Breaking news: today the English Court of Appeal unanimously affirmed Leggatt J’s judgment in Serdar Mohammed v. MoD, finding that IHL does not contain authority to detain in non-international armed conflicts. Full (and very lengthy) judgment available here; our earlier coverage is here. Happy to report that some of our earlier posts (three I think) were cited by the Court. Obviously I haven’t yet read all of the decision, but we will have plenty of commentary in the days to follow. I imagine an appeal to the Supreme Court is virtually inevitable.
On 1 July 2015 a group of Russian MPs requested the Russian Constitutional Court (RCC) to check the constitutionality of the Federal Law ‘On ratification of ECHR’, the Federal Law ‘On international treaties’, and a number of procedural norms. According to the applicants,
‘participation in international cooperation should not lead to a breach of human rights or contradict the fundamental principles of the constitutional system. In their view, the contested rules oblige the courts and other state bodies to implement unconditionally ECtHR decisions, even if they contradicted the Russian Constitution. As a result … the person who applies the law is put in an impossible situation, because such a conflict might be insoluble.’
Although the RCC held that the contested norms do not conflict with the Constitution, thus leaving the de jure legal status of the Convention intact, this ruling and its high publicity in Russian media clearly signifies a change in the political attitude towards the implementation of decisions of the European Court.
Position of the Constitutional Court
The Court confirmed that the contested norms do not contradict the Constitution. Thus, the Convention remains part of Russian legal system, according to Article 15 (part 4) of the Constitution. However, the Court reasoned that
‘the participation of the Russian Federation in any international treaty does not mean giving up national sovereignty. Neither the ECHR, nor the legal positions of the ECtHR based on it, can cancel the priority of the Constitution. Their practical implementation in the Russian legal system is only possible through recognition of the supremacy of the Constitution’s legal force.’
There is no revolution in admitting that ‘both the Constitution and the European Convention are based on shared basic values’ and that ‘in the vast majority of cases no conflict between the two documents can appear at all.’ There have hardly been any conflicts since 1998, when Russia ratified the Convention. However, when it comes to interpretation, apparently the position can differ. Read the rest of this entry…
Last September, Erik Fribergh, the Registrar of the European Court of Human Rights, told Government representatives on the Steering Committee for Human Rights (CDDH) that ‘the Court is … not equipped to deal with large scale abuses of human rights. It cannot settle war-like conflicts between States.’ Yet, as Fribergh noted, the Court is increasingly being called on to adjudicate on such situations. Through the two Grand Chamber judgments delivered on 16 June (Sargsyan v Azerbaijan and Chiragov v Armenia) has the European Court entered into the terrain of international conflict resolution?
Both judgments upheld the European Convention rights of families displaced by the Nagorno-Karabakh conflict in the early 1990s, a conflict that created hundreds of thousands of refugees and internally-displaced persons (IDPs) on both sides, and which has remained unresolved in the ensuing decades. Peace negotiations have been held under the auspices of the OSCE ‘Minsk Group’ (co-chaired by France, Russia and the United States), but as the judgments make clear, settlement negotiations have repeatedly failed, due to the uncompromising attitudes of both Governments. The cases are legally important, given the Court’s position on the jurisdictional reach of the Convention, which Marko Milanovic has previously discussed here. They are politically significant too – in emphasising the importance of the two states establishing a property claims mechanism, and giving the parties to the cases 12 months to come back with proposals on redress, the Court has arguably given significant fresh impetus to the resolution of the ‘frozen conflict’.
As readers have pointed out, the Grand Chamber in Lambert has now rectified its error, by amending paragraph 138 so that it now says in respect of Glass that: ‘in its judgment of 9 March 2004 it held that there had been a violation of Article 8 of the Convention’. The excellent blog post by Grégor Puppinck on Lambert nonetheless raises the broader question of the inherent power of international courts and tribunals to reopen their judgments.
All international courts and tribunals have the inherent power, in certain circumstances, to reopen their judgments. It has always been recognized that, as the report of the Advisory Committee of Jurists drafting the Statute of the Permanent Court of Justice, put the matter, although the principle of res judicata is underpinned by the fundamental value that ‘for the sake of international peace [a matter decided] should be considered as finally settled’, ‘[j]ustice, however, has certain legitimate requirements’ (Procès-Verbaux of the Proceedings of the Committee (Van Langenhuysen Brothers 1920) 744).
