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The South China Sea Arbitration is Here! And China Will Not Be Happy

by Julian Ku

The much-anticipated long awaited South China Sea Arbitration award on the merits is here!  It is a slam-dunk, complete, utter, massive, total legal victory for the Philippines on all counts (lots of metaphors here, none are quite sufficient). Essentially, the tribunal ruled in favor of almost all of the Philippines’ claims in the arbitration.  Perhaps the most headline friendly result: The Nine Dash Line has been ruled inconsistent with China’s obligations under the UN Convention on the Law of the Sea.

I have been mostly reacting on twitter this morning, and I am working on some related posts here and elsewhere. This case brings to an end the long process initiated by the Philippines back in 2013 (links to my discussion of them are below).  We will be discussing and debating the impact of this award for a while.

Multi-Blog Series: The Role of the ICRC Commentaries in Understanding International Humanitarian Law

by Jessica Dorsey

In the second installment of episode 1 in this multi-blog series on the updated Commentaries, Professor Sean Murphy responds to Jean-Marie Henckaerts first post on locating the commentaries in the international legal landscape.

Sean D. Murphy, Professor of International Law at George Washington University and Member of the U.N. International Law Commission, considers the role of the ICRC commentaries as a matter of treaty law, customary international law, and practical lawyering.

Taiz, Yemen - Two men drive through the area, where snipers have been present since the intense hostilities started there. ©Wael Al Absi/ICRC

Taiz, Yemen–Two men drive through the area where snipers have been present since the intense hostilities started there. ©Wael al Absi/ICRC

Read the full post on the Intercross Blog and stay tuned for the third installment, coming soon.

This series is brought to you by ICRC’s Humanitarian Law and Policy Blog, Intercross and Opinio Juris.

Is the Requirement That Crimes Against Humanity Be Committed Against a “Civilian Population” Really Necessary?

by Joanna Nicholson

[Dr. Joanna Nicholson is a Researcher at PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order at the University of Oslo.]

For a crime to amount to a crime against humanity, it must be shown to have been part of a bigger picture, namely part of a widespread or systematic attack against a civilian population. The requirement that an attack be against a “civilian population” has created some uncertainty as to whether persons who are hors de combat can be victims of the crime.

Case law is peppered with discussion as to whether those who are hors de combat are “civilians” or constitute members of the “civilian population” for the purposes of crimes against humanity. Careful examination of this jurisprudence reveals that international criminal courts and tribunals, particularly the ad hoc tribunals, have taken different approaches to this issue.

The International Criminal Tribunal for the former Yugoslavia’s (ICTY) case law has taken a meandering path. Some cases have endeavoured to include those who are hors de combat within the notion of “civilian” (see for example, Kordić and Čerkez (.pdf), para. 421), whereas others have sought to include them within the notion of “civilian population” (see, for example, Naletilić and Martinović(.pdf), para. 235). The issue was ultimately resolved by the ICTY Appeals Chamber in two cases: Martić (.pdf) and Mrškić (.pdf). The Trial Chambers in both cases (rightly) held that persons hors de combat are not civilian for the purposes of Article 5 of the ICTY Statute (the provision of the Statute concerning crimes against humanity). This was confirmed on appeal. However, both Appeals Chambers held that the chapeau requirement of Article 5 does not require that the individual criminal acts be committed against civilians, but rather that it serves to emphasise the collective nature of the crime. Thus, providing the chapeau requirement is fulfilled, and that there has been a widespread and systematic attack against a civilian population, individual victims who are hors de combat can be victims of the crime (Martić Appeal Judgment paras 303-314; Mrškić Appeal Judgment, para. 33).

The International Criminal Tribunal for Rwanda (ICTR) has taken a different approach. In Akayesu (.pdf), the Trial Chamber found that persons hors de combat are members of the civilian population for the purposes of crimes against humanity.  This finding was followed, with zero to minimal discussion, in subsequent cases before the tribunal.

The different approaches of the ad hoc tribunals on this matter can lead to very different outcomes. Adopting the ICTY’s approach means that an attack directed purely against persons hors de combat does not amount to a crime against humanity. Indeed, this was found to have been the case in Mrškić, where the attack had been solely against the persons who were hors de combat and did not form part of a wider attack against a civilian population. The Appeals Chamber held that the attack did not therefore amount to a crime against humanity.

Following the ICTR’s approach, on the other hand, would mean that persons hors de combat are included within the notion of “civilian population” and constitute victims of the crime even if the attack is only against them.  Thus, the persons hors de combat in the Mrškić case would have been eligible victims of the crime.

If one weighs up the two different approaches, the ICTY’s presents itself as being the most logical and thoroughly considered. Nevertheless, it leaves a certain amount of dissatisfaction, and it makes one wonder whether there is a need for a “civilian population” element within the definition of crimes against humanity at all.

As it stands at the moment, following the ICTY approach at least, the civilian population requirement means that attacks that are purely against persons hors de combat cannot amount to crimes against humanity. Certainly, such acts could be prosecuted as war crimes, as indeed happened in the Mrškić case, but this fails to adequately reflect the gravity of the offence, and ignores the symbolic nature that a charge of crimes against humanity has.

