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The Right to Religious Freedom and the Threat to the Established Order as a Restriction Ground: Some Thoughts on Account of the Achbita Case

Published on March 23, 2017        Author: 

On March 15, 2016, the European Court of Justice (ECJ) heard two different cases, the case of Achbita and that of Bougnaoui. As noted here, while both cases had the wearing of the Islamic headscarf at work as a common factual background, the legal questions asked were different. The Achbita case, referred to the ECJ by the Belgian Cour de Cassation, concerned Achbita’s dismissal from work as a receptionist. The dismissal took place after she refused to comply with a prohibition to wear the Islamic headscarf when dealing with customers. The Bougnaoui case, referred by the French Cour de Cassation, focused on a similar dismissal after she refused to abide by her boss’ demands and take off her Islamic headscarf, following the relevant wishes expressed by one of the enterprise’s clients. Nevertheless, the two courts brought different questions before the ECJ for a preliminary ruling. The Belgian supreme administrative court asked the ECJ whether such a ban from wearing the headscarf at work constituted direct discrimination. Its French counterpart focused on the client and whether his will not to have services provided by an employee wearing a visible religious symbol or attire contravened EU law.

On Mach 14, 2017, almost a year after the hearing of the cases, the ECJ issued its judgments (here and here). In the case of Achbita, the ECJ ruled that employers, coming to pursue a policy of political, philosophical and religious neutrality, have the right to prohibit their workers from adhering to a specific religious dress code or from wearing at work visible religious symbols. On the contrary, in the Bougnaoui case, the court’s holding was that employers cannot discriminate between employees who wear religious symbols and those who do not, due to a customer’s demand. Accordingly, while the Bougnaoui judgment closes the door to any potential restricton of religious expression at work, this is not the case with the Achbita one. The latter can be seen as introducing a possible infringement on religious freedom even if the Court ruled that employers have the option and not the obligation to impose such a ban on visible religious symbols. Through the granting of such an option, the ECJ sends the message that an individual cannot cite religious beliefs in order not to comply with generally set applicable norms.

This has been palpably demonstrated in domestic jurisprudence on both sides of the Atlantic. For example, in the Employment Division v. Smith, the U.S. Supreme Court held that two Native Americans had been justifiably dismissed from their work after the ingestion of peyote, a powerful entheogen. The fact that their religious beliefs sanctioned such an ingestion was not a valid ground for them to contravene the laws of the State of Oregon which prohibited possession and use of the particular substance. Similarly, in the case of Bull v. Hall, the UK Supreme Court held that the religious beliefs of a hotel keeper could not justify discrimination against same-sex couples and justify a policy according to which the hotel suites destined for married couples would be given only to heterosexuals. Read the rest of this entry…

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Azerbaijan: Is it Time to Invoke Infringement Proceedings for Failing to Implement Judgments of the Strasbourg Court?

Published on March 22, 2017        Author: 

A year ago, on 17 March 2016, the European Court of Human Rights issued a landmark judgment against Azerbaijan finding a rare violation of Article 18 of the European Convention on Human Rights, and the first based on the repression of human rights defenders as a result of their human rights activities. The Court found that the pre-trial detention of a prominent Azerbaijani human rights defender, Rasul Jafarov, was unlawful and aimed ‘to punish the applicant for his activities in the area of human rights’, in violation of Article 18 (restrictions of rights for a purpose other than the one prescribed in the Convention) and also Article 5 (the right to liberty). That same day, after having spent 15 months in a prison cell, Rasul Jafarov was released under the presidential pardon decree.

In finding the violation of Article 18, the Court took note of the totality of repressive circumstances in which Azerbaijani human rights NGOs operated and the numerous statements of high ranking Azerbaijani officials criticising those NGOs and their leaders, including the applicant, and concluded that Jafarov’s case could not be viewed in isolation from this backdrop.

Earlier cases, such as Tymoshenko v Ukraine and Lutsenko v Ukraine, had found a violations of Article 18 due to the unlawful detention of political opposition leaders.

