In association with the International Commission of Jurists

Regions

02 Sep

As readers are no doubt aware, Libya has descended into absolute chaos. As of now, there is quite literally no functioning central government: Libya’s newly elected parliament has reappointed Abdullah al-Thinni as prime minister, asking him to form a “crisis government” within two weeks even as the authorities acknowledged they had lost control of “most” government buildings in Tripoli. Senior officials and the...

|
31 Aug

As the military situation in eastern Ukraine become more violent with the incursion of Russian troops, Vladimir Putin has called for talks to determine the statehood of eastern Ukraine. The Interpreter, a website that translates and analyzes Russian media reports, states that in an interview on Russian television Putin said: We must immediately get down to a substantial, substantive negotiations, and...

|
27 Aug

On the record, US officials invariably defend even the most indefensible IDF uses of force in Gaza, most often parroting the Israeli line that the IDF does everything it can to spare civilian lives and that Hamas's use of human shields is responsible for any innocent civilians the IDF does kill. When speaking anonymously, however, those same officials tell a very different...

|
21 Aug

Last November, I wrote a post entitled "Terrorism Is Dead, and Britain Has Killed It." I chose that title because I couldn't imagine a conception of terrorism more absurd than the one argued by the British government and accepted by a Divisional Court: namely, that David Miranda's mere possession of documents illegally obtained by Edward Snowden qualified as terrorism under the Terrorism Act 2000. I obviously...

|
19 Aug

[caption id="attachment_31019" align="alignnone" width="300"] Map credit: Wikimedia Commons via Radiolab[/caption] Radiolab has  posted an informative and entertaining essay entitled "How to Cross 5 International Borders in 1 Minute without Sweating." It describes the intertwined municipalities of the Dutch town Baarle-Nassau and the Belgian town Baarle-Hertog. Here's the evocative description by Robert Krulwich of Radiolab: The hunky yellow bit labeled "H1" (for Hartog)...

|
11 Aug

[Lucas E. Barreiros is a Professor of Public International Law and Coordinator of International Human Rights Law Masters Program at the University of Buenos Aires.] While much attention has been paid to the differences and similarities between the European Court of Human Rights (ECHR) and the Inter-American Court of Human Rights (IACHR) as well as to the dialogue between them [see here, here, here and here for examples], none of that attention has been devoted to comparing the one aspect of their work that best and most synthetically captures all that sets them apart – that is, the doctrines of “margin of appreciation” and “control of conventionality”. It is proposed here that more attention should be paid to the explanatory power of these two doctrines in understanding the different identities and diverging trajectories of the ECHR and the IACHR. As known, the “margin of appreciation” doctrine was developed by the ECHR starting in its Handyside v. United Kingdom judgment. It has been understood to refer, as pointed out by Steven Greer, to “the room for manoeuvre that the Strasbourg institutions are prepared to accord to national authorities in fulfilling their obligations under the European Convention on Human Rights”. The rationale for allowing this margin of appreciation, as pointed out by the ECHR in Handyside when referring to the conditions set out in the Convention to lawfully restrict the freedom of expression, is that national authorities, “by reason of their direct and continuous contact with the vital forces of their countries (…) are in a better position than the international judge to give an opinion on the exact content of these requirements”. For its part, the “control of conventionality” was first mentioned by the IACHR in its judgment in the Case of Almonacid Arellano et al v. Chile.The IACHR held that:
“(…) domestic judges and courts are bound to respect the rule of law, and therefore, they are bound to apply the provisions in force within the legal system. But when a State has ratified an international treaty such as the American Convention, its judges, as part of the State, are also bound by such Convention. This forces them to see that all the effects of the provisions embodied in the Convention are not adversely affected by the enforcement of laws which are contrary to its purpose and that have not had any legal effects since their inception. In other words, the Judiciary must exercise a sort of “conventionality control” between the domestic legal provisions which are applied to specific cases and the American Convention on Human Rights. To perform this task, the Judiciary has to take into account not only the treaty, but also the interpretation thereof made by the Inter-American Court, which is the ultimate interpreter of the American Convention.” (emphasis added).
It should be noted that there are two components to the doctrine – one deals with the responsibility of national authorities to ensure that the application of national legislation does not adversely affect the rights under the American Convention of Human Rights; the other, however, is the direct opposite of the “margin of appreciation” as it leaves no room for national authorities to conduct their own assessment and requires them to apply the interpretation of the IACHR.
|
09 Aug

Kirsty Brimelow QC, the chair of the Bar Human Rights Committee (BHRC) -- and a colleague of mine at Doughty Street Chambers -- has responded to my position on the 2009 Declaration, as recounted by Joshua Rozenberg in this Guardian article. Here is the relevant paragraph: Neither Rozenberg's opinion piece nor academic he relies upon, Kevin Heller, cite the text of the 2012 decision in support...

|
08 Aug

[David L. Attanasio is a professor of law at the Jorge Tadeo Lozano University in Bogotá, Colombia, and Doctoral candidate in philosophy at U.C.L.A.] The Inter-American Court of Human Rights—the highest authority dedicated to enforcing international human rights law in the Inter-American system—has received deep praise for its influential and innovative reparations decisions (.pdf). Nonetheless, its more innovative reparations measures suffer from a serious problem of legitimacy, in that they do not seem to respond to the human rights violations that the Court identifies. Specifically, in the vast majority of its reparations decisions since 2001, the Court has ordered what I call extraordinary reparations, measures such as human rights training, changes to law and policy, improvements in the justice system, and provision of education, water, food, or public services (preceding links to .pdfs). These typically are in addition to compensation payments and other measures explicitly designed to eliminate the violation’s consequences. Although the Court has not adequately defended its practice of ordering extraordinary reparations, several potential bases of legitimacy may justify its principal decisions. Some extraordinary reparations are disguised orders to cease violations, others seek to repair damage to communities, and some aim to repair victim trust in the state. Despite the importance of its innovations, the Inter-American Court has not explained why it may order extraordinary reparations, particularly when it has already ordered measures supposedly sufficient to eliminate the effects of past human rights violations. For example, following a forced disappearance (.pdf), the Court ordered monetary compensation for the victim’s family supposedly equivalent to the harm suffered, but went on to order, among other measures, a literacy program for the victim’s mother. The American Convention on Human Rights empowers the Court to order reparations only for identified human rights violations, not to order any measure it thinks might make for a better state or for a more human rights-friendly social environment. It is not an international legislature. However, extraordinary reparations, which often appear aimed at changing the victim’s circumstances, apparently lack any “causal nexus” (.pdf) with a past human rights violation. As states have complained (.pdf), they do not seem to address the violation’s effects, as other reparative measures such as restitution or compensation are supposedly sufficient for that objective. The Court lacks explicit principles in its jurisprudence sufficient to clarify when and why extraordinary reparations might be legitimate.
|
08 Aug

Assuming there really was authorization from the Iraqi government, I don't have any doubt that the U.S. has the right under the international law to launch new airstrikes in Iraq.  But the domestic authority for the U.S. airstrikes is much more murky, and, as Ilya Somin argues here, Congress might need to authorize continuing military action. Jack Goldsmith goes through the domestic legal bases...

|