Archive for
March, 2014

HILJ Online Symposium: Anthea Roberts Responds to Martins Paparinskis

by Anthea Roberts

[Anthea Roberts is an Associate Professor at the London School of Economics and Political Science and a Professor of Law at Columbia Law School.]

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

I want to thank Opinio Juris for hosting this symposium and Martins Paparinskis for taking the time to comment on this article. I highly respect Paparinskis’ work in the field, so I am grateful for his substantive engagement. I have two responses to his post.

1. Why is it important to develop hybrid theories?

As I have argued previously, investment treaty arbitration can be understood through many different paradigms, including traditional public international law, international commercial arbitration, public law, human rights law and trade law. A number of scholars, including Douglas and Paparinskis in two articles, have likewise sought to show that (1) the investment treaty system does not fit neatly into any one mold and (2) the application of different molds often leads to radically different solutions to concrete problems.

For instance, in Analogies and Other Regimes of International Law, Paparinskis recognizes that “investment law partly borrows and partly diverges from pre-existing regimes of international law” so that an interpreter is “required to determine the degree of similarity and difference so as to elaborate the ordinary meaning of both particular terms and broader structures.” Moreover, he continues, “the interpreter may plausibly rely on different approaches, with importantly different implications for the meaning and operation of particular elements of investment law.” Continue Reading…

Whale Wars Day of Judgment: ICJ Rules Against Japan

by Julian Ku

Here is the ICJ’s decision in “Whaling in the Antarctic” (Australia v. Japan, New Zealand intervening).  Here is the Registry’s summary. The vote was unanimous on jurisdiction, and then 12-4 on the rest in Australia’s favor with judges Owada, Abraham, Bennouna, Yusuf dissenting.  There was one aspect of the decision that went in favor of Japan (13-3) but that aspect of the decision shouldn’t affect the overall outcome significantly.

I won’t pretend to have digested this judgment in any rigorous way. I will note that the judgment calls on Japan to “revoke any extant authorization, permit or licence granted in relation to JARPA II, and refrain from granting any further permits in pursuance of that programme.”  Japan’s implementation (or non-implementation) of this remedy will be worth watching going forward.

HILJ Online Symposium: On the Love of Hybrids and Technicalities

by Martins Paparinskis

[Martins Paparinskis, DPhil (Oxon), is a Lecturer in Law at the University College London.]

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

I am grateful to the UCL LLM class of International Law of Foreign Investment for clarifying my thinking on some of these matters.

A natural reaction to such an elegant and erudite article is to offer unqualified praise to its author. While not easily, this reaction should be resisted, as likely to lead to an uninspiring symposium contribution. Therefore, while fully acknowledging the great merit of the argument, I will focus instead on three points where I find the article less than entirely persuasive: (1) the analytical perspective of hybrid theory; (2) the application of law of State responsibility in investment arbitration, as per Italy v Cuba; and (3) the operation of inter-State investment arbitration, as per Ecuador v US. (It is only fair to say that there are very few points on which I actually disagree with Anthea Roberts, therefore I will be mostly clutching at exaggerated straw-mannish arguments.)

I. Depoliticisation, fictions, hybrids, and banks of fog

I will start with a trite, but hopefully not an entirely irrelevant observation. Contemporary international lawyers, unlike the lawyers of previous generations, are in possession of a reasonably complete set of rules and vocabulary on sources and responsibility in international law, which should not easily be thought to be inadequate for articulating and addressing our concerns. The different concepts and perspectives that are sometimes introduced into the legal arguments instead may be helpful, but they can also be superfluous or misleading. In investment arbitration, one example of what I have in mind is ‘depoliticisation’: a concept that (at its best) means everything for everybody, with little independent analytical value, but at its worst may be significantly misleading, erroneously suggesting with significant persuasive force that certain positive rules have or have not been created, or certain legal solutions would or would not fit the existing regime (I have contributed my two pennies here, and it seems to me that Roberts would agree, see pp 11-6). Another example, also referred to in the article (pp 32-3, 38-9), is ‘fiction’ (as ‘the fiction of diplomatic protection’). It may be that I am missing something here, but (even after rereading the leading article on the issue by Annemarieke Vermeer-Künzli) it is not obvious to me that the dutiful citations to ancient writers and cases add much to the most basic of propositions: States can create primary obligations and secondary rules of admissibility with any content whatsoever, that is precisely what they have done with (respectively) rules addressing treatment of their nationals and diplomatic protection, and there is little more to it. Continue Reading…

HILJ Online Symposium: Volumes 54(2) & 55(1)

by Harvard International Law Journal

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

The HILJ Online Symposium is a week-long discussion by scholars and practitioners on selected print articles from the Harvard International Law Journal. The Symposium takes place on the Opinio Juris website once or twice a year and features responses by scholars and practitioners selected by the Journal and sur-responses by the original authors.

The schedule for HILJ Online Symposium: Volumes 54(2) & 55(1) is as follows*

If you are interested in writing a response in future HILJ Online Symposiums, please contact iljonline [at] mail [dot] law [dot] harvard [dot] edu. For more information about the Harvard International Law Journal, please visit

*The PDF files for Volume 55 Issue 1 currently available on the HILJ website are not final versions and are still undergoing processing by the publisher. Most of the changes will be cosmetic and will not affect the substance of the articles.

Weekly News Wrap: Monday, March 31, 2014

by Jessica Dorsey

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




Middle East



  • As Julian has been covering, the International Court of Justice is about to rule on whether Japan has the right to hunt whales in the Antarctic (Australia v. Japan), in an emotive case activists say is make-or-break for the giant mammal’s future. For those of you around now (10:00 a.m. Hague time), the streaming video can be found here.
  • This year’s UN climate negotiations kicked off again last week in Bonn, Germany.
  • For those of you following armed groups or non-international armed conflict, the blog Armed Groups in International Law has posted its latest legal roundup.

Game On! Philippines Files (4000 page) Memorial in China UNCLOS Arbitration

by Julian Ku

Just in time for the odd Sunday filing deadline, the government of the Philippines announced that it had submitted its memorial in its arbitration with China under UNCLOS.

Ignoring a possible backlash from China, the Philippine government transmitted the document, called a “memorial” in international arbitration parlance, on Sunday to the Netherlands-based Permanent Court of Arbitration where a five-member tribunal operating under the United Nations Convention on the Law of the Sea will hear Manila’s complaint.

“Today, the Philippines submitted its memorial to the arbitral tribunal that is hearing the case its brought against the People’s Republic of China under the United Nations Convention on the Law of the Sea,” Foreign Affairs Secretary Albert del Rosario told a news conference.

“With firm conviction, the ultimate purpose of our memorial is our national interest.”

Manila declined to release a copy of the memorial as it has yet to be reviewed by the court.

But Del Rosario said the Philippine “memorial” consists of “ten volumes with maps,” “nearly 4,000 pages” and will fortify the Philippine case which seeks to declare China’s exaggerated claim illegal. A hard copy will be forwarded to the tribunal on Monday.

I hope and trust that at least volume I of the memorial (containing the 270-pages of actual legal argument and analysis) is released publicly soon.  I do think the additional 3700-plus pages of annexes is overkill in a case where the other side is highly unlikely to bother answering.  Still, it will be an interesting public statement of the Philippines’ best legal arguments.  I have grown increasingly skeptical of this Philippines argument, both from a legal and a strategic standpoint.  But I would like to see their arguments.

How to Get Yourself Convicted of Terrorism

by Kevin Jon Heller

Just follow the lead of Henry Okah, a Nigerian national recently convicted in South Africa (under universal jurisdiction) of terrorism-related offences in the Niger delta. Here are the key paragraphs from the trial court’s decision:

[28] The correctness of copies of 3 journals kept by the accused in his own handwriting was admitted. In these journals the accused made notes in from January to September 2010 of names, military clothing, equipment and hardware. For example, he writes:

“Battle jackets… boots… boats, rounds… walkies…engines… balaklavas… water bottles… tee shirts, caps, belts, camo(flage) shorts… TNT… backpacks… binoculars nightvision… badges… bulletproof vests… tents… VHF radios … generators… rechargeable lamps… fuel… ordering through [another] the construction of a gunboat with protector plates for the gunmen… rifle slings… the contact numbers of Military Surplus Stores CC… compasses… BMG assault weapons… RPG …SAM …grenade launchers… mortars… landmines… anti-tank missiles… shotguns… handguns… notes on military tactics inter alia the use of explosives, weaponry and sabotage… and notes on counter insurgency.. names of his co-militants like Tompolo, Stoneface, Boyloaf, Moses, Chima, Raphael, VIP, Stanley…”

[29] Also admitted is the fact that an email address and account was registered with Yahoo with a login name “nigdelunrest” in the name of “Mr. Jomo Gbomo.”

I hear iamalqaeda [at] gmail [dot] com and loyaltalibansoldier [at] mac [dot] com are still available. Any takers?

Hat-Tip: Chris Gevers, University of KwaZulu-Natal, who blogs at War and Law.

Events and Announcements: March 30, 2014

by Jessica Dorsey


  • The Cardozo School of Law is hosting a panel on Privacy, Security, and Secrecy after Snowden on April 2, 2014 – 6:00 p.m. to 7:30 p.m., moderated by our own Deborah Pearlstein. From the website: Edward Snowden’s recent disclosures about the NSA’s surveillance activities have raised important national security and civil liberty questions: How effective is the NSA’s surveillance? What are its costs and benefits? Should individuals care if the government stores metadata even if they think they have nothing to hide? What role should courts play in potentially constraining the NSA’s surveillance activities? Who might have standing to raise constitutional challenges to the NSA’s activities? Come hear a fantastic panel of national security, cybersecurity, and privacy law experts discuss these important questions about the future of our democracy. Seating is limited for this event. RSVP to floersheimercenter [at] gmail [dot] com.
  • The 2014 World Investment Forum is scheduled to take place from 13 to 16 October 2014 in the Palais des Nations, Geneva, Switzerland. The provisional program has been released. The list of participants is also available, and it includes UN Secretary General Ban Ki-moon. The website is here and you can register here.


  • The world’s first comprehensive training course on international weapons law will take place at the Geneva Academy of International Humanitarian Law 4-29 August 2014. The aim of the course is to instil participants with a detailed understanding of international weapons law: police use of force, use of weapons as a means or method of warfare, disarmament, and small arms control. Application deadlines are 15 May 2014 for applicants requiring visas to enter Switzerland and 30 June 2014 for applicants who do not require visas. Costs are 1,500 CHF per module or 5,000 CHF for all four modules. More information and the application can be found here.
  • A summer school on Transitional Justice, Conflict and Human Rights will take place in Geneva from 7-11 July 2014, hosted by The Antonio Cassese Initiative for Justice, Peace and Humanity and the Geneva Academy of International Humanitarian Law and Human Rights. The application deadline is 29 May 2014 and the tuition fees are 1,500 CHF.
  • The program for the upcoming ASIL/ILA meeting (7-12 April) in Washington, D.C., with the theme of The Effectiveness of International Law is now available online.

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

Whale Wars: Is This The End?

by Julian Ku

On Monday, the International Court of Justice will announce its long-awaited judgment in Whaling in the Antarctic (Australia v. Japan). The judgment (scheduled for 10 a.m. Hague time) comes almost four years after Australia first filed its application way back in May 2010 (here is one of many prior posts where I complained about the length of time this judgment has taken).

This case will be the first time (I believe) that Japan has participated in an ICJ proceeding as a respondent and facing a binding judgment.  Both Japan and Australia had no shortage of legal talent on their teams in this case.  Australia is claiming that Japan is violating its obligations under the International Convention for the Regulation of Whaling by using the cover of “scientific research” to actually conduct commercial whaling.  Japan disagrees, and my impression is that this will end up being more of a factual than legal determination by the ICJ here, but I haven’t been following the legal arguments very closely.

In any event, it will also be interesting to see how and if Japan complies with the ICJ’s ruling if it loses.  I find it hard to imagine that the Japanese government will immediately comply, but it is hard to imagine Japan simply ignoring the judgment either.  Since there is evidence the commercial viability of whaling in Japan is collapsing anyway, perhaps this is the excuse the Japanese government needs to end its whaling programs? In any event, if Japan wants to leave open international adjudication as a mechanism for resolving disputes with Korea or China, it needs to be careful in how it reacts to any adverse ruling here.

Weekend Roundup: March 22-28, 2014

by An Hertogen

This week on Opinio Juris, Kevin accused the ICC of fiddling while Libya burns, and relayed news in the Libyan press that Al-Senussi’s and Gaddafi’s trial will start mid-April. He also analysed whether Luis Moreno-Ocampo’s possible representation of LRA victims at the ICC would amount to a conflict of interest.

Roger followed up on his earlier post about using trade remedies to enforce arbitration awards to argue that these remedies are WTO compliant.

Kristen discussed sanctions against Russia and Julian asked whether the US’ spying on Huawei violates international law.

Finally, Jessica wrapped up the news, I listed the events and announcements, and Chris closed of the week with some laughs courtesy of the Internationally Wrongful Memes tumblr.

Have a nice weekend!

Welcome to the Blogosphere “Internationally Wrongful Memes” (!?)

by Chris Borgen

A tumblr of international law humor. No, not “International law is a joke.” Jokes about international law. Seriously.

Could Moreno-Ocampo Represent LRA Victims at the ICC?

by Kevin Jon Heller

John Louth at OUP passes along the latest potential twist in Moreno-Ocampo’s career path:

The former prosecutor of the International Criminal Court (ICC), Mr Luis Moreno Ocampo, has offered to represent the victims of Barlonyo Massacre in the court.Barlonyo village in Agweng Sub-county, Lira District is where more than 400 people were massacred by suspected Lord’s Resistance Army rebels on February 21, 2004. A total of 301 people are buried at the memorial site in a mass grave.

However, more people are believed to have been killed in the attack as 11,000 people were in the camp at the time. “I have something to offer you, I want to be your lawyer,” Mr Ocampo told the survivors who gathered at Barlonyo to welcome him on Friday.

He then asked those in the crowd who lost relatives in Barlonyo massacre to raise their hands and all did. He then offered to represent them in court. Mr Ocampo said initially, it was thought only 200 were killed in Barlonyo but now he knows more people were killed.

“We can document that. The killing, abduction and the looting and we can present this to the ICC. We can request to expand the arrest warrant, the number of victims and the number of crimes and document well what happened here,” he said.

“We can present this to the ICC we can request to expand the arrest warrant we can expand the number of victims and number of crimes.” Mr Ocampo was invited to Lango region by Children of Peace, an NGO supporting the vulnerable and victims of the Barlonyo in Lira District

I have no idea whether Moreno-Ocampo actually intends to represent Barlonyo victims at the ICC, but it’s worth thinking about some of the potential ethical issues that such representation would involve. Like all counsel who are involved with the Court, Moreno-Ocampo would be subject to the Code of Professional Conduct for Counsel. The most relevant provision is Art. 12, “Impediments to representation”:

1. Counsel shall not represent a client in a case:

(a) If the case is the same as or substantially related to another case in which counsel or his or her associates represents or formerly represented another client and the interests of the client are incompatible with the interests of the former client, unless the client and the former client consent after consultation; or

(b) In which counsel was involved or was privy to confidential information as a staff member of the Court relating to the case in which counsel seeks to appear. The lifting of this impediment may, however, at counsel’s request, be ordered by the Court if deemed justified in the interests of justice. Counsel shall still be bound by the duties of confidentiality stemming from his or her former position as a staff member of the Court.

I don’t think Art. 12(1)(a) would apply, because the OTP doesn’t have “clients” in the sense of private counsel — especially given that the victims of crimes have their own counsel, making clear that they are not represented by the OTP. But it would be interesting to see the OTP’s position, because it could at least plausibly argue that the provision would require Moreno-Ocampo to get its permission to represent the Barlonyo victims. There is no question that the Barlonyo case is “substantially related” to Moreno-Ocampo’s previous work on the LRA cases; after all, the OTP pursued those cases on his watch and Moreno-Ocampo was responsible for opening the Uganda investigation in the first place. And although the interests of the OTP and the victims often align, that is certainly not necessarily the case — see, e.g., the Lubanga controversy over sexual violence. So I could see Bensouda worrying that Moreno-Ocampo might pursue a strategy for the Barlonyo victims that was inconsistent with his previous work on the LRA cases.

Which leads to Art. 12(1)(b), the confidentiality provision. That provision could easily be fatal to Moreno-Ocampo’s potential representation of the Barlonyo victims, even if the OTP didn’t oppose it. No former member of the OTP could have had greater access to confidential information than Moreno-Ocampo; after all, he was the Prosecutor for eight years. Could he represent the victims without in any way revealing or relying on confidential information he had access to while he was the Prosecutor? I’m willing to give Moreno-Ocampo the benefit of the doubt that he would take his confidentiality obligation seriously, but I’m skeptical that he — or anyone in a similar position — could maintain the mental “Chinese wall” necessary to avoid information bleed. So I could very easily see the Court deciding that it would not be in the “interests of justice” — or in the interests of the victims themselves — to permit Moreno-Ocamo to represent the Barlonyo victims given his previous role in the Court.

I have no problem with Moreno-Ocampo using his clout and visibility to promote the interests of the Barlonyo victims. But I’m not sure whether he should actually represent them at the ICC. In my view, it would be difficult, if not impossible, for Moreno-Ocampo to navigate the exceptionally complicated confidentiality issues that would be involved in working on behalf of victims in a situation he was once responsible for investigating. We’ll see what happens.

Did the U.S. Infiltration of Chinese Company Huawei Violate International Law?

by Julian Ku

Just in time for Michelle Obama’s speech in Beijing extolling the benefits of free speech and a President Obama/President Xi summit, the NY Times published an article detailing how the U.S National Security Agency infiltrated the systems of Chinese telecom infrastructure giant Huawei.  According to documents the Times obtained from the Edward Snowden leak, the NSA “obtained information about the workings of the giant routers and complex digital switches that Huawei boasts connect a third of the world’s population, and monitored communications of the company’s top executives.”

From a legal perspective, there is no doubt that this is a violation of Chinese laws and an example of how the U.S. government is doing what it is alleging the Chinese government is doing to U.S. companies. There also seems little doubt that this action is clearly legal under U.S. laws, as the U.S. government has broad and largely unchecked authority to conduct surveillance of foreign nationals in foreign countries.  But is the action illegal under any international laws?

I am doubtful that such snooping could violate any international right to privacy, even if such a right existed.  The ICCPR might provide such a right, but it may or may not apply extraterritorially, and even if it did, it probably doesn’t restrict this kind of activity.

This essay in the Global Times, a hawkish Chinese-state-affiliated newspaper, suggests that such activity could also constitute an attack for the purposes of the law of war.  The author, a U.S.-based writer, argues that “launching attacks under another nation’s flag has long been seen as illegal under both codified law and international custom. In such a case, Chinese nationals would face financial and possibly physical risk, especially if US involvement remained undetected.”

I think this would be a stretch under the laws of war. Is snooping around in Huawei’s servers an “act of violence” within the meaning of the Geneva Convention? I don’t think walking into Huawei’s offices and ruffling through their papers is an act of violence. Taking down their servers, or planting viruses to disable those servers or related activities might be an act of violence, but even that seems a bit of  stretch under current international laws.

So the U.S. may have spied, but it cannot be said to have “attacked” China, in its reported Huawei infiltration.  As a matter of international law, the reported actions appear to be legal, even if they were unwise or hypocritical.

Al-Senussi, Gaddafi Show Trial to Begin Next Month

by Kevin Jon Heller

According to Lebanon’s Daily Star, Libya intends to begin the trial on April 14, just a few weeks from now:

Seif al-Islam Kadhafi, Saadi Kadhafi and former spy chief Abdullah Senussi are among more than 30 officials from the ousted regime who are to stand trial on charges ranging from murder to embezzlement.

Former premiers Al-Baghdadi al-Mahmudi and Bouzid Dorda are also among those going on trial from April 14, Seddik al-Sour, spokesman for the state prosecutor’s office, told a news conference.

Charges against Kadhafi’s sons and aides include murder, kidnapping, complicity in incitement to rape, plunder, sabotage, embezzlement of public funds and acts harmful to national unity.

Saadi Kadhafi, who was extradited from Mali earlier this month, is to stand trial in the same case, said Sour.

His older brother Seif al-Islam, Kadhafi’s former heir apparent, is being held by rebels in the western city of Zintan who have refused to transfer him to Tripoli for the trial.

Sour said he could stand trial via video conference from his detention cell in Zintan.

There is still no evidence that either al-Senussi or Gaddafi have ever had access to a lawyer, despite Libya’s constant assertions to the ICC that the government is doing everything in its power to arrange representation for them. Can’t let a little thing like Libyan law get in the way of a good show trial. And, of course, the nice thing about a show trial is that there really isn’t any need for the defendants to prepare a defence.

It’s also difficult to avoid noting the irony of Sour’s suggestion that Gaddafi could be tried via video link — exactly what the Assembly of States Parties and the Trial Chamber (though not yet the Appeals Chamber) have said is fine in the Kenya cases. To be fair, Libya would use videoconferencing without Gaddafi’s consent, whereas the ASP’s backdoor amendment of the Rome Statute was designed to placate Kenyatta and Ruto. But once the ASP and TC proved willing to dilute the clear presence requirement in Art. 63(1) of the Rome Statute, it was only a matter of time before states began taking liberties with presence, as well.

Using Trade Remedies to Enforce Arbitration Awards: The WTO-Compliance Question

by Roger Alford

Simon Lester has a thoughtful response to my earlier post about using trade remedies to enforce arbitration awards. He questions whether conditioning GSP benefits on compliance with arbitration awards is consistent with WTO obligations. My answer is essentially yes. Because there are so many issues at play, I thought it best to respond in a new post rather than respond in the comment section to his post.

First, there is no question that granting preferential treatment for developing countries does not violate MFN rules. That was settled with the so-called Enabling Clause. The real question is whether a particular GSP-scheme is consistent with the Enabling Clause. The Enabling Clause provides that Member States may accord differential and more favorable treatment to developing countries, provided (a) such treatment is non-discriminatory as between similarly-situated developing countries; and (b) is designed to promote the development, financial and trade needs of the developing countries.

As to the first requirement, the Enabling Clause requires GSP benefits to be conferred in a non-discriminatory manner among similarly-situated developing countries. This, according to EC-Tariff Preferences, requires that the relevant preference be made available to all beneficiaries that share that need. (EC-Tariff Preferences, para. 180). That requirement appears to be met. The U.S. obligation on compliance with arbitration awards is applied to all GSP beneficiaries alike. Argentina might have a discrimination argument if other beneficiary countries refuse to honor arbitration awards but still enjoy GSP benefits. But I am not aware of any such examples, and if anything, it appears that other developing countries like Ecuador will soon face a similar fate as Argentina.

Second, the GSP conditional benefit must be imposed to meet particular development, financial or trade needs. In other words, if you are granted benefits with strings attached, those strings must be for the benefit of the developing country. Simon Lester questions whether conditional tariff benefits can ever meet that requirement. I disagree. If you look at the various GSP schemes, the list of such needs are legion, addressing issues such as drug-trafficking, communism, terrorism, human rights, environmental protection, expropriation, contractual compliance, intellectual property protections, etc.

At one level one might view many of these concerns as primarily about protecting developed countries’ interests more than promoting the developing country needs. But, of course, these goals are mutually-beneficial. Goals such as promoting the rule of law, creating a safe and stable legal climate, encouraging foreign investment, good governance, reducing crime and corruption, guaranteeing human rights, and encouraging environmental sustainability are all legitimate objectives that developed countries legitimately can ask developing countries to pursue.


Russian Roulette: Firing Blanks in the Sanctions Against Russia?

by Kristen Boon

As widely reported in the press last week, President Obama announced sanctions against Russian and Ukrainian officials.   On Thursday, March 20, the “blacklist” was expanded to 2 banks and 20 officials, as detailed in this press release from the US Treasury.     Separately, the EU imposed sanctions on 21 individuals, including Russian military commanders.

The U.S. goals, President Obama said, are “to isolate Russia for its actions, and to reassure our allies and partners” of American support.    Under the U.S. Treasury’s ruling, assets belonging to designated individuals within U.S. jurisdiction will be frozen, and business between U.S. entities and the Russian parties in question will be halted.     In retaliation, Russia imposed sanctions against nine officials, including Republican Senator John McCain and Speaker of the House John Boehner.

According to President Obama, the goal of US sanctions is:  “[To] send a strong message to the Russian government that there are consequences for their actions that violate the sovereignty and territorial integrity of Ukraine, including their actions supporting the illegal referendum for Crimean separation .”

