A Chamber of the European Court will deliver its merits judgment in Al-Saadoon and Mufdhi v. United Kingdom (no. 61498/08), the case dealing with detention and non-refoulement in Iraq, on Tuesday 2 March (press release here). For our previous coverage, see here and here. For more in-depth analysis of the various issues in Al-Saadoon, such as norm conflict and the UK government’s decision to disregard interim measures ordered by Strasbourg, see here. See also this article by Nehal in the JICJ, and this note in the ICLQ by Sarah Williams and Matthew Cross.

This as hot a case as it gets, and we’ll see what the Chamber does with it. It certainly moved very quickly, since it pronounced on admissibility only in July last year. Whatever the outcome, it is likely that the case will also be referred to the Grand Chamber. Analysis and commentary will follow!

A prize has been established by the Society of International Economic Law (SIEL) and Cambridge University Press for the best essay submitted on any topic in any field of international economic law. The competition is open to all current undergraduate and graduate students and those who have graduated no earlier than five years before the submission deadline. Members of the SIEL Executive Council may not submit entries. The essay may not have been previously published.

 The prize consists of £200, as well as £300 of Cambridge University Press book vouchers and a three year subscription to the World Trade Review. The winning essay will be submitted to the World Trade Review for publication. The deadline for submission is 30 September 2010. For terms and conditions please see www.sielnet.org/essayprize

The International Court of Justice (ICJ) has announced that it is seeking to appoint 6 new Law Clerks for its judges. The additional clerks will make it possible for each judge to have a full time law clerk. The decision by the General Assembly to allocate extra resources to the Court is welcome as the list of cases before the Court continues to grow (see our earlier posts on recent cases here , here, here and here). Until now, ICJ Judges have had to share clerks and have also had the benefit of year long interns which have been paid for by law schools around the world under the Court’s univerity traineeship programme. My own law school at Oxford recently joined this latter programme and now provides one intern to the Court. 

The announcement on the ICJ’s website regarding the new positions says that:

Under the supervision of the judge to whom he or she will be specifically assigned, the Law Clerk will provide such judge with legal research and related assistance with regard to cases pending before the Court. The Law Clerk may also be required to provide legal assistance and support to a judge ad hoc participating in a particular case. In coordination with his or her judge, the Law Clerk may also from time to time be called upon to perform some specific legal tasks for the Registry.

The new positions are at P2 level and will be made for a fixed term of 2 years with the possibility of renewal.

Readers will probably know by now that the ICC Appeals Chamber handed down a decision on February 3 reversing the Pre-Trial Chamber’s 2009 decision not to issue a warrant of arrest for Sudanese President Bashir with respect to the charge of genocide in Darfur. The Pre-Trial Chamber (PTC) issued an arrest warrant with respect to war crimes and crimes against humanity but held that the Prosecutor had failed to satisfy the standard in Art. 58(1) of the Rome Statute that there were “reasonable grounds” to believe that genocide had been committed.  The PTC held that  ”if the existence of a . . . genocidal intent is only one of several reasonable conclusions available on the materials provided by the Prosecution, the Prosecution Application in relation to genocide must be rejected as the evidentiary standard provided for in article 58 of the Statute would not have been met.” As Marko commented  here on EJIL:Talk! at the time, the decision by the Pre-Trial Chamber on this issue was highly problematic as it did not in fact apply a reasonable grounds to believe test but seemed to require proof beyond reasonable doubt. The Appeals Chamber agrees and held that

“In the view of the Appeals Chamber, requiring that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt. If the only reasonable conclusion based on the evidence is the existence of genocidal intent, then it cannot be said that such a finding establishes merely “reasonable grounds to believe”. Rather, it establishes genocidal intent “beyond reasonable doubt”.” (para. 33)

However, the Appeals Chamber did not itself reinstate the genocide charge, but, rather, remanded the matter to the PTC to make a new decision applying the correct standard. 

