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Refining Al-Skeini v UK: The ECtHR’s Grand Chamber hearing in Jaloud v Netherlands

Published on March 7, 2014        Author: 

The Grand Chamber at the ECtHR recently heard the case of Jaloud v the Netherlands. The case raises interesting issues concerning both extra-territorial jurisdiction and the obligations States owe to foreign nationals when deployed in foreign military operations. The facts are reasonably straightforward. The applicant’s son drove his car through a checkpoint without stopping in Iraq in 2004. A Dutch lieutenant at the checkpoint opened fire, hitting the applicant’s son who later died of his wounds. No weapons were found within the car. The Dutch forces there investigated the use of force and concluded that the use of force had been justified.

Jurisdiction

To begin with the jurisdictional issues, any hope that the question of extra-territorial jurisdiction had been settled in Al-Skeini v UK was dashed when both the Dutch and the UK, who acted as third party interveners, presented arguments that the applicant’s son was not within Dutch jurisdiction for the purposes of Article 1 ECHR when he was killed.

In principle there are 2 main forms of extra-territorial jurisdiction: spatial jurisdiction, which arises when the State exercises effective control over some foreign territory and personal jurisdiction, which arises where the State exercises authority and control over an individual. In Al-Skeini v UK, the ECtHR held that the UK was obliged to provide Convention-compliant investigations into the deaths of Iraqi civilians which occurred in the context of UK military operations while it occupied Iraq. The ECtHR applied a jurisdiction model somewhere between spatial jurisdiction and personal jurisdiction by holding that jurisdiction arises when a contracting State ‘exercises all or some of the public powers normally to be exercised [by the government of the State]’, (Al-Skeini at [135]) and then exercises authority and control over a person. In these circumstances instantaneous acts of UK soldiers, such as shootings, automatically created a jurisdictional link to the State:

 the United Kingdom […] assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government […] the United Kingdom assumed authority and responsibility for the maintenance of security in South-East Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom’ – (Al-Skeini at [149])

 The key difference between this model and standard personal jurisdiction is that where the State is exercising some public powers, the ECtHR treats the power to kill and the instantaneous act of killing as ‘authority and control’ over the individual (discussion of this here and here). Historically, the ECtHR had ruled that instantaneous acts, such as firing a missile from a plane, did not give rise to authority and control over the airstrike victims (see Bankovic and Ors v Italy and Ors).

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Timor-Leste v Australia: Provisional Observations

Published on March 6, 2014        Author: 

As has already been reported in this forum, earlier this week the International Court of Justice issued an order indicating provisional measures in Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia). The documents and data in question relate to ongoing arbitral proceedings between Timor-Leste and Australia. The documents were taken from the Canberra-based offices of a legal counsel to Timor-Leste by the Australian Secret Intelligence Organisation (ASIO) under a warrant issued by the Attorney-General of Australia.

On the whole, the order does not appear terribly exciting, but it does raise three issues worthy of some attention.

The first relates to the role of the Attorney-General. The Court, by twelve votes to four, ordered Australia to keep the documents it had seized under seal and not permit them to be used to the detriment of Timor-Leste while proceedings before the ICJ were under way. The Court indicated these measures despite the written undertakings of the Attorney as to the measures the Australian government was taking to safeguard the confidentiality of the documents. (To point out the obvious, this is the very same Attorney-General who authorised the seizure of the documents in the first place.)

While the majority of the ICJ deemed the Attorney-General’s undertakings insufficient, the Court had no difficulty in viewing them as binding under international law. The Court referred in this respect to a statement of the Agent of Australia that “the Attorney-General … [had] the actual and ostensible authority to bind Australia as a matter of both Australian and international law”. In other words, Australia conceded that, as a matter of international law, it was bound by the undertakings of its Attorney-General. Read the rest of this entry…

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Intervention with the Consent of a Deposed (but Legitimate) Government? Playing the Sierra Leone card.

