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Avoiding a Rush to the Exit – Article 50 and the UK’s Withdrawal from the EU

by Larry Helfer

[Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University and a permanent visiting professor at iCourts: Center of Excellence for International Courts at the University of Copenhagen.]

As the world reacts to the shock of the Brexit referendum, international lawyers are turning their attention to the mechanics of Britain’s departure from the EU.  Article 50 of the Lisbon Treaty – the clause governing withdrawal – is now front page news.  A state’s decision to leave any international organization raises thorny questions of law and politics.  As I explain below, Article 50 answers some of these questions for withdrawals from the EU, but leaves many others unresolved.

The basics of Article 50

EU law was originally silent as to whether a state could leave the Union, generating debate over whether there was an implied right to exit.  Article 50(1) settles this issue, providing that “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”

Under Article 50, the decision to quit the EU is not self-executing, nor does it have immediate effect.  Rather, the exiting country must first “notify the European Council of its intention” to leave, which triggers a process for negotiations over withdrawal.  The hope, set out in Article 50(2), is that the remaining EU members and the departing nation will “conclude an agreement … setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.”  That agreement must be approved by a “qualified majority” of the Council (20 of the 27 remaining EU members), by the European Parliament, and by the UK itself.

Article 50’s third paragraph specifies that the Lisbon Treaty (and, by implication, all other EU laws) “shall cease to apply” to the exiting state on the date the withdrawal agreement enters into force.  If no agreement is reached, EU membership ends “two years after the notification” of withdrawal – unless the Council and the UK unanimously agree to an extension.  Once the UK has officially departed, it can rejoin only by following the Lisbon Treaty procedures applicable to states seeking admission to the EU for the first time.

The least worst outcome – bargaining for an orderly withdrawal

By setting the ground rules for Britain’s withdrawal, Article 50 is already shaping talks between London and Brussels over the terms of the UK’s exit.  The effects can be roughly divided into three time periods:  the pre-notification period, the negotiations phase (what one reporter waggishly calls the UK’s departure lounge), and the post-exit relationship between the Britain and the EU.

Brexit supporters did not wake up to an EU-free Britain on the morning after the referendum.  The UK is still a fully-fledged member of the Union – and it will remain so if the British government does not formally notify the European Council of its intent to withdraw.  Article 50 says nothing about how, when or by whom such notification is to be made.  Presumably, notice would be given by the Prime Minster.  Before the vote, David Cameron stated that he would inform the European Council “straight away” after a “leave” vote.  But on Thursday he announced that notification would be given by his successor, who will take office by October 2016.

Why the change?  Having campaigned against Brexit and lost, it is not surprising that Cameron wants someone else to pull the trigger on the UK’s withdrawal and squelch any campaign to block withdrawal – a possibility raised by Scotland’s First Minister Nicola Sturgeon.  But even fervent British sovereigntists would be advised to support some delay in notifying the Council.  So long as the UK has not fired the starting gun on the two-year exit clock, it has the upper hand in negotiations with the other 27 EU nations.  Britain keeps both the benefits and the burdens of EU membership while the terms of its departure are hammered out.  It can’t be forced to leave the Union (or can it? – see below) unless those terms are to its liking.

Once notice is given, however, the advantage shifts to the continent.  If Britain and its former EU partners do not reach a deal within 24 months – or unanimously agree to extend negotiations – the UK is out.  A divorce that is finalized while the spouses are still squabbling over custody of the children and the division of marital property is messy and painful.  The equivalent for a non-negotiated Brexit – the sudden re-imposition of barriers to free movement of capital, goods and labor – is an outcome that even diehard British nationalists should want to avoid.

How long can the UK defer notification?  Article 50 doesn’t say, but politics rather than law will almost certainly provide the answer.  Both pro-Brexit voters and EU leaders are unlikely to oppose a modest delay.  But the uncertain economic and political fallout of a protracted British withdrawal will push both sides to the bargaining table regardless of when the UK gives notice – unless the British public catches a bad case of “Regrexit.”

Contrary to what some have claimed, however, the exit negotiations need not conclusively resolve London’s status vis-à-vis Brussels.  Article 50(2) requires a withdrawal agreement that “tak[es] account of the framework for [the UK’s] future relationship with the Union.”  An deal that takes plausible steps toward defining that relationship should suffice, even if it is a modus vivendi whose principal aim is an orderly disengagement.  The details of the Britain’s post-withdrawal status can be finalized at a later date – although in the interim EU law will cease to apply to the UK.

Avoiding a rush to the Brexit

As described above, Article 50’s withdrawal rules, although incomplete, do a reasonably good job of channeling the parties toward a political settlement of the UK’s departure over the next several years.  But some in the pro-Brexit camp are calling for more precipitous action, including introducing an EU Law (Emergency Provisions) Bill in the current session of the British Parliament to revise the European Communities Act 1972.  The Bill aims to “immediately end the rogue European Court of Justice’s control over national security, allow the Government to remove EU citizens whose presence is not conducive to the public good (including terrorists and serious criminals), [and] end the growing use of the EU’s Charter of Fundamental Rights to overrule UK law ….”

There is no doubt that Parliament has the power to adopt such a Bill.  But from an international perspective, the enactment would rightly be seen as a grave violation of EU law, which continues to bind the UK until an exit deal is finalized or, failing that, two years after a notification of withdrawal.  The Bill would surely trigger a raft of lawsuits, by the EU Commission and by private litigants, challenging its legality and seeking fines and damages.  How would British judges respond to such suits?  The Bill would force UK courts to choose between their duty to apply EU law over conflicting national law and their obligation to defer to Parliament.  The result, as Cambridge professor Kenneth Armstrong has warned, would be a constitutional conflict of the first order.

The Bill might also provoke the remaining EU members to try to force Britain out.  The EU has no expulsion clause; one was considered but ultimately left out of the Lisbon Treaty.  But as my coauthors and I explain in a recent working paper, it is unsettled whether international law recognizes an implied right to expel.  And European leaders could attempt to achieve the same result indirectly, treating the Bill as a material breach that authorizes a suspension or termination of the Lisbon Treaty vis-à-vis the UK.  In either case, the legality of any expulsion effort would almost certainly be challenged in court.

In all events, the far better course for all concerned is to avoid a precipitous unilateral break and instead to negotiate Britain’s orderly departure from the EU.

Symposium: The Rule of Law: Thick, But Not Too Thick?

by John Tasioulas

[John Tasioulas is Yeoh Professor of Politics, Philosophy and Law at the Dickson Poon School of Law, King’s College London and Visiting Professor of Law, University of Chicago Law School. This is the third post in the Defining the Rule of Law Symposium, based on this article (free access for six months). The first is here and the second, here.]

