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Some Thoughts on the Jadhav Case: Jurisdiction, Merits, and the Effect of a Presidential Communication

Published on May 12, 2017        Author: 

On 8 May, India instituted proceedings at the International Court of Justice against Pakistan relating to the latter’s imprisonment and award of death penalty to Kulbhushan Jadhav, an Indian national. Pakistan claims it arrested Mr Jadhav on 3 March 2016, in Balochistan (a Pakistani province), where he was engaged in espionage and sabotage activities. A military court sentenced him to death on 10 April 2017. India alleges that Mr Jadhav was abducted from Iran, where he was engaged in business following retirement from the Indian Navy. India further claims that following his arrest and throughout his trial, sentencing and now imprisonment pending execution of sentence, it has not been allowed consular access to Mr Jadhav.

India’s application asks the Court to declare that the sentence imposed by Pakistan is ‘in brazen defiance’ of Article 36 of the Vienna Convention on Consular Relations (VCCR), and of the ‘elementary human rights of the accused’ (para. 60). It asks the Court to direct Pakistan to annul the decision; or, if, Pakistan is unable to do so, to declare the decision illegal, and direct Pakistan to release Mr Jadhav immediately (Id.). India has also requested that the Court indicate provisional measures preventing Pakistan from executing him pending resolution of the dispute.

Oral hearings on provisional measures are listed to begin on 15 May. Meanwhile, President Abraham has issued an urgent communication to Pakistan, pursuant to his powers under Article 74(4) of the 1978 Rules of the Court. This provides:

Pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects.

In this post, we offer a brief account of several issues. We first note a few points in relation to India’s claims as to the Court’s jurisdiction and the merits of the claim proper. We then discuss the scope and effects of the President’s Article 74(4) communication. Our attention was caught by the fact that this communication was reported in the Indian media as a ‘stay’ on Mr Jadhav’s execution, with India’s Foreign Minister even tweeting that she had told Mr Jadhav’s mother ‘about the order of President, ICJ […]’. This squarely raises the question: can the Article 74(4) communication be read as a mandatory ‘order’ in the same way as provisional measures ordered under Article 41 of the Court’s Statute? And, if not, could a state in any way be found legally accountable in for its breach? Read the rest of this entry…

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Turkey’s Derogation from Human Rights Treaties – An Update

Published on August 18, 2016        Author: 

In an earlier post of 27 July I provided a first assessment of Turkey’s declared derogation from the European Convention on Human Rights (ECHR) and an assessment what kind of measures could be expected, as derogations both from the ECHR and the International Covenant on Civil and Political Rights (ICCPR). This new post provides an update, partly in response to commentators.

On 11 August, the United Nations published Turkey’s notification notification of derogations from the ICCPR. According to its text, the actual measure was ‘effected’ more than a week earlier, on 2 August. Turkey’s notification, dated on 21 July, refers to the 90-day state of emergency that had been declared on 20 July under domestic law. The most interesting element in Turkey’s ICCPR notification is that it provides a list of articles from which Turkey ‘may’ derogate:

The decision was published in the Official Gazette and approved by the Turkish Grand National Assembly on 21 July 2016. In this process, measures taken may involve derogation from obligations under the International Covenant on Civil and Political Rights regarding Articles 2/3, 9, 10, 12, 13, 14, 17, 19, 21, 22, 25, 26 and 27, as permissible in Article 4 of the said Covenant.

Again Turkey follows the recent example of France in specifying the articles under the ICCPR but not under the ECHR, and by not being explicit what the actual derogations are, instead only stating that derogations from the ICCPR ‘may’ result from measures taken pursuant to the state of emergency.

Read the rest of this entry…

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Turkey’s Derogation from the ECHR – What to Expect?

Published on July 27, 2016        Author: 

In the aftermath of the failed 15 July coup, Turkey’s government declared a state of emergency and subsequently on 21 July notified the Council of Europe that it “may” derogate from the European Convention on Human Rights (ECHR).  So far there is no information of a possible notification to the United Nations concerning derogations from the International Covenant on Civil and Political Rights (ICCPR).

Turkey’s ECHR formal notification was preceded by widely reported expectations, fuelled also by a Council of Europe press release, that it was going to “suspend” the ECHR (presumably as a whole) and, interestingly, followed by a 25 July communication to the Council of Europe (see below) that appears to downplay the severity of the derogations.

