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New Essay on Perfidy and Permissible Ruses of War

by Kevin Jon Heller

Regular readers might remember a debate here and at Just Security (links here) in which I and a number of others debated whether it was perfidious for Mossad to use a booby-trapped civilian SUV to kill Imad Mughniyah, Hezbollah’s intelligence chief, in a Damascus suburb. I am pleased to announce that International Law Studies, the official journal of the US Naval War College, has just published an essay in which I explore the underlying legal issue at much greater length. Here is the brief abstract:

A number of scholars have claimed that it is inherently perfidious to kill an enemy soldier by disguising a military object as a civilian object. This essay disagrees, noting that conventional and customary IHL deem at least five military practices that involve making a military object appear to be a civilian object permissible ruses of war, not prohibited acts of perfidy: camouflage, ambush, cover, booby-traps, and landmines. The essay thus argues that attackers are free to disguise a military object as a civilian object as long as the civilian object in question does not receive special protection under IHL.

You can download the essay for free here. As you will see, although I disagreed with Rogier Bartels during the blog debate, I have since changed my mind — because of spatial limits conventional and customary IHL imposes on the use of booby-traps in particular, I now agree with Rogier that Mughniyah’s killing was, in fact, perfidious.

As always, comments more than welcome. My thanks to ILS for such an enjoyable publication experience!

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

by Nikolaos Ioannidis

[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, (more…)

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

by Bart Smit Duijzentkunst

[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.

(more…)

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

by Janos Ferencz

[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 (2nd 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 (more…)

Emerging Voices: Asia Infrastructure Investment Bank and the Global Financial Order

by Tsung-Ling Lee

[Tsung-Ling Lee, (S.J.D (Georgetown)), is a post-doctoral fellow at  National University of Singapore.]

“…I think we screwed up.” Former U.S. Secretary of State Madeline Albright‘s response to the Obama administration’s refusal to join the Asia Infrastructure Investment Bank (AIIB), the China-led initiative for financing infrastructure projects from Myanmar to Russia, suggests a deep anxiety about the world financial order. While many operational aspects and details about governance structure of the AIIB are yet to be publicly expressed, many commentators speculate that the AIIB may mark a new global economic order, particularly when viewed as part of Beijing’s broader economic agenda: the creation of new regional and global economic institutions, including the New Silk Road initiative and the BRICs-led New Development Bank, institutions which arguably will challenge the monopoly of the World Bank and the IMF — the two major international financial institutions within the Bretton Wood system.

The AIIB, which came into existence after China’s frustration at the slow reform process of the International Financial Institutions (IFIs), set out as its goal to finance developmental projects in Asia, with China providing the majority of capital. The IFI reform stagnates largely due to the resistance from the US Congress, refusing to support the change of the Banks’ shareholder voting system currently privileges the US. Many critics thus perceive the Bank as a channel for the first world to promote and embed neoliberal orthodoxy abroad. The AIIB initiative highlights a shifting role of the Bank in an increasingly crowded international economic landscape. Some commentators even go further and suggest that the US’s sphere of influence in the global policy domain of finance is diminishing decisively, evident by the diplomatic success of China in attracting many of the US’s key allies in joining the AIIB. This blog post analyzes the AIIB through the lens of the Third World Approaches to International Law (TWAIL).

The IFIs’ Development Model

Historically, TWAIL scholarship has been hostile towards IFIs, which are perceived as instrumental in protecting the interests of the first world at the expense of the third world. Critical TWAIL scholar B.S. Chimni, for instance, argues that the IFIs, as part of a growing network of international institutions, constitute a nascent global state that serves the interests of transnational capital and powerful states at the expense of third world states and peoples. Professor Makau Mutua, for example, argues that under the guise of sovereign equality, international law and institutions perpetuate existing structural inequality in furthering the interests of the first world. Despite that in theory both the IMF and the Bank are explicitly prohibited from engaging in any political affairs of its member states, in practice they have evolved from existing purely as apolitical institutions to having considerable powers in influencing economic policies of the developing countries.

