Recent Posts

Will There Be a Scottish Precedent?

by Chris Borgen

Since Kosovo’s declaration of independence there has been talk about whether there is a “Kosovo precedent,” and, if so, just what does it mean. The International Court of Justice’s advisory opinion
captured the imaginations of national parties throughout Europe. For example, Aitor Estaban, a representative from Spain’s Basque Nationalist Party (PNV) said that “the main consequence is that Spain cannot keep saying that the international rules don’t allow for a split of the country for a new Basque independent country into the European Union. So I think that should be already over and that’s good news for us.” (See H. Jamar & M. K. Vigness, ‘Applying Kosovo: Looking to Russia, China, Spain, and Beyond After the International Court of Justice Opinion on Unilateral Declarations of Independence’, 11 German Law Journal (2010) 8, 913, 925.)

Will we now add a “Scotland precedent”  as well as  a “Kosovo precedent?”  Today’s referendum in Scotland has been described as a bellwether or a “canary in the coalmine” signaling the future of nationalism within the European Union. There are currently twenty to twenty-five “significant” separatist movements across Europe. (See, Bruno Coppieters, ‘Secessionist Conflicts in Europe’, in D. H. Doyle (ed.), Secession as an International Phenomenon: From America’s Civil War to Contemporary Separatist Movements (2010), 237, 247.) Many writers seem to assume that as Scotland goes so does Catalonia, the Basque Countries, Padania, and any number of other parts of EU countries with their own national aspirations. But is this accurate? Would a “Yes” vote—or even just the fact that there is a vote—form some sort of “Scotland precedent?”

First, what do we mean by “precedent?” At times, commentators  use the word to mean, interchangeably, the strict legal sense of a legally binding decision and the looser political sense of a persuasive analogy that can be drawn from a similar case. What role may Scotland’s referendum have in regards to the nationalist movements elsewhere in the EU? Let us consider the number of legal and political factors at play in just one example: Catalonia.

At first blush, the situation in Catalonia may seem similar to that in Scotland. As a political entity, Catalonia has some similarities to Scotland (if slightly larger). As Bloomberg News explains:

Catalonia is a region in the northeast corner of the Iberian peninsula with about 7.5 million people compared with the 5.3 million who live in Scotland. Its 193 billion-euro economy is about the size of Finland’s and compares with the 150 billion-pound gross domestic product of Scotland.

Like Scotland, Catalonia has a distinct linguistic and national heritage. It has a special status within the Spanish state with greater autonomy and it has a population that has been seeking greater levels of independence, if not full separation and sovereignty. And the regional government of Catalonia has scheduled a referendum on independence for this coming November. For more on the history of Catalonia, see this.

Despite these similarities, most international lawyers could see quickly that a domestic referendum in the UK does not provide binding legal precedent for whether or not a domestic referendum in Spain would actually grant independence to Catalonia. Rather, the issue is one of political precedent: persuasive strength. In an argument supporting Catalonia’s referendum, Carles Boix and J.C. Major wrote in Foreign Affairs that, in their view:

International opinion tends to support this referendum, just as it has supported the one that will be held in Scotland this September or those that took place in Quebec a few years ago. Indeed, finding out where everyone stands would appear to be a necessary step to make an informed decision on how to proceed. And yet the Spanish government has not granted the Catalan authorities the power to conduct what would be a non-binding referendum — something that would be perfectly legal according to articles 92 and 150.2 of the Spanish constitution.

But even if one is to argue that Scotland’s referendum is persuasive authority, one first needs to consider whether the analogy is a good one. And, for that, we need to consider once again the legal and political situation. Continue reading…

Matrix Chambers Is Hiring!

by Kevin Jon Heller

My friends at Matrix Chambers have asked me to post the following job announcement, for established practitioners in international law:

Founded in 2000 to meet the complex challenges of law in the 21st century, Matrix Chambers has 70 members and 7 associate members supported by a dynamic and modern staff team. We have offices in London and Geneva.

Individual members of Matrix Chambers have experience and expertise in a wide range of international law areas including maritime, humanitarian, environmental, boundary disputes, oil and gas disputes, investment treaty disputes, and disputes between States. Members of Chambers attract an increasing amount of private international law work in addition to the public international law cases for which they are renowned for, along with a commitment to developing non-litigation work, including advisory work on Corporate Social Responsibility, investigatory work, and international mediation.

