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Trivia: Cases Where Judge Votes Against National State or Appointing Party

Published on September 20, 2012        Author: 

In international tribunals it is often the case that a judge will vote in favour of a State that appoints that particular judge or that a judge will vote in favour of their State of nationality where that State is involved in a case before the tribunal. Sometimes, the suggestion is made that these facts show that judges have some sort of bias in favour of their national State or in favour of the State or party that appointed them. This suggestion of bias might well be an overstatement given that, at least in the case of the ICJ, many times the national judge or ad hoc judge, though voting in favour of their own State or the State that apointed them, is also voting with the majority.

The case of Velkhiyev v. Russia, a decision of the European Court of Human Rights (from July 2011), is a very interesting one with regard to the question of how judges vote in cases involving their national State. In that case, the Court found by six votes to one that Russia had NOT violated Art. 3 of the European Convention on Human Rights (prohibition of torture, inhuman or degrading treatment or punishment) with regard to 6 of the applicants in the case. The sole dissent on that question was Judge Anatoly Kovler the Russian judge! He would have found that Russia had violated that provision. So in this case, the judge voted against his State of nationality when the majority would have found in favour of that State. I suspect that this is very rare indeed. So my question today is:

Are there any cases when a judge in an international tribunal has voted against his or her national State or against the party that appointed him or her but where the majority of the tribunal would have found in favour of that State?

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The German Constitutional Court and the Euro-Crisis: The Emperor‘s New Clothes?

Published on September 20, 2012        Author: 

 Daniel Thym is Professor of Public, European and International Law at the University of Konstanz

Domestic German debates about the euro-crisis have had an unreal character so far. In the face of an economic crisis with global repercussions, the German public has been fascinated by the role of the Constitutional Court whom they admire. A vast majority of Germans trust that the country’s highest justices will steer the euro-debate through troubled waters with legal arguments. This confidence in the ability of Germany’s top constitutionalists, including several public law professors, was always bound to lead to disappointment.

It is true that the German Constitutional Court cannot be held responsible for the excessive media hype (or indeed opinion polls) about its role. However, it has to shoulder some responsibility. In recent years, the Court’s Second Senate had nourished the expectation that its interpretation of the principle of democracy was a lodestar for rescue operations. The debate reminded me of the fairy tale ‘The Emperor‘s New Clothes’. Those who aspire to ever more prestigious garments as a sign of power and wisdom risk being found to be naked at the end of the day. This applies to the German judicial ‘sovereign’ in the same vein as to the entourage who longed to gain from the prestige of their glorious ruler.

The Court’s latest judgment on the European Stability Mechanism (ESM) (also discussed by Michael Waibel here) and related instruments is an excellent demonstration why the desire for the pomp and circumstance of imperial times, remains an illusion (at least in Germany). The lesson is evident: the time has come to recalibrate the (legal) debate on euro rescue operations in Germany and beyond. Read the rest of this entry…

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Breaking News from 1932: Pirate Facilitators Must Be Physically Present on the High Seas

Published on September 19, 2012        Author: 

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project outside Denver, Colorado (though all of his views are his own). He has experience in United States piracy trials and just got on Twitter.

In the two years since the United States Justice Department began prosecuting Somalis for their alleged roles as pirate hostage negotiators, a debate has emerged as to whether UNCLOS requires facilitators of piracy to be physically present on the high seas in order to have committed piracy jure gentium and thus be subject to universal jurisdiction.

Highly reputable scholars and jurists have come out on different sides of this debate, due in large part to a lack of context surrounding UNCLOS art. 101, which provides the definition of piracy. Professor Douglas Guilfoyle takes the more expansive view that facilitation can take place within the jurisdiction of a state because UNCLOS art. 101(c), the section concerning facilitation, does not contain an explicit high seas limitation, as does art. 101(a)(1), which deals with the direct commission of piracy.

