Recent Posts

Am I Missing Something or Does the New Trade Promotion Authority Bill Violate the U.S. Constitution?

by Julian Ku

I am slammed with a couple of projects right now, but I can’t help throwing this question out to the legal blogosphere.  Does the new “Bipartisan Trade Priorities and Accountability Act” recently introduced by leading U.S. Senators violate the U.S. Constitution’s bicameralism and presentment requirements as stated by the U.S. Supreme Court in INS v. Chadha?

The BTPAA seems crucial as the U.S. enters the final stages of its negotiations over the “Trans Pacific Partnership” (TPP) with Asia and the Transatlantic Trade and Investment Partnership (TTIP) with Europe because it allows the President to submit his negotiated trade agreements for a “fast-track” up and down vote that Congress cannot amend.

Because of congressional opposition, the new trade promotion bill has a provision that looks a lot like a “legislative veto” that allows a resolution passed by a majority vote by one House of Congress to withdraw the “fast-track” authority.   Here seems to be the key language.

(A) IN GENERAL.—The trade authorities procedures shall not apply to any implementing bill submitted with respect to a trade agreement or trade agreements entered into under section 3(b) if during the 60-day period beginning on the date that one House of Congress agrees to a procedural disapproval resolution for lack of notice or consultations with respect to such trade agreement or agreements, the other House separately agrees to a procedural disapproval resolution with respect to such trade agreement or agreements.

(B) PROCEDURAL DISAPPROVAL RESOLUTION.—(i) For purposes of this paragraph, the term ‘‘procedural disapproval resolution’’ means a resolution of either House of Congress, the sole matter after the resolving clause of which is as follows: ‘‘That the President has failed or refused to notify or consult in accordance with the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 on negotiations with respect to ____ and, therefore, the trade authorities procedures under that Act shall not apply to any implementing bill submitted with respect to such trade agreement or agreements.’’, with the blank space being filled with a description of the trade agreement or agreements with respect to which the President is considered to have failed or refused to notify or consult.

Am I missing something? Even if (as the provision seems to say), a resolution of both houses is needed to withdraw fast track authority, the joint resolution doesn’t satisfy the presentment (to the President) requirement in the Constitution that the Supreme Court has repeatedly upheld in cases like INS v. Chadha and Clinton v. City of New York.  Unless the President has an opportunity to veto the “procedural disapproval resolution,” I doubt this law is constitutional.  I think the only saving grace is that the resolutions  withdrawing fast track can only be invoked if the President fails to notify or consult rather than on the merits.  But I am still very doubtful this difference matters. I haven’t carefully examined all of the legislation’s provisions, but this does strike me as an issue worth discussing.  Comments welcome!

400+ Academics Sign an Open Letter in Support of Harold Koh

by Kevin Jon Heller

I’m one of them. Here is the text of the letter:

To Whom It May Concern,

A recent petition at NYU urges people to express “no confidence” in the Law School’s invitation to Harold Hongju Koh to teach international human rights law this semester. We understand that this petition is motivated by Professor Koh’s recent service as Legal Adviser to the U.S. Department of State in the Obama Administration. We agree that individuals can have significant and understandable concerns about the use of lethal force by the United States, including the U.S. drones program. We also agree that U.S. actions must conform to a demanding application of constitutional law and international law.

Nevertheless, we believe the petition is deeply misguided. Professor Koh has been a leading scholar of, and advocate for, human rights for decades. While some may disagree with him on particular issues of law or policy, he is widely known for his unquestionable personal commitment to human rights and his eminent professional qualifications to teach and write on the subject. Any number of reports confirm that Professor Koh was a leading advocate for preservation of the rule of law, human rights and transparency within the Obama Administration, including on the drones issue.

While we strongly support the free exchange of ideas that is fundamental to civil society in general, and the academy in particular, we think it is patently wrong and unfair to suggest that Professor Koh acted unethically by his recent government service, or that his service now disqualifies him to teach human rights law on a leading law faculty. The world needs more human rights professionals who are willing to commit themselves to government service on behalf of their nation.

You can find a list of the signatories, which span the political spectrum, here.

The States Continue to Exist in Foreign Affairs: Implementing Treaties

by Julian Ku

Among my many hobby-horses is a  fascination with the role of the individual American states in the interpretation and implementation of international law within the U.S.  In past work, for instance, I have argued that states can individually implement treaties via guidance from Uniform Laws. I had a few examples of this phenomenon in my article, and I think it will be an increasingly common way for the U.S. to carry out its treaty obligations for those matters that are handled by state governments under American law.

