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Announcements: Recommendations on the Legitimacy of Institutions of International Justice; Armed Conflict and Starvation Event; 20 Years of the ICC’s Rome Statute; CfP Melbourne Doctoral Forum on Legal Theory; CfP Engaging with Domestic Law in International Adjudication; CfP German Yearbook of International Law

Published on August 5, 2018        Author: 
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1. Recommendations on the Legitimacy of Institutions of International Justice. Fifteen judges from thirteen international courts recently drafted and finalized a set of recommendations aimed at reinforcing the legitimacy of institutions of international justice. These were the participants of the 2018 session of the Brandeis Institute for International Judges (BIIJ), organized collaboratively in June 2018 by the International Center for Ethics, Justice and Public Life, of Brandeis University, and the PluriCourts Center for the Study of the Legitimate Roles of the Judiciary in the Global Order, a center of excellence of the University of Oslo Faculty of Law. Blog posts are available on Intlawgrrls and PluriCourts blogs.

2. Chatham House Event: Armed Conflict and Starvation – What does the law say? The International Law Programme at Chatham House is hosting an even entitled “Armed Conflict and Starvation- What does the law say?” on 12 October 2018 from 17.30pm. Millions of civilians suffer hunger and starvation in times of armed conflict. This panel will discuss the legal prohibitions on the use of starvation as a method of war, and the obligations on the warring parties to allow access for humanitarian relief. Speakers include Professor Dapo Akande and Emanuela-Chiara Gillard, and the event will be chaired by Elizabeth Wilmshurst. It will be hosted at Chatham House | 10 St James’s Square | London | SW1Y 4LE.  The event will be followed by a drinks reception.

3. Twenty Years of the ICC’s Rome Statute: Utopia – Reality – Crisis. On 7 – 8 of September 2018 Edge Hill University and the University of Hamburg will co-host an interdisciplinary conference in Liverpool/UK on “Twenty Years of the ICC’s Rome Statute: Utopia – Reality – Crisis“. ICC judges, international scholars and practitioners will critically discuss the past, present and future role of the International Criminal Court. The program of the Conference and further information are available here

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Trade Retaliation in the Time of Trump

Published on August 3, 2018        Author: 
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A week ago the Editor-in-Chief of this Journal published a piece titled Black Lies, White Lies and Some Uncomfortable Truths in and of the International Trading System. Prof. Weiler’s argument can be summarised in two-steps: the steel tariffs imposed by the US arguing national security reasons were a gross violation of the WTO system — the black lie. The EU response establishing countermeasures did not follow the letter — or the spirit — of WTO Dispute Settlement System (Article 23). This may seem like a minor political issue, but, from a legal point of view, it undermines the system that the EU is declaring to uphold — the white lie.

Prof. Weiler — who I hold in utmost respect and appreciation as an academic and a person — does an excellent job in explaining the limitations of the WTO Dispute Settlements Understanding (DSU) to provide an adequate response to these cases. He cites the Internet Gambling saga and explains how the party violating the agreement has all the incentives to continue the violation until told by the final voice within the DSU (the Appellate Body) to cease in its conduct. In my view, this is an accurate description of a well-known problem within international trade law, since, pretty much, the creation of the WTO in 1994.

On paper, I would have nothing to add to his excellent editorial. In practice, there are a few elements that, I believe, could enrich the readers understanding of what is at stake here and how a system can organically evolve to address some of these shortcomings. Read the rest of this entry…

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The Rise and Rise of Political Backlash: African Union Executive Council’s decision to review the mandate and working methods of the African Commission

Published on August 2, 2018        Author: 
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The latest African Union (AU) Summit, held in Nouakchott, Mauritania, from 25 June to 2 July 2018, has left the African Commission on Human and Peoples’ Rights (ACHPR) severely undermined. The Executive Council adopted Decision EX.CL/Dec.1015(XXIII), which endorses some worrying recommendations that emanated from the joint retreat, held in June, by the ACHPR and the Permanent Representatives’ Committee (PRC). The adoption of the Decision has turned the recommendations into binding AU decisions or directives (see Executive Council Rules of Procedure, Rule 34 and Art. 23(2) of the Constitutive Act of the AU). This post reflects on the political motivations for, the legality of, and potential implications of three of these decisions or directives, namely:

  1. The decision to review the interpretative mandate of the ACHPR “in light of a similar mandate exercised by the African Court [on Human and Peoples’ Rights] and the potential for conflicting jurisprudence”;
  2. The directive to the ACHPR to align its guidelines for granting observer status to NGOs with “the already existing criteria on the accreditation of NGOs to the AU”; and
  3. The directive to the ACHPR formulate a code of conduct, in consultation with the AU Legal Counsel.

