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RIP Justice Antonin Scalia: The Misunderstood Internationalist

by Julian Ku

Like many lawyers who study constitutional law, I was saddened when I heard last night of the unexpected death of U.S. Supreme Court Justice Antonin Scalia. The internet being what it is, commentators have already offered their quick takes on Scalia’s substantial and multifaceted jurisprudential legacy (indeed, I think we’ve already moved on to debating his replacement). Most of these analyses have been fair, but I have been a little irritated with the glib and mostly inaccurate descriptions of Justice Scalia’s attitude toward international law.

For instance, Rosa Brooks writes at Foreign Policy that while many in the U.S. will mourn Justice Scalia’s passing,

The global legal and judicial communities, however, will mostly be indulging in joyful private choruses of “Ding, Dong, the Witch is Dead.” Or maybe not so private.

There was no love lost between Justice Scalia and foreign jurists. Scalia was famously dismissive of foreign and international law, which he considered good enough for, well, foreigners — but not for the great United States. “I doubt whether anybody [in the United States] would say, ‘Yes, we want to be governed by the views of foreigners,’” he scoffed in 2005.

Brooks’ piece highlights one of Scalia’s more famous intellectual crusades: to reject the use of foreign and international law in the interpretation of the U.S. Constitution. Scalia was the leading critic of using foreign and international law to interpret the Constitution and, in due course, he has often been derided as a judicial sovereigntist or even as a know-nothing contemptuous of all foreign or international law.

I have always felt this criticism of Justice Scalia was unfair for at least two reasons.

First, Justice Scalia was an “originalist” with respect to constitutional interpretation. To him, this meant that interpreters should privilege the original meaning of the Constitution’s text over any other sources of interpretation. Scalia was famously skeptical of legislative history in statutory interpretation, and he was fairly skeptical of even of using the Constitution’s drafting history in constitutional interpretation. He wanted judges to look at the text, standing alone, as much as possible.

Given these jurisprudential commitments, it is odd to criticize Scalia for rejecting the use of foreign and international law in constitutional interpretation. Unless one could show that foreign and international law was relevant to determining the original meaning of the constitution’s text, Scalia believed it was irrelevant. And so he criticized judges who relied upon such sources, just as he criticized them for relying upon their own personal preferences or on what he thought were simply the latest intellectual or social fads.

Secondly, Scalia was actually one of the most cosmopolitan members of the Supreme Court. Few justices enjoyed foreign travel more, and he was always willing to go abroad to lecture at foreign law schools or in front of foreign bar associations. Indeed, he was in Hong Kong just last week giving lectures and he had planned to teach in France this summer.

More importantly, Scalia was not afraid or contemptuous of international law when that was the governing law in a case before him. Indeed, when he started law teaching at the University of Virginia, comparative law and private international law were his primary research and teaching interests. And as Duncan pointed out in a post back in 2007, Justice Scalia was not unwilling to interpret statutes to conform to international law or treaties, nor was he unwilling to rely upon foreign judicial opinions interpreting international treaties. He did not think foreign judicial decisions or international law was irrelevant or meaningless. He simply objected, on grounds of intellectual consistency, to using those sources when interpreting the U.S. Constitution.

I did not agree with Scalia on every constitutional question. And no doubt he should take his lumps for mistakes he may have made. But he was not a judicial sovereigntist or a constitutional know-nothing. And contra Rosa, I rather think many foreign jurists and academics (especially those he met personally) will miss this remarkably effective and important representative of American jurisprudence in the world.  I certainly will.

