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By on enero 25th, 2013

French Military Intervention in Mali: It’s Legal but… Why? Part II: Consent and UNSC Authorisation

French Military Intervention in Mali: It’s Legal but… Why? Part II: Consent and UNSC Authorisation


In the First Part of this comment we have seen that reference to article 51 of the UN Chapter in order to justify Operation Serval, is problematic. We will now discuss the two other legal arguments used by France.


 Consent of the Malian Authorities


The argument according to which the authorities of Mali had the sovereign right to request external military intervention against the Islamist rebels and that France had the right to intervene on the basis of this invitation seems a priori powerful. Indeed, in her comments to the press just before the start of Operation Serval, Susan Rice, the U.S. Permanent Representative to the United Nations, argued that any State “can support and encourage the Malian government’s sovereign request for assistance from friends and partners in the region and beyond’ and that “there was clear-cut consensus about the gravity of the situation and the right of the Malian authorities to seek what assistance they can receive”.


This should nonetheless not lead to the conclusion that third States have an unlimited right to military intervention on the basis of the request or the consent of the legitimate authorities of the State where the intervention takes place. External intervention by invitation should be deemed in principle unlawful when the objective of this intervention is to settle an exclusively internal political strife in favor of the established government which launched the invitation (see T. Christakis & K. Bannelier, “Volenti non fit injuria? Les effets du consentement à l’intervention militaire”, Annuaire Français de Droit International, 2004, at 102-138). Such a military intervention will not be in principle in violation of art. 2(4) of the UN Charter, which is inoperative in such a situation because there is no use of force of one State against another (see art. 2 §4: “in their international relations”) but two States cooperating together Military assistance on request could nonetheless be perfectly legal when its purpose is different from arbitrating in such a way an internal political strife. As we have demonstrated in our 2004 study this is for example the case when a State assists another during a joint fight against terrorism. Of course, as we emphasized in this study, the problem which arises immediately is who can make the decision that a specific group is a terrorist group. Indeed established governments often try to portray their opponents as “terrorists” in order to de-legitimate them politically and be legally able to request external help against them.


In the case of Mali there is no doubt that at least two of the three Islamist groups against whom France is intervening are “terrorist groups”. Both Al-Qaeda in the Islamic Maghreb (AQIM) and, more recently (see §2 of S/RES 2085) the Movement of Unity and Jihad in Western Africa (MUJWA) have been placed by the UN Security Council and several States on the Al-Qaida sanctions list established and maintained by the Committee pursuant to resolutions 1267 (1999) and 1989 (2011). Things are more complicated, nonetheless, concerning the Ansar Dine movement which has not yet been placed on the UN terrorist lists and which has tried to distance itself from ‘terrorism’. On the other hand the terrible practices applied to the civilian population of Mali in the occupied northern territories during the past few months (stoning, amputations, whippings and other forms of corporal punishment, destruction of cultural heritage, etc.) have been common place for the three Islamist groups.


In any case, the National Movement for the Liberation of Azawad (MNLA) is not considered as a terrorist movement. The fact that this movement made a declaration in favor of this intervention against “terrorists” after the start of Operation Serval is probably an indication of the fact that some anti-government rebels themselves seem to assimilate the Ansar Dine movement with the two other Islamist groups (see communiqué N-46 of 13/01/2013 saying that the MNLA will act to help a successful outcome of the operations against terrorism – while asking the Malian Army not to cross the “line of demarcation” with Azawad, the separatist area of Northen Mali of which it has unilaterally declared the independence on 6 April 2012. See also this and this).


Interpretation of UNSC Resolution 2085


Last, but certainly not least, France said several times that it was acting within the context of UNSC Resolution 2085. This is probably the preferable legal basis for Operation Serval. On the one hand it seems pretty clear that, notwithstanding the restricted terms used by UNSC Resolution 2085, both the UN Security Council and other international organizations clearly interpreted from the beginning this Resolution as authorizing the French intervention. On the other hand France’s attitude till now indicates that this State tries to render the full realization of Resolution 2085 possible.


If we read jointly paragraphs 7, 9, 11, 13 and 14 of Resolution 2085 it seems clear that the UNSC authorized the use of force (“all necessary measures”) by an African-led International Support Mission in Mali (AFISMA) while urging all member States, including “interested bilateral partners” to help the deployment of AFISMA and offer “any necessary assistance in efforts to reduce the threat posed by terrorist organizations…”. It is well known that, due to many logistical difficulties, this UN-approved deployment was not expected to take place before September 2013. African leaders did not seem confident that a regional force could win a war against the rebels and appealed for help from Western powers. This was, for example, the case of the African Union chairman who, in January 8, called for NATO to “send forces” to Mali to help fight militant Islamists. Two days later the members of the Security Council met urgently in order to deal with the reported military movements and attacks by “terrorist and extremist groups” in the north of Mali. In a Security Council Press Statement published the 10th of January 2013, just before the French intervention, they observed that “this serious deterioration of the situation threatens even more the stability and integrity of Mali and constitutes a direct threat to international peace and security”. The members of the Security Council then:



“recall resolutions 2056 (2012), 2071 (2012) and 2085 (2012) adopted under Chapter VII of the Charter of the United Nations as well as the urgent need to counter the increasing terrorist threat in Mali.


The members of the Security Council reiterate their call to Member States to assist the settlement of the crisis in Mali and, in particular, to provide assistance to the Malian Defence and Security Forces in order to reduce the threat posed by terrorist organizations and associated groups.


The members of the Security Council express their determination to pursue the full implementation of its resolutions on Mali, in particular resolution 2085 in all its dimensions. In this context, they call for a rapid deployment of the African-led International Support Mission in Mali (AFISMA)…” (emphasis added).


It seems then that, confronted with “the urgent need to counter the increasing terrorist threat in Mali”, the UNSC changed its tune! The AFISMA should be deployed more rapidly but, while waiting, and in order to avoid an irreversible situation which could completely jeopardize the realization of Resolution 2085, Member States should “provide assistance to the Malian Defence and Security Forces in order to reduce the threat posed by terrorist organizations and associated groups”!


This interpretation by the UNSC of Resolution 2085 in a way that authorizes not only AFISMA but also all member States to provide military assistance to the Malian Forces in order to counter the terrorists advance, has also been confirmed by the African regional body the most directly concerned, the Economic Community of West African States (ECOWAS). On 12th January 2013 the ECOWAS published a Statement in which it “welcomes UN Security Council Press Release of 10th January 2013 authorising immediate intervention in Mali to stabilise the situation” and “thanks the French Government for its initiatives to support Mali”. (emphasis added).


It would then appear that, faced with the urgency of the situation, the UNSC interpreted Resolution 2085 in a way that allowed France to assist the Malian forces urgently in order to counteract the progression of the three Islamist Groups. Since then France has repeated several times that now that the progression by Islamist militants on Bamako had been halted, Africa must take the lead in Mali in a multilateral military intervention in conformity with UNSC Resolution 2085. While the “urgent interpretation” of this resolution by the UNSC and all other international actors directly involved in the wake of the French intervention and the consensus that followed concerning the legality of this intervention are probably sufficient to justify the recent events in Mali, we think that it will be useful for the UN Security Council to act in a more responsible manner and to adopt a new resolution in order to frame the exact role of France (and, potentially, other non-African actors) in Mali.



 (The authors would like to thank Olivier Corten for his helpful comments on an earlier draft of this paper. The usual disclaimer applies).



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By on enero 25th, 2013

French Military Intervention in Mali: It’s Legal but… Why? Part I

French Military Intervention in Mali: It’s Legal but… Why? Part I


Part 1: The Argument of Collective Self-Defense



Dr. Theodore Christakis is Professor of International Law at the University Grenoble-Alpes (France). He is Director of the Centre for International Security and European Studies (CESICE) and chairman of the ESIL Interest Group on Peace and Security.


Dr. Karine Bannelier is Assistant Professor of International Law at the University Grenoble-Alpes (France). She is Director of the Master’s Degree in International Security and Defense.





One week after France launched its military intervention (“Operation Serval”) in Mali, there seems to be a general consensus concerning the legality of this intervention. Indeed, as the French Minister of Foreign Affairs Laurent Fabius rightly emphasized, France has not received a single protest concerning this intervention. On the contrary, the number of expressions of support is overwhelming: many individual States, regional organizations (including ECOWAS), the UN Secretary General and the members of the UN Security Council themselves have expressed their support and understanding. Even the rare States who expressed their opposition to this intervention did not challenge its legality. This contrasts with various military interventions in the past which were met with strong criticism and seems to indicate that no State doubts the legality of the French intervention in Mali.


But what is the precise legal basis authorizing it?



The day after the beginning of Operation Serval, the French President declared that



France – at the request of the President of Mali and in compliance with the Charter of the United Nations – has committed herself to supporting the Malian army in the face of the terrorist aggression threatening the whole of West Africa. […] [Our Mission] consists in preparing the deployment of an African intervention force to enable Mali to regain her territorial integrity, in line with the Security Council resolutions” (emphasis added)


In a more detailed way the French MFA Laurent Fabius declared to the press that the legal justifications for the intervention are:



firstly, the appeal and the request made by Mali’s legitimate government, so here this is a case of legitimate self-defence; and secondly, all the United Nations resolutions, which not only allow but require those countries capable of doing so to support the fight against the terrorists in this matter. […] [T]o this legitimacy, drawn from Article 51 – to the legitimacy drawn from the United Nations resolutions – I’d like to add, if it were needed, two other forms of legitimacy: firstly the request by ECOWAS, the Economic Community of West African States, and [secondly] the position taken by the African Union […], who asked everyone to provide, in line with the relevant decisions by the Peace and Security Council, the required support at logistical and financial level and in terms of strengthening the capabilities of the Malian defence and security forces. So nobody is going to challenge this legitimacy” (emphasis added)


In other statements M. Fabius insisted that France intervenes within the context of Resolution 2085 and of article 51 of the Charter. France thus proposed three legal arguments: 1) Collective self-defense under article 51 of the UN Charter; 2) The consent of the legitimate government of Mali; and 3) Authorization by the UNSC.


It is intriguing that France felt the need to put forward three different legal justifications. We could probably think that if France was right, one legal ground would certainly have been enough. A devil’s advocate might even go as far as to think that if France has been invoking all these different legal arguments, that may be down to a concern that none of them is capable by itself of providing sufficient justification for the intervention – but that the combination of all three might!


In this First Part of our comment we will focus on the argument of self-defense. In the Second Part, tomorrow, we will discuss the two other legal arguments used by France.


Can Self-defense justify the French Intervention in Mali?


The first argument put forward by France is collective self-defense under article 51, following the request of the Malian authorities, in order to counter the “terrorist aggression” from the North of Mali.


According to the French newspaper Le Monde, France invoked article 51 of the UN Charter as the basis for its intervention in Mali during the UNSC meeting on Mali of 14th January, and “not a single member of the UN Security Council contested this interpretation of International Law” (see also this). If this is true, we find this consensus within the UNSC rather puzzling. The reference to article 51 of the UN Chapter in order to justify Operation Serval is problematic for three reasons.


1. No armed attack by another State


Traditionally, in order to exercise self-defense under article 51 there must be an armed attack of certain gravity by one State against another. Indeed, the ICJ, in its 2004 advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory found that article 51 ‘ha[d] no relevance in this case’ since that provision recognises:



[T]he existence of an inherent right of self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State…” (§ 139).


This position has been confirmed by the ICJ in its 2005 Judgment concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), (§§146-147). In  the case of the French intervention in Mali it is crystal clear that there is no “armed attack” against Mali by another State.


 2. No case of “indirect aggression” either


Since the 9/11 attacks the question of “indirect aggression” has been widely discussed. This theory implies that an armed attack committed by private groups could be attributed to a State which is substantially implicated in their activities and supports, helps or harbors these groups. We do not need to re-open this important doctrinal question here because it is also very clear that neither Mali nor France invoked this theory and there is no question of undertaking action in “self-defense” against a third State.


3. Self-defense against exclusively private groups and “lonely terrorists”?


In combination with the argument of “indirect aggression” several scholars claimed since the 9/11 attacks that article 51 could also be invoked in order to use force in self-defense against exclusively private groups, such as terrorists, with no “third State connection” but capable of launching important armed attacks. As we have seen, the ICJ in its two decisions of 2004 and 2005 did not accept such an extension of the scope of articles 51 and 2§4 of the UN Charter. These decisions have been criticized by some scholars, some States (such as the US) and, indeed, by some Judges in their separate opinions -  such as Judge Koojmans who found it “unreasonable to deny the attacked State the right to self-defence merely because there is no attacker State…”. Nonetheless, according to Olivier Corten “the inter-State character of [article 51] has been confirmed in practice since 11 September 2001” (The Law Against War, Hart, 2010, at 197).


If it is true that, as mentioned, “not a single member of the UN Security Council contested” the applicability of article 51 in relation with the French intervention in Mali, then this case could probably represent a major shift in State practice in this field and put in doubt Corten’s conclusion. It must be emphasized that, as Corten rightly points out, the major objection for accepting the applicability of article 51 to actions of non State actors is that it is not possible to allow military operations to be conducted under “self-defense” in the territory of another State that is innocent (because it has no links with the terrorists using its territory). But with respect to the situation in Mali this objection cannot be sustained: the armed activities under article 51 take place inside the territory of Mali – so the argument of the third “innocent” State is not relevant anymore. Could we thus consider that we are witnessing a clear and consensual extension of article 51 against non-State actors inside the territory of the attacked State?


