Last month, Joseph Weiler’s post on Catalonian independence and the European Union triggered a lively discussion here on EJIL!Talk (including Nico Krisch’s reply). Yesterday’s publication by the British government of a legal opinion by Alan Boyle of the University of Edinburgh and James Crawford of the University of Cambridge, entitled ‘Referendum on the Independence of Scotland: International Law Aspects’ has already received extensive news coverage (eg BBC, New York Times, Guardian, FT) and was labelled as ‘incredibly arrogant’ by the Scottish deputy first minister. In a riposte, the Scottish government accelerated publication of a report on the macroeconomic framework in case of Scotland’s independence. A committee composed of economists, including Nobel prize winners Joseph Stiglitz of Columbia University and Sir James Mirrlees of the University of Cambridge, suggested that if the Scottish people voted for independence in 2014, a formal currency union between UK and Scotland, with a 10 percent Scottish stake in the Bank of England, would be the most likely outcome. The currency that Scotland would use in the event of independence and Scottish membership in international organisations, most importantly the European Union, have been focal points of the discussion in the lead-up to the referendum.
In the First Part of this comment we have seen that reference to article 51 of the UN Chapter in order to justify Operation Serval, is problematic. We will now discuss the two other legal arguments used by France.
Consent of the Malian Authorities
The argument according to which the authorities of Mali had the sovereign right to request external military intervention against the Islamist rebels and that France had the right to intervene on the basis of this invitation seems a priori powerful. Indeed, in her comments to the press just before the start of Operation Serval, Susan Rice, the U.S. Permanent Representative to the United Nations, argued that any State “can support and encourage the Malian government’s sovereign request for assistance from friends and partners in the region and beyond’ and that “there was clear-cut consensus about the gravity of the situation and the right of the Malian authorities to seek what assistance they can receive”.
This should nonetheless not lead to the conclusion that third States have an unlimited right to military intervention on the basis of the request or the consent of the legitimate authorities of the State where the intervention takes place. External intervention by invitation should be deemed in principle unlawful when the objective of this intervention is to settle an exclusively internal political strife in favor of the established government which launched the invitation (see T. Christakis & K. Bannelier, “Volenti non fit injuria? Les effets du consentement à l’intervention militaire”, Annuaire Français de Droit International, 2004, at 102-138). Such a military intervention will not be in principle in violation of art. 2(4) of the UN Charter, which is inoperative in such a situation because there is no use of force of one State against another (see art. 2 §4: “in their international relations”) but two States cooperating together. Such a military intervention could however constitute a violation of the principles of non-intervention and non-interference in domestic affairs and the principle of self-determination of peoples. The resolutions adopted within the UN General Assembly and State practice in this field confirm this conclusion which was also shared by authors such as M. Bennouna, L. Doswald-Beck or by the Institute of International Law in its 1975 Wiesbaden Resolution on The Principle of Non-Intervention in Civil Wars (esp. art. 2) or the 2011 Rhodes Resolution on Military Assistance on Request. ” Read the rest of this entry…
Nico Krisch (Hertie School of Governance, Berlin & IBEI, Barcelona)
Joseph Weiler’s polemic on Catalan independence has certainly stirred up debate (see the comments on the piece), which is always helpful. But as much as I admire much of Weiler’s academic work, I find this intervention heavily misguided in substance, in part because of a misunderstanding of the reasons behind the Catalan drive, in part because of a misreading of the nature of independence claims in general. I write this having spent a significant part of the last decade in Barcelona, with a growing appreciation for the concerns of Catalans and of sub-state nationalism in general, which has certainly toned down my earlier, perhaps rather naïve cosmopolitanism that had little time for nations and borders.
