Competent Forums for Setting Aside an Arbitral Award in the Context of Kosovo and UNCITRAL’S Legislation

1 hónap ago

Introduction

The aim of this article is to present the competent forums for setting aside an arbitral award within the legislation of Kosovo and in accordance with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York 1958 (Convention) and United Nations Commission on International Trade Law (UNCITRAL) Model Law on Commercial Arbitration 1985 with amendments as adopted in 2006 (Model Law). In this article I will show the importance of the systematic interpretation of Law No. 02/L-75 on Arbitration of Republic of Kosovo (Law on Arbitration), the Convention and the Model Law to find the final meaning of provisions that can serve as grounds to establish jurisdiction for setting aside an arbitral award, whether these provisions are the grounds of jurisdiction for setting aside a national or foreign arbitral award. By analyzing several case law sources and referring to the doctrinal approach, the content of the provisions that deal with setting aside an arbitral award will be crystallized. Moreover, through case law, the way the Principal Court of Prishtina (Principal Court) and the Court of Appeals of Republic of Kosovo (Court of Appeals) approach provisions about the competent forums for setting aside an arbitral award that has been rendered by an Arbitral Tribunal with seat outside of Kosovo will be elaborated.

Litigation and Alternative Dispute Resolutions in the Republic of Kosovo

Resolution of a dispute between two or more parties in civil or commercial matter can be achieved through the classical way (litigation) or through alternative ways such as arbitration, mediation, negotiation, etc. Litigation is a dispute resolution procedure, which is led by a judge in a state court and through which the state exercises its judiciary power. The right to solve a dispute before a state court is unquestionable and any agreement by which a person resigns from the right to raise an issue before the court is null.[1] According to article 6 of the European Convention on Human Rights (ECHR) “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.[2] In order to provide subjects with the opportunity to solve their private disputes, this international act requires every signing state to provide for its citizens a fair and public procedure, which is regulated by law and takes place before a tribunal (court) which is created by law.

Resolving a private dispute before a state court is not subject to any agreement to authorize the court for doing so. According to article 252 of Law No. 03/L-006 on Contested Procedure of Republic of Kosovo, contested civil procedure starts with the submission of a written lawsuit.[3] This lawsuit should have a form and should be submitted by the claimant within the time foreseen by material law or procedural law.[4] According to this law, the procedure in front of the court can be initiated every time by subjects who have any claim from material law. In a litigation procedure, parties are not obliged to reach an agreement for litigation as they should do for alternative dispute resolution procedures.

In addition to the litigation procedure, which is the principal procedure for solving disputes between parties, in Kosovo, alternative dispute resolutions are also in place, such as arbitration or mediation, which are regulated by special laws. These ways of resolving civil or commercial disputes are considered alternative because they are additional opportunities for solving civil or commercial disputes. But, one should bear in mind that even though these procedures are considered alternative ways for solving a civil or commercial matter, their importance cannot be equalized with litigation. Raising a dispute before arbitration is subject to the arbitration agreement, the agreement by which parties expressly agree to solve existing or future disputes in front of arbitration,[5] whether contractual or not. If this agreement does not meet legal requirements, the arbitral award may be set aside or its recognition and enforcement refused.

Setting aside of arbitration award

To issue an award by arbitration, there are some conditions that should be met in order for the award to produce legal effects for the parties. These conditions derive from the substantial and procedural law that parties have chosen to govern their relations and arbitration procedure. If the arbitral award was issued even though the procedural law chosen by parties or the fundamental principles of justice were infringed on, it may be set aside at the request of any party from the court of the state where the arbitration which rendered the award is located or the court of the state under the law of which the procedure was organized.[6] For example, if the parties have agreed to arbitrate, but this agreement was made by the party who did not have the capacity to act, any of the parties has grounds to challenge the jurisdiction of arbitration in front of the competent court.[7] If an arbitral award is not set aside by the competent authorities when it should have been, any of the parties have the right to ask the competent court of the state where the recognition and enforcement of the arbitral award was required to refuse recognition and enforcement of it.

Similarities and differences between recognition and enforcement of the foreign arbitral award and setting aside of the arbitral award

The procedure of recognition and enforcement of a foreign arbitral award exists to estimate if an arbitral award rendered by arbitration with seat outside of the country where recognition and enforcement are requested meets the required conditions for enforcement. The reason why these rules exist is to estimate if a foreign arbitral award has been rendered in accordance with material law and procedural law used by the arbitration. This procedure also assesses if the foreign arbitral award settles any dispute, which, in accordance with the law where the recognition and enforcement are requested, cannot be settled by arbitration. Moreover, during the recognition and enforcement procedure the court assesses if the recognition or enforcement of a foreign award would be “contrary to the public policy”.[8] Grounds for refusing the recognition and enforcement of a foreign arbitral award and grounds for setting aside an arbitral award are the same, with one exception, which has to do with the lack of binding effect of the arbitral award as a base to refuse the recognition and enforcement of the foreign arbitral award.[9]

As it is explained below, the approach followed by the Principal Court of Prishtina regarding the differences between the recognition and enforcement of the foreign arbitral award and the setting aside of arbitral award is also followed by UNCITRAL. In the Explanatory Note by the UNCITRAL Secretariat on the 1985 Model Law on International Commercial Arbitration as amended in 2006 (Explanatory Note), it is stressed that even though the grounds for setting aside an arbitral award and grounds for refusing to recognize and enforce a foreign arbitral award are the same, it cannot be said that these types of procedures can be used against the same types of awards. An application for setting aside under article 34 (2) Model Law may only be made to a court in the State where the award was rendered whereas an application for enforcement might be made in a court in any State.[10]

