[Samantha Besson is a Professor of Public International Law and European Law, University of Fribourg and Fellow of the Wissenschaftskolleg zu Berlin]

I would like to start by thanking Dov Jacobs and the Leiden Journal of International Law for organizing this on-line symposium on my extraterritoriality piece, and, of course, for agreeing to publish the article in the first place. Many thanks also to Professor Marko Milanovic and Professor Cedric Ryngaert for their generous comments and not least for taking the time to deliver them at this busy time of the year.

In this brief reply note, I will start with Professor Ryngaert’s comments and then turn to Professor Milanovic’s.

Professor Ryngaert’s main critique is that the normative dimension of jurisdiction as I understand it is difficult to pin down (see also Professor Milanovic on its “vagueness”) and in particular to distinguish from mere coercion. I agree that it is a difficult element to grasp, but not less difficult than the concept of jurisdiction itself. Reducing jurisdiction to coercion by virtue of the sheer complexity of its normative dimension amounts not only to choosing the easy route but, as I have argued, a misguided approach to authority and hence to the normative relationship that underlies any human right. In fact, Ryngaert’s own work on the issue makes me believe he agrees with this normative understanding of jurisdiction. Further, the examples given by Ryngaert in order to show how difficult the distinction between coercion and authority is actually dilute the normative test by not focusing on the normative subjects of the laws enforced (and on human rights-holders as a result) and hence by avoiding the reasons that apply to them and not to others. Of course, Ryngaert is right: there will inevitably be a human rights protection gap and it is frustrating, but we know that gap in the context of democratic accountability for international action as well. As a matter of fact, I argue in the article that the tension this gap creates between international or European and domestic human rights law has proven beneficial –slowly certainly, but surely.  (more…)

[Marko Milanovic is lecturer in law at the University of Nottingham School of Law.]

It is a pleasure to participate in this discussion organized by the Leiden Journal of International Law and Opinio Juris, and to comment on Professor Besson’s interesting article, which I enjoyed reading. Not to beat around the bush, I (very amicably!) disagree with much of Professor Besson’s article, just as much as she disagrees with much of what I wrote in my recent book on the topic (discussed here on Opinio Juris and at EJIL: Talk!). So there. Let me try to explain why.

Professor Besson’s main claim is that prior scholarship on the ECHR’s extraterritorial application, most of it very critical of the European Court’s case law, has not given serious thought to normative considerations that underpin the issue, ‘except for vague and often misleading gestures to the  universality of human rights that allegedly requires their extraterritorial application.’ Generally speaking, in Besson’s view that scholarship is under-theorized and the vague references to universality fail to account for the relational nature of rights and obligations under human rights treaties. To remedy that, the ‘article endeavours to bring some normative human rights theorizing to bear on the ECtHR’s recent practice on extraterritoriality [and] hopes thereby to provide a different reading of the Court’s case law and show that it has been wrongly depicted by some authors as fragmented and even contradictory.’  (more…)

[Cedric Ryngaert is an Associate Professor at KU Leuven and the University of Utrecht]

Samantha Besson has provided a fine normative account of the extraterritorial application of the ECHR. At the same time, she believes that this account may well offer a rationalization of the string of controversial ECtHR decisions in this matter. Besson’s argument may or may not have explanatory power as regards the ECtHR case-law, but what is sure is that the Court will be happy to hear that, as far as extraterritoriality is concerned, it can at least count on some academic supporters.

I concur with Besson’s analysis in many respects, but in the interest of the discussion I would like to elaborate on some points of disagreement.

