[Jocelyn McCalla was the Executive Director of the National Coalition for Haitian Rights from 1998 to 2006.]

For the purposes of this discussion I will restrict my remarks to the impact of Sale on Haitian immigration and advocacy; I will not be so bold as to extend them to the impact overall on all immigrants, refugees and asylum-seekers that the United States is dealing with. Secondly, I believe it is important to explore advocacy before Sale as well after Sale. One can’t comprehend what happened after 1993 without an examination of the 20 years of advocacy on behalf of Haitians that  preceded the Supreme Court decision, as well as the changing relationship between Haiti and the United States.

Haitian asylum-seekers began fleeing to the United States by sailboats in 1972. From  the very beginning, advocacy on behalf of Haitians in the United States has never been uniquely about rights to due process or access to the asylum system. It always had a dual edge: promoting rights on the domestic front were associated with the promotion of democratic rights in Haiti. Advocates had urged the United States to disassociate itself from the brutal Duvalier dictatorship. They held that it was that regime which caused Haitians to flee: end your support of the regime, side with democracy and refugee flow would dry up… They looked  to the Courts for relief and to the Court of public opinion for support.

The United States tried all sorts of forceful measures to stem Haitian refugee flow but couldn’t. Finally President Ronald Reagan issued the interdiction order authorizing interception at sea and forcible return. Additionally should the asylum-seekers find themselves close to US shores they needed to be within 3 nautical miles of the shore to access legal help. Interdiction worked: of the 23,000 Haitian refugees intercepted at sea, only six were deemed to have prima facie valid asylum claims. All others were returned.

Things came to a head in 1991 following the violent ouster of democratically-elected President Jean-Bertrand Aristide when a federal court judge in Miami triggered a scramble at the highest level of  the US government when it enjoined the US from returning refugees intercepted at sea. The high seas drama – interdiction, Guantanamo, injunction against interdiction — that followed Aristide’s ouster generated sizeable support for Haitian refugees and the Aristide administration.

Campaigning in 1992, Bill Clinton promised to overturn the interdiction policy. Clinton changed his mind shortly before being sworn in. He offered a quid pro quo: more energetic support for Aristide’s return and democracy in Haiti in exchange for keeping the status quo on interdiction, asylum screening and quarantining HIV positive Haitian asylum seekers at GTMO. (more…)

[Ira Kurzban was counsel for the government of Haiti between 1991 until 2004 and was counsel of record in HRC v. Baker and over 10 other class action lawsuits involving Haitian refugees in the United States. Mr. Kurzban continues to serve  as personal counsel for Jean Bertrand Aristide, Haiti’s first democratically elected president.]

On September 30, 1991, the Haitian military, with the help of the Haitian elite, overthrew the democratically elected government of Jean Bertrand Aristide. President Aristide had won Haiti’s first free, fair and open election by 67% of the vote in a field of 17 candidates.

The violence of September 30, 1991 and its aftermath are well known. Estimates range from 1,000 to 3,000 military and paramilitary executions within the first 48 hours of the coup, many in front of the National Palace where supporters of Haitian democracy went to protest the overthrow of their President. Beyond the immediate executions were tens of thousands more over the next several years by DIA/CIA sponsored paramilitary organizations such as the Front for the Advancement and Progress of Haiti (FRAPH). Many of this is documented in trials such as the Raboteau trial where human rights violators were tried in a court of law and brought to justice for the first time in Haitian history.

A second coup, again with the funds and organization of the elite, but also the  support of the United States, French, and Canadian governments, occurred on February 29, 2004 during the second democratically-elected term of Jean Bertrand Aristide.  By the second coup, the Haitian army had been demobilized. One might call this coup, documented in detail in such works as Hallward’s Damming the Flood: Haiti, Aristide and the Politics of Containment  and Sprague, Paramilitarism and the Assault of Democracy in Haiti, as a slow-motion performance where a military wing went from town to town executing police and supporters of democracy while the elites simultaneously financially supported such executions while proclaimed their rights were being violated. The U.S., French and Canadian government contributed at a minimum to the finance and support of  gross disinformation campaigns, anti-democratic organizations, paramilitary groups and covert operations in the second coup.

