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Home Archive for category "Palestine"

The Consequence of the UN Resolution on Israeli Settlements for the EU:  Stop Trade with Settlements

Published on April 4, 2017        Author: 

The recent UN Security Council Resolution 2334 (2016) reaffirmed that the establishment of Israeli settlements in the occupied Palestinian territory has no legal validity and that Israel’s settlement enterprise is a flagrant violation of international law. The resolution also calls upon all States “to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”. This part of the resolution is of great significance with regard to the question of trading with settlements.

While the content of the resolution might seem novel, Secretary of State John Kerry was right to remind us in his landmark speech on the Israeli-Palestinian conflict at the end of 2016 that:

this resolution simply reaffirms statements made by the Security Council on the legality of settlements over several decades. It does not break new ground”. In 1980 UN Security Council Resolution 465 had called upon all States “not to provide Israel with any assistance to be used specifically in connection with settlements in occupied territories.

Trading with settlements offers an economic lifeline that allows the settlement enterprise to survive and develop. This reality and the aforementioned UN Security Council Resolutions make a good case not to trade with settlements. But is the withholding of such settlement trade truly an obligation under international law?

In an earlier piece I argued that there is indeed such an obligation, and the lack of state compliance does not seriously shake the legal foundations of this argument. Just last year in an open letter, 40 legal experts (myself included) called upon the European Parliament, and the office of the High Representative and the Trade Commissioner to stop trade with settlements in compliance with the EU’s international legal obligations. Signatories included two former UN rapporteurs, a former President of the International Law Commission, a former judge on the ICTY, and dozens of professors in international law.

Our main argument was that the EU has the obligation to end trade with Israeli settlements based on the duties of non-recognition and non-assistance. This post will describe the legal argumentation underlying these duties. Read the rest of this entry…

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Security Council Resolution 2334 (2016) and its Legal Repercussions Revisited

Published on January 20, 2017        Author: 

Security Council 2334 (2016), adopted by the Security Council on December 23, 2016 with 14:0:1 votes, the United States abstaining, and dealing with the issue of Israel’s settlement policy in the occupied Palestinian territory, and the broader issue of the international legal status of the West Bank and East Jerusalem will, just like Security Council resolution 242 (1967) beforehand, probably become one of those seminal Security Council resolutions every international law professor will have to deal as part of his or her international law class since, apart from its immediate context and its political repercussions, it by the same token raises, and relates to, fundamental issues of international law.

While various of those issues, and namely the question of its binding effect have already been dealt with here, there still remain quite a number of open issues that require further clarification, some of which will be discussed hereinafter.

  1. Relationship of Security Council resolution 2334 (2016) with prior Security Council resolutions, in particular Security Council resolution 242 (1967)

The claim has been made that Security Council resolution 2334 (2016), as adopted, is incompatible with the content of Security Council resolution 242 (1967) (see here) given that Security Council resolution 2334 (2016) in its preambular paragraph 5, as well as in its operative paragraph 3, takes as a starting point for any final territorial arrangements between the parties to the conflict the 4 June 1967 lines, i.e. the so-called ‘Green line’, any changes to which would require a negotiated agreement between the two sides. Read the rest of this entry…

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Legal Bindingness of Security Council Resolutions Generally, and Resolution 2334 on the Israeli Settlements in Particular

Published on January 9, 2017        Author: 

As I have read commentary on the recently adopted resolution by the U.N. Security Council (Resolution 2334) addressing Israeli settlements in the occupied territories, I’ve noticed a number of commentators who appear to assume that, since this resolution was not explicitly adopted in exercise of the Council’s Chapter VII powers, therefore all of its operative provisions are per se legally non-binding. Orde Kittrie, writing over at Lawfare, seems to make this assumption clear when he writes:

“Resolution 2334 was not adopted under Chapter VII of the U.N. Charter and is not legally binding. The resolution does not create additional legal requirements on Israel, nor does the resolution require (or even explicitly encourage) U.N. member states to impose sanctions on Israel in response to Israeli settlement activity.”

