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Questions of International Law

Published on May 15, 2014        Author: 

We are happy to welcome a new online resource for the discussion of international law – Questions of International Law (QID). Here is how its editors describe the project:

Founded by a group of Italian scholars, QIL will be a new open-access online platform for international law scholarship, aiming to cross the boundaries between a traditional journal and a scholarly blog. The idea is to address a number of specific questions (hence the name) from at least two different, and generally opposing perspectives on a more or less monthly basis. QIL is divided into two sections. The first, “Zoom-in”, will focus on more specific legal issues, which will normally, but not necessarily, be connected with recent judicial and diplomatic practice. The second section, entitled “Zoom-out”, is designed to air wider debates and present symposia on theoretical or other major issues of international law. QIL will be primarily in English, but is open to contributions in French and Italian.

QIL intends to contribute to debate on issues of international law by opening its platform to comments and proposals from the community of international legal scholars at large.

The managing editors

Maurizio Arcari, Paolo Palchetti, Antonello Tancredi

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The Successes and Challenges for the European Court, Seen from the Outside

Published on May 14, 2014        Author: 

Helfer photo croppedLaurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law and Co-director of the Center for International and Comparative Lawat Duke University.

Cross-posted on AJIL Unbound.

In this post I wish to address the successes and challenges for the European Court of Human Rights (ECtHR), as seen from the outside.  I will take this opportunity to draw upon my research on human rights systems outside of Europe to explain how these systems have responded to some of the same challenges now facing the Council of Europe and the ECtHR.  My main contention is that international human rights courts, wherever they are located, require sustained political and material support if they are to thrive and grow over time.

I will illustrate my points with examples from the Inter-American and African courts of human rights and from lesser-known courts of sub-regional legal systems in Africa—the Economic Community of West African States (ECOWAS), the East African Community (EAC) and the Southern African Development Community (SADC).  The judges of these courts often look to ECtHR case law for guidance.  They are also aware of the high level of political and material support for the Strasbourg supervisory system.  Just as these courts have drawn inspiration from the ECtHR, so too those who will shape the Court’s long-term future should consider both the achievements and the challenges that these regional and sub-regional systems have faced.  In describing these positive and negative developments, I will focus on three issues—the evolution of human rights jurisprudence, the politics of compliance with court judgments, and government resistance and backlash.

I will begin with jurisprudential trends.  The innovative doctrines and principles pioneered by judges in Strasbourg are alive and well in other human rights systems.  Interpretive tools such as the evolutionary nature of human rights, the presumption that rights must be practical and effective, the creative and strategic approach to remedies, and cross-fertilization of legal norms are commonplace in the case law of all regional and sub-regional courts.  For example, Inter-American judges have applied these doctrines in several types of cases, including the obligation to investigate, prosecute and punish the perpetrators of past human rights violations, the prohibition of amnesty for such violations, the rights of LGBT persons, and affirmative measures to combat violence against womenMtikila v. Tanzania, the first merits judgment of the African Court of Human and Peoples’ Rights decided in 2013, analyzes the decisions of the other two regional human rights courts and the U.N. Human Rights Committee to support its conclusion that a ban on independent candidates standing for election violates the African Charter.  Among the most striking examples of creative legal interpretation appear in the case law of the East African Court of Justice and the SADC Tribunal.  The judges of those courts have cited references to human rights, the rule of law and good governance in the principles and objectives clauses of treaties establishing the economic communities to justify expanding their jurisdiction to include human rights.

These capacious interpretations have broadened the scope and reach of international human rights law.  But they have also engendered significant compliance challenges.  All other things equal, the more expansive and far-reaching remedies a court requires, the greater the likelihood of delay or resistance in implementing its judgments—in terms of political will, capacity, and commitment of resources.  The Inter-American Court has by far the most ambitious approach to remedies, often specifying in exquisite detail the measures states must adopt.  Governments have responded by implementing the easier and less politically costly remedies, with the result that partial compliance with the Inter-American Court’s judgments is now commonplace. Read the rest of this entry…

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Announcing EJIL: Live!

Published on May 13, 2014        Author: 

The Editorial Board of the European Journal of International Law is delighted to announce the launch of the Journal’s official podcast, EJIL: Live! Regular episodes of EJIL: Live! will be released in both video and audio formats to coincide with the publication of each issue of the Journal, and will include a wide variety of news, reviews, and interviews with the authors of articles appearing in that issue.