This is all well and good.  However, I wonder why the Appeals Chamber did not decide to take up the elephant in the room regarding the arrest warrant for Bashir – the issue of whether as a serving head of State he is entitled to immnity from arrest and whether the Court is entitled to order his arrest in the first place.  This is an issue that we have discussed at length here on EJIL:Talk! (see here, here, here and here). Its a matter that has exercised African States and led to a call by the Assembly of Heads of States of the African Union for African States not to cooperate with the ICC with respect to the arrest of  Bashir case.  The length of time taken by the Appeals Chamber to issue a decision in this matter suggested that it was considering a weighty issue (see the excellent post by Prof. Bill Schabas on his blog regarding the time taken by the Appeals Chamber). In the end it came up with a rather brief decision saying what was obvious to most knowlegable observers (though to be fair not obvious to the majority of the PTC). So why that lenghty delay?

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The latest issue of EJIL is now out. The Table of Contents is posted below, but we wanted to draw EJIL: Talk! readers’ attention to the Editorial, which concerns an attempt in France to prosecute EJIL’s Editor in Chief for criminal libel. A link to the full editorial is posted below.

Editorial 20 4

The below Table of Contents is available online at: http://ejil.oxfordjournals.org/content/vol20/issue4/index.dtl

Late last year, we posted some reflections by myself and Elizabeth Prochaska on the pending Canadian Supreme Court case of the Prime Minister & Ors v Omar Khadr.

The court handed down its decision today, allowing the Prime Minister’s appeal in part. The court held that the trial court’s remedial discretion had miscarried and that an order directing the Prime Minister of Canada to seek Khadr’s repatriation was – at least for now – an impermissible intrusion upon the Executive’s prerogative in foreign affairs.

The result is disappointing, from the point of view of those of us who had hoped that the Supreme Court might force the hand of the Harper government by ordering to do what it has steadfastly refused to do – request Khadr’s return to Canada after seven and a half years in GTMO.

However, the decision (which was unanimous) is an interesting combination of deference to executive decision-making on the matter of requesting repatriation, and categorical condemnation of Canadian agents’ complicity in an abusive detention and interrogation regime.

The court held:

[24] We conclude that Canadian conduct in connection with Mr. Khadr’s case  did not conform to the principles of fundamental justice. That conduct may be briefly reviewed.  The statements taken by CSIS and DFAIT were obtained through participation  in a regime which was known at the time to have refused detainees the right to challenge the legality of detention by way of habeas corpus.It was also known that Mr. Khadr was 16 years old at the time and that he had not had access to counsel or to any adult who had his best interests in mind. As held by this Court in  Khadr 2008, Canada’s participation in the illegal process in place at Guantanamo Bay clearly violated Canada’s binding international obligations (Khadr 2008, at paras. 23-25; Hamdan v. Rumsfeld).  In conducting their interviews, CSIS officials had control over the questions asked and the subject matter of the interviews (Transcript of cross-examination on Affidavit of Mr. Hopper, Exhibit “GG” to Affidavit of Lt. Cdr. William Kuebler, March 2, 2005 (J.R., vol. III, at p. 313, at p. 22)). Canadian officials also knew that the U.S. authorities would have full access to the contents of the interrogations (as Canadian officials sought no restrictions on their use) by virtue of their audio and video recording (CSIS’s Role in the Matter of Omar Khadr, at pp. 11-12).  The purpose of the interviews was for intelligence gathering and not criminal investigation.  While in some contexts there may be an important distinction between those interviews conducted for the purpose of intelligence gathering and those conducted in criminal investigations, here, the distinction loses its significance.  Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person and was alone during the interrogations.  Further, the March 2004 interview, where Mr. Khadr refused to answer questions, was conducted knowing that Mr. Khadr had been subjected to three weeks of scheduled sleep deprivation, a measure described by the U.S. Military Commission in Jawad as designed to “make [detainees] more compliant and break down their resistance to interrogation” (para. 4).

[25] This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.

[31] The acts that perpetrated the Charter breaches relied on in this appeal lie in the past.  But their impact on Mr. Khadr’s liberty and security continue to this day and may redound into the future.  The impact of the breaches is thus perpetuated into the present.  When past acts violate present liberties, a present remedy may be required. (more…)

Today was the start of an extraordinary week for assessing the impact international law had on the decision of the US, the UK and their allies in going to war with Iraq in 2003. The UK Iraq Inquiry today heard the testimony of Sir Michael Wood, the Foreign and Commonwealth Office Legal Advisor from 1999 to 2006, and Elizabeth Wilmshurst, the Deputy Legal Advisor at the time of the Iraq war, who resigned from her post once the invasion began (BBC report). Tomorrow the Inquiry will hear the testimony of Lord Goldsmith, at the time the Attorney General , empowered to give authoritative legal advice to the government, who ultimately, after much procrastination and indeed after shifting his own position, ruled the invasion to be lawful. On Friday it will be Tony Blair’s turn.

