Recent Posts

Is Violating “Serious Obligations” of the INF Treaty the same as its “Material Breach”?

by Duncan Hollis

A few hours ago, the NY Times broke a story that the United States views Russian tests of a ground-launched missile as violating the 1987 INF treaty, formally (and lengthily) titled, “The Treaty Between The United States Of America And The Union Of Soviet Socialist Republics On The Elimination Of Their Intermediate-Range And Shorter-Range Missiles”.  According to the story, the State Department will publicly issue a report that says, among other things:

The United States has determined that the Russian Federation is in violation of its obligations under the I.N.F. treaty not to possess, produce or flight test a ground launched cruise missile (GLCM) with a range capability of 500 kilometers to 5,500 kilometers or to possess or produce launchers of such missiles,”

In addition, President Obama has notified Russian President Putin of the U.S. charges in a letter delivered today.

The U.S. move adds a new brick to the wall of tensions building in the U.S.-Russian relationship (others include Crimea, Russian support for Eastern Ukrainian separatists, the MH17 tragedy, not to mention Edward Snowden’s continuing presence in Moscow).  I assume the timing of the U.S. accusations is no accident.  Moreover, I find it interesting that in so many of these recent crises with Russia, the United States has consistently relied on law and legal argumentation to push against Russia’s actions (or inaction).  This case may be the most extreme example of such an approach since the issue here is entirely one of international law and treaty interpretation.  As such, it’s very much in the wheelhouse of Opinio Juris and its readers. I thought I’d start the conversation with a few preliminary thoughts (emphasis on the “preliminary” since we don’t have too many details to go on as yet).

For starters, the precise language used to describe Russia’s tests — a violation of its obligations under the I.N.F. Treaty” — appears quite significant (especially where it comes after reportedly extensive deliberation). Certainly, the concept of a violation is easy to grasp and has important political implications. For treaty lawyers, however, the term “violation” is not the language we’d expect to see where there’s non-compliance with a treaty’s terms. The Vienna Convention on the Law of Treaties (VCLT), which sets the customary international law rules in these cases, describes violations in terms of a treaty’s “breach”  More specifically, it articulates a set of remedies where breaches are “material” (see VCLT Article 60 here).  In this case, however, that key adjective — “material” — is nowhere to be found, suggesting the United States is not looking to invoke this VCLT provision.  But even if it were, in a move that has stumped generations of international law students, the VCLT’s remedies for a treaty’s material breach are quite limited — they entitle the non-breaching party to suspend or terminate its own obligations under the treaty in whole or in part (the VCLT also adds some procedural hurdles but these are largely ignored in State practice). Of course, there’s no evidence suggesting that the U.S. has any intention of suspending or terminating the INF Treaty; on the contrary, U.S. interests seem to lie squarely on keeping Russia obligated by the treaty as long as possible and forestalling any Russian move to withdraw from the INF Treaty (which Article XV allows it to do).  Simply put, the United States does not appear to consider Russia’s behavior as a material breach of the INF treaty nor want the remedies that label conveys; such a path would actually undercut the stability of the INF treaty’s continued performance for which the United States is pushing.

Second, just because the VCLT remedies are undesirable does not foreclose the United States from all legal leverage in this case. By using the term “violation . . . of obligations” the United States may be invoking a different set of international law rules … those of State responsibility.  Although the United States has been ambivalent to the UN’s Draft Articles on State Responsibility, those articles elaborate a detailed sets of obligations, rights and remedies where a State commits an internationally wrongful act (defined to include a breach of treaty obligations).  The offending State is required to cease (and not repeat) non-compliant behavior and the injured State(s) may engage in “counter-measures” to induce such a return to compliance. These counter-measures may include behavior previously categorized as a retorsion (lawful behavior such as canceling foreign assistance done in response to a prior breach) and a reprisal (behavior that would be unlawful but for the existence of the prior breach).  At present, the types of U.S. responses on offer described in Michael Gordon’s story are likely retorsions, but I assume other measures, including reprisals, could follow if Russia does not respond appropriately.

