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More on the Duty to Warn Persons Threatened by Foreign Intelligence Services

Published on June 10, 2019        Author: 
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I recently wrote on the blog about the obligation of states, arising from their duty to protect the right to life under human rights law, to warn individuals subject to their jurisdiction of any real and immediate risk to their life, bodily integrity, or liberty and security of person, posed by foreign intelligence services. That duty arises if the state knows, or ought to know, of such a threat, i.e. if the threat is reasonably foreseeable to it. I’ve argued in that regard how it cannot be conclusively established, but may be so established after further factual inqury, that the United States or Turkey had enough relevant information in their possession to trigger their protective obligation with regard to Jamal Khashoggi and the threat posed to his life by agents of Saudi Arabia. If that obligation was triggered, however, the duty to warn Khashoggi arose, whereas no such warning was given to him before his assassination in the Saudi consulate in Istanbul.

As I have explained in my previous post, and in more detail in my full paper, the duty to warn does not impose unreasonable burdens on states engaged in intelligence-gathering activities. First, it is subject to a jurisdictional threshold, which may be looser, per the Human Rights Committee’s new functional approach to the extraterritorial application of the right to life, or stricter, per the more traditional spatial or personal conceptions of jurisdiction. Opinions will clearly differ in this regard as to which approach should prevail. The key point here, however, is that a state lacking the capacity to fulfil the duty to warn will never be expected to have to do so. Second, the duty will only be engaged if a specific unlawful threat to the life of an individual was reasonably foreseeable to the state. Third, the duty to warn is one of due diligence, and the state can take a number of relevant considerations into account in deciding on how to fulfil it. It might, for example, choose to convey the substance of the threat in a way that will avoid any risk of compromising intelligence-gathering sources and methods. It might choose to do so through an intermediary, such as a relevant agency of a partner state. In the vast majority of conceivable circumstances the state will be able to convey a warning without compromising its essential interests in any meaningful way. Granted, the state will have to devote some resources towards actually complying with the obligation. But such an expectation is not unreasonable, especially bearing in mind that this rather modest burden will usually fall on the wealthiest, most powerful states in possession of an extensive foreign intelligence apparatus, whose ultimate purpose should after all be the safeguarding of human life.

Importantly, in the past month or so, the CIA and partner security services have actually warned three associaties of Khashoggi of a Saudi threat against them, demonstrating that the duty to warn does not, in fact, impose unreasonable burdens on state authorities and that it can effectively be complied with.

First, after obtaining information about a specific threat from the CIA, the Norwegian security services warned a prominent Arab pro-democracy activist and vocal critic of the Saudi crown prince, who has been granted asylum and is living in Norway. As the Guardian reports:

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A Hypothetical on Deprivation of Liberty and Torture

Published on May 31, 2019        Author: 
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In light of today’s rather extraordinary statement by Prof. Nils Melzer, the UN Special Rapporteur on torture and other forms of cruel, inhuman or degrading treatment or punishment, that Julian Assange has been subjected not only to arbitrary deprivation of liberty, but also to a sustained campaign of collective persecution, the results of which were tantamount to psychological torture, here’s a brief hypothetical that can hopefully shed some light on Assange’s legal situation:

Variant 1: A is a human rights defender living and working in Dystopia, a highly authoritarian police state. He has helped countless people in his work, to much international acclaim. One day he receives reliable information that a Dystopian court has ordered his arrest, on charges of sedition, and that if convicted (which seems very likely) he could spend many years in prison. A decides to evade the police seeking to arrest him.  With the help of friends, A finds refuge in a cave in a remote location. He spends 7 years in that cave, with very little human contact, fearful that if he ever left the cave the police would find him and arrest him. The years take their toll. A starts suffering from a number of physical ailments. Even worse, the virtually total separation from his family, friends and the outside world eventually leads to serious impairment to his mental health, including severe anxiety and depression. After 7 years, the Dystopian police discover A’s hiding place and arrest him.

Questions: (1) While A was in the cave, was he subjected to a deprivation of liberty by the state of Dystopia? (2) If so, was that deprivation of liberty arbitrary? (3) In any event, do the accumulated consequences to A’s mental and physical health, due to the extended period of time he spent in the cave hiding from Dystopian authorities, qualify as torture or cruel, inhuman or degrading treatment of A on the part of the state of Dystopia?

