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Home Archive for category "EJIL Analysis" (Page 3)

Another Challenge for Colombia’s Transitional Justice Process: Aggravated Differential Treatment between Armed Forces and FARC

Published on October 19, 2018        Author: 
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A new proposal for a constitutional amendment has caused another highly controversial debate in Colombia. The proposal foresees the creation of “special chambers” within the Colombian Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, SJP) with the exclusive competence to try members of the Armed Forces. Just a quick reminder: The Final Peace Agreement was concluded between the Colombian Government and the Revolutionary Armed Forces of Colombia – People’s Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP) in November 2016. It introduced the SJP as the Peace Agreement’s single legal mechanism, responsible for bringing all parties to the conflict to justice. The new government and its party in the Colombian Congress (“Centro Democrático”) are keen to make some reforms to the SJP. A few weeks ago we have discussed here a proposal to radically limit the access of the SJP and other organs of the Colombian TJ System to information related to national security. The now proposed constitutional amendment is the result of a debate that had already started earlier this year at the time of the negotiations regarding the SJP’s Rules of Procedure and Evidence (RPE). It evolved around the introduction of Article 75 RPE which provides for a special procedure for the Armed Forces in relation to the crimes committed during the armed conflict. The rule was finally adopted and ultimately paved the way for this recent proposal.

The authors of the proposal (among them former President Alvaro Uribe Vélez, one of the Peace Agreement’s most vocal opponents) consider that the Armed Forces “have fought in the name and in favor of the legitimate State”, including those members  that committed crimes not eligible for amnesty; in contrast, the FARC are characterized as just a “criminal organization pursuing criminal purposes” (Explanatory Statement to the proposal (ES), p. 11 [all translations by the author]). The proposal’s aim is, of course, to strengthen the position of the Armed Forces, especially of those members involved in international crimes and thus possibly subject to national or international proceedings. However, as it stands the proposal will do a disservice to the Armed Forces which should rather stick to the existing mechanisms of the SJP in order to have higher security with regard to the International Criminal Court (ICC). For reasons of space, I cannot explain here the multiple problems of the proposal with regard to the current Colombian constitutional system (especially, but not exclusively regarding the SJP), and its international obligations (regarding the jurisprudence of the Inter-American Court of Human Rights, the ICC and under International Humanitarian Law). Instead, I will focus on the serious problem that the proposal creates for its presumed beneficiaries with regard to the preliminary examination undertaken by the ICC’s Office of the Prosecutor (OTP).

The proposal has implications for the application of the complementarity principle, which regulates the relationship between national jurisdictions and the ICC. Read the rest of this entry…

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The Renegotiated “NAFTA”: What Is In It for Labor Rights?

Published on October 11, 2018        Author:  and
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On 1 October 2018, the draft text of the United States-Mexico-Canada Agreement (Draft USMCA), the North American Free Trade Agreement (NAFTA)’s successor, was published on the official website of the United States Trade Representative. The Agreement has still some way to go though, including extensive legal ‘scrubbing’ by national authorities and, most importantly, approval by the corresponding national legislatures, which is likely to give rise to intense controversies. Much of the debate surrounding the Agreement so far has revolved around its labor implications, with US Trade Representative Robert Lighthizer stating that the renegotiations’ objective was, among others, “to better serve the interests of our workers”.

Against this backdrop, this post takes a look at the Draft USMCA’s labor rights dimension. It analyzes the Draft USMCA’s Labor Chapter and also reviews certain other chapters that are relevant from a labor rights perspective. The main argument is that, while the Draft USMCA entails some interesting legal innovations, the opportunity to address the main structural problems of US trade agreements to date in terms oflabor rights has largely been missed.

What is new in Draft USMCA’s Labor Chapter?

When the NAFTA was adopted in 1993, one of its novelties was the accompanying labor side agreement, which is still in force. At its core, it required parties to enforce their own domestic labor law, set up a Commission for Labor Cooperation, and established a complaint mechanism for third parties. It also allowed, in certain cases, for state-to-state arbitral dispute settlement with possibilities to impose limited fines as a last resort measure. The fate of NAFTA’s labor side agreement, which the Draft USMCA, as it stands, does not refer to, remains unclear.

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The Spectre of Trexit: Proposal to Reintroduce the Death Penalty in Turkey

Published on October 10, 2018        Author: 
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On 1 October 2018, just ten days before the European and World Day against the Death Penalty, the only elected member of parliament of the BBP – a Turkish ultra nationalist party – submitted a draft legislation proposal to Parliament asking for the reintroduction of the death penalty in Turkey. The proposal reintroduces the death penalty for the murder of children and women through sexual means and for killings carried out as part of individual or organised acts of terrorism.

