International Law

Derecho Internacional / International Law

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China legislature adopts new Hong Kong national security law

Source: Jurist

May 29, 2020

China’s National People’s Congress (NPC) on Thursday adopted a decision to establish and improve legislation on and enforcement of Hong Kong’s national security.

This decision imposes a duty upon the Hong Kong Special Administrative Region (HKSAR) to safeguard national security. HKSAR was previously required to complete national security legislation under the Basic Law of the HKSAR. However, the decision adopted on Thursday requires the HKSAR to complete the legislation sooner, as well as to prevent and punish acts threatening national security.

The HKSAR is required to establish and improve the institutions safeguarding national security, and activities that endanger national security are forbidden. The HKSAR chief executive must now regularly report the HKSAR’s performance to the Central People’s Government. The NPC Standing Committee will be responsible for creating laws to establish and improve the HKSAR’s legal system and enforcement mechanisms.

NPC “resolutely opposes” any interference in HKSAR affairs by foreign or external forces. This decision follows decades of social unrest and street violence, as well as concerns over “increasingly notable national security risks” in Hong Kong.

Derecho Internacional / International Law

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Palestine president declares end to international agreement with US and Israel

Source: Jurist

May 21, 2020

Palestinian President Mahmoud Abbas declared an end to Palestinian commitments in the Oslo Accords in a meeting Tuesday in Ramallah.

The Oslo Accords are a set of agreements designed to facilitate peace between Israel and the Palestinian Liberation Organization (PLO). Under the terms signed in the 1990s, Palestinians were granted self-governance in parts of the West Bank and Gaza, and the PLO provided recognition to Israel as a state.

Abbas’s announcement comes in response to Israeli Prime Minister Benjamin Netanyahu’s plans to annex one-third of the West Bank. The move would result in Israel surrounding Palestinian land from all sides.

Its unclear what actions Abbas will take after Tuesday’s meeting. The Palestinian President has made similar comments in the past. Though, Palestinian leaders have told reporters that Abbas was serious in his remarks.

The result could have implications in the US political sphere, where President Donald Trump has vocally supported the Israeli government and its annexation efforts. Presumptive Democratic nominee Joe Biden criticized annexation in the West Bank and expressed disappointment with the Netanyahu administration.

Derecho Internacional / International Law

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China introduces new Hong Kong security law

Source: Jurist

May 21, 2020

 China introduced a controversial national security law Thursday that could place restraints on the pro-democracy movement in Hong Kong.

The law prohibits acts of “sedition, foreign interference, terrorism and secession.” China cited national security concerns for implementing the measure, but many warn the law will be interpreted broadly and cover protests.

China’s legislature begins its annual National People’s Congress meeting on Friday, where it could pass the law without deliberation from the legislature in Hong Kong.

Under the institution of “one country, two systems,” such a measure would need to pass the Hong Kong legislature. The legislature attempted to pass national security legislation earlier this year, but failed after being met with opposition from protesters.

The summer of 2019 marked a significant resistance to the Chinese government from pro-democracy protestors. The movement has since subsided in the form of public protest as the COVID-19 outbreak has spread throughout the world, including in Hong Kong.

Pro-democracy leaders are speaking out against the proposal and its procedure. “This is the end of Hong Kong. This is the end of ‘One Country, Two Systems.’ … Beijing has completely breached its promise to the Hong People. A promise enshrined … in the basic law,” declared lawmaker Dennis Kwok.

Derecho Internacional / International Law

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Can China Be Sued under International Law for COVID-19?

Source: Jurist

 May 21, 2020

Under the immense human and economic loss caused by the COVID-19 pandemic, some countries have mentioned that they are willing to file lawsuits against China. Do they have any basis for filing a lawsuit? In the current state of international law, is the claimant State required to prove negligence or breach of a international legal duty to receive any compensation from China?

In fact, according to the fundamental principles of international law, violation of state international obligations or commission of any internationally wrongful act by a State engages its international responsibility. Thus, the claimant states should prove that China has violated its international obligations. In this case, only an internationally wrongful act, such as the breach of an international treaty or the violation of another state’s territory, will be taken into consideration. There are no general legal duties and obligations that apply to China as a violation of international law.

In this perspective, to engage the Chinese government’s international responsibility, which court has competence for this kind of lawsuit? There are four possible scenarios for a lawsuit against China.

First of all, a lawsuit could be brought in national courts. According to the principles of international law, the national courts are not competent to entertain an international dispute between states. As mentioned above, the individual complaints in domestic courts have no legal basis so China can invoke its immunity from such jurisdiction. In a case where any local court made a judicial decision in this matter and ordered compensation from China, that decision would not be enforceable. In addition, the judicial doctrine called “sovereign immunity” or “state immunity” offers foreign governments a protection against prosecution in American courts. The doctrine protects the Chinese government or its political subdivisions, departments, and agencies from being sued without its consent in any country including in the United States.

Second, a lawsuit could be brought in the International Court of Justice (ICJ). The ICJ is one of the principal judicial bodies of the United Nations for settling disputes between states. For a court to be competent for settling this claim, the court must obtain the consent of the adverse countries to resolve their differences. In this case, neither China nor the United States recognizes the jurisdiction of the court, so the ICJ has no competence to render a judicial decision for this possible lawsuit.

