Recent Posts

Ransom and Material Support

by Jens David Ohlin

The Foley family is furious that the US government did little to help them rescue their son, James Foley, from ISIS terrorists. In a recent New York Times article, the Foley family expresses frustration that European countries were quietly negotiating to pay ransoms for their nationals, while the US steadfastly refused to do so. As foreign nationals were gradually released for payments, detainees from the UK and the US remained behind because these two countries refuse to pay ransoms to terrorists. The Foleys figured this out late in the game and attempted a last-minute fundraising campaign to generate funds, but the effort came too late. They were also told by FBI agents that they could be prosecuted for paying a ransom to ISIS in exchange for their son.

I want to analyze in greater detail the claim that paying a ransom to ISIS could constitute a crime. I’m not aware of a specific federal statute banning the paying of ransoms to terrorist organizations. (If readers are aware of such a statute, please let me know in the comments section). Rather, I’m assuming that the FBI claim is based on the application of the material support provision of the federal code (18 U.S. § 2339B) which provides:

(a) Prohibited Activities.—

(1) Unlawful conduct.— Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).

(2) Financial institutions.— Except as authorized by the Secretary, any financial institution that becomes aware that it has possession of, or control over, any funds in which a foreign terrorist organization, or its agent, has an interest, shall—
(A) retain possession of, or maintain control over, such funds; and
(B) report to the Secretary the existence of such funds in accordance with regulations issued by the Secretary.

The first question is whether the payment of ransom constitutes the knowing provision of material support or resources. I’m not sure what a jury would do with this question. On the one hand, any money, delivered for any reason, can be considered a type of resource. Furthermore, the statute criminalizes knowing support, not just purposeful support. If it was the latter, the Foleys could claim that their purpose was to free their son, not provide material support. But since the mens rea is knowingly, perhaps they would be liable even if their purpose was the freedom of their son.

The bigger issue is whether they could claim an affirmative defense. The most likely possibilities are necessity and duress.

Necessity applies when a defendant, in response to a threat or emergency, violates a criminal prohibition because doing so represents the lesser of two evils. In that sense, the necessity defense has a utilitarian or consequentialist logic stemming from its status as a justification. If the defendant produces a greater evil, then the defense no longer applies.

In contrast, duress applies when the defendant performs a criminal act due to a threat of grave injury or death to the defendant or a close associate, emanating from a third party. (In the past I’ve argued that the defense should apply even if the target of the threat is not a close associate.) The paradigm of duress involves an autonomy-reducing threat that requires a level of moral heroism that cannot be expected by the law. The third party “forces” the defendant to violate the criminal prohibition by virtue of a threat that cannot be reasonably ignored. As such, duress is an excuse which negates the culpability of the actor. As an excuse, duress should not require that the defendant selected the lesser of two evils, because the claim has nothing to do with the defendant’s selection of a better outcome. Indeed, in duress situations the defendant may have selected the worse outcome because they are unwilling to sacrifice the life of the threatened individual.

American jurisdictions impose restrictions on the application of both defenses. Under the rule from Dudley & Stephens, necessity and duress are unavailable in cases of murder. There is a complicated question of whether the same exclusion should apply in manslaughter cases.

It seems clear to me that the Foleys, if they had paid a ransom to ISIS, would be (and should be) entitled to a duress defense. If they paid the ransom to ISIS, they would be providing material support to ISIS only by virtue of the threat against their son, which they cannot reasonably be expected to ignore. The government position is that paying ransom endangers future US citizens who would be captured for ransom by a terrorist organization incentivized to repeat the strategy. This seems factually true, though this point is irrelevant: duress as an excuse applies even if the outcome produced by the defendant is worse. Duress is not a lesser-evils defense. Finally, even if it were relevant, the future lives endangered by paying a ransom are speculative and hypothetical, rather than actual and manifest.

As a final point, necessity is often excluded as a defense if the statutory provision embodies a specific legislative choice or policy to criminalize the decision made by the defendant. However, that exclusion does not apply to excuses such as duress. And even in the context of necessity, there is no evidence that Congress had in mind the specific situation of paying ransom to terrorists. If, in the future, Congress passes a specific statute outlawing the paying of ransom to terrorists by private citizens, then the exclusion would be relevant.

Consequently, the Foleys are entitled to the duress defense, and that seems like the right result. And it also helps to explain the popular outrage over the FBI’s heavy-handed techniques against the Foley family. For the FBI agents to suggest to the Foleys that they would be prosecuted for paying the ransom was not only tone deaf–but it also indicates that the FBI agents did not understand the law of duress.

The UN Security Council Takes up Ebola

by Kristen Boon

Today, the UN Security Council held an open debate on the ebola outbreak in Africa, and unanimously adopted Security Council Resolution 2177.   Background on the US sponsored resolution is available here.

The Council’s decision to take up the issue of Ebola is significant for three reasons. First, the Council calls the Ebola outbreak a threat to international peace and security. In the preamble, the Resolution expressly states the Council is “determining that the unprecedented extent of the Ebola outbreak in Africa constitutes a threat to international peace and security.”  Although the resolution was adopted under Chapter VI (apparently due to concerns from Russia), it indicates a broadening concept of what events might trigger the Council’s jurisdiction.    Security Council meetings on public health crises are rare, although two prior resolutions have been adopted on HIV/AIDS in 2000 and 2011 (S/RES/1308; S/RES/1983).

Second, the resolution contains a number of direct instructions to member states and private industry.   It “calls on” Member states to lift general travel and border restrictions, provide urgent resources and assistance, including deployable medical capabilities.  It also “calls on” airlines and shipping companies to maintain trade and transport links, reinforcing the Council’s increasing engagement with non-state actors.

Finally, the outbreak of Ebola is changing the UN’s approach to intervention in Liberia generally. Not only have plans to wind down UNMIL and UN sanctions been put on hold in light of the public health and social crisis, but the role of UNMIL is likely to evolve, with peacekeepers being called upon to provide logistical support to fight the epidemic.

