Human Rights Committee Observations

Above is an example of a Human Rights Committee observations in response to a state's periodic report, which each state submits pursuant to its obligations under the ICCPR. The Third Periodic Report of the United States of America, to which this document is a response, can be found here.Consider whether such reporting, and resulting response from the Human Rights Committee, is effective as a mechanism for mobilizing compliance with state obligations.

Hopping News Week in Int'l Law

The last week or so has seen a multitude of events and stories with significant international law implications, some relating to issues we have already studied, or will study later in the semester. Here are just a few:

The U.S. Court of Appeals for the District of Columbia vacated a conviction of Salim Ahmed Hamdan, the now-famous driver for Osama Bin Laden, who was the named applicant in the case decided by the Supreme  Court a few years ago. The Court here vacated the conviction of the military commission in Guantanamo Bay on the grounds that the conviction was for a crime that does not exist in the laws of war. A summary of the decision is on the ASIL website here.

Related to our discussion of the Al-Sekini case, last week several Royal Marines of the British forces in Afghanistan were charged with murder, for killings in an incident in Afghanistan in 2011.

Further to our discussion of extradition, the High Court of England and Wales dismissed the last attempts by five alleged terrorists in the U.K. to resist extradition to the United States, a summary of which can be found here. The claimants argued that there was a double standard, as the Home Secretary last week blocked the extradition to the United States of the young man with Asperger's syndrom, who had hacked into Pentagon computer systems, in a case that someone raised in class last week.

In the third presidential debate Mr. Romney suggested that President of Ahmadinejad of Iran should be indicted under the Genocide Convention for inciting genocide. This immediately led to discussion on social media about what he could possibly have meant - whether he was suggesting that Ahmadinejad be indicted by the International Criminal Court (which the Republican Party in particular is hostile to), or if he thought that somehow Ahmadinejad could be indicted within the U.S., and if so how. That debate has not made its way on to Opinio Juris, here and here. They don't really deal with the immunity issues.

Finally, in the area of use of force, there was a story this week about a cyber-attack on a Saudi firm, raising fears that Iran is responding to alleged U.S. and Israeli cyber-attacks on Iranian uranium enrichment facilities. The international law world is struggling with questions of whether and under what circumstances such "attacks" might constitute armed attacks justifying a use of military force in response in the exercise of self-defence. And just today, Sudan accused Israel of conducting an air attack on an ammunition facility in Sudan, in which two persons were killed.

The Senkaku/Diaoyu Island Dispute

Now that we have looked briefly at some of the principles that govern the acquisition of territory, and the delimitation of borders, consider the arguments in these two guest posts by Japanese and Chinese scholars, invited by Nick Kristof of The New York Times to state their nation's case.

First, you might want to read a couple of recent news articles on the dispute, here and here. Then, the debate begins with a post by the Chinese scholar Han Yi-Shaw. This is followed by a response from the Japanese scholar Takyuki Nishi. Finally, here is a later blog post from Kristof responding to a letter from the Japanese government.

We have not studied the legal principles that govern this dispute in any depth, but based on what you have learned so far, which of the two arguments do you find most convincing? In a short paragraph or two, in the comments section below, lay out who you think wins and why.

ECHR Case on Implementation of UN Security Council Black-lists

You will recall from our discussion of sources and subjects of international law, there have been objections to the increasingly legislative nature of resolutions passed by the U.N. Security Council, particularly those anti-terrorism resolutions that have created blacklists of individuals alleged to have be associated with terrorist organizations. In this very recent judgment of the European Court of Human Rights, the question was whether Swiss legislation implementing such a Security Council resolution violated the human rights of an Italian-Egyptian resident of Switzerland. The case will also be helpful in priming our thinking about human rights, which we will be begin looking at in a little over a week.

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Nada v. Switzerland (Sept. 12, 2012) [source - ASIL Int'l Law Brief]

Click here for document (approximately 82 pages)

The Grand Chamber of the European Court of Human Rights has ruled in Nada v. Switzerland that Switzerland violated the applicant's Article 8 right to respect his private and family life and Article 8 taken together with Article 13 right to an effective remedy of the European Convention on Human Rights by failing to strike a fair balance between the applicant's Convention rights and the legitimate aims of the Swiss government to prevent crime and to protect its national security and public safety.

