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Events and Announcements: November 23, 2014

by Jessica Dorsey

Events

  • italyspractice.info is a website aimed at collecting, categorising and translating into English the practice of the Italian government on issues of international law. Only five months after its appearance, it has registered approximately 7,000 views from all over the world and gathered more than 560 followers. The authors of italyspractice.info firmly believe in this project and their purpose is to develop it further. Thus, they are now organising a conference that will take place in Trento on 27 November 2014, to make their work known, discuss some of its preliminary outcomes and announce its planned expansion. The main goal is twofold: on the one side, to give an account of recent Italian practice on international law by illustrating and commenting upon a number of cases related to Italy’s foreign policy; on the other – and most importantly – to place this practice in the wider context of the role and nature of custom, situating the website in the framework of the ongoing theoretical debate with the help of three well-known experts of customary law and other international guest speakers. The flyer with the full programme of the conference may be downloaded here (.pdf).

Calls for papers

  • Despite the deep infiltrations of international law in the material world around us,
    the relationship between international law and physical objects has not preoccupied international lawyers or international law scholars. By considering international law through a new lens – that of its objects, symbols and images – this project will provide a new way of thinking about international law in terms of its material and visual culture, interrogating the relationship between material objects and objects as purposes.  We invite you to select one image or object, which in your view best represents your area of expertise in international law, or international law as a whole, and to write about its significance in international law.  For more information, please see the call for papers.
  • The 4th annual conference of the Cambridge Journal of International and Comparative Law (CJICL) will be held at the University of Cambridge on 8 and 9 May 2015. The conference theme is Developing Democracy: Conversations on Democratic Governance in International, European and Comparative Law. Conference highlights include a keynote address by Dame Rosalyn Higgins, DBE, QC, former President of the International Court of Justice. More information can be found 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: November 16-22, 2014

by Jessica Dorsey

Over the past week on Opinio Juris, we again enjoyed a lot of different perspectives from our guest bloggers, beginning with Rob Howse, whom Kristen introduced as this week’s featured guest blogger. He highlighted the return of neo-conservativism in Washington, reminded us of Alexandre Kojève’s being a neglected figure in the history of international law and also discussed the breakthrough at recent WTO talks and the trade facilitation agreement this week. He also posted on Liam Murphy’s book What Makes International Law Law?

Additionally, we heard from S. I. Strong announcing that the preliminary results from a recent empirical study on international commercial mediation and conciliation are now available.

Nicolás Carrillo-Santarelli talked about the most recent events in Colombia with the negotiations between the government and FARC rebels being suspended due to the and the kidnapping under IHL, including discussion around the illegality of deprivations of liberty, which sparked quite an intellectual debate in the comments.

A post also came in from Andrea Pin on the Italian Constitutional Court, the International Court of Justice and German war crimes. Duncan French and Jean d’Aspremont co-blogged on the ILC project on the identification of customary international law in summary of the two-day expert level seminar hosted by Lincoln Law School and the Manchester International Law Center.

Roger wrote up his analysis on the Ninth Circuit’s muddled comity analysis in Mujica v. Airscan while Kevin worked out some of his thoughts on the baffling Comoros decision and introduced a new videogame challenging the player to survive as long as possible as a civilian in a war-torn fictional city. Additionally, he introduced and congratulated the newly minted Dr. Mark Kersten.

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

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

The Ninth Circuit’s Muddled Comity Analysis in Mujica

by Roger Alford

Last week the Ninth Circuit issued a controversial opinion in Mujica v. Airscan, Inc., that sharply limits the scope of human rights litigation. The claims in Mujica arose in Colombia and allegedly implicate corporate collusion with the Colombian military. Following Kiobel the common consensus was that Alien Tort Statute litigation would be severely curtailed based on the presumption against extraterritoriality. Not surprisingly, the Ninth Circuit rejected the Plaintiffs’ claims, finding that where the only connection to the United States was the Defendants’ nationality, the claims do not “touch and concern” the territory of the United States with sufficient force to displace the presumption against extraterritorial application.

