rss

Featured Articles

  • 0

    Mapping the Peace: The Request for Interpretation in the Temple of Preah Vihear Case

    Mapping the Peace: The Request for Interpretation in the Temple of Preah Vihear Case

    Inna Uchkunova, New Bulgarian University (LLM), is a member of the International Moot Court Competition Association (IMCCA), Bulgaria. Oleg Temnikov is an Attorney-at-Law and Associate at the Sofia Office of Wolf Theiss law firm.

    There is a fable which tells of two brothers who made their living from farming. They shared a commonPreahvihear farmland and divided the harvest equally. Every year, the night after harvesting, the same thing happened. Each brother would think that the other one deserves a greater share of the grain, so each would fill two sacks and will sneak unnoticed into his brother’s barn to put the sacks there. One such night, the brothers bumped into each other halfway between their houses and thus they understood what has been happening. Word spread in the village and their compatriots decided to make a shrine on the place of their meeting to commemorate the compassion of the two brothers.

    The story of the Temple of Preah Vihear (aerial view above left, credit) is a different one. Instead of bringing people together, it has divided two nations for decades. The Temple has been a source of contention between Cambodia and Thailand since Cambodia’s independence from French rule in the mid-1900s. On 11 November, the ICJ rendered a judgment on Cambodia’s Request for Interpretation of the Court’s 1962 judgment in the Preah Vihear case. This post discusses the history of the case and the recent judgment.

    Cambodia first instituted proceedings before the ICJ in 1959, after Thailand occupied the Temple and negotiations failed to produce a peaceful settlement. Cambodia asked the Court to declare that Cambodia had sovereignty over the Temple and that Thailand was obliged to withdraw its forces. In its final submissions, Cambodia presented additional claims asking the Court to adjudge, inter alia, that “the frontier line between Cambodia and Thailand, in the Dangrek sector, is that which is marked on the map of the Commission of Delimitation between Indo-China and Siam (Annex 1 to the Memorial of Cambodia).” The Court determined this claim to be inadmissible as a “new claim” and held that it “can be entertained only to the extent that [it] give[s] expression to grounds, and not as claims to be dealt with in the operative provisions of the Judgment.”

    In its Judgment on the Merits of 15 June 1962, the Court held that by failing to protest for over fifty years after receipt of the Annex 1 map, Thailand acquiesced to the position of the frontier shown on the map. In the words of the Court, “Thailand… recognized the line on that map as being the frontier line, the effect of which is to situate Preah Vihear in Cambodian territory.” This finding represented a deviation from the Court’s usual treatment of maps. In previous cases, for example in the Frontier Dispute (Burkina Faso/Niger) case, the Court has treated maps as mere circumstantial evidence. In Preah Vihear, however, the Court ruled that “the acceptance of the Annex 1 map by the Parties caused the map to enter the treaty settlement and to become an integral part of it.”

    In view of this conclusion, the Court held that “Thailand is under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory.”

    Given the imprecise language referring to the “vicinity” of the Temple, Thailand claimed that its obligations under the 1962 Judgment would be completely discharged if it withdrew only from the “ruins of the Temple and the ground on which the Temple stood.” As a consequence, Thailand erected a barbed wire fence close to the Temple buildings and installed signs stating, “the vicinity of the Temple of [Preah Vihear] does not extend beyond this limit”.

    Tensions rose in 2007, when Cambodia requested inclusion of the site of the Temple on the World Heritage List. Cambodia sent a map to UNESCO showing the entire promontory of Preah Vihear, as well as the hill of Phnom Trap, to be Cambodian territory. Thailand protested immediately, and a number of armed incidents took place in the border area close to the Temple.

    Cambodia filed a request with the ICJ asking for interpretation of the 1962 Judgment. Cambodia claimed, in essence, that there was a dispute between the parties regarding the scope of the 1962 Judgment, particularly concerning whether the Court had decided with binding force that the line depicted on the Annex I map constitutes the frontier between the Parties in the area of the Temple. The other two points in dispute were the scope of the phrase “vicinity of Cambodian territory” used in the operative clause of the 1962 Judgment and, accordingly, the nature of Thailand’s obligation to withdraw. These questions are the subject of the Judgment on the request for interpretation rendered by the Court on 11 November 2013.

    At the outset, the Court recalled the requirements of Article 60 of the Statute, namely, the existence of dispute between the parties as to the meaning or scope of a judgment rendered by the Court—that is, a dispute concerning the operative clause of the judgment in question, and not to the reasons for the judgment, except insofar as the reasons are inseparable from the operative clause. In other words, the object of a request for interpretation “must be solely to obtain clarification of the meaning and the scope of what the Court has decided with binding force, and not to obtain an answer to questions not so decided.” The Court also clarified in response to a contention raised by Cambodia that the headnote of the Judgment cannot provide guidance as to its scope and that it does not represent “an authoritative summary of what the Court has actually decided.”

    Further, with a view to the primacy of the principle of res judicata, the Court noted that the real purpose of the request for interpretation must be to obtain an interpretation of the judgment and not, for example, to achieve revision of the judgment or to delay its implementation. With these considerations in mind, the Court decided the following:

      • By way of interpretation, the “vicinity” of the Temple means the entire promontory of Preah Vihear but excluding the hill of Phnom Trap. The Court reached this conclusion having regard to the evidence before the Court in 1962. Thus, the obligation to withdraw could only have referred to the place actually occupied by Thailand. By the time the 1962 Judgment was rendered this was exactly the promontory of Preah Vihear.
    • The Court could not pronounce or give any clarification on the question whether the line shown on the Annex 1 map constitutes the frontier between the Parties, given that the Court did not decide this question with binding force in the 1962 Judgment. The Court merely stated,

    In these circumstances, the Court does not consider it necessary further to address the question whether the 1962 Judgment determined with binding force the boundary line between Cambodia and Thailand. In a dispute concerned only with sovereignty over the promontory of Preah Vihear, the Court concluded that that promontory, extending in the north to the Annex I map line but not beyond it, was under Cambodian sovereignty. That was the issue which was in dispute in 1962 and which the Court considers to be at the heart of the present dispute over interpretation of the 1962 Judgment.

      • Thailand was under an obligation to withdraw its forces from the territory of the promontory of Preah Vihear.
      • Interestingly, Thailand had argued that, in deciding upon the request for interpretation, the Court must consider the practice of the two States in the period after the 1962 Judgment. The Court disagreed in strong terms, finding, “A judgment of the Court cannot be equated to a treaty, an instrument which derives its binding force and content from the consent of the contracting States and the interpretation of which may be affected by the subsequent conduct of those States, as provided by the principle stated in Article 31, paragraph 3 (b), of the 1969 Vienna Convention on the Law of Treaties.”
    • Finally, the Parties have a duty to settle any dispute between them by peaceful means.

    Because it refused to clarify whether the line shown on the Annex 1 map constitutes the frontier between the Parties, the Court was unable to put an end to a long-lasting dispute between Cambodia and Thailand. On the other hand, this question was not before the Court in 1962, and it was not decided with binding force but merely included in the reasoning of the Judgment. The Court had found this claim inadmissible as a new claim, although this is not explicitly stated in the 1962 Judgment. If the 2013 Court had provided an interpretation on this point, it would have substituted itself for the 1962 Court by adding a question which was not decided at that time in the operative part. In effect, this aspect of Cambodia’s request amounted to a request for revision. Thailand’s behavior could also be criticized as hardly meeting the standard of good faith required in the implementation of the judgments of the principal judicial organ of the United Nations.

    More generally, greater clarity in the drafting of judgments could prevent exacerbation of existing disputes in future cases. The Preah Vihear case demonstrates how things may go wrong when expressions in the judgment are susceptible to more than one interpretation by the parties. Nonetheless, the Court’s judgment on interpretation does not seem to have surprised either of the two litigant States and has been fairly positively accepted. As noted by one commentator for the blog Siam Voices “[o]n the surface, a lot of tension has been diffused today.”

    This is the hope of the world community. In Sanskrit, Preah means “sacred” and Vihear means “shrine”. While the Temple is sacred for both nations, thus provoking this long-running dispute, peace is more sacred.

     

     

     

  • 0

    “The City and the City” and Public International Law

    “The City and the City” and Public International Law

    City and CityThe City and the City. It is, at its core, a novel about jurisdiction, and its setting is one of Miéville’s most fascinating creations. Miéville himself is no stranger to international law, being the author of Between Equal Rights: A Marxist Theory of International Law (2005). His novel demonstrates an unsurprising interest with the possibilities of law and its relationship to society and culture.

    Superficially, The City and the City is a police procedural. In Besźel, a declining city-state somewhere in Eastern Europe, inspector Tyador Borlú finds a murdered woman. The suspicion is she was murdered in the neighbouring city-state of Ul Qoma. The extraordinary part of the novel is the relationship between these two cities. They are legally separate sovereign nations occupying the same physical space. While some “total” streets or districts belong entirely to one nation or the other, many are “crosshatched”. In these areas the two cities physically coexist alongside each other but legally their citizens may not interact, nor in any manner acknowledge each other’s existence, nor respond to events occurring in the “other” city. This difficulty is managed by the cultural practice of “unseeing” those things one is not legally entitled to see. (Given a moment’s thought this is less implausible than many speculative or weird fiction premises. Most of us unsee things of greater and lesser importance in our urban environment we find inconvenient to acknowledge: the homeless, the mentally disturbed, those collecting for charity, tedious acquaintances, etc.)

    In Besźel and Ul Qoma, when illicit interaction occurs across the legal and cultural boundary between the cities it is called “breach” – and it is a crime. At its most trivial, it is momentarily seeing something one should not; at its most serious it involves physical contact. If you live in Besźel but the house next door is in Ul Quoma, throwing something into your neighbour’s back yard is breach irrespective of whether what you throw is drugs, or a hammer, or garbage. Inspector Borlú, in a maudlin moment, commits a minor, untraceable form of breach by staring at the elevated railway that passes his house – but which he may not see because it is in Ul Quoma. These crimes are dealt with by a sinister agency outside the police – an agency also called Breach. The principal sanction for breaching, it seems, is disappearance. Those taken by Breach are not seen again.

    There is only one legal border crossing between the two cities, a set of shared check-points where one may pass into (and see) the other city which is otherwise constantly around one but deliberately unseen. Smuggling across this legal border is not breach, though it may otherwise involve a crime in both cities. Miéville creates a witty vocabulary to describe this legal situation. The same physical street may contain a very different district in each city and will certainly have a different name: these distinct but co-located streets are said to be “topplegangers” and the buildings in them which legally exist in different cities are “grosstopically” adjacent.

    So what does the setting of this novel say to public international lawyers? The obvious legal-historical parallels of divided cities (Berlin, Jerusalem, etc) or officially bilingual cities with duplicate street signs are scoffed at by the characters themselves. The ideas being played with by Miéville are broader than that. First, the novel obviously says something about the coexistence of sovereigns and the way states are both legal realities an act of collective imagination. In Brunée and Toope’s terms law here is portrayed as an interactional and socially collaborative enterprise. The border between the two cities exists only because the citizens on both sides will and enact its existence, and their elaborate non-interactions (which are of course a form of interaction) reinforce this social rule and legal norm. From an Allottian perspective, we have here a case of law shaping social reality (the legal constitution impacting on the real constitution of society), or perhaps vice versa.

    We might, however, think that any parallels with international law are readily overstated. After all, an independent agency, Breach, polices this border. Thus, the legal world portrayed in the novel does not suffer from the “Austinian handicap” of public international law. Here we have a command that is obviously backed by a sanction. At the same time, however, it’s made clear that the resources of Breach are, like those of a superpower or terrorist organization, ultimately limited. Breach is effective because the rules are generally obeyed without sanction and in a crisis Breach’s ability to maintain order relies on the tacit cooperation both cities’ citizenry.

    Further, while seeming at first a completely extra-legal agency engaging in a species of rendition or enforced disappearance, Breach is in some ways a quaintly legalistic organisation. Its legitimacy ultimately rests on a delegated authority from the two cities’ “oversight committee” (a tiny international organisation that manages certain joint resources). Breach’s sphere of authority is also circumscribed by law. It can only act in situations where the omnipresent border between the two cities has actually been violated. While its powers are extreme and extra-legal, the cases in which they can be deployed are tightly limited. (Although the question of who shall guard the guards themselves is clearly raised by the end of the novel.) In Breach we thus see hints of the war on terror and recent constitutional and international law debates about who holds the power to decide the exception.

    Finally, two major turning points in the story involve a gunshot being fired across a border in a fairly clear nod to the classic (or clichéd) starting point to a lecture on jurisdiction.

    I’ve only really scratched the surface here, and haven’t even ventured into the possibility that the plot centers on: that there is, concealed in spaces between the two cities, a third city entirely. It’s a fascinating novel which could only really be faulted for a somewhat rushed final exposition of whodunit and why.

