Author Archives: Otto Spijkers

The authors of the unilateral declaration of independence of Kosovo appear before the ICJ

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By Otto Spijkers

The world-wide attention to its Kosovo Case has motivated the International Court of Justice to add some new features to its website. For the first time, we can actually see video-footage of the distinguished professors pleading on behalf of various countries before the Court. Unfortunately, this seems to be restricted to one-minute impressions only. No one has ever argued a case in just one minute. And thus, if you want to see the pleadings from start to finish, I guess you still have to come to The Hague yourself.  

Let’s say something about this case. Obviously, it is about the future of Kosovo, which is a very sensitive issue. But what is it about exactly? Is it about the statehood of Kosovo? In other words, will the Court determine whether Kosovo has a permanent population, a defined territory, a government, and the capacity to enter into relations with other States?  

Or is it about recognition? Will the Court order all States to recognize Kosovo as a new State? We know that, according to traditional doctrine, a State does not need to be recognized as a State in order to become a State. However, in practice it works quite differently. States decide whether or not to accept a new member to the club, and without such acceptance you cannot enter the club, even if you might think you qualify as a State. Could the Court now become the objective entity, the doorman of the club of States? 

 

The question

 

Unfortunately, it is highly unlikely that the question put to the Court will require the Court to say something about Kosovo’s statehood, the (il)legality of recognitions, or the right to self-determination of the people of Kosovo. Indeed, the General Assembly of the United Nations asked the International Court of Justice the following question:

‘is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’

The question was thus not: ‘Is Kosovo a State?,’ or: ‘Must Kosovo be admitted to the club of States?,’ or: ‘Do the people of Kosovo have a right to self-determination?,’ or anything like that.  

 

The simple answer

 

A simple answer to the question actually posed by the Assembly could be that international law has nothing to say about declarations made by representatives of minorities residing within a particular State. One might argue that such declarations are regulated by national constitutional law. International law might have something to say about whether a certain entity qualifies as a State, and whether other States can recognize it as such. But it does not allow or prohibit the making of such a unilateral declaration of independence itself.   

 

The need for a more complicated answer

 

There seem to be two arguments preventing the Court from providing us with such a simple – and uninformative – answer. The first such argument relates to the principle of territorial integrity, and the second relates to Security Council resolution 1244.

 

Principle of territorial integrity of sovereign States

 

First, one might argue that the issuance of the unilateral declaration of independence by the Kosovo authorities violated the principle of respect for the territorial integrity of Serbia.

One counterargument would be that it is not clear how minority groups could be obligated, under international law, to respect the territorial integrity of the State they reside in. This raises the interesting question of the international legal personality of such groups, and what rights and duties they might have under international law.

Another counterargument to the territorial-integrity-argument is that minorities need not respect the territorial integrity of the State they reside in if they have a right to external self-determination. If the State consistently violates fundamental rights of minorities, it might be argued that such minorities have a right, not just to autonomy within the State (‘internal self-determination’), but to secession from the State (‘external self-determination’). In other words, they may claim their independence.

However, thus far such a claim to independence has only been accepted by the international community in the context of decolonization. Perhaps the Kosovo Case will show that, under certain conditions, self-determination can lead to independence even in the post-colonial world. Indeed, in their pleadings, the Netherlands suggested a number of conditions which must be fulfilled in order for a post-colonial claim to external self-determination to be acceptable. I quote:

First, there are substantive conditions. A right to external self-determination only arises in the event of a serious breach of either:  

1. the obligation to respect and promote the right to self-determination due to the absence of a government representing the whole people belonging to the territory, or the denial of fundamental human rights to a people; or

2. the obligation to refrain from any forcible action which deprives people of this right. 

There is also a procedural condition. All effective remedies must have been exhausted in the pursuit of a settlement before a people may have resort to the exercise of the right to external self-determination.

This is interesting, but probably not relevant for the drafting of the Court’s Advisory Opinion. After all, the case is not directly related to the scope of the right to self-determination of the people of Kosovo.