One notable example of the IFIs’ penetrative power beyond global economic life is the Bank’s widely criticized Structural Adjustment Programs (SAPs) in the 1990s. As a condition of borrowing, countries that sought the IFIs’ financial assistance were required to embark upon radical economic reform: reducing government spending, privatizing state-own enterprises, liberalizing trade and foreign investment.

However, the neoliberal view embraced by the IFIs tends to neglect the specific social, economic, cultural and political contexts of the recipient state. The neglect has seen a widening of social inequalities, in addition to the apparent failure of SAPs in achieving its promised economic success. With many recipient states driven into debt, devastated by increased food and fuel prices, intensified unemployment, and crumbling of health services, the SAPs had worked in the interests of the first world, who are also the majority shareholders of the IFIs. With many recipient states worse off than they were initially, the uneven distribution of benefits and costs as consequences of the SAPs became a salient point of contention for critics of the IFIs, most vocally among TWAIL scholars. This is primarily because the IFIs reproduced the colonial experience for recipient states; they also relocate the decision-making process from recipient states to international civil servants. The latter is even more worrisome from a legal perspective, because the process occurred without an external check-and-balance, where the IFIs are hold responsible for their hegemony policies that have further disadvantaged weak states.

The apparent failings of the neoliberal development model endorsed by the IFIs had seen an eruption of political discontent that prompted a sharp policy turn within the IFIs. Beginning in the 1990s, the Bank embraced a governance paradigm that relies on stable institutional environment as a foundation to equitable distribution of wealth and to remedy poverty. This had seen the IFIs engaged in law reform in many recipient countries under the rubrics of “technical assistance”. The shift to the governance model also occurred as part of the IFIs’ attempt to salvage their institutional credibility. The Bank’s focus on governance has opened a greater space for structural intervention. The Bank now embarks on reform projects with greater emphases on improving environmental sustainability, embedding the rule of law, and enhancing participation in the decision-making process. The World Bank Institute’s Worldwide Governance Indicators and Doing Business, for instance, provide quantitative assessments on the openness of the regulatory environment for business. While both projects are not binding on the state, they are widely seen as authoritative, and increasingly are used as a proxy for the quality of a legal system.

In the TWAIL view, the law reform projects undertaken by the Bank, which focus specifically on the ability of legal system to facilitate market transaction, further entrench a capitalist order. Problematically, for TWAIL scholars, the economic integration of market occurs without much political contestation from the affected community. Thus, not only the governance model masks the Bank’s actual reach beyond its legitimate realm of economic regulation, such reach is arguably barred under Article IV(10) of the Bank’s Article of Agreement, which explicitly prohibits the Bank from interfering in the political affairs of its member states.

AIIB: Ending IFI hegemony? (more…)

Emerging Voices: The Right to a Remedy in Armed Conflict–International Humanitarian Law, Human Rights Law and the Principle of Systemic Integration

by Vito Todeschini

[Vito Todeschini (LL.M.(Ferrara University); E.MA (EIUC, Venice)) is a PhD Fellow at Aarhus University, Denmark.]

In 2013, the German Federal Constitutional Court and the Regional Court of Bonn issued their judgements in two cases ‒ Varvarin and Kunduz respectively ‒ concerning Germany’s participation in the NATO-led operations in Serbia/Kosovo and Afghanistan. These judgments confirm and exemplify a general trend in domestic case law, which denies that victims of violations of international humanitarian law (IHL) have a right to bring claims directly in the domestic courts of the allegedly responsible State (Gillard, pp. 37‒38). This finding is mainly based on the lack of an obligation on States under IHL to provide individuals with enforceable remedies against violations. Domestic courts, however, tend to overlook the complementary role that human rights law (HRL), the other legal framework governing armed conflicts, may play in this context.

