In my previous post I explained how the European Court’s Article 1 jurisprudence allows it to avoid the question of sovereignty over Crimea, since it can ground Russia’s jurisdiction over the territory, and thus the applicability of the ECHR, simply on the fact of its control and need not say anything else. But there are at least two issues on the merits of the Ukraine v. Russia re Crimea case that could directly engage the question of sovereignty over the territory. As a preliminary matter, I now need to say that I have not had the benefit of reading the pleadings of either party in the case – the Court has an inexplicable policy of not putting the pleadings online, but only allowing them to be consulted in its building in Strasbourg. That said, I am reasonably certain that the two issues I examine here are properly raised in the case. I will therefore now turn to the first of these, the mass imposition of Russian citizenship on the people of Crimea.
Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part I: Jurisdiction in Article 1 ECHR
On 11 September the Grand Chamber of the European Court of Human Rights held oral hearings on the admissibility of the interstate claim Ukraine brought against Russia regarding Crimea (no. 20958/14). The webcast of the hearing is available here. There are many different admissibility issues that the case raises, some of them heavily factual (e.g. the existence of an administrative practice on the part of Russia that makes individual recourse to domestic remedies impossible). The case may well flounder on one of them. But the one issue that concerns me here is simply this: should the European Court make any pronouncements on whether it is Ukraine or Russia who is the rightful sovereign of Crimea?
To be clear, sovereignty over Crimea is not to my mind a legally difficult question – Russia’s annexation of Crimea was as clearly illegal as anything can be. But there is wider, much more fraught, question of principle and prudence: should international human rights bodies pronounce on issues which, while capable of legal determination, are not part of their central mission of human rights protection and may negatively affect that mission? This is especially the case in situations in which it is entirely predictable that, in the political context, any such pronouncement would provoke intense backlash, even possibly leading to Russia’s withdrawal from the Council of Europe.
Living in the Shadow of Flawed Peace: How General International Law Is Implicated in the Trade War between Japan and South Korea
As the anniversary of V-J Day approaches, the legacy of World War II still casts a long shadow on its previous Pacific theatre. Last month, an unprecedented quadripartite incident involving warplanes from, inter alia, Japan and South Korea played out in the territorial airspace of the contested Dokdo/Takeshima islands, disputed territory that was left unresolved in the postwar San Francisco Peace Treaty of 1951 (SFPT). Yet, the warning shots fired above those tiny rocks is not the only instance of regional tensions heating up in Northeast Asia. On 2 August, Japan decided to remove South Korea from its list of trusted trade partners, following its restrictions on the exportation of three important chemicals to South Korea imposed last month. Days later, Japan pulled back and permitted export of a key chemical for semiconductor manufacturing in Korea. The two Asian economic titans have since brought their trade war to the attention of the WTO’s General Council.
Yet the WTO is not the only international legal regime engaged in the escalating trade conflict between Japan and South Korea. In this contribution, I aim to show that the now seldom-trodden postwar peace treaties concluding WWII are still pertinent to current international relations as evidenced by the diplomatic row between Seoul and Tokyo. Self-help remains relevant to the effective operation of the international legal order, especially with respect to the enforcement of international legal rules lying outside the purview of any (quasi)judicial fora such as flaws from postwar peace treaties.
The End of a World War
While Japan ended its colonial rule of the Korean Peninsula following its surrender to the Allies at the end of WWII, the Peninsula was soon split into two entities. Because of the Allies’ disagreement as to whether Korea was a belligerent party, neither Pyongyang nor Seoul signed the SFPT. Despite its exclusion of both Koreas, the SFPT includes a China/ Korea entitlement clause (article 21). Among other things, article 4—the framework provision on, inter alia, the disposition of property of Japan and of its nationals in the territories renounced by Japan (including the Korean Peninsula) and the relevant claims—is applicable to Korea by way of this special clause. Yet the apparent omission of the reparation clause (article 14) sowed seeds of the lingering dispute over responsibility and reparations between Japan and South Korea. Read the rest of this entry…
Sovereignty has “Rock-all” to do with it… or has it? What’s at stake in the recent diplomatic spat between Scotland and Ireland?
