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Home Archive for category "Unilateral declarations"

Brexit, the Northern Irish Backstop, and Fundamental Change of Circumstances

Published on March 18, 2019        Author: 
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If, dear readers, you have any doubts that the parliamentary politics of Brexit have emerged from the fever dream of some demented game theorist, I would just ask you to take a very quick look at the events of last week. In their second meaningful vote on Theresa May’s Brexit deal, British MPs voted it down by 391 votes to 242, a majority of 149. This was an improvement of sorts on the first meaningful vote, which May lost by a majority of 230. MPs also voted to reject a no-deal Brexit and to instruct the government to ask the other EU states for an extension to the Article 50 withdrawal period. At the same time, by a majority of only 2 votes they defeated the Benn amendment, which would have allowed Parliament to express its preferences as to the outcome of the Brexit process in a series of indicative votes, and thus overcome the current impasse.

This week Theresa May seems poised to take her deal to the Commons for a third meaningful vote, most likely on Tuesday or Wednesday, before the EU Council meets on Thursday. She has worked furiously over the past few days to lobby the Northern Irish DUP and the hard-core Brexiteers within her party to vote for her deal, or risk either a very long extension to Article 50 or the UK remaining in the EU after all. This fear is of course the main incentive to bring the various pro-Brexit factions within Parliament and the Tory party to support May’s deal, and it is growing in power as the Article 50 deadline approaches. But because some of these factions have effectively painted themselves into a corner over the supposed downsides of May’s deal, they need something more than fear itself to justify a change of mind to their electorate. They need, well, a fundamental change of circumstances, like re-revised legal advice from the UK Attorney-General, Geoffrey Cox QC. And they may well eventually find that in the customary rule on fundamental change of circumstances, rebus sic stantibus, codified in Article 62 of the Vienna Convention on the Law of Treaties.

Now, if even after two full years into this whole MCFoHP someone told me that Brexit could ultimately depend on Art. 62 VCLT, I would have been perplexed, to put it politely. This is, for all its Roman pedigree, a rule that has never successfully been applied in real life, I would have said. Its requirements are almost impossibly strict. How could something as important as Brexit depend on an international law doctrine of such relative obscurity that even international law textbooks standing at more than a thousand pages devote it less than two? To paraphrase the late Ian Brownlie’s pithy assessment of jus cogens, the rule on fundamental change of circumstance is a car that has never left the garage.

But – but – over the past week the garage doors have creaked open, with a whiff of something tart and pungent. The stillness of things has become disturbed.

Read the rest of this entry…

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Negotiating Brexit in the Shadow of the Law of Treaties

Published on March 12, 2019        Author: 
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It is an extraordinary day in British politics today, with the Prime Minister’s ‘enhanced’ Brexit deal to be voted on in Parliament later this evening. The outcome of today’s vote, and the votes that may follow later in the week, is of course anyone’s guess (although the WA will likely be voted down). I have now read through the Attorney-General’s new legal advice on the revised deal and have been following the debate in the House of Commons, and was struck by how remarkably the various issues being debated turned around the customary law of treaties, which operates by default, in the background, unless the UK and EU agree differently. Here are just some – readers are of course invited to discuss any relevant matter in the comments:

(1) What is the legal nature of the Joint Instrument relating to the Withdrawal Agreement, and what are its legal effects? Is it an agreement in the sense of Art. 31(2)(a) VCLT, which defines the ‘context’ of the treaty? Is it something even stronger, an ‘authentic interpretation’ of the WA? Is is also a separate treaty, even though it is not called such, because it is a written agreement between a state and an IO governed by international law, which sets out further obligations that were not in the WA? (The latter is the position of the UK government).

(2) Note in that regard the superb example of constructive ambiguity of the final paragraph of the Instrument, which allows the EU to say, on one hand, that the WA was not reopened or changed as the Instrument simply interprets the WA, and for the UK to argue that meaningful legally binding changes were made to the deal:

Note that this instrument provides, in the sense of Article 31 of the Vienna Convention on the Law of Treaties, a clear and unambiguous statement by both parties to the Withdrawal Agreement of what they agreed in a number of provisions of the Withdrawal Agreement, including the Protocol on Ireland/Northern Ireland. Therefore, it constitutes a document of reference that will have to be made use of if any issue arises in the implementation of the Withdrawal Agreement. To this effect, it has legal force and a binding character.