One can, without linguistic impropriety, use the phrase “the rule of law” to denote a number of significant though distinct ideas. Most expansively of all, it can be used to refer to the rule of good law: to all of the values, running the gamut from justice through charity to efficiency, that law should embody or promote. This value catalogue, although probably very long and diverse, would not lack utility, since not everything we value need fall within the legitimate ambit of legal concern.

Still, those who have seriously meditated on the rule of law usually had something more specific in mind than the rule of good law. They have typically sought to articulate the ideal of the rule of law in a way that satisfies two constraints. First, a constraint of pluralism: the rule of law is only one evaluative standard, among various others, for assessing laws and legal institutions. Second, a constraint of unity or coherence: the various demands of the rule of law must be the expression of a coherent underlying ethical concern. Given the pluralism constraint, that underlying concern cannot merely consist in the ultra-minimal one of relevance to the ethical assessment of law.

Notoriously, there are ‘thicker’ and ‘thinner’ articulations of the rule of law, the former often called ‘substantive’, the latter ‘formal/procedural’, but they all typically seek to satisfy the desiderata of pluralism and coherence.

Ronald Dworkin, a leading proponent of the thick view, characterizes the rule of law as ‘rule by an accurate public conception of individual [moral] rights’ (R Dworkin, A Matter of Principle (Harvard University Press, 1985), 11-12). Since not all of the values relevant to the assessment of law are rights-based considerations, the pluralist constraint is satisfied. Meanwhile, coherence is secured through the organizing idea of moral rights that are appropriately reflected in law. Yet Dworkin’s view seems too expansive insofar as it equates the rule of law with justice generally, at least to the extent that the latter bears on law. This is because a venerable tradition of thought – one that includes Grotius, Hume, Kant and Mill – construes the concept of justice as picking out just those moral duties that have associated rights.

Hence, the motivation to adopt a ‘thin’ account of the rule of law, one centring on a series of formal and procedural requirements, e.g. that laws be prospective, framed in general and accessible terms, not constantly changing, and applied consistently by officials (see the classic recent formulation in J. Raz, ‘The Rule of Law and its Virtue’, Law Quarterly Review 93 (1977): 195-211). The limited scope of the rule of law, thinly understood, means that a legal system can in principle satisfy it in spite of being deficient with respect to values such as human rights or democracy. But the up-side is that the desideratum of pluralism is secured. On the other hand, the coherence of the thin view consists in the fact that its formal and procedural requirements pay proper tribute to the autonomy and dignity of those subject to the law, enabling them to make important choices against the background of being able reliably to predict how the law is liable to impinge on their lives in various scenarios. Like many with ‘thick’ sympathies, McCorquodale finds the thin view all-too minimalist, dismissing it as giving an account not of ‘the rule of law’, but of ‘rule by law’.

McCorquodale’s article offers a rival conception of the rule of law, which he then proceeds to show is applicable to international law. I focus here only on the first stage of his argument. For McCorquodale, the rule of law incorporates four elements conceived as objectives: “to uphold legal order and stability, to provide equality of application of the law, to enable access to justice for human rights, and to settle disputes before an independent legal body” (p.8) We may interpret this account as seeking to fuse the merits of the thick and thin accounts, while jettisoning the limitations of each, by plotting an intermediate position between them. For, arguably, three of its elements would be endorsed by most adherents of the thin view, so that it is the addition of access to justice for human rights that constitutes the distinctive ‘value added’ of his account relative to the former view. Since, presumably, not all moral rights are also human rights, this distinguishes his position from the even thicker Dworkinian version, thus avoiding the objection that he equates the rule of law with justice insofar as it bears on law.

The first question about McCorquodale’s account centres on what he means by human rights. A close reading of his article suggests he has in mind those rights laid down in international human rights law. But how can the content of an ethical value or norm, such as the rule of law, be dependent on a contingent and fallible human creation, such as international human rights law? Isn’t human rights law properly seen as responsible to a background morality of human rights to which it gives inevitably imperfect expression? This is why Dworkin speaks of an ‘accurate public conception’ of moral rights. Moreover, even if we were persuaded by McCorquodale’s assurances that the relevant human rights legally bind all states, and even non-state actors such as corporations, the fact remains that they might not have been binding or could cease to be so in the future. Would the demands of the rule of law fluctuate in line with these changes?

Let’s assume that McCorquodale either revises his view so as to appeal to human rights of morality, rather than law, or else has that he has some compelling defence of his reliance on legal norms. The question then arises: why add human rights, in particular, to the familiar formalist constraints? After all, there are many values that the law should advance, other than human rights, such as peace, the preservation of nature, humanitarian concern, economic efficiency, and so on. Is it not simply arbitrary to conjoin human rights, from all these other legally-relevant values, to the formalist requirements? In other words, in trying to take a stand between thick and the thin, McCorquodale appears to fall foul of the desideratum of unity or coherence.

The likely response is that he is not incorporating all human rights into the rule of law, but only some of them. On the one hand, he claims that the rule of law requires access to justice for all human rights (p.18). On the other hand, he asserts that not all human rights are therefore part of the rule of law, instead only some are (p.7). Presumably, the included human rights will be that sub-set that suitably coheres with the three formalist requirements. The human rights that are ‘within the rule of law’, McCorquodale says, include ‘the right to a fair trial, the right to liberty, the right to equality and the right not to be discriminated against’. Their inclusion is on the basis that they are ‘procedural rights directly relevant to the rule of law’. (p.17).

But this move confronts two hefty challenges. The first is that it remains unclear what the principle of selection is for determining which human rights form part of the rule of law. McCorquodale’s answer seems to be that these are procedural rights, but the sense given to ‘procedural’ is fuzzy and overly expansive. It is not at all obvious in what sense the rights to liberty and non-discrimination, which figure in his list of incorporated rights, are procedural rights in a way that, for example, the rights to life or to political participation are not. Absent an adequate explanation, his account of the rule of law lacks coherence, even if we grant the somewhat nebulous thesis that while the rule of law enjoins the protection of all human rights not all such rights are part of the rule of law.

