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Home Archive for category "International Organisations"

Reflections on the European Committee on the Prevention of Torture’s Report on the UK

Published on April 21, 2017        Author: 

The European Committee on the Prevention of Torture (CPT), the Council of Europe monitoring body responsible for visiting places of detention in member states, recently published its report on its visit to the UK in 2016. The report was published at the request of the UK and a response is expected shortly.

The report is important in three respects. First, the report is striking in the number of concerns it raises about ill-treatment in places of detention in the UK, including inter-prisoner violence, a lack of safety in prisons, use of restraint and separation in psychiatric hospitals, solitary confinement of children and indefinite lengths of immigration detention. Second, the nature of the concerns raised in the report prompts questions on whether measures to eradicate ill-treatment are sufficient or whether in some instances the use and legitimacy of detention itself needs to be considered. Third, the report is part of a wider context of national reviews and reform and recent and forthcoming recommendations by the UN on the use, legitimacy and treatment in detention in the UK. This level of attention to detention in the UK raises interesting questions for scholars and practitioners on implementation and compliance with international human rights law and the conditions necessary to bring about change. Read the rest of this entry…

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Taking the ‘Union’ out of ‘EU’: The EU-Turkey Statement on the Syrian Refugee Crisis as an Agreement Between States under International Law

Published on April 20, 2017        Author: 

Almost one year after its conclusion, the Court of Justice of the European Union (CJEU) has eventually made clear the real nature of the ‘so-called’ EU-Turkey Statement. The ‘Statement’ is a document that was primarily aimed at preventing irregular migrants reaching the EU from Turkey, and established a resettlement mechanism based on the transfer of one vulnerable Syrian from Turkey to the EU “for every irregular Syrian being returned to Turkey from Greek islands”. The case was brought by three asylum seekers who arrived in Greece by boat and risked being returned to Turkey pursuant to this Statement if their request for asylum was rejected. They asked the Court to annul what they identified as an “agreement concluded between the European Council and the Republic of Turkey” (see CJEU, Orders of 28 February 2017, Cases NF v European Council, T‑192/16; NG v European Council, T-193/16; NM v European Council, T-257/16).

According to the CJEU, the ‘EU-Turkey’ Statement is a non-EU agreement. In fact, it is a European agreement between EU Member States and Turkey, which was made at the margin of the European Council’s meeting held in March 2016. As such, according to Article 263 of the Treaty on the Functioning of the European Union (TFEU), the CJEU lacks jurisdiction to review its legitimacy, especially in relation to the provisions set out for the conclusion of international treaties by the EU (similarly, CJEU, 30 June 1993, Parliament v Council and Commission, C-181/91 and C-248/91.).

This expected (?) conclusion (see S. Peers here) raises more questions than it answers. After a brief analysis of the CJEU’s order at least two points deserve attention. Firstly, were all aspects of the Statement duly considered in order to exclude the possibility that this is an agreement of the EU with a third country? Secondly, in light of customary international law of treaties, is a different reading of  the EU’s involvement possible? Read the rest of this entry…

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United States’ Missile Strikes in Syria: Should International Law Permit Unilateral Force to Protect Human Rights?

Published on April 18, 2017        Author: 

A bounty of recent blog posts have poured over the legality of the Trump administration’s missile strikes against a Syrian airbase in response to President Bashar al-Assad’s use of chemical weapons (see, e.g, here, here, here, here and here). Possible justifications have recently come to light, but do not provide a sufficient basis for the administration’s actions under international law (which is the focus of this post). Most commentators conclude that, absent UN Security Council authorisation or a justifiable claim of self-defence, international law provides no clear right for states to use force in response to such grave violations of human rights. Therefore, the strikes most likely contravene Article 2(4) UN Charter. With that analysis, I agree. The question that then arises, and which has received much less attention (although, see here and here), is the normative question: should international law permit such unilateral action (either individually or collectively) outside of the UN Charter framework?

The understandable response is that ‘something’ must be done and at least President Trump has acted where the international community has previously failed to do so. This sentiment is reflected in the opinions of a number of world leaders who appear to be supportive of the strikes against the Assad regime. Yet, notably, where countries have expressed support for the United States’ actions, they have not presented a legal justification for it. Regardless of whether we agree that the missile strikes are the right thing to do in response to a criminal regime gassing its own people (and there are serious doubts as to whether these strikes are an adequate or effective response), how should international law respond to such horrors as a general matter? What is the legal framework on which states can rely to do what they think is right? Read the rest of this entry…

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Testing Jackson’s Discussion of State Responsibility in the Context of Government Assistance. Book Discussion

Published on April 13, 2017        Author: 

This post is part of our book discussion on Miles Jackson’s “Complicity in International Law“.

