Material on Climate Change

As I mentioned in class when we were examining the international law on the environment, a good though now slightly dated book on global warming and climate change is Tim Flannery, The Weather Makers: How Man is Changing the Climate and what it Means for Life on Earth (2005). Also good, and slightly dated, is Al Gore's movie An Inconvenient Truth. While some details in the movie have been questioned or refuted, it remains a good presentation of the overarching arguments. The evidence has only become stronger since the mid-2000s when both this book and movie were published, and the scientific consensus on the issue of man-induced global warming is now considerably stronger than it was then.
 

Developments in the Syrian Conflict

As we discussed in class, the conflict in Syria is continuing to intensify, and several recent developments will have the effect of changing the analysis of how a number of different international law principles would apply in the circumstances. Among these developments are the evolution of a more cohesive and unified opposition, which in mid-November was recognized by France as the legitimate representative of the people of Syria. This was followed by formal recognition by the U.K., and then something less that formal recognition by the E.U. as a whole. Meanwhile the fighting has continued to intensify. The U.S. has been unable to prevent the flow of weapons to the Syrian regime via Iraq, and the Obama administration is said to be weighing more direct support for the opposition forces. At what point would such support become lawful under international law? Would direct intervention be lawful under the principles of the use of force regime? Under what circumstances, if at all?

Non-Member Observer State Status for Palestinian Authority

As we discussed in class, the U.N. General Assembly voted last Thursday on the issue of granting the Palestinian Authority non-member observer state status. As expected, the world voted overwhelmingly in favor of the resolution, in the end with over two-thirds of the membership voting "yes". An overall analysis of the vote can be found here (and video from CNN here, and the BBC here).  Only nine countries voted "no", of which only the U.S., Canada, and Israel were major western countries. Some of the possible ramifications of the new status, including access to the ICC, are discussed here. On Friday, in a move opposed by the U.S., Israel announced plans to proceed with building new settlements in Eastern Jerusalem, which was seen as both a response to the vote, and as making any two state solution more difficult - you can read about those issues here, and here. The settlements are generally viewed as being in violation of international law.

Presentation Batting Order

Presentations next week will be conducted in the following order:

Tuesday:
 1) Jared, 2) Jordan, 3) Nhu, 4) Aaron, 5) Matt, 6) Liz, 7) Christina, 8) India, 9) Marissa;

Thursday: 
10) Cate, 11) Megan, 12) Sara, 13) Jaci, 14) Kallie, 15) Denise.

UNFCCC - COP 18 in Doha

Further to our discussion this week of international environmental law, and in particular the UN Framework Convention for Climate Change and the Kyoto Protocol, you should take a look at the proceedings of the 18th COP, which is under way this month in Doha.

Readings - Environmental Law

In preparation for our examination of international environmental law next week, you should read Chapter 18, Sections 1-3 (pp. 1486-1511).

Israeli Strikes in Gaza

As I am sure you must have already heard, Israel today launched intense air-strikes in Gaza, in which more than 10 people have so far been killed, including children. As part of the operation, Israel conducted a targeted killing of one of most senior officials of Hamas. The operations were said to be a response to a recent increase in rocket fire from Gaza into civilian populated areas of Southern Israel. Several hundred rockets were fired in the last week, causing several injuries to civilians. Egypt has recalled its ambassador from Israel and has called upon the Arab League to take action, and has also requested that the issue be taken up by the UN Security Council. There are fears that Israel is planning to mount a more sustained military operation as it did in Operation Cast Lead in 2009, in which more than 1,500 Palestinians were killed and significant portions of Gaza's infrastructure was destroyed.

How would you analyze the situation in terms of the doctrine of self-defense we studied over the last week? Does the rocket fire, much of it conducted by extremist groups operating in Gaza but not directly under the control of Hamas, constitute an armed attack against Israel, triggering the right of self-defense? If so, how would you analyze the necessity of the Israeli operations, and at what point would you suggest that the principle of proportionality is being violated? How would you measure that? Be sure to monitor events as they unfold with these questions in mind.

Goldsmith Testimony at the Iraq Inquiry on Anticipatory Self-Defense

Further to our discussion in class this week, please take a few minutes to watch the testimony of Lord Goldsmith before the Iraq Inquiry, the British public inquiry into the legality of the invasion of Iraq. I particularly would like you to listen to the testimony between minutes 14:00-17:30, which is his discussion of the difference between anticipatory and what he calls preemptive (i.e. preventative) self-defense. You may be interested to listen to far more than that.