We shouldn’t jump easily to such a conclusion. The problem with the situation in Mali is that, even if it is applicable exclusively to non-State actors, the theory of “external aggression” is not easy to establish. Although many foreign jihadists continue to pour into Mali, some of the groups opposing the Malian government and occupying the North of the country are exclusively or mainly composed by local Malian people.


This is essentially the case of The National Movement Liberation of Azawad (MNLA) which is made up of Tuareg, fights for the rights of Mali’s minority Tuareg community and seeks independence for a homeland it calls Azawad. France made “a clear distinction” between the MNLA and the “terrorists” and declared that “there will be no action against the Tuareg”, while, as we will see, the MNLA welcomed the French intervention and offered to help the “fight against terrorists” under some conditions. However, it will be interesting to see how this de facto alliance will survive the proclaimed French military aim of “total reconquest” of Mali and the fear that the Malian army will take advantage of the situation in order to crush the Tuareg rebellion.


Among the three Islamic groups that oppose the government, Ansar Dine is the only genuine home-grown movement. Its members are mostly Malians from the nomadic Tuareg ethnic group. The second group, the Movement for Oneness and Jihad in West Africa (MUJAO), also counts many Malian Tuaregs within its ranks. According to a report, Ansar Dine and Mujao have expanded the rebellion beyond the Tuaregs by incorporating a number of other Malian ethnic groups. Among the three Islamic groups only Al-Qaeda in the Islamic Maghreb (AQIM) seems to be composed exclusively by foreign elements.


Global recognition of the applicability of collective self-defense in such a context would thus amount to acknowledging the right of a government fighting a (mainly) civil war to portray part of its own population as “aggressors” and ask for foreign help to beat them. It is our concern that such an evolution might have negative effects for international peace and security.


Nor does this make any sense from a legal point of view. On the one hand we can hardly see why there should be a need to extend in such a controversial way the notion of “self-defense” in order to allow a State to use force against part of its own population. There is no need to authorize what is already authorized: all States have sovereign rights over their territory authorizing them to deploy police or military forces in order to suppress acts of terrorism and counteract, within the limits of human rights and/or jus in bello rules, an armed insurrection or separatist movement. They do not need an additional entitlement of “self-defense” under article 51 to do so. On the other hand, extending the institution of self-defense in such a way exclusively in order to be able to get foreign help to wipe out internal threats, is also useless because this situation is already covered by the theory of consent to military intervention which we will discuss in Part II tomorrow.



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By on enero 23rd, 2013

France Intervenes in Mali Invoking both SC Resolution 2085 and the Invitation of the Malian Government – Redundancy or Legal Necessity?

France Intervenes in Mali Invoking both SC Resolution 2085 and the Invitation of the Malian Government – Redundancy or Legal Necessity?



Vidan Hadzi-Vidanovic is a lawyer in the Registry of the European Court of Human Rights. The views expressed in this contribution are those of the author and do not necessarily represent the views of the European Court of Human Rights and the Council of Europe.


On 11 January France commenced air-strikes against Malian rebel forces which are controlling two thirds of the Malian territory. It also commenced ground operations several days later. The French Foreign Ministry explained that it is acting upon the invitation of the Malian government. Nevertheless, it emphasized that the action is conducted “strictly in the framework of the United Nations Security Council resolutions”. The intervention came a day after the Security Council called for a “rapid deployment of the African-led International Support Mission in Mali (AFISMA)” which was authorized by Resolution 2085 (2012) to “take all necessary measures” for supporting Malian authorities in “recovering the areas in the north of its territory under the control of terrorist, extremist and armed groups and in reducing the threat posed by terrorist organizations”.


Looking at the position of the French government and the formulation of the relevant provisions of Resolution 2085, one may rightfully wonder what the legal basis for the French intervention and the announced deployment of the Nigerian-led intervention forces actually is. Is it an intervention based on the invitation of the legitimate government of Mali, or an intervention based on the authorization of the Security Council, or are the two separate legal grounds mutually reinforcing?



Resolution 2085 envisions AFISMA exclusively as a force with the mandate to assist the Malian government in assuming its responsibility to exercise full authority over the entire territory of Mali. The Resolution binds the intervening force to conduct its tasks with “full respect of the sovereignty, territorial integrity and unity of Mali”. This formulation strongly suggests that, despite the Security Council authorization, the intervening forces cannot act on Malian territory without the consent of the legitimate Malian authorities. An intervention without Malian consent would simply go against “sovereignty” of Mali, even if ostensibly conducted in support of its government. The invitation or consent of the Malian government is, therefore, seemingly required by Resolution 2085.


One might argue that the invocation of Malian sovereignty in the Resolution is a matter of usual practice of the Council and that it does not affect the scope of the Council’s authorization. A closer investigation of past resolutions, however, reveals that the Council did not normally show particular sensitivity to the sovereignty of notionally legitimate governments when authorising interventions on their behalf. When the Council authorised the use of force against the Haitian junta in 1994 by Resolution 940, it made no mention of Haitian sovereignty or the wishes of the Aristide government in exile. It was legally immaterial whether Aristide government would consent to the intervention under the authorisation of the Security Council or not. Similarly, when the Council in its Resolution 1975 (2011) urged the Gbago administration in the Côte d’Ivoire to hand over power to the elected president Ouattara and reconfirmed its authorization of the use of force with the primary purpose of protecting the civilian population (although the result of the use of force was inevitably Gbago’s ousting from power as commented by Tzanakopoulos in his earlier post on this blog), the Council only mentioned its commitment to the sovereignty of the Côte d’Ivoire in the preambular part of the Resolution. It did not state that the use of force must be performed with full respect of the sovereignty of the Côte d’Ivoire. In contrast, when the Council was confronted with piracy in the Horn of Africa it “authorised” by Resolution 1816 (2008)  foreign naval powers to pursue pirate ships into the Somali territorial waters and to undertake military operations on Somali soil for the purpose of countering piracy and armed robbery at sea (operative para. 7 of the Resolution).  The authorisation, however, was conditioned by an explicit consent of Somali Transitional Government to such intrusions (operative para. 9 of the Resolution) (on the Resolution and its interpretation see Judge Treves’ excellent article in the EJIL). Resolution 2085 on the authorisation of the use of force in Mali should be interpreted in a similar fashion: the invitation or consent of the Malian government is necessary for the intervention to take place.


This, however, does not mean that the Resolution has merely political and no legal significance, i.e. that it is legally simply a redundancy in the presence of Malian consent. Normally, once a state can demonstrate that it is using force outside its own territory on the ground of one of the accepted exceptions to Article 2(4) of the UN Charter, or under circumstances that do not even bring the prohibition of the use of force into play, it does not need the approval of the Security Council. Of course, even in such circumstances the authorization can add to the legitimacy of the action, but not to its legality, as it was the case, for example, in the First Gulf War (See, for example, Dinstein, War, Aggression and Self-Defence, 5th ed, (CUP, 2011), at 301). There are, however, situations in which it is very hard to tell whether the conditions for the legality of the use of force are met and the situation in Mali is precisely one of those situations.


When a state uses force on the territory of another state at theinvitation and with full consent of the government of that state, the prohibition of the use of force in Article 2(4) of the Charter is not even engaged. When intervening forces are invited by a government which exercises its sovereign powers by issuing such an invitation, no use of force of one state against another exists. This, however, holds true only if it is possible to deduce what group is the government of a state.


It was traditionally axiomatic that states are represented by governments and the government was considered to be any group which exercises effective control over the state’s territory, irrespective of how such control was achieved. The principle was famously formulated in the Dreyfus case of 1901. The effective control doctrine seems to be giving way in recent years to some kind of a “legitimacy doctrine” according to which “governments which came into power by extra-constitutional means should not be recognised, at least until the change had been accepted by the people” (see, e.g., in M. Shaw, International Law, 6th ed (CUP, 2006), at 456). These two opposing views open a wide field for diverse interpretations as to what group has the capacity to send an invitation for the intervention – the group that exercises the effective control or the group that has legitimacy (Talmon, for example, advocates for the latter approach in his Recognition of Governments in International Law, (Clarendon, 1998) at 113 ff.). It is even more frequent in practice that both contesting groups exercise effective control over some part of the territory and that they both claim legitimacy. In these situations, it is really initially up to an intervening state to decide who is the “legitimate” representative of a state. This obviously can lead (and has led) to numerous abuses of the intervention by invitation or consent and ultimately violations of the right of self-determination of the governed people. To avoid abuses in situations where the legitimate representative of a state cannot be undoubtedly determined, many argue that once the internal disturbances evolve into an internal armed conflict in which an organised rebel armed group controls a significant portion of state’s territory from which it can perform sustained military operations of a certain intensity, foreign states cannot intervene by the invitation of any side of such conflict (Schachter 82 Michigan L. Rev. 1620 (1984); Le Mon, 35 Int’l. L. & Pol. 741 (2003); Moore, 13 Ga. J. Int’l. & Comp. L. 191 (1983)).


The present situation in Mali can certainly be categorised as an internal armed conflict. Rebel groups control more than two thirds of the country’s territory, they are well organised, they perform sustained military operations against the government in Bamako and their military operations are of significant intensity. And although it might intuitively seem that the Malian rebel groups (Al Qaeda in Islamic Maghreb and Movement of Unity and Jihad in Western Africa) which are allegedly affiliated to Al Qaeda can never legitimately represent the people of Mali and the Malian state, it is important that such intuition is not applied by the intervening states unilaterally. It is not and should not be up to individual states to conclusively decide which party to the conflict is legitimate and which one is not. The Security Council of the United Nations, however, does have such power.


Although Resolution 2085 contains all the magic words of the “Security Council authorisation” to use force, it actually only determines which side of the conflict is the bearer of sovereignty in Mali and which side of the conflict can be assisted by a foreign intervention. In addition, the Resolution clearly “emphasises” that, prior to the commencement of the AFISMA operations, “the military planning will have to be further refined” and “requests that the Secretary-General also confirm in advance the Council’s satisfaction with the planned military offensive operation.” No such satisfaction has been expressed prior to the commencement of the French intervention, although it is possible to argue that it was implied in the Council’s call for the rapid deployment of the AFISMA from 10 January. Finally, the Resolution’s demand that the operations are conducted with full respect of Malian sovereignty means that the Resolution would not by itself be a sufficient legal ground for the foreign intervention in the Malian conflict, just as the invitation by a government from Bamako on its own would not suffice. Only together do they provide a valid legal basis for a foreign intervention.


This hybrid approach certainly deserves attention and merits serious consideration in the future efforts to regulate controversial forms of armed intervention. It presents a fine mixture of a long-awaited effective and responsive collective security system and the preservation of the importance of state sovereignty. While this approach preserves the Council’s ultimate authority for deciding on the intervention, it also gives a much more active role to the affected state, giving it (somewhat) greater control over the foreign intervention on its territory. This approach remedies the arbitrariness of bilateral “agreements” between the intervening states and the beneficiary of the intervention (be it the effective or legitimate government or even the rebels) and secures that the potential hidden self-interest of an intervening state is put in check and under at least some control of the body empowered to maintain international peace and security.



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By on enero 22nd, 2013

Philippines Initiates Arbitration Against China over South China Seas Dispute

Philippines Initiates Arbitration Against China over South China Seas Dispute


Today, the Philippines has initiated arbitral proceedings against China with regard to China’s claims over much of the South China seas. Those Chinese claims have led to serious disputes between China and several of its neighbours in East Asia with those disputes intensifying recently. Both the Philippines and China are parties to the United Nations Convention on the Law of the Sea and Part XV of that treaty provides for compulsory arbitral/judicial jurisdiction over disputes arising under that Convention. As is well known, UNCLOS Part XV provides for a choice of procedure and States parties may choose either the International Tribunal for the Law of the Sea (ITLOS); the International Court of Justice (ICJ); or an arbitral tribunal as their preferred means for compulsory settlement. In the absence of a choice, arbitration is the default mode of settlement. Also, where the disputing parties have not chosen the same means, the dispute shall be referred to arbitration under annex VII of the Convention (See Art. 287, paras. 1, 3 & 5). As neither the Philippines nor China has made a choice of tribunal, the Philippines has referred this dispute to arbitration. The Philippines notification of the proceedings and its statement of claim can be found here.


Although UNCLOS provides for compulsory jurisdiction over most matters arising under the Convention,  Art. 298 provides that a State may at any time declare that it does not accept compulsory jurisdiction over certain specified categories of disputes. In particular, a State may exclude compulsory jurisdiction with respect to “disputes concerning the interpretation or application of  articles 15, 74 and 83 relating to sea boundary delimitations, or those  involving historic bays or titles”.  China did precisely this in 2006. So, the first thing the Philippines would need to do would be to persuade the arbitral tribunal that it has jurisdiction over the case. To do that it would need to show that the dispute it has submitted to the arbitral tribunal falls outside China’s exclusion of jurisdiction under Art. 298(1)(a). This may not be so easy.


In its statement of statement of claim and a statement by the Philippines Foreign Minister, the Philippines tries to show that it’s claim  is not one relating to boundary delimitations. In statement of claim:



“the Philippines seeks an Award that: (1) declares that the Parties’ respective rights and obligations in regard to the waters, sewed and maritime features of the South China Sea are governed by UNCLOS, and that China’s claims based on its “nine dash line” are inconsistent with the Convention and therefore invalid; (2) determines whether, under Article 121 of UNCLOS, certain of the maritime features claimed by both China and the Philippines are islands, low tide elevations or submerged banks, and whether they are capable of generating entitlement to maritime zones greater than 12 M; and (3) enables the Philippines to exercise and enjoy the rights within and beyond its exclusive economic zone and continental shelf that are established_ in the Convention.”