These decisions are seemingly noble or harmless. However, their underlying motive and impact dovetail into the broader backlash against human rights bodies in Africa (Alter et al 2016). Indeed, the decisions are based on a misconception about the nature of ACHPR’s independence. Read the rest of this entry…

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Supreme Court of Spain: UN Treaty Body individual decisions are legally binding

Published on August 1, 2018        Author: 
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The Spanish Supreme Court has established that the views expressed by UN Human Rights Treaty Bodies in individual complaints are binding on the State. The Court ordered Spain to pay €600,000 in compensation to Ángela González for the responsibility of its authorities in relation to the death of her daughter. Her daughter was murdered by her father in an unsupervised visit authorised by a judge. National courts dismissed Ángela’s case, but the Committee on the Elimination of Discrimination Against Women (CEDAW Committee) found a breach of her human rights. The Supreme Court has now affirmed that the State must comply with the Committee’s decision. This article discusses the significance of the case and the principle established by it.

Ángela González:  from domestic violence up to the United Nations (1996-2014)

Ángela’s daughter Andrea was born in 1996. Ángela’s partner subjected her to frequent physical and psychological violence. Ángela lodged no less than 30 complaints to the police and to the court. Her partner was convicted for one minor offence and ordered to pay a small penalty for harassment. Only one judicial order protected the minor and lasted for two months.

Marital separation was ordered in November 2001. The judge did not mention the violence as the cause of separation. The order allowed unsupervised visits between father and daughter, and the father was granted the use of the family dwelling. Ángela appealed the decision but was unsuccessful. Andrea had repeatedly expressed her desire not to see her father. In April 2003, the father killed the 7-year-old girl and then committed suicide during an unsupervised visit. Read the rest of this entry…

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Unlawful Killing or Self Defence? Some Thoughts on the ECHR Decision in Makarova v. United Kingdom

Published on July 31, 2018        Author: 
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The admissibility decisions of the European Court of Human Rights (ECHR) do not usually attract larger attention. There are, of course, well-known exceptions, such as Banković and Others v. Belgium and Others. The recent decision in Makarová v. the United Kingdom (see here), rendered on 5 July 2018 by a committee composed of three judges, will certainly not become one of these exceptions. Although the decision has made front pages news in the Czech Republic, the country of origin of the applicant, this has more to do with the factual background of the case than with any legal intricacies involved in it. Despite that, the decision, while not necessarily incorrect, has some interesting and possibly controversial aspects that might deserve closer scrutiny.

Facts of the Case

The facts are well-known and largely uncontested. The Czech citizen Zdeněk Makar, a 31-year-old brother of the applicant, was killed in September 2016 in London, where he had been living for 10 years. The person responsible for his death was a 29-year-old UK citizen Raymon Scully. Makar met Scully, who was in the company of younger friends, in a local takeaway restaurant. They had a dispute, after which Makar left the restaurant. Scully and his friends followed him down the street, where Scully attacked the unarmed Makar with a bite lock. According to a witness, “he swung the improvised weapon and struck Mr Makar to the left side of his head, catching him behind the ear and knocking him to the ground where he then struck him at least twice more”. While Mr Makar was dying in the street, Scully and his friends left without providing first aid or calling ambulance.

The trial with Scully took place between 21 March and 3 April 2017 at the Central Criminal Court in London, and involved a jury composed of twelve lay persons. The members of the jury had to decide whether the act committed by Scully was to be qualified as a murder (intentional killing), manslaughter (unintentional killing) or self-defence. They were informed about the legal requirements of these three qualifications. The trial judge also explained to them that Scully’s good character (i.e. lack of previous criminal convictions) could be taken into account when considering the case. On 3 April 2017, the jury delivered a majority verdict concluding that the defendant had acted in self-defence (defending one of his friends). Scully was acquitted of both murder and manslaughter and set free.

