In association with the International Commission of Jurists

International Human Rights Law

23 Jul

Outside of Kigali, no one really doubts that the Rwandan government and military have financed, supplied, and at times even directed M23's actions in the DRC. But it's still nice to see the US government acknowledging that fact: It is the first response by Washington to recent M23 clashes with Congolese government forces near Goma, the largest city in the DRC's...

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21 Jul

[Solon Solomon will join King’s College of London, Dickson Poon School of Law as of September 2013, and Jackson Nyamuya Maogoto is a Faculty member of the University of Manchester, School of Law.] Much has already been written on the Comoros referral to the International Criminal Court (ICC) in light of the Mavi Marmara incident (EJIL:Talk!, Opinio Juris, Human Rights Blog and Dov Jacobs Blog). The referral while premised on a legal footing arguably has a second facet which is significant—political. It is as been noted elsewhere (EJIL:Talk!) that this was the first case where an African state referred a non-African state to the Court. The political parameter aside, the Comoros referral introduces two important doctrinal issues which pervade the discussions of this referral. These are article 12(2) of the Rome Statute regarding vessel jurisdiction and the legal discourse around the axiom that all State Parties can refer to the Court possible crimes perpetrated on the territory of a State Party. The authors’ assertion is that the two spectra have wider implications for future cases and thus their elaboration is essential in the realm of the Prosecutor’s response to the Comoros referral. As far as jurisdiction is concerned, we add our voice to authors who have so far who have held this is asserted. (See EJIL:Talk!, Opinio Juris and Human Rights Blog-spot) In this particular piece we would like to argue that such an assertion is de lege lata and not necessarily the case de lege ferenda. The assertion of jurisdiction derives from article 12(2)’s grammatical reading. However it is imperative to bear in mind that since the Rome Statute is a negotiated treaty, it is subject to wider reflection other than the narrow confines of the black letter provision. In this regard we aver that as a treaty, the Vienna Convention on the Law of Treaties (VCLT) is at play and in this regard invite consideration that the treaty provisions as provided for in the VCLT should be read in their contextual and historical depth, including their negotiation history and the volition of the parties. As such, there are elements that accompany the Rome Statute provisions on vessel jurisdiction which while not embedded in the wording of the provision itself, still constitute part of its essence. The Rome Statute provision was drafted along the lines of article 91 of the UN Convention on the Law of the Sea (UNCLOS). The latter, echoing a strong jurisprudence and treaty tradition stipulates and favours the notion that there must be a genuine link between the flag state and the vessel. This genuine link requirement is critical. While in some instances judicial bodies may have appeared reluctant to assert it, the reason was not its denial, but judicial and academic fears that a strict diligence to the principle would eventually preclude the forging of any nationality bonds, a far worse scenario. In the MV “Saiga” (No.2) case, the International Tribunal on Law of the Sea expressly stated that the role of the genuine link requirement is to secure more effective implementation of the duties of the flag state. UNCLOS does not envision an arrangement where states just confer nationality to ships and then are not at all engaged in their activities. Nationality is regarded as having a functional character. States try to protect social bonds of attachment against mere formal nationality imposed by the technicalities of law. This functional inquisition is evident in diverse fora. For example in the case of UN sanctions, such as those against Serbia and Iran, the relevant Security Council Resolutions considered the nationality of the vessel based on ownership or contract terms, regardless of the flag under which the ship may sail. (see UN SC Res 787 (1992) and UN SC Res 1929 (2010)). Essentially then, Article 91(1) of UNCLOS should be read in conjunction with article 94, in a way that the exercise of effective jurisdiction over the vessel constitutes one of the necessary conditions for granting nationality. It is thus too long a legal bow to draw that with embryonic jurisprudence on the subject, the ICC will have in mind previous positions and thus reflect on its article 12(2) vessel jurisdiction as not only encapsulating the straight line reading on flag jurisdiction but also the matter of a genuine link with the vessel particularly given the nature of its mandate. In the case of Comoros, the Mavi Marmara was Comoros flagged just a week before the flotilla incident.
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20 Jul

As I was checking my news feeds on Google News, I came across this: The snail photo is not actually part of the Washington Post article. So does that mean Google shares my concern with Libya's endless stall tactics?...

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19 Jul

Well, not really. But that's the unintended consequence of yesterday's awful decision in US v. Sterling, in which the Fourth Circuit held that James Risen could not rely on journalist's privilege to avoid testifying against James Sterling, whom the government believes leaked classified information to Risen. According the court, the government is entitled to Risen's testimony, because he is the...

