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UK Supreme Court Decides R (Smith) v SSD

Published on June 30, 2010        Author: 

Today the UK Supreme Court decided R (Smith) v Secretary of State for Defence [2010] UKSC 29 (press summary), yet another fascinating addition to the unfolding saga on the extraterritorial application of human rights treaties.

The plaintiff was the mother of a UK soldier stationed in Iraq who died there from a severe heatstroke. She demanded an inquiry into her son’s death that would be compliant with Article 2 ECHR, that would be able to expose what in her view were systemic faults in the UK’s provision of equipment and facilities to its soldiers in Iraq which ultimately led to her son’s death. In other words, the case is a mirror-image of Al-Skeini, which also dealt with Art. 2 procedural obligations in Iraq, but that time with respect to inquiries into the deaths of Iraqi nationals at the hands of UK troops. As the readers are aware, the Grand Chamber of the European Court held hearings in Al-Skeini just a few weeks ago (see my old post for more background).

With regard to extraterritoriality, the issue before the Supreme Court in Smith was this: does a UK soldier in Iraq enjoy the protection of the ECHR while stationed in an area not under the UK’s effective control? Incidentally, on the facts of the case, Private Smith actually died on a UK military base. Per the UK government’s concession in Al-Skeini, the House of Lords’ quite dubious analogy between a military prison or base and an embassy, and the European Court’s recent admissibility decision in Al-Saadoon, that fact alone would have brought Private Smith within the UK’s jurisdiction. Readers will recall that in Al-Saadoon the European Court brought the spatial model of Art. 1 jurisdiction as state effective overall control of a geographical area to its extreme, but saying that a military prison or base qualified as an ‘area’ susceptible to such jurisdiction and control.

In other words, under the spatial model Private Smith would have been within the UK’s jurisdiction, and therefore entitled to protection under Art. 2 ECHR. However, issue was raised in the lower courts as to whether he would have been within the UK’s jurisdiction even if he did NOT die on the base, but in essentially the same circumstances. Like the lower courts, therefore, the Supreme Court was now faced with a set of questions in a quasi-advisory posture – something that several judges openly lamented. The Court nonetheless decided to rule on the matter, because it is one of great practical relevance of UK military operations abroad; Private Smith is obviously not the only UK soldier to have died in Iraq or Afghanistan, and many soldiers lost their lives outside areas under UK effective control.

The lower courts applied to Private Smith a variant of the personal model of Art. 1 jurisdiction, as state authority and control over individuals, finding that he indeed fell within the scope of Art. 1. In their view, simply by virtue of being a part of the UK military, Private Smith was within the UK’s authority and control, and accordingly within its jurisdiction.

Today the Supreme Court disagreed. By a majority of 6 to 3 (Lady Hale and Lords Mance and Kerr dissenting), the justices found that mere membership in the armed forces was insufficient to establish a jurisdictional link for the purposes of Art. 1 ECHR.

Read the rest of this entry…


EJIL Editorial Vol. 21:2 “In this Issue”; “Book Reviewing and Academic Freedom”; “The Last Page

Published on June 30, 2010        Author: 

Four very different articles flesh out this second issue of our 21st volume. First is an article by Christopher Macleod on Crimes against Humanity. The Editors believe that our readers will enjoy this valuable philosophical account of the subject. Next is a detailed article by Marco Dani entitled, ‘Remedying European Legal Pluralism: The FIAMM and Fedon Litigation and the Judicial Protection of International Trade Bystanders’. Our third article by Monica Hakimi, ‘State Bystander Responsibility’, provides a fresh take on a much-discussed topic – offering a new generalized framework for conceptualizing the responsibilities of states for protecting persons from third party abuses. We have published several articles on this theme and will continue to do so for some time. It reflects our belief that we are in the midst of an important shift in the concept of State Responsibility. A shift from from primarily negative to positive obligations, from State Responsibility to the Responsibility of States. Neither state practice, nor the theoretical and conceptual contours of this shift have been sorted out. But EJIL is one place where the ‘basic science’ is taking shape. Hakimi’s paper suggests, inter alia, an important analogy between state bystander responsibility and our expectation that states respond to gender-based private acts of violence, an analogy we consider pertinent and illuminating. Last, we have an article by Santiago Villalpando which tackles the ever-important question of how we might conceive of an ‘international community’ and its status under international law.

