The first Peace Palace Library Lecture will take place 23 may 2011, inside the historic reading room of the Peace Palace. Everybody is welcome to attend. Simon Minks, Public Prosecutor to the Court of Appeal in The Hague, and Roel van Rossum, Coordinating Vice-President at the District Court The Hague, will discuss the van Anraat Case, and the challenges Dutch courts face when dealing with complex issues of international criminal law. The Peace Palace Library Lecture Series consists of approximately four lectures a year about issues of international public law. Each lecture will start with a small reception in the library’s new reading room, followed by the lecture in the historical reading room. The Lecture Series are open to everyone and are especially interesting for researchers and students, as well as diplomats, international civil servants, journalists and other professionals working in the field of international public law. See the website of the Hague Justice Portal for more detailed information. We hope to see you on the 23rd of May!
By Otto Spijkers
Is the right to self-determination of peoples applicable to the present revolution – or civil war – in Libya? Can one claim that a State with a dictatorial regime is violating the right to self-determination of its own population?
The most authoritative definition of the right to self-determination does not answer any of these questions. It simply states the following:
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
In his Self-determination of peoples: a legal reappraisal, Cassese pointed out that the word ‘peoples,’ as used in Article 1 of the human rights covenants (cited above), also applied to ‘entire populations living in independent and sovereign States.’ Although the right to self-determination of an entire population of a State is perhaps the most interesting application of the right to self-determination from a philosophical point of view, it initially did not get much attention, since the political urgency was lacking. Whenever the meaning of the word ‘people’ was discussed, the dominant question was always whether it referred solely to colonial peoples, or whether it applied also to minority groups within a State. Other applications, such as the application to the entire population of a State, were not discussed extensively.
An exception to this general rule is the Friendly Relations Declaration, adopted in 1970. In that Declaration, there is one notorious paragraph about the right to self-determination of the entire population of a State. This stated, at the end of an entire paragraph on the self-determination of peoples, that
nothing in the foregoing paragraphs [should] be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or color.
This clause has been reiterated in some of the most important declarations, in particular the Vienna Declaration and Programme of Action (1993), and the Declaration on the Occasion of the Fiftieth Anniversary of the United Nations (1995). In both these two documents, the phrase ‘without distinction as to race, creed or color’ was replaced by ‘without distinction of any kind,’ to emphasize that the list of prohibited distinctions in the Friendly Relations Declaration was not exhaustive.
Although it reads like a savings clause, the clause just quoted is in reality much more than that. It describes what is the essence of the right to self-determination as applied to the entire population of a State. In the view of Rosenstock, who played a principal part in the drafting of the clause, ‘a close examination of its text [would] reward the reader with an affirmation of the applicability of the principle [of self-determination] to peoples within existing states and the necessity for governments to represent the governed.’
The clause suggests that respect for the right to self-determination of the entire population of a State requires that the entire population is represented somehow by its own State’s government. Many scholars have later defined this as the essence of the right. According to Higgins, the right should be interpreted as requiring that ‘a free choice be afforded to the peoples, on a continuing basis, as to their system of government, in order that they [could] determine their economic, social, and cultural development.’ It was a right of the entire population to control its own destiny.
Such an interpretation of the principle of self-determination would be consistent with that of the drafters of the UN Charter. It was already agreed in 1945 that ‘an essential element of the principle in question [was] a free and genuine expression of the will of the people, which avoid[ed] cases of the alleged expression of the popular will, such as those used for their own ends by Germany and Italy in later years.’ This remark strongly suggested that a dictatorial government, like the German and Italian government during the Second World War and possibly the Libyan government of today, would constitute a violation of the right to self-determination of the oppressed people. It basically called for a democracy, or at least some form of ‘representative government’ wherein ‘all the elements of the population of the territory [were] represented in the appropriate – representative – institutions.’
By Otto Spijkers
In 1970, Thomas M. Franck wrote an article about changing norms governing the use of force, which he gave the following title: who killed Article 2(4)? It seems that the same Article 2(4) UN Charter is in trouble once again. On the same day (today), two interesting blog posts were published on the legal status of the prohibition to use force, as codified in Article 2(4). James Green questioned the peremptory status (jus cogens) of the prohibition of the use of force, and Natalie Oman argued that the use of force might be legal even without Security Council authorization.
Article 2(4) UN Charter prohibits the use of force by one State against another. Is this a norm which allows no derogation? Is it a supernorm? Is it jus cogens? Green argued that the norm of Article 2(4) UN Charter cannot be peremptory (jus cogens), inter alia because the Charter itself already allows two exceptions: self-defense and UN-authorized collective measures. It is thus derogable, and not jus cogens.
