Public International Law

By admin on mayo 15th, 2013

Court between A Rock and a Hard Place: Comoros Refers Israel’s Raid on Gaza Flotilla to the ICC

Court between A Rock and a Hard Place: Comoros Refers Israel’s Raid on Gaza Flotilla to the ICC

Comoros has referred the action of Israeli troops in boarding the flotilla headed to Gaza on 31 May 2010 to the International Criminal Court. The ICC Prosecutor has announced that she is opening a preliminary examination of the situation and it now remains to be seen whether this will lead to a proper investigation and perhaps even charges being brought by the ICC against Israeli troops or officials. Israel, of course, is not a party to the Statute of the ICC, but this does not itself mean that the ICC cannot exercise jurisdiction over Israeli nationals or officials (see my 2003 article on this issue). Comoros is a party to the Statute and the main vessel on which the Israeli actions took place, the Mavi Marmara, was registered in Comoros. Under Article 12(2) of the ICC Statute, the Court may exercise jurisdiction not only to nationals of State’s party to the ICC statute but also, crucially, where:

(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft [is a party to the Statute];

Since the Israeli action took place on a vessel that is registered in a State party to the ICC Statute, the action is within the jurisdiction of the ICC. Comoros also points out that a second of the six vessels in the Gaza flotilla boarded on 31 May 2010 – the M.V. Eleflheri Mesogios or Sofia - is registered in Greece which is also a party to the ICC. In addition, Comoros says that a further vessel boarded by Israel a week later – the MV Rachel Corrie- is registered in Cambodia, which is also an ICC State party. It must also be taken as referring the incident regarding those other vessels to the ICC (assuming there were any incidents committed on board those vessels that would amount to crimes within the jurisdiction of the ICC). It is worth noting that a State party is entitled to refer any situation involving crimes within the jurisdiction of the Court to the prosecutor. Thus Comoros is entitled to refer a matter that did not occur within its territory to the ICC.

Israel’s actions with regard to the flotilla have already been the subject of investigations by Israel, Turkey and by two UN bodies. The allegations that actions on board the vessels were contrary to international law finds support in the reports by the UN commissions (see Yuval Shany’s discussion of Human Rights Council’s Fact Finding Commission here, and Douglas Guilfoyle , Tamar Feldman and Marko’s discussion of the Palmer Report here, here here). However Israel’s Turkel Report comes to the opposite conclusion (see discussion by Amichai Cohen and Yuval Shany here). It is to be noted that the referral by Comoros comes just days after it was announced that Israel and Turkey were close to reaching an agreement on compensation for the Turkish victims of the incident.

The referral by Comoros is significant for the ICC for a number of reasons and as outlined below is likely to test political support for the Court. While action by the Court against Israel is likely to prove unpopular in some circles, failure by the Court to act in a situation involving Israel, and perhaps more importantly failure to act on a referral by an African State against a non-African State, will perhaps prove even more unpopular in a constituency crucial to the ICC.

The first way in which the referral is significant is that the referral by Comoros is, arguably, the first example in practice of how the State referral system in the ICC Statute was intended to operate – a State referring the actions of another State to the ICC. Although this is not the first State referral to the ICC, it is the first time that a State has referred a matter involving the actions of another State (or more accurately, the officials of another State) to the ICC. The other State referrals (those with regard to the Democratic Republic of Congo, Central African Republic, Uganda, Cote d’Ivoire and Mali) were all so-called “self-referrals”. They were instances of States referring actions occurring on their territory to the ICC. Defined as such, the Comoros situation is also a kind of “self-referral” – an instance of a State referring conduct occurring on this territory to the ICC. However, this referral is different as Comoros is specifically asking for actions of foreign State officials to be investigated. In previous cases of self-referrals, the ICC has investigated actions of nationals of foreign States (both nationals of other State parties and non-State parties) taking place on the territory of the referring State. For example, the investigation and prosecution of Rwandese nationals Bosco Ntaganda and Callixte Mbarushimana for crimes allegedly committed in the DRC, or of DRC national Bemba for crimes committed in the Central African Republic. However, the ICC has not yet taken action against officials of a non-State party for actions occurring in the territory of a State party. One point that could be made is that the fact that Comoros referral is both a referral by the territorial State and a referral against another State suggests that the theoretical and practical divide between so called “self-referrals” and “antagonistic referrals” (by one State against another) is not as big as has been suggested. This point was made by Darryl Robinson in an excellent article discussed here a couple of years ago.

Secondly, the referral by Comoros is significant politically and institutionally because what we have is an African State referring a situation involving a non-African State to the ICC. Given the tension between the African Union and the Court, this referral raises challenging issues for the Prosecutor. If the Prosecutor declines to investigate this becomes one more point that may be used to argue that the Court is simply a Court for (read ‘against’ Africans). I have stated on several occasions (see here, and here ) that I think the tension between African States and the ICC is overblown. The current prosecutor Fatou Bensouda, who is of course African, has, in my view, done a fantastic job in pointing out that prosecution of African criminals should be regarded as the ICC taking African victims seriously. One point that we have both made is that most of the ICC situations involving African States have come to the Court with the support of those States (self-referrals and even the Kenya propio motu situation) or other African States (eg on the UN Security Council). However, it would be politically damaging if in the first situation where an African State refers a matter involving a non-African State, the ICC declines to investigate. The prosecutor is not bound to commence an investigation following a State referral but a failure to investigate the Israeli action would be the first time that there have been no ICC investigations following a State referral. If that happens, cue the chorus of disapproval from other African States.

Thirdly, the referral raises the politically difficult issue of the ICC exercising jurisdiction over Israeli action. There has been the attempt by Palestine to accept the jurisdiction of the ICC under Article 12(3) of the Statute, while remaining a non-party. That attempt to create ICC jurisdiction over Israeli action has thus far proved unsuccessful (as discussed here) as the former ICC Prosecutor decided that he could not take action based on the Palestinian declaration. While that declaration would have given the ICC jurisdiction over all acts committed in Palestine, this referral only gives extremely limited jurisdiction with regard to acts occurring within the context of the Israeli-Palestinian conflict. Only the acts occurring on board those vessels are covered by the referral. Nonetheless, one can also expect significant disapproval from Israel and some other States (not least from conservative politicians in the United States) if the ICC does commence an investigation.

The combined effect of the second and third points above is that the ICC Prosecutor can expect a measure of disapproval whichever way she turns on this issue. I wonder whether this referral might be the Nicaragua moment for the ICC. When the International Court of Justice was faced with that case against the United States in the 1980s it chose to accept jurisdiction in a case against a super power with the consequence that the US withdrew its optional clause accepting the compulsory jurisdiction of the ICJ. However, that acceptance by the ICJ of jurisdiction and the subsequent decision against the US – on the merits - proved to be the turning point in the Court’s popularity. A court that had previously had little to do (at least in the 20 or so years up till that point) became rather popular for States. By contrast, the decision of the ICJ in the 1960s not to decide the South West Africa cases (brought by Ethiopia and Liberia against South Africa) was arguably the reason for the lack of affection towards the court by many (developing) States. Although expected reaction is not sufficient reason for the ICC to open (or to decline) an investigation, I would be surprised if these considerations did not cross the mind of the ICC Prosecutor.

One issue that the Prosecutor must consider is whether the referral falls within the scope of State Party referrals as provided for in the Statute. Under Articles 13(a) and 14(1) of the ICC Statute, a State Party may refer to the ICC Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed. States may not refer cases to the ICC, only a situation. It is then up to the Prosecutor on the basis of her investigation to decide on which cases, if any, to commence. One question raised by the referral of the Flotilla raid to the ICC is whether this is incident qualifies as a situation. The Statute does not define ‘situation’ but it is taken to be broader than a case. I agree with Kevin Jon Heller at Opinio Juris that though the incident referred by Comoros is much narrower than other situations referred to the ICC, it is a ‘situation’ under the Statute. The Statute itself contemplates that a situation may only consist of one crime within the jurisdiction of the Court. Although most situations have referred to the entire territory of a State, this has not been so invariably – the Security Council only referred the situation in Darfur (Sudan) to the ICC and Uganda only referred the situation involving the Lord’s Resistance Army in northern and western Uganda to the ICC. One may think that a situation must refer to the entire conflict (where it relates at all to a conflict) or to entire genocide or attack on a civilian population (in the case of crimes against humanity). The way in which the ICC responded to Uganda’s referral would tend to support this. Although it appeared that Uganda was only referring acts by the Lord’s Resistance Army, the ICC Prosecutor interpreted the referral so as to encompass all crimes committed in Northern Uganda in the context of the conflict involving the Lord’s Resistance Army. This approach would suggest that a referral of a situation must relate to the conflict entire Palestinian conflict or perhaps the conflict between Hamas and Israel. However, the ICC does not have jurisdiction over that entire conflict. It only has jurisdiction over very limited acts committed in the course of that conflict. A State party can only refer matters already within the jurisdiction of the ICC, so for the purposes of referral by States parties, situation can only mean those matters within the Court’s jurisdiction. Therefore a limited referral ought to be accepted where it is defined to confine matters to those within the Court’s jurisdiction.

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By admin on abril 28th, 2013

General Assembly, Adopting Political Text, Pledges to Address Twin Imperatives of Security, Development, in Efforts to End Conflict in Africa

General Assembly, Adopting Political Text, Pledges to Address Twin Imperatives of Security, Development, in Efforts to End Conflict in Africa

Declaration Reaffirms Importance of UN-African Union Partnership,

Capping Two-day Event amid Calls for Africans to Take Charge of Peace Efforts

Recognizing that the “indispensable” partnership between the United Nations and the African Union remained a solid foundation for the peaceful resolution of conflicts in Africa, Governments in the General Assembly today welcomed intensified cooperation between the two organizations in order to stamp out all outstanding disputes on the continent.

African leaders joined Foreign Ministers and other senior officials in the consensus adoption of a political declaration on the peaceful resolution of conflicts in Africa, wrapping up a two-day thematic debate on the topic that coincided with the fiftieth anniversary of the Organization of African Unity, the predecessor to the African Union.

With the adoption of the text — the centrepiece of the two-day debate — the Assembly paid special tribute to the African Union’s founding fathers and urged the international community, including the United Nations, to effectively address the twin imperatives of security and development in Africa in a comprehensive manner, reaffirming the inextricable link between peace, security, development and human rights.

By other terms, it reiterated the need to strengthen African capacity for preventive diplomacy across the conflict spectrum and as part of broader, nationally driven strategies to promote peace. In that context, it welcomed the Union’s positive contribution towards the peaceful settlement of conflicts, especially through its mediation and peacekeeping initiatives. It pledged to help make the African Peace and Security Architecture fully operational, including the Panel of the Wise and the Post-Conflict Reconstruction and Development Framework.

On the economic front, the Assembly commended Africa’s recent performance, which had sparked “renewed optimism” about the continent’s prospects. But, Africa’s special needs had yet to be effectively addressed to achieve the Millennium Development Goals. As such, it reiterated support for the transformation of African economies for the post-2015 agenda, pledging to maintain Africa among its highest priorities. It also promised to support the consolidation of democracy and good governance, reiterating its belief in a prosperous future in which the values of dignity and peace were fully enshrined.