  • 0

    Security Council Requires Scheduled Destruction of Syria’s Chemical Weapons, Unanimously Adopting Resolution 2118 (2013) – S/RES/2118

    Security Council Requires Scheduled Destruction of Syria’s Chemical Weapons, Unanimously Adopting Resolution 2118 (2013)

    Security Council Requires Scheduled Destruction of Syria's Chemical Weapons, Unanimously Adopting Resolution 2118 (2013)The full text of Security Council resolution 2118 (2013) reads as follows:

    The Security Council,

    Recalling the Statements of its President of 3 August 2011, 21 March 2012, 5 April 2012, and its resolutions 1540 (2004), 2042 (2012) and 2043 (2012),

    Reaffirming its strong commitment to the sovereignty, independence and territorial integrity of the Syrian Arab Republic,

    Reaffirming that the proliferation of chemical weapons, as well as their means of delivery, constitutes a threat to international peace and security,

    Recalling that the Syrian Arab Republic on 22 November 1968 acceded to the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare, signed at Geneva on 17 June 1925,

    Noting that on 14 September 2013, the Syrian Arab Republic deposited with the Secretary-General its instrument of accession to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (Convention) and declared that it shall comply with its stipulations and observe them faithfully and sincerely, applying the Convention provisionally pending its entry into force for the Syrian Arab Republic,

    Welcoming the establishment by the Secretary-General of the United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic (the Mission) pursuant to General Assembly resolution 42/37 C (1987) of 30 November 1987, and reaffirmed by resolution 620 (1988) of 26 August 1988, and expressing appreciation for the work of the Mission,

    Acknowledging the report of 16 September 2013 (S/2013/553) by the Mission, underscoring the need for the Mission to fulfil its mandate, and emphasizing that future credible allegations of chemical weapons use in the Syrian Arab Republic should be investigated,

    Deeply outraged by the use of chemical weapons on 21 August 2013 in Rif Damascus, as concluded in the Mission’s report, condemning the killing of civilians that resulted from it, affirming that the use of chemical weapons constitutes a serious violation of international law, and stressing that those responsible for any use of chemical weapons must be held accountable,

    Recalling the obligation under resolution 1540 (2004) that all States shall refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use weapons of mass destruction, including chemical weapons and their means of delivery,

    Welcoming the Framework for Elimination of Syrian Chemical Weapons dated 14 September 2013, in Geneva, between the Russian Federation and the United States of America (S/2013/565), with a view to ensuring the destruction of the Syrian Arab Republic’s chemical weapons programme in the soonest and safest manner, and expressing its commitment to the immediate international control over chemical weapons and their components in the Syrian Arab Republic,

    Welcoming the decision of the Executive Council of the Organization for the Prohibition of Chemical Weapons (OPCW) of 27 September 2013 establishing special procedures for the expeditious destruction of the Syrian Arab Republic’s chemical weapons programme and stringent verification thereof, and expressing its determination to ensure the destruction of the Syrian Arab Republic’s chemical weapons program according to the timetable contained in the OPCW Executive Council decision of 27 September 2013,

    Stressing that the only solution to the current crisis in the Syrian Arab Republic is through an inclusive and Syrian-led political process based on the Geneva Communiqué of 30 June 2012, and emphasising the need to convene the international conference on Syria as soon as possible,

    Determining that the use of chemical weapons in the Syrian Arab Republic constitutes a threat to international peace and security,

    Underscoring that Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Council’s decisions,

    “1. Determines that the use of chemical weapons anywhere constitutes a threat to international peace and security;

    “2. Condemns in the strongest terms any use of chemical weapons in the Syrian Arab Republic, in particular the attack on 21 August 2013, in violation of international law;

    “3. Endorses the decision of the OPCW Executive Council 27 September 2013, which contains special procedures for the expeditious destruction of the Syrian Arab Republic’s chemical weapons programme and stringent verification thereof and calls for its full implementation in the most expedient and safest manner;

    “4. Decides that the Syrian Arab Republic shall not use, develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to other States or non-State actors;

    “5. Underscores that no party in Syria should use, develop, produce, acquire, stockpile, retain, or transfer chemical weapons;

    “6. Decides that the Syrian Arab Republic shall comply with all aspects of the decision of the OPCW Executive Council of 27 September 2013 (Annex I);

    “7. Decides that the Syrian Arab Republic shall cooperate fully with the OPCW and the United Nations, including by complying with their relevant recommendations, by accepting personnel designated by the OPCW or the United Nations, by providing for and ensuring the security of activities undertaken by these personnel, by providing these personnel with immediate and unfettered access to and the right to inspect, in discharging their functions, any and all sites, and by allowing immediate and unfettered access to individuals that the OPCW has grounds to believe to be of importance for the purpose of its mandate, and decides that all parties in Syria shall cooperate fully in this regard;

    “8. Decides to authorize an advance team of United Nations personnel to provide early assistance to OPCW activities in Syria, requests the Director-General of the OPCW and the Secretary-General to closely cooperate in the implementation of the Executive Council decision of 27 September 2013 and this resolution, including through their operational activities on the ground, and further requests the Secretary-General, in consultation with the Director-General of the OPCW and, where appropriate, the Director-General of the World Health Organization, to submit to the Council within 10 days of the adoption of this resolution recommendations regarding the role of the United Nations in eliminating the Syrian Arab Republic’s chemical weapons program;

    “9. Notes that the Syrian Arab Republic is a party to the Convention on the Privileges and Immunities of the United Nations, decides that OPCW-designated personnel undertaking activities provided for in this resolution or the decision of the OPCW Executive Council of 27 September 2013 shall enjoy the privileges and immunities contained in the Verification Annex, Part II(B) of the Chemical Weapons Convention, and calls on the Syrian Arab Republic to conclude modalities agreements with the United Nations and the OPCW;

    “10. Encourages Member States to provide support, including personnel, technical expertise, information, equipment, and financial and other resources and assistance, in coordination with the Director-General of the OPCW and the Secretary-General, to enable the OPCW and the United Nations to implement the elimination of the Syrian Arab Republic’s chemical weapons programme, and decides to authorize Member States to acquire, control, transport, transfer and destroy chemical weapons identified by the Director-General of the OPCW, consistent with the objective of the Chemical Weapons Convention, to ensure the elimination of the Syrian Arab Republic’s chemical weapons programme in the soonest and safest manner;

    “11. Urges all Syrian parties and interested Member States with relevant capabilities to work closely together and with the OPCW and the United Nations to arrange for the security of the monitoring and destruction mission, recognizing the primary responsibility of the Syrian Government in this regard;

    “12. Decides to review on a regular basis the implementation in the Syrian Arab Republic of the decision of the OPCW Executive Council of 27 September 2013 and this resolution, and requests the Director-General of the OPCW to report to the Security Council, through the Secretary-General, who shall include relevant information on United Nations activities related to the implementation of this resolution, within 30 days and every month thereafter, and requests further the Director-General of the OPCW and the Secretary-General to report in a coordinated manner, as needed, to the Security Council, non-compliance with this resolution or the OPCW Executive Council decision of 27 September 2013;

    “13. Reaffirms its readiness to consider promptly any reports of the OPCW under Article VIII of the Chemical Weapons Convention, which provides for the referral of cases of non-compliance to the United Nations Security Council;

    “14. Decides that Member States shall inform immediately the Security Council of any violation of resolution 1540(2004), including acquisition by non-State actors of chemical weapons, their means of delivery and related materials in order to take necessary measures therefore;

    “15. Expresses its strong conviction that those individuals responsible for the use of chemical weapons in the Syrian Arab Republic should be held accountable;

    “16. Endorses fully the Geneva Communiqué of 30 June 2012 (Annex II), which sets out a number of key steps beginning with the establishment of a transitional governing body exercising full executive powers, which could include members of the present Government and the opposition and other groups and shall be formed on the basis of mutual consent;

    “17. Calls for the convening, as soon as possible, of an international conference on Syria to implement the Geneva Communiqué, and calls upon all Syrian parties to engage seriously and constructively at the Geneva Conference on Syria, and underscores that they should be fully representative of the Syrian people and committed to the implementation of the Geneva Communiqué and to the achievement of stability and reconciliation;

    “18. Reaffirms that all Member States shall refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, and calls upon all Member States, in particular Member States neighbouring the Syrian Arab Republic, to report any violations of this paragraph to the Security Council immediately;

    “19. Demands that non-State actors not develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, and calls upon all Member States, in particular Member States neighbouring the Syrian Arab Republic, to report any actions inconsistent with this paragraph to the Security Council immediately;

    “20. Decides that all Member States shall prohibit the procurement of chemical weapons, related equipment, goods and technology or assistance from the Syrian Arab Republic by their nationals, or using their flagged vessels or aircraft, whether or not originating in the territory of the Syrian Arab Republic;

    “21. Decides, in the event of non-compliance with this resolution, including unauthorized transfer of chemical weapons, or any use of chemical weapons by anyone in the Syrian Arab Republic, to impose measures under Chapter VII of the United Nations Charter;

    “22. Decides to remain actively seized of the matter.

    Annex I

    OPCW Executive Council Decision

    Decision on destruction of Syrian chemical weapons

    “The Executive Council,

    “Recalling that following its thirty-second Meeting, 27 March 2013, the Chairperson of the Executive Council (hereinafter “the Council”) issued a statement (EC-M-32/2/Rev.1, dated 27 March 2013) expressing “deep concern that chemical weapons may have been used in the Syrian Arab Republic”, and underlining that “the use of chemical weapons by anyone under any circumstances would be reprehensible and completely contrary to the legal norms and standards of the international community”;

    “Recalling also that the third Review Conference (RC-3/3*, 19 April 2013) expressed “deep concern that chemical weapons may have been used in the Syrian Arab Republic and underlined that use of chemical weapons by anyone under any circumstances would be reprehensible and completely contrary to the legal norms and standards of the international community”;

    “Noting the “Report on the Alleged Use of Chemical Weapons in the Ghouta area of Damascus on 21 August 2013,” (S/2013/553, dated 16 September 2013) prepared by the United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic, dated 16 September 2013, which concludes that “chemical weapons have been used in the ongoing conflict between the parties in the Syrian Arab Republic, also against civilians, including children, on a relatively large scale”;

    “Condemning in the strongest possible terms the use of chemical weapons;

    “Welcoming the Framework for Elimination of Syrian Chemical Weapons agreed upon by the United States and the Russian Federation on 14 September 2013
    (EC-M-33/NAT.1, dated 17 September 2013);

    “Noting also that on 12 September 2013, in its communication to the Secretary-General of the United Nations, the Syrian Arab Republic notified its intention to apply the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on their Destruction (hereinafter “the Convention”) provisionally;

    “Noting further that on 14 September 2013, the Syrian Arab Republic deposited with the Secretary-General of the United Nations its instrument of accession to the Convention and declared that it shall comply with its stipulations and observe them faithfully and sincerely, applying the Convention provisionally pending its entry into force for the Syrian Arab Republic, which was notified to all States Parties by the depositary on the same date (C.N.592.2013.TREATIES-XXVI.3), and taking into account that the depositary received no communications to the contrary from the States Parties with regard to this declaration;

    “Noting further that the Convention enters into force for the Syrian Arab Republic on 14 October 2013;

    “Recognizing the extraordinary character of the situation posed by Syrian chemical weapons and determined to ensure that the activities necessary for the destruction of the Syrian chemical weapons programme start immediately pending the formal entry into force of the Convention with respect to the Syrian Arab Republic, and are conducted in the most rapid and safe manner;

    “Recognizing also the invitation of the Government of the Syrian Arab Republic to receive immediately a technical delegation from the OPCW and to cooperate with the OPCW in accordance with the provisional application of the Convention prior to its entry into force for the Syrian Arab Republic, and noting the designation by the Syrian Arab Republic to the Technical Secretariat (hereinafter “the Secretariat”) of its National Authority;

    “Emphasising that the provisional application of the Convention gives immediate effect to its provisions with respect to the Syrian Arab Republic;

    “Noting further that the Syrian Arab Republic submitted on 19 September 2013 the detailed information, including names, types and quantities of its chemical weapons agents, types of munitions and location and form of storage, production, and research and development facilities;

    “Noting further that pursuant to paragraph 36 of Article VIII of the Convention, the Council, following its consideration of doubts or concerns regarding compliance and cases of non-compliance, shall, in cases of particular gravity and urgency, bring the issue or matter, including relevant information and conclusions, directly to the attention of the United Nations General Assembly and the United Nations Security Council;

    “Taking into account the Agreement Concerning the Relationship between the United Nations and the Organisation for the Prohibition of Chemical Weapons of 17 October 2000;

    “Strongly urging all remaining States not Party to the Convention to ratify or accede to it as a matter of urgency and without preconditions, in the interests of enhancing their own national security, as well as contributing to global peace and security; and

    “Recalling that, pursuant to paragraph 8 of Article IV and paragraph 10 of Article V of the Convention, a State acceding to the Convention after 2007 shall destroy its chemical weapons and its chemical weapons production facilities as soon as possible, and the Council shall determine the “order of destruction and procedures for stringent verification” of such destruction;

    “Hereby:

    “1. Decides that the Syrian Arab Republic shall:

    (a) not later than 7 days after the adoption of this decision, submit to the Secretariat further information, to supplement that provided on 19 September 2013, on the chemical weapons as defined in paragraph1 of Article II of the Convention that the Syrian Arab Republic owns or possesses, or has under its jurisdiction or control, in particular:

    (i) the chemical name and military designator of each chemical in its chemical weapons stockpile, including precursors and toxins, and quantities thereof;

    (ii) the specific type of munitions, sub-munitions and devices in its chemical weapons stockpile, including specific quantities of each type that are filled and unfilled; and

    (iii)the location of all of its chemical weapons, chemical weapons storage facilities, chemical weapons production facilities, including mixing and filling facilities and chemical weapons research and development facilities, providing specific geographic coordinates;

    (b) not later than 30 days after the adoption of this decision, submit to the Secretariat the declaration required by Article III of the Convention;

    (c) complete the elimination of all chemical weapons material and equipment in the first half of 2014, subject to the detailed requirements, including intermediate destruction milestones, to be decided by the Council not later than 15 November 2013;

    (d) complete as soon as possible and in any case not later than 1 November 2013, the destruction of chemical weapons production and mixing/filling equipment;

    (e) cooperate fully with all aspects of the implementation of this decision, including by providing the OPCW personnel with the immediate and unfettered right to inspect any and all sites in the Syrian Arab Republic;

    (f) designate an official as the main point of contact for the Secretariat and provide him or her with the authority necessary to ensure that this decision is fully implemented.