Forums for setting aside arbitral awards

As it is mentioned above, legal grounds for setting aside an arbitral award are the same as for refusing recognition and enforcement of a foreign arbitral award. In international legal acts such as the Convention and Model Law which stipulate the rules about the procedure of arbitration, the competent authority that can set aside an arbitral award is not expressly defined. Consequently, there is no clear distinction between the setting aside of a national arbitral award and a foreign arbitral award. Article 6 of Model Law stipulates that “Each State enacting this model law specifies the court, courts or, where referred to therein, other authority competent to perform these functions”.[11] The issues for which the court would be authorized to interfere in the arbitral procedure are listed in the first sentence of article 6 of the Model Law. This provision requires states which follow the model law to establish specific institutions which would be authorized to also deal with the annulment of arbitral awards, but without making any difference between national and foreign arbitral awards. The same situation is with the Law on Arbitration. The Law on Arbitration has the same content as the above mentioned international legal acts, which means that the issue regarding forums for setting aside an arbitral award is vague.

Article V paragraph 1 (e) of the Convention stipulates the following: The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which,…that award was made. From this sentence, it can be concluded in an indirect way that the authorized body for setting aside an arbitral award is the court of the state where the arbitral tribunal has its seat, or to say it more generally in the territory of the state where the award was rendered.

Regarding the authorization of forums for setting aside an arbitral award, legal theory tries to make it clearer which are the forums that can set aside an arbitral award. In his book “International Commercial Arbitration Volume III” Gary B. Born says, commenting on the Model Law, that under the Model Law, local courts may not entertain an application to annul an award made abroad, even when local law provides the procedural law governing the foreign-seated arbitration.[12] While Kosovo follows the Model Law, the lack of direct provisions which prohibit national courts to annul a foreign arbitral award does not provide legal grounds for these courts to actually do so.

In addition to the above-mentioned approach to choosing the competent court (the court of the state where the award was rendered) to annul an arbitral award, there also exists another approach which allows national courts to set aside an arbitral award issued by arbitration with seat outside of the territory where annulment is claimed.[13] This option is not grounded in a clear way (similarly to the other way of annulment of the arbitral award) by the New York Convention, Model Law and Law on Arbitration, in the chapter where the provisions about the recognition and enforcement of a foreign arbitral award are found. Article V (1) (e) of the Convention sets the basis for refusing to recognize and enforce foreign arbitral award because of the fact that the arbitral award has been set aside or suspended by a competent authority of the country under the law of which, that award was made. Regarding this part of the sentence, there is also another non-clear situation which also leads to different approaches from courts, about which forum has the jurisdiction for annulling an arbitral award: courts of the state under the material law of which the arbitral award was made or courts of the state whose procedural law was used. Thus, the point of contention has to do with the formulation of the last part of the sentence of the above-mentioned provisions saying “or under the law of which, the award has been made”. There have been many approaches to the meaning of the expression under the law of which, the award has been made. For example, in the case “National Thermal Power Corporation v. the Singer Company”, the Supreme Court of India decided that “this sentence means that the law of state under which the award was made refers to material law of that state and consequently Indian’s Courts has jurisdiction to set aside an international arbitral award”.[14] Differently from this decision, in 1990, the United States District Court of the Southern District of New York ruled in the case “Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Indus. Y Commercial” that “the contested language about the country under the law of which that award was made, meant the procedural law of the arbitration and not the substantive law of the contract”.[15] There is no guidance either by the Convention or by the other legal acts mentioned above to the meaning of the expression “under the law of which”. Even though it is quite theoretical but according to the UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the general approach for the meaning of this sentence is that it refers to the procedural law which has governed the arbitration.[16]

Case Republic of Kosovo v. ICC Arbitration of Paris and Österreichische Staatdruckerei GmbH[17]

A general overview of the case

On June 11, 2014, the Republic of Kosovo brought a lawsuit before the Principal Court of Prishtina (hereinafter referred as “Principal Court”) against the International Court of Arbitration with seat in Paris (hereinafter referred as “ICC Arbitration of Paris”) and Österreichische Staatdruckerei GmbH (hereinafter referred as “OS”), for setting aside the decision on the jurisdiction of ICC Arbitration of Paris. Also in this lawsuit, the Republic of Kosovo asked the court to issue a decision which obliges ICC Arbitration of Paris to pay back the deposit paid by the Republic of Kosovo for procedural expenses and to oblige ICC Arbitration of Paris to pay all procedural costs caused in front of the courts of Kosovo. It should be mentioned that this lawsuit was submitted after ICC Arbitration of Paris issued its final decision, by which the Republic of Kosovo was obliged to pay to the printing house OS around 5 million euro. The lawsuit submitted by Government of the Republic of Kosovo was reviewed by the Principal Court and the Court of Appeals of Republic of Kosovo (hereinafter referred to as “Court of Appeals”).[18]

Ruling of Principal Court

The Principal Court dismissed the lawsuit of the Republic of Kosovo twice on the grounds that Kosovo’s courts do not have the jurisdiction to set aside a decision taken by arbitration which has its seat outside of the territory of the Republic of Kosovo. The Principal Court, by considering only formal requirements (jurisdiction) argued that the Law of Arbitration does not expressly regulate the matter of annulment of a foreign arbitral award, but the national Law on Arbitration has stipulated the procedure of recognition and enforcement of a foreign arbitral award, which means that regarding a foreign arbitral award only the procedure of recognition and enforcement can be applied.