The second challenge is that, even with a convincing principle of selection, we might discover that his view ultimately collapses into a version of the thin view. This is because the latter view can be made to encompass some human rights, i.e. those that integrate with its concern to safeguard human autonomy and dignity by means of the predictability achieved through compliance with the familiar set of formal and procedural demands. The thin view of the rule of law, for example, incorporates a strong prohibition on retrospective criminal punishment, which itself reflects a corresponding human right. It also incorporates a demand of formal equality in the application of law – treating like cases alike – that also plausibly implicates a human right. So, the thin view seems compatible with a more limited, yet also more coherent, embrace of human rights within the rule of law ideal. If McCorquodale seeks a more generous embrace of human rights within the rule of law ideal, without going to the extreme of incorporating all of them, he needs to be explain how this can be achieved without sacrificing the overall coherence of the ideal, turning it into an ad hoc, but incomplete, list of legally-relevant values.

Symposium: Lies, Damned Lies, and the International Rule of Law

by Simon Chesterman

[Simon Chesterman is Dean and Professor at the National University of Singapore Faculty of Law. This is the second post in the Defining the Rule of Law Symposium, based on this article (free access for six months). You can find the first post here.]

Imprecision of meaning in international law is rarely accidental. Diplomacy is an architecture of compromise, with states routinely adopting malleable or self-serving definitions depending on their interests or aspirations.

So it is with the international rule of law. A decade ago, every member state of the United Nations recognized the need for “universal adherence to and implementation of the rule of law at both the national and international levels” and reaffirmed their commitment to “an international order based on the rule of law and international law.” Any term that can garner such universal support, from Norway to North Korea, is either so vague as to incorporate radically different interpretations of its content or so vacuous that there is no content to speak of.

Academics, generally, prefer precision. Robert McCorquodale is to be commended for his thoughtful and thought-provoking effort to pin down what the “international rule of law” can and should mean. In particular, he is right to push back against simplistic analogies between the concept of the rule of law at the domestic and international level. The function that law plays in a notional horizontal society of equals — the sovereign equality that is the founding myth of international law — is radically different from the role it plays in a vertically ordered state in which power is distributed by reference to a sovereign or in accordance with some form of constitution.

But this structural difference also points to the problem with McCorquodale’s approach to defining the international rule of law. He generously cites my own work in this area, which he correctly identifies as seeking to offer a functionalist approach to what the rule of law might do at the international level — viz. “the application of rule of law principles to relations between states and other subjects of international law”. Such a minimalist definition of the rule of law, he notes in passing, “will suit those states which are resistant to a broader understanding of international legal obligations” (p.289). This is a curious challenge, but points to the larger concern that I have with his own maximalist (thick, substantive) conception of the rule of law as necessarily encompassing the objectives of “legal order and stability; equality of application of the law; protection of human rights; and the settlement of disputes before an independent legal body” (p.292).

The inclusion of human rights in particular begs the question of whether a “thick” conception of rule of law is required in the first place. I will not revisit the thin/thick (or formal/substantive) debates here, but would align myself with Raz’s argument that a “thin” conception does not relegate one to the arbitrary exercise of power in a rule by law state. At the domestic level, this battle is played out when McCorquodale deploys Tom Bingham’s stirring response to Raz — though it is a response essentially based on a definitional shift that the rule of law means the rule of good law (pp.283-284).

At the international level, such a move is even more problematic. Indeed, warnings against a priori jumps to incorporate human rights can be found in the foundational human rights texts themselves. The Universal Declaration of Human Rights, which McCorquodale cites, provides in its preamble that “human rights should be protected by the rule of law”. Simply as a matter of construction it is tautological to define the rule of law as including the thing it is intended to protect. Similarly, McCorquodale cites (p.283) the Declaration on the Rule of Law, italicizing for emphasis the relevant phrases: “[We] reaffirm our commitment to the rule of law and its fundamental importance for … the further development of the three main pillars upon which the United Nations is built: international peace and security, human rights and development.” (The ellipsis, it should be noted, skips over the statement that the rule of law is also fundamentally important for “political dialogue and cooperation among all States”.)

McCorquodale sensibly does not seek to incorporate all human rights, but when he attempts to specify which to include, he falls back on the domestic law analogy that he has earlier so rightly spurned. Hence his list includes “the right to a fair trial, the right to liberty, the right to equality and the right not to be discriminated against” (p.293). All very important, but clearly linked to domestic law traditions and problems.

The justification for the inclusion of these specific human rights is linked to their presence in the “main global human rights treaties” and status as customary international law (p.293). The fact that these are obligations on states is not controversial, but folding them into a definition of the international rule of law raises additional problems when considering McCorquodale’s other contribution in his article: the attempt to find a definition of the rule of law that applies not only to states but also to international organizations and other subjects of international law.

It is arguable, for example, that the United Nations is subject to human rights obligations despite not being a party to any of the “main global human rights treaties”. Nevertheless, to assert that rule of law principles that apply to the UN and other international organizations incorporate such obligations must be based on more than a claim that such an assertion is “appropriate” (p.300). This is borne out in the Kadi cases and the UN’s Guiding Principles on Business and Human Rights, on which McCorquodale seeks to rely. In the former, the European Court of Justice applied rule of law principles in interpreting human rights obligations that are explicitly provided for within the EU legal system. In the latter, John Ruggie has been criticized by NGOs and activists precisely for his unwillingness to assert without foundation that corporations are bound by human rights obligations. (For more on this, see my “Lawyers, Guns, and Money”.)

McCorquodale does not go so far, but he concludes that section of his piece with a telling coda: “the application of human rights to the operations of the UN and other international organizations, as well as their applicability to non-state actors, are consistent with the human rights objective of the international rule of law” (p.303).

Does the rule of law really have a “human rights objective”? One can make a strong case that the rule of law makes human rights possible — that a world ordered by law is more predictable and stable, more prosperous and more harmonious, than one ordered solely by power. This is the transition that, over centuries, was made in states that went from “rule by man” to “rule by law” and now “rule of law”. But the content of that law at the international level is distinct from the ordering principle that establishes the conditions for law in the first place.

Diplomacy, once again, is an architecture of compromise. McCorquodale has made a significant contribution to debates over what the international rule of law can and should mean, though his conclusions are more normative than descriptive. My concern is that by seeking to blend form as well as substance, and to attribute to the rule of law an agenda that many states would equate with a Western liberal political bias, the structure’s foundations will be unable to bear the burden placed upon it.

This is not to suggest that human rights are unimportant. It is a signal achievement that human rights have moved from aspiration to norm in a mere seven decades, with all countries now submitting themselves to the Universal Periodic Review, for example. Such an achievement is clearly attributable in part to widespread acceptance of the rule of law at the national and international level. And, as member states agreed in the Declaration on the Rule of Law, human rights and the rule of law (and democracy) are “interlinked and mutually reinforcing” — but they are not the same thing.

