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Guest Post: The Evolving Law of Foreign Official Immunity–Mortazavi and Bakhshi, Prince Nasser, and “Samantar II”

by Chimene Keitner

[Chimène Keitner is Harry & Lillian Research Chair and Professor of Law at UC Hastings. She is on Twitter @KeitnerLaw.] 

I look forward to discussing developments in the international law of non-state actor immunity on a panel on “Responsibility and Immunity in a Time of Chaos” at International Law Weekend this Saturday morning with co-panelists Kristen Boon and August Reinisch, moderated by Larry Johnson. For those of you who can’t attend, we thought we’d offer a taste of our discussion here on Opinio Juris.

In recent years, my research has focused on questions relating to the personal responsibility and ratione materiae immunity of individuals who act on behalf of states. The International Court of Justice has thus far managed to avoid dealing with the subject of ratione materiae immunity. As I recounted on Opinio Juris earlier this year, a Chamber of the European Court of Human Rights found in Jones v. United Kingdom that the grant of ratione materiae immunity for torture to Saudi officials by the U.K. State Immunity Act (SIA) did not interfere disproportionately with the applicants’ right of access to court.

Jurisprudence in other Commonwealth countries with state immunity acts that resemble the United Kingdom’s has largely tracked the House of Lords’s 2006 judgment in Jones v. Saudi Arabia. In that case, the House of Lords found that the SIA conferred immunity on foreign officials from civil proceedings for torture, even though its 1999 judgment in Pinochet (No. 3) established a lack of such immunity from criminal proceedings. As a matter of statutory interpretation, the distinction between criminal and civil proceedings finds some support in the explicit exclusion of criminal proceedings or prosecutions from the scope of the U.K., Canadian, and Australian state immunity acts. (For more on these cases, see here.) The Canadian Supreme Court’s October 10 judgment in Kazemi and Hashemi v. Islamic Republic of Iran reinforced this bifurcated approach by interpreting the Canadian SIA to provide immunity from civil proceedings to two named officials (Mortazavi and Bakhshi) who allegedly ordered, oversaw, and actively participated in the torture to death of Canadian photojournalist Zahra Kazemi.

Given the exclusion of criminal proceedings from the scope of the SIA, claims to immunity ratione materiae from prosecution for torture in U.K. courts have followed the different path set out in Pinochet (No. 3). As Oliver Windridge related here at Opinio Juris, the way has been cleared for a criminal investigation into claims that Prince Nasser bin Hamad Al Khalifa, the son of the King of Bahrain, was directly involved in the torture of three individuals in a prison in Bahrain. Although some reports indicated that the prince had “lost” his immunity, it would be more accurate to state that the U.K.’s Director of Public Prosecutions ultimately determined that the prince did not benefit from, and never had benefited from, ratione materiae immunity from criminal proceedings for torture. Oliver’s post also notes that, in January 2013, a Nepalese army officer was charged in the U.K. with intentionally inflicting severe pain or suffering as a public official on two individuals during the 2005 civil war in Nepal.

In the United States, the only prosecution for torture to date remains that of Chuckie Taylor, who was sentenced in 2009 to 97 years in prison for torture committed in Liberia. The Torture Victim Protection Act, 28 U.S.C. § 1350 note, explicitly creates a civil cause of action for torture or extrajudicial killing committed under color of foreign law. Unlike the state immunity acts at issue in the civil cases described above, the U.S. Foreign Sovereign Immunities Act (FSIA) does not exclude criminal proceedings. The Supreme Court determined in Samantar v. Yousuf (2010) that the FSIA does not apply to suits against individual officials in their personal capacity that seek damages from the defendant’s “own pockets,” in which the state is not the “real party in interest.” In the absence of a statute, foreign official immunity in U.S. courts is governed by the common law. (For a guide to analyzing immunity claims post-Samantar, see here.)

Curt Bradley and Jack Goldsmith argued against taking a U.S.-style approach to personal capacity vs. official capacity suits in a short article published before Samantar was decided. Although I have taken issue with parts of their historical analysis here, their basic point that different policy considerations are in play in designing domestic immunity regimes and international immunity regimes remains sound. Curt has blogged about post-Samantar cases here, and John Bellinger has been chronicling these developments as well. On October 14, the Supreme Court asked for the Solicitor General’s views on whether to review the Fourth Circuit’s determination on remand that there is no ratione materiae immunity for torture because it is a jus cogens violation.

