We will have more substantive commentary on the judgment in the week to follow. For now, however, I’ll just note some key paragraphs in the Court’s judgment: para. 58 (inter-temporal law), para. 60 (state acts may be unlawful but still be acts jure imperii), paras 77-78 (no territorial tort exception to immunity for the acts of the armed forces of a foreign state on the territory of the forum state in times of armed conflict; note the Court’s extensive reliance on domestic judgments and those of the European Court of Human Rights), para. 91 (no exception to state immunity merely because a serious violation of IHL or IHRL is alleged), para. 93 (no conflict between a substantive rule prohibiting certain conduct that has the status of jus cogens and the procedural rule establishing state immunity; therefore, no jus cogens override of immunity), paras. 101-102 (immunity does not depend on the availability of an alternative avenue for redress), para. 108 (because immunity is upheld, no need to examine questions whether individuals are directly entitled to compensation for violation of IHL and whether states may validly waive the claims of their nationals in such cases), para. 119 (immunity from enforcement), paras. 130-132 (jurisdictional immunity in exequatur proceedings).

A long-anticipated judgment, and one in which I think the Court both reached the correct result and did so in a well-reasoned decision – but I’m sure it’ll prove controversial nonetheless.

Christian Tams sends along the following announcement.

Frankfurt Investment Law Workshop 2012 – Preferential Trade and Investment Agreements: A New Ordering Paradigm for International Investment Relations? (16-17 March 2012)

For a couple of years, the Frankfurt Investment Law Workshop has been a forum to discuss conceptual issues of international investment law. Following previous events assessing the relationship between Investment Law and General International Law: From Clinical Isolation to Systemic Integration? (see here) and International Investment Law and Its Others (forthcoming 2012), this year’s workshop will explore the growing network of preferential trade and investment agreements (PTIAs) and assess their impact on ordering international investment relations. It will be held in Frankfurt/Main on 16-17 March 2012, immediately following the Frankfurt Investment Arbitration Moot.

The workshop will open with a keynote speech by Professor Raúl Emilio Vinuesa. This is to be followed by panels addressing the interaction between PTIAs and traditional BITs; the impact of PTIAs on the Trade/Investment divide; and the role of regionalism and multilateralism in international investment law.

The event is designed to be a forum for discussion and much room is allocated to debate. Anyone interested in participating should contact Mrs. Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt, RuW, Grüneburgplatz 1, 60323 Frankfurt am Main, Germany (S.Schimpf {at} jur.uni-frankfurt(.)de) by 28 February 2012.

(On a slightly more serious note, we’ll try to have commentary on the judgment as soon as possible).

The International Law Association (ILA) British Branch invites submissions for papers for its Annual Spring Conference on “Security and International Law”, which will be hosted by the University of Nottingham School of Law from 20-21 April 2012.  The theme of the conference is open to broad interpretation in terms of human, political, military, socio-economic, environmental and energy security as well as security issues arising from the operation of international law in territorial and extra-terrritorial spaces, such as the high seas, aerospace, or the Internet. Full details of the Call for Papers are available here. Details of the Pre-Conference MPhil/PhD Workshop are listed in the Call for Papers in the same document.

Submissions for the Annual Spring Conference should be received by 31 January 2012 and expressions of interest for the Pre-Conference by 1 February 2012.

Joanna Harrington is a Professor with the Faculty of Law and an Associate Dean with the Faculty of Graduate Studies and Research at the University of Alberta in Canada.

As I write this post, college instructor and former politico Léon Mugesera has, at last, been placed on a plane to Rwanda by Canadian government officials to face charges of inciting genocide stemming from an inflammatory anti-Tutsi speech delivered almost twenty years ago, and which was replayed during the height of the genocide. (Twitter has been used by Rwanda’s Foreign Minister to confirm that Mugesera is en route to Kigali.) For many Canadians – and many Rwandans – the departure of this accused genocidaire will not be mourned, with many saying that he should never have been admitted into Canada in the first place. But the latest round in the Mugesera saga does raise concerns for the domestic significance, and thus impact, of the individual complaints procedure found replicated in each of the UN human rights treaties, as well as the need for greater transparency and detailed guidance from the UN human rights treaty bodies themselves with respect to the issuance of requests for interim measures.

