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Home States and Statehood Archive for category "Territorial Disputes" (Page 2)

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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The Consequence of the UN Resolution on Israeli Settlements for the EU:  Stop Trade with Settlements

Published on April 4, 2017        Author: 
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The recent UN Security Council Resolution 2334 (2016) reaffirmed that the establishment of Israeli settlements in the occupied Palestinian territory has no legal validity and that Israel’s settlement enterprise is a flagrant violation of international law. The resolution also calls upon all States “to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”. This part of the resolution is of great significance with regard to the question of trading with settlements.

While the content of the resolution might seem novel, Secretary of State John Kerry was right to remind us in his landmark speech on the Israeli-Palestinian conflict at the end of 2016 that:

this resolution simply reaffirms statements made by the Security Council on the legality of settlements over several decades. It does not break new ground”. In 1980 UN Security Council Resolution 465 had called upon all States “not to provide Israel with any assistance to be used specifically in connection with settlements in occupied territories.

Trading with settlements offers an economic lifeline that allows the settlement enterprise to survive and develop. This reality and the aforementioned UN Security Council Resolutions make a good case not to trade with settlements. But is the withholding of such settlement trade truly an obligation under international law?

In an earlier piece I argued that there is indeed such an obligation, and the lack of state compliance does not seriously shake the legal foundations of this argument. Just last year in an open letter, 40 legal experts (myself included) called upon the European Parliament, and the office of the High Representative and the Trade Commissioner to stop trade with settlements in compliance with the EU’s international legal obligations. Signatories included two former UN rapporteurs, a former President of the International Law Commission, a former judge on the ICTY, and dozens of professors in international law.

Our main argument was that the EU has the obligation to end trade with Israeli settlements based on the duties of non-recognition and non-assistance. This post will describe the legal argumentation underlying these duties. Read the rest of this entry…

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The South China Sea moves to the Indian Ocean: Conflicting Claims Over the Tromelin Islet and its Maritime Entitlements

Published on February 8, 2017        Author: 
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The small, isolated, inhospitable (and inhabited) island of Tromelin, located in the Indian Ocean north of Mauritius and the French Reunion island, and east of Madagascar (see map), has been the subject of passionate debate in recent weeks in France, both in the media (here and here) and within the Parliament (transcript of the debate before the French National Assembly).

Tromelin is a flat and small feature, about 1,700 metres long and 700 metres wide, with an area of about 80 hectares (200 acres). Its flora is limited, while the site is known to host significant numbers of seabirds. There is no harbour nor anchorages on the island, but a 1,200-metre airstrip, and there appears to be no continuous human presence.

Tromelin was discovered by a French navigator in 1722, and France today claims sovereignty over it by virtue of historical title (discovery of terra nullius) dating back to that date. The islet was the scene of a sad – and little known – episode of history as the place where approximately 60 Malagasy men and women were abandoned for 15 years in the 18th century after a French ship transporting slaves eschewed on the island. Most of the slaves died within a few months. The survivors were finally rescued in 1776, when Bernard Boudin de Tromelin, captain of the French warship La Dauphine, visited the island and discovered seven women and an eight-month-old child. Captain Tromelin also raised a French flag on the island – and his name was given to it.

French possession of Tromelin was interrupted by Britain which took control of the island in 1810. Then in 1954, the British gave their consent to France’s effective control over Tromelin. But sovereignty over Tromelin is still disputed, and the island has been claimed by the newly independent Mauritius since 1976, and reportedly also by Madagascar and the Seychelles (see V. Prescott, ‘Indian Ocean Boundaries’ at 3462-63). The controversy in France over Tromelin has led to the postponing of the ratification by the Parliament of a framework agreement entered into by France and Mauritius in June 2010, providing for joint economic, scientific and environmental management (cogestion) of the island and of surrounding maritime areas. Read the rest of this entry…

