In a previous post, I argued that the European Union would violate its WTO obligations under the WTO Anti-Dumping Agreement (ADA) if EU anti-dumping investigators will continue to apply ‘non-market economy’ (NME) treatment of Chinese exports in AD investigations under the EU Anti-Dumping Regulation (ADR) after December 11, 2016. It is on that day that Art.15(a)(ii) of China’s Accession Protocol (CAP) expires. Until that date, Art.15(a)(ii) provides WTO members with the right to use non-standard price comparison methodologies to determine whether and to what extent Chinese exports have been ‘dumped’ onto a third country market. The provision has served as a legal basis for a highly effective trade defense remedy that allows for the imposition of extraordinarily steep anti-dumping duties against Chinese exports, and Chinese exports of steel products and solar panels in particular. After the expiration of the said provision, the adoption of EU AD measures against China that are based on the use of non-standard price and cost comparison methodologies will be highly vulnerable to legal challenge in WTO Dispute Settlement (DS) proceedings in Geneva. This conclusion, however, does not prejudge the legality of AD measures that the EU has (or will have) adopted against Chinese producers prior to the December deadline. The question about the post-2016 legality of already existing EU AD measures that are “not based on a strict comparison with domestic prices or costs in China” (Art.15(a)(ii) CAP), is particularly relevant in context of the rising amount of new EU AD measures and investigations against Chinese producers of steel and solar panels that the EU has imposed and initiated in the last 18 months. It is this very question that is subject to analysis in this post.
Last week the UN Human Rights Committee delivered an important decision in Mellet v. Ireland, finding that, as applied to the claimant, the Irish ban on abortion violated several articles of the ICCPR. This was because the ban extended even to pregnancies, like the claimant’s, where the foetus was diagnosed with a fatal abnormality, so that it would either die in utero or shortly after delivery. The claimant was thus forced by Irish law to choose between carrying the baby to term, knowing that it would inevitably die in her womb or immediately after birth, or having to travel to the UK to get an abortion. The claimant chose the latter option, at great personal expense and with a lot of pain and indignity along the way, including having the ashes of her baby unexpectedly delivered to her by courier a few weeks after the abortion.
The Committee was unanimous on the bottom line of the case, which is that the abortion ban, as applied to the claimant, constituted cruel, inhuman or degrading treatment in violation of Article 7 of the Covenant, as well as a violation of her right to privacy under Article 17 of the Covenant. While the reasoning of the Committee is at times laconic (as is unfortunately the norm with its views), the basic idea behind the decision was essentially that even if the claimant’s rights were subject to an implicit or explicit balancing exercise, in light of the fact that her unborn child would inevitably die there was nothing to balance with the intrusions into her own interests. In other words, Irish law forced her to endure significant suffering for no real purpose, since the unborn child would die anyway.
The Committee’s views in this case are thus confined to its specific circumstances; it has not created a right to abortion on demand or asked Ireland to liberalize access to abortion fully, but to (at the very least) create an exception to its ban that would accommodate women in the claimant’s situation. The main problem here is that the Irish abortion ban stems from a constitutional provision, which was interpreted by the Irish Supreme Court as only allowing for an exception if there is real risk to the life, but not to the health, of the mother. Ireland can thus comply with the Committee’s recommendation only if the Supreme Court revisits the issue and carves out another exception, or if the Constitution itself is amended, which requires a popular referendum. In other words, this is one of those rare cases where domestic constitutional provisions as authoritatively interpreted by domestic courts are themselves violative of international human rights law; this does not change anything as a matter of international law, but clearly it creates specific political challenges for compliance (cf. the Sejdic and Finci judgment of the Strasbourg Court). See more on this point in this post by Fiona de Londras on the Human Rights in Ireland blog; this post by Mairead Enright has more analysis of the Committee’s decision.
ECHR Jurisdiction and Mass Surveillance: Scrutinising the UK Investigatory Power Tribunal’s Recent Ruling
Last week, as discussed in a post by Marko Milanovic, the UK Investigatory Powers Tribunal (IPT) ruled that it lacked jurisdiction under the European Convention of Human Rights (ECHR) to adjudicate Article 8 and 10 claims brought by persons “situated outside” of the UK (para. 60). The IPT is a specialised judicial body that hears complaints about surveillance by public bodies, including British security and intelligence agencies. IPT decisions are not subject to direct appeal in the UK. We are therefore likely to see this ruling quickly challenged before the European Court of Human Rights (ECtHR).