What is extremely surprising is that the court dismissed the state law claims. Because the court was not exercising supplemental jurisdiction over the state law claims, it could not simply dismiss them without prejudice to be filed in state court. As with almost every other common law tort claim brought in federal district court based on diversity jurisdiction, I fully expected the Ninth Circuit in Mujica to apply California choice of law principles to resolve the claim. (For a detailed analysis of choice of law in the human rights context, see my article here).

As set forth by the California Supreme Court in Kearney, California’s comparative impairment analysis considers whether there is a true conflict between the affected states and applies “the law of the state whose interest would be the more impaired if its law were not applied.” California courts generally favor forum law when (1) the forum has an interest in the dispute and the laws of other affected jurisdictions are not different or (2) when the laws are different and the interests of the forum would be more impaired than the interests of the other jurisdiction. Otherwise they apply foreign law. Applying California choice of law, the Ninth Circuit exercising diversity jurisdiction ordinarily would retain jurisdiction of the state law claims and resolve them under Colombian law (as the government with the greatest interests at stake). The whole purpose of Brainerd Currie’s government interest approach (adopted by the California courts) is to exercise jurisdiction in a manner consistent with the legitimate government interests of the relevant stakeholders.

That is not what the court in Mujica did. Instead it relied on a novel prudential comity analysis to dismiss the claims. It first distinguished between prescriptive and adjudicatory comity, and concluded that Hartford Fire’s “true conflict” approach was inapplicable. Fair enough. But then it applied the comity factors enunciated in Restatement Section 403, which also applies to prescriptive comity. So the “true conflict” approach in Hartford Fire does not apply because that is relevant only for prescriptive jurisdiction, but the limitations on prescriptive jurisdiction in Section 403 do apply in balancing factors under adjudicatory comity. Very strange.

With due credit to my conversations with Trey Childress and Bill Dodge yesterday, if the court was going to invoke adjudicatory comity, it should have relied on the Supreme Court’s decision in Colorado River and appellate court decisions such as Royal and Sun Alliance, Ungaro-Benages, and AAR International. Indeed, the Ninth Circuit’s decision in Neuchatel Swiss General specifically addressed adjudicatory comity and held that courts should not dismiss on the basis of adjudicatory comity except in “exceptional circumstances.” Those cases strongly suggest that adjudicatory comity applies only in exceptional circumstances and only when there is a pending foreign proceeding. The Ninth Circuit in Mujica completely ignored binding Supreme Court and Ninth Circuit precedents.

So what the court should have done in a case of diversity jurisdiction with significant foreign contacts is apply California’s choice of law principles to resolve the common law claims. That almost certainly would have resulted in the application of Colombian law, especially Title XXXIV of the Colombian Civil Code. (The Court could not dismiss the case based on forum non conveniens because the district court already determined that there was not an adequate alternative forum, and that question was not on appeal.) With no other avenues for dismissal, the Ninth Circuit dismissed the claims on the basis of a muddled application of adjudicatory comity, leaving the plaintiffs with no obvious means of redress anywhere.

I have written at length about the rise of transnational tort litigation and the application of choice-of-law principles as the logical response to Kiobel. The Ninth Circuit’s decision in Mujica seems to suggest that that approach is perfectly fine for the typical wrongful death claim involving foreign contacts or parties. But if it is a human rights claim dressed up in the guise of a wrongful death claim, then at least two members of the Ninth Circuit will bend over backwards to dismiss it.

I would be quite surprised if this case is not reconsidered by the Ninth Circuit en banc.

What Makes (International) Law Law? Liam Murphy

by Robert Howse

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris. His first post can be found here; his second, here and his third here.]

Today at NYU law we are having a panel discussion, and celebration, of my colleague Liam Murphy’s recent book, What Makes Law Law? (I’ll be racing down from Fordham University, where I’m talking about my own book, Leo Strauss Man of Peace). Liam’s work is important for international legal scholars, because-despite many good answers-the field has been haunted by crude positivist doubts as to whether international law is really law at all, or, if it is, its character as legality really matters to real world outcomes (as opposed to its sometimes asserted nature as political rhetoric or moralizing). Usually, the doubts related to enforcement-can international law really make a state, or indeed anyone, do something that they don’t want, or need, to do for other reasons?

