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Did ITLOS Just Kill the Military Activities Exemption in Article 298?

Published on May 27, 2019        Author: 
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In a May 25, 2019 interlocutory decision, the International Tribunal for the Law of the Sea (ITLOS) prescribed provisional measures in the case brought by Ukraine against Russia, ordering Russia to release three Ukrainian naval vessels and 24 Ukrainian service members seized on November 25, 2018 in an incident in the Kerch Strait. During the incident last fall, Russian Coast Guard forces, operating in concert with a Russian naval corvette and a military aircraft, fired on two Ukrainian warships and a naval auxiliary as they attempted to transit the strait against the orders of Russian authorities. The ships and their crews were captured and remain in detention in Russia, charged with violating Russian criminal law.

On April 29, Ukraine filed a case with ITLOS requesting provisional measures to order their immediate release. Such measures are authorized under article 290 of the United Nations Convention on the Law of the Sea (UNCLOS) in urgent situations to prevent a real and imminent risk of irreparable prejudice to the rights of a party, in this case Ukraine. Article 290(5) permits such measures before the merits of the case so long as the Tribunal has prima facie jurisdiction in the case. The key question was whether the Russia’s operation constituted a “military activity,” and was therefore exempt from jurisdiction in accordance with a previous Russian declaration under article 298 of UNCLOS. The Tribunal determined that Russia’s operations were not a military activity, but the decision is likely to generate unintended consequences.

The ITLOS order has effectively diminished the military activities exemption which will give pause to the 27 nations that have made such declarations, including China, France, Norway, Denmark, and the United Kingdom – and in the future, most likely the United States, which intends to make such a declaration once it accedes to the Convention. (The states are identified in paragraph 11 of Judge Gao’s separate opinion). In a decision that suggests outcome-based legal reasoning to constrain Russia, ITLOS questions the viability of the military activities exemption based on any rationale.

As part of its analysis for jurisdiction, the Tribunal avoided a determination on whether there was an armed conflict between the two states, as would appear from the application of the Geneva Conventions in article 2 common, and as I suggested in an earlier piece. Instead, the ITLOS order accepts without analysis that Ukraine and Russia are interacting during a time of peace, a dubious assumption. In doing so, the Tribunal vindicates two important rights that will be welcomed by maritime powers: sovereign immunity of warships and other government vessels and the peacetime right of freedom of navigation by Ukrainian military vessels. But in reaching this conclusion, the Tribunal diminished the military activities exemption. In a departure from the broader understanding of military activities evident in the 2016 Philippines v. China arbitration, the Tribunal found that the confrontation over innocent passage was a navigational issue, rather than one concerning a military activity, because innocent passage is a right enjoyed by all ships. The Tribunal also determined that Russia’s temporary suspension of innocent passage declared conveniently to halt the transit of Ukrainian warships was a law enforcement activity rather than a military activity. These factors led the Tribunal to conclude that Russia’s actions were “in the context of a law enforcement operation rather than a military operation.”

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Justifying Self-defense against Assisting States: Conceptualizing Legal Consequences of Inter-State Assistance

Published on May 23, 2019        Author:  and
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Cause for thought: Israel’s airstrikes directed against Iran and Syria

Israel has acknowledged to have repeatedly struck Iranian military targets in Syria. While confrontations occur frequently, the incident of January 21, 2019 has received  particular attention. Israeli guided missiles, apparently fired over Lebanese territory (UN Doc. S/PV.8449, p. 31f), hit Iranian military targets in Syria, also leading to personal and material damage of Syria. Israel invoked its right to self-defense, apparently reacting to Iran firing a surface-to-surface missile towards the Golan Heights on Sunday, January 20 from Syrian territory. Syria’s precise role in the Iranian action beyond this territorial link remains murky.

The problem: self-defense affecting assisting states

The Israeli claim to self-defense faces various legal questions (e.g. whether the attack meets the necessary threshold or whether annexed territories can be defended). This contribution does not aim to assess the Israeli claim, but shall use this example to shed light on one problem only: May the victim of an armed attack defend itself not only against the attacker state, but also against an “assisting” state?

