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Home Archive for category "International Law and Domestic Law"

Russian Constitutional Court Affirms Russian Constitution’s Supremacy over ECtHR Decisions

Published on July 15, 2015        Author: 

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…

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The New UK Government Wants To Scrap the Human Rights Act. Does the Act Matter, and Can Anything Be Done To Save It?

Published on May 27, 2015        Author: 

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…

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The Human Rights of Migrants as Limitations on States’ Control Over Entry and Stay in Their Territory

Published on May 21, 2015        Author: 

As Juan Amaya-Castro points out, (domestic) migration legislation is about selecting among potential or prospective migrants, i.e. creating two categories of migrants: ‘documented’ or ‘regular’ migrants, whose migration status complies with established requirements, and ‘undocumented’ or ‘irregular’ migrants, whose migration status does not so comply. Where does this leave international law and, as Juan Amaya-Castro calls it, its humanist-egalitarian tradition?

This post will argue that Amaya-Castro underestimates the strict and strong limitations on the sovereignty of states established by international human rights law, international refugee law and international labour law. In particular, states’ discretion in the adoption and enforcement of migration policies is limited by their obligation to respect, protect and promote the human rights of all individuals within their territory and subject to their jurisdiction (UN Human Rights Committee, General Comment No. 15, para. 5). This post discusses some of the far-reaching consequences of this principle, focusing on three types of limitations on state sovereignty with respect to migration: limitations on the prerogative to control entry; limitations on the prerogative to establish conditions for entry and stay; and limitations on the treatment of irregular migrants.

Limitations on the prerogative to control entry

The obligation not to reject refugees and asylum-seekers at the frontier may be an exception to state sovereignty conceptually, but it is far from exceptional in practice, especially in certain European contexts. Of the 19,234 people “intercepted” along EU borders by the joint border control operation Mos Maiorum between 13-26 October 2014, 11,046 people (57%) claimed asylum (Mos Maiorum final report, p. 25). More than a quarter of those “intercepted” were Syrians, followed by Afghans, Eritreans, Somalis, Iraqis – individuals whose need for international protection can easily be argued (ibid., p10).

Nikolaos Sitaropoulos expertly discussed the limitations imposed on states’ sovereign prerogative to control entry and stay by the Council of Europe human rights framework, in particular its obligation of non-discrimination. Outside that framework, the guidance provided by the UN Committee on the Elimination of Racial Discrimination (CERD) is also worth mentioning. In 1998 the Committee criticised Switzerland’s so-called three-circle-model migration policy, which classified foreigners on the basis of their national origin, as ‘stigmatizing and discriminatory’ (UN Doc. CERD/C/304/Add.44, para. 6). Four years later, the Committee expressed concern at the possible discriminatory effect of Canadian migration policies (in particular, a high ‘right of landing fee’) on persons coming from poorer countries (UN Doc. A/57/18, para. 336). On these grounds, this post argues that the general principle of non-discrimination is a limitation to states’ discretion in the adoption and enforcement of all migration policies, including their prerogative to control entry. Read the rest of this entry…

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International Migration Law: License to Discriminate?

Published on May 19, 2015        Author: 

The story of international law and migration commonly begins with the observation that states have the sovereign right to deny access to non-nationals. This statement is then qualified with the observation that there are some exceptions to this rule. Refugees and other people who may run serious risks if returned to their country, or are otherwise expelled, and in some cases people requesting admission on the basis of family reunification, should be allowed access. The sovereign right to exclude is presumed to be inherent and ‘age-old’. That impression is mistaken. Immigration control is a relatively recent phenomenon. Until late in the 19th century, political demographic conditions made population growth desirable, so immigration was welcomed. It was only with the desire to limit Chinese immigration into the US and Australia, a desire motivated by racist considerations, that immigration control and the passport regime became the new ‘normal’, and that the reference to the ‘age old’ sovereign right to control immigration began to gain force.

Recently, a number of countries have made headlines because of innovative immigration policies designed to attract investors and entrepreneurs. Spain, Chile, Canada, and others are now conceiving of immigration policies within the broader context of increasing their economic competitiveness. Many other countries already offer benefits to so-called ‘knowledge migrants’. What makes this new wave stand out is the overt effort to compete with other countries for talent and investment. One could almost forget that fear of immigrants has been the main driving force behind most immigration policies around the world. Although government officials in many countries experiencing immigration may be under pressure to implement policies that bring immigrant numbers down, immigration policies have typically also been made with an eye to economic sectors eager for access to certain workers, whether skilled or unskilled. In other words, immigration policies cater not only to those fearful of (large scale) immigration, but also to those in need of specific forms of labor.