I thought this would be a good opportunity to write briefly to clarify that the legal obligation for U.N. Charter states parties to comply with the decisions of the Security Council, contained in Article 24 and 25 of the Charter, is not contingent upon the Council’s acting in exercise of its Chapter VII powers. Any decision of the Security Council is legally binding upon all U.N. member states, whether or not the text of the resolution explicitly references Chapter VII.

Rather, the key question for determining whether a particular provision of a Security Council resolution is legally binding on member states (i.e. whether the provision is a “decision” of the Security Council), including the specific addressee of the resolution, is whether the Council has chosen to use words within the provision indicating its intent to create a legally binding obligation.

The International Court of Justice made these points clear in its 1971 Namibia advisory opinion, in Paragraphs 108-114. Read the rest of this entry…

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29 + 1 = 30 – The Kampala Amendment on the Crime of Aggression and the Recent Accession by Palestine

Published on June 29, 2016        Author: 

Some time ago, I wrote a contribution entitled ‘Does 19 + 11 Equal 30?: the Nitty Gritty of the Law of Treaties and the Kampala Amendment to the Rome Statute on the Crime of Aggression’ on the question as to whether those States that ratified the Rome Statute after the Kampala amendment on the crime of aggression was adopted ought to be counted towards the 30 acceptances required for the activation of Kampala amendments.

On 22 June 2016 Iceland became the 29th State to ratify the amendment, and, most recently, on June 26, 2016 Palestine ratified the said amendment (see also here for the text of the relevant depositary notification), rendering the issue just mentioned possibly moot. The 30th ratification of the Kampala amendment on the crime of aggression by Palestine now seems to open the possibility for the Assembly of States Parties, to adopt after January 1st 2017 the decision to activate the Court’s treaty-based aggression-related jurisdiction provided for in Art. 15bis para. 3 Rome Statute with all its possible repercussions for both the Court, but also for the international legal system at large.

Provided there will be no more ratifications forthcoming between now and early 2017 (which however might still be the case given the fact that the process of ratifying the Kampala amendment is ongoing in some States), any such possible ‘activation’ of the Court’s jurisdiction would however depend on the question whether the recent submission by ‘Palestine’ of its instrument of accession of the Kampala amendment ought to indeed be counted towards the necessary quorum of 30 ratifications. Read the rest of this entry…

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Kosovo’s Membership in the PCA: Some comments on Professor Zimmermann’s post

Published on April 13, 2016        Author: 

It was nice to read Professor Zimmermann’s post on the issue of membership of Palestine and Kosovo in the Permanent Court of Arbitration (PCA), as this matter should get more attention from the community of international lawyers. I have already dealt with some of the relevant legal issues in an ESIL Reflection of 11 March 2016 which Professor Milanović has kindly referred to in a comment to Professor Zimmermann’s post. I would like to use this opportunity to engage with some issues raised by Professor Zimmermann, namely: whether the Netherlands should have raised proprio motu the issue of Kosovo’s accession to the 1907 Convention; whether there has been an ‘entente ulterieure’ among the member States of the PCA; what are the powers of the PCA Administrative Council and what is the value of its decision of 4 January 2016, and; what is the way forward concerning Kosovo’s accession to the 1907 Convention.

Calling a meeting of the PCA Administrative Council proprio motu

There was no need for the Netherlands as State depositary to raise proprio motu the matter of Kosovo’s accession to the 1907 Convention within the framework of the PCA Administrative Council. Any State who had an issue with Kosovo’s accession could have called for a meeting of the Administrative Council, even at short notice, like Serbia did, albeit not being a party to the 1907 Convention. Also, it must be noted that by the time of the 4 January 2016 meeting of the PCA Administrative Council, only three out of the 116 Member States of the PCA, namely Russia, Serbia and Mexico seemed to have raised an issue concerning Kosovo’s membership in the PCA. Finally, given that more than half of the member States of the PCA recognize Kosovo as an independent State, there was no need for the Netherlands to raise this issue proprio motu.

