The Oxford Martin School Programme on Human Rights for Future Generations is seeking three Postdoctoral Research Fellows. This interdisciplinary research programme, which I will co-direct, will commence in January 2013 and will focus on the extent to which human rights constitutes an appropriate framework for confronting some of the most serious problems facing current and future generations. Within this shared framework the research programme focuses on three of the most urgent aspects of insecurity: armed conflict, poverty and environmental change. This programme is a collaboration of academics in the Faculty of Law, the Faculty of Philosophy, and the Department of Politics and International Relations, at the University of Oxford. The Research Fellows will have completed (or be about to to complete) a doctorate in Law, Philosophy, Politics or International Relations. Each of the posts is for three years starting in January 2013 or as soon as possible thereafter.
Jure Vidmar is Leverhulme Early Career Fellow in the Faculty of Law, and Research Fellow at St Johns College, University of Oxford. He has written widely on the process of State creation (see SSRN page here), including: ‘Explaining the Legal Effects of Recognition’ (2012) International and Comparative Law Quarterly 361.
On 29 November 2012, with 138 votes in favour, nine against and forty-one abstentions, the General Assembly adopted Resolution 67/19, which, inter alia, “accord[ed] to Palestine non-member observer State status in the United Nations…” This post considers whether the vote in the General Assembly objectively confirms that Palestine is a state and/or whether the General Assembly on 29 November 2012, in fact, created a new state (a matter considered briefly by Dapo at the end of his post on the Resolution). In essence, did the Resolution change anything in terms of legal status and did Palestine on 29 November become more of a state than it was on 28 November? The post thus narrowly focuses on the implications of Resolution 67/19; it does not intend to clarify Palestine’s legal status in general.
In this instance, Palestine’s legal status could be implicitly clarified in two ways. One way would be if the Resolution meant admission to the international organisation, which prescribes statehood as a prerequisite for membership. The other possibility is that by voting for the Resolution which accords “to Palestine non-member observer State status” [emphasis added], those states voting in favour implicitly recognised Palestine as a state. Indeed, the Resolution here says that Palestine is a state. What is the legal significance of this phrasing and of the fact that 138 states are happy with it? Did the 138 states voting in favour thus create a state by (implicit) recognition or at least confirm Palestine’s legal status?This post will argue that the General Assembly resolution itself and the voting behaviour of states neither altered nor clarified the legal status of Palestine. On 29 November 2012, Palestine did not become more or less of a state than it was before. The Resolution may well be a significant step in an internationalised political process which could ultimately clarify and settle Palestine’s legal status. But the Resolution of 29 November 2012 does not have any direct legal implications for Palestine’s statehood. Read the rest of this entry…
Last week, the UN General Assembly voted by 138 to 9 (with 41 abstaining) “to accord to Palestine non-member observer State status in the United Nations”. Thus, Palestine which has been an observer at the UN since 1974 has had its status within the UN upgraded to being an observer State. There has been much euphoria on one side as a result of this decision, and dismay on the other side. However, what are the implications, if any, of this decision. It is thought that one reason why Israel opposed the change, though it asserts that the decision achieves nothing, is that characterising the Palestinian as an observer State would give Palestine access to legal, particularly judicial, remedies that it otherwise would not have (see BBC Q & A report here). It was reported that the United Kingdom, which in the end abstained from voting, was prepared to vote in favour of the resolution, if Palestine had been prepared to pledge not to ratify the Rome Statute of the ICC or to seek to utilise the International Court of Justice. So though the granting of observer Status does not change “the facts on the ground”, it is thought that it would change the legal position of Palestine under international law. But does it? Are there new legal options open to Palestine as a result of the resolution and does the resolution constitute Palestine as a State?
Any student of international law will be familiar with the debate between the declaratory theory of recognition of States and the constitutive theory. Theory, practice and judicial decisions favour the declaratory theory and assert that recognition does not create Statehood. Although last week’s decision does not grant Palestine membership of the UN (which would require Security Council approval), the decision to grant observer State status to Palestine is an act of collective recognition of the statehood of Palestine. If that decision is capable of effecting the legal changes hoped for (by proponents) or feared (by those oppose the decision), this will provide strong support to the view that collective recognition is capable of creating Statehood. Read the rest of this entry…
Julian Assange gave an interview to the BBC yesterday – available here – which I commend to readers; it’s only 10 minutes long. Assange has of course had a long history of Messianic self-victimization and refusing to submit to legal process in Sweden and the UK on charges of sexual assault. I won’t even go into the momentous irony of a supposed champion for the freedom of speech taking refuge in the embassy of a country whose regime is generally not regarded as being very friendly to said freedom, or indeed of that country criticising the UK as imperialist whilst simultaneously violating the UK’s sovereignty by unlawfully harbouring a fugitive from justice. But while this BBC interview is a continuation of a long tradition on his part, I must say that until I had watched it I had not realized just how absolutely awful and cringe-worthy Assange is as a human being – he was not simply uncivil to the unfortunate BBC journalist interviewing him (herself admittedly not say an Edward R. Murrow), but was a first rate, frothing at the mouth kind of bully. His frequently completely uncritical supporters may want to take note.
My favourite moment in the interview comes at about 3:35 when he says, apparently as conclusive evidence that the UK Supreme Court decision dismissing his appeal against extradition to Sweden was completely wrong, that ‘in two academic articles [holding up two fingers] the Cambridge International Law Journal has condemned the findings of the Supreme Court.’ He is in fact referring to these two blog posts by Tiina Pajuste and Cameron Miles (both of which I recommend, who are rightly critical of the Court’s application of Art. 31(3)(b) VCLT) on the website of the Cambridge Journal of International and Comparative Law (on whose academic review board I happily sit, in the spirit of full disclosure). Now how adorable is that? Abscoding from the law on the pretext that the decision of the highest court in the land was criticized in a blog post or two. I see much potential here!
(For our previous coverage of the Assange saga and the analysis of the pertinent legal issues readers can click on ‘Diplomatic Asylum’ in the categories tab below).