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Home Archive for category "International Law and Domestic Law"

The Palestinian Authority Jury Award: Implications on Liability of Non-States and Damages for Psychological Harm

Published on February 26, 2015        Author: 

The recent jury verdict in the U.S. federal court finding that the Palestinian Authority should pay $655.5 million in damages to American victims of terrorism during the second Intifada has important legal and political ramifications. This post will focus on two questions raised by the verdict. First, on what basis can non-states be obligated to compensate civilians for casualties inflicted by another non-state actor? Second, might we begin to see more courts willing to award damages for psychological harm caused by terrorism?

Regarding the first issue, the verdict leaves open the question whether holding the Palestinian Authority accountable for the deeds of non-state actors implies that the Palestinian Authority should be viewed as a state. Until now, in a number of judgments, U.S. courts have found only that states, and not non-state entities such as freedom movements that possess some characteristics of a state, may bear accountability for material support to non-state actors. However, the verdict could be interpreted as an extension of this jurisprudential line.

Such an interpretation counters arguments by some scholars that the Palestinian Authority might be treated like other non-state actors such as multinational companies. Some legal academics have argued that courts hearing the case on appeal might consider such an analogy. On this view, the Supreme Court’s Daimler AG judgment could serve as a guiding torch. In the Daimler AG case, the US Supreme Court ruled that Daimler AG, a company in Germany, could not be sued in California based on the continuous and substantial business activities in California of Daimler’s US subsidiary, Mercedes-Benz USA. Read the rest of this entry…

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Let Not Triepel Triumph – How To Make the Best Out of Sentenza No. 238 of the Italian Constitutional Court for a Global Legal Order

Published on December 22, 2014        Author: 

The Italian Constiutional Court’s decision no. 238 of 22 Oct. 2014 (unofficial translation into English) already inspired a flurry of comments in the blogosphere (see in EJIL talk! Christian Tams (24 Oct. 2014) and Theodor Schilling (12 Nov. 2014); on the Verfassungsblog amongst others Filippo Fontanelli (27 Oct. 2014); on Opinio Juris Andrea Pin (19 Nov. 2014); on the Völkerrechtsblog Felix Würkert (11 Dec. 2014)).

In that Sentenza, the Corte refused to give effect to the ICJ’s judgment (in) Jurisdictional Immunities of the State (Germany v. Italy) of 3 February 2012, in which the ICJ had upheld the principle of state immunity against allegations of serious human rights violations of German state organs committed during the Second World War.

Sentenza No. 238 is important not only because it concerns the persisting tension between respecting (state) immunity and protecting human or fundamental rights (see for a recent publication Anne Peters/Evelyne Lagrange/Stefan Oeter/Christian Tomuschat (eds), Immunities in the Age of Global Constitutionalism (Leiden: Brill 2015)), but – maybe even more importantly – because it concerns the relationship between international law (in the shape of a judgment by the ICJ) and domestic law, as applied by a domestic (constitutional) court.

Just the latest item in the sequence of domestic courts’ resistance against decisions of international bodies  

The Corte relied on its established case-law on the effects of European Union law, notably on the doctrine of controlimiti in order to erect a barrier to the “introduction” of the ICJ judgment into the domestic legal order: “As was upheld several times by this Court, there is no doubt that the fundamental principles of the constitutional order and inalienable human rights constitute a ‘limit to the introduction (…) of generally recognized norms of international law’ (…) and serve as ‘counterlimits’ [controlimiti] to the entry of European Union [and now international] law” (Sentenza No. 238, in “The law”, para. 3.2.). Read the rest of this entry…

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‘Temporary Exclusion Orders’ and their Implications for the United Kingdom’s International Legal Obligations, Part I

Published on December 8, 2014        Author: 

This is Part I of a two-part post, a modified version of a legal opinion submitted to the UK Parliament’s Joint Committee on Human Rights. This Part discusses the implications of temporary exclusion orders for the UK’s international obligations to British citizens. Part II, to be published tomorrow, will discuss the implications for its obligations to other States.

Introduction

The United Kingdom Government’s recent proposals to introduce a system of ‘temporary exclusion orders’ (TEOs) to be applied to British citizens raise a number of international legal issues, including (a) the responsibility of the State to its citizens; (b) the responsibility of the State to other States; and (c) the responsibility of the State to the international community of States at large when combatting terrorism.

In my view, the proposal for a system of TEOs to be applied to British citizens raises a host of insuperable legal and practical problems.

First, denying entry to the United Kingdom of British citizens suspected of involvement in international crimes or serious crimes of international concern, besides posing potential risks for other States, is likely incompatible with the duties which the State owes to its citizens, with the rights of other States, and with the obligation of the UK to prosecute certain offences (for which concerted international action is required).

