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N.A. v. Finland – On the quality of the national authorities’ risk assessment and what the authorities should learn from the case

Published on December 17, 2019        Author:  and

 

On 14 November 2019, the European Court of Human Rights delivered a judgement in the case N.A. v. Finland (application no. 25244/18). The ECtHR found that Finland had violated Articles 2 and 3 of the European Convention on Human Rights when assessing an Iraqi man’s asylum application. Having exhausted all domestic remedies, the applicant’s father, an Iraqi man, returned to Iraq and was shot dead shortly after his return.  In N.A., the Court was not convinced that the quality of the assessment conducted by national authorities satisfied the requirements under Articles 2 and 3 of the Convention (§ 83). The case at hand was given unanimously by the first section of the Court in a relatively quick pace of time, which also gives weight for the message the Court aims to signal with its judgement.

The Facts

The applicant’s complaint was that the expulsion of her father, Mr A, violated Articles 2 and 3 of the Convention. Furthermore, the daughter complained that her father’s violent death had caused her considerable suffering under Article 3 of the Convention. The daughter claimed that the Finnish authorities (Finnish Immigration Service and the national courts) had not undertaken the risk assessment with necessary diligence (§ 43).

The applicant submitted that Mr A had been at risk not only because of his religious background as a Sunni muslim, but also due to his employment history; disagreement with a person who allegedly belonged to the Badr Organisation; a shooting incident at Mr A’s car; and a car bomb explosion which the applicant claimed had been targeted towards Mr A. The Finnish national authorities accepted that a risk could exist as a result of his employment history as a major in the army under Saddam Hussein and later on in an American logistics company. However, they did not agree that a risk occured as a result of the factors put forward i.e. the disagreement, shooting incident nor the car bomb explosion. Ultimately, the Finnish authorities regarded that the risk towards Mr A was improbable and that he would not personally be targeted but that the events were rather explained by the general security situation in Baghdad (§ 5-18).

Mr A applied for a stay on removal, which was not granted by the Supreme Administrative Court. Therefore, the removal order was enforceable. As a consequence, Mr A applied for assisted voluntary return to Iraq (§ 19). Mr A was granted the assistance and he thus left Finland on 29 November. His leave to appeal to the Supreme Administrative Court was rejected on 30 November, a day after his departure from Finland.

In December, the applicant received information from the neighbours of her relatives that her father, Mr. A, had been killed as a result of shots to the head and body (§ 22). Read the rest of this entry…

 
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Favourite Readings 2019 – Couch Vacation

Published on December 16, 2019        Author: 

 

As in previous years, EJIL’s Review Editor, Christian J. Tams, has invited EJIL board members and (associate) editors to offer short reflections on their favourite books of the year 2019. No strict rules apply — the posts are meant to introduce books that left an impression, irrespective of their genre. Today we have selections from Johann Justus VaselYou can read all the posts in this series here.

 

When reflecting towards the end of the year on the piles of essays and books one has waded through, my limited powers of recollection force me to think that many works are ephemeral or at least fungible. So what was actually a “good read”? It’s hard to spell out the criteria, and maybe the term is also misleading. In my understanding a work qualifies to be a “good read” if I deem it to have a larger and lasting impact, if it changes or enriches my perspective. This year I selected three books from the political science arena, but they all elucidate important legal aspects. I hope that you will find them as meaningful as I do.

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Individual and NGO Access to the African Court on Human and Peoples’ Rights: The Latest Blow from Tanzania

Published on December 16, 2019        Author: 

 

Recently, reports emerged (here and here) that the Tanzanian government withdrew its declaration allowing individuals and NGOs to directly submit applications against it at the African Court on Human and Peoples’ Rights (AfCHPR). Tanzania’s Minister for Foreign Affairs and East African Cooperation Prof. Palamagamba Kabudi signed the notice of withdrawal on 14 November 2019, and the African Union Commission received it on 21 November 2019.