Third, the International Criminal Court (ICC) would be another option. The ICC prosecutes individuals for international crimes such as genocide, crimes against humanity, war crimes, and the crime of aggression. In this particular case, neither China nor the United States has ratified the Rome Statute. For this reason, there is no international court competent for a state to bring a claim against China.

The last option is the UN Security Council which has the power under the ICC’s Rome Statute to refer cases to the ICC or adapt a resolution against China based on its “primary responsibility for the maintenance of international peace and security.” In this case, China could use its right to veto because the Security Council’s veto power is granted solely to the Security Council’s five permanent members: China, the United States, France, the United Kingdom, and Russia.

Is it possible for these countries to win the case? What would be a reasonable reaction to the Chinese government? Legally speaking, each type of national or international court has its own jurisdiction, which means that it has the authority to decide specific types of cases. Any government or individual could file a lawsuit against the Chinese government seeking remedies for causing the COVID-19 pandemic. However, based on the principles of international law, it seems that there is no national or international court competent to bring a claim against China.

Judicial action against China is not an immediate response for the pandemic crises that are affecting all of humanity in the world. The principle of cooperation has been considered as one of the cornerstones of international law. According to this principle, all states have an obligation to cooperate in such a situation collectively. In this context, the World Health Organization (WHO) plays an essential role in the matter.

Derecho Internacional / International Law

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UK government: British and Irish citizens born in Northern Ireland to be treated as EU citizens for immigration purposes

Source: Jurist

May 15, 2020

The UK government announced that all British and Irish citizens born in Northern Ireland would be treated as EU citizens for immigration purposes, making the official rule change in Parliament on Thursday.

This rule change follows the case of an Irish woman, Emma DeSouza, who applied for a residence card for her US-born husband in 2015. Although DeSouza had never held a British passport, the UK Home Office rejected her application because it deemed her to be a British citizen.

DeSouza challenged the decision on the grounds that the terms of the Good Friday Agreement allowed her to identify as either British, Irish or both. The first tier tribunal ruled in favor of DeSouza, but the Home Office appealed and won.

Irish foreign affairs minister Simon Coveney pushed for a rule change, which the UK government did on Thursday. The change will last from August 24 until June 2021.

Derecho Internacional / International Law

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High EU court condemns Hungary’s migrant transit zone

Source: Jurist

May 16, 2020

The European Union Court of Justice on Thursday ruled that Hungary’s confinement of third-country asylum seekers subject to a “return decision” in transit zones at the Serbian-Hungarian border “must be classified as detention.” Additionally, it found that those detained for no reason must be released immediately, following a judicial review by a national court.

The judgment stems from a combined case concerning two families from Afghanistan and Iran who arrived in Hungary through Serbia. Each family applied for refugee status in the Röszke transit zone. Their applications were denied, pursuant to Hungarian law, and they were ordered to return to Serbia. Hungary’s Aliens Policing Authority ordered the families to stay at a designated place, namely the Röszke transit zone. Months later, Serbia refused to readmit the families to the country. Hungarian officials then amended the dismissed applications and directed the families to return to their countries of origin.

The families brought actions against the Hungarian government “for failure to act relating to their detention and continuing presence in the Röszke transit zone.” According to a summary of the facts, the Röszke transit zone is an area surrounded by a high wall with barbed wire. Detainees may only leave their sector for medical or administrative reasons “and are therefore almost isolated from the outside world.”

The Court deemed the prevailing conditions in the Röszke transit zone to “amount to a deprivation of liberty, inter alia because the persons concerned cannot lawfully leave that zone of their own free will in any direction whatsoever.” It concluded that holding people in transit zones like Röszke amounts to detention measures—expressly in violation of European Parliament directives. The Court reinforced established EU law that stipulates that countries cannot detain asylum applicants nor third-country nationals subject to a “return decision” solely on the grounds that they cannot meet their own needs due to a material lack of resources. 

Derecho Internacional / International Law

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European Court of Justice advisor: migrants being illegally detained on Serbian-Hungarian border

Source: Jurist

April 26, 2020

The European Court of Justice Advocate General said Thursday that four migrants are being illegally detained on the Serbian-Hungarian border in an area called Röszke.

The migrants in the case are an Afghan couple and an Iranian man and his son. Both sets of migrants arrived to Hungary in 2019. They applied for asylum, and the Hungarian authorities rejected their asylum claims. The court found that the authorities did not examine their asylum claims on the merits because the authorities believed the principle of non-refoulment did not apply. In addition, authorities cited Hungarian law for rejecting the claims. After being turned away from Hungary, Serbia did not admit the migrants either.

The Advocate General found in his non-binding opinion that the authorities are keeping the migrants in illegal detention in the Röszke transit area. Article 2 (h) of Directive 2013/33, defines the term “detention” as “any measure of isolation of an asylum seeker by a Member State in a given place, where the asylum seeker is deprived of their freedom of movement.”

The Advocate General also found that if migrants are denied asylum from a “safe transit country,” then the former country in which the asylum seekers arrived, in this case Hungary, must resume procedures for examining the asylum claim.