Archive for category General International Law
Those pesky American neo-cons have done it again!
As Peter Spiro writes over at Opinio Juris, the oh-so-very-conservative think tank the Heritage Foundation has published a new “report,” or rather “pamphlet” – to use the term adequately used by Peter Spiro – on American Sovereignty and why it is important.
The Report is presented on what appears to be (I have to admit I am not a regular visitor) the in-house Heritage Foundation blog, ‘The Foundry’. The author of the post, Anna Leutheuser, presents the purpose of the report: to raise the alarm about American sovereignty “under attack”:
As Groves illustrates, our sovereignty is still under attack today, though through less overt means: “International organizations and courts seek to reshape the international system. Nations are to give up their sovereignty and be governed by a ‘global consensus.’ Independent, sovereign nations will be replaced by ‘Transnational’ organizations that reject national sovereignty.” This trend is evident everywhere, and will not be halted without a renewed attachment to the idea of American sovereignty.
Oh, dear. And check out the cover of the report of Uncle Sam tied down like Gulliver by the Lilliputians (I’m guessing that’s the evil foreigners trying to force treaties down the United States’ unwilling throat…):
As one journalist states – and I agree – “…the United States of America has the moral duty and legal obligation to go after each and every one of those involved in the illegal acts of butchery in Afghanistan and Iraq, following up and holding them responsible for the consequences of these acts and holding accountable each and every person involved in the decision-making process, however high their position in the pyramid may have been.” The notion of command responsibility seems conveniently absent from the minds of American policy-makers. According to a report by Human Rights Watch, “a wall of impunity surrounds the architects of the policies responsible for the larger pattern of abuses.”
Ah. Let us take a moment to re-read that last sentence. This time focus on the word “architect”. Architect…perhaps as in, Karl Rove, widely known as “The Architect” for Bush’s reelection and subsequent policies? Read the rest of this entry »
It’s no secret that the majority of sexual abuse claims regarding the Catholic Church have failed to be investigated by either legal authorities or the Church itself, but the Pope’s recent trip to the UK has spurned a debate of, shall we say, almighty proportions.
In a letter to the Catholics of Ireland dated 19 March 2010, Pope Benedict XVI wrote:
“To priests and religious who have abused children: You betrayed the trust that was placed in you by innocent young people and their parents, and you must answer for it before Almighty God and before properly constituted tribunals.”
What “tribunal” is he talking about? Can the Pope himself be charged with anything? What about the entire Holy See, or a representative, as suggested by Patrick Wall, an American lawyer and former Benedictine monk? Read the rest of this entry »
These days, I’m a little overwhelmed with my work at the CICC and my LLM dissertation that is due in two weeks. So instead of giving you a full-fledged entry tonight, I thought of doing a little blog review. I’ve been reading a lot of interesting stuff lately, and for lack of reflecting on an entire issue, I thought I’d share and comment a little on a few posts out there in the blogosphere.
First of all, Alex Lobov’s post at Zeitgeist Politics is an interesting read and sums-up well Sakineh Mohammadi Ashtiani’s ordeal in Iran, sentenced to death by stoning, and culminates with a plea against the death penalty in the United States and in the world. Here is an excerpt:
“Sakineh Mohammadi Ashtiani is a young Iranian woman who was sentenced to death by stoning in Iran, a sentence that sparked an international outcry over a practice that many see as archaic and barbaric. Since the initial sentence was handed down, the twists and turns in events since then have moved rapidly.
The initial sentence was handed down by a court in Tabriz in May 2006, she was charged with committing adultery (despite the alleged incident occurring after the death of her husband) and was sentenced to 99 lashes, which was carried out. Then, in September she was convicted by another court, the details of which are still rather shaky, of adultery and of being an accomplice in the murder of her husband. But wait, is she being put to death for adultery? Or for murder? Or for both?“
I’ve been thinking of using this story to write a post about international law and the death penalty, but I have not had time as of yet. Stay tuned: maybe I’ll find time this weekend.
Secondly, a very interesting story by Colum Lynch in his Foreign Policy Turtle Bay blog about the Tea Party in the United States and their rather “hostile” (something of an understatement) attitude towards the United Nations. Going far beyond the obvious, Colum Lynch tracks back the roots of the American heartland’s hostility to the UN and multilateralism in general, ever since the days of Founding Father George Washington. Read the rest of this entry »
Last week, the International Court of Justice delivered its advisory opinion (PDF file) on the legality of Kosovo’s declaration of independence. It considered that Kosovo’s declaration of independence was not illegal but did not go as far as officially recognizing Kosovo’s independence in a positive manner. This caused a lot of confusion for many people – including the mainstream media – trying to understand what the ICJ said. This post attempts to clarify what the Court said, why it said what it said, and what the consequences are.
