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Does the ICJ Have Binding Jurisdiction Over the Guyana-Venezuela Border Controversy? Probably, But Maybe Not

by Julian Ku

Last month, the UN Secretary General António Guterres announced that he was referring the longstanding border dispute between Guyana and Venezuela to the International Court of Justice. This decision was made after a long period of mediation by various UN Secretaries-General dating back to 1990.  But as a ICJ jurisdiction nerd, I am curious what the basis of the Secretary-General’s power to refer the dispute to the ICJ is.

It is based on the 1966 Geneva Agreement between the United Kingdom (which was sovereign over Guyana at the time) and Venezuela. That agreement specified a long process of study via a joint commission and then noted that, if agreement on the commission’s report failed, the following process should be undertaken according to Article IV(2):

If, within three months of receiving the final report, the Government of Guyana and the Government of Venezuela should not have reached agreement regarding the choice of one of the means of settlement provided in Article 33 of the Charter of the United Nations, they shall refer the decision as to the means of settlement to an appropriate international organ upon which they both agree or, failing agreement on this point, to the Secretary-General of the United Nations. If the means so chosen do not lead to a solution of the controversy, the said organ or, as the case may be, the Secretary-General of the United Nations shall choose another of the means stipulated in Article 33 of the Charter of the United Nations, and so on until the controversy has been resolved or until all the means of peaceful settlement there contemplated have been exhausted.

There is no doubt that this provision has been invoked, and the Secretary General’s announcement indicated that he deems “the International Court of Justice as the means to be used for the solution of the controversy.”  Article 33 of the UN Charter does list “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice” as options for “pacific settlement of disputes.”  The ICJ would seem to qualify as a “judicial settlement.”

The problem is that it is not clear that Article IV of the Geneva Agreement automatically makes the ICJ’s decision legally binding. Neither Guyana nor Venezuela have accepted the compulsory jurisdiction of the ICJ, so there is no independent basis for jurisdiction.  The Geneva Agreement, I suppose, should be read as delegating to the UN Secretary-General the power to refer their dispute to “judicial settlement.” But it is not clear whether this broad delegation includes any and all forms of dispute settlement, or that those settlements would be binding.

The most natural reading, I concede, is that Venezuela is indeed bound to abide by any ICJ ruling in this case. But I wouldn’t be surprised if Venezuela tries to contest the jurisdiction of the ICJ, or the binding nature of any decision it issues.

The Parochialism of Western Cosmopolitanism in a Competitive World Order

by Anthea Roberts

[Professor Anthea Roberts of Australian National University is the author of numerous publications, including the topic of our joint symposium this week: Is International Law International? This is the first of several posts over the next two days on the argument in her book and reactions to it.]

We are familiar with the question: Is international law law? In my new book, I ask instead: Is international law international? Not particularly, is my answer—at least, not in the way that it tends to be conceptualized by international law academics in different states and in the international law textbooks and casebooks that they use.

When asked to reflect on the professional community of international lawyers, Oscar Schachter memorably called it an “invisible college” whose members were “dispersed throughout the world” yet “engaged in a continuous process of communication and collaboration.” But in rendering that college visible, I find that international lawyers may be better understood as constituting a “divisible college” whose members hail from different states and regions and who often form separate (though overlapping) communities with their own understandings and approaches.

In tracing these divisions and considering their consequences, I make three arguments. First, international lawyers are often subject to differences in their incoming influences and outgoing spheres of influence in ways that affect how they understand and approach international law. Second, actors, materials and approaches from some states and regions have come to dominate certain transnational flows and forums in ways that make them disproportionately instrumental in constructing the “international.” Third, existing understandings of the field are likely to be disrupted by factors such as changes in geopolitical power, making it increasingly important for international lawyers to understand the perspectives of those from unlike-minded states.

My book invites international lawyers to look in the mirror to discern and become more reflective about their blind spots and parochialism. It encourages international lawyers to recognize and speak openly about some of the socializing factors, incentives and power dynamics that shape their divisible college. It suggests that they try to see the field through the eyes of others and to diversify their sources, networks and perspectives. This call is particularly appropriate for Western international lawyers—myself included—who often study, work and publish in a Western bubble, which makes it harder for us to understand and adjust to the newly emerging competitive world order.

From National to Western Parochialism 

In an earlier blogpost titled “With Blinders On?” on Just Security, I argued that US international law often gives the impression of being US foreign relations law under a different name. By way of example, I pointed to how unusually nationalized US international law casebooks were in terms of how heavily they relied upon US cases, executive practice, legislation, academics and publications. This national focus both reflects and reinforces what Samuel Moyn has insightfully described as the “Parochialism of American Cosmopolitanism.” US insularity has many causes and consequences, from American power and exceptionalism to the locations where US international law academics typically study, work and publish.