Beyond the official withdrawal notice, the Tanzanian government has not made any additional statements clarifying or justifying its decision. Based on the timing, some have implied the withdrawal could be connected to a recent case (Ally Rajabu and Others v. United Republic of Tanzania) concerning Tanzania’s mandatory death sentence for murder convictions. However, considering the Court’s many judgments against Tanzania over the years (discussed below), it is more likely that this decision was in the making for quite some time.

The human rights community has been swift in its response. 20 civil society organizations issued a joint statement and the United Nations Office of the High Commissioner for Human Rights tweeted to condemn Tanzania’s decision and urge the government to reconsider.

While Tanzania is still a member of the African Court, withdrawing its declaration allowing individuals and NGOs to bring cases against it is significant not only for Tanzanians’ human rights protections, but also for the African Court as an institution. Cases against Tanzania account for a major portion of its caseload, and Tanzania—the Court’s host state—is the second state to withdraw this declaration.

Article 34(6) declarations for individual and NGO access to the African Court: the main pipeline for cases Read the rest of this entry…

 
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Announcements: Vacancy at the International Nuremberg Principles Academy; Custom and International Investment Law Conference; When Blockchain Meets Arbitration Conference

Published on December 15, 2019        Author: 

 

1. Vacancy at the International Nuremberg Principles Academy. The International Nuremberg Principles Academy (Nuremberg Academy), located in Nuremberg, the birthplace of modern international criminal law, is a non-profit foundation dedicated to the promotion of international criminal law and human rights.  The Nuremberg Academy is seeking to recruit a Project Officer with a special focus on working on the research project “Length of the Proceedings at the International Criminal Court”. For more information please see here.  

2. Conference: Custom and International Investment Law. On 23-24 September 2020 the Washington College of Law will hold a conference on Custom and International Investment Law. The conference will focus on the issues relating to the interaction between customary international law and international investment law, both from a theoretical and a practical perspective. It will bring together leading academics, international judges/arbitrators and other practitioners. The deadline for the submission of abstracts is 1 April 2020. More information can be found here.

3. Conference: When Blockchain Meets Arbitration. This conference, When blockchain meets arbitration: the birth of decentralised justice” will take place on 31 January 2020 (9am-5 pm). It is organised by the Centre for European Law and Internationalisation (CELI). The conference explores the nascent concept of decentralized justice – that is to say, arbitration on a blockchain. A panel of speakers will discuss the interplay between blockchain and the law by conceptualizing smart contracts as legal constructs, including means to resolve smart contracts disputes. Taking Kleros as a case study, the discussion will then focus on the latest developments in both the theory and the practice of blockchain arbitration as well as its relationship with online arbitration. Bookings can be made here

 
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New EJIL: Live! Interview with Hala Khoury-Bisharat and Michael A. Becker

Published on December 15, 2019        Author: 

 

In this episode of EJIL: Live! Sarah Nouwen, Editor-in-Chief of EJIL, speaks with Hala Khoury-Bisharat, Lecturer in law, Ono Academic College School of Law, Haifa, Israel and Michael A. Becker, Adjunct Assistant Professor, Trinity College Dublin, about the Symposium on International Commissions of Inquiry, which appears in EJIL’s 30:3 issue. Michael Becker first speaks about the motivation of the organizers – Doreen Lustig of Tel Aviv University, Sarah Nouwen and himself – to develop a project on Commissions of Inquiry (CoIs) and more specifically why they framed the project in terms of the difference that such commissions make. Hala Khoury-Bisharat then introduces her case study in the Symposium on the Goldstone Inquiry in Israel and the unintended backlash effects it produced for human rights organizations in the country. As the first Palestinian Israeli woman to hold a professorial position in Israel, she then elaborates, on a more personal note, on the obstacles that she, as a member of a minority in Israel, had to face and overcome in her career. The interview concludes with some reflections by Michael Becker on the possible future directions for international commissions of inquiry. The interview was recorded at the Lauterpacht Centre for International Law. Thanks are given to the Lauterpacht Centre and to Pembroke College, Cambridge, for making the filming possible.

