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Home States and Statehood Archive for category "Territorial Disputes"

Palestine Sues the United States in the ICJ re Jerusalem Embassy

Published on September 30, 2018        Author: 
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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.

Read the rest of this entry…

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Part II: The Partition of the Chagos Archipelago and the Haunting Spectre of the South West Africa Cases

Published on September 21, 2018        Author: 
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[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…

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Part I: The Partition of the Chagos Archipelago and the Haunting Spectre of the South West Africa Cases

Published on September 20, 2018        Author: 
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[Part I of a two-part post] 

The advisory proceedings concerning the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 are over, but an opinion that answers the legal questions raised in the request could have consequences well beyond the Indian Ocean.

Earlier this month, Stephen Allen contributed a post on the self-determination arguments made in relation to the first question asked of the court. Like Allen, I have taken sides in my scholarly work, although unlike Allen, I have argued that self-determination emerged as a customary norm of international law before 1970. As I argued in my article on the arbitration (2010-2015) between the UK and Mauritius (published in volume 19 of The Max Planck Yearbook of United Nations Law, 2016, pp. 419-468), the emergence of a norm prohibiting partition in the decolonization context would have outlawed the division of the archipelago before independence in 1968, unless it could be shown that Mauritius consented to the separation.

In this post, I argue that the legal arguments raised by the Applicants in the South West Africa Cases could be of direct relevance to the opinion, because although the ICJ refused to address the merits, the cases spanned a period of time (1960-1966) that is germane to any contemporary assessment of the legality of the decision to partition the Chagos Archipelago in 1965. While the Applicants did not reference the Colonial Declaration (GAR 1514 (XV) (1960) in their pleadings, they nevertheless argued that international law in the 1960s prohibited partition, demonstrating that there were principles of law at stake that proscribed the non-consensual division of territory.

What remains missing is an authoritative opinion from the world court. Read the rest of this entry…

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Not Appropriate:  PTC I, Palestine and the Development of a Discriminatory ICC Jurisprudence

Published on July 26, 2018        Author:  and
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On 13 July, Pre-Trial Chamber I (PTC I) issued an unprecedented decision in which it ordered the Registry to establish unique public information and outreach activities for the “benefit of the victims in the situation in Palestine”, as well as to report on its situation activities on an ongoing basis.  No Pre-Trial Chamber has made the same orders with respect to victim outreach in a situation under preliminary examination before, and the legality, timing, and singular nature of the decision all give rise to concern. 

The decision singles out victims of one situation whilst ignoring others, reflecting a double standard which forms the basis of Israel’s complaints that its rights to equal treatment are systematically violated before 21st century international organisations and tribunals. In this sense, the decision is illuminating as it demonstrates to international criminal law practitioners how PTC I has substantiated Israel’s complaint of double standards in the Chambers’ first substantive engagement with the Situation in Palestine. Given the unique way that the Situation in Palestine has been singled out, PTC I’s decision will be viewed by many as a political one.  This is an accusation which, especially after the collapse of the Kenya cases, the ICC should be more wary of making itself susceptible to.

The Legality of the PTC Decision Read the rest of this entry…

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The Applicability of the ECHR in Contested Territories; Two Other ECHR Cases Against Russia

Published on July 19, 2018        Author: 
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Earlier this week the European Court of Human Rights decided Sandu and Others v. the Republic of Moldova and Russia, nos. 21034/05 etc, the latest in its Ilascu line of cases (see here and here for more background). As in its previous case law, the Court in Sandu found that both Moldova and Russia exercised jurisdiction in the sense of Article 1 ECHR over the contested separatist territory of Transdniestria, the former on the basis of sovereign title, and the latter on the basis of its control over the area. In this case, which concerned property rights, the Court found Moldova to have discharged its positive obligations towards the applicants, and Russia not to have done so, thus incurring responsibility for violating the Convention. Like in its previous case law, it remains unclear whether the Court is attributing to Russia the conduct of Transdniestrian separatist authorities, or whether Russia is responsible for its own conduct of failing to exercise influence over these authorities so as to protect the applicants’ rights.