Following the adoption of the declaration, some delegates — while applauding its objectives — expressed concern about the process with which it had been negotiated, saying that they would have liked to have been consulted. The United States’ delegate objected to certain language — or the absence of it — in the areas of accountability, rule of law and transitional justice, which were crucial ingredients for such a declaration. Further, the issue of Security Council reform should have been left in the hands of the intergovernmental negotiation.

Along similar lines, the representative of the European Union said the text did not include the role of women in conflict resolution and prevention, the responsibility to protect, or the role of the International Criminal Court, among others. The absence of that language should not be used as a precedent.

Throughout the day, delegates stressed that peaceful conflict resolution was vital to Africa’s success, agreeing that cooperation between the United Nations and the African Union should grow and diversify. On that point, several representatives used the opportunity to argue for Security Council reform, underscoring that, while most issues on its agenda related to Africa, only one fifth of its members were from the continent. Zimbabwe’s delegate noted a growing call for more cooperation between the Security Council and the Peace and Security Council of the African Union, explaining that the Security Council’s capacities for achieving peaceful dispute settlement were “grossly underutilized”.

Some speakers, including the representative of the United Republic of Tanzania, stressed that conflict resolution required proper diagnoses of the causes. The Peace and Security Council had identified poverty, poor governance and deep-rooted ethnic divisions among them. Prevention efforts needed to encompass elements of sustainable development if they were to be meaningful.

With that in mind, several speakers underlined the close links among peace, security and sustainable development. “There will be no peace without development and there will be no development without peace,” said Burundi’s delegate, voicing the views of many and expressing gratitude for the solidarity that had helped his country emerge from four decades of conflict. Others — especially from Europe — underscored the need for African countries to take the lead in finding solutions, favouring policies that supported “African leadership and African solutions to African problems”.

Taking up that call, the representative of Côte d’Ivoire, on behalf of the Economic Community of West African States (ECOWAS), said West Africa had taken charge of efforts towards peace, security and development, and today, acted both diplomatically and militarily. ECOWAS had a protocol in place for a prevention mechanism, and another for good governance. Africa suffered from a lack of good governance, weak national institutions and social inequality. It was crucial that African States took ownership of the resolution and prevention of conflict.

Italy’s representative pointed out that the African Union had developed a toolbox for conflict management and crisis response, through the Africa Peace and Security Architecture, and enhanced capacity to deploy peace operations. Norway’s delegate added that several African countries were providing assistance for security sector reform, which promoted inter-African collaboration and African perspectives.

The representative of South Sudan, the United Nations’ newest member, reminded that most, if not all, countries experiencing genocide, war crimes and ethnic cleansing suffered from acute crises of national identity, driven in part by different levels of success enjoyed by different groups. Promoting equality and managing diversity was a major challenge for achieving the “African renaissance”.

Also speaking today in the debate were the representatives of Guyana (on behalf of Caribbean Community), Chile, China, Spain, Indonesia, Brazil, Turkey, Japan, Australia, India, Netherlands, United States, Qatar, Russian Federation, Pakistan, Germany, Cuba, Tunisia, Rwanda, Kenya, Argentina, Malaysia and Benin.

A representative of the European Union also delivered remarks.

Explaining their position after action were the representatives of Liechtenstein and Norway.

In other business today, the Assembly was informed that Peru was appointed a member of the Committee on Conferences for a term of office beginning on 26 April 2013 and ending on 31 December 2015.

Background

The General Assembly met today to take action on the political declaration on the peaceful resolution of conflicts in Africa (document A/67/L.61), and conclude its thematic debate. The appointment of members of the Committee on Conferences was also on the agenda.

Introduction of Declaration

The representative of the Democratic Republic of the Congo introduced the draft resolution on behalf of the African Group. He stressed the significance of the expected adoption of the text as this year marked the fiftieth anniversary of the establishment of the Organization of African Unity (OAU), which later became the African Union.

The text was then adopted without a vote.

In the explanation of position, the delegate of the United States welcomed the adoption and commended the African Union’s positive contributions, but expressed concerns about the process in which the text had been negotiated towards the adoption. He had wanted to be consulted. He also expressed concerns about some languages or the absence of some languages in the areas of accountability, the rule of law and transitional justice, which were important priorities to his delegation and crucial ingredients for such a text. As for elements concerning Security Council reform, further consultation had been needed and the matter should be left with the hands of the intergovernmental negotiation.

The representative of the European Union said the bloc had provided support both in funding and capacity-building for Africa and welcomed the adoption of the text. But, it felt it should have been given an opportunity for consultation and the procedures used were not in line with General Assembly practices. The text did not include the role of women in conflict resolution and prevention, the responsibility to protect and the role of the International Criminal Court, among others. The absence of that language should not be used as a precedent. The European Union supported the greater representation of Africa in the Security Council, but the intergovernmental negotiation had been established to discuss such matters. His delegation’s position on the Security Council reform had been clearly expressed and remained unchanged in that forum.

The representative of Liechtenstein, speaking also for Switzerland, felt it appropriate to adopt the text, but it should have been done in consultation with other members of the General Assembly.

Norway’s speaker said his delegation supported the adoption, but had hoped to contribute to the elaboration of the language, especially the important role of women in resolving conflicts and the need for fighting impunity.

Statements

GEORGE TALBOT (Guyana), speaking on behalf of Caribbean Community (CARICOM), paid tribute to the founding of the OAU, which was a “milestone achievement” in the pursuit of peace and development in Africa. The organization’s founders had laid strong foundations for the progressive integration and transformation of Africa as a continent at peace with and within itself. Progress was not without perils or setbacks, he said, noting that the genocide in Rwanda was “tragically emblematic of the unspeakable human trauma” that conflict had engendered there. Resolution of conflicts remained vital to Africa’s ultimate success, as so too would building durable peace and sustainable development. The United Nations would remain critically important in support of that, and the international community had an important role to play in supporting development of peace and security architecture, as well security operations when required. Countries emerging from conflict also needed assistance to avert a return to chaos.

CARICOM would support Africa’s endeavours to overcome its challenges, he said, adding that the bonds uniting the two regions had been “forged on the anvil of shared experience and common struggle; against slavery, against apartheid”. CARICOM-African cooperation and exchange assumed multiple dimensions, including in human resource development, energy and agriculture, as well as more informal cooperation. Africa deserved an enhanced and permanent place in a reformed Security Council and a strengthened role in global governance, he added.

TUVAKO NATHANIEL MANONGI (United Republic of Tanzania) associated himself with the South African Development Community (SADC), paying tribute the Organization of African Unity’s founders who had put the peaceful resolution of conflicts at the core of the body’s vision. That vision remained in the African Union, which had transformed into a bigger force for anticipating, preventing and responding to conflicts. The African Peace and Security Architecture, comprising the Peace and Security Council, the African Standby Force, the Continental Early Warning System and the Panel of the Wise, was contributing to peaceful conflict resolution on the continent, as were sub-regional mechanisms like the Pact on Security, Stability and Development in the Great Lakes Region of Africa and the SADC Organ on Politics, Defence and Security, to which United Republic of Tanzania belonged.

Successful resolution of conflicts required proper diagnoses of their causes, he said, noting that the United Nations Security Council and the Peace and Security Council of the African Union had both recently addressed the matter. The Peace and Security Council of the African Union had identified poverty, poor governance and deep-rooted ethnic divisions among the causes, with border disputes reflecting the colonial legacy and the illegal circulation of conventional arms, also important. Outlining several other causes of conflict, he stressed his firm belief in the pacific settlement of disputes and said that conflict prevention efforts needed to encompass elements of sustainable development if they were to be meaningful. The partnership between the United Nations and the African Union needed strengthening, because their partnerships in various engagements around the continent had been “truly invaluable and commendable”. He also called for rededication to upholding the principles enshrined in the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations.

THOMAS MAYR-HARTING (European Union) said the European Union was at the forefront of international support for the African security agenda, including the African Peace Facility. The European Union provided predictable funding for peace support and capacity-building, and was moving ahead with a strategic approach defined by African ownership, solidarity and partnership. Concrete efforts on conflict resolution included efforts to tackle Al-Shabaab in Somalia and the provision of €412 million between 2008 and 2013. The European Union was also at the forefront of efforts to tackle piracy in the region. It was vital to avoid complacency and a military approach alone would not solve the problem. Development efforts were also needed.

Thanks to France, Chad and others, the haven for terrorists and criminal groups that had existed in Mali and the Sahel had been tackled. The European Union was now involved with a military training mission and was providing assistance to the electoral process, including a possible observation mission. Two-hundred and fifty million euros in development aid would be given and a high-level conference on the subject would take place in mid-May. He looked forward to implementation of the Security Council resolution on Mali and called for an approach going forward that accounted for the whole Sahel region. The European Union was also working with partners on stabilization in Guinea-Bissau and in the wider African region. He saw a unique opportunity to address the Democratic Republic of the Congo’s problems comprehensively and the European Union was putting together a strategy, in partnership with the country, on security sector reform and development. He expressed support for the principle of the responsibility to protect, calling for States to assist those States in need with capacity-building.

YOUSSOUFOU BAMBA (C ôte d’Ivoire), speaking on behalf of the Economic Community of West African States (ECOWAS), said his delegation had fully subscribed to a statement made by the president of the African Union, noting that next month marked the anniversary of the foundation of the Union. Resolving conflict and restoring peace and stability was a top priority for Africa. It was unfortunate that currently, more than 60 per cent of the Security Council agenda was devoted to African disputes. Africa suffered from lack of good governance, weak national institutions, human rights violations, bad management of resources and social inequality, among other things. It also suffered from border issues stemming from colonization and from the spread of small and light weapons and easy access to such arms.

He stressed the importance of the need to act together, saying it was crucial that African States took ownership of the resolution and prevention of conflict. West Africa had taken charge of efforts towards peace and security and development in the subregion, he said, stressing the importance of a subregional mechanism for preventive diplomacy. ECOWAS, today, acted both diplomatically and militarily. It had a protocol in place for a prevention mechanism, as well as a protocol for good governance. Additional protocols had been put in place, including those on the separation of powers between executive and judiciary branches and a ban on an unconstitutional change of regime. ECOWAS also welcomed the Arms Trade Treaty adopted earlier this month.

CHITSAKA CHIPAZIWA ( Zimbabwe) aligned himself with the statements made by representatives of the African family. African countries needed to take primary responsibility for what happened on the continent, particularly on challenges such as peace and security, achievement of the Millennium Development Goals, climate change and health. He hoped the African Union would contribute to addressing the problems. The United Nations provided plenty of support on peace and security matters and consultation between the two should grow and be diversified. There was a growing call for a strengthening of cooperation between the Security Council and the African Union’s Peace and Security Council, though he acknowledged that the Security Council remained the primary organ for tackling peace and security. In order to be effective, the Council needed to be judged by the majority of States as representative of all interests and currently its capacities in achieving peaceful settlements of disputes were “grossly underutilized”. Although most Security Council issues related to Africa, only a fifth of its membership came from Africa and reform was needed, with two permanent and two more non-permanent needed for the continent.

HERMÉNÉGILDE NIYONZIMA Burundi said that conflict and war meant different things to different countries. His country had lived for four decades in conflict, with many causalities, massive refugee flows, internally displaced persons and other suffering. It had not been until 2005 that the country had returned to peace and security. His delegation appreciated the solidarity shown to his nation by the international community. Burundi had contributed troops to various conflict zones, including Côte d’Ivoire, Haiti and now Mali. His nation, due to its bitter experiences, had learned lessons and could offer not only troops, but also wisdom. He agreed with a statement made a week ago by the Deputy Secretary-General at a retreat: “There will be no peace without development and there will be no development without peace.”

OCTAVIO ERRÁZURIZ ( Chile) said African States had demonstrated their willingness to work towards maintaining a culture based on the peaceful resolution of disputes, especially through the African Union. He said that important steps had been taken since the mid-1990s to encourage and strengthen democracy in Africa. The African Union’s role had been decisive and its democratic Charter was a major step forward, helping to resolve conflicts and to prevent breaches of democracy. The Charter was a powerful dissuasion to anyone wishing to strike down democracy. He recognized the willingness of African States to resolve conflicts through the United Nations system and their use of international courts. The use of legal means was of great importance. He said Chapter VIII cooperation with the United Nations was fundamental and the African Union’s cooperation was laudable. Support to strengthen future efforts was needed. He added that economic progress needed to match developments in peace and security and reiterated his support for Africa to be part of reformed Security Council as both a permanent and non-permanent member. Chile was an active participant in interregional cooperation with Africa and three new embassies would soon be opened on the continent.

LI BAODONG ( China) recognized that Africa was a continent of dynamism and hope, whose economies were fast growing. While welcoming Africa’s own determination to resolve conflict through peaceful means, she said that the situation remained unstable, with traditional and untraditional elements of instability intertwined. It was in the interest of other General Assembly Member States to achieve peace and security and development in Africa, which faced severe threats to stability, such as by transnational organized crime. It was vital to support ongoing efforts to resolve conflicts through dialogue, mediation and other peaceful means. Inclusive political processes were also vital. “Countries can not choose their neighbours, but they can choose how to deal with them,” she said. It was also essential to view the situation in Africa objectively and respect the sovereignty of each State. The international community should have faith in Africa’s intrinsic ability to resolve its problems in its own way. She also called for attention to root causes of conflict, such as ethnic disputes, poverty and underdevelopment, and expressed China’s intention to increase support for Africa, including funding and technical support.

FRANCIS DENG ( South Sudan) said that, although there was much to celebrate in the history of the OAU and the African Union, its promotion of appropriate norms had not met with implementation, particularly on matters like conflict resolution, management and prevention. That was of great concern to South Sudan, because of its own history. In particular, he believed the management — or mismanagement — of diversity needed addressing. The colonial State had helped to entrench ethnic, racial, cultural and linguistic divisions, he said, and those had come to the fore after independence. Diversity had been joined with competition over material resources, because conflict often stemmed from unequal access to power and resources.

He said that most, if not all, countries experiencing genocide, war crimes and ethnic cleansing suffered from acute crises of national identity driven by the implications of diversity, particularly the different levels of success enjoyed by different groups. Irreconcilable differences between groups over religion, race, ethnicity and language had led to South Sudan breaking away from Sudan. There had been no national framework, which had led to conflict. Promoting equality and managing diversity was a major challenge for managing the “African renaissance”.

FERNANDO ARIAS GONZÁLEZ (Spain), associating himself with the European Union, said it was crucial to address conflict in Africa, as events on the continent transcended the strictly regional sphere, and acquired a global dimension. Without security there could be no development, he emphasised, adding that good Government, security and development were more closely linked than ever. Commending the work of the African Union in promoting peace and stability, he expressed hope that the Union and the United Nations would continue to explore avenues for cooperation and promote synergies in the search of solutions to problems afflicting the continent. With regard to the Horn of Africa region, Spain had taken a lead role in the European Union in the area of piracy in the waters off the Somalia coast, conscious that the problems in the sea were a consequence of the lack of necessary security structures on land. He reiterated that peaceful solutions required continued work in the area of prevention and in the strengthening of mechanisms of preventive diplomacy and peacebuilding. Referring to the link between security and development, he said, all too often, violent conflicts were rooted in inequality and social exclusion. He also expressed concern that conflict might reverse successes achieved in reaching the global development goals.

DESRA PERCAYA ( Indonesia) said that, as a country that had itself traversed its path to democracy and stability, Indonesia could attest that it was essential to, first and foremost, ensure that the “voices of the people” were heard and responded to. It was fundamental that “pro-poor, pro-job, pro-growth and pro-environment” policies were delivered by capable national institutions, and that conflicts were settled peacefully. It was also critical that the African Union and African countries prepared better and were supported adequately in handling natural disasters, disease and people displacement. Further, support should also be increased to strengthen capacities. In that regard, concrete capacity-building projects for countries in Africa, upon their request and in keeping with their needs, under the United Nations civilian capacities initiative, could also offer a useful contribution. He was pleased with the initial discussions on such support undertaken in the Peacebuilding Commission. He also commended the progress on a number of the development goals in Africa and said it was vital to take into account the different needs of African countries when robustly pursuing poverty eradication and human development. Further, it was critical for African countries to have a greater voice and representation in various development frameworks.

REGINA MARIA CORDEIRO DUNLOP ( Brazil) said commitment to the peaceful resolution of disputes was enshrined in Brazil’s Constitution. She strongly defended the principle, because conflicts could not be solved by military means. Long-lasting peace would come only if the root causes of conflict were addressed. Any preventive diplomacy agenda required the promotion of social and economic development. She was encouraged by the high rates of economic growth in Africa during the last decade, which had led to unprecedented economic and social development. Nonetheless, conflicts in Africa remained almost 70 per cent of the Security Council’s agenda. Regional cooperation was of the utmost importance, particularly in the realm of conflict resolution and prevention. Joint efforts showed the possibilities, but United Nations-African Union cooperation had tended to be crisis driven, and there was a need to move beyond that reactive approach to address the roots of conflict before violence broke out. She recognized the role of the Peacebuilding Commission, which was an “essential tool in bridging the gap between security and development” and to addressing the root causes of conflict. She praised the Arms Trade Treaty as a historic step in preventing the illicit trade, although she wished it had contained a clear prohibition on transfers to unauthorized non-State actors.

MÅRTEN GRUNDITZ ( Sweden), associating himself with the European Union delegation, said that Sweden contributed to peace-support operations in a number of African countries. Sweden was one of the biggest donors of humanitarian aid to Africa, and a major donor to United Nations funds and programmes. It committed to promoting European Union policies that sought to enable and support “African leadership and African solutions to African problems”, while insisting that those solutions be consistent with the rule of law. He emphasized that during times of conflict, national Governments had the ultimate responsibility for protecting civilians, be it from conventional warfare, or other forms of violence. Conflict-related sexual violence could constitute a war crime, a crime against humanity and in the most extreme cases, an act of genocide. Hence, there must be no impunity, he said, recalling that the State had the primary responsibility to ensure accountability. In the same vein, representation was a “tricky” issue in conflict environments, where leaders had not necessarily been elected. He emphasized the importance of the participation of non-State actors and opposition groups. Furthermore, he said, it was essential to increase focus on how to involve women in decision-making.

Y. HALIT ÇEVIK ( Turkey) said that primary responsibility in preventing conflict lay with the countries themselves, which must take the lead in promoting reconciliation and ensuring good governance. In the same vein, regional and international efforts must play a crucial role in prevention of conflicts by promoting cooperation and integration, by developing and using preventive diplomacy mechanisms and through monitoring the commitments of Governments. The close cooperation between the United Nations and the African Union combined the global expertise of the United Nations with the regional perspective and experience of the African Union. He firmly believed that that cooperation must continue, through deepening, strengthening and enhancing in every direction. The best measure to avoid conflict was ensuring sustainable development and equitable distribution of wealth and resources. Underlining the importance of mediation as an important conflict prevention tool, he said he remained convinced that mediation could save Africa’s precious human and material resources by preventing and resolving conflicts. Finally, he added that Turkey remained a strategic partner of the African Union, and it was with that understanding that Turkey had increased the number of embassies in Africa from 12 to 34 in the last four years.

KAZUYOSHI UMEMOTO ( Japan) said that the relationship between the United Nations and the African Union had evolved most notably in the field of peace operations. From the United Nations taking over regional peace operations in countries such as Liberia, Sierra Leone and Burundi, to the dispatch of joint missions in Darfur and the United Nations logistical support provided to the African Union Mission in Somalia (AMISOM), new forms of cooperation had arisen over the last decades. As new crises unfolded in places such as Mali, Central African Republic and the Democratic Republic of the Congo, the need for the United Nations to forge stronger cooperation with regional and subregional organizations was greater than ever. Japan would co-organize the fifth Tokyo International Conference on African Development in Yohohama in June. Since its first conference in 1993, the Tokyo International Conference on African Development had evolved into an open, multilateral policy forum where discussions were made not only on economic, but also on social and institutional development, as well as peace and stability. Japan had just announced a contribution of approximately $550 million for peace and stability in Africa at a Conference ministerial preparatory meeting. This year marks the fiftieth anniversary of the foundation of the OAU, which coincided with the twentieth anniversary of the Tokyo International Conference on African Development.

PHILLIPA KING ( Australia) said she was confident about Africa’s future. Its States needed to take ownership of efforts to achieve peace and security, but they also needed help from outside. She identified socioeconomic development, buttressed by strong institutions, respect for human rights and security sector reform as important ways to prevent conflict. She welcomed the growth of inclusive and democratic Government on the continent, with 20 African States holding elections. She saw good progress in the management of natural resources and said Australia was providing assistance, including the staging of the Extractive Industries Transparency Initiative, which would be attended by many African partners. She stressed the critical role played by women and the importance of supporting women’s participation. Women were agents of change and their abilities needed harnessing. On United Nations-African Union cooperation, she saw that cooperation had been growing, but encouraged a more strategic and institutional relationship going forward.

RAGUTTAHALLI RAVINDRA ( India) addressed the issue of Chapter VIII cooperation between the United Nations and the African Union. The two bodies worked together on various projects, including the Early Warning System and the Standby Force. Other subregional organizations also played important and complementary roles in such efforts. He described the impact of such organizations in Somalia, where the African Union mission had put Somalia on a path to recovery, in Sudan, where the African Union was ensuring implementation of the Comprehensive Peace Agreement, and in Central African Republic, where it was overseeing adherence to the Libreville Agreement. Where goals were shared, cooperation had the best results, he said, calling on the United Nations to expand partnerships, working in unison not just where interests overlapped, but also to tackle areas of difference. The United Nations could achieve that better if its Security Council better reflected modern political realities, he said, calling for reform. He described several initiatives, including the India-Africa Forum Summit, which he said was guided by the visions and priorities of India’s African partners, adding that trade agreements had opened the Indian market up to African countries. In addition, India’s commitment to peace and security in Africa was show by the many Indian peacekeepers that were on missions in Africa.

