BBC report here. Immediately below is a timely post by Roger O’Keefe on an alleged ‘threat’ by UK authorities to enter the Ecuadorian embassy in London. More commentary will follow – stay tuned.
Roger O’Keefe is Deputy Director, Lauterpacht Centre; University Senior Lecturer in Law, University of Cambridge and Fellow & College Lecturer in Law, Magdalene College, Cambridge.
Ecuador has alleged that the UK has ‘threatened’ to rely on the Diplomatic and Consular Premises Act 1987 (‘DCPA’) to enter the Ecuadorian embassy to arrest Julian Assange, who has taken refuge there in order to avoid his extradition to Sweden (see, e.g. a Guardian report here). In a letter said by Ecuador to have been delivered through a British embassy official in Quito, the UK government is purported to have stated:
You need to be aware that there is a legal base in the UK, the Diplomatic and Consular Premises Act 1987, that would allow us to take actions in order to arrest Mr Assange in the current premises of the embassy.
We need to reiterate that we consider the continued use of the diplomatic premises in this way incompatible with the Vienna convention and unsustainable and we have made clear the serious implications that this has for our diplomatic relations.
We only have Ecuador’s word for it that the UK government has made this ‘threat’, and we should be cautious in accepting this without corroboration. But let us assume for the sake of argument that the allegation is true.
The DCPA—‘[a]n Act to make provision as to what land is diplomatic or consular premises’, in part of the words of the long title—regulates, among other things, the UK government’s acceptance of or consent to the designation of land in the UK as diplomatic or consular premises. The relevant provision in this case is presumably section 1(3) of the Act, which provides in relevant part:
(a) a State ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post; or
(b) the Secretary of State withdraws his acceptance or consent in relation to land,
it thereupon ceases to be diplomatic or consular premises for the purposes of all enactments and rules of law.
The main enactment alluded to in section 1(3) is the Diplomatic Privileges Act 1964 (‘DPA’), which enacts into UK law certain provisions of the Vienna Convention on Diplomatic Relations 1961 (‘VCDR’), among them article 22(1), which codifies the rule that the premises of a diplomatic mission are inviolable. The inviolability of diplomatic premises means, among other things, that the authorities of the receiving state (here, the UK) may not enter the mission’s premises, except with the consent of the head of the mission. (This does not, contrary to popular misconception, make the embassy premises Ecuadorian territory. The premises remain UK territory, albeit UK territory that the UK authorities are not allowed by the DPA to enter without permission.) In short, the UK authorities may not enter the Ecuadorian embassy without the permission of the Ecuadorian ambassador—provided, that is, that the embassy premises remain diplomatic premises.
The suggestion would seem to be that the Ecuadorian embassy has ceased or will cease to be diplomatic premises within the meaning of section 1(3) DCPA and article 22(1) VCDR. There are two possible ways this could be argued to have happened or to happen.
Swiss Court Finds No Immunity for the Former Algerian Minister of Defence Accused of War Crimes: Another Brick in the Wall of the Fight Against Impunity
Gabriella Citroni is Senior Researcher in International Law and Lecturer in International Human Rights Law at the University of Milano-Bicocca. Although she is Senior Legal Adviser for TRIAL, a Switzerland based NGO that filed the criminal complaint in the case discussed below, she has not been involved in this case.
On 25 July 2012 the Swiss Federal Criminal Court issued a decision (which is available, in French, here) whereby it denied the existence of immunity ratione materiae for a former Algerian Minister of Defence accused of war crimes. This decision revives the ongoing debate on the sensitive issue of immunity of State officials from foreign criminal jurisdiction and opens up for new perspectives for the application of the principle of universal jurisdiction. It also deals with other relevant matters related to the struggle against impunity.
On 19 October 2011, TRIAL, a non-governmental organization active in the field of human rights headquartered in Switzerland filed a criminal complaint against Mr. Khaled Nezzar, accusing him of war crimes committed during the Algerian civil war (1992-2000). On 19 and 20 October 2011, two individuals of Algerian origin enjoying the status of refugees in Switzerland (one of whom acquired Swiss nationality), also filed criminal complaints against Mr. Nezzar, alleging that they were subjected to torture in 1993.
