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Is There General International Human Rights Law?

Published on October 16, 2014        Author: 

Nigel RodleySir Nigel Rodley KBE, PhD (Essex) is Professor of Law and Chair of the Human Rights Centre at the University of Essex. He is also Chair of the UN Human Rights Committee.

One can’t begin to answer this question without posing two prior questions:

(1) is there general international law (GIL); and

(2) if so, what are its indicia?

I shall offer brief answers as my personal take on the questions, fully conscious that the answers I choose are likely to predetermine the answer to the specific question posed.

As to the first question, I do believe that there is such a thing as GIL.  If I’m wrong, then by definition there is no such thing as general international human rights law (GIHRL). Assuming that there is GIL, then we are confronted by the second question. Here I offer my own understanding of the term.  GIL is that set of obligations presumptively binding on all states independently of any treaty-based obligation.  So, to find a category of GIL, one would look to any plausible combination of the so-called sources of international law, that is, in addition to treaties, customary international law (CIL), general principles of law, judicial decisions (especially international ones) and doctrine, as found in article 38 of the Statute of the International Court of Justice (ICJ). Evidently, CIL will be crucial, if only because a rule or an area of GIL will need at least not to be inconsistent with CIL.

Coming closer to content, GIL would have to include norms of jus cogens, but that would not close the list.  It is significant that one of the few incontrovertible rules of jus cogens is the human right not to be subjected to torture (see Prosecute or Extradite (Belgium v Senegal) in 2012).  The prohibitions of genocide, slavery and racial discrimination and, I venture to suggest, discrimination on grounds of gender probably also qualify, as do other ‘non-derogable’ rights.  Still, if only jus cogens represented GIL, then that would evidently not be enough to establish a GIHRL.  But, by the same token, there would be no GIL of anything.  Just a few rules recognized as jus cogens would be the sum total of GIL.  One only has to state it, I hope, to demonstrate the unsustainability of the proposition. Read the rest of this entry…

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Filed under: EJIL Analysis, Human Rights
 

ESIL-IHRL Online Symposium: Is There General International Human Rights Law?

In June 2014, we launched the ESIL-IHRL interest group online symposia.  In our first blog post we identified three overarching challenges for researchers of international human rights law. These are resistance to containment as a sub-branch; internal-fragmentation; and interdisciplinary expansion.  We start our symposia with a basic question about international human rights law (a question that cuts through both resistance to contentment as a sub-branch and internal fragmentation): Is there general international human rights law?

Any question of general international law queries which international laws attain sufficient generality as to bind all members of the international community. General international law is distinguished from particular international law. The latter only binds a small number of state parties to treaties. Some also argue that there is a third category in between: some norms can be ‘more or less general’. That is they bind a large number of states – including major powers (Oppenheim-Lauterpacht, International Law: A Treatise, Vol. I, 1948, 4-5). Whether one agrees with a definition of general international law and how one accesses it is a matter of controversy. Some hold that general international law is just another name for customary international law (see, famously, Brownlie, ‘Problems Concerning the Unity of International Law, in A. Giuffre ed. International Law in the Time of its Codification. Essays in Honour of Roberto Ago (1987) VoL 1,15). Others argue that general international law is a hybrid form of international law made up of both customary law and conventional law of a general character (Tunkin, ‘Is general International Law Customary Law only?’ 4 European Journal of International Law (1993) 534-541).

In the field of international human rights law, perhaps due to the availability of a diverse number of specialised interpretive bodies ranging from regional human rights courts to UN human rights committees, this question has not been at the forefront of debates within the sub-discipline. Yet, the question of  ‘is there general international human rights law’ is not only timely but also in need of a deeper analysis. This is down to  a) the nearly universal ratification of the United Nations Human Rights treaties and b)  the new turn towards holistic interpretations of human rights law, either through comparative methods à la the European Court of Human Rights (seen most recently in the case of  Centre for Legal Resources on Behalf of Valentin Campeanu v. Romania), or through explicit provisions to take other international human rights law obligations of state parties into account (Article 29(b) of the American Convention on Human Rights and Article 7 of the Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court on Human and People’s Rights). From the perspective of the domestic judge, the question of what the wide array of international human rights obligations amounts to as a whole when interpreting rights also has urgent practical importance. Read the rest of this entry…

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The UK House of Commons calls for Palestine to be recognised as a State.

