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.
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…
On October 4, the United Kingdom’s National Cyber Security Centre (NCSC), a division of the GCHQ, issued a news release attributing multiple cyber campaigns to Russia’s military intelligence service, the GRU. They were, according to the NCSC, designed to ‘undermine [the] international sporting institution WADA [World Anti-Doping Agency], disrupt transport systems in Ukraine, destabilise democracies and target businesses’.
The release was notable in two regards. As the campaigns were conducted by the GRU, an organ of the Russian government, Russia is legally responsible under the law of State responsibility for any violations of international law that may have occurred. Second, the release stated that the operations were ‘conducted in flagrant violation of international law’. Indeed, Foreign Secretary Jeremy Hunt, whom the release quoted, observed, ‘[t]his pattern of behaviour demonstrates their desire to operate without regard to international law or established norms and to do so with a feeling of impunity and without consequences’.
Unfortunately, neither the NCSC nor the Foreign Secretary delineated those rules of international law that Russia allegedly violated or otherwise undermined. In this post, we attempt to tease loose the legal significance of the operations by measuring them against the recently enunciated UK positions on international law in the cyber context. Attorney General Jeremy Wright set forth these positions in a 23 May Chatham House speech. We first highlight the UK approach to the key international law prohibitions that are relevant vis-à-vis the Russian operations. Second, we assess the operations themselves against the UK position on these legal rules. Finally, we conclude by making the point that legal policy decisions with respect to cyberspace may prove a double-edged sword. Compelling reasons may exist for adopting particular positions regarding international law norms in cyberspace, but seldom are those positions cost-free. In particular, we suggest that the United Kingdom’s rejection of a rule requiring respect for the sovereignty of other States eliminates its most defensible basis for arguing that the Russian cyber campaigns undermined international law. Other States should bear this in mind before following suit.
If “all options are on the table” in the international arena, it is a reliable indicator that the stakes are high. We still recall when President Trump put all options on the table in August last year responding to North Korean missile tests. Just a few days before, Germany, usually not known for Trumpish rhetoric, also placed “all options on the table” in a dispute with Vietnam. This was not because Germany was concerned about a nuclear escalation. Germany was responding to a kidnapping of a Vietnamese citizen and asylum seeker, which Germany’s foreign minister accurately described as something “we believe one sees only in sinister thrillers about the cold war.”
Trinh Xuan Thanh, a former high-profile constructive executive, for whom Vietnam issued an international arrest warrant for corruption, sought refuge in Germany. Thanh however never showed up for the hearing scheduled in his asylum case. Instead, a few days later, he appeared haggard-looking on Vietnamese television. Vietnam stated Thanh had voluntarily turned himself in. Germany presents a different version of Thanh’s return, accusing Vietnam of abduction. Purportedly, witnesses saw armed men dragging Thanh into a rental car in the middle of Berlin. After a stopover at the Vietnamese embassy, it is believed that he was clandestinely transported by ambulance to Eastern Europe from where he was flown to Vietnam. Germany had no doubts that Vietnamese officials were responsible. On February 5, the second trial against Thanh concluded. While he escaped the impending death penalty, he received two life sentences for embezzlement. Read the rest of this entry…
Understanding the Use of Zones and the Concept of Proportionality: Enduring Lessons from the Falklands War
On 2 April 1982 Argentina invaded the Falkland Islands (alternatively, the Islas Malvinas). The resulting conflict lasted 74 days and claimed the lives of 255 UK military personnel and 652 Argentine servicemen. The conflict raises a myriad of legal issues but at its core is the issue of sovereignty (here). However complicated the issue, disputes over sovereignty did not legally authorise the Argentine invasion (see UNSCR). This post will not go over the vexed issue of sovereignty but will instead focus on two select issues relating to the conduct of hostilities. The Falklands War has largely receded from thought but lingering doubts over the legality of a Total Exclusion Zone (TEZ) established by the UK and its torpedoing of the Belgrano endure. By focusing on the issue of zones and the concept of proportionality this post will seek to provide clarity to two often misunderstood areas of law that are of vital importance to contemporary military operations.
The UK Total Exclusion Zone
A few days after the Argentinian invasion the UK issued a notice indicating that, from 12 April 1982, a Maritime Exclusion Zone (MEZ) would be in force, extending 200 nautical miles from the centre of the Falklands. On 28 April, the UK declared a TEZ that encompassed the same geographical area as the MEZ but was broader in scope regarding ratione personae. In essence, the TEZ stated that any ship or aircraft entering the TEZ that was not authorised to be there by the UK Ministry of Defence was deemed to be operating in support of the occupation, regarded as hostile, and therefore liable to attack. Read the rest of this entry…
Part I: Analysis of Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean
On 23 September 2017, the Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) rendered an award in Ghana/Côte d’Ivoire. It is only the second case, following the Guyana/Suriname Arbitration of 2007, in which an international adjudicating body has ascertained the meaning and scope of Articles 74(3) and 83(3) of the United Nations Convention on the Law of the Sea (UNCLOS) within the context of unilateral oil and gas operations in disputed areas.
