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Surface to Air Missiles to be Deployed at the Olympics: One More Step to Dystopia?

Published on May 11, 2012        Author: 

It was recently announced that the security measures for this year’s London Olympics will include the deployment of surface to air missiles in the vicinity of the various Olympic venues. Oddly, there has been very little discussion of the implications that these security measures might have for civil liberties or human rights. Unlike the games themselves, these legal issues are important in the wider scheme of things.

Call me cynical, or at least bitter and twisted, if you like.   I simply have never seen the point of the Olympic Games, unless one sees it as a continuation of politics through sport (which we now have to assume includes synchronised swimming, (see this YouTube clip), or as a nice little revenue stream for construction companies, fund-raisers, and those successful in their chosen sport, or as a laboratory for the development of new undetectable drugs.  With few exceptions, for instance Bannister’s achievement in breaking the four-minute mile, who remembers a world-record-breaking performance once it has itself been broken?  This is an investment in ephemera, and the substitution of chauvinistic public emotion for reason and decorum.

So I, for one, am dreading the descent of the Olympics on London later this summer.  I shall not be waving flags or cheering the athletes on, and that is not simply because there is no Scottish team.  It is bad enough that I cannot look out my office window without seeing the “count-down to the games” revolving around the top of what used to be called the Post Office Tower.  It is a constant reminder of dread.  A dread which has been increased by the press reports of the enhanced security measures currently being proposed—in particular, the deployment of surface–to–air missiles which some reports claim can down a 747 (see here and here).

Perky army types in uniform have stressed that any decision to use missiles against a threat from the air will be taken not by them on the ground, but rather at the highest levels of government.  Security analysts are, of course, claiming that the aim of these draconian measures is to reassure the public and deter potential air attacks.

Oh really?  Even if we assume that the current crop of senior UK politicians might be able to make a sensible decision under extreme pressure, I am not at all reassured by the thought that they might entertain the possibility of shooting down planes over central London.  And all the publicity that has been given to these extreme security measures might simply give rise to the new unofficial Olympic sport of outwitting security in a spectacular manner.  And it too will be televised.  Rather than being a deterrent, this might be seen as a challenge—and if an aerial threat were to be posed by, say, a drone, or those intent on a suicide attack, how could these measures deter in the first place?  Leaving unmanned aircraft to one side, the question that I have not yet seen discussed is the threat that these measures pose to civil liberties and human rights.  Are these, once again, to be swept aside without comment by alleged considerations of “security”?  Is this, once again, politicians goading the public into mute acceptance and aquiescent complicity by ratcheting up a climate of fear?  Is this just one more step to dystopia?

I must admit that I am surprised that lawyers have been silent because we have been here before.  Read the rest of this entry…

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Goettingen Journal of International Law Essay Competition: “The Interplay of International and National Law”

Published on May 10, 2012        Author: 

The Goettingen Journal of International Law (GoJIL) has just announced the topic for its an annual International Law Essay Competition. This year’s topic is “The Interplay of International and National Law”. GoJIL is the first student-run journal in the field of International Law in Germany. Published, since 1999, the journal aims to foster debate among scholars of diverse fields in International Law and related disciplines. The backbone of GoJIL is formed by the Editorial Board, a group of enthusiastic students and scholars from various academic disciplines. The stated aim of the journal  is “to give young scholars the chance to gain practical experience and  make their own professional scientific publication with GoJIL.”

The call for papers for this year’s essay competition reads as follows:

In our current global political and legal system, international law does not only influence national law, but also depends on it. Can national law set borders for the content of international treaties or does it become more flexible as treaties force interaction with other judicial systems? Can it be used to settle conflicts between national powers? How are treaties, both bi-lateral and multi-lateral, implemented on the domestic level? What is the impact of UN Security Council Resolutions or Human Rights agreements on States’ law and politics? These are just a few of the numerous questions you could raise and address in your essay.

The deadline for your submission is 15 August 2012. The maxim word count is 3 000 words (without footnotes).

