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Home Archive for category "EJIL Analysis" (Page 2)

International Commissions of Inquiry as a Template for a MH17 Tribunal? A Reply to Larissa van den Herik

Published on March 6, 2017        Author: 

My article published in the last EJIL issue was originally inspired by research on early war crimes trials, and the North Sea Incident Commission stood out as a highly unorthodox and unusually early foray into what we would call international criminal law. I am delighted that Larissa van den Herik’s response has recognized the significance of the commission’s mandate to establish individual responsibility and guilt, a fact not acknowledged in the literature before. It demonstrates the variety within the practice inspired by the Hague Conventions of 1899 and 1907, and that a commission of inquiry tackling questions of accountability is not an entirely new thing. We differ on what conclusions and lessons can be drawn from these facts. I do not have the space to provide full answers to the many different criticisms raised in Prof. van den Herik’s piece but I am grateful that I was given the opportunity to briefly address the most important ones on this forum.

Prof. van den Herik wonders whether the Dogger Bank case and modern commissions of inquiry investigating large-scale violations of human rights can usefully be grouped together as being part of the same family. That is open to debate – my entire point here is that the embrace of accountability and indeed international criminal law that is controversially discussed regarding contemporary commissions of inquiry is not completely new and unprecedented, as other scholars have argued. Moreover, the North Sea Incident inspired much of the rulebook for international commissions of inquiry as laid out in the 1907 Hague Convention on the Pacific Settlement of International Disputes, so this case is more than just an outlier. In terms of categorization, I clearly present the North Sea Incident Commission as the very first of the small number of adversarial international commissions of inquiry, a rare sub-type of inquiry used for the investigation of single incidents involving attacks on civilian vessels. These adversarial setups have similarities to a criminal court, most prominently in the Dogger Bank case. In 1922, a commission of inquiry set up in this way ordered Germany to pay for the sinking of the Dutch trawler Tubantia during the First World War. In 1962, a similar commission held that the Danish navy used excessive force in dealing with the British trawler Red Crusader that had intruded into Danish waters while fishing around the Faroe Islands. Practitioners of international criminal law can either choose to embrace them as useful tools to resolve particularly intractable disputes, or reject them because they blur the distinction between fact-finding and international criminal law. What I wanted to highlight is that these precedents exist, and that states have repeatedly decided to set up international commissions of inquiry that strayed from the model described in the Hague Conventions. Read the rest of this entry…

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The Impact of Austerity Policies on International and European Courts and their Jurisprudence

Published on March 3, 2017        Author: 

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

Many countries have been hit by deepening economic depression induced by the economic crisis of 2008. While there is no doubt that the crisis had its origins in unregulated financial speculation, by bailing out and recapitalising the broken banking system (see Bieling 2014), national governments were blamed for the financial slump and were asked by some international institutions, to adopt a policy of austerity (see Blyth 2013). This policy involved draconian cuts in government budgets and spending, the privatisation of public-sector organisations and administrations, and reduction of wages and prices to rescue financial and banking institutions that were deemed “too big to fail”. The main effects of these austerity policies have been described, studied and analysed in terms of the decline of welfare states, breaches of social rights, unemployment, and rising social inequalities between the rich and the poor (see Contiades and Fotiadou 2012; Kilpatrick and De Witte 2014 ; Vettori 2011).

The negative effects of austerity on fundamental rights protection have been monitored and denounced by several European institutions, including those responsible for protecting fundamental rights (see here and here). However, scant academic attention has been paid to the way international and regional courts are dealing with some of the policies within the economic crisis as human rights violations (see Salomon 2015). The austerity cases that have been brought before the European Court of Human Rights and the UN Committee on Economic, Social and Cultural Rights have faced the hurdles of admissibility and scope.

The European monitoring of the consequences of the economic crisis

Regarding the European Court of Human Rights [ECtHR], in a number of cases the Court has rejected applications (as it found them inadmissible as manifestly ill-founded) relating to austerity, notably in the field of wages and pensions. Here, the Court relied on the principles of proportionality and subsidiarity, and the limited and temporary nature of austerity measures (see Khoniakina v Georgia, Bakradze v Georgia, Frimu and Other v. Romania, Da Conceição Mateus v. Portugal, Santos Januário v. Portugal and Da Silva Carvahlo Rico v Portugal).

