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Gray v. Germany and the Extraterritorial Positive Obligation to Investigate

Published on May 28, 2014        Author: 

Last week a chamber of the European Court of Human Rights decided Gray v. Germany, no. 49278/09. The applicants were the sons of a British man who died in the UK after a doctor gave him the wrong drugs on a house visit. The doctor was German, and was hired by the UK National Health Service to provide out-of-hours home service to NHS patients. The doctor returned to Germany after the applicants’ father’s death. After a criminal malpractice investigation was conducted in the UK, Germany refused to extradite the doctor on the basis that criminal proceedings would ex officio take place in Germany. Those proceedings were later summarily completed, with the doctor sentenced to a fine, without notifying the applicants that the case would be disposed of summarily. The applicants claimed that this violated the procedural limb of Article 2 ECHR, read jointly with the overarching Article 1 obligation to secure human rights.

For various reasons, the Court rejected the applicants’ claim on the merits. But what makes this case interesting is that neither the German government, nor the Court sua sponte, thought that there was any Article 1 jurisdiction issue in saying that Germany had the positive obligation to investigate an unintentional death that took place in the United Kingdom, and at that at the hands of a private individual. Look at just how broad this position is – broader, indeed, than what I have argued for, since in my view a positive obligation would only apply if the death took place in an area controlled by the state or with state involvement.

Again, neither the Court nor the German government apparently thought that any Article 1 problem arose, presumably because the doctor was on German territory even though the applicant’s father had been in the UK. This well shows how in the small, politically unimportant cases people just tend to follow the universalist impulse and are oblivious to the existence of threshold applicability problems. Note, however, that the Court must ex officio confirm that the Convention applies and accordingly mind that it has subject-matter jurisdiction. If the issue was raised perhaps the Court would have decided it differently, but even so the case stands for the proposition that ECHR states parties have the duty to investigate even accidental deaths that took place outside any area under their control if the alleged perpetrator is located in such an area.

Stated in these terms, the implications of such an expansive approach are I think clear. Remember Alexander Litvinenko’s assassination in London, ostensibly at the hands of Russian agents? His family took a case against Russia to Strasbourg, which (I’ve been told) is on standby while issues around possible inquiry proceedings are being resolved in the UK. Suddenly that case becomes much easier for the applicants – regardless of whether the radioactive poison was administered by a Russian agent, if the alleged perpetrator is in Russia then Russia would have an Article 2 obligation to investigate. Similarly, if say a British tourist killed somebody in Thailand but then managed to escape back to the UK, the family of the deceased person in Thailand would have Article 2 rights vis-à-vis the UK and the UK would have to investigate the death, at least if it refused extradition. And this approach would a fortiori apply to cases where there is state involvement, e.g. when a soldier kills a civilian in an area not under the state’s effective control, but later returns to the state’s own territory.

In short, the Court seems to have actually created a comprehensive aut dedere, aut judicare principle under the ECHR, that applies even to unintentional taking of life, and probably did so unwittingly. Obviously we’ll have to wait and see whether Gray will have such an impact, or whether the Court will somehow manage to reverse course.

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Disentangling the Knots: A Comment on Ambos’ ‘Palestine, ‘Non-Member Observer’ Status and ICC Jurisdiction’

Published on May 27, 2014        Author: 

2014.05.25.Valentina PhotoValentina Azarov (pictured left) is Lecturer in Human Rights and International Law, Al-Quds Bard College, Al-Quds University, Palestine. Chantal Meloni2014.05.22.FotoTessera2 (pictured right) is Adjunct Professor of International Criminal Law, University of Milan, Italy and Alexander von Humboldt fellow, Humboldt University of Berlin.

In a recent post on ‘Palestine, non-Member Observer Status and ICC Jurisdiction’, Kai Ambos raises important points that require, in our view, some basic clarifications. While many of these arguments have been made previously by eminent experts and practitioners, they have become particularly relevant with the recent accessions by Palestine to 20 international treaties (see here and here) including some of the most important international human rights and humanitarian law instruments, as well as a letter dated 8 May 2014 addressed to President Abbas by 17 human rights groups calling for Palestine to seek access to the ICC.

Arguably the most critical issue raised by Ambos concerns the 2009 Declaration lodged by the Palestinian government pursuant to Article 12(3) of the International Criminal Court Statute accepting the jurisdiction of the ICC. Ambos claims that this Declaration is void because, in his view UN General Assembly Resolution 67/19 (2012), which granted “non-member observer state status” to Palestine does not possess retroactive effect. However, as explained below, a GA resolution is not constitutive, nor even declarative of the existence of a ‘State’, since, strictly speaking, formal recognition is a state act (Crawford 2006, 27-28). It merely provides further indication of Palestine’s treatment as a ‘State’ by international actors. In fact, as will be argued, the ICC could have exercised its jurisdiction over Palestine on the basis of the 2009 Declaration, even prior to the UN GA Res 67/19.

