CIAO DATE: 06/2011
Volume: 3, Issue: 1
June 2011
Editorial (PDF)
Keynote Speech: Resources of Conflict – Conflicts over Resources (PDF)
Marie-Claire Cordonier Segger
This text was held as the keynote speech during the conference “Resources of Conflict – Conflicts over Resources” (7-9 October 2010) in Göttingen, Germany.
Cindy Daase
The (illegal) exploitation and (bad) management of high value resources like timber, diamonds, gold, minerals and oil constitute key-factors for the inflammation, continuation and termination of numerous intra-state conflicts. Since the 1990s these conflicts have been increasingly settled by the conclusion of comprehensive peace agreements between the conflicted state and belligerent non-state parties. At the example of the Lomé, Accra and Ouagadougou Agreement, which were negotiated to terminate the conflicts in Sierra Leone, Liberia and Côte d’Ivoire, the paper describes and analyzes whether and how these agreements addressed the redistribution of conflict-resources during the peace process. In the course of this documentation, the paper finds a strong involvement of the UN Security Council when it comes to the redistribution of resources and the implementation of all three agreements that goes beyond addressing an immediate threat to peace and security. Focusing on this involvement of the Security Council to exert a strong pull towards the compliance of the parties with these agreements, the paper will discuss the legal nature of the example peace agreements and of the specific obligations concerning the redistribution of resources. The paper finds that, under certain circumstances, internationalized comprehensive peace agreements, with a strong endorsement and involvement of the Security Council, can create effective legal obligations for the parties with respect to the redistribution and treatment of resources during the transformation from conflict to peace.
The Falkland Islands and the UK v. Argentina Oil Dispute: Which Legal Regime? (PDF)
Alice Ruzza
Following Argentina’s withdrawal from the 1995 Joint Declaration concluded with the UK for the common exploration and exploitation of hydrocarbons in the Falklands, the sovereignty dispute over the Islands has recently re-emerged as an economic ‘struggle’ for access to the North Falklands Basin’s oil deposits. The paper analyzes the states’ pending sovereignty dispute and their present claims, from the perspective of the exploitation of the Islands’ natural resources. The lawfulness of uncoupling the treatment of title to territory and to natural resources, particularly in an area where sovereignty is disputed has been examined in the present paper. By considering the UN practice on the Falklands’ case, it is argued that a separate treatment is not per se unlawful, provided that all the parties having a legitimate sovereign claim over the territory are involved. The Joint Declaration is employed as a model to provide evidence in this regard. In addition, the paper discusses the unilateral conduct of the parties as a possible alternative to a cooperative agreement. As the UK is currently acting unilaterally with regard to the access to the oil deposits in the Islands, the implications of its conduct are also reviewed.
Conflicts over Protection of Marine Living Resources: The 'Volga Case' Revisited (PDF)
Saiful Karim
Non-traditional maritime security concerns have become more important than ever in the post-Cold War era. Naval forces of most developed countries are more concerned about these threats than conventional war. One of the main maritime security issues for many countries in the world is illegal, unreported and unregulated (IUU) fishing in the marine area. With these burgeoning issues comes the potential for a large number of disputes involving international law. In early 2002, a long-line fishing vessel under a Russian flag - the Volga, was detained by Australian authorities a few hundred meters outside the Exclusive Economic Zone of Australia’s Heard and McDonald Islands in the Southern Ocean. The vessel was reportedly engaged in illegal fishing. This incident gave birth to litigation in international and Australian courts. Apart from these cases, Russia also announced separate litigation against Australia for violation of Articles 111 and 87 of the United Nations Convention on the Law of the Sea (UNCLOS). Considering the outcome of these cases, this article critically examines the characteristics of litigation as a strategy for pacific settlement of disputes over marine living resources. Using the Volga Case as an example, this article explores some issues related to the judicial settlement of disputes over marine living resources. This article demonstrates that the legal certainty of winning a case may not be the only factor influencing the strategy for settlement of an international dispute.
