magnify
Home Articles posted by Lawrence Hill-Cawthorne

The ICJ’s Provisional Measures Order in Alleged Violations of the 1955 Treaty (Iran v United States)

Published on October 3, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

The ICJ this morning issued its Order regarding Iran’s request for the indication of provisional measures in Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v United States). This post is intended as a brief summary of the reasoning of the Court. After a short introduction, I will outline the Court’s approach to the three core elements required for an indication of provisional measures: prima facie jurisdiction, plausibility of rights and nexus with provisional measures requested, and risk of irreparable prejudice and urgency.

The facts of the case, including the hearings on the request for provisional measures, are covered in an earlier post. In brief, Iran claims that the re-introduction by the United States of sanctions against it following the latter’s withdrawal from the Joint Comprehensive Plan of Action (JCPOA) in May 2018 violates the 1955 Treaty of Amity between the two States. In its request for the indication of provisional measures, Iran sought the Court’s order that the US shall, inter alia, suspend its reintroduction of the sanctions, as well as allow transactions already licensed to be implemented.

In its Order of this morning, Iran, in part, prevailed, with the Court indicating some of the provisional measures requested by Iran. Thus, the Court required that the US ‘remove, by means of its choosing, any impediments arising from the measures announced on 8 May 2018 to the free exportation to the territory of the Islamic Republic of Iran of (i) medicines and medical devices; (ii) foodstuffs and agricultural commodities; and (iii) spare parts, equipment and associated services (including warranty, maintenance, repair services and inspections) necessary for the safety of civil aviation’. The Court also ordered that the US must ‘ensure that licenses and necessary authorizations are granted and that payments and other transfers of funds are not subject to any restriction’ where they relate to the goods and services noted above, and that both parties ‘refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.’

It is interesting to note that the provisional measures in this case were adopted by the Court unanimously, and thus with the support of the US Judge ad hoc Charles Brower. This is, by no means, the first time a US judge has supported a Court ruling against the US, but it is nevertheless interesting (particularly from a judge ad hoc). Judge Thomas Buergenthal supported judgments of the Court against the US in a number of previous cases, including the Oil Platforms merits judgment (after Judge Schwebel had dissented from the Court’s 1996 finding of jurisdiction in that same case).

Read the rest of this entry…

 

Joint Series on International Law and Armed Conflict: Procedural Regulation of Detention 

Published on October 7, 2016        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

The latest post in the Joint Series on International Law and Armed Conflict is by Lawrence Hill- Cawthorne on the procedural regulation of detention.

I am pleased to have been asked to write a short blog post to outline some of the issues I raised as a discussant for the panel on the procedural regulation of detention at the Fourth Transatlantic Workshop on International Law and Armed Conflict, which took place in Oxford this summer. This is of course an area in which we have recently seen considerable controversy and rapid developments in practice, with cases such as the Serdar Mohammed litigation (on which see here and here) and Hassan v UK (on which see here) dominating much of the recent debates.

The present post does not seek to repeat the above debates but instead it picks out a few controversial points from these much broader discussions that remain unresolved. Everything that is said here is explored in more detail in a recent book that I have written on this topic. The questions that I wish to address here are:

  1. In light of Hassan, which requires that, when making an assessment of compliance with international human rights law (IHRL) in an international armed conflict, a renvoi must be made to international humanitarian law (IHL), what controversies persist concerning:

    1. The review procedures for civilian internment and
    2. The procedural regulation of combatant internment?
  2. To what extent has the law of international and non-international armed conflict converged here?

Detention in International Armed Conflict

The Hassan judgment offered a view as to the relationship between the European Convention on Human Rights (ECHR) and IHL, reading into Article 5 ECHR the grounds and procedures governing internment under the latter regime. Though seemingly simple, the IHL rules on internment, and the European Court of Human Rights’ (ECtHR) reasoning in Hassan, leave a number of questions unanswered. Read the rest of this entry…

 
Comments Off on Joint Series on International Law and Armed Conflict: Procedural Regulation of Detention 

Joint Blog Series: Application of International Humanitarian Law by Domestic Courts

Published on September 15, 2015        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Editor’s Note: This post is part of the joint series of posts hosted by EJIL:Talk!, Lawfare and Intercross (blog of the International Committee of the Red Cross) and arising out of the 3rd Transatlantic Workshop on International Law and Armed Conflict held in Oxford this summer.

It is well known that in an order such as international law where there is no universal, compulsory judicial system, domestic courts play an important role not only in enforcement, but also in interpretation and development of particular international legal rules. This is especially the case in international humanitarian law (IHL), an area that constantly faces existential critique for its lack of effective enforcement mechanisms. Moreover, it was only in the 1990s with the emergence of modern international criminal justice that many of the specific rules of IHL came to be interpreted and developed since their codification several decades before. Against this background, domestic courts are increasingly called on to apply and interpret IHL.

The purpose of this post is to offer a brief overview of the circumstances that might lead a domestic court to examine IHL, the extent to which such jurisprudence can be considered as contributing to the development of IHL, and some of the problems that arise here.

How does IHL come to arise before domestic courts?

