Archive for
December, 2011

Detention Under the NDAA and the Limits of Analogy

by Kevin Jon Heller

My thanks to Marty and Steve for their fascinating and insightful posts (here and here) on the NDAA.  I have many thoughts about the Act, but I want to focus here on the idea that U.S. courts can and should analogize to detention in international armed conflict in order to determine what it means for a person to have “substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.”  I note at the outset that Marty and Steve never mention international human rights law (IHRL), thus accepting — at least implicitly — two very controversial assumptions.  The first is that the United States is engaged in a global non-international armed conflict (NIAC) with al-Qaeda, such that the detention of any member of al-Qaeda anywhere in the world (except U.S. citizens and lawful resident aliens apprehended in the U.S.) is, in fact, governed by the laws of war.  I have addressed the problems with that position ad nauseum (see, e.g., this post) and won’t repeat them here.  The second assumption is that, in situations of actual armed conflict, international humanitarian law (IHL) completely displaces IHRL with regard to detention authority.  That is a very controversial position, particularly in the context of NIAC, given that the only applicable IHL in NIAC is Common Article 3, which regulates detention but does not authorize it.  A strong case can thus be made that it is inappropriate to simply analogize to detention in IAC to determine the limits of detention in NIAC; the applicable rules may well come from IHRL — the concept of security detention, in particular — instead.  (For a discussion of the interplay between IHL and IHRL in NIAC, see this Chatham House report.)

Let’s put those issues aside, however, and focus on what it would mean to determine the limits of “substantial support” by reference to the rules of IHL that apply in IAC…

The NDAA: The Good, the Bad, and the Laws of War–Part II

by Marty Lederman

By Marty Lederman and Steve Vladeck*

Section 1021 of the NDAA and the Laws of War

In our companion post, we explained that section 1021 of the NDAA will not have the dramatic effects that many critics have predicted–in particular, that it will not affect the unresolved question of whether the 2001 Authorization for Use of Military Force (AUMF) would authorize a future President to place a U.S citizen or resident who is apprehended in the United States in long-term military detention. (The issue is moot during President Obama’s tenure, since “it is the firm position of the Obama Administration that suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts, as they should be,” and that “when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.”  As the President reiterated today, “my Administration will not authorize the indefinite military detention without trial of American citizens.  Indeed, I believe that doing so would break with our most important traditions and values as a Nation.”)

In this post, we will address David Cole’s concerns about the relationship between the AUMF detention authority and the laws of war. This has the potential to be a very important question—indeed, it’s the one important substantive issue that has engendered an interpretive dispute among the judges on the D.C. Circuit.  In short, and as we explain in more detail below, the Obama Administration has advanced the view that the AUMF detention authority should be construed as limited and informed by the laws of war—a reading that is supported by the rulings of most habeas judges.  But two judges on the court of appeals have insisted to the contrary that it would be “both inapposite and inadvisable” for courts to look to the laws of war when construing the Executive’s detention authority under the AUMF—a view that has engendered some confusion in recent habeas cases.

How does section 1021 of the NDAA affect this dispute?

The NDAA: The Good, the Bad, and the Laws of War–Part I

by Marty Lederman

By Marty Lederman and Steve Vladeck*

Editorial pages and blogs have been overrun in the past couple of weeks with analyses and speculation about the detainee provisions in the National Defense Authorization Act, which the President has just signed into law.  One of the major disputes concerns whether and how the NDAA might alter the status quo.  In this post, we’ll try to synthesize the competing views offered by David Cole and Raha Wala, who remain quite critical of the provisions because of the changes they possibly presage, with those of Bobby Chesney and Ben Wittes, who argue that the NDAA doesn’t do nearly as much as its critics claim to affect the Executive’s current authorities and practices.  As we explain, there’s considerable merit to both sets of arguments.  Perhaps the most important impact of the NDAA, however, may be with respect to a question that has received comparatively little attention–namely, the effect of the laws of war on the Executive’s military detention authority.  In a companion post, we take a closer look at that important question.

The Bad

David Cole is surely correct that Subtitle D (“Counterterrorism”) of the NDAA contains some very troubling provisions—especially sections 1026 and 1027, which continue the deeply unfortunate and counterproductive authorities in current law prohibiting the use of funds to build a facility in the U.S. to house GTMO detainees and to transfer any such detainees to the U.S. for any reason, including criminal trial; and section 1028, which continues the current statutory requirement that the Secretary of Defense must make onerous certifications regarding the receiving nation’s security measures before any GTMO detainee can be transferred to another country.  These provisions will continue to prevent the closure of the detention facility at Guantánamo, notwithstanding the President’s view, which we share, that “the prison at Guantánamo Bay undermines our national security, and our nation will be more secure the day when that prison is finally and responsibly closed.”

Moreover, and as David further notes, section 1022 purports to establish a presumption in favor of indefinite military detention, rather than criminal arrest and prosecution, for some future foreign al-Qaeda suspects.  In the President’s words, it is in this respect “ill-conceived and will do nothing to improve the security of the United States,” and “is unnecessary and has the potential to create uncertainty.”  Fortunately, amendments adopted late in the legislative process—particularly a change to the section 1022 waiver provision and the addition of a new provision that “[n]othing in [section 1022] shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person”—will, we think, ensure that section 1022 is mostly hortatory, and will in practice allow the President to adhere to his commitments that “suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts, as they should be”; that “our military does not patrol our streets or enforce our laws—nor should it”; and that “when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.”  As the President wrote today, he will construe section 1022 to afford “the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States.”  (We would also note that, under a plain-language reading, section 1022 would not even cover persons apprehended in the U.S. by the FBI or other law-enforcement officials:  That provision applies only to a person “who is captured in the course of hostilities authorized by the AUMF”—and in the case of a domestic FBI or other law-enforcement arrest, presumably neither the arresting entity nor the individual would be engaged in “hostilities authorized by the AUMF.”  On this reading—which which is fortified by the language clarifying that 1022 does not affect FBI authorities—the statute could only apply in the first instance to someone captured by a U.S. agency acting pursuant to the AUMF, which in effect would mean apprehensions by the armed forces overseas.)

Even so, enactment of section 1022, ambiguous and potentially toothless though it may be, is not without costs.  It might well convey to the world that the American legislature views military detention as an unremarkable, even preferred, option in some terrorism cases, thereby blurring the important message the President has been endeavoring to convey, through word and practice, that “[t]he strong preference of this Administration is to accomplish [incapacitation of persons who are threats to the American people] through prosecution.”  Moreover, as Raha Wala points out, the very existence of section 1022 might give a future Administration a slight measure of political cover if it decides to reverse President Obama’s policy and begin to detain in military custody persons such as another Abdulmutallab, who are captured in the United States.  All in all, then, section 1022 is an unwelcome provision, even if it will (as we hope) have little or no practical impact on executive practice.

The Good

It is also worth emphasizing, however, that the Obama Administration, civil liberties and human rights organizations, and some members of Congress worked tirelessly and quite effectively to improve the final bill dramatically from the versions the Senate and (especially) the House had earlier passed. Because of those efforts, Subtitle D of the NDAA is not nearly as problematic as many critics have suggested.  Indeed, the final bill actually contains a handful of provisions that improve upon current law, and one—which will be our focus here—that helps to resolve an important interpretive debate about whether the Executive’s detention authority under the 2001 Authorization for Use of Military Force (AUMF) should be informed and limited by the laws of war.

The New York Times editorial on the NDAA is, unfortunately, representative of many of the false alarms being sounded about the legislation.  The Times complains that the NDAA “ban[s] . . . spending any money for civilian trials for any accused terrorist,” “strip[s] the F.B.I., federal prosecutors and federal courts of all or most of their power to arrest and prosecute terrorists,” and “give[s] future presidents the authority to throw American citizens into prison for life without charges or a trial.”

If this were an accurate description of the final legislation, it would be even more extreme than the House-passed version, which the President’s senior advisers recommended that he veto.  But the bill the President just signed does none of these things.

President’s Signing Statement on National Defense Authorization Act

by Marty Lederman

The President signed the NDAA today, and issued the following signing statement.  Steve Vladeck and I will shortly post on the details of the bill — what’s bad about it; how it has been widely misconstrued to be much worse than it is, in fact; and how in at least one important respect it marks an important resolution of an outstanding question involving the interplay of the AUMF detention authority and the laws of war.

Statement by the President on H.R. 1540

Today I have signed into law H.R. 1540, the “National Defense Authorization Act for Fiscal Year 2012.” I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed. In hundreds of separate sections totaling over 500 pages, the Act also contains critical Administration initiatives to control the spiraling health care costs of the Department of Defense (DoD), to develop counterterrorism initiatives abroad, to build the security capacity of key partners, to modernize the force, and to boost the efficiency and effectiveness of military operations worldwide.

The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.

Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe…

The Military Commissions Fiasco: Now with Extra Fiasco-ness!

by Kevin Jon Heller

In case the government’s actions haven’t yet convinced you of the fundamental unfairness of the commissions (such as making up war crimes), perhaps its decision to treat the attorney-client privilege as optional will do the trick:

The new commander of the Guantanamo Bay prison wants a team of government and law enforcement officials to be allowed to review all communications between lawyers and inmates accused of helping organize the Sept. 11 attacks, The Associated Press has learned.

The proposed changes, contained in a 27-page draft order, have sparked a backlash from the Pentagon-appointed attorneys representing the five Guantanamo prisoners charged in the attacks. They say the new rules would violate attorney-client privilege and legal ethics and deprive the prisoners of their constitutional right to counsel.

[snip]

Under the new rules, a “privilege team,” which would include Department of Defense and law enforcement officials, would conduct a security review of all communications to the prisoners, according to the memo. The lawyers say such a review is unnecessary, since they all have security clearances and know not to release classified information, and also overly intrusive.

They say it would be impossible for Woods to ensure that these officials do not share this information with the prosecution or others because the members of the team wouldn’t be under his command.

The chief defense counsel of the military tribunals, Marine Corps. Col. Jeffrey Colwell, said he shares the concerns of the attorneys in the Sept. 11 case. He also objects to a provision in the new rules that would allow detainees to receive only letters from their lawyers and not any supporting documents such as legal motions or articles about their case.

The government is aware of the implications of the new rule, but it doesn’t want you to worry.  The new rule instructs the privilege team to preserve attorney-client privilege “to the fullest extent possible.”

Don’t you feel better?

UPDATE: Steve Vladeck has a nice post on whether defendants at the commissions have a Sixth Amendment right to counsel here.

Kim Jong-il’s Funeral Procession

by Roger Alford

“He looked up again at the portrait of Big Brother. The colossus that bestrode the world! The rock against which the hordes of Asia dashed themselves in vain! … He was back in the Ministry of Love, with everything forgiven, his soul white as snow…. He gazed up at the enormous face…. O cruel, needless misunderstanding. O stubborn, self-willed exile from the loving breast! Two gin-scented tears trickled down the sides of his nose. But it was all right, everything was all right, the struggle was finished. He had won the victory over himself. He loved Big Brother.”

~ 1984

New Cambridge Journal of International & Comparative Law

by Kevin Jon Heller

Our friends at Cambridge University have asked me to bring the following journal to readers’ attention, which has been established by James Crawford:

Cambridge Journal of International & Comparative Law is a newly established double-blind peer reviewed, open-access journal which aims to publish high-end legal scholarship. It has a broad focus on international and comparative law and a particular focus on publishing work that examines the intersection of different international, domestic and transnational legal regimes. The Journal aims to become a platform for constructive and critical dialogue between the well-established academics and practitioners on the one side and the younger generations on the other. It will have two substantive issues per year and a annual special issue, which will critically examine the decisions of the UK Supreme Court from the preceding judicial year. The CJICL is the only journal to produce a full issue review of the previous three terms of the work of the UK Supreme Court.

The journal is also soliciting contributions to its inaugural issue(s), along with requests for contributions to its associated blog:

The Editorial Board of the Cambridge Journal of International and Comparative Law (CJICL), an open access, double-blind peer review journal based at the University of Cambridge, is pleased to announce the CJICL are now accepting submissions for both the inaugural and posterior issues.

The Board invites long articles, short articles, case notes and book review submissions that broadly engage with the themes of public and private international and comparative law, as well as EU and transnational law.  The CJICL is particularly interested in work that examines the intersection of different legal regimes – domestic, regional, transnational, international – as well as cutting edge international legal scholarship.

All submissions will be double-blind peer reviewed before a final decision on publication is taken. All long articles and some short articles will be sent to our Academic Review Board, which consist of a distinguished international and comparative law scholars and practitioners. A full list can be viewed on our website www.cjicl.org.uk. All other articles, case notes and book reviews will be double-blind peer reviewed by our Editorial Board.

The closing date for submissions is the 1 February 2012. Successful authors will be notified in April 2012 as to whether they will be published in one of our two substantive issues for the year 2011-12. Manuscripts must be submitted via our website – click on ‘Submissions’ at www.cjicl.org.uk – by the closing date. Please see below for further information.

In addition to a call for submissions for the Journal, the Editorial Board would like to invite authors to submit c. 1000 word commentaries for our new online blog (available at www.cjicl.org.uk), by e-mailing them to: blog [at] cjicl [dot] org [dot] uk with your name, institution and submission in a separate word (.doc) or richtext (.rtf) document.

Andrew Sanger and Rumiana Yotova

Editors in Chief of the Cambridge Journal of International and Comparative Law

Editors [at] cjicl [dot] org [dot] uk

Additional information on submissions can be found here.

Foreign Policy’s Global Thinkers: Old Media 3, New Media 2

by Roger Alford

Foreign Policy has just published its rankings of the top 100 Global Thinkers for 2011. As expected, there were the typical assortment of statesmen, economists and activists. But what really stood out was the continued dominance of old media in the shaping of foreign policy. We may be prone to think of 2011 as the year of new media thinkers, with social media outlets giving voice to protesters that toppled dictators and transformed regions.

But for every two new media global thinkers recognized by Foreign Policy, there were three global thinkers recognized for their work in old media: television, books, and journals. By my count, there were 32 FP global thinkers recognized for utilizing traditional television, books, or journals to communicate their message, while there were 21 FP global thinkers who were recognized for using Facebook, YouTube, Twitter, and blogging to spread their message. (Of course, I recognize that many of these public intellectuals use a variety of media to communicate their message; these categories are based on Foreign Policy’s description of their influence).

Here are the two lists:

France Will Not Arrest Former ICTY Spokeswoman

by Julian Ku

France has turned down the ICTY’s request that it detain and turn over a former ICTY spokeswoman who has been sentenced to a week in prison for contempt of that court.

PARIS — France refused Monday to carry out an arrest mandate from the Yugoslav war crimes tribunal against a French journalist convicted of contempt for revealing confidential information about the tribunal’s work.

The nation’s chief Foreign Ministry spokesman, Bernard Valero, said France’s accords with the International Criminal Tribunal for the former Yugoslavia require it to carry out mandates against those accused of “serious crimes” but not offenses against the court itself, such as Florence Hartmann’s contempt conviction.

I don’t know any of the details of France’s agreements with the ICTY, but this certainly sounds like the right result.  I don’t think the Security Council Resolutions obligate states to cooperate with the ICTY on matters besides serious violations of international humanitarian law, unless there is some other provision I am not aware of. An interesting legal question, though, nonetheless.

Time to Fix the European Court of Human Rights?

by Julian Ku

Big things are afoot in Europe, especially as the United Kingdom inches further and further away from European institutions.  The U.K.’s refusal to join the recent fiscal reform plan has gotten all the headlines, but I hadn’t realized that the U.K. is also embroiled in an ongoing battle of wills with the European Court of Human Rights over that Court’s order that the UK enfranchise its felons. In addition to continuing to resist implementing that decision, the U.K. is taking its opportunity as president of the Council of Europe to push big reforms of the ECtHR.

Ministers hope to win big changes to the way the Court operates during Britain’s six-month spell in the rotating chairmanship of the 47-strong Council of Europe, which lasts until May. A leaked document, setting out reform plans agreed jointly by the UK and Swiss governments, says: “Urgent action is needed in order to avoid further damage to the reputation and effectiveness of the convention system.”

It accuses the Court of interfering with issues “that do not need to be dealt with at the European level” and says it must “address growing public and political concern” about the way it functions.

Pointing to a backlog of 160,000 cases, the report says many of them are “hopeless” and that the court is used as a last resort by those whose cases have been rejected – rightly – in their own country.

Of course, the UK Independent has no further details on what exactly this secret reform plan is. But dissatisfaction with the ECtHR appears to be growing in the U.K. and some real reform may come out of this.

Should the Sudanese Defence Minister Have Been Charged with Genocide?

by Kevin Jon Heller

The OTP is seeking an arrest warrant for Abdelrahim Mohamed Hussein, the Sudanese Defence Minister, in connection with a number of attacks on civilians in Darfur between August 2003 and March 2004.  The request alleges that Hussein is responsible for war crimes and crimes against humanity committed during the attacks, but does not include a genocide charge.  According to Bill Schabas, that absence indicates the “incoherence” of the OTP’s approach to genocide in Darfur:

Where is the genocide charge? In the case of President Bashir, the Prosecutor went on appeal when the Pre-Trial Chamber refused to authorize a charge of genocide. I have heard him lecture about ‘the ongoing genocide by attrition’ that continued until 2008 or 2009. For all I know, the Prosecutor thinks that genocide is still going on. How is it that there is an ongoing genocide but that the Minister of Defence does not seem to be involved? After all, the charges against Bashir were essentially based on the idea that as President of the country, he was responsible for the attacks. So why are the attacks genocidal for Bashir but not for Hussein?

The whole business smacks of incoherence. When he applied for the arrest warrant against Bashir, the Prosecutor spoke of Bashir’s orders to commit genocide, and said: ‘The attacks on villages across Darfur from March 2003 to the present were designed to kill members of the targeted groups and force the survivors from their lands, but also to destroy the very means of survival of the groups as such as described in paragraph 15 above.’ Aren’t these the facts that Hussein is charged with too?

With respect to Bill, I disagree.  The absence of a genocide charge against Hussein does not necessarily indicate that the OTP believes he wasn’t involved in the genocide between 2003 and 2004.  The OTP is not obligated to charge a defendant with every international crime supported by the evidence; the desirability of particular charges must always be be balanced against a variety of trial concerns, such as the quality of proof and the need to conserve scarce prosecutorial resources. Genocide charges are notoriously difficult to prove — particularly the crime’s specific-intent requirement.  So the OTP might have concluded, rationally, that it will be easier to establish the necessary specific intent for Bashir, the Head of State, than for Hussein, Bashir’s subordinate.  Or perhaps the OTP has decided that, from an expressive standpoint, it will be sufficient to hold the Head of State responsible for genocide in Darfur; additional genocide prosecutions, with their attendant time and cost, are unnecessary.  Indeed, were I advising the OTP, that is precisely the position that I would take.  One genocide defendant is enough.

It is perfectly legitimate to question whether Bashir is guilty of genocide.  (I seem to be in the minority of scholars who think that he is, although I strongly agree with Schabas and others that Moreno-Ocampo needs to stop referring to the “ongoing genocide,” focusing instead on the events of 2003 and 2004.)  It is also perfectly legitimate to believe that the OTP should, in fact, charge defendants with every crime supported by the evidence, regardless of how difficult and time-consuming those crimes may be to prove.  But it is not “incoherent” for the OTP to take practical concerns into account when making charging decisions.  Indeed, I think it would be far more problematic for them not to.

Nicaragua Files ICJ Action Against Costa Rica

by Julian Ku

I am doubtful the ICJ will be able to ultimately settle this ongoing border dispute, but both countries seem to be relying on the ICJ to resolve this matter. Nicaragua filed an action Wednesday against Costa Rica, alleging:

In its Application, Nicaragua claims inter alia that “Costa Rica’s unilateral actions . . . threaten to destroy the San Juan de Nicaragua River and its fragile ecosystem, including the adjacent biosphere reserves and internationally protected wetlands that depend upon the clean and uninterrupted flow of the River for their survival”.

Costa Rica had earlier filed an ICJ action against Nicaragua over roughly the same border dispute. So it is interesting that both sides are now involved in separate, related ICJ litigation.  Is there an ICJ procedure for consolidation? Seems a good opportunity for it.

Review Essay of My Book in the Oxford Journal of Legal Studies

by Kevin Jon Heller

Don’t worry, I will not be linking to any and all reviews of my book.  (Only the good ones.)  I mention this review — a review essay written by the distinguished scholar David Fraser at Nottingham (sub. req.) — because it uses my book as a springboard to discuss a number of important historiographic issues concerning World War II scholarship that readers may find interesting.  Here is the abstract:

This review article discusses the emergence of the subsequent proceedings before the US Military Tribunals from the shadows of the trial of ‘Major War Criminals’ at the International Military Tribunal as explored in Kevin Jon Heller’s The Nuremberg Military Tribunals and the Origins of International Criminal Law. The article applauds Heller’s efforts in producing a detailed examination of an understudied aspect of the origins of international criminal law. The essay suggests that given the specific focus of the author on the genealogy of international criminal law, important legal historical questions are left unexamined. It suggests a research agenda that would focus more specifically on the centrality of the Shoah to National Socialism and argues that the current trend in historical scholarship focusing on war crimes trials as a distinct subject of inquiry could provide a fruitful basis for future socio-legal research into the Nazi state and its legal apparatus.

I completely agree that the book does not answer all — or even most — of the legal questions concerning WW II-era trials.  I very much hope that others will fill the lacunae that my book leaves behind.

Nuremberg Scholars Amicus Brief in Kiobel

by Kevin Jon Heller

A group of distinguished Nuremberg scholars, including myself (minus the distinguished part), have filed an amicus brief in Kiobel v. Royal Dutch Petroleum on behalf of the petitioners.  The brief argues that although the Nuremberg trials themselves did not involve the prosecution of juridical persons such as corporations, a wide variety of Allied actions outside of judicial fora indicate that the Allies believed that corporations were liable for violations of international law.  Here is the summary of the argument:

An accurate understanding of the Nuremberg-era jurisprudence and Nuremberg trials is critical to the question of whether corporations and organizations may be held liable under international law. At the various trials conducted by the Allies between 1945 and 1948 at the Palace of Justice in Nuremberg and in other courtrooms throughout occupied Germany only German industrialists, and not the German corporations themselves, were criminally prosecuted. However, the Allied Control Council – the international body governing occupied Germany and issuing Control Council Law No. 10 under which the Nuremberg Military Tribunals were held between 1946 and 1949 – deployed a range of remedial measures to hold juristic persons, including corporations, accountable for violations of international law. Such measures included the dissolution of corporations and the seizure of their assets. Indeed, even before the first Nuremberg trial began, the Allied Control Council had already dissolved a number of German corporations, including most prominently the world’s largest chemical corporation Interessengemeinschaft Farbenindustrie Aktiengesellschaft (“I.G. Farben”), and seized their assets. As a result, when the international trial of the Farben defendants took place pursuant to Control Council Law No. 10, I.G. Farben had already suffered corporate death under international law pursuant to Control Council Law No. 9.