Those claims are expanded on in the final couple of pages of the Philippine’s statement of claim which deal with the relief sought. What is sought includes a series of declarations, including: declarations that certain maritime features (those referred to in in (2) above) are part of the continental shelf of thePhilippines and not part of, or located within, the continental shelf of China; that China has unlawfully claimed and unlawfully exploited the resources of Philippines’ continental shelf and EEZ; and that China has unlawfuly interfered with Philippines rights of navigation within and and beyond 200 miles of the Philippine’s archipelagic baseline.


The Philippines has carefully avoided asking the tribunal to draw a line delimiting the boundaries of its maritime zones and those that belong to China. However, most it’s claims would seem to require the tribunal to determine whether particular features or areas are within the maritime zones of the Philippines or those of China. Is that covered by an exclusion of jurisdiction over boundary delimitation?  To accept the jurisdiction, the tribunal it would seem that the tribunal has to walk a fine line. It might say particular features are (or are not) islands or rocks which generate no or limited maritime entitlements. However, can the tribunal then go on to say which State has those limited entitlements? In short, is any determination that a particular area is part of the maritime zones of a particular State an aspect of delimitation? Or is delimitation strictly about drawing lines to divide the maritime zones? Readers any thoughts on this?


As an aside, although China has not been an active participant in international tribunals, over the past few years it has been more active in proceedings before international tribunals. It has been involved in very recent advisory proceedings both before ITLOS and the ICJ (see this previous post of mine  and this post and piece by Julian Ku). However, to my knowledge this would be the first contentious inter-State case involving China, since the communist revolution in China.



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By on enero 11th, 2013

Canada and Denmark reach agreement on the Lincoln Sea Boundary

Canada and Denmark reach agreement on the Lincoln Sea Boundary

Jacques Hartmann is Lecturer in Law, Dundee Law School, Scotland.

This graphic is for illustrative purposes only. The solid black line is the boundary agreed in the 1973 treaty. The broken black line is the boundary agreed ad referendum. The broken blue lines indicate 200-nautical-mile zones.
1) Lincoln Sea; 2) Nares Strait; 3) Baffin Bay 4) Davis Strait ; 5) Labrador Sea

On 28 November last year Canada and the Kingdom of Denmark announced that they had reached a tentative agreement on the maritime boundary in the Lincoln Sea. The Lincoln Sea is a body of water bordering the Arctic Ocean, north of Canada’s Ellesmere Island and Greenland, which, together with the Faeroe Islands, is part of the Kingdom of Denmark. The Canadian/Danish agreement partly settles long-standing uncertainty over the northern boundary between the two countries, but it does not settle the dispute over Hans Island which is situated right in the middle of a potentially important sea route to the Arctic Ocean.

Most of the boundary between Canada and Greenland was established by a delimitation treaty in 1973. The treaty delimited the continental shelf, covering:

‘…[The] area between Greenland and the Canadian Arctic Islands… for the purpose of each Party’s exploration and exploitation of the natural resources of that part of the continental shelf…’

Although that treaty officially concerned the continental shelf, both Canada and Denmark have used the delimitation line to define fishing zones. Thus by usage it is had become a maritime boundary.

The 1973 delimitation treaty lists 127 points from the Davis Strait in the south to the Nares Strait (also know as Robson Channel) in the north, the narrow strait of water between the northernmost part of Ellesmere Island and Greenland. That treaty established a boundary of nearly 1,500 nautical miles. At the time, it was the longest shelf boundary ever negotiated. The new agreement extends the boundary to more than 1,600 nautical miles.

Most of the boundary follows a median line extending 200 nautical miles from the respective coasts. This was not possible in the Nares Strait and Kane Basin, the northernmost part of the boundary, due to the proximity of Ellesmere Island to Greenland. In fact, the two islands are so close that when Canada extended its territorial sea from 3 to 12 nautical miles in 1972, it went beyond the median line with Greenland. The northernmost part of the delimitation line was therefore settled by negotiation.

No agreement was reached with regard to the Lincoln Sea. Instead, the 1973 treaty stated that ‘for the time being the Parties have not deemed it necessary to draw the dividing line further north than point No. 127’. It was later agreed that the boundary in the Lincoln Sea should be an equidistance line, but there was disagreement on technical aspects of how the line should be drawn. The new agreement settles these technical aspects and solves a disagreement that has existed since the 1970s concerning a small area of approximately 65 square nautical miles.

According to the information released, the new agreement will provide an opportunity to modernize the provisions in the 1973 treaty and to complete a process of technical adjustments to the coordinates of the existing boundary. Amendments were already made in 2004 and further technical adjustments occurred to the southern part of the boundary in Baffin Bay and Davis Strait in 2009. More recently experts have completed work for Nares Strait. Experts from both countries have also been working together collecting data for the extension of the continental shelf boundary beyond 200 nautical miles.

Although neither Canada nor Denmark has yet made a submission to the Commission on the Limits of the Continental Shelf (discussed by Douglas here) concerning the Arctic Ocean, it is likely that they will do so in the near future (for Canada the deadline is November 2013 and Denmark November 2014). Assuming that the Commission accepts that each has a continental shelf in the Arctic beyond 200 nautical miles, the delimitation of a boundary between the continental shelves will be necessary.

For now, the new agreement means that the boundary between Canada and Greenland is almost complete, except for a 1,2 kilometer gap between point 122 and 123. The reason for the gap is a small barren knoll with the name of Hans Island. Sovereignty over the island has long been disputed and the 1973 delimitation line stops on each side of the low-water mark of the island.

Hans Island is uninhabited and has no known deposits of oil or other raw materials, but it is situated right in the middle of a potentially important sea route. The continued melting of ice in the Arctic Ocean is expected to result in the opening (at least during parts of the year) of the Northwest Passage. However, as the agreed delimitation line seemingly leaves the island without any territorial waters, sovereignty over the island has no effect on the legal control of navigation in the strait. Thus it is difficult to find a rational explanation for the longstanding dispute over the island, other than national pride.

Except for the occasional expedition, the island was largely unheard of until 2005, when Bill Graham, then Minister of Defense, hoisted the Canadian flag on the island. This resulted in an official protest from the Danish Government and a frenzy of expeditions (see timeline here). These expeditions are often referred to as the ‘battle of the bottles’ as Canadian and Danish visitors left bottles of liquor when they remove the other sides’ flag and erected their own. These activities were carried out by the national forces of both States. Presumably this was done to demonstrate ‘effective control’ over the island. As stated in the Danish Strategy for the Artic: ‘Enforcement of sovereignty is exercised by the armed forces through a visible presence in the region…’

As the island is uninhabited, neither Canada nor Denmark can claim it on the basis of historical occupation. There are no known treaties explicitly mentioning the island, nor is the principle of uti possidetis applicable. Canada bases its claim on its acquisition of Britain’s Arctic territories, by the British Adjacent Territories Order of 1880. But the British did not discover the island. The first reference to ‘Hans Island’ appears in the Narrative of the North Polar expedition (p. 407) from 1872. The expedition was led by Captain C.F. Hall, an American. The island was named after Hans Hendrik, a Greenlandic Inuit who was a member of Hall’s expedition.

The United States claimed part of northern Greenland until 1917. The claim was relinquished as part of a transfer agreement concerning the Danish West Indies, now the United States Virgin Islands.

Denmark’s claim to Greenland dates back the early Nordic colonies founded by Eric the Red in the tenth century (PCIJ, Legal Status of Eastern Greenland (1933)). The title was recognized by the Permanent International Court of Justice, which inter alia stated that in the:

‘absence of all claim to sovereignty over Greenland by any other Power, Denmark must be regarded as having displayed during this period of 1814 to 1915 her authority over the uncolonized part of the country to a degree sufficient to confer a valid title to the sovereignty.’ (p. 54)

Whether this includes Hans Island is open to debate. In any case, the announcement of 28 November states that: ‘The tentative agreement does not address the issue of sovereignty over Hans Island.’ Instead, that issue is to be ‘subject of continuing discussion intended to arrive at a mutually satisfactory solution.’

Recently, there have been reports that the island may be split down the middle. A friendly solution would be preferable to a ‘scramble’ for the Artic. The practice of using State forces to display ‘effective control’ over uninhabited islands is worrying. This is one area where international law does not seem to secure international peace and security, but rather the opposite. Canada and Denmark would do well establishing a positive example for other States to follow.

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By on enero 03rd, 2013

Argentina’s President To UK: Stop ‘Blatant Colonialism’ In Falklands

Argentina’s President To UK: Stop ‘Blatant Colonialism’ In Falklands

LONDON — Argentina’s president called on Britain on Thursday to relinquish control of the Falkland Islands, accusing London of taking part in an act of “blatant colonialism” in claiming the wind-swept archipelago.


Cristina Fernandez de Kirchner published an open letter in the Guardian newspaper urging Prime Minister David Cameron to honor U.N. resolutions which she says backs her case for the return of the islands, which Argentina calls the Malvinas. She has made several similar demands in the past.


“180 years ago on the same date, January 3rd, in a blatant exercise of 19th-century colonialism, Argentina was forcibly stripped of the Malvinas Islands, which are situated 14,000 kilometers (8,700 miles) away from London,” she says in the letter, copied to U.N Secretary-General Ban Ki-moon.


Britain asserted control of the south Atlantic islands by placing a naval garrison there in 1833. Britain and Argentina fought a brief war in 1982 after Argentina invaded the islands. More than 900 people died, most of them Argentines.


Cameron rebuffed the Argentine president’s demand that the islands be handed over. “The future of the Falkland Islands should be determined by the Falkland Islanders themselves, the people who live there,” the British prime minister said.


He said Kirchner should pay heed to the result of a referendum to be held on the islands this year, noting that whenever the islanders “have been asked their opinion, they say they want to maintain their current status with the United Kingdom.”


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By on diciembre 24th, 2012

The ECtHR Finds Macedonia Responsible in Connection with Torture by the CIA, but on What Basis?

The ECtHR Finds Macedonia Responsible in Connection with Torture by the CIA, but on What Basis?



André Nollkaemper is Professor of Public International Law at the Faculty of Law of the University of Amsterdam. He directs the project on ‘Shared Responsibility in International Law’ (SHARES); this piece is cross-posted on the SHARES Blog.


On 13 December 2012, the European Court of Human Rights (‘the Court’) found the that the Former Yugoslav Republic of Macedonia (‘Macedonia’) was responsible in connection with the ill-treatment and torture of Khaled El-Masri. The judgment adds a further chapter to the Court’s rich case law on situations where a state party is held responsible in connection with the (wrongful) acts of another state.


El-Masri, a Lebanese-born German national, alleged that in the period from 31 December 2003 to 29 May 2004 he had been subjected to a secret rendition operation, in which agents of Macedonia had arrested him, held him incommunicado, questioned and ill-treated him, and handed him over at Skopje Airport to CIA agents who then transferred him to Afghanistan, where he had been detained and ill-treated for over four months.


No one who reads the facts of the case will argue with the Court’s conclusion that Macedonia had to bear international responsibility. The question is on what grounds one can base this conclusion.


The approach chosen by the Court may surprise many international lawyers. Influenced by decades of work of the International Law Commission (‘ILC’), their approach would be a combination of attribution of conduct on the one hand and the breach of an international obligation, on the other: Macedonia then would be responsible for handing over El-Masri to the CIA, in the face of risk (if not certainty) that he would be ill-treated and tortured. They would not normally say that the act of ill-treatment at the hands of the CIA itself is attributed to Macedonia, but limit Macedonia´s responsibility to its own wrongful conduct. This distinction may seem a legal nicety, but it may have practical relevance (for questions of evidence and reparation) and also reflects that what is essentially a sovereignty-based consideration: it should not easily be presumed that a state is responsible for acts committed by another subject of international law.


The Court takes a somewhat different approach. But it is quite difficult to figure out what exactly this approach is. While the fact that the Court does not feel compelled to follow the ILC´s conceptual straightjacket is in many respects refreshing, its own line is at times somewhat inconsistent and confusing. For one thing, it is difficult to see why the Court uses interchangeably the terms ´attribution´ and ´imputation´ – one may guess that the Court uses the latter when it seeks to leave aside the ILC´s approach, but it would be nice if the Court would not invite us to speculate.


A more substantive point is that, without clear rationale and justification, the Court intertwines the concepts of attribution of conduct and attribution of responsibility. For instance, the Court found that the responsibility of Macedonia was engaged with regard to the applicant’s transfer into the custody of the United States authorities and eventually his transfer to Afghanistan, despite the existence of a real risk that he would be subjected to further treatment contrary to Article 3 of the European Convention on Human Rights (ECHR) (para. 223). This follows the Soering case-law, and fits in traditional doctrine: Macedonia would be only responsible under Article 3 for its own conduct and not for the torture in Afghanistan itself. But it is then hard to understand why the Court speaks in this context of attribution of responsibility (para. 215), rather than attribution of conduct.


Nonetheless, amidst all this confusion, an interesting thought emerges. In regard to two allegations, the Court concluded that Macedonia was not (only) responsible for the act of handing over El-Masri, but that it was responsible for conduct that clearly was not its own. Macedonia had handed over El-Masri to a CIA rendition team at Skopje Airport, where he was ill-treated before being sent off to Afghanistan. The Court found Macedonia ‘responsible for the ill-treatment to which the applicant was subjected at Skopje Airport by CIA agents’. And in respect to the detention in Kabul, once the CIA had flown EL-Masri there, it found Macedonia to be responsible for a violation of Article 5 during the entire period of his captivity in Kabul (para. 240), and imputed the detention (an act committed by the CIA) as such to Macedonia (see also para. 235).


