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Home Archive for category "Self-Determination"

Ukraine v Russia at the ICJ Hearings on Indication of Provisional Measures: Who Leads?

Published on March 16, 2017        Author: 

From the day Ukraine submitted its case against Russia at the ICJ, one could expect that the case would be extremely politicized and difficult to adjudicate. Oral proceedings on the request for provisional measures held on 6th -9th March 2017 not only demonstrated that parties disagreed on the major points of the dispute, but also revealed that both parties had adopted “alternative facts”, at times making it difficult to grasp if they actually had the same dispute in mind. Ukraine’s position is that Russia violates ICSFT by continuing to support pro-Russian separatist armed groups in eastern Ukraine that engage in the commission of terrorist acts against the civilian population. Ukraine also claims that Russia pursues “policies of cultural erasure and pervasive discrimination” against non-Russian ethnic population in Crimea (see my blog). In its counter-arguments, Russia submits that the supply of weaponry originated from the old Soviet stockpiles inherited by Ukraine as well as the retreating Ukrainian army. Although widespread reports on the human rights situation in Crimea indicate marginalization of non-Russian ethnic population, as do the hundreds of pending individual applications before the ECtHR, Russia maintains that it is fully compliant with CERD and that “the views [of international organizations] on the status of Crimea often prejudge the attitude towards the situation in Crimea itself”.

Oral proceedings provide valuable insights into Russia’s litigation strategy. Russia maintains that there is no factual or legal basis for the ICJ to adjudicate, claiming that the issues between Ukraine and Russia relate to the legality of the use of force, sovereignty, territorial integrity and self-determination and therefore go beyond the jurisdiction of the Court. Russia accused the Ukrainian government of using the Court “to stigmatize a substantial part of the Ukrainian population” in eastern Ukraine as terrorists, and Russia as a “sponsor of terrorism and persecutor”.

Prima facie jurisdiction

The ICJ has to be satisfied on a prima facie basis that its jurisdiction is well founded in order to indicate provisional measures. Read the rest of this entry…

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New EJIL:Live! Interview with Deborah Whitehall on A Rival History of Self-Determination

Published on November 11, 2016        Author: 

In the latest episode of EJIL: Live!, the Associate Editor of the European Journal of International Law, Dr. Guy Fiti Sinclair, speaks with Dr. Deborah Whitehall, Lecturer at Monash University Faculty of Law, about her article titled “A Rival History of Self-Determination”, which appears in EJIL, Volume 27, Issue 3. The article examines Rosa Luxemburg’s views on self-determination. Dr. Whitehall talks about how Luxemburg’s background and biography influenced her views, how those views differed from the orthodox liberal (Wilsonian) and Leninist positions, and what studying Luxemburg can illuminate for international lawyers today.

We welcome comments and reactions to EJIL: Live!

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Trade Agreements, EU Law, and Occupied Territories (2): The General Court Judgment in Frente Polisario v Council and the Protection of Fundamental Rights Abroad

Published on December 11, 2015        Author: 

This is a follow-up to my July post on Action for Annulment Frente Polisario v Council (Case T-512/12), a case before the General Court of the European Union (GC) in which Frente Polisario – the National Liberation Movement for Western Sahara – seeks the Annulment of the EU Council decision adopting the 2010 EU-Morocco Agreement on agricultural, processed agricultural and fisheries products. The GC delivered its judgment yesterday, both recognizing the standing of Frente Polisario and granting the (partial) annulment of the decision, with implications for EU-Morocco relations and for EU external relations law more broadly.

(1) Standing of Frente Polisario under Article 263 TFEU

As regards standing, the most striking aspect of the judgment is that the Court accepted the Frente’s entitlement to plead as a ‘moral person’, with the ‘necessary autonomy’ to challenge a decision of the EU legislator (paras. 50-53), without reference to the sui generis character of Frente Polisario or to the unique situation of Western Sahara. This would seem to open the door for other ‘autonomous entities’, even those with no claim to international legal personality, to challenge EU decisions under Article 263 TFEU.

By the same token, the Court fell short of recognizing the Frente’s legal personality under international law. Read the rest of this entry…

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Trade Agreements, EU Law, and Occupied Territories – A Report on Polisario v Council

Published on July 1, 2015        Author: 

Speaking of occupied territories, an interesting judgment should soon come from the General Court of the European Union (GC) in Action for Annulment Frente Polisario v Council (Case T-512/12), a case with fascinating international law aspects. I attended the hearing last week and think it warrants a report.

Frente Polisario is a national liberation movement (NLM) that claims sovereignty for Western Sahara – the area between Morocco and Mauritania that has been on the UN list of non-self-governing territories since 1963, and in 1975 was the subject of a fairly inconclusive ICJ Opinion. The Frente sees Morocco as an occupying power, and challenges the EU Council decision approving the 2010 EU-Morocco Agreement on agricultural, processed agricultural and fisheries products. Given that the 2010 Agreement is a development of the 2000 EU-Morocco Association Agreement, the decision will have significant implications for the application of the latter agreement, and may thwart negotiations of the so-called “Deep and Comprehensive Free Trade Agreement”.