Advancing a narrower view, which I myself shared until recently, Professor Eugene Kontorovich argues that either an ex ante agreement to facilitate piracy ex post or concurrent facilitation while on the high seas is enough to commit piracy under the law of nations.

To an extent, this academic debate played out in practice when Judge Ellen Huevelle of the United States District Court for the District of Columbia held that a lack of high seas conduct kept an alleged pirate hostage negotiator outside the reach of universal jurisdiction. Although she was not presented with the question of whether an ex ante argument to facilitate subjected a facilitator to common jurisdiction, Judge Huevelle appears to side with the narrower conception of universal jurisdiction over pirate facilitators.

Because of the absence of historical insight into the bounds of universal jurisdiction over facilitators of piracy, most commentary to date has tended towards policy-heavy speculation based primarily on the text of UNCLOS itself. It appears, however, that the Harvard’s 1932 Draft Convention on Piracy has provided some much needed context for the debate.

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Who Can Apply to Add Sites Situated in Disputed territory to the World Heritage List?

Published on September 17, 2012        Author: 

Dr Shlomit Wallerstein is a CUF Lecturer in Law at the University of Oxford and Fellow of St Peter’s College, Oxford.

Recently (on 29 June 2012), the United Nations Educational, Scientific and Cultural Organization (UNESCO) accepted the Palestinian application  for the recognition of the Church of Nativity and the Pilgrimage Route as a world heritage site and included it in the World Heritage List. At the same time, it also added it to the list of ‘World Heritage Sites in Danger’. The site is described as located in Bethlehem. What is less known is that part of the pilgrimage route recognised as part of the site goes through East Jerusalem, which is currently under Israeli control. Israel opposed the recognition both with regards to the Church of Nativity, which is located in Bethlehem, and with regards to the pilgrimage route, which passes in part in an area under Israeli control and over which Israel claims sovereignty (a claim rejected by many in the international community). Leaving aside questions about the legitimacy of the recognition of Palestine as a state by UNESCO, the recognition of this site raises interesting questions about the relationship between the location of the site and the state that is applying tor recognition of the site as a world heritage site.

According to Art. 3 of the Convention Concerning the Protection of the World Cultural and Natural Heritage (hereafter: the Convention) it is the responsibility of each state to identify and delineate the different properties situated on its territory that should be recognised as either cultural or natural world heritage. Each State Party should then submit a tentative list of all these sites to UNESCO in accordance with Art. 11(1). UNESCO will only consider sites included in these lists.

But what happens where a site is found on a disputed territory? These cases create two potential scenarios. The first is that the state that claims sovereignty over the territory and which has effective control over that territory would apply to add the site on the World Heritage List. Assuming for the sake of this argument that Palestine is a state, its application concerning the Church of Nativity is a situation of this type as the site is found in Bethlehem, which is under the control of the Palestinians. The second scenario involves applications made by any state who has a claim on the territory on which the site is found but which does not have effective control over it. The Palestinian application to include the pilgrimage route, which is found (in part) in East Jerusalem (assuming for these purposes that this is a disputed territory), is an example of this second type scenario. Read the rest of this entry…

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Trivia: Ad Hoc Judges in Agreement

Published on September 16, 2012        Author: 

Many international tribunals allow for States to appoint ad hoc judges in cases involving that State and where no national of the State is a judge on the Court. It is often said that these judges (and judges of the nationlity of parties)  vote in line with the State that has appointed them (or whose nationality they hold). This seems to be true in the majority of cases. However, it is worth nothing that (i) it is not true in all cases and (ii) in most cases the ad hoc judge votes together with the majority so it is perhaps not remarkable that they vote in favour of the appointing State.

However, this popular wisdom suggests that where there are two ad hoc judges appointed by opposing States in the case, the ad hoc judges will vote in opposite ways. This is probably true in the majority of cases, but it is not always true. This leads to my question:

In which cases before an international tribunal have ad hoc judges appointed by opposing States voted for the same result?