You may be interested to read further on the other advice Goldsmith provided to the Prime Minister prior to the official Memo we have studied, in the form of notes in which Goldsmith indicated that he thought any invasion without a further resolution would be unlawful. More on the dispute here.

Definitions of Aggression

As we take up the question of the definition of aggression today, for those interested in reading more about the issue, there is a good article on the subject at EJIL: Talk! on the definition the purposes of the Rome Statute of the ICC, which was decided upon at the international conference at Kampala last year. As discussed in the blog post, the new definition and associated "understandings" raise many interesting issues involving treaty interpretation.

The Kampala definition itself is as follows:For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

You may also want to look at the full text of UN General Assembly Resolutions 2626 (Declaration on Friendly Relations), and 3314 (Definition of Aggression), that were discussed in class and only excerpted in the text.

Final Readings on Use of Force

Continuing our examination of use of force in Chapter 15, you should focus your reading on the following sections:

Continuing in Section 1 (C),
(6)(a) Schachter piece, and notes;
    (b) the Schachter piece on preemptive use of force;
    (d) self-defense against non-state actors;
Section 2
Intro and (A);
(B) (focus on Schachter piece)
(C)
Section 3
(A) (this ties into the debate on Iraq)

In addition, for the debate on the invasion of Iraq next week, in addition to the discussion in the text, please review the Memo from the Attorney General of the U.K. on the subject, as well as U.N. Security Council Resolutions 678, 687, and 1441, all of which can be downloaded from the links here.

For those who may be interested in reading another ICJ decision that analyzes the issues of self-defense, a highlighted and redacted copy of the ICJ's judgment in the Oil Platforms Case (Iran v. U.S.A.), can be downloaded here. Should you want to put the redacted portion into context, remember that you can download summaries of the judgments at the ICJ website.

You may also want to look at the full text of UN General Assembly Resolutions 2626 (Declaration on Friendly Relations), and 3314 (Definition of Aggression), which we will discuss this week.

Recent Developments in the GWOT

Last week some a couple of interesting developments in the so-called "global war on terror". The first was the announcement on the Lawfare blog that the U.N. Special Rapporteur for Human Rights and Counter-terrorism had suggested that certain drone strikes in Pakistan may have constituted war crimes, and that he was commencing an special investigation within the procedures of the Human Rights Council.

A second development of interest, the U.K. Supreme Court handed down a decision last week in the case Secretary of State for Foreign and Commenwealth Affairs v. Rahmatullah, finding that the U.S. had violated international law in transporting a detainee from Iraq to Bagram in Afghanistan for indefinite detention. The Court explicitly held that the interpretation of Article 49 of the Fourth Geneva Convention by Jack Goldsmith, then the Director of the Office of Legal Council, in his OLC memo providing the rational for the transportation, was implausible and incorrect. The Opinio Juris post on the judgment provides and excerpt of the judgment on the interpretation issue - consider it in light of what you have learned about treaty interpretation.

Political Prisons in China

Christina Hansen writes:

I came across an NPR story this morning that seemed pertinent to our class discussion of human rights in International Law. China has "hundreds - at least hundreds" of black jails where critics of local government officials are secretly detained to quiet dissent. The Chinese government denies their existence, but in the story, a 42-year-old Chinese woman who has been detained more than 10 times leads the reporter directly to one of these sites.

Much like the exercise we worked on in Thursday's class, this story raises many human rights concerns in my mind. The red flags here include arbitrary arrest/detention, the silencing of dissent through fear and intimidation, and the lack of redress and/or remedies for citizens whose rights have been violated by the government.

Readings - Use of Force

Next week we will begin our examination of the Use of Force under International Law. On Tuesday we will begin by looking at the basic principles and their history, with a focus on the modern U.N. system, in preparation for which you should read from the beginning of Chapter 15 up to p.1166. Thursday we will take up the case of Nicaragua v. U.S.A., and consider issues relating to the doctrine of self-defense, for which you should read up to the end of Section 1, on p. 1192.