Mr. Khaled Nezzar, a former general, was Chief of the Algerian Army in 1988, later promoted to Chief of Staff and subsequently appointed as Minister of Defence. During the same period he also was a member of the “High Council of State” (Haut Comité d’Etat, hereinafter “HCE”), which was a collegial body established on 14 January 1992 to replace the President. The HCE functioned until January 1994 and during this period it was entrusted with “all the powers attributed by the Constitution to the President of the Republic”.
When the criminal complaints were filed, Mr. Nezzar was staying in a hotel in Switzland while in transit through that country. Read the rest of this entry…
In June, I looked at the longstanding sovereignty dispute over the Falklands Islands (Malvinas) on the occasion of the 30-year anniversary of the 1982 war. I revisit this topic today to examine the question of investor protection in areas where sovereignty is disputed, taking the Falklands (Malvinas) as an example. The promise of an oil boom in the South Atlantic has prompted several companies listed in London, including Falkland Oil and Gas, Borders and Southern Petroleum, Rockhopper, Desire Petroleum and Argos Resources, to survey the area. They obtained exploration licenses from the Falklands administration in 2011, which drew strong criticism from Argentina. Shareholders in these inherently risky ventures may wonder whether they have any legal protections should the sovereignty dispute intensify.
The sovereignty dispute adds an additional layer of uncertainty for the companies engaged in exploratory drilling and their shareholders, aside from the uncertainty on how much oil, if any, will ultimately be discovered. The listing prospectuses of the companies concerned all mention the pending sovereignty dispute as a risk factor, but likely underplayed its importance. For example, the Falkland Oil and Gas Prospectus contains the following disclaimer:
There may be other unforeseen matters such as disputes over borders. Investors will be aware that the Falkland Islands were, in 1982, the subject of hostilities between the United Kingdom and Argentina.
The Argentine Government has not relinquished all its claims in relation to the Falkland Islands. However, the position of the UK and Falkland Islands Governments is that the United Kingdom has no doubt about its sovereignty over the Falkland Islands, South Georgia and the South Sandwich Islands and the surrounding maritime areas. Her Majesty’s Government remains fully committed to the offshore prospecting policy pursued by the Falkland Islands Government, as laid out in the Offshore Petroleum (Licensing) Regulations 2000. This policy is entirely consistent with Her Majesty’s sovereign rights over the Falkland Islands.
Do investments in the territorial sea of the Falklands (Malvinas) fall under the territorial scope of application of the UK’s BIT (or, for that matter, under the scope of Argentina’s BITs)? Read the rest of this entry…
Our colleague Amanda Perreau-Saussine, lecturer at the University of Cambridge, passed away last week. Even though she was one of the kindest and gentlest persons one could ever hope to meet, she was dealt a cruel hand by life, with her first husband Emile dying tragically a few years ago due to medical incompetence, only for her to get cancer a short time later. The funeral will take place in Cambridge on Friday; more details and a tribute from the Cambridge Faculty of Law can be found here. Our thoughts are with her friends and family.
While financial markets have focused on Karlsruhe where the second challenge to the Eurozone rescue efforts in a year is currently pending, the Irish Supreme Court held on July 31 that Irish ratification of the Treaty establishing the European Stability Mechanism and the Fiscal Treaty was compatible with the Irish constitution. The court referred two questions to the Court of Justice under the latter’s accelerated preliminary reference procedure due to the exceptional urgency of the case. Notwithstanding, the Supreme Court declined to enjoin the Irish ratification process while the case is pending before the Court of Justice. The Irish government ratified both treaties on August 1.
In contrast, the German Bundesverfassungsgericht bidded its time on a similar challenge to German ESM ratification. Ireland is on the frontline of the Eurozone crisis. The Economist, in departure from the deference it typically pays to court proceedings, called the German Constitutional Court ‘ scandalously slow’ . Ireland is one of three Eurozone countries with an EU-IMF financing package in place. Most of the support is provided by the European Financial Stability Facility that the ESM is designed to replace once it starts operating. The need to decide this significant case as a matter of urgency was evident to the Irish Supreme Court. It put seven judges on the appeal, super-fast-tracked the hearing, and reserved four days for the hearing.
Readers interested in reform within the international human rights system, including the reform of the UN human rights treaty monitoring system previously discussed here, may be interested in yesterday’s announcement by the Inter-American Commission on Human Rights (IACHR), adding a regional dimension to discussions.