Although Article 18 cases are very rare in the Court’s practice, the Jafarov judgment is the second one in which the Court has found Azerbaijan’s actions in arresting its critics in violation of Article 18 of the Convention. In the case of opposition leader Ilgar Mammadov the Court established that his arrest and pre-trial detention aimed to punish him ‘for criticizing the Government’. Ilgar Mammadov has remained in prison for more than four years serving a seven-year sentence on charges of organising mass disorder and resisting arrest after he criticised the Government’s handling of demonstrations and unrest in the region of Ismayili. Read the rest of this entry…

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Hegemonic Cooperation or Succession? The United States’ Emerging ‘Abandonment’, and China’s Rising ‘Defense’, of the Global Order

Published on March 21, 2017        Author: 

Many international lawyers all over the world will doubtless have experienced a surge of surrealism over the past weeks, witnessing dramatic contrasts emerging between American and Chinese foreign policies seeking to redefine the global order – with the latter veering towards deepening strategic international cooperation around the world, and the former emphatic about the insularity of its ‘America First’ policy (read: ‘walls’ could be literal and figurative). In January 2017, Chinese President Xi Jinping gave a rousing defense of economic globalization at Davos, pointing to the inevitability and irreversibility of the global economy, where for China, “the right thing to do is to seize every opportunity, jointly meet challenges and chart the right course for economic globalization.” A month later, American President Donald Trump delivered his Address to the US Congress stridently pronouncing the country’s shift towards a “direct, robust, and meaningful engagement with the world…American leadership that is based on vital security interests…[where] partners must meet their financial obligations…[and where] America is willing to find new friends, and to forge new partnerships, where shared interests align.”  The historic first meeting this week between US Secretary of State Rex Tillerson and Chinese President Xi Jinping was the first high-level commitment towards greater joint cooperation between the United States and China, possibly suggestive of softening stances between the established hegemon and the rising world power in containing shared threats, such as North Korea’s demonstrable nuclear ambitions.

The United States’ emerging abandonment of the same postwar multilateral architecture it largely created – in favor of much thicker versions of protectionism, bilateralism, and unilateralism – is ironically taking place at a time when China is gaining confidence in rising to defend the global order and the enduring value of international institutions. It is nothing less than a sharp reversal of the “New Great Game” dynamics I observed four years ago, characterizing the United States as the “unipolar hegemon that incorporates international law justification as part of its operational code in international relations”, and China as the “rising power whose operational code in international relations remains facially deeply sovereigntist but latently appears to be shifting towards some instrumental internationalism – quite consistent with the ideological hybridity bred by ‘socialist modernization’ or what Ronald Coase [described as] ‘Chinese capitalism’.” (at p. 370).

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The ECtHR’s Ilias and Ahmed v. Hungary and Why It Matters

Published on March 20, 2017        Author: 

The European Court of Human Rights delivered a judgment last Tuesday in the case of Ilias and Ahmed v. Hungary, finding multiple violations of the European Convention as a result of Hungary’s border procedures and its treatment of asylum-seekers. The applicants, nationals of Bangladesh, spent over three weeks in the transit zone before being sent back to Serbia, considered a “safe third country” under a 2015 Governmental Decree. Both applicants were part of the first wave of asylum-seekers attempting to access Hungary after the entry into force of controversial new legislation in September 2015, which effectively led to the Western Balkans route turning towards Croatia over the course of the next few days.

In what constitutes its first verdict on Hungary’s latest practice – which involves deprivation of liberty and almost universal forced return to Serbia on the basis of the safe third country concept – the Court found violations of Arts 3, 5 and 13 in conjunction with Art. 3 of the Convention, namely because the applicants had been subjected to de facto deprivation of liberty with no adequate safeguards for over three weeks, didn’t have access to an effective remedy with respect to the conditions of their detention and ended up being sent back to Serbia without ever having the possibility of ill-treatment genuinely considered either by the asylum authority or the Szeged Administrative Court in their attempted appeals against the former’s ruling. In finding violations, the Court generally agreed with more-or-less all of the applicants’ arguments, however it did not agree with them that the conditions of their detention in the border zone reached the level of severity necessary for there to be a violation of Art. 3 in that respect.

