Home 2015 July

Breaking: Court of Appeal Affirms Serdar Mohammed

Published on July 30, 2015        Author: 

Breaking news: today the English Court of Appeal  unanimously affirmed Leggatt J’s judgment in Serdar Mohammed v. MoD, finding that IHL does not contain authority to detain in non-international armed conflicts. Full (and very lengthy) judgment available here; our earlier coverage is here. Happy to report that some of our earlier posts (three I think) were cited by the Court. Obviously I haven’t yet read all of the decision, but we will have plenty of commentary in the days to follow.  I imagine an appeal to the Supreme Court is virtually inevitable.


Tears in Our Eyes: Third State Obligations in International Law

Published on July 30, 2015        Author: 

In early January 2015 the Republic of South Korea sold 1.9 million tear gas canisters to Turkey. With this sale came much campaigning against it. Amnesty International’s “Korea, do not sell us tear gas” campaign received over 50,000 signatures of support. The goal of this campaign was to highlight how the Turkish police force has been and continues to be to this day reckless and excessive in its use of tear gas on certain domestic demonstrations. Reckless and excessive use which, according to data collected by the Turkey Human Rights Joint Platform, led to the death of 19 Turkish citizens between 2006 and 2013 — including four children.

The sale of such large quantities of tear gas to a country that has a proven track record of using it frequently and recklessly raises important questions of international law. It raises questions in particular with regard to the responsibility of third states for internationally wrongful acts and the standard of proof required to establish such responsibility. Put simply, did South Korea commit an internationally wrongful act when it sold tear gas to Turkey?

Tear gas and international law

The name tear gas encompasses a group of substances that irritate mucous membranes and cause stinging sensations and tears. The effect of tear gas is normally considered temporary for a healthy adult so long as they are able to breathe fresh air shortly after exposure. Fatalities have been caused when tear gas has been used in closed spaces, on unhealthy adults or the elderly, or when canisters have been fired directly at protesters.

The use of tear gas is prohibited in wartime both by the 1925 Gas Protocol and the 1993 Chemical Weapons Convention.  The 1993 Convention, however, explicitly includes a clause in Article 1(5), inserted at the insistence of the United States, stating that “Each State Party undertakes not to use riot control agents as a method of warfare.” Article II(7) of the 1993 Convention further defines a “Riot Control Agent” as “Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.” This clause, by implication, signals a regime of permissibility for riot control agents — including tear gas — during peacetime. Read the rest of this entry…


Arbitration between Croatia and Slovenia: Leaks, Wiretaps, Scandal

Published on July 28, 2015        Author: 

The Arbitration between Croatia and Slovenia, brokered by the European Commission, conducted under the auspices of the Permanent Court of Arbitration and concerning delimitation of the maritime and land boundary between the two States, has been ongoing over the past three years. By the Tribunal’s estimation, it has featured nearly 1,500 documentary exhibits and legal authorities and 250 figures and maps. Following the conclusion of the oral phase of proceedings in June 2014, the Tribunal issued a press release on 10 July of this year in which it announced that the award would be promulgated in mid-December.

All of this progress towards the peaceful settlement of the dispute was thrown into sudden doubt by the revelation that the arbitrator of Slovenian nationality, Dr Jernej Sekolec, was secretly in contact with the Slovenian agent, Simona Drenik. These contacts, which allegedly took place during two secret telephone conversations on 15 November 2014 and 11 January 2015, included discussions of how to best influence the other arbitrators to rule in Slovenia’s favour, the sharing of Slovenian submissions directly with Dr Sekolec (who stated that he would present them to the other arbitrators as his own ‘notes’ on the case), and the advance leaking of the deliberations of the Tribunal to Ms Drenik, including the tip that the Tribunal would award to Slovenia at least two thirds of the disputed waters it had claimed.

The story was broken on Wednesday 22 July by the Croatian daily newspaper Večernji list (acting on information first leaked in the Serbian tabloid Kurir), which published transcripts and audio recordings of the conversations between the two on its website. For a description in English, see this story by the reputable NGO Balkan Insight.

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Published on July 28, 2015        Author: 

Hold fast to dreams//For if dreams die//Life is a broken-winged bird//That cannot fly.//Hold fast to dreams//For when dreams go//Life is a barren field//Frozen with snow.

