magnify
Home 2019 November

To Forget, But Not Forgive: Why the CJEU’s Latest Ruling on Google and the ‘Right to Be Forgotten’ is Not at All a Win for US Tech Giants

Published on November 29, 2019        Author: 

 

Google has recently triumphed in the fight against a worldwide application of the European “right to be forgotten” following the European Court of Justice’s ruling that Google does not have to take down search results revealing sensitive personal information of EU citizens worldwide, rejecting demands by the French Data Protection Authority. The long anticipated judgment by Europe’s top Court in Google v CNIL, delivered on 24th September 2019, was a test of the ‘right to be forgotten’, which allows EU citizens to request, among other things, the removal of search engine results that reveal their personal information. This right is now explicitly recognised in Article 17 of the influential EU’s General Data Protection Regulation (GDPR).

The ruling has been welcomed by US tech giants as an iconic curb of what they see as a ‘European overreach’- extension of its laws beyond borders.  However, not many have noticed that the Court intentionally left a glaring loophole – an opportunity for EU countries to force worldwide de-listing if they deem so fit. In other words, EU countries could still compel Google to de-list beyond Europe, and this decision comes as no surprise in light of the broader context of EU’s pushback against US tech giants.

In the wake of Edward Snowden’s 2013 mass-surveillance revelations about US spying on ordinary citizens and world leaders alike, Europe’s top Court demonstrated leadership by taking a hard line stance on the enforcement of data privacy law, even against other EU bodies. Although many have perceived the latest judgment as a restraint on the Court’s expansive interpretation of EU law, the CJEU  has in fact continued its hard line data privacy crusade with this judgment, which has significant implications for data privacy law, US tech companies, and Internet users. Read the rest of this entry…

 

The Same Thing? Negotiation and Articles 11-13 of the CERD Convention in Ukraine v Russian Federation

Published on November 28, 2019        Author: 

On 8 November 2019, the ICJ issued its preliminary objections judgment in Ukraine v. Russian Federation – see here for an excellent discussion of its importance. This piece focuses on one aspect of the decision, that the “preconditions” of Article 22 of the CERD Convention are alternative rather than cumulative. It looks specifically at the reasoning in the decision, and the understanding that it relies on of the Articles 11-13 inter-state communications procedure before the CERD Committee. It may be recalled that Articles 11-13 applies to all States Parties to the CERD Convention and has an importance beyond the jurisdiction of the Court. In the judgment the right outcome (dispositif) may have been reached, but the reasoning (motif) may be problematic in relation to the Court’s narrow understanding of Articles 11-13 as negotiation.

Article 22 and its alternative/cumulative preconditions

Article 22 of the CERD Convention reads:

Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.

Three principal arguments on the alternative/cumulative question will be highlighted, as they relate to the eventual decision.

First, Read the rest of this entry…

 

Mandatory Derogation from Human Rights in Overseas Armed Conflicts? A Response to the Policy Exchange Proposals

Published on November 27, 2019        Author: 

 

 

A recent paper published by Policy Exchange, Resisting the Judicialisation of War, sets out a range of policy and legislative proposals for the incoming UK government. In this blog post, I raise concerns over three recommendations in the paper.

Contextualising the proposals

In the background to the Policy Exchange paper is the Ministry of Defence (MOD)’s 2016 announcement of a “presumption to derogate” from the European Convention on Human Rights (ECHR), particularly in “future overseas operations”. Derogation is the mechanism built into the ECHR to provide flexibility in times of war or emergency. It enables States to modulate the scope of Convention obligations and take measures consistent with the Law of Armed Conflict (if applicable).

The MOD’s 2016 press release asserted that litigation followed military operations in Iraq and Afghanistan on “an industrial scale”, and that derogation would protect troops from persistent “vexatious claims”. Previous Policy Exchange reports, Fog of Law (2013), Clearing the Fog of Law (2015) and Protecting Those Who Serve (2019), placed the blame for such claims squarely on judicial decisions applying the ECHR to extraterritorial armed conflicts, including Al-Skeini v UK (2011) 53 EHRR 18 and Smith v MOD [2013] UKSC 41.

