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Home Archive for category "EJIL Analysis"

Brexit, the Northern Irish Backstop, and Fundamental Change of Circumstances

Published on March 18, 2019        Author: 
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If, dear readers, you have any doubts that the parliamentary politics of Brexit have emerged from the fever dream of some demented game theorist, I would just ask you to take a very quick look at the events of last week. In their second meaningful vote on Theresa May’s Brexit deal, British MPs voted it down by 391 votes to 242, a majority of 149. This was an improvement of sorts on the first meaningful vote, which May lost by a majority of 230. MPs also voted to reject a no-deal Brexit and to instruct the government to ask the other EU states for an extension to the Article 50 withdrawal period. At the same time, by a majority of only 2 votes they defeated the Benn amendment, which would have allowed Parliament to express its preferences as to the outcome of the Brexit process in a series of indicative votes, and thus overcome the current impasse.

This week Theresa May seems poised to take her deal to the Commons for a third meaningful vote, most likely on Tuesday or Wednesday, before the EU Council meets on Thursday. She has worked furiously over the past few days to lobby the Northern Irish DUP and the hard-core Brexiteers within her party to vote for her deal, or risk either a very long extension to Article 50 or the UK remaining in the EU after all. This fear is of course the main incentive to bring the various pro-Brexit factions within Parliament and the Tory party to support May’s deal, and it is growing in power as the Article 50 deadline approaches. But because some of these factions have effectively painted themselves into a corner over the supposed downsides of May’s deal, they need something more than fear itself to justify a change of mind to their electorate. They need, well, a fundamental change of circumstances, like re-revised legal advice from the UK Attorney-General, Geoffrey Cox QC. And they may well eventually find that in the customary rule on fundamental change of circumstances, rebus sic stantibus, codified in Article 62 of the Vienna Convention on the Law of Treaties.

Now, if even after two full years into this whole MCFoHP someone told me that Brexit could ultimately depend on Art. 62 VCLT, I would have been perplexed, to put it politely. This is, for all its Roman pedigree, a rule that has never successfully been applied in real life, I would have said. Its requirements are almost impossibly strict. How could something as important as Brexit depend on an international law doctrine of such relative obscurity that even international law textbooks standing at more than a thousand pages devote it less than two? To paraphrase the late Ian Brownlie’s pithy assessment of jus cogens, the rule on fundamental change of circumstance is a car that has never left the garage.

But – but – over the past week the garage doors have creaked open, with a whiff of something tart and pungent. The stillness of things has become disturbed.

Read the rest of this entry…

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Brexit Means Brexit: Does It so When It Comes to EU Citizenship?

Published on March 15, 2019        Author: 
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Following a dramatic referendum, the United Kingdom triggered Art. 50 of the TEU in March 2017 officially commencing its withdrawal from the EU. At first glance, one of the many consequences of the move is the loss of EU citizenship for all British citizens as they will no longer be ‘holding the nationality of a Member State’ (TFEU, Art. 20(1)). This means losing all the perks that go with an EU passport, among them the freedom of movement, residence, and employment across the Union (id., Art. 20(2)).

A broader question of fairness and justice arises when ca. sixteen million people who have not voted in favour of leaving the bloc and have not committed any fraud or deceit are going to be stripped of their EU citizenship, and all of the privileges associated therewith. Not surprisingly, there have been some speculations on whether (and how) EU citizenship can be preserved by the Brits.

EU Citizenship

In its contemporary form, EU citizenship was established by the TEU back in 1992 providing that an EU citizen is ‘[e]very national of a Member State’ (Art. 9). The drafters of the Treaties could easily avoid using the term ‘citizenship’ and simply assign all the rights to nationals of the Member States but did not do that (William Thomas Worster, Brexit and the International Law Prohibitions on the Loss of EU Citizenship 15 International Organizations Law Review 341, 348 (2018)). However, the true roots of EU citizenship can be found in the Treaty of Paris signed in 1951. The Treaty virtually denounced any restrictions in the employment of professionals ‘in the coal and steel industries’ (Art. 69). Read the rest of this entry…

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Shamima Begum may be a Bangladeshi Citizen After All

Published on March 14, 2019        Author: 
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In 2015, Ms Shamima Begum, then a 15-year-old British citizen living in London, travelled to Syria to join the so-called Islamic State. Her fate was unknown until recently when Ms Begum was discovered in a refugee camp in Syria. On 19 February 2019, the British Home Office in a letter delivered to Ms Begum’s family, revoked her British citizenship. Now, the 19-year-old wishes to return to the United Kingdom (UK). The aim of this piece is to examine whether Ms Begum is a Bangladeshi citizen as has been claimed by the Home Office, and subsequently contradicted by the Government of Bangladesh.