Even if the use of force by the defending state (here Israel) against the attacking state (here Iran) is assumed to be justified by self-defense, it also forcefully infringes upon the territorial integrity of the assisting State (here Syria), as protected under Article 2(4) UNC, and warrants justification, too. The claim that strikes directed against an actor within the territory of another state are not a prohibited use of force against the territorial state has been repeatedly rebutted.

In fact, in the Security Council debate on the January incident, Syria labelled the Israeli strikes as “acts of aggression targeting the Syrian Arab Republic”, a “gross violation of international law” (S/PV.8449, p. 31f). Iran like Russia condemned the Israeli action, emphasizing the infringement of Syria’s sovereignty. Interestingly, Israel (unlike the USA or Germany) showed awareness of the problem by holding “the Syrian regime responsible for the missile that was launched against Israel from Syrian territory” (S/PV.8449, p. 8). The IDF added that “Syria paid the price for allowing Iran to conduct attacks from its soil.”

While the permissibility of self-defense against states supporting non-state actor violence is being extensively discussed, self-defense against states assisting another state has received little attention Read the rest of this entry…

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Symposium on the Genocide Convention: Is the Duty to Prevent Genocide an Obligation of Result or an Obligation of Conduct according to the ICJ?

Published on May 16, 2019        Author: 
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Editor’s note: This is the final post in our blog symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention. Read the other posts in this symposium here and here.

This post questions the findings of the International Court of Justice (ICJ) in the 2007 Bosnia v. Serbia case, according to which the duty to prevent a genocide is an obligation of conduct that can be assessed only after the occurrence of a genocide. The post first briefly explores the distinction between obligations of conduct and obligations of result on the basis of the International Law Commission (ILC)’s works and judicial practice. The post moves on to emphasise some inconsistencies in the ICJ’s reasoning in relation to the occurrence of a genocide as a prerequisite for the violation of the duty to prevent genocide. Finally, the post advances some possible explanations of the role of the event ‘genocide’ in relation to the duty to prevent genocide.

The 2007 ICJ’s Decision

In the 2007 Bosnia v. Serbia case, the Court for the first time declared that an autonomous obligation of diligent conduct to prevent genocide exists under Article I of the 1948 Genocide Convention (see my reflections here). According to the Court:

It is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible. A State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide. In this area the notion of “due diligence”, which calls for an assessment in concreto, is of critical importance. (para 430, emphasis added)

The Court went on to affirm that a breach of the duty to prevent genocide can be assessed only after a genocide has occurred. The Court took the view that:

a State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. It is at the time when commission of the prohibited act (genocide or any of the other acts listed in Article III of the Convention) begins that the breach of an obligation of prevention occurs. […] If neither genocide nor any of the other acts listed in Article III of the Convention are ultimately carried out, then a State that omitted to act when it could have done so cannot be held responsible a posteriori, since the event did not happen. (para 431, emphasis added)

However, the view that a genocide must occur before a State’s compliance with the duty to prevent genocide can be assessed ignores the fact that this duty is a due diligence obligation of conduct. This conclusion is supported by the analysis of the evolution of the notion of obligations of conduct. Read the rest of this entry…

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Symposium on the Genocide Convention: Reflecting on the Genocide Convention at 70: How genocide became a crime subject to universal jurisdiction

Published on May 16, 2019        Author: 
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Editor’s note: This is the second post in our blog symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention. Read the first post here.

The 9th of December 2018 marked the 70th anniversary of the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide 1948 by the United Nations General Assembly. Article 6 of the Convention expressly grants adjudicatory jurisdiction to the territorial State (the State where the crime occurred) and to an international penal tribunal with the acceptance of the Contracting Parties. However, the textual content of the Article has not prevented the application of extraterritorial jurisdiction to the crime, including universal criminal jurisdiction. Reflecting on the Genocide Convention at 70, this post briefly analyses the development of universal jurisdiction over the crime of genocide. It explains how Article 6 has led to the application of the universality principle to the crime, and considers what can be learned from this phenomenon in the context of the legacy of the Genocide Convention.

