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Appealing the High Court’s Judgment in the Public Law Challenge against UK Arms Export Licenses to Saudi Arabia

Published on November 29, 2018        Author: 
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In May of this year, the Court of Appeal granted leave to appeal the 2017 High Court ruling in Campaign Against the Arms Trade v Secretary of State for International Trade.

The case and the High Court’s 2017 judgment have already received some commentary (see here). Simply put, the case concerns a public law challenge against the government’s continued approval of licenses for arms exports to Saudi Arabia, on the grounds, inter alia, that the Secretary of State’s conclusion that there is not a ‘clear risk that the items might be used in the commission of a serious violation of international humanitarian law’, in the context of the Saudi-led coalition in Yemen, was irrational (criterion 2(c) of the Consolidated Criteria set out in European Council Common Position 2008/944/CFSP and adopted by the Secretary of State as the policy to be followed in granting or refusing export licenses). The High Court found against the Campaign Against the Arms Trade, concluding that the determinations made by the Secretary of State permitting continued export of arms to Saudi Arabia were rational.

The present post focuses on what is submitted is an error of law made both by the government in its determinations as to whether to grant or refuse export licenses and by the High Court in its judgment. Specifically, both the government and the High Court appear to have mistakenly taken the view that a certain subjective mens rea threshold necessarily applies before one can say that there has been a serious violation of international humanitarian law. Read the rest of this entry…

 

How Trump’s Migration Policy Erodes National and International Standards of Protection for Migrants and Asylum Seekers

Published on November 28, 2018        Author: 
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Early this month, 5,600 US soldiers were deployed to the southern border as a response to an approaching migrant caravan consisting of several thousand Central Americans. U.S. President Donald Trump called the advancing group in official statements a foreign “invasion” that warrants deploying up to 15,000 army members to support the border patrol. He further publicly warned that “nobody is coming in” and once more clarified his stance on migration stating that “immigration is a very, very big and very dangerous, a really dangerous topic”. The latest footage of U.S. officers firing tear gas at migrants of the caravan-including at children- that tried to enter the country, is the disturbing result of Trump’s sketched horror scenario of a violent invasion of Central Americans.

This strict stance on migration is just the most recent example, the tip of an iceberg of the Trump administration’s aim to establish, step by step, a migration policy that erodes national and international standards of protection.

The comprehensive new migration strategy seemingly builds on a set of immediate, as well as long-term measures aiming at those who attempt to enter the United States as well as at those who are already within the state’s territory. For example, last month a new immigration policy was introduced that aimed at restricting immigrants from using public benefits, or else they may be illegible for permanent residency later on. This is just one of numerous examples of how the Trump administration severely restricted or just completely abandoned given standards such as the abolishment of the Deferred Action for Childhood Arrivals program, the prevention of dreamers from living and working in the U.S.A., as well as the abrogation of the temporary protective status programs. These turnovers of existing standards affected more than two million regularly residing migrants in the U.S.A. and fostered sentiments of fear, nationalism and division.

Read the rest of this entry…

 

Towards Universality: Activities Impacting the Enjoyment of the Right to Life and the Extraterritorial Application of the ICCPR

Published on November 27, 2018        Author: 
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On October 31st, the Human Rights Committee (HRC) adopted General Comment no 36 on the right to life (GC36, available here) to the International Covenant on Civil and Political Rights (ICCPR/the Covenant). The Comment includes a number of interesting elements including, the introduction of the right to life as the ‘supreme’ right, and the relationship between the right to life and the environment. This post examines the endorsement in GC36 of the notion of ‘impact’ as constitutive of jurisdiction for the purpose of the extraterritorial application of the Covenant.

Impact as Exercise of Jurisdiction

In para. 63 of GC36, the Human Rights Committee adopts the ‘impact’-approach to the interpretation of Art. 6 in conjunction with Art. 2 (1) of the Covenant:

In light of article 2, paragraph 1, of the Covenant, a State party has an obligation to respect and to ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control.  This includes persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner. […]

Readers of this blog will be familiar with the debates on the extraterritorial application of human rights treaties. To quickly recap, the application of human rights treaties Read the rest of this entry…

 

A Second Brexit Referendum – What Makes You Think They Will Have You Back?