 The Mugesera saga

After Mugesera’s speech in November 1992, Rwandan authorities did seek the equivalent of an arrest warrant, but Mugesera had fled the country, and by mid-1993, he had secured permanent residence for himself and his family in Canada. Two years later, Canada’s Minister of Immigration and Citizenship commenced proceedings to send Mugesera back to Rwanda, having learnt of the allegations against him. Under Canadian law, a permanent resident (but not a citizen) may be deported if it is determined that before or after being granted permanent residency, the individual committed a criminal act or offence. In this case, the speech was the alleged criminal act that was committed (and not disclosed), with the speech said to constitute an act of incitement to murder, hatred and genocide, and a crime against humanity. Several years of legal proceedings then ensued, culminating with a unanimous Supreme Court of Canada decision in 2005, which also reproduces Mugesera’s speech as an appendix for all to read.

The speech, however, is not what is at issue in the latest installment in the Mugesera saga. What is at issue appears to be the issuance of a request for interim measures by the Committee Against Torture, asking Canada to hold off deporting Mugesera while a claim is pending before the Committee that Mugesera will face torture in Rwanda. (I say “appears to be” as many reports simply state that an amorphous “UN” has asked Canada to hold off deporting Mugesera, which does no favours for the UN’s reputation among its critics, while those reports that specify the Committee Against Torture, do not use the interim measures terminology.) 

Obligations under the Torture Convention

Canada has been a “party” (and not simply a “signatory” despite journalistic reports) to the 1984 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment since 1987, and it is this treaty which brought into being the 10-person body known as the Committee Against Torture. Canada is also one of 64 states that has voluntarily declared its acceptance of the Committee’s competence to “receive and consider” complaints from persons alleging to be victims of Convention violations, as set out in article 22. It is the choice of these 64 states to opt-in to an international process for individual complaints, and it is this voluntary opt-in that provides the international legal basis for the consideration of claims made by individuals within the jurisdiction of Canada, including non-nationals, alleging violations of the Torture Convention. Many of the cases lodged against Canada (and against other states) typically arise within an extradition or deportation context and involve the absolute prohibition found in article 3 on sending a person to another state “where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

For many years, Canadian officials took heed of this prohibition, and Canada’s treaty obligations, by waiting for the situation in Rwanda to improve so as to ensure that there would be no real or probable risk of torture were Mugesera to be returned. After six years of evaluation, Canada had decided that there was no risk, with one of the recent flurry of decisions relating to this case indicating that on 6 December 2011, Mugesera received an 80-page decision outlining why the Canadian government believed that he would not face significant risks if returned to Rwanda (see para 4). There is also mention in the judgment of Rwanda having provided assurances, but no copies of these assurances appear to be publicly available. The most recent twist in the saga was a communication lodged with the Committee Against Torture, with media reports suggesting that the Committee has issued a request to halt the deportation, although again no copy is made publicly available and no notice is posted on the Committee’s website.

Interim measures requests

States, in their wisdom and at their choice when drafting the Torture Convention, gave the Committee Against Torture the power to establish its own Rules of Procedure (see article 18(2)), and the Committee has indeed adopted extensive Rules of Procedure to govern its proceedings (UN Doc. CAT/C/3/Rev.5). Buried within these rules is Rule 114(1), which provides that the Committee “may transmit to the State party concerned, for its urgent consideration, a request that it take such interim measures as the Committee considers necessary to avoid irreparable damage to the victim or victims of alleged violations.”

While wrapped in the niceties of diplomatic language, a request for interim measures is essentially a request for a stay of proceedings while a matter is pending for consideration before the Committee. As I have argued in the past: “Similar provisions can be found in the procedural rules for many international courts, commissions, and committees, and so it is hardly surprising that the [Committee Against Torture] would recognize the need for such a rule to protect the interests of the parties and to facilitate the proper conduct of the proceedings pendente lite. (J. Harrington, “Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee and Requests for Interim Measures of Protection” (2003) 48 McGill LJ 55 at 66.) It’s clearly not good practice to change the situation as between the parties to a dispute, once that dispute has been lodged with the forum that both parties have agreed to use.

Interim measures requests have a protective purpose, to preserve an individual’s life or physical integrity. They are not issued automatically, as a matter of course, (although this was a criticism made against the Committee Against Torture in the past), and many states do abide by interim measures requests in light of their protective purpose and rationale. A quick review of the Committee’s most recent annual suggests that a case has to be made to secure an interim measures request, with only 24 out of 37 requests for interim measures being granted during the most recent reporting period (para. 89). Moreover, as is made plain in Rule 114(3), a state can provide information to rebut the Committee’s request for interim measures, making a convincing case for no request to be issued, or for an interim measures request to be revoked as a result of further information provided to the Committee by the state.

Canada’s response

In the Mugesera case, rather than publicly rebutting whatever grounds underpin the issuance of the yet-to-be-released interim measures request, by using, for example, the material contained in the 80-page decision mentioned in one recent judgment, or by disclosing a copy of Rwanda’s assurances, Canada’s lawyers have opted instead for a form over substance approach. They argue that interim measures requests carry no legal weight and that a treaty ratified by Canada does not have domestic effect unless transformed into domestic law. I call this “form over substance” since it emphasizes the non-binding nature of what takes place within the UN human rights bodies, rather than focusing on whether there is a substantive risk of torture for Mugesera.

