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EJIL:Talk! Discussion on the Use of Force

Published on September 2, 2009        Author: 
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Over the next couple of weeks, we will be hosting a discussion of articles in the latest issue of the European Journal of International Law. As readers will know, this year marks the 20th Anniversary of EJIL and each issue of the journal includes a symposium on selected areas of international law. In the latest issue (issue 2), there is a symposium on the Use of Force.  EJIL:Talk! will host an online discussion of three articles in that symposium. Next week we will discuss Christian Tams’ article “The Use of Force Against Terrorists”. We will then host discussions of Ken Anderson’s piece “The Rise of International Criminal Law: Intended and Unintended Consequences” and Dino Kritsiotis’ article: “Close Encounters of a Sovereign Kind”. All of these articles will be freely available on EJIL.org and on the OUP EJIL site.

Professor Joseph Weiler’s editorial for this issue of EJIL points out that:

Dino Kritsiotis of the University of Nottingham and Ken Anderson from American University in Washington DC may have taken on classical topics – but fasten your seat belts and prepare yourself to be challenged. Christian Tams from Glasgow and Tullio Treves of Milan (who serves, too, as Judge of the International Tribunal for the Law of the Sea) deal with the less classical: the use of force in fi ghting terrorists and pirates respectively. Keep those seatbelts fastened. We were not interested in the ‘ Law as it Stands ‘ style pieces. These are all pieces with a view, with a thesis. We expect some disagreement.

EJIL:Talk! is precisely the forum where we expect some of that disagreement to emerge and different points of view to be thrashed out. Commentators on the EJIL pieces will include Kimberley Trapp (University of Cambridge), Gerry Simpson (the London School of Economics and the University of Melbourne), Brad Roth (Wayne State University) and Nikolas Stürchler (Ministry of Foreign Affairs, Switzerland and author of The Threat of Force in International Law).

As always readers are invited to participate in this discussion by posting comments.

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The Taliban’s New “Code of Conduct”, Compliance with the Laws of War and POW status

Published on August 31, 2009        Author: 
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After an absence of a couple of weeks and a summer silence on this blog, we are back.  I’ve got a bit of catching up to do. I want to spend the next couple of days discussing some legal issues arising from recent media reports about the war in Afghanistan. Later this week, I will write about US targetting of drug traffickers in Afghanistan with links to the Taliban. Today I wish to address reports (see here, here and here) indicating that Taliban’s leaders have issued a handbook containing a code of conduct for its fighters. In particular, I am interested in how this issuance of such a “code of conduct” may affect the determination of prisoner of war status in international armed conflicts.

According to FoxNews:

The handbook – written in Pashto and obtained through U.S. military sources – is entitled “Afghanistan Islamic Emirate Rules and Regulations,” and it is addressed to the “Mujahideen Pashto,” or Taliban commanders. Written on May 9 in Kandahar, the birthplace of the Taliban, it characterizes the Taliban’s fight as a “jihad” that can be achieved only if “it is done according to the framework of the established rules and regulations.”

Apparently, part of the purpose of the code of conduct is to win hearts and mind. It is significant that this new code departs from an earlier 2006 code  and contains rules which are similar to rules that exist in international humanitarian law (IHL). For example,while the previous code had explicitly sanctioned  the killing of teachers who instruct contrary to Islamic principles, the new code attempts to reflect the prohibition of targetting civilians and civilian objects. While suicide attacks are not prohibited,

“Suicide attacks should be at high value and important targets because a brave son of Islam should not be used for low value and useless targets,” the code of conduct said. “In suicide attacks the killing of innocent people and damage to their property should be minimized.”

It also says “all mujahideen must do their best to avoid civilian deaths and injuries and damage to civilian property.” And it says that mujahideen “should refrain” from disfiguring of people, such as the severing of ears, nose and lips.

US and Afghan officials have argued that the document is hypocritical, since the majority of civilian deaths in Afghanistan are caused by the Taliban. They also argue that the document is mere propaganda. Its more difficult to see how the document could merely be propaganda as it appears not to have been publicised by the Taliban and had been issued for a few months before it was discovered by the media.

