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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…


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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The ECJ and (Mis)interpretation of Security Council Resolutions: The Case of Sanctions Against Iran

Published on December 23, 2013        Author: 

On 28 November 2013, the ECJ set aside the judgment of the General Court of the EU in case T‑509/10, Manufacturing Support & Procurement Kala Naft v Council, which had annulled, in so far as they concerned the applicant (an Iranian company owned by the National Iranian Oil Company), the various EU restrictive measures targeting persons and entities listed as being engaged in nuclear proliferation (including Council Decision 2010/413/CFSP). However, in my view, the ECJ was wrong in considering that the UNSC Resolution 1929 (2010) provided a basis for the challenged EU measures as the Court wrongly interpreted the SC resolution as enabling the European Council to conclude that trading in key equipment and technology for the gas and oil industry was ‘capable of being regarded as support for the nuclear activities of [Iran]’.

In its judgment, the ECJ, recalls that the effectiveness of judicial review requires that the Courts of the EU are to ensure that the decision challenged ‘is taken on a sufficiently solid factual basis’ (at para. 73), and observes that in order to assess the lawfulness of the General Court’s review of the measures, it shall examine ‘the way in which the General Court identified and interpreted the general rules of the relevant legislation’ (para. 74). The ECJ held that “there is nothing in the judgment under appeal to indicate that the General Court took into account the changes in European Union legislation after Security Council Resolution 1929 (2010) (para. 75, emphasis mine). Read the rest of this entry…

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Immunity of Consular Officials – The Arrest by the US of an Indian Deputy Consul-General

Published on December 20, 2013        Author: 

For a subsequent posts on this issue see part 2 and part 3.

A serious diplomatic row is brewing between India and the United States regarding the arrest  and treatment of an Indian consular official accredited to the United States (see coverage by the BBC, New York Times & the Daily Mail). The brief background to the story is that last week, US Federal authorities arrested Devyani Khobragade, who is the Indian Deputy Consul-General in New York, on charges of visa fraud. Ms Khobragade is accused of submitting false documents to US authorities in order obtain a work visa for her housekeeper/maid. She is also accused of paying the maid less than the minimum wage prescribed by US law. The dispute over her arrest has become particularly acrimonious because it is alleged that not only was Ms Khobragade arrested at her daughter’s school, that she was handcuffed (which is denied by US authorities) and then subjected to a strip-search (which seems to be admitted) (see New York Times piece). Although US Secretary of State Kerry has called the Indian authorities to express regret over the incident, India has demanded an apology from the US and has taken “retaliatory” measures. Those measures include the removal of some privileges previously accorded to US diplomats, a refusal by Indian officials to meet with a US Congressional delegation in India, and perhaps most seriously, the removal of security barricades that were in front of the US embassy in Delhi (see here and here).

This post address three main issues (i) whether the Indian official is immune from prosecution; (ii) whether she was immune from arrest in the first place; and  (iii) the legality of India’s response to the incident. The key legal question that has arisen in this episode is whether the Indian consular official is entitled to immunity from prosecution. Her lawyers have asserted that she is immune from US jurisdiction. It is not clear whether India has similarly asserted that she is immune though India has demanded an apology which suggests that they think the US has done something wrong. Most of the media have reported the US position which is that consular officials, unlike diplomatic agents, are not entitled, under international law, to full immunity from criminal jurisdiction. This is correct. Read the rest of this entry…


East Timor Takes Australia to ICJ over Documents Seized by Australian Intelligence

Published on December 19, 2013        Author: 

By an application deposited with the International Court of Justice on 17 December 2013 (not yet on the Court’s website), East Timor has instituted proceedings against Australia over the seizure and detention by ‘agents of Australia of documents, data and other property’ belonging to East Timor or which it ‘has the right to protect under international law’.  Simultaneously, East Timor also requested the Court to indicate provisional measures in the case.

The case concerns a search of the Canberra law offices of Mr Bernard Collaery on 5 December by agents of the ASIO (Australian Security Intelligence Organisation) and the removal by them of various documents and electronic devices.  It also appears that at the same time a retired ASIS (Australian Secret Intelligence Agency) officer was also arrested, had his passport confiscated and his premises searched, with documents there also being seized. It was later confirmed by the Australian Attorney General George Brandis that he had approved the warrants under which the searches had been conducted, and that the raids had been carried out ‘to protect national security’.

East Timor and Australia are currently parties to an arbitration administered by the Permanent Court of Arbitration.  On 23 April 2013 East Timor initiated arbitration proceedings under the 2002 Timor Sea Treaty in respect of a dispute related to the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS).  The dispute concerns the validity of the CMATS Treaty, with East Timor alleging that ‘Australia did not conduct the CMATS negotiations in 2004 in good faith by engaging in espionage.’ [Few details of the arbitration have been made public (there is no specific mention of it on the PCA’s website) but Mr Collaery is one of East Timor’s lawyers and the retired ASIS officer one of East Timor’s witnesses in the arbitration.  It appears that he was to speak of the bugging of the East Timorese cabinet office during the CMATS Treaty negotiations (see here).

