Archive of posts for category
Europe

Guests Posts on Jones v. United Kingdom

by Roger Alford

We are happy to announce that Opinio Juris and EJIL:Talk! will be providing reactions to the European Court of Human Rights decision in Jones v. United Kingdom over the coming days. The critical question in Jones was whether Saudi Arabia and Saudi officials enjoyed immunity from suit for allegations of torture. The Court denied petitioners claims, holding that “The weight of authority at international and national level therefore appears to support the proposition that State immunity in principle offers individual employees or officers of a foreign State protection in respect of acts undertaken on behalf of the State under the same cloak as protects the State itself.” (Para. 204).

Here at Opinio Juris, Chimène Keitner, Bill Dodge (both at the University of California, Hastings College of Law) and Ingrid Wuerth (Vanderbilt) will provide commentary. Over at EJIL:Talk! Lorna McGregor (Essex University), who worked on the case while she was Legal Adviser at Redress (an NGO that helps torture survivors), and Philippa Webb (Kings College London) will discuss the case from across the pond. They all have written influential pieces on the relationship between immunity and human rights.

Is the EU Adopting a Double-Standards Approach toward Israel and the Palestinian Territories? (Part 2)

by Lorenzo Kamel

[Lorenzo Kamel, Ph.D., is a Research Fellow at Bologna University’s History Department and a Visiting Fellow (2013/2014) at Harvard University’s Center for Middle Eastern Studies.]

My previous post analyzed the EU’s approach towards Northern Cyprus and Western Sahara. This post will focus on the Palestinian Territories and the EU’s approach towards Israel’s policies in the area.

The Palestinian Territories represent a “sui generis case” among most of the “occupations” currently in place in different parts of the world. Not only in consideration of how long this occupation has been prolonged, but also because it represents one of the rare cases in which a military power “has established a distinct military government over occupied areas in accordance with the framework of the law of occupation.”

In other somewhat similar contexts, such as, just to name a few, Abkhazia, the Turkish Republic of Northern Cyprus (TRNC) and East Turkestan, the occupying powers of these areas have created in loco nominally independent states (TRNC-Turkey, Abkhazia-Russia and so on), and/or are not building settlements in their “occupied territories” (Chechnya is just an example), and/or have incorporated the local inhabitants as their citizens: with all the guarantees, rights and problems that this entails.

Some scholars have stressed out that the Golan Heights and East Jerusalem have been (unofficially, in the case of East Jerusalem) annexed by the State of Israel and that despite this, the EU Guidelines (discussed in the previous post) are to be enforced in these territories as well. Therefore, according to them, the comparison with other “occupations” would show that the Palestinian case cannot be considered “sui generis” and that the EU approach on the issue is marred by incoherence. These claims deserve a short preliminary clarification.

(more…)

Exploring International Law with Opinio Juris in 2013: Highways, Back Roads, and Uncharted Territories…

by Chris Borgen

There’s never a boring year in international law and 2013 turned out to be particularly eventful: Syria, major cases in front of national and international courts, a possible nuclear deal with Iran, and turmoil in Eastern Europe, Egypt, and South Sudan, to name but a few reasons.

This post is not an attempt to log all that we have written about on Opinio Juris this year. There’s just too much.  If any of these topics (or others) are of particular interest to you, you can use our search function to find the posts related to them.  Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013… (Continue Reading)

More on Ukraine: All Normative Geopolitics is Local

by Chris Borgen

As the political crisis in Ukraine over the government’s decision not to sign an Association Agreement with the EU passes its second week, this conflict and the positioning over other Russian “Near Abroad” countries (especially Armenia, Moldova, and Georgia) are good examples of the interrelationship of norms and geopolitical strategy.

The situation has been largely described in terms of Putin’s reaction to these countries planning on signing new agreements with the EU.  While that is an important part of the story, it is only part. As I described in previous posts (1, 2), this is also very much a story of domestic disputes over norms, ranging from domestic laws to cultural practices.

