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Home States and Statehood Archive for category "Government"

Post-Election Crisis in The Gambia, the Security Council and the Threat of the Use of Force

Published on February 17, 2017        Author: 

The Gambian post-election crisis is a gem amongst cases relevant to the law on ius ad bellum – not only because it is a crisis that has been resolved with almost no bloodshed, but also because it offers valuable insights into the interaction between Security Council authorization, the doctrine of intervention by invitation, and the prohibition on the threat to use of force (see for some analysis here, here, here, or here).

Professor Hallo de Wolf has concluded that “the legality of the ECOWAS’ military intervention is dubious”. His analysis primarily focuses on the question of legality of the ECOWAS’ intervention after the inauguration of The Gambia’s new president, Adama Barrow. However, his conclusion may be challenged if one is to read Security Council resolution 2337 (2017) as a non-prohibitive non-authorization, which indirectly opens and strengthens the alternative avenue of the doctrine of intervention by invitation . Elsewhere, I have evaluated this interpretation against State practice and the Council’s resolutions in the Syrian and Yemeni incidents and concluded that the consent of the new president, Barrow, may suffice to justify the military intervention in The Gambia.

If one is ready to follow this line of thought, a question arises as to the effect of the consent; what conduct is justified by the invitation? The post-election crisis in The Gambia, for which the course of events may be recalled here or here, entails temporal complications in this respect. The crisis can be divided in three phases: (1) pre- inauguration (Jammeh’s clinging to power up until the inauguration, and end of the ECOWAS’ ultimatum, 19 January 2017); (2) the time between passage of the ultimatum and official inauguration; (3) post- inauguration. Read the rest of this entry…

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The Use of Force to (Re-)Establish Democracies: Lessons from The Gambia

Published on February 16, 2017        Author: 

It has been almost a month since predominantly Senegalese troops entered The Gambia as part of an ECOWAS intervention after long-term president Yahya Jammeh had refused to accept the results of the December 2016 elections. ECOWAS troops remain in the country until this day in order to support newly-elected president, Adama Barrow, in establishing and maintaining public order.

The case has been widely discussed as it raises a number of questions concerning the use of force in general, the right to intervention by invitation and authorizations by regional organizations (see here, here, or here). In particular, it shows that, if the circumstances admit it, the international community is more than willing to accept the use of force to establish or re-establish democracies. The following post will focus on this debate and briefly describe how it evolved until this very day. Read the rest of this entry…

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Editorial: The Case for a Kinder, Gentler Brexit

Published on February 6, 2017        Author: 

Of course, we know better than to be shooting at each other; but the post-23 June  relationship between the United Kingdom and the European Union is woefully bellicose, and increasingly so. In tone and mood, diplomatic niceties are barely maintained and in content positions seem to be hardening. I am mostly concerned with attitudes and positions of and within the Union and its 27 remaining Member States. Handling Brexit cannot be dissociated from the handling of the broader challenges facing the Union. I will readily accept that the UK leadership bears considerable responsibility for the bellicosity and the escalating lawfare. But the inequality of arms so strikingly favours the Union that its attitude and policies can afford a certain magnanimous disregard of ongoing British provocations.

It is easy to understand European Union frustration with the UK. I want to list three – the first being an understandable human reaction. It is clear that when Cameron called for a renegotiation followed by a referendum he had no clue what it was he wanted and needed to renegotiate. The Union waited patiently for months to receive his list – the insignificance of which, when it did come, was breathtaking. For ‘this’ one was willing to risk breaking up the Union and perhaps the UK? Read the rest of this entry…

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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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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
 

Oxford University Press Debate Map on Ukraine

Published on March 14, 2014        Author: 

Over the past couple weeks, there has been a flurry of writing on this blog  (see here, here, here and here) and elsewhere about events in Crimea/Ukraine. Oxford University Press have produced another of their ever so useful Debate Maps on Ukraine.

“The  . . . index maps scholarly commentary on the legal arguments regarding the public international law (and some domestic constitutional law) aspects of the use of force in Ukraine, published in English language legal blogs and newspapers, and free content from OUP’s online services.