In my view, that which Besson has added to existing analyses of extraterritoriality is the normative dimension of the concept of jurisdiction, as the third constitutive element of jurisdiction, apart from effective power and overall control. Drawing on legal theorist Joseph Raz’s writings, Besson submits that jurisdiction, qua de facto authority, ‘amounts to more than the mere exercise of coercion or power, as a result: it also includes a normative dimension by reference to the imposition of reasons for action on its subjects and the corresponding appeal for compliance (e.g., through giving instructions)’. Further on in her article, drawing on theorists of democracy, she cites the ‘all-subjected principle’, which ‘requires actual normative subjectedness and not only affectedness’. (more…)

[Mónika Ambrus is an assistant Professor at the Erasmus University in Rotterdam]

The interpretation of the expression ‘members of the group’ in the different actus rea under Article 2 of the Genocide Convention through which genocide can be committed as well as that of ‘racial, ethnic or national origin or religious affiliation’ in the chapeau of the same article essentially boils down to who can be seen as victim of genocide (how the protected groups and their members can be identified). As simple an exercise this might seem to be, both case law and scholarly discussion, including this online symposium of the Leiden Journal of International Law, have shown that this is, indeed, not the case. Two main reasons could be identified underlying the different positions: (1) the one relates to the dimension one focuses on in the definition of genocide and the conceptualization of the relationship between the two dimensions, and (2) the other concerns the question of interpretation and the role of the judiciary. (more…)

[Frederic Mégret is an Associate Professor of Law and the Canada Research Chair on the Law of Human Rights and Legal Pluralism, at  McGill University]

Monika Ambrus offers a compelling treatment of the question of what constitutes genocide and persecution as a crime against humanity relying on the human rights law of discrimination to reinforce the case that both protected groups and the definition of who belongs to them should be seen as subjective questions, focusing on the state of mind of the perpetrator, rather than objective as objective issues. In that, she suggests that it is time to move beyond international criminal courts’ constant indecision between an objective and a subjective approach, and to more resolutely move towards the latter. I could not agree more. I note also that in using international human rights law to make a larger point about international criminal law (and, one might hope, vice versa) she does a praiseworthy job of breaking barriers between sister disciplines that have no reason of standing wholly apart.

In this short reaction, I will start not from the case law as Ambrus does, but from some of the underlying ambiguities of the concepts of groups, and how these were bound to create problems for the Law that end up telling us something about the enterprise of international criminal justice.  In that respect, I want to help contextualize Ambrus’s arguments in some of the challenges of post-modernizing an international legal project whose structures often remain embedded in 19^th Century thinking. (more…)

[William Schabas is professor of international law at Middlesex University in London]

This article is about the fine points of how we construe a legal text adopted through a complex process of negotiation more than sixty years ago. The post-Second World War codification of genocide is notoriously narrow in scope. The reasons are relatively easy to explain.

At Nuremberg, the four ‘great powers’ had been nervous about their potential liability for crimes against humanity because of the persecution of minorities for which they were themselves responsible within their colonies or inside their own borders. For purely selfish reasons, they insisted that crimes against humanity be linked to aggressive war, failing which they would not be deemed offences at international law. In that way, Nazi atrocities against Jews within Germany could be punished as crimes under international law, while segregation and lynching in the southern United States (and similar acts attributable to Britain, France and the Soviet Union) escaped the net of international criminal liability.

When these same powers concurred in the adoption of the Genocide Convention by the United Nations General Assembly two years later, they agreed to remove the perverse nexus with armed conflict for a category of atrocity crime that they understood to be much more limited in extent than crimes against humanity. This is the definition of genocide that scholars, lawyers and judges have struggled to deconstruct over the ensuing decades.

The text adopted in 1948 provides explicitly that ‘genocide, whether committed in time of peace or in time of war, is a crime under international law’ (my emphasis).  These words were necessary in order to clarify a fundamental distinction between genocide and crimes against humanity, as the concepts were conceived of at the time.  (more…)

[Dov Jacobs is the Senior Editor for Expert Blogging at the Leiden Journal of International Law and Assistant Professor of International Law at Leiden University]

Over the next couple of days, you will discover the fourth symposium published this year by the Leiden Journal of International Law in collaboration with Opinio Juris. The symposia up to now featured dynamic discussions on the pluralist or constitutionalist nature of the international legal order, different aspects of international criminal law, such as the theory of modes of liability or the “good deeds” of defendants, the use of fairness in international environmental law, the impact of the Nicaragua ICJ Judgment 25 years on, and a self-reflection on the nature of the epistemic community of international scholars. This selection is a testimony to the diversity of issues, approaches, views and, ultimately, the diversity of voices, that LJIL aims at promoting. We wish to thank Opinio Juris for providing the space to allow LJIL to move this intellectual dialogue online where it can continue to foster debate in a healthy and constructive way.

