— Kenneth Watkin, “Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict” (OUP 2016)
— Tom Dannenbaum, “Why Have We Criminalized Aggressive War?,” 126 Yale Law Journal (2017)
On October 1, the people of Catalonia voted to separate from Spain in an independence referendum which has been declared illegal by Spain. According to numerous news reports, Spanish police and government forces attempted to interfere with the referendum and engaged in tactics which some have criticized as repressive and “shocking.” The European Union (EU) however failed to condemn the Spanish government and instead insisted that the referendum was an internal matter for Spain and that the Spanish Constitution and rule of law should be respected.
The Catalan referendum brings back memories of the Kosovo situation in 2008. Serbian President, Aleksandar Vucic, has criticized the EU for its “hypocrisy” because of the EU’s seemingly different stance vis-a-vis the recent Catalan independence vote and vis-a-vis Kosovo’s secession from Serbia in 2008. Vucic stated, after meeting with the Greek President, “How come you’ve [EU] declared Kosovo’s secession from Serbia legal, violating international law and the foundations of European law.” In other words, the EU had essentially “blessed” the Kosovar secession from Serbia while it has, in this instance, supported Spain and failed to recognize that Catalan “right” to an independence referendum. Are the situations in Catalonia and Kosovo drastically different? What does international law say about the subject-matter of secessions?
First, the situations in Kosovo and Catalonia may be different because their respective mother states are different. Kosovo had been a part of Serbia, which, while under the rule of Slobodan Milosevic, had engaged in brutal tactics to suppress an independence-seeking rebellion brewing within Kosovo. Thus, the international community got involved – through the 1999 NATO-led air strikes and subsequently through various NATO and EU-led administrative, security-based, and civil missions. When Kosovo declared independence in 2008, United States Secretary of State Condoleezza Rice described Kosovo as “sui generis,” in part because of the international community’s strong involvement in this region. The Catalan had expressed their desire for independence and had held other independence referenda in the past, but the Spanish government had never engaged in human rights violations in Catalonia and the situation has remained peaceful. The international community itself has never been involved in Catalonia and it may be that factually, Catalonia remains an internal matter. If Catalonia is an internal matter, then, like in Scotland and in Quebec, any potential secession would need to be worked out through peaceful negotiations and a constitutional framework. If Spain says no, then Catalonia would not have the right to unilaterally secede. This is the factual argument, not based in international law. This leads me to my second point – what does international law have to say about the Catalan secession?
Second, international law is silent on secession. Almost all international law scholars would agree that international law does not entail a “right” to secession, and that secession may be tolerated in international law in rare instances, like in Kosovo, or in Bangladesh. We know from the 2010 International Court of Justice Advisory Opinion on Kosovo that international law does not specifically prohibit unilateral declarations of independence, and that international law only condemns declarations of independence procured through an illegal use of force. We also know that international law contains the right to self-determination, but, as I recently wrote in the context of the Kurdish independence referendum, it is unclear whether the right to self-determination ever applies in the non-decolonization paradigm, and whether this right can ever lead to remedial secession. It is unclear that the Catalan can invoke the right to self-determination in order to justify secession from Spain – the right to self-determination in this instance may entail simply a right to autonomy within the larger Spanish state. The Kurds may have a much stronger self-determination-remedial secession argument than the Catalan, as the former may be able to demonstrate much more easily that their mother state is not representative of their interests. Spain is a democratic nation which respects human rights, and the international law-recognized right to self-determination (leading to remedial secession) has never been invoked in this type of context before. Thus, international law, at best, begrudgingly tolerates secession in extreme and rare instances, where the mother state is not a democratic nation which respects human rights. The Catalan do not have a sound international law-based argument, and despite Spanish interference with the Catalan independence referendum, the Catalan cannot claim a particular legal right to secede.