Events and Announcements: February 14, 2016

by Jessica Dorsey

Announcements

  • Conflict Dynamics International presents a new tool for national judicial actors and others working on accountability for children in armed conflict: Anti-Impunity Tool: Guidance for investigating and prosecuting serious violations against children in armed conflict. This user-friendly tool provides concrete guidance and tips for investigating and prosecuting serious violations against children in armed conflict, such as recruitment and use of children by armed actors and attacks on schools. In addition, the Tool includes guidance on outreach to affected children and communities and on involving child protection actors and child victims/survivors in judicial processes. An annex features an example of a domestic legal and procedural framework, using the Democratic Republic of the Congo as a case study. The Tool is available in English and French hereConflict Dynamics International’s Children and Armed Conflict (CAC) Accountability Initiative promotes timely and effective accountability for serious violations of international law committed against children in armed conflict. For more information about the Initiative, please visit the website here.
  • The ICRC is offering an upcoming IHL course that will take place in April on the island of Gorée, Senegal. For more information (in French) please see the website here
  • Max Planck Group Leader in Bogotá, Colombia: The Max Planck Institute for Comparative Public Law and International Law (Heidelberg) and Universidad de Los Andes (Bogotá, Colombia) are looking to hire a Principal Investigator to lead a newly established Max Planck Tandem Group in Transformations of Public Law. Other than research, responsibilities include supervision of two doctoral students at Universidad de Los Andes. There is no mandatory teaching load. The Group will be located in Bogotá, and the Leader will be expected to reside in that city. The initiative will provide funding for at least one extended research stay per year of the Group at the Max Planck Institute for Comparative Public Law and International Law. Additional information may be found here. The deadline for applications is May 15th, 2016.

Calls for Papers

  • The faculty of Law, University of Turku, is organizing a workshop on changing notions of international legal personality in Turku, Finland on 12-13 May 2016. Deployed from a theoretical perspective, the Persons/Things workshop asks why our moral and legal commitment to persons differs greatly from that towards things. In recent years, this bifurcation has been called into question in many instances, whether by religious corporations or copyright owning apes. It is in this changed world the Persons/Things workshop seeks to explore the present and the past of classic Roman law persona/res distinction. Are challenges of the present world unheard of are they simple re-enactments of the past debates held over slaves and women? Or could there be something genuinely new in the seeming porosity of the border between things and persons? Abstracts are to be submitted by 1 March 2016. Further details of the call can be found on the Faculty’s website. PhD candidates and junior faculty are particularly encouraged to apply.

Events

  • “The Future of Arbitration in Africa” will be the subject of a daylong conference to be held in Washington, DC on Friday, March 11, 2016.  The conference is cosponsored by the American Society of International Law, Penn State University, and Greenberg Traurig LLP.  The program brings together expert practitioners and law professors from around the world to discuss recent developments and the important trends and challenges that will animate the future of international arbitration in Africa.  The daylong program will include four panel discussions: The Legacy of the Eritrea-Ethiopia Claims Commission; The Institutions and Practice of International Commercial Arbitration in Africa; Structural Challenges for Dispute Resolution in Africa: Culture, Diversity, and Development; and Foreign Investment and Investment Arbitration in Africa.  Registration is required.  Seats are limited so early registration is suggested. For more details, or to register, visit this website.
  • On 11 March 2016 the FRAME workshop ´A global force for human rights? Assessing the EU´s comprehensive approach to human rights in crisis management and conflict´ will take place at the Law School of the University of Seville, in Seville (Spain), from 9 am to 7 pm. The workshop will consist of a keynote speech and two panels. The keynote speech is entitled “A Global Force for Human Rights? Preliminary Findings from the FRAME Project” by Prof. Dr. Jan Wouters. The first panel will deal with the applicable regulatory frameworks regarding human rights violations in conflicts and the protection of vulnerable groups. The second panel will discuss the integration of human rights and international Humanitarian Law (IHL) and democracy/rule of law principles and tools into the Common Security and Defence  Policy (CSDP) and missions and evaluating their impact on vulnerable groups. Speakers include Prof. Dr. Gerd Oberleitner, University of Graz/ETC Graz; Prof. Dr. Francesco Seatzu, University of Cagliari; Dr. Mikaela Heikkilä, Åbo Akademi University; Prof. Dr. Elisabeth Salmón, Pontificia Universidad Católica del Perú; Prof. Dr. Cristina Churruca, University of Deusto; Ms. Ines Thevarajah, Human Rights Focal Point at the CPCC (EEAS); and Mr. Gabino Regalado de los Cobos, Colonel, EUTM Mali. The provisional programme is here. It takes place 11 March 2016, from 9 am to 7 pm at the Law School, University of Sevilla, Av. Enramadilla 18-20, Seville (Spain). If you would like to attend the workshop, please register with Laura Iñigo via linigo [at] us [dot] es

