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60 Years since the First European Community – Reflections on Political Messianism

Published on June 30, 2011        Author: 


The European construct has played a decisive role in the history of the last 60 years. It has created the framework for post-war reconstruction and has ingeniously provided the inspiration and mechanisms for a historical reconciliation between nations which hitherto had gone to war with each other – the horrors of which surpass even the worst of today’s excesses –  in every generation for the previous two centuries.  This cannot but give inspiration and a sliver of hope in the face of our own intractable conflicts. The European Coal and Steel Community, the 60th Anniversary of which we mark this year, incorporated the Schuman Declaration and combined peace and prosperity in its blueprint, whereby peace was to breed prosperity and prosperity was to consolidate peace. It has all worked out splendidly – revisionist history notwithstanding. Europe has also been a catalyst (not more) – at times the ‘prize’ – for the achievement and subsequent consolidation of democracy, first in Greece, Spain and Portugal, and later across Eastern Europe.

It is against this most consequential background that we must assess the current circumstance of Europe. It is at a nadir which one cannot remember for many decades and which, various brave or pompous or self-serving statements notwithstanding, the Treaty of Lisbon is not about to redress.

Let me mention what in my view are the three most pressing and profound manifestations of the current weakness, some would say crisis, of  Europe.

1.  Democracy, or rather the partial absence of which, continues to beset the Europe of 27. The manifestations of the so-called Democracy Deficit are persistent and no endless repetition of the powers of the European Parliament will remove them. In essence it is the inability of the Union to develop structures and processes which adequately replicate at the Union level even the imperfect habits of governmental control, parliamentary accountability and administrative responsibility that are practised with different modalities in the various Member States. Even the basic condition of Representative Democracy that at election time the citizens ‘…can throw the scoundrels out’  – that is, replace the Government – does not operate in Europe. Read the rest of this entry…

Filed under: Editorials, European Union
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Uses of Force against Civil Aircraft

Published on June 28, 2011        Author: 

Dr Kimberley N. Trapp is lecturer in law at Newnham College, University of Cambridge.

On 18 June, South Korean marines (stationed on Gyodong Island, to the west of South Korea) fired 99 rifle rounds at an Asiana flight en route from Chengdu (China) to Seoul International Airport (BBC report).  Asiana aircraft are registered to South Korea, but the flight was mistaken for a North Korean military aircraft as the marines apparently believed the plane was flying north of the normal civil aviation corridor. Mercifully, the Asiana flight was out of rifle range and sustained no damage, landing safely – blissfully ignorant of the threat it had faced.

While it is relatively uncommon for civilian aircraft to be the object of direct attack by military forces – it does happen (particularly where tensions are running high as on the Korean peninsula) – and raises some interesting questions as to the applicable legal regime.  This post will use the Korean incident as a starting point for its analysis – exploring some of the issues that might have arisen had the use of force been more serious than it (very happily) was.

There are three legal regimes that might be implicated in assessing the lawfulness of a use of force against civilian aircraft: the jus ad bellum; the Convention on International Civil Aviation (the ‘Chicago Convention’) and the Convention for the Suppression of Unlawful Acts against the safety of Civil Aviation (the ‘Montreal Convention’) – each of which will be addressed in turn.

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ICC Pre-Trial Chamber Issues Arrest Warrant for Gaddafi (and 2 others)

Published on June 28, 2011        Author: 

On Monday, the International Criminal Court’s Pre-Trial Chamber I issued a decision acceding to the ICC Prosecutor’s request for an arrest warrant for Libyan leader Muammur Gaddafi, his son Saif Al Islam Gaddafi and head of the Libyan military intelligence Abdullah Al Sanusi (see previous post on the request). The situation in Libya was referred to the ICC by the UN Security Council under Security Council resolution 1970. The three persons who were the  subject of this request were alleged by the Prosecutor to be responsible for crimes against humanity within the jurisdiction of the ICC Statute. As was widely expected, the Pre-Trial Chamber has issued warrants of arrest for all 3 accused persons. In its decision, which was based on Article 58 of the ICC Statute, the Chamber found that there are “reasonable grounds to believe” that all three are responsible for murder and persecution as crimes against humanity under Articles 7(1)(a) & 7(1)(h) of the Statute. Contrary to the request of the Prosecutor that the request for surrender should be directed solely to Libya, the Chamber decided that the request for surrender should be addressed to