This is a good step by the Security Council: it is demonstrating its relevance to a current and destabilizing threat with international ramifications, in a country that has been on the Council’s agenda for many years.

Will There Be a Scottish Precedent?

by Chris Borgen

Since Kosovo’s declaration of independence there has been talk about whether there is a “Kosovo precedent,” and, if so, just what does it mean. The International Court of Justice’s advisory opinion
captured the imaginations of national parties throughout Europe. For example, Aitor Estaban, a representative from Spain’s Basque Nationalist Party (PNV) said that “the main consequence is that Spain cannot keep saying that the international rules don’t allow for a split of the country for a new Basque independent country into the European Union. So I think that should be already over and that’s good news for us.” (See H. Jamar & M. K. Vigness, ‘Applying Kosovo: Looking to Russia, China, Spain, and Beyond After the International Court of Justice Opinion on Unilateral Declarations of Independence’, 11 German Law Journal (2010) 8, 913, 925.)

Will we now add a “Scotland precedent”  as well as  a “Kosovo precedent?”  Today’s referendum in Scotland has been described as a bellwether or a “canary in the coalmine” signaling the future of nationalism within the European Union. There are currently twenty to twenty-five “significant” separatist movements across Europe. (See, Bruno Coppieters, ‘Secessionist Conflicts in Europe’, in D. H. Doyle (ed.), Secession as an International Phenomenon: From America’s Civil War to Contemporary Separatist Movements (2010), 237, 247.) Many writers seem to assume that as Scotland goes so does Catalonia, the Basque Countries, Padania, and any number of other parts of EU countries with their own national aspirations. But is this accurate? Would a “Yes” vote—or even just the fact that there is a vote—form some sort of “Scotland precedent?”

First, what do we mean by “precedent?” At times, commentators  use the word to mean, interchangeably, the strict legal sense of a legally binding decision and the looser political sense of a persuasive analogy that can be drawn from a similar case. What role may Scotland’s referendum have in regards to the nationalist movements elsewhere in the EU? Let us consider the number of legal and political factors at play in just one example: Catalonia.

At first blush, the situation in Catalonia may seem similar to that in Scotland. As a political entity, Catalonia has some similarities to Scotland (if slightly larger). As Bloomberg News explains:

Catalonia is a region in the northeast corner of the Iberian peninsula with about 7.5 million people compared with the 5.3 million who live in Scotland. Its 193 billion-euro economy is about the size of Finland’s and compares with the 150 billion-pound gross domestic product of Scotland.

Like Scotland, Catalonia has a distinct linguistic and national heritage. It has a special status within the Spanish state with greater autonomy and it has a population that has been seeking greater levels of independence, if not full separation and sovereignty. And the regional government of Catalonia has scheduled a referendum on independence for this coming November. For more on the history of Catalonia, see this.

Despite these similarities, most international lawyers could see quickly that a domestic referendum in the UK does not provide binding legal precedent for whether or not a domestic referendum in Spain would actually grant independence to Catalonia. Rather, the issue is one of political precedent: persuasive strength. In an argument supporting Catalonia’s referendum, Carles Boix and J.C. Major wrote in Foreign Affairs that, in their view:

International opinion tends to support this referendum, just as it has supported the one that will be held in Scotland this September or those that took place in Quebec a few years ago. Indeed, finding out where everyone stands would appear to be a necessary step to make an informed decision on how to proceed. And yet the Spanish government has not granted the Catalan authorities the power to conduct what would be a non-binding referendum — something that would be perfectly legal according to articles 92 and 150.2 of the Spanish constitution.

But even if one is to argue that Scotland’s referendum is persuasive authority, one first needs to consider whether the analogy is a good one. And, for that, we need to consider once again the legal and political situation. (more…)

Scottish Independence Insta-Symposium: “Devolution Max” and the Question of Referendum Questions

by Christopher K. Connolly

[Christopher K. Connolly is an Assistant United States Attorney, Southern District of New York.  This post is written solely in the author's personal capacity.  The views expressed in this post are the author's alone and cannot be attributed in any way to his employer or any branch of the U.S. Government.]

On September 7th, faced with new polls showing a surge in support for Scottish independence, the British government made a pledge to the people of Scotland: vote “No” in this Thursday’s referendum, thereby remaining within the United Kingdom, and more powers will be devolved to Scotland’s parliament.  According to the Chancellor of the Exchequer, George Osborne, if Scots reject independence, they will receive “[m]ore tax-raising powers, much greater fiscal autonomy . . . . More control over public expenditure, more control over welfare rates and a host of other changes.”

Osborne’s offer represents a new development in the run-up to the referendum–one that Scottish National Party (SNP) leader Alex Salmond quickly dismissed as a “panicky measure” brought on by the increased momentum of the pro-independence campaign.  But it’s hardly a new concept.  In essence, the British government is offering some form of “devolution max”–the term typically used to describe scenarios in which Scotland would obtain virtually complete internal autonomy (in particular, robust economic and fiscal powers) while remaining part of the United Kingdom for external purposes such as defense and foreign affairs.  The SNP recognized devolution max as an option for Scotland’s political future (albeit not the SNP’s preferred option) in a 2009 White Paper, and the party’s initial proposals for the upcoming referendum envisioned a ballot containing two questions, the first addressing independence and the second gauging support for devolution max.

But British prime minister David Cameron, confident in his government’s ability to win the referendum and wary of handing Salmond a “consolation prize” in the form of enhanced autonomy, rejected the idea of including two questions and instead insisted on an “up-or-down” vote on independence.  In the Edinburgh Agreement reached in October 2012, which laid the ground rules for the referendum process, the Scottish government agreed to a one-question referendum ballot in exchange for other concessions from Westminster.  Thus, when Scottish voters go to the polls on September 18th, they will be asked a single, straightforward question: “Should Scotland be an independent country?  Yes/No.”