It is common for other Western international lawyers to see such reports and feel a slight sense of glee or superiority. “Those crazy Americans,” many would say, with a knowing smile and a roll of the eyes, safe in the knowledge that they could not be accused of similar parochialism. Yet one thing that really struck home for me in this study was that though I and many of my Western colleagues were not guilty of national parochialism, we were exceedingly guilty of Western parochialism. This issue seemed to be a fitting one to raise on the European Journal of International Law’s blog and the US blog Opinio Juris.

Let me give you an example that follows from my case citation analysis on Just Security. In that piece, I pointed to how US international law casebooks were the only ones that contained a higher—and, indeed, significantly higher—percentage of cases from their own domestic courts (64%) than from international courts and tribunals (31%). To international lawyers from many other Western states, these results seem ridiculous. But what if one instead asks what percentage of all of the domestic cases cited—whether from a state’s own courts or from foreign courts—come from Western states, by which I mean states in the Western Europe and Others Group? Suddenly, the US books are no longer outliers.

 

Between 96% and 99.6% of the domestic cases cited in the most commonly used international law textbooks in these three Western states (France, the United Kingdom and the United States) come from—you guessed it—Western states. Like most international lawyers, I was aware of a level of Western bias in my field. Nevertheless, I was surprised by how stark it was when I started looking at the numbers. This pattern didn’t seem to deserve the moniker “international.”

Of course, one could leap to argue that perhaps this pattern just reflects the facts on the ground. The vast majority of domestic decisions on international law may actually have been issued in Western states, so this depiction simply reflects reality. I suspect that this is not the whole story. But even if it were, this circumstance should make us consider in more detail the biases built into the very metrics that we use when seeking to understand international law. To what extent do our metrics reflect the approaches to law we are used to dealing with domestically? And to what extent do they give us a skewed understanding of the world by focusing on some states over others?

As an English-speaking, common-law-trained lawyer, I never thought it odd when I first studied international law that an important way to understand the field was through case law, both domestic and international. This study made me much more conscious of the fact that when one applies this metric, it results in outsized emphasis on the practice of Western, democratic states in general, and English-speaking, common-law ones in particular. At the same time, this metric renders almost invisible the practice of non-Western, non-democratic, civil law states. China and Russia have made important contributions to international law practice, but you won’t usually find it in their domestic courts.

Analyzing this issue among others helped me to realize that some of the approaches to international law that seem so natural to certain international lawyers can produce an effect equivalent to looking at the field through blinders. As with the US example above, this parochialism has causes and consequences, from Western power and exceptionalism to the locations where Western international law academics study, work and publish. That many Western international lawyers are trapped in a Western bubble will not surprise anyone from outside the West or those who have read or adopted Third World Approaches to International Law. But it is an uncomfortable reality that few in the West sufficiently acknowledge, let alone contemplate its possible consequences.

From Dominance to Disruption

The ideal of international law suggests that it is constructed by drawing equally on people, materials and ideas from all national and regional traditions. In reality, some national and regional actors, materials and approaches have come to dominate much of the transnational field and international lawyers’ understandings of the “international.” This point holds true for Western actors, materials and approaches in general, and Anglo-American ones in particular. The case law cited above represents a stark example of this pattern, but many others characterize the field as well, ranging from who appears before international courts and tribunals to which sources and practice these courts typically invoke.

Recognizing this situation made me wonder about how some of these patterns might be disrupted by forces such as changing geopolitical power. After the relative hegemony of Western international law approaches in the post–Cold War period, the world is entering into what I refer to as a “competitive world order” in which power is diffusing from West to East and from North to South.  In the coming decades, the international order is unlikely to be dominated by Western, liberal democratic states to the same extent as before. A significant standoff is also emerging between Western, liberal democratic states and non-Western authoritarian ones, most notably China and Russia, across multiple domains.

Three things have become clearer since I completed this book in late 2016. First, the United States and the United Kingdom have seriously stepped back from their position as global leaders following Donald Trump’s election and the Brexit vote. Anglo-American approaches that have featured so prominently in defining international fields in the last few decades seem to be quickly receding in importance. On many issues, from trade to climate change, the West is divided and weakened. American global leadership is in question and its prestige is tarnished.

Second, several non-Western states are more actively seeking to assert themselves on the international stage. China is a prime candidate, exemplified by President Xi’s endorsement of economic globalization and expansive Belt and Road project. But these aspirations underlie many other developments, such as the battle in the recent ICJ elections between India and its former colonial master, the United Kingdom, which led for the first time to a British judge not sitting on the Court. This vote represented a sea change, breaking the traditions of granting the P5 informal permanent seats on the Court and casting votes according to informal regional group quotas.

