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Can UNSC Presidential Statements be Legally Binding?

Published on April 15, 2009        Author: 

The United States government now apparently thinks so. A couple of days ago the Security Council adopted a presidential statement condemning the recent missile launch by North Korea (press release here; text here). In response to reporters questioning why the Council was unable to adopt a formal resolution, and whether this meant that the presidential statement was merely imposing political, rather than legal obligations on the DPRK, Susan Rice, the US Ambassador to the UN, said the following:

First of all the United States views presidential statements, broadly speaking, as binding. In this instance, it is more than binding in that it adds to an existing Chapter 7 sanctions regime. So in our view, there is no doubt that the measures that will be imposed as a consequence of this presidential statement by the 24 or 30 of April will occur and will be binding.

Source: US Mission to the UN; see also this CNN report. According to another report, Ambassador Rice also said that the presidential statement “is a strong and legally binding outcome of the Security Council which meets all of the objectives that we have.” Her remarks were echoed by British Ambassador John Sawers, who called the proposed draft “a formal and binding position of the council.” (source: AP).

So, it appears that at least two of the P-5 now take the position that presidential statements can qualify as binding decisions of the Council. This is news – maybe not terribly big news, but news nonetheless. Readers are of course aware that many scholars (and states) have historically been of the view that only formal Chapter VII resolutions of the UNSC can be legally binding. The ICJ disagreed with that proposition in its Namibia advisory opinion, holding that Article 25 of the Charter’s notion of Council ‘decisions’, which are binding in nature, are not confined merely to Chapter VII resolutions, and are subject to no particular requirement of form.

The Council’s practice, which is quite deliberately full of ambiguity, on the whole seems to be supportive of the broader view (for an excellent and succinct primer on UNSC decisions, see this research report). But even within this broader view the orthodoxy has so far been that presidential statements impose only political, not legal obligations – see generally S. Talmon, ‘The Statements by the President of the Security Council’, (2003) 2 Chinese JIL 419, at 447 et seq. The importance of the issue (though it should by no means be overstated) is that a broader notion of binding decisions allows for greater diplomatic flexibility in decision-making within the UNSC.

The UNSC’s treatment of nuclear proliferation and North Korea is indeed an excellent example of how such flexibility can be of practical use. Russia and China in particular have consistently attempted to prevent what they saw as overreaction by the other permanent members. They have especially seemed keen on precluding any possible use of force against the DPRK, particularly through an implied UNSC authorization argument a la Iraq 2003. Thus, the UNSC first adopted Resolution 1695 (2006), which in its chapeau did not reference Chapter VII, nor made an Article 39 determination, but rather invoked the language of Article 24 of the Charter. That it was not a Chapter VII resolution does not necessarily mean, however, that it imposed no legal obligations on the DPRK. Later Resolution 1718 (2006) was explicitly a Chapter VII resolution, with op. paras. 15 & 16 seemingly deliberately designed to prevent an implied authorization argument.

And now we have this presidential statement, the most recent product of negotiations between the P-5. It remains to be seen whether the UNSC’s practice (and the member states) will accept the possibility of legally binding decision-making through presidential statements, which are after all adopted by consensus – a more rigid requirement than for a resolution.

In other news, the DPRK has decided to withdraw from the six-party talks, restart its nuclear program, and expel IAEA inspectors. Oh well…

 

New Issue of the European Journal of International Law out: Further Discussion of Articles to follow here on this blog!