International governance is another of our commitments rooted in the belief that it provides a more potent tool both analytically to understand and normatively to critique a host of international phenomena. Under this iteration of our occasional series, Critical Review of International Governance, we include pieces by colleagues in Ethiopia, China and Malaysia. First is a piece by Dereje Zeleke Mekonnen on the Nile Basin Cooperative Framework Agreement negotiations and the adoption of a ‘Water Security’ paradigm. Second is an article by Kong Lingjie on data protection and transborder data flow in the European and global context. Last, we have a piece by Gurdial Singh Nijar entitled, ‘Incorporating Traditional Knowledge in an International Regime on Access to Genetic Resources and Benefit Sharing: Problems and Prospects’. We expect that you will find each piece both unique and also valuable to broader discussions on international governance.

Book Reviewing and Academic Freedom

My deep thanks for the hundreds of letters of support and indignation. All letters of support, including the many we received from editors of learned journals, have been translated into French and will be submitted to the Court. The Trial takes place on 25 June. I will report to our readers here on this blog.

Editor’s note: The hearing of the case has been postponed, for technical reasons, to January 20, 2011.

The Last Page

In ‘The Last Page’, EJIL’s reminder that there is more to life than law, you will find a poem by Jake Marmer, entitled ‘When an Immigrant’.

Filed under: Editorials, EJIL, Journals

EJIL Editorial Vol. 21:2 – Individuals and Rights – The Sour Grapes

Published on June 30, 2010        Author: 

The first wave, in the 1950s and ‘60s, was all about Community Rights and that new legal order. In the 1970s and ‘80s it was, ex nihilo, Individual Human Rights. And in the 1990s and this last decade it has been Citizenship Rights, destined, according to the European Court of Justice in case after case, to become the ‘fundamental’ status of European Citizens. (Have you ever wondered, as I have, about the epistemic status of this most recent mantra of the ECJ? Is it a legal realist prediction? A political desideratum? A statement of judicial intent? A revolutionary manifesto – seeing that it flatly contradicts the express provisions of the Treaty which clearly assigns to European Citizenship a mere supplementary or complementary supportive role in the Citizenship arena?) Be that as it may, there can be little argument that The Individual and his or her Rights are the most common, oft cited, self-celebratory clichés in the vocabulary of European legal discourse. In celebrating the Union’s 50th birthday Angela Merkel, speaking for most of us, veritably gushed about Europe’s success in positioning The Individual in the centre of its construct. And so it has. Likewise, if we look for a currency which is impervious to all market vicissitudes, to derivatives, to toxic bundling, it is the currency of Rights – in all three denominations, European, Human and/or Citizenship. It is the ever ready dividend which the Union’s Board of Directors is generous in showering on an ever apathetic citizenry (as evidenced by the demoralizing decline in voter turn out for Euro-Parliament elections) and which is evoked whenever a pep-talk is called for.

Given history, it is not surprising why, say, Germany (the initiator of the Charter), German Institutions (e.g. the Constitutional Court of ‘So long as’ rhetorical fame) and Germans (viz. Merkel who has a double reason) are so fond of Rightspeak, whereas, say, the British are more pragmatic and matter-of-fact on the issue. And whilst it is important to remain ever vigilant blah blah blah, the truth is that in Europe The Individual does not suffer from a deficit of rights protection – certainly not of human rights protection. The never-ending rhetoric is all too often a mask for a veritable political deficit of individual empowerment in European democracy. Rights and Circus may be the apposite motto for the Turn-of-Millennium Europe: smother them with rights – which they don’t exactly need – and keep them quiet.

