What does it mean to ‘internationalize’ a maritime dispute? Accusations of ‘internationalization’ of the maritime disputes in the South China Sea have been strident over the past weeks, most recently from the 18 April 2016 Joint Communique of the Foreign Ministers of the Russian Federation, the Republic of India, and the People’s Republic of China, which stressed that “Russia, India and China are committed to maintaining a legal order for the seas and oceans based on the principles of international law, as reflected notably in the UN Convention on the Law of Sea (UNCLOS). All related disputes should be addressed through negotiations and agreements between the parties concerned. In this regard the Ministers called for full respect of all provisions of UNCLOS, as well as the Declaration on the Conduct of Parties in the South China Sea (DOC) and the Guidelines for the implementation of the DOC.” (Joint Communique, para. 21). Russian Foreign Minister Sergei Lavrov was also reported to have observed to Chinese media in Moscow during the Russia-China-India April 2016 trilateral summit that “[attempts to internationalize the issue] are completely counterproductive. Only negotiations, which China and the ASEAN are pursuing, can bring the desired result; namely, mutually acceptable agreements” – a sentiment echoed by Chinese Foreign Minister Wang Yi who was also reported to have voiced his opposition to the ‘internationalization’ of the South China Sea dispute on the basis of the Philippines’ “unilaterally-proposed arbitration case”. Chinese President Xi Jinping reiterated the call for negotiations only between the states involved, reportedly implying nations outside the region such as the United States have “no role in regional disputes”. The Russia-China-India trilateral statement came one week after the G7 Summit in Hiroshima, Japan, yielded the April 11, 2016 G7 Foreign Ministers’ Statement on Maritime Security, which stated, among others, that the G7 “express[es]… strong opposition to any intimidating, coercive or provocative unilateral actions that could alter the status quo and increase tensions, and urge all states to refrain from such actions as land reclamations including large scale ones, building of outposts, as well as their use for military purposes and to act in accordance with international law including the principles of freedoms of navigation and overflight. In areas pending final delimitation, we underline the importance of coastal states refraining from unilateral actions that cause permanent physical change to the marine environment insofar as such actions jeopardize or hamper the reaching of the final agreement, as well as the importance of making every effort to enter into provisional arrangements of a practical nature, in those areas.” (G7 Statement, para. 5). Read the rest of this entry…
It was nice to read Professor Zimmermann’s post on the issue of membership of Palestine and Kosovo in the Permanent Court of Arbitration (PCA), as this matter should get more attention from the community of international lawyers. I have already dealt with some of the relevant legal issues in an ESIL Reflection of 11 March 2016 which Professor Milanović has kindly referred to in a comment to Professor Zimmermann’s post. I would like to use this opportunity to engage with some issues raised by Professor Zimmermann, namely: whether the Netherlands should have raised proprio motu the issue of Kosovo’s accession to the 1907 Convention; whether there has been an ‘entente ulterieure’ among the member States of the PCA; what are the powers of the PCA Administrative Council and what is the value of its decision of 4 January 2016, and; what is the way forward concerning Kosovo’s accession to the 1907 Convention.
Calling a meeting of the PCA Administrative Council proprio motu
There was no need for the Netherlands as State depositary to raise proprio motu the matter of Kosovo’s accession to the 1907 Convention within the framework of the PCA Administrative Council. Any State who had an issue with Kosovo’s accession could have called for a meeting of the Administrative Council, even at short notice, like Serbia did, albeit not being a party to the 1907 Convention. Also, it must be noted that by the time of the 4 January 2016 meeting of the PCA Administrative Council, only three out of the 116 Member States of the PCA, namely Russia, Serbia and Mexico seemed to have raised an issue concerning Kosovo’s membership in the PCA. Finally, given that more than half of the member States of the PCA recognize Kosovo as an independent State, there was no need for the Netherlands to raise this issue proprio motu.
Entente ultérieure among PCA member States
Contrary to what Professor Zimmermann claims, there has been no ‘entente ultérieure’ along the lines of Article 60 of the 1899 Convention and Article 94 of the 1907 Convention. The December 1959 agreement among the PCA member States simply authorized the Government of the Netherlands, as State depositary, to send an invitation to new members of the United Nations which were not yet a party to the PCA or whose membership position was unclear. The aim was to increase the membership of the PCA. The document to which Professor Zimmermann refers to as ‘UN support’ is a Study prepared by the Secretariat in 1968 concerning the succession of States to multilateral treaties. Read the rest of this entry…
Palestine at the Gates of the Peace Palace: The long and windy road towards Palestinian membership in the Permanent Court of Arbitration
To Be or not to be a Party …
It took two lengthy sessions of the Administrative Council of the Permanent Court of Arbitration (‘PCA’ ) before it decided, on March 14, 2016, to confirm that the ‘State of Palestine’ is a contracting party to the 1907 Hague Convention for the Pacific Settlement of International Disputes (‘1907 Convention’) and hence also a member of the PCA. The decision was made by vote, for the first time in the long history of the PCA, with 54 states voting in favor and 25 abstentions. Notably, the parallel accession of Kosovo is still ‘under review’. This development raises a whole set of legal issues ranging from the role of the depositary in situations of contested statehood, to issues of treaty interpretation, as well as finally the legal consequences of Palestine now having become a member of the PCA.
