Home Archive for category "EJIL Analysis"

Russia’s Intervention in Syria

Published on November 25, 2015        Author: 

Previous posts on Syria (see for example here and here) have commented on the air strikes by the US-led coalition, but the Russian air strikes on Syrian territory (as reported here and here) have been largely left undiscussed. This post will analyse the legality of Russia’s actions. Russia has been acting upon the request of President Assad (see here and here), which means that the international legal basis for Russia’s use of force is intervention by invitation. First, the concept of intervention by invitation itself needs to be addressed. Second, it is contested whether an intervention is even allowed during a civil war.

Intervention by Invitation

There is no explicit reference to intervention by invitation in the UN Charter nor is it covered by article 2(4). Pursuant to that article, states shall refrain from using force “in their international relations”. Using force upon an invitation, however, is not using force in international relations as no force is used by one state against another, but the two states are working together, using the force on one side. This falls outside the scope of article 2(4). Therefore no prohibition comes into play and this type of force is allowed. The importance of valid consent (the invitation) was addressed by the ICJ in the case DRC v. Uganda. The Court dealt with the situation after the consent had been withdrawn by the DRC, thereby emphasising the importance of valid consent, yet also indirectly making clear that before the withdrawal no violation of international law occurred. Thus, intervention by invitation falls outside the scope of article 2(4), as long as the consent is valid.

Intervention in a Civil War?

The second issue, which is a contemporary topic of international law as evidenced here, questions the legality of an intervention by invitation in a civil war. Read the rest of this entry…

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Syria the Land of Impunity

Published on November 24, 2015        Author: 

FullSizeRenderThe Geneva Communiqué of the Action Group for Syria of 30 June 2012, which was endorsed by the UNSC Resolution 2118 (2013), identified key steps for a Syrian led political transition. The Communiqué problematized the “Syrian conflict” as one involving a challenge of security, safety and restoration of stability and calm. During the first half of 2015, Mr. Staffan De Mistura, the UN Special Envoy for Syria, carried out a series of consultations in Geneva with various local and international actors in the Syrian conflict, to explore views on how to “operationalize” the Geneva Communiqué. The consultations produced a proposal to set up four thematic intra-Syrian working groups, which would bring together Syrians from the government and the oppositions to discuss a range of transition topics, including a group on “safety and protection for all”. On 30 October 2015, all regional and international actors involved in the “Syrian conflict” met in Vienna and produced the Vienna Declaration, which promised to launch a “renewed political process” based on eight points of agreement. On 14 November 2015, the same group met again in Vienna and formed the International Syria Support Group (ISSG).  The ISSG pledged to bring the Syrian government and the opposition together to embark on a “political process pursuant to the 2012 Geneva Communiqué.”

Nowhere in the diplomatic literature produced so far can one find the word “impunity.” Indeed the political solution contemplated in the Geneva Communiqué, which is still at the core of the renewed political process, rests on the absence of this potentially explosive word. Instead, the Communiqué sets forth at point No. 10(d) that in order to achieve “safety, stability and calm” there needs to be a commitment to accountability for future crimes. As for accountability for acts committed during the present conflict, this must be addressed pursuant to a comprehensive package for transitional justice. The Communiqué stresses, in particular, “national reconciliation” and “forgiveness.”

The problematization of the “political process” as one involving a technocratic challenge to ensure “safety” is hugely shortsighted. The current diplomatic efforts are entirely geared towards bringing the local actors to the negotiation table. The language of “justice” and “rights” is seen as inadequate and unhelpful, as it is likely to subvert the political process. However, in the Syrian context this premise is both historically unwarranted and politically untenable. Indeed, the Syrian political process will have little chance of success if it does not address head-on the question of impunity, which is at the core of the Syrian conflict. Read the rest of this entry…

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The Constructive Ambiguity of the Security Council’s ISIS Resolution

Published on November 21, 2015        Author: 
Security Council Adopts Resolution on Fighting ISIL

UN Photo/Loey Felipe

On Friday, the UN Security Council unanimously adopted resolution 2249 (2015), condemning a series of recent terrorist attacks by Islamic State (IS, ISIS or ISIL). The text of the resolution, together with statements of Council members, is available here. This resolution was proposed by France and superseded two competing earlier drafts by Russia. The resolution determines that IS constitutes “a global and unprecedented threat to international peace and security.”