Published on November 26, 2018        Author: 
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The call for a second Brexit Referendum is still alive, some say more than ever. It is probably unlikely and, even if it were to take place, there is no certainty that the Remain camp would win. But it is somehow based on the assumption that if such a referendum were held, and the Remainers would win (probably a narrow victory) and that if, as a result, the UK Parliament were to change its mind and elect to remain, that on the basis of this unilateral decision of the UK the status quo ante would be restored and British membership of the Union would continue unabated.

This is very unlikely to be the case.

First there is the legal issue regarding such a unilateral withdrawal of the Article 50 notice.

As is well known, a Preliminary Reference from Scotland will be decided this month in an expedited procedure and before a plenary forum of the ECJ, trying to clarify the legal parameters of a British change of mind whether through a referendum or otherwise.

The Reference definitely has some elements of an Affaire Bidon but I predict the ECJ will not opt for inadmissibility in this case. On the merits it is likely that it will  reject the two ‘bookend’ arguments and instead go for the centre. It is most unlikely that it will hold that once Article 50 notice has been served the process is irreversible and that the only way back, even before the deadline for formal exit arrived, is an Article 49 admission procedure. It is, in my view, equally or even more unlikely that it would hold that the UK could unilaterally withdraw its notice and that, with no more, its Membership would continue unabated. The UK drives everyone crazy for close to three years and then, oops, just as the Clock Strikes One, the Mouse is to run down as if nothing happened?

Read the rest of this entry…

 

UNCLOS, CITES and the IWC – A Tailored International Duty to Cooperate?

Published on November 26, 2018        Author: 
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In October 2018, the Standing Committee (SC) of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITESconcluded that Japan had failed to comply with certain CITES provisions regarding the trade in Appendix I species (namely, sei whales). This blog post seeks to evaluate the relationship that such a conclusion could have on Japan’s duty to cooperate regarding the conservation of marine mammals (as required under Article 65 of the Law of the Sea Convention (UNCLOS)), and the duty to cooperate with non-binding resolutions made by the International Whaling Commission (IWC) – especially in light of the findings in the Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) Case.

The Whaling Case

In 2014, Australia took Japan to the ICJ, alleging that Japan’s Southern Ocean scientific whaling programme (JARPAII) was inconsistent with Article VIII of the ICRW. The Court concluded that JARPAII involved activities that, broadly speaking, could be scientific research but that JARPAII’s design and implementation was not ‘for purposes of scientific research’ as required by Article VIII (para. 227). In arriving at this conclusion, the Court held that Japan has a ‘duty to cooperate’ with the IWC and the Scientific Committee (para. 83). As stated by Meguro, the ICJ effectively shaped the duty to cooperate as a mechanism to bind Member States – who do not support a particular resolution – to the standards/recommendations under IWC resolutions (which, by nature, are non-binding).

Japan’s Recent Relationship with the IWC

In September 2014, the IWC (having regard to the findings in the Whaling Case) adopted a resolution indicating that no further special whaling permits be issued until they had been reviewed by the Scientific Committee and had received recommendations by the IWC. In November 2014, Japan submitted a proposal for NEWREP-A (a new research whaling programme in the Southern Ocean) in which Japan acknowledged that it had ‘taken seriously the Court’s finding that the decision to grant special permits under Article VIII, paragraph 1, of the ICRW, “cannot depend simply on that State’s perception”’. Read the rest of this entry…

 

Announcements: African Yearbook of International Law; University of Liverpool School of Law and Social Justice Workshop; Westminster Law School Event on the Chagos Archipelago; CfP Workshop on The Paths of Change in International Law; CfP Art and International Courts; CIL 2 Year Post-Doctoral Fellowships