The IACHR serves as the focal point for human rights within what is touted as “the world’s oldest regional organization” – the Organization of American States (OAS). The OAS is a pan-American regional organization akin to the Council of Europe, supported by 35 states in the Western Hemisphere, and headquartered in Washington DC. The IACHR was created in 1959, and formally established in 1960, with a mandate to promote and protect human rights throughout the region. It is one of two organs of the inter-American human rights regime, the other being the Inter-American Court of Human Rights based in San José, Costa Rica. With functions similar to the UN treaty-monitoring bodies, and the old European Commission on Human Rights, the IACHR monitors the situation of human rights in the various OAS states, conducts on-site visits, handles individual complaints, and hosts several thematic rapporteurs. The Commission also brings cases to the Court, as was done in the old European human rights system prior to Protocol 11.
But all is not rosy at the IACHR, with a current docket of 8500 individual complaints currently pending before the seven-member part-time body. Financial resources have not kept up with the volume of complaints, and each commissioner also serves as a thematic rapporteur, with consequent duties and workload. Events within the Americas also add to the workload. In 2002, for example, the IACHR received 3783 complaints as a result of the banking measures adopted in Argentina, and further petitions were received in 2009 following the coup d’état in Honduras.
The IACHR has agreed to embark on an in-depth examination of its procedures and mechanisms. To this end it has, as of 3 August 2012, published its methodology document for what it calls its “2012 process of reform of its Rules of Procedure and of its institutional policies and practices” (with the Rules of Procedure last undergoing significant reform back in 2009). It is expected that consultation documents regarding the individual complaint procedure, precautionary measures, the monitoring function, and the promotion function, will be published on or before 25 August 2012, to be followed by a one-month period for comments from all users of the inter-American system. By the end of September, we should see an IACHR report to the OAS Permanent Council on possible reforms to the Rules, policies and practices of the IACHR, and in October, the IACHR promises to convene two hearings on strengthening measures to give key actors an opportunity for dialogue.
The webpage for the “Process for Strengthening the IACHR” can be found here.
On August 1, the European Court of Human Rights (ECtHR) dashed hopes of Northern Rock shareholders to obtain compensation from the UK for the collapse and nationalization of British bank Northern Rock. The Fourth Section of the ECtHR unanimously dismissed the case Dennis Grainger and others v. UK (Application No. 34940/10) as manifestly ill-founded and inadmissible. The decision has broader ramifications. It suggests that member countries of the European Convention of Human Rights (ECHR) have a wide margin of appreciation in setting macro-economic policy in general and in the resolution of banking and financial crises in particular. The ECtHR decision suggests that creditors and other interested parties will face an uphill struggle in challenging measures taken in the context of financial crisis resolution before the ECtHR and in obtaining compensation. It is an important decision at the intersection of international finance and human rights. Investors holding the debt of Eurozone governments will take note.
The court fully endorsed the holding and approach of the English courts. Like the English domestic courts, it found that the assumptions that the valuer of Northern Rock shares was required to make pursuant to the Banking (Special Provisions) Act 2008 s.5 (4) did not violate the rights of shareholders under Article 1 of the First Additional Protocol.
Dan Joyner sends us word of a new blog that he started – the Arms Control Law Blog. As the name suggests, the blog will be devoted to discussion and analysis of arms control law subjects, primarily from the perspective of international law.
The team of core bloggers at Arms Control Law is:
Professor Dan Joyner, University of Alabama School of Law Dr. Marco Roscini, University of Westminster Faculty of Law Mr. Pierre-Emmanuel Dupont, Rochelois, Besins & Associe Dr. Zeray Yihdego, Oxford Brookes University Faculty of Law Professor Eric Myjer, University of Utrecht Faculty of Law Professor David Fidler, University of Indiana School of Law Professor Barry Kellman, Depaul University College of Law Professor Dieter Fleck, Formerly of the German Ministry of Defense Professor James Fry, University of Hong Kong Faculty of Law.
As many of you have noticed, EJIL: Talk! was hacked yesterday, apparently by some Moroccan Muslim hacking group, for reasons that entirely escape me. We have now restored functionality, but we had to switch back to the default WordPress template, which is why the blog looks like it does now. We will restore our look as soon as possible, but please bear with us.
UPDATE: Everything now seems to be in order, with all services fully restored.