Much conceptual and historical analysis remains to be done as we await the Solicitor General’s brief and the Supreme Court’s decision about whether to tackle the issue of ratione materiae immunity under the “common law” in Samantar II or a future case. Just as the Court should not transplant domestic immunity doctrines wholesale into the foreign official immunity context, so too should it resist parroting decisions that interpret state immunity acts with fundamentally different structures and provisions. It is more important to resolve these issues properly than it is to resolve them quickly or all at once—especially since, in the U.S. context, the Court’s examination of common law immunity in civil cases could have potentially unintended consequences for criminal proceedings as well.

Guest Post: Back to Square One after Sixty Years? The Tory Attack on the European Human Rights System

by Başak Çalı

[Başak Çalı is Associate Professor of International Law at Koç University Law School, Turkey, and a member of the Executive Board of the European Society of International Law]

We, in the ‘from Reykjavik to Vladivostok’ Europe, have grown accustomed to being proud of the European Human Rights System in the last forty or so years. We teach courses on European Human Rights Law that distill over ten thousand European Court of Human Rights judgments. We start our lectures on European Human Rights Law by pointing out that Europe, despite all its flaws, has the most effective regional system. We note that the European Court of Human Rights has been cited by the US Supreme Court.  We celebrate how the effective rights doctrine has recognised and empowered Irish catholic women trying to divorce, Cypriot gay men wishing to walk safely on the streets, Kurdish mothers looking for their disappeared sons, Bulgarian rape victims, Azeri journalists, British children wrongly placed in care and more, so many more. We underline the importance of the guidance that the European Court of Human Rights has provided to domestic judges, prosecutors, law enforcement agencies and legislators on how to take into account human rights when doing their respective jobs. We also salute the fact that the European Human Rights System has brought those us of who live between Reykjavik and Vladivostok together in a recognition of our common humanity, its frailty and our desire for a common dialogue on human rights regardless of our jurisdictional differences. That is why a judge in Diyarbakır, Turkey has given some thought to Mr. McCann and the British military operation in Gibraltar in 1988. Why a judge in Scotland has asked herself what does the case of Salduz mean for her to respect fair trial rights.  We also spend long hours in classrooms, courtrooms and parliaments discussing whether the European Court of Human Rights got the ‘margin of appreciation’ right this time.

Now all that celebration and all the hard and painstakingly incremental gains of the European Human Rights System, a system based on solidarity to reach the common purpose of the promotion of human rights of all, is under serious threat. Unlike the debates that have ensued in the last ten years, the danger is not the Court’s famed gigantic case-load (as has been captured in the cliche of the ‘victim of its own success’) or the slow implementation of its judgments by some of the worst offenders. One political group in one country is out to shake the very foundations of the European Human Rights System.
(more…)

Further Thoughts: It is Indeed Legal for a U.S. Court Hold Argentina in Contempt

by Julian Ku

I am fascinated by the ongoing Argentina debt litigation saga (and not just because it looks more and more like a train wreck), but because it is forcing U.S. courts to burrow into even fuzzier nooks and crannies of the Foreign Sovereign Immunities Act to figure out what exactly US litigants can do when suing an intransigent foreign sovereign like Argentina.  I promised I would revisit the question of whether the U.S. judge’s contempt order against Argentina on Monday was legal, and here is my further (although still somewhat brief) analysis.

1) It is legal and consistent with U.S. domestic law for a U.S. court to issue contempt sanctions against a foreign sovereign.  

The most recent authority for this proposition is the quite recent 2011 opinion from the U.S. Court of Appeals for the D.C. Circuit, F.G. Hemisphere Associates v. Congo.   In that case, the D.C. Circuit rejected the argument by Congo (and the U.S. Government) that contempt sanctions due to Congo’s refusal to comply with discovery orders would violate the FSIA.  Following the U.S. Court of Appeals for the Seventh Circuit in Autotech Techs. v. Integral Research & Dev., 499 F.3d 737, 744 (7th Cir.2007), the Court held that nothing in the text or the legislative history of the FSIA suggested that there was any limitation on the inherent judicial power to issue contempt sanctions. It also rejected contrary precedent from the U.S. Court of Appeals from the Fifth Circuit in Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417 (5th Cir. 2006).

I think the DC and Seventh Circuits are right that nothing in the text or the legislative history of the FSIA bars a judicial contempt order against a sovereign.

