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Home Archive for category "EJIL Analysis" (Page 2)

Consent and Customary International Law

Published on August 4, 2014        Author: 

I am pleased to see Professor Guzman and Jerome Hsiang being among those authors who admit that one cannot construct a plausible and coherent CIL theory without a thorough conceptual clarification. In their short article in EJIL Vol. 25:2 (2014), they are focusing on consent and CIL, particularly on the tension between the principle of consent prevailing in international law and non-consensual law-making in the field of CIL. They do not perform an analysis on the concept “consent”, but try to answer the question of why rationally self-interested states should accept the existence of non-consensual customary rules in international relations. I am willing to accept some of their claims or conclusions, as follows. (i) There exist some weak, limited forms of non-consensual rule-making in contemporary international law. (ii) Customary rules are the output of such rule-making. (iii) A non-consensual customary rule, by its content and nature, usually provides great benefits to most of the states or the whole international order and relatively small costs to one or some states.

Of course, all this is the rejection of the so-called consent theories of CIL. It is no surprise. In his excellent, seminal article of 2005 (Saving Customary International Law), Guzman has outlined the basis of a modern, non-objectivist, belief-based CIL theory within the framework of his rational choice doctrine. A belief-based CIL theory is not compatible with consent theories. I also have doubts about that a consent theory could adequately explain how CIL really works. However, three caveats are in order here.

First, consent theories of CIL put up a stout resistance. They are supported by the requirement of “acceptance” in the text of Article 38(1)(b) of the Statute of the International Court of Justice, although they encounter difficulties with adjusting acceptance to opinio juris. For example, Olufemi Elias and Chin Lim, who worked out a modern, refined and flexible version of CIL consent theories (The Paradox of Consensualism in International Law), simply conflate the two concepts, which is problematic from the theoretical angle. Read the rest of this entry…

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Use of Grad Rockets in Populated Areas: What Lessons from Gotovina?

Published on July 30, 2014        Author: 

Maya Brehm PhotoMaya Brehm is a researcher in weapons law at the Geneva Academy of International Humanitarian Law and Human Rights (ADH) and a consultant with Article 36 and PAX. Her recent work focuses on the humanitarian impact of explosive weapon use in populated areas and on framing the policy debate on autonomous weapons systems.

In a recently published report, Human Rights Watch (HRW) documents harm to civilians from the use of 122mm Grad rockets apparently fired by Ukrainian government forces and pro-government militias into Donetsk and its suburbs. In four attacks investigated by HRW at least 16 civilians were killed and many more wounded. According to HRW insurgent forces also recently used Grad rockets. The image below from HRW shows attacks in and around Donetsk (click to enlarge). The organization has also posted a video online presenting its findings.

 The problem with Grad rocketsGrad rockets

Grad rockets are unguided rockets fired from a multiple-barrel rocket launcher (MBRL) that can deliver up to 40 rockets within a very short time to a range of 20 kilometers. Like other unguided, indirect fire  weapons, Grad rockets are considered ‘area weapons’, suited for attacks against targets of significant dimensions, because due to ballistic and other factors, the area over which the rockets can spread out is relatively wide.

The dimension of the area affected by a rocket attack (the area of potential impact of the rockets combined with the blast/fragmentation zones of the individual rockets) is a function of many variables, including fuzing, ballistic and firing technique-related factors. As that area can be very wide, the use of Grad rockets in populated areas carries a high risk of harm to civilians. Read the rest of this entry…

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The ECtHR Finds the US Guilty of Torture – As an Indispensable Third Party?

Published on July 28, 2014        Author: 

The recent rulings by the European Court of Human Rights in two cases concerning secret detention in Poland are remarkable, not the least because their bold approach in respect of human rights violations committed by a third party, in this case the United States of America. Of course, the US is not a party to the European Convention on Human Rights and was not a participant in the proceedings. In both cases Poland was found to have violated a number of ECHR provisions, including articles 3 and 5, by hosting a CIA black site and by otherwise participating in the US programme of secret detention and extraordinary renditions.

In paragraph 516 of Al Nashiri v. Poland (Application no. 28761/11, Chamber Judgment of 24 July 2014), the Court concludes:

In view of the foregoing, the Court concludes that the treatment to which the applicant was subjected by the CIA during his detention in Poland at the relevant time amounted to torture within the meaning of Article 3 of the Convention (…).

