Recent Posts

I Sing of MAARS and a Robot

by Chris Borgen

Defense One points to a news story in the Baghdad Post that the Iraqi Security Forces may be preparing to deploy a ground-combat robot:

Loosely dubbed Alrobot — Arabic for robot — it has four cameras, an automatic machine gun, and a launcher for Russian-made Katyusha rockets, and can be operated by laptop and radio link from a kilometer away, the [Baghdad Post] story says.

One point is important to emphasize, the Alrobot is a remotely-controlled four-wheeled drone, it is not an autonomous weapon. By contrast, an autonomous weapon would be, in the words of a recent article from the Institute of Electrical and Electronics Engineers, “capable of selecting and engaging targets without human intervention.”

However, while the Alrobot would not be autonomous, Defense One also notes that it will also not be the first remotely-controlled battlefield weapon deployed in Iraq:

Back in 2007, the U.S. Army deployed three armed ground robots called the Special Weapons Observation Reconnaissance Detection System, or SWORDS, from weapons maker Foster-Miller (now owned by Qinetiq). SWORDS basically consisted of a Foster-Miller TALON robot armed with a machine gun.

However, the SWORDS unmanned ground vehicles (UGV’s) were never used on patrol. A 2008 Wired article (to which Defense One linked) explained in an addendum:

Senior Army leadership, however, was not comfortable with sending them out to do combat missions due to safety reasons, and they are now placed in fixed positions, said Robert Quinn, vice president of Talon operations at Foster-Miller…

It seems to be a “chicken or the egg” situation for the Army, he said. The tactics, techniques and procedures for using armed ground robots have not been addressed.

But until there is an adequate number of SWORDS to train with, these issues can’t be worked out, he said.

.A successor weapons system, the Modular Advanced Armed Robotic System (MAARS) is currently being developed by QinetiQ. Like its predecessor, MAARS would  not be an autonomous weapon, but a remotely-controlled battlefield robot with humans making the tactical decisions. Consequently, the legal issues here would be less like the many concerns stemming from using artificial intelligence to make targeting and live-fire decisions, but rather would be similar to the legal issues arising from the use of armed unmanned aerial vehicles (UAV’s). Possible questions would include whether the use of the cameras and other sensors on the UGV would allow its operator to adequately discriminate between combatants and noncombatants. Does inserting an remotely-controlled armed robot make one more likely to use force? Under what situations would using such a system be disproportionate?

This may depend, in part, on how such systems are deployed. There could be different legal implications in using a UGV to, for example, “stand post” to guard the perimeter of a platoon that is out on patrol in a remote mountainous region as opposed to using a UGV in an urban combat situation where there are many civilians in close-quarters. The U.S. Marine Corps, for example, is considering when and how the use of weapons like MAARS would be appropriate.

For another recent post on robots and regulations, see my post from earlier this summer.

BDS Means Showing Disdain for Israeli Athletes?

by Kevin Jon Heller

As regular readers know, although I’m opposed to academic BDS, I fully support its economic incarnation. Which is why I find stories like this both depressing and infuriating:

“I have no problem with Jewish people or any other religion or different beliefs. But for personal reasons, you can’t ask me to shake the hand of anyone from this state, especially in front of the whole world.” These words, spoken by an individual who has just engaged in a gesture of support for the Palestinian people, are a standard response to the accusation of anti-Semitism which is routinely hurled at pro-justice activists.

The necessary distinction made between the “Jewish people” and the Israeli state is one Israel itself seeks to erase, as it strives to deflect all criticism of its policies, blaming it on anti-Jewish hatred instead. As such, these words do not in themselves establish new grounds, but a new approach to solidarity. Yet as Egyptian judoka Islam El-Shehaby uttered them last week in Brazil, they signified a new milestone: the sports boycott had arrived at the 2016 Olympic Games.

“Shaking the hand of your opponent is not an obligation written in the judo rules. It happens between friends and he’s not my friend,” El Shehaby explained, in the fallout from his action, which resulted in his dismissal from the games, for “poor sportsmanship.”

One day before El-Shehaby’s refusal to shake the hand of the Israeli Olympian he had just competed with, another judoka, Saudi Joud Fahmy, had withdrawn from the competition, in order not to have to compete against an Israeli athlete, should she win and advance to the next round.

You want to know why so many people despise BDS? Because of childish, appalling actions like these — actions that make it all too easy to erase the necessary distinction between criticism of Israel and anti-Semitism. I don’t watch the Olympics, in part because I don’t find them interesting (outside of a few sports like football), but mostly because I find the rampant jingoism sickening. But I would never hold the politics that pervert the Olympics against the individual athletes who compete in the games, all of whom — to a man and a woman — have dedicated their lives to sporting excellence. There is absolutely no justification whatsoever for disrespecting an Olympic athlete simply because of the country he or she represents. None.

Here’s a thought experiment. Imagine you did not view the Olympics solely through the prism of politics. Which country do you think more highly of now that the Olympics have ended? Egypt, whose judoka wouldn’t shake an Israeli judoka’s hand? Or New Zealand, whose 5000-metre runner gave up any shot at a medal to help an injured American runner who had initially helped her?

I don’t think what the Egyptian and Saudi athletes did is anti-Semitic. But I sure as hell think what they did was stupid — and profoundly damaging to the BDS cause. If these actions are a “new milestone” for BDS, as Mondoweiss claims, BDS is in serious trouble.

Weekly News Wrap: Monday, August 22, 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

UN/World

Emerging Voices: ‘Sovereignty in the Age of Global Terrorism’ What is the Role of International Organizations?

by Myriam Feinberg

[Dr Myriam Feinberg is a Postdoctoral Fellow at the Minerva Center for the Rule of Law under Extreme Conditions, University of Haifa. The topic addressed in this blog post is based on her monograph Sovereignty in the Age of Global Terrorism – The Role of International Organisations published by Brill/Martinus Nijhoff in May 2016.]