Members act for a full range of clients including individuals, companies, NGO’s, and States. They appear before the major international courts and tribunals, including the International Court of Justice, the International Tribunal for the Law of the Sea, the WTO dispute settlement bodies, and international criminal courts and tribunals, as well as before domestic courts where issues of international law arise. Members also act in ICSID, PCA and other arbitrations. Members are ranked highly in international law in all the major legal directories.

In accordance with its policy of controlled growth, and given the heavy workload of the team, Matrix wishes to recruit additional members to complement the core International Law team. Matrix invites applications from experienced barristers, lawyers, and academics who have an established and exceptional international law practice, either here in England and Wales, or in other jurisdictions.

The successful candidates will need to demonstrate that they are outstanding International Law practitioners with a strong reputation in the international arena, who support the Core Values of Matrix. You can request an application pack by e-mailing recruitment [at] matrixlaw [dot] co [dot] uk or call +44 (0)20 7404 3447.  The deadline for receipt of applications is Friday 12th September 2014.

Any potential applicants who wish to discuss their application may contact Practice Manager Paul Venables (paulvenables [at] matrixlaw [dot] co [dot] uk) or the International Law group coordinator Professor Zachary Douglas (zacharydouglas [at] matrixlaw [dot] co [dot] uk). All applications will be treated in the strictest confidence.

This is an amazing opportunity for the right candidate. Matrix is obviously one of the UK’s best barrister sets, with a particularly strong international-law group — Prof. James Crawford, Philippe Sands QC, Raza Husain QC, Cherie Booth QC, Ben Emmerson QC, Michelle Butler, and many others.

Note that the deadline for applying is coming up soon — a week from today, September 12. You can download the application pack here.

When Treaties Supersede Statutes

by Roger Alford

Anyone familiar with foreign relations law hears the common refrain that treaties almost never supersede statutes under the last-in-time rule. Until recently, it was certainly my understanding that the ancient Supreme Court case of Cook v. United States was the only significant example in which a self-executing treaty trumped an earlier conflicting statute. But my recent research on the last-in-time rule indicates that there are several examples in which that rule has been applied to give effect to a self-executing treaty that conflicts with an earlier federal statute.

In particular, numerous mutual legal assistance treaties (MLATs) have been adopted to facilitate effective investigation and prosecution of criminal activities. These MLATs streamline the process of letters rogatory and guarantee that the United States will provide greater legal assistance with respect to discovery requests by foreign governments for use in criminal proceedings abroad. These treaties are self-executing and conflict with an earlier statute, 28 U.S.C. 1782, which grants courts significant discretion to deny discovery requests based on substantive protections relating to, inter alia, privileged evidence and foreign discoverability. In other words, pursuant to the MLATs, discovery requests are direct and automatic, not indirect and discretionary as required under Section 1782.

For example, in In re Premises Located at 840 140th Avenue NE, Bellevue Washington, the Ninth Circuit held that “a ratified self-executing treaty generally stands on the same footing as a federal statute, that is, a later in time self-executing treaty has the same effect on an existing federal statute as a later-in-time act of Congress.” Consequently, the Ninth Circuit held that, in light of the US-Russia MLAT, courts do not have the broad discretion conferred by Section 1782 to deny the Russian’s request for legal assistance in gathering evidence in the United States.

Similarly, in In re Commissioner’s Subpoenas, the Eleventh Circuit interpreted the US-Canada MLAT as a self-executing treaty that need not comply with the substantive obligations of Section 1782. “A treaty, when ratified, supersedes prior domestic law to the contrary, and is equivalent to an act of Congress…. [T]he Treaty substantively stands on its own as a law and therefore such MLAT requests need not comply with the substantive restrains associated with requests made solely under 28 U.S.C. 1782.” The foreign discoverability requirements recognized by Section 1782 did not apply and the MLAT required issuance of the subpoenas.

Finally, in In re Erato, an American mother had challenged a Dutch discovery request pursuant to Section 1782′s recognition of foreign privilege laws. If Section 1782 controlled the mother would not have to testify against her son because Dutch law recognizes parent-child privilege. The Second Circuit held that “existing law under Section 1782 does not control this case…. the [US-Netherlands MLAT] Treaty is self-executing and … will amend and supplement preexisting law in several aspects. We are bound to give effect to the Treaty because it is self-executing…. To the extent that the Treaty is inconsistent with a preexisting statutory provision, the Treaty supersedes that provision.” Consequently, the court prevented application of foreign testimonial privilege and required the mother to testify against her son.