Published on October 14, 2014        Author: 

Yesterday, the UK House of Commons overwhelmingly adopted a resolution, by 274 votes to 12, which stated that “this House believes that the government should recognise the state of Palestine alongside the state of Israel”, which was amended to include the words “as a contribution to securing a negotiated two-state solution”. This resolution (or motion) is not binding on the government whose official policy is that it “reserves the right to recognise a Palestinian state bilaterally at the moment of our choosing and when it can best help bring about peace”. Government ministers did not vote on the motion in accordance with a long—standing procedural policy that they do not vote on motions introduced by backbenchers (members of Parliament who do not hold ministerial office), and a number of pro—Israeli MPs were absent from the debate, as well as much of the Conservative Party.

The House of Commons debate recalls that in the UN General Assembly when it adopted Resolution 67/19 ((29 November 2012) which “accord[ed] to Palestine non-member observer State status in the United Nations”. The voting for this resolution was 138—9, 41 abstentions (including the UK). The implications of that resolution were discussed in this blog, eg, here, here, and here.

The House of Commons vote is essentially symbolic rather than determinative, and the BBC has reported that a former Foreign Secretary, Sir Malcolm Rifkind, who supports a two—State solution in the Israel—Palestine conflict stated during the debate:

“Symbolism sometimes has a purpose, it sometimes has a role, but I have to say you do not recognise a state which has not yet got the fundamental ingredients that a state requires if it’s going to carry out its international functions and therefore, at the very least, I would respectfully suggest this motion is premature.”

Ha’aretz, one of the leading Israeli newspapers, in its report on the vote, noted that Israel’s ambassador to the UK, Daniel Taub, decided not to give interviews in advance of the vote, in an attempt to ensure that because there was no official acknowledgment by Israel, this would undercut its importance.

The symbolism of this motion, however, goes beyond the vote and beyond the Chamber of the House of Commons. It might well reverberate in international circles, and Ha’aretz has also reported that the UK ambassador to Israel, Matthew Gould, while restating that the vote would not alter the government’s view on recognition, that the issues raised by this debate should not be ignored:

“Separate from the narrow question of recognition, I am concerned in the long run about the shift in public opinion in the U.K. and beyond towards Israel,” [says Gould.] “Israel lost support after this summer’s conflict, and after the series of announcements on settlements. This Parliamentary vote is a sign of the way the wind is blowing, and will continue to blow without any progress towards peace.”

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Announcements: EJIL:Live!; Research Fellowship in Oxford; Syria Conference in Manchester; Calls for Papers: Nordic Approach to International Law, New Voices at ASIL Annual Meeting; Human Rights Essay Competition

Published on October 11, 2014        Author: 

1.  The Oxford Martin Programme on Human Rights for Future Generations invites applications for a Postdoctoral Research Fellow position in the area of Law and Armed Conflict. This is a fixed-term appointment until 31 March 2016, commencing as soon as possible. The postholder will be based at Pembroke College, Oxford. The Oxford Martin Programme on Human Rights for Future Generations  a research programme in the University of Oxford, which focuses on the question of whether human rights constitutes an appropriate framework for confronting some of the most serious problems facing current and future generations. Within this shared framework the research programme focuses on three of the most urgent aspects of insecurity; armed conflict, poverty and environmental change. The successful applicant will be required to conduct research on the themes above as directed by the Programme Co-Directors (which includes Dapo Akande) and to work as part of an interdisciplinary team. Applicants will be expected to write papers and articles linked to the programme’s area of focus, for publication in books, peer-reviewed journals and/or edited books. The deadline for completed applications is 13 October 2014. Further details are available here.

