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“Rescuing ‘Boat People’ in the Mediterranean Sea: The Responsibility of States under the Law of the Sea”.

Published on May 31, 2011        Author: 

Dr. Efthymios Papastavridis, LLM(Athens), LLM(UCL), PhD (UCL) is Adjunct Lecturer, University of Thrace, Faculty of Law and Research Fellow, Academy of Athens, Greece [papastavridis {at} Academyofathens(.)gr].

1. Introductory Remarks

According to a very recent article by The Guardian, ‘a boat carrying 72 passengers, including several women, young children and political refugees, ran into trouble in late March after leaving Tripoli for the Italian island of Lampedusa. Despite alarms being raised with the Italian coastguard and the boat making contact with a military helicopter and a warship, no rescue effort was attempted. All but 11 of those on board died from thirst and hunger after their vessel was left to drift in open waters for 16 days.’

The aforementioned incident, unfortunately, is not the only one that has occurred in the troubled waters of the Mediterranean Sea in recent years; Cap Anamur or the Pinar are only a couple of cases, in which the legal regime of search and rescue at sea has been seriously questioned. Therefore, a propos this incident as well as in view of the increasing number of “boat people” fleeing from North Africa in unseaworthy vessels, it is well worth making certain short comments with regard to the alleged violation of the law of the sea and the concomitant responsibility of the States involved.

Assuming that both the facts about the location of the vessel and the allegations concerning the inertia displayed by NATO units reported in the above-mentioned article by The Guardian are accurate, the following preliminary remarks are in order: first, since the distress call to the Italian authorities was made while the boat was on high seas (reportedly 60 n.m. off Libyan coast), the relevant applicable law is framed by the rules concerning search and rescue on the high seas. Secondly, it should be ascertained from the outset that NATO as such does not incur responsibility for the alleged internationally wrongful acts. On the one hand, only States are parties to the relevant treaties [with the sole exception of European Union, which is party to the UN Convention on the Law of the Sea (LOSC, 1982), albeit only in respect of matters relating to which competence has been transferred to it by Member States (Articles 4 and 5 of Annex IX of LOSC and EC’s Declaration, 1 April 1998;);. On the other, NATO is not bound by the corresponding rules of customary international law, since it is far beyond the remit of NATO to provide search and rescue assistance to vessels on the high seas. Thus, only Member States participating in the Operation Unified Protector against Libya might have incurred responsibility for the breach of the rules in question.

2. Obligations for Flag and Coastal States under the Law of the Sea

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“Aircraft carrier left us to die, say migrants”,

Published on May 31, 2011        Author: 

Visiting Scholar at  Columbia Law School, Research Fellow at University of Cagliari (Italy). She holds a Maîtrise en Droit International from University Paris I and a PhD in International Law from the University of Milan. In 2010 she gave a series of lectures at the Academy of European Law (EUI) on “EU immigration policy and international protection: EU joint border control and international obligations”.

On Sunday, 8 May 2011, the British newspaper The Guardian reported the story of a boat carrying 72 persons, among them asylum seekers, women and children, which left Tripoli (Libya) for the Italian island of Lampedusa  at the end of March 2011. After 16 days at sea, the boat was washed up on the Libyan shore with only 11 survivors. The survivors reported that during the journey they used their satellite phone, which later ran out of battery, to call an Eritrean priest in Rome for help who then alerted the Italian Coast Guard. They also said that a helicopter overflew them and threw water and biscuits down onto their boat. An aircraft carrier sighted them thereafter. No one rescued them.

This tragedy once again demonstrates the failure of states in implementing their duty to render assistance at sea, as provided by Article 98 of the United Nations Convention on the Law of the Sea, and by the Search and Rescue Convention and the Safety of Life at Sea Convention.  It also highlights the lack of coordination among Mediterranean states. In this brief note I wish to cast this incident in a legal perspective. I will spell out the legal duty to render assistance at sea, explain the situation in the Mediterranean – drawing particular attention to the lack of mechanisms for coordination and cooperation – and, lastly, I will highlight how this disturbing condition results is a result of the immigration policies of the individual states involved.