This resulted in what Policy Exchange calls the ‘judicialisation’ of war. The application of the ECHR to military operations is alleged to hinder commanders by generating risk aversion, leading to the hyperbolic claim that the military risks “defeat by judicial diktat”. The recent paper is the latest instalment in Policy Exchange’s coordinated efforts to sway UK policy in this area.

Derogation is the proposed workaround. Read the rest of this entry…

 

Reconciling new interpretations of the UN Charter with the customary international law on the use of force

Published on November 26, 2019        Author: 

 

In a recent lecture, published as a post on this blog, Professor Dapo Akande analysed the diversity of the rules on the use of force in international law and the implications for the evolution of the law in this area. In this post I wish to address one issue arising from this discussion but not directly addressed in Dapo’s lecture: the impact of changes to the UN Charter on the customary international law rules on the use of force.

In his lecture, Dapo argues persuasively that there are structural difficulties surrounding the evolution of Charter rules, and that these could be avoided if UN members were to interpret the UN Charter through subsequent practice under Article 31(3)(b) VCLT so that a ‘Uniting for Peace’ resolution of the UN General Assembly ‘would be deemed not to be a breach of the prohibition of force under Art. 2(4) in the same way that a Council resolution authorizing force would have that effect.’ However, while this route would avoid the obstacles Dapo discusses that make it difficult to imagine customary international law bringing about a change in the Charter rules on the use of force, it raises the opposite question: how would modification of the Charter rules impact the customary prohibition on force?

As clarified by the ICJ in Nicaragua (Merits, para 179), customary law continues to exist and apply separately alongside even identical treaty provisions. Since the customary and treaty prohibitions exist independently, even if the Charter were to be interpreted so that force authorised through Uniting for Peace was no longer considered a breach of Article 2(4), this interpretation of the Charter wouldn’t automatically change custom to match. A priori, force lawfully authorised by the General Assembly under the Charter would therefore still be in violation of the customary prohibition on force. One could argue that the new treaty rule would simply prevail over the customary prohibition to the extent they conflict, but this seems difficult when the customary prohibition is probably also a jus cogens norm. Indeed, it seems rather that the purported interpretation of the Charter would – by analogy with a new treaty amendment conflicting with jus cogens which would presumably be caught by Article 53 VCLT – be invalid. Read the rest of this entry…

 

The Inter-American Court’s Advisory Function Continues to Boom – A few comments on the requests currently pending

Published on November 25, 2019        Author: 

 

 

Just on the same day that Evo Morales had asked the Bolivians to re-elect him for the fourth time as President, Colombia’s President Iván Duque apparently followed his words with deeds by filing a further request for an advisory opinion to the IACtHR. Already in his opening speech at the occasion of the Court’s last special session held in Colombia this summer, Duque had announced that his government was working on a request asking the Court to clarify whether or not a human right to be re-elected for indefinite terms exists. Then, on the day of the Bolivian elections, it was reported that the request had been submitted. An opinion by the Court contradicting that of the Bolivian Constitutional Court, according to which the possibility to be re-elected indefinitely constitutes a human right, could have destabilized a further Morales government. In light of the most recent events in Bolivia, including the resignation of Morales, the immediate reason for the request seems to be obsolete. But the issue of indefinite re-election remains topical. Not least, as also mentioned here, a Colombian State agent had indicated that the request was also relevant with regard to Nicaragua and Venezuela.

The request on re-election is already the third request currently pending before the Court, highlighting the continuing importance of the Court’s advisory function. Just a few weeks ago, the Court published a request filed by the Inter-American Commission on Human Rights (IACHR) regarding the guarantee of trade union freedom, its relationship to other rights, and its application from a gender perspective. The Commission’s request addresses a very important matter in times of a changing world of employment and also in light of the heavy protests in Ecuador and Chile which are basically rooted in the high rates of social inequality.

