Recent Posts

A Summer of Shifting Alliances?

by Deborah Pearlstein

Just keeping up with the news on international terrorism/counterterrorism this summer could be a full time job. Among many other potentially significant reports, I wanted to highlight this statement recently released by Al Qaeda in the Arabian Peninsula (AQAP), often described by U.S. officials as the branch of Al Qaeda that currently poses the greatest threat to the United States. The AQAP statement announces the group’s support for the Islamic State (formerly known as ISIS or ISIL).

“We announce solidarity with our Muslim brothers in Iraq against the crusade. Their blood and injuries are ours and we will surely support them…. We assert to the Islamic Nation [all Muslims worldwide] that we stand by the side of our Muslim brothers in Iraq against the American and Iranian conspiracy and their agents of the apostate Gulf rulers.”

The statement goes on to offer various bits of non-rocket-science tactical advice to the Islamic State – watch out for spies, don’t assume electronic communications are unmonitored, digging trenches can help protect against the impact of shelling (thanks General Pershing). While I can’t generally vouch for the journalistic practices of the Yemen Times (on which I’m relying for the AQAP statement), this seems a simple direct quotation.

Why does this matter? A few reasons potentially. First, core Al Qaeda (led by Al Zawahiri) has condemned ISIL/the Islamic State and dissociated itself with the group. It is unclear how core Al Qaeda will take this move by one of its branches to voice its support for ISIL, but if AQAP intends to signal a real move away from core Al Qaeda, it would be another significant weakening of Al Qaeda’s regional and international capabilities (and a significant boost to ISIL). Second, AQAP has long been understood by the United States as a force “associated with” Al Qaeda for purposes of coverage by the statutory AUMF (authorizing the President to use force – targeting, detention, etc. – against those groups that attacked us on 9/11). If AQAP is moving to break its association with core Al Qaeda, the statutory argument that AQAP remains one of groups Congress meant to authorize force against in 2001 becomes much weaker. Given that the United States has reportedly continued to conduct targeting operations against AQAP forces in Yemen, this poses a potentially significant legal wrinkle in administration arguments that it enjoys statutory authorization for those operations. On the other hand, it would strengthen any case the administration might make to Congress for new authority to use force against ISIL and its associates. Will the administration seek such new congressional authority, particularly when the War Powers Act 60-90 day clock runs on current U.S. operations in Iraq (after which the President is required to seek congressional authorization)? Stay tuned.

Emerging Voices: Controversy on the Definition of the Cambodian Genocide at the ECCC

by Melanie Vianney-Liaud

[Mélanie Vianney-Liaud is a PhD Candidate in International Law at the Aix-Marseille University in France.]

Many international Human Rights authorities, including the United Nations General Assembly talked about the “Cambodian genocide” to designate the atrocities of the Khmer Rouge. Yet, while the term “genocide” undoubtedly has considerable appeal, it turns out to be legally inappropriate to describe the massacre of 1.7 million of Cambodians from 1975 to 1979. At the Extraordinary Chambers in the Courts of Cambodia (ECCC) – the court in charge of trying the Khmer Rouge – the indictment of the last surviving Khmer Rouge senior leaders, known as “Case 002”, includes very limited genocide charges, only with respect to crimes committed on two minority groups: the Cham and the Vietnamese. Predictably, this decision disappointed many victims.

The trial began in June 2011. However, in September 2011, the Trial Chamber decided to sever Case 002 into smaller trials and limited the scope of the first trial to the evacuation of Phnom Penh on 17 April 1975 and movements of population in other regions of Cambodia. The genocide charges were excluded from the scope of this first trial. On August 7, 2014, the Chamber found the Accused guilty to have committed the crimes against humanity of murder, political persecution and other inhumane acts through their participation in policies to forcibly displace people. It sentenced them life imprisonment.

The Accused are currently trying within a second trial whose scope includes the genocide charges. Since this trial has started on July 30, 2014, it seems appropriate to clarify some of the complexities of the crime of genocide, generated by the specificities of the Cambodian context and the legal framework of the ECCC.