This approach of making a state responsible for acts that are not its own may be explained by the scope and contents of the particular obligations of states under the ECHR. That is particularly clear for the events at Skopje airport. The Court could have approached this as a Soering type situation, and could have held Macedonia responsible for handing over a person to a foreign state in the face of a risk of torture. However, the difference was that the CIA mistreated El-Masri at the airport itself, and this was therefore not just a question of handing someone over in the face that he would be mistreated in another state. The Court thus had to take a different approach and stated in para. 206 that:



 ‘the acts complained of were carried out in the presence of officials of the respondent State and within its jurisdiction. Consequently, the respondent State must be regarded as responsible under the Convention for acts performed by foreign officials on its territory with the acquiescence or connivance of its authorities’.


The Court’s finding that Macedonia was responsible under the Convention for the acts performed by foreign officials on its territory with the acquiescence, or connivance of its authorities, reminds us that there is a world outside the conceptual framework established by the ILC. The Court did not attempt to explain its approach in ´ILC terms´- none of the four Articles of the Articles on State Responsibility (‘ASR’) that the Court referred to (Art. 7, 14, 15 or 16) is relevant in this context. Driven by the general obligation of states to protect rights of persons under their jurisdiction, the Court´s approach seems to be Macedonia is responsible for the wrongful act of handing over El-Masri and that because of its acquiescence or connivance, this responsibility extends to El-Masri´s ill-treatment by the CIA.


This approach follows the Human Rights Committee, which in a 2006 case against Sweden determined that ‘a State party is responsible for acts of foreign officials exercising acts of sovereign authority on its territory, if such acts are performed with the consent or acquiescence of the State party’ (Mohammed Alzery v. Sweden, para. 11.6).


 A striking aspect of the Court’s reasoning is that it equates the responsibility of a state vis-à-vis the conduct of another state (here the US), with the responsibility of a state vis-à-vis the acts of private persons. It refers, for instance to Ilascu v. Moldova and Russia § 318, in which the Court said that ‘the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage the State’s responsibility under the Convention’.


The Court’s equation of state responsibility vis-à-vis conduct of private actors on the one hand, and vis-à-vis foreign states on its territory, is logical from the perspective of the ECHR. Once the scope of states’ obligations to protect rights of persons within their jurisdiction was extended to obligations to secure, that third parties within their jurisdiction did not interfere with rights and freedoms of individuals, there is no compelling basis for distinguishing between private parties and states that acted within the territory of the state party.


The justification of the construction then lies in the combination of the (positive) obligations of states party under the Convention, and the fact that the conduct in question took place on its territory with its acquiescence or connivance, which in turn was incompatible with the positive obligations. The primary rules thus in a way incorporate questions that in the ILC texts are considered as freestanding secondary rules, just as the Court considers the question of facilitation of ill-treatment of El-Masri as a breach of positive obligations (e.g. para. 211), not in terms of a responsibility under Art. 16 of the ILC Articles (even though the Court did list this as a relevant norm of international law).


Although all of this thus can be explained with the framework of the Convention, a reading of the judgment raises many questions concerning this approach. The statement that Macedonia was responsible under the Convention for acts performed by foreign officials on its territory is somewhat ambiguous. Since the Court did not go as far as attributing CIA conduct to Macedonia, this wording may be taken to suggest that Macedonia would be responsible without itself having committed a wrongful act. That of course is not what the Court intended to say, but a more solid explanation would help.


Somewhat mysterious is also that whereas Macedonia´s responsibility for handing over El-Masri to the CIA was based on the traditional Soering case law (Macedonia was responsible for the act of transferring El-Masri into the hands of the CIA in the face of risk of torture (para. 223), not for the torture in Kabul, just as in a Soering case, the extraditing state is not responsible for the death row or the death penalty that later occurs), it took a different line in regard to the responsibility of Macedonia for the illegal detention by the CIA of El-Masri in Kabul. Here the Court found Macedonia to be responsible for a violation of Article 5 during the entire period of his captivity (para. 240) and suggested that it imputed the detention (in the hands of the CIA) as such to Macedonia (see also para. 235).


This could be explained as extension of responsibility based on criteria of foreseeability and causation, but then it is not obvious why these factors were not applied in regard of the removal of the applicant to Kabul, where the Court only held Macedonia responsible for the removal, not for the torture in Kabul itself. All of this seems a connection of unfinished and not systemically developed thoughts.


Yet, in this midst of all this there is a thought that matters. For all its incoherence and lack of clarity, the Court´s language has a hint of normative power that the general law of responsibility lacks.The general law of responsibility by its conception of responsibility-based-on-wrongfulness, prefers determinations that one is responsible for the handing over of a person or for its inaction, not for the resulting torture itself.  In contrast, the Court´s approach may allow us to say that if a state hands over a person to another state in the knowledge that the person is tortured, and stands by when that torture happens, it bears responsibility for the torture itself.


The hint of a fresh approach to the law of responsibility deserves to be taken forward. There is no other international Court that has a similarly rich case-law on responsibility of states in connection to conduct of other states. It is about time that the Court starts clarifying the grounds of responsibility of states under the Convention, and in particular the grounds for extending such responsibility to acts that were committed by other states.



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By on diciembre 21st, 2012

Catalonian Independence and the European Union

Catalonian Independence and the European Union



This post is part of an editorial that appears in the issue of EJIL (Vol. 23/4) that is published today


‘Vive le Québec libre!’ Who can forget de Gaulle’s mischievous and irresponsible speech in July 1967 during his visit to that hapless province, a catchphrase which has become since then the eternal rallying cry for Western tribalism. And now, joining the ever lengthening queue is Catalonia – the subtext of whose recently called elections is, once again, ‘independence’. The Basques are lurking in the background and the Scots are not even lurking but quietly forging ahead. And there is ‘Padania’ led by the awful Lega Nord in Italy, and the list does not end there.


Feeding this frenzy for secession and independence in Europe is the premise that all these new states will somehow find a safe haven as Member States of the European Union. Absent that assumption, appetite for independence would be significantly muted, the rough seas of ‘going it alone’ far more threatening. The Canadian Supreme Court, in its careful and meticulous decision on Quebec the reasoning of which remains valid today, clearly showed that none of these cases enjoy a right of secession under public international law, since all of them enjoy extensive individual and collective liberties enabling the full vindication of their national and/or cultural identity within their respective states.


But the issue is not one of rights, of law. It is simply ethically demoralizing to see the likes of Catalonia reverting to an early 20th-century post-World War I mentality, when the notion that a single state could encompass more than one nationality seemed impossible – hence the special treaties on minorities which abounded in the break-up of the Ottoman and the Austro-Hungarian Empires. These arrangements were well-intentioned but lacking in political imagination and eventually, let us not hide the ugly facts, feeding and leading to that poisonous logic of national purity and ethnic cleansing. Make no mistake, I am not suggesting for one minute that anyone in Catalonia is an ethnic cleanser. But I am suggesting that the ‘go it alone’ mentality is associated with that kind of mindset.


Yes, Catalans and Basques suffered serious historical wrongs in the pre-democracy era in Spain. And I have huge, truly huge, empathy and sympathy for Catalans who want to live and vindicate their cultural and distinct political identity. For thousands, maybe the majority, this is really all it is about. But to play the ‘Franco card’ as a justification for secession is but a fig leaf for seriously misdirected social and economic egoism, cultural and national hubris and the naked ambition of local politicians. It also runs diametrically contrary to the historical ethos of European integration. The commanding moral authority of the Founding Fathers of European integration – Schumann, Adenauer, de Gaspari and Jean Monnet himself – was a result of their rootedness in the Christian ethic of forgiveness coupled with an enlightened political wisdom which understood that it is better to look forward to a future of reconciliation and integration rather than wallow in a past, which, notably, was infinitely worse than the worst excesses of the execrable Franco.


It is sometimes said that the principles of democracy and self-determination require decision by referendum. But this of course begs the question of who is the ‘political self’ that has the right to determine whether or not the historical nation – even if composed of several peoples – will be broken up and secession allowed. Do we allow every distinct national, cultural and linguistic ‘minority’ in Europe to hold a referendum about secession and independence? The Corsicans? the Bretons? The Welsh? The German speakers of the Alto Adige? The list is endless, given the wonderful cultural richness of Europe. Why should it not be the French as a whole, or the British as a whole, or the Italians as a whole who get to decide the future of their state? Why should it be the Catalans rather than, perhaps, all citizens of Spain who get to decide about the breakup of the Kingdom? There is no self-evident answer to this question. I would argue that it is only under conditions of political and cultural veritable repression that a case for regional referenda can convincingly be made. With its extensive (even if deeply flawed) Statute of Autonomy it is simply laughable and impossible to take seriously Catalan arguments for independence, arguments which cheapen and insult meritorious – if inconclusive – cases such as that of the Chechens.


The European Union is struggling today with a decisional structure which is already overloaded with 27 Member States, but more importantly with a socio-political reality which makes it difficult to persuade a Dutch or a Finn or a German that they have a human and economic stake in the welfare of a Greek or a Portuguese, or, yes, a Spaniard. Why would there be an interest in taking into the Union a polity such as an independent Catalonia predicated on such a regressive and outmoded nationalist ethos which apparently cannot stomach the discipline of loyalty and solidarity that one would expect it owed to its fellow citizens in Spain? The very demand for independence from Spain, an independence from the need to work out political, social, cultural and economic differences within the Spanish polity, independence from the need to work through and transcend history, disqualifies morally and politically Catalonia and the likes as future Member States of the European Union.


Europe should not seem like a Nirvana for that form of irredentist Euro-tribalism which contradicts the deep values and needs of the Union. The assumption of automatic membership in the Union should be decisively squelched by the countries from whom secession is threatened and if their leaders, for internal political reasons, lack the courage so to say, by other Member States of the Union, France in the lead.


It would be hugely ironic if the prospect of membership in the Union ended up providing an incentive for an ethos of political disintegration. There really is a fundamental difference in the welcoming into the Union of a Spain or a Portugal or a Greece emerging from ugly and repressive dictatorships and a Catalonia, part of a functioning democracy which at this very moment is in need of the deepest expression of internal and external solidarity. In seeking separation, Catalonia would be betraying the very ideals of solidarity and human integration for which Europe stands.


I hope it never comes to it, but the only merit in a Catalonian referendum would be to allow the Catalans to have the good sense decisively to reject the proposal. If there is a referendum all Europeans should hope that that is what they will do. And if they do not – well, let us wish them a Bon Voyage in their separatist destiny.



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By on diciembre 17th, 2012

ITLOS order Ghana to release Argentine navy ship

ITLOS order Ghana to release Argentine navy ship


On 15 December, the International Tribunal for the Law of the Sea (ITLOS) ordered Ghana to release the Argentine military training vessel ARA Fragata Libertad (see oral proceedings). NML Capital, an investment company focused on distressed debt based in the Cayman Islands and owned by Elliot Associates, a US hedge fund, had earlier obtained an order from the Ghana Superior Court of Judicature (Commercial Division) to attach the Libertad moored in the port of Trema to satisfy a judgment by a US District Court for payment on defaulted Argentine bonds. The Libertad was on an official goodwill mission in Ghana’s internal waters at the time of the attachment.


As Matthew Happold and Michail Risvas discussed in their earlier EJIL!Talk posts, the jurisdiction of ITLOS to grant provisional measures in this case was by no means assured. The main jurisdictional hurdle for Argentina was that Article 32 UNCLOS (“nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes’), seemed to preserve the immunity of warships under customary international law, rather than UNCLOS providing for such immunity. Under Article 288 UNCLOS, compulsory jurisdiction of the ITLOS under Article 287 UNCLOS is limited to disputes concerning the ‘interpretation and application‘ of the UNCLOS. Against this background, the unanimous order by ITLOS (including ad hoc Judge Mensah appointed by Ghana) of last week for the unconditional release of the Libertad was unexpected.


The ITLOS offered little reasoning in support of its order, especially insofar as the requirements for provisional measures were concerned. Only 21 out of a total of 108 paragraphs concern the reasons for the order; the remainder recounts the procedural history and the arguments of Argentina and Ghana. The order merely refers obliquely to the “circumstances of the present case”, and concludes, with no reasoning, that the situation was urgent so as to require it to issue provisional measures. Judge Paik, in his declaration took the view that “the Order should be clearer in terms of how Argentina’s requests meets the [requirements of urgency and irreparability]” (though taking the view that these requirements were satisfied on the facts).


On its own jurisdiction, the Tribunal considered that Article 32, in view of the formulation “nothing in this Convention affects the immunities of warships”, applied generally and was not limited to the territorial sea (Article 32 is found in Part II of UNCLOS on the territorial sea and contiguous zone). The ITLOS observed that “some of the provisions i.e. Article 32] may be applicable to all maritime areas (para. 64). This possibility was sufficient to found the Tribunal’s prima facie jurisdiction to order provisional measures.


The Tribunal fails to mention Article 288 UNCLOS – Ghana’s central jurisdictional objection was that even if there was a dispute between Argentina and Ghana, it concerned general international law, rather than the interpretation or application of UNCLOS. The Tribunal observed at the outset that without doubt general international law provides for the immunity of warships (a point on which Ghana agreed). In light of the objective of peaceful settlement of disputes in Article 279 UNCLOS (without discussing the import of the limitation to disputes “concerning the interpretation or application of this Convention”), the Tribunal considered provisional measures justified on the basis that the attachment endangered the friendly relations between Ghana and Argentina. The Tribunal seemed to place weight on the incident of November 7 in particular when port officials sought to move the Libertad to a different berth in Tema port, implementing a court order, and briefly cut off water and electricity to the ship. Argentina responded by ordering its sailors to display weapons on deck. During the hearing, Ghana expressed its “sincere regret about the unfortunate events of 7 November 2012″ and added that the “port authorities sought to enforce the High Court order incompliance with their domestic law obligation to do so.”