Equally, we could also point out a new sensitivity of the judges of the Court to economic and social rights affected by the economic crisis, austerity policies and public spending cuts. Read the rest of this entry…

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The Security Council’s Response to the Ebola Crisis: A Step Forward or Backwards in the Realization of the Right to Health?

Published on March 2, 2017        Author: 

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

The fight against Ebola has brought into stark focus the global threat emanating from viral diseases. In response to the outbreak of the deadly virus in Africa, in 2014 the UN Security Council adopted Resolution 2177 characterizing the epidemic as a threat to international peace and security and calling in its operative paragraphs on all Member States to provide international assistance and co-operation.

While the resolution has been widely applauded as a landmark for global public health (see e.g. here and here) this post questions whether the peace and security approach taken by the Council risks undermining the normative force of the right to health and the associated obligations of international co-operation. To better appreciate the challenges posed by the Security Council’s response to Ebola, the post will first briefly look at the content of Resolution 2177 before reflecting on what the resolution omits. Against this background the final part discusses what consequences flow from this (sin of) omission.

Governing in situation of crisis: UN SC Resolution 2177 

After convening an emergency meeting on 18 September 2014, the Security Council adopted Resolution 2177 entitled “Peace and security in Africa”. The resolution, sponsored by a record number of 130 countries and adopted unanimously by all Council members, characterized “the unprecedented extent of the Ebola outbreak in Africa” as a “threat to international peace and security”. After having underlined that:

“the outbreak is undermining the stability of the most affected countries concerned and, unless contained, may lead to further instances of civil unrest, social tensions and a deterioration of the political and security climate…”.

While the link between the virus and regional instability – let alone international stability –  is not made entirely clear in the resolution, the reference to international peace and security in a non-military context hardly constitutes a novelty in the Council’s history. Ever since the end of the Cold War the significance given to “non-military sources of instability in the economic, social, humanitarian and ecological fields” (see Presidential Statement S/23500, 31 January 1992), has meant a widening of the Security Council’s traditional area of competence beyond the limited sphere of inter-state military conflict. Read the rest of this entry…

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Due Diligence Obligation in Times of Crisis: A Reflection by the Example of International Arms Transfers

Published on March 1, 2017        Author: 

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

In this blog post, I would like to take up a question that I discussed at the ESIL Human Rights Interest Group in Riga and analyze whether the due diligence obligation under international human rights law (IHRL) plays a role in the regulation of crisis in order to prevent or mitigate state action that has a negative impact on human rights, and what role that might be.

In doing so, I will use the debate emerging in the wake of the ongoing ‘crisis’ in the Middle East on international arms transfers by foreign governments, for instance, to the Syrian rebels or the Kurdish forces in Northern Iraq, to support the fight against IS. International arms transfers in the form of emergency military aid has drawn into the limelight the issue as to whether the recipients of the supplied arms would be able to control them or if these weapons may fall into the hands of non-intended end-users, such as private parties, likely be used to commit human rights violations on the recipient’s territory (which is what in fact happened, see here or here).

The Problématique: Attribution of Conduct

As a general principle, the acts of non-state actors fall out of the scope of the rules of state responsibility, unless they are acting under the direction or control of a state (see Article 8 of the ILC Draft Articles on State Responsibility). Crisis-related scenarios are especially characterized in a way that human rights abuses occur either due to a general situation where the wrongful conduct in question is not identifiable (e.g. in armed conflicts, natural disasters or disease outbreaks) or where acts of non-state actors are not attributable to a state due to lack of control. This might be the case in armed conflicts where third states do not engage in direct attacks but are interfering indirectly by means of state assistance (e.g. military aid in the form of arms transfers). Read the rest of this entry…

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International Law in the Age of Trump

Published on February 28, 2017        Author: 

In the second month of Donald Trump’s presidency, we still know little about his foreign policy agenda. He regularly said things during the campaign that suggested a radical departure from longstanding tenets of U.S. foreign policy. And during his first month in office, he caused more than his fair share of diplomatic offense and confusion. But as the New York Times has reported, Trump’s foreign policy has already become more centrist. It’s fair to say, then, that we don’t really know what Trump will do on the international stage.

Still, there’s good reason to believe that the Trump administration will pose unprecedented challenges to international law. In this post, I’ll discuss the three principal ways in which the administration is likely to undercut the existing international legal order. My goal is simply to outline the distinct risks so that we can better appreciate them. I don’t at this point propose any solutions.

