On October 24

On this day in ...
... 1970, the U.N. General Assembly adopted Resolution 2625 (XXV), entitled the "Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations." Paragraph 1 began:

'The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the United Nations.'

The declaration then proceeded to detail means by which states ought to respect the prohibition on threat or use of force, set forth tersely in Article 2(4) of the U.N. Charter.

(Prior October 24 posts are here, here, here, here, and here.)

On September 8

On this day in ...

... 1951, delegates from 4 dozen countries signed the Treaty of Peace with Japan, also known as the San Francisco Peace Treaty in recognition of the city where it was signed. (credit for photo of Japanese Prime Minister Shigeru Yoshida signing at the War Memorial Opera House, as members of his delegation look on) The treaty began with Japan's promise "to apply for membership in the United Nations and in all circumstances to conform to the principles of the Charter of the United Nations," signed in the same city 6 years earlier, and further "to strive to realize the objectives of the Universal Declaration of Human Rights" that states then members of the U.N. General Assembly approved in 1948. The treaty brought to a formal end the Pacific Rim aspect of World War II. It marked too the start of a new, cooperative relationship between, in particular, Japan and the United States.

(Prior September 8 posts are here, here, here, here, and here.)

On August 16

On this day in ...
... 1948, in Washington, D.C., testimony continued before a Special Subcommittee of the House Committee on Un-American Activities, part of "Hearings Regarding Communist Espionage in the United States Government" that had begun on August 3 and would last through the month. Particularly targeted in the hearings was Alger Hiss, whom a former member of the Communist Party in the United States had accused of spying for the Soviet Union. Hiss, a Harvard Law graduate, had been a law clerk to Justice Felix Frankfurter and then served as Director of the Office of Special Political Affairs at the U.S. Department of State – a position that gave him leading roles in the Yalta conference during World War II and in the Dumbarton Oaks and San Francisco conferences at which the U.N. Charter was adopted. On this day, in execution session, Hiss was examined by Richard M. Nixon, then a member of Congress and of the Special Subcommittee. Hiss denied knowing his accuser, before, during, and after this testimony. (credit for undated photo of Hiss at hearings) He would be convicted of perjury in subsequent criminal proceedings, and would serve a number of years in federal prison.

(Prior August 16 posts are here, here, here, here, and here.)

Executive action at the United Nations, a basis for the concept of responsibility to protect

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post, part of a 2-part series based on a paper that will appear in the 2012 American Society of International Law Annual Meeting Proceedings)

According to UN Secretary-General Ban Ki-moon (right), while the responsibility to protect concept came of age in 2011, the challenge facing the international community remains that of transforming the concept from ‘promise to practice’ or from ‘words into deeds’. In my view, the significance of the concept lies in its capacity to do the reverse – that is, to transform practice into promise, or deeds into words.
More specifically, the responsibility to protect concept offers a framework for rationalising and consolidating practices of international executive rule, many of which were developed by Dag Hammarskjöld (below left), the second Secretary-General of the United Nations, in the early years of decolonisation. (UN photo credits here and here)

Practices of protection: Executive action & the UN Charter

The idea that the UN has a responsibility to protect life in the decolonised world began to take shape with two operations that were undertaken while Hammarskjöld was in office:
► UNEF, the UN Emergency Force in response to the Suez crisis of 1956; and
► ONUC, the UN Operation in the Congo in 1960.
The techniques of executive rule developed under Hammarskjöld’s auspices during those early crises of decolonisation – fact-finding, peacekeeping, strategic forms of technical assistance, and civilian administration – have, of course, since expanded dramatically. Yet as Hammarskjöld recognised, little in the UN Charter suggests its authors envisaged the creation of an international executive that could undertake such wide-ranging forms of action.
In the Introduction to his 1961 Annual Report to the General Assembly (accessible here), Hammarskjöld noted that although ‘great attention is given’ in the UN Charter to elaborating ‘the parliamentary aspects of the Organization, little is said about executive arrangements’. To the extent that there exists an explicit legal basis for these forms of executive action, Hammarskjöld found it in the provisions of the Charter entrusting the Secretary-General with the execution of political decisions at the request of the political organs, and in Article 99, which provides that the Secretary-General

'may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.'

