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Home Archive for category "States and Statehood"

Western Sahara before the CJEU

Published on January 11, 2018        Author: 
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Just a quick heads-up to our readers that yesterday Advocate General Wathelet of the Court of Justice of the EU delivered his opinion in Case C‑266/16, Western Sahara Campaign UK, The Queen v Commissioners for Her Majesty’s Revenue and Customs, Secretary of State for  Environment, Food and Rural Affairs. This is a very important opinion, dealing with numerous issues of international law, above all the principle of self-determination; the AG concluded that the Fisheries Agreement between Morocco and the EU was invalid because it was in violation of self-determination, as the Agreement applied to the territory and waters of Western Sahara. This is the first time that a request was made under the preliminary ruling procedure for a review of validity of international agreements concluded by the EU and their implementing acts. In that regard, the AG concluded that it was possible to rely in such proceedings on the rules of international law which are binding on the EU, where their content is unconditional and sufficiently precise and where their nature and broad logic do not preclude judicial review of the contested act. These conditions were in the AG’s view satisfied here. In addition to self-determination, the AG also examines the principle of permanent sovereignty over natural resources and the law of occupation, including the capacity of the occupying power to concluded treaties for the occupied territory.

The AG’s opinion is rich and rigorously argued – obviously it remains to be seen whether the Court will follow it. I would only add that the opinion and the case concern the validity of the Agreement from the perspective of the internal legal order of the EU, which then incorporates (other) rules of international law. But one could also look at the validity question purely from the perspective of general international law, and the rule set out in Art. 53 VCLT. In that regard, the necessary implication of the AG’s analysis seems to me to be that the Agreement was void ab initio and in toto as it conflicted with a peremptory norm of international law, the right to self-determination. For background on the UK litigation from which this case arose, see this post by David Hart QC on the UK Human Rights Blog. For analysis of the earlier Polisario litigation before EU courts, see here.

 

 

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Resignation of Mugabe: A Military Coup or a Legitimate Expression of the People’s Will?

Published on December 5, 2017        Author: 
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On 15 November 2017, following a rule of 37 years since the independence of Zimbabwe, President Mugabe was placed under house arrest by the army. A military spokesman appeared on state television to declare that the president was safe and that they were only “targeting criminals around him who are committing crimes that are causing social and economic suffering”. He further noted that this was not a military coup. Mugabe resisted stepping down for a week but then finally resigned on 21 November when the Parliament initiated impeachment proceedings. Mnangagwa, the former Vice-President, who was fired by Mugabe only a week before the military intervention, was sworn in as president on 24 November, and the military granted Mugabe immunity from prosecution.

As will be discussed below, the African Union (AU) has adopted an uncompromising approach towards military coups. However, in the very recent case of Zimbabwe it preferred a more cautious stance, which stands in contrast with its previous practice. The Zimbabwe episode demonstrates two important things. Firstly, the event proves that the practice of the AU is highly effective in that even if an army wants to overthrow a ruler, it now needs to find the most appropriate way to avoid the application of the AU’s sanction mechanism. Second, the AU did not adopt the same approach it had followed in many other cases, because the target of the military takeover was a long-established president notorious for his authoritarian rule. Read the rest of this entry…

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A Footnote on Secession

Published on October 26, 2017        Author: 
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We have had a very rich debate on secession on the blog in recent weeks, and we will have more posts to follow. For my part, I would agree with much of what Jure Vidmar has said in his post this week, with the proviso that I personally don’t think the argument out of comparative constitutionalism necessarily has much purchase – that argument is contextually specific, and what works constitutionally in Canada or in the UK need not be the position in Spain. The ultimate arbiter of the Spanish constitutional order – the Constitutional Tribunal – has (for good or ill) not gone the Quebec Reference path. I agree in particular that international law has little to say on the secession of Catalonia specifically; Kurdistan is a more difficult question (on which a bit more below). What I would like to do in this post, however, is take a step back and reflect more generally on how secession is regulated by international law – and it is indeed regulated, if not wholly so.