These cases do not obviate the general point that the last-in-time rule typically results in the enforcement of subsequent statutes that conflict with earlier treaties. But they should at least put to rest the canard that the last-in-time rule never results in the enforcement of self-executing treaties over earlier federal statutes.

Guest Post: Possible Responsibility of Palestinian Authority’s Leadership for the Al Aqsah Martyrs’ Brigade Actions During the Gaza Conflict

by Liron A. Libman

[Col. (reserve) Liron A. Libman is the former head of the International Law Department in the Israel Defense Forces. He is currently a PhD candidate at the Hebrew University of Jerusalem and teaches criminal law at Ono Academic College.]

Recently, there has been extensive discussion regarding a possible Palestinian application to the ICC, and the various complex legal issues that would arise from such a move. Most commentators have cited internal Palestinian politics as the main reason for Abbas’ foot-dragging with regard to approaching the ICC. In essence, the claim is that since Hamas is committing war crimes against Israel, any Palestinian initiative at the ICC would expose Hamas officials to proceedings before the ICC. In fact, the Palestinian Ambassador to the UN Human Rights Council Ibrahim Khraishi has explicitly stated that Hamas’ launching of missiles at civilian objects constitutes a crime against humanity, warning that this makes an application to the ICC problematic for Palestinians (See here).  What is largely overlooked is the commission of similar acts by armed factions of the Fatah party, particularly the Al Aqsa Martyrs’ Brigade. This post will briefly explore evidence of Fatah’s involvement in firing rockets at Israeli civilians, and the possible criminal liability of Palestinian Authority (PA) or PLO officials for those attacks.

The Fatah movement dominates the PA. Palestinian President Abbas is also the political leader of Fatah, which is the largest faction in the Palestine Liberation Organization (PLO). Evidence indicates that the Fatah-affiliated Al Aqsah Martyrs’ Brigade, like Hamas, intentionally directs rocket attacks at Israeli civilians and civilian centers. These attacks are not occasional shootings, attributable to a rogue group of militants – they are regular occurrences. This faction does not try to hide its involvement in these incidents; on the contrary, it takes pride in the attacks and even posts videos of them on its official YouTube channel. See also various reports here and here. For example, on July 25th the Brigades claimed responsibility for targeting Beersheba and Ashdod, two Israeli large cities, with three grad missiles. On July 30th, they claimed responsibility for firing 7 rockets into Israeli cities.

Furthermore, it is interesting to note, that the Fatah Al Aqsah Martyrs’ Brigade was supposedly dismantled following President Abbas’s decree in 2007. Now it has re-emerged, declaring an “open war against the Zionist enemy [Israel]” not just in Gaza but also in the West Bank and Israel within the green line. This declaration was accompanied by a list of attacks carried in the West Bank, mostly against military targets but some against civilian settlements. Until now, no response to this development by President Abbas or the PA leadership was recorded [for more details see: here].

From a criminal law point of view, it is clear that those actually firing rockets towards civilians and into civilian centers, whether they are connected to Hamas, Fatah or other Palestinian factions, are committing war crimes enshrined in article 8(2) of the Rome Statute, inter alia intentionally targeting civilians; since these acts were committed as part of a widespread and systematic attack on the civilian population, it is also possible that they were committing crimes against humanity.

A more complex and interesting question is that of other persons who may be held responsible for these crimes, most particularly among senior PA officials.  Both factual and legal issues would have to be explored in this regard. (more…)

Rebels Holding Peacekeepers Demand UN lift Sanctions

by Kristen Boon

Last week, 45 Fijian peacekeepers deployed as part of a 1,200-member U.N. force monitoring a buffer zone between Syria and Israel were captured and are being held by Nusra Front rebels.   (Hat tip to Theodore Christakis here at the ESIL conference in Vienna for raising the issue yesterday in the ESIL / SHARES Peace and Security Interest Group Seminar.)

Rebels have made three demands for their release, according to a WSJ article published yesterday:

1. They want to be dropped from the list of al Qaeda-linked groups under U.N. sanctions;

2. They are demanding monetary compensation for the deaths of the insurgents who were killed in recent fighting along the Syrian-Israeli border; and

3. They want humanitarian aid for a rebel-controlled area near the Syrian capital Damascus that is surrounded by government troops.