Taken together, these moves lend support to Bruno Simma and Christian Tams argument in my book that the law of state responsibility has proven more attractive to States than the VCLT’s remedies for treaty breach. That said, I do not mean to suggest that the VCLT is entirely irrelevant to this case.  On the contrary, its provisions on interpretation (Articles 31-33) are likely central to the U.S. claim of a Russian violation.  What’s more, I’d expect Russia to offer its own interpretation to the contrary employing the same interpretative framework (not to mention counter-claims of U.S. violations as described in tonight’s story).

All in all, there’s quite a bit here that should be of interest not just to those who care about arms control and nonproliferation, but international law and international relations more generally.  I’d be interested to hear what others think the U.S. claim suggests and how you see things playing out? Comments welcome.

What is The Common Law of War?  

by Jens David Ohlin

Since the recent al Bahlul en banc decision before the D.C. Circuit, I have been thinking a lot about the Common Law of War. As others have already analyzed in detail (Steve, Peter, JonathanMarty & Steve), the D.C. Circuit upheld Bahlul’s conviction for conspiracy but threw out his conviction for material support for terrorism and solicitation. Material support and solicitation are unavailable for pre-2006 conduct because they are neither international crimes nor historically charged before military commissions. Conspiracy, on the other hand, is a different story. While it seems pretty clear that conspiracy is not a stand-alone offense under international law, the government has relied on the argument that conspiracy is historically chargeable before a military commission as part of the “common law of war.”

The exact status of the common law of war theory remains unknown because the court’s majority applied “plain error” review and not de novo review on the merits. Some judges concluded that Bahlul waived his objections by not raising them at trial (when Bahlul was declining legal assistance). For his part, Judge Kavanaugh appeared sympathetic to the common law of war argument, which arguably departs from his previous notes of skepticism regarding the theory in Hamdan II.

Since the common law of war idea is still wide open, I’ve been trying to come to terms with it and articulate precisely why I’ve been uncomfortable with it in the past. Indeed, when I first heard the government’s assertion of this theory, I was deeply skeptical and found it almost outrageous. The law of war is international by definition—it is the same for everyone and that’s the whole point of it. The law of war is based on reciprocity and it makes no sense to think of it as a creature of domestic law.

That being said, I think the issue is more complicated than I initially assumed.  In particular, it is important to note that Lieber himself makes reference to the common law of war in article 13 of the Lieber Code. Also, Richard Baxter, in his famous article on spies and unprivileged belligerency, concludes that acts of belligerency by an unprivileged belligerent simply aren’t violations of international law at all – they are violations of domestic criminal law. That’s absolutely correct. The absence of the privilege means that the unprivileged belligerent cannot exempt himself from the demands of domestic law. That’s something far different from an international crime. Unfortunately, Baxter also says in the preceding sentence that the saboteurs in Ex Parte Quirin were “no doubt” triable under the statutes and “military common law of the captors” – though he never explains what he means by this. Presumably he felt that the saboteurs in Quirin were subject to military commission jurisdiction despite the fact that their crimes were domestic violations, though he never articulates his reasoning. Of course, I don’t want to parse Baxter’s article like it’s gospel; I find there’s too much of that already with people treating semi-authoritative Commentaries like treaties. But I still find it interesting that both Baxter and Lieber used the phrase or something close to it.

So why is it so difficult to understand the common law of war? Here are four possible reasons:

1. We no longer live a common law world. Well not exactly. The U.S. is still part of the common law, in the historical sense, but really the common law doesn’t play the role it once did. It has substantially evolved. Statutes and regulations play a much larger role now – and this applies in almost every field of law. This certainly applies in the criminal law, where even the idea of a common law crime sounds just bizarre to today’s students. It’s just so far removed from how the law operates today.

2. Although state courts in the U.S. continue to evolve the common law in each jurisdiction in subject areas that are not covered by a particular statute (say tort law), this endeavor is temporally removed from its historical roots in common law England. Although the law in each jurisdiction can all be traced back to a common source, the doctrines have been developed in unique and different ways in each court. The common law – as something truly common across jurisdictions – has receded into history.