The U.S.-Taiwan-China Relationship and the Evolution of Taiwan Statehood

by Lung-chu Chen

[Lung-chu Chen is an internationally recognized scholar and Professor of Law at New York Law School, specializing in international law, human rights, and the United Nations. He is the author of The U.S.-Taiwan-China Relationship in International Law and Policy (Oxford University Press, 2016), and An Introduction to Contemporary International Law: A Policy-Oriented Perspective, Third Edition (Oxford University Press, 2015).]

On May 20, 2016, Tsai Ing-wen will be inaugurated as the first female president of Taiwan. Tsai is the first member of the Democratic Progressive Party (DPP) to hold the presidency since the administration of Chen Shui-bian from 2000 to 2008. She will be the first DPP president to enter office with a DPP majority in the Legislative Yuan—a crucial condition for effective governance never afforded to Chen. The DPP has historically been associated with the movement for greater national independence for Taiwan, and, as many commentators have observed, the shift in power will reinvigorate the debate over Taiwan’s status under international law.

As I write in chapter two of my book An Introduction to Contemporary International Law: A Policy-Oriented Perspective, Third Edition (Oxford University Press, 2015) and in my new book The U.S.-Taiwan-China Relationship in International Law and Policy (Oxford University Press, 2016), the past thirty years have witnessed a profound and persistent movement of democratization—and Taiwanization—that runs counter to the People Republic of China’s (PRC) unrelenting claims of ownership over Taiwan. After decades of de facto independence and the emergence of a vibrant democratic society and national culture, the Taiwanese people will never be content to see their country become the next Hong Kong under a flawed “one country, two systems” formula. In my view, the time has come for the world community to support the Taiwanese people in achieving recognition of an evident fact: Taiwan is a state under international law, not a part of China.

Taiwan easily satisfies the traditional requirements for statehood as embodied in the 1933 Montevideo Convention: a permanent population, effective control over a territory, a government, and the capacity to interact with other states. Yet the realities of global power politics have kept Taiwan from being recognized as such. The PRC advances the fictitious claim that Taiwan is an integral part of China from time immemorial, but has never exercised control over Taiwan for a single day in its 67 years of existence since its founding in 1949. The situation is exacerbated by China’s campaign to strong-arm, coerce, and bribe states and international organizations to further isolate Taiwan. (The PRC’s insistence that Taiwan identify as a part of China as a condition to participating as an observer at the World Health Assembly provides a recent example.) Under the 2005 Anti-Secession Law, Chinese leaders arbitrarily empowered themselves to respond with force if Taiwan declared the obvious fact of its independence. The PRC’s unceasing threats of the use of force against Taiwan encroach upon the right of the Taiwanese people to self-determination and endanger the peace and security of the Asia Pacific and even the world community.

Some scholars, such as James Crawford in his The Creation of States in International Law (Oxford University Press, 2006), have written that Taiwan cannot be a state because it has not issued a declaration of independence from China. There is no precedent in international law for such a requirement. Even if there were one, President Chen’s 2007 application for UN membership in the name of Taiwan implicitly declared that Taiwan was an independent, sovereign, and peace-loving state that possessed the ability and willingness to carry out the purposes, principles, and obligations of the UN Charter. The move was tantamount to a “declaration of independence” addressed to all humankind.

I have advanced a solution to this stalemate based on a theory of the evolution of Taiwan statehood. I submit that Taiwan’s statehood is best understood in the context of an ongoing process of evolution propelled by the will of the Taiwanese people for self-determination and democracy. In chapter 12 of my new book, I stress that the time has come for an internationally supervised plebiscite on Taiwan’s future to be held in full view of the world community. This is not a new concept. It is a straight-forward application of existing international law.

It was not until 1887 that the Qing dynasty formally made Taiwan a province of China. Eight years later, following the Chinese defeat in the Sino-Japanese War of 1894-95, China ceded Formosa (Taiwan) and the Pescadores (Penghu) to Japan in perpetuity under the Treaty of Shimonoseki. In 1945, Japan surrendered control of Taiwan to the Allied forces, who delegated responsibility for military occupation of the island to the ROC army led by Chiang Kai-shek. In 1949, after the ROC’s defeat in the Chinese civil war, Chiang and his Kuomintang (KMT) supporters fled to Taiwan and established a regime in exile, imposing martial law, which lasted for 38 years until 1987. Taiwan remained a Japanese territory until the San Francisco Peace Treaty took effect in 1952. Under Article 2(b), Japan renounced all right, title, and claim to Taiwan. However, the Treaty’s framers were deliberately silent as to whom Japan was ceding the territory. It is important to note the San Francisco Peace Treaty—signed by 48 nations—superseded wartime declarations such as the Cairo Declaration and the Potsdam Proclamation.

In 1971, the United Nations General Assembly adopted Resolution 2758, expelling Chiang Kai-shek’s representatives and making the PRC the only lawful representative of China in the UN. In 1978, President Carter announced the United States would switch diplomatic recognition to the PRC while maintaining unofficial relations with the people of Taiwan. Following Carter’s announcement, (more…)

Symposium: Defining the Rule of Law

by Robert McCorquodale

[Robert McCorquodale is the Director of the British Institute of International and Comparative Law, Professor of International Law and Human Rights, University of Nottingham, and Barrister, Brick Court Chambers, London. This is the introductory post in the Defining the Rule of Law Symposium, based on this article (free access for six months).]

References to the ‘rule of law’ in international law books, articles and blogs are everywhere. Yet very few of these authors set out what they mean by an international rule of law. Most of those who engage with the idea of an international rule of law dismiss it – almost with a shrug – as being impossible in a system without a clear binding governance process and without a court with uniform jurisdiction over all matters.

In my article – Defining the International Rule of Law: Defying Gravity? – which is published in the International and Comparative Law Quarterly, I offer a definition of the international rule of law. I also seek to show that an international rule of law can exist in the international system. My starting point is that, in order to understand the rule of law, and whether it can apply to the international system, it is necessary to clarify what are its key objectives. In my view, based on the writing of jurists such as Tom Bingham and by the Venice Commission, it is evident that the rule of law has four key objectives: to uphold legal order and stability; to provide equality of application of law; to enable access to justice for human rights; and to settle disputes before an independent legal body.

International organisations have taken up the idea of the importance of the rule of law with considerable alacrity. For example, the Declaration on Principles of International Law refers to the ‘paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations’. Reference to the rule of law is found in Security Council resolutions on peacekeeping, good governance and post-conflict, as well as in statements by the World Bank and as a target in the Sustainable Development Goals. The Declaration on the Rule of Law was made in 2012 by a UN High-Level Meeting on the Rule of Law at the National and International Levels. The UN has provided a definition of the term, which it sets out on its rule of law website:

“The Secretary-General has described the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency”.

