In association with the International Commission of Jurists

November 2015

10 Nov

[Andrew Gou is an Associate Professor at Jilin University. A translation of this post is also being circulated in Chinese via wechat, and that can be found here.] Once upon a time, a man was traveling with a white horse. They were stopped at the entrance to town, for the town had a “no horses allowed” rule. The man argued that a white horse was not a horse, for white horse was a new concept defined by both the concepts of white and of horse, and thus different from the original concept of horse. However, the gatekeeper insisted that the white horse was still a horse and should consequently be excluded from the town. The white horse story highlights the importance of the identification of the subject matter to the application of rules. Even for such simple rule as “no horse allowed”, identifying the true subject matter is inevitable. A key aspect of the ongoing South China Sea arbitration is to identify whether the submissions fall within the delimitation exception in the UNCLOS and China’s declaration under the exception: China argues yes, while the Philippines disagrees. On 29 October, the Arbitral Tribunal delivered its award on jurisdiction. Issues relating to delimitation exception are addressed briefly in paragraphs 155-157. The Tribunal states that it is “not convinced” by China; it considers that a dispute concerning maritime entitlement is distinct from a dispute concerning the delimitation; the Philippines has not requested the Tribunal to delimit, and the Tribunal will not effect the delimitation of any boundary. Then in paragraphs 397-412 titled “[t]he Tribunal’s conclusions on its jurisdiction”, the Tribunal concludes that 14 submissions of the Philippines do not concern maritime delimitation. I respectfully disagree with the award. In particular, I disagree with the manners in which the Tribunal reaches its conclusions on the delimitation exception. Basic understanding of the delimitation exception Article 298.1(a) of the UNCLOS provides that a State may declare that it does not accept compulsory procedures with respect to “disputes concerning the interpretation or application of Articles 15, 74 and 83 relating to sea boundary delimitations”. In a recent article of mine (paras. 7-37), I tried to interpret the exception in accordance with Article 31 of the VCLT. Some basic findings are as follows: First, delimitation is a process, and the term delimitation in the exception shall be understood as such. “The task of delimitation consists in resolving the overlapping claims” (Maritime Delimitation in the Black Sea, para. 77), which indicates that delimitation is a process of identifying, weighing and effecting competing claims, not only the final determination of the boundary line. Second, according to their ordinary meaning, the good faith principle and relevant case law, the terms relating to and concerning in the language of the delimitation exception shall be interpreted non-restrictively. They carry the meaning of on and connected with, or having a bearing on. Thus, the delimitation exception covers not only disputes on the determination of sea boundaries but also disputes having a bearing on the entire delimitation process. With an Article 298.1(a) declaration, the UNCLOS compulsory procedures shall not apply to those disputes. The Philippines has wrongly specified the nature of the disputes My article (paras. 73-100) also examines the Philippines’ submissions, and concludes that each of them has a bearing on delimitation and is excluded from arbitration by the declaration of China. For instance, the Philippines asks the Tribunal to declare that China’s maritime claims based on its “nine dash line” are inconsistent with the UNCLOS and therefore invalid (award, paras. 4, 99). Apparently the Philippines is of the view that the line represents China’s maritime claims. If the view is correct, then disputes on the line are typically disputes on overlapping claims: they arose only when the Philippines raised maritime claims overlapping with China’s; they could be settled only in the process of delimitation. If the Philippines’ view is not correct, then it must be proved that there exists a dispute concerning the interpretation and application of the UNCLOS; otherwise, the Tribunal will have no jurisdiction.
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09 Nov

