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Greek Court Acquits Immigrants who Escaped Appalling Detention Conditions

Published on January 12, 2013        Author: 

In the midst of ever deepening economic woes, Greece is struggling with yet another crisis, this time of a humanitarian character. It is no secret that thousands of immigrants crossing into Greece mainly from Asia and Africa are held in appalling conditions in Greek detention centres. The UN Special Rapporteur on the human rights of migrants visited such centres just before the end of 2012 and faced a bleak situation (the relevant report is still forthcoming, but see the Reuters report here), while the Grand Chamber of the European Court of Human Rights found already in January 2011 that returning an asylum seeker to Greece under Dublin II violates Article 3 of the ECHR (see M.S.S. v Belgium and Greece, paras 344 seq, along with a description of the horrible conditions of detention facing immigrants and asylum seekers in Greece).

Today, media in Greece are reporting that the single-judge formation of the Criminal Court of First Instance of Igoumenitsa in northwestern Greece (Μονομελές Πλημμελειοδικείο Ηγουμενίτσας) has returned a remarkable decision (Nr 682/2012) in a prosecution brought against a number of immigrants awaiting expulsion who escaped a local detention centre. Relevant reports in the Greek press can be found here and here, and a redacted version of the rather short decision is published here (all three documents are in Greek) Read the rest of this entry…


Legality of Veto to NATO Accession: Comment on the ICJ’s Decision in the Dispute between fYR Macedonia and Greece

Published on December 7, 2011        Author: 

Antonios Tzanakopoulos is Lecturer in International Law at UCL Laws and the University of Glasgow.

On Monday, the International Court of Justice delivered its judgment in the curious case between ‘the former Yugoslav Republic of Macedonia’ (hereinafter: ‘fYR Macedonia’) and the ‘Hellenic Republic’ (hereinafter: ‘Greece’). In this case, fYR Macedonia (appearing before the ICJ for the first time) complained that Greece, in objecting to fYR Macedonia being invited to join NATO in 2008, had violated its obligation under the Interim Accord of 13 September 1995 ‘not to object’ to fYR Macedonia joining any international organizations, as long as it applied under its ‘provisional designation’ provided for in Security Council Resolution 817 (1993). The judgment brings up many interesting questions. Apart from matters of jurisdiction and admissibility, perhaps the most interesting issues in the Court’s judgment are (i) its approach to treaty conflicts; (ii) the relationship between the grounds for termination of treaties under the law of treaties and defences available under the law of state responsibility; and (iii) its elucidation of the obligation to negotiate in good faith. Some of these points are taken up after a brief introduction to the dispute.

I. Background to the Dispute

The background to the case before the ICJ is a much older, long-running dispute between the two States as to fYR Macedonia’s name. It is a dispute in which national(istic) sentiment runs high on both sides, and this has caused it to be blown out of all proportion and to have lingered for way too long. ‘Macedonia’ is the name of a historical and geographical region that extends mainly between Greece, Bulgaria, and fYR Macedonia (the precise percentages, if there can be such a thing, depend on who you ask—historical Macedonia was never precisely delimited, as one would no doubt expect). It is also the name of an administrative region in northern Greece, and it was the name of a constituent republic of the Socialist Federal Republic of Yugoslavia, which, upon the SFRY’s dissolution, hoped to continue using the name it had as a constituent entity.