With this poem by Langston Hughes I ended my graduation speech in high school. I remember it now as I am pondering how to put into words my feelings and thoughts of the last weeks oscillating between hope, fear and despair — triggered by the events unfolding after the Greek delegation “left the negotiating table” in Brussels on 27 June. When I graduated from high school more than 20 years ago I was quite hopeful (like generations before me) that knowledge combined with political activism could change the world for the better. Already then I was fearful of environmental disaster and military destruction, but periodical acts of teenage disobedience – plastering the school with antiwar poems to protest against the first Iraq war or blasting music over the courtyard while staging an impromptu play (I cannot remember against or for what exactly) — were not only fun but gave me and my friends a sense of agency – “Viele kleine Leute an vielen kleinen Orten, ….”/think global act local.

In the meantime the world has become no friendlier place (but who am I to state this privileged as I am). I may be wiser (although sometimes I doubt it), but I also succumbed to a mixture of complacency or trust in professions and institutions, resignation and perpetual lack of time. I trust that science and politics will do something to keep us safe and free, that one of the political parties will have a programme relatively compatible with my ideological leanings. I close my ears to the horror scenarios describing the consequences of climate change as I have stopped believing that we will achieve a reorganization of our economy and am too much of a coward to confront the disasters that lie ahead. But apart from complacency and resignation the possibly most significant difference to my political teenage self is the perceived loss of time. Time spent with friends who also had nothing more important to do than to think up little projects – plays, posters, protests… I am lucky that my current job does not meet the description of a “bullshit job” (recently formulated by David Graeber), but appears to leave me some freedom for thinking, educating, creating. Yet this has not helped to sustain the sense of agency I felt as a youth. I have become more knowledgable, my critique better founded but I no longer see how we (who?) might halt ecological destruction or social destitution. And thus I am not even using the time and space offered by my job for any kind of mischief that would combine joy, resistance and engagement for change.

The last weeks now worked like a wake up call for me, triggering a sense of urgency for action, some action, any action and if it is only the writing of this post (which prompts a multitude of voices in my head judging my musings to be “gratuitious”, “empirically unfounded”, “theoretically undercomplex” …). So what was the trigger that suspended resignation and shattered complacency and trust (“Vertrauen” — a word I have come to loathe in the past weeks for its abuse and misuse by crisis commentators)? It was, I suspect, a combination of a heightened perception of complicity in a number of outrageous injustices and the excitement that agency may be regained. I may have long resigned to the fact that my privilege is the flip side of other people’s poverty, that through my daily consumption choices I am perpetuating structural injustices. Read the rest of this entry…

Filed under: EJIL Analysis, European Union
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Security Council Resolution 2231 and the Joint Comprehensive Plan of Action on Iran’s Nuclear Program

Published on July 27, 2015        Author: 

Last week I did a couple of posts elsewhere on the Joint Comprehensive Plan of Action (JCPOA), agreed on July 14 between the P5+1 and Iran regarding Iran’s nuclear program. See here and here. These posts may be of interest in explaining the essential agreement contained in the JCPOA, and in examining some of its key legal implications.

The JCPOA is the culmination of twenty months of negotiations between the P5+1 and Iran, since the initial Joint Plan of Action (JPOA) was agreed by the parties in November 2013. I wrote a post discussing the JPOA here at EJIL:Talk! at the time it was agreed.

I’d like to focus this post on the unanimous passage by the U.N. Security Council on July 20 of Resolution 2231, which can be found here. Resolution 2231 comprises 104 pages of text, inclusive of two annexes, one of which is the entire JCPOA text. I mention this because my primary impression in reading over Resolution 2231 and is annexes for the first time, was frankly astonishment that the parties had been able to agree on such an amazingly complex, thorough and comprehensive diplomatic accord. I was also impressed by the precision of the text of Resolution 2231 itself (apart from a couple of typos) in implementing, in what appears to be a very sophisticated and, as far as I can tell, correct way, the agreement reached by the parties on July 14.

The JCPOA itself and Resolution 2231 appear to represent a major success of international diplomacy, as well as a significant achievement of international law in facilitating the implementation of the diplomatic accord. Again, it is difficult to overstate the complexity of the issues that had to be resolved among the parties to arrive at both the JCPOA and Resolution 2231. And the specificity with which these issues were addressed in both documents – down to weights and measures and dates of implementation – is frankly astonishing, and far exceeds my expectations.  And so I compliment all of the diplomats and lawyers involved. Read the rest of this entry…


Announcements: CfP, Legal Theory/Philosophy Conference on European Values (Ljubljana); New Additions to UN Audiovisual Library

Published on July 25, 2015        Author: 

1.  Call for papers, 2015 Legal Theory and Legal Philosophy Conference (20 and 21 November 2015, Ljubljana): In Search of Basic European Values.” The Graduate School of Government and European Studies and the European Faculty of Law, both Slovenia, invite researchers undertaking research on public law, human rights , legal theory and legal philosophy to submit abstracts for participation at the 2015 Legal Theory and Legal Philosophy Conference (20 and 21 November 2015, Ljubljana) under the title “In Search of Basic European Values”. Interested applicants should send a 250-word abstract and a CV in narrative form by 1 September 2015 to jernej.letnar {at} fds(.)si. Authors will be notified of acceptance by 15 September 2015. If you have any questions, please write to dignitas {at} fds(.)si. More information is available here.