The attacks of 9/11 brought terrorism to the international stage. They raised many legal questions, both on the nature of terrorism itself and on the responses to the phenomenon. One of these questions is the role of international organisations in addressing the terrorist threat, and the ensuing question of the place of States in the international community. More generally, I contend that this can be examined in the wider context of state sovereignty, even though a number of international law analyses consider the concept of State sovereignty obsolete or in need of reform.

It is clear that the concept of sovereignty has evolved and that its validity can be challenged. Its definition was never completely clear but it definitely does not equate absolutism anymore. In fact, sovereignty is today considered to include a number of responsibilities for States. The Global Trust Project for instance, looks at sovereigns as ‘trustees of humanity’ and aims to examine the obligations that States and international organisations have towards various stakeholders, including foreign stakeholders.

However, the notion of sovereignty is also still frequently used as a narrative by States in order to impose certain domestic measures or to question territorial challenges. This is exactly why, to my mind, sovereignty is a useful frame of reference for counterterrorism, an area where issues of legitimacy and power are crucial: not as an ideal concept, not as a strict and defined notion, but rather, as the thermometer of how States consider their status, obligations and capacities in international law and their willingness to work alongside international organisations, especially in order to address security issues.

This post examines State sovereignty in the context of post-9/11 counterterrorism and focuses both on the ability of international organisations to adopt and enforce counterterrorism measures and on the practical example of terrorist asset freezing sanctions.

Terrorism challenges the sovereignty of a State because it questions the State’s ability to protect its citizens against violence and therefore, the States needs to be perceived as acting against it. After the events of 9/11, it also constitutes a challenge to the nature of the State in international law and to the international community as a whole.

In parallel, the attacks of 9/11 questioned the existing counterterrorism regimes of States because they showed that national legislation and jurisdiction were not sufficient to deal with this major issue. In other words, traditional responses appear to have failed and terrorist threats seem to have superseded territorial and nationality concepts. Yet, if terrorism constitutes a challenge to the concept of State sovereignty, any international response will also inherently challenge State sovereignty: since security is a core component of State sovereignty, the actions of international organisations in counterterrorism mean that the State is not the only actor to deal with security threats in its own territory. Instead, international and regional organisations have become fundamental actors in counterterrorism.

This tension between the two challenges to sovereignty is particularly interesting and it shows the trade-offs that States will face and the compromises they will need to adopt in order to balance the protection of their citizens and territory with their desire to retain the primary responsible actor in national security.

In practice, I argue that in the case of counterterrorism, sovereignty remains relevant for the following two reasons.

Firstly, terrorism concerns national security and States consider that they have the primary duty in this regard, with a view to protecting their citizens. This involves sensitive information, as well as political decision-making. In practice, this is a considerable obstacle to true global counterterrorism and it questions whether international organisations can truly make an impact on domestic counterterrorism legislation.

Secondly, the absence of an international definition of terrorism but more significantly, the lack of an international court with specific jurisdiction on terrorism and enforcement power further question the possibility of an international counterterrorism regime. In fact, while there is now an extensive international framework to deal with terrorism, the need for domestic implementation keeps the primary responsibility with individual States.

To further make this argument, we can look at the case of terrorist sanctions: the 2008 Kadi case of the European Court of Justice was a ground breaking decision that re-defined conflict of norms, although more recent case law, such as the 2016 Al-Dulimi case continue to develop the theme of relationships between international organisations and States, as well as between various international organisations.

These cases first show the focus of counterterrorism regimes on executive measures. The nature of terrorist threats has led to a number of emergency measures that took place without the balance of a judicial review or parliamentary oversight. In addition, the sanction regimes of the UN and the EU, as well as their domestic implementation, show the increasing cooperation, in a circular way, between the executive bodies of States and international organisations. Executive measures are the preferred way for counterterrorism for reasons of speed, secrecy and separation of powers. Moreover, the concerted way in which States and international organisations adopt these measures enables a consistency against the evolving threat of international terrorism. In this respect, the sovereignty of States is maintained in that the policy and legislation decided by domestic governments will be replicated at the international level, which is based on an intergovernmental model.

Yet, cases on terrorist sanctions, and in particular cases since Kadi, are also a testimony to the judiciary’s more recent attempt to protect human rights in the context of counterterrorism. In this respect, the main difference between regional organisations and the UN is that most of the former include a judicial enforcement mechanism within their mandate. This has been crucial in the context of counterterrorism, in particular, in order to balance human rights concerns with security needs. The various organisations have set some human rights standards for addressing terrorism within their counterterrorism regimes, but have also made a significant impact through their courts’ case law regarding human rights protection, in particular the EU and the Council of Europe. This role is fundamental given the targeting of individuals, rather than States, by the sanctions regimes.

On the other hand, the case law has created legal uncertainty with regards to the hierarchy between norms and conflicts between legal orders that would traditionally give precedence to the Security Council and its binding resolutions. States condemned by the European courts will want to ensure that their UN obligations do not clash with European human rights. In that respect, this might be the biggest impact on State sovereignty.

The framework of State sovereignty allows all these considerations to be brought to light. It shows that most of the measures adopted by international organisations will tend to contribute to States’ security agenda by remaining intergovernmental. Yet, it also evidences that the

concept of sovereignty as a responsibility to fulfil human rights obligations is continuing to develop, through regional courts. This is all the more significant because of the risk of sovereign abuse that often characterises counterterrorism in relation to to security measures and the focus on executive measures.

