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Remote-Controlled Killing in Dallas

Published on July 19, 2016        Author: 

On 8 July 2016, most likely for the first time in history, Dallas, Texas police used a remotely piloted land vehicle — a type of drone — to bomb a criminal suspect to death. When asked whether the bombing was justified, a former Los Angeles police captain said yes: “This was not a conventional police operation. This was more of a war zone type operation”.

That Dallas could be a war zone for purposes of killing a criminal suspect and that police would use a bomb to do so are new examples of a continuing post-9/11 phenomenon. It is another case indicating the spreading, negative influence of legal arguments developed to weaken the restraints on the use of force. Other examples have been discussed here recently, including legal reasoning to justify the 2003 Iraq invasion and the abusive claims to self-defense in response to terrorism. This post will focus on the artificial war zone and the militarization of police practices.

“War Zones” Beyond War Zones

Just one week before the Dallas bombing, the U.S. Director of National Intelligence (DNI) released drone death statistics from killings “outside zones of active hostilities.” For years the Obama administration has argued for a broader understanding of what constitutes a battlefield, along with attenuated readings of the right of self-defense and of the right of a state to consent to the use of military force on its territory. In a speech at Harvard Law School in September 2011, John Brennan, currently the CIA director, said, “The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to ‘hot’ battlefields like Afghanistan.” These efforts were first motivated to provide legal cover for the use of drones in targeted killing beyond the combat zones of Afghanistan and Iraq. (For an overview of the history, law, and ethics of using drones for targeted killing, see my review essay, Game of Drones.) Since then, the concept of a right to kill beyond a zone of active hostilities or hot battlefields has taken on a life of its own. It has morphed into the thinking and justifications behind killing with means other than drones, against targets other than Al-Qaida members, and by operators other than U.S. military and intelligence personnel, such as the Dallas police and Chinese law enforcement. Read the rest of this entry…

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Announcements: CfP for EJIL Symposium – International Commissions of Inquiry; Free BIICL Event – Obligations of States in Undelimited Maritime Areas

Published on July 17, 2016        Author: 

Call for Papers for a Symposium for the European Journal of International Law: International Commissions of Inquiry: What Difference Do They Make? The proliferation of inquiry bodies in international affairs is a marked phenomenon of the post-Cold War period. Scholarly attention has largely focused on the procedures and methodologies adopted by such bodies, in addition to their findings of fact and conclusions of law. Comparatively little systematic attention has been devoted to the impact of international commissions of inquiry on the specific disputes, incidents or situations that they are created to address. This symposium sets out to consider what difference various commissions of inquiry have made on the circumstances that provided the impetus for their creation. For the full call for papers, see here.

BIICL Event on ‘Obligations of States in Undelimited Maritime Areas’.  On Friday 22 July, the British Institute of International and Comparative Law (BIICL) will hold a free to attend event titled: ‘Obligations of States in Undelimited Maritime Areas’. Consisting of two panels featuring experts in Law of the Sea and members of the BIICL research project on the obligations of States in undelimited maritime areas, this event will analyse and discuss the obligations of States in regard to undelimited areas pending agreement on maritime boundary delimitation. In particular, the event will focus on the obligations of States under Articles 74(3) and 83(3) of UNCLOS to refrain from activities that could jeopardise or hamper the reaching of a final agreement on maritime delimitation. The event will be of interest to international law practitioners, government officials, offshore oil and gas industry specialists and academics. Copies of the BIICL publication “Report on the Obligations of States under Articles 74(3) and 83(3) of UNCLOS in respect of Undelimited Maritime Areas” will be distributed at the event. For more information, see here  or the event flyer.

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Russia and China Challenge the Western Hegemony in the Interpretation of International Law

Published on July 15, 2016        Author: 

On 25 June 2016, the Presidents of Russia and China adopted a common Declaration on the Promotion of International Law in Beijing. The Declaration has already been subject to insightful commentary in the Western blogosphere, for example by Ingrid Wuerth.

