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The Aquarius Incident and the Law of the Sea: Is Italy in Violation of the Relevant Rules?

Published on June 27, 2018        Author: 
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On 10 June, Italy refused Aquarius, a rescue vessel operated by the German NGO SOS Méditerranée, access to its ports and the disembarkation of more than 600 rescued migrants on Italian territory. This decision of the Italian authorities has elicited a considerable amount of criticism, both by European governments (Malta, Spain, France) and by the academic world (eg, this statement by a group of Italian lawyers). The post by Melanie Fink and Kristof Gombeer offers a valuable review of the incident and sheds light on various issues raised mainly with respect to maritime law and human rights law. Although Aquarius arrived safely in Valencia a week later, on Sunday 17 June, there are serious concerns that this was just the beginning of similar incidents, particularly in view of the announcement of the Italy’s new Minister of the Interior Matteo Salvini that this would be Italy’s new policy for NGO vessels rescuing migrants in the Mediterranean. Indeed, there have been reports of another similar denial of access to ports on the part of Italy, which markedly displays the growing importance of this issue. These incidents are just another link in the chain of the ongoing refugee crisis in Europe and, to no surprise, the EU called an Informal working meeting on migration and asylum issues on 24 June in preparation of the European Summit on 28 June regarding migration issues.

This post addresses the international law of the sea applicable to incidents like Aquarius, specifically questions relating to the closing of ports, the disembarkation question and the ordering or warning of vessels not to enter the territorial sea. Read the rest of this entry…

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De-humanisation? CJEU, Liga van Moskeeën en islamitische Organisaties Provincie Antwerpen on Religious Slaughter

Published on June 26, 2018        Author: 
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Introduction

In Case C-426/16, Liga van Moskeeën en islamitische Organisaties Provincie Antwerpen et al v. Vlaams Gewest, the Court of Justice of the European Union (Grand Chamber) in its judgment of 29th May 2018 decided that the EU law provision allowing religious slaughter without stunning the animal only in slaughterhouses (Art. 4(4) of Regulation No 1099/2009) is valid. It does not violate primary law: neither the freedom of religion as guaranteed in Art. 10 of the European Charter of Fundamental Rights, nor the animal welfare mainstreaming clause of Art. 13 TFEU.

Two weeks earlier, US President Donald Trump spoke about migrants:

We have people coming into the country, or trying to come in — and we’re stopping a lot of them — but we’re taking people out of the country. You wouldn’t believe how bad these people are. These aren’t people. These are animals. And we’re taking them out of the country at a level and at a rate that’s never happened before. And because of the weak laws, they come in fast, we get them, we release them, we get them again, we bring them out. It’s crazy. (The White House, Remarks by President Trump at a California Sanctuary State Roundtable, May 16, 2018 (emphasis added)).

Do both incidents have something in common? Both concern migrants, directly or at least indirectly. While President Trump’s statement is openly humiliating and racist, the EU regulation and its strict application by Flemish authorities that led to the CJEU judgment is not. Still, we might ask (what the Court did not) whether the Flemish case involves indirect discrimination against Muslims. I find that neither EU law nor its application violate fundamental rights. However, we need to remain vigilant because, speaking with Theodor Adorno, vilifying human and non-human animals might, in psychological and ethical terms, be related and even intertwined. Read the rest of this entry…

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Inter-American Court of Human Rights condemns Venezuelan regime’s political persecution against the opposition in the San Miguel Sosa and others case

Published on June 25, 2018        Author: 
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The Inter-American Court of Human Rights (hereinafter, IACtHR) published a recent decision (only available in Spanish) in the San Miguel Sosa and others vs. Venezuela case, by means of which it rebuts frequent arguments relied on by the Chavista[d1] –i.e. based on the ideas of former president Hugo Chávez— regime of Nicolás Maduro that label external and foreign criticism against its policies, frequently seen as abusive against political dissidents and others as contrary to human rights, as forms of intervention in its domestic affairs. This post translates relevant excerpts of the judgment on merits and reparations, and introduces some observations on the right to political participation under the American Convention on Human Rights.

