Archive for
December, 2007

Iran Threatens to Sue Argentina for Defamation?

by Julian Ku

US Special Forces Ready to Seize Pakistani Nuclear Arsenal

by Julian Ku

Armenian Genocide Claims Dismissed

by Roger Alford

Bilal Hussein’s Kangaroo Court

by Kevin Jon Heller

My Favorite is Number Eight

by Kevin Jon Heller

UN Faces Helicopter Shortage

by Peggy McGuinness

Can Spider-Man Save the UN’s Image?

by Peggy McGuinness

All (International) Politics is Local: Bloomberg Responds to Bhutto Assassination

by Peggy McGuinness

Foreign Policy: “The Top 10 Stories You Missed in 2007”

by Chris Borgen

ICL Hits It Big in Hollywood!

by Kevin Jon Heller

Blogging Reaches a Milestone: Ten Years and Counting

by Peggy McGuinness

I Heard the Bells on Christmas Day

by Roger Alford

Track Santa, Courtesy of NORAD

by Chris Borgen

Bush Signs Genocide Bill

by Kevin Jon Heller

Serbia to Sell Weapons to Iraq

by Kevin Jon Heller

Did Klaus Barbie Help Kill Che?

by Kevin Jon Heller

Fujimori’s Month to Forget…

by Kevin Jon Heller

Vladimir Putin, Person of the Year

by Chris Borgen

Assisted Suicide and the Dual Criminality Standard in Extradition Treaties

by Roger Alford

Bali High?

by Daniel Bodansky

[Dan Bodansky is the Associate Dean for Faculty Development and Emily and Ernest Woodruff Chair in International Law at the University of Georgia Law School and a leading expert on climate change regulation. He participated in the Bali meeting and contributed this report to Opinio Juris.]

Only in the context of the climate negotiations could Bali be considered a “breakthrough,” as the press is reporting. In the past year, concerns about climate change have led to Nobel prizes, Academy Awards, and changes in governments; but the UNFCCC process continues to creep in its petty pace, ultimately threatening to fall apart at the 11th hour (actually, more like the 30th, since the negotiations went a day extra) over confusion involving a comma. (After Bali, “Eats, Shoots and Leaves” should be required reading for climate negotiators!)

Nevertheless, though Bali fell short of the dramatic breakthrough called for at the UN high level meeting last fall, it does represent a considerable step forward. Significantly, developing countries signaled a greater willingness to take further measures to combat climate change, accepting a negotiating mandate that involves consideration of actions involving them (unlike the Kyoto Protocol’s negotiating mandate, which expressly excluded them). For its part, the United States agreed to “launch a comprehensive process [i.e., negotiations]” to address the post-2012 period, when the Kyoto Protocol’s first commitment period ends (a change from its position at the climate meeting two years ago in Montreal, when it opposed initiating a new round of negotiations). Given the continued opposition by the Bush Administration to legally-binding limits on greenhouse gas emissions, this baby step (bringing the US back to its position in 1991, when the climate change negotiations first began) was about as much as could reasonably be expected from the Bali meeting.

The final plenary (which I missed through colossal miscalculation) was by all accounts one of the most dramatic in recent memory. (A webcast is available on the UNFCCC website). Twice, the Indonesian environment minister, who was serving as the COP President, had to suspend the meeting, due to objections from developing countries that consultations were still underway in another room (apparently unbeknownst to the COP President or the UNFCCC secretariat), under the facilitation of the Indonesian foreign minister. (Talk about lack of coordination within a government!) When the meeting finally reconvened, UN Secretary-General Ban Ki-Moon (who flew back to Bali for the final plenary), together with the President of Indonesia, made impassioned pleas for action. Even then, the meeting threatened to break down, when the United States objected to a proposed amendment by China India. But after the text was clarified by other developing countries, the United States joined consensus, allowing everyone to declare victory.

In today’s New York Times, Thomas Friedman comments that he needed 10 experts to explain the Bali outcome to him – and he was there! I sympathize. Reading climate texts has become like Talmudic exegesis or deciphering a secret code — not something that can easily be undertaken by the outside observer! Each word has a long history, and is typically capable of multiple interpretations.