The decision in Sale v. Haitian Centers Council, a travesty of international and domestic law, and basic human decency, had a significant effect on how Haitian refugees fleeing these two coups were treated. Pre-Sale the U.S. government’s actions were hesitant, unsure, chaotic and erratic. Post-Sale they were ruthless.

In October, 1991, almost  immediately after the coup, Haitians who supported democracy and supported President Aristide began fleeing Haiti in fear of their lives. By mid-October, Haitians were aboard vessels trying to get out of Haiti. By December there were more than 5,000 Haitians who had fled Haiti. At one point in the crisis there were more than 10,000 Haitians in the Guantanamo camps.

The initial response of the U.S post-September 30, 1991 was to decline to return Haitians to the imminent danger they faced. They were taken aboard Coast Guard cutters. The U.S. held them in the cutters and sought to obtain clearance for their trip to the U.S. or their return home.  The U.S. had signed a 1981 interdiction treaty with Haiti that required our country to at least provide  facial compliance with international law by granting “ asylum interviews” aboard Coast Guard cutters prior to forcibly returning refugees to Haiti. The numbers of Haitians on the cutters began to build up. Given the public executions in front of Haiti’s national palace the foreign policy establishment in the U.S. was too embarrassed pre –Sale to immediately return Haitians fleeing the country. By November hundreds of Haitians were simply sitting on the decks of cutters in the Caribbean.  The numbers became too large and by November 18, 1991 the Bush Administration directed the Coast Guard to take the refugees back to Haiti and ignore our 1981 Accords.

The next day the Haitian Refugee Center filed an action for declaratory and injunctive relief in the United States District Court in the Southern District of Florida. They also filed an application for a  temporary restraining order that would prevent the Coast Guard and the U.S. government from removing Haitians on the high seas from being returned. (more…)

[Tendayi Achiume is the Binder Teaching Fellow at University of California, Los Angeles (UCLA) School of Law. She received her JD from Yale Law School. Jeffrey Kahn is an Academy Postdoctoral Scholar at the Harvard Academy for International and Area Studies. He received his JD from Yale Law School and his PhD in anthropology from the University of Chicago. Itamar Mann is the National Security Law Fellow at Georgetown Law Center. He received his LLM from and is a JSD candidate at Yale Law School.]

This past week, a group of scholars, practitioners, and policymakers gathered at Yale Law School to discuss the rise of maritime migrant interdiction as a border-policing paradigm of global significance. Thanks to the generosity of the editors at Opinio Juris, this online symposium will make those discussions available to a wider audience. As the organizers of the conference, it is our great honor to introduce this exciting topic and the insightful posts that follow.

Maritime migrant interdiction is now a key border enforcement tool for the United States, the European Union, and Australia. The U.S. developed the model in the early 1980s as a means of preventing Haitian asylum seekers from reaching U.S. Shores. In 1992, the administration of George H. W. Bush abandoned the past practice of screening Haitians for refugee characteristics and instituted a direct return policy that authorized the repatriation of all interdicted Haitians regardless of whether they would be persecuted in Haiti. In 1993, the United States Supreme Court gave its imprimatur to this new framework with its Sale v. Haitian Centers Council, Inc. decision, holding that the United States was not bound by the U.N. Refugee Convention when processing Haitians interdicted at sea. As scholars have noted, Sale later became a key point of reference for other countries seeking to legitimize their own adoption of U.S.-style maritime migrant interdiction programs.

The history of interdiction since Sale provides a fascinating and troubling example of policy diffusion on a vast scale. The statistics on migration by sea make clear why the highly flexible interdiction framework adopted by the United States would become so appealing to the European Union and Australia in later decades. Unauthorized border crossing into the European Union has reached its highest levels since record-keeping began in 2008, and the majority of these migrants arrive by sea. Approximately 17,000 unauthorized boat migrants arrived in Australia in 2012, a staggering increase from previous years.

Migrant interdiction and migration by sea also triggers its own escalating dynamic. The highly visible tragedies that often result from these dangerous voyages and the bad publicity they spawn spur more intensive policing operations, which, paradoxically, lead to greater risk-taking by those migrants attempting to penetrate intensified maritime border defenses. We were recently reminded of this sad fact when more than three hundred African migrants drowned off of the Italian island of Lampedusa in October and more than thirty Haitian migrants died off of the Bahamas in November of this past year. These terrible events point to the complicated and deadly reality that lies at the intersection of both maritime border policing and maritime border crossing.

