The latest issue of the European Journal of International Law has been published and is available here and here. This is Issue 3 of Volume 20. Readers will remember that the current volume of EJIL celebrates the 20th Anniversary of the Journal. In each issue of this volume, there is an anniversary article as well as a symposium which focusses on themes or issues where there has been significant change in international law over the past twenty years. In this issue the Anniversary article is by Anne Peters, Professor of Public International and Constitutional Law at the University of Basel and is titled “Humanity as the Alpha and Omega of Sovereignty”. The Symposium is on Globalization. In addition to these features, and others, this issue also contains two EJIL:Debates – one on the Kadi case and the other on “Soft Law”. The editorial by Professor Joseph Weiler (see here) elaborates on the pieces contained in this issue of EJIL.

The full table of contents is as follows: Read the rest of this entry »

This past summer, British Prime Minister Gordon Brown announced the establishment of an inquiry into the UK’s involvement in the Iraq War. The Iraq Inquiry, which is independent of the government, began work at the end of July.  The committee will consider events from the summer of 2001 until the end of July 2009 when all British forces left Iraq. This means that  the inquiry has a mandate to consider the lead up to the Iraq war, including the circumstances in which the decision was taken to commit the UK to the invasion, as well as the period of the conflict and the post conflict reconstruction. In establishing the inquiry, the Prime Minister stated that the

“the primary objective of the committee will be to identify lessons learned. The committee will not set out to apportion blame or consider issues of civil or criminal liability.” (see here at column 24, 2nd para)

The Inquiry will be conducted by a team of five headed by a former civil servant, Sir John Chilcot. It includes an academic (Sir Lawrence Freedman), a historian (Sir Martin Gilbert), a former diplomat (Sir Roderic Lyne) and a member of the House of Lords (Baroness Usha Prashar).

International lawyers, and indeed the general public would be interested to know, that the Chair of the Inquiry announced in its initial press conference that the inquiry would seek to

form impartial and evidence-based judgements on all aspects of the issues, including the arguments about the legality of the conflict. (see here)

Given that it is unlikely that the question of the legality of the war in Iraq will come before an international tribunal, the Iraq Inquiry may well be the most important public and formal process for the determination of the legality of the UK’s (and US’) use of force in Iraq. Last week, the Inquiry announced the appointment of  Dame Rosalyn Higgins as its international law adviser. Dame Rosalyn was Professor of International Law at the London School of Economics up until 1995 when she became a Judge of the International Court of Justice (ICJ). She was President of the ICJ from 2006 until February 2009 when she stepped down from the Court. In addition the Inquiry has engaged General Sir Roger Wheeler, the former Chief of the General Staff (i.e head of the British Army) as its military adviser. 

Like the Prime Minister, Chair of the Inquiry has stressed that “the Inquiry is not a court of law and nobody is on trial” (statement at the Chair’s initial press conference). However, there remains some interest as to whether the inquiry could lead to prosecutions, if it were to find that the UK went into the war illegally. The Inquiry has announced that it will call as witnesses the Prime Minister and former Prime Minister Tony Blair. Could Tony Blair be prosecuted for taking the UK into an illegal war? Read the rest of this entry »

Editor’s Note: This is part of a series of post on the Treaty of Lisbon. The first post in the series was by Laurent Pech and can be found here

Now that Ireland has voted yes in a referendum earlier this month – remarkable how democracy swings! – the European Union’s Treaty of Lisbon looks set to enter into force over the next couple of months.  Barring any further upheaval, such as a recalcitrant Czech President refusing to sign, or further delay allowing the UK Conservative Party (if they win the next general election in the UK) to set up their referendum, the curtain will fall over the European Union’s [EU] long constitutional episode which followed the Treaty of Nice.  It is by no means the end of the play though.  The curtain may fall for the general public, but behind the scenes much of the work remains to be done.  The entry into force of Lisbon will not close institutional reform.  Quite the contrary, it will set in motion an intense period of institutional adaptation, governed by often sketchy Treaty provisions which are indeterminate and riddled with opportunities for inter-institutional strife.  This is particularly the case for the conduct of the EU’s external relations – or external action, as the Treaties now call it.  The role and position of the High Representative for Foreign Affairs and Security Policy, who will also be a Commission Vice-President, will need to be clarified.  His or her relationship with both the Commission President and with the new European Council President will need to be developed.  The EU’s External Action Service will need to be set up.  These are just some examples.