I have been studying multilateral sanctions for much of the past year, and the theory behind targeted sanctions in that context is that in order to change behavior, there must be an incentive to comply.  As the sanctions expert Mikael Eriksson writes, “The typical goal of such measures is to influence decision-makers by engaging or isolating them through targeted financial restrictions, and travel bans and other measures . . . targeting involves different tactics, but in principal, pressure is exercised by a combination of punitive measures, incentives and conditionality to entice or coerce designated targets to change their behavior.”

Moreover, a 2007 report of the Security Council’s Working Group on Sanctions states: “Experience has shown that sanctions work best as a means of persuasion, not punishment: sanctions should include carrots along with sticks—not only threats, but inducements to elicit compliance. The target must understand what actions it is expected to take. And partial or full compliance should be met by reciprocal steps from the Council, such as easing or lifting sanctions as appropriate.”  (UN Security Council, Letter Dated 12 December 2007 from the Permanent Representative of Greece to the United Nations Addressed to the President of the Security Council (December 13, 2007) UN Doc. S/2007/734, p. 3)

The only available sanctions against Russia are so called “unilateral” sanctions, by states like the US and organizations like the EU.  Although the United Nations has a well-developed practice of targeting, and in fact has exclusively applied targeted sanctions since 1994, Russia’s unsurprising veto of a draft resolution on the Ukraine on Saturday March 15 foreclosed the opportunity to apply multilateral sanctions against the Ukraine or Russia.   There is consequently no way to apply global sanctions against Russia.  Nonetheless, there may be some useful lessons.

So far, the US sanctions are clearly designed to act as a “stick:” to indicate further consequences will follow any new incursions into the Ukraine, and to signal displeasure with supporting the referendum for Crimean separation.  But do the US or the EU believe at this point that Russia will pull out of Crimea? It seems unlikely and if that is true, these are punitive measures to the extent they are focussed on the referendum and attempted annexation.

The US has an even bigger stick in the wings:  more sanctions against sectors of the Russian economy.    President Obama signed an executive order described here that would allow the administration to apply future sanctions against industries including financial services, metals and mining, energy, defense and related material, and engineering.    These could have a huge impact on the Russian economy, as the New York Times explains, and would likely affect the economy of other countries in Europe as well.

I have seen nothing so far to indicate whether an incentives based strategy is at play here.  I suspect this is partly a question of timing –  it is too soon to entice compliance.  After all, their effects are only starting to be felt.  But for unilateral sanctions by the US and EU sanctions to be effective, it may be necessary to consider carrots.   One of the most tried and tested incentives is to offer the lifting of sanctions.  When a domestic polity backs a particular approach, this is easiest.  Sometimes other techniques are employed as well, whether to include people at the bargaining table who would otherwise be barred, or to offer economic incentives.  Neither of these techniques seems likely in the present situation because the individuals targeted are not outsiders, but part of Putin’s cohort.

As a result, these sanctions may be around for some time.  Presently, it seems unlikely that the Russian ‘targets’ will comply of their own accord.  Moreover, the surge in Putin’s popularity after the attempt to annex Crimea, suggests that there is little domestic opposition to recent developments.

The ICC Fiddles While Libya Burns

by Kevin Jon Heller

For quite some time I zealously followed all of the various filings in the Libya cases — by Libya, al-Senussi and Gaddafi, the Registry, the OPCV, everyone. I also regularly blogged about those filings. But I haven’t lately, as consistent readers will know. The reason?

The ICC judges seem to have lost all interest in actually making decisions.

The record is quite shocking. Take the admissibility challenges. The Pre-Trial Chamber rejected Libya’s admissibility challenge to the case against Saif Gaddafi on 31 May 2013, nearly ten months ago. And it granted Libya’s admissibility challenge to the case against al-Senussi on 11 October 2013, more than five months ago. Both sides immediately appealed the decisions, yet the Appeals Chamber has done nothing since. I’ve been hearing rumours lately that the Appeals Chamber is planning on resolving both appeals at the same time. That may reduce the judges’ workload, but it doesn’t justify letting the appeals languish well beyond what is reasonable.

But it’s not just the Appeals Chamber that is failing to do its job. Pre-Trial Chamber I deserves even harsher criticism. Not surprisingly, Gaddafi’s defence team has been trying desperately to convince the Pre-Trial Chamber to issue a finding of non-compliance against Libya regarding its failure to surrender Gaddafi to the Court. (Or to at least try to surrender him, given that he is still being held in Zintan.) The defence filed its its first request for a finding of non-compliance on 7 May 2013, and it has filed numerous similar requests since. Yet the Pre-Trial Chamber has still not issued a decision on any of the defence’s requests.

So what has Pre-Trial Chamber I been doing in the Libya cases? Not much. It has issued a grand total of three decisions in the past five months, none of which have been substantive. Here they are:

13/02/2014 ICC-01/11-01/11-511 Pre-Trial Chamber I Decision designating a single judge
11/12/2013 ICC-01/11-01/11-490 Pre-Trial Chamber I Decision on the “Request for Leave to Appeal against the ‘Decision on the Request for an order for the commencement of the pre-confirmation phase by the Defence of Saif Al-Islam Gaddafi'”
13/11/2013 ICC-01/11-01/11-477 Pre-Trial Chamber I Decision on the “Defence application on behalf of Mr. Abdullah Al Senussi for leave to appeal against the ‘Decision on the request of the Defence of Abdullah Al-Senussi to make a finding of non-cooperation by the Islamic Republic of Mauritania and refer

Although it’s bad enough that the Court’s judges feel no urgency to address al-Senussi’s situation, their willingness to turn a blind eye to Gaddafi’s detention is simply unconscionable. As his defence team notes in its most recent — and certain to be equally ignored — request for a finding of non-compliance, Gaddafi has now been held in solitary confinement without access to a lawyer (at least one not subsequently imprisoned unlawfully by the Libyan government) for more than two years. (27 months, to be precise.) That situation has been condemned not only by the United Nations Working Group on Arbitrary Detention, but also by the African Court of Human Rights, which determined more than a year ago with regard to Gaddafi’s detention that “there exists a situation of extreme gravity and urgency, as well as a risk of irreparable harm to the Detainee.”

Yet still the judges do nothing — fiddling while Libya burns.

Weekly News Wrap: Monday, March 24, 2014

by Jessica Dorsey

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




Middle East



Events and Announcements: March 23, 2014

by An Hertogen

Call for Papers

  • The ASIL International Economic Law Interest Group is calling for paper and panel proposals for its 2014 Biennial Research Conference, to be held at the University of Denver’s Sturm School of Law, on November 13-15, 2014. The theme of the conference is “Reassessing International Economic Law & Development: New Challenges for Law & Policy”. They strongly encourage scholars, practitioners, and advanced graduate students to submit proposals to present original research on the theme topic, or on other areas of international economic law. You do not have to be an ASIL or Interest Group member to participate. The full call for papers can be downloaded here. Please contact IEcLIG Co-Chairs Jason Yackee & Elizabeth Trujillo with any questions.
  • The European Society of International Law (ESIL) Interest Group on Business and Human Rights is calling for papers in view of its 3rd Research Workshop at the 10th ESIL Anniversary Conference, to be held in Vienna, Austria, on September 3, 2014. Following the overarching theme of the Research Forum, “International Law and …: Boundaries of International Law and Bridges to Other Fields and Disciplines”, they invite papers addressing the interplay between international law and other fields of law or other disciplines from the perspective of business and human rights. Please submit a 500 words abstract proposal via email to Damiano de Felice by May 31, 2014. Successful applicants will be informed by June 15, 2014, and will need to submit final papers by August 15, 2014. In addition to the abstract, the following information must be provided on the submission: The author’s name and affiliation; The author’s CV, including a list of relevant publications; The author’s contact details; Whether the author is an ESIL member. For the sake of blind peer-reviewing, candidates are requested to include their name and affiliation in the email, but NOT in the abstract itself. Selection criteria are: originality of the work, links to the panel theme, and geographical representation of the speakers. Only one abstract per author will be considered. At the moment of presentation, papers should be unpublished and in an advanced stage of completion. Publication in a book or a special issue of a journal will be considered. In order to participate in the Interest Group panel, speakers must be members of ESIL. The membership can be formalised once abstracts have been accepted.


  • The Geneva Academy of International Humanitarian Law and Human Rights invites you to a discussion, on March 28, of how human rights law regulates use, procurement, and transfer of weapons. A new book Weapons Under International Human Rights Law, a new publication by Cambridge University Press will be launched during the event. More information is here.

Summer Schools

  • From 29-30 April 2014, the British Institute of International and Comparative Law (BIICL) will be running a two-day programme called ‘Public International Law in Practice’. Click on the links for more information and for registration.
  • The Academy of European Law at the European University Institute (EUI) in Florence, Italy, holds two summer courses each year, on Human Rights Law and the Law of the European Union. The 2014 Human Rights Law course (June 16-27) comprises a General Course on ‘21st Century Human Rights’ by Harold Hongju Koh (Sterling Professor of International Law, Yale Law School) and a series of specialized courses on the topic of ‘Freedom of Religion, Secularism and Human Rights’. There will also be two distinguished lectures, by Bruno Simma (Judge at the Iran-United States Claims Tribunal; former Judge at the International Court of Justice) and Joseph H.H. Weiler (President of the European University Institute). The 2014 Law of the European Union course  (June 30-July 11)  comprises a General Course on ‘The Internal Market as a Legal Concept’ by Stephen Weatherill (Jacques Delors Professor of European Law, Oxford University) and a series of specialized courses on the topic of ‘EU Legal Acts: Challenges and Transformations’. The Summer School will also include a distinguished lecture by Marta Cartabia, an EUI alumna now Judge at the Italian Constitutional Court and Professor of Constitutional Law, Bicocca University in Milan. The deadline for applications is Thursday April 10, 2014. For further information, visit the Academy’s website.
  • The ICC Summer School at the Irish Centre for Human Rights, NUI Galway will take place from June 16-20. More information is 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.

Weekend Roundup: March 15-21, 2014

by An Hertogen

This week on Opinio Juris, we continued last week‘s YLS Sale Symposium with a post by Thomas Gammeltoft-Hansen describing Sale’s legacy as a game of cat and mouse between law and politics, a post by David Martin on the realms of policy and law in refugee protection. In a two part post (1, 2), Guy Goodwin-Gill looked at state practice preceding Sale and argued that the case was not the watershed moment it is seen to be. T. Alexander Aleinikoff discussed a way forward to ensure that the rights of refugees are adequately protected. Harold Koh closed off the symposium with his reflections on Sale’s legacy.

Also continuing from last week was our Ukraine Insta-Symposium. Boris Mamlyuk argued for a better empirical understanding of the facts on the ground to assess the legality of intervention in Ukraine. As the events in Crimea unfolded, questions of recognition and annexation came into the spotlight with a post by Anna Dolidze on the non-recognition of Crimea, one by Chris analyzing the legality of recognition of a secessionist entity, and one by Greg Fox on the Russian-Crimea treaty.

In other posts, Duncan tried to read the tea leaves in the US Senate confirmation hearings for the new head of US Cyber Command. Julian reported from a hearing of the Privacy and Civil Liberties Oversight Board on the legality of overseas electronic surveillance and predicted that international law will receive short shrift in the Board’s final report. Andrés Guzmán Escobari rebutted an earlier post by Julian and argued that Bolivia’s ICJ case against Chile to obtain access to the Pacific Ocean is reasonably strong. Roger closed off the week with a post on the use of trade remedies to enforce arbitration awards.

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

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

Using Trade Remedies to Enforce Arbitration Awards

by Roger Alford

As I discuss in a recent article published in the Santa Clara Journal of International Law, one of the most significant developments signaling the convergence of trade and arbitration is the use of trade remedies to enforce arbitration awards. This is done primarily when a developed country threatens to remove preferential trade benefits to a developing country if that country does not honor its international arbitration commitments.

The WTO allows (but does not require) developed countries to grant preferential trade benefits to “promote the development, financial and trade needs of developing countries.” Many developed countries—including Australia, Canada, the European Union, and the United States—have established such “Generalized System of Preferences” or GSPs to promote trade with developing countries. The major benefit of GSP schemes is the unilaterally lowering of tariff bowers for products from beneficiary countries without a corresponding reduction in tariffs for the developed country’s products.

The discretionary nature of these schemes means that the trade benefits come with strings attached. In the United States and the European Union, for example, developing countries are subject to performance obligations with respect to matters such as drug trafficking, international terrorism, democracy, human rights, environmental protection, government corruption, unlawful expropriation, the rule of law, and good governance.

The United States imposes a number of conditions on beneficiary countries, including that they recognize and enforce arbitral awards in favor of United States nationals. Any country that wishes to secure beneficiary status under the GSP scheme must satisfy this criterion, and any country that fails to maintain this commitment jeopardizes their beneficiary status. The provision was added to the Trade Act of 1974 because of concerns that it was “contrary to sound U.S. policy to give…any… developing nation the favored treatment contemplated by the present legislation in the face of unwillingness to abide by solemn agreements to recognize as final and binding arbitration awards rendered in disputes between it and American parties.” (120 Cong. Rec. 39831).

The use of trade remedies to enforce arbitration awards is best illustrated by the ongoing dispute over Argentina’s refusal to honor adverse investment awards. On March 26, 2012, the Obama Administration announced that Argentina’s GSP beneficiary designation would be suspended “because it has not acted in good faith in enforcing arbitral awards in favor of United States citizens.” It was the first time in American history the United States denied GSP trade benefits to a developing country for its failure to honor arbitration commitments.


Bolivia´s Reasonably Strong ICJ Case against Chile

by Andrés Guzmán Escobari

[Andrés Guzmán Escobari is a former Bolivian diplomat, a Professor at Universidad del Valle and Universidad de los Andes and an associate researcher for the German Foundation Friedrich-Ebert-Stiftung. The opinions expressed are strictly personal.]

A few days after Bolivia instituted proceedings against Chile before the International Court of Justice, Julian Ku wrote a post here on Opinio Juris entitled “Bolivia´s Ridiculously Weak ICJ Case against Chile”.  His main claim?  “This case looks like a sure loser on admissibility; it looks like it is going to be a major waste of time for the ICJ”.

In this post, I would like to offer a rebuttal to Mr Ku’s comments and to explain why Bolivia’s case is not only not a ‘sure loser’ but is reasonably strong.  The case concerns Bolivia’s request that the Court declare and adjudge that “Chile has the obligation to negotiate with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean” because “Chile has breached the said obligation”. Specifically, for that reason, “Chile must perform the said obligation with good faith, promptly, formally, within a reasonable time and effectively, to grant Bolivia a fully sovereign access to the Pacific Ocean”.

Mr Ku develops two mains arguments to support his opinion: (1) that there is no compulsory ICJ jurisdiction under the Bogota Treaty; and (2) that there is no specific obligation on Chile to negotiate an agreement granting Bolivia an access to the Pacific Ocean because the language of the declarations made by Chilean authorities with the purpose of giving Bolivia back sovereign access to the sea were “non-obligatory”.

Continue Reading…

Guest Post: The Russia-Crimea Treaty

by Gregory H. Fox

[Gregory H. Fox is a Professor of Law and Director of the Program for International Legal Studies at Wayne State University Law School.  I would like to thank my colleague Brad Roth for helpful comments on a draft of this post.]

The latest development in Crimea’s headlong rush out of Ukraine is an agreement, signed on Sunday, March 16, between the Russian Federation and the Crimea. While I have not found a full translation of the agreement from Russian, the full text is available on the Kremlin website (as is President Putin’s extended response to western international legal arguments, which is well worth reading in full).

In rough translation, Article 1 of the treaty provides that the “Republic of Crimea is considered to be adopted in the Russian Federation from the date of signing of this Agreement.”  The incorporation is “based on the free and voluntary will of the peoples of the Crimea.”  Article 2 announces the formation of two new entities, the Republic of Crimea and the “federal city of Sevastopol.”  Article 5 provides that residents of Crimea will become Russian citizens, unless within one month they choose another nationality. Article 6 describes a seven month transition period during which the economic, financial, credit and legal systems in Crimea will be integrated into those of the Russian Federation.”

The agreement has been accurately described as completing the annexation of Crimea.  Territory that thirteen of fifteen Security Council members believe is still part of Ukraine has been transferred to Russian control.  Let me make three quick observations about this agreement.
Continue Reading…

Even More on the Privacy and Civil Liberties Oversight Board Hearing: Why International Law Won’t Matter Much for NSA Spying

by Julian Ku

I was fortunate to participate in a discussion held at a hearing of the Privacy and Civil Liberties Oversight Board today in Washington D.C. I say “participate in a discussion” because it was not like giving testimony to a congressional hearing where the congressman make speeches and ask questions unrelated to your testimony.  Rather, it was closer to a mini-oral argument with five judges asking you questions about difficult legal issues (luckily, there were three other panelists though to field most of the questions).  The members of the PCLOB are all engaged and asked tough questions of me and of my fellow panelists. (I think C-SPAN will have video of our panel posted here)

The written testimony that was submitted (as well as  comments from the general public) can all be found here at the Regulations.Gov website. I want to flag for this blog’s readership the day’s last panel, which focused on international and transnational legal issues related to the NSA’s Section 702  surveillance program.  Three members of that panel (former State Dept. Legal Adviser John Bellinger, Human Rights Watch’s Laura Pitter, and the Max Planck Institute’s Ulrich Sieber) tackled the ICCPR’s applicability to overseas surveillance as well as the applicability of rules of customary international law.  (Video can be viewed here).  For those who don’t have the patience to watch the video or view the transcript, I live-tweeted the panel here).

Let me just add my two cents on the issues in this panel: Based on the questions, I don’t think the majority of the members of the PCLOB are convinced that international law does, or even should, constrain U.S. surveillance under Section 702.  They are also unimpressed with the complaints of foreign governments, most of whom have similar overseas surveillance schemes but with fewer oversight mechanisms.  The only concern that seemed to bother the Board was the fact that U.S. companies selling information technology overseas are being tarred with the NSA label, making it harder for them to compete in foreign markets.  These are just my impressions, mind you, but I wouldn’t be surprised if the final PCLOB report on Section 702 gives short shrift to international law issues.  (By the way, I would expect the opposite in their treatment of the Fourth Amendment, however).

Anyway, something to keep an eye on….

Wondering About the Legality of U.S. Overseas Spying? Tune Into Privacy and Civil Liberties Oversight Board Hearing

by Julian Ku

For those readers who are interested in the legal aspects of the U.S. government’s wide-ranging overseas intelligence gathering program, C-Span 2 will be broadcasting portions of today’s oversight hearing of the Privacy and Civil Liberties Oversight Board.  The PCLOB is a federal watchdog agency charged with reviewing the U.S. government’s intelligence efforts in light of privacy and civil liberties concerns (a preview of witness testimony can be found here).  Lawyers from the key federal agencies (FBI, CIA, NSA), as well as legal scholars and NGOs will be participating.  I will be speaking on the second panel focusing on constitutional and statutory issues related to Section 702 of the FISA Amendments Act of 2008, which creates procedures for limiting the targeting of U.S. citizens overseas’ communications. (Spoiler Alert: I’m pretty OK with the constitutionality of U.S. overseas electronic surveillance).  In the afternoon, friends of the blog like Eric Posner and John Bellinger will be discussing international aspects of these programs. Should be interesting.


From Intervention to Recognition: Russia, Crimea, and Arguments over Recognizing Secessionist Entities

by Chris Borgen

In a matter of days, we have gone from talking about the illegality of Russia’s military intervention, to issues of the Crimean referendum, to Russia’s recognition of Crimea as a new state. While these events have moved quite rapidly, they are not really surprising: arguments over attempted secessions often shift from the question of the legality of the secession itself (about which, as discussed in a previous post, international law is largely silent; although it is generally understood that secession is not a right), to the question of the legality of the recognition of the secession. That is a subtly different question.

By recognizing Crimea, Russia is attempting to shift the discussion off of the issue of military intervention and also, by its recognition, “create facts on the ground” that will at least help Russia;s own negotiating position, if not lay the groundwork for Russia annexing Crimea (by having a Crimean “sovereign state” ask to join Russia). To assess how Russia is doing this, this post will consider the law of recognition and the following post will consider how Russia has used arguments about recognition in relation to Kosovo and South Ossetia in comparison to what it is doing today regarding Crimea.

For this post, the underlying question is whether Russia’s recognition of Crimea was possibly an illegal act.

First of all, what is “recognition?” There are actually different types of recognition: recognition of statehood, recognition of a government, and recognition of a belligerency, recognition of territorial change. For the moment, we are talking about whether Crimea can and should be recognized as a state. In the days to come, we may be talking about issues of recognizing territorial change, if Russia attempts to annex Crimea.

States tend to view the decision to recognize or not recognize an entity as a state as a political decision, albeit one that exists within an international legal framework. That legal framework is in part the rules of statehood. The standard view in international law is that a state must have (a) a permanent population; (b) a defined territory; (c) a government; and (d) the capacity to enter relations with other states.

While entities that claim statehood often try to do a quick “check the box” summary of these criteria and claim they have all the requirements of statehood, the actual assessment is meant to be more rigorous than a soundbite. For Crimea, the problems include that its territory is completely contested—this isn’t an issue of where the border between Crimea and Ukraine should be, this is a dispute over the whole of the territory of Crimea. Moreover, whether Crimea has a functional government or the capacity to enter into international relations are both very much in doubt: Crimea as a supposedly independent entity would not exist but for Russian military intervention. The control of Crimean territory seems to be more under the command of the Russian President than the Crimean authorities. If you don’t believe me, ask yourself what would happen if the Crimean “president” said he wanted all roads to Ukraine reopened and the Russian barriers taken down. Would his command be decisive? Or President Putin’s?

These criteria are meant to reflect the nuts and bolts of sovereignty: an ability to stand on your own feet, make decisions for yourself, and undertake international relations. Crimea seems less like a sovereign than a hothouse flower: alive due to extraordinary intervention, surviving due to conditions carefully controlled by others, and with little real say in its destiny.

What does the law of recognition have to say about such a case, when it is doubtful that Crimea even meets the basic requirements of statehood? Can Russia just recognize it anyway?…         (Continue Reading)

Reading Tea Leaves in Confirmation Hearings for U.S. Cyber Commander

by Duncan Hollis

Last week, the U.S. Senate held confirmation hearings for Vice-Admiral Michael S. Rogers to replace General Keith Alexander as head of U.S. Cyber Command.  It’s interesting to see how both men received almost identical written questions in their respective 2014 and 2010 hearings.  More interesting perhaps are the similarities and variations in their responses with respect to how international law operates in cyberspace.

For example, in both 2010 and 2014, the Senate asked the nominee the same question: “Does the Defense Department have a definition for what constitutes use of force in cyberspace, and will that definition be the same for [U.S.] activities in cyberspace and those of other nations?

Here was Alexander’s written response:

Article 2(4) of the U.N. Charter provides that states shall refrain from the threat or use of force against the territorial integrity or political independence of any State. DOD operations are conducted consistent with international law principles in regard to what is a threat or use of force in terms of hostile intent and hostile act, as reflected in the Standing Rules of Engagement/Standing Rules for the Use of Force (SROE/SRUF). There is no international consensus on a precise definition of a use of force, in or out of cyberspace. Consequently, individual nations may assert different definitions, and may apply different thresholds for what constitutes a use of force. Thus, whether in the cyber or any other domain, there is always potential disagreement among nations concerning what may amount to a threat or use of force.

Remainder of answer provided in the classified supplement.

And this is what Vice Admiral Rogers provided to the Committee last week:

DoD has a set of criteria that it uses to assess cyberspace events. As individual events may vary greatly from each other, each event will be assessed on a case-by-case basis. While the criteria we use to assess events are classified for operational security purposes, generally speaking, DoD analyzes whether the proximate consequences of a cyberspace event are similar to those produced by kinetic weapons.

As a matter of law, DoD believes that what constitutes a use of force in cyberspace is the same for all nations, and that our activities in cyberspace would be governed by Article 2(4) of the U.N. Charter the same way that other nations would be. With that said, there is no international consensus on the precise definition of a use of force, in or out of cyberspace. Thus, it is likely that other nations will assert and apply different definitions and thresholds for what constitutes a use a force in cyberspace, and will continue to do so for the foreseeable future.

Similarly, both hearings had the Senate asking “Could U.S. Cyber Command lawfully employ offensive cyber weapons against computers located abroad that have been determined to be sources of an attack on the United States or U.S. deployed forces if we do not know who is responsible for the attack (i.e., a foreign  government or non-state actors)?

General Alexander’s response:

The establishment of U.S. Cyber Command, in and of itself, does not change the lawful employment of military force for self-defense. In this case, if the “attack” met the criteria approved by the President in our Standing Rules of Engagement, the military would exercise its obligation of self-defense. Operationally, it is difficult to develop an effective response when we do not know who is responsible for an “attack”; however, the circumstances may be such that at least some level of mitigating action can be taken even when we are not certain who is responsible. Regardless whether we know who is responsible, international law requires that our use of force in self-defense be proportional and discriminate. Neither proportionality nor discrimination requires that we know who is responsible before we take defensive action.

