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A Hypothetical on Deprivation of Liberty and Torture

Published on May 31, 2019        Author: 

In light of today’s rather extraordinary statement by Prof. Nils Melzer, the UN Special Rapporteur on torture and other forms of cruel, inhuman or degrading treatment or punishment, that Julian Assange has been subjected not only to arbitrary deprivation of liberty, but also to a sustained campaign of collective persecution, the results of which were tantamount to psychological torture, here’s a brief hypothetical that can hopefully shed some light on Assange’s legal situation:

Variant 1: A is a human rights defender living and working in Dystopia, a highly authoritarian police state. He has helped countless people in his work, to much international acclaim. One day he receives reliable information that a Dystopian court has ordered his arrest, on charges of sedition, and that if convicted (which seems very likely) he could spend many years in prison. A decides to evade the police seeking to arrest him.  With the help of friends, A finds refuge in a cave in a remote location. He spends 7 years in that cave, with very little human contact, fearful that if he ever left the cave the police would find him and arrest him. The years take their toll. A starts suffering from a number of physical ailments. Even worse, the virtually total separation from his family, friends and the outside world eventually leads to serious impairment to his mental health, including severe anxiety and depression. After 7 years, the Dystopian police discover A’s hiding place and arrest him.

Questions: (1) While A was in the cave, was he subjected to a deprivation of liberty by the state of Dystopia? (2) If so, was that deprivation of liberty arbitrary? (3) In any event, do the accumulated consequences to A’s mental and physical health, due to the extended period of time he spent in the cave hiding from Dystopian authorities, qualify as torture or cruel, inhuman or degrading treatment of A on the part of the state of Dystopia?

Variant 2: R is the highest-ranking general of the army of a separatist regime in Anarchia, a country ravaged by a sectarian civil war. The International Criminal Court has issued a warrant for R’s arrest for war crimes and crimes against humanity on a massive scale; he is suspected of leading a campaign of ethnic cleansing which claimed the lives of tens of thousands of people. After the Anarchian civil war ends in the victory of his opponents, R decides to go into hiding. With the help of friends, R finds refuge in a cave in a remote location. He spends 7 years in that cave, with very little human contact, fearful that the Anarchian government authorities will arrest him and send him to The Hague for trial. The years take their toll. R starts suffering from a number of physical ailments. Even worse, the virtually total separation from his family, friends and the outside world eventually leads to serious impairment to his mental health, including severe anxiety and depression. After 7 years, the Anarchian police discover R’s hiding place and arrest him.

Questions: (1) While R was in the cave, was he subjected to a deprivation of liberty by the state of Anarchia? (2) If so, was that deprivation of liberty arbitrary? (3) In any event, do the accumulated consequences to R’s mental and physical health, due to the extended period of time he spent in the cave hiding from Anarchian authorities, qualify as torture or cruel, inhuman or degrading treatment of R on the part of the state of Anarchia? (4) If you have answered any of the preceding questions differently than their counterparts in Variant 1, please explain why you have done so.

 
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The Distinction between Military and Law Enforcement Activities: Comments on Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine V. Russian Federation), Provisional Measures Order

Published on May 31, 2019        Author: 

International Tribunal for Law of the Sea (ITLOS) issued a provisional measures order to Russian Federation to release three Ukrainian naval vessels and their servicemen on 25 May 2019. In deciding that the Annex VII arbitral tribunal would have prima facie jurisdiction as required under Article 290(5) of United Nations Convention on Law of the Sea (UNCLOS), the Tribunal held that the case was not “disputes concerning military activities” as provided under Article 298(1)(b) (see Kraska).

This is an important decision considering that there is no settled definition of “military activities” which allows state parties to be exempted from the compulsory dispute settlement procedure under UNCLOS. This is the first time that ITLOS held its interpretation on the former half of Article 298(1)(b) (while the latter half was dealt in the provisional measures order in Arctic Sunrise, para.45), and South China Sea arbitration case of 2016 before Annex VII Arbitral Tribunal remains the only precedent where a third-party dispute settlement institution held its interpretation of the same text.

There seems to be a common understanding that in this order, the Tribunal interpreted the scope of the “military activities” under Article 298(1)(b) quite narrowly, if not diminished, and thereby lowered its jurisdictional bar. While assessments of this decision have already been posted (see Kraska, Schatz), this post adds some comments on the legal framework that the Tribunal relied upon.