  1. Corroding Legal Norms

The first possibility is the most obvious one and has already received some attention: the United States might more readily violate substantive rules of international law or disregard accepted processes for making legally relevant decisions. International legal theorists sometimes claim that legal violations—particularly, high-profile violations by one of the most powerful countries—risk unraveling the entire enterprise of international law. For example, this is how Thomas Franck expressed his concerns about the George W. Bush administration in 2006: “When a community loses faith in law’s power to restrain and channel conduct, this perception propels the descent into anarchy.”

Even if that rhetoric is hyperbolic (and I think it is), repeat violations might corrode specific legal norms. After all, any interaction that puts a particular norm at issue communicates not only whether the norm was effective in the case at hand but also what the norm requires going forward and to what extent it reflects an operative commitment. If the United States repeatedly and blatantly violates a norm, and suffers little repercussion, it will, if nothing else, weaken that norm. In my view, this process of normative evolution is not necessarily bad. Eroded norms might be replaced by new ones that better reflect current problems or expectations. Even so, the transition could be destabilizing. And it would be undesirable if its effect is to increase the threats to global security or human lives.

To be sure, the United States has violated international law before. Reasonable people can disagree about the frequency of those violations, but they are all but certain to accelerate under the Trump administration. President Trump has made clear that he intends to put “America first.” He has also indicated that he defines America’s interests very differently than his predecessors. It’s not a stretch, then, to assume that putting America first means exploiting U.S. power to evade legal rules and processes that the United States has long accepted. Moreover, while other global actors might at times push back against the United States—while they might use international law to try to condemn or constrain it—its raw power could well frustrate these efforts. Read the rest of this entry…

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Methods to Incorporate Human Rights Law into Disaster Prevention and Reduction Strategies

Published on February 28, 2017        Author: 

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

Earthquakes, floods, hurricanes, volcanic eruptions and landslides are all natural phenomena that have occurred throughout the history of humankind. This blog reflects on the ensuing crisis in human life, infrastructure, economic stability and ongoing development projects when such events occur. The limited capacity of a State to prepare, respond and rebuild afterwards is what will often turn these events into ‘disasters’ and crisis situations. Thus, disaster is the consequence of a combination of factors: disaster risk arises when hazards (such as earthquakes, floods, hurricanes, volcanic eruptions and landslides) interact with pre-existing physical, social, economic and environmental vulnerabilities. The ‘elements at risk’ may, therefore, refer to exposure of people, buildings, businesses, and infrastructure. This post shows how and why human rights law is an invaluable asset to States and organisations hoping to reduce the risk of disasters. Critically, it analyses methods available to incorporate human rights law into disaster prevention and reduction strategies.

International Disaster Risk Reduction (DRR) Frameworks

Over the past two decades, as the international disaster management agenda has been developed and refined, firstly in Yokohama (Yokohama Strategy and Plan of Action for a Safer World: guidelines for natural disaster prevention, preparedness and mitigation 1994) and then in Hyogo (Hyogo Framework for Action 2005-2015: Building the Resilience of Nations and Communities to Disasters), the human rights agenda has also undergone a significant shift. Human rights principles are firmly entrenched in the international legal order through the proliferation of human rights courts and institutions. Read the rest of this entry…

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Unconstitutional and Invalid: South Africa’s Withdrawal from the ICC Barred (For Now)

Published on February 27, 2017        Author: 

On 22 February 2017, the South African High Court handed down a significant decision invalidating South Africa’s notice of withdrawal from the International Criminal Court (ICC). The case was brought by the official opposition party, the Democratic Alliance, and joined by a number of civil society actors. The court’s conclusion that prior parliamentary approval was necessary before South Africa could withdraw from the ICC bears similarities to the recent decision of the UK Supreme Court on the UK’s withdrawal from the European Union.

The South African judgment concerned the decision of the Minister of International Relations and Cooperation to send a notice of withdrawal to the UN Secretary-General in October 2016 (see my previous post on this for more details), without prior announcement that the government had decided to withdraw from the ICC, nor any public consultation on the matter. The government’s reasons for leaving the ICC, as surveyed by Dapo, had centred on the claim that the Rome Statute and the South African legislation domesticating the Rome Statute (the ‘Implementation of the Rome Statute of the International Criminal Court Act of 2002’), required the government to arrest sitting African heads of State, contrary to customary international law rules on immunity. This, it was argued, undermined South Africa’s peace-making efforts on the Continent. These issues had come to a head during President Bashir’s visit to South Africa in June 2015, when South Africa had failed to execute outstanding ICC arrest warrants against him. This led to non-cooperation proceedings against South Africa at the ICC (which will take place in April), and South African High Court and Supreme Court of Appeal decisions holding the government’s failure to arrest President Bashir to be unconstitutional. The pushback was not well received by the South African Executive.