If you would like to write an article or are already working on the subject, send in your essay! The best article will be published in the Goettingen Journal of International Law – GoJIL Vol 4 No 3. If you have any questions, please write to info {at} gojil(.)eu or visit the journal’s website

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The Passions of International Law

Published on May 10, 2012        Author: 

A symposium convened by Gerry Simpson at Melbourne Law School in September. The flyer is available here.

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Review of Expert Determinations of the International Swaps and Derivatives Association by Domestic Courts

Published on May 2, 2012        Author: 

A central policy concern since the onset of the Greek debt crisis in 2010 has been whether sovereign debt restructurings trigger credit default swaps (CDS). CDS are insurance-like financial products whereby a protection seller agrees to pay the protection buyer in case of a credit event on a reference entity (in this case Greece) in return for a premium over a defined period of time. The legal framework for CDS transactions is largely standardized. More than 90 percent of CDS transactions are based on the ISDA Master Agreement. As a mechanism for creditors to hedge against the default of a debtor, CDS are financial instruments to redistribute risk (or, according to their defenders, to shift risk onto those entities willing and capable of better bearing such risks). Over the last two decades, CDS on sovereign debtors became increasingly common.

Greece’s debt restructuring in February/March 2012 was the first to be implemented under the umbrella of a large number of CDS (more than 2.5 billion Euros in net terms).  During the implementation phase of the Greek restructuring in March 2012, several interested market participants raised the question whether the Greek restructuring triggered an obligation for the sellers of CDS on Greece to pay. The Determinations Committee (DC) of the International Swaps and Derivatives Association (ISDA) for Europe, Middle East and Africa, the body established by ISDA and given decision-making power under the ISDA documentation to rule on credit events,  found that a restructuring credit event was triggered on March  9 2012.  The parties to CDS have agreed by contract that a credit event occurs only if the competent DC has said so.

As the Greek restructuring in February/March 2012 demonstrated, the consequences of such expert determinations by DCs can be momentous in financial terms not only for the parties to CDS transactions themselves, but also for the broader public and for taxpayers. A case in point is the Austrian bank KA Finanz, the bad bank split off from Kommunalkredit, the comparatively small Austrian lender to municipalities previously owned by Dexia that the Austrian government nationalized at the height of the global financial crisis. KA Finanz had taken over about 500 million Euros of CDS on Greece from Kommunalkredit. As a result of the payouts following the March 9 decision, the Austrian government had to inject another 1 billion Euros into the bank in order to stave off its collapse.

DCs recruit their members from among financial institutions and investment managers, which will often have positions on either side of CDS transactions. In view of their composition and the considerable practical importance of their decisions, concern has arisen that DC members may be tempted to “vote their own book” – i.e. to reach credit determinations in part based on whether the firm is on the buying or selling side of CDS for a particular reference entity.  For instance, two members of the Steering Committee of the Institute of International Finance  which negotiated the restructuring of Greek debt on behalf of private creditors of Greece, are voting members of the DC for Europe (BNP Paribas and Deutsche Bank). They were net sellers of CDS protection on Greece, meaning that both institutions had to pay out to protection buyers when the credit event occured. Given these concerns about independence of DCs and the right to a fair trial in civil matters under Article 6 of the European Convention, it is an open question whether competent domestic courts could in effect review decisions and potentially overturn decisions of DCs. Read the rest of this entry…

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Extraterritorial Civil Jurisdiction: Obstacles and Openings in Canada

Published on May 1, 2012        Author: 

Bruce Broomhall is a Professor at the Department of Law of the University of Quebec at Montreal, teaching mainly international and Canadian criminal law. He thanks François Larocque, Mark Arnold and others for their input.

On 18 April 2012, the Supreme Court of Canada issued a trio of decisions promising to have an important impact on how Canadian law responds to attempts at civil recovery for international law violations occurring abroad, or partly abroad.

