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Home Archive for category "State Responsibility" (Page 4)

Tears in Our Eyes: Third State Obligations in International Law

Published on July 30, 2015        Author: 

In early January 2015 the Republic of South Korea sold 1.9 million tear gas canisters to Turkey. With this sale came much campaigning against it. Amnesty International’s “Korea, do not sell us tear gas” campaign received over 50,000 signatures of support. The goal of this campaign was to highlight how the Turkish police force has been and continues to be to this day reckless and excessive in its use of tear gas on certain domestic demonstrations. Reckless and excessive use which, according to data collected by the Turkey Human Rights Joint Platform, led to the death of 19 Turkish citizens between 2006 and 2013 — including four children.

The sale of such large quantities of tear gas to a country that has a proven track record of using it frequently and recklessly raises important questions of international law. It raises questions in particular with regard to the responsibility of third states for internationally wrongful acts and the standard of proof required to establish such responsibility. Put simply, did South Korea commit an internationally wrongful act when it sold tear gas to Turkey?

Tear gas and international law

The name tear gas encompasses a group of substances that irritate mucous membranes and cause stinging sensations and tears. The effect of tear gas is normally considered temporary for a healthy adult so long as they are able to breathe fresh air shortly after exposure. Fatalities have been caused when tear gas has been used in closed spaces, on unhealthy adults or the elderly, or when canisters have been fired directly at protesters.

The use of tear gas is prohibited in wartime both by the 1925 Gas Protocol and the 1993 Chemical Weapons Convention.  The 1993 Convention, however, explicitly includes a clause in Article 1(5), inserted at the insistence of the United States, stating that “Each State Party undertakes not to use riot control agents as a method of warfare.” Article II(7) of the 1993 Convention further defines a “Riot Control Agent” as “Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.” This clause, by implication, signals a regime of permissibility for riot control agents — including tear gas — during peacetime. Read the rest of this entry…

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The Nagorno-Karabakh Cases

Published on June 23, 2015        Author: 

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.

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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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On the Entirely Predictable Outcome of Croatia v. Serbia

Published on February 6, 2015        Author: 

This week the International Court of Justice delivered its judgment in the genocide case brought by Croatia against Serbia. The result was entirely predictable: the Court quite correctly dismissed both the Croatian claim and the Serbian counterclaim. I wrote about this on the blog before (here and here), and have also written a reaction piece intended for a lay audience for the Serbian online magazine Pescanik, which is available in English here. The nationalist reactions to and misinterpretations of the judgment in Croatia and Serbia have been equally predictable, if no less tiresome.

For its part, the Court displayed a laudable degree of both restraint (which is after all de rigueur for the ICJ) and consensus (not so much). The Court’s general approach was entirely consistent with its 2007 Bosnian Genocide judgment: repeatedly finding that acts that qualified as the actus reus of genocide were committed, but without the necessary mens rea (genocidal intent), so that there was no genocide, while the Court had no jurisdiction to determine state responsibility for any other internationally wrongful act. While there are some interesting paragraphs regarding the assessment of evidence etc, the Court basically completely followed the factual findings of the ICTY (including the controversial Gotovina appeals judgment), and rightly so. By following this general approach the Court entirely avoided some of the most interesting legal issues raised in the case, for example the question of state succession to responsibility (i.e. whether Serbia could have succeeded to the responsibility for a wrongful act of its predecessor state, the SFRY), or the question of the attribution to Serbia of the conduct of the Croatian Serb separatists by virtue of the relevant control tests.

The one question that did divide the Court was the issue of its temporal jurisdiction under the compromissory clause in Article IX of the Genocide Convention. By 11 votes to 6 the Court found that it did have the jurisdiction to examine Serbia’s responsibility for genocide allegedly committed by the SFRY (i.e. before Serbia’s independence) by virtue of succession to responsibility, while finding that it ultimately did not need to decide on the succession question because no genocide was committed (most notably during the destruction of the town of Vukovar by the Yugoslav National Army). A number of judges wrote separately on this point of the temporal extent of the Court’s jurisdiction.

