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The Not Very Persuasive International Law Arguments in Favor of the Iran Visa Denial

by Julian Ku

I think it is fair to say that when Kevin and I agree on a legal question, there is a good chance there is a lunar eclipse happening or some other rare astronomical phenomenon occurring somewhere.  But since both of us think that the U.S. has no international legal basis to deny a visa to Iran’s new UN ambassador, this “fair and balanced blog” should consider the international law arguments offered in favor of the U.S. decision, especially as Iran has signaled it is going to fight this US decision, maybe by seeking an ICJ advisory opinion or an arbitral tribunal. This NYT article outlines three international law arguments that the U.S. might invoke in descending order of persuasiveness (at least to me):

Precedent and Practice Trump: Larry D. Johnson, who served as the Deputy Legal Counsel to the U.N. in the past, suggests that the U.S. and the U.N. have come to a tacit agreement to avoid disputes on visa denials.  If a visa is denied, the country facing denial must bring this matter up with the U.S.  The U.N. will not do so.  If this past practice is followed by the U.N., it effectively undermines the legal basis for Iran’s challenge.  Absent the Headquarters Agreement with the U.N., the U.S. has no obligation to issue a visa to Iran’s UN envoy, and Iran (not being a party to the Headquarters Agreement) has no international legal basis to protest.

My take: If this is current practice, and there is some evidence for this, the U.S. is really just acting consistent with its nearly sixty year pattern of practice by denying the visa in this case.  This doesn’t exactly legalize (internationally) the US act, but it does help.  

The Iranian Hostage Crisis Trumps: John Bellinger, over at Lawfare, suggests that because Iran’s UN Envoy was involved in one of the most egregious violations of diplomatic immunity rights in the past century, there will be little sympathy from other countries for Iran.

My take: This might be right, but it is not clear to me that the past violations would meet the “security exception”, and it is not even clear that the security exception is a valid international reservation to the Headquarters Agreement.  In any event, this is not really a legal argument, but a judgment on international politics.  If Iran goes to the General Assembly, the merits of this political judgment will be tested.

The UN Charter’s Human Rights Obligations Trumps: University of Houston lawprof Jordan Paust argues that because Iran’s UN Ambassador was involved in what the ICJ called a violation of human rights, the U.S. would be justified denying him a visa in reference to its U.N. Charter obligation to “respect human rights.”

My take: With all due respect to Professor Paust, I don’t think the U.N. Charter can be fairly read to require states to “respect human rights” in violation of their other international obligations.  The language of the Charter in Article I asks states to “promot[] and encourag[]” human rights. It is far from mandatory language.

Moreover, if correct, this is the exception that swallowed the UN Headquarters Agreement.  The U.S. could deny a visa to anyone whom it believes has or is likely to undermine “respect for human rights.” Past practice suggests the U.S. has not interpreted either the Charter or the Headquarters Agreement in this way.

If Iran decides to seek a General Assembly resolution, it will not require the U.S. to change its decision, but it would probably be a good test of John Bellinger’s thesis about where countries’ sympathies lie. My guess is that we are going to see tons of absentions.

If Iran gets the U.N. to demand arbitration under the Headquarters Agreement, this would be more interesting.  The U.S. might have to follow China and Russia’s example by simply refusing to participate in the arbitration. And the U.S. would probably lose that arbitration (although enforcement is another matter).   If I were Iran’s government, that would be a pretty ideal outcome. They still will not get their ambassador, but they can cause some pretty serious soft power damage before they give up.

Disaster Displacement: Gaps in International Norms

by Kristen Boon

There is an interesting interview with Professor Walter Kahlin, former Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons, on disaster displacement over at the IPI’s Global Observatory.

He discusses why the current international law regime on refugees is incomplete when it comes to displacement.  He explains:

Back in 2010, Haiti was hit by one of the most devastating earthquakes, and hundreds of thousands who were displaced within the country immediately found refuge in makeshift camps. But many showed up already during the very first night—the first few days after the earthquake—at the border of the neighboring Dominican Republic. The question for the president was: should he open the borders or should he keep them closed? And he couldn’t get any guidance from any kind of international law because these people, even though they didn’t have any opportunity at that time for their wounded family members to access medical assistance (this came only later), they were not protected as refugees or in any other kind of quality by international law. A gap.

