We will have more substantive commentary on the judgment in the week to follow. For now, however, I’ll just note some key paragraphs in the Court’s judgment: para. 58 (inter-temporal law), para. 60 (state acts may be unlawful but still be acts jure imperii), paras 77-78 (no territorial tort exception to immunity for the acts of the armed forces of a foreign state on the territory of the forum state in times of armed conflict; note the Court’s extensive reliance on domestic judgments and those of the European Court of Human Rights), para. 91 (no exception to state immunity merely because a serious violation of IHL or IHRL is alleged), para. 93 (no conflict between a substantive rule prohibiting certain conduct that has the status of jus cogens and the procedural rule establishing state immunity; therefore, no jus cogens override of immunity), paras. 101-102 (immunity does not depend on the availability of an alternative avenue for redress), para. 108 (because immunity is upheld, no need to examine questions whether individuals are directly entitled to compensation for violation of IHL and whether states may validly waive the claims of their nationals in such cases), para. 119 (immunity from enforcement), paras. 130-132 (jurisdictional immunity in exequatur proceedings).

A long-anticipated judgment, and one in which I think the Court both reached the correct result and did so in a well-reasoned decision – but I’m sure it’ll prove controversial nonetheless.

What legal regime applies to the route through Iranian territorial waters? The ordinary starting point would be that a State may temporarily suspend innocent passage its territorial waters, without discrimination, for essential security reasons (Article 25(3), UN Convention on the Law of the Sea). However, as Hormuz is a strait used for international navigation, Iran lacks that ordinary power.

Under UNCLOS, where a strait is used for international navigation and there is no equally convenient route through open high seas waters, then “all ships and aircraft enjoy the right of transit passage, which shall not be impeded” (Art. 38(1)). This would seem decisively against Iran, but for the fact it is only a signatory to the UN Convention on the Law of the Sea and has never ratified it. The precise legal regime applying to Iran and the Strait of Hormuz is thus open to debate.

Some States, especially the US and UK, contend the UNCLOS regime of unimpeded transit passage is customary international law. The alternative is that outside UNCLOS there is only a customary international law right of non-suspendable innocent passage. The Corfu Channel case established in 1949 that warships, and a fortiori merchant ships, have a right of innocent passage through international straits which the coastal State may not suspend.

It was certainly held under the Corfu Channel case that in a time of heightened tensions Albania would have been entitled to regulate (though not prohibit or effectively nullify) the passage of warships through its waters. (See further the discussion in Churchill and Lowe.) Thus it is clearly arguable that under the non-suspendable innocent passage regime a coastal State retains its right to prevent non-innocent passage by individual foreign vessels; while under the UNCLOS transit passage regime it would lack any such rights of enforcement (though it would retain the right to formally regulate certain matters).

Thus, there is some basis for an argument that Iran could seek to restrictively regulate passage through its territorial sea short of suspending innocent passage – provided that as a matter of custom the Corfu Channel and not the UNCLOS rule applies.

However, in the comments to Sahib Singh’s recent post on Iranian sanctions Dan Joyner raised the question whether Iran could take countermeasures in the Strait in response to illegal interventions against its nuclear programme. Rather than close the Strait, Dan suggested Iran might be justified in seizing and confiscating vessels of the nationality of the States responsible for various illegal interventions against its nuclear programme (presuming these acts could be proven the responsibility of Israel and the United States).

Ordinarily, under the ILC Articles on State Responsibility, countermeasures must:

• be targeted only against the responsible State;
• be preceded by an offer to negotiate;
• consist only of the injured State withholding performance of one or more international obligations owed to the responsible State;
• be proportionate and readily reversible; and
• not involve the use of force.

Technically, seizing individual vessels under Dan’s scenario would not involve closing the Strait. Could it be described as suspending the right of innocent passage of certain targeted States? Perhaps, though I have some (possibly formalistic) qualms about the idea that suspending a freedom from interference can create a positive right to interfere. That aside, would seizing merchant vessels involve a prohibited use of force under the UN Charter? The majority view among scholars would appear to be that such a “police action” is not usually tantamount to a use of force (see e.g. Guyana v. Suriname), though much might depend on how such an interdiction operation was carried out.