(3) Similarly, what is the legal nature and effects of the UK’s Unilateral Declaration? Is it simply an interpretative declaration by the UK, which is of itself incapable of having any direct legal effects, being simply a statement of the UK’s position? Or is it something more, especially because the EU has not objected to it?

(4) There seems to be consensus that the customary rules on denunciation and suspension of treaty obligations have been displaced by the express dedicated provisions of the WA. This seems to apply also for termination or suspension due to material breach. The WA does not allow the UK to exit the backstop unilaterally; it can only suspend obligations arising from it if the EU is shown to be acting in bad faith and this is determined by the arbitral tribunal established by the WA.

(5) However, the UK’s position is that it CAN unilaterally terminate the WA or the backstop Protocol in case of fundamental change of circumstance/rebus sic stantibus. The Attorney General was explicit on the point repeatedly in the Commons. Never has more been at stake, it seems, regarding the interpretation of the rule in Art. 62 VCLT.

We’ll obviously have to wait and see how this will play out, but again it is clear that Brexit is being shaped critically by the background operation of the law of treaties. It is also remarkable how much importance has been given to questions of form, i.e. how crucial it is for many MPs whether a particular obligation is political or legally binding. Readers may also be interested in the Attorney’s new advice; the Attorney’s prior advice on the WA; an opinion by David Anderson QC, Jason Coppel QC, and Sean Aughey; and an opinion by Philippe Sands QC and David Edward QC.

 

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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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Harmonizing Standards in Armed Conflict

Published on September 8, 2014        Author: 
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Editor’s Note: This post is part of the joint series of posts hosted by EJIL:Talk!, Lawfare and Intercross (blog of the International Committee of the Red Cross) and arising out of the Transatlantic Workshop on International Law and Armed Conflict held in Oxford this summer.

One of the consequences of the non-international armed conflicts (NIACs) of recent years has been widespread recognition that the current international humanitarian law (IHL) treaty framework regulating such conflicts is inadequate. One interim solution that some states have pursued has been to apply the rules developed for international armed conflicts (IACs) in conflicts with non-state armed groups.

The United States, Australia, Canada, the Netherlands, the United Kingdom, and others, for example, have issued guidance stating that their armed forces will apply IAC rules as a matter of policy in NIACs. And since 2009,the US has taken the position that “[p]rinciples derived from law-of-war rules governing international armed conflicts. . . must inform the interpretation of [its Guantánamo] detention authority.” Yet the extent to which states look to IAC principles as a means of delimiting their authority is unclear.

The Project on Harmonizing Standards for Armed Conflict, which I co-direct with Sir Daniel Bethlehem at the Columbia Law School Human Rights Institute, seeks to augment such efforts by exploring the extent to which the IAC treaty regime can be practically applied, as a matter of law, in NIACs.  The ultimate goal of the project is to help harmonize the IHL rules applicable in all armed conflicts to the higher standards established for IACs. States would adhere to the regime by registering a unilateral declaration of intent with an appropriate body, possibly the Swiss Federal Council (the depository for ratifications of the Geneva Conventions).  The resulting regime would be legally binding on that state as a matter of international law.

One consequence of the approach would be to substantially reduce the significance of characterizing a conflict as either an IAC or NIAC.  If successful, the project could help significantly raise the level of protection for individuals in non-international armed conflicts while clarifying a participating state’s IHL obligations.  More broadly, it could complement longer-term law reform efforts by demonstrating the feasibility of holding states to the higher standards of protection from IAC, and ultimately catalyse the development of a more harmonized regime of IHL legal standards. Read the rest of this entry…

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The Marshall Islands’ Case against India’s Nuclear Weapons Program at the ICJ

Published on June 27, 2014        Author: 
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ShashankShashank P. Kumar is a Dispute Settlement Lawyer at the Appellate Body Secretariat of the WTO in Geneva and a visiting lecturer of international law at National Law University, Jodhpur, India.