This contribution explores this possibility, arguing that HRL may supplement IHL with regard to the right to a remedy. The analysis assumes the perspective that IHL and HRL are complementary legal frameworks. It further employs the principle of systemic integration, codified in Article 31(3)(c) VCLT, to interpret IHL in light of HRL. An alternative interpretation will be proposed, namely that victims of IHL violations should be allowed to bring claims in the allegedly responsible State’s courts on the basis of the right to a remedy under HRL.

The Right to a Remedy: HRL v. IHL

The right to a remedy is enshrined in several human rights treaties (inter alia, Articles 2(3) ICCPR; 13‒14 CAT; 13 ECHR; 25 ACHR; 7(1)(a) ACHPR), under which States Parties have an obligation to establish domestic remedies capable of finding and redressing human rights violations. The concept of remedy generally presents two dimensions: procedural and substantive. The procedural aspect regards the right to have access to a competent body, which may be judicial or administrative depending on the seriousness of the violation. The substantive dimension concerns the right to reparation, which includes restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition (Shelton, p. 7). Effectiveness is the distinctive element characterising a remedy. To be effective, a remedy must be accessible, enforceable, and provide redress if a violation is found (HRCtee GC31, paras. 15‒16). A final feature of remedies is their dependency on the previous infringement of another right.

The situation differs radically with regard to IHL. According to Articles 3 HC IV and 91 AP I, a State must provide compensation for the IHL violations it is responsible for. This rule is considered to be customary and applicable in both international and non-international armed conflicts. The drafting history of Article 3 HC IV shows that its objective is to provide victims of violations with the right to bring a claim directly against the responsible State (Kalshoven, pp. 830‒837). Yet, post-WWII domestic case law has generally departed from this original construction and interpreted such provision as conferring on States, not victims, the right to claim compensation (CIHL Study, pp. 544‒545; Zegveld, pp. 507‒512; Henn, pp. 617‒623). Additionally, there is no specific rule in IHL providing how a victim can enforce the right to reparation. It can be concluded that, at best, victims of IHL violations have a substantial right to reparation but not a procedural right to a remedy. In this respect, the question is whether HRL, which also applies in armed conflicts, may provide individuals with a procedural remedy for unlawful harm suffered in war time.

Systemic integration between IHL and HRL

The relationship between IHL and HRL may be considered from two perspectives: competition and complementarity. Generally, whenever two rules belonging to the different regimes are both applicable and in competition, human rights treaties are interpreted taking into account IHL rules (ICJ Nuclear Weapons, para. 25; HRCtee GC31, para. 11). For instance, the human rights to life and personal liberty in armed conflicts may be modified in light of IHL rules on targeting and internment (ICJ Nuclear Weapons, para. 25; ECtHR Hassan, paras. 102‒106). On the other hand, IHL and HRL rules are not always in competition. Despite being designed to pursue very different objectives ‒ conduct of warfare (IHL) and protection of individuals and groups (HRL) ‒ these bodies of law are also complementary and mutually reinforcing. They share certain common purposes, such as ensuring humane treatment of individuals at any time (HRCtee GC31, para. 11; IAComHR Abella, paras. 158‒160; Hampson and Salama, paras. 6‒8).

One aspect of the complementarity between IHL and HRL is that the provisions of one of these bodies of law may fill the gaps present in the other; for instance, as it is argued here, with respect to the right to a remedy. This operation is made possible by the principle of systemic integration codified in Article 31 VCLT, which provides that in the interpretation of an international norm “[t]here shall be taken into account, together with the context: [… ] (c) any relevant rules of international law applicable in the relations between the parties”. Systemic integration is a mandatory part of the interpretive process which demands that a rule of international law be construed taking into account all other international norms, deriving from any source, that are applicable in and relevant to a certain situation (ILC, paras. 413 ff.). The ICJ and human rights treaty bodies have, explicitly or implicitly, resorted to the principle of systemic integration when considering the concurrent application of IHL and HRL (d’Aspremont and Tranchez, pp. 238‒241). Since it allows to interpret one body of law in light of the other, the present analysis employs systemic integration as a legal-theoretical basis to provide remedies under HRL for violations of IHL.

