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Home International Organisations Archive for category "Council of Europe"

Irregular migration after the Aquarius incident: moving beyond the law. A reflection on Fink and Gombeer

Published on July 5, 2018        Author:  and
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Introduction

Last month, EJIL: Talk! published a piece by Fink and Gombeer on the legality of Italy and Malta’s recent failure to provide a safe haven to a rescue vessel Aquarius. Essentially, the authors concluded that the refusal by these states to open their harbours is ‘regrettable, at the very least, but not necessarily unlawful.’ On their view, for the reasons elaborated in their analysis, neither the law of the sea nor human rights law have been ‘evidently’ breached. It follows that these two branches of law, in the context of ‘Aquarius-like incidents’, provide rather no avail to asylum seekers; in other words: law has its own limits.

The fate of Aquarius and her passengers is yet another example of an endless list of scenarios where people from predominantly war-torn, repressed or impoverished territories often attempt to irregularly cross international borders; a large number of them seeking help, safety and a better life. This and similar events illustrate not only that the handling of the arrival of asylum seekers, especially in Europe, has fostered multiple crises, but also that irregular migration will not cease to occur. Hence, the need for a long-term, responsible and visionary solution is evident.

Fink and Gombeer reflect de lege lata, and their diagnosis is valid and all the more relevant nowadays, de lege ferenda, as the governance and management of migration is largely being reformed, on multiple levels, precisely to address contemporary challenges and expectations. Among others, the European Union (EU) attempts to reform its migration and asylum policy, predominantly the so-called Dublin system, and the United Nations (UN) is expected to adopt its Global Compact on Migration by late 2018.

Having read Fink and Gombeer’s analysis, we cannot help but reflect on their main conclusion in light of these reforms. These authors basically identify a ‘gap’: the law has its own limits. We, in turn, reflect further on filling the said ‘gap’. We ask what can be done to overcome the limitations of law in order to ensure more holistic protection of asylum seekers?

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The Salisbury Attack: Don’t Forget Human Rights

Published on March 15, 2018        Author: 
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It is fascinating to observe how international law has provided the frame for the escalating political dispute between the UK and Russia regarding the attempted murder of Sergei Skripal and his daughter with a nerve agent in Salisbury. The dispute is of course primarily factual. In that regard, both states generate their own facts, and the dispute revolves primarily on whom one chooses to trust – what does the average citizen (or international lawyer) know, after all, about the Novichok-class of nerve agents, their deployment, properties and effects? The attribution of the attack will thus inevitably depend on the credibility of the relevant experts, investigators and intelligence officials.

But again – note the framing effect of international law on this dispute. We saw how Theresa May chose her language very carefully when she accused Russia of an unlawful use of force (but not necessarily an armed attack). Both the UK and Russia have accused each other of failing to abide by the Chemical Weapons Convention. Russia has challenged the credibility of the UK’s investigation, asking for the involvement of the OPCW as an independent, expert and competent third party. The UK itself has engaged with the OPCW, asking it to verify its forensic analysis. The debate in the Security Council yesterday was replete with references to the Convention and OPCW specifically and international law generally. So was the debate earlier in the day in the British Parliament (Hansard transcript).

There is, however, one part of international law that has been largely and unjustifiably missing from this debate, and that is human rights. The attempted killing of Mr Skripal and his daughter is not simply  a violation of the UK’s sovereignty, as set out in today’s joint statement of the UK, US, France and Germany. It is a violation of these individuals’ right to life. In that regard, while I think the discussion that Marc Weller and Tom Ruys have so ably led about the de minimis thresholds (if any) of the concepts of the use of force in Article 2(4) and armed attack in Article 51 of the UN Charter is both interesting and very important, it is in my view somewhat distracting, as is the focus on chemical weapons. It is these two people (and others incidentally affected) who are the main victims here, not the British state. It is their rights in international law that we should primarily be concerned with, not those of the British state (or for that matter Russia). It is their life that was endangered, not that of the British state. And their right to life would have been no less harmed if they were simply shot or stabbed or even poisoned a bit more subtly by an FSB agent.

