magnify

Turkey, Aggression, and the Right to Life Under the ECHR

Published on October 21, 2019        Author: 
Sharing:
onpost_follow

Turkey’s latest invasion of Syria violates the prohibition of interstate armed force. It cannot be justified by Turkey’s right of self-defense (see here and here). What follows? Among other things, each and every person killed by Turkish forces and agents is killed in violation of her human right to life. Every civilian killed in violation of international humanitarian law. Every combatant or fighter killed without violation of international humanitarian law. Everyone. Let me explain.

The International Covenant on Civil and Political Rights provides that “No one shall be arbitrarily deprived of his life.” According to the Human Rights Committee’s General Comment No. 36 on the right to life, “[d]eprivation of life is, as a rule, arbitrary if it is inconsistent with international law.” It follows that “States parties [to the Covenant] engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant.” This much is well known.

The European Convention on Human Rights provides that “[n]o one shall be deprived of his life intentionally” except in cases of capital punishment or when absolutely necessary to defend a person from unlawful violence; to effect a lawful arrest or prevent the escape of a person lawfully detained; or to quell a riot or insurrection. It follows that States parties to the Convention engaged in acts of aggression as defined in international law, resulting in intentional deprivation of life, violate ipso facto article 2 of the Convention. I am told this is less well known. Read the rest of this entry…

Print Friendly, PDF & Email
 

Announcements: Lecture in Immigration Law on Migration as Decolonization; The Changing Character of International Dispute Settlement; 2020 NILOS Moot Competition; Vacancy at The Fletcher School of Law and Diplomacy at Tufts University; UN Audiovisual Library of International Law; Three Fellowships with the Berlin Potsdam Research Group

Published on October 20, 2019        Author: 
Sharing:
onpost_follow

1. Annual Lecture of the LLM in Immigration Law on ‘Migration as Decolonization’. The Centre for European and International Legal Affairs (CEILA) and the School of Law are delighted to host the Annual Lecture of the LLM in Immigration Law on ‘Migration as Decolonization’, with Professor E. Tendayi Achiume (UCLA School of Law), UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance. The lecture will take place on Tuesday, 5 November, 6pm – 8pm at Lecture Theatre, Arts Two, Queen Mary University of London. The event is free of charge, but registration is required.

2. The Changing Character of International Dispute Settlement. The Sheffield Centre for International and European Law at the University of Sheffield, with the support of the Society of Legal Scholars, is hosting a one-day conference with leading academics and practitioners on 6 December 2019. The conference takes stock of the expansion of the system of international dispute settlement (IDS) and the risks of fragmentation stemming from the multiplication of IDS institutions with overlapping competences. It explores opportunities for the development of IDS in new fields such as cyber law and space law. In the face of the resurgence of isolationism and protectionism, it also questions whether existing IDS mechanisms have the legitimacy to deal with issues involving public interests, such as health, environment, and human rights. For the full programme and registration, please see here

3. 2020 NILOS Moot Competition. The Netherlands Institute for the Law of the Sea (NILOS) is very happy to announce that the 2020 Case for the NILOS Moot Competition is now available online.  The deadline for team registration is 15 November 2019. The registration form will soon be available. The schedule of the 2020 competition and a full report of the 2019 Inaugural edition are also available. Please contact here if you have any further question. The event will take place in Utrecht in May 2020.

4. Vacancy at The Fletcher School of Law and Diplomacy at Tufts University. The Fletcher School of Law and Diplomacy at Tufts University seeks to fill a full-time faculty position in international human rights law at the assistant professor or associate professor level.  Full details available here. Closes 30 November 2019 at 11:59 PM Eastern Time (GMT-4 hours). Read the rest of this entry…

Print Friendly, PDF & Email
Filed under: Announcements and Events
 

The Human Cost of Using Informers in Conflict and the Ambivalence of International Law

Published on October 17, 2019        Author: 
Sharing:
onpost_follow

In early October, the Guardian reported that former members of the IRA and British Army commanders may face criminal charges arising from serious offences connected with the use of informers for the purpose of gathering intelligence during the conflict in Northern Ireland. As part of the police inquiry ‘Operation Kenova’, files have been sent to the Public Prosecution Service in Belfast providing evidence of crimes of “murder, kidnap, torture, malfeasance in a public office and perverting the course of justice” associated with the activities of alleged former head of internal security for the IRA and British army agent Freddie Scappaticci.

