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European Court of Human Rights Upholds State Immunity in Case Involving Allegations of Torture – Jones v United Kingdom

Published on January 14, 2014        Author: 

Today, a chamber of the European Court of Human Rights has handed down its judgment in the long awaited case of Jones and others v. United Kingdom (application no. 34356/06 & 40528/06). The case concerned the UK House of Lord’s decision ([2006] UKHL 26)  to accord state immunity in civil proceedings brought in the UK, against Saudi Arabia and Saudi Arabian officials, by British nationals who alleged they had been tortured in Saudi Arabia. The European Court of Human Rights has today upheld that decision of the House of Lords. The chamber of the Court held by six votes to one that the granting of immunity to Saudi Arabia and its state officials in civil proceedings reflected generally recognised rules of public international law. Therefore, dismissal of the case by the English courts on grounds of state immunity did not amount to a violation of Article 6 (1) of the European Convention on Human Rights which guarantees a right of access to court. In particular, the Chamber held that there was noaccess to court.

According to the Chamber, while there was some emerging support at the international level in favour of a special rule or exception in public international law in cases concerning civil claims for torture lodged a state’s right to immunity could not be circumvented by suing named officials instead. The decision picks up from where the International Court of Justice left off in Jurisdictional Immunities (Germany v. Italy) case in deciding that allegations of violations of jus cogens rules does not mean that state immunity becomes inapplicable. However, the European Court of Human Rights has also stated that in the light of the current developments in this area of public international law, this was a matter which needed to be kept under review by Contracting States.

EJIL:Talk! and Opinio Juris will be providing reactions to this decision over the coming days. Here on EJIL:Talk! Lorna McGregor (Essex University), who worked on the case while she was Legal Adviser at Redress (an NGO that helps torture survivors), and Philippa Webb (Kings College London) will discuss the case. Over at Opinio Juris,  Chimène Keitner, Bill Dodge (both at the University of California, Hastings College of Law) and Ingrid Wuerth (Vanderbilt) will provide commentary from across the pond. All of them have done brilliant work on immunity and all have written influential pieces on the relationship between immunity and human rights. A stellar line up indeed!

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Was the US Entitled to Require the Departure of the (former) Indian Consul?

Published on January 13, 2014        Author: 

For my previous posts on legal issues arising out of the diplomatic incident between the United States and India regarding arrest of the Indian Deputy Consul-General see Part I and Part II

At the end of last week, Devyani Khobragade, the Indian consul arrested in New York last month returned to India, after she was by a federal grand jury (see New York Times and Reuters).

Devyani Khobragade

Devyani Khobragade

Apparently, the US first approved India’s transfer of Ms Khobragade to the Indian mission to the UN, a move which granted her diplomatic immunity, including immunity from prosecution (as discussed in my previous posts – part I and part II). The US then requested that India waive that diplomatic immunity. When India refused that request, the US requested or demanded Ms Khobragade’s immediate departure from the US. In response, India has also requested that the US withdraw one of the members of its embassy in Delhi. Although it is an unfriendly act, it not unlawful for a receiving state to expel a diplomat or consular official of another state. Indeed, this possibility is explicitly provided for in Article 9 of the Vienna Convention on Diplomatic Relations and Article 23 of the Vienna Convention on Consular Relations. Under both provisions, a receiving state may declare a person to be persona non grata, with the effect that the sending state is bound to recall the diplomat or consul, or to terminate their functions in the mission. There is no requirement for the receiving state to give reasons for declaring a diplomat or consul persona non grata and it may make such a declaration because of the official or private conduct of the official, or even for reasons unconnected that with particular person. So, India is within its rights to require the US to withdraw one of its embassy staff, in retaliation for the US’s request that Ms Khobragade leave the US. But was the US entitled to require her departure?