I am thus struck by the absence of public references to the violation of Skripals’ right to life. That, too, is I think calculated. The Prime Minister has repeatedly referred to the event as a (presumably domestic) crime; the UK ambassador to the UN has also said that ‘[t]he reckless act in Salisbury had been carried out by those who disregarded the sanctity of human life.’ But neither the Prime Minister nor the ambassador directly accused Russia of failing to comply with its obligations under human rights law. Why? Because if they did so, they would effectively be arguing that Russia’s obligations under say the ICCPR and the ECHR extend extraterritorially to a killing in the UK. And that, recall, is not what the British government wants to do, because it does not want to have to comply with these obligations if it used kinetic force abroad to kill an individual in an area outside its control, say by a drone strike.

Here, in other words, we can also see how international law shapes the arguments that are used, or not used. I have long argued that the 2006 killing of Alexander Litvinenko was – as far as the extraterritorial application of human rights was concerned – not legally distinguishable from cases of aerial bombardment a la Bankovic. The same goes for last year’s macabre killing of Kim Jong-nam in Malaysia, at the orders of his half-brother, the North Korean dictator. And the same is true here. Those arguing for a restrictive application of human rights – as the US and UK governments have both done – must be aware of the consequences of doing so. That argument necessarily implies that the interests of individuals like the Skripals, attacked so brutally by a hostile state, are not protected at all in international law. That vision of international law, in which individuals are the mere objects, and not subjects, of its regulation, is not terribly attractive, even – especially even – in 2018. And so I say: when talking about Salisbury, whether it is this Salisbury or some other Salisburys, don’t forget human rights.

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Copenhagen: Keeping on Keeping on. A Reply to Mikael Rask Madsen and Jonas Christoffersen on the Draft Copenhagen Declaration

Published on February 24, 2018        Author:  and
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The debate about the future of the European human rights system is absolutely vital, and with that in mind we venture here to reply to just some of the points made by Mikael Rask Madsen and Jonas Christoffersen in their post about the draft Copenhagen declaration.

Commenting on the position paper recently published by the European Court of Human Rights itself, Madsen and Christoffersen detect a ‘strikingly different tenor’ compared with our comments and those of other academics. However, the Court’s reticent tone is only what one would expect from an international judicial institution, in commenting on draft proposals by a member state of an inter-governmental institution such as the Council of Europe. We would observe that the Court’s apparent cautiousness should not be mistaken for consent to the proposals in the declaration. Indeed, we understand that the draft declaration has caused no little concern within the Council of Europe. We also understand that a number of states have already expressed their serious reservations about the way in which the draft declaration downplays the Court’s oversight, queries its independent judicial role, pronounces on how the Court should interpret and apply the Convention, and questions the principle of the universality of human rights. Closer to home, the Danish Helsinki Committee for Human Rights has called for its ‘complete revision’.

Subsidiarity

It is suggested by Madsen and Christoffersen that the declaration is simply codifying recent developments relating to subsidiarity, and they identify ‘an increased demand’ for subsidiarity since the Brighton Declaration. However, in its paper the Court underlines that the concept of subsidiarity is nothing new, and that it is context-dependent – a matter for the Court to assess in each case. Read the rest of this entry…

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A Danish Crusade for the Reform of the European Court of Human Rights

Published on November 14, 2017        Author: 
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Tomorrow (15 November) Denmark will take over the rotating chairmanship of the Council of Europe (CoE). The CoE was established in 1949 and has since adopted numerous treaties, including the 1950 European Convention on Human Rights (ECHR). Denmark is a CoE founding member and has traditionally been a strong supporter of human rights. Yet the Danish Government has announced that the chief priority of its chairmanship will be the reform of the European human rights system. This announcement may come as a surprise to the readership of this blog. This post therefore summarises the vicissitudes that have led to the Danish Government’s initiative, and provides some early reflections on its expected impact.