Genocide has been defined in the 1948 Convention on the Prevention and Repression of the Crime of Genocide as requiring the intentional destruction of “a national, ethnical, racial or religious group as such”. The enumeration of specific protected groups implies that the perpetrators’ conception of the victim group bears some relation to one of these protected groups. The Khmer Rouge regime is known for its system of terror and arbitrariness. Conditions of living were so extreme that a substantial part of the population died without that seemed to be directly imputable to group-based persecutions. However, indications of the targeting of particular groups undeniably exist in the case of the Khmer Rouge. This is the case for example, and among others, of the group of educated people and city dwellers referred to as “new people” by the Khmer Rouge. Contrary to “base people,” “new people” did not join the Khmer Rouge revolution prior to April 17, 1975 when Phnom Penh fell into Khmer Rouge’s hands. Forcibly transferred from cities to countryside, “new people” members were often targeted based on this identity (Indictment, § 227). This group however, does not fall under the listed classification defined in the Genocide Convention as the distinction made by the Khmer Rouge was based on an individual’s socioeconomic background.

Thus, although the Khmer Rouge had policies of group discrimination, both in regard to ethnic minorities as well as with respect to groups identified within the ethnic Khmer- majority, the characterization of genocide within the definition of the Convention only applies to crimes committed on minority groups. Many victims have therefore seen the crimes for which they have suffered be excluded from the characterization of the “crime of crimes,” even though they are victims of crimes of the same gravity as those committed against the minorities.

The definition introduced by the Genocide Convention is too narrow to mirror the historical analysis of the Khmer Rouge criminal phenomenon. The fact that the Khmer Rouge targeted groups within the Khmer-majority population shows that the strict enumeration of protected groups is inappropriate. The question that arises then is whether it would be conceivable to have this definition evolved to correspond with the social reality of the “Cambodian genocide”.

Cambodia ratified the Genocide Convention in 1949. Consequently, since its entry into force in 1951, Cambodia has been submitted to the conventional obligation to “enact (…) the necessary legislation to give effect to the provisions of the Convention” (Convention, Article V). However, under the Khmer Rouge, the Convention had not been received into national law yet. This reception only occurred in 2001, with the creation of the ECCC. The 2003 international agreement between the United Nations and Cambodia and the 2004 amended domestic law which establish the court, provide both for its jurisdiction over the crime of genocide “as defined in the 1948 Convention.” However, and despite these provisions, the domestic law then gives a definition of the crime of genocide that differs in key points from the definition set out in the Convention.

A state is not prohibited by the 1948 Convention from adopting a broader definition of genocide. The Convention only adopted by a convention a principle which already existed in international customary law. Thus, the reception of the Convention into national legal orders has often resulted in a broadening of the definition of the crime. France, for instance, has gone further adding the “group determined by any (…) arbitrary criterion” to the groups protected by the Convention (French Penal Code, Article 211-1).

In the particular case of the ECCC however, the differences between the Convention and the Law have important implications for its subject-matter jurisdiction. In the English version of the ECCC Law, with regard to the list of underlying crimes, the Law indeed replaces the expression “any of the following acts” with “any acts” and the phrase ‘as such’ referring to “group” in the Genocide Convention with ‘such as’ but referring to “acts”. (more…)

A Tale of Two Baarles: Crazy-Quilt Maps and Sovereignty Over Certain Frontier Land

by Chris Borgen

Map credit: Wikimedia Commons via Radiolab

Map credit: Wikimedia Commons via Radiolab

Radiolab has  posted an informative and entertaining essay entitled “How to Cross 5 International Borders in 1 Minute without Sweating.” It describes the intertwined municipalities of the Dutch town Baarle-Nassau and the Belgian town Baarle-Hertog. Here’s the evocative description by Robert Krulwich of Radiolab:

The hunky yellow bit labeled “H1″ (for Hartog) toward the bottom is mostly the Belgian town. But notice those little white bits inside the yellow — labeled “N1, N2, N3″ — those are little patches of the Dutch town (N for Nassau). The two towns are not geographically separate. Instead, they’re like M&M’s in a candy bowl. There are 22 distinct Belgian bits, and a dozen or so Dutch bits, and they are sprinkled together; so sometimes you’ve got bits of Belgium inside Dutch areas, and sometimes Dutch patches inside Belgian neighborhoods. They vary in size. The largest is 1.54 square kilometers, the smallest, an empty field, is 2,632 square meters.

Krulwich is correct to note that in the Middle Ages “Checkerboard maps were common.” One reason they were common was that feudalism had a different conception of sovereignty than the “modern” conception of sovereignty that became prevalent in the years following the Peace of Westphalia in 1648. Rather than strictly territorial, medieval sovereignty was in part relational, between lords and subjects as well as between and among varying levels of nobility. With an emphasis on personal loyalty and duty, the feudal conception of sovereignty was like a network of individuals with multiple linkages and relationships.  Displaying such relationships as a territorial map with bold-line boundaries results in a crazy quilt that may actually obscure the complex interwoven relationships.