The origins of the application of universal jurisdiction to genocide began decades before the drafting of the Genocide Convention in 1947. Read the rest of this entry…

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Symposium on the Genocide Convention: Codification of the Crime of Genocide – a Blessing or a Curse?

Published on May 15, 2019        Author: 
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Editor’s note: This is the first post in our blog symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention. 

Codification of the crime of genocide

A lot has been written about the origins of the crime of genocide that need not be repeated here. It is well known that Lemkin originally saw genocide as a broad concept, i.e. as different acts aimed at destroying the culture and livelihood of groups (Axis Rule in Occupied Power, pp. 79-82). Along the same lines, the 1946 UN General Assembly Resolution 96 described genocide as the denial of the right of existence of entire human groups – including political ones. However, the scope of the definition adopted in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide was significantly narrower. Cultural destruction and forcible population transfer were not included in the final text, protected groups were restricted, and jurisdictional reach limited. Yet, the Convention must be understood in the context of time. Indeed, having in mind the historical background, it is quite remarkable that the Convention was adopted at all – and broad support was generated by making concessions and imposing more stringent requirements.

Since the Genocide Convention defined and codified the crime of genocide as an independent crime, the definition of genocide has remained firmly settled in international law. Perhaps prematurely, the ICJ had already proclaimed its customary status in 1951, which was subsequently fortified by the verbatim reproduction of Article II of the Genocide Convention in the statutes of international ad hoc tribunals (here and here) as well as the Rome Statute of the ICC. This surely contributed to legal certainty and, from this perspective, codification can be viewed as a blessing for the relatively consistent application of the definition of genocide at the international level. Yet, simultaneously, it was a curse, preventing the crime from undergoing a development similar to that of crimes against humanity and even war crimes. This downside of the early codification could have been at least partially addressed through teleological and evolutive interpretation of the offence. The international tribunals, however, failed to realize the potential of the definition and thus contributed to frustrations surrounding prosecutions of genocide as well as to claims that genocide today is a redundant crime. Read the rest of this entry…

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Introducing Upcoming Blog Symposium on the Genocide Convention

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Editor’s note: Starting this afternoon, the blog will host a symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention.

On 9 December 1948, the United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide in response to the Holocaust. It was designed to prevent and punish ‘acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group’. At present, 150 states have ratified this treaty in the hope that current and future generations would not have to experience such heinous atrocities as committed during the Second World War.

Over the past seventy years, the legal concept of genocide has had time to evolve and mature. States and the international community have been given the impetus to prevent, prosecute and punish genocide to deliver on their historic promise that it would happen ‘never again’. The recent 70th anniversary of the Genocide Convention inspires reflection on its development and critical assessment of its legacy.

The Nottingham International Law and Security Centre, co-directed by Professors Mary Footer and Nigel White, organised and sponsored an interdisciplinary conference to mark the ‘70th Anniversary of the Genocide Convention’ in November 2018. In three panels, the participants focused on the conceptualisation of genocide, jurisdictional matters and universality, and responsibility. Three of the best papers, one for each panel, were then selected for this small blog symposium on EJIL: Talk!. Read the rest of this entry…

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To be a Party or not to be a Party: Malaysia’s envisaged ‘withdrawal’ from its (pending) accession to the Rome Statute

Published on May 14, 2019        Author:  and
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As inter alia confirmed by its recent judgments concerning the Afghanistan situation and the Al Bashir case, the ICC currently finds itself in truly turbulent times. What is more, is that the Rome Statute has turned out to be a real treasure trove when it comes to the international law of treaties. This includes, inter alia, the ratification of the Rome Statute by Palestine and the ensuing question as to whether the accession by Palestine ought to be counted towards the quorum of 30 ratifications of the Kampala Amendment so as to provide for its entry into force (see here), as well as other intriguing questions of treaty law raised by the Kampala compromise on the crime of aggression and the way in which to eventually amend the Rome Statute (see here). The withdrawals by Gambia and South Africa, which both later, albeit for different reasons, ‘withdrew from their respective withdrawals’ before they even became effective (see here and here), as well as Burundi’s withdrawal in October 2017 (see here), and most recently that by the Phillipines, again raised various issues of treaty law. 