Published on March 6, 2014        Author: 

The most dramatic moment at Monday’s Security Council meeting on Ukraine came when the Russian representative, Vitaly Churkin, produced a letter, purportedly from ousted Ukrainian President Victor Yanukovych, inviting Russian military intervention. This seemed to indicate a shift in Russia’s legal justification for its actions in Ukraine. The resolution adopted by the Russian legislature authorizing the use of force referred to the alleged threat to the personnel stationed at the existing Russian bases in Ukraine, while at the previous Security Council meeting on 1 March, Mr Churkin appealed primarily to a request from government of Crimea. It appears that Russia has now decided to rely much more heavily on Yanukovych’s consent. Not only did Mr Churkin emphasise it at the Security Council; President Putin, in his press conference on Tuesday, laid great stress on it:

“[W]e have a direct appeal from the incumbent and, as I said, legitimate President of Ukraine, Mr Yanukovych, asking us to use the Armed Forces to protect the lives, freedom and health of the citizens of Ukraine.”

This shift, which has already attracted some attention in the international law blogosphere, is an understandable move. For the reasons explained by Daniel Wisehart in his post on Tuesday, both self-defence and the invitation of the Crimean government are patently inadequate as legal justifications for Russia’s use of force. There is no evidence of an armed attack on the Russian bases in the Crimea, nor can it be seriously maintained that the consent of the government of a sub‑national unit within a State can legalise military intervention, especially when the intervention is opposed by the federal government.

In contrast, it is much easier for Russia to use Yanukovych’s consent to muddy the waters. For it has been argued, with at least some plausibility, that the international community has accepted the legality of foreign military intervention in support of a ‘legitimate’ national government, despite the fact that it has lost effective control of the state. The use of force by ECOWAS in Liberia in 1990, and in Sierra Leone in 1997, could be given as examples. In Liberia, the incumbent President, Samuel Doe, dispatched a letter to ECOWAS requesting assistance at a time when his forces controlled only a small part of the capital city, Monrovia. And in Sierra Leone, after being overthrown by a military coup, the democratically elected President Ahmad Tejan Kabbah had already fled the country (just as Yanukovych has done) before he requested ECOWAS assistance to restore him to power. Despite these facts, in both cases military action met with support rather than censure from the international community. Read the rest of this entry…

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Filed under: Government, Use of Force
 
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Appeal from the Ukrainian Association of International Law

Published on March 5, 2014        Author: 

The Ukrainian Association of International Law has issued an analysis of recent events in the Ukrainian. An English translation of this analysis and appeal is included below. I am told that the original can be found here. The Association argues that Russia’s decision to move military forces into Ukraine is not only a violation of the UN Charter and general international law, but also of the bilateral treaty permitting Russia to retain the Black Sea Fleet in Ukraine, and also of the security assurances given in the Budapest Memorandum of 1994 by Russia (and also by the US, the UK, France and China). Much of the analysis contained in the Appeal by the Association is undoubtedly correct.

The Association rejects Russian claims that it is acting to protect rights of the Russian population in Ukraine. However, it is surprising to read that “[the Association] would like to stress that no duly authorized national, foreign or international institution has declared any violation of human rights on the territory of Ukraine, or specifically in the Autonomous Republic of Crimea, which would have required the intervention of any subject of international law or the international community.” Is this to say that it would have been lawful for Russia to intervene had there been such a declaration of violation of human rights?

“An Appeal from the Ukrainian Association of International Law to the people of Ukraine, the Russian Federation and the fraternal people of the neighboring States with whom we share close family ties and historical connections, as well as the international community as a whole:

On 1 March 2014 at 17.21 (Kyiv time), the Council of the Federation of the Federal Assembly of the Russian Federation (the Council of the Federation) unanimously supported the appeal of the President of the Russian Federation, Mr. Vladimir Putin, on sending a “limited contingent of military troops” of the armed forces of the Russian Federation into the territory of Ukraine.

