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Home Archive for category "States and Statehood"

The Jus ad Bellum and the Airstrikes in Yemen: Double Standards for Decamping Presidents?

Published on April 30, 2015        Author: 

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…

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Filed under: Government, Use of Force
 

The Law and Politics of the Kosovo Advisory Opinion

Published on April 20, 2015        Author: 

The Law and Politics of the Kosovo Advisory OpinionI’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.

Read the rest of this entry…

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Mauritius v. UK: Chagos Marine Protected Area Unlawful

Published on April 17, 2015        Author: 

On 1 April 2010, the UK declared the world’s largest Marine Protected Area (MPA) around the Chagos Archipelago. The Archipelago is one of 14 remaining British overseas territories, administered by the UK as the British Indian Ocean Territory (BIOT). In contrast to other British overseas territories such as the Falklands/Malvinas and Gibraltar, BIOT is not on the UN list of non-self-governing territories. There is currently no permanent local population because the UK cleared the archipelago of the Chagossians between 1968 and 1973.

Mauritius and the UK both claim sovereignty over the Chagos Archipelago. The largest island of the Chagos Archipelago – Diego Garcia – has since the late 1960s housed the most important US military base in the Indian Ocean. The UK leased the island for defense purposes to the US in 1966, prior to Mauritian independence in 1968. The 50-year lease of Diego Garcia is due to be renewed in 2016.

In the Matter of the Chagos Marine Protected Area Arbitration (Mauritius v. UK), a tribunal constituted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS) issued its award on 18 March 2015. The tribunal found that the UK’s declaration of the MPA disregarded Mauritius’ rights, rendering the MPA unlawful. The award raises the prospect that the renewal of the lease in 2016 will require the UK to meaningfully consult Mauritius.

Mauritius made four submissions to the tribunal:

First: The UK was not entitled to declare a MPA because it was not a coastal state under UNCLOS (the ‘sovereignty claim’, according to the UK)

Second: The UK was prevented from unilaterally declaring the MPA due to Mauritius’ rights as a coastal state under UNCLOS

Third: The UK may not take any steps to prevent the Commission on the Limits of the Continental Shelf from making recommendations to Mauritius in respect of any full submission to the Commission that Mauritius may make

Fourth: The UK’s declaration of the MPA was incompatible with substantive and procedural obligations under UNCLOS

The jurisdictional part of the award is centered on whether the four submissions concern the ‘interpretation or application of UNCLOS’ under Article 288 UNCLOS. This blog entry concentrates on the merits as regards the Fourth Submission. Read the rest of this entry…

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The UK House of Commons calls for Palestine to be recognised as a State.

Published on October 14, 2014        Author: 

Yesterday, the UK House of Commons overwhelmingly adopted a resolution, by 274 votes to 12, which stated that “this House believes that the government should recognise the state of Palestine alongside the state of Israel”, which was amended to include the words “as a contribution to securing a negotiated two-state solution”. This resolution (or motion) is not binding on the government whose official policy is that it “reserves the right to recognise a Palestinian state bilaterally at the moment of our choosing and when it can best help bring about peace”. Government ministers did not vote on the motion in accordance with a long—standing procedural policy that they do not vote on motions introduced by backbenchers (members of Parliament who do not hold ministerial office), and a number of pro—Israeli MPs were absent from the debate, as well as much of the Conservative Party.

The House of Commons debate recalls that in the UN General Assembly when it adopted Resolution 67/19 ((29 November 2012) which “accord[ed] to Palestine non-member observer State status in the United Nations”. The voting for this resolution was 138—9, 41 abstentions (including the UK). The implications of that resolution were discussed in this blog, eg, here, here, and here.

The House of Commons vote is essentially symbolic rather than determinative, and the BBC has reported that a former Foreign Secretary, Sir Malcolm Rifkind, who supports a two—State solution in the Israel—Palestine conflict stated during the debate:

“Symbolism sometimes has a purpose, it sometimes has a role, but I have to say you do not recognise a state which has not yet got the fundamental ingredients that a state requires if it’s going to carry out its international functions and therefore, at the very least, I would respectfully suggest this motion is premature.”