Third, states are more openly acknowledging the emergence of a new era of great-power politics and ideological competition. Specifically, the December 2017 US National Security Strategy describes a newly emerged “Competitive World” in which great-power competition has returned and it characterizes China and Russia as “revisionist powers” seeking to “challenge American power, influence, and interests” and to “shape a world antithetical to U.S. values and interests.”

In this new competitive global order, international lawyers of all stripes will need to develop a greater awareness of the diverse frameworks and narratives through which international law events are understood and arguments are made around the world. The first step in building this understanding is for international lawyers to diversify their sources and networks in an effort to see the world from different perspectives and through other eyes. The motivation for taking this step can be founded in cosmopolitan idealism (thinking international law should be more inclusive) or hard-bitten realism (along the lines of “know thy enemy”). Either way, knowledge is key, whether one ultimately accepts the alternative approaches as valid or not.

Developing such an understanding can be hard for Western international lawyers because often where we study, work and publish adds little to diversifying our perspectives. Just as those sitting in the United States often find it hard to look beyond their national standpoint, so many Western international lawyers find it hard to look beyond their geopolitical perspective. Our networks and sources are typically not national, but neither are they fully international. Yet, as power becomes more disaggregated among a larger number of more diverse states, international lawyers will experience a heightened need to adopt a “comparative international law” approach to come to grips with these differences.

In seeking to develop such an understanding, international lawyers must also be aware that some transnational flows are likely to be asymmetrical, leading to different patterns of diffusion and knowledge. For instance, elite Chinese international lawyers are far more likely to study in Western states than vice versa. Thus, Western materials and approaches are more likely to be found in China than the reverse (the power of diffusion), but Chinese international law academics are more likely to exhibit broad comprehension of Western perspectives on international law than the reverse (the power of knowledge). As China becomes an increasingly significant international player, it will want to disseminate its own approaches to international law more widely, whereas international lawyers in the West will need to deepen their knowledge of China’s interests, interpretations and approaches.

Conclusion

International law aspires to be universal; but it is also, and inevitably, a deeply human product. No international lawyer can understand all aspects of the field from all viewpoints, myself included. We are all prisoners of our own networks, languages, education, histories and trajectories. For this reason, this book should be understood as a conversation starter rather than the final word on the subject. It seeks to render into words, and provide a framework for understanding and analyzing, experiences that many international lawyers have had and yet are often not spoken about or are confined to conversations over cocktails rather than deemed worthy of scholarly treatment.

It is this sort of dialogue that I am grateful to be starting with this thought-provoking collection of international lawyers. This book raises many questions and offers only some answers. I am not yet sure what it all means or where we go from here. As the very definition of a parochial English-speaking, Western international lawyer, I have much to learn and I look forward to seeing my book—and the transnational field of international law—through the eyes of my interlocutors.

Introducing the Opinio Juris/ EJIL:Talk! Joint Symposium on Anthea Roberts’ “Is International Law International?”

by Julian Ku

We are thrilled to announce that over the next few days we will be co-hosting with EJIL:Talk! a discussion of Anthea Roberts’ new prize-winning book Is International Law International? (Oxford University Press, 2017). The book has recently been awarded the American Society of International Law’s  2018 Certificate of Merit for “Preeminent Contribution to Creative Scholarship.” As the ASIL Book Awards Committee states:

In this book, Professor Roberts takes us along as she chases the title’s question down an international law rabbit-hole to reveal a topsy-turvy world in which international law is parochial and the invisible college is rendered visible. Roberts turns a beguilingly simple question into a globe-trotting, multi-method quest for a map of international law’s players and meanings. Simultaneously irreverent and serious-minded, Roberts develops an original research agenda that takes her and the reader through the migratory flows of international lawyers around the world, the divergent methods through which they are educated, and the different professional tracks through which they are socialized. The book does not just dissolve international law’s myths of universality; it is a nascent sociology of the field of international law and the beginning of a new field of comparative international law. In an era in which Western dominance over international law no longer looks certain, this book provides the tools for a more nuanced understanding of international law’s politics, revealing the deeper meanings and stakes of current debates.

To discuss the book’s findings and main claims, EJIL:Talk! and Opinio Juris have assembled a distinguished group of international lawyers from all over the world. The discussants on EJIL:Talk! will be Professors Hélène Ruiz Fabri (Max Planck Institute Luxembourg for Procedural Law) , Vera Rusinova (National Research University ‘The Higher School of Economics’, Moscow), Bing Bing Jia (Tsingua University, Beijing). On Opinio Juris, the discussants will be Professors Paul Stephan (University of Virginia), Julian Ku (Hofstra Law School) and Marko Milanovic (University of Nottingham). . We are grateful to all of them for taking part in this discussion.The symposium will open with a post later today on both blogs by Anthea introducing her book. Readers are invited to join the discussion with comments on the posts.