The IMO concurs, stating:  “climate refugees fall through the cracks of asylum law.”   This is clearly an area ripe for reflection.    Do climate refugees have a right of access to neighboring countries?   What should the definition of “climate refugee” be?    More importantly, given the problem of differentiating between climate disasters and natural disasters, it makes it very difficult to determine the different obligations of the international community.    There appears to be little appetite to revise the 1951 convention on the status of refugees to include climate refugees, which would afford them protections akin to political refugees.  Interestingly, the UNHCR has spoken out against this approach, claiming that while environmental degradation can contribute to forced, cross-border migration, this should not translate into more grounds for granting refugee status.

There are some interesting initiatives afoot to fill the gap.   The Nansen initiative, a self-described  “bottom-up” initiative is starting to canvas the norms that might apply.   Information is available here.   The ILC is studying the related question of protection of persons in the event of natural disasters here.   Academics have entered the debate.  Professor Katrina Wyman at NYU has canvassed the current models and proposed a “rights model” in an article here, which would boost the levels of migrants from developing to developed countries to begin with.  She writes:

How might immigration policy be changed to increase resilience in developing countries vulnerable to the effects of climate change? One option would be to make it easier for citizens of developing countries that are vulnerable to climate change to move to destination countries temporarily or permanently, for example, by boosting allowable immigration levels from these countries.

Do our readers have any other suggestions on important sources or approaches to this important new international issue?

Weekly News Wrap: Tuesday, April 15, 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

  • Nepal would weaken the foundations of “genuine and lasting” peace after a decade-long civil war if it gave amnesties for serious crimes committed during the conflict, according to Navi Pillay, the UN High Commissioner for Human Rights.

Now in Paperback: The Oxford Guide to Treaties

by Duncan Hollis

Just a quick note to flag for interested readers that Oxford has released a paperback version of my book, The Oxford Guide to Treaties.  Happily, it is significantly cheaper than the hardback version — it’s listed for under $60 on Amazon right now.  I hope that this edition will interest non-institutional buyers for whom the earlier price tag was a bit steep. See here and here for additional links.

Events and Announcements: April 13, 2014

by Jessica Dorsey

Event

  • The British Institute of International and Comparative Law and Cambridge University Press invite you to the International and Comparative Law Quarterly Annual Lecture 2014, to be held at Charles Clore House at 5.30-7.30pm on Tuesday 20th May. Professor Mindy Chen-Wishart of Merton College, Oxford will deliver a lecture entitled: ‘Legal Transplant and Undue Influence: Lost in Translation or a Working Misunderstanding’, followed by a question and answer session. The event is free to attend, but please register here. The lecture will discuss an increasing awareness of the unquestioned assumptions of one’s own legal system as a means of understanding how a transplanted doctrine has been applied in a particular context, with a focus on Singaporean courts ‘borrowing’ undue influence in family guarantee cases from the English legal system. Through exploring hierarchy versus equality, the positional versus the personal, and collectivism versus individualism, it will conclude on whether a ‘Western’ legal transplant can be successful in a very different Singaporean cultural context. The Young Scholar Prize 2013 will also be awarded at the event, to Bharat Malkani, University of Birmingham, for his paper: The Obligation to Refrain from Assisting the Use of the Death Penalty. This Prize is awarded annually to a scholar aged 35 or under at the time of the publication of their article. The welcome address for the event will be given by the General Editor of the ICLQ, Professor Malcolm Evans OBE. The Lecture will be followed by a drinks reception, and is generously sponsored by Cambridge University Press, who publish and distribute the ICLQ.

