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Does SC Resolution 1973 Permit Coalition Military Support for the Libyan Rebels?

Published on March 31, 2011        Author: 

In his post of yesterday, Marko notes the debate surrounding whether the Coalition now taking military action in Libya can arm the rebels fighting in that country. This question is perhaps part of a broader question of whether the coalition can provide other military aid to the rebels, for example, by providing close air support for rebel advances into towns under the control of Col Gaddafi’s forces. As Marko notes, while the US and UK  have both denied that they have made a decision to provide arms to the rebels (see here and here), they have both argued that providing arms to the rebels would not be a breach of the arms embargo imposed by Security Council Resolution 1970. In fact media reports today indicate that President Obama has authorised covert aid to the rebels. Likewise, though there have been denials of direct support from the air for rebel operations on the ground, the media reported that rebel advances on towns like Ajdabiya (and others) was only made possible because of coalition attacks against Libya military forces defending those towns. So, is this direct support for the rebels lawful? When I was asked about the legality of providing arms to the rebels at the start of this week I was of the view that this would be contrary to the arms embargo. Having thought about it a bit more, I have changed my mind about the legality question. Politically, I don’t think it ought to be done unless we know who these people are and what their aims are. The approach that my enemy’s enemy is my friend doesn’t always turn out for the best. We need only think of the experience of arming the Afghan mujahadeen in the 1980s to know that caution is required. But others know far more than I do about whether it is a wise thing to do politically and militarily. As far as law is concerned, such assistance is not, in my view, excluded by the relevant Security Council resolutions. However, the assistance that can be given is also limited by the mandate that Security Council Resolution 1973 confers. The assistance must be directed, solely, at protection of civilians and civilian populated areas.

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International Law Weekend 2011: Call for Panel Proposals

Published on March 31, 2011        Author: 

On October 20-22, 2011, the American Branch of the International Law Association and the International Law Students Association will host the annual New York-based International Law Weekend (“ILW”), in conjunction with the 90th annual meeting of the American Branch.  “ILW 2011” will bring together hundreds of legal practitioners, professors, U.N. diplomats, experts from government, NGO’s and private industry, and students.  It will feature lively and contentious panels, distinguished speakers, and delicious receptions.

The overall theme of ILW 2011 is “International Law and National Politics.”

This year’s three-day conference will focus on issues arising from the interplay and intersection of international rules and norms and domestic politics and policymaking.  To what extent do international standards influence the application and interpretation of national law including complimentary or contrary policies sought by domestic policymakers, non-governmental actors and/or civil society?  Expert panels and discussion sessions will examine these and other issues with regard to such diverse areas as human rights and humanitarian intervention, national security, immigration, trade, labor, health care and the environment.  Though this is the primary focus of the conference, other inventive ideas and proposals, especially arising from current events, are always welcome for consideration as well.

The Co-Chairs of ILW 2011 are Professor Martin S. Flaherty, Professor of Law and Co-Director of the Leitner Center for International Law and Justice at Fordham Law School, mflaherty17{at}yahoo.com, Sahra Diament of the United Nations Office of Legal Affairs, diament{at}un.org, and Jill Schmieder Hereau, Program Coordinator at the International Law Students Association, jshereau{at}ilsa.org.

The Co-Chairs invite proposals for panels for ILW 2011.  Please submit proposals by email to each of the Co-Chairs no later than Wednesday, May 4, 2011.  Please also submit a copy of your proposal to ILA president Ruth Wedgwood, at rwedgwood{at}jhu.edu and to ILA executive committee chairman John Noyes, jen{at}cwsl.edu.

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Filed under: Conference, EJIL Reports
 
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Can the Allies Lawfully Arm the Libyan Rebels?

Published on March 30, 2011        Author: 

My friend Claus Kress yesterday brought to my attention a most pertinent legal issue: In Resolution 1970, the UN Security Council imposed an arms embargo on Lybia. The embargo was reaffirmed and strengthened in op. paras. 13-16 of Resolution 1973. The embargo appears to be comprehensive; no explicit exception is made for the possible distribution of arms to the rebels. However, both President Obama and Prime Minister Cameron have deliberately left open the possibility of supplying arms to the rebels, even though they have not done so for now. What then is the legal argument in support of supplying the rebels with armaments? Yesterday Secretary Clinton remarked that “It is our interpretation that [UN Security Council resolution] 1973 amended or overrode the absolute prohibition on arms to anyone in Libya.” She was echoed today by the PM in Parliament, who said that “The legal position is clear that the arms embargo applies to the whole territory of Libya. But at the same time UNSCR 1973 allows all necessary measures to protect civilians and civilian-populated areas… We do not rule it out but we have not taken the decision to do so.” This position was confirmed by the UK foreign secretary.

