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Turkey’s Derogation from Human Rights Treaties – An Update

Published on August 18, 2016        Author: 

In an earlier post of 27 July I provided a first assessment of Turkey’s declared derogation from the European Convention on Human Rights (ECHR) and an assessment what kind of measures could be expected, as derogations both from the ECHR and the International Covenant on Civil and Political Rights (ICCPR). This new post provides an update, partly in response to commentators.

On 11 August, the United Nations published Turkey’s notification notification of derogations from the ICCPR. According to its text, the actual measure was ‘effected’ more than a week earlier, on 2 August. Turkey’s notification, dated on 21 July, refers to the 90-day state of emergency that had been declared on 20 July under domestic law. The most interesting element in Turkey’s ICCPR notification is that it provides a list of articles from which Turkey ‘may’ derogate:

The decision was published in the Official Gazette and approved by the Turkish Grand National Assembly on 21 July 2016. In this process, measures taken may involve derogation from obligations under the International Covenant on Civil and Political Rights regarding Articles 2/3, 9, 10, 12, 13, 14, 17, 19, 21, 22, 25, 26 and 27, as permissible in Article 4 of the said Covenant.

Again Turkey follows the recent example of France in specifying the articles under the ICCPR but not under the ECHR, and by not being explicit what the actual derogations are, instead only stating that derogations from the ICCPR ‘may’ result from measures taken pursuant to the state of emergency.

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Announcements: New Additions to the UN Audiovisual Library of International Law

Published on August 14, 2016        Author: 

New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Professor Emmanuel Decaux on “Les défis juridiques de la Convention internationale pour la protection de toutes les personnes contre les disparitions forcées” and Mr. Olufemi Elias on “An Introduction to the Law of the International Civil Service” and “The Chemical Weapons Convention, the Organisation for the Prohibition of Chemical Weapons and Non-State Actors”.

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Filed under: Announcements and Events
 

Justice for Syria? Opportunities and Limitations of Universal Jurisdiction Trials in Germany

Published on August 12, 2016        Author: 

During the ongoing conflict in Syria, horrific international crimes are being committed on a daily basis. With impunity for these crimes prevailing on an international level, the attention of Syrian and international actors is turning towards trials under the principle of universal jurisdiction in national courts. This blog post provides a systematic overview of current trials and investigations in Germany relating to Syria and discusses the possibilities and limitations of such trials.

Impunity Prevailing on International Level

Many of the grave human rights violations in Syria are well documented by international bodies, international NGOs such as Amnesty International and Human Rights Watch (which rely on evidence from Syrian activists who are documenting these kind of crimes under great personal risk), and national organizations such as the Syrian Network for Human Rights, the Syrian Observatory for Human Rights and the Violations Documentations Centre.

However, geopolitical concerns impede effective and timely prosecution of human rights violations and international crimes: The hands of the International Criminal Court (ICC) appear to be tied and a double Security Council Veto by the permanent members, Russia and China, blocked a resolution to refer the situation to the Court. Despite the draft of a Statute as early as 2013, the call for the establishment of a hybrid tribunal by the UN Commission of Inquiry and academic support for this approach as the next best alternative (Van Schaack, Just Security; Sayapin, EJIL Talk), no tangible mechanism has resulted thus far. It follows that the only remaining and realistic avenue to seek justice for international crimes perpetrated in Syria is for other countries to prosecute these crimes by way of universal jurisdiction. Read the rest of this entry…

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Jurisdictional Qualms about the Philippines v. China Arbitration Awards

Published on August 11, 2016        Author: 

As is well known, the 1982 United Nations Convention on the Law of the Sea (here; hereafter Convention) provides for compulsory dispute settlement, albeit subject to various limitations and exceptions. In principle, any dispute regarding the interpretation or application of the Convention may be submitted to binding settlement (Article 286), via a choice for the International Tribunal for the Law of the Sea, the International Court of Justice or arbitration under Annex VIII (Article 287). In case of varying choices by the parties, the default procedure is an Annex VII special arbitration, and this was the procedure used by the Philippines to initiate the case against China.

 The latest award in this case (here; hereafter Award on the Merits) has already been commented upon (here, here and here; and here, here, here, here, here and here). Nevertheless, a critical reading of that award and its predecessor on jurisdiction and admissibility (here; noting other views here and here; hereafter Award on Jurisdiction) may bare certain weaknesses that go to their core, and hence possibly their validity, namely whether the Tribunal possessed the requisite jurisdiction to decide certain disputes and render its award on the merits in the first place. Possible flaws lie with its claim that certain disputes do not require it to determine sovereignty, with its claim that China does not invoke historic title, and with its claim that no issues of delimitation are at stake.

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The South China Sea case: Chess Arbitration?