The backdrop to this litigation is convoluted. I sketch out the context in this post as I believe it will enrich discussion of the jurisdictional issues which are at the heart of this dispute. In 2013, following the Snowden disclosures, Privacy International, together with nine other NGOs, filed a case before the IPT challenging two aspects of the UK’s surveillance regime. First, the claimants challenged UK access to the communications of persons located within the UK collected by the US National Security Agency (NSA) under PRISM and Upstream. Under PRISM, the NSA collected data from US companies including Yahoo and Google. Under Upstream, the NSA intercepted data in bulk from hundreds of undersea fibre optic cables. Second, the claimants challenged Tempora, the British counterpart to Upstream, under which the Government Communications Headquarters (GCHQ) intercepted data in bulk from over 200 cables landing in the UK.
In February 2015, the IPT found that US-UK intelligence sharing – pursuant to PRISM and Upstream – was unlawful prior to 5 December 2014 because the legal framework governing it was hidden from the public (according to the IPT, that framework was sufficiently disclosed over the course of the proceedings so as to render the sharing of intelligence legal from that point forward). Read the rest of this entry…
The Relationship between International Humanitarian Law and Human Rights Law in the African Commission’s General Comment on the Right to Life
In November 2015, the African Commission on Human and Peoples’ Rights (African Commission) adopted General Comment (GC) no. 3 on the right to life. The GC deals with a variety of issues surrounding the right to life, inter alia the death penalty, use of force in law enforcement and armed conflict, investigations and accountability, and extraterritoriality. The GC also considers the relationship between the African Charter on Human and Peoples’ Rights (ACHPR) and international humanitarian law (IHL):
“32. In armed conflict, what constitutes an ‘arbitrary’ deprivation of life during the conduct of hostilities is to be determined by reference to international humanitarian law. This law does not prohibit the use of force in hostilities against lawful targets (for example combatants or civilians directly participating in hostilities) if necessary from a military perspective, provided that, in all circumstances, the rules of distinction, proportionality and precaution in attack are observed. Any violation of international humanitarian law resulting in death, including war crimes, will be an arbitrary deprivation of life.”
This statement is interesting in respect of three elements: the concept of ‘arbitrariness’ with regard to acts of deprivation of life in armed conflict; the interpretive principle employed to connect the ACHPR and IHL; and the legal consequences arising from IHL violations when human rights law also applies. Before taking a closer look at all these points, it should be clarified that the conclusions drawn concern the IHL and human rights obligations of States, and do not necessarily extend to those of non-State actors.
Arbitrary Deprivations of Life in Armed Conflict
In the first place, the African Commission asserted that to determine whether a deprivation of life is arbitrary in armed conflict – and therefore in violation of Article 4 ACHPR – it is necessary to make reference to IHL. Such a stance echoes the International Court of Justice’s (ICJ) dictum in the Nuclear Weapons advisory opinion (para 25). The relevant rules the African Commission identified are those concerning the use of force against individuals and the principles of distinction, proportionality and precautions in attack, which apply in both international and non-international armed conflicts (Articles 48, 51, 57 AP I; 13 AP II; CIHL Study). That the protection of the right to life in connection to hostilities requires taking IHL rules into account has long been affirmed by human rights treaty bodies, particularly the Inter-American Commission and Court (inter alia IAComHR Abella, para 161; IACtHR Santo Domingo Massacre, paras 211‒236; also HRCtee Draft GC 36, para 63). Thus, the African Commission’s GC 3 consolidated an established interpretive trend, according to which IHL provides the yardstick to evaluate when use of force in the conduct of hostilities amounts to arbitrary deprivation of life in violation of relevant human rights norms.
The Principle of Systemic Integration
The second point worthy of note is that the African Commission refrained from invoking lex specialis to read the interplay between IHL and human rights law. Lex specialis, both an interpretive principle and a conflict-solution technique, indicates that:
“if a matter is being regulated by a general standard as well as a more specific rule, then the latter should take precedence over the former” (ILC Fragmentation Report, para 56).