Why does Denmark want a reform?

Immigration has long been a dominant theme in Danish politics. In the late 1990s, the Danish People’s Party (DPP) began to denounce immigration, multiculturalism and Islam as alien to Danish society and values. Since 2001, the DPP has supported various minority coalition governments and gained extensive influence on Denmark’s immigration policy, which is now one of the most restrictive in Europe.

Critique of the ECHR is not new in Denmark, where much debate has focused on the influence of the Convention on the deportation of the foreign criminals. Read the rest of this entry…

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An Appraisal of the Council of Europe’s Draft European Rules on the Conditions of Administrative Detention of Migrants

Published on July 19, 2017        Author: 
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In the last decade, a growing momentum has developed to end immigration detention. This momentum has two dimensions. First, that certain migrants, such as children, should never be detained as they are in a situation of particular vulnerability. Second, that even if a migrant is not deemed to be in a situation of ‘particular vulnerability’, alternatives to detention should be preferred and detention only used as a last resort when lawful, for a legitimate purpose, necessary and proportionate. The exceptionality of immigration detention is rooted in the recognition of the harmful physical and psychological effects of the administrative detention of persons who are not accused of a crime. The adverse impact of detention is magnified when accompanied by uncertainty about when the detention might end as well as the risk of ill-treatment, discrimination and poor detention conditions.

In addition to the work of NGOs such as the International Detention Coalition, international organisations have called on states to develop alternatives to immigration detention with some producing action plans to end immigration detention. Read the rest of this entry…

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

Published on April 21, 2017        Author: 
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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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Flexing Muscles (Yet Again): The Russian Constitutional Court’s Defiance of the Authority of the ECtHR in the Yukos Case

Published on February 13, 2017        Author: 
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The saga in the case of the defunct Yukos oil company is far from over after the Russian Constitutional Court (RCC) in its decision of 19 January 2017 ruled that Russia was not bound to enforce the ECtHR decision on the award of pecuniary compensation to the company’s ex-shareholders, as it would violate the Constitution of the Russian Federation (CRF). The protracted argument between the Yukos oil company’s ex-shareholders and Russia has spanned over a decade before the ECtHR. In its judgment of 20 September 2011, the ECtHR found that Russia acted in breach of Art. 6 of the ECHR by failing to accord sufficient time to Yukos for preparation of its case before national courts. Further to this, the ECtHR found two breaches of Article 1 of Protocol I, in particular with respect to the assessment of penalties by the Russian tax authorities in 2010-2011 and their failure to “strike a fair balance” in the enforcement proceedings against Yukos. The issue of just satisfaction was settled in the 2014 ECtHR judgment that awarded 1,9 billion EUR in pecuniary damages to be paid by Russia to the Yukos ex-shareholders. It is an unprecedented amount of compensation that has ever been awarded in the context of human rights litigation, which makes Russia’s annual budget of 7,9 mil EUR allocated for enforcement of the ECtHR decisions look like a drop in the ocean. Following Russia’s unsuccessful appeal attempts in the ECtHR, the Russian Ministry of Justice brought the case before the RCC arguing against enforcement of the ECtHR judgment.

Uncertain Relationship Between International and Russian Law

The constitutional provisions on the relationship between international and Russian law are far from clear. As a general rule, the primacy of international treaties and agreements could be inferred from Art. 15(4) of the CRF:

If an international treaty or agreement of the Russian Federation provides for other rules than those envisaged by law, the rules of the international agreement shall apply.

The latest decisions of the RCC raise an important question on the relationship between international treaty law and Russian law, given its findings on the primacy of the Constitution if there exists a conflict between the rules of international and national law. 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: 
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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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The Spitzenkandidaten Exercise One Year Later – The Unsung Hero

Published on September 7, 2015        Author: 
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A year has gone by since the last elections to the European Parliament. One significant innovation in those elections was the Spitzenkandidaten exercise.