Letter to the Israeli AG About the Deportation of African Asylum Seekers

by Kevin Jon Heller

The following is an open letter sent by 25 of the most eminent Israeli international lawyers to Dr. Avichai Mandelblit, Israel’s Attorney General, explaining why the government’s move to expel thousands of African asylum seekers from Israel violates international law. I think the letter, which is brilliantly argued, will be of great interest to our readers.

The letter is long, so I’ve put it after the break. Here are the signatories:

Prof. Orna Ben-Naftali, College of Management Academic Studies
Prof. Eyal Benvenisti, Tel Aviv University and Cambridge University
Prof. Tomer Broude, Hebrew University
Prof. Iris Canor, College of Management Academic Studies
Atty. Avinoam Cohen, Tel Aviv University and the College of Management Academic Studies
Dr. Natalie Davidson, Tel Aviv University
Prof. Aeyal Gross, Tel Aviv University
Prof. Guy Harpaz, Hebrew University
Prof. Moshe Hirsch, Hebrew University
Dr. Tamar Hostovsky Brandes, Ono Academic College
Prof. David Kretzmer, Hebrew University and Sapir College
Dr. Tally Kritzman-Amir, College of Law and Business
Dr. Eliav Lieblich, Tel Aviv University
Dr. Doreen Lustig, Tel Aviv University
Dr. Itamar Mann, Haifa University
Dr. Tamar Megiddo, Hebrew University
Prof. Frances Raday, Hebrew University and College of Management Academic Studies
Dr. Daphne Richemond Barak, Interdisciplinary Center Herzliya
Prof. Yael Ronen, Sha’arei Mada Umishpat Academic Center
Dr. Yaniv Roznay, Interdisciplinary Center Herzliya
Prof. Yuval Shany, Hebrew University
Dr. Sivan Shlomo-Agon, Bar-Ilan University
Dr. Michal Saliternik, Netanya Academic College
Prof. Muhammad Watad, Zefat Academic College
Dr. Reuven (Ruvi) Ziegler, Reading University and Oxford University

For questions and communications regarding this memorandum, contact Itamar Mann at imann [at] univ [dot] haifa [dot] ac [dot] il.

Mladic Convicted

by Jens David Ohlin

The ICTY Trial Chamber announced today its verdict in Prosecutor v.  Ratko Mladić and has found the defendant guilty and sentenced him to life in prison. (The judgement summary, which was read aloud in court, is available here. I don’t see a link to the full judgement; if someone else has it, please provide a link in the comments below.) Although this outcome was widely expected by most court observers, the details of the decision merit some discussion.

First, the Chamber found Mladić guilty of genocide in Srebrenica but not of genocide in the other provinces. According to the court (from the oral summary):

The Chamber then examined the specific intent of the physical perpetrators. The Chamber found by majority, Judge Orie, dissenting, that the physical perpetrators in Sanski Most, Vlasenica, and Foča, and certain perpetrators in Kotor Varoš and Prijedor Municipalities intended to destroy the Bosnian Muslims in those Municipalities as a part of the protected group. The Chamber then considered whether the targeted part constituted a substantial part of the protected group, and concluded that the Bosnian Muslims targeted in each municipality formed a relatively small part of the protected group and were also in other ways not a substantial part. Consequently, the Chamber was not satisfied that the only reasonable inference was that the physical perpetrators possessed the required intent to destroy a substantial part of the protected group of Bosnian Muslims.

This finding is consistent with other cases where the ICTY has failed to conclude that the crimes committed in these municipalities amounted to genocide. But the genocide finding for Srebrenica was reaffirmed in Mladić.

As for modes of liability, Mladić was found guilty of participating in four joint criminal enterprises. As far as I can tell from the court’s oral summary, the chamber convicted Mladić in each case of JCE I, meaning that the chamber concluded that the defendant shared the intent to carry out the crimes of the JCE (its objective). There is no reference to JCE III, i.e. liability for crimes committed by other members of the enterprise that fall outside the scope of its design but which were reasonably foreseeable. It seems as if the court felt it unnecessary to rely on the controversial JCE III, preferring instead to simply rest its conclusions on the more stable and secure JCE I theory.  (If I have misread the judgement summary in this regard, please correct me in the comments.) If this is what happened, the court has preserved JCE III as a viable theory by removing an opportunity for judicial scrutiny of the doctrine at the appeal level.

The four joint criminal enterprises were described in the following manner:

First, an Overarching JCE, which had the objective of permanently removing Muslims and Croats from Serb-claimed territory in Bosnia-Herzegovina, through the commission of the crimes charged in the indictment, including Genocide, Persecutions, Extermination, Murder, the inhumane act of forcible transfer, and Deportation.