The verdict caused outcry in the Czech Republic, where it was interpreted as a sign that in the pre-Brexit UK, the lives of migrant workers from Central Europe were not given much weight. The Czech Ministry of Foreign Affairs issued a diplomatic note, in which it requested the documents related to the case and “assurance that the nationality /…/ had no influence on the judgment”. The Ministry furthermore announced that it would provide assistance to Makar’s sister, Adéla Makarová, in bringing the case to the ECHR. Makarová lodged the application to the Court on 4 September 2017. On 5 July 2018, the Court declared the application manifestly ill-founded and, hence, inadmissible.

ECHR Decision

The application relied on Articles 2 (right to life) and 13 (right to an effective remedy) of the European Convention on Human Rights. With respect to the former, the applicant argued that the UK (i.e. England and Wales) criminal system exhibited structural deficiencies in that: a) the proceedings failed to produce clear reasons for the defendant´s acquittal; b) the UK test for self-defence allowed instances of unlawful killing to go unpunished; c) the UK law did not criminalize intentional omissions to provide first aid. Alternatively, the applicant argued that a proper application of the domestic could not have led the jurors to the conclusion they had reached. With respect to Article 13, the applicant complained about the absence of an appeal against an acquittal by a jury in criminal proceedings.

The Court rejected all these arguments. It concluded that the UK satisfied the procedural obligation under Article 2(1), because: a) the Convention does not require jurors to give reasons for their decision; b) the subjective test of self-defence used in the UK does not violate Article 2;c) Article 2 does not impose a positive obligation to criminalise intentional omissions. As to the alternative argument, the Court repeated that there had been sufficient safeguards against arbitrariness.

With respect to Article 13, the Court simply recalled that this provision only applied where an individual had an arguable claim to be the victim of a violation of a Convention right. Since the Court already found the applicant’s complaint under Article 2 manifestly ill-founded, there was no such arguable claim and the complaint under Article 13 was declared manifestly ill-founded as well. Read the rest of this entry…

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What on Earth is Happening to Space Law?

Published on July 31, 2018        Author: 
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In 2015 and 2017, respectively, the United States of America and Luxembourg enacted bills granting property rights on resources collected in outer space. The potential beneficiaries of these laws are hi-tech companies investing in the exploration and exploitation of space resources. Even though robotized mining of precious metals, rare earths and other raw materials on the Moon or on near-Earth asteroids is said to be at least 20-25 years away, an economy of space resources is already developing at a brisk pace. The stakes are in fact high: mining a few large asteroids may change world market conditions for some crucial raw materials. One may be tempted to see these new developments as intimations, not only of a new space race, this time driven by private actors, but also of the space law to come – and possibly as an occasion to let space law flow back into the main stream of international legal scholarship.

Space law began to take shape as a branch of public international law some time around the late 1950s. In the next two decades it struggled to define its identity by analogy with the law of the sea and the legal regimes of other remote places (yet not as remote) like Antarctica or the deep ocean seabed. The law-of-the-sea analogy has always been a powerful motif in the making of and theorizing about the law of outer space. But it is also potentially misleading, as Rolando Quadri was ready to point out in 1959. Epitomized by the adoption in 1979 and subsequent failure of the Moon Agreement, space law’s arrested development left it with an uncertain, coarse-grained legal ontology that compares unfavourably to that of the law of the sea. While the latter distinguishes between low-tide elevations, islands, and uninhabitable rocks, space law works with an inchoate notion of ‘celestial body’ encompassing anything between the Sun and the tiniest asteroid. The legal status of space resources, both living and non-living, is likewise uncertain and no agreement has as yet been reached as to the exact boundary between airspace and outer space, let alone on the limits of humanity’s jurisdiction to prescribe or on protocols governing the encounter with other sentient beings. Tomorrow’s spacefarers will not be leaning over a legal void. It is clear, though, that some rethinking of the fundamentals is required, as well as some change.

Unilateral initiatives like those recently taken by the US and Luxembourg may well set in motion processes of legal change, no matter if these States describe their acts as fully compliant with the existing law of outer space. Although understandable as a matter of diplomatic tactics, this defensive stance is nonetheless based on a disputed interpretation of the law in force (for overviews and detailed analyses of the different positions see Pop, Tronchetti, De Man, Jakhu et al.Su and Hofmann).

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Geographical Remoteness in Bemba

Published on July 30, 2018        Author: 
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Introduction

The ICC Appeals Chamber’s acquittal of Jean-Pierre Bemba Gombo continues to provoke discussion. In a previous post, I addressed the Appeals Chamber’s treatment of the relevance of a commander’s motivation in taking measures to prevent or punish the crimes of his subordinates. This issue of motivations was one of two putative errors emphasised by the Appeals Chamber in its summative paragraph – paragraph 191 – on the Trial Chamber’s finding that Mr Bemba failed to take all necessary and reasonable measures. The second putative error identified in that paragraph concerned the Trial Chamber’s failure to properly take into account the difficulties that Mr Bemba would have faced as a remote commander sending troops to a foreign country.