3. The law of war in general, and the jurisdiction of military commissions in particular, were woefully under-theorized in previous generations. This was certainly true in the Civil War, when other than Ex Parte Milligan as an enduring constraint on military jurisdiction, there was insufficient attention paid to developing a deep theory of military jurisdiction. Famously, Ex Parte Quirin was a rush decision, arguably fast-tracked because the Supreme Court was concerned that the administration might execute the prisoners before a decision was reached – which would have dealt a near-fatal blow to the Supreme Court’s institutional legitimacy and its self-asserted purview, announced in Madison v. Marbury, to say what the law is. It is no surprise that we now look back on Quirin as “not this Court’s finest hour” (Hamdi v. Rumsfeld, Scalia J. dissenting). One way of putting the point is to follow Steve Vladeck and say that the Court has never fully rationalized why military commissions are exempt from the Article III requirement of trial before a regular court. Another way of putting the point is that during the Civil War the concept of military jurisdiction was under-theorized and we are only now playing catch-up.

4. There is something that unites our use of the terms “international law” today with how the term “common law” might have been used in previous generations. This might help explain why there is an international law of war today and a common law of war in the past.  Although they are different, what unites them is a shared participation in a larger legal culture. For international law, the larger legal culture is the international order, with its unique sources for lawmaking (treaties, custom, etc.) and international organizations. For the common law, the larger legal culture is the law that is “common” to many jurisdictions who are all participating in a common legal culture and apply its law together – the “common law.” Although the common law is not the same as international law, it is something larger than pure domestic law, and as such it could, in theory, and historically as well, fulfill some of the demands of reciprocity that the laws of war demand. The problem, of course, is that the common law doesn’t function that way in today’s world. The whole point of the law of war is that it has to be bigger than just domestic law. And maybe the common law in the past was just big enough to support the law of war in some limited sense. Whether that’s enough in today’s world, I really don’t know.

Emerging Voices: Sexual Violence As War Crime: Controversial Issues in the International Criminal Court

by Rosemary Grey

[Rosemary Grey is a PhD Candidate at the Faculty of Arts and Social Sciences, University of New South Wales.]

The case of The Prosecutor v Bosco Ntaganda, which is currently before the International Criminal Court (ICC), is the latest of several cases in the ICC and Special Court for Sierra Leone (SCSL) to address the issue of sexual violence against female child soldiers by members of their own group.

The accused, Ntaganda, is the alleged former commander of the Union des Patriotes Congolais-Forces Patriotiques pour la libération du Congo (UPC-FPLC), an armed group which in 2002 and 2003 was involved in the non-international armed conflict in the Democratic Republic of Congo (DRC).

On 9 June 2014, Pre-Trial Chamber II confirmed the charges against Ntaganda, including charges for the rape and sexual slavery of female child soldiers in the UPC–FPCL by their commanders and fellow soldiers, which the ICC Prosecutor characterized as war crimes under Article 8(2)(e)(vi) of the Rome Statute. This was the first time that Article 8(2)(e)(vi) had been used to prosecute sex crimes committed against child soldiers by members of the same armed group.

I recently discussed the Pre-Trial Chamber’s decision on Beyond The Hague; here I will focus on the parties’ interpretation of Article 8(2)(e)(vi), and highlight some important gender issues raised by this case.
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Yukos Shareholder Wins $50 Billion Arbitration Award Against Russia (Yes, that’s Billion With a “B”)

by Julian Ku

Some lawyers at Shearmen & Sterling are no doubt celebrating what may be the largest single arbitration award in history (text of award here). Their client, a shareholder of the expropriated Russian oil company Yukos, has won a $50 billion award against Russia in an investor-state arbitration (seated at the Permanent Court of Arbitration) under the Energy Charter Treaty.   Michael Goldhaber at the American Lawyer has the first and fullest coverage of this historic award.

