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    Palestine, UN Non-Member Observer Status and ICC Jurisdiction

    Palestine, UN Non-Member Observer Status and ICC Jurisdiction
    ICCOn 22 January 2009, the Palestinian Minister of Justice, on behalf of the Palestinian National Authority (PNA), lodged a declaration recognizing the jurisdiction of the International Criminal Court (ICC) (pictured left) ‘for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.’ On 3 April 2012, the ICC Office of the Prosecutor concluded that the preconditions to the exercise of jurisdictionwere not met, arguing that Palestine had only been granted ‘observer’, not ‘Non-member State’ status by General Assembly (GA). The Prosecutor considered that the Declaration ‘was not validly lodged’ (Report on Preliminary Examinations Activities 2013, para. 236). However, the Prosecutor also said that ‘allegations of crimes committed in Palestine’ could be considered ‘in the future’ if the ‘competent organs of United Nations … resolve the legal issue relevant to an assessment of article 12 …’. On 29 November 2012 the UN GA – by 138 votes to 9, with 41 abstentions – decided ‘to accord to Palestine non-member observer State status.’ (GA Res. 67/19 of 4 Dec. 2012, para. 2) (see previous EJIL:Talk! Posts here, here and here)

    With this decision, the legal issue raised in the Prosecutor’s decision has been resolved. Palestine has been ‘upgraded’ from a mere ‘observer’ to a ‘Non-member State’. The formal declaration of statehood, which some previously considered a missing precondition to Palestine’s status as a State (Ronen, JICJ 8(2010), 26; Shany, JICJ 8 (2010), 337), has been produced by the GA. And this notwithstanding the possible lack of complete fulfilment of the Montevideo criteria (in particular the effective government criterion; cf. Shaw, JICJ 9 (2011), 307 ff.). The view that Palestine is now a State is not only the prevailing view among scholars (Zimmermann, JICJ 11(2013), 303; Ronen, JICJ 12 (2014) 8; contra still Kontorovich, JICJ 11 (2013), 979), but above all has been confirmed by treaty practice since the GA Resolution, i.e., the accession of Palestine to at least 15 international treaties (accepted by the respective depositaries). This means that Palestine, represented by its government, can now not only trigger ICC jurisdiction by way of a declaration under Article 12(3) of the ICC Statute but also directly accede to the ICC Statute (albeit without retroactive effect, cf. Articles 11(2), 126(2)). While there is no longer a need to overcome the lack of statehood by way of a functional interpretation of Article 12(3) (Shany, JICJ 8 (2010), 329; Pellet, JICJ 8(2010), 981, the new Article 12(3) power suffers from several limitations. Those limitations will be the focus of this post (leaving aside the subsequent ‘ordinary’ obstacles, especially gravity, admissibility and interests of justice, to turn an ICC situation into a formal investigation of a case). Here are the four problems with Article 12(3) that I see.

    First, Article 12(3) is premised on a delegation-based theory of jurisdiction (Shany, JICJ 8(2010), 331-2), i.e., the ‘State’ within the meaning of the provision delegates a part of its jurisdiction to the ICC. Of course, this presupposes that the State possesses the jurisdiction it wants to delegate in the first place. Here Annex II of the 1995 Israeli-Palestinian Interim Agreement (‘Oslo II’) comes into play. According to its Article I, the Palestinian criminal jurisdiction is limited to ‘offenses committed by Palestinians and/or non-Israelis in the Territory’. ‘Territory’ refers to the West Bank and the Gaza Strip, in principle including East Jerusalem. Indeed, this is the Palestinian territory internationally recognized as a ‘single territorial unit’ (Art. IV Declaration of Principles 1993 [Oslo I]; Art  XI(1) Oslo II). Of course, on the one hand, Palestinian jurisdiction does not extend to the Area C in the West Bank (including Israeli settlements and military installations). On the other hand, while Israel does not, in principle, claim sovereignty over the West Bank and Gaza, it does so with regard to East Jerusalem. Thus, on the basis of Oslo, Palestinian criminal jurisdiction is severely limited both ratione personae and ratione loci.

    To get around these limitations one may argue that Oslo, having been agreed between Israel and the PLO, as the representative of the Palestinian people (GA Res. 67/19, para. 2), can neither bind the PNA, which only came into existence with Oslo, nor, a fortiori, the government of the now formally recognized State of Palestine. This indeed has been argued (Ronen, JICJ 12 (2014), 23), but it seems overly formalistic to distinguish, for the purpose of the representation of the Palestinian people and the underlying right to self-determination, between the PLO, the PNA and the government of Palestine (tripartite approach). Be that as it may, it seems more plausible to question the jurisdictional limitations produced by Oslo II from the perspective of the ICC and the underlying criminal accountability claims. Can the ICC’s jurisdiction really be limited by bilateral accords? Does this not stretch the delegation theory of Article 12(3) too far? Can this theory really limit the Court’s jurisdiction once the door to this jurisdiction, so to speak, has been opened by the, in principle, jurisdictional sovereign, the bearer of the jurisdictional claim, i.e., the State of Palestine?

    I would submit that Oslo II cannot limit the ICC’s jurisdiction, even on the basis of the delegation theory, for essentially three reasons. First, Oslo II did not, indeed could not, take from Palestine the (prescriptive) jurisdiction over its territory but only limited the exercise of this jurisdiction. In other words, pursuant to Oslo II, the PNA must not exercise jurisdiction over Israelis but it may delegate this jurisdiction to an international court. Otherwise, Oslo II would operate as a bar to the international prosecution of possible international crimes by Israeli soldiers in the West Bank, a result hardly compatible with the ICC’s mission and the underlying duty to prosecute international core crimes.  Secondly, Oslo was only meant to provide rules for a transitional period not exceeding five years. Because this period has expired and, in addition, the legal situation has radically changed (with the recognition of Palestinian statehood), Oslo can no longer operate as a restriction of Palestinian rights. In any case, should one consider that the triggering of ICC jurisdiction would violate pre-existing third party rights (in casu those of Israel under Oslo), the only limitation arising from the ICC Statute is the one of Article 98 referring to cooperation with the ICC, in particular the surrender of suspects.

    Secondly, the PNA would have to file a new declaration, since the 2009 Declaration must be considered void in light of the Prosecutor’s decision and the non-retroactive effect of GA Res. 67/19. In other words, the GA resolution changed the status of Palestine only ex nunc with a view to future Palestinian declarations (Zimmermann, JICJ 11(2013), 308-9). Here another problem with Oslo arises, since Art. IX(5) Interim Agreement severely limits the PNA’s power to conduct foreign relations. However, it is not clear from this provision whether it also prohibits the triggering of international criminal jurisdiction. It is fair to assume that at the time of drafting nobody thought that such a possibility would ever arise. In any case, here again one could argue – with more reason than above – that the government of Palestine cannot be bound by this provision, not having been a party to Oslo. Indeed, if this government can accede to international treaties, as indeed it does, it is, a fortiori, entitled to lodge an Article 12(3) Declaration.

    Third, the question arises whether such a (new) declaration can have a retroactive effect. The 2009 Declaration sought retroactive jurisdiction reaching back to 1 July 2002, the date of entry into force of the ICC Statute. I would submit that such a retroactive effect is possible. This possibility follows from the delegation theory underlying Articles 12(3) and 11(2). Article 12(3) implies that it is the sovereign right of the State delegating its territorial jurisdiction to do so within the temporal parameters of the ICC Statute, i.e., going back, in principle, to the Statute’s entry into force. Article 11(2) prohibits a retroactive effect of jurisdiction, but not with regard to (‘unless’) the State that ‘has made a declaration under article 12, paragraph 3.’ Zimmermann’s argument that Article 12(3) is a different, indeed, ad hoc, form of triggering jurisdiction does not prove otherwise, since the very fact that Article 12(3) is such an exceptional channel to jurisdictionimplies that the non-retroactivity rule of Article 11 does not apply.

    Further, the possibility of a retroactive effect is also confirmed by the ICC’s practice so far, accepting several Article 12(3) declarations granting retroactive jurisdiction. For example, the Declaration of Ivory Coast of 18 April 2003 referred to events since 19 September 2002, and the recent Declaration of Ukraine of 17 April referred to events from 21 November 2013 to 22 February 2014. Of course, in the case of Palestine, such a declaration cannot go further back than the actual recognition of statehood on 29 November 2012, since the authority to lodge it is premised on the existence of a State of Palestine.

    Fourth, if such a declaration can only give jurisdiction with regard to events occurring after 29 November 2012 it will, ratione temporis, have to focus on crimes committed since that date. However, there may be an exception to this temporal limitation with regard to the possible criminalization of the transfer of settlers into the occupied territories. Such a transfer – as one of the Occupying Power’s ‘own civilian population’ – clearly amounts to a war crime in international armed conflict (Article 8(2)(b)(viii) ICC Statute). Indeed, the systematic establishment of settlements creates faits accomplis on the ground, the very facts to be prevented by the primary IHL norms (Articles 49 (6) GC IV and 84(5) (a) AP I). Arguably, the settlement policy is the primary obstacle to the creation of a Palestinian State as a single, homogeneous territorial unit; thus, it touches upon the very essence of the primary IHL prohibition. Against this background, the still-existing dispute on thecustomary character of this provision (Cassese et al., International Law, 3rd ed. 2013, 80-1), apart from putting a heavy burden on the ICC (having to inquire whether Article 8(2)(b)(viii) is in line with customary international law), can hardly be an obstacle to adjudication here.

    A more difficult question is raised by the character of the crime as a continuous or permanent crime. Could that imply that transfers anticipating the coming into existence of the State of Palestine would fall within the ICC’s jurisdiction? What is the decisive point in time to sever the jurisdictional link with regard to continuous crimes? There are quite a few theoretical answers to this question. One could focus on the commencement of the transfer and thus exclude all transfers which commenced before 29 November 2012. This is similar to the solution chosen by the State Parties for the crime of enforced disappearance. They required – by footnote 24 to the Elements of Crime to Art 7(1)(i) – that the attack (as the context element of crimes against humanity) must have commenced after the entry into force of the Statute. Of course, the problem of the enforced disappearance approach is that it focuses on the context, not an individual element of the crime, and therefore is too restrictive. The other side of the coin is the question of what has to be ‘continuous’? In other words, what has to reach into the present or even the future? Is it the actual act (as proposed by Art 14(2) of the ILC Articles on State responsibility), i.e., the transfer as such, or do its mere effects or consequences suffice? For reasons of space this cannot be further explored here. In any case, these temporal considerations do not affect the Court’s jurisdiction over the ongoing settlement policy and practice.

    This post is the written version of an expert statement given at the ‘Roundtable on Legal Aspects of the Question of Palestine Convened by the Committee on the Exercise of the Inalienable Rights of the Palestinian People’, UNOG, Geneva, 24-25 April 2014.




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    Crimea: Does “The West“ Now Pay the Price for Kosovo?

    Crimea: Does “The West“ Now Pay the Price for Kosovo?

    There is a lingering sentiment on this blog (see the posts by Nico Krisch and Christian Marxsen) that “the Kosovo issue” has facilitated the blatant violations of international law recently committed by Russia with regard to Crimea (notably the unlawful annexation of that territory), and that “the West’s” behaviour in the Kosovo context now prevents clear condemnations and robust reactions towards these violations. That view has also been espoused elsewhere (see, e.g., Marcelo Kohen, “L’ Ukraine et le respect du droit international”, Le Temps, 13 March 2014 and Bruno Simma, “The West is hypocritical” (interview), Der Spiegel, 7 April 2014). The basic idea is that “the West” now pays the price for Kosovo, and that such a situation was predictable (and has been predicted) by those who now deplore it, and allows them to think (or even to say): “Well, we warned you from the beginning on, and this is now what comes out of it … so we were right”.

    In this post, I would like to investigate the soundness of this position. We first have to ask what is meant by “the Kovoso issue”. Actually “Kosovo” refers to two events: not only to the sponsoring of Kosovo’s independence in 2008, but also to the possible unlawfulness of NATO’s military intervention of 1999. Both events were politically linked, and they concerned three different core norms of international law: the prohibition on the use of force, territorial integrity/inviolability of boundaries, and the self-determination of peoples.

    In the Crimea crisis, all three norms are again at stake: Russia both relies on its right or even responsibility to intervene with military means to prevent human rights abuses committed against ethnic Russians and Russian citizens (humanitarian type /R2P-type intervention) and on the Crimean (or even Eastern Ukrainian) right to secession based on the right to self-determination whose exercise in Crimea led to a disruption of Ukrainian territorial integrity.

    Did Russia abuse these norms? It did not abuse them in the technical sense of abus de droit. Abuse in its technical sense is present when a norm is being applied properly on its face, but with negative consequences which hurt the legal position of other actors, maybe unforeseen by the authors of the rule. This was not the case in the context of Crimea. So we are speaking of an abuse in a non-technical sense, more in the sense of distortion of facts and misapplication of norms (I will come back to this).

    Generally speaking, the special character of the international legal system, namely the absence of a central authority to determine whether a rule really applied (or has been wrongly asserted), and the near-to-non-availability of robust sanctions requires us to be more vigilant towards the susceptibility to abuse of the norms of the system. So this is a problem of the international legal system at large.

    This means that we should not favour international legal norms that are intrinsically easier or more prone to abuse (in that broad sense) than others. But are there norms which lend themselves more to abuse than others? Yes: Norms, which are so vague that they create large grey zones, or which have a lot of complicated exceptions, seem to be more prone to abuse than others. It is particularly difficult to tell whether they have been properly applied or whether they have just been asserted, although in reality they do not apply.

    However, neither “humanitarian intervention” nor “remedial secession” is vaguer than typical norms of international law. They hinge on massive and persistent human rights violations, on the exhaustion of negotiations and on the failure of milder means. While there is of course a leeway when determining at what point these requirements are met (which type of human rights violations? How long must negotiations for a different solution been conducted, etc.?), this leeway is not unusually broad (in comparison to other norms of international law, e.g. most human rights provisions).

    What is the alternative rule which the critics of “the West’s” behavior in Kosovo would have preferred to be upheld? It is the rule of strict state sovereignty, strict non-intervention, and strict territorial integrity, admitting neither a humanitarian intervention nor a remedial secession. But, importantly, this rule can also be abused (and has often been abused) by the territorial sovereign, by the government in power. Syria and Russia (with regard to Chechnya) are examples for this type of abuse.

    Another point is that the argument of possible abuse is a purely formal one. Should this argument be allowed to override considerations of substance? A norm that is patently important, intuitively “right”, in conformity with the entire system of international law and accepted by all actors (such as the prohibition of genocide and the prohibition on the use of force) should – I submit – not be discarded simply because there is the possibility that one participant in the international legal system might fake facts and then (erroneously) apply that norm.