    “2. Decides further that the Secretariat shall:

    (a) make available to all States Parties, within five days of its receipt, any information or declaration referred to in this decision, which shall be handled in accordance with the Annex to the Convention on the Protection of Confidential Information;

    (b) as soon as possible and in any case not later than 1 October 2013, initiate inspections in the Syrian Arab Republic pursuant to this decision;

    (c) inspect not later than 30 days after the adoption of this decision, all facilities contained in the list referred to in paragraph 1 (a) above;

    (d) inspect as soon as possible any other site identified by a State Party as having been involved in the Syrian chemical weapons programme, unless deemed unwarranted by the Director-General, or the matter resolved through the process of consultations and cooperation;

    (e) be authorized to hire, on a short-term basis, qualified inspectors and other technical experts and to rehire, on a short-term basis, inspectors, other technical experts and such other personnel as may be required whose term of service has recently expired, in order to ensure efficient and effective implementation of this decision in accordance with paragraph 44 of Article VIII of the Convention; and

    (f) report to the Council on a monthly basis on implementation of this decision including progress achieved by the Syrian Arab Republic in meeting the requirements of this decision and the Convention, activities carried out by the Secretariat with respect to the Syrian Arab Republic and its needs for any supplementary resources, particularly technical and personnel resources.

    “3. Decides further:

    (a) to consider, on an urgent basis, the funding mechanisms for activities carried out by the Secretariat with respect to the Syrian Arab Republic, and to call upon all States Parties in a position to do so to provide voluntary contributions for activities carried out in the implementation of this decision;

    (b) to meet within 24 hours if the Director-General reports delay by the Syrian Arab Republic in meeting the requirements of this decision or the Convention, including, inter alia, the cases referred to in paragraph 7 of Part II of the Annex to the Convention on Implementation and Verification, or a lack of cooperation in the Syrian Arab Republic or another problem that has arisen with regard to the implementation of this decision and at that meeting to consider whether to bring the matter, including relevant information and conclusions, to the attention of the United Nations Security Council in accordance with paragraph 36 of Article VIII of the Convention;

    (c) to remain seized of the matter; and

    (d) to recognize that this decision is made due to the extraordinary character of the situation posed by Syrian chemical weapons and does not create any precedent for the future.

    Annex II

    Action Group for Syria Final Communiqué

    30 June 2012

    “1. On 30 June 2012, the Secretaries-General of the United Nations and the League of Arab States, the Ministers for Foreign Affairs of China, France, the Russian Federation, the United Kingdom of Great Britain and Northern Ireland, the United States of America, Turkey, Iraq (Chair of the Summit of the League of Arab States), Kuwait (Chair of the Council of Foreign Ministers of the League of Arab States) and Qatar (Chair of the Arab Follow-up Committee on Syria of the League of Arab States) and the High Representative of the European Union for Foreign Affairs and Security Policy met at the United Nations Office at Geneva as the Action Group for Syria, chaired by the Joint Special Envoy of the United Nations and the League of Arab States to Syria.

    “2. The members of the Action Group came together out of grave alarm at the situation in the Syrian Arab Republic. They strongly condemn the continued and escalating killing, destruction and human rights abuses. They are deeply concerned at the failure to protect civilians, the intensification of the violence, the potential for even deeper conflict in the country and the regional dimensions of the problem. The unacceptable nature and magnitude of the crisis demands a common position and joint international action.

    “3. The members of the Action Group are committed to the sovereignty, independence, national unity and territorial integrity of the Syrian Arab Republic. They are determined to work urgently and intensively to bring about an end to the violence and human rights abuses, and to facilitate the launch of a Syrian-led political process leading to a transition that meets the legitimate aspirations of the Syrian people and enables them independently and democratically to determine their own future.

    “4. In order to secure these common objectives, the members of the Action Group (a) identified steps and measures by the parties to secure the full implementation of the six-point plan and Security Council resolutions 2042 (2012) and 2043 (2012), including an immediate cessation of violence in all its forms; (b) agreed on principles and guidelines for a political transition that meets the legitimate aspirations of the Syrian people; and (c) agreed on actions that they would take to implement the objectives in support of the Joint Special Envoy’s efforts to facilitate a Syrian-led political process. They are convinced that this can encourage and support progress on the ground and will help to facilitate and support a Syrian-led transition.

    Identified steps and measures by the parties to secure the full implementation of the six-point plan and Security Council resolutions 2042 (2012) and 2043 (2012), including an immediate cessation of violence in all its forms

    “5. The parties must fully implement the six-point plan and Security Council resolutions 2042 (2012) and 2043 (2012). To that end:

    (a) All parties must recommit to a sustained cessation of armed violence in all its forms and to the implementation of the six-point plan immediately and without waiting for the actions of others. The Government and armed opposition groups must cooperate with the United Nations Supervision Mission in the Syrian Arab Republic (UNSMIS), with a view to furthering the implementation of the plan in accordance with the Mission’s mandate;

    (b) A cessation of armed violence must be sustained, with immediate, credible and visible actions by the Government of the Syrian Arab Republic to implement the other items of the six-point plan, including:

    (i) Intensification of the pace and scale of release of arbitrarily detained persons, including especially vulnerable categories of persons, and persons involved in peaceful political activities; the provision, without delay and through appropriate channels, of a list of all places in which such persons are being detained; the immediate organization of access to such locations; and the provision, through appropriate channels, of prompt responses to all written requests for information, access or release regarding such persons;

    (ii) Ensuring freedom of movement throughout the country for journalists and a non-discriminatory visa policy for them;

    (iii)Respecting freedom of association and the right to demonstrate peacefully, as legally guaranteed;

    (c) In all circumstances, all parties must show full respect for the safety and security of UNSMIS and fully cooperate with and facilitate the Mission in all respects;

    (d) In all circumstances, the Government must allow immediate and full humanitarian access by humanitarian organizations to all areas affected by the fighting. The Government and all parties must enable the evacuation of the wounded, and all civilians who wish to leave must be enabled to do so. All parties must fully adhere to their obligations under international law, including in relation to the protection of civilians.

    Agreed principles and guidelines for a Syrian-led transition

    “6. The members of the Action Group agreed on the principles and guidelines for a Syrian-led transition set out below.

    “7. Any political settlement must deliver to the people of the Syrian Arab Republic a transition that:

    (a) Offers a perspective for the future that can be shared by all in the Syrian Arab Republic;

    (b) Establishes clear steps according to a firm timetable towards the realization of that perspective;

    (c) Can be implemented in a climate of safety for all and of stability and calm;

    (d) Is reached rapidly without further bloodshed and violence and is credible.

    “8. Perspective for the future. The aspirations of the people of the Syrian Arab Republic have been clearly expressed by the wide range of Syrians consulted. There is an overwhelming wish for a State that:

    (a) Is genuinely democratic and pluralistic, giving space to established and newly emerging political actors to compete fairly and equally in elections. This also means that the commitment to multiparty democracy must be a lasting one, going beyond an initial round of elections;

    (b) Complies with international standards on human rights, the independence of the judiciary, accountability of those in Government and the rule of law. It is not enough just to enunciate such a commitment. There must be mechanisms available to the people to ensure that these commitments are kept by those in authority;

    (c) Offers equal opportunities and chances for all. There is no room for sectarianism or discrimination on ethnic, religious, linguistic or any other grounds. Numerically smaller communities must be assured that their rights will be respected.

    “9. Clear steps in the transition. The conflict in the Syrian Arab Republic will end only when all sides are assured that there is a peaceful way towards a common future for all in the country. It is therefore essential that any settlement provide for clear and irreversible steps in the transition according to a fixed time frame. The key steps in any transition include:

    (a) The establishment of a transitional governing body that can establish a neutral environment in which the transition can take place, with the transitional governing body exercising full executive powers. It could include members of the present Government and the opposition and other groups and shall be formed on the basis of mutual consent;

    (b) It is for the Syrian people to determine the future of the country. All groups and segments of society in the Syrian Arab Republic must be enabled to participate in a national dialogue process. That process must be not only inclusive but also meaningful. In other words, its key outcomes must be implemented;

    (c) On that basis, there can be a review of the constitutional order and the legal system. The result of constitutional drafting would be subject to popular approval;

    (d) Upon establishment of the new constitutional order, it will be necessary to prepare for and conduct free and fair multiparty elections for the new institutions and offices that have been established;

    (e) Women must be fully represented in all aspects of the transition.

    “10. Safety, stability and calm. Any transition involves change. However, it is essential to ensure that the transition can be implemented in a way that ensures the safety of all in an atmosphere of stability and calm. This requires:

    (a) Consolidation of full calm and stability. All parties must cooperate with the transitional governing body to ensure the permanent cessation of violence. This includes completion of withdrawals and addressing the issue of the disarmament, demobilization and reintegration of armed groups;

    (b) Effective steps to ensure that vulnerable groups are protected and that immediate action is taken to address humanitarian issues in areas of need. It is also necessary to ensure that the release of the detained is completed rapidly;

    (c) Continuity of governmental institutions and qualified staff. Public services must be preserved or restored. This includes the military forces and security services. However, all governmental institutions, including the intelligence services, have to perform according to human rights and professional standards and operate under a leadership that inspires public confidence, under the control of the transitional governing body;

    (d) Commitment to accountability and national reconciliation. Accountability for acts committed during the present conflict must be addressed. There also needs to be a comprehensive package for transitional justice, including compensation or rehabilitation for victims of the present conflict, steps towards national reconciliation and forgiveness.

    “11. Rapid steps to come to a credible political agreement. It is for the people of the Syrian Arab Republic to come to a political agreement, but time is running out. It is clear that:

    (a) The sovereignty, independence, unity and territorial integrity of the Syrian Arab Republic must be respected;

    (b) The conflict must be resolved through peaceful dialogue and negotiation alone. Conditions conducive to a political settlement must now be put in place;

    (c) There must be an end to the bloodshed. All parties must recommit themselves credibly to the six-point plan. This must include a cessation of armed violence in all its forms and immediate, credible and visible actions to implement points 2 to 6 of the six-point plan;

    (d) All parties must now engage genuinely with the Joint Special Envoy. The parties must be prepared to put forward effective interlocutors to work expeditiously towards a Syrian-led settlement that meets the legitimate aspirations of the people. The process must be fully inclusive in order to ensure that the views of all segments of Syrian society are heard in shaping the political settlement for the transition;

    (e) The organized international community, including the members of the Action Group, stands ready to offer significant support for the implementation of an agreement reached by the parties. This may include an international assistance presence under a United Nations mandate if requested. Significant funds will be available to support reconstruction and rehabilitation.

    Agreed actions

    “12. Agreed actions that the members of the Group will take to implement the above in support of the Joint Special Envoy’s efforts to facilitate a Syrian-led political process are as follows:

    (a) Action Group members will engage as appropriate, and apply joint and sustained pressure on, the parties in the Syrian Arab Republic to take the steps and measures outlined in paragraph 5 above;

    (b) Action Group members are opposed to any further militarization of the conflict;

    (c) Action Group members emphasize to the Government of the Syrian Arab Republic the importance of the appointment of an effective empowered interlocutor, when requested by the Joint Special Envoy to do so, to work on the basis of the six point plan and the present communiqué;

    (d) Action Group members urge the opposition to increase cohesion and to be in a position to ensure effective representative interlocutors to work on the basis of the six-point plan and the present communiqué;

    (e) Action Group members will give full support to the Joint Special Envoy and his team as they immediately engage the Government and the opposition, and will consult widely with Syrian society, as well as other international actors, to further develop the way forward;

    (f) Action Group members would welcome the further convening by the Joint Special Envoy of a meeting of the Action Group, should he deem it necessary to review the concrete progress taken on all points agreed in the present communiqué and to determine what further and additional steps and actions are needed from the Action Group to address the crisis. The Joint Special Envoy will also keep the United Nations and the League of Arab States informed.”

  • 0

    FRAMEWORK FOR ELIMINATION OF SYRIAN CHEMICAL WEAPONS (United States and the Russian Federation – September 14,2013)

    FRAMEWORK FOR ELIMINATION OF SYRIAN CHEMICAL WEAPONS (United States and the Russian Federation – September 14,2013)FRAMEWORK FOR ELIMINATION OF SYRIAN CHEMICAL WEAPONS

    Taking into account the decision of the Syrian Arab Republic to accede to the Chemical Weapons Convention and the commitment of the Syrian authorities to provisionally apply the Convention prior to its entry into force, the United States and the Russian Federation express their joint determination to ensure the destruction of the Syrian chemical weapons program (CW) in the soonest and safest manner.

    For this purpose, the United States and the Russian Federation have committed to prepare and submit in the next few days to the Executive Council of the OPCW a draft decision setting down special procedures for expeditious destruction of the Syrian chemical weapons program and stringent verification thereof. The principles on which this decision should be based, in the view of both sides, are set forth in Annex A. The United States and the Russian Federation believe that these extraordinary procedures are necessitated by the prior use of these weapons in Syria and the volatility of the Syrian civil war.

    The United States and the Russian Federation commit to work together towards prompt adoption of a UN Security Council resolution that reinforces the decision of the OPCW Executive Council. This resolution will also contain steps to ensure its verification and effective implementation and will request that the UN Secretary-General, in consultation with the OPCW, submit recommendations to the UN Security Council on an expedited basis regarding the UN’s role in eliminating the Syrian chemical weapons program.

    The United States and the Russian Federation concur that this UN Security Council resolution should provide for review on a regular basis the implementation in Syria of the decision of the Executive Council of the OPCW, and in the event of non-compliance, including unauthorized transfer, or any use of chemical weapons by anyone in Syria, the UN Security Council should impose measures under Chapter VII of the UN Charter.