The first video episode features an extended interview between the Editor-in-Chief of the Journal, Joseph Weiler, and Maria Aristodemou, whose article “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours” appears in issue 25:1. The first audio episode features a shorter, edited version of the same interview, as well as conversations with the Journal’s Book Review Editor, Isabel Feichtner, and the Editors of EJIL: Talk!, Dapo Akande and Marko Milanovic.

Episodes of EJIL: Live! can be accessed, in both audio and video formats, via the EJIL website at www.ejil.org and EJIL:Talk! at www.ejiltalk.org. EJIL: Live! is also available by subscribing to our EJIL: Live! channel on YouTube for videos and our EJIL: Live! account on SoundCloud to listen to our audio podcasts. Additional, special episodes will also be released from time to time to address a range of topical issues.

Stay tuned in with EJIL: Live!

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R.M.T. v. The UK: Expanding Article 11 of the ECHR Through Systemic Integration

Published on May 12, 2014        Author: 

Court building exterior - autumn Medium PortraitOn 8 April 2014, the ECtHR rendered a decision in the RMT v. the UK. The case represents an example of using systemic integration as a tool of judicial activism. In applying Article 31(3)(c) VCLT, the Court expanded rights under Article 11(1) ECHR through international instruments that were not binding on all parties to the Convention. This approach adds to the perplexity of the effects of the principle of systemic integration.

In the RMT case, the ECtHR responded to the novel question of whether secondary action—or the so-called sympathy strike that is performed by a trade union in support of the cause of another group of strikers involved in a dispute—comes within the scope of Article 11(1) of the Convention. The Court ruled in the affirmative by relying exclusively on international instruments that recognize secondary action as part of trade union freedom. Although the Court considered that a different outcome could have been reached if one read the wording of Article 11(1) on its own (para 76), it deemed that

the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with… any relevant rules of international law applicable in relations between the parties, and in particular the rules concerning the international protection of human rights.

Referring to Article 31(3)(c) VCLT, the Court utilized the International Labour Organization (ILO) Convention No. 87 and the European Social Charter (ESC) to conclude that secondary action formed part of Article 11(1) of the Convention. The Court viewed that such reception of international law was in line with the Demir and Baykara judgment, which read in the relevant part as follows:

[t]he Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values.

Against that background, the Court continued, Read the rest of this entry…

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Announcements: Workshop in Budapest–Imagining the Future; Workshop in Reykjavik

Published on May 10, 2014        Author: 

1. Imagining the Future: Conceptions of Risk and the Regulation of Uncertainty in International Law – Institute for Legal Studies, Centre for Social Sciences, Hungarian Academy of Sciences, Budapest, Hungary, 17 – 19 October, 2014. Increasingly, international legal arrangements imagine future worlds, or create space for experts to articulate how the future can be conceptualized and managed. With the increased specialization of international law, a series of functional regimes and sub-regimes has emerged, each with their own imageries, vocabularies, expert-knowledge and rules to translate our hopes and fears for the future into action in the present. At issue in the development of these regimes are not just competing predictions of the future based on what we know about what has happened in the past and what we know is happening in the present. Rather, these regimes seek to deal with futures about which we know very little or nothing at all; futures that are inherently uncertain and even potentially catastrophic; futures for which we need to find ways to identify, conceptualise, manage and regulate risks the existence of which we can possibly only speculate about. In short, international law is increasingly becoming the preserve of HG Wells’ ‘professors of foresight’. The central theme of this workshop is how the future is imagined, articulated and managed across functional fields in international law. The deadline for abstract proposals is 1 June 2014. More information on this project and contact details can be found here and here.

2. Call for Papers – The Changing Practices of International Law: Sovereignty, Law and Politics in a Globalising World, Reykjavik, 27-29 August 2014. This interdisciplinary workshop explores this paradox of international legalisation increasing the room for political manoeuvre in international relations by examining how the proliferation of legal regimes and its various mechanisms are utilized by sovereign states to bolster political positions and barter off responsibilities under international law. We invite papers that analyse how the increasing role of international law in international relations both changes the obligations of states but equally provides the backdrop for “creative legal thinking” and governmental strategies to instrumentalise legal discourse and/or design policies to circumvent or shift legal obligations otherwise owed. Read the full call for papers here.