Ruling of Court of Appeals

The Court of Appeals decided to annul the decision of the Principal Court by which the claim for setting aside the award of the International Court of Arbitration was dismissed and to return the case before the Principal Court. Firstly, in its decision, the Court of Appeals mentioned that while in the Law on Arbitration it is not mentioned expressly which kind of arbitral award can be set aside, this means that an arbitral award rendered outside of the territory of Kosovo also can be set aside by courts of Kosovo. Moreover, in this decision the Court of Appeals went further by emphasizing that the parties of the main contract agreed on the applicable law for that contract to be the legislation of Kosovo. Hence, the Court of Appeals took this fact as a connecting factor for the court of Kosovo to have jurisdiction for deciding this case.[19]

Conclusion

The topic of the forums authorized for setting aside an arbitral award is a topic which is still highly discussed and viewed differently by different courts. This is happening because the formulation of the provisions in Convention and Model Law and other national laws make room for it.  But, if law practitioners approach these legal acts by a systematic interpretation, it is quite obvious that the aim of the creators of these legal acts was to make a difference between national and foreign arbitral awards by providing provisions for setting aside arbitral awards and provisions for refusing the recognition of foreign arbitral awards. While these international and national legal acts have specific provisions about recognition and enforcement of a foreign arbitral award and rules to refuse the recognition and enforcement of a foreign arbitral award, it isn’t accepted to ask the court where recognition and enforcement is claimed to annul the arbitral award which is made by arbitration with its seat in a different country. If a national court annuls a foreign arbitral award it means that the state is extending its sovereignty beyond its borders.

For a list of references, click HERE.

Author: Fis Murati, European and International Business Law LLM student, University of Debrecen, Faculty of Law

[1] Morina Iset, Arbitrazhi dhe Procedura e Arbitrazhit, Prishtinë, Kosovo, 2015, pages 29-30.

[2] ECHR, article 6.

[3] Law on Contested Procedure of Kosovo, article 252.

[4] Mornina Iset, Selim Nikci, Komentari I Ligjit për Procedurën Kontestimore, Prishtinë, Kosovo, 2012, page 453.

[5] Gary B. Born, International Arbitration: Law and Practice, 2012, page 35.

[6] Gary B. Born, International Commercial Arbitration, Volume III, International Arbitral Awards, 2014, page 2989-2990.

[7] Explanatory Note by the UNCITRAL Secretariat on the 1985 Model Law on International Commercial Arbitration    as amended in 2006, page 5 (accessed on 27.02.2019 through:http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/MLARB-explanatoryNote20-9-07.pdf.

[8] Article 39, paragraph 4 and paragraph 5 of Law on Arbitration. See also article 36 paragraph 1 (b) (ii) of UNCITRAL Model Law.

[9] Article 39 paragraph 4 (e), of Law on Arbitration and Article 36, paragraph 1 (a)(v), of UNCITRAL Model Law.

[10] Explanatory Note by the UNCITRAL Secretariat on the 1985 Model Law on International Commercial Arbitration as amended in 2006,

[11] In article 6 of UNCITRAL Model Law, are specified areas where the court can interfere. One of these areas is “setting aside the arbitral award”. But, this provision does not foresees there court of which state has the jurisdiction to decide upon this matter.

[12] Gary B. Born, International Commercial Arbitration, Volume III, International Arbitral Awards, 2014, page 3004.

[13] Morina Iset, Arbitration and Arbitration Procedure, Prishtine 2015, pages 177-181.

[14] Case National Thermal Power Corporation v. The Singer Company, Supreme Court of India, 1992.

[15] Case “Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Indus. Y Comercial”, United States, U.S. District Court, Southern District of New York, 90 Civ. 0720 (KC). See also case “Steel Corp. of  the  Phil.  v.  Int’l  Steel  Servs”, United State Court of Appeals, Third Circuit.

[16] See, UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, page 218.

[17] Case Republic of Kosovo v. International Court of Arbitration with seat in Paris, France and Österreichische Staatdruckerei GmbH with seat in Vienna, Austria

[18] (*)It should be emphasized that neither the decision of the Principal Court nor the one of the Court of Appeals became final, because of the fact that the plaintiff withdrew the lawsuit by which it requested the annulment of the decision of ICC Arbitration of Paris. (*)The importance of analyzing this case is to show how the Principal Court of Prishtina and the Court of Appeals of Kosovo had different approaches on interpreting the provisions about setting aside arbitral awards.

[19] This approach of the Court of Appeals is unacceptable because of the fact that the law which governed the material relations between parties has nothing to do with the procedural law followed by arbitration. As it is explained above, material law of the state which is chosen by parties does not constitute jurisdiction for courts of this state simply because parties have used its material law.

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International Law and Drone Warfare

3 hónap 1 hét ago

Leen Bakerjian

Over the past decade the use of drones, robots, and other remotely controlled weaponry has surged in the area of modern warfare, raising questions on the challenges these new technologies bring to human rights and the application of International Law as a whole. States and non-governmental organizations have done very little to change existing laws, and remain unmoved at large by the challenges this new technology brings, leaving lawyers, human rights activists and organizations stuck with old laws that no longer apply to new wars. This paper will look at some of the challenges contemporary wars bring to international law, and explore debates centered on the legality surrounding the use of drones by arguing that an update in existing laws is necessary.