Given the 12-month notice period prescribed in Article 127(1) of the Rome Statute of the ICC, South Africa was set to leave the court in October 2017. However, the High Court decision has, at the very least, pushed back the timeline for withdrawal (absent a rapid successful appeal by the government). It also presents an important, and perhaps final, opportunity to engage the government concerning its decision to leave the ICC. Here I give a brief overview of the decision, highlighting certain issues concerning parliamentary involvement in treaty withdrawal, and discuss some possibilities for persuading South Africa to retain its membership in the ICC.

The High Court Decision

The High Court was faced with a question similar to that decided by the UK Supreme Court in the recent Brexit decision – can the Executive withdraw from an international treaty, which had been ratified and domesticated by Parliament, without prior Parliamentary approval? The question is not directly addressed by the South African Constitution, which contains no explicit provision on treaty withdrawal, and had not yet received judicial attention. Like the UK Supreme Court, the South African High Court answered in the negative. It held that since section 231(2) of the South African Constitution requires Parliamentary approval for treaties subject to ratification, this section also by implication requires the consent of Parliament to withdraw from such treaties. Therefore, the notice of withdrawal was unconstitutional and invalid. Read the rest of this entry…

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‘Let them drown’: rescuing migrants at sea and the non-refoulement obligation as a case study of international law’s relationship to ‘crisis’: Part II

Published on February 27, 2017        Author: 

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

In the first half of this two-part post, I reviewed the argument to the effect that sea-rescues of migrants, allied to the extraterritorial application of the non-refoulement obligation in human rights law, incentivize dangerous smuggler-enabled journeys.  In this second half of the post, I will appraise the merits of this argument.

Why do People make Dangerous Crossings?

People only take dangerous routes because regular routes are closed off to them, through migration law-enabled non-entrée restrictions backed up by robust carrier sanctions in general, and an absence of will, on the part of many states who could potentially provide protection, to realize this potential through organized resettlement, in particular.

Some have argued—as I did in a presentation at the American Society of International Law Annual Meeting in 2016—that a key causal factor in creating the conditions for smuggler-enabled perilous sea crossings is the non-entrée measures of those states whom individuals wish to obtain protection from.

These measures—strict immigration controls, including border checks, visa restrictions and the posting of extraterritorial immigration officials—are  rooted in the general entitlement of states in international law to control their borders, and backed up specific legal regimes whereby states impose hefty fines on carriers such as airlines if the carriers transport individuals into their territories who do not have a right to enter there. (For a discussion of the ethics of this, see e.g. Linda Bosniak’s ‘Wrongs, Rights and Regularization’).

It is the existence of these legally-enabled arrangements that necessitate the dangerous and illegal journeys, involving smugglers, which place people in danger at sea (see also Itamar Mann and Umut Özsu here).  (For the argument that, because of this, in some cases the smuggling of refugees is justified, see this by Jim Hathaway.)  Here, then, we see how one area of international law can be seen as part of the cause of the ‘crisis’. Read the rest of this entry…

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‘Let them drown’: Rescuing migrants at sea and the non-refoulement obligation as a case study of international law’s relationship to ‘crisis’: Part I

Published on February 25, 2017        Author: 

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

“Approaching crises with criticism reminds us that crises are produced: they are negotiable narratives that can mask as well as reveal, a recognition that should be central when we respond to crises of human rights within international law.” Benjamin Authers and Hilary Charlesworth (‘The Crisis and the Quotidian’, p. 38)

The situation of the movement of certain migrants to and within Europe since 2015 has been described as a ‘crisis’.  The ‘crisis’ designation has been used because of the numbers involved—commonly depicted as the largest movement of people in Europe since the Second World War—and the consequent challenge of how the role of European states in assisting such people should be determined in a fair and equitable manner, in the face of sharp inequities in how things played out in practice.   A typical response from international lawyers has been to implore states to implement fully their relevant legal obligations, including in international human rights law.  Such a position is reflected, for example, in the open letter, signed by over 900 international lawyers, coming out of the 2015 ESIL conference in Oslo [I should declare I was responsible, with Başak Çali, Cathryn Costello, and Guy Goodwin Gill, in drafting and organizing the signatures for this letter].At the same time, others have drawn the opposite conclusion about the law, suggesting that legal rules were more part of the problem than the solution.  For example, in 2015 Germany partly suspended the operation of the Schengen border-free rules of EU law, on the basis that, absent a co-ordinated and equitable European approach to the situation, the cross-border free movement such rules permitted was objectionable (see here and here).

