Archive of posts for category
Europe

Emerging Voices: Voting Rights of Expatriates in the European Court of Human Rights

by Ruvi Ziegler

[Reuven (Ruvi) Ziegler is a lecturer in law at the University of Reading School of Law.]

The European Court of Human Rights has consistently held that the undertaking in Article 3 of Protocol I of the European Convention on Human Rights (ECHR)  to hold ‘free elections’ which ‘will ensure the free expression of the opinion of the people in the choice of the legislature’ entails an individual right to vote (see e.g. in Hirst (no .2). [57]). While the Strasbourg court pronounced that ‘the presumption in a democratic state must be in favour of inclusion’ and that ‘any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates’ (Hirst (no .2), [59]), the court has hitherto failed to develop a principled approach regarding the circumstances in which such ‘departure’ may be justified. Instead, it has emphasised that ‘[a]s regards, in particular, the choice of electoral system, the Court reiterates that the Contracting States enjoy a wide margin of appreciation in this sphere’ (Sitaropoulos, [65-66]), as ‘[t]here are numerous ways of organising and running electoral systems’ (Id; also Shindler, [102]).

The margin of appreciation doctrine has received both scorn and praise. This post does not concern its general application; rather, it is contended that the court’s voting rights jurisprudence has conflated questions relating to choice of electoral systems (‘First-Past-The-Post’, Alternative Vote, Proportional Representation, Single Transferrable Vote, and the like) with questions relating to voting eligibility. Even if states should enjoy a margin of appreciation which takes into account the ‘historical development, cultural diversity and political thought within Europe’ (Hirst (no .2), [61]) when their choice of system of government is appraised, according states a ‘wide [but] not all-embracing’ (Hirst (no .2), [82]) margin of appreciation in determining voting eligibility detrimentally affects fundamental democratic rights of individual Europeans, as Strasbourg’s jurisprudence concerning voting rights of non-resident citizens (expatriates) exhibits.

All democratic states set eligibility criteria for elections of their institutions of government. Alongside the ubiquitous exclusion of non-citizen residents (at least from) national elections of their state of residence, some states – including members of the Council of Europe – impose residency requirements which disqualify expatriates during (part or all) of their period of absence. Consequently, otherwise eligible citizens of one member state of the Council of Europe residing in another member state can be excluded from elections of their state of citizenship and from elections of their state of residence.

(more…)

Meanwhile, Back to Important Policy Debates Over … EVOO

by Kenneth Anderson

Though I’m as much caught up in the drones debate du jour as anyone here at OJ, there are other pressing matters internationally, and one of them is olive oil.  I’ve blogged about EVOO adulteration in the past year, but the current contretemps is different.  EU regulators want to require that restaurants serve olive oil at the table in sealed individual servings (I guess a little bit like the little sealed catsup bottles one sometimes sees in restaurants in the USA) rather than the common practice of serving olive oil, for dipping bread or what-have-you, in little decanters.  The concern is partly health and food safety, but it also appears to be a press by agricultural interests to force the use of labeled olive oil, which will presumably have the effect of pushing up consumer awareness (yes, if – big if – what’s on the label is true), price (definitely), and quality (maybe, maybe not). So, as reported in the New York Times a few days ago (it appears the rule has been shelved for now):

The measure, which would have required that restaurants serve olive oil in sealed, clearly labeled and nonreusable containers, was meant to guarantee hygiene, according to the European Commission, the union’s executive body, which originally drafted the rules. It said the labeling would ensure the quality and authenticity of olive oils and also offer suppliers an opportunity to promote brand awareness, backers said. And the measure stood to benefit European olive growers, mostly clustered around the Mediterranean, in some of the countries hardest hit by the crisis in the euro zone. Fifteen of the union’s 27 governments supported the rule, including the major producers, Italy, Greece, Spain and Portugal. Portugal has had similar measures in place since 2005. But governments in the non-olive-producing north, including Germany, were opposed. Britain abstained.

The pushback was on classic EU terms, I guess we could say: Complaints that this sort of thing should never reach the level of the EU, and that individual states could deal with this kind of thing on their own:

The reaction was severe. Prime Minister Mark Rutte of the Netherlands condemned the measure, calling it “too bizarre for words” and not at all green. Criticism was particularly harsh in Britain, often the first among critics of the European Union’s reach. The olive oil rule was “exactly the sort of area that the European Union needs to get right out of, in my view,” Prime Minister David Cameron of Britain said Wednesday after a meeting of the bloc’s leaders in Brussels. “It shouldn’t even be on the table,” he said, immediately begging forgiveness for the wordplay.