Remedying violations in armed conflicts

In 2006, the German Federal Supreme Court (FSC) held in the Varvarin case that Articles 3 HC IV and 91 AP I do not grant individuals a right to claim reparation for IHL violations directly against a State, and that consequently victims must file any claims via their own government (paras. 10‒14). Although recognising the progressive acknowledgement of the international subjectivity of individuals that has occurred over time, the FSC denied that HRL had modified international law so as to grant individuals a general procedural right to bring claims for IHL violations in a foreign State’s domestic courts (paras. 7‒9, 14‒15). This interpretation has been confirmed in the aforementioned 2013 judgments by the German Federal Constitutional Court in the same case, and the Regional Court of Bonn in the Kunduz case.

It is submitted here that, while considering HRL as a relevant legal framework, the FSC failed to apply the principle of systemic integration in a satisfactory manner. The Court did not refer to the obligations to provided remedies contained in the treaties which Germany is party to, such as the ECHR or the ICCPR. A reasonable application of the principle would have at least required: a) taking into account the provisions on the right to a remedy included in the human rights treaties binding on Germany as well as relative treaty bodies’ jurisprudence; and b) considering whether these provisions have a bearing on the claims regarding IHL violations. Given that under IHL victims are entitled to reparation but have no procedural right to enforce it, it seems sensible for a domestic court to take into account the relevant provisions of HRL which oblige States to provide effective remedies against violations.

In this writer’s opinion, by resorting to the principle of systemic integration the FSC could have argued that the lack of an enforceable right to a remedy under IHL may be read in light of the obligation of States to provide an effective remedy under HRL. Accordingly, the Court could have filled such a gap by deciding that a victim of an IHL violation is entitled to bring a claim against the allegedly responsible State under the same procedures provided for to victims of human rights violations. In this perspective, whereas the breach of the norm would regard a substantive rule of IHL ‒ e.g., the prohibition to kill civilians ‒ the remedy, and therefore the enforcement of the right to reparation, would be exercised as provided for in HRL ‒ e.g., Article 2(3) ICCPR.

The principle of systemic integration is a mandatory part of the interpretive process. Its application to the relationship between IHL and HRL has marked the jurisprudence of several international bodies. This principle requires interpreting one body of law taking account of the other; hence, IHL may be read in light of HRL. Far from being a stretch of existing norms ‒ the reasoning draws on lex lata and not lex ferenda ‒ systemic integration may contribute to fill a major gap in IHL and give substance to the idea that IHL and HRL are, in certain respect, complementary. Besides, and most importantly, victims of IHL violations may be provided with a procedural remedy to enforce directly in domestic courts their right to reparation.

Emerging Voices: The Human Right to Water–Progress and Challenges for International Law and State Water Governance

by Scott McKenzie

[Scott McKenzie has a Juris Doctorate from the University of Iowa and is a PhD Student in Resource Management and Environmental Studies at the University of British Columbia.]

The human right to water has been making steady progress.  The right has become a fixture of international law and state constitutions frequently include the right.  Within a framework of legal pluralism, this post examines the relationship between the human right to water’s core obligation and specific normative goals and on-the-ground governance in two case studies.  Strong water governance is critical for residents who are dependent on state or private enterprise for the delivery of basic and essential services, meaning international law has a significant impact on daily habits for billions of people.  South Africa and Ireland want to provide water for their citizens but their approaches show striking differences.  South Africa constitutionally protects the right to water but implementation falls short, while Ireland’s new framework is beginning to reflect international guidelines but provides no domestic legal guarantee.  These experiences show value in a duel-track approach for international law, with expanded recognition of the human right at the global and state levels along with further detailed frameworks that solidify how citizens should experience these rights.

Many discussions concerning the human right to water focus on the international level.  This is important, but can miss nuance in governance. Legal pluralism recognizes multiple sources of law in addition to the state.  Pluralism has been defined as “a situation in which two or more legal systems coexist in the same social field.”  (link is to a .pdf) These systems come from different sources and have their own “foundations of legitimacy, validity, power and authority.”  This approach can be used to recognize the human right to water as a concept, and examine its implantation at various systemic levels as a means to improve the realization of the right in international law.