Variant 2: R is the highest-ranking general of the army of a separatist regime in Anarchia, a country ravaged by a sectarian civil war. The International Criminal Court has issued a warrant for R’s arrest for war crimes and crimes against humanity on a massive scale; he is suspected of leading a campaign of ethnic cleansing which claimed the lives of tens of thousands of people. After the Anarchian civil war ends in the victory of his opponents, R decides to go into hiding. With the help of friends, R finds refuge in a cave in a remote location. He spends 7 years in that cave, with very little human contact, fearful that the Anarchian government authorities will arrest him and send him to The Hague for trial. The years take their toll. R starts suffering from a number of physical ailments. Even worse, the virtually total separation from his family, friends and the outside world eventually leads to serious impairment to his mental health, including severe anxiety and depression. After 7 years, the Anarchian police discover R’s hiding place and arrest him.

Questions: (1) While R was in the cave, was he subjected to a deprivation of liberty by the state of Anarchia? (2) If so, was that deprivation of liberty arbitrary? (3) In any event, do the accumulated consequences to R’s mental and physical health, due to the extended period of time he spent in the cave hiding from Anarchian authorities, qualify as torture or cruel, inhuman or degrading treatment of R on the part of the state of Anarchia? (4) If you have answered any of the preceding questions differently than their counterparts in Variant 1, please explain why you have done so.

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Passportisation: Risks for International Law and Stability – Response to Anne Peters

Published on May 30, 2019        Author: 
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Introduction

Anne Peters’ EJIL Talk! blog post Passportization: Risks for International Law and Stability regarding actions of the Russian Federation as regards applications for Russian nationality for persons living in certain parts of Ukraine (see here and here) raises important and interesting questions. With respect I believe that (i) the post overstates the assistance available from the international law concerned directly with nationality, (ii) evaluating the extent of that law is a worthwhile endeavour, and (iii) something like Prof Dr Peters’ final conclusion may be ultimately reached by a different route, by reference not to the particular principles related to nationality in international law but to the actions of the Russian Federation taken in their overall factual context.

International law re nationality: background

Nationality is closely linked to sovereignty, and nationality issues may well become a source of conflict between or amongst States. Since the Advisory Opinion of the Permanent Court of International Justice in Nationality Decrees Issued in Tunis and Morocco on 8 November 1921, Advisory Opinion, 1923, PCIJ (ser B) No 4 (7 February 1923) questions regarding nationality are no longer considered, as was often the case earlier, to lie exclusively within the ambit of each State. The 1930 Convention on Certain Questions Relating to the Conflict of Nationality Laws records respectively at article 1 that:

It is for each State to determine under its own law who are its nationals’ and that nationality ‘shall be recognised by other Statesso far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.

By article 2:

Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State.

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Filed under: Human Rights
 

An Unforeseen Pandora’s Box? Absolute Non-Refoulement Obligations under Article 5 of the ILC Draft Articles on Crimes Against Humanity

Published on May 20, 2019        Author: 
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Introduction

In 2013, the International Law Commission (ILC) added to its long-term work programme the topic of a convention on the prevention and punishment of crimes against humanity. This proposed convention is meant to join sibling conventions addressing genocide and war crimes and would stand in the tradition of other conventions addressing serious crimes, such as torture and enforced disappearance. So far, the ILC has adopted 15 Draft Articles which include a wide range of obligations for future State parties regarding the prevention of crimes against humanity, as well as on measures relating to domestic criminalization, mutual legal assistance and extradition. This blog post, however, focusses on Draft Article 5, which includes an absolute non-refoulement obligation with regard to crimes against humanity:

Article 5 Non-refoulement 

  1. No State shall expel, return (refouler), surrender or extradite a person to territory under the jurisdiction of another State where there are substantial grounds for believing that he or she would be in danger of being subjected to a crime against humanity.
  2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the territory under the jurisdiction of the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law.