Article 8(1) of the 1954 Convention relating to the Status of Stateless Persons, to which the UK is a State-party (but not Bangladesh), directs a State, in this case the  UK, to not render a person stateless by depriving him or her of their nationality.

In the UK, Section 40(2) of the British Nationality Act, 1981 states that a person may be deprived of his or her citizenship if such ‘deprivation is conducive to the public good’. Furthermore, Section 40(4) of the same Act mandates that an order to deprive a person of his or her citizenship must not make that person stateless. Section 40(4) is basically the domestic reproduction of Article 8(1) of the 1954 Convention. Hence, the Home Office is authorised by law to revoke the citizenship of an individual provided it does not render that individual stateless. Read the rest of this entry…

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Filed under: EJIL Analysis, Syria
 

Negotiating Brexit in the Shadow of the Law of Treaties

Published on March 12, 2019        Author: 
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It is an extraordinary day in British politics today, with the Prime Minister’s ‘enhanced’ Brexit deal to be voted on in Parliament later this evening. The outcome of today’s vote, and the votes that may follow later in the week, is of course anyone’s guess (although the WA will likely be voted down). I have now read through the Attorney-General’s new legal advice on the revised deal and have been following the debate in the House of Commons, and was struck by how remarkably the various issues being debated turned around the customary law of treaties, which operates by default, in the background, unless the UK and EU agree differently. Here are just some – readers are of course invited to discuss any relevant matter in the comments:

(1) What is the legal nature of the Joint Instrument relating to the Withdrawal Agreement, and what are its legal effects? Is it an agreement in the sense of Art. 31(2)(a) VCLT, which defines the ‘context’ of the treaty? Is it something even stronger, an ‘authentic interpretation’ of the WA? Is is also a separate treaty, even though it is not called such, because it is a written agreement between a state and an IO governed by international law, which sets out further obligations that were not in the WA? (The latter is the position of the UK government).

(2) Note in that regard the superb example of constructive ambiguity of the final paragraph of the Instrument, which allows the EU to say, on one hand, that the WA was not reopened or changed as the Instrument simply interprets the WA, and for the UK to argue that meaningful legally binding changes were made to the deal:

Note that this instrument provides, in the sense of Article 31 of the Vienna Convention on the Law of Treaties, a clear and unambiguous statement by both parties to the Withdrawal Agreement of what they agreed in a number of provisions of the Withdrawal Agreement, including the Protocol on Ireland/Northern Ireland. Therefore, it constitutes a document of reference that will have to be made use of if any issue arises in the implementation of the Withdrawal Agreement. To this effect, it has legal force and a binding character.

(3) Similarly, what is the legal nature and effects of the UK’s Unilateral Declaration? Is it simply an interpretative declaration by the UK, which is of itself incapable of having any direct legal effects, being simply a statement of the UK’s position? Or is it something more, especially because the EU has not objected to it?

(4) There seems to be consensus that the customary rules on denunciation and suspension of treaty obligations have been displaced by the express dedicated provisions of the WA. This seems to apply also for termination or suspension due to material breach. The WA does not allow the UK to exit the backstop unilaterally; it can only suspend obligations arising from it if the EU is shown to be acting in bad faith and this is determined by the arbitral tribunal established by the WA.

(5) However, the UK’s position is that it CAN unilaterally terminate the WA or the backstop Protocol in case of fundamental change of circumstance/rebus sic stantibus. The Attorney General was explicit on the point repeatedly in the Commons. Never has more been at stake, it seems, regarding the interpretation of the rule in Art. 62 VCLT.

We’ll obviously have to wait and see how this will play out, but again it is clear that Brexit is being shaped critically by the background operation of the law of treaties. It is also remarkable how much importance has been given to questions of form, i.e. how crucial it is for many MPs whether a particular obligation is political or legally binding. Readers may also be interested in the Attorney’s new advice; the Attorney’s prior advice on the WA; an opinion by David Anderson QC, Jason Coppel QC, and Sean Aughey; and an opinion by Philippe Sands QC and David Edward QC.

 

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UK’s Position on the Diplomatic Protection of Dual Nationals

Published on March 8, 2019        Author: 
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The UK Government decided today to exercise diplomatic protection over Nazanin Zaghari-Ratcliffe, a dual UK-Iranian national imprisoned in Iran (and one of a number of people who have been in such a position over the past few years). In this post I just want to briefly flag a possible evolution in the UK’s legal views on the diplomatic protection of dual nationals by one state of nationality against the other state of nationality. The traditional position was of course that diplomatic protection could not be exercised in such circumstances.

In its 2006 Articles on Diplomatic Protection, the ILC adopted a more flexible rule, which relied on a test of predominant nationality. Article 7 ADP thus provides that ‘A State of nationality may not exercise diplomatic protection in respect of a person against a State of which that person is also a national unless the nationality of the former State is predominant, both at the date of injury and at the date of the official presentation of the claim.’ In the ILC’s view this more flexible rule was one of customary international law, a position embraced by some states but not others (see, e.g., here for an enthusiastic endorsement of the rule by Norway on behalf of Scandinavian states, and a more skeptical position of Japan).