The Human Right to Water

A United Nations report found that worldwide, water related disease was responsible for 3.7 percent of all deaths. Despite agreement on the importance of access to clean water for human health and a diverse history of state and local scale implementation, the international legal and governance community has slowly addressed the right to water.

At the international law level, the human right to water can be divided into two elements: recognition of an obligation and a normative framework.  The obligation of the human right to water has been formulated in two ways. First, it has been “derived” from other codified rights such as health or quality of life because water is fundamental for the realization of those rights.  Second, it is mentioned explicitly in instruments such as the Convention on the Rights of the Child or United Nations Resolution 64/292 (“The General Assembly…Recognizes the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights”).

The normative framework of the human right was explained by the United Nations Committee on Economic, Social and Cultural Rights in General Comment 15.  This guidance for implementing the human right was not binding.  But, provides some structure for how the right should be realized; such as “in quantities…necessary” to meet basic needs or “affordable…for personal and domestic uses”.  However, fine-grained details such as the quantity necessary or the amount that can be charged are in debate and not clear in international law.  Some experts argue a lower quantity that covers basic human hydration, while higher estimates include hygiene, food-preparation, and sanitation.  Many experts gravitate towards 50 liters (L) per day. Similarity, affordability estimate range from 2-5% percent of household income but this aspect not yet settled.

South Africa – Constitutional protections fall short (more…)

U.S. Prepared to Launch Possibly Illegal Airstrikes Against Assad (But That’s OK)

by Julian Ku

Yesterday, the Wall Street Journal reported that President Obama has authorized U.S. military forces to use air power to defend  U.S.-trained Syrian rebels if those rebels are attacked by the Syrian government forces.

President Barack Obama has authorized using air power to defend a new U.S.-backed fighting force in Syria if it is attacked by Syrian government forces or other groups, raising the risk of the American military coming into direct conflict with the regime of President Bashar al-Assad.

“For offensive operations, it’s ISIS only. But if attacked, we’ll defend them against anyone who’s attacking them,” said a senior military official. “We’re not looking to engage the regime, but we’ve made a commitment to help defend these people.”

I totally understand the reason for this policy. If the U.S. is going to train and support Syrian forces, and give them air support, it makes sense to provide air cover against all attacks.  But the legality of this policy under U.S. law requires reliance on the kind of pure presidentialism President Obama is supposedly against.  And its legality under international law is pretty tenuous as well.

Under U.S. law, the President is sort-of-authorized to attack ISIS under a very sketchy interpretation of the 2001 Authorization for the Use of Military Force. It is a very sketchy interpretation, but even that sketchy interpretation can’t justify air strikes on the Syrian government in Syrian territory and in defense of rebels involved in the Syrian civil war.  So the only legal theory that would support the U.S. position here is reliance on the President’s inherent powers under Article II of the Constitution without any claim of congressional authorization.  That’s all well and good, but it is another nail in the coffin for the congressionalist legal theory embraced by Candidate Obama in 2007.  Remember that? When Obama said the Constitution required the President to go to Congress unless the President needed to act against an imminent attack?  It seems so long ago.

Under international law, the Russians are already pointing out that using military force in a foreign country against that country’s recognized government is a violation of the U.N. Charter since there is no Security Council authorization here.  There isn’t even a clear “humanitarian intervention” theory here, at least not if the air strikes are only defensive.

And yet, I have little doubt that the U.S. will carry out the strikes if needed and that there will be almost no fuss in the U.S. about its constitutionality.  Article II is alive and well in the Obama era.  There may be little bit more fuss overseas about its legality under international law, since that seems a tough case to make. But it is hard to imagine that international law will act as much of constraint here either.

Emerging Voices 2015 Starts This Week

by Jessica Dorsey

Both last year’s edition and 2013’s inaugural Emerging Voices symposium were quite successful, so this week we’re kicking off our third annual edition. Through the end of August, we will be bringing you a wide variety of posts written by graduate students, early-career practitioners and academics.

