unlikely in the near future. A more likely outcome will be another “Quick ‘Harbour’” or “Shield” ... more unlikely in the near future. A more likely outcome will be another “Quick ‘Harbour’” or “Shield” accommodating the US institutional preferences. Such outsourcing of personal data protection in the face of unrestrained surveillance would set the stage for Schrems III. Second, Schrems II will have significant implications for data transfers to third countries beyond US, including the post-Brexit UK, because SCCs are relied on by 88 per cent of EU companies transferring data outside the EU. While data transfers using SCC were upheld, Schrems II has put data controllers on notice – they must make assessments before exporting data to third countries and monitor those arrangements, suspending data flows if needed. The CJEU also made it clear that the DPAs must use their regulatory and investigative powers confidently, adopting corrective measures where data controllers fail to act or make agreements using SCCs which do not afford “essentially equivalent protection”, and challenging Europe...
IN Nevsun Resources Ltd. v Araya, 2020 SCC 5, the Supreme Court of Canada held that claims agains... more IN Nevsun Resources Ltd. v Araya, 2020 SCC 5, the Supreme Court of Canada held that claims against a Canadian corporation for complicity in breaches of customary international law in Eritrea could proceed. Eritrean workers alleged that they were forced by the military to work at Bisha mine in Eritrea, in which Nevsun Resources Ltd., a Canadian company, has a majority stake. They alleged, among other things, that they had been forced to work for 12 hours a day, six days a week, in temperatures approaching 50°C, and without cover. The plaintiffs sued Nevsun in British Columbia, seeking damages for complicity in breaches of customary international law prohibitions (of forced labour; slavery; cruel, inhuman and degrading treatment; and crimes against humanity) as well as existing domestic torts. Nevsun brought a motion to strike out the pleadings, relying on the act of state doctrine and arguing that the customary international law claims have no reasonable prospect of success. A 7–2 majority found that the act of state doctrine, present in English and US law, is not part of Canadian common law: instead the principles underlying the doctrine – conflict of laws and judicial restraint – have developed separately and are not a bar to the plaintiffs’ claims. A 5–4 majority held that the customary international law claims could proceed to trial in British Columbia, where the plaintiffs will have to establish the merits of their case. The decision is hugely important, both because it recognises that corporations may breach international norms and because the majority make good the promise of a monist approach to customary international law to provide a remedy for such breaches. Abella J., writing for the majority, reasoned that, since the doctrine of adoption means that norms of customary international law are part of Canadian law unless contrary to domestic Cambridge Law Journal, 79(3), November 2020, pp. 381–430
As a result of the U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co., clai... more As a result of the U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co., claims brought under the Alien Tort Statute (ATS) must “touch and concern the territory of the United States … with sufficient force” for federal courts to recognize a federal common law cause of action for violations of international law.
TWO decisions of the Supreme Court – Benkharbouche v Secretary of State for Foreign and Commonwea... more TWO decisions of the Supreme Court – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62, [2017] 3 W.L.R. 957, and Reyes v Al-Malki [2017] UKSC 61, [2017] 3 W.L.R. 923 – demonstrate the limitations of state and diplomatic immunity in employment disputes, and raise important questions concerning the interaction between immunity and other rules of international law.
In January 2017, the UK Supreme Court handed down landmark judgments in three cases arising out o... more In January 2017, the UK Supreme Court handed down landmark judgments in three cases arising out of the UK government's conduct abroad. In Serdar Mohammed v Ministry of Defence, the Court considered whether detention in non-international armed conflicts was compatible with the right of liberty in Article 5 of the European Convention on Human Rights. The second case, Belhaj v Straw, involved an examination of the nature and scope of the foreign act of State doctrine, and its applicability as a defence to tort claims arising out of the alleged complicity of the UK Government in human rights abuses abroad. Finally, Rahmatullah v Ministry of Defence saw the Court examining the nature and scope of the Crown act of State doctrine, and its use as a defence to tort claims alleging unlawful detention and maltreatment. All three cases raise important doctrinal issues and have significant consequences for government accountability and access to a judicial remedy. At the heart of each decisi...
IN the joined appeals of Belhaj v Straw and Rahmatullah (No 1) v Ministry of Defence [2017] UKSC ... more IN the joined appeals of Belhaj v Straw and Rahmatullah (No 1) v Ministry of Defence [2017] UKSC 3, the UK Supreme Court held that state immunity and the foreign act of state doctrine did not prevent claims against the British Government alleging complicity in human rights abuses and breaches of peremptory norms of international law.