There are lots of legal battles ahead. Enforcement is going to be challenging, as it always is against sovereign states. And the award has some very interesting observations on legal issues such as the “unclean hands” doctrine under international law.  But for now, this is quite a victory for the plaintiffs to savor and it is already taking a toll on Russia’s stock market.  (And it is a rough few months for the folks over at Cleary Gottlieb, who are also representing Argentina in its unsuccessful battle with its holdout bondholders).

Weekly News Wrap: Monday, July 28, 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

Oceania

UN/Other

Events & Announcements: July 27, 2014

by An Hertogen

Call for Papers

  • A conference on General International Law and International Economic Law: An (Un)Easy Relationship? will be held at the Lomonosov Moscow State University on April 17, 2015. The conference seeks to address the challenges created by application of the general international law to international economics context as well international economic law influence on evolution of general international law. Abstracts should be submitted by September 30, 2014. For further information please refer to the call for papers.

Events

  • On November 13-14, 2014, Ghent University (UGent) will be hosting an international two-day conference at the occasion  of the twentieth anniversary of the entry into force of the UN Convention on the Law of the Sea. The conference, organized in partnership with the Vrije Universiteit Brussel (VUB), Université catholique de Louvain-Mons (UCL-Mons) and the Université Libre de Bruxelles, will bring together expert scholars from within and without Europe, as well as practitioners and civil servants (e.g., ITLOS, International Seabed Authority, FAO). Four different panels will address the importance of UNCLOS for the maintenance of international peace and security; its importance for the global economy; for the protection of the marine environment, and; the Convention?s compulsory dispute settlement mechanism. Detailed information (including programme, venue and registration details) can be found on the conference website.
  • On September 19-20, The Surrey International Law Centre of the University of Surrey School of Law, with the support of the Institute of Advanced Studies, the McCoubrey Centre of the University of Hull and the British Institute of International and Comparative Law, will host a two-day workshop on the identification of core standards of procedural fairness before international courts and tribunals. The workshop employs a comparative approach whereby participants will analyse the procedures and practices of various international courts and tribunals. It aims to identify patterns of commonality and divergence and to develop a holistic understanding of the nature of procedural fairness and of the challenges to its realisation in the international judicial system. More information can be found 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 with a one-paragraph description of your announcement along with hyperlinks to more information.

Can Israel Cut Off Water and Power to Gaza?

by Kevin Jon Heller

That’s the question at the heart of a complicated debate between a variety of IHL scholars. The debate began with a legal opinion that Avi Bell submitted to the Knesset, in which he argued that nothing in international law prohibits Israel from cutting off the water and power it provides to Gaza. Although the opinion is dense — and has been updated in response to a document criticising an earlier published version — the bottom line is that Bell rejects the idea that Gaza is still occupied and believes it is thus impossible to find a positive obligation on Israel to continue to provide water and power (p. 5):

Some have argued that Israel is required to supply the Gaza Strip because Israel allegedly maintains control over Gaza. There are two versions of this claim: one version claims that Israel belligerently occupies the Gaza Strip; the other claims that Israel “controls” the Gaza Strip for purposes of human rights treaties or “post-occupation” duties even though it neither occupies nor exercises sovereignty over the Gaza Strip. When it controls territory through belligerent occupation, a state may have the duty supply certain goods to a civilian population if there is no other way to ensure access to the goods. Similarly, when it controls territory over which it has lawful sovereignty, a state may have the duty to supply certain goods when human rights treaties demand their provision to the civilian population. However, Israel does not control the Gaza Strip for purposes of the law of belligerent occupation or human rights  duties. Thus, Israel cannot be held to a duty to supply.