These agreements are all silent on the question of what constitutes Moroccan territory. However, Frente Polisario claims, de facto Morocco has been applying the 2000 Association Agreement to Western Sahara. If applied the same way, the 2010 Agreement will facilitate the export to the EU of agricultural products grown in Sahrawi land and fish caught in Sahrawi waters. If Morocco’s control of Western Sahara is illegitimate, this would violate the right of the Sahrawi people to self-determination and to permanent sovereignty over their natural resources.

The case raises a number of interesting questions:

Standing of NLMs

Read the rest of this entry…

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Mauritius v. UK: Chagos Marine Protected Area Unlawful

Published on April 17, 2015        Author: 

On 1 April 2010, the UK declared the world’s largest Marine Protected Area (MPA) around the Chagos Archipelago. The Archipelago is one of 14 remaining British overseas territories, administered by the UK as the British Indian Ocean Territory (BIOT). In contrast to other British overseas territories such as the Falklands/Malvinas and Gibraltar, BIOT is not on the UN list of non-self-governing territories. There is currently no permanent local population because the UK cleared the archipelago of the Chagossians between 1968 and 1973.

Mauritius and the UK both claim sovereignty over the Chagos Archipelago. The largest island of the Chagos Archipelago – Diego Garcia – has since the late 1960s housed the most important US military base in the Indian Ocean. The UK leased the island for defense purposes to the US in 1966, prior to Mauritian independence in 1968. The 50-year lease of Diego Garcia is due to be renewed in 2016.

In the Matter of the Chagos Marine Protected Area Arbitration (Mauritius v. UK), a tribunal constituted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS) issued its award on 18 March 2015. The tribunal found that the UK’s declaration of the MPA disregarded Mauritius’ rights, rendering the MPA unlawful. The award raises the prospect that the renewal of the lease in 2016 will require the UK to meaningfully consult Mauritius.

Mauritius made four submissions to the tribunal:

First: The UK was not entitled to declare a MPA because it was not a coastal state under UNCLOS (the ‘sovereignty claim’, according to the UK)

Second: The UK was prevented from unilaterally declaring the MPA due to Mauritius’ rights as a coastal state under UNCLOS

Third: The UK may not take any steps to prevent the Commission on the Limits of the Continental Shelf from making recommendations to Mauritius in respect of any full submission to the Commission that Mauritius may make

Fourth: The UK’s declaration of the MPA was incompatible with substantive and procedural obligations under UNCLOS

The jurisdictional part of the award is centered on whether the four submissions concern the ‘interpretation or application of UNCLOS’ under Article 288 UNCLOS. This blog entry concentrates on the merits as regards the Fourth Submission. Read the rest of this entry…

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The Airstrikes against Islamic State in Iraq and the Alleged Prohibition on Military Assistance to Governments in Civil Wars

Published on February 2, 2015        Author: 

Since the initiation of the US-led airstrikes against Islamic State (or ISIL) forces in Iraq and Syria in August and September of last year, the legality of the strikes in Syria has been the subject of much discussion. Much of the focus has been on whether collective self‑defence – of Iraq – allows the use of force against non-State actors in foreign territory (Syria), where the territorial State (Syria) is ‘unable or unwilling’ to stop the attacks itself. However, the legality of airstrikes occurring on Iraqi territory does not appear to have occasioned any discussion at all (although see this previous  post on the debate in the British House of Commons on authorising the use of force in Iraq). The presence of consent by the internationally recognised government of Iraq  to the airstrikes (see here) seems to make legality of foreign military action against Islamic State  under the jus ad bellum so obvious as not to require much commentary. However, a closer look at the scholarship on consent to the use of force reveals that the legality of what has variously been called ‘intervention by invitation’ or ‘military assistance on request’ has traditionally been more contentious than this simple statement would suggest. As discussed below, many scholars, and indeed some States, have suggested that there is a general prohibition on military assistance to governments in a situation of civil war or internal rebellion. This suggestion was particularly prominent in the Cold War era and seemed to represent an attempt to limit indirect uses of force by the superpowers. The rule is said to be derived from the prohibition of intervention in the internal affairs of other states, as well as from the principle of self-determination. The argument made by those in support of the rule is that intervention even with the consent of the government denies the people the right to govern their own affairs and to determine their political future. In short, on this view international law guarantees the right to rebel against the government. Others have doubted that a rule prohibiting assistance to governments in civil wars ever did emerge. This post seeks to demonstrate that recent state practice relating to the use of force in Iraq against Islamic State suggests that the evidence of opinio juris in relation to that rule is at present quite weak.