 

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Sorry Sir, We’re All Non-State Actors Now: A Reply to Hill-Cawthorne and Akande on the Authority to Kill and Detain in NIAC

Published on May 9, 2014        Author: 

The recent High Court judgment in the case of Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB) has sparked a lively debate about the authority to detain individuals in the context of a non-international armed conflict (NIAC). In response to a post by Kubo Mačák offering a critical perspective on Mohammed, Lawrence Hill-Cawthorne and Dapo Akande have lent their support to the judgment in arguing that no legal basis for lethal targeting and detention exists in IHL.

Essentially, Lawrence and Dapo advocate an understanding of IHL which conceives it as a purely regulatory framework in the sense that its sole purpose is to impose constraints on how States and non-State actors conduct hostilities, without recognising or conferring any rights on them to engage in such hostilities in the first place. On this view, killing and detention is permissible in armed conflict not because it is authorized by the rules of IHL, but because, and only in so far as, it is not prohibited by other rules of international law. In this post, I intend to demonstrate why this ‘Lotus approach’ to IHL is not compelling.

Read the rest of this entry…

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‘National Minority’ Status for the Cornish – What Took So Long?

Published on May 8, 2014        Author: 

Cornish_National_TartanMedia reports of the UK government’s recent decision to grant ‘national minority’ status to the Cornish minority have questioned why such status is necessary and how Cornwall differs from other regions of the UK. The Cornish are one of the constituent peoples of the British Isles, similarly to the Welsh and Scottish.  (The Cornish national tartan is pictured left, credit.) However, unlike other Celtic minorities in the UK, the Cornish were not officially recognised as a ‘national minority’, despite attempts to be recognised under the Council of Europe’s Framework Convention for the Protection of National Minorities (FCNM) since 1999 (Opinion on the United Kingdom ACFC/INF/OP/I(2002)006 para 16). In addition to a distinct language, which has been traced back to the Ninth Century, the Cornish also have a unique culture, including folklore and traditional dress, which distinguishes them from the rest of England. It is, thus, not Cornwall that has been granted ‘national minority’ status, but those inhabitants of Cornwall whose culture differs from the rest of the UK on the basis of their association with the Cornish minority. Rather than asking why the Cornish minority requires ‘national minority’ status, the more interesting question is why they weren’t recognised in the first place.

It has long been recognised in international law that ‘the existence of communities is a question of fact; it is not a question of law’ (Greco-Bulgarian Communities Case PCIJ Series B No 17 Advisory Opinion of July 31 1930, 22). Nonetheless, the recent recognition by the UK government of the ‘national minority’ status of the Cornish is a step forward if the identity of this minority group is to be preserved.  Even though States are not permitted to deny the existence of a minority to avoid international obligations, in practice such minorities must be recognised by States if their claims to the protection offered by minority rights standards are to be realised.

No definition of a minority has been agreed under international law; however, the term ‘national minority’ has a traditional usage which is linked to the League of Nations minority protection regime in the inter-war period. ‘National minorities’ have, therefore, been understood to comprise traditional or autochthonous minorities, who have traditionally inhabited a specific area, have been present in the State since the State’s borders were formed and have an identity which differs from the majority population in terms of culture, language and/or religion. A number of States have adopted the traditional, restrictive, interpretation of the term ‘national minority’ to define the scope of application of the FCNM. On the basis of their historic connection to Cornwall and distinct identity which differentiates them from the rest of the English population, the Cornish minority would clearly satisfy the traditional understanding of the term ‘national minority’.

The UK was able to avoid recognising the Cornish minority under the FCNM as a result of the failure of States to agree a definition of the scope of application of the instrument at the time of drafting. States are granted a margin of appreciation to interpret the scope of the term ‘national minority’ provided that the definition adopted satisfies the good faith requirement (article 2 FCNM).  Nonetheless, the Advisory Committee to the FCNM (AC-FCNM) has consistently stressed that  ‘the implementation of the Framework Convention should not be a source of arbitrary or unjustified distinctions’ (‘Opinion on the United Kingdom’ para 12) and has encouraged States parties to adopt a wide interpretation of the FCNM’s scope of application. Read the rest of this entry…

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Does IHL Provide a Legal Basis for Detention in Non-International Armed Conflicts?