This seems to be a minority view. After all, Article 2(4) UN Charter is one of the most popular examples of a peremptory norm
in view of the community of States. Judge Schwebel of the International Court of Justice pointed out that ‘[w]hile there [was] little agreement on the scope of jus cogens, it is important to recall that in the International Law Commission and at the Vienna Conference on the Law of Treaties there was general agreement that, if jus cogens has any agreed core, it is Article 2, paragraph 4 [of the UN Charter].’ See his Dissenting Opinion in the Case Concerning Military and Paramilitary Activities between Nicaragua and the United States of America (1984).
There are many problems with Article 2(4) UN Charter. It is still
unclear what the word ‘force’ means. The travaux preparatoires of the UN
Charter, and the many declarations adopted on the topic by the General Assembly, suggest that the use of force has to involve military measures, but it does not explicitly say anywhere in these documents that ‘force’ has to be military force. See the relevant paragraphs of General Assembly resolutions 42/22 (1987) and 2625(XXV, 1970).
These and other problems can be avoided by arguing that the prohibition to use force is jus cogens, even though the formulation of this prohibition in Article 2(4) is not. But it is difficult to define the jus cogens-version of the prohibition to use force in such a way that it only partially corresponds with Article 2(4). Does the jus cogens-version of the prohibition to use force boil down to the prohibition to commit inter-State aggression? But what is the definition of aggression then? Is it the one adopted by the International Criminal Court? The Court has said nothing about any jus cogens. Etc. In any case, any jus cogens version of the prohibition to use force must also provide room for collective action and self-defense without seeing those as exceptions to the rule. After all, jus cogens norms allow for no exceptions; they are nonderogable. According to Green, (probably) no such norm has been
recognized as jus cogens by the community of States (he is a positivist, so he
does not want to base a jus cogens norm purely on morality and global values).
After having noticed all these problems, one might wonder what the added benefit is of labeling the prohibition to use force, or Article 2(4) UN Charter, as jus cogens. Do we really need it to be jus cogens? According to Natalie Oman, it does make a big difference.
If the Article 2(4) version of the prohibition to use force is not jus cogens, then States are allowed to use force against other States, if the aim is to defend jus cogens norms, such as the protection of individuals from war crimes, genocide, and crimes against humanity. In such case it is possible to ignore Article 2(4) and act legally anyways. But this is only possible when Article 2(4) is not jus cogens. If Article 2(4) is not jus cogens, then this would allow the international community to intervene in Libya at the moment, even without a Security Council authorization (as is required by the UN Charter regime, of which Article 2(4) UN Charter is an element). So it does indeed make a difference. Seeing what happens in Libya at the moment, one might be inclined to indeed kill Article 2(4) UN Charter, and claim that the duty to protect individuals from crimes against humanity etc. is of such importance that it overrides all other legal norms and obligations, including the prohibition to use force. This would make such a duty truly jus cogens (but it would create a lot of problems as well….).
Professor Pasha L. Hsieh, Assistant Professor of Law at the Singapore Management University School of Law, asked us to post the following announcement:
Registration Begins: 2011 ILA Asia-Pacific Regional Conference (Taipei, Taiwan)
The Chinese (Taiwan) Society of International Law is pleased to hold the International Law Association (ILA) Asia-Pacific Regional Conference from May 29 to June 1, 2011 at the Grand Formosa Regent Taipei, a Four Seasons Hotel, in Taipei, Taiwan.
The theme of the conference is “Contemporary International Law Issues in the Asia Pacific: Opportunities and Challenges.”
This conference will provide a forum for international law stakeholders to explore the full range of international and transnational legal issues related to the Asia-Pacific region.
Although the registration deadline is May 10, the Conference Committee suggests that interested participants register by April 10 in order to enjoy the early bird rates. Discounted registration fees are offered to ILA members and young scholars/professionals.
For detailed information, please visit the ILA Asia-Pacific Regional Conference website. Additional questions about the conference can be directed to Professor Pasha Hsieh, Conference Co-organizer, at email@example.com.
By Otto Spijkers
It has just been announced that the International Residual Mechanism for Criminal Tribunals shall be located in my hometown, The Hague, self-acclaimed city of peace and justice. This Mechanism will deal with the remaining cases of the ICTY and ICTR, once these Tribunals end their operations and basically cease to exist. As far as I am aware, it is not yet clear where exactly this new organization will be housed.
The Residual Mechanism will commence its tasks on the first of July, 2012 (for Rwanda-cases) and 2013 (for Yugoslavia-cases). According to the UN Security Council, the Mechanism’s main task will be to bring to trial, after the closure of the Tribunals (ICTY and ICTR), the fugitives who are ‘among the most senior leaders suspected of being most responsible for crimes.’ Fugitives are individuals who have already been indicted by the Tribunals, but have so far escaped prosecution. Ratko Mladic comes to mind, but he is not the only one. Goran Hadžic is the lesser known fugitive.