Food safety is only partly the issue; from the standpoint of Europe’s olive oil producers, the much bigger issue is brand recognition and quality assurance – assuring quality and authenticity of olive oils served, which is also to say, raising the price.  But here the EU runs into a quite different problem; restaurants refilling olive oil bottles with oils of lesser quality is the least of the concerns about EVOO authenticity and quality.  I’ve blogged in the past about the surprising (at least to me as an international business transactions professor) fact of massive adulteration of “extra virgin olive oil” both inside the EU and in the global export market.  It’s adulterated with either lower grade olive oil, or else the oil itself is mostly low grade olive oil heated to take out the bad flavors (heated oil is essentially flavorless), or else different plant oils altogether (such as cottonseed oil.  It overwhelmingly happens at the producer, wholesaler, or distributor level, before it leaves the EU; it’s pretty clear that the supermarkets, even specialty store chains such as Whole Foods, whether in the US or Europe, have no idea that the product is not what it says.   (more…)

Lots of Media Coverage of Amanda Knox, But Almost No One has Bothered Reading the U.S. Italy Extradition Treaty

by Julian Ku

A depressingly large number of U.S. media outlets are covering the Italian Supreme Court’s decision to order a new trial in the case against Amanda Knox, the American exchange student charged with murdering her British roommate in Italy. Knox was convicted in trial court, but that conviction was overturned on appeal.

I say depressing because this is hardly the most significant international criminal trial going on these days. It is also depressing because most of the U.S. media coverage, and even the “expert” legal commentary, can’t seem to understand that if Italy requests Knox’ extradition, Knox has no double jeopardy defense.

The biggest mistake made by most of the media commentary (I’m looking at you Alan Dershowitz and various law prof types here) is that almost no one seems to have read the U.S. Italy Extradition Treaty.  Article VI reads:

Extradition shall not be granted when the person sought has been convicted, acquitted, or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested

(Emphasis added.) The Requested Party in this scenario would be the United States (Italy would be the “Requesting Party”).  The U.S. has never charged Knox with anything, much less with the murder of her UK roommate.  So Article VI does not bar Knox’ extradition to Italy. Period.

What about the U.S. Constitution’s Fifth Amendment prohibition on Double Jeopardy? Well, the short answer is that the Fifth Amendment’s Double Jeopardy Protection doesn’t apply in an extradition proceeding since the U.S. is not the one trying Knox (they are just handing her over).  The long answer is that even if the Fifth Amendment did apply, under US law, an appeal that overturns a lower court conviction is not an acquittal for purposes of the Fifth Amendment.  That is basically what happened here.  Knox was convicted, then her conviction was overturned on appeal, and then the appellate court judgment was reversed, and a new trial ordered (albeit at the appellate level). This is not double jeopardy, either under Italian law or US law.

So Knox had better get ready to be extradited, or she better get ready to move to Brazil. She has no serious double jeopardy defense here that I can see.  Now, if only someone would tell Alan Dershowitz.

Dutch Court Issues Mixed Ruling on Shell’s Liability for Nigerian Environmental Claim

by Roger Alford

As we wait with bated breath for the Supreme Court’s decision in Kiobel, it is worth remembering that there are viable alternatives to ATS litigation. That was particularly evident last week when The Hague District Court in the case of Akpan/Royal Dutch Shell. Here’s the Judicial Press Release (translated by Pieter Bekker):

Four Nigerian farmers and fishermen, together with Milieudefensie, commenced the lawsuits in The Netherlands, because they hold four entities within the Shell group, with its headquarters in The Hague, accountable for the damage resulting from four specific oil spills near their villages in Nigeria. The district court has found that the four oil spills were not the result of poor maintenance by Shell, but were caused by sabotage by third parties. Based on the applicable Nigerian law, an oil company in principle is not liable for oil spills resulting from sabotage. On this principal ground, all claims in four out of the five cases have been dismissed. With regard to the four lawsuits regarding an oil spill near the village of Goi in 2004 and an oil spill near the village of Oruma in 2005, the district court is of the view that Shell Nigeria took sufficient measures to prevent sabotage of its submerged oil pipelines. For this reason, and applying the general rule of Nigerian law, the Hague district court has dismissed the claims of plaintiffs Oguru, Efanga and Dooh in those four lawsuits.