2. There is some authority for the proposition that judicial contempt orders against foreign sovereigns are not accepted under international law, but there is reason to question whether there is international consensus supporting this authority.

Argentina can, and did, rightly point to Article 24 of the Convention on Jurisdictional Immunities of States and their Property as authority against the legality of contempt sanctions against sovereigns.

Article 24
Privileges and immunities during court proceedings
1. Any failure or refusal by a State to comply with an order of a court of
another State enjoining it to perform or refrain from performing a specific act
or to produce any document or disclose any other information for the purposes
of a proceeding shall entail no consequences other than those which may result
from such conduct in relation to the merits of the case. In particular, no fine or
penalty shall be imposed on the State by reason of such failure or refusal.

I think that the language of this provision seems to pretty clearly cover the situation in the Argentina debt case.  But I am less sure that Argentina is correct to call Article 24 of the Convention a rule of customary international law.

U.S. briefs citing Article 24 have been careful to call this rule an “international norm or practice” rather than a rule of international law.  There are good reasons to be circumspect on this point. After all, the Convention on Jurisdictional Immunities has NOT come into force, and has NOT even been signed by either Argentina or the United States, and has only been ratified by 14 other countries.  Moreover, the particular rule in Article 24 banning all court contempt-like orders is much broader than the domestic laws of states like the U.S. (see above) and even those agreed to by European states in the European Convention on State Immunity.  Article 17 of the European Convention is focused only on contempt orders for failure to produce documents, not all contempt orders for any act by the foreign sovereign.

So in conclusion, I am very confident that U.S. domestic law does NOT preclude a contempt order of any kind against a foreign sovereign.  I am somewhat confident that there is no clear consensus under international law that all contempt orders (even those unrelated to discovery) are prohibited, although I do think Argentina has a stronger case on this front.  However, in U.S. law, a rule of customary international law cannot override a federal statute, especially when the international acceptance of that rule remains uncertain.

As a practical matter, I do wonder if this whole contempt kerfuffle is just symbolic. The contempt order adds to Argentina’s obligations to pay, but it doesn’t really make it any easier for the creditors to collect since Argentina’s non-commercial assets in the U.S. remains immune from collection. While Argentina’s government may be outraged, this contempt order doesn’t really change the overall dynamic of this case, which remains a standoff that neither side is winning.

 

Guest Post: The International Law Case for Democracy in Hong Kong

by Alvin Y.H. Cheung

[Alvin Y.H. Cheung is a Visiting Scholar at the US-Asia Law Institute at NYU School of Law.]

After two years of increasingly acrimonious debate over Hong Kong’s electoral reforms for 2017, the city’s pro-democracy movement has finally attracted global concern.  A consistent theme of international responses has been that Hong Kong’s democratisation should occur in accordance with the Basic Law, the city’s quasi-constitution.  The White House’s official response to a petition supporting democracy in Hong Kong was that it supported universal suffrage in Hong Kong “in accordance with the Basic Law.”  Similarly, Richard Graham MP, who heads the All Party Parliamentary Group on China, expressed the hope that further consultations would ensure a satisfactory choice that remained “within China’s Basic Law” (a misnomer that uncomfortably emphasised where the veto power over Hong Kong’s electoral reforms lay).  The implication of these statements is that the debate over how Hong Kong should choose its own leader is purely a municipal law matter.  UN Secretary-General Ban Ki-moon made that point even more forcefully when his spokesperson stated that the Hong Kong protests were “a domestic matter.”  These accounts, framed purely in domestic law terms, are misleading. The 1984 Sino-British Joint Declaration on the Question of Hong Kong (Joint Declaration) and the International Covenant on Civil and Political Rights (ICCPR) – properly interpreted – both require that the Hong Kong electorate have a genuine choice in its leader.