The purpose for ordering jurisdictional measures in this case appears to have been to avoid any aggravation or extension of the dispute. The jurisprudence of the ICJ is divided on whether this is a separate ground for ordering provisional measures. In the Frontier Dispute, the ICJ affirmed that provisional measures may be granted in such circumstances:



The Court] by virtue of Article 41 of the Statute [has] the power to indicate provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that circumstances so require … Whereas, in particular, when two States jointly decide to have recourse to a chamber of the Court, the principal judicial organ of the United Nations, with a view to the peaceful settlement of a dispute, in accordance with Article 2, paragraph 3, and Article 33 of the Charter of the United Nations, and incidents subsequently occur which not merely are likely to extend or aggravate the dispute but comprise a resort to force which is irreconcilable with the principle of the peaceful settlement of international disputes, there can be no doubt of the Chamber’s power and duty to indicate, if need be, such provisional measures as may conduce to the due administration of justice.


However, the ICJ was unwilling to order provisional measures on this ground in Pulp Mills on the River Uruguay case (Judge Buergenthal favoured relying on a separate ground of avoiding aggravating or extending the dispute). Conversely, the Court relied on this rationale in Georgia v Russian Federation and Costa Rica v Nicaragua.


In their joint separate opinion, Judges Cot and Wolfrum took issue with the ITLOS’s cavalier approach to provisional measures, while agreeing with the operative part of the Tribunal’s order. The overall aim of their separate opinion was to limit the implications of the Tribunal’s order to this particular case. They took the view that the order did not take sufficient account of the ICJ’s settled jurisprudence on provisional measures, and they saw no reason to depart from that jurisprudence.


After noting that the ITLOS was issuing provisional measures in relation to a dispute pending before another international forum – the Annex VII tribunal, which implied that there was a need to exercise a degree of comity towards that tribunal, the two judges underscored in their separate opinion that the more clarity on the threshold for provisional measures was desirable. They placed particular emphasis on Article 288, limiting jurisdiction to the interpretation or application of the Convention – which they highlight was part of the compromis in return for compulsory dispute settlement under Part XV UNCLOS:



Any attempt to broaden the jurisdictional powers of the Tribunal and that of arbitral tribunals under Annex VII going beyond what is prescribed in article 288 of the Convention is not in keeping with the basic philosophy governing the dispute settlement system of the Convention. It undermines the Understanding reached at the Third UN Conference on the Law of the Sea, namely that the dispute settlement system under the Convention will be mandatory but limited as far as its scope is concerned. This limitation is not only reflected in the wording of article 288 of the Convention but equally in Section 3 of Part XV enumerating various limitations and exceptions. In our views this fundamental consideration has not been taken into account by the Order in interpreting Article 32.


They also underscored the need to distinguish issues of jurisdiction from applicable law – on which the Order fell short. Without consent, provisional measures infringed the sovereign rights of the respondent (para. 14). In their view, the immunity of warships in internal waters was not incorporated into UNCLOS. The ICJ’s jurisprudence pointed to the need to scrutinize the grounds advanced by the applicant state for provisional measures, and to “compare the jurisdictional basis with facts on which the claim of the applicant was based” (para. 13). An abstract evaluation was insufficient, and limited but careful scrutiny of the jurisdictional basis for provisional measures was required.


UNCLOS was based on the principle, reflected in many of its provisions, that the coastal state has sovereignty over internal waters. They find support for this conclusion in the legislative history of the Convention, the 1930 Hague Conference and the 1928 Stockholm Resolution of the Institut de droit international. They reject the Order’s presumption that “all activities of the coastal state in its internal waters and its ports are governed by the Convention and accordingly come under the jurisdiction of the Tribunal” (para. 34). As a result, they disagreed with the Order’s interpretation of Article 32 UNCLOS, on both the ground that it provides for immunity of warships and that it applies to internal waters.


Article 32, they explain, takes the immunity of warships for granted: “article 32 constitutes a reference rather than the regulation itself (para. 41). “It simply takes the immunity of warships as a fact.” (para. 50). Its basis was in customary international law, rather than in UNCLOS. They also concluded that Article 32 prima facie applies only in the territorial sea, rather than all maritime spaces.


Instead, they grounded the Tribunal’s jurisdiction on estoppel, finding that Ghana, due to various contradictions in its position, was estopped from objecting to the ITLOS’s jurisdiction: “Ghana, having given official assurances to Argentina as to the visit of the ARA Libertad in the port of Tema, cannot object today to a procedure ensuring implementation of the assurances” (para. 58). Argentina had not even relied on estoppel in its memorial or in the oral hearing. By contrast, Judge Rao pointed out in his separate opinion, that estoppel or waiver cannot “in and by itself afford a basis on which prima facie jurisdiction of the Annex VII tribunal might be funded” (para. 12).


Another salient issue in the case was that the government of Ghana had supported Argentina’s position in the domestic proceedings that the Libertad enjoyed immunity from enforcement. The government certified that the attachment of the ship would be in breach of sovereign immunity and interfered with the orderly conduct of Ghana’s international relations. Notwithstanding, the Court issued an order of attachment. Before the ITLOS, Ghana argued that it could not simply disregard the order of its domestic courts – to do so would violate its separation of powers and undermine the rule of law in Ghana. The ITLOS, however, did not accept that this argument could defeat Ghana’s international obligations. Under international law, Ghana was also responsible for all its organs, including its courts.


The relief granted by the ITLOS may also raise eyebrows. Though the ITLOS did not grant the full relief requested by Argentina in this provisional measures phase (including a salute to the Libertad when leaving the port), the unconditional release, “comes close, in substance, to the principal relief sought” by Argentina (Declaration Judge Paik, para. 8).  There is a fine line between virtually resolving the dispute and preserving the rights of the parties for the determination on the merits. The ITLOS, and Judge Paik, took the view that the unconditional release of the Libertad did not affect the rights or prejudice the rights of Ghana. This conclusion was based on Ghana and Argentina agreeing on the substantive question of immunity – and hence only the rights of the private party to the domestic proceedings, NML, were affected by the unconditional release of the vessel.


Notwithstanding this formal position, Ghana now faces a difficult choice. Thus far Ghana has reserved its position. It took “careful note of the Tribunal’s Order” and promises to “carefully consider the Tribunal’s Order with a view to ensuring that it is given effect, having regard to the requirements of the Constitution and the country’s international obligations.” It also expressed its regret that the matter had come to ITLOS in the first place. NML also dug in its heels, declaring that it was completely inappropriate for the International Tribunal for the Law of the Sea to attempt to interfere with orderly proceedings of the independent judiciary of Ghana.”


Ghana could comply with the order of ITLOS and release the Libertad promptly. This would mean violating an enforceable order of a domestic court while an appeal against that order is still pending in the domestic legal system. The consequences may not be limited to Ghana’s legal system. NML could request arbitration under the Ghana-UK BIT and bring a claim based on denial of justice against Ghana. The alternative is for the government of Ghana to let the domestic legal proceedings run their course (a hearing in the appeal is expected for January), thereby breaching its international legal obligation to accord immunity to the Libertad and defy the ITLOS order. Viewed from the perspective of compliance, the ITLOS’s broad reading of its jurisdiction on provisional measures is not without risks for the Tribunal.


For Argentina, by contrast, the successful request for provisional measures to ITLOS was an unqualified success. While it remains embroiled in a high-stakes dispute with NML in New York about the proper interpretation of the pari passu, the ITLOS gave it reason to celebrate. Hernán Lorenzo, Argentina’s economics minister, duly proclaimed victory in Argentina’s fight against vulture funds.


Should Ghana release the Libertad, the ship will receive a hero’s welcome in Buenos Aires. Once the Libertad has left the port of Tema, this particular asset will sail into the sunset, beyond the reaches of the Ghana’s courts. NML will not get another bite at this particular asset. In that sense, the provisional measures go very far. Nevertheless, the long-running war of attrition between Elliot Associates/NML and Argentina is bound to continue in courts around the world, wherever Argentine assets may be found.



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By on diciembre 11th, 2012

Obama Says U.S. Will Recognize Syrian Rebels

Obama Says U.S. Will Recognize Syrian Rebels

WASHINGTON — President Obama said Tuesday that the United States would formally recognize a coalition of Syrian opposition groups as that country’s legitimate representative, intensifying the pressure on President Bashar al-Assad to give up his bloody struggle to stay in power.

Mr. Obama’s announcement, in an interview with Barbara Walters of ABC News on the eve of a meeting in Morocco of the Syrian opposition leaders and their supporters, was widely expected. But it marks a new phase of American engagement in a bitter, nearly two-year-long conflict that has claimed at least 40,000 lives, threatened to destabilize the region, and defied all outside attempts to end it.

The announcement puts Washington’s political imprimatur on a once-disparate band of opposition groups, which have coalesced, under pressure from the United States and its allies, to develop what American officials say is a credible transitional plan to govern Syria if Mr. Assad is forced out.

Moreover, it draws an even sharper line between those elements of the opposition that the United States champions and those it rejects. The Obama administration coupled its recognition with the designation hours earlier of a militant Syrian rebel group, Al Nusra Front, as a foreign terrorist organization, affiliated with Al Qaeda.

“Not everybody who is participating on the ground in fighting Assad are people that we are comfortable with,” Mr. Obama said in an interview on the ABC program “20/20.” “There are some who I think have adopted an extremist agenda, an anti-U.S. agenda.”

But Mr. Obama praised the opposition, known formally as the National Coalition of Syrian Revolutionary and Opposition Forces, for what he said was its inclusiveness, its openness to various ethnic and religious groups, and its ties to local councils involved in the fighting against Mr. Assad’s security forces.

“At this point we have a well-organized-enough coalition — opposition coalition that is representative — that we can recognize them as the legitimate representative of the Syrian people,” he said.

For some experts on Syria, however, the question was whether Mr. Obama’s move was too little, too late. Britain, France, Turkey and the Gulf Cooperation Council have previously recognized the Syrian opposition. And the move does nothing to change the military equation inside Syria, where Mr. Assad has clung to power despite gains by rebel fighters.

Mr. Obama notably did not commit himself to providing arms to the rebels he is recognizing or to supporting them militarily with airstrikes or the establishment of a no-fly zone, a stance that has led to a rise of anti-American sentiment among many of the rebels.

The United States has played an active role behind the scenes in shaping the opposition, insisting that it be broadened and made more inclusive. But until Mr. Obama’s announcement on Tuesday, the United States had held off on formally recognizing the opposition coalition, asserting that it wanted to use the lure of recognition to encourage the rebel leaders to flesh out their political structure and fill important posts.

In recent weeks, the National Coalition of Syrian Revolutionary and Opposition Forces has been in the process of developing a series of committees on humanitarian assistance, education, health, judicial matters and security issues.

Mr. Obama’s statement was an acknowledgment that the opposition had made sufficient progress to merit recognition. The American hope is that the opposition, in conjunction with local councils that are being formed in Syria, could help govern areas that have been wrested from Mr. Assad’s control, provide public services like law enforcement and utilities, and perhaps even channel humanitarian assistance. Alluding to this role, Mr. Obama said that the opposition would “have some responsibilities to carry out.”

But Mr. Obama’s move does not go so far as to confer on the opposition the legal authority of a state. It does not, for example, recognize the opposition’s right to gain access to Syrian government money, take over the Syrian Embassy in Washington or enter into binding diplomatic commitments.

It is also unclear to what extent the move might influence the situation inside Syria, where the pace of the fighting appears to have intensified. A senior American official who is attending the meeting in Morocco said on Tuesday that none of the rebel military commanders from the Free Syrian Army would be attending the meeting on Wednesday.

“There are people here who definitely coordinate with armed groups, with the Free Syrian Army,” he said. “That is not to say they are giving instructions to it; they do not. It is not to say that they are telling it what to do or what to say in the international field; they are not. In a sense, the Free Syrian Army is a separate organization.”

Andrew J. Tabler, a senior fellow and a Syria expert at the Washington Institute for Near East Policy, said: “The recognition is designed as a political shot in the arm for the opposition. But it’s happening in the context of resentment among the Syrian opposition, especially armed elements, of the White House’s lack of assistance during the Syrian people’s hour of need. This is especially true among armed groups.”

 

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By on diciembre 06th, 2012

Self Determination and the Syrian Conflict – Recognition of Syrian Opposition as Sole Legitimate Representative of the Syrian People: What Does this Mean and What Implications Does it Have?

Self Determination and the Syrian Conflict – Recognition of Syrian Opposition as Sole Legitimate Representative of the Syrian People: What Does this Mean and What Implications Does it Have?


Last week, the United Kingdom recognised the umbrella Syrian opposition organization, National Coalition for Syrian Revolutionary and Opposition Forces (NCS) as the “sole legitimate representative of the Syrian people”. In so doing, the UK was following a number of other States have also recognised NCS as the legitimate or sole legitimate representative of the Syrian people. In the summer of 2011, many States also recognised the Libyan National  Transitional Council as the “[sole] legitimate representative of the Libyan people” prior to later recognising the Libyan NTC as the government of Libya (see previous EJIL:Talk! Post here and an example here). The question that arises with this recognition is: what does it mean to recognise an entity as the legitimate representative of the Syrian [or Libyan] people? Also, what are the implications of such recognition? Does this type of recognition operate only in the world of international politics, or does it have some legal basis?  More importantly, does this form of recognition have legal consequences?