Published on November 25, 2018        Author: 
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1. African Yearbook of International Law (AYIL). The Editors of the African Yearbook of International Law are pleased to invite scholarly contributions for its Volume 23. The structure of Volume 23 will consist of the following: a special theme, general articles, notes and commentaries, book reviews and basic documents (mainly African Union resolutions and African Conventions), and a section on State practice on matters of international law. The special theme for Volume 23 will be on “African States and Investment Law and Arbitration – Challenges and Opportunities”. Manuscripts may be emailed to either fatsah.ouguergouz@gmail.comadjovir {at} arcadia(.)edu or mob31 {at} cam.ac(.)uk. The Editors welcome papers covering all areas of public international law, including but not limited to the Special Theme, from both established and new scholars. For reference, the length of articles should normally not exceed forty double-spaced pages. Longer Articles will be accepted if the length is justified by the subject-matter. All articles must be submitted, in an electronic version (preferably in Word), to the Editors not later than 15 January 2019.
 
2. International Law and Human Rights Unit of the University of Liverpool School of Law and Social Justice Workshop. The International Law and Human Rights Unit of the University of Liverpool School of Law and Social Justice is organising a two-day workshop on loyal co-operation with the system of the European Convention on Human Rights and the means of reaction by the European Court of Human Rights when its judgments trigger discontent. The conference is open to both established and early-career scholars and practitioners, including PhD students. Interested participants should provide an abstract of no more than 500 words by 20 December 2018. The call for papers is available online here.  

Read the rest of this entry…

Filed under: Announcements and Events
 

Activating the Third Pillar of the UNGPs on Access to an Effective Remedy

Published on November 23, 2018        Author: 
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The UN Guiding Principles on Business and Human Rights (known as the UNGPs or Ruggie Principles) were developed in 2008 by the UN Secretary General’s Special Representative, John Ruggie, and endorsed by the Human Rights Council in 2011. Comprised of three pillars to ‘protect, respect and remedy’ human rights violations, the third pillar on remedy has often been referred to as the ‘forgotten’ pillar. However, it is now garnering much greater attention.

While momentum around the third pillar is critical to the realisation of the UNGPs, a number of issues still need to be ironed out. One central question relates to Principle 27 which requires states to make ‘effective and appropriate non-judicial grievance mechanisms’ available. In this post, I suggest that non-judicial grievance mechanisms can contribute to access to an effective remedy but they also carry significant risks which are potentially accentuated in the context of businesses. I argue that much greater clarification is needed on when such mechanisms can be used and the standards of justice required of them, if they are to form part of a ‘bouquet’ of effective remedies foreseen by the UN Working Group on Business and Human Rights.

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Filed under: EJIL Analysis
 

Palestine v United States: Why the ICJ does not need to decide whether Palestine is a state

Published on November 22, 2018        Author: 
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Palestine’s institution of proceedings against the United States before the International Court of Justice (ICJ) has already drawn much attention on this blog (see here and here) and elsewhere. A great deal has already been said on Monetary Gold and admissibility. My post will focus on the Article 34(1) ICJ Statute requirement that ‘[o]nly states may be parties in cases before the Court’. Contrary to some arguments that have been made on this blog and elsewhere, I will argue that for the purposes of Article 34(1) the ICJ does not need to decide whether Palestine is a state, let alone weigh the Montevideo criteria. An entity may be a ‘state’ for the functional purposes of certain treaties and procedures created by those treaties, but such procedures have no implications for the substantive legal status of the entity under general international law. I will also argue that Palestine’s access to these procedural treaty mechanisms is UNESCO membership and not the status of a non-member observer state in the UN.