The context of the Declaration is that both Russia and China have recently faced criticism for their attitudes towards, and even violations of, international law. In March 2014, the majority of states in the UN General Assembly considered Russia’s annexation of Ukraine’s Crimean Peninsula illegal under international law. On 12 July 2016, about two weeks after the Russian-Chinese Declaration was adopted, the Permanent Court of Arbitration in a case initiated by the Philippines, de facto rejected most of Chinese territorial claims in the South China Sea.

In this sense, the Russian-Chinese Declaration represents a defensive political document in which the signatory states reject Western suggestions that the two UN SC permanent members have a somewhat problematic relationship with international law. Within the Declaration, Russia and China offer their own interpretation of what the big picture of international law is – an interpretation according to which it is the West, especially the US, that emerges as an actor displaying a problematic record and attitude. It is important that the two powers have now officially come together to put forward a common interpretation on the big picture of international law. At least in Russia, strategic criticism of the Western approach to international law has been prominent in strategic documents for the last ten or so years.

One has to keep in mind that the discourse on international law within Russia and China differs considerably from the way it is typically understood and constructed in the West. However, the realization of this fact is not necessarily too deep in the West where at least academic discourse on international law is usually carried out as an intra-Western affair i.e. Western experts debating with other Western experts. Outside the West, international law is often portrayed as an hegemonic tool of the West. For example, in April 2016, the Director of the Investigative Committee of the Prosecutor General’s Office of the Russian Federation and a leading practitioner in international law matters in Russia, Alexander Bastrykin, made a statement according to which, international law has for a while been used as an element of Western hybrid warfare against Russia. Read the rest of this entry…

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A Plea Against the Abusive Invocation of Self-Defence as a Response to Terrorism

Published on July 14, 2016        Author: 

The use of force in self-defence against terrorist groups is one of the most controversial issues in the field of jus contra bellum today. Particularly since 9/11, several States have supported a broad reading of the right to use force in self-defence, as allowing them to intervene militarily against terrorists whenever and wherever they may be. A consequence of that conception is that any State could be targeted irrespective of whether that State has ‘sent’ the irregular (in this case terrorist) group to carry out a military action or has been ‘substantially involved’ in such an action, to use the terms of Article 3g) of the Definition of Aggression (annexed to GA Res 3314 (XXIX)) considered by the ICJ as reflecting customary international law. However, an even more substantial number of States do not seem to subscribe to this broad reading of the right to self-defence. The Non-Aligned Movement, for example, representing some 120 States, has regularly expressed its clear reluctance to adhere to this view. Thus, in February 2016, in an open debate before the UN Security Council on ‘Respect for the principles and purposes of the Charter of the United Nations as a key element for the maintenance of international peace and security’, the Non-Aligned Movement reaffirmed that ‘consistent with the practice of the UN and international law, as pronounced by the ICJ, Article 51 of the UN Charter is restrictive and should not be re-written or re-interpreted’ (S/PV.7621, 15 February 2016, at 34).

But what about international lawyers? The reaction on their part has been equivocal. Some have supported a broad interpretation of Article 51 of the UN Charter, focusing on the possibility to invoke self-defence against terrorists. Others argue in favour of a more ‘restrictive’ and classical reading of the Charter. Following this second line of reasoning, a plea against the abusive invocation of self-defence as a response to terrorism has been drafted by a group of scholars (available here). The aim of this post is to (i) explain in what context and how this plea was conceived, and (ii) briefly describe its main characteristics. Read the rest of this entry…

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A Rejoinder to John Bellinger on the Chilcot Report

Published on July 13, 2016        Author: 

Over on Lawfare, John Bellinger has an interesting post on the Iraq Inquiry which is well worth a read, responding partly to Oona Hathaway’s recent post on Just Security. However, there are a couple of points in Bellinger’s post that I think are highly problematic and would like to address here.

First of all, Bellinger notes that the Inquiry did not expressly criticize the UK (and the US) legal argument for intervening in Iraq, and draws from that the following conclusion:

Even if the Chilcot committee did not want to substitute its own legal conclusions for Goldsmith’s, if the Goldsmith view is as “widely repudiated” as Oona believes, surely the committee (which had former ICJ President Rosalyn Higgins as its legal adviser) would have noted this fact and provided the counter-arguments.  That the committee does not criticize the substance of Goldsmith’s legal conclusions tends to indicate that the committee did not find them “manifestly implausible.”