    The proposed joint US-Russian OPCW draft decision supports the application of Article VIII of the Chemical Weapons Convention, which provides for the referral of any cases of non­compliance to the United Nations General Assembly and the United Nations Security Council.

    In furtherance of the objective to eliminate the Syrian chemical weapons program, the United States and the Russian Federation have reached a shared assessment of the amount and type of chemical weapons involved, and are committed to the immediate international control over chemical weapons and their components in Syria. The United States and the Russian Federation expect Syria to submit, within a week, a comprehensive listing, including names, types, and quantities of its chemical weapons agents, types of munitions, and location and form of storage, production, and research and development facilities.

    We further determined that the most effective control of these weapons may be achieved by removal of the largest amounts of weapons feasible, under OPCW supervision, and their destruction outside of Syria, if possible. We set ambitious goals for the removal and destruction of all categories of CW related materials and equipment with the objective of completing such removal and destruction in the first half of 2014. In addition to chemical weapons, stocks of chemical weapons agents, their precursors, specialized CW equipment, and CW munitions themselves, the elimination process must include the facilities for the development and production of these weapons. The views of both sides in this regard are set forth in Annex B.

    The United States and the Russian Federation have further decided that to achieve accountability for their chemical weapons, the Syrians must provide the OPCW, the UN, and other supporting personnel with the immediate and unfettered right to inspect any and all sites in Syria. The extraordinary procedures to be proposed by the United States and the Russian Federation for adoption by the OPCW Executive Council and reinforced by a UN Security Council resolution, as described above, should include a mechanism to ensure this right.

    Under this framework, personnel under both the OPCW and UN mandate should be dispatched as rapidly as possible to support control, removal, and destruction of Syria’s chemical weapons capabilities.

    The United States and the Russian Federation believe that the work of the OPCW and the UN will benefit from participation of the experts of the P5 countries.

    The United States and the Russian Federation strongly reiterate their position on Syria as reflected in the Final Communique of the G-8 Summit in Northern Ireland in June 2013, especially as regards chemical weapons.

    The two sides intend to work closely together, and with the OPCW, the UN, all Syrian parties, and with other interested member states with relevant capabilities to arrange for the security of the monitoring and destruction mission, recognizing the primary responsibility of the Syrian Government in this regard.

    The United States and the Russian Federation note that there are details in furtherance of the execution of this framework that need to be addressed on an expedited basis in the coming days and commit to complete these details, as soon as practicable, understanding that time is of the essence given the crisis in Syria.

    Annex A
    Principles for Decision Document by OPCW Executive Council
    1. The decision should be based on para 8. Art. IV and para. 10 of Art V of the CWC.
    2. The decision should address the extraordinary character of the situation with the Syrian chemical weapons.
    3. The decision should take into account the deposit by Syria of the instrument of accession to the CWC.
    4. The decision should provide for the easy accessibility for States Parties of the information submitted by Syria.
    5. The decision should specify which initial information Syria shall submit to the OPCW Technical Secretariat in accordance with a tightly fixed schedule and also specifies an early date for submission of the formal CWC declaration.
    6. The decision should oblige Syria to cooperate fully on all aspects of its implementation.
    7. The decision should address a schedule for the rapid destruction of Syrian chemical weapons capabilities. This schedule should take into account the following target dates:
      1. Completion of initial OPCW on-site inspections of declared sites by November.
      2. Destruction of production and mixing/filling equipment by November.
      3. Complete elimination of all chemical weapons material and equipment in the first half of 2014. The shortest possible final deadline, as well as intermediate deadlines, for the destruction of Syrian chemical weapons capabilities should be included into the schedule.
    8. The decision should provide stringent special verification measures, beginning within a few days, including a mechanism to ensure the immediate and unfettered right to inspect any and all sites.
    9. The decision should address the issue of duties of the OPCW Technical Secretariat in this situation and its need for supplementary resources to implement the decision, particularly technical and personnel resources, and call upon states with relevant capacities to contribute to this end.
    10. The decision should refer to the provisions of the CWC obliging the Executive Council, in cases of non-compliance with the Convention, to bring the issues directly to the attention of the UN General Assembly and the UN Security Council.

     

    Annex B
    Joint Framework on Destruction of Syrian CW

    The Russian Federation and the United States of America agree on the need to achieve rapid elimination of Syria’s chemical weapons, thus reducing the threat posed to the people of Syria.

    They are each prepared to devote high-level attention and resources to support the monitoring and destruction mission of the OPCW, both directly and in cooperation with the United Nations and other States concerned. They agree to set an ambitious goal of eliminating the threat in a rapid and effective manner.

    Both parties agree that a clear picture of the state of Syrian chemical weapons could help advance a cooperative development of destruction options, including possible removal of chemical weapons outside of the Syrian territory. We agree on the importance of rapid destruction of the following categories:

    1. Production equipment
    2. Mixing and filling equipment
    3. Filled and unfilled weapons and delivery systems
    4. Chemical agents (unweaponized) and precursor chemicals. For these materials, they will pursue a hybrid approach, i.e., a combination of removal from Syria and destruction within Syria, depending upon site-specific conditions. They will also consider the possibility of consolidation and destruction in the coastal area of Syria.
    5. Material and equipment related to the research and development of chemical weapons

    The two parties agree to utilize the “universal matrix”, developed in the course of consultations by our two National Security Councils, as the basis for an actionable plan.

    They agree that the elimination of chemical weapons in Syria should be considered an urgent matter to be implemented within the shortest possible time period.

    The parties agree to set the following target dates:

    1. Completion of initial OPCW on-site inspections by November.
    2. Destruction of production and mixing/filling equipment by November.
    3. Complete elimination of all chemical weapons material and equipment in the first half of 2014.

    The Russian Federation and the United States will work together closely, including with the OPCW, the UN and Syrian parties to arrange for the security of the monitoring and destruction mission, noting the primary responsibility of the Syrian government in this regard.

  • 0

    Military force against Syria would be a reprisal rather than humanitarian intervention, but that doesn’t make it any more lawful

    Military force against Syria would be a reprisal rather than humanitarian intervention, but that doesn’t make it any more lawful

    Dr Shane Darcy is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway.

    The anticipated use of military force against Syria in reaction to the use of chemical weapons does not meet the permitted exceptions to the prohibition on the use of force under the United Nations Charter. Security Council authorisation has not been forthcoming, while self-defence is obviously not applicable. Although British MPs have blocked a United Kingdom military intervention, the United Kingdom government had relied up on humanitarian intervention as the legal basis to justify the use of force. The doctrine is controversial and as Dapo Akande has shown, it at best has weak legal standing in international law. But the type of limited military intervention envisaged bears all the hallmarks of a reprisal, rather than humanitarian intervention, and this concept is equally problematic in modern international law.

    Reprisals are a traditional means of law-enforcement, involving the unilateral use of force in response to breaches of international law. The Institut de Droit International defined reprisals involving the use of armed force in a resolution passed in 1934:

    Reprisals are measures of coercion, derogating from the ordinary rules of international law, decided and taken by a State, in response to wrongful acts committed against it, by another State, and intended to impose on it, by pressure exerted through injury, the return to legality.

     The purpose of military intervention against Syria seems to be both punitive and deterrent; to punish Syria using chemical weapons in breach of international law and to deter any further use.  Such military action would be prima facie unlawful, in that it fails to meet the terms of the United Nations Charter. But might it be lawful as an armed reprisal?

    International law has generally addressed two classes of reprisals as measures of self-help: armed reprisals involving the use of force short of war, and belligerent reprisals occurring during an armed conflict, taken in response to breaches of humanitarian law. Both have been traditionally governed by several customary international law requirements, including proportionality, last resort, temporariness, and authorisation at the highest level. Belligerent reprisals are not at issue here, because the United States is not a party to the conflict in Syria – in any event, such reprisals against military objectives are not prohibited, unlike those directed against civilians which are outlawed under the Geneva Conventions and Additional Protocol I.

    Armed reprisals are widely considered as contrary to international law, although the United Nations Charter does not make any specific reference to such a prohibition. During the drafting of the Charter, the United States delegate at San Francisco clarified the drafters’ intention “to state in the broadest terms an absolute all-inclusive prohibition; the phrase “or in any other manner” was designed to insure that there should be no loopholes”. A rapporteur confirmed that “the unilateral use of force or similar coercive measures is not authorised or admitted”. Practice since the adoption of the Charter has confirmed the unlawfulness of armed reprisals. In 1964, the Security Council adopted Resolution 188 concerning British military action in Yemen, in which it “condemns reprisals as incompatible with the purposes and principles of the United Nations”. The General Assembly’s 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States sets out that “[S]tates have a duty to refrain from acts of reprisal involving the use of force”.

    As I have detailed in a forthcoming book chapter, the widely-held view is that reprisals involving the use of force are thus unlawful, irrespective of whether the customary requirements such as proportionality or last resort are met. Nonetheless, scholars have often tried to revive the doctrine of reprisals as a justification for the use of force, most notably in the context of Israeli actions against its neighbours. The International Court of Justice has not made a unambiguous statement on the lawfulness of armed reprisals, having stated in Nuclear Weapons that they are “considered to be unlawful”. The majority of the Court was criticised in several of the separate opinions in the Oil Platforms case for failing to clarify the unlawfulness of reprisals involving the use of force. The International Law Commission considers that the reprisals prohibition has “acquired the status of a customary rule of international law”.

    The justification of reprisal has not been raised in any official statements concerning the legality of using force against Syria, despite the obvious parallels, and this perhaps reflects States’ recognition of their unlawfulness. Some commentators have drawn on the reprisals doctrine, to either justify or oppose the use of force outside the parameters of the United Nations Charter.  David Bosco at Foreign Policy notes that reprisals have “deep roots” in international law, and explains that “Western governments would be violating international law in order to defend it “. He fails to note the present illegality of reprisals, but sees the doctrine as a suitable basis for making Syria “pay a price” for its law-breaking. Professor Heather Roff writes that that conditions for reprisals would not be met if the United States attacked Syria, but more fundamentally, that the doctrine cannot apply because the United States is not a party to the conflict. This commentary has tended to confuse, somewhat understandably, the concepts of armed and belligerent reprisals.

    There is no denying that many violations of international humanitarian law have been committed in Syria, including the use of chemical weapons, but some doubt has been raised regarding responsibility for the latter. An armed intervention by the United States in response to these violations would not have a lawful basis under present international law, either as self-defence, humanitarian intervention or an armed reprisal. This latter legal doctrine is a throwback to the days of unilateral enforcement, and has been rightly abandoned. Reprisals were mostly relied upon by those more powerful States and had a tendency to lead to escalation and further violations, rather than a return to respect for international law.  There is no reason to suggest that this would be any different with Syria.

     

  • 0

    The 100th Anniversary of the Peace Palace

    The 100th Anniversary of the Peace Palace

    Peace PalaceToday marks the 100th anniversary of the Peace Palace, which houses the International Court of Justice in the Hague. The Peace Palace also houses the Permanent Court of Arbitration (PCA), the Hague Academy of International Law and the Peace Palace Library. The idea for the building emerged after the First Hague Peace Conference of 1899. Originally intended to house the PCA and the library, the  construction of the palace was financed by Andrew Carnegie.

    De Iure Belli Ac Pacis - Hugo GrotiusToday is also the anniversary of the death of Hugo Grotius, the so-called “father of international law”. Mare liberumHe was born in 1583 and died on August 28 1645. As it happens, the Peace Palace holds one of the greatest collections of the works of Grotius (see details here), including original copies of Grotius’s famous Mare Liberum  and one of only two known original copies of  De iure belli ac pacis (The only other known copy is in the Bodleian Library in Oxford)

    Today is also the 50th anniversary of Martin Luther King Jr’s “I have a Dream” speech.

     

0

CRC Concluding Observations on the Holy See

CRC Concluding Observations on the Holy See

The UN Committee on the Rights of the Child released today its concluding observations on the second periodic report of the Holy See. The report is making waves in the media because of the Committee’s very strong condemnation of the inadequacy of the Catholic Church’s response to the sexual abuse of children by its clergy all over the world. The full report is available here, and has many points of interest. The first, and indeed the most crucial from the standpoint of public international law, is how the Committee defines the scope of the Holy See’s obligations under the Convention, in para. 8:

The Committee is aware of the dual nature of the Holy See’s ratification of the Convention as the Government of the Vatican City State, and also as a sovereign subject of international law having an original, non-derived legal personality independent of any territorial authority or jurisdiction. While being fully conscious that bishops and major superiors of religious institutes do not act as representatives or delegates of the Roman Pontiff, the Committee nevertheless notes that subordinates in Catholic religious orders are bound by obedience to the Pope in accordance with Canons 331 and 590. The Committee therefore reminds the Holy See that by ratifying the Convention, it has committed itself to implementing the Convention not only on the territory of the Vatican City State but also as the supreme power of the Catholic Church through individuals and institutions placed under its authority.

This paragraph is the necessary starting point for practically all of the analysis that follows, and indeed the representatives of the Holy See have already put it into question (see the second para.). The Committee is essentially saying that the Holy See doesn’t merely have obligations under the Conventions towards children within the Vatican City limits – if there even are any – but also towards the millions of children whose lives are affected by individuals or institutions under Church authority, be it local priests or Church-run schools. This is, in other words, a massive claim on the Convention’s extraterritorial application, and if I’m not mistaken this is the first time it has been made so explicitly by a treaty body with respect to the Holy See. Note in this regard that the Committee does not employ the language of the jurisdiction clause in Article 2(1) CRC, nor makes it clear under what theory exactly the Convention applies extraterritorially on such a scale.