Scappaticci is said to be linked directly to some 18 murders of IRA members accused of being informers. The families of a number of those killed have made formal complaints to the Police Ombudsman of Northern Ireland claiming that his military intelligence handlers failed to prevent those killings. Even more than the trial of “Soldier F” for two murders arising from Bloody Sunday in 1972, such proceedings could shine an uncomfortable light on how the dirty war was waged by state authorities in Northern Ireland. It also prompts the question of how law addresses the practice of using informers during conflict. 

The use of informers within non-state armed groups by British military, police and security forces was a common practice during the conflict in Northern Ireland. It is estimated that the IRA executed around 85 individuals accused of being informers during the course of the Troubles. Such practices are not unprecedented, as the recruitment and deployment of informers has been a perennial feature of armed conflicts, not to mention the frequently brutal treatment that has usually been meted out to such collaborators. As has been the case with the Scappaticci affair, authorities have at times gone to great lengths to secure and retain the services of high-level informers, including by tolerating or acquiescing in their involvement in criminal activities.

In terms of the law applicable to the use of informers, very often there has been limited or no national legislation governing the use of so-called covert human intelligence sources. The Chief Constable of the Police Service of Northern Ireland George Hamilton has acknowledged that in the context of the Troubles, “[t]here were no rules. There was no regulatory framework for handling of informants at that time”. Given the regularity of the practice during situations of armed conflict, it is appropriate to consider how applicable international law might be addressed to the deployment of informers, as well as its consequences.

On its face, international law applicable to armed conflict, including both international humanitarian law and international human rights law, has little to say about the use of informers. Read the rest of this entry…

Print Friendly, PDF & Email
 

Could International Law Stop a No-Deal Brexit?

Published on October 16, 2019        Author: 
Sharing:
onpost_follow

At the time of writing – less than 3 weeks until the current ‘Brexit day’ of 31 October 2019 –  all options relating to the UK’s departure from the European Union appear to be on the table. Leaving with a deal, ‘crashing out’, not leaving at all, or anything in between seem equally possible. Much attention has been paid to the UK’s constitutional requirements governing the executive’s actions in relation to Brexit, as well as the domestic legal consequences of flouting them. The possibility of Prime Minister Johnson going to jail for violating these requirements has even been considered. However, not much has been said about the potential international law consequences. Here I explore whether international law could prevent a No-Deal Brexit – or, more precisely, whether a failure to comply with domestic constitutional requirements may prevent the UK’s withdrawal from the EU from taking effect in international law. This discussion draws on my recent work exploring the role of domestic law in the international legal validity of treaty withdrawal more generally.

The starting point for this discussion is Article 50 of the Treaty on European Union (TEU) – by now, likely the most famous treaty exit clause in legal history. Art 50 states, in part:

  1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

  2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. …

  3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

For our purposes,  Art 50(1) is the key provision. This, unusually, makes the triggering of withdrawal from the EU explicitly contingent on compliance with the State’s domestic constitutional requirements.  Thus, in principle, if there is a failure to comply with those constitutional requirements, the decision to withdraw is invalid according to the TEU. In the 2018 Wightman decision, the ECJ affirmed that “the decision to withdraw is for that Member State alone to take, in accordance with its constitutional requirements, and therefore depends solely on its sovereign choice” (at para. 50).

While a full dissection of the UK’s constitutional requirements for leaving the EU is not possible here, there are two clear domestic law limitations constraining the UK executive’s prerogative in relation to Art 50. Read the rest of this entry…

Print Friendly, PDF & Email
 

Abuse of Process and Abuse of Rights Before the ICJ: Ever More Popular, Ever Less Successful?

Published on October 15, 2019        Author: 
Sharing:
onpost_follow

Abuse of process and abuse of rights objections seem to have become increasingly popular in cases before the ICJ. While acknowledging that the two concepts have much in common, the Court has distinguished between them by noting that ‘abuse of process’ relates to judicial proceedings and is a preliminary issue that may bar admissibility, while ‘abuse of rights’ relates to the merits, as it ‘cannot be invoked as a ground of inadmissibility when the establishment of the right in question is properly a matter for the merits’ (Equatorial Guinea v. France, paras. 146, 150-151). Simply put, as a general rule, abuse of process relates to the manner of initiating (and conducting) proceedings, while abuse of rights relates to the substance of the dispute.