Bell’s legal opinion led a group of leading Israeli international-law scholars, including Eyal Benvenisti, Aeyal Gross (also at SOAS), David Kretzmer, and Yuval Shany, to submit a response to the Knesset. The essence of the response is that even if Israel is no longer occupying Gaza (on which the experts do not take an opinion), its ongoing control over basic features of Gazan life means that it is not free to completely ignore basic Palestinian humanitarian needs. Here is the key paragraph (pp. 10-11):

Israel and Gaza are not equal sovereign entities. Israel has controlled Gaza for decades, which resulted in significant dependence on Israeli infrastructure. Even after the disengagement, it still holds certain powers over the population in Gaza – including by its control over essential infrastructure. Since Israel does not allow, de facto, the development of independent infrastructure in Gaza, it cannot completely deny the responsibility to provide these essential supplies. Therefore, the interpretation suggested in the Opinion does not reflect a proper balance between the different objectives of IHL – even when considering the special challenges of asymmetric warfare. Chiefly, this is because it results in a legal “black hole” which deprives the civilian population of the effective protection of international law.

The debate between Bell and the other experts led Diakonia, a Swedish NGO, to commission a third report from Michael Bothe, one of the world’s foremost IHL experts. Bothe concludes, like the group of experts, that cutting off water and power to Gaza could (in certain circumstances) violate IHL. But he offers two independent bases for that conclusion…

Weekend Roundup: July 19-25, 2014

by An Hertogen

This week on Opinio Juris, our Emerging Voices symposium continued with a post by François Delerue on cyber operations and the prohibition on the threat of force, a comparison by Otto Spijkers of the Nuhanović and Mothers of Srebrenica cases, and Arpita Goswami’s analysis of the PCA’s recent Bay of Bengal Maritime Arbitration Case between India and Bangladesh.

We also welcomed Jens Ohlin for a guest posting stint. This week, Jens discussed competing theories of control in light of the downing of Malaysian Airlines Flight 17 and two decisions by the European Court of Human Rights on Poland’s involvement in CIA Black Sites on its territory.

Other guest posts were by Jonathan Hafetz who discussed the D.C. Circuit’s en banc ruling in Al Bahlul and by Charles Kels who followed up on our recent symposium self-defence during armed conflict.

Of our regular bloggers, Kevin explained why comments by Moshe Feiglin, the Deputy Speaker of the Knesset in Israel, can be seen as advocating crimes against humanity, but not genocide, against Palestinians. He also summarized the al-Senussi admissibility decision in two quotes. Kristen discussed interesting questions about the increasing “jurisdictional overlap” between individuals designated on targeted sanctions lists and international criminal courts.

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

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

Guest Post: Henderson & Cavanagh on Self-Defense During Armed Conflict

by Charles Kels

[Charles Kels is a major in the U.S. Air Force Reserve and an attorney for the Department of Homeland Security. He is writing in his personal capacity and his contribution is not meant to represent the views of the Department of Homeland Security, Air Force or Defense.]

Group Captain Henderson and Squadron Leader Cavanagh’s series of posts comparing and contrasting the Law of Armed Conflict (LOAC) and self-defense under criminal law (first, second, third, and fourth parts, along with the responses to posts one and four) provides an excellent analysis of how the legal basis for the application of force impacts the conditions upon its lawful use.

It is hard to argue with the central premise of the discussion: simply put, self-defense is not a part of LOAC. As the authors note, it is a term applicable to specific scenarios—namely, as a defense under criminal law and as a justification for the resort to force by states—and has different meanings depending upon the context in which it is invoked. This, by the way, is why I think the concept of “naked self-defense” as a standard for targeted killings is misplaced: it impermissibly (and I would argue counterproductively) conflates the jus ad bellum with the jus in bello.

The same can be said about the related issue of imminence. It has one meaning under a state’s right of self-defense, and another meaning under the law enforcement “force continuum,” but I’m unaware of any relevance to status-based targeting under LOAC. This is why some of the Obama administration’s pronouncements regarding imminent threats in the midst of what it deems an armed conflict have at times been so confusing.

The inapplicability of self-defense to LOAC is aptly encapsulated by Professor Ohlin vis-à-vis its interplay with the combatant’s privilege: the latter trumps the former, thereby rendering reliance upon it both unnecessary and self-defeating. Claiming self-defense in the face of criminal or disciplinary proceedings is essentially an excuse, but a privileged combatant who has exercised lethal force in compliance with LOAC has no need for vindication. In fact, he or she may be in line for a medal.