In the lawsuit concerning two oil spills near the village of Ikot Ada Udo, the district court has ruled that Shell Nigeria has violated its ‘duty of care’ under applicable Nigerian law and has committed the ‘tort of negligence.’ In 2006 and 2007, an act of sabotage was committed in a very simple way near that village by using an English wrench to remove above-ground heads of an oil well abandoned by Shell Nigeria. Shell Nigeria could and should have easily prevented the sabotage by installing a concrete plug prior to 2006, whereas it only did so in 2010 while the lawsuit was pending. Consequently, the district court has ordered Shell Nigeria (i.e., Shell Petroleum Development Company of Nigeria Ltd, the Nigerian subsidiary of the Shell group) in that case to pay compensation to the Nigerian plaintiff, Mr. Akpan. The amount of compensation will need to be determined in a separate procedure, because to date the parties have only litigated the issue of liability, and the level of damages has not been addressed. Milieudefensie has brought the lawsuits together with the Nigerian plaintiffs. In the view of the district court, Milieudefensie has standing to defend environmental interests in Nigeria before the courts in The Netherlands. However, according to Nigerian law the oil spills in Nigeria are not unlawful vis-à-vis Milieudefensie and for this reason the claims of Milieudefensie have been dismissed.

Dutch courts and the parent companies of Shell The cases have been adjudicated by the Dutch court, because the claims are not only directed at Shell Nigeria, but also target the current British parent company of Shell, which has its headquarters in The Hague. The former parent companies of the Shell group in London and The Hague have also been sued. In interim rulings issued in 2009 and 2010, the district court ruled that it is justified to adjudicate the lawsuits against all Shell entities in The Netherlands, because those lawsuits are all closely connected.

In its final rulings of 30 January 2013, the district court has dismissed all claims against the parent companies, because (in short) under Nigerian law a parent company in principle is not obligated to prevent its subsidiaries from injuring third parties abroad and in the present case there are no special reasons to deviate from the general rule.

Here is a portion of Bekker’s commentary on the ruling (reprinted from OGEMID listserve with Pieter Bekker’s permission):

On January 30, 2013, the district court in The Hague, The Netherlands, announced in a press release that it has ruled that Shell Petroleum Development Company of Nigeria Ltd. (SPDC or “Shell Nigeria”), a member of the Royal Dutch Shell group of companies, is liable to pay compensation to plaintiff Friday Alfred Akpan, a resident of the Nigerian village of Ikot Ada Udo situated in Akwa Ibom State in the Niger Delta. Applying Nigerian law, the Dutch court found that Shell Nigeria had breached its duty of care and had committed the tort of negligence by failing to take sufficient measures to prevent sabotage by third persons to Shell Nigeria’s submerged pipelines near the Nigerian village in 2006 and 2007. The amount of compensation will be determined in a subsequent phase of the proceeding. The full text of the ruling (in Dutch) is yet to be released.

The lawsuit against Shell constitutes the first time that a Dutch multinational has been sued before a civil court in The Netherlands in connection with allegations of damage caused abroad by a subsidiary and appears to be part of a trend of plaintiffs from the developing world turning to the courts in developed countries for redress against multinationals.

Four Nigerian farmers and fishermen, along with Milieudefensie, the Dutch branch of the environmental group Friends of the Earth, had brought five separate lawsuits against four Shell entities and their parent company before the District Court in The Hague, claiming compensation for oil pollution damage suffered locally by the Nigerian plaintiffs in four incidents between 2004 and 2007, and allegedly caused by poor maintenance on the part of the Shell defendants.

The Hague court dismissed all claims in all but one proceeding after finding that the oil contamination was caused by sabotage by third persons as opposed to Shell’s poor maintenance of its local oil installations and that there was no evidence of Shell’s negligence in those cases. Under Nigerian law, an oil company in principle is not liable for oil pollution damage caused by third-party sabotage.