Derogations from some but not all human rights are permissible under ECHR Article 15 and, similarly, under ICCPR Article 4 when a state is faced with a public emergency that threatens the life of the nation and officially proclaims a state of emergency. A failed military coup would prima facie qualify as serious enough a situation that can be addressed through declaring a state of emergency in the process of restoring normalcy.

Basing myself on the assumption that Turkey’s decision to derogate from some of the ECHR rights as such is to be assessed as permissible, I will below address the constraints that a country is facing under human rights law when lawfully derogating. Read the rest of this entry…

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Beyond the Mantra, Towards the Granular: The Special Rapporteur on Freedom of Expression’s Report on the Private Sector in the Digital Age

Published on July 5, 2016        Author: 

I. Introduction

“To what extent should the private sector be responsible for the promotion and protection of freedom of opinion and expression?” This is the question at the heart of the latest report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Professor David Kaye (“Special Rapporteur”), which he presented at the 32nd session of the Human Rights Council, which ended last week. The current report does not purport to offer comprehensive answers, but instead maps out the myriad of ways in which the private sector impacts upon freedom of expression in the digital age, the “regulatory ecosystem on the Internet”, and the legal and policy issues that deserve particular attention. Surprisingly, UN human rights bodies only began really grappling with the challenges of the Internet five years ago. In this period, there have been reports of the Special Rapporteur and his predecessor on encryption and anonymity tools, mass surveillance, and the Internet as well as a series of Human Rights Council and General Assembly resolutions on human rights on the Internet and the right to privacy in the digital age. Such texts have made the statement that “the same rights that people have offline must also be protected online, in particular freedom of expression” into a mantra. Against this backdrop, the current report is pioneering for several reasons.

II. Breaking new ground

First and foremost, the report is comprehensive in its mapping of the digital environment and related freedom of expression challenges. As the delegation of the Netherlands recognised, it is the “first full overview of all private actors in ICT whose actions impact freedom of expression and opinion”. The report disaggregates the “vast” and “overlapping” range of roles played by private sector actors in “organising, accessing, populating and regulating the Internet” and distinguishes certain pressing legal and policy issues, concerning content regulation, surveillance and digital security, transparency and remedies. In doing so, it identifies the array of private actors including telecommunications and Internet service providers, web hosting services, hardware firms, search engines and social media platforms, media companies, companies producing surveillance technologies and multi-stakeholder processes. It also, importantly, draws on examples from many countries around the world, including Sweden, Russia, Uruguay, Brazil, China, India, South Africa, Tanzania, the UK and the US.   Read the rest of this entry…

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UN Human Rights Committee Finds that Ireland’s Abortion Ban Violates the ICCPR

Published on June 13, 2016        Author: 

Last week the UN Human Rights Committee delivered an important decision in Mellet v. Ireland, finding that, as applied to the claimant, the Irish ban on abortion violated several articles of the ICCPR. This was because the ban extended even to pregnancies, like the claimant’s, where the foetus was diagnosed with a fatal abnormality, so that it would either die in utero or shortly after delivery. The claimant was thus forced by Irish law to choose between carrying the baby to term, knowing that it would inevitably die in her womb or immediately after birth, or having to travel to the UK to get an abortion. The claimant chose the latter option, at great personal expense and with a lot of pain and indignity along the way, including having the ashes of her baby unexpectedly delivered to her by courier a few weeks after the abortion.

The Committee was unanimous on the bottom line of the case, which is that the abortion ban, as applied to the claimant, constituted cruel, inhuman or degrading treatment in violation of Article 7 of the Covenant, as well as a violation of her right to privacy under Article 17 of the Covenant. While the reasoning of the Committee is at times laconic (as is unfortunately the norm with its views), the basic idea behind the decision was essentially that even if the claimant’s rights were subject to an implicit or explicit balancing exercise, in light of the fact that her unborn child would inevitably die there was nothing to balance with the intrusions into her own interests. In other words, Irish law forced her to endure significant suffering for no real purpose, since the unborn child would die anyway.

