Comments on Shany’s “No Longer a Weak Department of Power?”

Published on June 11, 2009        Author: 

 From July 2009, Professor Laurence Helfer will be the Harry R. Chadwick, Jr. Professor of Law at Duke University School of Law. His publications include: “Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community”, (2009) 103 Am. J. Int’l L. 1 (with Karen Alter and Florencia Guerzovich); and  Why States Create International Tribunals: A Response to Professors Posner and Yoo,” 93 California Law Review 899 (2005) (with Anne-Marie Slaughter)

 Yuval Shany is a leading international law scholar of international courts and tribunals.  His many publications, including two books in Oxford University Press’s International Courts and Tribunals Series, have literally mapped the field’s coordinates.  His work has explored both the horizontal connections among the burgeoning number of international adjudication mechanisms and vertical relations between international judges and their national colleagues.

 In his recent article, No Longer a Weak Department of Power? Reflects on the Emergence of a New International Judiciary, Professor Shany provides a clear-eyed and succinct overview of changes “in the ethos underlying the operation of international courts” that are the result of an increase in the number of such courts and an expansion of their authority.  Whereas the ground norm that once informed international adjudication was dispute resolution, Professor Shany argues that the new international judiciary emphasizes different values-“the advancement of specific normative and institutional goals,” the maintenance of subject-specific international regimes, and “strengthening the rule of law.”  After describing these “new ethoi,” No Longer a Weak Department of Power? provides a brief tour of the contemporary international judicial landscape, including its peaks (such as the adjudication of international trade disputes and the role of national courts in applying international law) and its valleys (jurisdictional and normative conflicts and compliance problems).

 In this comment, I first highlight what I see as the principal contributions of Professor Shany’s  article.  I then discuss one small ambiguity in the article concerning whether international courts can or should resolve “high politics” and “high profile” disputes, such as those involving the use of force and terrorism.  I conclude by arguing for a more empirically-grounded approach to the study of international courts and tribunals, an approach that includes paying greater attention to the distinctive characteristics of the many regional and sub-regional courts outside of Europe whose increasing activity has been ignored by most scholars.

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No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary

Published on June 10, 2009        Author: 

Professor Yuval Shany is the Hersch Lauterpacht Chair in Public International Law, Faculty of Law, Hebrew University of Jerusalem. His latest EJIL article, summarised in this post, is available here. His publications include The Competing Jurisdictions of International Courts and Tribunals (OUP, 2003) and Regulating the Jurisdictional Interactions Between International and National Courts (OUP, 2007).

The article assesses some of the theoretical and practical implications arising out of some recent changes in the field of international disputes settlement: the rise in the number of international courts, the expansion of their jurisdictional powers, their increased invocation by state and non-state parties and the growing inclination of national courts to apply international law. Arguably, these cumulative developments herald a qualitative change in the configuration of the field of international dispute settlement. Whereas international law had been applied in the past by judicial bodies on relatively few occasions, the operation of the new international judiciary has been much more “routinized”, and nowadays increasingly resembles the operation of national courts (and, in the same vein, the application of international law by national and international courts increasingly resembles the application of national law by national courts). At a deeper level, one may claim that the operation of the new international judiciary is governed by new ethoi (international norm-advancement and the maintenance of co-operative international arrangements), which is different from the traditional ethos of international courts (conflict resolution).

The second part of the article discusses some of the “blind spots” of the present judicial institutional landscape: a) Jurisdictional gaps – the new courts have been concentrated in a relatively limited number of areas of international relations, mostly appertaining to the protection of basic human rights, some economic relations, and maritime interests. Many other areas of international life of critical importance (such as politically-charged conflicts before international courts relating to war and terror) largely remain outside the compulsory jurisdiction of any international court. What is more, the personal jurisdiction of the new international judiciary is less than universal, and sometimes those very states that are most likely to become involved in conflicts falling under the jurisdiction of the new courts tend to withhold their consent to jurisdiction; b) Enforcement gaps – the increase in the jurisdictional reach of international courts has not been met with a comparable increase in their enforcement capabilities, which would enable courts to effectively carry out their missions. While this may be less of a problem in the economic sphere, (where cooperative regimes typically generate their own incentives to comply), it appears to be a serious obstacle to the smooth functioning of international courts in fields such as criminal law.

 While national courts can, in theory, fill some of these remaining jurisdictional and enforcement gaps, their ability to actually do so remains unclear. Perhaps the combined effect of a more robust ICJ, and more international law-minded national courts, could go some way towards closing the existing gaps in international jurisdictional coverage and enforcement.

