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The Charlie Gard Case: Behind the Hyperbole

Published on July 21, 2017        Author: 

This post is intended to be both a reply to Jakob Cornides’s post on the judgment of the European Court of Human Rights (‘ECtHR’) in the case of Charlie Gard and, relatedly, to provide clarification on several points raised in that post (and pervading content elsewhere) regarding the nature of the decisions confronting both the domestic courts and the ECtHR.

There is no need to repeat the facts underpinning Charlie’s case. They have been canvassed in considerable detail in the judgments of the English High Court and the European Court of Human Rights (ECtHR). It is incontrovertible that Charlie suffers from a life-threatening illness which, at this stage, requires that he be ventilated and receive artificial nutrition and hydration to survive. The available medical evidence (which Charlie’s parents dispute) indicates that he is not responsive to his surrounds. Despite declarations being made by the High Court to the effect that maintaining life-sustaining treatment is not in Charlie’s best interests nor is proposed experimental treatment, and those declarations being upheld on appeal to the UK Supreme Court, the matter persists with experts meeting this week to discuss the medical evidence.

It is beyond the scope of this post to address each of the aspects of the reasoning (and practice) of the domestic courts and the ECtHR which Mr Cornides’s post flags as being extremely problematic in the depth they deserve. Instead, I will respond to three specific issues raised by Mr Cornides, issues which together I consider reflect a wider misunderstanding of the domestic law which has been repeated by various media outlets, and which are central to the broader discussion regarding assisted dying in the United Kingdom (particularly within the context of the European Convention on Human Rights (‘ECHR’)). Those issues are: Read the rest of this entry…

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The Legality of the UK / Saudi Arabia Arms Trade: A Case Study

Published on July 20, 2017        Author:  and

On 10 July 2017 the UK High Court delivered its open judgment in a high-profile challenge to the UK arms exports to Saudi Arabia, brought by the Campaign Against Arms Trade. A separate closed judgment was delivered based on the confidential evidence. As readers will be aware, the case involves various domestic and international law considerations.

The primary question was whether the Secretary of State for International Trade (the Government) was legally obliged to suspend extant and cease granting new export licences to the Kingdom of Saudi Arabia. Such an obligation would stem from the requirement to deny such licences where there is “a clear risk that the arms might be used in the commission of a serious violation of International Humanitarian Law”.

This condition is contained in Criterion 2 of the Common Rules Governing the Control of Exports of Military Technology and Equipment (European Council Common Position 2008/944/CFSP, December 2008). The Government adopted much of the Common Position as Guidance under s.9 of the Export Control Act 2002 and it accordingly represents the policy that will be applied when considering the grant of export licences. The Consolidated Criteria are thus intended to ensure the UK’s compliance with the UN Arms Trade Treaty (ATT), and the text of Criterion 2 links to its Article 7.

This blog post sets out initial thoughts on the open judgment, specifically focusing on its approach to ‘serious violation’ and ‘clear risk’, before examining the deference granted to the executive and its implications for the fulfilment of the ATT’s overarching purpose. Ultimately unsuccessful, the claim underscores the narrow ambit of judicial review and the unwillingness of UK courts to become embroiled in the merits of certain government action. Read the rest of this entry…

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An Appraisal of the Council of Europe’s Draft European Rules on the Conditions of Administrative Detention of Migrants

Published on July 19, 2017        Author: 

In the last decade, a growing momentum has developed to end immigration detention. This momentum has two dimensions. First, that certain migrants, such as children, should never be detained as they are in a situation of particular vulnerability. Second, that even if a migrant is not deemed to be in a situation of ‘particular vulnerability’, alternatives to detention should be preferred and detention only used as a last resort when lawful, for a legitimate purpose, necessary and proportionate. The exceptionality of immigration detention is rooted in the recognition of the harmful physical and psychological effects of the administrative detention of persons who are not accused of a crime. The adverse impact of detention is magnified when accompanied by uncertainty about when the detention might end as well as the risk of ill-treatment, discrimination and poor detention conditions.