    With regard to the Russian behavior in Crimea, three points merit attention. First, we must distinguish the fabrication of facts from wrong legal arguments. Russia to some extent distorted the relevant norms’ content (for example by misreading the ICJ’s Advisory Opinion in the Kosovo case and exaggerating its holding). The most important distortion is however a purely factual one. Russia claimed that there were widespread and systematic human rights violations of Ukrainians with Russian ethnicity which warrants secession and also Russian intervention. Because this is simply not true (as verified, e.g. by the Office of the United Nations High Commissioner for Human Rights, Report on the Human Rights Situation in Ukraine of 15 April 2014), the norms on which Russia relied did not apply. This was not a question of their vagueness or inconsistency.

    Second, Russia did not respect the proper legal procedures. Even if the facts − which the Russian media had basically invented − had existed, Russia would still not have been entitled to intervene with military means to support the organization of an uninformed and unfree referendum which led to the territory’s request for joining Russia and the subsequent redrawing of state boundaries.

    Third, Russia does not display any opinio iuris supporting a remedial secession of groups who are grossly discriminated against and politically maginalised, because it consistently denies this allowance to groups (e.g. Chechnyans) within its own state. This shows that the government’s reliance on legal arguments is not guided by any legal conviction but is purely strategic.

    Does it matter, for our assessment of Russian action in Crimea, whether the NATO intervention in Serbia in 1999 without any Security Council mandate had been illegal, and Kosovo’s secession, too? Scholars’ and politicians’ opinion about the lawfulness of the intervention is divided. I tend to view it as a humanitarian intervention, exceptionally tolerable on higher grounds. A well respected expert report qualified it as “illegal but legitimate” (The Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned (OUP, Oxford 2000), at 186).

    The legal qualification of the Kosovo secession is again a different matter. Even if the Kosovo intervention is deemed unlawful, this was too remote to legally taint the Kosovar declaration of independence of 2008. The consent of Yugoslavia (Serbia) to resolution 1224 and the ensuing legal framework erected a legal firewall between the prior possible violations of the prohibition on the use of force and the Kosovo secession nine years later. So the secession must be assessed on its own merits. I tend to qualify it as a “remedial” secession which was exceptionally justified on account of blatant human rights violations, political marginalisation, persistent denial of internal self-determination of Kosovar Albanians, and as the only way out of a stalemate.

    Even those who accept the legitimacy or even legality of the NATO intervention and of the secession under international law must admit that this was not a clear case, but a hard one, bordering on illegality and/or constituting a development of international law. The “non-precedence-talk” by Western actors can halt such a development – if at all – only to the extent that it prevents the ascription of an opinio iuris to those actors. However, the acknowledgment that there was, at those points in time, probably no clear-cut rule, but only one-in-the-making, does not absolve us from making proper legal distinctions. And the common wisdom that the interpretation and possible development of international law is (inter alia) guided by political, including geo-strategic, interests, does not absolve us from this either.

    On the contrary premise that either (or both) the Kosovo intervention or the Kosovo secession was illegal, we indeed have a problem of credibility. Actors who breached the law in a previous case sound hypocritical when they point their finger to another actor’s violations of the law. This is not only a matter of politics, but raises the legal problem of double standards. Applying double standards is extremely pernicious for the rule of law and fairness. One of the core elements of the rule of law is the principle that like cases must be treated alike. However, the principle of equal treatment can not apply in the realm of unlawful behaviour, because this would condemn the supervising actors to perpetuate unlawfulness.

    Also, the principle of tu quoque does not apply to serious violations relating to norms on the protection of the human person (cf. the expression of this principle in Art. 60(5) VCLT) – and these are (inter alia) the ones at stake here.

    All things considered, even if the Kosovo intervention and/or the Kosovo secession were unlawful (a view which I do not espouse), this would not “undo” in any way the unlawfulness of Russian action.

    A final observation: Does it matter whether a legal norm is prone to abuse specifically by powerful players, and does it matter how great the temptation and probability of such an abuse is? From a formal legal point of view, no. The formal rule is the principle of state equality. All states are in an equal way obliged to respect international law, which means that all states are legally prevented from fabricating facts and wrongly applying norms to those facts. That other participants in the system will hesitate to criticize and sanction a powerful law-breaker does not alter this principle.

    From a legal policy point of view, these factors may of course be taken into account. However, lawyers should not, in an act of anticipating resignation towards power politics, refrain from upholding the rule. It is their job to do that, because others will do the rest anyway.


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    Recognition of States in International Law: For Sale

    Recognition of States in International Law: For Sale

    alfonso-portillo-1-sizedNews reports indicate that former Guatemalan president Alfonso Portillo (pictured left) recently pleaded guilty in federal court in New York to accepting $2.5 million in bribes from Taiwanese officials in exchange for assurances of continued diplomatic recognition during his tenure in office (see here, here and here). To what extent is the recognition of a state undermined by charges of corruption? In the context of Taiwan, the recognition of a government, and not a state, was at issue. But as an analytical exercise it is interesting to think through the implications of corruption on the recognition of statehood in international law.

    Statehood and recognition are distinct legal concepts, but in practice recognition can be dispositive of whether an entity is a state.  In light of the importance of recognition for the creation and existence of states, the possibility of corruption influencing the recognition process is disconcerting. In the case of Taiwan, “dollar diplomacy” is an established phenomenon, and allegations similar to those raised against Guatemalan president Portillo seem to be surfacing in El Salvador as well. Nor does it seem implausible that other instances of recognition, of and by other states, may have been similarly motivated.

    To be clear, the issue discussed here is not recognition based on inducement or incentive to the recognising state, but recognition based on inducement or incentive to key officials in the recognising state. States routinely make binding political and legal decisions based on political and economic, tangible and intangible, inducements and incentives: defence deals, monetary aid, concession agreements and diplomatic manoeuvres just a few examples.

    The issue that forms the subject of this post is whether the validity of an act of recognition can be impugned on the grounds that it was induced through the corruption of key government officials? Is it possible for Guatemala, or China to argue that the original act of recognition is invalid by reason of President Portillo’s corruption? This question of possible invalidity has two aspects. First, does the act of recognition bind the recognising state, notwithstanding the fact that it was a result of a mala fide exercise of powers by a key government official? Second, does the act of recognition vest an irrevocable right or status in the recognised state, such that notwithstanding the taint of corruption on the act of recognition, it cannot be invalidated?

    The first question deals with the effect of the act of recognition on the recognising state. I would argue that such recognition, even if motivated by the corruption of a particular official, retains its validity. To begin with, it is well established that “the conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions” (Art. 7, ILC’s draft articles on state responsibility). Further, analogies from other areas of international law support this conclusion. In the matter of ‘full powers’ for the conclusion of treaties, the actions of persons who appear to represent the state with the state’s consent bind the state (Art. 7, VCLT). Similarly, the concepts of immunity rationae personae and rationae materiae, in protecting senior government officials from prosecution by other states, assume that the senior officials of a state act in the name of the state and bind the state by their actions.

    Conversely, it might perhaps be possible to analogise from the doctrine of ‘odious debt’ that actions taken by corrupt government leaders in the recognising state, in their own interest, against the interest of the people they represent, when the recognised state knows that the actions benefit the officials and not the recognising state, should not bind the recognising state. There are two problems with this argument: first, it is unclear whether the odious debt doctrine applies outside of government debts, strictly construed; second, in relation to the recognition of states, it would be rather onerous to prove damage to the interests of the people of the recognising state and knowledge by the recognised state of this damage.

    Therefore, the recognising state probably cannot seek to void its recognition because it was induced by individual corruption. To be clear, Guatemala is not restrained from separately revoking its recognition of Taiwan; it is, however, constrained from arguing that its original recognition was invalidated by the corruption of President Portillo. This is a narrow distinction in theory, but a broad distinction in practice. For instance, the difference between revocation and invalidation will have an effect on the scope of involvement of third states. If the validity of the original act of recognition is capable of being impugned, it may be possible for third states (for instance, China in this case) to challenge the recognition. But if the original act of recognition can only be revoked and not challenged, then it is only Guatemala that can revoke the recognition.

    The second question deals with the effects of the recognition on the recognised state. Is it possible for the recognised state to argue that the act of recognition vests an irrevocable right or status? At least two possible arguments to this effect come to mind.

    First, it could be argued that such a revocation amounts to denial of self-determination, but this argument is not persuasive. The right to self-determination does not include an unqualified right to independent statehood. Moreover, the impact of a singular instance of revocation of recognition on the self-determination of a recognised state would probably be difficult to determine, and would require an analysis of how many states have recognised the state, what the effect of a single revocation would be, whether that revocation would produce a knock-on effect, and so on. A second, more plausible, argument focuses on the violation of sovereign equality. Once an entity meets the criteria of statehood, and is recognised as such, the ability of individual states, or the international community, to revoke recognition and statehood would infringe the fundamental right of sovereign equality. International law does provide for such ability in limited circumstances, for instance through directives of the UNSC, but those circumstances are very limited, and restricted to situations involving threats to international peace and security.

    Neither of these arguments is ultimately persuasive. The recognition of states in international law is a political act; there is no duty in international law to recognise a state, nor a right to be recognised. Similarly, the revocation of recognition is a political act. However, if these two arguments, or other similar arguments, were to be accepted, they would have the effect of preventing the revocation of recognition of statehood. And that is contrary to the accepted position in international law.

    In conclusion then, an act of recognition of statehood induced by the personal corruption of individuals in the recognising state is valid in international law. But it is difficult for the recognised state to argue that the recognition is permanently irrevocable, and it is possible tor the recognising state to separately revoke its recognition.




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    Sense and Nonsense of Territorial Referendums in Ukraine, and Why the 16 March Referendum in Crimea Does Not Justify Crimea’s Alteration of Territorial Status under International Law

    Sense and Nonsense of Territorial Referendums in Ukraine, and Why the 16 March Referendum in Crimea Does Not Justify Crimea’s Alteration of Territorial Status under International Law

    Referendum in Crimea

    Yesterday, on 15 April 2014, Ukrainian interim president Turtschinov considered to hold, simultaneously with the presidential elections, a referendum on regional competences in Ukraine. On 8 April 2014, separatists in the Ukrainian region of Donetsk proclaimed that they would hold a referendum on the independence of that Eastern region of Ukraine. Some days before, representatives of the Crimean Tatars announced that they sought to hold a referendum on their political autonomy within Crimea.

    On 16 March 2014, the population of Crimea had overwhelmingly voted in favour of joining the Russian Federation. The population was asked to choose between the following alternative: “1) Are you in favour of Crimea joining the Russian Federation as a subject of the Russian Federation?” or “2) Are you in favour of re-establishing the 1992 constitution of the Republic of Crimea and Crimea’s status as a part of Ukraine?” The maintenance of the territorial and status quo was not given as an option in that referendum, and no international observers were admitted. With a voter turnout of 83.1 %, 93 % answered with a “Yes” to the second question, and thus pronounced themselves in favour of joining the Russian Federation.

    The spokespersons of the Tatars now declare that their ethnic group had boycotted the referendum of 16 March, and assert that the majority of Tatars would have preferred to stay within Ukraine. Tatars currently form about 10 percent of the Crimean population. Probably hundreds of thousands of Tatars were killed, starved, and were deported from the 1920s to the 1940s under Soviet policy. The new government of Crimea rejects the idea of a politically autonomous territory for the Crimean Tatars but holds that the Tatars can only claim “cultural autonomy”.

    The 16 March referendum, and announced further territorial referendums in Ukraine, place in the limelight the problématique of this legal institution. Are not the outcomes of referendums in ethnically mixed units most often ethnically pre-determined? And does not the resort to a referendum lead to ever smaller subgroups which again seek to detach themselves from a larger one? After all, the Ukrainian people, including the Crimean population, had some 20 years ago voted in favour of independence from the Soviet Union. (See on the 1991 referendum in Ukraine Anne Peters, Das Gebietsreferendum im Völkerrecht (Baden-Baden: Nomos 1995), 184-88; specifically on previous Crimean referendums ibid., 190-91, 211-15). That Ukrainian referendum of 1 December 1991 had been at the time widely appreciated as having rung the death knell for the dissolution of the USSR one week later, when the Agreement Establishing the Commonwealth of Independent States of Minsk of 8 December 1991 declared that the Soviet Union had ceased to exist. But even before that date, and later, Crimean politicians had several times (in 1991, 1992, 1994, and so on) planned and sometimes held “polls” on a special status of Crimea.

    This post postulates that, as a matter of international customary law, and as a matter of legal consistency and fairness, a free territorial referendum is emerging as a procedural conditio sine qua for any territorial re-apportionment. However, the 16 March referendum was not free and fair, and could not form a basis for the alteration of Crimea’s territorial status.

    Possible qualifications of the change of Crimea’s territorial status

    In the case of Crimea, the territory broke away only to unite itself one split second later with the neighbouring state Russia. Such a transfer could be qualified, in traditional terms of territorial realignment, depending on what viewpoint one takes and what the technical details of the operation were, as a secession (maybe such as the secession of Eritrea from Ethiopia in 1991), but here with a subsequent fusion of two states (such as the fusion of Northern and Southern Yemen to form a United Yemen in 1991); as an integration of one entity into a neighbouring state (just like the German Democratic Republic integrating into the Federal Republic of Germany in 1990); as a cession of territory from Ukraine to Russia (such as the cession of Louisiana to the USA by France in 1803 or the cession of Alaska to the USA by Russia in 1867); as a dereliction of Crimea by Ukraine; or finally as an annexation (such as the annexation of the Baltic states by the Soviet Union in 1990, or of East Timor by Indonesia in 1975).

    What happened with Crimea is probably best qualified as a seizure of territory under threat of force, i.e. as an unlawful annexation. Were it to be understood as a secession with an ensuing immediate fusion with Russia, the very strict preconditions for the exceptional ex post-toleration or acceptance of a secession would have had to be met, which was not the case (see on this below).

    However we qualify this alteration of territorial status, it cannot be justified by the 16 March Crimean referendum, which did not satisfy international legal standards. Importantly, holding a free and fair referendum is only a necessary, but not a sufficient condition for a territorial realignment to be accepted as lawful by international law.

    The operation could therefore not constitute a legal basis for the new territorial status quo. The announced further referendums by subgroups of the Ukrainian population do not promise to fulfill international standards either.