Weiler laments a return of Catalans to ‘an early 20th-century post-World War I mentality, when the notion that a single state could encompass more than one nationality seemed impossible’, and he finds it ‘laughable and impossible to take seriously Catalan arguments for independence’ when they have a statute of autonomy. He thinks that all Catalans could possibly complain about dates back to the Franco period and before, and that today they should leave this behind, drop talk of independence and work out their differences with the rest of Spain. But the latter is precisely what they have tried for several decades, and with limited success. Spain’s 1978 constitution is an awkward compromise, born out of a transition from dictatorship. It stops well short of establishing a federal state and, despite Spain’s enormous cultural diversity, has many centralist elements. Catalans are a structural minority in that setting – and less protected than the Basques who achieved a more favourable position in and after the constitution. While it is true that they don’t face persecution or any kind of grave human rights violations, discrimination can also take more subtle forms and result in systematic disadvantages when it comes to appointments to public office, investment in infrastructure or the distribution of resources in general. And even achievements in linguistic rights are called into question when the Spanish government can declare – as it has recently done – that it intends to ‘hispanicise’ Catalan school children.
All this does not reach the threshold for remedial secession under international law. But is international law, state-centric and state-made as it is, a good guide for our normative approach here? Probably not. Read the rest of this entry…
This post is part of an editorial that appears in the issue of EJIL (Vol. 23/4) that is published today
‘Vive le Québec libre!’ Who can forget de Gaulle’s mischievous and irresponsible speech in July 1967 during his visit to that hapless province, a catchphrase which has become since then the eternal rallying cry for Western tribalism. And now, joining the ever lengthening queue is Catalonia – the subtext of whose recently called elections is, once again, ‘independence’. The Basques are lurking in the background and the Scots are not even lurking but quietly forging ahead. And there is ‘Padania’ led by the awful Lega Nord in Italy, and the list does not end there.
Feeding this frenzy for secession and independence in Europe is the premise that all these new states will somehow find a safe haven as Member States of the European Union. Absent that assumption, appetite for independence would be significantly muted, the rough seas of ‘going it alone’ far more threatening. The Canadian Supreme Court, in its careful and meticulous decision on Quebec the reasoning of which remains valid today, clearly showed that none of these cases enjoy a right of secession under public international law, since all of them enjoy extensive individual and collective liberties enabling the full vindication of their national and/or cultural identity within their respective states.
But the issue is not one of rights, of law. It is simply ethically demoralizing to see the likes of Catalonia reverting to an early 20th-century post-World War I mentality, when the notion that a single state could encompass more than one nationality seemed impossible – hence the special treaties on minorities which abounded in the break-up of the Ottoman and the Austro-Hungarian Empires. These arrangements were well-intentioned but lacking in political imagination and eventually, let us not hide the ugly facts, feeding and leading to that poisonous logic of national purity and ethnic cleansing. Make no mistake, I am not suggesting for one minute that anyone in Catalonia is an ethnic cleanser. But I am suggesting that the ‘go it alone’ mentality is associated with that kind of mindset. Read the rest of this entry…
Self Determination and the Syrian Conflict – Recognition of Syrian Opposition as Sole Legitimate Representative of the Syrian People: What Does this Mean and What Implications Does it Have?
A couple of weeks ago, the United Kingdom recognised the umbrella Syrian opposition organization, National Coalition for Syrian Revolutionary and Opposition Forces (NCS) as the “sole legitimate representative of the Syrian people”. In so doing, the UK was following a number of other States that have also recognised NCS as the legitimate or sole legitimate representative of the Syrian people. It is reported that the US government will accord the same recognition, perhaps next week. In the summer of 2011, many States also recognised the Libyan National Transitional Council as the “[sole] legitimate representative of the Libyan people” prior to later recognising the Libyan NTC as the government of Libya (see previous EJIL:Talk! Post here and an example here). The question that arises with this recognition is: what does it mean to recognise an entity as the legitimate representative of the Syrian [or Libyan] people? Also, what are the implications of such recognition? Does this type of recognition operate only in the world of international politics, or does it have some legal basis? More importantly, does this form of recognition have legal consequences?
In particular, I wish to examine in this post whether the recognition of NCS as legitimate representative of the Syrian people should be taken to mean that Syria is regarded as a case where the Syrian people are exercising their right of self-determination, through the NCS. If that is so, what consequences might this have for actions that foreign States may take and what assistance, if any, might this entitle the Syrian opposition to? Read the rest of this entry…
In June, I looked at the longstanding sovereignty dispute over the Falklands Islands (Malvinas) on the occasion of the 30-year anniversary of the 1982 war. I revisit this topic today to examine the question of investor protection in areas where sovereignty is disputed, taking the Falklands (Malvinas) as an example. The promise of an oil boom in the South Atlantic has prompted several companies listed in London, including Falkland Oil and Gas, Borders and Southern Petroleum, Rockhopper, Desire Petroleum and Argos Resources, to survey the area. They obtained exploration licenses from the Falklands administration in 2011, which drew strong criticism from Argentina. Shareholders in these inherently risky ventures may wonder whether they have any legal protections should the sovereignty dispute intensify.
