Geir Ulfstein

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Terrorism and the Use of Force

Social Science Research Network, Oct 3, 2011

There exist today a number of conventions aimed at combating terrorism. These treat acts of terro... more There exist today a number of conventions aimed at combating terrorism. These treat acts of terrorism as criminal acts. However, the events of 11 September 2001 introduced a new dimension into the debate on the use of force in addressing the problem of terrorism. This article discusses whether the UN Security Council has given its approval for the USA's use of force in the wake of 11 September 2001 and whether this use of force can be justified under the right of selfdefence. The article's conclusion is that the Security Council has not given its approval. Nevertheless, the USA may invoke the right of self-defence on the basis of the Taliban's support for the terrorists. However, it is important to remember that acts of terrorism ought as far as possible to be addressed through criminal prosecution. Furthermore, any use of force ought to take place under the control of the UN. And we must be on our guard against any erosion of the prohibition against the use of force in international law.

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The European Court of Human Rights and national courts: a constitutional relationship?*

Routledge eBooks, Feb 26, 2016

Marine Management in Disputed Areas: The Case of the Barents Sea. By Robin Churchill and Geir Ulfstein. London and New York: Routledge, 1992. ix + 182pp. 37.50

British Yearbook of International Law, 1993

Preface 1. Introduction 2. Application Of The Svalbard Treaty To Maritime Areas. 3. Boundary Deli... more

Remarks by Geir Ulfstein

Proceedings of the Annual Meeting (American Society of International Law), 2014

because they can advance or undermine tribunal or ICC effectiveness through providing or withhold... more because they can advance or undermine tribunal or ICC effectiveness through providing or withholding much-needed cooperation in the pursuit and prosecution of suspects. Therefore, for the chief prosecutor, skillfully marketing the case that the tribunal or ICC is indeed effective and worthy of international investment constitutes an important route toward attaining concrete external support needed to actually make these legal institutions effective. Part of a chief prosecutor’s marketing strategy includes shifting the blame for institutional ineffectiveness to those political actors undermining the fight against impunity. Examples of such a strategy are drawn from the chief prosecutors’ high-profile speeches to the Security Council. In a number of these speeches, the chief prosecutors attempt to shame both defiant states and the Security Council itself, whose passivity enables war crimes suspects to remain fugitives. The apparent aim of casting blame in this forum goes beyond shifting responsibility for institutional ineffectiveness. A larger purpose for the chief prosecutors is to galvanize political actors to fulfill their legal responsibility to provide cooperation and thus ensure these institutions’ effectiveness. The campaign to market the contributions of the ad hoc tribunals and the ICC is often undertaken in a highly contentious environment. In this environment, targeted states whose leaders are under investigation or indictment do not remain passive. On the contrary, targeted state leaders, as in Sudan and Kenya, seek to knock the ICC off its moral pedestal and diminish the Court’s good work. These targeted states do so by trying to shame the ICC and the ad hoc tribunals in the court of international public opinion. By doing so, these states demonstrate that international tribunals do not hold a monopoly on the strategy of shaming. For targeted states, a common line of attack is to allege tribunal or ICC failure and even betrayal of their mission to deliver justice impartially. We see this line of attack repeatedly leveled at the ICC Chief Prosecutor by President al-Bashir of Sudan, President Kenyatta of Kenya, and their African Union allies. More specifically, these African leaders have sought to undermine the ICC’s moral authority by alleging that the Court is a politicized body driven by anti-African bias. This has real consequences for the ICC’s already uphill battle to persuade regional and international actors for concrete support with arrests, witness protection, and other forms of state cooperation crucial for institutional effectiveness. The outcome of the ICC’s ongoing rhetorical battles with these African states will go a long way in determining whether the cases against the Sudanese and Kenyan presidents ever come to trial. Moreover, the outcome of these high-profile cases will in turn have a great bearing on the ICCs effectiveness—both in its courtrooms in The Hague and in the court of regional and international public opinion.

Preface and Acknowledgements

Cambridge University Press eBooks, Jun 5, 2013

Constituting Europe: Bibliography

A Framework for Evaluating the Performance of International Courts and Tribunals

The Performance of International Courts and Tribunals

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Transparency in International Law, edited by Andrea Bianchi and Anne Peters [Cambridge University Press, Cambridge, 2013, 642pp, ISBN 978-1-107-02138-9, £90.00 (h/bk)]

International and Comparative Law Quarterly, 2014

of treaties concluded by the illegal regimes and the wide-ranging validation of domestic legislat... more of treaties concluded by the illegal regimes and the wide-ranging validation of domestic legislation adopted by such regimes. However, it remains unclear whether these patterns also coalesce into legal principles that can sufficiently guide future practice, eg in case the Crimea—illegally annexed by the Russian Federation—ever returns to Ukraine. Nonetheless, Yaël Ronen should not be blamed for that. Ultimately, transitions from illegal regimes are so fraught by political sensitivities that the integrity of the law inevitably takes a back seat.

