Home Articles posted by Jacques Hartmann

The Philippines Human Rights Commission and the ‘Carbon Majors’ Petition

Published on December 22, 2017        Author: , and

The adoption of the Paris Agreement in 2015 has been followed by a burgeoning strand of climate change litigation, with test cases being heard all over the world (see Columbia Law School database). Amongst others, litigants have argued that emissions are the proximate cause of adverse climate change impacts, thereby giving rise to specific liability. One of the boldest efforts to test the boundaries of the law in this area is a petition currently being heard by the Commission on Human Rights of the Philippines (CHR or Commission). The petition originated in 2016, when after a surge of typhoons wreaking havoc in the Philippines, Greenpeace Southeast Asia, Pilipino human rights groups and citizens requested the Commission to investigate the responsibility of 47 oil, gas, coal, and cement companies for human rights violations or threats thereof resulting from the impacts of climate change (so-called Carbon Majors petition). The petition has attracted much attention in the media and numerous academics and civil society organisations have submitted amicus briefs in support of the petitioners. Last week, the Commission groundbreakingly asserted its jurisdiction to investigate the petition (CHR press release). The Commission also announced multiple fact-finding missions and public hearings in 2018, to be held both within and without the Philippines. This post reflects on the international law implications of the petition for arguments concerning the liability of corporations for alleged human rights violations associated with the impacts of climate change in a transnational context.

The Scope of the Commission’s Jurisdiction

Similar to other national human rights institutions, the CHR has a mandate to investigate:

all forms of human rights violations involving civil and political rights and to investigate and monitor all economic, social and cultural rights violations and abuses, as well as threats of violations thereof, especially with respect to the conditions of those who are marginalized, disadvantaged, and vulnerable (Rule 2, Omnibus Rules of Procedure). 

Some respondents challenged the Commission’s jurisdiction to hear the petition. Citing the Lotus case, they argued that a State’s jurisdiction is limited ‘only to the confines of its physical boundaries’ (e.g. Cemex, at 11). As we explained in our amicus brief, States frequently exercise adjudicatory and legislative jurisdiction over persons or events outside their territory, as long as there is a clear connecting nexus between that State and the person or conduct that it seeks to regulate. Therefore, and contrary to what was suggested by the respondents, the exercise of the Commission’s jurisdiction over foreign corporations is neither an ‘act of interference’ or ‘usurpation’ of other States’ sovereignty (Cemex, at 16), nor ‘tantamount to an undue encroachment on the territorial jurisdiction and sovereignty of such other States where Respondents are domiciled and operate’ (Shell, at 1). As long as the Commission’s investigation falls within one of the established principles of jurisdiction, it is in accordance with international law. The most relevant principles for the purposes of the petition are the territorial and the protective principles. Read the rest of this entry…

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A Danish Crusade for the Reform of the European Court of Human Rights

Published on November 14, 2017        Author: 

Tomorrow (15 November) Denmark will take over the rotating chairmanship of the Council of Europe (CoE). The CoE was established in 1949 and has since adopted numerous treaties, including the 1950 European Convention on Human Rights (ECHR). Denmark is a CoE founding member and has traditionally been a strong supporter of human rights. Yet the Danish Government has announced that the chief priority of its chairmanship will be the reform of the European human rights system. This announcement may come as a surprise to the readership of this blog. This post therefore summarises the vicissitudes that have led to the Danish Government’s initiative, and provides some early reflections on its expected impact.

Why does Denmark want a reform?

Immigration has long been a dominant theme in Danish politics. In the late 1990s, the Danish People’s Party (DPP) began to denounce immigration, multiculturalism and Islam as alien to Danish society and values. Since 2001, the DPP has supported various minority coalition governments and gained extensive influence on Denmark’s immigration policy, which is now one of the most restrictive in Europe.

Critique of the ECHR is not new in Denmark, where much debate has focused on the influence of the Convention on the deportation of the foreign criminals. Read the rest of this entry…


Canada and Denmark reach agreement on the Lincoln Sea Boundary

Published on January 10, 2013        Author: 

Jacques Hartmann is Lecturer in Law, Dundee Law School, Scotland.