The principal positive effect of the combination of Rights and The Individual in the European legal order has not been the defence of the individual against some Barbarians intent on abusing his or her human rights. It has, instead, been that unprecedented strengthening of the Rule of Law among the Member States, a signal achievement worthy of celebration. Read the rest of this entry…

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Blood Diamonds: Supermodel Naomi Campbell may be compelled to Testify at the Special Court for Sierra Leone. (Updated)

Published on June 29, 2010        Author: 

Sylvia Ngane is a doctoral candidate and Graduate Teaching Assistant at the School of Law, University of Leeds, UK. Her article “Witnesses Before the International Criminal Court” is published in (2009) 8 Law and Practice of International Courts and Tribunals 431-457.

Editor’s Note: In a decision issued on the same day this piece was posted, the Special Court for Sierra Leone upheld the Prosecution’s request and directed the Prosecutor to call Naomi Campbell as a witness.

In May of this year, the trial of Charles Taylor at the Special Court for Sierra Leone (SCSL) took a dramatic twist, when prosecutors requested the judges, to issue a subpoena to supermodel Naomi Campbell requiring her appearance before the Chambers. On the same day, the SCSL Prosecutors made an application that they be allowed to reopen their case, which was closed in February 2009, or bring evidence in rebuttal against Taylor by calling three additional witnesses, Campbell, Carole White and Mia Farrow. Campbell is required to testify as a witness about a diamond gift she allegedly received from Taylor in South Africa in 1997. Rule 54 of the SCSL Rules of Procedure and Evidence which is the applicable statutory provision for granting subpoenas, provides that: ‘At the request of either party or of its own motion, a judge or a Trial Chamber may issue such orders, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial’

The judges will grant a subpoena if it is ‘necessary’ to bring to court an unwilling but important witness. In the Taylor case, the Prosecution submits that Campbell’s testimony is necessary as it concerns a central issue in the case, the Accused possession of rough diamonds. They argue that her evidence is highly probative and material to the Indictment since it is direct evidence of the Accused’s possession of rough diamonds from a witness unrelated to the Liberian or Sierra Leone conflicts. According to the Prosecution, this corroborates Prosecution evidence that the Accused received diamonds from the Armed Forces Revolutionary Council (AFRC), the military junta, which in partnership with Revolutionary United Front (RUF) rebels,  ruled Sierra Leone in 1997 during the Indictment period. In addition, Campbell’s anticipated evidence supports the Prosecution allegations that the Accused used rough diamonds for personal enrichment and arms purchases for Sierra Leone, particularly during the AFRC/RUF period. Read the rest of this entry…

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EJIL Article by Thomas Schultz on Regulation of the Internet wins Prize

Published on June 28, 2010        Author: 

An article published in the 2008 volume (Issue 4) of the European Journal of International Law by Thomas Schultz has been awarded the 2010 Jubilee Prize of the Swiss Academy of Humanities and the Social Sciences (see here as well). The Jubilee Prize is awarded each year to the best article, across the humanities and social sciences, published by a young swiss researcher. The prize winning article is titled “Carving up the Internet: Jurisdiction, Legal Orders, and the Private/Public International Law Interface”. In the article Thomas Schulz argues that:

The Internet is caught between old forces of local territorialism and new forces characteristic of global economies. As a result, this article maintains that it may end up being carved or fragmented into discrete legal spheres. This development contradicts with the hitherto traditional vision of the Internet as a paradigmatic example of a borderless world of global transnationalism. This fragmentation is taking two forms: one vertical which reflects concerns of public policy and the protection of local values, the other horizontal which is driven by the rationale of commercial efficiency. The former (vertical), if not understood and handled properly, may lead to an informational impoverishment of the Internet. One response to this risk resides in new configurations of the appropriate jurisdictional bases for assertions of state power. I argue in favour of a double standard of jurisdiction for the regulation of Internet content: one, based on the principle of targeting, used to sanction behaviour, the other, an incarnation of the effects doctrine, used to prevent actions and fulfil the cathartic function of law. The latter (horizontal) form of fragmentation should lead us to rethink certain aspects of the concept of law, in particular with regard to legal pluralism, and to discover new places where law is to be found.