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19 Jul

[Chelsea Purvis is the Robert L. Bernstein International Human Rights Fellow at Minority Rights Group International (MRG).  Opinions expressed here are her own and do not necessarily reflect those of MRG.] The African region has long been perceived as a recipient, not a creator, of international human rights law.  But over the past decade, African institutions have enshrined emerging human rights norms in treaties and issued ground-breaking jurisprudence.  Africa should be recognized as a generator of innovative human rights law.  Human rights institutions outside the continent, however, have largely failed to engage with African-made human rights law. An example of innovative African law-making is the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), which came into force in 2005.  The Maputo Protocol builds on existing women’s rights law: Like the 1979 Convention on the Elimination of All Forms of Discrimination against Women, the Maputo Protocol obligates States parties to combat discrimination against women in all areas of life.  And like the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, the Maputo Protocol prohibits physical, sexual, and psychological violence against women.  But the Protocol goes further than these earlier treaties.  For the first time in any international instrument, it prohibits verbal and economic violence against women. The Maputo Protocol contains notable protections for women’s reproductive rights, including an affirmative right to abortion in certain circumstances.  It also takes a conceptual leap forward in its treatment of culture and tradition.  Many sources of women’s rights law treat African cultures as uniformly negative for women. The Maputo Protocol, as Johanna Bond has argued, adopts the more nuanced approach advanced by scholars from the global South.  It recognizes the positive role culture can play in women’s lives but enshrines a woman’s right to shape her culture.  The Protocol also recognizes that certain culturally-authorized practices or beliefs are necessarily harmful to women—it prohibits, for example, female genital mutilation and exploitation in pornography. Another ground-breaking source of African human rights law is a 2010 decision by the African Commission on Human and Peoples’ Rights. 
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18 Jul

In the wake of the Pre-Trial Chamber's categorical rejection of Libya's admissibility challenge, the Libyan government asked the Appeals Chamber to suspend its obligation to transfer Saif Gaddafi to the ICC pending its appeal of the decision. The Appeals Chamber has now rejected that request and ordered Libya to surrender Saif to the Court. Here are the critical paragraphs of its decision: 24. Libya...

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18 Jul

[Tendayi Achiume is the Binder Teaching Fellow at the UCLA School of Law.] According to the United Nations High Commissioner for Refugees (UNHCR), xenophobia is among the greatest contemporary challenges to the protection of refugees and other forced migrants globally. The May 2008 violent attacks against foreign nationals in South Africa are among the most striking contemporary manifestations of this problem. During a two-week period of violence, media reported door-to-door searches in townships and inner cities as inflamed crowds attempted to purge neighborhoods of foreign nationals they blamed for high rates of crime and job scarcity, among other things. These attacks left 62 dead, over 600 injured, and displaced more than 100,000 people—many of whose homes and property were looted in the process. Refugees were among the most severely affected. Although the scale and duration of the attacks in South Africa were remarkable, xenophobic discrimination is a serious problem in contexts as disparate as Greece, France, Ukraine, Israel, Libya and Egypt, where it threatens the lives and livelihoods of refugees and other forced migrants. In this post I briefly describe UNHCR’s response to this problem, which has focused on advocacy to punish hate crimes and to promote tolerance. While recognizing the importance of these measures, I argue that on their own they are inadequate. Engaging structural socio-economic concerns such as inequality and poverty is vital to successfully combating xenophobia, and must form a central part of UNHCR’s response. International law does not define the term “xenophobia”. UNHCR posits that xenophobia may include “discrimination, incitement to discrimination, as well as acts of violence or incitement to violent acts on the grounds of race, colour, descent, or national or ethnic origin, including in combination with other grounds, such as religion, gender or disability.” In the last decade or so, UNHCR has undertaken a range of global policy and advocacy initiatives to combat xenophobic discrimination. The most comprehensive articulation of UNHCR’s policy points to the International Convention on the Elimination of all forms of Racial Discrimination (ICERD) as the legal anchor at the international level for fighting xenophobic discrimination. In a forthcoming article in the Georgetown Journal of International Law’s Spring 2014 volume, I conduct a novel and in-depth analysis of UNHCR’s use of international human rights to fight xenophobic discrimination. But here I wish to highlight a pressing concern with the evolution of UNHCR’s policy in this area. A review of UNHCR’s approach reveals two broad categories, both of which find firm support in ICERD. The first focuses on punishing perpetrators of discriminatory acts explicitly motivated by xenophobic prejudice. Examples include advocacy to promote and enforce hate crimes legislation, to monitor signs of prejudice, and to track and publicize hate crimes prosecutions. The second category of strategies focuses on the use of human rights education initiatives and public awareness campaigns to fight prejudice and promote tolerance and diversity. Punishing perpetrators and promoting tolerance and diversity are important strategies for protecting refugees from xenophobia. But on their own, these strategies are unequal to their task.
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17 Jul

