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Palestine Sues the United States in the ICJ re Jerusalem Embassy

Published on September 30, 2018        Author: 
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On Friday Palestine instituted proceedings against the United States of America before the International Court of Justice, claiming that the US violated the Vienna Convention on Diplomatic Relations by moving its embassy to Israel from Tel Aviv to Jerusalem. The application is here, the ICJ’s press release here; this is how the press release summarizes Palestine’s claim:

It is recalled in the Application that, on 6 December 2017, the President of the United States recognized Jerusalem as the capital of Israel and announced the relocation of the American Embassy in Israel from Tel Aviv to Jerusalem. The American Embassy in Jerusalem was then inaugurated on 14 May 2018.

Palestine contends that it flows from the Vienna Convention that the diplomatic mission of a sending State must be established on the territory of the receiving State. According to Palestine, in view of the special status of Jerusalem, “[t]he relocation of the United States Embassy in Israel to . . . Jerusalem constitutes a breach of the Vienna Convention”.

As basis for the Court’s jurisdiction, the Applicant invokes Article 1 of the Optional Protocol to the Vienna Convention concerning the Compulsory Settlement of Disputes. It notes that Palestine acceded to the Vienna Convention on 2 April 2014 and to the Optional Protocol on 22 March 2018, whereas the United States of America is a party to both these instruments since 13 November 1972.

In brief, Palestine argues that various articles of the VCDR, especially Article 3 thereof, require that the functions of the diplomatic mission be performed ‘in the receiving state,’ which means that the mission must be established in the receiving state. Jerusalem is not Israeli territory, and therefore moving the embassy there meant that it was not established in the receiving state. Ergo, there was a violation of the VCDR.

This case raises numerous issues, some obvious, some not. There are many objections that the US could raise, and will inevitably raise.

Read the rest of this entry…

 

Announcements: UN Audiovisual Library of International Law; CfP The League of Nations Decentred; Cynical International Law? Conference

Published on September 29, 2018        Author: 
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1. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added the following lectures to the UN Audiovisual Library of International Law website: Dr. Anthea Roberts on “Is International Law International?” and Mr. Dire Tladi on “The African Peace and Security Architecture”. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.

2. Call for Papers – The League of Nations Decentred: Law, Crises and Legacies. Melbourne Law School is hosting a conference on 18 – 19 July 2019 which intends to bring together scholars working in law, history, international relations, and political theory to think critically about the League of Nations, law, institutions, practices, ideologies and technologies in relation to or with a view from the South. Abstracts of no more than 350 words should be submitted to Dr Ntina Tzouvala (konstantina.tzouvala {at} unimelb.edu(.)au) by 30 of November 2018.

3. Cynical International Law? Conference: Abuse and Circumvention in Public and Private International law, as well as European Law. The conference departs from the idea that cynicism in international law appears to be ubiquitous. Actors seem to abuse international law or circumvent the purpose of its rules on many occasions. This is particularly evident where illiberal, populist or autocratic actors try to profit from the legitimacy of lawful conduct, while arguably acting against the spirit of the law. Situations in which states advance international legal arguments of self-determination and humanitarian intervention in this manner in order to justify the use of force have received much attention. Further, one could call it cynical when states undermine international organizations, e.g. by obstructing the election process of the organizations’ organs, or when international standards are eroded due to minimalist implementation, e.g. by reducing climate law’s ‘nationally determined contributions’ to zero. Likewise, non-state actors might use international law in a cynical way. Examples include the potential abuse of investment protection mechanisms and of strategic litigation before international judicial bodies.

Filed under: Announcements and Events
 

Painful Relations between the Council of Europe and Russia

Published on September 28, 2018        Author:  and
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During the forthcoming October part-session of the Parliamentary Assembly of the Council of Europe (PACE), it will vote on amending its rules of procedure. Normally such technical changes do not attract much public interest but this vote certainly will. Due to inappropriate pressure, considered by many as blackmail, the Russian (parliamentary) authorities have suggested that the Assembly’s rules ought not to permit the exclusion of national delegations from the Assembly. In other words, the Assembly should take away from itself its ultimate sanction, namely excluding a parliamentary delegation of the state that refuses to comply with Council of Europe’s fundamental values: human rights, the rule of law and pluralistic democracy. This can only be done once attempts to admonish or reprimand a state which breaches the rules of the democratic club have failed.