This post will focus on the first of the three pending requests, which submitted by Colombia in May. Not only is the May request politically sensitive, but it also raises some very interesting technical legal questions.

In its request of May, Colombia poses the following three questions to the Court: Read the rest of this entry…

 

Announcements: CfP Glasginburgh 2020; CfP Colloquium in Critical International Law; Glasgow Global Security Dialogue; UN Audiovisual Library of International Law; CfA Migration Conference 2020; Positive State Obligations Concerning Fundamental Rights Conference; CfP: Historicization of Int Law and its Limits

Published on November 24, 2019        Author: 

 

1. Call for Papers: Glasginburgh (Glasgow-Edinburgh) 2020. Announcing the keynote speakers for the Glasginburgh Conference June 2020: Priya Lal, Boston College (US) and Margot Solomon, London School of Economics (UK). The conference will be held at the University of Glasgow on Monday 8th – Tuesday 9th of June 2020. Our aim is to explore the relationship between international law and questions of “distribution” – broadly conceived. The two-day event will promote a dialogue about the myriad ways in which current ‘distributions’ inform or even determine the development of international law, and how, in turn, the practices of international legal institutions may impact upon distributions of income, resources, and power in the world. We welcome applications from the critical, doctrinal and visionary traditions of international law enabling a serious scholarly reflection on this topic. Abstracts of 500 words should be sent to glasginburgh {at} gmail(.)com by 30th November 2019. For more information see our full call for papers.

2, Call for Papers: Postgraduate Colloquium in Critical International Law. Durham Law School’s Law and Global Justice research cluster and the Centre for the Study of Colonialism, Empire and International Law at SOAS University of London have issued a call for papers for their second Postgraduate Colloquium in Critical International Law. The colloquium will focus on postgraduate research in international law that takes a critical approach (broadly understood). Relevent approaches might include, for example: feminism/gender studies, queer theory, Marxism, critical race theory, TWAIL/(post-)colonial approaches, international legal history/history and international law, psychoanalysis, structuralism and post-structuralism, post-modernism, law and literature, law and art, realism, law and science, and/or empirical approaches. Further details can be found here. The deadline for responding to the call for papers is 16th December 2019 and the Colloquium will be held at Durham University on 27th April 2020. Read the rest of this entry…

Filed under: Announcements and Events
 
Comments Off on Announcements: CfP Glasginburgh 2020; CfP Colloquium in Critical International Law; Glasgow Global Security Dialogue; UN Audiovisual Library of International Law; CfA Migration Conference 2020; Positive State Obligations Concerning Fundamental Rights Conference; CfP: Historicization of Int Law and its Limits

Green Light from the ICJ to Go Ahead with Ukraine’s Dispute against the Russian Federation Involving Allegations of Racial Discrimination and Terrorism Financing

Published on November 22, 2019        Author: 

 

On 8 November 2019, the ICJ delivered its highly anticipated judgment in Ukraine v Russia on the preliminary objections raised by the Russian Federation with respect to the Court’s jurisdiction and the admissibility of Ukraine’s claims under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the International Convention for the Suppression of the Financing of Terrorism (ICSFT). The ICJ overwhelmingly rejected Russia’s preliminary objections that the Court lacks jurisdiction to entertain Ukraine’s claims under both CERD and ICSFT, and found that Ukraine’s Application in relation to CERD claims was admissible. The ruling was hailed as a victory by Ukraine, as it clearly achieved more than it bargained for at this stage of proceedings, given rather modest provisional measures that were earlier granted by the Court only under CERD (see more here). Ukraine succeeded in avoiding the fate of Georgia, whose case against Russia under CERD – arising out of the 2008 Russia-Georgia war – was rejected on jurisdictional grounds and did not proceed to the merits stage.

