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Weekly News Wrap: Monday, September 1, 2014

by Jessica Dorsey

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

Africa

Asia

Europe

Middle East and Northern Africa

Americas

Oceania

UN

Did Vladimir Putin Call for the Statehood of Eastern Ukraine?

by Chris Borgen

As the military situation in eastern Ukraine become more violent with the incursion of Russian troops, Vladimir Putin has called for talks to determine the statehood of eastern Ukraine. The Interpreter, a website that translates and analyzes Russian media reports, states that in an interview on Russian television Putin said:

We must immediately get down to a substantial, substantive negotiations, and not on technical questions, but on the questions of the political organization of society and statehood in the south-east of Ukraine with the purpose of unconditional provision of the lawful interests of people who live there.

[Translation by website The Interpreter.]

In its analysis of this somewhat cryptic quote, the Interpreter posits:

It is not clear how Putin envisions the “Novorossiya” entity, but given a presentation by his aide Sergei Glazyev yesterday at a conference in Yalta attended by Russian-backed separatists and European far-right party figures, there is a notion to make the amalgamated “Donetsk People’s Republic” and “Lugansk People’s Republic” a member of the Customs Union of which Russia, Belarus, and Kazakhstan are members.

For more on the Eurasian Customs Union, see this previous post.

As for the rhetoric of an independent Novorossiya, described in Foreign Policy as  the rebirth of a forgotton geopolitical term, Anne Applebaum wrote the following this past week in a grim article on Slate:

In the past few days, Russian troops bearing the flag of a previously unknown country, Novorossiya, have marched across the border of southeastern Ukraine. The Russian Academy of Sciences recently announced it will publish a history of Novorossiya this autumn, presumably tracing its origins back to Catherine the Great. Various maps of Novorossiya are said to be circulating in Moscow. Some include Kharkov and Dnipropetrovsk, cities that are still hundreds of miles away from the fighting. Some place Novorossiya along the coast, so that it connects Russia to Crimea and eventually to Transnistria, the Russian-occupied province of Moldova. Even if it starts out as an unrecognized rump state—Abkhazia and South Ossetia, “states” that Russia carved out of Georgia, are the models here—Novorossiya can grow larger over time.

Applebaum notes that for Novorossiya to move from Putin’s rhetoric to political reality will require more than the actions of the Russian army.  “Novorossiya will not be stable as long as it is inhabited by Ukrainians who want it to stay Ukrainian,” she explains.  Moreover, “Novorossiya will also be hard to sustain if it has opponents in the West.” Further sanctions will likely be the centerpiece of the EU and U.S. response.

But while some would say “international law is useless without sanction,” in this case I believe that economic sanctions are not enough without international legal argument.  For the moment, Russia’s strategy seems to be an amalgamation of stealth invasion and quasi-legal rhetoric. The “stealth”  part of the invasion is to maintain a fig-leaf of deniability and to make the uprising in eastern Ukraine seem homegrown as opposed to Russian-led. This strategy of stealth interlocks with Russia’s rhetoric, a quasi-legal/ nationalist amalgamation that attempts to persuade those who can be persuaded and befuddle those who cannot.

However, we are at an inflection point where an important new argument (the apocryphal “once and future Novorissya” argument, in this case) is being sent up like a trial balloon. Perhaps a more accurate metaphor is the idiom: “send it up the flagpole and see who salutes.” Putin and his advisers are sending the flag of Novorissya, figuratively and literally, up the flagpole.

If the EU and U.S. do not want another South Ossetia or Transnistria, then they will have to actively engage Russia’s arguments over what is “right.”  Consider this statement by Putin this week, explaining why the events in Eastern Ukraine confirm that Russia was correct in its actions in Crimea:

Now, I think, it is clear to everyone – when we look at the events in Donbass, Lugansk and Odessa – it is now clear to everyone what would have happened to Crimea, if we had not taken corresponding measures to ensure that people could freely express their will. We did not annex it, we did not seize it, we gave people the opportunity to express themselves and make a decision and we treated that decision with respect.

I feel we protected them.

If the illegality of Russia’s actions is not stressed, if the denial of Ukraine‘s right of self-determination is not emphasized, then the only thing many will hear is the rhetoric of those trying to slice off successive pieces of Ukraine. That rhetoric, unanswered, can reinforce the beliefs of those who want to dismember Ukraine. For others, it may make it seem as if maybe Russia “has a point” and muddy the waters. In both instances, effective sanctions could be perceived as just another example of might overcoming right.  And, rather than resolving the situation, the seeds for further conflict would be planted.