2. In case you missed it: Episodes 1 and 2 of EJIL:Live! are available onlineEpisode 1 presents both video and (edited) audio versions of a “Fireside Chat” between the Editor-in-Chief of the Journal, Joseph H. H. Weiler, and Maria Aristodemou, whose article “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours”, appears in EJIL 25:1 (2014). The audio podcast also features a conversation with EJIL’s Book Review Editor, Isabel Feichtner; and a discussion with the Editors of EJIL: Talk!, Dapo Akande and Marko Milanovic, on the recent decision of the International Court of Justice in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), the crisis in Crimea, and much more. Episode 2 features an extended “Fireside Chat” between the Editor-in-Chief of the Journal, Professor Joseph Weiler, and Oliver Diggelmann (University of Zurich) and Tilmann Altwicker (University of Basel), whose article “How is Progress Constructed in International Legal Scholarship?”, appears in Vol. 25, Issue 2 of EJIL.

3.  The Rethink Rebuild Society in Manchester will hold a conference on 17 October: ‘Syrian Conflict in Regional Crises: Complications, Implications, and the Way Forward’This conference represents a critical forum through which policy makers, NGOs, academics and activists can together identify and discuss the most appropriate British domestic and international policy towards Syria in light of current research and developments on the ground, specifically the emergence of IS (formerly ISIS) and the impact that this will have on British domestic and international policy, as well as action by the international community. Conference speakers include Dr. Christopher Phillips (Queen Mary, University of London), Dr. James Pattison (University of Manchester), Asim Qureshi (Research Director of CAGE Prisoners), Anas Al Abdah (Syrian National Coalition), and Raffaello Pantucci (Royal United Services Institute). The conference deliberations will focus on the following themes:

·  The situation in Syria: misconceptions vs. realities

·  The emergence of IS (formerly ISIS): British jihadists, media coverage, and national policy

·  Where is Syria heading? Decoding the future of Syria and the region

·  Is British policy on the right track?

·  The role of the international community

Further conference information and registration can be found at the conference website. Read the rest of this entry…

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MH 17 Goes to Strasbourg: Some Remarks on Obligations of Prevention, Foreseeability and Causation

Published on October 9, 2014        Author: 

pusztaiDavid Pusztai is a PhD candidate in international law at Gonville and Caius College, University of Cambridge.

The families of the German victims of the tragic MH 17 incident have reportedly decided to claim compensation from Ukraine. Although the details and the legal foundations of the claim have not been disclosed, what we know is that Professor Elmar Giemulla, representing the claimants, intends to bring this case before the European Court of Human Rights [ECtHR]. According to Professor Giemulla, “[e]ach state is responsible for the security of its air space […] If it is not able to [protect its air space] temporarily, it must close its air space. As that did not happen, Ukraine is liable for the damage.”

At the present stage many specific details are unclear, such as the admissibility of the claim or its articulation in the language of human rights law instead of international air law. There is, however, one apparently clear choice of legal strategy based on Professor Giemulla’s announcement: the identification of the internationally wrongful act in question, namely, Ukraine’s omission to close its airspace and to permit continued traffic.

Ukraine was indeed required to “take all practicable measures” to prevent offenses against the safety of international aviation under the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Article 10). Given its sovereignty over its airspace, the customary duty to take reasonable steps to protect aliens within its territory required the same from Ukraine, just as its human rights obligations did under the European Convention of Human Rights. In Ilaşcu v. Moldova and Russiathe ECtHR held that the State’s positive obligations do not cease to exist when de facto it is not able to control a part of its territory. Ukraine, to use the Court’s language, “must endeavour, with all the legal and diplomatic means available to it vis-à-vis foreign States and international organisations, to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention”, even within the territory controlled by separatists (see para. 333 of Ilaşcu).