The two key issues in the negotiations over the so-called Bali Action Plan were: (1) whether to reference in the preamble an IPCC scenario involving 25-40% emission reductions (from 1990 levels) by developed countries by 2020; and (2) the degree of parallelism between the paragraphs of the mandate addressing developed and developing countries.

New Report on Fraud and Mismanagement in UN Peacekeeping

by Peggy McGuinness

The Battle over Christmas in a Systemic Borderland

by Chris Borgen

New Jersey, Global Citizen

by Peggy McGuinness

Chinese Internet Filtering WTO Challenge Gaining Momentum

by Roger Alford

Top French Law Firms Requiring UK and US Law Degrees

by Kevin Jon Heller

Bali Breakdown

by Duncan Hollis

A Bolivian Secession?

by Chris Borgen

New Jersey Abolishes Death Penalty: The World Takes Note

by Peggy McGuinness

The IMT Without Justice Jackson? (Corrected)

by Kevin Jon Heller

The Mitchell Report and the “Illegal” Use of Performance Enhancing Substances

by Roger Alford

ASIL, Presidential Candidates & International Law

by Duncan Hollis

Is Helping Terrorists Always Unlawful?

by Roger Alford

Revised Essay on SSRN

by Kevin Jon Heller

Is the ICC Prosecutor Ignoring Sexual Violence in the DRC?

by Kevin Jon Heller

Kosovo’s Status: The Intra-EU Debate, the Role of “Law Talk,” and Next Steps

by Chris Borgen

Bellinger at Oxford: New Rules for the GWOT?

by Duncan Hollis

More on Possible Serbian ICJ Claim Concerning Kosovo

by Chris Borgen

Chambers Lists Top Public International Law Firms

by Peggy McGuinness

Serbia Threatens ICJ Litigation Over Kosovo Independence

by Julian Ku

The WTO Director-General’s Speech on Trade and Climate Change

by Steve Chamovitz

[We are pleased to have the following contribution from Steve Charnovitz of George Washington University Law School in Washington, DC. Prof. Charnovitz is a well-known expert on international trade. Some of his many publications are available here. ]

On December 9, 2007, Pascal Lamy, the Director-General of the World Trade Organization (WTO), gave a thoughtful speech on trade and climate change to the Informal Trade Ministers’ Dialogue on Climate Change in Bali, Indonesia. The speech, titled “Doha Could Deliver Double-Win for Environment and Trade,” is posted on the WTO website.

One could have imagined a WTO Director-General attending the United Nations Climate Change Conference delivering a message that the attendees should remember that any solutions they craft has to follow WTO rules. But that was not Mr. Lamy’s precise message. Rather, he offers a sophisticated forward-looking view of the relationship between the climate change negotiation and the WTO.

True, Mr. Lamy did say that “there is no doubt that the rules of the multilateral trading system – as a whole (i.e., the WTO “rule book”) – are indeed relevant to climate change.” But he did not recite particular rules as providing normative guidance to climate negotiators. Nor did he repeat some of the incorrect statements about WTO rules regarding environmental measures that are still posted on the WTO website. (For example, see “Trade and Environment at the WTO,” at 21, asserting that certain energy taxes would not be adjustable at the border.)

Instead, Mr. Lamy’s message is a positive one and emphasizes the goals of coherence between the WTO and the climate change regimes. For example, he explains that “in working towards an international accord on climate change, countries will certainly have to reflect on the role of international trade within such an accord.” Furthermore, he notes that: “… much work is being conducted at the moment – in various quarters – on how the WTO tool box of rules may be leveraged in the fight against this environmental challenge.” He also states forcefully that “There is no doubt that an immediate contribution that the WTO can make to the fight against climate change is to indeed open markets to clean technology and services.”

What I found most remarkable, and refreshing, about Mr. Lamy’s speech was his theme that the WTO could be a norm taker from the climate change regime. The speech repeats that point so many times that it could not have been an unrehearsed thought. Consider the following:

My starting point in this debate is to say that the relationship between international trade – and indeed the WTO – and climate change, would be best defined by a consensual international accord on climate change that successfully embraces all major polluters.

