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Ukraine Insta-Symposium: Two to Tango? The Limits of Government Consent to Intervention

by Tali Kolesov Har-Oz and Ori Pomson

[Tali Kolesov Har-Oz and Ori Pomson are teaching assistants and LL.B. candidates at the Hebrew University of Jerusalem Law Faculty]

Following the ousting of Ukrainian President Viktor Yanukovich by protesters and parliament, Russian military forces took over key positions in the autonomous region of Crimea (timeline available here). One of Russia’s justifications for militarily intervening in Ukraine has been the reported request by the ousted Yanukovich for Russia’s assistance (see for example here and here). Though the respect for territorial integrity is a fundamental principle of international law and a military intervention would thus clearly violate this rule (UN Charter, art. 2; UN Doc. A/RES/25/2625), Russia’s position is that it has not violated Ukraine’s territorial integrity in light of – inter alia – Yanukovich’s alleged consent. This raises the question, which this piece will address, of how to determine which government or leader – if any – may authorize a military intervention in a State.

It is generally recognized that a State may intervene in another State if the latter’s government provided prior consent (see DRC v Uganda, ¶¶46-47; ARSIWA Commentaries, 74). However, already in the early post-Charter era it became very apparent that the pretext of consent could be subject to serious abuse (Wright, 274-76). Accordingly, there must be “thorough scrutiny” in assessing whether actual and legal consent has been given (Dinstein, §321).

Only a legitimate government may bind a State in international law (D’Aspremont, 878-879). Thus, in order to determine who is entitled to request such a military intervention, we must first identify the legitimate government of that State.

While there are no objective criteria to determine governments’ legitimacy (D’Aspremont, at 878-879), governmental status in the legal literature is regularly equated with territorial effectiveness (Oppenheim’s International Law 150-54 (9th ed. 1992)). However, several authors have argued that governments also derive their legitimacy from the extent to which they come to power through participatory political mechanisms (Franck, 47), or through the internal processes in the State (Roth, 31). Thus, it is quite clear that where a government is effectively replaced by another through legal means, the new government – having complied with both the territorial effectiveness test and the political participation test – may bind a State in international law.

The interesting legal questions arise where an illegal change of power leads to the existence, simultaneously, of separate de facto and de jure governments. In other words, which would be considered the legitimate government where – as claimed by Russian Ambassador to the UN Vitaly Churkin – an insurgent faction has successfully established itself as the de facto government by overthrowing an existing constitutional structure?

(more…)

http://opiniojuris.org/2014/03/09/ukraine-insta-symposium-two-tango-limits-government-consent-intervention/
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Weekend Roundup: March 1-8, 2014

by An Hertogen

This week on Opinio Juris, we continued to follow the situation in Ukraine as it unfolded with an insta-symposium. Alexander Cooley gave an overview of the power politics at play, while Chris posted about Russia’s use of legal rhetoric as a politico-military strategy, and about how language affects the evolution of international law. This last post built on a discussion between Julian and Peter in which Julian argued that the crisis shows the limits of international law, while Peter took aim at the Perfect Compliance Fallacy.

Further issues of compliance with international law were raised by Aurel Sauri, who analysed when the breach of a Status of Forces Agreement amounts to an act of aggression, by Mary Ellen O’Connell’s post on Ukraine under international law, and by Julian who asked whether a Crimean referendum on secession would be contrary to international law. In a follow-up post on the referendum, Chris surveyed the current state of international law on the right to secede and self-determination. In response to a reader’s comment, Chris also delved into the issue of recognition to figure out who speaks for Ukraine.

Peter examined the legality of Russia’s extension of citizenship to non-resident native Russian speakers and pointed to the legal basis for President Obama’s decision to impose entry restrictions in response to the Ukrainian crisis.

In other news, Julian asked why the US did not call the knife attack in the Kunming railway station a terrorist attack, Charles Blanchard provided a guest post on autonomous weapons, and Duncan updated us on the US Supreme Court’s latest treaty interpretation case.

Finally, Jessica wrapped up the news and listed events and announcements.