Announcements

  • The Academy on Human Rights and Humanitarian Law sponsors the Program of Advanced Studies on Human Rights and Humanitarian Law which runs from May 27th to June 13th 2014. The program offers 19 courses taught by more than 43 prominent scholars in the field of human rights in both English and Spanish, with experience in the International Criminal Court (ICC), the International Court of Justice (ICJ), United Nations, Inter-American Commission and Court on Human Rights, recognized international NGOs and think tanks. Last year, the program welcomed more than 165 participants from over 24 countries with differing backgrounds and levels of experience for an intensive three weeks in Washington, D.C. The Program is offered in three categories which include the modality of Certificate of Attendance, ABA Credits for students currently studying in a U.S. law school and finally, the Diploma Course that is offered to a select group of 35 law professionals who fulfill the admission requirements. Additionally during the Program, the Academy hosts Human Rights Month, which features several special events such as panels, a film series, and site visits to international organizations. The May 1st deadline is less than a month away. The organizers encourage you to apply as soon as possible. You can access more information here
  • International scholars and practitioners of transitional justice are invited to apply for a 1-week workshop and training program on transitional justice organized and led by the Hague Institute for Global Justice from 23-27 June 2014 in The Hague. This week-long training is part of the Transitional Justice in Africa Fellowship Program, a joint initiative by the Hague Institute and the Institute for Justice and Reconciliation (IJR) in South Africa, that brings together senior and mid-level expert scholars and practitioners with extensive experience working to advance transitional justice in their community. For more information about the application process and the fellowship program, please visit our website at: Hague 1-week fellowship program.
  • The Grotius Center for International Law at Leiden University has announced several summer schools:

    International Criminal Law (23 June – 4 July 2014, The Hague) From Theory to Practice
    This summer school offers a unique opportunity to gain expertise in international criminal law in the International City of Peace and Justice. The course, which welcomes around 50 participants from all over the world, combines theory with practice: academics from Leiden University and experts from the international courts and tribunals lecture on topics as genocide, crimes against humanity, the crime of aggression and modes of liability, while students develop their skills through a cross-examination session and a challenging moot court exercise. (Law) Students and young professionals are invited to apply. Application deadline: May 1, 2014.

    Columbia Summer Program (June 30 – July 25, Leiden) In American Law
    The Columbia Summer Program is organized by the Law Faculties of Leiden University, the University of Amsterdam and Columbia University in the City of New York. Since 1963 these summer courses are held alternately at the Leiden Law School and at the Amsterdam Law School. The program is entirely taught by Columbia professors, and is designed to provide a general introduction to the American legal system for lawyers and other (legal) professionals, or (graduate) students interested in the program. Besides the excellent educational aspects, the Columbia Summer Program is also known for its exceptional fine atmosphere amongst participants and professors from Columbia University. Take a look at the website and apply before May 1, 2014!

    International Children’s Rights (7 – 11 July 2014, Leiden/The Hague) Frontiers of Children’s Rights
    Frontiers of Children’s Rights provides a comprehensive children’s rights course, which takes a close look at contemporary children’s rights issues from a legal perspective accompanied by reflections from other academic disciplines, legal systems, local perceptions and realities. Leading academic and professional experts in the field of children’s rights, international law and other relevant disciplines offer inspiring and interactive lectures, seminars and excursions in and around the historical university town of Leiden. Professionals and advanced students are welcome to apply. A limited amount of scholarships are available for this course. Application deadline: May 1, 2014.

    Human Rights and Transitional Justice (14 – 18 July 2014, The Hague) Transitional Justice and Regional Responses to Conflict
    Past decades have witnessed new approaches and tensions in the interplay between international justice, regional approaches and local responses to conflict. International Courts and Tribunals have sought to develop policies and mechanisms to engage with domestic constituencies and actors. But practice has also shown weaknesses and constraints of international criminal justice institutions. The ICC has faced challenges in its engagements in regional conflicts and new regional initiatives are emerging. At the same time, regional human rights have had to deal with dilemmas of historical justice and transitions. The Summer School explores these developments, including practice and underlying accountability strategies. Professionals and advanced students are kindly invited to apply before May 1, 2014.