The Implications Read the rest of this entry…

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Announcements: CEILA Lecture; CEILA Book Symposium; CfS UCL Journal of Law and Jurisprudence; Conference on ‘Law and Memory in Established Democracies’; Towards Utopia – Rethinking International Law Workshop; Conference on the Right for the State to Regulate in International Law

Published on March 19, 2017        Author: 

1. CEILA Lecture on The Use (and Misuse) of European Human Rights Law in Investor-State Arbitration. The annual lecture of the  Centre for European and International Legal Affairs (CEILA) at QMUL is being given by Prof José Alvarez (New York University Law School) and is entitled  “The use (and misuse) of European Human Rights Law in Investor-State Arbitration”.  Professor  Max Scherer (QMUL) will be chairing and Professor Zachary Douglas QC (Graduate Institute Geneva) is the discussant. The lecture is on 28 March 2017 (6.30-8pm) and will be followed by a drinks reception (8-9pm). See here for more details and to book a place.

2. CEILA Book Symposium on The Impact of International Organizations on International Law. A QMUL  Centre for European and International Legal Affairs (CEILA) book symposium  on Prof José Alvarez’s new book The Impact of International Organizations on International Law with Professor José Alvarez (NYU), Professor Dan Sarooshi (Oxford), Professor Phoebe Okowa (QMUL), Professor Surya Subedi QC (Leeds), Dr Chanaka Wickremasinghe (FCO) and Dr Eirik Bjorge (Bristol) will be held on 27 March 2017. See here for more details and to book a place.

3. Call for Submission, UCL Journal of Law and Jurisprudence. The Editorial Board of the UCL Journal of Law and Jurisprudence is pleased to call for submissions for the second issue of 2017 on the theme of ‘Crisis and the Law’. The Editorial Board welcomes submissions that engage with this general theme. It is broadly conceived, covering a range of political, economic, social, environmental and cultural issues, and leaves scope for any area of law or jurisprudence (domestic, regional or international) that is deemed to be crisis-related. Submissions could be theoretical, doctrinal or aimed at practice. Concretely, the Journal seeks to publish pieces that either articulate the concept of crisis within the law or how the law deals with current crises. We accept articles of between 8,000-12,000 words, case notes of 6,000-8,000 words and book reviews of 1,000-2,000 words. All submissions must comply with OSCOLA. The deadline for submissions is 14th April 2017. Manuscripts must be uploaded via the submissions section.

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On Theory-Bashing: Why It Happens and What It (Probably) Says About Us

Published on March 17, 2017        Author: 

Introduction

This post is a response (of sorts) to an earlier post made last month by Andrea Bianchi, in which he discusses the widespread aversion and prejudice shared by most international lawyers against the idea of ‘theory’ and the disempowering effects this attitude has had on the contemporary discipline of international legal studies. Whether or not one agrees with the ‘most international lawyers’ part of the claim, the argument Professor Bianchi presents deserves attention and careful consideration. It raises a whole series of important points, not least about the fundamental naivety of the assumption that law as a craft requires no special theoretical awareness on the part of its practitioners. At the same time, however, it also leaves out a number of questions that in a context like this one would, ideally, expect to be given as much, if not more, critical attention.

In this post, I propose to explore some of these questions. The argument offered below is intended to complement and develop Professor Bianchi’s broader point, viz., that theory-bashing is a highly disconcerting tradition that has negative consequences not only for those international lawyers whose main field of work falls in the area of theoretical scholarship, but for the international legal profession as a whole.

Multiple meanings of ‘theory’

To begin with, let us note, firstly, that in modern academic practice the term ‘theory’ is typically used in three fundamentally different senses: Read the rest of this entry…

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Ukraine v Russia at the ICJ Hearings on Indication of Provisional Measures: Who Leads?