The reference to “civilian population” does help to emphasise the collective nature of the crime, but this is arguably adequately reflected in the “widespread or systematic attack” element.  Future definitions of the crime could omit reference to a “civilian” population in the chapeau requirement, replacing it with “population.” Naturally, any court interpreting the chapeau requirement would have to bear IHL in mind and ensure that legitimate attacks against military personnel were not erroneously found to be crimes against humanity.

The “civilian population” requirement should no longer be considered a necessary element to find an act is a crime against humanity. Discarding the civilian population” requirement would mean that attacks that are purely against persons hors de combat can be prosecuted as crimes against humanity and can receive the recognition they deserve.

The NY Times on Bitcoins and China

by Chris Borgen

William Gibson, repurposing a Gertrude Stein quip, said about cyberspace “there’s no there, there” capturing the ethos of the internet as a place beyond the physical world of borders and jurisdiction.  Bitcoin melded cryptography and networked processing to attempt to make a currency that was not based in or controlled by any state.

But the internet is based on servers and fiber-optic cable and telecom switching stations that are firmly rooted in the physical world.  The cloud is made out of metal and plastic and glass. And as for Bitcoin, there increasingly is a there, there. And “there” is China. (For a quick background on Bitcoin, see this video, which explains how Bitcoin builds a payment system that replaces trust and personal allegiance with “mathematical confidence” or  this article.)

The New York Times reports how Chinese companies have come to dominate the production of Bitcoins:

In its early conception, Bitcoin was to exist beyond the control of any single government or country. It would be based everywhere and nowhere.

Yet despite the talk of a borderless currency, a handful of Chinese companies have effectively assumed majority control of the Bitcoin network. They have done so through canny investments and vast farms of computer servers dispersed around the country. The American delegation flew to Beijing because that was where much of the Bitcoin power was concentrated…

…But China’s clout is raising worries about Bitcoin’s independence and decentralization, which was supposed to give the technology freedom from the sort of government crackdowns and interventions that are commonplace in the Chinese financial world.

“The concentration in a single jurisdiction does not bode well,” said Emin Gun Sirer, a professor at Cornell and a Bitcoin researcher. “We need to pay attention to these things if we want decentralization to be a meaningful thing.”

What follows is a story considering the possible factors that contributed to Bitcoin’s popularity in China (including attempts to avoid government financial regulators and the popularity of online gambling) which, in turn, incentivized large investments in Bitcoin businesses, leading to the situation where “over 70 percent of the transactions on the Bitcoin network were going through just four Chinese companies…”

And, through it all, there is the question as to whether these and other Chinese companies even want to exercise leadership over Bitcoin at all. There is an interesting question of the psychology of power. The frame of the NY Times story is a meeting that took place in China between US and Chinese corporate leaders. The Americans flew to China because, as the Times put it, “that was where much of the Bitcoin power was concentrated.” They tried to persuade Chinese leadership to make certain changes to Bitcoin but were unable to do so. They also expressed frustration at the reluctance of the Chinese companies to exercise leadership in the industry. But then consider this description by one of the Chinese CEO of the same meeting:

“It was almost like imperialistic Westerners coming to China and telling us what to do… There has been a history on this. The Chinese people have long memories.”

Same room; completely different views of the dynamics of the meeting.

So, before we deploy too much post-modern, post-Westphalian, post-everything analysis to cryptocurrencies like Bitcoin or to the internet more generally, perhaps we need to  give jurisdiction, territory, memory, and psychology a second look. There is a there, there.

The Presumption Against Extraterritoriality Still Does Not Apply to Jurisdictional Statutes

by William S. Dodge

[William S. Dodge is Martin Luther King, Jr. Professor of Law at the University of California, Davis, School of Law and Co-Reporter for the Restatement (Fourth) of Foreign Relations Law: Jurisdiction. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State.]

In RJR Nabisco, Inc. v. European Community, the Supreme Court applied the presumption against extraterritoriality to determine the geographic scope of the Racketeer Influenced and Corrupt Organizations Act (RICO). RICO makes it illegal to use a pattern of racketeering activity in particular ways relating to enterprises. Racketeering activity consists of certain state and federal offenses generally known as predicates—money laundering, for example. RICO also creates a civil cause of action for treble damages for “[a]ny person injured in his business or property” by a RICO violation. In RJR, the Court unanimously held that two of RICO’s substantive prohibitions apply extraterritorially to the same extent as their predicates. For example, since the federal money laundering statute, applies to offenses “outside the United States” if the defendant is a U.S. person, RICO also prohibits acquiring an interest in an enterprise or conducting its business through a pattern of money laundering outside the United States if the defendant is a U.S. person. But RJR also held, by a vote of 4-3, that RICO’s civil cause of action requires injury to business or property in the United States. The Court thus preserved RICO as a law enforcement tool for the U.S. Government in a wide range of cases, including terrorism cases, while limiting private damages actions that might have caused friction with foreign nations.