Tune in over the next several weeks if you’d like to read more about excuse in international criminal law, the right to a remedy in armed conflict, water rights in South Africa and Ireland and corporate social responsibility–to name just a few of the topics some of our contributors will cover. Please feel free, as usual, to weigh in on the discussion. Thanks for following us here on Opinio Juris–we hope you enjoy this third edition of our Emerging Voices Symposium!

Podcast Special! Why the Iran Deal is Constitutional, But Could Still End Up in U.S. Court

by Julian Ku

Due to my typical mid-summer lassitude (and a family vacation among the redwoods in California), I have not participated in the excellent legal blogosphere debate over the constitutionality of the Iran Nuclear Agreement which has included contributions from Jack Goldsmith, John Yoo, Michael Ramsey, John Bellinger, David Rivkin and many others.  Luckily for me, Prof. Jeffrey Rosen and the good folks at the National Constitution Center allowed me to share my thoughts in a podcast discussion with David Rivkin, who with his co-author Lee Casey, has argued in the WSJ that the Iran Deal is unconstitutional unless submitted as a treaty under Article II of the U.S. Constitution.  The 45-minute or so podcast can be found below, and I think it is worth listening in full.
But because I may not have made myself fully clear in the podcast, I try to summarize my thoughts here on why:  1) the Iran Deal does not have to be submitted as an Article II treaty; 2) the Iran Deal may allow individual U.S. states to impose sanctions on Iran which would likely lead to U.S. litigation.  David Rivkin does a great job explaining his views on the podcast, which are worth listening to in full as well.

A) In my view, the Iran Deal (or JCPOA) does not have to be submitted as an Article II treaty for at least two reasons.

First, the terms of the agreement, which describe its obligations as “voluntary”, indicate that it is a nonbinding “political commitment”.  Even the UN Security Council Resolution which supposedly enshrined the JCPOA into international law leaves some wiggle room for the U.S. allowing it to refuse to lift sanctions on Iran without violating the SC Resolution (or at least that is how John Bellinger reads it).

To be sure, there are indications that Iran itself doesn’t think the agreement is nonbinding and it does seem odd for the U.S. administration to make all this fuss over a 10 year agreement that is not binding, but (as Duncan has explained here and elsewhere), nonbinding political commitments are not unknown in diplomatic practice.

One example that I have been studying recently is the 1972 Shanghai Communique between the U.S. and China.   This seems a classic nonbinding diplomatic agreement which nonetheless had enormous consequences for US-China and global politics.  This and two later communiques remain crucial issues with respect to U.S. “promises” about the status of Taiwan and US promises to reduce arms sales to Taiwan.  It is not exactly the same as the Iran Deal, which purports to require its parties to take certain specific actions on certain dates, but it has some of the same flavor.

For this reason, I don’t think a promise by the President to commit the U.S. to do something beyond his term of office changes this analysis much (contra Mike Ramsey).  Presidents often promise on behalf of the U.S. to do things beyond his term, but as long as they are clear that these are political commitments, not legal ones, I don’t think a treaty is required.

Second, the JCPOA does not have to be submitted as a treaty because it doesn’t require the U.S. to change its domestic laws or even to change any domestic policy that is not already within the President’s constitutional or delegated statutory powers.  Crucially, the President has delegated authority under the various sanctions statutes to waive or lift those sanctions without getting further congressional approval.  That is by far the most important U.S. obligation under the JCPOA.  The idea of giving the president these powers to lift sanctions implies that he will seek out certain changes in behavior by the sanctioned governments and then use those promised changes (by say Iran, or in the recent past Burma) as a basis to lift the sanctions.

