Archive for category General International Law

Reality Check – Sovereignty Got A Lot More Complex with Globalization

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…):


Why Does Sovereignty Matter to America? Report Cover

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Inspired by Karl Rove…

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 »

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Could the Pope be prosecuted?

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 »

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A First Blog Review

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 »

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Why Does the Kosovo Opinion Not Grant Kosovo Its Independence?

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 »

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Be Careful What You Ask For

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

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Compétence sur la Compétence: A Comparison of the United States and the European Union, with Gloves

Flag of the European Union

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 »

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Sri Lanka vs. UN: 1 – 0

As international lawyers, we are made well aware from the beginning that the “international rule of law” that we work and hope for is a fragile and imperfect concept, constantly challenged by realpolitik and the Westphalian State-centric international system. The current situation in Sri Lanka is a testament to the difficulty of establishing that international rule of law.

So what is going on in Sri Lanka? This week, hundreds of protesters, under the leadership of a (now former) government minister, have laid siege to the United Nations compound in Colombo, refusing to let workers out until the U.N. cancels its investigation of alleged abuses (second edit: Bad choice of words, the UN is not investigating abuses, only thinking of ways to punish the alleged crimes. The UN has no direct jurisdiction over war crimes: they’d have to refer it to the ICC, or create a new ad hoc tribunal) committed during the 25-year civil war there. Demonstrators burned effigies of Secretary General Ban Ki-moon and blocked the police’s attempt to free the workers.

To understand the reason behind this violence directly targeted at the United Nations, a brief summary of events is required. Sri Lanka, formerly known as Ceylon, is a large island off the coast of India in which a civil war that has lasted for more than 25 years was brought to a bloody end last year. The civil war, which has opposed since its start in 1983 the Sri Lankan government against the Liberation Tigers of Tamil Eelam (LTTE, but more commonly known as the Tamil Tigers) who fought to create an independent state on the island for the Tamil minority. During the first half of 2009, the Sri Lankan army defeated, at last, the LTTE by resorting to methods that involved heavy bombings, including of civilians and hospitals, torture, and the holding of everyone, combatants and non-combatants, in prison camps that were out-of-bounds to journalists and international non-governmental organizations. Edit: I should mention that government forces are not the only ones suspected of having committed war crimes. The LTTE are also accused of breaches of international humanitarian law such as the use of human shields (see below in comments).

The United Nations vs. Sri Lanka. Following the Sri Lankan victory, the United Nations was put under pressure for its passivity during the conflict, in particular by Louise Arbour, the head of the International Crisis Group (ICG). The ICG published a report in May 2010 in which it denounced the breaches of international humanitarian law by both the government and the LTTE during the final months of the conflict. In an interview with Foreign Policy editor and Washington Post U.N. correspondent Colum Lynch, Arbour – a well respected lawyer from Canada, who contributed to the success of the International Criminal Tribunal for ex-Yugoslavia as its Chief Prosecutor from 1996 to 1999, as well as a former UN High Commissioner for Human Rights and former Supreme Court Justice of Canada – directly criticized the UN for its inaction during the final months of the Sri Lankan conflict and its failure to push for an independent investigation into alleged war crimes afterwards.

Ban Ki-Moon has since named a three-member panel composed of Marzuki Darusman of Indonesia, Yasmin Sooka of South Africa, and Steven Ratner from the U.S charged with finding ways to punish the alleged war crimes. The creation of the panel has sparked criticism from international heavyweights Russia and China, which both wield veto power at the UN Security Council, and that may cause trouble in the future. The Non-Aligned Movement, composed of 188 developing countries, also support Sri Lanka‘s refusal to investigate war crimes.

It is in “protest” (if we can call it that) against this panel and its work that nationalist mobs have been holding U.N. employees prisoner in their own offices.

Epilogue? The end of the story, at least for now, is that the U.N. are retreating from Sri Lanka. Ban Ki-Moon has recalled the resident coordinator in Sri Lanka and decided to close the United Nations Development Programme (UNDP) Regional Center in Colombo. The Secretary General maintains however that the panel will continue with its work.

A dangerous precedent must not be allowed to be set. The situation in Sri Lanka, as it stands today, cannot be tolerated by the international community, and this for two reasons.

First of all, the United Nations is a respected, legitimate international organization concerned with international peace and security. It is unacceptable that a State, and a Member State at that, can bully the UN towards the door using methods worthy of thugs. Allow me to cite a short excerpt from the United Nations Charter that is unfortunately way too often forgotten:

Article 2(5): All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

(Emphasis is mine)

Way to go on that one, Sri Lanka. Such actions only contribute to decredibilizing the UN’s actions when – for all its faults – millions of lives worldwide depend on it.

Second of all, and perhaps even more importantly, I concur with Mark Goldberg’s analysis over at UN Dispatch that accountability for war crimes matters. Not only does it matter, it is essential. In war, the means must never justify the end, and yet the Sri Lankan army has (allegedly) gone to great and bloody lengths to put an end to the civil war, defying elementary rules of international humanitarian law such as the principle of proportionality and the principle of distinction between civilians and combatants. As Mark Goldberg writes: “if these crimes go unpunished, what is stopping other countries with persistent insurgencies to adopt the “Sri Lankan method” of fighting terrorism? The answer is nothing.

Today’s international context is (at least in part) about the global fight on terrorism, and all the dangers that it involves, as has been often observed (Guantanamo Bay, Abu Ghraib, Bagram Air Base, etc.) It is the responsibility of the international community, and of the UN Security Council in particular, to guarantee global peace and security, and that is clearly under threat when we allow for such ruthless violence to go without consequences.

With the forced withdrawal of the United Nations from Sri Lanka due to an investigation into war crimes, the international rule of law has suffered a great blow and humiliation. It is the international community’s responsibility, and its interest, not to let that humiliation go unpunished. Will it rise to the challenge? Nothing is less sure.

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