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For More Effective Sanctions, Time to Examine Question of Termination

by Kristen Boon

Over the last two decades, the key policy question surrounding multilateral sanctions has been effectiveness. Because of studies that suggest that sanctions are effective only about one-third of the time, there has been a concerted effort to develop so-called “smart sanctions,” which increase the effectiveness of Security Council sanctions at the front end by targeting specific groups, individuals, and entities. See, for example, reports here and here that detail the shift away from comprehensive sanctions towards targeted sanctions on the basis of effectiveness.

The emphasis on targeting at the front end, however, has overshadowed an important back-end question that is equally important to effectiveness: termination. This policy lacuna is significant because, once imposed, sanctions tend to stick. Indeed, my research shows that Security Council sanctions tend to last considerably longer than sanctions imposed by regional organizations, and that shorter sanctions episodes are often more effective. In other words, sanctions of long duration may detract from their effectiveness.

Since the end of the Cold War, sanctions have emerged as one of the Security Council’s primary tools for conflict management. Over this period, the objectives of Security Council sanctions have become increasingly ambitious. Although the measures of targeted sanctions are today quite standard, and usually include an arms embargo, asset freeze, and commodity sanctions, the objectives to which those measures are applied can be wide ranging. For example, the objectives of ongoing sanctions today include ending recruitment and targeting of women and children in conflict situations; the protection of civilians; the observance of human rights and international humanitarian law; and longer-term reform of national institutions such as the police, the security sector, and the justice system.

This new generation of sanctions, with their broad goals and transformative objectives, requires new thinking about termination policies. At present, the termination of sanctions is approached in one of three ways: a defined sunset clause, a commitment to review, or an indefinite term. There is no standard policy with regard to which model is used when, although the pattern that has emerged is that sunset clauses of 12–18 months are used in conflict management situations, whereas indefinite sanctions are more likely to be applied where the focus is international security, terrorism, and non-proliferation.

The choice between time-bound or indefinite sanctions is a political one. In 2004, David Cortright and George Lopez reported that time limits were a divisive issue for the Chowdhury working group (an informal working group on Security Council reform), finding that some nations vigorously opposed them, while others wanted to maintain indefinite pressure on recalcitrant regimes.

Clear termination policies are relevant to sanctions’ effectiveness for two reasons. First, targeted sanctions that contain clear objectives can shorten conflict cycles. Because sanctions work best as a means of persuasion and not punishment, a powerful inducement is to provide incentives for compliance with criteria for lifting sanctions. Clear termination policies aid in this goal. Second, shorter sanctions should be encouraged. The incentive to comply will be strongest when narrow, and decisive, sanctions are imposed and carefully managed, in comparison to measures that languish without effecting a change in behavior.

In Sudan, for example, there is a general consensus that the sanctions imposed under Resolution 1591 in 2005 have stalled. There have been no new listings since 2006; no consensus on harmonizing the existing sanctions with a parallel ICC investigation; and little evidence that the sanctions have aided the victims of the ongoing conflict. It is time to consider a sunset clause: wind down these sanctions that are widely viewed as ineffective, and turn to a different method of diplomacy, coercion, conflict management, or even a new and refined set of sanctions.

A related issue is the duration of particular measures under an existing sanctions regime. Refocusing sanctions to better manage the timeline of particular measures would improve effectiveness. For example, does the ongoing arms embargo against al-Qaeda make sense when the real threat appears to be coming from regional spin-off groups? In comparison, efforts to impose narrowly targeted sanctions against al-Shabaab in the Somalia/Eritrea regime or Yemeni al-Qaeda affiliates under the Yemen sanctions are a step in the right direction.

The availability of an internal review process, such as the UN Ombudsperson’s Office, which has the power to consider de-listing requests from those under the al-Qaeda regime, will be relevant to which termination policy is chosen. Although I argue that the default should be short and managed sanctions cycles with defined sunset clauses, an ongoing review process where individuals and entities can bring de-listing claims and are afforded due process protections could justify open-ended sanctions or sanctions subject to review.

Criteria for the termination of sanctions regimes are as essential to the effectiveness of sanctions as intelligent sanctions design. While it is recognized that better targeting may help to shorten conflict phases, the relationship between well defined goals, incentives to encourage compliance, and terminating sanctions regimes has been overlooked. When the objectives of a sanctions regime are met, the sanctions should be amended, repealed, or terminated as soon as possible. This can be achieved through a renewed debate over the policies on sanctions termination and the start of a new dialogue about the best practices of termination.

Want to read more?  Please see my new IPI report entitled Terminating Security Council Sanctions.  This article was first published on the Global Observatory.