The entire point of the trials that took place in Courtroom 600 of the Nuremberg Palace of Justice in the American zone, and in courtrooms of the other zones throughout occupied Germany, pursuant to Control Council Law No. 10 was to put natural persons in the dock. It was to show that Nazi leaders and other perpetrators, including German industrialists, could be held criminally responsible under international law regardless of rank or position. In putting only natural persons in the dock, the Allied prosecutors did not intend to create an international law norm that corporations are immune. In fact, the judicial actors at Nuremberg specifically recognized that international law permitted the punishment of corporations, but chose not to judicially prosecute for political and economic reasons. As a result, punishment of German corporations under international law took place outside of the courtroom. The absence of criminal penalties imposed by an international judicial tribunal against German corporations is more appropriately understood as a choice to sanction such corporations through other international law mechanisms, rather than through a criminal trial – and not as a rejection of the international law authority to hold corporations accountable.

The Control Council operated as a government of occupation, whether under the customary international law principle of debellatio or pursuant to the customary international law of occupation, as reflected in the 1907 Hague Regulations provisions. The norms which the Allies applied were anchored in international law. This was as true of the Allied occupation courts, such as the International Military Tribunal and the Nuremberg Military Tribunals, as it was of the Allied Control Council laws and directives. Whether at the Palace of Justice courthouse in Nuremberg or at the Allied Control Council headquarters in the Kammergericht courthouse in Berlin, the Allied Control Council officials and Allied judges were all applying international law.

The erroneous analysis of the Kiobel majority concludes that “[n]o corporation has ever been subject to any form of liability (whether civil, criminal, or otherwise) under the customary international law of human rights.” Kiobel, 621 F.3d at 148. In reaching this decision, the majority narrowly focused on the criminal trials and ignored other actions taken under customary international law against corporations and organizations outside the courtroom. The impression left by the majority opinion in Kiobel is an historically inaccurate conclusion that what came out of what we label in shorthand as “Nuremberg-era jurisprudence” is a rule that corporations are immune under international law. We respectfully submit that the Founders of Nuremberg and those working with them would have been dismayed by this conclusion.

The brief is signed by Omer Bartov, Michael Bayzler, Donald Bloxham, Lawrence Douglas, Hilary Earl, Hon. Bruce Einhorn, David Fraser, Sam Garkawe, Stanley A. Goldman, Gregory S. Gordon, Michael J. Kelly, Matthew Lippman, Michael Marrus, me, Fionnuala D. Ni Aolain, Kim Priemel, Cristoph Safferling, and Frederick Taylor.

NYTimes Sues to Get “Targeted Killing” Legal Advice

by Julian Ku

What is fascinating about this lawsuit is the focus on getting the “legal advice” as opposed to simply information about the targeted killings policy.

The New York Times has filed a lawsuit against the Department of Justice charging that the government failed to release information under the Freedom of Information Act on records surrounding questions of the legality of targeted killing, especially as it relates to American citizens.

“Given questions surrounding the legality of the practice under both U.S. and international law, notable legal scholars, human rights activists, and current and former government officials have called for the government to disclose its legal analysis justifying the use of targeted lethal force, especially as it applies to American Citizens,” the lawsuit contends.

I don’t know enough about FOIA law to say much, but I think it will be some tough sledding for the NYTimes to get internal legal advice. Why doesn’t someone just leak it?  It’s been done before.

Bleg from a Journalist Friend in a Hurry

by Kenneth Anderson

I got a message from a journalist friend who needs urgent help with the following; if someone could put something into the comments to direct him, I’d be very grateful as I’m in a meeting at the moment where I’m not supposed to be doing this sort of thing online.  He’s looking for some kind of official source rather than just citing other newspaper accounts.  Thanks!

I’m looking for something official from the ICC on Gen. Mohammed Ahmed Mustafa al-Dabi and the nature of the crimes he’s accused of in Darfur; couldn’t find anything on their website. Any idea where I might find something deeper than these wire pieces?

Update: I easily get confused with names, but it doesn’t look like he has been indicted but that some advocacy groups have been calling for him to be investigated.  Let me know in the comments if that’s not correct. Thanks.

Law & Development Update: Professor Easterly Evaluates the Highly Problematic “Christmas” Aid Program

by Kenneth Anderson

The NYU Development Research Institute, led by Professor William Easterly, has published the first formal international development evaluation of that international aid program known as “Christmas.” It is a disturbing report, to say the least.  Some highlights:

Lack of Efficient Modalities: The Christmas Gifts appeared to consist largely of in-kind aid.  This contradicts abundant evidence of best practices emphasizing cash transfers as superior to in-kind aid. There was some evidence of #SWEDOW (“Stuff We Don’t Want”) in-kind transfers, the worst possible kind of aid, usually involving fruitcakes.

Lack of Efficient Timing: Contrary to the recommendation that aid consist of an even, predictable flow, the Christmas Gifts program is mostly concentrated on one day, with a few unpredictable lags ranging from a few days (“late deliveries”) to months (“handmade gifts”).

Lack of Net Flows: Evaluators found Christmas Gift recipients engaged in behavior that frustrated the aid program, with Recipients acting as Donors to their own Donors, reducing their own net aid intake. They explained their counterproductive behavior with non-standard concepts such as “Tis more bless’d to give than to receive.”

There were aspects unaccountably unaddressed by the evaluation – principally the role of behavioral incentives, in the form of surveillance by drones by which to make up “naughty” and “nice” lists.  I can only add that since Amazon has taken over the whole program under contract to the United Nations Development Program, it is all anticipated to work much more smoothly.

Progress

by Kevin Jon Heller

Call for Papers: Jus Post Bellum at Leiden

by Kevin Jon Heller

My friends at Leiden — my alma mater — have asked me to post the following call for papers:

Call for Papers for the Jus Post Bellum Project Launch Conference

The Jus Post Bellum Project at the Grotius Centre for International Legal Studies at Leiden University has issued a call for papers for the Project’s launch conference.

The conference, entitled “‘Jus-Post-Bellum’: Mapping the normative foundations,” will be held May 31 to June 1, 2012, in The Hague.  The organizers describe the Project as follows:

The proper ending of conflict and the organization of post‐conflict peace is one of the greatest challenges of contemporary warfare. This issue has resurfaced in the context of modern interventions and their aftermath. The Grotius Centre for International Legal Studies’ Jus Post Bellum Project investigates whether and how a contemporary jus post bellum may facilitate greater fairness and sustainability in conflict termination and peacemaking. It seeks to establish the historical and normative foundations of a modern jus post bellum, including its relationship to jus ad bellum and jus in bello. The project seeks to identify the contours, operation, and impact of this concept, based on analysis of historical peace settlements, contemporary peace agreements and case‐studies. In addition, the project seeks to develop a catalogue of rules and principles of post‐conflict peace in order to guide priorities and policy choices in a number of key areas: conflict termination and ending of conflict, the interplay between international humanitarian law and human rights law in post‐conflict settings, the balance between “local ownership” and foreign authority, reconstruction and rule of law reform, the treatment of individual criminal responsibility in peace settlements, and the allocation of property rights.

The inaugural conference will address these issues. To that end, organizers particularly seek papers, to be presented at the conference and considered for publication in a conference volume, that fall
within these 3 issue areas:

► Conflict termination and the definition of “post”
► Modern conflicts and the definition of “bellum”
► Which law applies to the transition to peace — the “jus” in jus post bellum

English-language abstracts of no more than 300 words, plus CV, should be submitted no later than Friday, January 13, 2012, to jpb [at] cdh [dot] leidenuniv [dot] nl.

The full call for papers is here.

DOD and NATO Should Conduct Analysis of State Practice of Targeting in Libya Air War

by Kenneth Anderson

CJ Chivers and Eric Schmitt have a lengthy and important front-page story in this past Sunday’s New York Times detailing scores of instances of civilian collateral damage from NATO air operations in the Libya fighting.  I’m surprised it hasn’t received more attention, though North Korea surely has something to do with it.  Although I have no special factual knowledge beyond the public and media accounts, I incline to believe that the Times’ accounts are correct and that the real numbers are considerably higher.  (This is apart from a separate question of violations of the laws of war committed by the Libyan rebels as NATO co-belligerents and whether NATO has any attributional responsibility for the actions of these forces, or for negligence in failing to take reasonable steps to restrain these forces. That legal issue is not considered in this post or in the original NYT article.)

As readers know, I’m an uncompromising advocate of precision technologies in warfare, including drones and other remotely controlled machines that, by removing the issue of soldiers defending themselves, allow for more careful targeting decisions.  I’m also a strong advocate of the Obama administration’s targeting killing programs, both by the military and the CIA.  That said, proponents of precision targeting through better technology have long risked raising expectations well beyond what technology supports at any given moment.  Gains in civilian protection come incrementally, much of it through trial and error, a combination of technology and experience gained about operations using it in the field.  Either over-promising too much, too soon or demands that any “improvement” meet a zero damage, strict liability standard has the effect of stopping improvement in its tracks because improvements come incrementally, one grinding step at a time.  Magic bullets come after a long series, over decades, of unmagic ones.

Unsurprising but nonetheless disappointing, then, was the initial reaction of NATO officials to these Times reporters in their inquiries.  It amounted to a shrug of the shoulders:

By NATO’s telling during the war, and in statements since sorties ended on Oct. 31, the alliance-led operation was nearly flawless — a model air war that used high technology, meticulous planning and restraint to protect civilians from Colonel Qaddafi’s troops, which was the alliance’s mandate.  “We have carried out this operation very carefully, without confirmed civilian casualties,” the secretary general of NATO, Anders Fogh Rasmussen, said in November.

“Without confirmed civilian casualties”?  Not confirmed because NATO declined to make inquiries.  Only after the Times reporters gave NATO officials a 27 page memo documenting collateral damage deaths in particular sites in Libya did NATO change its stance. (Note that Russia is now pressing for an accounting of NATO-caused civilian casualties in the Security Council.)

Two weeks after being provided a 27-page memorandum from The Times containing extensive details of nine separate attacks in which evidence indicated that allied planes had killed or wounded unintended victims, NATO modified its stance.  “From what you have gathered on the ground, it appears that innocent civilians may have been killed or injured, despite all the care and precision,” said Oana Lungescu, a spokeswoman for NATO headquarters in Brussels. “We deeply regret any loss of life.”

That is not an offer by NATO to conduct an investigation; it’s a dismissal of the issue.  NATO will conduct an after-action review in the form of “lessons learned” — an essential and useful exercise for guiding future operations — but apparently not a formal legal review of targeting.  This seems to me a grave mistake — and particularly a lost opportunity for the United States.  NATO should conduct a legal review of targeting in the Libya campaign, and the United States military should likewise undertake its own review of all NATO targeting in Libya.   I do not find anything in the Chivers and Schmitt report that looks to raise issues of negligence under the proportionality standard for collateral damage in the laws of war.  Liability is not the issue or the reason for a formal legal review (I suppose it might arise in a very extreme case of gross and wanton recklessness, but the legal presumption and legal safe harbor in favor of the commander’s good faith judgment on issues of proportionality is profound and does not appear to be an issue in what the Times writes).

The real reason for doing this is, instead, that the Libya hostilities offer an opportunity for the United States to examine targeting standards as state practice.  State practice defended as lawful, as undertaken by the United Kingdom, France, and other allies, in an operation undertaken on their initiative, and with their own equipment, intelligence, legal officers, targeting standards and operational law – rather than simply piggybacking on the US (I realize how much of a behind-the-scenes role the US played; but it was still an unusual instance of non-US NATO countries doing it themselves).  It’s an opportunity for the US to enunciate a legal baseline of state practice in targeting regarded as lawful in particular factual circumstances by its closest allies.  And to do so in circumstances that are not Afghanistan after ten years of war, but instead a new situation, with vastly less intelligence and other capabilities than are available today in the Afghanistan conflict. Circumstances, however, in which the targeting, and collateral damage, was regarded by our closest allies and friends as being compliant with the laws of war.

Thus, one reason DOD should insist on an event-by-event legal review of targeting state practice is implicitly to reiterate that the standards applied in Afghanistan today are proper policy — and also that they far, far exceed any legal requirement.  And that the US’s NATO allies demonstrated important state practice which they regarded as lawful in the conduct of the Libya operations.  Because the next time the US goes to war, it will likely be a lot closer in its initial intelligence and information about targeting to what just took place in Libya than what goes on today in Afghanistan.  The US should be able to draw upon the detailed, incident-by-incident state practice of its closest allies, and their defense of those practices as lawful, as support for its own conduct.

That’s my basic policy take-away — a plea to DOD to insist on a serious analysis of what was regarded in Libya as lawful targeting, including acknowledgment of its limitations and regrettable yet lawful collateral damage.  Ideally there would be an internal version.  But also, importantly, a public version aimed at emphasizing that the “commander’s discretion” under the law of war is real and that the laws of war provide a firm safe harbor for commander’s decisions on targeting — and doing so on the basis of evaluating the particular targeting practices in the Libya operation by allied NATO forces.

Below the fold, a little more discussion of the Times article and the crucial role of ground level intelligence in the conduct of drone warfare and targeted killing. Continue Reading…

British Court of Appeal Implicitly Repudiates Goldsmith Memo (Updated)

by Kevin Jon Heller

The Court of Appeal judgment orders the UK government to seek the release of Yunus Rahmatullah, an alleged member of Lashkar-e-Taiba who has been detained at Bagram since 2004, from U.S. custody.  What is particularly interesting about the decision is that it directly — though implicitly — rejects a little-known memo written by Jack Goldsmith while he was at the OLC, in which he argued that “operatives of international terrorist organizations” were not “protected persons” for purposes of Article 49 of the Fourth Geneva Convention, which provides that “[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of motive.”  Here is Scott Horton, who discusses the case in detail at Harpers today:

The facts developed in the Rahmatullah case have clarified the circumstances surrounding one of the notorious Justice Department memoranda issued during the Iraq War. In March 2004, Jack Goldsmith, then head of Justice’s opinion-writing arm, the Office of Legal Counsel, was asked to give an opinion authorizing the removal from Iraq to Afghanistan of a prisoner who was to be rendered to American custody by British military authorities in the Iraqi south. Rahmatullah’s imprisonment was at least one case covered by this memo. The Geneva Conventions unambiguously forbid an occupying power like the United States from removing prisoners from an occupied country except in narrowly defined circumstances designed to ensure prisoners’ own safety. Nevertheless, Goldsmith issued an opinion arguing that they could be removed.

Later on, just as Goldsmith was seeking appointment as a tenured professor at Harvard Law School, a memorandum dated March 19, 2004, surfaced in the press. Several senior faculty members were outraged by it, and mounted an effort to block Goldsmith’s appointment, which was being advanced by the law school’s dean, Elena Kagan (now a Supreme Court Justice). Goldsmith defended himself by arguing that the memo was “never finalized,” a claim that was undermined when the Obama Administration published a finalized memo, signed by Goldsmith and dated March 18, 2004, offering a radically truncated understanding of who fell under the category of “protected persons” in the context of the Iraq War. The finalized memo was textually similar to the March 19 draft. Goldsmith also argued that the memo could not have been used to abuse anyone because “it stated that the suspect’s Geneva Convention protections must travel with him outside of Iraq,” a reference to an ambiguous footnote found at the bottom of the last page of the draft memo.

Unquestionably, the memo did attempt to justify the removal of prisoners from Iraq, notwithstanding the Geneva Conventions’ explicit prohibition of the deportation of prisoners from an occupied country. Was the memo solicited to justify Ramatullah’s removal from Iraq, and to back up U.S. assurances to the British that he would be treated consistently with the Geneva Conventions? That seems likely the case.

[snip]

Speaking for a unanimous Court of Appeal, Lord Neuberger, Britain’s second most senior judge, observed that Rahmatullah had been held at Bagram for seven years, his confinement continuing even after the United States’s military-review authority had concluded that his internment was unnecessary. No charges of any sort had ever been brought against him. Noting that article 49 of the Fourth Geneva Convention forbade transfers of prisoners from an occupied country, the court ruled in favor of the habeas application.

Goldsmith’s memo echoes many of the most problematic memos issued by the OLC during the Bush administration…

Ashley Deeks’ Problematic Defense of the “Unwilling or Unable” Test

by Kevin Jon Heller

Ashley Deeks, a fellow at Columbia and a former member of the Office of the Legal Adviser, has posted an essay on SSRN — forthcoming in the Virginia Journal of International Law — entitled “Unwilling or Unable: Toward an Normative Framework for Extra-Territorial Self-Defense.”  Here is the abstract:

Non-state actors, including terrorist groups, regularly launch attacks against states, often from external bases. When a victim state seeks to respond with force to those attacks, it must decide whether to use force on the territory of another state with which it may not be in conflict. International law traditionally requires the victim state to assess whether the territorial state is “unwilling or unable” to suppress the threat itself. Only if the territorial state is unwilling or unable to do so may the victim state lawfully use force. Yet there has been virtually no discussion, either by states or scholars, of what that test requires. The test‟s lack of content undercuts its legitimacy and suggests that it is not currently imposing effective limits on the use of force by states at a time when trans-national armed violence is pervasive.

This Article provides the first sustained descriptive and normative analysis of the test. Descriptively, it explains how the “unwilling or unable” test arises in international law as part of a state‟s inquiry into whether it is necessary to use force in response to an armed attack. It identifies the test‟s deep roots in neutrality law, while simultaneously illustrating the lack of guidance about what inquiries a victim state must undertake when assessing whether another state is “unwilling or unable” to address a particular threat. Normatively, the Article plumbs two centuries of state practice to propose a core set of substantive and procedural factors that should inform the “unwilling or unable” inquiry. It then applies those factors to a real-world example – Colombia‟s use of force in Ecuador in 2008 against the Revolutionary Armed Forces of Colombia – to explore how the use of these factors would affect the involved states‟ decision-making and the evaluation by other states of the action‟s legality. The Article argues that the use of these factors would improve the quality of state decision-making surrounding the use of force in important substantive and procedural ways.

The essay is a very interesting read, and Deeks should be commended for trying to think systematically about what the “unwilling or unable” test would require in practice.  There is, however, a fundamental problem with the essay: it completely fails to establish its thesis that “[i]nternational law traditionally requires the victim state to assess whether the territorial state is ‘unwilling or unable’ to suppress the threat itself.”  The current state of the legal regime governing extraterritorial attacks against non-state actors is one of the most difficult and controversial areas of international law, requiring a careful analysis of state practice and opinio juris.  Unfortunately, such an analysis is absent from Deeks’ essay.  Instead, Deeks relies on a mistaken understanding of neutrality law, provides little more than a few isolated examples of extraterritorial attacks that have ostensibly been justified under the “unwilling or unable” rubric, and ignores all of the contrary examples.  That is a methodologically unsound approach, and it significantly weakens what is otherwise a very good essay…

Is There a Federal Policy Preventing States from Recognizing the Armenian Genocide?

by Roger Alford

That’s the question that a Ninth Circuit en banc panel heard yesterday in Movesian v. Versicherung AG. There is no statute, treaty or executive order refusing to recognize the Armenian Genocide, but there have been equivocal statements by various Presidents on the subject and failed attempts to adopt congressional resolutions recognizing the Armenian genocide. Is that enough to constitute a federal policy that would preempt a California statute (CCP 354.4), which provides in relevant part:

Notwithstanding any other provision of law, any Armenian Genocide victim, or heir or beneficiary of an Armenian Genocide victim, who resides in this state and has a claim arising out of an insurance policy or policies purchased or in effect in Europe or Asia between 1875 and 1923 from an insurer described in paragraph (2) of subdivision (a), may bring a legal action or may continue a pending legal action to recover on that claim in any court of competent jurisdiction in this state, which court shall be deemed the proper forum for that action until its completion or resolution.

In December 2010, a Ninth Circuit panel concluded that there was no federal policy that preempted the California statute.

The Ninth Circuit en banc oral argument yesterday is a great case to watch for anyone interested in preemption. My friend and former colleague Lee Boyd argued on behalf of Appellees, who are heirs of Armenian genocide victims seeking to collect on the insurance policies.

Congress Authorizes U.S. Offensive CyberAttacks

by Julian Ku

Ah, the 2012 National Defense Authorization Act… has any defense spending bill had so much defense-related legal policy embedded in it?  In addition to all the very important stuff about military detentions, it turns out the NDAA also authorizes the U.S. military to engage in offensive cyber-attacks (h/t Gary Schmitt).

Congress affirms that the Department of Defense has the capability, and upon direction by the President may conduct offensive operations in cyberspace to defend our Nation, allies and interests.

The act further clarifies that such actions should be subject to the

(1) the policy principles and legal regimes that the Department follows for kinetic capabilities, including the law of armed conflict; and (2) the War Powers Resolution.

It is hard to figure out (as Schmitt notes) what the point of this is, since it seems to confirm that the US military has the authority to do what it already has the authority to do (kind of like detaining enemy combatants, actually). I suppose it actually might restrain a more aggressive use of offense cyber-attacks, since it constrains it by limiting it to the “law of armed conflict.”  I am also a bit baffled as to how the War Powers resolution would limit such attacks. 

The larger issue here about the 2012 NDAA is that its controversial provisions do nothing more than confirm (at least in most cases) pre-existing legal authority: e.g. to conduct the war on Al-Qaeda, to detain enemy combatants outside of the civilian system, to try them in military commissions, and to conduct offensive cyber-attacks.   I suppose it is annoying to critics of these policies to see them embedded into statute, but will it have any serious practical difference in the conduct of U.S. government policy? It is hard to see.

Towards a Pluralism of International Law(s)?

by Harlan Cohen

It’s widely recognized that our discussions as international lawyers extend beyond the specific subject matter of international law, at least as traditionally defined. (When I introduce the students in Georgia’s international law colloquium to the types of scholarship they’ll encounter, I describe international law as just one of four or five different subjects international lawyers write about.) And there have been any number of attempts over the years to reframe the legal phenomena we talk about. Nonetheless, reading the past couple of symposia on this blog, I’ve been struck by the continued need to break free of the international law paradigm and develop a more pluralistic understanding of regulation across borders.

There are a number of different ways we might want to expand our traditional understanding of international law. One might be to have a more plural conceptions of sources, recognizing that sources beyond treaty, custom, and general principles, seems to play some role, as for example, I suggested here and here regarding an international common law, and as Dan Bodansky has suggested regarding general discursive principles. Alternatively, one might suggest, as I do here, that we increasingly have regime specific “international laws” with different conceptions of law, lawmakers, sources, and legitimacy.

A third possibility would be that we need to think in terms of plural conceptions of law or plural legal systems. This is the suggestion raised in a couple of the symposium discussions. Ming-Sung Kuo, in “Taming Governance with Legality? Critical Reflections upon Global Administrative Law as Small-c Global Constitutionalism,” raises the question whether Global Administrative Law (GAL) represents the global constitutionalization of public law governance. But where are the “public law” norms in question coming from? Given the disparate nature of the regimes in question, it is hard to imagine that the source is international law. Similar hints of a different concept of law outside of traditional international law emerge from the joint EJILTalk!-ASIL discussion of Marko Milanovic’s book. Vaughan Lowe, in his comments over at EJILTalk!, referenced an article by Lea Brilmayer, in which she argued that human rights treaties are not the state-to-state contracts, but instead state pledges to follow certain accepted norms. The point of Brilmayer’s piece is that many human rights agreements are tough to square with an international law paradigm in which states bargain for reciprocal benefit that they then enforce against one another.

