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Home Archive for category "State Responsibility" (Page 5)

Towards a New Global Treaty on Crimes Against Humanity

Published on August 5, 2014        Author: 

Sadatl4Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow at Washington University School of Law and has been the Director of the Whitney R. Harris World Law Institute since 2007.

Douglas J. Pivnichny, JD, is the Whitney R. Harris World Law Institute Fellow at Washington University School of DPivnichny photoLaw in St. Louis, Missouri, and a masters candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.

The Crimes Against Humanity Initiative and Recent Developments at the ILC

On Thursday, July 17, the International Law Commission moved the topic of crimes against humanity from its long-term to its active agenda and appointed Professor Sean D. Murphy as Special Rapporteur. The Rapporteur’s charge is to prepare a First Report, which will begin the process of proposing Draft Articles to the Commission for its approval. The expectation is that, in due course, the Commission will send a complete set of Draft Articles for use as a convention to the United Nations General Assembly. This was a crucial step in filling a normative gap that has persisted despite the development of international criminal law during the past decades:  the absence of a comprehensive global treaty on crimes against humanity.

The Commission’s interest in this topic was sparked by the work of the Crimes Against Humanity Initiative, launched by Professor Leila Sadat of Washington University School of Law in 2008.  The Initiativeset out to study the current state of the law and sociological reality regarding the commission of crimes against humanity and to address the gap in the current international legal framework by drafting a global, comprehensive model convention on crimes against humanity. Ambitious in scope and conceptual design, the Initiative has been directed by a distinguished Steering Committee and consulted more than 300 experts in the course of elaborating and discussing the Proposed International Convention for the Prevention and Punishment of Crimes Against Humanity (Proposed Convention), published by Cambridge University Press in English, French and Spanish in Forging a Convention for Crimes Against Humanity (1st  ed., 2011; 2nd ed., 2013). Arabic, Chinese, German and Russian translations are also available. Read the rest of this entry…

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The ECtHR Finds the US Guilty of Torture – As an Indispensable Third Party?

Published on July 28, 2014        Author: 

The recent rulings by the European Court of Human Rights in two cases concerning secret detention in Poland are remarkable, not the least because their bold approach in respect of human rights violations committed by a third party, in this case the United States of America. Of course, the US is not a party to the European Convention on Human Rights and was not a participant in the proceedings. In both cases Poland was found to have violated a number of ECHR provisions, including articles 3 and 5, by hosting a CIA black site and by otherwise participating in the US programme of secret detention and extraordinary renditions.

In paragraph 516 of Al Nashiri v. Poland (Application no. 28761/11, Chamber Judgment of 24 July 2014), the Court concludes:

In view of the foregoing, the Court concludes that the treatment to which the applicant was subjected by the CIA during his detention in Poland at the relevant time amounted to torture within the meaning of Article 3 of the Convention (…).

The same conclusion appears in paragraph 511 of Husayn (Abu Zubaydah) v. Poland (Application no. 7511/13, Chamber Judgment of 24 July 2014). Immediately after the finding on torture by the US, the Court makes its finding in respect of Poland (Al Nashiri para. 517).:

Accordingly, the Polish State, on account of its “acquiescence and connivance” in the HVD Programme must be regarded as responsible for the violation of the applicant’s rights under Article 3 of the Convention committed on its territory …

One may ask whether the ECtHR through its formulations in paras. 516-517 created a situation where the US was an indispensable third party, to the effect that the finding in respect of the lawfulness of conduct by the US was a prerequisite for a conclusion in relation to Poland, even if the Court obviously did not consider the US participation in the proceedings (or consent to its jurisdiction) to be indispensable.

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Comments Off on Republic of Argentina v. NML Capital Ltd.: The Global Reach of Creditor Execution on Sovereign Assets and The Case for an International Treaty on Sovereign Restructuring

Crimea after Cyprus v. Turkey: Just Satisfaction for Unlawful Annexation?

Published on May 19, 2014        Author: 

On 13 March 2014 Ukraine lodged an inter-state application under Article 33 of the European Convention against the Russian Federation. Philip Leach has addressed in this forum the likely implications, suggesting that the occupation of Crimea will present a situation for the European Court similar to that in Ilaşcu v. Moldova and Russia.

The other decided case of the European Court that writers are speculating may be relevant to Ukraine is Cyprus v. Turkey. The Court’s just satisfaction judgment in Cyprus v. Turkey, adopted on 12 May 2014, is the first ever to award just satisfaction in an inter-State case under the Convention. Judge Pinto de Albuquerque and Judge Vučinić declared the judgment “the most important contribution to peace in Europe in the history of the European Court of Human Rights.”

What is important about Cyprus v. Turkey? And how, if at all, might Ukraine use the just satisfaction judgment to advance its own application against Russia?

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ICJ Opens Hearings in Croatia v. Serbia

Published on March 3, 2014        Author: 
http://pescanik.net/wp-content/uploads/2014/03/01.03.14-Danas.jpg

Cartoon by Corax, in the Danas newspaper.

