Archive for
March, 2012

Quotable Quotes from the ASIL Annual Meeting

by Roger Alford

Here are some choice quotes from the ASIL annual meeting, all taken out of context for maximum effect:

The real problem with cyber-security is that Viagra is too expensive.

~ Christopher Soghoian

International arbitration is like a Jackson Pollock painting. There is order, but it takes an expert in fractal geometry to see it.

~ Stephan Schill

These missiles are incredibly cheap, only $60,000 a piece, which is why I have recommended to ASIL that they buy some with your annual dues.

~ Rosa Brooks

My favorite investment arbitration case was the one brought by a man who had his wallet stolen in a Mexican jail and demanded justice before the U.S.-Mexican Claims Commission.

~ Jennifer Thornton

For all of you in the audience who are directly involved in the Chevron-Ecuador case, please don’t attach my house.

~ Ralph Steinhardt

If I can leave you with one message it would be this: Never, ever cite geographic coordinates without a reference datum.

~ Martin Pratt

The problem with war is that it is never humane. It always involves real people. Even soldiers are people.

~ Louise Doswald-Beck

Inter-American Court of Human Rights Recognizes Discrimination on Basis of Sexual Orientation

by Kenneth Anderson

The Inter-American Court of Human Rights for the first time has recognized unlawful discrimination on the basis of sexual orientation, in a decision released two weeks ago, Atala v. Chile (here is the decision, in Spanish).  Congratulations to Macarena Saez, a Chilean lawyer who teaches at my school (Washington College of Law, American University), for leading a team of public interest lawyers to achieve this decision.  As WCL’s associate dean, Mary Clark, summarizes:

[T]he Atala v. Chile decision marks the first time that the Inter American Court has recognized discrimination on the basis of sexual orientation. This case began in 2004 when the Chilean Supreme Court denied Judge Karen Atala the custody of her three minor children because she was living with her lesbian partner. Macarena and her team of attorneys from Public Liberties (an association of Chilean attorneys) took the case to the Inter American Commission of Human Rights and, last year, the case made it to the Inter American Court of Human Rights. Macarena argued the case before both the Commission and the Court.

It was a long battle, but the case has come to a very successful end, with a decision that declares sexual orientation a condition protected by the American Convention on Human Rights. The decision also declares that all individuals regardless of sexual orientation enjoy the right to family. Finally, it declares that the best interest of the child cannot be used as an excuse to discriminate on the basis of sexual orientation.

Weekend Roundup: March 24-30, 2012

by An Hertogen

This week many of our readers will have attended ASIL’s 106th Annual Meeting. If you weren’t in Washington DC, we brought you Harold Hongju Koh’s statement regarding Syria (with the possibility to comment here). Deborah Pearlstein drew conclusions for further research from the panel on international humanitarian law and international human rights law. Via ASIL Cables, you could also read Joanne Mariner’s summary of the 2012 Grotius Lecture and Tai-Heng Cheng’s interview with James Crawford.

In the wake of the Supreme Court’s decision in Kiobel to reopen the argument on the issue of extraterritoriality, we had a series of guest posts on the ATS and extraterritoriality. Eugene Kontorovich noticed how the ATS arguments make for strange bedfellows. He also pointed out how the real issue in Kiobel is universality, rather than extraterritoriality. Universality, he then argued, is a constitutional question. Anthony Colangelo built on a previous post and addressed three related questions on universal civil jurisdiction and choice of law. On the topic of universal civil jurisdiction, Eugene Kontorovich also posted about a Dutch decision awarding damages to a Palestinian, residing in the Netherlands, against Libyan officials for torture that took place in Libya. Thomas Lee’s guest post examined the ATS’ history and argued that the ATS has nothing to do with universal jurisdiction, but “provides a right of action and original jurisdiction in federal district court to aliens injured under circumstances implicating U.S. sovereign responsibility”. The passage of the Canadian Justice for Victims of Terrorism Act prompted Julian Ku to argue that this Act is better than and different from the ATS.

Doug Cassel and Kevin Jon Heller continued last week’s debate on the legal tactics of Chevron and its opponents in Ecuador. Kevin also posted about other legal and environmental problems facing Chevron.

Ken Anderson announced his book Living with the UN: American Responsibilities and International Order and explained why he chose to publish it with the Hoover Institution PressKen also drew our attention to Matthew Waxman’s recent article “National Security in the Age of Terror”. Via Lawfare, he brought us a quote from a Washington Post article on the CIA’s enigmatic “Roger”.

Kevin Jon Heller quoted from a Guardian article on the destruction of solar panels in the West Bank. He also discussed Thravalos’ guest post on Lawfare on the question whether conspiracy is a war crime, and referred to Dawood Ismail Ahmed’s article in Foreign Policy questioning why successive Pakistani governments have not taken any legal steps to challenge the legality of drone attacks within Pakistani territory under international law.

Peter Spiro discussed how the “political question” doctrine took a hit in the Supreme Court’s decision to send the Jerusalem passport case back to the lower court for resolution on the merits. Peter also considered whether the UK could legally strip Asma al-Assad from her British citizenship.

Julian Ku argued that Dominique Strauss-Kahn’s claim of diplomatic immunity based on customary international law to dismiss the civil lawsuit by the Sofitel hotel maid against him has little chance of success.

In a follow-up to the symposium earlier this month on the latest issue of the NYU Journal of International Law and Policy, four comments were posted to Ryan Goodman’s article Asylum and the Concealment of Sexual Orientation.

Readers in New York City might be interested in an event on The ACLU in American life, on Tuesday, April 3 at Cardozo, featuring Opinio Juris’ own Deborah Pearlstein. And, if you are in the UK on May 19-20, you may be interested in attending the inaugural conference of the Cambridge Journal of International and Comparative Law.

Have a nice weekend!

ASIL on the IHL/IHRL Debate

by Deborah Pearlstein

Had the chance to catch at least one panel at yesterday’s jam-packed annual meeting of the American Society of International Law. Happy to say, it was a good one, and timely: “International Human Rights Law, International Humanitarian Law, and the Implications for Coalition Warfare.” Ashley Deeks moderated, giving a summary of the ECHR’s latest jurisprudence in the area (informative and succinct), followed by former UK legal adviser Daniel Bethlehem, who led off with a terrific précis of the many questions in the field. The panelists all seemed to have a clear, and I think accurate, sense of the cultural lay of the land here. Two points in particular I think now pretty clearly rise to the level of consensus. (To be clear, my metric for consensus is that I took all of the panelists at this particular session to agree, or at least not to disagree; that I myself agree; and that several other thoughtful scholars/practitioners in the field I’ve encountered at other meetings, civilian and military, would tend to agree as well. In short, totally anecdotal.)

First, there’s an enormous amount of scholarship, and a growing amount of case law, that purports to shed light on the relationship between IHRL and IHL, but in fact terribly little of it does the actual provision-by-provision work of analyzing how one might rationally interpret the ICCPR prohibition against “arbitrary” detention as informed by the law-of-war rules for what counts as arbitrary or not. Second, that there is an enormous amount of fear/loathing (my terms, not theirs…. ok, Hunter Thompson’s, not mine) informing the debate on both sides of the divide. Militaries are leery of acknowledging any role for IHRL for fear that admitting the nose will allow the entire IHRL camel under the tent. IHRL scholars/ advocates reject the characterization of much of, for example, U.S. counterterrorism activity as “armed conflict” in any sense, so reject the idea that IHL be understood in any way to compromise the full protection of IHRL.

That leaves us, I think by perhaps necessary implication, with the conclusion that if we had a bit more of the former – point by point analysis – we’d have a bit less of the latter – fear and loathing. Seems at the least to set out a pretty clear agenda for scholars in the field at the very least.

ASIL Cables: Interview with James Crawford

by An Hertogen

Recent guest-poster, Professor Tai-Heng Cheng, has an interview on ASIL Cables with Professor James Crawford, this year’s recipient of the Manley O. Hudson Medal:

Tai-Heng Cheng (THC): Congratulations on receiving the Manley O Hudson medal, Professor Crawford.  Your many accomplishments are well known to our members, and I was wondering what achievements in your career have you found most meaningful?

James Crawford (JC): Thank you.  There have been too many moments to mention them all, but perhaps there are a few that stand out.  There was my time on the Australian Law Reform Commission in the 1980s when I worked on indigenous rights, admiralty and state immunity – quite a mixture.  I have a special place in my memory for my first case before the International Court of Justice, Certain Phosphate Lands in Nauru, in which I acted alongside Ian Brownlie representing the Republic of Nauru. Another case before the Court which stands out for me was the Gabčikovo-Nagymaros Project decision, which was my first lead in the Court.  Serving as Special Rapporteur on State Responsibility in the years leading to the adoption of the International Law Commission’s Articles on State Responsibility, was a particular highlight.  Latterly I’ve enjoyed working with terrific teams on cases for Colombia and Costa Rica, among others.  And a recent intense effort was the 8th edition of Brownlie’s Principles, which comes out in August.

THC:  Looking back at the evolution of international law since 1945, what are some of the most significant developments?

JC:  The most obvious developments have probably been in connection with the evolving position of the individual under international law – in the fields of international criminal law and international human rights law particularly.  Both of these fields were embryonic in the years following World War II and have since expanded exponentially.  Related to this is the development of investor-state arbitrations, with private entities bringing growing numbers of disputes against foreign states directly under bilateral and multilateral investment treaties, without needing to rely on diplomatic protection.  Our understanding of self-determination under international law has also changed since 1945, when it was primarily associated with decolonisation and the formation of new states, whereas it has since developed into a wider notion encompassing the ongoing guarantee of fundamental human rights and democratic accountability within existing states.  Some see these changes as an erosion of state sovereignty, but I would argue that sovereignty remains very much the foundation of our system of international law, and that the notion of sovereignty is flexible enough to accommodate modifications without collapsing altogether. Continue Reading…

Statement Regarding Syria

by Harold Hongju Koh

[Harold Hongju Koh is the Legal Adviser, U.S. Department of State.]

Statement Regarding Syria
Harold Hongju Koh
Legal Adviser, U.S. Department of State
American Society of International Law Annual Meeting
March 30, 2012

It is my honor to speak here again at the annual meeting of the American Society of International Law.  A year ago, I spoke before this audience about the international legal basis for the United States’ military operations in Libya.  In that same spirit of openness and dialogue, I am grateful for the opportunity to engage so many distinguished international lawyers in this room about the very serious challenges we face in Syria today.

Let me divide my comments this morning into three:  First, what, precisely, is happening in Syria?  Second, what are the U.S. government and the international lawyers within it doing to address the crisis?  And third, by what legal principles should this crisis be assessed and lawfully and effectively addressed?

[Continue reading the speech after the jump. There is also a comment thread.]

Comment Thread to Legal Adviser Harold Koh’s Statement on Syria

by Chris Borgen

We thank Legal Adviser Harold Koh for guest posting the statement on Syria that he delivered earlier today at the American Society of International Law Annual Meeting.  As this posting is a release of a speech text and Legal Adviser Koh will not be online to respond to comments, we at OJ didn’t place a comment thread under the released text. However, we open the following comment thread to encourage discussion of the speech.

Weekday News Wrap: Friday, March 30, 2012

by An Hertogen

  • At their fourth summit in New Delhi, the BRICS leaders established a high level working group to examine the creation of their own development bank. One commentator questions the feasibility and argues that it may result in a dilution of influence at the World Bank. The BRICS’ Delhi Declaration confirms the primary role of the G20, which will be presided by Russia in 2013, to “facilitate enhanced macroeconomic coordination”, and calls for a reform of the IMF, the World Bank and the UN to make these organizations more representative.
  • The World Bank Board will conduct interviews with the three candidates for World Bank President between April 9-11; a decision is expected to be announced on April 11. Meanwhile the US is stepping up its lobbying efforts to gain support for its candidate Dr. Jim Young Kim.
  • The renovation of the UN Headquarters in New York is dealing with major cost overruns.
  • Australia has completed an assessment of the effectiveness of 42 multilateral organizations through which it distributes one third of its foreign aid budget. Although the World Bank scores highly, four UN agencies were amongst those scoring poorly.
  • In their fight to protect their right to consultations and free, prior and informed consent, under the Argentinian constitution and International Labour Organisation (ILO) Convention 169 concerning indigenous and tribal peoples, representatives of indigenous communities were heard by the Argentinian Supreme Court in a case about lithium mining under the salt flats the indigenous communities claim as their ancestral land.
  • France arrests 19 suspected Islamists in dawn raids across the country. Although those arrested are not directly linked to Mohamed Merah, the operation is part of a crackdown imposed in the aftermath of his killing spree between 11 and 19 March.
  • Aung San Suu Kyi alleges irregularities in the lead up to Sunday’s elections in Myanmar.
  • Israel closes of the West Bank in anticipation of the annual Land Day rallies.
  • Apple and its main manufacturer Foxconn have agreed on standards for wages and working conditions after an investigation by the Fair Labor Association, although some workers are reportedly unhappy about the limits on overtime.
  • The US is reportedly preparing a request for the establishment of a compliance panel to assess whether the EU has complied with the Appellate Body’s ruling in EC-Airbus which could lead to the authorization of retaliation measures.

Inaugural Cambridge Journal of International and Comparative Law Conference: May 19-20, 2012

by An Hertogen

Our friends at the Cambridge Journal of International and Comparative Law are pleased to announce that at their upcoming conference – “Agents of Change: The Individual as a Participant in the Legal Process” – on 19 and 20 May 2012 there will now be two keynote addresses by:


Other highlights include a welcoming address by SIR ELIHU LAUTERPACHT CBE QC and a special talk by PROFESSOR SANDS QC.

In addition, the Journal will be launching its first two issues at the conference and every delegate will receive a complimentary copy.

Do not miss this monumental and historic occasion: a chance to listen to stimulating and revered speakers, engage in interesting and thought-provoking debate and to take home the inaugural issues of the Cambridge Journal of International and Comparative Law.

For a full programme of events and to register, visit the CJICL’s website. Book before April 1, 2012 to take advantage of the early-bird discount.

Ahmed on Drone Attacks in Pakistan

by Kevin Jon Heller

Dawood Ismail Ahmed, a Pakistani lawyer and JSD candidate at the University of Chicago, has a very interesting article today at Foreign Policy on Pakistan’s opposition to drone strikes.  He argues that if Pakistan really wants to put an end to the strikes, which have killed hundreds of innocent Pakistani civilians, it needs to start taking advantage of its options under international law.  Here is a taste:

[W]hy, despite all the noise about sovereignty in the eight years since the first drone strike in 2004, have two successive Pakistani governments, military and civilian, failed to hire a single lawyer to challenge drone strikes within the United Nations, a foreign court or even a local Pakistani court? To be sure, the government could argue that it is not completely ineffective against the drone attacks: it did recently close Shamsi air base to protest against the NATO strikes that killed Pakistani soldiers. It could also provide a few superficial defenses to justify inaction: Pakistan is a poor country and therefore cannot afford to engage international lawyers or organizations or that any such action will be futile in the face of U.S. hegemony. However, neither alibi can withstand scrutiny.

Pakistan has routinely employed resources on international legal matters when there is political will to do so. In 1999, Pakistan submitted a dispute to the International Court of Justice against India regarding an airspace incident. In 2009, Pakistan proposed a resolution at the U.N. Human Rights Council to prevent “defamation of religion” or blasphemy. Last year, Pakistan sought to engage the International Court of Justice in another dispute against India concerning water rights. And Pakistan, over the years, has invested significant resources to highlight the Kashmir problem at the U.N.

In fact, the Pakistani government does not even need to expend much money to raise the issue of drone strikes. A number of Pakistani lawyers are well versed in international law. Lawyers often take up cases pro bono and submit amicus briefs in support of a country’s case without charge. In fact, international human rights NGO’s working with local Pakistani lawyers; most notably, the British charity Reprieve, has been providing legal representation to civilian victims and commenced litigation against the British Foreign Secretary for assisting drone strikes.

Similarly, the argument that international legal discourse would be futile in constraining use of force by a superpower is equally unpersuasive. Any minimally competent government knows how international law can be utilized to decisively engage in “lawfare”, that is to challenge stronger opponents on the basis of legal argument.

It’s refreshing to see the word “lawfare” put in quotes.  Conservatives have done a masterful job turning the word into an epithet, even though nothing could be further from the truth.  Using the law to promote human rights and put an end to violence is an act to be celebrated, not condemned.

Canada’s Much Better and Very Different Alien Tort Statute

by Julian Ku

Over at EJIL Talk!, Professors Joanna Harrington and Rene Provost note the passage of what Provost has dubbed “Canada’s Alien Tort Statute.”

As for the details, the new Canadian law will now allow Canadian citizens and permanent residents of Canada who are victims of terrorism, as well as others if the action has a real and substantial connection to Canada, to seek redress by way of a civil action for terrorist acts committed anywhere in the world on or after 1 January 1985.

With all due respect to Professor Provost, this does not sound like the U.S. Alien Tort Statute at all. How is it different?

Follow-up to NYU JILP Symposium on LGBT Asylum and Refugee Law

by NYU Journal of International Law and Politics

In response to the online symposium on LGBT asylum and refugee law held two weeks ago by the NYU Journal of International Law & Politics and Opinio Juris, the Journal received several additional pieces of commentary. The contributions below specifically tie to Professor Ryan Goodman’s article, Asylum and the Concealment of Sexual Orientation, which also appears in issue 44:2:

“To counteract some of these concerns, [Hathaway & Pobjoy] place great faith in international human rights and anti-discrimination law pertaining to LGBT rights to constrain decision-makers’ reliance on their own subjectimve understandings of sexuality.  However, it is unclear that international law can bear such a weight in this particular context.” Goodman, 44 N.Y.U. J. Int’l. L. & Pol. 407, at 441 (2012):

Thank you again to Opinio Juris for its critical support on this important issue, and also to all of the authors.  Below are four new contributions to the dialogue by:


Continue Reading…

ASIL Cables: 2012 Grotius Lecture

by An Hertogen

Our friends at ASIL Cables have posted Joanne Mariner‘s summary of the yesterday’s 2012 Grotius Lecture at the ASIL’s 106th Annual Meeting:

Jakob Kellenberger, the President of the International Committee of the Red Cross (ICRC), kicked off ASIL’s 106th Annual Meeting with a stirring reaffirmation of the value of international law.  Delivering the Grotius Lecture on the meeting’s opening day, Kellenberger spoke of the role of international humanitarian law—the law of war—in reducing the harms caused by armed conflict. While acknowledging that international humanitarian law cannot by itself end wartime suffering, he insisted that its observance in armed conflict can go far to preserve human dignity, protect the vulnerable, and limit the horrors associated with war.

As a prelude to Kellenberger’s speech, ASIL Executive Council member William H. Taft IV awarded Kellenberger ASIL’s Honorary Member Award, an annual award given to non-U.S. citizens who have made distinguished contributions in the field of international law. Taft’s introductory remarks set the stage, perhaps inadvertently, for the most memorable and emphatically-stated passage in Kellenberger’s speech.  Having served as State Department Legal Adviser during President George W. Bush’s first term, Taft commended Kellenberger for his insistence that the Geneva Conventions be respected “in the conflict with Al Qaeda and other terrorist groups.”  (Taft himself had been on the losing end of a struggle within the administration over whether Geneva Convention protections applied to Taliban and Al Qaeda members captured in Afghanistan.)

Taft’s references to the “conflict with Al Qaeda”—a phrase he used twice—reflect the view, which the present U.S. administration shares, that the United States is engaged in an armed conflict with Al Qaeda that is not limited to the current fighting in Afghanistan. It is this posited armed conflict that the United States relies upon in justifying drone strikes in Yemen, indefinite detention at Guantanamo, and the use of military tribunals to try suspected terrorists like Khalid Sheikh Mohammed and Abd al-Rahim al-Nashiri. Continue Reading…

Weekday News Wrap: Thursday, March 29, 2012

by An Hertogen

Can DSK Invoke Customary International Law to Dismiss His Civil Lawsuit? Probably Not

by Julian Ku

From all I’ve read, there is very little chance that a NY court will dismiss a civil lawsuit against former IMF chief Dominique Strauss-Kahn on the grounds that he enjoys diplomatic immunity.  I don’t have the papers, but the description of his argument goes like this:

Amit Mehta, one of Strauss-Kahn’s lawyers, said his client’s diplomatic immunity flowed from a 1947 United Nations convention that grants the heads of certain specialized agencies diplomatic immunity, regardless of whether they acted in an official capacity when the alleged harm occurred.

While the U.S. has never signed onto the convention, Mehta said it has achieved what is known as “customary international law” status, which means it must be honored even by countries that have not explicitly ratified it.

“The fact that the U.S. is not a signatory to the convention does not mean it should not apply,” Mehta told the court.

My guess is the judge will assume that DSK does have immunity under customary international law, but that DSK waived it by failing to invoke it properly. Or that DSK’s acts were not within the scope of any immunity he might have (as Prof. Chimene Keitner argues here). Or that DSK can’t get the immunity unless the IMF invokes it for him.   This will avoid the question of whether it really is a rule of customary law that heads of international agencies get diplomatic immunity. And whether if it is a rule of customary law, whether it is applicable in a NY court.

And what if there is an appeal?  Assuming that this is some sort of federal common law (a view to which I reluctantly concede), could there be some attempt to remove the case to federal court? Or is this question already settled by the various US statutes in the area? I doubt it, since DSK could have removed to federal court on alienage grounds alone, and hasn’t done so.

The silence of the State Department in this case is not surprising, but it is a shame since it would have offered the NY court an easy way out of this issue. Indeed, it would be nice to know whether the U.S. government believes the relevant convention for “specialized agencies” has achieved the status of customary international law.  It seems that there is some authority in favor of that proposition, although the scope of such immunity is uncertain.

As a strategic matter, though, DSK’s lawyers probably will fight this as far as they can, and try to drag out this argument, which could only be to the benefit of their client (who has other more serious legal troubles, it seems).

This Month (Or So) in Chevron

by Kevin Jon Heller

With all of the attention we are devoting on Opinio Juris to Chevron’s “rainforest Chernobyl” in Ecuador, it’s important not to forget that Chevron’s human and environmental destruction extends far beyond Ecuador’s borders.  Here are few of its other activities over the past month or so:

1. Five Chevron executives have been forbidden to leave Indonesia because of a remediation project between 2003 and 2011 that the Indonesian government considers fictitious.  (Sound familiar?)

2. Brazil has indicted a number of Chevron executives in connection with a significant oil leak off the coast of Rio de Janeiro.  The indictment follows the filing of an $11 billion civil suit against the company for damage caused by the leak.

3. Chevron continues to deal with the fallout from an explosion at one of its oil rigs in Nigeria, which killed two people and injured many more.

4. Chevron continues to try to clean up an oil spill from one of its refineries in Pascagoula, Mississippi.

5. Chevron is being sued by wealthy residents of Salt Lake City for damage caused by a series of ruptures in one of its oil pipelines.

It’s not all bad news, though.  Chevron has demanded that the Federal Energy Regulatory Commission prevent Spectra Energy from building a natural-gas pipeline across Bayonne, New Jersey, arguing that the pipeline carries “significant risk of profound environmental damage.”

Of course, Chevron doesn’t actually oppose the pipeline.  It just doesn’t want it built across that particular stretch of land — which is owned by Chevron/Texaco.

Upcoming Event: The ACLU in American Life

by An Hertogen

Our readers may find the following event, featuring Opinio Juris‘ Deborah Pearlstein, of interest:

The New York Lawyer Chapter and Benjamin N. Cardozo School of Law Student Chapter of the American Constitution Society, and Floersheimer Center for Constitutional Democracy present:

The ACLU in American Life


  • Adam Liptak, Supreme Court Correspondent, The New York Times
  • Heather Mac Donald, John M. Olin Fellow, Manhattan Institute for Policy Research
  • Theodore B. Olson, Partner, Gibson, Dunn & Crutcher LLP; Former United States Solicitor General
  • Deborah Pearlstein, Assistant Professor of Law, Benjamin N. Cardozo School of Law
  • Anthony D. Romero, Executive Director, American Civil Liberties Union
  • Steven R. Shapiro, Legal Director, American Civil Liberties Union; Lecturer-in-Law, Columbia Law School

Moderated by:

  • Jeffrey Brown, Senior Correspondent, PBS Newshour

Through litigation and public education, the ACLU is constantly engaged in national debate over issues such as national security, public safety, freedom of thought, civil rights, reproductive rights, academic freedom and same sex marriage. This highly accomplished panel will explore controversial topics that are signature issues for the ACLU and will be prominent this election year.

Tuesday, April 3, 2012

6:00 p.m. – 8:00 p.m.

Benjamin N. Cardozo School of Law

Jacob Burns Moot Court Room

55 Fifth Avenue

New York, NY


RSVPs are required to attend this event.  Please email floersheimercenter [at] gmail [dot] com.