Published on August 10, 2016        Author: 

This post looks into the wider questions The South China Sea recent award raises and its possible impact.   Looking back at the rare examples in international law in which States chose not to appear to participate in the proceedings, I address questions such as “what good is an award that cannot be enforced” and what role has arbitration in that context.  I argue that contrasting with conventional dispute resolution in which the award puts an end to a dispute, the award in the South China Sea case was neither an end in itself, nor necessarily an attempt to get leverage on the part of Philippines, to negotiate with China at bilateral level. After all, counsel for Philippines himself has argued that “bilateralized negotiations had failed”.  I argue that much like a chess-movement, the South China Sea case is rather the means for something else in a broader chess-like strategy: (a) as a brick on which other disputes can be built (b) to attempt the multilateralization of the dispute concerning the South China Sea, to involve all those countries with claims in respect of the disputed sovereignty and entitlements over the South China Sea.

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Is the EU really more precautionary than the US? Some thoughts in relation to TTIP negotiations

Published on August 9, 2016        Author: 

On January 26, 2016, during a public meeting organized by the Trans-Atlantic Consumer Dialogue, the European Commissioner for Trade, Cecilia Malmström, said that the precautionary principle (PP), the principle which enables rapid response in the face of a possible danger to human, animal or plant health, or to protect the environment, is a fundamental rule in the European policies and its compliance is ensured both in the legislative process and trade agreements. Therefore, the principle is central to the negotiations surrounding the Trans-Atlantic Trade and Investment Partnership (TTIP). Despite verbal assurances given by Commissioner Malmström, who has radically excluded a possible lowering of PP standards in Europe, the issue deserves to be addressed more carefully.

Europe is often considered more precautionary than the US. A comparative analysis demonstrates that the difference between the two approaches rests on the perception of risks that characterize social realities, and not by the will to apply the principle more or less intensely. As the most careful doctrine already showed, if a wide variety of situations where there is a need for precautionary measures are analyzed, it may be found that application of the the principle in US law is not all that dissimilar to what we see in the European context. Read the rest of this entry…

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EJIL:Talk! Article Discussion: Reply to Tams, Kufuor and de Wet

Our heartfelt thanks to the editors of EJIL:Talk! for convening an online symposium to discuss our recently-published EJIL article, Backlash against International Courts in West, East and Southern Africa: Causes and Consequences. We are also grateful to Kofi Kufuor, Christian Tams, and Erika de Wet for their thoughtful comments. We hope that our study will convince other scholars to, as Tams suggests, “take [] lesser-known courts seriously,” especially those operating in developing country contexts. In this brief reply, we respond to several points made by the three distinguished commentators and situate our article’s findings in a wider perspective.

Our article ends with a discussion of whether governmental efforts to sanction or reform the three sub-regional courts succeeded or failed. Erika de Wet explains that the SADC story did not actually end with the adoption of the new Tribunal protocol. She provides helpful additional information about why Zimbabwe felt targeted by the Tribunal, and she convincingly argues that the attempt by civil society groups to challenge the new protocol before the African Union’s human rights institutions was a strategic misstep.

De Wet also mentions efforts to pressure SADC member states “to revoke their previous decisions to abolish the individual complaints procedure.” Like de Wet, we are skeptical that any litigation strategy can reverse this political decision. There is still an open question as to whether other advocacy strategies might change the status quo. A more promising avenue for advocates to pursue includes lobbying SADC member states to reconsider or refrain from ratifying the 2014 Protocol — thereby preventing its entry into force. But blocking the creation of a Tribunal whose jurisdiction is limited to interstate disputes will be far easier than convincing national political leaders to revive a sub-regional court that includes individual access. Read the rest of this entry…

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Filed under: EJIL, EJIL Article Discussion
 

Reactions to the Backlash: Trying to Revive the SADC Tribunal through Litigation

Published on August 5, 2016        Author: 

Introduction

In their article ‘Backlash against International Courts in West, East and Southern Africa: Causes and Consequences’, Professors Alter, Gathii and Helfer eloquently portrays the political context leading to the rise and demise of the SADC Tribunal, the consequence of which was also the demise of an individual claims procedure for individuals in relation to human rights violations by member States. The life-span of the SADC Tribunal was a mere five years, for even though it was officially suspended in 2012, its functioning was effectively suspended since 2010.

At the time of its suspension, the SADC Tribunal had handed down 19 decisions of which 11 concerned Zimbabwe. Of these decisions eight were related to the Campbell and Others v Zimbabwe (Merits), Case No SADC (T) 2/2007, (8 November 2008)). Two of the three remaining cases involving Zimbabwe also concerned the violation of human rights. In Luke Tembani v Republic of Zimbabwe (Case No SADC (T) 07/2008 (14 August 2009)) the applicant had been denied a fair hearing after the seizure of his mortgaged property, while in Gondo and Others v Republic of Zimbabwe (Case No (SADC) (T) T) 05/2008 (9 December 2010)), the Zimbabwean Government had refused to give effect to court orders of Zimbabwean domestic courts that provided relief for victims of violence and thereby denying their right to a remedy. The final decision concerning Zimbabwe, United People’s Party of Zimbabwe v SADC and Others, Case No SADC (T) 12/2008 (11 June 2012)) related to the exclusion of the United Peoples’ Party of Zimbabwe from the power-sharing process in Zimbabwe that was mandated by the SADC during an Extraordinary Summit in March 2007.

