Fuente: La Información
España, entre los primeros países que ratifica el Tratado de Comercio de Armas
13 (EUROPA PRESS) Las Cortes han ratificado este jueves por unanimidad el Tratado de Comercio de Armas, convirtiendo a España en “uno de los primeros países” que asume esta nueva regulación internacional, según ha destacado el Ministerio de Asuntos Exteriores y de Cooperación. “España muestra así su compromiso con la comunidad internacional para establecer un marco normativo internacional, jurídicamente vinculante, que regule el comercio de armas convencionales”, ha destacado en un comunicado el departamento que dirige José Manuel García-Margallo. El Tratado de Comercio de Armas establece un patrón universal basado en reglas internacionales de carácter vinculante para las exportaciones de armamento, que serán aplicadas por las autoridades nacionales de los Estados parte del Tratado. El Tratado tiene como objetivo evitar que el comercio internacional de armas convencionales deriven en actos ilícitos y violaciones de los derechos humanos. España ha participado activamente en este proceso desde su inicio, y de forma concertada con los Estados miembros de la Unión Europea. Además, impulsará “activamente” su entrada en vigor con “el convencimiento de que constituirá un instrumento fundamental para reforzar la seguridad internacional, la defensa del derecho internacional humanitario y el respeto de los derechos humanos”, destaca Exteriores en su nota. El sistema actual español es “de los más rigurosos del mundo”, subraya Exteriores. Incluye un ámbito de aplicación que abarca 22 categorías de productos de material de defensa, en lugar de las 8 recogidas en el Tratado; así como regulación sobre municiones; y sobre mecanismos de intercambio de información en el seno de la Unión Europea y en los foros internacionales de no proliferación.
Speech of Court President Spielmann
Recently, the President of the European Court of Human Rights, Dean Spielmann, held a speech in the Frauenkirche in Dresden, Germany. The speech, entitled ‘Menschenrechte in Europa – Beiwerk oder Basis?’ is now available on the Court’s website. The speech, in German, goes into the significance of the European Convention for peace in Europe. Specifically, the President – by way of examples from the Court’s case-law – went into the importance of the ECHR in transitions towards the rule of law, the protection and consolidation of democracy, and even in situations of armed conflict within which the Strasbourg system’s practical effect may be less direct in the short run, it still has protective and preventive functions. Secondly, the President also shortly went into some of the criticisms towards the Court and admonished not to lose sight of the bigger picture. Thirdly, he pleaded for ongoing dialogue with the various branches of national government. Human rights protection, was the overarching message, should never be just an accessory but rather a basis for peace and democracy.
Refining Al-Skeini v UK: The ECtHR’s Grand Chamber hearing in Jaloud v Netherlands
Published on March 7, 2014
Author: Stuart Wallace
The Grand Chamber at the ECtHR recently heard the case of Jaloud v the Netherlands. The case raises interesting issues concerning both extra-territorial jurisdiction and the obligations States owe to foreign nationals when deployed in foreign military operations. The facts are reasonably straightforward. The applicant’s son drove his car through a checkpoint without stopping in Iraq in 2004. A Dutch lieutenant at the checkpoint opened fire, hitting the applicant’s son who later died of his wounds. No weapons were found within the car. The Dutch forces there investigated the use of force and concluded that the use of force had been justified. Jurisdiction To begin with the jurisdictional issues, any hope that the question of extra-territorial jurisdiction had been settled in Al-Skeini v UK was dashed when both the Dutch and the UK, who acted as third party interveners, presented arguments that the applicant’s son was not within Dutch jurisdiction for the purposes of Article 1 ECHR when he was killed. In principle there are 2 main forms of extra-territorial jurisdiction: spatial jurisdiction, which arises when the State exercises effective control over some foreign territory and personal jurisdiction, which arises where the State exercises authority and control over an individual. In Al-Skeini v UK, the ECtHR held that the UK was obliged to provide Convention-compliant investigations into the deaths of Iraqi civilians which occurred in the context of UK military operations while it occupied Iraq. The ECtHR applied a jurisdiction model somewhere between spatial jurisdiction and personal jurisdiction by holding that jurisdiction arises when a contracting State ‘exercises all or some of the public powers normally to be exercised [by the government of the State]’, (Al-Skeini at ) and then exercises authority and control over a person. In these circumstances instantaneous acts of UK soldiers, such as shootings, automatically created a jurisdictional link to the State: the United Kingdom […] assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government […] the United Kingdom assumed authority and responsibility for the maintenance of security in South-East Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom’ – (Al-Skeini at ) The key difference between this model and standard personal jurisdiction is that where the State is exercising some public powers, the ECtHR treats the power to kill and the instantaneous act of killing as ‘authority and control’ over the individual (discussion of this here and here). Historically, the ECtHR had ruled that instantaneous acts, such as firing a missile from a plane, did not give rise to authority and control over the airstrike victims (see Bankovic and Ors v Italy and Ors). In the case last week, the States stressed that extra-territorial jurisdiction must continue to be ‘exceptional’ and confined to extremely limited circumstances and not to all foreign military operations. The UK argued that the State was only held to be exercising jurisdiction in Al-Skeini because of the unique circumstances – it had full authority and responsibility for the exercise of