This event is free and open to the public.

Benjamin N. Cardozo School of Law students are not required to RSVP.

The “American Tort” Interpretation of the Alien Tort Statute

by Thomas Lee

[Thomas H. Lee is the Leitner Family Professor of Law at Fordham Law School and a Visiting Professor of Law at Harvard Law School in 2012-13.]

The Alien Tort Statute (ATS), 28 U.S. C. §1350, says that an alien may sue in federal district court “for a tort only, committed in violation of the law of nations or a treaty of the United States.” The U.S. Supreme Court recently asked for briefing on the question “whether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” Implicit in the question is a seeming concession: an alien tort occurring within foreign sovereign territory is still cognizable under the ATS if the alien plaintiff alleges violation of a U.S. treaty, such as the United Nations Convention Against Torture (CAT). For instance, if an alien alleges torture against another alien in a foreign country, then presumably the claim would be actionable under the ATS, despite the fact that both plaintiff and tortfeasor are aliens and the tort occurred in the territory of a foreign sovereign. In this limited sense (where a ratified treaty may be pled), even the Supreme Court seems to acknowledge a “universal jurisdiction” angle to the ATS.

In an article I published in 2006 in the Columbia Law Review, I stated the view that the Alien Tort Statute had nothing to do with universal jurisdiction; it was, I argued, a pragmatic measure enacted by the First Congress in September 1789 to let aliens sue in the federal district courts for money damages in the event of harm to their persons or property when the United States had expressly or implicitly promised the aliens that no such harm would come to them. The ATS both provides a right of action and original jurisdiction in federal district court to aliens injured under circumstances implicating U.S. sovereign responsibility; it is therefore a federal law for purposes of Article III arising-under jurisdiction. Translated to a modern context, the ATS would plausibly be available to “extraterritorial” tort actions by alien detainees at Guantanamo Bay, and non-combatant aliens harmed in Afghanistan, Pakistan, or Yemen in the current war on terror. Such actions would be subject to immunities under the Federal Tort Claims Act, an after-enacted statute, with respect to most U.S. official defendants. And so the answer to the Supreme Court’s question about the extraterritorial application of the ATS is “whenever there is a tort occurring in the territory of a foreign sovereign the commission of which was the result of U.S. sovereign action or inaction when the United States had a duty under international law to prevent the injury to the alien plaintiff.” Continue Reading…

Kiobel (IV): Precedent-setting Dutch Civil Universal Jurisdiction Case

by Eugene Kontorovich

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law]

One of the peculiarities of the Alien Tort Statute is its mix of cosmopolitan conceptions of justice with American exceptionalism. Under the ATS the U.S. has been the only nation in the world allowing for universal jurisdiction (“UJ”) in civil suits. So while enforcing international law has been the justification for these suits, it has been a mode of enforcement otherwise unseen around the world.

That changed a tiny bit today with a precedent-setting decision in the Netherlands, that awarded damages in a civil suit brought by a Palestinian man against Libyan officials for torture that took place in Libya – the notorious and bizarre fraudulent persecution of foreign medical workers for infecting patients with AIDS. (And this is when Qaddafi could still be seen in polite company.)

So what does this ruling mean for the ATS, and particularly the extraterritoriality issue to be argued in Kiobel? At first, it would seem to bolster the plaintiff’s case, by making civil UJ seem (very marginally) less anomalous. But it also cuts the other way, perhaps more strongly. The argument that there is no other forum where these serious wrongs can be redressed has underpinned broad notions of the ATS, both with regards to UJ extraterritoriality and corporate liability. Now, the danger of “impunity” has abated. Now a federal judge must now ask in a UJ ATS case – why wasn’t it brought in the Netherlands? What if the Netherlands is actually physically closer to the conduct (as in Kiobel)? Isn’t the Netherlands where all the international lawyers are? Does plaintiff’s presumptive choice of forum apply to UJ cases?

ICRC-ASIL-WCL Conference on Challenges of IHL Today

by Kenneth Anderson

If you are already in DC for the ASIL meetings and have some free time today (Wednesday), you might consider coming out to the edges of DC – to Washington College of Law, American University – for a conference sponsored by the ICRC, ASIL’s Lieber Society (the laws of armed conflict interest section), and the Center for Human Rights and Humanitarian Law at WCL.  The conference runs all day long, with a 12:30 keynote by Diane Orentlicher, longtime professor and advocate on human rights and most recently deputy for war crimes issues at the Department of State.  (I’ll be on a panel in the afternoon on cyber war and IHL.)  I should have posted on this ages ago, but if you’re interested go to the website and register; it’s not really far from the ASIL hotel and it is over by 3:30, in time to be back for the Grotius Lecture at the ASIL meetings.

Weekday News Wrap: Wednesday, March 28, 2012

by An Hertogen

  • Syrian President Bashar al-Assad has reportedly accepted Kofi Annan’s six points peace plan, but the US Ambassador to Syria expressed skepticism that Assad’s words would translate into deeds.
  • Navi Pillay has told the BBC that the Syrian forces are targeting children.
  • UN estimates put the civilian death toll in Syria at over 9000.
  • Iran announces that it will hold nuclear talks with the P5 and Germany on April 13, possibly in Istanbul, although the EU’s High Representative for Foreign Affairs and Security Policy, Catherine Ashton, and the IAEA said up to Tuesday that no date or venue had yet been agreed.
  • South Sudan claims that Khartoum has bombed the border regions, and Khartoum claims to have recaptured oil fields.
  • ECOWAS has suspended Mali and will send a military delegation to Bamako to urge the coup leaders to return the country to democratic rule.
  • Ireland will hold a referendum on the EU Fiscal Treaty on 31 May.
  • The Home Affairs and Civil Liberties Committee of the European Parliament agreed to sharing Passenger Name Records with the US Department of Homeland Security. Members reported that they felt pressured to vote in favour to avoid a suspension of visa-free travel to the US. The European Parliament will vote on the measure on 19 April.
  • BRICS’ countries are reportedly considering the creation of their own development bank to rival the World Bank and the Asian Development Bank.
  • Meanwhile, the campaign for the new World Bank president continues in full swing. Dr. Okonko-Iweale’s vision for the World Bank is discussed here, Jose Antonio Ocampo expects to receive the support of the Latin American and Caribbean nations and former candidate Prof. Sachs explains why he supports Jim Kim’s candidacy.
  • The WTO is holding a two day seminar on Exchange Rates and Trade.

Chevron’s Buyers Remorse

by Kevin Jon Heller

I am not going to respond in depth to Professor Cassel’s recent post on Chevron’s responsibility for the “rainforest Chernobyl” caused by its predecessor’s dumping of million gallons of crude oil and billion gallons of toxic waste into the Ecuadorian rainforest.  The plaintiffs’ attorneys have prepared a lengthy and thoroughly footnoted reply to his open letter; interested readers can find it here. I do, however, want to mention a couple of things.

First, I want to apologize for describing Professor Cassel as an “advocate for Chevron,” which he considers an ad hominem attack.  I have to admit, I don’t understand what is ad hominem about the description; after all, Black’s Law Dictionary defines an advocate as “a person who assists, defends, pleads, or prosecutors for another.”  Personally, I don’t consider “advocate” to be an epithet; I regularly referred to myself as an advocate for Radovan Karadzic, and all of my work was pro bono.  But my goal was not to offend Professor Cassel.

Second, I want to thank Professor Cassel for acknowledging his relationship with Chevron in the body of his post on Opinio Juris.  As I said before, I do not think that we should disregard his opinions on the case simply because he received money from Chevron to write a brief on its behalf.  I was simply concerned that less-interested readers might not find Professor Cassel’s disclosure on their own, given that it came on page four of a letter to which he linked in the post.

Third, I also want to thank Professor Cassel for providing links to material supporting the majority of his claims.  Unlike his previous post, which did not contain any such links, readers can now look at the underlying material and judge for themselves which of us has the better of the argument.  I would note, though, that many of the links are to Chevron’s own materials and legal briefs, which is no different than what I did in my post — a practice that Professor Cassel found objectionable when I did it. I would also note that the “press statements by plaintiffs’ PR operatives” to which I linked each contained extensive links to the primary material relied upon by the plaintiffs, which allowed readers to judge the merits of the plaintiffs’ claims for themselves.

Finally, I think it’s important to remind readers that there is one reason, and one reason only, that this case was heard before an Ecuadorian court: because that is what Chevron wanted.  Indeed, the company filed numerous different affidavits in U.S. federal court attesting to the fairness of the Ecuadorian court system — a system in which Chevron had often won lawsuits.  Now that it has lost the case and suffered a large but eminently fair judgment against it, Chevron has suddenly discovered that the Ecuadorian court system is somehow hopelessly corrupt.  A clearer case of buyers remorse is difficult to imagine.  Unfortunately for Chevron, buyers remorse is not a legal defense.

Make no mistake: this is a case that pits David against Goliath.  Only now Goliath is claiming that he is actually smaller than David and that David stole the slingshot he used during the fight.

Taming Globalization Book Tour Kicks Off in NYC

by Julian Ku

John Yoo and I will be discussing our new book, Taming Globalization, tomorrow night, Wednesday, March 28, 2012 from 6-8 p.m., at the The New York Athletic Club, 180 Central Park South New York, New York in an event hosted by the Federalist Society.  Anyone who is interested is welcome to attend!

For those of you on Long Island (and I know there must be at least a couple out there) we are holding a similar event at Hofstra Law School, Room 308 on Thursday, March 29 from 6-8 p.m.

Chevron in Ecuador: Doug Cassel Responds to Kevin Jon Heller

by Doug Cassel

[Doug Cassel is Professor of Law at Notre Dame Law School]

Heller’s reply misses the point of my post, Suing Chevron in Ecuador: Do the Ends Justify the Means? I did not ask whether Chevron is an “innocent victim.” I asked whether the ends pursued by plaintiffs’ lawyers (environmental remediation) justify their means (making covert payments to the court’s “independent” expert from their “secret account,” writing his report and then lying about it, meeting secretly with the judge in an abandoned warehouse, etc.).

I answered, “No.” Human rights lawyers cannot vindicate rights by trashing the rights to due process and fair trial. Doing so undermines our moral and professional credibility.

I hold that view as a career human rights lawyer, not (in Heller’s ad hominem) as an “advocate for Chevron.” My post linked to my longer open letter, which made explicit that I billed Chevron for representing it on an amicus brief, but not for the time entailed in writing the open letter.

Heller’s “other side of Chevron” consists of a series of erroneous, tendentious or unsupported accusations, based almost entirely on press statements by plaintiffs’ PR operatives. In the order he raises them: Continue Reading…

The ATS and Extraterritoriality, Part II: Universal Civil Jurisdiction and Choice of Law

by Anthony Colangelo

[Anthony J. Colangelo is an Assistant Professor of Law at SMU Dedman School of Law]

I summarized in a previous post my arguments that the presumption against extraterritoriality should not apply to the ATS to the extent courts use international law incorporated into U.S. common law as the rule of decision. The presumption was raised explicitly by the brief of the UK and Dutch Governments in Kiobel and will likely be raised again.

This post addresses three discrete but related issues that may arise going forward:

1. Whether the ATS’s jurisdictional character alters the application of the presumption against extraterritoriality;
2. Whether “universal civil jurisdiction” is sufficiently recognized under international law—an issue that seemed to get attention at oral argument based on Chevron’s amicus brief; and
3. Choice of law, including as to corporate liability.

I’ll address each issue in turn, though I’ll say at the outset that I will also try to tie them together to open up what might be a new route for corporate liability grounded in an old legal discipline historically included as part of “the law of nations”; namely, private international law. Some of these preliminary thoughts will be elaborated and bolstered by other arguments in an amicus brief Anthony D’Amato and I intend to file in support of neither side. Continue Reading…

Kiobel (III): Universality as a Constitutional Question

by Eugene Kontorovich

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law]

The extraterritoriality analysis starts with piracy, which has gotten significant play in the courts of appeals’ extraterritoriality cases like Doe v. Exxon and Rio Tinto (as well as in the Kiobel oral arguments on corporate liability). Because Sosa held that piracy would be actionable under the ATS, it is clear that the battle over extraterritoriality in Kiobel will be a naval engagement. It is true that piracy occurs extraterritorially, and under the current piracy statute, can be prosecuted even with no connection to the U.S. But proponents of foreign-cubed draw precisely the wrong inferences from piracy’s exceptional status.

Piracy was not any old international crime: it has its own separate constitutional provision: Congress can punish “piracies and felonies on the high seas, and Offenses against the law of nations.” Thus whatever is true of “piracy” is not necessarily true of other “Offenses” that can be reached under the ATS: these are separate, though related, Art. I powers. The Constitution’s singling out of piracy is striking and demands explanation, because it creates a double-redundancy. Does anything make piracy different from other high seas felonies and international law offenses? Yes: it was the only universally cognizable offense at the time.

Starting with this textual observation, I have explained that Congress can at most only use universal jurisdiction over offenses that clearly have that status in international law (see The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 Northwestern University Law Review 149 (2009)). There is evidence for this not just in the structure of the clause, but in grand jury instructions of Wilson and Story, the pronouncements of Marshall, and important judicial and Congressional precedents from the early Republic. For example, in U.S. v. Furlong, the Supreme Court in 1820 found that a statute that purported to punish “murder” by “any person” on the high seas does not apply universally because it is not a UJ crime.

Because murder was not universally cognizable, such “an offense committed by a foreign upon a foreign ship” is a matter in which “Congress ha[s] nor right to interfere.” The Court suggested this limitation was Constitutional, noting such universal regulation would exceed “the punishing powers of the body the enacted it,” i.e. go beyond the Define and Punish clause. Or as Marshall put it in 1800: “[T]he people of the United States have no jurisdiction over offenses committed on board a foreign ship against a foreign nation. Of consequence, in framing a Government for themselves, they cannot have passed this jurisdiction to that Government.” Continue Reading…

Weekday News Wrap: Tuesday, March 27, 2012

by An Hertogen

  • Amnesty International reports that fewer nations are applying the death penalty, but that those who do are making more use of it. The increase is particularly noticeable in the Middle East.
  • Amnesty International urges EU states to renew their commitment to examine their involvement in CIA secret flights
  • Associated Press reports that the White House offered key concessions, such as advance notice and limits on the type of targets, to Pakistani intelligence officials to save the CIA’s drone programme
  • The US and Australia are reportedly considering to use Australia’s Cocos Islands territory as a staging point for manned surveillance and drone flights over the South China Sea.
  • The US wants to build regional missile defense shields in Asia and the Middle East.
  • Turkey is considering establishing buffer zones on Syrian territory to deal with the influx of Syrian refugees and to protect its Southern border.
  • Meanwhile, diplomatic efforts on the Syrian situation continue. Kofi Annan, in his capacity as UN-Arab League Special Envoy, has visited Moscow and Beijing to discuss a six-point plan to end the violence. US Secretary of State Clinton will be in Riyadh and Istanbul this weekend for discussions. Syria is also on the agenda of this week’s Arab League Summit in Baghdad, which is however unlikely to push for Assad’s resignation.
  • The Obama administration will unveil standards for new power plants, setting the maximum allowed amount of GHG emissions per megawatt hours produced.
  • Citing security concerns, Australia has banned Chinese Huawei from bidding on contracts related to the building of the Australian National Broadband Network. Huawei rejects the fears of cyber warfare.
  • On a tour of Asia, the Canadian Prime Minister opened up negotiations on a free trade agreement with Japan. If successful, the US would find itself in a situation where its neighbours have an FTA with Japan, with possible ramifications for the auto industry, as discussed by Forbes.
  • Mexico will defend the WTO Panel COOL decision, which the US decided to appeal yesterday.

Does Assad Spouse Have a Right to Keep UK Citizenship?

by Peter Spiro

The Brits are looking to strip Asma al-Assad of her UK citizenship, this in the wake of the imposition of various sanctions on her and family members of other Assad associates.  Familial sanctions are an increasingly common practice, on the theory that you really get at the bad guys when you deprive their spouses of shopping trips to world capitals.  (In Mrs. Assad’s case, the theory seems pretty plausible, in light of the recent email cache revealing her attention to trivial luxury purchases while Homs burned.)  But so long as Asma is a citizen, she has an absolute right of entry into the UK, whose citizenship she enjoys by birthright.  Sort of awkward.

The expatriation statute at play here allows the Home Secretary to terminate the nationality of any British national where it “would be conducive to the public good” and would not result in statelessness.  The standard was adopted in 2006 in the wake of the London subway bombings.  It’s been put to work, but sparingly, as described in this Guardian story.  The most notable case involved sometime GTMO detainee David Hicks, who enjoyed UK citizenship for exactly one day before losing it under the measure.

Problem, from a human rights standpoint?  Possibly.  Expatriation these days against an individual’s will is increasingly rare.  The British measure is essentially standardless.  (It previously required a showing of conduct “seriously prejudicial to the vital interests of the United Kingdom.”  However unseemly they may be, Asma’s shopping trips probably don’t rise to that level of damage.)  More problematic, the law discriminates against dual nationals (mononationals are exempted because they would become stateless).  That’s something that’s surprisingly rare outside the context of political office-holding.  There aren’t many contexts in which dual citizens take a distinctive hit because of the status.  Why should they?

It might make sense just to let Asma’s citizenship lie.  She’s unlikely to be making jaunts to London anytime soon.  Even as a citizen, since her assets have been frozen she wouldn’t be able to do much there.  Once the Assad regime tumbles, the UK is unlikely to supply a comfortable resting spot for her or her family.  Unsympathetic as she may be, she’s not getting much out of the British tie at the same time that the UK is hardly tainted by the nominal association.

The CIA’s Enigmatic “Roger”

by Kenneth Anderson

Greg Miller has a fascinating front-page story in the Washington Post yesterday (Sunday; it appears to be behind a free registration wall) profiling “Roger,” the mysterious head of the Counterterrorism Center at the CIA, a key figure in the pursuit of Bin Laden, and a principal architect of the drones program. Here’s the money quote, borrowing from Lawfare:

Roger, which is the first name of his cover identity, may be the most consequential but least visible national security official in Washington — the principal architect of the CIA’s drone campaign and the leader of the hunt for Osama bin Laden. In many ways, he has also been the driving force of the Obama administration’s embrace of targeted killing as a centerpiece of its counterterrorism efforts.

Colleagues describe Roger as a collection of contradictions. A chain-smoker who spends countless hours on a treadmill. Notoriously surly yet able to win over enough support from subordinates and bosses to hold on to his job. He presides over a campaign that has killed thousands of Islamist militants and angered millions of Muslims, but he is himself a convert to Islam.

His defenders don’t even try to make him sound likable. Instead, they emphasize his operational talents, encyclopedic understanding of the enemy and tireless work ethic.

“Irascible is the nicest way I would describe him,” said a former high-ranking CIA official who supervised the counterterrorism chief. “But his range of experience and relationships have made him about as close to indispensable as you could think.”

In Other Supreme Court News: Political Question Doctrine Takes a Hit in Jerusalem Passport Case

by Peter Spiro

Opinions here, with an eight-Justice majority for the result, with the case kicked back downstairs for resolution on the merits.  In the long run, this could prove a watershed decision.  The Court rejects the “textual commitment” and “no manageable standards” bases for applying the political question doctrine.  Neither has ever made a lot of sense to me on their own terms, and they’ll be tricky to trot out in the future.  They were window-dressing for the functional imperatives of judicial nonparticipation in the high-stakes dramas of foreign relations.  (Justice Breyer basically takes that tack in his articulate dissent.)

Those stakes persist in some contexts, this one included, involving the status of Jerusalem.  (I suspect that the Secretary of State will win on remand.)  But in an increasing number of cases, the courts are both better positioned to decide disputes and less likely to provoke disaster, even if they get something wrong.  That’s an incident of globalization and disaggregation (see pp. 674-85 of this).  Zivotovsky points the way to greater judicial participation in foreign affairs.

Too bad the decision comes out today – with the Supreme Court beat otherwise occupied, I wonder if it will get more than a blip in tomorrow’s papers.

Kiobel (II): Universality, Not Mere Extraterritoriality

by Eugene Kontorovich

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law]

The new issue in Kiobel is not mere extraterritoriality, but rather universality. There are constitutional limits on universal jurisdiction (UJ); at most it can only be used for those “Piracies” and “Offenses” that have UJ status in international law. But Congress has not “defined” any offenses in the ATS. It delegated the task to the courts, but the courts must use this mandate narrowly and cautiously, as the “Define” power was given to Congress precisely because international law was too “deficient and vague” to be a common law rule.

Lower courts have discussed the application of the Alien Tort Statute to so-called “foreign cubed” cases – where the parties are foreigners and the conduct takes place abroad – as a matter of extraterritoriality, a term that suggests the presumption of statutory construction against extraterritorial application. While there is a presumption against extraterritoriality, the application of U.S. law to conduct abroad is not uncommon. Yet even the most controversial or aggressive use of extraterritoriality typically involves the regulation of American conduct abroad, or at least conduct that has substantial effects in American or on particularly American interests. But this is not the extraterritoriality of Kiobel, which like many ATS cases have no connection to the U.S. whatsoever. Such universally extraterritorial scope is certainly only found in the face of the clearest statement of congressional intent, such as in the unusual Maritime Drug Law Enforcement Act.

Universal jurisdiction, of the kind asserted in Kiobel, is exceedingly rare and poses much greater problems than mere extraterritoriality. It raises the question of where the federal government, supposedly one of limited powers internally, gets the authority to regulate conduct with no domestic nexus, and have federal courts sit as little world courts.

As shall be seen, Supreme Court precedents clearly apply presumptions of extraterritoriality to statutes dealing with international law violations, even universal ones. Some have argued that the Supreme Court implicitly OK’d ATS extraterritoriality in Sosa v. Alvarez-Machain, its previous major encounter with the statute. Sosa itself involved conduct in Mexico –but it was the abduction from that country by the D.E.A. and its local contractors of a man involved in torturing a federal agent to death, so that he could stand trial in the U.S. Foreign-cubed that is not: few cases could have a tighter nexus with America.

In the oral arguments on corporate liability, Justice Ginsburg suggested that Sosa OK’d extraterritoriality by citing favorably Filartiga, the break-out 1980 Second Circuit case that turned to the ATS into a tool for human rights litigation. Sosa quoted Filartiga’s famous analogy between modern human rights UJ and its precursors: “the torturer has become-like the pirate and slave trader before him-hostis humani generis, an enemy of all mankind [a phrase that was law of nations shorthand for piracy’s universal cognizability].” Never mind that piracy serves as poor model for modern UJ; Sosa’s quote from Filartiga is hardly decisive. The issue was not before the Court, and secondly, it could be that the ATS allows for UJ for a few norms like torture, but perhaps not for others like extrajudicial killing.

Kiobel (I): ATS Arguments Make for Strange Bedfellows

by Eugene Kontorovich

[Eugene Kontorovich is Professor of Law at Northwestern School of Law]

Today the Supreme Court takes on the scope of the Commerce Clause in the historic healthcare cases. The case raises the question of whether there are any substantive limits to the federal government’s domestic regulatory power. But another case soon to be (re)argued before the Court, Kiobel v. Royal Dutch Shell, manages to raise an even broader question: Are there any substantive limits to the federal government’s power to regulate matters occurring outside and having nothing do with the United States? Surprisingly, the latter question has not been generally regarded as a constitutional one.

The Supreme Court has expanded the issues under consideration in Kiobel, originally about corporate liability under the Alien Tort Statute, to include the extraterritorial application of the law. Like corporate liability, extraterritoriality had for decades just been assumed by the lower courts hearing ATS cases: now it will be fully explored.

These posts cross-posted on Volokh Conspiracy, will focus on the constitutional/federal courts issues involved, and of course explore the early piracy precedents of the Supreme Court to get traction on the issues. In short: before thinking about the ATS, one must consider the constitutional basis for universal jurisdiction – which is quite narrow. Furthermore, there are some good reasons derived both from the constitution and precedent for interpreting the ATS narrowly, as not exercising whatever universal jurisdiction power the federal government does have.

Before turning to the merits, it is amusing to note the strange bedfellows ATS doctrine makes. The litigation and accompanying academic debate over the meaning and scope of the Alien Tort Statute has been a marvel of surprising ideological transpositions, and more reversals of traditional roles than All’s Well That Ends Well. On the issue of corporate liability, liberals (crudely speaking) urge the Court look to parochial U.S. law, and conservatives (still crudely speaking) favor the adoption of a rule from international law and practice. Then the Court asks for new arguments on extraterritoriality. Now the conservatives point to U.S. law – the judge-made presumption against extraterritoriality – and liberals point to the international status of the offenses. It is like a game of Twister.

Neither position is fully correct. There may be a place for extraterritoriality in ATS cases, but in a much narrower class of cases then where it is currently applied. The following two posts will draw on much of my prior work, and I hope the reader forgives me not recapitulating the entire argument of those articles here.