In addition to the work of NGOs such as the International Detention Coalition, international organisations have called on states to develop alternatives to immigration detention with some producing action plans to end immigration detention. Read the rest of this entry…

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Brexit and fisheries access – Some reflections on the UK’s denunciation of the 1964 London Fisheries Convention

Published on July 18, 2017        Author: 

Background

On 2 July 2017 the government of the United Kingdom announced its intention to withdraw from the 1964 London Fisheries Convention (LFC). Plans to reshape the UK’s fisheries policy, including a 2017 Fisheries Bill, had already featured in the Queen’s speech on 21 June 2017. The Common Fisheries Policy (CFP) of the European Union has been unpopular with the UK’s fishing industry – and has been widely perceived as one where the UK may have more to gain than to lose by leaving the EU. The UK’s announcement has triggered mixed reactions. Michel Barnier, the EU’s Brexit negotiator, tweeted that it made no difference for the negotiations. Not all EU Member States are, however, fond of the prospect that the UK might use reciprocal fisheries access as leverage in the Brexit negotiations or –in the worst case scenario– close its waters to foreign fishing. Denmark has reportedly built a case against the UK based on “historic fishing rights” dating back to the 1400s, which it claims it could bring before the International Court of Justice (ICJ) if negotiations fail. This post takes a closer look at the implications of the UK’s denunciation of the LFC for Brexit and the question of historic fishing rights.

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Filed under: EJIL Analysis, Law of the Sea
 
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Arbitration Agreement is no Waiver of State Immunity from Jurisdiction for the Purposes of Recognition and Enforcement – Comment on Commercial Court of Moscow’s decision in Tatneft v Ukraine

Published on July 17, 2017        Author: 

In April 2017, the Russia-based PJSC Tatneft initiated against Ukraine the process of recognition and enforcement in Russia of an arbitral award issued in the PCA investment arbitration OAO Tatneft v Ukraine under the UNCITRAL Rules and the Russia-Ukraine BIT. This June, the Commercial Court for the City of Moscow (the court of first instance, hereinafter – “the Court” or “the Russian Court”) dismissed Tatneft’s recognition and enforcement application, inter alia, sustaining Ukraine’s plea of immunity from jurisdiction [see А40-67511/2017 (in Russian)]. This post comments on the part of the Court’s judgment concerning Ukraine’s immunity from jurisdiction.

The Positions of the Parties and the Judgment

Insofar as it is possible to ascertain the crux of the parties’ submissions from the text of the judgment, Ukraine raised two objections to jurisdiction. The first objection was based on Ukraine’s immunity from jurisdiction in the recognition and enforcement proceedings, and the second on the Russian courts’ lack of effective jurisdiction to try the claim due to the absence of Ukraine’s commercial assets in the territory of Russia. This note will concern itself only with the first of the two objections. Read the rest of this entry…

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Forcible “euthanasia”: the ECtHR´s Charlie Gard Decision

Published on July 14, 2017        Author: 

When – first in the Netherlands, and later in other countries such as Belgium and Luxembourg – laws were adopted to legalize euthanasia, the selling argument was that this was a decisive step forward in order to ensure everyone’s self-determination. The ECtHR’s recent decision in the case of Gard and Others v. the United Kingdom reveals quite a different reality.

The decision is lengthy and contains a lot of medical terminology, but the underlying facts are simple: a child suffers from a medical condition that the treating doctors qualify as terminal, and for which no recognized treatment exists. Not only for argument’s sake, but also because we really have no reason to believe otherwise, let us assume that that assessment is correct and has been made by experts lege artis. Yet the child’s parents place their desperate last hope in an experimental treatment, which has so far never been tested on human beings (and, to believe what is noted in the ECtHR Decision, not even on animals). That treatment would have to be carried out, either in the UK or the US, by a leading researcher and expert on this kind of therapy, who has declared his willingness to administer it even though he qualifies the chances of success as “theoretical” and, on another occasion, as “unlikely”.