It seems to me most useful to conceptualize international law’s regulation of secession in a three part model. First, there are cases where international law explicitly prohibits secession, when it is being effected through the violation of some fundamental norm of international law, such as the prohibition on the use of force or the prohibition on racial discrimination – this was the case, for example, with the Turkish Republic of Northern Cyprus. Such fundamental illegality is an impediment to the achievement of statehood which otherwise satisfies the relevant factual criteria, and thus bounds effectiveness. Crucially, as the ICJ has confirmed in the Kosovo AO, among these norms is NOT the principle of territorial integrity insofar as it does not govern the relationship between the parent state and an internal secessionist movement; that principle is only relevant if a third state assists a secessionist entity, as with Turkey and the TRNC.

Second, there is a middle ground, a zone of tolerance, where international law is neutral towards secession, neither prohibiting it nor creating a right to it. This neutral zone is what is left over from the classical position towards secession in international law, which was essentially that in order to establish itself as a state against the wishes of its parent, the secessionist entity needed to fight – and win – a war of independence against its parent (e.g. the USA, or most of the states of Latin America).

Finally, in the third part, a zone of entitlement, international law creates a right to secession under external self-determination, or perhaps remedial secession. The argument of Serbia and most of its allies in the Kosovo advisory proceedings was essentially that no zone of tolerance existed between prohibition and entitlement; the argument of Kosovo and its supporters that international law at the very least tolerated the declaration of independence/secession. Serbia could also have argued that even if the territorial integrity principle did not generally prohibit non-state actors from declaring independence, it did so here because Kosovo’s independence was as a matter of fact enabled by an unlawful use of force contrary to the Charter by NATO in 1999. Serbia of course deliberately chose not to do so, and for three basic reasons: it did not want to antagonize the NATO powers, as this argument would inevitably do, the Resolution 1244 regime came after the initial use of force and authorized the presence of international forces in Kosovo, and it was highly unlikely that the Court would want to rule on it in the context of the advisory proceedings.

Read the rest of this entry…

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Catalonia: The Way Forward is Comparative Constitutional Rather than International Legal Argument

Published on October 24, 2017        Author: 
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On 10 October 2017, Catalonia issued and then immediately suspended its declaration of independence, and urged Spain to negotiate. Spain does not want to negotiate. Rather, it sought clarification as to whether or not Catalonia’s manoeuvre indeed was a declaration of independence. Such clarification was needed, according to Spain, in order to decide on an appropriate response. Subsequently, Spain announced its plan to remove certain political leaders of Catalonia and impose direct rule on the region. The recent situation in Catalonia has already been addressed on this blog (see here and here). What is striking – or perhaps not – is how little international law actually has to say on secession and indeed even on statehood. Statehood is quite simply a politically-created legal status under international law. Catalonia is yet another proof that statehood is a complicated nexus of law and politics which cannot be explained by legal rules alone. International law merely delineates the field for a political game. Just as studying football rules cannot tell us which team is going to win – Barcelona or Real – studying the law of statehood alone cannot tell us how states emerge. We need to see the game played within certain rules. In this post, I will explain the international legal framework that defines the rules of the political game and argue that the game itself may be much more influenced by comparative constitutional rather than international legal argument.

Unilateral secession between Kosovo para 81 and Quebec para 155

In the modern world, new states can only emerge at the expense of the territorial integrity of another state (see here for details). The emergence of a new state is then a political process of overcoming a counterclaim for territorial integrity. Sometimes states will waive such a claim – the United Kingdom was willing to do that with regard to Scotland. Where the parent state does not waive its claim to territorial integrity, an attempt at secession is unilateral.

The international law on unilateral secession is determined by the Kosovo Advisory Opinion para 81 and the Quebec case para 155. It follows from Kosovo para 81 that unilateral declarations of independence are not illegal per se, i.e. merely because they are unilateral, but illegality may be attached to them in situations similar to Northern Cyprus and Southern Rhodesia. This is not the case with Catalonia. Pursuant to Quebec para 155, the ultimate success of unilateral secession depends on recognition by other states. This pronouncement may sound somewhat problematic in light of international legal dogma that recognition must always be declaratory. Where independence follows from a domestic settlement (e.g. had Scotland voted for independence in 2014), recognition indeed plays little role. But the Supreme Court of Canada was quite right that recognition is much more instrumental – even constitutive – where a claim for independence is unilateral.