Rockall, the tiny, remote, rocky outcrop in the northeast Atlantic – a ghostly peak of an extinct volcano – has periodically appeared in the news at the centre of a longstanding dispute between the UK and Ireland (as well as, more peripherally, Denmark (Faroe Islands) and Iceland too). This dispute has rarely flared up publicly over recent years, as it has largely been subsumed as part of ongoing, unresolved negotiations surrounding extended continental shelf claims of the four states concerned. However, earlier this month, the Scottish government threatened enforcement action against Irish vessels which it claimed were illegally fishing within Scottish territorial waters surrounding Rockall. Ireland immediately responded to this threat by denying Scotland’s right to take any such action. It seemingly based its position on (i) a rejection of UK sovereignty over the islet and, (ii) the argument that such sovereignty (even if it existed) over uninhabited ‘rocks’ like Rockall was irrelevant for the UK’s claimed maritime entitlement. Although any enforcement action has yet to take place, the underlying diplomatic feud appears not to be going away any time soon. Indeed, following a meeting on Friday 28 June between the Irish Prime Minister (the Taoiseach) and Scottish First Minister, there has been an agreement to intensify discussions in light of the diplomatic impasse.
The Scottish position is perhaps explicable in a pre-Brexit (and pro-independence) political climate, where sovereign rights over natural resources will play a critical part – a theme I briefly return to at the end of this post. However, Ireland’s counterargument appears to be built on a misapprehension of the applicable law, both over territory and associated maritime rights. The real issue would appear to lie in the permissibility of fishing – including potentially acquired customary rights to do so – in the context of EU Common Fisheries Policy rules. In this short post I want to clarify the legal position on sovereignty and associated maritime rights, before turning to the arguably more complicated issue of fishing rights specifically. Before doing so, for those not already familiar, a brief introduction to Rockall is necessary. Read the rest of this entry…
In a May 25, 2019 interlocutory decision, the International Tribunal for the Law of the Sea (ITLOS) prescribed provisional measures in the case brought by Ukraine against Russia, ordering Russia to release three Ukrainian naval vessels and 24 Ukrainian service members seized on November 25, 2018 in an incident in the Kerch Strait. During the incident last fall, Russian Coast Guard forces, operating in concert with a Russian naval corvette and a military aircraft, fired on two Ukrainian warships and a naval auxiliary as they attempted to transit the strait against the orders of Russian authorities. The ships and their crews were captured and remain in detention in Russia, charged with violating Russian criminal law.
On April 29, Ukraine filed a case with ITLOS requesting provisional measures to order their immediate release. Such measures are authorized under article 290 of the United Nations Convention on the Law of the Sea (UNCLOS) in urgent situations to prevent a real and imminent risk of irreparable prejudice to the rights of a party, in this case Ukraine. Article 290(5) permits such measures before the merits of the case so long as the Tribunal has prima facie jurisdiction in the case. The key question was whether the Russia’s operation constituted a “military activity,” and was therefore exempt from jurisdiction in accordance with a previous Russian declaration under article 298 of UNCLOS. The Tribunal determined that Russia’s operations were not a military activity, but the decision is likely to generate unintended consequences.
The ITLOS order has effectively diminished the military activities exemption which will give pause to the 27 nations that have made such declarations, including China, France, Norway, Denmark, and the United Kingdom – and in the future, most likely the United States, which intends to make such a declaration once it accedes to the Convention. (The states are identified in paragraph 11 of Judge Gao’s separate opinion). In a decision that suggests outcome-based legal reasoning to constrain Russia, ITLOS questions the viability of the military activities exemption based on any rationale.
