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Home Archive for category "State Responsibility" (Page 7)

The ECtHR Finds Macedonia Responsible in Connection with Torture by the CIA, but on What Basis?

Published on December 24, 2012        Author: 
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André Nollkaemper is Professor of Public International Law at the Faculty of Law of the University of Amsterdam. He directs the project on ‘Shared Responsibility in International Law’ (SHARES); this piece is cross-posted on the SHARES Blog.

On 13 December 2012, the European Court of Human Rights (‘the Court’) found the that the Former Yugoslav Republic of Macedonia (‘Macedonia’) was responsible in connection with the ill-treatment and torture of Khaled El-Masri. The judgment adds a further chapter to the Court’s rich case law on situations where a state party is held responsible in connection with the (wrongful) acts of another state.

El-Masri, a Lebanese-born German national, alleged that in the period from 31 December 2003 to 29 May 2004 he had been subjected to a secret rendition operation, in which agents of Macedonia had arrested him, held him incommunicado, questioned and ill-treated him, and handed him over at Skopje Airport to CIA agents who then transferred him to Afghanistan, where he had been detained and ill-treated for over four months.

No one who reads the facts of the case will argue with the Court’s conclusion that Macedonia had to bear international responsibility. The question is on what grounds one can base this conclusion.

The approach chosen by the Court may surprise many international lawyers. Influenced by decades of work of the International Law Commission (‘ILC’), their approach would be a combination of attribution of conduct on the one hand and the breach of an international obligation, on the other: Macedonia then would be responsible for handing over El-Masri to the CIA, in the face of risk (if not certainty) that he would be ill-treated and tortured. They would not normally say that the act of ill-treatment at the hands of the CIA itself is attributed to Macedonia, but limit Macedonia´s responsibility to its own wrongful conduct. This distinction may seem a legal nicety, but it may have practical relevance (for questions of evidence and reparation) and also reflects that what is essentially a sovereignty-based consideration: it should not easily be presumed that a state is responsible for acts committed by another subject of international law.

The Court takes a somewhat different approach. But it is quite difficult to figure out what exactly this approach is. While the fact that the Court does not feel compelled to follow the ILC´s conceptual straightjacket is in many respects refreshing, its own line is at times somewhat inconsistent and confusing. For one thing, it is difficult to see why the Court uses interchangeably the terms ´attribution´ and ´imputation´ – one may guess that the Court uses the latter when it seeks to leave aside the ILC´s approach, but it would be nice if the Court would not invite us to speculate.

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Palestine as a UN Observer State: Does this Make Palestine a State?

Published on December 3, 2012        Author: 
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Last week, the UN General Assembly voted by 138 to 9 (with 41 abstaining) “to accord to Palestine non-member observer State status in the United Nations”. Thus, Palestine which has been an observer at the UN since 1974 has had its status within the UN upgraded to being an observer State. There has been much euphoria on one side as a result of this decision, and dismay on the other side. However, what are the implications, if any, of this decision. It is thought that one reason why Israel opposed the change, though it asserts that the decision achieves nothing, is that characterising the Palestinian as an observer State would give Palestine access to legal, particularly judicial, remedies that it otherwise would not have (see BBC Q & A report here). It was reported that the United Kingdom, which in the end abstained from voting, was prepared to vote in favour of the resolution, if Palestine had been prepared to pledge not to ratify the Rome Statute of the ICC or to seek to utilise the International Court of Justice. So though the granting of observer Status does not change “the facts on the ground”, it is thought that it would change the legal position of Palestine under international law. But does it? Are there new legal options open to Palestine as a result of the resolution and does the resolution constitute Palestine as a State?

Any student of international law will be familiar with the debate between the declaratory theory of recognition of States and the constitutive theory. Theory, practice and judicial decisions favour the declaratory theory and assert that recognition does not create Statehood. Although last week’s decision does not grant Palestine membership of the UN (which would require Security Council approval), the decision to grant observer State status to Palestine is an act of collective recognition of the statehood of Palestine. If that decision is capable of effecting the legal changes hoped for (by proponents) or feared (by those oppose the decision), this will provide strong support to the view that collective recognition is capable of creating Statehood. Read the rest of this entry…

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Countermeasures vs. Collective Security? The EU Sanctions Against Iran

Published on June 22, 2012        Author: 
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 Pierre-Emmanuel Dupont, is a lawyer based in Paris,France. His practice is centered on public international law and international investment. His article “Countermeasures and Collective Security: The Case of the EU Sanctions Against Iran” will appear shortly in (2012) 17 Journal of Conflict and Security Law but is now available here