On all other matters the judges were either unanimous or virtually unanimous. Even the Serbian judge ad hoc voted for the dismissal of the Serbian counterclaim, while the Croatian claim was rejected by 15 votes to 2, the two being the Croatian judge ad hoc (who wrote a rather half-hearted three-page dissenting opinion, which doesn’t really say much except that he dissents) and Judge Cancado Trindade. Judge Cancado Trindade indeed did not disappoint; in an awesome display of his Cancadotrindadeness he wrote an opinion of some 142 pages (the Court having written a total of 153), dissenting about, well, everything. The summary of his conclusions runs from ‘first’ to ‘fourty-fifth,’ and in Latin, as is only proper (that’s quadragesimus quintus for you h8ers out there).

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ICJ to Hand Down Croatia v. Serbia Genocide Judgment on 3 February

Published on January 22, 2015        Author: 

As reported in Serbian and Croatian media yesterday, and officially confirmed by the Court today (press release). As for what the Court will decide, it will most likely find that no crime in the conflict in Croatia constitutes genocide, that it lacks the jurisdiction to decide on the responsibility of either state for any other crime, and that accordingly it has to reject both Croatia’s claim and Serbia’s counterclaim. By ‘most likely’ read ‘virtually inevitable, so that I would fall of my chair if the Court did anything else’ – see more here.  We’ll see whether the Court will say something interesting on various ancillary substantive questions before it reaches its main conclusion.

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Jurisdiction, Attribution and Responsibility in Jaloud

Published on December 11, 2014        Author: 

In my last post on the Jaloud v. Netherlands case, I looked primarily at the bottom line of the case and what it will mean for the future. In this post, however, I would like to try to clarify the conceptual framework of jurisdiction, attribution and responsibility (which Aurel also looked at in his post) that the Court used (or should have used) in the case. The key parts of the judgment in that regard are paras. 140-155, which I will not reproduce in full here, plus the concurring opinion of Judge Spielmann, joined by Judge Raimondi.

It is clear from even a cursory read of the Spielmann opinion (as well as the concurring opinion of Judge Motoc, who writes in opposition to the two other Judges), that the judges of the Grand Chamber found the question of the relationship between the Article 1 ECHR concept of state jurisdiction, and general international law concepts such as attribution of conduct and responsibility for wrongful acts, to be particularly vexing. Judging by the language used, there must have been quite the internal debate. Judges Spielmann and Raimondi found the Court’s use of the attribution concept and its references to the case law of the ICJ (para. 95-97) and the ILC’s Articles on State Responsibility (para. 98, quoting articles 2, 6 and 8) to have been exceptionally objectionable, indeed ‘ambiguous, subsidiary and incomprehensible.‘ For the two Judges, attribution was a ‘non-issue’ in the case, which the Court should have avoided:

There was therefore no need to examine the non-issue of “attribution”, which is completely separate from the question of “jurisdiction”. More fundamentally, the Court should in any event be careful not to conflate the notions of jurisdiction under Article 1 with the concept of State responsibility under general international law. Efforts to seek to elucidate the former by reference to the latter are conceptually unsound and likely to cause further confusion in an already difficult area of law.

Contrary to the two Judges, I will try to show that attribution was, in fact, a central issue in the case, and that the Court’s approach, including references to the ILC’s work on state responsibility, was generally sound. However, I will also show that the Court could have been clearer in explaining what it was actually doing, which would have had the salutary effect of avoiding potentially confusing points for future cases. In fact, at least to an external observer, the divide between the majority and the two Judges is not as great as it might first seem, and the important conceptual points that they raise in the separate opinion can and should be adequately addressed.

Read the rest of this entry…

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The Bottom Line of Jaloud

Published on November 26, 2014        Author: 

Following up on Aurel’s post on the Jaloud v. Netherlands case, I want to add a few brief thoughts regarding the bottom line of the judgment and what it means for the overseas military operations of European states.

First, Jaloud confirms the general trend in the European Court’s case law towards a more expansive approach to the extraterritorial application of the ECHR. Whether you think an expansive approach is a good idea or not, the trend is there, since the normative pull of universality is hard to resist, and as the Court becomes increasingly more familiar with applying the Convention to extraordinary situations. I personally feel that the judgment is correct in its basic approach to extraterritoriality, even if there is some conceptual confusion between various questions of jurisdiction and attribution, on which I will write separately. But the basic message to states is this: trying to exploit the many contradictions in the Court’s case law on extraterritoriality to deny the applicability of the Convention in this case or that will in most circumstances end in defeat. Rather than fighting a losing battle, states should focus their energies on arguments on the merits on which they are more likely to win.

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Jaloud v Netherlands: New Directions in Extra-Territorial Military Operations

Published on November 24, 2014        Author: 

Last week, the Grand Chamber of the European Court of Human Rights delivered its judgment in Jaloud v Netherlands. The case arose out of the fatal shooting of Azhar Sabah Jaloud by Dutch troops in the early hours of 21 April 2004 at a checkpoint in Iraq. The applicant claimed that the investigation into the incident was inadequate and therefore in breach of the Netherlands’ procedural obligations under Article 2 of the European Convention on Human Rights.

Jaloud is the latest in a growing line of Strasbourg cases addressing the application of the Convention to extra-territorial military operations. The Court’s jurisprudence on the subject is a source of endless fascination. Like any good thriller, its twists and turns leave the observer suspended in fearful anticipation on a never ending quest for legal certainty. Will the law stretch as far as the facts or is jurisdiction a threshold too far? Will the Court prevail against conceptual confusion? Which of its dicta is up for silent reversal? And what will be the next victim of normative conflict?

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Sovereign Debt Litigation Against Argentina: An Aberration or A New Routine?

Published on September 4, 2014        Author: 

hayk

Hayk Kupelyants is a PhD candidate at Sidney Sussex College, University of Cambridge.

Argentina’s 2001 economic crisis led to one of the most extensive sovereign debt restructurings in history. In hindsight, it was also one of the harshest, in terms of Argentina’s negotiating stance and the losses incurred by bondholders. Ninety-three percent of holders of Argentine sovereign bonds eventually accepted the terms of two restructurings in 2005 and 2010, but seven percent of bondholders, holding an approximate US $4 billion of Argentine sovereign bonds “held out,” or declined to accept restructured bonds. The plaintiffs in the litigation discussed in this post hold US $1.7 billion, which they seek to recover through litigation in US courts.

NML Capital and other hedge funds purchased the Argentine bonds on the ‘secondary market’, i.e. on the market of previously issued financial instruments, from the original owners of bonds. The business model of hedge funds specialising in distressed debt is to purchase sovereign debt or judgments against a sovereign on the secondary market at a deeply reduced price to their par and, by consistently holding out from the renegotiation process and aggressively litigating, recover the full value of the bonds. The Argentine bonds purchased by the hedge funds contained choice of forum clauses in favour of New York courts, choice of law clauses in favour of New York law and broad waivers of sovereign immunity. The combination of these clauses should havemade the effort of recovering the debt much less painful. However, the hedge funds’ continuous efforts  to enforce US judgments in their favour around the world have so far been modestly successful at best.