The cases are based on issues of classic private international law, not human rights or public international law. Club Resorts Ltd. v. Van Breda dealt jointly with two cases (of plaintiffs Van Breda and Charron) asking whether an Ontario court had and should exercise jurisdiction over civil claims arising from Cuban sun vacations in which severe personal injury (Van Breda), death (Charron) and related damages were claimed. The importance of Van Breda lies in the test that the Supreme Court lays out for determining the existence of jurisdiction in a case with trans-boundary elements. The accompanying Éditions Écosociété Inc. v. Banro and Breedan v. Black are actions in defamation that examine primarily (and Van Breda also examines) the issue whether jurisdiction, once recognized, should in fact be exercised, or whether it should instead be declined on grounds of forum non conveniens. This posting looks at the former question.

Van Breda presents an assessment of the ‘real and substantial connection’ required for the exercise of civil jurisdiction under the exclusive competence over “Property and Civil Rights” that Canada’s Constitution Act 1867 (at s.92(13)) accords to the Provinces and their courts. As the Court points out, this test has been the source of confusion to litigants and judges alike. It is both a principle of constitutional law used to prevent ‘jurisdictional overreach’ by any given province (a question left aside in Van Breda), as well as a principle of private international law, typically for purposes of international jurisdictional coordination (the focus of the decision) (paras. 22ff.). [One might add that it is also the concept set out in the seminal Libman case for determining the scope of territorial jurisdiction for criminal law purposes.] The Court’s aim in reformulating the Ontario Court of Appeal’s decision in the instant case was to encourage predictability in jurisdictional determinations based on the test and so to restrict case-by-case variability. The Court identifies four connecting factors that raise a rebuttable presumption that a court has jurisdiction over a given case: that the defendant is (1) domiciled or resident in or (2) carries on business in the forum province, or (3) the tort was committed or (4) a contract connected with the dispute was made there (para. 90). The Court allows (at para. 91ff.) for courts to develop additional connecting factors in accordance with strict criteria. Nonetheless, where no listed or new presumptive connecting factors are present, “a court should not assume jurisdiction on the basis of the combined effect of a number of non-presumptive connecting factors” (para. 93).

  Read the rest of this entry…

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Judge Al-Khasawneh Resigns, Again

Published on April 27, 2012        Author: 

This time resigning as Prime Minister of Jordan, according to the Washington Post. Readers will recall our earlier reports here and here on Judge Al-Khasawneh’s (belated) resignation from the ICJ in order to take up the post of prime minister, in which he’s been only some six months. He thus unfortunately won’t be able to return from Jordan to the Peace Palace. Coincidentally, in some act of cosmic irony, the General Assembly and the Security Council are voting today in elections for Judge Al-Khasawneh’s replacement on the Court – What’s in Blue report here. Only two candidates are in the running:

The two nominees for the single position are Dalveer Bhandari (India) and Florentino P. Feliciano (Philippines). (In an 18 April note verbale, Lebanon announced that its candidate, Ghaleb Ghanem, had withdrawn from the race.) Bhandari (64), currently serves as a senior judge in the Supreme Court of India. Feliciano (84), served on the Supreme Court of the Philippines and is now a Member of the Permanent Court of Arbitration (one of the potential arbitrators appointed by member states). (Both candidates’ curricula vitae are included in a note by the Secretary-General of 11 April – S/2012/213.)

UPDATE: Dalveer Bhandari was elected to the ICJ today by the GA and the UNSC – ICJ press release here.

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Kiobel: Universal Civil Jurisdiction under international Law

Published on April 26, 2012        Author: 

 Barrie Sander has law degrees from Cambridge and Leiden, and from September 2012 will be a PhD candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.

In an earlier post, I considered the question of corporate liability under international law in light of the case of Kiobel v Royal Dutch Petroleum (“Kiobel”), which is currently before the US Supreme Court.  Kiobel, a case brought under the Alien Tort Statute (“ATS”), concerns claims that various Shell entities (“the respondents”) planned, conspired and facilitated extrajudicial executions, torture and crimes against humanity by Nigeria in the Niger Delta between 1992 and 1995.