The description of Mr Bemba as a remote commander has been emphasised in numerous media reports, as well as in academic commentary. A concern raised in the latter is that the decision introduces a new distinction into the law of command responsibility – a distinction between remote and non-remote commanders, with the former being held to a lower standard than the latter. This post analyses how the Appeals Chamber dealt with the remoteness issue. First, it sets out the Majority Judgment’s findings on Mr Bemba’s status as a remote commander and suggests that it is not clear whether it intended to draw a legal distinction between commanders. Second, it argues that the drawing of such a distinction would be indefensible as a matter of principle – geographical position ought not be used to distinguish between commanders. Third, and happily, it shows that even if the Majority Judgment is unclear, President Oboe-Osuji’s Concurring Separate Opinion and the Joint Dissenting Opinion of Judges Hofmanski and Monageng indicate that there weren’t three votes for the introduction of any such distinction. In other words, the decision in Bemba does not stand for the proposition that we are now faced with an additional distinction in the law of command responsibility. Finally, it returns to Bemba itself, and the Majority Judgment’s reasoning on this point. That reasoning is not convincing. Read the rest of this entry…

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African Court on Human and Peoples’ Rights Delivers Landmark Ruling on Women’s Rights and the Rights of the Child in Mali

Published on July 27, 2018        Author: 
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Introduction

On 11 May 2018 the African Court on Human and People’s Rights (‘the Court’) issued its ruling in the case of Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and the Institute for Human Rights and Development in Africa (IHRDA) v Mali. This is the first judgment of the Court which deals with the rights of women and the rights of the child in Africa. With this decision, the Court has placed strict obligations on states to uphold international human rights standards within the sphere of family law, even when to do so may require them to disapply religious and customary law.

Facts

The application was brought by two Malian human rights NGOs, APDF and IHRDA (‘the Applicants’). The Applicants claimed that the most recent Malian Family Code, which was adopted in 2011 (‘2011 Family Code’) breaches several international human rights treaties ratified by Mali including: the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (‘Maputo Protocol’), the African Charter on the Rights and Welfare of the Child (‘ACRWC’) and the Convention on the Elimination of all forms of Discrimination Against Women (‘CEDAW’). A large proportion of the population in Mali are Muslims, and the 2011 Family code was adopted as the result of a compromise between the National Assembly and various Islamic organisations within the country that protested vigorously against a prior attempt by the Malian Parliament to codify the rights of the family in 2009. This earlier code had attempted to provide rights for women and children in family matters that were more aligned with human rights treaty standards. Read the rest of this entry…

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Not Appropriate:  PTC I, Palestine and the Development of a Discriminatory ICC Jurisprudence

Published on July 26, 2018        Author:  and
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On 13 July, Pre-Trial Chamber I (PTC I) issued an unprecedented decision in which it ordered the Registry to establish unique public information and outreach activities for the “benefit of the victims in the situation in Palestine”, as well as to report on its situation activities on an ongoing basis.  No Pre-Trial Chamber has made the same orders with respect to victim outreach in a situation under preliminary examination before, and the legality, timing, and singular nature of the decision all give rise to concern. 

The decision singles out victims of one situation whilst ignoring others, reflecting a double standard which forms the basis of Israel’s complaints that its rights to equal treatment are systematically violated before 21st century international organisations and tribunals. In this sense, the decision is illuminating as it demonstrates to international criminal law practitioners how PTC I has substantiated Israel’s complaint of double standards in the Chambers’ first substantive engagement with the Situation in Palestine. Given the unique way that the Situation in Palestine has been singled out, PTC I’s decision will be viewed by many as a political one.  This is an accusation which, especially after the collapse of the Kenya cases, the ICC should be more wary of making itself susceptible to.

The Legality of the PTC Decision Read the rest of this entry…

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New Issue of EJIL (Vol. 29 (2018) No. 2) Published

Published on July 26, 2018        Author: 
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The latest issue of the European Journal of International Law (Vol. 29, No. 2) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access article in this issue is Devika Hovell’s  The Authority of Universal Jurisdiction. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

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