Use this map to review scholarly arguments and to keep track of which issues have been covered and who has said what.”

I could not recommend this Debate Map, and the other OUP maps (here, here, here),  more highly. There is so much writing on topical international law issues that it can be difficult to stay abreast of what has been written, particularly over a short space of time. The Debate Map is an excellent way of doing so.

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Intervention with the Consent of a Deposed (but Legitimate) Government? Playing the Sierra Leone card.

Published on March 6, 2014        Author: 

The most dramatic moment at Monday’s Security Council meeting on Ukraine came when the Russian representative, Vitaly Churkin, produced a letter, purportedly from ousted Ukrainian President Victor Yanukovych, inviting Russian military intervention. This seemed to indicate a shift in Russia’s legal justification for its actions in Ukraine. The resolution adopted by the Russian legislature authorizing the use of force referred to the alleged threat to the personnel stationed at the existing Russian bases in Ukraine, while at the previous Security Council meeting on 1 March, Mr Churkin appealed primarily to a request from government of Crimea. It appears that Russia has now decided to rely much more heavily on Yanukovych’s consent. Not only did Mr Churkin emphasise it at the Security Council; President Putin, in his press conference on Tuesday, laid great stress on it:

“[W]e have a direct appeal from the incumbent and, as I said, legitimate President of Ukraine, Mr Yanukovych, asking us to use the Armed Forces to protect the lives, freedom and health of the citizens of Ukraine.”

This shift, which has already attracted some attention in the international law blogosphere, is an understandable move. For the reasons explained by Daniel Wisehart in his post on Tuesday, both self-defence and the invitation of the Crimean government are patently inadequate as legal justifications for Russia’s use of force. There is no evidence of an armed attack on the Russian bases in the Crimea, nor can it be seriously maintained that the consent of the government of a sub‑national unit within a State can legalise military intervention, especially when the intervention is opposed by the federal government.

In contrast, it is much easier for Russia to use Yanukovych’s consent to muddy the waters. For it has been argued, with at least some plausibility, that the international community has accepted the legality of foreign military intervention in support of a ‘legitimate’ national government, despite the fact that it has lost effective control of the state. The use of force by ECOWAS in Liberia in 1990, and in Sierra Leone in 1997, could be given as examples. In Liberia, the incumbent President, Samuel Doe, dispatched a letter to ECOWAS requesting assistance at a time when his forces controlled only a small part of the capital city, Monrovia. And in Sierra Leone, after being overthrown by a military coup, the democratically elected President Ahmad Tejan Kabbah had already fled the country (just as Yanukovych has done) before he requested ECOWAS assistance to restore him to power. Despite these facts, in both cases military action met with support rather than censure from the international community. Read the rest of this entry…

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Filed under: Government, Use of Force
 
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Palestine, Statehood and the Challenges of Representation

Published on December 19, 2011        Author: 

Guy Goodwin-Gill is a Senior Research Fellow at All Souls College, Oxford and Professor of International Refugee Law, University of Oxford. Previously, he was Professor of Asylum Law at the University of Amsterdam and Legal Adviser in the Office of United Nations High Commissioner for Refugees from 1976-1988. He practises as a Barrister from Blackstone Chambers, London.[i]

The bid by Palestine for full UN membership in September last has generated controversy, discussion, reflection, and doubt, all now helped along by UNESCO’s recent decision to admit Palestine as a State of full capacity.

The questions arising here, of course, are not just sterile, academic ones about the incidents and criteria of statehood. Rather, we are at an intensely political moment, and what we are seeing is deep-seated frustration on the part, not only of Palestinians, but also once again, of substantial numbers of the world community who see justice for the people of Palestine endlessly obstructed by the intransigence of the Israeli Government.