Earlier this year, on 24 April, the Republic of the Marshall Islands filed an application against India and eight other States at the International Court of Justice (ICJ), claiming that these States, known or presumed to possess nuclear weapons, have failed to fulfil their obligations under international law with respect to nuclear disarmament and the cessation of the nuclear arms race at an early date. In its application against India, the Marshall Islands accused it of not engaging in negotiations to cease the nuclear arms race, highlighting that India, instead, continues to expand and improve its nuclear arsenal. By an Order dated 16 June 2014 the Court noted India’s objection to its jurisdiction, as well as its refusal to participate in procedural meetings, and decided that the jurisdictional questions must be separately determined before proceeding to the merits. This post explores the basis of the Court’s jurisdiction over the Marshall Islands’ application against India. One reservation to India’s optional clause declaration excluding disputes concerning actions taken in “self-defence” suggests that the Court lacks jurisdiction over the case.

The Marshall Islands relies on different grounds to establish the Court’s jurisdiction in its nine applications. In its applications against India, the United Kingdom, and Pakistan, it invokes these States’ declarations accepting the Court’s compulsory jurisdiction. In its applications against the United States, China, France, Russia, Israel and North Korea – none of whom have made declarations accepting the Court’s compulsory jurisdiction – it calls upon these States to accept the Court’s jurisdiction under the doctrine of forum prorogatum. The application against India is unique because, while India has accepted the Court’s compulsory jurisdiction, unlike the UK and Pakistan, India made a reservation to its Declaration that may exclude the Court’s jurisdiction over the Marshall Islands’ Application.

The Limits of India’s Recognition of ICJ Jurisdiction

On 18 September 1974, Swaran Singh, the then Indian Minister of External Affairs, made a declaration, on India’s behalf, which recognizes “as compulsory ipso facto and without special agreement … the jurisdiction of the [ICJ] over all disputes”. This blanket acceptance is qualified by a long list of reservations that excludes several categories of disputes from the scope of India’s consent. One broad class of disputes that is excluded are “disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, … and other similar or related acts, measures or situations in which India is, has been or may in future be involved”. Read the rest of this entry…

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Crimea: Does “The West“ Now Pay the Price for Kosovo?

Published on April 22, 2014        Author: 
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There is a lingering sentiment on this blog (see the posts by Nico Krisch and Christian Marxsen) that “the Kosovo issue” has facilitated the blatant violations of international law recently committed by Russia with regard to Crimea (notably the unlawful annexation of that territory), and that “the West’s” behaviour in the Kosovo context now prevents clear condemnations and robust reactions towards these violations. That view has also been espoused elsewhere (see, e.g., Marcelo Kohen, “L’ Ukraine et le respect du droit international”, Le Temps, 13 March 2014 and Bruno Simma, “The West is hypocritical” (interview), Der Spiegel, 7 April 2014). The basic idea is that “the West” now pays the price for Kosovo, and that such a situation was predictable (and has been predicted) by those who now deplore it, and allows them to think (or even to say): “Well, we warned you from the beginning on, and this is now what comes out of it … so we were right”.

In this post, I would like to investigate the soundness of this position. We first have to ask what is meant by “the Kovoso issue”. Actually “Kosovo” refers to two events: not only to the sponsoring of Kosovo’s independence in 2008, but also to the possible unlawfulness of NATO’s military intervention of 1999. Both events were politically linked, and they concerned three different core norms of international law: the prohibition on the use of force, territorial integrity/inviolability of boundaries, and the self-determination of peoples.

In the Crimea crisis, all three norms are again at stake: Russia both relies on its right or even responsibility to intervene with military means to prevent human rights abuses committed against ethnic Russians and Russian citizens (humanitarian type /R2P-type intervention) and on the Crimean (or even Eastern Ukrainian) right to secession based on the right to self-determination whose exercise in Crimea led to a disruption of Ukrainian territorial integrity.