Our congratulations to Thomas Shultz who is currently Senior Lecturer and Researcher at the Department of Private International Law, Faculty of Law, Univeristy of Geneva. He is also the Executive Director of the Geneva Masters in International Dispute Settlement, organized jointly by the Graduate Institute of International and Development Studies and Development and the University of Geneva.

Filed under: EJIL, EJIL Analysis
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Anti-Piracy Court Opens in Kenya

Published on June 28, 2010        Author: 

At the end of last week, Kenya opened a special court to try suspected pirates operating from Somalia in the Gulf of Aden (see BBC Report here and here) The Court, which is funded by a number of international organizations and States including the UN, the EU, Australia and Canada, is a significant step in the fight against piracy. All States have universal jurisdiction under customary international law and the UN Convention on the Law of the Sea to prosecute captured pirates but as Douglas Guilfoyle explained in a post here on EJIL:Talk! last year there are a number of practical and legal difficulties with capturing, detaining and prosecuting suspected pirates. He stated that:

 One of the problems with the current attempt to combat piracy is that though, as a matter of international law, all States have jurisdiction to try pirates, few States have adequate national laws for the prosecution of pirates who have not committed offences against either their nationals or flag vessels. This has lead to some startling results, such as the German navy releasing some captured pirates on the basis that they had no authority to detain them.

Attempts have been made to solve this problem since the incidence of piracy in the Gulf of Aden has continued to rise. The Kenyan court is a national court exercising universal jurisdiction on behalf of the international community. It appears that this court will constitute the focal point for the prosecution of piracy since Kenya already has more than 100 suspected pirates in detention. Read the rest of this entry…


No Right to Same-Sex Marriage under the ECHR

Published on June 24, 2010        Author: 

Today a Chamber of the European Court of Human Rights delivered its judgment in Schalk and Kopf v. Austria, no. 30141/04. The applicants alleged a violation of Art. 12, and Art. 8 combined with Art. 14, on the basis that Austrian law did not allow them, as a same-sex couple, to contract marriage. Notably, the applicants did not just claim that Austria denied them some specific legal rights and privileges of a married couple, by refusing to recognize their relationship at all – something that the European Court has regarded as discriminatory since its 2003 judgment in Karner v. Austria, and unjustifiable merely for the sake of protecting an abstract notion of the traditional family. Rather, their claim focused solely on their inability to enter into marriage as such. In other words, they argued that the definition of marriage as a union of a man and a woman was as such discriminatory. (For more background, see this excellent post by Tobias Thienel on the oral hearings in the case).The Chamber rejected the applicants’ arguments.

The applicants first based their claim on Art. 12, arguing that the Court should interpret it in an evolving manner so as to now require the legal recognition of same-sex marriage (see here for more on evolutionary interpretation). The Court refused to do so, finding that (at least for the time being) the matter was left to the margin of appreciation of contracting states (paras. 54-64):

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Two Women Nominated to Replace Retiring US and Chinese Judges on the International Court of Justice (Updated)

Published on June 22, 2010        Author: 

Update: On June 29, the U.N. General Assembly and Security Council  elected Xue Hanqin of China to  the International Court of Justice. She will complete the term of Judge Shi Juiyong (see also Julian Ku’s post at Opinio Juris)

