Opinio Juris
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en-us2008-07-03T13:07+00:00ECHR Decision on Confessions Under the Threat of Torture
http://www.opiniojuris.org/posts/1215062415.shtml
Antoine Buyse at the ECHR Blog has posted an analysis of Gafgen v. Germany, a decision handed down by the ECHR on Monday concerning the admissibility of evidence...Chris Borgen2008-07-03T05:07+00:00the ECHR Blog has posted an analysis of Gafgen v. Germany, a decision handed down by the ECHR on Monday concerning the admissibility of evidence resulting from statements made under the threat of torture. Here's the background:
In 2003, the applicant, Magnus Gäfgen, was sentenced to life imprisonment for the murder of J., the eleven year old son, of a rich bankers family from Frankfurt am Main. Gäfgen had lured the boy into his home and subsequently killed him. That same day he dropped the corpse of the boy into a pond. He had then demanded a ransom of one million euros from the family, without disclosing that J. was already dead. Shortly after picking up the ransom, Gäfgen was arrested.
The case centres on what occurred next: thinking that the boy was still alive but in grave danger, the police officers questioning Gäfgen threatened him with considerable pain if he did not reveal where the child was. As a result, Gäfgen disclosed where the corpse could be found. At the start of the trial, Gäfgen complained that his confession had been made under the threat of torture.
Buyse explains that:
The Court first concluded that the threat, would it have been carried out, would have amounted to torture and that a threat of torture amounted to inhuman treatment. The threat itself, however, was not torture.
The opinion then states:
the Court finds that the treatment the applicant was threatened with would, if carried out, amount to torture. However, the questioning lasted for some ten minutes only and, as was established in the criminal proceedings against the police officers (...), took place in an atmosphere of heightened tension and emotions owing to the fact that the police officers, who were completely exhausted and under extreme pressure, believed that they had only a few hours to save J.'s life, elements which can be regarded as mitigating factors...
Buyse's post considers this issue of mitigation (which he finds "somewhat puzzling" in light of the absolute prohibition on torture) and the balancing test that the ECHR seems to use in deciding whether or not torture has taken place. For a full explanation of these issues, as well as how this affects evidentiary and fair trial issues under the European Convention, see his full post.
]]>Avena is Back at the ICJ: What's the Point?
http://www.opiniojuris.org/posts/1213925681.shtml
What exactly does Mexico hope to accomplish in its proceeding for a "Request for an Interpretation" of the 2004 ICJ Avena Judgment? The ICJ held hearings today (transcript here) and...Julian Ku2008-06-20T04:06+00:00here) and the International Herald Tribune has a nice account here. I understand that there is an international legal argument to be made here, but it is hard to see how any new judgment from the ICJ will have any more of a domestic legal effect than its earlier ones. And since the U.S. government has already acknowledged the requirements of the original ICJ judgment in Avena, all that will happen here is more international posturing by the ICJ, more hand-wringing by the U.S. government, and more posturing by Texas.
Mexico needs to shut down its legal team (as good as they are), and starting using its diplomats. Congress is the obvious place to start, but given the urgency, Texas (and its commutation board) is the other place to go. The ICJ may provide yet another judgment (and its willingness to act quickly in scheduling its public hearing two weeks after Mexico's application) which will be again ignored by Texas. ]]>ITLOS Elections
http://www.opiniojuris.org/posts/1213616979.shtml
Last week, the states parties to the U.N. Convention on the Law of the Sea (UNCLOS) held elections for seven of the...Duncan Hollis2008-06-16T11:06+00:00Last week, the states parties to the U.N. Convention on the Law of the Sea (UNCLOS) held elections for seven of the 21 seats on the International Tribunal for the Law of the Sea (ITLOS). Here are the results:
Among those seven members, Judge Wolfrum (Germany), Judge Akl(Lebanon), Judge Marotta Rangel (Brazil), Judge Chandrasekhara Rao (India) and Judge Jesus (Cape Verde) were re-elected and Mr Bouguetaia (Algeria) and Mr Golitsyn (Russian Federation) were newly elected by the States Parties. The biographies of the judges who were re-elected are available on the website of the Tribunal and those of Mr Bouguetaia and Mr Golitsyn may be found in document SPLOS/173 which is available on the website of the Division for Ocean Affairs and the Law of the Sea of the United Nations at www.un.org/Depts/los.