Published on May 7, 2014        Author: 

In their excellent posts on Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB), both Kubo Mačák and Marko recognise the importance and hugely impressive analysis of Mr Justice Leggatt’s judgment. We will not reiterate the coverage of the judgment. Rather, we wish to focus on one part of it, that is, the question of whether international humanitarian law (IHL) provides a legal basis for detention in non-international armed conflicts (NIACs). Whilst Kubo also focuses on this issue in his post, we will take the opposite view to him, and thus will argue that Mr Justice Leggatt correctly concluded that IHL does not contain a legal basis to detain in NIACs. To be clear, our argument is not that detention in NIACs is necessarily unlawful. The argument is simply that authorization to detain in a NIAC cannot be found in IHL, but must rest elsewhere, principally in domestic law (either of the state that detains or of the state on whose territory the detention occurs). Exceptionally, the authorization to detain may arise out of other branches of international law, in particular, it may be contained in United Nations Security Council resolutions authorizing the use of force.

It is worth spending a few moments considering why we are even asking the question whether IHL contains a legal basis for detention in NIACs. In the particular context of the Sedar Mohammed case – and other detention in armed conflict cases brought under the European human rights system – the question is relevant in considering whether Art 5 ECHR might be regarded as inapplicable in NIACs by virtue of the argument that more specific rules of IHL apply to regulate those detentions. More generally, international human rights law (IHRL) requires that any deprivation of liberty be both lawful and non-arbitrary and in the context of NIACs, it is natural to ask first whether the legal basis might be found in IHL, as it can for international armed conflicts (Arts 27(4), 42-3 and 78 GCIV; Art 21 GCIII).

In the Serdar Mohammed case, Mr Justice Leggatt provided a number of reasons for rejecting the MoD’s contention that IHL provides a sufficient legal basis for detention in the context of NIACs. We will address the key ones here. First, he considered that such a legal basis would have been made explicit in the relevant treaty provisions (common Article 3 and Additional Protocol II) had that been intended. This is a reasonable point – coercive powers should not too readily be read into applicable treaty rules without clear evidence that this is the collective intentions of the states parties. Read the rest of this entry…

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Palestine, UN Non-Member Observer Status and ICC Jurisdiction

Published on May 6, 2014        Author: 

ICCOn 22 January 2009, the Palestinian Minister of Justice, on behalf of the Palestinian National Authority (PNA), lodged a declaration recognizing the jurisdiction of the International Criminal Court (ICC) (pictured left) ‘for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.’ On 3 April 2012, the ICC Office of the Prosecutor concluded that the preconditions to the exercise of jurisdictionwere not met, arguing that Palestine had only been granted ‘observer’, not ‘Non-member State’ status by General Assembly (GA). The Prosecutor considered that the Declaration ‘was not validly lodged’ (Report on Preliminary Examinations Activities 2013, para. 236). However, the Prosecutor also said that ‘allegations of crimes committed in Palestine’ could be considered ‘in the future’ if the ‘competent organs of United Nations … resolve the legal issue relevant to an assessment of article 12 …’. On 29 November 2012 the UN GA – by 138 votes to 9, with 41 abstentions – decided ‘to accord to Palestine non-member observer State status.’ (GA Res. 67/19 of 4 Dec. 2012, para. 2) (see previous EJIL:Talk! Posts here, here and here)

With this decision, the legal issue raised in the Prosecutor’s decision has been resolved. Palestine has been ‘upgraded’ from a mere ‘observer’ to a ‘Non-member State’. The formal declaration of statehood, which some previously considered a missing precondition to Palestine’s status as a State (Ronen, JICJ 8(2010), 26; Shany, JICJ 8 (2010), 337), has been produced by the GA. And this notwithstanding the possible lack of complete fulfilment of the Montevideo criteria (in particular the effective government criterion; cf. Shaw, JICJ 9 (2011), 307 ff.). The view that Palestine is now a State is not only the prevailing view among scholars (Zimmermann, JICJ 11(2013), 303; Ronen, JICJ 12 (2014) 8; contra still Kontorovich, JICJ 11 (2013), 979), but above all has been confirmed by treaty practice since the GA Resolution, i.e., the accession of Palestine to at least 15 international treaties (accepted by the respective depositaries). This means that Palestine, represented by its government, can now not only trigger ICC jurisdiction by way of a declaration under Article 12(3) of the ICC Statute but also directly accede to the ICC Statute (albeit without retroactive effect, cf. Articles 11(2), 126(2)). While there is no longer a need to overcome the lack of statehood by way of a functional interpretation of Article 12(3) (Shany, JICJ 8 (2010), 329; Pellet, JICJ 8(2010), 981, the new Article 12(3) power suffers from several limitations. Those limitations will be the focus of this post (leaving aside the subsequent ‘ordinary’ obstacles, especially gravity, admissibility and interests of justice, to turn an ICC situation into a formal investigation of a case). Here are the four problems with Article 12(3) that I see.