Yet another question of treaty law relating to the Rome Statute is emerging. After having submitted its instrument of accession to the UN Secretary General on 4 March 2019 (see here), which in accordance with Art. 126 (2) of the Rome Statute means that Malaysia would have formally become a State Party on 1 June 2019, the Malaysian Prime Minister announced on 5 April 2019 the Malaysian government’s decision to, as he put it, ‘rescind its membership of the Statute’. Read the rest of this entry…

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Passportisation: Risks for international law and stability – Part II

Published on May 10, 2019        Author: 
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Editor note: This is Part II of a two-part post. See Part I here.

Part One of the blogpost examined the recent Russian decrees on a fast track procedure for conferring Russian nationality on inhabitants of Eastern Ukraine and explained international legal principles which govern such extraterritorial naturalisations. 

III. Striking the Balance: International Legal Limits on Passportisation

The conflicting individual and governmental interests and the overarching global value of a stable repartition of jurisdictions are reconciled by posing specific legal limits on the power of a state to naturalise citizens of another state.

The Prohibition of an Arbitrary Refusal to Release One’s Nationals

The prohibition of arbitrary decisions concerning nationality issues has emerged as a standard of reference in the international law of nationality. The Report of the UN Secretary General, Human Rights and Arbitrary Deprivation of Nationality, 14 December 2009 (A/HRC/13/34), stated that “[T]he notion of arbitrariness could be interpreted to include not only acts that are against the law but, more broadly, elements of inappropriateness, injustice and lack of predictability also” (para. 25).

A state may not categorically and without any legitimate reason (i.e. arbitrarily) prevent its citizens from acquiring a different citizenship. Inversely, a state may validly oppose the naturalisation of its citizens if its governmental interests outweigh both the interests of the concerned natural persons and the interests of the naturalising state. In that case, the refusal to release its national would not be arbitrary. A state’s refusal to release a national who continues to reside within its own territory is presumptively not arbitrary.

The Requirement of a Factual Connection

International law has traditionally required that there be a factual relationship between the person to be naturalised and the naturalising state. It has never allowed a state to confer its nationality by naturalisation upon persons possessing the nationality of another state and to whom the conferring state has no factual relation at all. Read the rest of this entry…

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Filed under: EJIL Analysis, Human Rights
 
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Passportisation: Risks for international law and stability – Part I

Published on May 9, 2019        Author: 
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I. Fast track to Russian nationality

On 24 April 2019, the Russian President issued an Executive Order identifying groups of persons entitled to a “fast-track procedure” when applying for Russian citizenship otherwise regulated by the Russian Law on Citizenship (Federal Law No. 62-FZ of 31 May 2002). The decree facilitates the acquisition of Russian nationality by residents from various districts of Ukraine’s Donetsk and Lugansk regions, notably without taking residency in Russia. The regions border Russia and are struck by a military conflict between the central government and separatist forces under heavy involvement of Russia. On 1st May 2019, the President issued a second “Executive Order on Certain Categories of Foreign Citizens and Stateless Persons Entitled to a Fast-Track Procedure when Applying for Russian Citizenship”. The new fast track procedure is potentially open to around 4 million people living in the conflict area of Eastern Ukraine.