When a treaty uses the word ‘state’

The ICJ proceedings are only open to states. But this does not mean that the legal status of an entity can be determined as a side-effect of the ICJ’s procedural rules. The logic of such an argument would go as follows: the ICJ can only hear cases between states, so if the ICJ exercises its jurisdiction, the parties in the proceedings must be states. This would be an implicit reading of the requirement contained in an international treaty that an entity be a state. Such implicit readings are not uncommon in international legal scholarship.  We indeed often read in leading textbooks that since UN membership is only open to states, this is the ultimate confirmation that a UN member indeed is a state. Read the rest of this entry…

 

The Global Compact for Migration: to sign or not to sign?

Published on November 21, 2018        Author: 
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The Global Compact for Safe, Orderly and Regular Migration (final draft of 13 July 2018) is scheduled for adoption at an intergovernmental conference in Marrakesh in December 2018. But in the run-up to this conference, several states, beginning with the United States already in 2017, now followed by Austria, Hungary, the Czech Republic, and others, have announced that they will  not sign the text. Will refusal to sign be relevant in terms of international law? What is the juridical quality of the Compact, which legal consequences does it have, and which normative “ripples” might it deploy in the future? The controversy over the Compact sheds light on the legitimacy of international law-making processes and on the precarious normative power of international law.

A Brief Glance at the Contents

The Compact consists of four parts. Following the preamble, the first part contains, “Vision and Guiding Principles”. The second part, “Objectives and Commitments” contains 23 objectives, proceeded by a part on “Implementation” and the final section “Follow-up and Review”. The Compact purports to set out “a common understanding, shared responsibilities and unity of purpose regarding migration” (para. 9). The purpose is mainly to secure that migration “works for all” (para. 13).

The Compact’s “guiding principles” are, inter alia, people-centeredness, international cooperation, national sovereignty, rule of law and due process, and sustainable development (para. 15). These are well-established and to a large extent also legally entrenched principles. The 23 “objectives” are partly generally recognised such as saving lives (objective 8), respond to smuggling (objective 9), or eradicate trafficking (objective 10). Some mainly correspond to interests of states of origin (such as promoting transfer of remittances, objective 20), others basically satisfy interests of receiving states (such as facilitating return and readmission (objective 21). In substance, the Compact partly repeats international law as it stands or refers to existing instruments (see notably preamble para. 2), partly contains platitudes, and partly contains novel ideas. Read the rest of this entry…

 

Justiciability of Security Exceptions in the US Steel (and other) Disputes: Some Middle-Ground Options and the Requirements of Article XXI lit. b (i)-(iii)

Published on November 20, 2018        Author: 
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The US – Certain Measures on Steel and Aluminium Products case (US Steel Dispute) has aroused numerous comments in the blogosphere (see e.g. here, here, here, here, here and here) which already give a very good impression of the legal questions involved and of what is at stake at the WTO these days. One of the most controversial legal issues brought up by the case (and by two other recent cases: Russia – Measures Concerning Traffic in Transit (Russia – Transit) and United Arab Emirates – Measures Relating to Trade in Goods and Services, and Trade-Related Aspects of IP Rights; for comments see: here and here) is the justiciability of Article XXI GATT (security exceptions). The question of justiciability, however, has sometimes been portrayed as an either/or question by bloggers: Either justiciability or complete discretion for States. Moreover, commentators have scarcely elaborated on the further requirements of Article XXI para. b (i)-(iii) GATT with regard to the US steel dispute.

The following post shows that there are more options on the table than to allow States full discretion (option 1), or declaring security exceptions justiciable under a limited good faith standard of review (option 2), and that under all but the first option Panels are likely to declare Trump’s tariffs on steel and aluminium imports not to be covered by security exceptions. Still, finding some middle-ground position on justiciability could be useful (politically) to avoid the impression of judicial overreach.

Judicial Review: Several Options

Article XXI GATT (in the case at hand lit. b) seems to allow a Member State to self-judge what it “considers necessary for the protection of its essential security interests”. Security exceptions have scarcely been used in the GATT and earlier WTO era, and unfortunately the meaning of “considers necessary” in Article XXI GATT so far has not been authoritatively elucidated by a Panel or the Appellate Body (AB). Read the rest of this entry…

 
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