 

Emerging Voices: Is the Margin of Appreciation Accorded to European Union Member States Too Wide, Permitting Violations of International Law?

by Jenny Poon

[Jenny Poon is a Doctoral Candidate at the Faculty of Law of Western University, Canada and a Barrister & Solicitor in Ontario, Canada. The topic addressed in this post is based on a paper entitled State Discretion on Asylum Claims Procedures: Violation or Adherence to Non-Refoulement? All websites were accessed on 22 July 2016. The author would like to thank Dr. Valerie Oosterveld for reviewing an earlier draft.]

Introduction

The margin of appreciation is a creation of the European Court of Human Rights (ECtHR), in which the ECtHR grants European Union (EU) member states deference when the national authorities use their discretion to carry out duties under international law, which, it is argued, may at times be accorded so widely, that the margin of appreciation may permit member states to derogate from their international law obligations. The idea that the margin of appreciation is not yet a settled area of the law is reiterated by Greer in his paper. The doctrine first appeared in the ECtHR’s jurisprudence in the case of Cyprus Case (Greece v. the United Kingdom). Despite having an established presence in the jurisprudence of international tribunals, the extent of the doctrine is nonetheless uncertain as argued by Shany in his paper. For instance, international courts and tribunals have issued conflicting decisions on the use of the margin of appreciation. Most notably, the ECtHR applied the doctrine in the Handyside decision, stating that the doctrine applies to domestic legislators and to judicial bodies, while World Trade Organization (WTO) Dispute Settlement Body and its Appellate Body has stated in the Asbestos case that the doctrine applies only to WTO members. In the former case, both domestic legislators and judicial bodies are given a margin of appreciation when applying the law, while in the latter case, only national authorities of WTO member states are given a margin of appreciation when making discretionary determinations.

Despite the law being unsettled with regards to margin of appreciation, this doctrine is nonetheless applied by the ECtHR to show deference to EU member states when the member states use their discretion to carry out international law obligations. Consequently, this interpretation of the margin of appreciation permits the violation of international law in the context of asylum, where it allows EU member states to derogate from their duties of ensuring procedural safeguards, creates multiple and thus inconsistent interpretations, and permits state interests to be placed above the interests of asylum claimants. Clarity in the law is therefore warranted with regards to defining the extent to which “margin of appreciation” applies, and where the line must be drawn to ensure that the vulnerabilities of asylum claimants are properly addressed.

A wide margin of appreciation permits violation of international law

The first argument I wish to make is that a wide margin of appreciation permits EU member states to derogate from their duties of ensuring sufficient procedural safeguards for asylum claimants. International law obligates States to adhere to the procedural safeguards including according asylum claimants with the opportunity to be heard and the right to appeal in the context of an expulsion order pursuant to Article 32(2) and 32(3) of the Refugee Convention. Procedural safeguards come in many forms, which can include the safeguard to ensure that asylum applications are examined for their merits and not permitting instances of bias to affect the decision-making process. This is illustrated in the case of OS v. Ministry of Interior, where the Supreme Administrative Court of the Czech Republic held that the Ministry of the Interior erred in basing its asylum decision to reject an application on an inaccurate assessment of Turkey, thus giving effect to biased decision-making. The Ministry had exercised its margin of appreciation by basing its decision on a biased country of origin report. Having based its decision on a report that was political and that was not an accurate assessment of Turkey at the time, the Ministry of the Interior had biased decision-making. This case demonstrates that a wide margin of appreciation enables the EU member state to derogate from its international duty of ensuring procedural safeguards for asylum claimants, thus violating international law.

Next, I argue that a wide margin of appreciation permits EU member states to create multiple and thus inconsistent interpretations, leading to inconsistency and unpredictability of the law.

When States exercise their margin of appreciation too widely, it permits the creation of multiple and thus inconsistent interpretations of their international law obligations. The ECtHR case of Hirsi Jamaa and Others v. Italy illustrate the differences in interpretation among EU member states on their duties under international law. The ECtHR held that differences in interpretation on asylum decisions can result where there are bilateral treaties signed between the first and subsequent asylum-receiving EU member states. This case illustrates that a wide margin of appreciation permits EU member states to interpret their international law obligations differently. While differences in interpretation may be warranted in some circumstances, such as to accommodate for the unique geopolitical circumstances of different EU member states, if the margin of appreciation is too wide and thus improper, it creates too much room for EU member states to interpret their international law obligations, and result in a divergence among EU member states so wide that would not justify the doctrine’s original purpose. Another problem with a wide margin of appreciation is that it may lead to an increased likelihood of multiple and thus inconsistent interpretations, which may increase the possibility of international law being violated by EU member states.

Finally, I end with the proposition that a wide margin of appreciation permits EU member states to place their state interests above the interests of asylum claimants. EU member states exercise their margin of appreciation when they process asylum applications based on discretion which sometimes entails political considerations rather than merits. An example can be taken from the case of Ireland v. The United Kingdom, in which the ECtHR held that “national authorities are in principle in a better position than the international judge to decide [on the derogation from Article 15 of the European Convention on Human Rights…]. In this matter Art 15(1) leaves the authorities a wide margin of appreciation”. This case is used as an example to illustrate that the margin of appreciation may be accorded too widely in the case of derogation in times of emergency (Article 15), which, when the derogation is based solely upon political criteria, may permit EU member states to violate international law. For example, depending on the political agenda at the time, the EU member state may choose to interpret its duty to process asylum applications either narrowly or broadly, according to state interests at the time, leading to uncertainty and unpredictability of the law for asylum claimants. The case demonstrates that where the margin of appreciation accorded to an EU member state is too wide, the member state may utilize the doctrine to their advantage to promote their political agendas, often at the expense of asylum claimants. This motivation to accomplish state-interested goals permits the violation of international law in instances where interests of the EU member state are placed above the interests of the asylum claimant. It is argued that a wide margin of appreciation allows the EU member state to misuse the doctrine to circumvent their international law obligations. While some may argue that a flexible margin of appreciation would encourage the EU member state to sign on and support the norm, the concern is that, too much flexibility and therefore a margin of appreciation that is accorded too widely, would be detrimental to the asylum claimant given that a well-resourced member state may trump individual rights at any time where it would be in the member state’s interest to do so.

