Special Content

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/
This entry was posted in Weekday News Wrap and tagged .

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/
This entry was posted in Weekend Roundup and tagged .

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/
This entry was posted in Weekday News Wrap and tagged .

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/
This entry was posted in Weekday News Wrap and tagged .

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/
This entry was posted in Weekend Roundup and tagged .

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/
This entry was posted in Weekday News Wrap and tagged .

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/
This entry was posted in Weekday News Wrap and tagged .

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/
This entry was posted in Weekend Roundup and tagged , .

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/
This entry was posted in Weekday News Wrap and tagged .

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/
This entry was posted in Weekday News Wrap and tagged .

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/

Scottish Independence Insta-Symposium: ‘Negotiated Independence’–Scottish Independence and a New Path to Statehood?

by Stephen Tierney

[Stephen Tierney is a Professor of Constitutional Theory, University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.]

In the Edinburgh Agreement of 2012 the United Kingdom Government committed itself to respect the outcome of the Scottish independence referendum. This suggests that, in the event of a Yes vote, the transition to independence will be relatively straightforward, as will the pathway to Scotland’s international recognition and membership of the United Nations – see here.

How then would Scotland’s move to statehood be characterised under international law? It is extremely unlikely that the UK will be taken to have dissolved. The international community is generally ill-disposed towards state dissolution. Despite the loss by Pakistan of over half its population in the secession of Bangladesh it continued to be recognised. More recently the Republic of Sudan survived the loss of the significant territory and population of South Sudan. Certainly Scotland constitutes a significant area (almost one third) of the United Kingdom’s land mass, but it contains less than 10 per cent of the population. The territories of England, Wales and Northern Ireland would all still be contained within the United Kingdom and the UK would retain its principal governmental institutions. These factors suggest a strong presumption in favour of the UK’s continuation.

There are also political considerations. The significance of the UK as a member of the EU, NATO and the Security Council of the United Nations would all be important factors in encouraging others to view it as the continuing State. By analogy, the fact that Russia could continue as a permanent member of the Security Council, thereby avoiding the need to revisit how membership of that body is constituted, was without doubt a significant factor in the international community treating Russia as the USSR’s continuation.

Therefore, Scotland would I think clearly be taken to have seceded from the UK (taking secession to be ‘the effort of a group or section of a State to withdraw itself from the political and constitutional authority of that State, with a view to achieving statehood for a new territorial unit on the international plane’. Supreme Court of Canada, Reference re Secession of Quebec, [1998] 2 S.C.R. 217, para 83.). But all the same, the label secession doesn’t seem to fit very well. We tend to think of secession as a unilateral act, denounced as illegal by the remainder state. It is notable that in light of the Edinburgh Agreement, Crawford and Boyle seem to characterize the process almost as a sui generis situation, what they term ‘negotiated independence’. Certainly the consensual negotiation process which would likely follow a Yes vote would surely have a significant bearing in how Scotland would be treated by the international community.

Let me turn then to issues of recognition and succession. Recognition is itself a complex and contested area of international law. There is no institution authorised to determine definitively the legitimacy of claims to recognition as a new State. Indeed, the generally held view is that recognition is a uniquely political act, operating largely if not entirely at the discretion of States. Certainly Scotland would seem to fit the minimalist Montevideo Convention criteria for statehood as well as the criteria for recognition advanced by the  European Communities Guidelines on the Recognition of New States issued in 1991: for example, respect for the rule of law, democracy and minority rights. Notably the Supreme Court of Canada in the Secession Reference referred to the domestic legality of the secessionist act as another possible condition for recognition. If so, then again the UK’s acceptance of Scotland’s independence in the event of a Yes vote and the likelihood of negotiations between the two governments to this end would surely greatly assist an independent Scotland in the search for early international recognition.

How then would Scotland succeed to the rights and responsibilities that currently apply to the United Kingdom? Unlike the situation with state recognition, state succession has been the subject of considerable attention by the International Law Commission of the United Nations – see here and here. Despite this work the area is still subject to considerable confusion and disagreement. It seems certain that an independent Scotland would assume responsibility for the international relations of the territory of Scotland under international law but that does not mean that it would succeed automatically to all of the UK’s rights and responsibilities, to treaties, and in particular to membership of international organisations. For the avoidance of doubt it would probably make sense for an independent Scotland to accede to major multilateral treaties. At the same time, and assuming the continuation model, the UK State would continue to function as before, be recognised as identical to the State as it existed prior to the secession, would continue to enjoy the same rights and owe the same obligations, and retain UK membership of international organisations.

Scottish succession to membership of international organisations is an intense political issue. Regardless of the disagreement surrounding the meaning of Article 34 of the 1978 Convention, we need to treat this as a separate issue from succession to treaty obligations. The same Convention (Art. 4) is clear that succession to constituent instruments of an international organization is: ‘without prejudice to the rules concerning acquisition of membership and without prejudice to any other relevant rules of the organization.’ In other words, international organisations control their own membership and any special rules they set for membership supersede principles of general international law.

I will discuss only the United Nations here. It seems highly likely that the UN will treat the UK as the continuing State and that an independent Scotland would, as a new State, be required to apply for membership. For precedents see India/Pakistan; Malaysia/Singapore; Pakistan/Bangladesh; Serbia/Montenegro; Sudan/South Sudan. Other new States such as the Czech Republic, Slovakia and Eritrea have also had to apply for membership as did the former republics of the SRFY, including the Federal Republic of Yugoslavia.

Although Scotland would be required to apply for membership under Article 4 of the Charter, there do not seem to be any significant obstacles. The conditions for admission are that the candidate territory be a State; be peace-loving; accept the obligations of the Charter; be able to carry out its Charter obligations and be willing to do so. Without going into details it seems clear Scotland would satisfy each of these criteria. Of course, if the United Kingdom were to object to Scottish independence, then Scotland could find it difficult to obtain the required level of support within the General Assembly for admission, and as a continuing permanent member of the UN Security Council the UK could also attempt to use its veto to prevent a recommendation that Scotland be admitted. Each of these scenarios seems highly unlikely. Since we might reasonably anticipate negotiations between the UK and Scottish Governments leading to agreed terms for Scottish independence, and since an independent Scotland would most probably be considered an important ally by the UK, it is realistic to assume UK support for Scotland’s UN membership application.

Another big issue is Scotland’s membership of the EU discussed here and here.

http://opiniojuris.org/2014/09/16/scottish-independence-insta-symposium-negotiated-independence-scottish-independence-new-path-statehood/