Although relatively a new phenomenon, Unmanned Aerial Vehicles (UAVs), colloquially known as drones, are now seen as the face of American airpower (Farley 2014: 141). A 2012 report by the Department of Defense to the Congress on the future of UAVs states that by 2017 the Army, Air Force, Navy and Marine Corps combined will have 8,388 Unmanned Aircraft Vehicles (2012: 5). Since the first drone strike in 2001, drones have been used in Yemen, Libya, Iraq, Somalia, Afghanistan, Pakistan, Syria and elsewhere. It has been reported that in Pakistan alone, as of July 2013, an estimated 2,039 to 3,370 people were killed due to U.S. drone strikes (Gusterson 2014: 194). The use of drones in wars is showing no sign of decline; on the contrary unpiloted technology is progressing by the day, and is seen by scientists to be still in its early stages.

The Geneva Conventions of 1949 came to be in the aftermath of the Second World War, updating the three previous conventions, in hope to prevent atrocities of the war from reoccurring. The Second World War was generally fought with troops on the ground: today, war looks very different; intelligent machines and unpiloted planes have revolutionized military affairs. Michael Evans writes on how today’s technology has transformed traditional theory and practices of war. Evans explains premodern war as social at core rather than technological, characterized by existential, and not instrumental presence. On the other hand, post-modern war is characterized by “high-tech aerospace power, causality limitation, and cautious exist strategies” (2003:136). War today continues moving forward and away from humanity as it replaces soldiers with drones, and spies with satellites. These changes have left lawyers and human rights workers protesting having to “apply international law written for the Second World War to Star Trek technology’’ (Singer 2009: 387). 

There is international muddle on whether International Human Rights Law (IHRL) and International Humanitarian Law (IHL) can be affectively applied to today’s warfare. The dominant belief is that IHL and IHRL are complementary legal regimes, however while IHRL applies at all times, IHL is tailored to govern armed conflict (Melzer 2008: 58). The ambiguity around whether U.S. drone strikes abroad constitute an armed conflict leads to confusion on the laws that ought to be used to govern these attacks. As Klem Ryan puts it: “Without the clear distinction of the battlefield concepts essential for the effective functioning of the law lose their clarity” (2014: 212). The International Committee of the Red Cross defines international armed conflict as conflicts that occur between two or more opposing states, and non-international armed conflict as that “between governmental forces and non- governmental armed groups, or between such groups only”(ICRC 2008: 1). Experts have questioned whether the U.S is in armed conflict with groups whose members were targeted by U.S drones (Cavallaro, Sonnenberg and Knuckey 2012: 111). As the nature of these strikes remain contested and lack legal clarity, it is appears that the current laws are insufficient in regulating drone warfare, the gap between existing laws and today’s warfare makes it possible for states to engage in bombings with no legal oversight (Farley 2015: 151). In 2011 after Obama authorized the use of drones in Libya, Obama was criticized for not acquiring the needed Congress approval that the law dictates as required for any use of US military forces that lasts longer than 60 days. Following criticisms Obama argued that the use of drones in Libya did not amount to military force as there wasn’t any “troops on the ground, [and] that Libyan forces are unable to fire at them meaningfully’’ (Savage 2011).  The introduction of drones, political theorists argue, has made the decision to go to war more appealing, as less human costs and less political risks are involved and war appears more attractive.

Who’s Accountable?

The introduction of unmanned aerial vehicles has changed the way accountability is to be determined, or rather made accountability ambiguous and more difficult to pin. While old wars were traditionally fought between two national armies face to face, drones have created new wars that are fought across oceans with no direct contact between combatants. The use of remotely controlled weaponry has changed the face of contemporary battle space (Bhatt 2012: 815).  The chain of command behind a UAV strike is more complex than that known in traditional battlefields where a soldier is physically present on the ground and makes a decision to shoot his/her arrow or fire his/her gun. Determining accountability in the traditional battlespace is simpler; a soldier on the ground is held accountable for his/her actions. However, the chain of command is multifaceted when an American combatant is sitting in a UAV control center in Nevada firing missiles in Yemen. If the missile results in the death of a civilian, is the soldier in Nevada to blame? Is his supervisor, who gave the order, to be held accountable for ordering him to fire? Or is it the person behind manufacturing the drone? Determining accountability has become more dubious as the use of drones has lead to blurring the lines between civilians and combatants. Drones are commonly manufactured by private companies such as General Atomics Aeronautical Systems, which makes them produced, programmed, and designed by civilians and this has arguably lead to the “expansion of the role of the combatant into civilian space” (Bhatt 2012: 821). It is not only civilians that are taking on military roles, likewise soldiers operating drones from home soil while living the lives of civilians with the ability to fire missiles killing people on the other side of the world by day, and having dinner parties with friends and families by night, have lead to the “increasing civilianization of many military functions’’ (Bhatt 2012: 821).