The focus of this post is not on such institutional issues, but on other questions regarding the EU’s future as an international actor, subject to international law.  What are some of the main changes which may affect that future?  Here are some projections.

The International Legal Personality of the European Union

Readers probably know this by now, but it is still momentous: the European Community will be no more.  The difficult construction of a European Union, based on, and complementing the European Community, will be replaced by a single EU, which will have legal personality (Art 47 Treaty of the European Union [TEU]).  That will terminate the rather tedious academic discussions about whether the EU, as opposed to the EC, has international legal personality (it clearly had, at the latest from the moment it started concluding international agreements).  Instead of two international legal persons, the EU and the EC, there will be only one.  This also means that the various EU external policies will need to be further integrated.  Read the rest of this entry »

Elizabeth Prochaska’s recent post addressed the Canadian case of the Prime Minister v Omar Khadr from the perspective of its relevance to the law of diplomatic protection. I would like to highlight two other interesting international human rights law questions raised by the case. One is whether Khadr was at any relevant time “subject to Canada’s jurisdiction” for the purposes of Canada’s obligations under the ICCPR and the Convention on the Rights of the Child and the other is how we classify the conduct of Canadian intelligence officials who interrogated Khadr in Guantanamo in terms of human rights law.

Canadian officials interrogated in Guantanamo Bay Khadr several times between 2003 and 2004, for “law enforcement and intelligence” purposes. Khadr at that point was 16 or 17 years old, had never met with a lawyer, had not spoken with his family, and had been detained continuously at Guantanamo Bay since the age of 15. The Canadians were aware that Khadr was accused of having killed an American soldier, and although he had not been charged, the possibility of a trial before a military commission was reasonably foreseeable. They also knew that the US military was recording all of their interviews with Khadr, and thus that this material might well become part of a criminal prosecution against him. The Canadians subsequently transmitted summaries of their interrogations of Khadr to US authorities, with no caveats as to their use in criminal proceedings. 

Some further information came to light in July 2008, as a result of a Canadian Supreme Court decision concerning Canada’s obligations to disclose to Khadr’s counsel the interrogation summaries which had been transmitted to the US authorities. In a document dated April 2004 and marked “Secret,” a foreign affairs official provided a summary of the Canadian interrogation of Khadr that took place in March that year. According to the summary, the Canadian official who attended Guantanamo to interview Khadr was told by his US interrogator that “In an effort to make him more amenable and willing talk, [redacted] has placed Umar on the ‘frequent flyer program’ for the three weeks before [the Canadian official's] visit, Umar has not be permitted more than three hours in one location, thus denying him uninterrupted sleep and a continued change of neighbours. He will soon be placed in isolation for up to three weeks and then he will be interviewed again.” The Canadian official proceeded with the interview of Khadr, despite learning this information.

Assuming for argument’s sake that 3 weeks sleep deprivation of a 16 year old who has already been detained for 2 years amounts to inhumane treatment under the ICCPR Art 7 and CRC Art 37(d), the question remains whether Canada (through its agents) owed any human rights obligations to Khadr when they interrogated him in these circumstances. Khadr was clearly not within Canada’s custody at this time; Canadian officials were not detaining him. Hence, under a strict factual control test, Khadr would not be within Canada’s jurisdiction. On the other hand, the line of reasoning which emphasises jurisdiction as reflecting a specific relationship between the state and the individual (which could include nationality, and also state action directly affecting the rights of the individual) would allow us to argue that Khadr is in fact “subject to” or “within” jurisdiction, just as the Uruguayan nationals denied passports by Uruguayan officials in the US were still “subject to” Uruguay’s jurisdiction. There does seem to be something quite perverse in concluding that, because Khadr was detained by the US, Canadian officials can take advantage of US abusive conduct by interviewing Khadr irrespective Canada’s obligations under the ICCPR and the CRC. Perhaps this is what the Human Rights Committee had in mind when it warned that “it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.”