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Security Council Resolution 2334 (2016) and its Legal Repercussions Revisited

Published on January 20, 2017        Author: 
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Security Council 2334 (2016), adopted by the Security Council on December 23, 2016 with 14:0:1 votes, the United States abstaining, and dealing with the issue of Israel’s settlement policy in the occupied Palestinian territory, and the broader issue of the international legal status of the West Bank and East Jerusalem will, just like Security Council resolution 242 (1967) beforehand, probably become one of those seminal Security Council resolutions every international law professor will have to deal as part of his or her international law class since, apart from its immediate context and its political repercussions, it by the same token raises, and relates to, fundamental issues of international law.

While various of those issues, and namely the question of its binding effect have already been dealt with here, there still remain quite a number of open issues that require further clarification, some of which will be discussed hereinafter.

  1. Relationship of Security Council resolution 2334 (2016) with prior Security Council resolutions, in particular Security Council resolution 242 (1967)

The claim has been made that Security Council resolution 2334 (2016), as adopted, is incompatible with the content of Security Council resolution 242 (1967) (see here) given that Security Council resolution 2334 (2016) in its preambular paragraph 5, as well as in its operative paragraph 3, takes as a starting point for any final territorial arrangements between the parties to the conflict the 4 June 1967 lines, i.e. the so-called ‘Green line’, any changes to which would require a negotiated agreement between the two sides. Read the rest of this entry…

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The ‘Internationalization’ of Maritime Disputes in the South China Sea: Environmental Destruction in the High Seas and Threats to the Global Commons

Published on April 28, 2016        Author: 
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What does it mean to ‘internationalize’ a maritime dispute? Accusations of ‘internationalization’ of the maritime disputes in the South China Sea have been strident over the past weeks, most recently from the 18 April 2016 Joint Communique of the Foreign Ministers of the Russian Federation, the Republic of India, and the People’s Republic of China, which stressed that “Russia, India and China are committed to maintaining a legal order for the seas and oceans based on the principles of international law, as reflected notably in the UN Convention on the Law of Sea (UNCLOS). All related disputes should be addressed through negotiations and agreements between the parties concerned. In this regard the Ministers called for full respect of all provisions of UNCLOS, as well as the Declaration on the Conduct of Parties in the South China Sea (DOC) and the Guidelines for the implementation of the DOC.” (Joint Communique, para. 21). Russian Foreign Minister Sergei Lavrov was also reported to have observed to Chinese media in Moscow during the Russia-China-India April 2016 trilateral summit that “[attempts to internationalize the issue] are completely counterproductive. Only negotiations, which China and the ASEAN are pursuing, can bring the desired result; namely, mutually acceptable agreements” – a sentiment echoed by Chinese Foreign Minister Wang Yi who was also reported to have voiced his opposition to the ‘internationalization’ of the South China Sea dispute on the basis of the Philippines’ “unilaterally-proposed arbitration case”. Chinese President Xi Jinping reiterated the call for negotiations only between the states involved, reportedly implying  nations outside the region such as the United States have “no role in regional disputes”.  The Russia-China-India trilateral statement came one week after the G7 Summit in Hiroshima, Japan, yielded the April 11, 2016 G7 Foreign Ministers’ Statement on Maritime Security, which stated, among others, that the G7 “express[es]… strong opposition to any intimidating, coercive or provocative unilateral actions that could alter the status quo and increase tensions, and urge all states to refrain from such actions as land reclamations including large scale  ones, building of outposts, as well as their use for military purposes and to act in accordance with international law including the principles of freedoms of navigation and overflight. In areas pending final delimitation, we underline the importance of coastal states refraining from unilateral actions that cause permanent physical change to the marine environment insofar as such actions jeopardize or hamper the reaching of the final agreement, as well as the importance of making every effort to enter into provisional arrangements of a practical nature, in those areas.” (G7 Statement, para. 5).   Read the rest of this entry…

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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: 
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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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