The Effects of the ICJ Decision on Kosovo (if any) on the “Frozen Conflicts” of the Former Soviet Union

by Graham Dumas (J.D. Candidate 2011)

Note: This is a cross-post from my Russia-specific blog, Onion Domes and Oligarchs.

That yesterday’s advisory opinion by the International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, was decided on extremely narrow grounds has already been noted elsewhere in the blogosphere. Further, its status as an advisory opinion of course means that it is non-binding (though widely respected) and pertains only to the question asked of the Court by the U.N. General Assembly.

Nevertheless, it may be interesting to apply to the context of the frozen conflicts in the former Soviet Union some of the principles discussed in and generated by the Court’s Kosovo opinion. After all, political leaders in Moscow have frequently (and threateningly) cited Kosovo as a precedent for the independence of Abkhazia and South Ossetia, despite the obvious and numerous differences between these cases. A brief bit of analysis after the jump.

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ICJ Rules on Kosovo Independence

The International Court of Justice today held that international law did not prohibit Kosovo’s declaration of independence, while sidestepping the larger issue of Kosovo’s statehood.  All of the opinions can be found here, but we are happy to host the opinion of the court on this JILP Forum, since the ICJ’s site has been difficult to access as of late.

In a way, as Chris Borgen notes at Opinio Juris, this result should not come as a surprise, since international law generally does not seem to have much to say about declarations of independence.  The Court sidesteps the trickier problem of the lex specialis created by S.C. Res. 1244 (and the subsequent Constitutional Framework adopted by UNMIK) by holding that the declaration did not constitute an act of one of the Provisional Institutions of Self-Government.  This lays the groundwork for the Court to conclude that the declaration essentially took place outside the scope of S.C. Res. 1244 and the framework.  Preliminary thoughts after the jump.

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Implications of European De-Integration for International Law

By Matthew Turk

The G20 Summit

At the recent G20 Summit, European leaders butted heads with the Obama administration by opposing further stimulus spending and calling for greater fiscal “austerity.”  The move to fiscal tightening, even during unsteady economic times, reveals the profound affect that the Greek debt crisis has had on policymakers in other European countries.  In particular, it indicates a common concern that growing public debt poses near-term challenges to the continued viability of an economically integrated European Union.  The potential unraveling of the legal-institutional structures of European integration uproots assumptions about international law held by commentators across the ideological spectrum.

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Welcoming a new staff

The NYU Journal of International Law and Politics is pleased to introduce the members of its 2010-2012 staff.  As a student-run journal at the best international law program in the U.S., JILP provides a unique opportunity to become acquainted with the rich world of international law scholarship.  Welcome aboard!

Like many student-run journals in the U.S., the Journal of International Law and Politics selects its staff through an anonymous process that evaluates their knowledge of and experience with international law, their writing and editing skills, and their academic performance.  This year saw particularly fierce competition for the limited number of spaces on our staff, and we couldn’t be more pleased with the results.  Hit the jump for the names of our new staff editors, and vist the About page for the complete masthead.

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Estreicher on Defender’s Duties in Armed Conflict

NYU Law Professor Samuel Estreicher has posted an interesting working paper on SSRN, titled Privileging Asymmetric Warfare?: Defender Duties Under International Law.  Here is the abstract:

Scholarship and advocacy needs to bring defender duties to the forefront of any discussion and investigation of armed conflicts. The necessarily joint contribution of attackers and defenders alike to civilian harm must be recognized. Any investigation of an armed conflict must focus on the duties of both parties and evaluate the feasibility of attacker compliance with some of the more open-ended obligations of international humanitarian law (IHL), such as the so-called duty of proportionality, as a function in part of the extent of defender compliance with its duties.

There are open areas in IHL. States that have acceded to Additional Protocol (AP) I are not necessarily bound by ICRC interpretations and they and states that have declined to ratify AP I can play an active role in formulating and urging others to adopt rules of practice that strike the right balance between attacker and defender duties. Even if, for example, there is widespread international recognition that, at some abstract level, the duty of proportionality is grounded in customary law, the content of that duty is not necessarily identical to the wording contained in AP Article 57. The effectiveness of such a duty, including the ability of military commanders to implement it in the air and on the ground, may well depend on serious consideration, elaboration and implementation of defender duties, for defenders are often in the superior position to minimize civilian exposure to the dangers of military operations.

