Jus cogens: Recent Developments in International Law

United States & Cyprus Sign Proliferation Security Initiative (PSI) Ship Boarding Agreement

On 25 July 2024 the United States and the Republic of Cyprus signed a bilateral agreement under the auspices of the Proliferation Security Initiative (PSI). The PSI is a response by the United States, announced by President Bush in May 2003, to address "increasingly aggressive efforts by [weapons of mass destruction] proliferators to circumvent existing nonproliferation norms, and to profit from such trade."[1] The PSI's objectives include utilizing "existing national and international legal authorities" while strengthening "these authorities to meet today's WMD proliferation challenges."[2] The PSI is based upon a number of interdiction principles, which include:

• undertaking effective measures for interdicting the transport of WMD and related materials;
• adopting procedures for rapid information exchange;
• strengthening national and international legal authorities and frameworks;
• boarding and searching suspect vessels flying a State's respective flag;
• consenting to the boarding and searching of flag vessels by other States; and
• requiring suspect aircraft in a State's airspace to land for inspection and seize any WMD cargoes.[3]

Entitled as an "Agreement Between the Government of the United States of America and the Government of the Republic of Cyprus Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials By Sea," the Agreement addresses the boarding and searching of flag vessels interdiction principle. The U.S.-Cyprus Agreement is the fifth ship boarding agreement the U.S. has signed under the auspices of the PSI. Similar agreements have been reached with Croatia, Panama, the Marshall Islands, and Liberia.

Specifically, the Agreement provides authority to "Security Force Officials" of either State to board suspect vessels of the other State in international waters after confirmation of the vessel and authorization to board is made by the non-boarding State.[4]. A vessel is determined "suspect" if "sufficiently reliable information forming the basis for the suspicion" exists and is included in the authorization request. This authorization includes the ability to detain the vessels, cargo, and persons on board "if evidence of proliferation is found," which is defined as nuclear, chemical, biological and radiological weapons or their delivery materials.[5] The treaty also stipulates that all uses of force "shall be in strict accordance with the applicable laws and policies of the Party conducting the boarding and with applicable international law."

According to the U.S. Department of State, the five bilateral PSI ship boarding agreements account for more than sixty percent of "the global commercial shipping fleet dead weight tonnage."[6]

[1] U.S. Dep't of State, Bureau of Public Affairs, Combating Proliferation: Proliferation Security Initiative 11 (2003).

[2] Id. See, e.g., Convention on the Physical Protection of Nuclear Material, Feb. 23, 1987, 1456 U.N.T.S. 101 (including recent amendments including nuclear facilities).

[3] Id.

[4] Agreement Between the Government of the United States of America and the Government of the Republic of Cyprus Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials By Sea, July 25, 2005, U.S.-Cyprus, art. 4.

[5] Id at art. 1, 4.

[6] U.S. Dep't of State, The United States and the Republic of Cyprus Proliferation Security Initiative Ship Boarding Agreement, July 2005.

International Criminal Tribunal for the Former Yugoslavia (ICTY): Miroslav Bralo ("Cicko") Pleads Guilty

On Tuesday 19 July 2005, Miroslav Bralo pled guilty to eight counts before the ICTY, Trial Chamber I. The offenses include:

• one count of persecutions on political, racial and religious grounds, a crime against humanity,
• one count of murder, a violation of the laws or customs of war,
• one count of torture or inhuman treatment, a grave breach of the Geneva Conventions,
• one count of torture, a violation of the laws or customs of war,
• one count of outrages upon personal dignity including rape, a violation of the laws or customs of war,
• two counts of unlawful confinement, a grave breach of the Geneva Conventions, 
• one count of inhuman treatment, a grave breach of the Geneva Conventions.[1]

Miroslav Bralo also known as "Cicko", was a member of the 4^th Military Police Battalion of the Croatian Defense Council (HVO), also known as the "Jokers." From January 1993 until mid-July 1993, the HVO  engaged in an armed conflict with Bosnia and Herzegovina government forces. The HVO attacked villages inhabited by Bosnian Muslims in the Lašva River Valley region in central Bosnia and Herzegovina. These attacks resulted in the death and wounding of numerous civilians. Additionally, other civilians were subject to detention, transport, torture, and other physical and mental abuse.

Specifically, the indictment alleges that "on  16 April 1993, Miroslav Bralo participated, with others, in the surprise attack on the village of Ahmici. The purpose and objective of the attack were to ethnically cleanse the village, to kill all the Muslim males of military age, to burn all Muslim residences, and to forcibly expel all the Muslim residents from the village."[2] The indictment also specifically charges Miroslav Bralo with the confinement and repeated rape and torture of a Bosnian Muslim woman and also alleges that  Bralo "individually and in concert with others did use and participated in the using of civilians as "human shields" in forcing Bosnian Muslim civilians to dig trenches on the front lines to protect HVO soldiers from gun fire by ABiH snipers".[3]

A tentative date of 10 October 2005 for the Sentencing Hearing has been suggested by Trial Chamber I of the ICTY.