“to the competent Libyan authorities in accordance with rule 176(2) of the Rules and to (i) all States Parties to the Statute; (ii) all of Libya’s neighboring States; and to (iii) the United Nations Security Council members that are not States Parties to the Statute;”

One pleasing point to note is that the Pre-Trial Chamber has dealt with this request pretty quickly. The Prosecutor’s request was made on May 16 (see previous post) and a decision has been made within 6 weeks. This contrasts very favourably with the 8 months that it took for the ICC to make an initial decision on the arrest warrant for Sudanese President Omar Al Bashir. Given that these proceedings are ex parte (i.e without defence representation) and the Chamber appears to rely almost exclusively on material submitted by the Prosecution there is no reason for a delay in the decision.

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Tunisia Becomes a Party to the International Criminal Court Statute

Published on June 27, 2011        Author: 

Tunisia has become the 116th State to become a party to the Rome Statute of the International Criminal Court. It also acceded to the Agreement on Privileges and Immunities of the ICC. The new government of Tunisia (post the Arab Spring) submitted its instrument of accessions on Friday and the Statute will come into force for Tunisia on 1 September 2011. Tunisia’s accession is a direct result of the Arab Spring and the change of government in that country. Tunisia becomes the second Arab State (after Jordan) to become a party to the ICC Statute. It remains to be seen whether other countries in the region will follow suit. In April, it was reported that the Egyptian Foreign Minister Nabil El-Araby (on which see post below) had stated that  “Egypt is currently taking the required steps to join all United Nations agreements on human rights and to join the International Criminal Court.” No instrument of accession has been submitted yet.

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Former ICJ Judge to become Secretary-General of Arab League

Published on June 27, 2011        Author: 

Later this week, Dr Nabil El-Araby, the current Foreign Minister of Egypt will take up the position of Secretary General of the Arab League. Dr El-Araby was appointed Foreign Minister in the interim government of Egypt after the fall of the Hosni Mubarak and he was elected to be head of the Arab League in May (see here). Dr El-Araby was a Judge at the International Court of Justice  from 2001 to 2006 where he completed the term of Algerian Judge (and  former ICJ President) Mohammed Bedjaoui. As far as I know Dr El-Araby will be the first ICJ judge to go on to be head of an international organization. Many ICJ judges (Judge El-Araby included) have distinguished careers in government before being elected to the Court, however, I think it is rare for ICJ judges to go back into national governments and I  am not aware of any going on head an international organization. Apparently, the reverse situation, i.e going from head of an international organization to ICJ Judge nearly happened in the mid 1990s. Madeleine Albright, former US Secretary of State and former US permanent representative to the UN, recounts in her memoirs how the United States opposed the reelection of Boutros Boutros Ghali as Secretary General of the United Nations but told him that they would support him for the ICJ.

Incidentally, Dr El-Araby is one of a number of high profile Egyptian international lawyers/diplomats/international civil servants. Boutros Boutros Ghali is another one, as is Dr Mohammed El Baradei, former Director General of the International Atomic Energy Agency (and potential candidate for the Egyptian presidency in the forthcoming elections). All three have doctorates in international law (El-Araby and El Baradei from New York University Law School and Boutros Ghali from Paris) and Boutros Ghali and El Baradei have taught international law. Outgoing Arab League Secretary General Amr Moussa (and another potential candidate for the Egyptian presidency) is another promiment Egyptian diplomat/international civil servant who started out as a lawyer though he is not as prominent an international lawyer as the others.

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The development on the international human rights framework on sexual orientation and gender identity

Published on June 21, 2011        Author: 

Allehone Mulugeta Abebe is an Ethiopian diplomat based in Geneva, Switzerland. He serves as a co-chair of the Technical Advisory Group of the Global Commission on HIV/AIDS and Law.  Opinions expressed in this piece do not necessary reflect the views of the institutions he is affiliated with.