Chief Executive Elections in Hong Kong and the National People’s Congress Standing Committee (NPCSC) Decision of August 31, 2014 (2014 Decision)

Hong Kong’s Chief Executive is currently chosen by a 1,200-strong Election Committee, the composition of which is carefully designed to favour pro-business and pro-Beijing interests.  The “race” in which Leung himself was selected, although more competitive than previous “elections,” was heavily influenced by the Beijing Government and its representatives.  Although Article 45 of the Basic Law provided that the “ultimate aim” was for Hong Kong to elect its Chief Executive by universal suffrage, the deadline for universal suffrage has been repeatedly delayed by the NPCSC, which retains the power to interpret the Basic Law and to make decisions about the necessity of electoral reform.  The 2014 Decision ostensibly laid down the framework for universal suffrage in 2017, after months of consultation by the Hong Kong Government.  Instead, it provided the flashpoint for the student protests that in turn triggered the Umbrella Revolution. Under the 2014 Decision:

1)      The NPCSC confirmed that the Chief Executive owed responsibilities both to the Hong Kong Special Administrative Region and to the Beijing Government;
2)      As a result, any Chief Executive would be required to “love the country and love Hong Kong” – a phrase that, in practice, means that pro-democracy politicians will be barred from candidacy;
3)      Only 2 or 3 candidates would be permitted to run;
4)      Candidates would be chosen by a 1,200-strong Nominating Committee; and
5)      Support from at least half of the nominators would be required for candidacy.

The upshot of the 2014 Decision, and its various restrictions on nomination, is to ensure that only persons who Beijing deems politically palatable can run.  Lawrence Lessig aptly described the framework of the 2014 Decision as “Tweedism updated.”

The Joint Declaration

On its face, Article 3(4) of the Joint Declaration permits Hong Kong’s Chief Executive to be appointed after either elections, or consultations.  It contains – as Hong Kong’s current Chief Executive CY Leung wrote in the Financial Times – no specific prescriptions regarding the election or consultation process.  However, such an interpretation ignores basic principles of treaty interpretation.  The requirements under Article 31(1) of the Vienna Convention on the Law of Treaties (VCLT) – to which both China and the UK are parties – govern the interpretation of the Joint Declaration, yet have been routinely ignored by the Hong Kong and Beijing Governments. I argue that the Article 31(1) factors point towards an interpretation of the Joint Declaration that, contrary to Beijing’s assertions, imposes substantive requirements on how Hong Kong’s Chief Executive can be elected.

First, any interpretation of “elections” or “consultation” that permits a purely formal process in which the Hong Kong electorate “elects” a candidate pre-ordained by the Nominating Committee strips such terms of any reasonable meaning.  Second, the Joint Declaration was intended to guarantee that Hong Kong enjoyed a “high degree of autonomy,” except in foreign affairs and defence.  Giving the Hong Kong public a genuine choice in electing its Chief Executive can only be consistent with that purpose, without necessarily undermining Chinese sovereignty.  Third, to the extent that the Basic Law is acknowledged by both China and the UK to be subsequent practice in applying the Joint Declaration, there is agreement that elections should be by “universal suffrage.”  Fourth – and most importantly – the Joint Declaration also declares, in Chapter XIII of Annex I, that the provisions of the ICCPR applicable in Hong Kong shall remain in force after 1997.

The Applicability of ICCPR Article 25(b)

Under ICCPR Article 25(b), citizens enjoy the right “[to] vote and be elected at genuine periodic elections which shall be by universal and equal suffrage…” without unreasonable restrictions.  However, the applicability of Article 25(b) to Hong Kong has long been contentious.  When the UK acceded to the ICCPR on behalf of Hong Kong, it entered a reservation to Article 25(b).  Nonetheless, the Human Rights Committee has long taken the view that the reservation ceased to apply to elections for Hong Kong’s Legislative Council once an elected legislature was established.(Human Rights Comm., Concluding Observations of the Human Rights Comm (H.K.): U.K., U.N. Doc. CCPR/C/79/Add.57 (1995), ¶ 19.) The same reasoning would apply with equal force to Chief Executive elections; once the office of Chief Executive is filled through elections, such elections must comply with Article 25(b).  Curiously, the Committee’s Concluding Observations of 2013 in respect of Hong Kong appeared to accept that the reservation remained in force, without citing its previous Concluding Observations or explaining its departure from its previous position. (Human Rights Comm., Concluding Observations of the Human Rights Comm.: H.K., China, U.N. Doc. CCPR C/CHN-HKG/CO/3 (2013), ¶ 6.)