In the process of describing its framework for applying the presumption against extraterritoriality, however, the Court said something that it almost certainly did not mean and that is likely to cause confusion among the lower courts unless nipped in the bud. Writing for a unanimous court, Justice Alito said that a court must ask whether the statute gives a clear indication that it applies extraterritorially “regardless of whether the statute in question regulates conduct, affords relief, or merely confers jurisdiction.” I have previously argued that the presumption against extraterritoriality does not apply to jurisdictional statutes, and in this post I explain why that is still true after RJR.

Although Article III of the U.S. Constitution sets the outer limits of subject matter jurisdiction for federal courts, Congress must confer jurisdiction upon the lower federal courts by statute. The U.S. Code contains a number of general subject matter jurisdiction statutes that apply in large numbers of cases. For criminal cases, 18 U.S.C. § 3231 gives district courts jurisdiction “of all offenses against the laws of the United States.” On the civil side, the general federal question statute, 28 U.S.C. § 1331, gives district courts jurisdiction “of all civil actions arising under the Constitution, laws, or treaties of the United States,” while the diversity statute, 28 U.S.C. § 1332, gives district courts jurisdiction “of all civil actions where the matter in controversy exceeds the sum or value of $75,000” between citizens of different states or between citizens and aliens (subject to a few exceptions). Some federal statutes have more specific grants of subject matter jurisdiction, like § 27 of the Securities Exchange Act, which gives the district courts jurisdiction over both civil and criminal actions “to enforce any liability or duty” created by the Act or its rules and regulations. None of these statutes contains the “clear, affirmative indication” of extraterritoriality that RJR says is necessary to rebut the presumption against extraterritoriality. Thus, if the presumption really applies to statutes that confer jurisdiction, those statutes might be interpreted not to apply extraterritorially. This might mean that federal courts would lack subject matter jurisdiction over criminal offenses committed abroad even if the substantive offense (like money laundering or RICO violations based on money laundering) clearly applies extraterritorially. It might similarly mean that civil suits arising abroad might have to be dismissed for lack of subject matter jurisdiction even if they are based on federal statutes that clearly apply extraterritoriality or are brought between diverse parties. Any sensible court would hesitate to reach such results. But how do we know that RJR does not command them.

First, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because RJR applied the presumption to RICO’s substantive provisions and not to the subject matter statute on which the suit was based. RICO lacks a general subject matter provision of its own, so jurisdiction in the civil suit brought by the European Community had to have been based on § 1331, the general federal question statute. The European Community lost its claim because the Supreme Court held that RICO’s civil cause of action required injury to business or property in the United States, but it lost on the merits. The Supreme Court assumed (correctly) that the district court had subject matter jurisdiction under § 1331 to hear the claim in the first place.

Second, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because RJR held that two of RICO’s criminal provisions do apply extraterritorially to the same extent as the predicates on which they are based. This preserves the ability of the U.S. government, in the example that the Court itself gave, to use RICO to prosecute “a pattern of killings of Americans abroad in violation of § 2332(a)—a predicate that all agree applies extraterritorially.” Yet the Court’s holding would be for naught if 18 U.S.C. § 3231, the general subject matter provision for violations of federal criminal law, were limited to the United States.

Third, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because RJR specifically discussed the possibility that the European Community might bring suit for violations of their own laws and “invoke federal diversity jurisdiction as a basis for proceeding in U.S. courts.” This would be impossible if 28 U.S.C. § 1332, the federal diversity statute, were limited to cases arising in the United States.

Fourth, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because Morrison v. National Australia Bank, the decision that RJR elaborates and applies, similarly applied the presumption against extraterritoriality to a substantive provision of the Securities Exchange Act (§ 10(b)) and not to its jurisdictional provision (§ 27). Indeed, the Morrison Court went out of its way to say that “[t]he District Court had jurisdiction under [§ 27] to adjudicate the § 10(b) question.”

So if RJR could not have meant that the presumption against extraterritorially applies to statutes granting subject matter jurisdiction, what did the Court mean when it said the presumption applies “regardless of whether the statute in question . . . merely confers jurisdiction”? The RJR Court was attempting to describe what it had done with the presumption in Kiobel v. Royal Dutch Petroleum Co., a case involving the Alien Tort Statute (ATS). In Kiobel, the Court held “that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption.” Kiobel, however, did not apply the presumption against extraterritoriality to the ATS itself—a statute the Court characterized as “strictly jurisdictional”—but rather to the implied federal-common-law cause of action under the ATS. On page 9 of the slip opinion, RJR accurately describes Kiobel as a case where “we concluded that principles supporting the presumption should ‘similarly constrain courts considering causes of action that may be brought under the ATS.’” And again on page 19, RJR correctly characterizes Kiobel as holding “that the presumption ‘constrain[s] courts considering causes of action’ under the ATS.” Understanding Kiobel to have applied the presumption against extraterritoriality to the implied cause of action and not to the ATS itself also makes sense of Kiobel’s statement that the presumption “is typically applied to discern whether an Act of Congress regulating conduct applies abroad,” for causes of action regulate conduct in a way that purely jurisdictional statutes do not.