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Russia’s Short-Sighted Approach to the Georgia Investigation

by Kevin Jon Heller

According to a recent article in Agenda.ge, Russia has announced that it will not cooperate with the ICC’s formal investigation into the situation in Georgia:

Russia’s Ministry of Justice issued a statement confirming it would not cooperate with the investigation, reported Russian media today.

Tbilisi was not surprised by Moscow’s decision. The Georgian side believed it would not be in Russia’s best interests for this case to be investigated.

Russian officials stated it would not collaborate with The Hague Court since the Russian parliament had not ratified the Rome Statue, which Russia signed in 2000.

“As of February 1, 2016, the Russia Federation has not ratified the Rome Statute of the International Criminal Court and the document has not come into power,” Russia’s Justice Ministry said.

[snip]

Earlier, spokesperson for Russia’s Foreign Ministry Maria Zakharova said Moscow was disappointed with ICC’s recent activities and would be forced to “fundamentally review its attitude towards the ICC”.

Zakharova said ICC prosecutor Fatou Bensouda had taken Georgia’s side and started an investigation aimed against Russia and South Ossetia.

“Such actions hardly reflect the ideals of justice,” she said.

Assuming the article is correct — and Agenda.ge is, of course, a Georgian news organization — the statement represents a rather baffling shift in Russia’s approach to the Georgia investigation. According to the OTP’s request for authorization to open the investigation, Russia generally cooperated with the ICC during the preliminary examination, including providing the OTP with 28 volumes of evidence concerning Georgian attacks on Russian peacekeepers in South Ossetia. Given that the Pre-Trial Chamber has authorized the OTP to investigate those attacks (para. 29), Russia’s cooperation seems to have paid off, at least to some extent.

More fundamentally, though, Russia doesn’t seem to have much to fear from the ICC. The OTP’s most sensational allegation is probably that Russia had “overall control” of South Ossetia’s forces during the 2008 conflict…

International Law Movies

by Kristen Boon

After attending a great panel at ESIL in 2014 on International Law and Film, I’ve been thinking about how to integrate film into my public international law class. I’ve compiled a list of international law films (with help from colleagues and fellow bloggers) that make for excellent viewing.  In a subsequent post, I’ll offer some thoughts about teaching international law through film.

Dramatizations

Zero Dark Thirty (Bin Laden)

Team America (Terrorism, North Korea and WMDs) (not on the serious side of international law movies!)

The Interpreter (filmed in the UN)

Argo (Iran Hostage Crisis)

The Reader (War Crimes Trial in Germany)

Battle of Algiers (Algerian War of Independence)

Hotel Rwanda (Genocide in Rwanda)

Woman in Gold (Nazi Art Theft, FSIA)

The Whistleblower (Post-War Bosnia)

Captain Phillips (Piracy)

Blood Diamond (Conflict Diamonds)

Lord of War (Arms Dealing)

War Witch (Child Soldiers)

Star Wars (Trade Dispute prompts Armed Conflict in Outer Space) J

Bridge of Spies (Cold War)

The Constant Gardener (Diplomacy, Pharmaceuticals, British High Commission in Kenya)

Judgment at Nuremberg (Nuremberg Trials)

Documentaries

The Reckoning (The ICC)

Last Station before Hell (UN peacekeeping)

Sons of the Clouds:  The Lost Colony (Western Sahara)

The Gatekeepers (Shin Bet)

Taxi to the Darkside (Torture, Afghanistan)

All Rise (Jessup Competition)

 

An alternate list of international law films compiled by Lyonette Louis-Jacques at the University of Chicago Law Library with more foreign / older content available is here.