On 15 June 2011 the Human Rights Council’s adopted an extremely significant Resolution on “human rights, sexual orientation and gender identity” (A/HRC/17/L.9/Rev.1, available through ODS). It follows the Political Declaration on HIV/AIDS adopted by the General Assembly on 10 June 2011 which for the first time explicitly recognizes how discrimination, violence and stigma underlines the vulnerability and challenges men who have sex with men face in accessing HIV/AIDS services. These instruments underscore the fact that discrimination and stigma against people on the basis of their sexual orientation is a violation of basic freedoms and individuals rights.

The twin global movements centered on the call for the dignity of persons with different sexual orientation and gender identity and people affected by HIV/AIDS have had consequential impact for the development of international human rights law. They have particularly led to the creation of new global institutions to stir and coordinate international response against the epidemic. Institutions such as UNAIDS and the Global Fund to Fight AIDS, Tuberculosis and Malaria have been important sources for the development and elaboration of norms which seek to protect these vulnerable communities. The novelty of these institutions and their role in the development of international law not only stems from the new areas of law they canvassed but also from the direct involvement of CSOs and individuals particularly those living with HIV/AIDs. Several decisions taken by these institutions particularly those relevant to the protection of people with different sexual orientation, sex workers and people who take drugs have influenced decision making by the General Assembly and Human Rights Council.

I have had the privilege of co-chairing, together with the Honorable Michael Kirby, a prominent former judge and a human rights campaigner from Australia, an advisory team to the Global Commission on HIV/AIDS and Law. Launched by UNDP in 2010, the Commission is informed by these global movements of solidarity and trends in human rights, and seeks to encourage legal reforms by generating evidence and right-based recommendations in the context of HIV/AIDS and law.  Among others, the Commission has the purpose of encouraging states to take measures to halt discrimination and stigma as a part of their national response against HIV/AIDS. So far the Technical Advisory Group (TAG) and the Commission have held several regional dialogues and have benefited from inputs and submissions from various stakeholders.  The adoption by the General Assembly of the Political Declaration on HIV/AIDS and by the Human Rights Council of its groundbreaking resolution on “Human Rights, Sexual Orientation and Gender Identity” will profoundly boost the legal and political basis not only of the efforts to address the challenges of HIV/AIDS but also the suffering and discrimination of people with different sexual orientation across the world.

South Africa, which has one of the most liberal constitutions that grants full protection from discrimination on the basis of sexual orientation, initiated the resolution in the Human Rights Council with the support of  key western and  Latin American states. While South Africa initially explained that its proposal sought to establish an inter-governmental forum with the mandate of discussing sexual orientation within the Council, the intense negotiation that ensued led to a resolution with a narrower scope.  But the significance of the resolution is immense. It condemns discrimination and violence based on sexual orientation and gender identity occurring in all parts of the world; mandates the Office of the High Commissioner for Human Rights (OHCHR) to undertake a global survey of discriminatory laws and practices to be finalized by December 2011; and decided to organize a panel during the 19th session of the Council to hold “ constructive, informed and transparent dialogue on the matter.”  The timing coincides with the release of the report of the Global Commission on HIV/AIDs and Law and the holding of the meeting of UNAIDS’s Program Coordinating Board which will specifically discuss the role of an enabling legal environment for the promotion of universal access to prevention,  treatment, support and care services.

As the premiere UN body on human rights, the Human Rights Council plays a key role in the fight against discrimination and stigma. The key decisions by the General Assembly and the Council, however, come in the context of a much broader trend in international human rights law. Human rights treaty bodies and Special Procedures have increasingly cited the particular vulnerability of persons with different sexual orientation and gender identity. States have also put forward key recommendations during the Universal Periodic Review. Regional human rights mechanisms have also taken similar steps. For instance, the African Commission on Human and Peoples Rights has recently established a forum that is looking at the issue of human rights in the context of HIV/AIDS.  All these global and regional efforts not only will help address the specific health problems vulnerable communities suffer but also create a framework for the protection of these persons and groups from discrimination and stigma.


