticism of the modernist, internationalist project expressed in the poem, Winston Churchill reportedly called it “the most wonderful of modern prophecies,” and U.S. President Harry Truman–in office when the UN was formed with his strong support–is said to have carried it in his wallet.  Here is the excerpt:

Make me feel the wild pulsation that I felt before the strife,
When I heard my days before me, and the tumult of my life;Yearning for the large excitement that the coming years would yield,
Eager-hearted as a boy when first he leaves his father’s field,And at night along the dusky highway near and nearer drawn,
Sees in heaven the light of London flaring like a dreary dawn;

And his spirit leaps within him to be gone before him then,
Underneath the light he looks at, in among the throngs of men:

Men, my brothers, men the workers, ever reaping something new:
That which they have done but earnest of the things that they shall do:

For I dipt into the future, far as human eye could see,
Saw the Vision of the world, and all the wonder that would be;

Saw the heavens fill with commerce, argosies of magic sails,
Pilots of the purple twilight dropping down with costly bales;

Heard the heavens fill with shouting, and there rain’d a ghastly dew
From the nations’ airy navies grappling in the central blue;

Far along the world-wide whisper of the south-wind rushing warm,
With the standards of the peoples plunging thro’ the thunder-storm;

Till the war-drum throbb’d no longer, and the battle-flags were furl’d
In the Parliament of man, the Federation of the world.

There the common sense of most shall hold a fretful realm in awe,
And the kindly earth shall slumber, lapt in universal law.

So I triumph’d ere my passion sweeping thro’ me left me dry,
Left me with the palsied heart, and left me with the jaundiced eye;

Eye, to which all order festers, all things here are out of joint:
Science moves, but slowly, slowly, creeping on from point to point:

Slowly comes a hungry people, as a lion, creeping nigher,
Glares at one that nods and winks behind a slowly-dying fire.

The entire poem (which, I note, shows its age in its protagonist’s thoughts on women and non-European peoples) is available here.

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The International Court of Justice and the Judicial Function: Responses

Published on August 29, 2014        Author: 

I am very appreciative to Yuval Shany, Mary Ellen O’Connell, and Iain Scobbie for taking the time to engage so thoroughly with the arguments contained in my book; it has been a privilege to see my words and ideas through their own reactions, and to see the first public reactions to my writing.  The blog forum discussion makes it a challenge to respond fully to the many incisive points raised in their responses. However, with this brief reply, I wish to address some of the comments made, and in particular, to develop further a few arguments drawn from the book, in the hope of eliciting wider discussion. I will try to add address their points in turn.

Response to Yuval Shany

Yuval has chosen to engage primarily with the processual Part of the book (Chapters IV-VI, but also to a point the discussion on the Court’s exercise of certain powers in Chapter III). In that Part, I engaged with the Court’s deliberative process, its commitment to impartiality (and the particular form that such a commitment takes, given its institutional structure), and the justificatory reasoning the Court deploys in support of its conclusions, particularly its fairly strict adherence to its previous judgments. Yuval has pointed out my attempt to discern, if possible, a collective intent on behalf of the Court in drafting its judgments, and has rightly pointed out the ‘relatively low levels of doctrinal coherence’ in the Court’s judgments when taken as a whole, which make such a characterisation difficult.

He is correct that I emphasise the aspiration towards collective authority: it is an aspiration of the Court itself, which controls its own deliberative and drafting procedure, and which is found in its Resolution concerning the Internal Judicial Practice of the Court. The focus of my scrutiny over this particular question is not, however, merely a question of effectiveness: what I have sought to establish has been how the Court’s procedures, composition, and justificatory reasoning have together been tailored to secure the maximum possible authority for the Court qua institution. Given the fragility of certain of the Court’s institutional realities (raised by Mary Ellen, and to which I will turn shortly below), and the Court’s emphasis on its collective, universal and general character within the United Nations framework (and the international legal order, more broadly understood), such a claim represents the abandonment of the idea of the Court as a limited, bilateral dispute settlement organ. And it is precisely the fact that the Court has constructed formal, procedural authority for itself—and has been successful in cultivating support for this vision amongst other international actors!—which is of heightened relevance.

For the Court to make a legitimate claim to such authority requires, equally, a clear vision of the international legal order and the political community to which this legal order belongs. Thus, in the last chapters of the book, I argue that the Court’s interpretation of substantive international law has not kept pace with its claim to institutional authority. Yuval is perhaps correct that some of the tensions in the Court on questions such as the role of judicial precedent, the completeness of international law, and the legal effect of obligations erga omnes and norms of jus cogens may be due less to a complex doctrinal debate than the retention of ideas ‘selected for [their] ability to justify the preferred outcome’, and that the preservation of the Court’s influence depended on the outcome rather than on the reasoning. That is precisely my point: that one cannot parse the Court’s judgments carefully without a heightened understanding of the context in which it operates. Read the rest of this entry…

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On Judging v. Legislating in the International Legal System

Published on August 27, 2014        Author: 

Gleider Hernández’s impressive book updates Hersch Lauterpacht’s 1933 classic, The Function of Law in the International Community.  Despite Lauterpacht’s more general title, his focus, like Gleider’s, was on adjudication of international law in the international community.  Lauterpacht makes a case for courts as critical institutions of international law.  He responds to concerns of his day challenging the very possibility of courts of law delivering judgments binding on sovereign states.

The International Court of Justice (ICJ) and its predecessor, the Permanent Court of International Justice (PCIJ), have now been in existence for over 90 years.  This long history might suggest that the importance of a world court is now accepted. To a certain extent this is true.  Comparing the topics Lauterpacht dealt with and those chosen by Hernández indicates real progress.  Yet, major issues relative to the ICJ’s existence and its claim to be a true court of law remain. General and compulsory jurisdiction were goals of the world’s mass peace movements in the late 19th and early 20th centuries.  Today, the interest in expanding the ICJ’s compulsory jurisdiction has nearly vanished. (See Mary Ellen O’Connell and Lenore VanderZee, “The History of International Adjudication,” The Oxford Handbook of International Adjudication (C.P.R. Romano, K.J. Alter, and Y. Shany, eds. 2013).)

Moreover, the feature that separates the ICJ from the formal ideal of a court more than any other may well be the requirements respecting judges and nationality.  Guaranteeing five states judges of their nationality and allowing for a judge ad hoc when no judge of a party’s nationality is already on the court is a vestige of the party arbitrator.

Gleider does not discuss compulsory jurisdiction or the P-5 judges.  He accepts almost without critique the judge ad hoc. (pp. 136, 145-46) Instead, his book seems aimed not at the international community and its attitude toward the ICJ, but at the ICJ itself, which he conceives of in corporate form, rather than as a collectivity of judges.  He is interested in the “ICJ’s” view of judicial function.  He wants the ICJ to adopt an activist stance, arguing throughout the book for “progressive development of the law.”  (See, e.g, pp. 280-293.) Judge Tomka in a foreword comments on the “significant risks in demanding too much of [the court] in terms of progressive development.” (p. viii)

Tempting as it is to consider the risks of progressive development, in these brief comments, I will instead look at an assumption underlying Gleider’s call to activism.  Read the rest of this entry…

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