And the articles being discussed from Volume 25-4 of the Leiden Journal of International Law will we hope equally enable such debate. The first one tackles the difficult question of defining a group for the purposes of genocide, through the lens of discrimination law, and the second one revisits the normative dimensions of the traditional debate on the extra-territoriality of human rights.

The first discussion has as a starting point the Article by Monika Ambrus entitled Genocide and Discrimination: lessons to be learned from discrimination law. In her piece, the author discusses the difficulties in defining a protected group for the purposes of establishing the elements of the crime of genocide and proposes to borrow from discrimination law to overcome the traditional tension between the “objective” and “subjective” approach to this question. In response, William Schabas, from Middlesex University, suggests that the expanded scope of Crimes against Humanity since its initial (limited) definition in the Nuremberg Charter might ultimately make such discussions on the expansion of the definition of genocide irrelevant. In addition, Frederic Mégret, from McGill University, brings a welcome discussion on the origins of the definitions of groups in nineteen century racialist theories and points to the rather uneasy conclusion that by claiming to protect groups, there is a risk of objectifying them in a way that in fact perpetuates the causes for discrimination in the first place.

Beyond the specific questions raised by the article, I wonder if the comments by William Schabas and Frederic Mégret, as well as the response by Monika Ambrus, should not be taken as an invitation to re-evaluate the place of genocide in international criminal law. I think, as I have argued in the past, that we can debate whether genocide should ever have been thought of as a crime in the traditional sense, given the particular collective dimensions of the act, especially as described initially by Raphael Lemkin. If we move away from the objective approach to the definition of the group, as suggested by Frederic Mégret and Monika Ambrus, all one is left with is a subjective motive (as opposed to intent) for inflicting harm on particular persons, which begs the question of why we should punish certain motives (such as discrimination on perceived racial or religious differences) more harshly than others (say, based on the fact of being tall or wearing reading glasses). Genocide might be better understood as a social fact rather than as a crime, especially given that most conducts of genocide can be adequately covered under international criminal law by crimes against humanity, as pointed out by William Schabas.

The second discussion focuses on Samantha Besson’s article entitled The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to. In her piece, the author revisits the case of the ECHR on the extra-territorial application of human rights, and suggests that “jurisdiction” cannot be understood purely as a factual exercise of control, but includes a normative dimension that needs to be better defined. Cedric Ryngaert, from the University of Leuven, challenges the clear distinction between the factual and normative exercise of jurisdiction, by suggesting that most situations of factual exercise of power or control will also include a normative dimension. He also suggests that recourse to reasonableness might be a solution to deciding particular cases. Marko Milanovic, from the university of Nottingham, discusses a number of aspects of Samantha Besson’s article, and challenges it on a certain number of levels. He disagrees with some of her interpretations of the existing case-law, as well as her ambition to find an overarching theory to explain it. For him, the case-law can be explained through a political balance done by the Court between the protection of the interests of powerful states and the protection (and therefore) expansion of human rights. In the end, he considers that the article’s proposed approach to jurisdiction is too abstract and does not give answers for specific cases.

While I share Marko Milanovic’s assessment of the current case law as the result of political choices, I have strong sympathy for Samantha Besson’s attempt at theorizing and grounding the question of jurisdiction on sound conceptual foundations. Ultimately, it is a question of methodology and how we perceive our role as legal scholars. Law is a language that has its own logic in creating meaning and predictability. While this language can of course be discarded as a fiction, like any language, I believe that any belief in the possibility of legal science must be accompanied by adopting this fiction as a methodological starting point.