Today the International Court of Justice opens a month of hearings in the pending case between Croatia and Serbia for state responsibility for genocide allegedly committed during the 1990s conflict. In the afternoon the Court will also be delivering its provisional measures order in Timor Leste v. Australia. The latter will at least to my mind be vastly more interesting than the former. Why? Because the outcome of the Croatia/Serbia case is a foregone conclusion, bearing in mind that the Court’s jurisdiction is limited solely to breaches of the Genocide Convention, and that it cannot rule on either party’s responsibility for any other wrongful acts, be it war crimes, crimes against humanity, or aggression.

In its 2007 Bosnian Genocide judgment the Court, relying on the findings of the ICTY, found that the ‘only’ instance of genocide in the otherwise far more brutal Bosnian conflict was Srebrenica, for which Serbia was not responsible, and did so by 13 votes to 2. It seems extremely unlikely that the Court will adopt a different methodological approach in the Croatian case, especially because nobody was even charged, let alone convicted, for genocide in Croatia by the ICTY. The (many) acts of ethnic cleansing committed by both sides in the Croatian conflict simply lack the requisite specific intent to physically or biologically destroy a protected group, and thus cannot reasonably be qualified as genocide. And without genocide, the Court is without jurisdiction.

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Immunity of Consular Officials – The Arrest by the US of an Indian Deputy Consul-General

Published on December 20, 2013        Author: 

For a subsequent posts on this issue see part 2 and part 3.

A serious diplomatic row is brewing between India and the United States regarding the arrest  and treatment of an Indian consular official accredited to the United States (see coverage by the BBC, New York Times & the Daily Mail). The brief background to the story is that last week, US Federal authorities arrested Devyani Khobragade, who is the Indian Deputy Consul-General in New York, on charges of visa fraud. Ms Khobragade is accused of submitting false documents to US authorities in order obtain a work visa for her housekeeper/maid. She is also accused of paying the maid less than the minimum wage prescribed by US law. The dispute over her arrest has become particularly acrimonious because it is alleged that not only was Ms Khobragade arrested at her daughter’s school, that she was handcuffed (which is denied by US authorities) and then subjected to a strip-search (which seems to be admitted) (see New York Times piece). Although US Secretary of State Kerry has called the Indian authorities to express regret over the incident, India has demanded an apology from the US and has taken “retaliatory” measures. Those measures include the removal of some privileges previously accorded to US diplomats, a refusal by Indian officials to meet with a US Congressional delegation in India, and perhaps most seriously, the removal of security barricades that were in front of the US embassy in Delhi (see here and here).

This post address three main issues (i) whether the Indian official is immune from prosecution; (ii) whether she was immune from arrest in the first place; and  (iii) the legality of India’s response to the incident. The key legal question that has arisen in this episode is whether the Indian consular official is entitled to immunity from prosecution. Her lawyers have asserted that she is immune from US jurisdiction. It is not clear whether India has similarly asserted that she is immune though India has demanded an apology which suggests that they think the US has done something wrong. Most of the media have reported the US position which is that consular officials, unlike diplomatic agents, are not entitled, under international law, to full immunity from criminal jurisdiction. This is correct. Read the rest of this entry…

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Crime and Punishment: The Reification and Deification of the State (A Footnote to the Syria Debate)

Published on December 13, 2013        Author: 

When I studied international law as a student close to 40 years ago at Cambridge (East), Naulilaa was still a central case in the study of jus ad bellum. It would be found in many a ‘casebook’ or course pack. I am pretty sure that at least some of the younger readers of this Editorial will be googling at this very moment ̶ Naulilaa, what’s that? This is significant, for it has largely vanished from casebooks and course packs, only appearing, if at all, in a footnote. What accounts for that demise? Was it superseded by other cases? Not exactly. For the truth is that it should really have been expunged from those early books, or appeared at best as a relic of the pre-Charter era – a relic with an unpleasant colonial odour. Already then it was very difficult to square Naulilaa with the Charter regime concerning the legitimate use of force. Where is the armed attack? Could that punitive raid plausibly be called self defence? One would have to engage in some serious lexical violence towards either the case or the Charter or both in order to square one with the other. Why was it there then? Inertia is one, not implausible, possibility. It takes the demise of a generation, as we learnt from Thomas Kuhn, for a paradigm truly to shift. Another intriguing possibility is that the Charter notwithstanding, it reflected an occasional but persistent state practice. What does one do in the face of an illegal use of force falling short of an armed attack? We all remember the tortured reasoning of the ICJ in Nicaragua, trying to address what might count as a legitimate response to such. To talk of punishment or reprisal, which is what Naulilaa really was about, was of course taboo. So it was squeezed into the ill-fitting jacket of self-defence, though as a bastard son with, for example, no recourse to collective self-defence in this instance. It was not only the ICJ that was discomfited: the late Sir Derek Bowett, one of my teachers at the time, spoke (and wrote) illuminatingly about the seemingly contradictory Security Council responses to Israeli reprisal raids in the 1960s. There have been other similar uses over the years in other arenas. The surface language of the justification offered over the decades for that type of use of force was the same rubbery rendition of self-defence.  Naulilaa represents their real deep structure.