Obviously, I am including the International Court of Justice in the question but I would also include the International Tribunal for the Law of the Sea or any other tribunal in which opposing States can appoint ad hoc judges. I would also be prepared to accept as within the scope of my question cases in which an ad hoc judge appointed by one party voted for the same result as a judge of the nationality of the other party. Or even cases where judges that have the nationalities of opposing parties vote for the same result.

I realise that “voted for the same result” is a bit ambiguous. What I mean is that both ad hoc (or national) judges wanted the same outcome from the judgment. However, I don’t mean that both of them simply voted against the judgment because neither particularly liked it, though for different reasons. Also,  in cases where the tribunal’s dispositif may include several points, it is possible for ad hoc judges to agree on some of the minor points. What I really want to know is whether on core issues, the ad hoc judges have agreed.

I also have a follow up or bonus question:

Have ad hoc judges appointed by opposing States ever written a joint opinion with each other?

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European Court Decides Nada v. Switzerland

Published on September 14, 2012        Author: 

As announced, the Grand Chamber’s judgment in Nada v. Switzerland, no. 10593/08 is available here. I can’t blog about it more extensively as I’m in Valencia right now for the ESIL conference, but the gist of the judgment is as a follows:

1) The applicant wins, on relatively narrow grounds under Article 8, and more broadly under Article 13 of the Convention. When examining Article 8, the Court engages in its assessment of the relationship between the ECHR and state obligations under the UN Charter, specifically UNSC resolution, and the effect of the supremacy clause in Article 103 of the Charter.

2) In that regard, the Court quite correctly finds that while the applicant’s listing by the Sanctions Committee of the UNSC was attributable to the UN, the implementation of the sanctions by Switzerland was attributable to Swtizerland itself (para. 121). The Court then finds (para. 122) that:

The measures in issue were therefore taken in the exercise by Switzerland of its “jurisdiction” within the meaning of Article 1 of the Convention. The impugned acts and omissions are thus capable of engaging the respondent State’s responsibility under the Convention. It also follows that the Court has jurisdiction ratione personae to entertain the present application.

Note that the Court here skirts the non-obvious question of the ECHR’s extraterritorial application (a point that as far as I am aware was not argued by the respondent government). That the implementation of the travel ban imposed against the applicant and Switzerland’s decision to deny him access to Swiss territory in order to leave the 1.6 sq km Italian enclave of Campione were undoubtedly attributable to Switzerland does not ipso facto entail that the applicant had rights vis-a-vis Switzerland under the Convention; the former is an issue of attribution of conduct, the latter of the threshold criterion for the existence of a legal obligation. The Court does not explain under what theory exactly the applicant had rights against Switzerland even though he does not live in Switzerland proper, nor how its position is to be squared with its prior case law on the matter (cf. Bankovic in particular, Al-Skeini notwithstanding).

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Venezuela denounces American Convention on Human Rights

Published on September 12, 2012        Author: 

The Bolivarian Republic of Venezuela has given notice of its intention to withdraw in a year’s time from the leading regional human rights treaty in the Americas, with the Secretary-General of the Organization of American States (OAS) having confirmed receipt of the notice of denunciation here: http://www.oas.org/en/media_center/press_release.asp?sCodigo=E-307/12. (Rumours back in July had suggested that Venezuela was considering withdrawal.) The Inter-American Commission on Human Rights has also issued a press release announcing that Venezuela is withdrawing from the American Convention on Human Rights, with the denunciation to take effect in September 2013. The IACHR press release can be found here: http://www.oas.org/en/iachr/media_center/PReleases/2012/117.asp

The American Convention on Human Rights (also known as the Pact of San José, Costa Rica) was adopted in 1969 and entered into force in 1978. It is a key regional human rights instrument for the protection of civil and political rights within the Western Hemisphere (with the Convention working alongside the 1948 American Declaration of the Rights and Duties of Man which is relied upon for OAS states that are not Convention parties). Venezuela has been a party to the Convention since ratification in 1977. Venezuela has also recognized the competence of the Inter-American Court of Human Rights since 1981, with Venezuela’s record before the court found here: http://www.corteidh.or.cr/pais.cfm?id_Pais=13.