Given challenges such as these, do we need to rethink international law’s monopoly on global regulation? A common reaction to these phenomena has been to shoehorn them into the prevailing international law paradigm, either by trying to draw some chain between these rules and state consent or by expanding international law doctrine to incorporate different actors and processes. Brilmayer, for example, seems to frame her pledges as merely a different form of international law. But another way to think about these pledges is as a different system of law entirely, one that runs not between states, but between states (or other public authorities) and the individuals they govern. Rather than a form of international law, many human rights rules may instead form part of a proposed global public or constitutional law – rules asserted, codified, and eventually invoked by individuals against states authority. (This is not meant to suggest that such law is authoritative or legitimate – a separate question – but merely to suggest that this is the form of the rules being invoked.) Some GAL rules may fit into such a global public law system as well.

(Recognizing that there are multiple legal systems in play is complicated by the fact that rules from different systems may be used to reinforce one another. Human rights are often found in treaties. This might suggest to some that human rights are a form of state-to-state international law. A better description though might be that human rights are mostly a form of global public law that are incorporated into international law agreements in an effort give them force in international law as well, adding state responsibility to the enforcement mix. In this sense, human rights treaties would be analogous to domestic law statutes that incorporate treaties, grafting rules from one legal system into another in an effort to exploit additional enforcement possibilities.)

Viewing global regulation as plural legal space, in which multiple legal systems interact, would actually hearken back to earlier conceptions of international law that identified multiple ultimate rule sources. Taking Vattel as an example (only because his work is well-known to many readers of this blog), we would find in his conceptualization rules emerging directly from natural law operating primarily on the conscience of rulers (the necessary law of nations), interstate rules derived from right reason and supported by natural law (the voluntary law of nations), and conventional or customary rules derived solely from states-to-state agreement, explicit or implicit. (Other scholars would have different, but equally diverse lists.) But even these rules were not alone. They were joined in the transnational regulatory space by privately created Lex Mercatoria and canon law.

In a similar, but updated, vein, we might try to identify different legal systems among today’s cross-boundary regulation. Along with international law (law between states), we might identify a type of global public law (law invoked by people against official authority), as well as a modernized form of jus gentium – standards that aren’t so much imposed as proposed, best practices around which many states and actors converge. There may be other forms as well.

And recognizing that international law may be just one type of cross-border or supra-national regulation might clarify a range of questions. The puzzle of why states would bargain with each other for human rights treaties or enforce their rules recedes into the background. Questions about the relative authority and effectiveness of such agreements can instead focus on the individuals who promote, draft, and seek to apply them. (At least some) soft law standards need no longer be seen as deficient international law. Instead that might be seen as part of a new jus gentium in which convergence rather than compliance is the goal. Most of all, it takes the wobbly doctrinal lid off of long bubbling questions about how these rules should interface. How global public law and international law, with their divergent sources of authority and differing values, should relate to one another would now take central stage.

This will be my last guest post for now. Thank you again to the entire Opinio Juris team for allowing me to share their space for a bit. And I look forward to seeing or meeting many of you in person whether at the JILSA conference at the University of Georgia or the ASIL Annual Meeting in DC.

Evaluating Durban

by Dan Bodansky

Was the Durban climate conference a success or failure?  As always, the answer depends on one’s frame of reference.

As compared to the expectations going in, the outcome was more than I think most people thought possible.  In a pre-Durban paper entitled “W[h]ither the Kyoto Protocol,” I identified three scenarios: (1) business-as-usual, with modest progress in developing the Copenhagen/Cancun framework and no political breakthroughs; (2) agreement to a “political” (not legally-binding) second commitment period under the Kyoto Protocol; and (3) agreement to a Kyoto Protocol amendment establishing a second commitment period, combined with a mandate for a new negotiating process to develop a legally-binding agreement addressing the emissions of the other major economies.  Many thought that (1) was the default option, (2) represented the best-case scenario, and (3) was politically unrealistic.  But the Durban outcome is in fact closest to (3):

  • It wrapped up much of the remaining work to elaborate the Copenhagen/Cancun process, by adopting the governing instrument of the new Green Climate Fund and a transparency rules for both developed and developing countries pledges.
  • It agreed to extend the Kyoto Protocol by another 5-8 years.  Although the emissions targets for Kyoto’s second commitment period still need to be worked out, and the formal amendment won’t be adopted until next year, the basic political decision to extend the Protocol was made in Durban.
  • It agreed to launch a new negotiating process to develop a “protocol, another legal instrument, or agreed outcome with legal force,” addressing the post-2020 period  and “applicable to all Parties.”

The Durban outcome seemed unlikely because there was little indication that China and India would agree to negotiate a new agreement to limit their emissions.  Without agreement by China and India, the United States had said that it would not agree to a new round of negotiations.  And without agreement by the United States, China, and India, the European Union would not agree to a second commitment period under the Kyoto Protocol.  What allowed the Durban outcome was a careful compromise that gave BASIC countries, on one side, a 2020 start date for the new agreement and some ambiguity about its legal character (about which more below), and gave the EU, small island states and least-developed states, on the other side, early start and end dates for the negotiations (the negotiations will begin next year and conclude in 2015)  and language that the outcome of the new negotiations will have “legal force.”  Interestingly, the United States apparently played something of an intermediary role, since it had some flexibility about the issues of both dates and legal form.  In the end game of Durban, India was unwilling to accept a mandate to negotiate  a “protocol or another legal instrument,” and preferred the formulation “legal outcome.”  The United States suggested “outcome with legal force,” India added “agreed,” and the EU said ok.  Thus the deal was done.

Of course, the Durban outcomes are largely procedural.  So if one’s frame of reference is what needs to be done substantively to limit temperature change to no more than 1.5 or 2 degrees C, then the Durban outcome falls far short.  According to most scenarios, global emissions need to peak by 2015 in order to have a reasonable chance of limiting global warming to no more than 2 degrees.  Instead, emissions rose by 6% in 2010, the largest amount on record.  Even if the Durban Platform negotiations are successful, a new agreement wouldn’t kick in until 2020.  Although the Durban decision calls on countries to consider raising the ambition of their existing pledges for the 2012-2020 period, these pledges are non-binding under the Copenhagen/Cancun framework.  Hence the unhappiness of small island and least-developing states with a 2020 start date for a new agreement.

The Durban Platform is also pretty thin gruel as a negotiating mandate.  In terms of its actual language, it is arguably weaker than the 1990 UN General Assembly resolution that initiated the UN climate change negotiations and led to the development of the UN Framework Convention on Climate Change.  The 1990 UN General Assembly resolution called clearly  for the negotiation of a “convention” (albeit a “framework” agreement) “containing appropriate commitments.”  In contrast, the Durban meeting was unable to agree on a mandate to negotiate a legal agreement and contains no language about commitments.   The Durban platform could be satisfied by an “outcome with legal force” — a formulation that as far as I am aware does not have any precedent in international law.  Arguably, “legal force” means the same thing as “legally-binding,” and the addition of “with legal force” to “agreed outcome” (the Bali Action Plan language) means that the outcome is something more than what Bali contemplated (which included COP decisions).  But the inability to reach agreement on “legally-binding” suggests that at least some parties thought “legal force” might mean something less.

Moreover, the Durban Platform does not specify anything about the content of the new “protocol, another legal instrument or legal outcome with legal force.”  The assumption is that it will set forth emissions limitation commitments, but the Durban decision does not say so explicitly.  So, in theory, the Durban Platform negotiations could be satisfied by another framework-style agreement.  In Durban, the issue was often framed as whether the BASIC countries would agree to negotiate a legally-binding agreement for the post-2020 period.  But, of course, the BASIC countries are already parties to two climate change agreements, the UNFCCC and the Kyoto Protocol, one of which (the UNFCCC) already imposes general mitigation obligations on all parties, including the BASICs.  So the issue is not whether China, India and the  other BASIC countries are willing to become party to a legally-binding agreement, even one that imposes mitigation commitments on them.  Rather, the question is whether the BASIC countries are willing to accept specific (quantitative?) obligations to limit their emissions.

The other gorilla in the room is stringency.  Specific emission limitation commitments by all of the world’s major economic would be a big step forward.  But whether it would be enough to prevent dangerous climate change would depend on the stringency of the commitments.  Durban made little if any progress in that regard.  The Durban Platform contains preambular language expressing “grave concern” about “the significant gap between the aggregate effect of Parties’ mitigation pledges … and aggregate emissions pathways consistent with having a likely chance of holding the increase in global average temperature below 2° C or 1.5° C above pre-industrial levels.”  It calls on the new negotiating group to “raise the level of ambition” and launches a workplan to “enhanc[e] mitigation ambition” and to “close the ambition gap.”  But efforts in Durban were completely unsuccessful to include language about when global emissions need to peak or about a long-range global emissions reduction goal (such as a 50% reduction by 2050).    This suggests that even if the Durban negotiations lead to the adoption of a new legal agreement, it could fall woefully short of what is needed.

So the Durban Conference should be seen as only one step along a long path.  What was remarkable about the meeting was that a coalition of small island states, least-developed countries and the European Union was successful in pushing through an outcome about which the United States, China and India were, at best, lukewarm.  Whether the political pressure that led to Durban will also be sufficient to produce a strong agreement will determine whether Durban is seen by history as a significant breakthrough or a pyrrhic victory.

Supreme Court Takes Review of Arizona’s SB 1070 (But Why?)

by Peter Spiro

The Supreme Court announced a grant this morning in the SB 1070 case.

I don’t know why the Court took the case. It could easily have ducked. There are other cases working their way through the pipeline from copycat states (Georgia, Alabama, South Carolina). The Court could have waited for further “percolation” of the issue in the lower courts and the prospect of a circuit split. It already has one political hot-button issue on its plate; why load up with another?  No faction on the Court appears to have an immigration-related agenda (though obviously the right side has a federalism-related one).

On the other hand, the Court probably felt warmed up on the issue after the Whiting decision last term, in which it upheld a narrower AZ law relating to e-Verify and employer sanctions.  The Court would probably have had to get to this at some point, so why not establish some certainty now.  And a majority is probably not on board with the Ninth Circuit’s decision here, which enjoined all key parts of the law.

This will be a big decision at the intersection of immigration and federalism, probably the biggest since its 1942 decision in Hines v. Davidowitz. It could also have important implications for foreign relations federalism.  My guess is that the Court is going to split the difference here.  I think it’ll uphold a key provision requiring law enforcement to undertake immigration status determinations, but it will nullify another which in effect makes undocumented status a crime under state law (it isn’t under federal).  But it will raise the overall bar for preemption, moving away from Hines’ hair-trigger standard, even in such sensitive areas as immigration an foreign affairs.

Meanwhile, this will probably short-circuit political efforts on the ground to scale the law back, at least pending a decision.  That’s too bad.  These laws might have gone away on their own.  For the moment, the Court’s intervention will make that less likely.

2012 ASIL Annual Meeting: Confronting Complexity

by Harlan Cohen

As Peggy mentioned in her introduction, I’ve had the honor of working with two extraordinary co-chairs, Chiara Giorgetti and Cymie Payne, and an incomparable group of Program Committee members, including OJ’s own Chris Borgen, in planning the 106th Annual Meeting of the American Society of International Law. This year’s theme is “Confronting Complexity.” The theme statement can be found here.

In a nutshell, as we looked out at various issues that seemed to be defining the moment in international law, whether the Arab Spring, the global financial crisis, natural disasters, or drone warfare, we kept coming back to the sheer complexity of these issues, both in terms of the range of laws and regimes they implicate and in terms of the masses of information that need to be processed to figure out how to deal with them. More and more, it seems that the real challenge is figuring out how to get a handle on and manage this increasing complexity. The questions we wanted to pose for the Annual Meeting are not only how international law might help do this, but also whether international law is always best the tool to do so. We hope to explore when and how international law can be best be mobilized and when and how it might either partner with or even cede the field to others

We have worked hard to work these themes into the agenda for the meeting, and although the schedule is still coming together, we are excited about what we already have lined up. There are far too many interesting panels to list here – I recommend taking a look at a longer list of highlights here – but to give you at least flavor of what we’ve cooked up:

  • We have a number of panels focused on particularly complex problems: A roundtable on “International Humanitarian Law and New Technology,” panels on “What Makes a State,” “International Energy Governance,“ “An Emerging International Law of Migration” (organized by OJ’s own Peter Spiro), “Financial Crisis in the Eurozone,” “Water: Security Concern, Commodity or Human Right?” (featuring, among others, Catarina de Albuquerque, UN Special Rapporteur on the human right to safe drinking water and sanitation), and “Transitional Justice and the Arab Spring.”
  • Other panels focus on attempts to manage or cut through the complexity including panels on “Indicators in International Law,” “Fact-Finding in Interstate Disputes” (featuring Rosalyn Higgins, Bruno Simma, Sean Murphy, Lucy Reed, and Lisa Grosh), and “Global Environmental Protection and Transnational Conservation Contracts.” A closing plenary will feature a conversation with UN Special Rapporteur James Anaya and Inter-American Commission Rapporteur Dinah Shelton on their work promoting the rights of indigenous peoples.
  • Still other panels challenge international law’s role in wrestling with complex problems, for example, “Opting Against International Law in International Financial Regulation,” or challenge the assumption that complexity is always a problem to resolve. One panel, “International Law and Its Discontents: The Normative Implications, and Strategic Opportunities, of Complexity,” suggests that legal complexity may open up opportunities for previously marginalized voices.

In keeping with the theme we have also worked hard to bring in voices from outside the law. The roundtable on “International Humanitarian Law and New Technology,” for example, includes Brookings’ P.W. Singer and University of Pennsylvania philosopher Claire Finkelstein. A panel on “Preparation of Cases before International Courts and Tribunals,” includes a geographer (and frequent expert for ICJ maritime boundary disputes) Martin Pratt.

Additionally, we are launching a new feature at the Annual Meeting: ASIL – IDEAS:  Ideas, Direction, Engagement, Action, Solutions. These will be shorter talks, about 20 minutes long, featuring innovative ideas international lawyers will want to think about from people you might not otherwise hear. Among others, we hope to bring in people from other fields – science, technology, entrepreneurship, philanthropy, etc. – who might broaden our understandings of what’s possible. We are already working on some exciting speakers for the Annual Meeting (stay tuned), and if successful, we hope this will become an ongoing ASIL feature. We welcome your thoughts on good candidates.

The Annual Meeting will be held March 28-31, 2012 at the Fairmont Hotel in Washington, DC. Registration is here. We hope you’re getting excited for it. We certainly are!

The negotiations that would not die

by Dan Bodansky

In the early morning hours of Sunday morning (after two all-night negotiating sessions), climate negotiators at the Durban Conference reached a deal that some are already calling historic.  The decisions call for a new commitment period under the Kyoto Protocol together with the launching of a new round of negotiation (with the catchy title, “Durban Platform for Enhanced Action“)  aimed at reaching “a protocol, another legal instrument or an agreed outcome with legal force under the UN Framework Convention on Climate Change applicable to all Parties,” to be concluded no later than 2015.   Although the Durban Platform does not specify what types of commitments will be contained in the new instrument, the clear expectation is that it will include emission limitation commitments by those not covered by the Kyoto Protocol’s emission targets, including the United States, China and India.  The new protocol/instrument/outcome would thus expand the scope of the climate regime from the 15% of global emissions currently addressed through the Kyoto Protocol to all of the world’s major economies.

From the beginning, the main issue at Durban was whether the United States and the BASIC countries (Brazil, South Africa, India and China) would agree to a negotiating mandate sufficiently strong to enable the European Union to agree to an extension of the Kyoto Protocol.  Important issues included:

  • Legal form — Some countries were reportedly unwilling to accept a mandate to negotiate a “legally-binding agreement.”  (India was most clearly in this camp; the positions of the United States and China were less clear.)  Early texts proposed negotiating a “legal framework” or a “legal outcome,” but the European Union, small island states and least developed countries  (LDCs) saw these formulations as insufficiently strong, since they arguably might be satisfied by COP decisions.  The Durban Platform finessed this question with the formulation, “protocol, another legal instrument or agreed outcome with legal force.”  (The phrases “protocol” and “another legal instrument” are the terms used in the Berlin Mandate, which launched the Kyoto Protocol negotiations,” and the term “agreed outcome” is from the Bali Plan of Action, but now modified by the phrase “with legal force.”)
  • Time frame for the negotiations —  China reportedly wanted the negotiations to begin in 2016, after a review under the Cancun Agreements had been completed.  The European Union wanted the negotiations to begin immediately and to be concluded by 2015.  The Durban Platform follows the “EU roadmap” on this issue.
  • Time frame for the new instrument — The BASIC countries were reportedly willing to become part of a new agreement only starting in 2020 (and the United States was unwilling to accept an earlier start date for itself than for the BASIC countries), while the small island states and LDCs wanted the new agreement to be applicable as soon as possible.  The Durban Platform specifies that the instrument will “come into effect and be implemented” from 2020.
  • Negotiating forum — Rather than conduct the negotiations in the existing Ad Hoc Working Group on Long-term Collective Action (AWG-LCA) (created in 2007 by the Bali Roadmap), the Durban Platform establishes a new Ad Hoc Working Group on the Durban Platform on Enhanced Action.

As usual, on the issues about which there was no agreement (legal form and time frame), the lawyers in the negotiations played a crucial role in finding formulations that triangulated among the positions of the differing groups.

On the issue of differentiation, the Durban Platform represents a complete departure from the Berlin Mandate, which launched the Kyoto Protocol negotiations.  Not only does the Durban Platform affirmatively state that the new agreement will be “applicable to all” (in contrast to the Berlin Mandate, which explicitly excluded any new commitments for developing countries); in addition, the Durban Platform does not include any mention of the principle of “common but differentiated responsibilities and respective capabilities,” the principle of equity, the historical responsibility of developed countries, or the need for developed countries to take the lead in reducing emissions — the formulations previously used by developing countries to avoid taking emission limitation commitments.  Whether this represents a real change of heart or a tactical shift remains to be seen.  But nonetheless it suggests a very different framing of the new negotiations than the Kyoto Protocol.

In parallel with the Durban Platform decision, the Kyoto Protocol parties adopted a decision that sets the stage for the adoption next year of an amendment establishing a second commitment period under the Protocol, running from either 2013-2017 or 2013-2020.  The countries that will have emissions targets (a list that does not include Canada, Japan and Russia, which had previously announced that they would not participate in a KP second commitment period) are supposed to submit their “quantified emissions limitation and reduction objections” (i.e., their emissions targets) in the coming year, “with a view” to adopting an amendment at next year’s meeting.  The Kyoto Protocol outcomes also include a proposed amendment to add another gas (NF3) to the basket of gases addressed by Kyoto, as well as decisions dealing with land-use and forestry accounting and the Kyoto market mechanisms.  These decisions address the technical issues relating to a second commitment period, leaving only the emissions targets and time period for next year’s meeting.  To avoid any gap between the first and second commitment periods, the new commitment period will cover emissions from January 1, 2013 on, even though ratification and entry into force of the amendment will occur subsequently.

Finally, the Durban meeting tied up the two major “loose ends” from the Copenhagen/Cancun process.  First, it adopted the Governing Instrument for the new Green Climate Fund (GCF), which aims to mobilize $100 billion by 2020 for mitigation and adaptation.  The Governing Instrument establishes a Board consisting of 24 members, equally split between developed and developing countries, and designates the World Bank as the interim trustee of the fund for a period of three years.  A food fight is already emerging concerning the location of the new GCF secretariat, with many countries expressing interest.  Second, the Durban meeting adopted rules for international assessment and review (IAR) of developed country actions and international consultation and analysis (ICA) of developing country actions.  These transparency rules for developed and developing countries differ in their particulars, but both provide for review/analysis of national reports by technical experts, together with a more political  assessment/exchange of views by the parties.

Although the effectiveness of the UN climate change process in reducing emissions is subject to debate, the Durban outcome shows that the political momentum behind the process is not spent — at least to the extent that no one wants to be responsible for derailing it.

Nobel Laureates “Unite in Sisterhood to Turn our Tears into Triumph”

by Roger Alford

Nobel Peace Prize Laureates Ellen Johnson Sirleaf, Leymah Gbowee, and Tawakkol Karman delivered their Nobel Lectures today in Oslo.

It was a great day of celebration for the cause of gender equality and democracy. You should read all three lectures in their entirety to give you the full picture of what transpired. The common theme was the power of women to transform the world in the face of injustice and oppression.

The two Liberian Laureates spoke triumphantly of their victory against injustice in Liberia, while the Yemeni Laureate–the youngest Nobel Peace Laureate in history–spoke confidently of a new emerging Arab spring.

After watching the festivities live, I am confident that all three women will do great honor to the Nobel Peace Prize.

Here’s a few choice excerpts from the Nobel Lectures:

Tawakkol Karman:

Peace within one country is no less important than peace between countries. War is not just a conflict between states. There is another type of war, which is far more bitter, that is the war of despotic leaders who oppress their own people. It is a war of those to whom people have entrusted their lives and destinies, but who have betrayed that trust. It is a war of those to whom people have entrusted their security, but who directed their weapons against their own people. It is the war which today people face in the Arab States.

At this moment, as I speak to you here, young Arab people, both women and men, march in peaceful demonstrations demanding freedom and dignity from their rulers. They go forward on this noble path armed not with weapons, but with faith in their right to freedom and dignity. They march in a dramatic scene which embodies the most beautiful of the human spirit of sacrifice and the aspiration to freedom and life, against the ugliest forms of selfishness, injustice and the desire to hold on to power and wealth.

Peace does not mean just to stop wars, but also to stop oppression and injustice. In our Arab region, there are brutal wars between governments and peoples. Human conscience cannot be at peace while it sees these young Arab people, who are in the age of blossoming, being harvested by the machine of death which is unleashed against them by the tyrants. … [O]ur oppressed people have revolted declaring the emergence of a new dawn, in which the sovereignty of the people, and their invincible will, will prevail. The people have decided to break free and walk in the footsteps of civilized free people of the world.

Ellen Johnson Sirleaf:

There is no doubt that the madness that wrought untold destruction in recent years in the Democratic Republic of Congo, in Rwanda, in Sierra Leone, in Sudan, in Somalia, in the former Yugoslavia, and in my own Liberia, found its expression in unprecedented levels of cruelty directed against women.

Although international tribunals have correctly declared that rape, used as a weapon of war, is a crime against humanity, rapes in times of lawlessness continue unabated. The number of our sisters and daughters of all ages brutally defiled over the past two decades staggers the imagination, and the number of lives devastated by such evil defies comprehension.

Through the mutilation of our bodies and the destruction of our ambitions, women and girls have disproportionately paid the price of domestic and international armed conflict. We have paid in the currencies of blood, of tears, and of dignity….

Yet, there is occasion for optimism and hope. There are good signs of progress and change. Around the world, slowly, international law and an awareness of human rights are illuminating dark corners, in schools, in courts, in the marketplace. The windows of closed chambers where men and women have been unspeakably abused are being opened, and the light is coming in. Democracies, even if tentatively, are taking root in lands unaccustomed to freedom.