Now, if ITLOS could just get some work to occupy the judges' time. Assuming compulsory dispute settlement is warranted, UNCLOS states parties can select arbitration or the ICJ in lieu of ITLOS to hear their law of the sea-related disputes. Although ITLOS has great digs (paid for by the German government and the City of Hamburg, and given to ITLOS rent-free), states seem to have a strong aversion to utilizing the tribunal for such cases. At present, ITLOS has ONE pending case—between Chile and the European Community over swordfish stocks in the South-Eastern Pacific Ocean. That case, however, isn’t giving the tribunal much to do, seeing as it’s on hiatus through January 1, 2009 as the parties try and negotiate their own compromise. Since the first 21 judges were elected in 1996, ITLOS has heard 15 cases, so the current situation is not all that surprising. But with a 2007-2008 budget of over 17 million euros, I’ve got to wonder how long the Tribunal can sustain such a nominal case-load. ]]>Avena Goes Back to the ICJ
http://www.opiniojuris.org/posts/1212684355.shtml
Mexico is returning to the ICJ to seek an interpretation of the Avena judgment. Here is an excerpt from the press release:...Roger Alford2008-06-05T16:06+00:00Avena judgment. Here is an excerpt from the press release:
Today Mexico filed a Request for interpretation of the Judgment delivered on 31 March 2004 by the International Court of Justice (ICJ) in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America). Mexico invokes Article 60 of the Statute of the Court, which provides that: “In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.” A request for interpretation opens a new case. Mexico notes that in previous cases, the Court ruled that its jurisdiction to provide an interpretation of one of its own judgments “[was] a special jurisdiction deriving directly from Article 60 of the Statute”. In its Request Mexico recalls that, in the above-mentioned Avena Judgment, the Court inter alia found “that the United States had breached Article 36 of the Vienna Convention on Consular Relations in the cases of 51 Mexican nationals by failing to inform them . . . of their rights to consular access and assistance”; and that the Court determined, in paragraph 153 (9) of the Judgment, the remedial obligations incumbent upon the United States. Mexico contends that “a fundamental dispute” has arisen “between the parties as to the scope and meaning” of paragraph 153 (9) and that the Court needs “to provide guidance to the parties”....
Accordingly, Mexico asks the Court “to adjudge and declare that the obligation incumbent upon the United States under paragraph 153 (9) of the Avena Judgment constitutes an obligation of result as it is clearly stated in the Judgment by the indication that the United States must provide ‘review and reconsideration of the convictions and sentences’ but leaving it the ‘means of its own choosing’; and that, pursuant to the foregoing obligation of result,(1) the United States must take any and all steps necessary to provide the reparation of review and reconsideration mandated by the Avena Judgment; and (2) the United States must take any and all steps necessary to ensure that no Mexican national entitled to review and reconsideration under the Avena Judgment is executed unless and until that review and reconsideration is completed and it is determined that no prejudice resulted from the violation.” Today Mexico also filed in the Registry an urgent Request for the indication of provisional measures in accordance with Article 41 of the Statute. This article provides that “the Court shall have the power to indicate, if it considers that circumstances so require, any provision or measures which ought to be taken to preserve the respective rights of either Party”. Mexico explains that “provisional measures are clearly justified in order both to protect Mexico’s paramount interest in the life of its nationals and to ensure the Court’s ability to order the relief Mexico seeks”.
]]>New Blog on the European Convention on Human Rights
http://www.opiniojuris.org/posts/1212678155.shtml
Dr. Antoine Buyse of the Netherlands Institute of Human Rights (SIM), Utrecht University, has started a new blog on the European Convention on Human Rights and Fundamental Freedoms....Chris Borgen2008-06-05T15:06+00:00Dr. Antoine Buyse of the Netherlands Institute of Human Rights (SIM), Utrecht University, has started a new blog on the European Convention on Human Rights and Fundamental Freedoms.
This looks like it will be a great resource for anyone interested in human rights, international courts, and/or comparative law.
Welcome to the blogosphere!]]>Djibouti's Somewhat Silly Case Against France is Rightly Rejected by the ICJ
http://www.opiniojuris.org/posts/1212596467.shtml
The ICJ issued a decision today in a relatively inconsequential and somewhat silly case brought by Djibouti against France in the ICJ relating to a French criminal investigation of the...Julian Ku2008-06-04T16:06+00:00decision today in a relatively inconsequential and somewhat silly case brought by Djibouti against France in the ICJ relating to a French criminal investigation of the 2002 death of a French judge in Djibouti. Djibouti alleged that France had violated its obligations under a 1986 Convention on Mutual Assistance in Criminal Matters and a 1977 Friendship, Commerce, and Navigation Treaty by failing to execute letters rogatory from Djibouti seeking the case file of the French criminal investigation and by violating the immunities of its top governmental officials.
The background here is that the French investigation has led to charges against two top aides to the Djibouti president. Oh, and Djibouti just happens to be the location of France's largest military base in Africa. So France specifically gave consent to the ICJ's jurisdiction, even though it did not have to under the ICJ Statute or any other treaty it has with Djibouti.
The ICJ found it had jurisdiction but found that the failure to execute the letters rogatory did not violate the 1986 Convention, although the failure to explain why such letters were not executed did violate said Convention. Nor did France's investigations of top Djibouti officials violate the customary laws granting such officials immunity and the 1973 Treaty on the Prevention and Punishment of Crimes for Internationally Protected Persons.
Thus, France's only violation was failing to explain why it did not execute Djibouti's letters rogatory. But the ICJ then found that the only remedy necessary at this point is the ICJ's finding of such a violation, which constitutes "appropriate satisfaction" for Djibouti.
At the end of the day, this is the type of not very important or particularly persuasive case which should not really have been brought, or if brought, should have been dismissed more quickly. There was no very serious argument here that France violated the extremely vague 1986 convention, and there is no argument at all that it violated the 1974 Protected Persons convention.