My difficulty is that almost all these statements and other attempts to consider the rule of law at the international level are really transpositions of the rule of law from national systems and national institutions to the international system. Given the considerable structural and institutional differences between national legal systems and the international legal system, this transposition is misconceived. Indeed, many of those who reject the possibility of an international rule of law also tend to confuse the compliance with international law with having a rule of law, or they expect that the rule of law is absolute: it exists or it does not exist in a legal system. This fails to understand the there are varying degrees of adherence to the rule of law. The Rule of Law Index shows this through its indexing of the relative compliance of states with the rule of law, where some states comply with most elements, some comply with very few and there are many in the middle. This must be equally applicable at the international level, where complete actualization of all the elements of the rule of law is unlikely and failure to attain them all does not mean there is no international rule of law at all.

So a definition of an international rule of law is possible if it is examined in terms of the four objectives of a rule of law: to uphold legal order and stability; to provide equality of application of law; to enable access to justice for human rights; and to settle disputes before an independent legal body. I explain in the article that these objectives can be found in the international system. I include access to justice for human rights deliberately, because a rule of law without this justice element is a rule by laws and not a rule of law. The protection of human rights should also not be confused with the rule of law as, while the latter includes access to justice (such by a fair trial) within it, the rule of law does not include all human rights.

I explore some ways in which this definition of the international rule of law can be applied in the current international legal system. This includes the importance of pacta sunt servanda, which is part of customary international law (and probably part of jus cogens), as applying to all states (and non-state actors) and as part of the international legal order. It also includes the amazing array of international dispute settlement procedures. While there is no compulsory procedure before one court, there are certainly many areas of international law for which there is a means to settle disputes before an independent legal body. Of course, it remains difficult to ensure compliance by the UN and other international bodies with their human rights obligations, yet the notion of access to justice is present, especially in UN administered territories and has been applied to corporations, so there is a lack of adherence to the international rule of law and not the lack of its existence.

A new approach to defining the international rule of law will, hopefully, make it easier to see how it is applied internationally to international organisations, to states and to non-state actors acting transnationally. This could lead to increasing adherence to the international rule of law.

Symposium: Defining the International Rule of Law–Defying Gravity?

by Jessica Dorsey

This week, we are hosting a symposium on Defining the International Rule of Law: Defying Gravity?, (free access for six months) the latest article from Robert McCorquodale, the Director of the British Institute of International and Comparative Law, Professor of International Law and Human Rights, University of Nottingham, and Barrister, Brick Court Chambers, London. The article was recently published in the International and Comparative Law Quarterly.

The article’s abstract:

This article aims to offer a definition of the international rule of law. It does this through clarifying the core objectives of a rule of law and examining whether the international system could include them. It demonstrates that there can be a definition of the international rule of law that can be applied to the international system. This definition of the international rule of law is not dependent on a simplistic application of a national rule of law, as it takes into account the significant differences between national and international legal systems. It seeks to show that the international rule of law is relative, rather than absolute, in its application, is not tied to the operation of the substance of international law itself, and it can apply to states, international organizations and non-state actors. It goes further to show that the international rule of law does exist and can be applied internationally, even if it is not yet fully actualized.

In addition to Professor McCorquodale’s introductory and concluding remarks, there will be posts from Heike Kreiger, Janelle Diller, John Tasioulas, Joost Pauwelyn and Simon Chesterman. We look forward to the discussion from our contributors and the ensuing commentary from our readers.

Planning for Detention

by Deborah Pearlstein

Picking up on Jens’ post about the Administration’s apparent lack of plans for holding detainees picked up in Iraq/Syria, I too found the Times report troubling. In part I suspect it was because I was immediately reminded of one of the findings of the many Pentagon investigative reports issued after the revelations of torture at Abu Ghraib and other U.S. detention facilities in Iraq. All apart from criticisms of changes in policy and legal interpretation, some of the harshest blame for the widespread nature of the abuse was the total failure of preparation. In particular, according to the report prepared by Lt. Gen. Anthony R. Jones, tasked with investigating the Abu Ghraib Prison and the 205th Military Intelligence Brigade in Iraq: “[P]re-war planning [did] not include[] planning for detainee operations.” The finding always seemed stunning to me, given the months long (or longer) lead up to the 2003 invasion, and the certainty from the beginning that the war was going to involve a significant U.S. commitment of resources, including ground troops. But the Pentagon was of course then laboring under Defense Secretary Rumsfeld’s preference for keeping forces light, insisting that it was possible to minimize the amount of supplies and surrounding support required to overthrow the regime. Of all the lessons out of the 2003 invasion and the years that followed, it seemed to me the failure of that attack-now-plan-later approach was among the clearest.

The latest U.S. engagement in Iraq and Syria is of course in key respects different. U.S. troops are there, we have maintained, to support the Iraqis in their efforts against ISIL. Our commitment of ground “personnel” has been steadily growing (making Congress’ failure to authorize the use of force in this new conflict even more problematic than it already was), but it is far, far from anything like the 2003 invasion and prolonged occupation. All the same, it is not as though we don’t have a series of models from past conflicts for how to handle the inevitable detention problem – models ranging from our own establishment of vast detention operations (in, e.g. World War II and after 9/11) to shared arrangements with allies (in, e.g. Vietnam and the 1991 Gulf War). All of these models have had issues, but some far far fewer than others. I got curious a few years back so finally did some digging and wrote up this little survey. Here, for example, is 1991 in sum.

Between January 22, 1991, when the first prisoner was captured, and May 2, 1991, when the United States transferred the final prisoner from its custody, U.S. detention facilities processed nearly 70,000 detainees, including through the use of battlefield hearings on prisoner status pursuant to Article 5 of the Geneva Convention (III)…. At the outset of hostilities, the United States quickly secured military-to-military agreements with allies France and the United Kingdom, setting forth the process to be followed by any capturing forces in processing prisoners of war or other detainees, initially through U.S. detention or medical facilities in theater. Although American military police and combat engineers raced to build prison facilities in theater from scratch, the United States also undertook a separate agreement with Saudi Arabia that authorized the subsequent transfer of many of these prisoners to existing Saudi facilities. By the end of the conflict, more than 35,000 prisoners were held in U.S. facilities, with 63,000 more held in Saudi Arabia…. Ultimately, the vast majority of prisoners in Saudi Arabia were repatriated to Iraq under ICRC auspices after Saddam Hussein issued a general amnesty. In all events, all prisoners had been transferred from U.S. custody by May 2, 1991. On August 23, the ICRC announced that the repatriation of Iraqi prisoners was complete. And the ICRC concluded that the “treatment of Iraqi prisoners of war by U.S. forces was the best compliance with the Geneva Conventions by any nation in any conflict in history.”