[Daniel Seah is a PhD candidate at the Faculty of Laws, University College London.] Has the Association of Southeast Asian Nations (ASEAN) finally had its own post-ontological moment?  No longer are we condemned to participate in the banality of questioning ASEAN’s legal existence as an international organization (IO). After all, since 2008, its international legal personality was expressly conferred in Article 3 of the ASEAN Charter, a constituent treaty.  Now is the time to ask a more useful question: what are the legal consequences that flow from ASEAN exercising its international legal personality? Nowhere is an answer to this question more clearly thrown into relief than in the conferral of competences by member States upon ASEAN, which is the focus of this post. IOs are not created equal; there is a great variety in their functions and objectives. Establishing the objective international legal personalities in these IOs is the easy bit. More difficult are the issues that bear on how the legal personality has been exercised by an IO; and what legal consequences arise for the IO and its member States, as separate legal persons. Because an IO at international law is a legal person, it (or its bodies) can act on behalf of member States although some of these acts are not expressly conferred in the constituent treaty - I call these “implied conferrals”. The word “conferral” is not a legal term of art. It had been variously defined as “capacities” (CF Amerasinghe) to indicate the consequences of international legal personality; “international delegations” (Curtis Bradley & Judith Kelley) to explain a range of legal (and non-legal) decision-making exercised by IOs; or “competences” on which the European Union (EU) is authorised to act in particular areas such as the common commercial policy. In this post, I instance the early practice of the ASEAN Intergovernmental Commission on Human Rights (AICHR) as an example of implied conferrals.
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15 Jul

Ah, hypocrisy -- thy name is the United States. First up, US anger at Israel for not supporting a lawsuit concerning allegations that the Bank of China laundered money for Hamas and Islamic Jihad: Israeli Ambassador to the US Michael Oren was called back to Israel to take part in an emergency meeting convened this weekend by Prime Minister Benjamin Netanyahu so that Oren could pass on  messages...

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15 Jul

[Patricia Tarre Moser is an Attorney at the Inter-American Court of Human Rights. The views expressed here are her own.] The international law doctrine of sovereign immunity has proved to be a powerful obstacle to effective enforcement of international human rights.  Domestic and international courts have begun to carve out some exceptions to sovereign immunity in individual cases, but as the ICJ made clear in the Ferrini case, sovereign immunity continues to protect states from civil proceedings -- even in cases where jus cogens violations take place. But what if a state, as a counter-measure, withheld sovereign immunity from another state that engages in a jus cogens violation?  In a recent article I propose that, in certain circumstances, for example a civil case brought in a State A for torture violations in State B, State A's courts should be permitted to withhold sovereign immunity from State B as a form of countermeasure against State B. The objective of the countermeasure must be to persuade the wrong-doing State to cease the violation and/or make reparations. The non-recognition of state immunity as a countermeasure could contribute towards this goal. Even if the hypothetical national court’s orders cannot be enforced against the wrong-doing State due to immunity from enforcement measures, the judgment itself serves as reparation to the victims. Using torture as an example, my proposal works as follows: after the torture victim files a claim against the State B before a Court of State A, the latter has to undertake a prima facie analysis of whether the alleged victim was subjected to torture and whether the torture was attributable to State B. If so, State A’s Court has to determine whether the non-recognition of State B’s immunity would be proportionate to the injury and to the gravity of the violation that caused the injury.  Additionally, while assessing the proportionality of the measure, the Court would need to take into account the rights of all parties involved: the victim, the State A and State B.
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11 Jul

[Scott Robinson is a recent J.D. graduate from the University of Western Ontario, Faculty of Law] In at least seventy-six states it remains illegal to engage in same-sex conduct; in at least five of these, it still attracts the death penalty. It is no secret that, at the hands of both state actors and private individuals, LGBTQ persons around the world continue to face widespread and often systematic discrimination on account of their sexual orientation and gender identity. Further, nowhere within international human rights law is sexual orientation or gender identity explicitly codified as prohibited grounds for discrimination. While “great weight” should be ascribed to the views of human rights treaty bodies that have read-in protection over the years, such views remain but non-binding recommendations directed at states, tied to existing treaties silent on LGBTQ rights. Indeed, it is clear that international law is utterly failing to address “one of the great neglected human rights challenges of our time”. A robust, comprehensive LGBTQ treaty is needed—perhaps a “Convention on the Elimination of All Forms of Discrimination against LGBTQ Persons”. Treaty-precedents like the CERD and CEDAW (especially when viewed in light of more recent human rights treaties), demonstrate that an LGBTQ non-discrimination treaty is possible in form. Documents like the Yogyakarta Principles, certainly demonstrate that a pointed LGBTQ treaty is possible in substance. The real question, however, is how to achieve a treaty anytime in the near future, given the fierce resistance to LGBTQ rights witnessed to date, particularly within the UN system. There exists no General Assembly Resolution or Declaration on LBGTQ persons, nor is one likely any time soon (any purported attempts at such having essentially been abandoned in the past). Perhaps more formidably, actors such as the Holy See and Islamic and African blocs of states have balked at the very notion of LGBTQ rights at every possible opportunity at the UN—events at the Human Rights Council as recently as a few weeks ago stand as a testament to this continued opposition. At this point in time, it seems as though the only viable option for achieving an LGBTQ treaty is by engaging in what has become known as the “Ottawa Process” for treaty negotiation and adoption.
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