If one accepts that ICCPR Article 25(b) applies to Hong Kong’s Chief Executive elections, limits on the right to stand for election may not be subjected to unreasonable restrictions.  General Comment 25 adds that limits on the right to stand for election may only be based on “objective and reasonable criteria.”  The Human Rights Committee has consistently rejected political affiliation as an “objective and reasonable” criterion, (Chiiko Bwalya v Zambia, Commc’n No. 314/1988, U.N. Doc. CCPR/C/48/D/314/1988 (1993); Lukyanchik v Belarus, Commc’n No. 1391/05, U.N. Doc. CCPR/C/97/D/1392/2005; Sudalenko v Belarus, Commc’n No. 1354/05, U.N. Doc. CCPR/C/100/D/1354/2005.) including in a series of cases regarding arbitrary denial of registration to electoral candidates. (Lukyanchik and Sudalenko)  Indeed, by Beijing’s own admission, the pre-selection of candidates for political pliancy is not a criterion that could be legally defined.

Counter-Argument: The Source of Authority for the Basic Law

Shigong Qiang of Peking University has argued that Hong Kong’s “high level of autonomy” flows solely from authority from the Central Government, and that the Basic Law itself derives its authority solely from the PRC Constitution. (Shigong Qiang, 國際人權公約在香港:被誤讀的國際條約’ [The ICCPR in Hong Kong: The Misinterpreted International Treaty] Mingpao (HK, 25 Aug 2014).)  Yet this view does not appear to be universally shared even among Mainland academics.  The late Xiao Weiyun, one of the Mainland’s pre-eminent authorities on the Basic Law, conceded that the obligation to enact the Basic Law flowed from the Joint Declaration. (Xiao Weiyun, One Country Two Systems: An Account of the Drafting of the Basic Law 13(2001).  On Xiao see Jimmy Cheung, Basic Law ‘Guardian’ Dies at 78, S. China Morning Post (H.K.), Jul. 16, 2004.)  Nor does the text of the Basic Law support Qiang’s argument; the Preamble to the Basic Law states that it was enacted “to ensure the implementation of the basic policies of the [PRC] regarding Hong Kong.”  The “basic policies” referred to could only be those set out in Article 3 of, and Annex I to, the Joint Declaration.

Implications for the Electoral Reform Debate

If the Joint Declaration and ICCPR demand genuine universal suffrage in Hong Kong, then China has not merely a domestic law obligation to democratise Hong Kong, but an international law obligation.  This in turn empowers the UK, and potentially other parties to the ICCPR, to ensure China fulfils its obligations.  Writing in the Financial Times, Hong Kong’s last colonial governor Lord Patten of Barnes sought to remind Westminster that the United Kingdom had not merely a political and moral obligation to monitor developments in Hong Kong, but a legal obligation.  In light of ongoing developments, there is a compelling legal case for Whitehall to speak up in Hong Kong’s defence. Yet there are few signs that the United Kingdom’s long-standing policy of neglect will change.  In the wake of the 2014 Decision, the Foreign Office stated merely that the 2014 Decision would “disappoint” Hong Kong’s democrats, without any reference to the Joint Declaration.  Although Prime Minister David Cameron has now stated that he is “deeply concerned” about events in Hong Kong, it remains to be seen whether this will translate into a change in Foreign Office policy.

The Invention of the Khorasan Group and Non-Imminent Imminence

by Kevin Jon Heller

I will be back blogging regularly soon, but I want to call readers’ attention to a phenomenal new article at the Intercept by Glenn Greenwald and Murtaza Hussain about how the US government has cynically manipulated public fears of terrorism in order to justify its bombing campaign in Syria. Recall that Samantha Power — the UN Ambassador formerly known as a progressive — invoked the scary spectre of the Khorasan Group in her letter to the Security Council concerning the US’s supposed right to bomb terrorists in Syria in “self-defence.” As it turns out, not only is there literally no evidence that the Khorasan Group intends to launch an imminent attack on US interests — unless “imminent” is defined as “sometime before the Rapture” — there is also very little evidence that the Khorasan Group actually exists in a form that could threaten the US. Here is a snippet from the article on the latter point:

Even more remarkable, it turns out the very existence of an actual “Khorasan Group” was to some degree an invention of the American government. NBC’s Engel, the day after he reported on the U.S. Government’s claims about the group for Nightly News, seemed to have serious second thoughts about the group’s existence, tweeting “Syrian activists telling us they’ve never heard of Khorosan or its leader.”

