magnify
Home Archive for category "Human Rights"

New EJIL: Live! Interview with Dr Veronika Fikfak

Published on February 15, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Dr Veronika Fikfak, Senior Lecturer in Law at the University of Cambridge, whose article “Changing State Behaviour: Damages before the European Court of Human Rights”, appears in EJIL’s 29:4 issue.

In her pioneering article, Dr Fikfak analyses the ECtHR’s practice of awarding damages. She and a team of researchers spent three years coding 12,000 decisions of the Court, seeking to understand which variables in a case – relating to the victim, the state and the events that occurred – affect the amount of damages awarded and subsequent compliance. In this conversation Dr Fikfak talks about her motivation for undertaking this study, the premises upon which it is based and the surprising results that emerged. The interview was recorded at the IE Law School, Madrid.

EJIL: Live! is the official podcast of the European Journal of International Law (EJIL), one of the world’s leading international law journals. Regular episodes of EJIL: Live! are released following the publication of each quarterly issue of the Journal, and include interviews with the authors of articles appearing in that issue as well as news and reviews when possible. Additional episodes, EJIL: Live! Extras, are also released from time to time to address a range of topical issues. Episodes of EJIL: Live! can be accessed via the EJIL website and this blog. Comments and reactions to EJIL:Live! episodes are welcome, and may be submitted below. 

Print Friendly, PDF & Email
Filed under: EJIL, EJIL: Live!, Human Rights
 
Tags:

A Positive Take on the Legacy of the 1978 Judgment in Ireland v. United Kingdom

Published on February 7, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

In September 2018, a request by the Irish Government to refer the Ireland v. United Kingdom revision case to the Grand Chamber of the European Court of Human Rights (ECtHR) was refused, closing a door that had been reopened after forty years. The fact that the ECtHR arrived at a finding of inhuman and degrading treatment ‘only’ has been maligned. In this post, I’d like to highlight an alternative perspective and suggest that this judgment elevated the gravity of the ‘other’ forms of treatment and set in motion a pioneering approach to the interpretation of Article 3 ECHR.

Subsequent to the Chamber judgment in March 2018, there was much debate (including in this blog) about whether the ECtHR should have revised its 1978 finding of inhuman and degrading treatment in light of the additional evidence. Some have supported the ECtHR’s exercise of restraint in the use of its exceptional revision powers under Rule 80 of the Rules of Court, pointing out the need for legal certainty. Others have critiqued the Court’s approach to the new evidence or have lamented the Court’s failure to follow the European Commission on Human Rights’ finding of torture, opening the door to manipulation of the torture-versus-ill-treatment distinction. All have opined that the facts of the case would give rise to a finding of torture today.

A further commonality across the commentary is that all refer to the finding of inhuman and degrading treatment ‘only’. The 2018 judgment itself describes the applicant Government’s request for the Court to find that the ‘five techniques’ ‘amounted to a practice not merely of inhuman and degrading treatment but of torture within the meaning of Article 3 of the Convention’ (para. 8). In the context of these debates, and the revision request itself, the distinction between torture and inhuman and degrading treatment ‘only’ has been amplified. That is, there is a pervasive and implicit sense that inhuman and degrading treatment is in some way not as bad as torture. In 2018, as was observed in 1978, the Court’s failure to arrive at a finding of torture overshadowed the finding of inhuman and degrading treatment. Read the rest of this entry…

Print Friendly, PDF & Email
 
Tags: ,

WTO Dispute on the US Human Rights Sanctions is Looming on the Horizon

Published on January 31, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

At the turn of the year, Venezuela initiated a WTO dispute with the United States. In a nutshell, Venezuela questions WTO-consistency of a number of coercive trade-restrictive measures (economic sanctions) imposed by the United States. Some of those restrictions were allegedly imposed on the human rights grounds.

US sanctions against Venezuela

The United States has been consistently imposing trade-restrictive measures against Venezuela, yet none of them has ever been challenged at the WTO. Most likely, the last wave of such restrictions is a spark that lit the fuse. In recent years, the Trump Administration introduced additional restrictions on Venezuela’s financial sector, leaving the country’s finances in shambles, as well as sanctions directed against the country’s gold sector. According to the media reports published in January 2019, the United States considers even tougher sanctions, particularly the ones that can impede Venezuela’s oil industry.