The technology for autonomous drones already exists, autonomous drones can make decisions to target and kill without human input, completely unpiloted. Singer argues that with autonomous drones war crimes would be impossible to pin, as war crimes are determined as such through violation and intent, and an unpiloted machine is capable of neither (Singer 2014: 389). A report published by Human Rights Watch and the Harvard Law School International Human Rights Clinic in 2015, echoes Singer’s concern agreeing that acts committed by machines would not amount to crimes as intent can not be established, and affirms that “[e]xisting mechanisms for legal accountability are ill suited and inadequate to address the unlawful harms fully autonomous weapons might cause.’’(2015: 2). The report recommends an absolute ban on the development and production and use of fully autonomous weapons through national laws and instruments of international law (2015: 5). Other issues of determining liability rise including that of software failures; if an autonomous drone uses lethal force against civilians because of a software glitch, do we then put on trial for war crimes the civilian engineer responsible for creating the algorithm that enables drones to scan, select, target, and fire missiles? Or do we abandon accountability and accept the death of civilians as an unfortunate software glitch that might amount to a war crime?

Where Does the Battlespace Begin, and Where Does it End?

The use of drones has changed what it means to ‘go to war’, and the physical confinement of a battlefield. This raises the question of where the borders of the legal battlefield begin and where they end. Evans argues that globalization and new warfare lead to “a process in which space and time have been so compressed by technology as to permit distant actions to have local effects and vice versa” (Evans 2003: 133). Gusterson, a professor at George Washington University, argues that drone warfare “removes the U.S combatant from the battlefield, as it embeds the battlefield in his local world” (Gusterson 2014: 199). The expansion and relocation of the battlespace Evans, Singer, and Gusterson speak of disrupts the equilibrium of power in conflict. Making the battlefield virtual, and bringing it to the feet of American soldiers without them having to leave the comfort of their country, raises questions on the symmetry in war, or rather the lack of it.

There is clear asymmetry in power when one soldier has the luxury to be absent from combat while the other is not aware of drones hovering over his family house and does not view himself as being in battle. War advancements have removed the combatant further and further away from the battlefield, away from the enemy and closer to safety, from having to fight sword to sword, to the physical space rifles allowed, to the protection of tanks, the distance of planes, and now drones. Drones allow U.S military personnel to fight with complete immunity and zero risk. Gusterson argues that drone warfare is closer to torture than it is to war, where one party is able to inflict pain and injury, while the other completely lacks the power to resist, fight back, or reach his torturer (Gusterson 2014: 204).

International humanitarian law views the battlefield as “a physical space linked to a time and an event where particular rules and obligations govern the people present in the location’’ (Ryan 2014: 210), it is thus argued that as drones localize and bring home the distant battlefield, IHL no longer applies. IHL draws on the existence of a physically confined battlespace where two or more opposing parties are present; without clear lines mapping the battlefield, laws become obscure. In other words, with the use of drone warfare “the contemporary battlespace becomes legally incorrigible and geographically ambiguous’’ (Bhatt 2012: 819).

The guaranteed safety of one party, and the complete destruction of the other gives rise to questions on the principle of proportionality, which is foundational to IHL. The principle of proportionality dictates that the harm resulting to civilians due to a military attack must be proportional to the military advantage of an attack. Furthermore, while IHL requires states to suspend attacks that would clearly result in the loss of civilian lives and provide warnings to attacks that will possibly affect civilians, drone attacks by the U.S. have failed to do both. The U.S. frequently carries out what is known as ‘signature strikes’ where drones fire missiles on a group of people whose identity is unknown, but believed by U.S drone pilots on the other side of the globe to look suspicious, by being men of fighting age, or by being present in a territory that is visited by jihadists (Ryan 2014: 212;Heller 2013: 90; Gusterson 2014: 194).  In December 2013, the U.S. launched a drone attack in Yemen on a convoy of trucks that were believed to be carrying Al Qaeda fighters; the trucks were actually full of civilians on their way to a wedding party. The attack resulted in the death of 17 civilians and left many others wounded (Williams 2014; Ali and King 2013). Statistics show that in Pakistan alone between the years 2008 and 2010, drones resulted in 500 killings, only 8% of which are reported to have been ‘top-tier militant targets’ or ‘mid-to-high-level organizers’  (Cavallaro, Sonnenberg and Knuckey, 2012: 31). Other experts have estimated that for every Jihadi the U.S succeeds in killing using drones, fifty civilians are killed (Kilcullen and Exum 2009).

Virtual Realities

The distance drones allow does not only expand and globalize the borders of war, but also has other implications on the way soldiers fight battles. Killing becomes easier when soldiers are detached from the immediate battlespace and are given god-like mighty that enables them to kill while sitting in an air-conditioned control center, surrounded by the safety of a familiar environment. The person, or group, the drone pilot sees on screen is dehumanized, and appears similar to video game characters. Distance is argued to make killing easy and impersonal; one former private in the air force once said in an interview ''I thought killing somebody would be this life-changing experience. And then I did it, and I was like, 'All right, whatever'...killing people is like squashing an ant. I mean you kill somebody and it's like 'All right, let's go get some pizza'' (Tilghman 2006). American psychiatrist Robert Jay Lifton speaks of what he calls ‘doubling’, a psychological outcome that the use of drones can result in. Doubling is when soldiers create psychic doubles where their online personality would be willing to commit crimes they normally wouldn’t do. Lifton explains that the use of drones allows soldiers to swiftly step into and out of war, which can lead to “the calling forth of a functional second self by a single individual as a means of adapting to highly antithetical environments.” (Lifton 2013: 15). Some argue that drone warfare comes with advantages including enabling soldiers in making more accurate decisions, avoiding human mistakes, removing anger, revenge, and fear out of the battlefield, and making it possible to ‘play back battles’ (Singer 2009: 390). Yet, these technological advancements are not price-free and arguably bring more harm than good.