Second, a Sarajevo JCE, which had the objective of spreading terror among the civilian population through a campaign of sniping and shelling as charged in the indictment including through murder, acts of violence the primary purpose of which is to spread terror among the civilian population and Unlawful Attacks on Civilians.

Third, a Srebrenica JCE, the objective of which was the elimination of Bosnian Muslims in Srebrenica through the crimes charged in the indictment, including Genocide, Persecutions, Extermination, Murder, the inhumane act of forcible transfer, and Deportation.

Fourth, a Hostage-taking JCE, the objective of which was taking UN personnel hostage to prevent NATO from conducting air strikes against Bosnian-Serb military targets through the crime of Taking of Hostages, as a war crime.

One question I have is the relationship between the “Overarching JCE” and the other JCE. This isn’t exactly spelled out in the summary and it will be interesting to read the full judgement to understand their exact relationship. Are the second, third, and fourth JCEs merely sub-components of the overarching JCE? Or are these overlapping JCEs? How should we understand their geometric inter-relation? Furthermore, does describing one of the JCEs as “overarching” have some consequence for the application of the doctrine to the facts of this case? I would welcome thoughts from readers on this point.

Finally, with regard to the hostage-taking JCE, it is interesting to read the chamber’s conclusion that the defendant “intended the objective of the hostage-taking joint criminal enterprise, to capture UN personnel and detain them in strategic military locations to prevent NATO from launching further air strikes. The Chamber found that the Accused’s statements, in particular with regard to the fate of UNPROFOR personnel, were tantamount to having issued threats to continue to detain or to kill UN personnel, and that these threats were meant to end the air strikes.”

I also found it interesting that the chamber declined to give the defendant a reduction from a life sentence just because the defendant was acquitted on one count (genocide in the municipalities). Rather than looking at the significance of that acquittal for purposes of determining the appropriate sentence, the chamber looked to the significance of the convictions to determine Mladić’s blameworthiness.

The appeal in the case will be heard by the Mechanism (MICT).

Call for Submissions / Nominations: The Francis Lieber Prize

by Chris Borgen

The American Society of International Law’s Lieber Society on the Law of Armed Conflict awards the Francis Lieber Prize to the authors of publications that the judges consider to be outstanding in the field of law and armed conflict.  Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.
 
Criteria:         Any work in the English language published during 2017 or whose publication is in final proof at the time of submission may be nominated for this prize.  Works that have already been considered for this prize may not be re-submitted.  Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.
 
Eligibility:       Anyone may apply for the article or book prize.  For those in academia or research institutions, the prize is open to those who are up to 8 years post-PhD or JD or those with up to 8 years in an academic teaching or research position. Membership in the American Society of International Law is not required.  Multi-authored works may be submitted if all the authors are eligible to enter the competition.  Submissions from outside the United States are welcomed.
 
Submission:     Submissions, including a letter or message of nomination, must be received by 10 January 2018.  Three copies of books must be submitted.  Electronic submission of articles is encouraged. Authors may submit their own work.  All submissions must include contact information (e‑mail, fax, phone, address) and relevant information demonstrating compliance with eligibility criteria.  The Prize Committee will acknowledge receipt of the submission by e‑mail. 
 
Printed submissions must be sent to:
 
Professor Laurie Blank
Emory University School of Law
1301 Clifton Road
Atlanta, Georgia  30322
USA
 
Electronic submissions must be sent to:
 
 Lblank[at]emory.edu
 
Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.
 
Prize:   The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prize consists of a certificate of recognition and a year’s membership in the American Society of International Law.  The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2018. 
 
In 2017, the winners were:
 
Book prize:
— Kenneth Watkin, “Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict” (OUP 2016)


Article prize:

— Tom Dannenbaum, “Why Have We Criminalized Aggressive War?,” 126 Yale Law Journal (2017)
 

 

Ghana v. Côte d’Ivoire: Unilateral Oil Activities in Disputed Marine Areas

by Xuechan Ma

[Xuechan Ma, PhD candidate at Grotius Center for International Legal Studies of Leiden University, the Netherlands, researching on the topic of international cooperation in disputed marine areas; L.L.M. & L.L.B. at Peking University, China. Email: maxuechan [at] gmail [dot] com.]

The Special Chamber of the ITLOS delivered its judgement of the Ghana v. Côte d’Ivoire case on 23 September 2017, which pertained to unilateral oil activities in disputed marine areas. Both parties agreed that the dispute concerned the establishment of a single maritime boundary to delimit the territorial sea, exclusive economic zone (EEZ) and continental shelf, including the continental shelf beyond 200 nautical miles, between them in the Atlantic Ocean. While both parties concurred that there was no formally concluded delimitation agreement between them, they disagreed as to whether there had been a maritime boundary established by a tacit agreement. Ghana argued that both parties had recognized and respected a maritime boundary in the area concerned on the basis of a tacit agreement which had been developed or confirmed as a result of the oil activities of both parties over years. By contrast, Côte d’Ivoire claimed that such a tacit agreement did not exist and that the oil practice of Ghana in the disputed marine areas should be deemed a violation of international law, including Article 83(3) of United Nations Convention on the Law of the Sea (UNCLOS).