Human rights sanctions against Venezuela

The United States is notorious for its practice of economic coercion, which has been debated at length within the international community. Economic measures imposed to promote human rights entered the US foreign policy agenda under President Carter. In the following decades, the US has made ample use of them. 

In December 2014, the US Congress enacted the Venezuela Defense of Human Rights and Civil Society Act of 2014. The enactment of the act was triggered by a number of events, particularly by the deteriorated living standards and the violent crackdown on the anti-government protesters. The act authorizes the President to impose various targeted sanctions, – sanctions against current or former government officials responsible for acts of violence or serious human rights abuses against protesters. The ambit of such sanctions includes blocking of assets of the designated individuals as well as travel restrictions. In pursuit of its authority, President Obama declared the national emergency in respect of the situation in Venezuela and issued an Executive Order 13692 of March 8, 2015, which implements the aforesaid human rights sanctions.

Read the rest of this entry…

Print Friendly, PDF & Email
 

Liability of an Assisting Army for Detainee Abuse by Local Forces: The Danish High Court Judgment in Green Desert

Published on January 24, 2019        Author:  and
Twitter
Facebook
Google+
LinkedIn
Follow by Email

This comment sets out to discuss the judgment of the Danish High Court (Eastern Division) in what is known as the Iraq or Green Desert Case (B344808J – HBJ). The judgment, delivered in June 2018 and available in Danish only, has received limited attention outside Denmark. It is significant in that it establishes liability for Danish forces for ill-treatment of Iraqi detainees by Iraqi security forces, in circumstances in which Danish forces were found not to have taken part in the arrests and subsequent abuse of detainees, nor to have exercised command over Iraqi forces. Danish forces had only ‘coordinating authority’ which did not permit the issuing of orders to Iraqi forces. Liability was nonetheless established on the basis that, at the time of the decision to take part in this joint military operation (‘Operation Green Desert’) in November 2004, the Ministry of Defence (MoD), the Defence Command or the Danish Battalion should have known that there was ‘a real risk that persons detained during the operation would be subject to inhuman treatment in Iraqi custody during the further investigation’ (810-11). The MoD has appealed the decision, but at the time of writing the Supreme Court was yet to schedule a hearing date.

The claimants had submitted that, in light of Article 3 ECHR, the MoD was obliged to conduct a new independent investigation, but the Court rejected the applicant’s request, arguing that such an investigation was not likely to bring about relevant new information.

Taking into account the nature of the abuses and the fact that these were not perpetrated by Danish forces, the Court found that the compensation should be set at 30,000 DKK (appr. 4,000 EUR) each for 18 of the 23 claimants (5 claimants were not awarded compensation).

Having set out key aspects of the judgment, we examine if the judgment is likely to have ramifications for how Denmark will approach joint military operations in Iraq and elsewhere in the future. We also highlight some parallels with civil proceedings in the UK arising from the Iraq War. Read the rest of this entry…

Print Friendly, PDF & Email
 

Holding States to Account for Gender-Based Violence: The Inter-American Court of Human Rights’ decisions in López Soto vs Venezuela and Women Victims of Sexual Torture in Atenco vs Mexico

Published on January 21, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

In two recent decisions, the Inter-American Court of Human Rights (IACtHR) has affirmed the existing binding obligations of States to address gender-based violence against women by State and non-State actors. The López Soto vs Venezuela decision (published in November 2018) is the IACtHR’s first ruling on State responsibility for acts of sexual torture and sexual slavery by a private actor and its first case for gender-based violence against Venezuela. The Women Victims of Sexual Torture in Atenco vs Mexico decision (published in December 2018) sets out the State obligations in cases of sexual torture by state security forces. Both rulings build on the IACtHR’s prior gender jurisprudence and set important new precedents by providing detailed content to the duties of due diligence and by explaining the circumstances in which States can be held liable for breaching them.

The López Soto vs Venezuela case examines the circumstances in which acts of gender-based violence by private actors can be attributed to the State. In 2001, a well-connected private individual kidnapped Linda Loaiza López Soto, then 18 years old, in Caracas, Venezuela, holding her hostage for over three months. During her captivity, she was brutally tortured, raped and humiliated. In her February 2018 testimony before the IACtHR, she provided a harrowing account of the sadistic abuse she endured, the multiple surgeries she underwent for her injuries following her rescue, and the lasting impact of these injuries. López Soto brought her case before the IACtHR after domestic authorities failed to duly investigate and prosecute the crimes, convicting her abductor of lesser charges.