This article examines the application of the right of access to a court as guaranteed by Article ... more This article examines the application of the right of access to a court as guaranteed by Article 47 of the EU Charter of Fundamental Rights in cases involving State immunity. First, it considers the scope of the right of access to a court under the Charter, including its relationship with Article 6(1) of the European Convention on Human Rights, and the ways in which the Charter is given effect within UK law. Second, the article critically examines the Court of Appeal’s application of both Article 6(1) ECHR and Article 47 of the EU Charter in Benkharbouche v Sudan, a case brought by domestic service staff of foreign embassies based in London against Sudan and Libya respectively. It argues that the Court’s statement that the right of access to a court is not engaged in immunity cases because the court has no jurisdiction to exercise – an analysis which relies on Lord Millett’s reasoning in Holland v Lampen-Wolfe and the dicta of Lords Bingham and Hoffmann in Jones v Saudi Arabia – is ...
In Khurts Bat, the English High Court held that Mr Bat, a Mongolian State official charged with c... more In Khurts Bat, the English High Court held that Mr Bat, a Mongolian State official charged with committing municipal crimes on German territory, was not immune from the jurisdiction of German courts and could therefore be extradited to Germany. This article examines the three theories of immunity put forward in that case: (1) special missions immunity, (2) high-ranking official immunity, and (3) State immunity. It focuses on the question of whether State officials charged with municipal crimes may plead immunity ratione materiae from the criminal jurisdiction of a foreign State by examining key examples of State practice.
125(1)). The wording of this section suggests reliability is again of core concern to trial judge... more 125(1)). The wording of this section suggests reliability is again of core concern to trial judges asked to stop a trial involving hearsay evidence from a dead witness. So, naturally, the Court of Appeal focussed upon it (see, e.g., at [109]). It might be premature, however, to conclude that the Court of Appeal has favoured the reliability-only approach in Horncastle over the more onerous view adopted in Al-Khawaja. The court was, after all, faced in Ibrahim with hearsay evidence that was crucial to the case against the defendant, and was clearly unreliable: the complainant’s statements contained inconsistencies, and the other prosecution evidence partially contradicted them. Furthermore, there was no suggestion that the defendant could not challenge the complainant’s evidence – he appears to have done so quite effectively. Things might have been different if the other prosecution evidence had been consistent with the complainant’s account, and the defence had had no means of countering it. The Court of Appeal made clear in Ibrahim that, had it detected a significant difference between Horncastle and Al-Khawaja (which, in these altered circumstances, it ought to have), it would have followed the Supreme Court’s lead (at [87]). The Court of Appeal must consider relevant Strasburg jurisprudence (Human Rights Act 1998, s. 2), but is, ultimately, bound by the Supreme Court’s precedents. The correct course would thus have been to refuse to quash the conviction, note the relevant aspect of the Grand Chamber’s opinion, and grant the defendant leave to appeal to the Supreme Court (see, further, R. (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, [2009] 1 A.C. 311 at [64]). This variation on the facts of Ibrahim will no doubt arise in due course. Until then, trial judges should be suspicious of the ease with which the Court of Appeal claims Horncastle and Al-Khawaja may be reconciled.
Despite some modest progress, corporate responsibility for human rights abuses in domestic courts... more Despite some modest progress, corporate responsibility for human rights abuses in domestic courts remains elusive. In U.S. federal courts, Alien Tort Statute (ATS) litigation is now more precarious than ever before. While there have been some potentially important developments in English courts, judges are reluctant to extend responsibility to parent corporations for harm caused by the operations of foreign subsidiaries. Although U.S. and English courts have been concerned with distinct doctrinal issues, the overall picture appears to be one of deference to the corporation and its anatomized form, and to the goal of promoting investment abroad.