So I was glad to run across this article about controversy over a bill in Idaho to conform to the 2008 Amendments to the Uniform Intercountry Child Support Act. The controversy stems from the fact that the 2008 Amendments require states to recognize and enforce child support orders from countries that are members of the Hague Convention on Child Support and that lawmakers in Idaho are concerned that states applying Sharia law might have their orders enforced by Idaho courts.  Putting this controversy aside for a moment, it is worth noting that states ultimately have a choice whether or not carry out U.S. obligations under the treaty, even though the U.S. has obligations under international law.  The federal government has decided to encourage states to carry out the treaty obligations via the spending clause by tying federal funds to adopting the 2008 amendments.  But states like Idaho can choose to not take the funds, and essentially refuse to comply with the treaty.

So it is worth noting, and perhaps celebrating, this continuing trend of relying on states to carry out US treaty obligations.  I think this trend is likely to continue.

Guest Post: Is the Alien Tort Statute Headed Back to the Supreme Court?

by William S. Dodge

[William S. Dodge is The Honorable Roger J. Traynor Professor of Law at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus briefs filed by the United States in Kiobel v. Royal Dutch Petroleum Co. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

In Kiobel v. Royal Dutch Petroleum Co., the U.S. Supreme Court held that the cause of action for human rights suits under the Alien Tort Statute (ATS) did not reach claims against a foreign corporation if all the relevant conduct occurred abroad. Lower courts have struggled with how to apply Kiobel to cases involving American corporations and conduct in the United States. On Friday, the second anniversary of the Kiobel decision, the Justices are scheduled to discuss the petition for review in Cardona v. Chiquita Brands International, Inc., a case that would allow them to provide further guidance in such cases.

Kiobel was something of an outlier—a class action against a foreign parent corporation (Royal Dutch Shell) based entirely on its foreign subsidiary’s activities in a foreign country (Nigeria), in which the foreign parent’s home countries (the Netherlands and the United Kingdom) objected that their own courts were more appropriate forums for the plaintiffs’ claims. The Supreme Court held that the principles underlying the presumption against extraterritoriality limit the causes of action that may be brought under the ATS, but it did not close the door to corporate suits entirely. In a cryptic final paragraph, Chief Justice Roberts wrote:

On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.

But what if some of the relevant conduct took place inside the United States? The Court majority plainly did not adopt the position of Justice Alito’s concurring opinion that the international law violation itself must occur in the United States. And what if the corporate defendant were not just “present” in the United States (as foreign corporations are considered to be for jurisdictional purposes) but actually had U.S. nationality?

Justice Breyer (whose concurring opinion was joined by Justices Ginsburg, Sotomayor, and Kagan) thought the ATS cause of action should cover claims against U.S. nationals and claims based on conduct in the United States. Justice Kennedy, who provided the crucial fifth vote for the majority opinion, did not tip his hand, but he emphasized in his own concurring opinion that the decision “leave[s] open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute.”

Lower courts are divided over how to answer these questions. The Second Circuit has been the most restrictive. It has held that the U.S. nationality of the defendant is simply irrelevant and that the alleged conduct in the United States must itself constitute a violation of the law of nations (although significantly the Second Circuit recognizes that the law of nations violation in the United States could consist of aiding and abetting a human right violation abroad). See Mastafa v. Chevron Corp., 770 F.3d 170, 187-89 (2d Cir. 2014). The Second Circuit also continues to hold that suits against corporations cannot be brought under the ATS at all because the law of nations does not recognize corporate liability. See Chowdury v. World Bangladesh Holding Ltd, 746 F.3d 42, 49 n.6 (2d Cir. 2013).

Other circuits have concluded that the U.S. nationality of a corporation is relevant in recognizing a cause of action under the ATS but not sufficient by itself. See Doe v. Drummond Co., 2015 WL 1323122, at *14 (11th Cir. Mar. 25, 2015); Mujica v. Airscan Inc., 771 F.3d 580, 594 (9th Cir. 2014); Al-Shimari v. CACI Premier Technology, Inc., 758 F.3d 516, 527 (4th Cir. 2014). None have held, like the Second Circuit, that the international law violation itself must occur in the United States. And one has expressly reaffirmed its prior holding—again, contrary to the Second Circuit—that corporations may be sued under the ATS. See Doe v. Nestle USA, Inc., 766 F.3d 1013, 1022 (9th Cir. 2014); see also Doe v. Exxon Mobil Corp., 654 F.3d 11, 40-57 (D.C. Cir. 2011) (recognizing corporate liability); Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1017-21 (7th Cir. 2011) (same).