The ICJ made quick work of this case (at least under its own standards), resolving it only 18 months after it was filed in January 2006. But even 18 months is still kind of ridiculous for a case which seemed to have no serious chance of success for Djibouti.
On the other hand, one might find the ICJ process a real success, because it allows the two parties (Djibouti and France) to dump a messy problem into the ICJ basket, separating it from other aspects of their bilateral relationship. In this view, the longer the ICJ takes, the better. ]]>ICJ Issues Judgment in Malaysia/Singapore Case
http://www.opiniojuris.org/posts/1211906996.shtml
On Friday, the ICJ issued its judgment in Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore). A summary sent by the ICJ stated that...Chris Borgen2008-05-27T16:05+00:00Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore). A summary sent by the ICJ stated that
it had found by 12 votes to four that Pedra Blanca/Pulau Batu Puteh, a granite island in the Straits of Singapore on which a lighthouse stands, belongs to Singapore and has done so since at least 1980, when the dispute between the two countries crystallized.
In the case of Middle Rocks, which consist of a group of rocks that are permanently above water, the ICJ … ruled 15 to one that it belongs to Malaysia.
The court also noted that South Ledge, a nearby low-tide elevation, falls within the apparently overlapping territorial waters generated by Pedra Blanca/Pulau Batu Puteh and by Middle Rocks. Given that the two countries have not asked the court to draw the line of delimitation, the judges said, by 15 to one, that sovereignty belongs to the State in the territorial waters of which it is located.
The press release, including a detailed summary of the opinion, is here and the full opinion available here.]]>The Role of Precedent at the WTO
http://www.opiniojuris.org/posts/1209742944.shtml
Earlier this week the WTO Appellate Body clarified the role of legal precedent in WTO jurisprudence. The background to the discussion was a WTO panel’s refusal to follow a previous Appellate...Roger Alford2008-05-02T15:05+00:00here. I have written about judicial overreaching by the WTO Appellate Body and basically agreed with the lower panel’s legal reasoning on deference to permissible interpretations of Member States in the AD/CVD context.
Well, the Appellate Body in Stainless Steel (Mexico) did not take kindly to the panel’s refusal to follow the previous Appellate Body report and issued the following smack down:
158. It is well settled that Appellate Body reports are not binding, except with respect to resolving the particular dispute between the parties. This, however, does not mean that subsequent panels are free to disregard the legal interpretations and the ratio decidendi contained in previous Appellate Body reports that have been adopted by the DSB….
160. Dispute settlement practice demonstrates that WTO Members attach significance to reasoning provided in previous panel and Appellate Body reports. Adopted panel and Appellate Body reports are often cited by parties in support of legal arguments in dispute settlement proceedings, and are relied upon by panels and the Appellate Body in subsequent disputes. In addition, when enacting or modifying laws and national regulations pertaining to international trade matters, WTO Members take into account the legal interpretation of the covered agreements developed in adopted panel and Appellate Body reports. Thus, the legal interpretation embodied in adopted panel and Appellate Body reports becomes part and parcel of the acquis of the WTO dispute settlement system. Ensuring "security and predictability" in the dispute settlement system … implies that, absent cogent reasons, an adjudicatory body will resolve the same legal question in the same way in a subsequent case.
161. In the hierarchical structure contemplated in the DSU, panels and the Appellate Body have distinct roles to play…. The Panel's failure to follow previously adopted Appellate Body reports addressing the same issues undermines the development of a coherent and predictable body of jurisprudence clarifying Members' rights and obligations under the covered agreements as contemplated under the DSU….
162. We are deeply concerned about the Panel's decision to depart from well-established Appellate Body jurisprudence clarifying the interpretation of the same legal issues. The Panel's approach has serious implications for the proper functioning of the WTO dispute settlement system ….
Did you catch all of that? WTO Appellate Body decisions are not binding, but they must be followed. Unless, that is, there are cogent reasons not to follow them. But then if you don’t follow them because you think you do have cogent reasons (i.e., the standard of review in the treaty was ignored by the previous Appellate Body report), then the Appellate Body will be deeply concerned.
The role of precedent has always been difficult with respect to international courts and tribunals. But I read the Appellate Body in Stainless Steel (Mexico) as essentially requiring panels to follow Appellate Body decisions and treat them as legal precedent. You can't call it legal precedent, but it is. As one anonymous commenter put it in this post, the message from the Appellate Body to panels is the following:
You really, really should follow prior Appellate Body decisions. It would be quite bad for the system if you do not. But if you've got what you think are compelling reasons for not doing so, we understand if you feel you have to go your own way. Bearing in mind, of course, that if you do, we will almost certainly reverse you on appeal. You may think your reasons are pretty good, but if they were really that persuasive we would have gone that way ourselves, hence they are not, in fact, "cogent".
Last week, the states parties to the U.N. Convention on the Law of the Sea (UNCLOS) held elections for seven of the 21 seats on the International Tribunal for the Law of the Sea (ITLOS). Here are the results: