Recent Posts

Is Violating “Serious Obligations” of the INF Treaty the same as its “Material Breach”?

by Duncan Hollis

A few hours ago, the NY Times broke a story that the United States views Russian tests of a ground-launched missile as violating the 1987 INF treaty, formally (and lengthily) titled, “The Treaty Between The United States Of America And The Union Of Soviet Socialist Republics On The Elimination Of Their Intermediate-Range And Shorter-Range Missiles”.  According to the story, the State Department will publicly issue a report that says, among other things:

The United States has determined that the Russian Federation is in violation of its obligations under the I.N.F. treaty not to possess, produce or flight test a ground launched cruise missile (GLCM) with a range capability of 500 kilometers to 5,500 kilometers or to possess or produce launchers of such missiles,”

In addition, President Obama has notified Russian President Putin of the U.S. charges in a letter delivered today.

The U.S. move adds a new brick to the wall of tensions building in the U.S.-Russian relationship (others include Crimea, Russian support for Eastern Ukrainian separatists, the MH17 tragedy, not to mention Edward Snowden’s continuing presence in Moscow).  I assume the timing of the U.S. accusations is no accident.  Moreover, I find it interesting that in so many of these recent crises with Russia, the United States has consistently relied on law and legal argumentation to push against Russia’s actions (or inaction).  This case may be the most extreme example of such an approach since the issue here is entirely one of international law and treaty interpretation.  As such, it’s very much in the wheelhouse of Opinio Juris and its readers. I thought I’d start the conversation with a few preliminary thoughts (emphasis on the “preliminary” since we don’t have too many details to go on as yet).

For starters, the precise language used to describe Russia’s tests — a violation of its obligations under the I.N.F. Treaty” — appears quite significant (especially where it comes after reportedly extensive deliberation). Certainly, the concept of a violation is easy to grasp and has important political implications. For treaty lawyers, however, the term “violation” is not the language we’d expect to see where there’s non-compliance with a treaty’s terms. The Vienna Convention on the Law of Treaties (VCLT), which sets the customary international law rules in these cases, describes violations in terms of a treaty’s “breach”  More specifically, it articulates a set of remedies where breaches are “material” (see VCLT Article 60 here).  In this case, however, that key adjective — “material” — is nowhere to be found, suggesting the United States is not looking to invoke this VCLT provision.  But even if it were, in a move that has stumped generations of international law students, the VCLT’s remedies for a treaty’s material breach are quite limited — they entitle the non-breaching party to suspend or terminate its own obligations under the treaty in whole or in part (the VCLT also adds some procedural hurdles but these are largely ignored in State practice). Of course, there’s no evidence suggesting that the U.S. has any intention of suspending or terminating the INF Treaty; on the contrary, U.S. interests seem to lie squarely on keeping Russia obligated by the treaty as long as possible and forestalling any Russian move to withdraw from the INF Treaty (which Article XV allows it to do).  Simply put, the United States does not appear to consider Russia’s behavior as a material breach of the INF treaty nor want the remedies that label conveys; such a path would actually undercut the stability of the INF treaty’s continued performance for which the United States is pushing.

Second, just because the VCLT remedies are undesirable does not foreclose the United States from all legal leverage in this case. By using the term “violation . . . of obligations” the United States may be invoking a different set of international law rules … those of State responsibility.  Although the United States has been ambivalent to the UN’s Draft Articles on State Responsibility, those articles elaborate a detailed sets of obligations, rights and remedies where a State commits an internationally wrongful act (defined to include a breach of treaty obligations).  The offending State is required to cease (and not repeat) non-compliant behavior and the injured State(s) may engage in “counter-measures” to induce such a return to compliance. These counter-measures may include behavior previously categorized as a retorsion (lawful behavior such as canceling foreign assistance done in response to a prior breach) and a reprisal (behavior that would be unlawful but for the existence of the prior breach).  At present, the types of U.S. responses on offer described in Michael Gordon’s story are likely retorsions, but I assume other measures, including reprisals, could follow if Russia does not respond appropriately.

Taken together, these moves lend support to Bruno Simma and Christian Tams argument in my book that the law of state responsibility has proven more attractive to States than the VCLT’s remedies for treaty breach. That said, I do not mean to suggest that the VCLT is entirely irrelevant to this case.  On the contrary, its provisions on interpretation (Articles 31-33) are likely central to the U.S. claim of a Russian violation.  What’s more, I’d expect Russia to offer its own interpretation to the contrary employing the same interpretative framework (not to mention counter-claims of U.S. violations as described in tonight’s story).

All in all, there’s quite a bit here that should be of interest not just to those who care about arms control and nonproliferation, but international law and international relations more generally.  I’d be interested to hear what others think the U.S. claim suggests and how you see things playing out? Comments welcome.

Guest Post: Self-Defence – Weapons, Lawful Commands, Duty to Retreat and Summary

by Ian Henderson and Bryan Cavanagh

[Ian Henderson is a group captain in the Royal Australian Air Force and is currently posted as the Director Military Law Centre and Deputy-Director Asia-Pacific Centre for Military Law. Bryan Cavanagh is a squadron leader in the Royal Australian Air Force and is currently posted as a legal training officer at the Military Law Centre and Asia-Pacific Centre for Military Law. This note was written in their personal capacities and does not necessarily represent the views of the Australian Government or the Australian Department of Defence. This is the third in a four-part series. The first post can be found here (along with a response here) and the second post here.]

This is the third in a series of four posts that address the relationship between self-defence and LOAC.  In this post we compare how LOAC and the law of self-defence deal with a number of discrete issues like use of prohibited weapons, obedience to lawful commands, and a ‘duty’ to retreat. It also provides a table which summarises the main points in the first three posts.

Can you use a poisoned bullet to protect yourself in self-defence?

The Law of Armed Conflict (LOAC) prohibits the use of certain weapons. Under the Rome Statute and the Australian Commonwealth Criminal Code, it is a war crime to employ poison or poisoned weapons, prohibited gases, or prohibited bullets.In contrast, the law of self-defence does not specifically address the means of response to a threat, but rather merely requires the response to be necessary, reasonable and proportional.

Under the Australian Criminal Code and the Rome Statute, there is no limitation on pleading self-defence only to crimes relating to the use of force. Therefore, the use of a prohibited weapon would be consistent with self-defence analysed under the Australian Criminal Code and the Rome Statute provided that a person’s actions were a necessary, reasonable and proportionate response to the threat.

In some jurisdictions, for example New Zealand, self-defence operates to exclude criminal responsibility for use of force. It is possible in these jurisdictions a combatant could not successfully plead self-defence in relation to weapons offences which are separate and distinct to offences relating to the actual use of force. We did not come to any conclusion on this issue.

Nowhere to run

Under LOAC, not unsurprisingly there is no requirement to retreat from an attack. The position under self-defence varies from jurisdiction to jurisdiction. We found Leverick’s categorisation of the different approaches useful:

a) An absolute retreat rule. The accused must make an attempt to retreat before using force in self-defence regardless of the circumstances.

b) A strong retreat rule. The accused must make an attempt to retreat before using force in self-defence only if an opportunity to do so actually exists.

c) A weak retreat rule. Retreat is not treated as an independent variable, but rather as one factor that is taken into account in deciding whether the accused’s actions were necessary or reasonable.

d) No retreat rule. There is no duty on the accused to take an opportunity to retreat. The victim of an attack has the right to stand their ground and meet force with force.

(more…)

Meanwhile, over at ABC News…

by Kevin Jon Heller

BsJXdWkCYAEhdi_Diane Sawyer had a hard-hitting report tonight at ABC News on the recent hostilities between Israel and Palestine. The segment opens with her saying, “We take you overseas now to the rockets raining down on Israel today as Israel tried to shoot them out of the sky.” As she speaks, a video box next to her shows explosions on an urban landscape. Sawyer then shows a still photo of two haggard men carrying clothes in front of a destroyed building and says, “here is an Israeli family trying to salvage what they can.”

There’s only one problem with Sawyer’s report: the explosions are in Gaza, the result of IDF airstrikes, and the men are Palestinian, not Israeli.

Welcome to the mainstream media’s even-handed coverage of the Israeli/Palestinian conflict.

Name That Pinko!

by Kevin Jon Heller

What Israel-hating, Hamas-loving lefty said the following on Facebook?