The same conclusion appears in paragraph 511 of Husayn (Abu Zubaydah) v. Poland (Application no. 7511/13, Chamber Judgment of 24 July 2014). Immediately after the finding on torture by the US, the Court makes its finding in respect of Poland (Al Nashiri para. 517).:

Accordingly, the Polish State, on account of its “acquiescence and connivance” in the HVD Programme must be regarded as responsible for the violation of the applicant’s rights under Article 3 of the Convention committed on its territory …

One may ask whether the ECtHR through its formulations in paras. 516-517 created a situation where the US was an indispensable third party, to the effect that the finding in respect of the lawfulness of conduct by the US was a prerequisite for a conclusion in relation to Poland, even if the Court obviously did not consider the US participation in the proceedings (or consent to its jurisdiction) to be indispensable.

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The ECtHR and the Regulation of Transnational Surrogacy Agreements

Published on July 25, 2014        Author: 

ivana6-1Ivana Isailović is a post-doctoral researcher at the Perelman Center for Legal Philosophy (Université libre de Bruxelles) and is affiliated with the IAP, Human Rights Integration Project.

In a number of recent cases, French courts refused to give effect to US court decisions that recognized French intending parents as legal parents of children born through surrogacy agreements and to inscribe the foreign filiation into the French civil status registry. In the decisions in Mennesson v. France and Labassee v. France, the European Court of Human Rights (ECtHR) ruled that those refusals violated children’s right to private and family life, protected by article 8 of the European Convention on Human Rights. It dismissed claims based on the breach of parent’s right to private and family life and on violations of article 14 (non-discrimination), article 6-1 (right to a fair trial) and article 12 (right to marry).

This is the first time the ECtHR has considered the question of transnational surrogacy. The decisions tackle some of the vexing issues related to the regulation of the booming global surrogacy market. These issues include ethical and political concerns related to the commodification of the body. Also in question are the definitions of citizenship and parenthood in a context in which the differences between domestic regimes illustrate a variety of cultural and political understandings of filiation and parenthood. This post focuses on the latter set of issues and the legal uncertainties they create.

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The Downing of MH17 and the Potential Involvement of International Courts

Published on July 22, 2014        Author: 

I do not at all want to trivialize the human tragedy that is the downing of Malaysia Airlines flight MH17 over Ukraine last week, nor for that matter the parallel unfolding tragedies on the ground in Ukraine and in Israel and Gaza, by engaging in some premature lawyerly analysis. But, in reading on the unfolding story of the aircraft’s demise, I nonetheless couldn’t help but think how that story is very likely to find its epilogue in an international courtroom. The facts of MH17′s destruction are obviously far from clear, and are not going to become much clearer in the near future, but the number of possible scenarios is limited – the aircraft was (most likely) destroyed by Ukrainian rebels with Russian-supplied weapons, or (less likely) by either Ukranian or Russian state agents (who may have acted ultra vires). And not only did the downing of MH17 deepen a major existing international crisis, but it directly affected a number of states other than Ukraine and Russia, such as Malaysia and the Netherlands, not to mention the families of the victims themselves. This raises both the incentives and the opportunities for international litigation, in addition to whatever proceedings may ensue before domestic courts or international fact-finding missions.

Consider, first, the possibility that a case or cases regarding MH17 might end up before the European Court of Human Rights. Both Russia and Ukraine are of course parties to the ECHR, and readers will recall that one of the first acts of the new government in Kiev in response to the Crimea crisis was to lodge an inter-state application against Russia in Strasbourg, on which the Court ordered provisional measures. It is perfectly possible for the downing of MH17 to be an issue in the existing or a new inter-state case, or indeed one brought by a third state, such as the Netherlands, since the majority of the victims had Dutch nationality. And obviously the families of the victims may also bring individual applications against either Russia or Ukraine.

In addition to whatever direct involvement these states may have had in the destruction of the aircraft, they could also be held liable for other internationally wrongful acts. For example, Ukraine could be responsible for failing to secure the right to life of the victims and failing to comply with its substantive positive obligations under Article 2 ECHR by deciding not to close the relevant airspace for civilian traffic. Russia could be held responsible for providing the rebels with anti-aircraft weaponry without sufficient safeguards (e.g. appropriate training of the missile crews), thus creating the risk that this weaponry could be used against civilian targets. Both states could be held responsible for failing to secure an effective investigation into the incident. Obviously the facts could yet develop and some very complex preliminary issues could arise (e.g. the extent of Russia’s control over the Ukrainian rebels and the question of the ECHR’s extraterritorial application), but all these points seem arguable.