Validity and ‘Retroactivity’ of the 2009 Declaration 

At the outset, Ambos claims that the 2009 Declaration was “not validly lodged,” citing a November 2013 Report on Preliminary Examination Activities by the ICC Prosecutor’s Office (OTP). However, there are conspicuous differences in the language used by the ICC Prosecutor in this report and in its decision of 3 April 2012 not to open an investigation. The official 2012 decision does not hold that the declaration was not validly lodged. Rather, in that ‘decision not to decide’ (see Dapo Akande), the Prosecutor stated that the ‘Office could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of States Parties resolve the legal issue relevant to an assessment of article 12.’  The 2013 report quoted by Ambos is a communication of the office’s activities that clearly carries less weight than an official decision. It is not meant to have dispositive value but is merely part of the OTP’s regular reporting duties: “In order to promote transparency of the preliminary examination process the Office aims to issue regular reports on its activities and provides reasoned responses for its decisions either to proceed or not proceed with investigations” (par. 13).

As pointed out elsewhere, there are well-grounded reasons to believe that the Prosecutor’s 2012 decision was wrong.   Read the rest of this entry…

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Announcements: Territorial Conflict Conference in Lancaster, Call for Papers for Conference in Louvain on Territoriality, Conference in Berlin on the Wall case

Published on May 26, 2014        Author: 

1. Conference on 21st Century Borders: Territorial Conflict and Dispute Resolution, 13th June 2014, University of Lancaster. 21st Century borders are coming under increasing strain with the recent annexation of the Crimea and disputes over islands and maritime delimitation in Asia, amongst others. This conference, organised by the Centre for International Law and Human Rights at Lancaster University Law School will explore the causes and dynamics of contemporary territorial disputes as well as mechanisms to resolve them. Full details and registration information can be found at the Centre’s website.

2.  A workshop for junior scholars in international will be held in Belgium, at the University of Louvain, on 13-14 November 2014 on the topic of “International Law and Territoriality – Protecting, making sense and going beyond sovereign limits in contemporary practice”. Immediately after the workshop, the biannual joint conference of the Société française pour le droit international and the Deutsche Gesellschaft für Internationales Recht will take place from 14-15 November 2014, on ´The Law of International Boundaries´. Proposals (4 pages at most, written either in French, German or English), together with a curriculum vitae must be sent not later than 15th June 2014 to pierre.dargent {at} uclouvain(.)be. The extended version of the call for papers is posted on ESIL website.

3. Ten years ago, on 9 July 2004, the International Court of Justice rendered its advisory opinion concerning the ‚Legal consequences of the construction of a wall in the Occupied Palestinian Territory’. On the occasion of the 10th anniversary of the ICJ’s Wall Opinion, ‘Bread for the World’ and ‘MISEREOR’, two German NGO’s, together with Prof. Andreas Zimmermann from the the Human Rights Centre of the University of Potsdam (Germany) organise an international conference to take place in Berlin on 7th July 2014. Representatives of human rights organisations, as well as international legal scholars, policy makers and others will discuss the continued relevance of the Court’s opinion on the situation on the ground, as well as its impact on the development of general international law and will also focus on the impact of the wall and its associated regime on the population, the role of the United Nations and the obligations under international law, as circumscribed by the ICJ, of third parties including the European Union in ensuring the implementation of the legal obligations set forth in the Court’s advisory opinion. For more information see here.

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The Continental Shelf Delimitation Agreement Between Turkey and “TRNC”

Published on May 26, 2014        Author: 

nicholasioanNikolaos A. Ioannidis is a PhD candidate in Public International Law at University of Bristol.

Last month, Turkey submitted a note verbaleto the Secretary-General of the United Nations setting out the geographical coordinates of its continental shelf in the Eastern Mediterranean, as established by a delimitation agreement with the “Turkish Republic of Northern Cyprus” (“TRNC”). The agreement was signed on 21 September 2011 and ratified by the Turkish government on 29 June 2012. A map published by the Turkish Ministry of Foreign Affairs depicting the agreement is pictured below. (The reasons why the “TRNC” is in quotation marks will be elaborated below.) By transmitting this document to the UN Secretary-General, Turkey sought to achieve the publication of the agreed coordinates in the Law of the Sea Bulletin (LSB), where official submissions by states regarding the law of the sea are published. Although Turkey has not acceded the UN Law of the Sea Convention (‘LOSC’), it acted in accordance with article 84(2) LOSC (due publicity of charts or lists of geographical coordinates regarding continental shelf delimitation). Nonetheless, the submission of Turkey was not listed as an official deposit on the website of the Department of Oceans and the Law of the Sea (DOALOS).TRNC