Although the British government’s push for a single referendum question was prompted in large part by political considerations, it also comports with guidance concerning the phrasing of referendum questions provided by legal opinions and state practice.  In its 1975 Western Sahara advisory opinion, the International Court of Justice (ICJ) recognized the general principle that “the application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned” (para. 55).  The Canadian Supreme Court expanded on this concept in its 1998 Quebec Secession Reference.  There, although the court found that Quebec did not possess a unilateral right to secede under either domestic or international law, it nonetheless concluded that “a clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other [Canadian provinces] would have to recognize” (para. 150).  In other words, the democratically expressed will of the people of Quebec to secede would oblige the rump Canadian state to engage with Quebec in negotiations concerning possible separation.  The court emphasized, however, that “[t]he referendum result, if it is to be taken as an expression of the democratic will, must be free of ambiguity both in terms of the question asked and in terms of the support it achieves” (para. 87).

The Canadian Supreme Court’s opinion was followed in 2000 by the Clarity Act, which gave teeth to the court’s view of the need for a clear and unambiguous referendum question.  Among other things, the Act obliges Canada to negotiate with Quebec over the terms of a possible separation only following a referendum that sets forth an unambiguous choice between either full separation or continued inclusion in the Canadian state.  Accordingly, the Act prohibits any “referendum question that envisages other possibilities in addition to the secession of the province from Canada, such as economic or political arrangements with Canada, that obscure a direct expression of the will of the population of that province on whether the province should cease to be part of Canada” (art. 1, para. 4(b)).

The Quebec Secession Reference and the Clarity Act must be understood against the backdrop of Quebec’s 1980 and 1995 referendums on independence.  The questions posed in those referendums were far from clear.  For example, the 1995 referendum question (the shorter of the two) read: “Do you agree that Quebec should become sovereign, after having made a formal offer to Canada for a new economic and political partnership, within the scope of the Bill Respecting the Future of Quebec, and of the agreement signed on June 12, 1995?”  Moreover, the ultimate issue of independence was to a certain extent obscured by debates over “sovereignty-association,” a proposal often made by Quebecois nationalists under which Quebec, though nominally independent, would retain some form of political and economic partnership with the rest of Canada.  The Canadian government sought to ensure that any subsequent referendum would avoid these pitfalls.

Judged by these standards, the Scottish referendum question could not be more clear and straightforward.  Indeed, in language reminiscent of the ICJ and Canadian Supreme Court opinions, the Edinburgh Agreement asserts that the referendum will “deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect.”  But there is room to question whether the simple, single question will best capture the political preferences of the Scottish electorate.  Polls have often shown that many, if not most, Scottish voters prefer neither the status quo nor outright independence–they would support devolution max if that were an option in the referendum.  The British government’s recent pledge to provide Scotland with greater autonomy appears to recognize this sentiment by attempting to turn a “No” vote into a vote for devolution max.  But will it be too little, too late for those who want Scotland to remain within the United Kingdom?  And given the question presented to them, which makes no mention of the possibility of further devolution, are Scottish voters being provided with a clear sense what voting “No” might entail?

Undoubtedly, referendum questions must be framed with clarity to ensure that voters understand the choice that is being presented to them.  But notwithstanding the lessons from Quebec, the Scottish situation raises the question of whether that choice should always be limited to either outright independence or continued inclusion in the state.  A clearly-worded second question concerning devolution max might have captured the wishes of many Scottish voters.  As I’ve argued elsewhere, “the increased autonomy envisioned by that proposal might have been sufficient to satisfy many Scottish nationalists.  By taking the option off the table and making the referendum an all-or-nothing affair, the British government is running the risk that many Scottish voters might instead opt for independence” (p. 102).  David Cameron’s single question, though admirably clear and unambiguous, has started to look like a political gamble.  It remains to be seen whether it will pay off.

ASIL Names New Executive Director: Mark Agrast

by Duncan Hollis

Those readers who are members of the American Society of International Law know how critical the role of its Executive Director is and how great a job the previous director, Betsy Andersen did since taking on the role in 2006.  Betsy left ASIL earlier this year to run the ABA’s Rule of Law Initiative, and my former colleague from the State Department, Ron Bettauer, has been serving as an Interim Director for the last several months.  Today, I’m pleased to report ASIL announced the hiring of its newest Executive Director, Mark Agrast.  Here’s the highlights from ASIL’s news release:

The American Society of International Law (ASIL) announces the appointment of Mark D. Agrast to serve as the Society’s eighth executive director beginning October 20, 2014 . . . Agrast, who is an ASIL member, currently serves as deputy assistant attorney general in the U.S. Department of Justice’s Office of Legislative Affairs, where he has worked since 2009. . . Prior to joining the Justice Department, Agrast was a senior vice president and senior fellow at the Center for American Progress from 2003 to 2009, and from 1992 to 2003 he held senior staff positions with two members of the U.S. House of Representatives.  Agrast previously practiced international law with the Washington office of Jones Day.  He also has served in numerous leadership capacities in the ABA, including as a member of its Board of Governors and its Executive Committee, a past chair of the Section of Individual Rights and Responsibilities and the Commission on Immigration, and current chair of the Commission on Disability Rights.  He is a longtime member of the ABA’s House of Delegates.  Agrast has co-chaired the National Lesbian and Gay Law Association (now the National LGBT Bar) and served as that organization’s ABA Delegate.  He has also been a leader of the World Justice Project since its inception and has played a central role in designing and implementing its Rule of Law Index, a quantitative assessment measure of the extent to which countries adhere to the rule of Law.  Agrast graduated summa cum laude from Case Western Reserve University, pursued his postgraduate studies as a Rhodes Scholar at the University of Oxford, and received his J.D. in 1985 from Yale Law School, where he was editor in chief of the Yale Journal of International Law. 

 

Looks Like AUMF Basis for ISIL Operation Will Stick

by Peter Spiro

After a flurry of commentary in the wake of Obama’s speech last week and the on-background legal justification that came with it, the silence has been deafening. The immediate reaction to the AUMF hook for the ISIL operation was something approaching disbelief. It came out of the blue and everyone felt blindsided.