Greece took exception to the use of the name of one of its administrative regions and the irredentist claims made in the fYR Macedonian constitution and by the fYR Macedonian authorities in an attempt to galvanize national solidarity in the midst of a civil war. It responded with several forceful (if non-forcible) measures on the international level, blocking the small country’s accession to international organizations and imposing economic sanctions (for more details see here). Attempts were made to normalize the relationship between the two States in the autumn of 1995, with the adoption of an Interim Accord. The 1995 Interim Accord, besides its unique language (it refers to Greece and fYR Macedonia as the ‘party of the first part’ and the ‘party of second part’ respectively, following which the Court refers to the two States as the ‘respondent’ and ‘applicant’ throughout the judgment), established a number of obligations for the two States: fYR Macedonia had to cease using a symbol that Greece considered part of its cultural patrimony, for example, and undertook that nothing in its constitution could be interpreted as an irredentist claim (Arts 7(2) and 6); both parties had to cease any propaganda, etc, and to negotiate in good faith as to fYR Macedonia’s definitive name (Arts 7(1) and 5(1)); and Greece, for its part, agreed not to object to fYR Macedonia’s applications to join international organizations, as long as the latter applied under the provisional designation stated in para 2 of Security Council Resolution 817 (1993), namely as ‘the former Yugoslav Republic of Macedonia’ (Art 11(1)). The ‘artist formerly known as Prince’, who also changed his name in 1993, did not bother commenting on this development—as an aside it is worth noting that Prince did resolve the issues with himself about his name in 2000.

It is this last provision that led to fYR Macedonia’s application to the ICJ. fYR Macedonia had been hoping to be invited to accede to NATO during the 2008 Bucharest Summit—under its provisional designation (fYR Macedonia) as envisaged in the Interim Accord, just as it had joined a number of other international organizations previously. Such invitation was not extended, however, and fYR Macedonia accused Greece of objecting to its accession to NATO. It filed an application with the ICJ, alleging that Greece had violated its obligation not to object under Art 11(1) of the Interim Accord, given that fYR Macedonia had sought to accede to NATO under its provisional designation. Read the rest of this entry…


Disobeying the Security Council—Some Responses

Published on May 30, 2011        Author: 

Many thanks to Erika de Wet, Marko Milanović, and Matthew Happold, who took the time to read Disobeying the Security Council and write such carefully considered criticisms of what are indeed the central arguments in the book. In what follows I try to respond to some of these criticisms and comments, mainly be reiterating points made in the book, but also trying to take some of them further. Erika de Wet notes, in her review, that the relevant arguments put forward in the book are not ‘watertight’ and require further motivation. No argument there (excuse the pun)—I doubt that any argument (of mine?) could ever be watertight. What I sought to do in Disobeying the Security Council was to offer an interpretation of state practice in response to legally problematic Security Council sanctions, and to legally qualify the admittedly rare instances of principled disobedience of such sanctions that are perceived by states as being wrongful. In that, the book does not really seek to advance a normative argument (‘this is how things should look’) but rather to offer how things actually do look—even if only in its author’s eyes. So much by way of introduction to my responses. Read the rest of this entry…

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An Overview of Disobeying the Security Council

Published on May 24, 2011        Author: 

I. Introduction

Disobedience of an illegal or unjust command has long been a source of inspiration and scholarly excitement for lawyers, philosophers, and even dramatists, among many others. One of the best known tragedies of Sophocles, Antigone, sees the heroine defy the edict of Creon, the ruler of Thebes, in order to comply with the superior (in her view) rule that requires that she bury her dead brother in accordance with holy rites. How to qualify and/or justify disobedience in extreme cases has ever since featured as one of the most hotly debated jurisprudential issues. The book that will be discussed here deals with the legal qualification of disobedience of binding Security Council sanctions resolutions that are perceived by States as being in violation of the UN’s obligations.

At the outset I should like to thank EJIL:Talk! for hosting a debate on Disobeying the Security Council. I am in particular grateful to the editors-in-chief and to OUP for so kindly and diligently organizing this, as well as to the commentators who took the time to read and engage with the book (at least now I can plausibly argue it has been read by more than the proverbial average of two people who read most academic monographs: the author, and their mother). The book is an updated version of my DPhil thesis at the University of Oxford, which was submitted under the rather uninviting title ‘Responsibility of the United Nations for Wrongful Security Council Non-forcible Measures’ (ie Article 41 measures or simply ‘sanctions’).