As such, migration law is not just about putting up barriers to migrants but also about selecting among potential or prospective migrants. In the Dutch political context the term of art is kansarm (poor in prospect) or more broadly in public opinion debates kansloos (prospectless). Kansarm even made it into the 2010 coalition agreement, which also exempted so-called knowledge-migrants (kennismigranten) from various measures deemed to make immigration more difficult; the factor used to determine whether someone is a knowledge-migrant is a minimum level of income. Blunt as Dutch political discourse may be, public discourse on immigration in most immigration countries often takes such distinctions for granted. Read the rest of this entry…

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Individual Compensation Reloaded: German Liability for Unlawful Acts in Bello

Published on April 29, 2015        Author: 

On 30 April, the Appeals Court of Cologne will rule on whether Germany has to pay compensation to victims of an airstrike in Afghanistan. Its judgment is likely to consolidate the new German approach to questions of compensation for armed activities which – given the increasing relevance of litigation about armed conflicts – merits a brief treatment.

Background

In 2009, a German colonel ordered an airstrike against two fuel trucks that were stuck on a sandbank near the NATO camp in Kunduz/Afghanistan. Due to the tense situation in Kunduz, he assumed that the fuel or the trucks could be used for a bomb against ISAF units and thus represented an imminent threat. The airstrike caused the death of 142 individuals. Because many among the victims were civilians, it has become the most controversial modern operation involving the German Armed Forces (leading, amongst other things, to the resignation of a minister of government, criminal investigations and the establishment of a parliamentary investigation).

Seeking compensation for damages on the basis of domestic rules of governmental liability (Amtshaftung), victims filed a claim against the Federal Republic of Germany. In 2013, the Court of First Instance in Bonn rejected the claim (for details see my article in the JICJ). Although it held that governmental liability in principle applies to acts in bello, the Court concluded that the colonel did not breach his official duty to comply with international humanitarian law. A press release, summarizing the oral proceedings and the taking of evidence issued in March, indicates that the Cologne Appeals Court intends to uphold the result of the Court of First Instance.

As I have argued elsewhere (see JICJ article, at p 631-633), the legal assessment made by the Court of First Instance is questionable in several respects. Most importantly, it seems that the colonel did not comply with the customary rule encompassed in Art. 57 (2), a (i) AP I. He failed to do everything feasible to verify that the objectives of the attack were neither civilians nor civilian objects. Certainly, the level of precaution necessary depends on the specific circumstances of the attack. However, in this case the fact that trucks had been stuck for seven hours, and thus did not represent an imminent threat, was not sufficiently taken into account. The adoption of the first instance court’s assessment by the Court of Appeals would therefore be problematic.

While the two courts’ interpretation and application of rules of international humanitarian law is highly fact-dependent, a preliminary aspect is of more general relevance, and highlights the particular approach obtaining under German law: on what basis can Germany be held responsible, before domestic courts, for alleged violations of international humanitarian law? Read the rest of this entry…

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OFAC’s Settlement with Commerzbank AG: Coerced Voluntary Settlements of the Competitively Disadvantaged

Published on March 20, 2015        Author: 

Nine months after the Office of Foreign Asset Control’s largest ever settlement with French BNP Paribas (see my previous post), OFAC is striking again. On March 11, OFAC settled for the first time with a German financial institution, Commerzbank AG, for alleged violations of the U.S. sanctions regulations. Commerzbank is the thirteenth foreign financial institution (and eleventh European one) to settle with U.S. authorities (see e.g. OFAC’s Selected Settlement Agreements) for processing electronic funds on behalf of its Cuban, Iranian, Burmese and Sudanese customers, among others. (Settlement Agreement [26-30]). In exchange for Commerzbank’s agreement to pay OFAC $258 million (less than a third of what BNPP agreed to pay OFAC alone), OFAC pardoned the bank of all civil liability in government-initiated cases for its alleged wrongful conduct, thought to have started in 2002. (See Settlement Agreement [39]).

The total amount paid to all relevant U.S. authorities (United States Department of Justice, New York County District Attorney’s Office, Federal Reserve Boards of Governors and the Department of Financial Services of the State of New York) is $1.45 billion. This post considers only OFAC’s actions toward Commerzbank and calls into question OFAC’s jurisdiction to enforce its sanctions regulations and penalties abroad.

Allegations against Commerzbank

Commerzbank allegedly violated the U.S. sanctions regulations by routing non-transparent payment messages for states, entities and individuals subject to U.S. sanctions through the U.S. financial system between 2002 and 2010. By removing or omitting references to U.S.-designated entities from SWIFT’s MT103 and MT202 payment messages, Commerzbank also allegedly caused U.S. financial institutions to violate U.S. law. (Settlement Agreement [3-5, 1-9, 11, 20]). The first question we must ask is why Commerzbank, a German entity, would have to follow U.S. sanctions regulations?