Each of us has approached issues of international refugee law, the rise of migrant interdiction, and the implications of the transnational dialectics it creates in our own academic work. Drawing inspiration from our research and advocacy, we set out to structure the conference so that it would provide an opportunity to delve into questions of eroding national sovereignty, debates over the balance between national security concerns and commitments to human rights norms, and struggles over the shifting geographies of judicial constraint and executive power. We hoped to highlight the deeper histories in which migrant interdiction is rooted, the broader international law landscape in which it first emerged and in which it is currently embedded, the ongoing transnational litigation and advocacy approaches various actors have developed to address it, and the vexing questions it raises with regard to issues of human rights and national security. As should become clear from the posts that will follow this introduction, we selected panel themes and chose panelists to facilitate the exploration of these topics.

We are privileged to have posts from many of our distinguished panelists and from our two esteemed keynote speakers, Alexander Aleinikoff, U.N. Deputy High Commissioner for Refugees, and Harold Koh, the Sterling Professor of International Law at Yale Law School. As you will note from each panelist’s bio, some have been grappling with issues of migrant interdiction since the 1980s while others are newer to the scene, wrestling with the more recent forms of maritime border-policing that have developed in Europe and Australia over the past decade. Each brings a unique perspective to the table, and we hope that you find their contributions as illuminating and provocative as we have.

[Robert McCorquodale is the Director of the British Institute of International and Comparative Law and Professor of International Law and Human Rights at the University of Nottingham.]

Our responses to what has been happening in Ukraine and the reactions of various governments, may depend on how we view the politics of the region and the moral claims being made. The rule of law is also of direct relevance, as ‘[we] believe that preserving law and order in today’s complex and turbulent world is one of the few ways to keep international relations from sliding into chaos. The law is still the law, and we must follow it whether we like it or not.’ These words are those of President Putin, written a few months ago in order to prevent the US, UK and other governments from intervening in Syria. International law is crucial to the situation in the Ukraine. It is of particular relevance to the right of self-determination of the people of Crimea and whether Russia can lawfully intervene on the territory of Ukraine.

The right of self-determination, as enshrined in the UN Charter and international human rights treaties, enables a people to determine for themselves their political, economic, social and cultural status. It has been applied in recent years in the former Yugoslavia, East Timor and South Sudan.  It is certainly arguable that the people in the Crimea have a distinct identity and territory, created over centuries and fostered by decisions of the USSR, Russia and Ukraine. This includes its status as an autonomous region within the state of Ukraine and by specific agreements about it between Russia and Ukraine.  It is not unlawful for it to have a referendum and declare itself independent (or that it wishes to merge with Russia), as this was allowed by the International Court of Justice in its (poorly reasoned) advisory opinion on the declaration of independence by Kosovo.

However, such a declaration of independence or merging is not effective in international law by itself. There are two key factors that are relevant: the actions of the state within whose borders the people live; and the responses of the international community. (more…)

[Gregory H. Fox is the director of the Program for International Legal Studies and Professor of Law at Wayne State University.]

In the early days of the Ukrainian crisis, commentators discussed a number of possible justifications for Russian intervention in the Crimea.  On Saturday, March 3, however, the Russian ambassador the UN announced the existence of a letter from Viktor Yanukovych to the President of Russia, dated March 1, requesting Russian intervention.  In the letter Yanokovych purportedly described conditions of chaos in Ukraine and called on “President Vladimir Vladimirovich Putin of Russia to use the armed forces of the Russian Federation to establish legitimacy, peace, law and order and stability in defense of the people of Ukraine.”  I say “purportedly” because Russia did not circulate the Yanukovych letter as an official UN document and as far as I can tell it has not been otherwise released to the public.   By March 1, of course, Yanukovych had left Kiev and been replaced as President by an overwhelming vote of the Ukrainian Parliament.  In the view of the new government, Yanukovych retained no authority after his departure and his letter, if genuine, should “not be regarded as an official request of Ukraine.”  Also on March 1, the Prime Minister of Crimea, who had assumed office only the previous Thursday, appealed to Russia “for assistance in guaranteeing peace and calmness on the territory of the autonomous republic of Crimea.”