A broken (but soon to be fixed?) link to the text of Venezuela’s denunciation can be found here:  http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights_sign.htm#Venezuela. The Venezuelan Ministry of Foreign Affairs has posted an interview with the Minister here (in Spanish): http://www.mre.gov.ve/index.php?option=com_content&view=category&layout=blog&id=2&Itemid=325

This is not the first denunciation for the American Convention on Human Rights, with Trinidad and Tobago having denunciated in 1998 due to a stated need to address delays in death penalty cases as a result of the time taken before international human rights bodies. Venezuela is the second state to withdraw from the American Convention on Human Rights, notably at a time when the inter-American human rights system is undertaking consultations with respect to reforms (see earlier post).

Readers will also be aware that Venezuela is not a newcomer to denunciations, having earlier this year denounced the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention), becoming the third Latin American state to denounce the ICSID Convention (after Bolivia in 2007 and Ecuador in 2009). Under the terms of the ICSID Convention, which provides for a six-month notice period, Venezuela’s denunciation came into effect in July.

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Karlsruhe gives green light for German ESM ratification

Published on September 12, 2012        Author: 

On September 12, 2012, the German Constitutional Court dismissed several constitutional complaints that sought an injunction to prevent German ratification of the European Stability Mechanism (ESM) – a central pillar of the Eurozone’s crisis response – and the Fiscal Treaty in the preliminary phase of the proceedings (extracts in English). A full ruling is expected in a few months. German ratification is required for the ESM treaty to enter into force, and critical in financial terms for the ESM’s credibility. The Court’s preliminary ruling means that the last hurdle for the ESM to enter into force has now been cleared. German ratification should follow in the next few weeks.

The court conditioned German ratification on two reservations to the ESM treaty: first, the German capital subscription needs to be limited to 190 billion Euros, as provided by the ESM Treaty (though the ESM’s capital may be increased beyond this ceiling pursuant to the procedure forseen in Article 10 of the ESM Treaty); and second, notwithstanding the confidentiality of the ESM’s deliberations, the German Parliament needs to be fully informed about operations of the ESM.  The Bundesverfassungsgericht seized its one chance to foreclose two possible, but unlikely interpretations of the ESM Treaty that would conflict with the German Constitution before interpretative authority passes to the Court of Justice under the ESM Treaty.

The Court’s insistence on two reservations is only a small  “but”. The Court took issue with two aspects that are marginal to the firepower and effectiveness of the ESM. The decision has virtually no effect on how the ESM will operate, and in particular on the capital that the ESM will have its disposal. It could lengthen the German ratification process by a few weeks, but the Court’s decision has removed substantial  unertainty about the Eurozone crisis response. Most other Eurozone member countries, including France and Spain, have already ratified the treaty. According to Article 48 of the ESM Treaty, the Treaty enters into force once countries representing 90 percent of capital subscriptions have ratified. The German share in of the total capital subscriptions of 700 billion Euros is just over 27 percent.

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Diplomatic Asylum for Julian Assange?

Published on September 11, 2012        Author: 

Professor Kai Ambos is Chair of Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the Georg-August-Universität Göttingen, Germany (since May 2003) and Judge at the Provincial Court (Landgericht) of Lower Saxony in Göttingen

Julian Assange’s medal-worthy self-staging as a militant for worldwide freedom of opinion has diverted attention away from the fact that the dispute over his extradition has nothing to do with Wikileaks, but rather with the enforcement of a European arrest warrant from November 2010. In this arrest warrant Assange is charged with rape, sexual harassment and unlawful coercion against two Swedish women in Sweden. According to the fundamental principle of mutual recognition as basis of the European arrest warrant, such a warrant is to be enforced by the executing member state (in this case Great Britain) without any further ado. The fact that Assange was however able to go through three  tiers of the English judicial system – with the proceedings leading up to the Supreme Court Decision of 30 May 2012 lasting one and a half years – can be explained, among other things, by the fact that the implementation of the European arrest warrant within the member states varies greatly.