HERMAN SCHAPER ( Netherlands) stressed the importance of the responsibility to protect, a concept introduced in 2005, and the linkage between that responsibility and the peaceful resolution of conflict under discussion today. For peaceful settlements of disputes, he drew attention to two specific institutions — the International Court of Justice and the Permanent Court of Arbitration — and said those instruments should be used more frequently. Settling conflict peacefully was a top priority and Africa should take the initiative through the development of its own peace and security architecture, as it had done in successfully stabilizing Somalia. For its part, the Netherlands provided monetary assistance of €3 million and other contributions to that end, including for the Early Warning System and a Standby Force. It also dispatched troops to peacekeeping operations in Africa. Finally, he stressed the need to address root causes and the nexus between peace and security and development. The post-2015 development framework must reflect that nexus, he said, pointing out that the Millennium Development Goals had not been achieved in fragile States. His delegation welcomed the acknowledgement of that issue in the political declaration adopted today.

CESARE MARIA RAGAGLINI ( Italy) said that security and development were inextricably linked. Building on that, the African Union had been engaged in fostering the collective defence, security and stability of its members, and the improvement of the socioeconomic conditions of the African people. Thanks to the continued support of the international community, the African Union had developed a toolbox for conflict management and crisis response, through the Africa Peace and Security architecture, and enhanced its capacity to deploy peace operations. In the same vein, challenges persisted, including the need for adequate resources, civilian capabilities and expertise, political will to prevent conflicts and disputes, and better coordination of international efforts. Further, he pointed out that the Sahel crisis had shown that the military influence on political life needed to be reduced, so that civilian authorities could assume sole responsibility. Greater focus should be placed on strengthening national institutions, promoting human rights, eradicating poverty, and fostering equitable development. In full respect for the principle of national and African ownership, Italy provided assistance and support to its African partners in the areas of debt cancellation, empowerment of women, the fight against HIV/AIDS, and rural development, among others, he said.

JEFFREY DELAURENTIS ( United States) saw a significant and encouraging decrease in armed conflict in Africa, though he was concerned about the changing nature of crises. He stressed the importance of national ownership of conflict prevention efforts and of capacity-building, noting that he was encouraged by Africa’s institution building. He looked to the United Nations Office to the African Union to continue with its efforts to address conflicts, as it had in Somalia and Mali, and to help promote capacity-building. He called on the United Nations to address “the whole arc of conflict prevention”, focusing on institutional development to engender progress beyond conflict. Tangible progress towards long-term security and development would show people that peace was possible. The Peacebuilding Commission would be vital in that regard and it should be shaped by its work in Africa. He called on the United Nations to work on preventing atrocities through early warning and the development of a range of options for dealing with them when they arose. He praised the ability of transitional justice to heal wounds, as part of a process of reconciliation, and underlined the importance of women in framing peace processes and building future stability. Women’s participation demonstrated to societies that institutions were representative and able to meet the needs of the population.

YOUSEF SULTAN LARAM ( Qatar) highlighted the role undertaken by the African Union and other regional organizations in the peaceful settlement of disputes. He also joined many other delegates in noting the need to strengthen partnerships and the need to address root causes. “Our efforts are guided by the resolutions of the General Assembly and the Security Council, as well as this high-level debate,” he said. Having faith in strategic partnerships, Qatar had made contributions at all levels. Particular attention was needed for States that suffered from internal and inter-State conflicts. The General Assembly should consider the role of mediation in the context of the peaceful resolution of conflict. For its part, Qatar had contributed to the so-called Doha negotiation track to resolve disputes between Sudan and the Justice and Equality Movement. Qatar had also played a mediating role in border disputes between Eritrea and Djibouti and, as a follow-up, deployed its troops in the border areas.

PETR ILIICHEV (Russian Federation), noting the upcoming fiftieth anniversary of the OAU, and its successor, the African Union, and the successes those organizations had had in building politically mature, independent States on democratic paths, said that the continent remained vulnerable to crises. Preventing and regulating conflicts should use all available tools. Equally important was overcoming the chronic political, social and humanitarian problems at the root of conflict. They often led to such cross-border challenges as international terrorism, organized crime, an illegal arms trade and illegal exploitation of natural resources. Success was dependent upon coordinated efforts for sustainable development, for which NEPAD played such an important role. The African Union Peace and Security Council and other continent-wide and regional initiatives played a central role. Support for regional and subregional preventive diplomacy was critical to the process. He expressed satisfaction with the development of the relationship between the United Nations and the African Union.

MASOOD KHAN ( Pakistan) said that, despite strong and positive economic trend lines, huge problems persisted with new violent flare-ups in Mali, Central African Republic and the Democratic Republic of the Congo. In addition to traditional sources of conflict, there was a rise of new threats, such as terrorism, drug and weapons trafficking and piracy. Addressing those issues required greater coherence in international and regional efforts and, in particular, for the United Nations to adopt an active approach designed to create peace in Africa through a coherent strategy. More specifically, he said, the United Nations should focus on institution-building; strengthening the African Union’s capacity for conflict prevention; creating economic opportunities for young people; addressing the challenges of illegal exploitation of natural resources; and ensuring that peace agreements were adhered to. He believed that NEPAD provided an overarching vision and policy framework for accelerating economic cooperation and integration among African countries. Finally, he said that Pakistani peacekeepers had contributed extensively to peacekeeping missions in Africa, and that today, Pakistan had some 8,000-plus troops deployed on the continent.

PETER SILBERBERG ( Germany) noted that Africa’s capacity for peaceful conflict resolution had clearly been enhanced. Germany would remain a strong partner for Africa in its quest for peace and was supporting development of Africa’s peace and security architecture, both politically and as one of the largest bilateral donors. Germany had contributed €90 million in recent years and had financed construction of the African Union’s Peace and Security Council in Addis Ababa. That project would be completed in 2013 and would enhance the organization’s work. Economic development, social and gender equality, human rights and good governance were essential to peaceful progress, as were other cross-cutting issues, and better coordination was needed in order to ensure continued progress. Such progress included a clear decrease in violence and a growth in democracy. Africa was defining its own solutions to its problems and was taking responsibility for implementing them. Support from the international community needed to continue, however. He fully supported Security Council expansion, including with permanent seats for African States, and would continue pushing for progress on the issue, within the framework of intergovernmental negotiations and beyond.

OSCAR LEÓN GONZÁLEZ ( Cuba) noted how the descendents of African slaves had contributed to the development of his country and said it had always been Cuba’s policy to provide Africa with firm support.. It was an unfortunate fact that decades ago, Africa had more forests and less debts, and the situation was deteriorating. The continent was a forgotten region of the world. Root causes must be addressed, he said, citing poverty, hunger, unemployment and social inequality. With more than 60 per cent of the Security Council agenda focused on African conflicts, the United Nations had not done its job fully, due to some Member States, namely the most powerful nations. Support for Africa had been a centre of Cuba’s foreign policy. More than 40,000 African students had graduated from Cuban institutions. Borrowing the words of Nelson Mandela, he said “we should be the master of our own destiny”.

GEIR PEDERSEN ( Norway) said that, despite hopeful signs, Africa faced fundamental challenges, particularly following the alarming developments in Mali, Democratic Republic of the Congo and the Central African Republic. On the continent, fragility and insecurity were nurtured by transnational organized crime, piracy and terrorism, he said. Despite solid economic growth in many parts of Africa, most of the countries were highly vulnerable to external shocks, the effects of climate change and environmental degradation. Therefore, the establishment of an effective, professional and accountable security sector was a cornerstone of peace and sustainable development. The bulk of the international community’s assistance in security sector reform took place in, and was directed to, countries in Africa. At the same time, the good news was that a number of African countries were becoming important providers of such assistance, promoting intra-African collaboration and African perspectives. Turning to the gender dimension, he said empowering women through education and political participation was crucial. “ Africa cannot advance without fully empowering its women,” he emphasized. Many African nations were at a crossroads, he said, expressing concern that important achievements could be washed away by a relapse into old conflicts, or the emergence of new ones.

RIADH BEN SLIMAN ( Tunisia) described the “considerable contribution” made by the African Union in guiding and coordinating efforts to ensure peace and development in Africa. The African Union and its subregional organizations were in a good position to provide collective security, because they were based in African realities and knew and grasped best the underlying elements of African conflicts. They were closest to the conflicts and, therefore, best placed to provide the “African solution to African problems”. The African Union began establishing its peace and security architecture in 1993 in Cairo and now had a complete architecture for the full range of problems that the continent would face, including the Early Warning System, the Panel of the Wise and the Standby Force, which operated under the Peace and Security Council. Africa was at the forefront of progress in Somalia, with the African Union and Somali forces tackling Al-Shabaab, and had helped to maintain the peace agreement between Sudan and South Sudan. Its mediation efforts were strengthening and had resulted in the Peace, Security and Cooperation Framework for the Democratic Republic of the Congo and the Region, signed in February. Innovation was responsible for the active, complementary and innovative partnership between the African Union and the United Nations and he hoped for greater consistency and common vision between the two in the future.

JEANNE D’ARC BYAJE (Rwanda) said that Rwanda’s Minister for Foreign Affairs and Cooperation recently chaired a Security Council meeting where he identified several causes of conflict, including the legacy of colonial rule, problems of nationality and identity, lack of democracy and rule of law, and exclusion of certain groups based on gender, ethnicity, religion or region, as well as several others. The roots of conflict were also the roots of relapse into conflict and efforts at peaceful resolution had to address those issues. Governance, democracy and human rights became central to the African Union’s agenda when it replaced the OAU, and processes like the African Peer Review Mechanism promoted governance as a conflict prevention tool. The African Union’s Peace and Security Architecture and its associated instruments was another milestone.

Africans across the continent had repeatedly shown their capacity to work together in reducing and preventing conflicts, she said, while acknowledging that more work remained to be done. Nonetheless, the best initiatives for conflict prevention and post-conflict reconstruction were emerging from Africa and the United Nations “would do well to embrace them.” She pointed to targeted regional approaches that allowed issues like artificial boundaries and the related issue of nationality and identity to be tackled better than they would be on a national level. Collaboration between the United Nations and the African Union and its subregional organizations was of the utmost importance. It was the especially important that the Security Council supported regional peace initiatives, instead of taking decisions that might undermine them. Justice and reconciliation was of great relevance to conflict prevention and resolution in Africa. Rwanda had important experience, having embraced a home-grown system of reconciliatory justice, known as “gacaca”, which had handled about 2 million cases over 10 years. She looked forward to sharing the unique experience and underlined her support for the African Court of Justice and Human Rights.

KOKI MULI GRIGNON ( Kenya) said that the United Nations and the African Union relationship called for a critical assessment, if the two organizations were to consolidate their constructive engagement and cooperation. The last few years had seen the resolution of many long-drawn conflicts in the African continent, from the pacification and improving the security situation in Somalia and the Democratic Republic of the Congo respectively, to the recent signing of a peace pact between Sudan and South Sudan. Those achievements in which the United Nations and the African Union played a pivotal role, she said, would not have been possible were it not for the enhanced strategic cooperation between the two multilateral organizations. In the same vein, it was worth noting that to achieve sustainable stability in conflict areas, more emphasis should be geared towards drafting of clear and achievable mandates, provision of required human resources, and logistical and financial support to field missions.

