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Excusing Illegal Use of Force: From Illegal but Legitimate to Legal Because it is Legitimate?

Published on April 14, 2017        Author: 

The US missile strikes on Syria have, inter alia, revived the debates on humanitarian intervention, the argument of ‘illegal but legitimate’ and more generally on the exceptions to the prohibition of the use of force. For some examples see here, here and here. Some contributors have pointed out that the US did not even try to bring this action within the ambit of the Charter rules on the use of force, and that the absence of Charter-based arguments may even be a good thing as it preserves the strength of Article 2(4). Others have cautioned that the strength of the rules on the use of force might nevertheless be undermined, as singular ‘exceptional’ cases result in a pattern.

This post argues that, analogous to the concept of defences in municipal legal systems, international law on the use of force should adopt a systematic distinction between justifications and excuses. As responses to the US missile attack in Syria demonstrate, the two concepts are conflated. The result is that legality is often assessed on the basis of excuses. If the trend of conflation continues, the controversial doctrine of ‘illegal but legitimate’ will move toward an even more controversial doctrine of ‘legal because it is legitimate’.

Justifications are legally-warranted exceptions to the general prohibition. As such, they are a way out of illegality. Excuses, on the other hand, are not a way out of illegality, but act as mitigating circumstances that preclude responsibility for an otherwise illegal conduct. Under some circumstances, breaching the law may indeed be the choice of a lesser evil. As noted by Vaughan Lowe in his 1999 EJIL article, a legal system may wish to provide a defence for emergency drivers who breach the speed limit on the way to hospital. There are two ways of achieving this goal. One way is to give them an explicit authorization to breach the speed limit. The other one, however, does not authorize speeding, but rather ensures that emergency drivers are not prosecuted upon such a breach of traffic rules. The first (justification) relaxes the norm itself and may well result in wider disobeying of the speed limit than the second, which merely provides for a carefully weighed excuse of culpability where the norm was doubtlessly breached. In other words, it is better if the general norm is strong and ‘catches’ more violators whose excuses are then considered on a case-by-case basis. I elaborate on these issues in more details in this 2015 concept paper. In the present context, might the ‘emergency driver logic’ apply to the US strike in Syria? Even if it did, it would not make this action legal. Possibly, the US could only escape responsibility for this internationally wrongful act.  Read the rest of this entry…


Crimea’s Referendum and Secession: Why it Resembles Northern Cyprus More than Kosovo

Published on March 20, 2014        Author: 

On 16 March 2014, Crimea held a referendum on its future legal status. Reportedly, the choice to join Russia was supported by an overwhelming 95.5 per cent of all votes cast, with the turnout of 83 per cent. A day earlier, Russia vetoed a draft Security Council resolution which sought to declare the referendum as ‘having no legal validity’ and urge the international community not to recognise its results. The draft resolution was otherwise supported by 13 members of the Security Council, with China abstaining. On 17 March 2014, the Crimean parliament declared independence and applied to join Russia.  This contribution explains that while the referendum itself was not illegal in international law, the shift of territorial sovereignty would be illegal. Moreover, in the legal circumstances underlying the situation in Crimea, even the declaration of independence violated international law. As a result, the obligation to withhold recognition of the effective situation is applicable under general international law. No Chapter VII Resolution is required. This is not because international law would see territorial integrity of states as an absolute norm, but because the effective situation was created by Russia’s use or threat of force. Although parallels have been drawn to Kosovo (see the discussion in Christian Marxsen’s post) and even Scotland, in terms of international law Northern Cyprus would be a more accurate comparison.