The claim before the ICJ concerns only the search of Mr Collaery’s office.  According to the Court’s press release,  East Timor alleges that during the search ‘documents and data containing correspondence between the Government of Timor-Leste and its legal advisers, notably documents relating to a pending arbitration under the 2002 Timor Sea Treaty between Timor-Leste and Australia’ were seized, in breach of East Timor’s sovereignty and its property and other rights under international law.  It claims the return of the documents and destruction of any copies made of them, as well as just satisfaction in the form of an apology from Australia and the payment of East Timor’s legal costs. Read the rest of this entry…


Hassan v. United Kingdom, IHL and IHRL, and Other News in (Extra-)Territoriality and Shared Responsibility

Published on December 18, 2013        Author: 

Last week the Grand Chamber of the European Court of Human Rights held an oral hearing in what is bound to be a very important case, Hassan v. UK. The case deals with the detention of an Iraqi by British forces in southern Iraq and his subsequent release and death under unclear circumstances. As such it raises both threshold questions on extraterritorial applicability/Article 1 jurisdiction and substantive issues on the relationship between human rights and international humanitarian law. Here is the Court’s press release on the hearings, and here’s the actual webcast of the hearings. Shaheed Fatima also has a good preview of the case over at Just Security.

The jurisdiction issue is made more complicated by uncertainties left after Al-Skeini as to whether and when exactly the UK had effective overall control over southern Iraq for the purpose of spatial model of Article 1 jurisdiction, as well as by the fact that the camp to which Hassan was taken upon arrest was run by the US. The multiplicity of actors can thus render both the jurisdiction and the attribution questions more difficult. But I will not deal with them here. Rather, I want to focus on the interaction between the ECHR and IHL.

In that regard, together with the pending Georgia v. Russia interstate case, Hassan presents an excellent opportunity for the Court to articulate a clear and systematic approach on IHL. Hopefully this is an opportunity that the Court will take up, and the questions posed by the various judges during the oral hearing are an indication that they will do so.

Why is Hassan such a good case? Because at least in part it poses the hard question of potentially unavoidable norm conflict (a topic which I have dealt with extensively here, as well as specifically in the context of IHL and IHRL here). On the one hand, the UK is arguing that Hassan’s arrest and preventive security detention were authorized by IHL in an international armed conflict (the exact theory is for the time being beside the point). On the other hand, Article 5 ECHR categorically prohibits preventive security detention; unlike Article 9 ICCPR, which prohibits arbitrary deprivations of liberty, Article 5 ECHR contains an exhaustive list of permitted grounds for detention, and preventive security detention is not one of them. Hence, when states wanted to use internment in the context of internal disturbances or emergencies which may even have reached the level of non-international armed conflict, they had to derogate from Article 5 pursuant to Article 15 ECHR, as the UK did for Northern Ireland.

In the context of Hassan this raises the preliminary question of whether the UK could have derogated with respect to the situation in Iraq (which in any event it did not do), i.e. whether Article 15 ECHR allows for extraterritorial derogations. Article 15 limits derogations to times of ‘war or other public emergency threating the life of the nation.’ In Al-Jedda Lord Bingham expressed doubts that this formulation could extend to situations outside the derogating state, especially those which it had put itself in willingly, a sentiment later echoed by the UK Supreme Court in Smith. In other words, the UK chose to invade Iraq, and however bad the situation was for Iraqis in Iraq it in no meaningful way threatened the life of the UK. Further support for this position would be found in the fact that no state has ever derogated for an extraterritorial situation.

Read the rest of this entry…


New Issue of EJIL (Vol. 24: No. 4) Published

Published on December 17, 2013        Author: 

The latest issue of the European Journal of International Law (Vol. 24, No. 4) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can also access those articles that are freely available without subscription. The free access articles in this issue are Andrew Williams’s The European Convention on Human Rights, the EU and the UK: Confronting a Heresy and a reply to that article by Stelios Andreadakis. In January, we will hold a discussion of those two articles. In the coming weeks, we will also have a series of posts on reservations to treaties, following this issue’s Symposium: The International Law Commission’s Guide to Practice on Reservations to Treaties. Subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.


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Extraterritoriality and the Fundamental Right to Data Protection

Published on December 16, 2013        Author: 

Kuner ChristopehrChristopher Kuner is affiliated with the Brussels office of Wilson, Sonsini, Goodrich & Rosati, and is an Honorary Fellow of the Centre for European Legal Studies, University of Cambridge, and an Honorary Professor at the University of Copenhagen.