It is revealing, and perhaps provocative statement in relation to those crude positivist views, that the chapter of Liam’s book that bears the title of the book is in fact a discussion of “law beyond the state”. Liam begins from the much neglected short chapter on international law in Hart’s The Concept of Law, where Hart actually uses international law as an example for the proposition that centralized enforcement and interpretation are not essential elements of a legal system. What is essential is a certain level of systemic integration and coherence, and here Liam faces head on the so-called “fragmentation” of international law. He writes: “At the normative level, the question is whether there remains a coherent overall normative structure to international law that can accommodate “the diversification and expansion” of international law and provide legal grounds to resolve conflicts.” At the risk of some oversimplification, and skipping the rich texture of the analysis, in short, Liam’s answer is: maybe. He points, for instance, to the systemic integration function of the rules in the Vienna Convention on the Law of Treaties. I would add that both the activity of the ILC as well, at a more basic level, the articulation of the sources of international law in Article 38 of ICJ Statute, perform such a function. Liam cites some of my work with Ruti Teitel on these issues (“Beyond Compliance”). In another piece, “Cross-Judging“, Ruti and I try to show how different tribunals in different fields of international law increasingly speak to each other, directly or indirectly, disagreeing sometimes, but presupposing common ground about what is an international legal argument or what counts as international legal discourse. Indeed, even if one goes back to Thucydides, it is fairly clear there to the relevant actors, ambassadors, generals etc. where an international legal argument is being made vs a general moral argument or a power-political claim, or appeal to interests.

As for enforcement, Liam rightly notes that the issue is not the actual level of enforcement, but whether the norms of international law are the kind of norms that one thinks can justifycoercion, or are appropriate for coercive sanctions. This is Kant’s point in distinguishing the realm of “right” from that of “virtue”. This is an important distinction, and it is crucial to be clear on it, as the skeptical scholarship of theorists like Posner and Goldsmith tends to obscure it. Since we can never know whether an individual, much less a collective such as a state, is acting purely from considerations of legality alone (again Kant), it is absurd to test whether international law is law, by asking for proof that international legality has caused a state to behave in a manner that it would not have behaved in, from other considerations or motives. This is the kind of test that international law skeptics like, because international legality is bound to fail it. But that’s the case for all legal norms.

Not just the chapter on law beyond the state but the book as a whole is a commendable read for international jurists.

Guest Post: empirical study on international commercial mediation and conciliation

by S I Strong

[S.I. Strong is Associate Professor of Law and Senior Fellow, Center for the Study of Dispute Resolution at the University of Missouri.]

I wanted to let you know that the preliminary results from a recent empirical study on international commercial mediation and conciliation are now available.  The study, which is entitled “Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Relating to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation,” collected detailed data on 34 different questions from 221 respondents from all over the world. Survey participants included private practitioners, neutrals, in-house counsel, government lawyers, academics and judges with expertise in both domestic and international proceedings.

This information was gathered to assist UNCITRAL and UNCITRAL Working Group II (Arbitration and Conciliation) as they consider a proposal from the Government of the United States regarding a possible convention in this area of law. The U.S. proposal will be considered in depth at the Working Group II meeting in February 2015.

Those who would like to see a copy of the preliminary report can download a free copy here.  The data will be further analyzed in the coming months and published sometime next year as an article.

Many thanks to those from Opinio Juris who participated in the survey and who helped distribute it among their networks.  If you have any questions about the preliminary report, please feel free to let me know at strongsi [at] missouri [dot] edu.

The Breakthrough in WTO Talks and the Trade Facilitation Agreement (TFA)-Far from Meaningless

by Robert Howse

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris. His first post can be found here and his second, here.]

At International Economic Law and Policy Blog, where I’m a regular, I’ve been blogging for a while about the impasse in WTO Doha round negotiations and how to break through it. See here and here India has learned from the way developed countries operated in the previous Uruguay Round of negotiations, linking different issue areas or agreements, so for example rich nations could get developing countries to agree to TRIPs (intellectual property rules), on the basis that they had to do it to get something on agriculture, etc.  So, in this round, the Indians have insisted that implementing trade facilitation (mostly a developed country demand) depends on protection against WTO challenge for food security programs like India’s food subsidies for its poor.

