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Home Archive for category "Jurisdiction" (Page 11)

Vaughan Lowe on Marko Milanovic’s Book

Published on December 2, 2011        Author: 

Vaughan Lowe is Chichele Professor of International Law at the University of Oxford and Fellow of All Souls College, Oxford

In his perceptive and incisive analysis, Dr Milanovic argues that the concept of jurisdiction in the European Convention on Human Rights is not the same as the concept of jurisdiction in general international law. Specifically, he argues that the State obligation to respect human rights is not limited territorially but that the obligation to secure or ensure human rights is limited to those areas that are under a State’s effective overall control. The analysis is convincing, and the approach gives a robust and powerful tool for determining the scope of human rights obligations.  Applauding that achievement, I wonder if there is not also room for an equally fundamental challenge, arguing that the concept of ‘rights’ in human rights conventions is not the same as the concept of ‘rights’ in general international law.

In an article in the 2006 British Yearbook of International Law, Lea Brilmayer argued that human rights treaties should be seen as pledges rather than contracts, so that analyses based upon reciprocal rights and obligations, of the kind that characterise the traditional discussions of treaties, should not be thought to be necessarily appropriate to discussions of human rights treaties. A comparable shift in perspective would see the commitments in human rights treaties not as reciprocal agreements between States Parties or even as agreements to confer rights upon individuals, but rather as limitations upon the legal power (or at least upon the authority) of governments. There would, in short, be some things that States bind themselves not to do, anywhere.

 Those limitations would limit the power of governments and constrain its exercise, no matter what the particular geographical destination of the government action might be. States Parties to human rights treaties would not be seen as agreeing between themselves that they will not arbitrarily deprive human beings of liberty; rather, governments would commit themselves to the principle that no State has the legal power or authority arbitrarily to deprive a human being of liberty, and would agree that in all circumstances in which a determination of the legality of their action is in question their conduct should be appraised by reference to that and other principles set out in human rights treaties.

On this basis, it would not matter where the act had occurred: the question would be simply whether conduct attributable to the State was or was not consistent with the principles which the State had committed itself to observe. That, surely, is more in harmony with the notion of human rights as intransgressible norms than is the view that one has to be standing in a particular place in order to benefit from human rights.

This is the result that Dr Milanovic achieves by his distinction between the obligation to respect human rights and the obligation to secure or ensure them. But the route to that result is slightly different. Concentration on ‘human rights as pledges’ would enable arguments to be built upon a wider range of materials than treaties that have entered into force with the State concerned; and on some accounts of the principle of good faith (such as that in Bin Cheng’s enduring classic, General Principles of International Law) would also entail legal constraints upon the abandonment of the pledge. It would also attach the obligation firmly to the substantive rule governing State behaviour, and avoid any temptation to confine the obligation to a particular system for the handling of complaints that the State has violated its duties.

The questions would not, of course, end there. It would be necessary to go on to ask what consequences flow from conduct that is not consistent with the applicable principles of human rights law. But that approach may itself carry benefits. Action by a victim of a human rights violation would follow the forms of action in national law – actions for assault or trespass to the person or whatever. The point would be that the State lacks the legal power to authorize the injurious conduct.

Marko Milanovic has described a powerful and innovative approach to the conceptualisation of human rights norms, and it is a project which deserves not only the closest attention but also the most vigorous pursuit.

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European Court Decides Al-Skeini and Al-Jedda

Published on July 7, 2011        Author: 

HUDOC service has been intermittent this morning, but the judgments are now available – Al-Skeini v. UK, Al-Jedda v. UK – and they were well worth the wait. For more background, see my case preview and my thoughts on the alleged ’embassy exception.’ In brief, the UK government lost quite badly, while the Grand Chamber has effectively overruled the House of Lords on a number of points; the applicants have every reason to be pleased. In Al-Skeini, the Court held that (1) all of the applicants were within the UK’s Art. 1 ECHR jurisdiction and (2) that the UK has not held an Art. 2-compliant investigation in five of the cases, all but that of Baha Mousa where there is an ongoing public inquiry. In Al-Jedda, the Court held that (1) Mr. Al-Jedda’s detention was attributable to and within the jurisdiction of the UK, and (2) as the UK had no obligation under a UN Security Council resolution to detain preventively and without judicial review, Art. 103 of the UN Charter was not even at play, and that therefore Mr. Al-Jedda was detained unlawfully under Art. 5(1) ECHR. In both cases the Court awarded substantial damages and costs. The financial and policy implications of the two cases are immense.