This leads to the second question, which is: how do we classify the decision of the Canadian interrogator to continue with the interview after he was explicitly informed that Khadr had been treated abusively in order to make him “more amenable” to talk to the Canadian. At a common sense level, the interviewer who proceeds after learning of this is clearly contributing to or furthering the purpose of the abusive treatment. But what does this amount to in terms of framing the state’s conduct in human rights terms? It seems to me that in these circumstances, the interviewer (acting within his delegated authority and so also incurring the responsibility of the state) has become a participant in the abusive conduct. This, in turn, violates the state’s duty to respect the right of the person within its jurisdiction to not be treated inhumanely (CRC, Art 37(d), ICCPR, Art 7) and not be coerced into making a statement (CRC Article 40.2.b(iv)). It may also violate the state’s obligation to ensure – as a standard of due diligence – that its officials do not acquiesce in or otherwise contribute to the abusive conduct of another state (the Committee against Torture has made this most explicit in paragraph 17 of its General Comment 2).

Does this also amount to “complicity”? The difficulty here, as Marko Milanovic has pointed out in an earlier post, is that it is not clear whether we have a non-criminal standard of complicity that could be applied. The standards of knowledge and intent required by Article 16 of the Articles on State Responsibility seems prohibitively high and may not capture even the conduct of the Canadian official in this case.

Yesterday the ICTY Appeals Chamber issued (what is to be hoped is) the final decision in the Karadzic/Holbrooke immunity agreement saga. For previous commentary on the issue at EJIL: Talk!, see here and here. Though the Appeals Chamber had some quibbles with the Trial Chamber’s approach in denying an evidentiary hearing, accepting facts alleged by Karadzic pro veritate, and then discounting them, it nonetheless (quite rightly) dismissed Karadzic’s appeal.

Thus, the Appeals Chamber held that even if the alleged Karadzic immunity agreement existed, and was made with the actual authority of the Security Council (not merely an apparent authority, as Karadzic contended), this agreement could still not alter the jurisdiction of the Tribunal without a Security Council resolution to that effect (paras. 34-38). Likewise, the Chamber held that not even an agreement entered into by the Prosecution could bind the Tribunal itself (para. 41), and that Karadzic could not avail himself of the abuse of process doctrine. Like the Trial Chamber, the Appeals Chamber allowed Karadzic to pursue the Holbrooke agreement issue insofar as it may be relevant to sentencing and mitigation (paras. 54-55).

As Marko reported in the summer, the House of Lords (or to be more precise, the Appellate Committee of the House of Lords) has been replaced as the final court of appeal for the different legal systems that form the UK by a Supreme Court. The new Supreme Court took over the functions of the Law Lords on 1 October 2009. The Appellate Committee of the House of Lords, consisting of fully qualified and professional judges appointed to the House of Lords (one of the two chambers of the British Parliament), had been the final court of appeal in the UK since 1876. Prior to that date, the House of Lords (the legislative body) had served as the final court of appeal and before 1399, both Houses of Parliament  (the Lords and the Commons) heard petitions for judgments of lower courts to be reversed.

When compared with other countries, the position of the House of Lords (in its judicial capacity) was anomalous in that it failed to represent the principle of separation of powers. Though the Law Lords (or Lords of Appeal in Ordinary as they were formally designated) were professional judges, usually appointed from the lower courts, they were members of the House of Lords in its legislative capacity and could sit and vote in the legislative chamber. In practice, they rarely did so but on occasion they did. The Lord Chancellor was until 2005 head of the House of Lords in both its legislative and judicial capacities and was also a member of the cabinet! The Law Lords heard appeals in committee rooms in Parliament and judgments were delivered in the chamber of the House of Lords.

The new Supreme Court is the final court of appeal for England & Wales, for Northern Ireland and for civil cases arising from Scotland. It is composed of 12 Justices of the Supreme Court (a new term). All the existing law lords were automatically appointed to the Supreme Court though they no longer have the right to sit and vote in the House of Lords. In a move with symbolic significance, the Supreme Court has moved out of the  House of Lords and occupies a separate building on the opposite side of Parliament Square in Westminster, London.