The ICJ employed it to contend that either an IHL specific norm (Nuclear Weapons, para 25) or IHL as a legal regime (Wall, para 106) is lex specialis with regard to human rights law. The lex specialis principle has been at times employed by the Inter-American Commission (inter alia Coard, para 42; Gregoria Herminia, para 20), whereas none of the other international bodies have resorted to it. Notably, the ICJ did not invoke it in a successive case where it dealt with the interplay between the two bodies of law (Armed Activities, para 216).
Commentators have extensively analysed, debated and criticised the use of lex specialis in relation to the interaction between IHL and human rights law (inter alia Prud’homme; Hampson, 558‒562; Milanović, Ch 5). Interestingly, some scholars highlighted that in Nuclear Weapons the ICJ did not actually employ lex specialis, but rather another principle of interpretation: systemic integration (d’Aspremont and Tranchez, 238‒241; similarly Gowlland-Debbas, 361). This principle, which is found in Article 31(3)(c) VCLT, provides that in the interpretation of a treaty:
“[t]here shall be taken into account […] any relevant rules of international law applicable in the relations between the parties”.
I find this viewpoint particularly convincing. When the ICJ stated that:
“[t]he test of what is an arbitrary deprivation of life […] falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict” (Nuclear Weapons, para 25),
it actually made use of systemic integration under the guise of lex specialis (d’Aspremont and Tranchez, 238). Indeed, it interpreted a human rights provision taking into account IHL rules, which is an application of the principle of systemic integration.
International bodies have constantly employed this principle to connect IHL and human rights law rules. They have done so implicitly (HRCtee GC 31, para 11), or by expressly invoking Article 31(3)(c) VCLT (IAComHR Molina, para 121; ECtHR Hassan, para 102), or on the basis of equivalent provisions included in their constitutive instruments, such as Article 29 ACHR (IACtHR Ituango Massacres, para 179) or Articles 60‒61 ACHPR (AComHPR DRC v Burundi et al, para 70). In GC 3, the African Commission followed the same path:
“During the conduct of hostilities, the right to life needs to be interpreted with reference to the rules of international humanitarian law.” (para 13).
It thereby confirmed that systemic integration, not lex specialis, is the appropriate interpretive principle to operationalise the relationship between norms of IHL and human rights law.
Concurrent Violations of IHL and Human Rights Law
The last point concerns the closing sentence of the above-quoted passage, in which the African Commission affirmed that an attack causing death in violation of IHL rules amounts to an arbitrary deprivation of life. This is a remarkable statement. For the first time, a human rights treaty body made it explicit that, when human rights law norms are placed in the background to favour the application of IHL norms, a breach of the latter entails a violation of the former. A similar reasoning may be found in the Human Rights Committee’s Draft GC 36 (para 63), not yet adopted, whereas it could only be inferred from previous case law (IACtHR Santo Domingo Massacre, paras 230, 237; ECtHR Hassan, para 105, with reference to the right to personal liberty). This constitutes the logical conclusion of the interpretive choice according to which the arbitrariness of a deprivation of life in armed conflict is to be determined with reference to IHL. Of course, the presupposition is that an act is simultaneously in breach of IHL and human rights law. The use of dum-dum bullets, for example, violates IHL but not necessarily human rights law.
In my opinion, it is possible to extract a more general principle concerning the relationship between rules of IHL and human rights law. In instances of norms competition, when a prohibitive human rights law norm is placed in the background in favour of a permissive IHL norm, a violation of the prevailing IHL norm entails a corresponding violation of the background human rights law norm. The result is that the latter re-emerges, bringing along relevant normative consequences. I will just consider here the implications this has for the right to a remedy.
Remedies in Armed Conflict
Individual reparations claims for alleged IHL violations often fail when directly brought in a State’s domestic courts (e.g. Varvarin case). This owes to the uncertainty surrounding the right to reparation under IHL. Articles 3 HC IV, 91 AP I, and corresponding customary rules provide that a State must pay compensation for the breaches of IHL it is responsible for. Several scholars contend that these norms grant victims a right to reparation directly enforceable at domestic level (Kalshoven, 835‒836; Zegveld, 512). State practice and case law is inconsistent in that regard, yet most domestic courts tend to deny such an entitlement to individuals (for an account, CIHL Study, 544‒545; Henn, 617‒623). However, when a breach of IHL also results in a violation of human rights law, victims may seek redress on the basis of the latter.