In short, RJR’s statement that the presumption against extraterritoriality applies to statutes that “merely confer[] jurisdiction” must be read in context as describing the presumption’s application to implied causes of action under statutes like the ATS and not to subject matter jurisdiction statutes themselves. Any other reading would be contrary to what the Supreme Court held with respect to subject matter jurisdiction in Morrison and, indeed, to what the Supreme Court did with respect to subject matter jurisdiction in RJR. It would also be contrary to common sense, for it would constrain the jurisdiction of the federal courts over civil cases and criminal prosecutions based on substantive statutes that clearly apply abroad. One can only hope that lower courts do not waste too much time and effort trying to figure this out.

Multi-Blog Series: Locating the Geneva Conventions Commentaries in the International Legal Landscape

by Jean-Marie Henckaerts

For the first episode in the Multi-blog series on the Updated Geneva Conventions Commentaries, the Humanitarian Law & Policy Blog has published Locating the Geneva Conventions Commentaries in the International Legal Landscape, by Jean-Marie Henckaerts.


View of destruction in downtown Homs, Syria. © Jerome Sessini/Magnum Photos for ICRC

Jean-Marie is the head of the unit in charge of the update of the ICRC Commentaries on the Geneva Conventions of 1949 and their Additional Protocols of 1977.

To kick off the series, Jean-Marie addresses critical questions surrounding the commentaries such as: Where do the ICRC Commentaries fit into the legal landscape? What are the rules governing treaty interpretation and how do they operate in the area of IHL? Where does the ICRC’s legitimacy to interpret the Geneva Conventions stem from?

Read the full post on the ICRC’s Humanitarian Law & Policy Blog.

This series is brought to you by ICRC’s Humanitarian Law and Policy Blog, Intercross and Opinio Juris.

Implications of the 30th Ratification of the International Criminal Court’s Crime of Aggression Amendment by Palestine

by Jennifer Trahan

[Jennifer Trahan is Associate Clinical Professor, at The Center for Global Affairs, NYU-SPS, and Chair of the American Branch of the International Law Association’s International Criminal Court Committee. The views expressed are those of the author.]

A significant event happened quietly at the UN on June 27: Palestine deposited the thirtieth instrument of ratification of the International Criminal Court’s crime of aggression amendment, with 30 ratifications being the required number for activation. However, one more vote to activate the amendment, to occur after January 1, 2017, is required by the ICC’s Assembly of States Parties for the ICC to be able to exercise jurisdiction. Thus, Palestine’s deposit did not cause the amendment to become operational, although it brought it a step closer to the activation vote planned for December 2017.

There may be some confusion on the meaning of Palestinian ratification among those not steeped in the jurisdictional nuances of the crime of aggression amendment negotiated in 2010 in Kampala, Uganda. Although one might think that this is all about the Palestinians trying to create jurisdiction over Israel vis-à-vis the crime of aggression, that is not how it will work.

The crime of aggression amendment has a different jurisdictional regime than what currently exists under the ICC’s Rome Statute concerning the crimes of genocide, war crimes and crimes against humanity. If a national of a non-State Party (e.g., Israel) commits any of those crimes in the territory of a State Party, there would be ICC jurisdiction.

The crime of aggression amendment — whether for good or ill (depending on one’s perspective) —per 15bis(5) keeps crimes committed on the territory of, or by the nationals of, non-States Parties entirely out of its jurisdiction for purposes of State Party and proprio motu referrals (article 15bis). This means that Israeli nationals or crimes committed on Israeli territory will be outside the ICC’s crime of aggression jurisdiction. This then has a bizarre consequence here – that Palestine can ratify the crime of aggression amendment, not “opt out” of jurisdiction (something a State Party can also do per 15bis(4)), and, even after the crime activates, the ICC still could not prosecute Palestinian nationals who commit aggression against Israel, since Israel is a non-State Party. A Handbook compiled by some of the Kampala drafters clearly states: “Non-States Parties are thus excluded both as potential aggressor and victim States.” The crime of aggression amendment thus has significant jurisdictional loop-holes, and will create quite a narrow jurisdictional regime, even once activated. Stated more positively, it creates a consensual regime.

While activation also will activate ICC jurisdiction if the U.N. Security Council makes referrals (under article 15ter), it is considered unlikely that the US would permit alleged Israeli aggression to be referred.

So, the 30th ratification brings the world one step closer to having crime of aggression jurisdiction activated before the ICC, but it does not have direct ramifications for Israel – whether that was the Palestinian goal or not.

At this point, the reader may well wonder – is this Kampala amendment worthwhile with all these jurisdictional loopholes? I will argue it is: activation of the crime will undoubtedly cause states to take pause and ponder more seriously the potential consequences of starting an illegal war, and this is a good thing – even if ICC jurisdiction will not cover the specific case in question; also, states may implement the amendment into their domestic laws, and that may create jurisdiction – giving further pause to states inclined to commence an illegal war. The goal of course is not to generate ICC cases, but to influence state behavior positively.