Christiana Ochoa, Patrick J. Keenan
The focus of this paper is the connection between conflict and commercial activity. In particular, it focuses on the ongoing conflict in the Eastern Democratic Republic of Congo (DRC) that is funded, in large part, by the sale of conflict commodities – minerals, metals, and petroleum – that fund violent groups at their source and then enters legitimate markets and products around the world. Recently, attention has turned to how to regulate conflict commerce as a tool for divesting from violent conflict. In the United States, for example, the recently adopted Dodd-Frank Wall Street Reform and Consumer Protection Act includes a provision addressing conflict minerals originating from this region. The violent and secretive nature of conflict minerals transactions makes crafting effective regulation and policing strategies challenging. As a result the Dodd-Frank Act, like other domestic and international efforts, is designed in large part to discover, gather and disseminate information about the nature and scale of conflict commodities emanating from the DRC. This paper analyzes this legislation while also discussing a number of other current conflict commerce governance efforts. It observes the difficulty of regulating in the context of conflict and corruption and analyses the use of regulation as a tool for information-extraction, information-forcing and information-dissemination as opposed to its use as a tool for directly proscribing undesirable behavior.
Incentives and Survival in Violent Conflicts (PDF)
Moshik Lavie, Christophe Muller
This paper analytically investigates the incentive scheme of perpetrators of violent conflicts. It provides a rational equilibrium framework to elicit how monetary incentives and survival considerations shape a combatant’s decision to participate in a conflict. In the model, a leader decides to award soldiers monetary incentives. Civilians finance the militia via donations and soldiers decide on the actual fighting and indulge in looting. We explore the scheduled decision-making that takes place on the path toward a violent conflict and study the principal–agent relationship that exists between the leader and the militia. In addition, we analyze the effect of several internal factors (productivity and survival risk) and external factors (relative economic resources, opponents’ military strength) on the intensity of the conflict. The model shows that soldiers fighting decisions are set by personal mortality risk and the level of identification with the cause of war. In addition, our results link between monetary incentives and participation in fighting and demonstrate a substitution effect of looting and donations as monetary incentives.
Enhancing Compliance with International Law by Armed Non-State Actors (PDF)
Annyssa Bellal, Stuart Casey-Maslen
Enhancing compliance with international norms by armed non-state actors is central to efforts to improve the protection of civilians in armed conflict. Limited engagement with such actors, as well as lack of clarity as to the precise nature and extent of the international legal regimes that are applicable to them, constitute significant barriers to achieving better compliance. In this article the authors argue for international human rights law to be more widely seen as imposing direct obligations upon armed non-state actors and for counter-terrorism legislation not to be interpreted so as to preclude engagement on positive respect for humanitarian norms. What is needed is greater engagement with armed non-State actors, not less.
Regulation of Private Military Companies (PDF)
Alexander Kees
The increasing use of private military companies by states in armed conflict raises questions regarding the regulation of those non-state actors. However, even though the privatization of core state functions might be an emerging phenomenon with respect to its extent and quality, there is no legal vacuum for the activities of private military contractors. According to international humanitarian law, states must ensure respect for the ius in bello and enforce applicable international law also with respect to private contractor personnel if they are charged with functions governed by international law. Against this background, the challenge for future regulation is on the national and administrative level. States must intensify their efforts to implement existing standards.
Alice Gadler
The fight against insurgents in Afghanistan and Iraq has led the U.S. and its allies to devote growing attention and resources to counterinsurgency strategies, stability operations and civil-military operations. Humanitarian and development assistance have acquired an important role in military strategies. However, the activities carried out by armed forces in the field of humanitarian assistance in Afghanistan and Iraq have been criticized for blurring the distinction between civilian and military actors and thus increasing the risk of being targeted for humanitarians and civilians. The article analyzes the conduct of U.S. armed forces in Afghanistan and Iraq and the challenges it has posed to humanitarian actors. It then examines U.S. military doctrines and manuals and argues that their most recent versions have increasingly taken into account the needs of humanitarian actors and the principles of humanitarian action, but reasons for concern remain. The engagement of the military in humanitarian assistance has not been definitely limited. In addition, humanitarians should be careful in their relationships with the armed forces in the field of information-sharing.
Stormy-Annika Mildner, Gitta Lauster
In the light of rising competition, scarce natural resources are increasingly perceived as a potential national security risk. Hence, governments are increasingly intervening in primary commodity markets to secure domestic supply at lower prices, for instance, by restricting exports through tariffs and quotas. While limiting exports may be justified in certain cases such as temporary shortages of food supply, they are often a second-best policy tool to address domestic market failures, risking international trade distortions. Some import-dependent countries have therefore lobbied for an update of WTO regulations to curtail the use of export restrictions; others have turned to preferential trade agreements (PTAs) to achieve stricter disciplines. In this paper, the following questions are addressed: What are the current WTO rules regulating export restrictions on natural resources, and what are their limitations? Are PTAs better equipped to prevent trade distortions through export restrictions? To answer these questions, we confine our analysis mostly to Free Trade Agreements (FTAs), not considering the multitude of one-sided preferential agreements.