And, closely related to this latter aspect of normative geopolitics, is the importance of domestic politics in country that has significant ideological divisions.

This might actually be another iteration of Ukraine’s strategy of balancing both Russia and the EU by playing both sides and committing to neither. Political analyst Nicu Popescu has written:

In fact, Kiev chose not to choose at all and tried hard to maintain the status quo in Ukraine’s foreign and domestic policies. Yet in his bid to buy time, President Viktor Yanukovich inadvertently precipitated the biggest crisis of his presidency to date.

Consider in relation to this the New York Times report that “[a]t virtually the same time” that Ukraine cabinet of minsters announced suspension of preparations to further integrate with the EU:

President Viktor F. Yanukovich, who was on a visit to Vienna, issued a statement saying, “Ukraine has been and will continue to pursue the path to European integration.”

In a move emblematic of Ukraine’s often inscrutable politics, Mr. Yanukovich barely acknowledged the developments in Kiev and, responding to a reporter’s question about the pacts with Europe, said, “Of course, there are difficulties on the path.”

Was this an attempt to soften the blow that Ukraine is turning its back on the EU or some complex tacking to serve an immediate need (holding off Russian gas embargoes as the winter sets in) while deferring a longer term goal (increasing European integration)? Even Kiev-watchers seem a bit befuddled.

But that’s politics in a systemic borderland

(Continue Reading)

The Protests in Ukraine and Normative Geopolitics

by Chris Borgen

One hundred and ten years ago next month, British geographer Halford Mackinder presented a paper at the Royal Geographical Society in London entitled “The Geographical Pivot of History,” setting out the basic tenets of what we now call “geopolitics.”  Strategic thinking during the Cold War was in part framed by geopolitical ideas such as the struggle over key territory in the “global heartland,” namely, Eurasia. But geopolitics today has evolved. It is no longer primarily a military stuggle to take or hold territory. It is now defined by competition over ideas and institutions in relation to strategic goals. Geopolitics has become normative.  Witness Ukraine.

Tens of thousands people are in the streets of Kiev because Ukraine’s political leadership announced two weeks ago that it would not sign an Association Agreement and a Deep and Comprehensive Free Trade Agreement (DCFTA) with the EU at the EU summit in Vilnius at the end of November. Rather, the government announced that Ukraine would join the Moscow-led Eurasian Customs Union.  The relationship of foreign policy strategy to norms and laws, of high politics to people in the streets, is the stuff of normative geopolitics.

I had recently written a post about the struggle to define the normative futures of countries in Russia’s “near abroad,” particularly Ukraine, Moldova, Armenia, and Georgia.  (And written about these topics at greater length in various articles and essays.) At issue is whether these countries will become more fully integrated into “European” institutions (especially the EU) or reintegrate with revamped “Russian” institutions (such as the Eurasian Customs Union). When a state is on one side or another of a normative border (Lithuania is part of the European normative order, Belarus is in Russia’s), normative boundaries coincide with national boundaries and the situation is relatively clear. But some states, such as Ukraine, are what I have called “systemic borderlands” that contain aspects of two or more normative systems. When normative systems overlap and jostle within a country, the result can be normative friction.  This can relate to domestic laws, such as whether a particular conception of property rights or of human rights will be adopted. It can also concern international legal norms, such as to which treaties a state will become a signatory or which international organizations a state may join.

Ukraine is a particularly stark example of a systemic borderland; its electoral map shows the normative division of the country between further integration with the EU or  with Russia.  The NY Times reported on November 21 that Ukraine’s decision not to sign the Association Agreement:

…largely scuttles what had been the European Union’s most important foreign policy initiative: an ambitious effort to draw in former Soviet republics and lock them on a trajectory of changes based on Western political and economic sensibilities. The project, called the Eastern Partnership program, began more than four years ago.