Derogation from Human Rights Obligations

In the Loveless case which we examine this week, which was an early case considering the latitude for states to derogate from rights obligations during times of national emergency, when the life of the nation is threatened, the Court was quite deferential to the state's interests. In thinking about this, you might be interested in looking at how the House of Lords more recently considered the issue of derogation from rights due to threats to the life of the nation, in A(F.C.) v. the Home Secretary [2004].

The case (you can find the full judgment here) involved the "certification" of the applicants under the Anti-Terrorism, Crime and Security Act, 2001, which permitted the government to detain persons so certified for an indefinite period. The government of the U.K. argued that the law constituted a permitted derogation from its obligations under the European Convention on Human Rights.

As part of the decision, Lord Hoffman considered what "the life of the nation" meant in Art. 15 of the Convention, and wrote as follows (continued below the fold):

The Power of Compound Interest

Further to our discussion of damages and costs in litigation, and the difference between compound and simple interest, here is a link to a spreadsheet that illustrates the power of compound interest. It includes the formulas you can use to calculate straight-forward compound interest.

Important to note is that an investment of $15,000 in an account earning compound interest, calculated and paid monthly, at a rate of 6% per annum, will earn $31,653.07 more in interest, than an account earning simple interest at the same rate over the same period.

Compound interest is even more powerful when the principal is increasing with each period. So, if you took $2 each week (the amount you might be tempted to spend on lottery tickets), and invested it in an account earning 6% per annum compounded monthly (admittedly impossible to find in the current environment), at the end of 40 years your account (in which you would have only invested $4,160 over the 40 years) would be worth $15,953, or close to four times your investment. Make that $20 instead of $2, and the amounts become more interesting.

You can find a straight compound interest calculator here, and one which includes the addition of monthly contributions to principal  here.

Human Rights Committee Observations

Above is an example of a Human Rights Committee observations in response to a state's periodic report, which each state submits pursuant to its obligations under the ICCPR. The Third Periodic Report of the United States of America, to which this document is a response, can be found here.Consider whether such reporting, and resulting response from the Human Rights Committee, is effective as a mechanism for mobilizing compliance with state obligations.

Hopping News Week in Int'l Law

The last week or so has seen a multitude of events and stories with significant international law implications, some relating to issues we have already studied, or will study later in the semester. Here are just a few:

The U.S. Court of Appeals for the District of Columbia vacated a conviction of Salim Ahmed Hamdan, the now-famous driver for Osama Bin Laden, who was the named applicant in the case decided by the Supreme  Court a few years ago. The Court here vacated the conviction of the military commission in Guantanamo Bay on the grounds that the conviction was for a crime that does not exist in the laws of war. A summary of the decision is on the ASIL website here.

Related to our discussion of the Al-Sekini case, last week several Royal Marines of the British forces in Afghanistan were charged with murder, for killings in an incident in Afghanistan in 2011.

Further to our discussion of extradition, the High Court of England and Wales dismissed the last attempts by five alleged terrorists in the U.K. to resist extradition to the United States, a summary of which can be found here. The claimants argued that there was a double standard, as the Home Secretary last week blocked the extradition to the United States of the young man with Asperger's syndrom, who had hacked into Pentagon computer systems, in a case that someone raised in class last week.

In the third presidential debate Mr. Romney suggested that President of Ahmadinejad of Iran should be indicted under the Genocide Convention for inciting genocide. This immediately led to discussion on social media about what he could possibly have meant - whether he was suggesting that Ahmadinejad be indicted by the International Criminal Court (which the Republican Party in particular is hostile to), or if he thought that somehow Ahmadinejad could be indicted within the U.S., and if so how. That debate has not made its way on to Opinio Juris, here and here. They don't really deal with the immunity issues.

Finally, in the area of use of force, there was a story this week about a cyber-attack on a Saudi firm, raising fears that Iran is responding to alleged U.S. and Israeli cyber-attacks on Iranian uranium enrichment facilities. The international law world is struggling with questions of whether and under what circumstances such "attacks" might constitute armed attacks justifying a use of military force in response in the exercise of self-defence. And just today, Sudan accused Israel of conducting an air attack on an ammunition facility in Sudan, in which two persons were killed.

The Senkaku/Diaoyu Island Dispute

Now that we have looked briefly at some of the principles that govern the acquisition of territory, and the delimitation of borders, consider the arguments in these two guest posts by Japanese and Chinese scholars, invited by Nick Kristof of The New York Times to state their nation's case.

