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Home Archive for category "EJIL Analysis"

Comment on Paposhvili v Belgium and the Temporal Scope of Risk Assessment

Published on February 21, 2017        Author: 

On 13 December 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered a significant ruling in Paposhvili v Belgium, App. No. 41738/10, correcting the narrow approach to Article 3 medical removal cases taken in D v United Kingdom, App. No. 30240/96 (2 May 1997) and extended in cases such as N v United Kingdom, App. No. 26565/05 (27 May 2008). These cases established that a breach of Article 3 (sending an applicant to a real risk of torture or inhuman and degrading treatment) would only be found in the most exceptional circumstances, namely where there were compelling humanitarian considerations such as an applicant being critically ill and facing mental and physical suffering and hastened death upon removal. The Paposhvili judgment expands the application of Article 3 in medical cases and raises interesting issues about our broader understanding of prospective risk assessments in other types of subsidiary protection/complementary protection and refugee cases.

The applicant, a Georgian national facing removal due to criminal activity in Belgium, suffered from leukaemia and recurrent tuberculosis which had caused lung disease. He claimed that he would be unable to access adequate medical treatment in Georgia and was therefore at risk of ill-treatment and accelerated death if he were expelled. Indeed, medical evidence accepted by the Court indicated that he would die within 6 months of his treatment being discontinued ([195]).

Although Mr Paposhvili died while his Grand Chamber hearing was pending, the ECtHR examined his complaint due to its wider impact on cases involving aliens who are seriously ill and facing removal. The ECtHR “clarified” its jurisprudence in relation to that group of people, noting that the case law since N v United Kingdom had been impermissibly narrow and “deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of [Article 3]” ([181]–[182]). While maintaining the language of “exceptional cases” from D, the ECtHR expanded that category to encompass:

situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. ([183], emphasis added)

Dr Lourdes Peroni and Steve Peers have noted that the significance of this case is the ruling that access to “sufficient and appropriate” medical care must be available in reality, not merely in theory. The submissions of the Ghent University Human Rights Centre as intervening party provided the ECtHR with an excellent platform from which to set out procedural obligations and evidentiary factors to guide the assessment of risk. The ECtHR held at [190]–[191] that the “authorities must also consider the extent to which the individual in question will actually have access to this care and these facilities in the receiving State” and :

“where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned…the returning State must obtain individual and sufficient assurances from the receiving State…”. Read the rest of this entry…

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Post-Truth and International Criminal Tribunals

Published on February 20, 2017        Author: 

With all the daily going-ons of our new era of resurgent populist nationalism, it’s no wonder that concepts such as ‘post-truth’ and ‘alternative facts’ are so very much en vogue, or that Orwell’s 1984 and other dystopian classics are once more hitting the best-seller lists. But the sad truth is that there’s nothing really new about ‘post-truth’, except that it is today afflicting developed, democratic societies that until now did not experience the phenomenon, or at least did not experience it in full force.

Trump photographed at Mar a Lago with Japanese Prime Minister Shinzo Abe during the news of North Korean missile launch. Photograph: Erika Bain. Source: https://www.theguardian.com/us-news/2017/feb/13/mar-a-lago-north-korea-missile-crisis-trump-national-security#img-2

Nor did post-truth start in these societies just out of the blue – it was preceded by decades of democratic de-norming, institutional erosion, increasing polarization and identity politics (think, for example, of how climate change became a point of polarized partisan politics in the US, or of the distorting power and influence of the (mainly right-wing) tabloid press in the UK).

Even in democracies politicians are not a species generally known for its love of the truth. It is no wonder then that in a favourable climate a sub-species of particularly cynical manipulators who are either ready to routinely lie outright or are just simply indifferent to the truth will emerge. Coupled with the natural inclination of the human mind to evaluate evidence in a biased way and to reason about it in a way that confirms pre-existing beliefs and protects one’s sense of identity, in much (most?) of the world post-truth politics are the rule, rather than the exception. Trump may be the most important exponent of the current wave of mendacious populism, but he is hardly avant-garde. For decades now, for example, many of the Balkan states have experienced their own ego-maniacal, soft-authoritarian mini-Trumps, and let’s not even mention all of the Putins, Dutertes and Erdogans out there.