The Turkish approach on the regime of islands

The delimitation agreement outlines some of Turkey’s longstanding positions on the law of the sea. It deals only with the continental shelf and does not provide for the delineation of an exclusive economic zone (EEZ). While there is nothing precluding coastal states from choosing which maritime zones to claim and/or to delimitate, Turkey’s choice not to delimit an EEZ with the “TRNC” alludes to the Turkish position that islands in certain regions (implying the Aegean Sea) should not be entitled to claim maritime zones of their own other than territorial sea or should have reduced capacity to generate such zones. This stance was formulated in the context of the dispute between Turkey and Greece concerning sovereignty over the maritime space of the Aegean Sea;  since the 1970s, Turkey has sustained that the Aegean islands are situated on the continental shelf of Anatolia (Turkey) and, consequently, do not have a continental shelf of their own. This matter was an apple of discord between the Turkish and the Greek delegations over the course of the Third United Nations Conference on the Law of the Sea (‘UNCLOS III’). In the end, by virtue of article 121(2) LOSC, the Conference recognised the rights of islands to generate maritime zones. Article 121 LOSC reflects customary law (ICJ, Nicaragua v Colombia (2012), para 139) and, accordingly, applies to non-states parties as well.

Turkey’s resentment at the provisions on the regime of islands was one of the reasons it voted against and has not yet acceded to the LOSC (see Plenary Meetings 160 and 189). For the sake of clarity, it should be pointed out that when it comes to maritime delimitation, the maritime space an island can claim may be diminished depending on the circumstances (see, e.g., Anglo-French Arbitration 1977, Tunisia v Libya 1982, Black Sea Case 2009, Bangladesh/Myanmar 2012). Therefore, although in principle islands are not deprived of the rights bestowed on them by article 121 LOSC, they may not always be granted full effect in maritime boundary delimitations. However, islands cannot be denied their capacity to generate maritime zones and/or to be given decreased effect a priori;each case should be scrutinised according to its own unique terms. In any event, the Turkish argument that the Greek islands in the Aegean are located on the continental shelf of Turkey has been severely emaciated by the introduction of the EEZ concept and the prevalence of the “distance criterion” of maritime delimitation over the “geological” one. The distance criterion provides that the breadth of the maritime space afforded to a state should be calculated according to a fixed distance measured from the coast. The geological criterion, by contrast, would permit a state to claim the sea waters lying over the “natural prolongation” of its territory irrespective of the distance from its coastline. In the Nicaragua v Colombia case (2012), the ICJ put an end to the argument that one state’s islands cannot have their own continental shelf because they are located on another state’s continental shelf:

“The Court does not believe that any weight should be given to Nicaragua’s contention that the Colombian islands are located on “Nicaragua’s continental shelf”. It has repeatedly made clear that geological and geomorphological considerations are not relevant to the delimitation of overlapping entitlements within 200 nautical miles of the coasts of States.” (para 214).

The delimitation agreement

According to its well-established position that islands should not have the capacity to claim extended maritime zones when facing a bigger coastline, Turkey holds the view that Cyprus, being an island, has lesser effect in terms of maritime delimitation than the longer Turkish coastline, which is opposite the northern coast of Cyprus. Hence, as the agreement provides, the continental shelf delineation was carried out in accordance with equitable principles, resulting in a delimitation line closer to Cyprus at some points, which gives Turkey a more extensive maritime space than that allocated to the “TRNC”. Turkey was a fervent advocate of the equitable principles/relevant circumstances method during UNCLOS III, vehemently rejecting the median line/special circumstances method (UNCLOS III, Negotiating Group 7). The “equitable principles” method, which was elaborated in the 1969 Continental Shelf cases, stipulates that all relevant factors should be considered in order to reach an equitable result; however, the Court gave no further guidance as to how such an equitable result would be reached, rendering this method equivocal. Read the rest of this entry…

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Ending the Forever War: One Year After President Obama’s NDU Speech

Published on May 24, 2014        Author: 

Originally published on JustSecurity.org on May 23, 2014.