This argument raises serious questions of interpretation and of the deliberate ambiguity in the drafting of UNSC resolutions. On the one hand, there are specific provisions imposing an arms embargo without exceptions. On the other, a broad phrase such as ‘all necessary measures’ is taken as overriding the embargo, thus allowing foreign powers to favour one of the parties to the armed conflict. I am not saying that this argument is necessarily wrong, but its correctness is also far from obvious. It is of course tantamount to saying that the provision of arms to organized armed groups can be a method of protecting civilians or civilian populated areas; it also has the Council taking sides in a conflict, without saying so explicitly. I am not aware of similar arguments being made so forcefully by states with regard to UNSC arms embargos – though of course recall the embargo imposed on Bosnia, and the Bosnian argument that it was void as it disabled the Bosnian Muslims to defend themselves from genocide, in conflict with a norm of jus cogens.

 

More Thoughts on the Scope of UNSCR 1973

Published on March 28, 2011        Author: 

Chimène Keitner is Associate Professor of Law at the UC Hastings College of the Law.

The American Society of International Law’s 105th Annual Meeting just wrapped up in Washington, DC. As one of the meeting’s co-chairs, I am tremendously grateful to the speakers for their thoughful and timely remarks. I also appreciate the editors’ invitation to contribute some of my thoughts on the evolving situation in Libya to this forum.

Last week, Dapo offered an assessment of the legality of targeting Muammar Gaddafi under the terms of U.N. Security Council Resolution 1973. I would like to reflect on another aspect of that resolution that came up in the comments on Dapo’s post, namely, what the resolution means when it authorizes member states to take all necessary measures “to protect civilians and civilian populated areas under threat of attack.” Dapo’s view of the resolution as a whole is that it “it is really be about stopping Gaddafi’s forces from winning the civil war in Libya.” I tend to agree with this assessment, which carries potentially momentous implications for a system that, as Dapo indicates, was not originally designed to deal with internal conflicts.

Much of the current debate has focused on whether or not the coalition in fact has the ultimate goal of regime change. It certainly could be said that some of the principals “doth protest too much” in disavowing such an aim. Although the Obama administration’s rhetoric of democracy promotion is more restrained than that of its predecessor, Robert Shrum recently opined in The Week that the situation in Libya represents precisely the convergence of American values and interests that warrants overthrowing Gaddafi, and that the current administration knows this. 

Presumably, under the Security Council resolution, the “civilian populated areas” that member states are authorized to protect may contain both civilians and those participating directly in hostilities against the government (i.e., rebel strongholds such as Benghazi). Whether the conflict in Libya is characterized as a civil war, a democratic uprising, or both, the tension between principles of external intervention and internal self-determination seems manifest.

This tension was even more evident during the U.S.-led invasion of Iraq, which is perhaps one reason that Resolution 1973 expressly excludes “a foreign occupation force of any form on any part of Libyan territory” from the ambit of authorized measures. I explore this tension at greater length in my book on The Paradoxes of Nationalism: The French Revolution and Its Meaning for Contemporary Nation Building, and I deal explicitly with the U.S. invasion of Iraq in Chapter Six. One can only hope that the coalition’s current efforts in Libya will prove less counterproductive than the earlier intervention in Iraq.

As Hamas’s 2005 victory in Gaza shows, the outcomes of popular elections are not always in the perceived national security interest of the United States or its allies. At the same time, the support for dictators that characterized U.S. foreign policy during the Cold War is morally untenable and, at least in its overt forms, decreasingly politically feasible. When, as in Libya, the object of protecting civilians appears to require removing an intransigent leader, simply eliminating foreign military occupation from the toolbox will not avoid a quagmire.

 

Arbitrators Appointed in the Mauritius v UK Case concerning the Chagos Islands

Published on March 26, 2011        Author: 

The International Tribunal for the Law of the Sea (ITLOS) has announced (see press release here)  that its President has appointed three arbitrators to serve as members of the arbitral tribunal which will hear the dispute between Mauritius and the United Kingdom concerning the ‘Marine Protected Area’ around the Chagos Islands. The dispute concerns the creation by the UK of a Maritime Protected Area (MPA) in the Exclusive Economic Zone (EEZ)  around the Chagos Islands Archipelogo. Mauritius, which claims sovereignty over the Chagos Islands,  submitted the dispute to an Annex VII arbitral Tribunal under the UN Convention on the Law of the Sea. It claims that the UK is not competent to create the MPA and that only Mauritius is entitled to create an EEZ around the Chagos Islands. Readers can find analysis of the case in a piece written on this blog  last month by my colleague Irini Papanicolopulu. According to the ITLOS Press Release:

The arbitrators are Ivan Shearer (Australia), James Kateka (Tanzania), and Albert Hoffmann (South Africa). The President appointed Ivan Shearer as the president of the arbitral tribunal. These appointments were made in consultation with the two parties to the dispute.