It is also a disappointing response, because in the Canadian case touted for the proposition that interim measures requests are not binding for Canada, known as Ahani v. Canada (Attorney General), counsel for the applicant, the Crown and Amnesty International, failed to draw the court’s attention to the turning-point decision of the Human Rights Committee in Piandiong v. Philippines, holding that an indication of interim measures is effectively binding on a state party. For further discussion of Piandiong’s importance, see Gino J. Naldi, “Interim Measures in the UN Human Rights Committee” (2004) 53:2 ICLQ 445-454. The court also failed to consider the view of the Judicial Committee of the Privy Council in Lewis v. Attorney General of Jamaica, (2000), [2001] 2 AC 50, that individuals must be entitled to a stay of proceedings while a petition is pending for consideration before an international human rights body, even when that body is not a court and does not issue judgments, on the grounds of due process. The non-binding nature of the individual complaints procedure before an international human rights body does not ipso facto make the rules governing that procedure to be non-binding. Otherwise, we could ignore all the procedural rules concerning time limits and replies.

Canada’s response also suggests a lack of nuance in reconciling the domestic with the international, with nuance being necessary to give any of the individual complaints procedures before the various UN human rights treaty bodies any real significance within a state. Canada has also previously stated that it “fully supports the important role mandated to the treaty bodies, such as the Committee Against Torture, and gives careful consideration to the interim measures requests issued by them.” Some indication of that careful consideration would be welcome, rather than resorting to form over substance, particularly since Canada has been warned by the Committee when it previously failed to abide by a previous interim measures request that in voluntarily accepting the Committee’s competence to hear individual complaints, Canada is viewed as having undertaken an obligation to cooperate with the Committee in good faith in applying the procedure (see TPS v. Canada).

Whatever one’s views on the merits of the Mugesera claim, a formalistic disregard for an interim measures request sets a poor example for other states who may wish to follow Canada’s path, notwithstanding a strong substantive case showing a real risk to life or limb for an individual.

Criticism for the treaty bodies

But perhaps this lack of state support for interim measures requests also reveals a need for efforts at the international level, including efforts to tighten the grounds for issuing such requests. At the very least, greater transparency is needed from the human rights treaty bodies in order to judge the information being marshaled in support of an interim measures request. There is, however, the concern that some have used an interim measures application as a last-ditch effort to stall for extra time or as an act of grandstanding to obtain publicity for the cause. Last year, the European Court of Human Rights acknowledged what it called “an alarming rise in the number of requests for interim measures” (having experienced a 4000% increase in interim measures requests for 2006-2010), and expressed concern about the “risk that the small minority of applicants who do face a genuine threat to life and limb in the country of destination will not have their cases examined in time to prevent removal.” The Court has also issued a practice direction indicating that applications for interim measures must be individuated, fully reasoned, accompanied by all relevant documentation, including the domestic court decisions, and sent in good time before the expected date of removal. Similar guidance could be developed and relied upon at the UN level.

Complexo Pedagogico, Universidade Eduardo Mondlane,

Maputo, Mozambique

THE QUEST FOR hUMAN SECURITY, PEACE AND DEVELOPMENT: CHALLENGES AND RESPONSES

BACKGROUND AND AIM OF THE CONFERENCE

In anticipation of the 50^th anniversary of the creation of the Organisation of African Unity (OAU) in 2013:

• the African Foundation of International Law (AFIL)
• the Centre for Human Rights, University of Pretoria, South Africa
• the Institute for International and Comparative Law in Africa (ICLA), University of Pretoria, South Africa
• Faculdade de Direito, Universidade Eduardo Mondlane, Mozambique

are pleased to announce a two-day conference on international law in Africa and invite proposals for papers.

This conference aims to provide a forum for reflection on the pan-African organisation in the specific context of human security, peace and development in Africa, and how the OAU/AU has responded to challenges in these areas.

THEMES OF THE CONFERENCE

Presentations at the conference will fall under one of the following four general themes, and may include the following topics:

Day 1  Friday 5 October 2012

 Threats to Human Security by State and Non-State Actors

•  Judicial responses to Mass Violations of Human Rights: the Role of Regional and International Judicial Bodies (ICC, African Commission and Court of Human and Peoples’ Rights)
• Judicial Response to Massive Violations of Human Rights: the Role of Domestic Courts and Universal Jurisdiction

 Development and Human Rights

Theory and Practice of the Right to Development in Africa

• Doha Development Agenda: What is in it for Africa?
• Regional Integration and the African Economic Community, NEPAD and its Peer-Review Mechanism: What Contribution to African Development?