 

Marshall Islands Sues to Enforce Nuclear Non Proliferation Treaty; UK May Be Dragged Into ICJ

by Julian Ku

This lawsuit is mostly just grandstanding by a very small nation with the help of a savvy (but sloppy) US law firm.  But there is one possibly meaningful outcome.  It could result in an ICJ proceeding involving the United Kingdom.

The tiny Pacific nation of the Marshall Islands is taking on the United States and the world’s eight other nuclear-armed nations with an unprecedented lawsuit demanding that they meet their obligations toward disarmament and accusing them of “flagrant violations” of international law.

The island group that was used for dozens of U.S. nuclear tests after World War II was filing suit Thursday against each of the nine countries in the International Court of Justice in The Hague, Netherlands. It also was filing a federal lawsuit against the United States in San Francisco, naming President Barack Obama, the departments and secretaries of defense and energy and the National Nuclear Security Administration.

Reviewing the complaint and the ICJ applications, I conclude these cases are (mostly) going nowhere.

As for the U.S. complaint, the Marshall Islands is suing both the United States itself, and its President, and various military and civilian departments.  As an initial matter, there should be grave doubts about whether the NPT is self-executing. It is hard to imagine that it is.  And there are some grave doubts as to whether the U.S. has waived its sovereign immunity for this kind of claim in its own courts. And there are a variety of other problems: standing? political question? justiciability? that will no doubt make themselves felt here.

With respect to the ICJ applications, none of the target countries have accepted ICJ compulsory jurisdiction except the UK.  Indeed, the ICJ application against China mistakenly refers to it as the “Republic of China”, which is the name of the government in Taiwan, not China. I think Taiwan would be thrilled to be sued here, since they are not even allowed to join the ICJ or the U.N.  The China they want is the “People’s Republic”.

Putting both Chinas aside, the key here is that the UK has accepted compulsory jurisdiction of the ICJ, so this might require the UK to litigate this.  This seems like the one aspect of this case that might come to a real judicial outcome.

So if we get to the merits, I am deeply dubious.   What exactly is the “obligation to negotiate in good faith”? How can you ever tell if it has been violated?  The affidavit by Prof. Weston of the University of Iowa gives some content to this idea, but I don’t find it very persuasive.  

My basic thought is that this case is going nowhere, but will get some attention of the UK is forced to show up at the Hague and argue the merits.  Only then will we get to see if Prof. Weston’s idea tested by the ICJ.

Guest Post: Argentina v. NML Capital – Does the Foreign Sovereign Immunities Act Mean More Than It Says?

by Michael Ramsey

[Michael D. Ramsey is the Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego Law School. Professor Ramsey previously prepared an analysis of this case for the Judicial Education Project, for which he was compensated.]

The Supreme Court considered on Monday whether a U.S. court can order disclosure of Argentina’s worldwide assets.  Perhaps surprisingly, the answer should be yes.

The underlying facts of Republic of Argentina v. NML Capital are straightforward.  Argentina issued bonds, which were bought by private investors including NML, and then defaulted.  In the bond contracts, Argentina waived its sovereign immunity and consented to jurisdiction in New York.  After the default, NML sued Argentina in New York, as the bond contracts contemplated.

The Foreign Sovereign Immunities Act (FSIA) says that foreign governments can be sued in the U.S. only in circumstances listed in the statute.  One of those circumstances is when the sovereign waives its immunity by contract.  So there’s no question that NML could sue Argentina.

The question, rather, is what NML could do once it won (as it did) and Argentina still refused to pay (as it did).  The FSIA also says that creditors cannot execute on (seize) foreign sovereign assets in the United States to satisfy a judgment unless the assets are being used in a commercial capacity.  NML asked the trial court to order two New York banks that handle Argentina’s finances to disclose what they knew about Argentina’s assets (commercial or otherwise).  Argentina, supported by the U.S. executive branch, claims this violates the “spirit” of the FSIA.

It doesn’t.  The FSIA (Section 1609) specifically protects non-commercial sovereign assets only against “arrest attachment and execution.”  It does not say assets are immune from disclosure.  There’s a good reason it doesn’t: to figure out which assets are used for commercial purposes, and thus subject to execution, first one needs to know what assets exist.  It obviously won’t do to have Argentina – or Argentina’s bankers – make an unreviewable judgment as to which assets are commercial and not disclose the others.  And in other respects, the FSIA (Section 1606) says, a non-immune sovereign shall (subject to exceptions not relevant here) “be liable in the same manner and to the same extent as a private individual under like circumstances.”

Thus, as a number of Justices appeared to recognize at oral argument, the key law isn’t the FSIA but Rule 69 of the Federal Rules of Civil Procedure, which govern ordinary litigation in federal court.  Rule 69 allows a federal court to order discovery in support of execution, which is what the trial judge did here.  The rule doesn’t have any limits on the type of property or the geographic limits – rather, its leaves the matter to the discretion of the court.  In private litigation, courts acting under Rule 69 routinely require disclosure of assets outside the jurisdiction or arguably not subject to execution.