The UK’s position on Article 7 has been as follows (A/CN.4/561/Add.1, p. 7):

Draft article 7 sets out a general rule of international law that a State will not support the claim of a dual national against another State of nationality. The Government of the United Kingdom will not normally take up the claim of a national if the respondent State is the State of second nationality. However, exceptionally, the Government may take up the claim of a person against another State of nationality where the respondent State has, in the circumstances leading to the injury, treated that person as a British national. However, we consider that the test for “predominant nationality” included in draft article 7 requires further clarification.

Now, obviously, it is not easy to argue that Iran has treated Zaghari-Ratcliffe as a British national – in fact Iran rejects the other nationality of its dual nationals, treating them formally as Iranians only, even if clearly many of them are being detained precisely because of their dual nationality. So it seems more likely that Foreign Office is now endorsing more expressly the predominant nationality rule that it was not very keen on when the ILC ADP were being discussed.

In that regard, I would like to flag for readers an opinion that John Dugard, who was the ILC special rapporteur on diplomatic protection, and barristers Tatyana Eatwell and Alison Macdonald have written for Redress on Zaghari-Ratcliffe’s situation, arguing precisely that the UK could exercise diplomatic protection over on the basis that her British nationality was predominant, and explaining how the predominance test was satisfied on the facts. It seems quite possible, if not likely, that the UK government’s views now substantially align with the legal and factual analysis in the Dugard/Eatwell/Macdonald opinion, which is well worth a read.

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Filed under: EJIL Analysis
 

Non-Precluded Measures Clause: Substance or Procedure? A comment on Certain Iranian Assets

Published on March 6, 2019        Author: 
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On 13 February 2019, the International Court of Justice (ICJ) issued its Judgment on the preliminary objections raised by the US to Iran’s claims in the Certain Iranian Assets case. The dispute involves the exercise of jurisdiction over Iran by US courts and the seizure of assets of Iranian state-owned companies to satisfy those court’s judgments. According to Iran, these actions are in breach of the US obligations under the 1955 Iran-US Treaty of Amity. The background to the case and the Court’s recent decision have been analysed elsewhere (see, eg, here). In this post, I want to comment on one specific element of the Court’s reasoning: its decision in relation to the US objection based on Article XX(1) of the Treaty of Amity.

Article XX(1) states, in relevant part, that:

The present treaty shall not preclude the application of measures …

(c) regulating the production of or traffic in arms, ammunition and implements of war, or traffic in other materials carried on directly or indirectly for the purpose of supplying a military establishment; and

(d) necessary to fulfil the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests.

The US argued that the function of this provision was to exclude certain matters from the substantive scope of the Treaty, with the consequence that they fell outside the Court’s jurisdiction which is limited, under Article XXI, to disputes relating to the interpretation and application of the Treaty. The Court rejected the US preliminary objection and decided, as it had done on previous occasions, that the provision in question constituted a ‘defence on the merits’ (para 47). This seems to be the right approach: Read the rest of this entry…

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Back to Square One or a New Blueprint has been Found for the ‘Refugee’ Definition?

Published on March 5, 2019        Author: 
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Editor’s note: This post is part of the ESIL Interest Group on Migration and Refugee Law symposium on The UN Global Compacts on Migration and Refugees: The Twin Peaks?

Our search for a new blueprint (or searching for a way to find a new blueprint) for the ‘refugee’ definition started already in 2016, at “The Migration Conference” in Vienna, through a comparison regarding the definition of refugee and more importantly its implementation in Brazil, Italy and Turkey. Afterwards, “The Movement of People Conference” in Hamburg in September 2016 opened the floor (at least) in academia to compare the definitions of refugee and its implementation in different parts of the world, which was not a new problem, but still had no solution at the time. Representatives from both sides of the Atlantic, i.e. the European Union (EU), USA, Latin America, United Kingdom, Germany, and Turkey came together to understand why all the implementations differ from each other, despite the fact that they are all States parties to the 1951 Geneva Convention and have derived their domestic definitions of refugee from it.

The results showed that this was due to the fact that there are different rationales behind the forced human mobility to various destination countries. For instance, while Latin America has dealt with hundreds of thousands of displaced people coming from Colombia and Northern Triangle of Central America among many other reasons also as climate refugees, EU Member States and Turkey still deal mostly with mass human mobility from Syria and the Middle East in general, because of the armed conflicts happening there. Read the rest of this entry…

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Governance and the UN Global Compact on Migration: Just another Soft Law Cooperation Framework or a New Legal Regime governing International Migration?