The suggestion some vessels could be seized as a countermeasure is thus not implausible, but the real question would be sufficient proof of attribution of the complained of conduct to the targeted States.

Finally, one might note that actually closing the whole of the Strait by force could constitute a blockade of the ports of Kuwait, Qatar, Bahrain, the United Arab Emirates and Iraq. This would appear to be a prima facie act of aggression against these States as the General Assembly’s Definition of Aggression (UNGAR 3314) includes blockade of ports under Article 3(c). Such an act of aggression would, at a minimum, justify Security Council intervention though we could debate what other action might be permissible in such a case.

This is far from a fully developed analysis, so thoughts are welcome. My apologies if my replies to comments are less than timely.

Christian Tams sends along the following announcement.

Frankfurt Investment Law Workshop 2012 – Preferential Trade and Investment Agreements: A New Ordering Paradigm for International Investment Relations? (16-17 March 2012)

For a couple of years, the Frankfurt Investment Law Workshop has been a forum to discuss conceptual issues of international investment law. Following previous events assessing the relationship between Investment Law and General International Law: From Clinical Isolation to Systemic Integration? (see here) and International Investment Law and Its Others (forthcoming 2012), this year’s workshop will explore the growing network of preferential trade and investment agreements (PTIAs) and assess their impact on ordering international investment relations. It will be held in Frankfurt/Main on 16-17 March 2012, immediately following the Frankfurt Investment Arbitration Moot.

The workshop will open with a keynote speech by Professor Raúl Emilio Vinuesa. This is to be followed by panels addressing the interaction between PTIAs and traditional BITs; the impact of PTIAs on the Trade/Investment divide; and the role of regionalism and multilateralism in international investment law.

The event is designed to be a forum for discussion and much room is allocated to debate. Anyone interested in participating should contact Mrs. Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt, RuW, Grüneburgplatz 1, 60323 Frankfurt am Main, Germany (S.Schimpf {at} jur.uni-frankfurt(.)de) by 28 February 2012.

(On a slightly more serious note, we’ll try to have commentary on the judgment as soon as possible).

The International Law Association (ILA) British Branch invites submissions for papers for its Annual Spring Conference on “Security and International Law”, which will be hosted by the University of Nottingham School of Law from 20-21 April 2012.  The theme of the conference is open to broad interpretation in terms of human, political, military, socio-economic, environmental and energy security as well as security issues arising from the operation of international law in territorial and extra-terrritorial spaces, such as the high seas, aerospace, or the Internet. Full details of the Call for Papers are available here. Details of the Pre-Conference MPhil/PhD Workshop are listed in the Call for Papers in the same document.

Submissions for the Annual Spring Conference should be received by 31 January 2012 and expressions of interest for the Pre-Conference by 1 February 2012.

Joanna Harrington is a Professor with the Faculty of Law and an Associate Dean with the Faculty of Graduate Studies and Research at the University of Alberta in Canada.

As I write this post, college instructor and former politico Léon Mugesera has, at last, been placed on a plane to Rwanda by Canadian government officials to face charges of inciting genocide stemming from an inflammatory anti-Tutsi speech delivered almost twenty years ago, and which was replayed during the height of the genocide. (Twitter has been used by Rwanda’s Foreign Minister to confirm that Mugesera is en route to Kigali.) For many Canadians – and many Rwandans – the departure of this accused genocidaire will not be mourned, with many saying that he should never have been admitted into Canada in the first place. But the latest round in the Mugesera saga does raise concerns for the domestic significance, and thus impact, of the individual complaints procedure found replicated in each of the UN human rights treaties, as well as the need for greater transparency and detailed guidance from the UN human rights treaty bodies themselves with respect to the issuance of requests for interim measures.