Vice-Admiral Rogers got the same question plus an additional add-on sentence, asking ”Without confident “attribution,” under international law, would the Defense Department have the authority to “fire back” without first asking the host government to deal with the attack?”  His written response?

International law does not require that a nation know who is responsible for conducting an armed attack before using capabilities to defend themselves from that attack. With that said, from both an operational and policy perspective, it is difficult to develop an effective response without a degree of confidence in attribution. Likely, we would take mitigating actions, which we felt were necessary and proportionate, to defend the nation from such an attack. I’d note that in such an event, U.S. Cyber Command would be employing cyber capabilities defensively, in the context of self-defense.

For me, I was struck by (a) the new emphasis on the ‘effects test’ that’s been bantered about for years in terms of identifying what constitutes a use of force subject to Article 2(4); (b) the lessened attention to ‘classified responses’, which peppered Alexander’s original written responses and that are now (thanks to Edward Snowden I assume) largely absent from Rogers’ answers; and (c) the softening of the language regarding the U.S. willingness to respond in self-defense where attribution is a problem.

What do readers think?  Is this all one, harmonious, consistent U.S. policy?  Or, are there shifts in these responses that bear watching?  Anyone interested in comparing the remainder of the two testimonies can do so by seeing what Alexander wrote here versus Rogers’ more recent written responses here.

Ukraine Insta-Symposium: Potential Non-recognition of Crimea

by Anna Dolidze

[ Dr. Anna Dolidze is an Assistant Professor in the Faculty of Law, the University of Western Ontario.]

On Sunday the inhabitants of the Ukrainian Autonomous Republic of Crimea voted in a referendum on whether Crimea should become part of the Russian Federation or regain the status under the 1992 Constitution as part of Ukraine. A March 11, 2014 Declaration of Independence by the Parliament of the Autonomous Republic of Crimea preceded the referendum. The Declaration specifically referenced the International Court of Justice’s decision in relation to the status of Kosovo. According to the preliminary results published by the Crimean authorities about 95% of voters voted in favor of the union with Russia, while the overall turnout was 81.%.

While the results were celebrated in Simferopol, Russia’s President Vladimir Putin signed a decree recognizing Crimea’s independence. However, this post argues that the Crimean Republic might become subject to the doctrine of non-recognition. The initial evidence suggests that it might follow the footsteps of other self- declared independent entities, including Abkhazia, South Ossetia, and Turkish Republic of North Cyprus (TRNC) that have declared independence, yet failed to attain statehood partly due to the application of the doctrine.

As Thomas Grant explains in his book The Recognition of States, Law and Practice in Debate and Evolution recognition has served international society as a device by which to respond to changes in the world public order and the emergence of new states. In the process of the disintegration of the Union of the Soviet Socialist Republics (USSR) and the Federal Republic of Yugoslavia (FRY) the principles on recognition acquired renewed importance. Professor John Dugard points out that the recognition by other states remains important even to those who share prevalence of declaratory doctrine of recognition, which maintains that a political community that meets the requirements of statehood automatically qualifies as a “State” and that recognition by other states simply acknowledges “as a fact something which has hitherto been uncertain.” For example, although the Supreme Court of Canada, discussing the legality of possible secession by Quebec from Canada, adopted the declaratory theory of recognition, it emphasized “the viability of a would-be state in the international community depends, as a practical matter, upon recognition by other states.” Although recognition of states is primarily a bi-lateral affair, as Professor John Cerone notes, collective recognition or non-recognition by an overwhelming majority of states may impact the question of the existence of a state by influencing the application and appreciation of the Montevideo criteria on statehood.The admission to the United Nations and the European Union (the European Communities previously) has been acknowledged as a form of collective recognition that significantly influences the statehood status.

The recognition of Kosovo is an interesting example in this regard. It might be argued that the recognition of Kosovo bears the traits of collective recognition, but in fact it remains to be an individualized affair among states….(Continue Reading)

Ukraine Insta-Symposium: Intervention and Colonialism as Responses to Alleged Fascism

by Boris Mamlyuk

[Boris N. Mamlyuk, Ph.D., is an Assistant Professor of Law at the University of Memphis School of Law.]

Julian Ku makes an interesting observation regarding Russia’s fact-based arguments in support of Crimea, versus what most commentators see as a weak legal case for self-determination.  Over the past week, I’ve tried to offer several mapping exercises in order to explore the expanding range of international law arguments and potential violations.  The purpose was by no means to describe a “Russian point of view,” or to criticize U.S. international law commentators, of which I am one.  Rather, the attempt was to assume in good faith the factual assertions proposed by Russia in support of Crimean independence, and then to explore the ramifications of the current standoff from the perspective of international law. 

Russia’s mounting argument for humanitarian intervention beyond Crimea, in Eastern and Southern regions of Ukraine, needs to be scrutinized carefully.  Thus far, Russia seems to be merely reserving the right to intervene, and to my knowledge, the Russian government has not articulated a standard for humanitarian intervention in Ukraine, or a ‘red line’ that would trigger an R2P intervention.  Short of that, we can consider the most recent standard for humanitarian intervention, formulated in the UK’s guidance document on the proposed intervention in Syria.  According to this guidance document, humanitarian intervention is permissible where:

(i) there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;

(ii) it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and

(iii) the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian need and must be strictly limited in time and scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose).  (emphasis added).

These elements fall far short of the R2P ‘three pillar’ approach, which includes an express responsibility to prevent humanitarian catastrophe.  The current situation in Ukraine, while fluid and dangerous, does not seem to have risen to the level of extreme humanitarian distress required for intervention.  What Russia seems to be doing, then, is positioning itself for an intervention in the event of further escalation of violence… (Continue Reading)

YLS Sale Symposium: Sale’s Legacies

by Harold Hongju Koh

[Harold Hongju Koh is Sterling Professor of International Law at Yale Law School. He served as Legal Adviser, U.S. Department of State, from 2009-13 and Counsel of Record for plaintiffs in Sale v. Haitian Centers Council, from 1992-93.]

Why, two decades later, does the Sale v. Haitian Centers Council litigation still spark such interest? This year alone, symposia about the litigation have transpired at law schools at Yale, Columbia, Howard, Brooklyn, and in London.  The case has been dissected in first-year Procedure Classes at Yale, Columbia, Touro, University of Connecticut, and New York Law Schools, just to name a few, using as texts Brandt Goldstein’s absorbing nonfiction novel Storming the Court, and his Storming the Court: A Documentary Companion, compiled with co-authors Professors Rodger Citron and Molly Beutz Land.

These texts tell the tale of a complex bifurcated lawsuit brought by a class of “screened-in” refugees and their lawyers against the U.S. Government, challenging first, the long-term detention of Haitians on Guantanamo, and second, starting in May, 1993, their direct return to Haiti following interdiction on the high seas.  Remarkably, the two halves of this frenetic case—which rocketed to the Supreme Court eight times in just fifteen months—ended on the same day in June 1993.  The Direct Return half of the case concluded with an 8-1 defeat for the Haitians at the U.S. Supreme Court, which ruled that the nonrefoulement obligations of  8 U.S.C. sec. 1253(h) and Art. 33 of the Refugee Convention do not apply on high seas. But on that same day, in the Illegal Detention wing of the lawsuit, some 200 HIV+ Haitian refugees detained for months on Guantanamo were released following trial, pursuant to a permanent injunction granted by Judge Sterling Johnson, Jr. of the Eastern District of New York. “Although the [U.S. government] defendants euphemistically refer to its Guantánamo operation as a ‘humanitarian camp,’” Judge Johnson wrote, “the facts disclose that it is nothing more than an H.I.V. prison camp presenting potential public health risks to the Haitians held there.”

This Opinio Juris Symposium just concluded reveals that, even decades after Sale ended, its story keeps repeating.  In particular, as the excellent contributions to this symposium have illustrated, Sale leaves behind three competing legacies. The first is the continuing governmental search for “national security black holes” through techniques of high seas interdiction, offshore detention camps, and theories that human rights law can be displaced by extraterritoriality and the law of armed conflict.  But this first legacy has been countered by a second legacy– constantly evolving strategies of transnational legal process and litigation– and a third– rapidly adjusting changes in human rights advocacy and clinical education. Together, the second and third legacies have largely thwarted continuing governmental efforts to construct enduring legal black holes.

In Sale, Justice John Paul Stevens found for eight Justices that the non-return (nonrefoulement) obligations of Immigration and Nationality Act (INA) and Article 33 of the 1951 Refugee Convention did not apply on the high seas.  As I chronicled shortly after the decision, that conclusion was deeply flawed methodologically: it ignored both the plain text and object and purpose of the treaty and statute. Moreover, the majority ignored contradictory negotiating and legislative history underlying both laws; overly deferred to executive power; and exalted the so-called statutory “presumption against extraterritoriality,” a trend the current Court strengthened in its recent Kiobel decision. Justice Blackmun’s compelling dissent skewered the majority, underscoring not only that the text and meaning of the INA and Refugee Convention were simple and crystalline—“Vulnerable refugees shall not be returned”—but also that that object and purpose would be entirely thwarted if those legal obligations did not apply extraterritoriality to protect fleeing refugees.

Looking back, Justice Stevens’ decision is most striking for its frank and admirable acknowledgement of the “moral weight “ of the Haitians’ claim. Justice Stevens found his own ruling deeply in tension with the spirit of the treaty, but curiously, instead of reading that text consistent with that object and purpose, Justice Stevens found instead that, although “the human crisis is compelling, there is no solution to be found in a judicial remedy.” Internal Court memos unearthed after Sale show that Justice Scalia had objected to the Court’s mere mention of “the moral weight” of the Haitians’ claim, saying “For my taste, that comes too close to acknowledging that it is morally wrong to return these refugees to Haiti, which I do not believe.”  To which Justice Stevens responded,  “I think it is undeniable that it has some moral weight and I think it would be unfortunate for us to imply that we think it may have none” (emphasis in the original).

Continue Reading…

Weekly News Wrap: Monday, March 17, 2014

by Jessica Dorsey

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



  • China warned the Philippines to abandon a disputed shoal in the South China Sea after Manila said it planned to challenge a Chinese naval blockade of the area by sending supplies to its troops stationed there.
  • The US and Japan made some progress on resolving a deadlock over tariffs on farm and industrial exports which is dragging on a wider Pacific trade deal, a senior Japanese official said on Wednesday.


Middle East

  • A suicide car bomb attack has killed at least four people in a Hezbollah-dominated area of the Bekaa Valley in Lebanon, near the border with Syria.
  • Israel is to allow the resumption of diesel deliveries into Gaza, a day after the territory’s sole power plant stopped working due to a lack of fuel, officials have said.
  • Palestinian fighters in the Gaza Strip have fired more rockets at Israeli cities in a third day of a cross-border flare-up.
  • The United Arab Emirates summoned Iraq’s ambassador to protest against his prime minister’s accusations that its ally Saudi Arabia was funding terrorism, state news agency WAM reported, while Bahrain called the comments “irresponsible.”


YLS Sale Symposium: International Protection Challenges Occasioned by Maritime Movement of Asylum-Seekers

by T. Alexander Aleinikoff

[T. Alexander Aleinikoff is the UN Deputy High Commissioner for Refugees.]

Irregular maritime movement raises complex issues of “mixed migration” flows, life-risking sea crossings, varying state policies, well-ingrained smuggling and trafficking networks, and emerging regional processes.  Movement of migrants, refugees and asylum-seekers by sea is a world-wide phenomenon, with Afghans, Sri Lankans, Rohingyas, and Bangladeshis, among others, travelling by boat in the Indian Ocean and Andaman Sea; more than 60,000 persons a year (mostly Ethiopians) arriving in Yemen; sub-Saharan Africans and now increasingly Syrians and Palestinians from Syria seeking to cross the Mediterranean from North Africa to Europe; and several thousand Cuban and Haitian migrants interdicted each year in the Caribbean.

The central goal of UNHCR is that states adopt policies and practices that are protection-sensitive.  A protection-sensitive approach would, at a minimum, embrace the following core principles:

  • The norm of non-refoulement, which prevents forcible return of a person in need of protection, applies wherever a state has de jure or de facto jurisdiction  (that is, whether the individual is encountered on the high seas or within the territorial water of a state).
  • Effective application of the non-refoulement principle requires fair and timely procedures for assessing whether an individual in an irregular situation is in need of international protection.
  • During the time that refugee claims are being examined, persons must not be subject to arbitrary detention or inhumane or degrading treatment.
  • Persons recognized as in need of international protection should ultimately be afforded a solution (such as third country resettlement or lawful presence in the state in which their claim is assessed).

Rescue at Sea

The vessels used by irregular migrants are often unseaworthy, and search and rescue efforts are frequently required in order to save lives.  “Rescue at sea” standards are embodied in number of international instruments, but important gaps remains—particularly related to (1) where rescued migrants should be disembarked, and (2) how best to ensure the processing of asylum claims and the provision of solutions.  A UNHCR-hosted experts meeting on Refugees and Asylum-seekers in Distress at Sea (held in Djibouti in 2011) supported a Model Framework for Cooperation for rescue at sea operations.  The aims of the Framework are to reduce loss of life, ensure predictability regarding disembarkation, preserve the principle of non-refoulement, and foster burden-sharing. The expert group also supported the establishment of mobile protection teams that can respond in rescue at sea situations, including by providing assistance with the reception and processing of rescued persons.

In November of 2013, UNHCR launched the Central Mediterranean Sea Initiative (CMSI), which proposes a comprehensive strategy for the region that would strengthen search and rescue by E.U. authorities and private ships, identify safe places for disembarkation, and provide screening of migrants to assess protection needs and other grounds of vulnerability. As to burden-sharing, the CMSI recognizes that the location for assessment of refugee claims need not be the state of disembarkation and recommends the establishment of a joint processing pilot for persons rescued in international waters and the resettlement of persons found in need of protection. The Initiative also proposes measures to reduce irregular migration, including mass communication efforts in countries of origin highlighting the dangerousness of irregular movement at sea, the establishment of robust asylum and protection processes in North Africa, and the enhancement of legal migration opportunities.


Rescue at sea is a humanitarian response to migrants in danger on the high seas. Interdiction is a law enforcement activity undertaken to prevent irregular migration that seeks to avoid state migration rules and processes. The reasons for irregular migration are numerous: migrants for whom legal channels of migration are not available may seek to join family members or to obtain work; or persons involved in criminal activity may try to avoid detection by law enforcement officers. Of central concern to UNHCR are individuals who undertake irregular movement in order to flee from persecution, conflict or other situations of violence and seek to access international protection guaranteed by international law.

UNHCR recognizes that states have legitimate interests in law enforcement actions against smugglers and traffickers and migrants seeking entry outside of lawful avenues.  But we urge states to ensure that such efforts comply with international conventions and norms relating to refugees and human rights.  UNHCR’s Executive Committee has declared that “[i]nterception measures should not result in asylum-seekers and refugees being denied access to international protection, or result [in non-refoulement].” (Conclusion on Protection Safeguards in Interception Measures (Conclusion 97, 2003).)

Despite this well-recognized norm, we see alleged “tow-backs” of boats in the Mediterranean that result in the loss of life, “push-backs” in the Andaman Sea that seem to be instances of refoulement, and on-board screening and returns in the Caribbean that appear not to fully protect against non-refoulement.

Interdiction and return—without any process—raises obvious protection concerns (and was held in Hirsi Jamaa and Others v. Italy to be a violation of European human rights norms).  Fortunately, it is not generally the rule, and states that intercept migrants at sea generally have policies and practices in place that they assert meet its duty to comply with international protection principles.  Thus, they may (1) screen and/or process intercepted asylum-seekers on the high seas (e.g., ship-board screening by the U.S. Coast Guard); (2) undertake extra-territorial processing (e.g., United States assessments of “screened-in” Cubans in Guantanamo), or (3) transfer interdicted asylum-seekers to other states for processing (the transfer of asylum-seekers by Australian authorities to Papua New Guinea and Nauru is one of several measures undertaken by Australia to deter irregular migration). Continue Reading…

YLS Sale Symposium: Sale’s Legacy and Beyond (Part II)

by Guy Goodwin-Gill

[Guy S. Goodwin-Gill is a Senior Research Fellow, All Souls College, Oxford and Professor of International Refugee Law, University of Oxford.]

Recent EU and ECHR jurisprudence on a range of State activities affecting refugees and asylum seekers has emphasized that fundamental rights are not just about freedom from torture or refoulement, but also about effective remedies.

What comes through in the judgments of the CJEU in N.S. and Puid, for example, is acceptance of the notion that fundamental rights may well require proactive, protective action – in the case of the Dublin system, a duty to assume responsibility wherever transfer may expose the individual to a serious risk of prohibited harm, such as refoulement or inhuman or degrading treatment. The European Court of Human Rights decision in M.S.S. v. Belgium and Greece further supports this proposition, while that in Hirsi v Italy goes still further on the interception issue.

Other courts in other jurisdictions have been no less robust in defence of the displaced, this especially vulnerable group of asylum seekers who require special protection – the UK House of Lords in the Roma Rights case, facing up to a policy and practice clearly discriminatory by reference to race; the UK Supreme Court in EM (Eritrea), recognizing that any real risk of prohibited treatment, not just a systemic failure, was sufficient to require non-removal under Dublin; the European Court of Human Rights in M.S.S. v Belgium and Greece, also on Dublin transfers, but also on knowledge and risk, among others, and on the right to an effective remedy; and again in Hirsi v Italy; and the Australian High Court in Plaintiff M70.

Australia once actively promoted temporary refuge, then turned to mandatory detention as supposedly some sort of deterrent to boat arrivals; when that seemed to have little effect, it tried to emulate some of the interdiction practice. Interestingly till now, and as in the early days of US interdiction, it has expressly recognized its basic obligations towards the intercepted, and its goal, in theory, has been to accommodate non-refoulement, but to deny on-shore processing and even, from time to time, on-shore solutions.

What the M70 decision of the Australian High Court reveals, however, is that international obligations are difficult to wish away onto other States. In its earlier dealings with the remote island nation of Nauru, Australia had clearly been the principal in a ‘principal-agent’ relationship, paying the full costs of detention accommodation of the intercepted, relying on Nauru and distance to keep lawyers and journalists at bay, but impliedly accepting that it remained responsible internationally.

Behind M70, though, there was different thinking. It involved an agreement – intentionally not a binding treaty – to trade asylum seekers: 800 to go to Malaysia, 4000 to be resettled out of Malaysia over four years. The domestic legal background was a provision of the Migration Act which anticipated that the Minister would make a declaration, identifying a State as appropriate for such an arrangement, and as able to provide the requisite level of protection.

The High Court placed this agreement firmly within the context of an effort by Australia to ensure that its international obligations were met; but as a ‘protection exercise’, this meant that, as a matter of domestic law and statutory construction, Australia was obliged to ensure that those transferred enjoyed legal protection of their rights, not just practical protection; what is more, this meant more than just non-refoulement, but the protection also of other, Convention-related rights in the State of intended destination. Continue Reading…

YLS Sale Symposium: The Globalization of High Seas Interdiction–Sale’s Legacy and Beyond

by Guy Goodwin-Gill

[Guy S. Goodwin-Gill is a Senior Research Fellow, All Souls College, Oxford and Professor of International Refugee Law, University of Oxford.]

Before Sale, before Haitian interdiction even, there was ‘piracy’ off the coast of Thailand, tolerated and encouraged locally as a deterrent to landing; there was towing out to sea, even of unseaworthy vessels; there was the blind eye turned to the plight of those in distress; and somewhere in-between was the refusal to allow disembarkation of the rescued – an exercise of legal competence on a matter regulated in the past by practice and expectation, but never written into law.

No, there is nothing new here, and many are the ways by which States have sought to keep others away from their shores, particularly those in search of refuge. And yet despite the many novel forms of interdiction, I do not share many of the premises on which this conference appeared to be based. For example, I do not think that Sale itself has influenced the practice of States in any meaningful way. It may have encouraged elements within States to push the envelope of legality, but looking around at what goes on in the name of ‘migration management’, it’s hard to believe that they need any encouragement.

Nor do I think that courts which clarify the legal limits to permissible State action thereby invite executives just to look for other ways to avoid law and obligation. They do, of course, but that’s part of the tension inherent in societies operating under the rule of law. Nor do I think that the judgment of the Supreme Court in Sale counts for anything juridically significant, other than within the regrettably non-interactive legal system of the United States. Here, the Court ruled for domestic purposes on the construction of the Immigration and Nationality Act. What it said on the meaning of treaty was merely dictum and the Court was not competent –in at least two senses – to rule on international law.

At best, the judgment might constitute an element of State practice, but even here its international relevance can be heavily discounted. The Court failed, among others, to have regard to the binding unilateral statements made by the US when interdiction was first introduced, and the ten years of consistent practice which followed. And as any student of international law will tell you, practice and statements of this nature are highly relevant, particularly when against interest.

UNHCR, moreover, which is responsible for supervising the application of the 1951 Convention/1967 Protocol, protested the judgment at the time and has consistently maintained the position set out in its amicus brief to the Supreme Court (and in earlier interventions with the US authorities). Significantly, no other State party to the treaties has objected to UNHCR’s position, though the forum and the opportunity are readily available, such as the UNHCR Executive Committee, ECOSOC, or the Third Committee of the UN General Assembly. Continue Reading…

Events and Announcements: March 16, 2014

by Jessica Dorsey


  • ALMA has recently published its invitation to the next session of the Joint IHL Forum that will take place on Wednesday, March 26, at the IDC – “Young Researchers Forum
    This is the highlight of a few months process in which four students from four different local academic institutions worked on academic papers under the supervision of designated ALMA members.
  • The Third Annual Conference of the Cambridge Journal of International and Comparative Law (CJICL) registration is now open, and can be accessed here.


  • TDM has just announced its publication of TDM 2 (2014) – The New Frontiers of Cultural Law: Intangible Heritage Disputes. Editors Dr. Valentina Vadi (Lancaster University) and Prof. Hildegard Schneider (Maastricht University) prepared and edited this issue. It follows and complements TDM 5 (2013) – Art and Heritage Disputes in International and Comparative Law. Taken together the two special issues adopt a holistic approach to cultural heritage, considering the dynamic link or dialectical relationship between the tangible and intangible heritage. As intangible heritage is made up of processes and practices-its fate depending on oral transmission and being closely related to its creators and context-it may need ad hoc safeguarding approaches and methodologies. In particular, this special issue aims to explore some examples of intangible heritage related disputes, highlight the main tenets of the Convention for the safeguarding of the Intangible Cultural Heritage, and suggest avenues for ways forward and further research.

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

YLS Sale Symposium: Interdiction of Asylum Seekers–The Realms of Policy and Law in Refugee Protection

by David Martin

[David A. Martin is the Warner-Booker Distinguished Professor of International Law, University of Virginia.]

I start with a high-altitude view of the history and contours of refugee protection, to provide perspective on the current use of interdiction – and also on the contrasting stances taken by the U.S. Supreme Court in Sale v. Haitian Centers Council (509 U.S. 155 (1993)) and the European Court of Human Rights in Hirsi Jamaa v. Italy (Application no. 27765/09, Eur. Ct. H.R. 10 (2012)).

Refugee protection is not, at its core, dependent on fixed or expansive legal obligations of states or other political actors.  Since Biblical times, refugees have been protected, even in the absence of treaty or legal edict.  These were policy decisions by political leaders, influenced by compassion, but also by pragmatic considerations that ranged from assessments of absorptive capacities, food supplies, and the tolerance level of the leader’s subjects or fellow-citizens; through perceived advantages to be gained if the refugees seemed a particularly skilled or enterprising lot; to judgments about whether the exodus would strengthen or weaken the state against its enemies.

Protection that rests on policy is uncertain and unpredictable – by definition not wholly or even principally guided by humanitarian considerations.  But it has nonetheless at many times afforded true shelter to multitudes.  And after 60 years of operation under the major international treaties relevant here, we can hardly say that treaties assure reliable and consistent humanitarian responses either.

Comes now a new generation of tribunals and treaty bodies that seem to believe they can end the modern era’s inconsistency and usher in a virtually pure humanitarian practice of refugee protection.  Their methods include reading selected provisions in refugee and human rights treaties quite expansively, deploying broad notions of a state’s jurisdiction – territorial and otherwise – and projecting onto the relevant treaties a mono-thematic conception of object and purpose, seeing only an objective to provide protection and issuing their interpretations accordingly.