The Ukraine v Russia dispute is narrowly limited to Ukraine’s claims under CERD with respect to the situation in Crimea, and claims under ICSFT with respect to the ongoing armed conflict in eastern Ukraine. However, it touches upon some broader highly contested issues related to the unlawful occupation/annexation of Crimea and Russia’s degree of military involvement in the conflict in eastern Ukraine, which are beyond the scope of the judicial inquiry at the ICJ (see more here). The proceedings are complicated by the Parties’ divergent accounts of factual circumstances surrounding the situation in Crimea and eastern Ukraine, which will become even more prominent at the merits stage. In order to determine its jurisdiction ratione materiae under the respective compromissory clauses in both CERD and ICSFT, the Court had to determine whether the acts of which Ukraine complained fall within the provisions of both treaties. Further to this, the Court had to ascertain the fulfilment of the procedural preconditions for the seisin of the Court under both instruments. Read the rest of this entry…

 

The Gambia’s gamble, and how jurisdictional limits may keep the ICJ from ruling on Myanmar’s alleged genocide against Rohingya

Published on November 21, 2019        Author: , and

 

On 11 November, The Gambia filed an Application instituting proceedings and requesting provisional measures at the International Court of Justice (ICJ) in relation to the genocide allegedly committed by Myanmar against the Rohingya (for a first analysis of the Application, see this post by Priya Pillai). As notably reported by The New York Times and The Washington Post, the application is at least in part a personal quest for justice by The Gambia’s Minister of Justice and Attorney General, Abubacarr Marie Tambadou, who acts as The Gambia’s Agent and previously worked for the prosecutor of the International Criminal Tribunal for Rwanda. The Gambia’s application is backed by the Organisation of Islamic Cooperation (of which The Gambia is a member) and its legal team is led by the US law firm Foley Hoag (see here). As we will argue below, the peculiar origins of this quest for justice may well be determinative for the establishment of the ICJ’s jurisdiction.

Regarding the atrocities committed against the Rohingya, the UN Human Rights Council’s Independent International Fact-Finding Mission on Myanmar has found ‘that the factors allowing the inference of genocidal intent are present’ (see here, para 1441). While there appears little reason to disagree with the Fact-Finding Mission’s conclusion, in this post we will not examine substantively whether the atrocities complained of constitute genocide. Instead, we will briefly sketch why it makes sense for The Gambia to seize the ICJ while proceedings relating to the Rohingya are already going on at the International Criminal Court (ICC), after which we will address the request for provisional measures.

Different nature of the ICJ and ICC Proceedings

Just three days after The Gambia submitted its application to the ICJ, Pre-Trial Chamber III of the ICC authorized the Prosecutor to investigate the situation in Myanmar/Bangladesh (see here). As Myanmar is not a party to the Rome Statute, and as the position of China and Russia make a UN Security Council referral highly unlikely (see eg here), the Prosecutor has opened an investigation on her own initiative. The investigation ‘geographically’ focuses on Bangladesh, Myanmar’s neighbouring country to which over 742.000 Rohingya refugees have fled (see here). Bangladesh is a party to the Rome Statute, and accordingly provides a jurisdictional link to the Court. Read the rest of this entry…

 

R v TRA: Article 1 of the Convention Against Torture and the Public Official Requirement

Published on November 20, 2019        Author: 

 

Last week’s decision of the UK Supreme Court in the R v TRA (Appellant) case provides an important confirmation that armed group members can be prosecuted under s134 of the Criminal Justice Act 1988. The decision should be welcomed for providing authoritative guidance on how Article 1 of the UN Convention against Torture should be interpreted, when applied to prosecutions at national level.   Specifically, the judgment addresses the interpretation of the phrase ‘public official or other person acting in an official capacity’, finding that the words ‘other person acting in an official capacity’ can be interpreted to include members of armed groups which exercise governmental control over civilian population in a territory over which they control. It distinguishes these kinds of groups from armed groups whose activities are ‘purely military’. This judgment is to be welcomed as it confirms that members of non-State armed groups can be prosecuted for acts amounting to torture. It is also to be welcomed because the interpretation of Article 1 has long been discussed in academic writings (see Gaeta, Clapham & Gaeta, Fortin, Rodenhauser), and partly pertains to the larger question of when and whether armed non State actors are bound by human rights obligations.