I don’t think this inference is correct, i.e. that from Chilcot’s silence we can infer anything about the commissioners’ views on the legality of the war. Chilcot expressly said that the legality of the war was outside the Inquiry’s mandate. This would include any judgments about the plausibility (as opposed to correctness) of any particular argument. And he moreover noted that the war was not one of last resort AND that in the Inquiry’s view the UK (and implicitly the US) undermined the authority of the Security Council.  Since the UK/US argument was based on implied Security Council authorization, the Inquiry’s finding is if anything directly contrary to the overall thrust of that argument, at the very least politically so.

Second, Bellinger notes (correctly) that, as a matter of principle, the 678/687 revival argument was not new, i.e. it was used before to justify several bombing campaigns in Iraq. But that the revival argument was not new has little bearing on whether it is plausible or correct, the political optics aside. It was always highly controversial, and received a lot of criticism in the legal literature even when it was used on a vastly smaller scale than the full invasion and regime change of 2003.

Nor does the fact that the government lawyers of five states (US, UK, Australia, Poland, Spain) endorsed that argument inherently make it plausible. I suppose a lot depends on the exact criterion by which we judge plausibility. I am reminded in that regard of a panel discussion on the Ukraine crisis that I chaired at last year’s ESIL conference in Oslo. There were a couple of hundred people in the room, and at one point I asked for a show of hands on how many of the international lawyers in that room thought that that Russia’s intervention in Ukraine was lawful – only one person did so. I then asked the same question about the US intervention in Iraq, and again only one person did so (it was not the same guy!). That is obviously just an unscientific data point, but it still aligns with my anecdotal impression that 99% of international lawyers outside the US (and even there the percentage is not much smaller) think that the Iraq war violated the UN Charter. That (some of) the government lawyers of five states thought otherwise doesn’t change much, I think, about the judgment that the profession as a whole has passed on the Iraq war, which I admit is also inevitably influenced by the unmitigated disaster it eventually turned out to be.

Thirdly, and most importantly, I think Bellinger doesn’t take into account that even among these five states there were significant differences in how they actually approached the revival argument. In particular, even the UK, the US closest ally, per the advice of Lord Goldsmith, considered that the US version of the revival argument was legally wrong. Just as a reminder, under both versions of the revival argument the authority to use force under SC res 678 was suspended but not extinguished by 687, and could be revived by a material breach of the conditions imposed on Iraq by 678 and subsequent resolutions. However, under the US version of this argument it was for individual states (i.e. the United States, i.e. President George W. Bush) to decide whether Iraq was in material breach, but under the UK version that judgment had to be made collectively, by the Security Council. This is why, under its legal view, the US had no need of resolution 1441, but on the UK view that resolution was indispensable, i.e. without it the 678 authority could not be revived.  This is also why, in his 7 March formal legal advice , at para. 9, Lord Goldsmith noted that he ‘was not aware of any other state which supports [the US] view.’

Finally, this is also why, as Dapo and I argued in our submission to the Iraq Inquiry, which was joined by many other scholars, Lord Goldsmith’s last-hour change of heart about the interpretation of 1441 could not be justified by discussions with US interlocutors and by reference to US ‘red lines’ that US negotiators could not possibly have conceded, since the US red lines were predicated upon the US version of the revival argument and not the UK one. In other words, the US may well have succeeded in upholding its red lines, but this would not automatically have meant that the UK succeeded in getting from 1441 what it needed to get to invade Iraq. (Notwithstanding the point of principle Richard Gardiner and Michael Wood have made before on whether UNSC resolutions can be interpreted by reference to what some of the negotiators privately thought they had or had not achieved).