The petition the Justices are planning to discuss on Friday has facts at the other end of the spectrum from Kiobel. The defendant corporations are both U.S. companies. They allegedly approved payments from their offices in the United States to the terrorist organization Autodefensas Unidas de Colombia (AUC) and facilitated shipments of weapons and ammunition with the purpose of aiding and abetting extrajudicial killings to suppress labor activism and local competition. Although the case is before the Supreme Court on a motion to dismiss, there is no dispute that the alleged payments occurred. In a criminal prosecution brought by the United States, Chiquita pleaded guilty to making illegal payments to the AUC. A divided panel of the Eleventh Circuit concluded in Cardona that all the relevant conduct occurred abroad, but without bothering to explain why the conduct alleged to have occurred in the United States was not relevant.

The facts alleged in Cardona certainly seem sufficient to recognize a cause of action under the criteria set forth in Justice Breyer’s concurring opinion. Four Justices joined that opinion, and it takes only four votes to grant cert. If those Justices think the facts in Cardona are sufficiently egregious to persuade Justice Kennedy that an ATS cause of action against U.S. corporations should exist in at least some circumstances, they could well vote to hear the case.

Weekly News Wrap: Monday, April 13, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

  • In the first meeting of its kind in nearly 60 years, U.S. President Barack Obama and Cuban leader Raul Castro sat down together for over an hour on Saturday at a regional summit in Panama, moving a step closer to restoring diplomatic ties.
  • As the United States and Iran come closer to a historic nuclear deal, many U.S. states are likely to stick with their own sanctions on Iran that could complicate any warming of relations between the long-time foes.
  • U.S.-led forces targeted Islamic State militants in Syria with three air strikes from Saturday to Sunday morning, and also conducted 10 air strikes in Iraq, the U.S. military said.
  • A U.S. federal judge on Friday denied a last-minute request by four U.S. former Blackwater guards convicted in the massacre of 14 unarmed Iraqis in 2007 to have their sentencing postponed, and said it will go ahead as planned on Monday.

Oceania

UN/World

Events and Announcements: April 12, 2015

by An Hertogen

Events

  • On April 13-14, 2015, the University of Alabama School of Law will host a workshop and symposium event on the topic of the Rights of States in International Law.  The event will be organized by Professor Dan Joyner. The participants will workshop their papers, which are to comprise a special issue of the Cambridge Journal of International & Comparative Law, which is being organized by Professor Joyner and Dr. Marco Roscini. This project is devoted to the question of whether fundamental rights of states, which appear to be recognized in the provisions of a number of conventional and customary sources of international law, actually exist. These purported rights include the right to self-defense, the right to existence, the right to private life/noninterference, the right to permanent sovereignty over natural resources; the right to be free from economic coercion, and the right to peaceful nuclear energy. If in fact they do exist, what is their source and legal character? What are their juridical implications – e.g. when they come into conflict with the legal obligations of the right holder, or with the actions of other states and international organisations? The papers in this special issue seek to examine these questions both theoretically and doctrinally, and to provide a framework for understanding the fundamental rights of states, and their role in the international legal system. For questions concerning the workshop/seminar, please contact Professor Dan Joyner at djoyner [at] law [dot] ua [dot] edu
  • Registration is now open for the International Institute of Humanitarian Law’s specialized course on the Conduct of Peace Support Operations (PSO) from June 15 – July 19, 2015 in Sanremo, Italy. The aim of this course is to prepare potential civilian and military staff and augmentees for PSOs by providing an understanding of the legal issues affecting their deployment and mission accomplishment. Participants will examine and discuss the wide ranging legal issues underpinning PSO mandates affecting mission design, and those legal aspects which will shape and govern the deployed force and mission. Seminar topics include the legal bases for PSO, the applicability of human rights and LOAC, criminal responsibility and the legal implications of detention, cyber activities, and emerging technologies on PSO.  For more information see here.

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. 

Weekend Roundup: April 4-10, 2015

by Jessica Dorsey

This week on Opinio Juris, we hosted a Book Symposium on Interpretation in International Law. The Symposium was introduced by Daniel Peat and Matthew Windsor who offered the framework and context of the book in describing their introductory chapter (available here), explaining that the idea of interpretation in their work centers around the metaphor of a game, with each of the authors contributing their thoughts on elements of that game.

