Recent Posts

Emerging Voices: The Role of Attribution Rules Under the Law of State Responsibility in Classifying Situations of Armed Conflict

[Remy Jorritsma (LL.M.) is a lecturer in public international law at the Department of International and European Law of Maastricht University. In September 2015 he will join the Max Planck Institute Luxembourg as a Research Fellow/PhD candidate. Contact at r.jorritsma@maastrichtuniversity.nl.] Armed conflicts involving e.g. Ukraine/Russia, Israel/Palestine, and the self-proclaimed Islamic State demonstrate legal ambiguities with regard to State responsibility as a...

Emerging Voices: The Law of the Sea as a Tool for Stability and Progress in the Eastern Mediterranean Sea

[Nikolaos A. Ioannidis is a PhD candidate in Public International Law (University of Bristol).] On the verge of the 21st century, the discovery of “Noa”, a gas field offshore Israel, reinvigorated the Eastern Mediterranean (East Med) states’ interest in the sea. Additional hydrocarbon deposits were found in the sea waters adjacent to Israel, Gaza, Cyprus and Egypt, while the United States Geological Survey estimated that the Levant Basin alone contains 1.7 million barrels of oil and 122 trillion cubic feet of natural gas. These developments made the regional states realize that, in order to avail themselves of the immense underwater wealth, they should first demarcate their maritime space in conformity with the law of the sea rules. This post analyses the maritime boundary delimitation agreements concluded so far in the East Med. It should be pointed out that these are the first EEZ delimitation agreements to have been signed in the Mediterranean Sea. Perhaps the most noteworthy features of these arrangements is the use of the median line and the adherence of Israel to the 1982 Law of the Sea Convention (LOSC or the Convention) rules on the EEZ and maritime delimitation, despite the fact that it is not a state-party to the Convention. In particular, four East Med states proceeded with the conclusion of bilateral maritime boundary delimitation agreements; the first delimitation agreement between Egypt and Cyprus in 2003 was followed by another two between Lebanon-Cyprus in 2007 (pending ratification by Lebanon); and Israel-Cyprus in 2010. All three agreements are concise and comprise five virtually identical articles each. Undoubtedly, maritime boundary delimitation is a pivotal function within the realm of the law of the sea. As the Arbitral Tribunal in the Bangladesh/India Award stressed:

“The importance of stable and definitive maritime boundaries is all the more essential when the exploration and exploitation of the resources of the continental shelf are at stake… the sovereign rights of coastal States, and therefore the maritime boundaries between them, must be determined with precision to allow for development and investment (emphasis added).”

Even though the East Med states maintain variant positions on maritime affairs, they have perceived the utility of the law of the sea apparatus in facilitating hydrocarbon exploration and exploitation, hence they decided to act within its ambit and collaborate with a view to gaining multiple profits from the energy windfall. Legal analysis of the agreements In the Preambles of these instruments, the contracting parties set forth the desire for cooperation, note the importance of EEZ delimitation “for the purpose of development” and recall the relevant LOSC provisions. The invocation of the LOSC in the Israeli-Cypriot agreement is of utmost significance as it not only illustrates the universal application of the Convention, but, most importantly, highlights the willingness of Israel to act in conformity with the LOSC, despite not being a party to the Convention, at least in terms of the provisions relevant to the EEZ. In any event, the EEZ concept forms part and parcel of customary international law, thus, even non-member states to the Convention are entitled to use and are obliged to observe the relevant rules [Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Judgment) [1982] ICJ Rep. 18, para. 100; Delimitation of the Maritime Boundary in the Gulf of Maine Area [1984] ICJ Rep. 246, para. 94; Continental Shelf (Libyan Arab Jamahiriyia/Malta) (Judgment) [1985] ICJ Rep. 13, para. 34]. Perforce Article 1(a) of each agreement, the maritime limit between the contracting states is the median line, namely a line “every point of which is equidistant from the nearest points on the baselines of the two Parties” (Article 15 LOSC). The mutual acceptance and use of the median line evinces the establishment of a regional practice in the East Med favouring this method, contrary to the efforts of Turkey, which has diachronically been rejecting the median line/equidistance principle; instead, Turkey has been advocating the vague equitable principles/relevant circumstances method, which provides that all relevant factors should be considered so as to reach an equitable result. Paragraphs b-d of Article 1 address the definition of the coordinates of the maritime boundaries. Furthermore,