This newly ambitious legal effort, most clearly exemplified in the Hirsi Jamaa decision, certainly is capable of improving protective outcomes for certain asylum-seekers in specific flight situations.  But there are reasons for deep skepticism that this idealistic effort to carpet the entire field with judicially enforced legal prescripts will somehow overcome or crowd out all those benighted considerations of tawdry policy that state leaders tend to take into account.  It may even interfere with efforts to optimize protection within the real-world constraints that government officials must account for.  I offer here four reasons for skepticism.

Original intent and government buy-in. 

First, this mono-thematic focus was not what states agreed to – not in 1951 or 1967, not in the European Convention on Human Rights.  The treaties have a more complex set of objectives.  Humanitarian shelter is one of them, to be sure, enough to motivate setting into law a floor reflecting modest but important commitments, focused on persons already present on the state’s territory – a floor, it must be emphasized, not a whole edifice.  Other important treaty objectives, given only muted expression but still decidedly on the minds of the diplomats creating the treaties, were to preserve the core of national control over migration by foreigners and also to protect against criminal and security threats.  There was no clear template for the mechanisms to be employed toward these ends, but states clearly regarded it as important to keep their protection commitments in balance with the sovereign right to make deliberate decisions about inbound migration.  At each stage governments provided clear signals that they were not writing a “blank cheque” (a frequent assertion in the travaux of the 1951 Convention).  They acknowledged that it would be good to do more, when possible, but they left the “more” in recommendations meant to inform ongoing policy decisions.

The dateline limitation in Article 1 of the 1951 Convention relating to the Status of Refugees may be the clearest indication of this caution (treating as “refugees” only those who fled “as a result of events occurring before 1 January 1951” – hence a largely known and finite population already present in the West European countries leading the drafting effort).  But strong markers of the same attitude also appear in the exclusion from coverage of persons who had committed serious crimes, and especially the broadly worded exception to the nonrefoulement  protection of Article 33 when “there are reasonable grounds for regarding” a person “as a danger to the security of the country” of refuge. Commentary at the time, even pieces written by scholars of strong humanitarian instincts, generally accepted that Article 33 did not include non-rejection at the frontier.

Some have suggested that the 1967 Protocol, which eliminated the dateline, should be seen as global acceptance of a more purely protective stance.   This claim has to downplay the continuing exclusions from treaty coverage of serious criminals and national security threats. But there is an even stronger indication that the UN General Assembly, in adopting the text of the Protocol, was not propounding an absolute bar on interdiction or other barriers to arrival.  That same year the General Assembly adopted a formal Declaration on Territorial Asylum (GA Res. 2312 (XXII), 22 U.N.GAOR Supp. (No. 16), at 81).  Article 3 is widely quoted for its general provision that seems at first to bar “measures such as rejection at the frontier.”  But the very next clause, often omitted by the commentators, states: “Exception may be made to the foregoing principle only for overriding reasons of national security or in order to safeguard the population, as in the case of a mass influx of persons.”  The General Assembly clearly did not consider non-rejection at the frontier an absolute or nonderogable obligation for states. Governments still insisted on keeping in their hands certain tools to meter their obligations or keep them politically manageable, albeit at a higher protective level than in pre-treaty days. The Sale decision essentially recognized this tradeoff at the foundation of the legal obligations in the Protocol.  The Court, like the Convention’s drafters, acknowledged that going further toward protection would be desirable in many circumstances – but that is a task for policy, not treaty obligation (509 U.S. at 188).

The insufficiency of alternatives.

Second, supporters of expansive readings of nonrefoulement sometimes counter that non-entrée policies, which include maritime interdiction but perhaps also strict visa regimes, are not necessary to serve the state’s interests in migration control and in stopping crime, terrorism, or spying.  Instead those aims can be addressed in a far more precise and scientific way through careful application of the governing definition, which requires an asylum seeker to show a “well-founded fear of persecution” on account of five specified grounds, and which also excludes serious criminals and security threats.

This is an attractive claim, and it seems to accept that the treaties embody a more complex set of objects and purposes.  But government officials generally are not reassured that such reliance will sustain the needed balance, because of hard experience with adjudication systems.  In fact we still are not very good at accomplishing timely and accurate asylum decisions, with sufficient checks against fraud, even though intensive effort and millions of dollars have been devoted to improving adjudication since the surge in asylum applications in the 1980s.  Moreover, as government officials see it, the problem is not just insufficient progress in procedures.  The substantive standard also keeps expanding, now reaching far beyond fear of persecution or the five familiar grounds – especially under the ECHR jurisprudence.

Continue Reading…

YLS Sale Symposium: Sale’s Legacy– “Creative Legal Thinking” and Dynamic Interpretation of Refugee Law

by Thomas Gammeltoft-Hansen

[Thomas Gammeltoft-Hansen is Research Director at the Danish Institute for Human Rights and author of Access to Asylum: International refugee law and the globalisation of migration control (CUP, 2011), which won the Idman Award for best monograph in public international law.]

In 1992 President George HW Bush ordered the United States Coast Guard to stop all persons fleeing Haiti in international waters. When a majority of the United States Supreme Court upheld the legality of this interdiction program, it paved the way for more than 65,000 people being returned to Haiti with no assessment of any claims for political asylum. Beyond this, the Sale case could be argued to have two legacies – one political and one legal. US policy and Sale undoubtedly inspired many other countries to adopt similar interdiction schemes and perhaps a more general trend to speculate in circumventing obligations under international refugee law. Yet, Sale also prompted other courts and refugee advocates to pick up the torch, ensuring that international refugee law has developed dynamically in response to new patterns of migration control.

High seas interdiction forms parts of a wider set of deterrence measures to administratively or physically prevent refugees from accessing asylum. From visa controls to biometric scans, migration control is no longer something performed only at the perimeter of a state’s sovereign territory, but rather forms a set of progressive mechanisms to check travellers at every step of their prospective journey. A common trait of many of these policies is that they are designed to carve out exceptions to, circumvent or shift obligations otherwise owed under international law, often through governance measures that could hardly have been foreseen when the 1951 Refugee Convention was drafted. The US interdiction program in the 1990s constitutes a prime example. By geographically shifting migration control to block Haitian refugees on the high seas, it was argued that neither US nor international law applied.

The majority of the Supreme Court in Sale not only upheld the government’s claim, it set off a proliferation of extraterritorial migration control practices. High sea interdiction programmes have since been introduced both in the Mediterranean and the Pacific. Migration control has further become a foreign policy issue, with bilateral and multilateral agreements paving the way for migration control within the territorial waters, airports or border zones of origin or transit states, or the enlisting of third country authorities to perform exit or entry control on behalf of sponsoring states. In parallel, responsibility for migration control has been delegated to corporate actors. From the initial imposition of carrier sanctions spreading through the 1980s, private security companies and other contractors are today increasingly taking on immigration controls both at the border and overseas. These practices all raise complex questions about the reach of international refugee and human rights obligations, attribution of conduct and the division of responsibility for human rights violations. Continue Reading…

Weekend Roundup: March 9-15, 2014

by An Hertogen

We had a busy week on the blog, so if you haven’t been able to keep track of it all, here is a summary of what happened.

We continued the Ukraine Insta-symposium with posts by Remy Jorritsma on the application of IHL to the conflict between Russia and Ukraine and by Sina Etezazian on Russia’s right to protect its citizens in the Crimea and Ukraine’s right to use of force in self-defence. A post by Greg Fox and one by Tali Kolesov Har-Oz and Ori Pomson discussed the limits of government consent to intervention, while Robert McCorquodale discussed Crimean self-determination and the international legal effect of a declaration of independence. Ilya Nuzov provided a transitional justice perspective; and Rhodri Khadri examined if any useful lessons for the Crimean crisis can be drawn from the solution to the Åland Islands. Julian responded to Boris Mamlyuk’s critique on US international law scholars by exploring Russia’s position.

A second symposium this week, introduced here by Tendayi Achiume, Jeffrey Kahn and Itamar Mann, summarized the presentations of last weekend’s symposium at Yale Law School on the rise of maritime migrant interdictions twenty years after the US Supreme Court’s Sale judgment. Ira Kurzban described the events leading up to the Sale judgment and Jocelyn Mccalla discussed the impact of Sale on Haitian immigration and advocacy. In a two part post, Bill Frelick discussed the international and US domestic initiatives to counter Sale‘s implication that the non-refoulement principle does not apply extra-territorially. Azadeh Dastyari put the spotlight on the lesser known use of Guantanamo Bay for the detention of refugees. Maritime migrant interdictions are not a uniquely US phenomenon, as demonstrated by Paul Power’s discussion of Australia’s “Stopping the Boats” policy and Meron Estefanos’ post about the impact of the EU’s refugee policy on Eritrean refugees. Bradley Samuels used the example of non-assistance at sea in the Mediterranean to discuss the increasing reliance on architectural representations of space as evidence in litigation.The symposium will continue next week, so stay tuned!

In other posts, Kristen Boon updated us on the latest developments in the Haiti cholera case, and John Knox, the UN Independent Expert on Human Rights and the Environment, guest posted about the mapping report he presented to the UN Human Rights Council earlier this week. Despite their win, Kevin declared the Katanga conviction a difficult day in the office for the OTP. Kevin also asked us to identify a historical figure in a picture of the ’70s, and was disgusted by a phishing e-mail preying the situation in Syria.

Finally, Jessica compiled the weekly news and I listed events and announcements.

Many thanks to our guest contributors and to all our readers for the lively discussions this week!

YLS Sale Symposium: A Salvage Operation–Refugee Rights Advocacy in the United States after Sale

by Bill Frelick

[Bill Frelick is the director of Human Rights Watch’s Refugee Rights Program. See part one of his post here.]

Since Sale v. Haitian Centers Council judgment in 1993 settled the issue of extraterritorial application of the principle of nonrefoulement in US domestic law, US-based refugee rights advocates after 1993 were left without recourse to US courts. But, writing for the Sale majority, Justice Stevens had said, “The wisdom of the policy choices by Presidents Reagan, Bush, and Clinton is not a matter for our consideration.”

Accordingly, US advocates turned their attention to the policy choices of the executive branch and tried to push the US president to limit US actions, even if he was not required to do so under US law. Secondarily, they targeted the legislative branch, although the US Congress in the mid-90s had taken a restrictionist turn with respect to asylum and immigration. The stark political reality was that there was no prospect of reversing Sale through legislation. Finally, as discussed in a companion essay, US-based advocates worked with UNHCR and international NGO partners to isolate the US interpretation of the nonrefoulement principle in international fora and to limit the damage of the US precedent in other jurisdictions.

This essay will discuss the first two of these three avenues of post-Sale advocacy in which NGOs tried:  (1) to convince the Clinton Administration (and later administrations) as a matter of policy, if not of law, to adhere to international refugee protection principles, and (2) to prevent Congress from taking even more regressive steps and, if possible, to introduce language into legislation that would ameliorate the worst elements of Sale.

Advocacy with the US Executive

First, refugee advocates engaged with the Clinton Administration to convince the president to refrain, as a matter of policy, from availing himself of the Supreme Court’s free pass to refoule maritime asylum seekers. This effort involved direct meetings with Clinton Administration officials, media outreach, and enlisting the support of influential voices. Human rights organizations, including Human Rights Watch/Americas Watch, the National Coalition for Haitian Refugees, Caribbean Rights, the Lawyers Committee for Human Rights, Amnesty International, and Physicians for Human Rights, worked to document human rights abuses of Haitians who had been returned by the United States. Advocates also argued with Clinton Administration figures that the US interdiction practice was likely to be very damaging to refugee rights if widely adopted by other states.

To some extent this advocacy succeeded. The Clinton Administration tested a number of alternatives to direct, summary repatriation of Haitians—short of admitting interdicted Haitians to the United States to pursue asylum claims on US soil. Among these was an in-country refugee processing procedure, modeled to some degree on the Orderly Departure Program that was being used at the same time to bring Vietnamese boat departures to an end. Although NGOs were divided on in-country processing from Haiti, and some were involved in the processing, other advocates, this writer included, sharply criticized in-country processing as deeply flawed based, in part, on rights violations Haitians experienced while waiting in the queue, and rejected it as a rationalization for summary returns (see here).

About a year after Sale, on May 8, 1994, President Clinton announced that his administration would not directly repatriate interdicted Haitians without giving them an opportunity to present refugee claims. In July 1994, the Clinton Administration announced that the US naval base at Guantánamo Bay, Cuba (GTMO) would be used as a safe haven for Haitians, the same day that the UN Security Council agreed to a resolution calling for all necessary measures to restore democracy to Haiti. Within six months, President Bertrand Aristide had been restored to power and most of the Haitians at GTMO returned voluntarily.  Refugee rights advocates, this writer included, were highly critical of the treatment of Haitians (and Cubans) at GTMO, but for all its faults  it was a vast improvement over having US Coast Guard cutters taking interdicted Haitians directly back to Port-au-Prince.

Policies not grounded in law are subject to change according to political circumstance, however. When Aristide was deposed a second time, in February 2004, the new US president, George W. Bush, announced, “I have made it abundantly clear to the Coast Guard that we will turn back any refugee that attempts to reach our shore,” and US policy had swung back to that of the GHW Bush years, and post-Sale his actions were not amenable to legal challenge.

Advocacy with the US Congress

On the second front, with the US Congress in the mid-1990s, there was considerably less sympathy for Haitian refugees than in the White House. The Congress was in the process of enacting the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), legislation that introduced a host of draconian restrictions on the ability of asylum seekers to lodge claims in the United States. This left US advocates to pursue rearguard actions on the margins of IIRAIRA that might provide some relief to asylum seekers interdicted on the high seas. Refugee rights advocates could not stop Congress from introducing expedited removal as part of IIRAIRA, but were able to convince legislators to include in the category of aliens who were to be treated as applicants for admission in INA §235, the new statutory provision for expedited removal, people who had been “brought to the United States after having been interdicted in international or United States waters.”

Refugee advocates reasoned that although expedited removal was a step backward in procedural protections for arriving aliens, it at least would provide some procedure, however truncated and accelerated, that would provide a higher measure of protection than was being provided to asylum seekers interdicted at sea and summarily returned to Haiti.

There have been more ambitious legislative initiatives in the 20 years since Sale to try to counter the damage, but none has been enacted into law. The most comprehensive, the Refugee Protection Act (RPA), championed by Senator Patrick Leahy (D-VT), would amend INA §241(b)(3) by including language that specifically addresses protection for aliens interdicted at sea. The RPA would add reference not only to the principle of nonrefoulement in refugee law, but in human rights law as well and would prohibit the return of people interdicted in international or US waters who express a fear of return until they have had the opportunity to be interviewed by an asylum officer to determine whether they have a well-founded fear of persecution or would be subjected to torture. The RPA also outlines procedures applicable for interdicted asylum seekers and indicates how the US should treat those found to be in need of international protection, saying such people should be given the opportunity to seek protection in another country, which could include the United States.

The earliest iteration of the RPA was introduced in the 106th Congress in 1999-2001 at the end of the Clinton administration. Over the years, the RPA has gained widespread NGO support, including from leading refugee and human rights organizations including Human Rights First and Human Rights Watch, the ACLU, the ABA, and many faith-based and secular refugee service and advocacy organizations. Introduced again in the 113th Congress, it is now pending before the Senate Judiciary Committee.


Refugee rights advocates in the United States had some success in convincing the Clinton Administration not to refrain from interdicting Haitians on the high seas and summarily repatriating them as a matter of policy, even though the Sale decision authorized it to do so. However, advocates failed to convince the US Congress to change the law to require the executive branch to honor the principle of nonrefoulement where it exercises jurisdiction or control outside US territory. Therefore, the George W. Bush Administration was able to revert to the practice of high seas interdiction and summary return of Haitians to a place where they were likely to face threats to their lives and freedom.

YLS Sale Symposium: Limiting the Damage–Global Refugee Rights Advocacy after Sale

by Bill Frelick

[Bill Frelick is the director of Human Rights Watch’s Refugee Rights Program.]

The UN High Commissioner for Refugees (UNHCR) rightfully characterized the US Supreme Court’s Sale v. Haitian Centers Council judgment in 1993 as a “setback to modern international refugee law,” and for the next two decades nongovernmental organizations (NGOs) and UNHCR have been trying to limit the damage, pick up the pieces, and salvage what they could after that setback.

Refugee advocates saw immediately that the central idea of the Sale decision, that the principle of nonrefoulement does not apply extra-territorially, would give a giant push to a movement among asylum-destination states that was already well underway at the time of the decision to divert refugee flows, particularly of boat migrants. What made Sale particularly damaging was not only the judgment per se, but the fact that it came from the United States, the erstwhile leader of the modern refugee regime. From Europe to Australia, but no less so among less developed states in Asia and Africa, the US example of interdicting and pushing back Haitian asylum seekers, now blessed by the Supreme Court, looked like a green light for erecting barriers not only to prevent entry, but to operate unbound by the principle of nonrefoulement, cornerstone of international refugee law, on the high seas and in other legally grey areas, such as no-man’s lands between border crossings, where territorial jurisdiction is not always clear.

This essay will look at how NGOs and UNHCR, among others, worked to reiterate in international law fora the principle that the principle of nonrefoulement knows no territorial limits, to dissuade other jurisdictions from adopting the Sale interpretation, and to challenge other states that might try to follow the US lead in interdicting and summarily returning boat migrants. A companion essay looks specifically at NGO advocacy post Sale directed at the executive and legislative branches in the United States.

IACHR: The Inter-American Commission on Human Rights (IACHR) was an early battleground in this effort. A coalition of key Haitian-specific NGOs, including the National Coalition for Haitian Refugees, the Haitian Refugee Center in Miami, and the Washington Office on Haiti, joined with the Haitian Centre for Human Rights in Port-au-Prince to petition the IACHR to declare the US interdiction program a serious violation of internationally protected human rights. In 1997 in Haitian Centre for Human Rights et al. v. US, the IACHR found that US interdiction and summary return of Haitians contradicted the US’s nonrefoulement obligations under the Refugee Convention, which know “no geographical limitations” and that the US further breached article 27 of the American Declaration of the Rights and Duties of Man by preventing interdicted Haitians from exercising their right to seek and receive asylum in a foreign country.

UNHCR’s Executive Committee: In the years immediately following the Sale decision, another key battleground for refugee advocates was the UNHCR Executive Committee, where the United States had heretofore played a relatively progressive role with respect to articulating refugee rights principles. But in the post-Sale 1990s, the United States began to play a decidedly obstructive role on the interpretation of the nonrefoulment principle. (See here.)

Previously, ExCom conclusions on nonrefoulement going back to 1977 routinely said that the principle of nonrefoulment applies both at the border and within the territory of states. In the ExCom conclusions of 1996 and 1997- ExCom Conclusions 79 and 82–the “at the border” language was dropped.  An early draft of ExCom 79 had reiterated the standard “at the border” language, but the US delegation to the June 1996 standing committee opposed that language, calling it an overstatement of existing international refugee law. UNHCR wrote a letter to the US mission to the UN in Geneva saying that “no other state has adopted as a matter of law the circumscribed view of nonrefoulement advocated by the United States.” US advocates, including this writer, met with and corresponded with US government officials to argue that the position the US was adopting at the ExCom went even further than Sale, which had addressed high seas interdiction, but had not suggested that the principle of refoulement does not apply at the US border. In fact, Justice Stevens had said, “The INA offers these statutory protections [referring to §243(h) of the Immigration and Nationality Act] only to aliens who reside in or who have arrived at a border of the United States.”

A letter signed by 12 executives of NGOs, including the US Committee for Refugees, the International Rescue Committee, the US Catholic Conference, Church World Service, and Hebrew Immigrant Aid Society wrote to Anthony Lake, assistant to the President on National Security Affairs, saying: “What standing will the US State Department representatives have next time we plead with West African nations not to push back Liberian boat refugees?… What signal is the US sending to countries like Turkey and Iran who have recently refused entry to Kurdish persons fleeing Saddam Hussein’s secret police?”

The US NGOs were able to convince the State Department to include in its speech to the 1996 ExCom a “political statement” that referred to the principle of nonrefoulement as applying “from the border” of a state, but the State Department only consented to refer to this as a “humanitarian principle,” not a legal one.

With the turn of the millennium and to commemorate the 50th anniversary of the Refugee Convention, UNHCR convened a series of Global Consultations on International Protection intended to clarify and fill protection gaps in the Convention. UNHCR commissioned scholarly analyses and convened expert roundtables geared toward maritime interdiction and the principle of nonrefoulement, all of which set the stage for ExCom Conclusion 97 of October 2003 on Safeguards in Interception Measures. Although ExCom Conclusion 97 did not explicitly use the term nonrefoulement, it said that:

“interception measures should not result in asylum-seekers and refugees being denied access to international protection, or result in those in need of international protection being returned, directly or indirectly, to the frontiers of territories where their life or freedom would be threatened on account of a Convention ground.”

Continue Reading…

Is the Crimea Crisis a Factual or Legal Disagreement?

by Julian Ku

University of Memphis law professor Boris Mamlyuk criticizes most U.S. international law commentary on the Crimea/Ukraine crisis for failing to take seriously the Russian point of view. I’ve noticed several commenters here have also complained about our pro-Western bias.  Part of the problem is that there is a dearth of international law commentators writing in English in favor of the Russian legal position. Even Prof. Mamlyuk’s short essay doesn’t try to defend or explain Russia’s legal position, except to point out that Ukraine may have committed some minor violations of its own.  But let me try to at least explore Russia’s position in more detail. The best defense I can come up with is that Russia is arguing the “facts” and not the “law.”

During today’s Security Council debate, Russia’s UN Ambassador Vitaly Churkin appears to have given a fuller defense of Russia’s legal position, at least vis-a-vis the upcoming Crimea referendum.

“Some dispute the legality of such a referendum, but it is unacceptable to manipulate individual principles and norms of international law, randomly pulling them out of context not only of the international law, but the specific political circumstances and historical aspects,” Churkin said.

In each case, the envoy believes, one should “balance between the principles of territorial integrity and the right for self-determination.”

“It is clear that the implementation of the right of self-determination in the form of separation from the existing state is an extraordinary measure. In Crimea such a case apparently arose as a result of a legal vacuum, which emerged as a result of unconstitutional, violent coup d’état carried out in Kiev by radical nationalists, as well as direct threats by the latter to impose their order on the whole territory of Ukraine.”

I am pretty surprised that Russia is  endorsing this expansive view of self-determination, which I think could be fairly invoked by certain parts of Russia itself (Hello, Chechnya!).  But I suppose the dispute here with the West could be understood as factual rather than legal.  Most scholars would accept the idea that self-determination is appropriate in certain exceptional circumstances, such as decolonization or when facing the threat of genocide or other mass killings. No one west of the Ukraine border seems to think Crimea qualifies (except the good folks at RT) because none of us think that the new Ukrainian government has threatened Crimea in any tangible way.  But Russia could be understood to be arguing the facts (see, Crimea really is threatened by the fascists in Kiev) rather than the law.  I think it is a pretty ludicrous factual argument, but there it is.

Russia’s position on the use of military force is also factual rather than legal.  It argues that there are no Russian forces in Crimea other than the naval forces that are stationed there by treaty right. It simply denies that the forces in control in Crimea are official Russian troops.  This appears to be an even more ludicrous factual claim, but it also would mean that Russia accepts that open displays of military force would be a violation of the Charter.

Russia’s shift to factual rather than legal arguments is smart because it parries US and EU criticisms about the “violation of international law.”  It doesn’t rebut those charges terribly well, mind you, but perhaps the argument is just strong enough to convince those who want to find ways to accept the legality of Russia’s actions.

Winding-Up the Ukraine Insta-Symposium

by Chris Borgen and Roger Alford

Our thanks to all who have contributed to the conversation here on Opinio Juris about the many legal issues related to the situation in Ukraine.

Over the past week we have had guest posts on topics such as Russian rule-breaking as power politics, the use of force under international law, the international humanitarian law issues involved in the Crimean crisis, the limits of intervention by invitation (1, 2), the law of self-determination, lessons from the Aaland Islands dispute, the Russian/ Ukrainian Black Sea status of forces agreement, and transitional justice in Ukraine and Russia.

And, that is not to mention all the posts by the regular Opinio Juris bloggers on topics such as the Crimean referendum (1, 2), Russia’s “citizenship power play,”  the Presidential authority for visa restrictions, whether Yanukovich could request Russian intervention, and the efficacy-or lack thereof-of international law (1, 2, 3).

Further, still, in addition to the main posts, we have dozens of reader comments that have been interesting, enlightening, and informative. Thank you!

At this point,  if there are any more submissions for potential posts, we need to receive them by 3:00 pm Friday (US Eastern Time) so that those selected can be posted this weekend.

Although this symposium is drawing to a close, we at Opinio Juris will continue writing about the ongoing issues in Ukraine.

Once again, thank you, everyone, for participating in this discussion and contributing to our understanding of the situation in Ukraine.