Ha’aretz, one of the leading Israeli newspapers, in its report on the vote, noted that Israel’s ambassador to the UK, Daniel Taub, decided not to give interviews in advance of the vote, in an attempt to ensure that because there was no official acknowledgment by Israel, this would undercut its importance.

The symbolism of this motion, however, goes beyond the vote and beyond the Chamber of the House of Commons. It might well reverberate in international circles, and Ha’aretz has also reported that the UK ambassador to Israel, Matthew Gould, while restating that the vote would not alter the government’s view on recognition, that the issues raised by this debate should not be ignored:

“Separate from the narrow question of recognition, I am concerned in the long run about the shift in public opinion in the U.K. and beyond towards Israel,” [says Gould.] “Israel lost support after this summer’s conflict, and after the series of announcements on settlements. This Parliamentary vote is a sign of the way the wind is blowing, and will continue to blow without any progress towards peace.”

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Disentangling the Knots: A Comment on Ambos’ ‘Palestine, ‘Non-Member Observer’ Status and ICC Jurisdiction’

Published on May 27, 2014        Author: 

2014.05.25.Valentina PhotoValentina Azarov (pictured left) is Lecturer in Human Rights and International Law, Al-Quds Bard College, Al-Quds University, Palestine. Chantal Meloni2014.05.22.FotoTessera2 (pictured right) is Adjunct Professor of International Criminal Law, University of Milan, Italy and Alexander von Humboldt fellow, Humboldt University of Berlin.

In a recent post on ‘Palestine, non-Member Observer Status and ICC Jurisdiction’, Kai Ambos raises important points that require, in our view, some basic clarifications. While many of these arguments have been made previously by eminent experts and practitioners, they have become particularly relevant with the recent accessions by Palestine to 20 international treaties (see here and here) including some of the most important international human rights and humanitarian law instruments, as well as a letter dated 8 May 2014 addressed to President Abbas by 17 human rights groups calling for Palestine to seek access to the ICC.

Arguably the most critical issue raised by Ambos concerns the 2009 Declaration lodged by the Palestinian government pursuant to Article 12(3) of the International Criminal Court Statute accepting the jurisdiction of the ICC. Ambos claims that this Declaration is void because, in his view UN General Assembly Resolution 67/19 (2012), which granted “non-member observer state status” to Palestine does not possess retroactive effect. However, as explained below, a GA resolution is not constitutive, nor even declarative of the existence of a ‘State’, since, strictly speaking, formal recognition is a state act (Crawford 2006, 27-28). It merely provides further indication of Palestine’s treatment as a ‘State’ by international actors. In fact, as will be argued, the ICC could have exercised its jurisdiction over Palestine on the basis of the 2009 Declaration, even prior to the UN GA Res 67/19.

Validity and ‘Retroactivity’ of the 2009 Declaration 

At the outset, Ambos claims that the 2009 Declaration was “not validly lodged,” citing a November 2013 Report on Preliminary Examination Activities by the ICC Prosecutor’s Office (OTP). However, there are conspicuous differences in the language used by the ICC Prosecutor in this report and in its decision of 3 April 2012 not to open an investigation. The official 2012 decision does not hold that the declaration was not validly lodged. Rather, in that ‘decision not to decide’ (see Dapo Akande), the Prosecutor stated that the ‘Office could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of States Parties resolve the legal issue relevant to an assessment of article 12.’  The 2013 report quoted by Ambos is a communication of the office’s activities that clearly carries less weight than an official decision. It is not meant to have dispositive value but is merely part of the OTP’s regular reporting duties: “In order to promote transparency of the preliminary examination process the Office aims to issue regular reports on its activities and provides reasoned responses for its decisions either to proceed or not proceed with investigations” (par. 13).

As pointed out elsewhere, there are well-grounded reasons to believe that the Prosecutor’s 2012 decision was wrong.   Read the rest of this entry…

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Crimea after Cyprus v. Turkey: Just Satisfaction for Unlawful Annexation?