Second, at the practical level, there is no reason to suppose that any other State would be prepared to accept the risks incidental to assuming responsibility for excluded British citizens. These risks include the security question – the possible threat to the community of the ‘host’ State – as well as the legal risks which attach to taking responsibility for the individuals concerned, whether or not they are detained. As the United Kingdom now recognizes its duty to admit its citizens on deportation, any potential host State would be well advised to go for this option.

Third, the implementation of TEOs in practice, though speculative at this stage, seems likely also to impede the UK’s ability to fulfil its international obligations to combat terrorism, effectively and in good faith, and the scheme certainly outwith the letter and the spirit of paragraph 6 of Security Council resolution 2178 (2014).

Finally, it is clear, in my opinion, that TEOs will engage the legal rights of those affected, under the common law (including the writ of habeas corpus), possibly under European Union law (cf. the judgments of the Grand Chamber in Rottman v Freistaat Bayern and Zambrano v Office national de l’emploi), and certainly under the European Convention on Human Rights. The ensuing and readily foreseeable litigation will lead to considerable wastage of resources and funds which would be better directed to implementation of the measures identified by the Security Council in resolution 2178 (2014). The TEO initiative, in my view, should be abandoned in the public interest. Read the rest of this entry…

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Security Council Resolution 2178 (2014): The “Foreign Terrorist Fighter” as an International Legal Person, Part II

Published on November 21, 2014        Author: 

This is Part II of a two-part post. Read Part I here.

Res. 2178 is no basis for criminal sanctions

Resolution 2178 is not in itself the basis for criminalising the behaviour it seeks to suppress. On the contrary, it resembles the classic suppression conventions, i.e. international treaties imposing the obligation on contracting parties to prohibit individual forms of conduct in their national law and, where applicable, to criminalise and punish them.

So no foreign fighter-suspect could be tried and sentenced on the legal basis of Res. 2178 alone. But the reason is not, I submit, that a Security Council resolution could never – from the perspective of international law − function as a “lex” in the sense of the principle nulla poena sine lege. The reason is that the “lex” here does not in itself explicitly establish the crime, but on the contrary explicitly asks states to do to, through their domestic criminal law. Res. 2178 makes it amply clear in its wording that it does not intend to establish the criminal offence directly. It may well be that under the domestic law of some countries, the understanding of nulla poena is stricter. However, if we want to uphold a functioning system of global governance, states and scholars must develop an “internationalised” principle of legality that need not consist only in the lowest common denominator but which is informed by values of global constitutionalism.

Previous Security Council resolutions directly addressing individuals

Resolutions combatting terrorism and piracy

Previous Security Council resolutions had not imposed any obligations on terrorists or terror-suspects as such; they addressed only states (for instance, res. 1624 (2005), para. 1(a); res. 1540 (2004) on weapons of mass destruction). The same is true of all UN Security Council resolutions on piracy (e.g., UNSC res. 1838 (2008)). Read the rest of this entry…

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Security Council Resolution 2178 (2014): The “Foreign Terrorist Fighter” as an International Legal Person, Part I

Published on November 20, 2014        Author: 

This is Part I of a two-part post. Read Part II here.

Introduction

At a summit meeting of 24 September in which over 50 government representatives were heard, the Security Council unanimously adopted Resolution 2178 (2014) which foresees measures to contain the travel of and support for persons intending to participate in terror acts, notably against the background of the rise of the group “Islamic State in Iraq and the Levant” (ISIL) and the Al-Nusra front and other affiliates of Al-Qaida.

Resolution 2178 “reaffirms” what previous resolutions since 9/11 had found, namely that “terrorism [normally committed by natural persons] … constitutes one of the most serious threats to international peace and security” (preamble first indent; see previously, e.g., UNSC res. 1368 (2001)). In preamble indent 12, the Council defines a “new threat”, namely the “foreign terrorist fighter threat” which “includes, among others, individuals supporting acts or activities of Al-Qaida and its cells”.

Most paragraphs of the res. 2178 are, in their structure, not novel. They oblige states to adopt measures, and “ensure in their domestic laws” (para. 6) to suppress, combat, prosecute, and penalise the recruiting, organising, transporting, and equipping of individuals travelling for the purpose of perpetrating terrorist acts, e.g. in paras 2, 5, 6, 8. The obligations to criminalise certain behaviour seem, however, quite far reaching as also pointed out by Kai Ambos.

One interesting feature of res. 2178 is that it directly addresses individuals: Operative para. 1 “demands that all foreign terrorist fighters disarm and cease all terrorist acts and participation in the conflict”. The three interrelated questions discussed in this post are whether res. 2178, firstly, creates binding international legal obligations for individuals themselves; secondly, whether (some of) the resolution’s provisions are directly applicable in the domestic order of the UN Member states; and thirdly, whether the non-observance of these individual obligations constitute a crime by virtue of the resolution itself.