We hope you will continue to participate as we continue exploring the international legal issues in the conflict over Ukraine’s future.

YLS Sale Symposium: The European Union Policy on Refugees and Its Effect on Eritrean Refugees

by Meron Estefanos

[Meron Estefanos is an Eritrean journalist, author and human rights activist.] 


The last decade have witnessed an upsurge of Eritrean refugees taking to the Mediterranean Sea in search of a safety from repression and unlimited national service they are facing in their home country. However, in their flight from their home countries, these refuges have encountered several plights such as extortion by Eritrean and Sudanese security, sale to Rashaida human smugglers and traffickers, abduction while traveling or after arriving at a camp or their apartments. Out of desperation and to run away from the mistreatment on the hands of Libyan security, the refugees crowd into decrepit ships by unscrupulous smugglers for a huge amount of money. Consequently, the estimated number of Eritrean refugees drowned while trying to reach European ports has reached in thousands. There is a need to investigate the legal and practical reasons to the question as to why all these increasing numbers of would-be refugees and asylum seekers encountered serious danger at sea.

International Law and Refugees on High Seas

In accordance to the 1951 Refugee Convention, a refugee must not be forcibly returned to a country where his or her life or freedom would be endangered, or to a country where he or she would not be protected against such return. Under the Convention on Search and Rescue also stated that that there is a clear obligation of Seafarers to rescue a ship in distress and deliver the people to a place of safety. However, the Convention has failed to specify whether the nearest suitable port, the next regular port of call, the ship’s home port is considered as a place of safety. Since allowing refugee or asylum seekers who has been rescued at the sea to disembark on one’s territory brings about obligations on the receiving states, in most case states are reluctant to accept such responsibility and they are not under positive obligation to open their doors.

Experts in this area pointed out that the contradiction on the intersection of the law of sea and refugee law thus leaves sea actors in an awkward position. On the one hand, sea actors are obliged by law to rescue people in a distressed ship, while at the same time states are not obliged to accept the refugees rescued at sea. The issue remains unresolved as to who has the responsibility for accepting asylum seekers rescued at sea, processing their claims, and providing a place of safety. Thus, these loopholes under the international law provided countries to enter into different agreement to tighten their borders to protect refugees from entering their ports through the sea.

Italy, in the first place and other European countries after, had signed bilateral agreements with the Libyan authorities to intercept illegal boats and that effect. The 2003 and 2004 agreements had a programme to send back undocumented migrants to their home country. As the result of this agreement, hundreds of Eritreans are deported back to their country where they faced persecution. Most importantly, there was also a crucial agreement was entered on December 2007 between Italy and Libya in which the Italian government had found a loophole to return migrants who have already left the Libyan coast.

The other important agreement worth noting in relation to refugees at sea is the Dublin II Regulation. In relation to people rescued on sea, this regulation places obligation to conduct asylum claims of landing migrants in the hands of Border States of the EU. Thus, Malta feels disadvantaged by the Dublin II Regulation. It pushed that there must be a burden sharing agreement among EU member states concerning the issue asylum seekers. To address this issue of burden sharing, the European Union through its agency FRONTEX also pushed for co-operation agreement with Libya with the aim of patrolling Libyan waters and brings intercepted migrants back to Libya.

As the result of these these skewed agreements and policies which are contrary to EU refugee regimes and the principle of non-refoulment a cornerstone of the international refugee protection, many refugees became victims of many violations of human rights, and death in the sea. Many Eritreans were intercepted by Italian sea patrol and returned back to Libya where they faced imprisonment in harsh conditions for years.  Furthermore, hundreds of Eritreans who took the risk of crossing the sea out of desperation were exposed to a brutal death on the seas due to rough weather.

The Unintended Results of Tighter Control

The agreements entered between EU and Libya to tighten controls at borders and ports-of-entry had an e unintended consequence of on the Eritrean refugee who were trying to cross the sea to enter Europe and those who try to avoid Libya and find another route to other countries. The crimes perpetrated by security forces in Sudan, Libya, and Egypt have increased unprecedented. Abduction for extortion locally reaches an amount of $2000 – $5000. Refugees are also exposed to a forced trip north to be sold to renegade Egyptian Bedouins who torture the refugees mercilessly in order to get them to call relatives and obtain huge ransoms, typically in the $30,000 – $50,000 range per person. In the hands of the hijackers, Eritrean hostages quite often face torture usually involves burning with hot irons, electroshocks, dropping molten plastic on the skin from burning bags and bottles, exposure to the weather, sleep deprivation, continual rape of women, suspension upside down, and lack of food and water. Hostages are released if and when the ransom is paid. For those not paying, some are kept on as slaves, and some are killed and dumped in the desert. In most cases, after families have paid ransom, they get re-sold to other sets of traffickers, creating an almost interminable circle.

Moreover, there is a tendency by the host countries to categorically name all the refuges who are smuggled out to the country as economic migrants though it is know that Eritreans came from a repressive regime which doesn’t respect human rights.  It was also indicated that those who managed to go to Israel from Egypt also face humiliating and inhumane conditions. The government considers them as “work infiltrators” instead of refugees. The victims/survivors are seen as economic migrants and not as people deserving of protection. As a consequence, and particularly under the Anti-Infiltration Law, they are considered undesirable. This conflates asylum processing and security, and undermines refugee protection and assistance.

As long as there is violation of human rights and repression, people will flee their countries to seek a better life and asylum seekers will be found among those who encounter danger on the high seas. Thus, the European Union member states must: first, respect their refugee and human rights laws and their obligation under the international law; second, revise the Dublin II Regulation in a way that shifts the burden on the peripheral countries to all EU members’ states to end the human catastrophe in the high seas and victimization of refugees on the hands of traffickers and smugglers.

YLS Sale Symposium: Spatial Practice as Evidence and Advocacy

by Bradley Samuels

[Bradley Samuels is a Partner at SITU Research. All work described here was undertaken within the scope of Forensic Architecture, a European Research Council funded project based out of Goldsmiths Center for Research Architecture.]

Whether captured by citizen videos, orbiting satellites, or international monitoring agencies, violations of human rights are increasingly documented in visual and spatial registers. Consequently, architectural representations – plans, physical and digital models, geospatial maps and remote sensing – are finding an increasing role as evidence in tribunals and international courts. Today’s forums – be they diplomatic assemblies, fact-finding missions, or human rights reports – are beginning to incorporate spatial analysis as a robust component of humanitarian work. Space necessarily emerges here as a legal construct at the intersection of archive, analysis and artifice – a condition that makes artists and designers uniquely equipped to engage the spatial nuances of cases that previously were the exclusive territory of lawyers, activists and policy makers.  From territorial disputes through acts of genocide, this presentation explores the role of designers within contemporary legal and political forums through the application of its native tools and methodologies in an effort to posit new strategies for documenting, mapping, modeling and visualizing spatial components of international humanitarian law and advocacy.

As part of an investigation into emerging methodologies, a model of synthetic practice is explored here that presents the mining of disparate sources of data into coherent spatial narratives. Strategies are thus explored for combining data types across platforms and sources to leverage a wide range of digital tools to enable workflows between varied softwares – from parametric and geospatial to remote sensing and more.  In addition to the tools themselves, representational and rhetorical frameworks specific to both evidentiary, and advocacy contexts  also are unpacked and assessed in relation to the aforementioned instruments and methodologies.

Case Study: Non-Assistance at Sea
This case study was undertaken in collaboration with Charles Heller and Lorenzo Pezzani.

Among the many migrant vessels that attempted the journey to southern Italy during the 2011 crisis in Libya, one particular case, covered extensively in the international press involved the journey of 72 sub-Saharans fleeing Tripoli by boat on the early morning of March 27, 2011. After traveling about halfway to the Italian island of Lampedusa during their first day at sea the vessel ran out of fuel and subsequently drifted for the following 14 days without food or water until landing back on the Libyan coast. Only 9 of the migrants ultimately survived. In interviews following the event the survivors recounted a series of interactions they had with other actors while at sea. This included a military aircraft that flew over them, a distress call they placed via satellite telephone, two encounters with a military helicopter and an encounter with a military ship. The survivors’ testimonies thus clearly pointed to violations of International Maritime Law which obligates all parties encountering a vessel in distress to render assistance (article 98 of the United Nations Convention on the Law of the Sea).

In an effort to understand the events that led to this tragedy and to shed light on others like it, a report was undertaken aimed at a spatio-temporal reconstruction of the 15 day period between March 27th 2011 when the vessel left the Port of Tripoli until April 10, 2011 when it washed ashore in Zliten. A comprehensive textual analysis was undertaken in concert with the production of a series of visualizations, diagrams and figures. This work was an exercise in culling of disparate data (geospatial, meteorological, testimonial, military and other) that was ultimately recombined in an effort to assemble a coherent spatial narrative of the chain of events. The diversity of sources and types of data required the report to draw upon the methodologies and expertise of a variety of disciplines, among them remote sensing, cinematography, architecture and oceanography. The result is a synthetic spatial product that leverages increasing technological interoperability and cross disciplinary collaboration to help address what was certainly a humanitarian failure and, ultimately, also a legal question: who was responsible for these deaths? The ultimate destination of this report is a legal case being mounted against France for non-assistance of people in distress at sea. The goal of this work is both to hold accountable those individuals, states and organizations that failed to assist persons clearly in distress as well as to draw greater attention to the systemic and long standing issue of migrant deaths at sea in the Mediterranean.

Developments in the Haiti Cholera Case: US supports absolute immunity of UN and two new suits filed

by Kristen Boon

There have been some interesting developments this past week regarding the legal proceedings against the UN following the outbreak of cholera in Haiti in 2010.  For background on this tragic and politically sensitive case see my prior posts here, here, here and here.

Readers will recall that efforts to obtain compensation for the victims moved to US courts in October 2013, when the Institute for Justice & Democracy in Haiti initiated a law suit, Georges et al v. UN in the Southern District of New York.

On Friday, March 7, 2014, the United States filed an 18 page “statement of interest” in the case (at the request of the Court) in support of the UN’s absolute immunity from process.  The full document is available here.   It argues that all defendants, including the UN and MINUSTAH, are immune from suit, absent an express waiver.   Citing three cases on treaty interpretation, the statement of interest also asserts that if there is any alternative reading of the General Convention’s text, the Court should defer to the Executive Branch’s interpretation.

Another important development is that within the last week, two new suits have been filed against the UN, which seem to borrow from and overlap with the class of plaintiffs proposed in Georges et al. v. United Nations.    On March 6, Petit Homme Jean-Robert  et. al. v UN was filed by Emmanual Coffy, a Haitian American lawyer.

The case filed on Tuesday, Laventure v. UN, is another class action, and the press release states the attorneys involved have had experience in national tobacco lawsuits, the national BP gulf oil spill, and recent Goldman Sachs aluminum antitrust litigation.  The latter suit is of particular interest because the central argument is that the UN expressly waived its sovereign immunity in its 2004 agreement Status of Forces Agreement (SOFA) in Haiti.  The basis of this argument is para. 54 of the SOFA which states:  “Third-Party claims for…. Injury, illness or death arising from or directly attributed to (Stablization Agreement) shall be settled by the United Nations …. And the United Nations shall pay compensation.”

What should we make of all these developments?

There is no question that the UN’s immunity is extremely broad.   Privileges and Immunities are meant to protect the UN’s independent functioning and shield it from vexatious litigation.  Nonetheless, the position that the UN’s immunity is absolute deserves careful examination.

Section 2 of the General Convention protects the UN from any form of Process, while Section 29 of the Convention on Privileges and Immunities of the UN requires the United Nations to “make provisions for appropriate modes of settlement of […] disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party.”   This has not happened in this case.  I argued in an earlier post that Article 29 mitigates the absolute de facto immunity of the United Nations, and August Reinisch has argued that the rationale of Section 29 is to ensure due process of law and to protect fundamental human rights.

Courts have been willing to limit the immunities of IOs when no dispute resolution mechanism has been provided.  Following the 1997 cases of Waite and Kennedy, an employment dispute involving the European Space Agency, European courts have often linked immunities to “reasonable alternative means.”  To date, US courts have not followed this trend.  In a 2010 employment case in the Southern District of New York, Brzak v. UN, the Court found that the UN possessed absolute immunity.  Nonetheless, it is possible that the facts of the Haiti cases are such that the Courts will revisit this approach.

Another noteworthy contextual factor is that the US Government is acting defensively in supporting the UN’s absolute immunity.   If a state disregards an international organization’s immunity, it might give rise to allegations of international responsibility on the part of the forum state, which wrongly asserts jurisdiction over an international organization.  (See August Reinisch, International Organizations Before National Courts, 2000).   Moreover, the US is home to a number of important organizations, and the failure to uphold immunity would have consequences far beyond this case.  Nonetheless, the US Government’s position is to be contrasted with the efforts of individual congress members who have urged the UN to settle with victims.

If the UN has in fact waived its immunity, as the lawyers in the new case Laventure are attempting to prove, it provides a strong basis for these cases to proceed.  But I don’t read Art. 54 of the SOFA as a waiver of immunity.   It certainly does not expressly waive immunity.  Instead, this provision, like GA A/RES/52/247, the other instrument on which they rely, addresses limitations on UN liability, which is quite a different beast.

It has become apparent that this case is not going away.   It is very unlikely a US court will read down the UN’s immunity and permit the cases to proceed, and yet, there are different ways to dismiss a case, particularly given the facts here. Its also clear, however, that the victims have not yet had a satisfactory response from the UN, and that ultimately resolution must come from the UN itself.

Ukraine Insta-Symposium: Of Secession & Less-Drastic Means–Do the Åland Islands Hold Any Lessons for the Crimea Crisis?

by Rhodri Williams

[Rhodri C. Williams is a US human rights lawyer living in Sweden and working for the International Legal Assistance Consortium. He writes on human rights issues on his own blog, TerraNullius.]

In the crisis triggered by Russia’s poorly concealed incursion in Crimea, there are plenty of grounds to believe that Moscow’s international law arguments are largely a smokescreen, albeit one arguably enabled the West’s own blurring of legal lines in the course of two decades of liberal interventionism. Lying behind Russia’s normative protestations, however, are concrete assertions of political interest that will have to be addressed in order to achieve a sustainable resolution. In this sense, an emerging normative challenge relates to the extent to which international law and practice on self-determination would facilitate such a process.

Russia’s has a number of arguable political interests in the Crimean peninsula. The most obvious relate to security, and Crimea’s role as a warm water port of longstanding strategic significance to the Russian Navy. However, a far broader claim relates to Russia’s asserted right to protect both its citizens and Russian speaking minorities throughout a “near abroad” corresponding to the boundaries of the former Soviet Union. Like any country, Russia has a legitimate interest in the fate of its citizens and an arguable interest in supporting kin minorities. However, the unilateral and open-ended imposition of Russia’s own “protection” in a neighboring state is taken by many in the region as a thinly veiled excuse for a new round of post-Soviet revanchism. Indeed, comparisons have inevitably been drawn to “Hitler’s substitution of ethnicity for state borders” in the lead-up to World War II.

The issues raised by Russia’s “ethnic” claims in Crimea, eastern Ukraine and beyond play on debates about the alignment of states and nations that have been with us since the 19th century, but which gained an explosive new life since the end of the Cold War. Ironically, the original political emergence of these issues arguably came with the Crimean War of the 1850s, in which France and Britain sought to prevent Russia from encroaching on Ottoman Turkish-held territories in the Balkans. However, while both Ukraine and the Balkans have subsequently provided spectacular examples of the failure to peacefully manage diversity, the Åland Islands of Finland – the little known northernmost theatre of the Crimean War – give some grounds for hope.

The “Åland example”, as described in a recent book by the Åland Islands Peace Institute, has significant resonance for Crimea. Perhaps most obviously, Åland, like Crimea, occupies a strategic location in a region long troubled by ethno-linguistic cleavages. Åland is an archipelago in Finland that projects toward Sweden across a narrow strait in the Baltic Sea. Like the rest of Finland, Åland was part of Sweden until 1809, when the country was incorporated into Russia. Eager to consolidate an outpost within striking distance of Stockholm, the Russians built a fortress at Bomarsund on Åland.

Thus, the issue of strategic location arose early, with the British and French war aims focused on destroying both Bomarsund and Sevastapol in Crimea, and preventing them from being militarized again. Since the Crimean War, Åland – in contrast to Sevastapol – has remained demilitarized, in a local regime rooted in the 1856 peace settlement. The “ethnic issue” on Åland remained dormant for another 60 years until 1917, when Finland became independent. Until then, the tiny Åland population had aligned itself with the minority of mainland Finns (at the time about 10%) that spoke Swedish as their mother tongue, but that would quickly change.

In 1918, the first Finnish Constitution granted the Swedish language formal equality with Finnish, paving the way for an enduring cultural autonomy that has guaranteed linguistic and cultural rights for Swedish-speakers without granting them either political veto powers or control over their territories. Meanwhile, the Ålanders had already begun to agitate for secession to Sweden and succeeded in bringing their case to the newly founded League of Nations. The result was a 1921 compromise solution in which sovereignty was retained by Finland, but on the condition that Åland was to be granted an extensive territorial autonomy, or local self-rule. In order to assuage Sweden’s security concerns, Crimean War-era demilitarization was affirmed and expanded.

As described in the Peace Institute’s book, all this led to a surprisingly durable regime, sanctified by international law obligations (compiled here), but fundamentally anchored in consent. The authors attribute the longevity of Åland’s arrangements to a number of factors. A key departure point was the astute balance of dissatisfaction set by the original League of Nations decision. Finland was granted sovereignty without control, Åland self-rule without self-determination, and Sweden security guarantees without territorial gains. This may have contributed to a dynamic whereby all parties acted on “the basic premise of accepting a compromise and learning to live with it” (196). Continue Reading…

Ukraine Insta-Symposium: Crisis in Ukraine–A Transitional Justice Perspective

by Ilya Nuzov

[Ilya Nuzov is an Assistant Researcher with the Geneva Academy of International Humanitarian Law and Human Rights and a PhD student in International Law at the University of Geneva. His main research area concerns transitional justice in Eastern Europe.]  

Much has been said in recent discussions on the Ukraine crisis in an attempt to qualify the ongoing Russian intervention as one kind of violation of international law or another and to ascertain possible legal and political repercussions for either state. (See previous posts in this symposium by Robert McCorquodale, Greg Fox, Remy Jorritsma). This post seeks to bring to the foray what it considers a fundamental issue driving the rift between the two brotherly nations and standing in the way of their reconciliation and democratization. Namely, the failure of either Russia or Ukraine to meaningfully work through the Soviet past internally, as well as with respect to each other, through the institution of any of the transitional justice measures previously employed and recommended by the international community. See a description of these by the Office of the High Commissioner of Human Rights here.

The importance of coming to terms with the past in the post-communist space cannot be overstated. Nations that have transitioned most successfully from authoritarian communist regimes in the former Soviet Union and Eastern Europe, including East Germany, are ones that have implemented robust judicial and non-judicial mechanisms designed to methodically work through the past in order to heal societies and rebuild institutions modeled on democratic principles and the rule of law. Upon its reunification, Germany, which has achieved remarkable economic success while ushering in democracy and restoring trust in public institutions, has employed prosecutions, vetting procedures and a commission of inquiry in order to rid its institutions of the authoritarian legacy, restore societal trust and reconcile Germans who collaborated with the communist regime with those who were persecuted by the infamous Stasi.

The same cannot be said with respect to either Ukraine or Russia. Leaving aside the monumental work of NGOs like Moscow-based Memorial, both countries rank near the bottom of the spectrum of post-communist states in terms of official government efforts to work through the past after the fall of the Soviet Union. In Russia, the most noteworthy reforms were instituted in the early 1990’s and addressed primarily rehabilitations of victims of Soviet-era repressions. In 1991, Yeltsin approved Federal Law of the Russian Federation On the Rehabilitation of the Victims of Political Repressions, No. 1761-1 rehabilitating all victims of political repressions after 1917 and offering, albeit miniscule, financial reparations.

No one has ever been held accountable for human rights abuses in Russia. What has been optimistically called the ‘trial of the CPSU’ was nothing more than a constitutional law challenge by some communists in December 1991 of Yeltsin’s decree that suspended and later banned the Communist Party and its Russian Federation branch. Although the proceedings did manage to unearth thousands of pages of secret archives detailing past atrocities, at the end of the day the trial was condemned as a bureaucratic farce that failed to acknowledge the collective trauma of the past. Today, the archives are under the de facto control of the KGB’s successor, the Federal Security Service, which restricts access even to documents dating back to the 1920s. To further complicate matters, many of Ukraine’s Soviet-era secret police archives have been moved to Moscow and the remaining files, maintained by the Ukrainian Archives Committee, are effectively closed to the public. Compare this with the experience of Germany, which has allowed individual access to Stasi archives under the Stasi Records Act and over five million applications from individual victims of the totalitarian regime have been received since 1992 to view them. Continue Reading…

YLS Sale Symposium: ‘Stopping the Boats’–Australia’s Appalling Example to the World

by Paul Power

[Paul Power is Chief Executive Officer of the Refugee Council of Australia and a member of the Steering Committee of the Asia Pacific Refugee Rights Network.]

In January 2014, a ranger in West Java reported to the Indonesian navy that a mysterious orange vessel had landed on a remote coral reef and about 60 people had disembarked and disappeared. The naval official who investigated first feared that the vessel may hold explosives but instead discovered that the main contents of this fully-enclosed and unsinkable lifeboat were discarded water bottles and food wrappings sourced from Malaysia. The Indonesian authorities worked out that the people who had arrived on the lifeboat were asylum seekers who had been forced on to it by Australian naval and customs officers after the boat they were on began to sink while being intercepted close to Christmas Island.

This incident was reported in the Australian media on February 1 and, in the weeks following, the Australian public learned that their government had purchased 12 of these lifeboats at a total cost of A$2.5 million (US$2.25 million). Since then, another two lifeboats have ended up in Indonesia and at least four seaworthy asylum seeker boats have been returned to Indonesia. The Australian Government is revealing little – refusing to answer many media questions about “operational matters” – but is proudly proclaiming that there have been no successful people smuggling ventures to Australia since 17 December 2013.

Tony Abbott’s conservative Liberal-National Coalition was elected in September 2013 promising to “stop the boats” of asylum seekers (people the Coalition refers to as “illegal maritime arrivals”) entering Australian waters from South and South-East Asia. For five years in opposition, the Coalition had campaigned ceaselessly against the Labor Government’s changes to policies John Howard’s Coalition Government (1996-2007) had introduced to stop asylum seekers on boats. Labor’s decision to end Temporary Protection Visas for asylum seekers who arrived by boat and to close the detention centre on Nauru which was central to the “Pacific Solution” had resulted, the Coalition argued, in 50,000 asylum seekers in five years entering Australia by sea without permission.

Following failed attempts to send asylum seekers to East Timor and Malaysia, in 2012 the Labor Government responded to political pressure from the Coalition and reintroduced the Pacific Solution detention arrangements in Nauru and Papua New Guinea (PNG). Not only did this fail to be the “circuit breaker” Labor wanted, asylum seeker arrivals increased to record levels (25,173 In the year to 30 June 2013), exceeding the capacity of the detention centres in Nauru, PNG and Australia. Processing of asylum claims was slowed considerably, hundreds of Sri Lankan boat arrivals were returned without a refugee status determination process and work rights were removed for asylum seekers released from detention from November 2012 while Labor searched for an even more punitive approach. On 19 July 2013, Labor’s newly reinstalled Prime Minister Kevin Rudd signed a “Regional Resettlement Arrangement” with PNG which would see all future boat arrivals sent there never to be allowed entry to Australia. In August, a similar arrangement was signed with Nauru.

The Coalition argued that these measures were not tough enough to secure Australia’s borders, promising a military style operation, headed by a three-star general, which would include turning back boats when safe to do so. Boat arrivals already in Australia would lose access to government-funded legal aid, be offered only temporary protection if found to be refugees and have no future access to family reunion.

Operation Sovereign Borders commenced when the Coalition Government was sworn in with most of its work hidden from public view. It allocated A$67 million to increased efforts to disrupt people smuggling activities with funds going to authorities in Indonesia, Malaysia and Sri Lanka. Media reports suggest that, in the first two months, these activities prevented 1151 asylum seekers from travelling to Australia. In October and early November, Australia turned back two boats with the involvement of Indonesia but a third boat turnback was aborted when word leaked out about it and Indonesia withdrew.

In mid November, the Indonesia-Australia relationship fell apart when material published by Edward Snowden revealed that in 2009 Australia had been listening in to the mobile phone conversations of the Indonesian President and his wife. Indonesia was deeply unhappy with Australia’s response to these revelations and declared that it would no longer cooperate with Australia on people smuggling matters.