On 28 November last year Canada and the Kingdom of Denmark announced that they had reached a tentative agreement on the maritime boundary in the Lincoln Sea. The Lincoln Sea is a body of water bordering the Arctic Ocean, north of Canada’s Ellesmere Island and Greenland, which, together with the Faeroe Islands, is part of the Kingdom of Denmark. The Canadian/Danish agreement partly settles long-standing uncertainty over the northern boundary between the two countries, but it does not settle the dispute over Hans Island which is situated right in the middle of a potentially important sea route to the Arctic Ocean.

This graphic is for illustrative purposes only. The solid black line is the boundary agreed in the 1973 treaty. The broken black line is the boundary agreed ad referendum. The broken blue lines indicate 200-nautical-mile zones.
1) Lincoln Sea; 2) Nares Strait; 3) Baffin Bay 4) Davis Strait ; 5) Labrador Sea

Most of the boundary between Canada and Greenland was established by a delimitation treaty in 1973. The treaty delimited the continental shelf, covering:

‘…[The] area between Greenland and the Canadian Arctic Islands… for the purpose of each Party’s exploration and exploitation of the natural resources of that part of the continental shelf…’

Although that treaty officially concerned the continental shelf, both Canada and Denmark have used the delimitation line to define fishing zones. Thus by usage it is had become a maritime boundary.

The 1973 delimitation treaty lists 127 points from the Davis Strait in the south to the Nares Strait (also know as Robson Channel) in the north, the narrow strait of water between the northernmost part of Ellesmere Island and Greenland. That treaty established a boundary of nearly 1,500 nautical miles. At the time, it was the longest shelf boundary ever negotiated. The new agreement extends the boundary to more than 1,600 nautical miles.

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The Copenhagen Process: Principles and Guidelines

Published on November 3, 2012        Author: 

Jacques Hartmann is Lecturer in Law, Dundee Law School, Scotland.

On 20 October the Danish Government published a set of ‘Principles and Guidelines’ on the handling of detainees in international military operations. The Principles addresses uncertainties surrounding the legal basis for detention and the treatment of detainees during military operations in non-international armed conflicts, such as current operations in Afghanistan or Iraq. An impressive 22 States, including the P5, have expressed support. Human rights organisations, on the other hand, have expressed dismay. The following provides a short background to and comments on the non-legally binding text.

The Principles and Guidelines are the outcome of a five-year long process that was initiated by the Danish Government in 2007 – the so-called ‘Copenhagen Process’. The process was initiated in recognition of the fact that bilateral or ad-hoc solutions to detention during international military operations often led to unacceptable differences in the handling of detainees, which, according to the Danish Ministry of Foreign Affairs (MFA), are not only unsatisfactory in relation individual protection but at times also constitute a hindrance to effective military cooperation. Read the rest of this entry…


An Indian trial on Danish soil – an odd proposal in a somewhat bizarre case

Published on October 5, 2012        Author: 

Jacques Hartmann is Lecturer in Law, Dundee Law School, Scotland. Previouslyjoined the School of Law in September 2012. Prior to that he worked as a legal advisor at the Danish Ministry of Foreign Affairs

It is reported that India seeks to establish a tribunal at its embassy in Copenhagen to try a Danish national for conspiracy to wage war against the Indian Government. National trials in foreign countries are not without precedent. In 1999, after the Lockerbie case, two Libyan nationals were tried before an ad hoc Scottish court set up in a former US military base in the Netherlands. After the verdict in 2001, Professor Plachta in a piece in the European Journal of International Law (2001) questioned whether the case had opened the way to a neutral venue principle to solve future disputes involving the obligation of aut dedere aut judicare ). It has taken several years, but Plachta’s suggestion might be getting further support.

India has long been seeking the extradition of Niels Holck, a Danish national known in India by his alias ‘Kim Davy’. Holck is wanted for his involvement in the 1995 ‘Purulia arms drop’ where large quantities of weapons and explosives were dropped over the Purulia district of West Bengal in India. A British national and five Russians were subsequently arrested. Holck – the alleged mastermind of the operation – escaped. His co-accused were sentenced to life imprisonment. After pressure from their respective governments all six were later released (for UK parliamentary debate, see here).