Yet, I am left wondering whether the discussion thus far elides a larger issue, rooted not in LOAC per se, but in the moral framework that undergirds it. That is, to what extent does the internal logic of LOAC as a coherent legal regime rest upon a generalized notion of individual self-defense? To the extent this insight has merit, I of course can’t take credit for it, although I have tried to flesh out its implications for remotely-waged warfare. It stems from Walzer’s famous formulation  (p. 34) of the “moral equality of soldiers,” and has found perhaps its most eloquent expression in the writing of legal philosopher Paul Kahn.

Essentially, Walzer’s notion is that “the capacity to injure” is what makes combatants legitimate targets in war. Kahn takes that argument to its logical conclusion, claiming that “the internal morality of warfare” is based upon the principle of “self-defense within conditions of reciprocal imposition of risk.” As such, what we lawyers call the combatant’s privilege is at heart “the soldier’s privilege of self-defense.”

Of course, given the irrelevance of imminence to LOAC, the risk posed by the identified enemy need not be immediate—hence another of Walzer’s well-known examples, the “naked soldier” (p. 138). Presumably, however, when that soldier gets dressed, he just may try and kill you (and may even be obligated to do so). This is what differentiates him from those who are hors de combat. So better to shoot him now, while you have the chance. What Michael Ignatieff calls the “tacit contract” of “kill or be killed” (p. 161) is still intact, even if attenuated.

One way to respond to Walzer, Kahn, and Ignatieff, et al. is simply to say that they’re wrong. Mutual risk has nothing to do with LOAC. To the extent that LOAC is concerned with promoting reciprocity, it’s a reciprocity of compliance, not physical peril. The jus in bello principle of proportionality, of course, imposes no requirement whatsoever with respect to parity in casualty rates among opposing forces.

Even so, it’s hard to deny that the reductive notion of combat as self-defense has intrinsic appeal, if nothing else than for providing a conceptually digestible précis of LOAC for those who actually have to implement its tenets in less than ideal circumstances. After all, the true value of LOAC is not just that it forbids some inhumane practices, but also that it legitimates certain acts of violence so that soldiers can do their jobs “without resorting to their own personal moral codes” or becoming paralyzed by principled indecision. This is especially so where, as in today’s conflicts, exhortations to abide by LOAC in order to incentivize compliance by the enemy are likely to fall on deaf ears (not to mention fail the straight-face test). At the end of the day, adhering to LOAC is about preserving our own humanity, not performing a risk-benefit analysis.

None of this detracts from the cogency of Henderson and Cavanagh’s observations, nor does it obviate the importance of avoiding confusion with respect to both the different contextual meanings of self-defense and their divergence from wartime targeting rules. However, I’m not sure that it’s possible to get away completely from accounting for permutations of self-defense when we talk about war-fighting. Otherwise, we risk being legally correct in the technical sense, while losing sight of the larger discussion over what it means to fight honorably.

Jurisdictional Overlap: Security Council Sanctions and the ICC

by Kristen Boon

A background paper for a High Level Review of Sanctions currently underway at the UN raises some important and interesting questions about the increasing “jurisdictional overlap” between individuals designated on targeted sanctions lists and international criminal courts.   In relevant part, the paper states:

Increasingly, the reach of sanctions has gone beyond those responsible for initiating and supporting threats to, or breaches of, international peace and security, to include perpetrators of conduct that could be crimes within the jurisdiction of the ICC (especially violations of international humanitarian law, human rights, attacks against civilians, recruitment of child soldiers, sexual and gender based violence), thus increasing the overlap. Inevitably, in some cases the same individuals are or could be subject to both ICC proceedings and to UNSC targeted sanctions.

Even where their “jurisdiction” overlaps, sanctions and the ICC have different objectives (and evidentiary standards): sanctions applied to a particular individual seek to protect “the peace” or, more concretely, civilians, from future actions of the individual, by constraining the individual’s ability to act; an ICC proceeding seeks to determine the accountability of that individual for past actions.