In particular, I wish to examine In this post whether the recognition of NCS as legitimate representative of the Syrian people should be taken to mean that Syria is regarded as a case where the Syrian people are exercising their right of self-determination, through NCS. If that is so, what consequences might this have for actions that foreign States may take and what assistance, if any, might this entitle the Syrian opposition to?


Recognition as Legitimate Representatives and Recognition of Governments


It is important to note is that as was the case with Libya, the recognition of NCS as the sole legitimate representative of the Libyan people is not a recognition of NCS as the government of Syria. Furthermore this form of recognition does not without more indicate removal of recognition of Bashir Assad’s government as the government of Syria. Indeed, States continue to have diplomatic relations with Assad’s government and therefore continue to treat it as the government of Syria. [The position of France is unclear. It is reported as having received an Ambassador from the National Council but has referred to the Council as the future provisional government). Recognition as the sole legitimate representative is clearly intended to have political effects [see Stefan Talmon’s ASIL Insight]. In the first place, it is intended to indicate that the recognizing State regards the struggle by the group against the government of that State as legitimate. Furthermore, this recognition is also intended to provide legitimacy to the group in question, with recognition as the sole representative indicating that the recognizing State will only deal with that particular group in matters related to the struggle. The intent is usually to bolster the political position of the group recognised as the sole representative and to indicate that is the umbrella group under which others should coalesce. In the case of Syria, as was the case in Libya, this form of recognition appears to indicate that the recognizing States regard NCS a government in waiting and a group that is capable of taking over, at least on a transitional basis, from the Assad government, were it to fall (see British and French statements to this effect).


Self Determination and Previous Practice on Recognition as Legitimate Representatives


Perhaps the most interesting aspect of these acts of recognition of NCS (and the Libyan NTC) as the legitimate representative of their respective peoples is that it is very much reminiscent of the recognition of national liberation movements in occupied Palestine and in colonial African territories in the 1960s and 1970s. Movements like the Palestinian Liberation Organization (PLO), the African National Council (ANC) in South Africa; the South West Africa People’s Organization (SWAPO)  in Namibia; and the African Party for the Independence of Guinea and Cape Verde (PAIGC) in Guinea Bissau were all recognised as the legitimate(authentic or sole legitimate) representative of their respective peoples by the United Nations General Assembly. In some cases, for example, in Angola, South Africa and Mozambique, the Organization of African Unity recognized more than one group in each territory or country as legitimate representatives of the people.


In these previous cases, recognition of a group as legitimate representative of a people has come as part of the recognition that the people in question have a right to self-determination. As will be recalled, various international instruments, including Article (1) of the International Covenant of Civil and Political Rights (ICCPR) and of the International Covenant on Economic, Social and Cultural Rights (ICESCR), provide that :


“All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”


The right of self-determination is one that accrues to “peoples”. However, “peoples” can only exercise this right though some form of political structure.  Thus, in the decolonization era, the recognition of a group as a [the] legitimate representatives of the people indicates that the group speaks and acts for a people in the exercise of their rights. The close connection between self-determination and recognition as legitimate representative of a people can usually be seen from the UN General Assembly [UNGA] that grant this form of recognition. In the case of the PLO, UNGA Res 37/43 (1982) urged all States and international organizations:


“to extend their support to the Palestinian people through its sole and legitimate representative, the Palestinian Liberation Organization, in its struggle to regain its right to self-determination and independence in accordance with the Charter.”


In the cases indicated above, recognition of a group as legitimate representative of a people was given in the context of a non-self governing territory or in some other case where it was clearly acknowledged that the right of self-determination was engaged. In particular, it was accepted that this right applied to cases of colonial domination, alien occupation and racist regimes and it was in those cases that national liberation movements were recognised as legitimate representatives of people.


Recognition of the NCS as legitimate representative of the Syrian people (and also the Libyan case) therefore appears, at first sight, as being out of line with previous practice as they do not appear to be self-determination cases. These are not cases of colonial domination or alien occupation, nor are they cases of regimes thought to be racist. What is also interesting about the Syrian (and Libyan) cases is that Western countries which had generally opposed recognition of national liberation movements as legitimate representatives of people, are now using the term. In the decolonisation period, these States often abstained or voted against UN GA resolutions recognising national liberation movements as such. When UN GA Res 35/227 (1981) recognised SWAPO as the “sole and authentic representative of the Namibian people” and called on other states to render military and other assistance to the organization, Britain, France, West Germany, Canada and the United States protested that “[t]he people of Namibia have the right to choose their own Government through free and fair elections.”  It is ironic that some of these same countries are now following this precedent with regard to the Arab Spring.


Self Determination in Syria?


So, is the recognition of NCS as legitimate representative of the Syrian people be taken to mean that Syria is regarded as a case where the Syrian people are exercising their right of self-determination , through NCS? It is not clear whether recognizing are actually thinking in these terms, but this may well be the best to conceive of their actions. Although Syria is not a non-self governing territory or a case of a racist regime, this does not mean that the right of self-determination is not at play. It is well recognised that all the peoples of independent States continue to have the right of self-determination. This is the meaning that has been given to Article 1 of the ICCPR and of the ICESCR.


It is to be expected that the peoples of a State will determine their political future through participation in the political processes in that State. However, it is also plausible to conceive of the right of self-determination in an existing State being exercised through an armed struggle. The logic that emerges from previous practice on self-determination suggests that this is the case. In the first place, it is recognised that non-self governing territories may exercise their rights of self-determination through an armed struggle. This is an acceptance that an armed struggle could be a means of vindicating the right. Secondly, it is sometimes asserted (eg the Canadian Supreme Court in Re Secession of Quebec Case) that in cases where the right of internal self-determination (in the form of participation in the political process) is denied, a minority group would then have a right of external self-determination (i.e secession). This implies that where internal process for achieving internal self-determination have failed, a secondary right is created to seek self-determination by other means since secession would usually have to be achieved outside the political process, especially as we are speaking of cases where the political process has failed to allow for internal self-determination. In the case of minority groups, a conceptual problem with this assertion of a secondary right is that it is not clear how a group that does not hold the primary right of internal self-determination (which belongs to all peoples of the State) then become the holders of the secondary right. However, it seems more coherent to say that where all peoples of the State are being denied the primary right that same peoples then have a secondary right to seek to achieve self-determination by other means.


In short, Syria could be seen as a case where the Syrian peoples having failed to achieve internal self-determination by ordinary political means are now seeking to achieve self-determination by other means. The NCS would then be seen as the representative of the Syrian people in the sense of it being the [sole] political and military organization that is competent to speak and act for the people in the exercise of their right to self-determination.


To be clear, I do not mean to suggest that the analysis above is necessarily mine. What I am suggesting is that this analysis could be implied from the recognition of the NCS as the representatives of the people.


Consequences of Applying Self-Determination Framework to Syria


What consequences, if any, follow from thinking of Syria as a self-determination case, and more importantly of thinking of the recognition of the NCS as legitimate representatives of the Syrian people in terms of self-determination? Arguably the law relating to the use of force and relating to assistance that could be given in the case of an armed conflict would apply differently than might otherwise have been the case.


Ordinarily, international law prohibits intervention in the internal affairs of other States. Providing support to armed groups fighting against the government of a State would ordinarily fall foul of this principle. Moreover, the International Court of Justice has held in the Nicaragua case that while funding an armed opposition group in another State would violate the principle of non-intervention, providing arms to such a group would not only be an unlawful intervention but would also be a violation of the prohibition of the use of force contained in Article 2(4) of the UN Charter and in customary international law. It is interesting that the UK, the US and other western States have refrained to provide arms to the Syrian opposition but have been willing to provide other forms of assistance. No doubt, there are political reasons for this half hearted support but one wonders whether, at least on the part of the UK, there are doubts as to whether providing weapons would be a more egregrious form of illegality.


However, if Syria were considered a case of self-determination and the NCS and the Syrian opposition were considered to be fighting in a self-determination struggle, it is arguable that prohibition of non-intervention and the use of force applies differently. There is a reasonable case to be made that international law permit State support for groups fighting for self-determination and that permissible support includes provision of weapons. Certainly, there was extensive practice of States providing assistance, including weapons and other military assistance, to national liberation movements fighting in self-determination struggles against colonial or racist regimes. Although there was some opposition to this principle, principally by Western States, the General Assembly on a number of occasions affirmed the right of these movements to seek and receive assistance, including military assistance. It is again ironic that Western states that were least keen on providing assistance to national liberation movements that now speak quite openly about the possibility of arming groups they consider to be the legitimate representatives of peoples. The practice of the UN GA on this issue is set out by Brad Roth in the excellent chapter on self-determination in his book Governmental Illegitimacy in International Law (1999). The Declaration of Principles of International Law Concerning Friendly Relations (GA Res 2625, 1970) stated that in their actions against, and resistance to forcible efforts to deprive them of their right of self-determination, “peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter”. This resolution was adopted by consensus with the consequence that question of whether lawful support includes military support was left vague. However, on other occasions, the General Assembly has been more explicit. GA Res 3070 (1973) reaffirmed the legitimacy of “all available means, including armed struggle” and called for “moral, material and any other assistance to all struggling” for self-determination. Even more explicit was UN GA Res 35/227 (1981) which declared support for the “armed struggle of the Namibian people”, and called for “increased and sustained support and material, financial, military and other assistance to [SWAPO]” which was stated to be “the sole and authentic representative of the Namibian people”. Antonio Cassese in his book The Right of Self-Determination (pp. 199 and ff) also takes the view that international law permits States to supply weapons to national liberation movements fighting in a self-determination struggle.


However, if the rule which permits foreign support to those fighting for self-determination were extended to cases like Syria, i.e cases of opposition forces fighting against the government of an independent State, this exception to the principle of non-intervention and the prohibition of the use of force, threatens to swallow up the rule. One can easily foresee that States that wished to violate the two prohibitions preventing support for opposition groups would simply recognise those groups as legitimate representatives of the peoples concerned and then consider themselves free from the ban on providing support to opposition groups. This seems to be a powerful reason for being cautious about extending the rules derived from the colonial and analogous experience to the case of peoples aspiring to a secondary right of self-determination in independent States. Indeed, extending the rule to this sort of case would  go in the opposite direction from the rule sometimes put forward (eg by Louise Doswald Beck and Christine Gray) that in cases of “civil wars” assistance to both sides – government and opposition – is forbidden as that would be an interference in the exercise of self-determination of the people concerned. [Incidentally, the Syrian case is an example of lack of State support for this purported rule].


The practice which carves out an exception to the prohibition of the use of force and allows support to be given to national liberation movements which were recognised as the legitimate representatives of peoples entitled to the right of self-determination, was developed in the context of colonial domination, occupation and racist regimes. It is arguable that, in principle there is less reason to be concerned about intervention in internal affairs or force used against territorial integrity because in most of those cases (colonial and alien domination) the matter was not considered to be purely internal. However, one has to admit that this point of principle does not sit easily with the South African or Rhodesian experience, which were internal matters.


In conclusion, it is conceivable to consider the Syrian conflict as an example of peoples fighting to exercise their right of self determination.  Recognition of the NCS as the legitimate representative of the Syrian people might be regarded as recognition that a self-determination framework is applicable to Syria. Furthermore, one may even go so far as to say that in international law permits foreign States to aid national liberation movements recognised as the legitimate representatives of people fighting for self-determination and that this aid may include military aid. However, there are good reasons to restrict this last principle to cases of self-determination in the case of peoples fighting against colonial domination, alien occupation or racist regimes. Alternatively, it might that support ought only to be given to those groups that are collectively recognised by the international community as legitimate representatives of peoples fighting for self-determination. Such recognition should ideally be done by the UN General Assembly.



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By on diciembre 05th, 2012

Palestine, When is Your Birthday?

Palestine, When is Your Birthday?



lironpic


 Col. (Retired) Liron A. Libman, LL.M, is a former Head of the International Law Department of the Israeli Defense Forces.


On 29 November, in what some reports described as a historic vote, the UN General Assembly accorded to “Palestine” the status of a “non-member observer state” in the organization. The Palestinian Liberation Organization (PLO) has enjoyed an observer status in the UN since 1974. Since 1988 the PLO mission to the UN was designated “Palestine”. Therefore, the supposed novelty is the UN recognition of Palestine as a state.


I do not want to discuss here the question of Palestinian statehood itself: whether “Palestine” has the objective qualification of a state under international law. Rather, I want to concentrate on the Palestinian official view as to the date when the Palestinian state was established. Many states celebrate their national day on that date, so in simple words, I ask when will the Palestinians celebrate their Independence Day?


I start my inquiry with the epilogue of Dr. Abbas, chairperson of the PLO, in his speech to the General Assembly:



“Sixty-five years ago on this day, the United Nations General Assembly adopted resolution 181 (II), which partitioned the land of historic Palestine into two States and became the birth certificate for Israel.


The United Nations General Assembly is called upon today to issue the birth certificate of the reality of the State of Palestine.”


Dr. Abbas asked the General Assembly to grant a “birth certificate” to the state of Palestine. Taking this metaphor seriously, this implies that the Palestinian state already exists. To the best of my knowledge (as a father, if I may add), first, a child is born and only afterwards can the happy parents receive a birth certificate. The certificate is an official acknowledgement of a fait accompli.