Importantly, the court dismissed all claims against Shell Nigeria’s co-defendant and parent company, Royal Dutch Shell plc, which has its headquarters in The Hague, referring to the general rule of Nigerian law according to which a parent company is not obligated to prevent foreign subsidiaries from injuring third parties abroad and finding no special reasons to deviate from the general rule. The court had found in interim rulings that it had jurisdiction over the claims against all of the Shell defendants because those claims were closely connected.

While the court accepted the Dutch environmental group’s standing to defend environmental interests in Nigeria before the courts in The Netherlands alongside the Nigerian plaintiffs, it rejected the NGO’s claims because oil pollution in Nigeria is not unlawful vis-à-vis the Dutch-based group under Nigerian law.

All plaintiffs have announced that they will appeal the district court’s ruling insofar as it concerns the court’s dismissal of the four other lawsuits and its rejection of the claims against the parent company.

The full text of the opinion (in Dutch) is available here. For more on Dutch human rights and environmental rulings similar to Akpan, see this amicus brief.

As I will discuss in greater detail later, such cases strongly suggest that domestic tort laws may be a viable alternative solution to ATS litigation. There is a wealth of cases (including US cases) applying tort law and conflict of laws that address many of the same factual scenarios that are presented in ATS litigation. Such cases will be particularly important if, as I suspect, the Supreme Court narrowly construes the ATS in Kiobel.

UPDATE: An English translation of the decision is available here.

Weak and Strong International Judicial Review: Legal Policy Implications

by Başak Çalı

[Başak Çalı is Senior Lecturer (Associate Professor) in Human Rights at the University College London]

This post is the third in a series of three.

In my previous post, I reviewed the Von Hannover (2) and Fatullayev cases to illustrate my argument that the standard of judicial review used by the European Court of Human Rights is variable. Notably, the Strasbourg Court chooses to employ a weaker form of judicial review when interacting with domestic courts it deems to be ‘responsible’ and a stronger form of judicial review when interacting with those it deems are not.

I term a ‘responsible’ domestic court to be one that, 1), takes Strasbourg’s interpretive principles seriously when interpreting fundamental rights and, 2), gives full-bodied reasoning when applying these principles to facts. Once a domestic court meets these criteria ‘strong reasons’ must be shown for Strasbourg to interfere with the outcome of the domestic judgment, be this violation or non-violation of rights. In contrast to this, a domestic court that fails to meet the threshold of Strasbourg-defined responsibility loses its legitimacy as a final domestic judicial authority. The European Court of Human Rights, therefore, sees itself as justified in demanding the annulment of a prison sentence confirmed by a supreme court.

What legal policy implications follow on from this? Is a variable standard of judicial review desirable? An obvious objection to this is the potential to alienate courts and political institutions in countries that are subject to harsher standards. As research on the perception of the legitimacy of the European Court of Human Rights shows, countries that are subject to stronger standards of review are also those that accuse the Strasbourg Court with employing ‘double standards’.  This has the potential of discouraging human rights compliance in countries where it is needed the most. The light touch approach also has the danger of alienating individuals in countries with responsible courts. Whilst it is easier to propose that identification of the correct procedure is distinct from the identification of the correct outcome, this is harder to distinguish in practice. In addition, applicants are primarily concerned with correct outcomes, and not with procedures.

The move away from a variable standard of judicial review may also have harmful consequences for the legitimacy and the authority of the European Court of Human Rights. Domestic courts that have made serious efforts to harmonise their acts with Strasbourg case law do so on the basis that mutual respect exists between their courts and the European Court of Human Rights. Stronger intrusion into all domestic courts for the sake of creating a level playing field would lead to a backlash from all domestic courts – regardless of their level of protection of human rights. Strong of judicial review is also what individuals demand in countries like Azerbaijan. As my research on this subject shows, domestic elites in countries such as Turkey and Bulgaria view the lack of intrusion into domestic sovereignty as a legitimacy deficit. In Germany and the United Kingdom, however, the exact opposite case was made.

On balance, a variable standard of international judicial review, I would argue, is the best strategy for an international court that looks over the shoulders of a variety of domestic legal systems with varying degrees of domestic protection of human rights. Whilst strong judicial review of courts with weak human rights protections may lead to a backlash from some judges, it may also offer an incentive for others who want to be seen as responsible internationally. The challenge for the European Court of Human Rights is to further clarify its ‘strong reasons’ test and ensure that its judgments -  whether concerning countries it deems ‘responsible’ or ‘irresponsible’ – are immune from any charges of politicization.