International individual obligations flowing from Res. 2178?

The question is whether Res. 2178 is able to impose legally binding international obligations on the individuals addressed. Is the resolution itself the legal basis for an obligation of “foreign terrorist fighters” to desist from forging identity papers, to desist from travelling to the combat field of ISIS, to recruit volunteers, and of course to refrain from committing terrorist acts, and the like? Read the rest of this entry…

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The Tories and the ECHR: Mere Incompetence or Deliberate Deception?

Published on October 7, 2014        Author: 

The Conservative Party in the UK has released a paper entitled ‘Protecting Human Rights in the UK – The Conservatives’ Proposals for Changing Britain’s Human Rights Laws’. This is in the aftermath of David Cameron’s pledge during the Conservative Party conference last week to scrap the Human Rights Act 1998, the domestic statute which transformed the European Convention of Human Rights into UK law, allowing for ECHR rights, as transformed through the HRA, to be directly invoked before and applied by UK courts. This is to be replaced by a ‘British Bill of Rights and Responsibilities’, a draft of which the Tories have pledged to shortly publish for consultation.

The pledge, and the paper, have already provoked a flurry of responses, both in the press and in numerous blog posts (though the best summary is aptly given by the Daily Mash in an article entitled ‘Human rights laws to be replaced by gut instinct‘). Many of these articles and blog posts, including the post here by Martin Browne,  have made a number of important points regarding the impact of such a change in UK law and international law, as well as with respect to devolution and the Good Friday Agreement. This short post aims to simply highlight the impact of the proposed Conservatives’ changes from the perspective of public international law. This impact would be rather minimal, except that the proposed changes will increase the danger of the UK running afoul of its international obligations, of it engaging its international responsibility. That is, of course, unless the real aim is to withdraw from the ECHR.

Read the rest of this entry…

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The ECtHR and the Regulation of Transnational Surrogacy Agreements

Published on July 25, 2014        Author: 

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

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

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

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

Published on July 22, 2014        Author: 

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

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

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

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

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Ending the Forever War: One Year After President Obama’s NDU Speech

Published on May 24, 2014        Author: 

Originally published on JustSecurity.org on May 23, 2014.

May 23, 2014 marked the one-year anniversary of President Obama’s important speech at the National Defense University (NDU) setting forth his proposed framework for post-9/11 counterterrorism strategy.  The President’s historic move in that speech was to call for the eventual repeal of the 2001 Authorization for the Use of Military Force (AUMF) and the end of what I had called at the Oxford Union the “Forever War.” The President cogently summarized why we should reject indefinite war in favor of an “exit strategy” to bring this protracted conflict with Al Qaeda, like all wars, to an end.  Last October, I argued that despite public skepticism, without fanfare, President Obama has made slow but steady progress toward achieving three key elements of his effort to end the Forever War: (1) disengaging from Afghanistan; (2) closing Guantanamo; and (3) disciplining drones.

The latest moment to assess progress in ending the Forever War came on May 21 this year, when as others have noted (see Goldsmith posts here and here; Lederman post here; Human Rights First video here), the Senate Foreign Relations Committee heard testimony from four current and past government lawyers regarding the authorization for use of military force after Iraq and Afghanistan (video): Mary McLeod, Principal Deputy Legal Adviser, U.S. Department of State; Stephen Preston, General Counsel, U.S. Department of Defense; myself (Harold Hongju Koh); and Michael B. Mukasey, Debevoise & Plimpton, former U.S. Attorney General. Putting aside some aggressive questioning, there was far more agreement among all participants than may come through from reading the statements or watching the hearing. I would take away five basic messages.

First, we should keep trying to end the Forever War. Our eventual goal should be to repeal the AUMF. Almost thirteen years after 9/11, it is increasingly problematic to rely on the 2001 AUMF to conduct all of America’s counterterrorism operations.  We should not use a broadly worded 13-year old AUMF text drafted for a prior situation to conduct perpetual armed conflict against a mutating group of terrorist networks.

Second, at the right moment, AUMF repeal would leave no legal gaps. If Al Qaeda can be defeated on the ground, there will come a time when the President will no longer need AUMF authority, because the remnants of Al Qaeda will be better represented by the idea of a “continuing and imminent threat” to which the United States could respond with self-defense authorities than an organized armed group engaged in ongoing conflict of a particular intensity and duration. Only the latter characterization warrants treating the members of Al Qaeda as continual belligerent combatants with whom we remain in daily war. The President would then not need the current breadth of AUMF authority to deal with that group of individuals, because they can be dealt with through other law, particularly as threats who can be addressed by the domestic and international law of self-defense, not as an organized armed group with whom we remain in daily struggle. Read the rest of this entry…

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