March 2011

Welcome Guest Blogger Michael Ramsey

We are pleased to welcome Michael Ramsey back to Opinio Juris, this time as a guest blogger. Mike is a Professor of Law at the University of San Diego Law School where he teaches U.S. Constitutional Law, Foreign Relations Law and International Business Transactions. His scholarship often focuses on U.S. foreign relations; he is the author of The Constitution's Text...

Can the Coalition Lawfully Target Gaddafi?

Can the coalition forces using force in Libya under the Security Council’s authorizing resolution lawfully target Gaddafi personally?  This question has provoked some heated back and forth among political leadership of several coalition countries, including the US and the UK: Yesterday a war of words erupted between the U.S. and Britain after the U.K. government claimed Muammar Gaddafi is a legitimate target for...

Caution on the Private Manning letter

Although the publicly available information indicates that there is cause for concern about how Private Manning is being treated, and an impressive array of legal academics and others have signed the Ackerman/Benkler letter condemning that treatment, there are two reasons why I hesitate to join them. My first reason for hesitancy is best illustrated by the letter's use of...

Eric Posner Discusses ‘Executive Unbound’ at Volokh Conspiracy

In case you weren't aware, Eric Posner is discussing his and Adrian Vermeule's new and highly provocative book, The Executive Unbound, in a series of posts this week at Volokh Conspiracy.  The Libyan conflict has unsurprisingly raised the stakes over this discussion - Eric is engaging with vigor, and linking up the book's argument to current events and arguments.  Well...

Strategic Ambiguity and Libya

Many commentators have discussed the “strategic ambiguity” — undoubtably purposeful — of the Security Council’s resolution authorizing the use of force in Libya.  The resolution speaks of protection of civilians, but nowhere nails down the following, among many other issues:

• Is regime change a lawful policy as the means to protection of civilians?  There is little question that the Obama administration believes that it is the preferred outcome, but is that built into the terms of the SC resolution?  Alternatively, does the resolution permit only narrow actions either in defense of civilians coming under direct attack?
• Are the civilians only those who are genuinely non-combatants, or does it include, as has been suggested, even those civilians who have taken up arms in rebellion?  Meaning, does it include fighters who take part in hostilities but who are, under current rubrics in the law of armed conflict, regarded by many as still “civilians” even if targetable by opposing forces on account of their participation?
• Does the US remain committed to its Kosovo-era view that Security Council authorization for humanitarian intervention might be a good idea or legitimizing or diplomatically useful — but not a legal necessity?  Or has it by implication, and by the decidedly expansive language of its diplomats, accepted — or at least significantly furthered — the idea that only the Security Council can authorize such expeditions.  This was, after all, what the 2005 UN reform Final Outcome document — a General Assembly resolution, but one with greater diplomatic weight than most, because of its connection to a larger UN reform debate — said about the much-debated Responsibility to Protect, that it required Security Council authorization.

The fundamental fudge in all of this debate arises over the meaning of “humanitarian” action in relation to the use of force.  It might have a broad meaning that endorses, in this particular instance, regime change as the only way to achieve the humanitarian outcome — in other words, taking sides in the war, but without openly acknowledging it.  Or it might have a narrow meaning (or several potential narrow meanings) that limits intervention to “neutral” humanitarian activities.  Ensuring the delivery of humanitarian aid might be one such activity, even if it means using force; but the activity itself does not take sides and remains neutral.  Or it might have a narrow meaning that allows the interventionists to target fighters insofar as they are engaged in unlawful attacks upon civilians; once again, the interventionists are “neutral” and in a role akin to referees to ensure that the fighting sides leave the true non-combatants out of it. Different parties — read China and Russia and many other countries in the world not present on the Security Council — are able to take the Security Council resolution in any of these or other ways.  It was almost certainly drafted precisely to that ambiguous end.  The upside, of course, is that it provides an avenue by which parties can move forward.  The downside, equally obviously, is that precisely that features that make ambiguity attractive in the short run are the features that cause it to come-a-cropper in the longer run.  A longer run that, in the case of Libya, might turn out to be days or weeks rather than years or decades. Strategic ambiguity, as I discuss in a certain forthcoming book, is often a bad idea for these reasons, no matter how beloved of diplomats.  It indeed has an honorable, if occasional, place: the fiction of the two Chinas has long been a useful ambiguity, since the alternative might be a truly devastating conflict.  The question is one of judgment as to whether ambiguity lessens or instead stores up greater trouble in the future.

Warren Christopher

I was deeply saddened to hear of Warren Christopher’s passing this weekend. He was one of the last lawyer-statesmen of his generation within the Democratic party establishment – a veteran of World War II, with service in the Johnson and Carter administrations before being named Secretary of State by President Clinton. Jim Fallows’ has a lovely tribute here, which honors...

Libya and the Three Modes of the Security Council

In my forthcoming book on US-UN relations (appearing this summer from Hoover Press), Living with the UN, I describe three different “modes” of the Security Council.  By this I mean ways in which the Security Council might function, for some given situation, in regards to international peace and security.  (An early version of this is found in this paper on the Security Council in a multipolar world at SSRN, and I will post a non-final-edited version of the chapter from the book to SSRN as well.)  The three modes are:

• The Security Council as the “management committee of our fledgling collective security system.”  The phrase “management committee” comes from Kofi Annan, who used it repeatedly in his final months as Secretary General.  It refers to the Security Council as acting as a genuine “corporate” whole to make global determinations and take action regarding international security.
• The Security Council as the “concert of the nations,” acting as the conduit great powers, or at least a sizable number of them, in concert toward some end that has at least some blessing or acquiescence or non-veto by the members of the Security Council.  The difference from the management committee is that the Council acts  functionally not as a “corporate” body but instead a group of great powers, an agglomeration and not an entity.
• The Security Council as the “talking shop of the nations.”  In this mode, the Security Council is just that — a negotiating space for the great powers, in which one hopes they reach a modus vivendi with respect to themselves and others.

DeGirolami on the ECtHR decision in Lautsi v. Italy: Display of Crucifixes within “Margin of Appreciation”

My St. John's colleague Marc DeGirolami has a post up at Mirror of Justice summarizing today's European Court of Human Rights decision in Lautsi v. Italy.  The full decision is at the ECtHR's website here.  At issue in the case was the display of crucifixes in Italian public school classrooms. In 2009, the ECtHR ruled against Italy's display of the...

Libya No-Fly Operation: What Comes Next?

Now that the supporters of a no-fly zone over Libya have got the legal authority they required  -- both international and domestic (I agree with Peter that the president does not need additional congressional authority to vote for and contribute to a UN SC action) -- what comes next? Despite herculean efforts by the punditry to analogize the situation in...

Call for Papers: Inaugural ASIL Research Forum

Kal Raustiala asked that we post the following.  Sounds like an excellent initiative on ASIL's part. Call for Scholarly Papers The Inaugural ASIL Research Forum November 4-5, 2011 The American Society of International Law calls for submissions of scholarly paper proposals for the inaugural ASIL Research Forum to be held at UCLA Law School on November 4-5, 2011. The Research Forum is a new initiative...

Would Libya No-Fly Zone Require Congressional Authorization?

Bruce Ackerman and Oona Hathaway say yes; Jack Goldsmith, no.  I'm with Jack on this one.  Especially as authorized by the UN Security Council, there's solid precedent for proceeding without an advance congressional okay.  As Jack points out, Kosovo is probably the closest analogy in terms of the scope of the operation (a case in which authorizing legislation was voted...