Leymah Gbowee:

This prize … has come at a time when in many societies where women used to be the silent victims and objects of men’s powers, women are throwing down the walls of repressive traditions with the invincible power of non-violence. Women are using their broken bodies from hunger, poverty, desperation and destitution to stare down the barrel of the gun. This prize has come at a time when ordinary mothers are no longer begging for peace, but demanding peace, justice, equality and inclusion in political decision-making.

I must be quick to add that this prize is not just in recognition of the triumph of women. It is a triumph of humanity. To recognize and honor women, the other half of humanity, is to achieve universal wholeness and balance… “Rape and abuse is the result of larger problem, and that problem is the absence of women in the decision making space.” If women were part of decision-making in most societies, there would be less exclusive policies and laws that are blind to abuses women endure….

We must continue to unite in sisterhood to turn our tears into triumph, our despair into determination and our fear into fortitude. There is no time to rest until our world achieves wholeness and balance, where all men and women are considered equal and free.

Codifying Custom

by Harlan Cohen

Reading Dan Bodansky’s accounts of the difficulties inherent in reaching a new climate agreement, I’m reminded of a terrific new paper forthcoming in Penn Law Review, “Codifying Custom,” by my colleague, Tim Meyer.  Tim demonstrates that the types of power plays that make negotiation of new rules so difficult are equally present in attempts to “codify” existing rules.  The codification of custom in treaties is generally seen as a positive development in international law, giving the existing rules additional certainty, clarity, and legitimacy.  What Tim shows is that, in fact, codification can often be an effort by powerful states (in this case, ones who can control the treaty-making process) to capture rules for their own benefit.  Here’s the abstract:

Codifying decentralized forms of law, such as the common law and customary law, has been a cornerstone of the positivist turn in legal theory since at least the nineteenth century. Commentators laud codification’s purported virtues, including systematizing, centralizing, and clarifying the law. These attributes are thought to increase the general welfare of those subject to legal rules, and therefore to justify and explain codification. The codification literature, however, overlooks codification’s distributive consequences. In so doing, the literature misses the primary motive for codification: to define legal rules in a way that advantages individual codifying institutions, regardless of how codification affects the general welfare.

This Article fills this gap in the literature by examining three rationales for why states codify customary international law: 1) a desire to clarify the substantive content of customary law in order to promote cooperation (the Clarification Thesis); 2) a desire to enhance compliance through mechanisms such as monitoring, enforcement, and dispute-resolution provisions (the Compliance Thesis); and 3) a desire to define the content of customary rules for a state’s individual benefit (the Capture Thesis). While codification’s proponents conceive the enterprise in terms of the Clarification and Compliance Theses, I argue that states more frequently use codification to capture customary international legal rules to benefit themselves at the expense of the general welfare. As states with divergent views on how to interpret a customary rule pursue conflicting codification efforts, they entrench schisms in the law along regional or ideological lines, thereby delegitimizing customary rules and increasing fragmentation. Thus, far from being an unqualified boon to benevolent legal ordering, codification can replicate, magnify, or alter power dynamics present in forming bare customary law. Indeed, the fragmentation of customary law that can result from codification actually prevents a unified understanding of customary law from emerging — the exact opposite of codification’s ostensible purpose. This Article uses the Capture Thesis to explain important developments in customary international law, including the outlawing of the slave trade in the nineteenth century, the rise of bilateral investment treaties, and the inability to reach agreement on a multilateral investment treaty.

The paper is a great example of what can be accomplished when a deep understanding of traditional international law and legal methods is combined with methods from international relations and economics.  I recommend it highly!

Author Shana Tabak Responds to Comments from Ruti Teitel & Vasuki Nesiah

by NYU Journal of International Law and Politics

[Shana Tabak is a Visiting Associate Professor of Clinical Law at The George Washington University Law School, where she is also a Friedman Fellow with the International Human Rights Clinic. She is the author of False Dichotomies of Transitional Justice: Gender, Conflict and Combatants in Colombia, 44 N.Y.U. J. Int’l L. & Pol. 103 (2011).]

I’m very grateful to Professors Ruti Teitel & Vasuki Nesiah for taking the time to respond to my article, False Dichotomies of Transitional Justice. They have both offered generous comments and insights, and I’d like to offer a few brief words in response.

Professor Teitel highlights that questioning the role that gender ought to play in transitional justice may, in and of itself, generate alternative perspectives on conflict. I couldn’t agree more with this assertion; one of the central goals of my article is that scholars and practitioners ask not only the “gender” question, but also ask, (with thanks to the scholarship of Mari Matsuda) the “other” question, thereby considering what other normative structures may be intertwined with gender as a society seeks to re-define itself as it emerges from conflict.

In referencing Catharine MacKinnon’s recommendation that the law of war might provide leverage with which to surpass common gendered dichotomies within domestic attempts to implement transitional justice, Teitel provides an important reminder of the ways in which legal systems interact with and build upon one another. Due to its explicit references to gendered violence, the international law of war “humanizes” women from a legal perspective, and this simple recognition can itself transform traditional approaches that transitional justice mechanisms may, unwittingly, rely upon as I discuss throughout this article. Certainly this recognition is one that must be sought within a transitional justice scheme; it also demonstrates the ways in which progress regarding the role of gender in transitional justice may be incremental and context-specific. In the synthesis of gendered approaches to transitional justice that I outline in my article, I attempt not to undermine the importance of the revolutionary yet basic recognition that women are “human.” Instead, I demonstrate that this may be the starting point for transitional justice, and that mechanisms must build upon these advances and aspire to do more. They must not rely exclusively on mechanisms of the law of war, which may reinforce women’s positioning solely as victims, may relegate men to the position of perpetrators, and may neither fully encompass the reality of either nor challenge preconceived norms regarding gender.

In her post, Professor Nesiah challenges the manner by which gender-oriented scholarship best offers policy proscriptions, and expresses concern that specific revisions to transitional justice or DDR may undermine critical theory’s broader and more ambitious project of restructuring the normative role of gender in society.

In offering a gender-oriented critique, my article’s use of critical perspective, critical though it may be, is rooted in the notion that transitional justice is not merely a theoretical approach, but must seek to provide commentary on and proscribe remedies for the real-world issues it identifies. I offer critique that attempts to encompass the theoretical and the tangible, and recognizes the ways in which a gender critique complicates how the work of transitional justice is done. Despite my article’s rigorous analytical examination of three false dichotomies within transitional justice, I aim for this article to also provide guidance for the design and implementation of transitional justice mechanisms.

Therefore, I don’t share Nesiah’s claim that a gender-oriented critique must be poised with fangs ready to attack any tangible revisions, large or small, to transitional justice mechanisms. In adopting a gender-oriented approach, I offer some critique to previous approaches of transitional justice, but I also express a great debt to those scholars who developed means of seeking human rights accountability for all genders, such as the legal scholars who, after centuries of it being a reality of wartime, finally defined rape as a crime of war.

To be clear, however, my article offers more than simple policy prescriptions or deference to re-legitimization of the state, arguing that it is crucial that transitional justice must “actively resist simply re-cementing societal relationships that laid the groundwork for conflict in the first place.” I agree with Nesiah’s claim that a gender-oriented critique calls attention to the normalization of structural violence as well as structural economic inequities. I emphasize these topics through exposure of traditional transitional justice mechanisms’ reliance on the public / private dichotomy, which may highlight violations of civil and political rights, while neglecting economic and social rights violations which may be more acutely felt by both male and female victims.

I’ve truly enjoyed the opportunity to have a virtual discussion with these two scholars whose work has so influenced my own thinking on this topic, and I look forward to future comments and conversations.

Ruti Teitel Responds to Shana Tabak

by NYU Journal of International Law and Politics

[Ruti G. Teitel is the Ernst C. Stiefel Professor of Comparative Law at New York Law School.]

I am happy to join the conversation on Shana Tabak’s “False dichotomies of Transitional Justice Gender, Conflict and Combatants in Colombia,” forthcoming in the next issue of the NYU Journal of International Law & Politics. Tabak’s article is a thoughtful meditation on the difficult issues surrounding gender conflict and justice with specific reference to the ongoing situation in Columbia. Her article is an example of recent scholarship e.g., On the Frontlines (OUP 2011) that draws attention to the place of gender in considerations of transitional justice in conflict and
post-conflict.

The contribution of the article is in its critical challenge to any simplistic approach to the question of what role gender ought to play. Indeed as Tabak notes the scholarship in this area all too often suffers from false dichotomies of war/peace: conflict/postconflict; male/ female; ordinary /transitional. Indeed, one might add the core dichotomies that relate to the problem of reconciling law and change. Prior to publishing Transitional Justice (2000) I coined the term in order to evoke the dual nature of the challenge of promoting rule of law and justice in political transition—both forward-looking and backward-looking at the same time.

But once these false dichotomies are conceded, where does gender belong in the project of transitional justice? The question in Tabak’s words is “What might a genuinely feminist version of transitional justice look like?” She anchors her critique on the specifics of the Colombian conflict and the significant participation of women in that conflict as combatants. Women find themselves on all sides of conflict—gender cuts across the victim-perpetrator divide. This crucial reality in Tabak’s view was not sufficiently recognized in Colombia’s Justice and Peace Law providing for demobilization but which lacked gender specificity and therefore failed to adequately account for and support former female guerrilla forces in the post conflict period. Instead, Tabak argues for a continuum of possibilities including more “holistic” solutions that may well venture beyond the confines of the law and its modalities, to get beyond the categories of victim-perpetrator, and consider impact more broadly on the community.

Still, one cannot help but wonder if the importance of this question of what role gender ought to play in situations of conflict and post/conflict couldn’t itself generate alternative perspectives on what counts in this context. Indeed, noted feminist Catherine Mackinnon argues in recent work that women ought to turn to the law of war, and related international legal space that might enable getting beyond the usual dichotomies that plague “domestic” law. For, after all, it is the law of war that explicitly addresses gendered violence (consider the International Criminal Court’s Rome Statute criminalizing sexual violence as both a “war crime” and a “crime against humanity.”). Beyond, that the law of war contemplates enforcement mechanisms, as well as for recognition of change in status and treatment in violent conflict’s aftermath. Here, one might think of East Timor where post conflict status contemplated a move from combatants to “veterans” thus laying the basis for shared status and recognition with men as well as offering a basis for pensions and other added support. As I argue in my new book Humanity’s Law (OUP 2011), the turn to international humanitarian law may well reframe the ordinary gender-related dichotomies so to draw attention to women’s humanity under the law—such a move rendering them human juridically speaking and in this way the international legal regimes and fora though they may seem to involve distant conflicts may also lay the basis for changed status and recognition that might have spillover transformative effects at home.

From False Dichotomies to a Real One: A Response to Shana Tabak by Vasuki Nesiah

by NYU Journal of International Law and Politics

[Vasuki Nesiah is an Associate Professor of Practice at NYU’s Gallatin School of Individualized Study.]

From manufacturing petrol bombs in their homes in Northern Ireland to planning assassinations in Colombia, female combatants confound received scripts of gender and war. Shana Tabak’s article challenges the analytical frameworks deployed by orthodox approaches to transitional justice, lays out an alternative framework that she situates in critical ‘gender oriented’ scholarship and then draws from this framework to enter the world of female combatants. For Tabak this alternative framework highlights problems with orthodox transitional justice approaches to female combatants but also suggests policy directions for how we may reform transitional justice to better serve these combatants.

Significantly the challenge to orthodox approaches is in fact a challenge to two strands – both a gender-neutral strand, and what we may describe as a “traditional” feminist strand invested in female victimhood. I found Tabak most helpful in exposing the arenas of convergence between these two strands. While traditional feminism often sees itself as opposing the ‘gender neutral’ approach, Tabak reveals that the gender neutral strand and the traditional feminist strand share background assumptions regarding the dichotomies between conflict and non-conflict, victims and perpetrators, and even public and private. Equally, Tabak was helpful in systematically outlining key insights of critically oriented feminist scholarship – what she identifies as ‘gender-oriented approach to transitional justice.’

I part company with Tabak when she moves from this mapping of debates to an analysis of female combatants in Colombia. It is indeed the case that these issues challenge orthodox transitional justice. However, the implications of critical feminism may not fall neatly into the policy prescriptions that Tabak highlights. Tabak suggests that if we recognize that gender neutral DDR programs and interventions premised on women as victims do not address the issues of female combatants then we are unlikely to encourage demobilization, empower demobilized women combatants in their civilian lives or engender civic trust. Rather, she suggests that transitional justice interventions have to become more ‘holistic’ and multifaceted through strategies such as avoiding gender stereotyping in “social services” and making proactive efforts to ensure that DDR initiatives (from demobilization packages to job training programs) address opportunities for women. In other words, let’s be more context sensitive, and indeed, gender sensitive, to ensure meaningful inclusion.

On the one hand, no one can argue with tailoring DDR packages to the specificities of the context or more proactive and nuanced approaches to gender inclusion. On the other, to see the specific revisions to DDR programs that she makes as the end result of critical ‘gender oriented’ scholarship would be to defang the critique and domesticate the extent to which it challenges orthodox transitional justice. When critical traditions have taken on the “false dichotomies of transitional justice,” they have also highlighted that what is at stake is the extent to which extraordinary violence and violence on the body obscures and normalizes ordinary structural violence. Thus the response cannot be to once again foreground the battlefield in focusing on female combatants as combatants; rather (as Tabak understands) we need to also look at the structural issues that engendered the conflict. This may not be then merely about ameliorative measures for gender sensitive employment opportunities or inclusion of women’s clothing in DDR packages but a more radical push to restructure economic arrangements. In this brief response, I do not have time to highlight multiple examples of the internal tension that flows through the second part of Tabak’s paper but again and again one sees that the need to challenge the enabling conditions of conflict is clearly recognized in her analytical rethinking of orthodox transitional justice but it gets neutered in her discussion of the implications of this rethinking. There she defers to efforts that “re-legitimize the state” and “build civic trust”. There is, I would argue, deep political stakes here that cannot be reconciled with invocations of a “holistic” transitional justice framework; coating state policy initiatives with a layer of gender sensitivity is not on a seamless continuum with challenging social relationships. This is not to trivialize Tabak’s proposals but to highlight a disjuncture between the radical potential in the analytical framework she endorses and the ameliorative, small-bore policy prescriptions she advances. This is a real dichotomy.

False Dichotomies of Transitional Justice: Gender, Conflict and Combatants in Colombia

by NYU Journal of International Law and Politics

[Shana Tabak is a Visiting Associate Professor of Clinical Law at The George Washington University Law School, where she is also a Friedman Fellow with the International Human Rights Clinic.]

Although the field of transitional justice has made great strides in addressing harms perpetrated against women in the aftermath of conflict, this paper argues that transitional justice mechanisms mistakenly rely on three false dichotomies with regard to the role of gender in conflict. In order for transitional justice mechanisms to achieve success in reordering society, promoting justice, and overcoming past trauma and human rights abuse, it is crucial that these assumptions be questioned, both by scholars and practitioners. Taking as a case study Colombia’s decades-long armed conflict, in which one-fourth of combatants are women, this paper addresses the problem of reintegrating female combatants in Colombia’s violent conflict into civil society after they have left armed groups. In doing so, it demonstrates the centrality of exposing these false assumptions regarding the nature of transitional justice in achieving sustainable post-conflict structures, and potentially, in preventing conflict before it begins.

Reflecting on the ways in which transitional justice may fail female combatants, this paper exposes three central concerns as inaccurate reflections of the realities of both men and women affected by conflict. These false dichotomies are (1) between the conflict era and the post conflict era; (2) between public and private space; and (3) between the commonly-employed legal concepts of victim and perpetrator. In order to fully examine the complexities of these dynamics, this article synthesizes contemporary feminist scholarly work on transitional justice with detailed research on gender in Colombia. It first traces the evolution of feminist thinking on transitional justice mechanisms, and then contributes to the existing feminist scholarship on transitional justice by examining the additional complication of women who may have suffered the horrors of conflict, but who have also been perpetrators of some of these horrors. Utilizing detailed research on the experiences of both Colombian women and men, it critiques transitional justice approaches from a gender-oriented perspective, and seeks to imagine what a gender-inclusive strategy might look like in Colombia.

The full article is available for download here.

Ming-Sung Kuo Responds to Comments on His Article by David Gartner & Karl-Heinz Ladeur

by NYU Journal of International Law and Politics

[Ming-Sung Kuo is an Assistant Professor at the University of Warwick Law School.  He is the author of Taming Governance with Legality? Critical Reflections upon Global Administrative Law as Small-c Global Constitutionalism, 44 N.Y.U. J. Int’l L. & Pol. 55 (2011).]

It is a great pleasure and honour to have Professors Karl-Heinz Ladeur and David Gartner as interlocutors in response to my piece to appear in the NYU Journal of International Law & Politics (JILP).  Their critical comments and insightful observations shed illuminating light on important issues my piece aims to address.  Instead of writing a ‘rejoinder’ addressing each single challenging issue raised by Karl-Heinz and David, I am taking this opportunity to highlight our disagreement and the underlying concerns we share about global administrative law (GAL), which will not only enhance the accessibility of my JILP piece but also take the debate on GAL a stage further!

The questions both responses have raised with my piece can be said as resulting from the fact of the fragmentation and pluralisation of this globalising legal landscape.  Situated in this institutional background, both Karl-Heinz and David have asked three important questions centring publicness, legitimacy, and constitution.  Notably, these three notions have seen their enduring influence on the discussion on domestic law.

The first question concerns the idea of publicness in GAL.  To be clear, my characterisation of post-public legitimacy in global administrative law does not imply my agreement to this positioning.  Specifically, my concern is that despite speaking in the name of publicness, global administrative law is moving toward the privatisation of legitimacy as also noted by Karl-Heinz.  This concern arises against the backdrop of the fragmented, postnational legal order.  It is also here where Karl-Heinz and David and I have parted company.

In response to my critique of GAL’s taking existing institutional settings as the sites where publicness is expected to materialise, David points to their advantages in ensuring expanded participation by affected parties as more focused institutional settings and regulatory domains.  It is true that affected parties can easily focus attention on these tangible sites rather than on some elusive transnational or infranational (as Professor Joseph Weiler terms it) civil society.  However, as rightly noted in GAL, types of global administrative law have already extended beyond the formal public (inter)governmental organisations to the so-called standard-setting private bodies.  Then arises the question: while GAL posits that regulatory power-exercising bodies are regarded as the focused sites of participation by affected parties, the very private form of some power-exercising bodies in regard to global administration may hamper affected parties from participating in their related practices.  For example, it is hard to know when standards or practices resulting from private bodies will be included in the body of GAL.  Private standards are not created at the moment when public (inter)governmental organisations reach out to private bodies for some particular regulatory purpose.  Rather, they materialise through a long process of trial and error involving the members or stakeholders of private bodies and only when they are regarded as mature will public (inter)governmental organisations incorporate them into the formal regulatory framework.  In other words, it will be too late for affected parties to participate in their formation if we follow GAL’s criteria of deciding the sites of publicness by reference of existing regulatory power-exercising bodies.

“Constitutionalizing” Global Administrative Law or Experimenting With a Hybrid Transnational Legal Order? (a Response by Karl-Heinz Ladeur)

by NYU Journal of International Law and Politics

[Karl-Heinz Ladeur is a Professor Emeritus at the University of Hamburg.]

1. Ming-Sung Kuo’s article proffers several hypotheses. One is that global administrative law can be regarded as an element of a “small c-constitutionalism” – as opposed to “large C-Constitutionalism” in a more fundamental approach to a transformation of international law into a new type of “global law beyond the state” (G. Teubner). The concept of “constitutionalism” has different meanings – this is a problem which might hinder a productive discussion. On the one hand it is focused on a kind of self-reflection which refers to “secondary norms” of procedure, competence, systematic differentiation, validity etc. (in the sense of H. L. A. Hart). These “secondary norms” process a “control project” for “primary norms” which then reshapes social norms as legal ones. On the other hand we have a strong version of “constitutionalization” which can be regarded – with a certain simplification – as a transfer of state-related conceptions of a hierarchy of norms (with the constitution at the top) to the international domain. The role of constitutionalization is seen as a frame of reference for the closer integration of international law which is meant to supplement the weakening function of the state in the globalization process.

These are but the general foci of different versions of “constitutionalism”. Even if one leaves aside the descriptive approaches to the constitution of political sciences there is a “political constitutionalism” within the legal system which is no less normative than the “legal constitutionalism”. Both refer to some basic legal structure that has a fundamental role for the processing of the law in a modern state: the former version epitomizes the roles of parliament, public opinion, government as institutional devices for the preservation of not only democracy but also civil rights, whereas the latter tends to regard “constitutionalism” to be incomplete once it no longer includes judicial protection of civil rights even from infringements by parliamentary statutes.

Adopting legal conceptions that have been developed in the history of the western state in the domain of global law should not be regarded as impossible, however, it is, as Benedict Kingsbury rightly puts it, “challenging”.  This is all the more so as “global administrative law” might rather be regarded as a kind of “ersatz” for the missing foundations of the new arenas of the globalization of law and public governance. There is neither a clear distinction between legislative and administrative functions, not to mention the negligible role of courts in the transnational domains of decision-making. There is no clear separation of constitutional and administrative questions either. There is not even a settled core of legal principles that might give orientation to the evolution of global law. This weakness of global administrative law should not be played down by a reference to a vague conception of  “small c-constitutionalism” which might sound like a contradiction in adiecto because any constitutionalism is focused on basic issues of a polity. In some countries such as Germany a tendency toward a comprehensive “constitutionalization of the legal order” as a whole is gaining momentum in the practice of the Federal Constitutional Court, but this is a top-down approach within an idea of a “legal constitutionalism” which presupposes a high degree of legal and political homogeneity.

Global Administrative Law & The Challenge of Legitimacy: a Response by David Gartner

by NYU Journal of International Law and Politics

[David Gartner is an Associate Professor of Law at the Sandra Day O’Connor College of Law, Arizona State University.]

Thanks for the opportunity to offers some thoughts on Ming-Sung Kuo’s provocative and interesting article entitled Taming Governance with Legality: Critical Reflections Upon Global Administrative Law as Small-c Global Constitutionalism, which highlights some of the key tensions within the project of Global Administrative Law (GAL). The core underlying concern that the article raises about whether Global Administrative Law adequately addresses the challenge of fostering legitimate and meaningful participation within global governance is a critical question and hopefully it will spur much wider debate on that issue. The article raises valuable questions about the limits of expertise in overcoming the challenge of legitimacy but also understates the potential significance of deliberation in fostering more accountable governance. Ultimately, the project of Global Administrative Law holds more promise than the article suggests precisely because its real ambitions are more modest than Ming-Sung interprets them to be.

The article proceeds in three steps, each of which seems essential to reaching Ming-Sung’s ultimate conclusion. The first step is the claim that Global Administrative Law has emerged as a kind of “small c” constitutional law of global governance. The second step is that the legitimacy of Global Administrative Law rests on a conception of publicness which seeks to connect democracy and the rule of law without relying on a “capital C” Constitution. The third step in the argument is the claim that the concept of publicness articulated within Global Administrative Law is fragmented because of its focus on particular regulatory regimes and that it ultimately offers a post-public notion of legitimacy.
Taking up the first step in this argument, the core question is whether Global Administrative Law really does evolve into “small-c” constitutionalism. Nearly all Global Administrative scholars frame their ambitions more modestly with a focus on making existing international institutions more accountable rather than seeking to design a constitutional order. The article suggests that the project nonetheless takes on a constitutional character as its underlying normative principles gain currency but this begs the question as to whether any norms of accountability could be similarly characterized as constitutional norms. Nonetheless, Ming-Sung is right to question whether the boundaries between merely administrative procedures and more robust conceptions of governance can so easily be defined and this is an issue that deserves further exploration.