India never relented in it efforts to bring Holck to justice. It first requested extradition in 2002. The request came after a major shake-up of the Danish extradition law following the events of 11 September 2001. Prior to this, Denmark would only extradite its nationals to other Nordic countries. Holck was one of the first Danes requested for extradition south of the border. Read the rest of this entry…


The European Emissions Trading System and Extraterritorial Jurisdiction

Published on April 23, 2012        Author: 

Jacques Hartmann is Assistant Professor, Department of Law, University of Southern Denmark and Fellow at the European Inter-University Centre for Human Rights and Democratisation, Venice, Italy.

The history of clashes over extraterritorial jurisdiction between the United States and the European Union (and European States) is long. On several occasions, the EU and European States have objected to the enactment and enforcement of US legislation. Good examples are European objections made in connection with the US’ Helms-Burton Act (imposing sanctions on Cuba), the D’Amato Act (dealing with sanctions on Iran) and also the Alien Tort Claims Act. This tradition might however be about to reverse itself.  The EU is itself facing mounting criticism over its decision to include emissions from foreign aviation within the European Emissions Trading System (ETS). Several States and airlines have objected to the inclusion with in the European ETS of aircraft emissions over the high seas and over foreign territory. Some States objected to these additions to the ETS even before they came into force. The most dramatic expression of such opposition came with a Joint Declaration issued in September 2011 by 21 States (including the US, Japan, India, Russia and China). The signatories declared that the EU’s plan to include extraterritorial emissions within the ETS was “inconsistent with applicable international law.” The declaration called upon the International Civil Aviation Organization (ICAO) to continue its efforts to address emissions from aviation. In addition, China and Russia suggested unilateral retaliation, whereas the US declared that it would respond with “appropriate action” if the extension of the ETS scheme went ahead. On 24 October 2011 the US House of Representatives overwhelmingly voted in favour of legislation, which prohibits “an operator of a civil aircraft of the United States from participating in any emissions trading scheme unilateral ly established by the European Union.”Also China has reportedly banned its airlines from participating in the ETS without governmental approval. The latter measures are in line with established State practice, whereby objecting States adopt so-called ‘blocking laws’, prohibiting compliance with the disputed legislation (see e.g. EC Regulation 2271/96).

On 21 December 2011, the European Court of Justice (ECJ) handed down a long awaited judgement (C‑366/10) in a case brought by a group of leading US airlines and trade associations. The claimants argued that the inclusion within the ETS of aircraft emissions over the high seas and foreign territory violated the EU’s treaty obligations and amounted to an impermissible form of extraterritorial legislative jurisdiction. The ECJ found no violation of international law. Several States have however contested the Court’s findings and a trade war may be looming. The matter at issue raises several fundamental questions concerning jurisdiction and sovereignty. The present note reviews the Court’s reasoning, providing a commentary on a matter that is likely to preoccupy international lawyers for some time to come.

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Denmark Establishes a Commission of Inquiry into the Wars in Iraq and Afghanistan

Published on April 17, 2012        Author: 

Jacques Hartmann is Assistant Professor, Department of Law, University of Southern Denmark and Fellow at the European Inter-University Centre for Human Rights and Democratisation, Venice, Italy.

The Danish Government has decided to appoint a Commission of Inquiry on the Danish involvement in the wars in Iraq and Afghanistan. The terms of agreement for the Commission were sent to the Danish Parliament on 11 April 2012 (available here, in Danish). According to the terms, which are still to be negotiated with the relevant Parliamentary Committee, the Commission has to examine both the legal basis for going to war as well as the conduct of Danish forces on the ground.

The Danish decision to participate in the  in the Iraq war was taken by the Danish Parliament in 2003, but there have long been accusations that information was withheld from Parliament; even that it was misled. The Commission is called upon to  to examine whether the information provided to Parliament was ‘accurate and complete’. It also has to consider the previous Government’s assessment on the legality and the procedure leading up to the decision of going to war. As such, it resembles the Dutch Committee of Inquiry, which was established in March 2009 and the British (Chilcot) enquiry launched in July that same year (discussed, here, here and here)

The Danish Government’s main legal argument for the legality of going to war was the so-called ‘revival argument’ (explained here). In 2010 this argument was dented by the Dutch Inquiry, which found that the relevant Security Council resolutions did not “constitute a mandate for… intervention in 2003” (see full report, in Dutch, here but with conclusions in English from p. 527. Note paras 18-20 of conclusions dealing with international law).

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