But the resolution itself is, perhaps, an equally unprecedented measure by the Security Council. The resolution is clearly designed to provide legitimacy for the measures being taken, and to be taken, against IS by giving the Council’s imprimatur to such measures. In particular, the resolution is worded so as to suggest there is Security Council support for the use of force against IS. However, though the resolution, and the unanimity with which it was adopted, might confer a degree of legitimacy on actions against IS, the resolution does not actually authorize any actions against IS, nor does it provide a legal basis for the use of force against IS either in Syria or in Iraq.

The main operative paragraph of the resolution is para 5, in which the Council:

“5.   Calls upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law, in particular with the United Nations Charter, as well as international human rights, refugee and humanitarian law, on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq, to redouble and coordinate their efforts to prevent and suppress terrorist acts committed specifically by ISIL also known as Da’esh as well as ANF, and all other individuals, groups, undertakings, and entities associated with Al-Qaida, and other terrorist groups, as designated by the United Nations Security Council, and as may further be agreed by the International Syria Support Group (ISSG) and endorsed by the UN Security Council, pursuant to the statement of the International Syria Support Group (ISSG) of 14 November, and to eradicate the safe haven they have established over significant parts of Iraq and Syria;”

Before we attempt to decipher what this paragraph actually means, it is important to note that the resolution was not adopted under Chapter VII of the Charter. Or rather, the resolution does use the “acting under Chapter VII” formula that is usually used to signal that the Security Council intends to take binding action, despite a couple of determinations in the preambular paragraphs about the existence of a threat to international peace and security, which (determinations) presumably are made under Article 39 of the Charter. In op. para. 1 of the resolution, the Council similarly “regards all such acts of [IS] terrorism as a threat to peace and security,” which again implicitly invokes Article 39. As the ICJ’s Namibia Advisory Opinion makes clear, the lack of reference to Chapter VII in a resolution does not mean that it is not to be regarded as binding nor does it mean that the resolution does not have operative legal effect. However, for the resolution to have those effects the Council must actually decide to do something or to authorize something.

Read the rest of this entry…

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EJIL:Talk! Is Now on Facebook

Published on November 20, 2015        Author: 

We are proud to announce the creation of the EJIL:Talk! Facebook page. EJIL:Talk! posts will show automatically on the timeline of those who ‘like’ our page. This new feature provides our readership with yet another platform on which to follow us – if you are on Twitter, you should already be following us there – , facilitates the circulation of our materials, and allows EJIL:Talk! posts to reach a wider audience.

We remain committed, of course, to providing academics and practitioners in all fields of international law with a site for top-notch legal analysis and a setting for high-level exchange with fellow international lawyers, less limited by the formal requirements and time constraints of the European Journal of International Law. We hope that this new feature will add to our community and facilitate the engagement of scholars, students, and professionals with EJIL:Talk!

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The ICRC’s Position on a Functional Approach to Occupation

Published on November 18, 2015        Author: 

It is always interesting to observe the evolution of the (infrequent) public official positions that the International Committee of the Red Cross adopts on controversial questions of international humanitarian law. The particular position I’d like to flag is the one on a functional approach to the end of belligerent occupation. This position is clearly of particular importance to the question of whether Gaza continues to be occupied by Israel, which I’ve looked at here on the blog a couple of times before (see here and here).