But it is attracting some support. Marty Lederman offers a qualified defense here. Cass Sunstein is all in, so by definition it is a credible legal argument. In the New York Times, the ed board and Bruce Ackerman predictably condemn the justification. But the level of agitation among policy elites seems low, on par with responses to past presidential uses of force. There is a lot of chatter on the Hill, but the prospects for affirmative legislation to authorize or limit (or for that matter prohibit) the ISIL operation are slim. There is no groundswell of opposition from the public.

In other words, this one is going to stick. There will be no serious challenge to the Administration’s legal argument that the President has the authority to undertake the operation. From the Administration’s perspective, the AUMF basis has the advantage of turning off the War Powers Resolution’s 60-day clock. It may also look less confrontational to use a statutory justification (even if it is a stretch) than a constitutional one. It fits more comfortably into the Administration’s narrative of interbranch cooperation.

But it may not matter that the Administration grounds its argument in the AUMF and not in its independent constitutional powers under article II and historical practice. The bottom line is the same. The test: how will future presidents put the episode to work? On the one hand, to the extent that it’s just about applying a particular statute to particular circumstances, it might be seen as limited to the facts, good for this day and train only.

On the other hand, one could imagine it being deployed in support of an article II argument, especially to the extent the statutory basis for the operation looks thin in historical perspective. The informality of the justification would make it more pliable. (Will we get the full legal work-out on this from OLC? Maybe not.) If I were an OLC lawyer looking to justify some future military operation on presidential authority alone, it would look like a precedent to me.

The Administration’s strategy on the WPR clock in the Libya context had the same features and may have the same kind of legacy. The “hostilities” argument was thin as an exercise in statutory interpretation, but it was less confrontational than a constitutional claim (minimalism goes to war). The legacy there won’t just be about what qualifies as “hostilities” for WPR purposes. It is as much about the efficacy of the 60-day clock. The Libya episode doesn’t undermine claims that the WPR is unconstitutional. It might even support those claims, at least indirectly (especially as coupled with the Clinton Administration’s similarly thin defense against application of the 60-day clock in the Kosovo case).

So ultimately it may not matter too much which card the Administration played in asserting authority for the ISIL operation. As in the past, a president failed to secure specific, contemporaneous authorization for a limited use of force, and nobody really pushed back.

Scottish Independence Insta-Symposium: International Law Should Matter–Thoughts on the Proposed Scottish Secession

by Milena Sterio

[Milena Sterio is The Charles R. Emrick Jr. - Calfee Halter & Griswold Professor of Law and the Associate Dean for Faculty Enrichment at the Cleveland-Marshall College of Law.]

As many readers may already know, Scotland may soon become an independent nation.  Scots will vote in a September 18 referendum whether to secede from Great Britain.  The exact question that they will answer, in a yay or nay vote, is “Should Scotland be in independent country?” This post will analyze the legality of such proposed secession under international law, and will argue that international law should matter in secessionist disputes, and that international law could develop a norm containing a positive right to secession under certain circumstances.

First, any proposed secession can be analyzed from both a domestic as well as an international lens.  From a domestic perspective, the relevant question for any proposed secession is whether domestic law authorizes it.  In other words, does a domestic constitution or other kind of statute envision the possibility that one portion of a state will separate out to form a new state or join a third existing state. In the Scottish context, domestic law does allow for the possibility of secession – although the United Kingdom (UK) has no written constitution, the referendum is being held with the consent of the UK government, which, although it prefers if Scotland remained a part of the larger UK, has agreed to respect the results of the referendum.  Arguably, if the proposed secession is legal domestically, then international law does not matter, and the question of legality of the proposed secession from an international point of view may never be asked.  However, international law as a body of law governing inter-state relations should matter, because international law may be called upon in order to reserve an inter-state dispute over a secessionist issue.  Moreover, multiple international treaties and other rules exist on the subject-matter of statehood, state formation, and self-determination, which are all related to secession and may need to be analyzed in order to resolve a secessionist claim.  Finally, international law contains norms relating to the respect of any state’s territorial integrity; it seems logical that international law should be consulted at times when such territorial integrity may be at risk of being disrupted, through the process of secession.

This leads me to my second point, which is that international law when examined post-Kosovo may be analyzed as tolerating a limited right of secession.  Most scholars would agree that while peoples have a right to self-determination under international law, such a right does not lead to a positive right to secession. First, the right to self-determination had been interpreted for decades as only applicable in the decolonization context.  Second, the right to self-determination in most instances authorizes a people to exercise its right to internal self-determination, which is typically reflected in a right to form a regional government and/or have other cultural, linguistic, and religious rights respected by the mother state.  The right to self-determination, outside of the decolonization context, may lead to the secessionist type of external self-determination only in extreme instances where the mother state chooses to completely disrespect the people’s right to internal self-determination.   According to the Canadian Supreme Court in the Quebec case, scholars had argued that “when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession….” The Canadian Supreme Court went on to conclude that in the Quebec case, it was unnecessary to discuss this issue because the Quebecois rights to internal self-determination had been consistently respected by Canada. However, the Court’s acknowledgement of this possibility of secession, outside of the decolonization context and authorized by international law is meaningful and important, as it points to a growing discussion about the usefulness of developing a positive international law framework on secession

Additionally, recent events and state practice may contribute to a re-shaping of international law on secession.  All readers will remember that in 2008 the Kosovar Parliament unilaterally declared independence from Serbia.  Kosovo was recognized as a new state by multiple countries immediately, and was effectively able to secede from Serbia.  Can a new rule of international law on secession be derived from the Kosovo precedent? Possibly. While no new international law norms have been proclaimed either by treaty or customary law, and while the International Court of Justice has refused to seriously consider the issue of Kosovar secession, nobody can ignore the Kosovo “precedent.”  Several secessionist groups around the planet have already relied on Kosovo in order to legitimize their own secessionist quests.  The Crimean referendum has been compared to the case of Kosovo; secessionist governments of South Ossetia and Akbhazia have invoked the Kosovo precedent; so have various leaders of the Transylvanian, Transnitrian and Quebecois secessionist movements.  Importantly, most governments battling secessionist movements within their borders have refused to recognize Kosovo, such as Spain, Israel and Greece.  And international law scholars have grappled with the legality of the Kosovar secession.  All of this leads me to my third and final point.  It appears that states care deeply about secession, that states often rely on international law in order to (de)legitimize secessionist quests, and that recent state practice, post-Kosovo, may highlight the need to at least discuss the development of a positive right of secession under international law.