Which Entity is the Government of Libya and Why does it Matter?

Published on June 16, 2011        Author: 

 In the past couple of days, Germany and Canada have joined the group of countries that have declared that they consider the National Transitional Council (NTC) in to be the “legitimate representative” of the Libyan people. But what exactly does this mean? According to the BBC, the group of countries extending this recognition includes France, the UK, Italy, Spain, Germany, the UAE, Qatar, Jordan, Gambia, Senegal and Australia. Russia and the United States have had meetings with the NTC and have also made similar declarations about the illegitimacy of the Gaddafi regime and about the legitimacy of the NTC (see previous post by Stefan Talmon on the US position in March). What are the legal implications, if any, of these statements by different countries? One key question with all of these developments is whether they mean that the countries extending this form of recognition consider the NTC as the government of Libya. Secondly, if they do regard them as the government of Libya what are the international law implications of such recognition?

In a previous post, my colleague Stefan Talmon explained that declarations that the Gaddafi regime is illegitimate does not mean that that regime is not (and is not considered to be) the government of Libya as a matter of international law (and in the domestic law of other countries). What about the reverse? Do declarations about the legitimacy of the NTC mean this entity is (or is considered to be) the government of Libya as a matter of law? I think the answer is that Stefan’s point also works in reverse. Declarations about the legitimacy of the NTC are primarily intended to be political and to have effect at that political level. They are not necessarily intended to be statements with legal effect. But the emphasis here is on necessarily. To the extent that what one is dealing with is the question whether the NTC is recognised as the government of Libya, what we are dealing with here is a question of intention. What do the countries extending this form of recognition intend? Do they intend to recognise the NTC as the government of Libya? In addition to these questions of recognition, there is also the question whether under international law recognition matters. Or to put it differently, is the question of which entity is the government determined or affected by who is recognised by others as the government of Libya?

Has there been a Reversal of the Policy of Not Recognising Governments?

One of interesting things here is that many of the countries declaring the NTC as the legitimate representative of the Libyan people are countries that have a policy of not recognizing governments. Read the rest of this entry…

Filed under: EJIL Analysis, Government, Libya

Waiting for the Als…

Published on June 6, 2011        Author: 

This week will mark a full year since the Grand Chamber of the European Court of Human Rights held oral hearings in Al-Skeini and Al-Jedda (see my preview here) – and still no judgment(s). I’m pretty sure that’s some kind of record. And so we wait…

In all fairness to the Court, the probable reason for the delay is that other cases have popped up at the same time, cases which overlap to a significant extent with Al-Skeini and Al-Jedda, and which therefore call for a coherent and systematic solution. Think for example of Nada v. Switzerland, heard only a few months ago, and like Al-Jedda dealing with Security Council sanctions. Also, later this month the GC will be holding hearings in Hirsi v. Italy, in which at issue is the extraterritorial application of the ECHR to illegal immigrants intercepted on the high seas by Italian warships (cf. Medvedyev v. France). It’s no wonder the Court is taking its time, and of course there may be quite a bit of disagreement among the judges as to how to deal with these very sensitive matters.

And so, while we’re waiting for the Als, I thought I might engage in some shameless self-promotion (and when have I ever missed an opportunity to do so?). My book on the Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy is about to come out with OUP, and to good bookstores near you. As it would only be fair for my bank account to soon start overflowing with royalties, I thought I might entice potential readers with the following extract from pp. 154-160 of the book, dealing with the so-called ’embassy exception’ for the extraterritorial application of the ECHR.

Recall that the House of Lords in Al-Skeini held that the ECHR cannot apply to five of the applicants killed in Basra by UK troops on patrol, as Iraq was outside the ECHR’s espace juridique. However, the ECHR did apply to the sixth applicant, Baha Mousa, who was killed by UK soldiers while in detention, as a UK military prison in Iraq supposedly had a special status in international law, a status analogous to an embassy. We’ll (soon?) see what the European Court does with this in Al-Skeini, but here are some thoughts of my own:


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