Australia has clearly gone it alone since then and appears to have forced back seven boats since mid December, including boats which appear to have reached Australian territory. In mid January, the Australian Government admitted that its navy and customs boats had inadvertently entered Indonesian territorial waters on six occasions and apologised to Indonesia. It appears that these breaches occurred while boats of asylum seekers were being forced back.

Australia’s response to asylum seekers travelling directly from Sri Lanka is even more troubling, given that Australia is working actively with the government from which people are fleeing. UNHCR described Australia’s policy of excluding many Sri Lankans from access to the refugee determination process after a cursory initial interview and then returning them as “unfair and unreliable”. We at the Refugee Council of Australia have raised concerns about the possibility that Tamil asylum seekers have been refouled and expressed opposition to Australia’s decision to donate patrol boats to Sri Lanka and ignore the country’s human rights record.

While Australia’s interception activities breach standards in international law, domestic legal remedies are limited. Australia does not have a bill of rights in its constitution or in national legislation and rights under international law do not automatically become incorporated into Australian law. In 2001, the Federal Court confirmed the Australian Government’s power to exclude and expel non-citizens and to detain them for that purpose. In 2011, the High Court ruled that the Australian Government could not proceed with its plan to send asylum seekers to Malaysia because Section 198A of the Migration Act required it to ensure that adequate legal protections were in place. While the arrangement with Malaysia did not proceed, Section 198A was amended in 2012.

In a political environment in which both major political parties share similar views about the expulsion of boat arrivals, political advocacy is very difficult. However, a significant minority of Australians are becoming more and more vocal in their opposition to policies which they see causing harm to people seeking asylum. The greatest threat to the Government’s policies is likely to come from longer term public reaction to their unsustainability – the chaos which develops as a result of widespread long-term detention; the impracticality of refugees being settled sustainably in PNG, Nauru or even Cambodia (last week’s new thought bubble); and the damage caused diplomatically by Australia’s outrageous behaviour. As I endlessly repeat, the current issues facing Australia will not disappear until governments in Asia-Pacific begin to realise that collectively they have much more to gain by working together on a regional approach to refugee protection than by trying unilaterally to turn their backs on those in need.

YLS Sale Symposium: Immigration Detention and Status Determinations in Guantánamo Bay, Cuba

by Azadeh Dastyari

[Azadeh Dastyari is a Lecturer in the Faculty of Law at Monash University and an Associate of the Castan Centre for Human Rights Law.]

US President Barack Obama has stated that Guantánamo Bay is “a symbol around the world for an America that flouts the rule of law”. He was referring to the imprisonment of non-citizens in the ‘war on terror’ in the US Naval base that has garnered unprecedented international attention and has been the subject of much scholarship. The same quotation is also applicable to the much less known detention of refugees in the US Naval base in Guantánamo Bay, Cuba.

Under its Migrant Interdiction Program, the US intercepts sea vessels outside US waters and returns home individuals who are not authorized to enter the US. A very small percentage (less than 0.6% between 1996 and 2013) of the individuals intercepted at sea are identified by the US Coast Guard as having a credible fear of persecution or torture, and are transferred to Guantánamo Bay for further processing. In Guantánamo Bay, they are interviewed by a US Asylum Officer to determine if they have a well-founded fear of persecution (are refugees) or are more likely than not to be tortured if repatriated.

There are significant shortcomings with status determinations in Guantánamo Bay that place the US at risk of violating its non-refoulement obligations under Article 33(1) of the Convention Relating to the Status of Refugees (Refugee Convention) and Article 3 of the Convention gainst Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The US does not provide individuals being interviewed access to legal counsel, the UNHCR or any other group or NGO. This may leave protection seekers unable to articulate their protection needs and thus fail to have their protected status recognized. The US also fails to provide any independent review of status determinations. Such a review would provide an additional safeguard against mistakes and assist in ensuring that no refugee or individual owed protection under Article 3 of the CAT is wrongly repatriated.

All individuals transferred to Guantánamo Bay under the US interdiction program are detained at the Migrant Operation Center. Detainees are separated into three categories: (i) individuals who are found not to have protection needs are labelled ‘non-protect migrants’ and are repatriated; (ii) asylum seekers whose status has not yet been determined are labelled ‘undetermined migrants’; and (iii) asylum seekers who have had their refugee status recognized by an Asylum Officer are labelled ‘protected migrants’ (as are individuals who are assessed as being more likely than not to be tortured if repatriated).

Individuals in the ‘protected migrants’ category remain in Guantánamo Bay until a third country can be found for their resettlement, which may take months or even years.  It is also worth noting the US government’s insistence on using the term ‘migrants’ when referring to people it has recognised as refugees in Guantánamo Bay. This stems in part from the US’ denial that its obligations under the Refugee Convention extend to its exercise of jurisdiction in Guantánamo Bay. The US views any protection it offers against refoulement to individuals at the Migrant Operation Center a gratuitous humanitarian act rather than what it truly is: the fulfilment of the US’ international legal obligations.

Immigration detention in Guantánamo Bay violates the US’ obligation to refrain from arbitrary detention under Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR). In A v Australia, the Human Rights Committee considered the legality of Australia’s policy of mandatory immigration detention and stated that the factors necessitating detention must be ‘particular to the individual’ in order for it not to be characterized as arbitrary. In A v Australia Australia’s policy of mandatory immigration detention was found to be arbitrary because the reasons given for the detention (unlawful entry and fears of the detainee absconding if free) were not particular to the detainee in question. As with Australia’s policy of mandatory immigration detention, individuals transferred to Guantánamo Bay under the US interdiction program are subject to arbitrary detention because no assessment is made of the individual circumstances of each detainee and no alternatives to detention are considered.

Closely related to Article 9(1) of the ICCPR is Article 9(4) of the ICCPR. The Human Rights Committee has interpreted Article 9(4) to mean that detainees must have a right to appeal their detention in a court to determine the legality of the detention. Furthermore, a court reviewing detention must be empowered to order the release of the detainee if there is a violation of Article 9(1) of the ICCPR. The Committee has found that review of detention which is ‘limited to mere compliance of the detention with domestic law’ does not satisfy the requirements of Article 9(4) of the ICCPR.

The US Supreme Court has recently confirmed that non-citizens held in Guantánamo Bay must have access to the writ of habeas corpus. As such, immigration detainees should now have a right to appeal their detention in a US court to determine the legality of their detention. However, any review of detention in US courts is “limited to mere compliance of the detention with domestic law”  in violation of Article 9(4) of the ICCPR.

Despite diplomatic efforts, the US has little control over how long it may take to find a third country willing to resettle immigration detainees from Guantánamo Bay. As such, the most viable means of releasing detainees who cannot be repatriated (because they are owed protection from refoulement, are stateless or for some other reason) from arbitrary detention in Guantánamo Bay would be to transfer the detainees to the US mainland. However, despite access to habeas corpus, detainees are unlikely to be brought into the US mainland under any court challenge. The US Supreme Court has determined that it “is not within the province of any court, unless expressly authorized by [municipal] law, to review the determination of the political branch of the Government to exclude a given alien”. US courts have also construed restraints on the freedom of movement of non-citizens resulting from their denial of entry into the US not as unlawful detention, but as a permissible exercise of the executive’s plenary power to deny non-citizens entry. That is, the executive retains the right to decide if and when detainees in immigration detention in Guantánamo Bay can be released from their detention by being brought into the US. As such, the use of Guantánamo Bay as an element of the US’ interdiction program is likely to continue despite violations of the US’ international obligations. 

YLS Sale Symposium: The Politics of Interdiction and Haitian Advocacy

by Jocelyn McCalla

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

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

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

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

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

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

YLS Sale Symposium: Haitian Democracy, the Sale Decision and Haitian Refugees

by Ira Kurzban

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

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

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

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

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

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

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

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

Online Symposium: The Globalization of High Seas Interdiction–Sale’s Legacy and Beyond

by Tendayi Achiume, Jeffrey Kahn and Itamar Mann

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

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

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

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

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

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

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

Ukraine Insta-Symposium: Crimea, Ukraine and Russia: Self-Determination, Intervention and International Law

by Robert McCorquodale

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

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

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

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

Ukraine Insta-Symposium: Intervention in the Ukraine by Invitation

by Gregory H. Fox

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

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

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

Continue Reading…

Guest Post: Mapping Environmental Human Rights

by John Knox

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

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

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

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

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

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

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

The report concludes:

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

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

Weekly News Wrap: Monday, March 10, 2014

by Jessica Dorsey

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




Middle East


Ukraine Insta-Symposium: Two to Tango? The Limits of Government Consent to Intervention

by Tali Kolesov Har-Oz and Ori Pomson

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

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

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

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

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

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

Continue Reading…

Name That Historical Figure

by Kevin Jon Heller

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


Answer after the jump…

Ukraine Insta-Symposium: The Crisis in Crimea–The Protection of Nationals Abroad and the Legality of Ukraine’s Possible Use of Force in Self-Defense

by Sina Etezazian

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

Events and Announcements: March 9, 2014

by An Hertogen

  • Law and Boundaries is an interdisciplinary yearly conference that aims to discuss and propose new perspectives on the challenges the legal discipline is facing regarding its object, its function, its theoretical foundations and its practical outcomes. The organizers are calling scholars from all disciplines to submit their abstracts (250-300 words) before March 14th, 2014. Abstracts are accepted in English and in French. Please note however that presentations should be done in English, and that working papers should preferably be written in English. More information is here.
  • The Academy on Human Rights and Humanitarian Law is callling for applications for the 15th annual Program of Advanced Studies on Human Rights and Humanitarian Law which runs from May 27th to June 13th, 2014, in Washington DC. The program offers 19 courses taught by more than 40 prominent scholars in the field of human rights, in both English and Spanish. The Academy on Human Rights and Humanitarian Law provides through this Program the unique opportunity to learn and interact with judges of the International Criminal Court (ICC), the International Court of Justice (ICJ), Special Rapporteurs of United Nations, members of the Inter-American Commission and Court on Human Rights, recognized members of NGOs and professors from all over the world. The Diploma is offered to a select group of 35 law professionals who fulfill the admission requirements. Access more information here.

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

Ukraine Insta-Symposium: Certain (Para-)Military Activities in the Crimea: Legal Consequences for the Application of International Humanitarian Law

by Remy Jorritsma

[Remy Jorritsma (LL.M.) is a lecturer and teacher at the Department of International and European Law of Maastricht University.]

This contribution intends to demonstrate that Ukraine and Russia are involved in an international armed conflict, triggering the application of International Humanitarian Law (IHL). In particular, this post explores two relevant issues: the question of valid consent, and the legal qualification of the recent military hostilities.

In the Security Council meeting of 1 March 2014 the representative of Russia asserted that

[the Prime Minister of Crimea] went to the President of Russia with a request for assistance to restore peace in Crimea [which] appeal was also supported by Mr. Yanukovych, whose removal from office, we believe, was illegal.

Possibly such consent did not bring about an international armed conflict. Indeed, an international armed conflict (incl. occupation) does not exist when a host State allows another State to carry out armed activities on, or exercise control over, the territory of the host State (cf. SC. Resolution 1546(2004)).

However, the view that a semi-autonomous province and/or deposed Head of State can validly invite foreign troops against the express wishes of the central government makes no sense in light of the well-established principle of non-intervention. By virtue of their office the incumbent Head of Government/State and Foreign Minister are responsible in matters of a State’s foreign relations (Arrest Warrant, ICJ Reports 2005, §53). Neither the local government of the Crimea nor former president Yanukovych should be regarded as competent to issue valid consent to the presence of foreign armed forces, unless the central government of Ukraine agrees to this.

Given the present state of Ukraine, this outcome is not affected by the alleged unconstitutional nature of the ousting of former president Yanukovych. In the Tinoco case (1923) Costa Rica advanced the argument that the Tinoco government had not been a de facto government because of its unconstitutional origin. Sole arbitrator Taft rejected this, noting (at p. 381) that

[it would be a contradiction in terms] to hold that within the rules of international law a revolution contrary to the fundamental law of the existing government cannot establish a new [de facto] government.

Yanukovych’ claim to the presidency of Ukraine should be given little legal credit. His claim is opposed by an effective central authority that, by discharging regular administrative functions and controlling the governmental apparatus, including police and armed forces, is widely recognized as de facto government. In such a case, sparse non-recognition based on the alleged unconstitutional nature of the new government does not outweigh wide recognition based on effective control. Any presence of and action by foreign troops beyond the limits of consent given by the Ukrainian government in the past (eg in form of the Black Sea SOFA) must be regarded as hostile and possibly triggers the application of IHL.

According to common Article 2 of the Geneva Conventions of 1949 the application of International Humanitarian Law is applicable in three situations which amount to international armed conflicts:

(1) formally declared war;

(2) partial or total occupation, even without armed resistance; and

(3) any other (read: de facto) armed conflict.

President Putin asserted the right to invade Ukraine and even received parliamentary approval to use military force. Of course, such rhetoric is not, contrary to certain assertions by Kiev, tantamount to an explicit and formal declaration of war on Ukraine.

Instead, as from the beginning of March, IHL has become applicable as a combined result of the occupation of the Crimea and accompanying factual hostilities. Although it cannot be said with absolute certainty, it is reported that the so-called ‘local self-defence forces’ are in reality Russian armed forces who have removed their insignia,  in which case their actions are by default attributed to Russia. In addition, Russia may even bear responsibility for acts committed by organized armed groups that lack a formal relation with Russia. The Appeals Chamber of the ICTY held that, in order to attribute acts of paramilitary groups to a State it has to be shown that the State exercises overall control over the course of their operations (see Prosecutor v. Tadić, Judgment, 15 July 1999, §131). Whether a State resorts to occupation or wages inter-State conflict by using its regular forces, or indirectly by using non-State actors as proxies to act on its behalf, the legal result is the same. Any hostile action undertaken by  organized armed non-State groups in the Crimea is imputable to Russia if and to the extent that Russia exercises the required degree of operational control.

A situation of occupation as described in Article 42 of the Hague Regulations of 1907 exists when there is a hostile substitution of territorial power and authority; it is irrelevant ‘whether or not [the occupying power] had established a structured military administration’ (Armed Activities in the Congo, ICJ Reports 2005, §173). Through its military manoeuvres and presence Russia qualifies as occupying power: it has been able to establish territorial control and is demonstrably able to exercise its authority in the Crimea without the consent of the central government of Ukraine.

In addition, now that the first (warning) shots on the Crimea have been fired, I would submit that IHL applies as a result of the existence of a de facto state of armed conflict between Ukraine and Russia. The Commentaries to common Article 2 suggest that, regardless of the number of victims or the intensity of hostilities, an international armed conflict comes into being as a result of

‘[a]ny difference arising between two States and leading to the intervention of members of the armed forces’.

This low threshold of application is nowadays still maintained by the International Committee of the Red Cross, and is followed in the case law of the ICTY (see Prosecutor v. Tadić, Jurisdiction Decision, 2 October 1995, §70: ‘whenever there is resort to armed force between States’) and the ICC (see Prosecutor v. Katanga, Judgment, 7 March 2014, §1177, adopting the Tadić definition).

On the other hand, this “first shot” approach has recently been called into question. In its final Report the ILA’s Use of Force Committee suggested (at p. 13) that short-lived or low-intensity confrontations between states were excluded from the scope of application of IHL:

state practice [since 1945] indicated that states generally drew a distinction between on one hand, hostile actions involving the use of force that they treated as “incidents”, “border clashes” or “skirmishes” and, on the other hand, situations that they treated as armed conflicts.

Mary Ellen O’Connell, the Chair of the Committee, notes that the ICRC position may be based on policy rather than law. In my view, however, it appears to be exactly the other way around. The Committee report  was only aimed to arrive at a “general” definition of armed conflict (see p. 3, at n. 7). It based its conclusions on a coalesced overview of inter-state and internal conflicts, doing injustice to the various existing types of armed conflicts and incorrectly conflating their distinct substantive criteria. Moreover, before taking into account subsequent State practice to interpret common Article 2, such practice must have duly constituted the agreement of the parties regarding its interpretation and thus be accompanied by the requisite opinio juris regarding its interpretative value. Affected belligerent states may well have treated minor incidents as not amounting to international armed conflicts out of political motives (eg to prevent escalation or loss of face) or for practical purposes (e.g., because the limited engagements did not cause any victims), rather than out of a strict sense of legal interpretation.

Instead, the exclusion of border clashes and other low-intensity (yet intentionally hostile) inter-State confrontations from the concept of  armed conflict stands in contrast to the widespread acceptance of the Tadić definition for the very purpose of classifying non-international ánd international armed conflicts (see e.g., the summary of the debate on Article 2(b) of the Draft articles on the effects of armed conflicts on treaties, §206-213). Therefore, and to avoid these inter-State hostilities from taking place in a legal vacuum, IHL must be respected as from the moment of the actual opening of hostilities between Ukraine and Russia.

Unfortunately Russia has resorted to a mixture of legal and extralegal arguments to exonerate itself. That being said, the application of IHL rests on factual criteria relating to the identity of the parties and the character of hostilities. As a result of the current situation Ukraine and Russia must now be regarded as bound by, on one hand, customary international humanitarian law and, on the other hand, obligations undertaken by them in treaties applicable to international armed conflicts, most importantly the four Geneva Conventions of 1949 and its First Additional Protocol of 1977.

Another Terrible Day for the OTP

by Kevin Jon Heller

Readers are no doubt aware that Germain Katanga was convicted by the ICC yesterday. What may be less obvious is that the verdict nevertheless represents the Trial Chamber’s complete rejection of the OTP’s case against Katanga. The OTP alleged that Katanga was responsible as an indirect co-perpetrator for seven counts of war crimes (using children under the age of fifteen to take active part in hostilities, directing an attack against civilians, wilful killing, destruction of property, pillaging, sexual slavery, and rape) and three counts of crimes against humanity (murder, rape, and sexual slavery). The Trial Chamber acquitted Katanga on all of the charges concerning rape, sexual slavery, and the use of child soldiers. And although it convicted him of one crime against humanity (murder) and four war crimes (murder, attacking a civilian population, destruction of property and pillaging), the Trial Chamber rejected the idea that he was responsible for those crimes as an indirect co-perpetrator, choosing to “recharacterize” the facts to support finding him guilty as an accessory under Art. 25(3)(d) of the Rome Statute (contribution to a group crime).

The OTP, in short, failed to prove any of its legal claims — just as it did with regard to Katanga’s co-defendant, Mathieu Ngudjolo, who was acquitted on all charges in 2012. Indeed, had the Trial Chamber not been willing to substitute an uncharged and unconfirmed mode of participation for the charged and confirmed one, Katanga would have simply walked, as well.

(Which is, by the way, exactly what should have happened. The Trial Chamber’s “recharacterization” of the facts in the case, which was motivated solely by the desire to ensure Katanga’s conviction — thereby saving the OTP from itself — was fundamentally inconsistent with Katanga’s right to a fair trial. But that will be the subject of my next post.)

All in all, another terrible day for the OTP.

A Seriously Not Cool Phishing Email

by Kevin Jon Heller

I normally find scam emails amusing — especially the one where Ban Ki-moon wants to give me “scam compensation” in the amount of $500,000 on behalf of the “World Bank/United Nations Assisted [sic] Programme.” But the one I received today is just sick:

Dear Friend,

I know this email will surprise you. Please accept my offer for charity plans. My name is Mrs. Halima Izar. I am a rich Syrian woman of 66 years. I was married to the director of (IZAR SEAFOOD LTD) located in China and Cambodia. I am seriously suffering from the chemical gas attack that affected us in August in Damascus. My entire families died by that attack. My condition is hopeless to survive. Nobody to call for help. I am using my doctor’s android phone to send you this email. I want you to take over my funds in Cambodia for charity plans and humanitarian aid for Syrian refugees, and motherless, less privileged, widows in your country. I pray Allah to help us. I have $10,800.000.00 in my Bank. I will offer you 12% for your commitment. My lawyer in Cambodia will direct and arrange the release of the funds to you. I have informed him of my intension to appoint you receive this funds. His contact is below:

Barrister. Toek Sreymao
E-mail: toeksreymao [at] gmail [dot] com
TEL- +855-883994742

May God Bless You.

Mrs Halima

Using chemical-weapons attacks in Syria to try to cheat naive people out of their money is revolting. I hope God does something to “Mrs Halima” other than bless her.

Weekend Roundup: March 1-8, 2014

by An Hertogen

This week on Opinio Juris, we continued to follow the situation in Ukraine as it unfolded with an insta-symposium. Alexander Cooley gave an overview of the power politics at play, while Chris posted about Russia’s use of legal rhetoric as a politico-military strategy, and about how language affects the evolution of international law. This last post built on a discussion between Julian and Peter in which Julian argued that the crisis shows the limits of international law, while Peter took aim at the Perfect Compliance Fallacy.

Further issues of compliance with international law were raised by Aurel Sauri, who analysed when the breach of a Status of Forces Agreement amounts to an act of aggression, by Mary Ellen O’Connell’s post on Ukraine under international law, and by Julian who asked whether a Crimean referendum on secession would be contrary to international law. In a follow-up post on the referendum, Chris surveyed the current state of international law on the right to secede and self-determination. In response to a reader’s comment, Chris also delved into the issue of recognition to figure out who speaks for Ukraine.

Peter examined the legality of Russia’s extension of citizenship to non-resident native Russian speakers and pointed to the legal basis for President Obama’s decision to impose entry restrictions in response to the Ukrainian crisis.

In other news, Julian asked why the US did not call the knife attack in the Kunming railway station a terrorist attack, Charles Blanchard provided a guest post on autonomous weapons, and Duncan updated us on the US Supreme Court’s latest treaty interpretation case.

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

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

Ukraine Insta-Symposium: Russia’s Rule-breaking as Power Politics

by Alexander Cooley

[Alexander Cooley is Professor of Political Science at Barnard College, Columbia University in New York and author of Great Games, Local Rules: the New Great Power Contest for Central Asia (Oxford 2012).]

Among the many political layers of the crisis in Ukraine, I am especially interested in how these unfolding events are part of a broader attempt by Russia to confront the West’s broadly “liberal world order.” By the term I mean not only its most visible organizations such as NATO or the EU, but also the broader system of international rules, organizations, non-governmental advocates, and normative assumptions that have underpinned Western political engagement with the post-Communist space since the Soviet collapse. In Ukraine, we are now seeing this order in open conflict with Russia’s revisionist “great power” legal and normative grammars, as Chris Borgen has described them, though Moscow’s brazen response in Crimea is more of an act of international desperation than we might initially realize.

From the outset of the 1990s, US policy has been to promote the “sovereignty and independence” of the post-Soviet states. These remain code words for extricating them from Soviet era legacies and ties to Russia, and integrating them into new international organizations, laws, infrastructures and governance institutions. The more advanced reformers applied for membership in the European Union and NATO, but throughout the region Western economic and legal advisors instructed governments in reform, while non-governmental organizations and regional bodies such as the OSCE assumed that a common normative space would be forged on the values of the Helsinki Accords themselves.

Vladimir Putin’s ascendency to the power in 1999 initiated a renewed bid to consolidate a hollowed out state power at home and elevate Russia’s global status by forging new forms of security ties to its former republics. After a brief period of cooperation following the events of 9/11, US-Russia relations steadily deteriorated in the 2000s as interests came into open conflict on important issues such as the US plans to deploy a missile defense system, NATO expansion, and the Iraq War.

But it was the so-called Color Revolutions in Georgia (2003), Ukraine (2004) and Kyrgyzstan (2005) that redefined the scope and terms of this new power politics within Eurasia itself…

(Continue Reading)

Russia’s Citizenship Power-Play in Ukraine is Pretty Weak

by Peter Spiro

Russian Prime Minister Dimitry Medvedev yesterday announced a legislative initiative to fast-track citizenship for non-resident native Russian speakers. He didn’t single out ethnic Russians in Ukraine, but the context says it all. The citizenship shift (variations of which have been floated since the Maidan erupted last month) would allow Russia to amplify its protective justification for the action in Crimea. It wouldn’t just be protecting co-ethnics, it would be protecting fellow citizens. Russia similarly put citizenship policy to use in the South Ossetia action in 2008.

Three thoughts:

1. The citizenship policy would be consistent with international law. The only constraint on the extension of citizenship after birth is that it be volitional on the part of the individual. Russia couldn’t simply impose Russian citizenship on Ukrainians en masse, for example. Otherwise, citizenship policies can be as relaxed as a country wants them to be (it’s when they are too tough that international norms come into play). Russia certainly has a closer link to Russian speakers in Ukraine than, for instance, most Sephardic Jews do to Spain, and yet nobody is complaining about the latter.

