Ralph Wilde

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo

International Court of Justice advisory opinion on the consistency of Kosovo�s declaration of independence with principles of self-determination and international administration

Triggering State Obligations Extraterritoriality: The Spatial Test in Certain Human Rights Treaties.

The spatial test for triggering the extraterritorial application of the main treaties on civil and political rights law has been the subject of significant judicial comment in recent years. This piece offers a critical evaluation of an important common theme in these judicial determinations: the suggestion that the spatial test is to be understood in a manner that covers a sub-set of extraterritorial activity involving territorial control occurring as a matter of fact. It provides a sustained explanation and critical evaluation of four different ways such a suggestion can be identified in some of the key judicial determinations on the issue of the extraterritorial application of treaties on civil and political rights generally. Since one of the other main areas of law potentially relevant to extraterritorial activity—the law of occupation—also uses a test of territorial control as a trigger for application, the interplay between the approaches taken in each area of law on the question of what type of control is required mediates the extent to which the fields of activity covered by the two areas of law overlap. Understanding the merit of the determinations concerning human rights law discussed in this piece is significant, then, not only on its own terms, but also because of its significance to the broader question of the overlap between human rights law and the law of occupation.

We are teachers of International Law

In the general debate prior to the onset of war in Iraq, we made public our view, in a letter to the Guardian newspaper, that the war could be justified neither by reference to earlier UN Security Council resolutions nor by way of the doctrine of self-defence. In this article we reflect on some of the anxieties we experienced both before and after that ‘intervention’ in terms of the vision of international law we might unwillingly promote, and in terms of the role we appeared to assume for ourselves, and our professional colleagues, in public debate. Despite our efforts to prevent legal issues from dominating, we came to be viewed as the defenders of an anti-hegemonic legality – resisting the erosion by an opportunistic coalition of the principles of sovereignty, non-intervention, and collective security. We were concerned that this made us appear champions of international law in a way with which none of us was entirely comfortable. On the other hand, in contesting that, we seemed in danger of valorising a politics of expertise that gave international lawyers a privileged position within the debate. We reflect, then, on the consequences, intentional or otherwise, of our intervention, and explore the dilemmas associated with it. The problem with which we finally grapple is whether the relationship between critical scholarship and the techniques associated with it (anti-formalism, complexity, and indeterminacy) is such as to preclude strategic intervention in the effort to stop a war.

Complementing Occupation Law? Selective Judicial Treatment of the Suitability of Human Rights Norms

This Article offers a critical evaluation of the treatment of the suitability of applying human rights law to occupation situations offered by the English House of Lords in the Al-Skeini judgment of 2007. Al-Skeini concerned the application of the European Convention on Human Rights (ECHR) to the United Kingdom in Iraq. In the decision, the majority asserted that the application of human rights law would amount to a form of “imperialism” in requiring an occupying State to impose culturally inappropriate norms in occupied territory. They also found that its application would undermine the status quo norm contained in occupation law, by obliging an occupying State to transform the legal system in occupied territory in order to bring it in line with the human rights standards in play. This Article argues that these two assertions are based on a mistaken understanding of the substantive meaning of human rights obligations in occupation situations, and the effect on this meaning of the interface with other areas of international law. It is suggested that the fear of “human rights imperialism” is, as articulated here, misconceived; that applying human rights law to occupation situations may not actually involve breaching the law of occupation; and that in any case a more sophisticated approach to the question of clashes in normative regimes needs to be adopted.

‘Anachronistic As Colonial Remnants May Be…’ Locating the Rights of the Chagos Islanders As a Case Study of the Operation of Human Rights Law in Colonial Territories

In the colonial era, it was commonplace for treaties binding on the metropolitan state to be applicable in that state’s colonies if the state made a declaration to this effect, via the operation of a ‘colonial clause’ in the treaty. This reflects concepts of trusteeship-over-people and civilizational difference which legitimized colonial rule in general and the role of the colonial authority in determining what standards were appropriate in colonial territories in particular. The colonial-clause model for applicability was adopted in the European Convention on Human Rights of 1950 and certain of its Protocols, but not other subsequent human rights treaties. The standard jurisprudential view is that in the absence of a colonial clause declaration, the Convention cannot be applicable on the alternative basis on which it operates in a state’s territory and to its extraterritorial activities. Such a declaration of applicability was not made in relation to the Chagos Islands, a UK colony, where human rights questions have been raised by the forced displacement by the UK of the indigenous population between 1968 and 1973, the continued denial of this people of their right to return, and more recent allegations concerning the US military base on one of the islands, Diego Garcia. However, in a 2012 decision, the European Court of Human Rights suggested that the standard position on the exclusive determinacy of declarations under the colonial clause may no longer be sustainable. The present piece takes this suggestion and explores its potential, taking into account the significance of the self-determination entitlement in having delegitimized the underlying concepts of trusteeship and civilizational difference on which the standard position is based.

The Unintended Consequences of Expanding Migrant Rights Protections

One story that can be told about the development of legal protections for certain forced migrants in international law is, in terms of the scope of protection, a progressive one. From expanded definitions of who is entitled to refugee-law protection, to the development of complementary protection in human rights law, the ambit of that which the law purports to cover has moved wider. This might be seen as part of the broader trend in the expanding coverage of international human rights law generally. Yet, a counternarrative can also be told: a diminished commitment on the part of many states, particularly economically advantaged ones, to inward migration, including of forced migrants, as evidenced in the expanded scope of non-entrée, “closed borders” measures, from visa restrictions to carrier sanctions, push-back operations, and an unwillingness to engage in numerically significant refugee resettlements to their countries. This backlash trend can also be identified in human rights policy generally. Just as the scope of human rights legal protection in general, and the legal protection accorded to certain migrants in particular, has expanded, so too states have become less willing to provide such protection.