In the view of many, the balance of powers may change as a result of the recent US litigation. The US court litigation discussed in this blog post has been called ‘the trial of the century’ or the litigation that will change the landscape of sovereign debt restructurings. It has been remarkable, as the hedge funds have come close to being repaid under the bonds purchased on the secondary market. In an unprecendented turn of the litigation, the holdout creditors have obtained third-party injunctions from US courts that have driven a sovereign state to default. Read the rest of this entry…

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The ECtHR’s Largest Ever Award for Just Satisfaction Rendered in the Yukos Case

Published on August 15, 2014        Author: 

mccarthy

Dr Conor McCarthy is a barrister at Monckton Chambers, London and formerly fellow of the British Institute of International and Comparative Law.

On 31 July 2014 the European Court of Human Rights issued its decision in the just satisfaction phase of proceedings in Yukos v. Russia. In its judgment the Court made its largest ever award of compensation, ordering Russia to pay in the region of € 1.9 billion to the shareholders of the company at the time of its liquidation. In 2012, the Court had found Russia to be in violation of the rights to a fair hearing and the protection of property under the European Convention on Human Rights and its Protocol 1. The Court’s compensation decision follows on from the recent final awards of three arbitral tribunals, constituted under the Energy Charter Treaty, which found that the Russian Federation had taken measures with the effect equivalent to an expropriation of Claimants’ investments in Yukos, contrary to Article 13 (1) of the treaty. These final awards were issued on 18 July 2014. Russia was ordered to pay almost $ 50 billion in compensation in these proceedings. Claims arising from the circumstances surrounding Yukos liquidation have also been taken before the ICC International Court of Arbitration as well as in national courts in the United Kingdom, the Netherlands as well as, of course, in Russia itself. This post focuses on the ECtHR’s decision, with some reflections on its significance.

Background

The events underlying the Yukos case occurred in the early 2000s, a period of considerable economic and political upheaval in Russia. Between 2002 and 2003 the Russian authorities investigated the tax affairs of Yukos. This culminated, in April 2004, in the company being assessed as having accumulated huge tax liabilities, in part, according to the findings of the Russians authorities, as a result of Yukos having used impermissible sham companies to evade tax. Yukos was ordered to pay approximately € 1.4 billion in tax arrears for the year 2000, € 1 billion in interest and a further € 0.5 billion in enforcement penalties. In the same month proceedings were initiated against Yukos alleging improperly declared tax liability and seeking the attachment of the company’s assets as security for the claim. A hearing was held at the Moscow City Commercial Court in respect of the tax assessment between 21 and 26 May 2004, with much of the evidence in support of the assessment (running to several tens of thousands of pages) being served on 17 May 2004 and in subsequent days immediately prior to the hearing. The assessment was upheld, with Yukos being found liable to pay well over € 1.3 billion in respect of tax in the year 2000, together with almost € 1 billion in interest and € 0.5 billion in penalties. Subsequently, the penalty imposed on Yukos (approximately € 0.5 billion) was doubled when the tax authorities determined that Yukos had used similar tax arrangements in 2001 to those used in 2000.

Yukos sought to appeal the decision of the Commercial Court. The appeal was dismissed by the Appeal Division of the Moscow City Commercial Court on 29 June 2004. On 30 June 2004, the Appeal Court issued a writ for the enforcement of Yukos’s assessed liabilities, compelling compliance within 5 days. Upon Yukos’s failure to pay the sums within the required period, further penalties of 7 % of the debt were levied. Yukos’s requests to extend the very short deadline for payment were unsuccessful. In the next six months there followed further tax re-assessments for each subsequent year to 2003, including in particular huge assessments to VAT as well as profits taxes, penalties and interest, ultimately totalling some € 24billion. The enforcement of these liabilities was immediate and in the absence of immediate payment in full incurred further surcharges.

Yukos were unable to obtain sufficient liquid funds to meet the liability. In December 2004 the majority of the shares in its largest and most profitable subsidiary, Yuganskneftegaz, (“YNG”), were auctioned to meet its tax liability, rendering insolvency inevitable. Yukos was declared insolvent in August 2006.

The treatment of Yukos by the Russian Federation has resulted in considerable litigation at the international level. Read the rest of this entry…

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