Published on April 14, 2009        Author: 

The latest issue of the European Journal of International Law has recently been published. This is Volume 20, No. 1. In his editorial, Professor Joseph Weiler (Editor in Chief) reflects on the founding of the Journal 20 years ago and on developments over the first 2o years of EJIL. He also points out that the current Volume of EJIL will be an anniversary volume with anniversary symposia on carefully selected topics in each issue of this volume. The table of contents of the current issue is as follows:

Special Anniversary Article
Martti Koskenniemi, “The Politics of International Law – 20 Years Later

Changing Paradigms in International Law: A Symposium
Benedict Kingsbury, “The Concept of ‘Law’ in Global Administrative Law”
Eyal Benvenisti & George W. Downs, “National Courts, Domestic Democracy, and the Evolution of International Law”
Yuval Shany, “No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary”
Martin A. Schain, “The State Strikes Back: Immigration Policy in the European Union”

Article
Marc Weller, “Settling Self-determination Conflicts: Recent Developments”

EJIL: Debate!
Mónica García-Salmones, “Taking Uncertainty Seriously: Adaptive Governance and International Trade: A Reply to Rosie Cooney and Andrew Lang”
Andrew Lang & Rosie Cooney, “Taking Uncertainty Seriously: Adaptive Governance and International Trade: A Rejoinder to Monica Garcia-Salmones”

Critical Review of Jurisprudence: An Occasional Series
Pasquale De Sena & Maria Chiara Vitucci, “The European Courts and the Security Council: Between Dedoublement Fonctionnel and Balancing of Values”

Abstracts of all of these articles and full texts of some are available, free of charge, on the website of the journal.

One of the purposes of this blog is provide a forum for the discussion of scholarship published in EJIL. To that end we will, in the coming days and weeks, be hosting online symposia on the articles published in this issue. The purpose of these online symposia is to facilitate engagement with and conversations about the work published in the journal. We will invite particular scholars to comment on the articles published in the journal. However, we very much encourage readers to take part in this conversation by providing comments on work published in the journal or on the comments made on those articles.

This week, we will host the EJIL: Debate! between Mónica García-Salmones on the one hand and Rosie Cooney  and Andrew Lang  on the other hand on the topic of “Taking Uncertainty Seriously: Adaptive Governance and International Trade”.

Filed under: EJIL, EJIL Reports, Journals
 
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EJIL at Twenty!

Published on April 12, 2009        Author: 
EJIL at Twenty: A Family Affair
I am both the most and least qualified person to mark the 20th anniversary of the European Journal of International Law. In its organizational aspects, social scientists would probably comment – à titre juste - that EJIL demonstrates a low degree of institutionalization. It has, from its inception, been a family affair and to a surprising degree has remained so till this day. Make no mistake! Our editorial Board today is quite different from the original Founding Editors, but a certain familial, enterprising, at times iconoclastic,even mischievous spirit remains. In writing about EJIL I am, thus, in the mode of a proud parent. Caveat Lector !

In these days of easy travel and exotic holidays, children (at least of the European affluent) are often conceived in venues quite distant from their place of birth. Not only in biological life does conception precede gestation and birth. EJIL was conceived in the Fall of 1987 in, well, the Quadrangle of the Michigan Law School in a conversation between Bruno Simma and myself. Maybe it is not all that surprising. Not infrequentlydistance provides both perspective and clarity. It was time, we both agreed,that there was a European Journal of International Law . I am sure that, at least in my mind, part of the motivation was a certain rebellion at the dominance of the American Journal of International Law and dissatisfaction with the national context of the many (excellent) European international legal journals. As a life-long student of European integration I had only recently moved from Europe to the USA to take up Eric Stein’s Chair and having an EJIL seemed, well, so self-obvious it did not in fact require too much justification.

We became, shortly afterwards a Ménage à Cinq - joined as we were by Nino Cassese and Pierre-Marie Dupuy and our hard-working original Managing Editor, Renaud Dehousse. Philip Alston, an adopted EJIL child, became soon after an organic member of that original family. Gestation and birth quickly moved to Florence – where the European University Institute has provided a home to EJIL ever since.

Self-obvious or not, to launch the EJIL we had to draft a Statement of Intent (today, no doubt, it would have been called a Mission Statement). Rereading it today, as well as rereading the original Editorial which made liberal use of that Statement produces predictably ambivalent feelings and reactions. Be that as it may, publisher interest was keen and the Journal was launched to a rather sceptical world, not least the world of established national European International Law journals.