However, Dr. Abbas paralleled the resolution he asks for with General Assembly resolution 181(II) of 29 November 1947, which he views as the birth certificate of the state of Israel. The problem is that clearly resolution 181(II) did not recognize an existing state of Israel, but rather recommended the future establishment of a Jewish state (alongside an Arab state) upon the termination of the British Mandate. The resolution even set a timetable for the coming into existence of the two future states.  Israel was established only about six months later, on 14 May 1948, when the Jewish People’s Council approved the Declaration of the establishment of the state of Israel. Clearly, resolution 181(II) was not the birth certificate of the state of Israel.



Perhaps, one might say, the metaphor of a birth certificate is unsuitable, so let us stick to the intention expressed to follow the precedent of resolution 181(II) and its relation to the establishment of the state of Israel. Thus, what the Palestinians were asking the General Assembly is to confer international legitimacy upon the future establishment of a Palestinian state, one not yet existing.


This interpretation is aligned with other expressions in Dr. Abbas’s speech, such as:



“We came to affirm the legitimacy of the State that must now achieve its independence, and that is Palestine.”


My emphasis is on the word “now”, suggesting that Palestine is not yet an independent state.


In addition, elsewhere in the speech I found this rhetorical question:



“Are we a surplus people, or is there a state which is missing which must be embodied on its land, which is Palestine.”


“A state that is missing” in other words, a state that still does not exist, but ought to exist.


But things are not so easy. Elsewhere in the speech, Dr. Abbas refers to the 1988  Palestine National Council Declaration of Independence, which was “adopted by your august body“. This declaration solemnly proclaims:



“The Palestine National Council hereby declares, in the Name of God and on behalf of the Palestinian Arab people, the establishment of the State of Palestine in the land of Palestine with its capital at Jerusalem.”


Dr. Abbas rightfully notes that this declaration was acknowledged by the General Assembly (in resolution 43/177 of December 15, 1988).  Since that resolution, the designation “Palestine” is used instead of “PLO” for the Palestinian mission to the UN.


Therefore, perhaps a Palestinian state has existed since the Palestinian National Council Declaration of independence in 1988? However, if so, the General Assembly already acknowledged it more than twenty years ago. What did Dr. Abbas want now?


Maybe he is well aware that in 1988, it was clear that the PLO, with its headquarters in Tunisia, had none of the qualifications of a state, as prescribed in the 1933 Montevideo Convention on the rights and duties of states: a permanent population, a defined territory, government and the capacity to enter into relations with the other states.  UN recognition at that time could not by itself create a state not existing in reality.


Today the situation on the ground is different. Dr.  Abbas heads the Palestinian authority, created by the Oslo Accords with Israel and exercising at least some degree of self-government in the West Bank. This does not mean there are not some serious doubts as to Palestinian qualifications for statehood, just that it is clear that the Palestinian case is better today than in 1988, possibly justifying, in the Palestinian view, reiterating UN recognition of statehood.


Still, if it is clear that, in 1988, Palestine was not really a state, and now the Palestinians contend it is, when exactly did this change occur?


You would not find a clear answer in Dr. Abbas’s speech, or in other Palestinian actions and statements.  For example, take the Palestinian National Authority’s 2009 plan for constructing the institutions of an independent Palestinian State within a two-year period, mentioned in the UN resolution adopted after Abbas’s speech. This plan clearly indicates that, at least before 2011, even the Palestinians did not think they were prepared for statehood.


Confused? Rightfully so. It is not clear whether the Palestinians asked the UN to confer legitimacy upon the future establishment of a state of Palestine, or whether they asked just recognition by the UN of an existing Palestinian state, and if the latter is true, when the Palestinian state was established, in the Palestinians’ own view.


This is not a formalistic, legalistic or marginal question. States are still the principal actors in the international sphere. The international community deserves certainty, at least as to the status claimed by other international actors. I claim that this ambiguity is not an accident, nor an indication of drafting incompetence. The Palestinians have a very abled and experienced legal team and did not hesitate in the past to consult top foreign international law experts. This ambiguity must be deliberate.


I dare to speculate about the motive behind this evasiveness: assuming statehood, unlike demanding the right to establish a state, has considerable burdens. States are not just the bearers of rights in the international sphere, but also the bearers of some heavy duties.


For example, a state has a duty, recognized in UN General Assembly resolution 2625 (XXV), to refrain from acquiescing in organized activities within its territory directed towards the commission of  terrorist acts in another State. What does this mean for Ramallah’s responsibility for Hamas missile attacks from Gaza, part of the Palestinian territory claimed, deliberately aimed against Israeli civilian communities?


Furthermore, under article 11 of the ILC Draft articles on Responsibility of States for Internationally Wrongful Acts, states may be responsible for acts they did not direct, if they acknowledged and adopted them as their own after the fact. Dr. Abbas sent one of his top officials, Mr. Nabil Shaath, to a Hamas “victory” rally in Gaza, after the latest round of hostilities. Mr. Shaath described Palestinian unity and praised the “armed resistance”. Does this mean that the state of Palestine acknowledged and adopted the war crimes perpetrated by Hamas?


Indeed, statehood is a responsibility. As long as Palestinians themselves avoid this responsibility, in statements and in actions, the adoption of UN resolutions can be no more than a symbolic victory in the diplomatic sphere, with no consequences on the ground. Self-determination is not just a right, but also, sometimes, an obligation to decide and take risks.



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By on diciembre 04th, 2012

Does General Assembly Resolution 67/19 Have Any Implications for the Legal Status of Palestine?

Does General Assembly Resolution 67/19 Have Any Implications for the Legal Status of Palestine?




Jure Vidmar is Leverhulme Early Career Fellow in the Faculty of Law, and Research Fellow at St Johns College, University of Oxford. He has written widely on the process of State creation (see SSRN page here), including: ‘Explaining the Legal Effects of Recognition’ (2012) International and Comparative Law Quarterly 361.


On 29 November 2012, with 138 votes in favour, nine against and forty-one abstentions, the General Assembly adopted Resolution 67/19, which, inter alia, “accord[ed] to Palestine non-member observer State status in the United Nations…” This post considers whether the vote in the General Assembly objectively confirms that Palestine is a state and/or whether the General Assembly on 29 November 2012, in fact, created a new state (a matter considered briefly by Dapo at the end of his post on the Resolution). In essence, did the Resolution change anything in terms of legal status and did Palestine on 29 November become more of a state than it was on 28 November? The post thus narrowly focuses on the implications of Resolution 67/19; it does not intend to clarify Palestine’s legal status in general.


In this instance, Palestine’s legal status could be implicitly clarified in two ways. One way would be if the Resolution meant admission to the international organisation, which prescribes statehood as a prerequisite for membership. The other possibility is that by voting for the Resolution which accords “to Palestine non-member observer State status” [emphasis added], those states voting in favour implicitly recognised Palestine as a state. Indeed, the Resolution here says that Palestine is a state. What is the legal significance of this phrasing and of the fact that 138 states are happy with it? Did the 138 states voting in favour thus create a state by (implicit) recognition or at least confirm Palestine’s legal status?This post will argue that the General Assembly resolution itself and the voting behaviour of states neither altered nor clarified the legal status of Palestine. On 29 November 2012, Palestine did not become more or less of a state than it was before. The Resolution may well be a significant step in an internationalised political process which could ultimately clarify and settle Palestine’s legal status. But the Resolution of 29 November 2012 does not have any direct legal implications for Palestine’s statehood. 


Statehood through the UN?


Article 4(1) of the UN Charter provides: “Membership in the United Nations is open to all … peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.” [emphasis added].


While non-membership of the UN does not automatically mean that the entity in question is not a state, membership can confirm the status of a state implicitly. This is because membership is only open to states. Thus, had Palestine on 29 November 2012 become a member of the UN, this would implicitly mean that it is a state. But it did not become a member of the UN.


While UN membership implicitly confirms an entity’s statehood, the same cannot be said for the status of an observer state. This status is not foreseen by the UN Charter; it has rather developed through practice. Since nothing in the Charter says that observer status would be ‘open to all peace-loving states’, this status cannot not have implicit effects analogous to those of full UN membership. This can be further confirmed by reference to treaty law. The UN Charter is a (virtually) universal treaty which only allows states to become parties to it. On 29 November 2012, Palestine did not become a party to this treaty.


It is also worth mentioning that throughout history the status of non-member states has been granted to some entities for which it is at least debatable whether or not they really were states at the time. Was Austria a state in 1952? Was Bangladesh doubtlessly a state in 1973? Not to mention the difficult example of South Vietnam. It would be beyond the scope of this contribution to discuss these issues further. Suffice it to say that historically the status of non-member states has been granted not only to clear cases such as Switzerland prior to 2002, but also to entities whose legal status was – at the time – not settled.


The conclusion that follows in this part is that on 29 November 2012, Palestine did not become a member of an international organisation which prescribes statehood as a prerequisite for membership and it did not become a party to a (virtually universal) multilateral treaty which allows only states to become parties to it. Consequently, the statehood of Palestine was neither implicitly created nor confirmed via an international organisation or an international treaty. Moreover, some historic practice may well indicate that the status of a non-member state has been accorded even to entities for which it was not entirely settled at the time whether or not they were states.


Statehood through recognition?


While the General Assembly resolution unto itself has no legal effect, the same cannot necessarily be said of voting in the General Assembly. In this case, the vote for Palestine’s status of an observer state could mean that states which voted in favour implicitly recognise Palestine as a state. Did 138 states voting in favour create a state or at least confirm that Palestine is a state?


Doctrinally, this argument could be problematic from the perspective that recognition is declaratory. But the declaratory nature of recognition should not be taken as a dogma. Writings on this topic often seem to conflate two things that should be separated: (i) non-recognised states can exist; but, (ii) irrespective of that, sometimes (universal) recognition can create a state.


Non-recognised states have indeed existed before (e.g. Macedonia) and there was no doubt they were states. But to say that non-recognised states can exist is not the same as saying that under some circumstances statehood may depend on recognition. These are two different legal situations. In the Quebec case, the Supreme Court of Canada held that where secession is unilateral, its ultimate success would depend on international recognition (The Quebec case, para 155).


In the UN Charter period, international acceptance of a unilateral claim to independence is very rare in practice. However, if recognition were near-universal, this could have the effects of a collective state creation. Kosovo is a difficult example. With ninety-six recognitions to date, it is impossible objectively to determine its legal status. For some it is a state, for others it is not. It thus seems that recognition which is widespread – yet not universal – created at least ambiguity with regard to its legal status. And this ambiguity may only be clarified over time, as was the legal status of Bangladesh; if we read history backwards, knowing how its legal status was ultimately settled. But what if we were asked back in 1973, that is, before Pakistan accepted Bangladesh’s independence and before the latter’s admission to full membership of the UN? Objectively, we could only say that its legal status was ambiguous.


What does this tell us about Palestine? It is doctrinally acceptable that near-universal recognition could have the effects of a collective state creation. However, the Resolution was adopted with 138 votes in favour, nine against and forty-one abstentions. The preamble of the Resolution affirms that 132 members of the UN had recognised Palestine as a state before. In essence, on 29 November 2012, the number of recognitions (implicitly) went up for a few more states. Does this push Palestine over the threshold of recognitions that are required for statehood? This can hardly be the case.


If we accept that recognition can sometimes have constitutive effects, we, of course, also accept the old problem of the constitutive theory: how many and whose recognitions are necessary? There is no answer to this challenge but, as argued earlier, universal or near-universal recognition could have effects of a collective state creation. And (implicit) recognition of Palestine on 29 November 2012 does not seem to be more universal or near-universal than before that date. In effect, even from the perspective of (implicit) recognition, the Resolution neither alters nor objectively clarifies the legal status of Palestine.



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By on diciembre 03rd, 2012

Palestine as a UN Observer State: Does this Make Palestine a State?

Palestine as a UN Observer State: Does this Make Palestine a State?


Last week, the UN General Assembly voted by 138 to 9 (with 41 abstaining) “to accord to Palestine non-member observer State status in the United Nations”. Thus, Palestine which has been an observer at the UN since 1974 has had its status within the UN upgraded to being an observer State. There has been much euphoria on one side as a result of this decision, and dismay on the other side. However, what are the implications, if any, of this decision. It is thought that one reason why Israel opposed the change, though it asserts that the decision achieves nothing, is that characterising the Palestinian as an observer State would give Palestine access to legal, particularly judicial, remedies that it otherwise would not have (see BBC Q & A report here). It was reported that the United Kingdom, which in the end abstained from voting, was prepared to vote in favour of the resolution, if Palestine had been prepared to pledge not to ratify the Rome Statute of the ICC or to seek to utilise the International Court of Justice. So though the granting of observer Status does not change “the facts on the ground”, it is thought that it would change the legal position of Palestine under international law. But does it? Are there new legal options open to Palestine as a result of the resolution and does the resolution constitute Palestine as a State?


Any student of international law will be familiar with the debate between the declaratory theory of recognition of States and the constitutive theory. Theory, practice and judicial decisions favour the declaratory theory and assert that recognition does not create Statehood. Although last week’s decision does not grant Palestine membership of the UN (which would require Security Council approval), the decision to grant observer State status to Palestine is an act of collective recognition of the statehood of Palestine. If that decision is capable of effecting the legal changes hoped for (by proponents) or feared (by those oppose the decision), this will provide strong support to the view that collective recognition is capable of creating Statehood.


