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Crimea and the Limits of International Law

Published on March 10, 2014        Author: 

The situation in Crimea has left many an international lawyer in shock. It seems to transport us back to past times when the superpowers did what they pleased and the others suffered what they must. The end of the Cold War, so we hoped, had ushered in a different era in which international law found greater respect. The post-9/11 years sowed doubts about this; now we’re getting closer to certainty that the times haven’t changed that much.

For some, like Eric Posner or Julian Ku, Crimea is yet another piece of evidence that international law is weak. Of course it is, but this weakness is entirely unsurprising. Who would have thought that the rules on the use of force could be effectively enforced against a great power, a regional hegemon, in its own backyard? Great powers – including Western ones – have always treated the law on the use of force somewhat liberally. They have evaded censure, or didn’t care too much about it when the stakes were high. And the UN collective security system is explicitly designed in a way that makes action against them impossible. This tells us something about the limits of international law, and, as Erik Voeten rightly points out, it should give us reason to worry if a legal system allows powerful actors to ignore it so openly. But for international law, this is nothing new. When it comes to the use of force, some states have always been more equal than others.

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Announcements: Society of Legal Scholars’ Annual Conference, Nottingham; ESIL Lecture, Geneva

Published on March 9, 2014        Author: 

1. Planning is now in hand for the 2014 conference of the Society of Legal Scholars.  The SLS is the learned society for those who teach law in a university or similar institution or who are otherwise engaged in legal scholarship in Britain and Ireland.   This year’s conference will be held at the University of Nottingham on 9-12 September 2014. The conference theme is ‘Judging in the 21st Century’.

The International Law section will be meeting in the first half of the conference, on Tuesday 9 and Wednesday 10 September 2014, and proposals for papers to be presented at the four sessions that have been allocated to the group are now invited.  Discussions of any aspects of public international law are welcome and proposals need not relate to the conference theme.  The deadline for the submission of proposals is 11 April 2014, and proposals should include a provisional title, a short abstract (a paragraph detailing what the paper is about) and an indication of the author’s willingness to participate in the conference.  If you do wish to offer a paper, please contact Prof. Matthew Happold, co-convenor of the International Law section.

2. The European Society of International Law (ESIL), together with the American Society of International Law (ASIL) and the MIDS – Geneva LL.M. in International Dispute Settlement will co-organize a lecture entitled From the ICJ to the US Supreme Court : The Vienna Convention on Consular Relations, International Law, and the US Constitution. This lecture will be delivered by Mr. Donald Donovan, Partner at Debevoise & Plimpton, LLP, and President of the American Society of International Law, on Tuesday, 25 March 2014, 18h15 at the Auditorium Ivan Pictet, Maison de la Paix, Chemin Eugène-Rigot 2, in 1202 Geneva. The lecture will be followed by a cocktail reception. Please register by sending an email to : info {at} mids(.)ch

Filed under: Announcements and Events
 

Harold Koh’s Legal Opinions on the US Position on the Extraterritorial Application of Human Rights Treaties

Published on March 7, 2014        Author: 

Cross-posted on Just Security.

Earlier today Charlie Savage of The New York Times broke the story that while serving as the Legal Adviser at the US State Department Harold Koh wrote two major opinions on the extraterritorial application of human rights treaties, urging the Obama Administration to abandon the previous categorical position that the International Covenant on Civil and Political Rights can never apply outside a state party’s territory. The first opinion is on the geographical scope of application of the ICCPR, is dated 19 October 2010, and is available here. The second, on the geographic scope of application of the Convention against Torture and its application in situations of armed conflict, is dated 21 January 2013, and is available here. The two opinions, probably obtained by Savage in yet another leak from within the Administration, are a fascinating read. Koh essentially adopts almost all of the critiques levied against the existing US position, which he sees as increasingly untenable, and provides his own (relatively moderate) model of how the two treaties should apply outside a state’s own territory.

Savage also reports that despite Koh’s opinions the Administration has decided not to abandon the previous US position, simply because it fears (or at least a sufficient number of its component parts do) that accepting that human rights treaties apply extraterritorially would make its collective life more difficult, as everything from extraterritorial drone strikes to NSA surveillance could fall within the purview of the ICCPR. We shall soon see if Savage’s reporting is correct – the US is up for periodic review before the Human Rights Committee next week, and this is bound to be one of the first questions asked. As I’ve explained before, the US Fourth Periodic Report and a follow-up communication to the Committee merely registered the US position and the criticism thereof, without reiterating it, thus leaving the door open for change. If Savage’s reporting does prove to be correct and the US now clearly reiterates before the Committee that the ICCPR cannot apply extraterritorially because its Article 2(1) is supposedly crystal clear and unambiguous when it says that ‘[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant,’ an important opportunity will have been missed.