In the Security Council of 25 April 2019, the representative of the Russian Federation explained “that there is a high demand for Russian citizenship among people from south-eastern Ukraine whose living conditions Kyiv has made intolerable. In other words, Russia’s legislative initiative is a response to the aspirations of many thousands of people. It is not we who are forcing them to become Russian citizens but rather they themselves who desire it. We are simply providing them with an opportunity and significantly simplifying the process. (…) Why was it done? The conflict in Donbas has been going on for five years. For five years, the inhabitants of Donbas have been deprived of the ability to exercise their human rights and freedoms in Ukraine. They were denied the right to vote in the recent presidential elections.” “[T]he residents of Donetsk and Luhansk (…) have been deprived of income sources, pensions and benefits that other Ukrainian citizens are entitled to. They would not have survived without Russia (…). The people of Donetsk and Luhansk deserve to have reliable State care and social protection once again. (…) They are getting none of that from the Ukrainian Government, and we therefore felt compelled to offer them assistance.” (Vassily A. Nebenzia, Security Council 8516th meeting, Verbatim Record, UN Doc S/PV.8516, p. 15-16). The decrees might also respond to the Ukrainian draft language law which establishes Ukrainian as the language of the state and relegates Russian to a regional language (Bill №5670-d, reading in Parliament on 25 April 2019, not yet in force ).

The recently elected President of Ukraine spoke of “another unprecedented interference of the Russian Federation in the internal affairs of an independent state, a brutal violation of sovereignty, territorial integrity and independence of Ukraine and a complete trampling upon its obligations in the framework of the Minsk agreements. In addition, the Kremlin therefore deliberately and cynically violates international humanitarian law, which prohibits the occupation authorities from changing the citizenship of the inhabitants of the occupied territories.” (24 April 2019).

In the UN Security Council Meeting of 25 April 2019, numerous delegates criticised the Russian measures. The Slovak OSCE Chairmanship expressed “deep concern”.

The recent decrees inscribe themselves in an overall Russian policy of generously conferring its nationality on residents of those states which emerged from the break-up of the Soviet Union. In Crimea, an active Russian “passportisation” policy had allegedly been pursued since 1991, until the peninsula was annexed by Russia in 2014. In two breakaway territories of Georgia, Abkhazia and South Ossetia, passportisation was rampant especially around 2002 (see the analysis in: Independent International Fact-Finding Mission on the Conflict in Georgia, Report (“Tagliavini Report”), vol. II, Chapter 3). Russia also offers easy Russian nationality to inhabitants of Transnistria (in Moldowa).

This two part-blogpost shows that the Russian “passportisation” policy (i.e. the policy of conferring Russian nationality en masse to persons residing outside Russia) is in many respects exorbitant and risks to violate various principles of international law. Part One examines the governing principles, Part Two balances these principles, applies them to the current case, and examines the legal consequences of  exorbitant naturalisations.  Read the rest of this entry…

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Filed under: EJIL Analysis, Human Rights
 
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Reforming the International Criminal Court: Is it Time for the Assembly of State Parties to be the adults in the room?

Published on May 8, 2019        Author: 
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The self-inflicted misfortunes of the International Criminal Court continue. The recent Pre-Trial Chamber decision not to authorise the opening of an investigation in Afghanistan has already generated considerable controversy (see here, here, here, here and here). The rather surprising news that Judge Ozaki would be allowed to continue to serve part time on the Court while becoming Japan’s ambassador to Estonia has also drawn criticism. And, of course, on Monday the Al Bashir immunity decision was handed down. Amidst the hubbub, one other development has gone relatively unremarked. The first four presidents of the ICC Assembly of States Parties (ASP) have released a joint op-ed through the Atlantic Council entitled “the International criminal court needs fixing”. For present purposes, it is enough to note several key points.

The op-ed calls for “an independent assessment of the court’s functioning by a small group of international experts”. This call appears triggered by the Afghanistan decision which they see as expressing “a lack of confidence that the Court could successfully carry out the job.” The rest of the piece pursues two central points – and a cluster of worrying claims. Read the rest of this entry…

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