The issuance of the document by the Taliban has a number of implications under IHL. It is interesting to consider whether the issuance of the document would have made any difference to the status of Taliban fighters had it been issued at the time when there was an international armed conflict in Afghanistan (which is no longer the case). The Bush administration argued (see here) that Taliban fighters were not entitled to POW status under the Third Geneva Convention (1949) dealing with Prisoners of War (GCIII)  because the Taliban did not fulfill the conditions of Article 4(A)2 of GCII. Art. 4(A)2 deals with the conditions that irregular forces engaged in an international armed conflict must meet in order to be entitled to POW status. Although the Taliban were the regular armed forces, it is generally accepted that some of the conditions in Art. 4(A)2 also apply to regular forces, though this is not explicitly stated in GCIII. Read the rest of this entry…

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Sixty Years of the Geneva Conventions

Published on August 12, 2009        Author: 
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On 12 August 1949 the four Geneva Convention were opened for signature. They, as we know, form the bedrock of what came to be known as international humanitarian law. They are also, to my knowledge, the first treaties ever that have become truly universal, meaning that all states in the world are parties to them (well, at least all states whose statehood is generally undisputed). The ICRC will mark the occasion with several events (more here and here).

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Report on UK Complicity in Torture

Published on August 5, 2009        Author: 
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On Tuesday the Joint Parliamentary Committee on Human Rights published its report on allegations of UK complicity in torture. I would particularly like to draw our readers’ attention to the Committee’s legal analysis of the scope of the UK’s obligations as a matter of two treaties, the UN Convention against Torture and the European Convention on Human Rights, at para. 17 ff.

Though I am in broad agreement with the Committee’s observations, I am somewhat troubled by the emphatic nature of their conclusion that

There is therefore no room for doubt, in our view, that complicity in torture would be a direct breach of the UK’s international human rights obligations, under UNCAT, under customary international law, and according to the general principles of State Responsibility for internationally wrongful acts.

The Committee’s analysis does tend to paper over a number of very complex issues. For instance, the text of the UNCAT does not explicitly provide for a state obligation not to commit torture or not to be itself complicit in torture. Rather, it (1) provides for a positive obligation of states to prevent acts of torture within territories under their jurisdiction (Art. 2), and for a (2) positive obligation to criminalize acts of torture committed by individuals (Arts. 4 & 5). A negative obligation, and consequent state responsibility for the internationally wrongful act of torture committed by an individual whose actions are attributable to the state, is not written in the treaty. It can only be inferred from it by implication, much in the same way as the ICJ in the Bosnian Genocide case inferred a negative state obligation not to commit genocide through its organs or agents from a similarly worded treaty, the Genocide Convention.

Second, in regard of the CAT, but even more in regard of the ECHR, there is the problem of the extraterritorial application of the treaties. For instance, it is far from clear under the existing jurisprudence of the European Court (above all Bankovic) that the UK would bear state responsibility even if one of its own agents actually tortured a person held by Pakistani authorities in Pakistan (or wherever), let alone so if the UK was ‘merely’ assisting a Pakistani torturer.

Third, there is some degree of conceptual confusion in the Committee’s report between complicity as a notion of (domestic or international) criminal law applicable to individuals, and complicity as a matter of state responsibility, as set out in Article 16 ILC ASR. (Much of the same confusion was evident in the Bosnian Genocide case, on which see more here, at 680 ff). Just to give one example, Article 16 could in no way be applied to the ECHR for torture done in, say, in Pakistan or Uzbekistan, because these two states are not parties to the ECHR, and Article 16(b) requires that both the state committing an act and the state complicit in the act share the same legal obligation. It is only if Article 3 ECHR was interpreted as setting out a distinct wrongful act of state complicity in torture that the UK could be responsible, and there is no case law directly on point – and again, there is also the Article 1 jurisdiction issue.

Having said this, of course, the Committee is a political, not a judicial body, and it can’t be expected to cover all the nuances in a legal question. It will hopefully thus manage to serve its main advocacy purpose of putting further pressure on the government to disclose some of its more nefarious dealings. If, however, a case of UK complicity in an extraterritorial act of torture were to be actually litigated, particularly before the European Court, it would be far from free of any doubt.