All major human rights treaties include a provision concerning the right to an effective remedy (e.g. Articles 7(1)(a) ACHPR; 2(3) ICCPR), which translates to a State obligation to provide individuals with both procedural and substantive domestic remedies (AComHPR GC 3, para. 7). Victims may seek redress for human rights violations first in domestic courts and, if that fails and where possible, with the relevant human rights treaty body. The acknowledgment that a breach of the IHL targeting rules resulting in death amounts to an arbitrary deprivation of life opens the way to individuals for obtaining redress for IHL violations via the right to a remedy under human rights law. This may expand even further. The Inter-American Court indeed held that an attack which fails to comply with IHL rules and endangers the civilian population may amount to a breach of the rights to life and personal integrity (Article 4‒5 ACHR), even if nobody is killed or injured (Santo Domingo Massacre, paras 236‒237; similarly HRCtee Draft GC 36, para 63).
The impact of the African Commission’s GC is possibly manifold. On the international plane, it may encourage other treaty bodies to make similarly general statements, so to consolidate the interpretation that, in the conduct of hostilities, the right to life is not violated as long as relevant IHL rules are complied with. A similar construal may extend to the right to liberty and security detention of civilians in armed conflict (in this vein ECtHR Hassan, paras 105‒106). At the national level, this perspective may persuade judges to consider whether alleged IHL breaches also amount to human rights violations, which would allow victims to bring claims directly in domestic courts. Overall, the African Commission’s GC may constitute a significant contribution to strengthen the enforcement of victims’ right to reparation for both IHL and human rights violations in armed conflict.
Editor’s Note: This is the text of the 2nd Annual British Embassy (The Hague) International Law Lecture, delivered on 23 May 2016 (part two of two). Part one is available here.
The relevance, engagement and application of international law in the domestic space are addressed explicitly and implicitly multiple times every day in the course of advice given to governments, advice that never sees the light of day and the issue in respect of which the advice is given only very seldom becoming the subject of litigation. In the course of such advice, it may be that the source of a legal obligation binding on the State assumes great importance. The issue may be, for example, whether the Government may be impleaded in this or that court or tribunal on the issue in question. The jurisdiction of the court or tribunal may thus bring with it questions about the relevant applicable law.
More often than not, though, the important question for consideration and advice is not the source of the obligation but rather its content. If compliance with the law, rather than defence against a claim of breach, is the issue, the source of the law is irrelevant. The State, or the Government, will be bound by relevant and applicable obligations of law whether they derive from national law or from international law.
Let me give you a tangible example. In 2009, the then UK Prime Minister, Gordon Brown, decided that the Government would produce what became known as Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees. This exercise emerged from the concern that there was no single, publicly disclosable document that set out how UK military personnel and intelligence officers were to proceed when engaging with foreign States on the question of the detention and interrogation of individuals held in foreign custody.
Editor’s Note: This is the text of the 2nd Annual British Embassy (The Hague) International Law Lecture, delivered on 23 May 2016 (part one of two).
My topic is The Supremacy of International Law? I chose the subject unwisely, seduced by the question mark into the thought that there would be scope for erudition on a subject that, for international lawyers, is the touchstone of the authority and effectiveness of our discipline but dismissed or simply ignored by scholars and practitioners of national law – quaintly described by international lawyers as “municipal lawyers” – as being at odds with the reality of national constitutionalism or the sovereignty of parliament. Having thought about it further, and had the opportunity to look into the scholarship on the subject over recent years, I have settled for the more modest task of trying to illuminate a little more the dimensions of a debate that has both philosophical and practical resonance.
As you will all no doubt be well aware, the UK at the moment is in the throes of a great internal debate. It is at root a debate about identity – whether we are and should be part of Europe or are a mid-Atlantic island with a grand history that should see its future role as a stepping-stone, bridging the western cultural divide. It is about who we are and who we want to be, about harkening back and aspiration in an uncertain world.