Notably, the oil activities discussed in this case are unilateral due to the absence of any provisional arrangement between the parties. This case indeed contains two interlinked legal issues in relation to unilateral oil activities in disputed marine areas. The first issue pertains to the legal effect of unilateral oil activities. Put differently, can such oil activities improve the legal position of the parties to the dispute? The second issue is about the legality of unilateral oil activities. In other words, are such unilateral activities in contravention of certain international obligations undertaken by a State to a marine dispute? These two issues are interlinked in the sense that if these activities are deemed illegal, it is impossible to conclude that such activities can contribute to the improvement of the legal position of the party who undertakes them. The reason is quite simple: otherwise it would entail positive implications for the illegal conduct of States. Nevertheless, the converse is not necessarily true. Even if unilateral oil activities cannot have any legal effect on improving a State’s legal position, they are not necessarily deemed illegal.

The Special Chamber first addressed the issue about the legal effect of unilateral oil activities. In its view, evidence for the purpose of establishing a tacit agreement regarding a maritime boundary should be compelling. In the present case, the Special Chamber considered that the mutual, consistent and long-standing oil practice and the adjoining oil concession limits alleged by Ghana might reflect the existence of a maritime boundary or might be explained by other reasons. Thus, it was not convinced of the existence of a tacit agreement in relation to a maritime boundary in the area concerned. Moreover, the Special Chamber explicitly concluded that the all-purpose nature of the maritime boundary meant that evidence relating solely to the specific purpose of oil activities in the seabed and subsoil could not be determinative of the extent of the boundary. In addition, it also concluded that in principle the location of oil resources could not be considered a relevant circumstance in maritime delimitation and that the only exception to this principle is that the delimitation was “likely to entail catastrophic repercussions for the livelihood and economic well-being of the population of the countries concerned”. Nevertheless, Côte d’Ivoire had not advanced any arguments which might have led the Special Chamber to be convinced that the situation in this case constituted the aforementioned exception.

As mentioned above, the lack of legal effect on improving a State’s legal position does not necessarily indicate that unilateral oil activities should be deemed illegal. Hence, the Special Chamber had to deal with the issue of legality separately. Indeed, this issue was entertained by the Special Chamber during the proceedings of provisional measures. Côte d’Ivoire requested Ghana be ordered to suspend all ongoing oil exploration and exploitation operations and refrain from granting any new operations in the disputed area. The Special Chamber admitted that both the ongoing and future exploration and exploitation activities would result in significant and permanent modification of the physical character of the area in dispute and thus create a risk of irreversible prejudice to the rights of Côte d’Ivoire and also cause harm to the marine environment. However, it also noted that suspending Ghana’s ongoing activities in respect of which drilling had already taken place would not only entail the risk of considerable financial loss to Ghana and its concessionaries, but also pose a serious danger to the marine environment, particularly caused by the deterioration of equipment. In this light, it considered that an order suspending all ongoing activities would cause prejudice to the rights claimed by Ghana and create an undue burden on it. Hence, the Special Chamber issued an order of provisional measures requesting that Ghana refrain from conducting any new drilling in the disputed area and authorizing Ghana to continue the ongoing drilling in the disputed area as long as it carried out strict and continuous monitoring of all activities undertaken by it or with its authorization “with a view to ensuring the prevention of serious harm to the marine environment”.

This finding seems to contradict previous jurisprudence. In the Guyana v. Suriname case, Suriname claimed that by allowing its concession holder to undertake exploratory drilling in the disputed marine areas Guyana violated its obligation not to jeopardize or hamper the reaching of the final agreement as provided by Article 83(3) of UNCLOS. The tribunal took the position that exploitation of oil and gas reserves as well as exploratory drilling belonged to activities of the kind that lead to a permanent physical change to the marine environment and thus should be prohibited in disputed waters. On this basis, the tribunal concluded that “Guyana’s authorisation of its concession holder to undertake exploratory drilling in disputed waters constituted a violation of its obligation to make every effort not to jeopardise or hamper the reaching of a final agreement on delimitation”.