While the commentary on the Draft Articles argues that most States consider Article 5 to be a mere codification exercise and consistent with existing obligations under international human rights law (IHRL), some states such as the USA, UK and Jordan have expressed their concern that Draft Article 5 constitutes a progressive development of the law and introduces new, mandatory standards of non-refoulement protection. This post makes three main claims. First, that Draft Article 5 does indeed constitute a progressive development of the law and would supersede the current non-refoulement regime under both refugee and human rights law. Second, that although the proposed new regime would increase the protection of individuals from refoulement, it does so in a rather arbitrary fashion. Lastly, that this new regime will further restrict the ability of states to expel or return unwanted individuals who have committed serious crimes or constitute a danger to their community and could therefore trigger a significant political backlash once the Draft Articles reach the level of political decision makers in the future member states of the Convention. Read the rest of this entry…

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Application of the CERD Convention (Qatar v UAE) and “Parallel Proceedings” before the CERD Committee and the ICJ

Published on May 17, 2019        Author: 
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Last week, the International Court of Justice held hearings to consider the United Arab Emirates request for provisional measures in the Case concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. UAE).  The UAE’s requests are unusual in at least two ways. First these requests constitute the second request for provisional measures in the case, with the first requests considered by the Court last year. Second, and more unusually, this is a rare instance of the respondent state (and one which challenges the jurisdiction of the Court to hear the case) requesting provisional measures. 

The UAE has made requests under four grounds, but I would like to focus on the first, that: ‘(i) Qatar immediately withdraw its Communication submitted to the CERD Committee [the Committee on the Elimination of Racial Discrimination] pursuant to Article 11 of the CERD on 8 March 2018 against the UAE’. The request raises the question of whether international law has developed a principle of lis pendens such that parallel proceedings before different international bodies should be disallowed. It also engages the issue in previous caselaw of whether the preconditions of Article 22 are alternative or cumulative.

Two mechanisms for inter-state disputes under the CERD

The International Convention on the Elimination of All Forms of Racial Discrimination (the CERD Convention) contains two mechanisms for inter-state “complaints”. First, Articles 11-13 provide for inter-state communications whereby one state party, considering that another state party is not giving effect to the provisions of the Convention, may bring the matter to the attention of the CERD Committee. Second, Article 22 provides that any dispute between two or more states parties with respect to the interpretation or application of the Convention, which is not settled by negotiation or by the procedures expressly provided for in the Convention, can be referred to the ICJ for decision. Read the rest of this entry…

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Passportisation: Risks for international law and stability – Part II

Published on May 10, 2019        Author: 
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Editor note: This is Part II of a two-part post. See Part I here.

Part One of the blogpost examined the recent Russian decrees on a fast track procedure for conferring Russian nationality on inhabitants of Eastern Ukraine and explained international legal principles which govern such extraterritorial naturalisations. 

III. Striking the Balance: International Legal Limits on Passportisation

The conflicting individual and governmental interests and the overarching global value of a stable repartition of jurisdictions are reconciled by posing specific legal limits on the power of a state to naturalise citizens of another state.

The Prohibition of an Arbitrary Refusal to Release One’s Nationals

The prohibition of arbitrary decisions concerning nationality issues has emerged as a standard of reference in the international law of nationality. The Report of the UN Secretary General, Human Rights and Arbitrary Deprivation of Nationality, 14 December 2009 (A/HRC/13/34), stated that “[T]he notion of arbitrariness could be interpreted to include not only acts that are against the law but, more broadly, elements of inappropriateness, injustice and lack of predictability also” (para. 25).

A state may not categorically and without any legitimate reason (i.e. arbitrarily) prevent its citizens from acquiring a different citizenship. Inversely, a state may validly oppose the naturalisation of its citizens if its governmental interests outweigh both the interests of the concerned natural persons and the interests of the naturalising state. In that case, the refusal to release its national would not be arbitrary. A state’s refusal to release a national who continues to reside within its own territory is presumptively not arbitrary.

