Recent Posts

Final Compendium of High-Level Review of UN Sanctions Proposes Reforms to System

by Kristen Boon

The Compendium of the 2014 UN High Level Review of Sanctions, including its 150 recommendations, is now available here on the UN Website.  The Document number is A/69/941 – S/2015/432.  The review, sponsored by Australia, Finland, Germany, Greece and Sweden, took place from May –  November 2014, and involved a series of meetings between Member States, the Secretariat as well as other UN bodies.

The starting point of the review was to look at the 16 regimes in place, and discuss how to improve the existing sanctions system from there.  The compendium has many useful recommendations and observations.  Here are a few:

  • It emphasizes the move towards using sanctions to address trafficking in wildlife products and natural resources;
  • It highlights the importance of using sanctions to address transnational threats and new technologies; (Recommendation 146)
  • It recommends using sanctions to better address existing and emerging threats on, for example, incitement to genocide, sexual violence in conflict, and gross violations of women’s rights; (Recommendation 132)
  • It advocates the establishment of a Trust Fund for sanctions implementation assistance, a proposal originating from Jordan. (Recommendation 126).  While not going so far as to reference Article 50 of the UN Charter (special economic problems), together with recommendations 123 – 125 on assessments for assistance, it charts a future path towards better coordination and provision of assistance.
  • The Compendium also proposes better coordination between the ICC and the UN, highlighting the absence of clear processes in the past, and the possibility of future synergies.  For example, the compendium makes the very sensible recommendation of automatically listing individuals (where a relevant sanctions regime applies) after an arrest warrant has been issues by the Pre-Trial Chamber.  (Recommendation 100).

The compendium is a useful and current document, that gives a current state-of-play of UN sanctions while adding onto the Interlaken, Bonn and Stockholm and Greek initiatives of prior years.  Nonetheless, it must be noted that an attempt to pass a Security Council resolution last November on some of these same issues failed.   See the Security Council report assessment here of a draft resolution that was debated but never brought to a vote.   Attempts to strengthen capacity building, assistance and implementation for UN sanctions remain controversial – whether because of ongoing hesitation about the robustness of the tool, or because of opposition to strengthening the Secretariat’s policy making capacities.

What impact this document will have remains to be seen, but as the race heats up for the next Secretary General, one hopes that the recommendations will form part of the campaign, and further that future Secretary Generals will play a greater role in sanctions implementation, by for example, including substantive reports on sanctions in their briefings to the Security Council.  (See recommendation 50).

Weekly News Wrap: Monday, August 17, 2015

by Jessica Dorsey

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


Middle East and Northern Africa





Events and Announcements: August 16, 2015

by Jessica Dorsey


  • NALSAR International Law Society (affiliated to I.L.S.A) and NALSAR University of Law, one of the premier law schools in India, are glad to announce the launch of NALSAR International Law Journal. NALSAR International Law Journal, a biannual peer-review e- journal, seeks to provide a platform for highest quality debate on International Law, both on levels of theoretical abstraction and on the level of contemporary international legal issues. In this issue of the Journal, we have incorporated a wide range of articles, some dealing in policy questions, some doing normative analysis of a contemporary international legal issues. Prof. James Nedumpara’s article highlights the issue of widening of international law beyond traditional confines of “law of nations” and illustrates the role of networking societies in WTO engagements. Articles by Himanil Raina and Pratik Ranjan Das engage in a debate about a very contemporary issue of great significance—that is scope of Article 2 (4) of UN Charter and prohibition of use of force in light of modern issues like attacks by non-state actors and cyber-attacks. On a similar vein, Abhik Chakraborty’s paper deals with questions of attributability that has become especially important in this age of irregular warfare. Edrine Wanyama’s article examines the theoretical and normative underpinnings of the Calvo Doctrine and its importance especially for the Third World nations. Others have done analysis of issues such as Odious Debts, Immunity of International organisations and so on. Readers can access the Journal here. You can write to the editors at: nalsar [dot] ils [at] gmail [dot] com.
  • The Utrecht Journal of International and European Law is pleased to announce that the new issue of the journal, the 2015 General Issue, has just been published. The full Volume 31, Issue 81 of the Utrecht Journal of International and European Law is available here.

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.

New Essay on Perfidy and Permissible Ruses of War

by Kevin Jon Heller

Regular readers might remember a debate here and at Just Security (links here) in which I and a number of others debated whether it was perfidious for Mossad to use a booby-trapped civilian SUV to kill Imad Mughniyah, Hezbollah’s intelligence chief, in a Damascus suburb. I am pleased to announce that International Law Studies, the official journal of the US Naval War College, has just published an essay in which I explore the underlying legal issue at much greater length. Here is the brief abstract:

A number of scholars have claimed that it is inherently perfidious to kill an enemy soldier by disguising a military object as a civilian object. This essay disagrees, noting that conventional and customary IHL deem at least five military practices that involve making a military object appear to be a civilian object permissible ruses of war, not prohibited acts of perfidy: camouflage, ambush, cover, booby-traps, and landmines. The essay thus argues that attackers are free to disguise a military object as a civilian object as long as the civilian object in question does not receive special protection under IHL.

You can download the essay for free here. As you will see, although I disagreed with Rogier Bartels during the blog debate, I have since changed my mind — because of spatial limits conventional and customary IHL imposes on the use of booby-traps in particular, I now agree with Rogier that Mughniyah’s killing was, in fact, perfidious.

As always, comments more than welcome. My thanks to ILS for such an enjoyable publication experience!

Emerging Voices: The Law of the Sea as a Tool for Stability and Progress in the Eastern Mediterranean Sea

by Nikolaos Ioannidis

[Nikolaos A. Ioannidis is a PhD candidate in Public International Law (University of Bristol).]

On the verge of the 21st century, the discovery of “Noa”, a gas field offshore Israel, reinvigorated the Eastern Mediterranean (East Med) states’ interest in the sea. Additional hydrocarbon deposits were found in the sea waters adjacent to Israel, Gaza, Cyprus and Egypt, while the United States Geological Survey estimated that the Levant Basin alone contains 1.7 million barrels of oil and 122 trillion cubic feet of natural gas. These developments made the regional states realize that, in order to avail themselves of the immense underwater wealth, they should first demarcate their maritime space in conformity with the law of the sea rules. This post analyses the maritime boundary delimitation agreements concluded so far in the East Med. It should be pointed out that these are the first EEZ delimitation agreements to have been signed in the Mediterranean Sea. Perhaps the most noteworthy features of these arrangements is the use of the median line and the adherence of Israel to the 1982 Law of the Sea Convention (LOSC or the Convention) rules on the EEZ and maritime delimitation, despite the fact that it is not a state-party to the Convention.

In particular, four East Med states proceeded with the conclusion of bilateral maritime boundary delimitation agreements; the first delimitation agreement between Egypt and Cyprus in 2003 was followed by another two between Lebanon-Cyprus in 2007 (pending ratification by Lebanon); and Israel-Cyprus in 2010. All three agreements are concise and comprise five virtually identical articles each. Undoubtedly, maritime boundary delimitation is a pivotal function within the realm of the law of the sea. As the Arbitral Tribunal in the Bangladesh/India Award stressed:

“The importance of stable and definitive maritime boundaries is all the more essential when the exploration and exploitation of the resources of the continental shelf are at stake… the sovereign rights of coastal States, and therefore the maritime boundaries between them, must be determined with precision to allow for development and investment (emphasis added).”

Even though the East Med states maintain variant positions on maritime affairs, they have perceived the utility of the law of the sea apparatus in facilitating hydrocarbon exploration and exploitation, hence they decided to act within its ambit and collaborate with a view to gaining multiple profits from the energy windfall.

Legal analysis of the agreements

In the Preambles of these instruments, the contracting parties set forth the desire for cooperation, note the importance of EEZ delimitation “for the purpose of development” and recall the relevant LOSC provisions. The invocation of the LOSC in the Israeli-Cypriot agreement is of utmost significance as it not only illustrates the universal application of the Convention, but, most importantly, highlights the willingness of Israel to act in conformity with the LOSC, despite not being a party to the Convention, at least in terms of the provisions relevant to the EEZ. In any event, the EEZ concept forms part and parcel of customary international law, thus, even non-member states to the Convention are entitled to use and are obliged to observe the relevant rules [Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Judgment) [1982] ICJ Rep. 18, para. 100; Delimitation of the Maritime Boundary in the Gulf of Maine Area [1984] ICJ Rep. 246, para. 94; Continental Shelf (Libyan Arab Jamahiriyia/Malta) (Judgment) [1985] ICJ Rep. 13, para. 34].

Perforce Article 1(a) of each agreement, the maritime limit between the contracting states is the median line, namely a line “every point of which is equidistant from the nearest points on the baselines of the two Parties” (Article 15 LOSC). The mutual acceptance and use of the median line evinces the establishment of a regional practice in the East Med favouring this method, contrary to the efforts of Turkey, which has diachronically been rejecting the median line/equidistance principle; instead, Turkey has been advocating the vague equitable principles/relevant circumstances method, which provides that all relevant factors should be considered so as to reach an equitable result. Paragraphs b-d of Article 1 address the definition of the coordinates of the maritime boundaries.

Furthermore, (more…)

New Opportunities to Research Civil War at Melbourne Law School

by Kevin Jon Heller

My colleague Anne Orford has just received — and deservedly so — a very significant Australian Laureate Fellowship for a program entitled Civil War, Intervention, and International Law. The program is funded by the Australian Research Council from 2015 to 2020 and will establish an interdisciplinary research team based at Melbourne Law School. Here is a snippet from the description of the program:

Professor Orford’s ARC Laureate Fellowship Program will undertake a comprehensive analysis of one of the most pressing questions in contemporary international law and politics: whether, and if so under what conditions, foreign actors can lawfully intervene in civil wars. The lawfulness of external intervention in the domestic affairs of states is one of the most enduring and contested topics of debate within the disciplines of international law and international relations. The intensity of debates about the legality of intervention by the US and its allies in Iraq and Syria on the one hand, and by Russia in the Ukraine on the other, illustrates both the urgency of this issue and the difficulty of finding general principles to address it. The project will combine archival research, legal analysis, and critical theorising to develop a conceptual framework that can better grasp the changing patterns and practices of intervention.

The program is now inviting applications for two Postdoctoral Fellowships, which are full-time, fixed term research positions that can last up to five years. Here is the description:

The Postdoctoral Fellows will be appointed to undertake projects that explore the historical and contemporary practice of interventions in a specific region, chosen from Africa, Asia, Europe, Latin America, or the Middle East. The specific regional studies, as well as the cases to be explored as part of those regional studies, will be chosen by the Postdoctoral Fellows in conjunction with Professor Orford. The Postdoctoral Fellows will take responsibility under the supervision of Professor Orford for developing the regional studies and for drawing out cross-cutting themes between them. The aim will be to map and evaluate the specific legal, political, and economic issues that have influenced and shaped interventions in civil wars in particular regions, the legal justifications that have accompanied those interventions, and the normative innovations that have resulted. It is well accepted, for example, that the principle of non-intervention has a particular meaning and importance in the inter-American context, as many early formulations of the principle emerged out of attempts to renegotiate the relation between the US and its near neighbours in Central and South America. Similarly, the responsibility to protect concept has a close association with African states and attempts to manage civil wars on that continent. The cases within each regional study may include pre- and immediately post-World War 2 situations (such as those in Spain and China), early post-colonial conflicts (such as those in Korea, Vietnam, and Cambodia), proxy wars of the 1980s (such as those in Afghanistan and Nicaragua), and post-Cold War situations (such as those involving the former Yugoslavia, Rwanda, the Democratic Republic of the Congo, Libya, Iraq, Ukraine, and Syria). The focus of the program is on developments over the twentieth and twenty-first centuries, but proposals focusing on nineteenth century practice will also be considered. It is anticipated that the studies undertaken by the Postdoctoral Fellows will be published as monographs.

The program is also seeking two PhD students:

The doctoral projects will each study an emerging area of conceptual innovation that has played a role in reshaping the broader normative framework governing intervention in civil war over the past decades. One project will analyse the impact of the related concepts of humanitarian intervention and the responsibility to protect, and the second will analyse the impact of the concepts of collective self-defence and intervention by invitation that have been invoked in the context of the war on terror. The projects will study particular cases of intervention in civil war that were justified either in terms of protecting civilians (using concepts such as humanitarian intervention or the responsibility to protect) or of responding to terrorism (using concepts such as collective self-defence or intervention by invitation). The projects will involve detailed analyses of how legal arguments have been used in practice – for example, the ways in which legal concepts have been invoked by parties to civil wars (including foreign interveners), the extent to which the use of legal arguments has been innovative and directed to transforming existing norms, the patterns of diplomatic and military practice that those legal arguments have sought to justify, how other states have responded to such justifications, what positions states have taken publicly in debates on relevant issues in the General Assembly and the Security Council, and how decisions by external actors to support or recognise particular groups have been publicly justified. It is anticipated that the resulting doctoral theses will be published.