The case was about the termination of contracts of persons who worked with the state of Venezuela soon after they participated in an initiative that sought to call for the celebration of a referendum on the termination of the mandate of then-president Hugo Chávez (para. 1). The list of those who signed in support of the referendum had been transmitted by the National Election Council (Consejo Nacional Electoral) to a ‘chavista’ member of parliament, Tascón (para. 131). Several state agents had told the applicants that the termination of their contract was the result of their disloyalty (paras. 137-139). While the defendant state argued that the contracts were terminated in order to lower costs and personnel (para. 140), the Court considered that this was not demonstrated. In this sense, it argued that the mere invocation of “convenience or reorganization, without providing more explanations” made the state arguments seem weak and lack precision “in relation to motivation”, supporting the “strength of circumstantial evidence” about actions that were actually meant to target lawful political and legitimate opposition action of some persons. Thus, the IACtHR concluded that there was a “reprisal against them for having legitimately exercised a political right enshrined in the Constitution, i.e. signing their support of the call for a referendum on the revocation of presidential mandate. The Court added, hence, that “the termination of the contracts was a “deviation of power” (para. 150), which exists when “there is a motivation or purpose that differs from that of a norm that confers powers to a state authority, [case in which it can be demonstrated that] the action can be regarded as an arbitrary one” (para. 121).

It is interesting to note that the Inter-American Commission on Human Rights had stated that the state of Venezuela’s assertion that the alleged victims had to fully demonstrate a nexus between an alleged discriminatory treatment and the authorities’ decisions would imply placing an excessive and absolute burden of proof on the applicants without the state having exhausted all the measures at its disposal to find out the truth, considering the complexity of the issue (para. 174). The Court, in turn, considered that while the termination of contracts was permitted by the legal system, it is possible to rebut a presumption that authorities acted in good faith (para. 122), as the Court found in this case based on circumstantial evidence (supra) flowing from evidence on the “Tascón list”, testimonies on conversations with state agents, statements of the president of Venezuela, and other elements that made the Court consider that “the termination of contracts took place in a context of high instability, political polarization and intolerance towards dissent, which could encourage forms of persecution or discrimination […] made possible by acts and declarations of members of the Executive and Legislative Powers, as well as of the competent electoral authority”, there having been no adequate state “precise and detailed explanation as to the motivation of its decision. In cases as the present one, the mere invocation of convenience or reorganization, without providing further explanations, is not sufficient, because the weakness of precisions as to motivation reinforces the likelihood of contrary circumstantial evidence […] Reason why the Court concluded that the termination of contracts was a form of deviation of power, which used [a] clause as a veil of legality to conceal the actual motivation or real purpose: a reprisal […] for having legitimately exercised a political right” (paras. 124-150).

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Announcements: CfP Asian Society of International Law; Workshop on Contemporary Perspective on International Investment Law; UN Audiovisual Library of International Law

Published on June 24, 2018        Author: 
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Call for Papers: The Asian Society of International Law. The Asian Society of International Law will be holding a regional conference hosted by the University of Renmin in Beijing on the theme of `International Law in Asia: Challenges and Opportunities’. The deadline for abstracts is 20 July 2018. For more information, please see here

University of East Anglia Law School Workshop on Contemporary Perspective on International Investment Law. On 4 – 5 July 2018, the University of East Anglia Law School is hosting the 6th Expert Workshop on Contemporary Perspective on International Investment Law in collaboration with the Universities of Leiden and Bologna. Participants will discuss the evolving nature of public participation in the operation of international tribunals, in the pre-investment phase, as well as in treaty negotiations. See here for more information. 