Page 1. Electronic copy available at: http://ssrn.com/abstract=1765124 1 The final draft of this ... more Page 1. Electronic copy available at: http://ssrn.com/abstract=1765124 1 The final draft of this paper will be printed in: 13 Yearbook of International Humanitarian Law (forthcoming June 2011) THE GAZA FREEDOM FLOTILLA AND INTERNATIONAL LAW Andrew Sanger1 ...
unlikely in the near future. A more likely outcome will be another “Quick ‘Harbour’” or “Shield” ... more unlikely in the near future. A more likely outcome will be another “Quick ‘Harbour’” or “Shield” accommodating the US institutional preferences. Such outsourcing of personal data protection in the face of unrestrained surveillance would set the stage for Schrems III. Second, Schrems II will have significant implications for data transfers to third countries beyond US, including the post-Brexit UK, because SCCs are relied on by 88 per cent of EU companies transferring data outside the EU. While data transfers using SCC were upheld, Schrems II has put data controllers on notice – they must make assessments before exporting data to third countries and monitor those arrangements, suspending data flows if needed. The CJEU also made it clear that the DPAs must use their regulatory and investigative powers confidently, adopting corrective measures where data controllers fail to act or make agreements using SCCs which do not afford “essentially equivalent protection”, and challenging Europe...
IN Nevsun Resources Ltd. v Araya, 2020 SCC 5, the Supreme Court of Canada held that claims agains... more IN Nevsun Resources Ltd. v Araya, 2020 SCC 5, the Supreme Court of Canada held that claims against a Canadian corporation for complicity in breaches of customary international law in Eritrea could proceed. Eritrean workers alleged that they were forced by the military to work at Bisha mine in Eritrea, in which Nevsun Resources Ltd., a Canadian company, has a majority stake. They alleged, among other things, that they had been forced to work for 12 hours a day, six days a week, in temperatures approaching 50°C, and without cover. The plaintiffs sued Nevsun in British Columbia, seeking damages for complicity in breaches of customary international law prohibitions (of forced labour; slavery; cruel, inhuman and degrading treatment; and crimes against humanity) as well as existing domestic torts. Nevsun brought a motion to strike out the pleadings, relying on the act of state doctrine and arguing that the customary international law claims have no reasonable prospect of success. A 7–2 majority found that the act of state doctrine, present in English and US law, is not part of Canadian common law: instead the principles underlying the doctrine – conflict of laws and judicial restraint – have developed separately and are not a bar to the plaintiffs’ claims. A 5–4 majority held that the customary international law claims could proceed to trial in British Columbia, where the plaintiffs will have to establish the merits of their case. The decision is hugely important, both because it recognises that corporations may breach international norms and because the majority make good the promise of a monist approach to customary international law to provide a remedy for such breaches. Abella J., writing for the majority, reasoned that, since the doctrine of adoption means that norms of customary international law are part of Canadian law unless contrary to domestic Cambridge Law Journal, 79(3), November 2020, pp. 381–430
As a result of the U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co., clai... more As a result of the U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co., claims brought under the Alien Tort Statute (ATS) must “touch and concern the territory of the United States … with sufficient force” for federal courts to recognize a federal common law cause of action for violations of international law.
TWO decisions of the Supreme Court – Benkharbouche v Secretary of State for Foreign and Commonwea... more TWO decisions of the Supreme Court – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62, [2017] 3 W.L.R. 957, and Reyes v Al-Malki [2017] UKSC 61, [2017] 3 W.L.R. 923 – demonstrate the limitations of state and diplomatic immunity in employment disputes, and raise important questions concerning the interaction between immunity and other rules of international law.
In January 2017, the UK Supreme Court handed down landmark judgments in three cases arising out o... more In January 2017, the UK Supreme Court handed down landmark judgments in three cases arising out of the UK government's conduct abroad. In Serdar Mohammed v Ministry of Defence, the Court considered whether detention in non-international armed conflicts was compatible with the right of liberty in Article 5 of the European Convention on Human Rights. The second case, Belhaj v Straw, involved an examination of the nature and scope of the foreign act of State doctrine, and its applicability as a defence to tort claims arising out of the alleged complicity of the UK Government in human rights abuses abroad. Finally, Rahmatullah v Ministry of Defence saw the Court examining the nature and scope of the Crown act of State doctrine, and its use as a defence to tort claims alleging unlawful detention and maltreatment. All three cases raise important doctrinal issues and have significant consequences for government accountability and access to a judicial remedy. At the heart of each decisi...
IN the joined appeals of Belhaj v Straw and Rahmatullah (No 1) v Ministry of Defence [2017] UKSC ... more IN the joined appeals of Belhaj v Straw and Rahmatullah (No 1) v Ministry of Defence [2017] UKSC 3, the UK Supreme Court held that state immunity and the foreign act of state doctrine did not prevent claims against the British Government alleging complicity in human rights abuses and breaches of peremptory norms of international law.