The additional sanctions agreed in early 2012 by the European Union against Iran in relation to its nuclear program (see Council Decision 2012/35/CFSP of  23 January 2012, and Council Regulation 267/2012 of 23 March 2012), including an embargo on imports of Iranian oil and the freeze of assets of the Iranian Central Bank, go well beyond those mandated by the successive UN Security Council resolutions (Res. 1737 (2006); 1747 (2007); 1803 (2008) and 1929 (2010); for a comprehensive analysis of Res. 1737 and Res. 1929, see e.g. D H Joyner, ‘The Security Council as a Legal Hegemon’, (2012) 43 Georgetown Journal of International Law 225-257, at 238-248.). Given their unprecedented extent, they raise various specific issues regarding their lawfulness under international law. I have written an article (a prepublication version of which is available here) in the forthcoming issue of the Journal of Conflict and Security Law, which aims at characterizing these measures. In this piece I argue that the EU measures cannot be characterised as measures of retorsion or as sanctions. Rather they are to be regarded as countermeasures. However, characterising these measures as such raises the question whether it is open to States or regional organizations to take countermeasures in circumstances where the UN Security Council has already adopted measures under Chapter VII of the Charter.

According to the ILC, a retorsion  is ‘unfriendly’ conduct ‘which is not inconsistent with any international obligation of the State engaging in it even though it may be a response to an internationally wrongful act’ (see Commentaries on the Draft articles on Responsibility of States for Internationally Wrongful Acts, in 2001 ILC Yearbook II(2), at 128). While it is true that measures restricting or impeding trade relations (in general or in specific areas), such as an embargo, are a typical example, often quoted, of retorsion (see ILC Commentaries on State Responsibility Articles at 128), it remains that, as it has been rightly noted, measures of the kind of those enacted by the EU in January 2012 ‘go beyond mere expressions of disapproval and involve the suspension of the performance of international legal obligations otherwise owed to Iran’ (N. Jansen Calamita, Sanctions, Countermeasures, and the Iranian Nuclear Issue, (2009) 42 Vanderbilt Journal of Transnational Law 1393-1442, at 1397). Indeed, in this case, the EU measures actually imply non-performance of various international legal obligations owed to Iran, for instance treaty commitments under BITs (see e.g. Iran-Germany BIT, 1965, Iran-France BIT, 2003). It may also be considered that the oil embargo, and in particular the mandatory termination of existing contracts related to import, purchase and transport of petrochemical products, raises prima facie an issue of compliance with a customary standard of investment protection. Read the rest of this entry…

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Award of Compensation by International Tribunals in Inter-State Cases: ICJ Decision in the Diallo Case – UPDATED

Published on June 21, 2012        Author: 
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UPDATE: See below for answers to my trivia question asking  for cases where compensation was awarded by an international tribunal to one State for violation by another State of international law other than cases of diplomatic protection.

This week, the International Court of Justice decided that the Democratic Republic of Congo is obliged to pay $95,000 to the Republic of Guinea for material and non-material injury arising out of the DRC’s violations of the human rights of a national of Guinea. The case was an old fashioned case of diplomatic protection brought by one State in respect of violations of international law committed towards its nationals by another State. The ICJ decided the case on the merits in 2010 and held that while DRC had violated the rights of Mr Diallo under the International Covenant on Civil and Political Rights and under the African Charter of Human Rights. In 2007, the Court rejected the admissibility of claims brought by Guinea on behalf of companies/firms in which Mr Diallo had an interest. I have a comment about this recent judgment and will then pose a couple of question to readers. The questions will form part of what I hope will be a regular series of trivia questions about international law on the blog. I will have more to say about that series in a future post. For now, let me say that we have a prize on offer to induce you to take part in answering the questions. Read the rest of this entry…

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The ‘left-to-die boat’: whose responsibility for the death of 63 migrants in the Mediterranean?

Published on March 31, 2012        Author: 
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 Francesco Messineo is lecturer at Kent Law School, Canterbury.

Given the relative lack of media hype (with notable exceptions, see also here), readers may have missed the Council of Europe Parliamentary Assembly’s scathing report on the ‘left-to-die boat’ in the Mediterranean. On 27 March 2011, during the UN-authorized NATO military operations in Libya (see UNSCR 1973(2011)), a dinghy with 72 migrants (some of whom children) was making its way from Tripoli to Lampedusa when it run into difficulties for lack of fuel and food/water supplies. The ‘captain’ of the dinghy contacted a priest in Italy who swiftly alerted the Guardia Costiera (Coast Guard). The Italian authorities informed NATO of the coordinates of the ship in distress and sent repeated ‘ship in distress’ messages to all nearby vessels via satellite. An unidentified helicopter offered water and biscuits to the migrants and an unidentified warship passed very close nearby. Fishermen vessels also passed nearby. Spanish and Italian military vessels were apparently within easy reach. Yet no one rescued the migrants – and 63 of them died before the dinghy was brought by currents back to a city in Libya, after two weeks from their departure.