The next major claim made by Ming-Sung is that the conception of publicness developed by Global Administrative Law is really a privatization of legitimacy. Although the article rightly highlights some of the limits of expertise in furthering democratic aims, it seems to reach too far in suggesting that deliberative conceptions of democracy can so easily disintegrate into outsourcing by another name. GAL values expertise not because it is less prejudiced than parliamentary debate, as the article suggests, but rather because it can in the right context foster meaningful deliberation and require public justification of the reasoning behind decision-making in ways that could lead to more broadly acceptable decisions. While I am quite sympathetic with Ming-Sung’s concern that reasoned decisions and transparency are not enough to overcome the democratic deficit in global governance, I am less persuaded that deliberation can play little meaningful role in responding to this challenge.

The last major step in Ming-Sung’s argument is that Global Administrative Law offers a post-public conception of legitimacy. The basic idea outlined in the article is that GAL abandons a principal-agent model of accountability and instead relies upon individual regulatory publics within a given regulatory field which actually constitute private clubs with privileged players. There is clearly a serious risk of regulatory capture and also of the exclusion of affected but less well-organized actors within many of the institutions highlighted by GAL scholars. Yet it is also the case that more focused institutional settings and regulatory domains can make expanded participation by affected parties more plausible in a global context. It is much easier to ensure participation by those most affected by the building of a particular dam or in a particular field of global health than it would otherwise be to constitute participation at a global scale. The significance of transparency is that it enables the workings of a given institution to be subject to significantly wider public scrutiny rather than limit its oversight to a privileged few. Requiring institutions to publicly disclose and defend their reasoning for major decisions also potentially supports broader public accountability. At the same time, expertise and transparency are not adequate substitutes for meaningful participation and new models of participation are required to respond to the democratic deficit that the article highlights.

Some international institutions are now experimenting with many of the core tools of Global Administrative Law and a new generation of institutions is increasingly seeking to build on the more participatory impulses which underly Ming-Sung’s central concerns in this article. The project of GAL is responding to the challenge of fostering greater accountability within an institutional universe that we inherited from the 20th century. As I have suggested elsewhere, enhancing participation by civil society actors holds enormous promise in opening up opportunities for richer deliberation than remains the case when states are the exclusive participants in the governance of international institutions. (Beyond the Monopoly of States) In order to mitigate the risks of capture that the article rightly highlights, constituency models within the governance of these institutions are important and can strengthen the likelihood of meaningful deliberation. When organizational actors are accountable to diverse counterparts, they must themselves engage in the type of public reasoning which GAL scholars hope will increasingly come to characterize international institutions more generally.

Overall, Ming-Sung’s article is a valuable contribution to an important ongoing debate not just about how we define the boundaries of Global Administrative Law but also about how we broaden our conceptual frames to respond to the challenge of legitimacy in global governance. Expanding meaningful participation in the governance of international institutions is one of the biggest challenges to fostering more legitimate and accountable governance in the 21st century. Hopefully this article will not only lead scholars to take more seriously the risks of capture and the limits of expertise within existing models but also to join Ming-Sung in examining the complex relationship between different theoretical approaches to understanding how law fits into a global architecture that remains very much a work in progress.

Taming Governance with Legality? Critical Reflections upon Global Administrative Law as Small-c Global Constitutionalism

by NYU Journal of International Law and Politics

[Ming-Sung Kuo is an Assistant Professor at the University of Warwick Law School.]

The project of global administrative law has stood out from the various efforts to tame global governance with the rule of law. By enhancing transparency and accountability, global administrative law is expected to improve the policy output of global administration, giving legitimacy to global governance. In this way, global administrative law evolves into a small-c global constitutionalism. In this paper, I trace the trajectory of global administrative law as small-c global constitutionalism and how the concept of legitimacy is recast in relation to global governance. I first point out that originally embedded in the practice of global governance, global administrative law effectively functions as the small-c constitutional law of global governance, echoing the trends toward constitutionalization. As it takes on constitutional character, however, global administrative law faces the challenges of legality and legitimacy. Turning away from state consent, global administrative law turns to the idea of publicness as the solution to its double challenges. My inspection of the notion of publicness in global administrative law shows that the strategy of resting the legitimacy of global administrative law as small-c global constitutionalism on the idea of publicness turns out to be the privatization of legitimacy, suggesting a post-public concept of legitimacy.

The full article is available for download here.

Are States Down to Pocket Change?

by Peter Spiro

Secretary of State Hillary Clinton launched a worthy initiative on Tuesday, looking to advance gay rights at the global level.  It is yet further evidence of the consequentiality of international human rights that basically all identity groups see value to pressing a global agenda. The “presidential memorandum” setting forth the initiative sends an important cue from the top about how the US should address questions involving LGBT rights in US foreign policy.

But query how much more the effort really amounts to.  Among other things, Clinton announced that the US would dedicate $3 million of foreign aid to advance LGBT rights.  That’s right, THREE WHOLE MILLION DOLLARS.

Not to be outdone on the sovereign lowball express, the Netherlands today pledged €1 (one) million to the cause of internet freedom.

Any amount of money is always to be welcomed for these sorts of things, and I know that states still give the lion’s share of foreign aid (though I think it depends on how you count). But doesn’t George Soros give away that much during his lunch hour?

Co-authors Respond to Comments by Marko Milanovic and Chiara Giorgetti

by NYU Journal of International Law and Politics

[Lea Brilmayer is the Howard M. Holtzmann Professor of International Law at Yale Law School. Isaias Yemane Tesfalidet (LL.M. ’10, J.S.D. Candidate, Yale Law School) is a fellow with the Forum for International Criminal and Humanitarian Law. They are the authors of “Third State Obligations and the Enforcement of International Law“, 44 N.Y.U. J. Int’l L. & Pol. 1 (2011).]

We would like to start by thanking the NYU Journal of International Law and Politics and Opinio Juris for arranging this opportunity to discuss our article. We would also like to thank Marko Milanovic and Chiara Giorgetti for providing their reactions.

Our proposed model of third State obligations in enforcing international law rests on the premise that if “first party States” are obligated to observe international law, why shouldn’t third States be obligated, also. As we note in our article, “third State obligations … are a function of the type of involvement that the third State has with the dispute in question.” In other words, as Professor Milanovic correctly recognizes, we argue that:

The third State obligations with which we are concerned prohibit one State from contributing to another State’s violation. A State may take the side of the innocent party, or may remain completely on the sidelines, but is not entitled to facilitate, support, or encourage the violation of international law. Third State obligations require that if a State does get involved, it should be on the side of the victim.” (Section III).

Admittedly, our proposal has serious and far-reaching implications for international law and international relations. As Milanovic points out, our proposal would impose no less burden than the State bystander model in that “… all states would still in principle be policing every other state in the relationships with third parties ….” However, we do not require third States to undertake additional efforts to “collect a new body of evidence” because they should already have been in possession of the relevant information when they decided to get involved in the first place. Third States would make the decision when they routinely formulate their foreign policy.

We share the concern with the practicability of third State obligations but we think that part of the concern and reluctance to recognize third State obligations emanates from “a mistaken idea of what they would have to look like ….” We also address the ambivalence of Article 16 of the ILC Articles on State Responsibility and think that this ambivalence is in part attributable to “… the long shadow cast by the universal extension of affirmative responsibilities, with its extreme impracticability.”

Professor Giorgetti raises two important questions. First, is “a specific finding of a violation of international law […] required to trigger a third State’s obligation?” We think that a finding of violation of international law by an independent body (for example, an international fact finding commission or arbitral tribunal) is not necessarily required. Slightly different sets of issues are raised where there is a prior finding of violation. In fact, whether third States should assist in the enforcement of judgments and awards of properly constituted international tribunals is the subject of Tesfalidet’s doctoral dissertation. The second question that Giorgetti poses is “what amounts to a violation and what is just in international relations”?

At the risk of attributing to Giorgetti what may not be her position, the question reveals the desire to keep international law separate from international politics. As we note in our article, the victim of a violation of international law and the third State are speaking different languages – the former, the language of law and the latter the language of power politics. Our third State model in part seeks to bring this into the open. Importantly, this question also touches on how far can or should international law restrict the range of choices that States have in their international relations. While we think that our proposed model does not unduly restrict third States lawful choices, that, obviously, is too extended a topic to deal with in this response.

A Response to Lea Brilmayer & Isaias Yemane Tesfalidet by Marko Milanovic

by NYU Journal of International Law and Politics

[Marko Milanovic is a Lecturer in Law at the University of Nottingham School of Law.]

In their timely article Brilmayer and Tesfalidet address an important issue of general international law – when should states bear obligations to either put an end to or not contribute to violations of international law by other states, even when the obligation in question is not owed to them specifically. They challenge the orthodox view that by and large it is not any one state’s business whether third states comply with their obligations towards others, so long as the obligation concerned is not erga omnes in character. They similarly challenge the state bystander responsibility model offered by Monica Hakimi in an article published last year in the EJIL. They offer instead a third state obligation model, under which states would be under a general obligation not to contribute to another state’s violation of international law. This model can, in their view, contribute greatly to an atmosphere of obedience to international law, and to the greater coherence of international law as a legal system. In effect, it could serve as a substitute for the (general) lack of an institutional mechanism of law enforcement by the international community.

Having read this very interesting paper, I must confess to some doubts as to the cogency of its main argument. First, it is at times unclear – or at least it was not clear to me – what the argument actually is. This lack of clarity affects both the paper’s claims with regard to the law as its stands and as to relevant policy considerations. Second, I am not convinced that the paper’s portrayal of its approach’s appeal as compared to its competitors is persuasive.

To start with my second doubt, the paper does strongly argue that it would be quite impracticable to impose Hakimi’s state bystander model to all international obligations. In other words, it would not only be unsupported by current practice but also be unwise as a matter of policy to say that all states have the positive obligation to take all reasonable measures to put an end to all violations of international law by third states, regardless of the substance or character of the obligation in question. Even the far more limited obligation for states to cooperate to put an end to breaches of jus cogens in Art. 41 of the ILC Articles on State Responsibility was subject to much debate. As Brilmayer and Tesfalidet persuasively argue, it would be unrealistic, to say the least, to apply a version of that obligation to all breaches of international law, i.e. to expect of states to actively police the compliance by all other states with the totality of international law.

I am not sure, however, that even Monica would argue differently – but I would of course leave this to her. I am also not sure that Brilmayer’s and Tesfalidet’s proposed solution is any more realistic. As I read it, they would create a negative obligation of states not to contribute to violations of international law by third states, much akin to the complicity provision in Art. 16 ILC ASR. So far so good. What they would in fact do, however, goes beyond Art. 16. In effect, they would dispense with the Art. 16(b) requirement that prohibits complicity only when the ‘accessory’ state and the ‘principal’ state are bound by the same obligation. But not only is this proposal not necessarily any less utopian than the one requiring positive action – all states would still in principle be policing every other state in the relationships with third parties – but the exact specifics of this proposal remain unclear. For instance, Brilmayer and Tesfalidet try to reduce the scope this broad prohibition on complicity by limiting it to states that are somehow ‘involved’ in the dispute, but the whole point of complicity obligations is precisely to prohibit some level of involvement. In other words, the conduct being prohibited cannot serve as a threshold for the application of the prohibition itself. The argument would, in my view, have been conceptually clearer had it taken Art. 16 ASR as a baseline and provided a more substantial critique of some of its features or requirements. Similarly, most examples of third state obligations that they offer arise in contexts such as human rights or self-determination which may already be covered by primary positive obligations to prevent certain acts, or negative obligations to refrain from certain acts or not recognize their validity. That makes the comparative advantages of their proposal harder to weigh against existing international law – I would hence have liked to see their model applied to a number of real world examples that they felt were inadequately dealt with under existing law. That said, while I may not agree with every claim in the paper, I certainly enjoyed reading it.

Third State Obligations: An Essential Discussion for International Law, a Response to Brilmayer & Tesfalidet by Chiara Giorgetti

by NYU Journal of International Law and Politics

[Chiara Giorgetti is an Adjunct Professor at Georgetown Law Center and a member of the International Arbitration Group at the Washington, D.C. office of White & Case.]

I am very pleased to join this discussion on Professor Lea Brilmayer and Isaias Yemane Tesfalidet’s upcoming article on third State obligations and the enforcement of international law.

In their article, Brilmayer and Tesfalidet argue that States have a positive obligation not to contribute to another State’s violation of a victim’s legal rights, and propose that liability is triggered only when a third State is already somehow involved in the dispute by supporting the violator rather than assisting the victim. In essence, in their proposal they suggest that third States do not frustrate international law and worsen an already alive – but legally clear – dispute.

The proposition that third States should not interfere with another State’s violation of a party’s established legal rights is intuitively correct and appealing.

It is quite surprising that international law has not produced more legal scholarship on the subject. The new article by Brilmayer and Tesfalidet fills this vacuum in a satisfying and well-reasoned manner. This is indeed a discussion that must be had.

When third States interfere in an international law conflict taking the side of the violator, they are undermining international peace and international comity, and in fact international law (see, for example, how art. 2(5) of the UN Charter requests Members to “refrain from giving assistance to any State against which the United Nations is taking preventive or enforcement action”).

Interestingly, when Tribunals consider requests for provisional measures they also often recommend that parties refrain from aggravating the disputes. An argument could be made that third State should be equally required to refrain from aggravating an international dispute.

Importantly, the authors assert that “the legal basis for imposing third State liability is that the third State is involved in the violation of the same substantive law as the primary violator.” Thus, the obligation to refrain from supporting an international law violator is a legal obligation and is grounded in international law.

I think that further support for this theory can also be given by general principles of international law, and especially those principles that require States to cooperate with one another.

An interesting question is whether a specific finding of a violation of international law is required to trigger a third State’s obligation, and what specifically would amount to a violation and what should be considered the normal performance of international relations.

Third State Obligations and the Enforcement of International Law

by NYU Journal of International Law and Politics

[Lea Brilmayer is the Howard M. Holtzmann Professor of International Law at Yale Law School. Isaias Yemane Tesfalidet (LL.M. ’10, J.S.D. Candidate, Yale Law School) is a fellow with the Forum for International Criminal and Humanitarian Law.]

International legal theorists have always had substantial interest in what can be called the “first party” question — whether States are themselves obliged to obey international law. But discussion of non-party responsibilities — what we analyze here as “third State” obligations — is very limited. There are a small number of exceptional situations (mostly involving human rights norms characterized as jus cogens or erga omnes) where non-parties are already recognized as having affirmative legal obligations to become involved; but there are no general legal duties that apply across the board. This state of affairs presents something of a puzzle: If we assume that the parties to a conflict are bound by the international legal norms that govern the dispute, then why aren’t third States? And how is international law to be enforced if other states undercut it by making their indecisions according to political expediency?

Our position is that international law does have something important to say about third State obligations. Non-parties, in our view, are under a legal obligation not to contribute to another State’s violation of international law. This obligation is satisfied if either the third State has no involvement at all in the dispute or it is involved on the side of the victim. This approach is quite different from the closest existing analog – what we call the “State bystander” model – which is limited to specific issue areas such as human rights and which rests on debatable premises concerning affirmative obligations. If third State obligations are accepted as a general matter, the result will be a tremendous expansion of international duties, but all in the service of international law.

The full article is available for download here.

New York University Journal of International Law & Politics, Vol. 44:1 Opinio Juris Online Discussion

by NYU Journal of International Law and Politics

This is the first project in a new partnership between the NYU Journal of International Law & Politics and Opinio Juris. This series of postings will feature reactions from leading scholars to our three forthcoming articles to be published in 44:1. The editorial board of the Journal would like to thank Opinio Juris and Professor Peggy McGuinness, as well as the authors and contributors, for making this project possible.

On Thursday, December 8, Chiara Giorgetti of Georgetown and Marko Milanovic of the University of Nottingham will react to “Third State Obligations and the Enforcement of International Law,” coauthored by Lea Brilmayer and Isaias Yemane Tesfalidet, both of Yale Law School. The authors argue that non-parties to an international dispute or conflict are bound by international law to not contribute to another state’s violations of international law, and further, that this obligation applies broadly and beyond limited categories of human rights violations.

On Friday, December 9, the discussion will shift to Ming-Sung Kuo’s article on global administrative law entitled: “Taming Governance with Legality? Critical Reflections upon Global Administrative Law as Small-c Global Constitutionalism.” The respondents to the piece will be David Gartner of the Sandray Day O’Connor College of Law at Arizona State, and Karl-Heinz Ladeur of the University of Hamburg.

Also on December 9, we will post Shana Tabak’s article “False Dichotomies of Transitional Justice: Gender, Conflict and Combatants in Colombia.” Using feminist scholarship on transitional justice and the armed conflict in Colombia as a case study, Tabak identifies and criticizes three false dichotomies in transitional justice that disservice female combatants and women affected by armed conflict. Ruti Teitel of New York Law School and Vasuki Nesiah of NYU School of Law will react to this article.

We anticipate this will be the first of many successful endeavors with Opinio Juris, and we hope you enjoy it.

…. Meanwhile, back in the real world

by Dan Bodansky

Durban, South Africa, December 8 – The one silver lining to the slow pace of the climate change negotiations is that it gives one plenty of time to attend “side events” to learn what is going on in the broader world of climate policy.  In the past couple of days, I attended side events on innovative climate finance, the “partnership for market readiness” (designed to assist developing countries in adopting market mechanisms), California’s new emissions trading program, and efforts to address non-CO2 aspects of the climate change problem (such as black carbon and HFCs).

Happily, a lot is going on (although unhappily it is not enough to achieve the goal of limiting global warming to 2 degrees).  For example, although China’s negotiating position may not have changed much, as Julian reported a few days ago, China is doing a lot domestically, including developing pilot emissions trading programs in a number of regions.  Brazil has made its international pledge to reduce emissions by more than a third (relative to business as usual) binding under its domestic law.  Australia just adopted a domestic emissions trading system.  California is in the process of finalizing the regulations for its new emissions trading system.  Financial institutions are developing new products to provide financing through the emerging carbon markets.   Efforts to regulate HFCs under the Montreal Protocol and black carbon under the Long-Range Transboundary Air Pollution Convention are ongoing.  And so forth and so on.  (I recently wrote a report for the Center for Climate and Energy Solutions (formerly the Pew Center) on climate activities in other multilateral forums that is available here.)

What is striking is the divergence between the virtual stalemate in the UN negotiating process and the progress that is happening on the ground.  Supporters of the UN process argue that, whatever its deficiencies, it provides the political impetus for many of these outside efforts to address climate change.  I think there is probably an element of truth to this view.  Many argue further that a new legally-binding agreement is necessary in order to continue to drive national action.  But there is also a counter view that the obsessive focus on legally-binding commitments distracts energy away from national and sub-national efforts, and that rather than continue to beat its head against the wall trying to develop a new treaty, the UNFCCC process should seek to play a more facilitative and less regulatory role.

A Response to Justine Nolan by Odette Murray, David Kinley and Chip Pitts

by Melbourne Journal of International Law

We are grateful to Justine Nolan for her thoughtful comments on the article, and in particular for highlighting two recent circuit court cases – Flomo v Firestone Natural Rubber Co in the Seventh Circuit and Doe VIII v Exxon Mobil Corporation in the DC Circuit – which affirm that corporations can be liable under the Alien Tort Statute (‘ATS’), contrary to the position of the Second Circuit majority in Kiobel v Royal Dutch Petroleum.

The judgment in Exxon (split 2-1) is particularly striking in its criticism of the majority opinion in Kiobel, not least because the Exxon judgment operates as a kind of Kiobel rehearing, in that the Exxon plaintiffs relied on a number of amicus briefs that were filed in support of the petition for rehearing en banc in Kiobel, which the Second Circuit had denied.  The Exxon majority opinion, authored by Judge Rogers, begins by recognizing that ‘corporate liability differs fundamentally from the conduct-governing norms at issue in Sosa’.[1] Whereas ‘Sosa instructs us that the substantive content of the common law cause of action that courts recognize in ATS cases must have its source in customary international law…federal courts must determine the nature of any remedy in
lawsuits alleging violations of the law of nations by reference to federal common law’.[2] The Court then proceeds to establish that ‘corporate liability is consistent with the purpose of the ATS, with the understanding of agency law in 1789 and the present, and with sources of international law.’[3] On the question of domestic law the Court finds that ‘the law of the United States has been uniform since its founding that corporations can be held liable for the torts committed by their agents.’[4] Further, looking to general principles of law as a source of international law– a source overlooked by the Kiobel majority – the Court refers to amici briefs which state that ‘corporate liability is a universal feature of the world’s legal systems and that no domestic jurisdiction exempts legal persons from liability.’[5] Thus, the Court concludes that corporations can be liable under the ATS as a matter of federal common law and that corporate liability is consistent with various international law sources (Nuremburg jurisprudence, treaty practice and general principles of law), contrary to the analysis of the Second Circuit in Kiobel which ‘conflates the norms of conduct at issue in Sosa and the rules for any remedy to be found in federal common law’ and which, ‘even on its own terms…misinterprets the import of footnote 20 in Sosa and is unduly circumscribed in examining the sources of customary international law.’[6]

Similarly, in Flomo v Firestone Natural Rubber Co, in a unanimous opinion authored by Judge Posner, the Seventh Circuit sought to “underscore the distinction between a principle of law, which is a matter of substance, and the means of enforcing it, which is a matter of procedure or remedy.”[7] The Court holds that the issue of corporate liability under the ATS is one of remedy, to be determined by domestic law.

The Exxon and Flomo judgments also consider a number of other important issues in ATS jurisprudence, including the dismissal of the defendants’ arguments against the extraterritorial application of the ATS, and, in Exxon, the identification of the correct mens rea standard for aiding and abetting under customary international law.  On this latter issue, the Exxon Court considers the Rome Statute and judgments of the ICTY, ICTR and Nuremburg tribunals to determine that the correct mens rea standard under customary international law is ‘knowledge’ and not ‘purpose’ as earlier held by the Second Circuit in Presbyterian Church of Sudan v Talisman.[8]

Both judgments display an admirable scepticism of the degree of clarity to be obtained from footnote 20 of the Sosa opinion.  In Exxon, the Court notes that ‘Sosa neither addressed the question presented by Exxon’s claim of corporate immunity, nor provided precise guidance on which body of law a court must draw to answer questions ancillary to the cause of action itself, such as corporate
liability.’[9] In Flomo, the Court notes that ‘the issue of corporate liability under the [ATS] seems to
have been left open in an enigmatic footnote in Sosa (but since it’s a Supreme Court footnote, the parties haggle over its meaning, albeit to no avail).’[10] This approach stands in stark contrast to the
majority in Kiobel, who primarily rely on a misreading of footnote 20 to justify their misguided recourse to customary international law on the question of corporate liability.