Emerging Voices: What’s in a Mandate? Protecting Civilians in South Sudan

[Bart L. Smit Duijzentkunst recently received his PhD in international law from the University of Cambridge. He will be teaching international law at the Fletcher School of Law and Diplomacy, Tufts University, in the 2015 fall semester.] When, in December 2013, the United Nations Mission in South Sudan (UNMISS) opened its gates to thousands of civilians fleeing violence in the wake of an alleged coup, it also opened a new chapter on the UN’s commitment to the protection of civilians. Two decades earlier UN troops had received vague orders to protect “safe areas” in Bosnia and Rwanda—with disastrous consequences. Today UNMISS is explicitly authorised to use “all necessary means” to protect civilians. Yet while the language of UN mandates has evolved, so have developments on the ground. UN policy-makers originally envisioned protection of civilians measures as short-term, localised interventions to ensure the physical safety of persons in acute emergency situations. In South Sudan, however, 18 months after the outbreak of hostilities almost 140,000 people continue to reside in so-called “protection of civilians sites” across the country. As a result, UNMISS peacekeepers are not simply called upon to protect against external threats, but also to maintain public safety and security within protection of civilians sites. But does their mandate cover these activities? This post briefly discusses the evolution of peacekeeping mandates before offering some reflections on UNMISS’ authority. Protection of civilians mandates emerged in UN Security Council practice on the eve of the new millennium. In “traditional” mandates, the protection of civilians had been an afterthought, the fortuitous consequence of other peacekeeping objectives. For example, the mandate of UNPROFOR, operating in the Balkans in the mid 1990s, merely called upon the mission to deter attacks on so-called “safe areas”, to monitor cease-fires and to promote the withdrawal of military and paramilitary units from these areas. UNPROFOR could only take “all necessary measures”, including the use of force, in self-defence. Similarly, when UNAMIR in Rwanda was authorised to establish “secure humanitarian areas” in 1994, the UN Security Council recognised that the mission might be required to take action in self-defence to protect the areas, but did not explicitly authorise it to use force to do so. Propelled by the failures in Bosnia and Rwanda, and encouraged by the emerging idea that the international community held a “responsibility to protect” vulnerable populations, in 1999 the UN Security Council started to explore the protection of civilians as an objective of peacekeeping. It began passing dedicated resolutions and included protection of civilians clauses in operational mandates. These “robust” mandates reflect a recognition by the Security Council that impartiality of UN peacekeeping operations “is not the same as neutrality or equal treatment of all parties in all cases for all time” and that in certain circumstances “peacekeepers may not only be operationally justified in using force but morally compelled to do so.” In the same year, the UN Security Council vested certain missions with far-reaching administrative powers. UNMIK in Kosovo and UNTAET in East Timor were tasked to provide administrative functions while developing domestic institutions. In line with their “executive” mandates, these missions were empowered to draft local laws, implement domestic policies and administer justice, including arresting and sentencing alleged criminals, until these powers were transferred to local governments (in 2008 and 2002 respectively). With these differences between traditional, robust and executive mandates in mind, let’s return to the situation of UNMISS. Following South Sudan’s independence on 9 July 2011, UNMISS’ initial mandate focussed on state-building and conflict resolution efforts; the protection of civilians was buried deep in its sub-clauses. These political ambitions went up in flames with the outbreak of violence on 15 December 2013, when an alleged coup triggered a civil war between Government forces, led by President Salva Kiir, and the Sudan People’s Liberation Movement/Army – In Opposition (SPLM/A-IO), headed by former vice-President Riek Machar. In light of the persistent fighting and the massive influx of internally displaced persons and refugees onto UNMISS premises, the UN Security Council revised UNMISS’ mandate in November 2014 to make the protection of civilians its top priority. The new, robust mandate removes references to “imminent” threats, simply authorising UNMISS to “use all necessary means” to “protect civilians under threat of physical violence, irrespective of the source of such violence”. While housing, food and sanitation are principally provided by humanitarian organisations, UNMISS is in charge of “maintain[ing] public safety and security within and of UNMISS protection of civilians sites”. This is not the first time that the UN has provided shelter to civilians on its premises: from East Timor to Palestine, over the last decades civilians have flocked to UN bases in the face of violence. The UN has developed various policies to deal with these situations, which range from setting out general principles to providing specific guidelines on civilians seeking protection at UNMISS sites (the latter drafted prior to December 2013). All these documents stress the exceptional and temporary nature of these measures: they speak of protection in terms of hours or days, not weeks or months. Yet as the conflict in South Sudan persists and peace remains elusive, what might have seemed a temporary measure at first has turned into a prolonged situation with few prospects of resolution.