But the Westphalian emphasis on territorial sovereignty called for such bold-line maps. Areas that started as territorial patchworks were usually consolidated and rationalized. Krulwich continues:

But for some reason, writes Alastair Bonnet in his new book, Unruly Places, it didn’t [happen here]. During Napoleon’s time, villages were swept cleanly into one nation or another, the borders tidied up, but apparently — and no one can quite explain why — Baarle-Nassau and Baarle-Hertog escaped the broom. Maybe they were too small, too unimportant, but they made it through, their mosaic-ness intact, becoming, Bonnet says, a “living laboratory of medieval micro-borders.”

For more detail on the land grants, treaties, planning commissions, and other aspects of the history of these two towns, see this website.

This mosaic of sovereignty has led to some incredible results. In a 2008 post on Baarle-Hertog/ Baarle-Nassau,  BLDGBLOG reported that:

Sarah Laitner, at the Financial Times, adds that “women are able to choose the nationality of their child depending on the location of the room in which they give birth.”

For more about the administration of Baarle-Hertog and Baarle-Nassau, see this .pdf.

The contested status of two specific plots created by these micro-borders led to a dispute before the International Court of Justice, Sovereignty over Certain Frontier Land (Belgium/ Netherlands). The ICJ found that the plots in question were under Belgian sovereignty.

While perhaps the most complex territorial enclave, the two Baarles are not the only examples; see  the website European Small Exclaves. You can also see more about Swiss cheese sovereignties and cartographic discrepancies in this post I wrote a while back. (And the part about cartographic discrepencies should really be considered by that guy trying to found a Kingdom of North Sudan for his daughter…)

 

 

Emerging Voices: Interstate Arbitration: Awakening the “Sleeping Beauty of the Peace Palace”

by Tamar Meshel

[Tamar Meshel is an SJD Candidate at the University of Toronto Faculty of Law.]

In the early 1990s, a trend emerged among international legal scholars and practitioners aimed at reviving the Permanent Court of Arbitration (PCA) and, by extension, the use of arbitration to resolve interstate disputes peacefully. The PCA was created during the 1899 Hague Peace Conference, following a century of successful interstate arbitrations such as those between the United States and Great Britain under the Jay Treaty and the Treaty of Ghent, and it reflected the high hopes of the conference participants that the institution would bring about world peace through arbitration. However, after a decade or two of glory, the PCA gradually fell into disuse as states lost interest in arbitration as a dispute resolution mechanism, and it became aptly known as the “Sleeping Beauty of the Peace Palace” (Sam Muller & Wim Mijs, “The Flame Rekindled” (1993) 6(2) Leiden Journal of International Law). There are many political, historical, and legal rationales for this downturn, including the outbreak of the two World Wars, changes in the international political system, and the creation of the PCIJ and ICJ. This post focuses on another development that, while perhaps less recognized, is arguably responsible in part for the decline of interstate arbitrations during the 20th century, and is still relevant today. This development is the gradual ‘judicialization’ or ‘legalization’ of interstate arbitration to the point of being effectively equated with judicial settlement and both its original nature and distinctive qualities becoming imperceptible and inconsequential.

The evolution of interstate arbitration

The origins of arbitration can be traced back to ancient Greece, where arbitrators were seen as quasi-diplomats rather than judges, and could therefore “consider the equity of the case, whereas a judge is bound by the letter of the law” (Aristotle, cited in M.C.W. Pinto, “The Prospects for International Arbitration: Inter-state Disputes” in A.H.A. Soons, ed, International Arbitration: Past and Prospects (Martinus Nijhoff Publishers, 1990)). Arbitration continued to be used during the Middle Ages to end wars by reconciling the warring parties, and when the modern era of interstate arbitration began with the signing of the 1794 Jay Treaty between Great Britain and the United States, it was perceived as a hybrid process that combined legal proceedings with diplomatic negotiations. For instance, some of the disputes submitted to arbitration under the Jay Treaty were to be decided according to “justice, equity, and the laws of nations”, and their successful settlement was largely credited to the commissioners’ “spirit of negotiation and compromise”. While they rendered binding decisions and applied legal principles, the commissioners also “act[ed] to some extent as negotiators rather than as judges … temper[ed] justice with diplomacy [in order] to give a measure of satisfaction to both sides” (Pinto, 1990).