Some years ago the ICRC held a series of expert meetings on various issues arising out of the law of belligerent occupation, including the beginning and end of occupation. The 2012 report on the meetings is available here. The issue of the end of occupation proved to be controversial, especially on the example of Gaza. Some degree of consensus emerged that the legal criteria for ending an occupation should be the same as for establishing the occupation, but that the evidentiary factors to be taken into account may differ. Thus, an occupation would end if the occupant lost effective control of the territory or obtained valid consent from the sovereign of the territory to its presence there.

Also in 2012, the ICRC legal advisor dealing with the occupation issue, Tristan Ferraro, published an academic article on the beginning and end of occupation in the International Review of the Red Cross. Like most pieces written by ICRC legal advisors, the article includes an initial footnote which specifies that the ‘article was written in a personal capacity and does not necessarily reflect the views of the ICRC.’ In the article Ferraro argues in favour of a functional approach to occupation, where the end to an occupation should not be seen as an all or nothing switch.

With regard to the Gaza controversy in particular, the ICRC took the position (shared by many humanitarian NGOs) that Gaza remains occupied by Israel. In 2014, writing in the Israel Law Review, the ICRC president noted (p. 179) that ‘In the view of the ICRC, Israel continues to be bound by obligations under occupation law that are commensurate with the degree to which it exercises control.’

Last week, the ICRC published its challenges to IHL report (available on Just Security), written for the forthcoming ICRC conference in December (see also Gabor Rona’s post on the report here). And here, on pp. 11-12, we have an extensive articulation of the ICRC’s official position:

Read the rest of this entry…

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Beneficial Ownership and International Claims for Economic Damage: Occidental Petroleum v. Ecuador and Restoring Limits to Investor-State Arbitral Tribunals’ Jurisdiction Ratione Personae

Published on November 16, 2015        Author: 

On 2 November 2015, the ICSID ad hoc Committee composed of Prof. Juan Fernandez-Armesto (Committee President), Justice Florentino Feliciano, and Mr. Rodrigo Oreamuno in Occidental Petroleum Corporation v. The Republic of Ecuador (ICSID Case No. ARB/06/11) partially annulled the massive US $1.769 Billion award of damages issued on 5 October 2012 by the majority of the arbitral tribunal (Mr. Yves Fortier, President, and Mr. David A.R. Williams) over the strong dissent of arbitrator Prof. Brigitte Stern. Agreeing with arbitrator Stern’s position that Occidental Petroleum had split its ownership to give a 40% ownership interest to a Chinese company Andes/AEC (Committee decision, para. 204), the ICSID ad hoc Committee whittled down the damages awarded to only reflect the actual 60% ownership of claimant Occidental Petroleum in the assets that Ecuador expropriated. The Committee’s decision significantly brought down the compensation value for the expropriation to the 60% as owned by Occidental Petroleum to US$1.061 Billion (Committee decision, paras. 586 and 590). The Committee treated the Chinese company Andes/AEC’s beneficial ownership of 40% of the expropriated assets as outside the scope of its jurisdiction over covered investors protected under the US-Ecuador BIT.

In issuing its landmark decision, the Committee stressed proscribed limits under the law of investor-State claims; the distinct confined mandate and authority of arbitral tribunals as derived from the creation and consent of States; and the ensuing narrow availability of the investor-State treaty arbitral system only to treaty-covered investors: Read the rest of this entry…

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China’s View of International Litigation: Is the WTO Special?

Published on November 13, 2015        Author: 

Yesterday, Geraldo Vidigal put up a really interesting post looking at recent patterns of use of the World Trade Organization’s dispute settlement system. One thing that was particularly striking to me was the extent to which China has participated in the WTO dispute settlement system given its previous position on resolution of disputes by international tribunals. Geraldo’s chart of the latest 100 disputes at the WTO shows that only the United States, the EU and Japan have initiated more cases at the WTO in recent years than China (with Japan initiating just one more case than China in this period). Given that the WTO system is the most widely used inter-state dispute settlement system, it might not even be an exaggeration to say that: in terms of numbers of cases brought before international tribunals by states, China is one of the most enthusiastic state users of international tribunals! Of course, that enthusiasm is only before one particular system.