My third and final point is that while international law lacks positive norms on secession, a normative framework on secession would be extremely beneficial in evaluating future secessionist claims, in situations where domestic law is silent on secession (as many domestic laws are, for obvious reasons) and where internal warfare is on the brink of erupting or has already erupted.  Most secessionist movements are about territory, as Lea Brilmayer famously wrote several decades ago.  Secession and territoriality go hand in hand, and international law could and should develop to reconcile these two seemingly contradictory norms.  In the context of the proposed Scottish secession, this may not matter as much, because, as argued above, domestic law already provides for this possibility and because warfare is not likely any time soon.  However, in other Kosovo-like situations, international law could serve as a powerful conflict-resolution tool in reconciling the secessionist people’s quest for an independent state (read: territory) with the mother state’s desire to maintain its territorial integrity.  Some potential factors that an international law framework for secession could use include the examination of territorial history and sovereignty over the dispute region, as well as of the historical immediacy of the territorial claim asserted by the secessionist group, an assessment of the disputed territory’s ethnic composition, an evaluation of the mother state’s responsiveness to the secessionist group’s claims to autonomy, and an overall assessment of regional stability and security.  Because any secession destabilizes the territorial integrity of at least one state, leads toward the creation of a new state, and in all likelihood disturbs regional security, it seems fitting that secession should be an issue of international law.

Scottish Independence Insta-Symposium: The International Legal Significance of the Scottish Independence Referendum–A Long View

by Tom Sparks

[Tom Sparks is a PhD Candidate in Law at the Durham University School of Law and member of the ERC-funded "Neo-Federalism project."] 

We have been repeatedly told that the Scottish referendum of the 18th of September  is an historic moment, and it surely is.  As a matter of international law, however, it may be that the most significant decision in the Scottish independence saga has already been made. On the 15th October 2012 an agreement was concluded between the United Kingdom and Scottish Governments (The Edinburgh Agreement), by which the UK Government agreed to delegate authority under s.30 of the Scotland Act 1998 such that the Scottish Parliament would be competent to pass legislation on an independence referendum.  Paragraph 30 of the Memorandum of Agreement stated that: The United Kingdom and Scottish Governments […] look forward to a referendum that is legal and fair producing a decisive and respected outcome. The two governments are committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom. Although it appears unlikely that the Edinburgh Agreement has legal force either domestically or internationally, it is significant because it constitutes a political recognition that the question of whether Scotland should become an independent State  .  Moreover, it recognises that the independence decision is a decision that the people of Scotland have the right to make, and indicates that both Governments will abide by the outcome.  The importance of these statements lies in their value as (political) precedents – something which can be best appreciated by looking to the history of self-determination. Self-determination has always been a controversial concept. From its earliest days it has been seen as deeply subversive, but it is at once more radical and more modest that is often appreciated.  In the first place, although self-determination is intimately connected to secession, the two are not synonymous.  I suggest self-determination claims may be subdivided into four categories: political self-determination (often called ‘internal’), secessionary self-determination (‘external’), remedial self-determination (whereby a serious and prolonged denial of political self-determination results in a right to secede), and colonial self-determination (a category sui generis because of the political context).  In its most common incarnation, political self-determination, it is an internal concept that refers to the right of the people of a State (i.e. the entire populace of a pre-defined territorial entity) to determine their form of government.  So commonplace is this political form, that the ICJ in its East Timor decision declared self-determination ‘one of the essential principles of contemporary international law’, and stated that:

In the Court’s view, [the] assertion that the right of people to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable. (Paragraph 29)

It its political form, the concept of self-determination represents a recognition of what may loosely be described as popular sovereignty, and serves as a guarantee of the principle of non-interference. Simultaneously, however, self-determination represents a claim on behalf of the people to an authority as of right superior to the government of a State, and even a claim on behalf of a minority to an authority as of right superior to the (sovereign) power of the State itself.  Both claims are deeply irreverent, striking as they do at the legitimacy of the existing power structures of the State.  Typically, therefore, although political self-determination has now been accepted as ‘one of the essential principles of contemporary international law’, the concepts have a long and violent history. Self-determination’s voyage from radical and dangerous concept to accepted tenet of international law begins with the American Declaration of Independence.  In 1776 the Continental Congress of America adopted the Declaration, stating that ‘these United Colonies are, and of Right ought to be Free and Independent States’.  Following a destructive war, the states’ independence from Britain was confirmed in 1783 with the signing of the Treaty of Paris.  Although the declaration effected the secession of the United States, the document itself speaks in terms of remedial self-determination, and thus represents a powerful claim to a right to political self-determination on behalf of the territories.  The Declaration holds that, in order to protect the ‘unalienable Rights’ of man, ‘Governments are instituted among Men, deriving their just powers from the consent of the governed’.  Further:

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundations on such principles and organizing its powers in such a form, as to them shall seem most likely to effect their Safety and Happiness.