This perception of interstate arbitration persisted in the first decades of the 20th century. Some states, for instance, distinguished between judicial settlement, designed to resolve “legal disputes”, and arbitration, designed to resolve all other disputes ex aequo et bono while “having regard to the general principles of international law” (e.g., the 1928 Geneva General Act for the Pacific Settlement of International Disputes (.pdf); the 1957 European Convention for the Peaceful Settlement of Disputes). Arbitrators were also “prepared to waive a strict application of the law in order to achieve an acceptable settlement” in interstate disputes, such as the 1909 Casablanca case and the 1910 North Atlantic Fisheries case (M.C.W. Pinto, “Structure, Process, Outcome: Thoughts on the ‘Essence’ of International Arbitration” (1993) 6 Leiden Journal of International Law). However, as a result of the growing global quest during the 20th century for “orderly” interstate dispute settlement through the application of law, this quasi-diplomatic use of interstate arbitration gradually fell into disuse, and the dominant perception became that of the International Law Commission, which viewed it as “a procedure for the settlement of disputes between States … on the basis of law” (Pinto, 1990 (.pdf)). Accordingly, states increasingly restricted or excluded the power of arbitrators to decide disputes on the basis of equity or non-legal considerations and in all but a few rare, yet successful, cases (e.g., the 1968 Rann of Kutch arbitration; the 1986 Guinea-Guinea Bissau arbitration) arbitrators followed suit. The perception that only ‘judicial’ arbitration based on law should be “arbitration properly so called” thus became the conventional wisdom, even though in some cases, such as the 1977 Beagle Channel arbitration, it failed to resolve the parties’ dispute (Pinto, 1990, 1993). (more…)

Weekly News Wrap: Monday, August 18, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Asia

Europe

Middle East and Northern Africa

Americas

UN

Events and Announcements: August 17, 2014

by Jessica Dorsey

Calls for Papers

  • A reminder: the AALS has announced a call for papers on International Human Rights New Voices Panel for the AALS Annual Meeting taking place January 2-5, 2015, in Washington, D.C. The deadline to submit a paper is September 15, 2014. More information can be found here.
  • The Australian International Law Journal, published by the International Law Association (Australian Branch), calls for papers of between 6,000 -12,000 words on topics of public or private international law.  Casenotes (2,000-3,000 words) and Book Reviews (1,000 words) within the area of public or private international law are also welcomed.
  • A call for papers: OGEL special on “Laws Regulating the Polish Energy Sector Transition.” This special wil be focusing on laws regulating the Polish energy sector and the transition that is currently taking place. Guest editors for the special are Michal Domagala (Assistant professor in John Paul II Catholic University of Lublin) and Piotr Pszczel (Head of Energy Task at the Kawalko&Godlewski law firm, Warsaw, Poland). Deadline: papers should be submitted by the end of September 2014 to the editors.
  • Another call: OGEL Special Issue on “Emerging Issues in Polar Energy Law and Governance.” The Polar areas provide special challenges, opportunities and restrictions regarding the development of energy resources, particularly oil and gas. The potential for enormous untapped energy reserves and the international law challenges of maritime boundaries borders and competing claims of sovereignty will make the Arctic region home to one of the most compelling sets of international legal issues in the 21st Century. The renegotiation of the Madrid Protocol in the Antarctic, which currently prevents mining in the Antarctic regions, combined with similar issues of competing claims of sovereignty, and the overarching Antarctic Treaty Framework means that potential energy resource development Antarctic region will become increasingly controversial and prominent. The guest editor for this special issue is Dr Tina Hunter (Director of the Centre for International Minerals and Energy Law Centre at the University of Queensland, Australia, and an Honorary Research Fellow at the University of Aberdeen, Scotland). Deadline: A one-page proposal should be submitted by 15 November 2014. Final papers should be submitted by 15 March 2015.