This decision was taken in breach of the United Nations Charter, Read the rest of this entry…

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The Crisis in Ukraine and the Prohibition of the Use of Force: A Legal Basis for Russia’s Intervention?

Published on March 4, 2014        Author: 

The European continent is currently witnessing the most severe security crises since the tragic events surrounding the dissolution of the Republic of Yugoslavia. The post will discuss the legal bases for Russia’s use of force on the Crimean peninsula. 

On 1 March 2013 the President of the Russian Federation submitted an appeal to the Council of the Russian Federation for authorization to use armed force ‘[i]n connection with the extraordinary situation that has developed in Ukraine and the threat to citizens of the Russian Federation, our compatriots, the personnel of the military contingent of the Russian Federation Armed Forces deployed on the territory of Ukraine (Autonomous Republic of Crimea)’. The same day the Council granted authorization to the Russian President to deploy forces in the Ukraine. I will discuss two possibilities that could be invoked to justify Russian deployment of force despite of the general prohibition to use force under Article 2 (4) of the Charter: (i) self defence and (ii) intervention by invitation. Read the rest of this entry…

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Timor Leste’s request for provisional measures: ICJ orders materials seized by Australia sealed until further notice

Published on March 4, 2014        Author: 

On 3 March 2014, the International Court of Justice handed down its order on the request by Timor Leste for the indication of provisional measures in its claim against Australia relating to the seizure and detention of certain documents and data (for earlier reporting of the proceedings: see here). As predicted, Timor Leste didn’t get the seized material back, but the decision of the Court did give it most of what it wanted.

The Court considered that Timor Leste had established jurisdiction prima facie on the basis of the declarations it and Australia had made under Article 36(2) of the Court’s Statute accepting the Court’s compulsory jurisdiction, and that at least some of the rights claimed by Timor Leste were plausible. A concomitant of the principle of the sovereign equality of States was equality between States when in the process of seeking peacefully to settle their disputes, which meant that States have a right of confidentiality and of non-interference in their communications with their legal advisers when engaging in arbitration proceedings or negotiations. The Court also considered that there was a link between the rights claimed and the measures sought by Timor Leste insofar as they sought to prevent interference by Australia with Timor Leste’s communications with its legal advisers.

The major issue before the Court was, however, whether there was a risk of irreparable prejudice to Timor Leste’s rights, and whether such a threat was urgent. Australia’s argument was that there was no such risk. At the commencement of proceedings the Australian Attorney-General had stated that there had been no inspection of the documents and data seized and that they would be held under seal until the beginning of the oral hearings on Timor Leste’s request for the indication of provisional measures. At the oral hearings themselves, the Australian Solicitor-General had assured the Court that the materials would remain under seal until it rendered its decision on the request. Further, a written undertaking of the Attorney-General was presented to the Court stating that until the close of the Court’s proceedings the materials would only be inspected for purposes of national security, and that there would be no communication of them or their contents for any purpose in connection with the exploitation of resources in the Timor Sea or related negotiations, or in connection with the case before the Court or the Timor Sea Treaty Arbitration. Read the rest of this entry…

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ICJ Opens Hearings in Croatia v. Serbia

Published on March 3, 2014        Author: 
http://pescanik.net/wp-content/uploads/2014/03/01.03.14-Danas.jpg

Cartoon by Corax, in the Danas newspaper.

Today the International Court of Justice opens a month of hearings in the pending case between Croatia and Serbia for state responsibility for genocide allegedly committed during the 1990s conflict. In the afternoon the Court will also be delivering its provisional measures order in Timor Leste v. Australia. The latter will at least to my mind be vastly more interesting than the former. Why? Because the outcome of the Croatia/Serbia case is a foregone conclusion, bearing in mind that the Court’s jurisdiction is limited solely to breaches of the Genocide Convention, and that it cannot rule on either party’s responsibility for any other wrongful acts, be it war crimes, crimes against humanity, or aggression.