With a bilateral deal between India and the US last week on food security, there is now the opportunity to move forward to complete the package negotiated in December 2013 at the Bali WTO Ministerial, and then, beyond that, to strike further deals that make the WTO as a negotiating forum relevant to the issues of today and tomorrow.  Reflecting the diversity of the WTO’s membership, some of these accords will be plurilateral, not binding all Members, but rather in the manner of “coalitions of the willing”, but still  (at least eventually) under the WTO umbrella, using its well-developed dispute settlement system and institutional framework.  Thus, another bilateral accord in recent weeks, between the US and China, will allow the Members involved to push forward with a new version of the plurilateral Information Technology Agreement (ITA).  At the same time, negotiations on liberalization of green goods have been happening in Geneva, another plurilateral initiative, where US leadership has been crucial (Canada’s WTO Ambassador, Jonathan Fried, has also given these talks a big push).

So, contrary to what the pessimists have been saying, the WTO is far from dead these days.  But some are claiming that the recent breakthrough is in fact trivial and disguises the virtual irrelevance of the current WTO agenda.  Financial Times journalist Alan Beattie, writing yesterday on one of the FT’s blogs, claims that reaching agreement with India on food security in order to push forward on the Trade Facilitation Agreement is hardly a victory, at all but perhaps a defeat in disguise.  Part of  Beattie’s argument is that the TFA is an unimportant accord, which has been blown up in significance because other elements of the Doha round agenda proved largely impossible to move forward on (such as genuine reform of rules on agriculture).   So what is the real story about trade facilitation?  Beattie is more wrong than right, and here’s why.

First of all, a little explanation of the jargon.  Trade facilitation is about improving customs administration, and the necessary infrastructure to move goods across borders.  Sounds boring, but the losses to otherwise efficient trade from these kinds of bottlenecks at the border, whether do to as corruption and incompetence, or just inadequate resources or out-of-date technology, are real.  One may question whether, however, the WTO, or indeed any set of legal rules, is up to tackling this kind of issue: it seems more a matter of institution-building, support for new technology and infrastructure, and rule of law/governance activities such as training of officials and redesign of domestic agencies.  In other words, if anything, the World Bank’s and regional development banks’ sort of thing, not the WTO’s.  Thus, I myself have in the past expressed skepticism about how much the WTO can do in this area.  (An excellent guide to the TFA by Ole Miss law professor Antonia Eliason can be found here).

Yet, as Ruti Teitel and I have argued in our essay “Beyond Compliance,” (more…)

Guest Post: The Suspension of the Colombian Peace Talks and the Illegality of the Deprivation of Liberty of Members of State Armed Forces in Non-International Armed Conflicts

by Nicolás Carrillo-Santarelli

[Nicolás Carrillo-Santarelli is a Colombian lawyer, PhD on international law and international relations. He works as a researcher and lecturer of Public International Law at the Autónoma de Madrid University.] 

Introduction

Colombian President Juan Manuel Santos announced on Monday, November 17,2014, that the negotiations between the Colombian Government and the FARC guerrilla seeking to reach a peace agreement were suspended because of information that the FARC kidnapped a Colombian general, an officer, and a lawyer (see here and here [in Spanish]).

While the reaction of the non-state armed group is yet to be seen, it is interesting to take into account its likely position regarding the type of conduct it is accused of having perpetrated. On Sunday November 9, 2014, the FARC kidnapped two Colombian soldiers, called César Rivera and Jonathan Andrés Díaz, but claimed that, in its opinion, far from breaching international humanitarian law, the group acted in accordance thereof. The FARC considers the soldiers to be captured as ‘prisoners of war’ and claims to have treated them in accordance with humanitarian principles by respecting their rights to life and integrity (Spanish) (it must be noted that, in the past, those deprived of their liberty by the FARC have notoriously been treated in an inhuman fashion and to the detriment of the enjoyment of their human rights [see here and here]).