The Committee’s views in this case are thus confined to its specific circumstances; it has not created a right to abortion on demand or asked Ireland to liberalize access to abortion fully, but to (at the very least) create an exception to its ban that would accommodate women in the claimant’s situation. The main problem here is that the Irish abortion ban stems from a constitutional provision, which was interpreted by the Irish Supreme Court as only allowing for an exception if there is real risk to the life, but not to the health, of the mother. Ireland can thus comply with the Committee’s recommendation only if the Supreme Court revisits the issue and carves out another exception, or if the Constitution itself is amended, which requires a popular referendum. In other words, this is one of those rare cases where domestic constitutional provisions as authoritatively interpreted by domestic courts are themselves violative of international human rights law; this does not change anything as a matter of international law, but clearly it creates specific political challenges for compliance (cf. the Sejdic and Finci judgment of the Strasbourg Court). See more on this point in this post by Fiona de Londras on the Human Rights in Ireland blog; this post by Mairead Enright has more analysis of the Committee’s decision.

Read the rest of this entry…

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Julian Assange and the UN Working Group on Arbitrary Detention

Published on February 5, 2016        Author: 

We should have known. Once Julian Assange publically stated that he would surrender to the UK authorities if the United Nations Working Group on Arbitrary Detention found against him, it was obvious that the Working Group had done no such thing. And its opinion was released today, to widespread derision among the legal community (at least as expressed by my twitter feed).

To get the obvious issues out of the way: the Working Group is a UN body but it is not, and does not represent, ‘the United Nations’. Instead, it is one of the ‘thematic special procedures’ of the UN Human Rights Council, which is itself a political body established by and reporting to the UN General Assembly. The Working Group was originally established by the Commission on Human Rights, the Human Rights Council’s predecessor, and had its mandate renewed, most recently by the Human Rights Council in 2013. In contrast to the HRC, however, the Working Group is a body of independent experts serving in their individual capacities. It presently has five members: from South Korea, Mexico, Benin, Australia and the Ukraine.

The Working Group is tasked with investigating cases of deprivation of liberty imposed arbitrarily, with reference to the relevant international standards set forth in the Universal Declaration of Human Rights, as well as to the relevant international instruments accepted by the States concerned. It can consider individual communications and, having done so, render opinions as to whether an arbitrary detention has or has not been established and make recommendations to the State concerned.

What all this means is that the Working Group cannot issue binding decisions (contrary to what Julian Assange’s legal team are arguing), hence their description as ‘opinions’. Nor can it provide authoritative interpretations of any human rights treaty (having not been granted that role by the parties to any such treaty). The most that can be said is that States are under a duty to take ‘due consideration’ to Working Group’s recommendations, which is a rather weak obligation.

Moving from the general to the particular, the Working Group gave its opinion in response to a communication made on behalf of Julian Assange. It will be recalled that Mr Assange has been in the Ecuadorian embassy in London since 19 June 2012, when he skipped bail following the decision of the UK Supreme Court on 30 May 2012 to permit his extradition to Sweden under a European Arrest Warrant. The communication was made on 16 September 2014 and was passed on to the Governments of Sweden and the United Kingdom, which replied, respectively, on 3 and 13 November 2014. The opinion was adopted on 4 December 2015, over a year later, and was published on 5 February 2016, which does not indicate an enormous sense of urgency. Following the Working Group’s rules, one of the members of the Working Group recused herself from this deliberations as she shared the same nationality as Mr Assange. Another, Mr Vladimir Tochilovsky, dissented and produced a short individual dissenting opinion. Read the rest of this entry…

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The Growing Importance of Data Protection in Public International Law

Globalization and borderless electronic communication has brought huge benefits to individuals. At the same time, the increased exploitation of personal data by the private sector and reported intelligence gathering of personal data via the Internet have caused widespread international concern. The recent appointment by the UN Human Rights Council of a Special Rapporteur on the right to privacy in the summer of 2015, and the adoption on 18 December 2013 by the UN General Assembly of a resolution on “the right to privacy in the digital age”, demonstrate the growing international interest in data protection rights.

There is a growing need for legal rules protecting the processing of personally-identifiable data, known as data protection, to be anchored more firmly in public international law. The increasing number of regulatory conflicts caused by differing national and regional conceptions of data protection, as illustrated by the judgment of 6 October 2015 of the Court of Justice of the European Union in Maximillian Schrems, should be a wake-up call to the international community in this regard.

