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Nicaragua v Columbia: the curious question of the Commission on the Limits of the Continental Shelf

Published on December 10, 2012        Author: 

Continental shelf questions have a reputation for being arcane and technical, but an interesting point with implications for offshore resource disputes arose in last month’s ICJ judgement in Territorial and Maritime Dispute (Nicaragua v. Colombia).

First, a certain amount of (potentially dull) technical background needs to be set out, which I’ll simplify as much as possible.

Notably, Nicaragua is a party to the UN Convention on the Law of the Sea (UNCLOS) and Colombia is not. UNCLOS in Article 76(1) states a general principle:

The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to [an automatic] distance of 200 nautical miles from [its] baselines.

This 200 nm or “the outer edge of the continental margin” general definition of the limits of the continental shelf was always likely to be found to be customary international law – and now the ICJ has determined that it is (para 118: correct me if I’ve missed an earlier case). Read the rest of this entry…

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Self Determination and the Syrian Conflict – Recognition of Syrian Opposition as Sole Legitimate Representative of the Syrian People: What Does this Mean and What Implications Does it Have?

Published on December 6, 2012        Author: 

A couple of weeks ago, the United Kingdom recognised the umbrella Syrian opposition organization, National Coalition for Syrian Revolutionary and Opposition Forces (NCS) as the “sole legitimate representative of the Syrian people”. In so doing, the UK was following a number of other States that have also recognised NCS as the legitimate or sole legitimate representative of the Syrian people. It is reported that the US government will accord the same recognition, perhaps next week. In the summer of 2011, many States also recognised the Libyan National  Transitional Council as the “[sole] legitimate representative of the Libyan people” prior to later recognising the Libyan NTC as the government of Libya (see previous EJIL:Talk! Post here and an example here). The question that arises with this recognition is: what does it mean to recognise an entity as the legitimate representative of the Syrian [or Libyan] people? Also, what are the implications of such recognition? Does this type of recognition operate only in the world of international politics, or does it have some legal basis?  More importantly, does this form of recognition have legal consequences?

In particular, I wish to examine in this post whether the recognition of NCS as legitimate representative of the Syrian people should be taken to mean that Syria is regarded as a case where the Syrian people are exercising their right of self-determination, through the NCS. If that is so, what consequences might this have for actions that foreign States may take and what assistance, if any, might this entitle the Syrian opposition to? Read the rest of this entry…

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Palestine, When is Your Birthday?

Published on December 5, 2012        Author: 

lironpic

 Col. (Retired) Liron A. Libman, LL.M, is a former Head of the International Law Department of the Israeli Defense Forces.

On 29 November, in what some reports described as a historic vote, the UN General Assembly accorded to “Palestine” the status of a “non-member observer state” in the organization. The Palestinian Liberation Organization (PLO) has enjoyed an observer status in the UN since 1974. Since 1988 the PLO mission to the UN was designated “Palestine”. Therefore, the supposed novelty is the UN recognition of Palestine as a state.

I do not want to discuss here the question of Palestinian statehood itself: whether “Palestine” has the objective qualification of a state under international law. Rather, I want to concentrate on the Palestinian official view as to the date when the Palestinian state was established. Many states celebrate their national day on that date, so in simple words, I ask when will the Palestinians celebrate their Independence Day?

I start my inquiry with the epilogue of Dr. Abbas, chairperson of the PLO, in his speech to the General Assembly:

“Sixty-five years ago on this day, the United Nations General Assembly adopted resolution 181 (II), which partitioned the land of historic Palestine into two States and became the birth certificate for Israel.

The United Nations General Assembly is called upon today to issue the birth certificate of the reality of the State of Palestine.”

Dr. Abbas asked the General Assembly to grant a “birth certificate” to the state of Palestine. Taking this metaphor seriously, this implies that the Palestinian state already exists. To the best of my knowledge (as a father, if I may add), first, a child is born and only afterwards can the happy parents receive a birth certificate. The certificate is an official acknowledgement of a fait accompli.

However, Dr. Abbas paralleled the resolution he asks for with General Assembly resolution 181(II) of 29 November 1947, which he views as the birth certificate of the state of Israel. The problem is that clearly resolution 181(II) did not recognize an existing state of Israel, but rather recommended the future establishment of a Jewish state (alongside an Arab state) upon the termination of the British Mandate. The resolution even set a timetable for the coming into existence of the two future states.  Israel was established only about six months later, on 14 May 1948, when the Jewish People’s Council approved the Declaration of the establishment of the state of Israel. Clearly, resolution 181(II) was not the birth certificate of the state of Israel.