The principles expressed in the American Declaration of Independence were echoed in the Declaration des Droits de l’Homme et du Citoyen, of 1789.  Like the American Revolution, the French Revolution espoused a philosophical conviction that ‘[m]en are born and remain free and equal in rights.’   Like the American Revolution, the French Revolution  recognised the principle of popular sovereignty: ‘The principle of any Sovereignty lies primarily in the Nation.  No corporate body, no individual may exercise any authority that does not expressly emanate from it.’  And as with its American counterpart, the French Revolution of 1789 represents an acceptance and application of the principle of political self-determination: that the legitimacy of the form of government derives from the will of the people, and that the People, as a corporate entity, has the right to alter that form of government if it has become inimical to their interests or wishes. The revolutions are, and remain, precedents  – in both the legal and political sense.  Of course, they had no legal force in the 18th Century – at that time this idea, that the people can depose the ruling power, was even more controversial than the idea that minorities can break away from a State is today – nor for many years afterwards.  But they have subsequently acquired legal force.  Political self-determination has been enshrined in the Charter of the United Nations (Art.1(2)), and the common first Article of the ICCPR and ICESCR (Art.1(1)), and has evolved into a norm of customary international law of erga omnes status (East Timor).  It is not possible, here, to review the whole progress of the concept – naturally the revolutions were not, in and of themselves, sufficient to generate a legal norm.  But it was this first step that was the most significant: it marked the shift in perspective that begun the slow process towards norm-formation.  As Cassese opines, the revolutions

[M]arked the demise of the notion that individuals and peoples, as subjects of the King, were objects to be transferred, alienated, ceded, or protected in accordance with the interests of the monarch. (Antonio Cassese, Self-Determination of Peoples: a Legal Reappraisal (Cambridge University Press 1995) 11.)

The significance of the Scottish referendum, similarly, lies in its value as a precedent.   The Edinburgh Agreement is, as commented above, a recognition that the independence decision is a decision which the people of Scotland have a democratic right  to make, and that it is a decision to be made by them alone.  It also politically binds the Governments to respect the result of the referendum.  In short, it represents an acceptance, in this instance, by the United Kingdom of the right of the Scottish people to secessionary self-determination.  Irrespective of the outcome of the vote, the Scotland precedent puts pressure on other governments to grant similar referendums to secessionist movements in their own territories.  At present that pressure is only political, but it is entirely conceivable that, should other States follow Britain’s lead, a new norm of customary international law will begin to emerge. Scotland is not a flash in the pan. The question of secession will surely crop up again, and again in years to come (see, for example, Catalonia, and Iraqi Kurdistan).  The reaction of the States concerned, and the wider international community, may mark a paradigm-shift in international law.  It remains to be seen whether Scotland will be secessionary self-determination’s 1776, but we’ll have to wait longer for that result.

Scottish Independence Insta-Symposium: Scotland’s Secession from the EU

by Jure Vidmar

[Jure Vidmar is a Leverhulme Early Career Fellow in the Faculty of Law and Research Fellow of St John's College, Oxford. Some arguments made in this post are further elaborated on in this article.]

The Treaty on European Union (TEU) now gives member states an explicit right to exit the EU and provides for a mechanism that makes this right effective. However, the TEU does not directly regulate the future relationship between the EU and a territory which is seceding from a member state. If Scotland votes for independence, this will be the first case of secession from an EU member state. Thus, neither a direct treaty provision nor a useful precedent exist that would regulate the Scottish scenario. Would Scotland either join or stay in the EU at the moment of independence? If not, what would happen with the free movement rights of EU citizens residing in Scotland, and of those future Scottish citizens who are currently residing in other EU member states?

Professors Boyle and Crawford convincingly demonstrate that rump UK (rUK) would continue UK’s international personality, while Scotland would become a new state, with certain problems that this status brings. Among these problems are accession to treaties and membership of international organizations. As Richard Hoyle shows, it is perhaps arguable that automatic accession applies where human rights treaties are concerned. Even that is not uncontested, but in any case, there is no automatic accession to treaties establishing international organizations or other institutionalized supra-state formations. An independent Scotland would thus need to join the UN anew. The same scenario applies for its EU membership. If Scotland exits the UK, it prima facie also exits the EU. This conclusion is not unqualified, however.

Should Scotland vote for independence, a period of negotiations will follow between the governments in Edinburgh and London. In this period, the exact modalities of secession will need to be determined. It is possible and perhaps even politically likely that negotiations with Brussels would also be initiated in this transitional phase, so that Scotland could enter the EU at the moment of independence. It might not be necessary for Scotland to follow Article 49 TEU which regulates admission of new members. Instead, the TEU could be amended by an ordinary revision procedure of Article 48. Professor De Witte convincingly explains that Article 49 is concerned with states that are outside of the EU at the moment of application. Scotland, however, would not (yet) be a state if it asks for admission in the transitional period after a ‘yes’ vote, and it would still be an EU territory at that time. It is thus questionable whether Article 49 should be followed in this case at all. Another argument in support of the route via Article 48 is that the TEU would need to be amended in any case. Without Scotland, rUK would be a smaller state, and without relevant amendments, rUK would be overrepresented in the EU institutions. An elegant solution could be an amendment which would admit Scotland, make institutional provisions for its membership, and acknowledge the new size of rUK.

A shortcut via Article 48 seems to be feasible, but does not solve Scotland’s major problem which is otherwise also looming large in Article 49: all member states would need to ratify such an amendment of the TEU. It is not possible to exclude that the ratification process could fail in some member states with their own secessionist problems (e.g. Spain). In other words, the applicable legal framework does not provide for any automaticity and certainty on Scotland’s path to EU membership. Regardless of which route is followed, EU membership will be subject to political negotiations and approval of all member states.

The possibility of Scotland’s implicit EU exit opens the problem of rights stemming from EU citizenship. Would they be lost entirely? This could have serious consequences for Scots currently residing in other EU member states, as well as for EU citizens currently residing in Scotland. Would they need to acquire visas and work permits or leave their homes? It has been suggested that EU citizenship is so fundamental in the European legal order that Scots cannot simply lose the rights stemming from it. Two variations of this argument have been brought forward. The first one is that citizens of an independent Scotland retain EU citizenship regardless of what happens with Scotland’s EU membership and regardless of whether they are also entitled to keep UK nationality. This is problematic because EU citizenship is not an independent concept, it is derived from citizenship of a member state. Taking this problem into account, an even more radical proposal suggests that in order to ensure that EU citizenship rights would not be lost, Scotland automatically stays in the EU. Professor Tierney has rightly called this argument: “simply not tenable”. The idea of a fundamental nature of EU citizenship comes from the CJEU case law dealing with situations that crucially differ from Scotland in law and fact. The Scottish situation is indeed unprecedented. If an independent Scotland does not become an EU member state, EU citizenship simply could not be derived from Scottish nationality. In other words, EU citizenship would be lost. Yet, even this conclusion requires some qualifications.