The content of the duty to render assistance at sea

After the impact of the Indochinese crisis in the Seventies and in the wake of instances of non-rescue at sea, states adopted the Search and Rescue Convention (SAR Convention) in 1979 in the framework of the International Maritime Organization (IMO). The Convention aims to create an international system for coordinating rescue operations and for guaranteeing their effectiveness, efficiency and safety. States parties are to exercise SAR services in the area under their responsibility and are invited to conclude SAR agreements with neighbouring States to regulate and coordinate operations and rescue services in the maritime zone designated in the agreement. It is important to note that undertaking rescue operations does not exhaust the duty to render assistance – a duty now codified in Article 98 of the Law of the Sea Convention, but  already existing as part of earlier treaty law and considered a principle of customary law. This duty is only fully met when the rescued persons can disembark in a place of safety.  Read the rest of this entry…

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Disobeying the Security Council—Some Responses

Published on May 30, 2011        Author: 

Many thanks to Erika de Wet, Marko Milanović, and Matthew Happold, who took the time to read Disobeying the Security Council and write such carefully considered criticisms of what are indeed the central arguments in the book. In what follows I try to respond to some of these criticisms and comments, mainly be reiterating points made in the book, but also trying to take some of them further. Erika de Wet notes, in her review, that the relevant arguments put forward in the book are not ‘watertight’ and require further motivation. No argument there (excuse the pun)—I doubt that any argument (of mine?) could ever be watertight. What I sought to do in Disobeying the Security Council was to offer an interpretation of state practice in response to legally problematic Security Council sanctions, and to legally qualify the admittedly rare instances of principled disobedience of such sanctions that are perceived by states as being wrongful. In that, the book does not really seek to advance a normative argument (‘this is how things should look’) but rather to offer how things actually do look—even if only in its author’s eyes. So much by way of introduction to my responses. Read the rest of this entry…

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ESIL Update

Published on May 29, 2011        Author: 

I am just on my way back from the 4th Research Forum of the European Society of International Law in Tallinn, Estonia. Many thanks are due to Lauri Malksoo and his team for organizing an excellent event. Some news from ESIL follow below.

The ESIL-ASIL-EJIL-HiiL symposium “Global Public Goods and the Plurality of Legal Orders” will be held at the European University Institute (EUI), Florence, on 24 -25 October 2011. The symposium is arranged by the Academy of European Law (EUI), the European Society of International Law, the American Society of International Law, the European Journal of International Law, and the HiiL project on Private Transnational Regulatory Regimes. Further details will be available on the ESIL website shortly.

The 5th ESIL Biennial Conference “Regionalism and International Law” will be held in Valencia, Spain, on 6-8 September 2012.

The 5th ESIL Research Forum “International Law as Profession’’ will be held in Amsterdam, The Netherlands, in May 2013. The Society particularly wishes to encourage younger scholars to engage in research, particularly empirical research, about the various aspects of the international legal profession and legal professionals.

Finally, ESIL would like to invite its members to register for the MILE 2.0 project, the first professional directory specifically dedicated to international law professionals. The database is fed by ESIL members themselves, who create and manage their profile online. All profiles can then be browsed or searched through a powerful search engine.

 

The ESIL-ASIL-EJIL-HiiL symposium “Global Public Goods and the Plurality of Legal Orders” will be held at the European University Institute (EUI), Florence, on 24 -25 October 2011. The symposium is arranged by the Academy of European Law (EUI), the European Society of International Law, the American Society of International Law, the European Journal of International Law, and the HiiL project on Private Transnational Regulatory Regimes. Further details will be available on this website shortly.
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Some Remarks on Disobeying the Security Council

Published on May 27, 2011        Author: 

Matthew Happold is Professor of Public International Law at the University of Luxembourg.

 I greatly enjoyed Dr Tzanakopoulos’ Disobeying the Security Council.  The book displays a richness of argument backed by a depth of research.  At point after point, I found myself in agreement with the author.  Yet, sympathetic though I am to his approach, I was unable to follow his argument to the end.