This case deals with a Swiss ordinance implementing the UN Sanctions Regime against Osama bin Laden and his network adopted by the Security Council in 1999 in response to the 1998 bombings of U.S. embassies in Kenya and Tanzania. As the Security Council extended the sanctions regime with subsequent resolutions against al-Qaeda and the Taliban, the Swiss government followed suit by modifying its ordinance, adding a ban on entry into and transit through Switzerland for individuals and entities listed in the UN Sanctions Committee blacklist. The applicant, an Italian and Egyptian national living in Campione d'Italia, an Italian enclave surrounded by the Swiss Canton of Ticino and separated from the rest of Italy by Lake Lugano, was added to the list in November 2001 and was thus banned from traveling through Switzerland. He tried to have his name removed from the blacklist by appealing to both the relevant UN bodies and the national courts. His was eventually delisted in 2009, shortly after Switzerland informed the UN Sanctions Committee that domestic investigations against the applicant failed to produce evidence showing that he had ties with any of the sanctioned organizations or persons.

More on Vienna Convention on Consular Relations

[Source -  ASIL Int'l Law Brief]

Gutierrez v. State of Nevada (Sept. 19, 2012)

 Click here for document (approximately 14 pages) The Supreme Court of the State of Nevada has ruled in Gutierrez v. State of Nevada that Carlos Gutierrez, a Mexican national sentenced to death for the killing of his three-year-old stepdaughter, is entitled to an evidentiary hearing to determine whether he suffered actual prejudice due to the lack of consular assistance during his sentencing hearing. The Court specifically referred to the 2004 decision of the International Court of Justice ("ICJ"), Avena and Other Mexican Nationals, wherein the ICJ found that the United States violated Article 36 of the 1963 Vienna Convention on Consular Relations when it failed to notify fifty-one Mexican nationals on death row, one of whom was Gutierrez, of their consular notification and access rights. While the U.S. Supreme Court subsequently held in Medellin v. Texas that neither Avena nor the accompanying President's Memorandum purporting to implement Avena "constituted directly enforceable federal law," the Supreme Court of Nevada ruled that in cases where actual prejudice can be shown, state procedural default rules "may yield" to Avena.

 According to the Supreme Court of Nevada, "[u]nlike Medellin and Leal Garcia but like Torres, Gutierrez arguably suffered actual prejudice due to the lack of consular assistance." Furthermore, the Court noted that "[i]t is apparent that Gutierrez needed help navigating the American criminal system. At the time of his arrest, Gutierrez was 26 years old, had the Mexican equivalent of a sixth-grade education, and spoke little English." The Court concluded that "[r]easonable minds can differ on whether these errors were prejudicial and that is precisely the reason an evidentiary hearing is necessary."

Legality of the Drone Program

Christina Hansen writes:

While the use of drones in targeted killings is admittedly a newly emerging area of law, I am deeply disturbed about the deception employed by the U.S. when the campaign in Pakistan began. As we discussed in LOAC, both the criteria for choosing targets for these drone strikes and the process by which targets are approved are still largely a mystery to all but a select few officials. It will be interesting to see what the U.S. will do if Pakistan withdraws its seemingly lukewarm support of the drone strikes in its territory. Will the U.S. continue the program under the banner of self-defense? And will the international community accept that justification? http://www.npr.org/2012/10/06/162395399/u-s-drones-navigate-murky-legal-path-in-pakistan

Al-Sekini v. Sec. of State for Defence

Hazim Al-Skeini

As will be discussed in class on Thursday, the European Court of Human Rights in July of last year handed down a judgment with respect to the same case that we examined today, the House of Lords decision in Al-Skeini v. Secretary of State for Defence, holding that the Iraqi nationals could make claims under the Convention, and finding that the UK had, among other things, violated the claimants' Art. 2 right to life. There is a summary and commentary on the judgment on the Lawfare blog here, and the decision itself is here.

If you have time to scan the decision, consider whether you still think that the House of Lords got it right (or wrong), and which decision you think better accords with international law principles on jurisdiction, and the rationale underlying those principles.

UN Security Council Condemns Syria, and Conflict with Turkey Looms

Earlier this week a Syrian mortar strike on Turkish territory killed five civilians. Turkey retaliated with shelling of Syrian targets, and the Turkish parliament authorized further military action against Syria. Yesterday the U.N. Security Council passed a resolution condemning the Syrian attack, and referring to the impact the crisis was having on "international peace and security". Russia blocked language which would have indicated that the crisis was "a threat to international peace and security."

We will turn to the law governing the use of force in a couple of weeks, when these issues will become clearer; but in preparation consider:

1) Was the Turkish response with shelling lawful under international law? If so, under what principle?

2) On what legal basis, if any, could Turkey continue to escalate military intervention in Syria, as parliament seems to have authorized?

3) Why was Russia concerned about the language "threat to international peace and security"? What would such language have triggered, if anything?

You may want to take a stab at answering these questions now, and then returning to see how your thinking might have changed after we study the use of force material.