2. Protecting citizens abroad does not justify uses of force or other acts of aggression. Putin is working from the 19th/20th century playbook in framing military action in protective terms. That’s the irksome part: integrating citizenship policy into expansionist designs. (Spain is not going to use the pretext of protecting Sephardim as the basis for military operations in France.) Traditional international law accepted the use of force to protect nationals against foreign depredations — the U.S. justified scores of military actions on that basis (presidents still do, as a matter of domestic constitutional law, for purposes of constitutionally legitimating the use of force in the absence of congressional approval). Leaving aside narrow exceptions — military deployments should be consistent with international law where necessary to safely evacuate citizens from trouble zones — that’s no longer okay. In other words, the presence of even a large number of Russian citizens in Ukraine adds no weight to Russia’s case for military intervention.

3. Ukraine’s threatened criminalization of dual citizenship is more problematic. Ukraine prohibits dual citizenship, though the ban is apparently underenforced. By way of a counter-move to the Russian proposal, a bill before the Ukraine parliament would impose fines on dual citizens. Dual citizen voting and office-holding would be subject to prison sentences of up to 10 years. Other countries bar dual citizens from officeholding (many through constitutional bars); none bars dual citizen voting. Prison sentences for either would be without precedent. Ukraine would be on firmer ground stripping the citizenship of those having or acquiring Russian citizenship. But that move would create problems of its own, and would hand Russia an additional argument in the (largely false) narrative that Russians are being oppressed in Ukraine.

The bottom line: this is a nothing-burger. Probably the most important consequence of the new Russian policy would be to open the door for newly minted citizens to move to Russia. If Russia’s happy having them, that’s its business, not ours.

Ukraine Insta-Symposium: Ukraine Under International Law

by Mary Ellen O'Connell

[Mary Ellen O’Connell is the Robert and Marion Short Professor of International Law and Research Professor of International Dispute Resolution at Notre Dame School of Law.]

Russian troop movements in Crimea have catapulted international law to the center of a tense political-military drama.  U.S. Secretary of State John Kerry has charged the Russians with an act of aggression.  Russian President Vladimir Putin has parried with arguments in justification and counter-claims involving unlawful Western uses of force.

The very form of these exchanges raises some hope the crisis will be resolved peacefully and the prohibition on the use of force will emerge re-invigorated. Secretary Kerry’s charge of aggression is accurate only under a classic interpretation of the international law on the use of force—one that the U.S. has moved away from steadily since 1999.  Making the charge indicates a new awareness in the U.S. executive branch of the importance of the international law on the use of force.  In the case of the Ukraine, its rights under international law are its most powerful tool vis-à-vis Russia.  The use of military force is not an option; counter-measures need to be aimed at the enforcement of clear legal principles to be permissible and effective.

Events in Ukraine are still unfolding, but some of the established facts help with the legal analysis.  Russia and Ukraine have a 1997 treaty, extended in 2010, that, among other aspects, permits the Russian Navy to have facilities in Crimea until 2042.  The treaty also permits Russia to station up to 25,000 troops in Crimea; Russia has 16,000 there now.  It appears that on March 1, Russia moved 6000 troops beyond its naval facilities in the midst of the turmoil in Ukraine’s capital, Kiev.  Credible reports indicate that many in Crimea support these troops, including armed, uniform-wearing persons.  Russian troops have not so far used lethal force and Ukrainian forces loyal to Kiev remain at their bases.  The interim government in Kiev has demanded that all Russian troops withdraw.

Secretary Kerry is correct that this set of facts could constitute aggression.  Aggression is any serious violation of Article 2(4) of the United Nations Charter.  Article 2(4) generally prohibits the resort to military force. The Charter contains only two narrow exceptions to this prohibition: self-defense if an armed attack occurs (Article 51) and with Security Council authorization (Article 39-42). Some specialists in this area also believe there is a right to intervene upon the invitation of a government.

The 1974 United Nations General Assembly Resolution 3314 supplies additional detail to this basic definition. Under Article 2 of the Resolution, any first use of force in violation of the Charter is prima facie evidence of an act of aggression.  Article 3 lists specific examples of aggression, including the relevant example for the case of the Crimea:

(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

Russia does appear to be in violation of the 1997 treaty and, therefore, in breach of Article 2(4).  This conclusion requires that the interim government in Kiev has authority to reject Russian troops moving beyond their bases, and rejecting the view that the interim government in Kiev is unconstitutional and has no right to demand Russian troops return to their bases.  This position reverses assertions the U.S. had the right to act on an invitation of the Kosovo Liberation Army in attacking Serbia.  (It should be noted that the KLA at the time it acted to draw NATO into its bid for independence from Serbia was on the U.S. list of terrorist organizations, which is not true of independence groups in Crimea seeking Russian assistance.)

In addition to invitation, President Putin has argued “that the people of Crimea, a mixture of Russians, Ukrainians and Tatars, should be allowed to ‘determine their own future,’ comparing them pointedly to Kosovars, who, after a NATO air war, ultimately declared Kosovo’s independence from Serbia in 2008.”  The United States never put forward any legal justification for the use of force in the Kosovo Crisis of 1999.  On a classical reading there was no justification.  Recently, Harold Koh writing in a blog post tried to defend the Obama administration’s advocacy for an attack on Syria in August and September as well as the 78-day bombardment of Serbia in 1999. He said both could be compared to the desegregationist position in Brown v. Board of Education.  The unlawful use of force in Kosovo and Syria was an attempt by the U.S. to change the law for the better.

Koh’s position is flawed in many respects as respondents David Kaye and Carsten Stahn point out.  The most basic logical flaw is that Koh attempts to defend an unlawful means to a good end—using unlawful military force to protect human rights with a means that is the good end: ending segregation in schools.

In the course of his argument, he also opines that the UN Charter is “obsolete.”  This word is, of course, the same used by Judge Alberto Gonzalez, who called the Geneva Conventions “obsolete”.  Secretary Kerry’s charge of aggression can, hopefully, be read as a rejection that the Charter is obsolete, that human rights can be protected through bombing and military force, or that there is ever any right to use military force to punish, as was advocated in Syria.

President Putin also argued that any armed groups in Ukraine were not Russian troops but local militias.  Russian Foreign Minister Sergei Lavrov has asserted the same.  This reminds me of the many arguments for the use of force during the Cold War.  Almost invariably the U.S. or the Soviet Union would attempt to manipulate the facts, but not attempt to distort the law.  They wished to hold each other to the international community’s law.  From Hungary to Vietnam to Czechoslovakia to Afghanistan to Nicaragua to Grenada to Panama, “invitations” were obtained in one way or another.

If these manipulations of the facts were ever accepted, in our age of social media with cameras everywhere, there is really little chance of succeeding with such fiction in the future.  True, the U.S. fiction of being involved in a worldwide “armed conflict with Al Qaeda, the Taliban, and associated forces” seems still to be accepted in some quarters.  That acceptance is likely based on preference for the policy of military attacks beyond armed conflict hostilities rather than real belief of a right to use military force in such situations.  Such attacks violated the restrictions on the use of force and should come to an end as the U.S. turns to international law to support Ukraine.

Putin also made counter-claims, citing U.S. actions

“… in Afghanistan, in Iraq, in Libya, where they acted either without any sanction from the U.N. Security Council, or distorted the content of these resolutions, as it happened in Libya,’ … ‘There, as you know, only the right to create a no-fly zone for government aircraft was authorized, and it all ended in the bombing and special forces in ground operations.’ …”

Putin is correct about the serious breach of Article 2(4) involved in Iraq and the excessive use of force in Libya and even Afghanistan.  Unfortunately for Russia, in international law on the use of force, the wrongdoing of one state does not justify the wrongdoing of another.

The international community should come together to support Ukraine’s rights under international and reiterate the importance of rules against aggression and all forms of the unlawful use of force.

Can Crimea Secede by Referendum?

by Chris Borgen

As Julian mentioned, the Crimean parliament is attempting to achieve the secession of Crimea through the use of a parliamentary vote and a referendum. More legal rhetoric in the midst of political crisis. Back in 2007 and 2008, Russia, the U.S. and the EU used quasi-legal arguments to try to explain why one could support the independence of Kosovo, but not South Ossetia and Abkhazia, or vice versa. It looks like a new iteration of this debate is starting. According to CNN:

lawmakers in Crimea voted in favor of leaving the country for Russia and putting it to a regional vote in 10 days.

It’s an act that drew widespread condemnation, with Ukrainian interim Prime Minister Arseniy Yatsenyuk calling the effort to hold such a referendum “an illegitimate decision.”

“Crimea was, is and will be an integral part of Ukraine,” he said.

The legal issue here is really one of Ukrainian Constitutional law more than of international law, because, as it is generally understood, there is no right to secede under international law. Under international law, a secession is neither a right nor necessarily illegal. It is treated as a fact: a secession either was successful, it was not, or it is still being contested.

There is, however, a right to self-determination, which is understood to be, for communities that are not colonies and are within existing states, meaningful political participation and the pursuit of economic, social and cultural development under the auspices of that existing state, in this case Ukraine.  This conception of internal self-determination makes self-determination closely related to the respect of minority rights and it does not include a right to dismember an existing state. Furthermore, modern views of self-determination also recognize the “federalist” option of allowing a certain level of cultural or political autonomy as a means to satisfy the norm of self-determination. Crimea is already an autonomous republic within Ukraine; more on that in a minute.

Nor does the International Court of Justice’s Advisory Opinion on the legality of Kosovo’s declaration of independence under international law recognize an international right of secession. It side-stepped the question of whether there is a right to secede under international law and framed the legal issue as one of domestic law. It was an advisory opinion that gave very little advice.

If the recent ICJ opinion does not provide much guidance, the tradition of state practice over the longer term does. The international community has not given much legal weight to referenda such as these. Back in the interwar period the Aaland Islands attempted to use a referendum to secede from Finland. In that case, an international commission of jurists brought in to assess the situation for the League of Nations found that there is no right of national groups to separate by the simple expression of a wish. And, particularly relevant today, the ability to choose secession by plebiscite must be granted by the state itself, that is, Ukraine. Otherwise, such a formulation would infringe upon the sovereign right of states. (See the Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question, League of Nations Off. J., Spec. Supp, No. 3, at 5-10 (1920)).

We have seen more recent examples of referenda, such as when Transnistria tried to use a plebiscite to claim independence from Moldova and possible unification with Russia. It received no support from the international community for that claim. (This tactical use of referenda seems to be used time and again by secessionist groups supported by Russia.)

It is important to keep in mind that the whole population of Ukraine has a right of self-determination, as well, and that includes the right not to have their country be torn asunder either by a local referendum and/or external military intervention.

The only place that could confer a right to Crimea to leave by referendum is the Ukrainian Constitution. As far as I can see, there is nothing there conferring the power to secede by referendum. Title X of the Ukrainian Constitution (revised link) concerns the Autonomous Republic of Crimea; there is no mention of secession by act of regional parliament or by local referendum.

Even the Constitution of the Autonomous Republic of Crimea defers to the Ukrainian Constitution. Article 1 of the Crimean Constitution states:

The Autonomous Republic of Crimea shall be an integral part of Ukraine and it shall solve, within the powers conferred upon it by the Constitution of Ukraine, any and all matters coming within its terms of reference.

The Autonomous Republic of Crimea shall also exercise any and all powers as may be delegated to it by Ukrainian laws pursuant to the Constitution of Ukraine.

By the way, as I understand it (and, again, I invite any readers with particular knowledge in this area to comment), the term “autonomous republic” had a specific meaning in the old Soviet constitutional law.  Under the Soviet constitution, there were “union republics” and “autonomous republics.” Union republics had the highest form of sovereignty within the USSR. When the USSR dissolved, the Union republics such as Russia, Moldova, Georgia, Azerbaijan and Ukraine became new sovereign states. The autonomous republics did not have that level of sovereignty; they were subsidiary entities.

I note that Russia has within it its own autonomous regions and republics. Yet, I see nothing indicating that they believe those entities can voluntarily secede from Russia.

Words like “self-determination” are rhetorically persuasive when kept vague but they also have actual legal meaning. One needs to be careful about setting up unreasonable expectations by claiming certain results (such as secession) as a matter of right, when no such right exists.

Such use of legal rhetoric does not help resolve conflicts; it only makes some people more intransigent and the conflict more intractable.

Does It Really Violate International Law for Crimea to Hold a Referendum on Secession?

by Julian Ku

I am looking forward to the contributions to our “insta-symposium” on Ukraine and international law. I don’t have a tremendous amount to add at this point, except to point out that President Obama has been aggressive about accusing Russia of violating international law and about the importance of international law generally.  This has gone beyond merely charging Russia with violation of the prohibitions on aggression and the use of force contained in the U.N. Charter.  In his statement today, he took aim at the proposed referendum in Crimea on joining Russia:

He also said that a proposed referendum in Ukraine’s Crimea region — one that, as proposed by proposed by pro-Russian Crimean lawmakers, would ask residents whether Crimea should be part of Ukraine or Russia — would “violate the Ukrainian constitution and violate international law.”

Any discussion about a referendum must include Ukraine’s legitimate government, Obama said. Washington considers Ukraine’s legitimate government to be the one installed by Parliament after last month’s ouster of President Viktor Yanukovych following months of protests.

Putting aside the Ukrainian law question, it is interesting that the U.S. government is specifically condemning the proposed referendum as a violation of international law.  Why exactly would the mere referendum (as opposed to the act of secession) violate international law?

I look forward to the views of our contributors and my fellow co-bloggers on this point, but on my first reading, the claim that the referendum would violate international law is undercut by the ICJ’s Advisory Opinion on Kosovo’s Declaration of Independence.  In that opinion, the ICJ found (among other things) that general international law does not prohibit unilateral declarations of independence. I don’t see how the proposed referendum is really any different from a unilateral declaration of independence, at least from the perspective of international law.  The authors of the “unilateral” declaration of independence did not consult Serbian authorities (much less get its consent). Like the declaration of independence, the referendum does not by itself “secede” Crimea from Ukraine under international law.  And unlike the declaration of independence, the referendum could find support (if other conditions are met) in the law of self-determination.

I am personally sympathetic to the Ukrainian government here. But I am not sure President Obama is right about this legal point, and even if he is, I am not sure the U.S. ought to be committing itself to the position that this referendum is illegal.   If there is a deal to be made here (as Henry Kissinger recommends here), this statement seems to make it harder to get to that deal.

I have one final thought on why this statement might make sense. There is one country who is probably more opposed to a referendum on secession than the U.S: that would be Russia, which can’t exactly be ready to endorse this possibility for Chechnya or other restive Russian regions. Nor are the Chinese going to be excited by this referendum (think what a referendum in Tibet or Xinjiang would look like).  The President may be counting on the Russians to put a stop to the referendum, and maybe this statement would help them do that.  I hope that is the strategy, anyway.

Ukraine Insta-Symposium: When does the Breach of a Status of Forces Agreement amount to an Act of Aggression? The Case of Ukraine and the Black Sea Fleet SOFA

by Aurel Sari

[Dr. Aurel Sari is a Lecturer in Law at the University of Exeter.]

Over the last few days, a growing number of commentators and international actors have denounced the deployment of Russian troops in Crimea not simply as a violation of the sovereignty and territorial integrity of the Ukraine, but as an act of aggression. At its extraordinary meeting held on 3 March 2014, the Council of the European Union condemned “the clear violation of Ukraine’s sovereignty and territorial integrity by acts of aggression by the Russian armed forces”. On 4 March 2014, United States Secretary of State John Kerry followed suit at a press briefing held at the US Embassy in Kiev.

A prima facie case of aggression

Assuming for the sake of argument that the activities of Russian armed forces in Crimea do not benefit from the valid consent of the Ukraine (the question is at least arguable: see here and here), a good case can indeed be made that their presence and conduct fits the archetypical example of aggression, namely the ‘invasion or attack by the armed forces of a State of the territory of another State’ as defined in Article 3(a) of United Nations General Assembly Resolution 3314 (XXIX) on the Definition of Aggression of 1974.

In so far as aggression is said to constitute ‘the most serious and dangerous form of the illegal use of force’ (Preamble, Definition of Aggression), the situation in Crimea must reach a certain threshold of gravity in order to qualify as an act of aggression. Neither the exact level of this threshold nor the facts on the ground are established beyond all reasonable doubt. However, it is safe to assume that the deployment of Russian forces to maintain public order in Crimea and to blockade and occupy Ukrainian military premises and assets in such a continuous and robust manner as we have seen in the last few days rises above the level of a ‘mere frontier incident’ or ‘less grave forms of the use of force’ (Nicaragua, paras 191 and 195). As such, these acts may reasonably be characterized as aggression on account of their scale and effects.

Article 3(e) of the Definition of Aggression

As reported earlier, the Ukrainian Association of International Law has come to the same conclusion in its recent appeal regarding the events in Crimea. Amongst other things, the Association suggests that the Russian Federation has committed an act of aggression as a result of being in material breach of the Agreement between Russia and Ukraine on the Status and Conditions of the Presence of the Russian Black Sea Fleet on the Territory of Ukraine of 8 of August 1997 (the Black Sea Fleet SOFA; see here in Russian). This argument raises an interesting question about the application of Article 3(e) of the Definition of Aggression. Pursuant to Article 3(e), the following acts shall constitute an act of aggression:

The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement.

Compared to some of the other acts listed in Article 3, the incidents envisaged under Article 3(e) of the Definition may appear relatively benign or even banal. Whereas an armed invasion, attack or bombardment will amount to an act of aggression only if it entails the use of force at a relatively high level of intensity, it seems that even a minor breach of a status of forces agreement could qualify as an act of aggression under Article 3(e) even if it causes no damage or destruction in the host State. Some commentators have therefore questioned whether Article 3(e) should have been included in the Definition at all.

The importance of contextual interpretation

State practice offers a number of examples where foreign armed forces are present abroad without the consent of the territorial State or another valid legal basis, yet their presence does not come within the Definition of Aggression. A case in point is the accidental ‘invasion’ of Liechtenstein by 170 Swiss troops who got lost in a military exercise in 2007. No one, it seems, has suggested that Switzerland has committed an act of aggression against Liechtenstein, despite the fact that this was not the first such intrusion. Despite the strict terms of Article 3(e), it seems that context is everything.

This point was certainly not lost on the drafters of the Definition of Aggression. The Six Power draft submitted on 25 March 1969 by the Australia, Canada, Italy, Japan, the United States and the United Kingdom defined aggression with reference to a prohibited purpose, thus giving rise to protracted debates as to whether the presence of an ‘animus aggressionis’ was a necessary element of aggression (see UN Doc A/7620). Eventually, any express references to aggressive intent were removed from the Definition. However, an implicit reference to intent was retained in Article 2 of the Definition, which declares that the Security Council may conclude that determining the prima facie existence of an act of aggression would not be justified ‘in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity.’ Although Article 2 is specifically addressed to the Security Council, Article 3 declares that it must be applied ‘subject to and in accordance with the provisions of article 2’. This point is further underlined by Article 8 of the Definition, which provides that ‘[i]n their interpretation and application the above provisions are interrelated and each provision should be construed in the context of the other provisions.’ Continue Reading…

Presidential Authority for Visa Restrictions (for Ukraine and Otherwise)

by Peter Spiro

President Obama issued an executive order this morning imposing entry bans on those responsible for actions that “undermine democratic processes or institutions in Ukraine,” “threaten the peace, security, stability, sovereignty, or territorial integrity of Ukraine,” or involve “misappropriation of state assets of Ukraine or of an economically significant entity in Ukraine.”

Sec. 2. I hereby find that the unrestricted immigrant and nonimmigrant entry into the United States of aliens determined to meet one or more of the criteria in subsection 1(a) of this order would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants or nonimmigrants, of such persons. Such persons shall be treated as persons covered by section 1 of Proclamation 8693 of July 24, 2011 (Suspension of Entry of Aliens Subject to United Nations Security Council Travel Bans and International Emergency Economic Powers Act Sanctions).

The power to specify covered individuals is delegated to the Secretary of State.

Obama is acting under section 212(f) of the Immigration and Nationality Act, which gives the President a blank check when it comes to imposing entry restrictions:

 Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Obama has used this power at least twice, both in the summer of 2011. He used the authority to ban the entry of serious human rights abusers with this proclamation. In the proclamation referenced in today’s executive order, he banned the entry of individuals subject to UN sanctions regimes. The latter is particularly interesting insofar as it appears to delegate immigration policy to an international organization, directly incorporating UN decisions into US law. In any case, the use of the 212(f) power is consistent with Obama’s orientation to maximally exploit delegated powers.

Insta-Symposium on the Crisis in Ukraine

by Chris Borgen and Roger Alford

We have invited several academic luminaries to post here at Opinio Juris over the next few days about the crisis in Ukraine, with particular emphasis on Russian intervention in Crimea. As we have done in the past with other symposiums, we also welcome young academics to submit guests posts for possible publication. We can’t guarantee we will publish every post submitted, but we would love to broaden the discussion to include new voices. So if you want to write a guest post for Opinio Juris about Ukraine of approximately 500 to 1500 words, please do so in the next couple days and send it to Jessica Dorsey and An Hertogen (their emails are linked to the right). Our editorial team will review the posts and publish those selected.

Lozano v. Montoya Alvarez: The Latest Supreme Court Treaty Interpretation Case

by Duncan Hollis

I’m a bit pressed for time, but wanted to offer a brief post calling readers’ attention to a US Supreme Court case that came down today — Lozano v. Montoya Alvarez.  In it, a unanimous Court interprets the Hague Convention on the Civil Aspects of International Child Abduction to not allow equitable tolling of the requirement that a child be automatically returned to the country from which s/he was abducted in the one year period after the child is taken.  The case involved two Colombian nationals living in England in 2008 when the mother leaves with her child for France and then New York (via a shelter for victims of domestic violence).  The father was unaware where his child had been abducted to, and thus could not file for the return remedy provided for by Article 12 of the treaty.  After much searching, he located her in the United States in November 2010.  At that point, however, the near automatic-right of return for one year provided via Article 12 no longer applied and the Convention imposes a different standard – wherein courts must order the return of the child ‘unless it is demonstrated that the child is now settled in its new environment’ (emphasis added).  Lower courts found that the child had become settled and thus she remained in the United States pending the outcome of this litigation.

In its opinion, the Court interpreted Article 12 not to contain any equitable tolling possibility with respect to the one year period for the automatic right of return.  In doing so, it declined to apply the equitable tolling doctrine available for federal statutes to treaties, offering in the process some general statements on its approach to treaty interpretation:

For treaties, which are primarily “‘compact[s] between independent nations,’” Medellín v. Texas,  552 U. S. 491, 505 (2008), our “duty [i]s to ascertain the intent of the parties” by looking to the document’s text and context, United States v. Choctaw Nation, 179 U. S. 494, 535 (1900); see also BG Group plc v. Republic of Argentina, post, at 10. We conclude that the parties to the Hague Convention did not intend equitable tolling to apply to the 1-year period in Article 12.

It is our “responsibility to read the treaty in a manner ‘consistent with the shared expectations of the contracting parties.’” Olympic Airways v. Husain, 540 U. S. 644, 650 (2004) (quoting Air France v. Saks, 470 U. S. 392, 399 (1985); emphasis added). Even if a background principle is relevant to the interpretation of federal statutes, it has no proper role in the interpretation of treaties unless that principle is shared by the parties to “an agreement among sovereign powers,” Zicherman v. Korean Air Lines Co., 516 U. S. 217, 226 (1996). Lozano has not identified a background principle of equitable tolling that is shared by the signatories to the Hague Convention. To the contrary, Lozano concedes that in the context of the Convention, “foreign courts have failed to adopt equitable tolling . . . because they lac[k] the presumption that we [have].” Tr. of Oral Arg. 19–20. While no signatory state’s court of last resort has resolved the question, intermediate courts of appeals in several states have rejected equitable tolling….

I don’t see anything too dramatically different in this reasoning than the Court’s earlier pronouncements.  More interesting, perhaps, is the Court’s unwillingness to let the existence of implementing legislation via federal statute impact its interpretative analysis:

It does not matter to this conclusion that Congress enacted a statute to implement the Hague Convention. See ICARA, 42 U. S. C. §§11601–11610. ICARA does not address the availability of equitable tolling. Nor does it purport to alter the Convention. See §11601(b)(2) (“The provisions of [ICARA] are in addition to and not in lieu of the provisions of the Convention”). In fact, Congress explicitly recognized “the need for uniform international interpretation of the Convention.” §11601(b)(3)(B). Congress’ mere enactment of implementing legislation did not somehow import background principles of American law into the treaty interpretation process, thereby altering our understanding of the treaty itself.

There’s more later in the opinion offering views on the negotiators’ intent as well as the object and purpose of the Hague Convention itself.  But, I’ll leave that for readers to comment on if anyone is inclined to do so.

