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The Newly Independent State of South Sudan – Should We Rethink the Right to Secession?

Published on July 15, 2011        Author: 

It would be remiss of us not to note the birth of South Sudan as the world’s newest State. South Sudan gained independence from the Republic of Sudan last Saturday (9 July) and was admitted to the United Nations yesterday as the 193rd member of the UN. Independence was the result of a referendum held earlier this year in which 99% of the South Sudanese population voted for independence. South Sudan is the second African State (after Eritrea) to split from its parent state after such a referendum (which in both cases have followed a lenghty conflict).  Back in 1964, the Organization of African Unity adopted its famous resolution (see p. 17) in which it:

SOLEMNLY DECLARES that all Member States pledge themselves to respect the borders existing on their achievement of national independence.

That resolution was often interpreted as prioritising the principle of stability of boundaries and of territorial integrity over the right of self determination. Indeed, it has often been used as an argument in favour of the view that the right of external self-determination (i.e a right to secession) does not exist for minority groups or outside the colonial context. On its face though that resolutions does not speak to relationship between the State and its constituent entities but rather to the relationship between States. Nothing in the resolution itself precludes the possibility of changes in those colonial boundaries (either through inter-State adjustments or through the granting of independence by States to particular parts of the State). Having said this, it is nonetheless clear, that the mood – in Africa and elsewhere – was largely to confine the principle of self determination – at least in so far as might confer a right or entitlement to secession – to the colonial or quasi colonial situations (i.e contexts of racist or alien domination). But Sudan (and indeed Eritrea before it) suggest that there might be cases where African states are willing to consider secession (though only when tired out by lenghty wars!). The question then is whether we should rethink the principle of external self determination to allow not just for the possibility of secession but a right  of secession. I would like to draw readers attention to two posts of earlier this year in which the authors do call for this. Read the rest of this entry…

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Call for Applications: The vices and virtues of international constitutionalism

Published on July 11, 2011        Author: 

European University Institute, PhD Training School

A three-day doctoral training school shall be held at the European University Institute, Florence, on October 20-22, 2011, in context of COST Action 1003.

The topic of this training school will be “the vices and virtues of international constitutionalism”, and submissions are invited from PhD students working in areas related to this topic who are interested in debating the topic with fellow PhD students and with internationally recognised experts in the field of interntional constitutionalism. .

The doctoral training school is intended to bring PhD students from different European countries together on topics related to COST Action 1003, International Law between Constitutionalisation and Fragmentation: the role of law in the post-national constellation. (to be found at the Action website: http://www.il-cf.eu/ ).  Support can be offered to PhD students from participating countries. Currently the following countries participate in the Action: Austria, Belgium, Czech Republic, Denmark, Finland, France, Germany, Greece, Israel, the Netherlands, Norway, Poland, Portugal, Spain, United Kingdom, Former Yugoslav Republic of Macedonia, Hungary, Ireland, Sweden and the European Institute in Florence. Serbia, South Africa and Australia are currently applying for partnership.

Topic

Two recent tendencies have shaped recent discourses on international constitutionalism. On one side, the expansion of international law to areas never touched before has put into question the legitimacy and ability of international law in managing subjects that belonged previously to states. On the other side, international law is fragmenting into functionally separated regimes, challenging the unity and coherence of international law. Read the rest of this entry…

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Senegal to Send Former Chadian President Habre Back to Chad – in Breach of Assurance to the ICJ.

Published on July 9, 2011        Author: 

According to the BBC:

Former Chadian President Hissene Habre is to be sent home from Senegal to face accusations that he committed atrocities during his eight-year rule.

Senegal said Mr Habre would be flown to Chad on 11 July.

Mr Habre is blamed for killing and torturing tens of thousands of opponents between 1982 and 1990, charges he denies.

Mr Habre – sometimes dubbed “Africa’s Pinochet” – has been living in Dakar since he was ousted.

In a statement, the Chadian government said President Idriss Deby was informed about the decision to return Mr Habre by Senegalese President Abdoulaye Wade.

Dakar separately confirmed this, without providing a reason for its move.

In 2008, Mr Habre was sentenced to death by a court in Chad for planning to overthrow the government.

He was sentenced in absentia along with several rebel leaders, who launched an assault on the Chadian capital, N’Djamena, earlier that year.