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

http://opiniojuris.org/2014/03/08/weekend-roundup-march-1-8-2014/
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Weekly News Wrap: Monday, March 3, 2014

by Jessica Dorsey

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

Africa

Asia

  • A prominent Chinese dissident, Xia Yeliang, who moved to the United States after being fired by Peking University last year warned of the dangers of academic exchanges with China, saying Beijing sent spies as visiting scholars.
  • China accused the United States of widespread human rights abuses, including cyber-surveillance and child labor, in Beijing’s annual rebuttal of Washington’s criticism of its rights record.
  • North Korea has fired two short-range missiles into the sea off the east coast of the Korean peninsula, South Korea’s defense ministry has said, after launching similar rockets last week.

Americas

Middle East

Europe

http://opiniojuris.org/2014/03/02/weekly-news-wrap-monday-march-3-2014/
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Weekend Roundup: February 22-28, 2014

by An Hertogen

This week on Opinio Juris,  we closely followed the situation in Ukraine. Julian argued that international law principles are unlikely to provide a solution for the crisis since it would require the US and Russia respectively to defend or reject principles they have rejected or defended in other crises. He also reassured Daily Mail readers that the Budapest Memorandum does not oblige the US or the UK to defend Ukraine against a Russian invasion. Kevin in turn suggested to Ukraine’s Parliament to sort out the ICC’s jurisdiction over Ukraine before sending former President Yanukovych to The Hague for trial.

More on the ICC and its jurisdiction followed in Kevin’s analysis of jurisdictional issues in Reprieve‘s Drone strike communication to the ICC and his post recommending Susanne Mueller’s essay on Kenya and the ICC.

Julian’s other posts focused on Asia. He described how Japan’s historic wars with its neighbours continue to be fought in the court room with the Chinese government’s decision to back a lawsuit against Japanese companies that used Chinese citizens as forced laborers during World War II and a California lawsuit that brings Japan and Korea’s history wars to the US state and local level. He also looked into calls for a joint China-Taiwan policy over claims in the South and East China Seas.

In other posts, Kristen assessed the UN’s news “Rights Up Front” Action Plan; Peter pointed to an interesting experiment showing that information on treaty obligations can shift public opinion on solitary confinement; and Kevin thought the European Parliament’s resolution on drone strikes adopted a broad definition of jus ad bellum.

Finally, Jessica wrapped up the news and I listed events and announcements. Our London-based readers can see Kevin in action this coming Wednesday  when he’ll give a lecture at UCL on “What is an International Crime?”.

Have a nice weekend!

http://opiniojuris.org/2014/03/01/weekend-roundup-february-22-28-2014/
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Weekly News Wrap: Monday, February 24, 2014

by Jessica Dorsey

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

Africa

Asia

Americas

Middle East

Europe

http://opiniojuris.org/2014/02/24/weekly-news-wrap-monday-february-24-2014/
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Weekend Roundup: February 15-21, 2014

by An Hertogen

Weekend again, time for a roundup of the blog! This week, Rogier Bartels provided a guest post in two parts on the temporal scope of application of IHL, asking when a non-international armed conflict ends.

Chris followed the situation in Ukraine closely with a post on the background of the conflict and the country’s long road to stability. He also wrote a legal primer on the Cossacks and their resurgence in Russia, after video emerged of the militia breaking up a Pussy Riot protest in Sochi.

Kevin is excited about Mark Lewis’ book The Birth of New Justice, and promised to let us know once he has read it whether it lived up to his expectations.

Finally, Jessica listed events and announcements and wrapped up the news.

Have a great weekend!

http://opiniojuris.org/2014/02/22/weekend-roundup-february-15-21-2014/
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Weekly News Wrap: Monday, February 17, 2014

by Jessica Dorsey

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

Africa

Asia

Americas

Middle East

Europe

http://opiniojuris.org/2014/02/17/weekly-news-wrap-monday-february-17-2014/
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Weekend Roundup: February 9-14, 2014

by An Hertogen

The heavy dumping of snow on the US East Coast made for a light dusting of posts this week.