Entente ultérieure among PCA member States

Contrary to what Professor Zimmermann claims, there has been no ‘entente ultérieure’ along the lines of Article 60 of the 1899 Convention and Article 94 of the 1907 Convention. The December 1959 agreement among the PCA member States simply authorized the Government of the Netherlands, as State depositary, to send an invitation to new members of the United Nations which were not yet a party to the PCA or whose membership position was unclear. The aim was to increase the membership of the PCA. The document to which Professor Zimmermann refers to as ‘UN support’ is a Study prepared by the Secretariat in 1968 concerning the succession of States to multilateral treaties. Read the rest of this entry…

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Palestine at the Gates of the Peace Palace: The long and windy road towards Palestinian membership in the Permanent Court of Arbitration

Published on April 5, 2016        Author: 

To Be or not to be a Party …

It took two lengthy sessions of the Administrative Council of the Permanent Court of Arbitration (‘PCA’ ) before it decided, on March 14, 2016, to confirm that the ‘State of Palestine’ is a contracting party to the 1907 Hague Convention for the Pacific Settlement of International Disputes (‘1907 Convention’) and hence also a member of the PCA. The decision was made by vote, for the first time in the long history of the PCA, with 54 states voting in favor and 25 abstentions. Notably, the parallel accession of Kosovo is still ‘under review’. This development raises a whole set of legal issues ranging from the role of the depositary in situations of contested statehood, to issues of treaty interpretation, as well as finally the legal consequences of Palestine now having become a member of the PCA.

In order to understand the legal implications of the decision, it is necessary to recall some of the most important steps that led to its adoption. Both Palestine and Kosovo, had within a short space of time (namely on 30 October 2015 (Palestine) and on 6 November 2015 (Kosovo)), submitted their accessions to the 1907 Convention. These accessions were acknowledged by the depositary, the Dutch government, on 17 November 2015 on its depositary website. The website also indicated that the said Convention would enter into force for Palestine on 29 December 2015 and for Kosovo on 5 January 2016, a move that was (somewhat prematurely, as we will see) welcomed by the Kosovo Ministry of Foreign Affairs. Upon the request of Serbia, the Administrative Council of the PCA then met on January 4, 2016, i.e. just one day before the Kosovar accession was supposed to become effective, and decided to keep the situations of Kosovo and Palestine ‘under review’, which in turn led the Depositary to ‘strike out’ the accessions of Palestine and Kosovo, with both of them then listed in the following manner:

“Parties (5 January 2016):

Party                            Ratification                  Entry into force

Kosovo                        06-11-2015 (T)           05-01-2016                

Palestine                       30-10-2015 (T)           29-12-2015 

This in turn then led to a request by a group of Arab States for yet another urgent meeting of the Administrative Council of the PCA. This meeting was supposed to deal with the status of Palestine vis-à-vis the 1907 Convention, given that by the time the above-mentioned decision of January 4, 2016 had been made to keep the situations of Kosovo and Palestine ‘under review’, Palestine had already become a contracting party of the Convention with effect from December 29, 2015. Hence, the action by the depositary had amounted, as far as Palestine was concerned, to a de facto suspension of a pre-existing treaty membership. Read the rest of this entry…

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The ICRC’s Position on a Functional Approach to Occupation

Published on November 18, 2015        Author: 

It is always interesting to observe the evolution of the (infrequent) public official positions that the International Committee of the Red Cross adopts on controversial questions of international humanitarian law. The particular position I’d like to flag is the one on a functional approach to the end of belligerent occupation. This position is clearly of particular importance to the question of whether Gaza continues to be occupied by Israel, which I’ve looked at here on the blog a couple of times before (see here and here).

Some years ago the ICRC held a series of expert meetings on various issues arising out of the law of belligerent occupation, including the beginning and end of occupation. The 2012 report on the meetings is available here. The issue of the end of occupation proved to be controversial, especially on the example of Gaza. Some degree of consensus emerged that the legal criteria for ending an occupation should be the same as for establishing the occupation, but that the evidentiary factors to be taken into account may differ. Thus, an occupation would end if the occupant lost effective control of the territory or obtained valid consent from the sovereign of the territory to its presence there.