Weekday News Wrap: Monday, March 26, 2012

by Jessica Dorsey

Thravalos on Hamdan, Conspiracy, and History (Updated)

by Kevin Jon Heller

Lawfare has published a very interesting guest post by Haridimos Thravalos on whether conspiracy is a war crime.  The whole thing is worth a read; here is the intro:

In June 2006, the U.S. Supreme Court struck down President George W. Bush’s use of military commissions to try suspected members of al-Qaeda in Hamdan v. Rumsfeld, 548 U.S. 557 (2006). In Hamdan, a plurality of the Court also concluded that conspiracy was “not a stand-alone offense against the law of war” triable by “law-of-war military commission.” See Hamdan, 548 at 608.

The issue of whether conspiracy is triable by military commission has become suddenly relevant again: It is today pending before the U.S. Court of Appeals for the District of Columbia Circuit in the case of Ali Hamza Suliman Ahmad Al Bahlul v. United States and may be headed back to the Supreme Court. In Al Bahul, one of the issues to be decided is whether Congress has the constitutional power in the Military Commissions Act of 2009, 10 U.S.C. §§ 948a-950t (2006 & Supp. IV 2010), to authorize trial of the offense of conspiracy by military commission. Petitioner Al Bahlul contends that “[t]here is an extensive and unanimous history of rejecting conspiracy to commit war crimes.” Brief of Petitioner at 19, Al Bahlul v. United States, No. 11-1324 (D.C. Cir. Mar. 9, 2012). He bases his conclusion, with respect to domestic precedents, solely upon the reasoning adopted by the Hamdan plurality. So the plurality’s use of history has immediate consequences for the vitality of military commissions now and in the future.

It is the purpose of this brief memorandum to demonstrate that the Hamdan plurality’s conclusions of law with respect to conspiracy were based on bad history–either incomplete or erroneous facts.

There is, however, a basic problem with Thravalos’ argument.  He claims that “[t]he Hamdan plurality found that conspiracy was not a violation of the law of war under domestic precedents for three reasons” (emphasis mine).  But the Hamdan plurality was not concerned with whether “domestic precedents” — i.e., US practice — supported viewing conspiracy as a war crime; it was interested in determining whether conspiracy was a war crime under international law, as the following passages from the decision make clear…

Israel’s Destruction of Solar Panels in the West Bank

by Kevin Jon Heller

I returned ten days ago from a week of teaching international humanitarian law in Jericho. It was my first time in the West Bank, and I won’t soon forget it. I was particularly struck, not surprisingly, by the limitations on Palestinian life and movement — the endless checkpoints, the hideous wall, the massive illegal settlements dotting the landscape. You know you’re not in Melbourne or New York when you have to wait an hour for a taxi to come from Jerusalem to take you to the Dead Sea, less than 10 minutes from your hotel, because the local taxi drivers don’t have the permits needed to make the journey.

All that is a backdrop to a recent article in The Guardian that I found indescribably sad:

Two large solar panels jut out of the barren landscape near Imneizil in the Hebron hills. The hi-tech structures sit incongruously alongside the tents and rough stone buildings of the Palestinian village, but they are fundamental to life here: they provide electricity.

Imneizil is not connected to the national electricity grid. Nor are the vast majority of Palestinian communities in Area C, the 62% of the West Bank controlled by Israel. The solar energy has replaced expensive and clunky oil-powered generators.

According to the Israeli authorities, these solar panels – along with six others in nearby villages – are illegal and have been slated for demolition.

Nihad Moor, 25, has three small children. The family live in a two-room tent kitted out with a fridge, TV and very old computer. She also has a small electric butter churn, which she uses to supplement her husband’s small income from sheep farming.

“The kids get sick all the time. At the moment, because of a change in the weather, they all have colds. Without electricity I wouldn’t even be able to see to help them when they need to use the [outdoor] toilet at night,” Moor says. “I don’t want to imagine what life would be like here if [the panels] were demolished.”

Imneizil’s solar system was built in 2009 by the Spanish NGO Seba at a cost of €30,000 to the Spanish government. According to the Israeli authorities, it was built without a permit.


The problem for Palestinian communities here is that permission to build any infrastructure is very hard to come by. According to figures from the civil administration quoted by the pressure group Peace Now, 91 permits were issued for Palestinian construction in Area C between 2001 and 2007. In the same period, more than 10,000 Israeli settlement units were built and1,663 Palestinian structures demolished.

The Jewish settlements in Area C are connected to the national water and electricity grids. But most Palestinian villages are cut off from basic infrastructure, including water and sewage services. Imneizil, which borders the ultra-religious settlement of Beit Yatir, currently has nine demolition orders on various structures, including a toilet block and water cistern for the school.


One UN expert, speaking anonymously as they are not authorised to talk to the media, believes the crackdown on the alternative energy movement by the Israelis is part of a deliberate strategy in Area C. “From December 2010 to April 2011, we saw a systematic targeting of the water infrastructure in Hebron, Bethlehem and the Jordan valley,” the source said. “Now, in the last couple of months, they are targeting electricity. Two villages in the area have had their electrical poles demolished.

“There is this systematic effort by the civil administration targeting all Palestinian infrastructure in Hebron. They are hoping that by making it miserable enough, they [the Palestinians] will pick up and leave.”

It’s a vicious logic: don’t connect Palestinian communities to the national electrical grid; deny permits to build solar alternatives; then demolish solar panels that are “illegally” built.  All to open up room to expand Israel’s illegal settlements.

There is no question that Israel has legitimate security interests in the West Bank.  But that doesn’t justify depriving people of their basic human needs.

National Security Federalism in the Age of Terror

by Kenneth Anderson

That’s the title of a new paper in the Stanford Law Review by Columbia Law School’s Matthew Waxman (link is to SSRN).  One highly topical example of national security federalism is raised by the controversy over NYPD surveillance of various Muslim groups.  It is easy to view this issue in familiar terms of substantive balances or tradeoffs of security versus privacy or other Constitutional values – and seen in those terms, the natural solutions seem to lie in tightening and enforcing substantive restrictions and guidelines that govern police intelligence activities and investigations. Waxman’s new article is important for focusing instead on the broader structural and institutional issues – the federalism issues – at stake here, too:  What role should local police agencies play in terrorism prevention, and how should their cooperation be organized horizontally (among local police agencies) and vertically (between the federal and local governments)? How much discretion should state and local governments have in performing counterterrorism intelligence functions, and what are the dangers and opportunities in localized variation and tailoring?  (Below the fold, the abstract from SSRN.) Continue Reading…

Why I Went With Hoover Institution Press to Publish ‘Living With the UN’

by Kenneth Anderson

My book, Living With the UN: American Responsibilities and International Order, is now in stock and on-sale at the Hoover Institution Press website.  I have a copy in hand and I’m delighted to be holding it.  It’s not quite like holding your new baby – but for an inanimate object, it’s closer than you might have thought.  (Julian – feel free to weigh in here: I’m thinking having one’s new book in hand is kind of like holding one of those Japanese roboticized teddy bears for soothing the elderly with dementia, but maybe that’s just me.)

It will be a couple of weeks – April 17 – before it’s available through Amazon, Barnes & Noble, and other online sellers.  A Kindle edition will be released on April 17 as well.  Over the next couple of months, I will be talking about various themes in the book – UN-US relations, the nature of the UN, the different ways in which the US should engage (or not) with different parts and functions of the UN.  Julian will be doing the same with his and John Yoo’s provocative new book, Taming Globalization, so expect to hear a lot at OJ about themes in our books (we have, btw, covertly set up an algorithm in which the more OJ readers buy our books, the less we will talk about them!).  To start with, however, I wanted to go to a very different topic – this one about publishing, choosing a publisher, and why I chose the Hoover Institution Press.  This follows on some excellent guest posts by senior academic press editors in the past here at OJ – I’m really extending my take on those past discussions. I’m hoping that my thinking here will be useful to some OJ readers thinking about publishing.

This is a policy essay, not a “scholarly” book – it has about twenty footnotes for the whole thing, and a bibliography of secondary sources aimed to be accessible to those without a university research library or knowledge of how the UN online archives work.  My interest in this case is dissemination of the ideas in the book, not staking out academic turf.  So my general choices were three: One, find a commercial trade publisher, which seemed improbable given the subject matter, the way it is written, and my lack of trade press publishing in the past.  Two, find a university or academic press; this seemed like the obvious thing, and in fact there were several options that direction, notwithstanding that this is something like the opposite of the dense academic monograph.  Third, go with a think tank policy press in which case, given the history of the project and my affiliations, it would be Hoover.

The Hoover publishing folks have been marvelous.  They have been fabulous on production values, editing and copy editing, all the professional production elements.  They have been patient to a fault in waiting for the manuscript and letting me make later changes.  And they have excellent marketing staff and have a commitment to getting the book out there in a way that is only sometimes true of academic presses whose primary audiences are academics and university libraries.  But several academic presses are great in all these ways, too, so one has to ask, why consider a think tank press?  After all, isn’t a think tank press – even one associated with a university, like Hoover, and moreover a conservative think tank – taking a hit in academic prestige and respectability? Continue Reading…

Weekend Roundup: March 17-23, 2012

by An Hertogen

A new feature this week on Opinio Juris is the Weekday News Wrap. The latest edition, with links to the earlier ones, can be found here.

At the beginning of the week, we continued last week’s roundtable discussion of the ICC’s Lubanga Judgment. Cecile Aptel discussed the split between the judges on whether the charge of using children “to participate actively in the hostilities” includes the use of children as cooks or sex slaves. She pointed out that this discussion arose in particular as a result of the prosecution’s decision not to include allegations of sexual violence in the charges against Lubanga. Dov Jacobs’ contribution also dealt with this exclusion. He questioned whether something can or should be done, in particular by the judges, to change the content of the charges mounted by the prosecution. James Stewart put the Lubanga case in the context of the conflict in the DRC and questioned whether it will be the beginning of international justice for the region. Mark Drumbl looked ahead at the possible legacies of the Lubanga judgment through a jurisprudential, a pedagogic and a bureaucratic lens. Mark Kersten asked in his post whether the Lubanga judgment would have a deterrent effect on the use of child soldiers, in general as well as in the DRC.

Further on Lubanga, Julian Ku pointed to a NY Times op-ed criticising the ICC as throwing a spanner in the works of reconciliation. Julian also questioned what those who, like Teju Cole, criticise Kony 2012 as “white savior complex” propose as an alternative.

On Saturday, Doug Cassel posted on his recent experience as a paid consultant for Chevron which prompted him to write an open letter to the human rights community questioning whether the ends justify the means. The post attracted a lot of comments as well as a response by Kevin Heller.

In other posts, Kevin Heller found Jack Goldsmith’s admission in a Foreign Policy editorial that the “unwilling or unable”-test for self-defence against a non-state actors is not “settled in international law” refreshing. Roger Alford posted on the broken windows theory of corruption and Ken Anderson posted on how to declare war, Joan of Arc-style.

David Landau responded to Mark Tushnet’s comments on his article “The Reality of Social Rights Enforcement” in a final installment of the Third Harvard International Law/Opinio Juris Symposium that took place earlier in the year.

This week’s main event was our first symposium with the Leiden Journal of International Law, at the occasion of the Journal’s 25th birthday.

The symposium kicked off with a discussion of two articles on the impact of the ICJ’s Nicaragua judgment, which also celebrated its 25th anniversary. The articles, by Lori Damrosch and Marcelo Kohen, are introduced here. John Dugard agreed with Lori Damrosch that the ICJ has become more of a “World Court” since the Nicaragua judgment, but has become less popular in the US. Lori Damrosch’s response can be found here. André Nollkaemper’s comments on Marcelo Kohen’s article focused on the relevance of the Nicaragua judgment to understand the younger “responsibility to protect”-doctrine.

The second part of the symposium discussed James Stewart’s article in which he advances a “unitary theory of blame attribution, whereby responsibility turns only on having made a causal contribution to the relevant harm and having made the requisite blameworthy moral choice designated within the offense”. James’ first post describes the events that prompted him to think about “modes of liability”.

Daryll Robinson commented on James’ proposition that some of the conceptual issues international criminal law suffers from are not unique to the international system but rather inherited from the domestic criminal law systems from which the international system draws its inspiration. He also questioned whether the unitary theory, while defensible, was also preferable. James’ response can be found here.

In his comments, Thomas Weigend agreed with James’ diagnosis of the contradictions in the law of complicity in international criminal law, but disagreed with the proposal to do away with the different modes of liability and shift the emphasis instead to the sentencing stage. James’ response can be found here.

Finally, Jens Ohlin strongly disagreed with the unitary theory and defended the importance of the distinction between principals and accessories. James’ response can be found here.

For those of you who want to continue the discussion, the Leiden Journal of International Law invites you to their event at next week’s Annual Meeting of the American Society of International Law to celebrate their 25th anniversary.

At the same conference, you will also be able to attend a new series of talks, ASIL IDEAS, introduced here by Harlan Cohen.

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

LJIL Symposium: The Debate Continues at ASIL on March 30, 2012!

by dov jacobs

We hope you enjoyed this first Opinio Juris/LJIL Online Symposium. For those who want to prolong these debates in real life, while waiting for the next online symposium, the Leiden Journal of International Law (LJIL) will celebrate its 25th anniversary on 30 March 2012 during the American Society of International Law’s Annual Meeting. The journal will host a casual roundtable discussion featuring two articles in its latest and forthcoming issues, followed by Q&A and a cocktail reception.

Here’s the programme:

You are therefore warmly invited to join LJIL’s birthday party, which will take place at the Park Hyatt Washington, 1201 24th Street NW – across from the ASIL venue – from 6:15 p.m. till 8 p.m.

LJIL Symposium: James Stewart Responds to Jens Ohlin

by James G. Stewart

[James G. Stewart is Assistant Professor of Law at the University of British Columbia]

Jens Ohlin, with George Fletcher and in his own right, has been a pioneer in bringing criminal theory to bear on international criminal justice. His earlier work warned us that our dogmatic insistence on ascertaining international criminal law in pre-existing sources of public international law risked undermining the inherently criminal nature of this adjudicative process and the fundamental notions of criminal law that must apply as a consequence. As is the case with the other critics who have written for this blog, my article is counterfactually dependent on his earlier groundbreaking work.

I think it appropriate to start by placing Ohlin’s comments in context. His admirable defense of the differentiated model of blame attribution presently in place in international criminal justice does not take into account that arguably the most prominent theorists even within his own jurisdiction, from Michael Moore to Sandy Kadish and Larry Alexander, all view complicity as conceptually superfluous. This does not respond in any way to Ohlin’s comments, but I do think it important to table the growing body of authoritative academic argument against the differentiated model international courts have unquestioningly absorbed. In many respects, my article is an attempt to do just that.

On another preliminary note, I fear that Ohlin’s criticisms might miss the real essence of the paper. Most importantly, he does not address the normative substance of “modes of liability” in international criminal justice. Both the title to his response (“Names, Labels, and Roses”), and the content of his remarks under that heading imply that the issue is just one of nomenclature, as if there were no normative significance to convicting someone of genocide for recklessly assisting the crime. But the major argument in my paper is that in its extremities, complicity violates the same standards that commentators have used to criticize the overreach of other “modes of liability” within the discipline, and that consequently, this mode of liability too is sometimes unjustifiably harsh or simply unprincipled. Continue Reading…

LJIL Symposium: Names, Labels, and Roses

by Jens David Ohlin

[Jens David Ohlin is Associate Professor of Law at Cornell Law School; he blogs at LieberCode]

In his excellent essay, James Stewart advocates for a unitary model of perpetration. To the extent that this means the end of modes of liability, so be it says Stewart. We don’t need them. They codify distinctions that we don’t need, promote confusion over coherence, and so we should instead streamline the centrifugal doctrines into a single account of causal contribution. On the elegance scale, Stewart’s proposal should score a 10 from most judges.

Stewart pitches his account as revisionary, an attempt to right the ship after years of confusing scholarly and judicial debate about modes of liability and the difference between principals and accessories (or other categories that occupy similar conceptual space). But I think that it is the wrong light in which to see the argument.

I see Stewart’s proposal as urging return to a substantially similar state of affairs under the original Joint Criminal Enterprise scheme proposed by the Tadic Appeals Chamber during the early days of the ICTY. Cassese was the prime mover behind the JCE doctrine, and it covered all members of the collective endeavor, regardless of their level of contribution. Eventually, the doctrine was modified to require a heightened contribution requirement, and eventually the leadership level defendants were “de-linked” from the foot soldiers and placed in separate JCEs. But the important point is that the original JCE doctrine included everyone from an architect of the crime (mastermind or hintermann) as well as the foot soldiers or what the later ICTY cases often referred to as the Relevant Physical Perpetrators, or RPP.

So under the original JCE doctrine, each member of the group was prosecuted for participating in the JCE. That was, in essence, a unitary model of perpetration. True, as a formal matter, aiding and abetting and accomplice liability survived the creation of JCE, but their relevance and practical import was greatly reduced. Most defendants at the ICTY were prosecuted under a JCE theory and it seemed to me that in most cases JCE could have replaced the other modes of liability given the collective nature of international crimes. Continue Reading…

Weekday News Wrap: Friday, March 23, 2012

by Jessica Dorsey

That’s it for our first week of our new feature, the Weekday News Wrap. We hope you are enjoying it. If there’s an event you’d like to see in our coverage, let us know. Keep your eye on Opinio Juris for the Weekend Roundup, a recap of all that’s happened this week on the blog, coming tomorrow!

Should We Resist the “White Savior Industrial Complex”?

by Julian Ku

I found much to like and dislike in this essay by Nigerian-American writer Teju Cole discussing his widely shared tweets on the Invisible Children Kony 2012 video. Here is one:

1- From Sachs to Kristof to Invisible Children to TED, the fastest growth industry in the US is the White Savior Industrial Complex.

Cole goes on to observe (rightly in my view) that Africa and Africa causes like Kony 2012 often derive from the emotional needs of the American or European “saviors” rather than the needs of the Africans themselves.

One song we hear too often is the one in which Africa serves as a backdrop for white fantasies of conquest and heroism. From the colonial project to Out of Africa to The Constant Gardener and Kony 2012, Africa has provided a space onto which white egos can conveniently be projected. It is a liberated space in which the usual rules do not apply: a nobody from America or Europe can go to Africa and become a godlike savior or, at the very least, have his or her emotional needs satisfied.

This problem has implications for the entire international aid community, and its affiliated international human rights community.  I agree much of this “white savior complex” is real, but I don’t get what he wants to do about it. Cole believes that U.S. foreign policy is almost completely evil and hypocritical. So would he make common cause with U.S. non-interventionists like Ron Paul and Pat Buchanan? Is that road better just so he doesn’t have to watch condescending and self-regarding white “saviors” strutting around the world?

Inaugurating ASIL IDEAS

by Harlan Cohen

A few months ago, I mentioned here on Opinio Juris a new feature of the ASIL Annual Meeting that we’re introducing this year:  ASIL IDEAS:  Idea, Direction, Engagement, Action, Solutions. These shorter talks, about 20 minutes long, will feature innovative ideas international lawyers will want to think about from people you might not otherwise hear.  Speakers will be drawn from a broad range of fields – science, technology, entrepreneurship, journalism, philanthropy, as well as law.  The goal is to broaden our understandings of what’s possible.

With this years’ Annual Meeting less than a week away, we’re very excited to announce our first three ASIL IDEAS talks.  Here are the descriptions:

Thursday, March 29, 2012
11:00 am – 11:30 am

Speaker: Rebecca MacKinnon, Global Voices; New America Foundation
Topic: Consent of the Networked: The Worldwide Struggle for Internet Freedom

“A global struggle for control of the Internet is now underway,” argues Rebecca MacKinnon, Bernard L. Schwartz Senior Fellow at the New America Foundation. For MacKinnon, who conducts research, writing and advocacy on global Internet policy, free expression, and the impact of digital technologies on human rights, “it is time to stop arguing over whether the Internet empowers individuals and societies, and address the more fundamental and urgent question of how technology should be structured and governed to support the rights and liberties of all the world’s Internet users.”

Friday, March 30, 2012
10:30 am – 11:00 am

Speaker: Ted Parson, University of Michigan
Topic: Climate Engineering: Challenges to International Law and Potential Responses

Engineered interventions to limit climate change, particularly high-leverage methods to reduce incoming sunlight, such as placing reflective particles in the upper atmosphere, carry multiple environmental and policy-related risks, and pose challenges to international law governance that are both novel and severe. Uncertainties notwithstanding, certain clear and emerging characteristics of these technologies suggest the outlines of their policy and political risks and their likely requirements for effective governance.

Parson’s articles have appeared in Nature, Science, Climatic Change, Issues in Science and Technology, the Journal of Economic Literature, and the Annual Review of Energy and the Environment. Parson served on the scientific organizing committee for the 2010 Asilomar conference on climate intervention, and led the working group on institutional mechanisms for the 2011 Solar Radiation Management Governance Initiative, convened by the UK Royal Society, the Environmental Defense Fund, and the Academy of Sciences of the Developing World (TWAS). He holds degrees in Physics from the University of Toronto and in Management Science from the University of British Columbia, and a Ph.D. in Public Policy from Harvard, where he spent twelve years on the faculty of the Kennedy School of Government.

Saturday, March 31, 2012
10:30 am – 11:00 am

Speakers: Zahi Khouri, ICC Palestine & Oren Shachor, ICC Israel
Topic: The Jerusalem Arbitration Center: Focus on Neutrality & Efficiency

Business leaders in Palestine and Israel have realized the need to find a mechanism for resolving commercial disputes between the two countries. In 2010, this initiative came to fruition with the agreement to establish the Jerusalem Arbitration Center (JAC) as an equal and just, apolitical and professional bilateral alternative dispute resolution forum.

Zahi Khouri, Founding and Board Member of ICC Palestine and Founder, Chairman and Chief Executive Officer, Palestinian National Beverage Company (NBC-Coca-Cola licensee) and (Reserve) Major General Oren Shachor, President of ICC Israel will present JAC and its accomplishments, challenges, and future activities.

We’re very excited about these sessions, which we believe highlight well the themes of this year’s meeting: Confronting Complexity. We also think they capture the wide range of ideas these sessions will feature going forward. Come join us for a cup of coffee and a dose of inspiration!

The full schedule’s online, and registration remains open. We hope to see you next week. …and if you can’t be there, check out the live blogging of the conference’s sessions on ASIL Cables.

How To Declare War (Anno Domini, 1429)

by Kenneth Anderson

Jhesus-Maria, King of England, and you, Duke of Bedford, who call yourself regent of the Kingdom of France, you, Guillaume de la Poule, count of Suffort, Jean, sire of Talbot, and you, Thomas, sire of Scales, who call yourselves lieutenants of the Duke of Bedford, acknowledge the summons of the King of Heaven.  Render to the Maid here sent by God the King of Heaven, the keys of all the good towns which you have taken and violated in France.  She is here come by God’s will to reclaim the blood royal.  She is very ready to make peace, if you will acknowledge her to be right, provided that France you render, and pay for having held it.  And you, archers, companions of war, men-at-arms and others who are before the town of Orleans, go away into your own country, by God.  And if so be not done, expect news of the Maid who will come to see you shortly, to your very great injury.  King of England, if you do not so, I am chief-in-war and in whatever place I attain your people in France, I will make them quit it willy-nilly.  And if they will not obey, I will have them all slain; I am here sent by God, the King of Heaven, body for body, to drive you out of all France … (Written this Tuesday of Holy Week, March 22, 1429.)

Joan of Arc, the Maid of Orleans, sends a formal letter of summons to the English upon the siege of Orleans.  (I post this once a year on this date at all the places I blog.)

LJIL Symposium: James Stewart Responds to Thomas Weigend

by James G. Stewart

[James G. Stewart is Assistant Professor of Law at the University of British Columbia]

I start my reaction to Thomas Weigend’s comments by insisting on my great gratitude to him. In his earlier comments on a draft of this article, he offered criticisms that were far more extensive that those he gently revealed in this blog (or that I have ever received for an article before). Although my final piece does not adequately respond to all his misgivings, I confess that I may have learned at least as much from his extensive criticisms as I did from the voluminous literature required to write this. In acknowledging his great intellectual generosity, let me nonetheless offer some response to portions of his criticism.