Hammarskjöld (prior IntLawGrrls posts) interpreted these provisions as giving the Secretary-General a position of full political independence and a broad discretionary mandate to engage in fact-finding, preventive diplomacy, and other behind-the-scenes activity necessary to carry out his functions. He thus did not interpret the limited attention in the Charter as a constraint on executive action. Rather, he considered that ‘the executive functions and their form have been left largely to practice’. He argued forcefully that it was necessary to stop thinking of the UN merely as a forum for ‘static conference diplomacy’ and instead reimagine it as a ‘dynamic instrument’ for ‘executive action, undertaken on behalf of all members’. And he emphasised the ‘margin of confidence’ that ‘must be left to those who will carry the responsibility for putting the decisions’ of the political organs ‘into effect’.
International lawyers in the 1950s and ’60s were well aware of the potentially radical effect of this expansion of international executive action. For example, Stephen Schwebel presciently commented in his 1961 book The Origins and Development of Article 99 (p. 382):

Debating border-crossing in noninternational conflict

Under international law:
► Could the United States have killed alleged dirty bomber José Padilla at O'Hare Airport?
► Could Uganda enter, say, Mozambique in pursuit of Joseph Kony?
►  Are cross-border drone strikes legal?
These were the kind of provocative questions bruited about at Geography of War in Armed Conflict, a fascinating workshop in which yours truly took part last week at the the U.S. Naval War College International Law Department, Newport, Rhode Island.
Kudos for assembling a fiery, multinational group of participants with an array of perspectives –  think dinner party in a Woody Allen film – are due to organizers, particularly Professor Michael N. Schmitt, a retired Air Force officer, and Instructor Matt Hover, an Army major. Schmitt, formerly Chair of the Public International Law Department at Durham University in England and Dean of the George C. Marshall European Center for Security Studies in Germany, has chaired the College's International Law Department since October.
Noteworthy given the subject matter were the many women among the 20 or so participants. As detailed in the program, 4 women were among those enlisted to set the stage for discussion:
► Jelena Pejic (right), Geneva-based Legal Adviser at the International Committee of the Red Cross, the century-and-a-half-year-old nongovernmental organization that promotes and monitors compliance with international humanitarian law. (photo credit)
► Gabriella Blum, Rita E. Hauser Professor of Human Rights and Humanitarian Law at Harvard. Gabby's depicted at foreground in the top photo; behind her is Sasha E. Radin, a Visiting Research Scholar at the War College (photo credit)
► Jennifer Daskal (left), Fellow at the Center on National Security and the Law, Georgetown University Law Center. (photo credit) Jen, whom I'd met back in 2008, when the 2 of us observed GTMO military commissions for different NGOs, is the author of an article right on point with this workshop: "The Geography of the Battlefield: A Framework for Detention and Targeting Outside the 'Hot' Conflict Zone," forthcoming in the University of Pennsylvania Law Review. In it, Jen accepts arguendo current U.S. practice with regard to targeting (which IntLawGrrls have discussed in posts available here, here, and here), and proceeds to propose guidelines for regulating that practice.
► Ashley Deeks (right), who is completing a stint as an Academic Fellow at Columbia Law School and soon will take up an appointment as Associate Professor at the University of Virgina School of Law. (photo credit) Ashley's article "'Unwilling or Unable': Toward an Normative Framework for Extra-Territorial Self-Defense," just published in the Virginia Journal of International Law, discusses a theory by which some countries, like the United States, have endeavored to justify entering the territory of a state – a state with which the country is not at war – in pursuit of a person or group with which the country is at war.
In an armed conflict "between two or more of the High Contracting Parties," to quote Article 2 common to the Geneva Conventions, such pursuit is permitted. But what about, to quote Article 3 common, "an armed conflict not of an international character"? What if a country is warring against a nonstate actor, on the territory of a not-at-war state?
Whether, and by what legal reasoning, that country can get across that nonconsenting state's border were the central questions of the workshop.
Possible answers implicate a host of legal subfields. For example:

The United Nations & the responsibility to protect

(My thanks to IntLawGrrls for the opportunity to contribute this post, consisting of remarks I delivered last Thursday at "Military Intervention and the Law of Peace," the opening plenary session of the 2012 annual meeting of the American Society of International Law)


Introduction
Ladies and Gentlemen, it is a great pleasure to be here with you. Today’s panel raises very topical issues. As we are limited by time, I will focus my comments on the concept of the “Responsibility to Protect” (R2P) in the context of current work at the United Nations, and its implementation in the situations in Libya and Syria.

2005 World Summit
In 2005, more than 150 Heads of State and Government unanimously embraced the “Responsibility to Protect” (R2P). They declared that

'each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity,'

and that

'the international community, through the United Nations, also has the responsibility … to help protect populations'

from those crimes.

The three pillars of R2P
In addressing the challenge of “operationalizing” R2P, the Secretary-General has identified three pillars of action:
► Pillar I is the enduring responsibility of States to protect their populations.
► Pillar II is the role of the international community to assist States to protect their populations before crises and conflicts escalate to the level of the commission of R2P crimes.
► And Pillar III involves a commitment that States

'are prepared to take collective action in a timely and decisive manner, through the Security Council, in accordance with the Charter … where national authorities are manifestly failing to protect their populations.'