[This] a victory for President Vladimir V. Putin of Russia. He had maneuvered forcefully to derail the plans, which he regarded as a serious threat, an economic version of the West’s effort to build military power by expanding NATO eastward. In September, similar pressure by Russia forced Armenia to abandon its talks with the Europeans.

The EU issued a memorandum reiterating its (at least official) view that the signing of DCFTAs and Association Agreements with the EU is not normative competition, but rather normative bridge-building between east and west:

While being aware of the external pressure that Ukraine is experiencing, we believe that short term considerations should not override the long term benefits that this partnership would bring. However the European Union will not force Ukraine, or any other partner, to choose between the European Union or any other regional entity. It is up to Ukraine to freely decide what kind of engagement they seek with the European Union…

We therefore strongly disapprove of the Russian position and actions in this respect. The Association Agreement and a DCFTA are opportunities to accompany our common neighbours towards modern, prosperous and rule-based democracies. Stronger relations with the European Union do not come at the expense of relations between our Eastern partners and their other neighbours, such as Russia. The Eastern Partnership is conceived as a win-win where we all stand to gain.

This attempt at framing increasing integration with the EU as a “win-win” for the EU, Russia, and Ukraine, has not persuaded Vladimir Putin…(Continue Reading)

The Nationalists Strike Back: The “No-Spy” Agreement Solution to the NSA Spying Scandal

by Julian Ku

I agree with Peter that there is a move to universalize (through accretion) a norm against spying via Article 17 of the ICCPR.  But unlike Peter, I think it will get nowhere.  Instead, I was struck by how the German complaint against the NSA program has not really been phrased in terms of how it violates international norms or laws.  Rather, it seems that the Germans (and French) are really hurt because they don’t have a “no-spy” agreement with the U.S. like Canada, the UK, Australia, and New Zealand do (The so-called “Five Eyes” or AUSCANNZUKUS)

In other words, the problem is not that spying itself is illegal or morally wrong, but that it is illegal and morally wrong to spy on your allies and friends.  Spying on other countries might very well be morally and legally justified (e.g.: North Korea, Iran, China, Russia).  A universal anti-spying norm could very well be the opposite. Indeed, it seems unlikely that Germany and France would seriously support a universal anti-spying norm that would constrain their own very robust spying efforts.

With this in mind, it is worth considering whether and how the U.S. should adopt new “no-spy” agreements, something President Obama seems willing to consider.   I actually think a “no-spy” agreement is a better approach than unilaterally disarming in the spy wars.  Do we really think the French will stop trying to spy on the U.S. once the U.S. pledges to stop spying on France?  Better to at least commit the French to a deal.

From a foreign relations law perspective, “no spy” agreements are curious.  They are sole executive agreements and they may or may not have a binding character under international law. Certainly, they are not formal treaties.  The U.S. Congress probably has incomplete knowledge of exactly what is in these agreements and how they are operating.

Stewart Baker is already up with congressional testimony (dated today) on criteria for any new “no-spy” agreements.  Interestingly, the main thrust of his testimony is that Congress should start exercising a little oversight, at least if the U.S. starts buying off allies with new “no spy” agreements.  He has some pretty stringent requirements (a cooling off period for any new agreements that must all be submitted to Congress for review, a report on compliance,etc).  He doesn’t go so far as to require Congressional approval for any new no-spy agreements, but he might as well.  I doubt Congress would go that far, and I think there will be some questions over whether Congress has the legal authority to constrain these kinds of executive agreements.

In any event, my prediction is that the fallout from the latest NSA scandal will be a flurry of “no-spy-on-you” promises and then a series of new “no spy agreements” for certain favored “allies”.  I think Germany will talk about a universal anti-spying norm, but this initiative will eventually die largely because no large nation really wants it.