This article examines the application of the right of access to a court as guaranteed by Article ... more This article examines the application of the right of access to a court as guaranteed by Article 47 of the EU Charter of Fundamental Rights in cases involving State immunity. First, it considers the scope of the right of access to a court under the Charter, including its relationship with Article 6(1) of the European Convention on Human Rights, and the ways in which the Charter is given effect within UK law. Second, the article critically examines the Court of Appeal’s application of both Article 6(1) ECHR and Article 47 of the EU Charter in Benkharbouche v Sudan, a case brought by domestic service staff of foreign embassies based in London against Sudan and Libya respectively. It argues that the Court’s statement that the right of access to a court is not engaged in immunity cases because the court has no jurisdiction to exercise – an analysis which relies on Lord Millett’s reasoning in Holland v Lampen-Wolfe and the dicta of Lords Bingham and Hoffmann in Jones v Saudi Arabia – is ...
In Khurts Bat, the English High Court held that Mr Bat, a Mongolian State official charged with c... more In Khurts Bat, the English High Court held that Mr Bat, a Mongolian State official charged with committing municipal crimes on German territory, was not immune from the jurisdiction of German courts and could therefore be extradited to Germany. This article examines the three theories of immunity put forward in that case: (1) special missions immunity, (2) high-ranking official immunity, and (3) State immunity. It focuses on the question of whether State officials charged with municipal crimes may plead immunity ratione materiae from the criminal jurisdiction of a foreign State by examining key examples of State practice.
125(1)). The wording of this section suggests reliability is again of core concern to trial judge... more 125(1)). The wording of this section suggests reliability is again of core concern to trial judges asked to stop a trial involving hearsay evidence from a dead witness. So, naturally, the Court of Appeal focussed upon it (see, e.g., at [109]). It might be premature, however, to conclude that the Court of Appeal has favoured the reliability-only approach in Horncastle over the more onerous view adopted in Al-Khawaja. The court was, after all, faced in Ibrahim with hearsay evidence that was crucial to the case against the defendant, and was clearly unreliable: the complainant’s statements contained inconsistencies, and the other prosecution evidence partially contradicted them. Furthermore, there was no suggestion that the defendant could not challenge the complainant’s evidence – he appears to have done so quite effectively. Things might have been different if the other prosecution evidence had been consistent with the complainant’s account, and the defence had had no means of countering it. The Court of Appeal made clear in Ibrahim that, had it detected a significant difference between Horncastle and Al-Khawaja (which, in these altered circumstances, it ought to have), it would have followed the Supreme Court’s lead (at [87]). The Court of Appeal must consider relevant Strasburg jurisprudence (Human Rights Act 1998, s. 2), but is, ultimately, bound by the Supreme Court’s precedents. The correct course would thus have been to refuse to quash the conviction, note the relevant aspect of the Grand Chamber’s opinion, and grant the defendant leave to appeal to the Supreme Court (see, further, R. (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, [2009] 1 A.C. 311 at [64]). This variation on the facts of Ibrahim will no doubt arise in due course. Until then, trial judges should be suspicious of the ease with which the Court of Appeal claims Horncastle and Al-Khawaja may be reconciled.
Despite some modest progress, corporate responsibility for human rights abuses in domestic courts... more Despite some modest progress, corporate responsibility for human rights abuses in domestic courts remains elusive. In U.S. federal courts, Alien Tort Statute (ATS) litigation is now more precarious than ever before. While there have been some potentially important developments in English courts, judges are reluctant to extend responsibility to parent corporations for harm caused by the operations of foreign subsidiaries. Although U.S. and English courts have been concerned with distinct doctrinal issues, the overall picture appears to be one of deference to the corporation and its anatomized form, and to the goal of promoting investment abroad.
Page 1. Electronic copy available at: http://ssrn.com/abstract=1765124 1 The final draft of this ... more Page 1. Electronic copy available at: http://ssrn.com/abstract=1765124 1 The final draft of this paper will be printed in: 13 Yearbook of International Humanitarian Law (forthcoming June 2011) THE GAZA FREEDOM FLOTILLA AND INTERNATIONAL LAW Andrew Sanger1 ...
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