Illegality of all deprivations of liberty attributable to non-state armed groups during non-international armed conflicts

It is important to examine if the claim of the FARC can be consistent with international law: namely, whether a non-state armed group can deprive individuals of their liberty during non-international armed conflicts under International Humanitarian Law (IHL). If the victims are civilians, the answer is clearly a negative one. Furthermore, in a scenario as the Colombian one, in which many civilians have suffered the deprivation of their liberty and their being placed in harsh conditions and treated cruelly or even killed at the hands of the guerillas, which have also extorted money as a condition to release some of them, it can be said that those deprivations of liberty have been carried out “as part of a widespread or systematic attack directed against any civilian population”, and so that those who perpetrate them commit a crime against humanity, according to article 7.e of the Rome Statute of the International Criminal Court. From the point of view of human rights law, it can also be argued that the conduct in question amounts to a violation of those rights (and if it is accepted that non-state entities have human rights obligations, the armed groups would breach them as well).

When it comes to the legal analysis of the deprivation of liberty of members of the Colombian armed forces by the FARC, it is important to begin by noting that the regulation of international and non-international armed conflicts is not always identical or even similar. In fact, applying the rules of the former to the latter may sometimes be problematic, being this one of those events. In this regard, while treaty and customary norms permit the detention of prisoners of war during international armed conflicts, as Rule 99 of the Customary IHL Database of the International Committee of the Red Cross (ICRC) indicates, there is no indication that such a rule is applicable in non-international armed conflicts. In fact, the aforementioned rule, dealing with deprivation of liberty, when discussing non-international armed conflicts, focuses on the human rights standards governing the deprivation of liberty attributed to States, stressing that it must be lawful and non-arbitrary; and so implicitly indicates that there is no legal authorization for non-state armed groups to deprive anyone of his or her liberty or to detain them. In doctrine, this is confirmed by the analysis of conflicts such as the Israeli-Palestinian one, regarding which it has been said that: (more…)

Alexandre Kojève, a Neglected Figure in the History of International Law

by Robert Howse

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris. His first post can be found here.]

After a long period of relative neglect of such studies, there’s a boom in scholarship in the history of international law, as Alexandra Kemmerer noted at Voelkerrechtsblog early this fall. Kemmerer suggests, rightly, that disciplinary boundaries limit the full potential of historical studies to illuminate the genesis and sources of the international legal world in which we live. A true example of this is Alexandre Kojève, the French-Russian philosopher whose left-wing Hegelianism inspired a crucial generation of postwar Paris intellectuals, including figures such as Queneau, Lacan and Merleau-Ponty.  Kojève wrote (though rarely published in his lifetime) works on religious thought (including inquiries into Eastern religions), on the meaning of abstraction in art (he was Kandinsky’s nephew), on determinism in modern physics, on Hegel’s Logic, and a three volume history of ancient philosophy.  Kojève’s famed debate with Leo Strauss about the world state, On Tyranny, is the subject of a chapter in my recent book Leo Strauss Man of PeaceSo obviously Kojève defied, and his oeuvre defies, all normal disciplinary or specialization boundaries.

Almost hidden in all of this, however is an important volume of legal philosophy, Outline of a Phenomenology of Right. It was written when Kojève was in Marseilles during World War II, working in the French resistance, but only published long after his death, at the initiative of the great French public intellectual and cold war liberal Raymond Aron  (With Bryan-Paul Frost, I’ve produced a translation, and interpretive commentary). The Outline deserves the attention of scholars of international law in part because of its distinctive argument that globalization of law’s destiny-arguing less from the philosophy of history, though that’s always in the background, but principally from a view of the intrinsic nature of legal order, and the human ideal it seeks to realize.  Kojève’s argument is that a universal legal order-with however important components of what we would call “subsidiarity” or federalism-will emerge through mutual recognition between judges and regulators and the (partial) harmonization of laws that is entwined with recognition.  He imagined a form of globalization that would entail important elements of social justice, a conception of equal citizenship as including social and economic rights.  It is interesting to compare Kojève’s idea of recognition and global justice with that developed by Emmanuelle Jouannet in her recent book, What is a Fair International Society?, which has just been reviewed by Ruti Teitel in EJIL.