 The third and last part of the article addresses in brief some concerns that the emergence of the new institutional judiciary may actually exacerbate: a) coordination problems – the uncoordinated manner in which the new international courts were created, and the specialized character of their jurisdictional structures, generates potential jurisdictional conflicts and introduces tensions that threaten the coherence of the international legal system as a whole; b) effectiveness and perceived legitimacy  – the judicialization of dispute settlement may not always produce better outcomes for the relevant stakeholders, particularly where some of the parties deem the applicable norms to constitute an inadequate basis for a just and comprehensive settlement (without some adjustments). Moreover, one may wonder whether the investment of considerable political and financial resources on the part of the international community in establishing new international courts always represents the most cost-efficient investment of resources.

 The expansion of international courts and international jurisdiction without seriously addressing problems related to their jurisdictional limits, enforcement powers, jurisdictional and normative relations with other bodies, effectiveness and perceived legitimacy may result in a political and legal backlash that would, over time, complicate the mission of international courts. Hence, one of the key challenges in the 21st century for the international judiciary (and the international community on whose behalf it operates) will be to develop legal doctrines, best-practices, and institutional safeguards to address such concerns.

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The European Court on Domestic Violence

Published on June 9, 2009        Author: 

Today the European Court of Human Rights delivered an important judgment dealing with domestic violence in Turkey. The case is Opuz v. Turkey, Application no. 33401/02, 9 June 2009. The Court found violations of Articles 2 and 3 ECHR, because Turkey failed to fulfill its due diligence obligations to do all that it could have reasonably done to prevent the abuse of the applicant by her ex-husband, who also eventually murdered the applicant’s mother, despite being aware of his violent behavior. Bolder still, the Court found a violation of the prohibition of discrimination in Article 14 ECHR, as it established that domestic violence in Turkey was gender-based, and the Turkish authorities failed to suppress an atmosphere conducive of such violence, even if they had no intent to discriminate themselves. The Court awarded the applicant 30.000 euros in damages, a very significant sum in Strasbourg terms, which will hopefully serve as an incentive to Turkey and other states in Europe with similar systemic problems with domestic violence to work on improving their record.

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Africa and the International Criminal Court

Published on June 8, 2009        Author: 

This week African States Parties to the Rome Statute of the International Criminal Court will meet in Addis Ababa, Ethiopia to assess the work of the ICC in relation to Africa. The meeting is significant as all of the current situations and cases under investigation and being prosecuted by the ICC arise from the African continent. The meeting is convened pursuant to a decision of the Assembly of the African Union (Assembly/AU/Dec. 221 (XII), Feb. 2009). According to that decision, the purpose of the meeting is to:

to exchange views on the work of the ICC in relation to Africa, in particular in the light of the processes initiated against African personalities, and to submit recommendations thereon taking into account all relevant elements.

The decision to convene the meeting arises out of concern and in some cases anger following the request for an arrest warrant for President Omar Al Bashir of Sudan (discussed on this blog here, here, here, here and here)  in relation to the situation in Darfur. The organs of the AU and individual African States have expressed deep concern at that indictment arguing that it will undermine the quest for peace in Darfur. Read the rest of this entry…

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Clearing the Fog of War? The ICRC’s Interpretive Guidance on Direct Participation in Hostilities

Published on June 4, 2009        Author: 

On Tuesday (June 2), the ICRC published a document setting out its “Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law.”  The purpose of the document is to help clarify and to assist in the interpretation of a principle which is well accepted in international humanitarian law (IHL) but subject to much ambiguity. This is the principle that civilians are to be immune from direct attacks by the parties to an armed conflict unless the civilian takes a direct part in hostilities. The principle is codified in Article 51(3) of Additional Protocol I (1977) to the Geneva Conventions (1949): “Civilians shall enjoy the protection [from direct attack] . . ., unless and for such time as they take a direct part in hostilities.” The Israeli Supreme Court held in Targeted Killings Case (2005) that this provision in its entirety is a reflection of customary international law (para. 30).  The principle regarding immunity of civilians from attack except in cases of direct participation in hostilities is a key component of the principle of distinction – which requires belligerents to distinguish between civilians and combatants. The principle of distinction and notion of direct participation in hostilities addresses the most most fundamental question in wartime: who can be targeted in an armed conflict? Therefore an attempt to clarify these principles is of great importance and should help in clearing the fog of war?