This is the latest in the long running saga regarding attempts to prosecute Habre for alleged torture and crimes against humanity committed by him while in power in Chad. After failed initial attempts to prosecute him in Senegal and a request for his extradition to Belgium, the African Union got involved in the matter and requested that Senegal prosecute Habre “on behalf of Africa”. Senegal has since amended its law to allow for this but insisted that the funding for the prosecution come from the international community with the Senegalese President expressing his frustration that the money wasn’t forthcoming. In the meantime, Belgium initiated proceedings before the ICJ arguing that Senegal had failed to comply with its obligations under the Convention Against Torture to prosecute Habre or to extradite him. Belgium also requested provisional measures ordering  Senegal not to permit Habre to depart from that country. However, a further complication was added when the ECOWAS Court of Justice, in a rather strange decision, held, late last year, that Senegal could only try Habre in an ad hoc special tribunal of an inernational character. For more on the background  on the case, see this ASIL Insight and for commentary on the ICJ proceedings, see previous EJIL:Talk! posts here, here and here.  For a comment on the ECOWAS Court judgment,see the ASIL Insight and this post by Prof. Bill Schabas on his blog.

Perhaps Senegal is just frustrated by the whole process, including the involvement of international organizations and international courts, and just wishes to rid itself of the problem. Given the effort of Senegal to amend its law and the saga over funding, one can’t blame Senegal for being frustrated by the decision of the ECOWAS court (which suggests having to start over again). This is a case where an international court has not helped the process. But despite Senegal’s frustration, it will be acting in breach of a solemn commitment it gave to the ICJ during the provisional measures hearing. The main reason why the ICJ declined to indicate provisional measures was because of the assurance that Senegal had given that it would not permit Habre to leave before the Court had given its final decision. In the provisional measures decision, the Court said:

 71. Whereas the Court further notes that Senegal, both proprio motu and in response to a question put by a Member of the Court, gave a formal assurance on several occasions during the hearings that it will not allow Mr. Habré to leave its territory before the Court has given its final decision;

 72. Whereas, as the Court has recalled above, the indication of provisional measures is only justified if there is urgency; whereas the Court, taking note of the assurances given by Senegal, finds that, the risk of irreparable prejudice to the rights claimed by Belgium is not apparent on the date of this Order;

73. Whereas the Court concludes from the foregoing that there does not exist, in the circumstances of the present case, any urgency to justify the indication of provisional measures by the Court;

Provisional measures ordered by the Court are binding but here the Court did not order any provisional measures on account of the assurance. So Senegal will not actually be in breach of an ICJ order. But it is bad form for a State to make such a formal assurance, which induces the Court not to make a formal order, and then for the State to breach its assurance. I’m not sure if there is a breach of a particular principle of international law here but it could be argued that Senegal would not be acting in good faith where it to return Habre to Chad. In any event, Belgium could return to the Court to ask for provisional measures before the transfer takes place. In fact the Court explicitly contemplated this  in para. 75 of the decision:

Whereas the present decision also leaves unaffected Belgium’s right to submit in future a fresh request for the indication of provisional measures, under Article 75, paragraph 3, of the Rules of Court, based on new facts;

 

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Call for Papers: Public International Law, International Criminal Law & International Human Rights Law: A Critical Evaluation of the Scholarship of Professor William Schabas

Published on July 9, 2011        Author: 

From: Dr. Kathleen Cavanaugh, Senior Lecturer, Irish Centre for Human Rights, National University of Ireland & Prof. Joshua Castellino, Professor of Law & Head of Law Department, Middlesex University, London, United Kingdom.

Over the last half a century the discourse of public international has been enlivened by a growing emphasis on international human rights law, spawning robust debate and discussion, and also the creation of an imperfect system of accountability for crimes against humanity, war crimes and genocide. In the last two decades in particular, the scholarship and activism of Professor William Schabas has had a significant impact on the growth and direction of the normative frameworks around these subjects. In addition through his own engagement in different theatres, Professor Schabas has also contributed to the spread of implementation models worldwide, and has supervised a growing number of successful doctoral contributions that have further enhanced the quality of the debate. His sterling role on the Sierra Leone Truth Commission is but one manifestation that that his contribution has spread well beyond the realms of the classroom: recognition that is also reflected in the bestowal of the Order of Canada upon him for his contribution to human rights.

On the occasion of his 60th year, we are seeking contributions from scholars, practitioners, judges and others that critically engage with the published contributions of Professor William Schabas. We seek this in the belief that the best testament to a scholar is a critical engagement with their work. We therefore invite contributions of between 8,000 and 10,000 words, in English or French that critically assess the work and impact of Professor Schabas’ writing. The book is likely to be published by Cambridge University Press and will therefore adhere to the house style of that publisher, with further details provided with the invitation letter to those whose abstracts have been accepted. The range of topics that we anticipate include: genocide, war crimes, crimes against humanity, the creation and functioning of the International Criminal Court, the death penalty, the concept of reservations to treaties, norms of jus cogens, minority rights, religion and human rights, truth commissions, reparative justice and  other topics including literature and human rights.