The Council described the Mechanism as a ‘small, temporary and efficient structure, whose functions and size will diminish over time, with a small number of staff commensurate with its reduced functions.’ When thinking of suitable accommodation, one would think of a house which is equally capable of diminishing in size as time progresses. I am not sure such houses exist at the present moment.
Duty of All States to Cooperate
Because the Mechanism, which has a Chapter VII mandate, is the legal successor of the Tribunals, all States have an obligation to ‘render all necessary assistance to the […] Mechanism, as appropriate, in particular to achieve the arrest and surrender of all remaining fugitives as soon as possible.’
No special website has been established yet for this new mechanism. For more information about the International Residual Mechanism for Criminal Tribunals and its mandate, see the Security Council resolution and the Statute of the International Residual Mechanism for Criminal Tribunals attached to it (the relevant resolution is S/RES/1966(2010)).
Please find below an announcement for a seminar on climate change and human rights, organized by the Workgroup on Sustainable Development and Human Rights of the Dutch Section of the International Commission of Jurists (of which I am a member). The seminar is in Dutch. Some excellent speakers are included in the programme, such as prof. Ruud Lubbers, Prof. Cees Flinterman, Sylvia Borren and Liesbeth van Tongeren.
For the entire programme and registration, see the website of the Dutch Section of the International Commission of Jurists.
Hope to see you there!
All the best,
Symposium: Klimaatverandering en Mensenrechten
Een jaar na Kopenhagen, een maand na Cancún: de menselijke kant van klimaatverandering
“All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” – Artikel 1, Universele Verklaring van de Rechten van de Mens
We leven nu één jaar na de klimaattop in Kopenhagen en op de dag van het seminar ruim acht weken na die in Cancún. Kopenhagen had geen echte uitkomst. Althans, zonder de duidelijke afspraken over CO2 reductie waar velen op hoopten. De voorlopige uitkomsten van Cancún lijken meer hoop te bieden op een effectievere mondiale aanpak van klimaatverandering.
Grote groepen mensen moeten nu al dagelijks omgaan met de gevolgen en risico’s van klimaatverandering voor hun fundamentele rechten, zoals die op leven, water, voedsel, gezondheid en eigendom.
Waar staan de aarde en haar bevolking nu op het gebied van klimaatverandering? Welke mensenrechten staan precies ‘op de tocht’? Zouden mensenrechten een basis kunnen vormen voor landen of de internationale gemeenschap om op te treden tegen klimaatverandering? En, hoe kunnen we meer doen, ‘in a spirit of brotherhood’? Deze en andere vragen staan centraal tijdens het seminar ‘Klimaatverandering en Mensenrechten. Een jaar na Kopenhagen, een maand na Cancún: De Menselijke Kant van Klimaatverandering’.
- Prof. Ruud Lubbers – Minister van Staat
‘Klimaat, Mensen, Rechten en Vluchtelingen’
Het seminar wordt afgesloten met een panel debat o.l.v. Prof. Cees Flinterman (UU, UM en VN Comité inzake Economische, Sociale en Culturele Rechten), met o.a. Sylvia Borren (Worldconnectors) en Liesbeth van Tongeren (Tweede Kamerlid GroenLinks).
In de plenaire sessie worden de problematiek van klimaatverandering en de verhouding tussen klimaatverandering en mensenrechten uiteengezet door deskundigen. Daarop volgt in de workshops verdere verdieping in de verschillende aspecten van beide onderwerpen, worden de reeds bereikte resultaten op dit gebied in kaart gebracht en vervolgstappen overwogen.
Het seminar wordt georganiseerd door het Nederlands Juristen Comité voor de Mensenrechten, ICCO en Stand Up For Your Rights.
Datum: 11 februari 2011
Tijd: 13.00 – 17.15 uur (12 – 13 uur inloop met koffie, thee en broodjes)
Locatie: Joseph Haydnlaan 2a (3533 AE) te Utrecht
In my country (Nederland), the Queen delivers a Christmas speech at the end of each year. I think that is a nice idea, so I also wrote such a ‘speech’ and published it on the blog of my new employer, the Peace Palace Library. The speech – it is not a lecture or a sermon or anything of that kind!! – is entitled Facebook and the individual in the global village. I highly recommend not so much this speech of mine, but the blog in general. It is definitely worth reading if you’re interested in international law. I also want to use this opportunity of writing to you to wish all the readers a merry Christmas and a happy 2011!
The following announcement on the acquisition of Grotius’ De iure Belli ac Pacis was posted today on the website of the Peace Palace Library:
The Peace Palace Library has acquired a unique first print of the first edition of “De iure belli ac pacis libri tres” by Hugo Grotius […] at an auction in Hamburg yesterday evening. It is a very valuable addition to the famous Grotius-Collection of the Library.