 

Security Council resolution 1244

 

In any case, if the territorial integrity argument does not work, there is still a second argument that might lead the Court to avoid giving the simple answer, i.e. that international law is irrelevant when it comes to the legality of the issuance of the unilateral declaration of independence. This second argument is based on Security Council resolution 1244, adopted 10 June 1999. Through that resolution, the Security Council established an international civil presence, formally called the United Nations Interim Administration Mission in Kosovo (UNMIK). UNMIK was never explicitly mandated to help Kosovo become an independent State. However, as UNMIK’s website tells us,

‘over the eight years since [UNMIK’s establishment in 2001], as Kosovo’s Provisional Institutions of Self Government (PISG) were established and gained capacity to assume more responsibilities, UNMIK has moved back from an executive role to one of monitoring and support to local institutions.’

It seems, then, that the unilateral declaration of independence by these Provisional Institutions of Self Government, or some other representative of the people of Kosovo, was a logical next – or perhaps even final – step in this process of ‘moving back’.

However, since UNMIK’s formal mandate says nothing explicitly about independence, one may also see the declaration as an obstruction of UNMIK’s work, and thus as a ‘violation’ of resolution 1244. In other words, one might argue that, since UNMIK’s mandate says nothing about the definitive status of Kosovo, this problem can only be solved through a negotiated settlement, i.e. we need to find a solution that is acceptable to both Serbia, Kosovo and the United Nations, particularly the Security Council.  

 

Conclusion?

 

I don’t know what to conclude; that is up to the International Court of Justice. But the global interest in the case does make it tempting for the Court not to give the simple answer, but instead to say a few words about very sensitive stuff, like conditions of statehood, recognition, and self-determination.   

The USA and the Netherlands: 400 hundred years of shared history, shared values and shared paper

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By Otto Spijkers

To celebrate 400 years of enduring friendship between the Netherlands and the United States, the Netherlands government has made a website called NY400 (there is also a Dutch version), with lots of info on the relationship between the Netherlands and the United States of America. It is worth a look.

In a speech of today, the Dutch Minister for Foreign Affairs talked about this happy relationship. Just below are the most interesting parts of his speech (in my opinion that is).

First on the topic of shared paper:

Let me share a historical fact with you that amazed me when I first learned about it. Did you know that the paper on which the Declaration of Independence was printed in 1776 is of Dutch origin? I had no idea. But the ‘broadsides’ John Dunlap used to print his famous copies of the Declaration on the night of the fourth of July were made around 1770 in the Zaanstreek in Holland. This is one of history’s remarkable little details that points to a much broader historical connection between the United States and the Netherlands.

Then on the topic of shared history:

In 1609, Henry Hudson and his crew landed on the shores of what is now Manhattan. The first Dutch settlers followed in his wake. New York City’s street names and flag still bear witness to their early presence.

And finally on the topic of shared values:

The spirit of American society can partly be traced back to Dutch immigrants, who brought with them open-mindedness, tolerance, an enterprising spirit, free trade, a good work ethic and a strong belief in freedom of speech and freedom of religion. In those early years, many minority groups lived alongside each other. They had the freedom to maintain their own identity and practise their religion, as long as they worked hard and contributed to the greater good. It was a model that worked well for New Amsterdam, with its diverse population. It made New York the cosmopolitan city it is today.

Respect for diversity, freedom of speech and freedom of religion are deeply rooted in American society, which truly reflects those potent words of the Founding Fathers: all men are created equal and endowed with certain unalienable rights. Some historians argue that Thomas Jefferson and his fellow drafters drew inspiration from the Dutch Act of Abjuration, written some two centuries earlier. I wouldn’t go as far as to claim copyright, but it’s interesting to see the historic parallels between our two nations.

The values that have united Americans and Dutch people since the early days continue to direct our friendship today. Both our peoples have a strong belief in tolerance, freedom and the pursuit of happiness. We seek to uphold these values at home and abroad and we do so together.