While effective sanctions enforce norms, clear norms strengthen sanctions.

 

 

Events and Announcements: August 31, 2014

by Jessica Dorsey

Events

  • On 23rd and 24th October 2014 the Dresden Research Centre for International Economic Law and the affiliated research project “Global TranSAXion” will be hosting a conference on “Mega-Regionals and the Future of International Trade and Investment Law”. The conference offers a forum to discuss the content and structure of the preferential trade agreements currently under negotiation between some of the world’s major trading partners. The main focus is on the Canada-EU Comprehensive Economic and Trade Agreement (CETA), the Transatlantic Trade and Investment Partnership (TTIP) and the Trans-Pacific Partnership (TPP). Further information about the conference, the registration and the venue can be found here.
  •  An international symposium will track the latest developments in the field of legal theory and legal philosophy and offer an insight into current developments and emerging debates. The overall theme of this year’s conference is “Legal and Philosophical Challenges of Transnational Law”, which is to be analyzed through a variety of substantive and methodological lenses, including: legal theory, legal argumentation, legal philosophy and political philosophy, international law, human rights and ethics. The conference will thus consist of four panels, dedicated to legal theory and legal philosophy; legal argumentation; international law and ethics. A special panel will be reserved for PhD researchers and researchers at an early stage of their career.

Announcements

  • The Institute for Global Law and Policy (IGLP) at Harvard Law School invites you to apply to participate in our 2015 Workshop in Doha, Qatar, from January 2-11, 2015IGLP: The Workshop is an intensive residential program for doctoral and post-doctoral law scholars and junior faculty. The aim of The Workshop is to strengthen the next generation of scholars by placing them in collaboration with their global peers as they develop innovative ideas and alternative approaches to issues of global law, economic policy, social justice and governance. Sponsored by the Qatar Foundation and hosted by Hamad bin Khalifa University, the Workshop brings together more than 100 young scholars and more than 50 senior and junior faculty from around the world for serious research collaboration and debate.The deadline for applications is September 12, 2014. Learn more and apply here today.

Last week’s events and announcements 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: August 23-29, 2014

by An Hertogen

This week on Opinio Juris, Julian asked whether the US President can enter into a legally binding climate change agreement without Congress, and educated news agencies about the difference between Taiwan’s airspace and its Air Defense Identification Zone.

The main focus this week was on the Middle East. Kevin commented on an Al Jazeera America piece on Israel’s attack on Shujaiya, while Peter discussed the likelihood and the practical usefulness of stripping ISIS fighters of their US citizenship, and Deborah addressed the difference between paying ransom for hostages and negotiating over prisoner exchanges.

Finally, Jessica wrapped up the news and I listed the events and announcements.

Have a nice weekend!

Hostages and Prisoners

by Deborah Pearlstein

I’ve been impressed by the number of questions I’ve fielded in the past few weeks from students, colleagues and media alike about whether the United States can and/or should pay ransoms or exchange prisoners for Americans held by various groups overseas. (I discuss the issue in short clips here and here.) Why did we exchange prisoners to rescue Bowe Bergdahl, but refused to pay ransom for James Foley? Is it illegal to pay ransom to these groups, or just a bad idea? Is it really a bad idea?

In the interest of consolidating some answers on a topic that raises a complex cluster of issues, I thought it worth summarizing some of them here – first on the topic of ransom for hostages taken by terrorist groups, then on the topic of prisoner exchanges more broadly. The upshot: It may well be the right policy decision in an individual case for a government not to pay ransom to a terrorist group, but the broader, categorical statement that “we don’t negotiate with terrorists” is neither historically accurate nor strategically wise. (more…)

Dear News Agencies of the World: China Did NOT Breach Taiwan’s Airspace, Just Its ADIZ

by Julian Ku

Several news agencies (here and here) have suggested that recent reports of Chinese military aircraft entering into Taiwan’s Air Defense Identification Zone  is akin to a territorial incursion.  For instance, J. Michael Cole warns at the Diplomat, “If they were indeed intentional, the latest intrusions could signal a further denigration of Taiwan’s sovereignty….”  In my view, calling ADIZ intrusions a breach of “airspace” and a denigration of “sovereignty” overstates the significance of an ADIZ under international law.