Finally, how does one reconcile the seemingly different results (as of now) in Kosovo, Catalonia, and Kurdistan? Kosovo unilaterally declared independence from Serbia in 2008 and within a short period of time, it was recognized as a new state by many in the international community (although not by Spain – understandably so). Interestingly, almost no states among those supporting Kosovo advanced international law-based rationales for the Kosovar secession from Serbia; instead, such states continued to distinguish Kosovo as a unique situation, sui generis, a special case which should somehow not create any type of precedent in international law. Catalonia and Kurdistan have held independence referenda which have not been supported by almost any states in the international community. Many states have referred to these referenda as illegal because contrary to the wishes of their respective mother states, or as internal matters, or as not representative of any particular “rights” in international law. Accepting the argument that international law is silent on secession and does not regulate secession, it would appear that secessions are matters of domestic law. If this is the case, it appears that the international community may accept such a role of domestic law in cases where the mother state is a democratic nation or an emerging democracy whose sovereignty is deemed worth-while. This manner of reconciling different referendum results is not based in international law, but it rather reflects geo-political interests of other powerful states.
In my capacity as an academic and representative of Intlawgrrls, I had the pleasure of attending and speaking at the 11th International Humanitarian Law Dialogs in Chautauqua, New York from August 27th-29th. The Dialogs’ theme for this year was “Changing Times: New Opportunities For International Justice and Accountability.” As usual, the Dialogs’ schedule was filled with many interesting sessions on fascinating topics of international humanitarian law and international criminal law. What was particularly impressive this year was the presence of so many distinguished female voices. In this post, I will briefly highlight panels and lectures with such distinguished female participants.
The Dialogs began on August 27th with a screening of the documentary “Never Again: Forging a Convention for Crimes Against Humanity.” As many of our readers will surely know, the documentary was conceived at the initiative of our colleague, Professor Leila Sadat from Washington University School of Law, who has been working for the past nine years on drafting and promoting a Convention for Crimes Against Humanity. In addition to this session, Professor Sadat also moderated a book release and discussion on August 29th, regarding a forthcoming book (“The Founders,” to be published later this year by Cambridge University Press; Professor Sadat is one of this book’s editors and a chapter contributor). The recipient of this year’s Joshua Heintz Award for Humanitarian Achievement was Zainab Bangura, a Sierra Leonian politician and activist who recently served as the United Nations Special Representative on Sexual Violence in Conflict. Professor Valerie Oosterveld from the University of Western Ontario Faculty of Law participated as a panelist in a Roundtable discussion on August 28th on “Changing Times: New Opportunities for International Justice and Accountability.” Professor Oosterveld was also a panelist on August 29th in a porch session entitled “Victim-Driven Approaches to International Criminal Justice” (more on this session below). Professor Margaret deGuzman from Temple University School of Law participated on August 29th in a porch session entitled “Hybrid Courts.” Professor Jennifer Trahan of the New York University Center for Global Affairs delivered a breakfast presentation on August 29th entitled “The Future of International Justice.” She also participated in a porch session on August 29th, on “Victim-Driven Approaches to International Criminal Justice.”
International Criminal Court Judge and Baroness Christine Van den Wyngaert delivered the Katherine B. Fite Lecture on August 28th (more on the lecture below), and yours truly delivered the “Year in Review” Lecture on August 29th, and co-moderated the August 29th porch session on “Victim-Driven Approaches to International Criminal Justice.” In addition, Dean Aviva Abramovsky of SUNY Buffalo Law School accepted the Heintz Award on behalf of Zainab Bangura (who unfortunately could not attend), and Andrea Gittelman of the United States Holocaust Memorial Museum co-moderated the “Victim-Driven Approaches” porch session on August 29th with yours truly. Susan Murphy serves as President and Chief Executive Officer of the Robert H. Jackson Center, which is one of the Dialogs’ sponsors.