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Philippines v China: first thoughts on the Award in the South China Seas Case

Published on July 12, 2016        Author: 

Any international lawyer looking at a news site in the last few hours will have seen that the final award has been handed down at the Permanent Court of Arbitration in the Philippines v China dispute brought under the UN Convention on the Law Sea Annex VII procedure. The arbitral tribunal’s decision is simply historic. While Philippines has lost on a number of smaller points, the scale of its win overall is much greater than most commentators were expecting.

What follows is a very preliminary comment – and I stress that faced with a 500 page decision I may well revise my views later. It is also more in the nature of an explainer than a deep dive on any of the many legal questions already highlighted below. (This is also an excessively long post, for which I apologise.) However, on a first, quite brief, examination the tribunal has attempted to be meticulously fair to China and has applied the UN Convention on the Law of the Sea strictly and thoroughly. It has delivered a result which was, by and large, predictable.

James Kraska of the US Naval College has summarised the key holdings as:

  • the nine dash line has no basis in law,
  • there are no islands in the disputed area within the meaning of Article 123, UNCLOS,
  • China has interfered in the Philippines’ EEZ; and
  • China’s actions have aggravated the dispute.

I would add to this list three matters. First, the Tribunal has concluded that Mischief Reef is a low tide elevation over which no State can claim sovereignty or possession. This means it is simply a maritime feature within the Philippines exclusive economic zone (EEZ). Chinese island-building activities there are thus not merely without legal effect but are in violation of the sovereign rights of the Philippines.

Second, it has found that China has breached various obligations under UNCLOS regarding the protection and preservation of the marine environment by having caused severe and irreparable harm to coral reef ecosystems in its construction of artificial islands in the South China Seas.

Third, international tribunals normally bend over backwards to avoid findings of bad faith against a state. That is, one cannot act in bad faith without violating some other substantive right. So most tribunals consider it sufficient to stop at determining that a right or duty has been violated. This tribunal has found China violated Article 300 of UNCLOS: the duty to act in good faith. This is an extraordinary rebuke and a clear indication that the law of the sea dispute resolution system will not be cowed by the posturing of the superpower. As a matter of principle, it takes a principled stand on the supremacy of the rule of law. As a matter of pragmatism, it flies in the face of the conventional wisdom that angering China over this dispute could jeopardise the stability of the law of the sea system.
Read the rest of this entry…

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The Philippines v. China Arbitral Award on the Merits as a Subsidiary Source of International Law

Published on July 12, 2016        Author: 

“Great Game” politics in the Asia-Pacific has just changed irrevocably, especially for all parties, claimants, and affected constituencies in the South China Sea, after the Annex VII UNCLOS arbitral tribunal released its 12 July 2016 Award in Republic of the Philippines v. People’s Republic of China (Permanent Court of Arbitration Case No. 2013-19).  While we will be featuring posts over the coming days on this award that dissect and analyze the award, its international legal significance, and its larger geopolitical consequences for all claimants to the South China Sea dispute and third-party actors (such as the United States), for now, a close read of all 479 pages of this arbitral award reveals it to be an extremely rich and fertile piece of international jurisprudence, one that will certainly have far-ranging doctrinal impacts as an international judicial decision that is also an authoritative subsidiary means for determination of the international law rules under UNCLOS, especially on questions such as the:
1) normative weight of “historic rights” and differentiating the same from “historic title” and “historic rights short of sovereignty”, and clarifying what could still possibly amount to historic rights that States could still validly assert within the UNCLOS treaty regime;

2) authoritative criteria for determining the existence of low-tide elevations (LTEs), noting that the legal consequences of which were not completely settled in the International Court of Justice’s judgment in Qatar v. Bahrain;

3) objective criteria for the authoritative interpretation of Article 121 UNCLOS;

4) objective and subjective criteria for testing the lawfulness and unlawfulness of a coastal State’s asserted ‘enforcement’ activities; and the

5) objective or scientific factors that could be taken into account to determine the existence of actionable environmental damage to the marine environment under Articles 192 and 194 UNCLOS.