The wrinkle here is that when her departure was requested Ms Khobragade was no longer a consular official of India, accredited to the US but a representative of India to the United Nations. Representatives of states to the UN are not accredited to the US and are not exercising functions in the bilateral relations between the US and that State. Therefore, it would be inappropriate for the state of bilateral relations between the US and a particular country to affect the ability of that country’s representatives to perform their functions with regard to the UN.  The US, as host state to the UN headquarters, clearly has an interest in who is allowed into the US and who can stay in the US. However, if the US could exercise its normal sovereign prerogatives with regard to admission of non-nationals into its territory in determining which person can be admitted to act as representative of a state to the UN, the US would be entitled to determine, without legal restraint, how countries are represented at the UN and be able to affect the capacity of states to enjoy their rights as members of the UN. Read the rest of this entry…

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Reminder: ESIL Vienna Conference Call for Papers

Published on January 10, 2014        Author: 

Just a reminder to our readers that 15 January is the deadline for the submission of abstracts for the call for papers for the 10th anniversary conference of the European Society of International Law to be held in Vienna, 4-6 September 2014. Details regarding the call and the procedure can be found here.

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Chatham House Paper on State Immunity

Published on January 9, 2014        Author: 

Readers interested in the law relating to state immunity will find the Chatham House briefing paper (from December 2013) State Immunity: Recent Developments and Prospects very useful indeed. The paper is written by Joanne Foakes, Associate Fellow at Chatham House and former Legal Counsellor at the UK’s Foreign and Commonwealth Office. The paper provides a really good survey of recent cases, from international and national courts, regarding state immunity. In the paper, she discusses developments regarding the exceptions to immunity in the areas of commercial transactions, human rights, employment contracts, the territorial torts (personal injury and damage to property) as well as issues relating to enforcement of foreign judgments. Throughout the paper, she seeks to identify the impact of the UN Convention on Jurisdictional Immunities of States and their Property. The “summary points” of the paper are as follows:

  • Nearly nine years have elapsed since the adoption of the 2004 UN Convention on State Immunity. This paper considers whether the convention has increased legal certainty in this area or whether practice is as unpredictable and divergent as ever.
  • So far the convention has had little impact on countries which traditionally accord absolute immunity to other states in their courts. It is therefore too early to say whether it can succeed in its objective of enhancing legal certainty and harmonizing practice.
  • There is evidence, however, that many national and international courts such as the European Court of Human Rights are looking to the convention as a reflection of customary international law. In these circumstances there is some force in the argument that states that want to influence the way in which courts interpret the convention should become parties to it.
  • Uncertainties about the scope of the convention remain, although to some extent ’ international law so as to stop the development of an exception for serious human rights violations.
  • For the United Kingdom and other Western states with existing legislation on state immunity, the benefits and potential disadvantages of becoming party to the convention remain finely balanced.
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International Human Rights Law, Investment Arbitration and Proportionality Analysis: Panacea or Pandora’s Box?

Published on January 7, 2014        Author: 

GuntripEdward Guntrip is a Lecturer in Commercial Law at the University of East Anglia.

Investment law jurisprudence has failed to fully explore the relationship between international investment law and international human rights law (for example, see the cursory examination given in Vivendi v. Argentina para 262 and Pezold v. Zimbabwe Procedural Order 2 paras 57 – 59). As a result, the question of how to approach normative conflict between principles drawn from these regimes remains pertinent when resolving investment disputes with human rights implications. Proportionality analysis has been proposed as a suitable methodology for the resolution of this type of normative conflict (see Schill, ‘Cross-Regime Harmonization through Proportionality Analysis: The Case of International Investment Law, the Law of State Immunity and Human Rights’ 27 ICSID Review – FILJ (2012) 87). The use of proportionality analysis received tacit support when an ICSID arbitral tribunal suggested ‘counterbalancing’ competing obligations drawn from international investment law and international human rights law so as to determine which should be prioritised (see SAUR v. Argentina para 332, although the ICSID arbitral tribunal did not conduct the proposed balancing exercise). Despite support for proportionality analysis, the employment of this methodology by investment tribunals to resolve conflicts between investment protection standards and obligations sourced from international human rights law should be approached with caution. Whilst proportionality analysis is attractive as a concept, its application in instances of inter-regime normative conflict remains problematic.