While honest about the interpretative limits of footnote 20 of Sosa, these judgments also highlight, as identified by Nolan, that the unfortunate and unnecessary issue of corporate liability under the ATS erroneously raised by Kiobel could linger with corrosive effect until ultimately corrected by the Supreme Court.  With the grant of certiorari (as expected) in Kiobel on 17 October 2011, the Supreme Court now has an opportunity to address the circuit split on the issue of corporate liability under the ATS – a circuit split that continues to widen, with the recent decision of the Ninth Circuit in Sarei v Rio Tinto on 25 October 2011 coming down on the side of corporate liability for human rights
violations (as it had previously done in Unocal).  The Supreme Court will hopefully resolve the corporate liability issue as every circuit court since Kiobel has resolved it: a common sense result favouring liability for human rights violations, and against immunity.

 


[1] Doe VIII v Exxon Mobil Corporation (DC Cir, 8 July 2011) slip op, page 53 (Rogers J).

[2] Ibid, page 54.

[3] Ibid, page 53.

[4] Ibid, page 84.

[5] Ibid, page 78.

[6] Ibid, page 53.

[7] Flomo v Firestone Natural Rubber Co (7th Cir, 11 July 2011) slip op, page 11-12.

[8] Doe VIII v Exxon Mobil Corporation (DC Cir, 8 July 2011) slip op, page 50 (Rogers J).

[9] Ibid, page 71.

[10] Flomo v Firestone Natural Rubber Co, (7th Cir, 11 July 2011) slip op, page 6.

A Response to Odette Murray, David Kinley and Chip Pitts by Justine Nolan

by Melbourne Journal of International Law

[Justine Nolan is a Senior Lecturer in the Faculty of Law, University of New South Wales]

I am in concurrence with the timely article co-authored by Odette Murray, David Kinley and Chip Pitts in the Melbourne Journal of International Law and agree that the death of the Alien Torts Statute (‘ATS’) owes more to exaggerated rumours than legal substance. The article dissects the legal reasoning of the United States Court of Appeals for the Second Circuit in Kiobel v Royal Dutch Petroleum[1] and argues that the majority simply got it wrong principally by conflating ‘the jurisdictional and cause of action aspects of an ATS suit’.

But let’s step back for a moment and recall the history of the ATS. The ATS is a unique piece of
legislation that provides non-US citizens with the right to bring tort actions in US federal courts for breaches of international or treaty law. It was enacted in 1789 but largely lay dormant until the 1980s when plaintiffs started to use it to bring claims against individuals and corporations for alleged
direct or indirect human rights abuses. Beginning with Filartiga v Pena-Irala[2] and continuing through to Doe v Unocal[3] and more recent cases, there has been a general consensus amongst the various circuits of the US courts that both individual and corporate defendants could be held accountable under the ATS for egregious human rights abuses.  However, the decisions of the
last 30 years could not be said to reflect any clear unanimity in reasoning among the various circuit court judges and it is from this background of slight discord that Kiobel has emerged. In Kiobel, the majority (2-1) held that the ATS does not confer jurisdiction upon the federal courts to hear claims against corporations because, in its view, international law has never embraced the concept of corporate liability. The majority view was met with a fierce 87 page dissent from Judge Leval who noted:

The majority opinion deals a substantial blow to international law and its undertaking to protect
fundamental human rights. According to the rule my colleagues have created, one who earns profits by commercial exploitation of abuse of fundamental human rights can successfully shield those profits from victims’ claims for compensation simply by taking the precaution of conducting the heinous operation in the corporate form.[4]

Judge Leval’s dissent in Kiobel is reflected in two more recent decisions, one in the Seventh Circuit (see Judge Posner in Flomo v. Firestone Natural Rubber Co. LLC),[5] and the other in the District of Columbia Circuit (see Judge Rogers in Doe v Exxon).[6] Both of these opinions support corporate liability under the ATS and likewise reflect the reasoning of Murray, Kinley and Pitts that the rumours of the death of corporate liability under the ATS are greatly exaggerated. The courts in Flomo and Exxon also criticise the majority in Kiobel for failing to distinguish between the norm of international law relevant to establishing the requisite conduct and the rules of remedy (determined by US
federal common law). It is this conflation that leads the majority in Kiobel down the proverbial garden path to denying corporate liability under the ATS.

As a number of cases currently before other United States circuits are based on the assumption that corporations may be liable either directly or indirectly under the ATS, it is likely that this issue will not be completely settled until addressed by the Supreme Court.

 


[1] 621 F 3d 111 (2nd Cir, 2010).

[2] 630 F 2d 876 (2nd Cir, 1980).

[3] 395 F 3d 932 (9th Cir, 2002)

[4] 621 F 3d 111 (2nd Cir, 2010) at 51

[5] No. 10-3675 (7th Cir. July 11,2011).)

[6] (No. 09-7125 (DC Cir. July 8, 2011)

Exaggerated Rumours of Death of an Alien Tort? Corporations, Human Rights and the Remarkable Case of Kiobel

by Melbourne Journal of International Law

[Odette Murray is a Legal Officer at the Office of International Law, Attorney-General’s Department, Australia. David Kinley is a Professor of Human Rights Law at the University of Sydney. Chip Pitts is a lecturer in law at Stanford Law School. The views expressed in these posts are those of the authors, and not of the Attorney-General’s department or the Australian Government]

The decision of the Second Circuit Court of Appeals in Kiobel v Royal Dutch Petroleum is remarkable for a number a reasons.  It is the first time that a court (in a 2-1 split decision) has accepted the argument that the Alien Tort Statute (‘ATS’) – which gives US federal courts jurisdiction to hear tort suits brought by foreigners for violations of international law – does not encompass suits
against corporations, and that ATS suits can only be brought against natural persons.  Ironically, this
decision, which closes the door for the time being on corporate ATS suits in the Second Circuit, was decided by the very circuit court which gave new life to the ATS with its landmark decision of Filartiga in 1980, and which has adjudicated some of the most significant ATS cases, against both private individuals and corporate actors.  Kiobel is also notable for the way in which this restrictive ruling is openly predicated on the majority judges’ strong policy objections to the ATS, as demonstrated especially strongly in the judgment denying panel rehearing of 4 February 2011.

Of the many difficult questions raised by the ATS and its operation, one that has featured prominently in the jurisprudence (and was decisive in Kiobel) is the question of the so-called ‘scope of liability’ of the statute — that is, who can be liable under the ATS (state actors, private actors, individuals or corporations) and how can they be liable (for their direct actions, for aiding and abetting a principal perpetrator, or for being complicit in the wrongful actions of others)?  To determine this scope of liability under the statute, courts must also determine the antecedent question of what law governs that determination, that is, US domestic law (eg federal common law) or international law.  And as decisions such as Khulumani, Talisman and Kiobel show, a court’s decision to look to federal common law or international law to determine rules on the liability of private actors or corporations, and aiding and abetting or complicity, can have a significant impact on the outcome of an ATS claim.

In (very) short summary, the decision of the majority in Kiobel proceeds as follows: first, drawing on Sosa, and Second Circuit precedent from Filartiga to Khulumani, the majority determine that the question of whether a corporation can be held liable for a violation of the law of nations is a question that must be answered by reference to international law itself.  Secondly, having determined that the governing law is that of international law, the majority consider whether corporations can be liable
under customary international law and determine that there is no ‘norm of corporate liability’ in customary international law. The majority chiefly rely on their factual understanding that no international tribunal has (to date) had formal jurisdiction over a corporation and that international law has not (to date) imposed criminal liability on corporations.  The majority’s reasoning is met by a fierce dissent by Judge Leval, who, through a series of criticisms of the majority’s reasoning (some more effective than others) concludes that corporations can be held liable under the ATS.

In our article we explore two main themes: how the majority could decide the way they did in Kiobel and why that decision is wrong.  The first prompts us to look into the various ‘choice of law’ debates that have featured in the jurisprudence in order to recognise how the majority in Kiobel could determine both that international law governs the question of corporate liability and that there is no norm of corporate liability in international law.  The balance of the article considers the reasoning in the Kiobel decision itself, and posits three main criticisms: first, federal common law and not international law governs the question of corporate liability under the ATS; secondly, the majority’s reasoning erroneously limits ATS causes of action to those violations of the law of nations which constitute crimes under international law, contrary to Sosa and the Second Circuit’s own precedents; and thirdly, practice and policy confirm that corporations can violate and have violated norms of international law.

As to the first of these criticisms, we argue that, after Sosa, it is clear that an ATS cause of action — that is, the right to sue — arises under federal common law. Therefore, the reasoning of the majority in Kiobel, that unless a corporate defendant would be directly liable for its conduct under international law then it cannot be liable under the ATS, is contrary to Sosa and a host of other precedents. The ‘law of nations’ aspect of an ATS claim is not that the right to sue (or be sued) has to be identified in international law but rather that the conduct alleged must violate a norm of international law that meets the standard set down in Sosa of being ‘a norm of international
character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century paradigms we have recognized [of piracy, violation of safe conducts, and infringement of the rights of ambassadors].’

Our second criticism is that the majority effectively reduce ‘violations of the law of nations’ under the ATS to international crimes. This is because the majority argue that corporate liability is a question of international law, and that the only form of direct responsibility in international law for private actors is that of criminal responsibility. As the precedents make clear, however, the ATS is not limited to suits alleging conduct amounting to international crimes, but includes any violation of international law that meets the Sosa standard.

Our third criticism is that the majority’s analysis of whether corporations are ‘subjects’ of international law is in error, for the simple reason that such analysis is irrelevant to the question of whether the
United States, through the enactment of a statute, could impose domestic civil liability on corporations for conduct that violates international law.  In fact, as we argue, corporations have
increasing capacities, rights and duties in international law, which should help assuage the manifest discomfort that some US circuit judges apparently feel for ATS suits against corporations.  On this apparent discomfort (or indeed, hostility to ATS suits), we conclude by considering some of the misplaced factual understandings and policy rationales that underpin the Kiobel majority’s manifestly
erroneous and restrictive ruling.

The full article may be accessed here.

What Is a Black Swan Event?

by Kenneth Anderson

(Update: On a more serious note, Stuart Benjamin at Volokh discusses whether Gingrich saying he would appoint Bolton as Secretary of State violated any law, as has been argued around the blogosphere; Benjamin says no law violated.)

One of my Business Associations students asked me what a “black swan event” is – I think she read it in a Wall Street Journal article.  The following is a “cascading” black swan event:

  • Newt Gingrich becomes the Republican candidate in 2012.
  • Newt Gingrich wins presidency in 2012.
  • Newt Gingrich somehow recalls impetuous campaign promise to appoint John Bolton as Secretary of State.
  • US Senate magically becomes filibuster proof Republican in 2012 election.
  • US Senate okays John Bolton as Secretary of State.
  • John Bolton reads Ken Anderson’s book on US-UN relations appearing just in time for big Republican primaries in 2012, concluding that it will be his user manual.
  • John Bolton especially likes part where Anderson describes Bolton’s work on UN reform in 2005.
  • John Bolton writes, in Claremont Review of Books, glowing review of Anderson’s “Living With the UN” (penciling in an addendum, “Or Not.”).
  • President Gingrich, at Secretary Bolton and Vice-President Bachman’s urging, nominates Anderson for US ambassador to UN.
  • Anderson is approved by the Senate.
  • World ends.

Is the Extraordinary Chamber of the Courts of Cambodia a Total Failure?

by Julian Ku

Yes, at least according to this account by Douglas Gillis in Foreign Policy, the ECCC has been nearly a complete and utter failure (and a waste of money).  The main problem seems to be, according to the article, incompetent international judges (or at least one shady German judge). Obviously, the U.N. Secretariat, which was managing this tribunal, seems to have screwed things up.

NEW YORK/PHNOM PENH, Cambodia — In the evening hours of a sweltering Friday at the end of April, a team of U.N. lawyers in Cambodia alerted Secretary-General Ban Ki-moon to a crisis at a tribunal built to serve the millions of victims of the Khmer Rouge, arguably the most important court functioning in the world today.That day, the lawyers’ bosses — a judge from Germany and a prominent Cambodian appeals judge — had shut down an investigation of two  Khmer Rouge military leaders for war crimes and crimes against humanity before it had even really begun.

“It is our duty to notify you that we consider, as a matter of law and procedure, that the co-investigating judges did not conduct a genuine, impartial or effective investigation and as such did not discharge their legal obligation to ascertain the truth,” the lawyers wrote. “In our view, the decision to close the investigation at this stage breaches international standards of justice, fairness and due process of law.”

The families of countless victims in the case would be denied justice. The leaders of Pol Pot’s navy and air force — accused among other crimes of eliminating more than 4,500 of their subordinates — would never be held to account for their alleged involvement in torture, executions and forced labor.

And this would undoubtedly appear to have been done under pressure from the Cambodian government, which had publicly announced that the case, as well as another larger investigation, was not “allowed.”

The team told Ban that it was writing “to seek your guidance on how to proceed in these circumstances.”

In the seven months since the letter was written, the United Nations has not offered a substantive answer to these problems. Indeed, as matters continued to worsen, officials at headquarters in New York determined that their hands were tied, leaving matters to deteriorate to the point of scandal.

David J Bederman (1961-2011)

by Duncan Hollis

I’m so saddened to report that Professor David J Bederman has passed away at the age of 50 after a lengthy illness. Emory has a tribute to David here.

I still vividly remember my first encounter with David’s work when I was a new attorney in the Legal Adviser’s Office and read his concise, witty and simply wonderfully written introductory text, International Law Frameworks. I was inspired by how he managed to condense (accurately) the intellectual history of international law into a mere dozen pages. I was struck both then, and later as I came to know David as a colleague, by just how wide and deep his knowledge was of international law, and the truly passionate manner in which he pursued his interests in this field (which, I’d add was only one among many areas of expertise, alongside admiralty law and a successful Supreme Court practice).

Over the last six months, I was fortunate enough to work with David on a chapter that he wrote for my forthcoming Oxford Guide to Treaties. David authored the chapter on Third Party Rights and Obligations in Treaties. I was so impressed that, even as his health failed him, he wanted to hone his chapter into what I hope will be a seminal contribution to the field of treaty law.  I know I’m not the only international lawyer who was touched by David or his work, but I will say I consider myself fortunate to have known and worked with him.

In lieu of flowers, the family asks that donations to be made in Professor Bederman’s memory to the Patient Assistance Fund at the Winship Cancer Institute at Emory University or to the laboratory of Dr. H. Richard Alexander Jr., professor of research and associate chairman for clinical research at the University of Maryland Medical Center in Baltimore.

A Response to Gideon Boas by Christian De Vos

by Melbourne Journal of International Law

Gideon Boas makes a number of valuable points in his comments on my article, not least
of which is the fact that the evidentiary challenges I highlighted with respect to the Lubanga trial are not new.  I particularly appreciate the experiences he recounts from his time at the International Criminal Tribunal for the former Yugoslavia (‘ICTY’), which, like its sister tribunal in Rwanda (‘ICTR’), shares an analogous provision to Article 54(3)(e) of the ICC Statute in Rule 70 of the ICTY and ICTR’s Rules of Evidence and Procedure. Like the ICC, the ad hoc tribunals are also dependent on state cooperation and confidential material has been similarly critical to their proceedings. Rule 70 was designed to encourage third parties (usually states) to share sensitive information with the tribunals, much of which involved disclosure restrictions on the grounds of national security. Unfortunately, the caution that, according to Boas, characterized the terms upon which ICTY prosecutors agreed to accept (or not accept) such information appears to have been absent in the Lubanga trial, where the Prosecution relied too heavily on reports that MONUC had insisted remain confidential.

There is reason to hope that the lessons of Article 54(3)(e) have been learned as, to date, other trials have avoided the sort of disclosure brinksmanship that characterized the Lubanga proceedings. By contrast, the issue of intermediaries will undoubtedly persist. While intermediaries were, to a lesser degree, a feature of the ad hoc tribunals, the ICC’s limited resources, combined with the immensely complicated terrain in which it must carry out its operations, means that intermediaries are likely to be a permanent part of the Court’s landscape.  The Draft Guidelines that my article highlights underscore the likelihood that intermediaries will be increasingly engaged in all stages of the Court’s work, ranging from preliminary examinations to reparations proceedings. As one commentator has noted, ‘Intermediaries provide scalpels for those tasks where the Court may otherwise approach the
situation with a hatchet.’[1]

The precise nature of this relationship — contractual or not, compensated or not — will vary depending on the nature of an intermediary’s engagement with the Court.  Indeed, the most recent version of the Guidelines notes that intermediaries’ functions ‘may differ from one organ or unit of the Court to another,’ suggesting that the degree to which a policy can be effectively ‘standardized’ at a Court-wide level remains an open question.[2] Still, efforts to clarify intermediaries’ status within the ICC institutional framework are welcome, as the events of Lubanga make clear that the Office of the Prosecutor’s (‘OTP’) engagement with intermediaries can pose grave risks to the integrity of trial and the rights of the defense.  The communication chain from situation-country to The Hague is long and perilous and the risk of abuse requires close oversight.

Importantly, the revised Draft Guidelines, current as of August 2011, appear to better understand some of these risks than the previous version, as they lay out with greater clarity three ‘categories‘ of intermediaries = contracted, self-appointed, or those approved by the Court by way of affidavit — with corresponding measures of support that will assist them in carrying out their duties.  The revised Guidelines also acknowledge more forthrightly that intermediaries come to the ICC in a variety of ways — some by choice, others by circumstance — which may affect the nature of their relationship with the Court.  Finally, the Guidelines make clear that organs or units of the Court, like the OTP, can ‘adopt specialized policies’ to guide their relationships with intermediaries.[3]

It is important, then, that the OTP develop a detailed set of policies to guide its relationship with intermediaries. At the same time, such a focus should not diminish the work of intermediaries across other units of the Court as well, particularly the Victims Participation and Reparation Section, which remains grossly underfunded and understaffed.

 


[1] Holly Dranginis, ‘The Middle Man: The Intermediaries of International Criminal Justice’, 21 August 2011 <http://justiceinconflict.org/2011/08/21/the-middle-man-the-intermediaries-of-international-criminal-justice/>

[2] Draft Guidelines Governing the Relations between the Court and Intermediaries (August
2011) 2.

[3] Ibid 3.

A Response to Christian De Vos by Gideon Boas

by Melbourne Journal of International Law

[Gideon Boas is an Associate Professor in the Monash Law School and a former Senior Legal Officer at the ICTY.]

This article deals carefully with the Lubanga proceedings before the ICC, and in particular the difficulty caused by the Prosecution collecting information through the extensive use of confidentiality agreements under Article 54(3)(e) of the Rome Statute.  One of the great difficulties confronting prosecutors in international war crimes trials is the collection of reliable evidence with which to build their cases and to secure conviction. Such investigations invariably occur in foreign countries, with limited cooperation and potential witnesses who may be either in genuine fear or who may themselves be compromised by their own role in events.

The ICC prosecutors are not alone in managing these difficult issues. At the first of the modern international criminal tribunals, the International Criminal Tribunal for the former Yugoslavia, the obtaining of information on condition of confidentiality so as to generate new evidence that might assist in particular prosecutions caused considerable difficulties. In particular, the use of ‘Rule 70’ material to which often attached national security implications for State providers had the constant potential to conflict with the obligation of the prosecution to disclose all potentially exculpatory material to an accused. While the problem was often avoided, it required prosecutors there to be very careful about the terms upon which they agree to accept information under strict terms of confidentiality. Indeed, some prosecutors steadfastly – and quite rightly – would refuse certain information proffered for just such reasons. It is troubling that the prosecutors in the Lubanga case were unable to secure agreement from information providers even to allow the Chamber to conduct an ex parte review of the material until a stay of proceedings had been ordered. This process raises questions about investigation approaches and the ethics of prosecuting war crimes in such difficult circumstances.

The other — and possibly more troubling — aspect dealt with in this article relates to the use of so-called ‘intermediaries’. The clear problems associated with the reliability of evidence obtained by the prosecutors through intermediaries, and a refusal to comply with orders of the Trial Chamber, led to a stay of proceedings.

I have long been troubled by the use of information collected by persons other than the Office
of the Prosecutor in these trials. Obvious questions about partiality and reliability arise, even in the best of circumstances. In the Milosevic proceedings, for example, a considerable body of information had been collected by NGOs in relation to the Kosovo indictment. In particular, Human Rights Watch
had an operation on the ground collecting confidential witness statements, among other things, that were transferred to the Office of the Prosecutor to assist in its investigation. I became deeply troubled by the prosecutors’ endeavour to have admitted into evidence these statements and even to have the content of that evidence summarised and presented to the Court as quite remote
hearsay evidence about very serious crimes. The relaxed rules of evidence in international criminal courts and tribunals makes more critical sound investigation and evidence collection practices.

The regrettable course of the Lubanga trial highlights the problems associated with prosecuting war crimes trials in international courts and, specifically, investigation and trial preparation practices employed by prosecutors in these difficult conditions. This article highlights well these tensions and makes important recommendations for future proceedings.

Somone Who Comes between One Person and Another: Lubanga, Local Cooperation and the Right to a Fair Trial

by Melbourne Journal of International Law

[Christian De Vos is a PhD researcher at the Grotius Centre for International Legal Studies. The author may be contacted at c.m.devos [at] cdh.leidenuniv.nl]

Having recently embarked on a multi-year project that seeks to interrogate the possibilities for ‘local ownership’ in the context of the International Criminal Court (ICC), my article approaches the concept through the lens of locally-based informants and so-called intermediaries.  Intermediaries, in particular, have emerged as a challenge for the ICC insofar as they often act as the Court’s first (or most frequent) point of contact with potential witnesses, victims, and affected
communities, though they are not formally in the Court’s employ.  In the Court’s words, an
intermediary is ‘someone who comes between one person and another; who facilitates contact or provides a link between one of the organs or units of the Court or Counsel on the one hand, and victims, witnesses … or affected communities more broadly on the other.’

While intermediaries raise a host of issues for the Court, I examine the challenges that the Office of the Prosecutor (‘OTP’) and, by extension, Trial Chamber I, have faced in the context of the trial of Thomas Lubanga, which is the ICC’s first and, five years on, longest running case to date.  I focus in particular on two decisions by the Trial and Appeals Chambers, both of which underscore the practical and normative challenges that engagement with local actors presents for the Hague-based Court.  In the first decision, the Trial Chamber concluded in 2008 that Lubanga’s fair trial rights
had been compromised by the OTP’s failure to disclose the sources of potentially exculpatory evidence it had collected on the condition of confidentiality from various local informants, largely by the United Nations mission based in the Democratic Republic of Congo (MONUSCO) but also from other local NGOs.  As a result, the Trial Chamber stayed the proceedings on the eve of Lubanga’s trial, leading to almost a year’s delay from when it was scheduled to start.  Some commentators have also attributed MONUSCO’s initial refusal to make public the evidence in question to the ICC’s
failure to build better relations with the peacekeeping mission.[i]

Similarly, the Trial Chamber imposed a second stay in 2010 — later reversed on appeal —
because of the Prosecution’s refusal to disclose the identity of an intermediary, the veracity of whose testimony, amongst others’, had been called into question.  In that matter, concerns
were raised as to the motivations and credibility of certain intermediaries, leading the Chamber to question the OTP as to its working methods on the ground and ‘the system employed by the prosecution for identifying potential witnesses.’  Proceedings were further postponed when Lubanga moved to dismiss the case against him, again on the basis of the contested role of intermediaries.
Though Lubanga’s motion was denied, the issue may yet affect the final verdict, as the Trial Chamber made clear that it would ‘in due course … reach final conclusions on the alleged impact of the involvement of the intermediaries on the evidence in [the] case, as well as on the wider alleged
prosecutorial misconduct or negligence.’