Preliminary Remarks

One thing that should be kept in mind is that, since it is a provisional measures order, it suffices if the provisions invoked by the applicant prima facie appear to afford a basis on which the jurisdiction of the Annex VII arbitral tribunal could be founded, and need not definitively satisfy itself that the tribunal has jurisdiction over the dispute (Order, para. 36; see also ARA Libertad, para. 60). Judge Lijnzaad’s commented that the questions of the applicable law and of whether the issues raised are solely to be understood as being related to the interpretation and application of UNCLOS were left to Annex VII arbitral tribunal at a later stage, as they are “matters that go well beyond the prima facie analysis of a request for provisional measures (Declaration, Lijnzaad, para.8).” Read the rest of this entry…

 

Passportisation: Risks for International Law and Stability – Response to Anne Peters

Published on May 30, 2019        Author: 

Introduction

Anne Peters’ EJIL Talk! blog post Passportization: Risks for International Law and Stability regarding actions of the Russian Federation as regards applications for Russian nationality for persons living in certain parts of Ukraine (see here and here) raises important and interesting questions. With respect I believe that (i) the post overstates the assistance available from the international law concerned directly with nationality, (ii) evaluating the extent of that law is a worthwhile endeavour, and (iii) something like Prof Dr Peters’ final conclusion may be ultimately reached by a different route, by reference not to the particular principles related to nationality in international law but to the actions of the Russian Federation taken in their overall factual context.

International law re nationality: background

Nationality is closely linked to sovereignty, and nationality issues may well become a source of conflict between or amongst States. Since the Advisory Opinion of the Permanent Court of International Justice in Nationality Decrees Issued in Tunis and Morocco on 8 November 1921, Advisory Opinion, 1923, PCIJ (ser B) No 4 (7 February 1923) questions regarding nationality are no longer considered, as was often the case earlier, to lie exclusively within the ambit of each State. The 1930 Convention on Certain Questions Relating to the Conflict of Nationality Laws records respectively at article 1 that:

It is for each State to determine under its own law who are its nationals’ and that nationality ‘shall be recognised by other Statesso far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.

By article 2:

Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State.

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20 Years of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in Armed Conflict: Have All the Gaps Been Filled?

Published on May 29, 2019        Author: , and

Just over twenty years ago, on the 26th of March 1999, the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (hereafter Second Protocol) was adopted. Following the Balkan wars, there was a sense that the 1954 Hague Convention, the key treaty protecting cultural property, was not entirely fit for purpose. It had for example left the concept of ‘imperative military necessity’ undefined, leaving too much leeway for interpreting the way it should be applied on the ground. The Second Protocol attempted to clarify this exception to the obligation to respect cultural property in armed conflict by narrowing its scope, i.e. only permitting an act of hostility against cultural property if that object was made, by its function, a military objective and if there is no feasible alternative available to obtain a similar military advantage (Art 6(a) Second Protocol). It added that the use of cultural property in a manner that puts it at risk of damage or destruction is only possible for as long as there is no other means to gain a similar military advantage (Art 6(b) Second Protocol). Finally, it added that only commanding officers may invoke ‘imperative military necessity’ (Art 6(c) Second Protocol).

Importantly, the Second Protocol devised a new form of additional protection. The system established under the 1954 Hague Convention allowing states parties to request ‘special protection’ for a limited range of buildings (refuges sheltering cultural objects from armed conflict, centres containing monuments, and other immovable cultural property of great importance) had not garnered much success. While the advantage to being placed under special protection is clear, with the property benefitting from immunity, i.e. that the States parties must refrain from any act of hostility against it and from any use of it or its surroundings for military purposes which could turn the property into a military objective, only Vatican City and a small number of refuges had been entered on the International Register of Cultural Property under Special Protection’ by the time the Second Protocol was being drafted. The Second Protocol tried to address the failure of the special protection system by replacing it with that of ‘enhanced protection’, which has the ability to encompass many more properties : any movable or immovable property can now be considered and there is no longer any requirement for the property to be situation at a sufficient distance from industrial centre or potential military objectives, a major obstacle to the listing of any property situated in or near a city (Art 10 Second Protocol). Read the rest of this entry…

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New Issue of EJIL (Vol. 30 (2019) No. 1) – Now Published

Published on May 29, 2019        Author: 

The latest issue of the European Journal of International Law (Vol. 30 (2019) No. 1) is now out. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access articles in this issue are Martti Koskenniemi’s Imagining the Rule of Law: Re-reading the Grotian ‘Tradition’ and Hannah Woolaver’s From Joining to Leaving: Domestic Law’s Role in the International Legal Validity of Treaty Withdrawal. EJIL 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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The EU – A Community of Fate, at Last; Vital Statistics

Published on May 28, 2019        Author: 

The EU – A Community of Fate, at Last

I have great sympathy for the outburst of Donald Tusk on special places in Hell. I believe I was just as harsh or even worse in writing about the Cameron folly. At the time of writing, the final act in the Brexit farce is still unfolding. I am one of those Europeans who genuinely regret the departure of the United Kingdom – and I am not thinking just of the material consequences, as most are prone to do. A Europe without the UK is diminished. But I also respect the sovereign decision of the British people and, equally, I will of course respect a sovereign decision to change course, should that happen. Responsibility for the current shambles rests primarily on the very issue which so taxed Tusk: going into the referendum without any serious governmental assessment of the hows and whats and whens.