The Security Council responded with a press release yesterday, read by Amb. Samantha Power, in which it “condemned in the strongest terms the detention of 45 Fijian peacekeepers by a Security Council-designated terrorist organization.  They reiterated their call for the peacekeepers’ immediate and unconditional release.  There can never be any justification for attacks on or the detention of UN peacekeepers.”

The demand for delisting is particularly striking. On the one hand, it suggests that targeted sanctions are relevant to this group, whether for practical or symbolic reasons.  On the other hand, there continues to be debate about the Security Council’s legal basis for placing demands on or regulating non-state actors.

In the Kosovo Advisory Opinion, the ICJ indicated the Security Council could create obligations for non-state actors, but the conferral of rights, obligations, and status on subjects of law without their participation in the international law making process continues to be controversial as the ILA’s 2014 report on Non-State Actors explores.  Both the Council’s imposition of sanctions and its demand for the peacekeepers’ immediate and unconditional release in the press statement, (and here it is relevant that press statements are considered decisions of the Council) raise interesting and important issues in international law.

Who Knew Al-Qassam Was the Most Moral Army in the World?

by Kevin Jon Heller

Today’s Jerusalem Post features an article discussing testimony by a former commander of British forces in Afghanistan that purports to demonstrate the IDF takes more care in avoiding civilian casualties than any other army in the world. Here is a snippet:

Israel’s ratio of civilian to military casualties in Operation Protective Edge was only one-fourth of the average in warfare around the world, former commander of British forces in Afghanistan Col. (res.) Richard Kemp told the Knesset Foreign Affairs and Defense Committee Wednesday.

Kemp pointed out that, during the operation, there was approximately one civilian casualty for ever terrorist killed by the IDF, whereas the average in the world is four civilians for every combatant, and that, when taking into consideration Hamas’s use of human shields, this shows how careful the IDF is.

“No army in the world acts with as much discretion and great care as the IDF in order to minimize damage. The US and the UK are careful, but not as much as Israel,” he told the committee.

Kemp, who has long openly admired the IDF’s military tactics and testified in Israel’s favor to the Goldstone Commission following Operation Cast Lead in 2009, visited Israel during Operation Protective Edge.

If this is the metric we should use to determine how much “care” a military takes in its operations, it’s worth noting that the IDF actually runs a distant second in the care department to Hamas’s al-Qassam Brigades. According to the UN’s Office for the Coordination of Humanitarian Affairs (OCHA), the Brigades have killed 65 IDF soldiers and four Israeli civilians during Operation Protective Edge – a staggering 16-1 combatant:civilian kill ratio. According to Col. Kemp’s logic, therefore, the al-Qassam Brigades are at least 4X more careful than the IDF regarding collateral damage to civilians — and 16X more careful than the world army average. Amazing!

NOTE: I do not actually believe that al-Qassam is the most moral army in the world. I provide the analysis to illustrate that absolutely nothing can be learned about how much care a military takes by comparing — in an utterly decontextualised way —  the combatant:civilian kill ratio in one of its operations to the combatant:civilian kill ratios in different conflicts fought by different militaries. To begin with, the jus in bello concept of proportionality is operation-specific: we determine whether an attack is proportionate by comparing anticipated military advantage to expected civilian damage. Inter-conflict comparisons are irrelevant. Moreover, the proportionality of an attack tells us very little about whether that attack was indiscriminate: an indiscriminate attack can involve low civilian casualties, or even none at all, because the concept of discrimination focuses on methods, not on outcomes. Indeed, were it otherwise, it would be difficult to condemn Palestinian rocket attacks on Israeli civilians as indiscriminate, given that more than 12,000 rockets have killed fewer than 30 Israelis in the past 13 years. Those rocket attacks are indiscriminate because they cannot distinguish between legitimate military objectives and civilians, not because they have led to high civilian casualties.

Rolling Stone on Chevron’s Dirty Tricks in the Lago Agrio Case

by Kevin Jon Heller

It’s been a while since I’ve blogged about Chevron’s “Rainforest Chernobyl” — the company’s deliberate dumping of more than 18 billion gallons of toxic waste-water into Ecuador’s Lago Agrio region. But I want to call readers’ attention to a blockbuster new article in Rolling Stone that details the wide variety of dirty tricks Chevron has used to avoid paying the multi-billion-dollar judgment against it in Ecuador. (The plaintiffs filed the suit in the US. Chevron demanded that it be moved to Ecuador, where it expected a friendly government to ensure it would win.) Here is my favorite snippet, discussing the $2 million Chevron paid one of its contractors to create fake laboratories the company could use to “test” Lago Agrio field samples:

We don’t know everything about the soil-and-water testing phase of the trial. But we do have hours of recorded conversations between Santiago Escobar, an Ecuadorean living in Toronto, and a Chevron contractor named Diego Borja.