New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added the following Spanish lectures to the UN Audiovisual Library of International Law website: Sr. Juan José Ruda Santolaria on “El principio del uti possidetis iuris” and “La Santa Sede y el Estado Vaticano a la luz del derecho international”. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.

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Sanctioning Qatar Continued: The United Arab Emirates is brought before the ICJ

Published on June 22, 2018        Author: 
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On 11 June, Qatar initiated proceedings (“Application”) against the United Arab Emirates (“the UAE”) at the International Court of Justice under the Convention on the Elimination of all Forms of Racial Discrimination (CERD) and requested provisional measures. This step is yet another episode in the diplomatic standoff that took the world by surprise last year when Saudi Arabia, the UAE, Bahrain and Egypt (“the Quartet” or “Gulf States”) adopted a series of stringent measures against the oil-rich kingdom. When the crisis first erupted the Qatari foreign minister alluded to a violation of the principle of non-intervention when he claimed that the genuine motive behind the sanctions was “about limiting Qatar’s sovereignty, and outsourcing [its] foreign policy”. Rather than resort to retaliatory sanctions Qatar has turned to diplomacy, lobbying and various dispute settlement mechanisms. It has seized the United Nations, notably the Office of the High Commissioner for Human Rights (“OHCHR”), and the International Civil Aviation Organization (see also here and here) in search for support in condemning the coercive measures as unlawful. Qatar added pressure to the sanctioning States when it filed a request for consultation before the WTO’s dispute settlement body in August 2017 but ultimately decided to only pursue the complaint against the UAE. As noted by Johannes Fahner (see here) the proceedings before the WTO could lead to a GATT Article XXI case, which States have tended to avoid. By engaging the ICJ Qatar is taking its dispute against the UAE to the next level. Unlike the UAE, Saudi Arabia, Bahrain and Egypt adopted reservations to the ICJ’s jurisdiction under Article 22 of the Convention upon ratification.

In its Application, Qatar claims the expulsion of Qatari nationals from the UAE’s territory violates General Recommendation 30, adopted by the CERD Committee in August 2004 (para. 59), and have led to human rights violations:

“including the rights to marriage and choice of spouse, freedom of opinion and expression, public health and medical care, education and training, property, work, participation in cultural activities, and equal treatment before tribunals”

solely on the basis of their nationality contrary to CERD Article 5 (para. 63). The Application further lists the travel embargo – which closes off air, sea and land to and from Qatar – among the discriminatory measures as well as the shutting down of local Al-Jazeera offices and the blocking off of transmissions from Al-Jazeera and other Qatari-based media outlets. In addition, Qatar alleges the UAE has encouraged rather than condemned discrimination by:

“allowing, promoting, and financing an international anti-Qatar public and social media campaign; silencing Qatari media; and calling for physical attacks on Qatari entities”

in violation of CERD Articles 2 and 7 (paras 57 and 61 to 63). The UAE is also said to be responsible for breaching CERD Article 4 and inciting hate speech (para. 60). According to Qatar it has “fail[ed] to provide effective protection and remedies to Qataris to seek redress against acts of racial discrimination through UAE courts and institutions” in violation of Article 6 CERD (para. 64). Read the rest of this entry…

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Parliaments as Human Rights Actors – Proposed Standards from the UN

Published on June 21, 2018        Author:  and
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On 13 June 2018, the UN Office of the High Commissioner for Human Rights (OHCHR) released its report on the Contribution of parliaments to the work of the Human Rights Council and its universal periodic review, which will be discussed at the Human Rights Council session starting 18 June. The report includes a welcome proposal for a set of standards – the draft Principles on Parliaments and Human Rights – that cover the (i) mandate; (ii) responsibilities and functions (both domestically and vis-à-vis the international human rights system); and (iii) composition and working methods of a parliamentary human rights committee.