Some responsibility also falls on the Union. I thought that the decision to postpone any discussion of future relations before the divorce terms were settled wasted a precious year of joint reflection, negotiations and preparations. I thought then and still think that there was no reason not to run both tracks in parallel so as to avoid the very crunch that we now face. In private, some European leaders have admitted such to me.

And finally, I continue to find it not credible that the combined public authorities of the Union, the UK and the Republic of Ireland cannot come up with a Frontstop solution on the lines proposed here, thus diffusing the most explosive stumbling block for some semblance of an orderly exit. Read the rest of this entry…

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EJIL at 30; The Birth of EJIL

Published on May 28, 2019        Author: 

Some things never seem to change. It was, I believe, with a keen eye on emerging talent, that we published Martti Koskeniemmi as the lead article in Volume I, Issue 1 of EJIL. We thought it was appropriate when we celebrated our 20th anniversary to invite him to revisit what had by then become a classic. And for our 30th anniversary we had known for some time that we would invite Koskenniemi to be the author of our annual Foreword article. Have we lost our keen eye for emerging talent? I do not think so (see our Vital Statistics below). Koskeniemmi is like a good wine or spirit that loses nothing of its bite and yet offers a particular savour and mellowness as it ages.

We debated how to mark EJIL’s 30th anniversary: after all, we published a special issue at 20 and another celebration at 25. I looked at my Editorial for our EJIL at 20 issue. In some ways, it is a bit like all living creatures. There is something in their defining characteristics that remains constant. There is not much that I would add to that Editorial.

Still, there has been some innovation in the last 10 years: Think EJIL: Talk! (celebrating its 10th Anniversary) EJIL: Live!, The Foreword, Roaming Charges and the Last Page, the Debates, and more.

For the sake of nostalgia we reproduce here the earliest letter we can find from the birth of EJIL. Please be sitting when you take a look and kindly suppress the guffaws. (Yes, what happened to the English/French idea…?) It was all in earnest and good faith. But has your life turned out to be as your parents thought and maybe hoped when you were born? Read the rest of this entry…

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EJIL Vol. 30 (2019) No. 1: In this Issue

Published on May 27, 2019        Author: 

This issue opens, as noted in the introductory Editorial, EJIL at 30, with Martti Koskenniemi’s Foreword.

In our Articles section Valentina Vadi focuses on the evolving field of international legal history, exploring the adequate scale and perspective in this realm and stressing the importance of a pluralist, inclusive approach based on micro-histories in contrast to the still prevailing macro-histories. Hannah Woolaver analyses the intricate interplay between the domestic and international levels with regard to states’ treaty consent both in relation to treaty entry and exit. Focusing on three prominent examples – Brexit, the possible US abandonment of the Paris Agreement, and South Africa’s potential departure from the International Criminal Court, she fills a research lacuna regarding international legal recognition for domestic rules of treaty withdrawal and argues for an invalidation of withdrawal in the event of manifest violation of domestic law. Claire Jervis concludes this section with her article, which scrutinizes the questionable substantive-procedural dichotomy in international law. Taking the International Court of Justice’s famous Jurisdictional Immunities case as a starting point, she points towards the fallacies inherent in this binary approach.

We introduce a new occasional Series – The Theatre of International Law – with a piece by Lorenzo Gradoni and Luca Pasquet, ‘Dialogue concerning Legal Un-certainty and other Prodigies’. Further submissions in this vein are welcome. Read the rest of this entry…

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Did ITLOS Just Kill the Military Activities Exemption in Article 298?

Published on May 27, 2019        Author: 

In a May 25, 2019 interlocutory decision, the International Tribunal for the Law of the Sea (ITLOS) prescribed provisional measures in the case brought by Ukraine against Russia, ordering Russia to release three Ukrainian naval vessels and 24 Ukrainian service members seized on November 25, 2018 in an incident in the Kerch Strait. During the incident last fall, Russian Coast Guard forces, operating in concert with a Russian naval corvette and a military aircraft, fired on two Ukrainian warships and a naval auxiliary as they attempted to transit the strait against the orders of Russian authorities. The ships and their crews were captured and remain in detention in Russia, charged with violating Russian criminal law.