At oral argument, some Justices seemed troubled that Argentina (or other sovereigns) might have to disclose the location of sensitive diplomatic or military assets.  It’s a fair concern, but no reason to make the FSIA say something it clearly does not.  First, district courts are adept at balancing all sorts of competing interests that arise in discovery disputes and in allowing only discovery appropriate under the circumstances; Rule 69 gives them plenty of discretion to do so.  Second, the only disclosures the trial court required here are of financial transactions (and the order isn’t even directed to Argentina, but rather to third-party banks); no one is asking Argentina to disclose the location of, for example, specific military assets.  And third, presumably disclosures could be made confidentially to the court as needed for particular assets.

Moreover, NML claims that Argentina has shown its willingness to abuse institutions like the Bank of International Settlements to shield its assets from creditor judgments.  That’s what NML’s attorney Ted Olson was speaking of when he said at one point during Monday’s proceeding that Argentina could slap an air-force label on a commercial airplane in order to shield that asset.  He wasn’t talking about NML attaching non-executable assets, he was simply pointing out the danger of creating loopholes in the discovery process that would allow Argentina to deny discovery on assets that creditors would be entitled to.

This goes to the heart of why NML has a need for the disclosures.  Argentina has openly refused to pay the judgment against it.  NML is entitled to execute on Argentina’s commercial assets in the United States, and may be able to execute on some non-commercial assets elsewhere (in jurisdictions that lack the U.S.’s commercial limit).  To do so, it needs to know what assets exist, and it cannot rely on Argentina’s self-reporting of which assets are commercial.

Ultimately the rule of law, especially in international transactions, depends on courts holding parties to their promises and providing a way to enforce judgments.  If Argentina didn’t want to be subject to U.S. court enforcement, then it should not have waived its immunity and consented to jurisdiction (but, of course, then it would have had much more difficulty selling its bonds).  Argentina could still avoid unwanted disclosures by doing what it is supposed to do anyway: pay the entirely valid judgment against it.

The rule of law also depends on courts reading statutes to mean what they say, and not more than they say.  Argentina is asking the Court to find an immunity in the FSIA that simply isn’t there.  Argentina’s protection instead comes from Rule 69 – but it’s a protection that rests largely with the lower court, which knows the case better and is better able to balance competing equities on an on-going basis than the Supreme Court.  It may be helpful for the Court to ask district courts to use careful discretion in managing disclosure requests directed at a foreign sovereign under Rule 69. For instance, the Justices could recommend that district court judges ask the sovereign to create a privilege log (or a similar mechanism) for those assets, such as military property, that are extra-sensitive. This would balance the interests of the sovereign and the creditors. But creating a blanket protection against disclosure of assets under the FSIA is contrary to both the statute and the needs of the international rule of law.

Alter Book Symposium: Comment by Jacob Katz Cogan

by Jacob Katz Cogan

[Jacob Katz Cogan is the Judge Joseph P. Kinneary Professor of Law at the University of Cincinatti College of Law]

At the beginning of the fourth chapter of her new book The New Terrain of International Law: Courts, Politics, Rights, Karen Alter asks: “why [are] there . . . more international courts today than at any point in history”? (112). It is an interesting and important question. Seeking to “provide[] a partial explanation for the trends” in the proliferation during the past twenty-five years of the “new-style international courts” (which she documents in the preceding chapter), Professor Alter reviews “World History and the Evolving International Judiciary” (112). She argues, in short, that “at the end of World War II governments were able to reject proposals for compulsory international judicial oversight of their behavior” (112). Even so, “[c]hanges in legal practice in the United States and Europe during and after the Cold War meant that foreign legal and quasi-legal bodies increasingly adjudicated allegations of economic and human rights violations abroad” (112). Thus, “[g]iven the choice of European and American judicial review or international judicial review, many governments preferred [the latter] especially because international initiatives . . . created added incentives for governments to show progress toward democracy and human rights protection by embracing binding rules and international legal oversight” (113).

To make this argument, Professor Alter begins by dividing up the past hundred-plus years into three “critical junctures”: the Hague Peace Conferences, the end of World War II, and the end of the Cold War. She focuses in particular on the last two periods, taking each in turn. Her review of those eras recalls global as well as regional initiatives – the latter divided into (Western) Europe, Latin America, Africa, and Asia and the Middle East – recounting the successful, if uneven and oftentimes halting, establishment of international courts. Her story does not only turn on critical junctures, though. She recognizes that “between international legislative moments [i.e., the establishment of courts], lawyers and judges are adjudicating cases within the legal frameworks they have, and international secretariats are working with judges, advocates, and governments to adjust existing systems so as to address known problems” (117).