(Credit for above right U.N. photo by Mark Garten of U.N. Secretary-General Ban Ki-moon, courtesy of the United Nations)
The commitment also includes action under Chapters VI and VIII, as well as under Chapter VII, and includes cooperation with relevant regional organisations, as appropriate. And of course, the concept is necessarily limited by the legal framework provided under the Charter. Any decision of the Security Council to take action would require the concurring votes of each permanent member. This underscores that R2P does not create any additional exceptions to the prohibition on the use of force under the Charter, – the exceptions being acts in self-defence, and acts authorized by the Security Council.
Most States have agreed that the UN’s role should focus, at the outset, on prevention. The challenge for giving true practical meaning to the concept is thus to work out how the UN can best assist States to protect their populations before crisis situations occur, particularly as there will be situations in which the Security Council will not authorize enforcement action under Chapter VII. This challenge has yet to be met, and of course differs with each unique situation.

R2P gives expression to important international developments
R2P gives expression to what had become a global-wide conviction that it is immoral and unacceptable for States to allow gross violations of the human rights of their populations, and that the international community has a responsibility to prevent these crimes. In this light, R2P has grown out of a number of important developments:
► It reflects a recognition of the changing nature of conflict since the drafting of the Charter in 1945 – today most conflicts occur within States rather than between them.
► It signifies a broad acceptance of fundamental principles of human rights, and reinforces the normative content of the crimes of genocide, war crimes, [ethnic cleansing], and crimes against humanity.
► And it affirms States’ obligations under international law to prevent, prosecute and punish these crimes.
At the heart of R2P is the recognition that state sovereignty – the cornerstone of international relations – entails responsibility. States have a responsibility to protect their populations from the R2P crimes. Building upon this responsibility is the positive obligation which is placed upon the international community to assist States to meet their responsibilities and to take action where these responsibilities are not met. This notion of sovereignty as responsibility underscores that sovereignty is the basis for a certain status and authority under international law, as well as for enduring obligations towards one’s people.
Importantly, rather than detracting from the principle of State sovereignty, R2P reinforces it. It drives home the role of the State as a protector of its nationals. As stated by the Secretary-General, R2P is

'an ally of sovereignty, not an adversary.'

As one of the defining attributes of statehood and sovereignty is the protection of populations; prevention of atrocity crimes begins at home. R2P reinforces the collective security mechanism established by the Charter with its emphasis on prevention, and that enforcement measures may only be taken in accordance with the legal framework prescribed by the Charter.
So some might ask, what is new?

Two years after the earthquake, members of Haitian civil society want human rights respected

(Our thanks to IntLawGrrls for the opportunity to contribute this introductory post)

On the two-year anniversary of the devastating January 12, 2010, earthquake in Haiti, conditions in the remaining 800 earthquake displacement camps are deteriorating.
The country faces the worst cholera epidemic in the world, as Amy Senier's post above details. Women and girls living in camps fear for their safety as they search for food, water and latrines in the day and as they fall asleep at night.
For two years now, Haitians have been urging their government and the international community to view earthquake survivors as rights holders, not charity cases, and to integrate a rights-based approach to recovery. Instead, Haitians at all levels have found themselves left out of the decision-making processes on aid distribution – from top government officials, overwhelmed by the “republic of NGOs” operating in their country, to the communities left homeless by the earthquake and struggling to survive.
A coalition of 57 grassroots groups, internally displaced persons camps, nongovernmental organizations, and academic institutions took their grievances against the Haitian government and the international community to the United Nations Human Rights Council on October 13, 2011, when Haiti was reviewed under the Universal Periodic Review.
Established in 2006, the Universal Periodic Review is a process that all UN member countries undergo every four years, during which the Council reviews each country’s human rights record in light of its obligations under the UN Charter, the Universal Declaration of Human Rights, other human rights instruments, and the country’s own stated commitments. (Prior IntLawGrrls posts.) Haiti’s review was postponed due to the earthquake, and it was the last country to be reviewed in the Universal Periodic Review’s four-year cycle.
In preparation for the October hearing in Geneva, Switzerland, the coalition, with the help of the Institute for Justice & Democracy in Haiti and its Haitian affiliate, the Bureau des Avocats Internationaux, submitted thirteen written reports to the Human Rights Council on issues ranging from violations of the right to housing, violence against women and prison conditions to the responsibility to implement a rights-based approach throughout Haiti’s rebuilding after the earthquake. Collectively, the reports made 147 recommendations to the Government of Haiti and members of the international community active in Haiti on concrete steps they should take to improve human rights over the next four years, when Haiti will be reviewed under the Universal Periodic Review again.
Though influence of the final government recommendations is important, one of the primary goals of the Universal Periodic Review work has been to foster sustained grassroots advocacy.

On December 14

On this day in ...
... 1960, in New York, via Resolution 1514 (XV), the U.N. General Assembly adopted the Declaration on the Granting of Independence to Colonial Countries and Peoples. It affirmed peoples' right to self-determination, and further stated:

The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.