The first move is to explain why I am focusing on the international responsibility of the United Nations rather than discuss its ‘accountability’. The term has attracted a lot of attention in the scholarship dealing with the question of limits on the ever-augmenting powers and impact of international organizations, despite its less-than-obvious ambit. The opening chapter of the book is devoted to discussing the definition and substance of the term, and to showing that international (legal) responsibility is the most pertinent (and the ‘hardest’) form of accountability that can be employed in the case of the United Nations when the latter is acting through the Security Council. This leads into the discussion of the specifics of UN responsibility for Council sanctions that follows. The discussion is structured in three parts, which follow by-and-large the structure of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (‘ASR’), as well as the Draft Articles on the Responsibility of International Organizations (‘DARIO’): the first part deals with the ‘engagement of responsibility’, ie the requirements for the UN to become responsible under international law (II). The second part proceeds to question who is to determine the engagement of UN responsibility, ie who is to decide whether the UN has become responsible under international law for Security Council ‘sanctions’ (III). The final part deals with the consequences of the UN having engaged its responsibility (IV).

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The UN/French Use of Force in Abidjan: Uncertainties Regarding the Scope of UN Authorizations

Published on April 9, 2011        Author: 

Antonios Tzanakopoulos is Lecturer in Public International Law at the University of Glasgow.

In this post I analyse the legal basis for the current use of force by the UN and France in Côte d’Ivoire, examining how that use of force impacts the status and exceptions of the prohibition of the use of force in Article 2(4) of the Charter and in customary law. In particular, I want to discuss the scope of the authorizations by the UN Security Council to use force, comparing the situation in Côte d’Ivoire with the on-going situation in Libya. The similarity between the two cases is more obvious than has been observed, as in both cases the UN has authorized the use of force in order to protect civilians, and in both cases those authorised by the Security Council to use force have directed that force against one side in an ongoing civil war, including targeting buildings belonging to the leader of that side who claims to be head of State (Col. Gaddafi & Laurent Gbagbo, see here and here). In both cases, questions have arisen as to the scope of the mandate and to whether recent uses of force overstep that mandate (see here with regard to Côte d’Ivoire).

I. The History of the Conflict in Côte d’Ivoire

Côte d’Ivoire has been in a state of turmoil since an attempted coup led to the country being split into southern areas, controlled by the government, and northern areas, controlled by rebels, in 2002. At the time, France used force in Côte d’Ivoire, allegedly to protect its nationals in the country, but was accused by both the government and the insurgents as taking sides (BBC). An eventual cease-fire in 2003 proved to be fragile, with the rebels refusing to disarm, and the French intervening in response to government attacks on French troops stationed in Côte d’Ivoire in 2004. ECOWAS, AU, and UN efforts facilitated an agreement between the factions, and elections were scheduled to take place in 2005 (see SCRs 1464 [2003] and 1479 [2003]). These kept being postponed due to the precarious security, but were finally held in November 2010.

Ouattara, Gbagbo’s rival, won the very close election, the results of which were certified by the UN (see SCR 1765 [2007] para 6), and accepted by the EU, the AU, ECOWAS, and most States that cared to form an opinion (with the notable exception of Angola and Lebanon). However, Gbagbo refused to accept defeat (see for further background Jean d’Aspremont’s excellent post). In the aftermath of the election, both leaders were inaugurated in separate ceremonies, and claimed to be the President of Côte d’Ivoire. Since there seemed to be no forthcoming solution in the impasse, the AU gave Gbagbo an ultimatum, inviting him to hand over power to Ouattara by 24 March, while the EU, the US, and ECOWAS imposed sanctions on Côte d’Ivoire, a move welcomed by the UN Security Council (see SCR 1962 [2010] preamble). When the ultimatum expired with Gbagbo still refusing to leave, pro-Ouattara forces marched from their strongholds in the north towards Abidjan to seize power by force. They are now in Abidjan, having taken over most of the rest of the country, and are laying siege to the Presidential compound, where Gbagbo has taken refuge. Read the rest of this entry…


The Distomo Case: Greece to Intervene in the Sovereign Immunity Dispute between Germany and Italy before the ICJ

Published on January 17, 2011        Author: 

Antonios Tzanakopoulos is Lecturer in Public International Law at the University of Glasgow.