Based on this “whirlwind historical account” (159), Professor Alter “extracts . . . five general political factors that make governments more willing to consent to international judicial oversight” (154). First, she posits that “a distrust in government is the key impetus behind the political support of international judicial oversight” (154). In this regard, “[g]overnments only sign on [to courts] . . . once their legitimating suggestions of other options ring too hollow [to their populations] to be convincing” (154). Resort to courts, thus, is a function of “disenchantment with domestic checks and balances” (154-55). Second, “global initiatives have aided the implantation of international law in domestic legal systems, and thus facilitated the spread of embedded approach to international law enforcement” (155). Those initiatives – including the Washington Consensus, Convention Against Torture, the Rome Statute of the International Criminal Court, and the UN’s Millennium Development Goals – have pushed states to reform their domestic systems. Third, “the overlapping nature of national, regional, and international jurisdiction propels advancements at each level” (155). Thus, failures or successes in one part of the international system have repercussions elsewhere. Fourth, the “legal and political dynamics interact to produce institutional change between conjunctural moments” (156). Fifth, “the United States (and Europe) facilitate the spread of international law and international adjudication when leaders articulate, accept, and respond to legalist arguments” (157). Though Professor Alter seeks to draw out these factors and establish connections between “political forces” / “global forces” and the establishment of regional and global tribunals, she recognizes at the very conclusion of her discussion that “international judicial systems evolve slowly over time, propelled by conjunctural events and shifting legal practice” (160).

Like many social scientists, Professor Alter’s “history” is a search for principles or factors that explain why and when certain phenomena occur. (more…)

Alter Book Symposium: Welcome to the New World of Comparative International Courts

by Roger Alford

Let me join others in heaping praise on Karen Alter’s new book. It marks a growing trend of studying international law from an institutional rather than substantive perspective. My favorite aspect of the book is the lateral thinking that occurs when one examines international tribunals across disciplines. International law scholars typically labor in their own vineyards, missing opportunities for grafting new vines onto old roots. Alter steps back and examines world history from the perspective of new international courts and tribunals. It is a welcome addition.

Her book is a voice for the younger generation, who did not grow up studying international law “during the Cold War when power politics mattered more than law, and when most international legal institutions were virtual entities that barely met and rarely said anything of political or legal consequence.” (p. xix). A younger generation of scholars embraces the cornucopia of international tribunals in all their variety, and will soon treat international dispute resolution as a separate and distinct transubstantive body of international law. We are moving in that direction with the development of the emerging field of global administrative law. But future decades will witness a greater emphasis on procedural rather than substantive international law, and comparative international courts will be a new specialty. Today it is rare to take a course entitled “International Courts and Tribunals.” Today we do not compare across international courts questions such as jurisdiction, standing, evidence, judicial selection, remedies, and enforcement of judgments. Future generations will. The New Terrain of International Law is a major contribution in that direction.

Of course, there are problems with Alter’s book. Her choice of tribunals borrows from the Project on International Courts and Tribunals’ typology, which excludes international tribunals that are not permanent. She concedes that excluding temporary international tribunals is rather arbitrary, (p. 76), but nonetheless limits her typology to only twenty-four permanent international tribunals. Given the magnitude of the task set before her, this is understandable. But I fear that her work will continue an ill-advised trend of excluding tribunals that are not permanent. Rather than including permanency as a threshold requirement, it is far preferable to address it as a variable, similar to geographic reach or private initiation of disputes. Many temporary international courts are simply too important to ignore. Just as any historical analysis would never exclude the temporary tribunals such as the Jay Commission, the Alabama Commission, the PCIJ, or the Nuremberg or Tokyo Tribunals, one should never claim that a comprehensive study of modern courts and tribunals is complete without including tribunals such as the Iran-United States Claims Tribunal, the United Nations Compensation Commission, the Eritrea-Ethiopia Claims Commission, or the Special Court for Sierra Leone. Excluding such tribunals, but then including other temporary tribunals (the ICTY and the ICTR) as well as relatively insignificant permanent tribunals such as ECCIS, EFTAC, and WAEMU only underscores the arbitrary nature of PICT’s and Alter’s typology. Even her case studies belie the problem, for she studies several of the temporary tribunals in her case studies, but then she does not include those same tribunals in her typology.