Taiwan’s own government has used the phrase “airspace”, so reporters can’t be faulted for repeating this phrase. But legally speaking, entering an Air Defense Identification Zone is NOT the same as entering a nation’s territorial airspace.  For an island like Taiwan, such territorial airspace would presumably start  end 12 nautical miles from its relevant island coast.  An ADIZ is usually a much larger zone declared by countries in order to allow them to track and identify aircraft that come near their territorial airspace.  If you look at Taiwan’s ADIZ  (in red), you’ll notice it goes well beyond 12 20131209DEN0006Mnautical miles from Taiwan’s coast (in fact, it technically stretches into China itself!).  An ADIZ is adjacent to a nation’s territorial airspace.  Declaring an ADIZ is not by itself illegal because it is not a claim of sovereign control over the airspace.  Of course, nations with an ADIZ usually demand foreign aircraft identify themselves before entering their ADIZ, but nations do not usually claim the right to exclude other nations’ aircraft from their ADIZ, as if it was sovereign territory. (For a recent discussion of the legal issues in ADIZ declarations, see here).

Now, since China has usually been careful to avoid crossing into Taiwan’s ADIZ (or at least parts of Taiwan’s ADIZ), its decision to do so now is interesting and significant.  But it is not a territorial incursion and it is not (technically) breaching “Taiwan’s airspace”.  So news agencies should be careful not to report it as such.

Will the U.S. Move to Citizenship-Strip ISIS Fighters?

by Peter Spiro

It’s only a matter of time before we start seeing proposals to take away the citizenship of Americans fighting for ISIS/ISIL forces in Syria and Iraq. They have drawn renewed attention in the wake of James Foley’s beheading (apparently by a British citizen) and the death, reported at length today in the NYT, of American Douglas McCain in Syria. Several hundred individuals with Western citizenships are thought to be fighting with the extreme Sunni group.

A proposal to expatriate terrorists associated with entities hostile to the United States went nowhere in 2010 when Joe Lieberman’s Terrorist Expatriation Act failed to garner so much as a committee hearing. A similar initiative might have more legs today.

The Lieberman effort had the Times Square bombing as a hook, but that just looked like ordinary crime. (There was also the problem of Joe Lieberman.) The face of the ISIL fighters is way more scary and foreign. They make bin Laden look like Jesse James — criminal, but not unrecognizable. (Bin Laden had a brother who went to Harvard Law School.) Al-Qaeda has a lot of blood on its hands, but it doesn’t go around cutting peoples heads off and tweeting the results.

The U.S. would be following the UK and Canada’s lead, both of which have adopted expatriation measures aimed at citizens fighting in Syria. That gives U.S. legislators some cover on the international human rights front. Even human-rights-pure Norway is looking to follow suit.

That doesn’t mean terrorist expatriation would make any more sense now than it did in 2010. Any punitive intent would be clearly unconstitutional under the Supreme Court’s 1958 decision in Trop v. Dulles. The law would pass the Court’s test only if the conduct was taken to reflect an individual’s intent to relinquish citizenship. In other words, the law would have to work from the calculation that fighting for ISIS evidences an individual’s desire to expatriate.

Beyond the constitutional niceties, it’s not clear what expatriation would accomplish. True, ISIS may look to weaponize adherents with premium Western passports and visa-free mobility. But you couldn’t take away someone’s citizenship for being associated with ISIS before you knew that he was associated with ISIS. Once a citizen is identified as an ISIS fighter, you can bet he gets put on a watch list. That minimizes the threat. There’s no case in which citizenship-stripping adds much to the counter-terror toolbox.

That may not stop legislators from adding expatriation to their rallying calls. Chalk it up to counter-terror showboating. But it won’t be any more than that.

Can the U.S. President Enter into a Legally Binding Climate Change Agreement Without Congress?

by Julian Ku

The New York Times is running a big report today on the U.S. plan to sign a “sweeping” climate change agreement without having to go to Congress for approval or ratification.  Instead of a typical treaty requiring ratification by the Senate, the U.S. has a different more creative strategy.

