Archive of posts for category

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…

Thousands of Kids Are Obsessed Today With What Six Countries?

by Roger Alford

Like thousands of other high school kids, today is AP Comparative Government exam day in the Alford household. According to the AP College Board, “The course aims to illustrate the rich diversity of political life, to show available institutional alternatives, to explain differences in processes and policy outcomes, and to communicate to students the importance of global political and economic changes.” But in order to move the discussion from the abstract to the concrete, AP Comp. Gov. students are required to study six–and only six–representative countries. Can you guess the six countries chosen as suitable for comparison? And could you answer the short- or long-essay questions these high school whiz kids are required to answer? Details after the jump:

British Public Opinion Turning Against European Convention on Human Rights

by Julian Ku

I know these polls might not reflect a whole lot of deliberation or thoughtfulness, but still, it is amazing to me:

Nearly three quarters of Britons think human rights have become a ‘charter for criminals’, a poll has revealed.

It showed a strong majority of 72 per cent hold negative views about the role of human rights laws.

Only one in six said human rights had not become a charter for criminals and the undeserving.

This is not a good trend for the ECHR and it would be interesting to see if this type of popular opinion will make a difference in UK policy or reform of its implementation of the ECHR.

My Compilation of On-line Treaty Databases

by Duncan Hollis

In 1973, Hans Blix and Jirina Emerson edited the Treaty Maker’s Handbook to help newly emerging States appreciate, post-decolonization, the intricacies of treaty-making as a matter of both domestic and international law. One of the work’s lasting legacies was the inclusion of sample provisions drawn from existing treaties on various treaty topics such as participation, entry into force, reservations, and amendments. The volume became a staple among treaty negotiators, and continues to be used today even as it becomes increasingly dated.

With due credit given to Blix and Emerson, one of the key features of my forthcoming book – The Oxford Guide to Treaties is a new set of treaty clauses. The volume includes 350 clauses taken from an array of existing treaties on 23 different treaty issues, such as the various ways treaty clauses may define a treaty’s object and purpose, delineate territorial and extraterritorial application, identify a treaty’s relationship to other treaties, or authorize simplified amendment procedures.

I found some of these clauses the old fashioned way, using multi-volume hard-bound sets of books like those edited by Bevans or UST (the US Treaty Series). But, far more often, I did my research on-line. As a result, I’ve now become a bit of a connoisseur of treaty databases. For years, a new major, multilateral treaty meant a new web-site dedicated to that treaty, which invariably includes its text and other relevant documentation (Final Acts, Records of the Meeting of the Parties, etc.). Bilateral treaties have long been much harder to track down. Today, however, States and International Organizations (IOs) are increasingly making all their treaty commitments publicly available on the Internet. In some cases, these treaties are organized in multiple ways, not just chronologically, but also by party, specific treaty features, or even, in a few cases, with full-text search capabilities. As a result, almost every treaty now ends up on a web-site somewhere. This development is a welcome one for both practitioners and scholars. Practitioners can now easily access texts that may implement the relative rights or duties of their clients (whether States, IOs, corporations or individuals) while scholars can get a better sense of the full panoply of modern treaty practice, whether for purposes of isolating specific practices or testing propositions as part of the new empiricism in international law.

In a future post, I plan to offer my unabashed (but admittedly unscientific) review of some of the major treaty databases, including the good, the bad, and (sometimes) the ugly. For now, I wanted to pass along a listing of public treaty databases, figuring folks might appreciate having them all collected in one locale.  I’ve not listed databases where you have to pay to get the treaty text (I’m looking at you IMO) because I question why a treaty text negotiated among nation states cannot be publicly available at least in some form on-line.  I’ve also limited my listing to those sites in English, not because they’re better, but because my facility in non-English texts is less than ideal.  I would, however, welcome comments on additional databases with which readers are familiar in the hopes that this post might become a common repository for those interested in doing treaty research of one form or another. Following the jump, I’ve listed alphabetically (and with hyperlinks!) 24 treaty databases readers may wish to consider visiting in their future practice or research:

Garzon Acquitted in Amnesty Case (Updated)

by Kevin Jon Heller

It won’t save his job, for reasons Julian mentioned a week or so ago, but it’s still good news:

Spain’s top court acquitted renowned judge Baltasar Garzon on Monday of abuse of power by trying to investigate Franco-era atrocities, in a case that exposed deep wounds dating back to the civil war.

Six members of the seven-strong Supreme Court panel came out in favour of acquitting the 56-year-old, clearing a major obstacle in Garzon’s efforts to revive a career which has been stalled by a string of court cases.

Garzon was accused of violating an amnesty by trying to investigate the disappearance of some 114,000 people during the 1936-39 Civil War and General Francisco Franco’s dictatorship that ended in 1975.

Garzon had argued that the atrocities were crimes against humanity and not subject to a 1977 amnesty voted through by parliament.

The court ruled that his decision to launch the probe was “a mistake” since there needed to be a suspect still alive, but that the move did not constitute an abuse of power.

“It is not possible in our procedural system to open an inquiry without the final goal of imposing a penalty,” the court wrote in its ruling.


The court had agreed to try Garzon in a suit brought against him by two right-wing groups, despite a call from Spain’s public prosecutor for the case to be dismissed.