Criticisms of western governments for aiding and assisting other states to act in breach of international law are now common. While such criticisms may sometimes be as much to do with the policy of the thing, there is also increasing focus on the law. The ongoing judicial review in the English courts regarding the provision of arms and military equipment to Saudi Arabia in the context of the conflict in the Yemen (The Queen on the application of Campaign against the Arms Trade v. The Secretary of State for International Trade) illustrates the possibility of litigation on the issue in domestic courts. Miles Jackson’s book on ‘complicity’ gives an introduction and a foundation for thinking about this highly topical subject, in the context both of international criminal law and of state responsibility, and adds to the growing literature. This brief note considers, in the context of state responsibility, whether the book is also of use to the practitioner – whether government adviser, non-governmental organisation, or advocate – who has to apply the law before or after the event.

Jackson’s discussion of state responsibility can be tested in the context of three examples of government assistance; the choice of examples here is unashamedly UK-centric, but instances can be found in many other countries. The first is the provision to other governments of arms and other materiél in a conflict to which the assisting government is not a party and where the assisted government is alleged to be in breach of international humanitarian law in the conduct of the conflict. The second example stems from allowing other governments the use of airfields and military bases on the assisting government’s territory. Here there may be allegations of breaches of ius ad bellum by an assisted state which uses a loaned base to launch an armed conflict, or of human rights abuses such as unlawful rendition of individuals from the base. The third example is the provision of financial and practical aid to improve another state’s justice or human rights sectors. In such a case the relevant sectors of the assisted government are unlikely to have a good record: is it lawful to assist them to improve, or will the aid make the assisting state complicit? Read the rest of this entry…

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Illegal But Legitimate?

Published on April 10, 2017        Author: 

I have always thought that proponents of humanitarian intervention simply cannot make a persuasive case that it is already an existing rule of international law (even if they can make a case that it should be a rule of international law). I have similarly always thought, on the other hand, that the position that an intervention is legally prohibited but that it can nonetheless be politically legitimate or morally justified in exceptional circumstances is conceptually perfectly coherent. (Maybe – well, certainly – my views on this are coloured by my shamelessly comprehensive adoration of Bruno Simma, but there you go.) If we are operating in a positivist framework, even the mildest forms of positivism by definition mean that something that is lawful is not necessarily just. And since we are endowed with free will, we can choose to break the law for higher-order considerations, morality and justice, if we are willing to pay the price of non-compliance.

Whenever people talk about an act being illegal but legitimate I also always remember this scene from Richard Attenborough’s film Gandhi – in the scene Gandhi is tried, in 1922, for fostering disaffection against the British government of India, thereby causing several major outbreaks of violence. And here is what happens:

Read the rest of this entry…

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The Consequence of the UN Resolution on Israeli Settlements for the EU:  Stop Trade with Settlements

Published on April 4, 2017        Author: 

The recent UN Security Council Resolution 2334 (2016) reaffirmed that the establishment of Israeli settlements in the occupied Palestinian territory has no legal validity and that Israel’s settlement enterprise is a flagrant violation of international law. The resolution also calls upon all States “to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”. This part of the resolution is of great significance with regard to the question of trading with settlements.

While the content of the resolution might seem novel, Secretary of State John Kerry was right to remind us in his landmark speech on the Israeli-Palestinian conflict at the end of 2016 that:

this resolution simply reaffirms statements made by the Security Council on the legality of settlements over several decades. It does not break new ground”. In 1980 UN Security Council Resolution 465 had called upon all States “not to provide Israel with any assistance to be used specifically in connection with settlements in occupied territories.

Trading with settlements offers an economic lifeline that allows the settlement enterprise to survive and develop. This reality and the aforementioned UN Security Council Resolutions make a good case not to trade with settlements. But is the withholding of such settlement trade truly an obligation under international law?

In an earlier piece I argued that there is indeed such an obligation, and the lack of state compliance does not seriously shake the legal foundations of this argument. Just last year in an open letter, 40 legal experts (myself included) called upon the European Parliament, and the office of the High Representative and the Trade Commissioner to stop trade with settlements in compliance with the EU’s international legal obligations. Signatories included two former UN rapporteurs, a former President of the International Law Commission, a former judge on the ICTY, and dozens of professors in international law.