Support for a Rule Prohibiting Military Assistance to Governments in Civil Wars

According to a 1975 resolution of the Institut de Droit International on “The Principle of Non-Intervention in Civil Wars”, “[t]hird States shall refrain from giving assistance to parties to a civil war which is being fought in the territory of another State.” The resolution defines a “civil war” as a non-international armed conflict: a) between the established government of a State and one or more insurgent movements whose aim is to overthrow the government or the political, economic or social order of the State, or to achieve secession or self-government for any part of the State, or b) between two or more groups contending for control of the State in the absence of an established government. Read the rest of this entry…

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Is Israel’s Use of Force in Gaza Covered by the Jus Ad Bellum?

Published on August 22, 2014        Author: 

On any account, the conflict in Gaza is depressing. It is clear that Hamas’ firing of rockets which are incapable of distinguishing between military and civilian targets is a violation of international humanitarian law. However, the question whether Israel’s actions in Gaza, which have reportedly resulted in the death of over 2000 people, comply with international law generates much more heated debate. As Professor Geir Ulfstein has pointed out, in a recent post on Just Security, in discussions about whether Israel has violated international law, “the focus is only on violations of international humanitarian law (jus in bello), not on breaches of restrictions following from the right of self-defence (jus ad bellum).” An example is this post by Mark Ellis, Executive Director of the International Bar Association on Huffington Post. One of the key questions that arise in connection with Israel’s actions in Gaza is whether its actions are proportionate. In a later post I will focus on proportionality and what it might mean in this conflict. Suffice it to say for now that as Geir Ulfstein notes (and as pointed out by Marko in this post) the “requirements of proportionality are different in international humanitarian law (IHL) and as a restriction on the right of self defence”. One may also note that even if every individual acts of targeting by a party to a conflict is proportionate under IHL, the overall campaign might still be disproportionate under the law relating to self defence in the jus ad bellum. Prof Ulfstein ends his post by saying that “the restrictions on self-defence for Israel’s military operations should receive more attention”. This posts responds to that call.

In this post, I wish to address the question whether Israel is bound by the law relating to self-defence in the action it is taking in Gaza. Put differently, the question is whether the international law limitations on the right of self-defence apply to Israeli action in Gaza? As Israel’s actions in Gaza are taken in response to Hamas’ actions and Israel claims to be acting in self defence, our intuitions might suggest that we ought to assess whether Israel’s actions comply with the international law limits on self defence. In particular, one may ask whether Israel’s actions are proportionate in the jus ad bellum sense.

Despite first impressions, it is not at all obvious that the jus ad bellum applies to Israel’s use of force in Gaza. When one scratches beneath the surface, the question appears more complicated. Read the rest of this entry…

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Crimea: Does “The West“ Now Pay the Price for Kosovo?

Published on April 22, 2014        Author: 

There is a lingering sentiment on this blog (see the posts by Nico Krisch and Christian Marxsen) that “the Kosovo issue” has facilitated the blatant violations of international law recently committed by Russia with regard to Crimea (notably the unlawful annexation of that territory), and that “the West’s” behaviour in the Kosovo context now prevents clear condemnations and robust reactions towards these violations. That view has also been espoused elsewhere (see, e.g., Marcelo Kohen, “L’ Ukraine et le respect du droit international”, Le Temps, 13 March 2014 and Bruno Simma, “The West is hypocritical” (interview), Der Spiegel, 7 April 2014). The basic idea is that “the West” now pays the price for Kosovo, and that such a situation was predictable (and has been predicted) by those who now deplore it, and allows them to think (or even to say): “Well, we warned you from the beginning on, and this is now what comes out of it … so we were right”.

In this post, I would like to investigate the soundness of this position. We first have to ask what is meant by “the Kovoso issue”. Actually “Kosovo” refers to two events: not only to the sponsoring of Kosovo’s independence in 2008, but also to the possible unlawfulness of NATO’s military intervention of 1999. Both events were politically linked, and they concerned three different core norms of international law: the prohibition on the use of force, territorial integrity/inviolability of boundaries, and the self-determination of peoples.

In the Crimea crisis, all three norms are again at stake: Russia both relies on its right or even responsibility to intervene with military means to prevent human rights abuses committed against ethnic Russians and Russian citizens (humanitarian type /R2P-type intervention) and on the Crimean (or even Eastern Ukrainian) right to secession based on the right to self-determination whose exercise in Crimea led to a disruption of Ukrainian territorial integrity.