 
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The Challenges for the ICJ in the Reliance on UN Fact-Finding Reports in the Case against Myanmar

Published on December 14, 2019        Author: 

 

This past week’s provisional measures hearing in the case against Myanmar at the International Court of Justice (ICJ) made for a remarkable spectacle (see here, here, and here). Acting as the head of her country’s delegation, Nobel Peace Prize winner Aung San Suu Kyi sat silently as The Gambia’s legal team laid out its case alleging violations of the 1948 Genocide Convention, including brutal descriptions of the atrocities that have been exacted upon the Rohingya minority. When Aung San Suu Kyi addressed the Court herself, she pointedly did not utter the word “Rohingya”—except in a sole reference to the Arakan Rohingya Salvation Army, an insurgent group that Myanmar places at the center of what it frames as an internal armed conflict. Instead, she asked the Court to reject the provisional measures request and to resist the efforts by The Gambia and others to “externalize accountability” for alleged war crimes, leaving Myanmar to addresses these matters itself (CR 2019/19, pp 17-18, paras 24-25) .

In brief, The Gambia accuses Myanmar of engaging in a systematic policy of oppression and persecution against the Rohingya, a Muslim minority in a predominantly Buddhist country, that reaches back decades. Based on the Application, the ICJ will be asked to focus on military campaigns (termed “clearance operations” by Myanmar) carried out against the Rohingya since 2016, which are estimated to have caused more than 10,000 deaths and more than 700,000 people to seek refuge in Bangladesh. This is not the first time that a non-injured State has sought to enforce obligations erga omnes partes at the ICJ, but it is the first such case brought under the Genocide Convention.

I wrote previously about the possibility of an ICJ case against Myanmar and some of the attendant challenges. This post aims to highlight a specific challenge that these proceedings will pose for the Court: The Gambia’s extensive reliance on UN fact-finding reports, combined with the absence of prior or parallel international criminal proceedings relating to these events. Read the rest of this entry…

 

JHH Weiler, Co-Editor in Chief, in Conversation with Professor Wojciech Sadurski

Published on December 13, 2019        Author: 

One of the more ‘elegant’ ways of restricting freedom of political speech and academic freedom is to use libel and defamation laws. It has increasingly become the weapon of choice of various political actors and regimes. Nobody would gainsay that academics may libel others and that politicians can be libelled and have the right to have their names and reputations vindicated.  But, in my view, the proper forum for such is a civil court in an action between individuals. Even then, excessive legal costs and outlandish damages (the UK is notorious for such) may produce an unwarranted chilling effect.

It becomes particularly alarming and at times pernicious when a libel or defamation allegation for statements made in the arena of political contestation is transferred from a private civil action to a public criminal one. To be subject to the opprobrium resulting from a criminal conviction as well as criminal sanctions raises the stakes by several registers and the chilling effect risks becoming a freezing effect.

The fact that countries with impeccable democratic credentials like France regularly use the criminal law in this manner does not kosher this particular pig. EJIL and its Editor had to stand trial for criminal defamation defending academic freedom. It was not pleasant.

Where it is used, we expect courts to understand the huge stakes involved and whilst affording protection to reputations unjustly sullied, not allowing themselves to become complicit in undue restriction of academic freedom and freedom of expression in the political arena, the life breath of democracy. 

Robust political contestation necessitates a wide latitude to ‘words which offend’. I have googled, to give by one example, the expression “bunch of criminals” – producing over one million hits. It, or similar broad brush expressions, have been used endlessly to, say, characterize the White House, the Netanyahu government, the British Labor Party and other political bodies with understandable impunity as part and parcel of the aforementioned robust political contestation.