Published on May 19, 2014        Author: 

On 13 March 2014 Ukraine lodged an inter-state application under Article 33 of the European Convention against the Russian Federation. Philip Leach has addressed in this forum the likely implications, suggesting that the occupation of Crimea will present a situation for the European Court similar to that in Ilaşcu v. Moldova and Russia.

The other decided case of the European Court that writers are speculating may be relevant to Ukraine is Cyprus v. Turkey. The Court’s just satisfaction judgment in Cyprus v. Turkey, adopted on 12 May 2014, is the first ever to award just satisfaction in an inter-State case under the Convention. Judge Pinto de Albuquerque and Judge Vučinić declared the judgment “the most important contribution to peace in Europe in the history of the European Court of Human Rights.”

What is important about Cyprus v. Turkey? And how, if at all, might Ukraine use the just satisfaction judgment to advance its own application against Russia?

Read the rest of this entry…

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Palestine, UN Non-Member Observer Status and ICC Jurisdiction

Published on May 6, 2014        Author: 

ICCOn 22 January 2009, the Palestinian Minister of Justice, on behalf of the Palestinian National Authority (PNA), lodged a declaration recognizing the jurisdiction of the International Criminal Court (ICC) (pictured left) ‘for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.’ On 3 April 2012, the ICC Office of the Prosecutor concluded that the preconditions to the exercise of jurisdictionwere not met, arguing that Palestine had only been granted ‘observer’, not ‘Non-member State’ status by General Assembly (GA). The Prosecutor considered that the Declaration ‘was not validly lodged’ (Report on Preliminary Examinations Activities 2013, para. 236). However, the Prosecutor also said that ‘allegations of crimes committed in Palestine’ could be considered ‘in the future’ if the ‘competent organs of United Nations … resolve the legal issue relevant to an assessment of article 12 …’. On 29 November 2012 the UN GA – by 138 votes to 9, with 41 abstentions – decided ‘to accord to Palestine non-member observer State status.’ (GA Res. 67/19 of 4 Dec. 2012, para. 2) (see previous EJIL:Talk! Posts here, here and here)

With this decision, the legal issue raised in the Prosecutor’s decision has been resolved. Palestine has been ‘upgraded’ from a mere ‘observer’ to a ‘Non-member State’. The formal declaration of statehood, which some previously considered a missing precondition to Palestine’s status as a State (Ronen, JICJ 8(2010), 26; Shany, JICJ 8 (2010), 337), has been produced by the GA. And this notwithstanding the possible lack of complete fulfilment of the Montevideo criteria (in particular the effective government criterion; cf. Shaw, JICJ 9 (2011), 307 ff.). The view that Palestine is now a State is not only the prevailing view among scholars (Zimmermann, JICJ 11(2013), 303; Ronen, JICJ 12 (2014) 8; contra still Kontorovich, JICJ 11 (2013), 979), but above all has been confirmed by treaty practice since the GA Resolution, i.e., the accession of Palestine to at least 15 international treaties (accepted by the respective depositaries). This means that Palestine, represented by its government, can now not only trigger ICC jurisdiction by way of a declaration under Article 12(3) of the ICC Statute but also directly accede to the ICC Statute (albeit without retroactive effect, cf. Articles 11(2), 126(2)). While there is no longer a need to overcome the lack of statehood by way of a functional interpretation of Article 12(3) (Shany, JICJ 8 (2010), 329; Pellet, JICJ 8(2010), 981, the new Article 12(3) power suffers from several limitations. Those limitations will be the focus of this post (leaving aside the subsequent ‘ordinary’ obstacles, especially gravity, admissibility and interests of justice, to turn an ICC situation into a formal investigation of a case). Here are the four problems with Article 12(3) that I see.