We have been advocating for the adoption of standards for four years, and in 2017 we published suggestions for the content of such standards in a chapter in Saul, Follesdal & Ulfstein (eds.) The International Human Rights Judiciary and National Parliaments (CUP) based on our work on this topic since 2013, and on outline standards presented at a Human Rights Council side event in 2014. This post discusses the importance of the proposed UN standards, and what needs to happen next.

Why should parliaments engage with the UN human rights mechanisms?

When we consider human rights actors on the domestic level, we typically think of the executive, the judiciary, the national human rights institution (NHRI), and civil society. But parliaments can also play a vital role. They can oversee the actions of the executive by ensuring that laws, policy and practice are in compliance with international human rights commitments. Yet, many parliaments do not fulfil this role. The OHCHR report and draft Principles could be crucial in encouraging greater parliamentary engagement on human rights. Read the rest of this entry…

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Will the Global Compact on Refugees Address the Gap in International Refugee Law Concerning Burden Sharing?

Published on June 20, 2018        Author: 
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Introduction

There are 65.6 million forcibly displaced persons including over 22.5 million refugees in the world. According to UN Refugee Agency (UNHCR), 10 states are hosting more than 60% of the world’s refugees while 10 states are providing 93% of UNHCR’s budget and three states are accounting for 90% of refugee resettlement. The number of refugees is growing and a more equitable sharing of the burden for hosting and supporting refugees is desperately needed. Despite this need international law, in particular, the principal instrument for the protection of refugees worldwide, the Convention relating to the Status of Refugees (the 1951 Convention) does not explicitly deal with burden sharing. The 1951 Convention does not provide clear pre-determined criteria for predictable sharing of burdens among states or introduce any mechanism to ensure adequate compensation to the states hosting or supporting more refugees than others. This creates, a well-documented gap in international refugee law concerning burden sharing. To address this gap and better respond to the changing and growing needs of people on the move, UNGA unanimously adopted the New York Declaration for Refugees and Migrants (New York Declaration) on 19 September 2016. In the New York Declaration, 193 states committed to a more equitable sharing of the burden and responsibility for hosting and supporting the world’s refugees. The New York Declaration foresaw adoption of a Global Compact on Refugees (GCR).  UNHCR is tasked to prepare this Compact, which consists of two components: the Comprehensive Refugee Response Framework (CRRF) and the programme of action. The latest draft of the GCR namely, the Third Draft was published on 4 June 2018. The final text of the Compact will be adopted by the UNGA later this year. This post reviews the Third Draft with a view to establishing whether the Global Compact on Refugees will fill the gap in the existing global refugee protection regime relating to burden sharing.  Read the rest of this entry…

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First and Second Degree Genocide? Considering a Case for Bifurcation of the Law

Published on June 19, 2018        Author: 
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At its inception, the crime of genocide, which broadly concerns criminal conduct targeted at a group, was generally seen as somehow more culpable or aggravated than international crimes targeted at an individual. Critical opposition to that view exists (See Milanović on the Karadžić and Mladić Trial Chamber judgments). Contemporary application, however, of the law continues to consider genocide as “horrific in its scope” precisely because perpetrators identify “entire human groups for extinction” and “seek to deprive humanity of the manifold richness its nationalities, races, ethnicities and religions provide” (Krstić, Appeals Chamber judgment, para. 36).

The Appeals Chamber in Krstić has emphasized that the gravity of genocide is “reflected in the stringent requirements which must be satisfied before this conviction is imposed” (para. 37). This includes proving a specific intent to destroy a group such that the group targeted for destruction was either the whole “protected group”, or a “substantial” part of that whole (the “substantiality test”). Where the requirements are satisfied, the Appeals Chamber implores that “the law must not shy away from referring to the crime committed by its proper name” (para. 37).