Do you have additional movie ideas?  Please add other titles using the comments box below.

The First Annual Michael Lewis Memorial Teleforum on “Defining the Law of War”

by Julian Ku

As many of our readers may recall, the late Professor Michael Lewis was a great friend of this blog and an important voice in U.S. international law and national security scholarship.  To honor his memory, the Federalist Society has recently launched the first annual Michael Lewis Memorial Teleforum in his honor.  The podcast features Maj. Gen. Charles Dunlap (Professor of the Practice of Law Executive Director, Center on Law, Ethics and National Security, Duke University School of Law) and Prof. Michael A. Newton (Professor of the Practice of Law, Vanderbilt University Law School).

The law of war is of fundamental importance to the Armed Forces of the United States. The law of war is part of who we are.” So begins the new U.S. Department of Defense Law of War Manual, published last June, which had not been updated for nearly 60 years. At 1180 single-spaced pages and with 6,916 footnotes, the manual would seem to be thorough and exhaustive. Our experts will critique the Department of Defense Manual. Does it provide the guidance necessary to troops on the ground, commanders, and all actors in between? How does it address modern warfare, terrorism, and asymmetrical war? How does it define lawful and unlawful belligerents? What does it say about interrogation and detention? These and other questions were addressed by our experts.

It’s a wonderful way to remember a great guy, but continuing to discuss and debate those issues about which he cared the most.

Weekly News Wrap: Monday, February 8, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • An elderly Australian woman kidnapped with her husband in Burkina Faso by a group affiliated to al Qaeda has been freed, neighboring Niger’s President Mahamadou Issoufou said on Saturday.
  • Some of the 267 asylum seekers Australia wants to deport to an offshore immigration center following a court ruling are suffering from cancer and other terminal illnesses, a senior government official said on Monday. The premier of an Australian state offered on Saturday to look after this group of asylum seekers facing repatriation to a camp on a remote Pacific island, adding to opposition to the federal government’s policy of offshore detention.

UN/World

Events and Announcements: February 7, 2016

by Jessica Dorsey

Announcements

  • The GlobalTrust research project published a call for applications for post-doctoral fellowships for the academic year 2016-17. The GlobalTrust Research project at Tel Aviv University Faculty of Law is funded by a  European Research Council Advanced Grant, and studies the extent to which states that exercise regulatory functions should take into account the interests and preferences of foreign individuals and communities located outside their boundaries. Participants in this project explore the possible moral and legal grounds for requiring states to take other-regarding considerations into account and the institutional mechanisms that could legitimize the external review of states’ compliance with such obligations.

Calls for Papers

  • Pluricourts at the University of Oslo, are pleased to announce a call for papers for their conference entitled ‘Strengthening the Validity of International Criminal Tribunals’ which will take place in Oslo on 29th -30th August 2016. The conference will explore different controversies surrounding the field of international criminal law and seeks practical solutions to make international criminal justice more effective and relevant. They are interested in hearing perspectives from both practitioners and scholars and welcome contributions from different disciplines. Abstracts are to be submitted by 29 February 2016. Further details of the call can be found on Pluricourts’ website.
  • The Society of Legal Scholars, the British Institute of International and Comparative Law, and the ESIL Interest Group on International Legal Theory are organising a conference on Monday 25th April 2016. For the conference, they’ve issued a call for papers.The theme is “Beyond our comfort zone? Situating the authority of international lawyers, institutions, & other international actors.” Here’s the call.
  • The Journal on the Use of Force and International Law (Routledge) is now requesting submissions for Volume 3(2). Deadline is 20 May 2016 for both articles and book reviews. The Journal attracts contributions both from scholars writing on the general nature of the law in the area of the jus ad bellum and those examining particular uses of force or developments in this field of law. The Journal invites submissions of unsolicited manuscripts. For articles, the suggested word length is between 8,000 and 25,000 words including footnotes, and for book reviews, which should significantly engage with the book under review, the preferred length will be 3-4,000 words including footnotes. All submissions will be double-blind peer reviewed and should comply with the Journal’s style guidelines. Articles and book reviews can be submitted online here.
  • Proposals are invited for contributions to an interdisciplinary workshop,”International Criminal Justice On/And Film” at the London School of Economics Centre for International Studies and the LSE Department of Law 12 – 13 September 2016. Proposals for contributions (in the form of academic papers for the most part, though we would welcome contributions in other media, particularly film) should take the form of an abstract of 500 words and contain a filmography, where applicable. They should be accompanied by a 1 page CV and sent by email to the three organisers (see here) by 15 March 2016. PhD and junior faculty applications are particularly encouraged.