First, you might want to read a couple of recent news articles on the dispute, here and here. Then, the debate begins with a post by the Chinese scholar Han Yi-Shaw. This is followed by a response from the Japanese scholar Takyuki Nishi. Finally, here is a later blog post from Kristof responding to a letter from the Japanese government.

We have not studied the legal principles that govern this dispute in any depth, but based on what you have learned so far, which of the two arguments do you find most convincing? In a short paragraph or two, in the comments section below, lay out who you think wins and why.

ECHR Case on Implementation of UN Security Council Black-lists

You will recall from our discussion of sources and subjects of international law, there have been objections to the increasingly legislative nature of resolutions passed by the U.N. Security Council, particularly those anti-terrorism resolutions that have created blacklists of individuals alleged to have be associated with terrorist organizations. In this very recent judgment of the European Court of Human Rights, the question was whether Swiss legislation implementing such a Security Council resolution violated the human rights of an Italian-Egyptian resident of Switzerland. The case will also be helpful in priming our thinking about human rights, which we will be begin looking at in a little over a week.

***************

Nada v. Switzerland (Sept. 12, 2012) [source - ASIL Int'l Law Brief]

Click here for document (approximately 82 pages)

The Grand Chamber of the European Court of Human Rights has ruled in Nada v. Switzerland that Switzerland violated the applicant's Article 8 right to respect his private and family life and Article 8 taken together with Article 13 right to an effective remedy of the European Convention on Human Rights by failing to strike a fair balance between the applicant's Convention rights and the legitimate aims of the Swiss government to prevent crime and to protect its national security and public safety.

This case deals with a Swiss ordinance implementing the UN Sanctions Regime against Osama bin Laden and his network adopted by the Security Council in 1999 in response to the 1998 bombings of U.S. embassies in Kenya and Tanzania. As the Security Council extended the sanctions regime with subsequent resolutions against al-Qaeda and the Taliban, the Swiss government followed suit by modifying its ordinance, adding a ban on entry into and transit through Switzerland for individuals and entities listed in the UN Sanctions Committee blacklist. The applicant, an Italian and Egyptian national living in Campione d'Italia, an Italian enclave surrounded by the Swiss Canton of Ticino and separated from the rest of Italy by Lake Lugano, was added to the list in November 2001 and was thus banned from traveling through Switzerland. He tried to have his name removed from the blacklist by appealing to both the relevant UN bodies and the national courts. His was eventually delisted in 2009, shortly after Switzerland informed the UN Sanctions Committee that domestic investigations against the applicant failed to produce evidence showing that he had ties with any of the sanctioned organizations or persons.

More on Vienna Convention on Consular Relations

[Source -  ASIL Int'l Law Brief]

Gutierrez v. State of Nevada (Sept. 19, 2012)

 Click here for document (approximately 14 pages) The Supreme Court of the State of Nevada has ruled in Gutierrez v. State of Nevada that Carlos Gutierrez, a Mexican national sentenced to death for the killing of his three-year-old stepdaughter, is entitled to an evidentiary hearing to determine whether he suffered actual prejudice due to the lack of consular assistance during his sentencing hearing. The Court specifically referred to the 2004 decision of the International Court of Justice ("ICJ"), Avena and Other Mexican Nationals, wherein the ICJ found that the United States violated Article 36 of the 1963 Vienna Convention on Consular Relations when it failed to notify fifty-one Mexican nationals on death row, one of whom was Gutierrez, of their consular notification and access rights. While the U.S. Supreme Court subsequently held in Medellin v. Texas that neither Avena nor the accompanying President's Memorandum purporting to implement Avena "constituted directly enforceable federal law," the Supreme Court of Nevada ruled that in cases where actual prejudice can be shown, state procedural default rules "may yield" to Avena.

 According to the Supreme Court of Nevada, "[u]nlike Medellin and Leal Garcia but like Torres, Gutierrez arguably suffered actual prejudice due to the lack of consular assistance." Furthermore, the Court noted that "[i]t is apparent that Gutierrez needed help navigating the American criminal system. At the time of his arrest, Gutierrez was 26 years old, had the Mexican equivalent of a sixth-grade education, and spoke little English." The Court concluded that "[r]easonable minds can differ on whether these errors were prejudicial and that is precisely the reason an evidentiary hearing is necessary."