Conclusions

Although this paper focused on the use of drones by the United States, drones are not restricted to US warfare, in fact they go well beyond it. In 2014 the international drone market was worth over six billion US dollars, and over 50 countries were reported to either own or produce drones (Gusterson 2014: 194). The fault in the current system is that it repeatedly fails to take preventive measures in regulating wars. Although the threats drones bring to international law have been thoroughly researched by legal scholars, international organizations, academics, and military experts, laws seem to insist on an approach of ‘if we don’t think about it, it won’t happen’. We deal with the implications of warfare technology only after they have caused substantial damage, even though we can clearly see transformations as they happen. Failing to mesh the legal systems with weapons as they are being developed and created, and not growing legal instruments simultaneously with warfare technology, leaves us with outdated laws that are incapable of safeguarding civilians.

While technology in military affairs progresses viciously in research, production, size and use, outlining the future of warfare, warfare law lags behind seemingly frozen in time.  Despite the above grim picture, past experiences have shown that international law isn’t and should not be a static text but rather evolves and responds towards emerging new realities. Hence, when the international community recognized the changing nature of conflicts in 1977 and agreed to develop two protocols to the Geneva Conventions to address gaps that were not envisioned when the four Geneva Conventions were formulated. It is hoped that the work of human rights organizations across the world would create the needed momentum and encourage the international community to keep abreast in protecting human rights in times of conflict.

 

For a list of references, click HERE.

Author: Leen Bakerjian, PhD student, Géza Marton Doctoral School of Legal Studies, University of Debrecen, Faculty of Law

Kategória: Human rightsBrexit Eng: 
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European Court of Justice: Advocate General voices criticism of Polish judicial reform

3 hónap 2 hét ago

In a recently published opinion, Advocate General Tanchev of the European Court of Justice expressed concerns regarding the appointment of judges to the newly established Disciplinary Chamber of the Polish Supreme Court. According to the opinion – published in Joined Cases C‑585/18, C‑624/18 and C‑625/18, all of which concern the ongoing reform of the Polish justice system – the Disciplinary Chamber does not satisfy the requirements of judicial independence under EU law due to national legislative authorities playing a key role in the election of the 15 judicial members of the National Council of the Judiciary (NCJ), the body playing a primary role in the appointment of judges to the Disciplinary Chamber.

In 2017, Poland introduced a comprehensive reform of its justice system. A particularly controversial measure of the reform saw the retirement age for judges of the Supreme Court lowered to 65, unless the President of the Republic granted his consent (based on the opinion of the NCJ) to the judges continuing in their posts. The measure in question was held by the ECJ to be incompatible with EU law in a recent ruling: it is worth mentioning here that the ECJ had already addressed the issue of systemic retirement of judges in previous rulings, – in particular, a decision given in 2012 in a Commission v. Hungary case concerning a proposed national scheme requiring the compulsory retirement of judges on reaching the age of 62 – however, this earlier case law was based exclusively on the national practice being seen as discriminatory on the grounds of age, and as such, considered a failure of the Member State to conform to the obligations set out in Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. On the contrary, the Polish case saw the ECJ rule that a measure consisting in lowering the retirement age of Supreme Court judges that is to apply to judges appointed to the court before the date on which said measure entered into force constitutes an infringement on the obligations set out in the second subparagraph of Article 19(1) TEU, which states that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law” and which the ECJ appears to interpret as establishing an obligation of judicial independence for every Member State court that has the power to apply EU law.

The Chamber of Labour Law and Social Security decided to stay its proceedings, and asked the European Court of Justice for a preliminary ruling. The questions referred to the ECJ involve two main issues. First, whether a court of last instance in a Member State, before which an appeal is brought, must refuse to apply national provisions which confer jurisdiction in the case on an organisational unit of that court which is not operational due to a failure to appoint judges. The second, and more important issue concerns whether – even if its members are finally appointed – the Disciplinary Chamber offers sufficient guarantees of independence under EU law to hear such claims. This is in view of the fact that the group of judges eligible for appointment by the President of the Republic to the Disciplinary Chamber are selected by the NCJ which is the national body charged with safeguarding judicial independence in Poland. However, the independence of the NCJ has, in turn, been put in doubt by Polish legislation modifying the manner in which its fifteen judicial members are appointed. Its composition is now primarily determined by the legislative and executive authorities.

The recently published opinion of Advocate General Tanchev considers the first question devoid of purpose: in his analysis, the Advocate General agrees with the procedural objections raised by Poland and the European Commission arguing that since judges have now been appointed to the Disciplinary Chamber and that chamber is now exercising judicial functions, it is unnecessary for the Court to answer the question. However, in case the ECJ decides not to adopt the standpoint that this question has become devoid of purpose, the Advocate General suggests the Court should answer the question in the affirmative, arguing that the Member States are obliged only to create new legal remedies under national law for individuals to enforce EU law rights when none exist. This was the situation in the main proceedings, given that the Disciplinary Chamber was not functioning on account of the fact that judges had not yet been appointed to that chamber. Further, Article 47 of the Charter of Fundamental Rights of the European Union guarantees the right of access to a court. By hearing the actions brought by the applicants, the referring court is guaranteeing this access.