Coincidentally, Tatjana Papic and I have recently posted on SSRN the draft of an article on the applicability of the ECHR in contested territories, forthcoming in the ICLQ , in which we provide a critique of the Court’s Ilascu jurisprudence. The abstract is below, and any comments are welcome:

This article examines the applicability of the European Convention for Human Rights (ECHR) when a State loses control over parts of its territory. Such situations have increasingly arisen in cases before the European Court of Human Rights. For instance, the Court currently has on its docket an interstate case between Georgia and Russia, three interstate cases between Ukraine and Russia, and thousands of individual applications which concern either Crimea or Eastern Ukraine. The article argues that the jurisprudence of the European Court, which insists on residual positive obligations based in sovereign title over territory, is problematic and needs to be rethought. The Court’s current approach is not only likely to provoke backlash, since it requires it to decide politically explosive questions of sovereign title, but does so for very little practical benefit for the protection of human rights. The article therefore explores more preferable alternatives.

Also this week the Court rendered two unrelated but very important judgments against Russia. First, regarding the 2006 killing of journalist Anna Politkovskaya, the Court found Russia responsible under Article 2 ECHR for failing to conduct a fully effective investigation into the killing, specifically because Russian authorities did not explore all feasible lines of investigation into the person or persons who contracted Politkovskaya’s assassination (Mazepa and Others v. Russia, no. 15086/07).

Second, the Court found Russia responsible for the violation of several human rights of three members of the Pussy Riot band, who were arrested, convicted and sentenced to two years of imprisonment for (very briefly) performing their song Punk Prayer – Virgin Mary, Drive Putin Away in the Christ the Saviour Cathedral in Moscow (Mariya Alekhina and Others v. Russia, no. 38004/12). Pussy Riot were of course very much in the news last weekend, after their pitch invasion at the World Cup final in Moscow.

(Image: Sportimage/PA Images)

The most interesting part of the Pussy Riot judgment is the Article 10 analysis; the Court is not content with saying simply and easily that the sentence of imprisonment imposed on the applicants was disproportionate, but engages in line-drawing between hate speech and offensive speech, which is particularly relevant because the domestic crime that the applicants were convicted of incorporated a hatred element. The judgment also has a rather glorious appendix with several Pussy Riot songs (oh so very du jour, and reproduced below for entertainment value, together with the song at issue in the case itself).

 

Read the rest of this entry…

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The Settlement Agreement between Greece and the Former Yugoslav Republic of Macedonia

Published on June 18, 2018        Author: 
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On 12 June, Athens and Skopje announced that they have reached an agreement to resolve a dispute over the former Yugoslav Republic’s name that has troubled relations between the two states for decades. The agreement was signed at Prespes Lake, a lake at the border of Albania, Greece, and the former Yugoslav Republic of Macedonia, on 17 June. Despite the historic significance of the deal, following its announcement, the two governments have faced furious backlash. Voices on both sides condemn the agreement in the strongest possible terms, with the President of Macedonia, Gjorge Ivanov, rejecting the deal point-blank and the Greek opposition submitting a motion of no confidence against Prime Minister Alexis Tsipras and his government, which failed to carry late on the night of 16 June, a few hours before the signing of the Agreement.

The present contribution provides an overview of the main points of the Agreement reached between the two neighbours to end their 27-year-long bitter dispute.

Historical Background

The former Yugoslav Republic of Macedonia is the interim designation of the constitutionally named ‘Republic of Macedonia’ (Republika Makedonija) at the time of accession to the UN. The Republic of Macedonia declared independence in 1991 at the dissolution of the SFRY, and sought international recognition. The use of the name ‘Macedonia’ has created a long-lasting dispute with the neighbouring country of Greece. Read the rest of this entry…

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The Israeli Strikes on Iranian Forces in Syria: a case study on the use of force in defence of annexed territories

Published on June 8, 2018        Author: 
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Factual Background and Legal Issue

The extensive air strikes launched by Israel on Iranian forces and assets across Syria in the early morning of 10 May 2018 present a complex case study which deserves proper legal scrutiny. According to the reconstruction given by the Israel Defence Forces (IDF), the strikes were decided in retaliation for a rocket barrage fired some hours earlier from Syrian territory on IDF forward outposts in the Israeli-controlled Golan. Despite denials by Iranian officials of any direct involvement of their military in Syria, the rockets were immediately attributed by the IDF to the Quds Force, the special unit of the Iranian Revolutionary Guards in charge of extraterritorial operations.