Secession and neutrality of international law

Groups seeking independence usually present self-determination as an absolute entitlement. Conversely, states countering secession usually present territorial integrity as an absolute entitlement of states. Neither camp is right. As follows from the General Assembly’s Declaration on Principles of International Law (GA Res 2625), the Quebec case (Supreme Court of Canada) and partly also from the Kosovo Advisory Opinion (ICJ), international law is actually neutral on the question of unilateral secession. This means that unilateral secession is neither prohibited nor an entitlement. Furthermore, for the purposes of international law, it does not matter whether or not secession is explicitly prohibited under domestic law. As noted by the Supreme Court of Canada in the Quebec case, an entity may declare independence extra-constitutionally and yet nevertheless become independent if other states are willing to recognise it (the Quebec case, para 155). This further confirms that unilateral secession unto itself does not trigger an obligation to withhold recognition. [I explain this further here].Yet states are very rarely willing to grant recognition on a widespread basis to entities seeking independence unilaterally. By holding a referendum and declaring independence, such an entity in most circumstances does something that remains legally ineffective, yet not internationally wrongful. The burden of changing the territorial status quo lies on the secession-seeking entity and this exercise is very rarely successful if the parent state does not agree. However, a declaration of independence may be given effectiveness through foreign military assistance. This is where neutrality of international law ends. International law is neutral only with respect to a declaration’s unilateral character, but not in general, where territorial illegality is attached to the situation.

When are declarations of independence illegal?

Territorial illegality arises under a serious breach of certain fundamental norms of international law, in particular jus cogens. Read the rest of this entry…


The Importance of Legal Criteria for Statehood: A Rejoinder to Dapo Akande

Published on August 9, 2013        Author: 

I would like to thank Dapo for his response to a particular claim I make on the statehood criteria. It is a twofold claim that I make in the book. First, the emergence or non-emergence of states cannot be explained by the Montevideo criteria. Secondly, the Montevideo criteria should not be seen as a rule of customary international law. I sense that Dapo could partly and qualifiedly agree with the first part of the claim. He certainly disagrees with the second part.

Dapo’s proposition essentially preserves the centrality of Montevideo by accommodating the process of state creation within these criteria. In so doing the proposition overcomes the deficiencies of Montevideo and the solution indeed looks very appealing at first sight. But it is problematic, as it makes the relationship between state creation and statehood criteria circular.

Territorial integrity and Montevideo

In a world where virtually every territory is a state territory and thus subject to a legitimate claim to territorial integrity, this claim can only be overcome by a political process which creates a new legal status. I think that Dapo and I agree up to this point. We diverge on the question of the place of this process and its relationship to the statehood criteria. Dapo accommodates the process within Montevideo, I place it outside; Dapo subordinates the process to Montevideo, I subordinate Montevideo to the process.

Dapo’s explanation reconciles the traditional Montevideo-centric approach in the law of statehood with its main criticism – the inadequacy of the criteria. By incorporating the process of state creation within Montevideo, the criteria are no longer an inadequate static checklist and can actually answer difficult questions, such as why Somaliland is not a state. By holding that the fourth criterion may compensate for deficiency in meeting others (meaning that some Montevideo criteria may be more important than others), it can even be explained why Bosnia was a state in 1992. The trick that makes Montevideo work is to bring what I treat as extra-Montevideo within the ambit of Montevideo. Read the rest of this entry…

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Democratic Statehood in International Law: A Rejoinder to Jean d’Aspremont and Brad Roth

Published on August 9, 2013        Author: 

I am pleased that Professors Jean d’Aspremont and Brad Roth both seem to approve of my proceduralised approach to state making which, inter alia, degrades the Montevideo criteria from customary law to a mere under-labourer of a political process. Their criticism is politely measured but if I had to identify one core word to capture the gist of their remarks, that word would be ‘objectively’, albeit in two different meanings.

First, there is the issue of the theoretical underpinnings of my work and the question of whether statehood can be objectivised. Do I indeed take a schizophrenic position on that? Secondly, synthesising international practice requires analysing and interpreting history. Whose story should an international lawyer choose to tell? In the context of the present debate, was the Badinter Commission interpreting, misinterpreting or developing the law?

The nature of the state

If I try to eliminate Prof d’Aspremont’s proverbial politeness, in blunt language he is telling me: “You are crusading against objectivism in the law of statehood, yet you are an objectivist yourself, albeit you get there only after a detour.” D’Aspremont is right, while claiming that states do not emerge objectively and self-evidently, it underlies my writing that at some point statehood is achieved and then it becomes objectivised vis-à-vis the international community as a whole. In my defence, let me say something on that ‘detour’.