On 12 January 2011, the Greek Government announced its decision to apply to the International Court of Justice for permission to intervene in the sovereign immunity dispute brought by Germany against Italy (see here for Dapo’s comment when the case was first brought). The Greek decision to intervene has received some coverage in the Greek and German media, but has gone relatively unnoticed in the English-speaking world. Even though the Government had been under some pressure, both by opposition parties and by public opinion (see eg here [in Greek]), to intervene in the dispute, its decision does come as a relative surprise. Greece is already engaged in one case before the ICJ, where fYR Macedonia has complained of the alleged breach of the 1995 Interim Accord between the two States with reference to Greece’s conduct in response to fYR Macedonia’s bid to join NATO (see here for brief comment), and is also in dire economic straits. Still, the Greek Government elected to open a new front, primarily, it seems, for ‘symbolic’ reasons (see the Greek PM’s statement reported here [in Greek]). Needless to say, Germany was less than impressed by the Greek decision (see the comments by Foreign Minister Westerwelle here; the standard AP report as relayed by the Jerusalem Post here; and the German press here and here [in German]; but see also here for a German position in favour of Athens’s intervention, which however confuses individual criminal responsibility with state responsibility [in German]).

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Kadi II: The 1267 Sanctions Regime (Back) Before the General Court of the EU

Published on November 16, 2010        Author: 

Antonios Tzanakopoulos is Lecturer in Public International Law at the University of Glasgow. Many thanks are due to Christian Tams, Marko Milanović, and Dapo Akande for their comments. The usual disclaimer applies.

In the aftermath of the ECJ’s Kadi decision, which annulled the EC Regulation implementing the 1267 sanctions regime against Mr Kadi and the Al Barakaat Foundation, Kadi was almost immediately relisted by the Council of the EU in a new Regulation. This subjected him afresh to the restrictive regime of SCRs 1267 (1999) et seq, most recently SCR 1904 (2009). And, as Devika Hovell reported on this blog, almost immediately Kadi brought a fresh challenge against that Regulation before the CFI, now renamed as the ‘General Court of the EU’ after the entry into force of the Lisbon Treaty. On 30 September, the General Court rendered its decision in Kadi II.

EJIL:Talk! regular readers will know that we have consistently reported on challenges to the 1267 regime before national and regional courts on this blog (see eg here, here, here, here, here, and here). In Kadi II, the General Court grudgingly follows the ECJ’s reasoning in Kadi I and confirms a trend of defiance of Security Council sanctions. In this post I will try to situate the Kadi II decision in the context of challenges to Security Council restrictive measures under Article 41 of the UN Charter. Read the rest of this entry…


The UK Supreme Court Quashes Domestic Measures Implementing UN Sanctions

Published on February 23, 2010        Author: 

Last year, I posted on this blog analyses of domestic cases touching upon UN sanctions, in particular with respect to the 1267 sanctions regime (concerning Al Qaeda and Taliban individuals). My comments on the Abdelrazik case (in the Canadian Federal Courts) can be found here (and in expanded version in the Journal of International Criminal Justice here) and on the Hay case (in the English courts) here. The current post, briefly, draws the attention of our readers to the recent decision of the UK Supreme Court in A, K, M, Q & G v HM Treasury and in Hay v HM Treasury. A more extensive consideration of the Supreme Court’s decision will follow—watch this space.