In its 2007 Bosnian Genocide judgment the Court, relying on the findings of the ICTY, found that the ‘only’ instance of genocide in the otherwise far more brutal Bosnian conflict was Srebrenica, for which Serbia was not responsible, and did so by 13 votes to 2. It seems extremely unlikely that the Court will adopt a different methodological approach in the Croatian case, especially because nobody was even charged, let alone convicted, for genocide in Croatia by the ICTY. The (many) acts of ethnic cleansing committed by both sides in the Croatian conflict simply lack the requisite specific intent to physically or biologically destroy a protected group, and thus cannot reasonably be qualified as genocide. And without genocide, the Court is without jurisdiction.

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Announcements: Amsterdam Workshop; Symposium in Oslo; “Boat Refugees” & Migrants at Sea; Procedural Fairness in International Courts

Published on March 1, 2014        Author: 

1. The research project “Architecture of Postnational Rulemaking” at the University of Amsterdam has issued a call for papers for a workshop on “Transnational Standards in the Domestic Legal Order: Authority and Legitimacy”, to be held on 24 October 2014. The deadline for the submission of proposal of max. 500 words is 18 May 2014. The sponsoring organizations will cover the speakers’ travelling and accommodation expenses. More information is available here (pdf).

2. Call for Papers: The Legitimate Role(s) of Human Rights Courts in Environmental Disputes: The Center of Excellence PluriCourts at the University of Oslo, Faculty of Law, is organizing an international symposium on the legitimate role(s) of Human Rights courts and tribunal in adjudicating environmental disputes in Oslo, 8 and 9 September 2014. The list of experts invited to speak at the symposium includes: Dinah Shelton, Professor of Law, George Washington University; Dan Magraw, President emeritus, Center for International Environmental Law, John Hopkins School of Advanced International Studies; Alan Boyle, Professor of Law, University of Edinburgh; Judge Margarette May Macaulay, Inter-American Court of Human Rights; and Judge Hellen Keller, European Court of Human Rights.

PluriCourts invite for papers to be presented and discussed at the symposium. Deadline  for the submission of abstracts (500 words) is 1 May 2014. Read the Call for papers here. For further enquiries about the symposium, please contact Annette.hovdal {at} jus.uio(.)no.

3. Call for Papers: “Boat Refugees” and Migrants at Sea: A Comprehensive Approach – Integrating Maritime Security with Human Rights: Venue: Refugee Law Initiative, School of Advanced Study, London Dates: 23 and 24 June 2014 Organizers:Refugee Law Initiative and the Law Department of Queen Mary (with support from HRC and UACES). This 2-day conference aims to comprehensively address the contemporary phenomenon of ‘boat migration’ with a holistic approach. We will consider its multiple facets, combining knowledge from several disciplines and regions of the world, with a view to making a decisive contribution to our understanding of current trends, against the background of the fragmentary responses adopted and innumerable tragedies occurred thus far. Abstracts, not exceeding 300 words, should be sent by 20 March to both: Dr Violeta Moreno-Lax (v.moreno-lax {at} qmul.ac(.)uk) and Dr Efthymios Papastavridis (papastavridis {at} Academyofathens(.)org). See here for more details.

4. Call for Papers: Procedural Fairness in International Courts and Tribunals The Surrey International Law Centre of the School of Law of the University of Surrey with the support of the Institute of Advanced Studies, the McCoubrey Centre of the University of Hull and the British Institute of International and Comparative Law (‘BIICL’) will host a two-day workshop on the identification of core standards of procedural fairness before international courts and tribunals. A topical and timely subject for study, the question of procedural fairness entails the identification of fundamental principles inherent to the judicial and arbitral processes. The aim of this workshop is to bring academics and practitioners together to initiate ground-breaking research into this novel topic. This call is directed to academics at all career stages who wish to bring fresh perspectives to the workshop with established scholars and practitioners. Interested parties should submit an abstract of maximum 500 words by the 1st of April 2014 to the workshop website, where the full call for papers may also be accessed: http://ocs.som.surrey.ac.uk/index.php/SILC/SILC2014.