 

This overlap is significant for a number of reasons.  First, it shows an important evolution in sanctions design, from comprehensive sanctions, to targeted measures against specific individuals which run the risk “criminalizing” certain behaviors without a judicial process.   I should be clear that from the work I have seen of sanctions committees, restraint rather than overstepping has been the norm.  Nonetheless, it does present issues of “individualization” (which have been analyzed by Larissa van den Herik in the context of human rights and the Kadi and Nada cases in Europe).  Second, it raises issues of how the ICC and Security Council and its subsidiary bodies cooperate.  The ICC – UN Relationship agreement is a framing instrument here, as is Part IX of the ICC statute on cooperation.  That said, the absence of a general policy at the UN to designate individuals on sanctions lists (where a relevant sanctions regime exists) is striking.  The most high profile (read: political) example of that involves Omar Al-Bashir – despite an outstanding ICC arrest warrant against him, ongoing sanctions regime against the situation in Sudan, and a Security Council referral of the situation to the ICC, Bashir has never been designated under the sanctions regime.  As I argued in this post last year, a travel ban would have been one way to restrict his efforts to attend the General Assembly meetings in New York in 2013.  Finally, write large, it presents the old “peace versus justice” debate because of the different goals of sanctions (conflict management) and criminal prosecutions (atrocity for past acts.)

Emerging Voices: The Old Woe of Contemporaneity and Cartographic Evidence in a New Bottle

by Arpita Goswami

[Arpita Goswami currently serves as an Assistant Editor to China Oceans Law Review, and is a Graduate Assistant at the South China Sea Institute, Xiamen University, P.R. China. The views expressed here are her own and have no connection whatsoever to the above mentioned organizations.]

The recently concluded Bay of Bengal Maritime Arbitration Case between India and Bangladesh offers interesting insights into the application of the judicial pronouncements to the factual situation contemporaneous with it for determining the boundary lines and the usage of cartographic evidence in the same. This post examines the section of the Award delimiting the riverine boundary between the two States. The reasoning given by Tribunal in this case makes an interesting read regarding the technicalities of demarcation of boundaries, challenges in the contemporaneous applications and the validity of cartographic evidence in such an application.

Background (para. 50-55 of the judgment)

The Indian Independence Act, 1947 of the United Kingdom, partitioned from India, the states of West Pakistan and East Pakistan. East Pakistan was carved out of the Bengal Province, with West Bengal remaining in India. In order to demarcate the boundary between East Pakistan and West Bengal, the Bengal Boundary Commission was set up in 1947 which was chaired by Sir Cyril Radcliffe. In Aug. 1947, the Commission submitted the report describing the boundary, and is known as “Radcliffe Award”. However, in 1948 the Indo-Pakistan Boundary Dispute Tribunal was set up by India and Pakistan to address the disagreement in the application of the Radcliffe Award. In 1950, the above mentioned Tribunal gave its Award, known as the “Bagge Award”.

In 1971, East Pakistan declared independence from West Pakistan, and succeeded as a new state of Bangladesh to the territory of East Pakistan and its boundaries.

The boundary between India and Bangladesh runs across the Sunderban Delta region. The southern section of the land boundary lies in the riverine features, which fall in the Bay of Bengal. Among its tasks of finding the land boundary terminus anddelimiting the territorial sea, EEZ and continental shelves between the two States, the present Tribunal also had to concern itself with delimiting the boundary river between the two, which will be discussed in the passages below.

Delimitation of the Boundary River

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The al-Senussi Admissibility Decision in Two Quotes

by Kevin Jon Heller

Libya’s Foreign Minister, 21 May 2014:

There is a complete absence of the army and the police [in Libya], which are responsible for the security of the state. Armed groups are not under control…. State-building needs to build security institutions first and foremost because with no security there can be no investments, building a real state, nor an effective criminal justice system to protect rights and freedoms.

ICC Appeals Chamber, 24 July 2014:

The Appeals Chamber concluded that there were no errors in the findings of the Pre-Trial Chamber that Libya is not unwilling or unable to genuinely prosecute Mr Al-Senussi.