American negotiators are instead homing in on a hybrid agreement — a proposal to blend legally binding conditions from an existing 1992 treaty with new voluntary pledges. The mix would create a deal that would update the treaty, and thus, negotiators say, not require a new vote of ratification.

Countries would be legally required to enact domestic climate change policies — but would voluntarily pledge to specific levels of emissions cuts and to channel money to poor countries to help them adapt to climate change. Countries might then be legally obligated to report their progress toward meeting those pledges at meetings held to identify those nations that did not meet their cuts.

Jack Goldsmith is already out with a typically smart analysis of this approach, and he concludes the new agreement is intended to sound like a big deal, but will be unlikely to commit the U.S. to do anything meaningful.  I think that is probably right, although I can’t really tell based on the incomplete details in this NYT article.  I think there might be a little bit of domestic legal effect, and may also create an important precedent on what the President can do to bind the US on the international level.

Surely, the President can sign a political agreement that pledges voluntary cuts and to channel money to poorer countries. Such an agreement would have no domestic legal effect until Congress acted to implement the legislation.   But can the President bind the U.S. under international law, even if it has no domestic legal effect?

The President can, in limited circumstances, bind the US under international law via a sole executive agreement.  It has done so especially in the areas of post-conflict settlements such as the famous Algiers Accords that released US hostages and also sent seized Iranian and US assets to an international arbitration tribunal.  US courts have given those agreements limited domestic effect.  But the line between what the President can do via a sole executive agreement and what he must do via a treaty is not completely clear (although there is a line!).  Maybe the President is claiming some delegated authority from the original 1992 Framework Convention, which might bolster his ability to bind the U.S. internationally. I don’t see any obvious basis in that treaty for this delegation, but I suppose experts on the Framework Convention might come up with something.

So I think the President might be able to sign the US up to a binding international agreement on climate change, but it would be pretty unprecedented and its legal effect uncertain.  Such an agreement would be unlikely to have domestic legal effect on its own, but the President could cite the agreement as the basis for executive orders he is already implementing on climate change.  I don’t think it would carry the policy much farther than he is already doing under creative interpretations of the Clean Air Act, but it might provide just a little bit more support for his domestic orders.

I think it will be important to look at the details of the proposed agreement, and to ask the US administration to explain its legal authority for the new agreement.  Will it be the 1992 Framework Convention?  Or is it going to be just the President’s general Article II executive power?  If the latter, this may be an important precedent for future sole executive agreements under the US Constitution.  In any event, President Obama is certainly exploring the outer limits of his Article II powers.

Israel’s Indiscriminate Attack on Shujaiya

by Kevin Jon Heller

On the record, US officials invariably defend even the most indefensible IDF uses of force in Gaza, most often parroting the Israeli line that the IDF does everything it can to spare civilian lives and that Hamas’s use of human shields is responsible for any innocent civilians the IDF does kill.

When speaking anonymously, however, those same officials tell a very different story.

Exhibit A: an absolutely devastating new article in Al Jazeera America about Israel’s destruction of Shujaiya in Gaza, which involved 258 IDF artillery pieces firing 7,000 high-explosive shells into the neighborhood, including 4,800 shells in seven hours. I’m not sure I’ve ever read quite such damning statements about the IDF’s tactics, going far beyond John Kerry’s widely reported sarcastic comment that the attack was “a hell of a pinpoint operation.” Here is a snippet from the article:

Artillery pieces used during the operation included a mix of Soltam M71 guns and U.S.-manufactured Paladin M109s (a 155 mm howitzer), each of which fires three shells per minute. “The only possible reason for doing that is to kill a lot of people in as short a period of time as possible,” said the senior U.S. military officer who spoke with me about the report. “It’s not mowing the lawn,” he added, referring to a popular IDF term for periodic military operations against Hamas in Gaza. “It’s removing the topsoil.”

“Holy Bejesus,” exclaimed retired Lt. General Robert Gard when told the numbers of artillery pieces and rounds fired during the July 21 action. “That rate of fire over that period of time is astonishing. If the figures are even half right, Israel’s response was absolutely disproportionate.” A West Point graduate, who is veteran of two wars and now the Chairman of the Washington, D.C.-based Center for Arms Control and Non-Proliferation, Gard added that even if Israeli artillery units fired guided munitions, it would have made little difference.