May 23, 2014 marked the one-year anniversary of President Obama’s important speech at the National Defense University (NDU) setting forth his proposed framework for post-9/11 counterterrorism strategy.  The President’s historic move in that speech was to call for the eventual repeal of the 2001 Authorization for the Use of Military Force (AUMF) and the end of what I had called at the Oxford Union the “Forever War.” The President cogently summarized why we should reject indefinite war in favor of an “exit strategy” to bring this protracted conflict with Al Qaeda, like all wars, to an end.  Last October, I argued that despite public skepticism, without fanfare, President Obama has made slow but steady progress toward achieving three key elements of his effort to end the Forever War: (1) disengaging from Afghanistan; (2) closing Guantanamo; and (3) disciplining drones.

The latest moment to assess progress in ending the Forever War came on May 21 this year, when as others have noted (see Goldsmith posts here and here; Lederman post here; Human Rights First video here), the Senate Foreign Relations Committee heard testimony from four current and past government lawyers regarding the authorization for use of military force after Iraq and Afghanistan (video): Mary McLeod, Principal Deputy Legal Adviser, U.S. Department of State; Stephen Preston, General Counsel, U.S. Department of Defense; myself (Harold Hongju Koh); and Michael B. Mukasey, Debevoise & Plimpton, former U.S. Attorney General. Putting aside some aggressive questioning, there was far more agreement among all participants than may come through from reading the statements or watching the hearing. I would take away five basic messages.

First, we should keep trying to end the Forever War. Our eventual goal should be to repeal the AUMF. Almost thirteen years after 9/11, it is increasingly problematic to rely on the 2001 AUMF to conduct all of America’s counterterrorism operations.  We should not use a broadly worded 13-year old AUMF text drafted for a prior situation to conduct perpetual armed conflict against a mutating group of terrorist networks.

Second, at the right moment, AUMF repeal would leave no legal gaps. If Al Qaeda can be defeated on the ground, there will come a time when the President will no longer need AUMF authority, because the remnants of Al Qaeda will be better represented by the idea of a “continuing and imminent threat” to which the United States could respond with self-defense authorities than an organized armed group engaged in ongoing conflict of a particular intensity and duration. Only the latter characterization warrants treating the members of Al Qaeda as continual belligerent combatants with whom we remain in daily war. The President would then not need the current breadth of AUMF authority to deal with that group of individuals, because they can be dealt with through other law, particularly as threats who can be addressed by the domestic and international law of self-defense, not as an organized armed group with whom we remain in daily struggle. Read the rest of this entry…

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“War, Protection and the Law”: Second Annual FCO Lecture on International Law

Published on May 23, 2014        Author: 

For the second year in a row now, the lawyers at the Foreign and Commonwealth Office have opened the doors of one of the FCO’s “fine rooms” to fellow members of the international legal community, judges, journalists, and other government officials to play host to a lecture by an individual with a profound impact on the development of international law.

Harold Hongju Koh, the former US State Department Legal Adviser, now Sterling Professor of International Law at Yale Law School, delivered a great lecture last year. This year, we were immensely pleased to welcome Peter Maurer, the President of the International Committee of the Red Cross to speak on the subject of “War, Protection, and the Law: the ICRC’s Approach to International Humanitarian Law” (see full text here). We thought there was no better person to comment on the challenges facing IHL on the centenary of the beginning of the Great War. As the Solicitor General noted in introducing President Maurer, it is thanks in no small part to the work of the ICRC, that respect for IHL has grown all over the world since the war that was supposed to “end all wars”.

Nevertheless, one hundred years on, the use of chemical warfare against soldiers in those Great War trenches has awful resonance with the chemical weapons attacks on civilians that we have seen so recently in Syria. President Maurer’s speech grappled with a number of such critical challenges for IHL, ranging from the ramifications of overlap between IHL and human rights obligations and gaps in the law on detention, to monitoring and influencing new technologies of warfare.

Our hope is that events such as our Annual Lecture will be a constructive means of fostering discussion and debate in the wider international legal community. This year we were determined to do more to increase the accessibility of our lecture to as many people as possible, particularly academics and law students, who might like a “virtual seat”! We are really pleased to present a video of this year’s lecture, and the lively question and answer session that followed. Please do leave us comments, or join the twitter discussion of the lecture at #lawofwar.

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China, the Philippines and Oil Rig HD-981: A New Flashpoint in the South China Sea Dispute

Published on May 23, 2014        Author: 

South_China_Sea_vector.svgTensions between China and Vietnam over the disputed Paracel islands erupted into anti-Chinese riots this week in Vietnam. The immediate cause is the positioning of a deep sea exploratory oil rig, the HD-9H1, 17 nautical miles from Triton Island, the south-western most feature of the Paracel group. It is also within 200 nautical miles of the Vietnamese coastline and therefore potentially within the EEZ of Vietnam. (The map at left shows China’s claims in the South China sea as well as each country’s 200-mile exclusive economic zone. Click to enlarge. Credit.)