The crime of aggression, of course, is hardly a novel concept. It criminalizes what is already illegal under article 2(4) of the U.N. Charter, and is similar in concept to the prosecutions of the International Military Tribunal at Nuremberg, which prosecuted war of aggression. In fact, states were working already over 100 years ago on this concept, when in 1913 they founded the “Peace Palace” in The Hague, Netherlands — in an attempt to have states litigate and arbitrate over issues of war, rather than go to war.

A few states have concerns about activation — the US for example, although it too as a non-State Party is exempt from jurisdiction vis-à-vis its nationals and crimes on its territory. Yet, the process is proceeding, with the 30 ratifications accomplished, and several other States Parties in the process of ratifying the amendment. US concern that humanitarian intervention would be criminalized may be something of a “red herring” – first, the US does not appear to have any clear and consistent policy of humanitarian intervention (for instance, as the UK has) and second, because, as at least most scholars seem to agree, humanitarian intervention would not be covered by the crime, as it would not constitute a “manifest” Charter violation. (The crime has a significant “threshold” in requiring that there be a “manifest” Charter violation [.pdf]; this means that only very serious cases that are unambiguously illegal , could be prosecuted.) The crime of aggression, in these ways, is rather conservative — having both jurisdictional loopholes and this high threshold.

There is still a chance, that, at some point, the ICC judges will find that Palestine is not a “state,” and thus was incapable of ratifying the Rome Statute, and similarly incapable of ratifying the crime of aggression amendment. (Judges always have jurisdiction to review their own jurisdiction – so regardless of the UN’s acceptance of the instruments of ratification, the ICC Judges could view the issue differently.) This would have little impact on the process of activating the crime, since several ratifications are in the pipeline, and will undoubtedly happen prior to December 2016. (There must be a year’s delay after the 30th ratification, for activation, along with the ASP vote).

Overall, while the Palestinians may have hoped to make a strong political statement, what the ICC crime of aggression tries to do is take the issue of aggression more out of the political process and into judicial hands. How one feels about this may depend on one’s confidence in the ICC, which, despite some setbacks, has gradually been proving itself to be a responsible, judicial institution, warranting confidence and support.

Avoiding a Rush to the Exit – Article 50 and the UK’s Withdrawal from the EU

by Larry Helfer

[Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University and a permanent visiting professor at iCourts: Center of Excellence for International Courts at the University of Copenhagen.]

As the world reacts to the shock of the Brexit referendum, international lawyers are turning their attention to the mechanics of Britain’s departure from the EU.  Article 50 of the Lisbon Treaty – the clause governing withdrawal – is now front page news.  A state’s decision to leave any international organization raises thorny questions of law and politics.  As I explain below, Article 50 answers some of these questions for withdrawals from the EU, but leaves many others unresolved.

The basics of Article 50

EU law was originally silent as to whether a state could leave the Union, generating debate over whether there was an implied right to exit.  Article 50(1) settles this issue, providing that “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”

Under Article 50, the decision to quit the EU is not self-executing, nor does it have immediate effect.  Rather, the exiting country must first “notify the European Council of its intention” to leave, which triggers a process for negotiations over withdrawal.  The hope, set out in Article 50(2), is that the remaining EU members and the departing nation will “conclude an agreement … setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.”  That agreement must be approved by a “qualified majority” of the Council (20 of the 27 remaining EU members), by the European Parliament, and by the UK itself.

Article 50’s third paragraph specifies that the Lisbon Treaty (and, by implication, all other EU laws) “shall cease to apply” to the exiting state on the date the withdrawal agreement enters into force.  If no agreement is reached, EU membership ends “two years after the notification” of withdrawal – unless the Council and the UK unanimously agree to an extension.  Once the UK has officially departed, it can rejoin only by following the Lisbon Treaty procedures applicable to states seeking admission to the EU for the first time.

The least worst outcome – bargaining for an orderly withdrawal

By setting the ground rules for Britain’s withdrawal, Article 50 is already shaping talks between London and Brussels over the terms of the UK’s exit.  The effects can be roughly divided into three time periods:  the pre-notification period, the negotiations phase (what one reporter waggishly calls the UK’s departure lounge), and the post-exit relationship between the Britain and the EU.

Brexit supporters did not wake up to an EU-free Britain on the morning after the referendum.  The UK is still a fully-fledged member of the Union – and it will remain so if the British government does not formally notify the European Council of its intent to withdraw.  Article 50 says nothing about how, when or by whom such notification is to be made.  Presumably, notice would be given by the Prime Minster.  Before the vote, David Cameron stated that he would inform the European Council “straight away” after a “leave” vote.  But on Thursday he announced that notification would be given by his successor, who will take office by October 2016.