The Court focused its analysis on two contentious issues: (1) whether the conduct of a private actor could be attributed to Venezuela; and (2) whether this conduct amounted to torture and sexual slavery under international law, as argued by the plaintiff. Read the rest of this entry…

Print Friendly, PDF & Email
 

Joint Blog Series on International Law and Armed Conflict: Better Safe Than Sorry: Transferring Detainees Safely to Coalition Partners

Published on January 19, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

The third post in our joint series hosted by the ICRC Humanitarian Law & Policy BlogEJIL Talk! and Lawfare, and arising out of the 6th Transatlantic Workshop on International Law and Armed Conflict, “Better Safe Than Sorry: Transferring Detainees Safely to Coalition Partners” by Tilman Rodenhäuser (ICRC) is available now over on Lawfare.

Here’s a taster of Tilman’s post:

Faithful application of the principle of non-refoulement can mean that it is not possible to lawfully transfer a person to another authority—for instance when the recipient authority is notorious for torturing or otherwise ill-treating detainees, or for executing them without fair trial. Practically, this means that the international forces are stuck with the detainee during extraterritorial operations. Short-term solutions in such situations include keeping a detainee in accordance with applicable procedural safeguards, finding an alternative authority to which transfers are lawful, or releasing the detainee. For longer-term solutions, states should work more systematically with partners to ensure humane treatment of detainees, including through assisting in developing necessary rules and procedures, training partner forces, or jointly managing certain detention facilities.

In light of the various legal and operational challenges that extraterritorial detention may entail, it could seem tempting to avoid taking prisoners at all, for instance by conducting “partnered operations” in which only local partners take detainees.

Read the rest of Tilman’s post over on Lawfare.

Other posts in the series:

Read the rest of this entry…

Print Friendly, PDF & Email
 

The UN Human Rights Committee Disagrees with the European Court of Human Rights Again: The Right to Manifest Religion by Wearing a Burqa

Published on January 3, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

It is perhaps unsurprising to observers of the UN Human Rights Committee’s (HRC) jurisprudence that in the recent decisions of Yaker v France and Hebbadi v France, the HRC came to the opposite conclusion to the European Court of Human Rights (ECtHR) regarding the compatibility of the so-called ‘French burqa ban’ with the right to manifest religion. In SAS v France, the ECtHR had found that although the French Loi no 2010–1192 interdisant la dissimulation du visage dans l’espace public of 11 October 2010, JO 12 October 2010 (herein after the ‘burqa ban’) interfered with the right to manifest religion, it did not constitute a violation of article 9 European Convention on Human Rights (ECHR) as it pursued the legitimate aim of ‘living together’ and fell within the State’s margin of appreciation (see my earlier post on this case). In contrast, in Yaker and Hebaddi, the HRC found that the same law violated not only article 18, the right to thought, conscience and religion, but also article 26 of the International Covenant on Civil and Political Rights (ICCPR), the right to equality before the law.

The HRC’s freedom of religion or belief jurisprudence has consistently diverged from that of the ECtHR when the right to manifest religion by wearing religious clothing is at issue. Both bodies have heard directly analogous cases, but while the HRC has found that restrictions on religious clothing justified by reference to either secularism or public order violate article 18 ICCPR, the ECtHR has deferred to the State’s margin of appreciation and declined to find a violation (see my earlier post on this blog). As a result, the HRC’s decisions in Yaker and Hebbadi were not entirely unexpected, especially as in its Concluding Observations on the fifth periodic report of France in 2015, the HRC had expressed ‘the view that these laws [including the burqa ban] infringe the freedom to express one’s religion or belief and that they have a disproportionate impact on members of specific religions and on girls’ (para 22). However, its decision in these cases remains noteworthy as a result of: its consideration of ‘living together’ as a legitimate aim under the article 18(3) ICCPR limitations clause; the HRC’s recognition that the burqa ban constituted intersectional discrimination; and the nuanced approach adopted to the gender equality argument. The analysis here will focus on Yaker, although the HRC’s reasoning in both cases is identical. Read the rest of this entry…