 The Mugesera saga

After Mugesera’s speech in November 1992, Rwandan authorities did seek the equivalent of an arrest warrant, but Mugesera had fled the country, and by mid-1993, he had secured permanent residence for himself and his family in Canada. Two years later, Canada’s Minister of Immigration and Citizenship commenced proceedings to send Mugesera back to Rwanda, having learnt of the allegations against him. Under Canadian law, a permanent resident (but not a citizen) may be deported if it is determined that before or after being granted permanent residency, the individual committed a criminal act or offence. In this case, the speech was the alleged criminal act that was committed (and not disclosed), with the speech said to constitute an act of incitement to murder, hatred and genocide, and a crime against humanity. Several years of legal proceedings then ensued, culminating with a unanimous Supreme Court of Canada decision in 2005, which also reproduces Mugesera’s speech as an appendix for all to read.

The speech, however, is not what is at issue in the latest installment in the Mugesera saga. What is at issue appears to be the issuance of a request for interim measures by the Committee Against Torture, asking Canada to hold off deporting Mugesera while a claim is pending before the Committee that Mugesera will face torture in Rwanda. (I say “appears to be” as many reports simply state that an amorphous “UN” has asked Canada to hold off deporting Mugesera, which does no favours for the UN’s reputation among its critics, while those reports that specify the Committee Against Torture, do not use the interim measures terminology.) 

Obligations under the Torture Convention

Canada has been a “party” (and not simply a “signatory” despite journalistic reports) to the 1984 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment since 1987, and it is this treaty which brought into being the 10-person body known as the Committee Against Torture. Canada is also one of 64 states that has voluntarily declared its acceptance of the Committee’s competence to “receive and consider” complaints from persons alleging to be victims of Convention violations, as set out in article 22. It is the choice of these 64 states to opt-in to an international process for individual complaints, and it is this voluntary opt-in that provides the international legal basis for the consideration of claims made by individuals within the jurisdiction of Canada, including non-nationals, alleging violations of the Torture Convention. Many of the cases lodged against Canada (and against other states) typically arise within an extradition or deportation context and involve the absolute prohibition found in article 3 on sending a person to another state “where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

For many years, Canadian officials took heed of this prohibition, and Canada’s treaty obligations, by waiting for the situation in Rwanda to improve so as to ensure that there would be no real or probable risk of torture were Mugesera to be returned. After six years of evaluation, Canada had decided that there was no risk, with one of the recent flurry of decisions relating to this case indicating that on 6 December 2011, Mugesera received an 80-page decision outlining why the Canadian government believed that he would not face significant risks if returned to Rwanda (see para 4). There is also mention in the judgment of Rwanda having provided assurances, but no copies of these assurances appear to be publicly available. The most recent twist in the saga was a communication lodged with the Committee Against Torture, with media reports suggesting that the Committee has issued a request to halt the deportation, although again no copy is made publicly available and no notice is posted on the Committee’s website.

Interim measures requests

States, in their wisdom and at their choice when drafting the Torture Convention, gave the Committee Against Torture the power to establish its own Rules of Procedure (see article 18(2)), and the Committee has indeed adopted extensive Rules of Procedure to govern its proceedings (UN Doc. CAT/C/3/Rev.5). Buried within these rules is Rule 114(1), which provides that the Committee “may transmit to the State party concerned, for its urgent consideration, a request that it take such interim measures as the Committee considers necessary to avoid irreparable damage to the victim or victims of alleged violations.”

While wrapped in the niceties of diplomatic language, a request for interim measures is essentially a request for a stay of proceedings while a matter is pending for consideration before the Committee. As I have argued in the past: “Similar provisions can be found in the procedural rules for many international courts, commissions, and committees, and so it is hardly surprising that the [Committee Against Torture] would recognize the need for such a rule to protect the interests of the parties and to facilitate the proper conduct of the proceedings pendente lite. (J. Harrington, “Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee and Requests for Interim Measures of Protection” (2003) 48 McGill LJ 55 at 66.) It’s clearly not good practice to change the situation as between the parties to a dispute, once that dispute has been lodged with the forum that both parties have agreed to use.