Some of the features ‘ intended ‘ in that Statement fl ourished, others did not come to fruition and yet others shrivelled on the branch and dropped. EJIL started its life with two issues a year. It then moved to four issues and then even five. Starting with this issue, although we will maintain the overall annual number of pages printed, we will go back to four issues a year. We discovered in short order that the publication world does not like bilingual journals; we discovered, too, that our original idea of translating pieces was not only prohibitively expensive but unsatisfactory to author, translator and reader. Although French was dropped as the second language of the Journal, we have made great efforts over the years to help submissions written in English by non-native speakers. I think the results speak for themselves. We are very proud of our occasional series The European Tradition in International Law and you may expect more instalments. By contrast we have phased out most of the ‘ Services ‘ that we originally contemplated. In part, the practical difficulties of systematically maintaining surveys with a skeletal staff and unpaid Editors defeated us. But with the advent of the internet we ourselves have phased out some of these. As I have written in an earlier Editorial, the dynamics of ‘ staying current ‘ and debating recent developments have changed. It is not self-evident that the paper version of a journal is the best place to fulfil that function and maintain that conversation. I find myself increasingly writing to impatient authors: ‘ If your piece will be dated in two years, it fits uneasily the present editorial policy of EJIL. ‘

One of our most fateful decisions was not to cede ownership of the Journal to any publishing house. This, for example, enabled us to change our original publishers when we were not happy with their performance. It enables us to maintain an identity which is distinct from the large stables of publisher-owned journals. Our autonomously run website, www.ejil.org, was a pioneer in the field, and the availability free-of-charge of the entire EJIL on line, one year after publication, is another benefit of this independence. Of course, the family grows: we enjoy now a very vibrant Scientific Advisory Board whose members will, in intervals of three years, rotate through the Editorial Board. ESIL was conceived in the bosom of EJIL - a rib from its chest ( www.esil-sedi.eu) – and so of course is EJIL:Talk! our new Blog. (The recent string on events in Gaza is particularly worth a visit – sober and judicious in content and tone. see here, here, here and here )

In our very first Editorial we wrote:

Naturally, it is not the purpose of the Journal to revive a new ‘ Eurocentric ‘ tradition in international law. Whether a genuinely European approach does exist or what contours it may eventually take, remains to be seen. The Journal will not engage in any engineering in that direction. Contributions from scholars world-wide, gravitating towards the concerns of the Journal will be welcome.

I would be much less emphatic than I was 20 years ago in trying to describe, let alone define, a European approach to International Law. I suppose at that time we had to convince people about the need and utility of establishing this new Journal. I hope, even if I am a very biased ‘ parent ‘ , that by now no one regrets our Chutzpah of 20 years ago.

This is a time for celebration: We celebrate EJIL , its staff, contributors, subscribers and readers. But we are also acutely aware that we suffer from many shortcomings. We will be inviting suggestions for improvement from our readers on this blog and we will award a free subscription for one year to those whose suggestions are adopted.

EJIL at Twenty: The Anniversary Volume

 We will be marking our birthday with this special Anniversary Volume. You will, of course, have noticed the design change to our cover. A little bit like the design change to the Editorial Board – new fresh elements grafted on to the old and established … ! In each issue we will publish an ‘ Anniversary Article ‘ and an Anniversary Symposium.In conversation with the Board of Editors and Scientific Advisory Board, we decided to focus on some central themes where we think international law, and the study of international law, has seen some signifi cant changes over the last 20 years. International law and science is one such area and will feature in Issue 4, International law and globalization is another and will feature in Issue 3. If we had suggested these topics for a symposium 20 years ago, they would have seemed avant-garde. Today they are central. The symposium for Issue 2 will focus on aspects of the use of force. When EJIL was conceived we were still in the Cold War era! In this issue our symposium will examine some changing paradigms, in the law itself, in the world and in the scholarship of international law. We believe these symposia are a nice way to mark our anniversary. We also believe that every issue of EJIL is academically superb and intellectually exciting. There is, after all, a birthday every year, is there not?!