Borja was already part of the Chevron extended family when the company hired him to transport coolers containing the company’s field samples to supposedly independent labs. His uncle, a 30-year Chevron employee, owned the building housing Chevron’s Ecuadorean legal staff. As he carried out his work, Borja collected more than one kind of dirt. In recorded calls to Escobar in 2009, Borja explained how Chevron’s Miami office helped him set up front companies posing as independent laboratories. (Among his Miami bosses was Reis Veiga, one of the lawyers indicted for corruption in the 1997 Texaco remediation settlement with the Ecuadorean government.)

Borja contacted Escobar because he thought his information might be valuable to the other side. “Crime does pay,” he told Escobar. In the calls, Borja suggests Chevron feared exposure and prosecution under the Foreign Corrupt Practices Act. “If [a U.S.] judge finds out that the company did cooked things, he’ll say, ‘Tomorrow we better close them down,’ you get it?” He boasted of possessing correspondence “that talks about things you can’t even imagine … things that can make the Amazons [plaintiffs] win this just like that.” In awe of Chevron’s power, Borja said the company has “all the tools in the world to go after everyone. Because these guys, once the trial is over, they’ll go after everyone who was saying things about it.” Still, the benefits of working with them were great. “Once you’re a partner of the guys,” he told Escobar, “you’ve got it made. It’s a brass ring this big, brother.”

Borja’s brass ring was ultimately worth over $2 million. Sometime around 2010, he was naturalized at Chevron’s expense and moved into a $6,000-a-month gated community near Chevron’s headquarters in San Ramon, California. Why the company finds his loyalty worth so much is hard to say, because Judge Kaplan blocked further discovery. When asked if Borja is still being paid by the company, Chevron spokesman Morgan Crinklaw said, “Not as far as I know.”

“Kaplan gave Chevron unlimited access to our files,” says Donziger, “but allowed them to maintain a complete iron curtain of privilege over everything related to the misconduct of non-attorneys like Borja and its network of espionage operatives.”

I’m skeptical the Lago Agrio plaintiffs will ever receive the justice they deserve — particularly in a US courtroom. But at least articles like this one help illuminate the lengths to which multinationals like Chevron will go to avoid being held responsible for their actions.

It’s Time to Reconsider the Al-Senussi Case. (But How?)

by Kevin Jon Heller

As readers are no doubt aware, Libya has descended into absolute chaos. As of now, there is quite literally no functioning central government:

Libya’s newly elected parliament has reappointed Abdullah al-Thinni as prime minister, asking him to form a “crisis government” within two weeks even as the authorities acknowledged they had lost control of “most” government buildings in Tripoli.

Senior officials and the parliament, known as the Council of Representatives, were forced last month to relocate from the capital to Tubruq in eastern Libya after fighting broke out between the Dawn of Libya coalition, led by brigades from the city of Misurata, and rival militias based at the city’s international airport.

Since then the airport has fallen to the Islamist-affiliated coalition and Tripoli appears to have slipped almost completely out of the government’s grip.

Mr Thinni’s administration said in a statement posted on its Facebook page late on Sunday night that it had lost control of Tripoli and that its officials had been unable to access their offices, which had been occupied by opposition militias.

“We announce that most ministries, state agencies and institutions in Tripoli are out of our control,” said the government. Some state buildings had been occupied by armed groups and staff, including ministers and undersecretaries, had been threatened and prevented from entering, it said.

“It has become difficult for them to go to their offices without facing either arrest or assassination, especially after several armed formations announced threats against them, attacked their homes and terrorised their families,” the statement added.

The collapse of the Libyan government comes less than five weeks after the ICC Appeals Chamber unanimously decided that the case against Abdullah al-Senussi was inadmissible. In its view at the time — to quote the summary of the admissibility decision — “the case against Mr Al-Senussi is being investigated by Libya and… Libya is not unwilling or unable genuinely to carry out the investigation.”

Whatever the merits of the Appeals Chamber’s decision at the time — and they’re limited — the situation on the ground in Libya has obviously rendered it obsolete. It is now impossible to argue that the Libyan government is “able” to effectively prosecute al-Senussi, no matter how willing it might be. The Court thus needs to reconsider the admissibility of his case sooner rather than later.