Regarding the second issue, the Advocate General considers that measures relating to the appointment of judges and the disciplinary regime governing judges are important aspects of the guarantees of judicial independence under EU law, and the existence of an independent body in the context of the disciplinary regime is part of those guarantees. Thus, even if a national body tasked with selecting judges, such as a judicial council, does not itself carry out the role of a court, the rules regarding its composition and functioning may be taken into account for assessing whether a national court offers sufficient guarantees of independence under EU law. The Advocate General observes that judicial councils and similar bodies play an essential role in guaranteeing the independence and autonomy of the judiciary in many, though not all, Member States. Although there is no uniform model for judicial councils, they are considered to have some common attributes relating to their mission to safeguard judicial independence and their operation within the judicial systems of their respective jurisdictions to maintain respect for the rule of law and fundamental rights:

  • the mission of judicial councils is to safeguard the independence of courts and judges, which means that they must be free from any influence from the legislative and executive authorities,
  • there is no single model that a jurisdiction is bound to follow in setting up a judicial council so long as its composition guarantees its independence and enables it to function effectively. In particular, judicial councils should in principle be composed of at least a majority of judges elected by their peers to prevent manipulation or undue pressure. The selection procedure should be carried out in an objective and transparent manner, in which a wide representation of the judiciary at all levels is guaranteed, and the involvement of legislative and executive authorities in the selection process is discouraged,
  • in order to guarantee the continuity of functions, the mandates of the members of judicial councils should not be replaced at the same time or renewed following parliamentary elections,
  • the selection, appointment and/or promotion of judges are among the most widely recognized functions of judicial councils, and the procedures must be carried out by judicial councils which are independent of the legislative and executive authorities.

According to the Advocate General, the Disciplinary Chamber of the Polish Supreme Court does not satisfy the requirements of judicial independence under EU law, due to the manner of appointment of the members of the NCJ disclosing deficiencies that appear likely to compromise its independence from the legislative and executive authorities. The manner of appointment of the NCJ members entails influence of the legislative authorities over the NCJ, and it cannot be discounted that the Sejm (the lower house of the Polish parliament) may choose candidates with little or no support from judges, with the result that the judicial community’s opinion may have insufficient weight in the process of the election of the NCJ members, an arrangement that is apt to adversely affect the independence of the NCJ.

The Advocate General has also voiced concerns about the fact that the changes to the manner of appointment of the judicial members of the NCJ were accompanied by the early termination of the mandates of the current members of the NCJ. Notwithstanding the purported aim to unify the terms of office of the NCJ membership, the immediate replacement of the members of the NCJ alongside the introduction of the new regime for appointment of the NCJ may be considered to further impair the NCJ’s independence from the legislative and executive authorities.

In conclusion, taking into account the crucial role judicial councils play in guaranteeing the independence of the judiciary in the jurisdictions where they are established, and the importance of their independence and freedom from interference from the legislative and executive authorities in carrying out their tasks, the Advocate General holds that there are legitimate reasons to objectively doubt the independence of the Disciplinary Chamber in light of the role of the legislative authorities in electing the 15 judicial members of the NCJ and the role of that body in selecting judges eligible for appointment by the President of the Republic.

 

The full text of the opinion is available here.

The press release of the Court of Justice is available here.

Author: Daniel Szilágyi, PhD student, University of Debrecen, Faculty of Law

Kategória: Public LawBrexit Eng: 
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How Much Is Enough? – The Interpretation of „Grave Risk” in an International Child Custody Dispute

3 hónap 2 hét ago

One of the most difficult aspects of divorce is making arrangements for the children of the marriage; their well-being and habitat are rarely easy decisions. This is made infinitely more difficult if the parents are citizens of different countries. With the rising number of international families, now estimated at 16 million, cross-border disputes on family matters have increased in the EU. There are about 140,000 international divorces per year in the EU and around 1,800 cases of parental child abduction within the EU every year.

On 21 May 2019, in the case of O.C.I. and Others v. Romania (application no. 49450/17), the European Court of Human Rights has held that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The case concerned the interpretation of „grave risk” under international law in a child custody dispute.

The circumstances of the case – an atypical summer story

The first applicant, Ms O.C.I., a Romanian national, married P.L.R., an Italian national in 2005. The couple lived together in Italy, where O.C.I. gave birth to their children: the second applicant, P.A.R., in 2008, and the third applicant, N.A.R., in 2010 (they are Romanian nationals and also hold Italian nationality). After spending the summer holidays in Romania in 2015, Ms O.C.I. decided not to go back to her husband in Italy with their children. She said that she saw no future for them there. Moreover, she told P.L.R. that he was a bad father who mistreated his children.

The children’s father lodged a criminal complaint against his wife in Italy for child abduction in a foreign country (2015). He also brought proceedings for the return of the children to Italy, their habitual place of residence, under the Hague Convention on the Civil Aspects of International Child Abduction (2015). In his view, the mother had unilaterally changed the children’s residence which, he argued, constituted wrongful retention. Ms O.C.I. opposed the action, alleging that her husband was violent towards his children. He beat them if they disobeyed and humiliated them by calling them names. She submitted several video recordings of such violent episodes, recorded during their common life in Italy. She had encouraged her husband to seek medical help for his behaviour, but he had refused; the abuse had worsened in recent years and she had felt obliged to seek refuge in Romania. She also explained that the children had become integrated in their new environment and refused to speak with their father, they feared going back to Italy and being again subject to abuse. Moreover, she faced criminal investigations in Italy which constituted additional stress.