Based on Kenya’s experience in peaceful settlement of disputes, conflict prevention and resolution, she believed that effective mediation was the cornerstone of sustainable dispute settlement. In that regard, capacity-building and national ownership was cardinal in the effort to strengthen the role of mediation. In order to “stem the recurring tide” of conflict in the Horn of Africa and the Great Lakes Region, she said, the role of Member States, regional and subregional organizations must be fully recognized and supported, especially in terms of capacity-building. She went on to emphasize that much more needed to be done to strengthen negotiating capacities of various stakeholders in peace settlements and adapt mediation processes to local cultures and norms, in order to ensure national ownership of the peace and peacebuilding architecture.

MATEO ESTREME ( Argentina) said it was important to recognize that the main responsibility to peacefully resolve conflict fell on States. But, support must be provided by the international community and the United Nations to complement national efforts. Underscoring the need to tackle the root causes, he said that the legacy of colonialism had led to divisions on the continent. Conflict prevention was also vital, and in that regard, the fight against impunity and the important roles of the special tribunal courts and the International Court of Justice must be highlighted. The International Criminal Court was a remarkable achievement of multilateralism. One billion people were going hungry worldwide and Africa was the only region where the number of those in hunger had increased, from 175 million to 229 million, accounting for nearly one fourth of the total. Food production and duty-free trade were essential to address those challenges. Noting that the world was facing the greatest economic crisis since the Great Depression, he called on such international organizations as the World Trade Organization (WTO), International Monetary Fund (IMF) and World Bank to play greater roles and focus seriously on resolving the issue.

SAIFUL AZAM ABDULLAH ( Malaysia) underlined the importance of Africa to Malaysia, because of its importance as a destination for trade and economic activity. In addition, Malaysia had supported United Nations peacekeeping operations on the continent, along with peacebuilding. Overcoming poverty, disease and famine was a daunting task, but many countries also had political turmoil to deal with. Despite nearly 100,000 peacekeepers being deployed, security challenges remained “a tall mountain to climb”. He upheld the Peacebuilding Commission’s importance in that regard, adding that sustained political will was needed in order for any progress to be made. As a country of the global South, Malaysia was engaged in cooperation with Africa as part of South-South cooperation. The focus fell on developing human capital and the private sector had also invested heavily there. Malaysia was the third largest global investor in Africa, investing $19.3 billion in the continent annually to boost jobs, technology transfer and economic development in the region. He also stressed the importance of the Millennium Development Goals, which were an important “milestone of the multilateral system”, and he looked forward to the Special Event in September that would follow up on the progress made so far.

JEAN-FRANCIS ZINSOU ( Benin) noted that many challenges had dogged African nations since their independence, and conflict resolution and prevention would make a positive contribution to their future development. In that context, useful recommendations had been made during the two days of debate, including the use of peaceful means mechanisms set up within the United Nations and within the African Union. He welcomed the recently adopted Arms Trade Treaty, as well as the Programme of Action for Illegal Trade of Small Arms and Light Weapons. It was vital to enhance the African Peace and Security Architecture. For a long time, conflict resolution had been based on military solutions, but new approaches, particularly mediation, must be used. Domestically, Benin was moving towards decentralization of power in order to achieve more balanced development. He called for greater involvement of subregional organizations. The African Peer Review was an effective tool to promote good governance. Emphasizing the need to enhance the Early Warning System, he said the mechanism had been tried out by ECOWAS. Also, cooperation between the United Nations Security Council and its counterpart in the African Union must be strengthened.

* *** *

[via United Nations Press Releases and Meetings Coverage]

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By admin on abril 02nd, 2013

Are the two Koreas Now at War?

Are the two Koreas Now at War?

In recent days the tensions on the Korean peninsula have risen. On 11 March, North Korea claimed that it had terminated the armistice agreement that ended the Korean War of the 1950s and on 30 March stated that:

“From this time on, the North-South relations will be entering the state of war and all issues raised between the North and the South will be handled accordingly. The long-standing situation of the Korean peninsula being neither at peace nor at war is finally over.” (see this BBC article for a useful timeline of recent events”

But does this statement mean that the two Koreas are back at war, despite the absence of hostilities at this point in time? And why might a state of war be important legally, if there are no hostilities? Also has North Korea validly terminated the armistice agreement and what would the legal implications of this be? We examined all of these issues here on EJIL:Talk! back in July 2009, in two posts written during a previous Korean crisis. One post “The Korean War has Resumed !! (Or so we are told)” was written by me. The other – Has North Korea Terminated the Korean Armistice Agreemennt? - was by my former student, Seunghyun Sally Nam, who was, at the time of writing, an official in the Korean Peninsula Peace Regime Division at the South Korean Ministry of Foreign Affairs (but writing in her personal capacity). The issues we covered then are perhaps more relevant now and I invite readers to revisit those posts. They are also in the “From the Archives” box to the right.

In my post, I examined whether or not the two Koreas (and allies like the United States) could resume belligerent rights like searching vessels at sea on the theory that there was an ongoing war. I stated then that

“The Geneva Conventions (1949) say that they apply in case of a declared war or any other armed conflict (Art. 2, para. 1). These instruments will therefore apply in case of a declared war even where no hostilities take place. Likewise, the Hague Conventions of 1907 (and the customary rules which result from them, in particular the right of visit, search and seizure of enemy merchant vessels) apply in time of war. The question that arises is whether the verbal announcement that an armistice is no longer regarded as binding is to be taken as a declaration of war, meaning that the law of armed conflict immediately becomes applicable. My own view is that this is not the case. There is a strong presumption that States do not intend to create a state of war. As McNair and Watts, The Legal Effects of War (4^th ed. 1966), p. 8 state: ‘So serious a matter as the existence of a state of war is not lightly to be implied.’

According to Greenwood: ‘Only if a statement that a country is at war was clearly intended to create a state of war, in the full legal sense, will it be taken to have that effect.’

As far as I can see, North Korea’s statement announcement does not even use the word ‘war’ nor is there any indication that they intend to create a state of war.”

But is the matter different now? Perhaps they are. Readers, any thoughts?

In Sally’s post, she noted that:

“most South Korean scholars argue [that based on two provisions in the armistice agreement that] . . . North Korea does not have a right to terminate on its own, but termination must be agreed by both sides. The North Koreans argue that their declaration ‘not to be bound’ is because the U.S. has repudiated the Armistice agreement. The view of South Korean scholars is that there has to be material breach on the U.N. Commanders side, based on article 60 of the Vienna Convention on the Law of Treaties, for North Korea to have sufficient grounds to terminate it, and there can be many controversies on this regarding the implementation of the agreement.”

She then noted that ” the U.N. Commander and the South Korean government [were] . . . both of the view that North Korea’s announcement cannot terminate the agreement and that the agreement is still effective.” Presumably, this is still the case in the current crises.

[via EJIL: Talk!EJIL: Talk!]

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By admin on marzo 25th, 2013

Q&A ¿Qué dejó el referéndum en Malvinas?

What did the referendum in Malvinas leave?

1.-Did the “referendum” alter the international situation of the Malvinas Islands?

No. The Malvinas Question continues being considered by the United Nations (UN) as a territory subject to decolonization. For the UN, the Malvinas Question continues being a ” special and particular case ” of decolonization because it supposes a dispute of sovereignty between two countries.

2.-Who took part in the referendum?

Only the British citizens who live in the islands. It encompasses an voting population of 1.650 persons, constituted only by those that possess British citizenship and seven years of residence in the islands. “It is a referendum organized by the British for the British, in order to say that the territory has to be a British one “, summarizes the Argentine Ambassador in London, Alicia Castro.

The composition of the population depends on the arrival of persons essentially from the metropolis though it is never possible to precise the number of inhabitants since the British censuses in the islands do not include at all the military personnel and their families that live in the British military bases established there.

3.-Who have the right to free determination under the international law?

Professor Marcelo Kohen supports the idea that International Law distinguishes three categories of human communities: peoples, minorities and autochthonous peoples. Only the first ones have a right of free external determination, that is to say, they can decide the fate of the territory in which they live. Unlike other cases in which the victims of the colonialism were subdued peoples, in the case of Malvinas the victim was a sovereign State in the dawn of its independence. The General Assembly of United Nations does not recognize the existence of the claimed “falklander people” with right of free determination.

4.-Why, in the Malvinas Question, the UN speaks about the “interests” of the islanders and not about their ”desires”?

Because the international community expressed in the maximum level of world diplomacy – the UN General Assembly-, interprets that the current population of the islands is British, but not the territory, because there is a sovereign dispute that recognizes two parts; Argentina and the United Kingdom of Great Britain.

It is not a question, then, of a people colonized with right to the self-determination but of a territory colonized out of the compulsive eviction of the population that was there and its legitimate authorities.

The implantation of a population brought in warships from Great Britain annuls the possibility of application of the Principle of Self-determination of the Peoples

5.- Why did the United Kingdom of Great Britain decide to promote the referendum?

Because its margin of resilience to the fulfillment of the resolutions of the international community has been dwarfed in the last years. Argentina was able to position back the Malvinas Question in the international agenda.

6.- Who do support the Argentine claim?

The diplomatic Argentine strategy – with an epicentre in United Nations for decades-, has

been reinforced recently during the Argentine Presidency of the influential Group of the 77 and China (G-77 and China). The UNASUR comes exhibiting a solidarity that goes beyond the mere expression of desires. Today it executes concrete measures, imposing legal restrictions in its ports to the deployment of activities that favor the illegal exploitation of resources in the waters of the South Atlantic.

Days before, the 54 countries of the African continent recognized in the ” Declaration of Malabo ” the legitimate rights of sovereignty of Argentina on the Malvinas Islands. This Declaration adds to the ones already signed from the Bolivarian Alliance for the Peoples of Our America (ALBA), the Summit of the South American Countries and Arabic Countries, the Group of Rio, the Community of Latinamerican and Caribbean States (CELAC), The Latin-American Summits, the Declarations of the Organization of the American States (OAS), the Latin-American Association of Integration (ALADI), the System of Central American Integration (SICA), The Ministerial Summit of the Group of the 77 and China (G-77 and China), between others.

It will turn out increasingly difficult for London to sustain its denial to negotiate.

[via Embajada Abierta | Embajada Abierta]

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By admin on marzo 08th, 2013

Argentinians dismiss ‘illegal’ Falklands referendum

Argentinians dismiss ‘illegal’ Falklands referendum

The claim on the islands known in Buenos Aires as the Malvinas is one of few points of general agreement in a divided country

Every Tuesday, a group of Argentinian veterans of the Falklands war gather on the outskirts of Buenos Aires to cook up a barbecue, share memories and plan new campaigns. For them, of course, the islands are the Malvinas, not the Falklands, Port Stanley is Port Argentina, and sovereignty belongs to the government in Buenos Aires, not the one in London.

Now middle-aged, they plan media and education campaigns, arrange interviews, lobby the government and consider how to counter any move that seems designed to strengthen British rule of the islands. Their goals are twofold: to regain the islands they were repelled from in 1982 and to avoid a repeat of a war that is now seen here as a terrible mistake.

So it is with vehemence rather than violence that they dismiss the Falklands’ first referendum on sovereignty, due to start on Sunday, which is expected to reinforce at the ballot box what was determined by guns and tanks in 1982: UK rule over the south Atlantic islands and the sea lanes around them.