Fortunately, the drafters of the Rome Statute anticipated just such a situation. Art. 19(10) specifically provides that  “[i]f the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17.” The OTP should submit such a request as soon as possible; whatever hesitation it once had about forcefully asserting the admissibility of the case, there is now no possible justification for not trying to take control of it.

But what about al-Senussi? Can he challenge the inadmissibility decision? It’s a very complicated issue — but I think the best answer, regrettably, is that he cannot…

Jens Ohlin Joining Opinio Juris

by Kevin Jon Heller

It is my great pleasure to announce that Jens Ohlin, Professor of Law at Cornell, is joining Opinio Juris as its newest masthead member. (Astute readers will have noticed he was added there yesterday!) I doubt Jens needs much introduction, but here is a snippet from his Cornell bio anyway:

Professor Ohlin specializes in international law and all aspects of criminal law, including domestic, comparative, and international criminal law. His latest book, The Assault on International Law, forthcoming from Oxford University Press, challenges the prevailing American hostility towards international law, and offers a novel theory of rationality to explain why nations should comply with international law. 

Ohlin’s research also focuses on the laws of war, in particular the impact of new technology on the regulation of warfare, including remotely piloted drones and the strategy of targeted killings, cyber-warfare, and the role of non-state actors in armed conflicts. His books in this area include Targeted Killings: Law and Morality in an Asymmetrical World (Oxford University Press 2012, with A. Altman & C. Finkelstein); Cyber-War: Law & Ethics for Virtual Conflicts (Oxford University Press forthcoming, with C. Finkelstein & K. Govern); and Defending Humanity: When Force is Justified and Why (Oxford University Press 2008, with George Fletcher). 

We are very lucky to have Jens joining us. In addition to being ridiculously prolific, he is also ridiculously good; I think there is little question that Jens is one of the most important IHL and ICL scholars of his generation. I never fail to learn from his work, even — and perhaps especially — when I disagree with it. I don’t think I’m alone in that; there are very few scholars in IHL and ICL who are so uniformly respected by both the left and the right.

I can’t wait to see what Jens chooses to write about at Opinio Juris. Please join all of us in welcoming him to the blog. And check out his new book!

Weekly News Wrap: Monday, September 1, 2014

by Jessica Dorsey

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

Africa

Asia

Europe

Middle East and Northern Africa

Americas

Oceania

UN

Did Vladimir Putin Call for the Statehood of Eastern Ukraine?

by Chris Borgen

As the military situation in eastern Ukraine become more violent with the incursion of Russian troops, Vladimir Putin has called for talks to determine the statehood of eastern Ukraine. The Interpreter, a website that translates and analyzes Russian media reports, states that in an interview on Russian television Putin said:

We must immediately get down to a substantial, substantive negotiations, and not on technical questions, but on the questions of the political organization of society and statehood in the south-east of Ukraine with the purpose of unconditional provision of the lawful interests of people who live there.

[Translation by website The Interpreter.]

In its analysis of this somewhat cryptic quote, the Interpreter posits:

It is not clear how Putin envisions the “Novorossiya” entity, but given a presentation by his aide Sergei Glazyev yesterday at a conference in Yalta attended by Russian-backed separatists and European far-right party figures, there is a notion to make the amalgamated “Donetsk People’s Republic” and “Lugansk People’s Republic” a member of the Customs Union of which Russia, Belarus, and Kazakhstan are members.

For more on the Eurasian Customs Union, see this previous post.

As for the rhetoric of an independent Novorossiya, described in Foreign Policy as  the rebirth of a forgotton geopolitical term, Anne Applebaum wrote the following this past week in a grim article on Slate:

In the past few days, Russian troops bearing the flag of a previously unknown country, Novorossiya, have marched across the border of southeastern Ukraine. The Russian Academy of Sciences recently announced it will publish a history of Novorossiya this autumn, presumably tracing its origins back to Catherine the Great. Various maps of Novorossiya are said to be circulating in Moscow. Some include Kharkov and Dnipropetrovsk, cities that are still hundreds of miles away from the fighting. Some place Novorossiya along the coast, so that it connects Russia to Crimea and eventually to Transnistria, the Russian-occupied province of Moldova. Even if it starts out as an unrecognized rump state—Abkhazia and South Ossetia, “states” that Russia carved out of Georgia, are the models here—Novorossiya can grow larger over time.