In the present case, Ghana argued that this case should be distinguished from the Guyana v. Suriname case in the sense that the latter involved wholly new and unilateral activities that had been undertaken following the emergence of the dispute, namely the critical date, while in this case, Ghana’s activities were “simply the continuation of decades of previous activity of a kind which would have been conducted by Côte d’Ivoire”. By this argument, Ghana implied that its ongoing activities were a normal continuation of acts conducted prior to the critical date and thus could not be deemed illegal. However, the Special Chamber had already negated the relevance of the notion of critical date in the present case on the ground that the activities of both parties in the maritime area concerned had not changed over years. In fact, even if the notion of critical date were held to be relevant in this case, Ghana’s argument would still be untenable because it mixed two issues, namely the legal effect and the legality of unilateral acts. The notion of critical date is only relevant to the legal effect of unilateral oil activities. Put differently, unilateral oil activities as a normal continuation of acts prior to the critical date could not improve the legal position of the party which relied on them. However, this cannot lead to a conclusion on whether such unilateral activities should be deemed legal or illegal.

Nevertheless, there is indeed some difference between the Guyana v. Suriname case and the present case. The oil activities involved in the former case only included exploratory drilling and did not include any actual exploitation operation. Consequently, the suspension of such activities would not entail the risk of considerable financial loss to Guyana and its concessionaries and pose a serious danger to the marine environment particularly caused by the deterioration of equipment. By contrast, in the present case, the oil practice included oil concessions, seismic surveys and exploration and drilling activities. The extent and intensity of the unilateral oil activities undertaken by Ghana were much greater than that of Guyana. Consequently, suspending Ghana’s activities would cause prejudice to the rights claimed by Ghana and create an undue burden on it. Moreover, it is generally accepted that an international court or tribunal can only prescribe provisional measures when there is “a real and imminent risk that irreparable prejudice may be caused to the rights of the parties in dispute”. Therefore, a provisional measure could not itself cause prejudice to the rights of both parties in dispute. In this light, it is understandable why the Special Chamber had refused to order Ghana to stop all ongoing drillings in the disputed area during the proceedings of provisional measures.

Furthermore, it is worth noting that the standard for an activity to be qualified as a provisional measure differs from that for an activity to be considered not hampering or jeopardising the reaching of a final agreement. The tribunal has confirmed in the Guyana v. Suriname case that the former standard has a higher threshold than the latter. In other words, activities qualified as a provisional measure can be considered not a violation of the obligation not to hamper or jeopardize the reaching of a final agreement under Article 83(3) of UNCLOS. But the converse is not necessarily true. In the present case, the fact that the Special Chamber did not order the suspension of ongoing oil exploration and exploitation operations as a provisional measure could not indicate that such ongoing activities did not violate the obligation under Article 83(3) of UNCLOS.

It is a pity that the Special Chamber missed the opportunity to further address the compliance of Ghana’s unilateral oil activities in the disputed marine area with Article 83(3) of UNCLOS. Côte d’Ivoire had requested the Special Chamber to declare that unilateral activities undertaken by Ghana after the issuance of the provisional measures “in the Ivorian maritime area” constituted a violation of the obligation not to jeopardize or hamper the reaching of the final agreement as provided by Article 83(3) of UNCLOS. The Special Chamber opted not to explicitly address the real issue as to whether the unilateral oil activities undertaken by Ghana in the disputed area constituted a violation of the obligation set forth by Article 83(3) of UNCLOS. It simply concluded that the activities of Ghana did not meet the qualification of the relevant submission of Côte d’Ivoire since such activities took place not “in the Ivorian maritime area” but in an area attributed to Ghana. This finding implies that unilateral oil activities would not be deemed illegal as long as relevant areas of oil operations are found to belong to the party who has undertaken the activities.

To conclude, the judgement in this case contributes to clarifying the legal effect of unilateral oil activities in disputed marine areas. It is explicitly declared that unilateral oil activities have no legal effect on improving the legal position of a State to a marine dispute. However, by circumventing the issue about the legality of unilateral oil activities in disputed marine areas, this case may have negative impact on other unsettled marine disputes around the world. Following this jurisprudence, an international court or tribunal could not order a provisional measure to suspend ongoing unilateral oil activities in marine area in dispute as long as the extent and intensity of such oil activities are so great that suspending such activities would cause irreparable prejudice to the right of the party who undertakes such activities. In this sense, it can be imagined that States to a marine dispute would be motivated to undertake as many unilateral oil exploration and exploitation activities as possible since these unilateral activities would not be deemed illegal provided that relevant marine areas of oil operations are found to belong to them in the end.

International Law Pays No Homage to Catalonia’s Declaration of Independence

by Julian Ku

International law is famously mushy and subject to a variety of interpretations.  But there are some issues upon which there is more consensus under international law, such as the illegality of Russia’s annexation of Crimea.  But is there any reasonable argument favoring the legality of the Catalan Parliament’s recent declaration of independence from Spain?  I don’t think so.