Why the change?  Having campaigned against Brexit and lost, it is not surprising that Cameron wants someone else to pull the trigger on the UK’s withdrawal and squelch any campaign to block withdrawal – a possibility raised by Scotland’s First Minister Nicola Sturgeon.  But even fervent British sovereigntists would be advised to support some delay in notifying the Council.  So long as the UK has not fired the starting gun on the two-year exit clock, it has the upper hand in negotiations with the other 27 EU nations.  Britain keeps both the benefits and the burdens of EU membership while the terms of its departure are hammered out.  It can’t be forced to leave the Union (or can it? – see below) unless those terms are to its liking.

Once notice is given, however, the advantage shifts to the continent.  If Britain and its former EU partners do not reach a deal within 24 months – or unanimously agree to extend negotiations – the UK is out.  A divorce that is finalized while the spouses are still squabbling over custody of the children and the division of marital property is messy and painful.  The equivalent for a non-negotiated Brexit – the sudden re-imposition of barriers to free movement of capital, goods and labor – is an outcome that even diehard British nationalists should want to avoid.

How long can the UK defer notification?  Article 50 doesn’t say, but politics rather than law will almost certainly provide the answer.  Both pro-Brexit voters and EU leaders are unlikely to oppose a modest delay.  But the uncertain economic and political fallout of a protracted British withdrawal will push both sides to the bargaining table regardless of when the UK gives notice – unless the British public catches a bad case of “Regrexit.”

Contrary to what some have claimed, however, the exit negotiations need not conclusively resolve London’s status vis-à-vis Brussels.  Article 50(2) requires a withdrawal agreement that “tak[es] account of the framework for [the UK’s] future relationship with the Union.”  An deal that takes plausible steps toward defining that relationship should suffice, even if it is a modus vivendi whose principal aim is an orderly disengagement.  The details of the Britain’s post-withdrawal status can be finalized at a later date – although in the interim EU law will cease to apply to the UK.

Avoiding a rush to the Brexit

As described above, Article 50’s withdrawal rules, although incomplete, do a reasonably good job of channeling the parties toward a political settlement of the UK’s departure over the next several years.  But some in the pro-Brexit camp are calling for more precipitous action, including introducing an EU Law (Emergency Provisions) Bill in the current session of the British Parliament to revise the European Communities Act 1972.  The Bill aims to “immediately end the rogue European Court of Justice’s control over national security, allow the Government to remove EU citizens whose presence is not conducive to the public good (including terrorists and serious criminals), [and] end the growing use of the EU’s Charter of Fundamental Rights to overrule UK law ….”

There is no doubt that Parliament has the power to adopt such a Bill.  But from an international perspective, the enactment would rightly be seen as a grave violation of EU law, which continues to bind the UK until an exit deal is finalized or, failing that, two years after a notification of withdrawal.  The Bill would surely trigger a raft of lawsuits, by the EU Commission and by private litigants, challenging its legality and seeking fines and damages.  How would British judges respond to such suits?  The Bill would force UK courts to choose between their duty to apply EU law over conflicting national law and their obligation to defer to Parliament.  The result, as Cambridge professor Kenneth Armstrong has warned, would be a constitutional conflict of the first order.

The Bill might also provoke the remaining EU members to try to force Britain out.  The EU has no expulsion clause; one was considered but ultimately left out of the Lisbon Treaty.  But as my coauthors and I explain in a recent working paper, it is unsettled whether international law recognizes an implied right to expel.  And European leaders could attempt to achieve the same result indirectly, treating the Bill as a material breach that authorizes a suspension or termination of the Lisbon Treaty vis-à-vis the UK.  In either case, the legality of any expulsion effort would almost certainly be challenged in court.

In all events, the far better course for all concerned is to avoid a precipitous unilateral break and instead to negotiate Britain’s orderly departure from the EU.

Oh Britain, Where Art Thou? (The View from the EU’s Eastern Neighbors)

by Chris Borgen

As the news of the Brexit vote sinks in, commentators are considering the various longer-term effects. I want to highlight the how this may look to the EU’s neighbors to the east, especially countries such as Ukraine, Moldova, and Georgia that have recently signed Association Agreements with the EU. Ukraine and Moldova, in particular, have electorates that are divided over whether to integrate more closely with the EU or with Russia’s nascent Eurasian Economic Union.  The debate over EU integration sparked Ukraine’s Maidan demonstrations and the subsequent separatist conflict.  All of these countries faced significant pressure from Russia to reject association with the EU. These countries became effectively a borderland between two systems, those of the EU and of Russia. And Russia, in particular, has treated this as a zero-sum struggle over the futures of these countries that had once been part of the USSR. So what happens in the EU is of critical concern to its neighbors to the east.

And what are the EU’s neighbors seeing today? There are already calls by some for exit referenda in other EU countries such the Netherlands and France. The 2017 French Presidential election is increasingly looking like it will be an important barometer for the future of the Union. News feeds are abuzz with concerns about whether Brexit is the start of a domino chain that will tear the EU asunder.

However, some commentators have suggested that, although there will be a formal exit of the UK, there will actually be ongoing deep coordination and low trade barriers between Britain and the EU. A technical exit but not an existential crisis. It is too early to predict with confidence which of many scenarios will come to pass.