Don’t be misled, there were plenty of issues post-1991 (including controversy surrounding the resettlement of some Iraqi prisoners/refugees in the United States, described elsewhere in the piece), and plenty more differences between that conflict and this. But particularly as this Administration barrels toward transition, with no chance U.S. involvement in the region will have come to an end by January, now’s the time to put pen to paper with the allies, in the region and beyond, who share the anti-ISIL goal. Securing commitments, to resources and to upholding the detainee protections required by law, is tough. But not nearly as tough as paying the human rights and strategic costs of detention without a plan.

No Detention Plan for ISIS

by Jens David Ohlin

Today’s New York Times tells us that the Obama Administration currently has no active plan for holding Islamic State (ISIS) detainees captured on the battlefields of Iraq or Syria. The article makes clear that the lack of a plan isn’t because the Obama Administration hasn’t been thinking about the issue. In reality, the lack of a plan stems from the fact that the Obama Administration refuses to develop one.

Why not? After the fiasco known as Guantanamo Bay, the administration apparently has no interest in getting into the detention business. As in, not just the CIA not getting into the detention business — but the whole government not running a detention facility.

So this triggers an obvious question: Where will the detainees go?

One worry expressed in the article, echoed by former administration lawyer William Lietzau, is that the lack of a detention program might have perverse incentives. Some non-U.S. forces fighting against ISIS might decide that it is better to execute detainees rather than capture them, given the lack of a viable detention plan or facility run by the United States. It doesn’t take an international lawyer to know that executing prisoners, or soldiers otherwise hors de combat, is a war crime (and a particularly egregious one).

So far, the assumption has been that the Iraqi government will run a detention program itself (at least for detainees captured on Iraqi territory). According to the Times:

The potential for a large number of prisoners presenting these kinds of challenges — for somebody — has been raised at planning meetings for months both inside the Obama administration and with coalition partners, according to officials familiar with internal deliberations.

But with no good options, the Obama administration’s default policy is to take custody of the highest-value detainees for interrogation, something the United States has done only twice with Islamic State prisoners. Both were later moved to Kurdish prisons.

The assumption is that the Shiite-dominated Iraqi government or the Iraqi Kurdish forces will hold and, if appropriate, prosecute any suspected foot soldiers and sympathizers they capture.

“We’re not equipped for long-term detention,” said Col. Steve Warren, the spokesman for the American military forces in Baghdad. “We’re not set up here for that, so we’re not in that business.”

It is not clear to me what would happen to ISIS forces captured on Syrian territory by moderate rebels who are also fighting the Syrian government.  It doesn’t seem likely to me that they would transfer the detainees to the Iraqi government (but I don’t know), and they surely won’t transfer the detainees to the Syrian government.  And it is unclear to me whether these rebels will have the infrastructure necessary to run their own detention program.

Everybody Has Friends, Why Not the ICC: On the Court’s Power to Appoint Amicus Curiae Prosecutors

by Ekaterina Kopylova

[Ekaterina Kopylova is a PhD candidate at MGIMO-University, Moscow, and a former Legal Assistant with the ICC Office of the Prosecutor on the Bemba, et. al case]

A month ago the ICC Trial Chamber V(A) vacated without prejudice the charges of crimes against humanity against the sitting Kenyan Vice-President William Ruto. This case involved intense cross-parties allegations of witness tampering. Some of these allegations have been found serious enough to substantiate a warrant of arrest against a former journalist Walter Barasa, who is suspected of having influenced or sought to influence several persons to withdraw as Prosecution witnesses.

At trial, the Ruto Defense alerted the Prosecution and the Chamber to the conduct of certain Prosecution witnesses that, in its view, might be constitutive of offences against the administration of justice, to no avail. On May 2, 2016, it decided to take these allegations to the next level. It requested in essence that the Trial Chamber directs the Prosecutor to appoint an amicus to investigate several Prosecution witnesses, intermediaries and officials for the possible violations of article 70 of the Rome Statute.

The Office of the Prosecutor should not have to go to great pains to convince the Chamber to reject the Defense request. Although a Chamber may refer facts to the Prosecutor, the choice of whether and how to proceed, including what safeguards against possible conflicts of interests to put in place, is clearly hers. Specifically, pursuant to article 41(2) of the Statute, the Office shall act independently, and neither solicit, nor accept instructions from any external source.

However, the Ruto Defense may reconsider the relief sought and ask the Court to appoint an amicus curiae prosecutor directly.

Article 70 stipulates that “the Court has jurisdiction over […] offences against its administration of justice.” The Court determines on a case-by-case basis the best way to exercise this jurisdiction. Like any international organisation, the Court is free to act in any manner consistent with its founding treaty to achieve the goals of that treaty. For example, the Pre-Trial Chamber in the Bemba, et al. case appointed an independent counsel answerable directly to it to vet the evidence received from the domestic authorities for any privileged material.

Nothing in the statutory framework prevents the Court from appointing an amicus curiae prosecutor, at least with respect to the article 70 proceedings and in other cases, where appropriate. This may be the case, for example, when the allegations concern a member of the Office or a witness who testified for it. Proceedings contaminated by suspicion of collusion are unlikely to meet the standards of international justice. It is the Court’s duty to ensure such situations do not happen.

Under article 42(1) of the Statute, the Office is an organ “responsible for receiving referrals and any substantiated information on crimes […], for examining them and for conducting investigations and prosecutions before the Court.” This article merely describes the Office’s duties within the Court’s system without prohibiting their temporary transfer to another person or entity, if the good administration of justice so requires.  Neither the Statute, nor the Rules of Procedure and Evidence suggest that the Office of the Prosecutor has exclusive power to conduct investigations and prosecutions of the offences within the Court’s jurisdiction for the Court’s benefit.

Appointing an amicus to deal with the contemptuous conduct is normal practice at the ad hoc tribunals, including when the Prosecutor may be conflicted. Admittedly, there is an express provision to this effect in their Rules. Nevertheless, the parallel with the ad hocs seems apposite. No statute provides for the power of those tribunals to punish contempt or the modalities of its exercise; however, such powers are not expressly prohibited, either. Thus, the contempt cases are a good illustration of the international courts taking initiative to face challenges that have not necessarily been articulated by the drafters.