Which brings me to my point. Post-truth and alternative facts have historically been perfectly standard when it comes to inter-group conflicts, especially in societies which are not genuinely pluralist. Pick any random group conflict in the world, and you are likely to find that each group lives and breaths its own particular truth. In our international legal community, many have thought that it is the role of international criminal courts and tribunals to generate the ‘real’ truths that will eventually garner acceptance in societies riven by conflict. Unfortunately, however, there is little evidence that such truth-generating potential is anything but theoretical.

Read the rest of this entry…

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Post-Election Crisis in The Gambia, the Security Council and the Threat of the Use of Force

Published on February 17, 2017        Author: 

The Gambian post-election crisis is a gem amongst cases relevant to the law on ius ad bellum – not only because it is a crisis that has been resolved with almost no bloodshed, but also because it offers valuable insights into the interaction between Security Council authorization, the doctrine of intervention by invitation, and the prohibition on the threat to use of force (see for some analysis here, here, here, or here).

Professor Hallo de Wolf has concluded that “the legality of the ECOWAS’ military intervention is dubious”. His analysis primarily focuses on the question of legality of the ECOWAS’ intervention after the inauguration of The Gambia’s new president, Adama Barrow. However, his conclusion may be challenged if one is to read Security Council resolution 2337 (2017) as a non-prohibitive non-authorization, which indirectly opens and strengthens the alternative avenue of the doctrine of intervention by invitation . Elsewhere, I have evaluated this interpretation against State practice and the Council’s resolutions in the Syrian and Yemeni incidents and concluded that the consent of the new president, Barrow, may suffice to justify the military intervention in The Gambia.

If one is ready to follow this line of thought, a question arises as to the effect of the consent; what conduct is justified by the invitation? The post-election crisis in The Gambia, for which the course of events may be recalled here or here, entails temporal complications in this respect. The crisis can be divided in three phases: (1) pre- inauguration (Jammeh’s clinging to power up until the inauguration, and end of the ECOWAS’ ultimatum, 19 January 2017); (2) the time between passage of the ultimatum and official inauguration; (3) post- inauguration. Read the rest of this entry…

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The Use of Force to (Re-)Establish Democracies: Lessons from The Gambia

Published on February 16, 2017        Author: 

It has been almost a month since predominantly Senegalese troops entered The Gambia as part of an ECOWAS intervention after long-term president Yahya Jammeh had refused to accept the results of the December 2016 elections. ECOWAS troops remain in the country until this day in order to support newly-elected president, Adama Barrow, in establishing and maintaining public order.

The case has been widely discussed as it raises a number of questions concerning the use of force in general, the right to intervention by invitation and authorizations by regional organizations (see here, here, or here). In particular, it shows that, if the circumstances admit it, the international community is more than willing to accept the use of force to establish or re-establish democracies. The following post will focus on this debate and briefly describe how it evolved until this very day. Read the rest of this entry…

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Flexing Muscles (Yet Again): The Russian Constitutional Court’s Defiance of the Authority of the ECtHR in the Yukos Case

Published on February 13, 2017        Author: 