“This referendum won’t have any impact on international negotiations. The people on the island have no right to vote on self-determination,” said Ernesto Alonso, head of the 250-member Centre for Ex-Combatants in the Malvinas – one of several veterans’ organisations.

Alonso was 19 when he was conscripted into the 7th Infantry, which suffered heavy casualties, among them his school friends and neighbours. Now he works for the government as head of the commission that represents more than 20,000 former combatants. He is delighted that the Argentinian president, Cristina Fernández de Kirchner, has pushed the issue up the agenda in recent years. “For the first time, the government is saying what we have been saying for years,” he said.

Since the 30th anniversary of the war last year, tensions have increased. Argentina has ramped up the diplomatic noise at the UN and regional bodies, placed full-page advertisements in British newspapers and – most controversially – restricted access to the islands. It has persuaded South American neighbours to turn away Falklands-flagged ships, curtailed overflights and imposed sanctions on companies that exploit the resources of the islands.

Britain has also lifted its rhetoric and intensified oil exploration. It insists no deal is possible without the inclusion of the islanders as a third party in negotiations. This strategy will be underlined by the forthcoming vote. On 10 and 11 March, the 1,500 eligible voters in Port Stanley and other communities will vote on the following question: “Do you wish the Falkland Islands to retain their current political status as an overseas territory of the United Kingdom?”

Alonso believes the islanders are in no position to decide the fate of their territory. He says they have limited information and their communications are controlled by the army base. “They live in a dream, in a Disneyland fantasy. In actuality, they are being manipulated by politicians,” he said. While his activism and rhetoric are strong, his views are mainstream. That is evident from the signs at the international airport and the graffiti on the walls, where the message is the same: the Malvinas belong to Argentina. The local equivalent of the Sun still refers to British people as “pirates”. Opinions polls suggest the Falklands is one of the few issues in this politically polarised country on which there is a strong degree of unanimity.

A recent survey by the consultancy Equippe, which is close to the government, found that 75.1% of the public supported the government’s strategy to impose trade restrictions on companies that exploit resources on the islands. Last year, another poll to mark the 30th anniversary of the war indicated that 89% of Argentines supported the sovereignty claims of Buenos Aires.

Britain claims the Fernández government – which has declared the referendum “illegal” – has pumped up the issue to divert attention from domestic woes, including 25% inflation and rising crime.

Guillermo Carmona, a ruling party legislator and president of the commission on foreign affairs, says that if anyone is doing that, it is the British prime minister, because Europe’s problems and British austerity are harder to swallow than any of the challenges faced by Argentina.

The escalation in nationalistic noise coinciding with difficult economic times has drawn comparisons to the early 1980s. But what is happening today is different in that both countries have largely adopted democratic and peaceful strategies – international lobbying and a referendum rather than Exocets and torpedoes – to bolster their positions.

Argentina’s moves to isolate the islands are more aggressive. They are a sign, perhaps, that the stakes have been raised by the discovery of extensive oil deposits near the Falklands. The full extent of the deposits is not yet clear, but the enormous potential is evident from the $1bn (£670m) of investment that has been attracted.For many Argentinians, this explains the rise in tensions and the timing of the referendum.

“The real interest of the UK is connected to petroleum,” said Edgardo Esteban, who was a 19-year-old conscript when he fought in the battle of Port Stanley. Today, he is a film-maker, who has made a reflective documentary about his returns to the island as a journalist.

He has friends there now and remembers a time before the war when relations were much better and the islanders would come to Argentina for education, medical treatment and to watch football matches. The war changed that, but it also transformed Argentina by ending the rule of the country’s murderous military junta. Esteban is frustrated that Britain and the islanders do not recognise this. “They act as if they are still talking to a dictatorship, but now we are a democracy,” he said “What the dictatorship did was wrong. Now the peaceful way is right. But we strongly believe the Malvinas are ours.”

Education has changed: students educated in the 1990s rarely got a chance to discuss the dictatorship or the failure of the invasion.

Those at school since the Kirchners took power have been positively encouraged to broach these issues, which have risen to prominence since the anniversary last year.

“Our textbooks told us that the war in 1982 was a political ploy designed to manipulate people into supporting the dictatorship and to cover up the disappearances,” said Lautaro Pirich, an 18-year-old. “To get the islands back we need to talk, not fight.”

Almost everyone now agrees the 1982 war was a calamitous mistake, not just because the invasion was repelled, but because it was initiated by a dictatorship. General Leopoldo Galtieri fell from power as a result of the defeat. This is seen as the silver lining to a dark period in the country’s history – an inversion of the view taken by many on the British left who lament that Thatcher’s victory kept her in power for a decade. “Our democracy was born in the Malvinas when Port Stanley fell, though that is not the history that Argentinians like to hear,” said Ricardo Kirschbaum, executive editor of Clarín, the country’s biggest newspaper, and author of a book on the 1982 conflict. “Argentina made a very big mistake in 82, but it was good that it ended the dictatorship.”

Kirschbaum – one of the most prominent opponents of the current government – believes the referendum is a natural step towards the ultimate independence of the islands. In Argentina – and Britain – this is an unorthodox view, but he sees this as inevitable, given the failures of both sides to find a better arrangement that recognises the British character of the islanders and their geographical proximity to South America.

“This referendum won’t change opinion in Argentina, but it will change opinion in the world,” he said. “Argentina does not have a strategy. We need to think of a new approach, but with this government that is impossible.”

Other have questioned the official government line. “Is it correct to use the word ‘negotiate’ if we are not willing to consider giving?” asked the historian Federico Lorenz in an opinion piece this week. “Dare we think, at least as an intellectual exercise, that we may not be entirely right?”

Such views would have been impossible during the dictatorship. Locals say they were rarely expressed even 10 years ago. But even though there is a debate, the fundamental aims are the same as they have been for 30 years: to get back the islands and maintain peace.

“The referendum will change nothing,” said Alonso, the head of the veterans’ group. Asked if his group planned any response, he shook his head. “Next week, we’re not planning anything special. We’ll just have the usual barbecue.”

Poll position

Falklanders say the first sovereignty referendum in their history is a rebuttal to intensifying Argentinian harassment.

On 10 and 11 March, the 1,500 eligible voters among the 3,000 population will vote on the following question: “Do you wish the Falkland Islands to retain their current political status as an overseas territory of the United Kingdom?” People on the windswept South Atlantic islands will stage a rally on Sunday, the first day of voting.

Several expressed excitement ahead of what they see as an appeal to democratic nations for support and an expression of their determination to decide their future.

Rosie King, a fifth-generation islander who went through the war in 1982, said she expected 100% support for British rule. “I hope the outcome says to Argentina that although we are British subjects, we are Falkland Iislanders and we would like to be left as we are.”

According to Mike Summers, a sixth-generation islander and member of the legislative assembly: “Argentina has been aggressive and difficult, and tried hard to stifle the economy of the Falklands through denial of air flight rights, attempts to deter tourism vessels from calling here, bans on fishing businesses working here, and bans on support to hydrocarbons development.

“

“This has naturally caused islander sentiment to harden against the Argentinian government. It has taken us 180 years to de-colonise from the UK, we have no wish to be recolonised by Argentina.”

Long known for its sheep farming, the islands are set for an oil and gas boom. Petrochemical firms are said to have invested $1bn to exploit the offshore fossil fuels. The oil will not start to flow for four years, but it will be a huge windfall for the islands, where GDP per capita is already around £40,000.

The cost of living is also 20% higher than in Europe because of import costs that have been pushed higher by Argentina’s efforts to restrict port access in south America. As a result, a single banana costs about a pound.

The islanders expect further moves towards self determination, which they say is guaranteed by the constitution and the UN charter.

“We have developed our post-colonial relationship with the UK over several decades, and will continue to strengthen internal self government as the economy expands,” said Summers.

Jonathan Watts

[via World news and comment from the Guardian | guardian.co.uk]

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By admin on febrero 22nd, 2013

Scottish Independence: Political Rhetoric and Legal Realities

Scottish Independence: Political Rhetoric and Legal Realities

The recent publication of Professors Crawford and Boyle’s opinion on the international law aspects of Scottish independence is an event not because it says anything new – most commentators (including the present writer) come to the same conclusions – but because it puts the imprimatur of two highly distinguished international lawyers on the matter. On Scottish independence, Scotland would emerge as a new State, with the rump UK (England, Wales and Northern Ireland) continuing the legal personality of the UK. As regards membership of the European Union, this would mean that the rump UK would retain the UK’s membership, whilst Scotland would have to be admitted as a new member.

Nonetheless, although the opinion adds weight to the arguments advanced, it might be thought unlikely to end the controversy, given the political sensitivities involved. Already, nationalist voices have dismissed it as simply the views of two among many commentators, whom of both, moreover, were paid by the British government to provide the advice.

This would be, however, to privilege form over substance. In practice, the two sides have converged in agreeing that negotiations would be required for Scotland to become a Member of the European Union. Only a few days previously, the Scottish Government’s published a paper ‘Scotland’s Future: from the Referendum to Independence and a Written Constitution’. This makes much mention of the dissolution of Czechoslovakia into the Czech Republic and Slovakia (a misleading analogy, as Crawford and Boyle show) but in relation to European Union membership simply states that:

‘In addition to discussions with the UK, negotiations will be required in advance of independence with the European Union to agree the terms of an independent Scotland’s continuing membership. The Scottish Government believes that Scotland should continue to be a member of the EU… The economic, social and political interests of the EU will be best served by Scotland remaining in continuous membership. The UK and Scottish Governments, along with the EU institutions and member states, will therefore have a shared interest in working together to conclude these negotiations to transfer Scotland’s EU membership from membership as part of the UK to membership as an independent member state.’

The references to negotiations seems close to admitting that what is at stake is not continuing membership but admission (given that requiring negotiations has as a corollary that agreement is required successfully to conclude them), whilst the arguments put forward for Scotland staying within the EU are political rather than legal (which is not to say they are any worse for that). As the Crawford and Boyle themselves state: ‘the non-legal considerations that might govern any negotiated outcome… might be more important in practice [than the legal rules].’

One point made in ‘Scotland’s Future’, however, is important: the timing of the negotiations. This – and the questions of what (if anything) Scotland would have to concede as conditions of membership – are the real issues at stake.

There are good reasons why an independent Scotland should be ‘fast tracked’ into the EU. Scotland has already adopted the EU acquis and Scots presently enjoy the benefits of EU citizenship. Negotiations concluded before independence would also have the benefit (for the other Member States) of allowing a recalibration of the rump UK’s voting weight in the Council of Ministers and number of MEPs to take account of shrinkage from the date of independence.

Nothing in Article 49 TEU would seem to prevent such a procedure – providing all the existing Member States were to agree. This, however, may be the rub, at least according to recent comments made by the Spanish Foreign Minister (discussed here). One might doubt whether the Spanish Government would ‘go to the wire’ on the issue if the other Member States are united. However, this – or any other – uncertainty might be damaging to the prospects for a ‘yes’ vote in the forthcoming referendum, which is why the Scots National Party is likely to continue to insist, at least in its public statements, that EU membership would be automatic.