To allay the conflict of interests related concerns, the Office of the Prosecutor may envisage the creation of a special division dedicated exclusively to the investigation and prosecution of the article 70 offences. Such division should be comprised of investigators and trial lawyers acting independently and reporting directly to the Prosecutor or a special Deputy Prosecutor. Those who work interchangeably on the core crimes and article 70 offences naturally tend to employ the same techniques and strategies to both, losing in efficiency and speed, as what is good for the core crimes is usually bad for the article 70 offences. Specifically, whereas the core crimes cases are largely predicated on witness evidence, in the article 70 cases such evidence alone may be insufficient to sustain a finding of guilt. Having a focused team will enhance productivity and effectiveness in full respect of the Statute and the fair trial rights of the accused.

Weekly News Wrap: Monday, May 9, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Events and Announcements: May 8, 2016

by Jessica Dorsey

Sponsored Announcements

  • Admissions to the Venice Academy of Human RightsBacklash against Human Rights? (4 – 13 July 2016), organised by the European Inter-University Centre for Human Rights and Democratisation (EIUC) are open until 22 May 2016. The Venice Academy of Human Rights is a centre of excellence for human rights education, research and debate. The  Venice Academy provides an enriching forum for emerging ideas, practices and policy options in human rights research, education and training. It hosts distinguished experts to promote critical and useful research, innovation and exchange of current knowledge. The theme Backlash against Human Rights? – International and regional human rights systems have witnessed remarkably outspoken critiques that emphasise a movement back towards the nation State and national sovereignty. The European Court of Human Rights is occasionally openly criticised, if not attacked, for overstepping its competencies and intervening in national affairs. National supreme courts reassert their own status and authority. Professor Robert McCorquodale, Director of the British Institute of International and Comparative Law in London, is the General Course Responsible “Two Steps Forward, One Step Back: Dancing to the Human Rights Beat”. Developments in human rights in recent years have seen the expansion of obligations on states, the extension of human rights responsibilities to international organisations and corporations, and the application in situations of armed conflict. There have also been resistance to these advances by groups within and across states. This series of lectures will explore these types of advance and resistance, and the opportunities and dangers these may indicate for human rights protections. The enrolment fee for the Venice Academy of Human Rights is – 1320 EUR including accommodation in a single room from 3-13 July – 1050 EUR including accommodation in a shared double room from 3-13 July – 700 EUR without accommodation. The fee includes: tuition, lunches on class days (Monday-Friday), refreshments, social events, accommodation (if applicable).
    Theme: Backlash against Human Rights?
    Dates: Monday, 4 July – Wednesday, 13 July 2016
    Faculty: András Sajó (opening lecture), Robert McCorquodale (general course), Helen Fenwick, Mark Goodale, Geir Ulfstein
    Participants: Academics, practitioners, PhD/JSD and master students
    Type of courses: Lectures, seminars, discussion sessions and panel presentations
    Number of hours: 34 hours
    Venue: Monastery of San Nicolò, Venice – Lido, ItalyInterested candidates should register by compiling the online application form. For any query about the Venice Academy please contact us at venice [dot] academy [at] eiuc [dot] org.
  • Admissions to the Venice School of Human Rights – Human Rights as Our Responsibility (24 June – 2 July 2016), organised by the European Inter-University Centre for Human Rights and Democratisation (EIUC) are open until 22 May 2016, early bird 15 April 2016 with 10% discount. The Opening Lectures of the School will be held by Prof. Manfred Nowak, Professor at the University of Vienna and EIUC Secretary General, one of the most renowned human rights experts (his academic career includes more than 400 publications) by Andrew Anderson, member of the Advisory Board of the Centre for Applied Human Rights at the University of York, Front Line Defenders on the Board of the EU Human Rights Defenders Mechanism, and by Hauwa Ibrahim, human rights lawyer who won the European Parliament’s Sakharov Prize in 2005. After a first session common to all participants dedicated to a general introduction on international systems of protection of human rights and related mechanisms, the programme will develop into the three thematic clusters – Business and Human Rights, Technical Progress and Human Rights and Violence against Women as Gender Based Violence. From ‘CEDAW’ To Istanbul And Beyond – among which participants will have to choose.The Venice School is addressed to graduate students from all academic backgrounds, students from the different regional masters in human rights and democratisation, to E.MA alumni as well as to human rights practitioners willing to deepen and improve their knowledge in human rights issues. Training language: All courses will be held in English. It is, therefore, essential that all participants understand and speak English fluently. All participants attending the Venice School of Human Rights will receive a certificate of participation upon completion of the course.The enrolment fee for 2016 Venice School of Human Rights is 1100,00 € and it will include:
    • tuition fee
    • lunches on class days
    • accommodation with breakfast included in a shared double-room for 9 nights (23 June – 2 July 2016) in Venice at the Crociferi residence (Crociferi)
    • free shuttle to/from EIUC site on class days at the starting and ending of lectures

    Interested candidates should register by compiling the online application form. For any query about the Venice School please contact us at veniceschool [at] eiuc [dot] org

Call for Papers

  • The Editorial Board of UCL Journal of Law and Jurisprudence is pleased to call for submissions for the second issue of 2016. This will be our ‘City Issue’ and the Editorial Board welcomes submissions that engage with this general theme. The topic is broadly conceived and leaves scope for any area of law or jurisprudence (domestic, regional or international) that is deemed to be ‘City’ related. See here for a non-exhaustive list of potential topics. The editors accept articles of 8,000-12,000 words, case notes of 6,000-8,000 words and book reviews of 1,000-2,000 words. All submissions must comply with the Oxford University Standard for Citation of Legal Authorities (OSCOLA). Contributions that have already been published or that are under consideration for publication in other journals will not be considered. The (extended) deadline for submissions is 15th May 2016. Manuscripts must be uploaded via the submissions section on the website. For further information and guidelines for authors please visit the website.

Announcements

Our previous events and announcements post 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.

Foreign Volunteers or Foreign Fighters? The Emerging Legal Framework Governing Foreign Fighters

by Daphne Richemond-Barak and Victoria Barber

[Dr. Daphné Richemond-Barak is an Assistant Professor at the Lauder School of Government, Diplomacy and Strategy at IDC Herzliya, and a Senior Researcher at the International Institute for Counter-Terrorism (ICT). Victoria Barber is a Master’s candidate at the Fletcher School of Law and Diplomacy, where she focuses on International Security Studies.]

The emerging legal framework governing foreign fighters, whose importance is set to grow, epitomizes assumptions we’ve made about the good, the bad, and the ugly in Syria. While the international community condemns the recruitment of “foreign fighters” by ISIS, it condones the recruitment of “foreign volunteers” by the Kurds.