In this post I will evaluate Russia’s claim that these invitations legitimated its intervention.  Drawing on material in a forthcoming book chapter I will conclude that the Russian claim is quite weak.

(more…)

[John H. Knox is the UN Independent Expert on Human Rights and the Environment, and the Henry C. Lauerman Professor of International Law at Wake Forest University School of Law.]

In 2012, the Human Rights Council appointed me to be its first Independent Expert on human rights and the environment, and asked me to clarify the human rights obligations relating to the enjoyment of a healthy environment.  To that end, I oversaw an extensive research project that surveyed a very wide range of sources, including the major human rights treaties (as interpreted by their treaty bodies), regional human rights tribunals, UN Special Rapporteurs, and international environmental instruments.

Today, I present the results of this mapping project to the Council.  The sources surveyed have reached remarkably coherent conclusions about the application of human rights norms to environmental issues, making it easy to summarize the principal conclusions.

First, there is no longer any serious question that environmental harm can interfere with the enjoyment of human rights:  not only the right to a healthy environment, which is widely but not universally accepted, but also human rights that are universally accepted, such as rights to life, health, food,  and water.

Second, the sources agree that States must adopt certain procedural safeguards in order to protect against environmental harm to these rights.  In particular, they must assess environmental impacts on human rights and make environmental information public, facilitate participation in environmental decision-making, and provide access to effective remedies.  The obligation to facilitate public participation includes duties to safeguard environmental defenders’ rights to freedom of expression and association against threats, harassment, and violence.

Third, States must adopt legal and institutional frameworks that provide substantive protections as well as procedural ones.  Although States have discretion to strike a balance between environmental protection and other legitimate societal interests, the balance cannot be unreasonable or result in unjustified, foreseeable infringements of human rights.  And States must protect against harm caused by corporations and other non-State actors.

Finally, States have a cross-cutting requirement of non-discrimination in the application of environmental laws, and additional obligations to members of groups particularly vulnerable to environmental harm, including in particular women, children, and indigenous peoples.

The report concludes:

Human rights obligations relating to the environment are continuing to be developed in many forums, and the Independent Expert urges States to support their further development and clarification.  But the obligations are already clear enough to provide guidance to States and all those interested in promoting and protecting human rights and environmental protection.  His main recommendation, therefore, is that States and others take these human rights obligations into account in the development and implementation of their environmental policies.

I now turn to identifying and compiling good practices in the use of human rights obligations for environmental protection.  I would be interested to hear any thoughts or questions you might have on that, or on the conclusions of the mapping report!

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

Africa

• The UN reports that Muslims are being “cleansed” from the west of the Central African Republic and thousands of civilians risk being killed ”right before our eyes.”
• Germain Katanga was convicted by the ICC of being an accessory to crimes including murder and pillage during an attack on a village in a diamond-rich region of Congo in 2003, in which about 200 civilians were killed (more from Kevin here).
• Libya threatened to bomb a North Korean-flagged tanker if it tried to ship oil from a rebel-controlled port, in a major escalation of a standoff over the country’s petroleum wealth.
• A Red Cross worker was killed in the north of the Central African Republic, amid escalating religious violence that peacekeepers have been powerless to stop.
• Escalating diplomatic tensions are evident as South Africa has expelled three Rwandan diplomats it linked to an attack on an exiled Rwandan general’s Johannesburg home, and Rwanda has retaliated by ordering out six South African diplomats.

Asia

• The world must increase its food production by 60 percent by mid-century or risk serious food shortages that could bring social unrest and civil wars, the U.N. Food and Agriculture Organization (FAO) said.
• As Japan and the US start talks on how to respond to armed incidents that fall short of a full-scale attack on Japan, officials in Tokyo worry that their ally is reluctant to send China a strong message of deterrence.

Americas

• The US recently sent a small number of special forces soldiers to Jordan to train with counterparts from Iraq and Jordan, a new step in the Obama administration’s effort to help Baghdad stamp out a resurgent al Qaeda threat.
• Panama’s President Ricardo Martinelli has called on Venezuela not to use its decision to break ties with his country as an excuse not to pay back a debt that tops $1bn.