Announcements

  • symposium on environment and international law has recently been published in the Leiden Journal of International Law (volume 27, issue 3). Entitled ‘Locating Nature’, this group of articles explores the discipline’s relationship with the natural environment. While international lawyers have focused on crafting solutions to environmental problems, less attention is paid to the disciplinary role in fostering harmful and unsustainable behavioral patterns. Environmental issues are usually relegated to the specialized field of international environmental law. This symposium explores instead the role of nature in the general discipline, arguing that the natural environment is a determinative factor in shaping international law, and assumptions about nature lie at the heart of disciplinary concepts such as sovereignty, development, economy, property, and human rights.
  • The Fourth Annual Junior Faculty Forum for International Law has been launched by the Forum’s founding co-convenors (Dino Kritsiotis – Nottingham; Anne Orford – Melbourne; J.H.H. Weiler – Florence). The Fourth Forum will take place in Florence, Italy, in June 2015, and the call for applications is here. Please note: the closing deadline for applications is December 15.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Weekend Roundup: August 9-15, 2014

by An Hertogen

This week on Opinio Juris, we started with follow-up on last week, with Julian raising more issues with the emerging Article II humanitarian intervention power and Kevin sharing his final thoughts on the Bar Human Rights Committee’s letter to the OTP in relation to the situation in Gaza.

More on the Gaza situation in a post by Kristin Hausler and Robert McCorquodale, who asked whether attacks on schools, teachers and students ever be legitimate under international law.

This week, we welcomed Lucas Barreiros, Stacey Henderson and Marcos Kotlik to our Emerging Voices symposium, who, respectively, compared the European and Inter-American Human Rights Courts, discussed R2P and measures-less-than-force in the context of protecting children in armed conflict and proposed enhanced participation of civil society organizations in Committee on Enforced Disappearances.

Another guest post, by Priya Urs, asked whether states are injured by whaling in the Antarctic.

Of our permanent bloggers, Kevin argued that the attack on MH17 should be framed as murder not as a war crime, Chris asked whether the US should change its approach to zero-day exploits and Kristen wrote about ensuring robust peacekeeping missions.

Finally, Jessica wrapped up the news and I listed events and announcements.

Many thanks to our guest contributors and have a nice weekend!

Emerging Voices: Civil Society Organizations and the Committee on Enforced Disappearances–Towards Enhanced Participation in the Decision-Making Processes

by Marcos Kotlik

[Marcos D. Kotlik is a Lawyer, University of Buenos Aires, School of Law –UBA– This post is a part of his ongoing research as a Masters in International Relations candidate and as a research scholarship holder at UBA.]

In 2000, Kofi Annan submitted that “decision-making structures through which governance is exercised internationally must reflect the broad realities of our times”. He explained that better governance is achieved through greater participation and accountability and argued that the international public domain must be opened up to many actors, including those from the private sector and civil society organizations.

A few years earlier, discussions had begun within the UN that would lead to the conclusion in 2006 of the International Convention for the Protection of All Persons from Enforced Disappearance (ICPAPED). During its negotiation process, non-governmental organizations played a very active role on many levels, most notably on the treaty’s design.

Whether we call them “NGOs”, “civil society organizations” or “human rights organizations” (I will not discuss the scope of each category), I propose to examine their involvement in the negotiation of the ICPAPED as an example of global policy networks. Further, I believe that this type of dynamic throughout the treaty’s design process enabled these organizations to ensure their own enhanced participation in the decision-making processes to come, mainly through their intervention before the Committee on Enforced Disappearances.

The design of the ICPAPED

The interest of civil society organizations on the issue of enforced disappearance has much to do with several countries’ tragic histories and can be traced some decades back (as depicted here (.pdf)by Manfred Nowak). After the UN General Assembly issued the Declaration on the Protection of All Persons from Enforced Disappearance in 1992 and the OAS General Assembly adopted the Inter-American Convention on Enforced Disappearance of Persons in 1994, human rights organizations focused their lobbying in favor of a draft UN Convention.

In 1998, the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the UN Commission on Human Rights approved the draft Convention in its fiftieth session (.pdf). Resolution 1998/25 requested to “invite […] non-governmental organizations to provide comments on the draft convention” along with governments and intergovernmental organizations. In consequence, the OHCHR held a two-year long consultation process, and by the end of 2000 the Commission collected the comments of eight NGOs (see document 2001/69).

Civil society organizations continued to participate in the elaboration of the Convention, as reported between 2003 and 2006 by the Inter-sessional open-ended working group on a draft legally binding normative instrument for the protection of all persons from enforced disappearance, led by Bernard Kessedjian. Even without considering NGOs’ informal lobbying, these documents demonstrate how they participated in formal debates side-by-side with State delegations, issuing statements and submitting written proposals to modify the final text. The Convention still depended on its final approval by States, but the serious influence of NGOs cannot be ignored.