District Court in The Hague makes use of right to exercise universal jurisdiction

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By Otto Spijkers

A few months ago, Joseph Mpambara, a man with Rwandan nationality who committed crimes in Rwanda against other Rwandan citizens, was sentenced to 20 years imprisonment by the Dutch District Court in The Hague. The original judgment was published only a few days ago, and is available on the website of the Court. An English translation of the judgment will be published sometime in the future, and will then become available on the same website.

The judgment is very lengthy, but I want to focus only on the issue of ‘universal jurisdiction.’ As the very brief summary of the facts provided just above makes clear (for more details, see the website of Trial Watch), there was no particular link between the Netherlands and the perpetrator, the crimes itself, or the victims of the crime. The only basis for criminal jurisdiction was thus the principle of ‘universal jurisdiction.’

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Remembering Thomas Franck

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By Otto Spijkers

I was extremely saddened to hear this morning of the passing of Thom Franck. He was one of my professors when I was an exchange student at New York University’s School of Law a few years ago. At that time, Franck was the instructor of two seminars, one on the Constitutional Law of the United Nations, and the other on Recourse to Force in International Law. I was at NYU when the war in Iraq had just started. At that time, students were not so enthusiastic about the United Nations and fundamentally questioned the Organization’s influence on international affairs. Franck sort of kept hope alive. I remember vividly that once, when various students were expressing their disappointment in international law and the United Nations during a seminar session on the use of force, Franck suddenly stood up and started this passionate speech about the power of international law’s principles. He may not have convinced all the students, but it was an impressive performance. Anyways, he taught me all about the law of the United Nations (I am now writing a dissertation about this subject), and he was one of my favorite teachers. It was only last December when I saw him in person. He was one of the speakers at a conference, which took place in the Peace Palace, on the influence of the United Nations on the evolution of global values. His influence on international law, both scholarship and practice, was substantial. He will be missed.

Rebuilding Zimbabwe

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This post was written by Richard Norman, in Harare, the capital of Zimbabwe

Earlier this year, inflation in Zimbabwe reached 231 million per cent per month (with some unofficial estimates at more than 80 billion per cent). Prices doubled every day. Citizens were forced to cross borders to buy bread. The political instability that had wrecked the country for a full decade, and which had begun with the violent seizure of white-owned farms, appeared finally to have destroyed the Zimbabwean economy. Computers froze up when forced to calculate the zeros.

But following the swearing-in of a unity government in February, the first stirrings of stability returned. The power-sharing agreement between Morgan Tsvangirai, who was widely seen to be robbed of a presidential win in elections in 2008, and Robert Mugabe, the country’s only and continuing president, was hailed as a breakthrough. The Zimbabwe dollar, which in January featured $100 trillion notes (even after cutting more than half a dozen zeros) was scrapped in exchange for a liberal foreign currency regime. Now goods and services are paid for in dollars or rand, change is very scarce, and the old currency is sold to tourists as memorabilia.

But things are far from happy, and one hundred days after the unity government came into office—with Tsvangirai as prime minister and Mugabe, tenaciously, amazingly, still in power as president—the economy continues to be in tatters. Zimbabwe’s major cities, Harare and Bulawayo, are struck frequently by huge power outages, to say nothing of rural areas. People who make a monthly salary of $100 find bills in their post from the state electricity provider of $150 or more; some places haven’t seen electricity in more than a year. Water services are similarly in shambles. Suburban professionals who once enjoyed comfortable lives may still have their homes, but they must wake at 4 a.m. in order to beat the line at the community borehole. A cholera outbreak in and around the capital earlier this year claimed more than 4,000 lives, plainly attributable to the ransacking of public utilities under the uncontested time of Mugabe’s reign. While the supermarket shelves have filled up again with basic products, and gasoline is widely available, signs of deprivation are apparent everywhere. Torture continues in prisons with journalists and lawyers frequent targets. There have been reports of the general prison population surviving on tree leaves and rats.