The bottom line of the Committee’s approach is that if, for instance, there are reports of sexual abuse of children by Catholic clergy in Ireland, both Ireland and the Holy See have a positive obligation to protect and ensure the human rights of these children (see paras. 37-38, 43-44). In that sense the Committee’s report complements rather well the European Court’s judgment of last week in O’Keeffe v. Ireland (application no. 35810/09), in which the Court found that Ireland failed to protect a schoolgirl from sexual abuse by a lay teaching in a Catholic school. On the whole, the Committee’s findings with respect to the sexual abuse of children are quite damning – see, e.g., para. 29: ‘The Committee is particularly concerned that in dealing with allegations of child sexual abuse, the Holy See has consistently placed the preservation of the reputation of the Church and the protection of the perpetrators above children’s best interests, as observed by several national commissions of inquiry.’

Outside the question of sexual abuse, the report’s many findings and recommendations frequently demonstrate a clash of worldviews between the obviously very progressive, human-rightsy Committee and some of the socially conservative beliefs of the Catholic Church. The Committee thus recommends the Holy See to review its position on abortion, contraception, sexual orientation, family diversity, etc. (Good luck with that.) In that regard, the bit I found positively entertaining (and oh-so-very-Jesuit) is the Committee’s recommendation to the Holy See to (paras. 22 & 24):

strengthen its efforts to make all the provisions of the Convention widely known, particularly to children and their families, through, inter alia, developing and implementing specific long-term awareness-raising programmes, and including the provisions of the Convention into school curricula at all levels of the Catholic education system using appropriate material created specifically for children. … The Committee urges the Holy See to provide systematic training on the provisions of the Convention to all members of the clergy as well as Catholic orders and institutions working with and/or for children, and to include mandatory modules on children’s rights in the teachers’ training programmes as well as in seminaries.

 

 

 

0

OUP Debate Map on “Disputes in the South and East China Seas”

OUP Debate Map on “Disputes in the South and East China Seas”

Readers interested in the territorial and maritime boundary disputes between China and her neighbours in the South and East China Seas will welcome the creation by Oxford University Press of a “Debate Map” on the topic. The  “Debate Map” is a valuable way of keeping track of scholarly commentary, in journals and blogs, on the range of issues related to those territorial and maritime disputes. It is essentially an index which categorises and:

maps scholarly commentary on the international law aspects of the conflicts in and around the South China and East China Seas, including maritime boundary disputes, the question of sovereignty over the Senkaku/Diaoyu islands, China’s recent announcement of an Air Defence Identification Zone, and the Philippines/China UNCLOS arbitration. It brings together primary documents with discussions in English-language legal blogs and a selection of journal articles.

Readers can “[u]se this map to review scholarly arguments and to keep track of which issues have been covered and who has said what.” OUP has also made available a range of online OUP materials on these issues (see the Oxford Public International Law Page).

The current Debate Map is the third such Map created by the Law team at OUP. The first was on The Use of Force Against Syria and was noted by John Louth here. The second on the Prosecution of Heads of States and Other Senior Officials at the ICC was discussed by Merel Alstein here. These debate maps are regularly updated and as Merel explains “aim to provide a quick overview of the relevant legal problems and controversies but also to create an archive of scholarship that can be referred back to  . . .”

0

Can the ICC Prosecute for Use of Chemical Weapons in Syria?

Can the ICC Prosecute for Use of Chemical Weapons in Syria?

Recent reports regarding the possible use of chemical weapons in Syria are very disturbing indeed. If it turns out that there is concrete evidence that chemical weapons have been used, many will hope this will (finally) provoke action by the Security Council. There will inevitably be calls for accountability of those responsible and hopes that the Syrian situation will be referred to the International Criminal Court (ICC). But even if the Syrian situation is referred to the ICC, can the Court prosecute for use of chemical weapons in Syria.

As Syria is not a party to the Statute of the International Criminal Court, the ICC will only have jurisdiction over events in Syria if there is a Security Council referral (Arts 12 & 13, ICC Statute). If the Council were to refer the situation in Syria, it is possible that attacks involving the use of chemical weapons may be prosecuted as part of a charge of crimes against humanity or as part of the war crime of intentionally directing attacks against a civilian population. In such a case, the use of chemical weapons would not form part of the core of the charge but would simply be the means by which the attack has taken place. Proving use of chemical weapons would not be necessary to sustain either charge. However, it is interesting to consider whether the use of chemical weapons would itself be a crime under the ICC Statute in the Syrian situation. I think the answer is yes, but, perhaps surprisingly, the answer is not as straightforward as one might have thought or would have hoped.

Does the ICC Statute Specifically Prohibit the Use of Chemical Weapons?

Despite attempts to include a provision that would have specifically and expressly criminalised the use of chemical weapons, the ICC Statute adopted in Rome 1998 did not mention chemical weapons by name (see Bill Schabas’ post here). However, Article 8(2)(b) of the Statute dealing with war crimes includes 3 provisions that might be interpreted as applying to chemical weapons. Art. 8(2)(b)xvii makes it a war crime to employ “poison or poisoned weapons”. Para. xvii refers to “employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices. Para. xx makes it a war crime to employ “weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict. . . .” However, that last provision only prohibits those weapons if they are subject to a comprehensive prohibition and included in an annex to the Statute. Unfortunately, no annex to this provision has been agreed so no one can (yet) be prosecuted under para xx.

An argument has been made that the provisions of the ICC Statute listed above do not cover chemical and biological weapons(see discussion of this argument in the article by my friends’ Amal Alamuddin and Philippa Webb 2010 JICJ at, pp. 1227-8]. This argument is based on the drafting history of Art 8 where it was first proposed to include an explicit prohibition of chemical and biological weapons. However, those provisions were removed from the final draft at the same time as a broad provision prohibiting weapons causing unnecessary suffering was narrowed to extend to only those weapons specifically listed in an annex (which was never agreed). That latter provision was thought too broad as it could have extended to nuclear weapons. As Bill Schabas noted on his blog back in April:

“The removal of an explicit reference to bacteriological and chemical weapons coincided with a removal of the broad general provision capable of covering nuclear weapons. This was a compromise designed to appease some non-nuclear states, who felt that excluding nuclear weapons alone smacked of hypocrisy. After all, chemical weapons were the ‘poor man’s’ weapon of mass destruction.”

The argument that chemical weapons are not covered by Art. 8 is thus based on the removal of the explicit prohibition and the fact that it was thought that it would be the annex to the Statute that would set out those weapons like chemical weapons that are deemed are indiscriminate and cause unnecessary suffering.

However, it is erroneous to interpret a treaty primarily by reference to drafting history. Under Art. 32 of the Vienna Convention on the Law of Treaties, the drafting history is only to be used as a supplementary or secondary tool of interpretation to resolve ambiguity. As Art. 31 of the VCLT indicates and ICJ has stated, the interpreter must start with the text of the treaty. Thus one must start by looking to see what the words of the treaty as agreed actually means.  It seems to me that the words “poison or poisoned weapons” and more clearly “asphyxiating, poisonous or other gases” would cover a variety of chemical weapons. The latter wording is taken from the Geneva Gas Protocol which was intended to cover chemical weapons. Although the Chemical Weapons Convention of 1993 does not use this wording (referring instead to “Toxic chemicals”), this does not mean that the wording of the ICC Statute does not extend to chemical weapons. Although weapons not in the form of a gas are not covered by para xvii, it is also arguable that. The words ’poisonous’ and ‘toxic” are largely synonymous. The Oxford English Dictionary defines “toxic” as: “of the nature of a poison; poisonous”. Moreover many chemical weapons cause death or injury by asphyxiation. Indeed, it would be difficult to give any meaning to para. xvii if it did not cover chemical weapons. [UPDATE: The last four sentences of this paragraph were amended/added after the post was originally written. The words deleted are clearly incorrect since para. xvii refers also to "analogous liquids, materials or devices", see previous para]

Although the Rome Statute can and should be read as also prohibiting chemical weapons, Art. 8(2)(b)applies only to international armed conflicts and the crimes in the provisions just quoted were not repeated in the list, set out in Art. 8(2)(e), of war crimes in non-international armed conflicts. Thus, even assuming that these provisions apply to chemical weapons, the ICC was not given jurisdiction to prosecute the use of chemical weapons in a non-international armed conflict. The Syrian conflict, is considered to be a non-international armed conflict and under the 1998 Rome Statute, the matter would have been rather straightforward. The Court would have lacked jurisdiction to prosecute for the use of chemical weapons as a crime in and of itself. This is despite the fact that in the Tadic Case [paras. 119-128], the ICTY Appeals Chamber stated (in 1995!) that international law prohibited the use of chemical weapons in internal armed conflicts and suggested that this prohibition was also present in international criminal law.

Happily, the restriction in the ICC Statute of the provisions dealing with banned weaponry to international armed conflicts was corrected in the Kampala Review Conference in 2010. At that conference, parties to the ICC Statute adopted an amendment to Article 8(2)(e) which extends the list of war crimes in non-international armed conflicts to include “employing poison or poisoned weapons” and “employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices” [Art. 8(2)(e)(xiii) & (xiv)]. Under Article 121(5) this amendment will come into force for each State party that ratifies it. Only 8 States have ratified this amendment thus far. The second sentence of Art. 121(5) provides that: “In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.”

Can the Security Council Refer Crimes in the Kampala Amendment?

The question that arises is whether a Security Council referral would be a referral that grants jurisdiction to the ICC on the basis of the ICC Statute adopted in Rome in 1998 or the amended ICC Statute.

Although the amendments to Art. 8 are only in force for a few State parties, the purpose of Security Council referrals to the ICC is to expand the jurisdiction of the ICC to cover acts by nationals of non-parties or on the territory of non-parties. On this view, the fact that Syria or any other State is not a party to the Art. 8 amendment ought not to stand in the way of ICC exercise of jurisdiction with respect to the amendment. As soon as the amendment was adopted, it became part of the ICC Statute. The amendment is not binding on States that have not ratified it but this is the same as the ICC Statute was not binding on Libya or Sudan (or persons connected with them) until the SC referred the situation in those countries to the ICC.

Significantly, although the amendment to Art. 8 does not specifically refer to Security Council, the aggression amendments also adopted in Kampala specifically envisage Security Council referrals. ICC parties assumed that in the case of a Security Council referral, the ICC can exercise jurisdiction over aggression committed by non-parties, or States that don’t ratify the aggression amendments, once the conditions set out in the aggression amendments are met.

However, there is one difficulty with this assumption that the Security Council referrals cover crimes added by amendments. That difficult arises from the second sentence of Art. 121(5) quoted earlier. That provision, which is directed at the Court, says that the Court “shall not exercise jurisdiction regarding a crime covered by [an] amendment”  when committed by the national of, or on the territory, of a State party that has ratified the amendment. The correct interpretation of this provision has been the source of much controversy (especially as to whether it amends the jurisdictional provisions in Art. 12). However,  what is relevant for our purpose is that in adopting the Art. 8  amendment, ICC Review Conference “confirm[ed] its understanding that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted the amendment applies also in respect of States that are not parties to the Statute”. Thus on this view, the Court shall not exercise jurisdiction over crimes covered by the amendment when committed by a national of a non-State party or on its territory. The purpose of this understanding was to provide equality between non ICC parties and those States parties that do not ratify an amendment.

If the Statute says the Court shall not exercise its jurisdiction (and does not provide any exception in Art. 121(5)) with respect to States that have not ratified an amendment, it could be argued that any Security Council referral must also exclude crimes covered by the amendment. As stated above this would seem inconsistent with the assumption of the parties with regard to aggression. It could be argued that Art. 121(5) only applies in cases where the trigger mechanism for ICC jurisdiction is a state referral or the prosecutor investigating propio motu. However, Art. 121(5) does not say this. However, one could imply this restriction from the fact that Art 121(5) seeks to provide a jurisdiction based on State consent, whereas SC referrals are not based on State consent.

In conclusion, were the Security Council to refer the situation in Syria to the ICC, the Court would have jurisdiction to prosecute specifically for use of chemical weapons.

 

 

 

0

Democratic Statehood in International Law

Democratic Statehood in International Law

JureVidmar_profile1In the book Democratic Statehood in International Law, I develop an argument that state creation is a political process of overcoming a competing claim to territorial integrity. The emergence of a new state is not an automatic or factual occurrence upon meeting the statehood criteria. The process requires some democratic procedures to be followed. It often also runs in parallel with an internationalised attempt at imposition of a democratic political system.

The post-Cold War practice and the effects of the right of self-determination have led some writers to proclaim that under contemporary international law a newly-emerged state needs to be democratic. Others have rejected this view by holding that democracy has not bBook. Democratic Statehood. Jure Vidmarecome a statehood criterion. My argument is that the first statement is exaggerated and the second one wrongly-focused. Non-democratic states can emerge in contemporary international law, but so can states that do not meet the statehood criteria.

In the process of state creation, the adoption of democratic institutions is equally as relevant or irrelevant as ‘Montevideo’. Considerations for democracy may impact state practice in relation to claims for independence but do not have any direct legal effects. The same can be said of the Montevideo criteria. Via the right of self-determination, state-creation nevertheless does require a democratic process. This is a requirement for independence referenda, not a requirement for a particular political system. The right of self-determination should not be conflated with democracy.

 State creation as a political process of overcoming a counterclaim to territorial integrity

 Acquiring statehood is not an international legal entitlement. Existing states are protected by the principle of territorial integrity. While this principle does not generate an absolute prohibition of secession, the consequence of its operation is that states cannot emerge automatically, as a matter of objective fact. States can only emerge in the legal circumstances where the claim to territorial integrity is either overcome or becomes inapplicable. [I develop this argument further in a separate article].

An effect of the principle of territorial integrity is that the burden of moving the territorial status quo lies on the independence-seeking entity. This is a rather difficult task and only very rarely is it successful. The emergence of new states in contemporary international law is thus a political process of overcoming the hurdle of a counterclaim to territorial integrity.