Dear friends: Take a few moments to read the following words and share them with others. I see the severe and rapid deterioration of the security situation in the territories, Jerusalem and the Triangle and I’m not surprised. Don’t be confused for a moment. This is the result of the policy conducted by the current government, whose essence is: Let’s frighten the public over everything that’s happening around us in the Middle East, let’s prove that there’s no Palestinian partner, let’s build more and more settlements and create a reality that can’t be changed, let’s continue not dealing with the severe problems of the Arab sector in Israel, let’s continue not solving the severe social gaps in Israeli society. This illusion worked wonderfully as long as the security establishment was able to provide impressive calm on the security front over the last few years as a result of the high-quality, dedicated work of the people of the Shin Bet, the IDF and the Israel Police as well as the Palestinians whose significant contribution to the relative calm in the West Bank should not be taken lightly.

However, the rapid deterioration we’re experiencing in the security situation did not come because of the vile murder of Naftali, Eyal and Gil-Ad, may their memories be blessed. The deterioration is first and foremost a result of the illusion that the government’s inaction on every front can actually freeze the situation in place, the illusion that “price tag” is simply a few slogans on the wall and not pure racism, the illusion that everything can be solved with a little more force, the illusion that the Palestinians will accept everything that’s done in the West Bank and won’t respond despite the rage and frustration and the worsening economic situation, the illusion that the international community won’t impose sanctions on us, that the Arab citizens of Israel won’t take to the streets at the end of the day because of the lack of care for their problems, and that the Israeli public will continue submissively to accept the government’s helplessness in dealing with the social gaps that its policies have created and are worsening, while corruption continues to poison everything good, and so on and so on.

But anyone who thinks the situation can tread water over the long run is making a mistake, and a big one. What’s been happening in the last few days can get much worse — even if things calm down momentarily. Don’t be fooled for a moment, because the enormous internal pressure will still be there, the combustible fumes in the air won’t diminish and if we don’t learn to lessen them the situation will get much worse.

The pinko in question would be Yuval Diskin, the director of Israel’s Shin Bet from 2005 to 2011. Further proof that being outside of government is conducive to honesty — especially when the government in question is overseen by someone like Netanyahu.

Guest Post: Self-Defence, Collateral Damage and Precautions in Attack

by Ian Henderson and Bryan Cavanagh

[Ian Henderson is a group captain in the Royal Australian Air Force and is currently posted as the Director Military Law Centre and Deputy-Director Asia-Pacific Centre for Military Law. Bryan Cavanagh is a squadron leader in the Royal Australian Air Force and is currently posted as a legal training officer at the Military Law Centre and Asia-Pacific Centre for Military Law. This note was written in their personal capacities and does not necessarily represent the views of the Australian Government or the Australian Department of Defence. This is the second in a four-part series and the first post can be found here along with a response here.]

This is the second in a series of four posts that address the relationship between self-defence and LOAC. Yesterday we looked at when self-defence does and does not apply during a period of armed conflict. Today we discuss whether it is lawful under the criminal law concept of self-defence to cause incidental injury (aka, collateral damage) and whether self-defence imposes requirements similar to the ‘precautions in attack’ under article 57of Additional Protocol I (API).

Killing and injuring people that are not the object of the attack

Under the Law of Armed Conflict (LOAC), the rules relating to collateral damage are fairly easy to state – but difficult to apply. LOAC permits expected incidental loss of civilian life and injury to civilians (collateral damage), provided that the collateral damage is not excessive in relation to the military advantage anticipated to be gained from the attack. What then is the law relating to causing collateral damage when acting in self-defence?

A response in self-defence must be reasonable – so the question becomes – when (if ever) is it reasonable to kill or injure people who are not attacking you when responding to those who are? We had some difficulty in tracking down authority on point — in fact we could not find any reported Australian case law that addressed the issue — but domestic law of the US does. Case law in the US has held that while acting in self-defence can excuse injury or even death to a bystander in certain circumstances (eg, when not acting carelessly), self-defence does not excuse knowingly or recklessly injuring or killing a bystander (see Henwood v People, 54 Colo 188 (1913) [8]). Our conclusion is that it is highly likely that reasonableness under the law of self-defence imposes a higher standard of care on a military member than LOAC to avoid causing any injury or death to civilians. In other words, where a person acts ‘lawfully’ in self-defence, self-defence would operate as a successful defence to a charge relating to injuring or killing the attacker but not to a charge relating to injuring or killing a bystander.