Russia, Moldova, and the EU: Realpolitik as Normative Competition

by Chris Borgen

Today’s New York Times has an overview of Russia’s power politics towards its “near abroad,” countries that used to be part of the USSR.  Some of these countries, such as Armenia, Moldova, and Ukraine, have been debating internally whether to become more integrated with the EU or to rebuild close ties with Russia. Armenia made the news recently for setting aside years of negotiations with the EU and, under considerable pressure from Moscow, announcing that it would join the Russian-led Eurasian Customs Union. While the New York Times article focuses on the foreign policy and economic issues involved, these situations also exemplify the importance of law (both domestic and international) in international relations, because high politics in the “near abroad” is not about the formal acquisition of territory, but the adoption of norms. (For more on this theme see, also, this.)

The New York Times article uses the case of Moldova as an example of how Russia pressures its neighbors: threatening energy cut offs, banning key exports from Moldova, even bringing religion into play. In the case of Moldova, Russia also supports a separatist group that has seized control of Transnistria, the eastern-most section of the country. (As readers of this blog may know, I was part of a group of lawyers from the NY City Bar who wrote a report on the legal issues related to the Transnistrian conflict and, last year, part of an Open Society Foundations supported study comparing the conflicts in Moldova and Cyprus.)

But the heart of the matter is whether Moldova will become more fully integrated into “European” institutions (the EU, first and foremost) or reintegrate with revamped “Russian” institutions (the Eurasia Customs Union, for example). At times a state can be on one side or another of a normative border: Poland is part of the European normative order, Belarus is in Russia’s. In such cases, when normative boundaries coincide with national boundaries the situation is relatively clear. But the issue of which way Moldova will face is still being contested, somewhat within Moldova (particularly by the Transnistrian separatists) and more so by Russia. Thus, Moldova and certain other states in Russia’s near abroad (such as Ukraine) are borderlands between two normative systems, each state containing aspects of both.

When normative systems overlap and jostle within a country, the result can be normative friction. This can relate to domestic laws, such as whether a particular conception of property rights or of human rights will be adopted. It can also concern international legal norms, such as to which treaties a state will become a signatory, which international organizations a state may join, the recognition of national borders, and issues of non-intervention. Any issue that seems to favor one set of normative system over another can become symbolic of a larger struggle. Even when you put up and take down Christmas decorations can turn into a political crisis.

Although this has been the case in Moldova, Armenia, and Ukraine for years, Russia is increasing its pressure now because… (Continue Reading)

Fish Fight! Faroe Islands Will Take the European Union to UNCLOS Arbitration

by Julian Ku

The Faroe Islands has announced it has filed a referred the European Union to arbitration under the UN Convention for the Law of the Sea.  Apparently, it is a dispute over herring.

“The Faroe Islands have today referred the use of threats of coercive economic measures by the European Union, in relation to the Atlanto-Scandian herring, to an arbitral tribunal under Annex VII of [UNCLOS],” the Faroese prime minister’s office said on Friday.

On July 31, the EU’s fisheries and aquaculture committee approved a proposal to use trade sanctions against the Faroe Islands over their unilateral decision to triple their quota of Atlanto-Scandic herring for 2013.

OK, so this is not exactly Philippines-China, and much as I enjoy my herring, I can probably survive without it.  Still, to an international lawyer, this arbitration it is an unusual example of non-state entities invoking international dispute resolution mechanisms.  The Faroe Islands are a self-governing entity within the “Realm of Denmark”. So they are not a fully sovereign state, but apparently they are not just a part of Denmark either.  Still, it is Denmark, and not the Faroe Islands, that is a signatory to UNCLOS.

Similarly, the EU (or the European Communities) is not a state but it is a signatory to UNCLOS for certain competences that EU members have transferred to it. Oddly enough, Denmark has transferred its competence for these matters to the EU, but not for the Faroes.

Confused? I certainly am. In any event, the result is that a non-state subnational entity is seeking arbitration against a non-state supranational entity before an international arbitral tribunal created under the auspices of an international organization (the UN).  Why the Faroes didn’t seek some internal European mechanism to resolve this is beyond my understanding  It would be like Puerto Rico bringing a case against the U.S. in an international court. Sounds like a messy fight is brewing.