This apparent trend is taking place despite the fact that the Court almost invariably denies such objections (as in Certain Phosphate Lands in Nauru, paras. 37-38 and Border and Transborder Armed Actions, para. 94). It has repeatedly noted (as in Equatorial Guinea v. France, para. 150; Certain Iranian Assets, para. 114; and Jadhav, para. 49) that an abuse of process plea could only be upheld in ‘exceptional circumstances’. In some instances, the ICJ deferred the issue to a later stage of the proceedings (as in Qatar v. UAE, para. 39 and Equatorial Guinea v. France, para. 151).

In recent ICJ case law, relying explicitly or implicitly on the principle of good faith, parties have accused each other of abuse of process or rights in a range of circumstances. For example, abuse was alleged when two proceedings in relation to the same object were started in Qatar v. UAE; when there was an alleged violation of the dispute settlement mechanisms provided for in the treaty in Qatar v. UAE and Jadhav; when the relief sought was unavailable under the treaty in Equatorial Guinea v. France and Jadhav; and when there was an alleged incompatibility between the application and the object and purpose of the treaty in Certain Iranian Assets and Jadhav. Read the rest of this entry…

Print Friendly, PDF & Email
 

A Collective Failure to Prevent Turkey’s Operation ‘Peace Spring’ and NATO’s Silence on International Law

Published on October 14, 2019        Author: 
Sharing:
onpost_follow

Since last week Turkey has been using massive military force in Syria. Turkey has decided to call her military operation ‘Peace Spring’. ‘Peace Spring’ seems to be even more extensive than ‘Olive Branch’, Turkey’s preceding invasion of Syria. ‘Peace Spring’ has already resulted in the flight of tens of thousands of civilians. Worldwide, observers fear that ‘Peace Spring’ could lead to a humanitarian catastrophe in Syria, a country whose people have been suffering from unspeakable pain for many years now. There is also widespread fear that the so-called ‘Islamic State’ could benefit from ‘Peace Spring’ as the use of force is being directed against precisely those Kurdish forces that had helped keeping the ‘Islamic State’ at bay. It thus appears that a depressingly large number of indications suggest that the name ‘Peace Spring’ is a cynical euphemism for a brutal military course of action possibly ending in a bloody disaster.     

In her letter to the United Nations, Turkey invokes her right of self-defence, as recognized in Article 51 of the UN Charter, ‘to counter’ an ‘imminent terrorist threat’. The ‘facts’ that Turkey refers to in this letter are essentially those:

‘In particular, PKK/PYD/YPG units close to Turkish borders in the north-east of Syria, continue to be a source of direct and imminent threat as they opened harassment fire on Turkish border posts, by also using snipers and advanced weaponry such as anti-tank guided missiles.’

Under international law, the right of self-defence exists if an armed attack against another State occurs. In such a case, cross-border defensive forcible action is permissible to the extent that the action is necessary and proportional to counter the attack. The existence of a right of anticipatory self-defence has long been controversial. An arguable case can be made that such a right exists if an armed attack against a State is imminent. It is also a matter of fierce debate whether a right of self-defence exists in case of a non-State armed attack and whether it may justify forcible defensive action on the territory of another State. An arguable case can be made that such a right exists where a State is either unwilling or unable to prevent a non-State group from conducting a large-scale cross-border armed attack from the territory of that State – under strict conditions of proportionality.

Even on the basis of such a broad understanding of the right of self-defence, which is being fiercely rejected by a significant number of States and by a significant number of highly respected international lawyers as being unduly permissive, it is impossible to see how Operation ‘Peace Spring’ could be justified under international law. Read the rest of this entry…

Print Friendly, PDF & Email
 

Announcements: Ghandhi Research Seminar Series; The Current Crisis in Nuclear Arms Control Law; CfP Palestine Yearbook of International Law; Blockchain, Law and Governance Conference

Published on October 13, 2019        Author: 
Sharing:
onpost_follow

1. Ghandhi Research Seminar Series. Global Law at Reading (GLAR) is delighted to unveil the programme for the 2019/20 Ghandhi Research Seminar Series. The series showcases the work of experts in global law fields. It is convened this year by Dr Marie Aronsson-Storrier and Matthew Windsor, and is named in honour of Professor Sandy Ghandhi, who taught at the School of Law from 1978 to 2013. Anyone is welcome to attend these seminars, and attendance is free. However, visitors coming from outside the University of Reading are kindly asked to send advance notification that they will be attending: m.r.windsor {at} reading.ac(.)uk.