But, believe it or not, there’s lots more. This very same Kojève also happens to have been one of the main legal architects of the GATT; as Irwin, Mavroidis and Sykes note in their study of the GATT’s origins, he was head of the legal drafting sub-committee.  At the time Kojève was a French official, who would also work with Robert Marjolin among others on the design of the European Community (now Union).  Kojève tried to influence the development of the GATT in a direction contrary to the mercantilist or proto-neoliberal tendencies of the Anglo-American negotiators.  He designed proposals for a global commodities facility, and was at the forefront of efforts to provide a special regime for developing countries, which Kojève conceived as a kind of reversal of colonialism, with new rules that would switch around the terms of trade between developing countries and the former imperial powers in the developing countries’ favor. He was apparently known as the “serpent” by the American GATT team, one former ambassador told me, because his dialectical brilliance could run rings around those who challenged his position in Geneva discussions. Looking at Kojève’s role is useful in helping us understand that there were highly informed alternative views of the international trading system at the Geneva table during the formative years; this contrasts with the impoverishment that came with the adoption of a basically neoliberal outlook by the increasingly closed “epistemic community” that produced the WTO, and the legitimacy crisis of global economic governance that followed not long after the WTO’s founding. Remarkably, no in-depth study has been done of Kojève’s place in postwar international economic lawmaking and diplomacy; a few years back I spent some weeks in archives in Paris, preparing the initial groundwork for such a study.  But it would require quite a few interviews as well much more archival work, including at the GATT itself, to do the job properly. I hope there’s someone out there reading this who will beat me to it…

Guest Post: Tearing Down Sovereign Immunity’s Fence–The Italian Constitutional Court, the International Court of Justice, and the German War Crimes

by Andrea Pin

[Andrea Pin is senior lecturer at the University of Padua, where he teaches constitutional law, comparative public law, and Islamic law. He is also a fall 2014 Kellogg visiting fellow at Notre Dame.]

A few weeks ago, the Italian Constitutional Court’s decision no. 238 of 2014 struck blows to the theory and practice of sovereign immunity, the International Court of Justice (ICJ), German-Italian relationships, and even the Italian Government. On October 3, 2012, the ICJ decided that the customary sovereign immunity from jurisdiction protects Germany from suits brought before Italian domestic courts seeking compensation for Nazi crimes perpetrated in Italy during World War II.

Later on, new suits were filed against Germany in Italian domestic courts. This time, Italian judges requested a preliminary ruling from the Italian Constitutional Court to ascertain if the sovereign immunity protection, as crafted by the ICJ, was against the Italian Constitution. If the Court found that such immunity violated the Constitution, the judges would process the suits.

The Constitutional text proclaims that “The Italian legal system conforms to the generally recognised rules of international law” (Art. no. 10). International customary law falls in this category and therefore prevails over incompatible domestic legal provisions. But there has always been a caveat: the generally recognized rules of international law cannot be enforced in Italy if they conflict with the supreme principles of the Constitution. This is the doctrine of counter-limits, which the Constitutional Court shaped with special regards to the European Union integration: according to this doctrine, core constitutional values would set exceptional boundaries to the domestic enforcement of EU laws, which can ordinarily subordinate constitutional provisions.

The hypothetical non-enforcement of international law for violating a supreme constitutional value had never become reality—until now. The 2014 decision of the Constitutional Court found that Art. no. 24 of the Constitution (“All persons are entitled to take judicial action to protect their individual rights and legitimate interests”) encapsulates a fundamental principle of the Constitution. Therefore, the Court blocked the application of sovereign immunity from jurisdiction, and allowed the referring Italian judges to proceed with the relevant trials.

This unprecedented decision surely is in conflict with the ICJ Statute. In fact, the Italian Court consequently struck down the pieces of Italian legislation that commanded the enforcement of the ICJ’s judgments in cases of gross human rights violations as well. But it will also create some turbulence in the relationships between Italy and Germany.