Print Friendly, PDF & Email
 

A Quick Holiday Update on Ukraine/Russia Litigation before the ECtHR

Published on December 24, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Last week the European Court of Human Rights published a press release which is worth flagging for readers, with an update on litigation concerning various aspects of the conflict in Ukraine pending before it. As things stand, there are more than 4000 individual cases before the Court with a nexus to the conflict, whether in Eastern Ukraine or Crimea. There are currently five pending interstate cases between Ukraine and Russia, the latest one filed in November, concerning the Kerch Strait incident (see this prior post by James Kraska) and in which the Court has indicted interim measures. The Court has now decided to adjourn many of the individual cases, pending its decision in the interstate cases on the applicability of the Convention, specifically with regard to the Article 1 ECHR jurisdiction of both Ukraine and Russia; for a discussion of this issue, see my recent ICLQ article with Tatjana Papic on the applicability of the ECHR in contested territories.

The full press release is reproduced below.

Read the rest of this entry…

Print Friendly, PDF & Email
 

In the name of the European Club of Liberal Democracies: How to Evaluate the Strasbourg Jurisprudence

Published on December 20, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

How should the European Court of Human Rights be reformed? Para. 41 of the Copenhagen Declaration of April 2018 seeks to scrutinise, for this purpose, recent developments in its jurisprudence, to decide, before the end of 2019, on further reform (para. 5 Copenhagen Declaration). What is a meaningful idea for such scrutiny? This post provides a legal reconstruction of the Court with respect to who it represents and in whose name it decides, that is in the name of the European club of liberal democracies. From here on, it flags the identity crisis of the club as the Court’s most important challenge. It also shows the procedural margin of appreciation doctrine as a possible path to the Court’s future, with a reformed role that focuses on the essentials of the club.

The focus “in whose name?”

An evaluation of the Court’s jurisprudence needs an idea of its democratic legitimacy, not least because it often confronts elected governments. The question, ‘in whose name’ the Strasbourg Court is deciding, evokes such an idea. Indeed, many national courts state right at the outset that they decide In the name of the people or the republic, whatever is conceived as the ultimate source of their legitimacy. Accordingly, most evaluations of domestic courts start from this premise.

In the judgements of the ECtHR, as those of any international court, nothing of that kind is written. So the question is what could feature in there as a short formula which provides a similar idea? One might consider referring to the Convention. It would then read In the name of the European Convention on Human Rights, as if a domestic court would start with In the name of the law. Yet, this is a step too short: the legitimacy does not stem from the law itself, but from its approval by parliament. Accordingly, the basis of the Court’s democratic legitimacy stems from the national ratifications of the Convention.

Hence, in a normal international controversy between two states, one could consider a court to decide In the name of the high contracting parties litigating before the court. But this makes little sense for the Strasbourg court: most controversies at the ECtHR are between a state and a national of that state. A different formula is needed. Read the rest of this entry…

Print Friendly, PDF & Email
 

Are “Transparency” Procedures and Local Community “Consultations” Enough? A Human Rights “Feedback Loop” to International Economic Law Reforms of 2018

Published on December 12, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

It is nearly the end of 2018, and so many “reform” efforts are underway throughout all realms of international economic law that one is inclined to think all our good intentions must lead somewhere, eventually.  There is an UNCITRAL Working Group for Reforming Investor-State Dispute Settlement (ISDS) that involves Member States, and to a different degree, academic inputs through the Academic Forum (see the blog’s series of posts on these authored by Anthea Roberts, found here, here, here, here, and here).  New trade agreements have been announced, such as the NAFTA renamed 2.0 version United States-Mexico-Canada Agreement (USMCA, recently discussed here by the Max Planck Institute’s Pedro Villareal and Franz Ebert), a renegotiated Korea-US trade agreement (details here), or the forthcoming entry into force of the US-less 11-nation bloc of the Comprehensive and Progressive Trans Pacific Partnership (CPTPP) on 30 December 2018 (see details here).  With the United States having changed its defense and leadership of the WTO and the multilateral trading system towards a policy of not shirking from initiating open bilateral trade wars to force renegotiations – such as the temporary trade truce with China (contents here) and tariffs slapped on the EU, Canada, and other allies (see Joseph Weiler’s ever prescient portents about the precarious US position here, and further discussions here, here, and here), it is not at all surprising that other States this year have been strategically realigning their economic partnerships, whether it be through deepening EU-Africa trade partnerships; Japan recently concluding a new trade pact with the EU; or more countries moving out of the Western orbit of economic influence towards China’s own expansive march with debt-financed investment projects in the Belt and Road Initiative; or China and/or India leading the state of negotiations at the pending 16-member mega-regional agreement, the Regional Comprehensive Economic Partnership (RCEP), allegedly set to be finalized by early 2019.  All these, apart from the uncertainties of securing any prospective UK-EU treaty, which, as of this writing is still up in the air after British PM Theresa May pulled back from forcing a catastrophic vote at the House of Commons (noting, of course, that the European Court of Justice issued a landmark ruling on 10 December 2018 declaring that the UK can voluntarily revoke Brexit).