Indeed, a NEXIS search for the group found almost no mentions of its name prior to the September 13 AP article based on anonymous officials. There was one oblique reference to it in a July 31 CNN op-ed by Peter Bergen. The other mention was an article in the LA Times from two weeks earlier about Pakistan which mentioned the group’s name as something quite different than how it’s being used now: as “the intelligence wing of the powerful Pakistani Taliban faction led by Hafiz Gul Bahadur.” Tim Shorrock noted that the name appears in a 2011 hacked Stratfor email published by WikiLeaks, referencing a Dawn article that depicts them as a Pakistan-based group which was fighting against and “expelled by” (not “led by”) Bahadur.

There are serious questions about whether the Khorasan Group even exists in any meaningful or identifiable manner. Aki Peritz, a CIA counterterrorism official until 2009, told Time: “I’d certainly never heard of this group while working at the agency,” while Obama’s former U.S. ambassador to Syria Robert Ford said: ”We used the term [Khorasan] inside the government, we don’t know where it came from…. All I know is that they don’t call themselves that.”

I don’t know for a fact that the Khorasan Group doesn’t exist. But it is profoundly troubling that the Obama administration has provided no evidence that it does — especially given that its case for the international legality of bombing Syria is based so heavily on the supposed threat the Khorasan Group poses to the “homeland.”

And let’s not forget that the Obama administration is doing everything it can to denude the concept of “self-defence” of all meaning. Here is the Intercept article on the “imminent” threat posed to the US by the maybe-existing Khorasan Group:

One senior American official on Wednesday described the Khorasan plotting as “aspirational” and said that there did not yet seem to be a concrete plan in the works.

Literally within a matter of days, we went from “perhaps in its final stages of planning its attack” (CNN) to “plotting as ‘aspirational’” and “there did not yet seem to be a concrete plan in the works” (NYT).

Late last week, Associated Press’ Ken Dilanian – the first to unveil the new Khorasan Product in mid-September – published a new story explaining that just days after bombing “Khorasan” targets in Syria, high-ranking U.S. officials seemingly backed off all their previous claims of an “imminent” threat from the group. Headlined “U.S. Officials Offer More Nuanced Take on Khorasan Threat,” it noted that “several U.S. officials told reporters this week that the group was in the final stages of planning an attack on the West, leaving the impression that such an attack was about to happen.” But now:

Senior U.S. officials offered a more nuanced picture Thursday of the threat they believe is posed by an al-Qaida cell in Syria targeted in military strikes this week, even as they defended the decision to attack the militants.

James Comey, the FBI director, and Rear Adm. John Kirby, the Pentagon spokesman, each acknowledged that the U.S. did not have precise intelligence about where or when the cell, known as the Khorasan Group, would attempt to strike a Western target. . . .

Kirby, briefing reporters at the Pentagon, said, “I don’t know that we can pin that down to a day or month or week or six months….We can have this debate about whether it was valid to hit them or not, or whether it was too soon or too late… We hit them. And I don’t think we need to throw up a dossier here to prove that these are bad dudes.”

Regarding claims that an attack was “imminent,” Comey said: “I don’t know exactly what that word means… ‘imminent’” — a rather consequential admission given that said imminence was used as the justification for launching military action in the first place.

According to the Obama administration, in short, the US is entitled to act in self-defence against “bad dudes” no matter when — or even if — those “bad dudes” might launch an armed attack against the US. This isn’t even the Bush administration’s “anticipatory self-defence.” This is, for lack of a better expression, “hypothetical self-defence.” Apparently, the US government believes it is entitled to use force against a non-state actor anywhere in the world as long as it can imagine a future state of affairs in which that actor would attack it.

The mind — and international law — reels.

Guest Post: What do Russian Lawyers Say about Crimea?

by Anton Moiseienko

[Anton Moiseienko received his LL.M. from the University of Cambridge and is currently a Ph.D. candidate at Queen Mary, University of London. All translations from Russian in this piece are his own. He is a citizen of Ukraine.]

Few people with any background in international law would doubt that Russia’s annexation of Crimea raises serious questions of compliance with international law. This has certainly been the position of contributors to Opinio Juris, for instance of Kristin Hausler and Robert McCorquodale, Rhodri Williams, and Chris Borgen. Elsewhere, Anne Peters has written a thoughtful article about Crimea’s secession.

One would expect the annexation of Crimea to spark equally lively discussions among Russian experts in international law, as well as prompt them to voice their views before foreign audiences. Importantly, in accordance with Article 15(4) of the Russian Constitution both “universally recognized norms of international law and international treaties” prevail over domestic laws. Thus, the validity of Crimea’s absorption by Russia under international law ought to be of immediate practical concern to Russian lawyers.