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Creating International Frameworks for Data Protection: The ICRC/Brussels Privacy Hub Handbook on Data Protection in Humanitarian Action

Published on July 13, 2017        Author:  and

Introduction

The collection and processing of personally-identifiable data is central to the work of both international organisations working in the humanitarian sector (IHOs) and non-governmental organisations (NGOs) in protecting and delivering essential aid to hundreds of millions of vulnerable individuals. With the increased adoption of new technologies in recent years, and the increased complexity of data flows and the growth in the number of stakeholders involved in the processing, there has been an increasing need for data protection guidelines that IHOs and NGOs can apply in their work. This was highlighted first in the 2013 report by Privacy International entitled: “Aiding Surveillance”, and was also recognised by the International Conference of Privacy and Data Protection Commissioners in its Resolution on Privacy and International Humanitarian Action adopted in Amsterdam in 2015 (Amsterdam Resolution).

This need has led to publication of the new Handbook on Data Protection in Humanitarian Action prepared jointly by the Data Protection Office of the International Committee of the Red Cross (ICRC) and the Brussels Privacy Hub, a research institute of the Vrije Universiteit Brussel (VUB) in Brussels. It has been drafted in consultation with stakeholders from the global data protection and international humanitarian communities, including IHOs and humanitarian practitioners, data protection authorities, academics, NGOs, and experts on relevant topics. The drafting committee for the Handbook also included the Swiss Data Protection Authority; the Office of the European Data Protection Supervisor (EDPS); the French-speaking Association of Data Protection Authorities (AFAPDP); the UN High Commissioner for Refugees (UNHCR); the International Organisation for Migration (IOM); and the International Federation of Red Cross and Red Crescent Societies (IFRC).

Content of the Handbook

The Handbook addresses questions of common concern in the application of data protection in international humanitarian action, and is addressed to staff of IHOs and NGOs who are involved in the processing of personal data, particularly those in charge of advising on and applying data protection standards. It is hoped that it may also prove useful to other parties, such as data protection authorities, private companies, and others involved in international humanitarian action. Read the rest of this entry…

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Rising Legal Costs Claimed by States in Investor-State Arbitrations: The Test of ‘Reasonableness’ in Philip Morris v. Australia

Published on July 12, 2017        Author: 

The Final Award Regarding Costs in Philip Morris v. Australia recently became public this July 2017 (although dated as of 8 March 2017), in (somewhat surprisingly) redacted form, signed by arbitrators Professor Karl Heinz-Bockstiegel (President), Professor Gabrielle Kaufmann-Kohler (Co-Arbitrator) and Professor Donald Mc Rae (Co-Arbitrator). Reasons were not given for the redaction of virtually all monetary amounts from the Final Award Regarding Costs, and the actual numerical figure of costs awarded to Australia was likewise redacted.  The Financial Times reported, however, that legal costs and fees that Australia claimed against Philip Morris will likely run to AUD $50 Million, or approximately USD $37 Million. For sure, according to the redacted Final Award, the figure that Australia claimed as legal costs and fees incurred defending against Philip Morris is much higher than the maximum legal fees and costs that have been claimed by the United States (USD $3 Million) and Canada (USD $4.5 Million) (Final Award Regarding Costs, para. 74.).