Filed under: Editorials, EJIL
 
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Second Thoughts on the Crime of Aggression

Published on April 9, 2009        Author: 

Professor Andreas Paulus holds the Chair of Public and International Law at Georg-August-University Göttingen. He is a member of the Scientific Advisory Board of the European Journal of International Law. He has served as counsel of the Federal Republic of Germany in the LaGrand case (Germany vs. United States) and as Adviser to the German team in the Certain Property (Liechtenstein v. Germany) cases before the International Court of Justice.

In his post on the Legal Position of ICC Parties and Non-Parties Regarding Aggression, Dapo Akande has shown that it is by no means assured that the Assembly of States Parties will be able to agree on a procedure for agreeing on a definition of the crime of aggression in the ICC Statute, let alone on the substance of a definition itself. The purpose of this post is different, however. Based on a discussion of the crime of aggression at this year’s ASIL Annual Meeting, I continue to have serious reservations as to the very goal of defining the crime of aggression at the present stage of development of the international law of the use of force [for a more extensive treatment, see my piece “Peace Through Justice?” in the Wayne Law Review 50 (2004) 1-35]. The inclusion of the crime in the jurisdiction of the Court at this particular moment may not only be ineffective, but has considerable potential to harm both the ICC and general international law. In my opinion, it is simply not good enough, as one panel participant at the ASIL meeting put it, that we do not know the effects of such a definition, but that a formulaic compromise could be found and the rest be left to the Court itself. Rather, dealing with one of the most serious issues of all times, the crime of aggression should only be included when it promises to have positive effect. Not to be misunderstood: I have been a supporter of the Court from the beginning. But that does not mean that the Court is a panacea that can only do good.

According to the agreed definition in Article 8 bis of the proposal of the Working Group, “‘crime of aggression’ means the planning, preparation, initiation or execution, […] of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” In my view, there are at least four reasons why this definition of the crime of aggression would do more harm than good at the present time:

1) The meaning of a “manifest” violation remains unclear, in spite of the attempt by the Working Group to clarify it. According to at least one member of the ASIL panel, “manifest” relates to the evidence for a violation. But that would amount to a confusion between evidence and substance of a crime. The terms “character, gravity and scale” rather suggest that certain acts of aggression are larger than others and therefore subject to prosecution. The drafting history would point to the inclusion of a threshold for prosecution “to exclude some borderline cases.” Read the rest of this entry…

 

ICRC Report to CIA: Treatment of High Value Detainees Amounted to Disappearance and Torture

Published on April 7, 2009        Author: 

Nehal Bhuta is Assistant Professor of Law at the University of Toronto and a member of the EJIL’s Scientific Advisory Board. . He has worked with the International Justice Program of Human Rights Watch and was a consultant with the International Center for Transitional Justice in New York. In 2008/2009 he is a Hauser Research Scholar at New York University Law School.

The New York Review of Books has today posted in full the ICRC’s report (of February2007) to the CIA based on interviews with 14 “High Value Detainees”  (HVDs) who were “rendered” to CIA-run “blacksites” and held there for several  years, before finally being transferred to Guantanamo. The ICRC interviewed the HVDs one at a time as to their treatment, and provides quite a nauseating narrative of abuse, degradation and humiliation. Unsurprisingly, the ICRC concludes that the treatment met the legal definition of both enforced disappearance and torture. According to the Report’s Conclusion:

 All of the fourteen were subjected to a process of ongoing transfers to places of detention in unknown locations and continuous solitary confinement and incommunicado detention throughout the entire period of their detention. The fourteen were placed outside the protection of law during the time they spent in the CIA detention program. The totality of the circumstances of which they were held effectively amounted to an arbitrary deprivation of liberty and enforced disappearance, incontravention of international law.

