Vassilis P. Tzevelekos

Reparation of the Rights to Property and Home of Displaced Persons Arising from Armed Conflict Under the European Convention of Human Rights: Falling Short of the Exigencies of International Law and the Humanistic Purpose of Human Rights?

The chapter discusses the question of the reparation of the rights to property and home in the context of the ECHR when these rights have been affected by forcible displacement. It observes that the ECtHR does not exclude the payment of compensation by the responsible state for the deprivation of property in the case of military occupation. Although the case law at question is neither sufficient nor clear enough to allow drawing conclusions as to whether it only concerns displacement in the context of the Cyprus issue and what are the conditions to be met to shift from restitution to compensation for loss of property, this is what the Court has done in its recent case law concerning the Cyprus issue. The argument built in that respect in the paper is that downgrading from restitution to compensation goes against international law, both primary and secondary. Although the human rights at issue may suffer limitations (especially if a human rights friendly agreement is reached between the involved states, settling the issue and establishing the condition for a new era of peaceful co-existence, or in case of a friendly settlement of the dispute between the victim and the respondent state), limitations are difficult to justify in the case of unlawful military occupation. The right to return home (i.e. the restitution of property/home) amounts to an essential remedy against occupation and should, in principle, be selected as the main form of reparation.

Migrants at sea: a duty of plural states to protect (extraterritorially)?

Although migration is a transnational phenomenon involving a plurality of states, the state of departure is often unwilling/unable to offer protection. Receiving/transit states can refrain from engaging with the problem until migrants have already entered their territory. With high seas, this can result in the deaths of people taking the risk of travelling to a new place. The article argues that states have a duty to offer (some) protection even when migrants are not in their territory, based on human rights’ positive effect and the principle of due diligence. Because of the transnational nature of migration, all involved states have the responsibility to offer protection. This may lead to concurrent state liability for failure to protect. The duty to protect may extend to the high seas, even when the traditional links for the establishment of jurisdiction are absent. The duty is not unlimited, it needs to prevail over other considerations.

Human Security and Shared Responsibility to Fight Transnational Crimes: Resolution 2240 (2015) of the United Nations Security Council on Smuggling of Migrants and Human Trafficking Off the Coast of Libya

The paper discusses United Nations (UN) Security Council resolution 2240 (2015). The Resolution was adopted under Chapter VII of the UN Charter and authorises for a certain period of time UN member states to inspect and seize vessels on the high seas off the coast of Libya when they reasonably suspect that these are being used for migrant smuggling or human trafficking. The paper sees in resolution 2240 an example of how the UN Security Council may empower states to take action against transnational social phenomena that raise serious concerns from the perspective of human rights – regarding especially the right to life. The idea that transpires from this resolution is that transnational phenomena, such as smuggling of migrants and human trafficking, require (coordinated, as the study argues) action by all involved states and, more generally, international actors (although the focus in the study is on states). Because of their transnational nature, such situations involve a plurality of duty bearers, each one of which is partially connected to the situation and has an obligation to be pro-actively engaged – to the extent that its individual connection with the situation at issue justifies and requires it. This leads to a situation of multiple duty bearers who exercise parallel and, possibly, also overlapping jurisdiction as a means to fulfill their duties under international law – especially regarding the so-called positive dimension of human rights, i.e. the duty to protect. This implies that concurrent state responsibility (in the sense of liability) may arise, if more than one of these duty bearers break their duties. With its resolution, the UNSC contributes to the idea of shared responsibility by multiple states to react against transnational social phenomena that raise concerns from the perspective of human rights and human security. Because human trafficking and smuggling raise issues of human security, the idea of multiple duty bearers and concurrent state responsibility advanced in the study can be associated with the UN human security policy framework. The paper argues that this framework ought to be attuned to fully meet the particular needs, nature and features of transnational phenomena, such as trafficking and smuggling, that threaten the security and well-being of people. For human security to be successful in its goals, it needs to be adjusted to the transnational nature of these phenomena. What is required when a situation necessitating protection exceeds or transcends the borders of a state, is establishing frameworks of cooperation and coordination between the various involved parties. This is an essential precondition for human security to deliver effective results and prosper in the era of inter-connection and globalisation.

Introductory Note: Beyond the Identification of International Customary Rules

This is a brief introduction to a special journal issue on international customary law. The note offers information on the studies published in the issue and identifies two (interlinked) threads that connect them, namely state-centrism in custom making and the role of state will/consent (associated with the voluntarist school of thought within international legal positivism). Moreover, the note links the papers published in the issue with the work of the ILC on the identification of international customary law and argues that, to a certain degree, while offering authoritative guidance on the identification of custom, the ILC defines customary international law as a source of law. This, in a sense, overlaps with the function of judges/courts, which also define custom as a source of international law when they employ that source as a means to identify a customary rule. This means that ILCs approach on customary law may limit the power/authority of judges/courts to construct their own definition of custom as a source. The question to be asked then is how flexible or rigid should ILCs definition of customary law be.

Towards a Humanized International “Constitution”?

The paper argues that, by bringing a number of changes of systemic proportions in the order of international law, the internationalisation of national constitutional human rights law has led to the “constitutionalisation” of international law. To build that argument, the paper first critically assesses the constitutionalisation narrative. To that end it explains the reasons for its agnostic stance vis-a-vis it and highlights the fact that international law has always contained some general, “constitutional” features that are particular to its systemic physiognomy. The paper then explains how human rights as a special branch of international law expand beyond the so-called humanisation of international law narrative, acting as an important ingredient in a number of other narratives such as the constitutionalisation of international law and the ones that are comparable to it, like legal pluralism and fragmentation. As to the systemic changes the internationalisation of human rights has brought to the order of public international law, the examples given are those of collective enforcement at the decentralised level for the protection of common interests/values, sui generis normative hierarchy beyond jus cogens and the idea of the responsibility of states to act in a protective manner linked with the principle of due diligence and the so-called positive effect that human rights develop.

The Making of International Human Rights Law

The paper discusses how human rights norms are created in international law. After explaining the limits of the sources of positive international law (and especially the problems that are inherent to custom making), it turns towards the role of international courts and tribunals and discusses the ways through which these may recognise the existence of human rights. The paper identifies a number of means that are available to international courts for that task and highlights the distinction between consensus-based reasoning, and decision making based on human rights principles.