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Home Sources of International Law Archive for category "Customary International Law"

President Erdogan versus Jan Böhmermann: Do Bad Poems Make Bad Law? – Reforming the Defamation of Foreign Heads of States under German Criminal Law

Published on June 23, 2017        Author:  and

Note: Revised and translated version of a statement made before the Legal Committee of the German Bundestag at an expert hearing on 17 May 2017, further elaborating on questions that were raised by Veronika Bílková in her EJIL:Talk! post “Thouh shalt not Insult the (Foreign) Head of State?”, dated 28 April 2016 and commenting on subsequent developments.

1. Prologue

In 2016, after the Turkish government had requested the deletion of a satirical song about Turkish President Erdogan, aired on a German TV show, the Turkish Head of State became the subject of another, rather vulgar, satirical poem fittingly titled “Schmähkritik” (“defamatory critique”), recited by the German comedian Jan Böhmermann on his TV show in March, 2016. This in turn led to the initiation of a criminal investigation against the said German comedian, instigated both by the Turkish government, as well as by Turkish President Erdogan personally. Thereafter, President Erdogan also pressed civil charges against Böhmermann before German courts. As far as the criminal proceedings initiated by the Turkish government were concerned, a violation of Section 103 Criminal Code was claimed which currently still provides as follows:

Section 103 German Criminal Code
Defamation of organs and representatives of foreign states

(1) Whosoever insults a foreign head of state, or, with respect to his position, a member of a foreign government who is in Germany in his official capacity, or a head of a foreign diplomatic mission who is accredited in the Federal territory shall be liable to imprisonment not exceeding three years or a fine, in case of a slanderous insult to imprisonment from three months to five years.

Section 104a German Criminal Code further provides that before any such criminal proceedings under Section 103 German Criminal Code may be initiated, the German government has to formally authorize such proceedings: Read the rest of this entry…

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40th Anniversary of the Additional Protocols of 1977 of the Geneva Conventions of 1949

Published on June 8, 2017        Author: 

On 8 June 1977, at the invitation of Switzerland, plenipotentiaries of more than one hundred States gathered at the “Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts” to finalize and adopt Additional Protocols I and II (APs I and II) to the 1949 Geneva Conventions (GCs). Together with the GCs, APs I and II form the core of international humanitarian law.

Their adoption forty years ago marks a milestone in the regulation of armed conflicts. By developing and supplementing the GCs, AP I and II significantly improved the legal protection of victims of armed conflicts. A key achievement of the APs I and II was codifying and developing rules on the conduct of hostilities and those related to the protection of civilians from the effect of hostilities. In treaty law, these rules had remained untouched since the Hague Conventions of 1907. Another crucial enhancement lies in the extension of the protection granted under the GCs to all medical personnel, units and means of transport, whether civilian or military. Read the rest of this entry…

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Back to Old Tricks? Italian Responsibility for Returning People to Libya

Published on June 6, 2017        Author: 

On 10/11 May 2017 various news outlets reported a maritime operation by the Libyan authorities, in coordination with the Italian Search and Rescue Authority, in which 500 individuals were intercepted in international waters and returned to Libya. This operation amounted to refoulment in breach of customary international law and several treaties (including the Geneva Refugee Convention and the European Convention on Human Rights), and an internationally wrongful act is one for which Italy bears international legal responsibility.

According to reports, the migrant and refugee boat called the Italian Maritime Rescue Coordination Centre (MRCCC) whilst it was still in Libyan territorial waters. MRCC contacted both the Libyan coastguard and an NGO vessel (Sea Watch-2) with the latter sighting the boat after it had left Libyan waters and was in international waters. During preparations for the rescue, the NGO boat was informed by the Italian authorities that the Libyan coastguard boat which was approaching had “on scene command” of the rescue operation. Attempts by the NGO vessel to contact the Libyan authorities were not picked up. The Coastguard proceeded instead to cut the way of the Sea Watch 2 at high speed and chase its rescue boat. It then stopped the refugees and migrant boat. Reports indicate that the Libyan coastguard captain threatened the refugees and migrants with a gun and then proceeded to take over the migrant boat. Read the rest of this entry…

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Forcible Humanitarian Action in International Law- part II

Published on May 18, 2017        Author: 

Part II of a Two-Part Post

Interpreting Article 2 (4) of the UN Charter

According to the concept of representation noted in Part I, forcible humanitarian action is not intervention or a prima facie unlawful use of force, given the actual or implied consent of the true sovereign. However, even if forcible humanitarian action is considered an instance of the use of force that requires justification, it is still lawful.