James Kateka and Albert Hoffan are both judges of ITLOS and Ivan Shearer, who is Emeritus Professor of Law at the University of Sydney has been ad hoc judge at ITLOS in two cases.  Read the rest of this entry…

 
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What does UN Security Council Resolution 1973 permit?

Published on March 23, 2011        Author: 

I spent much of yesterday conducting interviews with the media about the situation in Libya. One of the questions I was repeatedly asked concerned the scope of the UN Security Council Resolution 1973 which authorises the use of force in Libya.  How far does the resolution permit the coalition now acting in Libya to go? What are the objectives of the coalition military action? Does it permit the targeting of Colonel Gaddafi? The objectives set out by the resolution seem to me to broader than what is commonly thought. Para. 4 which authorises the use of all necessary means (short of an occupation force) is not just about protecting civilians but also, importantly, about protecting civilian populated areas under threat of attack. In other words, that paragraph authorises the use of force to prevent attacks on towns and cities, whether those attacks are directed at civilians or even at what would be legitimate military targets. My reading of the resolution is that it is really be about stopping Gaddafi’s forces from winning the civil war in Libya. So the resolution seems to be more than what the advocates of the responsibility to protect doctrine would suggest. This is not just about stopping international crimes it is about the restoration of peace, something closer to the original design of the Council (except that it is an internal conflict, which was not in the original design). What sort of peace though? Read the rest of this entry…

 

L’Affaire Weiler – A Brief Legal Assessment of the French Court’s Judgment

Published on March 21, 2011        Author: 

 Dr. Laurent Pech is Jean Monnet Lecturer in EU Public Law at the National University of Ireland, Galway. He has published extensively on freedom of expression and recently published “Liberté d’expression: Aperçus de droit comparé” in JurisClasseur Communication (Paris: LexisNexis, 2010) and “The Law of Holocaust Denial in Europe” in L. Hennebel and T. Hochmann, Genocide Denials and the Law (Oxford University Press, 2011).

(Author’s disclosure: In March 2010, he produced a letter (“attestation”) in favor of Prof. Weiler, in which he argued that the French court lacked jurisdiction and should sanction the plaintiff for having artificially selected the French criminal system to pursue her defamation action)

According to Article 11 of the French Declaration of the Rights of Man and of the Citizen of 16 August 1789, the right to free expression of ideas and opinion is one of the most precious human rights. This is not to say, of course, that freedom of expression is an absolute right. Indeed, Article 11 also provides that everyone may “speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.”

This is exactly what happened in relation to the right to reputation. In 1881, the French Parliament accepted that freedom of expression may be restricted in order to protect reputation. According to Article 29 of the Freedom of the Press Act of 29 July 1881, “It shall be defamatory to make any statement or allegation of a fact that impugns the honour or reputation of the person or body of whom the fact is alleged …” Whilst the French 1881 Act is criminal legislation, a person who makes a statement that is defamatory of private individuals can “only” be liable on conviction to a fine of 12,000 euro (prison sentences are still an option in some cases, for instance, defamatory statements motivated by racial hatred). Finally, it may be worth mentioning that the 1881 Act provides that alleged victims of defamatory allegations must first initiate legal proceedings against publication directors or publishers (in our present case, Prof. Weiler in his capacity as Editor in Chief of the European Journal of International Law and its associated Book Review website), before eventually suing the authors of the litigious statements, for offences committed via the press (or any other media according to a 1982 Act).

It would be difficult to deny that the French Freedom of the Press Act has had a bad name. In a few words, it is regularly criticized for being an archaic piece of legislation that fails to appropriately take into account the European Court of Human Rights’ case law on the right to freedom of expression (see e.g. Resolution 1577 (2007), Towards decriminalisation of defamation of the Parliamentary Assembly of the Council of Europe, available here). It is also not unusual for the European Court of Human Rights to censure the French courts’ interpretation and application of the 1881 Act. The judgment of the Tribunal de grande instance de Paris in the defamation case brought against Prof. Weiler, as editor in chief of the EJIL and its associated book review website (see here) , by Dr. Calvo-Goller is unlikely, however, to disappoint those who feared an undue restriction of academic freedom and potential criminal prosecution in France for any publication made available online. I will spare readers of this blog an exposé of the facts at the origin of the plaintiff’s action (for the full text of the judgment and a summary see here), to focus on the jurisdictional issue. I hope readers will forgive me for spending some time discussing the principles governing the territorial applicability of French criminal law but it is important to do so in order to realize that that the French Court was able to hold itself territorially incompetent only because of a procedural error committed by the complainant. The judgment makes nevertheless clear that had the Court found itself competent, Dr. Calvo-Goller would not have been able to prevail on the merits. Indeed, when examining Prof. Weiler’s counterclaim that the plaintiff’s action amounts to a procedural abuse, the Court indicates that the bad faith of the plaintiff is established as it is evident, on the one hand, that Dr. Calvo-Goller engaged in “forum shopping,” and, on the other hand, that the litigious book review does not go beyond “the limits of academic criticism.” The Court’s explicit and unusually strong reliance on the notions of forum shopping and academic freedom clearly indicate that this judgment is intended to discourage anyone from ever lodging a similar complaint with a French criminal court. Read the rest of this entry…

