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The Innocence of Satirists: Will Caricatures of the Prophet Mohammad Change the ECHR Approach to Hate Speech?

Published on September 26, 2012        Author: 

Dr David Keane is Senior Lecturer in Law at Middlesex University.

The global reaction to the trailer for the film The Innocence of Muslims has prompted the banning of the video-sharing website Youtube in three States, Afghanistan, Bangladesh and Pakistan, with Council of Europe member Russia mooting such a move. Similarly the publication of the Charlie Hebdo cartoons of the Prophet Mohammad in France, and the resulting international protests, appear to reignite questions of religious defamation and freedom of expression generated by Jyllands-Posten in 2006. To a certain extent the arguments appear unchanged, but there are elements to these recent controversies worth exploring.

Charlie Hebdo has already been in the French courts, in 2007, but was acquitted, while the Danish Public Prosecutor decided not to pursue criminal proceedings against Jyllands-Posten. Yet the debate this time around seems less strident in terms of freedom of expression. The BBC points to a somewhat divided French press, albeit one that emphasises freedom of expression within the parameters of the law, with one paper asking whether these are “some cartoons too many”. This is significant given that newspapers of all political colours are the frontline on freedom of expression. Guy Birenbaum on the Huffington Post (only available in French) writes: “Come on Charlie, just between ourselves, you don’t have the feeling that this is old hat? Already seen, already read? Where is the subversion, the insolence, and most of all, the humour?” He concludes that mocking Islam has become something of a national sport in France and as a result has lost its subversive value. In this atmosphere, a prosecution appears a little more possible.

Such a prosecution would almost certainly be challenged before the European Court of Human Rights. Article 10 of the European Convention reads:  “1. Everyone has the right to freedom of expression… without interference by public authority … 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society… for the protection of the reputation or rights of others (…)”

In order to uphold the cartoonists’ rights under Article 10(1), the Court would have to go against its past jurisprudence and rule the interference unnecessary under Article 10(2). That would mark a new departure in terms of the European approach to hate speech, which has, perhaps understandably, been marked by the World War II experience and consistently upheld convictions for speech which attacks racial, ethnic or religious groups, or denies wartime atrocities.

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Nada v. Switzerland: The Continuing Problem of Attribution of Conduct Taken Pursuant to Security Council Resolutions.

Published on September 25, 2012        Author: 

Dr Arman Sarvarian, Lecturer in Law at the University of Surrey specialising in public international law particularly ethical standards for counsel appearing before international courts and tribunals.

Editors’ Note: This post was originally a comment on the post by Marko but we have decided to move it up

One of the many interesting issues raised by the recent judgment of the European Court of Human Rights in Nada v. Switzerland is attribution of responsibility (point 2 in Marko’s earlier post on this decision). I would like to offer a few tentative thoughts on the handling of attribution of responsibility by the Court. In my view, the judgment appears to have continued a muddled and inconsistent line of cases dealing with the attribution to Member States and/or international organisations concerning conduct pursuant to UN Security Council resolutions or other joint operations under the aegis of an international organisation such as NATO or the EU (e.g. – Bosphorus v. Ireland, Behrami and Saramati v. France and others, Beric v. Bosnia and Herzegovina, Al-Jedda v. United Kingdom, Al-Skeini v. United Kingdom, Bankovic v. Belgium and others).  Of course, the rules of attribution for international organisations remain nebulous and a delicate work in progress but the Court’s handling could be improved. I should emphasise that I am working on a draft conference paper on the potential consequences of EU accession to the ECHR for the law of international responsibility focusing on Common Foreign and Security Policy operations pursuant to UN Security Council resolutions, so my comments here are jejune and tentative.

The respondent argued that the application was inadmissible ratione personae and ratione materiae because the impugned measures had been based upon Security Council Resolutions 1267 (1999) et seq. which, per Articles 25 and 103 of the UN Charter, were binding and prevailed over any international agreement. This argument, and even more so that of France as intervener, used both ‘hierarchy of norms’ and ‘attribution’ language. On the one hand, obligations emanating from Security Council resolutions displace obligations arising under the Convention by virtue of Articles 25(2) and 103 of the Charter (cf. Lockerbie). On this approach, there could have been no infringement of Convention rights because those rights were displaced with respect to this applicant. On the other hand, the same obligations arising out of the resolutions rendered the alleged infringement of the applicant’s Convention rights attributable to the UN and thus, per the ‘Monetary Gold principle’, inadmissible ratione personae before the Court. This was the outcome of the much-criticised Behrami and Saramati decision.

The Court’s analysis (at paras 117-123) appears to skirt the problem of attribution. Read the rest of this entry…

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ICC Assembly of States Parties Urged to Decide on Status of Palestine

Published on September 24, 2012        Author: 

In April of this year, the Prosecutor of the International Criminal Court indicated, in an official statement, that he was not competent to decide whether Palestine is a State such that it can accept the jurisdiction of the ICC under Article 12(3) of the ICC Statute. As a result, the ICC Prosecutor took the view that he could not take any action as a result of the declaration made by the Palestinian National Authority in January 2009, accepting the jurisdiction of the ICC over crimes committed on the territory of Palestine. In that statement, the Prosecutor decided that:

“competence  for  determining  the  term  “State”  within  the meaning of article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt,  will  defer  to  the  guidance  of  General Assembly. The  Assembly  of States Parties of the Rome Statute could also in due course decide to address the matter in accordance with article 112(2)(g) of the Statute.”

In an earlier post, I provided analysis of the Prosecutor’s statement and was critical of the Prosecutor’s view that it is the UN Secretary General that has initial competence with regard to all questions of Statehood under Art. 12 of the Rome Statute.

A group of eminent international law scholars have now written to the President of the Assembly of States Parties to the Rome Statute to urge her to place the question of the Statehood of Palestine, for the purposes of Art. 12(3) of the Rome Statute, on the agenda of the next meeting of the ASP. That meeting will be held in November this year. The letter is as follows:

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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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