That the international community has come together to condemn the recruitment of foreign “fighters” joining the Islamic State in Iraq and Syria (ISIS) is unsurprising: Since the late 1960’s, it has repeatedly opposed the involvement of foreign individuals in conflicts to which their state of nationality is not a party. After decades of condemnation by the United Nations General Assembly and Security Council, an entire (albeit-ineffective) regime outlawing mercenaries emerged, primarily to stop Westerners from fighting in African conflicts. It sent a clear signal as to the illegitimacy of participating in someone else’s war.

Though it could have built on this well-established framework, which is grounded in state sovereignty, the UN chose a more restrictive and case-specific approach. It addressed exclusively the case of foreign fighters travelling to aid ISIS and other designated foreign terrorist organizations (FTOs) operating in Syria, such as Jabhat al-Nusra. It purposefully did not mention mercenaries, which are covered by the broader anti-mercenary regime. Nor did it address the case of individuals who leave their home countries to join other groups fighting in Syria – or, for that matter, to fight alongside the Syrian government and its allies.

Quite the contrary: Western states have generally taken a permissive stance vis-à-vis individuals who join the ranks of the People’s Defense Units (YPG), the Kurdish militia in Syria. For more than two years, foreigners from Australia, Canada, the United States, the UK, and other countries have joined the ranks of the YPG as “volunteers” who are, more often than not, warmly and publicly received upon their return home. The UK maintains that there is a distinction between joining ISIS and joining the Kurds, pointing out that British law is designed to allow for different interpretations based on the nature of the conflict. Similarly, the Dutch government states that, while joining the YPG is not a crime in and of itself, foreign fighters can still be charged for crimes they committed in service of that membership, such as murder. Israel, too, declined to prosecute, or even reprimand, a Canadian-Israeli woman who traveled to Syria to fight as a volunteer with the YPG. This tacit acceptance of “foreign volunteers” also benefits a smaller number of Westerners travelling to Syria and Iraq to fight alongside Christian militias like the Dwekh Nawsha in Iraq.

The discrepancy between the treatment of the “good” auxiliaries combating ISIS and that of the “bad” ones ISIS recruits sets a dangerous precedent: Why classify the YPG as an acceptable group to join, but ISIS, Hezbollah or al-Nusra as an unacceptable one?

The nature of the group plays a role. The Kurds are viewed as defending their ethnic heartland in Syria against a barbaric movement known for wanton murder and enslavement. They are longstanding inhabitants of the region, and have a vaguely defined moral claim to the Syrian northeast, though not, if we go by most of the international community, a claim to sovereignty. The Kurdish Regional Government is slightly further along the continuum, with an effectively autonomous region and its own quasi-army, the Peshmerga, fighting to defend its homeland, ethnic kin, and other minorities.

But as beleaguered as the Kurdish community in Syria and Iraq is, the logic of extending blanket legitimacy to Kurdish militia, while categorically denying it to others, is difficult to sustain at the level of international policy. Hamas and Hezbollah, like the Kurdish PKK, effectively govern territory and have evolved into organized and recognized bodies. Yet foreign participation in one of these groups is unlikely to be regarded as acceptable.

Assuming we draw the line along the state/non-state divide, which is the simplest, we should feel comfortable with the involvement of foreigners on either side of the Russia/Ukraine conflict. Both can be regarded as joining forces with a sovereign government, whether Ukrainian nationalists from outside the country or Russian separatists and ethnic kin backed by the Russian government. Yet international condemnation came down against both sides as diaspora populations volunteered to fight. This suggests that the state/nonstate divide is not, in and of itself, sufficient to distinguish between legitimate and illegitimate forms of intervention.

The distinction could instead come from the conduct of the organizations, allowing volunteers to join groups that act within the bounds of international law and respect human rights. This distinction is appealing, particularly given ISIS’ ruthless violence, but it is a poor barometer. Most groups involved in the Syrian civil war have been shown to commit war crimes, even if ISIS is in a category of its own. The YPG has itself been accused of using child soldiers and carrying out ethnic cleansing in the areas it controls. Khorasan, al-Nusra, and the Sunni Islamic militias are generally viewed as non-compliant with the laws of war, as are Syrian government-allied auxiliaries such as Hezbollah and Iraqi Shia militia. But “volunteering” for these latter groups has not drawn similar condemnation.

Alternatively, we might be tempted to regard volunteering as acceptable when the volunteer shares some kind of ethnic, religious or ideological roots with the group. This, however, could justify virtually any foreign participation in any conflict – particularly in Syria, where neither foreign fighters nor foreign volunteers are thought to receive any meaningful monetary compensation. Clearly, they must be joining the fight because they share some kind of ethnic, religious, or ideological affinity with a party to the conflict. This rationale, moreover, could apply to ISIS as much as the YPG. Taking the Ukrainian conflict again as an example, the same considerations would apply: ethnic Russians and Ukrainians travelling to Ukraine identify with the separatists and nationalists, respectively. A criterion relating to shared ethnic, religious, or ideological roots is thus unhelpful in delineating the contours of legitimate foreign intervention.

The upshot of this is that none of the suggested criteria provide a satisfactory justification for why states – and, for that matter, international law – view joining the YPG as acceptable, but joining ISIS (or al-Nusra) as reprehensible. This lack of regularity undermines existing policies, as it gives the impression that the distinction is based on ideology, which is a dangerous precedent to set. This development is especially alarming given that the Western-backed coalition (including Russia’s) objectives may not align with those of the YPG’s in the long-run. Kurdish territorial ambitions in a fragmented Iraq and Syria are likely to increase – not diminish – with battlefield success, pitting them against the US, Turkey, Russia, and Iran once the guns fall silent.

Should such a change of affinity occur in the fight against ISIS, it could undermine the legitimacy of the emerging regulatory framework governing foreign fighters and make for awkward moments. The UK government experienced some embarrassment when the prosecution of a Swedish national collapsed after it emerged that the group he had joined in Syria was receiving covert support from the British government itself.

Ultimately, the treatment of Western foreign fighters joining the YPG (while it may appeal to our present sympathies) is not as straightforward as many states have made it seem. In the absence of objective criteria, the Security Council’s strong and welcome measures against foreign fighters could be undermined. In the years to come, as Syria re-constitutes itself or further fragments into rump ethnic states, we may look back at today’s auxiliaries and ask ourselves with some confusion who were the “foreign volunteers” and who were the “foreign fighters” in Syria’s horrific civil war.