In its justification for the proposal, Burhan Ekinci, the MP in question, highlights the need to restore justice for victims of these hideous crimes, and the need to enhance the trust of the Turkish public in the fairness of the Turkish criminal justice system.  In his proposal, Ekinci argues there is no death penalty in Turkey because of ‘international agreements’ (in quotation marks) and what he labels ‘domestic dynamics’. Ekinci also expresses his disgust for the dishonesty of so-called humanism which, he claims, puts the rights of perpetrators above those of the victims of the most serious crimes. 

This proposal, of course, may not find support in the Turkish Parliament and fade away. Evidence, however, shows that the proposal should not be taken lightly. If it does succeed, it can be Turkey’s Trexit, ending Turkey’s long standing relationship with European institutions.

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Palestine’s Application the ICJ, neither Groundless nor Hopeless. A Reply to Marko Milanovic

Published on October 8, 2018        Author: 
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On Friday 30 September 2018, Palestine introduced an Application before the ICJ against the United States of America for violation of the Vienna Convention on Diplomatic Relations (VCDR), on account of the transfer of the US embassy from Tel Aviv to Jerusalem. This is yet another judicial episode of David vs Goliath, like the Military and Paramilitary Activities case (Nicaragua v. US) or the South China Seaarbitration (Philippines v. China) were. But this time the David seems even more fragile, since the Goliath disputes the statehood of Palestine and consequently the many rights attached to it – among them, recognition and respect of sovereign equality in the first place.

The seisin of the ICJ has taken international lawyers aback: the reactions went from enthusiastic excitement to sheer incredulity or scepticism. This is not surprising: the case, whether it is decided on the merits or not, has the potential of becoming one of the great cases of international law, those which will be studied for decades by international law students, which will give guidance on highly debated issues, like statehood and erga omnes obligations. It is not every day that the Court is offered such an occasion.

Now, of course, it is certain that the US will challenge the Court’s jurisdiction. The only question is whether they will formally introduce preliminary objections or opt for non-appearance (like China or Russia have lately done). Non-appearance having rarely served the cause of the recalcitrant State, the US would be well advised not to follow that path; all the more if their case on jurisdiction is as strong as Marko Milanovic considers it to be in his post of 30 Sept. 2018. Non-appearance is generally an epidermal reaction by a super-power to legal challenges against its policy. The US’ infuriated announcement of withdrawal from the Optional Protocol to the VCDR, made on 3 Oct 2018, denotes this attitude. But it has no effect on Palestinian proceedings, which were introduced before the denunciation could become effective. 

One may wonder instead why the United States have not made this move earlier. After all, Palestine did warn them, through a verbal note of 4 July 2018, of the dispute on the VCDR. And on the same day, Palestine deposited with the Secretary General a declaration recognizing the jurisdiction of the Court under the Optional Protocol (both texts are available as annexes to Palestine’s Application). Maybe no one in Washington considered that Palestine’s notifications should be taken seriously. Be that as it may, the Application was made on time and the consensual basis of jurisdiction will be difficult to challenge. Read the rest of this entry…

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An Exam Question on Diplomatic and Consular Law

Published on October 7, 2018        Author: 
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Kemal, a journalist and a national of the state of Azovia, is living in the state of Tiberia. One day he goes to the Azovian consulate in Kostantiniyye, a major Tiberian city, in order to obtain a divorce certificate, which he needs to marry his current fiancee. Kemal never emerges from the consulate. A few days later, Tiberian authorities publicly claim that Kemal was murdered by Azovian agents while he was in the consulate. The Azovian government denies these allegations. Assuming that the facts asserted by Tiberia are true, answer the following questions (in doing so, bear in mind that Azovia and Tiberia are both parties to the Vienna Convention on Consular Relations and the Vienna Convention on Diplomatic Relations; Tiberia is additionally a party to the International Covenant on Civil and Political Rights, which Azovia is not):

(1) Is Azovia responsible for an internationally wrongful act or acts, and if so, which one?

(2) If Tiberia had obtained reliable intelligence that Kemal was about to be murdered in the Azovian consulate in Kostantiniyye, would it have been (i) obliged to or (ii) permitted under international law to forcibly enter the premises of the consulate in order to save Kemal’s life?

(3) Would your answer to question (2) be any different if Kemal was murdered/about to be murdered in the Azovian embassy to Tiberia, rather than in its consulate?

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

Published on October 3, 2018        Author: 
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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).