Kevin found the ICTR’s recent acquittal of Augustin Ndindiliyimana after 11 years of pre-trial detention a stain on the tribunal’s reputation. He also was not convinced by Eugene Kontorovich’s use of Belgium’s extension of the right to die to terminally ill minors as an argument to attack on Roper v Simmons, and later replied to Eugene’s response.

For those hungry for more reading: Kevin recommended a post by Sergey Vasiliev on the relationship between Perisic and Sainovic while Julian recommended Stephan Talmon’s book chapter on the question of UNCLOS jurisdiction in Philippines arbitration against China, and Duncan announced the winners of the 2013 ASIL Certificates of Merit.

Finally, Jessica wrapped up the news and I listed events and announcements.

Have a nice weekend!

http://opiniojuris.org/2014/02/15/weekend-roundup-february-9-14-2014/
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Weekly News Wrap: Tuesday, February 11, 2014

by Jessica Dorsey

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

Africa

Asia

Americas

Middle East

Europe

http://opiniojuris.org/2014/02/11/weekly-news-wrap-tuesday-february-11-2014/
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Weekend Roundup: February 2-8, 2014

by An Hertogen

The year is now officially in full swing on Opinio Juris with our first symposium of 2014. Up for discussion were both lead articles of the latest AJIL issue. The first article, on the ECOWAS Community Court of Justice, was introduced here by Karen Alter, Larry Helfer and Jacky McAllister and was followed by comments by Solomon Ebobrah, Kofi Kufuor, and Horace Adjolohoun. Karen, Larry and Jacky’s response can be found here. The second article, by Julian Davis Mortenson and introduced here, discussed the role of travaux préparatoires in treaty interpretation. Ulf Linderfalk offered vigorous two part (1, 2) rebuttal. Other comments came from Richard Gardiner and Bart Szewczyk.  Julian’s reply is here.

Kevin mourned Maximilian Schellcriticized President Obama’s certification concerning US participation in the UN’s Mali stabilisation mission and the ICC; and was even more critical of the ICTY’s OTP request to the Appeals Chamber to reconsider Perisic. On the last issue, Kevin also recommended a post by Bill Schabas.

Julian, who was elected to the ALI, posted on the US’ first public statement China’s South China Sea Nine Dash Line is inconsistent with international law. Deborah tried to keep up up-to-date on the difference between ISIS and al-Qaeda and Peter engaged in a thought experiment on Olympic free agency.

Finally, Jessica listed events and announcements and wrapped up the news.

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

http://opiniojuris.org/2014/02/08/weekend-roundup-february-2-8-2014/
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AJIL Symposium: Reply to Comments on “The Travaux of the Travaux”

by Julian Davis Mortenson

[Julian Davis Mortenson is Assistant Professor of Law at Michigan Law.]

I am most grateful for the thoughtful comments offered by Bart, Richard, and Ulf. Their observations are well-informed, generous, and extremely useful in advancing the conversation about treaty interpretation. So first and foremost, sincerest thanks to each of them.

In my response, I hope (1) to clarify the question that seems principally at issue in the discussion so far, and (2) to suggest how the historical evidence helps answer that question. As Ulf rightly points out, the article’s aim is not to march through a unified field theory of treaty interpretation in the exhaustive fashion of a single subject treatise. It is, rather, to debunk a theoretically central misunderstanding about the interpretive role of travaux under the VCLT as a historical document.

The article is thus fundamentally a historical inquiry. But it also has obvious doctrinal implications. While those implications are not the article’s central concern, I will briefly expand their logic as outlined on page 5 of the draft posted on SSRN. I take some time to spell this out because—with the exception of Richard’s kind and detailed approbation of the historical analysis—the commentaries in this symposium understandably engage less with the particulars of the history than with its doctrinal implications for contemporary interpretive practice.

