Winning the Revolution

(Libyan celebrate in Martyr's Square)

Merry Christmas to all. 

And in Libya, happy Independence Day, being celebrated for the first time since the Gaddafi revolution of 1 September 1969 - under Gaddafi, only his revolution was deemed worthy of celebrating.

But what is also interesting today is that the Libyan Revolution - as well as the other revolutions of the "Arab Spring" - continue long after the end of the previous regime. And arguably, the continuing work on constitutions and accountability mechanisms is going to be the thing that secures the gains already made through the emergence of civil society. This is why the call today for increased accountability from the Libyan National Transitional Council by Lawyers for Justice in Libya is both welcome and timely: civil society does need to play its role in ensuring there is accountability.

So, happy birthday Libya, and hearty applause to LFJL for ensuring that the peace is won as well.

Happy Birthday, America!

Happy July 4th to all!

But what does US Independence Day have to tell us about conceptions of Statehood? (Strange question to interrupt hot dogs, ice cream and watermelon with, I appreciate, but this is an international law blog.) Oddly, this is a more interesting question than it may at first seem.

So why July 4th? On July 2nd, 1776, the Second Continental Congress meeting in Philadelphia voted to approve a Resolution of Independence drafted by Richard Henry Lee of Virginia, and was explained in a polemic drafted by John Adams of Massachusetts, Roger Sherman of Connecticut, Robert Livingston of New York, Benjamin Franklin of Pennsylvania, and Thomas Jefferson of Virginia - the Committee of Five. Signed by John Hancock as President of the Second Continental Congress, this was approved on July 4th, and released on July 5th, and is known as the Dunlap Broadside after the printer John Dunlap and the size of paper he used - though the double entendre of a legal broadside is accurate, too.

(A different kind of broadside - USS Constitution defeats HMS Guerriere in 1812)

So what was the effect of the Declaration of Independence? At one level, it presumably demonstrated that the Continental Congress was serious in its intent to lead a revolution against British rule; but this was already underway - the Battles of Lexington and Concord had occurred in 1775. Moreover, the Revolutionary War would go on (and on, and on) until the final surrender of Cornwallis's army at Yorktown in October 1781 (though this marked what today may be called "the end of major combat operations"), with de jure independence being achieved in the 1783 Treaty of Paris, with ratification instruments exchanged in Paris on May 12, 1784. 

So, July 4th has rivals as "Independence Day". It could be the de facto independence after Cornwallis's defeat on October 19th, or the de jure independence on May 12th. 

 (Charles Cornwallis, a loser despite his immaculate tailoring)

Why does this matter?

At one level, it clearly doesn't: everyone knows that the 4th of July is US Independence Day, with parades, fireworks and family time: and a national holiday certainly isn't going to get moved to May 12th because of this blog post. But at another, it suggests that the US celebrates its' own Statehood from the Declarations of Independence - which presumably means that if a State were to meet the 1933 Montevideo Convention Criteria which enshrines the Declarative Theory's four criteria for statehood into international law, and were to declare independence, then the US would grant recognition. 

For example, this could mean that Somaliland and Palestine would be recognised by the US without further ado, and that Taiwan need only to formally declare independence to achieve US recognition. Clearly this isn't going to happen, not least as it would be far too disruptive. But it's interesting to ponder none the less. 

So, Happy 4th everyone!

Libya - a case for R2P?

(F3s finale over Libya? Sadly, probably not. Fuel-to-Noise. Go!)

There's been some talk about setting up a No-Fly Zone (NFZ) over Libya in the last few days. Whether this is a good idea militarily is a debate for others to have, but the legal position is clear enough: if the Security Council passes a Chapter VII resolution under Article 41 or Article 42, then it is legal to use force to enforce it.

If the Russians veto a draft resolution permitting an NFZ, then the questions around humanitarian intervention and R2P will resurface. As I blogged last week, there's a serious discussion to be had, but in my view there is an humanitarian exception and an NFZ is a decent way to start protecting the Libyan people from the depredations of the Gaddafi regime's death-throws. It is unlikely to be enough - Libya is vast and the number of aircraft that would be required to have standing patrols over all of the airfields under Gaddafi loyalist command, along with the SEAD (Suppression of Enemy Air Defences) support to ensure that surface to air missiles stayed on their launch rails, would be immense.

(More heroic F3 turning and burning into the sunset....)

But it would be a start.

99% vote for a Referendum. No, really!

 
In possibly a world first, it seems that a 99% majority in a referendum could be correct, rather than merely symbolic of massive fraud symptomatic of the worst authoritarian regimes. To no-one's surprise, it was the margin of South Sudan's vote for independence. I was a little surprised that 1% of South Sudanese voted for continued union with the North.

So, South Sudan will become the 198th State in the summer. Let's hope that this can be accomplished peacefully.

Can I get posted to Juba? Please?

You say you want a Revolution? Well you know, we all want to change the world.

I'm the President. I love me. No, no, really, I do.

(With apologies to The Beatles).

Tunisia.

At the end of last year, it was not the most obvious place for an Arab revolution. Yemen has an active tribal and Islamist insurgency, Syria was slightly more oppressed in the 2010 Freedom House index, and Egypt was heading for another illegitimate election in which President Mubarak's amusingly ironically entitled "National Democratic Party" would save everyone the trouble of having to decide between too many qualified candidates.

The self-immolation of Muhammad Bouazizi in the main square of Sidi Bouzid last December 17th was a visceral cri-de-coeur, but in even a moderately effective police state should have posed no major threat to an entrenched regime. So why did it lead to a snowball of protest that led to the President and his cronies fleeing by jet without anywhere to go - until Saudi Arabia accepted them after France demurred?

More importantly, will this herald a wave of liberalisation across the Middle East, and should western policy evolve - and if so, how?

It's easy to be wise after the event. Yes, President Ben-Ali's wife's Trabelsi clan was "intensely disliked" according to a July 2009 US Embassy cable leaked to wikileaks , yes it was madly corrupt, with few opportunities for young graduates like the unfortunate Mr. Bouazizi, yes it was politically oppressive with lots of Presidential portraits around and about (see picture above). But in these things it was hardly alone, and compared with the autocracy of Morocco or the two decades of war / near war next door in Algeria, Tunisia was a bastion of stability in an unstable region.

And that's the point. The west, led by France, supported a kleptocratic regime largely, it seems, for fear of something worse. But in so doing, we connived in blocking the legitimate aspirations of the Tunisian people to have a say in their governance, whilst the West (rightly) pushed other despotic regimes towards democracy and human rights, with sanctions if necessary (e.g. Zimbabwe). In short, we abandoned the people to their Government to promote short-term stability. The historians amongst you may detect certain similarities to western policy in Persia in the late 1970s.

Zhou Enlai, Mao's first Premier of the People's Republic famously opined that "It is too soon to tell" the impact of the French Revolution, and so it is here. But the challenge to the West is simple: do we repeat the mistakes of Iran and support oppressive regimes because they happen to be vaguely pro-Western, driving our natural allies in the educated and middle classes into the arms of other - often virulently anti-Western Islamist - opposition? Personally, I'd be much happier if we were more overt in helping our allies democratise now before something potentially much worse takes over. Let's start with Egypt - and be prepared to take aid off the table if the NDP aren't willing to have a free and fair election.

That, and free and fair elections in Tunisia, would be a fitting epitaph for Mr. Bouazizi. May he rest in peace.