Anastasia Telesetsky
In the last decade of globalization, States in the Middle East, East Asia, Europe, and North America have looked towards Africa and Southeast Asia for opportunities to lease for 30-50 years large tracts of arable land for production of commodity crops and biofuels in order to meet the needs of home markets. Facing their own governance challenges, States in Africa and Southeast Asia have leased land to private foreign investors without requiring any environmental review or mitigation of the proposed land leases. This paper argues that in food insecure states the recent flurry of land leasing activity to foreign agribusiness is likely to lead to unintended long term consequences for the ecology in land-leasing States by depleting the already fragile environment through monocropping, chemical pesticide and fertilizer applications, and large scale irrigation. This paper argues that international investment law may provide foreign investors with legal protection if land leasing States in the future decide to regulate the leases in a manner that discriminates against large agribusiness. The current proposals for self-regulatory voluntary codes of conduct do not provide sufficient oversight over the leasing process to protect the public’s interest in a healthy and productive environment against foreign investors who have under the current lease structure no incentive to improve the land that they are leasing. The creation of an United Nations based ombudsman to provide legal and technical oversight and support for States making long-term leases has greater potential than a voluntary code for ensuring a balanced negotiation among the interests of host State governments for investment, investors for arable land, and the public for long-term sustainability.
Bjørn-Oliver Magsig
The peaceful management of the world’s freshwater resources is one of the most challenging tasks the international community is facing. While ‘water war’ is a catchphrase mainly used by the media, one cannot overstate the disruptive force water disputes have on all aspects of socio-economic development and the environment. Furthermore, the accelerating global water crisis draws a dark picture in which the future may look nothing like the present. With rising demand and declining availability of key natural resources, the world might soon face a ‘perfect storm’ of food, energy and water shortages. A simultaneous occurrence of these crises would seriously threaten global stability, and thus endanger the very foundation of international security. The aim of this paper is to contribute to progressive legal discourse by asking how the notion of ‘regional common concern’ can serve as a normative foundation of water security, in order to help overcoming the state-centrism in orthodox international water law. The refinement of international (water) law is vital; should it play a more prominent role in addressing the challenges of global water insecurity.
Dereje Zeleke Mekonnen
The threat of water-related conflicts is comparatively more real and serious in the Middle East and North Africa hydrographic region where the Nile is found. Ominous predictions about water being the next casus belli in the region abound. There are many conflict determinants in the Nile basin which lend much credence to the predictions and the basin’s proneness to conflict is quite evident. The unprecedented positive rapport brought about by the launching of the Nile Basin Initiative (NBI) and the enormous hope and optimism evoked by its lofty Shared Vision explain the unprecedented serenity and cooperative atmosphere the basin has witnessed over the past decade. The decade-long effort to work out and agree on an inclusive legal and institutional framework for the basin has, due to the cunning interpolation of the treacherous, non-legal concept of ‘water security’, ended up in failure., The subsequent shift to and endorsement of benefit sharing as an alternative, simple and cure-all solution to the Nile waters question has further dimmed the prospect for the realization of the Shared Vision which now sounds more like a pipe dream than a realizable vision. Whether these adverse developments would finally pave the way for the ominous predictions to come to pass is as much unlikely as it is perplexing. It will be argued, in this paper, that the likelihood of violent conflicts over the Nile waters is an unlikely scenario, the more likely turn of events being further continuation of the iniquitous status quo.
Information Warfare and Civilian Populations: How the Law of War Addresses a Fear of the Unknown (PDF)
Lucian Dervan
Imagine a civilian communications system is being temporarily relied upon by an opposing military force for vital operations. If one launches a computer network attack against the communications system, the operation may disable the opposing force’s ability to function adequately and, as a result, prompt their surrender. The alternative course of action is to launch a traditional kinetic weapons attack in the hopes of inflicting enough casualties on the troops to induce surrender. Given these options, the law of war would encourage the utilization of the computer network attack because it would result in less unnecessary suffering. But is the same true if we are unsure of the collateral consequences of the computer network attack on a large civilian population that also relies on this communications system? For instance, because civilians use the same communications system to gather critical information, disabling the system might result in rioting, civil disorder, serious injuries, and deaths. Further, civilians may be unable to call for help, seek out medical assistance, or locate emergency response centers. Given these unknown yet potentially severe collateral consequences to civilians, it becomes less clear that a proportionality analysis under the law of war would favor the computer network attack over the traditional kinetic operation. In this article, Professor Lucian E. Dervan examines the application of the law of war to information operations and analyses the role of the Geneva Convention’s utilitarian goals in determining the validity of computer network attacks against dual-use civilian objectives.