But, once we scratch the surface, it is a debate about laws, about where they are made and who has the last say. It is about democracy in law, about the connection between the law and those whom it governs. It is not cast in these terms in the public debates and the fear mongering of politicians but it is in substance a debate about the supremacy of international law.
The international law in focus in this debate is an international law of a special kind, most directly in the frame is European Union law, with its doctrines of supremacy, direct application and direct effect, but following close behind is the Strasbourg law of the European Court of Human Rights that, in living instrument fashion, has turned a treaty into a constitution. The font of both is found in traditional instruments of international law, inter-State treaties of a standard setting and coordinating kind. Both have come a long way since the entry into force of their texts, having shaped and fashioned a community on the continent of Europe that looks to some at times more like a federal society than a collection of nation States. And the issue in both cases is who makes the laws and who has the last say. Most acute of these is who has the last say as there is an appreciation, accurately so, indeed an apprehension (in both senses of this word), that, once the ink on the constitution is dry, it is courts that fashion the society that develops thereon. Read the rest of this entry…
This article reflects on Relja Radović’s article “A Comment on Croatia’s Concerns over Serbia’s So-Called “Mini-Hague”.
The major point of contention
As a major point of contention between Croatia and Serbia in the current “jurisdictional debate”, Radović rightly pinpoints Article 3 of the Law on the Organization and Competence of State Authorities in War Crime Proceedings (the “LWC”) (see here) by which Serbia extended its criminal jurisdiction in proceedings for the most serious violations of IHL committed on the territory of the former SFRY (LWC Article 2), regardless of the citizenship of the perpetrator or victim (LWC Article 3). Radović also summarizes Croatia’s objections to LWC Article 3 and the jurisdiction it introduced, which argue that it is incompatible with international law (including international criminal law) and “European standards”, as well as contrary to the very notion and basic principles of universal jurisdiction. For the sake of clarity, it should be noted that LWC Article 2, which introduces the aforementioned territorial extension of the Serbian criminal jurisdiction, and Article 3, which reasserts this extension and simultaneously cuts any links to the citizenship of the perpetrator or victim, must be read in conjunction. However, for the purposes of this article, reference will be made to Article 3 to cover both, as was Radović’s approach.
In his analysis of the dispute, Radović fully and unreservedly accepts the official Serbian narrative, which equates LWC Article 3 to universal jurisdiction as it is commonly understood or – as Radović later in his contribution dubs it – to “real” universal jurisdiction. Namely, according to Radović:
“the contested Article 3 does not, in itself, create Serbian criminal jurisdiction over crimes committed during the Yugoslav conflict based on the universality principle” … but “… this jurisdiction exists independently of the contested Law … and is provided by the virtue of … Article 9 para 2 in conjunction with Article 10 para 3 of the Serbian Criminal Code … regulating “real” universal jurisdiction for international crimes”.
The author therefore concludes that there is no difference between the two (LWC Article 3 and “real” universal jurisdiction), that “it seems that Croatia has totally misinterpreted the whole issue”, and that by opposing LWC Article 3 Croatia is blindly and unreasonably opposing a form of jurisdiction (“real” universal jurisdiction) accepted in criminal legislation in many EU Member States, as well as other States, including Croatia’s own criminal legislation. Read the rest of this entry…
On Friday, 13 May 2016, the UN’s Open Ended Working Group (OEWG), convened pursuant to UNGA resolution 70/33 (7 Dec 2015) and mandated, inter alia, to “substantively address concrete effective legal measures, legal provisions and norms that would need to be concluded to attain and maintain a world without nuclear weapons”, closed its second session with a majority of states calling for negotiations of a legally binding instrument (or instruments) to prohibit nuclear weapons to start in 2017.
Although (or perhaps because) the nuclear-armed states have chosen not to play ball, for the first time in decades, a treaty outlawing nuclear weapons is a real possibility. The OEWG, which will meet for a third time in August to agree on recommendations to the UNGA, and the ensuing tug-of-war in the UNGA’s First Committee in October, offer an historic opportunity for multilateral nuclear disarmament negotiations to take a big step forward. The reframing of nuclear disarmament as a humanitarian concern has been instrumental in generating strong momentum in support of negotiations. This post surveys some of the legal controversies that arose during the OEWG and explains why, from a humanitarian disarmament perspective, a treaty prohibition of nuclear weapons is both imperative and an effective disarmament measure, even without the participation of the nuclear-armed states.