In the next post, our own Duncan examined the object of the game of interpretation in terms of its existential function. Then, on Tuesday, Michael Waibel analyzed the players of the game by discussing the nature of interpretive and epistemic communities in international law. Wednesday, Julian Arato confronted the paradox that, despite the unity and universality of the VCLT rules, there is a practice of affording some treaties differential treatment in the process of interpretation. Thursday, Fuad Zarbiyev characterized the interpretive method of textualism in strategic terms, revealing the historical contingencies that led to it being regarded as sacrosanct in international law. And finally on Friday, Philip Allott’s contribution (emblematic of the aims of the book) reflected on ways to promote critical and open-minded reflection on interpretive practices and processes in international law.

We had two guest posts, one from John Louth who discussed how many international law books are published each year, and one from Gabor Rona, who addressed the recent holding Maldonado v. Holder as it pertains to the US’ obligations under the Convention Against Torture.

Kevin offered his thoughts on the advantage for Palestine of a slow preliminary examination with respect to Palestinian statehood and the recent petition to bar Harold Koh from teaching human rights at NYU and Roger highlighted a debate amongst scholars on the investment arbitration chapter in the TPP and TTIP.

I posted the news and events and announcements.

Thanks very much to the contributing authors of Interpretation in International Law as well as our guest contributors and to you for following us on Opinio Juris. Have a great weekend!

Book Symposium: Interpretation — An Exact Art

by Philip Allott

[Philip Allott is Emeritus Professor of International Public Law at the University of Cambridge.]

Interpretation of any text – religious, political, historical, scientific, literary, artistic, legal – raises profound philosophical problems. Interpretation of a legal text is in a class of its own, because it can have direct and substantial social effects, determining people’s lives. The philosophy of legal interpretation is the philosophy of a fundamental aspect of social existence.

The philosophical problems of interpretation stem from the fact that interpretation is a re-presentation of a presentation of reality contained in the text, a reality which is already an interpretation by the mind of some aspect of human experience, and the interpretative re-re-presentation then itself becomes part of that reality. The circular problem of the presentation of reality in language and symbols that modify reality has traditionally been seen as a problem of epistemology – How do we know anything? What is that we know when we think that we know something?

When a text is in a moral context (what does this text say that I or we should do?), it may have a personal effect beyond the social effect. Interpretation may generate a sense of obligation.   When a text is in a legal context, it may have more dramatic effects, personal and social. It may give rise to legal relations – rights, duties, powers, freedoms, etc.   And legal relations switch on specific and powerful social mechanisms in the making and the application and the enforcement of law.

It is a familiar fact that translation into another language can never produce a perfect re-presentation of a text in that other language. But such an ideal may dominate the mind of the translator, involving an underlying respect for the intention of the author of the text. In the case of interpretation, the originating premise is that the interpretation will be something different from the text interpreted.

A speculative or imagined intention of the author of the text may be a relevant element in interpretation, but the interpretation may properly take into account an unlimited number of other considerations. The interpretative context is, in principle, unlimited. It is for this reason that an attempt to lay down general legal rules of interpretation, as in the Vienna Convention on the Law of Treaties, is futile, not least because those rules must themselves be interpreted.

Thus all forms of interpretation involve a succession of acts of creation, supplementing the creative act that produced the original text. The original text becomes the nucleus of an ever-growing living-body of interpretations, each interpretation digesting the work of its predecessors. The text comes to be what it has been made to become through interpretation.

In all forms of interpretation, there may be a sense of proper limits to freedom of interpretation, an implied and unspoken deontology of interpretation. A religious text, centuries later, may have only slender connections with its original form. A Greek tragedy is its bare text plus centuries of thought about it. A work of art is overlaid with veneers, layer after layer, of thought about the work. The only controlling obligations in such cases seem to be a duty to preserve a continuing coherence of interpretation, a sense of respect for the author, a sense of changing social and cultural contexts to which interpretation should respond.

In the case of legal interpretation, the controlling deontology is an integral part of the justification of law itself as a social phenomenon. Law is a violation of human freedom inherited from the social past, taking effect in the social present, determining the social future. Law needs a lot of justifying. Lawyers are aware of this, especially judges and leading practising lawyers, and legal academic writers. Arbitrary interpretation would be a violation of the social responsibility of the lawyer, an abuse of social power. Lawyers know that they must justify their legal interpretations in the same ways that law in general and public authority in general are justified – through respect for a whole array of contextual social and moral standards and understandings, and an ultimate duty to find and to serve the common interest.