Article 2(4) of the UN Charter precludes the threat or use of force against the territorial integrity and political independence of any state, or in any manner inconsistent with the purposes of the United Nations. The reach of that obligation has been debated since the inception of the Charter. Some argue that Article 2(4) did not affect pre-existing customary law, which permitted forcible humanitarian action, much like Article 51 of Charter on self-defence has not overturned the conditions for the exercise of that right expressed in the Caroline formula of 1841/2.

Others claim that Article 2(4) was meant to impose a blanket prohibition of the use of force, save for self-defence and action mandated by the UN Security Council under Chapter VII of the Charter. This is countered, however, with reference to the fact that Chapter VII never came into full operation, at least during the Cold War years.

Even after the termination of the Cold War, collective action has often been precluded by the particular interest of the one or other permanent member of the Council holding a veto. This would leave populations without the protection of international action which was assumed to be available when Article 2(4) was drafted. It would be manifestly unreasonable to leave them exposed to destruction merely due to the peculiar interest of the one or other powerful state exercising a capricious veto. Read the rest of this entry…

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The Brexit Bill and the Law of Treaties

Published on May 4, 2017        Author: 

As has been widely reported in the media (e.g. The Guardian, the BBC), the House of Lords reached two main legal conclusions in its March 2017 report on Brexit and the EU budget:

  1. Article 50 TEU allows the UK to leave the EU without being liable for outstanding financial obligations under the EU budget and related financial instruments, unless a withdrawal agreement is concluded which resolves this issue.(para. 135).
  2. The jurisdiction of the CJEU over the UK would also come to an end when the EU Treaties ceased to have effect. Outstanding payments could not, therefore, be enforced against the UK in the CJEU. (para. 133).

The UK government appears to have adopted a similar position on the Brexit bill as the House of Lords. The German newspaper Frankfurter Allgemeine Zeitung published an account of a ‘disastrous Brexit dinner’ at the end of April 2017 between UK Prime Minister Theresa May and Commission President Jean-Claude Juncker in which PM May reportedly argued that the UK does not owe anything to the EU upon its departure. The fact that this dinner conversation was leaked led to strong criticism, particularly in the UK as the campaign for the general election in June is currently underway (see for example here and here).

On 3 May 2017, the UK’s Brexit Secretary David Davis in a TV interview emphasized that he had not seen any official figure of the EU’s demands, and left open room for compromise:

[The UK] have said we will meet our international obligations,  but there will be our international obligations including assets and liabilities and there will be the ones that are correct in law, not just the ones the Commission want.

However, he indicated that the UK would not pay €100 billion upon leaving the EU.

The Commission’s draft negotiating directives for Article 50 negotiations with the UK, published later on the same day, emphasize the need for a ‘single financial settlement’ of the UK’s financial obligations as a member ‘in full’ – referring to it as a ‘settling of accounts’, rather than ‘punishment’. In February, the EU Commission claimed that the UK owes the EU around €60 billion as a result of its EU membership since 1973 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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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 Evacuation of Eastern Aleppo: Humanitarian Obligation or War Crime?: A Reply

Published on March 27, 2017        Author: 

 

This post is written as a reply to the interesting contribution made by Elvina Pothelet on the topic of forced displacement in Syria. In her article, Elvina examined the legal foundation for the claim that the evacuation of Eastern Aleppo amounts to the war crime of forced displacement. I would like to build on this work, but distinguish my arguments in two respects. First, by also approaching the case from the perspective of a charge of crimes against humanity, under Article 7(1)(d) and second, by arguing that contrary to Elvina’s interpretation, the ‘ordering’ requirement found in Article 8 (2)(e)(viii) should in fact be interpreted more liberally, in light of three counter arguments.

Forced Displacement as a Crime Against Humanity – Article 7(1)(d)

As with any assessment of this nature, it is undertaken on the basis of information freely available. With those responsible for displacing, in my view being the Syrian regime officials for their actions in Eastern Aleppo, not those who brokered or signed the evacuation agreement. With this in mind, I shall outline how the elements of Article 7(1)(d) are satisfied.

Contextual Elements

With respect to the contextual elements, the campaign launched by Syrian forces to retake Eastern Aleppo was an organised state policy. A legitimate question however, can be raised as to whether the civilian population was the primary object of the attack, (Kunarac Appeals Judgment para 91) or merely an “incidental victim of the attack’’, (Bemba Confirmation of Charges para 76). Given the means and methods used in Aleppo, (Kunarac Appeals Chamber Judgment para 91)  which are alleged to include “killing people, including women and children, on the spot in their homes and on the street,” there is at least a reasonable basis to believe that the civilian population were the object of the attack. Read the rest of this entry…

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Corporate Liability Debate still Alive and Kicking in US Courts

Published on May 30, 2016        Author: 

While various bodies of the UN continuously work on the issue of the human rights law obligations of multinational corporations, the US courts have been grappling with the question as to whether such entities can be held liable for violations before domestic courts. While some observers lamented the death of the corporate liability debate following the 2013 Supreme Court decision Kiobel II, it appears that the discussion is still very much alive. Continuous disagreement among US courts shows that corporate liability for human rights violations is a complicated issue, as a matter of both domestic and international law.

The Arab Bank Case

In December 2015, a panel of the US Court of Appeals (Second Circuit) ruled on the case of Arab Bank, which concerned claims brought against Arab Bank PLC for its alleged role in financing and facilitating armed attacks that took place in Israel between January 1995 and July 2005. The plaintiffs alleged that Arab Bankʹs involvement with payments to the families of ‘martyrs’ incentivized and encouraged suicide bombings and other killings that harmed the plaintiffs. In its judgment, the Second Circuit confirmed the position taken in Kiobel I (2010), in which it held that corporations cannot be held liable under the Alien Tort Statute (ATS, 28 U.S. Code § 1350).

Arab Bank was heard by a different panel of the same Court of Appeals that had issued Kiobel I. The panel struggled in deciding whether to follow the Court’s own precedent (Kiobel I) or the subsequent Kiobel II decision of the Supreme Court. In that much-debated decision, the Supreme Court affirmed Kiobel I, but on different grounds, namely that a presumption against extraterritoriality applies to ATS cases, without discussing the original question of corporate liability. The Arab Bank panel identified several ways in which Kiobel II had “cast a shadow on Kiobel I”. It nevertheless decided to follow its own precedent in Kiobel I and left it to “either an en banc sitting of [the Second Circuit] or an eventual Supreme Court review to overrule Kiobel I”.

The latest development occurred on 9 May 2016, when seven of the thirteen judges of the Second Circuit rejected a petition for an en banc review of the Arab Bank case. Read the rest of this entry…

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Determining Customary International Law: The ICJ’s Methodology and the Idyllic World of the ILC

Published on December 3, 2015        Author: 

Editor’s Note: This is the author’s concluding post in the EJIL:Debate! regarding an article in the current issue of EJIL Vol. 26 (2015) No 2, by Stefan Talmon. The original post is here. See also the posts discussing the article by Omri Sender and Michael Wood, Harlan G. Cohen and Fernando Lusa Bordin.

I am very grateful to Sir Michael Wood and Omri Sender, as well as Harlan G. Cohen and Fernando Lusa Bordin, for their thoughtful comments on my EJIL article. Both Harlan and Fernando seem to agree with my main propositions and, in particular, with the proposition that the ICJ, in order to determine rules of customary international law, uses induction and deduction as well as assertion. They raise interesting questions that I did not address in my article, such as why the ICJ was not more interested in developing a clear methodology and why States might actually prefer ‘methodological mayhem’, or the flexibility of methodological uncertainty, over the strict application of the inductive method or a relaxation of the demands of that method. Their contribution takes the debate further and may be read as a complement to my article.

In the following, I will focus on the comments of Sir Michael Wood and Omri Sender, who are more critical of my propositions. I will only deal with their substantive comments and leave readers to decide for themselves how many eyebrows they would like to raise while considering what the authors identified as ‘some bold statements’ in my article without, however, specifying their concerns. Let me respond to their counter propositions one by one before offering some final remarks on the work of the ILC, and thus Sir Michael’s work as its Rapporteur, on the identification of customary international law. Read the rest of this entry…

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