The sovereignty dispute adds an additional layer of uncertainty for the companies engaged in exploratory drilling and their shareholders, aside from the uncertainty on how much oil, if any, will ultimately be discovered. The listing prospectuses of the companies concerned all mention the pending sovereignty dispute as a risk factor, but likely underplayed its importance. For example, the Falkland Oil and Gas Prospectus contains the following disclaimer:
There may be other unforeseen matters such as disputes over borders. Investors will be aware that the Falkland Islands were, in 1982, the subject of hostilities between the United Kingdom and Argentina.
The Argentine Government has not relinquished all its claims in relation to the Falkland Islands. However, the position of the UK and Falkland Islands Governments is that the United Kingdom has no doubt about its sovereignty over the Falkland Islands, South Georgia and the South Sandwich Islands and the surrounding maritime areas. Her Majesty’s Government remains fully committed to the offshore prospecting policy pursued by the Falkland Islands Government, as laid out in the Offshore Petroleum (Licensing) Regulations 2000. This policy is entirely consistent with Her Majesty’s sovereign rights over the Falkland Islands.
Do investments in the territorial sea of the Falklands (Malvinas) fall under the territorial scope of application of the UK’s BIT (or, for that matter, under the scope of Argentina’s BITs)? Read the rest of this entry…
June 14 2012 marked the 30th anniversary of the end of the 1982 Falklands (Malvinas) War. After a decade of relative calm and increased technical cooperation on the Falklands (Malvinas), diplomatic tensions between Argentina and the UK have flared up in the lead-up to this anniversary. A concerted diplomatic push by Argentina has returned the sovereignty dispute over the Falklands (Malvinas) to the top of the foreign policy agenda. On June 14, Argentine President Kirchner made an emotional appeal to the UN Special Committee on Decolonisation for bilateral negotiations on sovereignty between Argentina and the UK. She was the first head of state to speak to the Committee. A recent conference at the University of Cambridge explored why the Islands remain so deeply rooted in the Argentine psyche.
The dispute over the Falklands (Malvinas) has returned centre stage just as the prospects of substantial hydrocarbon reserves in the seas surrounding the Islands greatly increased the economic stakes of the sovereignty dispute. The promise of an oil boom in the South Atlantic has prompted several companies listed in London, including Falkland Oil and Gas, Borders and Southern Petroleum, Rockhopper, Desire Petroleum and Argos Resources, to survey the area. They obtained exploration licenses from the Falklands administration in 2011, which drew strong criticism from Argentina. Earlier, both Argentina and the UK had anticipated that cooperation in matters of natural resources was desirable, given the uncertainty generated by their sovereignty dispute. Read the rest of this entry…
Stephen Tierney is Professor of Constitutional Theory and Director of the Edinburgh Centre for Constitutional Law at the School of Law, University of Edinburgh .
Editor’s Note: This post is a response to a previous post by Timothy Waters: “Let his People Go: Sudan’s Lesson for Secession” which comments on the implications for international law of the recent referendum in Southern Sudan on independence.
The notion that the right of self-determination embraces a legitimate claim to independent statehood seemed to have fallen into desuetude with a decolonisation process that was largely completed by the 1970s. Despite (or more probably because) of this, the feasibility of a new right, generated from first principles, caught the eye of moral philosophers who, particularly in the 1990s, debated how such an entitlement might be based upon demotic integrity (e.g. Harry Beran) or some kind of remedial principle (e.g. Allen Buchanan). For international lawyers, of course, this mode of reasoning is so unrealistic as to be unhelpful for a range of reasons. But it does seem that a strict dichotomy between the redundancy of self-determination in legal terms and the renewed interest in the principle at the political/normative level is not the whole story. As we reflect on the two decades of international response to the ‘new nationalism’ since Slovenia’s referendum on independence from the SFRY in December 1990, there have been subtle but important shifts in how the ‘international community’ has responded to statehood claims presented by sub-state territories. In this time we have seen how the impetus for such change at the local level can build international support, how particularly in light of violent conflagrations which pose threats to peace and security international intervention can focus not simply on security problems but also on their underlying constitutional causes of these threats, and how the subsequent structure of response by powerful states has in certain cases facilitated moves towards statehood.