Legality of the Drone Program

Christina Hansen writes:

While the use of drones in targeted killings is admittedly a newly emerging area of law, I am deeply disturbed about the deception employed by the U.S. when the campaign in Pakistan began. As we discussed in LOAC, both the criteria for choosing targets for these drone strikes and the process by which targets are approved are still largely a mystery to all but a select few officials. It will be interesting to see what the U.S. will do if Pakistan withdraws its seemingly lukewarm support of the drone strikes in its territory. Will the U.S. continue the program under the banner of self-defense? And will the international community accept that justification? http://www.npr.org/2012/10/06/162395399/u-s-drones-navigate-murky-legal-path-in-pakistan

Al-Sekini v. Sec. of State for Defence

Hazim Al-Skeini

As will be discussed in class on Thursday, the European Court of Human Rights in July of last year handed down a judgment with respect to the same case that we examined today, the House of Lords decision in Al-Skeini v. Secretary of State for Defence, holding that the Iraqi nationals could make claims under the Convention, and finding that the UK had, among other things, violated the claimants' Art. 2 right to life. There is a summary and commentary on the judgment on the Lawfare blog here, and the decision itself is here.

If you have time to scan the decision, consider whether you still think that the House of Lords got it right (or wrong), and which decision you think better accords with international law principles on jurisdiction, and the rationale underlying those principles.

UN Security Council Condemns Syria, and Conflict with Turkey Looms

Earlier this week a Syrian mortar strike on Turkish territory killed five civilians. Turkey retaliated with shelling of Syrian targets, and the Turkish parliament authorized further military action against Syria. Yesterday the U.N. Security Council passed a resolution condemning the Syrian attack, and referring to the impact the crisis was having on "international peace and security". Russia blocked language which would have indicated that the crisis was "a threat to international peace and security."

We will turn to the law governing the use of force in a couple of weeks, when these issues will become clearer; but in preparation consider:

1) Was the Turkish response with shelling lawful under international law? If so, under what principle?

2) On what legal basis, if any, could Turkey continue to escalate military intervention in Syria, as parliament seems to have authorized?

3) Why was Russia concerned about the language "threat to international peace and security"? What would such language have triggered, if anything?

You may want to take a stab at answering these questions now, and then returning to see how your thinking might have changed after we study the use of force material.

Rhetoric of Iran and Israel

As the UN convened earlier this week, Iran's President Mahmoud Ahmadinejad ignored UN Secretary General Ban Ki Moon's request to keep words civil.  The jabs ranged from asserting that Israel has "no roots" in the Middle East to threatening Israel's elimination.  Israel's PM Netanyahu has mentioned capability of a strike against Iran's nuclear sites.  However, despite all the incendiary rhetoric, there may still be hope for diplomacy.  Ahmadinejad spoke earlier today in the UN General Assembly on Iran's "global vision and welcomes any effort intended to provide and promote peace, stability and tranquility" in the world.

Is this consistent language?

It will be interesting to see whether things cool off or heat up in the near future. Considering our class discussions, what do you think the future holds for these nations? What role does the US play? What role should the US play?

                         - India. 

UPDATE - (Prof. Martin) - Aside from the rhetoric, and what the statements suggest the likely course of action may be (which is interesting and of some significance), consider the legal issues implicated by this situation. Israel has been applying increasing pressure on the U.S. to commit to a use of military force in the event that certain 'red-lines' are crossed by Iran in the development of its uranium enrichment program. Would such a use of force be lawful? Is the threat of such a use of force lawful? if not, why not? What is Iran's recourse in the event that such a use of force would not be lawful? Consider these issues when we come to examine the law on the use of force. 

United Nations Secretary General's Speech

As discussed in class, the United Nations General Assembly got under way this week, and the Secretary General gave a speech outlining the challenges facing the international community - you may want to have a read of this summary when you have a moment.

Background to the Reparations Case

As we take up the Reparations case, you may find interesting this rather riveting account of the assassination of Count Bernadotte, published in The Telegraph upon the death of the lead assassin, Yehoshua Zettler, in 2009:

Unilateral Withdrawal from the West Bank?