The history of this instrument -- including the choice of a declaration rather than a treaty, and a General Assembly rather than a Security Council resolution, and judicial citations to the declaration -- may be found here.

(Prior December 14 posts are here, here, here, and here.)

On November 30

On this day in ...
... 1973, in New York, the International Convention on the Suppression and Punishment of the Crime of Apartheid was opened for signature. Its 1st article proclaimed

that apartheid is a crime against humanity and that inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination ... are crimes violating the principles of international law, in particular the purposes and principles of the Charter of the United Nations, and constituting a serious threat to international peace and security.

Further "declare[d] criminal" were "those organizations, institutions and individuals committing the crime of apartheid." (credit for image of official emblem for the United Nations' Anti-Apartheid Year, 1978) The convention entered into force on July 18, 1976, and today has 107 states parties. Notable nonparty states include South Africa -- whose policies at the time of adoption were targeted by the treaty -- as well as 3 of the Security Council's 5 permanent members -- France, the United Kingdom, and the United States.

(Prior November 30 posts are here, here, here, and here.)

October's 1st UNSC veto

The month's 1st exercise of the P-5 veto came yesterday.
The naysayer was not the United States, which has said it will veto any resolution proposing U.N. membership for Palestine.
Rather, denying "the concurring votes of the permanent members" on which Article 27(2) of the U.N. Charter conditions resolutions were other members of the P-5; namely, China and Russia.
Thus failed a draft resolution condemning the government of Syria for its continuing bloody crackdown on its own people. (IntLawGrrls' Syria posts here; Opinio Juris on the veto here.)
Reacting harshly was Ambassador Susan E. Rice, U.S. Permanent Representative to the United Nations. Rice delivered the statement depicted below, scathing the Council's collective refusal to pass what she called "even a watered-down resolution," and then "storm[ed] out" of the Council chamber.

(credit for video clip courtesy of the Guardian)

In Siem Reap, tempest over a temple

SIEM REAP – We’ve just arrived in this city, the launching point to visit the spectacular Angkor Wat temple complex.
The big news here is Monday's International Court of Justice order for provisional measures in the Request for interpretation of the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand).
Made pursuant to Article 41 of the ICJ Statute, provisional measures are akin to the issuance of a preliminary injunction in U.S. litigation practice.

The dispute
As Jaya posted in May, the matter arose out of an April 2011 request by Cambodia that the ICJ, pursuant to Article 60 of its statute, interpret its June 1962 judgment in Preah Vihear. In that earlier opinion, the Court had declared that

the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia

notwithstanding that the temple (right), being on an escarpment, is geographically more accessible from Thailand.
The ruling was premised in part on interpretations of French maps, drawn up in 1907 by the Franco-Siamese Mixed Commission, which placed the territory in Cambodia. Thailand had helped generate these maps, and subsequently used them for its own purposes, suggesting an acceptance of their contents. As a result, international lawyers normally cited the ICJ's June 1962 opinion in Preah Vihear for the principle of estoppel, which the court identified as a general principle of law as contemplated by Article 38(1)(c) of its statute.
Yet Thailand now opposes the placement of the temple in Cambodia.
In 2008, UNESCO listed the temple as a World Heritage Site, one of two in Cambodia. In response to this statement that the temple is situated in Cambodia, Thailand withdrew from both the 1972 Convention Concerning The Protection Of The World Cultural And Natural Heritage and the World Heritage Committee.
Additionally, Thailand has launched a number of military incursions into the area since 2008. Clashes between government forces on both sides have resulted in casualties and the destruction of property – including harm to the temple itself.
Clashes intensified this year, fueled – it appears – by assertions of Thai nationalism in the face of domestic political turmoil.
In February 2011, Cambodia brought the conflict to the attention of the U.N. Security Council, which called for a permanent ceasefire to be established between the two parties and expressed its support for the efforts of the Association of Southeast Asian Nations to find a solution.

Arguments before the ICJ
In its recent pleadings before the ICJ Thailand, in an effort to defeat the request for provisional measures, advanced the argument that the original ICJ opinion related only to the temple itself, and not to the entire area surrounding it, where the recent clashes have occurred. Similarly, it argued that the court did not delineate the entire frontier between the countries, which remains contested, in Thailand's estimation.
Cambodia countered that by determining that the temple falls within Cambodian sovereign territory, the ICJ by implication had determined the border between the two countries, at least with regard to the temple vicinity. Thai incursions, it contended, thus are akin to violations of Article 2(4) of the U.N. Charter. On the strength of the original opinion, Cambodia has argued that Thailand remains under a continuing and general duty – rather than a mere instantaneous duty applicable only in 1962 – to withdraw its troops from the area and to respect the integrity of Cambodian territory.