I. Partial Confirmation of Hay

In its decision, HM Treasury v Mohammed Jabar Ahmed and ors (FC); HM Treasury v Mohammed al-Ghabra (FC); R (on the application of Hani El Sayed Sabaei Youssef) v HM Treasury [2010] UKSC 2, the UK Supreme Court largely confirms the High Court’s approach in Hay, and quashes in part the UK’s ‘Al Qaida Order’ (‘AQO’) because it removes the right of access to an effective remedy (see paras 81-82). The AQO is the implementing measure adopted by the UK Executive to give effect to 1267 sanctions. It is subject to the UN Act 1946, which the Court found not to allow the Executive to remove individual rights. The Court also reverses the decision of the Court of Appeal in A, K, M, Q & G, quashing in part the ‘Terrorism Order’, adopted to implement the 1373 regime. The Law Lords clearly distinguished between the two sanctions regimes, one imposing ‘strict’ obligations, and the other allowing for a margin of appreciation (see paras 64, 148, 196 seq and cf the CFI in OMPI at paras 100-102). What is particularly important in the Supreme Court’s decision is that most of the Law Lords fully accept that the domestic implementing measure of the 1267 regime, the AQO, is strictly conditioned by the relevant Security Council Resolutions. The Court clearly finds that subjecting implementation measures to parliamentary scrutiny could lead to the UK breaching its international obligations under the Charter if the implementing measure was defeated in Parliament (paras 47-49). Lord Brown, dissenting, implies that the Court, in quashing the AQO, would force the UK to flagrantly violate the UN Charter (para 204).

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Stepping Up the (Dualist?) Resistance: The English High Court Quashes Domestic Measures Implementing UN Sanctions

Published on October 9, 2009        Author: 

Antonios Tzanakopoulos, D.Phil. cand. (Oxford), LL.M. (NYU) (Athens), is Lecturer in Public International Law at the University of Glasgow. A relevant paper presented at the University of Vienna in September 2009 can be found here in draft form.

I. Introduction: the 1267 Regime and Domestic Courts

For quite some time now there has been significant discontent about the fundamental rights implications of Security Council sanctions, in particular individual sanctions under the regime established by Resolution 1267 (1999) and subsequent Resolutions (see eg this blog here and here). The 1267 regime obligates UN Member States to freeze the assets of persons designated by the relevant Sanctions Committee as being ‘associated with’ Al-Qaida and the Taliban. But those identified by the Committee have no recourse against their designation, and no other remedy except the possibility to petition the Committee for delisting. Decisions on such petitions are taken in camera and no justification is required (see the Committee’s Guidelines).

Since Security Council decisions are not directly enforceable in most municipal legal orders, Member States of the UN have had to transpose the relevant measures imposed by the Council. This was done through the adoption of domestic implementing acts, usually of administrative character, in order to comply with their obligations under Article 25 of the UN Charter. The fact however that sanctions were imposed ‘on the ground’, as it were, by domestic administrative decisions, combined with the lack of any other recourse, has led affected individuals to attack the domestic implementing measures in the courts of various Member States (see here for the Monitoring Team reports, detailing challenges in the Annex).

II. Domestic Courts Have Teeth

The ECJ, in a decision controversial in its reasoning, if not in its outcome, was the first  court to finally annul such ‘domestic’ implementing measures (in this case adopted on the EC level) acceding to the claim of two listed persons, Kadi and the Al Barakaat Foundation. That decision would have effectively forced the 27 Member States of the Community in breach of their international obligations under the Resolutions and Article 25 of the Charter. The ECJ, however, suspended the effect of the annulment for three months, by which time the Community had adopted new implementing measures.