As early as 2000, Witte, Reinicke & Benner already explained here that “international organizations do at times act as norm entrepreneurs by using networks as platforms to advance norms in such areas as sustainable human development or human rights”. The design process of the ICPAPED suggests that the UN system was able to provide the formal governance structure in order to adopt the treaty, although nurturing an informal “coalition for change” (Annan).

It seems that the idea of different sectors coming together and collaborating “to achieve what none of the single actors is able to achieve on its own” was accomplished taking advantage of civil society’s “voluntary energy and legitimacy” and of the “enforcement and rule-making power and coordination and capacity-building skills” of states and international organizations. The main characteristics of global policy networks –as described by the former Secretary-General (.pdf)– emerged throughout the negotiation of the ICPAPED: a non-hierarchical process gave voice to civil society almost at every stage; it set a global policy agenda, framed debates and raised public consciousness, developing and disseminating knowledge at the universal level concerning enforced disappearance; it seemingly made it easier to reach consensus and negotiate agreements on new global standards; and it most definitely determined the creation of new kinds of mechanisms for implementing and monitoring those agreements. This last feature will be the focus of the next section.

The seed of enhanced participation

(more…)

Robust Peacekeeping Missions

by Kristen Boon

Peacekeeping missions such as the UN’s intervention brigade in the DRC (established within MONUSCO by Security Council resolution 2098) have important legal implications. In particular, if the Brigade is considered a party to the conflict in the Congo, do peacekeepers become combattants?   Can they be captured and detained? For an overview of the main issues see the ASIL analysis by Bruce Oswald here & the new ICRC review.

New peacekeeping missions also raise questions of attribution.   Is the standard of attribution set out in Art. 7 of the Draft Articles on Responsibility of IOs sufficient? How should brigades be considered in relation to the peacekeeping mission as a whole? If wrongdoing occurs, how should responsibility be divided between multiple troop contributing countries and regional forces including NATO and the AU, who may contest any assertion they have international legal personality?

For those interested in this topic, an excellent panel discussion was held at the Irish Mission to the UN this summer.  The panelists, including UN Ambassadors and a retired Force Commander, discuss the “C2” (command and control) structures of peacekeeping missions and their views of future challenges.   The discussion can be viewed here.

In addition, at the upcoming ESIL meeting in Vienna in September, the Amsterdam SHARES project, in conjunction with the ESIL peace and security interest group, has organized a special symposium to tackle some of these issues.  I will be speaking there, and am looking forward to the discussion.

Guest Post: Are States Injured by Whaling in the Antarctic?

by Priya Urs

[Priya Urs has recently received a Master of Law (LL.M.) with a specialisation in International Law from the University of Cambridge, U.K.]

The recent Whaling in the Antarctic decision of the International Court of Justice (ICJ) has unraveled existing debates about the propriety of whaling today, illustrated by the pivotal determination of whether the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II) was in line with the object and purpose of the International Convention for the Regulation of Whaling 1946, and what that object and purpose might be. This issue, in turn, raises less discussed questions about the nature of the obligations the Convention imposes on contracting states; specifically, whether it includes an obligation erga omnes to refrain from commercial whaling. In this brief post I describe what the dispute does and does not tell us about the increasingly multilateral quality of state obligations, allowing even non-injured states like Australia to hold others accountable for obligations owed to the international community as a whole.

Multilateralism in International Law

Australia in its application to the Court alleged that the Japanese Government’s authorization of commercial whaling under the guise of scientific research was a violation of its obligations under international law – the Convention in particular, as well as ‘other obligations’ for the preservation of marine mammals and the marine environment. New Zealand (intervening) went a step further, suggesting that Japan’s actions were a challenge to the system of collective regulation established by the Convention, including contracting parties’ duty of ‘meaningful co-operation’. Japan on the other hand insisted that JARPA II was in line with the treaty’s Article VIII exception for scientific research, also claiming that there exists in customary international law a freedom to engage in whaling.

Considered collectively, the tenor of these various arguments raises a larger question about the very nature of state obligations: have multilateral ‘law-making’ treaties become the dominant source of obligations among states in contemporary international law? Professor James Crawford in a recent publication argues that to a large extent, they have. This trend is evident not only from the pleadings of Australia and New Zealand that conservation is a collective interest among states, but from the framework of the Convention itself. The Court’s discussion of the system of regulation set up by the Convention alludes to the cooperative effort among states contemplated during its drafting. In particular, the majority opinion notes the ‘significant role’ accorded to the Whaling Commission in regulating the activities of contracting states. In sum, whether the Convention amounts to a prohibition on or merely the regulation of commercial whaling, its law-making effect is well established.