ICJ ruling
In Monday's order in this current Preah Vihear dispute, the ICJ first determined that

• the rights asserted by Cambodia were at least plausible;
• the rights from which the request for provisional measures derive from the earlier judgment;
• a link exists between the alleged rights and the provisional measures sought; and
• irreparable prejudice could be caused to those rights.

Thus the ICJ ordered, inter alia, that

all armed forces should be provisionally excluded from a zone around the area of the Temple, without prejudice to the judgment which the Court will render on the request for interpretation submitted by Cambodia.

The Court then defined this zone with reference to particular coordinates, mapped above left. In addition, the parties were ordered to continue to cooperate with ASEAN and to allow observers to have access to the provisional demilitarized zone.
The newly appointed American judge, Joan E. Donoghue (right) (prior IntLawGrrls posts), voted with 4 other judges against the establishment of the demilitarized zone. Moreover, she was the sole judge to vote against all other aspects of the provisional measures. This passage of Donoghue's dissenting opinion sums up the basis for her deliberations:

Without a doubt, the Court hopes that the measures that it indicates today will defuse a tense situation and thus will protect lives and property. This is a laudable goal, but it cannot overcome a lack of jurisdiction to impose the measures contained in today’s Order. Accordingly, I have voted against those measures.

At the scene
Here in Siem Reap, our guide announced with confidence that now that the ICJ has ruled, it is perfectly safe to visit the temple.
Such faith in international law.
But, do I subject my children, who've accompanied me on this voyage, to potentially risky international law tourism?
Stay tuned...

On April 30

On this day in ...
... 1948, the American Treaty on Pacific Settlement was signed during a meeting of the Organization of American States in Colombia. Also known as the Pact of Bogota on account of the city where it was signed, the treaty reaffirmed the commitment of countries in the Americas -- a commitment made a few years earlier via the U.N. Charter -- to

refrain from the threat or the use of force, or from any other means of coercion for the settlement of their controversies, and to have recourse at all times to pacific procedures.

It contemplated means such as arbitration or resort to the International Court of Justice in order to effect this pledge. Today the treaty has 15 states parties, the United States of America not among them.

(Prior April 30 posts are here, here, here, and here.)

On April 8

On this day in ...
... 1946 (65 years ago today), the League of Nations held its last meeting, 25-1/2 years after its initial session in Geneva, Switzerland. The alliance had foundered with the onset and onslaught of World War II. The United Nations Organization, established by dint of the San Francisco Charter, would assume the intergovernmental security tasks that the League had been designed to discharge.

(Prior April 8 posts are here, here, here, and here.)

You Go, 'Grrl

Our very own Diane Marie Amann (left) will be moving at midsummer to the University of Georgia School of Law, where she will hold the Emily and Ernest Woodruff Chair in International Law.
The chair was created 30 years ago for international law luminary Louis Sohn, who helped to draft the UN Charter, and whose "knowledge of international law and attention to detail were legendary."
Sounds just like an IntLawGrrl we know . . . In any case, a fitting honor for this blog's founding mother and nurturer-in-chief, and, in our humble opinion, a coup for UGA!

On February 20

On this day in ...

... 1976 (35 years ago today), Dr. René Cassin died in Paris, 88 years after his birth in Bayonne, France. Having earned his Ph.D. in law from the University of Aix-en-Provence in 1914, Cassin was wounded as an infantryman during World War I, then began a career in the teaching and promotion of human rights and humanitarian law. Among his many posts: delegate to the League of Nations, chief legal adviser during World War II to de Gaulle's French government in exile, President of the Permanent Court of Arbitration, and President of the European Court of Human Rights. Central to his legacy was his service as the 1st vice chair of the U.N. Commission on Human Rights: along with Chair Eleanor Roosevelt and others, Cassin was instrumental in the drafting and promulgation of the 1948 Universal Declaration of Human Rights, an instrument that he contended "had not just moral, but legal weight" within the system established by the Charter of the United Nations:

It was the development of the Charter which had brought human rights within the scope of positive international law. That being so, it could not be said that the Declaration was a purely theoretical instrument. It was only a potential instrument; but that fact in no way detracted from the binding force of the provisions of the Charter.

(credit for 1947 U.N. photo of Cassin, right, with Roosevelt) Winner of the 1968 Nobel Peace Prize, Cassin is interred in the Panthéon in Paris.

(Prior February 20 posts are here, here, here, and here.)

