2. State responsibility and jurisdiction Flashcards
In the 1980’s, a typology of human rights obligations was proposed that the State should respect, protect and fulfil human rights. What is the meaning of these terms? Which of these are positive or negative obligations?
Respect - abstain from interfering with existing rights (negative - abstain)
Protect - intervene in inter-individual relationships to protect human rights ; to prevent such violations from occurring and provide remedy when measures fail (positive)
Fulfil - design and implement policies that facilitate and promote human rights (positive)
For a State to derogate from human rights obligations, a severe crisis situation affecting the life of a nation requiring exceptional measures must exist. What are the 6 conditions that the State must usually satisfy to legitimately derogate from a human rights obligation?
According to the ECHR, which Court is best positioned to determine whether the life of a nation is threatened by a public emergency - a domestic or international court? What was their argument?
Where one treaty allows for restrictions/derogations and another does not, is the State authorised to limit the scope of the obligations imposed?
For a State to legitimise a derogation from a human rights obligation, a) the Treaty must allow it b) the restriction must be strictly to the extent required by the situation c) the measures applied must not be inconsistent with other obligations under international law d) the measures must not involve discrimination on the basis of colour, race, gender etc. e) the existence of a public emergency justifying derogation should be officially proclaimed f) there must be a severe crisis affecting the life of a nation. In some cases it has also been argued that the restriction should only apply to the parts of the territory impacted.
The ECHR held the view that a domestic court was best positioned to determine whether there was a severe crisis situation affecting the life of a nation arguing they are best able to make judgements about the extent of their own national emergency. The ECHR however did go on to say that there was an expectation that domestic courts would ‘apply rigour in assessing the government evaluation of the state of emergency’.
No.
In ECHR Loizidou v Turkey (1995); ICJ, Legal Consequences of the Construction of the Wall in Palestine (2004) and Sergio Euben Lopex Burgos v Uruguay (1981), the respective courts ruled that a country could be held responsible for human rights violations outside their own territory in cases where the State exercises effective control. What were the arguments?
In occupying the territory of another country, irrespective of whether the occupation is legal or illegal, a country exercising effective control remains obliged to adhere to the human rights obligations enshrined in customary international law and/or treaties to which they are a party, particularly in these cases the ICCPR. A country could not be allowed to do outside its own territory what it is not permitted to do within its own territory. In the case of Palestine, the Court noted that even though the ICESCR contained no explicit provision on its scope of application, ‘it could not be excluded’ that it applies to both the territories over which the State has sovereignty and the territories over which the State exercises effective control. Thus jurisdiction is determined by the existence of effective control. While jurisdiction is considered fundamentally territorial, jurisdiction can exist in areas where the State exercises effective control.
There are ‘non-derogable rights’ listed in some human rights treaties. Name 3 of their shared characteristics. Are jus cogens rights and non-derogable rights the same thing?
3 of the characteristics of non-derogable human rights include a) the reason for their inclusion is not necessarily clear b) they have no common characteristic c) they cannot be derogated from even in times of war or emergency.
The terms jus cogens and non-derogable are not interchangeable as while all jus cogens rights are non-derogable, not all non-derogable rights are jus cogens rights.
In Jaloud v Netherlands (2014), Jaloud was killed by Dutch soliders in Iraq who were allegedly under the operational command of the US and the UK. Dutch soldiers were deemed to be acting autonomously. The applicant alleged a breach of Art 2 alleging an inadequate independent investigation. What judgement did the ICJ make regarding jurisdiction and therefore who was held responsible?
The ICJ ruled that the death of Jaloud fell within the jurisdiction of the Netherlands within the meaning of Art 1 of the Convention. The Court referenced the Bosnian genocide case (2007) that discussed the unsuitability of applying the overall control test in situations where a State is acting autonomously despite being under the operational direction of another State arguing that a State is responsible for its own conduct and the conduct of State agents that are in a relationship of ‘complete dependence’ on that State.