[via EJIL: Talk!EJIL: Talk!]

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By admin on febrero 14th, 2013

Boyle and Crawford on Scottish Independence

Boyle and Crawford on Scottish Independence

Last month, Joseph Weiler’s post on Catalonian independence and the European Union triggered a lively discussion here on EJIL!Talk (including Nico Krisch’s reply). Yesterday’s publication by the British government of a legal opinion by Alan Boyle of the University of Edinburgh and James Crawford of the University of Cambridge, entitled ‘Referendum on the Independence of Scotland: International Law Aspects’ has already received extensive news coverage (eg BBC, New York Times, Guardian, FT) and was labelled as ‘incredibly arrogant’ by the Scottish deputy first minister. In a riposte, the Scottish government accelerated publication of a report on the macroeconomic framework in case of Scotland’s independence. A committee composed of economists, including Nobel prize winners Joseph Stiglitz of Columbia University and Sir James Mirrlees of the University of Cambridge, suggested that if the Scottish people voted for independence in 2014, a formal currency union between UK and Scotland, with a 10 percent Scottish stake in the Bank of England, would be the most likely outcome. The currency that Scotland would use in the event of independence and Scottish membership in international organisations, most importantly the European Union, have been focal points of the discussion in the lead-up to the referendum.

In their legal advice, Alan Boyle and James Crawford take the view that the remainder of the UK would continue the legal personality of the UK, whereas Scotland would be a new state. As such, it would need to seek admission to international organisations and the European Union. Whereas Scotland would in their view need to apply to become a member of the Council of Europe, the European Convention on Human Rights would continue to apply to Scotland. However, they recognise that there is considerable uncertainty about the effect of Scottish independence on the rights under the EU treaties of UK citizens who would become Scottish nationals in the period (potentially drawn out) while Scotland negotiates its accession to the European Union. In Rottmann, the Court of Justice of the European Union took the view that EU citizenship, as a derivative add-on to the nationalities of member states, might significantly constrain the power of EU member states to strip their nationals of nationality where the result would be to render them stateless and losing their rights under the EU treaties.

Scotland would be the first case of state succession governed by complex a interplay of international and European Union law (in particular EU citizenship and fundamental rights). Which was the law deemed to apply to particular questions would be crucial factor in working out the legal implications. It seems clear that unilateral Scottish independence would be a legal nightmare, or legal bonanza for the lawyers, depending on how one looks at it. It would also leave important decisions about the future arrangements between Scotland, the UK and the European Union in the hands of potentially a multitude of different courts and tribunals that might reach inconsistent results. Should the Scottish people vote for independence, only independence prior to independence would avoid years of uncertainty and litigation. On this crucial point, the international lawyers and the economists agreed. Negotiations, with respect to currency arrangements and all of the complex legal issues raised by Scottish independence, would offer the only sensible way forward.

[via EJIL: Talk!EJIL: Talk!]

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By admin on febrero 04th, 2013

Incorporating UN General Assembly Declaratory Texts into Domestic Law?

Incorporating UN General Assembly Declaratory Texts into Domestic Law?

Last week in Canada, with federal MPs returning to Parliament amidst the continuation of countrywide protests by indigenous peoples, an opposition MP introduced a private member’s bill (Bill C-469) to require the Canadian government to ensure that all federal laws are consistent with the United Nations Declaration on the Rights of Indigenous Peoples (A/RES/61/295). I’ll state clearly at the outset that this isn’t the first such proposal of its kind, with two other private member’s bills with the same general intent of giving domestic legal effect to the Declaration having been introduced in June 2008 (Bill C-569) and February 2009 (Bill C-328), later reinstated in March 2010. But the discussion that has ensued with respect to enacting domestic legislation to give a non-legally binding declaratory text status and pull within domestic law raises interesting questions for our understanding of the sources of international legal obligation (versus the sources of aspiration and political commitment), as well as concerns about the impact of UN efforts that raise unmet expectations. On the other hand, this may simply strike readers in other jurisdictions as very strange, at least in those jurisdictions where there is no chance that a domestic court would ever rely upon, or even cite, a General Assembly resolution text.

The United Nations Declaration on the Rights of Indigenous Peoples – often called the DRIP or UNDRIP by those in search of a short form – is a non-legally binding declaratory text that was adopted by the UN General Assembly on 13 September 2007 by way of a resolution. The Declaration is contained in an annex to the resolution. It is a lengthy text, consisting of 46 articles, with previous declaratory texts in the field of human rights having contained say ten or twelve general principles. It is also much more detailed in the wording of its commitments, and it was adopted by way of a recorded vote.

The need for a vote was itself not without precedent, even in the field of human rights, with the 1986 Declaration on the right to development (A/RES/41/128) having been adopted by a recorded vote of 146 in favour, 1 against (the United States) and 8 abstentions (A/41/PV.97 at 64). But a vote within the field of human rights is, nonetheless, unusual.

The norm, and ideal, for those engaged in efforts at standard-setting is to adopt a new declaration “without a vote”, with the hope that the consensus achieved within the international fora will then provide the foundational basis, or agreement-in-principle, on the parameters for the successful negotiation of a future treaty text. This pattern of building support for an agreed framework for the future negotiation of a legally-binding text through the adoption by the General Assembly of a non-legally binding declaration was first established by the adoption of the 1948 Universal Declaration of Human Rights (A/RES/217 A III), which was followed many years later by the adoption, signature and then ratification of the two legally-binding International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights respectively. Additional examples can be found in the fields of racism, women’s rights, the rights of disabled persons, torture, and enforced disappearances, with the adoption of a declaratory text by the UN General Assembly being followed years later by the negotiation of a legally-binding treaty text to address matters in these fields. (A helpful listing of the declarations and conventions found in General Assembly resolutions that demonstrates this chronological pattern can be found here)

By contrast, the United Nations Declaration on the Rights of Indigenous Peoples was adopted by a recorded vote, with four democratic countries with significant indigenous populations voting no. These no-voting countries were Australia, Canada, New Zealand and the United States. As for a consensus among those voting yes, this is also not as clear if what is meant is agreement as to the content of all the provisions found within the Declaration. Several countries placed on record their country’s position with respect to certain provisions and certain themes and aspects, with these explanations of vote (EOVs) serving a purpose akin to adding a statement of understanding when a country signs and/or ratifies a treaty, while also providing source material for any future search for state practice. The official record of the day’s discussions within the General Assembly marking the adoption of the Declaration contains the verbatim recording of these statements (see UN Document A/61/PV.107 starting at page 10). (UN press releases also contain unofficial vote counts, but the UN advises that researchers wanting an official tally should rely on the meeting records.)

Clearly, many were upset with the negative votes lodged by Australia, Canada, New Zealand and the United States. However, it must be remembered that a declaratory text is “adopted” by a deliberative body, an assembly of the representatives of states. There is no “signing” involved, (as is often misreported by journalists), nor is there an opportunity to hold the vote again as the action has taken place. All that a no-voting state can do, if it wishes to show a change of position after the vote, is publicly state that it now supports the adoption of the Declaration. However, since the vote has past, as has the opportunity to issue an EOV, the no-voting country must use other means to publicize the terms of its endorsement.

Interestingly, this is what has happened with the United Nations Declaration on the Rights of Indigenous Peoples. The first of the four states to change its position was Australia, with a federal election in November 2007 resulting in a change of government a few months after the General Assembly vote. On 3 April 2009, a formal statement of support for the Declaration was made by the Indigenous Affairs Minister Jenny Macklin on behalf of the Australian Government. New Zealand then followed suit, expressing its support for the Declaration a year later, on 19 April 2010, in a speech delivered by New Zealand’s Minister of Māori Affairs, Dr Pita Sharples, during the first day of the ninth session of the UN Permanent Forum on Indigenous Issues in New York. Canada was next, issuing a statement on 10 November 2010 endorsing the principles of the Declaration, while also repeating its concerns with certain provisions and adding the caveat of consistency with Canada’s Constitution and laws. A month later, on 16 December 2010, President Obama announced that the United States would “lend its support” to the Declaration during the second White House Tribal Nations Conference.

As noted above, Canada’s statement of support contained a caveat, with the text of its endorsement also reiterating Canada’s main areas of concern, specifically: “the provisions dealing with lands, territories and resources; free, prior and informed consent when used as a veto; self-government without recognition of the importance of negotiations; intellectual property; military issues; and the need to achieve an appropriate balance between the rights and obligations of Indigenous peoples, States and third parties.” This language is identical to that used in Canada’s explanation of vote delivered in 2007 within the General Assembly (and recorded at pages 12-13 of the official record: A/61/PV.107).

Which brings us back to the private member’s bill. Canadian jurisprudence already imposes an obligation of consultation, not consent, with the latter term suggesting a requirement to agree, although there will be arguments that while the Declaration uses the word consent what was intended was consultation. Canadian law also requires a balancing of rights to a standard that is reasonable in a democratic society, rather than the higher standard of strict necessity and “just and compelling in a democratic society” that is found in article 46 of the Declaration. I raise these points not to critique the Declaration here, but to ask about the true intentions or implications of a campaign to incorporate declarations into domestic law, and also to raise a concluding point about the future for drafting declarations.

Is it the intention of the proposed domestic law to mandate the compliance of Canadian laws with the Declaration as endorsed? In other words, does the domestic incorporation of a declaratory text also include the domestic incorporation of the terms upon which a state gave its endorsement? Or is the intention, in light of those terms, to change Canadian law and jurisprudence to a position viewed as being more in sync with the Declaration? Or is the goal simply to give further domestic attention to the Declaration so as to legitimate the Declaration as an interpretive source to be used by the domestic courts? (albeit that at least two members of the Supreme Court of Canada felt no constraint in citing an earlier draft (!) version of the Declaration in 2001: Minister of National Revenue v. Mitchell 2001 SCC 33).

Admittedly, a private member’s bill has little chance of success. But what about the broader impact of the discussion it has triggered, as well as the expectations it has raised, with respect to the wider understanding of the sources of international legal obligation? Should the international community bother with efforts to draft legally-binding human rights treaties intended to stand the test of time, if all one needs to do is convince most member states within the General Assembly to adopt a non-binding political text and then later push for domestic legislation to give that text domestic legal effect? And what about the process of lodging reservations and interpretive declarations, a practice that is permitted under most human rights treaties (subject to general treaty law rules)? And lastly, what about the future for drafting declaratory texts to set aspirational standards to encourage all states to work towards improvements, if the actions taken within some states scare negotiators to require more and more specific wording, or more “no” votes? Do we want an international community of states where states find the need to absent themselves from joining a consensus that might help encourage change elsewhere?

In the interests of disclosure, the author did take part in the negotiation of the United Nations Declaration on the Rights of Indigenous Peoples at the General Assembly. She left government service in 2008 and the views presented in this post are her personal views. Official copies of the UN documentation referred to in this post can be obtained from the ODS database using the UN document symbols provided: see http://documents.un.org

[via EJIL: Talk!EJIL: Talk!]

