By Tobias Thienel

The Grand Chamber of the European Court of Human Rights has recently heard argument in the case of Micallef v Malta, in which the applicant complains of a lack of impartiality in a judge, on account of some rather strange things the judge has said. That obviously happens all the time at Strasbourg. The only embarrassing aspect of this case is that the judge in question, Giuseppe Mifsud Bonnici, Chief Justice of Malta in 1985, went on to join the European Court (from 1992 to 1998).

The Chamber judgment conveniently declined to give the name of the judge (come to think of it, they usually do – clever…), but the oral proceedings before the Grand Chamber brought up the name, and the (allegations of) rather odd behaviour on the judge’s part.

Specifically, the case is about the impartiality of a judge where one of the parties before him is represented by his own brother, and the other party suggests wrongdoing on the brother’s part. In just such a case, Mifsud Bonnici CJ is said to have rather lost his temper. On hearing that his brother was said to have done something objectionable, he apparently became quite angry, threatened to report this scurrilous, baseless allegation to ‘the competent authorities’ (presumably the Bar Council or similar), and suspended the hearing.

Continue reading →

By Tobias Thienel

Perhaps somewhat surprisingly, the General Assembly of the United Nations has voted to request an advisory opinion of the International Court of Justice on the legality of Kosovo’s unilateral declaration of independence. (It may be noted that the question is only about the claim to independence as such, not about the conduct of other States in supporting that claim.)

Leaving the merits of the question for another day, I would like to note now that some States (most notably Albania and the United States) have voted against the request for an advisory opinion, and may come to make submissions to the Court seeking to dissuade it from addressing the question. This raises some legal questions as to when the Court may or should refuse to give an advisory opinion. Continue reading →

By Tobias Thienel

The State of Texas last night committed between four and six violations of international law in one go. That must be a record even for the Lone( Sta)r State. Here’s hoping that it is, and will remain so for some time.

Texas has, of course, done this by executing José Ernesto Medellín. In doing so, it has violated, most obviously, the ICJ judgment in the Case concerning Avena and Other Mexican Nationals (para. 153(11)) and the ICJ Order instituting provisional measures in Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (para. 80(b)). None of this is even remotely controversial; indeed, the United States repeatedly acknowledged, in the ICJ no less, that Mr. Medellín’s execution, in the circumstances prevailing yesterday, would violate the terms of the ICJ judgment (see pp. 13, 14 and 17 of the transcript of oral argument in the latest ICJ hearing).

But the list goes on… Continue reading →

By Tobias Thienel

A few weeks ago, I reported on this blog that a High Court case had been brought to force the British government to hold a referendum on the Treaty of Lisbon, which is to reform the European Union. Judgment in the case was delivered today, in which the Court (Richards LJ and Mackay J) dismissed the claim. The government is now under no obligation to hold a referendum. It appears, failing further decisions conditional on any appeal, that it will now proceed to declare the ratification of the Treaty. The relevant legislation has already been through Parliament, and has received the Royal Assent. All that remains is for the government to declare ratification on the international level. The outcome of R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin) perhaps wasn’t all that surprising. Even so, my earlier guess of how the claim would be dismissed has not quite been confirmed. The claim was not in terms declared to be non-justiciable. However, the Court’s reasoning wasn’t a million miles from that option. It held that the original government promise of a referendum on the Treaty Establishing a Constitution for Europe did not contain an implicit promise that the same would be done for any later treaty containing much the same terms, which the claimant argued was the Treaty of Lisbon. The promises on the old, later demised treaty could not carry any such implication, because the later treaty could not possibly have been expected at the time. The Court further held – and this is where I think there is a strong link to the justiciability issue – that it was in no position to say that the Treaty of Lisbon was practically the same as the Treaty Establishing a Constitution for Europe. That assessment, the High Court said, ‘depend[ed] primarily (…) on a political rather than a legal judgment.’ There were ‘no judicial standards by which the court [could] answer the question’ (para 34). The Court further doubted in terms that the matter was ‘justiciable at all’, and said that the assessment by a House of Commons committee and, interestingly, by the Dutch Council of State, was in any event not unreasonable in the sense of English administrative law (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). Note that the High Court was careful not to pass judgment directly on the political issues. It did not nearly criticise either the British or the Dutch government. It was always unlikely that it would do anything of the sort. Taking the matter to court never was a very promising plan. [The Court also let on that the claim might have failed on a number of other grounds, on which it did not elaborate.] So, the present European crisis has not been exacerbated by the High Court. I, for one, would have been stunned had it been.

 By Tobias Thienel

The U.S. Supreme Court today struck down a Louisiana statute authorising imposition of the death penalty for the rape of a child: Kennedy v. Louisiana. The crime in question was awful beyond words, but the Court held that passing sentence of death for it violated the prohibition of ‘cruel and unusual punishment’ under the Eighth Amendment to the Constitution. That was an express application of the concept of ‘evolving standards of decency’ that the Court has previously regarded as controlling application of the Amendment, but about which the conservative members of the Court are less than happy. As may not have surprised anyone, today’s decision was therefore made by a majority of only 5 to 4. The usual suspects line up on either side as expected. The decision only contains the most passing reference to international opinion imaginable (in that it cites an earlier ‘evolving standards’ case as looking to international opinion), and no reference at all to international law (so far as I can make out). Even so, I would suggest that the Court has done the right thing from the point of view of international law. International law, I would argue, required that (a) the death penalty could not be extended to apply to crimes to which it had not previously applied, and (b) it could not in any event be imposed for the offence at issue in Kennedy. Continue reading →