Need for new nuclear containment tools

(My thanks to IntLawGrrls for the opportunity to contribute a 2-part series of guest posts. Part 2 is below; Part 1, published yesterday, is here)

Just announced are the terms for the next round of talks on Iran's nuclear technology. They are set for next Monday and Tuesday in Geneva, Switzerland, between:
► Catherine Ashton, the European Union's High Representative for Foreign Affairs and Security Policy, formerly an officer of the London-based Campaign for Nuclear Disarmament; and
► Dr. Saeed Jalili, secretary of Iran's Supreme National Security Council and its lead nuclear negotiator.
As demonstrated in my post yesterday, to date these negotations have been marked by lack of trust on all sides. Debate remains, however, to what extent the lack of trust can generate legal implications.
Some argue that without a ‘smoking gun’, there is no ground to act against Iran. They warn of the danger in relying on strategic assessment, which may prove to be misguided, as was the case of Iraq in 2003.
Others emphasise the severity of the risks, on the one hand, and the ability of proliferators to hide the evidence, on the other hand. They agree that comprehensive and logical assessments regarding nuclear proliferation need to include as much hard evidence as possible; nonetheless, they contend that in the interest of non-proliferation, such assessments should not be held hostage to the absence of such evidence. (credit for above logo from Iran's atomic energy site)
No less significant is the question of how to deal with a state once it is identified as a suspected proliferator.
Clearly the regime established by the 1968 Nuclear Non-Proliferation Treaty is ill-equipped to deal with cases such as Iran’s.
The provisions of the treaty are not geared to seeking out and stopping suspected defectors; moreover, these provisions lack precise criteria for dealing with such suspicions when they arise. Drafters devoted little attention to the prospect that a state might develop an interest in becoming a nuclear-weapon state without first withdrawing from the treaty.

(credit for map showing states with nuclear weapons in red, treaty-established Nuclear Free Zone in blue, and nuclear sharing states in orange, and states that are none of the above yet members of the treaty) In a world of new instabilities, where nuclear technology is increasingly accessible, the treaty is failing to achieve containment. The treaty's consensual regime was established during the Cold War, which encouraged adherence to the treaty and to the safeguards regime of the International Atomic Energy Agency. Some argue that this consensual regime is not only increasingly ill-fitted to address nuclear weapons proliferation risk, but actually enhances the incentive to proliferate.
Various initiatives and proposals attempt to escape this impasse.
Some proposals would try to strengthen the existing non-proliferation regime from the inside, both substantively and institutionally.
Other proposals move away from consensual mechanisms aimed at encouraging compliance, and towards effective enforcement. Even initiatives related directly to strengthening compliance with safeguard agreements invest in non-consensual mechanisms for strengthening the existing regime. Examples include:
► Generic Security Council resolutions to address the case of a state that has been found by the Agency to be deliberately in non-compliance with its safeguards undertakings; or
► Declaration that nuclear weapons proliferation constitutes a ‘threat to the peace’, thereby engaging the sanctions regime of U.N. Charter Chapter VII in every case of non-compliance with the Atomic Energy Agency.
None of these proposals, however, addresses what is perhaps the greatest obstacle to success of the Non-Proliferation Treaty regime: its unique formal asymmetry and the legacy of international practice. Whatever the legal extent of the obligation to disarm, undoubtedly the political legitimacy of the regime is being undermined by what is perceived as abuse of status by the 5 treaty-recognized nuclear weapons states, Britain, China, France, Russia, and the United States.
It remains to be seen whether effective legal tools will be adopted in a timely manner to prevent Iran’s nuclear programme from maturing into a nuclear threat, or whether international law will continue to play a merely responsive role to that threat.

On October 19

On this day in ...
... 1945 (65 years ago today), in a classic example of half-empty/half-full, occurred an event reported in very different ways on either side of the northern North America border. According to a site maintained by Toronto's Globe and Mail, Canada's Parliament unanimously ratified the U.N. Charter and accompanying Statute of the International Court of Justice. According to The New York Times, a week of debate in Ottawa "terminated" in the Parliament's "acceptance without a vote." The latter article included coverage that underscored issues still current in the United Nations. Its headline:

CANADA EXPRESSES DOUBT ON CHARTER; Although Accepting UNO, Many Deplore Preponderance of Power Given to Big 3

Why join despite those doubts? In answer, The Times quoted the country's Justice Minister:

'Canada is prepared to take whatever risk may be involved in joining this organization because the other risk -- that of not having an international organization -- is something of such consequence that one dare hardly envisage it.'

(Prior October 19 posts are here, here, and here.)

Question on the ICC aggression filter

We've been blogging extensively on the recent International Criminal Court Review Conference in Kampala and the new crime-of-aggression provisions adopted there. This post will focus on one important jurisdictional component of these provisions, which yet must be ratified by ICC states parties before they become actual amendments to the Rome Statute of the International Criminal Court.
That component is the aggression filter.