The obvious conclusion to be drawn, then, is that multilateral agreements – such as the present Convention – are not merely aggregations of bilateral relationships. Their multilateral effect is manifested in the interest of states like Australia and New Zealand in ensuring mutual compliance irrespective of their ability to make claims to specific injury arising out of Japan’s violation. As a result, irrespective of whether the Convention was intended to prohibit commercial whaling as a conservationist effort, or simply to regulate states’ access to a common resource, this emphasis by the Court reaffirms this trajectory in the development of international law.

Obligations Erga Omnes

What is interesting about the proceedings in this dispute, then, is an issue that was not debated at all. Japan made no challenge to Australia’s standing before the Court (only making a challenge to ICJ jurisdiction using Australia’s reservation to the Convention), seemingly accepting as law the proposition that even though Australia was not an injured state in a bilateral relationship with Japan, it had a legal interest in ensuring widespread compliance among contracting states. This conclusion is purely conjecture, yet, regardless of whether this omission was a conscious decision or a glaring mistake by Japan, it is indisputable that all three parties’ positions in the Whaling dispute fall in line with the ICJ’s gradual recognition of obligations erga omnes over the last half-century.

Quick to offer an apology for its rejection of Ethiopia and Liberia’s public interest claim against South Africa in the South West Africa Cases, in 1970 the Court in its famous dictum in Barcelona Traction identified obligations erga omnes for the first time as obligations owed to the international community generally. It was only in 2012, however, that the question of standing was addressed by the Court directly, affirming in Obligation to Prosecute or Extradite that all states – including Belgium, a non-injured state – had a legal interest in ensuring Senegal’s compliance with the Convention Against Torture 1984.

This trend is reflected most clearly in Article 48 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts 2001 (ARSIWA), a progressive development of the law in which, instead of diluting the definition of an injured state, the ILC ultimately chose to recognise the right of a non-injured state to invoke the responsibility of a state in violation of its international obligations. Though not formally, the ICJ has affirmed the text of Article 48(1)(a) in its 2012 decision in Belgium v Senegal.

It is worth noting, however, that the Court indulged Belgium as a complaining state in a situation where the obligations involved were erga omnes partes only. As a result, its position on the broader category of obligations erga omnes in Article 48(1)(b) – owed to the international community as a whole – remains uncertain. It would appear that Article 48(1)(a) might have been similarly applied in the Whaling decision as involving obligations erga omnes partes on the basis of which Australia could defend its standing before the ICJ. Indeed, the Court seems to have subconsciously restricted itself to its position in 2012, determining the whaling dispute entirely on the basis of the Convention and choosing not to address Australia’s claims to Japan’s ‘other obligations’ outside of it.   

The ICJ’s silence on these developments in the law of standing in the Whaling decision is perhaps an unfortunate result of Japan’s failure to challenge to Australia’s locus standi. It might have been worthwhile for Japan to have argued that Australia had no legal interest in its alleged non-compliance with its treaty obligations, refuting Australia and New Zealand’s characterization of the dispute as involving multilateral obligations of the sort contemplated by Article 48(1)(a).

Conversely, Japan could have taken greater advantage than it did of Australia’s characterization of the Convention as a ‘multilateral regime for the collective management of a common resource’ in its jurisdictional challenge, precluding the need for the ICJ’s resolution of the dispute in the first place. Judges Owada and Bennouna hint at this in their dissenting opinions, each arguing that the self-contained institutional framework created by the Convention should be allowed to take effect in the interest of genuine multilateral cooperation, but stopping short of challenging Australia’s right of standing before the Court.

Is it possible to conclude that the ICJ is inclined towards expanding the content of obligations erga omnes to include efforts towards conservation of common resources? While the peremptory norm against torture might have been persuasive in recognizing Belgium’s claim to locus standi in Obligation to Prosecute or Extradite, strictly speaking, the peremptory status of the norm in question is irrelevant to the determination of whether the obligation to adhere to it is erga omnes. Consequently, it would be inaccurate to suggest that the Court in the Whaling decision has recognized the existence of an international norm against whaling. (more…)

Should the U.S. Government Change Its Approach to Zero-Day Exploits?

by Chris Borgen

Dan Geer, the chief of information security for In-Q-Tel (essentially, the venture capital fund that supports tech innovation for the CIA) gave a wide-ranging keynote speech at Black Hat, a convention of cybersecurity experts.  A video of the speech is available here.