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Refining Al-Skeini v UK: The ECtHR’s Grand Chamber hearing in Jaloud v Netherlands

Published on March 7, 2014        Author: 

The Grand Chamber at the ECtHR recently heard the case of Jaloud v the Netherlands. The case raises interesting issues concerning both extra-territorial jurisdiction and the obligations States owe to foreign nationals when deployed in foreign military operations. The facts are reasonably straightforward. The applicant’s son drove his car through a checkpoint without stopping in Iraq in 2004. A Dutch lieutenant at the checkpoint opened fire, hitting the applicant’s son who later died of his wounds. No weapons were found within the car. The Dutch forces there investigated the use of force and concluded that the use of force had been justified.

Jurisdiction

To begin with the jurisdictional issues, any hope that the question of extra-territorial jurisdiction had been settled in Al-Skeini v UK was dashed when both the Dutch and the UK, who acted as third party interveners, presented arguments that the applicant’s son was not within Dutch jurisdiction for the purposes of Article 1 ECHR when he was killed.

In principle there are 2 main forms of extra-territorial jurisdiction: spatial jurisdiction, which arises when the State exercises effective control over some foreign territory and personal jurisdiction, which arises where the State exercises authority and control over an individual. In Al-Skeini v UK, the ECtHR held that the UK was obliged to provide Convention-compliant investigations into the deaths of Iraqi civilians which occurred in the context of UK military operations while it occupied Iraq. The ECtHR applied a jurisdiction model somewhere between spatial jurisdiction and personal jurisdiction by holding that jurisdiction arises when a contracting State ‘exercises all or some of the public powers normally to be exercised [by the government of the State]’, (Al-Skeini at [135]) and then exercises authority and control over a person. In these circumstances instantaneous acts of UK soldiers, such as shootings, automatically created a jurisdictional link to the State:

 the United Kingdom […] assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government […] the United Kingdom assumed authority and responsibility for the maintenance of security in South-East Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom’ – (Al-Skeini at [149])

 The key difference between this model and standard personal jurisdiction is that where the State is exercising some public powers, the ECtHR treats the power to kill and the instantaneous act of killing as ‘authority and control’ over the individual (discussion of this here and here). Historically, the ECtHR had ruled that instantaneous acts, such as firing a missile from a plane, did not give rise to authority and control over the airstrike victims (see Bankovic and Ors v Italy and Ors).

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Timor-Leste v Australia: Provisional Observations

Published on March 6, 2014        Author: 

As has already been reported in this forum, earlier this week the International Court of Justice issued an order indicating provisional measures in Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia). The documents and data in question relate to ongoing arbitral proceedings between Timor-Leste and Australia. The documents were taken from the Canberra-based offices of a legal counsel to Timor-Leste by the Australian Secret Intelligence Organisation (ASIO) under a warrant issued by the Attorney-General of Australia.

On the whole, the order does not appear terribly exciting, but it does raise three issues worthy of some attention.

The first relates to the role of the Attorney-General. The Court, by twelve votes to four, ordered Australia to keep the documents it had seized under seal and not permit them to be used to the detriment of Timor-Leste while proceedings before the ICJ were under way. The Court indicated these measures despite the written undertakings of the Attorney as to the measures the Australian government was taking to safeguard the confidentiality of the documents. (To point out the obvious, this is the very same Attorney-General who authorised the seizure of the documents in the first place.)

While the majority of the ICJ deemed the Attorney-General’s undertakings insufficient, the Court had no difficulty in viewing them as binding under international law. The Court referred in this respect to a statement of the Agent of Australia that “the Attorney-General … [had] the actual and ostensible authority to bind Australia as a matter of both Australian and international law”. In other words, Australia conceded that, as a matter of international law, it was bound by the undertakings of its Attorney-General. Read the rest of this entry…

 

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…

Filed under: Government, Use of Force
 
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Appeal from the Ukrainian Association of International Law

Published on March 5, 2014        Author: 

The Ukrainian Association of International Law has issued an analysis of recent events in the Ukrainian. An English translation of this analysis and appeal is included below. I am told that the original can be found here. The Association argues that Russia’s decision to move military forces into Ukraine is not only a violation of the UN Charter and general international law, but also of the bilateral treaty permitting Russia to retain the Black Sea Fleet in Ukraine, and also of the security assurances given in the Budapest Memorandum of 1994 by Russia (and also by the US, the UK, France and China). Much of the analysis contained in the Appeal by the Association is undoubtedly correct.

The Association rejects Russian claims that it is acting to protect rights of the Russian population in Ukraine. However, it is surprising to read that “[the Association] would like to stress that no duly authorized national, foreign or international institution has declared any violation of human rights on the territory of Ukraine, or specifically in the Autonomous Republic of Crimea, which would have required the intervention of any subject of international law or the international community.” Is this to say that it would have been lawful for Russia to intervene had there been such a declaration of violation of human rights?