 

The Kosovo and Quebec doctrines lead us to the conclusion that where the Northern Cyprus or Southern Rhodesia type of illegality is not attached to a declaration of independence, the obligation to withhold recognition under Article 41 ARSIWA does not apply, and pursuant to Quebec para 155 foreign states may grant recognition, taking into account the legality and legitimacy of a claim for independence. This means that foreign states could recognise Catalonia, but they are under no obligation to do so. Read the rest of this entry…

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Secession and Self-determination in Western Europe: The Case of Catalonia

Published on October 18, 2017        Author: 
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This presentation is based in part on the Legal Opinion by an International Commission of Legal Experts addressing the question of Catalonia: The Will of the People and Statehood. The Commission was composed of Professors Marc Weller (UK ), John Dugard (South Africa), Richard Falk (USA) and Ana Stanic (Slovenia). Although the Opinion was commissioned by Esquerra Republicana de Catalunya, its findings represent the agreed and independent views of the authors. While based on the Opinion, which will be published in due course, this contribution does not purport to give an authoritative rendering of it, but instead represents the views of the author.

This contribution assesses the claim to statehood of Catalonia, addressing in turn:

  • The criteria for statehood;
  • The legality or otherwise of unilateral declarations of independence;
  • The issue of self-determination;

Objective criteria of Statehood

Catalonia can easily meet the classical, objective criteria for statehood. It has a clearly defined territory of some 32,000 sq km, featuring clearly defined boundaries. Its stable population numbers around 7.5 million, far in excess of many recently independent states in Europe and beyond. It is the most economically viable region when compared to other parts of Spain. Even under autonomy within Spain, Catalonia has exhibited most of the functions of effective government.

Whether Catalonia would in fact exercise fully independent powers of government can only be assessed if and when it decides to implement its declaration of independence, at present suspended in application. Catalonia has generated a substantive transitional law, to apply pending the adoption of a new constitution once independence proceeds. That law would assign all public powers to the new state, including foreign affairs powers (‘capacity to enter into international relations’). Hence, Catalonia is, at least potentially, capable of statehood.

Negative subjective criterion

In addition to the classical, objective criteria, there are negative and positive subjective criteria of statehood. The negative criterion, confirmed by the International Court of Justice in the Kosovo Opinion, demands that statehood must not be tainted by jus cogens violations. There is no suggestion of such conduct by Catalonia in this instance.

First positive subjective criterion: A manifestation of popular will

The positive subjective criteria come in two guises: first, there must be an act of will of the population, and second, that will must be enacted through a declaration of independence.

Any change in the social contract of a political community as dramatic as an act of secession from the established legal order must be based on the will of the people. Ordinarily, this would take the form of a referendum, although in some instances (dissolution of Czechoslovakia), concurrent decisions of the elected national and regional assemblies have been taken to be sufficient.

The international legal requirements for a valid referendum are only emerging. Still, in analogy to emerging standards on democratic governance, at least within Western Europe, it is clear that there must be a free and fair campaign and a transparent and open balloting process. In this instance, any intimidation came from the side of the Spanish government, including arrests, raids and other measures against pro-independence campaigners and officials. Read the rest of this entry…

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Populist International Law? The Suspended Independence and the Normative Value of the Referendum on Catalonia

Published on October 12, 2017        Author: 
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In his speech before the Catalan regional parliament on 10 October 2017, the Catalan President Carles Puigdemont suspended a declaration of independence but stated that the referendum of 1st October gave the Catalans a mandate for creating a sovereign state. This post examines whether this assertion is borne out by international law. I submit that neither the Catalans and their leaders nor the central government act in an international law-free zone.

A declaration of independence would not violate international law

The International Court of Justice, in its Kosovo opinion of 2010, found that a unilateral declaration of independence does “not violate general international law” (para. 122) ─ if such a declaration is not “connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)” (para. 81; see also paras 84, 119-121 on non-violation). The ICJ in that Opinion inverted the legal question placed before it (which had been whether the declaration of independence was “in accordance with international law” (para. 1)). The Court had also shied away from saying anything meaningful on secession (as opposed to the speech act of declaring independence). In result, the Advisory Opinion came out as a parsimonious if not meagre restatement of the law.

