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Home Archive for category "Human Rights"

The European Court of Human Rights’ View of the Draft Copenhagen Declaration

Published on February 23, 2018        Author:  and
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The draft Copenhagen Declaration has already triggered some debate at this blog. So far the tone has been highly critical. Donald and Leach denounce the Declaration as essentially a tool for institutionalizing undue political pressure on the European Court of Human Rights (ECtHR) that risks jeopardizing the Court – even European human rights at large. Geir and Føllesdal follow suit and declare that the Declaration‘s mantra of dialogue and shared responsibility is a thinly concealed attempt at weakening the court and empowering states.

The Court itself has now published its own Opinion on the draft Declaration and it has a strikingly different tenor than that of the cited academics. That difference, we will argue, is not simply the effect of different institutional roles, but also of a different appreciation of the problems facing the ECtHR in terms of case-load and the need for an enhanced and more structured dialogue between the major stakeholders in the system in order to safeguard the Court’s institutional authority.

In fact, the Court and its President, Guido Raimondi, have very openly recognized that the Court faces two fundamental challenges. In a speech in Nijmegen on 18 November, 2016, he noted that, first, ”the very high number of cases” was ”a cause of great concern to the Court”, but that it faced another fundamental challenge:

“The second challenge is of a different nature. It is essentially a political one. The challenge is to the very idea of the Convention system. It questions the authority, and even the legitimacy of the European Court of Human Rights.”

The draft Copenhagen Declaration is an attempt at addressing precisely these two fundamental challenges: caseload and authority. Read the rest of this entry…

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Gravity of the Past: Polish-Ukrainian Memory War and Freedom of Speech

Published on February 22, 2018        Author: 
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There is a power to the words ‘I remember’: the power of an event long past, exerting itself upon the present […] When the words begin a flow of warmth or love, it is a positive, binding power, but it is the most divisive and negative one possible when they lead on to events of death and destruction…

Ilana R. Bet-El

Collective memory matters politically: it provides a nation with an identity and common myth of origin, legitimizing power by creating a desired image of the past. This explains why states are preoccupied with memory, prescribing by law what has to be remembered and what must be forgotten. Revanchism, ethnic cleansing and war are all results of memory. The clash of historical narratives sponsored by states can destroy interstate relations. This happened in the case of Poland and Ukraine; these States were involved in memory war because of the attempts, from both sides, to instrumentilise history and use it for nationalist and populist goals.

These two countries were the ‘bloodlands’ during the Second World War. Yet, they have different memories of controversial events of the twentieth century. Describing the differing memories of the Polish-Ukrainian conflict Timothy Snyder writes:

[…] for patriotic Ukrainians the Organization of Ukrainian Nationalists created a moment of Ukrainian sovereign action by declaring a Ukrainian state under Nazi occupation in 1941 and a lasting memory of national heroism by their doomed struggle, for Poles its UPA [the Ukrainian Insurgent Army. – A.Ch.] was the organization which cleansed Poles from Western Ukraine in 1943 and 1944. Ukrainian patriots […] are unwilling to accept that the UPA did commit mass race murder in 1943-4. Poles […] are apt to believe that the anti-Ukrainian military operations of 1944-7 were a direct result (and a just one) of the UPA’s earlier ethnic cleansing. Both views are substantially incorrect. The UPA did indeed brutally murder […] Polish civilians in 1943-3. But in 1944-7 the Polish communist regime acted to ‘resolve the Ukrainian question in Poland’, not only to liquidate the UPA […]. [C]leansing actions (the word used at the time) […] was carried out in the name of the Ukrainian nation against Poles and in the name of the Polish nation against Ukrainians.

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The Draft Copenhagen Declaration: Whose Responsibility and Dialogue?

Published on February 22, 2018        Author:  and
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Scattered responsibility and Melian dialogue?

The Danish Chairmanship of the Council of Europe has proposed a new installation to the reform saga of the European Court of Human Rights (ECtHR). Their recipes sound innocuous: no one can be against ‘sharing responsibility’ for human rights protection, or for improved ‘dialogue’ between the Court and states. Yet some suspect that one may smile, and smile, and be a villain; at least it may be so in Denmark. Many fear that in the Danish details, sovereignty will trump human rights protection. Alice Donald and Philip Leach have provided detailed annotations to the Copenhagen draft in support of the criticism of eight NGOs in their joint response of 13 February 2018.