It had been thought that the question of whether corporations may be sued under the ATS would be the central issue before the Supreme Court in Kiobel. However, during oral argument the Justices became preoccupied with the wider issue of the extraterritorial nature of the ATS. In particular, they focussed on the question  whether US federal courts may rely on the ATS to exercise jurisdiction over human rights abuses which have no connection to the US, i.e. abuses committed by non-US entities against non-US victims on non-US territory.  In short, is universal civil jurisdiction permissible under the ATS?  Such was the focus of the Justices on the extraterritorial reach of the ATS that on 5 March 2012, only one week after hearing oral arguments, the Supreme Court ordered briefing and re-argument on:

“[w]hether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

Prior to this order, almost all briefing on this issue had been submitted by the respondents and their supporters, who have argued that broad assertions of universal civil jurisdiction by US federal courts may violate international law. In this post I consider some of the counter-arguments that the petitioners and their supporters may seek to raise in response. I suggest that though reliance on the Lotus principle, which would require a rule prohibiting an exercise of jurisdiction (rather than one permitting jurisdiction) may initially seem attractive, that approach is likely to fail. The strongest point that may be put in support of universal civil jurisdiction is that the existence of universal criminal jurisdiction contemplates a degree of civil jurisdiction as well. Read the rest of this entry…

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The Application of Universal Jurisdiction in South African Law

Published on April 24, 2012        Author: 

Christopher Gevers is a Lecturer in the School of Law, University of KwaZulu-Natal, South Africa. He is author of the War and Law Blog.

One of the contentious issues that arises in debates about universal jurisdiction is whether international law allows for what has been called “universal jurisdiction in absentia”. The question is whether a State may initiate criminal proceedings, for international crimes, against persons who are not present within the territory of the prosecuting State? Usually, the initiation of the proceedings is followed by the issuance of an international arrest warrant or a request for extradition. In 2002, the judges of the International Court of Justice split on the question of universal jurisdiction in absentia in the Arrest Warrant Case. [See Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’, (2004) 2 Journal of International Criminal Justice 735]. In March, precisely ten years after the Arrest Warrant case, a South African Court heard a landmark case on the domestic prosecution of international crimes which raises the issue of whether domestic proceedings may be initiated under the principle of universal jurisdiction with regard to persons outside South Africa. The case was brought to court by the Southern Africa Litigation Centre (SALC) following unsuccessful attempts to persuade the South Africa’s National Prosecuting Authority (NPA) to investigate and prosecute, in South Africa, 17 Zimbabwean suspects for torture as a crime against humanity. The torture was allegedly committed in connection with a raid on opposition headquarters in Zimbabwe in March 2007.

Background

In June 2009, over a year after receiving a complaint from the SALC, the South African Police Service (SAPS) and South Africa’s National Prosecuting Authority (NPA) decided not to investigate the matter. The reasons given for the decision, included issues regarding the sufficiency of the evidence, ostensible problems in obtaining further evidence from Zimbabwe, concerns over whether South Africa’s authorities had jurisdiction in respect of the investigation, and the fear of undermining Zimbabwe’s sovereingty.

In December 2009, SALC launched a legal challenge asking the Court to set aside the decision not to open an investigation and to order that the matter be remitted to the authorities for them to reconsider the decision. Read the rest of this entry…

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The European Emissions Trading System and Extraterritorial Jurisdiction

Published on April 23, 2012        Author: 

Jacques Hartmann is Assistant Professor, Department of Law, University of Southern Denmark and Fellow at the European Inter-University Centre for Human Rights and Democratisation, Venice, Italy.