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The International Minimum Standard and Investment Law: The Proof is in the Pudding

Published on August 3, 2009        Author: 
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A             Background

Fair and equitable treatment provisions are found in almost all bilateral and multilateral investment treaties and many international investment agreements. Throughout the course of the last decade, this treatment standard has been frequently invoked in investor-State arbitrations. Under its aegis, tribunals have developed a number of vaguely defined sub-categories, or what have been referred to as ‘facets’ or ‘components’ of the standard, such as the obligation of the State to refrain from acting in an arbitrary manner, to afford justice and due process to foreign investors, to act transparently, and to respect the legitimate expectations of the investor (see comment entitled ‘Fools Gold? Legitimate Expectations as Understood in Glamis Gold v USA). Despite such attention, the precise application of and relationship between these components remains vague and elusive.

The task of interpreting and applying fair and equitable treatment was made more complex by the following series of events.

In 1999, an American investor brought a claim under NAFTA‘s investor protection provisions. The investor alleged, inter alia, that Canada’s regulations with respect to the importation of softwood lumber violated Article 1105 of NAFTA. Article 1105(1) provides that ‘Each Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security.’ At the time of the arbitration, trends in the decisions of arbitral tribunals favoured interpreting fair and equitable treatment provisions as either an autonomous treaty provision or a standalone principle found in customary international law. The tribunal favoured the former, finding for the investor, but leaving the question of damages to be assessed at later date by a new tribunal.

Following the decision, and in a dramatic twist, the NAFTA parties issued a joint interpretive note clarifying their view of both Article 1105, and fair and equitable treatment and full protection and security. The note read as follows:

Read the rest of this entry…

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The Law Lords’ Final Judgments

Published on July 31, 2009        Author: 
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Yesterday the House of Lords delivered its last judgments as the final court of appeal in England and Wales. For many, many, many years (as with all thing English), the House of Lords had a dual function, sitting as both a part of the legislature and the judiciary. From 1 October this year, the new Supreme Court of the United Kingdom will be sitting on Parliament Square, comprised of twelve current Lords of Appeal in the Ordinary.

Among the various domestic high courts, the Law Lords were probably without peer in their application of international law, particularly human rights law. It is thus fitting that they went out with a bang, rather than a whimper. Among their final judgments is Purdy v. DPP, where their Lordships unanimously held that the Director of Public Prosecutions (who as in other common law system has a discretion, rather than an ex officio duty to prosecute), had to publish a clear statement of policy as to when and under what circumstances he would prosecute persons assisting their terminally ill loved ones in going to a clinic in Switzerland to obtain euthanasia. Their Lordships based their decision on the legal predictability requirement under Article 8 of the European Convention on Human Rights.

In parting, one could only say that if some of the other European states (you know who they are) had a judicial system that was even only half as effective as is the English judiciary, and the House of Lords in particular, in the protection of individual rights under the Human Rights Act (and make no mistake about it, the HRA was truly a moment of fundamental constitutional change in the UK, requiring an enormous amount of adjustment and good will from the judiciary), then the case load of the Strasbourg Court would not be as unmanageable, nor would there be all the Protocol 14s, 14bis and other restrictions on the right of individual petition, which are ultimately only stop-gap measures that lead to nowhere. Nor would, for that matter, the Court itself be the bloated, bureaucratic, basically almost entirely Registry-run institution that it is today. (As the readers might have guessed, I have a truly Kafkian horror story or two to tell in regard of a client that I’ve represented, but I’ll refrain from doing so to avoid the stereotype of a complaining loser).

Anyway, as the saying goes, nothing lasts forever…

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Ecuador Denounces ICSID: Much Ado About Nothing?

Published on July 30, 2009        Author: 
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Much has been made of Ecuador’s recent withdrawal from the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (‘ICSID’). The notice has the effect of terminating the jurisdiction of the Centre effective 7 January 2010. The most reported justification for this move is the perception in many Latin American countries that international investment arbitration is biased towards investors (see comment entitled ‘International Investment Arbitration: Poisoned at the Root?‘), and more specifically, outstanding international investment claims against Ecuador in the range of $10 to $12 billion US.

However, on review of Ecuador’s international legal position, and, more specifically, international legal obligations generated by her outstanding bilateral investment treaties, it seems that withdrawal from ICSID, whilst perhaps remaining a poignant political statement, offers less than might first be thought in terms of radical change with respect to the country’s exposure to investment claims.