However, so far Russian academics and practitioners have largely remained in the shade, at least on the international arena, while Russian state officials felt free to interpret international law up to the point of redesigning it. Yet – what do we know about Russian lawyers’ attitudes to the annexation of Crimea?

One of the rare English-language documents produced by Russian experts in international law is a June 2014 appeal to the ILA by the President of the Russian Association of International Law, Prof. Anatoliy Kapustin. Before that, in April 2014 the same Association held a conference on the international law aspects of Crimea’s integration into Russia together with the Russian Academy of Diplomacy (in Russian). This event, which brought together senior Russian academics and diplomats, reflects the very close connections between the international law profession and the state apparatus that exist in Russia. Taken together, Prof. Kapustin’s letter and the April 2014 conference seem to espouse the views of Russia’s international law elite on Crimea.

Two main issues occupied the minds of Russian lawyers. First, they mused over the deep “historical connections” between Crimea and Russia. Second, they condemned the “cruel lawlessness” and persecution of Russians by the “Kiev regime” (which fits uneasily with the UN Human Rights Commissioner’s observations on human rights abuse in Crimea and separatist-controlled areas). These two basic claims, strongly reminiscent of the official Russian rhetoric and never questioned, were then framed as various legal and quasi-legal arguments.

Interestingly, both Prof. Kapustin and the conference participants went beyond relying on Kosovo. For instance, Prof. Stanislav Chernichenko referred to the restoration of Russia’s “historic rights” rather than to Crimea’s self-determination (although he did not discard the latter either). Indeed, he noted that Russia’s reliance on Kosovo’s precedent was inconsistent with Russia’s own position on Kosovo. Instead, he drew attention to India’s annexation of Goa in 1961 and the USSR’s annexation of South Sakhalin in the aftermath of World War II. Prof. Kapustin went farther back in history and referred in his letter to Northern Schleswig’s 1920 plebiscites for reunion with Denmark.

The annexation of Crimea, however, defies comparison with either India’s decolonization or territorial reconfigurations brought about by the World War II, let alone the Schleswig plebiscites conducted some 25 years before the UN Charter. In recognition of that, Prof. Chernichenko and his colleagues fell back on the alleged transgressions of the “Kiev regime”. Whereas in other circumstances Russia could attempt to remedy the “historic injustice” of Crimea’s separation by negotiations with Kiev, they claim that the “reunion” with Russia was the only viable option in the circumstances.

Dr. Elena Konnova, a guest participant from Belarus, questioned whether either the 1954 transfer of Crimea from Russia to Ukraine within the USSR or arrangements made after Ukraine’s independence in 1991 were incompatible with the jus cogens rule of self-determination. If yes, then in her opinion, international recognition of Ukraine’s borders could not remedy that defect. While a sensible attempt to rationalize her Russian colleagues’ sentiments, I wonder how far this argument would bring them. First, it is not obvious that self-determination of the Crimea’s “nation” (if at all existent) would require Russia and Ukraine to permit them to choose their new homeland upon the breakdown of the USSR, as opposed to granting Crimea autonomy within Ukraine. Second, one might think that allowing past violations of jus cogens to subvert modern borders would be destructive and would potentially nullify the restrictive approach of international law to remedial secession.

Some scholars attempted to assess the validity of the 2014 Crimea’s referendum under Ukrainian constitutional law. For example, Prof. Oleg Khlestov – an experienced diplomat who headed the Soviet delegation at the negotiations leading to the VCLT 1969 – suggested that the Constitution of Ukraine “was not in force” at the time of the referendum because of the “coup d’etat” in Kiev.

In his turn, Prof. Georgiy Velyaminov tried to “drop” from the Ukrainian Constitution Article 73 that only allows territorial changes to be approved by a statewide referendum: he thought it was inconsistent with the right to self-determination under international law and therefore invalid. Even if that inconsistency existed, such “rectification” of Ukraine’s Constitution is flawed. Ukraine is a dualist state and, pursuant to Article 9 of Ukraine’s Constitution, the Constitution prevails over any rules contained in international treaties that Ukraine may ratify.