The saga in the case of the defunct Yukos oil company is far from over after the Russian Constitutional Court (RCC) in its decision of 19 January 2017 ruled that Russia was not bound to enforce the ECtHR decision on the award of pecuniary compensation to the company’s ex-shareholders, as it would violate the Constitution of the Russian Federation (CRF). The protracted argument between the Yukos oil company’s ex-shareholders and Russia has spanned over a decade before the ECtHR. In its judgment of 20 September 2011, the ECtHR found that Russia acted in breach of Art. 6 of the ECHR by failing to accord sufficient time to Yukos for preparation of its case before national courts. Further to this, the ECtHR found two breaches of Article 1 of Protocol I, in particular with respect to the assessment of penalties by the Russian tax authorities in 2010-2011 and their failure to “strike a fair balance” in the enforcement proceedings against Yukos. The issue of just satisfaction was settled in the 2014 ECtHR judgment that awarded 1,9 billion EUR in pecuniary damages to be paid by Russia to the Yukos ex-shareholders. It is an unprecedented amount of compensation that has ever been awarded in the context of human rights litigation, which makes Russia’s annual budget of 7,9 mil EUR allocated for enforcement of the ECtHR decisions look like a drop in the ocean. Following Russia’s unsuccessful appeal attempts in the ECtHR, the Russian Ministry of Justice brought the case before the RCC arguing against enforcement of the ECtHR judgment.

Uncertain Relationship Between International and Russian Law

The constitutional provisions on the relationship between international and Russian law are far from clear. As a general rule, the primacy of international treaties and agreements could be inferred from Art. 15(4) of the CRF:

If an international treaty or agreement of the Russian Federation provides for other rules than those envisaged by law, the rules of the international agreement shall apply.

The latest decisions of the RCC raise an important question on the relationship between international treaty law and Russian law, given its findings on the primacy of the Constitution if there exists a conflict between the rules of international and national law. Read the rest of this entry…

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International Commissions of Inquiry as a Template for a MH17 Tribunal ? A Reply to Jan Lemnitzer

Published on February 9, 2017        Author: 

In his essay on ‘International Commissions of Inquiry and the North Sea incident: a model for a MH17 tribunal?’ Jan Lemnitzer makes the argument that the origins of commissions of inquiry (COIs) dealing with international criminal law are deep-rooted, dating back well before the Hague Conventions of 1899 and 1907. Presenting the Doggerbank inquiry as a de facto criminal trial, he disputes that contemporary commissions of inquiry should be seen as distinct from the Hague tradition as some scholars, including myself, have argued. In addition, Lemnitzer believes that a MH17 tribunal premised on the historical precedent of the Doggerbank inquiry offers the most promising avenue for justice especially also given the similarity of the position of Russia in both situations. I have truly appreciated Lemnitzer’s indepth account of the Doggerbank inquiry, including his analysis of the politics leading up to the inquiry as well as his points on the reception and subsequent framing of the inquiry’s outcome. Yet, as I will set out in this reply, I do not agree with some of Lemnitzer’s overarching arguments regarding Doggerbank as a precedent, the genealogy of commissions of inquiry and their present-day possibilities as such arguments fail to distinguish between different models of inquiry on the one hand and between inquiry and criminal investigation on the other.

The Pluriformity of Commissions of Inquiry

As Jan Lemnitzer indicates in the opening sentence of his article, commissions of inquiry (COIs) “have recently begun to feature more prominently in academic and political debate”, and I would add, they bourgeon in actual practice. Read the rest of this entry…

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The South China Sea moves to the Indian Ocean: Conflicting Claims Over the Tromelin Islet and its Maritime Entitlements

Published on February 8, 2017        Author: 

The small, isolated, inhospitable (and inhabited) island of Tromelin, located in the Indian Ocean north of Mauritius and the French Reunion island, and east of Madagascar (see map), has been the subject of passionate debate in recent weeks in France, both in the media (here and here) and within the Parliament (transcript of the debate before the French National Assembly).

Tromelin is a flat and small feature, about 1,700 metres long and 700 metres wide, with an area of about 80 hectares (200 acres). Its flora is limited, while the site is known to host significant numbers of seabirds. There is no harbour nor anchorages on the island, but a 1,200-metre airstrip, and there appears to be no continuous human presence.