Interestingly, the arbitral tribunal did not assume jurisdiction in this case over the interpretation of “military activities” within the meaning of Article 298 of UNCLOS, which the Philippines had asserted in regard to various military and paramilitary incidents with China over Second Thomas Shoal. It would be interesting to see, in the coming days, how the United States reacts to this development, since it has frequently insisted on the prerogative of the coastal State to make the authoritative determination of what “military activities” could be justifiably excluded from compulsory dispute settlement under UNCLOS Article 298(1)(b).

The evidentiary rules and fact-finding procedures of this tribunal will also, I suspect, also provoke considerable commentary, if not critique, since the tribunal drew heavily from numerous statements, published views, and opinions that were attributed to the respondent in this case. One can also expect questions to be raised on why the respondent never chose to participate in the proceedings if only to challenge jurisdiction, to contest the veracity or authoritativeness of the Philippines’ technical, environmental, hydrographical, and other expert submissions under protest, or to otherwise set its own narrative, instead of permitting China’s narrative to be formed from the tribunal’s reconstruction of innumerable media statements and statements of officials.

Clearly, this award has greater consequences beyond China’s repeated refusal to recognize it (at least for now). As a subsidiary means for determining international law, it is conceivably difficult for any of the claimants – the Philippines included – to ignore the legal effect of this ruling and its impact on all future steps to be undertaken in the actual maritime boundary delimitation negotiations. The ruling will likely affect the landscape of interpretation for the 2002 Declaration on the Conduct of Parties to the South China Sea, and the ongoing work agenda of the ASEAN-China Working Group on the Code of Conduct for the Parties to the South China Sea. Whatever the stated preferences may be of China or the new Duterte administration in the Philippines, and regardless of objections to the veracity of factual findings of the tribunal, the very existence of the Philippines v. China arbitration award as a subsidiary means for determining the rules of international law arguably changes the very scope and interpretation of actual applicable law to be considered by parties to this dispute.

We look forward to featuring a broad spectrum of views from various international lawyers and scholars on this landmark arbitral award, as we track contemporaneous developments in the Asia-Pacific region, and invite further discussion especially on next steps ahead for the actual disputes between the claimants on maritime boundary delimitation. Read the rest of this entry…

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Announcements: James Brown Scott Prize; Revista Tribuna Internacional; CfP Jus Post Bellum and the Justice of Peace

Published on July 9, 2016        Author: 

1. Institut de droit international James Brown Scott Prize. This competition, endowing an award of 10’000 Swiss francs, is organized under the auspices of the Institute of International Law as established by the late J.B. Scott. The Prize bears the name of thirteen distinguished international lawyers on a rotating basis, and on this occasion is the John Westlake Prize. The subject of this competition is ‘Dispute Settlement Before International Courts and Tribunals’. Papers related to this subject can be submitted in German, English, Spanish French, or Italian and should comply with all other requirements as specified in the Regulations of the Prize, which can be consulted in the Yearbook of the Institute of International Law, Vol. 61-II, 1986, p. 359-367 and on the website of the Institute of International Law. The papers have to be submitted to the Secretary-General of the Institute by 31 December 2016 to the following address: Professor Marcelo Kohen IHEID, Chemin Eugène Rigot 2 Case postale 136 CH-1211 Geneva 21. The Prize will be awarded during the 2017 session of the Institute of International Law.

2. Revista Tribuna Internacional New Issue. Issue N° 9 (1st semester, 2016) of law journal “Revista Tribuna Internacional”, Law Faculty – Univesity of Chile, is now online. It includes academic articles, commentaries of jurisprudence and book reviews of books related to public and private international law and international relations by authors from many different countries. It can be accessed here.  Articles in Spanish and English are accepted. The rules of submission can be read here.