Professor Weigend starts by suggesting that the “way out” offered by a unitary theory of perpetration is intuitively compelling because of its simplicity. What law student, attorney or judge would disagree, he asks, would deny that these differentiated modes of liability are really not easy? Here, I fear that he perhaps inadvertently reduces my argument to a mere distaste for complexity. But my goal is not simplicity for simplicity’s sake—I am also minded to ensure that international modes of liability consistently respect culpability, to halt the fractured development of modes of liability internationally from one fad to another and to suggest a means of unifying standards of blame attribution across the many jurisdictions that can prosecute these crimes. Continue Reading…

LJIL Symposium: Thomas Weigend comments on James Stewart’s “The End of ‘Modes of Liability’ for International Crimes”

by Thomas Weigend

[Thomas Weigend is Professor of International and Criminal Law at the University of Cologne]

In his elegantly written and profound article, James Stewart argues in favor of abandoning, in international criminal law, the traditional distinction between perpetratorship and complicity. He favors a unitary solution: every person who substantially contributes to the commission of an international offense should simply be convicted of that crime, with individual differences as to the degree of responsibility to be taken into consideration only at the sentencing stage.

Stewart’s proposal will immediately appeal to any lawyer who has ever ploughed through the intricacies of the distinction among several modes of liability, be it under domestic or international criminal law. The lives of judges, advocates and law students alike would be easier if they did not have to worry about the fine lines between aiding and committing, or between instigating another person to commit a crime and using that person as an (“innocent”?) agent.

With regard to the law of complicity, it is not difficult to find examples of contradictions and inconsistencies in the jurisprudence of international criminal tribunals, and Stewart points them out with wit and precision. I fully concur with this part of the author’s analysis. For example, the fact that some legal systems require a “substantive contribution” for aiding and abetting clearly is a red herring invented for the purpose of allowing judges some leeway in assessing the criminal liability of persons who are marginally involved in the “core” crime. Depending on the way one interprets this concept, “substantive contribution” can mean a little less or a little more than providing a sine qua non contribution to the actus reus. Likewise, the contested issue of whether an accomplice can act with a lesser degree of mens rea than the perpetrator leads to intractable quandaries: Isn’t it unfair to hold A liable for complicity in a special intent crime when he lacks that special intent? But why, on the other hand, should B who knowingly helps a perpetrator of genocide go unpunished just because B does not act with genocidal intent? Much of this has to do with the mess that international criminal law has made of mens rea, but it remains true that the distinctions of various levels of liability (and the cracks between them) lead to particularly unconvincing results in the area of complicity. Continue Reading…

Weekday News Wrap: Thursday, March 22, 2012

by Jessica Dorsey

LJIL Symposium: James Stewart responds to Darryl Robinson

by James G. Stewart

[James G. Stewart is Assistant Professor of Law at the University of British Columbia]

I mean no false praise to Darryl Robinson when I describe his article The Identity Crisis in International Criminal Justice as one of the very best in the discipline. Many years ago, when working as a practitioner of international criminal law, I read Mirjan Damaška’s article The Shadow Side of Superior Responsibility. I had to take the afternoon off work to recover. While I was probably too old and ugly to have a similar experience with Identity Crisis, it registered at a similar level. Both are iconic in the discipline, both deeply shaped the way I think about these issues, and both troubled me. I will be more than glad if this piece has half that effect for others.

Darryl and I agree on a great many things. We agree that international modes of liability have veered from the path of culpability, that many ‘modes of liability’ zealously adopted in international criminal justice are illiberal in their peripheries, and that the growth of these modes seems capricious next to defensible theoretical standards. We seem to part ways in the mostly inconsequential realm of speculating how all this came about. In his kind response, Darryl claims I have overstated the position in his and other authors’ criticisms of international modes of liability, who only argue that the international influence is an influence not the only influence. But this cuts two ways. I too only argue that when it comes to “modes of liability”, departures from principle “stem less from international influence and more from the natural infiltration of indefensible domestic doctrine into the international arena.” (p. 218-219)

To some extent then we have no real differences on this score, but I do think it necessary to reiterate my suspicion that someone brave enough to wade through the literature of international “modes of liability” will unearth a number of references to the criminal law’s restraining character, acknowledgments that domestic criminal law violates culpability too but tendencies to downplay that reality as compared with international practices, and most importantly, a lingering perception that there is something atypical in international criminal justice’s departures from defensible theoretical standards. Whether intentional or not, this excellent literature has given rise to the perception that international criminal justice is exceptional in its illiberalism. Continue Reading…

LJIL Symposium: Darryl Robinson comments on James Stewart’s “End of Modes of Liability”

by Darryl Robinson

[Darryl Robinson is Assistant Professor at Queen’s University Faculty of Law]

James Stewart’s article “The End of ‘Modes of Liability’ for International Crimes” is an impressive piece of scholarship.  It is one of the most sophisticated works to date in bringing the rich scholarship on criminal law theory to bear on problems of international criminal law (ICL).  Stewart brings admirable—and frankly enviable—skill in succinctly explaining major controversies in criminal law theory and weaving that literature into an analysis of ICL issues.  While I will raise some critical questions here, I applaud and share his objective of theorizing about ICL from a liberal perspective.

Of course, the value of any comment lies in the disagreements.  Surprisingly, I agree with the aspects with which I might be presumed to disagree, and I disagree with some aspects with which I might be presumed to agree.  Namely, I agree with his proposition that many problems of ICL flow from domestic law and not from international influences, even though that proposition is presented as oppositional to the views of myself and others.  Conversely, I ask whether Stewart’s critiques of complicity might be unnecessarily stringent.

Domestic v. International Influences
Stewart quite rightly points out that domestic legal systems often contain doctrines that arguably contradict fundamental liberal principles, and that some of ICL’s problematic doctrines were drawn from domestic legal systems.  This is a valuable complement to the point made by scholars such as Danner, Martinez, Fletcher, Ohlin, Damaška and me that some problematic doctrines are fostered by reasoning particular to ICL.

However, when contrasting his position with that of other scholars, Stewart seems to somewhat overstate their position.  For example, he refers to and refutes the “thesis that broad modes of liability are necessarily hatched internationally” (p. 179), and the “assurance that unprincipled international rules necessarily reveal the triumph of international agenda over the restraining force of the criminal law” (p. 203) (emphasis added).  As far as I know, none of the cited scholars have ever suggested any such necessary linkage.  They have not suggested that all, or even most, of the problematic doctrines of ICL flow from international influences.  Similarly, Stewart demonstrates that some departures are not “nefarious creations of an illiberal international system” (p. 198) or a “nefarious utilitarian agenda derived from [ICL’s] international political status” (p. 182).  I certainly agree, but the refutation is misplaced in that nefariousness has not been suggested.  I also don’t think scholars have suggested that domestic systems are free of problematic doctrines (p. 169). Continue Reading…

The Broken Windows Theory of Corruption

by Roger Alford

Kudos to Daniel Chow and Mike Koehler for a wonderful conference last week at Ohio State Law School addressing the FCPA at thirty-five. It’s always a risk to hold a conference that mingles hard-core practitioners with soft and fuzzy academics, but this one seemed to work. The defense and prosecution side of the FCPA bar battled it out with competing panels addressing the merits and demerits of FCPA prosecutions. Charles Duross, the DOJ attorney in charge of FCPA prosecutions, gave a spirited defense of the Obama Administration’s robust enforcement campaign, while the defense side questioned a system that is largely devoid of judicial supervision because of pervasive settlements using non-prosecution agreements (NPAs) and deferred prosecution agreements (DPAs).

Meanwhile the law professors examined various facets of the FCPA that are often ignored by the international legal academy. For example, Michael Van Alstine had a great discussion of treaty-based double jeopardy arguments, Jason Yackee discussed a bribery defense to corporate investment arbitration claims, and Julian Ku wrestled with the parallels between the ATS and the FCPA.

I presented some really fun empirical work I’ve been doing on the broken windows theory of corruption. Based on my initial findings, empirical research reveals a strong positive correlation between corruption and other public goods such as civil liberties, economic welfare, political rights, standards of living, and human development.

For example, if one examines how countries fare on the Transparency International’s Corruption Perception Index with their score on the World Economic Forum’s Global Competitiveness Index, there is a positive correlation coefficient of 0.8473. The y-axis represents Transparency International’s corruption perception index (with 10 being the best) and the x-axis represents the World Economic Forum’s global competitiveness index (with 6 being the best).

Put in plain English, the countries that do the best on twelve key pillars of productivity also do the best in terms of anti-bribery. Conversely, if a country lacks the institutions, policies and other factors necessary to be competitive globally, it will also score poorly on its perceived commitment to combat bribery.

Without making causal claims (at least for now), where one sees problems with corruption and bribery, one also sees a host of other problems, ranging from low U.N. human development scores (education, birth rates, and standards of living), poor Freedom House scores (civil liberties and political rights), low World Economic Forum scores (global competitiveness and productivity) and Polity IV regime scores (democracies vs. autocracies).

In short, there are moderate to strong positive correlations (ranging from 0.3863 to 0.8473) between corruption scores and scores on eight other leading indices that measure various public goods. As outlined in my forthcoming article in the Ohio State Law Journal, it appears that the broken windows theory of corruption has strong empirical support.

LJIL Symposium: Introduction to the “End of Modes of Liability” Discussion

by James G. Stewart

[James G. Stewart is Assistant Professor of Law at the University of British Columbia]

My article argues for an end to modes of liability in international criminal justice. It uses complicity, also known as aiding and abetting or accomplice liability, to show that all modes of liability violate standards international criminal lawyers have deployed as benchmarks in the deconstruction of other modes of liability like superior responsibility and joint criminal enterprise. Thus, I advocate for a unitary theory of blame attribution, whereby responsibility turns only on having made a causal contribution to the relevant harm and having made the requisite blameworthy moral choice designated within the offense. I argue that this unitary theory could attach to all prosecutions for international crimes, both international and domestic, which would transcend the long-endured fixation on modes of liability within the discipline.

I could say considerably more about the content of the article itself, but a longer abstract and an earlier draft of the entire paper are available on SSRN. I therefore think it more interesting and less repetitive to describe the influences that brought me to this position and the lessons I have learned though this process:

Influence One – Major Decisions about “Modes of Liability” without a Theoretical Framework
Several years ago, I worked as an Appeals Counsel for the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia. In that capacity, I was assigned to an issue of particular conceptual difficulty: within the context of superior responsibility, was a superior’s failure to punish subordinates for international crimes he knew they had perpetrated a means of participating in his subordinates’ international crimes, or a separate lesser inchoate crime comparable to dereliction of duty? On the one hand, international courts had clearly treated failures to punish as a means of participating in the underlying crime for a very long time, perfectly oblivious to the conceptual problem. On the hand, the competing idea raised initially by Mirjan Damaška, was that international criminal justice was draconian in convicting an accused of a crime he in no way caused. The two positions seemed equally compelling—one favored formalistically ascertaining and applying the content of existing international law, the other gave preference to basic concepts of fairness derived from criminal principles. In the unreasonably short period of time we had to take a position on the issue of this theoretical complexity, it struck me that many advocates sought to justify or refute the approach by making analogies to equivalent domestic concepts, and there was a real absence of any significant conceptual framework through which to decide. This article was an attempt to plot that framework. Continue Reading…

Weekday News Wrap: Wednesday, March 21, 2012

by Jessica Dorsey

  • Mauritania has agreed to extradite ex-Libyan chief-of-intelligence Abdullah al-Senussi to Libya.
  • The Economist outlines the world’s biggest arms exporters based on a new report from the Stockholm International Peace Research Institute.
  • US President Barack Obama is slated to visit the demilitarized zone between North and South Korea today ahead of his upcoming visit with South Korean president, Lee Meyung-Bak.
  • Western powers diluted the language of a U.N. Security Council resolution regarding Syria in order to garner Russian support; in response, speaking from Jakarta, U.N. Secretary General Ban Ki-moon once again urged an international response to the violence in Syria and warned of ‘massive repercussions’ for the world if the international community does not act.
  • The Palestinian Authority has asked the U.N.’s Human Rights Council to investigate the impact of Israeli settlements in the occupied territories.
  • Iran’s Ayatollah Ali Khamenei said that Iran would attack to defend itself if the United States or Israel were to show aggression toward the nation.
  • Saudi Arabia may include women on its Olympic team, potentially making the Summer Games in London a watershed event, where every participating nation features at least one female athlete.
  • The US exempted 10 EU countries and Japan from sanctions as they have significantly cut crude oil purchases from Iran, but this move leaves China and India exposed. Secretary of State Hillary Clinton has a statement here.
  • Israel has asked to clear out its embassy in Cairo, highlighting growing tensions since the ousting of Hosni Mubarak last year.
  • Jurist covers the ACLU’s petition filed yesterday with the Inter-American Commission of Human Rights on behalf of Afghan and Iraqi citizens who were allegedly tortured while being detained by American military.
  • The Kony 2012 campaign and the ICC’s recent verdict in the Lubanga case have put the issue of child soldiers back on the international agenda, reports The Guardian.

Jack Goldsmith’s Accurate Description of the “Unwilling or Unable” Test

by Kevin Jon Heller

Jack Goldsmith has an editorial today at Foreign Policy defending the legality of drone strikes. Readers will not be surprised to learn I disagree with his assessment, but exploring our differences is not the point of this post. Instead, I want to acknowledge the precision with which he describes the “unwilling or unable” test for self-defense against a non-state actor (emphasis mine):

There are reports that Yemen consented to the strike on Awlaki. But even if it did not, the strike would still have been consistent with the Charter to the extent that Yemen was “unwilling or unable” to suppress the threat he posed. This standard is not settled in international law, but it is sufficiently grounded in law and practice that no American president charged with keeping the country safe could refuse to exercise international self-defense rights when presented with a concrete security threat in this situation. The “unwilling or unable” standard was almost certainly the one the United States relied on in the Osama bin Laden raid inside Pakistan.

This is a refreshing statement.  As I have noted before, although state practice and opinio juris supporting the “unwilling or unable” test has grown since 9/11 — and may well continue to grow in the future — it is far too early to conclude that the test has crystallized as a new norm of customary international law.  So Goldsmith’s statement is spot-on: the “unwilling or unable” test may represent the U.S. view of self-defence under the UN Charter, but it does not (yet) represent the view of the international community.  I hope other scholars will be as careful in the future.

LJIL Symposium: Response of Lori F. Damrosch to Comments by John Dugard

by Lori F. Damrosch

[Lori F. Damrosch is Henry L. Moses Professor of Law and International Organization and Hamilton Fish Professor of International Law and Diplomacy at Columbia Law School]

My article, ‘The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or In Between?’ originated as a contribution to a symposium convened on the 25th anniversary of the delivery of the merits judgment in the case. I took as my starting point one of the statements issued by the US government while the case was pending, which had predicted that the International Court of Justice would harm itself unless it refrained from becoming politicized. My article then inquired into whether the predicted negative trends had materialized, with attention to patterns of acceptance of the Court’s jurisdiction, its docket, and compliance with its rulings. I concluded that most of the dire predictions were overstated and that the most serious negative impact has been the on the willingness of the United States to participate fully in international dispute settlement at the ICJ and elsewhere.

One aspect of the 25-year trends I surveyed was the remarkable growth in the Court’s docket after the Nicaragua case and the shift in the geographic distribution of cases to include a much higher proportion from the developing world. In his comments on my article addressed to that point, Professor John Dugard refers to the Court’s 1966 judgment in the South-West Africa cases, which I had not discussed simply because my remarks at the June 2011 conference focused on developments subsequent to the Nicaragua case. I therefore did not think it necessary to elaborate the reasons why the Court, prior to Nicaragua, had gone through a period of very few cases on its docket, although I did briefly allude to that fact in my contribution (p. 140). Alain Pellet, whose contribution will appear in the next issue of the Leiden Journal of International Law, also surveyed the relevant history. As the literature on the Court explains, between the late 1960s and the early 1980s preceding Nicaragua, the Court had suffered a collapse in confidence resulting in part from its handling of the cases brought by Ethiopia and Liberia against South Africa to contest the maintenance of apartheid in the territory of South-West Africa, which South Africa administered under a League of Nations mandate. Because that story has been fully told elsewhere, I began my treatment with the Nicaragua judgment and the statement of the United States government in response thereto.

To the extent that African countries in particular had avoided the Court after the 1966 dismissal of Ethiopia’s and Liberia’s contentious cases, the rehabilitation had already begun by the time of Nicaragua. Tunisia and Libya, as well as Burkina Faso and Mali, went to the Court shortly before the Nicaragua case or during its pendency, for delimitation of their maritime or land boundaries. After the mid-1980s, African states submitted still more cases by consent or brought them under other headings of the Court’s contentious jurisdiction, so that there is now a large number of such cases and an impressive record of resolution by the Court of intra-African disputes. The fact that the Court had an African President, Judge T.O. Elias, during the Nicaragua period may have contributed to the renewal of African interest in considering the Court as a potential forum for dispute settlement. African states may also have found in the Nicaragua case some signals that the Court was prepared to handle their cases in a manner responsive to the valid criticisms that had been made in the wake of dismissal of Ethiopia’s and Liberia’s cases against South Africa two decades earlier. Presumably, such a restoration of confidence would have to be sustained over time, as has apparently happened in view of the significant proportion of the Court’s docket attributable to intra-African disputes. Continue Reading…

LJIL Symposium: From Nicaragua to R2P: Continuity and Change

by André Nollkaemper

[André Nollkaemper is is Professor of Public International Law and Vice-Dean for Research at the Faculty of Law of the University of Amsterdam.]

Cross posted on the SHARES blog

The ICJ´s decision in Nicaragua surely is one of its most cited judgments. It remains the leading authority on attribution of conduct of non-state actors and on (collective) self-defense. It also is a popular point of reference in analyses of the formation of customary law and on the jurisdiction of the Court. In his excellent The Principle of Non-Intervention 25 Years after the Nicaragua Judgment, Marcelo Kohen points out that the Judgment also is a relevant source for understanding the concept of responsibility to protect (R2P), even though that concept only came into existence some twenty years after the judgment.

Kohen rightly argues that R2P, by placing emphasis on collective security and discounting unilateral action, has been placed firmly in the footsteps of – and is fully consistent with – Nicaragua´s holdings on non-intervention, and that there is nothing in the concept of R2P ‘allowing for a reversal of the principle of non-intervention or otherwise allowing states to intervene without SC authorization.’ (at 163).

It is hard to expect otherwise. The application of the concept of R2P continues to give rise to controversies between states and other relevant actors. The small step forward that appeared to be brought by SC Res 1973(2011) proved to be two substantial steps backward, following the overly broad interpretation that led NATO to overthrow Gadaffi. The absence of consensus on meaning, scope and implementation at the political level obviously means the lack of a basis for a change in the relevant principles of international law, notably those on protection of human rights, non-intervention and the use of force.

Nonetheless, as Julia Hoffmann and I argued in our recent book, rereading Nicaragua in the light of the wide variety of controversial issues surrounding R2P makes sense. On the one hand, the US had based its support for the contras in part on the fact that Nicaragua had committed violations of human rights (eg par. 267), the same rationale that underlies the aspirations of many who relied on R2P in the context of Libya or Syria. On the other hand, the main ambition of the US was not so much to protect human rights as to (support the) overthrow of the regime. This may not be a generally accepted aim of R2P doctrine, but it certainly can be part of the agenda of R2P supporters. The middle way that the Court had to find between the laudable ambitions to protect human rights on the one hand, and the no-go area of allowing a state to support the overthrow of a foreign regime, is potentially relevant to the R2P debate. Continue Reading…

Weekday News Wrap: Tuesday, March 20, 2012

by Jessica Dorsey

LJIL Symposium: The Nicaragua Case: Its Impact

by John Dugard

[John Dugard is Professor of Law at the Universities of Leiden and Pretoria and was a Member of International Law Commission from 1997 to 2011]

My comments on the impact of the Nicaragua Case are directed mainly at the article by Lori Damrosch on the implications of the decision for the International Court of Justice and international adjudication. As Andre Nollkaemper will examine Marcelo Kohen’s piece on the subject of intervention and R2P I shall comment only briefly on this article.

Humanitarian intervention has a dubious status in customary international law. Most international lawyers probably take the view that it is prohibited by Article 2(4) of the UN Charter. However, some international lawyers (including the present writer) take the view that it has sufficient support in state practice and treaty law (Article 4(h) of the African Union Constitutive Act) to at least keep it alive as a residual justification for intervention when the Security Council is prevented from acting because of the veto of a permanent member – a very real possibility as evidenced by the manner in which the United States, China and Russia have used their vetoes or threatened their veto in order to protect one of their friends or surrogates accused of systematic human rights violations. Marcelo Kohen is therefore unwise to reject humanitarian intervention completely and to argue that it has been ‘replaced’ by R2P. At best humanitarian intervention without Security Council support is an important residual right; at worst it constitutes recognition of the fact that certain interventions in order to protect human rights should be seen as ‘legitimate’ albeit ‘illegal’ (see Report of Independent International Commission on Kosovo (2005) 186; T Franck Recourse to Force: State Action against Threats and Armed Attacks (2002) 180, 184). Humanitarian intervention, according to the latter view, is to be seen as euthanasia is seen in domestic law: as an intervention that is illegal but as one that may be condoned or forgiven.

In essence Lori Damrosch argues that the International Court of Justice has succeeded in becoming a ‘World Court’ since the Nicaragua Case in that it has been more widely used, particularly by developing nations, but that this ‘popularity’ has been at the expense of the United States which has become more critical of the Court. I agree with this assessment but in my view Lori has understated her case. Continue Reading…

LJIL Symposium: Discussion of the ICJ Nicaragua Judgment

by dov jacobs

[Dov Jacobs is an Assistant Professor of International Law at Leiden University]

This first part of the symposium will provide an opportunity to discuss some aspects of what is considered to be one of the key judgments of the ICJ, some 25 years after it was issued.

The two comments you will read today, from John Dugard and André Nollkaemper are in response to the following articles that are published in the Leiden Journal of International Law. These articles are part of a two issue symposium celebrating the 25 years since the Judgment. In Volume 25(1), the Journal published contributions by Lori Damrosch, Marcelo Kohen, but also Paul Reichler. In upcoming Volume 25(2), you will be able to read contributions by Judge Yusuf, James Crawford and Alain Pellet.

The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or In Between?, by Lori Damrosch

At the time the United States withdrew from participation in the Nicaragua case at the International Court of Justice, the US government expressed concern that ‘the course on which the Court may now be embarked could do enormous harm to it as an institution and to the cause of international law’. This essay examines whether or to what extent the anticipated negative effects came to pass. It concludes that dire predictions of harm to the Court were overstated. Twenty-five years later, the rate at which states accept the Court’s jurisdiction has held steady. Only a few states have added jurisdictional reservations concerning military activities. The mix of cases being brought to the Court has shifted towards a more representative distribution. States are generally complying with the Court’s decisions, though some compliance problems remain. The most serious negative impact has been on the willingness of the United States (still the Court’s most active litigant) to participate fully in international dispute settlement.

The Principle of Non-Intervention 25 Years after the Nicaragua Judgment, by Marcelo Kohen

This article focuses on the analysis by the International Court of Justice of the principle of non-intervention in domestic affairs in its judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua and contrasts it with the evolution of international law and practice in this field. It is proposed that the Court’s 1986 analysis not only remains of actuality today, but also constitutes a precursor to legal developments that have since taken place. This is particularly the case with regard to the relationship between the protection of human rights on the one hand and the safeguard of state sovereignty and the collective security regime on the other. The 1986 judgment helped to clarify the content of humanitarian assistance. It constituted the starting point for the development of this concept in a series of GA resolutions that were subsequently adopted. The controversial doctrine of ‘humanitarian intervention’, as well as state practice in violation of this principle, in no way led to modifying existing international law. Similarly, the new concept of ‘responsibility to protect’, which places emphasis on collective security and discounts unilateral action, has not led to the disappearance of the principle of non-intervention either.

Introduction to the Leiden Journal of International Law/Opinio Juris Symposium

by dov jacobs

[Dov Jacobs is an Assistant Professor of International Law at Leiden University]

This year marks the 25th anniversary of the creation of the Leiden Journal of International Law. This quarter of a century has seen the development from a student-created, student-run and most certainly student-read publication, to an internationally renowned professional journal in International Law and Legal Theory.

As pointed out by LJIL’s Editor-in-Chief, Larissa van den Herik, in her editorial to the most recent issue of the journal, this year also marks the continuing foray of the Journal into cyberspace. LJIL is now available on Westlaw and its readership extends well beyond the borders of Europe. It is also taking the lead, with other European journals, in trying to define a coherent policy in relation to free online repositories such as SSRN.

And finally, this first online symposium in collaboration with Opinio Juris marks LJIL’s discovery of the world of online blogging. Larissa’s editorial discusses the possible interaction between traditional legal scholarship and expert blogging, issues debated last year by LJIL’s other Editor-in-Chief, Jean d’Aspremont and myself (see here and here). While we might vary on the margins in relation to the exact quality and benefits of legal blogging (and of traditional legal scholarship), we all agree that these two modes of communication and dissemination are not mutually exclusive and cater to different audiences in different timeframes.