I want to focus on one specific issue among the many he discussed: his call for the US government to publicly disclose the software loopholes and hacks that it purchases.

I have discussed in other posts (1, 2) the market for information regarding security loopholes known as “zero-day exploits.”  The U.S. is already a big player in this market,  purchasing exploits for use by its intelligence and law-enforcement agencies.

Rather than informing producers, purchasers, or users of the software of the flaws, the U.S. government (and other governments that participate in the exploits market) allegedly require non-disclosure agreements from the hackers who sell exploits so that the holes will stay open as long as possible. This has been called a strategy of offense: trying to maximize intelligence gathering capabilities. Geer  paraphrases a former senior NSA official:

If we were to score cybersecurity the way we score soccer, we would be twenty minutes into the game and the score would be 462 to 456. That is to say: all offense.

He further explains: “Offense is where is where the innovations that only states can afford is going on.”

Some have argued that the result is the widespread use of software riven with security flaws that could have been fixed.  Instead, the U.S. should use its market power to make software more secure by purchasing and then disclosing zero-day exploits.  As reported by Wired, Geer argues that by incentivizing disclosure:

the U.S. can drastically lower the impact of international cyberwarfare. [He explains:] “We don’t need intelligence on what weapons our adversaries have if we have something close to a complete inventory of the world’s vulns and have shared that with all the affected software suppliers.”

As far as I understand, proponents of a strategy of maximizing offensive capability assume that computer systems will always have many holes and the U.S. might as well use these flaws to get as much useful intelligence as possible rather than chasing what they view as the illusory promise of real defense.

I do not know enough about the ins-and-outs of computer security architecture to opine as to whether the U.S. should maintain an offensive strategy or move to securing vulnerable systems with a primarily defensive strategy of disclosure. However, I would suggest that a defensive strategy may be strengthened by international coordination.

In any case, if you are interested in issues of cyber-security then Geer’s speech is a must-listen.

[This post has been corrected to fix the misspelling of Dan Geer's name.]

 

Emerging Voices: Protecting the World’s Children: R2P and Measures Less-Than-Force

by Stacey Henderson

[Stacey Henderson is a PhD Candidate and Teaching Fellow at Adelaide Law School, The University of Adelaide, South Australia]

Children are among the most vulnerable during armed conflict.  The existence of special protections for children in the 1949 Geneva Conventions, and the existence of the Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, all attest to the special vulnerability of children.  The security of children during armed conflict has even been recognised by the Security Council as being a matter of international peace and security (see for example: SCR 1261, SCR 1314, SCR 1379).  Given the importance of protecting children and other vulnerable groups during armed conflict, does the concept of the Responsibility to Protect (‘R2P’) clarify the principles governing international responses to atrocity crimes?

At its heart, R2P is about duty – the primary duty of states to protect their populations from atrocity crimes and the secondary duty of the international community to ‘use appropriate diplomatic, humanitarian and other peaceful means’ to help protect against atrocity crimes and to take action through the Security Council when the state ‘manifestly fails’ to protect its population.  Even if it is R2P-lite (.pdf), this formulation of R2P and the duty of the international community which flows from it, in practice appears to allow considerable scope for the international community to take significant steps to intercede in armed conflicts where atrocity crimes are being committed, provided those measures do not cross the threshold of use of force in the absence of a Security Council resolution.  In order to distinguish these less-than-force measures from the baggage that comes with the term “intervention,” in my view they are better described as “intercession.”  Although in its early stages, my research indicates that these less-than-force measures (intercession) include unilateral sanctions, trade restrictions, diplomacy, withdrawal of aid funding and even non-lethal support to rebel groups (.pdf).  These are measures taken by states, without Security Council authorisation, which are less than the use of force, but which appear to be the site of the most significant opportunities for change that protects the most vulnerable, including children.

The increasing use of intercession by the international community in response to modern armed conflicts reveals an emerging norm in international law which recognises that there are international obligations to protect human rights, particularly the human rights of the most vulnerable such as children, and humanitarian ideals that are more important than, and overtake, sovereignty when atrocity crimes are being committed.  (more…)