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Weekend Roundup: November 1-7, 2014

by An Hertogen

This week on Opinio Juris, Peter continued his commentary on the Zivotofsky hearing and Kristen posted the transcript of the recent hearing in the Haiti Cholera case.

Jens wrote about the DOD’s plans for a Defense Clandestine Service, and welcomed the news that President Obama will seek congressional authorization for the ISIS campaign.

Kevin discussed the passage in the OTP’s Mavi Marmara decision where the OTP finds that Israel is still occupying Gaza, and explained why the Comoros’ appeal will have little effect in practice.

In guests posts, Nikolaos Ioannidis wrote on the complex legal issues surrounding activities in the Cyprus EEZ, and Giacomo Pailli analysed the Italian Constitutional Court’s decision that the ICJ decision in Germany v Italy can be given no effect in the Italian legal system.

Finally, Jessica wrapped up the news and listed events and announcements, and Kevin asked our European readers for advice on PhD applications.

Many thanks to our guest contributors and have a nice weekend!

http://opiniojuris.org/2014/11/08/weekend-roundup-november-1-7-2014/
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Weekly News Wrap: Monday, November 3, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

http://opiniojuris.org/2014/11/03/weekly-news-wrap-monday-november-3-2014/
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Weekend Roundup: October 18-31, 2014

by An Hertogen

This fortnight on Opinio Juris, Jens predicted that the Ebola crisis will become a Chapter VII issue at the UN. The theme of the UN and diseases continued in Kristen’s update on a hearing on the UN’s Privileges and Immunities in the Haiti Cholera case. In other UN news, she summarized some of the issues discussed at a meeting on the Security Council’s methods.

Kevin wrote on the Constitutional Court of South Africa’s decision in the Zimbabwe Torture Docket case, finding that international law did not prohibit universal-jurisdiction investigations in absentia.  Kevin also assessed the likelihood of the ICC’s OTP opening an investigation into Chevron’s activities in Ecuador. For those in need of a refresher on these activities, Peter recommended Paul Barrett’s Law of the Jungle.

Peter looked ahead at the Supreme Court argument in Zivotofsky v. Kerry, and pointed out three factors that in his view point to the Court sustaining the Jerusalem Passport Statute, while Julian wondered what China really means when it celebrates the “International Rule of Law”.

Kevin congratulated Dapo Akande on his promotion to Professor of International Law at Oxford, and recommended a post by Mark Kersten on the terror attacks in Canada.

We ran two guest posts: one by Chimène Keitner on the evolving law of foreign official immunity, and one by William Dodge who raised a question on the Convention on the International Sale of Goods.

Finally, Jessica wrapped up the international law headlines (1, 2), and we listed events and announcements (1, 2). Our readers may also be interested in a Lawfare podcast on al-Bahlul, featuring Kevin, Wells Bennet and Steve Vladeck.

Have a nice weekend!

http://opiniojuris.org/2014/11/01/weekend-roundup-october-18-31-2014/
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Weekly News Wrap: Monday, October 27, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • A group of asylum seekers in Australia who took the immigration department to court over the exposure of their personal details in a major data breach have won a federal court appeal, and the immigration minister has been ordered to pay their costs.

UN/World

http://opiniojuris.org/2014/10/27/weekly-news-wrap-monday-october-27-2014/
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Weekly News Wrap: Monday, October 20, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • Australian police have agreed to assist China in the extradition and seizure of assets of corrupt Chinese officials who have fled with hundreds of millions of dollars in illicit funds, the Sydney Morning Herald newspaper reported on Monday.

UN/World

http://opiniojuris.org/2014/10/20/weekly-news-wrap-monday-october-20-2014/
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Weekend Roundup: October 4-17, 2014

by An Hertogen

This fortnight on Opinio Juris, Jens discussed how to get Quirin right when Quirin was wrong. Kevin asked for sources backing the US position on self-defence against non-state actors, while Kristen gave an overview of the legal issues up for debate at the General Assembly this fall. Julian expressed doubts about the strength of Greece’s legal arguments for the return of the Elgin Marbles.