Anne is a fantastic scholar, the law school has a superb academic culture, and there are very few places in the world more pleasant to live than Melbourne. I hope interested readers will apply. You can find more information here.

Emerging Voices: Excuse in International Law

by Arthur Kutoroff

[Arthur Kutoroff is a graduate of Cornell Law School. He can be reached at Kutoroff [at] gmail [dot] com.]

There is a fundamental asymmetry between the treatment of individuals and the treatment of states within international law: individuals may claim excuses for their violations of legal obligations, but states may not.

Philosophers and lawyers distinguish between justifications and excuses: an action is justified if it is morally good or right (or at least not bad or wrongful); an action is excused if it is wrongful but the actor is not culpable for the wrongful action. This distinction affects the rights of third parties as well: third parties may lawfully assist a justified action, but may not assist an excused action because excuses are personal to the excused.

This distinction has been widely influential in domestic criminal law, as many jurisdictions clearly distinguish between justifications such as self-defense and excuses such as insanity. International criminal law seems to recognize excuses as well. The Rome Statute provides defenses such as duress, insanity, and intoxication for defendants before the ICC, although the Rome Statute is not entirely clear about which defenses are justifications and which are excuses. Moreover, in the Erdemovic case the ICTY recognized duress as a defense, albeit in limited circumstances.

International law does recognize defenses for states that breach their international obligations, but it does not clarify which defenses are justifications and which are excuses. For example, in the 1838 Caroline affair, British forces entered United States territory to destroy an American ship that was supplying Canadian rebels during the Upper Canada Rebellion. In response, United States Secretary of State Daniel Webster argued in a letter to the British government that the British failed to meet the standard of self-defense, which requires “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment of deliberation.” This definition combines elements of excuse and justification. The requirement that an exercise of self-defense is necessary suggests that self-defense is a justification, since jurisdictions generally recognize that a necessary action is justified. Yet, as George Fletcher and Jens Ohlin explain, the requirement that one could not do otherwise invokes the idea of self-preservation, which is more an excuse than a justification. Moreover, that requirement that one has no moment of deliberation invokes the idea of provocation, which is arguably a partial justification and a partial excuse.

Yet more recently international law has abandoned the language of excuse. The United Nations Charter authorizes the use of force if Security Council approves the use of force, and also maintains “the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” In both of these circumstances, the use of force is justified, not merely excused: a state using force with UN Security Council approval or in self-defense has not committed a wrongful action.

Since World War II, international law has continued to recognize defenses to breaches of international obligations, but it has not clearly distinguished between justifications and excuses. Yet defenses in international law seem more like justifications than like excuses. As an illustration, consider the Draft Articles on State Responsibility, which provides a set of defenses to breaches of international law. Consider the defense of necessity, which was described in the Draft Articles and recognized by the ICJ in the Gabčíkovo-Nagymaros Project case. The Draft Articles describe necessity as “a ground for precluding the wrongfulness of an act not in conformity with an international obligation,” which invokes the language of justification rather than excuse. Recently the UN General Assembly has commended the Draft Articles (now just “the Articles”), further solidifying their place in international law yet further entrenching the ambiguity between justifications and excuses.

International law should consider recognizing excuses for states, as the theories that warrant the provision of excuses for individuals may apply to states as well. As an illustration, consider H.L.A. Hart’s theory of excuses: agents should be punished for their actions only if they have “the normal capacity, physical and mental, for doing what the law requires and abstaining from what it forbids, and a fair opportunity to exercise these capacities.” Hart considers various excuses, such as duress, mistake, and insanity, and notes that in these circumstances the defendant “could not have done otherwise.” There are other theories besides Hart’s: scholars have advocated alternative theories of excuse grounded in causation, choice, character, utilitarianism, and other considerations as well. But given H.L.A. Hart’s influence, his theory is a useful starting point.

Hart’s capacity and opportunity theory of excuse seems to apply to states as well as to individuals. Consider the prospects of a duress defense for states. States may be subject to coercive pressure from other states, and such coercive pressure may undermine the normal capacity of a government to act in conformity with international law. Moreover, coercive pressure from other states may deny a state a fair opportunity to conform their conduct to the requirements of international law.