As part of its analysis for jurisdiction, the Tribunal avoided a determination on whether there was an armed conflict between the two states, as would appear from the application of the Geneva Conventions in article 2 common, and as I suggested in an earlier piece. Instead, the ITLOS order accepts without analysis that Ukraine and Russia are interacting during a time of peace, a dubious assumption. In doing so, the Tribunal vindicates two important rights that will be welcomed by maritime powers: sovereign immunity of warships and other government vessels and the peacetime right of freedom of navigation by Ukrainian military vessels. But in reaching this conclusion, the Tribunal diminished the military activities exemption. In a departure from the broader understanding of military activities evident in the 2016 Philippines v. China arbitration, the Tribunal found that the confrontation over innocent passage was a navigational issue, rather than one concerning a military activity, because innocent passage is a right enjoyed by all ships. The Tribunal also determined that Russia’s temporary suspension of innocent passage declared conveniently to halt the transit of Ukrainian warships was a law enforcement activity rather than a military activity. These factors led the Tribunal to conclude that Russia’s actions were “in the context of a law enforcement operation rather than a military operation.”
Earlier this afternoon the ICJ delivered its Chagos advisory opinion. Briefly, the Court found that the separation of the Chagos archipelago from the British colony of Mauritius was contrary to the right to self-determination and that accordingly the decolonization of Mauritius was not completed in conformity with international law. As a consequence, the Court found that the UK’s continuing administration of the archipelago, which includes the largest US naval base in the Indian Ocean, Diego Garcia, is a continuing internationally wrongful act, which the UK was under an obligation to cease as soon as possible. The Court was almost unanimous – its decision not to exercise discretion and decline giving an opinion was made by 12 votes to 1, while its findings on the merits were made by 13 votes to 1 (Judge Donoghue dissenting). The AO and the various separate opinions is available here.
Here are some key takeaways.
On Sunday 25 November 2018 Russian coast guard patrol boats, including the Don and the 630-ton Izumrud, first intercepted and later fired on three Ukrainian naval ships near the entrance to the Kerch Strait. Two Ukrainian sailors were injured, the Ukrainian ships seized and the crews arrested. The attack has been roundly condemned in the United States and around the world.
The Russian ships intercepted two Ukrainian Gyurza-M-class artillery boats, Berdyansk and Nikopol and a tugboat, Yany Kapu, as they sailed toward the Ukrainian port of Mariupol. Russian forces seized the vessels and arrested 24 crew members. The Don twice rammed the tugboat and the Russian vessels opened fire on the two smaller Ukrainian warships. The incident occurred in the territorial sea along the approaches to the Kerch Strait, which is bordered in the east by Russia and in the west by Russian-occupied Ukrainian Crimea. The Russian government stated that its forces fired only after the Ukrainian ships violated articles 19 and 21 of the United Nations Convention on the Law of the Sea (UNCLOS) concerning innocent passage in the territorial sea.
Exploring the legal circumstances of the incident requires selection between peacetime rules of the law of the sea and the law of naval warfare, which applies to international armed conflicts. This post concludes that the actual incident on the water is part of a continuing aggression by Russia against Ukraine, in violation of the UN Charter. While unlawful as a matter of the jus ad bellum, the incident would be a lawful in bello use of force by Russia in accordance with the law of naval warfare, notwithstanding Russia’s unlawful invasion of Crimea in 2014 or subsequent unlawful treatment of the Ukrainian sailors as common criminals rather than prisoners of war. In this case the law of naval warfare is lex specialis and supplants mutatis mutandis the peacetime rules of the international law of the sea for Russia and the Ukraine.
Palestine’s institution of proceedings against the United States before the International Court of Justice (ICJ) has already drawn much attention on this blog (see here and here) and elsewhere. A great deal has already been said on Monetary Gold and admissibility. My post will focus on the Article 34(1) ICJ Statute requirement that ‘[o]nly states may be parties in cases before the Court’. Contrary to some arguments that have been made on this blog and elsewhere, I will argue that for the purposes of Article 34(1) the ICJ does not need to decide whether Palestine is a state, let alone weigh the Montevideo criteria. An entity may be a ‘state’ for the functional purposes of certain treaties and procedures created by those treaties, but such procedures have no implications for the substantive legal status of the entity under general international law. I will also argue that Palestine’s access to these procedural treaty mechanisms is UNESCO membership and not the status of a non-member observer state in the UN.