The United Nations estimates that at least 1,500 migrants died at sea in 2011 alone, but something is particularly harrowing about this case. The Italian government, the Spanish government, NATO (which had established a ‘maritime surveillance area’) and other countries knew the location of the dinghy, knew what the situation was, but omitted to intervene and effectively left 63 people to die of hunger and thirst in a portion of sea otherwise crowded with military and other ships (some of which precisely in charge of protecting the Libyan civilian population).

Among the many maritime borders and delimitations in the Mediterranean sea, one of the most important ones is the Search And Rescue (SAR) areas established under the International Maritime Search and Rescue Convention (1405 UNTS 118, as amended). Although this incident took place in the Libyan SAR, the Italian government, which had first received information about the distress, was probably under an obligation to coordinate a rescue operation. In fact, the Italian government today acknowledged its responsibility for the events. Minister Riccardi said that the government ‘accepts responsibility for this’, adding that these facts had ‘touched [him] very much’ and that they must provoke a rethinking of migration policies. The legal consequences of this acceptance of responsibility are important: Italy should now immediately proceed to compensate the survivors and the families of the victims for the suffering caused by Italy’s breach of its international obligations. Although commendable, ministerial apologies are certainly not enough. Read the rest of this entry…

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Shooting fishermen mistaken for pirates: jurisdiction, immunity and State responsibility

Published on March 2, 2012        Author: 
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Francesco Messineo referred below to the incident in which Italian marines, embarked aboard an oil tanker to protect it, appear to have killed two Indian fishermen mistaking them for pirates.

There has been a lively debate about how best to manage armed security for vessels transiting the high-risk piracy area off Somalia. The two options usually advocated are: embarking military forces to act as a Vessel Protection Detachment (VPD); and private armed security guards (PASGs). The usual issues for discussion are questions of jurisdiction, immunity and state responsibility.

What follows is a preliminary sketch of the issues as I see them.

Vessel Protection Detachments

In any such fatal shooting episode the first question is which State has jurisdiction: Italy or India? The answer is, of course, both States do.

As Francesco pointed out, if this episode occurred on the high seas (as it appears to have done), it is governed by the Lotus Case. In Lotus the PCIJ found, unremarkably and by analogy with crimes that cross land borders, that an offence commenced on a vessel of flag State A which has fatal consequences aboard the vessel of flag State B can be subject to the criminal law of both A and B. A treaty law exception was later created for the masters of vessels in respect of crimes resulting from collision and incidents of navigation. In such cases a master can only be prosecuted by his state of nationality or license-issuing authority (UNCLOS, Art. 97). Otherwise the general principle stands. In this sense the principle of the “exclusive jurisdiction” on the flag State can mislead those unfamiliar with the law of the sea. It is not an absolute prohibition on concurrent jurisdiction.

As Indian courts have jurisdiction, the next question is immunity. The easy thing to assume about VPDs is that they will enjoy State immunity for their official actions. While this is true, it falls for other States’ courts to respect it in practice – and there will always be pressure to look for exceptions where the death of a national is involved.

I have surveyed the relevant State practice elsewhere. I will confine myself to observing that that comparable cases are usually resolved in favour of State immunity, but often not swiftly. The issue is complicated by the fact that the modern law is dominated by Status of Forces Agreements – treaties concluded in advance which (broadly) settle the questions of immunity for forces stationed abroad from local criminal jurisdiction. This is a situation where no such treaty applies so the applicable law is customary international law, and the relevant cases tend to be old. Nonetheless, my reading of them suggests State immunity is not lost in fatal injury cases even where a defendant’s conduct was: careless, reckless, involved excessive force, or was contrary to instructions (in the narrow sense of carrying out an authorised act in an unauthorised manner). Immunity is unlikely to be upheld where a State agent has abused their authority out of malice or for personal gain (though in such cases State responsibility will still apply e.g. Mallen). Otherwise, especially in cases of genuine mistake, immunity should generally be upheld.