As an expert on international investment arbitration, let me also address another fundamental mistake in the book. Alter identifies ICSID arbitral bodies as administrative tribunals. She justifies this because the “investor dispute system can give rise to costly litigation and awards, to the point that litigation threats by investors can have a chilling effect on the local regulatory politics.” (p. 202). She suggests that ICSID tribunals function in a “morphed and perhaps unintended administrative review role.” (p. 211). All of this is correct, but it is purely incidental. At their core investment tribunals are focused on the economic consequences of state action. In reality, ICSID tribunals function as international economic courts akin to the WTO. Like other international economic courts, the subject matter of investment arbitration is limited to economic issues such as trade, foreign investment regulation, contract disputes, intellectual property rights, and business law (p. 85). The basic template of an ICSID tribunal is distinct from both the WTO and ECJ models discussed in the book (p. 90), allowing private initiation of disputes before supranational courts without a preliminary ruling mechanism. But an ICSID tribunal is no more of an administrative review court than the ECJ or the WTO, which as she notes, also function as systems of administrative and constitutional review challenging community acts in front of supranational courts (p. 90). In my view it is better to categorize international tribunals based on their core objectives rather than their incidental effects.

Karen Alter deserves hearty congratulations for her excellent work. If you read the book, you will be introduced to an increasingly important field of international law. You will be ushered into the new world of comparative international courts.

Guest Post: The ICC Changes Its Mind on the Immunity from Arrest of President Al Bashir, But It Is Wrong Again

by Paola Gaeta

[Paola Gaeta is a Professor at the Law Faculty of the University of Geneva, Adjunct Professor, Graduate Institute of International and Development Studies and the Director of Geneva Academy of International Humanitarian Law and Human Rights.]

On 9th April, Pre-Trial Chamber II of the International Criminal Court (‘the ICC’ or ‘the Court’) issued another decision concerning the lack of compliance by a State party with its request to arrest and surrender Sudanese President Al Bashir. The decision thus adds to others on the same matter and all involving African member States of the ICC. This time the State concerned is the Democratic Republic of Congo (‘DRC’), which did not arrest President Al Bashir during an official visit to the country and despite a specific request to that effect by the Court.

The DRC argued, among other things, that it was not obliged to execute the request for arrest and surrender of Al Bashir on the basis of Article 98 (1) of the Rome Statute. This provision provides that the Court may not proceed with a request of cooperation or assistance whenever the requested State, in order to execute such a request, would have to breach –with respect to a third State—its international legal undertakings in the area of immunities, including personal immunities. In such cases, the Court may issue a request for assistance or co-operation to a member State only after obtaining a waiver of the relevant immunities from the third State concerned. Since the Court had not obtained the waiver of immunities, the DRC contended that it was not obliged to comply with the request of the Court.

The Pre-Trial Chamber rejected this argument. Surprisingly, it did not do so by referring to the two decisions of 2011 (against Malawi and Chad, respectively) that had already tackled the matter. Not at all: the Pre-Trial Chamber did not dedicate one word to this case law, as if these two decisions were never delivered. True, the Court is not bound by its own decisions, as Article 21(2) of the Rome Statute makes clear in providing that the Court ‘may apply principles and rules of law as interpreted in its previous decisions’. Nevertheless, this provision certainly does not mean that the Court can change its jurisprudence without even clarifying the reasons why. This is particularly true when the criminal responsibility of an individual accused of very serious international crimes is at stake. But it is also true with respect to a highly sensitive issue such as that of immunities of Al Bashir as head of State of a State not party to the Rome Statute, and the more so in light of the stand taken by the African Union on that matter on multiple occasions. The highly political tension between the African Union and the Court on this and other matters is far from being settled and the jurisprudence of the Court, which is not impeccable, certainly won’t help to alleviate it.

I do not want to say that the 2011 Pre-Trial Chamber decisions on the question of immunities of Al Bashir were convincing. Quite the contrary:  as correctly emphasized by Dapo Akande in a post on EJIL Talk! those decisions adopted a stand which made Article 98 (1) of the Rome Statute redundant, something which is ‘contrary to a basic principle of treaty interpretation’.

Unfortunately, this last of Pre-Trial Chamber II is not more convincing than those issued in 2011. This decision correctly recognizes that Article 98 (1) of the Statute directs the Court to secure the cooperation of a State not party to the Rome Statute for the waiver or lifting of the immunity of its Head of State. This in order to prevent ‘the requested State from acting inconsistently with its international obligations towards the non-State party with respect to the immunities attached to the latter’s Head of State’. However, according to the Chamber, the Court does not need to obtain the cooperation of Sudan to remove the immunities of Al Bashir. This is so because the Security Council, in obliging Sudan to cooperate fully with and provide any necessary assistance to the Court and the Prosecutor’, eliminated ‘any impediment to the proceedings before the Court, including the lifting of immunities’. For the Chamber, any other interpretation would be ‘senseless’. The Chamber thus concludes that the requirement under Article 98(1) of the Statute was already ensured by the relevant Security Council’s Resolution, by virtue of which it ‘implicitly waived the immunities granted to Omar Al Bashir under international law’. Consequently, for the Chamber the DRC was obliged under the Rome Statute to arrest and surrender Al Bashir, which it failed to do and hence violated its obligations as a State party to the Rome Statute.