Proportionality analysis is a legal construct that provides a methodology for decision makers to balance conflicting rights and interests by using a three-stage test. Initially, the decision maker must determine whether the measure giving effect to the interest being prioritised is capable of achieving its objective.  If so, the focus turns to whether the measure is necessary to achieve its end, or whether a less restrictive, but equally effective measure could be used. Finally, the decision maker addresses proportionality stricto sensu. This final stage evaluates whether the effects of the measure adopted are excessive compared to the competing right or interest that has been infringed. The decision maker should appraise the weight of each interest before a determination is made regarding whether the means used achieve their aim.

The application of proportionality stricto sensu is the most problematic aspect of proportionality analysis. Read the rest of this entry…

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“You Can’t Change the Meeting Place” – Khodorkovsky, Bad Faith, and the European Court of Human Rights

Published on January 6, 2014        Author: 

Julian LehmannJulian Lehmann is a research associate at the Global Public Policy Institute in Berlin, Germany and a SJD candidate at Dresden University of Technology.

“Ten Years a Prisoner”

Mikhail Khodorkovsky (pictured right, credit), the former Russian business magnate and opposition sponsor was released from prison under a presidential pardon in late December – just two months after he had  commemorated the ten year anniversary of hisMikhail_Khodorkovsky_2013-12-22_3 imprisonment. The images of the tycoon fallen from favor into the dock for many had became symbols for political interference with courts.  Regardless of whether one clings to such symbolism, judicial independence in Russia still leaves much to be desired, not least according to the UN Special Rapporteur on the independence of judges and lawyers.

Khodorkovsky and his associate Platon Lebedev are the most prominent alleged victims of political imprisonment. As many will recall, Khodorkovsky was arrested in 2003 and convicted in 2005 for tax evasion in the turbulent 1990s. Then, he sold produce of his oil and resource company Yukos to alleged sham Russian firms registered in low tax zones. He was put on trial again in 2010. Vladimir Putin, pending Khodorkovsky’s appeal, bragged in a TV interview that ‘a thief must sit in jail’. He alluded to a phrase from the popular Soviet TV mini-series ‘You Can’t Change the Meeting Place’ – a detective story featuring the dissident artistic icon Vladimir Vysotsky. The title takes up the series’ final, in which Vysotsky suggests that he and his fellow policemen have no choice but to go for a plan that puts their abducted colleague at risk.

Putin omitted the second half of the film’s citation. Vysotsky, the old-school hot rock, repeatedly clashes with his fastidious partner over the choice of means for policing. Not shying away from breaking the law, Vysotsky states that ‘A thief must be in jail – and people are not interested in how I get them there.’

Putin’s candidness about his view on Khodorkovsky hasn’t gone unnoticed. Read the rest of this entry…

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Comparative Public Law Methodology in International Investment Law

Published on January 3, 2014        Author: 

In my last post I argued that investment law should be reconceived as a system of public law adjudication in order to react to current criticism. The debate over the role of public law in investment arbitration has resounded in other discussions in this forum. It requires understanding arbitration not only as a dispute settlement mechanism, but also as a form of global governance; understanding arbitrators not only as agents of the parties, but also as trustees of the international community; interpreting investment treaties in light of their global implications; and increasing transparency and third-party participation. In other words: Public law rationales should guide the practice of investor-State arbitration.

This framework has important methodological consequences. Under a public law approach to international investment law, parallel problématiques in domestic public law and in other international legal regimes should be studied in order to resolve investor-State disputes in ways that are acceptable to all stakeholders. Comparative public (administrative, constitutional, and international) law, in particular, should become part of the standard methodology of thinking about and interpreting international investment treaties.