At the outset, it is worth reminding ourselves, as Chris does in this post on Crimea, that there is no right to secede under international law. Chris argues that secession is a factual question: it has either occurred or it has not occurred.  But he says that legality of secession remains contested by international lawyers.

I agree with Chris that there is no right to secede under international law (see my post on Calexit here), but I would add that secession is generally only legal under international law when the parent state gives consent to secession.  Such consent might occur after a civil war or rebellion, but it seems a necessary formality to legalize a secession.  On the flip side, as is the case in both Spain or the United States, the domestic law of a parent country usually prohibits secession absent such consent.  Section 2 of the Spanish Constitution of 1978 begins by declaring that is based on “on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards.” Similarly, the U.S. Supreme Court decided in the 1869 Texas v. White decision that “[w]hen Texas became one of the United States, she entered into an indissoluble relation,”

Thus, there is no international legal right to secede, and it is usually (and appears clearly) illegal for Catalonia to do so under Spanish constitutional law.  It is for this reason that I do not think there is any reasonable argument that the Catalan declaration of independence is lawful or protected by international law.

The Catalans might (and do) fall back on invocations of the international right of self-determination.  Such a right does indeed exist under international law, but it is highly doubtful that such a right justifies secession in the case of Catalan. The right of self-determination does not guarantee the right of secession.  Moreover, as the Supreme Court of Canada rightly held in the case of Quebec:

A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.

Unlike Serbia under Milosevic with respect to Kosovars, Spain is a state which has granted Catalonians representation on the basis of equality and without discrimination. It is also not a situation of decolonization, as Professor Sterio explained on OJ here.   I just don’t see a credible argument here that the situation of the Catalonians triggers some kind of “external” right of self-determination.

Does this matter? At the margins, the lack of legality for the Catalans’ declaration of independence probably bolsters the unwillingness of any foreign state to recognize Catalonia as an independent state. I am doubtful legality is decisive here, but it certainly weakens what is already a pretty weak Catalan case for independence.

Upcoming Event on UN Accountability

by Kristen Boon

I am pleased to announce an upcoming experts workshop on UN Accountability on October 19 at Seton Hall Law School.

This workshop will explore the liability of International Organizations for international wrongs, as well address direct, indirect or shared responsibility. It will offer a detailed examination of accountability, and what models of external and internal international dispute resolution currently exist, and should exist in the future. In light of the recent suggestion that victims of international wrongs should be made whole by charitable contributions, it will also discuss redress and compensation for victims of international wrongs.  

The keynote address will be given by Professor Philip Alston on The Strengths and Weaknesses of External Accountability.

The program will end with a book launch of the Research Handbook on UN Sanctions and International Law, edited by Professor Larissa van den Herik.

We would welcome participants interested in the subject. After the event, a group will go to the opening panel of ILW at the NYC Bar Association.

For the complete program, and to RSVP please see the webpage here.

 

Apparently Perfidy Is Not Prohibited in 2256

by Kevin Jon Heller

I have just started watching Star Trek: Discovery, the first new Star Trek series in a decade. It’s excellent — dark, well-acted, with beautiful special affects. But I have to say that it was shocking to see the Captain of a Federation starship engage in a blatantly perfidious act in the second episode. The Federation has just come out on the losing end of a major battle with the Klingons. Captain Georgiou transports a photon torpedo into the torso of a dead Klingon, the lead Klingon ship retrieves the dead Klingon for burial, and… boom, the Klingon ship is disabled, with hundreds if not thousands dead.

As I have explained in a scholarly article, it is perfidious to use a booby-trap in a manner that violates the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices. Art. 2(4) of the Protocol defines a booby-trap as “any device or material which is designed, constructed or adapted to kill or injure, and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act.” And Art. 7(1)(b) specifically provides that “it is prohibited in all circumstances to use booby-traps and other devices which are in any way attached to or associated with… sick, wounded or dead persons.” Captain Georgiou’s use of a booby-trapped dead Klingon to disable the Klingon ship was thus unequivocally perfidious.

The Star Trek universe always presents the Federation as the height of legal and moral rectitude. At least for one episode of Star Trek: Discovery, that was not the case.

A Farewell Note from Professor M. Cherif Bassiouni

by Julian Ku

As most of our readers know, Professor M. Cherif Bassiouni, a leading figure in the creation of the field of international criminal law, passed away yesterday at the age of 79. Professor Bassiouni had a large email list of friends and acquaintances, and his email account sent out one last posthumous message last night. We are posting it here for those of you who did not receive it. Please feel free to leave any notes and comments below on your memories of Professor Bassiouni or how his work affected you. 

Oona Hathaway and Scott Shapiro’s New Book “The Internationalists”

by Deborah Pearlstein

I have a review up at the Washington Post. A great read.