To remove some confusion around this topic, we spelt out what ‘proportionality’ means under LOAC and self-defence. Proportionality under LOAC is used as a reference to the collateral damage equation mentioned above. Proportionality under self-defence is about the degree of force used in response to a threat. Proportionality under self-defence does not directly address the issue of collateral damage.

Precautions in attack

Article 57 of API sets out a number of precautions applicable to those who plan, decide and execute attacks. For example, they must do everything feasible to verify that the objectives to be attacked are military objectives; take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing collateral damage, and to cancel or suspend an attack if it becomes apparent that the objective is not a military one or that the attack may be expected to cause excessive collateral damage.

We concluded that it is unclear whether the requirement of reasonableness under the law of self-defence would extend to requiring a military member to take all of the precautions set out in article 57. Even if it could be said that these requirements are relevant to the reasonableness assessment, they are unlikely to be as effective as protecting the civilian population as the explicit requirements set out in the article. We view this as unsurprising, as the law of self-defence was not developed to specifically address these types of issues that are unique to military operations.

In tomorrow’s post, we will compare how LOAC and the law of self-defence deal with a number of discrete issues like use of prohibited weapons, obedience to lawful commands, and a ‘duty’ to retreat.

Guest Post: Henderson & Cavanagh on Self-Defense & The Privilege of Combatancy

by Jens David Ohlin

[Jens David Ohlin is Professor of Law at Cornell Law School.]

Ian Henderson and Bryan Cavanagh have hit the nail on the head in identifying a crucial and under-theorized question that goes right to the basic structure of the laws of war. I am in complete agreement that invocations of self-defense during armed conflict are both confused and confusing.

There is already the frequent problem of conflating individual self-defense (in the criminal law sense) with collective self-defense (jus ad bellum and article 51 of the UN Charter).  In addition, one often hears talk of a soldier’s right of self-defense – a claim that is mostly redundant since soldiers hold the privilege of combatancy and have no need to invoke a separate justification for their behavior. A justification like self-defense serves to negate the wrongdoing of the act, but a privileged soldier who kills a legitimate target has committed no wrongful act that requires negating.  Consequently, the justification of self-defense is only relevant during armed conflict when the defender is unprivileged, such as a civilian who has no right to participate in armed conflict.  If the civilian is challenged by an enemy combatant who refuses to obey the principle of distinction, then the civilian is entitled to kill the soldier in self-defense. If a soldier is attacked by a civilian, the soldier can legitimately kill the civilian because he is directly participating in hostilities; no claim of self-defense is required because the privilege applies.

Understanding self-defense from a civilian’s perspective is more difficult.  Consider the complicated problem of a civilian who kills an enemy soldier who is in the process of killing the civilian as collateral damage during a lawful attack against a military objective. In that scenario, does the civilian have the right of self-defense? In the criminal law we usually view the right of self-defense as only applicable against unlawful attacks, but in this case the attacking soldier’s original assault is lawful under LOAC as long as the anticipated collateral damage is not disproportionate to the value of the military objective. If the envisioned collateral damage is disproportionate, then the attack is unlawful.  So, in that case, the right of the civilian to exercise self-defense would depend entirely on the civilian making the correct assessment of not only the collateral damage, but also the anticipated collateral damage viewed — not from his perspective – but rather from the perspective of the person attacking him!  A greater conceptual riddle I cannot fathom.  This would be a nightmare for a criminal court, international or domestic, to adjudicate.

The deeper issue imbedded in Henderson and Cavanaugh’s research is the application of the privilege of combatancy to non-international armed conflicts.  The standard textbook answer is that the privilege is inapplicable to NIAC because the very concept of “combatant” is part of the legal architecture of IAC.  Under this view, a NIAC can only have government forces and rebels – never combatants per se.

To my mind, this statement is often reflexively repeated in the literature without due consideration for whether it is always and universally true.  Few individuals have challenged it, though Henderson himself is one of the few to have seriously studied the issue, writing articles suggesting that government forces in NIACs are privileged belligerents and that prosecuting them domestically would violate the laws of war.  Henderson is to be commended for tackling an understudied but vital topic.

(more…)

Guest Post: Military Members Claiming Self-Defence During Armed Conflict–Often Misguided and Unhelpful

by Ian Henderson and Bryan Cavanagh

[Ian Henderson is a group captain in the Royal Australian Air Force and is currently posted as the Director Military Law Centre and Deputy-Director Asia-Pacific Centre for Military Law. Bryan Cavanagh is a squadron leader in the Royal Australian Air Force and is currently posted as a legal training officer at the Military Law Centre and Asia-Pacific Centre for Military Law. This note was written in their personal capacities and does not necessarily represent the views of the Australian Government or the Australian Department of Defence.]