So here is a sketch of the case for those implications:

  • First:  Every mainstream understanding of treaty interpretation contemplates the use of travaux to resolve ambiguity that remains after the methods described in Article 31 are applied. We argue about the use of travaux in other circumstances. But no one seriously contests that they are not just available but potentially decisive in the face of ambiguity. (This is why any perceived doctrinal circularity is illusory. Since all parties to the debate are in agreement on at least this point, for doctrinal and argumentative purposes we can treat the relevance of drafting history in cases of ambiguity as an axiom requiring no proof.)
  • Second:  The complex, multilayered, and rather-quirkily-drafted provisions of Article 31 and 32 are a textbook example of such ambiguity, both in their individual meanings at the subsection level and in their overall structural interrelationship. One might reasonably rely (for example) on the structural separation of Articles 31 and 32 to conclude that they instantiate an interpretive hierarchy that disfavors travaux. But one might also reasonably rely (for example) on the existence of the “special meaning” and “confirm[ation]” provisions to conclude that they do not. This ambiguity is stubborn, and no amount of deductive gymnastics can make it disappear.
  • Third:  Because the treatment of travaux under Articles 31 and 32 is ambiguous, every mainstream theory of treaty interpretation must concede a potentially decisive role for the VCLT’s drafting history in resolving that ambiguity. Putting it as one might in a legal brief:  assuming arguendo with the most conservative commentators that resort to travaux is available only in the case of ambiguity, that condition is easily satisfied here.
  • Fourth:  Careful review of the VCLT travaux—and it is on this point that the article focuses—demonstrates that Articles 31 and 32 were understood to reject a hierarchical or mechanistic view of interpretation. The holistic view of interpretation adopted by the drafters extended in particular to the use of travaux, which were viewed as automatically incorporated among and conceptually equivalent to the many other (potentially contradictory) indicators of legal meaning enumerated in the VCLT.

With the exception of the last bullet point, these statements are obviously asserted rather than demonstrated. But if each of them holds up, then as a matter of modern legal meaning the VCLT instantiates neither an interpretive hierarchy generally nor a hostility (suspicion, inhospitality, etc.) toward drafting history specifically. The Vienna settlement erected neither barriers, nor thresholds, nor negative presumptions regarding the use of travaux. Instead, it incorporated drafting history as a central and indeed crucial tool for identifying correct legal meaning.

Bart puts his finger right on the most important open question about this bottom line doctrinal conclusion. Given the conceded prevalence of learned professions that such a hierarchy does exist, it’s not out of bounds to argue that subsequent practice under the VCLT conflicts with its original meaning. (Note that, as explored in a shorter paper available here, the VCLT does not tell us how to resolve such a conflict. But bracket that for now.)

Partly because of the stark contradiction that Ulf observes between actual interpretive practice and professions of interpretive principle, however, it is my strong instinct that no such practice has in fact arisen among states parties to the VCLT. But the burden here will be on anyone seeking to dislodge the Vienna settlement. They will have to show, in the precise terms of Article 31, that contrary “subsequent practice in the application of the treaty . . . establishes the agreement of the parties regarding its interpretation.” If you can’t make that showing, then it’s hard to avoid the following doctrinal conclusion:  Drafting history is generally and automatically available as a source of meaning in every single case.  And that’s true even if—as Richard so nicely shows with the meaning of “poison” under the Rome Statute—the particular travaux of a particular treaty might not in fact illuminate a particular question facing a particular interpreter at any particular moment.

http://opiniojuris.org/2014/02/08/ajil-symposium-reply-comments-travaux-travaux/

Weekly News Wrap: Monday, February 3, 2014

by Jessica Dorsey

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

Africa

Asia

Americas

  • In Olympics news, U.S. officials say the first of two American warships heading into the Black Sea in advance of the Olympic Games has sailed from Italy.
  • A 30-foot (9 meter) sailboat with about 30 Cuban refugees aboard docked in the Cayman Islands and passengers said they were hoping to reach Honduras.
  • US President Obama released a certification memorandum that any US armed forces personnel involved in the international stabilization mission in Mali would be immune from prosecution at the ICC.

Middle East

Europe

Oceania

http://opiniojuris.org/2014/02/03/weekly-news-wrap-monday-february-3-2014/
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