Emerging Voices: Powers of the Security Council to Make Determinations Under Article 39 of the Charter in Case of Cyber Operations

[Janos Ferencz, LL.M., is a Visiting Research Fellow at The Minerva Center for the Rule of Law under Extreme Conditions at the Faculty of Law and Department of Geography and Environmental Studies, University of Haifa and a Legal consultant at Panteia, the Netherlands.] The rapid proliferation of malicious cyber operations in recent years has underlined a growing concern about the risks presented by cyber space to international peace and security. The UN General Assembly noted in Resolution 69/28 (2014) the increasing concerns about the use of information technologies “for purposes that are inconsistent with the objectives of maintaining international stability and security” (UN Doc. A/Res/69/28, 2 December 2014, preambular para. 9). The importance of understanding when cyber operations represent a threat to international peace and security lies in the Security Council’s Chapter VII powers. Under Article 39 of the Charter, its powers to adopt non-forceful and forceful measures can only be activated once there is a determination that a cyber operation is a “threat to the peace, breach of the peace, or act of aggression.” The academia has paid only limited attention so far to analysing the conditions under which cyber operations can reach this level. This post aims to fill this gap by assessing whether, and if so, under what conditions can cyber operations trigger the applicability of Article 39 of the Charter. Cyber operations and the threshold of Article 39 A cyber operation must be understood as a broad concept, incorporating “the employment of cyber capabilities with the primary purpose of achieving objectives in or by the use of cyberspace” (Tallinn Manual, para. 2, p. 15). The Tallinn Manual experts unanimously agreed that the Security Council possesses the authority to determine that a cyber operation constitutes a threat to the peace, breach of the peace, or act of aggression (Tallinn Manual, Rule 18). The question remains, however, what are the prerequisite circumstances for such an operation to attain the level of gravity required by Article 39? A breach of the peace is generally characterized by armed hostilities between States, while an act of aggression manifests through the direct or indirect use of force. The concept of “threat to the peace” is the broadest and most frequently used one by the Security Council. From a cyber perspective, the two former scenarios, although theoretically possible, remain less likely to occur in practice since the Security Council has yet to make a determination that an event amounted to an act of aggression, and only a handful of situations were found to have breached the peace (e.g. the invasion of South Korea or Kuwait). For this reason (and taking into account also spatial limitations) this post focuses on the circumstances qualifying cyber operations as a threat to international peace and security. The Security Council has broad discretion under Article 39 to conclude that any kind of conduct or situation amounts to a threat to international peace. Finding the lowest common denominator across the Council’s past practice falls beyond the scope of this post but suffice it to say that a “threat to the peace” is deemed a political concept (Tadić Decision on Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 29) that builds on the Council’s interpretation of the concept of “peace”. Although the early practice of the Council has shown a narrow interpretation of this concept, viewing “peace” as the absence of use of force between States (J. Frowein, ‘Article 39’ in B. Simma (ed.) The Charter of the United Nations: A Commentary (2^nd edn., OUP, 2002), at p. 720), the recent practice of the Council indicates its willingness to broaden that interpretation. This is best evidenced by the Council’s acknowledgement that the HIV/AIDS pandemic can pose a security threat (SC Res. 1308, 17 July 2000) as well as the determination on the existence of a threat to international peace and security in West-Africa due to the outbreak of Ebola (SC Res. 2177, 18 September 2014). Nonetheless, the Council has always been careful to consider the impact of an internal situation upon regional or international stability. This criterion is common across all Article 39 determinations, and entails that any event or phenomena that undermines regional or international stability by creating a risk for unrest or hostilities in the short or medium term could fall within the purview of Article 39. Thus, a cyber operation will amount to a threat to peace within the meaning of Article 39 when it creates the threat of jeopardizing regional or international stability. Cyber operations targeting the critical infrastructure of a State will likely fulfill this threshold. Similarly, the US DoD concluded that "computer network attacks that caused widespread damage, economic disruption, and loss of life could well precipitate action by the Security Council” under Article 39 (US DoD, An Assessment of International Legal Issues in Information Operations, May 1999, p. 15). The cyber operation itself need not be a violation of international law per se for it to fall within the ambit of Article 39. This raises interesting questions about the exploitation of cyberspace for the purposes of espionage, which is, in principle, not prohibited by international law. This question is particularly relevant in the aftermath of Edward Snowden’s revelations regarding the NSA’s surveillance programme in 2013. In my view, there are two main approaches to assessing cyber espionage under Article 39. Firstly, relying on the threshold set out above, cyber espionage could represent a threat to international peace and security when it creates destabilizing effects on regional or international stability to the extent that a potential risk of unrest and hostilities between States will arise. One example would be recourse to dual-use malwares that not only steal information but also produce widespread destructive or disruptive effects. However, it is unlikely that data breaches on their own would fall within the scope of Article 39 unless there is a prospect for hostilities as a result of the breaches. Furthermore, due to the threat of veto by any permanent member of the Security Council, it remains unlikely that in the near future cyber espionage incidents will be formally declared a threat to international security. The alternative approach is to