Also in 2012, the ICRC legal advisor dealing with the occupation issue, Tristan Ferraro, published an academic article on the beginning and end of occupation in the International Review of the Red Cross. Like most pieces written by ICRC legal advisors, the article includes an initial footnote which specifies that the ‘article was written in a personal capacity and does not necessarily reflect the views of the ICRC.’ In the article Ferraro argues in favour of a functional approach to occupation, where the end to an occupation should not be seen as an all or nothing switch.

With regard to the Gaza controversy in particular, the ICRC took the position (shared by many humanitarian NGOs) that Gaza remains occupied by Israel. In 2014, writing in the Israel Law Review, the ICRC president noted (p. 179) that ‘In the view of the ICRC, Israel continues to be bound by obligations under occupation law that are commensurate with the degree to which it exercises control.’

Last week, the ICRC published its challenges to IHL report (available on Just Security), written for the forthcoming ICRC conference in December (see also Gabor Rona’s post on the report here). And here, on pp. 11-12, we have an extensive articulation of the ICRC’s official position:

Read the rest of this entry…

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Palestine v. Israel: 1:0? Palestine, Israel and FIFA: What Are the Laws of the Game? Part II

Published on June 25, 2015        Author: 

This is Part II of a two-part post. See Part I here.

Suspension of membership

A second category of FIFA membership issues related to international law relates to possible suspension of membership. Under Art. 14 FIFA Statute, it is the FIFA Congress that is responsible for suspending a member association, such suspension requiring a three-quarter majority of the Members present and eligible to vote. In case of a positive vote on such suspension, other FIFA member associations may for the duration of the suspension no longer entertain sporting contacts with the suspended member.

Although not constituting a suspension in the technical sense, it is worth noting that after World War II even after the German Football Association (DFB) had been refounded, it took until 1950 that its full FIFA membership rights were reinstated at the 1950 Bruxelles FIFA congress.

The first time suspension from FIFA stricto senso came up was in the 1950s vis-à-vis South Africa after a FIFA emergency committee had found in 1955 that the South African Football Association (SAFA), representing only white minority football clubs, did not constitute a national association within the meaning of relevant FIFA rules. It thereby somewhat foreshadowed the practice of the Credentials Committee of the United Nations General Assembly, which, as is well-known, ever since 1974 had considered that representatives of the white minority regime in South Africa could not represent South Africa for United Nations purposes. On 26 September 1961, at the annual FIFA conference, the South African football association was then formally suspended from FIFA, which suspension was however lifted in January 1963, albeit only for a short time. Soon thereafter, namely in 1964, and given the increased representation from African and Asian soccer associations within FIFA, the suspension of South Africa’s football association’s membership was re-imposed before South Africa was then, in 1976, formally expelled from FIFA. Finally, the South African association was re-admitted in July 1992 in the wake of the fundamental political changes then taking place in South Africa. This demonstrates how the policy of FIFA and its member associations was, if not influenced, by then at least parallel to, the concurrent development of modern international law related to the prohibition of racial discrimination.

Yet another development leading to the suspension of a national football association occurred during the Yugoslav crisis after the Security Council had, acting under Chapter VII, adopted resolution 757 (1992), and had thereby “[d]ecide[d] that all States shall (…) [t]ake the necessary steps to prevent the participation in sporting events on their territory of persons or groups representing the Federal Republic of Yugoslavia (Serbia and Montenegro)” (see para. 8 lit. b) of the text) Read the rest of this entry…

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Palestine v. Israel: 1:0? Palestine, Israel and FIFA: What Are the Laws of the Game? Part I

Published on June 24, 2015        Author: 