Marty Lederman last week posted a typically comprehensive treatment of the legal issues raised by Charlie Savage’s account of the administration decision to send forces into Pakistan to kill or capture Osama bin Laden. I’d earlier criticized the CIA’s apparent view that non-self-executing treaties are not legally binding on the President, and I take Marty plainly to agree with this principle. It’s no doubt true there is yet more to learn and understand about how the CIA’s position on this question has actually manifested itself in administration decision-making, but given what we already know, I’m not sure how to avoid the already deeply concerning conclusion that as a general matter the CIA seems to have badly misunderstood the legally binding nature of treaties the United States has signed and ratified. Where Marty and I appear to disagree is on the question (a question I set aside at the beginning of the last post) whether the United States’ incursion into Pakistan during the bin Laden mission violated Article 2(4) of the UN Charter (one of those legally binding (even if non-self-executing) treaty provisions) prohibiting the “use of force against the territorial integrity or political independence of any state.” There is of course vigorous ongoing disagreement (e.g. here and here, but this is only the tip of the iceberg) about the argument that there is any exception to the Art. 2(4) principle on the grounds that the target country is “unwilling or unable” to address the threat a non-state actor on its territory poses to the targeting country. But let’s ignore all that for now and just assume for the sake of argument that one embraces some “unwilling or unable” exception to the Article 2 prohibition. Even assuming as much, the argument the administration lawyers appear to have made in the bin Laden case goes a step beyond. In particular, because the United States did not want to risk alerting Pakistan of the operation in advance for fear that Pakistani officials would inform bin Laden, the lawyers would have had to argue that the targeting country could conclude on its own that the target country is “unwilling” to address the non-state actor threat, whether or not the country would in fact be willing if asked. In Marty’s conception, the argument would go as follows. (1) The “unwilling or unable” test “is best understood as an application of the jus ad bellum requirement of necessity.” (2) Because the United States had a reasonable and well-founded fear that elements of the Pakistani government would have tipped off bin Laden, making any subsequent intervention impossible, it was reasonable for the lawyers to conclude that the U.S. use of force “without prior Pakistani notification/coordination was, more likely than not, necessary to interdict the threat posed by bin Laden.” (emphasis mine) Put more directly, a target country can be deemed “unwilling” to address a non-state actor threat if the targeting country thinks it is “necessary” to do the targeting itself. Marty forthrightly notes that there is no current law that informs this argument – an artifact, it seems to me, of the reality that only a handful of countries have yet recognized the “unwilling or unable” exception at all. But that does not mean there is no law here that applies.
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09 Nov

[Shane Darcy is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway and the author of Judges, Law and War; the Judicial Development of International Humanitarian Law (Cambridge, 2014). This is Part 1 of a two-part series.] The recruitment and use of Palestinian collaborators by the Israeli authorities, and their ill-treatment and execution by Palestinian forces,...

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09 Nov

Your weekly selection of international law and international relations headlines from around the world: Africa Residents of Sierra Leone's capital held a candlelit vigil and celebrations to mark the end of an Ebola epidemic that has killed almost 4,000 people including more than 220 health workers since it began last year. The international community has condemned Burundi's government for inciting violence amid a...

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09 Nov

I'm delighted to announce that two good friends, Leiden's Larissa van den Herik (also one of my PhD supervisors!) and Manchester's Jean d'Aspremont, are the new General Editors for CUP's prestigious Cambridge Studies in International and Comparative Law book series, which celebrates its 70th birthday next year. Here is Larissa's statement: It is with great enthusiasm that I take on the general editorship of...

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09 Nov

Duncan, unlike David, is not primarily an international law scholar. But Kennedy's work on critical legal studies has had a profound influence on most left-wing international law scholars -- including me. So I wanted to post a link to a fascinating and wonderfully substantive interview with him conducted by Tor Krever, Carl Lisberger, and Max Utzschneider. I had no idea Kennedy worked...

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08 Nov

Call for Papers The Rapoport Center Human Rights Working Paper Series (WPS) is happy to announce a call for papers for the 2015 - 2016 academic year. The WPS seeks innovative papers of the highest quality by both researches and practitioners in the field of human rights. Acceptance to the WPS series provides authors with an opportunity to receive feedback on works in progress and stimulate...

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06 Nov

Professor Burns Weston passed away on October 28, 2015.  His daughter, Rebecca Weston, wrote the following obituary, which she passed on to us to circulate among the international law community.  I never had the privilege of meeting Professor Weston, but was a regular user of his textbooks (on both international law and international environmental law).  I know I speak for...

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06 Nov

In my post on biological and chemical weapons yesterday, I rejected the idea that Art. 8(2)(b)(xviii) "squarely appl[ies]" (Ralf Trapp) or "plainly applies" (Alex Whiting) to chemical and biological weapons by arguing that the drafters of the Rome Statute intended Art. 8(2)(b)(xviii), the war crime of “[e]mploying asphyxiating, poisonous or other gases,” to have precisely the kind of "special meaning" that Art. 31(4) of...

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05 Nov

Simon Lester of Worldtradelaw.net and the Cato Institute offered a very interesting pro-free trade argument against the inclusion of investor-state dispute settlement (ISDS) in trade agreements like the TransPacific Partnership or the Transatlantic Trade and Investment Partnership.  I disagree and we discussed and debated the issue today in a lively conversation hosted by Columbia University's Center for Sustainable Investment. ...

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