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The ICC Pre-Trial Chamber’s Reading of “or” in the Myanmar Jurisdiction Ruling: On the Relevance of Linguistics to Interpretation

Published on October 2, 2018        Author:  and
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Linguistics continues to be a blind spot for international lawyers. Despite the self-perception that lawyers work predominantly with language, an in-depth inquiry into the actual science dealing with the phenomenon of language remains, to a large extent, a desideratum. Linguistics can, however, be very helpful in understanding the intended meaning of a word or phrase, as we will try to argue in this post. A good example of its usefulness and significance is provided in the recent decision of the ICC Pre-Trial Chamber on the Prosecutor’s request for a ruling on whether the Court may exercise jurisdiction over the alleged deportation of members of the Rohingya people from Myanmar to Bangladesh. In paras 52 ff., the Chamber had to interpret Article 7(1)(d) of the Rome Statute to establish whether the Article embodies either a single or two separate crimes, in light of the use of the word “or”. As will be be shown, the resulting interpretation of the word “or” demonstrates the usefulness of linguistic knowledge from which international law could draw in the future.

We hope that we are not seen as using a case featuring harrowing events as a mere façade for legal-intellectual exchanges. We suggest that a narrow technical approach is justified, particularly, in such important cases where so much depends on interpretation (e.g., the exact contours of jurisdiction of an international court).

Linguistics, semantics, pragmatics

International lawyers’ relationship with linguistics has been somewhat selective. In recent writing, some have used elements of corpus linguistics or discourse analysis to gain insights into international law. However, other modern aspects of studying meaning as a phenomenon in language seem to continuously escape international lawyers’ attention. For example, there is a certain tendency to refer to Wittgenstein’s Philosophical Investigations (1953) and his argument that words are defined by how they are used without putting his work in context (see e.g. recently Klabbers, International Law, Cambridge University Press 2017, p. 56). The progress that linguistics has made in the decades following the 1950s, in particular with regard to the semantics-pragmatics divide, is left aside as a consequence. Read the rest of this entry…

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Palestine Sues the United States in the ICJ re Jerusalem Embassy

Published on September 30, 2018        Author: 
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On Friday Palestine instituted proceedings against the United States of America before the International Court of Justice, claiming that the US violated the Vienna Convention on Diplomatic Relations by moving its embassy to Israel from Tel Aviv to Jerusalem. The application is here, the ICJ’s press release here; this is how the press release summarizes Palestine’s claim:

It is recalled in the Application that, on 6 December 2017, the President of the United States recognized Jerusalem as the capital of Israel and announced the relocation of the American Embassy in Israel from Tel Aviv to Jerusalem. The American Embassy in Jerusalem was then inaugurated on 14 May 2018.

Palestine contends that it flows from the Vienna Convention that the diplomatic mission of a sending State must be established on the territory of the receiving State. According to Palestine, in view of the special status of Jerusalem, “[t]he relocation of the United States Embassy in Israel to . . . Jerusalem constitutes a breach of the Vienna Convention”.

As basis for the Court’s jurisdiction, the Applicant invokes Article 1 of the Optional Protocol to the Vienna Convention concerning the Compulsory Settlement of Disputes. It notes that Palestine acceded to the Vienna Convention on 2 April 2014 and to the Optional Protocol on 22 March 2018, whereas the United States of America is a party to both these instruments since 13 November 1972.

In brief, Palestine argues that various articles of the VCDR, especially Article 3 thereof, require that the functions of the diplomatic mission be performed ‘in the receiving state,’ which means that the mission must be established in the receiving state. Jerusalem is not Israeli territory, and therefore moving the embassy there meant that it was not established in the receiving state. Ergo, there was a violation of the VCDR.

This case raises numerous issues, some obvious, some not. There are many objections that the US could raise, and will inevitably raise.

Read the rest of this entry…

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Painful Relations between the Council of Europe and Russia

Published on September 28, 2018        Author:  and
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During the forthcoming October part-session of the Parliamentary Assembly of the Council of Europe (PACE), it will vote on amending its rules of procedure. Normally such technical changes do not attract much public interest but this vote certainly will. Due to inappropriate pressure, considered by many as blackmail, the Russian (parliamentary) authorities have suggested that the Assembly’s rules ought not to permit the exclusion of national delegations from the Assembly. In other words, the Assembly should take away from itself its ultimate sanction, namely excluding a parliamentary delegation of the state that refuses to comply with Council of Europe’s fundamental values: human rights, the rule of law and pluralistic democracy. This can only be done once attempts to admonish or reprimand a state which breaches the rules of the democratic club have failed.

That said, the Committee of Ministers, the other statutory body of the Council of Europe, can suspend or expel a state which seriously violates the club’s rules. Expulsion is however a politically complex exercise. Article 8 of the Organisation’s Statute specifies that if a member state seriously violates founding principles of the rule of law and human rights, the Committee of Ministers can so decide. Read the rest of this entry…

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