Still, the ECJ may just have provided the impetus that other domestic courts needed in order to embark upon their own ‘decentralized resistance’ against Security Council sanctions under the 1267 regime. The CFI annulled the domestic implementing measures with respect to Othman, another listed person, without even granting the grace period that the ECJ provided for in Kadi. But most importantly, a month after Othman, on 10 July 2009, the Queen’s Bench of the English High Court quashed the Al-Qaida and Taliban (United Nations Measures) Order 2006 (‘AQO’) in Hay v HM Treasury ([2009] EWHC 1167 (Admin)). Read the rest of this entry…

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An Effective Remedy for Josef K: Canadian Judge ‘Defies’ Security Council Sanctions through Interpretation

Published on June 19, 2009        Author: 

Antonios Tzanakopoulos is a DPhil Candidate at St Anne’s College, Oxford. In 2005, he was research assistant to Professor Giorgio Gaja, the International Law Commission’s Special Rapporteur on the Responsibility of International Organizations. His Oxford thesis is on the responsibility of the United Nations for wrongful non-forcible measures by the Security Council. Many thanks are due to Dapo Akande, Gleider Hernández & Devika Hovell. The usual disclaimer applies.

I. Introduction

Municipal and regional courts are increasingly engaged by individuals and legal entities in questions relating to UN Security Council measures adopted under Article 41 of the Charter. Most prominent among these are the ‘targeted sanctions’ imposed by Security Council Resolutions (SCR) 1267 (1999) seq, which provide for asset freezes, travel bans and arms embargoes against persons listed by the Committee established pursuant to SCR 1267 (the 1267 Committee). Usually the relevant SCRs are attacked indirectly before the domestic court, the direct attack being on the domestic implementing measures. In the recent case of Abousfian Abdelrazik v The Minister of Foreign Affairs and the Attorney General of Canada (Federal Court of Canada; currently available here but also to be made available here shortly), the impugned conduct on the part of Canada which gave rise to a claim for the violation of Canadian constitutional rights began long before any listing by the 1267 Committee. The listing only served to complicate matters and to offer an excuse to Canada with respect to a pattern of conduct that pre-dated the listing. The facts provided the opportunity for the Canadian judge to express what has been on the mind of many with respect to the 1267 regime of ‘targeted sanctions’: if you happen to get listed, it is much like being Josef K in Franz Kafka’s The Trial. In this case though-and possibly for the first time-Josef K got an effective remedy.

The Canadian Federal Court held that Canada had violated the constitutional right of Mr Abdelrazik (a dual Sudanese and Canadian national) to enter Canada, even though he was subject to UN sanctions. The court interpreted the SCRs such that the travel ban and asset freeze imposed by the Security Council would not prevent Canada from assisting Mr Abdelrazik’s return to Canada. In so doing, the Canadian court effectively forced upon the Executive its own interpretation of Canada’s obligations under the UN Charter, and required that Canada comply with the court decision. The Court’s interpretation risks a breach by Canada of the SCR and the UN Charter,, should the Security Council interpret its own Resolution differently. The situation is not unlike the one forced upon the European Community and its Member-States following the ECJ’s decision in Kadi: either breach the obligation stemming from the Security Council decision (by removing Kadi’s asset freeze) or disobey the ECJ (by maintaining the freeze). In Abdelrazik, the Court was prepared to go a step further than the ECJ as it asserted that the sanctions regime imposed by SCRs 1267-1822 was unlawful under international human rights law. The case marks yet another step in a new era that sees domestic and regional courts asserting with confidence their (indirect) jurisdiction over UN sanctions regimes.

II. Factual Background

Abousfian Abdelrazik was jailed in Sudan in 1989 after the successful military coup of Omar Al-Bashir. In 1990 he managed to flee to Canada, where he was first granted refugee status and then Canadian citizenship. In March 2003, after some of his acquaintances had been charged or convicted for participating in terrorist attacks, Abdelrazik returned to Sudan, claiming he had been continuously harassed by the Canadian Security Intelligence Service (the CSIS) in the wake of the September 11 attacks (at [9]-[12]). Abdelrazik was detained in Sudan at the request of Canada (id at [66]-[91]) in 2003 and 2005-2006. Read the rest of this entry…