Published on March 16, 2017        Author: 

From the day Ukraine submitted its case against Russia at the ICJ, one could expect that the case would be extremely politicized and difficult to adjudicate. Oral proceedings on the request for provisional measures held on 6th -9th March 2017 not only demonstrated that parties disagreed on the major points of the dispute, but also revealed that both parties had adopted “alternative facts”, at times making it difficult to grasp if they actually had the same dispute in mind. Ukraine’s position is that Russia violates ICSFT by continuing to support pro-Russian separatist armed groups in eastern Ukraine that engage in the commission of terrorist acts against the civilian population. Ukraine also claims that Russia pursues “policies of cultural erasure and pervasive discrimination” against non-Russian ethnic population in Crimea (see my blog). In its counter-arguments, Russia submits that the supply of weaponry originated from the old Soviet stockpiles inherited by Ukraine as well as the retreating Ukrainian army. Although widespread reports on the human rights situation in Crimea indicate marginalization of non-Russian ethnic population, as do the hundreds of pending individual applications before the ECtHR, Russia maintains that it is fully compliant with CERD and that “the views [of international organizations] on the status of Crimea often prejudge the attitude towards the situation in Crimea itself”.

Oral proceedings provide valuable insights into Russia’s litigation strategy. Russia maintains that there is no factual or legal basis for the ICJ to adjudicate, claiming that the issues between Ukraine and Russia relate to the legality of the use of force, sovereignty, territorial integrity and self-determination and therefore go beyond the jurisdiction of the Court. Russia accused the Ukrainian government of using the Court “to stigmatize a substantial part of the Ukrainian population” in eastern Ukraine as terrorists, and Russia as a “sponsor of terrorism and persecutor”.

Prima facie jurisdiction

The ICJ has to be satisfied on a prima facie basis that its jurisdiction is well founded in order to indicate provisional measures. Read the rest of this entry…

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The ‘Command Responsibility’ Controversy in Colombia

Published on March 15, 2017        Author: 

The peace agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas has led to complex legal debates. One key controversy has stood out as legislation to carry out the agreement moved forward: the “command responsibility” definition the Special Jurisdiction for Peace —the judicial system created as part of the peace talks— will apply to try army and FARC commanders.

This is not just a technical issue. Applying a definition consistent with international law will play a key role in ensuring meaningful accountability for army and FARC commanders’ war crimes during their 52-year conflict. The issue has been part of a key debate in Colombia about how to hold officers accountable for so-called “false positive” killings.

Government forces are reported to have committed over 3,000 such killings between 2002 and 2008. In these situations, soldiers lured civilians, killed them, placed weapons on their bodies, and reported them as enemy combatants killed in action. At least 14 generals remain under investigation for these crimes.

Unfortunately, for now, this debate has been resolved in the wrong direction: on March 13, the Colombian Congress passed a constitutional reform containing a “command responsibility” definition for army officers that is inconsistent with international law. This post reviews the background and lead-up to this development.

Command Responsibility in the Original Peace Accord

The parties first announced an “agreement on the victims of the conflict” in December 2015. The agreement included “command responsibility” as a mode of liability for the Special Jurisdiction for Peace in two identical provisions, one applicable to army commanders and the other to the FARC:

Commanders’ responsibility for acts committed by their subordinates must be based on the effective control over the respective conduct, on the knowledge based on the information at their disposal before, during and after the commission of the respective conduct, as well as on the means at his reach to prevent it and, if it has already occurred, promote the relevant investigations (my translation).

Human Rights Watch, the organization where I work, expressed concern that the definition could be interpreted in a manner inconsistent with international law.

Mens rea. As Kai Ambos has recently noted, the mens rea requirement in the definition was unclear. Under international law, including article 28 of the Rome Statute, a commander’s knowledge of crimes committed by their subordinates may be either actual or constructive —that is the commander knew or had reason to know. The definition in the 2015 agreement did not explicitly include a reference to constructive knowledge. This raised questions as to whether it was meant to be included or not.

Read the rest of this entry…

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The Evacuation of Eastern Aleppo: Humanitarian Obligation or War Crime?