Broader trends and issues in the shadows of subsidiarity merit further attention, lest shared responsibility morphs into no one’s responsibility, and the discursive dialogue turns Melian, allowing state executives to do as they can and leave the Court to judge as it must.

States surely have grounds for concern about international courts, who have grown in numbers, functions and influence. State ambivalence is even greater about the ECtHR that allow individuals to challenge states. Still, some of the recent resisters are surprising. They count not only those with weak traditions for human rights and the rule of law, among the main suppliers of the large backlog of ECtHR cases – 57 350 by 31 January 2018. Vocal critics include Denmark and other states where little is rotten when it comes to human rights. One explanation may be prominent political parties’ general calls to renationalize authority from international institutions, further fueled by perceptions that the ECtHR protects bad people, criminals in particular, and hinders the defense of democracies under threat. Read the rest of this entry…

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A Wolf in Sheep’s Clothing: Why the Draft Copenhagen Declaration Must be Rewritten

Published on February 21, 2018        Author:  and
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The Danish Chairmanship of the Committee of Ministers of the Council of Europe has issued a draft declaration ahead of the High Level Conference of foreign ministers of the 47 states in Copenhagen on 12-13 April 2018.

Here, we argue that the Draft Copenhagen Declaration poses a grave risk to the independence, integrity and authority of the European Court of Human Rights – and, in turn, to the protection of human rights in Europe – and should be substantially rewritten. Our concerns echo those raised in a detailed joint response to the draft declaration issued by eight non-government organisations that have monitored and participated in the process of ameliorating the Convention system, including at the high-level conference in Kokkedal in November 2017, after which the NGOs expressed disquiet over the proposed approach of the Danish Chairmanship.

That disquiet is borne out by both the tone and content of the draft declaration. While it professes to respect the Court, its leitmotif is a misconstrued understanding of the principle of subsidiarity, which underpins proposals that would seriously infringe on the role and jurisdiction of the Court and potentially expose it to permanent political pressure from states. Moreover, the draft declaration contains errors, contradictions and indeterminate proposals that would, if they are not removed, become dangerous weapons in the hands of those who bear ill-will to the Convention system, undermining it through weak implementation and/or politicised attacks (see here and here).

In so doing, the draft declaration irresponsibly squanders the opportunity to build upon the Brussels Declaration of March 2015 by reinforcing the imperative on states to strengthen national implementation of the European Convention on Human Rights and judgments of the Court.

Below, we contextualise the Copenhagen process before explaining our principal concerns about the tenor of this dangerous draft in terms of how it misconstrues subsidiarity and the margin of appreciation, undermines the universality of human rights, and creates channels for states to apply political pressure on the Court. Further, we highlight an unexplained and extremely worrying proposal to remove human rights litigation arising from armed conflict from the Court’s remit. Read the rest of this entry…

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A Cold War like Thriller in Summer – Icy Times Between Vietnam and Germany

Published on February 20, 2018        Author:  and
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If “all options are on the table” in the international arena, it is a reliable indicator that the stakes are high. We still recall when President Trump put all options on the table in August last year responding to North Korean missile tests. Just a few days before, Germany, usually not known for Trumpish rhetoric, also placed “all options on the table” in a dispute with Vietnam. This was not because Germany was concerned about a nuclear escalation. Germany was responding to a kidnapping of a Vietnamese citizen and asylum seeker, which Germany’s foreign minister accurately described as something “we believe one sees only in sinister thrillers about the cold war.”

Trinh Xuan Thanh, a former high-profile constructive executive, for whom Vietnam issued an international arrest warrant for corruption, sought refuge in Germany. Thanh however never showed up for the hearing scheduled in his asylum case. Instead, a few days later, he appeared haggard-looking on Vietnamese television. Vietnam stated Thanh had voluntarily turned himself in.  Germany presents a different version of Thanh’s return, accusing Vietnam of abduction. Purportedly, witnesses saw armed men dragging Thanh into a rental car in the middle of Berlin. After a stopover at the Vietnamese embassy, it is believed that he was clandestinely transported by ambulance to Eastern Europe from where he was flown to Vietnam.  Germany had no doubts that Vietnamese officials were responsible. On February 5, the second trial against Thanh concluded. While he escaped the impending death penalty, he received two life sentences for embezzlement. Read the rest of this entry…

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Je Suis Achbita!