Our main argument was that the EU has the obligation to end trade with Israeli settlements based on the duties of non-recognition and non-assistance. This post will describe the legal argumentation underlying these duties. Read the rest of this entry…

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The Right to Religious Freedom and the Threat to the Established Order as a Restriction Ground: Some Thoughts on Account of the Achbita Case

Published on March 23, 2017        Author: 

On March 15, 2016, the European Court of Justice (ECJ) heard two different cases, the case of Achbita and that of Bougnaoui. As noted here, while both cases had the wearing of the Islamic headscarf at work as a common factual background, the legal questions asked were different. The Achbita case, referred to the ECJ by the Belgian Cour de Cassation, concerned Achbita’s dismissal from work as a receptionist. The dismissal took place after she refused to comply with a prohibition to wear the Islamic headscarf when dealing with customers. The Bougnaoui case, referred by the French Cour de Cassation, focused on a similar dismissal after she refused to abide by her boss’ demands and take off her Islamic headscarf, following the relevant wishes expressed by one of the enterprise’s clients. Nevertheless, the two courts brought different questions before the ECJ for a preliminary ruling. The Belgian supreme administrative court asked the ECJ whether such a ban from wearing the headscarf at work constituted direct discrimination. Its French counterpart focused on the client and whether his will not to have services provided by an employee wearing a visible religious symbol or attire contravened EU law.

On Mach 14, 2017, almost a year after the hearing of the cases, the ECJ issued its judgments (here and here). In the case of Achbita, the ECJ ruled that employers, coming to pursue a policy of political, philosophical and religious neutrality, have the right to prohibit their workers from adhering to a specific religious dress code or from wearing at work visible religious symbols. On the contrary, in the Bougnaoui case, the court’s holding was that employers cannot discriminate between employees who wear religious symbols and those who do not, due to a customer’s demand. Accordingly, while the Bougnaoui judgment closes the door to any potential restricton of religious expression at work, this is not the case with the Achbita one. The latter can be seen as introducing a possible infringement on religious freedom even if the Court ruled that employers have the option and not the obligation to impose such a ban on visible religious symbols. Through the granting of such an option, the ECJ sends the message that an individual cannot cite religious beliefs in order not to comply with generally set applicable norms.

This has been palpably demonstrated in domestic jurisprudence on both sides of the Atlantic. For example, in the Employment Division v. Smith, the U.S. Supreme Court held that two Native Americans had been justifiably dismissed from their work after the ingestion of peyote, a powerful entheogen. The fact that their religious beliefs sanctioned such an ingestion was not a valid ground for them to contravene the laws of the State of Oregon which prohibited possession and use of the particular substance. Similarly, in the case of Bull v. Hall, the UK Supreme Court held that the religious beliefs of a hotel keeper could not justify discrimination against same-sex couples and justify a policy according to which the hotel suites destined for married couples would be given only to heterosexuals. Read the rest of this entry…

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The Constitutional Frontiers of International Economic Law

Published on March 9, 2017        Author: 

The End of Mega-Regionalism?

The future of ‘mega-regionals’, like the Trans-Pacific Partnership (TPP) or the Transatlantic Trade and Investment Partnership (TTIP), has become doubtful since President Trump took office. Through decisions, such as the withdrawal from TPP, he is putting his rhetoric to ‘Make America Great Again’ in action. Yet, the idea to put national values first is not, I argue in a recent issue of the Journal of World Investment and Trade, so different from opposition to mega-regionals elsewhere. Both the ‘new America’ and opponents to mega-regionals in Europe speak in favor of disengaging from mega-regionals and replacing them with action by the nation state. At the same time, rejecting mega-regionals will result in sticking with the existing international institutional infrastructure that is widely regarded as insufficient to effectively regulate globalization for the better.

Despite similarities in their effects, there are important differences across the Atlantic. In the European Union, opposition most vocally comes from the left, not from the right. It also does not come from an elected executive, but from large numbers of citizens and opposition parties, as well as a smaller number of Member States, or even sub-divisions of Member States – think of Wallonia. And it is couched in entirely different vocabulary: Rather than speaking the language of nationalism and protectionism, opposition in the EU invokes constitutional values and rights – namely democracy, the rule of law, and fundamental rights – which are leveraged against mega-regionals and the institutions they come with, notably investor-state dispute settlement (ISDS) and regulatory cooperation.