In order to understand the legal implications of the decision, it is necessary to recall some of the most important steps that led to its adoption. Both Palestine and Kosovo, had within a short space of time (namely on 30 October 2015 (Palestine) and on 6 November 2015 (Kosovo)), submitted their accessions to the 1907 Convention. These accessions were acknowledged by the depositary, the Dutch government, on 17 November 2015 on its depositary website. The website also indicated that the said Convention would enter into force for Palestine on 29 December 2015 and for Kosovo on 5 January 2016, a move that was (somewhat prematurely, as we will see) welcomed by the Kosovo Ministry of Foreign Affairs. Upon the request of Serbia, the Administrative Council of the PCA then met on January 4, 2016, i.e. just one day before the Kosovar accession was supposed to become effective, and decided to keep the situations of Kosovo and Palestine ‘under review’, which in turn led the Depositary to ‘strike out’ the accessions of Palestine and Kosovo, with both of them then listed in the following manner:
“Parties (5 January 2016):
Party Ratification Entry into force
Kosovo 06-11-2015 (T) 05-01-2016
Palestine 30-10-2015 (T) 29-12-2015 ”
This in turn then led to a request by a group of Arab States for yet another urgent meeting of the Administrative Council of the PCA. This meeting was supposed to deal with the status of Palestine vis-à-vis the 1907 Convention, given that by the time the above-mentioned decision of January 4, 2016 had been made to keep the situations of Kosovo and Palestine ‘under review’, Palestine had already become a contracting party of the Convention with effect from December 29, 2015. Hence, the action by the depositary had amounted, as far as Palestine was concerned, to a de facto suspension of a pre-existing treaty membership. Read the rest of this entry…
Trade Agreements, EU Law, and Occupied Territories (2): The General Court Judgment in Frente Polisario v Council and the Protection of Fundamental Rights Abroad
This is a follow-up to my July post on Action for Annulment Frente Polisario v Council (Case T-512/12), a case before the General Court of the European Union (GC) in which Frente Polisario – the National Liberation Movement for Western Sahara – seeks the Annulment of the EU Council decision adopting the 2010 EU-Morocco Agreement on agricultural, processed agricultural and fisheries products. The GC delivered its judgment yesterday, both recognizing the standing of Frente Polisario and granting the (partial) annulment of the decision, with implications for EU-Morocco relations and for EU external relations law more broadly.
(1) Standing of Frente Polisario under Article 263 TFEU
As regards standing, the most striking aspect of the judgment is that the Court accepted the Frente’s entitlement to plead as a ‘moral person’, with the ‘necessary autonomy’ to challenge a decision of the EU legislator (paras. 50-53), without reference to the sui generis character of Frente Polisario or to the unique situation of Western Sahara. This would seem to open the door for other ‘autonomous entities’, even those with no claim to international legal personality, to challenge EU decisions under Article 263 TFEU.
By the same token, the Court fell short of recognizing the Frente’s legal personality under international law. Read the rest of this entry…
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 Greek Sovereign Debt Crisis, the Right to be Free from Economic Coercion, and the Greek Election
The Greek sovereign debt crisis has occasioned much discussion on a number of issues that are of interest to international lawyers, in particular after the 25th of January 2015, when the left-wing SYRIZA party (Greek acronym of the full name, literally the ‘Coalition of the Radical Left’), having won the election by some considerable margin, formed a government whose strategy was to challenge Greece’s creditors over the much despised (in Greece, that is) Greek bailout programme. These issues include: the question of the odiousness of Greek debt (and whether it can be repudiated; interestingly the UN GA passed a Resolution on 11 September 2015 regarding the ‘basic principles on sovereign debt restructuring processes’, during the vote for which the caretaker government of Greece opted to abstain), the issue of German reparations and of the compulsory war loan of 1942, as well as the issue of economic coercion into a new bailout agreement (commented on here) which Greece accepted in July and August 2015 (and which led to the splintering of the governing party and to fresh elections scheduled for September).