Disproportionate use of force (police and military) is prohibited by international law

However meek, the Kosovo Advisory Opinion is relevant for Catalonia also with regard to the prohibition on the use of force. The Court here said that “unlawful use of force” would taint a declaration of independence and make it violative of international law (para. 81), but did not say when such resort to force would indeed be “unlawful”. Also, the ICJ did not say whose use of force although it probably had the separatists themselves in mind. Read the rest of this entry…

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(Non-)Recognition of De Facto Regimes in Case Law of the European Court of Human Rights: Implications for Cases Involving Crimea and Eastern Ukraine

Published on October 9, 2017        Author: 
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In an increasing number of cases, the European Court of Human Rights (‘ECtHR’, ‘the Court’) has been dealing with the question of the application of the European Convention on Human Rights (‘ECHR’, ‘Convention’) on territories which are outside the control of the state to which they belong. Such lack of control is either because of the occupation by a foreign state or because of the control by a separatist movement, as a rule, established and/or existing with the aid of a foreign state. One of the issues that arises in this context is the (non-)recognition of the regime that exercises control over such territory (the de facto regime).

This blog post looks at the Court’s existing approaches to the (non-)recognition of de facto regimes. It then discusses the implication of this approach for cases involving Eastern Ukraine and Crimea that may come before the Court and require it to deal with the question of (non-)recognition.

Existing approaches

The issue of (non-)recognition becomes particularly relevant when the Court is called on to assess proceedings conducted by the courts of a de facto regime in the light of the Convention. The Court has dealt with the issue of (non-)recognition when deciding on the exhaustion of domestic remedies at the admissibility stage, and on claims relating to freedom from arbitrary detention and the right to a fair trial at the merits stage. Read the rest of this entry…

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The Partition of India and Pakistan: Lessons on UN Membership in the Event of a Break-Up of a State

Published on August 21, 2017        Author: 
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70 years ago today (21 August 1947) the United Nations Security Council adopted Resolution 29 recommending that the General Assembly admit Pakistan to membership of the United Nations. That resolution was adopted a few days after British India was partitioned, and the emergence on 15 August 1947 of the newly independent countries of India and Pakistan. Of the many issues that arose out of the decolonisation of India, one new legal issue was how to deal with membership of the emergent states in the recently created United Nations. The UN was faced for the first time with an issue, which has proved to be a recurring one in the history of the UN: how should the organization deal with the break-up of an existing member? There have since been many cases where a number of states have emerged on the territory of an existing member after a break-up of the member (the most recent cases being Montenegro’s separation from Serbia in 2006 and South Sudan’s separation from Sudan in 2011). In all of these cases, one of the key questions that arises is whether the legal personality of the existing state continues and, if so, whether it may simply retain its membership in the UN despite the break-up. Or alternatively, is the previous state to be taken as no longer existing with all the entities emerging on its territory to be regarded as new states? Where new states have emerged from a UN member should such new states be required to apply anew for UN membership? The principles that emerged from the partition of India, with respect to the membership of India and Pakistan, came to be relied upon in later situations, particularly in the 1990s upon the break up of the Soviet Union, and ultimately also in the case of the former Yugoslavia.

India’s membership of the UN is also interesting because it (meaning British India) was an original member of the United Nations and had previously been a member of the League of Nations, even though it did not become independent until 1947. It held that membership in the UN despite Articles 3 and 4 of the UN Charter stating that membership in the UN was open to “states”. British India, being a dependent territory, was not a state as a matter of international law before August 1947. However, pre-independence India was not the only entity that was an original member of the UN that was not a state. Read the rest of this entry…

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ICJ Advisory Opinion Request on the Chagos Islands

Published on June 24, 2017        Author: 
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Yesterday the UN General Assembly voted, by 94 to 15 with 65 states abstaining, to issue a request for an advisory opinion from the International Court of Justice on the Chagos Islands. Readers will be familiar with the many legal disputes that have arisen from this leftover UK colonial possession in the Indian Ocean, ranging from the human tragedy of the Chagossians expelled en masse from the islands to make room for what is now a US military base of enormous size and importance, to the role that the Diego Garcia base played in the war on terror, to the applicability of human rights law to these issues, the designation of real or pretextual maritime protection areas, and the actual sovereignty dispute with Mauritius. Here’s a useful news item from the Guardian, and here is GA resolution itself, A/RES/71/292.  This is the operative part, i.e. the request that the Court will have to address:

(a)     “Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967?”;

(b)     “What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?”.