The two-week trial heard testimony from 12 descendants of people killed during the Civil War, who say their relatives lie in mass graves.

One witness, 75-year-old Olga Alcega, told the court how her grandfather was shot dead by Franco’s forces in 1936.

“Fear reigned this country. Nobody dared to speak out, it is up to us, the grandchildren of the victims who dare speak,” said Alcega, who attended the hearing dressed in black.

The origins of the case — and the public prosecutor’s stance — tells you all you need to know about its merits.  Whether international law permits amnesties for serious international crimes is a difficult question, but there was no justification whatsoever for prosecuting Garzon for investigating such crimes.

Choice-of-Law Clauses in European Sovereign Debt

by Kenneth Anderson

All is proceeding as my colleague Anna Gelpern has foreseen. Indeed. Years ago, she mentioned to me in passing that the markets seemed remarkably unaware, or anyway remarkably sanguine, about the question of whether local law (e.g., Greek law) or foreign law (e.g., English law) governed as the choice-of-law clause for the vast tonnage of European sovereign debt.  Today, we find the Greek government passing retroactive laws imposing collective action clauses and aggregation mechanisms on the very large proportion of its sovereign debt governed by Greek law.

Was this possibility priced into the bonds?  Or correctly priced-in? I myself find it hard to believe that it was, though without any evidence to speak of. But there are two excellent papers on these topics by Stephen Choi, Mitu Gulati, and Eric Posner that bear reading.  The first, last updated in March 2011, is “Pricing Terms in Sovereign Debt Contracts: A Greek Case Study with Implications for the European Crisis Resolution Mechanism”; the second, posted November 2011, is“Political Risk and Sovereign Debt Contracts.” (Thanks to commenter from my last sovereign debt post for reminding me of these.)

But one of the reasons for my (unsupported) intuition about pricing choice-of-law terms in European sovereign debt is simply my perception that the market (up until the sovereign debt crisis hit the newspapers) consisted of people for whom the issue was fundamentally interest rate risk, not credit risk.  So I was interested to see this post today at Zerohedge, attributed to Hypo Capital Management.  Ordinarily, I find Zerohedge a bit too edgy and conspiracy-theory oriented for my taste, but if the folks in this guest post have done the work they report here, I think it is quite interesting and important.

HCM say they have managed to walk through a sample of individual sovereign debt issuances, looking at debt covenants and choice-of-law clauses particularly, comparing local law and foreign law issuances.  They then plot these as yield-to-maturity against maturity, separating the local and foreign law-governed bonds to see whether there is a separation, for Greece, Italy, and several others.  Thus:

We did the unthinkable, read the unreadable and made it back alive to tell the tale: we ploughed through all of the individual bond prospectuses of our favorite list of countries in peril and actually found a lot of useful information for the investor. Given that the sovereign bonds of the Eurozone used to be looked at as riskless assets, it is safe to assume that the exercise hasn’t been done by a lot of investors on a regular basis. Judging by the difficulty to even obtain the information, both the interest of investors to obtain it and that of issuers and underwriters to provide it has been and remains extremely limited. [Emphasis added]

Well, good for them.  (I’ve since spoken with some market friends who tell me that others are busily doing the same exercise, but I don’t know what conclusions others have reached and haven’t had time to look.)  The countries they looked at were Greece, Portugal, Italy, Austria, Hungary, and Spain.  And their conclusion is, excepting Greece, there remains a potentially significant mis-pricing of sovereign debt, because prices continue to reflect the assumption that there is no important divergence created by choice-of-law clauses in the debt.  Which is to say, no political-legal risk in the countries listed above, apart from Greece, running to debt governed by local law rather than foreign law.  Which is also to say, the assumption of the markets continues to be that (excepting Greece) pari passu means pari passu:

In our view, the state of the crisis warrants a broad-based significant markup for investor-friendly prospectus language and we see trading opportunities in most of the countries we analyzed …. Establish selective long/short pair trades in maturity-matched foreign/local bonds, or go long foreign law bonds and hedge via CDS.

I have not tried to reproduce their graphs here; you can see them at Zerohedge.  Their broader comment is worth reproducing, however (emphasis added):

Relative illiquidity and low issuance sizes distort yields and spreads. Investors traditionally shunned foreign law bonds and piled into local law issues. This may seem puzzling at first glance, given the duration and severity of the crisis. We attribute this to the investor base: their thinking remains entrenched in traditional categories, namely interest rate risk as opposed to credit risk. Only when the threshold is clearly crossed -as in the case of Greece- does duration-based pricing make way for default-based pricing and a different investor base takes over. When Greece lost its last IG rating, it disappeared from the universe of EZ government bond managers and entered the realm of HY bond investors. Thus credit criteria began to matter and were being priced in. In our view, the state of the crisis warrants a broad-based significant markup for investor-friendly prospectus language and we see trading opportunities in most of the countries we analysed.

I am not sure I understand – or agree – with all their thinking here, however.  They say that investors shunned foreign law bonds and instead bought local law bonds.  Is that what the evidence (see their charts at ZH) or their deductive argument suggests?  It seems to me they argue that investors had reason to be, and in fact were, indifferent as between legal regimes governing the bonds.  That does not alter the conclusion that there might well be a mis-pricing opportunity as between foreign and local law bonds, but I don’t see that it arises strictly from a preference for one over the other, rather than indifference.