We would like to thank the editors of Opinio Juris for allowing us this opportunity to discuss our draft book chapter on the how the concept of self-defence under criminal law operates in relation to military members during an armed conflict. We would also like to thank the ASIL Lieber Society and the judges who kindly awarded our paper a Certificate of Merit (second prize) in the 2014 Richard R. Baxter Military Prize for ‘a paper that significantly enhances the understanding and implementation of the law of war’.

The Law of Armed Conflict (LOAC) reflects a balance between military necessity and humanity. Potentially upsetting this balance is an apparent trend towards relying on self-defence under criminal law as a justification for the use of force by military members during armed conflicts. We argue that this trend is based on a misunderstanding of the scope self-defence when applied in light of the combatant’s privilege.

As the relevant law that would apply to a claim of self-defence depends upon the jurisdiction, we limited our analysis to the Australian Commonwealth Criminal Code and the Rome Statute. We would be very interested to hear about how our analysis might apply in other jurisdictions.

We have split the issues up into four discrete posts. In this post, we discuss the circumstances where self-defence does and does not apply during an armed conflict. This also entails discussing the combatant’s privilege.

In our next post, we will deal with whether it is lawful under the criminal law concept of self-defence to cause incidental injury (aka, collateral damage) and whether the law relating to self-defence imposes requirements similar to the ‘precautions in attack’ under article 57 Additional Protocol I.

The third post will be a comparison of how LOAC and the law of self-defence deal with a number of discrete issues like the use of prohibited weapons, obedience to lawful commands, and ‘duty’ to retreat.

And in the final post we will briefly address the rules of engagement (ROE) concept of unit self-defence.

You say tomato, I say tomahto

Self-defence is not a unitary concept, but rather has different legal and operational meanings. It is vital to distinguish between the different meanings and ask in what context is the term ‘self-defence’ being used. Our chapter is about an individual claiming self-defence when facing potential criminal (or disciplinary) charges. It is not about a State’s right of self-defence under article 51 UN Charter (or customary international law).. Whether or not a State has a right to use force in national self-defence is a separate and distinct issue from whether an individual is not guilty of crime under the relevant self-defence provisions pertaining in a particular criminal jurisdiction. (more…)

Behind July 4 Naturalization Ceremonies, Three Distortions

by Peter Spiro

The naturalization ceremony is now a part of the July 4th ritual, right up there with picnics, parades, and fireworks. The script is faithfully recounted in newspapers across the country. Dignified surroundings (courtrooms, historic sites, ballparks) with presiding local luminaries (judges, office holders, public intellectuals), celebratory family members in tow. US flag-waving applicants from [fill-in-the-blank] number of countries. Short summaries of patriotic speeches, interviews with newly-minted citizens overjoyed by their new status. Perfect assignment for a cub reporter working the holiday weekend, a piece that practically writes itself.

This year was no exception, with the accelerant of President Obama’s presiding over a naturalization ceremony for active-duty military personnel (who, by the way, can pretty much become instant citizens — no residency requirement applies).

I don’t want to detract from the accomplishment that naturalization can represent (especially for those with less education, who are forced to pass tests on civics, history, and facility in the English language to attain full equality in their place of habitual residence, as well as for those with refugee status). The sentiments voiced are no doubt genuine, and for some naturalization remains a transformative experience.

But the picture these reports paint distorts the reality of naturalization today in at least these three ways:

1. Naturalization ceremonies are always so dignified. Hardly. More than half of all applicants are sworn in ceremonies at local Department of Homeland Security offices. These can be drab affairs, the proceedings supervised by lower-level USCIS bureaucrats following a strict operating-manual protocol. Think one-step up from the DMV. In some cities, deportation proceedings are being held across the hallway. (Not that court-presided ceremonies are always so dignified. See page 8 of this 2008 DHS ombudsman report for some less-than-inspiring examples; note also the use of “oathed” as a transitive verb.)