There is a cost for the U.S. government in going the nonbinding route.  It means that Iran should not feel itself “legally” bound to abide by the agreement, or at least those parts that are not enshrined in the UN Security Council Resolution.  For U.S. constitutional purposes, it also means that any future president can withdraw from these political commitments without any requirement of legal consultation with Congress or any concerns about violating international law.  A U.S. President is also empowered to withdraw from its UN Security Council commitments as well.  (Actually, the JCPOA itself makes it pretty easy for the U.S. president to terminate the agreement according to its own terms).  This seems only fair, however, and the administration clearly seems that this is a price worth paying to avoid the Article II treaty process.

B) State-level Sanctions on Iran Are Most Likely to End Up in Court

The individual states (e.g. New York or California) could impose certain sanctions on Iran after the deal goes into effect.  Such sanctions will probably face litigation from the U.S federal government which will claim that any state-level sanctions are preempted by the JCPOA.  But because the JCPOA is a nonbinding agreement, the preemptive effect of the JCPOA is weaker than of a full-scale treaty or executive agreement.  The outcome of such a case against state-level sanctions is far from clear and may require the federal court to consider the nature of the JCPOA more carefully. My guess is that they would find it constitutional, but might be inclined to uphold the state-level sanctions. That last finding is a close call and I would love to see that case, which could very well happen in the near future.

In short, although I don’t think the Iran Deal is a very good deal for the U.S. and I hope Congress blocks it, I don’t think the JCPOA is unconstitutional.  We will hopefully get some litigation on this point in the near future when some state rolls out its anti-Iran sanctions.  But opponents of the deal should focus on the politics (getting to 67 votes in the Senate and/or a Republican President) rather than the law.

Touchy, Touchy. What China’s Sensitivity About the Philippines Arbitration Reveals About the Strength of Its Legal Position

by Julian Ku

While I was on (my completely undeserved) vacation in California recently, I noticed more evidence that China’s government is becoming hyper-sensitive about criticism of its non-participation in the Philippines-China arbitration at the Hague.

First, a top U.S. government official stated at a conference on July 21 that, among other things, “…[W]hen they became parties to the Convention, both the Philippines and China agreed to its compulsory dispute settlement regime. Under this regime, the decision of the arbitral tribunal is legally binding on the parties to the dispute. It’s a treaty. In keeping with the rule of law, both the Philippines and China are obligated to abide by whatever decision may be rendered in the case, whether they like it or not. ”

On July 17, the New York Times published a rather bland staff editorial on the China-Philippines arbitration gently chiding China for failing to participate in that arbitral process.  Noting that China was likely to ignore the arbitration’s outcome, the NYT opined: “[China] should participate in the tribunal process if China wants to be recognized as a leader in a world that values the resolution of disputes within a legal framework.”

Both statements are pretty gentle, in my view, and Russel’s point about China’s obligation to abide by the arbitral tribunal’s rulings on jurisdiction is quite correct as a matter of law.  But it is China’s rather vociferous response that is more striking.

First, the Chinese Foreign Ministry sharply rejected Russel’s remarks.  Most curiously, it charged that the U.S. was, by “[a]ttempting to push forward the arbitration unilaterally initiated by the Philippines, [acting] like an ‘arbitrator outside the tribunal’, designating the direction for the arbitral tribunal established at the request of the Philippines.”  The spokesperson went on to say “This is inconsistent with the position the US side claims to uphold on issues concerning the South China Sea disputes.”

Second, the Chinese Ambassador to the U.S. wrote a letter to the editor of the NYT, calling its editorial “unfair.”  It also concluded that  “we do not believe that the arbitration court has jurisdiction, and as a member of United Nations Convention on the Law of the Sea, China is entitled to exclude any third-party compulsory settlement.”

I am sympathetic to China’s position that compulsory arbitration is not the way to go here, but as a legal matter, their views are hard to understand.  The UNCLOS does NOT give China the right to exclude any “third-party compulsory settlement.”  It does the opposite, and allows very limited exceptions to compulsory dispute resolution which may or may not apply here.  Furthermore, as numerous commentators have explained but which China continues to ignore, Article 288 of UNCLOS plainly gives the UNCLOS arbitral tribunal the final say on jurisdiction.  Russel was only repeating what is in the plain text of the treaty (UNCLOS) that China signed and ratified.