The International Court of Justice (ICJ) has announed in recent weeks that Judges Shi Juiyong and Thomas Buergenthal will be retiring from the Court (see here and here). Judge Shi is a Chinese national and Judge Buergenthal is from the US. The elections for their replacements will take place later on in the summer. However, because there is a tradition that there is always a national of each of the permanent members of the UN Security Council on the ICJ, it is a foregone conclusion that the persons nominated by the US and the Chinese will be elected. Apparently, and significantly, both of these countries will be nominating women to replace the retiring judges. The US will be nominating (see here) Joan Donoghue (left) who is currently Principal Deputy Legal Adviser at the US State Department (for her profile and list of publications see here and here). It has been reported that China will nominate Xue Hanqin (right) who is Legal Adviser to the Chinese Foreign Ministry and is a member of the International Law Commission (for her CV see here at p.210).

 It ought not to be a matter for report that both nominees are female. However, in the context of the ICJ this is significant and, of course, is a very welcome development. It is quite embarrasing that the ICJ has only ever had one female permanent judge! This was Dame Rosalyn Higgins who was on the Court from 1995 to 2009,  and was President of the Court from 2006 to 2009. Read the rest of this entry…


What Exactly was Agreed in Kampala on the Crime of Aggression?

Published on June 21, 2010        Author: 

The ICC review conference held in Kampala earlier this month decided, by consensus, to amend the ICC Statute so that the ICC can exercise jurisdiction over the crime of aggression once the amendments come into force. The final text of the amendments to the ICC Statute on the Crime of  aggression are now available on the ICC website (see here). However, there seems to be some (significant) confusion as to what exactly was agreed on the crime  of aggression in Kampala. There is also room for argument as to whether some of the decisions made in Kampala will be legally effective, in other words it is possible that they will not have the legal effect the drafters sought to achieve. This post will examine briefly set out what was agreed and highlight those areas where there is significant ambiguity surrounding the agreement. In particular I want to discuss issues surrounding the definition of aggression, when the aggression amendments will become operational and most importantly who will be bound by the amendments.

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Arise Sir Daniel!!

Published on June 18, 2010        Author: 

Daniel Bethlehem, the Legal Adviser at the UK’s Foreign and Commonwealth Office has recently been Knighted by Her Majesty the Queen and is now Sir Daniel Bethlehem QC. Sir Daniel has been Legal Adviser (i.e the most senior lawyer) at the Foreign Office since 2006. In 2008, he was named by the London Times as one of the top 100 lawywers in the UK (see here).  Before taking up the position at the Foreign Office he had a distinguished career as an academic and a practicising international lawyer. He was a Lecturer in International Law at the London School of Economics and then proceeded to Cambridge where he was first Deputy Director and then Director of the Lauterpacht Centre for International Law.  In his academic life he wrote on a broad range of topics especially on the law of the United Nations, international economic law and the relationship between European and international law. Throughout this time he practised as a barrister from 20 Essex Street, London and had a remarkably broad international practice. He has appeared as counsel and advocate in several  important cases before the International Court of Justice, the International Tribunal for the Law of the Sea, he European Court of Justice, the European Court of Human Rights, the WTO and NAFTA panels, several international arbitral tribunals, as well as in the UK domestic courts. Unfortunately, it is now remarkably rare for international lawyers to have such broad expertise. I should say that I was privileged to be his student. I am also grateful to him and to Dame Rosalyn Higgins (who was also at the LSE) for giving me my first opporntunity to teach and for the wonderful opportunity to work with them on their academic work and on cases they were involved in. I learnt so much in those years.

Sir Daniel’s knighthood was announced in the Queen’s birthday honours list earlier this week. Readers may be interested to know that such honours are conferred in the UK every New Year and on the Queen’s birthday. Actually, the Queen’s birthday refers to her official birthday celebrated in mid June (as opposed to her date of birth – April 21) because the weather is supposed to be nicer at this time of year.

Presumably Daniel will be heading off to Buckingham Palace soon where the Queen will tap him on the shoulders with her sword and say “Arise Sir Daniel”.

Filed under: EJIL, EJIL Analysis