To an extent, international law already recognizes duress, as the Draft Articles recognize coercion as a defense. Yet international law should clearly recognize duress or coercion as an excuse, not a justification. The moral significance of coercion is not that coercion justifies an otherwise wrongful action, but rather that it transfers culpability to the coercive third party. Were international law to recognize duress as an excuse, it would open the conceptual space to condemn wrongful conduct without condemning those who lacked the opportunity and capacity to follow their obligations.

As illustration of the effect of duress on state conduct, (more…)

Emerging Voices: What’s in a Mandate? Protecting Civilians in South Sudan

by Bart Smit Duijzentkunst

[Bart L. Smit Duijzentkunst recently received his PhD in international law from the University of Cambridge. He will be teaching international law at the Fletcher School of Law and Diplomacy, Tufts University, in the 2015 fall semester.]

When, in December 2013, the United Nations Mission in South Sudan (UNMISS) opened its gates to thousands of civilians fleeing violence in the wake of an alleged coup, it also opened a new chapter on the UN’s commitment to the protection of civilians. Two decades earlier UN troops had received vague orders to protect “safe areas” in Bosnia and Rwanda—with disastrous consequences. Today UNMISS is explicitly authorised to use “all necessary means” to protect civilians. Yet while the language of UN mandates has evolved, so have developments on the ground. UN policy-makers originally envisioned protection of civilians measures as short-term, localised interventions to ensure the physical safety of persons in acute emergency situations. In South Sudan, however, 18 months after the outbreak of hostilities almost 140,000 people continue to reside in so-called “protection of civilians sites” across the country. As a result, UNMISS peacekeepers are not simply called upon to protect against external threats, but also to maintain public safety and security within protection of civilians sites. But does their mandate cover these activities? This post briefly discusses the evolution of peacekeeping mandates before offering some reflections on UNMISS’ authority.

Protection of civilians mandates emerged in UN Security Council practice on the eve of the new millennium. In “traditional” mandates, the protection of civilians had been an afterthought, the fortuitous consequence of other peacekeeping objectives. For example, the mandate of UNPROFOR, operating in the Balkans in the mid 1990s, merely called upon the mission to deter attacks on so-called “safe areas”, to monitor cease-fires and to promote the withdrawal of military and paramilitary units from these areas. UNPROFOR could only take “all necessary measures”, including the use of force, in self-defence. Similarly, when UNAMIR in Rwanda was authorised to establish “secure humanitarian areas” in 1994, the UN Security Council recognised that the mission might be required to take action in self-defence to protect the areas, but did not explicitly authorise it to use force to do so.

Propelled by the failures in Bosnia and Rwanda, and encouraged by the emerging idea that the international community held a “responsibility to protect” vulnerable populations, in 1999 the UN Security Council started to explore the protection of civilians as an objective of peacekeeping. It began passing dedicated resolutions and included protection of civilians clauses in operational mandates. These “robust” mandates reflect a recognition by the Security Council that impartiality of UN peacekeeping operations “is not the same as neutrality or equal treatment of all parties in all cases for all time” and that in certain circumstances “peacekeepers may not only be operationally justified in using force but morally compelled to do so.”

In the same year, the UN Security Council vested certain missions with far-reaching administrative powers. UNMIK in Kosovo and UNTAET in East Timor were tasked to provide administrative functions while developing domestic institutions. In line with their “executive” mandates, these missions were empowered to draft local laws, implement domestic policies and administer justice, including arresting and sentencing alleged criminals, until these powers were transferred to local governments (in 2008 and 2002 respectively).

With these differences between traditional, robust and executive mandates in mind, let’s return to the situation of UNMISS. Following South Sudan’s independence on 9 July 2011, UNMISS’ initial mandate focussed on state-building and conflict resolution efforts; the protection of civilians was buried deep in its sub-clauses. These political ambitions went up in flames with the outbreak of violence on 15 December 2013, when an alleged coup triggered a civil war between Government forces, led by President Salva Kiir, and the Sudan People’s Liberation Movement/Army – In Opposition (SPLM/A-IO), headed by former vice-President Riek Machar.

In light of the persistent fighting and the massive influx of internally displaced persons and refugees onto UNMISS premises, the UN Security Council revised UNMISS’ mandate in November 2014 to make the protection of civilians its top priority. The new, robust mandate removes references to “imminent” threats, simply authorising UNMISS to “use all necessary means” to “protect civilians under threat of physical violence, irrespective of the source of such violence”. While housing, food and sanitation are principally provided by humanitarian organisations, UNMISS is in charge of “maintain[ing] public safety and security within and of UNMISS protection of civilians sites”.