In Ilascu v Moldova & Russia, the ICJ ruled that where the contracting State (ie. Moldova) is prevented from exercising its authority over the whole of its territory, it does not cease to have jurisdiction within the meaning of Art 1 of the Convention… Nevertheless, such a situation reduces the scope of the jurisdiction in that the undertaking given by the State under Art 1 must be considered by the Court only in the light of the State’s positive obligations towards person within its territory. What does this mean?
The Court decided that jurisdiction extended to Moldova and that therefore Moldova was obliged to protect the rights that the applicants may claim under the ECHR. This means that the State must endeavour, with all the legal and diplomatic means available to it vis-a-vis foreign States and international orgs, to continue to guarantee the enjoyment of the rights and freedoms guaranteed by the Convention. The scope to achieve this was limited by the reduced authority of Moldova in this context.
Where a constituency within a State exercises legislative and judicial jurisdiction, can a State argue that responsibility is imputable to the province as opposed to the State? Why/why not?
No. In accordance with Art 27 of the Vienna Convention on the Law of Treaties, a party may not invoke the provisions of its internal law as justification for its failure to comply with treaty obligations.
What are the 3 scenarios which could trigger extraterritorial obligations under International Law, obliging a State to comply with human rights outside its national territory?
- In the case where a State is exercising its executive powers in another territory by sending its agents abroad
- In a scenario where the State is able to influence situations outside of its territory by enacting legislation or providing remedy within its Courts eg. by exercising control over private actors operating in other regions unless this conflicts with the sovereignty of another State
- One State is assisting another State in improving human rights elsewhere
Is there an obligation for rich countries to provide assistance and cooperation to low income countries in support of the progressive realisation of human rights? Is this quantified?
There is an expectation but the extent to which it is an obligation is in debate. A quantifiable benchmark of 0.7% of GNP was proposed by the General Assembly in 1970 but few countries achieve this target.
What did the Maastricht Principles on Extraterritorial Obligations in 2011 seek to do?
As a result of increasing globalisation, increasingly human rights were being impacted by States other than the State in which the individuals reside. (eg environmental spills/explosions). Some treaties were developing some conditions of jurisdiction that were limiting the scope of territorial obligations, causing case law to develop in sometimes opposing and contradictory directions.
The restating of these obligations was done to:
a) guide future jurisprudence in this area
b) ‘avoid conduct that would create foreseeable risk of impairing the enjoyment of human rights by persons living in poverty beyond their borders, and
c) require that States conduct assessments of the extraterritorial impact of laws, policies and practices’.
In Arrest Warrant of 11 April 2000, Democratic Republic of Congo v Belgium (2002), the Republic filed an application against Belgium after Belgium had issued an arrest warrant for Mr Abdulaye Yerodia Ndombasi, the then Minister for Foreign Affairs in the Republic of Congo. The allegation was that Belgium had violated the principle that a State may not exercise its authority on the territory of another State, undermining the principle of sovereignty. The Minister was being accused of war crimes. The ICJ found in favour of the Republic of Congo despite law that provided for a universal jurisdiction of Belgian Courts to prosecute certain international crimes that violated international humanitarian law. What was their argument?
That Belgium had failed to respect the Minister’s right to immunity from criminal jurisdiction that was provided under International Law. The court stated that in considering State practice and decisions by higher Courts, it was unable to deduce that there was a practice that exists under customary international law that any form of exception to the rule of immunity for incumbent Ministers of Foreign Affairs existed in cases where they have allegedly committed war crimes.
In the case of the Belmarsh 9, 2004, in the UK pertaining to the derogation order relating to the lawful detention of suspected terrorists until such time as they are deported, the House of Lords quashed the derogation order, despite agreeing with Parliament that there existed a public emergency allowing for derogations. On what basis then did the House of Lords quash the Order?
The House of Lords thus considered that there existed a ‘public emergency’ in the meaning required by Article 15 ECHR or Article 4 ICCPR for derogation powers to be exercised. (However, the House of Lords quashed the Derogation Order, finding that section 23 of the Anti-terrorism, Crime and Security Act 2001 is incompatible with Articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status).