In October 2010 I posted here on EJIL:Talk a piece titled “Is China Changing its View of International Tribunals?“in which I noted that China’s view on international tribunals more broadly seemed to be changing. At the time, I noted China’s participation in the Kosovo Advisory Opinion at the ICJ, which was the first time that the People’s Republic appeared in oral hearings before the ICJ. I also pointed out China’s participation, around the same time, in the written and oral phases of International Tribunal for the Law of the Sea’s (ITLOS) first advisory proceedings –  the Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber). In 2014, China submitted a substantial written statement in the Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC) though it did not take part in the oral hearings.

Of course, we have non-participation by China with respect to the United Nations Convention on the Law of the Sea Annex VII arbitration initiated by the Philippines (in respect of which the tribunal issued an award on jurisdiction a couple of weeks ago). Read the rest of this entry…

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UN Climate Change Negotiations: Last Tango in Paris?

Published on November 10, 2015        Author: 

The Paris Climate Change Conference starting on 30 November 2015 is tasked to set the world on a path to address the greatest challenge to ever face humankind, by adopting a new climate agreement. It was hoped that agreement in Paris would bring an end to the impasse that has long affected international climate governance. However, the outlook for the conference is rather bleak. We are just a few weeks away from the conference, but Parties remain far from reaching any agreement. Negotiations under the body entrusted to draft the text of the Paris agreement, the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), have abundantly shown that Parties’ views on how to tackle climate change still significantly diverge. At the end of the last ADP session before Paris, progress on the preparation of the text of the agreement remained limited. In fact, Parties even backtracked on the little compromise they had managed to achieve at earlier ADP sessions. This post reflects on the difficulties experienced in the work of the ADP and on their implications for the Paris conference.

Ever since 1992, Parties to the United Nations Framework Convention on Climate Change (UNFCCC) have attempted to agree on measures to stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent ‘dangerous anthropogenic interference with the climate system.’ The international scientific body entrusted to assess climate change, the Intergovernmental Panel on Climate Change (IPCC), has indicated that such a level requires keeping the increase in global annual average temperature below 2° C as compared with pre-industrial times. Over twenty years after its adoption, however, the UNFCCC has struggled to keep the world within the limits indicated by the IPCC. In fact, global emissions of greenhouse gases have anything but diminished.

The reason international climate governance has proven to be such an intractable affair relates both to the enormity of the challenge at hand, as well as to the gaping disparity in States’ capacity to tackle climate change. The main instrument adopted to stabilize greenhouse gas concentrations in the atmosphere under the UNFCCC, the 1997 Kyoto Protocol, fundamentally acknowledged this gap. Building upon a static differentiation between ‘developed’ and ‘developing’ countries, the Protocol imposed binding emission reduction targets only on the first. With ever growing emissions in emerging economies, like China and India, however, the IPCC has repeatedly flagged that both developed and developing countries need to reduce their emissions.

To make matters worse, political will behind the Kyoto Protocol has significantly faltered. Read the rest of this entry…

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Announcements: Pluralist Approaches to International Criminal Justice Conference; CEILA Inaugural Lecture; 3. Call for Papers: The Rapoport Center Human Rights Working Paper Series

Published on November 7, 2015        Author: 