In the first two parts of Disobeying the Security Council, Dr Tzanakopoulos examines how the imposition of non-forcible measures under Article 41 of the UN Charter can engage the international responsibility of the United Nations, and how – and by whom – such responsibility is determined.  Some minor points aside, I agree with Dr Tzanakopoulos.  Whatever the situation as regards the implementation of binding resolutions of the Security Council, it seems evident that their promulgation is attributable to the United Nations, of which the Council is one of the principal organs. And absent a few provocateurs, there seems general agreement that the Council’s powers are not unlimited.  Rather, differences exist regarding what the extent of those powers is and who is entitled to determine whether the Council stepped beyond them.  The International Court of Justice seems unable – and has definitely shown itself unwilling – to judicially review Council decisions. Other courts and tribunals apply their own law, whether that is national law or that mandated by their constituent treaty, so in most cases they are not concerned with whether a particular Council resolution is in breach of the United Nations Charter or of general international law.  Indeed, it is usually not the relevant Council resolution that they are reviewing but the act implementing it within their own legal system.  Moreover, only a certain limited class of questions concerning the legal effect of Council resolutions tend to come before national courts, that is, those where resolutions directly affect individual rights.  Hence the concentration of cases on the ‘blacklisting’ of individuals and the freezing of their assets under the sanctions regimes established by Council resolutions 1267 and 1333.

Given this, one can only fall back on the general rule in international law: that States retain the power to auto-determine the legality of measures issued by the Council. It is no more than stating the obvious that UN member States have an entitlement to interpret Security Council decisions.   Interpretation must be undertaken, at least in the first instance, by member States, because it is they who implement Council resolutions and they must ascertain what they are obliged to do in order to do it.  Indeed, to a large extent the distinction between interpretation and determination of one’s legal obligations is a distinction without practical difference. For example, the conclusion of the Organization of the Islamic Conference that paragraph 6 of Security Council resolution 713 (which imposed an arms embargo on the former Yugoslavia) did not ‘legally’ apply to Bosnia-Herzegovina was premised on the view that to interpret the embargo as applicable to Bosnia would render the resolution ultra vires because the Council could not legally prevent a State from seeking to exercise its ‘inherent’ right of self-defence (not un-coincidentally this was the argument put by Bosnia before the ICJ).

However, in the final part of the book Dr Tzanakopoulos argues that when States disobey the Security Council what they are engaging in are countermeasures in response to illegal conduct by the Council. Here the hinge on which matters seem to pivot is Article 25 of the UN Charter, which Dr Tzanokapoulos interprets are making any disobedience of binding Council decisions illegal. Hence, the only way such an illegality can be justified is as a response to another prior illegality, the resolution itself.  I confess to having problems with this characterisation.  Read the rest of this entry…

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A Comment on Disobeying the Security Council

Published on May 26, 2011        Author: 

Antonios Tzanakopoulos has written a powerful book in Disobeying the Security Council. It is a rich – at times very rich – piece of scholarship, covering a range of complex issues. The book makes two important arguments (and at that ones I agree with!). First (a point of course already made before), that it is states themselves which are the ultimate judges of the legality of the Security Council’s decisions. In a decentralized system lacking any compulsory and systematic means of judicial control and dispute resolution, self-help may turn out to be the only game in town. It is by choosing to openly disobey (or more frequently, very narrowly interpret) decisions of the Security Council that they regard as unlawful that states act as a check against the Security Council abusing its powers. Second (and relatedly), that much of the scholarly discussion regarding the legality of Security Council action tends to adopt a domestic public law mindset, whether quite consciously or at times uncritically, a mindset which is inappropriate when some of the underpinnings of domestic public law, such as compulsory adjudication, are lacking

In order to advance these arguments, and to offer a solution that would both provide a meaningful check on the UNSC’s powers and yet not suffer from the perils of domestic law-thinking, Antonios makes several crucial conceptual and doctrinal moves. It is with some of these that I have to part ways. Most importantly, he changes the focus from the validity of the decisions of the UNSC to the UN’s responsibility for illegal UNSC decisions as internationally wrongful acts, measured against the law binding on the organization. As always in the decentralized international system, states have the right of auto-determination, i.e. of deciding for themselves that the organization is responsible, and then have the right to take countermeasures against it, including disobeying its decisions and refusing to pay their allocated dues to it. In doing so, of course, states as always assume the risk that they might be wrong in their own assessment, and if they are they must suffer the consequences.