Obviously, the State remains responsible for the official acts of its agents irrespective of the determination regarding immunity. The question therefore arises as to whether Italy is obliged to compensate the victims or their families. Read the rest of this entry…

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Iran, The Nuclear Issue & Countermeasures

Published on January 10, 2012        Author: 
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Sahib Singh is a Visiting Lecturer of International Law at the University of Vienna, a Visiting Fellow at the British Institute of International & Comparative Law and a PhD candidate at the University of Cambridge. The legal principles and arguments put forward are addressed far more extensively, albeit in the context of a different enquiry, in a forthcoming book chapter on Countermeasures and Non-Proliferation Law (draft here).

Since the publication of the International Atomic Energy Agency’s (IAEA) report on Iran of 8 November 2011, the Iranian nuclear issue has continued to slowly escalate.  This escalation has largely been constrained within its own narrative and of economic sanctions but, at other points, has spilled into diplomatic rows and military threats (see here and here).  In the forthcoming weeks, certainly the US, and possibly the EU, shall significantly broaden existing sanctions, introducing a spate of new sanctions as part of a marked shift in sanctions strategy.  However, despite familiar policy issues arising with such a shift, this post shall examine a foundational legal question: do states, beyond the scope of existing Security Council mandated sanctions, have standing to take unilateral countermeasures against Iran, and if so, upon which particular legal grounding?  In particular, I wish to examine the question of standing, under the law of State responsibility (particularly under Article 42(b)(ii) of the ILC Articles on State Responsibility), to respond to alleged breaches of the collective non-proliferation obligations contained in the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).  The post shall determine that there is a considerable ambiguity in the law, arising from the tension between the law of treaties and the law of state responsibility, and arguably, states undertaking unilateral sanctions as a form of countermeasures against Iran may not have strict legal standing to do so (see here, pp. 10-24 for a more detailed examination).

Background & Delineating the Legal Question

Since 2002, when Iran revealed uranium enrichment facilities in Natanz and Arak that had been previously concealed for nearly 18 years, the IAEA and the international community has viewed Iran’s nuclear program with concern for its possible military dimensions.  Iran has continuously sustained its ‘inalienable right’ to peaceful use of nuclear technology (including acceptable levels of uranium enrichment) under Article IV NPT.  Despite mere suspicions and no conclusive evidence of a clandestine nuclear weapons program, and acting in discordance (although not necessarily in breach) with Article XII(c) of its Statute, the IAEA referred the case of Iran to the UN Security Council (UNSC) in February 2006.  Since the passage of UNSC Resolution 1696 (2006), Iran’s rights and obligations in relation to its nuclear program have been severely transformed, and the first of four rounds of UNSC Chapter VII economic sanctions were put in place.  The latest and most extensive of these was UNSC Resolution 1929 (2010), passed on 9 June 2010 (see pp. 39-44 of my paper for a discussion of parts of it). Read the rest of this entry…

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The Hague Court of Appeal on Dutchbat at Srebrenica Part 2: Attribution, Effective Control, and the Power to Prevent

Published on November 10, 2011        Author: 
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 Tom Dannenbaum is a Graduate Associate in the Law and Public Affairs Program at the Woodrow Wilson School of Public and International Affairs at Princeton University. He is author of Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers51 Harv. Int’l L.J. 113 (2010)

Introduction:

In an earlier post, I reported on the Hague Court of Appeal’s decisions in Nuhanović v. The Netherlands and Mustafić-Mujić et al v. The Netherlands regarding the wrongdoing of Dutchbat at Srebrenica. Here, I examine the Court’s holding on the attribution of that wrongdoing to the Dutch state.

The decisions provide stronger and clearer jurisprudential affirmation of the principles of “effective control” and dual attribution than does the Grand Chamber’s judgment in Al-Jedda v. United Kingdom (handed down just two days later). Moreover, the Court of Appeal’s elaboration of “effective control” establishes several key features of the concept as applied in the peacekeeping context. First, the “effective control” analysis should be applied equally to the contributing state and the receiving international organization. Second, “effective control” includes not just giving orders, but also the capacity to prevent the wrongdoing. Third, though the Court’s position on this is slightly more ambiguous, troop-contributing states may sometimes hold that “power to prevent” in virtue of their authority to discipline and criminally punish their troops for contravening U.N. orders. I would go beyond the Court’s reasoning on this third feature to add that the state’s authority with respect to selecting and training troops and contingent commanders is also relevant in this regard.