Published on March 4, 2019        Author:  and
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Editor’s note: This post is part of the ESIL Interest Group on Migration and Refugee Law symposium on The UN Global Compacts on Migration and Refugees: The Twin Peaks?

Does the UN Global Compact for Safe, Orderly and Regular Migration (GCM) fulfill the criteria of a legal regime for international migration or is it just another soft law cooperation framework amidst many? If the GCM is merely a cooperation framework, then what is its contribution to international migration law (IML)? Is it limited to institutional questions, including the quality of follow-up, monitoring and review? What does it mean to ascribe the GCM a “governance capacity”? Does “governance”, as a counter concept to government, feature at the same time as an antidote to anarchy, so that the GCM could be fashioned as the complement to the “missing regime” of IML?

To resolve the ambiguity over the GCM’s governance ambition means for one to reply to the question posed by Aleinikoff in 2007, i.e. to what extent the GCM provides for the long-sought after “architecture” to govern the “substance” of IML. To respond to the challenge secondly means to uncover to what extent the GCM has overcome the “anarchy” underlying the fragmented state of IML, also called the “piecemeal approach” (Opeskin et al. 2012). This approach allowed States in the Global North to keep national sovereignty over territory and borders untouched by design, but also for few exceptions of multilateral cooperation on service providers in the General Agreement on Trade in Services (GATS) and regional schemes on free movement of persons. However, the “management” of population flows from sending countries has led to uncertain outcomes for the protection of migrants’ rights, while rendering their entitlements an often-neglected legal category in international law.

In this post, we will provide a first appraisal of whether the GCM has governance potential – a capacity which may move it beyond the mere “international cooperation framework”, designed by GCM drafters. Read the rest of this entry…

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“We are tidying up”: The Global Compact on Migration and its Interaction with International Human Rights Law

Published on March 1, 2019        Author: 
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Editor’s note: This post is part of the ESIL Interest Group on Migration and Refugee Law symposium on The UN Global Compacts on Migration and Refugees: The Twin Peaks?

“We are not talking about anything new […] Rather we are tidying up” – said El Salvador’s Representative before the vote at the United Nations General Assembly (UNGA) on the adoption of the Global Compact on Migration (GCM), also known as the Marrakech Compact (GA/12113). Other similar declarations joined the chorus of States in three clear directions: 1) the Compact is not legally binding; 2) the Compact does not create any new international obligations in the form of new customary rules; and 3) the Compact reaffirms States’ sovereignty.

Be that as it may, one cannot but agree with Maria Gavouneli that the GCM, at this stage, will not have a huge impact on the existing legal framework applicable to the mass movements of individuals. However, it is possible to move the critique one step forward looking at some contents of the GCM that might have some normative effects on the sources of international law governing the management of migration.

The GCM and its Legal Nature

As Anne Peters put it on this blog, the GCM is part of the borderless category of international soft law instruments, as States’ will clearly excludes the legal bindingness of its objectives and actions. However, it is no mystery that soft law instruments might have, under certain conditions, normative effects. Read the rest of this entry…

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Tit-for-Tat-for-Tit: The Indian and Pakistani Airstrikes and the Jus ad Bellum

Published on February 28, 2019        Author: 
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Over the past few days there has been a flurry of confusing reports regarding military confrontations between India and Pakistan in the Kashmir region. It appears that in the early hours of 26 February Indian air force MiG-20s carried out air strikes in Pakistani territory in the small city of Balakot in response to a suicide bombing in Indian controlled Kashmir on 14 February which took the lives of over 40 Indian paramilitary soldiers and for which Pakistani based terror group Jaish-e-Mohammad (JeM) claimed responsibility. India claimed that it hit a JeM militant training camp during the strikes with a significant number of militant casualties, while Pakistan claimed that the Indian aircraft retreated after being confronted by the Pakistan Air Force, dropping four or five bombs in open field as they left across the border and which resulted in no causalities. While there have been several border skirmishes between the two states since they gained independence from Britain in 1947, this is the first time Indian military aircraft have carried out strikes across the ‘line of control’ since the war between them in 1971 which led to the creation of Bangladesh.

The following day Pakistan claimed to have carried out air strikes on ‘open ground’ within Indian territory, while India claimed that a military installation had been targeted. During an ensuing confrontation, Pakistan shot down an Indian Air Force MiG-21 jet which fell within Pakistani territory and led to the capture of the pilot. India has also claimed to have shot down a Pakistani fighter jet which had fallen on to the Pakistani side of the LoC. The US, EU, Russia and China have all called for restraint.

While clearly a dangerous development between two nuclear-armed states, with various accounts of underlying political motives for the clashes, and with shelling continuing across the LoC between them at the time of writing, it is, however, the legal justifications – or, rather, lack of – by both states for their strikes that will be the focus here.

Read the rest of this entry…

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