These controversies, I argue, underscore the unique challenges that the ICC confronts
in carrying out its work from afar.  In particular, the Lubanga decisions raise three issues worthy of reflection.  First, they point to a gradual shift away from an adversarial process — where disclosure relies largely on trust in the parties themselves — to a model more common in civil law jurisdictions, where the Chamber itself is the ultimate arbiter in managing disclosure.   Second, both of the decisions reinforce the importance of the OTP doing its utmost to pre-emptively avoid tensions between its obligations to maintain the confidentiality (and security) of its informants and intermediaries, and a defendant’s fair trial rights.  In Lubanga, disclosure of potentially exculpatory documents came quite late, complicating proceedings and contributing to tensions between the Prosecution and the bench.

Finally, the decisions that I highlight make clear how much the ICC depends on local informants and intermediaries: they perform essential tasks without which the  Court could not carry out its duties. At the same time, the precise nature of intermediaries’ relationship with the Court — whether voluntary or contractual — is often fraught with complex and occasionally competing motives at play.  Greater clarity on the standards that should govern the ICC’s, and particularly the OTP’s, relationship with third parties is essential, so as to avoid the sort of challenges to veracity and motive that have characterized the Lubanga proceedings.  Notably, the Court has made some strides in this area (Draft Guidelines on intermediaries are currently under review), but confusion remains.  The need for this clarity is not only pragmatic — in order to secure convictions — but normative, so that local actors are treated, as much as they can be, as partners in the Court’s work.

The full article may be accessed here.

 


[i] Phil Clark, ‘If Ocampo Indicts Bashir, Nothing May Happen’ (Oxford Transitional Justice Research Working Paper Series, 13 July 2008).

Can the ICC Investigate Crimes in South Sudan?

by Kevin Jon Heller

That’s the question asked by my friends at Wronging Rights, in response to a recent article in Time:

TIME claims to have obtained an internal ICC memo showing that the Court is “compiling evidence of possible recent war crimes in southern Sudan, allegedly directed by Sudanese Defense Minister Abdelrahim Mohamed Hussein.” Apparently, in addition to the Prosecutor’s request for a warrant for Hussein in connection with attacks on civilians in Darfur, “the ICC is separately building a case that Hussein may be behind the killing of civilians over the past year in Kordofan, Nuba Mountains, Blue Nile state and South Sudan.”

Internets, help us figure out what’s going on here. How can the ICC be investigating these events?

To review: There are three paths to an ICC case. The first is a referral of a situation by an involved state. The second is Security Council authorization. The third is that the Office of the Prosecutor can initiate its own investigation, but only into alleged events either (1) occurring on the territory of a state that’s accepted the ICC’s jurisdiction, or (2) perpetrated by a national of a state that’s accepted the ICC’s jurisdiction.

Sudan is not a member of the ICC, and President al-Bashir is not exactly besties with Moreno-Ocampo, so we think it’s unlikely Khartoum referred this situation to the Prosecutor.  The newly independent South Sudan has not signed up to the ICC yet, so they probably didn’t do it either. (Although there is a mechanism through which a non-signatory state can accept jurisdiction of the court over specific crimes occurring on its territory. In the case of South Sudan, this would likely only be possible for crimes occurring since July 9, 2011, when they assumed sovereign authority.)

The Security Council didn’t refer these events to the ICC either. While Security Council resolution 1593 expressly requested that the ICC take up the issue of Darfur, that referral was limited to events taking place in Darfur since 2002.  None of the new areas supposedly included in the memo are located in Darfur.  So, no jurisdiction there.

And as far as we can tell, the Prosecutor should also have been estopped from initiating his own investigation because of Sudan’s and South Sudan’s non-membership.

So, uh, what gives?

Kate and Amanda have asked me to weigh in, so I’ll give it a shot.  My best guess is — as they suggest — that the OTP has received assurances from the new South Sudanese government that it will either (1) ratify the Rome Statute and accept the Court’s jurisdiction retroactively, or (2) file a declaration under Article 12(3) of the Rome Statute accepting jurisdiction on an hoc basis over the crimes the OTP is investigating.  Either way, the issue would be how far back in time South Sudan could accept the Court’s jurisdiction.  Kate and Amanda suggest that the relevant date would be 9 July 2011, South Sudan’s chosen independence day.  That makes sense, but the issue is murky — as it always is when it comes to state formation and recognition. So I can imagine two arguments for more expansive retroactive jurisdiction.  To begin with, South Sudan could argue that, for purposes of acceptance of jurisdiction, the relevant date is 7 February 2011, when the results of the independence referendum were formally published by the referendum commission.  That would be enough to justify the OTP’s investigation, because the Time article notes that the investigation is focusing on crimes committed in late May 2011.

A second argument, however, is much more interesting.  South Sudan could invoke the Eichmann “precedent” and argue that a state should have the right to give the Court retroactive jurisdiction over any and all crimes committed against its citizens, even if the state did not formally exist at the time of their commission.  Both the District Court of Jerusalem and the Israeli Supreme Court accepted a similar argument (involving domestic jurisdiction) with regard to Eichmann’s crimes against the Jews during World War II, which obviously predated Israel’s formal existence as a state.  Would the Court buy an argument based on Eichmann?  I have no idea — but I don’t think it’s frivolous.

What do you think, Kate and Amanda?

Is Argentina “Blockading” the Falklands?

by Julian Ku

Not exactly, especially since the “blockade”, is based on Argentina’s claim to sovereignty over the Falkland Islands.  Still, depending on where the vessels were “boarded”, (e.g. in the alleged EEZ?), there might be some problem here. In any event, something like economic harassment seems to be going on.

Argentine patrol vessels have boarded 12 Spanish boats, operating under fishing licences issued by the Falkland Islands, for operating “illegally” in disputed waters in recent weeks.

Argentine patrol commanders carrying out interceptions near the South American coast told Spanish captains they were in violation of Argentina’s “legal” blockade of sea channels to the Falklands.

The warning has been backed up in a letter to Aetinape, the Spanish fishing vessels association from the Argentine embassy in Madrid warning boats in the area that “Falklands, South Georgia and the South Sandwich Islands and adjoining maritime spaces are an integral part of the Argentine territory.”

Argentina looks like it is going to do a full court press, both diplomatically and otherwise, to pressure the UK into talks on the Falklands’ future. And I think it has a good chance of working.

The Post Office as International Law Bellwether?

by Harlan Cohen

News of the U.S. Postal Service’s struggles has been circulating for months, if not years. Today, the news is of distribution center closings, layoffs, and the end of next-day mail. The end of Saturday delivery may not be far behind. Obviously, a large part of the story is increased competition from independent parcel carriers – UPS, FedEx, DHL – and from email.

This shift from USPS to its competitors underlines the radical changes that have taken place in cross-boundary activity and its regulation. Negotiating cross-border postal service has often served as a model of modern international law’s role and effectiveness. Postal agreements were among the first treaties negotiated by the Washington administration in the U.S. (and among the first examples of executive agreements), and the 1874 Treaty of Bern setting up the General Postal Union was one of the first major multilateral treaties, setting up one of the first international organizations – and often heralded as such. The Universal Postal Union, as the General Postal Union became known, now has 192 member states and serves as U.N. Specialized Agency. And “Mailing a letter reliably and easily to anyone in the world,” was number 2 on the American Society of International Law’s “International Law: 100 Ways it Shapes our Lives.” Here, in many ways, was the model of modern international law: States at the center, negotiating the reciprocal regulation of cross-border activity, and international law allowing coordination for mutual benefit.

But the end of the Post Office’s dominance highlights how this picture has changed. I’m not an expert on this area (and I invite thoughts from anyone who is), but the private parcel carriers seem to stand outside this state-centric international law model. (It’s not that the state has disappeared, just that it’s chosen to regulate, or not, in different ways.) The private carriers gain access to foreign markets, not through state-to-state agreements, but by establishing local footprints in different countries and/or negotiating directly with governments. Rather than being regulated by a central state-controlled IO, they operate amongst a complex web of state laws, private regulatory regimes like the International Organization for Standardization (see DHL’s website touting its ISO certifications), and private Codes of Conduct (see UPS’s here, referencing the U.N. Global Compact’s Human Rights Principles). The Internet presents governance models all its own.

It seems that just as the Post Office’s monopoly has been broken, so too has traditional international law’s. What comes next? We have our work cut out for us.

When It Rains, It Pours (on Greece)

by Julian Ku

These are not the best of days for Greece, and even relatively small matters, like their ongoing dispute with Macedonia over the name “Macedonia” is going against them.

Greece was wrong to block Macedonia’s bid to join Nato in 2008 because of a row over its name, the International Court of Justice has ruled.

It said Athens should have abided by a 1995 deal not to block Macedonian applications if made under the name Former Yugoslav Republic of Macedonia.

The full judgment is here. Then again, since there are no remedies ordered except the declaration that Greece breached its agreement, I suppose this will hardly cause (more) riots in Athens.

China’s Meaningless Commitment to “Legally Binding” Climate Change Obligations

by Julian Ku

Following up on Dan Bodansky’s excellent post, and our interesting discussion here on MEAs, I wanted to point readers to this useful report from Durban by Reason’s science correspondent Ronald Bailey.  Bailey has a very useful breakdown on why China’s supposed shift on its views on a new climate change treaty is really meaningless. Here is his summary of China’s “breakthrough” position:

So here’s what China apparently wants the rest of the world to do: (1) agree that China’s greenhouse gas targets can be different from those imposed on rich countries, (2) agree that for the next 9 years rich countries will continue to cut their greenhouse gas emissions under the Kyoto Protocol while China’s continue to grow, (3) agree that no negotiations take place on targets until a scientific review is finished in 2015, and (4) agree that rich countries begin showering poor countries with $100 billion in climate reparations annually. If the rich countries will just do that, China will consent to begin negotiating some kind of “legally binding” treaty after 2020. Frankly, with these preconditions, it seems that China’s current position actually remains pretty much what it has always been: It will accept legally binding limits on its greenhouse gas emissions when Hell freezes over.

Durban or Bust

by Dan Bodansky

Another year, another climate COP.  This year’s conference of the parties (COP)  is in Durban, South Africa.  The South Africans have provided a wonderful venue and the meeting has proceeded thus far with few of the histrionics of Copenhagen and Cancun.  But a certain weariness has crept into the proceedings, as massive numbers of people gather year after year, with little to show for their efforts.   Global emissions continue to grow (2010 set a new record) and the science of climate change becomes ever stronger (even a skeptical group at Berkeley recently concluded that climate scientists had not distorted the temperature record).  But rising temperatures have failed to thaw the international negotiating process, where progress remains glacial (at best).

This year’s meeting  has extra urgency, given the expiration of the Kyoto Protocol’s emission reduction targets next year.  African countries have pledged not to allow the Kyoto Protocol to die on African soil.  But a chain of dominoes could topple their efforts.  The European Union has said it would agree to a new commitment period under Kyoto only if the other major economies (read the United States, China and perhaps India) agree to launch a new round of negotiations to develop a treaty setting binding limits on their emissions.    The United States has said that it would be willing to go along with a new round of negotiations, but only if the mandate makes clear that a new agreement would apply symmetrically to all of the major economies.  Meanwhile, China has seemed to say that it would be willing to accept emissions targets in 2020, but that new negotiations should not begin until 2016, after a review has been completed of what has been done to date.  And India seems unwilling to go down the legally-binding route at all.  So finding an equation that accommodates all of these variables poses a significant challenge.  Many expect it to be impossible, which would make the “success” of Durban dependent on whether, at the end, the European Union caves — an outcome that one can usually bank on in the climate negotiations, but which appears less certain here.

If Durban fails to save the Kyoto Protocol, then the Rio+20 meeting in June will provide the last opportunity.   This prospect has reportedly made Brazil, in particular, extremely nervous (and hence eager to reach a deal here), since nothing would be more likely to spoil Rio+20 than injecting climate change into the meeting.

A Response to Anastasia Telesetsky by Karen Scott

by Melbourne Journal of International Law

Professor Telesetsky, in her generous comments on my article in volume 12(1) of the Melbourne Journal of International Law, raises two pertinent questions.  First, why has there been a profusion of cooperative efforts across treaty bodies and second, what are the linkages that are most effective in compelling compliance with treaty regimes?

In relation to the first question, Professor Telesetsky disagrees with my observation that MEAs are ‘increasingly regarded as international actors who are “capable of driving a normative agenda’”.
She goes on to note that the ultimate power and authority to shape norms rests with MEA state parties and not the secretariat. Whilst I would concede that this is essentially correct I would argue that ‘autonomous institutional arrangements’[1] within some but not all regimes undoubtedly contribute to the development of normative agendas in their own right, particularly in the context of
institutional and administrative cooperation. This conclusion is supported by the results of a recent extensive study carried out by Frank Bierman and Bernd Siebenhüner (eds).[2] Nevertheless, as I conclude in my article, those cooperative arrangements that receive active political support from state parties appear to be more effective from the perspective of environmental governance and in relation to the environmental goals of the MEA.  Of all the examples I cite in my article, the most ambitious scheme for closer institutional connection has been developed and is currently being implemented by the Basel, Stockholm and Rotterdam Conventions (the so-called ‘chemicals cluster’) and supports the integration of political as well as  administrative agendas.  I would suggest that it is a combination of state party support and dynamic MEA institutions that are together driving the institutional connection agenda.

The second question raised by Professor Telesetsky is an excellent one, to which, I suspect, there is no straightforward answer. Intuitively the creation of cooperative and institutional linkages in the specific context of compliance should support compliance with MEA obligations.  However, the only example I have come across of a multi-cooperative institutional initiative in respect of compliance — the DanubeBlack Sea Shipping Canal case — has not proven particularly effective in practice; the Ukraine remains in non-compliance with a number of its obligations under several of the MEAs involved in the initiative.  More generally, compliance regimes within MEAs rely on facilitation as much as or even more than coercion, and thus it might be argued that the creation of institutional linkages between MEAS, which streamline programmes of work and administrative obligations (such as reporting), may itself support states and make it easier for them to comply with their MEA obligations.  This is undoubtedly an area that would benefit from further legal, political and institutional research.

 


[1] This term was coined by Robin Churchill and Geir Ulfstein in ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little Noticed Phenomenon in
International Law’ (2000) 94 American Journal of International Law 623.

[2] Managers of Global Change: The Influence of International Environmental Bureaucracies (MIT
Press, 2009).

A Response to Karen Scott by Anastasia Telesetsky

by Melbourne Journal of International Law

[Anastasia Telesetsky is an Associate Professor of Law at the University of Idaho]

Professor Karen Scott’s recent publication on international environmental governance in the Melbourne Journal of International Law is a must-read piece for those concerned about international environmental law (‘IEL’) being fragmented and fractured across issues, institutions and implementation. In her article, Karen argues convincingly that the current disparate state of affairs of 500 plus multilateral environmental treaties is not cause for alarm. We are not entering the age of Humpty-Dumpty environmental law — rather, we are entering an age of synergy and possibility.

For some IEL scholars, the proliferation of treaty regimes is the precursor of a governance crisis that states appear ill-equipped to handle. Yet if we reflect on what it means to be in a crisis, we recognise that crises only emerge at decisive points when there are opportunities for change. Karen takes us in her article to one of these decisive points in current IEL public governance.  She contends, and rightly so given the evidence that she has carefully collected, that the current reality of  regime fragmentation offers new-found opportunities to link issues and institutions. Karen’s observations in her article make an important contribution to IEL scholarship.

I thoroughly enjoyed Karen’s article and appreciated her conclusion about the dynamic nature of MEAs. To be fair in this response, neither of the issues that I’m identifying as gaps are an explicit part of Karen’s well-researched project.  In reflecting on the MJIL article, the two analytical gaps for me were 1) a pragmatic explanation of why there has been a profusion of cooperative efforts across
treaty bodies, and 2) an identification of those linkages which are most effective in compelling compliance with treaty regimes.

Regarding the first gap, Karen suggests that MEAs are being increasingly regarded as international actors who are ‘capable of driving a normative agenda.’ I respectfully disagree that MEA secretariats have an autonomous international norm-generating existence outside of their member states. MEA secretariats reflect the IEL agendas of their member states.  As mentioned in her article, the Secretariat for the United Nations Framework Convention on Climate Change is restricted in its actions by its own members because of vested state interests.  While some secretariats, like
the one for the Biodiversity Convention, may be at greater liberty to make day-to-day decisions that influence future policy proposals, the ultimate power and authority to create and shape international norms regarding an MEA resides with the parties to the MEAs not the secretariat. While secretariats may partner with non-state actors who hope to influence the normative environment, this is largely irrelevant for the purposes of IEL norm generation.

It is my opinion that cooperative efforts among MEAs are then not so much a result of MEA secretariats pursuing synergies autonomously but rather a pragmatic institutional response to states spreading their limited financial resources across treaty regimes. In order to further treaty goals, MEA secretariats as part of an institutional survival strategy must capitalise on opportunities to cooperate across regimes.

On the second gap, I read with great interest the numerous examples of how MEA institutions are building synergies to exchange information, negotiating work programmes and implementing non-compliance mechanisms.  Rene Descartes once wrote, ‘A state is best governed when … few laws … are rigidly administered’.[1] Have MEAs created those critical synergies for rigidly administering laws where treaty regimes overlap or intersect on key subjects? Enforcement to compel state compliance with treaty regimes, when states have failed to voluntarily comply with a treaty regime, remains IEL’s Achilles’ heel.  Do we have any promising evidence that linking MEAs might improve IEL enforcement not just across treaty regimes but also within a given MEA?

 


[1] Rene Descartes, Discourse on the Method and the Meditations (John Veitch trans, Cosimo Inc, 2008) 21 [trans of: Discours de la méthode pour bien conduire sa raison, et chercher la vérité dans les sciences (first publushed 1924)].

International Environmental Governance: Managing Fragmentation through Institutional Connection

by Melbourne Journal of International Law

[Karen N Scott is a Senior Lecturer at the University of Canterbury, New Zealand]

The ‘fragmentation’ of international law is used as a term of description and — more commonly — as a lament.  It emphasises the isolation and disconnect between regimes and institutions and is peculiarly apt as a description of international environmental law; a complex regulatory field comprising multiple regimes and institutions giving rise to overlapping and, occasionally,
conflicting legal and policy mandates. In my article in volume 12(1) of the Melbourne Journal of
International Law
, I argue that fragmentation is not an inherently negative phenomenon and, in fact, conflation and overlap between mandates provides an opportunity for improving synergy between policies and programmes and for the more effective implementation of environmental obligations.  The question is thus not how to reverse or minimise fragmentation but how to exploit it.
The answer to this question — in my opinion — lies in environmental governance strategies. In this article I explore just one governance strategy — the creation of formal cooperative arrangements or other institutional linkages between Multilateral Environmental Agreements (‘MEAs’) — and argue that institutional connection provides an important mechanism for managing the consequences of fragmentation and improving the effectiveness of international environmental governance.

I draw on the work of scholars such as Oran Young, Thomas Gehring and Sebastian Oberthür in order to conceptualise ‘linkage’ as a governance strategy and, whilst acknowledging the infinite variety of institutional connection, confine my analysis in this article to selected formal linkages between MEAs. In particular, I identify three categories of institutional connection: first, the formal agreements often referred to as Memoranda of Understanding (‘MOU’) between MEAS; second, examples of institutional integrated management — cooperative agreements that go beyond the
typical MOU but which do not amount to fully nested arrangements — and; third, connections and linkages that are being developed by MEA compliance mechanisms or in the more general context of compliance. I use a wide range of examples of formal cooperative agreements between MEAs operating within the field of biodiversity protection, pollution prevention and control and fisheries management. I note that those MEAs with particularly dynamic institutions — such as the 1992 Biodiversity Convention — are generally more active in the context of cooperation, and those which have involved state parties as well as institutions within the cooperative arrangements — as in the case of the Basel, Stockholm and Rotterdam Conventions cluster — have succeeded in developing
deeper and more sophisticated levels of cooperation.

Whilst the success of these arrangements is inevitably variable, I conclude that overall they make a positive contribution to environmental governance and towards the attainment of the environmental
goals of the MEAs.  Nevertheless, it is important to note that there are also risks associated with closer cooperation; risks to the efficacy and, more particularly, to the legitimacy (actual and perceived) of the MEA.  Nevertheless, despite the risks, the creation of institutional cooperative arrangements between MEAs is increasingly becoming part of the landscape of international environmental law.  More generally, this trend is arguably changing that landscape and challenging the fundamentals of the international legal system itself: who we regard as participants within the
system, what the sources of international law are and even its ultimate basis in consent.

The full article may be accessed here.

Melbourne Journal of International Law, Vol. 12-1: Opinio Juris Online Symposium

by Melbourne Journal of International Law

The Melbourne Journal of International Law is delighted to be continuing our partnership with Opinio Juris. This week will feature three articles from issue 12(1) of the Journal. The full issue is available for download here.

On Monday, our discussion kicks off with Karen Scott’s article ‘International Environmental Governance: Managing Fragmentation through Institutional Connection’. Scott examines how multilateral environmental agreements have sought to manage and to exploit the fragmentation of international environmental law through the creation of formal institutional linkages, and considers the challenges this practice presents to the fundamental assumptions of international law. Anastasia Telesetsky of the University of Idaho will respond.

On Tuesday, we continue with Christian De Vos’ case note ‘Someone Who Comes between One Person and Another’: Lubanga, Local Cooperation and the Right to a Fair Trial’. De Vos considers the role of ‘intermediaries’ at the International Criminal Court, focusing on the practical and normative challenges that the use of evidence gathered by intemediaries has presented for the Office of the Prosecutor and Trial Chamber I in the Lubanga trial. Gideon Boas of Monash University will respond.

Finally, on Wednesday, Odette Murray, David Kinley, and Chip Pitts will discuss ‘Exaggerated Rumours of the Death of an Alien Tort? Corporations, Human Rights and the Remarkable Case of Kiobel‘. Of particular timeliness given recent developments, Murray, Kinley and Pitts analyse the legal and political ramifications of the Kiobel decision, and in their discussion update their article in light of the decision in Sarei v Rio Tinto and the recent grant of certiorari in the US Supreme Court. Justine Nolan of the University of New South Wales will respond.

We hope that you enjoy participating in the upcoming discussion. Many thanks to Kevin Jon Heller and the team at Opinio Juris for hosting us over the coming week. For further information about the Journal, the editors may be contacted at law-mjil [at] unimelb.edu.au

Sam Naparstek, Tiong Tjin Saw, and Suzanne Zhou

2011 Editors

Patrick McGlynn

2011 Assistant Editor

Reply to Raustiala, McGuinness, Parrish and Cleveland

by Marko Milanovic

I am very grateful to Kal Raustiala, Peggy McGuinness, Austen Parrish and Sarah Cleveland for taking the time to read my book – and I’m even happier that they liked it. They each make a number of important points, and I’ll now take the opportunity to respond to some of them.