Interpretation of International Law is in a very different situation. There are no established contextual social and moral norms and understandings of the kind that dominate advanced national societies.   The overriding international ethic is the use of crude power and diplomatic power to serve nationally determined interests, with only a weak sense of a common interest.   The systems of law-making and law-application and law-enforcement are rudimentary and haphazard.   An international legal text is a happy-hunting-ground for the extreme ingenuity and duplicity that enlightened self-interest, and the subtle minds of lawyers, can generate – and an inexhaustible source of wealth for some.   Practical examples of this abound in the torrent of legal texts created and interpreted and applied in the vast expansion of the scope of International Law since 1945.

The future of international legal interpretation will be better if the future of International Society is better – and if International Lawyers acquire a more sophisticated understanding of the nature and the problems and the responsibilities of all forms of interpretation, and especially of legal interpretation. Interpretation in International Law is an art and a game and a field of battle. It is an ultimate art of the possible, and the possible includes a better kind of law for a better kind of international society.

Book Symposium: Textualism in Treaty Interpretation–A Genealogy

by Fuad Zarbiyev

[Fuad Zarbiyev is an Associate in the International Arbitration Group of Curtis, Mallet-Prevost, Colt & Mosle LLP.]

The interpretation discourse in modern international law is dominated by a textualist paradigm. This claim may seem empirically wrong if it is taken to mean that nothing other than eo nomine textual arguments features in the international legal discourse. After all, the interpretive regime set forth in the Vienna Convention on the Law of Treaties seems to put the terms, the context, and the object and purpose of the treaty on an equal footing. But this does not disprove the dominant status of the textualist paradigm. As a matter of the Vienna Convention regime, context is for instance nothing other than a slightly enlarged text. Likewise, object and purpose is not something independent of the text, but a parameter that can hardly claim relevance in the interpretive discourse without a textual anchoring.

Why has textualism come to assume such prominence in a legal system in which consensualism has traditionally been and is still said to be at the heart of legal commitments? Is it not paradoxical that intentionalism, which seems more deferential to state consent, is systematically discredited as an interpretive philosophy in international law?

No persuasive answer can be found to such questions in the international case law or the scholarly works uncritically reproducing it both of which seem to suggest that the interpretive regime set forth in the Vienna Convention is of a temporally boundless validity. Despite the fact that the treaty interpretation rules embodied in the Vienna Convention have been applied to treaties dating to the nineteenth century, the notion that the interpretive regime embodied in the Vienna Convention can claim a sort of trans-historical validity does not stand up to an historically informed scrutiny. Consider the following two interpretive statements separated from each other by a time interval of 87 years. The first statement issued by an arbitral tribunal in 1897 reads as follows:

[W]e are to interpret and give effect to the treaty of April 15, 1858, in the way in which it was mutually understood at the time by its makers … It is the meaning of the men who framed the treaty which we are to seek, rather than some possible meaning which can be forced upon isolated words or sentences.

The second statement, issued by the Iran-US Special Claims Tribunal in 1984, holds that:

[T]he Vienna Convention does not require any demonstration of a ‘converging will’ or of a conscious acceptance by each Party of all implications of the terms to which it has agreed. It is the ‘terms of the treaty in their context and in the light of its object and purpose’ with which the Tribunal is to be concerned not the subjective understanding or intent of either of the Parties.

Two interpretive philosophies farther apart from each other are hardly conceivable. A series of historically contingent factors can plausibly explain the gap between the epistémés underpinning these philosophies. The first among such factors is the phenomenon of permanent international tribunals. The rise of permanent tribunals seems to have gone hand by hand with the increasing marginalization of the intention of the parties in treaty interpretation. Traditionally considered as common body of the parties, arbitral tribunals tended to be careful in tracing back their decisions to the intention of the parties. In contrast, due to their independence from the parties before them, permanent tribunals did not feel the same discursive constraints and were able to place priority on text. The primary sign of this tendency is of course the decrease of the importance attached to travaux préparatoires in treaty interpretation.

Another factor worth considering is the ideological division of the international society in the 1950s-1960s when the Vienna Convention on the Law of Treaties was being drafted and finally adopted. Despite their strong political preference for the voluntarist conception of international law, the countries from the communist bloc vehemently rejected any attempt to undermine the priority status of textualism during the Vienna Conference on the law of treaties. Their position must be viewed against the ideological stakes at issue: the notion that communist countries could share a common intention with “bourgeois” states was hardly acceptable on ideological grounds as explained by the leading Soviet international lawyer, Grigory Tunkin.