Most importantly, and irrespective of the form or the medium, international law expert blogging, with Opinio Juris as one of its forerunners, shares with LJIL the same underlying philosophy of stimulating debate. Indeed, LJIL has always prided itself for the discussions, even sometimes controversies, it has sparked, both within its pages and in the international community of scholars and practitioners at large. This exciting collaboration with Opinio Juris therefore comes fittingly as a natural extension into cyberspace of the fundamental values of openness and debate of LJIL.

Lubanga Decision Roundtable: Lubanga and the Trouble with ICC Deterrence

by Mark Kersten

[Mark Kersten is a PhD student in International Relations at the London School of Economics]

International lawyers will undoubtedly pour over the landmark verdict handed down this week by the International Criminal Court, in which Thomas Lubanga Dyilo was found guilty of conscripting, enlisting and using child soldiers in the long-standing and brutal conflict in the Democratic Republic of Congo. The trial, riddled with well-documented problems from the get-go, is likely to shape the practice of the ICC itself – at least so those disturbed by the conduct of the prosecution hope. But what of the political effects of the Lubanga decision beyond the Court room? Will the trial have a deterrent effect on the use of children in warfare in the DRC?

The widely held argument that international criminal justice can deter the commission of international crimes remains highly problematic. Scholarship on the subject typically, and rather dubiously, ignores the mixed evidence of deterrence in the case of domestic crimes. Studies generally assess international criminal justice’s effects in a vacuum where, for example, the use of military and economic sanctions aren’t taken into account when seeking to establish whether or not there is a deterrent effect. Most problematically, evidence of deterrence is forever slanted against those who claim its existence. As William Schabas has rightly observed, “while we can readily point to those who are not deterred, it is nearly impossible to identify those who are.”

Despite these key issues, deterrence continues to be among the most common arguments proffered in favour of holding perpetrators of international crimes to account. The increased prominence of the deterrence arguments reflects a shift, elucidated recently by Leslie Vinjamuri, in the argumentation for international criminal tribunals, away from moral duties and obligations to the positive consequences that these tribunals can bring about. But will the verdict against Lubanga have a deterrent effect on the use of child soldiers?

Lubanga Decision Roundtable: Lubanga Legacies?

by Mark Drumbl

[Mark A. Drumbl is the Class of 1975 Alumni Professor at Washington and Lee University and author of Reimagining Child Soldiers (OUP, 2012).]

A long time in coming, to be sure, and slightly anticlimactic, the Lubanga judgment nonetheless represents a watershed – a first, in any event, for the ICC.  What might the legacies of the Lubanga judgment be? I thank the organizers for inviting me to speculate on this question.  Three lenses come to mind: jurisprudence, pedagogy, and bureaucracy.

Jurisprudential.  Lubanga further clarifies the scope of the war crime of conscripting or enlisting children under the age of fifteen into armed forces or groups or using them to participate actively in hostilities. Specifically, although conscription and enlistment are separately mentioned as offenses, the consent of the child can never be a defense. Proof of compulsion is not required. As a matter of liability, therefore, it doesn’t matter whether the child was forcibly abducted or was enlisted after volunteering. The Trial Chamber did intimate that an abductor might be sentenced more harshly than the commander who enrolls child volunteers (para. 617, also referencing reparations). Lubanga also examines the question as to what, exactly, using a child to participate actively in hostilities actually means.  The majority approach focused on whether the “support provided by the child to the combatants exposed him or her to real danger by becoming a potential target” (para. 820).  This approach obscures the reality that some child soldiers may face the prospect of greater harm from members of their own forces (whether adult leaders, mid-level officials, and fellow children) than from “enemy” forces.  Sexual slavery and abusive punishment come to mind.  Judge Odio Benito took up this point in her separate and dissenting opinion.

Pedagogic. Overall, the Lubanga judgment invokes, and further embeds, the prevailing image of child soldiers as victims who lack capacity to determine their best interests in the context of armed conflict (paras. 610-618). I have argued elsewhere that this image, although indicative of the lives of many child soldiers, cannot so readily be generalized. What is more, this imagery may also become disabling, may discourage the input of former child soldiers in processes of post-conflict reconstruction, and may weaken the development of a robust culture of juvenile rights. The use of imagery is a powerful tool to mobilize resources and actualize denunciation. Alternately, the use of other images, for example that of child soldiers as feral youth programmed to kill, also serves instrumental political ends. The United States, for example, has stylized Omar Khadr and children associated with Al Qaeda as “very very dangerous” so as to justify their becoming subjects of harsh military commission proceedings and lengthy imprisonment. All extreme images are at best partial prints that occlude more than they clarify.  Child soldiers are heterogeneous in their experiences, expectations, and paths to (and from) militarization. The fact that release of the Lubanga judgment coincided with the viral success of the Kony 2012 video further reinforces a number of sensationalized myths in public consciousness. One myth is the Africanization of child soldiering.

Weekday News Wrap: Monday, March 19, 2012

by Jessica Dorsey

In addition to its recently introduced Weekend Roundup, Opinio Juris is pleased to offer you the Weekday News Wrap. This Monday-through-Friday feature aims to offer a selection of news items from around the world related to many topics of interest on the blog. As usual, feedback is very welcome and we wish you happy reading!

  • The first ITLOS judgment on maritime delimitation was issued last Wednesday (ITLOS press release). Commentary here and Dapo Akande discussion of the timing of the decision, coming on the same day as the ICC’s Lubanga decision, here.
  • The United Nations Secretary General Ban Ki-moon says that at least 8,000 are dead in Syria and urged an end to the violence.
  • Despite criticism of the rocket technology it will use, North Korea plans to go ahead with its satellite launch, citing its sovereign right of “peaceful development and use of space.”
  • The WTO appellate body ruled that US subsidies to Boeing are illegal; the ICTSD reports on the decision here.
  • Javier Solana discusses sovereignty at Project Syndicate.
  • A cache of approximately 3,000 e-mails were leaked to The Guardian from insiders from the Syrian regime, including President Bashar al-Assad and his wife. Foreign Policy Passport gives a guide to reading them here.
  • Jurist reports about the US sending Afghan detainees to prisons known for torture.
  • Abdullah al-Senussi, the former Libyan chief-of-intelligence, has been arrested in Mauritania. The ICC, the Libyan National Transitional Council, and France have all requested his custody.
  • The L.A. Times reports on the psychological strain drone crews face.
  • Afghan president, Hamid Karzai, calls for a US troop withdrawal by the end of next year, previously scheduled for the end of 2014.
  • The NY Times reports that Ethiopian forces stormed into Eritrea and the clashes are stirring new tensions between the two countries.
  • Invisible Children’s production, Kony 2012, was screened in Uganda and stirred anger amongst viewers.
  • With all the hype stirred up by Hollywood stars surrounding the Kony 2012 campaign and activities in Darfur, Foreign Policy takes a look at the phenomenon of “Celebretarian Intervention.”

David Landau Responds to Mark Tushnet

by Harvard International Law Journal

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium of late January. It was originally posted on March 9, but we repost it today to avoid confusion with other journal symposia.]

I would like to thank Mark Tushnet for his thoughtful reply to my article. As he notes, it is a deeply positive development that we have moved from talking about whether constitutions should include social rights to how they should do so. The debate about means is a particularly difficult theoretical and empirical problem, one that is likely to be one of the central debates in the field of comparative constitutional law for a long time. And the question of the effect of social rights on the poor ought to be perhaps the central question in evaluating these various means.

In this light, we ought to consider the question of whether all four of the remedial methods I discuss can be improved upon. There seems to be little debate on the question of whether individual enforcement of social rights and enforcement of these rights via “negative injunction” are useful poverty reduction tools. Neither seems effective as currently constructed, but it is important to think about whether either device could be improved. For example, the individual enforcement model might be creatively engineered to have more of a system-wide effect, perhaps via a liberal use of contempt-like sanctions. Similarly, some of the recent South African jurisprudence may have demonstrated that even the “negative injunction” or status-quo-protecting model can benefit the poor in important ways, if cleverly deployed. The South African courts have refused to evict residents (thus freezing the status quo) in order to push the government to upgrade existing settlements rather than razing them and undertaking wholesale renewal. And in one case, a court refused to allow private property owners to evict impoverished squatters but allowed those private property owners to seek damages against the state – this may be an effective way to incentivize the bureaucracy to solve the problem.

The main disagreement between Professor Tushnet and my piece is on the other two types of remedies; in other words, on the question of softer, dialogue-based remedies versus harder, structural injunctions. Professor Tushnet tends to favor the former and I tend to favor the latter. I admit that this is a difficult choice, especially since courts are constrained by various features of their political environments – very hard remedies might well be infeasible in a one-party state like South Africa, for example. And as I note in the paper, structural injunctions are sometimes effective, but have considerable capacity costs on courts and often do not achieve much. So the choice of remedies seems to me to be one between highly imperfect options. Also, I see the issue of hardness or softness in system-wide remedies as basically lying on a continuum – these are differences in degree rather than in kind. That is, as Professor Tushnet points out, both structural injunctions and softer remedies like Grootboom are dialogical in nature, but there are important differences in whether the court or the legislature leads the dialogue. Continue Reading…

Lubanga Decision Roundtable: Lubanga in Context

by James G. Stewart

[James G. Stewart is Assistant Professor of Law at the University of British Columbia]

The first judgment of the International Criminal Court is cause for real celebration, but we must not let our justifiable elation overshadow all that work the judgment leaves undone.

Let me begin by rejoicing, before I express concerns. This is the first determination of guilt by a permanent international institution dedicated to accountability for atrocity. Who could have dreamed, when Allies drew up charges against only their vanquished enemies after WWII, when atrocity after atrocity when unpunished during Cold War rivalries, or when prosecutors used broken doors as desks in the initial years of ad hoc tribunals, that their efforts would culminate in a permanent international institution with (almost) global reach. The Lubanga judgment is the first fruit of a spectacularly unlikely diplomatic project, a much-needed symbol of the possibilities for historical change in the face of entrenched political resistance, and a glimmer of hope that some imperfect justice may just prevail.

This specific judgment is also a reminder that African rebel leaders cannot feel complacent about the impunity they have traditionally enjoyed, and to a lesser extent, a warning to others elsewhere too. So, when Joseph Kony demands that a set of criminal lawyers march for miles into the bush to advise him on his potential exposure to liability for international crimes, there is some nominal gain in the world. This benefit is also apparent when the head of the British army demands a single written sentence from the British Attorney General and Prime Minister describing the Iraq War as legal before he sends in British troops, even if his fear of prosecution for aggression before the ICC is legally misguided. The Lubanga judgment undermines the complacency we all got used to.

And then there is the issue of child soldiers…

Lubanga Decision Roundtable: Lubanga, Sexual Violence and the Legal Re-Characterization of Facts

by dov jacobs

[Dov Jacobs is an Assistant Professor of International Law at Leiden University. He also blogs at Spreading the Jam where he has already commented on several aspects of the Lubanga Judgment.]

The Lubanga trial was not only being scrutinized for the charges that were included (the use of child soldiers in armed conflict). The charges that were not included always loomed close by, and most notably among those, the allegations of sexual violence. From the start, the Prosecutor was criticized for essentially including one crime, that of using child soldiers. The possible reasons for this approach are manifold. Understanding why the OTP chose this path is however not the object of this post. What I want to discuss is what, if anything, can and should be done, once the choice is made, especially on the part of the judges.

The answer, according to me, is crystal clear when you read the Statute and Rules of Procedure and Evidence (RPE) of the Court: absolutely nothing. It would be too long to go into the details of what these documents say in relation to the choice of charges (I refer you to my upcoming book chapter on the topic for a comprehensive analysis). But in a nutshell, the Prosecutor is solely responsible for choosing the charges and the underlying factual elements. The Judges, whether at the pre-trial phase, or at trial, have no power whatsoever in relation to the content of the charges. But the story doesn’t end there. The Judges, in their never-ending quest to maintain control over the proceedings, included in the Regulations of the Court (because they had, rightfully in my opinion, lost power over the RPE) a Regulation 55 allowing them to legally re-characterize the facts, a provision which I think was adopted ultra vires and is contrary to the Statute. Indeed, whatever one thinks of the opportunity of judges having such a power, the fact is that the drafters of the Statute and the RPE chose not to grant it, and it was not the judges’ decision to make to grant it to themselves (more on this in the above-mentioned book chapter).

In any case, this Regulation was used in the Lubanga trial to try and get sexual violence in through the back door…

Lubanga Decision Roundtable: The Participation of Children in Hostilities

by Cecile Aptel

[Cecile Aptel is Associate Professor of International Law at the Fletcher School, Tufts University]

Among the many legal and factual issues raised by the landmark Lubanga judgment rendered by the ICC this week, a central one concerns the definition of “the use [of children under 15] to participate actively in hostilities” qualified as war crimes under both article 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute, the only charges retained against Lubanga. The sensitive question of the definition of “use to participate actively in hostilities” gave rise to a dispute between the majority of the trial chamber, including its presiding judge, judge Fulford, and judge Odio-Benito, and resulted in the latter issuing a separate and dissenting opinion.

The judges disagreed on whether or not the terms “use to participate actively in hostilities” should actually be defined in the judgment. The majority opined:

[…] Given the different types of roles that may be performed by children used by armed groups, the Chamber’s determination of whether a particular activity constitutes “active participation” can only be made on a case-by-case basis. (para. 627)

Judge Odio-Benito in her separate and dissenting opinion disagreed with this case-by-case determination, arguing notably that it potentially risks leading to divergent assessments of the respective harms suffered by different children, in particular by the girls victims of sexual violence.

Judge Odio-Benito’s concern appears to stem notably from the failure of the prosecution to charge Lubanga for the sexual crimes committed against some of the child-soldiers…

Is Peace the Victim of the ICC’s Justice?

by Julian Ku

I don’t have any particular insights to add on the very interesting and detailed roundtable discussion folks are having on the Lubanga judgment.  But I can’t resist pointing out this op-ed by Ian Paisley (the son of a leading figure on the Northern Irish settlement) in the New York Times slamming the ICC as a obstruction to national reconciliation and peace:

The court’s success as a vehicle for delivering justice continues to be debated. The I.C.C. was founded amid much fanfare, but its track record — with only this single conviction — has been poor. Arguably, the cases before it are complex, and it was always going to take time for a new institution to complete them.

But this misses the point. The I.C.C. was intended as an instrument for delivering peace. In this respect it has not been a success. It will continue to falter because its current methods go against the experience of many places in Africa and around the world where peace has been delivered through political negotiations and reconciliation efforts, not the imposition of international justice.

I am not making an argument against I.C.C.’s existence: In places where there is no functioning government, or the government is hostage to one section of society, or where there is no viable reconciliation process, the international community has a duty to ensure that the court is the guardian of justice.

But the pursuit of justice should not replace or undermine ongoing national reconciliation efforts. The foremost challenge facing the I.C.C. is to determine whether its intervention will help or hinder the cause of peace. The wheels of justice must be allowed to turn at their own pace, but that they must not impede the peace process.

Of course, Jide Nzelibe and I have made this argument at some length here, and with a further wrinkle that the ICC is not likely to have much of a deterrence effect either.  I know this is an old and already hotly debated topic among scholars. But I wonder if it will again become a leading criticism of the ICC.

The Other Side of Chevron

by Kevin Jon Heller

In his recent guest post, Doug Cassel attempts to portray Chevron as the innocent victim of illegal and unethical conduct by the lawyers for the plaintiffs harmed by its predecessor’s dumping of 16.8 million gallons of crude oil and 20 billion gallons of toxic waste into the Ecuadorian rainforest.  Cassel writes as an advocate for Chevron, so he can hardly be expected to discuss both sides of the story.  It is thus critically important to understand the reprehensible behavior that Chevron has engaged in from the earliest days of the litigation.  Here, in no particular order, are some highlights:

1. Chevron has repeatedly lied about the environmental damage caused by its dumping — damage just as repeatedly documented by its own internal audits.

2. Chevron fraudulently altered a report that they gave to their paid scientific consultants in order to hide the fact that they had engaged in dishonest sampling practices in the affected areas (deliberately sampling only areas predetermined to be clean).

3. Chevron has used a secret lab in the United States to hide dirty samples taken from the affected areas.

4. Chevron lawyers have been indicted in Ecuador for making false claims about Chevron’s fake “remediation” of affected sites — which included paying Ecuadorians to build houses on top of dirty sites so they could not be tested.

5. Chevron’s paid scientific consultants misrepresented epidemiological studies linking Chevron’s dumping of waste to health problem in the affected area.  (See this letter signed by 50 leading scientists from all over the world.)

6. Chevron has tried to bribe the Ecuadorian government into quashing the case.

7. Chevron threatened the presiding judge in the case with jail time if he did not rule in favor of the company.

8. Chevron tried to entrap a sitting judge into taking bribes, doctored videotapes that recorded the scheme, and then paid the individual involved a great deal of money to keep quiet.

9. Chevron attorneys have been sanctioned in U.S. courts for abusing the discovery process, including taking depositions in order to harass witnesses, and for filing vexatious lawsuits against lawyers for the plaintiffs and against filmmakers who have documented the damage Chevron has caused.

These examples could be multiplied indefinitely.  But I think they are enough to rebut Cassel’s attempts to portray Chevron as the innocent victim in the case.

Suing Chevron in Ecuador: Do the Ends Justify the Means?

by Doug Cassel

[Doug Cassel is Professor of Law at Notre Dame Law School]

In an environmental suit brought by lawyers for some residents of the Amazon, an Ecuadorian court last year issued an $18.2 billion judgment against Chevron. Readers who follow the case only casually may have the impression that this is a classic case of David vs. Goliath, and that Ecuadorian courts gave Goliath his come-uppance.

That impression is understandable. The plaintiffs’ lawyers and associated NGO’s wield an impressive PR operation. The banner headline of their web site tells readers:

Over three decades of oil drilling in Ecuador’s Amazon, Chevron dumped billions of gallons of toxic waste into waterways relied on by local inhabitants. The result: A humanitarian and public health crisis affecting thousands, which Chevron refuses to put right.

There are at least five problems with that headline:

  • Chevron never drilled a drop of oil in Ecuador. Its only connection is its purchase in 2001 of a Texaco subsidiary, TexPet, whose oil operations ended a decade earlier;
  • The only company drilling – and spilling – oil since 1992 has been the Ecuadorian State company, which plaintiffs promised not to sue;
  • The $18.2 billion was awarded, not as damages for past harm to health, but mainly to fund environmental remediation. Yet plaintiffs’ experts admitted to their lawyers that contamination is “just at the pits and stations and nothing has spread anywhere at all;”
  • The oil pits and stations have been or are being remediated. Whatever work remains to be done could not remotely approach even $1 billion, let alone $18 billion; and
  • Chevron has repeatedly stated that it is open to constructive dialogue to resolve the legal controversy and to benefit Amazonian residents, but it is not open to judicial extortion.

Weekend Roundup: March 10-16, 2012

by An Hertogen

Welcome to the second edition of our Weekend Roundup. Last week’s edition can be found here.

Last weekend, Claude Bruderlein’s guest post discussed the growing tension on the means and methods to provide humanitarian protection in Syria.

Two posts built on posts from last week. Picking up on Anthony Colangelo’s guest post arguing against applying the presumption against extraterritoriality to the ATS, John Knox’ guest post added arguments why the presumption should not apply, but pointed to other arguments that the Court might use to rein in the scope of the ATS. Kevin Heller revisited his post on the legality of preventive self-defense.

From Monday onwards, Opinio Juris brought you a book symposium on the recent book by Professor Tai-Heng Cheng of New York Law School, When International Law Works: Realistic Idealism After 9/11 and the Global Recession. Tai-Heng Cheng introduced his book here. Julian Ku described the main argument of the book in a “short bloggish description” as

We should follow formal, positive international law most of time, except when we shouldn’t. In those cases, we should find a way to do the right thing without undermining the overall international legal system, which has an inherent moral value in maintaining minimum world order.

Julian Ku questioned whether the theory could predict particular legal decisions, to which Tai-Heng Cheng responded that his theory was not a falsifiable hypothesis but only aimed “to explain how the international legal system works and to help decisionmakers make decisions in international problems, in order to justify international law’s claim to regulate international matters”. They then exchanged views on whether positivism and rationalism predict or not.

Ralph Wilde liked how the book “offered a way of thinking about international law that allows us to take the most useful insights from recent US theoretical debates, and also allows us to move on from the seeming impasse that these debates, read in isolation and on their own terms, seem to suggest”, but missed the perspective of the feminist theory or TWAIL. Tai-Heng Cheng’s response is here.

Rob Howse and Tai-Heng Cheng exchanged views on when morality considerations can enter in international adjudication.

Chester Brown’s first post also addressed the question how considerations of morality and effectiveness feed into treaty interpretation. He debated the analysis of Nicaragua and Loewen. He also considered the Nuclear Tests case in light of the justificatory framework proposed in the book. In a second post, he applied the framework to the Advisory Opinion on the Legality of the Threat or or Use of Nuclear Weapons. Tai-Heng Cheng’s responses can be found here and here.

Our final commentator, Hari Osofsky, suggested examining whether and when international law works for less powerful actors. She also proposed applying the justificatory theory to examine decisionmaking by actors that lack formal power in international decisionmaking, but still play an important role in it. Referring to the comments by Ralph Wilde and Rob Howse, she added that these actors might challenge the understanding of which values are considered “universal”. Tai-Heng Cheng’s response, which includes references to some of his other research, can be found here.

On Wednesday, Kevin Heller reported on the ICC’s landmark first judgment in the Lubanga case. Jens Ohlin and Kevin Heller posted on the relevance of the Control Theory for the interpretation of “co-perpetration” in Article 25(3)(a) of the Rome Statute, on which the judges in Lubanga were split 2-1. Our discussion of the Lubanga judgment will continue over the weekend and early next week.

Later next week, we will have a symposium on three articles of the latest issue of the Leiden Journal of International Law, two (1, 2) examining the ICJ’s Nicaragua judgment 25 years on and a third on the modes of liability in international criminal law.

We hope you feel inspired by what you have read on Opinio Juris this week. If you are, the call for papers for the International Law Weekend 2012 to which Peggy McGuinness drew our attention here may interest you.

We’d like to thank all our guest contributors for their efforts this week and wish all our readers a nice weekend!

Lubanga Decision Roundtable: More on Co-Perpetration

by Kevin Jon Heller

I’ll have much to say about various legal aspects of the Lubanga judgment in the days to come, but I wanted to start by discussing the relatively narrow — though critically important — point that Jens addressed in his post: the dispute between the majority and Judge Fulford concerning the correct interpretation of co-perpetration in Article 25(3)(a) of the Rome Statute, the sole mode of participation at issue in the case.  I think Judge Fulford correctly rejects the majority’s interpretation, but I disagree with his reasoning.

At the outset, it should be noted that Article 25(3)(a) is maddeningly vague: it simply provides that a person shall be criminally responsible for an international crime if he “[c]ommits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible” (emphasis mine).  Lubanga was charged with responsibility for the conscription and enlistment of child soldiers by committing that crime “jointly with another” — co-perpetration.  But what qualifies as co-perpetration?

The obvious solution for the Trial Chamber would have been to hold that co-perpetration under Article 25(3)(a) is equivalent to JCE I at the ICTY, which is what the legal representatives of the victims advocated at the pre-trial stage.  Instead, the Trial Chamber followed the Pre-Trial Chamber (in Lubanga and in other cases) and held that co-perpetration differs from JCE I in that it requires the perpetrator to make an “essential” contribution to the common plan to commit a crime, whereas JCE I is satisfied as long as the perpetrator contributes in any way to the common plan…

Cheng Book Roundtable: Power in International Law (A Response to Professor Osofsky)

by Tai-Heng Cheng

With characteristic perspicuity, Professor Osofsky has offered a magnificent synthesis of my book and this week’s roundtable, all informed by her perspective about international law. I thank her for her remarks.

Professor Osofsky raises a question of how my theory would help less powerful decisionmakers in the international legal system. Let it not be mistaken, and Profssor Osofsky does not suggest, that my theory seeks unquestioningly to entrench or apologize for powerful decisionmakers.

Power can be used to good or bad ends. I would thus caution against knee jerk reactions against power disparities. Equal power in the hands of irresponsible or naïve decisionmakers can be just as dangerous as power concentrated in self-interested decisionmakers. In every international problem, a relevant question is whether the distribution of power promotes the relevant policy goals.

In order to identify and rectify inappropriate inequalities, a theory of law needs to recognize the role of power in international legal problems. Only then power can be managed and directed to good ends. That is one reason why my theory explicitly requires decisionmakers to think about effectiveness, among other considerations. Accounting for effectiveness does not mean jettisoning ideals. But it does require us to temper our ideals with a realistic sense of what is achievable.