certain public powers, specifically maintaining security, and the deaths of the applicants’ relatives in Al-Skeini occurred in course of the UK exercising those powers. Outside of those circumstances, jurisdiction did not exist and the situation of the Dutch forces could be distinguished on many grounds. They had fewer troops deployed and they were under the operational command of the occupying powers. They had a much more limited mandate and role than the UK, with no powers of arrest or detention. The Netherlands was not an occupying power and had no role in governing Iraq. In essence, both States sought to deny that the Netherlands was exercising public powers in the same way as the UK in Al-Skeini and this jurisdiction did not arise. This is undoubtedly a myopic view of the situation. The Netherlands was clearly exercising a public power in Iraq by manning and supervising the checkpoints and training the Iraqi soldiers. Establishing checkpoints was a relevant factor in determining whether a State exercised spatial jurisdiction (Issa v Turkey at ). Supervising soldiers and manning checkpoints were, to use the terminology of Al-Skeini, ‘some of the public powers normally […] exercised by that Government’. The Netherlands also investigated the event, interviewing officers and conducting crime-scene analysis, which again would normally be carried out by a State’s government. Further, the State’s de jure mandate is of less relevance than de facto situation on the ground, which the ECtHR needs to look at in its analysis. The case will likely hinge on how broadly the ECtHR defines the idea of ‘public powers’. The States also argued that standard personal jurisdiction did not arise in this case and that such jurisdiction only arose when the State was detaining or capturing people and not when they have simply shot them. The ghost of Bankovic is clearly still haunting the court. The perverse outcome of Bankovic’s reasoning wherein a State is almost incentivised to kill to avoid having to guarantee human rights has come to the fore again. This issue has led to some serious inconsistencies in the case law in the past (there’s good analysis of this in Lawson’s chapter in margins of conflict). Comparing cases like Bankovic with Pad v Turkey (jurisdiction arose when a Turkish helicopter fired weapons near the border which killed people in Iran) and Andreou v Turkey (jurisdiction arose when a Turkish soldier fired from the TRNC in Cyprus into the Southern area injuring a civilian) reveals the inconsistencies. The ECtHR may avoid addressing this issue by focusing instead on the public powers point. Pulling back from Al-Skeini would cast the already convoluted jurisprudence on jurisdiction into further chaos, so hopefully the ECtHR will stick with it, refining rather than abandoning Al-Skeini in its judgment. Merits In Al-Skeini, the ECtHR held that any extra-territorial duty to investigate in Article 2 would have to be ‘realistic’ (Al-Skeini at ). This case questions whether the ECtHR is prepared to accept a lower standard of investigation in extra-territorial circumstances and what compromises the ECtHR is actually prepared to make for extra-territorial investigations? The procedural obligations in Article 2 are extremely difficult to satisfy in the context of active foreign military operations. With limited force number securing practical, institutional and hierarchical independence becomes difficult, analysing a crime scene in the midst of hostile forces may be impossible and ensuring a prompt investigation when multiple jurisdictions and language barriers are involved can also cause problems. In fairness the Dutch made a reasonable fist of the investigation in the circumstances. They scene was sealed, investigators arrived promptly, interviewed relevant personnel and gathered evidence. The issue of mandates raised in the arguments is perhaps the most interesting dimension of the merits. The Netherlands argued they had a limited mandate in Iraq, which limited their investigation capability. They could only investigate Netherlands troops and could not seize goods or detain people for questioning. However, investigators were able to remove both the victim’s body and the car to their base, which casts doubt on this claim. Nonetheless, limitations to the scope of a State’s mandate will clearly pose a significant problem for future extra-territorial investigations. States may even deliberately seek to curtail their mandates for extra-territorial military operations in order to avoid having to uphold procedural obligations in the ECHR. The potential scope of these obligations could be colossal. A State may be obliged to provide a Convention-compliant investigation into every single death which occurs during their foreign military operations. Where a State is exercising spatial jurisdiction, the obligation becomes even more onerous and States may have to investigate deaths perpetrated by 3rd parties also. If the ECtHR is going to develop these procedural obligations in the extra-territorial context, they will need to mitigate their effects. One solution would be to only oblige the State to investigate where there is a suspicion of a violation of IHL. Although given the ECtHR’s broader reluctance to expressly rely on IHL in its judgments this may prove fanciful. The ECtHR will need to tread carefully in its judgment and develop creative solutions to avoid placing impossible investigative burdens on the State. Both the ECtHR and States need to move beyond the debate about whether States have extra-territorial human rights obligations and the questions over jurisdiction toward determining what human rights obligations we can realistically expect States to uphold extra-territorially. Splitting the hairs of jurisdiction may prove a fruitful strategy for States in the short term, but they are beginning to look more and more like King Canute and the rising tide. The issue of extra-territorial jurisdiction during foreign military operations is not going away and the Convention’s rules, forged in fully functioning European States, are at best ill-suited to apply in the context of these extra-territorial military operations. Cases like Jaloud may be just the tip of the iceberg.