Problems with Classical Methods of Treaty Interpretation

Comparative public law is particularly useful because traditional methods of treaty interpretation and reliance on customary international law, while not irrelevant, face significant limits in international investment law. Although numerous inter-State claims commissions existed in the 19th and early 20th centuries, the jurisprudence of these bodies often concerns issues that are different from problems faced by modern regulatory States. Likewise, traditional methods of treaty interpretation often are too vague to guide the application of international investment treaties. In interpreting, for example, fair and equitable treatment provisions, an interpretation of the ordinary meaning may replace the terms “fair and equitable” with similarly vague and empty phrases such as “just,” “even-handed,” “unbiased,” or “legitimate,” but does not succeed in clarifying the standard’s normative content, nor does it indicate what is required of States in specific circumstances. Read the rest of this entry…

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Happy New Year for 2014 and our Most Popular Posts of 2013!

Published on January 1, 2014        Author: 

I would like to take this opportunity to wish our readers a Happy New Year! We are grateful to you for your support over the past year, and indeed over the past five years, since the launch of the blog in December 2008. The figures regarding the readership of the blog continue to climb steadily. We also have so many of you (in four figures) who subscribe to receive emails of our postings. The numbers submitting posts for blog are also increasing.

Over the past year we have made a number of additions to the editorial team. Sadie Blanchard joined us associate editor in the summer and her contributions to our work have been impressive. We are very grateful to her for all her hard work behind the scenes. Over the past few months, we have also  added a team of Contributing Editors, drawn in part from the boards of EJIL. Thank you to Anne Peters, Diane Desierto, Christian Tams, Matthew Happold and Antonios Tzanakopoulos. We look forward to their contributions over 2014.

When EJIL:Talk! was launched in December 2008, it was a bold move by a leading journal to establish a blog. The European Journal of International Law has a tradition of boldness and  innovation which has served it well over the past quarter of a century. Although there are many excellent journals and blogs in the world of international law, I think the blog/journal combination of EJIL and EJIL:Talk! remains unique – at least in international law. The editors of the blog remain grateful to the boards of EJIL for their support. We are particularly grateful to the EJIL Editor in Chief, Joseph Weiler. He was instrumental, from the very beginning, in the establishment of the blog and has been generous in his support and encouragement.

This time last year, I wrote a post setting out our most popular posts of 2012. Below are our 10 most popular posts of 2013

  1. The Legality of Military Action in Syria: Humanitarian Intervention and Responsibility to Protect (Dapo Akande)
  2.  So, you want to do a PhD in international law? (Douglas Guilfoyle)
  3. Danish Judge Blasts ICTY President  (Marko Milanovic)
  4. Catalonia’s Independence: A Reply to Joseph Weiler (Nico Krisch)
  5.  Kadi Showdown: Substantive Review of (UN) Sanctions by the ECJ  (Antonios Tzanakopoulos) Read the rest of this entry…
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The Immunity of Representatives to the UN: A New Twist in the Diplomatic Row Between India and the United States

Published on December 30, 2013        Author: 

Part 1 and Part 3

The diplomatic row between India and the United States over the arrest and prosecution of Devyani Khobragade, the Indian deputy consul-general in New York, for visa fraud and violation of US employment laws, continues (see my previous post) but new facts are emerging which may affect a determination of whether the US acted lawfully in arresting Ms Khobragade. India has taken further retaliatory measures against the US by withdrawing some of the privileges enjoyed by US diplomats and their families in the India. It is also investigating possible tax violations by US officials and has  issued new  identity cards to US consular officials in which make it clear to those officials (and to the police) that those consular officials may be arrested for serious offences (see recent New York Times, Reuters and BBC reports). With regard to Ms Khobragade herself, new questions have emerged with regard to the immunity that she may be entitled to. As noted in my previous post, India has, since her arrest, moved her from its consulate in New York to the Indian Mission to the UN, apparently, in an attempt to obtain full diplomatic immunity for her. It has now been asserted that even at the time of the arrest, she was temporarily assigned to the Indian Mission to the UN to assist with work in connection with the General Assembly session (see Reuters report). This may well change the picture as to whether Ms Khobragade was actually immune from arrest at the time.