The history of clashes over extraterritorial jurisdiction between the United States and the European Union (and European States) is long. On several occasions, the EU and European States have objected to the enactment and enforcement of US legislation. Good examples are European objections made in connection with the US’ Helms-Burton Act (imposing sanctions on Cuba), the D’Amato Act (dealing with sanctions on Iran) and also the Alien Tort Claims Act. This tradition might however be about to reverse itself.  The EU is itself facing mounting criticism over its decision to include emissions from foreign aviation within the European Emissions Trading System (ETS). Several States and airlines have objected to the inclusion with in the European ETS of aircraft emissions over the high seas and over foreign territory. Some States objected to these additions to the ETS even before they came into force. The most dramatic expression of such opposition came with a Joint Declaration issued in September 2011 by 21 States (including the US, Japan, India, Russia and China). The signatories declared that the EU’s plan to include extraterritorial emissions within the ETS was “inconsistent with applicable international law.” The declaration called upon the International Civil Aviation Organization (ICAO) to continue its efforts to address emissions from aviation. In addition, China and Russia suggested unilateral retaliation, whereas the US declared that it would respond with “appropriate action” if the extension of the ETS scheme went ahead. On 24 October 2011 the US House of Representatives overwhelmingly voted in favour of legislation, which prohibits “an operator of a civil aircraft of the United States from participating in any emissions trading scheme unilateral ly established by the European Union.”Also China has reportedly banned its airlines from participating in the ETS without governmental approval. The latter measures are in line with established State practice, whereby objecting States adopt so-called ‘blocking laws’, prohibiting compliance with the disputed legislation (see e.g. EC Regulation 2271/96).

On 21 December 2011, the European Court of Justice (ECJ) handed down a long awaited judgement (C‑366/10) in a case brought by a group of leading US airlines and trade associations. The claimants argued that the inclusion within the ETS of aircraft emissions over the high seas and foreign territory violated the EU’s treaty obligations and amounted to an impermissible form of extraterritorial legislative jurisdiction. The ECJ found no violation of international law. Several States have however contested the Court’s findings and a trade war may be looming. The matter at issue raises several fundamental questions concerning jurisdiction and sovereignty. The present note reviews the Court’s reasoning, providing a commentary on a matter that is likely to preoccupy international lawyers for some time to come.

Read the rest of this entry…

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Symposium on ExtraTerritorial Jurisdiction

Published on April 20, 2012        Author: 

One of the topics that will be taught in any basic course on public international law is “Jurisdiction”. By this is meant the jurisdiction of States and as Rosalyn Higgins explains in her book Problems and Process: International Law and How We Use It, questions of State jurisdiction are questions relating to allocation of competence. The question is which State has the competence to regulate persons, property and events. Questions of jurisdiction will often arise, in the first place, in the relations between States and private persons, as those persons argue that this or that State ought not to apply its law or its judicial powers to the activities of that person. However, since jurisdiction is about the allocation of competence between States, jurisdictional disputes often, and almost inevitably, become inter-State disputes.

There were numerous inter-State disputes on jurisdiction from the 1970s till the end of the 20th century about the United States’ application of the effects doctrine to economic regulation (primarily competition or anti-trust law) and about US extraterritorial application of its sanctions laws (eg sanctions on the Soviet Union in the early 80s or on Cuba or Iran in the mid 90s). There appeared to be a lull on those types of disputes and accommodations seem to have been reached. However, the rise of international criminal law at the end of that century and the increased resort to universal jurisdiction has led to a different set of inter-State disputes about extraterritorial State jurisdiction. In this area, it is European States -the main complainants in disputes with the US – that have most often been the object of complaints of overreaching. Those complaints have been voiced (often very loudly) by African States, by Israel, by Latin American States, and also by the US. Recent developments suggest disputes over jurisdiction are not going away and are as prevalent as ever. In some contexts it is thought that the adoption of international law rules in an area of law would reduce the disputes about jurisdiction (since harmonization of substantive law means that whoever does regulate would apply the same rules anyway). But the debates surrounding the application of universal jurisdiction for international crimes shows that acceptance of common international law rules on matters of substance does not necessarily mean that there won’t be questions as to who gets to interpret, apply and enforce those roles.

Next week, EJIL:Talk! will be hosting a symposium highlighting recent developments with regard to extraterritorial jurisdiction. Contributions to the symposium will focus on recent cases in three different jurisdictions each of which raises questions about the proper scope of extraterritorial jurisdiction.

Read the rest of this entry…

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