There are a number of situations that might call for a domestic court to draw on IHL during the proceedings. In such cases, the court will either apply IHL directly (e.g. where a domestic law or government policy is being judicially reviewed for compliance with the international obligations of the State) or indirectly (e.g. where a domestic law or other international obligation of the State is being applied in a situation that requires a renvoi to IHL for content-determination, such as when interpreting a human right in the context of an armed conflict). Read the rest of this entry…

 
Comments Off on Joint Blog Series: Application of International Humanitarian Law by Domestic Courts

The Grand Chamber Judgment in Hassan v UK

Published on September 16, 2014        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

The eagerly-awaited Grand Chamber judgment in the case of Hassan v UK has now been released, and its importance for anyone interested in extraterritoriality, detention and the relationship between international humanitarian law (IHL) and international human rights law (IHRL) cannot be overstated. For the first time in its history, the Court has explicitly offered its view on the interaction between IHL and IHRL and the operation of the Convention, particularly the right to liberty, in the context of an international armed conflict.

A good overview of the facts of the case and the Court’s judgment can be found here, and they will not be repeated in this post. Instead, I want to offer some initial thoughts on the Court’s reasoning with regard to Article 5 ECHR and, more specifically, its approach to treaty interpretation.

The question before the Grand Chamber was whether the internment of the applicant’s brother, which appeared to conform with the Third and Fourth Geneva Conventions, could be considered consistent with Article 5 ECHR, notwithstanding the absence of any derogation by the UK. At a very general level, the Court effectively had two options here. On the one hand, it could have followed the path it appeared to be laying in its previous case-law, particularly in Al-Skeini and Al-Jedda, and hold that, where jurisdiction exists and where no lawful derogation has been made, the State remains bound to honour its obligations under the ECHR as ordinarily interpreted. Had the Court taken this approach, the Contracting States may eventually have conceded defeat and begun derogating in extra-territorial contexts. (Incidentally, the Court continued to avoid explicitly engaging with the permissibility of extra-territorial derogations.) Instead, the Court adopted the alternative approach, interpreting the ECHR so as to leave room for the broader powers that States have under IHL. Thus, it effectively read into Article 5(1) ECHR an extra permissible ground for detention where consistent with the Third and Fourth Geneva Conventions, and it read down the requirement of habeas corpus in Article 5(4) to allow for the administrative forms of review under the Fourth Geneva Convention.

Let’s begin with a few, in my view, positive points about the Court’s approach here. First, and perhaps most importantly, the Court rejected the UK’s principal argument that IHL as the lex specialis precluded jurisdiction arising under Article 1 ECHR (para 77). To have followed this would effectively have been to displace the entire Convention where IHL applies. Instead, the Court adopted a more nuanced, case-by-case approach which looks at the specific right at issue. This enables the Court to retain its oversight function by assessing the legality of the actions of Contracting Parties through the prism of IHL.

Read the rest of this entry…

 

Developing the Law of Non-International Armed Conflict: A View of the Harmonization Project

Published on September 12, 2014        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Editor’s Note: This post is part of the joint series of posts hosted by EJIL:Talk!, Lawfare and Intercross (blog of the International Committee of the Red Cross) and arising out of the Transatlantic Workshop on International Law and Armed Conflict held in Oxford this summer.

This post is a response to Professor Sarah Cleveland’s post on the Columbia-based Harmonization Project that Professor Cleveland and Sir Daniel Bethlehem are leading. That project explores the potential for applying the law of international armed conflict (IAC) in non-international armed conflicts (NIACs), as a means of developing the law applicable in the latter. The conclusion of the project is that the large majority of the rules applicable in IACs can be transplanted into NIACs without amendment and that this should be done by States either multilaterally or via unilateral declarations.

A detailed, rule-by-rule consideration of the degree to which parity between the law of IAC and NIAC is practicable is a very useful endeavour. Indeed, historically this has been the method by which the law of NIAC has developed. It is clear why this should have been the case. When the first international humanitarian law (IHL) treaties were adopted in the mid-nineteenth century, international law was still, by and large, a law governing inter-State relations. Matters that did not directly engage such relations, including NIACs, were thus generally excluded. Customary rules did of course develop to govern certain NIACs, such as the doctrine of belligerency, but these often applied only where another, non-party State was affected by the conflict.

As international law expanded to include the regulation of purely intra-State matters (reflected in human rights instruments, as well as the Genocide Convention, adopted in the aftermath of the Second World War), this basis for marginalising NIACs began to fall away. Rules traditionally applicable only in IACs could now move over into NIACs. And indeed this is what has happened: common Article 3 to the 1949 Geneva Conventions and Additional Protocol II were based on the law of IAC. This is also true of the customary rules recognised by the ICTY and ICRC.

It is therefore only natural that we should look to the law of IAC in developing the law of NIAC. This post, however, will offer some words of caution in adopting this method of humanising NIACs. In particular, it will be argued that both general and specific arguments militate against this supposedly self-evident means by which to develop the law of NIAC.

General Concerns

The Harmonization Project declares its goal as being to build upon current obligations in NIACs—it is limited to IHL and does not seek to make a claim regarding the relationship between IHL and human rights law. However, it seems to me that one cannot avoid such questions when considering proposals for developing the law of NIAC. Indeed, if one’s goal is further to humanise NIACs (as the Harmonization Project’s seems to be) then one must tread carefully in proposing the extension of IHL in toto to NIACs. As David Kretzmer has shown, far from increasing protections, this method could in fact undermine existing protections. Read the rest of this entry…