An agreement of the UN Framework Convention on Climate Change:

must then send the WTO an appropriate signal on how its rules may best be put to the service of sustainable development….

A multilateral agreement, that includes all major polluters, would be the best placed international instrument to guide other instruments, such as the WTO, as well as all economic actors on how negative environmental externalities must be internationalized.
(N.B. The posted text may be wrong here and Mr. Lamy could have said “internalized.”)

In other words, energy must be properly priced, and the production processes adjusted accordingly. It would then be incumbent upon the trading system to respond to such environmental rules as soon as they are crafted.

The WTO has rules on subsidies, taxes, intellectual property, and so on. All of these tools can prove valuable in the fight against climate change, but in that fight, would need to be mobilized under clearer environmental parameters that only the environmental community can set.

As I interpret Mr. Lamy’s remarks, he is suggesting to the epistemic communities on trade and on climate that WTO rules would not stand in the way of a multilateral consensus on the optimal instruments to address climate change. Indeed, he is suggesting that the WTO is capable of adaptation to better support a strengthened climate regime. Had he wanted to make this a more concrete legal argument, Mr. Lamy could have said that existing WTO rules on goods and services have flexible environmental exceptions and that the interpretation of existing WTO rules can take into account “relevant rules of international law applicable in the relations between the parties.” He could also have noted the possibility of the enactment within the WTO of authoritative interpretations, waivers, and amendments.

In summary, Mr. Lamy has struck just the right note in his recent speech on trade and climate. Rather than arguing that WTO rules reduce governmental options, he emphasizes instead the possibilities for attaining more coherence between trade and climate policy.

Science, Civil Society, and the Nobel Peace Prize

by Roger Alford

by Chris Borgen

Using Wiki to Draft Laws

by Roger Alford

The Hunger for Books

by Roger Alford

Does the Writ of Habeas Corpus Extend to U.S. Citizens Held by Multinational Forces?

by Julian Ku

What Law Governs the International Space Station?

by Julian Ku

Justice Kennedy in Boumediene Oral Argument

by Roger Alford

Annapolis and the Road Map

by Charlie Martel

[Charlie Martel is an adjunct professor at the American University Washington College of Law. His most recent article (available on SSRN here) examines the implications of Oslo and Road Map obligations on the legality of the Israeli security barrier, and was published last month at 17 Duke J. Comp. & Int’l Law 305]

First, thanks to Roger for offering me a chance to share some thoughts on the Annapolis Declaration. To bloggers and blog readers, I ask that you please be gentle with me because this is my first post. If I’ve gotten this hard subject wrong, I hope that responses will be vigorous but merciful.

I’ll start by agreeing with Roger’s views that the conference is cause for guarded optimism and that the reaffirmation of the Road Map was a significant substantive development that escaped much public discussion. Without a peace process the road ahead will look much like the road traveled for the past forty years. The Road Map is a better route.

An end to violence by both sides, required by the Road Map, is the sine qua non for the process and the outcome. Peace cannot be discussed, agreed on or maintained unless both sides have reliable, lasting sanctuary from violence. Easier said than done, I know, but the territorial steps called for in the Road Map can help reduce the political friction that helps lead to the cycle of violence.

The territorial commitments in the Road Map, while more nuanced and subject to interpretation than those on violence, are tremendously significant and bear attention. The parties’ renewal of their previous commitment to the Road Map provides a basis for both short term trust building steps and final status agreements on the critical issue of who gets what land.

As to the short term, the Road Map allows the encouragement of immediate Israeli guarantees on preliminary territorial issues addressed in the Road Map and Oslo Accords. Roger mentioned two expressly referenced in the Road Map–a settlement freeze and withdrawal from illegal outposts. I would add an end to construction of access roads and the security barrier in the occupied territories.

These latter steps are not referred to in the Road Map. However, in my view they are required by the Road Map, because the Road Map calls for “implementation of prior agreements” on territorial contiguity and a peace based on “agreements previously reached by the parties”. Those prior agreements are the Oslo Accords, which uniformly prohibit the parties from taking actions which change the territorial status quo in the occupied areas. Since settlements, roads and the barriers separately and cumulatively change the territorial status quo, it follows that they should be stopped in order to comply with the Road Map, Oslo and now the Annapolis Declaration.