[1] ICTY, "Miroslav Bralo Pleads Guilty," CT/MOW/990e (19 July 2024)  <http://www.un.org/icty/latest/index.htm>.

[2] Id.

[3] Id.

 

The International Court of Justice (ICJ) Decides the Case Concerning the Frontier Dispute (Benin/Niger)

On Tuesday, 12 July 2005, the International Court of Justice (ICJ) announced its decision in the Frontier Dispute (Benin/Niger) case. This long-standing dispute between the West African States of the Republic of Benin (formerly known as the Republic of Dahomey) and the Republic of Niger concerns the entire territorial boundary between to the two States. The ICJ received the case, which the parties submitted jointly, on 3 May 2002. The ICJ's principal task in the case was to determine the definitive delimitation of the whole boundary between Benin and Niger. Sketch-Map No.1, from the ICJ's decision, illustrates the location of both Benin and Niger in West Africa (click on image for detailed view).[1]

I. Background: Factual and Procedural History

Since their independence from French colonial rule, Benin and Niger have disputed the entire course of their shared boundary. The disputed boundary is divided into two sectors: the Mekrou River sector and the Niger River sector. In the Niger River sector, Benin argues the boundary is the left bank of the river, keeping all navigable waters within the territory of Benin. Niger contends, however, that the true boundary is the middle line of the Niger River. In the Mekrou River sector, Niger contends the river and certain land beyond are the territory of Niger. Benin argues the Mekrou River's median line is the true boundary. Sketch-Map No. 2 provides a general view of the boundary region in question (click on image for detailed view).[2] Additionally, Niger and Benin hold disputed claims over a number of islands along both the Mekrou River and Niger River, especially the island of Lété (covering approximately 40 sq km with 2,000 inhabitants).[3]

Historically, the frontier dispute between Benin and Niger dates back to the "accession to independence of the territories that were formerly part of French West Africa...." Both Benin and Niger became independent States in August 1960.  A long unresolved matter, two Dahomey-Niger joint commissions met in 1961 and 1962, seeking a friendly settlement of their dispute. A focal point of the Parties disagreement focused on the island of Lété, and both parties agreed in 1965 that nationals of both States could inhabit the island until resolution of the frontier dispute. Further attempts to resolve the dispute occurred from 1995-2000, including six meetings of a joint commission created in April 1994. These efforts also failed to produce a negotiated solution. This commission, however, did suggest bringing "the dispute before the International Court of Justice by Special Agreement."[4]

A Special Agreement between Benin and Niger to jointly-submit the matter to a special chamber of the ICJ was signed on 15 June 2024 and entered into force 11 April 2002. On 3 May 2024 the parties filed the Agreement with the Registry of the ICJ. The ICJ retained jurisdiction over the case under article 26 of the Statute of the Court, which permits the formation of a special chamber of the Court for particular cases.[5] The Special Agreement asked the Court to determine "the course of the whole boundary between Benin and Niger and to specify to which State each of the islands in the River Niger sector belongs, and in particular the island of Lété."[6]

II. Applicable International Law

The Court, and the Special Agreement between Benin and Niger, recognized that the principle of uti possidetis juris should be applied in resolving the boundary dispute.[7] The "essence of the principle lies in its primary aim of securing respect for the territorial boundaries at the moment when independence is achieved." In Burkina Faso v. Mali, the Court noted that uti possidetis "freezes the territorial title" and strives to present a "photograph of the territory" at "the critical date" of independence.[8] To uphold the principle of uti possidetis juris in the present dispute, the ICJ recognized that it must determine "the boundary that was inherited from the French administration" at the moment of independence. This boundary was determined by French colonial law, known as "doit d'outre-mer". The Court recognized, however, that when reference is made to domestic law, like French colonial law, such law does not apply "in itself (as if there were a sort of continuum juris, a legal relay between such law and international law), but only as one factual element among others, or as evidence indicative of . . . the 'colonial heritage.'"[9] Additionally, the Court recognized that when applying the principle of uti possidetis juris, post-colonial effectivités "should not necessarily be excluded."[10] Effectivités meaning the conduct of Benin or Niger, respectively, as proof of effective exercise of territorial sovereignty.