Treaties on Espionage — A Strange Pairing?

by Duncan Hollis

I’ve spent a lot of time thinking about treaties. And I’ve read lots and lots of them over the years. From time to time, however, I encounter something I find truly novel on the treaty front. A case in point, was this story in IT World yesterday.  It refers to pending negotiations between the United States and Germany on an agreement not to spy on each other:

The U.S. has verbally committed to enter into a no-spying agreement with Germany in the wake of disclosures about the U.S. National Security Agency’s secret surveillance programs.

The verbal commitment was given in talks with the German Federal Intelligence Service (Bundesnachrichtendienst, BND), the sole foreign intelligence service of Germany, the German government said in a news release on Wednesday. This means that there must be no governmental or industrial espionage between the two countries, it said . . . No further details about the agreement were given. The German Federal Ministry of the Interior reached on Monday could not immediately respond to a request for comment.

I’ve never encountered such a treaty commitment before and I wonder what the proposed agreement will look like (and even if it’ll be a treaty at all — perhaps a political commitment is more likely?).  Have astute readers encountered similar types of “no-spying” arrangements in the past?  If so, I’d love to hear about them, not to mention any comments or expectations for compliance if the United States and Germany do conclude a non-spying treaty. For my part, I’ve always assumed spying is by its very nature the sort of thing you do after promising not to do it, but I also assume the United States generally tries to honor its treaty commitments too, suggesting any future deal won’t end well one way or another.

Emerging Voices: Does International Law Forbid Complicity in the Death Penalty?

by Bharat Malkani

[Bharat Malkani is a lecturer at Birmingham Law School, University of Birmingham, where he also runs the Birmingham Law School Pro Bono Group. You can also follow him on Twitter at @bharatmalkani]

Recently, Ali Babitu Kololo was sentenced to death by a Kenyan court for his role in the murder of David Tebbutt, and the kidnapping of David’s wife, Judith, in September 2011. David and Judith were British holidaymakers in Kenya at the time of their ordeal, and British police were heavily involved in the investigation into these crimes. Officers from the Met’s Counter Terrorism Command (SO15) travelled to Kenya and played a major role in securing the arrest and conviction of Kololo. The officers provided forensic expertise, assistance with preparing the prosecution’s case, and also provided support to the victims’ family. Commander Richard Walton, the Head of the Met’s Counter Terrorism Command, said: “The investigation team, led by Detective Superintendent Neil Hibberd, have… shown great skill and tenacity in assisting this Kenyan investigation.”

It is only right that British authorities should help to bring the killers and kidnappers of British citizens to justice, and Kololo should be punished severely for the crimes he committed. But it is questionable whether the British authorities should contribute to the imposition of the death penalty. The UK has long rejected capital punishment for even the most serious of crimes, and the UK currently plays a leading role in promoting abolition of the death penalty in other countries. At the very least, it is starkly hypocritical for the UK to condemn other countries for using the death penalty on the one hand, while on the other hand actually assisting those countries like Kenya impose the death penalty.

Moreover, though, it might actually be illegal for British authorities to be complicit in the death penalty. It is arguable that, under international law, a norm is emerging that prohibits states that have abolished the death penalty from assisting its use elsewhere, comparable to the prohibition on complicity in torture and the prohibition on complicity in other internationally wrongful acts (Article 16 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts) .

The starting point for this claim can be found in extradition law. Both the European Court of Human Rights and the United Nations have made it clear that abolitionist states are forbidden from extraditing individuals to states where there is a real risk that they will face the death penalty. The principle behind this prohibition is simple: to do otherwise would be tantamount to aiding and assisting a practice that is forbidden.

Wider obligations to refrain from being complicit in the death penalty can be extrapolated from this principle…

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…)