Intlawgrrls had two particular roles at the Dialogs. First, Intlawgrrls has traditionally sponsored the Katerine B. Fite Lecture, which was delivered this year by Judge and Baroness Christine Van den Wingaert (I had the honor of introducing her). Katherine B. Fite was an American lawyer who graduated from Yale Law School in 1930, when she was one of only three women to graduate from law school in the United States! She later worked at the State Department and with Justice Jackson, while he served as Chief Prosecutor during the Nuremberg trials. Judge Van den Wyngaert delivered an excellent lecture in which she described her own path to becoming an International Criminal Court judge. She remains an inspiration to so many of us. Second, Intlawgrrls co-sponsored, with the Holocaust Memorial Museum, the above-mentioned porch session on “Victim-Driven Approaches to International Criminal Justice.” The session was co-moderated by yours truly, as representative of Intlawgrrls, and Andrea Gittelman, as representative of the Holocaust Memorial Museum (Ben Ferencz Initiative). Distinguished panelists included Professor Jennifer Trahan, Professor Valerie Oosterveld, and Professor Megan Fairlie (Florida International University School of Law).
In sum, in light of so many distinguished female voices at Chautauqua, I am certain that Katherine B. Fite would have been proud.
International Law Weekend 2017, a conference jointly organized by the International Law Students’ Association and the American Branch of the International Law Association will take place in New York City from October 19-21. The following is an announcement regarding a call for submissions from new voices/scholars:
ABILA invites the submission of abstracts from emerging scholars and practitioners in the field of international law. We will select several abstracts for presentation at ILW 2017 as part of a panel of new professionals. The abstracts may be based upon ongoing work. While all submissions are welcome, preference will be given to papers not already published. Eligibility is restricted to applicants working in the field of international law for five years or less.
More information about new voices submissions due August 8 is available here.
ASIL-Midwest Works-in-Progress Conference
Call for Submissions
ASIL-Midwest, an interest group of the American Society of International Law (ASIL) is co-sponsoring its fourth scholarly works-in-progress conference at the Cleveland-Marshall College of Law in Cleveland, Ohio on September 15-16, 2017. The goal is to create a friendly, open conversation about works in progress and to foster a Midwestern United States international law community. To that end, the workshop will include both full drafts and early works in progress.
Those interested in presenting at the conference should send a 500-word abstract to ASIL-Midwest Co-Chair Cindy Buys (email@example.com) by Friday, July 28, 2017. Please also include a sentence about the stage the paper is expected to be in by September (e.g., reasonably complete draft, early work in progress, etc.). Papers may address any International Law topics, and this Call for Submissions is open to everyone in the international legal community. Preference will be given to ASIL members who are also members of the ASIL-Midwest Interest Group. Paper presenters will be asked to circulate their drafts (or a summary of the project if it’s early stage) to workshop attendees no later than September 1, 2017.
Those interested in serving as a commentator for a paper should also send an email to the Co-Chair Cindy Buys by July 28 (firstname.lastname@example.org). Commentators will be asked to prepare five to eight minutes of comments on one or more of the papers. Those interested in presenting are also encouraged to comment on the other papers and should indicate whether they are willing to serve as commentators as well.
ASIL members and Cleveland-Marshall College of Law faculty, staff, and students may attend for free. Participants who are not ASIL members or Cleveland-Marshall College of Law affiliates will be required to pay a $50 registration fee (includes workshop and some meals) for the conference. Some meals will be provided, but participants are responsible for their own travel and hotel expenses. More details regarding transportation, hotels and other logistics will be provided shortly.
For any questions about papers and presentations, please contact ASIL-Midwest Interest Group Co-Chairs, Cindy Buys (email@example.com) or Neha Jain (firstname.lastname@example.org). For questions about conference logistics, contact immediate past-Chair, Milena Sterio (email@example.com).
The deadline for panel proposals for International Law Weekend 2017 has been extended until May 15. International Law Weekend 2017 will take place from October 19-21 in New York City; this conference is jointly sponsored and organized by the International Law Students’ Association and the American Branch of the International Law Association. More information about the conference, its theme, and procedures about panel submissions is available here.
International Law Weekend 2017 will take place from October 19-21 in New York City, at the Association of the Bar of New York City and at Fordham Law School. This conference is jointly organized by the American Branch of the International Law Association and the International Law Students’ Association. Panel proposals are due on April 30th, and the conference theme and call for papers are available here.