China’s sharply worded but legally incoherent responses are a sign that it is more nervous about the Philippines arbitration than it has let on in the past. China should just stop complaining about the arbitration and move on. It should have enough diplomatic, military, and political leverage to get past this.  It will get nowhere with its legal arguments.

Guest Post: Gone But Not Forgotten–The Ongoing Case of Jean Uwinkindi at the ICTR and MICT

by Oliver Windridge

[Oliver Windridge is a British lawyer specialising in international criminal and human rights law. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organisations affiliated to the author.]

A sometimes forgotten aspect of the International Criminal Tribunal for Rwanda’s work is the transfer of 10 of its 13 outstanding cases back to Rwanda and to France for domestic prosecution. To be precise, of the 13 outstanding cases, the ICTR have transferred two currently detained accused to France (Bucyibaruta and Munyeshyaka) and two to Rwanda (Uwinkindi and Munyagishari). The remaining nine accused remain at large, of which the ICTR transferred seven to Rwanda for domestic prosecution if and when they are arrested (Sikubwabo, Ryandikayo, Ntaganzwa, Ndimbati, Munyarugarama, Mpiranya, Kayishema), while the Bizimana and Kabuga cases remain at the ICTR, or rather the Mechanism for International Criminal Tribunals (MICT), the mechanism established to carry out functions, including trying outstanding cases, after the completion of the ICTR and ICTY mandates. But even if sometimes forgotten, transferred cases are likely to come back into the spotlight this year with MICT President Theodor Meron’s landmark 13 May 2015 decision to constitute a new referral chamber to examine whether Jean Uwinkindi, the first ICTR accused to be transferred to Rwanda, should remain in Rwanda for trial or be brought back under the auspices of the MICT for trial.

As background, in 2011 Uwinkindi became the first ICTR accused to be transferred to Rwanda for domestic prosecution under Rule 11 bis of the ICTR Rules of Procedure and Evidence. This transfer was a watershed for the ICTR, and in particular the ICTR Prosecutor, who had tried and failed on several previous occasions to transfer cases to Rwanda, all of which were subsequently tried at the ICTR ( See Munyakazi, Gatete, Kanyarukiga and Hategekimana).

Uwinkindi opposed the transfer mainly on fair trial concerns, however the Trial Chamber found that Rwanda had markedly improved its criminal justice system since denying previous applications for transfer mentioned above, and granted the Prosecution’s request to transfer, which was subsequently affirmed by the Appeals Chamber . In order to allay concerns over potential post-transfer issues, particularly over the availability and protection of witnesses, the transfer decision included a monthly monitoring system, designed to ensure any material violation of Uwinkindi’s fair trial rights in Rwanda would be brought to the attention of the ICTR President so that action, including possible revocation could be considered by the ICTR (and now MICT). The monitoring system also allowed the ICTR/MICT to examine any issues over future financial constraints including any failure by the Rwandan authorities to make counsel available or disburse funds. Therefore, since 2011 the ICTR/MICT has received monitoring reports on a monthly basis (all the reports can be accessed at the bottom of this page.). Importantly, in its 2011 referral decision the ICTR also granted Uwinkindi permanent standing to petition the ICTR/MICT.

On 16 September 2013, Uwinkindi filed a request for revocation of the 2011 referral decision, stating that the Ministry of Justice of Rwanda had failed to make the necessary funds available for his defence to allow his team to contact defence witnesses and hire defence staff and that his counsel had not been paid since February 2013. On 12 March 2014, MICT President Meron, sitting as a single judge, dismissed Uwinkindi’s request for revocation, finding that the submissions on various funding issues had been either rendered moot or were still the focus of ongoing negotiations and may be subject to further review within the Rwandan courts. President Meron did not however rule out the filing of further requests for revocation should the circumstances warrant.

In March 2015, the MICT monitor filed its March 2015 report, in which it stated, inter alia, (more…)