Political expediencies and treaty negotiation pragmatisms aside, we have to wonder whether the “efficiency” of these developments will indeed result in “efficacy” or “effectiveness”, and for which constituencies of the international economic system.  Despite the multitude of public policy-driven reform efforts (such as expanding amicus participation, transparency guarantees, as well as public consultations in ISDS, setting out more detailed environmental and labor chapters in trade agreements, or announcing more infrastructure financing avenues for developing countries in new institutions and initiatives), what I have not seen in a year of attempted reforms is any deliberate shift towards broadening global economic governance beyond the usual voices at the negotiating table.  The same political, economic, intellectual, or social elites are crafting the new rules and institutions in the international economic system, with the contours of any local community consultations actually left to be operationalized according to the political auspices and national mechanisms of individual States.  To a great extent, this is understandable, since a relentless cacophony of voices might be anathema to achieving any final treaty text or clear institutional decision (e.g. the Aristotelian version of the tyranny of an extreme democracy).  But to a large extent, this “business as usual” approach remains just as discomfiting as the many paeans regularly being made these days (see here, here, here, for example), towards building in some kind of consultations process for local communities that are somehow intended to depict a “more inclusive” international economic system.  Is it enough that local communities are “being heard” by their respective States, or should the new rules and reforming institutions of the international economic system also start making sure that States are indeed listening?  

Once communities have been “consulted”, one way or another, where is the (hopefully objective and largely depoliticized) “feedback loop” that enables local communities to actually see what the State’s ultimate decision-making process has been with respect to reforming international economic treaties, decisions, and institutions?  That process remains shrouded in mystery – owing to the usual fictions of States claiming to need opacity during hard treaty bargaining.  I make the (rather obvious, but surprisingly still ignored) argument, in this post, that States’ human rights obligations to their populations make it imperative to build in a genuine “feedback loop” for any consultations or transparency procedure that may be contemplated in the continuing reform of international economic law.  A feedback loop is a necessary control mechanism in the communication process that enables communicants to verify whether their respective inputs or views have been used, recycled, revised, or discarded by the decision-maker.  To the best of my knowledge, this still doesn’t exist in the architecture of international economic law and its limited spaces for public participation.  There is “consultation” but no meaningful opportunities for communities’ real-time verification of what their States have promised, traded, conceded, or otherwise bargained at the negotiating table.

It is not enough that local communities just be “heard”, but we should all be properly informed of how community views translate (or not) into the State’s international economic decision, so as to ensure that communities can strategically and effectively participate as fellow constituents of the international economic system.  This is all the more urgent as States persist in these reforms through to the new year, when communities are, in the first place, at the frontlines of the international economic system’s felt impacts on environment, health, economic, social, cultural, civil, and political rights.  If there is any constituency that deserves the information on how States have been making all of these reform decisions, it is our communities who have to live through the consequences of these decisions, years after all the politicians and negotiators have come and gone.  With better information as to States’ actual international economic decisions coming from an actual “feedback loop”, communities are better empowered to choose (or reject) leaders who make these lasting decisions.  The “feedback loop” is thus central to a genuine right to self-determination, in its economic and political dimensions.

Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on Are “Transparency” Procedures and Local Community “Consultations” Enough? A Human Rights “Feedback Loop” to International Economic Law Reforms of 2018