Conclusion

The purpose of this post is to consider the effects of the margin of appreciation doctrine in the context of asylum, where at times this can result in EU member states circumventing their international law obligations. I hope that illustrating the doctrine in this context can encourage the debate on proposing solutions for this perceived problem. It is important that the rights of the vulnerable such as asylum claimants are safeguarded against well-resourced mighty State powers. Therefore, the proper application of the margin of appreciation needs to be clarified in order to avoid EU member states acting outside of the permitted boundaries of the margin of appreciation at the expense of the asylum claimants. One proposed solution is to enlarge the role of the ECtHR to better define what constitutes ‘margin of appreciation’ and construct a framework within which EU member states may operate, while safeguarding the rights of the vulnerable.

Weekly News Wrap: Monday, August 15, 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

  • Britain’s exit from the European Union could be delayed until at least late 2019 because the government was too “chaotic” to start the two-year process early next year, the Sunday Times reported, citing sources it said were briefed by ministers.
  • The European Union should grant Turks visa-free travel in October or the migrant deal that involves Turkey stemming the flow of illegal migrants to the bloc should put be put aside, Foreign Minister Mevlut Cavusoglu told a German newspaper.

Americas

Oceania

  • The devastating trauma and abuse inflicted on children held by Australia in offshore detention has been laid bare in the largest cache of leaked documents released from inside its immigration regime.

UN/World

Emerging Voices: Can Foreign Investors Enforce International Investment Law in U.S. Courts?

by John F. Coyle

[John Coyle is an Assistant Professor at the University of North Carolina School of Law.]

On June 14, 2016, the Islamic Republic of Iran initiated proceedings against the United States before the International Court of Justice (“ICJ”), alleging that the United States had violated the 1955 Treaty of Amity, Economic Relations, and Consular Rights (“Treaty”) between the two nations.  Iran claimed, inter alia, that the United States had discriminated against Iranian companies, failed to accord these companies the most constant protection and security, and expropriated their property without compensation.  In support of its claim, Iran noted that the ICJ had jurisdiction to hear the dispute pursuant to Article XXI(2) of the Treaty, which provides that “[a]ny dispute . . . as to the interpretation or application of the present Treaty . . . shall be submitted to the International Court of Justice.”

Similar treaty provisions can be found in more than a dozen other treaties of friendship, commerce, and navigation (“FCNs”) negotiated by the United States in the two decades following the Second World War.  At the time, these agreements to submit to the jurisdiction of the ICJ was viewed as a significant milestone in the peaceful resolution of international investment disputes.  In the decades that followed, however, nations increasingly turned to bilateral investment treaties (“BITs”) and investor-state arbitration to resolve such disputes.  It is today common in the academic literature for authors to identify two—and only two—fora whereby the rights granted to foreign investors under FCNs or BITs may be enforced.  The first is the ICJ.  The second is an international arbitral panel.

In a recent paper, Jason Yackee and I argue that this account overlooks a third possible forum—the courts of the United States.  We argue that the FCNs negotiated by the United States in the 1940s and 1950s, most of which remain in force, provide foreign investors with domestically enforceable rights. These FCNs contain promises of favorable substantive treatment that are quite similar to the rights commonly extended to investors through BITs and investment chapters in free trade agreements such as NAFTA and CAFTA.  Unlike NAFTA and CAFTA, however, the FCNs are self-executing and give rise to a private right of action. This means that their provisions may be directly enforced in U.S. courts by private litigants.

This ability to access substantive international investment law through domestic litigation rather than international arbitration is of significant practical and theoretical importance.  It could lead foreign companies to rethink their approach to asserting indirect or regulatory takings claims against governmental entities within the United States.  The choice available to foreign investors who believe that they have suffered a regulatory taking has long been viewed as binary. The investor may either bring a constitutional takings claim before a U.S. court or a treaty-based expropriation claim before an international arbitral tribunal. There was no way—or so conventional wisdom held—for a foreign investor to invoke the enhanced protections afforded by the treaty in domestic litigation. The FCNs make it possible, at least in principle, for foreign investors to litigate takings claims in U.S. courts under international investment law standards rather than constitutional ones.

The ability to access the substance of international investment law through the FCNs also suggests that foreign investors may in some cases enjoy domestically enforceable rights under those treaties that are superior to those accorded to citizens under the U.S. Constitution. The U.S. Supreme Court held in Penn Central that courts must balance three factors in determining whether a regulatory taking has occurred under the Takings Clause: (1) the economic impact of the regulation on the claimant, (2) the extent to which the regulation interferes with investment-backed expectations, and (3) the character of the government action. In theory, the test constitutes a neutral attempt to balance the interests of the government against the interests of private property owners. In practice, the test typically results in a finding that no taking has occurred and that no compensation is owed to the property owner.  The standard of protection for regulatory expropriations under international investment treaties, by contrast, is generally viewed as more demanding than the standard of protection set forth in the Takings Clause. Indeed, when the U.S. Congress became aware of this divergence in 2002, it enacted a law directing U.S. trade negotiators to “[e]nsur[e] that foreign investors in the United States are not accorded greater substantive rights with respect to investment protections than United States investors in the United States.”  The treaty negotiators subsequently modified the text of the U.S. Model BIT to effectuate this goal for future agreements.  However, these textual modifications do not affect treaties that were then in existence, a list that includes all of the FCNs.