The most important bits are of course in the Court’s reasoning, as we will now see. Obviously, this analysis is relatively provisional and on short notice. However, it is clear that the Court has articulated some very important principles and that these will be leading cases on the various issues for many years to come. Importantly for precedential value, the Court was unanimous or near-unanimous in both cases . Whether the Court’s reasoning is persuasive on all counts will undoubtedly be a matter of controversy – I at least am certainly not persuaded on some of the counts, though I very much like the human rights-friendly end results. Without further ado, let us now move to the good, the bad, and the ugly in the two judgments.

(Warning! longish post).

Read the rest of this entry…

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ICJ Rules that it has no Jurisdiction to Hear Georgia v. Russia

Published on April 1, 2011        Author: 

Today the Court by 10 votes to 6 upheld a preliminary objection by the Russian Federation that it lacked jurisdiction in its dispute under CERD with Georgia, as Georgia failed to exhaust a preliminary requirement under Art. 22 CERD to attempt to resolve the dispute by negotiation before submitting it to the ICJ. The press release and summary are available here; the judgment will be available shortly.  The Court in effect overturned its (provisional) earlier finding in its provisional measures decision a few years back that Art. 22 did not impose such an obligation. In part at least due to changes regarding the composition of the bench, the erstwhile majority became the minority. I’m sure the dissenting opinions will be well worth a read.

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Proposed Amendments to UK’s Universal Jurisdiction Laws

Published on December 10, 2010        Author: 

Some months ago we noted that the UK’s coalition government was planning to introduce legislation that would restrict the application of universal jurisdiction in the UK. The government was not proposing to restrict the scope of jurisdiction of UK courts over universal jurisdiction offences but to restrict the right of private persons to secure arrest warrants in respect of such offences. This was a matter of concern to some foreign governments most notably Israel after attempts to arrest a number of Israeli officials in the UK. As Ruvi Ziegler notes in a comment to my earlier post, the government has now put those proposals in the Police Reform and Social Responsibility Bill published last week. Read the rest of this entry…

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Filed under: EJIL Analysis, Jurisdiction
 
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JHHW to Stand Trial in France for Criminal Libel – Refusal to Remove a Bookreview which Displeased the Author of the Reviewed Book

Published on February 11, 2010        Author: 

The latest issue of EJIL is now out. The Table of Contents is posted below, but we wanted to draw EJIL: Talk! readers’ attention to the Editorial, which concerns an attempt in France to prosecute EJIL’s Editor in Chief for criminal libel. A link to the full editorial is posted below.

Editorial 20 4

The below Table of Contents is available online at: http://ejil.oxfordjournals.org/content/vol20/issue4/index.dtl

Editorial

JHHW
Editorial: Book Reviewing and Academic Freedom
Eur J Int Law 2009 20: 967-976; doi:10.1093/ejil/chp114 [Full Text] [PDF]   

EJIL: Debate! Anniversary Edition

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Prosecution of Senior Rwandan Government Official in France: More on Immunity

Published on December 24, 2008        Author: 

French authorities have announced this week (see here) that a senior Rwandan official, Rose Kabuye, who is curently detained in France, will be allowed to travel to Rwanda for the Christmas holidays. Rose Kabuye was at the time of her arrest the Chief of Protocol to current Rwandan President Paul Kagame. She is accused (see here), under French Anti-Terrorism laws, of complicity to murder in connection with the killing in 1994 of then Rwandan President Juvenal Habyarimana. It was, of course, that murder which led to the Rwanda Genocide.  She was arrested in November at Frankfurt Airport (Germany) under an arrest warrant issued by French officials. She was subsequently transferred to France. Her arrest has worsened the already bad relations between Rwanda and France. They have also led to a diplomatic row between Rwanda and Germany and Rwanda has expelled the German Ambassador in the country.

Rose Kabuye’s arrest, detention and prosecution raises questions regarding the immunity of foreign officials from criminal prosecution in foreign domestic courts. The particular question at issue in the Kabuye case is: which State officials are entitled to personal immunity? Was it lawful for France to issue an arrest warrant for a senior Rwandan official and was it lawful for German authorities to execute that warrant? Or was (is) Rose Kabuye within that category of officials who are entitled to personal immunity from the jurisdiction of foreign States for so long as they serve in their official position?  Read the rest of this entry…

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