The legal basis of MH 17′s presence in Ukraine’s airspace was Article 1 of the 1944 International Air Services Transit Agreement, conferring the right on foreign aircraft engaged in scheduled international air services to fly across its territory (both Ukraine and Malaysia are parties to the Agreement). Closing the airspace would have been one of  the “legal means” available for Ukraine under the same Article, given that the exercise of this privilege (the “first freedom of the air”) is subject to the specific approval of Ukrainian authorities in “areas of active hostilities”according to the same Article 1. Further, Article 9 of the 1944 Chicago Convention on International Civil Aviation provides that States may, “for reasons of military necessity or public safety”, restrict or prohibit foreign aircraft from using certain parts of their airspace. One important constraint is that such restriction “shall be of a reasonable extent and location so as not to interfere unnecessarily with air navigation.”  In fact, Ukraine exercised this right before the MH 17 tragedy and closed its airspace up to flight level 320 (32 000 ft); MH 17 was flying at flight level 330.

The question whether Ukraine’s failure to completely close its airspace before the incident is in itself a breach of international law (may it be international air law, international human rights law or law of the treatment of aliens) is an intriguing one, yet the present post focuses on a second possible hurdle for this claim:  the issue of causation (for more on air law aspects, see Professor Abeyratne’s article here) . Article 31 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts [ARSIWA] provides that the obligation to provide reparation is conditional upon a causal nexus between the internationally wrongful act and the damage. Did Ukraine’s decision to leave open its airspace above flight level 320 in the Dnipropetrovsk Flight Information Region cause the downing of MH 17?  Read the rest of this entry…

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International Law MOOCs: A Hazardous Legal Tool?

Published on October 8, 2014        Author: 

A while ago, Jean d’Aspremont engaged in a detailed defence of the ‘hazardous legal tool of blogging’ on this site. (He has since blogged quite prolifically – ie put theory into practice…). 3 ½ years on, I would like to raise a similar point and ask whether “international law MOOCs” (or “international law MOOC-ing”) could be something worth exploring – and find out whether readers have explored MOOC-ing already and would share their views.

MOOC stands for “massive open online course”; the relevant Wikipedia entry describes it as an “online course aimed at unlimited participation and open access via the web. In addition to traditional course materials such as videos, readings, and problem sets, MOOCs provide interactive user forums that help build a community for students, professors, and teaching assistants. MOOCs are a recent development in distance education which began to emerge in 2012.”

My sense is that – while courses on cross-cutting themes flourish (Michael Sandel’s course on justice perhaps being the most prominent example) – Law MOOCs have had a relatively slow start. In a recent blogpost, Loren Turner notes that “Initially, law schools were hesitant to offer MOOC courses in legal studies”, but that “within the last year [ie 2013/14], law schools have begun to embrace the idea as a way of exporting their brands, programs, and faculty to a global audience.” The initial hesitation may be due to a range of factors: perhaps legal topics are (or are perceived to be) technical; perhaps law schools are afraid that free online courses would ‘eat into’ or undermine proper (paid) course provision; or finally, to embrace the cliché, legal academia may just be a tiny bit more averse to experimenting than other disciplines. (With respect to the latter point, I thought it was interesting that a recent report on the Völkerrechtsblog, summarising a joint ILA-ASIL meeting on ‘The Teaching of International Law’, suggests that the meeting remained focused on core university teaching. I did not attend so do not know what was said; but was struck by the fact that the use of videos in classroom teaching was considered ‘sensationalist’.)

But the times are probably a-changing. Read the rest of this entry…

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The Tories and the ECHR: Mere Incompetence or Deliberate Deception?

Published on October 7, 2014        Author: 

The Conservative Party in the UK has released a paper entitled ‘Protecting Human Rights in the UK – The Conservatives’ Proposals for Changing Britain’s Human Rights Laws’. This is in the aftermath of David Cameron’s pledge during the Conservative Party conference last week to scrap the Human Rights Act 1998, the domestic statute which transformed the European Convention of Human Rights into UK law, allowing for ECHR rights, as transformed through the HRA, to be directly invoked before and applied by UK courts. This is to be replaced by a ‘British Bill of Rights and Responsibilities’, a draft of which the Tories have pledged to shortly publish for consultation.