Against this background – exhaustion of the local legal remedies – Assange’s escape into the Ecuadorian embassy on 19 June 2012 is to be seen as the continuation of his fight with political means. Hence, it is not very surprising that in the detailed explanation given by the Ecuadorian Ministry of Foreign Affairs (on 16 August 2012 ) for the granting of diplomatic asylum no mention is made of the actual accusations against Assange (see Comunicado No. 042). Instead, President Rafael Correa on 18 August 2012 in his state-owned TV program declared that the conduct Assange is accused of was not even punishable in Latin America (see Enlace Ciudadano No. 285). If this were to be true (which is fortunately not the case, see Art. 505 et seq. of Ecuador’s own Criminal Code), it would catapult the continent back to the unbridled machismo era. In any case, Ecuador granted Assange diplomatic asylum because it considered that there was an imminent threat of him being further deported to the United States where he would be politically persecuted and cruelly treated (see Comunicado No. 042).

However, Ecuador’s decision to grant diplomatic asylum to Julian Assange is flawed as a matter of law. Nonetheless, its embassy in London remains inviolable. The Ecuadorian argument does not stand up in the light of sober legal analysis as it misreads the fundamental structure of (European) law of extradition and it employs a legal concept – “diplomatic asylum” -that is not universally recognized in international law (see this EJIL:Talk! post ). An automatic further extradition to a third state is neither possible in general extradition law nor in the European arrest warrant system. Read the rest of this entry…

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Cases in Which the ICJ/PCIJ Were Evenly Split

Published on September 10, 2012        Author: 

When I supplied an answer to my earlier trivia question on the ICJ case in which every judge appended an individual opinion, I asked a further question

In which other judgment (or opinion) has the ICJ or PCIJ been evenly split?

Remy was really quick off the mark in supplying the correct answers and identified that there had been two ICJ cases and one PCIJ case where the Court had been evenly split and the case was decided by the President’s casting vote.  In the ICJ era,  the  Nuclear Weapons Advisory Opinion (which was the answer to my first question) was the second case. The first was the very controversial decision of the ICJ in the South West Africa Cases (Ethiopia & Liberia v. South Africa), which was decided by the casting vote of Sir Percy Spender. In those cases, the ICJ held that Ethiopia and Liberia “cannot be considered to have established any legal right or  interest appertaining to them in the subject-matter of the present claims” – which concerned the observance by South Africa of its obligations under the Mandate for South West Africa (now Namibia).

This ripple effects of this decision were felt was for many years and in many ways – both institutionally and even in term of normative development of the law. African States turned away from the Court, in the 1970s and 80s,  largely as a result of this decision. Perhaps the International Tribunal for the Law of the Sea might not have been created had developing countries not been so dissatisfied with the ICJ. Sir Percy Spender was not re-elected to the Court and no Australian has been elected since (expect that to change soon!). Perhaps more importantly, the Court, in the Barcelona Traction case included the famous obiter dictum on the notion of erga omnes obligations. That dictum that was somewhat out of place in that decision. Perhaps, the Court included it as a way of overruling the decision in the South West Africa cases, implicitly. Just this year we have seen the first actual application of the erga omnes doctrine by the court in the Habre case (on which this earlier post by Joanna Harrington). A decision which shows how far we have come from the South West Africa cases

As Remy, Tamas and Thomas point out, the PCIJ was also evenly split in the Lotus Case [UPDATE: I forgot to mention that Daniel Wisehart also got it right. Apologies to him]. In that case, we had the “dissenting” judgment of 6 judges in which they rejected the passive personality principle (or “principle of protection” as they called it). The Corfu Channel Case (the ICJ’s first contentious case) was also mentioned but I don’t think the Court was evenly split at any stage of that case.

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