First, Article 12(3) is premised on a delegation-based theory of jurisdiction (Shany, JICJ 8(2010), 331-2), i.e., the ‘State’ within the meaning of the provision delegates a part of its jurisdiction to the ICC. Of course, this presupposes that the State possesses the jurisdiction it wants to delegate in the first place. Here Annex II of the 1995 Israeli-Palestinian Interim Agreement (‘Oslo II’) comes into play. According to its Article I, the Palestinian criminal jurisdiction is limited to ‘offenses committed by Palestinians and/or non-Israelis in the Territory’. ‘Territory’ refers to the West Bank and the Gaza Strip, in principle including East Jerusalem. Indeed, this is the Palestinian territory internationally recognized as a ‘single territorial unit’ (Art. IV Declaration of Principles 1993 [Oslo I]; Art  XI(1) Oslo II). Of course, on the one hand, Palestinian jurisdiction does not extend to the Area C in the West Bank (including Israeli settlements and military installations). On the other hand, while Israel does not, in principle, claim sovereignty over the West Bank and Gaza, it does so with regard to East Jerusalem. Thus, on the basis of Oslo, Palestinian criminal jurisdiction is severely limited both ratione personae and ratione loci.

To get around these limitations one may argue that Oslo, having been agreed between Israel and the PLO, as the representative of the Palestinian people (GA Res. 67/19, para. 2), can neither bind the PNA, which only came into existence with Oslo, nor, a fortiori, the government of the now formally recognized State of Palestine. Read the rest of this entry…

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Crimea: Does “The West“ Now Pay the Price for Kosovo?

Published on April 22, 2014        Author: 

There is a lingering sentiment on this blog (see the posts by Nico Krisch and Christian Marxsen) that “the Kosovo issue” has facilitated the blatant violations of international law recently committed by Russia with regard to Crimea (notably the unlawful annexation of that territory), and that “the West’s” behaviour in the Kosovo context now prevents clear condemnations and robust reactions towards these violations. That view has also been espoused elsewhere (see, e.g., Marcelo Kohen, “L’ Ukraine et le respect du droit international”, Le Temps, 13 March 2014 and Bruno Simma, “The West is hypocritical” (interview), Der Spiegel, 7 April 2014). The basic idea is that “the West” now pays the price for Kosovo, and that such a situation was predictable (and has been predicted) by those who now deplore it, and allows them to think (or even to say): “Well, we warned you from the beginning on, and this is now what comes out of it … so we were right”.

In this post, I would like to investigate the soundness of this position. We first have to ask what is meant by “the Kovoso issue”. Actually “Kosovo” refers to two events: not only to the sponsoring of Kosovo’s independence in 2008, but also to the possible unlawfulness of NATO’s military intervention of 1999. Both events were politically linked, and they concerned three different core norms of international law: the prohibition on the use of force, territorial integrity/inviolability of boundaries, and the self-determination of peoples.

In the Crimea crisis, all three norms are again at stake: Russia both relies on its right or even responsibility to intervene with military means to prevent human rights abuses committed against ethnic Russians and Russian citizens (humanitarian type /R2P-type intervention) and on the Crimean (or even Eastern Ukrainian) right to secession based on the right to self-determination whose exercise in Crimea led to a disruption of Ukrainian territorial integrity.

Did Russia abuse these norms? Read the rest of this entry…

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Recognition of States in International Law: For Sale

Published on April 21, 2014        Author: 

alfonso-portillo-1-sizedNews reports indicate that former Guatemalan president Alfonso Portillo (pictured left) recently pleaded guilty in federal court in New York to accepting $2.5 million in bribes from Taiwanese officials in exchange for assurances of continued diplomatic recognition during his tenure in office (see here, here and here). To what extent is the recognition of a state undermined by charges of corruption? In the context of Taiwan, the recognition of a government, and not a state, was at issue. But as an analytical exercise it is interesting to think through the implications of corruption on the recognition of statehood in international law.

Statehood and recognition are distinct legal concepts, but in practice recognition can be dispositive of whether an entity is a state.  In light of the importance of recognition for the creation and existence of states, the possibility of corruption influencing the recognition process is disconcerting. In the case of Taiwan, “dollar diplomacy” is an established phenomenon, and allegations similar to those raised against Guatemalan president Portillo seem to be surfacing in El Salvador as well. Nor does it seem implausible that other instances of recognition, of and by other states, may have been similarly motivated.