Did Russia abuse these norms? Read the rest of this entry…

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Crimea’s Referendum and Secession: Why it Resembles Northern Cyprus More than Kosovo

Published on March 20, 2014        Author: 
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On 16 March 2014, Crimea held a referendum on its future legal status. Reportedly, the choice to join Russia was supported by an overwhelming 95.5 per cent of all votes cast, with the turnout of 83 per cent. A day earlier, Russia vetoed a draft Security Council resolution which sought to declare the referendum as ‘having no legal validity’ and urge the international community not to recognise its results. The draft resolution was otherwise supported by 13 members of the Security Council, with China abstaining. On 17 March 2014, the Crimean parliament declared independence and applied to join Russia.  This contribution explains that while the referendum itself was not illegal in international law, the shift of territorial sovereignty would be illegal. Moreover, in the legal circumstances underlying the situation in Crimea, even the declaration of independence violated international law. As a result, the obligation to withhold recognition of the effective situation is applicable under general international law. No Chapter VII Resolution is required. This is not because international law would see territorial integrity of states as an absolute norm, but because the effective situation was created by Russia’s use or threat of force. Although parallels have been drawn to Kosovo (see the discussion in Christian Marxsen’s post) and even Scotland, in terms of international law Northern Cyprus would be a more accurate comparison.

Secession and neutrality of international law

Groups seeking independence usually present self-determination as an absolute entitlement. Conversely, states countering secession usually present territorial integrity as an absolute entitlement of states. Neither camp is right. As follows from the General Assembly’s Declaration on Principles of International Law (GA Res 2625), the Quebec case (Supreme Court of Canada) and partly also from the Kosovo Advisory Opinion (ICJ), international law is actually neutral on the question of unilateral secession. This means that unilateral secession is neither prohibited nor an entitlement. Furthermore, for the purposes of international law, it does not matter whether or not secession is explicitly prohibited under domestic law. As noted by the Supreme Court of Canada in the Quebec case, an entity may declare independence extra-constitutionally and yet nevertheless become independent if other states are willing to recognise it (the Quebec case, para 155). This further confirms that unilateral secession unto itself does not trigger an obligation to withhold recognition. [I explain this further here].Yet states are very rarely willing to grant recognition on a widespread basis to entities seeking independence unilaterally. By holding a referendum and declaring independence, such an entity in most circumstances does something that remains legally ineffective, yet not internationally wrongful. The burden of changing the territorial status quo lies on the secession-seeking entity and this exercise is very rarely successful if the parent state does not agree. However, a declaration of independence may be given effectiveness through foreign military assistance. This is where neutrality of international law ends. International law is neutral only with respect to a declaration’s unilateral character, but not in general, where territorial illegality is attached to the situation.

When are declarations of independence illegal?

Territorial illegality arises under a serious breach of certain fundamental norms of international law, in particular jus cogens. Read the rest of this entry…

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Timor-Leste v Australia: Provisional Observations

Published on March 6, 2014        Author: 
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As has already been reported in this forum, earlier this week the International Court of Justice issued an order indicating provisional measures in Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia). The documents and data in question relate to ongoing arbitral proceedings between Timor-Leste and Australia. The documents were taken from the Canberra-based offices of a legal counsel to Timor-Leste by the Australian Secret Intelligence Organisation (ASIO) under a warrant issued by the Attorney-General of Australia.

On the whole, the order does not appear terribly exciting, but it does raise three issues worthy of some attention.

The first relates to the role of the Attorney-General. The Court, by twelve votes to four, ordered Australia to keep the documents it had seized under seal and not permit them to be used to the detriment of Timor-Leste while proceedings before the ICJ were under way. The Court indicated these measures despite the written undertakings of the Attorney as to the measures the Australian government was taking to safeguard the confidentiality of the documents. (To point out the obvious, this is the very same Attorney-General who authorised the seizure of the documents in the first place.)

While the majority of the ICJ deemed the Attorney-General’s undertakings insufficient, the Court had no difficulty in viewing them as binding under international law. The Court referred in this respect to a statement of the Agent of Australia that “the Attorney-General … [had] the actual and ostensible authority to bind Australia as a matter of both Australian and international law”. In other words, Australia conceded that, as a matter of international law, it was bound by the undertakings of its Attorney-General. Read the rest of this entry…

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