It appears clear to me that the reasoning followed by the Pre-Trial Chamber is based on a wrong interpretation of Article 98(1) of the Rome Statute. This provision is not concerned with whether a State that is not party to the Rome Statute is obliged to cooperate with the Court. Article 98(1) says that the Court may not proceed with requests of cooperation which would put the requested State in the position to act inconsistently with its obligations on immunities vis-à-vis third States ‘unless the Court can first obtain the cooperation of that third State for the waiver of immunity’ (emphasis added). The question here is not the existence of a legal obligation upon the third State to cooperate, but the actual cooperation that the Court must obtain from the third State to waive the immunity.

In addition, I do not see how the obligation of cooperation imposed on Sudan by the Security Council can modify the powers and competence of the Court, including the powers of the Court vis-à-vis member States in the matter of judicial cooperation. The Court is an international organization, created by a treaty and exercising, as all international organizations, the powers and competences attributed to it by its member States. The obligations set forth by the Security Council upon a UN member State with a binding decision under Chapter VII of the UN Charter cannot affect the rights and powers of another international organization, in this case the ICC, as they are regulated in the respective constitutive instrument of such other international organization. The decision of the Security Council on the obligation of Sudan to cooperate cannot relieve the Court from the necessity to implement a requirement for the correct exercise of a power as it is the case of Article 98 (1) of the Rome Statute.  The Court has not obtained the cooperation of Sudan for the waiver of immunity of Al Bashir, as Article 98 (1) provides. To the best of my knowledge, the Court has not even attempted to obtain from Sudan such a waiver. The fact that Sudan would be legally obliged to comply with such a request – should the Court decide to submit one to Sudan – does not imply that the terms of Article 98 (1) are respected, should Sudan refuse to provide the waiver of immunities.

Finally, I do not understand how the Pre-Trial Chamber could claim that the obligation of Sudan to cooperate with the Court, by virtue of the relevant resolution of the Security Council, would be ‘senseless’ if not interpreted as implying the waiver of immunities of the Head of State of Sudan. The fact that Sudan is obliged to cooperate with the Court is not deprived of sense if one recognizes that its head of State is protected by immunities under international law in the territory of foreign states.  After all, extradition treaties are not deprived of sense simply because, as the ICJ has clarified, a state may not even circulate internationally an arrest warrant against a foreign sitting head of state or government, or ministers for foreign affairs.

Commentators who have argued that the Security Council’s decision has a bearing on the matter of immunities have been not so naïve to claim that the inapplicability of Article 98(1) of the Rome Statute stems from the obligation of Sudan to cooperate with the Court. They have been much more sophisticated than the Pre-Trial Chamber. For instance, in a paper published in the JICJ, Dapo Akande argues that whenever the Security Council triggers the jurisdiction of the Court (as in the case of Darfur, Sudan), States that are not members of the Rome Statute become bound by the latter since the referral by the Security Council ‘is a decision to confer jurisdiction on the Court (in circumstances where such jurisdiction may otherwise not exist)’. Therefore Sudan, and other non-member States of the ICC, would be obliged to accept that the Court exercises its jurisdiction in accordance with the Statute. Sudan would therefore be obliged by Article 27(2) of the Rome Statute, and its State officials would not be entitled to personal immunities before national jurisdictions that could therefore arrest and surrender incriminated officials to the ICC to comply with its request.

I do not find this argument convincing. I contend that the referral of a situation to the Court by the Security Council constitutes just one of the conditions for the exercise by the Court of its criminal jurisdiction, and does not constitute the source of the jurisdiction of the Court. This applies also when the Security Council refers to the Court a situation where the crimes are committed in the territory or by a national of a state not party to the Rome Statute. This is however not the point here. The point is that the Court cannot take the luxury of changing its mind on a sensitive issue such as that of the immunities of Al Bashir without even saying why; and in addition to issuing another unconvincing decision on the matter.

I have personally no sympathy for President Al Bashir. I do hope, as many do, that sooner or later he will be brought before the Court, or at least induced to surrender, to respond to the serious allegations brought against him. I do not believe, however, that the Court is making justice to international law by delivering decisions that, at least with respect to issue of the obligation of States parties to arrest Al Bashir, are, with all due respect, frankly wrong.

