Posts by Daniel Fombonne
The legality of a no-fly zone over Libya
As Colonel Gaddafi’s troops continue a brutal offensive to re-claim rebel-held towns, the debate over whether to impose a no-fly zone continues to animate governments, international organizations and civil society. What now constitutes the Libyan army* is using heavy aerial bombardment to advance on rebel positions and thereby strengthening their changes of emerging victorious, although such heavy-handed tactic dramatically increasing civilian casualties. Meanwhile, the UN Security Council is discussing the possibility of a no-fly zone over Libya, after a mounting pressure for it from certain Western governments and the recent approval of a UN-mandated zone from the Arab League. As of March 14th, no consensus had emerged between the Security Council powers, although the possibility of a non-approved no-fly zone remained. While a UN resolution would provide the legal basis for such action (under Chapter VII of the UN Charter), China and Russia for now seem reluctant to allow this ‘interference’ into state sovereignty. This blog addresses the possibility that the UN does not pass a resolution and what subsequent actions by powerful state actors or organizations like NATO might still be considered under international law.
As a brief background, the debate over the non-fly zone has been going for nearly three weeks, since it became clear that Gaddafi would not follow other North African dictators in resigning power, and instead was determined to unleash his full military might…
BY Daniel Fombonne
FILED UNDER
Constitutional Law
Human Rights
Humanitarian
Public International Law
The ICC v. Sudanese Stability: How the results of the South Sudan Referendum might jeopardize the possibility of an international criminal jurisdiction
With the results of the referendum in South Sudan producing an overwhelming vote for independence, the prospect of Omar Hassan al-Bashir being tried at the International Criminal Court (ICC) have become increasingly slim. The indictment and warrant issued by chief prosecutor Luis Moreno-Ocampo in March 2009 (and a subsequent one filed in June 2010) was always going to be hard to enforce; Al-Bashir continued to travel unimpeded to neighboring African countries, some signatories to the Rome Convention with an accompanying obligation to arrest and extradite the President of Sudan for the crimes committed under his watch in Darfur. The international community seemed to forget the outstanding warrant as the situation in Darfur improved, turning even more of a blind eye in the run-up to this month’s referendum in the south of the country. The US and its allies were so desperate for the Southern referendum to occur peacefully that it eased its position towards the Sudanese government. The imminent creation of the 193rd state might further hinder attempts to enforce the warrant, with the distinct possibility that al-Bashir’s indictment gets withdrawn. At the very least, the Khartoum’s government peaceful approval of the south’s secession should ensure that no country will dare jeopardize this momentous occasion by enforcing Moreno-Ocampo’s attempt at justice for the thousands of victims in Darfur. The ICC would indeed then suffer a fatal blow to its…
Madrid 1 – Barcelona 0 : Spain’s Constitutional Court stops Catalonian Nationalist Ambitions
The last few decades of European integration have challenged and re-conceptualized the traditional role of nation-states on the European continent. The end of totalitarian dictatorship coupled with the emergence of democracy spurred secessionist movements in various European countries, notably Spain, the former Yugoslavia and other East European countries where large minorities were stuck on what they saw as the wrong side of the post-Soviet state borders. Spain is a particularly interesting case because of the severe repression of Basque and Catalan nationalists during the Franco regime, but also due to the popularity of the EU, particularly in autonomous regions that see the supra-national entity as an alternative to the unpopular nation-state.
This article focuses on the Catalonian plight for greater autonomy and self-government and recent rebukes to the nationalist goal of full independence from Spain. On June 28th 2010, the Spanish Constitutional Court ruled on the Catalan Statute that had tried to define the scope of self-government in the region. The Court had deliberated for four years after a challenge by the main opposition People’s Party (PP) and several Spanish regions to a reform proposal of the Statute of Autonomy passed in 2005 by the Catalan Parliament and ratified by Catalans in a referendum in June 2006. Controversy erupted this summer when the Court invalidated fourteen articles. The Court went on to provide…
Full Disclosure: Should Corporations Tell us Where it Hurts?
The United States’ Financial Accounting Standards Board (FASB) recently put forward a strange and controversial set of rules requiring firms to publish detailed information on their current and, more importantly, future and potential legal liabilities. The July draft proposal was actually an update to an initial July 2008 draft that revised the required disclosure of corporations’ loss contingencies under Topic 150. The Proposal would come into effect as of December 15, 2010, and its purpose is to address the concerns of investors who do not feel properly informed about the status of corporations that they may wish to invest in. Current and future legal liabilities obviously impact the chance, size and timing of any incoming or outgoing cash flows for corporations, and these new requirements increase transparency and information for current and potential investors.
While corporations being sued were already required to report any potential liabilities under existing laws, the new set of rules goes even further by requiring disclosure of any cash set aside for any ‘reasonably possible’ settlements in any particular area (but not in a particular case). This requirement is singularly problematic for companies as any change in this amount appears as a recognition of an increase in the corporation’s vulnerability. The new standards also demand that companies disclose the possibility – even if remote – of expensive litigation, and the amount of insurance bought to cover…
The EU’s Trade Policy: One Sole Voice or Twenty-Seven harmonies?
The recent round of negotiations between the European Union (EU) and Canada over a free trade deal takes for granted an important underlying assumption. How is the EU able to negotiate a trade deal when it still comprises – at least for now – of 27 individual member nation-states?
The European integration project is a hodgepodge of various Treaties, Directives, legislative and more informal rules that confuses even the most advanced connoisseurs of European law. The Lisbon Treaty that finally entered into force on December 1, 2009 – after a long, drawn-out negotiation and ratification process – simplified the existing institutional and governance structures of the European Union. Without dissecting the complicated evolution of the EU since the first agreement was signed in 1951, this article aims to clarify the major changes that Lisbon brought about in the trade position of the European Union in the international legal sphere.
A key change implemented in the Lisbon treaty was the amalgamation of the three existing ‘pillars’ that governed the legal structures under one legal personality, the EU or European Union. Lisbon now gives the EU its own legal personality in public international law, a power that was attributed before to the European Community (the now-defunct first pillar of the EU) only.
Member States and the European polity have long arm-wrestled over who controls the various policy areas that govern European individuals,…