The pledge, and the paper, have already provoked a flurry of responses, both in the press and in numerous blog posts (though the best summary is aptly given by the Daily Mash in an article entitled ‘Human rights laws to be replaced by gut instinct‘). Many of these articles and blog posts, including the post here by Martin Browne,  have made a number of important points regarding the impact of such a change in UK law and international law, as well as with respect to devolution and the Good Friday Agreement. This short post aims to simply highlight the impact of the proposed Conservatives’ changes from the perspective of public international law. This impact would be rather minimal, except that the proposed changes will increase the danger of the UK running afoul of its international obligations, of it engaging its international responsibility. That is, of course, unless the real aim is to withdraw from the ECHR.

Read the rest of this entry…

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The UK Conservative Party Proposes Changes to Human Rights Protection

Published on October 6, 2014        Author: 

For those accustomed to the debate surrounding the European Convention on Human Rights in the UK, it is a refreshing to hear a clear statement from Chris Grayling, the Secretary of State for Justice, that the Convention is “an entirely sensible statement of the principles which should underpin any democratic nation,” and this on the 14th anniversary of the Human Rights Act 1998 taking legal effect, which allowed any individual to seek redress for human rights violations directly in UK courts.

Headlines have trailed that the Secretary of State, on behalf of the Conservative Party and in advance of the UK general election in May 2015, has issued a threat that the UK will denounce the Convention and repeal the Human Rights Act unless the European Court of Human Rights changes its approach and respects parliamentary sovereignty. Leaving aside the fact that the Court does respect parliamentary sovereignty, subjecting human rights protection to the control of one nation State would be dangerous and would reverse in an instant the progress made in the setting of human rights standards in the last 60 years.

Beyond the headlines are more damning proposals, accurately summarised here – that essentially would remove the right of some individuals to hold the State to account and establish asymmetrical application of human rights dependent upon the qualities of an individual’s ‘responsibilities in society’, the seriousness of the case, and the wonderfully vague threshold of whether the case arises in an area of law that already applies human rights law.

Read the rest of this entry…

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Announcements: EJIL: Live!; ILA-ASIL Asia-Pacific Research Forum Call for Papers; Conference on Children & International Criminal Justice at Georgia Law; Conference at Aarhus University on Inter/Trans-national Law; Conference in London on EU law and International Law

Published on October 4, 2014        Author: 

1.   In case you missed it: Episodes 1 and 2 of EJIL:Live! are available onlineEpisode 1 presents both video and (edited) audio versions of a “Fireside Chat” between the Editor-in-Chief of the Journal, Joseph H. H. Weiler, and Maria Aristodemou, whose article “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours”, appears in EJIL 25:1 (2014). The audio podcast also features a conversation with EJIL’s Book Review Editor, Isabel Feichtner; and a discussion with the Editors of EJIL: Talk!, Dapo Akande and Marko Milanovic, on the recent decision of the International Court of Justice in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), the crisis in Crimea, and much more. Episode 2 features an extended “Fireside Chat” between the Editor-in-Chief of the Journal, Professor Joseph Weiler, and Oliver Diggelmann (University of Zurich) and Tilmann Altwicker (University of Basel), whose article “How is Progress Constructed in International Legal Scholarship?”, appears in Vol. 25, Issue 2 of EJIL.

2.  Call for Papers: 2015 ILA-ASIL Asia-Pacific Research Forum, Taipei, Taiwan. The Chinese (Taiwan) Society of International Law will hold the ILA-ASIL Asia-Pacific Research Forum on May 25-26, 2015 in Taipei, Taiwan. The theme of the Research Forum is “Integrating the Asia-Pacific: Why International Law Matters?” Paper proposals should be submitted by January 20, 2015 to ila {at} nccu.edu(.)tw. The call for papers is available here. Other inquiries can be directed to Pasha Hsieh, co-chair of the Research Forum (pashahsieh {at} smu.edu(.)sg).