Alter Book Symposium: Comment by Tonya L. Putnam

by Tonya L. Putnam

[Tonya L. Putnam is an Assistant Professor at the Department of Political Science at Columbia University]

I’m very pleased to have been asked to contribute my thoughts on Karen Alter’s The New Terrain of International Law. Alter’s cogently argued new book exemplifies what well-executed interdisciplinary scholarship can achieve. It puts into productive dialogue several core preoccupations of political scientists, international lawyers, and practitioners as they relate to the growing universe of international courts (ICs). Not only does the resulting analysis map the outputs of, and relationships between intensively studied ICs like the ECJ, the ECtHR, and the WTO panel system, and more recently created, and less well-known, ICs and court-like bodies, it simultaneously theorizes the political interactions that create, sustain, confound, and (at times) transform their activities. From it we gain a compelling picture of how new-style ICs are using international law to reshape political interactions spanning the interstate to the local level around issues from property rights to human rights.

The contributions of The New Terrain of International Law are too many to enumerate in detail. In the space I have here, therefore, I focus on two areas where future scholars can benefit from the foundation Alter lays in this volume. I then propose a set of questions about whether further proliferation of ICs may begin to complicate international affairs.

(more…)

Alter Book Symposium: The New Terrain of International Law

by Karen J. Alter

[Karen J Alter is Professor of Political Science and Law at Northwestern University and co-direcor at iCourts Center of Excellence at the Copenhagen University Faculty of Law.]

The New Terrain of International law: Courts, Politics, Rights uses the universe of operational permanent international courts (ICs), those with appointed judges that stand ready to receive cases, as a laboratory to explore the changing reach and influence of international courts in contemporary politics. In 1989 when the Cold War ended, there were six operational ICs. Today there are more than two-dozen that have collectively issued over thirty-seven thousand binding legal rulings. The New Terrain of International Law shows how today’s international courts differ fundamentally from their Cold War predecessors. Most ICs today have ‘new-style’ features, compulsory jurisdiction and access for non-state actors to initiate litigation, which scholars associate with greater independence and political influence. Most ICs today have a mandate that extends beyond inter-state dispute resolution. Chapters in the book chart the uneven jurisdictional landscape of ICs today, and offer an account of the proliferation of new-style ICs.

The book is first and foremost a social science treatment of the growing role of ICs in politics today. I argue that the trend of creating and using new-style ICs signals a transformation from international law being a breakable contract between governments towards a rule of law mentality. ICs are not, I argue, the vanguard of this political change.  Rather, the trend towards creating new-style ICs reflects the reality that international law increasingly speaks to how governments regulate national markets, treat their citizens and conduct war, and both citizens and governments want these increasingly intrusive international legal agreements to be respected. For the most part, ICs are doing exactly what governments tasked them to do. International judges are resolving questions about the law, and holding governments and international organizations to international legal obligations.

My primary objective is to understand how and when delegating authority to ICs transforms domestic and international relations. (more…)

Joint Opinio Juris-EJIL:Talk! Book Symposium this week

by An Hertogen

This week we are working with EJIL:Talk! to bring you a symposium on Karen Alter‘s (Northwestern) book The New Terrain of International Law: Courts, Politics, Rights (Princeton University Press). Here is the abstract:

In 1989, when the Cold War ended, there were six permanent international courts. Today there are more than two dozen that have collectively issued over thirty-seven thousand binding legal rulings. The New Terrain of International Law charts the developments and trends in the creation and role of international courts, and explains how the delegation of authority to international judicial institutions influences global and domestic politics.

The New Terrain of International Law presents an in-depth look at the scope and powers of international courts operating around the world. Focusing on dispute resolution, enforcement, administrative review, and constitutional review, Karen Alter argues that international courts alter politics by providing legal, symbolic, and leverage resources that shift the political balance in favor of domestic and international actors who prefer policies more consistent with international law objectives. International courts name violations of the law and perhaps specify remedies. Alter explains how this limited power–the power to speak the law–translates into political influence, and she considers eighteen case studies, showing how international courts change state behavior. The case studies, spanning issue areas and regions of the world, collectively elucidate the political factors that often intervene to limit whether or not international courts are invoked and whether international judges dare to demand significant changes in state practices.

From our side, Tonya Lee Putnam (Columbia – Political Science), Bill Burke-White (UPenn – Law) and Jacob Katz Cogan (Cincinatti – Law) will provide comments, followed by Karen’s response.

Across the Atlantic, comments will be provided by Antonios Tzanakopoulos (Oxford) and Nico Krisch (IBEI).

As always, we welcome readers’ comments!