The Requirement of a Factual Connection

International law has traditionally required that there be a factual relationship between the person to be naturalised and the naturalising state. It has never allowed a state to confer its nationality by naturalisation upon persons possessing the nationality of another state and to whom the conferring state has no factual relation at all. Read the rest of this entry…

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Filed under: EJIL Analysis, Human Rights
 

Passportisation: Risks for international law and stability – Part I

Published on May 9, 2019        Author: 
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I. Fast track to Russian nationality

On 24 April 2019, the Russian President issued an Executive Order identifying groups of persons entitled to a “fast-track procedure” when applying for Russian citizenship otherwise regulated by the Russian Law on Citizenship (Federal Law No. 62-FZ of 31 May 2002). The decree facilitates the acquisition of Russian nationality by residents from various districts of Ukraine’s Donetsk and Lugansk regions, notably without taking residency in Russia. The regions border Russia and are struck by a military conflict between the central government and separatist forces under heavy involvement of Russia. On 1st May 2019, the President issued a second “Executive Order on Certain Categories of Foreign Citizens and Stateless Persons Entitled to a Fast-Track Procedure when Applying for Russian Citizenship”. The new fast track procedure is potentially open to around 4 million people living in the conflict area of Eastern Ukraine.

In the Security Council of 25 April 2019, the representative of the Russian Federation explained “that there is a high demand for Russian citizenship among people from south-eastern Ukraine whose living conditions Kyiv has made intolerable. In other words, Russia’s legislative initiative is a response to the aspirations of many thousands of people. It is not we who are forcing them to become Russian citizens but rather they themselves who desire it. We are simply providing them with an opportunity and significantly simplifying the process. (…) Why was it done? The conflict in Donbas has been going on for five years. For five years, the inhabitants of Donbas have been deprived of the ability to exercise their human rights and freedoms in Ukraine. They were denied the right to vote in the recent presidential elections.” “[T]he residents of Donetsk and Luhansk (…) have been deprived of income sources, pensions and benefits that other Ukrainian citizens are entitled to. They would not have survived without Russia (…). The people of Donetsk and Luhansk deserve to have reliable State care and social protection once again. (…) They are getting none of that from the Ukrainian Government, and we therefore felt compelled to offer them assistance.” (Vassily A. Nebenzia, Security Council 8516th meeting, Verbatim Record, UN Doc S/PV.8516, p. 15-16). The decrees might also respond to the Ukrainian draft language law which establishes Ukrainian as the language of the state and relegates Russian to a regional language (Bill №5670-d, reading in Parliament on 25 April 2019, not yet in force ).

The recently elected President of Ukraine spoke of “another unprecedented interference of the Russian Federation in the internal affairs of an independent state, a brutal violation of sovereignty, territorial integrity and independence of Ukraine and a complete trampling upon its obligations in the framework of the Minsk agreements. In addition, the Kremlin therefore deliberately and cynically violates international humanitarian law, which prohibits the occupation authorities from changing the citizenship of the inhabitants of the occupied territories.” (24 April 2019).

In the UN Security Council Meeting of 25 April 2019, numerous delegates criticised the Russian measures. The Slovak OSCE Chairmanship expressed “deep concern”.

The recent decrees inscribe themselves in an overall Russian policy of generously conferring its nationality on residents of those states which emerged from the break-up of the Soviet Union. In Crimea, an active Russian “passportisation” policy had allegedly been pursued since 1991, until the peninsula was annexed by Russia in 2014. In two breakaway territories of Georgia, Abkhazia and South Ossetia, passportisation was rampant especially around 2002 (see the analysis in: Independent International Fact-Finding Mission on the Conflict in Georgia, Report (“Tagliavini Report”), vol. II, Chapter 3). Russia also offers easy Russian nationality to inhabitants of Transnistria (in Moldowa).

This two part-blogpost shows that the Russian “passportisation” policy (i.e. the policy of conferring Russian nationality en masse to persons residing outside Russia) is in many respects exorbitant and risks to violate various principles of international law. Part One examines the governing principles, Part Two balances these principles, applies them to the current case, and examines the legal consequences of  exorbitant naturalisations.  Read the rest of this entry…

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Filed under: EJIL Analysis, Human Rights
 

Corporate Responsibility for Human Rights Violations: UK Supreme Court Allows Zambian Communities to Pursue Civil Suit Against UK Domiciled Parent Company