2.  New additions to the UN Audiovisual Library of International Law.  The Codification Division of the UN Office of Legal Affairs recently added new lectures to the UN Audiovisual Library of International Law  website, which provides high quality international law training and research materials to an unlimited number of recipients around the world free of charge. Two complete courses were given by Professor Laurence Boisson de Chazournes on “Droit international de l’environnement”; Professor Makane Mbengue on “Introduction au droit de l’OMC”; The latest lectures were given by Professor André Nollkaemper on “Shared Responsibility in International Law”; Judge Bennouna of the ICJ on “La Cour internationale de Justice et les droits de l’homme”; Judge Tomka of the ICJ on “The Special Agreement as a Way of Submitting Disputes to the International Court of Justice” and several lectures by Judge Cançado Trindade of the ICJ: “The Human Person and International Justice”; “L’humanisation du droit international”; “The Founding Fathers of International Law” and “Le système interaméricain de protection des droits de l’homme”.

Filed under: Announcements and Events
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Living Instruments, Judicial Impotence, and the Trajectories of Gay Rights in Europe and in the United States

Published on July 23, 2015        Author: 

Evolutionary or dynamic interpretation is one of those perennial ‘big’ topics, which we e.g. recently dealt with in our book discussion on Eirik Bjorge’s recent work on the topic. Judicial pronouncements on LGBT rights are an excellent example of this phenomenon (for some of my earlier thoughts on this, see here). In particular, on 26 June the US Supreme Court rendered its blockbuster ruling in Obergefell v. Hodges, in which it held (per Justice Kennedy, and by 5 votes to 4) that the US Constitution requires full marriage equality between same-sex and different-sex couples. On reading this judgment, as well as some of the recent cases on similar questions before the European Court of Human Rights, I was struck by several points on the practical realities of dynamic interpretation that I’d like to raise in this post.

First, it really is striking that despite the many differences in the text of the relevant instruments, their history, the institutional make-up or legal culture generally, US and European courts both look at gay rights generally (or the issue of gay marriage specifically) through the same analytical lenses: on the one hand there’s private life, family life or individual liberty (or in US parlance substantive due process under the Fourteenth Amendment to the US Constitution); on the other hand, there’s equality or non-discrimination. And while there are many differences in the concrete legal tests being applied (e.g. proportionality in Europe, tiered levels of scrutiny in the US), there are many conceptual similarities as well.

Second, in both Europe and in the US most gay rights cases, whether under privacy/liberty or under equality, boil down to one basic, fundamental problem: if a right or legitimate interest is interfered with or restricted by the state (e.g. gays are denied the right to marry), what is the justification offered by the state for that restriction, and how then should a court assess that justification. In particular, can such a restriction ever be justified by reference to public morals, or tradition, or disapproval of a particular group or behaviour alone, absent any objectively identifiable, concrete individual or societal harm. One reason why Obergefell came out the way it did was that the opponents of gay marriage were simply unable to articulate any concrete harm to anyone; each argument they tried to make of that type was easily disprovable (e.g. if marriage is inextricably tied to procreation, why then do we allow infertile couples to get married, etc. – for an example of pretty brutal judicial questioning along these lines, one need only listen to this oral argument before Judge Richard Posner, and read this judgment.)

In other words, the big question is whether it would ever be legitimate to restrict marriage to opposite-sex couples simply because ‘we’ (say the majority in a popularly elected parliament) believe that same-sex couples are icky and yucky. Is a feeling or sentiment of yuckiness (or sinfulness, turpitude, taboo, whatever) enough to deny people legal rights? Many lawyers would stop here and simply say that such irrational considerations cannot form the basis for running a legal system. But wait – in the European Convention (unlike in the US Bill of Rights) we actually have explicit references to the protection of morals in the limitation clauses of several articles, including Article 8. And in fact the Court has said, for example, that it’s fine to keep a person in prison simply because that person chooses to walk in public without wearing any clothes, even though he causes no concrete harm to others in so doing – remember that naked rambler dude? He’s still naked, and still in prison (9 years on! – see here and here for very recent developments). And if yuckiness alone does not suffice, what then of polygamy or consensual adult incest and the like (and we do have cases like that), or some other parade of horribles?