2. Applicants are mostly naturalizing for sentimental reasons. Naturalization is not about being proud to be an American. A Pew Research poll found that only 6 percent of naturalization applicants are motivated by “their sense of identity as an American or their love of the U.S.” Eighteen percent cite civil and legal rights as the primary reason for naturalization (that more closely aligns with a conventional trope that naturalization is about getting the vote). Sixteen percent are interested in the “benefits and opportunities” of citizenship, including the value of travelling on a US passport, being able to apply for certain public sector jobs, and acquiring eligibility for public benefits. In other words, many who naturalize are (quite rationally) doing it for instrumental reasons.

3. Naturalization applicants are transferring their allegiance to the United States. The vast majority of naturalizing citizens are also keeping their citizenship of origin. A clear majority of countries allow dual citizenship — according to one survey, 19 out of the top 20 source states for immigrants to the US allow naturalizing citizens to keep their citizenship. Others that don’t recognize the status fail to police against it (China for example). Only a few take dual citizenship bans seriously — Japan is probably the best example. When it comes to the July 4th accounts, it’s hard to know whether this is an implicit distortion or whether it’s just not reported on. My guess is that most native-born Americans would be surprised to discover that dual citizenship is the new normal among naturalized Americans.

So why the continuing convention of July 4th naturalization accounts? USCIS keeps up the pace, this year with more than 100 ceremonies across the country in the week leading up to and including the 4th. From a PR perspective, this is money well spent. From the reporters’ perspective, why rain on the parade? They probably understand this isn’t a battle to pick with their putatively patriotic readership (an assumption that may be thinning on a generational basis, according to this NYT report). For others, finally, it may be politically risky business to challenge naturalization tropes. For proponents of immigration reform, highlighting a less-than-pure path to citizenship is hardly going to help move the ball forward. Political and other elites, even on the progressive side, are still nationalists. So no one has much of an interest to leave the script, even if it no longer jives with circumstances on the ground.

Weekly News Wrap: Monday, July 7, 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

UN/Other

Weekend Roundup: June 28 – July 4, 2014

by An Hertogen

This week of Opinio Juris, Chris discussed the significance of Ukraine’s, Moldova’s, and Georgia’s signing of Association Agreements with the European Union. Peter, meanwhile, pointed out two provisions in Canada’s citizenship-stripping legislation of questionable compatibility with international and human rights law, and explained how the US Supreme Court’s Recess Appointments case speaks to foreign relations law.

Jessica wrapped up the news and I listed events and announcements. For further interesting reading over the holiday weekend, the US Department of State has just released the 2013 Digest of U.S. Practice in International Law.

And if you have enough of the FIFA World Cup, maybe Chris’s post on the ConIFA—the competition for teams from unrecognized entities and would-be states may provide an antidote.

Have a nice weekend!

 

For Unrecognized Entities and Would-Be States, the World Cup is Already Over

by Chris Borgen

While awaiting the FIFA World Cup quarterfinal matches to begin, and U.S. Secretary of Defense Tim Howard taking a well-deserved rest, I thought it might be useful to check-in on the status of the ConIFA World Cup, the tournament among teams from unrecognized entities and would-be states.  The New York Times has just published a great pictorial of that tournament, which was held in June.

ConIFA, the Confederation of Independent Football Associations, explains on its website that it:

… is a global umbrella organization for all the football teams outside FIFA. There are more than 5 500 ethnicities around the world and hundreds of sportingly isolated regions that doesn´t have an international arena to play international football.

CONIFA welcome all registered Football Associations and teams to play. We organize the official World Championship for teams outside FIFA, Continental Championships, International tournament and Cups combined with Cultural Events and Youth Exchanges. The Football World outside FIFA is fast growing and millions of dedicated fans follow the scene – this is happening now…

Why aren’t these teams in FIFA, the international federation of football associations? Membership in FIFA is not based on being a state, but rather on being a football association.  Thus, if you look at a list of FIFA member associations, England and Wales are separate associations, and thus separate World Cup teams. However, joining FIFA can be subject at times to some of the same political tensions as the recognition of a state.

According to FIFA’s statutes (.pdf), to be eligible to become a member of FIFA, an applicant must first be a member of one of the six main football confederations: the Confederación Sudamericana de Fútbol (CONMEBOL), the Asian Football Confederation (AFC), the Union des Associations Européennes de Football (UEFA), the Confédération Africaine de Football (CAF), the Confederation of North, Central American and Caribbean Association Football (CONCACAF), or the Oceania Football Confederation (OFC). Without going into all the statutes of these individual confederations, it is likely that some vote among the existing member associations in a given confederation will be a first hurdle that an aspirant FIFA-member must pass. (See, for example, UEFA’s rules (.pdf).)

