Kategorie: Völkerrecht

Russian soldiers in Ukraine?

~ RJ ~ Kommentar hinterlassen
Ever since the end of the Second World War, most armed conflicts have been non-international in character, with major powers often being involved indirectly by providing funds, weapons, training, and similar assistance to local forces. We have seen this pattern in Syria and, so it seemed, in Eastern Ukraine. To frame it in legal terms: States use indirect force (which is of course also covered by the prohibition of the use of force, cf the good old Nicaragua judgment), but refrain from direct force, i.e. sending their own troops. However, concerning Ukraine, the New York Times reported on the direct involvement Russian special forces in Eastern Ukraine as early as April 2014:
http://www.nytimes.com/2014/04/21/world/europe/photos-link-masked-men-in-east-ukraine-to-russia.html?_r=0

Prompted by these reports, VICE News tried to find the soldier shown on the picture and proving that the allegations were not correct, at least not in the sense as described by the New York Times:

On the diplomatic plane, allegations indicating direct involvement in the sense of Russian soldiers themselves being present were voiced by France during Security Council Meeting 7165 from 29 April 2014:

We are witnessing a a subversive operation that has been planned, barely disguised and orchestrated by Russia. Russian special forces do not even hide anymore. Some time ago, our Russian colleague denied their involvement in Crimea, while his President recognized it a few days later. No doubt, he will do the same with respect to current events in Ukraine. France strongly and unequivocally condemns those unacceptable attempts by Russia to destabilize Ukraine.

However, Russia has consistently denied at least direct involvement in the sense of sending its own troops to Ukraine at the same Security Meeting for instance (and throwing a verbal punch at the US and its large number of military bases abroad):

With regard to armed forces, our armed forces are on Russian territory. American forces are hardly at home. They are in Australia, Lithuania, Poland and on the Black Sea, where an American vessel has remained longer than it was invited to do. Yes, our troops do conduct training exercises. But they do so in a transparent manner and while upholding all existing international agreements. We do not have any aggressive intentions towards Ukraine. They Kyiv Government should keep a cool head and not engage in reckless activities with respect to the people in the south-east of the country, where there are many Russian citizens as well.

While Russia hasn’t changed its official position until fairly recently at least (see http://www.washingtonpost.com/world/putin-denies-russian-troops-are-in-ukraine-decrees-certain-deaths-secret/2015/05/28/9bb15092-0543-11e5-93f4-f24d4af7f97d_story.html), it seems to become harder to maintain every day. As a recent video by VICE News shows, everyone with a computer can determine that it seems very likely that Russian soldiers are present on Ukrainian territory. After all, they themselves, while not wearing official insignia, seem to have posted revealing pictures on Russian social network sites. Web 2.0 indeed does have some strange side effects.

why working conditions in International Organizations are so bad

~ RJ ~ Kommentar hinterlassen
In a brand new article in IOLR, the legal adviser of NATO explains why bad working conditions are necessary for their functioning. Worth read for all those eager to pursue a career in this field:

„the notion of precarious employment within international organizations is inherent in their evolving nature and, therefore, necessary for the survival of international organizations.
[…] We have seen that many international organizations’ employment practices are very similar, and that they often provide only relative, non-permanent employment guarantees. However, these apparently negative practices seem to benefit the overall functioning of these institutions. Nevertheless, the pursuit of precarious employment practices affects one of the core elements of international organizations’ esprit de corps — loyalty. The pernicious effects of weak or non-existent allegiance among international staff members create vulnerabilities for international organizations, which may reach the point that the relevant organization’s constitutional
objectives cannot be met.“

Andrés Muñoz Mosquera, ‚On the Notion of Precarious Employment in International Organizations‘ 11  International Organizations Law Review (2014), 294-317

Liberland and international law

~ RJ ~ Kommentar hinterlassen
on 13 April 2015, Czech activist Vit Jedlicka (sorry for omitting the diacritics) declared a new state – „Liberland“, located betwen Croatia and Serbia. According to the website, it covers an array of seven square kilometres which would make it bigger than the Vatican and Monaco. Its motto is to „to live and let live“ and overall it seems to have a profoundly libertarian background, eg since it explicitly states its need for people who „have respect for private ownership which is untouchable“. The Constitution and its laws are not available yet.