Man’s justice is not perfect, not even that of the European Court of Human Rights (ECHR). In a striking turn of events, it appears that the Court made a manifest legal error in the well known Lambert judgment (Lambert and others v. France, n°46043/14, Grand Chamber, 5 June 2014) by wrongly referring to its own case-law. In the Lambert case, that Court ruled that the French authorities could stop the artificial hydration and nutrition of Mr Lambert.
Glass v. United Kingdom judgment (n° 61827/00, Fourth Section, 9 March 2004) is one of the most important decisions the Court refers to in Lambert to support its decision. Indeed, the Court quotes Glass five times. In Glass, similarly to in Lambert, the mother of a child hospitalized for respiratory disorders complained about the the medical team’s decision to administer to her minor son, against her will, a high dose of morphine that risked causing his death. The doctors elected to not resuscitate him in the event of a respiratory crisis. Wishing to defend her son’s life, the patient’s mother brought her case to the ECtHR, as in the Lambert case.
In Glass, the Court ruled that: “the decision of the authorities to override the second applicant’s objection to the proposed treatment in the absence of authorisation by a court resulted in a breach of Article 8 of the Convention.” It “unanimously [held] that there [had] been a violation of Article 8 of the Convention.” Under this precedent, doctors should either respect the will of a patient’s parent or obtain an injunction against the parent’s decision. This precedent supports the position of Lambert’s parents. However, in the Lambert judgment the Grand Chamber stated erroneously that, in the Glass judgment, the Court “held that there had been no violation of Article 8 of the Convention.” (Paragraph 138). This error is found in the “general considerations” presenting the case law and supporting the Court’s decision. It is impossible to accurately determine the implications of this error on the Court’s reasoning, but it allows the Grand Chamber to affirm, in support of its own conclusion, that “it did not find a violation of the Convention in any of these cases.” (Paragraph 139). Read the rest of this entry…
Last week I wrote about one particular aspect of the recent Grand Chamber judgments of the European Court of Human Rights in two cases dealing with the aftermath of the Nagorno-Karabakh conflict: Chiragov and Others v. Armenia, no. 13216/05 and Sargsyan v. Azerbaijan, no. 40167/06, namely the Court’s conclusion that belligerent occupation necessarily requires troops on the ground. I also promised a more comprehensive look at the two (very important) judgments, and here it is. The two cases concerned the aftermath in the conflict, in the sense that they dealt with the right of persons displaced by the conflict to access their property (under Article 1 of Protocol 1 to the Convention), rather than with the conflict itself, which was outside the Court’s temporal jurisdiction. That said, there are numerous noteworthy aspects of these two judgments.
First, there is the cases’ basic structure. Both cases were brought by individuals, but there are more than a thousand other applications pending before the Court with essentially the same issues. While these are formally not pilot judgments in the sense the Court uses the term, they are in fact test cases on the basis of which the Court is set to resolve all of the other pending cases, unless the parties choose to settle them first. And while the cases were brought by individuals, they have a strong interstate dimension, not only because of their politically controversial subject-matter, but because Armenia and Azerbaijan both intervened as third parties in the case in which the other state was the respondent (i.e. Armenia intervened in Sargasyan and Azerbaijan in Chiragov). These were, if you will, interstate cases by proxy.
On 18 May, EU ministers agreed on a military operation (EU NAVFOR Med) that could comprise, in its final phase, the boarding, seizure and destruction of suspected migrant smuggling vessels, subject to approval by the UN Security Council. Negotiations before the Security Council appear to have halted until both the Libyan government in Tobruk and the ruling authorities in Tripoli give consent. Meanwhile, a diplomatic source involved in the EU internal talks on the matter stated that a military operation could be decided on 22 June at the Foreign Affairs Council in Luxembourg.
In earlier EJIL talk! posts, Melanie Fink and Sergo Mananashvili argued that a Security Council Resolution would be questionable under the law of the use of force. But a resolution would also raise issues of compliance with refugee and human rights law and thus would produce a norm conflict between a Security Council Resolution and other international law.
The Likely Need to Have Forces Close to the Libyan Shore
Let’s look at the most likely scenarios around the use of force, were the EU move forward and the UN Security Council to approve of the plans.