The Inquiry, which is advised on legal matters by the former ICJ President Rosalyn Higgins (for more, see Dapo’s earlier post), focused on the main legal rationale for the invasion – the so-called revival argument. In brief, this argument posits that Resolution 1441’s finding that Iraq was in material breach of previous Security Council resolution, and Iraq’s failure to take the final opportunity that the UNSC gave it to comply, revived the authorization for the use of force in UNSC Res 678, that was suspended but not extinguished by UNSC Res 687. The Inquiry’s investigation also raises many issues regarding the proper role of government legal advisors, that will be the main subject of this post.

The readers might recall our previous post on declassified memoranda on the lawfulness of the Iraq war by the US Department of Justice Office of the Legal Counsel, which like the Attorney-General in the UK provides authoritative legal advice to the executive. Like Lord Goldsmith, the OLC thought the revival argument to be correct, but it did so with far less caveats than their UK counterpart. On the other hand, it now transpires that the FCO Legal Advisor’s consistent advice had been that the revival argument just does not work on the text of Resolution 1441, which if properly interpreted requires further UNSC action. The Iraq Inquiry website now has several declassified memos and other correspondence from the FCO Legal Advisor to various government officials. (Incidentally, I don’t think that the US State Department Legal Advisor’s memoranda on the Iraq war have been declassified yet, unlike the OLC ones). These documents are invaluable for assessing the decision-making process in the lead-up to the Iraq war.

As Sir Michael’s testimony began, several new documents were declassified and were contemporaneously used by the Inquiry. The one which struck me the most was a letter by Jack Straw, then the Foreign Secretary, to Sir Michael in response to his legal advice that the invasion would be unlawful without further UNSC action, stating the following:

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Peter Danchin is Associate Professor of Law at The University of Maryland Law School.  His recent articles have been published in the Journal of Law and Religion, the Yale Journal of International Law, and the Harvard International Law Journal. His most recent book United Nations Reform and the New Collective Security (with Horst Fischer) has just been published by Cambridge University Press.  In 1999, he served as a foreign law clerk to Chief Justice Arthur Chaskalson of the Constitutional Court of South Africa.

Is there a human right to sufficient or adequate water?  If so, what is the right’s normative basis, its scope and content, and how might this differ in international law, constitutional law, and the domestic law and policy of States?  These were the questions recently before South Africa’s Constitutional Court in Mazibuko v. City of Johannesburg (also known as “the Phiri case”) decided on 8 October 2009, the country’s first test case on the right to water.

The case is of interest for a number of reasons.  First, it is the most recent precedent in South Africa’s closely watched economic and social rights jurisprudence following in the wake of such decisions as Soobramoney (1998), Grootboom (2001), Treatment Action Campaign (TAC) (2002), Modderklip (2005) and Olivia Road (2008).  Second, it sheds critical light on the debate over whether economic and social rights have minimum legal content or a “minimum core” as posited by the UN Committee on Economic, Social and Cultural Rights in its 1990 General Comment No. 3 on the Nature of States Parties’ Obligations.  And third, it provides a useful case study of both the potential and limits of strategic public interest litigation and the justiciability and enforcement of economic and social rights in the national sphere.

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Editor’s Note: This post is part of a series discussing the the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia. Other posts in this series include Gazzini, “Criteria for Statehood as Applied by the EU’s Independent Fact-Finding Mission on the Conflict in Georgia“ , Andre de Hoogh, “Georgia’s Short-Lived Military Excursion into South Ossetia: The Use of Armed Force and Self-Defence” and Zoran Oklopcic’s “Reflections on self-determination, and the status of Kosovo in light of the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia“

Under the heading of ‘rescuing Russians as a case of self-defence’, the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia quite sensibly and with good cause rejects this claim on the part of Russia and observes that attacks on nationals or members of the nation abroad cannot be equated to an attack against the territory of a State. However, in its application to the specific case, it then observes (volume 2, p. 288) that:

“[t]he constitutional obligation to protect Russian nationals (…) cannot serve as a justification for intervention under international law. Domestic law can in principle not be invoked as a justification for a breach of an international legal rule” (italics not in original; the attached footnote 211 then refers to article 26 VCLT, which is probably intended as a reference to article 27 VCLT).