Published on February 19, 2018        Author: 
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Achbita, decided in March 2017 is not a run of the mill case. It raised what I think are hugely difficult conceptual legal issues. It also comes at a delicate moment in the social and political life of Europe, where the Court of Justice of the European Union is an important actor in shaping the climate and defining the moral identity in and of Europe. I do not believe the Preliminary Ruling of the ECJ comes even close to what one may expect from the supreme judicial voice of justice of our Union in a case of this nature.

The case concerned, as you will know, a Muslim woman whose employer insisted in the name of a neutrality policy of the Company that she may not wear the hijab (a head scarf) to work, and thus she lost her job. I think it is a fair reading of the ruling sent back to the referring Belgian Court that other than checking that the company, without overly burdening itself, could not find a place for Achbita in a back office which would not bring her into contact with the public, the Court had no major problems with the company’s policy compliance with the specific Directive bringing the case within the jurisdiction of European Law and the overriding human rights controlling norms such as the ECHR and the EU Charter of Fundamental Rights.

I will present the case, for reasons which I will explain below, with a slightly different factual matrix.

Chaya Levi lives in Antwerp. She is part of the large Jewish Hassidic community in that town. She, like other members of that community, follows the strict norms of Orthodox Judaism. Some refer to them as Ultra-Orthodox. She works as a receptionist in a general services company which, inter alia, offers reception services to customers in the private and public sectors. As a receptionist she comes into contact with customers. No fault is found with her job performance. Chaya Levi falls in love and marries Moses Cohen of her community. Under Jewish law she now must wear a scarf covering her hair, not unlike the Islamic headscarf. In Antwerp this is an immediate tell-tale sign that she is an observant Jewess. Read the rest of this entry…

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Environmental Damages, Environmental Reparations, and the Right to a Healthy Environment: The ICJ Compensation Judgment in Costa Rica v. Nicaragua and the IACtHR Advisory Opinion on Marine Protection for the Greater Caribbean

Published on February 14, 2018        Author: 
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On 2 February 2018, the International Court of Justice issued a landmark judgment on compensation for environmental damages in Certain Activities Carried Out By Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation Owed by the Republic of Nicaragua to the Republic of Costa RicaThe ICJ’s decision was followed shortly thereafter on 9 February 2018 by a significant Advisory Opinion of the Inter-American Court of Human Rights (IACtHR), declaring the fundamental importance of the right to a healthy environment to human existence and States’ corollary obligations to protect human rights through marine environmental protection in the Greater Caribbean region (summary report of the Advisory Opinion in English found here, while the full text of Colombia’s request for advisory opinion on this question can be found here). The 2 February 2018 ICJ Compensation Judgment follows its 16 December 2015 Judgment declaring Nicaragua liable for activities in Costa Rican territory, such as the excavation of three caños and establishment of military presence in said territory (see my previous comments on evidentiary approaches in this 2015 Merits Judgment here.)

While both the 2 February 2018 ICJ judgment on compensation and the 9 February 2018 IACtHR Advisory Opinion signify the central importance of international environmental norms to international human rights law, the methodological approaches taken by the World Court and the regional human rights court for Latin America reveal some sharp differences between these tribunals.  In adjudging compensation for environmental damages caused by Nicaragua to Costa Rica, the ICJ took a rather ‘incrementalist’ approach to quantification and empirical proof for every head of damage asserted – a methodologically ambiguous and context-sensitive approach which is not easily replicable for future environmental cases, given the complex nature of environmental damages in any given dispute.  The ICJ did not adopt Costa Rica’s theory of an “ecosystem approach” to damage assessment, and neither did it adopt Nicaragua’s position that “replacement costs” be used to estimate environmental damages.  Unlike the IACtHR Advisory Opinion’s broad acceptance of States’ continuing individual obligations towards preventing transboundary harm that could ensue from infrastructure projects in the Greater Caribbean, the ICJ Judgment carefully reduced Costa Rica’s claim of compensation by delineating between Nicaragua’s compensatory duties as part of environmental reparations, and Costa Rica’s own environmental mitigation duties in the presence of foreseeable environmental damage.  These recent developments suggest that, while it is recognized that all States share responsibilities towards environmental protection especially under the precautionary principle, the precise allocation of environmental reparations owed through compensation will not always lie strictly on the side of the State that is the environmental tortfeasor, at least where the ICJ is concerned.