The book identifies the following modes of overcoming this hurdle: (i) waiver of the claim by the parent state; (ii) consensual extinction of the parent state; (iii) international involvement which either procures a waiver or leads to a non-consensual extinction of the parent state; and (iv) ‘constitutive recognition’ of unilateral secession. All of these modes require a political process which can be either primarily domestic, internationalised or a combination of both.

The least controversial modes are the parent state’s waiver and consensual extinction. International involvement leading to non-consensual dissolution is more controversial than consensually-achieved statehood. In principle, where dissolution occurs, the legal personality of the predecessor state is extinguished and, as a result, there is no applicable counterclaim for territorial integrity.

The situation is relatively clear where dissolution is consensual (e.g. Czechoslovakia). Where it is not, the outcome becomes dependent on international responses. The only clear example of non-consensual dissolution is the SFRY, where the Badinter Commission interpreted the situation as dissolution rather than attempts at unilateral secession. This position was subsequently universally adopted through practice of states and UN organs.

The emergence of states through unilateral secession is very unlikely but it is not illegal. Further, international law does not prohibit granting recognition to an entity which declares independence unilaterally. Despite the general perception in contemporary international law of recognition being a declaratory rather than constitutive act, it is doctrinally accepted that in a case of unilateral secession a state may be constituted via recognition. This was indeed confirmed in paragraph 155 of the Quebec case, where the Supreme Court of Canada held that the ultimate success of unilateral secession would depend on international recognition [I elaborate on this in more detail in a separate article]. This conclusion needs to be accompanied with a caveat: it is unclear how many and whose recognitions are necessary for successful state creation in such circumstances.

Recognition which is widespread yet not virtually universal creates an ambiguity with regard to the legal status of a territory – an ambiguity which can sometimes only be clarified over time (e.g. historically Bangladesh, presently Kosovo). The possibility of such an ambiguity is no surprise; it is a consequence of the concept of the state in international law. Statehood is not an objective natural fact, it is legal status of a territory. And legal status can sometimes be ambiguous.

 

How does democracy relate to contemporary theory of statehood?

Practice shows that circumstances of state creation upon a domestic consensus are relatively rare. In most cases state creation is an internationalised political process, sometimes even within the framework of a peace settlement. In such circumstances the internationalised process of state-making becomes entangled with the internationalised process of democracy-making.

At the same time, nothing in this practice indicates that emergence of a non-democratic state would be prohibited, that is, illegal, in the same way as states may not emerge in violation of certain fundamental norms of international law, in particular jus cogens (cf. Southern Rhodesia, the Homelands, and Northern Cyprus). After the Minsk Agreement and Alma Ata Protocol, former Soviet republics emerged as independent states, regardless of how undemocratic governments many (or most) of them had. Further, when Eritrea consensually seceded from Ethiopia, there was no international enquiry into its governing methods.

Democracy is not a legality requirement for state creation and neither is it an addition to ‘Montevideo’. But despite not being on the ‘Montevideo list’, democracy should not be labelled as irrelevant. Namely, not even the Montevideo criteria are a ‘legal checklist’ that would tell whether or not an entity is a state. These criteria only influence the political process leading toward statehood. In practice, an international attempt is made that a new state would at least roughly meet the Montevideo criteria, although this does not always happen. The same can be said of democracy: an international attempt is commonly made that a new state would at least roughly implement democratic institutions, although this does not always happen.

 

 Democracy, self-determination and state creation

 As stated by the ICJ in Western Sahara, any change of the legal status of a territory requires a popular consultation and support of the will of the people. However, a democratically-expressed will of the people in favour of independence does not create a new state; it is only a necessary but not a sufficient requirement. As suggested by the Supreme Court of Canada, a democratically-expressed popular support for independence may put an obligation on both sides to negotiate a future territorial arrangement, but does not predetermine an outcome. This further affirms the premise that state creation is a political process which potentially (but not necessarily) leads to a new legal status of a territory.

Save for exceptional circumstances, the will of the people in favour of independence is expressed by democratic vote at referenda. International law prescribes no universal referenda rules. Within the legal framework where an expression of the will of the people does not automatically create a new state but merely adds to the legitimacy of a claim to independence, precise regulation of referenda rules is not necessary. There is a general requirement that the referendum question and winning majority need to be unambiguous. The qualification of ‘unambiguous’ remains situation specific and depends on political and social factors. In practice, a simple majority of all votes cast is most commonly prescribed as a threshold for the success of a referendum, though more qualified majorities are often achieved.

Thus, a state cannot be created against the wishes of the people populating the territory. At the same time, a democratically-expressed will of the people does not create a right to independence. Popular support adds to the legitimacy of a claim to independence and may initiate a political process which can potentially (though not necessarily or automatically) lead to the creation of a new state.

 

 Conclusion

 State creation in contemporary international law is not a factual occurrence on the basis of meeting the statehood criteria. It is a political process that changes the territorial status quo and alters the legal status of a territory. Statehood is a politically-created international legal status. The process leading to it is governed by a legal framework. A state may not emerge in violation of some fundamental norms of international law, in particular those of jus cogens character. And the right of self-determination requires for state creation to be a democratic process.

In the post-Cold War period, practice has emerged not only of creating new states democratically (support of the will of the people for independence) but also of creating new democratic states (in terms of the political system). However, democracy is not a requirement for statehood. Non-democratic states can emerge in contemporary international law, but so can states that do not meet the statehood criteria. Ultimately, this poses doubts as to whether the Montevideo criteria can really be seen as having the status of customary international law. State practice indeed demonstrates that meeting or non-meeting of these criteria has no direct bearing for an entity’s legal status.

This is my brief introduction of Democratic Statehood in International Law and some principal arguments developed in the book. Two eminent experts in the field, Prof Jean d’Aspremont and Prof Brad Roth, have kindly agreed to provide their comments. I am most grateful to both of them for taking the time and am looking forward to having a good discussion.

 

0

The Security Council and the ICC

The Security Council and the ICC

The University of California Irvine Law School’s International Justice Clinic recently issued an important report examining the relationship between the UN Security Council and the International Criminal Court.   The report, authored by UCI Irvine Prof David Kaye, is the culmination of a project on the Council and the Court run by UC Irvine, in collaboration with the University of California Los Angeles (UCLA) Burkle Center for International Relations.  The purpose of the project was to examine the relationship between the Security Council and the ICC and to seek concrete ways in which the Council can improve its support to the ICC. At the end of November last year, I attended a closed workshop, held as part of the project, which was attended by a small but diverse and impressive group of scholars and practitioners. Participants included academics, members of civil society, current or former officials from governments, including each of the P5, as well as representatives from the ICC bench, office of the prosecutor and the registry. Over two days, we discussed a number of stumbling blocks in the relationship between the Council and the Court, in particular the difficulties in securing referrals by the Council to the Court, problems regarding the framing of referrals, issues of funding and cooperation etc.

The report makes a couple of institutional or structural recommendations for improving the dialogue between the Council and the Court and for building support within the Council for the work of the Court. It also makes a number of specific policy recommendations regarding matters which should be addressed in Council resolutions relating to the ICC. The recommendations are as follows:

1. Extension of the obligations of cooperation with the Court to all states, not just the situation countries themselves, especially in referral situations but also possibly in those circumstances where the Council has expressed support for the work of the Court in non-referral situations;

 2. Provision of timely substantive responses to Court findings of non-cooperation that are communicated to the Council, as the Court has done on several occasions;

3. Extension of key Rome Statute protections of privileges and immunities in referral and other situations, thereby allowing Court officials to conduct their work safely and without interference from local actors;

4. Regular and streamlined imposition of financial, travel, and diplomatic sanctions on those accused by the ICC, helping to dry up the accused’s resources and highlight the importance of state cooperation in transferring such individuals to ICC custody;

 5. Promotion of UN and outside funding in referral situations, eliminating the language from referral resolutions purporting to disallow UN funding;

 6. Elimination of jurisdictional restrictions related to non-parties in referral resolutions, enabling the Court to exercise independence in identifying those most responsible for the most serious crimes in situation countries; and

7. Initiation of a transparent conversation about the factors relevant to Council referral of situations to the Court, recognizing that the Council is highly unlikely to identify specific criteria to guide future referrals.

 

It seemed to me, from the discussions at the workshop, that recommendations 5 and 6 are achievable in the short term. The relevant provisions in Council referral resolutions are added in order to meet the concerns of the US. However, it may well be that other members of the Council, who take the lead in drafting these resolutions (namely France and the UK) are giving the US something the US may not itself insist on were it not included in the first draft of these resolutions. Recommendation 1 is more difficult to achieve but achievement of this goal (as well as that expressed in recommendation 1) is of great importance in securing trust by the broader UN membership  in the ICC. A failure to include measures in referral resolutions that speaks to equality of application of the law will likely mean that as US support for the ICC increases, support by others will decrease. It seemed to me that one way to achieve these recommendations is for other countries to take the lead in drafting ICC referral resolutions. However, whether this would be possible in practice is another matter. Apparently, it is the UK and France that always take the lead in the Council on ICC matters. It is not quite clear why this has to be so.

Recommendation 4 is more problematic. At first glance, it appears to suggest that there should be imposition of sanctions on ICC accused as a matter of course. However, in the report, it is stated at p.21 that:

The Council should expand its sanctions committee work by working with the Court to identify those actors who should be subject to sanctions. Such measures should be adopted for both referral and non‐referral situations. Sanctions such as these have practical and symbolic importance, as they not only seek to deny a person access to resources to carry out unlawful acts. They also make a normative statement that such individuals, by acting unlawfully, should lose the privileges they may otherwise enjoy as leaders or officials, state or non‐state. They demonstrate to states that such behavior entails consequences and penalty. Ultimately, if enforced, such measures may have the effect of limiting an individual’s ability to evade ICC process.

 

A call for the Council sanctions committee to work with the Court in identifying those who will be subject to sanctions makes clear that imposition of sanctions should not be automatic. Indeed it hardly seems to make sense to say that those cooperating with the Court should be subject to sanctions. Sanctions for non-cooperation or attempting to evade ICC jurisdiction would seem to make more sense. Nonetheless, even the normative statement in the paragraph above is problematic. It runs counter to the presumption of innocence. No one should be presumed to be acting unlawfully just because they have been charged by the ICC. After all, the ICC has been unable to secure convictions of many of those charged thus far.

 

0

UK Supreme Court Decides Smith (No. 2) v. The Ministry of Defence

UK Supreme Court Decides Smith (No. 2) v. The Ministry of Defence

Last week the UK Supreme Court delivered its judgment in Smith (No. 2) v. The Ministy of Defence (judgment; BBC News report). This is a follow-up to the Smith (No. 1) case decided three years ago, with a different set of plaintiffs, but on the same issue – whether and how the European Convention on Human Rights applies extraterritorially to protect British troops abroad, specifically when British troops operate in areas not under UK control. In Smith No. 1, the Supreme Court, basing itself on Bankovic and the House of Lords Al-Skeini judgment, found that UK soldiers were not within UK jurisdiction for Article 1 ECHR purposes when they operated in areas outside UK control. A similar case, Pritchard, is currently pending before the European Court; for more background, see my case law update from last month. These cases are essentially Al-Skeini in reverse, since they concern the human rights of soldiers vis-a-vis their own government, rather than the rights of other persons that these soldiers affect through their own conduct.

The Smith No. 2 case concerned two sets of claims: one dealing with the alleged failure of UK authorities to properly equip their Challenger tanks with targeting equipment that would have allowed them to avoid a friendly fire incident, and the other dealing with various decisions of the UK authorities that allowed British soldiers in Iraq to use Snatch Land Rovers on patrol, these vehicles providing little or no protection from improvised explosive devices. The first set of claims was brought entirely under the common law, and I will not deal with it here; the second was partly based on the Article 2 ECHR substantive positive obligations of the UK to secure the right to life of its soldiers in the field.

In light of the European Court’s Al-Skeini judgment, the Supreme Court unanimously reversed its ruling in Smith No. 1, finding that the applicants were within the UK’s jurisdiction and that accordingly the ECHR applied, and by 4 votes to 3 allowed the claims to proceed to trial. The judgment is remarkable for a number of reasons.

First, as an example of judicial dialogue on the Article 1 jurisdiction issue. The Supreme Court unanimously reversed its Smith No. 1 ruling, with even the otherwise dissenting judges agreeing – Lord Mance, joined by Lord Wilson, para. 102; Lord Carnwath, para. 153. (Notably, five of the Smith No. 2 justices sat on Smith No. 1, three of whom – Lady Hale, Lord Mance, and Lord Kerr, were in the minority in No. 1 on the jurisdiction issue). It did so even though the ECtHR Al-Skeini judgment did not directly compel this reversal, as I explained in my previous post, and as explicitly acknowledged by Lord Hope at para. 42, writing for the majority and indeed the entire Court on the jurisdiction issue.

Rather, the Court decided to reverse Smith No. 1 because the Grand Chamber’s Al-Skeini judgment overturned some of the predicates on which Smith No. 1 was based: the Bankovic focus on the spatial model of jurisdiction as state control over areas and disregard for the personal model of jurisdiction as authority and control over individuals; the similar focus on regionalism; the indivisibility point on how the ECHR cannot be divided and tailored according to the circumstances, but applies in an all or nothing package. Most importantly, the Grand Chamber itself showed willingness to adjust its own approach to questions of jurisdiction, essentially by partially overruling Bankovic, even if not openly admitting to doing so. Accordingly, Lord Hope concluded (at para. 55) that UK soldiers operating abroad are within UK jurisdiction under the personal model.