My anti-objectivism is limited to the statehood criteria; it does not extend to the statehood status. I use that ‘detour’ to separate the two. States do not emerge simply by meeting the statehood criteria, be it Montevideo or however extended addition. D’Aspremont correctly notes that I proceduralise the law of statehood. It is this (internationalised) process which leads to a new legal status. There are no objective criteria for statehood in international law that could automatically make a state. Read the rest of this entry…

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Democratic Statehood in International Law

Published on August 6, 2013        Author: 

JureVidmar_profile1In the book Democratic Statehood in International Law, I develop an argument that state creation is a political process of overcoming a competing claim to territorial integrity. The emergence of a new state is not an automatic or factual occurrence upon meeting the statehood criteria. The process requires some democratic procedures to be followed. It often also runs in parallel with an internationalised attempt at imposition of a democratic political system.

The post-Cold War practice and the effects of the right of self-determination have led some writers to proclaim that under contemporary international law a newly-emerged state needs to be democratic. Others have rejected this view by holding that democracy has not bBook. Democratic Statehood. Jure Vidmarecome a statehood criterion. My argument is that the first statement is exaggerated and the second one wrongly-focused. Non-democratic states can emerge in contemporary international law, but so can states that do not meet the statehood criteria.

In the process of state creation, the adoption of democratic institutions is equally as relevant or irrelevant as ‘Montevideo’. Considerations for democracy may impact state practice in relation to claims for independence but do not have any direct legal effects. The same can be said of the Montevideo criteria. Via the right of self-determination, state-creation nevertheless does require a democratic process. This is a requirement for independence referenda, not a requirement for a particular political system. The right of self-determination should not be conflated with democracy.

 State creation as a political process of overcoming a counterclaim to territorial integrity

 Acquiring statehood is not an international legal entitlement. Existing states are protected by the principle of territorial integrity. While this principle does not generate an absolute prohibition of secession, the consequence of its operation is that states cannot emerge automatically, as a matter of objective fact. States can only emerge in the legal circumstances where the claim to territorial integrity is either overcome or becomes inapplicable. Read the rest of this entry…


EU–UK–Scotland: How Two Referenda Created a Complicated Love Triangle

Published on February 18, 2013        Author: 

Jure Vidmar is Leverhulme Early Career Fellow in the Oxford Law Faculty, and Research Fellow, St Johns College, University of Oxford. His book Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice will be published in March 2013.

As has already been noted on this blog (here and here) Professors Alan Boyle and James Crawford recently drafted an opinion on the international legal consequences of the Scottish referendum on independence. The Boyle/Crawford argumentation is very straightforward and, in my view, a conventional and uncontroversial account of the applicable international legal framework. However, I see one potential problem which was not (or could not) be considered in the Opinion drafted in December last year. In January 2013, Prime Minister Cameron announced another referendum; this one would be on the UK exiting the EU. Which UK would exit – the one with or the one without Scotland?

It is true that this referendum is not a legal reality at this stage and is merely a political pledge to be fulfilled should the Conservatives win at general elections. But with this possibility on the table, it is not entirely possible to separate the two referenda. Given the special nature of the EU, it is arguable that Scots now no longer know for what kind of an arrangement they are voting if they choose to stay in the UK. Or to put it differently, Scots do not know whether a vote for the UK is also vote to stay in the EU. And this may well be problematic under international law which requires that terms of a referendum on independence should be clear and unambiguous.

What if you are a Scottish voter who does not care about the UK but would vote against independence mainly (or only) because you do not want Scotland to be out of the EU and you do not want to lose your EU citizenship? How do you vote? If you support the UK, you might be out of the EU in the very near future anyway – because of the other referendum. What is more, if the UK eventually leaves the EU, it is quite likely that a vote for Scottish independence would have been a vote for the EU. Indeed, it is more likely that Scotland would join in due course than that the UK, if it left, would re-enter any time soon. So, if you are a Scottish voter and motivated by Scotland staying in the EU; how should you vote in 2014? Assuming you are not a fortune teller and cannot predict what would happen in 2017, you do not know. In 2014, Scots might be asked to go off the deep end without being assured that there is water in the pool. This is precisely what the clarity standards regarding independence referenda try to prevent. Read the rest of this entry…

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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…