In this post, just ahead of the snap election that has been called for 20 September 2015, I will briefly discuss the bailout programme between 2010 and 2014 and explain the arguments on the basis of which it was challenged by the SYRIZA-led government (section I). Then I will describe the negotiation which led to the new agreement, which has been seen (in many circles at least) as an attempt at regime change in Greece (section II). Finally, I will argue that this episode does not constitute unlawful economic coercion, as there is no right of a State to be free from economic coercion in international law (section III). That subject I treat in much more detail in a paper written for the project led by Dan Joyner and Marco Roscini on the ‘Fundamental Rights of States’. The paper is now available on SSRN and will appear, along with other relevant papers, in a special issue of the Cambridge Journal of International and Comparative Law. Read the rest of this entry…
This is Part II of a two-part post. See Part I here.
Suspension of membership
A second category of FIFA membership issues related to international law relates to possible suspension of membership. Under Art. 14 FIFA Statute, it is the FIFA Congress that is responsible for suspending a member association, such suspension requiring a three-quarter majority of the Members present and eligible to vote. In case of a positive vote on such suspension, other FIFA member associations may for the duration of the suspension no longer entertain sporting contacts with the suspended member.
Although not constituting a suspension in the technical sense, it is worth noting that after World War II even after the German Football Association (DFB) had been refounded, it took until 1950 that its full FIFA membership rights were reinstated at the 1950 Bruxelles FIFA congress.
The first time suspension from FIFA stricto senso came up was in the 1950s vis-à-vis South Africa after a FIFA emergency committee had found in 1955 that the South African Football Association (SAFA), representing only white minority football clubs, did not constitute a national association within the meaning of relevant FIFA rules. It thereby somewhat foreshadowed the practice of the Credentials Committee of the United Nations General Assembly, which, as is well-known, ever since 1974 had considered that representatives of the white minority regime in South Africa could not represent South Africa for United Nations purposes. On 26 September 1961, at the annual FIFA conference, the South African football association was then formally suspended from FIFA, which suspension was however lifted in January 1963, albeit only for a short time. Soon thereafter, namely in 1964, and given the increased representation from African and Asian soccer associations within FIFA, the suspension of South Africa’s football association’s membership was re-imposed before South Africa was then, in 1976, formally expelled from FIFA. Finally, the South African association was re-admitted in July 1992 in the wake of the fundamental political changes then taking place in South Africa. This demonstrates how the policy of FIFA and its member associations was, if not influenced, by then at least parallel to, the concurrent development of modern international law related to the prohibition of racial discrimination.
Yet another development leading to the suspension of a national football association occurred during the Yugoslav crisis after the Security Council had, acting under Chapter VII, adopted resolution 757 (1992), and had thereby “[d]ecide[d] that all States shall (…) [t]ake the necessary steps to prevent the participation in sporting events on their territory of persons or groups representing the Federal Republic of Yugoslavia (Serbia and Montenegro)” (see para. 8 lit. b) of the text) Read the rest of this entry…
On 12 June 1015, the FIFA Executive Committee appointed former South African government minister Tokyo Sexwale to lead a monitoring committee to oversee issues related to the development of football in Palestine, and alleged interferences, by Israel, with such development. This committee was established on the basis of the decision by the 65th FIFA Congress in May 2015 after the Palestine Football Association had withdrawn its proposal to have the Israel Football Association suspended from FIFA. While this development has largely been overshadowed by the recent developments concerning alleged instances of corruption involving FIFA officials, and the ensuing announcement by the current FIFA’s President, Sepp Blatter, to resign from his position, it sheds light on the international law underpinnings of decisions made by FIFA when it comes to the status of contested territories in which a given national soccer association is based. What is more, it demonstrates how, over the years, the practice of FIFA has changed in light of developments of international law and what impact international law has when it comes to the current dispute FIFA is confronted with.
Membership in FIFA
During its early years, the FIFA Statute had simply provided that the organization consisted of “the Associations recognized by FIFA as the Associations controlling Association Football in their respective countries, provided that only one Association be recognized in each country” (see FIFA Handbook, 1st ed. 1927, p. 15; see also H. Homburg, FIFA and the ‘Chinese question’ 1954 – 1980: an Exercise of Statutes, Historical Social Research 2006, p. 69 et seq. (71)). Since 1937, FIFA had however already admitted “associations in a colony or dominion” which could then opt for directly joining FIFA whenever the “national football association of the mother country” [sic!] had signaled its consent (ibid., p. 71), thus being implicit evidence of the limited international personality of such dependent territories at the time. In the same vein, the FIFA 1937 Statutes had also provided that “[f]or countries placed under the protectorate of another country, the same principles as for dominions for colonies will be in force.” (ibid.).