On April 29, Ukraine filed a case with ITLOS requesting provisional measures to order their immediate release. Such measures are authorized under article 290 of the United Nations Convention on the Law of the Sea (UNCLOS) in urgent situations to prevent a real and imminent risk of irreparable prejudice to the rights of a party, in this case Ukraine. Article 290(5) permits such measures before the merits of the case so long as the Tribunal has prima facie jurisdiction in the case. The key question was whether the Russia’s operation constituted a “military activity,” and was therefore exempt from jurisdiction in accordance with a previous Russian declaration under article 298 of UNCLOS. The Tribunal determined that Russia’s operations were not a military activity, but the decision is likely to generate unintended consequences.

The ITLOS order has effectively diminished the military activities exemption which will give pause to the 27 nations that have made such declarations, including China, France, Norway, Denmark, and the United Kingdom – and in the future, most likely the United States, which intends to make such a declaration once it accedes to the Convention. (The states are identified in paragraph 11 of Judge Gao’s separate opinion). In a decision that suggests outcome-based legal reasoning to constrain Russia, ITLOS questions the viability of the military activities exemption based on any rationale.

As part of its analysis for jurisdiction, the Tribunal avoided a determination on whether there was an armed conflict between the two states, as would appear from the application of the Geneva Conventions in article 2 common, and as I suggested in an earlier piece. Instead, the ITLOS order accepts without analysis that Ukraine and Russia are interacting during a time of peace, a dubious assumption. In doing so, the Tribunal vindicates two important rights that will be welcomed by maritime powers: sovereign immunity of warships and other government vessels and the peacetime right of freedom of navigation by Ukrainian military vessels. But in reaching this conclusion, the Tribunal diminished the military activities exemption. In a departure from the broader understanding of military activities evident in the 2016 Philippines v. China arbitration, the Tribunal found that the confrontation over innocent passage was a navigational issue, rather than one concerning a military activity, because innocent passage is a right enjoyed by all ships. The Tribunal also determined that Russia’s temporary suspension of innocent passage declared conveniently to halt the transit of Ukrainian warships was a law enforcement activity rather than a military activity. These factors led the Tribunal to conclude that Russia’s actions were “in the context of a law enforcement operation rather than a military operation.”

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Announcements: CfA Hamburg Young Scholars’ Workshop; Feminist/Gendered Perspectives on Global Football Governance; CfP – Crisis of Multilateral International Order; Regional ILA Conference, Slovenia; Edinburgh Law School Teaching Fellow Vacancy; SOAS Executive Course in Public International Law; ELGS Summer Intensive; Chatham House Conference, The Legacy of Kofi Annan; CfP ILA Regional Conference

Published on May 26, 2019        Author: 

1. Call for Abstracts: 3rd Hamburg Young Scholars’ Workshop in International Law. The deadline to submit an abstract for the 3rd Hamburg Young Scholars’ Workshop in International Law held from 20 – 21 September 2019 at the University of Hamburg is approaching.  Abstracts are accepted until 1 June 2019 to  workshop-PIL {at} uni-hamburg(.)de. For further information, see here.

2. Symposium on Feminist/Gendered Perspectives on Global Football Governance and FIFA. The Jean Monnet Center for International and Regional Economic Law and Justice at NYU School of Law will host a symposium on 24 – 25 February 2020 to explore feminist/gendered perspectives on global football (soccer) governance and the Fédération Internationale de Football Association (FIFA). The Symposium will aim to illuminate and nuance the relationship between gender and power within the transnational regulatory system that governs football (with FIFA at its helm); to identify specific gendered implications of existing governance structures, rules and procedures; and to consider innovative ideas for feminist reform or revolution. The deadline for abstracts is 15 July 2019. Further details about the symposium and submission process can be found here.

3. Call for Papers: The Crisis of Multilateral International Order: Causes, Dynamics and Consequences. The European Society of International Law, the Warsaw School of Economics, and the Institute of Law Studies of the Polish Academy of Sciences have issued a call for papers for a conference on “The crisis of multilateral international order: causes, dynamics and consequences,”. The conference will take place on  22 – 23 November 2019, in Warsaw (Poland).  Paper proposals, no longer than 250 words, should be sent to Lukasz Gruszczynski (lukasz [dot] gruszczynski [at] gmail [dot] com), Marcin Menkes (marcin [dot] menkes [at] sgh [dot] waw [dot] pl) and Paolo D. Farah (paolo [dot] farah [at] glawcal [dot] org [dot] uk), not later than 12.00 CET on 5 July 2019. All submissions need to be accompanied by a short CV (no longer than 2 pages). Selected speakers are expected to submit extended outlines (8-10 pages) of their papers before the conference. The call, with all technical details, is available here.

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