How have Mugabe and Tsvangirai been getting along as partners in power? The two men have faced off against each other throughout the last decade, which saw the rise of the latter as the only opposition leader with the stamina and popular appeal to challenge the independence hero. Tsvangirai, who has survived repeated beatings by Mugabe henchmen, and whose wife was killed in March when a truck side-swiped the car the couple were driving, has been doing his best in the face of repeated interference by the president and ZANU-PF, the president’s party.

On the one-hundred day mark of the unity government, serious obstacles remain. The key to revitalizing the Zimbabwean economy is reforming the central bank, in particular its corporate governance structure, and launching a new currency. This process, which Tsvangirai and his finance minister have been hard at work on, has been undermined by the hold-over reserve bank governor Gideon Gono, the man who presided over the extraordinary inflationary period and whose official signature testifies to the worthlessness of the $100 trillion note. Mugabe has insisted on Gono’s reappointment against the wishes of Tsvangirai and much of the international community, and also wants the reappointment of the attorney general, Johannes Tomana, who would rubber stamp Mugabe and ZANU-PF’s lawless actions. These are the outstanding issues to be dealt with under the unity agreement and have finally, after endless negotiations, been sent to the Southern African Development Community for arbitration. While this may eventually resolve the problem in the months to come, this may also be a tactic on the part of Mugabe to run Tsvangirai and his ministers into the ground.

Faced with such a principled and well-organized opposition, so deeply unpopular, most other leaders would have ceded power no matter how undemocratic and tyrannous their nature—especially at the age of 85. But Mugabe is sui generis. The last African independence leader, the last bastion of a false and misery-generating Afro-Marxism, the Zimbabwe president appears to have a limitless capacity and energy to plot against opponents and see them off with maximum violence. Even in his dotage he remains formidable. As the months go by and the unity government remains stuck in mid-gear, his interference and stalling appear less to be a basic unfamiliarity with the concept of sharing power and more of a tactic to wear out his opponents before again going on the attack.

Master Class on doing research at the interface of international law and philosophy (UPDATED)

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By Otto Spijkers

[Update. The programme has changed somewhat. See the website of Leiden University for the new programme.] 

In 1950, Hans Kelsen wrote in The Law of the United Nations that ‘[i]t is not superfluous to remind the lawyer that as a ‘jurist’ he is but a technician whose most important task is to assist the law-maker in the adequate formulation of the legal norms.’ One may wonder whether researchers of international law ought to restrict themselves to being just a ‘jurist.’ Are they not allowed to engage in ‘philosophizing’ as well? And, vice versa, one may wonder whether philosophers – and political scientists – may also act as jurists.

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Most popular posts since July 2008

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Since July 2008, this blog has been viewed over 98,276 times. I think this is a good opportunity to celebrate. In order to do so, I have listed the most popular blog articles, in terms of the number of views since July 2008. This is the Top 10 (number of views in brackets):