Read the rest of this entry…

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Call for Papers: International Law Association (British Branch) Annual Conference – April 2013

Published on December 5, 2012        Author: 

The  International Law Association (British Branch) has issued a call for papers its 2013 spring conference which will be on the following theme:

The Changing Face of Global Governance: International Institutions in the International Legal Order

Venue: University of Oxford

Date: 12-13 April 2013

The Conference Keynote Address and Inaugural Oxford Global Justice Lecture will be delivered by:

by Patricia O’Brien, Under-Secretary-General for Legal Affairs and United Nations Legal Counsel

CONFERENCE THEME

The conference will explore the changing nature of international institutions and their impact on international governance, international law-making and law-enforcement. Read the rest of this entry…

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Oxford University Seeks Three Human Rights Post Doctoral Fellows

Published on December 5, 2012        Author: 

The Oxford Martin School Programme on Human Rights for Future Generations is seeking three Postdoctoral Research Fellows. This interdisciplinary research programme, which I will co-direct, will commence in January 2013 and will focus on the extent to which human rights constitutes an appropriate framework for confronting some of the most serious problems facing current and future generations. Within this shared framework the research programme focuses on three of the most urgent aspects of insecurity: armed conflict, poverty and environmental change. This programme is a collaboration of academics in the Faculty of Law, the Faculty of Philosophy, and the Department of Politics and International Relations, at the University of Oxford. The Research Fellows will have completed (or be about to to complete) a doctorate in Law, Philosophy, Politics or International Relations. Each of the posts is for three years starting in January 2013 or as soon as possible thereafter.

Further information about these positions can be found here  and  here

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Does General Assembly Resolution 67/19 Have Any Implications for the Legal Status of Palestine?

Published on December 4, 2012        Author: 

Jure Vidmar is Leverhulme Early Career Fellow in the Faculty of Law, and Research Fellow at St Johns College, University of Oxford. He has written widely on the process of State creation (see SSRN page here), including: ‘Explaining the Legal Effects of Recognition’ (2012) International and Comparative Law Quarterly 361.

On 29 November 2012, with 138 votes in favour, nine against and forty-one abstentions, the General Assembly adopted Resolution 67/19, which, inter alia, “accord[ed] to Palestine non-member observer State status in the United Nations…” This post considers whether the vote in the General Assembly objectively confirms that Palestine is a state and/or whether the General Assembly on 29 November 2012, in fact, created a new state (a matter considered briefly by Dapo at the end of his post on the Resolution). In essence, did the Resolution change anything in terms of legal status and did Palestine on 29 November become more of a state than it was on 28 November? The post thus narrowly focuses on the implications of Resolution 67/19; it does not intend to clarify Palestine’s legal status in general.

In this instance, Palestine’s legal status could be implicitly clarified in two ways. One way would be if the Resolution meant admission to the international organisation, which prescribes statehood as a prerequisite for membership. The other possibility is that by voting for the Resolution which accords “to Palestine non-member observer State status” [emphasis added], those states voting in favour implicitly recognised Palestine as a state. Indeed, the Resolution here says that Palestine is a state. What is the legal significance of this phrasing and of the fact that 138 states are happy with it? Did the 138 states voting in favour thus create a state by (implicit) recognition or at least confirm Palestine’s legal status?This post will argue that the General Assembly resolution itself and the voting behaviour of states neither altered nor clarified the legal status of Palestine. On 29 November 2012, Palestine did not become more or less of a state than it was before. The Resolution may well be a significant step in an internationalised political process which could ultimately clarify and settle Palestine’s legal status. But the Resolution of 29 November 2012 does not have any direct legal implications for Palestine’s statehood.  Read the rest of this entry…

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Palestine as a UN Observer State: Does this Make Palestine a State?

Published on December 3, 2012        Author: 

Last week, the UN General Assembly voted by 138 to 9 (with 41 abstaining) “to accord to Palestine non-member observer State status in the United Nations”. Thus, Palestine which has been an observer at the UN since 1974 has had its status within the UN upgraded to being an observer State. There has been much euphoria on one side as a result of this decision, and dismay on the other side. However, what are the implications, if any, of this decision. It is thought that one reason why Israel opposed the change, though it asserts that the decision achieves nothing, is that characterising the Palestinian as an observer State would give Palestine access to legal, particularly judicial, remedies that it otherwise would not have (see BBC Q & A report here). It was reported that the United Kingdom, which in the end abstained from voting, was prepared to vote in favour of the resolution, if Palestine had been prepared to pledge not to ratify the Rome Statute of the ICC or to seek to utilise the International Court of Justice. So though the granting of observer Status does not change “the facts on the ground”, it is thought that it would change the legal position of Palestine under international law. But does it? Are there new legal options open to Palestine as a result of the resolution and does the resolution constitute Palestine as a State?