Consider the challenges of self-determination, which I addressed most recently in a law review article, Why New States Accept Old Obligations, 2011 U. Ill. L. Rev. 1. A territorial community may have a legitimate normative claim to self-determination. But the territory may also be too small or too resource poor to ever become an economically sustainable state that is safe from foreign attacks.

In such situations, the best option within the realm of the possible might be an alternative configuration of independence that approximates, rather than literally achieves, the ideal of statehood. Puerto Rico, Andora, and small states that give up some autonomy to become part of the European Union, provide models. From one perspective, this proposal perpetuates current global power configurations. It may be wrongly criticized as post-colonial imperialism. From another perspective, this proposal may be the best hope for small territorial communities seeking independence from oppressive regimes.

Professor Osofsky also makes a useful suggestion that the implications of my theory on relatively weaker participants deserves further study. A fellow of the Institute for Global Law, Justice, and Policy, and I are currently researching what the Occupy Wall Street movement tells us about decentralized systems of law in general and international law specifically. There is much more work to do to test my theory against corporations, NGOs and other actors.

Professor Osofsky’s important research into the potential influence of city governments on global environmental issues also underscores how we must not neglect study of sub-state actors. If all politics is local, then so too is law – including international law – that is entwined with it.

In this final post from me in this Roundtable, please permit me to renew my thanks to Opinio Juris, Julian Ku, Ralph Wilde, Rob Howse, Chester Brown and Hari Osofsky for the invigorating conversations this past week. I have learned from their insights.

I would like to sign off with the same words that conclude my book:

The justification for international law does not depend on whether it is law. It depends on whether the international legal system is effective and good. . . . On final analysis, international law is what we make of it, for it is nothing more or less than the sum of our decisions.

If my book provides a framework to clarify our disagreements and find solutions, as we have begun to do in this Roundtable, then I have achieved what I set out to do.

Cheng Book Roundtable: The Importance of Perspective – Reflections on Additional Frontiers

by Hari Osofsky

[Hari M. Osofsky is Associate Professor and 2011 Lampert Fesler Research Fellow, University of Minnesota Law School and Associate Director of Law, Geography & Environment, Consortium on Law and Values in Health, Environment & the Life Sciences]

I am grateful for the opportunity to participate in this exchange over Tai-Heng Cheng’s ambitious and thoughtful new book, When International Law WorksOpinio Juris enhances the international law dialogue by providing these opportunities for more informal, timely discourse on important topics.

As the final commentator in this interchange, I have had the pleasure of learning not only from the original text, but also from the conversation about it. I will attempt in my remarks to build from some of those threads in addition to reacting independently to the text. Like other participants, I will respect the form of this forum and not try to attempt a comprehensive analysis of the book. Rather, given the book’s grounding in the New Haven School’s policy-oriented jurisprudence, I will focus my remarks on how that approach’s ideas about participants in the international order and internal and external perspective, as well as the interactions between New Haven School and TWAIL scholars, might provide fertile ground for this book’s approach to be applied in additional ways.

Before considering such new frontiers, however, I want to acknowledge what this book achieves. First, at a conceptual level, it engages a staggering array of international legal theory and some of the most polarized debates within that to make a constructive contribution to a deeply fraught dialogue. Whether or not one agrees with all of the book’s precepts—as this interchange already represents, the book and its author invite an array of perspectives and thoughtful disagreement—it represents an important effort to move the conversation about the role of international law forward. Second, and more practically, it situates that theory in a diverse array of contentious and critical international legal issues and provides an approach for analyzing how a number of key decisionmakers have and should interact with them. Its analysis provides an opportunity to revisit past and current controversies and examine them through a new lens.

Cheng Book Roundtable: When Should a Court Not Decide (A Response to Professor Brown)

by Tai-Heng Cheng

I thank Professor Brown for his further application of the justificatory theory to the ICJ’s advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, another incident not covered in my book. I am glad he finds the justificatory theory useful in explaining the Court’s decision. As Professor Ku mentioned earlier this week, one test of the value of a theory is how well it explains the subject matter of the theory.

Professor Brown also rightly points out that the Court caused some difficulties in the Nuclear Weapons decision. It did not greatly clarify the law.

But other decisionmakers can also express a view on what they think the law is or should be, if the question is urgent enough. The UN General Assembly had already expressed its general views on the issue through non-binding resolutions. In a concrete problem that threatens international peace and security, the UN Security Council could issue a binding Chapter VII resolution.

But the advisory opinion in the Nuclear Weapons case and the decision in the Nuclear Test case raise a broader question of whether and when the ICJ should not decide a dispute.

In a prior book, State Succession and Commercial Obligations, I suggested that the ICJ’s refusal to seize jurisdiction in in East Timor Case was, realistically speaking, the closest it could get to an ideal outcome (pp.178-87). By not deciding that dispute between Australia and the absentee colonial ruler of East Timor, Portugal, the Court avoided disrupting the web of international and regional arrangements concerning East Timor, on which countless people in many countries involved in those arrangements relied, without accepting, as a legal matter, Indonesia’s occupation of East Timor.

In the Nuclear Weapons case, the ICJ’s refusal to definitively opine on the legality or illegality of the use of nuclear weapons was also perhaps appropriate. The paragraph that Professor Brown quotes was adopted by the court with seven votes in favor and seven against, by the President’s casting vote. It is difficult to imagine the court reaching any other conclusion, given its split.

In any event, the ICJ did issue guidance. It recognized the inherent right of states to self-defense, that the the UN Security Council, as the principal organ responsible for international peace and security, could issue binding Chapter VII resolutions, and that states can and have made collective decisions about nuclear weapons through treaties.

Another question to ask about the Nuclear Weapons case is whether the Court should have accepted the request for an advisory opinion. Article 65 of the ICJ Statute gives the Court discretion to decline such requests. In the request made by the UN General Assembly, the preamble repeatedly emphasized opposition to the use of nuclear weapons and completely ignored any competing considerations. This is understandable, because most General Assembly members states do not have nuclear weapons. But should the Court have accepted a request that so clearly sought to use a court of law, whose legitimacy depends on it being perceived to offer neutral advice, for the political purposes of some states to engage in what we now call “law-fare”?

From one point of view, the issue is not just whether the ICJ’s Nuclear Weapons advisory opinion caused palpable difficulties, but whether it should have accepted the request for an advisory opinion at all.

Cheng Book Roundtable: Should ICJ Judgments Be Effective? (A Reply to Professor Cheng)

by Chester Brown

[Chester Brown is Associate Professor at the Faculty of Law, University of Sydney]

Thanks to Professor Cheng for his thoughtful response. As a follow-up comment, this discussion should not conclude without mention of another hard case, being the International Court of Justice’s advisory opinion in Legality of the Threat or Use of Nuclear Weapons. In its advisory opinion of 8 July 1996, the ICJ (in)famously held that

in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.

The ICJ’s non liquet goes several steps further than a finding that it lacked jurisdiction, or that the claim was inadmissible (as was the result in the Nuclear Tests cases). The ICJ’s finding that it could not decide the issue would appear to bring together the two issues I raised in my post yesterday; when should issues of (i) morality, and (ii) effectiveness, feed into questions of treaty interpretation (or even finding the applicable law)? This justificatory framework would appear capable of explaining this outcome (just as it might be used to explain the result in the Nuclear Tests cases), but the difficulties posed by this case were palpable.

Lubanga Decision Roundtable: Lubanga and the Control Theory

by Jens David Ohlin

[Jens Ohlin is Associate Professor of Law at Cornell Law School]

Cross-posted at LieberCode.

So the ICC has released its first verdict and it only took 10 years.  Most media reports are concentrating on the substantive crime – the use of child soldiers – because that issue has suddenly gained popular currency with the Kony2012 viral video.

But the Lubanga decision is also notable for the open disagreement between the judges regarding the mode of liability in the case.  Although all three judges agreed that Lubanga was a co-perpetrator, Judges Benito and Blattmann adopted Roxin’s Control Theory of Perpetration, while Judge Fulford rejected the Control Theory, becoming one of the few ICC jurists to express serious concerns about the doctrine.

To recap for those readers who aren’t as obsessed with modes of liability as I am: The Control Theory was developed by the German criminal law scholar Claus Roxin in the 1960s, and was discussed with approval by George Fletcher in Rethinking Criminal Law.  It was influential in German criminal law circles but largely ignored in the United States, despite Fletcher’s extensive discussion of it in Rethinking.  Roxin himself created an organizational version of the doctrine after the Eichmann trial, thus demonstrating the theory’s application to mass atrocity.  The first significant judicial application of the theory came during the German Border Guard Cases after German reunification.

In its earliest days, the ICC Pre-Trial Chamber decided against applying the ICTY doctrine of Joint Criminal Enterprise that was closely identified with Cassese, and instead adopted Roxin’s Control Theory of Perpetration.  It is therefore not surprising that the Lubanga Trial Chamber confirmed this approach, though the dispute between the judges on this point demonstrates that the Control Theory still has its detractors.

Specifically, Judge Fulford complained about the hypothetical and counterfactual reasoning required by the control theory – a point that myself, Thomas Weigend, and plenty of others have made before.  Because the control theory requires a finding that the defendant performed an essential contribution, one has to decide if the crime would have still occurred in the absence of the defendant’s contribution – hence the notion of “essential.” This is, necessarily, a counterfactual question, and the theory also gives too little guidance about how different the counterfactual crime must be before we declare it to be a different crime altogether, and therefore whether the defendant’s contribution was essential or not.  These questions clearly weighed on Judge Fulford, leading him to conclude in his concurring opinion that the Control Theory created insurmountable problems for structuring ICC cases.

However, Judge Fulford also had another objection to the Control Theory – one that I cannot subscribe to.  Fulford complained that the control theory was being transplanted from another legal culture – Germany – where the distinction between principals and accomplices is of central concern, in particular because the statutory sentencing ranges for principals and accomplices differ significantly. Consequently, it really matters in Germany if the defendant is convicted as a principal or an accomplice.  At the ICC, though, there are no statutory sentencing guidelines, so the distinction between principals and accomplices is of no practical consequence.  Or so says Judge Fulford.

I cannot subscribe to this reasoning.  If there is a defect here, it is a defect in the ICC scheme on sentencing.  The Rome Statute ought to have a more rigorous methodology for dealing with sentencing, but it does not.  But even if that never changes, and judges retain full discretion to decide sentencing based on the individual circumstances of the case, the distinction between principals and accomplices still has enormous value.  It’s part of the concept of fair labeling – i.e. that the law, and in this case the substantive doctrine of criminal law, should capture a defendant’s true and accurate culpability by applying the correct legal categories to him.  A system that eviscerates the distinction between principals and accomplices fails to live up to the principal of fair labeling.  I won’t belabor the point here, since it is the subject of a forthcoming exchange between myself and James Stewart in an upcoming OJ symposium sponsored by the Leiden Journal of International Law.

One final point on precedent, a subject that I have started discussing recently at LieberCode.  Although Judge Fulford rejected the control theory, he refused to apply his “plain reading” version of co-perpetration in this case.  His rationale for this refusal was that to do so would be prejudicial to Lubanga, since Lubanga structured his defense around the Control Theory as it was expounded by the Pre-Trial Chamber.  To do otherwise would violate the fair trial rights of the defendant.

This argument strikes me as curious indeed.  If Pre-Trial Chambers are going to give detailed exegesis on matters of law, which then apparently become the “law of the case” even if the Trial Chamber disagrees with them, then the law becomes static with more limited opportunities for revision.  Of course, Fulford’s argument is presumably asymmetrical, in the sense that he is fine with changing the law if it benefits the defendant, but not if it prejudices him.  Still, is Fulford suggesting that the same rationale would bind the Appeals Chamber in this case?  Under this rationale, the ICTY Appeals Chamber should never have pronounced the JCE doctrine during the Tadic appeal.

Cheng Book Roundtable: Should ICJ Judgments Be Effective? (A Response to Professor Brown)

by Tai-Heng Cheng

I am grateful to Professor Brown’s careful summary of the thesis of When International Law Works.

I should, however, make a few clarifying points about my analysis of some international incidents. Professor Brown, with gentlemanly understatement, notes that “some will have their eyebrows raised” by my analysis.

Regarding Loewen v. United States, I confess I am rather ambivalent about the award. In earlier scholarship, I excoriated the NAFTA award. In that dispute, a Canadian company brought NAFTA claims against the United States after a Mississippi court permitted racial biases and other due process violations to infect the trial involving the Canadian company. Nonetheless, the Loewentribunal declined jurisdiction against the United States on highly technical grounds.

In When International Law Works, I revisited the Loewen award to see if it is completely beyond the pale under my justificatory theory. I concluded that if it is true that the U.S. judge appointed to the tribunal had ex parte communications with the U.S. Department of Justice, there can be no redemption for the award.

But if this allegation is untrue, and if one accepts that the tribunal’s legalist reasoning is not contrary to applicable laws (even if it strained their interpretation), then perhaps considerations about the long-term viability of NAFTA, as well as the impact of an adverse decision against the United States under the political climate prevailing at that time, might properly come into play.

Cheng Book Roundtable: Dr Chester Brown responds to Professor Cheng

by Chester Brown

[Chester Brown is Associate Professor at the Faculty of Law, University of Sydney]

In international life, decision-makers face difficult problems on a regular basis. What should decision-makers do, for instance, when international rules that “promote minimum world order and universally-desired values” run counter to, or threaten, “basic values or essential interests of communities” that those decision-makers serve (p. 2)? Are decision-makers entitled to disregard, or disobey, such international rules, or must they comply with them?

This is the immensely practical but also theoretically complex question confronted by Professor Cheng in his book. For Professor Cheng, such difficulties cannot be resolved by the persistent debate as to whether “international law is really ‘law’”. He is highly critical of that debate, and dismisses those who continue to engage with what David Harris describes as a “standard sherry party question” (Cases and Materials on International Law, p. 5) as not providing “all the reasons for obedience or disobedience” (p. 2). Cheng sees the real issue as being “what decision-makers should do about international law, whether or not it is law” (p. 2). The book addresses this issue through the lens of various “decision-makers”, being international judges (chapter 4), arbitrators (chapter 5), regulators (chapter 6), legal advisers (chapter 7), and officials (chapter 8).

The essential thesis of the book is that when such decision-makers disobey international law, they “ought not to claim a unique exception for themselves”, as that only serves to encourage others to follow suit and act inconsistently with the relevant rule; rather they should “explain their reasons for disobedience”, in order to permit other decision-makers to decide if those reasons have any validity, and expectations of appropriate conduct for the future can be adjusted (p. 2). Professor Cheng refers to this as a “justificatory framework to help decision-makers consider relevant prescriptions and what they ought to do.” The approach is described as “justificatory” as it will assist in “shaping the international legal system to more effectively achieve good outcomes in international problems and to provide reasons to promote and obey prescriptions” (p. 13). In particular, in providing reasons for complying or not complying with a particular rule, decision-makers can avoid “arbitrary feedback loops” (p. 15). Professor Cheng argues that “[t]his process can help adjust the international legal system to contemporary realities while avoiding unjustified disobedience and disruptions” (p.2). It is key to the book’s thesis that law is characterised as an “interpretative process intertwined with morality” (p. 16); this approach is perhaps unsurprising, as Professor Cheng is a product of the New Haven School, having studied under Professor Reisman at Yale University.

Cheng Book Roundtable: Morality and Legalism in Judging (A Response to Professor Howse)

by Tai-Heng Cheng

My thanks to Professor Howse for his comments on When International Law Works. We have debated our respective views on state succession in our published scholarship for half a decade. Those exchanges have been intellectually rewarding to me, and so it is a pleasure to broaden our public discussions to international legal theory more generally.

Professor Howse accurately summarizes my view on judging. International judges, like other decisionmakers, should be guided by moral reasoning. The first moral obligation of judges is fidelity to legalism. Interpreting rules of law strictly is crucial as a moral matter because it promotes minimum world order. Further, the decisionmaking authority that states allocate to judges is not unbounded. It is limited to deciding legal disputes according to laws. It would thus be unethical for a judge to decide a dispute without regard to laws, or worse, based on his personal preferences.

But strict legalism, as Professor Howse points out and as I explain in my book, does not exclude moral reasoning about the content of the applicable laws and the practical consequences of applying them to the facts of the dispute.

When judges interpret treaties, applying moral reasoning is consistent with legal rules of interpretation. Although Professor Howse and I agree on this position, we get there by different routes.

In my view, Article 32 of the Vienna Convention on the Law of Treaties requires decisionmakers to turn to travaux when interpretation according to text in light of context produce a result that is obscure or ambiguous in meaning, or “manifestly absurd or unreasonable”. In most cases, in order to know if a result is absurd or unreasonable, in addition to other forms of analysis, a judge must engage in moral deliberation to know if the result would inadequately balance the values at stake or produce an outcome that shocks the conscience. Thus, moral reasoning is triggered in the rules of treaty interpretation throughout the process of interpreting, and not only after a final interpretation is reached.

I am a little unsure about what Professor Howse means when he says that the Vienna Convention’s requirement that treaties be interpreted according to their objects and requires the judge to connect her “own moral intuitions to the underlying morality of the treaty.” If a treaty explicitly provides in its preamble a purpose that does not optimize the competing values at stake, such as if an investment treaty was either one-sidedly in favor of investors or, conversely, host states, I do not think the “object and purpose” test allows the judge to rewrite the treaty.

I also think it remains to be seen to what extent Article 31(3)(c) brings in moral considerations through customary laws. Article 31(3)(c) requires judges to take into account, when interpreting a treaty, “applicable rules of law in relations between the parties.” In specific disputes, there could be a debate about which, if any, customary laws are applicable between the parties and that have not been displaced by the treaty at hand. In any event, moral considerations that are not expressed as customary laws cannot factor in treaty interpretation through Article 31(3)(c).

Returning to the situation where a judge, after applying moral reasoning, discovers that an interpretation of a treaty would lead to an absurd or unreasonable result, the question is what should he do next. If the travaux do not disclose a different interpretation, the judge cannot simply assign a more morally acceptable meaning to the treaty. But he may be able to displace the treaty if it violates jus cogens.

What if there are no applicable jus cogens and the judge must, if he is faithful to legalism, enforce the parties’ morally abhorrent treaty? That is a hard case. Here, the judge could dissent from the majority, append a separate opinion, or recuse himself (and explain why). In theory, there could be an extreme case where a judge’s moral obligations require him not just to recuse, but to reach a majority decision that corrects a gravely immoral treaty. In practice, it is difficult to think of such a paradigmatic extreme treaty that could not be corrected by prempting the treaty with jus cogens, as is required under the Vienna Convention.

The other hard case is where, after applying all the tools of legalism, the meaning of a treaty is still unclear. Here there may be no choice but to resolve that ambiguity through moral reasoning. I suspect judges already turn to exogenous considerations, whether they are aware of it or not. (Perhaps TWAIL and feminist scholars, and Professor Wilde, will agree with me on this point too). So we might as well apply moral reasoning – as opposed to preferences – in such difficult cases to avoid arbitrary decisions. The judge should also explain his reasons so that others can appraise the decision more fully. Other decisionmakers can then either accept or reject the decision. They can also decide whether or not to apply the reasoning to future disputes. Through this process of collective decisionmaking, the international legal system can evolve.

As Professor Howse points out, I tested my thesis against International Court of Justice decisions. I hope other scholars will test this framework in relation to other important courts, such as the International Criminal Court and the WTO Appellate Body.

In summary, legalist reasoning and moral reasoning should both factor in judging, but not in a haphazard or idiosyncratic way. Each constrains the other precisely to help judges avoid deciding cases based on their personal preferences or in an arbitrary manner. On this foundational point, I suspect Professor Howse and I are in hearty agreement.

Cheng Book Roundtable: Professor Howse Responds to Professor Cheng

by Robert Howse

[Robert Howse is the Lloyd C. Nelson Professor of International Law at NYU School of Law]

When International Law Works is a wide-ranging work with many important and original claims and arguments. Particularly congenial is the approach that the real world effects of international law be examined not through narrow studies of rule “compliance” but in a manner that takes into account the importance of the moral meaning(s) of international law. Professor Cheng’s colleague Ruti Teitel and I have pleaded for such a broader approach-transcending the fact/value distinction in a certain way-in our own recent scholarship (see particularly “Beyond Compliance: Rethinking Why International Law Really Matters.“)

In my first contribution to our exchange, I want to focus on one particular aspect of Professor Cheng’s argument: his assertion that international judges ought to be guided by moral considerations in their decisions. Professor Cheng seeks to reconcile such a view, inspired by Ronald Dworkin in part, with what he calls “legalism,” the importance of international judges carefully and faithfully applying the relevant legal material in order to solve a dispute.

According to Professor Cheng, exceptionally a careful and faithful application of the legal material will result in ambiguity; it is at this point that moral considerations may enter properly in order as it were to tip the balance in favor of one particular interpretation.

When we turn to the Vienna Convention on the Law of Treaties, however, we see that (at least with respect to conventional law) a different method is suggested where ambiguity remains after applying the normal sources of interpretation-namely, recourse to the travaux preparatoires, i.e. the evidence of the actual intent of the drafters. This raises the issue of to whom the international judge owes the duties that Professor Cheng describes–to the parties of the dispute, to all of the parties of a multilateral regime, to some ideal vision of international community, or perhaps to “humanity.” How moral considerations enter into international adjudication may well depend on the answer to this question of for whom and on behalf of whom the international judge decides.

Professor Cheng provides a partial answer in indicating that a function of the international judge is to clarify and develop the law beyond the settlement of the dispute at hand–thus her duty is not as such limited to the parties to the dispute. To revert to the case of conventional law, one of the aspects of interpretation according to Vienna Convention Art 31 is the consideration of the object and purpose of the treaty. Here, arguably, the international judge must already connect her own moral intuitions to the underlying morality of the treaty as disclosed by its object and purpose and, to go even further, its relation under 31.3(c) to other relevant rules of international law applicable between the parties, which non-controversially would include ius cogens as well as (normally) custom, at a minimum.

Even aside from 31.3(c), as Bruno Simma suggested in his opinion in Oil Platforms, treaty interpretation exists within a broader normative framework, a more general universe of international legal norms, which may be held together by a core morality of the international system.

I raise these points because I think it is important that Professor Cheng’s argument not be understood as saying that where law runs out the judge may engage in a Schmittean form of decisionmaking, based on whatever personal commitments she has. By bringing morality into interpretation at an earlier stage, one may avoid what appears to be a jettisoning of legalism at a later stage in the process of decision.

This relates to the need for a persuasive answer to the notion that legalism always on its own generates ambiguous or contingent/under-determined outcomes and therefore that in fact the “norm” is a decision based on the moral or political or gender or class biases of the decider. Here I think Professor Wilde’s remarks about TWAIL and feminist scholarship are quite pertinent.

Professor Cheng’s account of international adjudication understandably focuses on the ICJ. He appears to see adjudication by the WTO Appellate Body more through the prism of arbitration. And yet with unqualified compulsory jurisdiction, an explicit treaty-based mandate to clarify the law, and the Appellate Body’s strong assertion of the precedential weight of its decisions in the context of the multi-phased zeroing dispute, the AB is perhaps more of a “court” than the ICJ itself. And it would be valuable to consider the application of Professor Cheng’s view of international judging to the international criminal tribunals. An understanding of the morality of international criminal responsibility arguably pervades the interpretative choices of the judges, and is not limited to cases of legal ambiguity as such.

But it is refreshing to see a scholar who is deeply implicated in the international legal world, including as a practitioner and arbitrator, take issue with the uneasy combination of amoral positivism and unprincipled policy pragmatism that constitutes the dominant world view of a still important species of “mainstream” international jurist.

Breaking: Lubanga Convicted by the ICC

by Kevin Jon Heller


Today, International Criminal Court (ICC) judges in The Hague delivered the Court’s first verdict—a finding of guilt against former Congolese warlord Thomas Lubanga.

Prosecutors accused Lubanga of the war crimes of conscripting, enlisting, and using children under the age of 15 years for combat purposes while he served as political head of the Union of Congolese Patriots (UPC) rebel group in the Ituri region of the Democratic Republic of Congo (DRC). Lubanga denied all allegations against him, insisting that he gave orders for children not to be involved in combat and that prosecutors had influenced witnesses to lie against him.

The ICC judges ruled that the prosecution proved beyond reasonable doubt that Lubanga is guilty of the crimes charged. Judge Adrian Fulford, Presiding Judge of the Trial Chamber, in delivering the verdict said that there was reasonable evidence to believe that Lubanga was involved in a recruitment drive for his UPC rebel group and that such drive included conscripting children and using them for combat purposes. The judges also found that Lubanga personally used children as his bodyguards.