Standards of International Judicial Review: Von Hannover and Fatullayev Compared

by Başak Çalı

[Başak Çalı is Senior Lecturer (Associate Professor) in Human Rights at the University College London]

This post is the second in a series of three.

Last week I suggested that comparing the Von Hannover (2) Case of 2012 and the Fatullayev Case of 2010, both of which concern reviews of freedom of expression decisions given by supreme domestic courts, is a good way of understanding the variable standard of judicial review developed by the European Court of Human Rights.

The Von Hannover Cases (1) and (2)

The Von Hannover (2) Case was the second appearance of Princess Caroline of Monaco before the Strasbourg Court, arguing that the German press had violated her right to privacy. In the first Von Hannover Case of 2004, Princess Caroline advanced the argument that given that she does not hold a public office or have any public functions, the continuous publication of pictures depicting her private life in the German press violated her right to privacy, and the German Courts had failed to protect her. In the first case, the Strasbourg Court found a violation. In the second case it did not. From Princess Caroline’s perspective, this outcome is odd. The explanation lies in how the Strasbourg Court defines its standard of judicial review of domestic courts.  (more…)

Domestic Courts and the European Court of Human Rights: Towards Developing Standards of Weak International Judicial Review?

by Başak Çalı

[Başak Çalı is Senior Lecturer (Associate Professor) in Human Rights at the University College London]

This post is the first in a series of three.

The relationship between the highest domestic courts and the European Court of Human Rights has been subject to much debate in the past ten years in Europe. Some of this debate focuses on the backlash against the dynamic interpretation of the European Convention of Human Rights by the European Court of Human Rights. The interpretive principles such as the living instrument doctrine, and positive obligations are often thought to upset a wide variety of values including the original consent of states, democratic governance, and integrity and predictability of domestic legal systems. Some readers on the other side of the Atlantic view these debates as a good reason for remaining outside of international adjudication of human rights. Overly strong international human rights courts involved in exercises of ‘virtue ethics’ are not regarded as a good development for integrity of constitutional systems and democratic politics. Much of these debates assume that international human rights bodies, including the European Court of Human Rights, act as a Court of fourth instance, exercise their own opinions on the interpretation of facts on the ground or that they micro-manage domestic legal orders.

I would like to suggest a different framework here. Much criticism of the European Court of Human Rights and the international human rights law in general relies on the assumption that international bodies are engaged in strong judicial review. I suggest that this is a descriptive error. Much of what the European Court of Human Rights does is best understood as weak international judicial review or, at least, the development of standards of weak international judicial review in the making. Weak judicial review involves leaving an interpretive discretion to domestic courts that take into account the broader interpretive principles of the Court and admitting that where there is more than one reasonable interpretation, the Strasbourg Court will defer to the interpretation favoured by domestic high courts. This makes many of the concerns regarding micro-management of domestic systems by the Strasbourg Court ill-founded.  The most recent example of this is the Von Hannover case of 2012. In this case the Strasbourg Court is embracing this careful approach to its relationship with Constitutional and Supreme Courts, and going through special pains to signal that it wants to work with strong Supreme Courts rather than compete with them. Admittedly, for weak international judicial review to be in place the domestic court 1) has to be a strong rule of law court, and 2) must take international human rights protections seriously.  The development of the standard of weak international judicial review in the human rights field has parallels with the doctrine of  ‘responsible representative governments’ in the WTO Hormones case and points to an important emerging theme for future debate: should international courts treat different domestic courts differently as a matter of doctrine?  Do we need an explicit doctrine of ‘responsible domestic courts’ for international judicial review?

In the forthcoming post, I will review two cases from opposite ends of the Council of Europe terrain: the Von Hannover v. Germany No. 2 case of 2012 and the Fatullayev v. Azerbaijan case of 2010 to show that the European Court of Human Rights is signalling restraint when faced with a responsible domestic court and is willing to signal activism when faced with the opposite.

Texas v. the OSCE Election Observers: The Kerfuffle About Nothing

by Julian Ku

The agonizing close presidential race in the U.S. has made everyone on edge about election day problems at the polls.  This may explain why the State of Texas has decided to pick a fight with the election observers from the Organization for Security and Cooperation in Europe (OSCE), threatening to arrest election observers who interfere with the upcoming November 6 elections.