In this highly contested context, and from a limited international law perspective, Palestinian ‘statehood’ can only seem indeterminate and uncertain, considered against traditional, Montevideo Convention criteria – a fluctuating and hitherto uncounted population, borders at the mercy of realignment by superior force, daily restrictions on the capacity to govern itself. And yet, as many have said, the conception of the Palestinian State may still have its uses, and offer the potential for Palestinians to put their complaints, their disputes, their rights and their claims on a higher plane, and to access more directly a variety of international mechanisms to assist their cause, bringing about or bringing closer that goal of a State in international law, a national home for the people of Palestine which has been the stated aim of the international community for over sixty years.

 Today, however, I do not want to look so much at the issue of Palestinian statehood, but rather at that the ‘Ur-question’ – the question behind the question, the question that we can and should ask of every State, actual and potential. And that question is about who represents the State in its relations with other States, and by what right or claim, and about whether this is a matter of international legal concern.

Read the rest of this entry…

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The Birth of Israel and Palestine – The Ifs of History, Then and Now

Published on September 26, 2011        Author: 

Given the promised September UN move by the Palestinian Authority it is of interest to recall some of the circumstances surrounding the birth of Israel. There are some interesting historical parallels and some differences. In public opinion and Hollywood movies, Israel was born with a UN midwife: UNGA Resolution 181, the famous Partition Resolution of 29 November 1947

The Resolution called for, inter alia, the creation of two states, the internationalization of Jerusalem and … wait for it … an economic Union within the whole territory! ‘De Facto Solidarity’ was not, apparently, invented with the Schuman Declaration.

Arab states spoke forcefully against the Resolution and, obviously, voted against it en bloc.  Not only did they not recognize Israel in the sense of declining diplomatic relations – they argued the very illegitimacy of Israel as a state. In furtherance of this position, in the lawfare (only the term is new, not the praxis) that immediately erupted, Arab scholars spent much ink on dismissing any legal significance to that Resolution – essentially arguing the general non-binding nature of General Assembly resolutions. (You don’t see that argument about UNGA Resolution 181 being made too often today by the Arab protagonists in the ongoing lawfare.)

Many Israeli scholars readily conceded the point. Indeed, they argued, it was not within the power of the General Assembly as such legally to sanction the creation of a new state, though, of course, the Resolution was politically very important. Israelcame into being, it was argued, when it declared independence on 15 May 1948 upon termination of the British Mandate over Palestine. The birth of the new state under international law was the result, it was claimed, of the widespread and representative recognition of it by the states of the world community. On this reading, Israel came into being not on the morrow of the November 1947 Partition Resolution, but in May 1948. Read the rest of this entry…

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Can Libya Sue the UK on Recognition of the National Transitional Council?

Published on July 30, 2011        Author: 

Earlier this week, the UK Foreign Secretary, William Hague announced that the UK now recognises the Libyan National Transitional Council (the rebels fighting Colonel Gaddafi’s forces) as the sole governmental authority in Libya. This was an implementation of the decision reached in the context of the Libya Contact Group meeting which I spoke about last week (see here). As part of the UK’s decision, the UK has expelled those Libyan diplomats in the UK appointed by Gaddafi and has invited the Libyan NTC to appoint a new diplomatic envoy to the UK. As indicated in my previous post, one of the consequences of the recognition decision (and perhaps one of the drivers of the decision) is that the UK is willing to release some Libyan assets in the UK for use by the NTC. In particular, the UK is unfreezing £91 million belonging to a Libyan oil company which is controlled by the NTC. However, the vast majority of the Libyan State’s assets in the UK remain frozen.

In response to all of this the Libyan Deputy Foreign Minister (by which I mean the Gaddafi govt’s Deputy Foreign Minister) declared that these moves by the UK are illegal and that Libya will sue the UK in the International Court of Justice and in British domestic courts. Libya has been involved in quite a few cases before the ICJ – recall the maritime delimitation cases with Tunisia and with Malta in the 1980s, the Lockerbie cases against the UK and the US in the 1990s – so it is perhaps no surprise to hear that they are considering another suit at the ICJ. But are there jurisdictional grounds for such a suit and what exactly might such a claim involve? Read the rest of this entry…

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