Kal is right in saying that one of my goals in the book was to separate preliminary, jurisdictional issues from the merits of any particular case, but that in reality such a separation is difficult to achieve. Peggy mentions this as well, and I for my part completely agree. It is precisely because they want to avoid very complex substantive issues on the merits that courts resort to the preliminary question of application as a judicial avoidance technique. This is, in effect, where the tension between universality and effectiveness plays itself out. What irks me is when courts pretend that this is not what they are doing, as e.g. with the European Court hiding in Bankovic behind the formalities of the general international law doctrine of prescriptive jurisdiction, rather than openly saying that they don’t want to take the case for various practical and perhaps some principled reasons. That said, I don’t think the possibility of separating the preliminary from the substantive would ultimately be as unattainable as Kal does. If courts are persuaded that the instrument that they are applying is flexible enough to effectively operate in an extraterritorial context, much of the incentive to use the preliminary threshold question as a proxy for dealing with the merits would be eliminated. If balancing between competing interests is necessary, it can be and should be done on the merits. The model of application that I offer is designed to broadly facilitate this process – but as Kal says, the devil is in the details.

As for Kal’s point that globalization and technological progress do help to explain the increased incidence and relevance of these extraterritorial cases, I can again only express my agreement. No amount of human rights internalization would lead to cases like these without the necessary material environment. My point was primarily that globalization alone is not a sufficient explanation, nor is technological innovation. True, we didn’t have drones 30 or 40 years ago, but the Cold War did witness many examples of extraterritorial projection of state power, with assassinations through poisoned-tip umbrellas and the like – but few gave human rights treaties more than a second thought in such situations. Without the cultural shift that we have been experiencing, the increasing emphasis on individual rights and law generally, I don’t think we would be discussing these cases no matter how powerful globalization turned out to be. It is the synergy of these two social developments that has led us to fully grasp the extraterritoriality problem. Austen is also right that these cases are driven by a particular kind of activism, but that activism wouldn’t be possible, let alone fruitful, without the underlying social shifts.

In her comment, Peggy argues for the virtues of judicial minimalism. I do not necessarily disagree, so long as the minimalism is coupled with honesty…

A Response to Milanovic

by Sarah Cleveland

Louis Henkin Professor of Human and Constitutional Rights, Columbia Law School.  From 2009-2011, the author served as Counselor on International Law to the Legal Adviser of the U.S. Department of State.  The views expressed here are personal and do not purport to reflect the views of the U.S. government.

The period since September 11, 2001 has seen significantly heightened interest in the applicability of human rights treaty obligations abroad. A number of practical factors have contributed to this development: the increased extraterritorial military activity of the United States and its NATO and other allies, particularly activities in grey zones that may not be easily characterized as governed by the law of armed conflict, or in situations that evolved in and out of armed conflict; concerns over the paucity of law governing these activities – notably flamed by the Bush Administration’s claims that neither the protections of human rights law, the Geneva Conventions, nor domestic constitutional obligations were applicable to such extraterritorial activities as prolonged incommunicado detention and renditions; and the increasing willingness of national, regional and international courts and tribunals to assert the applicability of human rights law to address concerns over the existence of legal “black holes.”

As a result, although the trend had begun well before 9/11, in the last decade the International Court of Justice, the European Court of Human Rights, the Inter-American Commission on Human Rights, the Human Rights Committee (“HRC”) and the Committee Against Torture, the Human Rights Council, the General Assembly, and national courts and governments have been increasingly assertive in publicly recognizing that at least some human rights treaty obligations apply extraterritorially. The increased elaboration of rules regarding state responsibility for aiding and assisting has also meant that these obligations cross borders:  the recognition of human rights treaty obligations by some states requires closer attention to compliance by others when states collaborate in joint operations, transfer detainees, share intelligence, etc.

Despite all of this activity, however, the extraterritorial application of human rights treaties has remained strikingly under-theorized.  Few of the states and entities that have recognized extraterritorial application of human rights treaty obligations have articulated a well-developed theory of how human rights treaty law can and should apply abroad. For example, States Parties have offered a range of public positions regarding extraterritorial application of the ICCPR.  Thus, in a 2009 submission to the Human Rights Committee, Australia stated that “[t]he rights under the Covenant that a State party should apply beyond its territory will be informed by the particular circumstances. Relevant factors include the degree of authority and degree of control the State party exercises, and what would amount to reasonable and appropriate measures in those circumstances.” In its Periodic Report to the Committee the same year, Belgium stated that “[w]hen members of such armed forces are deployed abroad, as for example in the context of peacekeeping or peace enforcement operations, Belgium ensures that all persons who come under its jurisdiction enjoy the rights recognized in the International Covenant on Civil and Political Rights.” Germany has represented that “[w]herever its police or armed forces are deployed abroad, in particular when participating in peace missions, Germany ensures to all persons that they will be granted the rights recognized in the Covenant, insofar as they are subject to its jurisdiction.” And the United Kingdom formally accepted that “its obligations under the ICCPR can in principle apply to persons who are taken into custody by British forces and held in British-run military detention facilities outside the United Kingdom.”

Fortunately, into this void has come Marko Milanovic’s masterful new work on Extraterritorial Application of Human Rights Treaties (Oxford 2011).  Together with the European Court of Human Rights’ recent decision in Al Skeini, Marko’s comprehensive volume promises to transform future thinking on this subject.  I will comment on two of its most fundamental insights here…

A Response to Milanovic: The Lure of Extraterritoriality

by Austen Parrish

Austen Parrish is a Professor of Law and the Vice Dean at Southwestern Law School.

I’m grateful to Opinio Juris for inviting me to comment on Marko Milanovic’s book on the Extraterritorial Application of Human Rights Treaties. The book makes a meaningful contribution to an increasingly important issue of treaty interpretation, and the book’s sweeping treatment of how different courts and entities have addressed whether treaty-based human rights obligations apply beyond borders deserves praise. Few authors have provided this sort of detailed doctrinal description, and none to this degree of thoroughness. For these reasons, the book is a valuable resource.

Because I see much to praise in Marko’s work, my comments are less in the form of a critique and more in the form of a set of observations, with the hope that they will spur further discussion. Given space constraints, I’ll limit myself to three.

First, a key assessment underlying much of the book’s prescription is that current approaches to jurisdiction are often unprincipled and conceptually confused. Marko is likely correct in that diagnosis. But is that a bad thing? Unlike Marko, I’m not as convinced that this confusion is necessarily problematic, at least if I confine my objectives to the goal of promoting human rights. Broadly interpreting human rights treaties to be geographically unbounded will not for certain advance human rights. Nor do I believe Marko’s particular prescription – advocating for a distinction between positive and negative obligations – will necessarily do so either.

Milanovic on Extraterritorial Application of Human Rights Treaties: Judicial Interpretation and the Future of IHR Regulation

by Peggy McGuinness

Marko Milanovic’s impressive treatment of the rapidly evolving jurisprudence of extraterritoriality of human rights treaties is a must read for anyone teaching or thinking about the international human rights system.  What is most significant for me is Marko’s systematic effort to put doctrinal and policy meat on the bones of the argument that has been developing over the last decade or so that human rights obligations are “everywhere.”  I agree with both the sentiment and policy objectives of arguing that the universality of human rights means that they belong to all humans without regard to nationality or location within a particular territory.   And Marko is correct in positioning his comprehensive analysis of the cases addressing extraterritoriality within the “humanization” of all dimensions of international law, the process Ruti Teitel has described nicely as “humanity’s law.”

This is a book fundamentally about treaty interpretation, and it leaves aside the development of customary international law of human rights or of norm transformation more generally. It is a work of formal law — and in that regard is a really welcome shift toward the doctrinal in these debates.  The central question Marko seeks to address is the scope of application of specific treaty obligations undertaken by states to observe human rights  – and whether and how those obligations are triggered when a state engages in extraterritorial political, law enforcement, military or intelligence operations. Globalization has expanded the availability of extraterritorial acts from beyond the traditional notion of sovereigns acting through territories, colonies or militarily occupied areas, to include myriad cross-border law enforcement and regulatory cooperation arrangements of states of varying sizes and power.  The potential for conflicts of law is dizzying; the potential for human rights abuses is depressing.

Because we are talking about treaty interpretation, it bears focusing on the method of interpretation that Marko employ and also on the problem raised by relying on judicial (or in the case of the ICCPR quasi-judicial) interpretation, rather than looking to the treaty makers themselves to clarify and better articulate the current morass of jurisdictional clauses in the regional and international treaties.

A Response to Milanovic

by Kal Raustiala

In Extraterritorial Application of Human Rights Treaties: Law, Principles, Policy, Marko Milanovic has written an illuminating and comprehensive analysis of the increasingly contested question of the geographic scope of human rights treaties. Of course, this is a dynamic area of law—as Marko notes, many of the cases he examines are of quite recent vintage—so undoubtedly  he will be at work on second addition in a few years. But for now, this book provides a closer reading and a more detailed, one might even say exhaustive, survey of the relevant issues than anything else I have seen. He focuses especially on the jurisprudence of the European Court of Human Rights. But as he shows, there is a wider pattern to these cases that transcends any particular regional context or, to use a term of art in this domain, any espace juridique.

The jurisdictional scope of human rights treaties is at one level a narrow doctrinal issue. Yet at another it is a challenge to the human rights framework. As Marko notes, the human rights revolution is grounded in the ideal of universality. The idea that a state can do the same bad act in two different locations, and in only one will it violate its human rights treaty obligations, is in tension with that commitment to universality. And of course such a system creates perverse incentives to engage in bad acts offshore, as the use of Guantanamo Bay amply illustrates.

Still, treaties have jurisdictional clauses for a reason. When negotiating treaties, states seek to control or at least cabin the treaty’s ultimate impact on their behavior. Human rights treaties may well be strongly expressive in nature, but they are also regulatory, and states—at least those who believe these treaties must be complied with—endeavor to calibrate those commitments accordingly. Jurisdictional scope is central to that effort. So whatever the desire to push back against limiting principles, doing so can both violate the intent and expectation of the drafters and, given the dynamic nature of lawmaking, have unwanted impacts on future treaty negotiations.

Since space is short let me turn to a few big issues raised in the book. One is Marko’s interpretive prescription. He explores in depth the two main approaches to extraterritorial application—broadly, territorial and personal– and finds them both wanting. As he shows, a territorial approach pushes courts inexorably toward ever smaller definitions of relevant territory in order to ensure, at least in cases that present uncomfortable or shocking fact patterns, that justice is done. (Rather than a nation or region or city, perhaps the relevant territory over which a state exerts control is a facility or building. And so on.) An approach based on persons, by contrast, has no real limiting principle in practice: in Marko’s words, ultimately it cannot “be limited on the basis of any non-arbitrary criterion.”

His prescription is a third way: to distinguish between the duty of a state party to refrain from infringing the rights of individuals and the duty to secure or ensure the human rights of those individuals.  In other words, a distinction between negative and positive obligations. This approach seems reasonable and workable in practice, but of course the devil will be in details.

Marko has a second area of prescription, which turns on how courts generally adjudicate these questions. He wants courts to more clearly and forthrightly separate out jurisdiction and merits. This is a noble goal, perhaps. But it strikes me as hard to imagine much improvement in practice. Certainly US jurisprudence on the extraterritorial application of constitutional rights does not really do this—at least with regard to non-citizens, the framework recently handed down in Boumediene (and elaborated since in a few lower court decisions) makes functional considerations an essential part of the discussion over geographic application.  And this inevitably brings merits-like considerations into play.

The third big point I want to raise here is something that bookends the study: why have these issues of extraterritorial application arisen so frequently now, and so rarely in the past. Marko claims that this is not because of globalization or other changes in the international system. States, he says, have always “killed, detained, or otherwise mistreated people outside their territory.” Instead, he argues that it is the internalization of human rights norms and of the ideal of universality that have forced these issues to the surface.

There is something to this. But is it really true that the rash of cases on extraterritoriality is not connected to globalization or other macro-political changes? At the most basic level, 50 years ago it would have been much harder to run the CIA black site prisons in Eastern Europe, or to employ offsore bases to hold so many detainees brought from so many parts of the world. The ability to project power at a distance, and to move people to distant places, is plainly not the same as it was then.

The other obvious difference, encapsulated in these examples, is the nature of the contemporary asymmetric conflict and especially the highly contested contours of the contemporary battlefield. A conflict that seems to bleed over to many discrete locations that are neither subject to pervasive armed conflict nor are belligerently occupied makes the extraterritorial application questions far harder, but also far more pertinent.

In short, I think Marko is right to argue that there has been a sea change in thinking about human rights, and that has led to a greater number of cases involving extraterritorial rights claims. But there are material factors at play as well. It would be interesting to consider to what degree these two claims are linked; that is, to what degree both the rise of human rights consciousness and the ability or propensity to violate human rights offshore reflect larger changes in society of the sort we often label globalization or interdependence.

Extraterritorial Application of Human Rights Treaties: An Overview

by Marko Milanovic

I am very grateful for the opportunity to discuss my book on EJIL: Talk! and Opinio Juris, as am I grateful to the commentators on both blogs for taking the time to read and discuss it. In this introductory post I’ll try to outline the book’s main arguments and themes and my approach generally in analysing a very complex topic.

The book is divided into five chapters. The first, introductory chapter sets out the scope and purpose of the whole study. It defines the notion of the extraterritorial application of human rights treaties, explains that the law of treaties sets no general rules on extraterritorial application, and outlines the basic normative framework of the human rights treaties which are the object of the study, looking in particular at the various types of state jurisdiction clauses that one finds in these treaties, and their relationship with other relevant provisions, such as the colonial clauses. Whether a human rights treaty protects a particular individual in an extraterritorial context is legally a matter of treaty interpretation, and this chapter sets the stage for this interpretative exercise. My main focus is on treaties protecting civil and political rights, for the sole reason that there is much more case law and other material to work with in respect of these treaties than with those protecting socio-economic rights. That said, the book proceeds from the assumption that there is something to be gained from focusing on problems common to all or most human rights treaties, and views these treaties as a whole. Hence, it is generally structured thematically, issue by issue, not chronologically or treaty by treaty.

Of all the treaties, I give most attention to the European Convention on Human Rights, for two reasons. First, the ECHR system is by far the strongest of all human rights regimes (if far from perfect) in its ability to effectively secure compliance and have a direct impact on state policy. The stakes are highest in Strasbourg, because it will be listened to. Second, it is precisely because the stakes are highest in Strasbourg that the jurisprudence of the European Court of Human Rights on extraterritorial application is the richest and the most developed. At the same time, it is the most problematic, suffering from rampant casuistry and conceptual chaos. It is a jurisprudence of (at times quite unprincipled) compromise, caused mostly be the Court’s understandable desire to avoid the merits of legally and politically extremely difficult cases by relying on the preliminary issue of extraterritorial application. At the same time, the jurisprudence of the European Court has the most to teach us on questions of both law and policy that are relevant for all human rights treaties.

The second chapter tries to clear up some of the conceptual confusion in existing case law…

Junior International Law Scholars Association Annual Meeting

by Harlan Cohen

On February 10, 2012, the University of Georgia is going to have the honor of hosting the Annual Meeting of the Junior International Law Scholars Association (JILSA).  JILSA is a U.S.-based informal support network and community for untenured international law scholars.  With almost 200 scholars on the email list, JILSA facilitates syllabi exchanges, summer brown bags, and informal dinners and lunches at international law events.

JILSA also holds an annual meeting, the centerpiece of which is a paper workshop, in which junior scholars are given the opportunity to present and comment on works-in-progress in a safe, constructive environment.  (Prior agendas can be found here, here, and here.)  The meetings are among my favorite events of the year:  Aside from being a chance to meet and reconnect with terrific people (no small thing), the workshops have consistently been the deepest, most interesting, and most sophisticated of any I have seen.  I always come away amazed and humbled by the amazing group of scholars to which I belong.  I will be very sad when I graduate from the group this year.

I, for one, know that I am indebted to the group, which has provided me a community since entering the academy.  I specifically remember all the people I met at my first JILSA event, an informal dinner organized at the AALS-ASIL Meeting in Vancouver.  If you’re junior and interested in getting on the list, you can contact the current, amazing co-chairs, Molly Land, molly [dot] land [at] nyls [dot] edu, and Saira Mohamed, smohamed [at] law [dot] berkeley [dot] edu.  They can also provide you more information on the Annual Meeting and opportunities for juniors to present, comment, or get feedback on early-stage ideas.

International Law in Domestic Courts ASIL Interest Group Meeting

by Kenneth Anderson

Chimene Keitner asks us to pass along this announcement of the works-in-progress meeting of the International Law in Domestic Courts ASIL Interest Group meeting, at BYU on December 16, 2011.  It looks to be a very interesting set of papers, and the agenda and links are below the fold. Continue Reading…

Slowing Down “The Justice Cascade”

by Julian Ku

My general view is that critical book reviews are much more interesting than positive ones (unless it is of my own book, that is).  And so I read with great interest George Mason Law Professor Jeremy Rabkin’s takedown of Kathryn Sikkink’s new book “The Justice Cascade: How Human Rights Prosecutions are Changing World Politics.”  The Sikkink book argues, through an empirical study, that human rights prosecutions are having an important effect on changing international politics.  Rabkin’s criticism of the Sikkink “Justice Cascade” thesis, especially her choice of data and her odd method of counting, seems pretty powerful. Here is a small excerpt:

[Sikkink] offers “data” that purport to demonstrate that human rights prosecutions have been continuously increasing and generating worldwide improvements in the protection of human rights. One way she skews the data and her accompanying historical narratives is by starting her “count” (and her accounts) in the mid-1970s, when the collapse of authoritarian regimes in Greece and Portugal led to prosecutions of their top officials under the democratic governments that succeeded them. 

Sikkink’s choice of time period allows her to simply disregard the prosecutions of top officials in many European countries after World War II, such as the de Gaulle government’s swift prosecution of former President Philippe Pétain and his Vichy Prime Minister Pierre Laval. Further back, the restored Bourbon government had prosecuted some of Napoleon’s marshals, as the first French Republic had prosecuted the royal family and their top officials in the 1790s and as English rebels a century earlier had tried Charles I and members of his court. Even the attempted prosecution of President Bill Clinton, which took place in her restricted time period, disappears without a trace from Sikkink’s account. A look at earlier history would have reminded readers (or Sikkink) that such prosecutions have had their ups and downs in the past.

The second thing Sikkink does to make her cascade look more unstoppable is to gloss over the distinction between successor regimes trying their predecessors and outside states (or outside tribunals) asserting criminal jurisdiction over officials in other countries (for actions taken in those other countries). While the former is in no way a novelty of recent decades, the latter is very much so. It’s not that Sikkink is unaware of international factors. She traces one “stream” leading to her “cascade” back to the Nuremberg and Tokyo war crimes tribunals and another to international human rights treaties, “culminating”, she says, in the Statute of the International Criminal Court in 1998. But by her account, it all seems to have flowed into one common cascade in the new century.

Finally, Sikkink offers a data set based on a quite unusual way of counting. Instead of counting the number of convictions or even indictments, she counts the number of years in which human rights prosecutions were “ongoing” in each country. By this way of counting, de Gaulle’s swift reckoning with Vichy officials—which swept up several thousand collaborators—would count as a one or a two, while years of torpid legal fencing in Chilean courts, resulting in barely a handful of convictions, would count for ten times as much. Even then, to trust Sikkink’s data, you must rely on the tabulations of “human rights records” compiled by her research assistants from Amnesty International reports and other sources, whose reliability (or actual methodology) this volume does not assess. 

The review goes on to discuss, much more positively,  Ellen Lutz’s and Caitlin Reiger’s new book Prosecuting Heads of State.  But it is his critical take that stands out, and is worth considering.

Milanovic Book Symposium

by Kevin Jon Heller and Dapo Akande

Opinio Juris and EJIL: Talk! are happy to announce that over the next few days we will both be hosting a discussion of Marko Milanovic’s recently published book: Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford Univ Press).  Marko’s book examines the question when a State owes human rights obligations under a treaty to persons located outside its territory. This is a question on which there has been conflicting case law and much confusion.

This [book] attempts to clear up some of this confusion, and expose its real roots. It examines the notion of state jurisdiction in human rights treaties, and places it within the framework of international law. It is not limited to an inquiry into the semantic, ordinary meaning of the jurisdiction clauses in human rights treaties, nor even to their construction into workable legal concepts and rules. Rather, the interpretation of these treaties cannot be complete without examining their object and purpose, and the various policy considerations which influence states in their behaviour, and courts in their decision-making. The book thus exposes the tension between universality and effectiveness, which is itself the cause of methodological and conceptual inconsistency in the case law. Finally, the work elaborates on the several possible models of the treaties’ extraterritorial application. It offers not only a critical analysis of the existing case law, but explains the various options that are before courts and states in addressing these issues, as well as their policy implications.

A very distinguished group of scholars, from both sides of the Atlantic, will offer their views on Marko’s book and on this vexed question of extraterritorial application of human rights obligations.  On EJIL: Talk!, Yuval Shany (Hebrew University of Jerusalem), Vaughan Lowe (Oxford) and Irini Papanicolopulu (Milan-Bicoca and Oxford) will offer their views. On Opinio Juris, it will be Sarah Cleveland (Columbia), Kal Raustiala (UCLA) and OJ’s own Peggy McGuinness (St John’s). We are grateful to them for agreeing to participate in what I am sure will be a fascinating discussion.

The discussion will start with an introduction by Marko (on both blogs) of his book. Our commentators will weigh in with comments through the rest of this week.  Marko will respond to their comments early next week. Readers are invited to join in the discussion.

Fatou Bensouda, The Next Prosecutor of the ICC

by Kevin Jon Heller

It’s official — or almost is, to be completely accurate.  Mark Kersten first reported the news at Justice in Conflict, and a Reuters story has now confirmed it.  On December 12, Fatou Bensouda will become the next ICC Prosecutor:

An informal meeting of ICC members will be held in New York on Thursday to discuss the appointment, said Liechtenstein’s U.N. Ambassador Christian Wenaweser, president of the Assembly of States Parties (ASP) to the Rome Statute that set up the court.

“I will recommend to the meeting that, based on my consultations, we go forward with a single candidate, Fatou Bensouda,” Wenaweser told Reuters by telephone.

The appointment will be made at a formal session of the 118-nation ASP in New York on December 12, Wenaweser said.

Readers already know that I think Bensouda will make a superb Prosecutor.  I do want to take (mild) issue with Mark’s claim that “[h]er selection would thus appear to confirm the desire among states parties to select someone who will be more of a ‘secretary’ than a ‘general’ – a prosecutor who won’t ruffle as many feathers.”  I think it’s true that Bensouda will not make headlines for all the wrong reasons and will avoid needlessly alienating governments and NGOs (and everyone else).  But I think it’s wrong to suggest (and Mark will no doubt correct me if I’m reading him wrong) that Bensouda will avoid taking on powerful interests to avoid controversy; from what I know about her, she’ll do what she believes is right no matter how many feathers get ruffled. So if states think they are getting a shrinking violet, they’re bound for serious disappointment.

Congratulations to Fatou Bensouda.  And more importantly, congratulations to the ICC.