Decolonization and the rise of newly independent countries on the international plane seem to be another relevant factor. While newly independent countries had a clear preference for law-making by treaties as opposed to customs over which they had no control, intentionalism could not have been an attractive interpretive approach for them. For one thing, intentionalism carried with it a serious potential for manipulation of the scope of their treaty commitments. For another, intentionalism presented the risk that the common intention of the original parties to a significant number of multilateral treaties to which newly independent countries became parties could be controlling. Neither of these prospects was acceptable to newly independent countries in view of their acute sovereignty-sensitivity.

Such contingent institutional and political factors should be seen together with the clear preference textualism has traditionally enjoyed in the intellectual history of international law, which explains that the historical contingency of textualism is seldom questioned by international law scholars. Due to the decentralized nature of the international society, every State enjoys the power to interpret its own rights and obligations. If unconstrained, this power of auto-interpretation can carry with it an enormous dispute-generating potential the danger of which is self-evident in international law where no state can be compelled to submit its dispute with another to a binding dispute settlement mechanism. The pro-textualist preference of international lawyers reflects their constant search for solid foundations that cannot be manipulated by states pursuing their own interests.

A genealogical inquiry along the lines above shows that treaty interpretation is not governed by immutable rules; it is a “language game” played by historically situated actors the historical situation of which directly impacts what the game is and how it should be played.

Guest Post: How Many International Law Books are Published in a Year?

by John Louth

[John Louth is Editor-in-Chief of Academic Law at Oxford University Press.]

I make it 401, but more of that below.

A few years ago when we carried out some research into law scholars’ habits we found many were telling us that there was so much being published that they didn’t even try to keep up anymore. I decided to try and see how difficult it would be to get a snapshot of just the books that published in one 12 month period – April 2014 to March 2015. The dates reflect two important cycles in my life: it matches OUP’s financial year and it marks the time between annual meetings of the American Society of International Law, the largest annual gathering of international lawyers (in the English speaking world at least).

The starting point for collecting titles was Jacob Katz Cogan’s invaluable International Law Reporter blog but due to the slightly different criteria for inclusion that I was applying I also went through publishers’ websites systematically. The result was 401 books published in English, French, and German.  No judgements about the quality of the scholarship were made – if it published in print, it was included. The full list in spreadsheet form and an explanation of the criteria for inclusion are available here. There is naturally a lot of room for debate about what I deemed to be “international” and what I deemed to be “law”. For each title I recorded the author/editor, language of publication, the publisher, and the subject area.

Statistical Overview

The top four publishers by number of titles were

  1. 1. CUP (72)

  2. 2. OUP (69)

  3. 3. Brill-Nijhoff (56)

  4. 4. Routledge (44).

Further behind we then have

  1. 5. Nomos (25)

  2. 6. Springer (24, or 27 if you include the 3 Asser Press titles they distribute)

  3. 7. Edward Elgar (20)

  4. 8. Pedone (19)

  5. 9. Hart (18)

  6. 10. Bruylant (11) and then a number of presses with between one and four titles in the list.

The linguistic split is 340 English, 36 French, 19 German, 5 French and English, and 1 German and English. The ratio of authored to edited books was 246 to 155.

Every title was assigned either one or two broad subject areas that it covered. The total figure for numbers of titles by subject therefore is greater than 401. Economic law broadly speaking (encompassing those titles on international economic law generally, plus those specifically on trade or investment law) accounts for the largest number (67), then human rights (53) and then war/peace/use of force issues (51).

The two institutions that had the most attention were the UN Security Council and the International Criminal Court which were the subject of 7 books each. Breaking the coverage down geographically there were more books about China (8) than anywhere else, followed by the Polar regions (6).

“Hot” Topics?

There were

  • 13 titles addressing issues of transitional or post-conflict justice
  • 7 each on terrorism and cyber issues
  • 6 each on corruption and economic/social/cultural rights, and
  • 5 on climate change.

Book publishing obviously lags behind current events which might explain why there are still quite a few books on piracy (4) in the list but not yet anything specifically on Syria or ISIS. In terms of genres the big one is clearly the “Handbook” with 13 in the list spread between Routledge, Elgar, and OUP, but the second is the evergreen Festschrift with 12 having published in this period. Special mention should be made of a liber amicorum for Serge Sur published by Pedone which is not on the list as it appears to have only been available as a subscription item and doesn’t seem to be available any more. That is a great shame as it concludes with a chapter about the glories of hard-boiled eggs with mayonnaise, for many years an inexplicable lacuna in international legal scholarship.

Why Do Such a Survey?