2. Lecture on The Current Crisis in Nuclear Arms Control Law. In this lecture, hosted by University of Westminster, Professor Joyner will discuss the current crisis in nuclear arms control law and its implications. The lecture will take place on 7 November 2019 in London, from 6.30 – 7.30pm. For more information, see here

3. Palestine Yearbook of International Law – Call for Papers.  The Palestine Yearbook of International Law (PYBIL) has opened an invitation for an additional round of submissions for Volume XXII. We welcome general submissions related to public international law. We are interested in particular in critical approaches to international law, and welcome submissions in relation to Palestine. This peer-reviewed volume would include articles, case commentaries, and book reviews. Deadline for submissions is 30 November 2019. The full call for papers can be found here

4. Good For all: Towards a Paradigm Shift – Blockchain, Law and Governance Conference. This conference will take place on 25 – 26 October 2019 at Milan, Università degli Studi, Sala Napoleonica, Via Sant’Antonio 12. The overall topic discussed throughout the conference is blockchain in a legal perspective. As never before, this new technology requires us to take a multidisciplinary approach. Indeed, enactment of new laws cannot ignore an understanding of how the technology works. Accordingly, workshops and parallel practical sessions will be offered to allow those who are interested to gain knowledge of what there is behind a blockchain node. The common thread throughout the conference will be a look at technology without fear and with the aim to understand it and to better grasp positive effects that can derive from it. For this reason, some sessions will be devoted to blockchain sustainable projects in application. For further information, see here

Print Friendly, PDF & Email
Filed under: Announcements and Events
 

The Implementation of Judgments of the European Court of Human Rights: Worse Than You Think – Part 2: The Hole in the Roof

Published on October 8, 2019        Author: 
Sharing:
onpost_follow

Part 1 of this blog post addressed the current narratives concerning the implementation of ECtHR judgments. Part 2 below attempts to set out what the current state of implementation might really be.

Imagine you are told that there is a hole in the roof of your house. You go out to buy the materials to fix it, come home and begin work. However, half-way through the repairs you realise that the hole is far larger than you thought. It turns out that you do not have enough materials to mend it properly.

If we are not careful, this is what is going to happen with the challenge of non-implementation of ECtHR judgments and the response that is made towards it in the next era of the Convention system. The scale of the problem is being underestimated – so there is a serious danger that the response will be insufficient. The scale of non-implementation can be demonstrated by looking at the best metrics available to assess the issue.

Overall judgments vs. Leading judgments

The number of overall pending ECtHR judgments is mostly filled by repetitive cases. In order for these to be closed, justice has to be carried out for the individual applicant in the case. This usually involves the payment of compensation; or perhaps a retrial or proper investigation into the relevant events. Read the rest of this entry…

Print Friendly, PDF & Email
 

The Implementation of Judgments of the European Court of Human Rights: Worse Than You Think – Part 1: Grade Inflation

Published on October 7, 2019        Author: 
Sharing:
onpost_follow

Part 1 of this blog post will explore how the current narratives about the implementation of ECtHR judgments paint a misleading picture. In Part 2, a different set of statistics will be examined, in order to explore how well the implementation system is really functioning.

In some countries, exam results in schools and universities are improving every year. However, many doubt that this is because the students are actually doing better in their studies. The accusation is made that, though exam marks are improving, this is the result of tests being made easier, rather than the students becoming better educated. This “grade inflation” allows schools and universities to publish better results, but without the performance behind the results actually improving.

What applies to schools and universities can also apply to international institutions.

Over the last few years, the Council of Europe has advanced a consistent narrative about the state of implementation of judgments from the European Court of Human Rights. This narrative suggests that implementation is going very well indeed. Read the rest of this entry…

Print Friendly, PDF & Email