We hope you enjoy the debates, and hope they contribute to stimulate more discussion among the Opinio Juris community. We will be back next year with new symposiums to continue this fruitful endeavor. In the meantime, the Editorial Board of the Leiden Journal of International Law wishes all the readers a pleasant end of year season, and a happy new year 2013.

[Dr Michelle Foster is an Associate Professor and Director of the International Refugee Law Research Programme in the Institute for International Law and the Humanities at the Melbourne Law School.]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Both Professor Crock and Professor Kneebone, in their respective contributions, raise interesting and important questions about state responsibility in the context of burden sharing/shifting schemes.  Questions surrounding responsibility are vividly raised in the current scheme of transfer of asylum seekers from Australia to Nauru given that the Australian government is determined to maintain the position that once transferred, asylum seekers will be the responsibility of Nauru alone.  This position has been said by both the Australian and Nauruan governments to be supported by the recent passage of the Refugees Convention Act 2012 (Nauru)- an Act that for the first time in Nauruan law establishes a system of refugee status determination, including merits and judicial review.  Notwithstanding this, there is reason to believe, as does Crock, that ‘the entire scheme is a paper façade for a system that will be run by Australians and for Australia’.  The very fact that the Nauruan Immigration Regulations 2000 now recognize a special visa category entitled the ‘Australian Regional Processing’ visa supports the notion that at the very least the Nauruan government understands that it is dealing with an Australian problem.  Further, while the Refugees Convention Act 2012 is an important step in establishing a domestic system of RSD in Nauru, as the UN High Commissioner for Refugees, Antonio, Guterres, has noted recently, there is no ‘experience or expertise to undertake the tasks of processing and protecting refugees’ in Nauru.  Given the complexity of modern refugee status determination, including the hundreds of high level appellate decisions in Australia alone elucidating the key elements of the refugee definition, it is implausible to believe that Nauru- a country with a population of 9,300 people – would have the resources to make first level determinations of refugee status or to populate the new refugee status review tribunal without considerable assistance from Australia.

As Professor Kneebone rightly observes, under the principles of state responsibility, states can be jointly and severally responsible for harm.  In the present context this harm may take the form of refoulement if refugees are returned to a risk of persecution due to an inadequate status determination procedure including lack of legal representation, as well as the harm suffered by asylum seekers awaiting status determination and, subsequent to recognition as refugees, resettlement in Australia or elsewhere.

Further, Professor Kneebone notes that responsibility could also be considered at the national level, discussing specifically the duty of care owed by detaining authorities.  In this regard it is also worth noting that while the Australian government has attempted to shield the transfer to and treatment of asylum seekers in Nauru from judicial scrutiny by Australian courts by amending s 198A of the Migration Act, the High Court of Australia has displayed its willingness to scrutinize the substance- not merely form- of executive action.  In M61, the High Court rejected the Minister’s characterization of the refugee status determination system established in Christmas Island as ‘non-statutory’ and outside the operation of Australian domestic law, finding instead that the system was subject to judicial review by Australian federal courts and was required to be operated according to the rules of procedural fairness and in compliance with Australian law.  While asylum seekers have now been removed to a foreign territory- as opposed merely to an ‘excised’ territory- there may nonetheless be interesting questions around the scope of the High Court to review Australia’s actions on Nauru.

In short, Professor Crock and Professor Kneebone have raised some important questions about Australia’s responsibility- both under international and domestic law- that will continue to be debated as Australia’s policies of burden shifting continue to evolve.