Texas authorities have threatened to arrest international election observers, prompting a furious response from the Organization for Security and Co-operation in Europe (OSCE).

“The threat of criminal sanctions against [international] observers is unacceptable,” Janez Lenarčič, the Director of the OSCE Office for Democratic Institutions and Human Rights (ODIHR), said in a statement. “The United States, like all countries in the OSCE, has an obligation to invite ODIHR observers to observe its elections.”

Lawmakers from the group of 56 European and Central Asian nations have been observing U.S. elections since 2002, without incident. Their presence has become a flashpoint this year, however, as Republicans accuse Democrats of voter fraud while Democrats counter that GOP-inspired voter ID laws aim to disenfranchise minority voters.

Texas Attorney General Greg Abbott further fueled the controversy on Tuesday when he sent a letter to the OSCE warning the organization that its representatives “are not authorized by Texas law to enter a polling place” and that it “may be a criminal offense for OSCE’s representatives to maintain a presence within 100 feet of a polling place’s entrance.”

As the blog post at the Hill goes on to note, this is a big kerfuffle about nothing. The OSCE observers do not have any special legal status and they have already agreed to follow Texas election law (or any other state’s election law). I should note that Texas is free to do whatever they want with the OSCE monitors, and there is no federal authority that can push them to do anything in particular about the OSCE.   I am not sure why Texas has gotten all hot and bothered by this.

To be sure, Texas authorities might be confused by reports like this one from ABC, which calls the OSCE a “UN affiliate” and links their mission to calls by the NAACP on the U.N. to block voter ID rules (uh, that’s totally wrong).  But while the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE/ODIHR) [gotta love that acronym] is here to “assess these elections for compliance with international obligations and standards for democratic elections…” This sounds ominous, until you realize that U.S. commitments to OSCE self-consciously political, and not legal.  That is part of the point of the OSCE. It is a political forum, not a formal legal one.

It is true that the OSCE (which includes very undemocratic states like Kazakstan as members) is hardly in a position to complain too aggressively about U.S. election standards. I suppose it could get ugly in a close election if the OSCE tries to influence the political fight over a recount.  But there are so many existing domestic laws that regulate elections in the U.S. (and forums for litigation) that I am doubtful that the OSCE could add much to what is already going to be a crazy election season here in the U.S.

Movsesian on “Ax Murderers, Values, and International Law”

by Chris Borgen

My colleague Mark Movsesian has a post at the St. John’s Center for Law and Religion Forum concerning the case of Ramil Safarov. He begins:

At a NATO conference in Hungary in 2004, an Azeri officer, Ramil Safarov, murdered one of the other participants, an Armenian officer named Gurgen Margaryan. Actually, that doesn’t quite capture it. Safarov broke into Margaryan’s room, stabbed him while he was sleeping, then severed his neck with an ax. Safarov confessed to the crime; Hungary convicted him of murder and sentenced him to life imprisonment. Two weeks ago, Hungary extradited Safarov to Azerbaijan, which promptly pardoned him, promoted him, restored his back pay for his years in the Hungarian prison, and generally gave him a hero’s welcome.

He then asks “How can one begin to make sense of this incredible episode?” His answer touches on the tensions over Nagorno-Karabakh, conflicting  interpretations of the Council of Europe’s Convention on the Transfer of Sentenced Persons, and Hungary’s foreign policy.

I had not known about this surprising incident before hearing about it from Mark. His post is well worth the read.

Klamberg on Extraditing Assange from Sweden to the U.S.

by Kevin Jon Heller

Mark Klamberg, who is a lecturer in public international law at the University of Stockholm, has a detailed post on his personal blog about the likelihood — or unlikelihood, to be more precise — that Sweden would extradite Julian Assange to the United States.  He has kindly given me permission to reprint a significant portion of it (I’ve made minor edits):