    Free and fair territorial referendums are the proper procedure for exercising the right to self-determination

    Contemporary international law moves in the direction of requiring that all territorial realignments be democratically justified, and preferably through a direct democratic decision, i.e. by a territorial referendum. The state practice founding this principle started with the plebiscites after World War I, the decolonisation referendums of the 1950s and 1960s, and has been much intensified by the numerous referendums during the dissolution of the Soviet Union and Yugoslavia after 1991. Since then, probably all territorial changes and re-drawing of boundaries were preceded by (and justified by) referendums, or at least by democratic elections in which the territorial issue was the main or only agenda item. Examples for such indirect democratic justifications were the re-unification of Germany in 1990, and the secession of Kosovo from Serbia in 2008. An atypical case with a doubtful democratic basis was the dissolution of Czechoslovakia (CSFR) in 1993.

    The international legal obligation to conduct a territorial referendum flows from the principle of self-determination of peoples. That principle has its historic roots in the principle of popular sovereignty and has a democratic component, even if it does not outrightly amount to a right to democratic government. It is generally acknowledged that the right to self-determination should be exercised democratically.

    In other words, a free and fair referendum is (potentially) one procedural exigency for the exercise of the right to self-determination. It is my basic claim that a territorial referendum is admissible and has even emerged as the standard procedure to exercise the right to self-determination. Moreover, contemporary international customary law seems to mandate that the collective right to self-determination (notably when it seeks the extreme result of secession) should be exercised through a referendum.

    Further procedural requirements for the exercise of this collective right, besides the (direct-) democratic quality of the exercise, are the peacefulness of the process and the exhaustion of negotiations about the territorial issue with all stakeholders, in order to find a consensual solution. And furthermore, a number of material requirements exists in order to render a secession acceptable or tolerable under international law.

    If the procedural and material pre-requisites are not met, the principle of territorial integrity and stability − which is presumed to serve best the interests of humans − prevails. In contrast to the ICJ’s view in the Kosovo Advisory Opinion, para. 80, the principle of territorial integrity is best understood to protect states also against disruptions from inside the state, and this understanding also informs state practice. In any case, the principle of territorial integrity was applicable to the status change of Crimea, because the threat to territorial integrity emanated (also) from a neighbouring state, and not only from the inside.

    Exercise of self-determination by Crimeans?

    Let us assume that the population of Crimea, despite its multi-ethnic composition, and despite its close ties both to the Ukrainian people on the one hand, and the Russian people on the other, qualifies as a separate “people” in the sense of the international right to self-determination. The collective holder of the right to self-determination need not be ethnically defined. It is sufficient, and in normative terms preferable, to ascribe the collective right to a group of persons who live on a given territory and who are united by their political aspiration to form a political community with its own territorial basis. This is the concept of “people” or “nation” in the “French” tradition, and it is in fact lived by many multi-ethnic and multi-lingual peoples in the world, for example the Swiss, the Nigerians, or the Chinese peoples. The entire process of decolonisation, which was legally based on the principle of colonial self-determination, always took populations (independently of their ethnic composition) as the bearer or subject of the collective right.

    However, the intention of the group to form a “people”, which will then constitute the “personal” element of a new state (consisting in a people, a territory, and a government) must be expressed in a “free” way (cf. common Art. 1 of the UN Human Rights Covenants of 1966), and this is where the procedural standards kick in. The self-constitution of the population of Crimea might have occurred over some time, manifest in various political moves, even before the 16 March referendum. But for that (assumed) political actor and potential holder of the collective right to self-determination to lawfully exercise an extreme form of this right (namely to secede and join another state), specific procedural and material conditions must be fulfilled.

    Even proponents of a principle of remedial secession (as the extreme outcome of an exercise of self-determination) accept that such an action must in any case remain a means of last resort which may come into play only when other strategies to realise internal self-determination within a given state, without disrupting territorial integrity, have failed. This means that negotiations on this matter must have been seriously tried out and failed. In material terms, resort to this ultima ratio can only be triggered by persistent and massive human rights violations, and by a long-lasting denial of the right to internal self-determination which could be realised by establishing mechanisms of political autonomy within one state. All these conditions were absent in Crimea.

    If these material (and overlapping) three procedural conditions (democratic procedure, peacefulness, exhaustion of negotiations on internal political autonomy) are not fulfilled, then the right to self-determination has not been exercised properly and for that reason cannot justify – under international law – a territorial alteration.

    The unconstitutionality of the 16 March referendum under Ukrainian law

    The legal basis of the 16 March referendum was a resolution adopted by the Supreme Rada (Council) of the Autonomous Republic of Crimea “On the all-Crimean referendum” on 6 March 2014. That resolution had been passed on the basis of Articles 18.1.7 and 26.2.3 of the Constitution of the Autonomous Republic of Crimea. (Article 18.1.7 provides that among the powers of the Autonomous Republic of Crimea is “calling and holding of republican (local) referendums upon matters coming under the terms of reference of the Autonomous Republic of Crimea”. According to Article 26.2.3 “passing of a resolution upon holding of a republican (local) referendum” belongs to the powers of the Supreme Rada). These provisions are based on Article 138.2 of the Constitution of Ukraine according to which the “organising and conducting local referendums is within the competence of the Autonomous Republic of Crimea”.

    The 16 March referendum was not allowed by the Ukrainian Constitution, which enjoys supremacy over the Constitution of Crimea as an Autonomous Republic. The Venice Commission reached this conclusion based on the following analysis (Venice Commission, Opinion no. 762/2014 of 21 March 2014 (Doc. CDL-AD(2014)002), “Whether the decision taken by the Supreme Council of the Autonomous Republic of Crimea in Ukraine to organise a referendum on becoming a constituent territory of the Russian Federation or restoring Crimea’s 1992 constitution is compatible with constitutional principles”). First of all, Ukraine is a unitary state. According to Article 132 of the Constitution of Ukraine, “the territorial structure of Ukraine is based on the principles of unity and indivisibility of the state territory, (…).” Under Article 134 of the Constitution, “the Autonomous Republic of Crimea is an inseparable constituent part of Ukraine and decides on the issues ascribed to its competence within the limits of authority determined by the Constitution of Ukraine”. The Autonomous Republic of Crimea therefore enjoys autonomy only to the extent that powers were transferred to it by the Constitution of Ukraine. Article 135 of the Constitution of Ukraine holds that, “regulatory legal acts of the Verkhovna Rada of the Autonomous Republic of Crimea and decisions of the Council of Ministers of the Autonomous Republic of Crimea shall not contradict the Constitution and laws of Ukraine (…)”. Since Article 134 of the Constitution of Ukraine defines Crimea as an inseparable constituent part of Ukraine, the secession of Crimea would require amending the Constitution of Ukraine. Such a constitutional amendment is, however, prohibited by Article 157.1 of the Constitution of Ukraine which contains a kind of freezing clause. The Venice Commission – in my opinion correctly – concluded that “the Ukrainian Constitution prohibits any local referendum which would alter the territory of Ukraine and that the decision to call a local referendum in Crimea is not covered by the authority devolved to the authorities of the Autonomous Republic of Crimea” (ibid., para. 15).

    However, from an international law perspective, the constitutional admissibility or inadmissibility of the referendum is irrelevant. Therefore, any potential international legal value of the Ukrainian 16 March referendum is not tainted by its unconstitutionality. It is actually typical that territorial referendums conducted in the exercise of the right to self-determination are unconstitutional under the law of the mother state. For example, prior to the Lithuanian referendum of 9th February 1991, then president of the Soviet Union, Gorbachev, had declared these referendums illegal and their result void. Nevertheless, the European Community and numerous other international actors welcomed the decision to hold referendums on Baltic independence (i.e. their restoration of statehood).

    Violation of the international standards on the modalities of territorial referendums

    International law does not only ask for a democratic decision-making process on territorial questions, and to that extent demands a referendum (or elections), but also sets up the rules on the modalities of conducting such referendums. If these are not observed, if a referendum is not free and fair under international standards, it cannot constitute a basis in international law for the sought territorial change.

    The procedures and modalities of a referendum are very important, because it depends on them whether the idea of a free and fair territorial referendum is operational in real life. Only an operational rule of international law is credible and can deploy normative force. In fact, during the 20th century, and most of all in the extensive referendum practice after 1989, some international standards, rules and principles on how a territorial referendum must be conducted have emerged or are in the course of formation. Additionally, post-1989 international law, notably in Europe, has shaped standards on other kinds of referendums (not specific territorial ones), as a form of exercising direct democracy. (See Council of Europe, Parliamentary Assembly Recommendation 1704 (2005), “Referendums: towards good practices in Europe”) of 29th April 2005; Venice Commission, Code of Good Practice on Referendums (CDL-AD(2007)008rev) of 20th January 2009 which contains “Guidelines on the Holding of Referendums”).

    Not all of these modalities of a referendum derive from binding international standards. Some (only) constitute “best practices” (Venice Commission, Opinion on the Compatibility of the Existing Legislation in Montenegro concerning the Organisation of Referendums with Applicable International Standards (CDL-AD(2005)041) of 19 December 2005, para. 11). Although existing international standards on territorial referendums are “open-textured” (ibid., para. 64), based on the varied practice of many countries, and leaving leeway to their judgment and traditions, some core principles can be said to form part and parcel of international customary law.

    Importantly, the legal status of requirements on the modalities of territorial referendums are independent of the question whether a customary law requirement to hold a referendum (or to legitimise a territorial change in an indirectly democratic fashion) already exists (as I assume) as a matter of hard international law. Should this not be the case, a conditional scheme applies: even if there were no international law obligation to organise a referendum, international law could still regulate its modalities in a compulsory fashion. The “if … then”-scheme is well established in international law. For example, there is no right of option (i.e. the right to choose one’s nationality in the event of a realignment of territory) under contemporary customary law. However, if an option is granted either by treaty or by domestic law, time limits for the exercise of this right must be reasonable. The same “if … then”-scheme applies with regard to the admission of the entry of aliens to the territory of a state, and in the area of social rights. To conclude: If a state decides to hold a referendum, then it must satisfy international standards. And when these standards are not respected, a territorial referendum cannot serve as a legal basis for a territorial change.

    The most important and arguably hard international legal standards concern, first, peacefulness; second, universal, equal, free and secret suffrage; third, the framework conditions of freedom of media and neutrality of the authorities; and finally an international referendum observation. Neither of these four sets of international legal standards has been respected in the Crimean 16 March referendum.

    (1) First, the territory was not pacified. This is the classic requirement for unimpeded voting on territorial issues. In the historical plebiscites on cession, which developed with regard to the re-drawing of boundaries among neighbouring states in the aftermath of wars, the pacification was realised by the “neutralisation” of the territory through the withdrawal or reduction of the troops of both concerned states. Pacification may also require the imposition of a ceasefire.

    This basic rule of pacification and neutralisation is of paramount importance for the assessment of the 16 March referendum in Crimea. It was held in front of the guns and tanks of the Russian army and of unidentified troops. For this reason alone, the referendum cannot deploy a legal value under international law. It cannot be said that, against the background of the history of Crimea, even in the absence of Russian and unknown troops, a majority of the voters would in any case have voted in favour of joining Russia, even if the exact rate of approval might have been less than 98 percent. Such an argument is unacceptable, because the prohibition of conducting a referendum in a non-pacified territory, under threat of force, is exactly a procedural and formal device to forestall speculations about an ostensible real will of the concerned population. What happened in Crimea corresponds to what the academic authority on territorial plebiscites, political scientist Sarah Wambaugh, wrote: “a plebiscite not effectively neutralized is a crime against the inhabitants of the area”. (Sarah Wambaugh, Plebiscites Since the World War: Vol. I, Washington 1933, 4429).

    (2) Universal, equal, free and secret suffrage: these are the internationally recognised fundamental principles of electoral law as expressed in article 25 CCPR and article 3 of the First Protocol to the ECHR. The democratic component of the right to self-determination requires that these principles be observed in exercising the right to self-determination. In order to guarantee the universal and unfalsified vote, all voters must be orderly registered. Concerning the element of “universal” suffrage, difficult questions arise with regard to the delimitation of the voters. For example, it can be said that, in principle, transferred, dispelled and displaced former inhabitants of the territory should be in principle allowed to vote, too.

    (3) Framework conditions: in order to realise the basic principles of democratic suffrage, a number of typical practical measures need to be taken. In order to allow for a free vote (which includes the freedom of voters to form an opinion and their freedom to express their wishes), freedom of expression and of the press, free campaigning, including freedom of assembly, freedom of association for political purposes, and free movement must be guaranteed. The administrative authorities must espouse a neutral attitude, in particular with regard to the referendum campaign, coverage by the media, public funding, and the right to demonstrate.

    In its Opinion on the territorial referendum in Montenegro which justified the separation from the Union of Serbia and Montenegro, the Venice Commission summarised these framework conditions as follows: “the authorities must provide objective information; the public media have to be neutral, in particular in news coverage; the authorities must not influence the outcome of the vote by excessive, one-sided campaigning; the use of public funds by the authorities for campaigning purposes must be restricted.“ (Venice Commission, Opinion on the Compatibility of the Existing Legislation in Montenegro concerning the Organisation of Referendums with Applicable International Standards (CDL-AD(2005)041) of 19 December 2005, para. 12).

    (4) Notably the lack of international observation: the adamant international legal precondition for a valid territorial referendum is robust international oversight, ideally encompassing a transfer of authority over all matters connected with the referendum to an international institution. At the very least, international observers and facilitating personal must be deployed. The basic rule of international oversight already formed in the context of the plebiscites organised by the League of Nations and the United Nations. These referendums had been prepared and organised, or were observed by international institutions.

    The Venice Commission’s Guidelines on the Holding of Referendums (CDL-AD(2007)008rev) of 20 January 2009) spell out the requirement of international observation as following: “b. Observation must not be confined to election day itself, but must include the referendum campaign and, where appropriate, the voter registration period and the signature collection period. It must make it possible to determine whether irregularities occurred before, during or after the vote. It must always be possible during vote counting. c. Observers should be able to go everywhere where operations connected with the referendum are taking place (for example, vote counting and verification). The places where observers are not entitled to be present should be clearly specified by law, with the reasons for their being banned.” (point 3.2. of the Guidelines., p. 11).

    The rationale of international observation is obvious: even if representatives of international organisations are merely passive observers, their reports will decide about the value which is ascribed to the referendum by the international community. Their presence is a guarantee both for the organisers and for the voters that the international standards on procedures, organisation, and side conditions of territorial referendums, are complied with.

    Historical experience shows that international observation of territorial referendums is feasible. Organisations involved in the organisation and/or observation of territorial referendums have so far been notably the United Nations, the European Union, the Organisation of African Unity, and the CSCE/OSCE.