Applebaum notes that for Novorossiya to move from Putin’s rhetoric to political reality will require more than the actions of the Russian army.  “Novorossiya will not be stable as long as it is inhabited by Ukrainians who want it to stay Ukrainian,” she explains.  Moreover, “Novorossiya will also be hard to sustain if it has opponents in the West.” Further sanctions will likely be the centerpiece of the EU and U.S. response.

But while some would say “international law is useless without sanction,” in this case I believe that economic sanctions are not enough without international legal argument.  For the moment, Russia’s strategy seems to be an amalgamation of stealth invasion and quasi-legal rhetoric. The “stealth”  part of the invasion is to maintain a fig-leaf of deniability and to make the uprising in eastern Ukraine seem homegrown as opposed to Russian-led. This strategy of stealth interlocks with Russia’s rhetoric, a quasi-legal/ nationalist amalgamation that attempts to persuade those who can be persuaded and befuddle those who cannot.

However, we are at an inflection point where an important new argument (the apocryphal “once and future Novorissya” argument, in this case) is being sent up like a trial balloon. Perhaps a more accurate metaphor is the idiom: “send it up the flagpole and see who salutes.” Putin and his advisers are sending the flag of Novorissya, figuratively and literally, up the flagpole.

If the EU and U.S. do not want another South Ossetia or Transnistria, then they will have to actively engage Russia’s arguments over what is “right.”  Consider this statement by Putin this week, explaining why the events in Eastern Ukraine confirm that Russia was correct in its actions in Crimea:

Now, I think, it is clear to everyone – when we look at the events in Donbass, Lugansk and Odessa – it is now clear to everyone what would have happened to Crimea, if we had not taken corresponding measures to ensure that people could freely express their will. We did not annex it, we did not seize it, we gave people the opportunity to express themselves and make a decision and we treated that decision with respect.

I feel we protected them.

If the illegality of Russia’s actions is not stressed, if the denial of Ukraine‘s right of self-determination is not emphasized, then the only thing many will hear is the rhetoric of those trying to slice off successive pieces of Ukraine. That rhetoric, unanswered, can reinforce the beliefs of those who want to dismember Ukraine. For others, it may make it seem as if maybe Russia “has a point” and muddy the waters. In both instances, effective sanctions could be perceived as just another example of might overcoming right.  And, rather than resolving the situation, the seeds for further conflict would be planted.

While effective sanctions enforce norms, clear norms strengthen sanctions.

 

 

Events and Announcements: August 31, 2014

by Jessica Dorsey

Events

  • On 23rd and 24th October 2014 the Dresden Research Centre for International Economic Law and the affiliated research project “Global TranSAXion” will be hosting a conference on “Mega-Regionals and the Future of International Trade and Investment Law”. The conference offers a forum to discuss the content and structure of the preferential trade agreements currently under negotiation between some of the world’s major trading partners. The main focus is on the Canada-EU Comprehensive Economic and Trade Agreement (CETA), the Transatlantic Trade and Investment Partnership (TTIP) and the Trans-Pacific Partnership (TPP). Further information about the conference, the registration and the venue can be found here.
  •  An international symposium will track the latest developments in the field of legal theory and legal philosophy and offer an insight into current developments and emerging debates. The overall theme of this year’s conference is “Legal and Philosophical Challenges of Transnational Law”, which is to be analyzed through a variety of substantive and methodological lenses, including: legal theory, legal argumentation, legal philosophy and political philosophy, international law, human rights and ethics. The conference will thus consist of four panels, dedicated to legal theory and legal philosophy; legal argumentation; international law and ethics. A special panel will be reserved for PhD researchers and researchers at an early stage of their career.

Announcements

  • The Institute for Global Law and Policy (IGLP) at Harvard Law School invites you to apply to participate in our 2015 Workshop in Doha, Qatar, from January 2-11, 2015IGLP: The Workshop is an intensive residential program for doctoral and post-doctoral law scholars and junior faculty. The aim of The Workshop is to strengthen the next generation of scholars by placing them in collaboration with their global peers as they develop innovative ideas and alternative approaches to issues of global law, economic policy, social justice and governance. Sponsored by the Qatar Foundation and hosted by Hamad bin Khalifa University, the Workshop brings together more than 100 young scholars and more than 50 senior and junior faculty from around the world for serious research collaboration and debate.The deadline for applications is September 12, 2014. Learn more and apply here today.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.