When a treaty uses the word ‘state’
The ICJ proceedings are only open to states. But this does not mean that the legal status of an entity can be determined as a side-effect of the ICJ’s procedural rules. The logic of such an argument would go as follows: the ICJ can only hear cases between states, so if the ICJ exercises its jurisdiction, the parties in the proceedings must be states. This would be an implicit reading of the requirement contained in an international treaty that an entity be a state. Such implicit readings are not uncommon in international legal scholarship. We indeed often read in leading textbooks that since UN membership is only open to states, this is the ultimate confirmation that a UN member indeed is a state. Read the rest of this entry…
On Friday Palestine instituted proceedings against the United States of America before the International Court of Justice, claiming that the US violated the Vienna Convention on Diplomatic Relations by moving its embassy to Israel from Tel Aviv to Jerusalem. The application is here, the ICJ’s press release here; this is how the press release summarizes Palestine’s claim:
It is recalled in the Application that, on 6 December 2017, the President of the United States recognized Jerusalem as the capital of Israel and announced the relocation of the American Embassy in Israel from Tel Aviv to Jerusalem. The American Embassy in Jerusalem was then inaugurated on 14 May 2018.
Palestine contends that it flows from the Vienna Convention that the diplomatic mission of a sending State must be established on the territory of the receiving State. According to Palestine, in view of the special status of Jerusalem, “[t]he relocation of the United States Embassy in Israel to . . . Jerusalem constitutes a breach of the Vienna Convention”.
As basis for the Court’s jurisdiction, the Applicant invokes Article 1 of the Optional Protocol to the Vienna Convention concerning the Compulsory Settlement of Disputes. It notes that Palestine acceded to the Vienna Convention on 2 April 2014 and to the Optional Protocol on 22 March 2018, whereas the United States of America is a party to both these instruments since 13 November 1972.
In brief, Palestine argues that various articles of the VCDR, especially Article 3 thereof, require that the functions of the diplomatic mission be performed ‘in the receiving state,’ which means that the mission must be established in the receiving state. Jerusalem is not Israeli territory, and therefore moving the embassy there meant that it was not established in the receiving state. Ergo, there was a violation of the VCDR.
This case raises numerous issues, some obvious, some not. There are many objections that the US could raise, and will inevitably raise.
Part II: The Partition of the Chagos Archipelago and the Haunting Spectre of the South West Africa Cases
[Part II of a two-part post]
When consent has been vitiated
One of the most challenging aspects of partition is proving that its representatives’ consent was vitiated due to duress. In nearly all cases of partition duress, coercion, and even fraud has been alleged by one of the parties. In other words, their consent to the loss of territory was not freely given.
In Ireland, it was argued that the threat of force was employed during the negotiation of the Anglo-Irish Treaty in 1921 to ensure the Irish delegation accepted the option of dominion status against that of a republic (A. Carty, Was Ireland Conquered, 1996, p. 84). It was also alleged that the delegation’s consent to the partition was brought about by deceit because of assurances given to them that primary importance would be given by a Boundary Commission to the ‘wishes of the inhabitants’ in the redrawing of the boundary between Northern Ireland and the Irish Free State when, in fact, the UK never had any intention of interfering with the integrity of the six counties (A. Carty, Was Ireland Conquered, 1996, pp. 135-140).
In British India, it was argued that Mountbatten held a ‘metaphorical gun’ to Mohammad Ali Jinnah’s head when he ‘consented’ to a ‘moth-eaten Pakistan’ that he had spent his whole career opposing. Mountbatten even admitted that he ‘drove the old man quite mad’ by insisting that the logic of partition, if applied to India, must equally apply to the provinces of the Punjab and Bengal (quoted in M. Zafrulla Khan, The Agony of Pakistan, 1974, p. 47). Nehru agreed with Sardar Patel that ‘it might be possible to frighten Mr. Jinnah into cooperation because of the shortness of time available before partition must be completed’ (M. Zafrulla Khan, The Agony of Pakistan, 1974, p. 47). Read the rest of this entry…