Assuming that the reported USD$37 Million/AUD$50 Million claim of Australia for legal costs and fees is correct, these would amount to almost 1% of Philip Morris’ USD $4.2 Billion claim against Australia, quite in contrast to around 1/10 of 1% of legal fees that Russia was ordered to pay (around USD$60 Million in legal fees) in the famous US$50 Billion Yukos arbitration.  Clearly, the alleged Australian US$37 Million claim for legal fees and costs against Philip Morris would be a staggering outlier against a trend observed in the last five years of ICSID arbitrations, where: “a study of ICSID arbitrations concluded between FY2011 and FY2015 reveals that costs incurred, on average, by claimants were US$5,619,261.74, and US$4,954,461.27 by respondents.”  This post examines the Philip Morris v. Australia tribunal’s reasoning on legal costs and fees to identify variables and considerations deemed relevant by the tribunal in reaching its conclusion awarding full costs to Australia (with the caveat that the exact figures of the costs are redacted from the Final Award).  After all, rising legal costs and fees should be a concern for largely self-regulated international lawyers, whose duties of professionalism include “avoiding unnecessary expense or delay” (The Hague Principles on Ethical Standards for Counsel Appearing before International Courts and Tribunals, Principle 2.3).   Read the rest of this entry…

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The NotPetya Cyber Operation as a Case Study of International Law

Published on July 11, 2017        Author:  and

The recent “NotPetya” cyber-operation illustrates the complexity of applying international law to factually ambiguous cyber scenarios. Manifestations of NotPetya began to surface on 27 June when a major Ukrainian bank reported a sustained operation against its network. The Ukrainian Minister of Infrastructure soon announced ‘an ongoing and massive attack everywhere’.  By the following day, NotPetya’s impact was global, affecting, inter alia, government agencies, shipping companies, power providers, and healthcare providers. However, there are no reports of NotPetya causing deaths or injuries.

Cybersecurity experts have concluded that despite being initially characterized as a ransomware attack similar to WannaCry and Petya, NotPetya was directed at specific systems with a purpose of ‘causing economic losses, sowing chaos, or perhaps testing attack capabilities or showing own power’. Additionally, most agree that Ukraine was the target of the operation, which bled over into other States. The key question, however, is the identity of the attacker. NATO Cooperative Cyber Defence Centre of Excellence experts have opined that ‘NotPetya was probably launched by a state actor or a non-state actor with support or approval from a state.’

Although the facts are less than definitively established, the EJIL: Talk! editors have asked us to analyse the incident on the assumption that it is factually and legally attributable to a State.  We begin with a peacetime international law survey and conclude with an international humanitarian law (IHL) analysis. Read the rest of this entry…

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Composition of the Bench in ICJ Advisory Proceedings: Implications for the Chagos Islands case.

Published on July 10, 2017        Author:  and

In our previous post we discussed the prospects of the International Court of Justice giving an Advisory Opinion, as requested by the UN General Assembly, on the matter of the separation of the Chagos Archipelago from the territory of Mauritius that was granted independence from the UK in 1968. We focused on whether the ICJ would be likely to refuse to render an Advisory Opinion because the request might be seen as seeking to circumvent the principle of consent. We explained how the ICJ has reinterpreted the principle of consent as it applies to advisory opinions and how the Court has stressed that as an organ of the UN it would not ordinarily refuse a request for an advisory opinion which the requesting organ deems of assistance for the proper exercise of its functions. In deciding whether to give the opinion, the Court will have to consider whether the proceedings relate to a purely bilateral dispute between two states.

Against this background, it is worth considering what the bench will look like if those proceedings touch on a legal question actually pending between two states. At least two questions arise here. First, may judges who have been involved in the related legal disputes between Mauritius and the UK sit in the advisory opinion? Second, may a state that is involved in a dispute that is related to the question put to the Court appoint a Judge ad hoc to the Bench? The first question arises because two of the current Judges of the Court took part, between 2010 and 2015, in an international arbitration under Annex VII of the UN Convention of the Law of the Sea brought by Mauritius against the UK regarding the Chagos Archipelago (Chagos Marine Protected Area Arbitration). Judge Greenwood was appointed to the Tribunal by the UK (and was indeed challenged by Mauritius, see the Reasoned Decision on Challenge (2011)), while Judge Crawford was, before his election to the ICJ, Counsel for Mauritius in that case. Read the rest of this entry…

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