That said, the Committee of Ministers, the other statutory body of the Council of Europe, can suspend or expel a state which seriously violates the club’s rules. Expulsion is however a politically complex exercise. Article 8 of the Organisation’s Statute specifies that if a member state seriously violates founding principles of the rule of law and human rights, the Committee of Ministers can so decide. Read the rest of this entry…

 

Intelligence Sharing and the Right to Privacy after the European Court Judgment in Big Brother Watch v. UK

Published on September 24, 2018        Author: 
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On 13 September 2018, the European Court of Human Rights ruled in three consolidated cases brought by 14 human rights organisations and 2 individuals against the UK government’s mass interception program and its access to the intelligence gathered by other governments, including the United States (Big Brother Watch v. UK, nos. 58170/13, 62322/14, 24960/15.)

As noted already by Marko Milanovic, these cases are nuanced, complex, and long. I intend to focus here on one aspect, namely the way the Court assessed the intelligence sharing claim brought by the applicants (paras 416-449.) This assessment is noteworthy as that claim presents an issue of first impression for the Court. As the judgment itself notes, “this is the first time that the Court has been asked to consider the Convention compliance of an intelligence sharing regime” (para 416). (It is worth noting, however, that the recent judgment in Centrum för Rättvisa v. Sweden no. 35252/08 also touches upon this issue.)

The applicants’ intelligence sharing claim centred on the revelations, contained in disclosures by Edward Snowden, that the UK government has access to information collected by other foreign intelligence agencies, and most notably the U.S. National Security Agency (NSA). In particular, these revelations suggest that the UK government has direct and unfettered access to raw data intercepted by other governments, which it can then filter, store, analyse and further disseminate. They further suggest that the UK government has similarly broad access to information stored in databases by other governments.

From a human rights law perspective, the fundamental question raised in this case is the nature of the interference and therefore the applicable test to apply to such interference. Read the rest of this entry…

 

Announcements: International Law Weekend 2018; CfP Edinburgh-Glasgow International Law Workshop; Legal Resilience in an Era of Hybrid Threats

Published on September 23, 2018        Author: 
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1. International Law Weekend 2018. International Law Weekend, a prestigious annual international law conference co-sponsored by the American Branch of the International Law Association and the International Law Students’ Association, will take place from 18 – 20 October, at Fordham Law School, and at the New York City Bar Association. For a detailed conference program, please see here.  For information regarding registration, please see here.

2. CfP Edinburgh-Glasgow International Law Workshop. The Edinburgh Institute for International and Global Law of Edinburgh Law School and the International Law and Security Research Group of the Glasgow Law School, will convene the first annual Edinburgh-Glasgow International Law Workshop at the Playfair Library Hall of Old College, the University of Edinburgh, on April 8 – 9 2019. The workshop invites applications for paper presentations in any subfield of international law and with any methodological orientation. Abstracts of not more than 750 words should be submitted by interested applicants to EdinGow2019 {at} ed.ac(.)uk by 15 November 2018. More information can be found online.

3. Legal Resilience in an Era of Hybrid Threats – Conference and Call for Papers. The Exeter Centre for International Law and its conference partners, the European Centre of Excellence for Countering Hybrid Threats and the Geneva Centre for Security Policy, are delighted to invite you to a conference on ‘Legal Resilience in an Era of Hybrid Threats’, to be held on 8 – 10 April 2019 at the University of Exeter. The aim of the event is to explore the utility of legal resilience as an analytical and policy framework for countering the legal challenges presented by gray zone conflict, hybrid warfare and lawfare. The conference organizers invite proposals for papers, to be submitted by 30 November 2018, addressing subjects including the notion of legal resilience; strategies for rendering the international legal system more resilient against contemporary threats; the legal challenges presented by gray zone conflict, hybrid warfare and lawfare; the impact of influence operations and other indirect forms of intervention; and the legal and ethical implications of counter-lawfare. The full call for papers and more information about the event can be found here

Filed under: Announcements and Events
 

Part II: The Partition of the Chagos Archipelago and the Haunting Spectre of the South West Africa Cases

Published on September 21, 2018        Author: 
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[Part II of a two-part post]

When consent has been vitiated

One of the most challenging aspects of partition is proving that its representatives’ consent was vitiated due to duress. In nearly all cases of partition duress, coercion, and even fraud has been alleged by one of the parties. In other words, their consent to the loss of territory was not freely given.