Once a member of a confederation, an association may then apply for FIFA membership. Admission is based on a vote of the FIFA Congress, which is comprised of a representative of each member association. Article 10 of FIFA’s Statutes states:

Any Association which is responsible for organising and supervising football in all of its forms in its Country may become a Member of FIFA. Consequently, it is recommended that all Members of FIFA involve all relevant stakeholders in football in their own structure. Subject to par.5 and par.6 below, only one Association shall be recognised in each Country.

Paragraph 5 allows for separate membership for the British associations and paragraph 6 explains:

An Association in a region which has not yet gained independence may, with the authorisation of the Association in the Country on which it is dependent, also apply for admission to FIFA.

Thus, although membership in FIFA is technically not based on statehood, the process is based on statehood and defers to recognized national organizations. Consequently, unrecognized secessionist entities such as South Ossetia and Nagorno Karabakh have no real chance of having their football associations become part of a confederation, let alone FIFA. The New York Times further describes some of the results of FIFA’s membership process:

For many teams, membership confers legitimacy and a shot at reaching the World Cup finals, a huge stage from which to wave their nation’s flag.

Palestine — recognized as a “nonmember observer state” by the United Nations and a member of FIFA since 1998 — now has a national stadium near Ramallah and has attempted to qualify for four World Cup finals. Other teams, like Kosovo, have been unable to join European soccer’s governing body, UEFA, because of political lobbying from Serbia. When Gibraltar, a British overseas territory on the Iberian Peninsula claimed by Spain, tried to join FIFA, Spain threatened to pull all of its teams — including the powerhouses of Barcelona and Real Madrid — from the European Champions League and international football. Despite the political pressure, Gibraltar became a member of UEFA in 2013 and hopes to join FIFA next.

While not all the associations in the ConIFA World Cup are from entities that are attempting to become states, the politics of statehood nonetheless is one of the variables defining this World Cup among the unrecognized. If statehood is the gold standard of the international system, then being accepted by such a state-centric organization as FIFA is viewed by some as a mark of legitimacy. At the very least, it is a benefit that existing states may wish to deny to unrecognized separatists.

And so we get the ConIFA World Cup, which gets into the legitimacy game by calling itself the “official” tournament of associations not in FIFA.

Some results of note: South Ossetia beat Abkhazia on penalties in quarterfinals. Nice beat defending Padania (the defending champs, I believe)  in quarterfinals and then the Isle of Man in the finals. You can see the full ConIFA tournament results here. You can also read more about a previous World Cup among unrecognized entities in this post.

 

2013 U.S. Digest Now Available

by Duncan Hollis

Just a quick note for those of you who, like me, have a fondness for the Digest of U.S. Practice in International Law; the 2013 volume is now available on the State Department’s website (see here).   I find the Digest to be one of the great resources on U.S. views of international law; it regularly includes letters, reports, and other documents that are hard (if not impossible) to locate elsewhere. In doing so, it also offers a contemporary glimpse of where the Executive Branch stands on manifold questions of international law and practice. Here’s how the accompanying press release describes this year’s Digest and the series as a whole:

The Department of State is pleased to announce the release of the 2013 Digest of United States Practice in International Law, covering developments during calendar year 2013. The Digest provides the public with a record of the views and practice of the Government of the United States in public and private international law. The official edition of the 2013 Digest is available exclusively on the State Department’s website at: www.state.gov/s/l/c8183.htm. Past Digests covering 1989 through 2012 are also available on the State Department’s website. The Digest is edited by the Office of the Legal Adviser.

The Digest traces its history back to an 1877 treatise by John Cadwalader, which was followed by multi-volume encyclopedias covering selected areas of international law. The Digest later came to be known to many as “Whiteman’s” after Marjorie Whiteman, the editor from 1963-1971. Beginning in 1973, the Office of the Legal Adviser published the Digest on an annual basis, changing its focus to documentation current to the year. Although publication was temporarily suspended after 1988, the office resumed publication in 2000 and has since produced volumes covering 1989 through 2012. A cumulative index covering 1989-2006 was published in 2007, and an updated edition of that index, covering 1989-2008, was published in 2010.