There are many ways to explain the seeming impossibility to definitively rid the system of the Naulilaa ethos. On the one hand Naulilaa represents, as I have suggested, a clear challenge to the Charter’s focus on self-defence as the principal, perhaps only, moral justification for the legitimate use of force by individual states. At the same time, it also reflects a deep human repugnance in the face of crimes going unpunished. The unresolvable debate concerning the very appropriateness and the place of retribution (not explained away as deterrent) in theories of punishment is the domestic equivalent of this tension in international law. Read the rest of this entry…

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Targeted Sanctions after Affaire Al-Dulimi et Montana Management Inc. c. Suisse: Is There a Way Out of the Catch-22 for UN Members?

Published on December 4, 2013        Author: 

SanctionsUN member states remain caught between the obligation to carry out Security Council decisions under Art. 25 of the UN Charter and the obligation to respect international or regional human rights guarantees. The chamber judgment of 26 November 2013 in Al-Dulimi, No. 5809/08, is the second decision of the European Court of Human rights (ECtHR) on targeted sanctions after Nada (ECtHR (Grand Chamber), Nada v. Switzerland, No. 10593/08, judgment of 12 Sept. 2012). In contrast to the constellation in Nada, the UN member states (here Switzerland) had no leeway at all to implement the Iraq sanctions imposed by UN SC Res. 1483. However, because the UN sanctions regime did not guarantee “equivalent protection”, the Bosphorus-presumption that the states’ implementing measures are in conformity with the European Convention of Human rights (ECHR) did not apply – in other words, it did not help the state that it had no leeway. Strasbourg examined in full whether Art 6 ECHR had been lawfully restricted by Switzerland and found that this was not the case. On the contrary, the Swiss Federal Tribunal’s refusal to scrutinize the merits of Al-Dulimi’s complaint (with a view to Art. 103 UN Charter), had undermined the very essence of Art. 6 ECHR and therefore Switzerland violated the Convention.

By insisting on full responsibility of ECHR members for violations of the Convention, independently of their “strict” obligations under Security Council resolutions, Strasbourg has in Al-Dulimi stabilized the catch-22-situation. This blog post argues that member states should not be left off the hook, but also calls for responsibilizing the United Nations. Read the rest of this entry…

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Surveillance without Borders: The Unlawfulness of the NSA Panopticon, Part II

Published on November 4, 2013        Author: 

This is Part II of a post assessing the international law implications of the U.S. National Security Agency’s global spying program. Part I focused the general international law implications of the program. This part focuses on potential violations of human rights law and breaches of the law of diplomacy.

Constitutional fundamental rights binding the European states

In probably all surveilled states, citizens enjoy a constitutional right to privacy which has been affected by secret surveillance measures by the NSA. Fundamental rights embodied in European constitutions bind only the territorial state, not the USA. The territorial states’ responsibility under their own constitutional law could be involved through their condonement, toleration, or by just refraining from protesting against surveillance measures by the NSA.

In Germany, the secrecy of communication is protected by Art. 10 of the German Basic Law (Grundgesetz, GG). This fundamental right may be lawfully restricted. The principal relevant legislation in Germany is the Gesetz zur Beschränkung des Brief-, Post und Fernmeldegeheimnisses as of 26 June 2001, colloquially called the G10-Act. This Act allows for measures to repel “dangers to the troops of the non-German contracting parties of the NATO treaty” (§ 1 of the G10-Act). That Act allows for different types of restrictions of the fundamental right to privacy, for example “strategic limitations”. But all restrictions are tied to specific conditions, for example, “concrete clues” must exist to found a “suspicion”. Also, the Act only authorises specific German agencies to perform surveillance measures, notably the German intelligence service (Bundesnachrichtendienst). Third, specific procedures must be respected. Finally, the affected persons must be informed ex post, and they are guaranteed access to non-judicial remedies. None of these preconditions have been met in the course of NSA-surveillance. It remains to be seen whether German authorities have violated citizens’ fundamental right to privacy by tolerating NSA measures. Read the rest of this entry…

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The Nature of Investor’s Rights under Investment Treaties: A Rejoinder to Martins Paparinskis

Published on October 31, 2013        Author: 

Editor’s note: This is the final installment in the discussion begun last week of Martins Paparinskis’s EJIL article, “Investment Treaty Arbitration and the (New) Law of State Responsibility“.

Martins’ reply to my comments on his EJIL article highlights a number of challenging issues regarding the ongoing debate over the direct or derivative nature of investors’ rights under international investment agreements (IIAs). To summarize our disagreement: Martins, on the one hand, views the derivative rights approach “as only one of a number of plausible ways of articulating international law arguments about investment law”; on the other, I remain strongly reluctant towards this polyphony of plausible  articulations, and rather find that the direct rights model is unconvincing.

Martins questions, first, whether the practice of NAFTA Parties indeed favours the derivative model; second, whether international law provides for causality (or even correlation) between the nature of obligations under treaties and the nature of rights derived thereunder; and, third, whether indeed the HICEE v Slovakia award explicitly adopts the derivative rights model. By way of rejoinder to Martins’ reply, I will address the first point separately, and the second and third points jointly. Read the rest of this entry…

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