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ILSA gives us a glimpse of Jessup 2012:

The 2012 Jessup Problem involves a dispute between two states over the destruction of a cultural site of great importance and the important question of who gets to represent a state internationally in the immediate aftermath of a coup d’etat. It also involves international responsibility for the use of force by one state while taking part in a regional operation to bring about democracy.

A delightful mix of Jessups past, issues contemporary and developing areas of international law.  The destruction of a cultural shrine reminds me of Samara Penza and the Shrine of the Seven Tabernacles (not an Indiana Jones rip off; it’s the 2008 Jessup compromis). Like 2008 it doesn’t seem anything turns (i.e. one of the declarations) on the protection of cultural heritage: it’s the context around which the compromis unfolds.

Representation and capacity of a government is unexpected. The summary suggests a black v. white scenario as one government has effective control but not international recognition whilst the other has international recognition but not effective control. This issue, in more shades of grey, is live in Libya at the moment, where two competing governments, the Gaddafi regime and the Rebel forces, claim to represent Libya internationally. The issue of representation and capacity are raised by France’s recognition (followed by Qatar’s) of the Rebel’s as the lawful government which puts them at odds with the majority of the states which continue to recognise Gaddafi’s regime as the lawful government.

As a matter of law, there is a range of authority on this issue, including the reasoned state practice that came out of the Balkans starting with the break up of Yugoslavia via the Badinter Commission (including my favourite bit of state practice on the capriciousness of recognition whereby Greece torpedoed the EU’s recognition of Macedonia because Macedonia is also the name of a Greek province) and continuing right up to the independence of Kosovo.

Finally there’s the use of force in a regional peace keeping operation to bring back democracy.  Wow that sounds familiar. Kind of like the 2009 Jessup Compromis with its too-early attempt to address the Responsibility to Protect. Or the 2007 Jessup Compromis which considered whether certain acts were attributable to the Rotian Union or its constituent states. Once again modern day Libya springs to mind. As does Kosovo in 1999. The contours of R2P are moving rapidly, and it’s no bad thing if this issue’s re-engaged again even after just 2 years. It’s very contemporary.

The second half of this issue, concerning the political hot potato of responsibility from member state to IO is another issue ‘in the news’. Witness Obama palming of command of the Libyan no fly zone to NATO.  The law in this area is undergoing more careful review. In 2009 the ILC adopted the Draft Articles on the Responsibility of International Organisations along with commentaries. In January 2011 member states and international organisations gave their feedback on the adopted articles. Ideally the 2012 Compromis will strike somewhere that is new and uncertain in this latest round of codification  or raise questions in areas where individual state’s comments, which are (at least) opinio juris, conflict with the views of the ILC.

All in all, an intriguing mix. I’ll try and keep my enthusiasm in check (I don’t want to experience this years highs and lows again) but 2012 looks like an encouraging year for the Jessup.

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