Source: Oxford Public International Law
Debate Map: Ukraine Use of Force
Last Updated: 10 March 2014
The following index maps scholarly commentary on the legal arguments regarding the public international law (and some domestic constitutional law) aspects of the use of force in Ukraine, published in English language legal blogs and newspapers, and free content from OUP’s online services. Use this map to review scholarly arguments and to keep track of which issues have been covered and who has said what. I. Overviews of Legal Issues (i) 2 March 2014 Ashley Deeks at Lawfare (asks whether Russia breached Article 2(4), whether that triggers Ukraine’s Article 51 right of self-defence, and discusses two grounds for Russia’s intervention: the protection of Russian nationals, and intervention with the consent of Ukraine’s government) (ii) 3 March 2014 Ben Saul at The Drum (covers the same ground as Deeks, but adds a conclusion that Russia has committed the crime of aggression). II. Characterising Russia’s Actions as Aggression (i) 5 March 2014 Ukraine International Law Association memo published in English on EJIL: Talk! (characterises Russia’s actions as the crime of aggression) (ii) 6 March 2014 Aurel Sari at Opinio Juris (examines Russia’s action in the light of UNGA Resolution 3314 (XXIX) on the Definition of Aggression of 1974 and the 1997 Black Sea Fleet SOFA between Ukraine and Russia) A) Legal Effects of Aggression (i) Jens Ohlin on Aggression from Cassese (Ed.) The Oxford Companion to International Criminal Justice (free content) (ii) 1997 Latvian Constitutional Court decision (with detailed analysis and English translation) from International Law in Domestic Courts (free content) (a case with echoes of the current crisis, finding inter alia that the 1940 Soviet stationing of troops in Latvia was an act of aggression and thus any territory gained thereby was not lawfully acquired) III. Possible Grounds for Legality of Russia’s Actions A) To Support Crimea’s Self-determination (See also our Syria Debate Map) (i) Stefan Oeter on Self-Determination from Simma (Ed.) The Charter of the United Nations A Commentary 3rd Ed. (free content) (ii) Daniel Thurer on Self-Determination from Wolfrum (Ed.) The Max Planck Encyclopedia of Public International Law (free content) (iii) James Crawford on Secession from The Creation of States in International Law 2nd Ed. (free content) (iv) Canadian Supreme Court decision on Secession of Quebec from International Law in Domestic Courts (free content) (v) Yves Beigbeder on Referendum from Wolfrum (Ed.) The Max Planck Encyclopedia of Public International Law (free content) (vi) 26 February 1969 Soviet proposal on definition of aggression submitted to GAOR 24th Session Supp No 20 (UN Doc A/7620) Paragraph 9 (paragraph 6 of the Soviet proposal suggests that intervention in support of self-determination is not aggression) (vii) 1 March 2014 notification in the minutes of UNSC Meeting 7124 of the Prime Minister of Crimea’s request to President Vladimir Putin to provide assistance in “ensuring peace and tranquillity on the territory of the Autonomous Republic of Crimea” (viii) 6 March 2014 Chris Borgen at Opinio Juris (on the relationship between any right to secession and the right to self-determination) B) Intervention to Protect Nationals/Self-defence (i) Georg Nolte and Albrecht Randelzhofer on Article 51 from from Simma (Ed.) The Charter of the United Nations A Commentary (free content) (ii) 1 March 2014 Russian Federation Council (upper house of parliament) resolution to use force to protect Russian forces, Russian citizens, and “compatriots” (iii) 3 March 2014 David Luban at Just Security (commenting on Russia’s 2010 Military Doctrine which declares its right to use force to protect its citizens abroad) (iv) 7 March 2014 Peter Spiro at Opinio Juris (on Russian legislation offering citizenship to Russian-speakers in Ukraine) (v) 9 March 2014 Sina Etezazia at Opinio Juris (analysis of claiming self-defence to defend nationals abroad) C) Other cases of intervention to protect nationals (i) Philip Leach on South Ossetia from Wilmshurst (Ed.) The Classification of Conflicts (free content) (ii) Angelika Nussberger on South Ossetia from Wolfrum (Ed.) The Max Planck Encyclopedia of Public International Law (free content) D) Intervention by Invitation (i) Louise Doswald Beck on The Legal Validity of Military Intervention by Invitation of