[snip]

Senior U.S. officers who are familiar with the battle and Israeli artillery operations, which are modeled on U.S. doctrine, assessed that, based on the rate of artillery fire into Shujaiya overnight Sunday, IDF commanders weren’t precisely targeting Palestinian military formations, as much as laying down an indiscriminate barrage aimed at “cratering” the neighborhood. The cratering operation was designed to collapse the Hamas tunnels discovered when IDF ground units came under fire in the neighborhood. Initially, said the senior U.S. military officer who spoke with me about the military summaries of IDF operations, Israel’s artillery had used “suppressing fire to protect their forward units, but then poured in everything they had — in a kind of walking barrage. Suppressing fire is perfectly defensible — a walking barrage isn’t.”

The Israelis’ own defense of their action reinforced the belief among some senior U.S. officers that artillery fire into Shujaiya had been indiscriminate. That’s because the Israelis explained the civilian casualty toll on the basis that the neighborhood’s non-combatant population had been used as “human shields” because they had been “ordered to stay” in their homes by Hamas after the IDF had warned them to leave.

“Listen, we know what it’s like to kill civilians in war,” said the senior U.S. officer. “Hell, we even put it on the front pages. We call it collateral damage. We absolutely try to minimize it, because we know it turns people against you. Killing civilians is a sure prescription for defeat. But that’s not what the IDF did in Shujaiya on July 21. Human shields? C’mon, just own up to it.”

As I said, stunning stuff. And utterly damning of the IDF — the “most moral army in the world.” It’s just a shame the US government won’t be more open with what it really thinks about the IDF’s actions. Perhaps then Israel wouldn’t feel free to use force against Palestine with impunity.

NOTE: After reading the article in Al Jazeera America, make sure to read Shane Darcy’s important post at EJIL: Talk! discussing a recent decision by Israel’s Supreme Court that upholds the legality of collective punishment.

Weekly News Wrap: Monday, August 25, 2014

by Jessica Dorsey

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

Africa

Asia

Europe

Middle East and Northern Africa

Americas

Oceania

UN

Events and Announcements: August 24, 2014

by An Hertogen

  • International Law in Practice is a four-day programme run by the British Institute of International and Comparative Law (BIICL), which provides a broad introduction to key issues in international and comparative law – from public to private and from commercial to human rights. The course is unique in that it introduces participants to international law, as broadly understood and as it arises in practice. Led by many of the Institute’s leading researchers and practitioners, the course is ideal for those in the early years of legal practice, those working in governmental and non-governmental organisations with legal elements to their work, and students who are about to commence a postgraduate degree in aspects of international law. The course is accredited for 28.5 CPD points. For more details and to book online, please visit www.biicl.org/event/1054
  • On September 18-19, 2014, the Center for International and Comparative Law at the University of Baltimore School of Law and PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order at the University of Oslo Faculty of Law will hold a symposium on “Legitimacy and International Courts,” in Baltimore. The symposium, which will celebrate the 20th anniversary of the Center, will bring together experts on specific courts and tribunals including the ICJ, WTO, ECJ, ECHR, Inter-American Court, ICSID, ITLOS, and ICC and specific themes including democracy, effectiveness, and judicial selection. The goal of the conference and the book to follow is to think comprehensively and comparatively about the legitimacy of international courts and tribunals. What can we learn from the experiences of specific courts and to what extent are lessons from one court generalizable to other courts? The event is free and open to the public. The program is available here. Please RSVP here.​

Last week’s events and announcements 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: August 16-22, 2014

by An Hertogen

This week  on Opinio Juris, we had the final instalments of our Emerging Voices symposium, with a post by Tamar Meshel on awakening the “Sleeping Beauty of the Peace Palace” and one by Mélanie Vianney-Liaud on the controversy surrounding the definition of the Cambodian genocide at the ECCC.

More definitional issues arose in Kevin’s post discussing Britain’s expanded definition on terrorism, which now includes watching the video of James Foley’s beheading.

In other posts, Chris blogged about the quilt maps of sovereignty in the Baarles, Deborah argued why shifting alliances in the Middle East matter, Julian renewed his argument that Argentina has no case against the US in its latest ICJ claim, and Duncan commemorated the 150th anniversary of the first Geneva Convention with the question whether there is new IHL to be made and what is should be.

Finally, Jessica wrapped up the news and listed events and announcements.

Many thanks to our guest posters and have a nice weekend!