Interim measures requests have a protective purpose, to preserve an individual’s life or physical integrity. They are not issued automatically, as a matter of course, (although this was a criticism made against the Committee Against Torture in the past), and many states do abide by interim measures requests in light of their protective purpose and rationale. A quick review of the Committee’s most recent annual suggests that a case has to be made to secure an interim measures request, with only 24 out of 37 requests for interim measures being granted during the most recent reporting period (para. 89). Moreover, as is made plain in Rule 114(3), a state can provide information to rebut the Committee’s request for interim measures, making a convincing case for no request to be issued, or for an interim measures request to be revoked as a result of further information provided to the Committee by the state.

Canada’s response

In the Mugesera case, rather than publicly rebutting whatever grounds underpin the issuance of the yet-to-be-released interim measures request, by using, for example, the material contained in the 80-page decision mentioned in one recent judgment, or by disclosing a copy of Rwanda’s assurances, Canada’s lawyers have opted instead for a form over substance approach. They argue that interim measures requests carry no legal weight and that a treaty ratified by Canada does not have domestic effect unless transformed into domestic law. I call this “form over substance” since it emphasizes the non-binding nature of what takes place within the UN human rights bodies, rather than focusing on whether there is a substantive risk of torture for Mugesera.

It is also a disappointing response, because in the Canadian case touted for the proposition that interim measures requests are not binding for Canada, known as Ahani v. Canada (Attorney General), counsel for the applicant, the Crown and Amnesty International, failed to draw the court’s attention to the turning-point decision of the Human Rights Committee in Piandiong v. Philippines, holding that an indication of interim measures is effectively binding on a state party. For further discussion of Piandiong’s importance, see Gino J. Naldi, “Interim Measures in the UN Human Rights Committee” (2004) 53:2 ICLQ 445-454. The court also failed to consider the view of the Judicial Committee of the Privy Council in Lewis v. Attorney General of Jamaica, (2000), [2001] 2 AC 50, that individuals must be entitled to a stay of proceedings while a petition is pending for consideration before an international human rights body, even when that body is not a court and does not issue judgments, on the grounds of due process. The non-binding nature of the individual complaints procedure before an international human rights body does not ipso facto make the rules governing that procedure to be non-binding. Otherwise, we could ignore all the procedural rules concerning time limits and replies.

Canada’s response also suggests a lack of nuance in reconciling the domestic with the international, with nuance being necessary to give any of the individual complaints procedures before the various UN human rights treaty bodies any real significance within a state. Canada has also previously stated that it “fully supports the important role mandated to the treaty bodies, such as the Committee Against Torture, and gives careful consideration to the interim measures requests issued by them.” Some indication of that careful consideration would be welcome, rather than resorting to form over substance, particularly since Canada has been warned by the Committee when it previously failed to abide by a previous interim measures request that in voluntarily accepting the Committee’s competence to hear individual complaints, Canada is viewed as having undertaken an obligation to cooperate with the Committee in good faith in applying the procedure (see TPS v. Canada).

Whatever one’s views on the merits of the Mugesera claim, a formalistic disregard for an interim measures request sets a poor example for other states who may wish to follow Canada’s path, notwithstanding a strong substantive case showing a real risk to life or limb for an individual.

Criticism for the treaty bodies

But perhaps this lack of state support for interim measures requests also reveals a need for efforts at the international level, including efforts to tighten the grounds for issuing such requests. At the very least, greater transparency is needed from the human rights treaty bodies in order to judge the information being marshaled in support of an interim measures request. There is, however, the concern that some have used an interim measures application as a last-ditch effort to stall for extra time or as an act of grandstanding to obtain publicity for the cause. Last year, the European Court of Human Rights acknowledged what it called “an alarming rise in the number of requests for interim measures” (having experienced a 4000% increase in interim measures requests for 2006-2010), and expressed concern about the “risk that the small minority of applicants who do face a genuine threat to life and limb in the country of destination will not have their cases examined in time to prevent removal.” The Court has also issued a practice direction indicating that applications for interim measures must be individuated, fully reasoned, accompanied by all relevant documentation, including the domestic court decisions, and sent in good time before the expected date of removal. Similar guidance could be developed and relied upon at the UN level.