This is not the first time that the UN has provided shelter to civilians on its premises: from East Timor to Palestine, over the last decades civilians have flocked to UN bases in the face of violence. The UN has developed various policies to deal with these situations, which range from setting out general principles to providing specific guidelines on civilians seeking protection at UNMISS sites (the latter drafted prior to December 2013). All these documents stress the exceptional and temporary nature of these measures: they speak of protection in terms of hours or days, not weeks or months. Yet as the conflict in South Sudan persists and peace remains elusive, what might have seemed a temporary measure at first has turned into a prolonged situation with few prospects of resolution.


Emerging Voices: Powers of the Security Council to Make Determinations Under Article 39 of the Charter in Case of Cyber Operations

by Janos Ferencz

[Janos Ferencz, LL.M., is a Visiting Research Fellow at The Minerva Center for the Rule of Law under Extreme Conditions at the Faculty of Law and Department of Geography and Environmental Studies, University of Haifa and a Legal consultant at Panteia, the Netherlands.]

The rapid proliferation of malicious cyber operations in recent years has underlined a growing concern about the risks presented by cyber space to international peace and security. The UN General Assembly noted in Resolution 69/28 (2014) the increasing concerns about the use of information technologies “for purposes that are inconsistent with the objectives of maintaining international stability and security” (UN Doc. A/Res/69/28, 2 December 2014, preambular para. 9). The importance of understanding when cyber operations represent a threat to international peace and security lies in the Security Council’s Chapter VII powers. Under Article 39 of the Charter, its powers to adopt non-forceful and forceful measures can only be activated once there is a determination that a cyber operation is a “threat to the peace, breach of the peace, or act of aggression.” The academia has paid only limited attention so far to analysing the conditions under which cyber operations can reach this level. This post aims to fill this gap by assessing whether, and if so, under what conditions can cyber operations trigger the applicability of Article 39 of the Charter.

Cyber operations and the threshold of Article 39

A cyber operation must be understood as a broad concept, incorporating “the employment of cyber capabilities with the primary purpose of achieving objectives in or by the use of cyberspace” (Tallinn Manual, para. 2, p. 15). The Tallinn Manual experts unanimously agreed that the Security Council possesses the authority to determine that a cyber operation constitutes a threat to the peace, breach of the peace, or act of aggression (Tallinn Manual, Rule 18). The question remains, however, what are the prerequisite circumstances for such an operation to attain the level of gravity required by Article 39?

A breach of the peace is generally characterized by armed hostilities between States, while an act of aggression manifests through the direct or indirect use of force. The concept of “threat to the peace” is the broadest and most frequently used one by the Security Council. From a cyber perspective, the two former scenarios, although theoretically possible, remain less likely to occur in practice since the Security Council has yet to make a determination that an event amounted to an act of aggression, and only a handful of situations were found to have breached the peace (e.g. the invasion of South Korea or Kuwait). For this reason (and taking into account also spatial limitations) this post focuses on the circumstances qualifying cyber operations as a threat to international peace and security.

The Security Council has broad discretion under Article 39 to conclude that any kind of conduct or situation amounts to a threat to international peace. Finding the lowest common denominator across the Council’s past practice falls beyond the scope of this post but suffice it to say that a “threat to the peace” is deemed a political concept (Tadić Decision on Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 29) that builds on the Council’s interpretation of the concept of “peace”. Although the early practice of the Council has shown a narrow interpretation of this concept, viewing “peace” as the absence of use of force between States (J. Frowein, ‘Article 39’ in B. Simma (ed.) The Charter of the United Nations: A Commentary (2nd edn., OUP, 2002), at p. 720), the recent practice of the Council indicates its willingness to broaden that interpretation. This is best evidenced by the Council’s acknowledgement that the HIV/AIDS pandemic can pose a security threat (SC Res. 1308, 17 July 2000) as well as the determination on the existence of a threat to international peace and security in West-Africa due to the outbreak of Ebola (SC Res. 2177, 18 September 2014). Nonetheless, the Council has always been careful to consider the impact of an internal situation upon regional or international stability. This criterion is common across all Article 39 determinations, and entails that any event or phenomena that undermines regional or international stability by creating a risk for unrest or hostilities in the short or medium term could fall within the purview of Article 39.