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Announcement: CfP on Human Rights, Public Policy, Democracy & Governance

Published on July 19, 2015        Author: 

Call for papers on Human Rights Protection, Human Rights Public Policies, Democracy and Governance: The International Journal of Human Rights and Constitutional Studies (IJHRCS) is currently seeking submissions on Human Rights Protection, Human Rights Public Policies and Democracy and Governance.  The coming issues aim at providing an opportunity for scholars and practitioners to explore novel and original material on the above areas, including themes relating to the current economic and political crises; globalised democratic governance; migration and multiculturalism; democratic deficit theory; digital participation, e-democracy, e-governance.   We welcome the submission from scholars around the world and would like to encourage young law researchers especially to submit their recent works. Articles previously published cover researches both doctrinal and inter-disciplinary.  Please click here for submission details.

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Russian Constitutional Court Affirms Russian Constitution’s Supremacy over ECtHR Decisions

Published on July 15, 2015        Author: 

On 1 July 2015 a group of Russian MPs requested the Russian Constitutional Court (RCC) to check the constitutionality of the Federal Law ‘On ratification of ECHR’, the Federal Law ‘On international treaties’, and a number of procedural norms. According to the applicants,

‘participation in international cooperation should not lead to a breach of human rights or contradict the fundamental principles of the constitutional system. In their view, the contested rules oblige the courts and other state bodies to implement unconditionally ECtHR decisions, even if they contradicted the Russian Constitution. As a result … the person who applies the law is put in an impossible situation, because such a conflict might be insoluble.’

Although the RCC held that the contested norms do not conflict with the Constitution, thus leaving the de jure legal status of the Convention intact, this ruling and its high publicity in Russian media clearly signifies a change in the political attitude towards the implementation of decisions of the European Court.

Position of the Constitutional Court

The Court confirmed that the contested norms do not contradict the Constitution. Thus, the Convention remains part of Russian legal system, according to Article 15 (part 4) of the Constitution. However, the Court reasoned that

‘the participation of the Russian Federation in any international treaty does not mean giving up national sovereignty. Neither the ECHR, nor the legal positions of the ECtHR based on it, can cancel the priority of the Constitution. Their practical implementation in the Russian legal system is only possible through recognition of the supremacy of the Constitution’s legal force.’

There is no revolution in admitting that ‘both the Constitution and the European Convention are based on shared basic values’ and that ‘in the vast majority of cases no conflict between the two documents can appear at all.’ There have hardly been any conflicts since 1998, when Russia ratified the Convention. However, when it comes to interpretation, apparently the position can differ. Read the rest of this entry…


The Shameful Twenty Years of Srebrenica

Published on July 13, 2015        Author: 

In the great catalogue of human misery, the July 1995 Srebrenica genocide merits a special mention. But as horrible as the slaughter of more than 7,000 Bosnian Muslim men and boys was – unquestionably the worst crime of the whole brutal Bosnian conflict – the repeated, ongoing and unrelenting denial of the crime is if not worse, then at least as depressing. Today, twenty years on, that revisionist denial is strongest where it matters – in Republika Srpska and in Serbia – and its strength demonstrates the continued, long-term inability of these communities to come to terms with the past.

The denial is manifold, in forms both hard and soft. It ranges from a complete rejection that any crime took place, to disputing the number of victims or who the victims were, to emphasizing crimes against Serbs around Srebrenica or inflating the numbers of Serbs killed, to disputing the characterization of the crime as genocide as if that makes some actual moral difference. And, it needs to be said, that denial is virtually unaffected by whatever the International Criminal Tribunal for the Former Yugoslavia or the International Court of Justice said on the matter.

To demonstrate the scale of denial in cold, hard numbers, it suffices to take a look at a February 2012 survey of public opinion in Bosnia, sponsored by the Belgrade Centre for Human Rights and the OSCE and conducted by Ipsos Strategic Marketing (detailed results on file with me). The survey found that of the (mostly Serb) population of the Republika Srpska only 59.2% say that they even heard of a massacre in Srebrenica, while only 34.8% of the people who say that they’ve heard of the crime believe that it actually happened. Thus, of the whole RS population 40.8% say they’ve never even heard of any massacre in Srebrenica, 38.6% say that they’ve heard of it but that it never happened, and only 20.6% believe it did. That, dear readers, is what ‘truth and reconciliation’ in today’s Bosnia look like.

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