the Government from Brownlie and Crawford (Eds) The British Year Book of International Law Vol. 56 (free content) (ii) Georg Nolte on Intervention by Invitation from Wolfrum (Ed.) The Max Planck Encyclopedia of Public International Law (free content) (iii) 1 March 2014 Vitaly Churkin in the minutes of UNSC Meeting 7124 (saying that Russia is responding to a request for intervention from the Prime Minister of Crimea) (iv) 3 March 2014 Chris Borgen at Opinio Juris (looking at US policy on who is the “legitimate” authority speaking for a state) (v) 4 March 2014 Daniel Wisehart at EJIL: Talk! (looks at other case studies and considers the claims of the ousted president of Ukraine and the Prime Minister of Crimea to invite Russia to intervene) (vi) 6 March 2014 Robert Chesney at Lawfare (suggesting that the question of whether Russian soldiers removing their insignia is a breach of the Geneva Conventions depends on whether you accept the argument about invitation as that affects whether this is an international or non-international conflict) (vii) 9 March 2014 Tali Kolesov Har-Oz and Ori Pomso at Opinio Juris (offering a full overview of the question of who is the legitimate authority, examining the situation where the choice is between an effective authority and a legal one) E) Other Cases of Intervention by Invitation (i) Robert Beck on Grenada from Wolfrum (Ed.) The Max Planck Encyclopedia of Public International Law (free content) (ii) ECOWAS in Liberia 1990 and Sierra Leone 1997 Karsten Nowrot and Emily W. Schbacker in the American University International Law Review 14/2 1998 (iii) Sierra Leone: 6 March 2014 Zachary Vermeer in EJIL: Talk! (compares Russia’s action in Ukraine to ECOWAS in Sierra Leone) F)Responsibility to Protect (See also our Syria Debate Map) (i) 5 March 2014 Mark Kersten at Justice in Conflict (looks at R2P angles on Russia’s actions) IV. Relevance of Ukrainian Constitutional Law (i) 5 March 2014 Stefan Soesanto at Lawfare (a five part analysis of Russia’s possible justifications focusing on Ukrainian constitutional law) (ii) 6 March 2014 Zachary Vermeer in EJIL: Talk! (looks at whether the “legitimacy” of the agent that requests intervention is a matter of domestic constitutional law or public international law) (iii) 6 March 2014 Chris Borgen at Opinio Juris (in the comments section it is pointed out that Article 73 of the Ukraine Constitution requires a referendum of the whole country for any territorial adjustment) V. Relevance of the 1997 Black Sea Fleet SOFA (i) 4 March 2014 comments from Olivier Daum on Daniel Wisehart at EJIL: Talk! querying whether the fact that Russian forces were already stationed in the Crimea alters the legal analysis (ii) 6 March 2014 Aurel Sari at Opinio Juris (looks at arguments that a “material breach” of the SOFA is what escalates this to aggression) VI. The (Ir)relevance of International Law (i) 1 March 2014 Peter Spiro at Opinio Juris (explaining that just because international law is being breached with impunity it is still relevant, in response to Eric Posner’s 1 March 2014 blog posting questioning the role of international law in the Ukraine crisis) (ii) 2 March 2014 Julian Ku at Opinio Juris (agreeing with the argument that states’ attitudes towards international law are guided by self-interest) (iii) 2 March and 3 March 2014 two posts by Chris Borgen at Opinio Juris (responding to Ku and Posner, setting out ways in which Russia employs the rhetoric of international law and arguing that international law provides a normative language that provides a context for states to assess what consensus exists among the international community) (iv) 7 March 2014 Mary Ellen O’Connell at Opinio Juris (how Russia is able to use many arguments employed by Western states to justify their interventions and violations of sovereignty) (v) 10 March 2014 Nico Krisch at EJIL: Talk! (arguing that international law is playing a substantial role in the crisis but that the rules on the use of force have become vague and open to broad interpretation due to post-Cold War liberal interventions) Disclaimer: Please note that inclusion in or exclusion from this index does not indicate approval or disapproval of views or reflect a judgement on the quality of argument. Any comments on the content or organization of this map are welcome. Either send an email to email@example.com or use the Contact Us service at the top of the screen.