The following subsections summarize the 2 February 2018 ICJ Judgment reasoning on compensation, the 9 February 2018 IACtHR Advisory Opinion, and conclude with some comments on methodologies used for damages assessment and environmental reparations, especially in the thorny form of lump-sum upfront compensation for environmental damage impacting present and future generations.

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Council of Europe’s Committee of Ministers Starts Infringement Proceedings in Mammadov v. Azerbaijan: A Victory for the International Rule of Law?

Published on February 5, 2018        Author:  and
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On 5 December 2017 it finally happened: the Committee of Ministers of the Council of Europe (‘the Committee’) launched for the first time ever in the history of the European Convention of Human Rights (‘ECHR’) infringement proceedings for non-implementation of a judgment of the European Court of Human Rights (‘ECtHR’), namely against Azerbaijan concerning the Mammadov case. While this development has already, and rightly so, been described as “nuclear” and “historic” elsewhere in the blogosphere, it still warrants some further analysis.

Supervision of the execution of judgments of the ECtHR: Infringement proceedings

Under Article 46 § 2 ECHR, it is the Committee that supervises the execution of the judgments of the ECtHR. According to article 46 § 4 ECHR, it may refer to the Court the question whether a given member State has fulfilled its obligation to abide by a judgment in a case to which it is a party. These so-called infringement proceedings were introduced in 2010 under Protocol No° 14 to provide the Committee with a wider range of means of pressure so as to better secure the execution of the Court’s judgments. So far, however, launching such proceedings had remained a mere theoretical possibility. Despite calls from both civil society and scholars, the Committee, a political body made up by diplomats from each member State, had either been unwilling to use this mechanism, or had never attained the necessary two-thirds-majority required for such a court referral.

There certainly is no lack of execution problems in the Strasbourg system, and it seems that in the last years such problems have rather increased than decreased. It suffices to refer to the non-implementation of the 2009 Sejdic and Finci judgment by Bosnia and Herzegovina, the 12-year-long saga around the UK’s prisoner voting case Hirst (which, however, by now seems to have been resolved, albeit maybe not fully), the Russian opposition to judgments from the ECtHR, and Italy’s almost perpetual struggles to reform its judiciary after thousands of ECtHR’s judgments identifying structural problems that go back to the 1990s as only some of the most prominent examples, as well as the non-implementation by Ukraine of the Ivanov pilot judgment leading to the recent dismissal of more than 12.000 applications in the Burmych case. Yet it is only the Mammodov case which has now brought the Committee to take action under article 46 § 2 ECHR. Read the rest of this entry…

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Torture in Libya and Questions of EU Member State Complicity

Published on January 11, 2018        Author: 
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Amnesty International has reported that ‘tens of thousands’ of refugees and migrants are being subject to torture and other human rights abuses at the hands of Libyan state officials and non-state actors operating in, and out of, Libya (the full report can be accessed here). The publication of the report has led to allegations that the European Union (EU) is complicit in torture. One finding of the report is that ‘EU member states are and have been well aware of the widespread human rights violations and abuses suffered by refugees and migrants in Libya’ (p. 56). Amnesty International has claimed that EU states ‘are complicit’ in torture. Whether the complicity spoken of can trigger the responsibility of these states under international law is implied, but far from clear.

There are many tangents to questions of ‘European complicity’ in the torture of Libyan refugees and migrants. For example, issues regarding the obligation of non-refoulement (p. 53 of report), or the extraterritorial application of human rights obligations (pp. 54-56) (for insights on these particular matters see Gauci and Jackson respectively). The following post will briefly analyse the applicable secondary rules relating to how EU states could be held responsible for complicity in torture under general international law in light of the facts contained in the Amnesty report. Read the rest of this entry…

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