Second, this sets the stage for further dialogue with the European Court in its pending decision in Pritchard. I’m sure the European Court will treat the unanimous, considered views of seven justices of the UK Supreme Court with some weight in coming to its own opinion on whether the Convention generally applies extraterritorially to the soldiers of contracting states acting abroad. If the European Court affirms the Smith No. 2 approach, this principle will of course extend to all 47 member states. It moreover doesn’t seem to be possible to easily limit it by use of the vague and rather arbitrary ‘public powers’ criterion that the Court had earlier used in Al-Skeini to limit the personal model of jurisdiction with regard to the use of force by state agents.

This may lead to questionable or inconsistent results. For instance, a friendly-fire incident would be covered by the Convention, since any deceased soldier would be under his state’s authority and control, whereas the death of a civilian standing right next to the dead soldier might not be, if the state is not exercising ‘public powers,’ whatever these exactly may be (in that regard, in Lord Hope’s view the UK did not have such public powers at the time of the incidents in Smith No. 2, as the occupation had formally ended – para. 41). We will thus see whether Pritchard will involve re-litigating some of these issues.

Third, the most important contribution of Smith No. 2 is not in the jurisdiction issue, but in its examination of the merits of the Article 2 claim. This is where considerations of effectiveness come into play the most. All of the justices felt that it would be highly improper for them to expose executive decisionmaking in a battlefield context, whether strategic or operational, to intense judicial scrutiny. However, whereas the four justices in the majority felt there was some space for judicial supervision even while according the government much deference and a wide margin of appreciation, for the the three justices in the minority the various factual issues were so entangled with policy and political judgments made by the government and the military that any kind of judicial intervention would be inappropriate.

There are a number of points of interest here. For example, at paras. 59-61 Lord Hope dismisses the possibility and even utility of derogations under Article 15 ECHR in resolving the kind of issues that were at hand in this case, particularly because of the extraterritorial context:

 

I do not think therefore that it would be right to assume that concern about the practical consequences in situations such as those with which we are dealing in this case can be answered by exercising the power to derogate. The circumstances in which that power can properly be exercised are far removed from those where operations are undertaken overseas with a view to eliminating or controlling threats to the nation’s security. The jurisprudence of the Strasbourg court shows that there are other ways in which such concerns may be met. … The Strasbourg court has repeatedly emphasised that, when it comes to an assessment of the positive obligations that are to be inferred from the application in any given case of the Convention rights, a fair balance must be struck between the competing interests of the individual and of the community as a whole. It has also recognised that there will usually be a wide margin of appreciation if the state is required to strike a balance between private and public interests and Convention rights.

 

What one thus needed is a flexible analysis on the merits that would give due deference to the executive and separate those issues for which judicial scrutiny is appropriate from those for which it is not (paras. 64-66):

 

The extent to which the application of the substantive obligation under article 2 to military operations may be held to be impossible or inappropriate will, however, vary according to the context. Military operations conducted in the face of the enemy are inherently unpredictable. There is a fundamental difference between manoeuvres conducted under controlled conditions in the training area which can be accurately planned for, and what happens when troops are deployed on active service in situations over which they do not have complete control. As Lord Rodger observed in Catherine Smith, para 122, the job of members of the armed forces involves their being deployed in situations where, as they well know, opposing forces will be making a determined effort, and using all their resources, to kill and injure them. The best laid plan rarely survives initial contact with the enemy. The best intelligence cannot predict with complete accuracy how the enemy will behave, or what equipment will be needed to meet the tactics and devices that he may use to achieve his own ends. Speed may be essential if the momentum of an attack is to be maintained or to strengthen a line of defence. But lines of communication may become stretched. Situations may develop where it is simply not possible to provide troops in time with all they need to conduct operations with the minimum of casualties. Things tend to look and feel very different on the battlefield from the way they look on such charts and images as those behind the lines may have available to them. A court should be very slow indeed to question operational decisions made on the ground by commanders, whatever their rank or level of seniority.

Then there is the issue of procurement. In A v Secretary of State for the Home Department [2005] 2 AC 68, para 29, Lord Bingham said that the more purely political (in a broad or narrow sense) the question is, the more appropriate it would be for political resolution, and the less likely it is to be an appropriate matter for judicial decision. The allocation of resources to the armed services and as between the different branches of the services, is also a question which is more appropriate for political resolution than it is by a court. Much of the equipment in use by the armed forces today is the product of advanced technology, is extremely sophisticated and comes at a very high price. Procurement depends ultimately on the allocation of resources. This may in turn be influenced as much by political judgment as by the judgment of senior commanders in Whitehall as to what they need for the operations they are asked to carry out. It does not follow from the fact that decisions about procurement are taken remote from the battlefield that they will always be appropriate for review by the courts.
This, then, is a field of human activity which the law should enter into with great caution. Various international measures, such as those contained in the 3rd Geneva Convention of 1929 to protect prisoners of war, have been entered into to avoid unnecessary hardship to non-combatants. But subjecting the operations of the military while on active service to the close scrutiny that may be practicable and appropriate in the interests of safety in the barrack block or in the training area is an entirely different matter. It risks undermining the ability of a state to defend itself, or its interests, at home or abroad. The world is a dangerous place, and states cannot disable themselves from meeting its challenges. Ultimately democracy itself may be at risk.

 

Upon reviewing some (relatively) relevant Strasbourg authorities, he concluded that (para. 76):

 

The guidance which I would draw from the Court’s jurisprudence in this area is that the court must avoid imposing positive obligations on the state in connection with the planning for and conduct of military operations in situations of armed conflict which are unrealistic or disproportionate. But it must give effect to those obligations where it would be reasonable to expect the individual to be afforded the protection of the article. It will be easy to find that allegations are beyond the reach of article 2 if the decisions that were or ought to have been taken about training, procurement or the conduct of operations were at a high level of command and closely linked to the exercise of political judgment and issues of policy. So too if they relate to things done or not done when those who might be thought to be responsible for avoiding the risk of death or injury to others were actively engaged in direct contact with the enemy. But finding whether there is room for claims to be brought in the middle ground, so that the wide margin of appreciation which must be given to the authorities or to those actively engaged in armed conflict is fully recognised without depriving the article of content, is much more difficult. No hard and fast rules can be laid down. It will require the exercise of judgment. This can only be done in the light of the facts of each case.

 

Lord Hope and the majority thought that there was some room to find this middle ground on the facts of the present case, which should therefore be allowed to proceed to trial where all the relevant issues could be explored in detail. But (para. 81):

 

The claimants are, however, on notice that the trial judge will be expected to follow the guidance set out in this judgment as to the very wide measure of discretion which must be accorded to those who were responsible on the ground for the planning and conduct of the operations during which these soldiers lost their lives and also to the way issues as to procurement too should be approached. It is far from clear that they will be able to show that the implied positive obligation under article 2(1) of the Convention to take preventative operational measures was breached in either case.

 

In short, even though their claims will not be struck out, the claimants were warned that they are not likely to prevail, and implicitly that for them to do so they need to make a narrow, specific, and not overly ambitious or interventionist case. For the three justices in the minority, however, even this was going too far, and they would have struck out the claims now. The opinion of Lord Mance in particular casts serious doubts as to the propriety of judicial intervention in an ellusive middle ground that could hardly be distinguished from areas in which deference to the executive was appropriate, with the potential flood of litigation seriously undermining the effectiveness of the executive in the performance of its functions.

In sum, regardless of whether one agrees with the majority or the minority this is a deep, thoughtful judgment, from which Strasbourg will also hopefully draw some lessons. It exposes the dynamics between universality and effectiveness that permeate all cases of extraterritorial application, but in doing so it refuses to use the jurisdiction issue as a proxy for dealing (or not) with the merits of very difficult problems. As I argue at length in my book, there is a price to pay for the application of human rights extraterritorially and in armed conflict, and that is the watering down of human rights protections designed for conditions of normalcy. Yet that price must not be so high as to, on the one hand, render the application of human rights completely ineffectual in practice, or, on the other, compromise the integrity of the whole human rights regime. The disagreement between the majority and the minority in Smith No. 2 is precisely in the outcome of this calculus, but not in its basic parameters. We will see how the case unfolds back at trial, and how Strasbourg will respond.

 

0

Iran’s (Non-)Compliance with its Non-Proliferation Obligations Revisited

Iran’s (Non-)Compliance with its Non-Proliferation Obligations Revisited

A recent statement issued by the EU entitled ‘Common messages regarding EU sanctions against the Iranian nuclear programme’, posted on the websites of various EU embassies in Tehran (and translated into Farsi), attempts to sum up the reasons which have allegedly justified not only the sanctions on Iran decided by the UN Security Council, but also those adopted by the EU itself, which, as the document make clear, are ‘autonomous sanctions, beyond the ones imposed on Iran by UNSC Resolutions’. However, the recent EU statement, like others making allegations against Iran with respect to its nuclear programme, is vague and imprecise in terms of content of the obligations allegedly breached by Iran. It states that ‘[s]anctions are a response to Iran’s violations of its international obligations’, but it fails to give a precise indication of exactly what obligations would have been breached. In fact, it is noteworthy that the statement limits itself to pointing to the violation by Iran ‘of several resolutions of the United Nations Security Council and IAEA Board of Governors resolutions’, and does not state explicitly that Iran would have breached either its Safeguards agreement with the IAEA, or the NPT itself (which mandates in its Article III the implementation of such safeguards). I have shown previously (here and here on EJIL:Talk!) that it is very dubious that EU sanctions on Iran agreed in 2012, including the comprehensive oil and gas embargo and the freezing of assets of the Iranian central bank, actually comply with both procedural and substantive conditions applicable to countermeasures under the 2001 ILC Articles on State Responsibility.

The purpose of this post is to make two further points. First, the IAEA, in making findings (in Sept 2005) of non-compliance by Iran, has not applied properly applicable rules (both procedural and substantive) in its assessment of Iran’s conduct with respect to its obligations under Iran’s NPT Safeguards Agreement’ (CSA). This implies that the legal validity of such finding is, to say the least, very doubtful.

Second, an authoritative legal determination of the issue of Iranian compliance (or non-compliance) with the obligations assumed under the CSA, or a pronouncement on the existence and the materiality of a breach by Iran (in the meaning of ‘material breach’ under Article 60 of the Vienna Conventions) of the latter, has not yet been made and would indeed require the involvement of the ICJ or of an arbitral tribunal. Furthermore, such a pronouncement could not in any case emanate from the IAEA, since the latter is a party to the treaty the breach of which is alleged. It is clear that, as rightly noted by Joyner, ‘[t]he proposition that the IAEA itself can determine in authoritative fashion that the other party to a bilateral treaty, to which it itself is the other member, is in breach of its obligations under that treaty, has no precedent or analogue in international law’ (D. H. Joyner, Interpreting the Nuclear Non-Proliferation Treaty, 92). Admitting the contrary, i.e. the authority of the IAEA to determine unilaterally the existence of a breach of a bilateral treaty to which itself is a party, would constitute a significant challenge to one of the most established principles in the law of treaties, i.e. the pacta sunt servanda principle embodied in Article 26 of the 1969 and the 1986 Vienna Conventions.There is a dispute between Iran and the IAEA as to whether Iran is in ‘non-compliance” with its obligations under the NPT regime. In September 2005, after three years of investigation and attempts at solving the outstanding issues regarding Iran’s nuclear program, the IAEA Board of Governors adopted a Resolution finding that Iran’s ‘failures’ and ‘breaches’ of its ‘obligations to comply with its NPT Safeguards Agreement’ (CSA) amounted to non-compliance in the context of Article XII.C of the Agency’s Statute’. Iran for its part argued that

there has never been any reference in the Agency’s reports to any ‘non-compliance’ by Iran’ in the meaning of diversion of nuclear materials to military activities (see INFCIRC/837).

 

The central issue is whether the ‘failures’ by Iran, identified by the IAEA (see e.g. GOV/2003/40), to meet its obligations under its Safeguards Agreement, with respect to ‘the reporting of nuclear material, the subsequent processing and use of that material and the declaration of facilities where the material was stored and processed’, amounted to non-compliance in the context of Iran’s CSA. Article 1 of Iran’s CSA states that its ‘exclusive purpose’ is ‘verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices’. The notion of diversion is therefore central to the purpose of IAEA safeguards and is the decisive criterion for any appreciation of non-compliance. In other words, a finding of non-compliance with safeguards in the context of Iran’s CSA (or of any other bilateral comprehensive safeguards agreement, the so-called INFCIRC/153-type safeguards agreement) would essentially be the consequence of a finding, or at least of the presence of strong and consistent elements of evidence, of diversion of nuclear materials in Iran to nuclear weapons. This means that a finding of non-compliance would imply, as stated in Article 19 of Iran’s CSA, that ‘the Agency is not able to verify that there has been no diversion of nuclear material required to be safeguarded under this Agreement, to nuclear weapons or other nuclear explosive devices’. The plain meaning of the provision of Article 1 of Iran’s CSA stating that verification of non-diversion to nuclear weapons is the ‘exclusive purpose’ of the CSA is confirmed inter alia by the authoritative (albeit unofficial) negotiating history of the NPT (3 volumes available here), by Ambassador Shaker (see M. I. Shaker, The Nuclear Non-Proliferation Treaty: Origins and Implementation, 1959-1979, vol. II, at 709-710). This implies that, as rightly noted by M. I. Shaker, the sanctions foreseen in Article XII.C of the IAEA Statute may be set in motion ‘[i]f safeguards fail after all to deter diversion and if there are strong indication that diversion has taken place‘ (M. I. Shaker, ‘The Evolving International Regime of Nuclear Non-Proliferation’, 321 Recueil des Cours (2006) 9, at 79).