    Women, Peace and Security (9 – 20 June 2014, The Hague) Challenges and Achievements
    In 2000 the UN Security Council adopted Resolution 1325, affirming the important role of women in the prevention and resolution of conflicts and in peace building, and calling on all parties to take special measures to protect women and girls from gender-based violence in situations of armed conflict. The 15th anniversary of Resolution 1325 in 2015 has been set as a marker for the achievements and goals on this core issue of international peace and security. This course, a joint initiative of Oxfam Novib and Leiden University, takes a close look at the WPS agenda and enables the participants to increase their knowledge, skills and networks in this field. Professionals and advanced students with a demonstrated interest in the theme are invited to apply before 1 May 2014.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

There Is No General “Security Exception” in the UNHQ Agreement Act

by Kevin Jon Heller

I fully concur with Julian’s recent post about the United Nations Headquarters Agreement. There is no question that the US decision to deny Aboutalebi a visa violates the Agreement itself. But I’ve seen suggestions, most notably by my friend John Bellinger, that the US is not violating domestic US law because the 1947 United Nations Headquarters Agreement Act (scroll down) contains a “security exception” to the visa requirement. Here is what John said, according to Bloomberg:

President Barack Obama has authority to deny a visa to Iran’s newest choice as envoy to the UN, yet doing so would open up risks for U.S. foreign policy.

The decision in the case of Hamid Aboutalebi, who was part of the group that took over the American embassy in Tehran in 1979, is being made at a delicate point in U.S.-led negotiations over Iran’s nuclear program.

Under the United Nations Headquarters Agreement Act approved by Congress in 1947, the president has authority to deny visas to individuals deemed to pose a security threat to the U.S., said John Bellinger, a former State Department legal adviser who is now partner at Arnold and Porter LLP in Washington.

If Obama decides a person is a threat “then we’re not required to give that person a visa, and that would be consistent with our obligations under the headquarters agreement,” Bellinger said. “Whether that’s good policy or not that would be up to others to decide.”

“The short answer is, it’s complicated,” he said.

I disagree. With respect to John, nothing in the Headquarters Agreement Act permits the US to deny a visa to anyone it considers a “security threat.” The relevant provision is section 6, which Julian did not quote in full in his post (emphasis mine):

Nothing in the agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States other than the headquarters district and its immediate vicinity, as to be defined and fixed in a supplementary agreement between the Government of the United States and the United Nations in pursuance of section 13 (3) (e) of the agreement, and such areas as it is reasonably necessary to traverse in transit between the same and foreign countries. Moreover, nothing in section 14 of the agreement with respect to facilitating entrance into the United States by persons who wish to visit the headquarters district and do not enjoy the right of entry provided in section 11 of the agreement shall be construed to amend or suspend in any way the immigration laws of the United States or to commit the United States in any way to effect any amendment or suspension of such laws.

Section 6 contains two separate provisions. Provision 1 permits the US to prohibit individuals who have a right of entry under the Headquarters Agreement but are considered a security threat from traveling anywhere other than other than “the [UN] headquarters district and its immediate vicinity.” Provision 2 then permits the US to deny entry completely to anyone who does not have a right of entry under the Headquarters Agreement. Section 6 thus does not permit the US to deny entry completely to someone who has a right of entry.

I think this is the only plausible reading of section 6. To find a general “security exception,” we have to read “safeguard its own security” (1) in isolation from the rest of the sentence in which it is placed (in which case we must still infer that the US is entitled to deny entry completely to individuals who are security threats, because Provision 1 does not specify any remedy other than limitation to the UN area), and (2) in isolation from Provision 2, which does explicitly permit denying entry completely but limits that remedy to individuals who do not have a right of entry under the Headquarters Agreement. Moreover, as Julian notes, it is extremely unlikely the UN would have accepted a general security exception if that had been Congress’s intent, because such an exception would have effectively rendered section 11 of the Headquarters Agreement moot.

Thanks to Tyler Cullis for calling the “security exception” problem to my attention.