Published on March 14, 2017        Author: 

On March 1, the UN Independent International Commission of Inquiry on the Syrian Arab Republic (“the Commission”) released a report on the horrific events that unfolded in Aleppo last year until it was captured by the Syrian governmental forces. The Aleppo report covers acts which may amount to violations of international human rights law or international humanitarian law (IHL), committed by all warring parties between 21 July and 22 December 2016. The Commission, whose reports will be instrumental for ongoing and future efforts to hold perpetrators accountable, should be commended for collecting and analyzing such an impressive amount of information in so little time.

The Aleppo report contains an appalling catalogue of allegations of egregious violations, including attacks against civilian infrastructures, hospitals, a UN/SARC humanitarian convoy and the use of chemical weapons. One allegation in particular caught the attention of the media: the Commission argues that the evacuation of eastern Aleppo amounts to the war crime of forced displacement. The Commission’s claim may at first seem astonishing not only because it stands in stark contrast with the then prevailing narrative of a humanitarian evacuation designed to alleviate human suffering, but also because the evacuation was based on an agreement between the warring parties – which means that opposing parties would have jointly committed a war crime. This post examines, on the basis of publicly available information, the legal foundation of this serious allegation.

The evacuation agreement

The evacuation of the rebel-held parts of the eastern districts of Aleppo was agreed between the warring parties as part of a cease-fire deal brokered by Russia and Turkey on 15 December 2016. The fall of this key rebel stronghold marked a major victory for the government forces, but it also offered rebels a safe passage into other rebel-held areas elsewhere in Syria. By 22 December, more than 35,000 people had been evacuated from the besieged areas of Aleppo to Idlib province (for the most part) or to western Aleppo. Read the rest of this entry…

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The Strangest ICJ Case Got Even Stranger, Or the Revision That Wasn’t

Published on March 13, 2017        Author: 

As Dapo explains in his post from this morning, the President of the International Court of Justice last week sent what was probably one of the weirdest letters to a government (and one of the weirdest related press releases) in its history, and it is only appropriate that it pertains to one of the Court’s strangest cases. The Court essentially dismissed in limine an attempt to make an application to institute proceedings for the revision of the 2007 Bosnian Genocide judgment, finding that the application was not made by an authorized state representative.

In a 2008 article, the late Vojin Dimtrijevic and I wrote about the strange story of the Bosnian Genocide case, a case which was more than any other, from its very beginning, subservient to its political context. It was a case pursued by a changing applicant against a changing respondent before a changing Court. It was a case which one part of the applicant state actively tried to subvert, which all segments of the political elite constantly miscast and misinterpreted, which witnessed some truly unprecedented procedural manoeuvres, and which was indeed from the Bosnian side not even funded from the state budget. So many hopes were pinned on it, that when the ultimately completely predictable and underwhelming, jurisdictionally severely constrained judgment was handed down, it was perceived by most Bosniaks as a massive disappointment and by most Serbs as a kind of exoneration, despite the finding of a violation of Article 1 of the Genocide Convention by Serbia. Today, after the Court’s swift termination of the revision application and the lapse of the time-limits for any further application, the case has gone away with finality, if only with a whimper.

Over on Just Security, David Scheffer, the ranking international expert in the revision team appointed by the Bosniak leader, Mr Izetbegovic, purports to explain to an equally expert audience ‘some realities’ behind the revision request. In so doing, he calls the President’s letter and a previous letter by the Registrar ‘shallow exercises that fail to explain the legal reasoning of their conclusions,’ and concludes that ‘History will not look kindly on the ICJ’s decision to reject the Application for Revision.’

Oh, please; history, humbug. History really won’t care one whit about this whole episode, which after a few days even the Bosnian and Serbian media won’t be writing about. And while I myself normally wouldn’t write critical comments about cases which I litigated and lost, or engage in debates with people who conversely think that it is sensible to do so, this kind of self-righteous, pontificating pooh-poohing of the ICJ is something I feel compelled to respond to. Here are, to quote Mr Scheffer, some (very hard) realities about this whole episode.

Read the rest of this entry…

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