The judges agreed with the defense on allegations that the prosecution had delegated its investigations to local intermediaries in the Democratic Republic of the Congo and that these intermediaries manipulated and influenced some witnesses to lie against Lubanga. The evidence of these prosecution witnesses were in doubt and were therefore disregarded by the judges. On the strength of other prosecution evidence, including a video footage of Lubanga addressing children at a UPC training camp, the judges found that Lubanga is guilty of the charges against him.

The verdict is not particularly surprising: the evidence against Lubanga was overwhelming, and the OTP — for reasons that still have never been adequately explained — declined to bring more serious charges against him, even though he had been facing murder and torture charges in the DRC.  It is good news, though, that the verdict was unanimous; more than one insider predicted that Judge Fulford would dissent.  (Note, though, that there is a separate opinion by Judge Fulford and a dissenting opinion on a point of law that does not affect Lubanga’s criminal responsibility by Judge Benito.)

Of course, no ICC prosecution would be complete without at least something that makes Luis Moreno-Ocampo look bad.  The OTP handled the intermediaries terribly, at one point raising the specter of Lubanga being released.  I’m glad that the Court did not take such a drastic step — but I’m also glad that it acknowledged that the intermediaries deliberately encouraged witnesses to perjure themselves.  That is a clear indication the judges took the defense’s arguments seriously.

Lubanga’s sentence will be imposed at a later date.  Most articles say that he could receive a life sentence, but I don’t think that’s true.  According to Article 77 of the Rome Statute, the maximum penalty for an ordinary crime is 30 years imprisonment, with a life sentence being possible only “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.”  To sentence Lubanga to life imprisonment for a crime that does not even require death would set a very bad precedent; if recruiting child soldiers is so grave as to justify a life sentence, what international crime would deserve a lesser sentence?

In any case, it’s very unlikely that Lubanga will receive even the maximum sentence for an “ordinary” crime. A good friend has guessed that he will be sentenced to 10 years; I’m guessing 15.  Readers, shall we start a pool?  The winner will receive an official OJ coffee mug — on the condition that the blog ever commissions one.

Congratulations, ICC!

PS. You can download the judgment here — all 650+ pages of it.

Cheng Book Roundtable: Are There Universal Values? (A Response to Professor Wilde)

by Tai-Heng Cheng

Professor Wilde’s comments are, as always, most thoughtful. If I understand the thrust of his post correctly, Professor Wilde is concerned that if I am to present a theory built on universal values, then I should examine carefully if the values I identify are indeed universal and if other important values are left out. In particular, Professor Wilde suggests that that I marginalized the TWAIL and feminist prespectives.

Professor Wilde correctly points out that I do not spend as much of Chapter Two discussing TWAIL and feminist theories as I do other theories. That is because the purpose of Chapter Two was to identify different conceptions of international law, not the values that are favored in each theory. TWAIL and feminist theories do not claim to present conceptions of international law that are different than positivism, international legal process, international relations approaches, or policy oriented jurisprudence. They instead emphasize different values. Thus while TWAIL and feminist theories are hugely important for their normative insights, they were not highly relevant to the research goals of Chapter Two.

This explanation of what I aimed to achieve in Chapter Two does not fully address Professor Wilde’s critique that the values I favor are not necessarily universal. He claims that “many in the world” would not find “global banking standards and agreements that enable capital to move across borders” to be “universally desirable.”

I find this supposition puzzling. Aside from irrational actors, I suspect that everyone would agree that the ability to move capital and banking standards are a good for minimum world order. Where people disagree is on what those standards should be, and whether capital is properly deployed.

But that is not a disagreement about the existence of banking standards or the ability to move capital per se. In policy-oriented terms, that is a disagreement about maximum world order, not minimum world order. I freely acknowledge that what maximum world order should look like remains indeterminate. That may be a question more appropriate for political discourse rather than legal process.

In Professor Wilde’s view:

We have to put issues of economic, social and political inequality and power imbalances at the very centre of thought about international law.

I do not disagree with this statement of some of the goals of international law. I urge Professor Wilde and readers to consider whether I have adequately accounted for these goals in my studies of incidents, ranging from ICJ’s resolution of a territorial dispute between Singapore and Malaysia to NATO’s bombing of Serbia to prevent genocide in Kosovo.

I also agree with Professor Wilde that there are scholars who believe that “building on the existing international legal and political system fails to account for the way in which the system is constructed so as to create impediments to [global justice].”

My response to this view is stated in the penultimate paragraph of my book:

This book begins where it begins, with the politics of theorizing. The account of the international legal system offered here has political consequences if decisionmakers adopt it. It rejects a blanket disapproval of international law and so will not resonate with trenchant exceptionalists or other scholars who radically challenge existing international power structures reflected in the international legal system. It also distances itself from an extreme liberal view that international law ought to constrain executive power even where acute national interests are at stake. Hopefully, most readers will agree with this book’s rejection of those extreme views.

Cheng Book Roundtable: Predicting, Explaining and Guiding (A Response to Professor Ku)

by Tai-Heng Cheng

I am glad that there is very little distance between me and Professor Ku. We both agree that legal theory does not have to be predictive to be successful. In this regard, Professor Ku finds my theory compelling “as a matter of politics and policy.”

Professor Ku implies, however, that may have set too low a bar in attempting to present an approach to international law that guides rather than controls. He contrasts my approach to positivisim, which he says “claims to control,” and rationalism, which he says “claims to predict.”

I wonder if Professor Ku assigns too much to the goal of positivism. In 1999, in the American Journal of International Law, Bruno Simma wrote:

Relying on a positivist conception of law does not necessarily imply subscribing to the view that there is only one correct answer to any legal problem. Rather, it means that we do not give up the claim to normativity and the prescriptive force of law. In many cases, law does provide guidance regarding what to do or not to do.

If one accepts Judge Simma’s summary of modern positivism, then positivism, like my theory, aims to “guide.” The relevant question is then not whether the goal of guiding is too modest, but whether each theory does a good job guiding.

I also wonder if Professor Ku’s description of rationalism’s goal is shared by the scholars he identifies as leading that field. Eric Posner and Jack Goldsmith explicitly state in The Limits of International Law:

We do not make fine grained predictions. . . . Our goal is, rather, to give a simple but plausible account for the various features of international law . . . in terms of something other than a state’s propensity to comply with international law.

In other words, rationalist theories and my theory try to explain how the international legal system functions or fails. The reader will have to decide for him or herself whether the highly-contextual accounts of international incidents in my book provide useful explanations of decisions and outcomes.

Cheng Book Roundtable: When International Law Works – but for whom?

by Ralph Wilde

[Ralph Wilde is a Reader at the Law Faculty at University College London, University of London]

It is a great pleasure to participate in the debate about this important and ambitious book. Tai-Heng Cheng deserves our attention for his impressive attempt to grapple with the fundamentals of international legal theory, and to do so as so few others seem willing to nowadays, with reference to a wide range of case studies involving the actual application and enforcement of international law.

As befits the Opinio Juris blog format, what follows is not a comprehensive review, but rather a series of brief and impressionistic observations about particular aspects of the book. I have chosen to address some of the fundamental assumptions from which the thesis proceeds, and to raise some questions about them, in the knowledge that this will be followed by posts from others, including responses from the author, which provide an opportunity for my views to be challenged and supplemented by comments on different aspects of the book.

Tai-Heng Cheng makes his argument in the context of certain recent US debates purporting to address the fundamentals of international law. Specifically, what he describes as the ‘conservative’ critiques offered by Goldsmith and Posner, and the ‘liberal’ responses to such critiques from scholars such as Guzman and O’Connell. Cheng seeks a return to the ‘policy science’ or ‘New Haven’ theory of international law, in the tradition of McDougal, Lasswell, Reisman and Higgins, which focuses on the process whereby decision-makers in the international system arrive at choices informed by mutually-shared expectations about appropriate conduct, rooted in shared, universal values.

Cheng correctly identifies the significant common ground in the recent US theoretical debates: that, in their view, international law can sometimes be effective, and can sometimes be just/moral. His thesis seeks to bring to bear the ‘process’ understanding of international law, ‘to make the international system as effective and good as it can be’ (page 8). In this way, then, although Cheng is drawing on theoretical ideas that have a much older provenance than the post-millennial US theoretical debates, he is re-stating these ideas partially as a response to the debates, as compatible with the points of agreement within them, and, moreover, as a way of ‘moving the discussion forward’ by seeking to realize more of international law’s potential revealed by the points of agreement. We are being offered a way of thinking about international law that allows us to take the most useful insights from recent US theoretical debates, and also allows us to move on from the seeming impasse that these debates, read in isolation and on their own terms, seem to suggest.

In his introduction, Tai-Heng Cheng claims that international law promotes universally-desired values ‘such as global banking standards and agreements that enable capital to move across borders’. Because these values are universally-desired, decision-makers ought generally to obey them. However, some international law prescriptions threaten basic values or essential interests, such as those which ‘prohibit a government from taking measures necessary to defend a people against a foreign threat’. In this case, ‘decision makers may legitimate choose to disobey’ them. It is, of course, a cliché to critique the New Haven school for conceiving norms to be compatible with ‘universal’ standards when they might more correctly be understood to reflect one view of interests conceived as of particular benefit to the US (see, e.g., Professor Cheng’s discussion of these critiques at pp 50-3, 65, 70-1). Indeed, there are many in the world who would not regard the first set of Tai-Heng Cheng’s standards as universally desirable, and also those who take the view that the international legal rules on the use of force referenced in the latter example do not manifest the problems indicated and, if anything, are capable of providing justification for recourse to war that is excessive and therefore illegitimate.

It is possible to ignore, or at least downplay the significance of, these and other alternative perspectives if one chooses to start, as Tai-Heng Cheng does, from the common ground assumed in the recent US theoretical debates. Indeed, Professor Cheng sometimes universalizes out his diagnosis of the recent debates, to contemporary international legal thought generally. He explains that he is ‘starting from the points of agreements among scholars that international law is partially effective and partially good’ (p. 8). This starting point is, of course, necessary for the enterprise of accentuating the positive.

As Tai-Heng Cheng acknowledges, however, the state of contemporary international legal scholarship is much richer and diverse than an exclusive focus on the recent US ‘conservative’/’liberal’ debates would suggest. It is one thing to argue that US elites might be able to agree on what is ‘effective and good’ about international law as far as US interests are concerned, and, indeed, such an argument might invoke Professor Cheng’s characterization of the rules on banking standards, capital flows and the use of force. But this is a story about agreement between certain scholars in the US. International legal thought more generally does not manifest agreement of this sort.

Tai-Heng Cheng claims that ‘every careful scholar would observe that international law can be effective and just, but is not always so’ (page 8). But some of these scholars are so doubtful as to the prospects for greater effectiveness and justice that they would regard Professor Cheng’s enterprise of seeking to make it more so as a futile and dangerous diversion from activity that has a greater prospect of bringing about global justice. Tai-Heng Cheng claims that ‘every reasonable scholar would also agree that it would be better for international prescriptions to be more moral than less moral’ (page 8). But some scholars would also argue that Professor Cheng’s assumption that it is possible to realize this aspiration by building on the existing international legal and political system fails to account for the way in which the system is constructed so as to create impediments to this enterprise.

The book offers an impressive, sure-footed and wide-ranging discussion of international legal theory. However, when it comes to feminist theory, and post-colonial or third world approaches to international law (TWAIL), two of the most important developments in international legal thought of the past decades, there is simply a footnote reference which acknowledges that such approaches ‘question the normative underpinnings of international laws as insufficiently promoting the interests of certain groups’, but chooses not to discuss them further because they ‘do not address the choices that must be made in conceptualizing international law’ (page 47 note 125). Yet in the chapter containing that footnote, the book does mention the critiques made by others about the particularity of the values asserted to be ‘universal’ in policy science theory. When the canonical texts of policy science scholarship were being written, there was no TWAIL or feminist scholarship in international law. The situation is very different now. Whereas then the critiques of policy science’s claim to promote universal values played out largely in terms of discussions of US hegemony (which Cheng points out resurfaced in the critiques by some like Orakhelashvili in the context of the war on terror), surely now account needs to be taken of the much broader critiques that could be made drawing on feminist and TWAIL ideas, which have exposed brilliantly how in various ways tropes of universalism in international law have been highly effective in concealing the way in which structures and norms do not serve the interests of all people equally and fairly.

Throughout the book, as befits the policy science orientation, Professor Cheng hopes to improve how international law will address ‘international problems’. But TWAIL and feminist scholarship reminds us that we must interrogate whose interests are at stake when particular problems are identified, classified, ranked in importance, and ‘responded’ to. Here is the list of ‘urgent problems’ that ‘stand out’ to Tai-Heng Cheng: ‘internecine wars and Islamic terrorism, on the one hand, and disruptions to global financial markets and the world economy, on the other’ (p 71). Of course, it is trite to say that we can all disagree on which problems deserve to be in this special category, and easy to suggest candidates that are as important, if not more so than, those posited. The point is that we need to acknowledge that what is valuable for some can be catastrophic for others and, as a result, any attempt to theorize a system of international law that takes as its starting point certain accepted values or problems needs to interrogate at length the question of whose interests are at stake.

We have to put issues of economic, social and political inequality and power imbalances at the very centre of thought about international law, given the legal system’s ability to be, and clear historical track record in being, more part of the problem than the solution on these issues. In other words, even if international law ‘works’, for whom does it work?

Call for Proposals: International Law Weekend 2012

by Peggy McGuinness

I interrupt this wonderful discussion of Tai-Heng Cheng’s new book for this important announcement from Professor Ruth Wedgwood, President of the American Branch of the International Law Association (ABILA) regarding International Law Weekend 2012, which takes place Oct. 25-27.  As a participant at ILW 2011, I can attest that Professor Wedgwood has injected new life and significantly broadened the sponsorship of this annual NYC event.  Here’s her announcement:

After last year’s gathering of the flock (with over 1400 attendees and some 40 co-sponsors), we’re ready to do International Law Weekend again, in a collaboration between the International Law Association’s American Branch and the International Law Student’s Association.

Dates are October 25-27, 2012, to be held at the Association of the Bar of the City of New York and at Fordham Law School.

Some key language from the call for proposals — with due date of April 13, 2012:

“The unifying theme for this year’s meeting is to explore the mechanisms of change in international law. Panels may focus on key regions undergoing particularly dramatic change, for instance in the Middle East or China, and subject matter areas undergoing rapid change, such as tariffs and trade, human rights and humanitarian intervention, immigration, labor, public health, sustainable development and the environment.

This year, we plan to have a broad array of public international law topics, but will also have dedicated tracks of private international law topics in each program slot. Thus, we welcome suggestions of cutting-edge issues in the international aspects of corporate, tax, securities, and investment law, as well as international arbitration and other forms of international dispute resolution.

Equally welcome are topics in public international law and institutions, including issues regarding the United Nations, human rights, peacekeeping, humanitarian intervention, arms control, the development of regional and sub-regional organizations, etc. We also encourage suggestions of varied formats, such as debates, roundtables, lectures, and break-out groups, as well as the usual practice of panel presentations.”

The full call for proposals here.  Deadline to submit is April 13.

Cheng Book Roundtable: How to Assess the Value of International Legal Theory

by Julian Ku

I agree with Professor Cheng that legal theory does not have to be predictive to be successful.  But I wonder if he sets the bar a bit too low. In his previous post, he writes:

Providing a framework of analysis to address international problems, to guide but not control, is perhaps the best that can be done. It may also be the most that ought to be done.

But two of the leading alternative theories that Professor Cheng discusses in his book claim to do more than simply guide. One, positivism, claims to control and the other, rationalism, claims to predict.

Cheng Book Roundtable: Should International Legal Theory Predict? (A Response to Professor Ku)

by Tai-Heng Cheng

Professor Ku’s review of When International Law Works is most insightful. I thank him for it.

His “short bloggish description” of its thesis is as clear a summary of my book as I’ve been able to muster in two sentences. I confess I will probably appropriate it when I present the book at Temple Law School later this week.

Professor Ku raises a good question about how predictive my “theory” is. Certainly theory in the hard sciences is often predictive. Many such theories are expressed as falsifiable hypotheses.

In contrast, law is a social phenomenon, and human beings that are involved in legal problems are autonomous decisionmakers. It may be possible to anticipate what others may do. But it is probably impossible to fully predict outcomes in international problems.

My goal is not thus to predict. My goals are to explain how the international legal system works and to help decisionmakers make decisions in international problems, in order to justify international law’s claim to regulate international matters. For scholars of jurisprudence, my “theory” seeks to guide decisionmakers in deciding, just as Dworkin’s theory in Law’s Empire seeks to guide judges in judging.

Professor Ku wonders, quite reasonably, whether my theory would have made any difference to the Bush administration policies on waterboarding. Without being a fly on the Oval Office walls, I cannot know how much room the administration lawyers had to influence policy, or what policy choices were realistically available to the President based on the information he received from his technical and political advisors.

But my theory would have helped the different decisionmakers assess more comprehensively the competing goals, including respect for the rule of law, national security, and human dignity, to come to a decision.

One might bemoan the lack of greater coercive force in international law. In many (but not all) international problems, such an aspiration would be unrealistic, given the absence of centralized global authority. Arguably, in many (but not all) international problems, it would also be normatively undesirable to remove the discretion of decisionmakers, given the lack of global consensus on values.

Providing a framework of analysis to address international problems, to guide but not control, is perhaps the best that can be done. It may also be the most that ought to be done.

I’ll end with a personal observation. Professor Ku has suggested that I am a “moderate proponent” of the New Haven School. I’m not sure I know what an immoderate proponent of policy-oriented jurisprudence looks like, if one exists.

What I do know is that the panorama when one stands on the shoulders of giants of the New Haven School is breathtaking. I hope through my book to share with the view with you.

Peter Berkowitz’s Unconvincing Justification of “Preventive” Self-Defense

by Kevin Jon Heller

In a previous post, I noted that Peter Berkowitz defended the legality of a U.S. or Israeli attack on Iran’s non-existent nuclear weapons program by invoking U.S. practice — and only U.S. practice.  He now has offered another defense of such an attack in response to an editorial by Bruce Ackerman in the L.A Times.  Unfortunately, Berkowitz’s second article is no more convincing than his first.

First, Berkowitz claims that “Article 51 of the U.N. Charter, which recognizes states’ ‘inherent’ right of self-defense, does not exclude preemption… Article 51 has always presumed a right of anticipatory self-defense that is significantly broader than the Webster test.” Berkowitz offers precisely one piece of evidence in support of that claim — a 1914 statement by Elihu Root, then a U.S. senator, at an ASIL conference.  That’s it.  Berkowitz does not even explain why, if the U.S. believed that the customary scope of self-defense extended well beyond Caroline‘s “imminence” standard, Webster would have specifically relied on that standard to criticize the British attack — which the British Foreign Minister later agreed was the correct one (see Ruys, 256).

Second, Berkowitz argues that “[w]hen the U.N. Charter was ratified in 1945, Article 51 did not change things. As esteemed Yale Law School scholar of international law, Myres McDougal, wrote in 1963 about the Cuban Missile Crisis, ‘There is not the slightest evidence that the framers of the United Nations Charter, by inserting one provision which expressly reserves a right of self-defense, had the intent of imposing by the provision new limitations upon the traditional rights of states’.” Not the slightest evidence?  Ruys convincingly rebuts Berkowitz’s argument in the second chapter of his book, painstakingly reviewing the drafting history of Article 51 and concluding (p. 66) that “[n]othing in the preparatory works suggests that Article 51 was merely perceived as an example of a broader, pre-existing and unimpaired customary right of self-defence. No explicit reference was made to pre-existing custom, nor to any alleged right of self-defence in circumstances not involving an armed attack.”  Moreover, here is what he says (p. 259) specifically in the context of preventive self-defense (and note the U.S.’s own position during negotiations)…

Cheng Book Roundtable: When Should International Law Do More than Work?

by Julian Ku

As I intimated in my introduction to this Roundtable, I was deeply impressed by When International Law Works (WILW).  Professor Cheng’s accomplishment is to make legal theory — even international legal theory – seem accessible, relevant and important.  This may not sound like much, but I challenge you to work your way through Austin, Hart or McDougal/Lasswell  and Koskenniemi and come up with a discussion as elegant as that which can be found in Chapter Two of WILW.

Professor Cheng positions himself as “moderate” exponent of the New Haven School’s policy-oriented approach to international law.  Rejecting efforts to offer a purely conceptual theory of international law, he argues that political decisionmakers should follow “prescriptions” (rules) according to procedures accepted by other decisionmakers.  In many, but not all, cases, this means that decisionmakers should follow formal “international law.” This sort-of-commitment to follow formal international law is undergirded by a moral commitment to world order and human dignity.

Cheng Book Roundtable: Why International Legal Theory Matters

by Tai-Heng Cheng

Americans are furious.  Officials are out of touch with the rest of us.  If we thought about it, we should be angry that officials do not take international law more seriously.  That is just another way that the people we send to Washington do not understand what we really need.

American workers whose retirement funds hold GM stock should want to be sure that international law protects GM’s ability to sell its cars and trucks in China.  In February, when GM sold a record 250,000 Buicks, Chevrolets and Cadillacs in China, its stock price rose almost 10%, helping to repair the retirement accounts of workers across America.

Military families should want to be sure that the U.S. government obeys international law.  We have over 2 million active and reserve military personnel.  When they come in harms way overseas, America’s military sons and daughters are more likely to receive the protections of international law if the United States extends the same protection to its enemies.

So when President Bush’s U.N. ambassador John Bolton argued that international law is not law, and that it is instead just a series of political arrangements, that was an early warning that our officials live in a different world than the people they are supposed to serve.

The Obama administration is not much better.  The State Department believes that international law is law, but it argues that it is legal for President Obama to use drones to kill suspected terrorists, even if innocent people around them are also killed. Even if international law is law, what good is it if our executive branch claims that it permits officials – not judges – to sentence people to death, including U.S. citizens, and to execute them in foreign countries?

It is not all bad in Washington.   But here it gets really confusing.  Our elected leaders seem follow informal international arrangements that are most certainly not international laws.  Take the BASEL III Accords.  Basel III requires banks around the world to hold more capital. But it is not a treaty.  Treaties are made by nation states through their consent.  BASEL III is an agreement among central bank governors.  Last I checked, Federal Reserve Chairman Bernanke spoke for neither the U.S. President nor Congress. Even though BASEL III is not a treaty, the U.S. government has begun to implement it.

Isn’t it ironic, don’t you think, that officials rain on international law, but follow informal international arrangements? What exactly is international law and what is its proper role in international problems?

My latest book, When International Law Works: Realistic Idealism after 9/11 and the Global Recession, offers a way to make sense of it all.  It helps to explain why Harold Koh, the State Department Legal Advisor, argues drones are lawful, but in his former life as an academic, Professor Koh, the human rights scholar, might have taken a different view.  The book also explains why bank regulators follow BASEL III even if it is not strictly law.

Crucially, the book is an attempt not just to explain international law, but to guide decisionmakers about what to do about it.

I will leave the details of my thesis to later posts.  For now, I offer thanks to Opinio Juris and the Roundtable contributors for their thoughts, and to you, the reader, for taking time to follow and to join this discussion.

Book Roundtable on Professor Tai-Heng Cheng’s “When International Law Works”

by Julian Ku

Opinio Juris is very pleased to host a Roundtable this week on Professor Tai-Heng Cheng’s recent book, When International Law Works: Realistic Idealism After 9/11 and the Global Recession (Oxford University Press).  The Roundtable will proceed throughout the week and feature a fascinating and diverse group of discussants.  Professor Cheng and I will kick off the discussion today, followed later this week by professors Ralph Wilde, Robert Howse, Chester Brown, and Hari Osofsky.  I will start by introducing our author:

Tai-Heng Cheng has been Professor of Law at New York Law School, where has taught since 2006. He is Co-Director of the Institute for Global Law, Justice, & Policy, and of the New York City International Economic Law Working Group. Professor Cheng has authored almost forty books, articles and essays on international law, international dispute resolution and international investment law.  His scholarship has been cited and relied on in the American Journal of International Law, the Yale Journal of International Law and the Harvard Journal of International Law, as well as by judges and counsel in the U.S. Supreme Court and federal appeals and district courts.  You can see the rest of Professor Cheng’s impressive record here.

Professor Cheng’s book is an ambitious contribution to the field of international legal theory, and, unlike many contributions to this field, the book is both lucid and insightful.  We are thrilled to have a chance to discuss his book over the next few days.

Kiobel and Extrajurisdictionality

by John Knox

[John Knox is Professor of Law at Wake Forest Law School]

The Supreme Court’s decision to send Kiobel back for reargument on whether the Alien Tort Statute allows courts to recognize a cause of action for violations of the law of nations in foreign territory will focus attention on the presumption against extraterritoriality, as Anthony Colangelo pointed out in his recent post here. Here are a few more thoughts to add to Anthony’s interesting analysis of that possibility.