Following on our discussions of whether Palestine meets the criteria for statehood, and whether the Palestinians have a right to self-determination, the BBC announced today that the Israeli Minister of Defence has floated the idea of a unilateral withdrawal from much of the West Bank.

Treaty Week - What Treaties Should the U.S. Sign or Ratify?

As the International Law Prof Blog explains, there is a 'treaty event' this week at the United Nations, which is kicking into high gear with the foreign ministers and heads of state trekking to New York to address the General Assembly. The Secretary General is calling upon states to this week consider acceding to or ratifying treaties to which they are not yet party.

In that context, what treaties do you think that the U.S. should either accede to, or ratify if it is already a signatory, but not yet a party? Please post comments below on which treaties, explaining whether the U.S. is a signatory or not, and why (briefly) you think the U.S. should accede or ratify.

Military Commissions and Tribunals Established by Law

Given our examination this week of the Tadic decision's consideration of the question of whether general principles of international law require that a tribunal be "established by law", it is apt that we give some thought to whether the military commissions trying detainees in Guantanamo Bay are sufficiently "established by law" to satisfy the requirements of the principle (links to further critiques of the commissions on Opinio Juris can be found here, here and here). We will discuss these military commissions in more detail later in the course, but we should remember then, the general principle discussed in Tadic.

The Response to Events in Libya

You will all have no doubt been following to some extent the unfolding news regarding the attack on the embassy in Libya, and the killing of four American officials there including the Ambassador. President Obama has promised a robust response and vowed that the perpetrators will be brought to justice. The question is, what can the U.S. do that is within the bounds of international law? As one comment on this blog post queries, would a military response within Libya be justified as self-defense?

War Crimes Trials for Bush and Blair?

Desmond Tutu, winner of the Nobel Prize for Peace, made headlines (and here) last week by writing that former President George W. Bush and former Prime Minister Tony Blair, should be referred to the International Criminal Court for prosecution for the crime of aggression, for their role in initiating the war against Iraq in 2003. This has renewed the many debates about the legality of the invasion of Iraq.

In the context of our current study of the law of treaties, however, the important questions we would want to address here are: 1) was the invasion of Iraq an unjustifiable violation of the U.N. Charter prohibition on the use of force, for which we would have to analyze the relevant U.N. Charter provisions; 2) If so, does that give rise to individual criminal liability under some treaty; and 3) Does the treaty which established the International Criminal Court, the Rome Statute, create jurisdiction over such an offence such that the ICC could prosecute Mr. Bush and Mr. Blair?

We will look at some of these questions later in the course when we look at the use of force, and international criminal law.

Debates Over US Ratification of UNCLOS

As we begin digging more deeply into the conclusion of treaties, and what it means to sign but not ratify a treaty, you might consider the debate that has been going on over the last few months about whether the United States should ratify the United Nations Convention on the Law of the Sea. The U.S. signed the Convention in 1994, when it came into force, and there are currently 161 other countries that are party to the Convention. But there has been continued resistance in the Senate to ratifying the Convention. The Obama administration began the process this year of obtaining Senate advice and consent to ratify the treaty, but it has not yet been put to a vote.

Here is the beginning of a legal debate on the pros and cons of ratification by the U.S.

Territorial Disputes Roil Asia

Over the course of the summer a number of simmering territorial disputes in East and South-East Asia have become much more heated. China and the Philippines have had heated exchanges over the Spratly Islands in the South China Sea. Just last week there were protests in China, involving thousands of people, over the dispute between China and Japan over the ownership of an uninhabited group of islands called Senkaku by the Japanese, and Diaoyu by the Chinese, over which Japan exercises control. Even more recently, Japan has sought to submit to the International Court of Justice the question of sovereignty over a group of islands claimed by both Japan and South Korea, known as Takeshima in Japan, and Dokudo in South Korea.

All of these disputes are fueled not only by latent nationalistic passions and deep historical grievances, but by the knowledge that with control over any of these islands will also come control over rich natural resources on the sea bed in the area surrounding the islands, pursuant to the rules of the United Nations Convention on the Law of the Sea. Yet each of the disputes has the potential of spiraling out of control and leading to armed conflict. Why is it that the rules of the Convention cannot settle the matter? Why, notwithstanding apparent treaty rules that would determine control over the islands, is there room for such dispute?