A similar problem, albeit not in the EU context, has been addressed by the European Court of Human Rights (ECtHR) in the 2012 case of Kuric v. Slovenia. The case was concerned with residency rights of those aliens who had acquired the right of residency prior to Slovenia’s independence, but afterwards no longer possessed the qualifying nationality to be entitled for residency. The ECtHR reasoned: “[A]n alien lawfully residing in a country may wish to continue living in that country without necessarily acquiring its citizenship.”Following the logic in Kuric, once you have legally established permanent residency, you keep the right of residence, even if the legal status of either your home or your host state changes and, as a result of this change, your new citizenship status alone would no longer give you a right to residence. What matters is that you had the right at the moment of the change of the territorial status. It is notable that the Court established that non-citizen residents enjoy this guarantee under Article 8 ECHR (the right to private and family life) in their own right; it does not depend on, e.g., a family relationship with a citizen of the host state. The ECtHR’s reasoning in Kuric v. Slovenia is broad enough that it should also cover the Scottish situation. It means that even if Scotland leaves the EU on becoming independent, nationals of EU member states will be allowed to retain residency in Scotland and Scottish nationals will be allowed to retain residency in EU member states. However, this would no longer be a benefit of EU citizenship. Rather, the ECHR would extend protection to previously-exercised free movement rights stemming from EU citizenship. This effect of the ECHR would only freeze the already-acquired rights, it would not give the right to start free movement anew.

By becoming independent, Scotland also exits the EU, unless negotiated otherwise. Even EU citizenship will be lost if negotiations on EU membership fail and Scotland does not join the EU at the moment of independence. In this case, the ECHR would extend its protection and the affected individuals would not lose their already-acquired residency rights.

Scottish Independence Insta-Symposium: ‘Negotiated Independence’–Scottish Independence and a New Path to Statehood?

by Stephen Tierney

[Stephen Tierney is a Professor of Constitutional Theory, University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.]

In the Edinburgh Agreement of 2012 the United Kingdom Government committed itself to respect the outcome of the Scottish independence referendum. This suggests that, in the event of a Yes vote, the transition to independence will be relatively straightforward, as will the pathway to Scotland’s international recognition and membership of the United Nations – see here.

How then would Scotland’s move to statehood be characterised under international law? It is extremely unlikely that the UK will be taken to have dissolved. The international community is generally ill-disposed towards state dissolution. Despite the loss by Pakistan of over half its population in the secession of Bangladesh it continued to be recognised. More recently the Republic of Sudan survived the loss of the significant territory and population of South Sudan. Certainly Scotland constitutes a significant area (almost one third) of the United Kingdom’s land mass, but it contains less than 10 per cent of the population. The territories of England, Wales and Northern Ireland would all still be contained within the United Kingdom and the UK would retain its principal governmental institutions. These factors suggest a strong presumption in favour of the UK’s continuation.

There are also political considerations. The significance of the UK as a member of the EU, NATO and the Security Council of the United Nations would all be important factors in encouraging others to view it as the continuing State. By analogy, the fact that Russia could continue as a permanent member of the Security Council, thereby avoiding the need to revisit how membership of that body is constituted, was without doubt a significant factor in the international community treating Russia as the USSR’s continuation.

Therefore, Scotland would I think clearly be taken to have seceded from the UK (taking secession to be ‘the effort of a group or section of a State to withdraw itself from the political and constitutional authority of that State, with a view to achieving statehood for a new territorial unit on the international plane’. Supreme Court of Canada, Reference re Secession of Quebec, [1998] 2 S.C.R. 217, para 83.). But all the same, the label secession doesn’t seem to fit very well. We tend to think of secession as a unilateral act, denounced as illegal by the remainder state. It is notable that in light of the Edinburgh Agreement, Crawford and Boyle seem to characterize the process almost as a sui generis situation, what they term ‘negotiated independence’. Certainly the consensual negotiation process which would likely follow a Yes vote would surely have a significant bearing in how Scotland would be treated by the international community.

Let me turn then to issues of recognition and succession. Recognition is itself a complex and contested area of international law. There is no institution authorised to determine definitively the legitimacy of claims to recognition as a new State. Indeed, the generally held view is that recognition is a uniquely political act, operating largely if not entirely at the discretion of States. Certainly Scotland would seem to fit the minimalist Montevideo Convention criteria for statehood as well as the criteria for recognition advanced by the  European Communities Guidelines on the Recognition of New States issued in 1991: for example, respect for the rule of law, democracy and minority rights. Notably the Supreme Court of Canada in the Secession Reference referred to the domestic legality of the secessionist act as another possible condition for recognition. If so, then again the UK’s acceptance of Scotland’s independence in the event of a Yes vote and the likelihood of negotiations between the two governments to this end would surely greatly assist an independent Scotland in the search for early international recognition.

How then would Scotland succeed to the rights and responsibilities that currently apply to the United Kingdom? Unlike the situation with state recognition, state succession has been the subject of considerable attention by the International Law Commission of the United Nations – see here and here. Despite this work the area is still subject to considerable confusion and disagreement. It seems certain that an independent Scotland would assume responsibility for the international relations of the territory of Scotland under international law but that does not mean that it would succeed automatically to all of the UK’s rights and responsibilities, to treaties, and in particular to membership of international organisations. For the avoidance of doubt it would probably make sense for an independent Scotland to accede to major multilateral treaties. At the same time, and assuming the continuation model, the UK State would continue to function as before, be recognised as identical to the State as it existed prior to the secession, would continue to enjoy the same rights and owe the same obligations, and retain UK membership of international organisations.

Scottish succession to membership of international organisations is an intense political issue. Regardless of the disagreement surrounding the meaning of Article 34 of the 1978 Convention, we need to treat this as a separate issue from succession to treaty obligations. The same Convention (Art. 4) is clear that succession to constituent instruments of an international organization is: ‘without prejudice to the rules concerning acquisition of membership and without prejudice to any other relevant rules of the organization.’ In other words, international organisations control their own membership and any special rules they set for membership supersede principles of general international law.