Defender duties in armed conflicts is a neglected area of IHL. This needs to change if the overall mission of this body of law – minimization of harm to civilians – is to have any reasonable prospect of being realized.

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Making Amends

Over at Opinio Juris this morning, my good friend and colleague Scott Paul introduced the Making Amends Campaign, which is led by the Campaign for Innocent Victims in Conflict (CIVIC).  Scott and CIVIC are working to develop a general practice…

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Book Review: The Least Worst Place (Karen Greenberg)

Continuing with the theme of armed conflict, detention, and terrorism, the latest installment in our occasional series of book reviews addresses Karen Greenberg’s The Least Worst Place: Guantanamo’s First 100 Days.  This review may also be found in Issue 42:3 of the Journal of International Law and Politics.

By John Wunderlin

In the preface to The Least Worst Place: Guantanamo’s First 100 Days, Karen Greenberg briefly sets out the aim of the book: to describe the early days of the Guantanamo Bay detention facility, in which few abuses occurred despite incredibly trying circumstances, and to ask whether this narrative sheds any light on how later abuses came to occur and how such abuses might be avoided in the future. Perhaps in deference to the complexity and difficulty of the subject, Greenberg never tries to formulate the lessons as a set of policy prescriptions. Nevertheless, she succeeds in developing a strong understanding of how certain forces and circumstances gathered to create a disaster at Guantanamo while other forces worked to keep disaster at bay.

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Book Review: Terrorism, War and International Law (Myra Williamson)

This occasional series will highlight the book annotations that constitute the back pages of every issue of the NYU Journal of International Law and Politics.  We are beginning with this review of Myra Williamson’s Terrorism, War and International Law: The Legality of the Use of Force Against Afghanistan in 2001, because it raises the crucial question of the right of States to use force in self-defense against non-State actors.  This issue sits in the background of much of the current debates about the use of force, most recently in Professor Alston’s Targeted Killings report.

By Graham F. Dumas

Myra Williamson’s Terrorism, War and International Law: The Legality of the Use of Force Against Afghanistan in 2001 comes at a time when the conflict in Afghanistan is returning to the fore of U.S. foreign policy and as the fight against terrorism continues to expand. Yet many of the legal questions surrounding this conflict were simply glossed over at the time of the invasion and have not yet been satisfactorily resolved.

Basing her argument mainly on legal history, Williamson asserts that the use of force against Afghanistan could not be legally considered self-defense according to the U.N. Charter because there was no armed attack for the purposes of Article 51, because the Security Council did not authorize unilateral force in Resolution 1368, and because Al Qaeda’s actions could not be attributed to the Taliban. Similarly, the author argues that the invasion of Afghanistan was not legal under customary international law because it was neither necessary nor proportionate, and there was no immediate threat of attack in the weeks following September 11.

In vigorously asserting the illegality of the invasion of Afghanistan, Williamson raises a number of interesting points
and provokes a great deal of thought, especially with respect to the many weaker links in the argument for the invasion’s lawfulness. As she notes, the International Court of Justice (ICJ) has held on numerous occasions that Article 51 applies only to armed attacks by states, and the link between Al Qaeda and the Taliban is indeed tenuous, especially under a classical interpretation of the law. Particularly insightful is the study of the opinio juris of various NATO members with respect to that organization’s declaration that an armed attack occurred; the author suggests that what appeared to be a unanimous declaration that September 11 was sufficient to trigger the inherent right of self-defense was in fact anything but. Despite these effective points, Terrorism, War and International Law is a disappointing and ultimately unsuccessful effort which leaves out more than it includes, treats as fact several highly contentious claims necessary to support the main thesis, and often fails to address the post-Afghanistan era’s most pressing legal questions.

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