Reacting to the alleged Iranian attack and to Syria and Iran’s condemnation of Israel’s response as an act of aggression against Syria, the governments of the United States, the United Kingdom and Germany explicitly referred to Israel’s right to act in self-defence against Iran. The same Israeli Prime Minister Netanyahu, before the operation could take place, had invoked ‘Israel’s obligation and right to defend itself against Iranian aggression from Syrian territory’. This claim, although phrased in legal terms, was not formalised in an Article 51 letter filed with the UN Security Council, which should include a justification for the use of force against both Syria (whose territorial integrity was violated) and Iran (whose forces and facilities were targeted). A self-defence argument however would raise in the present case a legal issue related to the status of the territory attacked: the Golan Heights, occupied by Israel after the Six-Day War in 1967 and annexed in 1981. Can an annexing state invoke Article 51 UN Charter to justify the use of force in self-defence against an armed attack directed exclusively at a territory that it annexed? This post submits that the answer to this question, which appears unsettled and largely unexplored, cannot overlook the situation of manifest illegality that a self-defence argument would purport to preserve and protract. Read the rest of this entry…

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Lost Between Law Enforcement and Active Hostilities: A First Glance at the Israeli Supreme Court Judgment on the Use of Lethal Force During the Gaza Border Demonstrations

Published on June 4, 2018        Author: 
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In response to the ongoing violent clashes between the Israeli Defence Forces (IDF) and Palestinian protesters during the so-called ‘March of Return’ along the Gaza border fence several Israeli human rights organizations petitioned the Israeli Supreme Court, challenging the IDF’s rules of engagement, as well as their implementation. The arguments put forward by the petitioners and the Israeli Government, as well as the legal issues involved were  discussed in advance of the Court’s judgment by Eliav Lieblich and Yuval Shany (here and here). Last week, the Israeli Supreme Court, sitting as the High Court of Justice, handed down its decision, which unanimously rejected the petitions. Although the judgment seems to be flawed on several issues, it nevertheless includes a couple of interesting statements regarding the relationship between law enforcement operations and active hostilities in armed conflict. An initial analysis of the decision has been published by Amichai Cohen and I should say at the outset that I share some of his conclusions. Those aspects of the decision that relate to international law will probably spark mixed feelings. As mentioned by Cohen, the fact that the Court explicitly endorsed the ICRC’s Interpretive Guidance on Direct Participation in Hostilities is certainly a welcome development. However, the fact that the justices refused to discuss the applicability of international human rights law (IHRL) in situations of armed conflict; that they invented an obscure new law enforcement paradigm; and expanded the notion of ‘imminent threat’ to allow for the preventive use of lethal force, less so. Read the rest of this entry…

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Prolonged Occupation or Illegal Occupant?  

Published on May 16, 2018        Author: 
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An unresolved question in international humanitarian law is whether an occupying power – whose authority as occupant may have initially been lawful – can cross a bright red line into illegality because it is acting contrary to the fundamental tenets of international law dealing with the laws of occupation.  This question has become especially relevant in light of several prolonged occupations in the modern world, including the 50-year-old Israeli occupation of the Palestinian territory.

The principal instruments of international humanitarian law, including the 1907 Hague Regulations, the 1949 Fourth Geneva Convention and the 1977 Additional Protocol to the Geneva Conventions, are silent on this question. However, a purposive reading of these instruments, together with the foundational tenets of international humanitarian and human rights law, leads to the conclusion that an occupying power whose intent is to turn occupation into annexation and conquest becomes an illegal occupant.

In my October 2017 report to the United Nations General Assembly as Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967, I argue that a four-part test can be derived from general principles of international law, including the laws of occupation, to determine whether the status of an occupying power has become illegal. Violating any one of these four parts of the test could establish the occupying power as an illegal occupant. Read the rest of this entry…

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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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