Events

  • State Department Legal Adviser’s Office Presents Program on Iran Nuclear Deal – The sixth annual live and webcast program presented by the Office of the Legal Adviser of the Department of State will be held on February 18, 2016, from noon until 1:30 pm EST, on the subject of the Iran nuclear deal. Presenters include Mary McLeod, the Principal Deputy Legal Adviser, Newell Highsmith, a Deputy Legal Adviser, and Paul Dean, the Assistant Legal Adviser for Nonproliferation and Arms Control. Persons can attend the program at the Burns Moot Court Room at George Washington University Law School or participate remotely via the webcast of the program. An email address for questions during the program will be provided to registrants for the webcast. This program is cosponsored by the Section of International Law of the American Bar Association, George Washington University Law School, and the American Society of International Law. The event is free but registration is required (non-members of the ABA may register by establishing a free “new customer” account). Details are found here.
  • A one-day conference entitled The European Convention on Human Rights and the Crimes of the Past is organized jointly by the European Court of Human Rights and the European Society for International Law. The programme includes presentations by judges from the European Court of Human Rights, as well as international law scholars. The conference will take place on Friday 26 February 2016 at the premises of the Court in Strasbourg. Registration is now open (deadline: 19 February). In order to register, please send an email to: ESIL-ECHR-Conf2016 [at] echr [dot] coe [dot] int

  • The concluding conference of the MultiRights project, “Reforms of the Individual complaint mechanisms in the UN treaty bodies and the European Court of Human Rights: Symptoms and Prescriptions – Mutual Lessons?” will take place at the University of Oslo on February 29 and 1 March 2016. The conference will focus on analyzing and comparing the reform processes of the UN treaty bodies and of the European Court of Human Rights (ECtHR) aiming at finding mutual learning experiences. A particular focus will be given to the following issues:
    • Procedure of selection of members and judges
    • Case load situation
    • Quality of reasoning
    • Margin of appreciation and subsidiarity

    For more information and to register for the event, please visit the conference website.

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Al Jazeera Panel Discussion on Siege Warfare in Syria

by Kevin Jon Heller

Sorry for the endless self-promotion, but I thought readers might be interested in the following episode of Al Jazeera’s Inside Story, which includes a 30-minute panel on siege warfare in Syria that I participated in. It was quite a wide-ranging discussion, focusing less on international law than I expected.

As always, comments welcome! I hope readers don’t think I was too soft on either Assad or the UN…

Dear Fox News South Carolina: Shariah Law is Not “Also Known As International Law”

by Julian Ku

So local TV news in the U.S. is hardly the most sophisticated part of the U.S. media.  Still, I was taken aback by this passage from a news report from WACH Fox Channel 57  in South Carolina.

COLUMBIA, SC (WACH) – A measure that would ban the use of Sharia Law in South Carolina court rooms is working its way through the State House.

Sharia Law, also known as International Law, is closely tied to Islam. It covers an entire way of life, but one rule under Sharia Law is if someone is caught stealing, they would have their hand cut off as punishment.

(Emphasis added).  You can also watch the video version of the report.