The Bucharest County Court allowed the father’s application for the return of the children (2016). The court concluded that the mother had influenced the children against their father. It also considered that her decision to leave Italy had been made because of marital problems and because of her own dissatisfaction. As for the allegations that the children ran a grave risk of being exposed to physical or psychological harm at their father’s hands, it found as follows: „The evidence in the file proves without doubt that the father used physical force and a raised voice to discipline his children. [P.L.R.] confirmed this in his statement before the court. The child has the right to respect for his dignity, which entails prohibition under any circumstances of any act of physical or psychological violence against the child. It is therefore evident that nothing can justify a departure from this norm.”

The first applicant appealed, and in a final decision the Bucharest Court of Appeal upheld the order to return the children (2017). The court found that the children had been subjected to physical force by their father, but that there had only been occasional acts of violence which would not reoccur often enough to pose a grave risk” (under Article 13 § 1 (b) of the Hague Convention, as grounds for an exception to the principle of returning children to the place of their habitual residence). The Court of Appeal also considered that the existence of criminal proceedings against the first applicant in Italy did not constitute grounds for refusing the return. In fact, the Court reasoned, in accordance with the European arrest warrant procedure, a criminal sentence would have the same effect regardless of whether the first applicant lived in Romania or Italy. They also found that, in any case, the Italian authorities would be able to protect the children if the risk of abuse was brought to their attention. However, the authorities have so far not been able to enforce the return order because the children have refused to go back to Italy. The applicants are all still apparently living in Romania.

Decision of the Court – enough is enough...

The application was lodged with the European Court of Human Rights on 23 June 2017. Relying on Article 3 (prohibition of inhuman or degrading treatment) and Article 8 (right to respect for private and family life) of the European Convention, the applicants complained about the order to return the children to Italy. They alleged in particular that the Romanian courts had failed to take into account the „grave risk” that they would be subject to physical or psychological harm at the hands of their father (Article 8), which was one of the exceptions under the Hague Convention to the principle that children should be returned to their habitual place of residence. For the same reasons, the applicants considered that, in failing to protect the children against the risk of abuse, the authorities had breached their positive obligations (enshrined in Article 3) to secure a safe environment for the children, free from domestic violence and corporal punishment.

The Government said that the domestic courts had examined the allegations of a „grave risk” as defined by the Hague Convention. Those courts had neither tolerated nor accepted domestic violence and had moreover reiterated in their decisions that emotional abuse of children was prohibited. Their decision to return the children to their father had been based on the assumption that the Italian system was equally capable of protecting the children’s rights.

The Court highlighted that corporal punishment could not be tolerated and States should strive to prohibit it in law and practice. The law in Romania laid down an absolute prohibition on domestic corporal punishment. However, the court statements in the applicants’ case, namely that the violence had only been occasional and would not reoccur „often enough to pose a grave risk”, ran counter to that prohibition.

The Court assessed whether the allegations of „grave risk” raised by the first applicant before the domestic courts were genuinely taken into account by those courts. Indeed, even though the domestic courts had found that the children had been abused by their father, as substantiated by video recordings and admitted by the father himself in court, they had not weighed up that information in considering the children’s best interests. Moreover, the courts had not considered whether the children were no longer at risk of being violently disciplined by their father if returned to his care. In fact, it can be inferred from the reasoning of the Bucharest Court of Appeal that the court accepted that if such a risk reoccurred, the Italian authorities would be able to react and to protect the children from any abuse of their rights, but only „if the risk was brought to their attention and supported by evidence”

On that point, the Court noted that even if there was mutual trust between Romania and Italy’s child-protection authorities under EU law (the Brussels II bis Regulation, which builds on the Hague Convention, is based on the principle of mutual trust between EU member States; see Royer v. Hungary, no. 9114/16, § 50, 6 March 2018), that did not mean that the State to which the children had been wrongfully removed has been obliged to send them back to an environment where they ran a grave risk of domestic violence – solely because it was their habitual place of residence –, leaving it up to Italy to deal with any abuse if it reoccurred.

In this connection, the Court highlighted that a child’s return cannot be ordered automatically or mechanically when the Hague Convention is applicable, as is indicated by the recognition in that instrument of a number of exceptions to the obligation to return the child (see Anghel v. Italy, no. 5968/09, § 79, 25 June 2013). The Court found that the domestic courts should have given more consideration to the risk of the children being ill-treated if returned to Italy. They should have at least ensured that specific arrangements were made in order to safeguard the children. In the light of the above, the Court concluded that the domestic courts had failed to examine the allegations of „grave risk” in a manner consistent with the children’s best interests. There had therefore been a violation of Article 8 of the Convention.

Lastly, the Court held that the applicants’ allegations of inhuman and degrading treatment had already been examined under Article 8 and so no separate issues arose under Article 3. The Court held that Romania was to pay, jointly, to the applicants 12,500 euro (EUR) in respect of non-pecuniary damage and EUR 3,645 to Ms O.C.I. in respect of costs and expenses.

 

For a list of references, click HERE.

Author: Petra Ágnes Kanyuk, PhD student, University of Debrecen, Faculty of Law

Kategória: Fundamental rightsHuman rightsBrexit Eng: 
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