On 12 June 1015, the FIFA Executive Committee appointed former South African government minister Tokyo Sexwale to lead a monitoring committee to oversee issues related to the development of football in Palestine, and alleged interferences, by Israel, with such development. This committee was established on the basis of the decision by the 65th FIFA Congress in May 2015 after the Palestine Football Association had withdrawn its proposal to have the Israel Football Association suspended from FIFA. While this development has largely been overshadowed by the recent developments concerning alleged instances of corruption involving FIFA officials, and the ensuing announcement by the current FIFA’s President, Sepp Blatter, to resign from his position, it sheds light on the international law underpinnings of decisions made by FIFA when it comes to the status of contested territories in which a given national soccer association is based. What is more, it demonstrates how, over the years, the practice of FIFA has changed in light of developments of international law and what impact international law has when it comes to the current dispute FIFA is confronted with.

Membership in FIFA

During its early years, the FIFA Statute had simply provided that the organization consisted of “the Associations recognized by FIFA as the Associations controlling Association Football in their respective countries, provided that only one Association be recognized in each country” (see FIFA Handbook, 1st ed. 1927, p. 15; see also H. Homburg, FIFA and the ‘Chinese question’ 1954 – 1980: an Exercise of Statutes, Historical Social Research 2006, p. 69 et seq. (71)). Since 1937, FIFA had however already admitted “associations in a colony or dominion” which could then opt for directly joining FIFA whenever the “national football association of the mother country” [sic!] had signaled its consent (ibid., p. 71), thus being implicit evidence of the limited international personality of such dependent territories at the time. In the same vein, the FIFA 1937 Statutes had also provided that “[f]or countries placed under the protectorate of another country, the same principles as for dominions for colonies will be in force.” (ibid.).

As of today, Membership in FIFA is governed by its ‘Regulations Governing the Admission of Associations to FIFA’, Principle 1 of which currently provides that “[a]ny association that is seeking admission to FIFA must put forward an application that contains detailed information on its organisation, its sporting infrastructure and its territory”. Accordingly, each and every membership organization must provide data on the underlying scope ratione loci of its sphere of activities, which in case of territories, the status of which under international law is subject to dispute, might prove difficult. At the same time, Principle 3, para. 1, lit. a) thereof, dealing with the ‘Contents of application’, provides, apart from formalities, that any application for membership must include “[d]ocuments that show that the applicant represents a country in accordance with article 10 of the FIFA Statutes.” Art. 10 FIFA Statutes in turn, dealing with the admission of nationals soccer associations to FIFA, provides in its para. 1 that “[s]ubject to par. 5 and par. 6 below, only one Association shall be recognised in each Country”. For historical reasons, para 5 then provides that “[e]ach of the four British Associations [i.e. England, Scotland, Wales and Northern Ireland] is recognised as a separate Member of FIFA”, which thereby by the same token e contrario shows that these regions would otherwise not qualify as ‘countries’ for FIFA purposes. What is more is that Art. 10 para. 6 FIA Statute further provides that “[a]n Association in a region which has not yet gained independence may, with the authorisation of the Association in the Country on which it is dependent, also apply for admission to FIFA.” It is in light of these statutory provisions that football associations from ‘territories’ as divergent as Aruba, the British Virgin Islands, ‘Chinese Taipei’, Hong Kong, the Faroe Islands, as well as New Caledonia, are as of today all members of FIFA, the lack of statehood of the respective underlying ‘territory’ notwithstanding. Read the rest of this entry…

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European Court Decides that Israel Is Not Occupying Gaza

Published on June 17, 2015        Author: 

Yesterday the Grand Chamber of  the European Court of Human Rights delivered judgments in two blockbuster cases regarding the aftermath of the Nagorno-Karabakh conflict between Armenia and Azerbaijan: Chiragov and Others v. Armenia and Sargsyan v. Azerbaijan. These are very rich judgments raising many important issues, and I will be writing up more detailed comments shortly. But I first had to share one particular little nugget: the Court has (implicitly!) decided that Israel is not the occupying power in Gaza. How so, you ask?

Read the rest of this entry…

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