The precise drafting of these questions can be enormously consequential, as shown most recently and most clearly with the Kosovo advisory opinion – I would refer interested readers in that regard to the volume edited by Michael Wood and myself on The Law and Politics of the Kosovo Advisory Opinion (OUP, 2015), particularly chapters 3, 6 and 7 which deal with various aspects of the ‘question question.’ At first glance, the drafting of the Chagos request is not only interesting, but also quite intelligent, especially regarding the (a) part.

Why? Well, one almost ritualistic aspect of these advisory opinions are the objections made to the jurisdiction of the Court and the propriety of its exercise by states who opposed the issuance of the AO request in the first place. These objections almost never work, but the good fight is nonetheless always fought. And there are cases, like the Kosovo one, in which a particular objection (there regarding the relationship between the UNSC and the UNGA) could find significantly more purchase than could otherwise be expected. In the Chagos case in particular, one could expect the UK to make the objection that the AO request is trying to circumvent the consent requirement for contentious ICJ jurisdiction, and is in effect litigating a bilateral dispute (see e.g. the Wall AO, para. 43-50). And in fact there clearly is a set of bilateral disputes on Chagos between Mauritius and the UK.

Note, however, the clever drafting of part (a) of the request: it doesn’t directly speak of whether Mauritius has sovereignty over the Islands, but asks whether the process of decolonization of Mauritius was lawfully completed because of the separation of the Chagos Islands from its territory. It also makes links to numerous GA resolutions, in order to reinforce the view that this is a multilateral issue, raising broader questions of principle which the GA has been dealing with for decades.

When it comes to part (b) of the request, what’s particularly notable is that it doesn’t simply ask what the consequences would be if the Court found that the UK acted unlawfully in part (a). Rather, the consequences are those arising from the UK’s continued administration of the Chagos Islands. This would allow the Court to deal with various questions that not directly related to sovereignty or any faults with the decolonization process, like the plight of the Chagossians. On the other hand, the drafting of part (b) is also such that it could allow the Court to ‘properly interpret’ it in such a way as to avoid some of the more controversial issues, as it in fact did in the Kosovo AO. We shall, of course, have to wait and see what happens – but watch this space.

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Revising the Treaty of Guarantee for a Cyprus Settlement

Published on June 21, 2017        Author: 
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On June 28th, 2017, the UN-sponsored international conference in Crans-Montana, Switzerland, will attempt to comprehensively settle the Cyprus Issue. The Greek-Cypriot and Turkish-Cypriot delegations will be joined by the delegations of the three ‘Guarantor Powers’ (Greece, Turkey and the UK), and one from the EU as an observer, in order to discuss the issue of security and guarantees – an issue that appears to be the major stumbling block for an agreement. The existing Treaty of Guarantee (1960) has failed in so many respects. It has been violated by the Greek side, which suspended basic articles of the Constitution under the doctrine of necessity in the 1960s and sought to unite the island with Greece following the junta-led military coup in 1974. It has also been violated by the Turkish side, which used it to militarily intervene in 1974, without seeking to reestablish the state of affairs created in 1960 and instead opting to partition the island.

The current position of the Greek side is that guarantees should be abolished altogether, whereas the Turkish side considers that they have provided effective security and should be maintained in some form or another. In public discourse, both sides selectively interpret the notion of guarantee and what it is meant to serve so as to support their positions. If not treated as a political cover but in a legal sense, however, a guarantee refers to ‘any legally binding commitment to secure [an] object’ (Oppenheim’s International Law, vol. 1, 9th edition, p. 1323). Creating binding commitments is the gist of the matter that should concern us. Read the rest of this entry…

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