To be clear, the issue discussed here is not recognition based on inducement or incentive to the recognising state, but recognition based on inducement or incentive to key officials in the recognising state. States routinely make binding political and legal decisions based on political and economic, tangible and intangible, inducements and incentives: defence deals, monetary aid, concession agreements and diplomatic manoeuvres just a few examples.

The issue that forms the subject of this post is whether the validity of an act of recognition can be impugned on the grounds that it was induced through the corruption of key government officials? Is it possible for Guatemala, or China to argue that the original act of recognition is invalid by reason of President Portillo’s corruption? This question of possible invalidity has two aspects. First, does the act of recognition bind the recognising state, notwithstanding the fact that it was a result of a mala fide exercise of powers by a key government official? Second, does the act of recognition vest an irrevocable right or status in the recognised state, such that notwithstanding the taint of corruption on the act of recognition, it cannot be invalidated?

The first question deals with the effect of the act of recognition on the recognising state. I would argue that such recognition, even if motivated by the corruption of a particular official, retains its validity. To begin with, it is well established that “the conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions” (Art. 7, ILC’s draft articles on state responsibility). Further, analogies from other areas of international law support this conclusion. In the matter of ‘full powers’ for the conclusion of treaties, the actions of persons who appear to represent the state with the state’s consent bind the state (Art. 7, VCLT). Similarly, the concepts of immunity rationae personae and rationae materiae, in protecting senior government officials from prosecution by other states, assume that the senior officials of a state act in the name of the state and bind the state by their actions.

Conversely, it might perhaps be possible to analogise from the doctrine of ‘odious debt’ that actions taken by corrupt government leaders in the recognising state, in their own interest, against the interest of the people they represent, when the recognised state knows that the actions benefit the officials and not the recognising state, should not bind the recognising state. There are two problems with this argument: first, it is unclear whether the odious debt doctrine applies outside of government debts, strictly construed; second, in relation to the recognition of states, it would be rather onerous to prove damage to the interests of the people of the recognising state and knowledge by the recognised state of this damage.

Therefore, the recognising state probably cannot seek to void its recognition because it was induced by individual corruption. To be clear, Guatemala is not restrained from separately revoking its recognition of Taiwan; it is, however, constrained from arguing that its original recognition was invalidated by the corruption of President Portillo. This is a narrow distinction in theory, but a broad distinction in practice. For instance, the difference between revocation and invalidation will have an effect on the scope of involvement of third states. If the validity of the original act of recognition is capable of being impugned, it may be possible for third states (for instance, China in this case) to challenge the recognition. But if the original act of recognition can only be revoked and not challenged, then it is only Guatemala that can revoke the recognition.

The second question deals with the effects of the recognition on the recognised state. Is it possible for the recognised state to argue that the act of recognition vests an irrevocable right or status? At least two possible arguments to this effect come to mind.

First, it could be argued that such a revocation amounts to denial of self-determination, but this argument is not persuasive. The right to self-determination does not include an unqualified right to independent statehood. Moreover, the impact of a singular instance of revocation of recognition on the self-determination of a recognised state would probably be difficult to determine, and would require an analysis of how many states have recognised the state, what the effect of a single revocation would be, whether that revocation would produce a knock-on effect, and so on. A second, more plausible, argument focuses on the violation of sovereign equality. Once an entity meets the criteria of statehood, and is recognised as such, the ability of individual states, or the international community, to revoke recognition and statehood would infringe the fundamental right of sovereign equality. International law does provide for such ability in limited circumstances, for instance through directives of the UNSC, but those circumstances are very limited, and restricted to situations involving threats to international peace and security.

Neither of these arguments is ultimately persuasive. The recognition of states in international law is a political act; there is no duty in international law to recognise a state, nor a right to be recognised. Similarly, the revocation of recognition is a political act. However, if these two arguments, or other similar arguments, were to be accepted, they would have the effect of preventing the revocation of recognition of statehood. And that is contrary to the accepted position in international law.

In conclusion then, an act of recognition of statehood induced by the personal corruption of individuals in the recognising state is valid in international law. But it is difficult for the recognised state to argue that the recognition is permanently irrevocable, and it is possible tor the recognising state to separately revoke its recognition.

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