With some relatively minor exceptions international humanitarian law (IHL) applies only when a certain threshold is met: the existence of an armed conflict or belligerent occupation. The purpose of this chapter is to explore the many difficulties surrounding the classification of armed conflicts in modern IHL. While the two main archetypes – international armed conflict (IAC) and non-international armed conflict (NIAC) – are reasonably clear in their basic forms, their boundaries are complex and obscure. Many recent conflicts do not fit the classical archetypes well, provoking debates on spill-over, internationalized, mixed or hybrid and even transnational armed conflicts.

The chapter strives to show that there are some differences between IACs and NIACs that cannot be erased simply by reasoning from analogy or from moral imperative, and that therefore the classification of armed conflict is an issue that matters and will continue to matter for the considerable future. The principal goal of the chapter is clarity, clarity in a conceptual and doctrinal framework which can enable legal and policy debates to be properly had and argued without their participants talking past each other. In attempting to advance such clarity, the chapter discusses the framework of war and peace in classical international law, the conceptual revolution brought about by the aftermath of the Second World War, and finally the modern law, by developing a comprehensive taxonomy of armed conflict.

506. With respect to the application of the Covenant and the international law of armed conflict (also referred to as international humanitarian law or “IHL”), the United States has not taken the position that the Covenant does not apply “in time of war.” Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of application. To cite but two obvious examples from among many, a State Party’s participation in a war would in no way excuse it from respecting and ensuring rights to have or adopt a religion or belief of one’s choice or the right and opportunity of every citizen to vote and to be elected at genuine periodic elections.

507. More complex issues arise with respect to the relevant body of law that determines whether a State’s actions in the actual conduct of an armed conflict comport with international law. Under the doctrine of lex specialis, the applicable rules for the protection of individuals and conduct of hostilities in armed conflict are typically found in international humanitarian law, including the Geneva Conventions of 1949, the Hague Regulations of 1907, and other international humanitarian law instruments, as well as in the customary international law of armed conflict. In this context, it is important to bear in mind that international human rights law and the law of armed conflict are in many respects complementary and mutually reinforcing. These two bodies of law contain many similar protections. For example prohibitions on torture and cruel treatment exist in both, and the drafters in each area have drawn from the other in developing aspects of new instruments; the Commentaries to Additional Protocol II to the Geneva Conventions make clear that a number of provisions in the Protocol were modeled on comparable provisions in the ICCPR. Determining the international law rule that applies to a particular action taken by a government in the context of an armed conflict is a fact-specific determination, which cannot be easily generalized, and raises especially complex issues in the context of non-international armed conflicts occurring within a State’s own territory.

Note how the US report has now started using the customary buzzwords of the IHL/IHRL project (‘complementary’, ‘mutually reinforcing’), while at the same time presenting its lex specialis argument in less drastic terms than before. The last sentence of para. 507 is particularly noteworthy, as the US now argues that the relationship between the two bodies of law requires a fact-specific determination in any given case, rather than just treating IHL as displacing IHRL wholesale, while it leaves room for complementary application particularly in times of internal armed conflict. (Note the construction ‘non-international armed conflicts occurring within a State’s own territory’, which is presumably meant to exclude cross-border NIACs of the sort that the US claims it is engaged in with Al-Qaeda).

We’ll see whether the US position will continute to evolve – but there is some reason here for optimism. The reference to lex specialis is still unfortunate, in my view, as that pithy Latin phrase has very little to teach on the interaction between norms (see more here, and in a more updated form in the last chapter of my book). In that regard, readers might also be interested in the debate between Gabor Rona and Jens Ohlin at Opinio Juris and Jens’ new blog, the LieberCode.