In essence, Antonios’ approach is very much one of classical international law, relying on established legal institutions and methods of this decentralized system such as responsibility and countermeasures, and avoiding the pitfalls of constitutionalization or domestic law-thinking generally. This critical effort is certainly a laudable one – but whether it ultimately succeeds is not as clear.

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Debating Disobeying the Security Council – is it a matter of ‘a rose by any other name would smell as sweet’?

Published on May 25, 2011        Author: 

Erika de Wet is Co-Director and Professor of International Law, Institute for International and Comparative Law in Africa, University of Pretoria (South Africa); Professor of International Constitutional Law, University of Amsterdam (The Netherlands). The author’s critique is based on views developed in Chapters 4 and 10 of her monograph entitled The Chapter VII Powers of the United Nations Security Council (Hart Publishing, 2004).

The book by Antonions Tzanakopoulos examines how and by whom the responsibility of the United Nations for unlawful Security Council sanctions can be determined. Its central thesis is that States can respond to unlawful sanctions imposed by the Security Council by disobeying the Security Council’s command in a manner that constitutes countermeasures to the Security Council’s unlawful action. The book is very well written, creative and  intellectually challenging in the way it attempts to align the law of State responsibility with the Law of the United Nations Charter.

However, like with other theories developed in an attempt to curb illegal action by the United Nations Security Council, closer scrutiny reveals that the arguments presented are not water-tight and may require further motivation. The subsequent paragraphs will focus on two such issues. The first concerns the reason why Antonios resorts to the concept of countermeasures in the first place, whereas the second relates to the analogy that he draws between Security Council sanctions and countermeasures.

A cornerstone of Antonios’ argument centres around his submission (pp 164-166) that all member States remain bound to decisions under article 25 of the United Nations Charter, which determines that ‘[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’. This article remains controversial due to the question whether the phrase ‘in accordance with the present Charter’ refers only to the member States or the organisation as well. If it referred only to the member States they would be obliged to carry out decisions of the Security Council under all circumstances. If, however, the phrase referred to the organisation as well, it is arguable that the member States would only be obliged to carry out those decisions that were adopted in accordance with the Charter, i.e. intra vires.

Antonios does not accept that the controversial phrase ‘in accordance with the present Charter’ should be interpreted as meaning that member States are only bound by those Security Council decisions that remain within the competencies of the Council (i.e. intra vires decisions). He rejects this position on the basis of two arguments. First, he claims (with rather cursory arguments) that the ambivalence surrounding the meaning of this phrase cannot be resolved through interpretation. His second and perhaps more intriguing argument is that no constitutional system can operate unless there is some final instance that promulgates acts with which all the addressees must comply, irrespective of their lawfulness. In the subsequent paragraph he acknowledges that the term constitutionalization is problematic (without attempting to suggest a definition of his own) and doubts whether the Charter was meant to be a constitution. Even so, he seems to adhere to the argument that the Charter system, in order to operate, requires States to remain bound to all Security Council decisions, regardless of their legality (until such a time as they are revoked by the Security Council itself).

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An Overview of Disobeying the Security Council

Published on May 24, 2011        Author: 

I. Introduction

Disobedience of an illegal or unjust command has long been a source of inspiration and scholarly excitement for lawyers, philosophers, and even dramatists, among many others. One of the best known tragedies of Sophocles, Antigone, sees the heroine defy the edict of Creon, the ruler of Thebes, in order to comply with the superior (in her view) rule that requires that she bury her dead brother in accordance with holy rites. How to qualify and/or justify disobedience in extreme cases has ever since featured as one of the most hotly debated jurisprudential issues. The book that will be discussed here deals with the legal qualification of disobedience of binding Security Council sanctions resolutions that are perceived by States as being in violation of the UN’s obligations.