Moreover, and in addition to the continuous solitary confinement and incommunicado detention, which was itself a form of ill-treatment, twelve of the fourteen alleged that they were subjected to systematic physical and/or psychological ill-treatment. This was a consequence of both the treatment and the material conditions which formed part of the interrogation regime, as well as the overall detention regimes. This regime was clearly designed to undermine human dignity and to create a sense of futility by inducing, in many cases, severe physical and mental pain, and suffering, with the aim of obtaining compliance and extracting information, resulting in exhaustion, depersonalization and dehumanization.

The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constitutes a torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel inhuman or degrading treatment.

The alleged participation of health personnel in the interrogation process and, either directly or indirectly, in the infliction of ill-treatment, constituted a gross breach of medicine ethics and, in some cases, amounted to participation in torture and/or cruel, inhumane, or degrading treatment.

One thing that struck me when reading the report was the similarities  between the nature and purpose of the techniques used by the Americans, and those used by the Egyptian and Syrian (and Iraqi) intelligence services. The latter are all much more “low-tech” but have the same aim: to crush the spirit and personality of the detainee by a devastating combination of physical and psychological mistreatment administered repeatedly over time. Indeed, some of the techniques are exactly the same: beatings, confinement in small spaces, enforced nudity, and deprivation of basic hygiene facilities. The idea is that even if detainee is saying anything (including fabricating information just to stop the pain), by breaking their will one will eventually hear from them everything that they might know, and thus obtain intelligence that can be used for further inquiries and interrogation.

None of this is about ticking bombs – indeed, the techniques presume a fairly prolonged regime of mistreatment. It is about crushing a human being’s sense of themselves as human.

 
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What’s in a Name: The GWOT, Redefinition Accomplished

Published on April 2, 2009        Author: 

These past few months have seen the emergence, or rather the beginning of the emergence of the Obama’s administration’s policy towards the fight against global terrorism. A significant part of that policy is the new administration’s relationship towards international law. While some have pointed out (disapprovingly or not) that the Obama administration is continuing many of the policies of its predecessor, for example in relation to the state secrets doctrine, others have expressed much optimism, particularly in regard of some of the high-ranking appointments within the administration, such as those of Harold Koh or Anne-Marie Slaughter.

At this time it is of course much too early to tell whether the new administration will take international law into consideration seriously or not. Optimism may well be warranted, but it should in any case be a tempered, cautious one. The recent brief of the Obama administration in the Guantanamo litigation that we discussed earlier (see here and here) at best sent an ambivalent signal. On the plus side, the brief explicitly invokes international law, while its dropping of the term ‘enemy combatant’ is not only commendable as a matter of policy, but as Dapo explained also has implications on the question of targeting. On the other hand, the new administration basically retained the previous administration’s preventative detention standard, with a little bit of rebranding, even though this standard was simply conjured up out of thin air. Even more importantly, it retained the Bush administration’s position that the United States is engaged in some sort of global, amorphous armed conflict with Al-Qaeda, to which the international laws of war apply.

This last position is particularly troublesome. The Obama administration has dropped the ‘global war on terror’ or GWOT meme, now apparently redefining it as ‘overseas contingency operations’ (see more here and here, courtesy of Jon Stewart and the Daily Show). But the substance of the position is still the same, and we have still heard no explanation why this conflict is an armed conflict in the sense of IHL, outside the undisputed (and limited) non-international armed conflicts in Afghanistan, Iraq, and perhaps Pakistan. As was acknowledged at an excellent panel on closing Guantanamo at the ASIL meeting last week, this question is of fundamental importance, with wide-ranging implications on issues such as detention or targeted killings, and it still remains unresolved.

Read the rest of this entry…