Increasing Involvement of Constitutional Courts

Couching opposition to mega-regionals in constitutional language has important consequences: It brings in a different set of actors, namely constitutional courts. Following earlier examples in Latin America, the 13 October 2016 ruling of the German Constitutional Court on an application for an injunction against the Canada-EU Comprehensive Economic and Trade Agreement (CETA) brought by some 120,000 individuals is likely just the first of many court rulings in which international economic law encounters its constitutional frontiers head-on. Read the rest of this entry…

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The Security Council’s Response to the Ebola Crisis: A Step Forward or Backwards in the Realization of the Right to Health?

Published on March 2, 2017        Author: 

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

The fight against Ebola has brought into stark focus the global threat emanating from viral diseases. In response to the outbreak of the deadly virus in Africa, in 2014 the UN Security Council adopted Resolution 2177 characterizing the epidemic as a threat to international peace and security and calling in its operative paragraphs on all Member States to provide international assistance and co-operation.

While the resolution has been widely applauded as a landmark for global public health (see e.g. here and here) this post questions whether the peace and security approach taken by the Council risks undermining the normative force of the right to health and the associated obligations of international co-operation. To better appreciate the challenges posed by the Security Council’s response to Ebola, the post will first briefly look at the content of Resolution 2177 before reflecting on what the resolution omits. Against this background the final part discusses what consequences flow from this (sin of) omission.

Governing in situation of crisis: UN SC Resolution 2177 

After convening an emergency meeting on 18 September 2014, the Security Council adopted Resolution 2177 entitled “Peace and security in Africa”. The resolution, sponsored by a record number of 130 countries and adopted unanimously by all Council members, characterized “the unprecedented extent of the Ebola outbreak in Africa” as a “threat to international peace and security”. After having underlined that:

“the outbreak is undermining the stability of the most affected countries concerned and, unless contained, may lead to further instances of civil unrest, social tensions and a deterioration of the political and security climate…”.

While the link between the virus and regional instability – let alone international stability –  is not made entirely clear in the resolution, the reference to international peace and security in a non-military context hardly constitutes a novelty in the Council’s history. Ever since the end of the Cold War the significance given to “non-military sources of instability in the economic, social, humanitarian and ecological fields” (see Presidential Statement S/23500, 31 January 1992), has meant a widening of the Security Council’s traditional area of competence beyond the limited sphere of inter-state military conflict. Read the rest of this entry…

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International Law in the Age of Trump

Published on February 28, 2017        Author: 

In the second month of Donald Trump’s presidency, we still know little about his foreign policy agenda. He regularly said things during the campaign that suggested a radical departure from longstanding tenets of U.S. foreign policy. And during his first month in office, he caused more than his fair share of diplomatic offense and confusion. But as the New York Times has reported, Trump’s foreign policy has already become more centrist. It’s fair to say, then, that we don’t really know what Trump will do on the international stage.

Still, there’s good reason to believe that the Trump administration will pose unprecedented challenges to international law. In this post, I’ll discuss the three principal ways in which the administration is likely to undercut the existing international legal order. My goal is simply to outline the distinct risks so that we can better appreciate them. I don’t at this point propose any solutions.

  1. Corroding Legal Norms

The first possibility is the most obvious one and has already received some attention: the United States might more readily violate substantive rules of international law or disregard accepted processes for making legally relevant decisions. International legal theorists sometimes claim that legal violations—particularly, high-profile violations by one of the most powerful countries—risk unraveling the entire enterprise of international law. For example, this is how Thomas Franck expressed his concerns about the George W. Bush administration in 2006: “When a community loses faith in law’s power to restrain and channel conduct, this perception propels the descent into anarchy.”

Even if that rhetoric is hyperbolic (and I think it is), repeat violations might corrode specific legal norms. After all, any interaction that puts a particular norm at issue communicates not only whether the norm was effective in the case at hand but also what the norm requires going forward and to what extent it reflects an operative commitment. If the United States repeatedly and blatantly violates a norm, and suffers little repercussion, it will, if nothing else, weaken that norm. In my view, this process of normative evolution is not necessarily bad. Eroded norms might be replaced by new ones that better reflect current problems or expectations. Even so, the transition could be destabilizing. And it would be undesirable if its effect is to increase the threats to global security or human lives.

To be sure, the United States has violated international law before. Reasonable people can disagree about the frequency of those violations, but they are all but certain to accelerate under the Trump administration. President Trump has made clear that he intends to put “America first.” He has also indicated that he defines America’s interests very differently than his predecessors. It’s not a stretch, then, to assume that putting America first means exploiting U.S. power to evade legal rules and processes that the United States has long accepted. Moreover, while other global actors might at times push back against the United States—while they might use international law to try to condemn or constrain it—its raw power could well frustrate these efforts. Read the rest of this entry…

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