In Ireland, it was argued that the threat of force was employed during the negotiation of the Anglo-Irish Treaty in 1921 to ensure the Irish delegation accepted the option of dominion status against that of a republic (A. Carty, Was Ireland Conquered, 1996, p. 84). It was also alleged that the delegation’s consent to the partition was brought about by deceit because of assurances given to them that primary importance would be given by a Boundary Commission to the ‘wishes of the inhabitants’ in the redrawing of the boundary between Northern Ireland and the Irish Free State when, in fact, the UK never had any intention of interfering with the integrity of the six counties (A. Carty, Was Ireland Conquered, 1996, pp. 135-140).

In British India, it was argued that Mountbatten held a ‘metaphorical gun’ to Mohammad Ali Jinnah’s head when he ‘consented’ to a ‘moth-eaten Pakistan’ that he had spent his whole career opposing. Mountbatten even admitted that he ‘drove the old man quite mad’ by insisting that the logic of partition, if applied to India, must equally apply to the provinces of the Punjab and Bengal (quoted in M. Zafrulla Khan, The Agony of Pakistan, 1974, p. 47). Nehru agreed with Sardar Patel that ‘it might be possible to frighten Mr. Jinnah into cooperation because of the shortness of time available before partition must be completed’ (M. Zafrulla Khan, The Agony of Pakistan, 1974, p. 47). Read the rest of this entry…

 

Part I: The Partition of the Chagos Archipelago and the Haunting Spectre of the South West Africa Cases

Published on September 20, 2018        Author: 
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[Part I of a two-part post] 

The advisory proceedings concerning the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 are over, but an opinion that answers the legal questions raised in the request could have consequences well beyond the Indian Ocean.

Earlier this month, Stephen Allen contributed a post on the self-determination arguments made in relation to the first question asked of the court. Like Allen, I have taken sides in my scholarly work, although unlike Allen, I have argued that self-determination emerged as a customary norm of international law before 1970. As I argued in my article on the arbitration (2010-2015) between the UK and Mauritius (published in volume 19 of The Max Planck Yearbook of United Nations Law, 2016, pp. 419-468), the emergence of a norm prohibiting partition in the decolonization context would have outlawed the division of the archipelago before independence in 1968, unless it could be shown that Mauritius consented to the separation.

In this post, I argue that the legal arguments raised by the Applicants in the South West Africa Cases could be of direct relevance to the opinion, because although the ICJ refused to address the merits, the cases spanned a period of time (1960-1966) that is germane to any contemporary assessment of the legality of the decision to partition the Chagos Archipelago in 1965. While the Applicants did not reference the Colonial Declaration (GAR 1514 (XV) (1960) in their pleadings, they nevertheless argued that international law in the 1960s prohibited partition, demonstrating that there were principles of law at stake that proscribed the non-consensual division of territory.

What remains missing is an authoritative opinion from the world court. Read the rest of this entry…

 

The ‘Security Council Route’ to the Derogation from Personal Head of State Immunity in the Al-Bashir Case: How Explicit must Security Council Resolutions be?

Published on September 19, 2018        Author: 
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Last week, the Appeals Court of the International Criminal Court (ICC, the Court) held hearings in relation to Jordan’s Appeal from a decision of Pre-Trial Chamber (PTC) II holding that it has failed to cooperate with the Court in the arrest and surrender of Sudan’s President, Omar Al-Bashir. As is well known, Al-Bashir is presently subject to an ICC Arrest Warrant for committing war crimes, crimes against humanity and genocide in Darfur, following the referral of the situation by the Security Council (SC) to the Court. He has made a series official visits to Jordan and other states parties to the ICC Statute (the Rome Statute). However, none of those states has dared to arrest him to date. Their principal argument is that Al-Bashir enjoys personal immunities from foreign domestic jurisdiction under treaties and customary international law, that these are not covered by the removal of immunity in Art. 27(2) of the Rome Statute, and are thereby safeguarded by Art. 98 of the Statute.