With regard to international law, several participants of the April 2014 conference grappled with the issue of whether Crimea’s population is a “nation” for the purposes of the right to self-determination. In their view, the predominantly Russian population of the peninsula ought to qualify as a separate “nation”. As to the requirements for remedial secession, naturally they argued that no internal self-determination was possible for the residents of Crimea in “pro-fascist” Ukraine.

Apart from the more formal statements or events such as those described previously, some Russian lawyers chose to express their private opinions on Crimea in the Internet or in print. Grigoriy Vaypan (PhD Candidate at Moscow State University) wrote a piece for the Cambridge Journal of International and Comparative Law’s blog about the “highly doubtful” validity of Ukraine’s ousted ex-President’s invitation for Russia to invade Crimea before the referendum.

Yet other lawyers prefer Russian-language media and apparently address their concerns to domestic lay audience. Private practitioners Marat Davletbaev and Maria Isaeva regret (in Russian) the “archaic language of Russian diplomacy”:

“In Crimea’s case, Russia – regardless of whether it is right or wrong – communicates with the world in a hopelessly archaic language, as if it were unaware either of the criteria for establishing aggression, or of the serious tensions between the right to self-determination guaranteed by the UN Charter and territorial integrity, or of the rules on non-interference with internal affairs of states, or of the basic requirements for application of the R2P (responsibility to protect) doctrine, or of the definition of “annexation”.

This contrasts with the views of senior academics. Thus, Prof. Ivan Kotlyarov of the Academy of Internal Affairs is another proponent (in Russian) of the “imagine a fascist regime in Ukraine” approach to international law. He somewhat enigmatically argues that the right to self-determination is being denied to citizens of Ukraine (apparently by the government of Ukraine) and that a “genocide” is being perpetrated against the population of the Eastern Ukraine. Ria Novosti, a Russian news agency, quotes (in Russian) Prof. Tatyana Neshataeva of the Academy of Justice claiming that the right to self-determination trumps territorial integrity and, therefore, Crimea’s integration into Russia is lawful.

In conclusion, it would also be fair to note that any criticism of Russia’s annexation of Crimea largely remains a marginal idea in Russian legal media. For example, a well-known website Pravo.ru omits any references whatsoever to potential unlawfulness of the annexation when reporting legal developments in Crimea, e.g. introduction of Russian legislation and judicial reforms (both in Russian). As mentioned previously, this is particularly surprising in view of Article 15(4) of the Russian Constitution.

Does the Collective Self-Defense Justification Extend to Khorasan? If Not, Then Is There One?

by Julian Ku

I agree with Jens’ excellent post on the importance of the “unwilling or unable” standard to the US justification for legal strikes on non-state actors in Syria.  I agree this action may reveal state practice supporting (or rejecting) this legal justification.  I am curious whether the UK, France, or other states that may be participating in Syria strikes will embrace this theory. (I already know the Russians have roundly rejected this US justification). I also wonder whether this legal justification will weaken, as a policy matter, the ability of the US to effectively attack ISIS.

I do have one additional observation. Tacked on, almost as an afterthought, Ambassador Power’s letter notes that:

In addition, the United States has initiated military actions against al-Qaida elements in Syria known as the Khorasan Group to address terrorist threats that they pose to the United States and our partners and allies.”

The vague wording of the letter about Khorasan (threats to “the United States and our partners and allies”) as compared to the pretty specific language about ISIS’s attacks on Iraq  (“ to end the continuing attacks on Iraq, to protect Iraqi citizens, “) suggests that Khorasan is not currently engaged in armed attacks on Iraq.  This means that the U.S. is making a much broader international law claim than for its attacks on ISIS.  The U.S. is attacking Khorasan because, like Al Qaeda, it is a terrorist threat to the U.S. itself.  But no actual armed attacks have yet occurred (as far as I know).

It is therefore worth noting whether more  states object to the attacks on Khorasan than on ISIS, because the Khorasan attacks have a weaker international legal justification. My guess is that objecting states like Russia will not bother distinguishing between the two. But it will be interesting to see whether US allies will refuse to join strikes on Khorasan, even if they are willing to strike ISIS in Syria.

Will There Be a Scottish Precedent?

by Chris Borgen

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

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

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

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

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

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

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

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

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

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

by Christopher K. Connolly

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

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

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

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

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

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

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

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

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

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

by Milena Sterio

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

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

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

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

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

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

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

by Tom Sparks

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

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

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

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

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

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

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

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

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

by Jure Vidmar

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

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

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

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

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

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

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

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