“An Appeal from the Ukrainian Association of International Law to the people of Ukraine, the Russian Federation and the fraternal people of the neighboring States with whom we share close family ties and historical connections, as well as the international community as a whole:

On 1 March 2014 at 17.21 (Kyiv time), the Council of the Federation of the Federal Assembly of the Russian Federation (the Council of the Federation) unanimously supported the appeal of the President of the Russian Federation, Mr. Vladimir Putin, on sending a “limited contingent of military troops” of the armed forces of the Russian Federation into the territory of Ukraine.

This decision was taken in breach of the United Nations Charter, Read the rest of this entry…

 
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The Crisis in Ukraine and the Prohibition of the Use of Force: A Legal Basis for Russia’s Intervention?

Published on March 4, 2014        Author: 

The European continent is currently witnessing the most severe security crises since the tragic events surrounding the dissolution of the Republic of Yugoslavia. The post will discuss the legal bases for Russia’s use of force on the Crimean peninsula. 

On 1 March 2013 the President of the Russian Federation submitted an appeal to the Council of the Russian Federation for authorization to use armed force ‘[i]n connection with the extraordinary situation that has developed in Ukraine and the threat to citizens of the Russian Federation, our compatriots, the personnel of the military contingent of the Russian Federation Armed Forces deployed on the territory of Ukraine (Autonomous Republic of Crimea)’. The same day the Council granted authorization to the Russian President to deploy forces in the Ukraine. I will discuss two possibilities that could be invoked to justify Russian deployment of force despite of the general prohibition to use force under Article 2 (4) of the Charter: (i) self defence and (ii) intervention by invitation. Read the rest of this entry…

 
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Timor Leste’s request for provisional measures: ICJ orders materials seized by Australia sealed until further notice

Published on March 4, 2014        Author: 

On 3 March 2014, the International Court of Justice handed down its order on the request by Timor Leste for the indication of provisional measures in its claim against Australia relating to the seizure and detention of certain documents and data (for earlier reporting of the proceedings: see here). As predicted, Timor Leste didn’t get the seized material back, but the decision of the Court did give it most of what it wanted.

The Court considered that Timor Leste had established jurisdiction prima facie on the basis of the declarations it and Australia had made under Article 36(2) of the Court’s Statute accepting the Court’s compulsory jurisdiction, and that at least some of the rights claimed by Timor Leste were plausible. A concomitant of the principle of the sovereign equality of States was equality between States when in the process of seeking peacefully to settle their disputes, which meant that States have a right of confidentiality and of non-interference in their communications with their legal advisers when engaging in arbitration proceedings or negotiations. The Court also considered that there was a link between the rights claimed and the measures sought by Timor Leste insofar as they sought to prevent interference by Australia with Timor Leste’s communications with its legal advisers.

The major issue before the Court was, however, whether there was a risk of irreparable prejudice to Timor Leste’s rights, and whether such a threat was urgent. Australia’s argument was that there was no such risk. At the commencement of proceedings the Australian Attorney-General had stated that there had been no inspection of the documents and data seized and that they would be held under seal until the beginning of the oral hearings on Timor Leste’s request for the indication of provisional measures. At the oral hearings themselves, the Australian Solicitor-General had assured the Court that the materials would remain under seal until it rendered its decision on the request. Further, a written undertaking of the Attorney-General was presented to the Court stating that until the close of the Court’s proceedings the materials would only be inspected for purposes of national security, and that there would be no communication of them or their contents for any purpose in connection with the exploitation of resources in the Timor Sea or related negotiations, or in connection with the case before the Court or the Timor Sea Treaty Arbitration. Read the rest of this entry…

 

ICJ Opens Hearings in Croatia v. Serbia

Published on March 3, 2014        Author: 
http://pescanik.net/wp-content/uploads/2014/03/01.03.14-Danas.jpg

Cartoon by Corax, in the Danas newspaper.

Today the International Court of Justice opens a month of hearings in the pending case between Croatia and Serbia for state responsibility for genocide allegedly committed during the 1990s conflict. In the afternoon the Court will also be delivering its provisional measures order in Timor Leste v. Australia. The latter will at least to my mind be vastly more interesting than the former. Why? Because the outcome of the Croatia/Serbia case is a foregone conclusion, bearing in mind that the Court’s jurisdiction is limited solely to breaches of the Genocide Convention, and that it cannot rule on either party’s responsibility for any other wrongful acts, be it war crimes, crimes against humanity, or aggression.

In its 2007 Bosnian Genocide judgment the Court, relying on the findings of the ICTY, found that the ‘only’ instance of genocide in the otherwise far more brutal Bosnian conflict was Srebrenica, for which Serbia was not responsible, and did so by 13 votes to 2. It seems extremely unlikely that the Court will adopt a different methodological approach in the Croatian case, especially because nobody was even charged, let alone convicted, for genocide in Croatia by the ICTY. The (many) acts of ethnic cleansing committed by both sides in the Croatian conflict simply lack the requisite specific intent to physically or biologically destroy a protected group, and thus cannot reasonably be qualified as genocide. And without genocide, the Court is without jurisdiction.

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