Grotius wrote this book in 1625 during his exile in Paris. In this work, based on natural law, he investigated and explained his theory of “just war” (when war is justified, what are the causes of war and what are the rules of war). It is widely regarded as the “Foundation of Modern International Law”. The book was finished in great haste to be in time for the Frankfurt Bookfair. As a result there had not been enough time to correct all pages and page numbering. This print also lacks indices and a table of content. For specialists it will be most interesting to compare this print with later corrected versions.
The only other known copy of this print is in the Bodleian Library in Oxford.
After 385 years Grotius’ masterpiece has come to The Hague, the “Legal Capital of the World”. The acquisition of this book by the Library will stimulate further Grotius-research and the study of modern international law.
The acquisition of this great work has been made possible with the support of:
- Dorus Rijkers Fonds;
- Samenwerkende Maritieme Fondsen;
- Dr. Hendrik Muller’s Vaderlandsch Fonds;
- M.A.O.C. Gravin van Bylandt Stichting;
- BRILL Publishers;
- Prof. Mr. Laurens Winkel;
- and the Carnegie-Foundation.
By Otto Spijkers
Friday 29 and Saturday 30 October 2010, a very interesting conference takes place at my new workplace, the Peace Palace. The conference is about corporate liability for pillaging natural resources. The website of the Pillage Conference describes the topic of the conference as follows:
The illegal exploitation of natural resources has fueled and financed brutal conflicts around the world, yet there has been little success to date in holding companies accountable for trafficking in conflict resources. This conference, accompanying the Open Society Justice Initiative’s launch of a manual on prosecuting commercial actors for the war crime of pillage, is meant to foster renewed public debate about how the law can—and should—be used against companies whose theft of natural resources has driven conflict.
The manual, entitled Corporate War Crimes: Prosecuting the Pillage of Natural Resources, was prepared by James G. Stewart, Assistant Professor, University of British Columbia. He served, inter alia, as Appeals Counsel with the Prosecution of the United Nations International Criminal Tribunal for the former Yugoslavia. The manual is available for free online at the conference website, and I highly recommend it. The conference is organized by the Open Society Justice Initiative, and the Grotius Centre for International Legal Studies of Leiden University.
PhD researcher Christophe Paulussen examined the position of the International Criminal Court towards suspects who claim to have been irregularly brought before the International Criminal Court. He concludes, among other things, that the International Criminal Court should pay more attention to alleged irregularities in the pre-trial phase – the foundations of the case.
As an institution without a police force, the International Criminal Court (ICC) is dependent on third parties in arresting and surrendering suspects to The Hague. Especially in (post-)conflict areas, the focus of the ICC’s investigations, there is a risk that legal procedures are followed less scrupulously.
Already in the cases Lubanga Dyilo, Katanga and Bemba Gombo, the suspects claimed that problems could be identified with respect to the way they were brought into the jurisdiction of the Court. An example concerned the alleged illegal arrest and detention in the country of origin prior to the formal arrest of the ICC.
Paulussen studied the position of the ICC towards these kinds of claims: so-called male captus claims. He concludes that the ICC theoretically pays much attention to human rights – and that this is to be welcomed – but that it should worry even more about alleged pre-trial irregularities in practice. Only in that way, human rights and other legal guarantees can acquire true significance.
In addition, Paulussen is of the opinion that the ICC should examine more thoroughly whether or not it has the possibility to refuse (the exercise of) jurisdiction in the case of serious male captus cases. In that context, Paulussen asserts that the ICC should embrace an abuse of process-like doctrine, a broad doctrine with which the integrity of the legal proceedings can be supervised. With such a doctrine, the ICC can also properly address male captus claims which, for example, involve alleged violations of State sovereignty, something which does not seem to be possible at present.
Finally, Paulussen argues more generally that the international community must take its role as the enforcer of the ICC seriously. The support of States and international organisations in arresting and surrendering suspects is indispensable to attain the objective of the Court, namely to put an end to impunity.
Christophe Paulussen (Maastricht, 1979) followed the program International and European Law and the Research Master in Law at Tilburg University. His research was financially supported by the Netherlands Organisation for Scientific Research (NWO).Christophe Paulussen defended his PhD thesis on Friday, 24 September at 2 PM in the Auditorium of Tilburg University, Warandelaan 2. Title PhD thesis: Male captus bene detentus? Surrendering suspects to the International Criminal Court. Supervisors: prof.dr. W.J.M. Van Genugten and prof.dr. M.S. Groenhuijsen. For more information, please contact Christophe Paulussen, firstname.lastname@example.org, tel.: 00 31 6 44 912 289.