To be considered for publication we request interested authors submit a 500 word abstract, outlining the general thrust of their contribution and highlighting the aspect of Professor Schabas’ scholarship that will be engaged. This abstract should be sent to either of the two editors by the 1st of October 2011. Read the rest of this entry…

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European Court Decides Al-Skeini and Al-Jedda

Published on July 7, 2011        Author: 

HUDOC service has been intermittent this morning, but the judgments are now available – Al-Skeini v. UK, Al-Jedda v. UK – and they were well worth the wait. For more background, see my case preview and my thoughts on the alleged ‘embassy exception.’ In brief, the UK government lost quite badly, while the Grand Chamber has effectively overruled the House of Lords on a number of points; the applicants have every reason to be pleased. In Al-Skeini, the Court held that (1) all of the applicants were within the UK’s Art. 1 ECHR jurisdiction and (2) that the UK has not held an Art. 2-compliant investigation in five of the cases, all but that of Baha Mousa where there is an ongoing public inquiry. In Al-Jedda, the Court held that (1) Mr. Al-Jedda’s detention was attributable to and within the jurisdiction of the UK, and (2) as the UK had no obligation under a UN Security Council resolution to detain preventively and without judicial review, Art. 103 of the UN Charter was not even at play, and that therefore Mr. Al-Jedda was detained unlawfully under Art. 5(1) ECHR. In both cases the Court awarded substantial damages and costs. The financial and policy implications of the two cases are immense.

The most important bits are of course in the Court’s reasoning, as we will now see. Obviously, this analysis is relatively provisional and on short notice. However, it is clear that the Court has articulated some very important principles and that these will be leading cases on the various issues for many years to come. Importantly for precedential value, the Court was unanimous or near-unanimous in both cases . Whether the Court’s reasoning is persuasive on all counts will undoubtedly be a matter of controversy – I at least am certainly not persuaded on some of the counts, though I very much like the human rights-friendly end results. Without further ado, let us now move to the good, the bad, and the ugly in the two judgments.

(Warning! longish post).

Read the rest of this entry…

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Can Gaddafi invoke self-defence against NATO; have NATO leaders committed the crime of aggression?

Published on July 6, 2011        Author: 

Dr Gleider I. Hernández  is lecturer in law at the University of Durham; Thomas R. Liefländer is a PhD candidate at the University of Cologne.

The recent events rapidly unfolding in Libya have raised a number of important questions for international lawyers. Among them, the precise delineation of the scope of Security Council authorisation to use force has given rise to intense discussions on this blog (see here, here, and here). To recall, the Security Council authorised the use of “all necessary means” in order to protect civilians and civilian-populated areas as regards the situation in Libya (in Security Council Resolution 1973). The discussion on this blog centred primarily on exactly how narrowly the relevant authorisations are to be construed, focussing in particular on how direct the relation must be between any given action and the protection of civilians or civilian-populated areas.

Against this background, we intend to use the Libya situation to analyse a different question, namely, the possible legal consequences of exceeding the scope of Security Council authorisation. We approach the issue from two related, but nevertheless distinct, angles. First, we consider whether, given Security Council authorisation to use “all necessary means” in Libya, it is still possible that international military actions exceed the scope of that authorisation, thus triggering Libya’s right to self-defence. This issue of overstepping authorisation takes on renewed urgency in the light of NATO’s admission that it has killed civilians in certain air raids (most notably the air raid of 22 June 2011, reported in the Guardian, where NATO was bombing checkpoints that were not military installations—see infra for further discussion) and France’s controversial decision to supply the Libyan rebels with arms (see this Guardian article, as well as Dapo Akande’s recent post).

Secondly, we will offer some brief thoughts on whether the leaders of the States acting under Security Council authorisation may be committing the crime of aggression, as defined for the purposes of the Rome Statute of the ICC, by overstepping their mandate. The second question is, of course, entirely hypothetical, considering that the ICC’s jurisdiction over the crime of aggression cannot be activated before 2017, and that the existence of such a crime under customary international law is in any event doubtful. Nevertheless, we believe this line of enquiry to be important, as a device to highlight the grave consequences that may result from an overly broad reading of a Security Council authorisation. Read the rest of this entry…

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UK Case on Complicity by UK Intelligence Agencies in Torture Abroad

Published on July 5, 2011        Author: 