In my previous post, I discussed the legality of the deputy consul-general’s arrest on the basis that she was only entitled to consular immunity. As noted in that post, consular officials are only entitled to functional immunity from prosecution, i.e immunity in respect of acts performed in the exercise of her consular functions, and may be arrested for grave crimes (pursuant to a decision of a competent judicial authority). However, the position is different with regard to representatives of states to the UN. If Ms Khobragade was already a part of the Indian Mission to the UN when arrested, or if she does become a part of the Indian Mission then the position with regard to the arrest, and with regard to the prosecution might be different from what was first thought.

Let me begin by considering the legality of the arrest of Ms Khobragade in the light of the claim that she was already a member of India’s mission to the UN at the time of the arrest.  Reuters report that

“[s]he was temporarily moved to India’s U.N. mission in August to help with the workload ahead of the General Assembly session and a visit by the prime minister. A copy of her accreditation, made available to Reuters, lists her as an adviser for a period from August 26 until December 31.”

If this is correct then Ms Khobragade might well have been immune from arrest at the time when she was arrested. The reason for this is that Section 11(a) of the 1946 General Convention on Privileges and Immunities on the United Nations provides that “Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions . . .”, enjoy “Immunity from personal arrest or detention”. Read the rest of this entry…

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Announcements: Calls for Papers

Published on December 27, 2013        Author: 

1) Property, Environment, and Jus Post Bellum: Clarifying Norms, Principles and Practices, June 11 – 13, 2014, The Hague, Netherlands. The Jus Post Bellum Project at the Grotius Centre for International Legal Studies has issued a call for papers for each of two seminars scheduled from 11 – 13 June 2014. The first call for papers relates to environment and jus post bellum.  The second call for papers relates to property, investment, and jus post bellum.  The main aim of these seminars is to create guidelines for law and policy for property and the environment in the transition from armed conflict to peace (jus post bellum). Please read the call for papers for more information about each seminar.

2) The “Cross-Fertilization” Rhetoric in Question: Use and Abuse of the European Court’s Jurisprudence by International Criminal Tribunals. On June 5-6, 2014, Edge Hill University (Omskirk, UK) is hosting a two-day international workshop. The event will focus on the legal phenomenon of cross-fertilization between international criminal law and human rights principles developed by specialized supranational bodies. The goal is to critically assess the manner in which widely-recognized standards of human rights have been used (or misused) by international criminal tribunals. Proposals are welcomed on topics specified in the call for papers below. Interested participants should provide an abstract of up to 500 words and a CV by the 15th of February, 2014 to mariniet [at] edgehill [dot] ac [dot] uk. Speakers will be informed of acceptance by the 1st of March. Outstanding papers will be selected for publication. More information is available here.

3) Call for papers for a Special Issue of the Journal of International Criminal Justice: Refugee Law and International Criminal Justice. The Special Issue will provide an opportunity for scholars and practitioners to explore the evolution of the various intersections between refugee and migration law on one hand and international humanitarian and criminal law on the other. Questions that can be examined include whether recourse to international humanitarian or criminal law is appropriate for defining a refugee or providing subsidiary protection; whether international criminal law can help or rather hinder the proper development of the concepts contained in the exclusion provisions; what is or should be the interaction, if any, between non-refoulement obligations and human rights concerns to expulsion, on the one hand, and the aut dedere aut judicareobligations, on the other; how the bodies of law interact in regard to forcible displacement; do decisions by international criminal tribunals have an impact on refugee agencies in the field, etc. Please consult the full call for papers here for details. The deadline for abstract submission is 28 February, 2014.

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