Middle East

• Al Qaeda militants shot dead a man in southeastern Yemen for allegedly giving the US information used to carry out drone strikes against militants, witnesses and the SITE monitoring service said.
• At least 42 African migrants drowned in the Arabian Sea off the southern coast of Yemen.
• Newborns freezing to death in hospital incubators, doctors cutting off limbs to stop patients from bleeding to death, surging cases of polio: a new report published by Save the Children paints a dire picture of Syria’s collapsing healthcare system.
• A group of Israeli teenagers have told Prime Minister Benjamin Netanyahu that they will refuse to serve in the military because of its role in the occupation of Palestinian land.

Europe

• The Ukraine city of Sevastopol has declared itself a subject of the Russian Federation. For more on the Ukraine crisis, see our insta-symposium here.
• Russia has made what may be a move towards taking part in talks over the Ukraine crisis, but is standing firm in its insistence that Crimea has a right to break away from Kiev’s rule.
• Germany’s Angela Merkel delivered a rebuke to President Vladimir Putin, telling him that a planned Moscow-backed referendum on whether Crimea should join Russia was illegal and violated Ukraine’s constitution.
• The EU has reiterated its earlier pledge to ink a trade deal with Kiev, as international tensions over Ukraine’s future escalated further over the weekend following the incursion of Russian military forces into the Crimean peninsula.
• Over a dozen EU ministers have joined together to call for a rapid agreement on the trading bloc’s 2030 climate and energy goals, either at a leaders’ summit later this month or in June.

[Tali Kolesov Har-Oz and Ori Pomson are teaching assistants and LL.B. candidates at the Hebrew University of Jerusalem Law Faculty]

Following the ousting of Ukrainian President Viktor Yanukovich by protesters and parliament, Russian military forces took over key positions in the autonomous region of Crimea (timeline available here). One of Russia’s justifications for militarily intervening in Ukraine has been the reported request by the ousted Yanukovich for Russia’s assistance (see for example here and here). Though the respect for territorial integrity is a fundamental principle of international law and a military intervention would thus clearly violate this rule (UN Charter, art. 2; UN Doc. A/RES/25/2625), Russia’s position is that it has not violated Ukraine’s territorial integrity in light of – inter alia – Yanukovich’s alleged consent. This raises the question, which this piece will address, of how to determine which government or leader – if any – may authorize a military intervention in a State.

It is generally recognized that a State may intervene in another State if the latter’s government provided prior consent (see DRC v Uganda, ¶¶46-47; ARSIWA Commentaries, 74). However, already in the early post-Charter era it became very apparent that the pretext of consent could be subject to serious abuse (Wright, 274-76). Accordingly, there must be “thorough scrutiny” in assessing whether actual and legal consent has been given (Dinstein, §321).

Only a legitimate government may bind a State in international law (D’Aspremont, 878-879). Thus, in order to determine who is entitled to request such a military intervention, we must first identify the legitimate government of that State.

While there are no objective criteria to determine governments’ legitimacy (D’Aspremont, at 878-879), governmental status in the legal literature is regularly equated with territorial effectiveness (Oppenheim’s International Law 150-54 (9th ed. 1992)). However, several authors have argued that governments also derive their legitimacy from the extent to which they come to power through participatory political mechanisms (Franck, 47), or through the internal processes in the State (Roth, 31). Thus, it is quite clear that where a government is effectively replaced by another through legal means, the new government – having complied with both the territorial effectiveness test and the political participation test – may bind a State in international law.

The interesting legal questions arise where an illegal change of power leads to the existence, simultaneously, of separate de facto and de jure governments. In other words, which would be considered the legitimate government where – as claimed by Russian Ambassador to the UN Vitaly Churkin – an insurgent faction has successfully established itself as the de facto government by overthrowing an existing constitutional structure?

(more…)

Can you identify the man second from the right, wearing the bright blue pants and green shirt?

Answer after the jump…

[Sina Etezazian is a PhD candidate at Monash Law School, researching the prerequisites for the exercise of self-defense in international law.]