3. Call for Papers: Jus Post Bellum and the Justice of Peace. The Jus Post Bellum Project is seeking submissions of academic research papers for presentation at the final project conference on  ‘Jus Post Bellum and the Justice of Peace’ on 29-30 September 2016 in The Hague. In the Conference, we will explore to what extent international law contains norms and principles of just and sustainable peace in specific areas, such as (i) ending of conflict and conflict termination (cease-fire, peace agreements, constitutional reform),  (ii) security (use of force in peace operations, detention, law enforcement), (iii) protection of public goods (cultural property), (iv) movement of persons (property rights, immigration, refugees), (v) accountability (sequencing of peace and justice, hybrid/international/domestic tribunals),  (vi) rule of law reform (vetting practices, institution building, sequencing), (vii) sovereign debt and economic injustice (land reform, socio-economic rights), and  (viii) reparation and prevention (collective reparations, reconciliation). Submissions should include an abstract of no more than 300 words and be accompanied by a CV. Submissions must be written in English and sent to j.m.iverson {at} law.leidenuniv(.)nl no later than 5 August 2016. Draft papers should be submitted by 15 September 2016.

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UK Iraq Inquiry Report

Published on July 6, 2016        Author: 

In the past couple of hours, the Chilcot inquiry on the Iraq war delivered its long-awaited report, which can be accessed here. It is highly critical of virtually every aspect of UK policy that led to the Iraq war and its unfortunate aftermath – indeed, much more critical than many have expected. When it comes to the legal aspects, the inquiry’s mandate did not include an assessment of the legality of the use of force, but the inquiry nonetheless concluded that “the UK chose to join the invasion of Iraq before the peaceful options for disarmament had been exhausted. Military action at that time was not a last resort” and that:

The judgements about the severity of the threat posed by Iraq’s weapons of mass destruction – WMD – were presented with a certainty that was not justified.

Despite explicit warnings, the consequences of the invasion were underestimated. The planning and preparations for Iraq after Saddam Hussein were wholly inadequate.

The government failed to achieve its stated objectives.

The inquiry also found that:

Mr Blair and Mr Straw blamed France for the “impasse” in the UN and claimed that the UK Government was acting on behalf of the international community “to uphold the authority of the Security Council”.

In the absence of a majority in support of military action, we consider that the UK was, in fact, undermining the Security Council’s authority.

Second, the Inquiry has not expressed a view on whether military action was legal. That could, of course, only be resolved by a properly constituted and internationally recognised Court.

We have, however, concluded that the circumstances in which it was decided that there was a legal basis for UK military action were far from satisfactory.

A 170-page chapter of the report on the provision of legal advice is here; further commentary from Joshua Rozenberg here.

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‘Brexit’, Article 50 TEU and the Constitutional Significance of the UK Referendum

Published on July 6, 2016        Author: 

This post tries to answer two questions:

First, who has the right to trigger the process of Article 50 TEU under the UK constitution? Second, what is constitutional significance of the UK referendum?

Article 50 TEU is the provision that governs the process of withdrawal of an existing EU Member State from the Union. The provision was introduced by the Treaty of Lisbon and it has not been used thus far. This provision is drafted in a way that is not too prescriptive with the clear intention for allowing a considerable margin for manoeuvring in the ensuing negotiations.

Article 50 (1) stipulates that a Member State may decide to withdraw from the Union in accordance with its own constitutional requirements whereas Article 50 (2) provides that the relevant Member State must notify its intention to the European Council.

It is clear that once the process of Article 50 begins, the negotiating position of the Union is strengthened. This is because Article 50 (3) TEU imposes a time frame for the completion of negotiations (two years). If at the end of this period the EU and the Member State fail to reach an agreement, the Treaties cease to apply to that Member State thus leading to a disorderly withdrawal. The two year period may be extended by the European Council acting unanimously. Since the costs of a disorderly withdrawal are apparently higher for the Member State that leaves the Union, it is obvious that the two year time-frame hangs like a sword of Damocles over its shoulders. This means that the question of when the process begins and on whose initiative is critical.

The ‘who’ and ‘when’ under the UK Constitutional Arrangements Regarding the Invocation of Article 50 TEU

The question of who has the power to trigger Article 50 TEU has attracted a deserved amount of attention by scholars and commentators. Most of the scholars agree that EU partners cannot trigger the withdrawal process (see for example Marl Elliott, Sionaidh Douglas-Scott, Nick Barber, Tom Hickman and Jeff King).

This is certainly the case from a legal point of view however, it is possible for the EU to increase the pressure on the UK to trigger the renegotiation process. How? Read the rest of this entry…

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