The Special Chamber delimited the parties’ territorial sea, exclusive economic zone (EEZ) and continental shelf boundaries within and beyond 200 nautical miles (nm) with the boundary being an unadjusted equidistance line favouring Ghana. Other key questions for adjudication were a) Ghana’s claim regarding a long-standing, tacit agreement as to the existence of a maritime boundary and b) Côte d’Ivoire’s allegation that, by continuing with oil activities in the disputed area, Ghana had violated its Article 83(1) and (3) UNCLOS obligations to negotiate in good faith and to make every effort through provisional arrangements not to jeopardise or hamper arrival at an agreement.
In its judgment, the Special Chamber reached a number of conclusions which, taken with its Order for the prescription of provisional measures of 25 April 2015, will have significant, practical implications for the future conduct of unilateral oil and gas activities in disputed maritime areas, as well as for the associated rights and obligations incumbent upon States concerned. Read the rest of this entry…
The recent “NotPetya” cyber-operation illustrates the complexity of applying international law to factually ambiguous cyber scenarios. Manifestations of NotPetya began to surface on 27 June when a major Ukrainian bank reported a sustained operation against its network. The Ukrainian Minister of Infrastructure soon announced ‘an ongoing and massive attack everywhere’. By the following day, NotPetya’s impact was global, affecting, inter alia, government agencies, shipping companies, power providers, and healthcare providers. However, there are no reports of NotPetya causing deaths or injuries.
Cybersecurity experts have concluded that despite being initially characterized as a ransomware attack similar to WannaCry and Petya, NotPetya was directed at specific systems with a purpose of ‘causing economic losses, sowing chaos, or perhaps testing attack capabilities or showing own power’. Additionally, most agree that Ukraine was the target of the operation, which bled over into other States. The key question, however, is the identity of the attacker. NATO Cooperative Cyber Defence Centre of Excellence experts have opined that ‘NotPetya was probably launched by a state actor or a non-state actor with support or approval from a state.’
Although the facts are less than definitively established, the EJIL: Talk! editors have asked us to analyse the incident on the assumption that it is factually and legally attributable to a State. We begin with a peacetime international law survey and conclude with an international humanitarian law (IHL) analysis. Read the rest of this entry…
On 23 May, the Qatar News Agency published content attributing statements to Qatar’s Emir which laid bare simmering regional sensitivities and quickly escalated into a full-blown diplomatic row between Qatar and other regional Powers.
Indeed, on Monday 5 June, Saudi Arabia, the United Arab Emirates (UAE), Bahrain and Egypt adopted what has been dubbed a ‘diplomatic and economic blockade’ (to the annoyance of some). Not only did these States close their land, naval and aerial borders for travel and transport to and from Qatar, the three Gulf States also appeared to expel Qatari diplomats and order (some) Qatari citizens to leave their territory within 14 days. In addition, websites from the Al Jazeera Media Network, as well as other Qatari newspapers, were blocked and offices were shut down in several countries. At the end of a feverish week, on Friday 9 June, targeted sanctions were furthermore adopted against Qatari organizations and nationals believed to have links to Islamist militancy.
In justification of the measures, the sanctioning States invoked the Gulf Cooperation Council’s 2013 Riyadh Agreement and its implementation mechanisms as well as the Comprehensive Agreement of 2014. Although the contents of these agreements are not public, it is believed that the Gulf States expected Qatar to curtail its support to groups that purportedly pose a threat to the region’s stability, such as Hamas and the Muslim Brotherhood. Read the rest of this entry…
Part I of a Two-Part Post
There is a widespread myth amongst international lawyers. This is the apparently unshakeable proposition that forcible humanitarian action is clearly unlawful. Any changes to that proposition would be impossible, given:
- The preponderance of the doctrine of sovereignty over countervailing considerations, such as human rights;
- The requirements for the formation of a new rule of customary international law in favour of forcible humanitarian action;
- The additional requirements involved in any change to the prohibition of the use of force, which unquestionably enjoys jus cogens status; and
- The supposedly inevitable abuse of the doctrine.
The recent blog debate about the cruise missile strike in connection with the use of chemical weapons in Syria offers an example of this, starting with a presumption against forcible humanitarian action that can hardly be overcome ( see here, here, here, here and here).
That default proposition may have been persuasive to some during the Cold War years. However, it can no longer be maintained. For it is not in accordance with an unbroken understanding of the relationship between the state and its population since the emergence of states and the doctrine of sovereignty in the renaissance, it disregards very clear evidence of international practice, and it ignores very fundamental shifts in legal doctrine and scholarly opinion. Read the rest of this entry…