First, Article 12(3) is premised on a delegation-based theory of jurisdiction (Shany, JICJ 8(2010), 331-2), i.e., the ‘State’ within the meaning of the provision delegates a part of its jurisdiction to the ICC. Of course, this presupposes that the State possesses the jurisdiction it wants to delegate in the first place. Here Annex II of the 1995 Israeli-Palestinian Interim Agreement (‘Oslo II’) comes into play. According to its Article I, the Palestinian criminal jurisdiction is limited to ‘offenses committed by Palestinians and/or non-Israelis in the Territory’. ‘Territory’ refers to the West Bank and the Gaza Strip, in principle including East Jerusalem. Indeed, this is the Palestinian territory internationally recognized as a ‘single territorial unit’ (Art. IV Declaration of Principles 1993 [Oslo I]; Art  XI(1) Oslo II). Of course, on the one hand, Palestinian jurisdiction does not extend to the Area C in the West Bank (including Israeli settlements and military installations). On the other hand, while Israel does not, in principle, claim sovereignty over the West Bank and Gaza, it does so with regard to East Jerusalem. Thus, on the basis of Oslo, Palestinian criminal jurisdiction is severely limited both ratione personae and ratione loci.

To get around these limitations one may argue that Oslo, having been agreed between Israel and the PLO, as the representative of the Palestinian people (GA Res. 67/19, para. 2), can neither bind the PNA, which only came into existence with Oslo, nor, a fortiori, the government of the now formally recognized State of Palestine. Read the rest of this entry…

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No Legal Basis under IHL for Detention in Non-International Armed Conflicts? A Comment on Serdar Mohammed v. Ministry of Defence

Published on May 5, 2014        Author: 

On any account of the events that transpired one early April morning four years ago in northern Helmand in Afghanistan, the plight of Mr Serdar Mohammed is not to be envied. For reasons that are still in dispute, he was captured by the UK armed forces close to his home. Shot at, bitten by a military dog, and finally caught, he was brought into UK custody on suspicion of being an insurgent, perhaps even a Taliban commander. In the end, he was detained on British military bases for over 100 days before being handed over to the Afghan authorities.

Mr Mohammed brought a claim before the High Court of Justice of England and Wales for unlawful detention, seeking compensation from the UK government. In Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB), a judgment delivered last Friday, Mr Justice Leggatt decided that Mr Mohammed’s detention after the initial 96 hours violated Article 5 of the European Convention on Human Rights and that he was therefore entitled to compensation.

The judge openly says at the outset of the ruling that it is ‘a long judgment which discusses many issues and arguments’ (para. 2). Unlike Marko’s excellent post, which provides a more comprehensive overview of the judgment, my text takes a closer look at one of the key issues in the judgment only. This is the question of lawfulness of detention of persons in non-international armed conflicts under international humanitarian law (IHL), summarised by Marko in section 5 of his post.

It is well known that while the law of international armed conflict (IAC) provides an express legal basis for the detention of civilians in Articles 42 and 78 of the Fourth Geneva Convention, there is no counterpart in the treaty norms regulating non-international armed conflict (NIAC). The MOD argued that a power to detain is nonetheless implicit in Common Article 3 and Additional Protocol II. Although Mr Justice Leggatt acknowledged academic opinion in support of the MOD view, quoting extensively from texts written by Jelena Pejić and Jann Kleffner (see para. 240), he eventually came down against it on the basis of five very articulate reasons (paras. 241–251).

I will not revisit the academic debate on this topic (for which, in addition to the texts quoted in the judgment, see, e.g., here, here, or here), but rather subject the specific reasons advanced by Mr Justice Leggatt to somewhat closer scrutiny. It appears to me that even though the reasons are very well made, there are strong considerations not reflected in the judgment, which militate in favour of the opposite view.

Read the rest of this entry…

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