It seems that the majority was mainly persuaded by (i) the ordinary meaning of Article 1 and (ii) the purpose of the Convention to establish a regime for international regulation of ‘official torture’, as opposed to private acts of individuals. According to the court, torture perpetrated on behalf of a de facto governmental authority is clearly a matter of proper concern to the international community and within the rationale of the Convention’s regime. The arguments that lead the Court to this conclusion are too detailed and varied to review in their entirety, but I want to address the following three aspects of the judgment: (i) the Supreme Court’s handling of the ordinary meaning of Article 1 (ii) its interpretation of the practice of the Committee Against Torture and (iii) the consequences of the judgment on the relationship between IHL and IHRL.

Ordinary Meaning of Article 1

In several different places in the judgment, the Court made clear that it was not convinced by the appellant’s argument that only persons acting for or on behalf of a State can perpetrate torture. Read the rest of this entry…

 

International Law and Maritime Terrorism

Published on November 19, 2019        Author: 

 

The death of the Islamic State’s (IS) leader (27 October 2019), Abu Bakr al-Baghdadi, in a US operation in Syria has again put international terrorism at the centre stage. Precisely, this blog post discusses a manifestation of international terrorism: maritime terrorism. As evidenced below, analyses of maritime terrorism are relevant in international law and policy. Yet, maritime terrorism has received limited attention, arguably because most terrorist attacks take place on land or aircrafts. This post aims to draw attention to this key and topical issue and has two parts: a discussion on the need to create a category of maritime terrorism as an international crime, and an analysis of difficulties related to the definition of maritime terrorism as an international crime. Despite its focus on maritime terrorism, the post also applies to international terrorism at large.    

Urgency of creating a category of maritime terrorism as an international crime

Two reasons arguably demand the crafting of maritime terrorism as an international crime. A first reason is that international terrorist groups such as the IS and, sometimes, allegedly state-sponsored individuals have committed a number of maritime terrorist attacks during the last decades, leading to related state and international practice. For instance, on 23 September 2019, a group affiliated with the IS in the Philippines aboard two pump boats ambushed and seized three fishermen off the coast of East Sabah (Malaysia). Indeed, maritime terrorist activities in the Malacca and Singapore Straits have prompted The Philippines, Indonesia and Malaysia via a Trilateral Cooperative Agreement (2017) and ASEAN to act. There is also a bilateral agreement between the Philippines and India (October 2019) aimed to strengthen their ties to ensure maritime security, particularly as for maritime terrorism. Earlier this year (May 2019), four Saudi oil tankers, one bound for the US, were attacked following warnings that Iran or proxies could target shipping although the Security Council (SC) fell short of blaming Iran. These examples illustrate the current relevance of analyses of maritime terrorism under international law. It was indeed a maritime terrorist attack that prompted the adoption of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) (1988). The Achille Lauro, an Italian-flag cruise ship, was seized by Palestine Liberation Front members (October 1985). They held the ship’s crew and passengers as hostages, threatened to kill them, and demanded Israel to release 50 prisoners to spare the hostages. In the post 9-11 era, a number of maritime terrorist attacks have occurred, including Al-Qaida attacks against the US destroyer Cole in Yemen (2000), a French oil tanker in Limburg (2002), and an offshore oil terminal in Iraq (2004), as well as an IS-affiliated group’s attack on an Egyptian vessel in the Mediterranean Sea (2015). Read the rest of this entry…

Filed under: Terrorism