Guest Post: Autonomous Weapons at Chatham House: It’s Bentham versus Kant

by Charles Blanchard

[Charles Blanchard served as General Counsel of the U.S. Air Force from 2009-2013, and General Counsel of the Army from1999-2001, is currently a partner at Arnold & Porter LLP.  He was a panelist at a Chatham House conference on autonomous weapons.]

In the past year, proposals for an autonomous weapons ban have gone from a fringe notion to an agenda item for the Convention on Conventional Weapons this year.  Last week, I joined a diverse group at a Chatham House conference to discuss the issue.  The participants included advocates of a ban, technologists on both sides of the issue, government officials, and Law of War experts.  The conference was surprisingly useful in illuminating lots of common ground, and more importantly it illuminated the different philosophical differences between proponents and skeptics of a ban.

The degree of agreement was actually surprising, but also very helpful:

  • There was broad agreement that except in very unique battle spaces (where the likelihood of civilians was nonexistent), deployment of autonomous weapon systems today would not be consistent with the requirements of International Humanitarian Law (IHL).  One panel concluded that the current technological limits, when combined with IHL, has effectively created a temporary moratorium on completely autonomous weapon system deployment.
  • Even the proponents of a ban would not oppose completely autonomous weapon systems that targeted other machines—such as might be the case with missile defense systems in the future—assuming that the technology develops sufficiently to meet IHL requirements. To be clear, however, the proponents of a ban would oppose even a purely defensive system that targeted tanks, airplanes or other platforms with human beings on board.
  • While the proponents of a ban advocate for a ban on development, they seem to agree that a very narrow definition of “development” is appropriate.  They would not attempt to limit research and development of even dual us civilian uses of autonomy, and would not even oppose development of semiautonomous weapons technology as long as a human remains in the loop.  The development ban would be imposed on the creation of completely autonomous systems.

So what was the disagreement?  It centered on the following question:  if technology ever developed to the point that machines were more capable than humans in complying with IHL than humans, should autonomous weapons be banned?  The skeptics of a ban, such as me, argued that it would be troubling to accept more civilian casualties that would then result from a ban.  The proponents, on the other hand, argued that it would violate notions of human dignity to let a machine to decide who to kill.

While one advocate calls the aversion to allowing machines to kill the “yuck” factor, a panel of ethicists and philosophers illuminated what this difference is really about:  the skeptics (like myself) are advocating a utilitarian ethical scheme (the greatest good for the greatest number), while the proponents are applying Kant’s categorical imperative that no human being should be used as an instrument.  While a utilitarian would be focused on whether civilian (and military) casualties would be less if autonomous weapons were used, a Kantian would object to the removal of humans from the lethal decisionmaking altogether.  One panelist noted that Germany’s highest court had rejected a purely utilitarian view in overturning a law that allowed hijacked planes to be shot down.  Even though the passengers on the plane would likely die anyway, and shooting down the plane would save other lives, the German court concluded that the statue violated human dignity.

So what are we to make of this philosophical dispute?  To a great degree, warfare and the laws of war have arisen out of utilitarian philosophical frameworks.  Indeed, one could argue that the very use of military force against other human beings (even for a righteous cause) violates Kant’s categorical imperative.  And the IHL concept of proportionality—that attack on a military target is permissible even if there will be civilian casualties as long as the civilian casualties are “proportional” to the military value of the target—is expressly utilitarian and inconsistent with Kant.

Nonetheless, the development of IHL is itself a history of a battle of humanitarian concepts (Kant) against utilitarianism. Arguably, the Geneva Gas Protocol in 1925 was a victory of humanitarian concepts over pure utilitarianism. And the more recent bans on land mines and cluster munitions are also clearly motivated by nonutilitarian concepts.

Now obviously there is much more at stake here than this narrow philosophical dispute.  Purely utilitarian concerns about strategic stability—based on the fear that purely autonomous systems will make it more likely that countries will go to war—can also lead to concerns about these weapons.  But at their root, the debate here is whether the principle that only humans should decide to kill other humans is sufficiently important that we are willing to accept more death as a result.

Who Speaks for Ukraine?

by Chris Borgen

[Expanding and moving this up from the comments section of my previous post.]

In a comment to the previous post, reader “Non liquet” noted that:

The UN Security Council Meeting was interesting in this regard today. Reportedly, the Russian Ambassador to the UN stated he received a letter from the former President of Ukraine dated 1 March requesting intervention of the Russian army in Ukraine.
It seems that the Russians believe they need to frame their own arguments regarding intervention with at least a fig leaf of international law.

“Non liquet” also linked to this Yahoo News article, which reported that:

“The country has plunged into chaos and anarchy,” Russian Ambassador Vitaly Churkin read from an unofficial translation of the letter while speaking to reporters after an emergency meeting of the U.N. Security Council. “The country is in the grip of outright terror and violence driven by the West.”

“People are persecuted on political and language grounds,” he read. “In this context, I appeal to the President of Russia Vladimir V. Putin to use the armed forces of the Russian Federation to re-establish the rule of law, peace, order, stability and to protect the people of Ukraine.”

“Non liquet” makes a good point that this is an attempt at a legal fig leaf: arguing that any Russian intervention is not an invasion, but rather a lawful response to a request for assistance by a  government.

But this is predicated on the idea that Yanukovich was empowered to ask for Russian assistance and military intervention. And thus we have the question of where is the actual government of Ukraine and the related legal issue of the recognition of governments.

In a U.S. State Department press conference this past Friday, the spokesperson said:

We are in the same place we have been in, which is that we don’t – we believe that Yanukovych has lost his legitimacy as he abdicated his responsibilities. As you know, he left Ukraine – or left Kyiv, and he has left a vacuum of leadership. So we continue to believe that he’s lost legitimacy and our focus remains on the path forward.

I take that as an indication that the the U.S. government would not take any further statements or actions by Yanukovich as being actions of the government of Ukraine, in part because the Yanukovich regime has fled and no longer has effective control of the country.

Russia, clearly, disagrees… (Continue reading)

The Crimea, Compliance, and the Constraint of International Law

by Chris Borgen

[I ended my previous post stating that I would next consider the options available to Russia, Ukraine, the EU, and the U.S. But then this conversation started… I’ll come back to the “next steps” question in a following post.]

Julian, Eric Posner, and others look to Russia’s intervention in Ukraine and its takeover of Crimea and see the limits of international law.  But, even in this case, international law and legal rhetoric play a broader, and perhaps more subtle, role in foreign policy than being a brick wall blocking invading armies. (And nowadays brick walls don’t work too well, either.)

Yes, there are the ongoing difficulties of enforcement in a pluralist international community (and, as Peter notes, there are also significant enforcement and compliance problems in domestic societies). But international law and legal discourse also frame expectations and viable policy options in such a way that can have greater long-term constraints on state practice than may be appreciated by international legal skeptics. However, even for this constraint to work, there still needs to be political will to enforce legal rules. And here I think we are all in agreement.

As I mentioned in my previous post, and in various other posts, Russia (and states, in general) cloaks its actions in “law talk” to foster a reputations of being a lawful actor, even-or perhaps especially-when it is not. (Andrew Guzman has written extensively on the role of reputation as a prod towards compliance to international rules. See Andrew T. Guzman, ‘Reputation and International Law,’ 34 Ga J Intl & Comp L 379 (2006).)  How states and other actors use language—what are the bounds of “self-defense,” when may a state legally intervene, what is “self-determination,” and so on—plays an essential role in defining expectations of how states and others will act.  How they use these terms inform other actors as to which arguments may or may not be made legitimately.

This is especially powerful in international law. Regardless as to whether Russia (or any other state) uses legal rhetoric, but especially when it does, it becomes bound-up by the expectation of legal compliance in general.  Invoke the law, get bound by the law.

Yet, just as the lack of a single sovereign means that enforcement is difficult, the pluralist nature of international law means that in most cases there is no final interpreter of what law is. Moreso than the ICJ, the most important interpreters of international law are the states themselves. Their interpretations are in part based on their short-term interests, but also on their long term concerns. These interpretations, in turn, affect international relations. Politics affects international law, which then affects politics, and so on.

International law has thus become a consensual vocabulary and grammar for how states talk about international relations. In short, how we talk about terms like “self-defense” can affect legal substance of what “self-defense” is. Legal rhetoric can frame policy options.

While Eric and Julian focused on the inability of international law to stop Russia from sending troops into Crimea, it is important to keep in mind that the use of force issue is embedded in a much bigger dialogue about the future of Ukraine… (Continue Reading)

Why Won’t the United States Call China Killings a Terrorist Attack?

by Julian Ku

While Russia was stealing all the attention over the weekend, a small group of assailants wielding knives killed at least 33 people and injured over a hundred in the main railway station of Kunming, China.  China’s government has called these “terrorist attacks,” and has hinted it is linked with Uighur separatists in China’s northwestern Xinjiang province.  But the failure of the U.S. State Department to use the term “terrorist” has drawn outrage in Chinese social media.

I understand the U.S. government’s reluctance to endorse the Chinese government’s description of these attacks, but I still think the term “terrorist” is perfectly appropriate for this situation.  The attackers indiscriminately killed and injured civilians in a train station, and there seems plenty of evidence that it is motivated by politics and ideology.  To be sure, the international definition of terrorism remains contested, but the US law definition seems applicable.

the term “international terrorism” means activities that—

(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;(B) appear to be intended—

(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping;
Look, I get that this definition is quite broad, and is controversial in many countries. And I get that the Uighurs have real grievances. But the US government is already on the record in favor of the broad definition. So why hold back from using the term for an act the US already calls unjustifiable?

Russia Reminds the World (and International Lawyers) of the Limits of International Law

by Julian Ku

I agree with Peter that the mere breach of the international law governing the use of force does not mean that all international law is useless and meaningless. But I don’t think Eric Posner’s pithy challenge to the international law academy on Ukraine can be so easily dismissed. International lawyers need, especially in this area, to provide a meaningful theory as to why international law affects state behavior, and why (as in this case) it seems to be having very little impact on Russia’s decision to use armed force in Ukraine.  Contra Peter, the fact that sometimes constitutional or corporate law rules are ignored or violated doesn’t really answer the question here.  When those norms are widely ignored (as with constitutional law rules in countries like China), then it is rational for actors in China to ignore those rules in most circumstances and most legal theorists would not call it “law” in any meaningful sense.

Which brings me to the Ukraine crisis.  I agree with Erik Voeten that international law and institutions will be helpful in other ways.  And I think Chris provides very helpful analysis of how international law can shape official state rhetoric.  But the fact remains that the international law restraining the use of armed force has utterly and completely failed to constrain Russia’s actions in  Ukraine.  This is more than simply adhering to the legislative veto. This is a body blow to a foundational piece of the international legal system.

In academic terms, the failure of the Charter  is evidence for both realists (who think international law never matters), but also for rational choice theorists like Posner, as to how international law really works.  Rational choice folks think that international law works best (in fact, works at all only) when states have a rational self-interest to cooperate around certain legal norms and institutions.  But where states no longer have such a rational self interest, states will depart from those legal norms.  Compliance with international law for the sake of complying with international law is naive and unrealistic.

The Russia-Ukraine crisis also impacts real-world policymaking. If international law, or at least the Charter’s rule on the use of force, is very weak or non-existent as a tool for restraining state action, then policymakers should not rely on the Charter rule as meaningful protection against aggression.
A strong military or a network of alliances would probably have been a better idea.  States must not overestimate the impact or force of this species of international law (as Ukraine’s new government seemed to do) when making decisions.  And states like the United States should be careful incorporating this rule into its domestic legal processes, or over-privileging its role in its own domestic public debate.

I may be biased as an American, but the U.S. has about the right balance on this. It does not ignore the Charter, but it does not treat the Charter as having too much independent significance except to the extent it affects the actions of other states (especially its allies).  The key thing to focus on in this crisis are the interests of the different states (and leading groups within states).  State interests are driving actions here, and the Charter violation seems to be doing almost now work.

The fact that the Charter is plainly being violated will not necessarily mean that Charter proponents like France and Germany will get tough with Russia (in fact, both are going the other way by opposing sanctions or any NATO consultations).  The fact that the Charter is plainly being violated will not mean China (another big Charter proponent) will do anything other than closely watch developments and urging “all sides to comply with international law” without naming any country.

International law can be, and often is, a very important tool for facilitating international and transnational cooperation.  But it is not doing much to resolve to Ukraine crisis, and international lawyers need to admit that.

Ukraine, International Law, and the Perfect Compliance Fallacy

by Peter Spiro

Eric Posner on international law and Ukraine (“exhaustively”, in his own description):

The international law commentariat has been pretty quiet about the most important geopolitical event so far this year. Hello? Anyone want to offer an opinion? Let me fill in the silence:

1. Russia’s military intervention in Ukraine violates international law.

2. No one is going to do anything about it.

International law is chimera, QED. (FWIW, the international law commentariat is starting to pipe up. In addition to Chris’ post below, see this primer from Ashley Deeks on Lawfare.) The move — a standard one among the anti-internationalists — implicitly idealizes other forms of law accepted as such. No system of law achieves perfect compliance; why should international law be any different?

Writing at the Monkey Cage, Eric Voeten finds the a tweeted version of the Perfect Compliance Fallacy

not terribly persuasive. Surely we would question a domestic legal system in which a select set of powerful actors can confidently and predictably ignore legal rules while insisting that these nonetheless apply to everyone else.

While pleading the 140-character defense, I take the point, at least as applied to common criminals who get away with it. But there are better analogies. I’m not in the corporate law world, but I’m willing to bet that there are some laws that big players get away with ignoring on a predictable basis. In the context of constitutional law, there are many contexts in which law isn’t enforceable against institutional players. One example: notwithstanding the Chadha decision, which declared the legislative veto unconstitutional, Congress and the President blithely persist with the practice. This 2009 Harvard Law Review article by Jack Goldsmith and Daryl Levinson does a good job exploding the argument that international law is somehow distinctive in facing an enforcement deficit.

Of course corporate and constitutional actors will never say they’re violating the law. They interpret it to achieve the appearance (plausible or not) of conformity with a set of norms that is accepted as law. Same with Putin, whose MFA will at some point offer a fuller-dress international law justification for its Ukraine moves. (Posner himself offers up some protips to the Russians here.) So it’s not like jaywalking. Russia will face penalties as a result of its illegal action here, penalties that themselves will be framed in law terms.

Russia’s Intervention in Ukraine: Legal Rhetoric and Military Tactics

by Chris Borgen

Saturday began with reports that Russia had seemingly used private security contractors to take control of the airport in Simferopol, Crimea. Then reports (like this one from CNN) of President Putin requesting from Russia’s Parliament an authorization to use military force in Ukraine because of “threats to the lives of Russian citizens and Russian military personnel based in the southern Crimean region.” Grigory Karasin, Putin’s official representative in the upper house of the Russian parliament, told the Russian government-funded news outlet Russia Today that The approval, which the president will receive, does not literally mean that this right will be used promptly.”

But, less than a day later it was becoming increasingly clear that those weren’t contractors. And Putin hadn’t been waiting. The New York Times:

Russian troops stripped of identifying insignia but using military vehicles bearing the license plates of Russia’s Black Sea force swarmed the major thoroughfares of Crimea, encircled government buildings, closed the main airport and seized communication hubs, solidifying what began on Friday as a covert effort to control the largely pro-Russian region.

So, why is Russia militarily intervening in Ukraine?  The quasi-legal arguments coming from Russia on Saturday  were the same basic arguments that Russia used in justifying its military intervention in Georgia in 2008. In that case, Russia argued that it was acting as a guarantor of peace in the region and had intervened to protect both South Ossetian civilians, Russian nationals, as well as the defense of its military units that were already in South Ossetia.

As for its actions in Ukraine, the reference to the defense  of the Russian forces in Sevastopol was probably meant to argue that Russia was not in violation of the Budapest Memorandum which states in paragraph 2:

The United States of America, the Russian Federation, and the United Kingdom of Great Britain and Northern Ireland, reaffirm their obligation to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine, and that none of their weapons will ever be used against Ukraine except in self-defense or otherwise in accordance with the Charter of the United Nations.

[Emphasis added.] I don’t think anything that has occurred in Ukraine rises to the point of Russia have a claim to Article 51 self-defense, but at this point, this isn’t about adjudicating claims, the Russian strategy is about misdirection and wrapping what it does do in a mantle of (seeming) legality. Well, not so much a mantle as a fig leaf.

Consequently, given the centrality of the norm of non-intervention, the self-defense argument sounds weak to my ears. But consider how the situation in Ukraine is being reported by the Russian-government  funded news source, Russia Today:

The move is aimed to settle the turmoil in the split country.

The upper house of the Russian parliament has voted in favor of sending troops to the Autonomous Republic of Crimea, which would ensure peace and order in the region “until the socio-political situation in the country is stabilized.

…The common notion was that since the power was seized in Kiev, the situation has only been deteriorating with radical nationalists rapidly coming to power and threatening the lives of those opposing their actions, most notably the Russian citizens living in Ukraine.

The developments follow an appeal by the Prime Minister of the Autonomous Republic of Crimea, Sergey Aksyonov, who requested that Russia to help cope with the crisis and ensure “peace and calm” in the region.

Russia as stabilizing force, reacting to a “deteriorating” situation in a “split country” where “radical nationalists” are threatening the lives of Russian citizens.  And this is in response to a request from the Prime Minister of the Autonomous Republic of Crimea. Keep your eye on increasing references to Crimea’s autonomy.

As in the Georgian intervention, Putin focuses the need to protect Russian nationals and the importance of self-defense of Russian troops. But, as mentioned above, I have seen no credible reports that either the Russian naval base in Sevastopol or the majority ethnic Russian population of Crimea was ever threatened by the Ukrainian government.

So why intervene now? Perhaps more relevant to the actual reason for Russia threatening to act at this point is the February 27 announcement by the new Ukrainian government of its interest in signing the Association Agreement with the EU that President Yanukovich refused to sign at the last minute, triggering the unrest that has convulsed Ukraine. Russia had previously mentioned the issue of secessionism, before there was even any unrest, in the run-up to the EU’s Vilnius summit, when Ukraine was originally supposed to sign the Association Agreement with the EU. At that time, back in September, Russian politicians issued warnings that if Ukraine does not reject the EU association program, it would run the risk of Russia supporting the partitioning of  Ukraine to support Russian nationals there. Civil unrest was not at issue then, only Ukraine agreeing to sign the Association Agreement.  While Yanukovich actively courted Putin, and ultimately set aside signing the Association Agreement, Putin as of this past week was facing an interim government in Kiev with which he had no easy political levers to pull. And they said they wanted to associate with the EU. So, military intervention as an extension of politics.

What we saw on these last couple of days was one more example of Russia actively using legal rhetoric as part of its politico-military strategy. This “law talk” does have two potential effects: (a) it makes arguments to which other countries in the international community attempt to respond,  and (b) it reassures the Russian public of the rightness of their cause.  News cycles on Saturday were focused on the Russian domestic process of Putin seeking an authorization to use force and the international discussions and debates over the legitimacy of Russia using force unilaterally.

Meanwhile, there was some confusion about what was happening “on the ground.” Just who are those camo-wearing armed men? Locals? Contractors?  Oh, no. The Russian military.

This misdirection and confusion may be Russia’s third reason for using legal rhetoric in this case. Putin is allegedly an avid chess player. This was a lesson in using legal rhetoric as a feint, while the real action was elsewhere on the board.  You only grasped the new situation once the pieces were already in place.  But, while this was a tactically deft set-piece using coordinated law talk and military force, international law has a way constraining actions when and where people least expect it.  The efficacy of Putin’s longer-term strategy remains to be seen. Of course, this depends on Russia’s goal.

Putin would doubtlessly most desire Ukraine to turn its back on the EU and join the Russian-led Eurasian Customs Union. Given the popular protests of the recent weeks, that is an all but impossible at this point. Short of that, Russia could attempt to impede Ukrainian association with the EU and remain a necessary party in any discussion of Ukraine’s future. So what might be  Russia’s next moves? And what may be the roles of international legal argument and international institutions in the strategies of Russia, Ukraine, the EU, and the U.S.?

I will consider these questions in my next post.

Events and Announcements: March 2, 2014

by Jessica Dorsey

Calls for Papers

  • The Center of Excellence “PluriCourts” at the University of Oslo, Faculty of Law, is organizing an international symposium on the Legitimate Role(s) of Human Rights Courts and Tribunals in Adjudicating Environmental Disputes in Oslo, 8 and 9 September 2014. Please send your abstract (word limit 500 words) to christina [dot] voigt [at] jus [dot] uio [dot] no. Deadline is 1 May 2014. Notification of acceptance will be given in the beginning of June 2014. The aim is to publish 5-6 selected papers in the Journal of Human Rights and the Environment. ContactProfessor Christina Voigt, coordinator for the environmental sector of PluriCourts (christina [dot] voigt [at] jus [dot] uio [dot] no or: 0047-228-50246 (office)).
  • The University of Amsterdam has issued a call for papers for a workshop on “Transnational Standards in the Domestic Legal Order: Authority and Legitimacy”, to be held on 24 October 2014. The workshop explores the evolving interactions between transnational standards and the domestic legal order from the perspectives of authority and legitimacy. The workshop is organized by the research project “Architecture of Postnational Rulemaking” at the University of Amsterdam. The deadline for the submission of proposal of max. 500 words is 18 May 2014. The sponsoring organizations will cover the speakers’ travelling and accommodation expenses. More information is available here (pdf). 


  • The ABA Section of International Law is Proud to Present: The 4th Annual “Live from L” The Office of the Legal Adviser, U.S. Department of State. Monday, March 10th, 2014 10:30 AM – 12:30 PM US EST, with the theme of The Geneva Framework for the Elimination of Syrian Chemical Weapons: The Role of the Office of the Legal Adviser. The Section of International Law is pleased to announce the fourth non-CLE webcast with the Office of the Legal Adviser from the Jacob Burns Moot Courtroom of the George Washington University Law School in Washington, D.C. Speakers include Mary E. McLeod, Acting Legal Adviser, U.S. Department of State; Newell Highsmith, Deputy Legal Adviser; Todd Buchwald, Assistant Legal Adviser, Office of United Nations Affairs; Mallory Stewart, Attorney Adviser, Office of Nonproliferation and Verification. It will be moderated by Sean D. Murphy, Member, U.N. International Law Commission, Patricia Roberts Harris Research Professor of Law, George Washington University Law School. You can attend the program in person at George Washington University Law School or from the convenience of your desk, by webcast or teleconference. Registration ($15 and law students can sign up for the webcast at no charge) information is here. If you have any questions, please email Jonathan Lewis at jonathan [dot] lewis [at] americanbar [dot] org or call the Section at 202-662-1660.

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

Weekly News Wrap: Monday, March 3, 2014

by Jessica Dorsey

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



  • A prominent Chinese dissident, Xia Yeliang, who moved to the United States after being fired by Peking University last year warned of the dangers of academic exchanges with China, saying Beijing sent spies as visiting scholars.
  • China accused the United States of widespread human rights abuses, including cyber-surveillance and child labor, in Beijing’s annual rebuttal of Washington’s criticism of its rights record.
  • North Korea has fired two short-range missiles into the sea off the east coast of the Korean peninsula, South Korea’s defense ministry has said, after launching similar rockets last week.


Middle East


Weekend Roundup: February 22-28, 2014

by An Hertogen

This week on Opinio Juris,  we closely followed the situation in Ukraine. Julian argued that international law principles are unlikely to provide a solution for the crisis since it would require the US and Russia respectively to defend or reject principles they have rejected or defended in other crises. He also reassured Daily Mail readers that the Budapest Memorandum does not oblige the US or the UK to defend Ukraine against a Russian invasion. Kevin in turn suggested to Ukraine’s Parliament to sort out the ICC’s jurisdiction over Ukraine before sending former President Yanukovych to The Hague for trial.

More on the ICC and its jurisdiction followed in Kevin’s analysis of jurisdictional issues in Reprieve‘s Drone strike communication to the ICC and his post recommending Susanne Mueller’s essay on Kenya and the ICC.

Julian’s other posts focused on Asia. He described how Japan’s historic wars with its neighbours continue to be fought in the court room with the Chinese government’s decision to back a lawsuit against Japanese companies that used Chinese citizens as forced laborers during World War II and a California lawsuit that brings Japan and Korea’s history wars to the US state and local level. He also looked into calls for a joint China-Taiwan policy over claims in the South and East China Seas.

In other posts, Kristen assessed the UN’s news “Rights Up Front” Action Plan; Peter pointed to an interesting experiment showing that information on treaty obligations can shift public opinion on solitary confinement; and Kevin thought the European Parliament’s resolution on drone strikes adopted a broad definition of jus ad bellum.

Finally, Jessica wrapped up the news and I listed events and announcements. Our London-based readers can see Kevin in action this coming Wednesday  when he’ll give a lecture at UCL on “What is an International Crime?”.

Have a nice weekend!