At the recent fifth edition of the ‘State of the Union’ organized by the European University Institute I conducted a public interview with Vice President of the European Commission Franz Timmermans.

Vice President Timmermans and I reached the point where we touched on that perennial topic of the still existing deficiencies of European democracy, resulting, inter alia, in widespread indifference as expressed in the low turnout to the last European elections – 2014 scored the lowest turnout ever.

Here is an edited transcript from the interview.

Weiler:  […]  Part of the problem is that when people go and vote for  the European Parliament, they are not really being offered a real political choice (the way, for example, yesterday they were offered in the United Kingdom – Labour or Conservative.), neither as regards the policies that will be pursued nor as regards who will govern them. So the delicate question is whether the Union in its processes needs to become overtly more political? Do you think the bold, even though limited, experiment of the last elections to the European Parliament with the ‘Spitzenkandidaten’, who delivered here in this space [the Salone dei cinquecento of the Palazzo Vecchio] one of the televised debates, should be pursued and perhaps deepened as one of the ways of addressing that problem of citizen disengagement?

Timmermans:  Yes, first of all … the core of the problem also refers to one of my favourite authors, Hannah Arendt, who … actually, if you bring back the essence of some of her writings [says] ‘ It is not the anger of the minorities that hates us, it is the indifference of the majority that makes things difficult’: and here we have a problem at the European level because institutions that are made to represent the people through direct democracy, or like the Commission through other means, are very often very, very far removed from the political perceptions of the citizens. There is no (not yet) European ‘demos’, European political focal point, and we will need the engagement at the national level to make sure that we will bring people closer to what is European decision-making; so the odd contradiction between … there are …. there is the ‘supernational’ level and there is the national level, and what we are doing is trying to take away from one, or trying to resist taking it away from one … We are in this together! The only way forward is for national governments and leaders to take the responsibility for the European project, and stop blaming Europe for everything that goes wrong and taking credit for everything that goes right; and we at the European level should indeed, I think, be more focused towards making our institutions more political.

I was myself sceptical of the ‘Spitzenkandidaten’ idea, right?  I criticized it publicly several times and I am happy to admit it here today… I was wrong! Because of the Spitzenkandidaten idea, we now have a President of the Commission who is not appointed by consensus in the European Council, but who was appointed and elected by the European Parliament, by a political process. The European Council had to accept that political process; it makes the President of the European Commission far more independent than I have seen in the past. And Jean-Claude Juncker is a political leader who takes this very seriously indeed, and you can see this in the dynamic between the Commission and the European Parliament, between the Commission and the European Council … Let me just refer to what Jean-Claude said about migration;  this was not consensual language as far as the European Council is concerned.  He took his position in a political way; he took his leadership role in a very straightforward way and gave us a leadership role in the migration debate.

Weiler: Ladies and gentlemen, it is not every day that you sit next to a politician who is willing to say ‘I was wrong!’

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Are Human Rights Hurting Migrants at Sea?

Published on April 24, 2015        Author: 
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Every year hundreds of thousands of irregular migrants, including asylum seekers and refugees, cross the Mediterranean Sea to enter Europe. More than 200.000 are thought to have crossed in 2014, reaching the coasts of Italy, Greece, Spain, Malta and Cyprus.

The reasons for the crossing are obvious. Some migrants flee conflict and persecution; others simply seek a better life in Europe. Regardless of motivations, crossing is not without perils. The UNHCR estimates that 3.500 lives were lost in 2014 while more than two thousand people have died since 1 January 2015.

After more than 300 migrants drowned near the island of Lampedusa in 2013, the Italian Government established the so-called Operation Mare Nostrum. Mare Nostrum was a humanitarian success. The International Organization for Migration applauded the “heroic work of Italy’s maritime forces”, which rescued some 100.000 people between 2013 and 2014. Despite widespread praise, Mare Nostrum ended in October 2014.

In its place, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (known by the more palatable name Frontex) established operation Triton. Read the rest of this entry…

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