Wojciech Sadurski, is a renowned professor of public law, well known to readers of EJIL and ICON (he is, inter alia, a Council member of ICON-S and Board Member of ICON, the sister journal of EJIL). He has been  a colleague of mine in more than one institution and, full disclosure, a friend of many years despite our several intellectual and academic disagreements (Wojciech articulated some of the sharpest criticism of my book A Christian Europe, to give but one example). He is a critic of the current government of his native Poland, some would say an outspoken critic, and author of Poland’s Constitutional Breakdown published this year by OUP.

Recently he stood trial for libel in Warsaw. I thought it would be of interest to interview him for our readers.

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Favourite Readings 2019 – What IS the Real Price of Development?

Published on December 13, 2019        Author: 

 

 

As in previous years, EJIL’s Review Editor, Christian J. Tams, has invited EJIL board members and (associate) editors to offer short reflections on their favourite books of the year 2019. No strict rules apply — the posts are meant to introduce books that left an impression, irrespective of their genre. Today we have selections from Diane Desierto. You can read all the posts in this series here.

 

Do communities and populations have any means of knowing what the real price is of the development decisions made on their behalf by their respective States? Are they always just doomed to reckon with seeking redress after-the-fact for any negative externalities that result from these development decisions (e.g. environmental, health, climate change, labor, alongside a whole host of human rights impacts from these development decisions), resorting to a variably asymmetric (and quite imperfect) spectrum of local, regional, or international dispute settlement processes?  These questions were foremost in my mind throughout 2019, especially given the responsibility of working with fellow Experts for the UN Office of the High Commissioner for Human Rights and the UN Open-Ended Intergovernmental Working Group on the Right to Development with respect to the consultation process and drafting of the legally binding instrument on the Right to Development. Likewise, in a year when the Nobel Prize (technically the Bank of Sweden Prize) for Economics was awarded to development economists Esther Duflo, Abhijit Banerjee, and Michael Kremer (who pioneered the export of Randomized Control Trials (RCT) methods in medical research into experiments on human subjects (mostly the poor) to determine the efficacy of development-funded interventions, but generally without such RCTs being conducted using any universal or global code of ethics), what has been argued by Duflo et al. as the relative end of poverty visibly exemplified by the Chinese model of development (an amalgam of ‘authoritarian capitalism’,“market authoritarianism”, or “capitalism with Chinese characteristics”) certainly provokes much rethinking into what development is under international law, and what costs States can legally and legitimately incur to realize that development. 

Most importantly, at a time when the Intergovernmental Panel on Climate Change (IPCC) has issued various reports pointing to the rapid escalation of environmental risks for the entire planet (see 2019 reports on increased risks given climate change impacts on the oceans and cryosphere, land, and global warming of 1.5 degree Celsius) alongside magnified (and often more open) violations (if not dismissals) of human rights around the world (see human rights global reports here, here, and here), can States’ decision-makers still afford to craft development plans without putting the question of negative externalities from development projects at the forefront of policymaking?

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New Issue of EJIL (Vol. 30 (2019) No. 3) – Now Published

Published on December 12, 2019        Author: 

 

The latest issue of the European Journal of International Law (Vol. 30 (2019) No. 3) 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 article in this issue is Paz Andrés Sáenz de Santa María’s The European Union and the Law of Treaties: A Fruitful RelationshipEJIL 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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Favourite Readings 2019 – Industry? What Industry?

Published on December 12, 2019        Author: 

 

As in previous years, EJIL’s Review Editor, Christian J. Tams, has invited EJIL board members and (associate) editors to offer short reflections on their favourite books of the year 2019. No strict rules apply — the posts are meant to introduce books that left an impression, irrespective of their genre. Today we have selections from Jan Klabbers. You can read all the posts in this series here.

 

Looking back, I notice I have read a surprisingly large number of really good books this year, and from a variety of disciplines too. Still, it is a rather damning indictment of the current state of the academic industry that the most memorable works I have read this year have had no relationship whatsoever to formal notions of research projects”, funding schemes”, grant applications”, principal investigators”, or any other manifestation of the competitive bureaucratization of academic work in recent decades.

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