I did this to step back from my role as an OUP editor and see what is going on outside of my list but also to assess what kind of a burden is being placed on those who are trying to stay abreast of scholarship in their field. For scholars and librarians I hope that it is simply useful to see a reasonably comprehensive list and make sure you haven’t missed anything. Beyond that though it is probably helfpul to reflect on the quantity of output, the languages, and the subject areas/topics that are being published on. What areas are over-saturated and which are in need of greater coverage? Is it a concern that such a high proportion of the single-authored books are based on doctorates or is that a healthy sign of new thinkers entering the field?

If there is interest we could try to make this an annual survey, hopefully including publications from more than the three languages covered (helpers would be needed though as my language skills are limited to English, French, and German).

To get a fuller picture we need to look at journals and the many hybrid forms of scholarly output (such as working papers or reports produced for international organizations) but that will take some more time due to the vastly greater quantity of material to be sifted through.  For now I hope that this inaugural survey is food for thought.

Book Symposium: Accounting for Difference in Treaty Interpretation over Time

by Julian Arato

[Julian Arato is an Associate-in-Law at Columbia Law School.]

Interpretation in International Law is something of an iconoclastic volume, from its critical ethos to its provocative structure around the metaphor of the game. The object of its revisionism, above all, is an apparently stagnant formalism that seems too prevalent in the theory and practice of interpretation in international law today. Symbolic of this antiquated formalism – for the editors and for many of the contributors – are the rules of interpretation embedded in the Vienna Convention on the Law of Treaties (VCLT). There is something funny about defending the rules in such a collection – like arguing for reform in a volume on revolution.

My chapter, ‘Accounting for Difference in Treaty Interpretation over Time’, embraces the Vienna rules in principle. I reject neither rules nor formality, and I happily hew toward the VCLT’s project of bringing order to the practice of interpretation. In my view, there is real value in the regulatory ideal that a “correct” interpretation of any treaty exists. The Vienna rules reflect a crucial language for approaching that ideal. The rules don’t simply provide access to the correct interpretation – they help constitute it. And, crucially, they do so according to a scheme accepted by states, the plenary subjects of international law.

Still, in an important sense I agree with the volume’s critical spirit. In my view the real problem lies not with the Vienna rules themselves, but with a reverence for them that sometimes borders on the fetishistic. It’s not the rules, in other words, but the way they tend to be received. The misstep lies in the notion that the Vienna rules comprise a fully self-contained approach to treaty interpretation – universally applicable to all treaties, and always in the same way. This article of faith is neither borne out in practice nor in theory, and nowhere is this more evident than in the interpretation of treaties over time.

All students of public international law are at some point taught that as a matter of doctrine all treaties are subject to the same unified rules of interpretation. Yet at the same time, everyone knows that some treaties are special. Time and again we hear that some kinds of treaties are different. Courts, tribunals, and scholars often intone that certain treaties are entitled to special treatment when it comes to interpretation, especially as regards changes of circumstances and intentions attending the passage of time.

Often the argument is that human rights treaties are somehow special – capable of progressive evolution over time, with or without the continued consent of the parties. By the same token, it is sometimes suggested that subsequent party practice, usually an authentic criterion for the interpretation, reinterpretation, or even the modification of treaties, is somehow of less value in the context of interpreting treaties that confer rights on natural persons. The argument is that in such cases the mastery of the parties over time is somehow reduced. We hear similar statements about environmental treaties, territorial treaties, and of course the constituent instruments of international organizations. The problem is that the explanations offered for differentiating among types of treaties are rarely satisfactory.

The argument that a particular treaty provision is entitled to special treatment tends to be explained in one of two ways, both of which prove ultimately unsatisfying. One approach simply invokes the general subject matter of certain treaties in singling them out for special treatment. In light of their special subject matter, the argument goes, treaties on subjects like human rights or the environment should be understood as insulated from the changing will of the parties, and sometimes capable of autonomous evolution. But such statements cannot withstand serious criticism. In the words of the ILC’s Fragmentation Report (at [21]): “characterizations (‘trade law’, ‘environmental law’) have no normative value per se … The characteristics have less to do with the ‘nature’ of the treaty than the interests from which it is described.”

A second school of thought tries to work within the Vienna rules – focusing especially on one criterion of interpretation, object and purpose, in accounting for ascribing differential weight to the other codified rules. On this view, the touchstone must always be the intention of the states parties, as reflected in the goals that the treaty seeks to achieve. Adherents of the object and purpose approach have the advantage of formality. Its proponents can argue that the answers lie within the rules after all, in the invocation of object and purpose at VCLT Article 31(1). And yet something important still seems to be missing. Even where a treaty’s goals are sufficiently determinate, the interpreter must still ask how far the parties were willing to go to achieve their goals. Though a treaty may enshrine certain values, it remains critical to ask to what extent the states parties intended to entrench those values – to what extent, in other words, they agreed to tie themselves to the mast.