International framework for environmental decision-making

Edward Elgar Publishing eBooks, Nov 12, 2021

The Svalbard Treaty and research: Comment to Pedersen and Molenaar

The Polar Journal, Dec 30, 2021

Norway has been very clear about its determination to uphold sovereignty over Svalbard, based on ... more Norway has been very clear about its determination to uphold sovereignty over Svalbard, based on the 1920 Svalbard Treaty. Thus, any challenges or attempts to undermine Norwegian sovereignty should be taken seriously. Torbjørn Pedersen discusses in his article ‘The Politics of Research Presence in Svalbard’ in this issue to what extent some of the foreign scientific research on Svalbard should be seen as national posturing, threatening Norwegian sovereignty. However, it is important to distinguish between intentions and effects of any national posturing. As Pedersen notes, the relevant activities must be interpreted: are they based on scientific or other relevant needs, or are meant to challenge Norwegian sovereign right to regulate activities on Svalbard. Only the latter forms of activities should be subject to concern. Secondly, the different measures taken by other states should be individually assessed. For example, the name of a research station would hardly in itself be a challenge, whereas the Chinese request for an international decision-making process in the adoption of a research strategy for NyÅlesund may give reason to worry. Thirdly, a distinction should be made between internal national communications and external international demands. Only the latter has the ability to be interpreted as a challenge. Finally, there is reason to emphasise that no state has an interest in an unregulated power struggle. Instead, they have a common interest in acknowledging Norway as a regulatory Hobbesian Leviathan, securing a common peaceful order. I will not discuss the policy aspects further, but – like Erik Molenaar – concentrate on the legal aspects, i.e. the interpretation of the Svalbard Treaty. Molenaar submits that article 5(2) of the Svalbard Treaty contains three ‘implicit assumptions or understandings:

Making Treaties Work: Notes on the contributors

International Courts and Tribunals: Rise and Reactions

Social Science Research Network, May 15, 2017

International courts and tribunals (ICs) are increasing in number and importance. They address an... more International courts and tribunals (ICs) are increasing in number and importance. They address an expanding variety of issues, ranging from the law of the sea to international criminal law. The ICs are typically of a compulsory character, be it de jure or de facto: states may in practice have little choice whether to accept their jurisdiction if they want to benefit from the relevant regime. They no longer only address disputes among states; several of them are open to non-state actors. And they have functions beyond dispute settlement: they develop or make law, make specialized regimes work through their interpretations, and contribute to compliance with international obligations. In short: international relations are increasingly judicialized. The present book maps and assesses this development-and reactions thereto, because the trends have met with mixed responses.

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How Should the European Court of Human Rights Respond to Criticism?

Oxford University Press eBooks, Aug 1, 2019

This chapter is a comment on Angelika Nußberger’s chapter on the rule of human rights law in Euro... more This chapter is a comment on Angelika Nußberger’s chapter on the rule of human rights law in Europe in an ever more hostile environment. It argues that the Court, in its effective interpretation, should avoid interfering in issues that are not of such a gravity to merit international supervision. In its evolutive interpretation, the Court should also clarify its use of a European consensus and abandon its unfettered discretion in using international legal instruments for this purpose. This could alleviate uneasiness with respect to the ECtHR as an activist Court. Moreover, the Court should treat states equally with respect to benefitting from the margin of appreciation. However, it is also essential for the Court to ensure that deference to domestic decision-makers does not undermine effective implementation of the ECHR.

Counter-Terrorism Measures: The Need for National and International Review

Social Science Research Network, Oct 3, 2011

... See also John Cerone, The Military Commissions Act of 2006: Examining the Relationship betwee... more

Enhancing Climate Compliance – What are the Lessons to Learn from Environmental Regimes and the EU?

The Relationship between Constitutionalism and Pluralism

Social Science Research Network, 2012

International constitutionalism comes in many different forms. A distinction may be made between ... more International constitutionalism comes in many different forms. A distinction may be made between those claiming that we today have an international constitution and others arguing that what is of importance is to apply constitutional thinking to the international legal system. The article discusses whether we have an international constitution and concludes with a negative answer. This means that we still must operate with different international legal regimes and with the distinction between the international and national legal systems, i.e. aspects of pluralism. However, the challenge is how to secure constitutional guarantees in a pluralist legal order.

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Treaty Bodies and Regimes

Social Science Research Network, 2012

Treaties will generally set out the substantive rights and obligations of the treaty parties. But... more Treaties will generally set out the substantive rights and obligations of the treaty parties. But treaties are also used to establish institutions for international cooperation. Such institutions may take many forms such as formal international organizations (IOs) or international courts. But treaties may also set up organs that are neither IOs nor international courts in the traditional sense. This paper deals with such ‘treaty bodies’.

Reguleringsproblemer i fiskevernsonen ved Svalbard

Lov og rett, Aug 1, 1987

Interim Report of the ILA Study Group on the Content and Evolution of the Rules of Interpretation

Social Science Research Network, Sep 1, 2018

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The European Court of Human Rights and the Norwegian Supreme Court – Independence and Democratic Control

Social Science Research Network, Nov 19, 2013

The internationalization of law adds new issues to the classical topic of how and when judicial r... more The internationalization of law adds new issues to the classical topic of how and when judicial review may be legitimate. We discuss review of national law on the basis of the European Convention on Human Rights (ECHR) by the European Court of Human Rights (ECtHR) and by the Norwegian Supreme Court. We are concerned both with the possible democratic legitimacy of such review, and other grounds for legitimacy. We finally point to some implications of this internationalization of law for public perceptions of the judges' functions in society and for their independence-and some implications for the Norwegian selection of judges to the Supreme Court and the ECtHR.

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