III. The ICJ's Analysis: Resolving the Frontier Dispute

Before reaching the specific task of boundary creation, the Court provides a detailed colonial history of both Benin and Niger. Additionally, relevant colonial documents and maps are presented by the Court.[11]

The Court then considers the boundary in the Niger River sector and then specifies "to which Party each of the islands in the river belongs."[12] The Court first considers evidence presented by both Benin and Niger, which attempts to establish the boundary on the basis of colonial documents and decrees. After evaluating the evidence, the Court "concludes that neither of the Parties has succeeded in providing evidence of title on the basis of regulative or administrative acts during the colonial period." To determine the boundary, the Court then examines any evidence of effectivités during the colonial period.[13] On the basis of the exercise of administrative authority during the colonial period, the Court determines "the boundary between Benin and Niger follows the main navigable channel of the River Niger as it existed at the dates of independence."[14] From this decision, the Court presents a list of 154 geographic coordinates, based on latitude and longitude, providing the exact location of the boundary. Using this boundary-line, the Court determines the ownership of the islands within the Niger River (the island of Lété is deemed the territory of Niger).[15]

Next, the ICJ chamber considers the course of the boundary in the Mekrou River sector. After evaluating several colonial decrees, the Court finds a 1927 decree defined the colonial boundary at the date of independence to be the Mekrou River. Based on this finding, and the fact the Mekrou River is not navigable, the Court concludes the median line of the Mekrou River to be the boundary between Benin and Niger.[16]

III. Significance of the Frontier Dispute (Benin/Niger) Case

The Frontier Dispute (Benin/Niger) represents the ICJ's ability to resolve territorial disputes between States, utilizing the special jurisdiction provisions provided by the Statute of the Court. This case also upholds the principle of uti possidetis juris, especially when the boundaries of former colonial territories are being considered.   

[1]. Frontier Dispute (Benin v. Niger), 2005 I.C.J. 19 (July 12) (opinion available online at ICJ homepage).

[2]. Id. at 20.

[3]. Id. at 18.

[4]. Id. at 21.

[5]. Statute of the International Court of Justice, June 26, 1945, art. 26, 59 Stat. 1031.

[6]. Frontier Dispute (Benin v. Niger), 2005 I.C.J. at 17.

[7]. Id. at 21-22 (citing Frontier Dispute (Burkina Faso/Republic of Mali), 1986 I.C.J. 565-66, 586-87).

[8]. Id.

[9]. Id. at 23.

[10]. Id.

[11]. Frontier Dispute (Benin v. Niger), 2005 I.C.J. at 25-32.

[12]. Id. at 32.

[13]. Id. at 39-45.

[14]. Id. at 45.

[15]. Id. at 47-52.

[16]. Id. at 59-60.

Amendments to the Convention on the Physical Protection of Nuclear Material

On Friday, 8 July 2005, the Conference to Consider and Adopt Proposed Amendments to the Convention on the Physical Protection of Nuclear Material (the "CPPNM") agreed "to fundamental changes that will substantially strengthen the [CPPNM]." [1]  The amendments update and modernize the CPPNM, recognizing the dynamic nature the security and protection of nuclear material used for peaceful purposes presents to Contracting States.

I. Background: Creation of the CPPNM & the Need for Amendment

The CPPNM, opened for signature on 3 March 1980, obliges Contracting States to protect nuclear materials used for peaceful purposes during international transport.[2] The CPPNM developed at a time when the primary concern for the protection of nuclear material concentrated on the transport of nuclear material. States viewed transport of nuclear material, especially international transport, as the highest risk activity related to nuclear material and developed the CPPNM to create international obligations and enforcement mechanisms for States Parties. The CPPNM contains "provisions related to nuclear material used for peaceful purposes while in domestic use, storage and transport. The Convention establishes measures related to the prevention, detection and punishment of offenses relating to nuclear material."[3] Presently, there are 112 States Parties to the CPPNM and 45 Signatories.[4] The International Atomic Energy Agency (the IAEA) is the depositary of the CPPNM, charged with administering the CPPNM's status and any declarations or reservations.

The CPPNM's drafters, however, did not address the security and protection of nuclear facilities. The CPPNM only applies to transport of nuclear materials used for peaceful purposes. It does not affect nor present obligations regarding the security and protection of nuclear facilities, including nuclear power plants. To fill the void the CPPNM left in regards to the security and protection of nuclear facilities, the IAEA developed policy guidance regarding the physical protection of nuclear material and nuclear facilities.[5] Besides the obligations of the CPNNM, the IAEA guidance also addresses the physical protection of nuclear material against unauthorized removal and sabotage.[6] The IAEA guidance, however, does not obligate or create enforcement mechanisms under international law beyond the CPPNM's restrictions on transport of nuclear materials.