The underlying dispute is of course whether Vietnam or China has sovereignty over these maritime features. If they do belong to China, any maritime zone they generate would be opposable to Vietnam and a maritime delimitation would be needed to sort out the respective boundaries. Is recourse to international dispute resolution – if not by consent, then initiated by Vietnam – likely in such a case?

The situation obviously has some parallels with the Philippines v China arbitration initiated under the UN Convention on the Law of the Sea (UNCLOS). Indeed, such Annexe VII arbitrations under Part 15 of UNCLOS are undergoing something of a renaissance at present. Other than the Philippines v China case, there is also obviously the pending arbitration in the case of the MV Arctic Sunrise (Netherlands v Russia) – both cases in which a major power has threatened nonappearance. More positively, hearings under the auspices of the Permanent Court of Arbitration recently concluded between Mauritius and United Kingdom concerning the dispute which followed the UK’s pronouncement of a marine protected area around the Chagos archipelago. The attraction of UNCLOS arbitration is that dispute resolution under the Convention is, in principle, compulsory; the downside is that it is riddled with complex exceptions. (As I have noted in a previous post.)

Could this be the next case to go to an Annexe VII Tribunal? The problems with relying on this mechanism to resolve maritime boundary disputes, or disputes concerning the underlying title to an island, are well known. Read the rest of this entry…

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The Court of Justice of EU’s Judgment on the “Right to be Forgotten”: An International Perspective

Published on May 20, 2014        Author: 

In its judgment published on 13 May in the case C-131/12 Google Spain AEPD and Mario Costeja Gonzalez, the Court of Justice of the European Union (CJEU), Grand Chamber, recognized a “right to be forgotten” with regard to Internet search engine results. Unfortunately, the judgment has important international implications that the Court did not sufficiently consider. In this post, I will put aside the issues of EU data protection law that the judgment raises, and focus instead on its implications for the rights of individuals to use the Internet as a global communications medium. It is important to note that application of the judgment extends beyond particular search engine providers to include any “provider of content which consists in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference” (paragraph 21), which could include Internet archives, social media, news crawler services, and many other types of online services.

The plaintiff in the case complained to the Spanish Data Protection Agency (DPA) against a Spanish newspaper and Google, stating that a Google search brought up a link to the newspaper containing irrelevant information about him, and requesting that the newspaper be required to remove or alter the pages and that Google be required to remove the data from the search results. The DPA found against Google, which then appealed to the Spanish Audiencia Nacional (National High Court). The Spanish court referred the case to the CJEU. On June 25, 2013, Advocate-General Jääskinen recommended that the Court find that it had jurisdiction over Google; that in its role as a search engine provider, Google was a data processor rather than a controller; and that the EU Data Protection Directive 95/46 does not contain a right to be forgotten that could entitle the plaintiff to have his data deleted from search engine results.

In its judgment, the Court differed in several important points from the Advocate-General’s opinion, and reached the following conclusions:

–Google’s branches in the EU are subject to the national data protection law of the EU member states where they are located, since they are “inextricably linked” to the activities of the Google headquarters in the US by virtue of Google Spain selling advertising space on the search engine provided by Google Inc, even if the actual processing is carried out in the US (paragraphs 42-60).

–Search engines are “data controllers” and as such are independently responsible for the personal data they retrieve, store, and display from websites (paragraphs 21-41).

–Under the Directive, there exists a limited right to have search engines delete material from search results (i.e., a “right to be forgotten”), regardless of whether the material indexed was posted legally or whether it is accurate (paragraphs 62-99). Read the rest of this entry…

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Crimea after Cyprus v. Turkey: Just Satisfaction for Unlawful Annexation?

Published on May 19, 2014        Author: 

On 13 March 2014 Ukraine lodged an inter-state application under Article 33 of the European Convention against the Russian Federation. Philip Leach has addressed in this forum the likely implications, suggesting that the occupation of Crimea will present a situation for the European Court similar to that in Ilaşcu v. Moldova and Russia.

The other decided case of the European Court that writers are speculating may be relevant to Ukraine is Cyprus v. Turkey. The Court’s just satisfaction judgment in Cyprus v. Turkey, adopted on 12 May 2014, is the first ever to award just satisfaction in an inter-State case under the Convention. Judge Pinto de Albuquerque and Judge Vučinić declared the judgment “the most important contribution to peace in Europe in the history of the European Court of Human Rights.”

What is important about Cyprus v. Turkey? And how, if at all, might Ukraine use the just satisfaction judgment to advance its own application against Russia?

Read the rest of this entry…

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