Despite agreement on the principle that civilians who take a direct part in hostilities are subject to direct attack by the adversary, there has been much difficulty in applying it. Even the basic question of who is a civilian is one where answers have been unclear – particularly in non-international armed conflicts. There is little guidance on what the words “direct participation” mean and on when a person is to be considered as no longer taking a direct part in hostilities so that he again benefits from civilian immunity. It is clear that a civilian who takes up arms and uses it offensively will be taking a direct part in hostilities. It is also certain that the concept of direct participation extends beyond those who bear arms. But how far? Does it extend as far as those who provide logistical support for persons who bear arms or those who provide intelligence? These questions have assumed increased importance in recent years because of the changing nature of armed conflict, and in particular, the increasing involvement of civilians in armed conflict. These changes result partly from the increase in asymetric conflicts with non-State actors but also from the increased use of civilians (eg private contractors) even by States in the general war effort. As a result of these trend it is essential that these questions regarding when civilians may be targeted in war are clarified.

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The Role of Courts in the International Legal System – An EJIL:Talk! Discussion

Published on June 4, 2009        Author: 

Starting next week, EJIL:Talk! will be hosting a discussion of the changing role courts and tribunals in the international legal system. This conversation will be structured around a discussion of two articles in the current anniversary issue of the European Journal of International Law. The articles are: Eyal Benvenisti & George W. Downs, “National Courts, Domestic Democracy, and the Evolution of International Law”  and Yuval Shany, “No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary”. Both are available here.

Participants in the discussion will include, in addition to the authors of the articles, Professor Laurence Helfer (currently Vanderbilt Law School but at Duke Law School from July 2009), Dr Chester Brown (University of Sydney) and Alison MacDonald (Matrix Chambers, London). As always, your comments are very welcome using the comments facility on the site.

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ICRC on Direct Participation in Hostilities

Published on June 3, 2009        Author: 

The ICRC has just published its interpretative guidance on the notion of direct participation in hostilities. This is a product of many years’ work and several consultations with eminent experts – though of course many experts would not agree on all of the ICRC’s conclusions, which are purely the organization’s own. At any rate, since this is one of the most contentious questions of modern IHL, this study will surely be influential and much discussed. I might post some comments on it once I have had the time to read it.

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Peacemaking or Discrimination: Bosnia’s Dayton Constitution before the European Court of Human Rights

Published on June 1, 2009        Author: 

A hearing will be held this Wednesday before the Grand Chamber of the European Court of Human Rights in the case of Sejdic and Finci v. Bosnia and Herzegovina (application nos. 27996/06 and 34836/06) (press release here). A Venice Commission amicus brief is available here. A webcast of the hearing will be available here on Wednesday afternoon.

The applicants are Bosnian nationals, who are respectively Roma and Jewish by their ethnicity. They complain because, despite possessing experience comparable to the highest elected officials, they are prevented by the Constitution of Bosnia and Herzegovina from being candidates for the Presidency and the House of Peoples of the Parliamentary Assembly solely on the ground of their ethnic origins. They invoke, inter alia, Article 14 (prohibition of discrimination) of the European Convention on Human Rights, Article 3 of Protocol No. 1 to the Convention (right to free elections) and Article 1 of Protocol No. 12 to the Convention (general prohibition of discrimination).

In brief, the Dayton settlement of the Bosnian conflict divided some of the institutions of the state government by ethnicity, so that the three member Presidency must be comprised of one each ethnic Serb, Croat and Bosniak/Bosnian Muslim. Further, one chamber of the Bosnian parliament, the House of Peoples, is comprised of 15 members, 5 of whom have to be from each of the three ‘constitutive’ peoples. The two applicants thus complain that, being Roma and Jewish respectively, they cannot stand for election for either the Presidency or the House of Peoples. In their view, this is clearly prohibited discrimination on grounds of ethnicity.

It is very likely that this will be the first case that the European Court will decide on the merits on the basis of Protocol 12, which introduced a general prohibition of discrimination into the ECHR system. Prior to that, the prohibition of discrimination in Article 14 was only of accessory character, meaning that the legal right or interest in respect of which discrimination was being alleged had to fall within the scope of one of the ECHR provisions. The relevance of this limitation is apparent from the instant case – Art. 3 of Protocol 1 to the ECHR only guarantees the right to vote and to stand for election for a legislature – but the Presidency of Bosnia and Herzegovina is not a legislature. Art. 14 could thus not be invoked in this regard, but Protocol 12 could be, because it sets out a general prohibition of discrimination, in respect of any right set forth by (domestic) law.

As far as the merits of the discrimination claim are concerned, the Court has in its Article 14 jurisprudence established that discrimination constitutes (1) a difference in treatment of persons or groups who are in a similar situation, (2) that has no objective and reasonable justification. In order for there to be such a justification, the treatment concerned must (a) be implemented for the pursuance of a legitimate aim, and (b) must be proportionate to that aim. Further, some grounds of distinction, such as ethnicity, race or gender, are by their very nature suspect, and particularly weighty reasons would have to be adduced by a state to justify them.