An earlier EU strategy paper had foreseen ‘intelligence, surveillance and reconnaissance; boarding teams; patrol units (air and maritime); amphibious assets; destruction air, land and sea, including special forces units.’ Since then, the EU’s High Representative for Foreign Affairs and Security Policy, Federica Mogherini, has pointed out that the operation would not include ‘boots on the ground’ in Libya. At the same time, it is clear that EU diplomats seek more than approval to destroy vessels intercepted at sea, and from which all migrants have disembarked. The EU seeks a UN resolution for destroy smuggling vessels before they have departed.
Identifying smuggling vessels before they have departed will be challenging without deploying people on the ground in Libya. Smuggling vessels can clearly be identified as such only at or shortly before the time they are being used for smuggling. Read the rest of this entry…
Yesterday the Grand Chamber of the European Court of Human Rights delivered judgments in two blockbuster cases regarding the aftermath of the Nagorno-Karabakh conflict between Armenia and Azerbaijan: Chiragov and Others v. Armenia and Sargsyan v. Azerbaijan. These are very rich judgments raising many important issues, and I will be writing up more detailed comments shortly. But I first had to share one particular little nugget: the Court has (implicitly!) decided that Israel is not the occupying power in Gaza. How so, you ask?
The New UK Government Wants To Scrap the Human Rights Act. Does the Act Matter, and Can Anything Be Done To Save It?
The quick answers to the above two questions are Yes and Maybe. Despite the statutory framework that devolved power to legislative bodies in Scotland, Northern Ireland and Wales, the UK parliament has the power to repeal the 1998 Human Rights Act (“HRA”). Yet there are significant legal, constitutional and political aspects that will determine the future of the HRA. Before delving into these, it is worth asking why repeal is even on the agenda.
This proposal is not new. The Conservative party promised to repeal the HRA in 2010 and replace it with a British Bill of Rights, but ended up governing in coalition with the Liberal Democrats. A Commission on a Bill of Rights was set up instead, but failed to reach a consensus. In the 2015 manifesto the pledge re-emerged. Having won a majority on the May 7th Prime Minister David Cameron is now pressing ahead. (Also high on his legislative agenda is a referendum on EU membership). The government claims scrapping the HRA would:
- “Break the formal link between British courts and the European Court of Human Rights and make our own Supreme Court the ultimate arbiter of human rights matters in the UK” and,
- “Stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation.”
It also intends to go ahead with a “British Bill of Rights” to:
- “Remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights.”
- “Reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society”, and
- “Ensure our Armed Forces overseas are not subject to persistent human rights claims that undermine their ability to do their job.” This argument will be familiar to readers of recent posts on the second of the two “Fog of Law” reports (2013 & 2015, Policy Exchange).
Readers will see the many legal reasons why most of these aims cannot be achieved by abolishing the HRA, Read the rest of this entry…
Juan Amaya-Castro argues that states’ selective immigration policies are discriminatory, and that this discrimination has been legitimized by international (migration) law. From a legal point of view, this is rather a misperception that confuses differential with discriminatory treatment. The latter is not allowed by contemporary international law as this post will show.
International migration law is not a self-contained legal regime. It is a multi-layered body of law consisting of various international, regional or bilateral treaties and agreements which leave “the alien’s body protected by a varying number of layers (legal regimes) depending upon the sartorial tastes of the State involved” (Richard Lillich, The Human Rights of Aliens in Contemporary International Law, Manchester UP, 1984, 122). Some of the most migrant-protective layers are certainly those provided by international and European human rights law and principles.
As regards migrants’ entry, the UN Human Rights Committee in its 1986 General Comment No 15 noted that the International Covenant on Civil and Political Rights
“does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise”.
This is true also under another core law-making treaty, the European Convention on Human Rights (ECHR), as interpreted by the Strasbourg Court (see below).
Differential treatment of migrants does not always equal discrimination
Migration control measures that differentiate among (prospective) migrants are not automatically unlawful. Whether such state action affecting migrants constitutes discrimination is grounded in the principle of prohibition of discrimination enshrined notably in Article 14 ECHR and in Protocol No. 12 to the ECHR. Non-discrimination grounds indicatively enlisted therein are: “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Read the rest of this entry…