Detrol

[Susan Kneebone is a Professor at Monash University]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

In her article Associate Professor Michelle Foster argues that there are limits imposed by the Refugee Convention and international law to the circumstances in which states may lawfully engage in transfer arrangements for asylum seekers, euphemistically known as ‘responsibility sharing’. In that and an earlier article,[1] to which French CJ in the High Court in Plaintiff M70 referred with approval,[2] Associate Professor Foster outlined the content of the rights to which both states who engage in ‘responsibility sharing’ must adhere. She said:

the better analysis is that the transferring state must at least consider … rights acquired by the refugee (whether or not status has yet been determined) by virtue of mere physical presence which includes non-discrimination, religious freedom, rights relating to property, access to the courts, rights regarding rationing, the right to elementary education, non-penalisation for illegal entry, freedom from constraints on movement … as well as non-refoulement.[3]

As Associate Professor Foster implies in her updated commentary of her recent article, there are few states within the region which can, or are willing to, provide these rights, in order to satisfy these standards. Associate Professor Foster explains that the new Subdivision on Regional Processing in the Migration Act makes it clear that in order to enter into a cooperative arrangement with another country in the region, Australia does not expect that the other country will adhere to the full set of rights in the Refugee Convention. She observes that Australia has thus ‘legitimated what can only be described as a responsibility-shifting rather than responsibility-sharing regime.’

In my opinion it is possible to push that conclusion and its implications further by reference to broad principles of state responsibility under international law, which have been used recently in other forced migration contexts. For example, in Rantsev v Cyprus and Russia, it was decided that there had been breaches of obligations by both Cyprus and Russia under art 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms that related to the trafficking and death of the Applicant’s daughter. Under art 12 of the International Law Commission’s (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts there is a breach of an international obligation ‘when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character’. The current evidence about the conditions in which asylum seekers are held on Nauru, including delays in establishing processing, and lack of information about ‘durable solutions’, shows that the Australian government, with the apparent acquiescence of Nauru, is creating an atmosphere of extreme uncertainty and stress, leading to incidents of self-harm and mental distress. Could this be regarded as ‘inhuman and degrading’ treatment, or even torture? Further, the principles of state responsibility establish that states can be jointly and severally responsible for harm committed under their ‘watch’. If responsibility sharing in this sense applies, might not states such as Nauru to consider their responsibility as states carefully before entering into bilateral arrangements with Australia?

Interestingly, these principles of state responsibility are recognised in the Expert Panel Report. As Associate Professor Foster correctly indicates, Australia is also ‘at risk of violating wider international human rights obligations including the Convention on the Rights of the Child’.

The issue of responsibility could also be considered at the national levels. The duty of care owed by the detaining authorities to detainees now appears to be well established in Australian law.[4] Might it be argued on tortious principles that either Australia individually or Nauru and Australia jointly owe a duty of care to the detainees on Nauru? On the facts of Ruhani v Director of Police (No 2) it was very clear that Australia controlled the circumstances of detention under the Pacific Plan #1. Under the current arrangements, it seems that Nauru has taken more control of the asylum seekers, which includes the introduction of legislation to enable processing under Nauruan law. Is this tantamount to assuming responsibility under both national and international law for the fate of the asylum seekers on its territory?

[Mary Crock is Professor of Public Law at the University of Sydney]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Although Australia identifies as a member of the United Nation’s ‘Western European and Others’ Group (‘WEOG’), it has now enacted laws that place it much more comfortably as an Asian nation. Unlike the WEOG countries, few Asian nations are party to the Refugee Convention (‘Convention’), or to any of the major human rights conventions other than the Convention on the Rights of the Child. Most countries in this region understand and (generally) conform with the non-refoulement obligation enshrined in s 33 of the Convention, but they will not entertain the notion that refugees on their territories enjoy any economic or social rights. The presence of refugees is tolerated at best. At worst they are treated as ‘simple’ illegal migrants and subjected to detention, harassment and discrimination.

Relying on the recommendations of a committee that notably did not include anyone with legal expertise, the Labor government has now moved to create a regime that Associate Professor Foster demonstrates is decidedly un-WEOG. It is squarely at odds with all but the most basic tenets of refugee and human rights law. Non-refoulement is the only principle of refugee law acknowledged in express terms. It is a regime that reifies the people in respect of whom the non-refoulement obligation is owed by denying in language that asylum seekers have any rights or agency in the protection process. The protection of affected refugees has become a privilege to be granted at the absolute (non-reviewable and non-compellable) discretion of the Minister for Immigration.