 
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Call for Scholarly Papers: The Inaugural ASIL Research Forum

Published on March 21, 2011        Author: 

The American Society of International Law calls for submissions of scholarly paper proposals for the inaugural ASIL Research Forum to be held at UCLA Law School on November 4-5, 2011.

The Research Forum is a new initiative of the Society aimed at providing a setting for the presentation and focused discussion of works in progress. The Spring Annual Meeting does this in part through its “works-in-progress” sessions, but the Research Forum aims to do this exclusively.

The Research Forum will be held in the fall and, as possible, coordinated as an integral part of the Fall ASIL Mid-Year Meeting. All ASIL members are invited to attend the Forum, whether presenting a paper or not.

Interested participants should submit a proposal (preferably 500, and no more than 1,000, words in length) summarizing the scholarly paper to be presented at the forum. Papers can be on any topic related to international and transnational law. Works-in-progress are particularly encouraged. Interdisciplinary projects, empirical studies, and jointly authored proposals are welcome.

Submissions should be sent to 2011forum {at} asil(.)org by April 30. Proposals will be vetted anonymously by the Research Forum Committee with selections to be announced by June 15.

At present, it is the intent of the Research Forum Committee to organize the selected paper proposals around common issues, themes, and approaches. Discussants, who will comment on the papers, will be assigned to each cluster of papers.

The 2011 ASIL Research Forum Committee

Laura Dickinson (ASU) CoChair
Kal Raustiala (UCLA) CoChair
Mark Drumbl (Washington & Lee)
Nienke Grossman (Baltimore)
Mary Ellen O’Connell (Notre Dame)

Filed under: Conference, EJIL Reports
 
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A Comment on Lautsi

Published on March 19, 2011        Author: 

Dr Lorenzo Zucca is Reader in Jurisprudence at the King’s College London School of Law.

Jesus can be left hanging:  A Pontius-Pilate-like Strasbourg Court decided not to remove him from the cross – pardon, from the wall of Italian classrooms.  In more technical jargon, yesterday the Grand Chamber of the ECHR reversed the decision of the second section in the Lautsi case  and concluded that the presence of the crucifix is not incompatible with the right of parents to have their children educated compatibly with their own philosophical convictions (see Joseph Weiler’s comment on previous decision here).

The decision is a defeat for everyone, not just for the appellant. It is a defeat because the Court does not provide a much needed reflection on the question of the presence of religion in the public sphere. The quality of its reasoning is very poor and unsatisfactory, as it has been noticed times and times again, even when the Lautsi decision went the other way. The Grand Chamber does not articulate its reasons, its assessment is short and brutish and only consists of 20 short paragraphs where the courts simply hides itself behind the screen of the margin of appreciation, a rather laconic euphemism for deference to the national authorities. True, deference serves the purpose of legitimizing the international court vis-à-vis ferocious national criticism which was very vocal recently in the UK parliament. But what the ECtHR does not seem to understand is that its legitimacy as an international court of human rights also crucially depends on the quality of its reasoning, that should be regarded as exemplar in articulation and depth. Without those qualities, any decision is a defeat for Justice even if it may be a Pyrrhic victory for institutional respectability.

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Security Council Passes Resolution 1973, Authorizing Use of Force Against Libya

Published on March 18, 2011        Author: 

The full text of the resolution is available here. The key provision is op. para. 4:

4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council

Note that this does not merely authorize a no-fly zone; use of force is generally authorized for the purpose of protecting civilians and civilian populated areas, so long as there is no ‘foreign occupation force of any form.’ This us a very broad authorization; the formulation does not necessarily exclude a limited use of ground forces, so long as that force is not of such intensity and duration that it constitutes an occupation. Over at Lawfare, Bobby Chesney has more analysis. The intervention against Lybia is set to commence shortly.