My contention is that the law in fact has shied away from referring to the crime of genocide by its proper name. Read the rest of this entry…

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The Settlement Agreement between Greece and the Former Yugoslav Republic of Macedonia

Published on June 18, 2018        Author: 
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On 12 June, Athens and Skopje announced that they have reached an agreement to resolve a dispute over the former Yugoslav Republic’s name that has troubled relations between the two states for decades. The agreement was signed at Prespes Lake, a lake at the border of Albania, Greece, and the former Yugoslav Republic of Macedonia, on 17 June. Despite the historic significance of the deal, following its announcement, the two governments have faced furious backlash. Voices on both sides condemn the agreement in the strongest possible terms, with the President of Macedonia, Gjorge Ivanov, rejecting the deal point-blank and the Greek opposition submitting a motion of no confidence against Prime Minister Alexis Tsipras and his government, which failed to carry late on the night of 16 June, a few hours before the signing of the Agreement.

The present contribution provides an overview of the main points of the Agreement reached between the two neighbours to end their 27-year-long bitter dispute.

Historical Background

The former Yugoslav Republic of Macedonia is the interim designation of the constitutionally named ‘Republic of Macedonia’ (Republika Makedonija) at the time of accession to the UN. The Republic of Macedonia declared independence in 1991 at the dissolution of the SFRY, and sought international recognition. The use of the name ‘Macedonia’ has created a long-lasting dispute with the neighbouring country of Greece. Read the rest of this entry…

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Announcements: CfP Canadian Journal of Development Studies on Law, Governance and Development; CfS International Law and Conflict at Sea

Published on June 17, 2018        Author: 
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1. Call for Papers: Special Issue of the Canadian Journal of Development Studies on Law, Governance and Development: Critical and Heterodox Approaches. The myriad legal and policy instruments in the governance of development have shifted and evolved in significant ways in recent years, posing challenges to scholars, policy-makers and practitioners on how to effectively map, analyse and critique their nature and effects. Contributions are being sought (in French and English) for a bilingual Special Issue of the Canadian Journal of Development Studies, co-edited by Mark Toufayan and Siobhan Airey, to explore these questions from heterodox and critical perspectives. The aim of this Special Issue is to critically examine the role of law and the nature of legality in specific initiatives focused on ‘development’, and its implications for the evolving nature and governance of the relationship between states, markets, peoples, communities and the natural environment at levels and scales that transcend that of the nation state. We invite submissions on engagements between law, governance and development from a wide range of critical perspectives, including feminism, TWAIL and postcolonial scholarship, history and ethnography, critical geography, critical IR and political economy, Marxist and materialist perspectives, etc., and that focus on developments both within and between the Global North and South, and on particular scales and sites of governance. Proposals of 500-750 words, as well as a short CV, should be sent to mark.toufayan {at} uqo(.)ca and siobhan.airey {at} ucd(.)ie by 20 July 2018. For the full text of the call, please see here.

2. Call for Submissions: International Law and Conflict at Sea. The Stockton Center for International Law at the U.S. Naval War College invites submissions for its upcoming legal workshop, International Law and Conflict at Sea, at the Naval War College in Newport, Rhode Island on 27­ – 28 November 2018. This workshop will feature leading scholars on the law of the sea, international humanitarian law, and maritime security and include a keynote address from Professor Wolff Heintschel von Heinegg, Chair of Public Law at the Europa-Universität Viadrina in Frankfurt (Oder), Germany. This workshop will focus on conflict at sea, both at the high end of gray zone operations and at the low end of naval warfare. Thus, in addition to law of naval warfare and law of the sea considerations, scholars will also draw upon maritime security and other relevant bodies of law. Those interested in presenting a paper should submit a proposal to John Hursh, Director of Research at the Stockton Center at john.hursh.ctr {at} usnwc(.)edu. Proposals should include a title, an abstract of no more than 500 words, and a current CV or resume. The deadline for submitting a proposal is Friday 31 August, although earlier submissions are strongly encouraged. Those selected to present will receive notification by 15 September. The Stockton Center anticipates that it will be able to provide travel and lodging for selected presenters. All questions should be addressed to john.hursh.ctr {at} usnwc(.)edu.

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