The United Kingdom’s Equality and Human Rights Commission (EHRC) has initiated judicial review proceedings in the High Court in London questioning the legality of instructions issued to the UK’s intelligence agencies on participation in interviews with detainees held abroad by countries with poor human rights record (see Guardian article of 28 June and the Guardian article of 29 June).The case is one of a number of proceedings in the UK in which actions of UK intelligences with respect to persons detained abroad have been called into question. The fact pattern alleged is now familiar, one intelligence agency takes part in questioning of a person detained by a foreign agency that is alleged to have tortured the detainee. Or the first agency actually requests the detention or perhaps supplies questions or other information to the foreign detaining agency. As discussed in previous EJIL:Talk! posts by Ben Batros and Philippa Web, as well as by Nehal Bhuta (see here and here), similar allegations made against Australian and Canadian agents have led to the Habib case (in Australia) and the Khadr case (in Canada). The allegations of complicity by UK agents in torture committed by foreign States led the government to establish an inquiry to look into the matter (see here).

Unlike other cases, the present case – Equality and Human Rights Commission v. Prime Minister – is not brought by a victim seeking compensation or some other form of redress or disclosure. These are proceedings which are forward looking and seeking to force the UK to change its policy as represented in instructions to its agencies. The instructions have been in existence since 2002 but they were redrafted and made public in 2010. However, the case reveals questions as to the right standard to employ when considering whether one State or its agents are in breach of international law when it participates in human rights violations by another State. A particular issue raised in these proceedings is whether participation in questioning by a foreign agency is prohibited under international law when the UK agent “knows or believes” that torture will occur or rather occurs when “there is a risk” that torture will occur? If the latter standard (which is lower) is to be adopted what type of risk will suffice so as to preclude participation in activity that creates a risk of torture or cruel or inhumane treatment? Should the standard be the “real risk” adopted in non-refoulement case or should it be a “serious risk” standard –which, arguably, is higher?                                                   Read the rest of this entry…

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Filed under: EJIL Analysis, Torture
 

UNCTAD and UAM announce a Call for Papers

Published on July 2, 2011        Author: 
UNCTAD and Universidad Autónoma de Madrid are organizing a conference taking place in Madrid in March 2012 in order to discuss UNCTAD’s draft Principles for promoting responsible sovereign lending and borrowing.

For this conference, a call for papers has been released and all interested scholars and practitioners are encouraged to submit their work on the relevant topics before 4 October 2011. Details of the call for papers can be found in English and Spanish below.

Convocatoria de Articulos (esp)

 

Call for Papers (eng)

 

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The Als Are Coming!

Published on July 1, 2011        Author: 

The European Court has announced today that on Thursday next week, 7 July, it will hand down its long awaited Grand Chamber judgments in Al-Skeini and Al-Jedda, both against the United Kingdom. See more in Waiting for the Als, and in my case preview. We will of course strive to have quick commentary on the judgments once they come out – let’s hope they were worth the wait!

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France Admits to Arming Libyan Rebels – Was this Lawful?

Published on July 1, 2011        Author: 

France has admitted supplying weapons to rebels in Libya fighting against Colonel’s Gaddafi’s forces. According to Channel 4 News in the UK:

A senior French diplomatic source who wished to remain nameless told Channel 4 News that the weapon drop “was an operational decision taken at the time to help civilians who were in in imminent danger. A group of civilians were about to be massacred so we took the decision to provide self-defensive weapons to protect those civilian populations under threat.”

“It was entirely justifiable legally, resolution 1970 and 1973 were followed to the letter and it can be assured that there will be no diplomatic crisis despite what the African Union and Russia may say,” the diplomat said.

“France will not rule out more weapon drops in the future as we will take every decision on a case by case basis,” he added. (see also France 24)

It has also been reported that Russian Foreign Minister Sergei Lavrov has stated that

“If this is confirmed, it is a very crude violation of UN Security Council resolution 1970 [which imposes an arms embargo on Libya].”

The battle lines are clearly joined on this issue. Marko and I discussed this issue back in March (see here for my post and here for Marko’s) with comments from readers. My own view remains that SC Res 1973 which “Authorizes Member States . . .  to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya” (emphasis added) explicitly and also structurally creates an exception to the arms embargo in SC Res 1970. However, as I stated at the time, it is only lawful to provide arms to the rebels if that is for the purpose of defending civilians or civilian protected areas. It is unlawful to provide arms for aims that go beyond defence of civilians and civilian protected areas.  This is the position taken by the UK Foreign Office and restatedin relation to this incident (see here). Read the rest of this entry…

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