    In State practice, only those territorial referendums which were conducted under international observation have been subsequently recognised by other states. A counterexample is the referendum in the Bosnian Krajina of the Serbian population of Bosnia-Herzegovina of 10 November 1991, which was not internationally monitored. The Arbitral Commission established by the European Community was “of the opinion that the will of the people of Bosnia-Herzegovina to establish a SRH [a Serbian Republic of Bosnia-Herzegovina] as a sovereign and independent state cannot be held to have been fully established” (Opinion No. 4 of the Badinter Commission, paras 3-4, repr. in ILM 31 (1992), 1488 et seq., at 1503). In the case of Ukraine, it OSCE referendum observers were not granted entry, and therefore a fundamental condition for the international legal relevance of the territorial referendum was lacking.

    The Venice Commission had issued an opinion before the 16 March referendum was held, and therein qualified that referendum as problematic from the perspective of “European constitutional principles” (in the sense of a European Common law). The Venice Commission also stated (before the referendum) that “a number of circumstances make it questionable whether the referendum of 16 March 2014 could be held in compliance with international standards.” Venice Commission, Opinion no. 762/2014 of 21 March 2014 (Doc. CDL-AD(2014)002), paras 21-22). These circumstances were the following:

    (1) Lack of legal clarity: The legal rules according to which the referendum was carried out were unclear, because Ukraine did not have a law regulating local referendums.

    (2) Absence of peacefulness and impediment to a free formation of the voter’s will due to at least implicit threats of the use of military force emanating from the massive public presence.

    (3) Concerns with regard to the respect for the freedom of expression in Crimea.

    (4) Difficulty for democratic deliberation and opinion forming due to the excessively short period of only 10 days between the decision to call the referendum and the referendum itself.

    (5) Lack of neutrality of the Crimean authorities due to the 11 March declaration of Crimean independence by the Supreme Rada of Crimea.

    (6) Absence of negotiations about a consensual solution among all stakeholders, especially with participation of all ethnic groups of Crimea (Russian, Ukrainians, Tatars and others).

    These observations are pertinent. Overall, because of the disrespect for the existing international rules on territorial referendums, the 16 March referendum in Crimea could not justify the breakaway of Crimea and its joining with Russia under international law.

    International reactions to the 16 March referendum

    The unequivocal international reactions to the Crimean referendum confirm this assessment. The UN General Assembly passed a resolution entitled “Territorial Integrity of Ukraine” (UN GA Res. A/68/L39 of 27 March 2014) which “underscores that the referendum held in the Autonomous Republic of Crimea and the city of Sevastopol on 16 March 2014, having no validity, cannot form the basis for any alteration of the status of the Autonomous Republic of Crimea or of the city of Sevastopol”(para. 5, emphasis added). States participating in the General Assembly plenary debate pronounced themselves explicitly in this sense, too (for example Ecuador). Other actors held that the referendum was illegal without specifying whether under Ukrainian constitutional law, under international law, or both (Georgia, Iceland), or that it was illegal under Ukrainian constitutional law (the EU and the Venice Commission); or that the referendum was in violation of international law (Moldova and Turkey). Only one state in the General Assembly debate opined that the referendum was legal, and this was North Korea.

    One day before the referendum, the Security Council Draft Resolution (UN Doc. 189/ 2014 of 15 March 2014) was tabled by 42 states. The text was “noting with concern the intention to hold a territorial referendum on the status of Crimea on 16 March 2014” (preamble), and “declares that this referendum cannot have any validity, and cannot form the basis of any alteration of the status of Crimea, and calls upon all States, international organizations and specialized agencies not to recognize any alteration of the status of Crimea on the basis of this referendum (…) ” (para. 5). That resolution was vetoed by Russia, with China abstaining.

    These condemnations stand in stark contrast to the international reactions to the previous Ukrainian referendum of 1 December 1991. That vote had been explicitly and officially welcomed, inter alia by the then EC and its member states and by the United States. Comparing these reactions reveals that territorial referendums are deemed to be a crucial factor for legalising territorial alterations, but only if they are conducted properly.


    The Crimean referendum of 16 March 2014 could not justify the Crimean secession and the territory’s integration into Russia. Neither the procedural nor the material conditions for secession of Crimea (and the immediately ensuing union with Russia) have been met in this spring.

    The modalities and side conditions of that referendum were not in conformity with the European and international standards on that matter. In addition, the substantive conditions for a remedial secession have not been met either. As it looks now, the announced further referendums by the Tatars and by activists in the Donetsk region, will – should they take place – not satisfy these conditions either. Overall, it rather looks as if the 16 March vote and planned future referendums abuse the institution of the territorial referendum.

    The alteration of the territorial status of Crimea remains illegal under international law, and third states are (under Art. 41 ILC Articles on state responsibility) obliged not to recognise it.


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    The Use of ‘Do it Yourself’ Barrel Bombs under International Law

    The Use of ‘Do it Yourself’ Barrel Bombs under International Law

    Among the continuing horrors reported from Syria, it is the use of certain weapons that time and again makes the headlines. While the use of chemical weapons led to an important response from the international community, in recent months attacks with so called ‘barrel bombs’ triggered an international echo. In its latest resolution on Syria the UN Security Council demanded all parties to cease ‘the indiscriminate employment of weapons in populated areas, including shelling and aerial bombardment, such as the use of barrel bombs’. UN Secretary General Ban called these weapons ‘horrendous’, France found that these weapons ‘sought to indiscriminately kill people’, and for the UK the use of these weapons against civilian areas constitutes ‘yet another war crime’ by the Assad regime. Different human rights groups, such as Human Rights Watch or the Syrian Network for Human Rights, report that the use of barrel bombs has caused high numbers of dead, the vast majority of which are civilians. There is no question that war crimes are committed in Syria, especially by the Assad regime. It is, however, less clear to what extent international law prohibits the use of barrel bombs in non-international armed conflicts, and whether their use constitutes a war crime.

    What is a barrel bomb?

    As recently analysed in a very knowledgeable blog entry by the warhead consultant Richard M. Lloyd, barrel bombs used in Syria normally consist of a cylinder – which can be an oil barrel and probably gave the bomb its name – filled with an explosive and metal pieces. It is also reported that more recent versions of these ‘do it yourself’ crude weapons were filled with fuel, and constructed in a way that resembled them to ‘fuel air explosives’ with geographically wide and significant destructive effects. Earlier on in the conflict, smaller versions of these bombs rolled out of helicopters at low altitude, which enabled the Syrian army to aim the bomb at specific targets. In contrast, probably due to improved capacity of opposition forces to target helicopters at low altitude, barrel bombs are increasingly dropped from helicopters at altitudes up to 2000m. In the armed conflict in Syria, barrel bombs provide a way to cause ‘cheap and lethal damage on urban areas’.

    The legality of the use of barrel bombs under international humanitarian law

    Under IHL, a weapon can be absolutely prohibited as an unlawful means of warfare, or the use of these weapons can be illegal in specific circumstances. Barrel bombs would be absolutely prohibited if they were inherently indiscriminate, meaning they cannot be targeted at a military objective. While this may be the case when released from high altitude, this is not necessarily the case when dropped from low altitude where it seems possible to direct the barrel at a specific military target. Thus, these bombs are not inherently indiscriminate.

    The questionable argument has been made that barrel bombs are incendiary weapons the use of which against civilians or military objectives located within a concentration of civilians violates the UN Convention on Certain Conventional Weapons. To be clear, the UN Convention on Certain Conventional Weapons does not apply in Syria because Syria is not a party to it. Still, restrictions on the use of incendiary weapons exist under customary international law. However, in their common form barrel bombs do not appear to fall under the definition of incendiary weapons under customary international law – unless allegations are true that some of these bombs were filled with napalm and primarily designed to set fire to objects or to cause burn injury to persons.

    Barrel bombs have also been condemned as weapons that spread terror among the civilian population. Aerial bombardments, especially in neighbourhoods where civilians are present, give rise to a degree of fear and terror among the population. What would make the use of barrel bombs illegal, however, would be if the primary purpose of their use was to spread terror among the civilian population. This is particularly the case when such weapons are used without producing a military advantage. While this may be the case in some situations in Syria, it might be difficult to show that spreading terror is their primary purpose.

    Instead of resorting to strong terms such as ‘incendiary weapons’ and ‘terror’, reference to fundamental rules of customary IHL provides a prohibition of the use of barrel bombs in the present circumstances. First, it is clear that the use of these bombs is prohibited when they are directed against civilians or civilian objects. But even if it was not possible to show that the Assad regime is targeting civilians and not opposition fighters thought to operate from civilian neighbourhoods, dropping barrel bombs on predominately civilian areas from high altitude undoubtedly constitutes a prohibited indiscriminative attack. Due to the crude nature of barrel bombs, when used in predominantly civilian neighbourhoods they cannot be directed at a specific military target and their use is therefore prohibited.

    Does the use of barrel bombs constitute a war crime?

    If hopefully one day the International Criminal Court, a Syrian national court, or an international(ized) or regional tribunal adjudicates over alleged war crimes committed by all parties to the Syria conflict, the question will arise whether the use of barrel bombs constituted a war crime. War crimes under article 8(2)(e) Rome Statute provide only a limited criminalization of such attacks. Indiscriminate attacks are not explicitly criminalized under the Rome Statute. In order to constitute a war crime, it would need to be proven that the attack was intentionally directed against the civilian population. In this respect, the ICTY argued that ‘indiscriminate attacks, that is to say, attacks which strike civilians or civilian objects and military objectives without distinction, may qualify as direct attacks against civilians’. In addition, the Rome Statute does not provide an exhaustive list of war crimes. The ICRC finds that under international law applying in internal armed conflicts there is sufficient basis to conclude that ‘launching an indiscriminate attack resulting in death or injury to civilians’ constitutes a war crime.

    To sum up, despite their crude nature and the clear difficulty to direct these bombs at military targets, barrel bombs are not absolutely prohibited under IHL. In fact, if the Assad regime used these bombs in circumstances where it was able to target them at military objectives, the use of these bombs would not necessarily be prohibited. However, reports unanimously suggest that barrel bombs are currently intentionally directed at civilian neighbourhoods or dropped from high altitudes in a way that makes it impossible to direct these bombs at military targets. In both circumstances, this constitutes a clear violation of the laws of war, and could amount to war crimes. As a result, it is not the bomb as such that contravenes international rules on armed conflicts, but it is the way Syrian forces employ this weapon that violates IHL, and likely constitutes a war crime.


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    Mapping the Peace: The Request for Interpretation in the Temple of Preah Vihear Case

    Mapping the Peace: The Request for Interpretation in the Temple of Preah Vihear Case

    Inna Uchkunova, New Bulgarian University (LLM), is a member of the International Moot Court Competition Association (IMCCA), Bulgaria. Oleg Temnikov is an Attorney-at-Law and Associate at the Sofia Office of Wolf Theiss law firm.

    There is a fable which tells of two brothers who made their living from farming. They shared a commonPreahvihear farmland and divided the harvest equally. Every year, the night after harvesting, the same thing happened. Each brother would think that the other one deserves a greater share of the grain, so each would fill two sacks and will sneak unnoticed into his brother’s barn to put the sacks there. One such night, the brothers bumped into each other halfway between their houses and thus they understood what has been happening. Word spread in the village and their compatriots decided to make a shrine on the place of their meeting to commemorate the compassion of the two brothers.

    The story of the Temple of Preah Vihear (aerial view above left, credit) is a different one. Instead of bringing people together, it has divided two nations for decades. The Temple has been a source of contention between Cambodia and Thailand since Cambodia’s independence from French rule in the mid-1900s. On 11 November, the ICJ rendered a judgment on Cambodia’s Request for Interpretation of the Court’s 1962 judgment in the Preah Vihear case. This post discusses the history of the case and the recent judgment.

    Cambodia first instituted proceedings before the ICJ in 1959, after Thailand occupied the Temple and negotiations failed to produce a peaceful settlement. Cambodia asked the Court to declare that Cambodia had sovereignty over the Temple and that Thailand was obliged to withdraw its forces. In its final submissions, Cambodia presented additional claims asking the Court to adjudge, inter alia, that “the frontier line between Cambodia and Thailand, in the Dangrek sector, is that which is marked on the map of the Commission of Delimitation between Indo-China and Siam (Annex 1 to the Memorial of Cambodia).” The Court determined this claim to be inadmissible as a “new claim” and held that it “can be entertained only to the extent that [it] give[s] expression to grounds, and not as claims to be dealt with in the operative provisions of the Judgment.”

    In its Judgment on the Merits of 15 June 1962, the Court held that by failing to protest for over fifty years after receipt of the Annex 1 map, Thailand acquiesced to the position of the frontier shown on the map. In the words of the Court, “Thailand… recognized the line on that map as being the frontier line, the effect of which is to situate Preah Vihear in Cambodian territory.” This finding represented a deviation from the Court’s usual treatment of maps. In previous cases, for example in the Frontier Dispute (Burkina Faso/Niger) case, the Court has treated maps as mere circumstantial evidence. In Preah Vihear, however, the Court ruled that “the acceptance of the Annex 1 map by the Parties caused the map to enter the treaty settlement and to become an integral part of it.”

    In view of this conclusion, the Court held that “Thailand is under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory.”

    Given the imprecise language referring to the “vicinity” of the Temple, Thailand claimed that its obligations under the 1962 Judgment would be completely discharged if it withdrew only from the “ruins of the Temple and the ground on which the Temple stood.” As a consequence, Thailand erected a barbed wire fence close to the Temple buildings and installed signs stating, “the vicinity of the Temple of [Preah Vihear] does not extend beyond this limit”.

    Tensions rose in 2007, when Cambodia requested inclusion of the site of the Temple on the World Heritage List. Cambodia sent a map to UNESCO showing the entire promontory of Preah Vihear, as well as the hill of Phnom Trap, to be Cambodian territory. Thailand protested immediately, and a number of armed incidents took place in the border area close to the Temple.

    Cambodia filed a request with the ICJ asking for interpretation of the 1962 Judgment. Cambodia claimed, in essence, that there was a dispute between the parties regarding the scope of the 1962 Judgment, particularly concerning whether the Court had decided with binding force that the line depicted on the Annex I map constitutes the frontier between the Parties in the area of the Temple. The other two points in dispute were the scope of the phrase “vicinity of Cambodian territory” used in the operative clause of the 1962 Judgment and, accordingly, the nature of Thailand’s obligation to withdraw. These questions are the subject of the Judgment on the request for interpretation rendered by the Court on 11 November 2013.

    At the outset, the Court recalled the requirements of Article 60 of the Statute, namely, the existence of dispute between the parties as to the meaning or scope of a judgment rendered by the Court—that is, a dispute concerning the operative clause of the judgment in question, and not to the reasons for the judgment, except insofar as the reasons are inseparable from the operative clause. In other words, the object of a request for interpretation “must be solely to obtain clarification of the meaning and the scope of what the Court has decided with binding force, and not to obtain an answer to questions not so decided.” The Court also clarified in response to a contention raised by Cambodia that the headnote of the Judgment cannot provide guidance as to its scope and that it does not represent “an authoritative summary of what the Court has actually decided.”