We acknowledge that there are a number of practical obstacles that would need to be overcome before the FCN revival could successfully occur.  The first is the well-documented reluctance on the part of U.S. judges to directly enforce rules of international law in the absence of a statute expressly directing them to do so.  The second is the fact that FCNs couch their promises to investors in language that is sometimes different from the domestic-law analogues with which U.S. judges are familiar. Judicial unfamiliarity with the language of international investment law may make it more likely for judges to restrict private access to the treaties.  The third obstacle is that U.S. courts have, at least historically, been reluctant to grant rights to foreign nationals while denying these same rights to U.S. citizens. Under our argument, foreign investors would be asking the courts to enforce a treaty provision granting rights to foreign companies that are arguably superior to those enjoyed by U.S. citizens.  While there are scattered precedents in which U.S. courts have recognized such rights in the past, contemporary judges may prove resistant to the idea in practice.

There is also at least one significant doctrinal obstacle that would need to be overcome—sovereign immunity.  In the United States, the state and federal governments generally enjoy sovereign immunity unless they have waived this immunity or consented to suit.  The Supreme Court has stated that the Takings Clause amounts to a de facto waiver of federal sovereign immunity for suits in which a taking is alleged.  Some scholars have argued that the Takings Clause also abrogates state sovereign immunity for constitutional takings claims.  If the takings claim were to be framed as a treaty violation, rather than a constitutional one, then it is unclear whether the state and federal governments could invoke sovereign immunity as a defense.  On the one hand, the Fifth Amendment could be read as a waiver of sovereign immunity with respect to treaty-based takings claims as well as constitutional ones.  This argument derives support from (1) the fact that the text of the standard treaty provision relating to takings closely tracks the text of the Fifth Amendment, and (2) the fact that foreign sovereigns generally do not enjoy immunity in U.S. courts when they take property in violation of international law.  On the other hand, the Fifth Amendment could be read to waive sovereign immunity only with respect to constitutional claims.  This argument derives support from the Supreme Court’s repeated admonition that waivers of federal sovereign immunity must be “unequivocally expressed” and the Court’s consistent practice of “construing waivers of sovereign immunity narrowly in favor of the sovereign.”  To date, there is a dearth of case law on this issue.

It is important to note, however, that sovereign immunity only presents an obstacle with respect to suits against the United States or one of the several States; counties and municipalities do not enjoy sovereign immunity.  Even if a court were to conclude that the state and federal governments could assert sovereign immunity as a defense, FCNs could still serve as a useful check on any regulatory takings conducted by U.S. counties and municipalities.

In summary, the FCNs are not historical relics. They remain in force, and they provide doctrinally meaningful legal guarantees to foreign investment in the United States due to their self-executing character and the fact that they give rise to a private right of action. While the FCNs have not played a prominent role in domestic litigation over the past half-century, it is easy to imagine how they might be relevant in future years. The U.S. government and its sub-federal counterparts interact with FCN-covered investors all of the time. To the extent that the government thinks in advance about the consequences of its actions toward foreign investors, it should at least consider the possibility that an FCN treaty might impose legally enforceable limitations on its freedom of action. Investors who feel mistreated by the government, moreover, should consider the availability of FCN-based causes of action when planning their legal responses.

Emerging Voices: A Case of Firsts for the International Criminal Court: Destruction of Cultural Heritage as a War Crime, Islamic Extremism and a Guilty Plea

by Andrea Bowdren

[Andrea Bowdren (LLM (LSE), BCL International (NUI)) is a trainee solicitor at Arthur Cox in Dublin, Ireland. All views are the author’s own.]

The trial of Ahmed Al Faqi Al Mahdi before the International Criminal Court represents a series of firsts for international law and justice. Al Mahdi is the first individual from Mali brought before the International Criminal Court, the first Islamic extremist to face charges at the International Criminal Court, the first individual to be prosecuted solely for cultural destruction as a war crime, and the first individual who has indicated an intention to plead guilty to a charge of the International Criminal Court.

Ansar Dine, a militant Islamist group associated with al-Qaeda, aimed to enforce an extreme interpretation of Sharia law throughout Mali. In the territories under its control, Ansar Dine banned alcohol, smoking and Friday visits to cemeteries, among many other restrictions. Al Mahdi’s role in the group was head of the “hisbah,” or morality brigade, enforcing sharia and “preventing vice” among the population.

In June and July 2012, Ansar Dine destroyed nine mausoleums of Muslim saints and the door of Timbuktu’s famous Sidi Yahia mosque, a UNESCO world heritage site dating back to the 15th and 16th centuries. Al Mahdi stands accused of jointly ordering or carrying out the attacks against the historical monuments, which UNESCO have described as “places of pilgrimage for the people of Mali and neighbouring West African countries.”

On 24 March 2016, the International Criminal Court judges ruled they would commit Al Mahdi to trial for one charge of the war crime of attacking “buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives” under Article 8(2)(e)(iv) of the Rome Statute. In this confirmation of charges hearing, it was stated Al Mahdi is criminally responsible:

  1. as a direct co-perpetrator under Article 25(3)(a) of the Rome Statute;
  2. for inducing the commission of such a crime under Article 25(3)(b) of the Rome Statute;
  3. for facilitating the commission of such a crime by aiding, abetting or otherwise assisting in its commission under Article 25(3)(c) of the Rome Statute; and
  4. for contrinuting in any other way to the commission of uch a crime by a group acting with a common purpose under Article 15(3)(d) of the Rome Statute.