From the perspective of international law, it sounds like a nice example to be included in lectures and/or textbooks. The interesting thing is that Liberland – in contrast to other attempts to found new microstates – like Avalon in Switzerland or the Kingdom of Germany – is not trying to secede from a given territory but take advantage from a Crotian/Serbian border dispute which allegedly makes the territoriy in question terra nullius („no man’s land“) and thus up for grabs. Although the big time of conquering hitherto undiscovered lands has passed long ago, there is some unclaimed territory (another example would be Bir Tawil between Sudan and Egypt). If neither Croatia nor Serbia actually claim the territory of Liberland, it could ultimately remain a somewhat forgotten piece of land and provide ground for yet another social experiment in the creation of unrecognized and largely ignored micronations. At the end of the day, all it takes to seize unclaimed territory is some degree of control (depending on its size) and animus occupandi, which both seem to be present in the case of Liberland. The really interesting question arises from the fact that it is not a state trying to acquire territory but an individual/a small group that does not seem to fulfill the criteria to be called a „people“ in the sense of Jellinek’s three elements of statehood; do the same rules apply mutatis mutandis or could it simply be said that an individual/a small group cannot establish sovereignty on terra nullius – a question that has already arisen in connection with the Principality of Sealand and still not finally settled within academic circles until this very day.
Theoretical questions aside, the experiment suffers from the fact that Croatia exercises control over the territory of Liberland and prevents the establishment of a state proper, which makes this case a rather philosophical one. All those who expected a libertarian paradise for tax evasion and drug use may end up disappointed.

D’Amato, Anarchy, and the purpose of international law

~ RJ ~ Kommentar hinterlassen

In a recent article in the latest American Journal of International Law, Anthony D’Amato examines the structure of international law and claims that its primary purpose is self-preservation, not the regulation of international relations. His characterization of international law along with reference to Schachter’s good old ‚invisible college of international lawyers‘-metaphor may well stir debate. Tom Farer (in a reply in the same issue of the American Journal) for instance already noted D’Amato’s understanding of anarchy as chaos. One may add Kant’s understanding of Anarchy as ‚Law and Freedom without force‘ (see http://en.wikipedia.org/wiki/Anarchy#Kant_on_anarchy). After all, international lawyers in particular are well aware of defending the anarchic, yet nevertheless legal, character of their field (already Jellinek has characterized international law in this manner).

Here is the relevant passage from D’Amato’s article (footnotes omitted):

the general-systems viewpoint here takes an essentialist position in claiming that the rules and processes of international law can be best explained if we start with the selfprotective nature of all aggregative, interconnected entities known as general systems.

International law is not a stack of rules on a library shelf. It is a professional industry, made up of national officials, diplomats and statespersons, international practitioners and scholars, law professors and students, UN officials, judges of international courts and their clerks, professional arbitrators, judges and clerks of bilateral claims commissions, and advocate-members of NGOs, among others—all of whom were well described by the late Oscar Schachter as an invisible college of international lawyers dedicated to a common intellectual enterprise. Because of the time that these persons have devoted to studying and learning international law, they have invested significant human capital in the system’s continued utility and preservation. To be sure, they will often disagree as to whether an alleged rule belongs to the set of accepted rules of international law (especially if it is their job to come out the way that their employers or their governments demand), but even then they have a personal stake in preserving and maintaining the system of international rules. Governments turn to them for advice as to the international legality of a given policy that the government plans to implement—at the very least in order to help predict the reactions of the legally informed international community. These advisers, both official and unofficial, infuse the international legal system with a dynamic sense of purpose and persistence. Thus, to the tens of thousands of persons making up the invisible college around the world, international rules can sometimes seem incorrect but never irrelevant.

The greatest threat to the viability of the international-law system is anarchy. With total anarchy, international law would perish and might be replaced, if peace is restored, by something entirely different (such as a world dictatorship). Thus, when any controversy arises among nations and the relevant rules are in dispute, the international legal system’s bias for self-preservation will tilt toward the rule that offers the greater probability of a peaceful resolution of the controversy and will bend away from the rule that prolongs or escalates it. That is not to say that justice is irrelevant to conflict resolution. But justice does not function in the abstract; rather, it is perceived justice that counts. And most of the time the perceived justice is symbiotic with the resolution that augurs future peace. Arguably, a justly perceived decision, both in domestic and international law, promotes stability. After the temper of a losing side cools down, the just decision may gradually be accepted as the right decision.

Anthony D’Amato, ‚Groundwork for International Law‘ (2014) 108(4) The American Journal of International Law 650, 652-3.