Did Russia abuse these norms? Read the rest of this entry…

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Sense and Nonsense of Territorial Referendums in Ukraine, and Why the 16 March Referendum in Crimea Does Not Justify Crimea’s Alteration of Territorial Status under International Law

Published on April 16, 2014        Author: 

Referendum in Crimea

Yesterday, on 15 April 2014, Ukrainian interim president Turtschinov considered to hold, simultaneously with the presidential elections, a referendum on regional competences in Ukraine. On 8 April 2014, separatists in the Ukrainian region of Donetsk proclaimed that they would hold a referendum on the independence of that Eastern region of Ukraine. Some days before, representatives of the Crimean Tatars announced that they sought to hold a referendum on their political autonomy within Crimea.

On 16 March 2014, the population of Crimea had overwhelmingly voted in favour of joining the Russian Federation. The population was asked to choose between the following alternative: “1) Are you in favour of Crimea joining the Russian Federation as a subject of the Russian Federation?” or “2) Are you in favour of re-establishing the 1992 constitution of the Republic of Crimea and Crimea’s status as a part of Ukraine?” The maintenance of the territorial and status quo was not given as an option in that referendum, and no international observers were admitted. With a voter turnout of 83.1 %, 93 % answered with a “Yes” to the second question, and thus pronounced themselves in favour of joining the Russian Federation.

The spokespersons of the Tatars now declare that their ethnic group had boycotted the referendum of 16 March, and assert that the majority of Tatars would have preferred to stay within Ukraine. Tatars currently form about 10 percent of the Crimean population. Probably hundreds of thousands of Tatars were killed, starved, and were deported from the 1920s to the 1940s under Soviet policy. The new government of Crimea rejects the idea of a politically autonomous territory for the Crimean Tatars but holds that the Tatars can only claim “cultural autonomy”.

The 16 March referendum, and announced further territorial referendums in Ukraine, place in the limelight the problématique of this legal institution. Are not the outcomes of referendums in ethnically mixed units most often ethnically pre-determined? And does not the resort to a referendum lead to ever smaller subgroups which again seek to detach themselves from a larger one? After all, the Ukrainian people, including the Crimean population, had some 20 years ago voted in favour of independence from the Soviet Union. (See on the 1991 referendum in Ukraine Anne Peters, Das Gebietsreferendum im Völkerrecht (Baden-Baden: Nomos 1995), 184-88; specifically on previous Crimean referendums ibid., 190-91, 211-15). That Ukrainian referendum of 1 December 1991 had been at the time widely appreciated as having rung the death knell for the dissolution of the USSR one week later, when the Agreement Establishing the Commonwealth of Independent States of Minsk of 8 December 1991 declared that the Soviet Union had ceased to exist. But even before that date, and later, Crimean politicians had several times (in 1991, 1992, 1994, and so on) planned and sometimes held “polls” on a special status of Crimea.

This post postulates that, as a matter of international customary law, and as a matter of legal consistency and fairness, a free territorial referendum is emerging as a procedural conditio sine qua for any territorial re-apportionment. However, the 16 March referendum was not free and fair, and could not form a basis for the alteration of Crimea’s territorial status. Read the rest of this entry…

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Crimea and (the Lack of) Continuity in Russian Approaches to International Law

Published on March 28, 2014        Author: 

On 27 March 2014, the UN General Assembly adopted a resolution calling upon states not to recognize changes in status quo of Crimea region. 100 states voted in favor, 11 were against and 58 abstained. In terms of international law, Ukraine’s continued sovereignty over Crimea is supported by the absolute majority of states, even though Crimea is now de facto annexed by the Russian Federation. In this post I want to make two points: one concerning the Russian scholarship on international law and the second on the history of Russia’s treaty practice regarding Crimea.

The first point is that the annexation of Crimea by the Russian Federation goes against pretty much everything that has been written in Russia over the last twenty years (plus during the Soviet period) on the legality of the use of military force and the right or peoples to self-determination in international law in non-colonial contexts. Suffice it to say that the Concept of the Foreign Policy of the Russian Federation, approved by President Putin on 12 February 2013, emphatically criticizes and condemns the use of military force outside the framework of the UN Charter.

My comment focuses on the Russian scholarship of international law because its most prominent representatives have until now argued that, in international law, the principle of state sovereignty clearly trumps the right of peoples to self-determination. (See e.g. I.I. Lukashuk, Mezhdunarodnoe pravo. Obshaya chast’ (2001), 280, 300; V.I. Kuznetsov, B.R. Tuzmukhamedov (eds) Mezhdunarodnoe pravo, 2nd ed. (2007), 215; G.G. Shinkaretskaya, ‘Polozhenie fakticheski sushestvuyushikh rezhimov (nepriznannykh gosudarstv)’, in: A.G. Lisitsyn-Svetlanov (ed.) Novye vyzovy i mezhdunarodnoe pravo (2010), 168-172; A.Ya. Kapustin (ed.) Mezhdunarodnoe pravo (2008), 105; A.A. Kovalev, S.v. Chernichenko (eds) Mezhdunarodnoe pravo, 3rd ed. (2008), 58.)

Read the rest of this entry…

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