There are many angles to this shift in direction, but I would like to focus briefly on the use of the referendum – applied most recently in Sudan – as a particularly illuminating feature of this change in structural response. First, the referendum has emerged as one of the gateways to a new, normative-rich set of recognition criteria. Read the rest of this entry…
Christian J. Tams is Professor of International Law at the Univeristy of Glasgow. His publications include Enforcing Obligations Erga Omnes in International Law (Cambridge University Press, 2005).
The International Court of Justice’s Kosovo opinion of 22 July had been much expected. It was one of the not so frequent instances which the world (as opposed to State parties, or a small group of international lawyers) was waiting for the world court to speak. Great expectations can lead to great disappointment. And judging from the first round of reactions and responses on this blog and in other fora, there is indeed a feeling of disappointment: of course among those who expected a different outcome, but also among those who would have hoped for a fuller discussion of the legal issues raised by the unilateral declaration of independence of 17 February 2008.
I share many of the points made in the posts by Dapo and Zoran in their posts on this blog, notably their surprise at the Court’s strained conclusion on the identity of the authors of the declaration of independence – a readjustment of the request that is rightly criticised by Vice-President Tomka in his declaration. Instead of reiterating my agreement with other criticisms, I will use this comment to make two broader points on the scope of the opinion. The first comes back to the “minimalist” focus of the opinion, and essentially is an attempt to shift some of the blame away from the Court. The second is a reflection on what seems to be the crucial substantive statement of the opinion – namely that general international law does not prohibit declarations of independence.
A narrow answer to a narrow question
First, the Court’s minimalism. Few fail to mention it, some even speak of a “non-opinion”. I agree: the Kosovo opinion is narrowly argued, and its advisory value limited. But unlike some others, I do not think the Court can really be blamed for that. Of course, some of the judges may have been relieved to offer a narrow/cautious/minimalist reasoning, yet this is not unusual: when faced with high profile disputes courts often decide to be technical, and the ICJ is no exception. The real point is another one, and while obvious, I do not think it is properly reflected in the discussion so far. It is this: Read the rest of this entry…
Zoran Oklopcic is Assistant Professor, Department of Law, Carleton University, Ottawa. Hs previous EJIL:Talk! post on Self-Determination and the Status of Kosovo can be found here.
As we digest the meaning and implications of the recent Advisory Opinion, Separate and Dissenting Opinions, I’d like to offer two preliminary remarks: the first deals with the (lack of) mention of the right to self-determination of peoples, and secondly regarding the identity of the author of the Declaration of Independence of Kosovo.
In its decision, the Court declined to ‘apply’ straightforwardly the norm of self-determination to judge the UDI ‘illegal’ or ‘legal’. Had it chosen to follow the suggestions of Spain, Argentina, Serbia, China and others, Kosovo’s UDI would have been judged illegal because ‘external’ self-determination doesn’t apply outside of the contexts of decolonization and military occupation. Conversely, if following Albania, Estonia, Poland, Germany, Ireland and others, Kosovo’s UDI would have been legal under the ‘remedial’ variant of self-determination.
The Court chose instead to follow the suggestions of the United States, Britain and several other countries, and not to engage in interpretation of the question of self-determination at all. In a situation where opinions on the applicability of self-determination sharply diverge, seeking the lowest common denominator, the lex specialis of UN Resolution 1244 to judge Kosovo’s UDI, could have appeared as a prudent strategy. Interestingly, the Court did not refer to the parallel prong of the US argument—“the unique combination of factors”—that sought to provide a moral component to the otherwise technical reasoning that anchored the legal argument in the interpretation of Res. 1244. Read the rest of this entry…