Palestine and the ICC


Does the grant by the General Assembly of observer State status to Palestine mean that it is now possible for Palestine to ratify the ICC Statute? The short answer to this question is yes. However, the longer answer is that Palestine could have ratified the Statute prior to the General Assembly decision. As readers will recall, Palestine made a declaration in January 2009 recognising the jurisdiction of the ICC under Article 12(3) of the ICC Statute which applies to States not party to the Rome Statute. The ICC Prosecutor decided in April that it was not for him to decide on the validity of the Palestinian declaration but that it was up to the UN Secretary General to make the determination whether Palestine was a State that could make the Art. 12(3) declaration or that could ratify the Statute (see my previous post criticising the Prosecutor’s decision as well as Bill Schabas’ post on his blog). Past practice on whether an entity fails within the terms of a treaty provision that says that “all States” are entitled to ratify that treaty indicates that the Secretary General will consider an entity to be a State where it falls within the “Vienna formula” or where the General Assembly indicates to the SG that it considers the entity a State (see Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev. 1, para 81, and the Opinion of the UN Legal Counsel of Feb. 1974) . The General Assembly decision that Palestine is an observer State will be sufficient indication to the SG that Palestine is a State and on that basis it is clear that Palestine can ratify the Rome Statute.


However, even prior to last week, Palestine fell within the Vienna formula and would have been regarded as entitled to ratify the Rome Statute. The Vienna formula indicates that an entity is to be regarded as a State entitled to ratify treaties open to all States, where that entity is a member of the UN or a UN specialised agency (or the International Atomic Energy Agency) or where it is a party to the Statute of the International Court of Justice. Palestine was already a member of one UN agency – UNESCO (see here) . In the past, the SG has been prepared to accept membership of a UN specialised agency as indicating that an entity is a State since the membership of such agencies is similar to membership of the UN General Assembly. Thus, acceptance of an entity as a State member of such an agency means that the entity is likely to be regarded as a State by the General Assembly and the SG need not look for actual General Assembly approval.


Palestine and the ICJ


As with the ICC, the recognition by the GA of observer State status to Palestine also makes it clear that Palestine can ratify the Statute of the International Court of Justice. However, as with the ICC, Palestine was able to ratify the ICJ Statute prior to this decision. Although the ICJ Statute is annexed to the UN Charter and membership of the UN automatically constitutes a State as a party to the ICJ Statute, a State can become a party to the Statute without becoming a party to the UN Charter. Many States became parties to the Statute before becoming members of the UN (eg, Switzerland, Nauru, Italy).


It is also important to remember that it is not just parties to the Statute of the ICJ that are entitled to use the Court. Art. 35(2) of the ICJ Statute provides that Court is open to States not party to the Statute, but only on conditions laid down by the Security Council. So Palestine can use the Court if it fulfil conditions laid down by the Council. Rather than laying down conditions for use by non-parties on a case by case basis, the Council has in SC Res 6 (1946) laid down general conditions that must be met by the non-party. So Palestine would not need to get specific council authorization to use the ICJ. Under SC Res. 6, the ICJ is open to a State not party to the Statute, if it has:



“ . . . deposited with the Registrar of the Court a declaration by which it accepts the jurisdiction of the Court, in accordance with the Charter of the United Nations and with the terms and subject to the conditions of the Statute and Rules of the Court, and undertakes to comply in good faith with the decision or decisions of the Court and to accept all the obligations of a Member of the United Nations under Article 94 of the Charter.”


According to paragraph 2 of that resolution, a declaration by a non-State party accepting the jurisdiction of the ICJ may either be particular (dealing with particular disputes) or general (dealing with all disputes or classes of disputes). A general declaration may be made as under Art. 36(2) of the ICJ Statute (the optional clause providing for compulsory jurisdiction) but such a declaration may not be relied on vis-à-vis parties to the ICJ Statute.


In short Art. 35(2) of the ICJ Statute and the conditions laid down by the SC are analogous to the declaration Palestine has made under Art. 12(3) of the ICC Statute.


However, saying that Palestine can use the ICJ does not mean that it can use it with respect to (or against?) Israel. For there to be a case between Palestine and Israel at the ICJ, there would still need to be a specific basis for jurisdiction. Israel does not accept the compulsory jurisdiction of the ICJ so the only way in which Palestine could initiate a case against Israel would be were there was a special agreement between the two to go to the ICJ by special agreement (hardly likely at the moment) or where some other treaty to which both are party gives the ICJ jurisdiction. So in addition to ratifying the ICJ Statute or making the declaration called for under SC Res. 6, Palestine would need to ratify a treaty to which Israel was party which also gave the ICJ jurisdiction. It is not clear what treaties would fall within that category.


The UN and Collective Recognition


Thinking more broadly than the position of Palestine before the ICC and the ICJ, one question that is raised by the recent action of General Assembly is whether Palestine should now be regarded, under international law, as a State for all questions for which that is relevant. The declaratory theory of recognition posits that recognition is at best declaratory of an existing Statehood and is neither required for the creation of, nor does it constitute Statehood. Under this theory, what is required for Statehood is the fulfilment of objective criteria for Statehood, under the Montevideo Convention and perhaps also under additional legal criteria. The declaratory theory of recognition is generally to be preferred (and is generally preferred) to its rival, the constitutive theory. However, acceptance of the declaratory theory should not be taken to mean that recognition is never constitutive. A distinction should be drawn between individual recognition and collective recognition.


Collective recognition, particularly collective recognition adopted within the institutional framework of the UN can have a constitutive effect (as explained in this recent paper by my Oxford colleague Jure Vidmar). For one thing, as has already been examined above, such collective recognition can have important constitutive effects within international institutions such that an entity that is collectively recognised is then treated as a State within international institutions where questions of statehood are relevant. Indeed one may argue that collective recognition should be constitutive because it amounts to a waiver by the international community of defects which may otherwise exist in claims of Statehood. In addition, it is a mechanism by which the international community can give effect to important community values that may affect claims of Statehood. For example, collective recognition of an entity that possesses the right to self-determination but does not possess an effective government or whose independence is in doubt, may be seen as a way of giving effect to the importance of the self-determination claim over and above the claims of effectiveness.


So, there are good reasons for arguing that Palestine is indeed a State under international law because of collective recognition. However, again this is not to say that it is the GA action which necessarily brought this about – the UNESCO vote was also an act of collective recognition. Also, Palestine was already recognised by 132 states before the GA vote. For now, I am unsure about whether to regard collective recognition on the basis of an aggregate of individual recognitions as the same as a single concerted act of collective recognition. I have also left unclear precisely what we should regard as collective recognition. However, I would suggest that where only 9 States oppose the act of recognition, we have collective recognition even though over 40 abstained.



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By on noviembre 29th, 2012

Status of Palestine in the United Nations (A/RES/67/19) Full Text

Status of Palestine in the United Nations

Voting record

 

           The General Assembly,

           Guided by the purposes and principles of the Charter of the United Nations, and stressing in this regard the principle of equal rights and self-determination of peoples,

           Recalling its resolution 2625 (XXV) of 24 October 1970,[1] by which it affirmed, inter alia, the duty of every State to promote through joint and separate action the realization of the principle of equal rights and self-determination of peoples,

           Stressing the importance of maintaining and strengthening international peace founded upon freedom, equality, justice and respect for fundamental human rights,

           Recalling its resolution 181 (II) of 29 November 1947,

           Reaffirming the principle, set out in the Charter, of the inadmissibility of the acquisition of territory by force,

           Reaffirming also relevant Security Council resolutions, including, inter alia, resolutions 242 (1967) of 22 November 1967, 338 (1973) of 22 October 1973,
446 (1979) of 22 March 1979, 478 (1980) of 20 August 1980, 1397 (2002) of 12 March 2002, 1515 (2003) of 19 November 2003 and 1850 (2008) of 16 December 2008,

           Reaffirming further the applicability of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949,[2] to the Occupied Palestinian Territory, including East Jerusalem, including, inter alia, with regard to the matter of prisoners,

           Reaffirming its resolution 3236 (XXIX) of 22 November 1974 and all relevant resolutions, including resolution 66/146 of 19 December 2011, reaffirming the right of the Palestinian people to self-determination, including the right to their independent State of Palestine,

           Reaffirming also its resolutions 43/176 of 15 December 1988 and 66/17 of 30 November 2011 and all relevant resolutions regarding the Peaceful settlement of the question of Palestine, which, inter alia, stress the need for the withdrawal of Israel from the Palestinian territory occupied since 1967, including East Jerusalem, the realization of the inalienable rights of the Palestinian people, primarily the right to self-determination and the right to their independent State, a just resolution of the problem of the Palestine refugees in conformity with resolution 194 (III) of 11 December 1948 and the complete cessation of all Israeli settlement activities in the Occupied Palestinian Territory, including East Jerusalem,

           Reaffirming further its resolution 66/18 of 30 November 2011 and all relevant resolutions regarding the status of Jerusalem, bearing in mind that the annexation of East Jerusalem is not recognized by the international community, and emphasizing the need for a way to be found through negotiations to resolve the status of Jerusalem as the capital of two States,

           Recalling the advisory opinion of the International Court of Justice of 9 July 2004,[3]

           Reaffirming its resolution 58/292 of 6 May 2004, affirming, inter alia, that the status of the Palestinian territory occupied since 1967, including East Jerusalem, remains one of military occupation and that, in accordance with international law and relevant United Nations resolutions, the Palestinian people have the right to self-determination and to sovereignty over their territory,

           Recalling its resolutions 3210 (XXIX) of 14 October 1974 and 3237 (XXIX) of 22 November 1974, by which, respectively, the Palestine Liberation Organization was invited to participate in the deliberations of the General Assembly as the representative of the Palestinian people and was granted observer status,

           Recalling also its resolution 43/177 of 15 December 1988, by which it, inter alia, acknowledged the proclamation of the State of Palestine by the Palestine National Council on 15 November 1988 and decided that the designation “Palestine” should be used in place of the designation “Palestine Liberation Organization” in the United Nations system, without prejudice to the observer status and functions of the Palestine Liberation Organization within the United Nations system,

           Taking into consideration that the Executive Committee of the Palestine Liberation Organization, in accordance with a decision by the Palestine National Council, is entrusted with the powers and responsibilities of the Provisional Government of the State of Palestine,[4]

           Recalling its resolution 52/250 of 7 July 1998, by which additional rights and privileges were accorded to Palestine in its capacity as observer,

           Recalling also the Arab Peace Initiative adopted in March 2002 by the Council of the League of Arab States,[5]

           Reaffirming its commitment, in accordance with international law, to the two-State solution of an independent, sovereign, democratic, viable and contiguous State of Palestine living side by side with Israel in peace and security on the basis of the pre-1967 borders,

           Bearing in mind the mutual recognition of 9 September 1993 between the Government of the State of Israel and the Palestine Liberation Organization, the representative of the Palestinian people,[6]

           Affirming the right of all States in the region to live in peace within secure and internationally recognized borders,

           Commending the Palestinian National Authority’s 2009 plan for constructing the institutions of an independent Palestinian State within a two-year period, and welcoming the positive assessments in this regard about readiness for statehood by the World Bank, the United Nations and the International Monetary Fund and as reflected in the Ad Hoc Liaison Committee Chair conclusions of April 2011 and subsequent Chair conclusions, which determined that the Palestinian Authority is above the threshold for a functioning State in key sectors studied,

           Recognizing that full membership is enjoyed by Palestine in the United Nations Educational, Scientific and Cultural Organization, the Economic and Social Commission for Western Asia and the Group of Asia-Pacific States and that Palestine is also a full member of the League of Arab States, the Movement of Non‑Aligned Countries, the Organization of Islamic Cooperation and the Group of 77 and China,

           Recognizing also that, to date, 132 States Members of the United Nations have accorded recognition to the State of Palestine,

           Taking note of the 11 November 2011 report of the Security Council Committee on the Admission of New Members,[7]

           Stressing the permanent responsibility of the United Nations towards the question of Palestine until it is satisfactorily resolved in all its aspects,

           Reaffirming the principle of universality of membership of the United Nations,

           1.       Reaffirms the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967;

           2.       Decides to accord to Palestine non-member observer State status in the United Nations, without prejudice to the acquired rights, privileges and role of the Palestine Liberation Organization in the United Nations as the representative of the Palestinian people, in accordance with the relevant resolutions and practice;

           3.       Expresses the hope that the Security Council will consider favourably the application submitted on 23 September 2011 by the State of Palestine for admission to full membership in the United Nations;[8]

           4.       Affirms its determination to contribute to the achievement of the inalienable rights of the Palestinian people and the attainment of a peaceful settlement in the Middle East that ends the occupation that began in 1967 and fulfils the vision of two States: an independent, sovereign, democratic, contiguous and viable State of Palestine living side by side in peace and security with Israel on the basis of the pre-1967 borders;

           5.       Expresses the urgent need for the resumption and acceleration of negotiations within the Middle East peace process based on the relevant United Nations resolutions, the terms of reference of the Madrid Conference, including the principle of land for peace, the Arab Peace Initiative5 and the Quartet road map to a permanent two-State solution to the Israeli-Palestinian conflict[9] for the achievement of a just, lasting and comprehensive peace settlement between the Palestinian and Israeli sides that resolves all outstanding core issues, namely the Palestine refugees, Jerusalem, settlements, borders, security and water;

           6.       Urges all States, the specialized agencies and organizations of the United Nations system to continue to support and assist the Palestinian people in the early realization of their right to self-determination, independence and freedom;

           7.       Requests the Secretary-General to take the necessary measures to implement the present resolution and to report to the Assembly within three months on progress made in this regard.

 

          [1]            Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.

          [2]            United Nations, Treaty Series, vol. 75, No. 973.

          [3]            See A/ES-10/273 and Corr.1; see also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136.

          [4]            See A/43/928, annex.

          [5]            A/56/1026-S/2002/932, annex II, resolution 14/221.

          [6]            See A/48/486-S/26560, annex.

          [7]            S/2011/705.

          [8]            A/66/371-S/2011/592, annex I.

          [9]            S/2003/529, annex.

 

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