Weekly News Wrap: Monday, April 21, 2014

by Jessica Dorsey

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

Africa

Asia

Middle East and Northern Africa

Europe

Americas

UN/Other

Supreme Court Takes Jerusalem Passport Case on the Merits

by Peter Spiro

NY Times dispatch here. The Supreme Court will now confront the question of whether Congress can force the Secretary of State to include the birthplace “Jerusalem, Israel” at a U.S. citizen’s option. This could be a huge case or a not-so-huge case. If the Court affirms the D.C. Circuit’s ruling below and strikes down legislation purporting to constrain the Secretary of State’s passport authority, the ruling would be important but hardly epochal. That would protect the president’s authority over foreign relations, and fit neatly into a doctrinal tradition dating back at least a century. It is something new for the Court to get to the merits of the question — that’s why the decision in Zivotofsky I itself marked something of a watershed. If the Court accepts expansive executive branch powers, the jurisprudential gun remains loaded but no shots get fired.

But if the Court upholds the law, it will be a major departure from that tradition. The passport case implicates a genuinely sensitive issue of foreign relations. If the Court forces the State Department into something like formal acknowledgement of Israeli sovereignty over Jerusalem, who knows what would follow on the ground. This isn’t a case like Medellin, which predictably upset Mexico at the same time that our relations predictably weathered any such upset. Nor would it play out like Bond, which even if it restricts the Treaty Power will hardly be noticed by foreign audiences. To use the vocabulary of the foreign relations canon, a Supreme Court ruling against the executive branch in Zivotofsky could severely “embarrass” the President in the conduct of foreign relations. Think unruly crowds outside U.S. embassies.

That would have been inconceivable 20 years ago. But foreign relations law is being normalized. (For an excellent take on the shift, see Harlan Cohen’s piece here.) Foreign affairs has long been immune to judicial activism; maybe no longer. The Court may still hesitate to the extent it sees some real, even uncabinable, damage to the Middle East peace process in siding with Congress on the question. The easier path would have been to duck the case altogether. By accepting review, it may already have tipped its hand in a new direction.

On Steve Vladeck’s Post-AUMF Detention

by Deborah Pearlstein

Nothing like spring break (yes, we break right before semester’s end) to do a little catch-up reading – starting this week with Steve Vladeck’s new essay grappling with one of the nation’s most intractable problems: closing Guantanamo. Among the many challenges associated with the prison’s continued existence, Steve highlights its role in preventing serious consideration of repealing the AUMF (the federal statute authorizing the use of military force against Al Qaeda and associated groups). The Gitmo detainees are held under the domestic authority of the AUMF; as long as the government wishes to continue to hold at least some of the Gitmo prisoners (as it does), Congress can’t repeal the law without risking their potential release. Despite the winding down of U.S. operations in Afghanistan, the serious weakening of core Al Qaeda, and the President’s announced desire to move the nation away from a permanent wartime footing – AUMF repeal is essentially impossible as long as we are concerned with maintaining the legality of the Gitmo prisoners’ detention under domestic law.

So how to keep Gitmo from becoming the detention tail that wags the wartime dog? Steve proposes that even without an AUMF, we could continue to hold the approximately 45 Gitmo detainees the executive sees as the intractable core (those the administration has designated unprosecutable but too dangerous to release) under the authority of another federal law: Section 412 of the USA PATRIOT Act of 2001. Section 412 – which Steve notes has not been used once since its enactment in 2001 – requires the Attorney General to take into custody any alien he has reasonable grounds to believe is (for example) a member of a terrorist organization, or endorses or espouses terrorist activity, or “is engaged in any other activity that endangers the national security of the United States.” The alien may be detained for up to a week until the commencement of immigration removal proceedings or criminal prosecution, or for “additional periods of up to six months” if his “removal is unlikely in the reasonably foreseeable future,” and if release “will threaten the national security of the United States or the safety of the community or any person.”

Steve’s diagnosis of the relationship between Guantanamo Bay and the AUMF is spot on in some critical respects. The uniquely problematic nature of the Guantanamo detention program skews the current debate about the need for continuing use-of-force authority, just as surely as it has skewed broader debates about U.S. counterterrorism detention, trial, and interrogation policies for the past dozen years. For a host of reasons, the Gitmo population is singularly unrepresentative of the challenges that would be posed by counterterrorism detention or trial following the arrest of any terrorism suspect today: Gitmo detainees were denied basic Geneva protections (including any initial hearing about who these men actually were); some detainees were transferred there following periods of unlawful (even torturous) detention elsewhere; criminal counterterrorism laws that are today used for prosecution were much narrower extrajudicial scope in 2001; Congress maintains unprecedented restrictions on the transfer of detainees to the United States for any purpose; and so on. Indeed, as Steve recognizes, given all that has gone before, closing Gitmo now involves only bad options; the policy task is to choose which among these bad options is least worst under the circumstances.

Despite the low bar, I have to admit I’m still unconvinced that Section 412 is the least worst way to go. (more…)