1. “Pluralist Approaches to International Criminal Justice” Conference. On 7-8 January 2016, the Center for International Criminal Justice (CICJ) and the Faculty of Law, Vrije Universiteit Amsterdam will host a conference on pluralism and international criminal law. The event is held with the financial support of the Royal Netherlands Academy of Arts and Sciences and concludes the research project “Dealing with Divergence? National Adjudication of International Crimes” funded by the Netherlands Organisation for Scientific Research (NWO). The conference provides a platform for an interdisciplinary and critical debate on the methodological, institutional and cultural diversity in international criminal justice (see further information). Speakers include Elies van Sliedregt, Kai Ambos, Robert Cryer, Megan Fairlie, Kevin Jon Heller, Charles Jalloh, Frédéric Mégret, Sarah Nouwen, Nicola Palmer, Darryl Robinson, Carsten Stahn, Sergey Vasiliev, Alex Whiting, Harmen van der Wilt and others (programme). The conference will take place in the Tinbergenzaal, Het Trippenhuis, Kloveniersburgwal 29, Amsterdam. Attendance is free but places are limited. Please register before 28 December.

2. CEILA Inaugural Lecture: ‘EU Law and International Law in the 21st Century: Is the Court of Justice afraid of other International Jurisdictions?’ This lecture – the inaugural lecture of the newly established Centre for European and International Legal Affairs (CEILA) at Queen Mary School of Law –  will be given by Professor Maciej Szpunar, Advocate General at the Court of Justice of the European Union on Friday 13 November 2015. See here for further details and to register. The lecture will be held at Arts2 Lecture Theatre, Arts2 Building, School of Law, Queen Mary University of London, Mile End Road, London E1 4NS. The lecture is being held to mark the start of the CEILA’s activity on the study and research of the relationship between International Law and EU Law. Professor Szpunar will be exploring the legal background surrounding the interaction between the Court of Justice and other regimes, addressing their frictions, synergies, and mutual impact, to offer a comprehensive account of their co-existence and point the way forward.

3. Call for Papers: The Rapoport Center Human Rights Working Paper Series. The Rapoport Center Human Rights Working Paper Series (WPS) is happy to announce a call for papers for the 2015 – 2016 academic year. The WPS seeks innovative papers of the highest quality by both researches and practitioners in the field of human rights. Acceptance to the WPS series provides authors with an opportunity to receive feedback on works in progress and stimulate a lively, productive conversation around the subject matter of their paper. This process is designed to prepare papers for publication in academic journals or other venues. This year we are particularly interested in papers exploring the relationship between human rights and inequality, natural resources governance, and the future of labor. Please see the submission guidelines here and  contact rcwps {at} law.utexas(.)edu with any inquiries.

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Filed under: EJIL Analysis

In this Issue

Published on November 6, 2015        Author: 

This issue opens with a brace of articles on topics relating to the treatment of alternative dispute resolution in international institutional settings, albeit from quite different perspectives. Jaime Tijmes introduces the possibility of using final offer arbitration to settle disputes in the World Trade Organization, and explores how it might best be introduced. In contrast, Lorna McGregor uses the jurisprudence of the European Court of Human Rights to consider the kinds of tests that supranational bodies should and do use to determine the compatibility of a particular dispute resolution process with the right of access to justice.

In Roaming Charges, we feature a photograph by Janet McKnight of Places of Impasse: Scars on Beirut Structures That Refuse to Fall. We encourage our readers to submit photographs for publication to ejil {at} eui(.)eu.

The issue continues with two entries under our regular rubric, EJIL: Debate!. In the first, Catharine Titi argues that the European Union is in the process of introducing a new model of investment treaty that is ‘set to change the face of international investment law as we know it’, while in his Reply Martins Paparinskis introduces a note of caution regarding methodology, as well as a note of scepticism regarding Titi’s conclusions. The second EJIL: Debate! in this issue opens with an article by Devon Whittle, which applies Oren Gross’ ‘extra-legal measures model’ to conceptualize the UN Security Council’s Chapter VII powers as a form of emergency powers. In his Reply, Gross expands upon Whittle’s proposal to consider the application of the same model to another issue in international relations, namely unilateral humanitarian intervention. We invite comment on both debates on our blog, EJIL: Talk! Read the rest of this entry…

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Filed under: Editorials, EJIL, EJIL Analysis