Of the remaining eight cases five concerned internal employment disputes between the SADC and its employees. The remaining three decisions concerned a default judgment against the Democratic Republic of Congo (DRC) for unlawful seizure of property (Bach’s Transport (PTY) LTD v Democratic Republic of Congo Case No SADC (T) 14/2008 (11 June 2010)); a denial of jurisdiction in a case involving deportation from Tanzania due to lack of exhaustion of local remedies (The United Republic of Tanzania v Cimexpan (Mauritius) LTD and Others, Case No SADC (T) 01/2009 (11 June 2010); and a condonation of a late filing of defence by the Government of Lesotho in a case concerning the cancellation and revocation of mineral leases (Swissbourgh Diamond Mines and Others v The Kingdom of Lesotho, Case No. SADC (T) 04/2009 (11 June 2010)). Read the rest of this entry…

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The Importance of History in Understanding African Integration

Published on August 5, 2016        Author: 

We live in an era of international courts; since the explosion in international, regional and sub-regional organizations, the world has seen a number of these organizations create judicial organs to clarify treaty law and thus resolve any disputes between the parties to treaties and any disputes between private actors and their governments.

Africa came late to creating regional sub-regional courts – this being explained by the suspicion of domestic judges, and the belief that international relations were the preserve of the executive arm. However it is interesting to note that Africa’s sub-regional courts are the focus of a burgeoning scholarship with a particular stress on how they fit into the matrix of treaties, protocols and domestic politics of the states that have created them. Thus the paper by Alter, Gaathi and Helfer (AGH) – “Backlash against International Courts in West, East and Southern Africa: Causes and Consequences” – is a welcome addition to understanding Africa’s transnational judicialism.

However as exposed by AGH not all is plain sailing with attempts by member states of sub-regional organizations to undermine, if not dismember, the judicial organs they have created. The explanation by AGH is thorough; disassembling the intricate moves, legal, organizational and diplomatic, to gut courts in ECOWAS, SADC and the EAC. AGH focus on moves by Gambia, Zimbabwe and Kenya. They seek to explain why Gambia failed, Zimbabwe succeed and Kenya found itself somewhere in between success and failure. AGH provide a very sound analysis and I am of the view that their work carries out important spadework as dissecting the “backlash” against transnational courts is essential for those scholars, activists and policy-makers with an eye on deeper integration in Africa.

However, there is the need for further exploration to enable the understanding of the progress or otherwise, of transnational judicialism. Thus I suggest observers should widen the scope of the analysis set in motion by AGH. Read the rest of this entry…

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Filed under: EJIL, EJIL Article Discussion
 

Comments on “Backlash against International Courts in West, East and Southern Africa: Causes and Consequences” by Karen J. Alter, James T. Gathii and Laurence R. Helfer

Published on August 4, 2016        Author: 

The article by Karen Alter, James T. Gathii and Laurence Helfer is instructive and, notwithstanding its considerable length, very readable. I learned a lot – about the three specific ‘court backlashes’, about the institutional setting in which the three courts under review operate, and about the factors determining the success or failure of ‘court-curbing’ – and felt engaged throughout. My comments are in three parts: First, I am making a fairly simple, perhaps banal, point that is implicit in the authors’ detailed research. Second, I mention factors that I felt could be relevant in assessing the success or failures of court backlash (but that are not the focus of the article). And third, I compare the three ‘African’ backlashes studied by the authors to the one that currently dominates debates in Europe, viz the backlash against investor-State dispute settlement (ISDS).

Proliferation and the new complexity of the international judiciary

 While Alter, Gathii and Helfer engage with the particularities of court design in three regional settings, their article brings home a fairly straightforward point: it shows how diverse and how complex the landscape of international courts and tribunals, in the present ‘post-proliferation’ era, has become. Of course, everyone today accepts that ICJ, ITLOS, ECtHR, etc. have been joined by ‘new courts on the block’. But I am less sure that a sufficient number of mainstream international lawyers working in the field of dispute settlement are really following through on this insight: So much of the disciplinary scholarship (and I certainly will not exclude myself here) remains focused on the ‘usual suspects’; and, with the exception of human rights, there still is precious little on the regional courts outside Europe. (Try ‘EACJ’ in the ppl.nl database – only two entries come up. And how many of EJIL: Talk!’s readers could have named the seat of the SADC Tribunal or of the ECOWAS Court in an international law pub quiz, or if Dapo Akande had taken the matter up in one of his trivia competitions?) Against that background, Alter’s, Gathii’s and Helfer’s scholarship – including but not limited to their current EJIL Article – is eye-opening because it takes the lesser-known courts seriously. And perhaps not only that: the present article, as well as Alter’s and Helfer’s earlier work on the Andean Tribunal, may suggest that in order to study the more important developments relating to international courts today we should be looking, not to Strasbourg, Geneva or The Hague, but to Abuja, Arusha and Quito. Read the rest of this entry…

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Filed under: EJIL, EJIL Article Discussion