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From Targeted Sanctions to Targeted Settlements: International Law-Making Through Effective Means

Published on July 22, 2014        Author: 

2014.08.06.Marijanew pictureMarija Đorđeska, LL.M., is a Thomas Buergenthal Scholar and an S.J.D. Candidate at the George Washington University Law School, in Washington D.C.

The U.S. Office of Foreign Assets Control of the Department of Treasury (OFAC) has again shocked the international financial community with a recent settlement with BNP Paribas, France’s largest financial institution. BNP Paribas was accused of violating U.S. sanctions against Iran, Sudan, Burma and Cuba from 2005 to 2012. For $8.9 billion in compensation – the priciest settlement to date – OFAC pardoned BNP Paribas and its subsidiaries from their civil liability under U.S. law. (Settlement Agreement [30], see also Enforcement Information for June 30, 2014).

OFAC is aggressively and effectively applying U.S. sanctions law to foreign institutions incorporated and doing business abroad, without taking into consideration foreign domestic legal regimes or international standards. French President François Hollande expressed his disapproval of the penalty imposed on BNP Paribas. The settlement should also cause concern among European and international lawyers, as BNP Paribas is the ninth European financial institution to be sanctioned since 2006 for processing funds for entities subject to U.S. sanctions. By threatening to cut off foreign financial institutions from the U.S. market, OFAC precludes these financial institutions from publicly and transparently arguing their case in legal proceedings (Settlement Agreement [31]). OFAC is establishing a precedent of a new, efficient, and not yet legal method for asserting U.S. laws abroad, bypassing the traditional territoriality principle of jurisdiction.

In the documents that are publicly available, OFAC does not mention any legal grounds on which it claims jurisdiction, leaving it unclear on what basis the U.S. can sanction transactions initiated abroad by foreign entities or the clearing of US dollars outside the U.S. (Factual Statement [34]) or regulate foreign exchange transactions (Settlement Agreement [12, 13]). Because the settlement negotiations were not made public, and BNP Paribas also waived its right to “any possible legal objection,” (Settlement Agreement [31]) the substantive public debate on the issue is necessarily limited.

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OHCHR Publishes Report on Surveillance and Privacy in the Digital Age

Published on July 18, 2014        Author: 

Readers will recall that in its resolution on the right to privacy in the digital age the UN General Assembly had requested the Office of the High Commissioner for Human Rights to prepare a report for the next GA session on the various issues raised by mass electronic surveillance and the human right to privacy (see here for our previous coverage). An advance edited version of that report (A/HRC/27/37) is now available here. The report is rich, thoughtful and very much pro-privacy in the surveillance context, albeit not in a blind, fundamentalist way. It reaffirms that the right to privacy, as set out in Article 17 ICCPR or Article 8 ECHR, provides a framework within which the legality of surveillance measures needs to be assessed. While it acknowledges the legitimate governmental interests that surveillance may serve, it finds the existing institutional and legal arrangements in many states wanting and in need of further study and reform. Here are some of the highlights:

- It is important to consider linkages with other possible human rights violations, e.g. the collection of intelligence through surveillance that is later used for an unlawful targeted killing (para. 14).

- Interferences with the privacy of electronic communication cannot be justified by reference to some supposedly voluntary surrender of privacy on the Internet by individual users (para. 18).

- Collection of communications metadata can be just as bad in terms of privacy interference as the collection of the content of the communication (para. 19).

- Because of the chilling effect of surveillance: ‘The very existence of a mass surveillance programme thus creates an interference with privacy.’ (para. 20).

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Two Articles on the Relationship between IHL and IHRL

Published on July 14, 2014        Author: 

Readers interested in my four scenarios on the relationship between international humanitarian law and international human rights law who want to know how I would decide them, as well as those who’ve read coverage of the Serdar Mohammed v. MoD judgment, might also be interested in two companion articles I recently posted on SSRN. The first is called Extraterritorial Derogations from Human Rights Treaties in Armed Conflict. In a nutshell it argues that states can and should resort to derogations from human rights treaties in extraterritorial situations, for example that the UK could have derogated (but chose not to) from the ECHR with respect to situations in Iraq and Afghanistan. The second piece is entitled The Lost Origins of Lex Specialis: Rethinking the Relationship between Human Rights and International Humanitarian Law and it mainly deals with the genesis of the lex specialis principle and analyses the three different conceptions thereof. The abstracts are below the fold, and comments are as always welcome.