It is worth noting that most state laws banning “international law” have been invalidated under the U.S. Constitution free exercise of religion clause because federal courts have held that the ban on “international law” is really aimed at “sharia” law.  This report confirms that this is indeed the case in South Carolina, and that some state legislators may not even know the difference between sharia law and international law.

One other note for our non-U.S. readers:  South Carolina is the third U.S. state to hold primary elections in our presidential race.  Its voters have a pretty big role in deciding who will be the nominees.  Just noting this fact, without comment.

 

Weekly News Wrap: Tuesday, February 2, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

  • German Interior Minister Thomas De Maiziere promised Afghanistan financial help to help reintegrate returned migrants during a visit to Kabul on Monday overshadowed by the latest in a series of deadly suicide bomb attacks.
  • China accused the United States on Monday of seeking maritime hegemony in the name of freedom of navigation after a U.S. Navy destroyer sailed within 12 nautical miles of a disputed island in the South China Sea.

Europe

Americas

  • A special mission sent by the Organization of American States met Haiti’s President Michel Martelly on Sunday as part of intensifying efforts to resolve an electoral crisis that threatens stability in the Caribbean nation.

Oceania

  • Human Rights Watch blasted Australia’s asylum-seeker policy as “abusive” and says a serious rethink is needed to restore the country’s standing globally; HRW also has said in its yearly report that Australia, while having a solid record on civil and political rights, was failing to respect international standards for asylum seekers and this was taking “a heavy human toll”.

UN/World

As Ukraine Prepares to Take Russia to UNCLOS Arbitration Over Crimea, I Predict Russia’s Likely Reaction

by Julian Ku

There have been noises coming out Ukraine for years that its government was preparing an international legal action against Russia over Crimea.  It looks like Ukraine has finally prepared to pull the trigger. According to this report, Ukraine is ready to charge Russia with violating the UN Convention on the Law of the Sea in the following ways.

“First, the seizure of fields with mineral reserves and illegal oil and gas on the continental shelf of Ukraine in the Black Sea. Secondly, the unlawful seizure of power to regulate fish catch, unlawful fish catch and not allowing Ukrainian fishing companies to catch fish in the offshore zone near the Crimean peninsula. Third, construction of a gas pipeline, a power line and a bridge across the Kerch Strait without the consent of Ukraine, the unlawful blocking of transit of Ukrainian vessels across the Kerch Strait and the unlawful seizure of navigation rights. Fourth, the conducting of studies of archeological and historical sites in the Black Sea bed without the consent of Ukraine,”

Both Russia and Ukraine have specified arbitration under Annex VII of UNCLOS. So if Ukraine filed a claim, it would follow the same procedure and rules as the one recently followed in the Philippines’ case against China and the Netherlands’ claim against Russia (over the Greenpeace seizures).

Unfortunately for Ukraine, I think I already know how Russia will react to any such arbitral claim.  First, like China has done against the Philippines, it will invoke its declaration under Article 298 excluding disputes “relating to sea boundary delimitations” from the jurisdiction of the UNCLOS arbitral tribunal.

Second, and like China again, Russia will almost certainly boycott the UNCLOS arbitration by refusing to appoint any arbitrators and refusing to show up at the hearings.  It followed this path in the Greenpeace “Arctic Sunrise” arbitration and there is no reason to think it will react any differently this time.

So although Ukraine probably has a good claim under UNCLOS, and it has a good case for jurisdiction as well, it should not get too excited.  Even if it wins its arbitration, it will probably not accomplish a great deal.

Discussing Gbagbo on BBC World News

by Kevin Jon Heller

I had the pleasure of going on BBC World News a couple of days ago to discuss the opening of Laurent Gbagbo’s trial at the ICC. The clip they sent me is very low quality; the sound isn’t even synced correctly. But I’m posting it just in case anyone wants to hear what I had to say. It’s about three minutes long.

I have to admit, being in that giant BBC studio was intimidating. I’ve done television before, but it was always remote from a tiny recording room. I hope I acquitted myself okay!