Filtering claims
Pursuant to the new provisions, when an investigation is triggered by either a State Party referral or a proprio motu investigation by the Prosecutor pursuant to Articles 13(a) and (c) respectively, the crime of aggression will be subject to two alternative filters, which operate in tandem:

• Pursuant to the new Article 15bis(6), once the Prosecutor has determined there is a "reasonable basis to proceed with an investigation" into potential crimes of aggression (based upon an internal preliminary investigation), the Prosecutor will first determine whether the Security Council (right) has made a determination as to whether the putative Aggressor State has committed an act of aggression. If so, the Prosecutor can pursuant to Article 15bis(7) proceed with a formal investigation and, if warranted, seek an arrest warrant and confirmation of charges. The Security Council’s determination is not binding on the Court, which will determine the existence of an act of aggression anew at trial under the terms of the Statute and the penal burden of proof. The Council’s determination, however, will undoubtedly exert considerable evidentiary pull.
• If the Council has not made the necessary determination within 6 months of receiving notification from the Prosecutor, the Prosecutor can subsequently request permission from the Pre-Trial Division (sitting en banc) to open a formal investigation into potential crimes of aggression pursuant to Article 15bis(8). This process will proceed under the same provision (Article 15) that governs the Prosecutor’s request to launch an investigation proprio motu. At this time, the Prosecutor will present the Pre-Trial Division with any supporting material, including victim testimony.

Investigations triggered by the Security Council pursuant to Article 13(b) are not subject to any filter within the new Article 15ter. Following the activation of any of the three trigger mechanisms, the U.N. Security Council can utilize Article 16 of the Rome Statute to defer the case for a year (renewable) with a Resolution adopted under Chapter VII of the U.N. Charter.
Since these provisions were pulled together under hectic circumstances at Kampala, delegates did not consider how the procedures governing the initiation of proprio motu investigations in Article 15 will need to be adapted to the aggression determination by the Pre-Trial Division.
Most importantly, Article 15 does not give any participatory rights to States. During the preliminary investigation phase, prior to when the Prosecutor goes before the Division, Article 15(2) invites the Prosecutor to seek additional information and written or oral testimony from States, U.N. organs, non-governmental organizations and other reliable sources to determine the “seriousness” of the information received. Once the Prosecutor goes before the Division, however, only victims are entitled to make representations to the Chamber, according to Article 15(3).
Indeed, States have few participatory rights in the ICC Statute, which is perhaps understandable given that with respect to the original crimes, the Court exercises jurisdiction over individuals and not States.
One key area where States do have participatory rights is in connection with asserting the privilege of complementarity. States are entitled to challenge the jurisdiction of the Court pursuant to Articles 18 and 19(2)(b) on the grounds that they are investigating or prosecuting the matter themselves (or have done so). The putative territorial State or nationality State can also contest jurisdiction if the Article 12 preconditions for jurisdiction are not met (requiring either the territorial or nationality State to be a party to the Statute), per Article 19(2)(c).
Because the Article 15 process launches the formal investigation, it normally occurs prior to the identification of particular defendants. As a result, no provision allows an accused to participate in this process. Thus, absent some amendment or procedural rule to govern the aggression context, neither States nor defendants are entitled to raise arguments on behalf of the supposed aggressor State at the time that the Pre-Trial Division is to make the aggression determination.

Burdens of proof
In terms of the applicable burden of proof under Article 15, the Prosecutor must demonstrate a “reasonable basis to proceed” with a proprio motu investigation according to Rome Statute Article 15(4). At the moment, this burden of proof appears to apply at the time of the Pre-Trial Division’s aggression determination. States did not contemplate altering this burden, although they might have. Under the newly adoption provisions, the aggression determination will be subject to two additional pre-trial tests:

• at the time an arrest warrant is sought (when it must be shown that there are reasonable grounds to believe the person committed the crime per Article 58) and
• when the charges are confirmed (when it must be shown that each charge is supported with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged per Article 61(5)).

At trial, the Trial Chamber will be obliged to definitively determine whether the putative aggressor State committed the predicate act of aggression pursuant to the beyond reasonable doubt standard of Article 66 of the Rome Statute. This is because the act of aggression is an element of the crime of aggression. At this time, pursuant to Article 73, presumably, representatives of the State will be invited to provide evidence — although as the proposed provisions stand they are not entitled to do so.
Of course, a defendant charged with aggression will likely raise arguments and present evidence refuting the existence of an act of aggression at trial. This may not occur, however, where there are substantial conflicts of interest between the defendant and the aggressor State, or where the defendant chooses to emphasize other defenses.
It seems that the preliminary decision on the existence of an act of aggression will be subject to an interlocutory appeal under Article 82 of the Rome Statute — either as a decision on jurisdiction (Article 82(1)(a)) or as a

decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings (Article 82(1)(d)).

The preliminary aggression determination can also be appealed post-verdict (Article 81).
States, however, are not given any rights to appeal, except by Rome Statute Article 57(d)(3) with respect to decisions by the Pre-Trial Chamber to allow for in situ investigations in non-cooperating States.
So, the aggression determination may never be subject to appeal if a convicted accused chooses to appeal other aspects of the Prosecutor's case against him or her.