The hearings, together with the Appeals Chamber’s decisions leading to them, represent a unique moment in the history of international criminal law for two main reasons. First, this is the first time in which the ICC has invited, accepted and heard submissions from leading international law scholars as amici curiae, as well as engaged in direct (and sometimes heated!) oral discussions with them. Secondly, some of the legal and policy issues discussed in the hearings are of fundamental importance to international criminal law and public international law in general. They include questions such as the extent of the SC’s powers, a possible customary international law exception to personal immunities before international criminal tribunals, and the practical importance of preserving such immunities for international peace and security. Thus, watching the hearings online has certainly kept some of us entranced during the entire week.

However, aside from the special role attached to academic commentary and from the systemic issues discussed in the hearings and in the written observations, one question seems to have been at the heart of the debates on Al-Bashir’s immunities. This question is whether the SC can implicitly derogate from personal immunities otherwise applicable under treaties or customary international law, or whether it must do so explicitly. Indeed, all parties and participants seem to agree that the SC has the power to displace personal immunities and other rules of treaty or general international law, except for jus cogens norms. Yet they disagree as to how clear the Council must be in order to do so. Read the rest of this entry…

 

ECtHR Judgment in Big Brother Watch v. UK

Published on September 17, 2018        Author: 
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Last week the European Court of Human Rights issued a highly anticipated blockbuster Chamber judgment in Big Brother Watch v. UK, nos. 58170/13, 62322/14, 24960/15.

This is the first mass electronic surveillance case to be decided against the UK after the Edward Snowden revelations, and it touches upon numerous issues. The judgment is nuanced, complex, and long. It addresses key questions such as the proportionality of bulk interception programmes much more directly and with greater sophistication than the recent judgment in Centrum för Rättvisa v. Sweden no. 35252/08, which was decided by a different Chamber while this case was being deliberated, and which also upheld a bulk surveillance programme (see here for Asaf Lubin’s take on Just Security).

The judgment is too rich to summarize easily, so I will only set out some key takeaways (for an extensive discussion on surveillance and privacy in the digital age, see my 2015 Harvard ILJ piece).

First, and most importantly, the judgment is a mixed bag for privacy activists: while the Court finds that the UK’s surveillance programme under the now-defunct Regulation of Investigatory Powers Act (RIPA) was deficient in important respects and in violation of Article 8 and 10 of the Convention, it at the same time normalizes such mass surveillance programmes. In particular, the Court decided that bulk interception programmes are not categorically disproportionate, as privacy activists have argued. Second, in a similar vein, the Court finds that prior judicial authorization is not indispensable for the legality of bulk interception, again contrary to what privacy activists have argued, even if prior judicial authorization could be seen as best practice (note that under the new 2016 Investigatory Powers Act the UK has moved to a double-authorization system which involves both a minister and an independent quasi-judicial commissioner).

Here are the key paragraphs (warning – extracts from the judgment make this a lengthy post):

Read the rest of this entry…

 

Slavery in Domestic Work: The Potential for State Responsibility?

Published on September 17, 2018        Author:  and
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On 10 September 2018, UN Special Rapporteur on Contemporary Forms of Slavery, Urmila Bhoola, presented her latest report to the Human Rights Council. The report focuses on an often-hidden aspect of modern slavery – the slavery and servitude of “marginalized women workers in the global domestic economy” (para 11). In this post, we highlight key findings of the report and also indicate areas for further exploration, including the potential use of State responsibility.

11.5 million domestic workers are international migrants, which represent 17.2% of all domestic workers and 7.7% of all migrant workers worldwide (para. 31). To give a sense of the scale, in Hong Kong there are 370,000 domestic workers of which 98.8% are women.

The social, cultural and racial biases these women face are often extreme. To give an example, Sondos Alqattan, an Instagram star and makeup artist with over 2.3 million followers, criticised new laws in Kuwait giving Filipino workers one day off per week and preventing employers from seizing their passports. She said, “How can you have a servant at home who keeps their own passport with them? What’s worse is they have one day off every week”.

The UN Special Rapporteur notes that the domestic work sector accounted for 24% of forced labour exploitation in 2017 (para 43). Exploitative practices include psychological, physical and sexual violence; retention of identity documents preventing freedom of movement; withholding of wages; and excessive overtime (para 42).

There are two aspects of the Report that make a particular contribution to the discussion of slavery in domestic work. Read the rest of this entry…