Although Russia has now distanced itself from the doctrine of the forcible protection of nationals abroad, and instead has opted to rely on “intervention by invitation” as the main basis of its deployment of force in Crimea, the rescue of nationals at risk overseas was its original premise for military action against Ukraine. It is therefore worth clarifying whether Russia was legally permitted to deploy force in Crimea to protect Russian ethnics or Russian citizens whose lives, Russia argued, were threatened by Ukrainian forces.

Even if the contemporary international law governing the defensive actions of states extends to the protection of nationals abroad, Russia’s deployment of force in Crimea appears to fall short of meeting the conditions of permissible self-defense. However, while the Russian intervention has constituted an act of aggression, not self-defense, I can see no possible legal justification under the present circumstances for resort to (individual or collective) self-defense against Russia.

An examination of state practice since 1945 reveals that only a limited number of states – such as Israel, Russia, the UK and the US – have invoked self-defense to use force with the alleged aim of protecting their nationals threatened extraterritorially. Furthermore, the rescue of citizens abroad often seems to be a manifestation of aggressive political ambitions rather than a genuine exercise of the right of self-defense. The United States, for example, in its interventions in the Dominican Republic (1965), Grenada (1983) and Panama (1989), used the justification that it had acted in self-defense to protect its citizens allegedly at risk in those states. However, US actions in all the above instances received harsh criticism from the community of states, partly because the actions were disproportionate self-defense (The Yearbook of the United Nations (1965) 142; UN SCOR, 2491st mtg, UN Docs S/PV. 2491(27 October 1983) 5, paragraphs 38-9; Louis Henkin, “The Invasion of Panama Under International Law: A Gross Violation” (1991) 29 Columbia Journal of Transnational Law 293, 306, 308-9; Judith Gardam, Necessity, Proportionality and the Use of Force by States, 166-7), seeking to overthrow the governments of the states in which the US had intervened militarily (Christine Gray, International Law on the Use of Force (3^rd ed, 2008) 88-92).

However, reacting to US interventions, states neither opposed nor supported the use of force for the protection of nationals abroad. Similarly, when Russia invoked Article 51 of the UN Charter to rescue Russian nationals allegedly threatened by Georgian forces in 2008, rather than challenge the doctrine in question, Western states disputed Russia’s motives behind its intervention in Georgia (Christine Gray, “The Use of Force and the International Legal Order” in: Malcom D. Evans (ed), International Law, 615, 627), which was far from a proportionate use of force in terms of damage and loss of life inflicted.

The better view, thus, would seem to be that expressed by Tom Ruys in 2008 (page 35):

In conclusion, we have seen that, de lege lata, the long-standing controversy over the legality of forcible protection of nationals remains unresolved. The new element in state practice, namely the increased political tolerance vis-à-vis limited evacuation operations, is arguably counterbalanced by the negative opinio iuris reflected in the UNGA debates on diplomatic protection. Ergo, in the final analysis, United Nations practice is and remains inconclusive, implying that it is virtually impossible to deduce from customary practice to what extent attacks or possible attacks against nationals abroad may trigger the right to self-defence.

Hence, the legal basis for the coercive protection of nationals abroad in lawful self-defense appears to remain largely unclear. At best, the doctrine of protection of nationals abroad is very controversial.

However, even if one assumes that the rescue of nationals at risk overseas falls within the scope of valid self-defense, it is very unlikely that Russia’s current deployment of force in Crimea falls within the limits of Article 51, as it may not satisfy the prerequisites of necessity and proportionality.

First, the “last-resort” criterion inherent in the principle of necessity dictates that self-defense is available to the victim state only when methods not involving force appear impracticable to settle the conflict. This view finds support in customary international law and in the jurisprudence of the International Law Commission (ILC) (para. 120):

The reason for stressing that action taken in self-defence must be necessary is that the State attacked (or threatened with imminent attack, if one admits preventive self-defence) must not, in the particular circumstances, have had any means of halting the attack other than recourse to armed force. In other words, had it been able to achieve the same result by measures not involving the use of armed force, it would have no justification for adopting conduct which contravened the general prohibition against the use of armed force. The point is self-evident and is generally recognized; hence it requires no further discussion.

In 2005, the Chatham House Principles on the Use of Force in Self-Defence, representing the work of a number of prominent commentators in the field, confirmed the ILC’s approach to the “last-resort” requirement in the following terms (pages 966-7):

Force may be used in self-defence only when this is necessary to bring an attack to an end, or to avert an imminent attack. There must be no practical alternative to the proposed use of force that is likely to be effective in ending or averting the attack.