At the outset I should like to thank EJIL:Talk! for hosting a debate on Disobeying the Security Council. I am in particular grateful to the editors-in-chief and to OUP for so kindly and diligently organizing this, as well as to the commentators who took the time to read and engage with the book (at least now I can plausibly argue it has been read by more than the proverbial average of two people who read most academic monographs: the author, and their mother). The book is an updated version of my DPhil thesis at the University of Oxford, which was submitted under the rather uninviting title ‘Responsibility of the United Nations for Wrongful Security Council Non-forcible Measures’ (ie Article 41 measures or simply ‘sanctions’).

The first move is to explain why I am focusing on the international responsibility of the United Nations rather than discuss its ‘accountability’. The term has attracted a lot of attention in the scholarship dealing with the question of limits on the ever-augmenting powers and impact of international organizations, despite its less-than-obvious ambit. The opening chapter of the book is devoted to discussing the definition and substance of the term, and to showing that international (legal) responsibility is the most pertinent (and the ‘hardest’) form of accountability that can be employed in the case of the United Nations when the latter is acting through the Security Council. This leads into the discussion of the specifics of UN responsibility for Council sanctions that follows. The discussion is structured in three parts, which follow by-and-large the structure of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (‘ASR’), as well as the Draft Articles on the Responsibility of International Organizations (‘DARIO’): the first part deals with the ‘engagement of responsibility’, ie the requirements for the UN to become responsible under international law (II). The second part proceeds to question who is to determine the engagement of UN responsibility, ie who is to decide whether the UN has become responsible under international law for Security Council ‘sanctions’ (III). The final part deals with the consequences of the UN having engaged its responsibility (IV).

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ILR Returns

Published on May 23, 2011        Author: 

Jacob Cogan has just let us know that he is restarting his blog, the International Law Reporter, after a three month break. Those are welcome news! ILR has been an invaluable resource, and many thanks are due to Jacob for his effort, as well as to Don Anton who has recently started his weekly international law digest.

On a different note, the Disobeying the Security Council book discussion will start tomorrow, due to the volume of posts today.

 

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ICC Prosecutor Seeks to Open Investigation into Situation in Cote d’Ivoire

Published on May 23, 2011        Author: 

The ICC Prosecutor has announced that he intends to request permission from a Pre-Trial Chamber to open investigations into the situation in Cote d’Ivoire since 28 Nov. 2010. Assuming permission is granted, this will be second situation (after Kenya) in which the Prosecutor will have begun investigation into a situation in the exercise of his powers to act propio motu. It will also be the 7th situation before the Court. Importantly, it will be the first situation in which the Court seeks to exercise jurisdiction over a non-party who has accepted the Court’s jurisdiction under Article 12(3) of the Court’s Statute. Cote d’Ivoire accepted the jurisdiction of the Court under Art. 12(3) in 2002 and this has been reconfirmed (twice) by the newly elected (and newly seated) president Alassane Outtara.

It is not clear to me why Cote d’Ivoire does not just ratify the Statute rather than use accceptance under Art. 12(3). If anyone knows please do add a comment below.

All seven situation countries in which the ICC is conducting investigations and prosecutions are in Africa. This has given rise to tensions between some African leaders, the African Union and the Court (see here and here). There have been  allegations that the Court is somehow acting unfairly against Africa in its selection of situations. The addition of Cote d’Ivoire will fuel these allegations. However, it ought not to given that the leaders in  Cote d’Ivoire seem to have been rather keen on ICC action. The country is not a party and could have abstained from accepting the Court’s jurisdiction or even revoked that acceptance after having first made it in 2003. Instead the acceptance has been confirmed twice in the last 5 months. It is not quite a self referral (and it is not clear to me if a non-party can refer a situation to the ICC) but it is as close as it gets. This means that four of the seven situations before the ICC have been initiated by the African countries concerned and even the Kenyan situation originated from a Kenyan domestic process.

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