  1. Manipulating and measuring the political spectrum part 1: Obama and the flip flops (4619): In this post, Nick Li provided his own analysis of whether Obama had really moved to the centre on various issues, as was often suggested.
  2. Calvin & Hobbes on International Law (2513): In this post, Otto Spijkers provides an example of the lessons international lawyers can learn from comic books, especially Calvin & Hobbes.
  3. Understanding Bokito, the gorilla that escaped and attacked a woman (2290): In this post, Otto Spijkers tried to explain why a gorilla escaped from his cage in Blijdorp Zoo (Netherlands), and immediately attacked a woman that visited him on an almost daily basis in the Zoo.
  4. In Manipulating and measuring the political spectrum part 2: Political Rankings and Compasses (2266), Nick looked in greater detail at how one can actually measure the political spectrum. He looked at what constituted the ‘centre’ in US politics, and how these things were measured by the likes of the National Journal, which ranked Obama as the most liberal Senator in 2007.
  5. Political Economy of Myanmar/Burma Part 2 – what can the international community do? (1765): In this post, Nick Li assessed the steps the international community could take to alleviate the suffering of the Burmese people. He looked at the possibility of military intervention, economic sanctions, and engagement.
  6. New Online Journal: The Göttingen Journal of International Law (1553): In this post, Tobias Thienel wrote about the publication of the first issue in history of a brand new, exciting online journal: the Göttingen Journal of International Law (GoJIL). The GoJIL is the first student-run German international law review. Tobias himself was actively involved in setting up this journal: one of the articles in the first journal was written by him, and he is a member of the journal’s Scientific Advisory Board.
  7. Why the internship at UN Headquarters should be (un)paid (1549): In this post, Otto Spijkers listed all the reasons brought forward to defend the position that the UN interns should get paid for the duration of their internship. The comments to this article have slowly evolved into what can only be called an Unofficial United Nations Internship Programme Discussion Group, where various issues relating to the application process are discussed by a number of future interns.
  8. Acts of Dutchbat must be attributed to the United Nations and not to the Netherlands (1108): This post is about a number of cases before the Dutch District Court relating to the responsibility of the Netherlands for the failure of Dutch peacekeepers in Srebrenica in the early nineties.
  9. The problem with MONUC (1102): In this post, Richard Norman looks critically at the achievements and failures of UN’s largest peacekeeping mission, MONUC, which is based in the Congo.
  10. Update on Australia’s refugee policy (1034): In this post, Mel O’Brien looked critically at recent changes in Australia’s refugee policy. After looking in great detail at a speech by Chris Evans, Australia’s federal Minister for Immigration and Citizenship, Mel concluded that ‘it seems the government is really planning a complete overhaul of the immigration system to render it fair and treat asylum seekers with the dignity they deserve.’

I calculated the number of hits in the morning of 25 March 2009. The blog articles that were written before July 2008 have been published once again on this new blog, but they actually first appeared on our previous blog (www.1948blog.com) which is no longer available. Unfortunately I thus cannot take into account the number of views of those posts as originally published. The posts that appeared on United Nations, Global Values, and the Individual and The Core, our previous blog efforts, are also not taken into account. They are still available on the original blogs.

[No] parliamentary inquiry into the Dutch decision to give political support to the invasion of Iraq in 2003 (UPDATED)

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By Otto Spijkers

It seems increasingly likely that there will be a Dutch parliamentary inquiry into the Dutch decision to give political support to the invasion of Iraq in 2003. [UPDATE: Today (2 February 2009), the Dutch Government decided to establish a Commission, chaired by Willibrord Davids, a former Chief Justice of the Dutch Supreme Court who does not seem to have much experience in the field of international law, to look into the Dutch decision to give political support to the invasion of Iraq in 2003.] Continue reading →

The Human Rights Declaration celebrates its 60th anniversary and the General Assembly’s gift to the world is the right of individuals to complain about violations of their economic, social and cultural rights

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By Otto Spijkers

On 10 December 2008, the General Assembly adopted a resolution celebrating the Sixtieth anniversary of the Universal Declaration of Human Rights. More importantly, the Assembly also adopted a resolution containing the text of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, granting a right to individuals and groups to complain about alleged violations of their rights granted to them in the International Covenant on Economic, Social and Cultural Rights. These complaints will be examined by the Committee on Economic, Social and Cultural Rights, based in Geneva. Continue reading →

International Master Class on ‘Ethics in International Relations’ with Thomas G. Weiss and Leif Wenar

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By Otto Spijkers

On 11 December 2008, an International Master Class will take place at the Campus The Hague, Netherlands. Thomas G. Weiss (CUNY) will give a presentation of the United Nations Intellectual History Project, of which he is the Co-Director. Leif Wenar (King’s College London) will talk about the Role of Global Ethics in International Relations. There is an opportunity for PhD candidates to present their research and receive feedback from these international experts. For registration and more information, see the website of the Master Class.