Following a series of thoughtful entries by Marko Milanovic, Anne Peters, and Carly Nyst dealing with the extraterritorial application of privacy rights to foreign intelligence surveillance, this post discusses extraterritoriality and the fundamental right to data protection, particularly in the context of the Internet. I will cast my net more broadly than intelligence surveillance, and avoid revisiting points made in those earlier posts.

Since space is limited, I will limit myself to three topics: 1) the distinction between data protection and privacy; 2) the status of data protection in international law; and 3) challenges for the extraterritorial application of data protection rights.

Data Protection and Privacy

Data protection law restricts the processing of personal data, and grants legal rights to individuals in how they are processed. It was developed in Europe in the 1970s and 1980s, and has now spread to all regions of the world.

Data protection and privacy often overlap, but are not identical. Privacy generally protects against intrusion into an individual’s “private space”, whereas data protection regulates the processing of an individual’s personal data, whether or not such data are considered “private”. A good starting point for understanding the distinction between the two concepts in EU law and European human rights law is the article by Juliane Kokott and Christoph Sobotta published recently in International Data Privacy Law. Read the rest of this entry…


Announcements and Events: International Law Association (British Branch) Spring Conference, Stanford Call for Papers

Published on December 14, 2013        Author: 

1.  King’s College London will be hosting the International Law Association (ILA) British Branch Spring Conference on 23-24 May 2014. The call for papers has just been issued, with a deadline for submission of one-page abstracts of 30 January 2014. The theme – “Foundations & Futures of International Law” – provides broad scope for contributions that explore foundational questions (eg, the relationship between international, regional and domestic legal orders; the identification and development of customary international law; the regulation of armed conflict) as well as papers on new theoretical paradigms or issues of concern to present and future generations. Abstracts should be sent to ilaconf [at] kcl [dot] ac [dot] uk. Further information is available here.

2.  The Stanford Journal of International Law seeks contributions by academics, practitioners, and policymakers for its Symposium titled Governing Intelligence: Transnational Threats & the National Security State, which will take place on May 2, 2014 at Stanford Law School.  Governing Intelligence will move beyond the surveillance debate to start an interdisciplinary dialogue about the power and limits of intelligence agencies from a comparative and international perspective. Contributions must address either of the following topics: (a) National Intelligence & Transnational Threats; or, (b) Individual Rights & Intelligence Gathering.  The abstract submission deadline is February 1, 2014. Decisions will be released on a rolling basis. The full announcement, along with sub-topics, contact information, and submissions guidelines, can be found here.

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Crime and Punishment: The Reification and Deification of the State (A Footnote to the Syria Debate)

Published on December 13, 2013        Author: 

When I studied international law as a student close to 40 years ago at Cambridge (East), Naulilaa was still a central case in the study of jus ad bellum. It would be found in many a ‘casebook’ or course pack. I am pretty sure that at least some of the younger readers of this Editorial will be googling at this very moment ̶ Naulilaa, what’s that? This is significant, for it has largely vanished from casebooks and course packs, only appearing, if at all, in a footnote. What accounts for that demise? Was it superseded by other cases? Not exactly. For the truth is that it should really have been expunged from those early books, or appeared at best as a relic of the pre-Charter era – a relic with an unpleasant colonial odour. Already then it was very difficult to square Naulilaa with the Charter regime concerning the legitimate use of force. Where is the armed attack? Could that punitive raid plausibly be called self defence? One would have to engage in some serious lexical violence towards either the case or the Charter or both in order to square one with the other. Why was it there then? Inertia is one, not implausible, possibility. It takes the demise of a generation, as we learnt from Thomas Kuhn, for a paradigm truly to shift. Another intriguing possibility is that the Charter notwithstanding, it reflected an occasional but persistent state practice. What does one do in the face of an illegal use of force falling short of an armed attack? We all remember the tortured reasoning of the ICJ in Nicaragua, trying to address what might count as a legitimate response to such. To talk of punishment or reprisal, which is what Naulilaa really was about, was of course taboo. So it was squeezed into the ill-fitting jacket of self-defence, though as a bastard son with, for example, no recourse to collective self-defence in this instance. It was not only the ICJ that was discomfited: the late Sir Derek Bowett, one of my teachers at the time, spoke (and wrote) illuminatingly about the seemingly contradictory Security Council responses to Israeli reprisal raids in the 1960s. There have been other similar uses over the years in other arenas. The surface language of the justification offered over the decades for that type of use of force was the same rubbery rendition of self-defence.  Naulilaa represents their real deep structure.

There are many ways to explain the seeming impossibility to definitively rid the system of the Naulilaa ethos. On the one hand Naulilaa represents, as I have suggested, a clear challenge to the Charter’s focus on self-defence as the principal, perhaps only, moral justification for the legitimate use of force by individual states. At the same time, it also reflects a deep human repugnance in the face of crimes going unpunished. The unresolvable debate concerning the very appropriateness and the place of retribution (not explained away as deterrent) in theories of punishment is the domestic equivalent of this tension in international law. Read the rest of this entry…