    Further, with a view to the primacy of the principle of res judicata, the Court noted that the real purpose of the request for interpretation must be to obtain an interpretation of the judgment and not, for example, to achieve revision of the judgment or to delay its implementation. With these considerations in mind, the Court decided the following:

      • By way of interpretation, the “vicinity” of the Temple means the entire promontory of Preah Vihear but excluding the hill of Phnom Trap. The Court reached this conclusion having regard to the evidence before the Court in 1962. Thus, the obligation to withdraw could only have referred to the place actually occupied by Thailand. By the time the 1962 Judgment was rendered this was exactly the promontory of Preah Vihear.
    • The Court could not pronounce or give any clarification on the question whether the line shown on the Annex 1 map constitutes the frontier between the Parties, given that the Court did not decide this question with binding force in the 1962 Judgment. The Court merely stated,

    In these circumstances, the Court does not consider it necessary further to address the question whether the 1962 Judgment determined with binding force the boundary line between Cambodia and Thailand. In a dispute concerned only with sovereignty over the promontory of Preah Vihear, the Court concluded that that promontory, extending in the north to the Annex I map line but not beyond it, was under Cambodian sovereignty. That was the issue which was in dispute in 1962 and which the Court considers to be at the heart of the present dispute over interpretation of the 1962 Judgment.

      • Thailand was under an obligation to withdraw its forces from the territory of the promontory of Preah Vihear.
      • Interestingly, Thailand had argued that, in deciding upon the request for interpretation, the Court must consider the practice of the two States in the period after the 1962 Judgment. The Court disagreed in strong terms, finding, “A judgment of the Court cannot be equated to a treaty, an instrument which derives its binding force and content from the consent of the contracting States and the interpretation of which may be affected by the subsequent conduct of those States, as provided by the principle stated in Article 31, paragraph 3 (b), of the 1969 Vienna Convention on the Law of Treaties.”
    • Finally, the Parties have a duty to settle any dispute between them by peaceful means.

    Because it refused to clarify whether the line shown on the Annex 1 map constitutes the frontier between the Parties, the Court was unable to put an end to a long-lasting dispute between Cambodia and Thailand. On the other hand, this question was not before the Court in 1962, and it was not decided with binding force but merely included in the reasoning of the Judgment. The Court had found this claim inadmissible as a new claim, although this is not explicitly stated in the 1962 Judgment. If the 2013 Court had provided an interpretation on this point, it would have substituted itself for the 1962 Court by adding a question which was not decided at that time in the operative part. In effect, this aspect of Cambodia’s request amounted to a request for revision. Thailand’s behavior could also be criticized as hardly meeting the standard of good faith required in the implementation of the judgments of the principal judicial organ of the United Nations.

    More generally, greater clarity in the drafting of judgments could prevent exacerbation of existing disputes in future cases. The Preah Vihear case demonstrates how things may go wrong when expressions in the judgment are susceptible to more than one interpretation by the parties. Nonetheless, the Court’s judgment on interpretation does not seem to have surprised either of the two litigant States and has been fairly positively accepted. As noted by one commentator for the blog Siam Voices “[o]n the surface, a lot of tension has been diffused today.”

    This is the hope of the world community. In Sanskrit, Preah means “sacred” and Vihear means “shrine”. While the Temple is sacred for both nations, thus provoking this long-running dispute, peace is more sacred.





Separatist unrest spreads in Ukraine; ultimatum ends with no crackdown

Separatist unrest spreads in Ukraine; ultimatum ends with no crackdown

(Reuters) – Pro-Russian separatists on Monday ignored an ultimatum to leave occupied government buildings in eastern Ukraine while another group of rebels attacked a police headquarters as a threatened military offensive by government forces failed to materialize.

Rebels in the town of Slaviansk, which was expected on Monday to be the focus of a broad government “anti-terrorist” operation involving the army, issued a bold call for Russian President Vladimir Putin to help them.

Ukraine’s interim president Oleksander Turchinov said on Monday the offensive would still go ahead. But in a sign of discord behind the scenes in Kiev, he sacked the state security chief in charge of the operation.

Turchinov also took a risky step to try to undercut rebels’ demands by holding out the prospect of a referendum on the future shape of the Ukrainian state. He suggested a nationwide referendum could be held at the same time as a presidential election on May 25.

Pro-Russian secessionists want referendums to be held, but only in their regions in the east, which Kiev says is illegal.

The uprising by armed men in uniform who have seized buildings in towns across eastern Ukraine began eight days ago and has accelerated in the past 48 hours, with separatists seizing ever more buildings on behalf of a self-proclaimed independent “People’s Republic of Donetsk”.

Kiev says the separatists are organized by Moscow and include Russian troops in their midst, openly seeking to repeat the seizure of the Crimea region, which Moscow occupied and annexed last month.

Russia says the armed men are all locals acting on their own but it retains the right to intervene to protect them. NATO says Russia has tens of thousands of troops massed on the frontier.

The European Union threatened Russia with more sanctions. Britain said Moscow was clearly behind Ukraine’s instability, although other EU states said diplomacy should be given more time.

As the 9 a.m. deadline issued by authorities in Kiev expired, a Reuters reporter in the flashpoint city of Slaviansk, where armed men had seized two government buildings, saw nothing to show the rebels were obeying the ultimatum.

One of the rebel leaders, in an appeal issued through journalists, asked Putin to “help us as much as you can”.

The Kremlin said the Russian president was listening.

“Unfortunately, there’s a great many such appeals coming from the Eastern Ukrainian regions addressed directly to Putin to intervene in this or that form,” spokesman Dmitry Peskov said. “The president is watching the developments in Eastern Ukraine with great concern.”

Also in Slaviansk, about 150 km (90 miles) from the Russian border, a small airfield which was occupied by Ukrainian air force planes on Sunday was empty on Monday and pro-separatist forces said they were now in control of it.

In the town of Horlivka, meanwhile, about 100 pro-Russian separatists attacked the police headquarters. Video footage on Ukrainian television showed an ambulance treating people apparently injured in the attack.

In all, separatists have seized government buildings and security facilities in 10 cities, adding to a growing sense that Ukraine’s industrial heartland is slipping out of its grip.

Angered by the death of a state security officer and the wounding of two comrades near Slaviansk, Turchinov warned rebels that an anti-terrorist operation involving the army would begin unless they laid down their arms.


Russia’s foreign ministry called the planned military operation a “criminal order” and said the West should bring its allies in Ukraine’s government under control.

Outside the Slaviansk city council offices stood a group of about 12 armed men in matching camouflage fatigues with black masks, one of whom was holding a Russian flag.

They said they were Cossacks – paramilitary fighters descended from Tsarist-era border patrolmen – but did not say where from. One told Reuters: “The borders between Ukraine, Russia and Belarus are artificial and we are here to take them away.”

The new element in the operation announced by Turchinov is the inclusion of the army which until now had not been involved in more than four months of turmoil and is untested in dealing with internal disorder. The plan implies a lack of confidence in the 30,000-strong interior ministry troops, partly discredited by identification with ousted president Viktor Yanukovich.

The defense ministry on Monday remained silent and would not comment on the army’s role.


Turchinov said the Kiev leadership was “not against” a nationwide referendum being held on the type of state Ukraine should be, adding he was sure it would confirm the wish of the majority for a united, independent country.

Russian Foreign Minister Sergei Lavrov said Ukraine’s Russian-speaking eastern regions should be involved in drafting a constitution that should be put to a referendum.

Lavrov said it was not in Russia’s interests for Ukraine to break up but Moscow wanted all citizens of the country to be given equal treatment by Kiev. He denied Ukrainian and U.S. allegations that Russia had undercover agents fomenting the unrest in eastern Ukraine.

The crisis in Ukraine has brought relations between Russia and the West to their worst since the end of the Cold War in 1991, and also risks unleashing a “gas war” which could disrupt energy supplies across Europe.

Ukraine said on Saturday it would stop paying for Russian gas because the price was too high.

Kiev is also talking with Slovakia – the main route for gas from Russia through Ukraine to Europe – about reversing pipes so that Ukraine can buy gas from the EU if Russia cuts it off.

Russian stocks and the ruble fell sharply on Monday, reflecting fears of further Russian military intervention in Ukraine and more western sanctions against Moscow.

Moscow has largely brushed off sanctions so far, which the United States and Europe have explicitly designed to target only a limited number of officials and avert wider economic harm.

British Foreign Secretary William Hague said it was now time to consider broader sanctions. The destabilization of eastern Ukraine was clearly being instigated by Russia, he added: “I don’t think denials of Russian involvement have a shred of credibility.

He said some of the separatist gunmen were well armed and appeared to be well-trained, just like those who appeared in Crimea and later turned out to be Russian troops.

German Vice Chancellor Sigmar Gabriel warned of an escalation of the crisis in Ukraine, saying “Russia was clearly prepared to allow tanks to roll across European borders”.

Nevertheless, other European officials said it was too early to impose new sanctions for now. Several said the deadline for Russia to de-escalate would be Thursday, when Russian and Western officials are set to discuss Ukraine in Geneva.

In Slaviansk as Monday’s 9 a.m. ultimatum expired, a Russian flag still flew over police headquarters, one of two buildings taken over by the separatists in the town. Masked men continued to man barricades of sandbags in front of it.

Even as the deadline passed, a truck appeared bringing more tires to heap on top of the barricades to reinforce them.

(Additional reporting by Natalia Zinets; Editing by Giles Elgood and Peter Graff)



U.S. Says Iran’s Pick for U.N. Envoy Won’t Get a Visa

U.S. Says Iran’s Pick for U.N. Envoy Won’t Get a Visa

U.S. Says Iran’s Pick for U.N. Envoy Won’t Get a VisaWASHINGTON — The Obama administration on Friday said it would bar an Iranian diplomat nominated as United Nations ambassador from entering the country, in a rebuke to Iran at a time when the United States is engaged in delicate negotiations with Tehran over its nuclear program.

The unusual decision follows a political tempest on Capitol Hill related to the diplomat’s involvement in the 1979-81 Iran hostage crisis. But American officials said they did not expect the decision to disrupt the nuclear talks, which involve five other major powers.

The White House and the State Department did not give a specific reason for refusing to issue a visa to the diplomat, Hamid Aboutalebi, who was a translator for the militant student group that stormed the American Embassy in Tehran in 1979 and held Americans hostage for 444 days.

By not explicitly rejecting the visa application, the White House appeared to be leaving Iran a way to resolve the standoff. It can withdraw Mr. Aboutalebi’s nomination, claiming inaction on the part of the United States and saying that it needs to fill an important diplomatic post.

On Tuesday, after the Senate voted unanimously to bar Mr. Aboutalebi from the United States, the administration said it had warned the Iranian government that his nomination was “not viable.” The House unanimously passed the same legislation on Thursday.

“We certainly share the intent of the bill passed by Congress,” said the White House spokesman, Jay Carney. “We have already told the U.N. and Iran that we will not issue a visa.”

Before deciding whether to sign it, President Obama will review the constitutionality of the legislation, which would ban any would-be United Nations representative who has been involved in terrorism or espionage against the United States from entering the country, Mr. Carney said.

Under a 1947 law that established the headquarters of the United Nations in New York, the United States is obligated to issue visas to diplomats assigned there, even those it finds objectionable. But the United States has reserved the right to turn down people based on concerns over security, terrorism or foreign policy issues.

Administration officials did not dispute suggestions that Mr. Aboutalebi’s role in the hostage crisis was the cause of the action against him. “I think it’s fair to say that the discussions around this, the reporting on it, the views expressed in the discussions on Capitol Hill, and in the legislation itself reflect our views,” Mr. Carney said.

In a statement on Friday, the Iranian Mission to the United Nations said, “It is a regrettable decision by the U.S. administration, which is in contravention of international law, the obligation of the host country and the inherent right of sovereign member states to designate their representatives to the United Nations.”

Mr. Aboutalebi issued his own criticism, saying on Twitter that the United States, “legally speaking, has initiated a new and unprecedented path, and that is to violate the international conventions of the country by national parliamentary approvals,” according to a translation of the message, which was written in Persian.

The dispute over Mr. Aboutalebi’s nomination came as the United States and Iran have sought to defuse some of their tensions, working on an agreement over the Iranian nuclear program.

Administration officials, however, said the subject did not intrude on the last round of negotiations, held in Vienna, and they predicted that it would not affect the chances of an agreement, since the Iranian government had other motivations to conclude a deal.

“They have their own reasons for that, including the impact of sanctions and their desire to deliver on” the promise that President Hassan Rouhani campaigned on, said the State Department spokeswoman, Jen Psaki.

While there are still significant gaps between the two sides, diplomats from Iran and the major powers are expected to begin drafting the language of a final nuclear agreement at the next round of talks in Vienna, an American official said.

Senator Ted Cruz, a Texas Republican, and Representative Doug Lamborn, a Colorado Republican, were sponsors of the legislation to block the diplomat’s visa. The unanimity of the votes on the measure underscored the political liabilities of looking weak on Iran, which many Democrats and Republicans have described as a malevolent adversary, despite the administration’s efforts to ease tensions.

“It is great to see Congress send a strong, bipartisan message that Iranian evildoers will be treated like terrorists, not tourists,” Mr. Lamborn said in a statement.

Iran’s foreign minister, Mohammad Javad Zarif, an American-educated diplomat who once held the post of United Nations ambassador, had signaled before the House vote that Mr. Aboutalebi remained Iran’s choice.

“We have told the Americans that we have introduced one of the most experienced, logical and ambassadorial individuals,” Mr. Zarif said Wednesday in Vienna.

Despite the sharp language, some American specialists on Iran said they did not foresee the dispute sabotaging the broader efforts aimed at achieving a nuclear agreement.

“We expect diplomatic bickering for the next couple weeks, probably followed by a new nomination from Iran,” said Cliff Kupchan, an Iran analyst at the Eurasia Group, a political risk consulting firm in Washington.


Cohen: Theorizing Precedent in International Law

Cohen: Theorizing Precedent in International Law

Harlan Grant Cohen (Univ. of Georgia – Law) has posted Theorizing Precedent in International Law (in Interpretation in International Law, Andrea Bianchi, Daniel Peat & Matthew Windsor eds., forthcoming). Here’s the abstract:

Precedent presents a puzzle for international law. As a matter of doctrine, judicial decisions construing international law are not-in-and-of themselves law. They are not binding on future parties in future cases, even before the same tribunal. And yet, international precedent is everywhere. From international investment to international criminal law to international human rights to international trade, prior decisions are invoked, argued over, and applied as precedents by practitioners and by tribunals.