 
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Special Agreements Concluded by Armed Opposition Groups: Where is the Law?

Published on February 27, 2014        Author: 

Common Article 3 of the 1949 Geneva Conventions binds the parties to non-international armed conflicts (NIACs) without making any distinction between the obligations of States and those of armed opposition groups (AOGs). Additionally, it encourages the parties to expand their obligations by concluding special agreements in order to bring other provisions of the GCs into force. These agreements’ importance has been recognized here by the ICRC, when identifying them as valuable methods to improve respect of IHL. In a recent post in Opinio Juris, Rogier Bartels has mentioned some contemporary peace agreements which could potentially also be framed within that category. However, CA3 doesn’t really determine their legal nature. Are they regulated by international or domestic law? What kind of obligations do they create?

Unraveling these questions isn’t merely an intellectual exercise. Special agreements serve to strengthen public confidence in IHL as a useful, practical and relevant body of law. Indeed, they help achieve willingness and material conditions to augment AOGs’ compliance. Whatever approach one selects, it will inevitably have consequences on the way we think about IHL’s effectiveness at large.

This post will analyse three alternatives regarding the legal nature of special agreements: i) special agreements under domestic law; ii) special agreements under a sui generis regime; iii) special agreements under international law. We will argue that this last perspective provides a more accurate description of the current dynamics of international law and is more useful to engage with AOGs on IHL compliance issues.

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The ILC’s Clever Compromise on the Validity of Reservations to Treaties

This post, adapted from our introduction to the symposium on the International Law Commission’s Guide to Practice on Reservations to Treaties in the current issue of the EJIL, looks at one specific topic addressed by the ILC – the rules governing the validity of reservations and the consequences of invalidity. This is not only the most controversial and vexing of all of the issues addressed in the Guide, but also the one where the Guide makes it perhaps most important contribution. Here we not only have a meticulous analysis of a technical topic, but nothing short of an existential story of international law as a unified system as opposed to a set of fragmented sub-regimes. How so? When one reads Articles 19-22 VCLT, particularly in light of the ICJ’s Reservations to the Genocide Convention opinion, one cannot avoid the impression that the process of determining whether a reservation was invalid as being contrary to the object and purpose of a treaty was meant to be more or less inter-subjective: each state should determine for itself whether a given reservation was compatible with the treaty’s object and purpose, and if it was not it should make an objection to that effect.

But such an inter-subjective approach looks remarkably unappealing from the perspective of major multilateral normative treaties, particularly in the human rights context. The rights of individuals, so the reasoning among many human rights lawyers went (as exemplified most notably in Human Rights Committee’s General Comment No. 24), should not depend on the existence of objections, vel non, by third states, especially when reciprocity of state obligations has little place in the human rights context and when for a variety of reasons states routinely fail to object to reservations even when there manifestly are perfectly good reasons to do so. While objections to reservations would be probative, they could not be dispositive. It would indeed primarily be upon courts or treaty bodies to determine whether a reservation is compatible with the object and purpose of the human rights treaty, while the consequence of invalidity would normally not only be the nullity of the reservation, but also its severability, so that the reserving state would remain bound by the human rights treaty without the benefit of its reservation. Human rights protection would thus always be maximized.

Many governments were less than pleased with what they saw as a power-grab by human rights bodies and a usurpation of their sovereign prerogatives. The ILC, being the bastion of international law orthodoxy, was no more pleased, nor was Alain Pellet as its Special Rapporteur. How could international law survive as a coherent, unified system if more of its branches followed the human rights example and asserted that because they were special they needed special rules, rather than the outdated Vienna framework. If that was true for human rights, why would it not be true for trade, the environment, or whatever other topic people became strongly devoted to. Fragmentation beckoned, and it needed to be resisted.

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