The prosecution showed video extracts of interviews with Al Mahdi at the time of the attacks, where he explains the Islamic jurisprudence informing his actions.

On 1 March 2016, in an unprecedented move, Al Mahdi explicitly expressed his wish to plead guilty to the war crime charge. Defence counsel Mohamed Aouini has stated that Al Madhi “wants to be truthful to himself and he wants to admit the acts that he has committed. And he wants to ask at the same time for pardon from the people of Timbuktu and the Malian people.” This guilty plea has been described as a  “milestone in the history of the International Criminal Court” by chief prosecutor Fatou Bensouda. It provides both the prosecution and judges with an opportunity to reflect on how best to develop an institutional practice conducive to guilty pleas while advancing the interests of the International Criminal Court and justice.

What is the role of international law in this area? Why is the protection of cultural property important? What could this trial mean for the future interpretation of war crimes and the future of combatting terrorism?

Although the International Criminal Court has previously focused on attacks against people causing physical injury, the Rome Statute clearly provides that intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes or historic monuments is a war crime, provided they are not military objectives. Thus the Rome Statute envisages prosecutions of people like Al Madhi and recognises the effect that the destruction of cultural and religious monuments has on the psyche of the communities subjected to these attacks.

“A community’s cultural heritage reflects its life, history and identity. Its preservation helps to rebuild broken communities, re-establish their identities, and link their past with their present and future,” said Vibeke Jensen, UNESCO. Cultural heritage destruction is a powerful tool used to weaken morale and reinforce the authority of a new regime, which may have won control through violence or other criminal acts. In deciding to prosecute Al Madhi, the International Criminal Court underscored the seriousness of the destruction of cultural property and consequential psychological harm to the Malian population and highlighted the importance of accountability for perpetrators.

International Criminal Court Chief Prosecutor Fatou Bensouda told the court:

“The charges we have brought against Ahmad Al Faqi Al Mahdi involve most serious crimes. They are about the destruction of irreplaceable historic monuments and they are about a callous assault on the dignity and identity of entire populations and their religion and historical roots.”

Similarly, the Minister of Culture of Mali summarised these feelings aptly on 25 February 2013, when he called the destruction “an attack on the lifeblood of our souls, on the very quintessence of our cultural values. Their purpose was to destroy our past … our identity and, indeed, our dignity …”

Pursuing and prosecuting those responsible for cultural destruction and resultant harm could yield important changes in the way the international community approaches violent extremism and terrorism. This approach by the International Criminal Court corresponds with former chief prosecutor Luis Moreno Ocampo’s contention that combating terrorism would be more effective and humane if terrorists were treated as criminals to prosecute rather than enemies to bomb.

The trial is set to proceed on 22 August 2016 and the Chamber aims to complete the trial in a single week. This case breaks new ground for the protection of humanity’s shared cultural heritage and for the procedural future of the International Criminal Court, as it affords the Chamber an opportunity to reflect on what is best for the advancement of the interests of the International Criminal Court and international justice.

Weekly News Wrap: August 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

  • A member of an Australian anti-immigration group accused of planning an attack may face additional charges in what the government said was the first time federal terrorism laws had been used to target such right-wing groups.

UN/World

Events and Announcements: August 7, 2016

by Jessica Dorsey

Sponsored Announcement

  • EIUC – Master in Democratic Governance – Democracy and Human Rights in the Mena Region The European Inter-University Centre for Human Rights and Democratisation (EIUC) and its partners International University of Rabat (Rabat, Morocco), Birzeit University (Birzeit, Palestine), St Joseph University (Beirut, Lebanon), Ca’ Foscari University(Venice, Italy), University of Carthage (Tunis, Tunisia) are proud to open the Call for Applications to the third edition of the Master in Democratic Governance – Democracy and Human Rights in the Mena Region (DE.MA), starting in September 2016.
    DE.MA is a multidisciplinary curriculum offering courses in law, political science, sociology and other fields relevant to the study of democratic governance and Human Rights. Open to professionals and graduates, it will combine a theoretical and practical approach and will deliver a professional Master’s degree (60 ECTS) from Ca’ Foscari University, Venice. The first semester from mid/late September 2016 until January 2017 is held at Ca’Foscari and EIUC premises in Venice. During the second semester students will be placed in one of the Universities of the Consortium on the basis of the compatibility of their research and internship interests with the supervision expertise of the partner universities. Students will write a Thesis of 15,000 words which could be based on field and Internship work. Thesis defense and graduation ceremony will be in July 2017.
    The Master is meant to play an active role in the ongoing debate about the principles underpinning the transition of political regimes to democracy. It aims to:
  • Create high-profile experts in the fields of democratic governance and the protection of human rights, allowing them to act as promoters of a process leading to the affirmation of the democratic principles;
  • Foster the creation of an élite group of people committed to the promotion of democratic institutions;
  • Build a network of experts to be active in political institutions, in national and international, governmental and non-governmental organizations in the Region.
    Interested? Here are the practicalities:
    Deadline: 30 June 2016
    Language: English, (knowledge of French and Arabic recommended)
    Teaching method: Face to face teaching
    Tuitions Fees: 4.000.00 euro.
    Tuition Waivers/Scholarships: EIUC offers financial support in the form of a partial contribution towards living expenses and/or a full or partial tuition waiver. This type of financial support is awarded to a limited number of students on the basis of academic achievement, need and geographical distribution.
    More information on DE.MA, criteria for admission and a detailed programme can be found here: http://eiuc.org/dema

Event

  • The Yeoh Tiong Lay Centre for Politics, Philosophy and Law is delighted to announce the first of three Law & Justice Fora for the academic year 2016-17. The first forum is on the topic ‘Human Rights and Development’, and will feature some of the leading thinkers and practitioners in the world working at the interface of human rights and development. The aim of this forum is to address the place that human rights have in rigorous and effective thinking about development policy. There will be a special focus on the socio-economic rights, such as the rights to health, food and education etc. found in the International Covenant on Economic, Social and Cultural Rights (1966). You will be able to RSVP in September via The Dickson Poon School of Law website.