The Supreme Court held its first hearings on October 5 with appeals on cases of great significance for international law. Its first cases deal with the legality of the UK domestic orders which implement Security Council Resolution 1267 (for media reports see here; for details on the Supreme Court site, see here and here). Under that resolution UN Member States are obliged to freeze the assets of persons designated by the relevant Sanctions Committee as being ‘associated with’ Al-Qaida and the Taliban. The Supreme Court held hearings last Monday (Oct 5) on those cases which Antonios recently commented on here on EJIL:Talk!  These are the cases of Hay v HM Treasury ([2009] EWHC 1167 (Admin)) (where unusually the appeal has gone straight from the High Court to the Supreme Court) and A, K, M, Q & G v HM Treasury [2008] EWCA Civ 1187. In both cases, persons subjected to the Al-Qaida and Taliban (United Nations Measures) Order 2006 (’AQO’) which implemented SC Resolution 1267 argue that the Order impermissibly deprives them of fundamental rights (principally the right of access to a Court) without the explicit permission of Parliament. Judgment in these cases is expected next month and we will have comment on them here on EJIL:Talk! Read the rest of this entry »

Antonios Tzanakopoulos, D.Phil. cand. (Oxford), LL.M. (NYU) (Athens), is Lecturer in Public International Law at the University of Glasgow. A relevant paper presented at the University of Vienna in September 2009 can be found here in draft form.

I. Introduction: the 1267 Regime and Domestic Courts

For quite some time now there has been significant discontent about the fundamental rights implications of Security Council sanctions, in particular individual sanctions under the regime established by Resolution 1267 (1999) and subsequent Resolutions (see eg this blog here and here). The 1267 regime obligates UN Member States to freeze the assets of persons designated by the relevant Sanctions Committee as being ‘associated with’ Al-Qaida and the Taliban. But those identified by the Committee have no recourse against their designation, and no other remedy except the possibility to petition the Committee for delisting. Decisions on such petitions are taken in camera and no justification is required (see the Committee’s Guidelines).

Since Security Council decisions are not directly enforceable in most municipal legal orders, Member States of the UN have had to transpose the relevant measures imposed by the Council. This was done through the adoption of domestic implementing acts, usually of administrative character, in order to comply with their obligations under Article 25 of the UN Charter. The fact however that sanctions were imposed ‘on the ground’, as it were, by domestic administrative decisions, combined with the lack of any other recourse, has led affected individuals to attack the domestic implementing measures in the courts of various Member States (see here for the Monitoring Team reports, detailing challenges in the Annex).

II. Domestic Courts Have Teeth

The ECJ, in a decision controversial in its reasoning, if not in its outcome, was the first  court to finally annul such ‘domestic’ implementing measures (in this case adopted on the EC level) acceding to the claim of two listed persons, Kadi and the Al Barakaat Foundation. That decision would have effectively forced the 27 Member States of the Community in breach of their international obligations under the Resolutions and Article 25 of the Charter. The ECJ, however, suspended the effect of the annulment for three months, by which time the Community had adopted new implementing measures.

Still, the ECJ may just have provided the impetus that other domestic courts needed in order to embark upon their own ‘decentralized resistance’ against Security Council sanctions under the 1267 regime. The CFI annulled the domestic implementing measures with respect to Othman, another listed person, without even granting the grace period that the ECJ provided for in Kadi. But most importantly, a month after Othman, on 10 July 2009, the Queen’s Bench of the English High Court quashed the Al-Qaida and Taliban (United Nations Measures) Order 2006 (‘AQO’) in Hay v HM Treasury ([2009] EWHC 1167 (Admin)). Read the rest of this entry »

Elizabeth Prochaska is a Barrister at Matrix Chambers, London. She has recently completed a period as Judicial Assistant to Baroness Hale and Lord Brown in the House of Lords.

Omar Khadr, a Canadian citizen captured by US forces in Afghanistan at the age of 15 and imprisoned in Guantanamo Bay for 7 years, recently succeeded in convincing the Canadian Court of Appeal to order the Canadian government to request his immediate repatriation by the US  (Khadr v. Prime Minister of Canada 2009 FCA 246). This is no small achievement. Until the Court of Appeal’s judgment, no court – international or municipal – had recognised an obligation on a government to exercise diplomatic protection to safeguard nationals from ill-treatment at the hands of a foreign state.