Can the U.S. Legally Deny Iran’s New U.N. Ambassador a Visa to New York? Nope.

by Julian Ku

According to Reuters, the U.S. is thinking hard about denying a visa to Iran’s new U.N. Ambassador, thus preventing him from taking up his post in New York. The new ambassador, Hamid Abutalebi, apparently participated in the Iranian takeover of the U.S. embassy in Tehran back in 1979. Although nothing is official yet, it looks like the U.S. is going to invoke its “security exception” to the U.N. Headquarters Agreement to deny Abutalebi a visa.   As in the case involving President Bashir of Sudan, denying a visa to Iran’s ambassador would almost certainly violate the Headquarters Agreement.  Let’s take a look at Section 11:

The federal, state or local authorities of the United States shall not impose any impediments to transit to or from the headquarters district of (1) representatives of Members or officials of the United Nations…

Iran’s ambassador is clearly covered by this language. The only U.S. argument flows from the “security” exception attached to the Headquarters Agreement upon its approval by the U.S. Congress.

Nothing in the agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States….

As a matter of international law, I do not think the United Nations ever officially accepted this amendment to the original Headquarters Agreement, and certainly it has never accepted the rather broad U.S. interpretation of this provision.  A deal was struck in the past to allow the U.S. to give very limited visas that kept visitors within 15 miles of UN Headquarters.

In any event, the U.N. has battled with the U.S. several times in the past over the use of this clause to deny visas to the PLO, or even to close down PLO observer missions at the U.N.  The U.N. even sought arbitration (as provided by the Headquarters Agreement) as well as an advisory opinion from the ICJ when the US went after the PLO back in the late 1980s.

Does this mean the U.S. cannot deny the visa? I think under domestic U.S. law, there is certainly a plausible basis for denial given Abutalebi’s past connections and U.S. practice in this area.  But the U.N. would be well within its rights to claim a violation of the Headquarters Agreement and to demand an arbitration that it would have a good chance of winning.   I don’t get why the U.S. wants to pick this fight at this time. I’d prefer it hang tough on its demand that Iran eliminate its nuclear weapons program rather than deny a visa over actions taken by a guy 35 years ago.  But it looks like we are going to have this fight, so stay tuned.

Should the U.S. Use “Lawfare” Against Russia?

by Julian Ku

Back in 2007, Messrs David Rivkin and Lee Casey’s Wall Street Journal op-ed helped popularize the term “lawfare” among U.S. conservatives, who have used the term to decry legal tactics that challenged US policy in the war on terrorism.   As they defined it then:

The term “lawfare” describes the growing use of international law claims, usually factually or legally meritless, as a tool of war. The goal is to gain a moral advantage over your enemy in the court of world opinion, and potentially a legal advantage in national and international tribunals.

So it is somewhat surprising that the duo, both very influential commentators among U.S. conservatives, is advocating a lawfareish approach to combatting Russia’s annexation of Crimea and its threats against Ukraine. Here is some of their advice in today’s WSJ.

As a start, the Obama administration should seek a U.N. General Assembly resolution requesting the International Court of Justice’s opinion on the legality of the Russian annexation of Crimea.

The U.S. and its allies should also challenge the legality of Russia’s actions in every conceivable legal venue, whether domestic or international.

Nongovernmental organizations, which cast themselves as guardians of the international order, have a role to play in condemning and challenging in courts of law and in public opinion Russia’s actions against Ukraine

In other words, the authors want to use “lawfare” against Russia.  I agree that the US has good legal arguments against Russia on this issue, and that the US also had good (but not unassailable) legal arguments for its war on terrorism policies. But I don’t think that the US invocation of international law, nor its employment of “lawfare” to highlight international law, will be very successful against Russia.  Lawfare’s main impact against the U.S. was to tie up many of its policies in domestic U.S. litigation. I don’t see that as an avenue against Russia.

Moreover, the employment of lawfareish pressure tactics could easily be used as an excuse to avoid taking more strenuous or effective actions (e.g. tougher sanctions, increased military aid, etc.).  I am not sure US conservatives should be eager to jump on this lawfare bandwagon, no matter how good the cause.