Any student of international law will be familiar with the debate between the declaratory theory of recognition of States and the constitutive theory. Theory, practice and judicial decisions favour the declaratory theory and assert that recognition does not create Statehood. Although last week’s decision does not grant Palestine membership of the UN (which would require Security Council approval), the decision to grant observer State status to Palestine is an act of collective recognition of the statehood of Palestine. If that decision is capable of effecting the legal changes hoped for (by proponents) or feared (by those oppose the decision), this will provide strong support to the view that collective recognition is capable of creating Statehood. Read the rest of this entry…

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The Sheer Awfulness of Julian Assange

Published on December 1, 2012        Author: 

Julian Assange gave an interview to the BBC yesterday – available here – which I commend to readers; it’s only 10 minutes long. Assange has of course had a long history of Messianic self-victimization and refusing to submit to legal process in Sweden and the UK on charges of sexual assault. I won’t even go into the momentous irony of a supposed champion for the freedom of speech taking refuge in the embassy of a country whose regime is generally not regarded as being very friendly to said freedom, or indeed of that country criticising the UK as imperialist whilst simultaneously violating the UK’s sovereignty by unlawfully harbouring a fugitive from justice. But while this BBC interview is a continuation of a long tradition on his part, I must say that until I had watched it I had not realized just how absolutely awful and cringe-worthy Assange is as a human being – he was not simply uncivil to the unfortunate BBC journalist interviewing him (herself admittedly not say an Edward R. Murrow), but was a first rate, frothing at the mouth kind of bully. His frequently completely uncritical supporters may want to take note.

My favourite moment in the interview comes at about 3:35 when he says, apparently as conclusive evidence that the UK Supreme Court decision dismissing his appeal against extradition to Sweden was completely wrong, that ‘in two academic articles [holding up two fingers] the Cambridge International Law Journal has condemned the findings of the Supreme Court.’ He is in fact referring to these two blog posts by Tiina Pajuste and Cameron Miles (both of which I recommend, who are rightly critical of the Court’s application of Art. 31(3)(b) VCLT) on the website of the Cambridge Journal of International and Comparative Law (on whose academic review board I happily sit, in the spirit of full disclosure). Now how adorable is that? Abscoding from the law on the pretext that the decision of the highest court in the land was criticized in a blog post or two. I see much potential here!

(For our previous coverage of the Assange saga and the analysis of the pertinent legal issues readers can click on ‘Diplomatic Asylum’ in the categories tab below).

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Women on Board: The EU Commission’s Proposal for a Directive on Improving the Gender Balance among Non-Executive Directors of Companies Listed on Stock Exchanges and Related Measures

Published on November 30, 2012        Author: 

Anne Peters is Professor of International and Constitutional Law, University of Basel,  and currently fellow at the Wissenschaftskolleg Berlin.

1. Background and core contents of the proposed Directive

On 14 November 2012, the EU Commission tabled a proposal for a Directive on a highly sensitive issue and did so without using the ‘Q-word’ (COM(2012) 614 final). The Commission bases its proposal on Art. 157(3)TFEU which empowers the EU to adopt ‘measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation’. The proposed Directive requires that

‘Member States shall ensure that listed companies in whose boards members of the under-represented sex hold less than 40 percent of the non-executive director positions make the appointments to those positions on the basis of a comparative analysis of  the qualifications of each candidate, by applying pre-established, clear, neutrally formulated and unambiguous criteria, in order to attain the said percentage at the latest by 1 January 2020 or at the latest by 1 January 2018 in case of listed companies which are public undertakings.’ (Art. 4(1)).

The Directive further holds that

‘In order to attain the objective laid down in paragraph 1, Member States shall ensure that, in the selection of non-executive directors, priority shall be given to the candidate of the under-represented sex if that candidate is equally qualified as a candidate of the other sex in terms of suitability, competence and professional performance, unless an objective assessment taking account of all criteria specific to the individual candidates tilts the balance in favour of the candidate of the other sex.’ (Art. 4(3)).

The proposed Directive is equally applicable to various board structures for listed companies that exist in member states, both to dual systems (separate management and supervisory boards) and to unitary systems combining management and supervisory functions.

Measures to improve the gender balance through quotas are highly controversial both politically and in legally. Many states of the world have been experimenting with quotas for women in public employment/civil service and for political elections/party lists. Imposing by law quotas for women onto the business sector raises additional legal issues, because such legislation interferes with the business actors’ rights of property, economic freedom, and the freedom of association. Reacting to the conspicuously meagre presence of female managers, some EU member states, notably Norway and Denmark, have already introduced quotas, goals, or reserved seats in the boards of companies’ management positions. In other states such as Germany, such a policy is totally contested. This post sketches out the main legal issues hoping to trigger further debate.

Read the rest of this entry…

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Human Rights Essay Award Competition Deadline: February 1, 2013

Published on November 29, 2012        Author: 

This annual competition sponsored by the Academy on Human Rights and Humanitarian Law at American University Washington College of Law seeks to stimulate the production of scholarly work in international human rights law.

The 2013 topic is The Rights of Lesbian, Gay, Bisexual and Transgendered People and International Human Rights Law. Participants have the flexibility to choose any subject related to the assigned topic. The best articles may be published in the American University International Law Review.

 The Academy will grant two Awards, one for the best article in English and one for the best article in Spanish. The Award in each case will consist of:

  • a scholarship to the Academy’s Program of Advanced Studies
  • travel expenses to Washington D.C.
  • housing at the university dorms
  • a per diem for living expenses

 For detailed guidelines about the award please visit: www.wcl.american.edu/hracademy/hraward.cfm or contact the Academy at hracademy {at} wcl.american(.)edu

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