 The doctrine of diplomatic protection under which the state asserts its right to make claims on behalf of nationals injured abroad is a promising remedy for the human rights abuse of aliens. Governments can engage in all manner of conduct (some of it traditionally diplomatic, some of it outright hostile) under the guise of the doctrine. But as this brief summary of the current status of diplomatic protection shows it has yet to reach its full potential in either international or municipal human rights law.

 In its report on the subject in 2006, the International Law Commission (ILC) proposed a Convention on Diplomatic Protection which would attempt to resolve the dislocation between the traditional understanding of diplomatic protection as a discretionary right of the state and contemporary human rights vested in individuals. However, the ILC did not adopt the recommendation of its Rapporteur, John Dugard, that the Convention require states to guarantee an individual right to diplomatic protection. Instead, Draft Article 19, entitled ‘Recommended Practice’, suggests that states should be encouraged to exercise diplomatic protection ‘especially when significant injury occurred’ to the national. Drafted in soft language, the Article does not purport to create any binding obligations on the state. Discussions in the Sixth Committee at the sixty-second session of the General Assembly 2007  raised the prospect of imposing a positive obligation on states to protect their nationals abroad, but diplomatic protection is not up for consideration by the Sixth Committee again until next year and it remains to be seen whether a Convention will ever be approved. For now at least, customary international law offers little comfort to those suffering human rights abuse abroad.

 In municipal law, the status of an individual right to protection, or a duty to protect, as the Canadian courts conceptualised it in Khadr, is equally uncertain. Read the rest of this entry »

In my previous post on this topic, I argued that the international reaction to the Honduran coup potentially augurs a shift in foundational norms governing the relationship between international and domestic legal authority.  I also hinted that I regard such a shift as ill-advised, and noted that some of those in the forefront of the reaction appear to have given little thought to the long-term implications.

As, Doug Cassel’s ASIL Insights analysis notes, “Ordinarily international law imposes its own, autonomous norms for the permissible conduct of a government.  Questions of domestic law – including constitutionality – are left to domestic authorities, both as a matter of their sovereign entitlements, and because they are presumed better able to interpret their own constitution.”  The two reasons that Cassel cites are distinct:  the latter is a matter of respect for a foreign pouvoir constitué, on the ground that standards of legal interpretation are themselves a matter of local law; the former is a matter of respect for a foreign pouvoir constituant, on the ground that where permanently effective, breaches of constitutional order (whether by insurrection or by an existing regime’s pattern of practice) beget their own legality.  For foreign courts, both of these are ordinarily rationales, not for a mere “margin of appreciation,” but for judicial abstention.

However, it is not unknown for international legal questions to turn on a finding about compliance with domestic law, such as where treaty provisions provide that exceptions to specified human rights must be, inter alia, “non-arbitrary” and delineated in domestic law.  In such circumstances, assessing a claim of  violation requires an independent basis for ascertaining the requirements of domestic law.   The criteria for establishing a violation might be relatively deferential, yielding to plausible claims of local expertise in interpreting local norms; interpretation of legal (including especially constitutional) norms depends on all manner of historical, ideological, political, linguistic, and jurisprudential idiosyncracies, and a high court’s authority to say what is lawful counts for much, even in the face of text apparently to the contrary.  Still, one cannot exclude a second-guessing of local judicial authorities on the merits, especially in cases where courts are suspected of participating in a sham. Read the rest of this entry »

I agree entirely with the first point that Professor Paust makes in his previous post , about the impossibility of imputing the non-state actor attacks to Pakistan due to incapacity. Certainly imputation doesn’t make sense on these facts as he outlines them. However, the second point he makes goes to the heart of my question.

Professor Paust asks, rhetorically, how attacking Al Qaeda in Yemen could be an attack on Yemen as such. But saying that selective targetings of non-state actors on the territory of another state is not an attack on that state ‘as such’ makes those last two words do an awful lot of work, work not everyone thinks they can do. Read the rest of this entry »