How and why do certain interpretations of international law take on the weight of precedent, reshaping international law arguments around them, while others do not? This chapter develops a framework for explaining the emergence of precedent in international law that can begin to solve this puzzle. It focuses on three sets of factors relevant to a prior interpretation’s precedential weight, (1) the varied potential sources of precedent, (2) the factors that might imbue a source with authority, (3) and the actors and audiences who might invoke a precedent or respond it, before weaving them into three overlapping accounts of how these factors interact, (1) a rationalist account, (2) a jurisprudential account, (3) and a sociological account. The chapter ends with a couple of case-studies that demonstrate how these factors and accounts can help explain the actual patterns of precedent we observe in international law today.




CRC Concluding Observations on the Holy See

CRC Concluding Observations on the Holy See

The UN Committee on the Rights of the Child released today its concluding observations on the second periodic report of the Holy See. The report is making waves in the media because of the Committee’s very strong condemnation of the inadequacy of the Catholic Church’s response to the sexual abuse of children by its clergy all over the world. The full report is available here, and has many points of interest. The first, and indeed the most crucial from the standpoint of public international law, is how the Committee defines the scope of the Holy See’s obligations under the Convention, in para. 8:

The Committee is aware of the dual nature of the Holy See’s ratification of the Convention as the Government of the Vatican City State, and also as a sovereign subject of international law having an original, non-derived legal personality independent of any territorial authority or jurisdiction. While being fully conscious that bishops and major superiors of religious institutes do not act as representatives or delegates of the Roman Pontiff, the Committee nevertheless notes that subordinates in Catholic religious orders are bound by obedience to the Pope in accordance with Canons 331 and 590. The Committee therefore reminds the Holy See that by ratifying the Convention, it has committed itself to implementing the Convention not only on the territory of the Vatican City State but also as the supreme power of the Catholic Church through individuals and institutions placed under its authority.

This paragraph is the necessary starting point for practically all of the analysis that follows, and indeed the representatives of the Holy See have already put it into question (see the second para.). The Committee is essentially saying that the Holy See doesn’t merely have obligations under the Conventions towards children within the Vatican City limits – if there even are any – but also towards the millions of children whose lives are affected by individuals or institutions under Church authority, be it local priests or Church-run schools. This is, in other words, a massive claim on the Convention’s extraterritorial application, and if I’m not mistaken this is the first time it has been made so explicitly by a treaty body with respect to the Holy See. Note in this regard that the Committee does not employ the language of the jurisdiction clause in Article 2(1) CRC, nor makes it clear under what theory exactly the Convention applies extraterritorially on such a scale.

The bottom line of the Committee’s approach is that if, for instance, there are reports of sexual abuse of children by Catholic clergy in Ireland, both Ireland and the Holy See have a positive obligation to protect and ensure the human rights of these children (see paras. 37-38, 43-44). In that sense the Committee’s report complements rather well the European Court’s judgment of last week in O’Keeffe v. Ireland (application no. 35810/09), in which the Court found that Ireland failed to protect a schoolgirl from sexual abuse by a lay teaching in a Catholic school. On the whole, the Committee’s findings with respect to the sexual abuse of children are quite damning – see, e.g., para. 29: ‘The Committee is particularly concerned that in dealing with allegations of child sexual abuse, the Holy See has consistently placed the preservation of the reputation of the Church and the protection of the perpetrators above children’s best interests, as observed by several national commissions of inquiry.’

Outside the question of sexual abuse, the report’s many findings and recommendations frequently demonstrate a clash of worldviews between the obviously very progressive, human-rightsy Committee and some of the socially conservative beliefs of the Catholic Church. The Committee thus recommends the Holy See to review its position on abortion, contraception, sexual orientation, family diversity, etc. (Good luck with that.) In that regard, the bit I found positively entertaining (and oh-so-very-Jesuit) is the Committee’s recommendation to the Holy See to (paras. 22 & 24):

strengthen its efforts to make all the provisions of the Convention widely known, particularly to children and their families, through, inter alia, developing and implementing specific long-term awareness-raising programmes, and including the provisions of the Convention into school curricula at all levels of the Catholic education system using appropriate material created specifically for children. … The Committee urges the Holy See to provide systematic training on the provisions of the Convention to all members of the clergy as well as Catholic orders and institutions working with and/or for children, and to include mandatory modules on children’s rights in the teachers’ training programmes as well as in seminaries.





OUP Debate Map on “Disputes in the South and East China Seas”

OUP Debate Map on “Disputes in the South and East China Seas”

Readers interested in the territorial and maritime boundary disputes between China and her neighbours in the South and East China Seas will welcome the creation by Oxford University Press of a “Debate Map” on the topic. The  “Debate Map” is a valuable way of keeping track of scholarly commentary, in journals and blogs, on the range of issues related to those territorial and maritime disputes. It is essentially an index which categorises and:

maps scholarly commentary on the international law aspects of the conflicts in and around the South China and East China Seas, including maritime boundary disputes, the question of sovereignty over the Senkaku/Diaoyu islands, China’s recent announcement of an Air Defence Identification Zone, and the Philippines/China UNCLOS arbitration. It brings together primary documents with discussions in English-language legal blogs and a selection of journal articles.

Readers can “[u]se this map to review scholarly arguments and to keep track of which issues have been covered and who has said what.” OUP has also made available a range of online OUP materials on these issues (see the Oxford Public International Law Page).

The current Debate Map is the third such Map created by the Law team at OUP. The first was on The Use of Force Against Syria and was noted by John Louth here. The second on the Prosecution of Heads of States and Other Senior Officials at the ICC was discussed by Merel Alstein here. These debate maps are regularly updated and as Merel explains “aim to provide a quick overview of the relevant legal problems and controversies but also to create an archive of scholarship that can be referred back to  . . .”


“The City and the City” and Public International Law

“The City and the City” and Public International Law

City and CityThe City and the City. It is, at its core, a novel about jurisdiction, and its setting is one of Miéville’s most fascinating creations. Miéville himself is no stranger to international law, being the author of Between Equal Rights: A Marxist Theory of International Law (2005). His novel demonstrates an unsurprising interest with the possibilities of law and its relationship to society and culture.

Superficially, The City and the City is a police procedural. In Besźel, a declining city-state somewhere in Eastern Europe, inspector Tyador Borlú finds a murdered woman. The suspicion is she was murdered in the neighbouring city-state of Ul Qoma. The extraordinary part of the novel is the relationship between these two cities. They are legally separate sovereign nations occupying the same physical space. While some “total” streets or districts belong entirely to one nation or the other, many are “crosshatched”. In these areas the two cities physically coexist alongside each other but legally their citizens may not interact, nor in any manner acknowledge each other’s existence, nor respond to events occurring in the “other” city. This difficulty is managed by the cultural practice of “unseeing” those things one is not legally entitled to see. (Given a moment’s thought this is less implausible than many speculative or weird fiction premises. Most of us unsee things of greater and lesser importance in our urban environment we find inconvenient to acknowledge: the homeless, the mentally disturbed, those collecting for charity, tedious acquaintances, etc.)

In Besźel and Ul Qoma, when illicit interaction occurs across the legal and cultural boundary between the cities it is called “breach” – and it is a crime. At its most trivial, it is momentarily seeing something one should not; at its most serious it involves physical contact. If you live in Besźel but the house next door is in Ul Quoma, throwing something into your neighbour’s back yard is breach irrespective of whether what you throw is drugs, or a hammer, or garbage. Inspector Borlú, in a maudlin moment, commits a minor, untraceable form of breach by staring at the elevated railway that passes his house – but which he may not see because it is in Ul Quoma. These crimes are dealt with by a sinister agency outside the police – an agency also called Breach. The principal sanction for breaching, it seems, is disappearance. Those taken by Breach are not seen again.

There is only one legal border crossing between the two cities, a set of shared check-points where one may pass into (and see) the other city which is otherwise constantly around one but deliberately unseen. Smuggling across this legal border is not breach, though it may otherwise involve a crime in both cities. Miéville creates a witty vocabulary to describe this legal situation. The same physical street may contain a very different district in each city and will certainly have a different name: these distinct but co-located streets are said to be “topplegangers” and the buildings in them which legally exist in different cities are “grosstopically” adjacent.

So what does the setting of this novel say to public international lawyers? The obvious legal-historical parallels of divided cities (Berlin, Jerusalem, etc) or officially bilingual cities with duplicate street signs are scoffed at by the characters themselves. The ideas being played with by Miéville are broader than that. First, the novel obviously says something about the coexistence of sovereigns and the way states are both legal realities an act of collective imagination. In Brunée and Toope’s terms law here is portrayed as an interactional and socially collaborative enterprise. The border between the two cities exists only because the citizens on both sides will and enact its existence, and their elaborate non-interactions (which are of course a form of interaction) reinforce this social rule and legal norm. From an Allottian perspective, we have here a case of law shaping social reality (the legal constitution impacting on the real constitution of society), or perhaps vice versa.

We might, however, think that any parallels with international law are readily overstated. After all, an independent agency, Breach, polices this border. Thus, the legal world portrayed in the novel does not suffer from the “Austinian handicap” of public international law. Here we have a command that is obviously backed by a sanction. At the same time, however, it’s made clear that the resources of Breach are, like those of a superpower or terrorist organization, ultimately limited. Breach is effective because the rules are generally obeyed without sanction and in a crisis Breach’s ability to maintain order relies on the tacit cooperation both cities’ citizenry.

Further, while seeming at first a completely extra-legal agency engaging in a species of rendition or enforced disappearance, Breach is in some ways a quaintly legalistic organisation. Its legitimacy ultimately rests on a delegated authority from the two cities’ “oversight committee” (a tiny international organisation that manages certain joint resources). Breach’s sphere of authority is also circumscribed by law. It can only act in situations where the omnipresent border between the two cities has actually been violated. While its powers are extreme and extra-legal, the cases in which they can be deployed are tightly limited. (Although the question of who shall guard the guards themselves is clearly raised by the end of the novel.) In Breach we thus see hints of the war on terror and recent constitutional and international law debates about who holds the power to decide the exception.

Finally, two major turning points in the story involve a gunshot being fired across a border in a fairly clear nod to the classic (or clichéd) starting point to a lecture on jurisdiction.

I’ve only really scratched the surface here, and haven’t even ventured into the possibility that the plot centers on: that there is, concealed in spaces between the two cities, a third city entirely. It’s a fascinating novel which could only really be faulted for a somewhat rushed final exposition of whodunit and why.


Security Council Requires Scheduled Destruction of Syria’s Chemical Weapons, Unanimously Adopting Resolution 2118 (2013) – S/RES/2118

Security Council Requires Scheduled Destruction of Syria’s Chemical Weapons, Unanimously Adopting Resolution 2118 (2013)

Security Council Requires Scheduled Destruction of Syria's Chemical Weapons, Unanimously Adopting Resolution 2118 (2013)The full text of Security Council resolution 2118 (2013) reads as follows:

The Security Council,

Recalling the Statements of its President of 3 August 2011, 21 March 2012, 5 April 2012, and its resolutions 1540 (2004), 2042 (2012) and 2043 (2012),

Reaffirming its strong commitment to the sovereignty, independence and territorial integrity of the Syrian Arab Republic,

Reaffirming that the proliferation of chemical weapons, as well as their means of delivery, constitutes a threat to international peace and security,

Recalling that the Syrian Arab Republic on 22 November 1968 acceded to the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare, signed at Geneva on 17 June 1925,

Noting that on 14 September 2013, the Syrian Arab Republic deposited with the Secretary-General its instrument of accession to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (Convention) and declared that it shall comply with its stipulations and observe them faithfully and sincerely, applying the Convention provisionally pending its entry into force for the Syrian Arab Republic,

Welcoming the establishment by the Secretary-General of the United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic (the Mission) pursuant to General Assembly resolution 42/37 C (1987) of 30 November 1987, and reaffirmed by resolution 620 (1988) of 26 August 1988, and expressing appreciation for the work of the Mission,

Acknowledging the report of 16 September 2013 (S/2013/553) by the Mission, underscoring the need for the Mission to fulfil its mandate, and emphasizing that future credible allegations of chemical weapons use in the Syrian Arab Republic should be investigated,

Deeply outraged by the use of chemical weapons on 21 August 2013 in Rif Damascus, as concluded in the Mission’s report, condemning the killing of civilians that resulted from it, affirming that the use of chemical weapons constitutes a serious violation of international law, and stressing that those responsible for any use of chemical weapons must be held accountable,

Recalling the obligation under resolution 1540 (2004) that all States shall refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use weapons of mass destruction, including chemical weapons and their means of delivery,

Welcoming the Framework for Elimination of Syrian Chemical Weapons dated 14 September 2013, in Geneva, between the Russian Federation and the United States of America (S/2013/565), with a view to ensuring the destruction of the Syrian Arab Republic’s chemical weapons programme in the soonest and safest manner, and expressing its commitment to the immediate international control over chemical weapons and their components in the Syrian Arab Republic,

Welcoming the decision of the Executive Council of the Organization for the Prohibition of Chemical Weapons (OPCW) of 27 September 2013 establishing special procedures for the expeditious destruction of the Syrian Arab Republic’s chemical weapons programme and stringent verification thereof, and expressing its determination to ensure the destruction of the Syrian Arab Republic’s chemical weapons program according to the timetable contained in the OPCW Executive Council decision of 27 September 2013,

Stressing that the only solution to the current crisis in the Syrian Arab Republic is through an inclusive and Syrian-led political process based on the Geneva Communiqué of 30 June 2012, and emphasising the need to convene the international conference on Syria as soon as possible,

Determining that the use of chemical weapons in the Syrian Arab Republic constitutes a threat to international peace and security,

Underscoring that Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Council’s decisions,

“1. Determines that the use of chemical weapons anywhere constitutes a threat to international peace and security;

“2. Condemns in the strongest terms any use of chemical weapons in the Syrian Arab Republic, in particular the attack on 21 August 2013, in violation of international law;

“3. Endorses the decision of the OPCW Executive Council 27 September 2013, which contains special procedures for the expeditious destruction of the Syrian Arab Republic’s chemical weapons programme and stringent verification thereof and calls for its full implementation in the most expedient and safest manner;

“4. Decides that the Syrian Arab Republic shall not use, develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to other States or non-State actors;

“5. Underscores that no party in Syria should use, develop, produce, acquire, stockpile, retain, or transfer chemical weapons;

“6. Decides that the Syrian Arab Republic shall comply with all aspects of the decision of the OPCW Executive Council of 27 September 2013 (Annex I);