If we applied the Court’s test to the present case, there would undoubtedly be a difference in treatment on grounds of ethnicity (1). When it comes to the question whether there is a justification for such differential treatment, there would again undoubtedly be a legitimate aim for it (2(a)) – the establishment and maintenance of peace in post-conflict Bosnia. The question to be decided by the Court, therefore, is whether this distinction is proportionate to that aim (2(b)).

How the Court is going to answer this question is anyone’s guess. Aside from the general problem of commensurability that is inherent in all balancing tests, the proportionality inquiry in the present case clearly requires a value judgment. On the one hand, every liberal atom of one’s being cries out against discrimination based on ethnicity. On the other, there is the indisputable fact that Bosnian society is still markedly divided on ethnic lines (which, of course, measures like the ones above serve to both control and perpetuate). Then there is the whole question of whether an international court sitting in Strasbourg is best called upon to make this value judgment, or whether that judgment should still, for the time being at least, be the province of (what goes for) democratic political process in Bosnia.

At any rate, this is a case to watch.

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ICJ Denies Belgium’s Request for Provisional Measures in the “Prosecute or Extradite” Case

Published on May 29, 2009        Author: 

Joanna Harrington is an Associate Professor with the Faculty of Law at the University of Alberta in Canada, where she teaches constitutional law, international law, and international criminal law. Her scholarship often examines the interplay between international human rights law and criminal law, and international law and constitutional law in general. She has written previously on matters of interim measures, arguing for the application of the ICJ’s jurisprudence to requests arising within the context of communications before the international human rights treaty monitoring bodies: see “Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee and Requests for Interim Measures of Protection” (2003) 48 McGill LJ 55.

 I wish to thank Dapo Akande, the editor of EJIL Talk!, for the invitation to express my initial (and perhaps hasty) thoughts on yesterday’s decision by the International Court of Justice (see here) concerning Belgium’s request for the indication of provisional measures in the proceedings lodged against Senegal concerning the “obligation to prosecute or extradite” Hissène Habré, the former President of Chad (1982-1990), for the commission of serious international crimes, including crimes of torture and crimes against humanity.[1] Habré has been living in Senegal since he was overthrown in 1990; however, in light of recent statements made by the Senegalese head of state intimating that Habré may be allowed to leave the territory,[2] Belgium sought an order from the ICJ requiring Senegal to ensure that such a departure did not occur. Senegal opposed Belgium’s request, challenging Belgium’s interpretation of the statements made by its President as well as the general admissibility of Belgium’s case, while also arguing that such an order was not needed given the existing controls concerning Habré. By 13 votes to one, the Court declined to make the requested order, finding that:

“the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.”[3]

 A key factor contributing to the Court’s decision were the solemn assurances provided by Senegal, both on its own initiative and in response to a direct question put by a Member of the Court during the hearings, that it will not allow Habré to leave its territory before the Court has given its final decision.[4] Credit goes to Judge Greenwood, a recent appointment to the Court, for asking Senegal at the end of the first round of the oral observations whether it would be prepared to give a solemn assurance to the Court that it will not allow Habré to leave while this case is pending.[5] Although Senegal had said as much in its submissions, the question prompted Senegal to solemnly confirm in its closing statement to the Court that:

“Senegal will not allow Mr. Habré to leave Senegal while the present case is pending before the Court. Senegal has not the intention to allow Mr. Habré to leave the territory while the present case is pending before the Court.”[6]

 With this solemn declaration, the denial of Belgium’s request for the indication of provisional measures was a likely result, notwithstanding Belgium’s efforts to suggest that a “clear and unconditional” assurance “could be sufficient” but the need for certain “clarifications” made an order from the Court preferable.[7] The ICJ’s decision may thus be viewed as a non-result in terms of the actual request that was put before the Court, and the fact that the parties were generally in agreement as to the law governing the indication of provisional measures. Nevertheless, the reasoning behind the Court’s order is worth consideration, as are the issues raised in the relatively lengthy dissent of Judge Cançado Trindade, another new appointment to the Court.

 The Existence of a Dispute and the Involvement of the African Union

In addressing a request for the indication of provisional measures, the Court must first satisfy itself that it has prime facie jurisdiction as regards the merits of the case. Read the rest of this entry…

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Professor Thomas Franck Passes Away

Published on May 29, 2009        Author: 

The news of Tom Franck’s death (see here and here) must sadden us all.  Our community of international lawyers has lost one of its greatest scholars.  We have also lost a mentor, and a dear friend.

Readers may be interested in a 2002 EJIL Symposium containing a series of essays which evaluate Franck’s Fairness in International Law and International Institutions (1995)

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