Indeed, data protection at the international level remains fragmented and weak, creating risks for individuals and problems for international organizations (such as UN entities and international humanitarian organizations), many of which process large amounts of personal data. Read the rest of this entry…

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Ukraine Derogates from the ICCPR and the ECHR, Files Fourth Interstate Application against Russia

Published on October 5, 2015        Author: 

I’ve somehow managed to miss this – and I don’t think it has been widely reported – but in June this year Ukraine formally derogated from the International Covenant on Civil and Political Rights and the European Convention on Human Rights. In late August it also filed a new interstate application before the European Court of Human Rights against Russia, and this is the really big one, dealing with events in Crimea and Eastern Ukraine after September 2014. A couple of days ago it was communicated by the Court to Russia for a response, as detailed in the Court’s press release. The press release also explains the current state of Ukraine/Russia related litigation; while one of the four interstate cases was discontinued, the three remaining cases come coupled with some 1,400 individual cases on various issues, against Russia, Ukraine, or both. Obviously this whole set of cases – together with those dealing with the downing of MH17, and future Ukraine/Russia cases to come – presents one of the most significant challenges that the Court has ever had to face on how the Convention should apply in armed conflict.

The press release also refers to Ukraine’s derogation from the ICCPR and the ECHR. The text of the detailed notice of derogation can be found here and here. In particular, Ukraine derogated (or at least attempted to derogate) from Articles 5, 6, 8 and 13 of the Convention, and the corresponding articles in the ICCPR. Much of the derogation notice, and the relevant Ukrainian legislation it refers to, deals with detention issues and other restrictions on personal liberty, such as the institution of curfews, as well as changes to judicial and prosecutorial procedures. The most important derogation seems to be the extension of detention without judicial authorization from 72 hours to 30 days, subject to decision of a prosecutor.

Two things struck me as particularly interesting – and particularly unhelpful – after reading the derogation notice.

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The Human Rights Committee and its Role in Interpreting the International Covenant on Civil and Political Rights vis-à-vis States Parties

Published on August 28, 2015        Author: 

The role of the UN Human Rights Committee (HRC) in the interpretation of the provisions of the International Covenant on Civil and Political Rights (the Covenant) has recently been questioned in a post by Dr. Harrington.

Dr. Harrington recognises that the HRC has an important role in the interpretation of the Covenant, however the last word on interpretation would go to States parties. The HRC should “monitor, question and guide”, but it would be States who decide whether the observations and recommendations issued by the HRC are to be supported and implemented. This would allegedly depend on “the specificity and the context” of the recommendations and “the expertise and stature of the Committee members”. This view of the role of the HRC is not unanimously shared, as is clear from some of the comments on the post that refer to authoritative sources that qualify the HRC as the “pre-eminent interpreter of the Covenant”.

It is here argued that the main question is who can say the best, rather than the last, word on the interpretation of the Covenant. In this regard, the HRC has an interpretative authority that prevails over that of States parties, especially when it comes to examining periodic reports and formulating concluding observations. In fact, the HRC, far more than the individual States parties, has the experience in applying the Covenant that is relevant for its interpretation. Read the rest of this entry…

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The Human Rights Committee, Treaty Interpretation, and the Last Word

Published on August 5, 2015        Author: 

July 24 marked the end of the most recent session of the Human Rights Committee, a part-time body operating under the International Covenant on Civil and Political Rights, 999 UNTS 171. At its most recent session – its 114th – the Committee adopted “Concluding Observations” concerning seven States as part of the state-reporting process. It also adopted “Views” with respect to 32 individual petitions lodged against States under the Covenant’s Optional Protocol, 999 UNTS 302, finding violations in 17 cases, as reported in the UN press release issued to mark the session’s closing. The Committee also held a half-day discussion in preparation for a new “General Comment” on the right to life, possibly for release at the end of 2016, and an informal meeting with States parties, of which there are now 168, confirming the Covenant’s status as a leading human rights treaty.

As usual, the Human Rights Committee also engaged in dialogue with both national and international human rights NGOs, many of whom brought forward issues and perspectives of use to the Committee’s understanding of State reports. The Committee also heard from national human rights institutions (NHRIs). But organizations and institutions have goals and mandates, just as those who represent States operate under instructions, and one can understand that those with a goal to achieve in their efforts to influence the content forthcoming from a treaty-monitoring body may not wish to provide a critique of the treaty body itself, at least not while the Committee is meeting. But critiques have value for the overall system for the protection and promotion of human rights, with a treaty body’s sense of its role in the field having potential implications for continuing State support.

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