Eszter Kirs
Information is a fundamental resource in post-conflict societies. However, information-sharing may lead to both advantages and disadvantages. The main focus of the present paper is the flow of information and knowledge from the International Criminal Tribunal for the Former Yugoslavia (ICTY) to the domestic judicial system of Bosnia and Herzegovina. Following a brief introduction of the dynamics of the changing relationship of the Tribunal and the Bosnian judiciary, the paper aims to outline the positive achievements and the practical barriers of the international intervention into the management of war crime cases in Bosnia and Herzegovina. The paper introduces the practical problems that came forth with the introduction of the adversarial procedure in the domestic judicial system, by which measure international intervention might have gone too far resulting also in negative consequences with regard to the management of domestic war crime trials.
Freya Baetens, Rumiana Yotova
In 2009, the Permanent Court of Arbitration administered a unique case: the Abyei Arbitration between the Government of Sudan and the Sudan People’s Liberation Movement/Army. This case is unique in several aspects: first, it is an example of intra-state dispute settlement in a conflict zone rich in natural resources, second, it was conducted under a fast-track procedure, and third, it was fully transparent, with all documents and full webcast of the proceedings still available on the PCA website. Currently there is a large number of outstanding intra-state disputes, not limited to Africa, so this paper assesses why the Parties in the Abyei Arbitration chose arbitration in the first place and whether this model could be successfully applied to other similar disputes.
Juan Guillermo Sandoval Coustasse, Emily Sweeney-Samuelson
Conflicts over resources and the consequences of utilizing those resources can ignite social and political demonstrations, especially when the conflict is over a shared resource. Solving those conflicts requires both an institution and a procedure that are not just binding but also legitimate in front of the constituencies. This process must achieve transparency and technical adequacy. The recent Pulp Mills case involved concerns over the environmental consequences of installing two pulp mills on the Uruguayan shore of the river that separates Argentina from Uruguay. A controversial point of the decision, as highlighted by the separate opinions of various judges, is how the court established the facts of the case; in particular, the role of experts. The separate writings raised fundamental questions as to the fitness, capacity and even will of the court to decide a controversy based on complex evidence. The criticism is logical and the risks evident: The court might not be properly equipped to solve disputes that require deeper technical analysis. However, should it refrain from facing the challenges, the authoritative status of the Court may be threatened. As a result, a disruption in the evolution of international law could occur. A major goal of the ICJ is to achieve uniformity in international law, and the interplay of several specialized tribunals, for instance, without inter-court binding precedent, could result in a variety of decisions on the same principles, affecting the development of substantive law. When applied to international conflicts over resources, an effort towards transparency and legitimacy is being demanded by constituencies and governments. Conflicts over shared resources, as in the Pulp Mills case, or over actions of a state affecting resources located in another, can affect a state’s economic viability and its legacy to future generations. Transparency in the handling of evidence can help achieve legitimacy for the Court as a proper organism for these types of disputes, and for governments when facing enforcement of a decision in front of their constituencies.
From Riches to Rags – the Paradox of Plenty and its Linkage to Violent Conflict (PDF)
Pelin Ekmen
The article addresses the economic phenomenon of the so called Dutch Disease, also known as the Paradox of Plenty, as faced by countries rich in natural resources. Rendering a rough definition of this occurrence, the article continues to dwell on the linkage between violent conflict and illicit resource trade in the Democratic Republic of Congo (DRC). Using the example of coltan, which is a rare metallic ore essential to the power-storing parts of consumer electronic products, the article explores why the DRC has so far failed to benefit from its large deposits in this highly demanded resource. While in the case of illicit diamond trade the establishment of a certificate of origin scheme has already increased awareness for the matter, a similar certification scheme for coltan is not in place yet. The article thus reviews past experiences made with the Kimberly Certification Scheme against blood diamonds, to find whether its regulatory structures could be applied to coltan trade as well. Identifying the role of law and the Security Council within this debate, the author finally argues in favor of a model akin to the scheme for coltan, which obligates participant states to pass implementing legislation while operating on the basis of voluntariness. However the article also concludes that a certification scheme alone will not be sufficient to combat the resource curse and thus offers a brief insight into possible assisting mechanisms.
Resources of Conflict - Conflicts over Resources (PDF)
The GoJIL Special Issue contains articles, which are based on the conference "Resources of Conflict - Conflicts over Resources", held in Göttingen from 7 to 9 October 2010.