Weekly News Wrap: Monday, April 7, 2014

by Jessica Dorsey

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

Africa

Asia

Middle East

Europe

Americas

UN/Other

  • The American Society of International Law/International Law Association meeting kicks off today in Washington, D.C. ASIL Cables will be blogging about the event and you can also follow the Twitter hashtag #ASILILA14.

Events and announcements: April 6, 2014

by An Hertogen

Event

  • The United Nations Law Committee of the International Law Association, American Branch, along with The George Washington University Law School, invite you to a brownbag lunch panel on Treaty Survival on Wednesday, April 9, 2014, 1:00 – 2:15 PM in the Moot Court Room, The George Washington University Law School, 2000 H St. NW, Washington DC, 20052. This panel will address the effectiveness of treaties over time, with particular emphasis on the adaptability of treaties to present-day challenges. Can existing treaties, including those of fundamental doctrinal significance, such as the Geneva Conventions or the Treaty on the Non-Proliferation of Nuclear Weapons, remain effective in an era of rapid change? Can contemplated or future agreements that seek to address evolving areas about which incomplete information exists, such as nanotechnology, geoengineering, synthetic biology, cyberspace and weapons systems, remain relevant and responsive over time? What tools enable international lawyers to assist the international community in addressing these questions? Panellists are our own Duncan Hollis, as well as Sean Murphy, Georg Nolte and Arnold Pronto.

Calls for Papers

  • TDM is calling for a special issue on dispute resolution from a corporate perspective that seeks to widen and deepen the debate on issues that are central to the efficient management of disputes from a corporate perspective. They seek contributions related to dispute management, commercial dispute resolution, managing the cost of dispute resolution, and the future of commercial dispute resolution, but welcome other relevant contributions as well. The editors of the special are: Kai-Uwe Karl (General Electric), Abhijit Mukhopadhyay (Hinduja Group), Michael Wheeler (Harvard Business School) and Heba Hazzaa (Cairo University). Publication is expected in October 2014. Proposals for papers should be submitted to the editors by July 31, 2014. Contact details are available on the TDM website.

Announcements

  • The ICRC has launched its first Research & Debate Cycle on New Technologies and the Modern Battlespace. In recent years, a wide array of new technologies has entered the modern battlefield, giving rise to new methods and means of warfare, such as cyber attacks, armed drones and robots.  While there can be no doubt that IHL applies to them, applying pre-existing legal rules to new technologies may raise the question of whether the rules are sufficiently clear in light of the new technologies’ specific characteristics and foreseeable humanitarian impact. Each of these new technologies raises a host of issues, which the first Research & Debate Cycle proposes to discuss. From March to June 2014, several public events will be organized around the globe, with a view to answering several objectives: connecting academics and researchers on international humanitarian law, scientists, military representatives, human rights lawyers, policy-makers and practitioners;  facilitating discussion, exchange of knowledge and new ideas in relation to the theme of the cycle; ensuring a global outreach, through the involvement of relevant ICRC delegations and contacts in the field; proposing multi-disciplinary solutions to the questions identified. On March 25, the inaugural panel presented the various ethical, legal, scientific, and military issues that new technologies raise for humanitarian law and action, and which the subsequent events will strive to answer. The recording of the panel, as well as several interviews with the speakers, is now available here.
  • The EIUC Venice School of Human Rights will run from June 27 to July 5, 2014 and is accepting applications until May 15, 2014. The EIUC Venice School of Human Rights will update participants on the state of the art debate on human rights issues and stimulate their reflection on the current challenges faced by human rights actors worldwide. After an introduction on current challenges, participants will have the opportunity to learn more about one of these 3 selected topics “Business and Human Rights”, “The Internationalisation of Migration Law and the Role of the EU” and “Freedom of Expression and Assembly Online”. The EIUC Venice School combines theory and practice and its faculty involves internationally recognised academics and practitioners. Prof. Martin Scheinin, former UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and Prof. William Schabas from the University of Middlesex will open the Venice School 2014. Check herefor the full programme details.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

Weekend Roundup: March 29-April 4, 2014

by An Hertogen

This week on Opinio Juris, Julian wondered if the ICJ’s judgment in the Whaling in the Antarctic would ring in the end of the Whale Wars. He also curiously awaits the release of the Philippines memorial filed with the PCA in the UNCLOS arbitration against China and assessed China’s reaction to the submission.