As Justine has noted in her post a few days ago, paragraph 56 is particularly interesting in its display of how the Court defined the question (it goes without saying that the emphasis is mine):
56. The question put to the Supreme Court of Canada inquired whether there was a right to “effect secession”, and whether there was a rule of international law which conferred a positive entitlement on any of the organs named. By contrast, the General Assembly has asked whether the declaration of independence was “in accordance with” international law. The answer to that question turns on whether or not the applicable international law prohibited the declaration of independence. If the Court concludes that it did, then it must answer the question put by saying that the declaration of independence was not in accordance with international law. It follows that the task which the Court is called upon to perform is to determine whether or not the declaration of independence was adopted in violation of international law. The Court is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, afortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it. Indeed, it is entirely possible for a particular act ⎯ such as a unilateral declaration of independence ⎯ not to be in violation of international law without necessarily constituting the exercise of a right conferred by it. The Court has been asked for an opinion on the first point, not the second.
It must be noted that for many international lawyers, this strict interpretation of the question that was asked to the Court by the General Assembly of the United Nations – “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?” – in Resolution 63/3 on 8 October 2008 is particularly frustrating, as we all (more or less) secretly expected a much bigger bombshell to come out of the Peace Palace in The Hague (no pun intended). Read the rest of this entry »
A few days after the International Court of Justice has delivered its advisory opinion on Kosovo’s independence its website is still not operating normally. The situation is seen by many as an important precedent for people seeking independence. While many media have seen the judgement as the ICJ giving the green light to independence of Kosovo, the topic was the legality of Kosovo’s declaration of independence.
The ICJ has now declared that that declaration was legal or to put it more carefully (as the Court did) no international legal provision can be found to doubt the legality of the declaration. This is very good news for the government (it seems we no longer have to add brackets) of Kosovo. Especially since it emerged earlier this week that the trial against Ramush Haradinaj, Kosovo’s former prime minister, needs a partial re-trial. Read the full article
There’s a recent internet “buzz” around the question of whether the European Union is or is not a State, following British MP Daniel Hannan’s post claiming that, with the UN recognizing the EU officially and the Lisbon treaty giving it the power to sign treaties, the European Union was now officially a State under international law.
I was doing my usual blog tour through RSS feeds and such, and came across this post on this question by Julian Ku at Opinio Juris. Reading the comments under them, one of them caught my attention. It was written by Tobias Thienel, who contributes at the Invisible College Blog. Tobias Thienel wrote, on the question of whether the EU was or not a State:
“for an entity to be a state, it must not only have powers comparable to a state (a ‘government’ in the words of the Montevideo Convention), but those powers must not be derived from anyone else. They also, therefore, must not be limited by someone else’s consent. That, in a nutshell, is what sovereignty means.
A state naturally has full ‘compétence de la compétence’, in that it can take new powers at any time, of its own initiative.
The EU cannot. It remains bound by the principle of limited attribution, and derives all its powers from the Treaties, that is to say from the member states. It does not hold power in its own right, no matter how much power – or what powers, including the capacity to make treaties – it holds.”
I started writing a comment to discuss this point, and the comment ended up being over a 1000 words long. Feeling it would be too long for a comment, I decided to post it here instead. Hence the abrupt start:
I think Tobias Thienel’s point about the United States having as a State “la compétence de la compétence”, and not the European Union raises an interesting issue of comparison. I believe he is right in the end, but I’ve been toying with the idea of comparing the US’s constitutional structure and the EU’s institutions, and I’ve found some interesting parallels.
First of all, words of caution: comparison is not, of course, reason, and what I am about to write will probably make any comparative legal scholar scream, but I think it’s worth thinking about.
I left my legal lexicon at home, but if I remember correctly, “la compétence de la compétence” as far as State sovereignty is concerned is the capacity of a State to define the limits on its powers on its own, without exterior intervention. In that sense, bar a full-fledged revolution, “compétence de la compétence” is incarnated by the State’s constitution, and more precisely in the clauses concerning the possibility to amend it.
So the question is, how much difference is there in who holds the power to modify or amend the US Constitution and the EU treaties? In principle, Tobias Thienel’s claim that the US has kompetenz-kompetenz and not the EU is exact. But from a practical point of view, the difference is less than it seems. Read the rest of this entry »