“7. Decides that the Syrian Arab Republic shall cooperate fully with the OPCW and the United Nations, including by complying with their relevant recommendations, by accepting personnel designated by the OPCW or the United Nations, by providing for and ensuring the security of activities undertaken by these personnel, by providing these personnel with immediate and unfettered access to and the right to inspect, in discharging their functions, any and all sites, and by allowing immediate and unfettered access to individuals that the OPCW has grounds to believe to be of importance for the purpose of its mandate, and decides that all parties in Syria shall cooperate fully in this regard;

“8. Decides to authorize an advance team of United Nations personnel to provide early assistance to OPCW activities in Syria, requests the Director-General of the OPCW and the Secretary-General to closely cooperate in the implementation of the Executive Council decision of 27 September 2013 and this resolution, including through their operational activities on the ground, and further requests the Secretary-General, in consultation with the Director-General of the OPCW and, where appropriate, the Director-General of the World Health Organization, to submit to the Council within 10 days of the adoption of this resolution recommendations regarding the role of the United Nations in eliminating the Syrian Arab Republic’s chemical weapons program;

“9. Notes that the Syrian Arab Republic is a party to the Convention on the Privileges and Immunities of the United Nations, decides that OPCW-designated personnel undertaking activities provided for in this resolution or the decision of the OPCW Executive Council of 27 September 2013 shall enjoy the privileges and immunities contained in the Verification Annex, Part II(B) of the Chemical Weapons Convention, and calls on the Syrian Arab Republic to conclude modalities agreements with the United Nations and the OPCW;

“10. Encourages Member States to provide support, including personnel, technical expertise, information, equipment, and financial and other resources and assistance, in coordination with the Director-General of the OPCW and the Secretary-General, to enable the OPCW and the United Nations to implement the elimination of the Syrian Arab Republic’s chemical weapons programme, and decides to authorize Member States to acquire, control, transport, transfer and destroy chemical weapons identified by the Director-General of the OPCW, consistent with the objective of the Chemical Weapons Convention, to ensure the elimination of the Syrian Arab Republic’s chemical weapons programme in the soonest and safest manner;

“11. Urges all Syrian parties and interested Member States with relevant capabilities to work closely together and with the OPCW and the United Nations to arrange for the security of the monitoring and destruction mission, recognizing the primary responsibility of the Syrian Government in this regard;

“12. Decides to review on a regular basis the implementation in the Syrian Arab Republic of the decision of the OPCW Executive Council of 27 September 2013 and this resolution, and requests the Director-General of the OPCW to report to the Security Council, through the Secretary-General, who shall include relevant information on United Nations activities related to the implementation of this resolution, within 30 days and every month thereafter, and requests further the Director-General of the OPCW and the Secretary-General to report in a coordinated manner, as needed, to the Security Council, non-compliance with this resolution or the OPCW Executive Council decision of 27 September 2013;

“13. Reaffirms its readiness to consider promptly any reports of the OPCW under Article VIII of the Chemical Weapons Convention, which provides for the referral of cases of non-compliance to the United Nations Security Council;

“14. Decides that Member States shall inform immediately the Security Council of any violation of resolution 1540(2004), including acquisition by non-State actors of chemical weapons, their means of delivery and related materials in order to take necessary measures therefore;

“15. Expresses its strong conviction that those individuals responsible for the use of chemical weapons in the Syrian Arab Republic should be held accountable;

“16. Endorses fully the Geneva Communiqué of 30 June 2012 (Annex II), which sets out a number of key steps beginning with the establishment of a transitional governing body exercising full executive powers, which could include members of the present Government and the opposition and other groups and shall be formed on the basis of mutual consent;

“17. Calls for the convening, as soon as possible, of an international conference on Syria to implement the Geneva Communiqué, and calls upon all Syrian parties to engage seriously and constructively at the Geneva Conference on Syria, and underscores that they should be fully representative of the Syrian people and committed to the implementation of the Geneva Communiqué and to the achievement of stability and reconciliation;

“18. Reaffirms that all Member States shall refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, and calls upon all Member States, in particular Member States neighbouring the Syrian Arab Republic, to report any violations of this paragraph to the Security Council immediately;

“19. Demands that non-State actors not develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, and calls upon all Member States, in particular Member States neighbouring the Syrian Arab Republic, to report any actions inconsistent with this paragraph to the Security Council immediately;

“20. Decides that all Member States shall prohibit the procurement of chemical weapons, related equipment, goods and technology or assistance from the Syrian Arab Republic by their nationals, or using their flagged vessels or aircraft, whether or not originating in the territory of the Syrian Arab Republic;

“21. Decides, in the event of non-compliance with this resolution, including unauthorized transfer of chemical weapons, or any use of chemical weapons by anyone in the Syrian Arab Republic, to impose measures under Chapter VII of the United Nations Charter;

“22. Decides to remain actively seized of the matter.

Annex I

OPCW Executive Council Decision

Decision on destruction of Syrian chemical weapons

“The Executive Council,

“Recalling that following its thirty-second Meeting, 27 March 2013, the Chairperson of the Executive Council (hereinafter “the Council”) issued a statement (EC-M-32/2/Rev.1, dated 27 March 2013) expressing “deep concern that chemical weapons may have been used in the Syrian Arab Republic”, and underlining that “the use of chemical weapons by anyone under any circumstances would be reprehensible and completely contrary to the legal norms and standards of the international community”;

“Recalling also that the third Review Conference (RC-3/3*, 19 April 2013) expressed “deep concern that chemical weapons may have been used in the Syrian Arab Republic and underlined that use of chemical weapons by anyone under any circumstances would be reprehensible and completely contrary to the legal norms and standards of the international community”;

“Noting the “Report on the Alleged Use of Chemical Weapons in the Ghouta area of Damascus on 21 August 2013,” (S/2013/553, dated 16 September 2013) prepared by the United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic, dated 16 September 2013, which concludes that “chemical weapons have been used in the ongoing conflict between the parties in the Syrian Arab Republic, also against civilians, including children, on a relatively large scale”;

“Condemning in the strongest possible terms the use of chemical weapons;

“Welcoming the Framework for Elimination of Syrian Chemical Weapons agreed upon by the United States and the Russian Federation on 14 September 2013
(EC-M-33/NAT.1, dated 17 September 2013);

“Noting also that on 12 September 2013, in its communication to the Secretary-General of the United Nations, the Syrian Arab Republic notified its intention to apply the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on their Destruction (hereinafter “the Convention”) provisionally;

“Noting further that on 14 September 2013, the Syrian Arab Republic deposited with the Secretary-General of the United Nations its instrument of accession to the Convention and declared that it shall comply with its stipulations and observe them faithfully and sincerely, applying the Convention provisionally pending its entry into force for the Syrian Arab Republic, which was notified to all States Parties by the depositary on the same date (C.N.592.2013.TREATIES-XXVI.3), and taking into account that the depositary received no communications to the contrary from the States Parties with regard to this declaration;

“Noting further that the Convention enters into force for the Syrian Arab Republic on 14 October 2013;

“Recognizing the extraordinary character of the situation posed by Syrian chemical weapons and determined to ensure that the activities necessary for the destruction of the Syrian chemical weapons programme start immediately pending the formal entry into force of the Convention with respect to the Syrian Arab Republic, and are conducted in the most rapid and safe manner;

“Recognizing also the invitation of the Government of the Syrian Arab Republic to receive immediately a technical delegation from the OPCW and to cooperate with the OPCW in accordance with the provisional application of the Convention prior to its entry into force for the Syrian Arab Republic, and noting the designation by the Syrian Arab Republic to the Technical Secretariat (hereinafter “the Secretariat”) of its National Authority;

“Emphasising that the provisional application of the Convention gives immediate effect to its provisions with respect to the Syrian Arab Republic;

“Noting further that the Syrian Arab Republic submitted on 19 September 2013 the detailed information, including names, types and quantities of its chemical weapons agents, types of munitions and location and form of storage, production, and research and development facilities;

“Noting further that pursuant to paragraph 36 of Article VIII of the Convention, the Council, following its consideration of doubts or concerns regarding compliance and cases of non-compliance, shall, in cases of particular gravity and urgency, bring the issue or matter, including relevant information and conclusions, directly to the attention of the United Nations General Assembly and the United Nations Security Council;

“Taking into account the Agreement Concerning the Relationship between the United Nations and the Organisation for the Prohibition of Chemical Weapons of 17 October 2000;

“Strongly urging all remaining States not Party to the Convention to ratify or accede to it as a matter of urgency and without preconditions, in the interests of enhancing their own national security, as well as contributing to global peace and security; and

“Recalling that, pursuant to paragraph 8 of Article IV and paragraph 10 of Article V of the Convention, a State acceding to the Convention after 2007 shall destroy its chemical weapons and its chemical weapons production facilities as soon as possible, and the Council shall determine the “order of destruction and procedures for stringent verification” of such destruction;


“1. Decides that the Syrian Arab Republic shall:

(a) not later than 7 days after the adoption of this decision, submit to the Secretariat further information, to supplement that provided on 19 September 2013, on the chemical weapons as defined in paragraph1 of Article II of the Convention that the Syrian Arab Republic owns or possesses, or has under its jurisdiction or control, in particular:

(i) the chemical name and military designator of each chemical in its chemical weapons stockpile, including precursors and toxins, and quantities thereof;

(ii) the specific type of munitions, sub-munitions and devices in its chemical weapons stockpile, including specific quantities of each type that are filled and unfilled; and

(iii)the location of all of its chemical weapons, chemical weapons storage facilities, chemical weapons production facilities, including mixing and filling facilities and chemical weapons research and development facilities, providing specific geographic coordinates;

(b) not later than 30 days after the adoption of this decision, submit to the Secretariat the declaration required by Article III of the Convention;

(c) complete the elimination of all chemical weapons material and equipment in the first half of 2014, subject to the detailed requirements, including intermediate destruction milestones, to be decided by the Council not later than 15 November 2013;

(d) complete as soon as possible and in any case not later than 1 November 2013, the destruction of chemical weapons production and mixing/filling equipment;

(e) cooperate fully with all aspects of the implementation of this decision, including by providing the OPCW personnel with the immediate and unfettered right to inspect any and all sites in the Syrian Arab Republic;

(f) designate an official as the main point of contact for the Secretariat and provide him or her with the authority necessary to ensure that this decision is fully implemented.

“2. Decides further that the Secretariat shall:

(a) make available to all States Parties, within five days of its receipt, any information or declaration referred to in this decision, which shall be handled in accordance with the Annex to the Convention on the Protection of Confidential Information;

(b) as soon as possible and in any case not later than 1 October 2013, initiate inspections in the Syrian Arab Republic pursuant to this decision;

(c) inspect not later than 30 days after the adoption of this decision, all facilities contained in the list referred to in paragraph 1 (a) above;

(d) inspect as soon as possible any other site identified by a State Party as having been involved in the Syrian chemical weapons programme, unless deemed unwarranted by the Director-General, or the matter resolved through the process of consultations and cooperation;

(e) be authorized to hire, on a short-term basis, qualified inspectors and other technical experts and to rehire, on a short-term basis, inspectors, other technical experts and such other personnel as may be required whose term of service has recently expired, in order to ensure efficient and effective implementation of this decision in accordance with paragraph 44 of Article VIII of the Convention; and

(f) report to the Council on a monthly basis on implementation of this decision including progress achieved by the Syrian Arab Republic in meeting the requirements of this decision and the Convention, activities carried out by the Secretariat with respect to the Syrian Arab Republic and its needs for any supplementary resources, particularly technical and personnel resources.

“3. Decides further:

(a) to consider, on an urgent basis, the funding mechanisms for activities carried out by the Secretariat with respect to the Syrian Arab Republic, and to call upon all States Parties in a position to do so to provide voluntary contributions for activities carried out in the implementation of this decision;

(b) to meet within 24 hours if the Director-General reports delay by the Syrian Arab Republic in meeting the requirements of this decision or the Convention, including, inter alia, the cases referred to in paragraph 7 of Part II of the Annex to the Convention on Implementation and Verification, or a lack of cooperation in the Syrian Arab Republic or another problem that has arisen with regard to the implementation of this decision and at that meeting to consider whether to bring the matter, including relevant information and conclusions, to the attention of the United Nations Security Council in accordance with paragraph 36 of Article VIII of the Convention;

(c) to remain seized of the matter; and

(d) to recognize that this decision is made due to the extraordinary character of the situation posed by Syrian chemical weapons and does not create any precedent for the future.

Annex II

Action Group for Syria Final Communiqué

30 June 2012

“1. On 30 June 2012, the Secretaries-General of the United Nations and the League of Arab States, the Ministers for Foreign Affairs of China, France, the Russian Federation, the United Kingdom of Great Britain and Northern Ireland, the United States of America, Turkey, Iraq (Chair of the Summit of the League of Arab States), Kuwait (Chair of the Council of Foreign Ministers of the League of Arab States) and Qatar (Chair of the Arab Follow-up Committee on Syria of the League of Arab States) and the High Representative of the European Union for Foreign Affairs and Security Policy met at the United Nations Office at Geneva as the Action Group for Syria, chaired by the Joint Special Envoy of the United Nations and the League of Arab States to Syria.

“2. The members of the Action Group came together out of grave alarm at the situation in the Syrian Arab Republic. They strongly condemn the continued and escalating killing, destruction and human rights abuses. They are deeply concerned at the failure to protect civilians, the intensification of the violence, the potential for even deeper conflict in the country and the regional dimensions of the problem. The unacceptable nature and magnitude of the crisis demands a common position and joint international action.

“3. The members of the Action Group are committed to the sovereignty, independence, national unity and territorial integrity of the Syrian Arab Republic. They are determined to work urgently and intensively to bring about an end to the violence and human rights abuses, and to facilitate the launch of a Syrian-led political process leading to a transition that meets the legitimate aspirations of the Syrian people and enables them independently and democratically to determine their own future.

“4. In order to secure these common objectives, the members of the Action Group (a) identified steps and measures by the parties to secure the full implementation of the six-point plan and Security Council resolutions 2042 (2012) and 2043 (2012), including an immediate cessation of violence in all its forms; (b) agreed on principles and guidelines for a political transition that meets the legitimate aspirations of the Syrian people; and (c) agreed on actions that they would take to implement the objectives in support of the Joint Special Envoy’s efforts to facilitate a Syrian-led political process. They are convinced that this can encourage and support progress on the ground and will help to facilitate and support a Syrian-led transition.