To address the CPPNM's deficiencies, especially those concerning the security of nuclear facilities from the threats of unauthorized removal and sabotage, the July 2005 Conference was called "to adopt amendments to the Convention designed to strengthen its existing provisions and expand its scope to cover, among other points, the physical protection of nuclear material used for peaceful purposes, in domestic use, storage and transport; and the physical protection of nuclear material and peaceful nuclear facilities against sabotage" and unauthorized removal.[7]    

II. Treaty Amendments Under International Law

Treaty amendments are governed by the Vienna Convention on the Law of Treaties.[8] Generally, "a treaty may be amended by agreement between the parties."[9] Article 40 of the the Vienna Convention prescribes that all contracting States must be notified and possess the right to participate in the negotiation and creation of proposed amendments.[10] Article 40 also instructs that "the [treaty's] amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement." [11] The manner and procedure for amendment is usually specified in the original treaty. Accordingly, article 20 of the CPPNM provides for the amending procedure, which resulted in the July 2005 Conference. [12]

III. States Parties Obligations Under the Amended CPPNM

The amendments to the CPPNM will create legal obligations and enforcement mechanisms for contracting States beyond the transport of nuclear material. The amendments include provisions to bring the unauthorized removal and sabotage of nuclear material within the CPPNM's framework.[13] These amendments update the CPPNM and provide legal force to the previously discussed IAEA guidance. IAEA Director General Mohamed ElBaradei commented "this new and stronger treaty is an important step towards greater nuclear security by combating, preventing, and ultimately punishing those who would engage in nuclear theft, sabotage or even terrorism. It demonstrates that there is indeed a global commitment to remedy weaknesses in our nuclear security regime."[14] The amendments "will also provide for expanded cooperation between and among States regarding rapid measures to locate and recover stolen or smuggled nuclear material, mitigate any radiological consequences of sabotage, and prevent and combat related offences."[15]

IV. Ratification of the Amended CPPNM, the New CPPNMNF

The amendments will not enter into force "until the thirtieth day after the date which two thirds of the [112] States Parties have deposited their instruments of ratification, acceptance or approval with the [IAEA]."[16] Upon ratification, the CPPNM will be renamed the Convention on the Physical Protection of Nuclear Material and Nuclear Facilities.

Footnotes

[1] IAEA, States Agree on Stronger Physical Protection Regime, ¶1 (July 8, 2024) <http://www.iaea.org/NewsCenter/PressReleases/2005/prn200503.html>.

[2] Convention on the Physical Protection of Nuclear Material, Feb. 23, 1987, 1456 U.N.T.S. 101 [hereinafter CPPNM].

[3] IAEA, International Conventions & Agreements: Convention on the Physical Protection of Nuclear Material, ¶2 (visited July 9, 2024) <http://www.iaea.org/Publications/Documents/Conventions/cppn.html>. See CPPNM, supra note 2, arts. 7-10.

[4] IAEA, Status: Convention on the Physical Protection of Nuclear Material, (May 11, 2024) <http://www.iaea.org/Publications/Documents/Conventions/cppn_status.pdf>.

[5] See The Physical Protection of Nuclear Material and Nuclear Facilities, IAEA Doc. INFCIRC/225/Rev.4.

[6] See id.

[7] IAEA, supra note 3, at ¶3.

[8] Vienna Convention on the Law of Treaties, Jan. 27, 1980, 1155 U.N.T.S. 331 [hereinafter Vienna Convention].

[9] Id. at art. 39.

[10] Id. at art. 40(2).

[11] Id. at art. 40(4).

[12] CPPNM, supra note 2, at art. 20(1).

[13] IAEA, Conference to Consider and Adopt Proposed Amendments to the Convention on the Physical Protection of Nuclear Material: The Basic Proposal, IAEA Doc. CPPNM/AC/L.1/1 (April 28, 2024).

[14] IAEA, supra note 1, at ¶2.

[15] Id. at ¶3.

[16] CPPNM, supra note 2, at art. 20(2).

Welcome

Welcome to Jus cogens, a weblog dedicated to recent developments in the field of public international law. Specifically, Jus cogens aims to provide concise, informed background and analysis in an unbiased, objective, timely, and scholarly manner. Sources include the opinions of international tribunals, international conventions,  international organizations, international custom, and the judicial decisions and teachings of qualified publicists.

Traditional legal publications, including law reviews and journals, undertake lengthy, time-consuming editorial reviews prior to publishing recent developments. Such "recent" developments are often weeks, if not months, old by the time of publication. Jus cogens seeks to remedy this inefficiency.
   
A corollary purpose of jus cogens is to provide a convenient, centralized location of online public international law resources for scholars, attorneys, students, and others. Permanent and dynamic resources include:

• International Courts & Tribunals
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About the Editor: I am an attorney admitted to practice in the State of New York with a specialized interest in public international law. I am a graduate of both Washington University School of Law and Princeton University.