Read the rest of this entry…

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Fools Gold? Legitimate Expectations as Understood in Glamis Gold v USA

Published on July 29, 2009        Author: 
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The recent decision of Glamis Gold v USA constitutes a leap forward in the articulation of norms of international investment law.  Paragraphs 1 through 9 contain an admirable description of the role of ad-hoc international investment tribunals in the determination of claims, a description that is articulate, precise, accurate and well measured. Such a development is to be welcomed, and was much needed. However, in addition to this, the decision is notable in its contribution to the development of the doctrine of legitimate expectations in the context of international investment law.

The obligation on the host State to respect the legitimate expectations of the investor constitutes what has been variously referred to by tribunals as a ‘facet’, ‘component’, or ‘sub category’ of the fair and equitable treatment provision commonly found in a number of bilateral and multilateral investment treaties. This provision has been elaborated by international investment tribunals over the course of the last four decades, and, in addition to legitimate expectations, has been found to include an obligation to not act in an arbitrary manner, to afford justice and due process to foreign investors, and to act transparently.

In Glamis, the investor argued that a violation of NAFTA’s fair and equitable treatment provision (Article 1105) had been occasioned by the failure of the United States (through its competent agencies) to respect its legitimate expectations. Ultimately, the Tribunal concluded that the claim was not made out. In reaching this conclusion, it introduced two interesting developments to the debate:

(1)    an unambiguous statement that legitimate expectations can only be based on a ‘quasi-contract’; and
(2)    the suggestion that expectations can be reasonable but not legitimate.

This comment will both outline and consider these two developments. Read the rest of this entry…

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EJIL:Talk! Welcomes Tolga Yalkin as Guest Blogger

Published on July 28, 2009        Author: 
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We are happy to announce that over the next few days Tolga Yalkin will be posting on EJIL:Talk! a series of pieces dealing with aspects of international investment law. Readers will remember that, last month, Tolga posted a piece on EJIL:Talk! titled “International Investment Arbitration: Poisoned at the Root?”  (which was discussed over at Opinio Juris)

Tolga is a graduate student at the Faculty of Law, University of Oxford and is the President of Oxford Pro Bono Publico, a public interest law program of the Oxford Law Faculty. His Oxford thesis considers the international minimum standard of treatment in international investment law.

 

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Who Uses the European Court of Human Rights, and Who Wins? Evidence from New Studies

Published on July 27, 2009        Author: 
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Gabriel Swain is Research Associate, School of Social Policy, Sociology and Social Research, University of Kent.  Previously, he worked as a researcher for the Council of State Governments, a US-based public policy think tank, where he wrote on topics including climate change, natural resource policy, energy policy and federalism.

The margin of appreciation doctrine of European Court of Human Rights (ECtHR) gives states flexibility in their interpretation of the European Convention on Human Rights (the Convention). States also have the freedom to decide how they implement judgments finding violations against them. This means that individuals in each Council of Europe (CoE) member state experience rights protection and abuse in often quite different ways. The JURISTRAS project, which began in 2006 with a grant from the EU Sixth Framework Programme, has sought to shed light on that variation by analyzing the various relationships between the ECTHR and domestic human rights actors (both governmental and non) in CoE member states.

 Our research initially focused on the protection of the core civil liberties (i.e. ECtHR Articles 8-11 & 14: right to private and family life; freedom of thought, conscience and religion; freedom of expression; freedom of association; freedom from discrimination), but was expanded to include any situation in which an individual’s inclusion in a minority or vulnerable group caused her rights to be infringed. Research questions that drove the initial research design included:  How are judgments that find a country in violation of the Convention implemented in that country? What factors influence the effectiveness and speed of judgment implementation? Which groups have experienced rights abuses in the most direct ways? Which groups, if any, have been able to use the ECtHR as a tool, and have litigated strategically in order to bring about policy reform?

 A number of interesting issues arose with an analysis of the United Kingdom’s protection of the rights of minority and other vulnerable groups. Perhaps most interesting is the extent to which various groups are (or are not) successful in winning cases, which factors contribute to that success, and which groups are likely to see violations translated into policy reforms that favour their group’s interests, and why. There is a substantial variation in the answers to those questions, and to highlight the difference and help explain the reasons behind it, we can first look at cases brought against the UK by homosexuals and transsexuals, who have managed to use the Court to change discriminatory policies that directly affect them. We can then turn our attention to victims of wrongful death and illegal imprisonment in Northern Ireland and gypsies in the UK as examples of groups that have been largely unsuccessful at utilizing the Court to their advantage. Read the rest of this entry…

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