Tromelin was discovered by a French navigator in 1722, and France today claims sovereignty over it by virtue of historical title (discovery of terra nullius) dating back to that date. The islet was the scene of a sad – and little known – episode of history as the place where approximately 60 Malagasy men and women were abandoned for 15 years in the 18th century after a French ship transporting slaves eschewed on the island. Most of the slaves died within a few months. The survivors were finally rescued in 1776, when Bernard Boudin de Tromelin, captain of the French warship La Dauphine, visited the island and discovered seven women and an eight-month-old child. Captain Tromelin also raised a French flag on the island – and his name was given to it.

French possession of Tromelin was interrupted by Britain which took control of the island in 1810. Then in 1954, the British gave their consent to France’s effective control over Tromelin. But sovereignty over Tromelin is still disputed, and the island has been claimed by the newly independent Mauritius since 1976, and reportedly also by Madagascar and the Seychelles (see V. Prescott, ‘Indian Ocean Boundaries’ at 3462-63). The controversy in France over Tromelin has led to the postponing of the ratification by the Parliament of a framework agreement entered into by France and Mauritius in June 2010, providing for joint economic, scientific and environmental management (cogestion) of the island and of surrounding maritime areas. Read the rest of this entry…

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Engaging with Theory – Why Bother?

Published on February 7, 2017        Author: 

I may be biased, as theory is currently my main area of practice (here and here), but I am deeply convinced that (international) lawyers should engage more with theory.

One of the peculiar features of the official discourse of international law is to look down at theory. I once heard a colleague say that the Faculty should hire more ‘hard’ lawyers and less ‘soft’ lawyers. I reacted with bewilderment at such a novel qualification, asking what he meant. He said that hard law was the real law that is practised in courtrooms and for which there is a high demand in the market. All those people dealing with soft law, such as ‘theory, human rights and the like’, should only have a secondary role in a serious legal curriculum. Rather than being just a peculiar interpretation of soft law, my colleague’s statement hardly hid a conspicuous cultural bias against theory and intellectual activities.

By the same token, yet another colleague of mine once lay claim to be in need of more assistants compared to his other colleagues on the basis that she taught ‘hard black letter law courses’ and not some ‘wishy-washy’ theory ones. Admittedly, the opposite can also be true. I can perfectly well envisage a sectarian group of international law theorists looking down with contempt at all those practitioners who have not read Foucault, Marx and Koskenniemi (please do not attach any particular significance to this random choice of names!). Yet, there is no doubt that in the traditional discourse of international law the still predominant attitude is to vilify theoretical and philosophical investigations and to consider as relevant only the doctrinal conceptualisation of existing concepts and categories.

The fact that international practice seems to be considered by many as the ultimate form of disciplinary recognition is reflective of a profession that for a long time has denigrated intellectual inquiries that go beyond the mere systematisation and rationalisation of legal materials. The scope for critical inquiry and the development of alternative theoretical approaches to international law is a relatively recent phenomenon, and its overall impact on the discipline’s canons and self-perception still to be fully appreciated. Read the rest of this entry…

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Editorial: The Case for a Kinder, Gentler Brexit

Published on February 6, 2017        Author: 

Of course, we know better than to be shooting at each other; but the post-23 June  relationship between the United Kingdom and the European Union is woefully bellicose, and increasingly so. In tone and mood, diplomatic niceties are barely maintained and in content positions seem to be hardening. I am mostly concerned with attitudes and positions of and within the Union and its 27 remaining Member States. Handling Brexit cannot be dissociated from the handling of the broader challenges facing the Union. I will readily accept that the UK leadership bears considerable responsibility for the bellicosity and the escalating lawfare. But the inequality of arms so strikingly favours the Union that its attitude and policies can afford a certain magnanimous disregard of ongoing British provocations.

It is easy to understand European Union frustration with the UK. I want to list three – the first being an understandable human reaction. It is clear that when Cameron called for a renegotiation followed by a referendum he had no clue what it was he wanted and needed to renegotiate. The Union waited patiently for months to receive his list – the insignificance of which, when it did come, was breathtaking. For ‘this’ one was willing to risk breaking up the Union and perhaps the UK? Read the rest of this entry…

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