We also had a range of guest posts, with Başak Çalı commenting on the Tory attack on the European Human Rights system, and Oliver Windridge discussing how a recent decision by the Director of Public Prosecutions for England and Wales confirms that there is no immunity for torture in England and Wales. Yanying Li followed up on an earlier post discussing the recent reforms for more orderly sovereign debt restructurings at the IMF.

Finally, Jessica and I wrapped up the international law headlines (1, 2) and listed events and announcements (1, 2). Our DC-based readers can hear Kevin speak on Monday at an event at George Mason University on the ICC and Palestine.

Many thanks to our guest contributors and have a nice weekend!

http://opiniojuris.org/2014/10/18/weekend-roundup-october-4-17-2014/
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Weekly News Wrap: Monday, October 13, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

  • UN Secretary-General Ban Ki-moon has made a surprise visit to the Libyan capital aiming to bolster talks between rival groups that have divided the North African nation with two separate parliaments and governments.
http://opiniojuris.org/2014/10/13/weekly-news-wrap-monday-october-13-2014/
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Weekly News Wrap: Monday, October 6, 2014

by An Hertogen

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

World

  • Last week, the 7th Meeting of the Parties to the Cartagena Protocol on Biosafety met in Pyeongchang. The International Institute for Sustainable Development has a summary of the proceedings here.
  • The IMF and the World Bank are holding their Annual Meetings in Washington DC this week. For civil society coverage, see here.

http://opiniojuris.org/2014/10/06/weekly-news-wrap-monday-october-6-2014/
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Weekend Roundup: September 27- October 3, 2014

by An Hertogen

This week on Opinio Juris, the debate on the AUMF continued with Kevin pointing out the lack of evidence on Khorasan’s existence and the denuding of the concept of self-defence, and Jens discussing how ground troops will be necessary in the battle of ISIS, which requires a better legal foundation for the operation than the AUMF. On a comparative and lighter note, Kristen recommended Jon Stewart’s Daily Show piece on the UK’s debate on the authorization of air strikes against ISIL. In a guest post, Myriam Feinberg reported back from a recent workshop on the future of the 2001 AUMF.

In other guest posts, Abel Knottnerus updates us on recent events in the Kenyatta trial at the ICC, while Alvin Cheung established the international law case for democracy in Hong Kong.

Julian asked whether a US Court can hold another state in contempt under international law, and followed up with further thoughts on the matter. He also discussed how sovereigntist arguments against investor-state dispute resolution are now appearing on both sides of the ideological spectrum in the US.

Finally, Jens analysed the jurisdictional quagmire in the Al Nashiri-case before the Guantanamo military commission

As for our usual features, I wrapped up the international news headlines and listed events and announcements.

Many thanks to our guest contributors and have a nice weekend!

http://opiniojuris.org/2014/10/04/weekend-roundup-september-27-october-3-2014/
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Weekly News Wrap: Monday, September 29, 2014

by An Hertogen

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

  •  Ashraf Ghani Ahmadzai will be sworn in as the new President of Afghanistan later today.
  • Protestors in Hong Kong refuse to withdraw and the use of tear gas by the authorities has created new protests to spring up against Beijing’s new rules imposing strict controls on candidate selection for the next elections.

Europe

Americas

World

http://opiniojuris.org/2014/09/29/weekly-news-wrap-monday-september-29-2014/
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Weekly News Wrap: Monday, September 22, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

  • An American recently sentenced to six years hard labor by a North Korean court pretended to have secret U.S. information and was deliberately arrested in a bid to become famous and meet U.S. missionary Kenneth Bae in a North Korean prison, state media said on Saturday. 

Europe

Americas

  • The United States will not stand in the way of Venezuela securing a temporary seat on the U.N. Security Council in 2015-16 after Latin American and Caribbean states unanimously endorsed its bid, U.N. diplomats and U.S. sources say. 

Oceania

UN

http://opiniojuris.org/2014/09/22/weekly-news-wrap-monday-september-22-2014/
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Scottish Independence Insta-Symposium: Scotland’s Secession from the EU

by Jure Vidmar

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

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

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

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

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

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

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

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

http://opiniojuris.org/2014/09/16/scottish-independence-insta-symposium-scotlands-secession-eu/