In fact, when Russia chose to invoke the so-called right of the forcible protection of nationals abroad, diplomacy appeared practicable and effective in resolving the crisis; in other words, the “last resort” had not yet been reached.

Moreover, the force used in self-defense must satisfy the criterion of immediacy: unless there is an attack that can be proved imminent, the victim state may not be justified in resorting to self-defense. Even supposing that the use of force against nationals residing outside the victim state may be equated with an armed attack, there is no evidence that the lives of Russians in Crimea or other parts of Ukraine have been threatened with impending military force. It is therefore difficult to comprehend how Russia can validly engage in self-defense against Ukraine. It goes without saying that a response that fails to meet the demands of necessity is extremely unlikely to be considered proportionate defensive action.

The final point to consider is whether, in the given situation, Ukraine would have the right to act in individual or collective self-defense. The answer is no – despite the conclusion made by the Ukrainian Association of International Law that Russia’ military action in Crimea “provides legal grounds” for Ukraine exercising its right of individual or collective self-defense.

True, states’ reactions to the occupations of South Korea in 1950, the Falkland Islands in 1982 and Kuwait in 1990 leave no doubt that the commencement of occupation clearly amounts to the commencement of an armed attack. Furthermore, the 1974 Definition of Aggression and the Amendments to the ICC Statute have listed “the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation…resulting from such invasion or attack” as an act of “aggression”. Thus there is little doubt that Russia has committed “aggression“. All this might suggest that Ukraine has an entitlement to self-defense, as embedded in Article 51, and the customary international law accompanying it.

However, at least in these circumstances, Ukraine’s possible use of force against Russia runs into the same obstacle with respect to the last-resort criterion as the Russian deployment of force in Crimea: given that “Russian troops have not so far used lethal force“, there still appear to be some prospects for the peaceful settlement of the conflict, which are likely to be practicable in dissuading Russia from continuing with its act of aggression. The fact that, on 7 March 2014, President Barack Obama had “a lengthy telephone talk” with his Russian counterpart, President Vladimir Putin, urging him to “seek a diplomatic solution to the crisis in Ukraine“, clearly illustrates this point.

Moreover, similar instances from the practice of states tend to support the proposition that, in cases akin to the occupation of Crimea, states have appeared more willing to pursue non-coercive measures in the first place. For example, in 1982, when the Falkland Islands, which belonged to the UK, were occupied by Argentine forces, the UK did not immediately decide to respond under the rubric of self-defense. Rather, British officials found force to be “necessary” only when it was made clear that peaceful means had been impracticable to resolve the problem–  that is, when Argentina refused to abide by the relevant resolution of the UN Security Council demanding Argentina’s withdrawal from the Falkland Islands. Likewise, unless measures other than force are likely to be impracticable in rectifying the wrong created by Russian forces – that is, the occupation of Crimea – Ukraine (and its allies) may not lawfully resort to forceful measures against Russia within the confines of Article 51.

• Law and Boundaries is an interdisciplinary yearly conference that aims to discuss and propose new perspectives on the challenges the legal discipline is facing regarding its object, its function, its theoretical foundations and its practical outcomes. The organizers are calling scholars from all disciplines to submit their abstracts (250-300 words) before March 14th, 2014. Abstracts are accepted in English and in French. Please note however that presentations should be done in English, and that working papers should preferably be written in English. More information is here.

• The Academy on Human Rights and Humanitarian Law is callling for applications for the 15^th annual Program of Advanced Studies on Human Rights and Humanitarian Law which runs from May 27th to June 13th, 2014, in Washington DC. The program offers 19 courses taught by more than 40 prominent scholars in the field of human rights, in both English and Spanish. The Academy on Human Rights and Humanitarian Law provides through this Program the unique opportunity to learn and interact with judges of the International Criminal Court (ICC), the International Court of Justice (ICJ), Special Rapporteurs of United Nations, members of the Inter-American Commission and Court on Human Rights, recognized members of NGOs and professors from all over the world. The Diploma is offered to a select group of 35 law professionals who fulfill the admission requirements. Access more information here.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.