Identified steps and measures by the parties to secure the full implementation of the six-point plan and Security Council resolutions 2042 (2012) and 2043 (2012), including an immediate cessation of violence in all its forms

“5. The parties must fully implement the six-point plan and Security Council resolutions 2042 (2012) and 2043 (2012). To that end:

(a) All parties must recommit to a sustained cessation of armed violence in all its forms and to the implementation of the six-point plan immediately and without waiting for the actions of others. The Government and armed opposition groups must cooperate with the United Nations Supervision Mission in the Syrian Arab Republic (UNSMIS), with a view to furthering the implementation of the plan in accordance with the Mission’s mandate;

(b) A cessation of armed violence must be sustained, with immediate, credible and visible actions by the Government of the Syrian Arab Republic to implement the other items of the six-point plan, including:

(i) Intensification of the pace and scale of release of arbitrarily detained persons, including especially vulnerable categories of persons, and persons involved in peaceful political activities; the provision, without delay and through appropriate channels, of a list of all places in which such persons are being detained; the immediate organization of access to such locations; and the provision, through appropriate channels, of prompt responses to all written requests for information, access or release regarding such persons;

(ii) Ensuring freedom of movement throughout the country for journalists and a non-discriminatory visa policy for them;

(iii)Respecting freedom of association and the right to demonstrate peacefully, as legally guaranteed;

(c) In all circumstances, all parties must show full respect for the safety and security of UNSMIS and fully cooperate with and facilitate the Mission in all respects;

(d) In all circumstances, the Government must allow immediate and full humanitarian access by humanitarian organizations to all areas affected by the fighting. The Government and all parties must enable the evacuation of the wounded, and all civilians who wish to leave must be enabled to do so. All parties must fully adhere to their obligations under international law, including in relation to the protection of civilians.

Agreed principles and guidelines for a Syrian-led transition

“6. The members of the Action Group agreed on the principles and guidelines for a Syrian-led transition set out below.

“7. Any political settlement must deliver to the people of the Syrian Arab Republic a transition that:

(a) Offers a perspective for the future that can be shared by all in the Syrian Arab Republic;

(b) Establishes clear steps according to a firm timetable towards the realization of that perspective;

(c) Can be implemented in a climate of safety for all and of stability and calm;

(d) Is reached rapidly without further bloodshed and violence and is credible.

“8. Perspective for the future. The aspirations of the people of the Syrian Arab Republic have been clearly expressed by the wide range of Syrians consulted. There is an overwhelming wish for a State that:

(a) Is genuinely democratic and pluralistic, giving space to established and newly emerging political actors to compete fairly and equally in elections. This also means that the commitment to multiparty democracy must be a lasting one, going beyond an initial round of elections;

(b) Complies with international standards on human rights, the independence of the judiciary, accountability of those in Government and the rule of law. It is not enough just to enunciate such a commitment. There must be mechanisms available to the people to ensure that these commitments are kept by those in authority;

(c) Offers equal opportunities and chances for all. There is no room for sectarianism or discrimination on ethnic, religious, linguistic or any other grounds. Numerically smaller communities must be assured that their rights will be respected.

“9. Clear steps in the transition. The conflict in the Syrian Arab Republic will end only when all sides are assured that there is a peaceful way towards a common future for all in the country. It is therefore essential that any settlement provide for clear and irreversible steps in the transition according to a fixed time frame. The key steps in any transition include:

(a) The establishment of a transitional governing body that can establish a neutral environment in which the transition can take place, with the transitional governing body exercising full executive powers. It could include members of the present Government and the opposition and other groups and shall be formed on the basis of mutual consent;

(b) It is for the Syrian people to determine the future of the country. All groups and segments of society in the Syrian Arab Republic must be enabled to participate in a national dialogue process. That process must be not only inclusive but also meaningful. In other words, its key outcomes must be implemented;

(c) On that basis, there can be a review of the constitutional order and the legal system. The result of constitutional drafting would be subject to popular approval;

(d) Upon establishment of the new constitutional order, it will be necessary to prepare for and conduct free and fair multiparty elections for the new institutions and offices that have been established;

(e) Women must be fully represented in all aspects of the transition.

“10. Safety, stability and calm. Any transition involves change. However, it is essential to ensure that the transition can be implemented in a way that ensures the safety of all in an atmosphere of stability and calm. This requires:

(a) Consolidation of full calm and stability. All parties must cooperate with the transitional governing body to ensure the permanent cessation of violence. This includes completion of withdrawals and addressing the issue of the disarmament, demobilization and reintegration of armed groups;

(b) Effective steps to ensure that vulnerable groups are protected and that immediate action is taken to address humanitarian issues in areas of need. It is also necessary to ensure that the release of the detained is completed rapidly;

(c) Continuity of governmental institutions and qualified staff. Public services must be preserved or restored. This includes the military forces and security services. However, all governmental institutions, including the intelligence services, have to perform according to human rights and professional standards and operate under a leadership that inspires public confidence, under the control of the transitional governing body;

(d) Commitment to accountability and national reconciliation. Accountability for acts committed during the present conflict must be addressed. There also needs to be a comprehensive package for transitional justice, including compensation or rehabilitation for victims of the present conflict, steps towards national reconciliation and forgiveness.

“11. Rapid steps to come to a credible political agreement. It is for the people of the Syrian Arab Republic to come to a political agreement, but time is running out. It is clear that:

(a) The sovereignty, independence, unity and territorial integrity of the Syrian Arab Republic must be respected;

(b) The conflict must be resolved through peaceful dialogue and negotiation alone. Conditions conducive to a political settlement must now be put in place;

(c) There must be an end to the bloodshed. All parties must recommit themselves credibly to the six-point plan. This must include a cessation of armed violence in all its forms and immediate, credible and visible actions to implement points 2 to 6 of the six-point plan;

(d) All parties must now engage genuinely with the Joint Special Envoy. The parties must be prepared to put forward effective interlocutors to work expeditiously towards a Syrian-led settlement that meets the legitimate aspirations of the people. The process must be fully inclusive in order to ensure that the views of all segments of Syrian society are heard in shaping the political settlement for the transition;

(e) The organized international community, including the members of the Action Group, stands ready to offer significant support for the implementation of an agreement reached by the parties. This may include an international assistance presence under a United Nations mandate if requested. Significant funds will be available to support reconstruction and rehabilitation.

Agreed actions

“12. Agreed actions that the members of the Group will take to implement the above in support of the Joint Special Envoy’s efforts to facilitate a Syrian-led political process are as follows:

(a) Action Group members will engage as appropriate, and apply joint and sustained pressure on, the parties in the Syrian Arab Republic to take the steps and measures outlined in paragraph 5 above;

(b) Action Group members are opposed to any further militarization of the conflict;

(c) Action Group members emphasize to the Government of the Syrian Arab Republic the importance of the appointment of an effective empowered interlocutor, when requested by the Joint Special Envoy to do so, to work on the basis of the six point plan and the present communiqué;

(d) Action Group members urge the opposition to increase cohesion and to be in a position to ensure effective representative interlocutors to work on the basis of the six-point plan and the present communiqué;

(e) Action Group members will give full support to the Joint Special Envoy and his team as they immediately engage the Government and the opposition, and will consult widely with Syrian society, as well as other international actors, to further develop the way forward;

(f) Action Group members would welcome the further convening by the Joint Special Envoy of a meeting of the Action Group, should he deem it necessary to review the concrete progress taken on all points agreed in the present communiqué and to determine what further and additional steps and actions are needed from the Action Group to address the crisis. The Joint Special Envoy will also keep the United Nations and the League of Arab States informed.”


FRAMEWORK FOR ELIMINATION OF SYRIAN CHEMICAL WEAPONS (United States and the Russian Federation – September 14,2013)


Taking into account the decision of the Syrian Arab Republic to accede to the Chemical Weapons Convention and the commitment of the Syrian authorities to provisionally apply the Convention prior to its entry into force, the United States and the Russian Federation express their joint determination to ensure the destruction of the Syrian chemical weapons program (CW) in the soonest and safest manner.

For this purpose, the United States and the Russian Federation have committed to prepare and submit in the next few days to the Executive Council of the OPCW a draft decision setting down special procedures for expeditious destruction of the Syrian chemical weapons program and stringent verification thereof. The principles on which this decision should be based, in the view of both sides, are set forth in Annex A. The United States and the Russian Federation believe that these extraordinary procedures are necessitated by the prior use of these weapons in Syria and the volatility of the Syrian civil war.

The United States and the Russian Federation commit to work together towards prompt adoption of a UN Security Council resolution that reinforces the decision of the OPCW Executive Council. This resolution will also contain steps to ensure its verification and effective implementation and will request that the UN Secretary-General, in consultation with the OPCW, submit recommendations to the UN Security Council on an expedited basis regarding the UN’s role in eliminating the Syrian chemical weapons program.

The United States and the Russian Federation concur that this UN Security Council resolution should provide for review on a regular basis the implementation in Syria of the decision of the Executive Council of the OPCW, and in the event of non-compliance, including unauthorized transfer, or any use of chemical weapons by anyone in Syria, the UN Security Council should impose measures under Chapter VII of the UN Charter.

The proposed joint US-Russian OPCW draft decision supports the application of Article VIII of the Chemical Weapons Convention, which provides for the referral of any cases of non­compliance to the United Nations General Assembly and the United Nations Security Council.

In furtherance of the objective to eliminate the Syrian chemical weapons program, the United States and the Russian Federation have reached a shared assessment of the amount and type of chemical weapons involved, and are committed to the immediate international control over chemical weapons and their components in Syria. The United States and the Russian Federation expect Syria to submit, within a week, a comprehensive listing, including names, types, and quantities of its chemical weapons agents, types of munitions, and location and form of storage, production, and research and development facilities.

We further determined that the most effective control of these weapons may be achieved by removal of the largest amounts of weapons feasible, under OPCW supervision, and their destruction outside of Syria, if possible. We set ambitious goals for the removal and destruction of all categories of CW related materials and equipment with the objective of completing such removal and destruction in the first half of 2014. In addition to chemical weapons, stocks of chemical weapons agents, their precursors, specialized CW equipment, and CW munitions themselves, the elimination process must include the facilities for the development and production of these weapons. The views of both sides in this regard are set forth in Annex B.

The United States and the Russian Federation have further decided that to achieve accountability for their chemical weapons, the Syrians must provide the OPCW, the UN, and other supporting personnel with the immediate and unfettered right to inspect any and all sites in Syria. The extraordinary procedures to be proposed by the United States and the Russian Federation for adoption by the OPCW Executive Council and reinforced by a UN Security Council resolution, as described above, should include a mechanism to ensure this right.

Under this framework, personnel under both the OPCW and UN mandate should be dispatched as rapidly as possible to support control, removal, and destruction of Syria’s chemical weapons capabilities.

The United States and the Russian Federation believe that the work of the OPCW and the UN will benefit from participation of the experts of the P5 countries.

The United States and the Russian Federation strongly reiterate their position on Syria as reflected in the Final Communique of the G-8 Summit in Northern Ireland in June 2013, especially as regards chemical weapons.

The two sides intend to work closely together, and with the OPCW, the UN, all Syrian parties, and with other interested member states with relevant capabilities to arrange for the security of the monitoring and destruction mission, recognizing the primary responsibility of the Syrian Government in this regard.

The United States and the Russian Federation note that there are details in furtherance of the execution of this framework that need to be addressed on an expedited basis in the coming days and commit to complete these details, as soon as practicable, understanding that time is of the essence given the crisis in Syria.

Annex A
Principles for Decision Document by OPCW Executive Council
  1. The decision should be based on para 8. Art. IV and para. 10 of Art V of the CWC.
  2. The decision should address the extraordinary character of the situation with the Syrian chemical weapons.
  3. The decision should take into account the deposit by Syria of the instrument of accession to the CWC.
  4. The decision should provide for the easy accessibility for States Parties of the information submitted by Syria.
  5. The decision should specify which initial information Syria shall submit to the OPCW Technical Secretariat in accordance with a tightly fixed schedule and also specifies an early date for submission of the formal CWC declaration.
  6. The decision should oblige Syria to cooperate fully on all aspects of its implementation.
  7. The decision should address a schedule for the rapid destruction of Syrian chemical weapons capabilities. This schedule should take into account the following target dates:
    1. Completion of initial OPCW on-site inspections of declared sites by November.
    2. Destruction of production and mixing/filling equipment by November.
    3. Complete elimination of all chemical weapons material and equipment in the first half of 2014. The shortest possible final deadline, as well as intermediate deadlines, for the destruction of Syrian chemical weapons capabilities should be included into the schedule.
  8. The decision should provide stringent special verification measures, beginning within a few days, including a mechanism to ensure the immediate and unfettered right to inspect any and all sites.
  9. The decision should address the issue of duties of the OPCW Technical Secretariat in this situation and its need for supplementary resources to implement the decision, particularly technical and personnel resources, and call upon states with relevant capacities to contribute to this end.
  10. The decision should refer to the provisions of the CWC obliging the Executive Council, in cases of non-compliance with the Convention, to bring the issues directly to the attention of the UN General Assembly and the UN Security Council.


Annex B
Joint Framework on Destruction of Syrian CW

The Russian Federation and the United States of America agree on the need to achieve rapid elimination of Syria’s chemical weapons, thus reducing the threat posed to the people of Syria.

They are each prepared to devote high-level attention and resources to support the monitoring and destruction mission of the OPCW, both directly and in cooperation with the United Nations and other States concerned. They agree to set an ambitious goal of eliminating the threat in a rapid and effective manner.

Both parties agree that a clear picture of the state of Syrian chemical weapons could help advance a cooperative development of destruction options, including possible removal of chemical weapons outside of the Syrian territory. We agree on the importance of rapid destruction of the following categories:

  1. Production equipment
  2. Mixing and filling equipment
  3. Filled and unfilled weapons and delivery systems
  4. Chemical agents (unweaponized) and precursor chemicals. For these materials, they will pursue a hybrid approach, i.e., a combination of removal from Syria and destruction within Syria, depending upon site-specific conditions. They will also consider the possibility of consolidation and destruction in the coastal area of Syria.
  5. Material and equipment related to the research and development of chemical weapons

The two parties agree to utilize the “universal matrix”, developed in the course of consultations by our two National Security Councils, as the basis for an actionable plan.

They agree that the elimination of chemical weapons in Syria should be considered an urgent matter to be implemented within the shortest possible time period.

The parties agree to set the following target dates:

  1. Completion of initial OPCW on-site inspections by November.
  2. Destruction of production and mixing/filling equipment by November.
  3. Complete elimination of all chemical weapons material and equipment in the first half of 2014.

The Russian Federation and the United States will work together closely, including with the OPCW, the UN and Syrian parties to arrange for the security of the monitoring and destruction mission, noting the primary responsibility of the Syrian government in this regard.

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