 Peace and Good Governance

• The Responsibility to Protect: the Role of the African Union and the United Nations
• Consolidating Rule of Law and Good Governance through African Instruments
• Strengthening State Institutions as a Response to Internal Conflicts

Day 2  Saturday 6 October 2012

 Towards 50 Years of African Unity (Morning)

• Panafricanism and International Law
• From OAU to AU

 Institutional matters (Late morning)

• Meeting of the African Foundation for International Law (AFIL), with a view to reactivating the African Association of International Law (AAIL)

MOOT COMPETITION (Afternoon)

On the afternoon of 6 October 2012, conference participants are invited to attend the final round of the 21^st African Human Rights Moot Court Competition, in the main auditorium of the Joachim Chissano Conference Centre in Maputo. The Moot Competition, which is the leading human rights education initiative at university level in Africa, brings together students and academics from over 60 African universities each year to argue and debate contemporary human rights issues. The final round opposes the best teams and is presided over by leading international jurists including judges from the African Court on Human and Peoples’ Rights, the International Court of Justice, the International Criminal Court, the Constitutional Court of South Africa and the Chief Justice of Mozambique; as well as other experts from academia and civil society.

PROCESS: POTENTIAL PRESENTERS

•  Those interested in presenting a paper must submit an abstract containing their name, the proposed title and a brief summary of the argument / contribution of the paper (no more than 500 words).

• Abstracts should be sent to adjovi {at} afil-fadi(.)org before 1 May 2012.
• Authors of abstracts selected for presentation will be informed by 1 June 2012.
• A full paper (5,000 to 10,000 words) must be submitted before 1 August 2012 to be translated for the conference file. Inclusion in the conference programme is conditional on the submission of the actual paper before 1 August 2012.
• Each presenter will have 15 – 20 minutes to present their paper. Discussion is encouraged. Papers will be made available to all participants beforehand.
• Presenters may be required to rework their papers after the conference, if necessary, and resubmit final versions for inclusion in a commemorative publication.

For further information, please contact Roland Adjovi at adjovi {at} afil-fadi(.)org or see www.chr.up.ac.za

• the report is critical of the failure to contain piracy in the Indian Ocean; however, it acknowledges that absent further naval resources the only effective way to protect vessels is to allow them to protect themselves – it thus supports the use of armed guards in some cases;
• indeed, the committee notes that UK government policy on armed guards appeared to shift during its inquiry, with the release last December of a Department of Transport policy allowing the use of armed security on UK flag vessels for the first time;
• the committee calls on the government to issue clear guidance on when armed guards may use potentially lethal force, noting that Crown Prosecution Service guidance on self-defence was not drafted with armed security guards in mind (paras 35-37);
• the report includes as appendices transcripts of evidence; of particular interest is the evidence of Major General Buster Howes (head of the EU NAVFOR counter-piracy mission), Sally Healey (Somalia expert) and Paul and Rachel Chandler (piracy hostages – though some of their evidence will remain redacted until such time as no British hostages are being held);
• the committee rejects calls for an international piracy tribunal or an extra-territorial Somali court sitting in Arusha and supports “recent proposals for specialised anti-piracy courts established within regional states under ordinary national law” as the most efficient and practical option (para 92);
• the explanation of how decisions to prosecute and transfers for prosecution operate in practice is enlightening (see paras 102-3 in particular);
• the report urges the government to consider prosecuting those piracy suspects intercepted by the Royal Navy in the UK where no other State will accept the case (para 107) but notes UK law may need clarification/updating (para 84 and n. 162);
• also worth attention are the sections on “solutions on land” (noting that present “[i]nternational capacity to rebuild a Somali state is extremely limited” but supporting “community engagement” as the way forward) and on the UK government response to the Chandler case (recommending a review of procedures and lessons learned); and
• finally, there are a series of interesting tables and graphs in the report, including those at pages 30 (total attacks against shipping compared to successful hijackings), 39 (numbers of ships and hostages held by pirates over time), 53 (pirate prosecutions internationally), 56 (total ransoms paid).

One statistic evident in, but not highlighted by, the report is the success rate of pirate attacks which halved from 2010 to 2011 (see page 30). This piece of good news is probably due to a mix of factors including naval patrolling, improvements in the passive security measures taken by vessels following Best Management Practices and increasing use of armed security. None of these measures, of course, should be seen as a panacea.

*I note the House of Lords also inquired into Somali piracy, reporting on 14 April 2010.