But the fact that the EU’s stability is more uncertain today than it was yesterday will affect regional politics. In the U.S., you might have people looking nervously at the Dow but that is nothing compared to the concerns in Kiev, which is embroiled in a secessionist conflict in part because it chose to bet on the EU being an important part of the future of Ukraine.

For their part, politicians from the EU’s eastern neighbors countries are reacting to Brexit with–how shall I say it?—a stiff upper lip. Interfax-Ukraine reports:

First Deputy Speaker of the Verkhovna Rada of Ukraine Iryna Gerashchenko and Deputy Prime Minister for Reintegration of Moldova Gheorghe Balan have discussed the result of the referendum on Britain’s exit from the European Union (Brexit) and its consequences for both countries.

“Ukraine and Moldova are disappointed with the results of the referendum and are concerned about the growing number of eurosceptics in the EU. However, Ukraine and Moldova are committed to the path of European integration and reforms,” Gerashchenko wrote on his Facebook page on Friday afternoon following the meeting.

Brave face notwithstanding, Ukraine and other countries along the EU’s eastern border that decided to sign Association Agreements with the EU will likely need to be reassured that they chose wisely. Some Members of Ukraine’s Parliament are concerned that Brexit will mean the EU will become inward-focused and delay the implementation of aspects of the Association Agreement that came so dear.

The EU will need to think clearly and act decisively not only about how it will manage the divorce with the UK but also about its strategy regarding its eastern neighbors—including both the states of the former USSR and Turkey as well.

For a deep-dive into the EU’s recent policies towards its neighbors (written before Brexit), see this paper from the EU’s Institute for Security Studies.

Introducing the First Multi-Blog Series on the Updated Geneva Conventions Commentaries

by Jessica Dorsey

[This post is brought to you by ICRC’s Humanitarian Law and Policy Blog, Intercross and Opinio Juris.]

The updated Commentaries are an interpretive compass emerging from more than 60 years of application and interpretation of the Geneva Conventions. Over the rest of 2016, several academic blogs are hosting a joint series that brings to light the significance of the updated Commentary on the First Geneva Convention.

In March, the ICRC released an updated Commentary on the First Geneva Convention of 1949 (GCI). This is the first instalment of six new Commentaries aimed at bringing the interpretation of the Geneva Conventions and their Additional Protocols of 1977, to the 21st century.

This blog series is co-hosted by Intercross, the blog of the ICRC in Washington D.C., the ICRC’s new Humanitarian Law & Policy blog and us here at Opinio Juris.

This multi-blog venture is divided into three episodes, each of which focusing on a GCI provision – or a theme within a set of provisions – whose application and/or interpretation have evolved and give rise to debate among States and commentators. For each phase, the three blogs will invite one author to either initiate the conversation or act as respondent. The three episodes are respectively scheduled for this summer, fall and winter 2016.

The blogs will be regularly updated with past and upcoming posts, along with an evolving publication calendar. To kick off the series, Humanitarian Law & Policy will invite Jean-Marie Henckaerts, Head of the Update Project at ICRC, by locating the GCI Updated Commentary into the legal landscape and applying the rules on treaty interpretation to the Geneva Conventions. Expect the post by the end of this month on this website, or get it directly in your mailbox.

Bringing the Pictet’s Commentary’s Legacy Into the 21st Century

In 2011 the ICRC embarked on a major project intended at updating its original Commentaries, drafted under the general editorship of Jean Pictet in the 1950s (for the Conventions), and of Yves Sandoz and other ICRC lawyers in the 1980s (for the Protocols).

Since their publication, these commentaries have become an authoritative interpretative guide for States, armed forces, national and international courts, academics and civil society. However, in order to remain relevant, they needed to be updated to reflect more than 60 years of subsequent developments in applying and interpreting the Geneva Conventions. With the release of the Commentary on GCI, an important milestone has been reached, with key findings related to GCI-specific articles but also common articles governing the scope of application of the Conventions and their enforcement.

The initial edition of the Commentaries mostly provided historical context for the adoption of the Conventions and their Additional Protocols, drawing on the negotiation process of the treaties, as well as practice prior to their adoption. In this respect, they retain their historic value. The updated Commentary builds on and preserves those elements that are still relevant, while incorporating more than six decades of application and interpretation of the Conventions – 40 years in the case of the 1977 Additional Protocols. Capturing the evolution of warfare and humanitarian challenges, as well as technological and legal developments, led to many additions but also updates.

The multi-faceted nature and complexities of today’s armed conflicts have also resulted in more elaborated interpretations on the scope of application of the law in armed conflict. The new Commentary aims to capture key elements of the ongoing debate about where, when, and to whom IHL applies, setting out the view of the ICRC while also indicating other interpretations.

The Commentary provides important clarifications on key aspects of the legal regime governing the protection of the wounded and sick in armed conflict. On the obligation to respect and protect the wounded and sick, it addresses issues ranging from taking their presence into account in a proportionality assessment when planning attacks, to the general obligation to have medical services in the first place. On the protection owed to medical personnel, it gives details on the conditions under which such protection may be lost. The new GCI Commentary also captures changes in the regulation of offers of services by impartial humanitarian organizations, on the dissemination of IHL, and on criminal repression. It also adds a number of subject matters, such as the prohibition of sexual violence and non-refoulement.