How does procedure work if somebody is to be extradited from Sweden? Pursuant to section 14 of the Extradition of Criminal Offences Act, a “request for extradition shall be made in writing. It may be transmitted by telefax or, subject to agreement in the individual case, by other means. The request shall be made to the Ministry of Justice.” The request shall according to section 15 of the same act be rejected immediately if there is a manifest reason why it should not be granted. Otherwise, the request is forwarded to the office of the Prosecutor-General, who shall deliver a statement of opinion on the matter. In addition, if the person referred to in the request has not consented to being extradited, the case shall be tried by the Supreme Court. Section 20(1) provides that if the Supreme Court has considered that there is a legal obstacle to extradition the request may not be granted. Even if the Supreme court has found that there are no obstacles, the Government can refuse extradition. This is because section 1(1) provides that if certain conditions are fulfilled, a person “may” not “shall” be extradited. In other words, even if the Prosecutor-General and the Supreme Court find that all conditions for extradition are fulfilled, the Government may veto such extradition. It does not work in the reverse way: the Government cannot grant extradition if the Supreme Court has found that any of the required conditions are lacking.

As I understand, Assange wants the Swedish Government to guarantee that it will not grant extradition to the US. The US has not made any request to the Sweden on this matter. In other words, Assange wants the Swedish Government to pledge to use its veto power in relation to a non-existing request and before the Prosecutor-General and the Supreme Court has evaluated this non-existing request. There is nothing in the Extradition of Criminal Offences Act that deals with this scenario, but it would depart from established practice. Cameron and et. al write in a general way about this in their book “International Criminal Law from a Swedish Perspective“, Intersentia, 2011, p. 171.

Assange fears that he will be extradited to the US where he may be at danger of being tortured or receiving the death penalty. There are at least three obstacles that make it difficult or even impossible to extradite Assange to the US…

Can We All Admit that Assange Has No Legal Case for “Safe Passage”?

by Julian Ku

I will refrain from adding too much to the increasingly ridiculous battle over Julian Assange’s refuge at the Ecuador Embassy in the UK. Assange is acting like a paranoid lunatic and it is astonishing to me that so many folks who should know better instinctively side with an accused rapist whose main argument is that the Swedish (Swedish!) justice system is being controlled by the CIA and US government.

However, I agree with the good folks at EJILTalk! that  the UK would be unwise to “terminate” Ecuador’s diplomatic rights to its embassy in this case.  I agree with Eric Posner that the UK would not act in clear violation of international law by stripping Ecuador of its diplomatic status, but I doubt Assange is worth such a drastic step.

Having said all that, can we also admit that Assange cannot credibly claim any “right” to safe passage, as his lawyers (including Spanish judge Baltasar Garzon) seem to be arguing here?

Baltasar Garzon, who is working on Assange’s defence, told Spanish newspaper El Pais that Britain was legally required to allow Assange to leave once he had diplomatic asylum.

“What the United Kingdom must do is apply the diplomatic obligations of the refugee convention and let him leave, giving him safe conduct,” he said. “Otherwise, he will go to the International Court of Justice.”

How the Refugee Convention applies here baffles me. I suppose Assange is going to claim that he faces a “well-founded fear” of persecution due to his politics.  This might make sense if the US was seeking his extradition (which it isn’t), or if the US could impose the death sentence on Assange (which would be pretty hard under US law and would also prevent any extradition from Sweden).  In any event, how does the Refugee Convention apply to Sweden? And how does the general requirement that the UK not “expel” a political refugee apply in this instance? This is just a lame argument, from what I can tell.
In the end, I think Daniel Drezner has the right take on this on twitter: Ecuador will quickly tire of Assange after a few months and kick him out, especially after the global media start forgetting about him.

Germany and Greece Take Their Fight to the Pitch

by Julian Ku

I love soccer (excuse me, “football.”). And I actually really enjoy tournaments like the Euro Championships or the World Cup because they remind me of the very powerful patriotic emotions that still exist, even in this supposedly post-national age, and even in the post-national E.U.  Who needs a European Constitution? I will truly believe in the Euro-State when the Europeans give up their national teams and send a single European team to the World Cup.   Until then, I am not buying this whole United States of Europe thing.

Which brings me to the recent Germany-Greece match, which took place amid continuing tensions over Greece’s struggles to remain in the Eurozone.  With German leader Angela Merkel on hand, German fans did not hold back, taunting the Greeks:

“Without Angie, you wouldn’t be here,” bellowed the German fans, referring to the multibillion-dollar bailouts Greece has received from European partners, first and foremost Germany.

But the Greek fans’ response was absolutely precious:

“We’ll never pay you back,” countered the Greeks. “We’ll never pay you back.”

And they never will…