Applying such interpretation to the case considered, where there had been no conclusive finding, nor strong and consistent elements of evidence, of diversion of nuclear materials in Iran to nuclear weapons, one can conclude that the equation made by the IAEA between ‘failures’ by Iran to meet its obligations under its CSA with instances of non-compliance in the meaning of the CSA and the IAEA Statute, rested on an incorrect interpretation of Article 1 of Iran’s CSA.

There is also disagreement over a second, closely related issue, regarding the scope of safeguards to be applied, as provided for in Article 2 of Iran’s CSA. The point is the assertion by the IAEA (and various IAEA member States) that the Agency’s mandate extends to verify ‘both the non-diversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities in the State (i.e. completeness)’ (see e.g. GOV/2013/27, para. 67, fn. 67).

In that respect, as already observed by Joyner and myself, a review of the Board discussions at the time of negotiation within the IAEA of the model Additional Protocol (AP), shows that it can hardly be contended that there has been a subsequent agreement regarding the interpretation or application of INFCIRC/153-type CSAs between States parties to the IAEA Statute and/or parties to the NPT, in the meaning of Article 31.3(b) of the 1986 Vienna Convention, which would have resulted in an extension of the IAEA’s mandate, allowing it to verify both the non-diversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities in the State (i.e. completeness).

An examination of the practice of the IAEA in the implementation of safeguards in other countries found in non-compliance with their CSA (Egypt) or AP (South Korea) is also relevant, and points to the same conclusion.

In light of these various interpretative elements, it appears that the interpretation of Article 2 of Iran’s CSA which reads its terms as authorizing the IAEA to verify both the non-diversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities (i.e. completeness) in Iran, is in fact incorrect.

That being said, it is obvious that, by entering into a CSA with the IAEA, Iran has accepted the role of the IAEA in monitoring its compliance with its safeguards undertakings, under the conditions agreed in the CSA. Iran is thus supposed to have agreed to the power of the IAEA’s BoG, upon findings made by IAEA inspectors, to issue a statement of compliance (or non-compliance) by Iran. But a determination of non-compliance by the BoG is not per se a determination of breach of the CSA. The reason for a strict distinction between the two determination processes is that, while the BoG actually possesses (under the modalities set out in the CSA) the right to make a determination of non-compliance with the CSA, it is not, however, endowed with the authority to make a determination of breach of the CSA.

As a rule, the process of determination of breach of a treaty is carried out through the application of the methods of dispute settlement listed in Article 33 of the UN Charter, and generally used in the determination of breach of any international obligation (see e.g. M. M. Gomaa, Suspension or Termination of Treaties on Ground of Breach (1996) 142). Determination of breach of treaty, being a determination of an internationally wrongful act, is governed by general international law. It is interesting at this point to have a close look at the provisions of Article 60(2)(b) of the 1969 Vienna Convention, according to which a ‘material breach’ of a multilateral treaty entitles a party ‘specially affected’ by the breach to ‘invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State’. Anthony Aust has observed that ‘the use of ‘invoke’ means that a party may not simply declare a treaty at an end because of a perceived breach’ (A. Aust, Modern Treaty Law and Practice (2007) 293). Rather, subject to such right as it may have to take countermeasures, the affected party is required by Article 33 of the UN Charter to seek a peaceful settlement of the dispute, and more particularly, to follow the procedure in Articles 65 to 68 of the Vienna Convention. It has been rightly noted that ‘[i]t is implicit in the wording of Article 60 that responses can only be taken against actual violations of a treaty’ (Simma and Tams, ‘Article 60’, in O. Corten and P. Klein (eds), The Vienna Conventions on the Law of Treaties, 1351, at 1358). Thus, ‘Article 60 does not justify responses taken against alleged breaches of a treaty’ (ibid.).

This raises the issue of who is competent to determine the existence of a material breach. As long as the grounds invoked by one party to a treaty for termination or suspension have not been established as constitutive of a material breach, they remain mere allegations (Gomaa, op. cit., at 141). Indeed, ‘[t]here is no rule in the law of treaties which enables one or several parties to denounce a treaty, at their discretion, by simply alleging material breach by another party’ (Ibid., at 141). In the case of Iran, there is a dispute, i.e. a ‘disagreement on a point of law or fact, or a conflict of legal views or interests between two persons’ (PCIJ, Mavrommatis Case (1924)), related to implementation and application of a treaty (the CSA). As such, this dispute may be settled either by a judicial forum or by non-judicial means. It is true that dispute settlement in arms control law ‘is primarily of a non-judicial nature and only very rarely, if at all, judicial’ due to the political and strategic sensitivity of most issues implied (G. Den Dekker, The Law of Arms Control, 108-109).  But it remains that findings of breach of treaty resulting from non-judicial dispute settlement procedures ‘are not legally binding and most often bear the character of advice or recommendation on how to solve the dispute (rather than being an estimate of the degree of compliance)’ (Ibid.). This is why, as a matter of principle, it can be said that a truly authoritative determination of material breach of the CSA (and the same may be said of a breach of the NPT itself, as of any other international treaty) could only emanate from an international judicial body having appropriate jurisdiction over the dispute.  It has been observed in that respect that

[i]n the case of the IAEA, a review of its constituting instrument, the IAEA Statute, yields compelling evidence that the IAEA was not intended by its creators to exercise a judicial role. Rather, it was to perform a technical role of verifying the disclosures and accounting of nuclear materials and activities occurring within the boundaries of states that entered into safeguards agreements with the organization. (D. H. Joyner, Interpreting the Nuclear Non-Proliferation Treaty, 91)

 

Here it may be noted that general principles of procedural law regarding the burden of proof, and the standard of proof to be applied to the determination of non-compliance with a treaty commitment, assume a considerable importance in the context of settlement of a dispute over allegations of treaty non-compliance, be it referred to a judicial forum or settled through a non-judicial treaty mechanism. These procedural requirements, as emphasized inter alia by the ICJ in the Corfu Channel and the Genocide cases, while elaborated in a judicial context, shall indeed a priori be deemed relevant in the context of compliance mechanisms in the framework of international organisations or treaty bodies, and in specie in the IAEA verification process. To what extent are these principles relevant to the case considered? As a matter of principle, allegations of a particularly grave character (obviously such as the diversion of nuclear materials by a State to the manufacturing of nuclear weapons), shall be established through the application of a high standard of proof. In other words, it may be argued that the principle applied by the ICJ, according to which facts underlying claims against a State involving charges of exceptional gravity (such as, for instance, genocide) require the full conviction of the court (the ‘beyond reasonable doubt’ standard), shall be applied as well even in the context of an international dispute of which no court or tribunal has been seized. As a matter of fact, the Iranian government considers that conclusive evidence of diversion of nuclear material was an essential pre-condition for referring its nuclear program to the Security Council, and argues that since this pre-condition was not fulfilled, the Security Council has been involved in its nuclear program in contravention with the IAEA Statute.

What is obvious is that the assessment by the IAEA, in its November 2011 report (GOV/2011/65), of ‘overall credibility’ of documents deemed ‘indicating that Iran has carried out activities that are relevant to the development of a nuclear explosive device’ does not correlate to the ‘beyond reasonable doubt’ standard of proof required regarding such allegations of an exceptional gravity.

Even if the hypothesis of involvement of an international court or tribunal in the dispute may appear remote at present, a determination of (non-)compliance or of occurrence of a ‘material breach’ by Iran in the case considered could be effected by the ICJ, for instance in the context of an application made by Iran before the ICJ against one or some States which have, through the IAEA’s BoG, referred the Iranian case to the Security Council and/or have enacted sanctions against Iran. This would raise, however, the problem of the jurisdictional basis of an application before the ICJ.

 

0

A Shared Responsibility Trap: Supplying Weapons to the Syrian Opposition

A Shared Responsibility Trap: Supplying Weapons to the Syrian Opposition

Syran Opposition Flag (Source: Wikipedia)

Syrian Opposition Flag (Wikipedia)

Cross-posted at the SHARES Blog

In the last few weeks, a shared responsibility trap has arisen in relation to the conflict in Syria. On 4 June 2013, the Report of the Independent International Commission of Inquiry on the Syrian Arab Republic documented that anti-government forces have engaged in a wide range of violations of human rights and international humanitarian law. At the same time, several States are inching towards openly supplying the Syrian opposition with arms. On 27 May, the Council of Ministers of the European Union decided not to renew the arms embargo against Syria. On 14 June, the United States announced that it plans to provide weapons in response to its finding that Syria has used chemical weapons.

 States that are now considering supplying weapons to the opposition forces in Syria run a risk of falling into a shared responsibility trap. They may have noble motives in seeking to save the population from atrocities. They may even consider that they should act in the spirit of the responsibility to protect, and should exercise a shared responsibility to protect individuals against the Assad regime. But there is a twist to such noble aims. States that provide weapons to the opposition will eventually share the responsibility for whatever the opposition does with those weapons.

 

Flag of Syria (Source: Wikipedia)

Flag of Syria (Wikipedia)

 

Of course, delivering weapons to opposition groups that aim to overthrow the sitting government of the Republic of Syria is wrongful in itself, irrespective of any wrongs that may be committed by the opposition. This was discussed in an earlier post by Dapo Akande. Depending on their nature and purpose, such delivery can be contrary to the prohibition on the use of force (article 2(4) UN Charter). This will also hold for the military action needed to enforce a no-fly zone that is now being considered. It could be argued that arms deliveries that would have as their sole purpose the protection of civilians (which appears to have been the aim of the EU Ministers) need not be contrary to the prohibition on the use of force. But the assumption that such deliveries can be clearly distinguished from other deliveries and be limited to protection purposes seems doubtful. In any case, this would not make them lawful, as arms deliveries would remain contrary to the principle of non-intervention in the domestic affairs of Syria. Arms deliveries to the opposition in Syria moreover may be contrary to UN Security Council Resolution 2083 (2012), which prohibits supplying arms to persons or entities linked to Al-Qaeda. It has been reported that a recent supply of weapons to the Syrian rebels by Qatar, with US approval, ended up being used by groups linked to Al-Qaeda.

The exceptions that in other cases may remove the wrongfulness of arms deliveries do not lead to a different outcome in this particular factual context. There is neither a Security Council Resolution that allows for such deliveries, nor consent of the Assad government (which, to the dismay of many Western governments, still qualifies as the government of Syria). Weapons deliveries cannot be qualified as a lawful countermeasure, also taking into account that the true aim of such deliveries would appear to be the overthrowing of the Assad regime rather than only ending the wrongs. As pointed out by Dapo Akande, nor does the label ´humanitarian intervention´, which was accepted by both the United Kingdom and the Netherlands as a potentially lawful option, provide a lawful exception. The fact that the US now throws chemical weapons into the equation does not make weapons deliveries lawful. Use of chemical weapons may lead to aggravated moral concerns, but there is no basis in international law for transforming a wrong into a right when chemical weapons are used.

All of this means that States supplying weapons will in principle be responsible for their own acts, quite irrespective of what the opposition does with such weapons.

However, the wrongs may become connected. It has been said (for instance, in Austria’s policy paper) that States that supply weapons to opposition forces may be complicit with the opposition forces. The argument is not an easy one to make. International law does not have a rule that provides for complicity of States for aiding non-state actors (unless perhaps a treaty provision applies, such as the Genocide Convention). The EU safeguards that have been built into the EU Code of Conduct on Arms Exports seek to prevent such complicity. They do not allow for trade in arms when there is a clear risk that the equipment might be used in the commission of serious violations of international humanitarian law, or where the export of weapons would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination. Violation of this Code of Conduct does not lead to responsibility under international law.

However, an assessment of the legal consequences of the supply of arms has to take a more long-term perspective. The ulterior motive would appear to be to secure the demise of the Assad regime and to propel the opposition into power. The Dutch government has outlined this scenario in a letter to the House of Representatives of 4 June. This states that ‘[t]he lack of legitimacy of the Assad regime, and the wide recognition of the [Syrian National Coalition for Opposition and Revolutionary Forces] as a legitimate representative of the Syrian people, has led the government to believe that supplying material to the [Syrian National Coalition for Opposition and Revolutionary Forces] in extraordinary situations and under specific conditions need not be contrary to public international law.’

As a matter of international law, this is a doubtful legal basis for considering the delivery of weapons to be lawful. Neither the legitimacy of a sitting regime nor the recognition of opposition forces as the legitimate representative of the people of Syria are relevant for the assessment of lawfulness of arms deliveries to the opposition (perhaps this may be different in the context of self-determination, as discussed by Dapo Akande).

But the letter does provide an interesting insight into the preferred, and perhaps expected, trajectory. The thought appears to be that in the process of eroding the legitimacy of an incumbent regime, and prior to the rise of a new regime that is considered to be the representative of the State, a grey zone exists in which providing support to rebels need not  be contrary to public international law. In the abstract, this is not an unreasonable position. However, a State that concludes that the process has indeed made sufficient progress and supplies weapons faces a double risk.

If the Assad regime does survive, which is increasingly likely, arms deliveries will be considered unlawful. In that case, the argument that the regime was at some moment no longer legitimate will not be a valid one under public international law. Weapons deliveries will then be wrong, aside from how the opposition uses the weapons.

But if the opposition forces do prevail, as is hoped by the States now considering the supply of weapons, another risk presents itself. No one will complain that the supply of arms has breached the principle of non-intervention. But the supply of arms may well result in a shared responsibility. Syria, as a State, can, on the basis of the principle laid down in article 10 of the Articles on the Responsibility of States for Internationally Wrongful Acts, be held responsible for wrongful acts committed by the then opposition groups.

This scenario exposes the shared responsibility trap. Driven by moral concerns that lead them to abandon their bystander role, States may start to supply weapons to the opposition, propelling the opposition to victory. But once that victory has been achieved, those States may share the responsibility for the acts of what were once the opposition forces.

 

 

Página 1 de 5112345...102030...Última »