Open to all, the OEWG’s May session has been attended by 100 states, as well as international organizations and civil society representatives, including survivors of the atomic bombings. None of the nuclear-armed states, i.e. the Nuclear Weapon States (NWS) recognized under the 1968 Nuclear Non-Proliferation Treaty (NPT) –China, France, Russia, the UK and the US – nor the DPRK, India, Israel or Pakistan, participated, casting further doubt on the good faith performance of nuclear disarmament obligations by the respondents in the RMI cases pending before the ICJ.
There is general agreement that the ultimate objective is a world free of nuclear weapons. To that end, all states parties to the NPT (and arguably, all states) have a legal duty to “pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament” pursuant to Art. VI, NPT and customary international law. Views diverge, however, on the pathways, means and urgency with which this goal should be attained. Read the rest of this entry…
While various bodies of the UN continuously work on the issue of the human rights law obligations of multinational corporations, the US courts have been grappling with the question as to whether such entities can be held liable for violations before domestic courts. While some observers lamented the death of the corporate liability debate following the 2013 Supreme Court decision Kiobel II, it appears that the discussion is still very much alive. Continuous disagreement among US courts shows that corporate liability for human rights violations is a complicated issue, as a matter of both domestic and international law.
The Arab Bank Case
In December 2015, a panel of the US Court of Appeals (Second Circuit) ruled on the case of Arab Bank, which concerned claims brought against Arab Bank PLC for its alleged role in financing and facilitating armed attacks that took place in Israel between January 1995 and July 2005. The plaintiffs alleged that Arab Bankʹs involvement with payments to the families of ‘martyrs’ incentivized and encouraged suicide bombings and other killings that harmed the plaintiffs. In its judgment, the Second Circuit confirmed the position taken in Kiobel I (2010), in which it held that corporations cannot be held liable under the Alien Tort Statute (ATS, 28 U.S. Code § 1350).
Arab Bank was heard by a different panel of the same Court of Appeals that had issued Kiobel I. The panel struggled in deciding whether to follow the Court’s own precedent (Kiobel I) or the subsequent Kiobel II decision of the Supreme Court. In that much-debated decision, the Supreme Court affirmed Kiobel I, but on different grounds, namely that a presumption against extraterritoriality applies to ATS cases, without discussing the original question of corporate liability. The Arab Bank panel identified several ways in which Kiobel II had “cast a shadow on Kiobel I”. It nevertheless decided to follow its own precedent in Kiobel I and left it to “either an en banc sitting of [the Second Circuit] or an eventual Supreme Court review to overrule Kiobel I”.
In recent weeks, it has been reported (for example, here, here, here and here) that the WTO faces a ‘legitimacy crisis’ in the wake of US opposition to the re-appointment to a second, four-year term of Mr Seung Wha Chang (South Korea) to the Appellate Body. In a joint statement of 12 May, US Permanent Representative to the WTO, Ambassador Michael Punke, and USTR General Counsel Tim Reif declared:
The United States is strongly opposed to appellate body members deviating from their appropriate role by restricting the rights or expanding trade agreement obligations […] The United States will not support any individual with a record of restricting trade agreement rights or expanding trade agreement obligations.
In their view, the Appellate Body member exceeded his powers during his mandate, and breached Art. 3(2) of the Dispute Settlement Understanding, which states that ‘[the] Appellate Body cannot add to or diminish the rights and obligations provided in the [agreements of the WTO].’ In other words, Mr Chang is accused of undue judicial activism.
In response, South Korea has reportedly declared its opposition to the re-appointment of any Appellate Body members. As a result, their number would fall from seven to five by June, since another member, Ms Yuejiao Zhang (China), finishes her second term on 31 May, and the Selection Committee has been unable to propose a candidate that would enjoy the membership’s consensus. All six sitting members of the Appellate Body have publicly supported Professor Chang (see here) praising his ‘independence and integrity’ and voicing their disquiet about the implications of the US position. The USA has chastised this move as another instance of undue judicial interference.
This standoff raises questions of general interest on procedures for the appointment of ‘judges’ Read the rest of this entry…