Meanwhile, Kevin handed out advice on how to get yourself convicted of terrorism and Chris compared Russia’s rhetoric regarding Crimea to its rhetoric regarding intervention and recognition in Kosovo and South Ossetia.

We also hosted a symposium on the two latest issues of the Harvard International Law Journal. Martins Paparinskis discussed Anthea Roberts’ article on state-to-state investment arbitration, followed by Anthea’s reply. Next, Tim Meyer and Monika Hakimi discussed her article justifying unfriendly unilateralism, followed by a discussion between Christopher Whytock and Greg Shill on judgment arbitrage. Michael Waterstone discussed an article on equal voting participation for Europeans with disabilities. Karen Alter and Suzanne Katzenstein rounded up the symposium with a discussion on the creation of international courts in the 20th century.

Finally, Jessica wrapped up the news and listed events and announcements. If you’re a PhD student, post-doc or have recently started your career and would like to write something for Opinio Juris in July or August, don’t miss the call for abstracts for the second edition of our Emerging Voices symposium.

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

HILJ Online Symposium: Suzanne Katzenstein Responds to Karen J. Alter

by Suzanne Katzenstein

[Suzanne Katzenstein is a Visiting Assistant Professor at the Duke University School of Law.]

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

Thank you to Opinio Juris and the Harvard Journal of International Law for hosting this exchange and to Karen Alter for her thoughtful comments. My article’s central question is why governments create global international courts or, put more precisely, why some government attempts to create such courts succeed and other attempts fail. I evaluate all attempts at international courts that I could identify that reached the multilateral treaty negotiation or treaty drafting stage. This amounted to four successful and seven failed attempts at establishing courts invested with general jurisdiction or relating to international criminal law, the law of the sea, and human rights. The dominant explanation for the creation of international courts focuses on the functional incentives of governments, such as the need to overcome collective action problems or to signal credibility. I argue that the functional explanation provides insufficient insight into the successes and failures of the proposals I study. I evaluate two additional explanations. The first focuses on the preferences of the most powerful states, the UK and the US. I propose a second that emphasizes the role of legal crises and international lawyers. During periods of legal crisis, governments are more willing to cooperate with one another in order to bring stability back to the legal and political order; and they are also more receptive to the proposals for international courts made by international lawyers. Neither the power nor the crisis argument fully explains the eleven attempts analyzed in the article. Not surprisingly, history is too complex. But taken together, the two explanations provide substantial insight into ten of the eleven cases, and into the creation of international courts across the 20th century.

Alter rightly notes that I define international courts and tribunals narrowly—as only those institutions that are open to any state to join. This means I exclude both regional and ad hoc criminal tribunals. I do so not only for the sake of feasibility but also because I assume that state concerns about protecting their sovereignty are distinct in those contexts. States, for instance, retain more control over the design and operation of regional than they do of fully international courts (for example in the area of judicial appointments), and most state officials are not subjected to the jurisdiction of the ad hoc criminal tribunals they help create. In addition, current scholarship, including Alter’s own work, persuasively shows that the creation of regional courts has been influenced both by region-specific dynamics as well as cross-regional emulation.

I make three other important definitional and scope choices. I study only those proposals that reach the multilateral treaty drafting or treaty negotiation stage. These attempts seemed to have a real chance at succeeding. I define “success” as courts with treaties that actually entered into force. Finally, I also exclude tribunals that deal solely with economic disputes, such as trade and investment disputes. Here, my assumption is that powerful states—those with the largest markets—enjoy unique bargaining leverage during negotiations. (more…)