Thus, a cyber operation will amount to a threat to peace within the meaning of Article 39 when it creates the threat of jeopardizing regional or international stability. Cyber operations targeting the critical infrastructure of a State will likely fulfill this threshold. Similarly, the US DoD concluded that “computer network attacks that caused widespread damage, economic disruption, and loss of life could well precipitate action by the Security Council” under Article 39 (US DoD, An Assessment of International Legal Issues in Information Operations, May 1999, p. 15).

The cyber operation itself need not be a violation of international law per se for it to fall within the ambit of Article 39. This raises interesting questions about the exploitation of cyberspace for the purposes of espionage, which is, in principle, not prohibited by international law. This question is particularly relevant in the aftermath of Edward Snowden’s revelations regarding the NSA’s surveillance programme in 2013.

In my view, there are two main approaches to assessing cyber espionage under Article 39. Firstly, relying on the threshold set out above, cyber espionage could represent a threat to international peace and security when it creates destabilizing effects on regional or international stability to the extent that a potential risk of unrest and hostilities between States will arise. One example would be recourse to dual-use malwares that not only steal information but also produce widespread destructive or disruptive effects. However, it is unlikely that data breaches on their own would fall within the scope of Article 39 unless there is a prospect for hostilities as a result of the breaches. Furthermore, due to the threat of veto by any permanent member of the Security Council, it remains unlikely that in the near future cyber espionage incidents will be formally declared a threat to international security.

The alternative approach is to (more…)

Weekly News Wrap: Monday, August 10, 2015

by Jessica Dorsey

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


Middle East and Northern Africa





Events and Announcements: August 9, 2015

by Jessica Dorsey


  • The International Colloquium – Current Issues of Agricultural Law in a Global Perspective (2015 AgLaw Colloquium), will be held at the Scuola Superiore Sant’Anna Pisa, September 1718, 2015. The Scuola Superiore Sant’Anna and the Institute of Law, Politics and Sustainability are pleased to announce the First Edition of the International Colloquium on Current Issues in Agricultural Law in a Global Perspective. The Colloquium is intended to be an opportunity for Post Docs and Ph.D Candidates to present and discuss their research results and methodological approaches in a supportive environment. The aim is to build a community of early career researchers interested in agricultural law and its intersections with other legal areas. We welcome both theoretical and empirical papers as well as studies on issues at the local, regional and international levels. The main topics include: Natural Resources and Environmental Protection at the cross-roads with Agricultural Law; Agricultural models and People’s Rights; Agri-Food Production: Tradition and Technologies; International Trade Agreements, Investment Law and Agriculture. For those interested in participating as auditors, the Programme (.pdf) is now available.


  • The International Criminal Court has posted a vacancy announcement for Visiting Legal Professionals. The posts are for three- to six-month periods and are funded. The Legal Professionals Programme is a new initiative aimed at bringing up to ten court representatives and professionals from situation countries (currently: Democratic Republic of the Congo, Uganda, Central African Republic, Sudan, Kenya, Libya, Côte d’Ivoire and Mali) and countries under preliminary examination (currently: Afghanistan, Colombia, Nigeria, Georgia, Guinea, Honduras, Iraq, Ukraine and Palestine) who may not have the financial means to otherwise participate in the Visiting Professionals Programme. Participants in this programme will gain first-hand experience from and knowledge of the ICC and its procedures. This will allow participants to develop their legal skills and knowledge of the Rome Statute system, and to subsequently impart lessons learned and best practices to their home organisations. Witnessing the functioning of the only permanent international criminal court will enable participants to contribute to the development of national capacities in their home countries to investigate and prosecute crimes within the jurisdiction of the ICC. The deadline is rather soon–16 August 2015. More information can be found in the vacancy announcement here.
  • The Minerva Center for the Rule of Law under Extreme Conditions at the Faculty of Law and Department of Geography and Environmental Studies, University of Haifa invites researchers (graduate students at the MA/PhD levels, post-Doctoral researchers, scholars and practitioners) to submit research proposals on aspects of Cyber Regulation, Policy and Theory. As part of the Fellowship, Fellows will be provided with working space and accommodation in Haifa for periods of between one to twelve months. It is expected that Fellows will take part in the activities of the Center during their stay. The call is open to both domestic and international applicants. A combination of residency in Haifa (for a minimum of one month) and long distance collaboration will also be considered. The application deadline is 10 September. More information can be found here.