These responses epitomize the dual way international law can be and is invoked in relation to crisis: as part of the solution and as part of the problem.  In two posts I would like to explore this duality by considering the migration ‘crisis’ and the debates around one particular policy prescription relating to it: the ‘rescue’ of migrants at peril at sea performed by states acting extraterritorially, in the context of the operation of the non-refoulement obligation in human rights law. Read the rest of this entry…

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The Curious Case of the Killing of Kim Jong-nam

Published on February 24, 2017        Author: 

The night is dark and full of terrors. But sometimes the terrors are just too damn funny. Consider the circumstances of the untimely demise of Kim Jong-nam, the elder half-brother of North Korean dictator Kim Jong-un, assassinated in Malaysia apparently at the orders of his imperial sibling.

  • He was not just poisoned (so very old-school), but was poisoned by VX, the most potent of all chemical warfare agents, which is 100 times more toxic than sarin; less than a drop on the skin can kill you. Being poisoned at the orders of your family is one thing; your family killing you with a weapon of mass destruction is another. (Remember, though, that time when Kim Jong-un had some officials executed by anti-aircraft guns. All around nice guy.)
  • The immediate executioners were two young women, one Vietnamese and one Indonesian; they claim to have been duped into doing this by North Korean agents and that they thought they were just pulling a prank on someone; Malaysian police reject this version of events.
  • The Vietnamese woman was a failed “Vietnam Idol” contestant in 2016; a panel of judges rejected her after she sang just one line: “I want to stop breathing gloriously so that the loving memory will not fade.” The Indonesian woman wore a t-shirt with an “LOL” sign while carrying out the assassination. ROFL.
  • The most likely method of delivering the VX was not the spray or liquid on the assassins’ hands, but a drop of the toxin on a cloth which was then touched against Kim’s skin.
  • The Malaysian special forces are guarding the morgue in which Kim Jong-nam’s body is being kept, after an attempted break-in, the purpose of which may have been to tamper in some way with the corpse.
  • North Korea refuses to accept that the person who was killed was Kim Jong-nam, while at the same time requesting the surrender of the body.
  • There is apparently such a thing as a North Korean Jurists Committee. And they made a real gem of a statement on the assassination which I commend to every, erm, jurist out there. Among other things, the statement claims that (1) Malaysia violated international law by carrying out an autopsy on a bearer of a DPRK diplomatic passport, who had ‘extraterritorial right according to the Vienna Convention;’ (2) that the autopsy was an ‘undisguised encroachment upon the sovereignty of the DPRK, a wanton human rights abuse and an act contrary to human ethics and morality’; and that (3) ‘DPRK will never allow any attempt to tarnish the image of the dignified power of independence and nuclear weapons state but make a thorough probe into the truth behind the case.’ So the violation of international law and human rights is not the person’s death but the investigation. Note also the oh-so-subtle reference to nuclear weapons. Creepy/scary, but still LMAO.

Both factually and legally Kim’s assassination resembles the 2006 killing by radioactive polonium of Alexander Litvinenko in London, ostensibly by Russian agents. This is in effect Litvinenko redux, except it additionally has that very special DPRK flavour of crazy. The legal issues are more or less the same. One possible violation of international law is the infringement on the sovereignty of the territorial state. Another is the violation of Kim’s right to life – the DPRK is in fact a party to the ICCPR (recall the denunciation issue some time ago), but Malaysia (and China) are not and cannot invoke the DPRK’s responsibility directly in that regard even if they wanted to, although they may rely on customary law. There’s also the issue of the ICCPR’s extraterritorial application to the killing of a person by a state agent; I have argued that such scenarios are covered by human rights treaties, assuming that there is proof of the DPRK’s involvement in the killing, which of course remains to be conclusively established.

 

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