OFAC’s main argument is that the alleged wrongful transactions went through the U.S. financial system, and, therefore, under the territoriality principle, U.S. law applies. Without repeating myself (see my previous post), I would like to stress that Commerzbank, incorporated in Germany and initiating its transactions in Germany, has a much stronger jurisdictional link to German than to U.S. law. In the settlement, OFAC acknowledges that Commerzbank agrees to OFAC’s requests only to the extent permitted by local law. (Settlement Agreement [44]). Read the rest of this entry…

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An Old Question in a New Context: Do States Have to Comply with Human Rights When Countering the Phenomenon of Foreign Fighters?

Published on March 19, 2015        Author: 

The phenomenon of foreign fighters involves, as described by the OHCHR, “individuals who leave their country of origin or habitual residence, motivated primarily by ideology or religion, and become involved in violence as part of an insurgency or non-State armed group (even though they may also be motivated by payment)”. Preventing and responding to this phenomenon involves a multitude of potential initiatives at international, regional and national levels. A review of the Security Council’s principal resolution on foreign fighters, Resolution 2178 (2014), discloses several binding decisions as well as recommendations in what the Security Council described as a ‘comprehensive’ response to the factors underlying foreign fighters (see preambular para 13). State prevention and responses to foreign fighters have the potential to impact on the international human rights obligations of States and we are already seeing robust State responses, including in the case of the United Kingdom’s recent enactment of the Counter-Terrorism and Security Act 2015 and earlier amendments to the British Nationality Act 1981 to allow for the deprivation of citizenship.

I want to emphasise here that the question of human rights compliance in countering the phenomenon of foreign fighters does not involve new or untested issues. I draw attention to seven points:

1.  Implementation by States of recommendations and obligations under SC Res 2178 has the potential to impact on a broad range of civil, cultural, economic, political and social rights

The main objectives of SC Res 2178 are to inhibit the travel of foreign fighters, stem the recruitment to terrorism, disrupt financial support to or by foreign fighters, prevent radicalisation, counter violent extremism and incitement to terrorism, and facilitate reintegration and rehabilitation (see operative paragraphs 2-19).

Action in response will, or at least may, engage several human rights obligations of States. Concerning measures to inhibit the travel of foreign fighters, this may include: the freedom of movement; the right to return to one’s country of nationality; the freedom of entry into a State, particularly as this may affect refugee and asylum law; the deprivation of citizenship; the rights to family and private life and to employment and culture, as this affects individuals who may be prevented from entering a territory of habitual residence in which their family resides; the right to privacy, including as this affects the collection, storage or use of information in border control activities; the prohibition against discrimination, including as this affects profiling activities of border control officials; detention, as this affects the prohibition against unlawful or arbitrary detention; and rendition to States in which there is a risk of human rights violations being perpetrated against the individual. Read the rest of this entry…

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The Case of Russia’s Detention of Ukrainian Military Pilot Savchenko under IHL

Published on March 3, 2015        Author: 

There has been much debate in recent weeks over whether international humanitarian law (IHL) authorizes internment in non-international armed conflicts (NIACs) (see posts here, here and here). Both sides have presented convincing arguments but without applying them to concrete situations. In this regard, Russia’s ongoing detention of Ukrainian Air Force officer Nadia Savchenko provides a timely case study. As detailed below, the detention of certain categories of people raises questions during both NIACs and international armed conflicts (IACs), depending on who the detaining authorities are.

Lieutenant Savchenko was allegedly captured in full uniform in Eastern Ukraine on or about June 18, 2014 by the armed forces of the Luhansk People’s Republic during active hostilities. Several days later, the separatists transferred her to Russian special forces, who in turn transported her to Russia. Russia, however, claims that Savchenko crossed the border voluntarily and was detained as an undocumented refugee. In any case, on July 9, 2014, Russian authorities announced that Savchenko was detained in a civilian detention center in Voronezh, Russia, facing charges of directing mortar fire that killed two Russian journalists during an attack on a separatist checkpoint outside of Luhansk. Currently, Savchenko is kept in a detention facility in Moscow, facing an additional charge of trespass.

Savchenko, who is on a hunger strike to protest the charges, has filed a complaint before the European Court of Human Rights alleging that her detention violates her rights to liberty (Article 5) and a fair trial (Article 6) as enshrined in the European Convention on Human Rights. The ECtHR gave Savchenko’s initial application priority, but on February 10 refused to grant Savchenko’s Rule 39 request for interim measures compelling Russia to immediately release the prisoner. The court instead asked Savchenko to end her hunger strike and Russia to provide more facts concerning her detention. Read the rest of this entry…

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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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