Question of State participation
Read together, the provisions governing the aggression filter provide no meaningful opportunity for the impugned State to be heard. This raises questions of fundamental fairness.
It could be argued that there are no direct or binding implications to an ICC determination that a State has committed an act of aggression. The ruling, for example, will carry no res judicata effect in any subsequent inter-state adjudication.
This argument, however, belies the expressive force of a judicial determination. Such a decision inevitably will carry great moral weight in dealings and negotiations between the relevant parties and the international community. It will, moreover, have evidentiary significance in any subsequent inter-state dispute. Finally, a declaration of rights standing alone may be a remedy, as recognized in Principle 22(d) of the U.N. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005). Such a declaration is often conceived of as a remedy in international adjudications.
As such, as the IICC Assembly of States Parties considers how to integrate the new aggression provisions into the ICC Statute, it would do well to focus on this question:

Given that a finding of State aggression is central to adjudicating the crime of aggression, in cases involving aggression charges, when and how may implicated States exercise a meaningful opportunity to be heard?

Haiti's Lesson to the World: Opportunity in Disaster

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Today, Canada will host an emergency meeting in Montreal to draw a longer-term rebuilding plan for Haiti. On the table will certainly be a governance formula to assist Haitians on their road out of the current catastrophe and towards a viable stable and prosperous democracy. Haitian governance history has been fraught with disappointments since its independence in 1804, and more recently since the early 1990s. (credit for photo at left of Haiti's national palace post-earthquake).
A sustainable government is requisite as a care taker of not only ordinary and daily affairs for its citizens, but in Haiti’s case – an island geographically prone to nature’s onslaughts – also as a manager capable to face similar frequent challenges. At this backdrop, one wonders whether the current disaster and crisis, and the Monday international meeting, offer an opportunity to dust off the idea of international trusteeship and reconsider at least its partial revival in a fashion adapted to 21st century’s reality.
A long forgotten tool, the Trusteeship Council figures as one of the UN six main permanent organs. True, the historical circumstances prevailing at the time of the Charter’s adoption, namely post World War II decolonization, mostly no longer apply. Nevertheless, elements of the chief rationale underlying the two UN international trusteeship chapters XII and XII are as valid today as they were then. Equally true is that the trusteeship concept leaves a bad taste associated with past colonial misfortunes and coupled with fear of lurking neo-colonialism. To counter these concerns however, one should refer to the rich "acquis international", the extant body of international law accumulating since decolonization and designed to reassure newly independent states and peoples of their sovereignty, human rights, equality among the family of nations, to mention a few among the legal safeguards adopted since 1945. In this context, an international trusteeship concept, reconfigured and revamped, is worth giving a try.
Let’s face it. It is not a secret that Canadian assistance to Haiti was conceptualized to support the “establishment of a functioning state architecture” of a state loosely characterized as “fragile and failed”. As it currently stands, Haiti is not only fragile; it effectively lacks a functioning government, and some time will pass until such is re-instituted. Although legally sovereign, what is left after the earthquake is a government unable to discharge its duty of carrying out the attached jurisdiction. In a way, factually, Haiti’s sovereignty has been suspended. Some form of legal authority and institution must step in to fill the vacuum.
UN trusteeship is currently unavailable to Haiti because this system does not apply to members of the UN. Nevertheless, the spirit and the provisions laid down in both the UN Charter trusteeship chapters offer guidelines worthwhile embracing. These provisions are expressly instructed by Article 76.b. which lists among its objectives

to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned and may be provided by the terms of each trusteeship agreement.

Some form of an “international partnership based trusteeship”, managed by a council made up of the Friends of Haiti and the participants in Monday’s meeting, and chaired by Haiti’s Prime Minister therefore offers a reasonable and workable governance solution.
Transitional internationally administered territories (TIAT) have featured as an important tool used by the UN in handling “governance gap” type of challenges in the Balkans, Africa, East and South East Asia, and Afghanistan. In many respects, they have mirrored the trusteeship concept quite closely. However, due to their ad hoc nature, knowledge gained from this valuable tool has been dispersed across UN bodies and documents, contributing members’ archives, academic publication, and the like. The benefit of an already extant UN permanent organ lies in its availability to operate as an institutional hub for such information and administrator for the purpose of drawing lessons for use in future similar cases. Therefore, while it will not be a surprise if TIAT becomes the next title of a post-earthquake formula for Haiti, it would be advisable to re-use the good offices of an already available UN trusteeship organ. The Trusteeship Council designated as custodian of a central library and home to assess, research, and educate about international trusteeship-like experiences is a first step towards rejuvenating and re-inventing this old institution.

On October 30

On this day in ...
... 1945, India was admitted to membership in the United Nations. The milestone was achieved 6 days after the U.N. Charter entered into force (prior post), and 2 years before the country attained full independence from its colonizer, Britain (prior post).

(Prior October 30 posts are here and here.)