Calls for Papers

  • On  12-13  November  2015,  the  Research Unit in Law of the University of Luxembourg,  with  the  support  of  the  Fonds  National de la Recherche Luxembourg,  will be holding a conference on the settlement of tax disputes under international law, with the aim of analysing taxation issues through the lens of international law and its dispute settlement procedures, and bringing   together international  lawyers  and  tax  lawyers  to  do so. Confirmed speakers already include Prof. Mads Andenas (University of Oslo), Prof. Ilias Bantekas (Brunel University), Dr N. Jansen Calamita (BIICL), Dr Abba Kolo (CEPMLP Dundee), Dr Sébastien Manciaux (Université de Bourgogne), Dr  Luca  Pantaleo  (TMC  Asser  Instituut),  Prof.  Alexander Rust (Vienna University  of  Economics and Business) and Epaminontas Triantafilou (Quinn Emanuel). Part of the conference will be a roundtable discussion for junior scholars; giving  them  an opportunity to present their research on issues covered by the conference and to receive feedback from the conference speakers. Those selected  will  receive  a  bursary  to fund their travel and accommodation expenses, and may also have the opportunity to contribute to the conference proceedings, which will be published. We are now calling for applications to  present  a  paper  at  the  roundtable, and invite junior scholars (PhD candidates,  post-docs and fellows) with research interests in the field to apply by submitting an abstract (not exceeding 800 words) of their proposed paper, together  with  a  copy  of  their  CV,  to Prof. Matthew Happold (Matthew [dot] Happold [at] uni [dot] lu). The deadline for submissions is 5 September 2015.

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.

Goodbye to Torture at the APA

by Jens David Ohlin

Today, the American Psychological Association formally voted to end their enrollment in national security interrogations. This would seem to finally put an end to the organization’s involvement in post-9/11 torture against security detainees.

The vote comes on the heels of the Hoffman Report, which was prepared by attorney David Hoffman of Sidley Austin LLP.  Hoffman was hired by the APA to perform an internal investigation of the organization’s role in post-9/11 security interrogations that involved torture. The results of the report were damning. It was already common knowledge that psychologists were deeply involved in overseeing the interrogations that used torture, and that a few psychologists received millions of dollars from the CIA for their work. But the Hoffman Report conclusively established that key figures within the APA worked closely with administration officials (indeed colluded with them) to ensure that the organization’s ethical guidelines continued to permit the involvement of psychologists.

After the Report’s release, it was a little bit unclear what action the organization would take. Since much of the APA’s leadership was involved in the mess, reformers within the organization were seeking the removal or resignation of several officers. Some of those resignations happened in July.

Today comes the second part of the reform: a decision by the organization to ban its members from participation in all national security interrogations, whether or not they involve torture. Here is an excerpt from the resolution which passed overwhelmingly:

BE IT FURTHER RESOLVED that, in keeping with Principle A (Beneficence and Nonmaleficence) of the Ethics Code to “take care to do no harm,”4 psychologists shall not conduct, supervise, be in the presence of, or otherwise assist any national security interrogations5 for any military or intelligence entities, including private contractors working on their behalf, nor advise on conditions of confinement insofar as these might facilitate such an interrogation6. This prohibition does not apply to domestic law enforcement interrogations or domestic detention settings where detainees are afforded all of the protections of the United States Constitution, including the 5th Amendment rights against self-incrimination (“Miranda” rights) and 6th Amendment rights to “effective assistance” of legal counsel.

Fn4 Ethical Principles of Psychologists and Code of Conduct. (2002, as amended in 2010), American Psychologist, 57, 12, p. 3.

Fn5 For the purposes of this policy statement, “national security interrogations” refer to the interrogation of any detainee in the custody of any agency or subsidiary agency that reports to the Director of National Intelligence, the Secretary of Defense, the Director of Homeland Security, or the National Security Council, including joint elements such as the High-Value Detainee Interrogation Group. This also includes any operations by those agencies with any allied governments or non-state actors, including private contractors. This does not include those detainees held under domestic law enforcement where Miranda Rights and the U.S. Constitution apply.

Fn6 Psychologists may provide consultation with regard to policy pertaining to information gathering methods which are humane so long as they do not violate the prohibitions of this Resolution and are not related to any specific national security interrogation or detention conditions.

Interestingly, the ban does not apply to domestic law enforcement interrogations.