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Four Scenarios on the Relationship between IHL and IHRL

Published on July 9, 2014        Author: 

The issue of the relationship between international humanitarian law and international human rights law is often mixed together with other difficult questions of international law. This is not very conducive to conceptual clarity. One way of advancing that clarity is to construct hypotheticals which isolate as many of the various issues as possible, so that we can through a thought experiment better appreciate both how they operate individually and how they interact with one another, and move through them carefully, step by step, while resisting the temptation of introducing further complicating considerations.

In this post I’ll present four such (not so) hypothetical scenarios. These are the quintessential hard cases: they all deal at least with an apparent conflict between IHRL and IHL with regard to the use of lethal force and preventive security detention without judicial review. This is not to dispute that in the vast majority of other situations IHRL and IHL would be complementary. My reason for focusing on the hard cases is that they allow us to address more clearly conceptual questions such as the nature and utility of the lex specialis principle.

Scenario 1: NIAC

State A is a party to both the ICCPR and the ECHR. A non-international armed conflict is taking place on its territory, between the state’s forces and those of a non-state actor, B, an organized armed group. The constituent elements of the NIAC threshold are met beyond any doubt. In an operation during the dead of night, A’s forces kill a dozen of B’s fighters sleeping in a barracks (e.g. by shelling it from a distance), presumably doing so in complete accordance with the applicable IHL rules on targeting. From the facts on the ground, however, it was clear that A’s forces were perfectly capable of capturing B’s fighters had they wanted to do so, with little or no risk to A’s own soldiers. Indeed, B’s fighters sleeping in an adjacent barracks were captured and detained by A as threats to state security for the duration of the NIAC, without criminal charge, and without any judicial review of the legality of the detention.

Questions:

1)     Do the ICCPR and the ECHR apply in principle to the killing and detention of B’s fighters, i.e. did these individuals have human rights vis-à-vis A? Assuming that the answer to this question is yes:

2)     Was the killing of B’s fighters lawful under Article 6 ICCPR? Why or why not?

3)     Was the killing of B’s fighters lawful under Article 2 ECHR? Why or why not?

4)     Was the detention of B’s fighters lawful under Article 9 ICCPR? Why or why not?

5)     Was the detention of B’s fighters lawful under Article 5 ECHR? Why or why not?

6)     Would a derogation under either treaty be permissible, and if so would the prior existence of a derogation have any impact on the analysis under questions 2-5?

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S.A.S. v France: Living Together or Increased Social Division?

Published on July 7, 2014        Author: 

On 1 July, the European Court of Human Rights (ECtHR) has delivered, in a public hearing, its judgment in the case of S.A.S. v France. This case is a challenge of the French legislation prohibiting the wearing of face-covering clothing in all public spaces. In a post on this blog, Stephanie Berry discusses the case and points out a number of positive developments, including the balanced and well-reasoned nature of the judgment, the rejection of the gender equality and human dignity arguments for the burqaban, as she refers to the French law, and the consideration that this ban was not necessary for public safety in the absence of concrete evidence. However, Berry criticises the ECtHR for accepting that the ban pursues the legitimate aim of ‘living together’ under the ‘protection of the rights and freedoms of others’. Berry points out that this concept pursues a distinctly assimilationist agenda. I agree with Berry that this is a worrying development. In this post, I examine this concept of ‘living together’ in more detail and explain why this is such a worrying development. I will not discuss other aspects of the judgment.

First of all, what does this concept mean? The ECtHR mentions that the ‘Report on the wearing of the full-face veil on national territory’ criticises the wearing of the full-face veil as ‘a practice at odds with the values of the Republic’ and as ‘a denial of fraternity, constituting a negation of contact with others and a flagrant infringement of the French principle of living together’ (para. 17). It also refers to the explanatory memorandum to the relevant law, which states that ‘the wearing of the full veil is the sectarian manifestation of a rejection of the values of the Republic’; that ‘the voluntary and systematic concealment of the face is problematic because it is quite simply incompatible with the fundamental requirements of “living together” in French society’; and, that it ‘falls short of the minimum requirement of civility necessary for social interaction’ (para. 25). The French Government stated that one of the aims of the law was the observance of the minimum requirements of life in society because the face plays a significant role in human interaction, and the effect of concealing one’s face in public places is to break the social tie and to manifest a refusal of the principle of ‘living together’ (para 82, and for a similar argument from the Belgian government: para. 87).

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