For more on the updated Commentaries project, see the Humanitarian Law and Policy’s post here.

Congratulations to Duncan Hollis on His Election to the Inter-American Juridical Committee

by Chris Borgen

We at Opinio Juris are very proud that our colleague Duncan Hollis of Temple University Law School was elected on June 15 by the General Assembly of the Organization of American States to the Inter-American Juridical Committee, which

…serves the Organization as an advisory body on juridical matters of an international nature and promotes the progressive development and the codification of international law.

It also studies juridical problems related to the integration of the developing countries of the Hemisphere and, insofar as may appear desirable, the possibility of attaining uniformity in their legislation.

No two members of the Committee may be from the same state and Duncan’s term will start in January 2017, at the end of David Stewart’s three years of service. Duncan is one of three new members of the Committee.

With his wide-ranging expertise on topics ranging from the law of treaties to the challenges that new technologies pose to International Humanitarian Law, Duncan will be a great addition to the Committee.  Congratulations!

The Return of the Emoji: Flags, Emoji, and State Recognition

by Chris Borgen

I thought I had largely said what I had to say concerning emojis and international law in my previous post. SRSLY. 😉

But then John Louth, who knows of my interest in issues of recognition and non-recognition of aspirant states, pointed out this article from Wired which discusses, among other things, the issue of which national flags are awarded emoji and which are not. So let us return to the emoji for another post.

Consider the following passage for the Wired article:

…the most contentious emoji arena isn’t food, or even religion. It’s flags. From October 2010 until April 2015, there were a limited number of flag emoji, including the Israeli flag—but notably, no Palestinian flag. When the Palestinian flag was added—along with some 200 other flag emoji—it was cause for celebration.

Palestine exists in an unusual limbo in international law. It is recognized by some countries as Palestine, and by others as the Palestinian Territories.

“Technology has been used as a weapon to revolutionize the Middle East, and now it is being used as a weapon to legitimize Palestine,” wrote Palestinian columnist Yara al-Wazir at Al Arabiya earlier this year. “Introducing the Palestinian flag as an emoji is more than just a symbolic gesture.”

The article then goes on to note that some national groups, such as the Kurds, do not have flag emojis.

So, how does the Unicode Consortium, a non-state actor, decide whether to assign a symbol for the flag of an entity claiming to be a state, especially if that statehood is contested? (For more on the Unicode Consortium, please see my previous post.) The Consortium’s FAQ explains the criteria:

The Unicode Standard encodes a set of regional indicator symbols. These can be used in pairs to represent any territory that has a Unicode region subtag as defined by CLDR [Common Locale Data Repository], such as “DE” for Germany. The pairs are typically displayed as national flags: there are currently 257 such combinations. For more information, see Annex B: Flags in UTR #51.

In other words, the Consortium’s regional indicator symbols are based on the International Organization for Standardization’s (ISO’s) two-letter country codes.

As described on its own website, the ISO is:

an independent, non-governmental organization made up of members from the national standards bodies of 162 countries. Our members play a vital role in how we operate, meeting once a year for a General Assembly that decides our strategic objectives.

Our Central Secretariat in Geneva, Switzerland, coordinates the system and runs day-to-day operations, overseen by the Secretary General.

It also describes itself as a network of national standard–setting bodies.  With its combination of a permanent secretariat as well as a bureaucratic network, the ISO has aspects of both an intergovernmental network and an international organization.  (See more on ISO governance, here.)

To receive a top-level country code from the ISO, an entity must be: (a) a United Nations member state, (b) a member of a UN specialized agency, or (c) a party to the Statute of the International Court of Justice.

Thus, the Unicode Consortium’s decision-making process to decide whether or not to assign a glyph for a country flag is based on the decision by the ISO, an organization with significant national government involvement, on whether or not a territory receives a country-code. The ISO’s decision is itself reliant on the aspirant entity’s relationship to the United Nations.

In short, the ISO has a two-letter designator for Palestine (see, for example, this ISO newsletter [.pdf]), so the Consortium by its own rules can (though does not have to) assign a code for the flag of Palestine. No ISO code for a Kurd state; no Kurdish flag emoji. And all of these stem from degrees of relationship of these entities to the UN.

In sum, a non-state consortium is basing its decisions on a state-based regulatory network (the ISO), which in turn is using criteria based on an intergovernmental organization (the UN). The result in the case of flag emojis is that the Consortium unlikely to assign a flag where the  ISO is not willing to assign a separate country code, and ISO will not assign such a code without first looking to UN practice.

Receiving a flag emoji is not the recognition of a state by another state or even by an interstate organization. Nonetheless there are many hurdles to the designation of a flag emoji. Given the significant state interest in issues of recognition, explicit or implied, this is not surprising.

And if readers find other interesting overlaps of the Unicode Consortium, emojis, and international law, please let me know!