3.  Conference on Children and International Criminal Justice at Georgia Law.  The International Criminal Court’s Prosecutor Fatou Bensouda will deliver the keynote address at   “Children & International Justice,” an international experts’ conference, to be held Tuesday, October 28, 2014, at the University of Georgia School of Law in Athens. The law school is home to Professor Diane Marie Amann, who serves as Bensouda’s Special Adviser on Children in and affected by Armed Conflict. Taking part will be more than 2 dozen experts in children’s rights, international criminal law, and transitional justice, who will address a range of issues in a public morning session and in closed afternoon workshops. Experts will be drawn from academia, practice and from international organizations. The discussions will assist advising in the ongoing process of development of the Office of the Prosecutor Policy Paper on Children. The keynote address and the plenary presentations, along with student rapporteurs’ Chatham-House-Rules accounts of the breakout sessions, will be published in the Georgia Journal of International & Comparative Law.  Sponsors, in addition to the journal and the law school, are the law school’s Dean Rusk Center for International Law & Policy, the Georgia Law Project on Armed Conflict & Children, the African Studies Institute of the University of Georgia, the Planethood Foundation, and the American Society of International Law-Southeast. Details are available here and registration can be done here.

4.  The Department of Law at Aarhus University, Denmark, is organising the opening seminar of the INTRALaw project, on 24 October 2014. INTRALaw  - International and Transnational Tendencies in Law – encompasses a range of cross-disciplinary research projects led by researchers from the Department of Law at Aarhus University, Denmark. Read the rest of this entry…

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Our terrorists, your terrorists? The United Nations Security Council urges states to combat “foreign terrorist fighters”, but does not define “terrorism”

Published on October 2, 2014        Author: 

The aim of Resolution 2178 of the UN Security Council, which was passed unanimously on 24 September, is laudable in principle: to combat the growing jihadi “terror tourism”, coming from France, Germany, the UK and other Western states, in a comprehensive manner, not just through criminal and police laws. In its preamble, the eight-page Resolution explicitly recognises that international terrorism cannot be defeated through military and other repressive measures alone. However, it does not define terrorism, its key object of reference, instead speaking vaguely of “terrorism in all forms and manifestations”. Its operative paragraphs (paras. 2 ff.) refer to “terrorists”, “terrorist groups”, “individuals” and “person[s]” travelling abroad to fulfil a terrorist “purpose”, making no distinction between them. This terrorist purpose supposedly consists of the perpetration or preparation of terrorist acts, or the participation in terrorist acts or terrorist training. UN member states must prosecute the persons in question. Furthermore, they must make any financing of such journeys and assistance in carrying them out, including the recruitment of “terrorist” fighters, subject to criminal sanctions and prosecution. Finally, the listing of the persons in question – famously called a ‘civil death penalty’ by Dick Marty, the former chairman of the Legal Affairs and Human Rights Committee of the Council of Europe – is also provided for (para. 7).

But how is all of this to work under the rule of law if the phenomenon to be combatted is not defined? The Resolution remains silent on this issue, referring only to fighters belonging to ISIL, ANF and other groups deriving from Al-Qaida (para. 10), without, of course, presenting this as a definitive list. One wonders why the Resolution did not adopt para. 3 of Security Council Resolution 1566. This paragraph defines terrorist acts as acts (1) committed with the intent to cause death or serious bodily injury, or taking of hostages, (2) with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which (3) constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism. This is, in essence, the definition of international terrorism recognised by customary international law, which also forms the basis for a UN draft treaty of 2010 and is referred to in international jurisprudence, such as the famous jurisdictional decision (15 Feb. 2011) of the UN Special Tribunal for Lebanon, mainly authored by the late Antonio Casesse.

Unfortunately, Resolution 2178 ignores all of these definitions and thus ultimately leaves it up to each UN member state to apply the measures called for to those individuals defined as “terrorist” by that respective state itself. Read the rest of this entry…

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