Call for Papers

  • The Goettingen Journal of International Law (GoJIL) dedicates its 8th Student Essay Competition to the topic Transparency in International Law. The GoJIL invites you to actively take part in the illumination of the concept and/or reflect on its implementation on the international level. The deadline for your submission is 30th November 2016. The maximal word count is 5000 words (excluding footnotes). The winning submission will be published in one of the upcoming GoJIL issues. The Student Essay Competition gives young scholars the chance to gain practical experience and get their own professional scientific publication. We strongly encourage you to take advantage of this great opportunity and hand in your submissions. For further details, see www.gojil.eu/essay-competition or contact the Editors at essay [dot] competition [at] gojil [dot] eu.

Announcements

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.

Emerging Voices: Computational Analysis of International Law-Using Text-As-Data Tools to Investigate International Investment Agreements

by Wolfgang Alschner

[Wolfgang Alschner (PhD in International Law, JSM (Stanford)) is a post-doctoral researcher at the World Trade Institute in Bern and the Graduate Institute in Geneva specializing in text as data analysis of international law.]

As international law scholars we are overwhelmed with information. The United Nations Treaty Series alone contains more than 50,000 treaties. Add to that the many thousand decisions by international courts and organizations that grow day by day. Just keeping abreast with a sub-field of international law is a full-time job. Not only academics but also beneficiaries of international law are affected by this information overkill. A recent UNCTAD report pointedly concluded that international investment law has become “too big and complex to handle for governments and investors alike”. Lest we are to drown in the rising tides of information and complexity, we need to find novel ways to digest and analyze international law materials.

Computational analysis of international law promises such a new way. Not only do computers not grow tired or grumpy when reading through thousands of documents, but they also find patterns in data that humans would not be able to spot. To be sure, robot lawyers are not going to replace human researchers any time soon – nor should they. But the interaction between computers crunching numbers and scholars interpreting results does provide new and exciting opportunities to tackle international law’s big data problems. In this post, I will highlight four examples derived from computational international investment law research that I did together with Dmitriy Skougarevskiy, which showcases some of the insights revealed through computer-assisted approaches that would have been difficult or impossible to gain using traditional human-led research.

Dmitriy and I have investigated over 2,100 International Investment Agreements (IIAs) and their 24,000 constituent articles. Using a computational approach similar to what is being employed in plagiarism detection software, we were able to empirically demonstrate four hitherto unknown or only anecdotally presumed aspects of the IIA universe relating to asymmetry in negotiations, the evolution of national investment treaty programs, the diffusion of treaty design and the innovations achieved in recent mega-regional agreements. To allow researchers and other stakeholders to engage with our findings directly and interactively, we have created the open-access website www.mappinginvestmenttreaties.com.

The simple, yet powerful text-as-data procedure we employ in our research consists of four steps. First, we collect treaty full texts and split them into their constituent articles. Second, we represent each treaty and article based on its consecutive 5-character components. The phrase “shall be permitted” is thus represented as “shall”, “hall_”, “all_b”, “ll_be”, “l_be_”, “_be_p”, “be_pe”, “e_per”, “_perm”, “permi”, “ermit”, “rmitt”, “mitte”, “itted” (“_” signifies space). Third, we compare the textual similarity between two treaties or articles based on the 5-character components they have in common calculating what is formally known as a Jaccard distance – a measure of dissimilarity ranging from 0 (100% similarity) to 1 (0% similarity). The phrase “shall be permitted” and a second phrase “shall not be permitted”, for instance, are identical, except for the 5-character components “all_n”, “ll_no”, “l_not”, “_not_”, “not_b”, “ot_be”, “t_be_” due to the word “not” in the second phrase, which yields a Jaccard distance of 0.48. Finally, since Jaccard distances by themselves do not tell us much, we compare Jaccard scores across sets of documents. Such comparison allows us to see where treaty language convergences or diverges uncovering latent patterns in our data – four of which we will present here.

First of all, our metric revealed a stark asymmetry in investment treaty making. While rich countries achieve highly consistent treaty networks whose design closely corresponds to the model template they employ, poorer states are party to patchworks of textual diverse treaties. Put differently, a computational assessment of textual similarity allows us to empirically show in a systematic, objective and replicable manner that developed countries tend to be the system’s rule-makers while developing countries are its rule-takers.

Second, Jaccard distances also shed light on consistency and innovation in national investment treaty programs. Some countries like the United Kingdom have only made cosmetic changes to their investment agreements over time. The country’s network of 110 bilateral investment treaties (BITs) concluded between 1975 and 2009 is thus the most consistent of the world. Other states have continuously updated their investment treaties. Our metric allows us to detect major changes in treaty design such as when the United States revamped its model agreement in 2004. Also less well-known innovations, such as the Finish shift to a pre-establishment treaty model in 1999 that combines investment protection with capital liberalization, are made visible. Our metric thus provides a means to inductively investigate the evolution of national treaty programs.

Third, our approach enables us to trace treaty design diffusion. We observe that some countries copied and pasted almost entire treaties from third states. Israel, for instance, heavily drew from British BITs when devising its own BIT program. Hungary, Czech Republic and Slovakia, in turn, used the BITs they concluded with each other in January 1993 as templates for their subsequent treaty negotiations resulting in strikingly similar agreements. Diffusion also happens on the clause level. We discovered, for instance, that the language of a public policy exception first appearing in Article 11 of the 1985 BIT between Singapore and China later diffused to India, Mauritius and half a dozen African countries. What makes the clause special is that it was conceived and is exclusively being used by developing countries making it one of the rare treaty design innovations in investment law that is indigenous to the Southern hemisphere.