Since the decisions do not differ on any significant matters of substance, the citations below are to Nuhanović, but apply equally to Mustafić-Mujić. Read the rest of this entry…

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The Hague Court of Appeal on Dutchbat at Srebrenica Part 1: A Narrow Finding on the Responsibilities of Peacekeepers

Published on October 25, 2011        Author: 
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Tom Dannenbaum is a Graduate Associate in the Law and Public Affairs Program at the Woodrow Wilson School of Public and International Affairs at Princeton University. He is author of Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers, 51 Harv. Int’l L.J. 113 (2010)

Introduction:

This summer, the Dutch Court of Appeal in The Hague issued simultaneous and almost identical rulings in two crucial lawsuits regarding the actions of U.N. peacekeepers during the Srebrenica genocide – Nuhanović v. The Netherlands and Mustafić-Mujić et al v. The Netherlands. The cases involve civil claims with respect to the deaths of four Bosnian civilians in the Srebrenica genocide. The victims were killed by Bosnian Serb forces after being evicted by the Dutch battalion (Dutchbat) of UNPROFOR from the U.N. compound at Potočari on the 13th of July 1995. The Court of Appeal decided that Dutchbat acted unlawfully in evicting two of the male victims, that this triggered legal responsibility for the deaths of all three male victims (but not the sole female victim), and that the wrongs could be attributed to the Netherlands.

In this post, I provide a brief description of the procedural and factual background to the case and address the legal issue of Dutchbat’s wrongdoing. Later this week, I will address the potentially more consequential issue of the attribution of that wrongdoing to the Dutch state.

The Court’s analysis of Dutchbat’s wrongdoing has two key features. First, the Court applied human rights obligations abroad. However, it did not do so by finding the relevant treaties to have extraterritorial effect. Instead, it found (i) that the ICCPR had been incorporated into the domestic law of the host state (Bosnia and Herzegovina) and (ii) that the relevant provisions of the ICCPR and ECHR were rules of customary international law that were binding extraterritorially (whether or not the treaty obligations themselves would extend abroad). Second, the ruling characterized Dutchbat’s wrongdoing narrowly: (i) relying on the eviction of the victims from the U.N. compound, not on any responsibility to protect those already outside the compound, and (ii) noting that since the victims were the last persons to be evicted, the judgment provided no indication of whether earlier evictions would have been unlawful (the probable consequences of eviction having become more apparent to Dutchbat over time). Read the rest of this entry…

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“Rescuing ‘Boat People’ in the Mediterranean Sea: The Responsibility of States under the Law of the Sea”.

Published on May 31, 2011        Author: 
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Dr. Efthymios Papastavridis, LLM(Athens), LLM(UCL), PhD (UCL) is Adjunct Lecturer, University of Thrace, Faculty of Law and Research Fellow, Academy of Athens, Greece [papastavridis {at} Academyofathens(.)gr].

1. Introductory Remarks

According to a very recent article by The Guardian, ‘a boat carrying 72 passengers, including several women, young children and political refugees, ran into trouble in late March after leaving Tripoli for the Italian island of Lampedusa. Despite alarms being raised with the Italian coastguard and the boat making contact with a military helicopter and a warship, no rescue effort was attempted. All but 11 of those on board died from thirst and hunger after their vessel was left to drift in open waters for 16 days.’

The aforementioned incident, unfortunately, is not the only one that has occurred in the troubled waters of the Mediterranean Sea in recent years; Cap Anamur or the Pinar are only a couple of cases, in which the legal regime of search and rescue at sea has been seriously questioned. Therefore, a propos this incident as well as in view of the increasing number of “boat people” fleeing from North Africa in unseaworthy vessels, it is well worth making certain short comments with regard to the alleged violation of the law of the sea and the concomitant responsibility of the States involved.

Assuming that both the facts about the location of the vessel and the allegations concerning the inertia displayed by NATO units reported in the above-mentioned article by The Guardian are accurate, the following preliminary remarks are in order: first, since the distress call to the Italian authorities was made while the boat was on high seas (reportedly 60 n.m. off Libyan coast), the relevant applicable law is framed by the rules concerning search and rescue on the high seas. Secondly, it should be ascertained from the outset that NATO as such does not incur responsibility for the alleged internationally wrongful acts. On the one hand, only States are parties to the relevant treaties [with the sole exception of European Union, which is party to the UN Convention on the Law of the Sea (LOSC, 1982), albeit only in respect of matters relating to which competence has been transferred to it by Member States (Articles 4 and 5 of Annex IX of LOSC and EC’s Declaration, 1 April 1998;);. On the other, NATO is not bound by the corresponding rules of customary international law, since it is far beyond the remit of NATO to provide search and rescue assistance to vessels on the high seas. Thus, only Member States participating in the Operation Unified Protector against Libya might have incurred responsibility for the breach of the rules in question.

2. Obligations for Flag and Coastal States under the Law of the Sea

  Read the rest of this entry…

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