I will discuss only the United Nations here. It seems highly likely that the UN will treat the UK as the continuing State and that an independent Scotland would, as a new State, be required to apply for membership. For precedents see India/Pakistan; Malaysia/Singapore; Pakistan/Bangladesh; Serbia/Montenegro; Sudan/South Sudan. Other new States such as the Czech Republic, Slovakia and Eritrea have also had to apply for membership as did the former republics of the SRFY, including the Federal Republic of Yugoslavia.

Although Scotland would be required to apply for membership under Article 4 of the Charter, there do not seem to be any significant obstacles. The conditions for admission are that the candidate territory be a State; be peace-loving; accept the obligations of the Charter; be able to carry out its Charter obligations and be willing to do so. Without going into details it seems clear Scotland would satisfy each of these criteria. Of course, if the United Kingdom were to object to Scottish independence, then Scotland could find it difficult to obtain the required level of support within the General Assembly for admission, and as a continuing permanent member of the UN Security Council the UK could also attempt to use its veto to prevent a recommendation that Scotland be admitted. Each of these scenarios seems highly unlikely. Since we might reasonably anticipate negotiations between the UK and Scottish Governments leading to agreed terms for Scottish independence, and since an independent Scotland would most probably be considered an important ally by the UK, it is realistic to assume UK support for Scotland’s UN membership application.

Another big issue is Scotland’s membership of the EU discussed here and here.

Guest Post: U.N. to negotiate a multilateral legal framework for sovereign debt restructuring

by Yanying Li

[Yanying Li is a Ph.D researcher on a legal framework for State insolvency at Leiden University, the Netherlands.]

Following Julian’s post of Argentina’s attempt to sue the United States in the International Court of Justice, I write to share with you the latest (exciting) development in the world of sovereign debt restructuring!

On September 9, 2014, the United Nations General Assembly adopted a resolution entitled “Towards the establishment of a multilateral legal framework for sovereign debt restructuring processes” (document A/68/L.57/Rev.1), with 124 votes in favour, 11 votes against (including the United States) and 41 abstentions. The draft resolution was prepared by Bolivia on behalf of the Group of 77 and China. The last two paragraphs of the resolution provide as follows:

5. Decides to elaborate and adopt through a process of intergovernmental negotiations, as a matter of priority during its sixty-ninth session, a multilateral legal framework for sovereign debt restructuring processes with a view, inter alia, to increasing the efficiency, stability and predictability of the international financial system and achieving sustained, inclusive and equitable economic growth and sustainable development, in accordance with national circumstances and priorities;

6. Also decides to define the modalities for the intergovernmental negotiations and the adoption of the text of the multilateral legal framework at the main part of its sixty-ninth session, before the end of 2014.

According to the General Assembly’s press release, the U.S. delegate stressed at the meeting “that she could not support a statutory mechanism for sovereign debt restructuring as such a mechanism was likely to create economic uncertainty.”  Moreover, she expressed the view that “[i]n the past, market-oriented approaches had been preferred and work was ongoing in the International Monetary Fund (IMF) and elsewhere.” In response to that, the Minister for Foreign Affairs of Argentina stated that “[s]overeign debt held development back and the establishment of a better system could improve global economic security.” The Minister continued that “[t]he clear majority agreed it was time to establish a legal framework for restructuring that respected creditors while allowing debtors to emerge from debt safely. The profits currently made by vulture funds were scandalous and were funnelled into campaigning and lobbying to prevent changes to the situation.”

Needless to say, this is a big step forward in terms of the development of international law on sovereign debt restructuring. (more…)

Guest post: A Response to Kevin Heller on the Nature of Self-Defense

by Michael W. Lewis

[Michael W. Lewis is a Professor of Law at Ohio Northern University where he teaches International Law and the Law of War.] 

Kevin was right that my Just Security post misstated the legal standard for self-defense by stating that Syria could rightfully treat US attacks on ISIS on Syrian soil as aggression if the US had established that it was acting in self-defense.  As he said, such a use of force in self-defense cures any sovereignty violation that the United States might have committed.  This is, of course, how it works in theory.  Reality is somewhat different.

In practice, any state relying on the “unable or unwilling” standard (as the United States did in Pakistan to support the bin Laden raid) will have no way of knowing whether the target state will see things the same way.  By definition a state relying on the “unable or unwilling” standard lacks permission from the host/target state to use force on its territory.  This is why I said that the US would act at its own peril in Syria.  Any state taking such action will do so at its own peril because the host/target state might believe itself to be justified in using force to repel perceived aggression.   That is why the US used its most advanced and stealthiest helicopters for the bin Laden raid because they anticipated that Pakistan might react to an unannounced incursion with force.

Further, in most incidents of anticipatory self-defense (which is what any strike relying on the “unable or unwilling” standard is likely to be based upon) the host/target state claimed that the use of force on its territory was illegal and in many cases did exercise what it maintained were its sovereign rights to respond to the incursion with force.  To use the 1967 War as an example, Israel claimed that its first strike against the Egyptian Air Force was an exercise of self-defense because Egyptian, Syrian, Jordanian and Iraqi troops were massing on its borders and Egypt had closed the Straits of Tiran to Israeli shipping.  IF Israel’s claim of self-defense was valid this would cure its sovereignty violations, and the Egyptian anti-aircraft batteries would be prohibited from firing on the Israeli planes as they bombed the Egyptian airfields.  Even if theoretically international law contained such a prohibition, would any state in Egypt’s position honor it?  The answer is self-evidently, no.

The reality is that any states relying on the “unable or unwilling” standard to support a claim of self-defense will do so while anticipating and preparing for armed resistance from the host/target state.  And host/target states which have not granted permission for others to use force on their territory will assert a right to defend their sovereignty by treating such uses of force as aggression, and by responding with force if they so choose.   The host/target state’s response, though theoretically unlawful, is very likely to occur and is something that any state relying upon the “unable or unwilling” standard will both anticipate and factor in to its decision to use force.