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By admin on enero 28th, 2013

Iceland not responsible for the liabilities of its deposit insurance scheme

Iceland not responsible for the liabilities of its deposit insurance scheme

In a landmark decision, the EFTA Court on 28 January 2013 dismissed all claims brought by the EFTA Surveillance Authority against Iceland in the Icesave case. The Authority had alleged that Iceland had breached its obligations under Directive 94/14/EC on deposit guarantee by failing to compensate Icesave depositors and had violated the prohibition on non-discrimination in the Directive and Article 4 of the EEA Agreement by prioritising payments to domestic savers. The court, referring to the collapse of the Icelandic banking system as an “enormous event” (para. 161), found that Iceland was not responsible for the liabilities of the Icelandic deposit insurance scheme that was overwhelmed with claims following the collapse of Iceland’s three major banks.

Icesave refers to two branches of the Icelandic bank Landsbanki that accepted deposits offering comparatively high interest rates in the UK and the Netherlands. Deposits in these branches were primarily the responsibility of the Icelandic Depositors’ and Investors’ Guarantee Fund (TIF). Following the wholesale collapse of Iceland’s banking system in October 2008, savers in the UK and the Netherlands lost access to their deposits on 6 October 2008. The Icelandic Parliament adopted emergency legislation on the same day to split Landsbanki into a good and a bad bank. By virtue of the same legislation, it gave priority to depositors as compared to other creditors (for further background on the Icesave dispute, including the unsuccessful negotiations between Iceland and the UK/Netherlands, see my ASIL Insight Iceland’s Financial Crisis – Quo Vadis International Law).

The court sided fully with Iceland on the crucial legal and policy question that resonates far beyond Iceland: whether the state is and should be liable for liabilities of a national deposit insurance scheme. In its submissions, Iceland had argued that “to underwrite a deposit-guarantee scheme using the resources of the State creates its own problems. These include huge costs for the State, moral hazard on the part of the banks, and a linkage between the liabilities of the banks and the financial exposure of the State. That kind of link can have very serious consequences. A severe financial crisis easily turns to a possible sovereign default.” (Judgment, para. 103). Iceland added that a systemic banking crisis resulting in the collapse of the almost the entire banking sector could only be addressed with other policy tools. No existing deposit insurance scheme would be capable of paying out all depositor claims in a crisis of such magnitude.

Liechtenstein and Norway, as interveners, supported Iceland on this point. Liechtenstein submitted that the “Directive was intended to deal with the failure of individual banks; not with the collapse of an entire banking system. Liechtenstein contended that it was not envisaged that a general and automatic State responsibility covering the costs of the failure of the whole banking system would arise from the Directive.” Norway similarly argued that “general and automatic State responsibility for compensation of depositors as a last resort would impose an extensive financial burden on EEA States. Without a clear and precise wording in the Directive, the existence of such an obligation cannot be assumed. An obligation of such kind on the part of the EEA States does not follow from the preamble to the Directive or the preparatory works. Moreover, recital 24 in the preamble to the Directive appears to exclude automatic State responsibility.” (para. 113).

Conversely, the UK, the Netherlands and the European Commission, argued that the Icelandic deposit guarantee scheme was an emanation of the Icelandic state, and as such, any failure to pay by TIF was attributable to the Icelandic state. The Directive created obligations for the state to establish an effective deposit guarantee scheme, and not for the TIF. They also gave short thrift to Iceland’s defence of force majeure, arguing that even a financial crisis of the magnitude experienced by Iceland could at most delay the payment obligations, but not alter the obligation to pay.

The Court emphasised first that it was important to look at the specific provisions of the Directive in order to assess whether it imposed an obligation of result, i.e. an obligation on Iceland to ensure that all deposit holders were repaid following the failure of Icesave. It underscored that deposit insurance was subject only to minimum harmonisation. Generally, directives left the choice of means to the member state concerned, proscribing only a certain result, in this case establishing and supervising a deposit insurance scheme. It also underscored that the question of Iceland’s potential state liability for loss and damage to individuals was a separate one, and outside the scope of its judgement.

The Court relied on substantial changes to deposit insurance in the European Union (see Directive 2009/14) following the global financial crisis to conclude that Iceland was no obliged to guarantee TIF’s liabilities under the Directive 94/14 that applied in the Icesave case and offered more limited protection to depositors. Directive 2009/14 provides that “Member States shall ensure that the coverage for the aggregate deposits of each depositor shall be at least EU 50000 in the event of deposits being unavailable.” This new formulation, the Court explained, indicated that member states were now obliged to ensure that payment of that amount was in fact made by their deposit insurance scheme. Conversely, Directive 94/14 in its Article 7 provides that “Deposit-guarantee schemes shall stipulate that the aggregate deposits of each depositor must be covered up to ECU 20 000 in the event of deposits’ being unavailable.”

The EFTA Court referred to the judgment of the Court of Justice of the EU in Paul and Others as authority for the proposition that Article 7 of the Directive obliged states only to set up and ensure the proper functioning of their deposit insurance scheme, without a need for states to guarantee their liabilities. As a result, the Court held that the Directive does not envisage that “EEA states have to ensure the payment of aggregate deposits in all circumstances.” (para. 135). Under Directive 94/14 that applied in the Icesave case, “[t]he obligation on the EEA States is limited to the maintenance or adoption of rules that provide for an effective right to file an action against the guarantee scheme particularly in the case of non-payment.” (para. 143).

The Court also agreed with Iceland, Liechtenstein and Norway that the Directive was designed to deal with the failure of individual banks, not with systemic banking crisis affecting a country’s banking sector as a whole. It found that the Directive was expressly limited to the failure of a single credit institution (referring to recital 4 in the Directive’s Preamble). In further support of this conclusion, the Court referred to (i) a 2010 Impact Assessment of the European Commission, already taking into account the Icelandic experience in 2008, that contemplated a coverage ratio in member states’ deposit insurance schemes that would be unable to cope with a crisis of Icelandic magnitude; (ii) Directive 94/14 that contained no provisions on the mechanisms for funding deposit guarantees schemes, (iii) failure to provide for a specific level of funding and was and (iv) the Directive’s silence on the consequences of a deposit insurance scheme becoming unable to pay, except to provide for a right of action against the scheme, but not the State. The burden of deposit insurance schemes properly fell on the other creditor institutions, not the member state concerned. The court declares that “it is for the remaining credit institutions to make up the difference. In other words, the bankruptcy of a financial institution is covered – as in a classic insurance system – by the rest of the institutions active in the market.” (para. 159).

Guarantees by a member state to credit institutions directly would distort competition and amount to state aid. Similar distortions for competition would result from a state guarantee for the deposit insurance scheme. The court referred to the 1992 proposal for the deposit insurance directive by the Commission in which the Commission decided against prohibiting assistance to deposit guarantee schemes in exceptional circumstances. To the Court, the decision not to prohibit state bailouts of deposit guarantee schemes indicated that the drafters did not provide for an obligation for states to inject state funds into deposit guarantee schemes. Whether or not to bailout deposit insurance schemes was an economic policy decision that was not constrained by Directive 94/14. As a result, the State of Iceland was not obliged to make payments to depositors in the failed Icesave branches in a major banking crisis.

A major factor underlying the Court’s decision is concern about moral hazard. The Court took the view that a high degree of deposit insurance was costly, and had to be balanced against the benefits to savers. How this balance ought to be struck was, for the most part, an economic policy decision. The Court referred to recital 16 in the Preamble to the Directive 94/14 which explains that deposit insurance “might in certain cases have the effect of encouraging the unsound management of credit institutions.” The Court approvingly quotes Nobel Prize Laureate Joseph Stiglitz to the effect that an important downside of extensive deposit insurance was that savers lost incentives to evaluate the quality of their deposit-taking institutions. On this basis, the Court underscores that “moral hazard would also occur in the case of State funding, serving to immunise a deposit-guarantee scheme from the costs which have, in principle, to be borne by its members.” (para. 168).

The Court dealt with prayers 2 and 3, the prohibition on discrimination found in both Article 4 of the EEA Agreement and the Directive itself, in the briefest terms. It relied on a formal ground to dismiss the claims. The Court concludes that the alleged act (i.e. the emergency legislation passed by the Icelandic Parliament and the act of creating a good and bank Landsbanki by the Icelandic supervisor) are outside the scope of the prohibition on discrimination. The deposit insurance scheme was not involved in these macroeconomic policy decisions. The obligation for TIF to pay was triggered only after the transfer of the domestic deposits to the new Landsbanki had already occurred. No depositor protection applied to savers in the new domestic Landsbanki branch. The mostly Icelandic depositors at the new bank were, as a result, not a comparable class to savers in the UK and Dutch branches of Icesave, to whom the Directive applied. According to the Court, there was simply no comparable situation.

The Court underscored that its finding of discrimination was necessarily a limited one, given the scope of the application by the EFTA Authority. The Authority had asked the Court only to declare whether Iceland engaged in prohibited discrimination by failing to pay the minimum amount of compensation due under the Directive, like it did for domestic depositors (to whom no such payment was ever made because the new Landsbanki was a going concern). In obiter, however, the court added that even with a broader formulation of the Authority’s pleas on discrimination, the result would not necessarily change: “EEA States enjoy a wide margin of discretion in making fundamental choices of economic policy in the specific event of a systemic crisis” (para. 227).

The judgment is a vindication not only of Iceland’s crisis resolution strategy, but also a success for the International Monetary Fund. The IMF had a major influence on how Iceland dealt with its failed banks, including the decision to split off a viable part of Landsbanki and give priority to depositors over general unsecured creditors. The EFTA Court, given the uncertainty in the Directive as to whether a state was obliged to stand behind its deposit guarantee scheme, refused to hold the Icelandic state liable for private debts. The court endorsed the view that Iceland has no clear obligation to pay for the liabilities of its deposit insurance fund. A similar outcome to the Icesave dispute, without the damaging effects of uncertainty and the costly delay, could have been achieved much earlier in negotiations between Iceland and the UK/Netherlands, if the latter had shown more willingness to compromise. The Court’s decision is now likely to put the Icesave saga that has spanned more than 4 years to rest.

Over time, the Court’s decision could become an influential authority for the proposition that state and private liabilities are separate, unless a State has expressly assumed such liabilities. Directive 94/14, on which this dispute principally turned, left this question unclear. The Court refused to read an obligation of Iceland to assume private liabilities into the Directive. The Court, absent clear indications to the contrary, abstained from issuing a judgment with major financial implications for the many states with oversized banking sectors.

In the short-term, some will be concerned that this judgement confirms that the protection of depositors in the single market is limited, and unlikely to be available in the event of another systemic banking crisis putting strains on the deposit insurance scheme as whole. Conversely, others will welcome the court’s principled stance on moral hazard and deposit insurance that is likely to have a disciplining effect on savers and credit institutions. The Court put the ball back into the legislator’s court (where many would argue it properly belongs). Whether to provide deposit insurance with a state guarantee in the single market, just like the intensely debated issue of joint deposit insurance in the Eurozone, is a matter for the parliaments to decide, not for the courts.

[via EJIL: Talk!EJIL: Talk!]

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Poll position

Scottish Independence: Political Rhetoric and Legal Realities

Boyle and Crawford on Scottish Independence

Incorporating UN General Assembly Declaratory Texts into Domestic Law?

Iceland not responsible for the liabilities of its deposit insurance scheme

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