The Constitutional Court’s decision, finally, is in conflict with the Italian Government’s attitude. After the ICJ’s judgment, the Government signed and had the Parliament execute the New York Convention on Jurisdictional Immunities of States and Their Property (2004). This Convention confirmed the ICJ’s approach to sovereign immunity: practically speaking, after losing at the ICJ, the Italian State happily legitimized Germany’s jurisdictional immunity. The Constitutional Court also needed to quash these pieces of Italian legislation. (more…)

Congratulations, Dr. Kersten

by Kevin Jon Heller

Mark Kersten, creator of Justice in Conflict, long one of the most important blogs in international criminal justice, successfully defended his thesis yesterday at the LSE. Heartfelt congratulations, my friend!

And, of course, now that Mark has the word “Dr.” in front of his name, we can finally take him seriously.

The Return of the Neocons (and their Scorn for International Law): A Sword without a Strategy

by Robert Howse

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris.]

According to Jacob Heilbrunn, the editor of The National Interest, the neocons are about to make a spectacular comeback in American foreign policy.  Writing about the midterm elections in the Financial Times last Friday, Heilbrunn observed: “the Republican party is resurrecting the unilateral foreign policy doctrines that first took hold under President George W Bush and his vice-president Dick Cheney.” So let’s take a hard look at the weapons the neocons have in their arsenal these days.

The first, as Heilbrunn notes, is Barack Obama, or more precisely discontent with his apparently reactive and hesitating approach to foreign and security policy, exemplified by situations such as Ukraine, Syria and the rise of ISIS.  If you read the fine print, to the extent there is any, the neocons like Cheney and Bill Kristol don’t have any master plan or worked out strategy of their own for dealing with these problems.  They appeal to the heartwarming (for some Americans) fantasy that, if the United States simply drops enough bombs and puts enough boots on the ground, victory over the forces of evil will prevail.  In this fantasy world, every apparent failure of intervention–Afghanistan, Iraq–can be explained by not enough American force being applied.  Consider Bill Kristol’s approach to ISIS: “What’s the harm in bombing them at least for a few weeks and seeing what happens?” This is the key logic:force has got to be better than no force, a sort of dogmatic inversion of pacifism. Of course, Kristol’s remark also speaks volumes to the neocons’ stance toward international law.

Then there is Senator-elect Tom Cotton.  As Heilbrunn notes,”Perhaps no one has been more impassioned in their support of the foreign policy of George W Bush than Tom Cotton.” Cotton, 37 years old, is the neocon wet dream.  After Harvard College (where he wrote for the Crimson, citing intellectual idols Allan Bloom and Leo Strauss) and Harvard Law School, Cotton signed up for the military insisting that he be sent into combat in Iraq.  While, as the legend goes, the army urged him toward a JAG-type position, Cotton would have none of it:  he had little interest in the laws of war, he wanted to fight one.  Cotton is perhaps the most credible of any of the neocons–he, at least, chose to risk his life in the war that he praised as “just and noble”.  He has also (at least somewhat) distanced himself from the main neocon strategy of withering attacks on Barack Obama, calling on Republicans to support the President’s plan for use of force in Syria and rather nobly lecturing partisan Republican conservatives: “we have one commander in chief at a time, and the United States is weakened if our presidency is weakened. No matter the president’s party or his past failures, all Americans should want, and help, him to succeed when it comes to our national security.”   While he shares the outlook of the ideological and partisan neocons, offering his conviction that America can and should seek “victory” in Afghanistan and Iraq, my hunch is that, given that he has had the responsibility as a soldier for the lives of men and women in combat, Cotton may actually prove a constructive and moderating force behind the scenes, if he does not consume too much energy in battles with the isolationist Rand Paul wing of the Republican Party.

(more…)

Rob Howse Guest Blogging This Week

by Kristen Boon

It’s my pleasure to announce that Rob Howse will be guest blogging on Opinio Juris this week.  Rob is the Lloyd C. Nelson Professor of International Law at NYU, and a specialist in international trade and investment law.  He is also the author of a new book in political philosophy entitled Leo Strauss Man of Peace published by Cambridge.   A great interview with Rob on the book can be found here.

As his CV attests, Rob is both a prolific scholar and an active practitioner who has been involved in  a wide range of cutting edge legal disputes.  It is our pleasure to welcome Rob to Opinio Juris this week.