My suggestion is that international lawyers’ tendency to focus doggedly on the canons of interpretation codified in the VCLT draws attention away from a crucial consideration in the interpretive puzzle: the nature of the treaty obligations under interpretation. What gets left out is any inquiry into how far the states parties intended to commit themselves in acceding to a treaty obligation.

Put more schematically, the critical issue elided by the Vienna rules is whether a treaty provision entails a merely reciprocal exchange of rights and duties, or rather incorporates a more absolute commitment by the parties to take on an obligation insulated from their changing intentions, and over which their subsequent mastery might prove relatively limited. Some treaty norms represent mere exchanges of rights and duties, wholly dependent on mutual performance. If one party breaches its obligations, the other is well within its rights to do the same. Other norms represent a shared commitment to abstain from, or engage in, a certain behavior – whatever the other parties do. It is well understood that differences in the level of party commitment are relevant to determining the consequences of treaty breach, or to resolving conflicts with subsequent treaties. And indeed, as Pauwelyn has noted, the VCLT itself recognizes the importance of drawing distinctions between different types of treaty norms for these non-interpretive purposes. I argue that this distinction is just as central to the resolution of problems of interpretation over time.

Starting from the perspective that the Vienna rules are essential, I suggest that the problem of differential interpretation over time reveals a deficiency in how we think about VCLT Articles 31–32. Specifically we ought to avoid treating it as a total interpretive mechanism. The problem lies not in our interpretive rules as such, but in the assumption that any set of rules can do all the work. Without arguing for anything like revising or abandoning the VCLT, I suggest that the process of interpretation may sometimes require taking into account considerations left unmentioned by Articles 31–32. Distinguishing between types of obligations based on the level of the parties’ commitment is a case in point. Doing so helps account for quite a bit of interpretive practice that would otherwise appear anomalous under the Vienna rules; hopefully it can provide a more principled justification for differential interpretation going forward.

NYU Petitioners Do Harold Koh — and Themselves — a Grave Disservice

by Kevin Jon Heller

Newsweek published a long article today about a petition organized by NYU students, alumni, and non-law faculty claiming that it would be “unacceptable” for Harold Koh to teach international human-rights law at the law school. Here is a snippet:

While working for the Obama administration, Koh was the most public legal defender of the president’s drone strike program. Last month, a petition was circulated at NYU Law—one of the top law schools in the country—that called Koh’s teaching of international human rights law for the 2014-1015 academic year “unacceptable.”

“Given Mr. Koh’s role in crafting and defending what objectively amounts to an illegal and inhumane program of extrajudicial assassinations and potential war crimes, we find his presence at NYU Law and, in particular, as a professor of International Human Rights Law, to be unacceptable,” the petition reads.

The petition has drawn around 200 signatures, but it has stirred a much bigger controversy on campus than the numbers might suggest.

I do not think scholars should get a free pass for their ideas simply because they were government officials when they embraced them. I continue to believe that it’s a terrible idea for serious scholars to go into government — this kerfuffle being Exhibit A. And I have very serious disagreements with Koh about the legality of the Obama administration’s drone program; indeed, I’ve discussed them with him.

That said, I find the petition appalling. Koh is one of the great international human-rights scholars of his generation — and he has personally taught or mentored most of the great international human-rights scholars of the current one. He is brilliant, compassionate, kind, and profoundly ethical. No one who knows him even a little (and although I know him, I can’t say I know him well) could possibly believe that he did not bring all of those qualities to his role as the State Department’s legal advisor. Does that mean he was always right? Of course not. As I said, I don’t share his view of the drone program. On the contrary, I think the program is abhorrent and quite often illegal. (And have said as much in my scholarship.)  But I would bet my last dollar that Koh never went against his beliefs while working at State — and that he did everything he could, within the confines of his position, to make the drone program comply with international law as he understood it.

Those of us on the left — and readers know just how far left I am — need to stop viewing US administrations as monoliths. Not all government officials are bad. Even terrible administrations have good people in them who work behind the scenes to minimise their terribleness. John Bellinger III falls into that category in the Bush administration; commenters on the blog have done him a disservice by lumping him together with people like John Yoo. And the NYU students, alumni, and faculty who have signed this petition have done Harold Koh an even worse disservice by accusing him — publicly — of being unfit to teach international human-rights law. On the contrary, NYU would be lucky to have him.