Fourth, the approach we developed allows us to assess the novelty of newly concluded agreements. The Transpacific Partnership (TPP), for instance, was initially heralded as a “new and high standards agreement”. Our metric reveals how new it actually is and how high the standards are that it sets. We found that 81% of the text of the TPP investment chapter is taken verbatim from the 2006 USA-Colombia Free Trade Agreement. The remaining 19% are mostly used to clarify and further refine already existing standards. Hence, while it is true that the TPP investment chapter sets higher standards as compared to some of the earlier BITs with which it overlaps, it is very much a continuation of prior US practice rather than an IIA 2.0.

Computational analysis of international law thus provides an efficient and effective way to investigate the hidden structures of the international investment law universe revealing new and surprising insights. At the same time, the presented research offers only a glimpse of the multitude of opportunities that computational international law still holds in store. As computers turn the flood of legal information from a burden into a resource, hitherto impossible research avenues are opening up from the quantification of international law’s fragmentation to the investigation of state practice and opinion juris in 195 countries. Exciting times lie ahead.

Akhbar Beirut S.A.L. Guilty of Contempt, STL Found: One Small Verdict for a Tribunal, a Giant Leap for International Justice?

by Ekaterina Kopylova

[Ekaterina Kopylova is a PhD candidate at MGIMO-University, Moscow, and a former Legal Assistant with the ICC Office of the Prosecutor.]

On July 15, 2016, the Special Tribunal for Lebanon (STL) Contempt Judge Nicola Lettieri entered a guilty verdict against two co-accused standing trial for designedly violating confidentiality of several purported Prosecution witness identities in the case of Ayyash, et al. The special thing about this verdict is that one of the co-accused is a Beirut-based corporation called Akhbar Beirut S.A.L. It owns the newspaper and website that hosted the two articles pretending to reveal confidential information on the protected witnesses – a conduct that, in the Judge’s view, may have affected public confidence in the Tribunal’s ability to protect such information, and the potential witnesses’ determination to cooperate. Therefore, on July 15, 2016, for the first time in history a corporation was convicted of contemptuous conduct by an international criminal tribunal.

Earlier this year, the STL acquitted of similar charges another Lebanese corporation. Ironically, Judge Lettieri, who may have opened a new chapter in the history of the corporate liability in international criminal law with these two verdicts, wished he would not: throughout the two contempt matters involving the corporate accused, he consistently expressed a firm opposition to the STL’s exercise of jurisdiction over corporate entities.

Obviously, both cases set an important precedent in terms of the corporations’ principled amenability to trial before international courts, for interfering with their administration of justice or possibly other criminal conduct. They may incite other tribunals to look more closely at their law for any impediments to the punishment of corporations. The plain reading of the Rome Statute, for example, does not preclude the institution of the Article 70 proceedings against a corporation – for destroying, tampering or interfering with the collection of evidence, as may be the case. The drafters’ rejection of the corporate liability for the core crimes at the preparatory stage is not necessarily indicative of any such intent in respect of the offences against the administration of justice.

However, the cogency of the proposed model of attributing responsibility to a corporation is rather limited. Specifically, having concluded to the absence of an applicable international model, Judge Lettieri borrowed wholesale the provisions of the Lebanese criminal legislation, requiring that the following facts be established: (i) criminal liability of a specific individual; (ii) this individual’s power to act in the name of the corporation; (iii) that the individual acted on behalf of or using the means of the corporation.

Judge Lettieri reasoned as follows:

“In its decisions, the Appeals Panel highlighted the “unique link between [Lebanese law] and this Tribunal” and the Tribunal’s “hybrid nature”. I thus find significant that the corporate Accused is domiciled in and substantially operates in Lebanon. As it was foreseeable from Lebanese domestic law that certain conduct might give rise to corporate liability, I consider that looking to the material elements of the pertinent Lebanese law would not violate the rights of the Accused; particularly in the absence of contrary provisions in the Tribunal’s Statute or Rules. Finally, I am mindful that, in addition to being the domicile of the corporate Accused, Lebanon is where the alleged acts and conduct in this case occurred and more broadly is at the heart of the Tribunal’s mandate”.

From this reasoning, it is unclear whether Lebanese law is intended generally to govern corporate responsibility at the STL, or whether the applicable law will each time be determined by one or a set of connecting factors, such as the accused’s place of registration, place of business, and/or place of crime.

On the plain reading of the appeals decision, the Appeals Panel is tending towards the second option. In affirming Judge Lettieri’s reasoning, it circumscribed its scope of application to the facts and circumstances of the matter under review, stating: “In light of these factors, the Appeals Panel finds that, in this case, the elements for the attribution of criminal liability to legal persons are to be found in Lebanese law under Article 210 of the [Lebanese Criminal Code]”.

There is nothing inherently flawed about the connecting-factors-based approach to the choice of law governing the corporate accused’s liability. However, it makes no contribution to the development of a general international corporate criminal liability concept.

In developing such concept, inspiration should be sought elsewhere in international law. The law on the responsibility of international organisations for internationally wrongful acts may be informative. The 2011 International Law Commission’s Articles on the matter contain a detailed overview of the different case-scenarios under which a conduct may be attributable to an international organisation. Contrary to the STL’s model, the Articles do not, for instance, predicate the entity’s responsibility on the established responsibility of a concrete individual or organ within this entity.