Published on April 24, 2019        Author:  and
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On 10 April 2019, the UK Supreme Court held unanimously, in Vedanta Resources PLC and another v Lungowe and others [2019] UKSC 20, that Vedanta Resources, a UK company, arguably owes a duty of care to villagers living in the vicinity of its Zambian subsidiary, Konkola Copper Mines Plc (KCM). Ruling on a procedural appeal, by upholding the jurisdiction of the UK courts, this landmark judgment allows the claimants, 1826 Zambian villagers, to pursue their case against both the parent and subsidiary companies in the UK. The core legal question, whether a parent company can be held accountable under civil law for human rights violations and environmental harm caused by its foreign subsidiary, is central to the ability of many victims of corporate human rights violations worldwide to access justice. The case provides an example of how public international law principles (such as those on corporate responsibility espoused in the United Nations Guiding Principles on Business and Human Rights (UNGPs)) can be realised and achieved though domestic civil law.

Readers may be aware that three inter-related pillars underpin the UNGPs: first, the State duty to protect human rights; second, the corporate responsibility to respect human rights; and third, access to remedy. Relevantly, Guiding Principle 25, in Pillar III, reminds States to “take appropriate steps to ensure” that those affected by business-related human rights abuses within their territory and/or jurisdiction “have access to an effective remedy”. Principle 26 further identifies the need for States to ensure the effectiveness of these remedies, including by removing barriers that can lead to a denial to access to justice.

Two of the intervenors in this case (Corporate Responsibility Coalition Ltd (CORE) and the International Commission of Jurists) wrote a joint submission that sought to support the notion that Vedanta arguably owed a duty of care to the affected communities with reference to international standards and jurisprudence regarding corporate responsibility in relation to human rights and environmental protections. They pointed out that the UK Government explicitly:

stresses the importance of victims being able to secure access to justice in respect of wrongdoing by UK-based business enterprises both domestically and overseas, and indicates that such persons should have access to remedies through the judicial mechanisms of the UK itself.”

In particular, the Government publication Good Business: Implementing the UN Guiding Principles on Business and Human Rights (through which the UK advocates for the implementation of the UNGPs) notes that civil law claims are one remedial avenue in relation to human rights abuses committed overseas by corporations. The interveners further refer to a number of other international standards that aim to increase corporate accountability for human rights and environmental abuses. Robert McCorquodale, counsel representing the intervention of in the case, notes here of his disappointment that the Court did not refer to these international standards in its decision. But even without explicit reference, this case can surely be viewed as a step towards implementing the UNGPs with respect to access to justice, through its removal of obstacles for redress. The specifics of the court’s consideration of access to justice are canvassed in the sections below. Read the rest of this entry…

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Filed under: Human Rights
 

The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to Life – Part V: Conclusion

Published on April 18, 2019        Author: 
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The murder of Jamal Khashoggi is in many respects a truly extraordinary case. But it is by no means unique – authoritarian states assassinate journalists and political dissidents with some frequency. The use of consular premises as the scene of the killing is, of course, one special feature of this affair. And while diplomatic and consular privileges and immunities are abused all the time, this is not normally done in so spectacular a fashion.

What makes Khashoggi’s killing so fascinating from the standpoint of an international legal analysis is the interplay between the human right to life and the rules of diplomatic and consular law. However, as I have explained, most of the possible norm conflicts between immunities and the right to life could have been avoided in Khashoggi’s case. This is primarily because Khashoggi was killed on the premises of a consulate and not those of a diplomatic mission, and because consular privileges and immunities are significantly weaker than diplomatic ones.

It is therefore unclear why Turkey acted as if international law laid such obstacles in front of it, when in doing so it actually exposed itself to legal liability under IHRL for failing to effectively investigate Khashoggi’s death. There are several possible explanations. First, Turkey could have genuinely misunderstood the legal position, failing to appreciate the attenuated nature of consular immunities. The confusion of consular privileges and immunities with the more expansive diplomatic versions has certainly been pervasive in the coverage of the Khashoggi affair. In fact, in a speech in parliament President Erdogan lamented the fact that the ‘Vienna Convention’ – he did not specify which – inhibited the investigation through the ‘diplomatic immunity’ it provided for, commenting that it may need to be reviewed or revised.

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