As of today, Membership in FIFA is governed by its ‘Regulations Governing the Admission of Associations to FIFA’, Principle 1 of which currently provides that “[a]ny association that is seeking admission to FIFA must put forward an application that contains detailed information on its organisation, its sporting infrastructure and its territory”. Accordingly, each and every membership organization must provide data on the underlying scope ratione loci of its sphere of activities, which in case of territories, the status of which under international law is subject to dispute, might prove difficult. At the same time, Principle 3, para. 1, lit. a) thereof, dealing with the ‘Contents of application’, provides, apart from formalities, that any application for membership must include “[d]ocuments that show that the applicant represents a country in accordance with article 10 of the FIFA Statutes.” Art. 10 FIFA Statutes in turn, dealing with the admission of nationals soccer associations to FIFA, provides in its para. 1 that “[s]ubject to par. 5 and par. 6 below, only one Association shall be recognised in each Country”. For historical reasons, para 5 then provides that “[e]ach of the four British Associations [i.e. England, Scotland, Wales and Northern Ireland] is recognised as a separate Member of FIFA”, which thereby by the same token e contrario shows that these regions would otherwise not qualify as ‘countries’ for FIFA purposes. What is more is that Art. 10 para. 6 FIA Statute further provides that “[a]n Association in a region which has not yet gained independence may, with the authorisation of the Association in the Country on which it is dependent, also apply for admission to FIFA.” It is in light of these statutory provisions that football associations from ‘territories’ as divergent as Aruba, the British Virgin Islands, ‘Chinese Taipei’, Hong Kong, the Faroe Islands, as well as New Caledonia, are as of today all members of FIFA, the lack of statehood of the respective underlying ‘territory’ notwithstanding. Read the rest of this entry…
A democratically elected president has lost control of his country and fears for his safety. He flees and seeks refuge in a more powerful neighbouring State. He writes a letter as the legitimate President, inviting his host State to take military action against the insurgents who have forced him into exile. The host State does so. Will such a situation meet with condemnation or support from the international community? Does it depend on whether the President’s name is Yanukovych or Hadi, and the intervening State is Russia or Saudi Arabia?
Russia’s Sputnik news agency has been quick the draw the parallels between the Russian intervention in Ukraine in 2014 (the jus ad bellum aspects of which have previously been discussed on this blog, including by myself – see here, here and here) and the continuing Saudi-led intervention in Yemen in 2015, seeking to highlight the divergent reaction to two seemingly very similar situations to skewer alleged Western hypocrisy. In contrast, the US State Department’s spokesperson, Marie Harf, denied the parallels between the two cases when quizzed about the issue at a press briefing:
QUESTION: … People have been asking why is it that the president, the Yemeni president, who fled from his capital, remains legitimate in your eyes.
HARF: Well, I think —
QUESTION: Whereas, like another president who fled. (Laughter.) […]
. . .
HARF: It’s completely different.
QUESTION: My question is the same. The similarities between the two cases are striking.
HARF: In that there aren’t many? […]
QUESTION: There are a lot, I think, but anyways —
HARF:Okay. We can agree to disagree.
This blog post is a tentative exploration of the issues raised by a comparison of the two cases. Are there clear standards for identifying the government of a State, for the purpose of determining who can validly consent to military action on the State’s behalf, or are these standards malleable enough that powerful States can produce whatever legal outcome they want? Read the rest of this entry…
I’m happy to report that OUP have now published a collection of essays edited by Sir Michael Wood and myself on The Law and Politics of the Kosovo Advisory Opinion. Michael and I are especially happy with the cover, which is gloomy in a very nice way. Our intro to the book is available here, while a smattering of draft chapters is also freely available on SSRN.
Here are the blurb and the ToC:
This volume is an edited collection of essays on various aspects of the 2010 Kosovo Advisory Opinion of the International Court of Justice. The main theme of the book is the interplay between law and politics regarding Kosovo’s independence generally and the advisory opinion specifically. How and why did the Court become the battleground in which Kosovo’s independence was to be fought out (or not)? How and why did political arguments in favour of Kosovo’s independence (e.g. that Kosovo was a unique, sui generis case which set no precedent for other secessionist territories) change in the formal, legal setting of advisory proceedings before the Court? How and why did states supporting either Kosovo or Serbia choose to frame their arguments? How did the Court perceive them? What did the Court want to achieve, and did it succeed in doing so? And how was the opinion received, and what broader implications did it have so far? These are the questions that the book hopes to shed some light on. To do so, the editors assembled a stellar cast of contributors, many of whom acted as counsel or advisors in the case, as well a number of eminent scholars of politics and international relations whose pieces further enrich the book and give it an interdisciplinary angle. The book thus tells the story of the case, places it within its broader political context, and so attempts to advance our understanding of how such cases are initiated, litigated and decided, and what broader purposes they may or may not serve.