(more…)

[Dr Michelle Foster is an Associate Professor and Director of the International Refugee Law Research Programme in the Institute for International Law and the Humanities at the Melbourne Law School.]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

The need for international co-operation to address the challenge of refugee flows is uncontroversial in principle: it is recognised in the Preamble to the Convention relating to the Status of Refugees (‘Refugee Convention’), in regional refugee treaties and in the work of the United Nations High Commissioner for Refugees (UNHCR). However, too often states have relied on the notion of international co-operation to engage in what is more accurately understood as burden-shifting rather than burden-sharing arrangements. In my article I argue that while the Refugee Convention does not explicitly authorise nor prohibit the transfer of refugees between states party to the Convention, it imposes limits on the extent to which states may lawfully engage in responsibility sharing regimes. Drawing in particular on the High Court of Australia’s decision in M70/2011 v Minister for Immigration and Citizenship (‘M70’), I outline the content of the constraints imposed at international law, including the need for all parties to an arrangement to be Refugee Convention parties, and the obligation on a transferring state to ensure that non-refoulement will be respected, which in turn requires that the receiving state has an adjudication procedure in place to assess refugee status, that the receiving state guarantees access to that system, and that the receiving state interprets the Refugee Convention in a manner that respects the ‘true and autonomous’ meaning of the refugee definition contained in art 1A(2) of the Refugee Convention. In addition, those rights already acquired by a refugee by virtue of physical presence in the sending state (for example rights to education, religious freedom, and access to the courts) must be respected in the receiving state.

Since publication of this article, the Australian government has moved swiftly to implement the ‘disincentives … to actively discourage irregular and dangerous maritime voyages to Australia for the purposes of claiming protection or seeking asylum’ recommended by its Expert Panel in August 2012. In order to do so it was necessary to amend the Migration Act 1958 (‘Migration Act’) to remove the protections which the High Court relied upon in M70 to invalidate the declaration concerning Malaysia. In my view the amendments to the Migration Act effected by passage of the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (‘Act’), and the subsequent transfer of putative refugees from Australia to Nauru, place Australia at risk of violation of the Refugee Convention. Before outlining my core concerns I make the initial observation that while there is considerable emphasis on Nauru constituting a ‘regional processing country,’ there is nothing regional about the current arrangements. They are not implemented pursuant to a wider regional agreement (in contrast for example to the Dublin Regulation in Europe), nor do they entail any reciprocity since Nauru has no refugee intake other than that resulting from implementation of the Memorandum of Understanding (‘MOU’) with Australia.

(more…)

[Darryl Robinson is an Assistant Professor at Queen’s University, Faculty of Law]

This post is part of the MJIL 13(1) symposium. Other posts in this series can be found in the related posts below.

I am very grateful for James Stewart’s comments on “How Command Responsibility Got So Complicated”. Professor Stewart and I are engaged in similar projects (criminal law theory and international criminal law (‘ICL’)) and immersed in similar literature, so our discussions are always very helpful to me, even though we at times reach different conclusions. Professor Stewart raises several interesting points, and I cannot quite do justice to all of them. I offer the following thoughts on the main points.

As a preliminary point, Professor Stewart rightly notes that people at the Tribunal had done a frenzied review of the relevant literature and so were at least aware of these issues. I take that point very much. Academics are often quick to criticise courts and institutions for their alleged failures to consider this or that issue, when perhaps the relevant actors were in fact deeply aware of it but chose not to elaborate on it given the hundred other priorities they had to attend to. I also sympathise with judges, who are either criticised for failure to elaborate on theoretical underpinnings, or alternatively are criticised for their wordy, theoretical decisions. For precisely these reasons, I ‘emphatically acknowledged’ that the Tribunals were operating in a pioneering phase, dealing with countless questions and constructing doctrinal rules from diverse authorities, and hence could not give detailed consideration to every fine point.[1]

(more…)