But the Report then surprisingly, not to say shockingly, appears to envisage the possibility that:

“[a]t most, domestic constitutional law could be invoked as a defence against obligations imposed on a state by international law if those obligations contradict core elements of the national constitution” [italics not in original].

 The Report then claims that article 61(2) of the Russian Constitution, which proclaims that “[t]he Russian Federation guarantees its citizens defence and patronage beyond its boundaries”, is not a basic principle of Russian constitutional law.

Aside from the already mentioned fleeting reference in footnote 211 to article 26 VCLT, laying down the principle of pacta sunt servanda, the Report fails to address article 27 which precisely excludes an appeal to internal law as a justification for the non-performance of treaties (the reference in that provision to article 46 VCLT is not relevant for present purposes, as it only allows an appeal to rules of internal law of fundamental importance for the expression of consent to treaties). Nor is any thought given to the provision of article 3 of the Draft on the Responsibility of States for Internationally Wrongful Acts (DSR; cf. also article 32 DSR) which observes “… The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.” Similar provisions have been introduced into the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (article 27(2-3)), and the Draft on the International Responsibility of International Organizations (DIOR, adopted on first reading by the International Law Commission this year (article 31(1) DIOR; inclusion of a provision into the DIOR similar to article 3 DSR has been rejected by the ILC, cf. ILC, Report 2009, pp. 54-55). 

What has moved the drafters of the Report to even consider allowing the invocation by a State of its own constitutional law as a justification for non-observance of international obligations cannot be fathomed. (more…)

Last week, Belgium initiated proceedings in the ICJ against Swizterland in a dispute raising issues of private international law and of the relationship between public international law and private international law. The dispute concerns:

“the interpretation and application of the Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters . . ., and the application of the rules of general international law that govern the exercise of State authority, in particular in the judicial domain, [and relating to] the decision by Swiss courts not to recognize a decision by Belgian courts and not to stay proceedings later initiated in Switzerland on the subject of the same dispute”. [See Press Release here]

The dispute arises out of the parallel proceedings pursued in Belgium and Switzerland by the main shareholders of the former Belgian airline – Sabena (which is now in bankruptcy). Those shareholders included the Belgian State (as well as companies owned by Belgium) and the Swiss airline formerly known as Swissair. After proceedings were brought in the Belgian courts by the Belgian shareholders against the Swiss shareholders, the latter in turn brought proceedings in the Swiss Courts. Belgium asserts that

“the Swiss courts, including in particular the Federal Supreme Court, have however refused to recognize the future Belgian decisions on the civil liability of the Swiss shareholders or to stay their proceedings pending the outcome of the Belgian proceedings. According to Belgium, these refusals violate various provisions of the Lugano Convention and ‘the rules of general international law that govern the exercise of State authority, in particular in the judicial domain’.” [See Press Release here]

It is rare for the court to have to deal with a case that raises issues of private international law but this has happened before – in the case concerning the Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden) (1958). What appears to be particularly interesting about the present case is that it raises issues about the impact of public international law on private international law. This is because Belgium argues that Swiss Courts are under an obligation to stay proceedings brought in that country not only as a result of the Lugano Convention but also because this result is dictated by the rules of general international law relating to jurisdiction. According to Belgium, the failure by Switzerland to stay the proceedings is a breach of ”the rule of general international law that all State authority, especially in the judicial domain, must be exercised reasonably.” 

Belgium has requested that the case be heard by a Chamber of the Court rather than by the full Court. This case is the third to be initated in the ICJ in 2009. Interestingly, the first was also brought by Belgium (against Senegal) [see EJIL:Talk! commentary on that case here, here and here]. The second case brought by Honduras against Brazil has not been entered on the Court’s general list of cases (see EJIL:Talk! commentary here)