Taking these steps immediately would be a confidence builder on hotly contested political questions that might dissolve Palestinian skepticism about Israel’s ultimate territorial intentions. It has to be said that on all of these steps, Israel has taken action which violate the agreements and international law. This does not justify any Palestinian violence, but it is one major reason why peace efforts have failed.

The steps also help get past two problems that have obstructed peace in the past–the “who goes first” problem and the “what happens after a terrorist attack” problem. Agreements to stop violence are essential and must come at the beginning of any peace process, but they are also fragile and hard to trust given awful and recent history. Both sides wait anxiously for hostilities to resume or increase and are ready to respond in kind when they do.

By contrast, a stop on settlements, barrier and road building, along with closing outposts, can also come at the beginning of the process, and would be tangible evidence of Israeli good faith on perhaps the most important issue to Palestinians. Moreover, these territorial steps need not be withdrawn even if a cease fire is violated because they are unrelated to counterterrorism. Thus, the territorial steps provide a way for Israeli and Palestinian authorities to sustain the peace process even if terrorist organizations attempt to sabotage it. To be sure, the peace process must not just survive violence, it must reduce and eliminate violence and disempower the groups who practice it. The process cannot withstand much violence, but meaningful territorial commitments are one way the process could continue, at least for a time, in the face of attacks.

The steps would also enable Israel to start the peace process by saying and showing that it is complying with the Road Map and Oslo on key issues related to the ultimate disposition of territory. This could strengthen Israel’s position on territorial questions, if it creates a climate for negotiations in which Palestine would agree to some Israeli retention of West Bank settlements. By contrast, if Israel expands settlements, roads and the barrier, the likely Palestinian response will be to insist on strict 1967 borders.

As to long term boundaries, the Road Map twice recognizes the goal to “end occupation that began in 1967”. Later, in the language of diplo-euphemism, it calls for “implementation of prior agreements, to enhance maximum territorial contiguity, including further action on settlements in conjunction with the establishment of a Palestinian state with provisional borders.”

It seems that in plain language, this means that the drafters of the Road Map hope Israel will withdraw from most settlements and that the border will ultimately be quite close what it was in 1967. I appreciate that the language can be read to allow for greater Israeli retention of West Bank territory, and that the issue of borders is reserved for final status talks. However, it seems to me that the present level and duration of Israeli presence in the West Bank violate the spirit and the letter of the Road Map and Oslo, do not allow for a viable Palestinian state and are not politically workable.

If the Annapolis Declaration means that Israel and Palestine are prepared to agree along the lines of the Road Map and Oslo, then there is cause for hope.

I’ll close with a point about timing, because the 2008 deadline gives me pause. Deadlines are great if you are part way to a deal; apparently the imposition of a deadline was key to the Good Friday agreement. But deadlines can be obstacles, particularly if they are set early on before much has been agreed on and anyone has a sense as to how long it will take to agree. Failure to meet Oslo deadlines helped stop that process, and the sense that the timing of the peace process was dictated by change of administration probably contributed to the failure of the Clinton administration’s end of term talks. When it comes to peace, later is better than never, so the choice the process offers, at least in its inception, should be “better now than later”, not “now or never”.

It’s easy to foresee the U.S. election and change of administration having an unhealthy impact on the process. The parties might give up if a lot has not been agreed upon by fall of 2008, and would probably benefit from lower visibility talks without a deadline. Formally or informally, the parties might be wise to get rid of the temporal trip wire and agree to continue with this process as long as they are making reasonable progress.

State Department Falls Short on Gay Rights

by Peggy McGuinness

More on Liptak’s Criminal Justice Exceptionalism: Making a Case for Comparative Law?

by Peggy McGuinness

The UK Discovers Alvarez-Machain!

by Kevin Jon Heller

ICC Jurisdiction Over GTMO – One Step Away?

by Duncan Hollis

Australia Ratifies Kyoto

by Kevin Jon Heller

The Annapolis Agreement

by Roger Alford

More on the Ratification of IHT Death Sentences (Updated)

by Kevin Jon Heller