For a couple of reasons, the presumption against extraterritoriality doesn’t apply neatly to ATS claims, as the Ninth and DC Circuits said in their 2011 decisions in Sarei v Rio Tinto and Doe VIII v Exxon Mobil. The presumption is a rule of statutory construction, but Sosa made clear that ATS claims are products of federal common law — the ATS just provides a basis for jurisdiction over the claims. Moreover, everyone seems to agree that the scope of ATS claims must include piracy, which means that the reach of the law must extend beyond U.S. territory.

For the Court to use the presumption to restrict ATS claims, then, it would have to introduce a new wrinkle or two. It could say that it applies to jurisdictional statutes (or at least to this one), or it could adopt the presumption as a prudential rule suitable for common-law claims. Once it found a basis for using the presumption, it could say that the presumption is overcome for the high seas but not for foreign territory, along the lines of the Kavanaugh dissent in Doe VIII. In itself, such an outcome wouldn’t be all that surprising – the Court has often manipulated the presumption in creative (albeit inconsistent and unpredictable) ways, most recently in its 2010 decision in Morrison, which for the first time grafted a “focus” test onto the presumption.

However, the Court’s decision may turn on a different issue. In the oral argument, Chief Justice Roberts asked whether allowing ATS claims arising in foreign countries would violate international law. In principle, I’m all in favor of construing the scope of federal law in light of international limits on jurisdiction – in fact, I argued a couple of years ago in the AJIL that the Court should replace its presumption against extraterritoriality with a new and improved presumption against extrajurisdictionality.

Could the Court apply such a presumption here? In his dissent in Sarei, Judge Kleinfeld argued that the law of nations simply prohibits jurisdiction over “foreign-cubed” actions – that is, actions by foreign plaintiffs against foreign defendants arising from torts committed in other countries – even if the actions arise from violations of universally recognized human rights norms. In fact, Judge Kleinfeld’s sources don’t support that conclusion. There isn’t a flat rule against universal civil jurisdiction over certain human rights violations – but neither is there a clear endorsement of the principle. The Restatement says that international law doesn’t preclude such jurisdiction, but in a massive 2006 report on extraterritorial jurisdiction, a task force of the International Bar Association said: “Considering that the concept of universal civil jurisdiction is relatively new, that there are methodological disagreements, that state practice can be and is interpreted in different ways, that recent developments demonstrate ongoing changes and evolution in state practice, and that scholarship in this area reflects conflicting views, the committee felt that it would be most appropriate to recognize that there is a degree of uncertainty with respect to the concept.”

Generally, the Court shouldn’t treat the lack of certainty as the equivalent of a prohibitory rule, especially if the Solicitor General adopts the position of the Restatement. There is a real likelihood, though, that even in the absence of a clear rule, the Court may use the complaints of countries such as the UK and the Netherlands to justify drawing in the scope of ATS claims.

As in Empagran, the Court may say that even if the claim has a connection with the United States, the connection must be strong enough to make the exercise of jurisdiction not “unreasonable.” Or it may base its decision on comity, as Germany’s amicus brief urges it to do.

Either way, the result may be a step backwards in the implementation of human rights law.

The Growing Tension Surrounding Humanitarian Intervention in Syria

by Claude Bruderlein

[Claude Bruderlein is the director of the Harvard Program on Humanitarian Policy and Conflict Research]

The deteriorating security situation in Syria has had dramatic consequences on the civilian population. While the international community debates different ways to respond to the violence against civilians and the rising humanitarian needs, a growing tension has emerged around the means and methods to provide humanitarian protection. On the one hand, protagonists of traditional humanitarian access, such as the ICRC, hope to establish consensual arrangements to provide relief to populations in need on the basis of an ongoing dialogue with the parties. On the other hand, proponents of a more robust international intervention, including several members of the UN Security Council, are calling for authoritative measures for the protection of civilians, in particular, the creation of “safe zones” or “militarized corridors” established by the Council, as securitized spaces of refuge and assistance in and around Syria.

These proposals illustrate divergent views about the role that the international community should play in this context. The call from ICRC President Jakob Kellenberger for a daily humanitarian truce is in stark contrast with arrangements proposed by commentators such as Anne-Marie Slaughter and by some members of the UN Security Council. The latest initiatives for the creation of “safe zones,” reminiscent of the “safe areas” of the former Yugoslavia, would be based on a decision of the UN Security Council providing credible guarantees of enforcement and military protection. Inspired by UN interventions in East Timor and Kosovo in 1999, such an initiative would aim to provide temporary security and life-saving assistance to populations in need. This option, however, has faced objections from China and Russia, two veto-wielding Security Council members, in view of the potential intrusion entailed in the creation of such zones, into the sovereignty of the host State.

Paradoxically, over recent years, actors on both sides of this debate have contributed to blurring the distinct character of their respective humanitarian approaches. In Darfur, Somalia, and Pakistan, protagonists of a consensual approach to humanitarian access became increasingly cognizant of the limited sustainability of such arrangements in internal armed conflicts, in which insurgents can gain tactical advantages from these truces or corridors, obtaining access to much needed resources. Consequently, to ensure the demilitarized and neutral character of humanitarian truces and corridors, humanitarian organizations have been calling not just for the consent of the relevant parties to humanitarian arrangements, but also for the deployment of an international, independent military presence facilitating and supervising the delivery of assistance in contested areas. Evidently, the discomfort among humanitarians grows as such military arrangements become intertwined with political and security agendas, as in the case of Libya.

The mobilization of the international community for the protection of civilians in Syria is therefore based on contradictory arguments: (1) humanitarian corridors depend in principle on the consent of parties for the delivery of relief to populations in need, implying that such assistance, to remain truly neutral, should not interfere with the parties’ political and security agendas; and (2) to be credible, humanitarian corridors should be based on a robust, international and regional intervention, short of a full R2P mandate, as a first step in a long-term stabilization, development, and transformation project.

UN/Arab League envoy Kofi Annan has been given the mandate to mediate among the parties on both political and humanitarian fronts, a fact that suggests a continued integration of humanitarian and political perspectives by the international community. Over time, humanitarian agencies and professionals will need to devise their own terms of engagement in these circumstances and be ready to conceptualize humanitarian arrangements that remain amenable to the parties and credible on their own terms. Likewise, UN Security Council members would gain by being more explicit regarding the requirements of setting up safety zones, as well as the limitations in the deployment and use of military forces for these purposes. Experiences in the former Yugoslavia, Somalia, and East Timor demonstrate the strategic importance of proper planning and resource mobilization to the success of these security operations.

Weekend Roundup March 3-9, 2012

by An Hertogen

If you have not been able to keep up with the stream of posts on Opinio Juris this week, we are pleased to offer you a weekend roundup. Three topics and a symposium fought for your attention.

First, the US Supreme Court hearings in Kiobel v. Royal Dutch Petroleum continued to provide food for thought, particularly after the Court’s order on Monday to re-open the argument on the specific issue of extra-territoriality. Following up on discussions last week, Julian Ku pointed to the importance of Sosa. Ken Anderson argued that a broad application of the ATS can have perverse incentives for investment decisions by Western companies in the developing world and involves difficult trade-offs. Anthony Colangelo argued that the presumption against extraterritoriality should not apply to statutes, such as the ATS, that “implement or authorize the implementation of international law”. Donald Childress addressed a broader question and asked where human rights cases would go when the federal courts close their doors for ATS claims. He originally presented his arguments at a UC Irvine conference on international human rights in state courts and under state law, which Roger Alford discussed here.

Second, two different perspectives on the legality of pre-emptive attack on Iran’s nuclear facilities were discussed by Julian Ku here and Kevin Heller here. Julian pointed out how factual disagreement affects the legal argument in the Iran War Scenario, referring to statements that an attack has already occurred, whereas Kevin provided a contrasting perspective on the imminence of Iran’s nuclear capabilities.

Third, following the announcement that AG Holder would address national security during a speech at Northwestern Law, a few posts dealt with the US government’s position on targeted killing. Deborah Pearlstein considered the speech an anti-climax, because of the many questions it fails to answer. Julian Ku posted that the speech helps the Obama administration “with respect to both popular and elite opinion”.

In other posts, Julian Ku questioned whether China is backing off its Maximalist South China Sea claims and pointed to an article about the US’ broad cyber jurisdiction while Ken Anderson pointed out Alan Kaufman’s review essay of Stephen C. Neff’s Justice in Blue and Grey.

On Thursday and Friday, we partnered up with the NYU Journal of International Law and Politics for an online symposium on their latest issue, an overview of which can be found here. Three panels focused on the question of the recognition to be given to LGBT rights in asylum law. The first panel focused on the lead article Queer Cases Make Bad Law by James Hathaway and Jason Pobjoy, who propose an alternative theory as to how claims by sexual minorities that need to practice self-repression to avoid serious harm can and should be approached under international refugee law. David John Frank, Sarah Hinger, Victoria Neilson, Connie Oxford and Lucy Yeatman provided commentary. The second panel focused on an article by John Tobin on the use of human rights concepts in the interpretation of refugee law. This panel featured comments by Dr. Hugo Storey and Bojana Asanovic and further reflections by John Tobin. Participants in the third panel, discussing articles by Jenni Millbank and Guglielmo Verdirame, were Rt. Hon. Sir Richard Buxton, S. Chelvan, Sabine Jansen, Jenni Millbank and Thomas Spijkerboer.

Next week, we have another interesting symposium lined up. From Monday to Friday, we are hosting a discussion on Professor Tai-Heng Cheng’s book When International Law Works.

In further book news, Julian Ku’s book, co-authored with John Yoo, was published and will be discussed on Opinio Juris later this spring.

Have a nice weekend!

The Problem with “Justice and Democracy”

by Julian Ku

There is much to admire in Alex Waal’s criticism of the international community’s kneejerk response to mass humanitarian atrocities.

Once an abstract obligation, stopping genocide has become a political project. Building on the humanitarian interventionism of the 1990s, a vast anti-genocide movement, largely U.S.-based, is stirring students and movie stars alike. Its figureheads are Gareth Evans, a former Australian foreign minister and the architect of the “responsibility to protect” doctrine, and Samantha Power, the author of “A Problem from Hell: America and the Age of Genocide,” who is now at the National Security Council. It enjoins “us” — that is, the United States and the United Nations — to lead the response to mass atrocities.

High from last year’s interventions in Libya and Ivory Coast, Evans wrote triumphantly in Foreign Policy last December that those missions brought “an end to most of the confused debates” about humanitarian intervention. The vision he, Power and fellow idealists share is to send the cavalry over the hill not only to stop any massacres but also to herald justice and democracy.

Waal points out that most mass atrocities do not always lead to endless mass atrocities.

In other words, even once they are under way, mass atrocities do not lead inexorably to bottomless massacres. The killers usually have political goals: They are determined to kill until they have achieved their objectives, not until there’s no one else left standing. Their use of violence can be excessive, but more important, it is often instrumental.

This creates an opportunity for negotiating an end to mass atrocities, through peace talks and with financial and diplomatic incentives and pressure. In recent history such deal-making has brought to an end, albeit often an imperfect one, massacres in Burundi, East Timor, Kenya, Macedonia and South Sudan.

Yet the idealists insist on pursuing a more ambitious agenda: nothing short of democracy and justice, imposed by military intervention. And this can undermine simply getting the killing to stop. For perpetrators, the prospect of foreign intervention and prosecution rules out the possibility for compromise. For rebels, it creates a perverse incentive to escalate ethnic violence so as to provoke an international military response.

Waal is no doubt attacking neoconservative idealists like Senator McCain, but they are not the only targets.  Waal doesn’t point the finger at the international criminal justice advocates.  He doesn’t point out that codifying the justice into legal obligations makes his preferred solutions, negotiated peace, much, much harder.  But he doesn’t have to.

This is not to say that demanding democracy and justice is always wrong. But both conservative and liberal interventionists (and “justice” advocates) need to remember that it is not always the right goal, either, if the pursuit of democracy and justice prevents the end of mass violence.

The Endless (Cyber) Jurisdiction of the U.S. Government

by Julian Ku

Fascinating article on how the U.S. government can, if it chooses, force almost any website with the “.com” suffix to shut down.

…the U.S. government… says it has the right to seize any .com, .net and .org domain name because the companies that have the contracts to administer them are based on United States soil, according to Nicole Navas, an Immigration and Customs Enforcement spokeswoman.

The controversy highlights the unique control the U.S. continues to hold over key components of the global domain name system, and rips a Band-Aid off a historic sore point for other nations. A complicated web of bureaucracy and Commerce Department-dictated contracts signed in 1999 established that key domains would be contracted out to Network Solutions, which was acquired by VeriSign in 2000. That cemented control of all-important .com and .net domains with a U.S. company – VeriSign – putting every website using one of those addresses firmly within reach of American courts regardless of where the owners are located – possibly forever.

I think the system works pretty well for now, and I doubt creating an international regulatory system will improve things. But still, when the U.S. exercises its power over these sites indiscriminately, it will increase calls to break the U.S. government’s semi-control over the Internet.

Two remarks on queer law and queer politics: Thomas Spijkerboer Responds to Jenni Millbank & Guglielmo Verdirame

by NYU Journal of International Law and Politics

Panel 3 of the NYU JILP Vol. 44:2 Online Symposium


Thomas Spijkerboer is professor of migration law at VU University Amsterdam. His publications in English include Gender and Refugee Status (Ashgate, 2000), Women and Immigration Law (Routledge, 2007, edited volume with Sarah van Walsum), and Fleeing Homophobia (VU University Amsterdam/COC Nederland, 2011, with Sabine Jansen).


A couple of weeks ago, a friend of mine who works for the Dutch asylum authorities told me an example of why he feels uneasy about the Dutch asylum policy towards gay Iraqi asylum seekers.  The short version, which is sufficient for our purposes, is that a man was badly beaten because he was (correctly) thought to be gay because he wore very tight jeans.  Even from this short summary, it is clear that this man was subjected to persecution on account of his being gay.  Such past persecution as a result of membership of a particular social group gives rise to a presumption of a well-founded fear of being persecuted in the future; state practice to this effect has been codified in Article 4(4) of EU Directive 2004/83.

The Hathaway/Pobjoy article gives ample arguments to deny this claim, allowing this man to return to a situation in which he has a well-founded fear of being persecuted on account of being gay.  The reason why they argue that this claim has to be denied is because “[w]here risk accrues only by virtue of an applicant having engaged in an activity no more than peripherally associated with sexual identity – including where risk arises from an imputation of sexual identity derived solely from having engaged in such activity – it cannot be reasonably said to be a risk that arises “ ‘for reasons of’ sexual orientation.”  Without any doubt, dressing in tight jeans is in the same category as the examples taken from Lord Rodgers’ statement which apparently so turns on Hathaway and Pobjoy: attending Kylie concerts, drinking exotically colored drinks, and doing boy talk.

The Hathaway/Pobjoy argument leads to denial of a refugee claim, which clearly should not be denied.  Something is fundamentally wrong with their argument.  I posit that their article has two problems.  The first is an incorrect application of refugee law doctrine – surprising, because Hathaway’s 1991 book is such an impressive doctrinal analysis.  The second consists of the fantasy (current among legal scholars, therefore less surprising) that law and politics can be meaningfully separated.

Continue Reading…

Jenni Millbank Reflects on Panel 3 and Responds to Guglielmo Verdirame

by NYU Journal of International Law and Politics

Panel 3 of the NYU JILP Vol. 44:2 Online Symposium


Jenni Millbank is Professor of Law at University of Technology Sydney.  She has pioneered work addressing the claims of lesbian, gay, bisexual and transgender asylum seekers and interrogating how their claims are understood (and misunderstood) in the refugee adjudication process. With Catherine Dauvergne, Professor Millbank has undertaken a series of research projects involving long term comparative analysis of sexuality and gender claims from Australia, the UK, Canada, New Zealand and the USA, which they are currently extending to include several European jurisdictions.


In Part III of their article in this special issue, Hathaway and Pobjoy claim that S395 and HJ and HT, in articulating a right to live freely and openly, have taken an “all-embracing formulation” to “action-based risks” associated with sexual orientation.  The judgments, they say, “seem to assume that risk following from any ‘gay’ form of behavior gives rise to refugee status.”  The authors argue to the contrary that refugee law should “draw a line” so as to only protect actions deemed integral to sexual orientation and not those that are deemed peripheral, trivial or stereotypical.  I contend that Hathaway and Pobjoy’s argument is both wrong in principle and dangerous in practice.

Reasoning premised on assumptions about the ease, naturalness, and legal correctness of concealing lesbian, gay, and bisexual identity, is one of, if not the, most significant and resilient barrier to the fair adjudication of sexual orientation based refugee claims worldwide to date.  In 2010, it appeared that perhaps the tide had truly turned against discretion reasoning with the decision of the Supreme Court of the United Kingdom in HJ and HT.  The joined cases of HJ from Iran and HT from Cameroon were a culmination of ten years of litigation by HJ and four by HT, encompassing no less than thirteen separate determinations by seventeen decision makers.  The Supreme Court largely approved the majority approach taken in the High Court of Australia decision in S395 (2003) but condemned discretion reasoning in even stronger terms, and more explicitly grounded its decisions in equality rights.  Lord Hope stated that “[gay people] are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self-expression in matters that affect their sexuality, as people who are straight.”  While Lord Rodger held that

“[T]he Convention offers protection to gay and lesbian people—and, I would add, bisexuals and everyone else on a broad spectrum of sexual behaviour—because they are entitled to have the same freedom from fear of persecution as their straight counterparts.  No-one would proceed on the basis that a straight man or woman could find it reasonably tolerable to conceal his or her sexual identity indefinitely to avoid suffering persecution.  Nor would anyone proceed on the basis that a man or woman could find it reasonably tolerable to conceal his or her race indefinitely to avoid suffering persecution.  Such an assumption about gay men and lesbian women is equally unacceptable.”

Continue Reading…

Discretion in the Netherlands: Sabine Jansen Responds to Jenni Millbank & Guglielmo Verdirame

by NYU Journal of International Law and Politics

Panel 3 of the NYU JILP Vol. 44:2 Online Symposium


Sabine Jansen is a lawyer and co-author of the research report Fleeing Homophobia, Asylum Claims Related to Sexual Orientation and Gender Identity in Europe, COC Netherlands/VU University Amsterdam, September 2011.


In their article Hathaway and Pobjoy propose to draw a line between protected and unprotected “gay” activities in refugee claims.  Although they acknowledge that there can be no single, universally acceptable definition of such activities, they conclude that there are some activities, loosely associated with sexual identity that are not reasonably required to reveal or express an individual’s sexual identity.

I do not think such a distinction in different types of “gay” activities is a good idea, and I will illustrate my point with two recent examples of Dutch legal practice.

Since May 2007, the Dutch Aliens Circular states: “People with a homosexual preference are not required to hide this preference upon return in the country of origin” (Vc C2/2.10.2). The Secretary of State added later that this means that in the assessment of an asylum claim, the possibility to conceal one’s sexual orientation should play no role. (Letter of the Secretary of State Albayrak to COC Netherlands, 12 February 2009)

However, during the Fleeing Homophobia research, we found that in legal practice, “discretion reasoning” still occurs, and thus Dutch practice is contrary to Dutch policy.

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Queer Cases, Great Law: S. Chelvan Responds to Jenni Millbank & Guglielmo Verdirame

by NYU Journal of International Law and Politics

Panel 3 of the NYU JILP Vol. 44:2 Online Symposium


S. Chelvan is a Barrister at No5 Chambers, London; a PhD candidate in law at King’s College London; and a UK Country Expert and External Expert to the Advisory Board for the Fleeing Homophobia project.  He is known as “a doyen of immigration cases involving issues of sexual identity.” (Chambers UK 2012).

An Englishman, Irishman and a Scotsman walk into a bar.  The barman asks the Scotsman . . . .”

“To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates.”

What is the similarity, and then the difference, between the two passages above?  The similarity is that most readers would accept that they each illustrate an example of British humour.  The difference?  Some observers read the second reference, taken from § 78 of Lord Rodger’s reasoning in the U.K. Supreme Court case of HJ, not to be illustrative of anything linked to humour, but rather a blatant attack on fundamental principles underlying refugee law.  I align myself to the first scenario and aim in this short note to analyse why concentrating on excluding certain categories of conduct from protection misses the point.

Kendall (2003 citing Mahoney J.A. in Thavakaran), rejects an approach where the “onus for removing the fear of persecution [is] on the victim, rather than the perpetrator” (see also Johnson, 2007: 107 fn. 30).  What is at the core of the reasoning of the U.K. Supreme Court is not a right to what some observers may describe as “peripheral conduct”, but a right not to be persecuted, for reasons of sexual identity.   Verdirame’s limitation on the conduct of a gay man, which went “beyond” what a straight man can exercise in the public sphere, is echoed in an earlier 2005 UK Asylum and Immigration Tribunal decision of AT (Homosexuals: need for discretion?) Iran [2005] UKAIT 00119.  The AIT held, at § 28, in one of its most controversial determinations that resulted in complaints from the U.K. NGO’s UKLGIG and Stonewall, that:

“Whether there is or is not a ‘core right’ for persons of any sexual orientation to conduct themselves with discretion in their public sexual practices is not something we need in our view decide, though we should have thought that such discretion was part of the ordinary consensus of civilized mankind (and still more so of a number of races considered ‘uncivilized,’ so far as they still exist).  The reason is that this appellant on our findings of fact, and his own expressed intentions for the future, has never shown the slightest wish to engage in homosexual conduct in any way in the face of the public or the authorities, such as might expose him to any real risk, on the background evidence, on return to Iran. Whether he has or does not have a ‘core right’ to go in for that sort of thing, his return will not expose him either to Convention persecution or ill-treatment.”

There are only three examples I can call upon to illustrate a rare and clearly ignorant approach to the exercise of public sex, being centrally connected with a refugee claim in the U.K.  In XY (Iran) (2008), counsel for the appellant argued to the England and Wales Court of Appeal not to remove his gay client because he would be returned to a life of sex in the public bath houses and he would not be able to have sex in the family home [§ 14].  Secondly, the stance of the U.K. Home Office for many years with respect to the alleged existence of cruising in a Tehran park, where men were able to pick up other men for sex, was that this indicated an ability to be gay in Iran, and therefore gay men were not refugees.   The third, and final example, is in the case of Hylton [2003] EWHC  1992 (Admin), where Counsel for the U.K. Home Office submitted that the risk group in Jamaica was limited to “a homosexual prostitute or homosexuals who cruise in particular areas” [§ 11] (position reversed in DW (2005) (AIT)).

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Rt. Hon. Sir Richard Buxton Responds to Jenni Millbank & Guglielmo Verdirame

by NYU Journal of International Law and Politics

Panel 3 of the NYU JILP Vol. 44:2 Online Symposium


Rt. Hon. Sir Richard Buxton is formerly Lord Justice of Appeal, Court of Appeal for England & Wales.


The right of lesbians and gay men to live freely, openly, and on equal terms is a noble – indeed in the view of liberal western society – an obvious and unavoidable aspiration.  Nor, to adapt the language of Millbank’s title, could the enforcement of that right be bad law in the national jurisprudence of any such society.   But we are concerned in this symposium with a less trite and obvious question: the extent to which that principle can be enforced through the international law of refugee protection.  As Verdirame importantly observes, protections imposed by that law imply criticism of the national law of the state of origin.  Until recently, therefore, international protection was limited to cases where a member of a recognised PSG (to adopt Millbank’s notation) was threatened in the state of origin, and by reason of her membership of the PSG, with persecution: defined as harm of an intensity or duration that the person persecuted could not reasonably be expected to tolerate.

It was that law that the English Court of Appeal applied in its decisions in Z v. Secretary of State and J v. Secretary of State, which are heavily criticized in this symposium.  A member of a PSG (in casu, a person of gay orientation) would be entitled to international protection if the steps that she had to take to avoid exogenous persecution would be sufficiently onerous in moral and emotional terms as to retain her in a condition of, albeit now endogenous, persecution.  The English Supreme Court in HJ(Iran) rejected that approach, and in so doing greatly widened the protection afforded by international law, at least as that law is understood in England, to persons of gay orientation and, by necessary implication, to members of any other PSG.

As the present writer explains in his original contribution to the symposium, that revolution was achieved by accepting the submission of the United High Commissioner for Refugees (who, regrettably, is not providing his wisdom to this symposium) that the basis of international protection was not, as hitherto understood, to save the refugee from persecution (as defined above) by reason of her membership of a PSG.   Rather, international refugee law protected the status of the members of any PSG that it recognised.   That meant that any interference with the characteristic behaviour of a member of a PSG, an attack on claimant’s status as such a member, would mandate international protection, even if the interference was not intolerable in the persecutory sense.

That has at least two implications for the issues raised in Panel 3.

Continue Reading…

David Landau Responds to Mark Tushnet

by Harvard International Law Journal

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium].

I would like to thank Mark Tushnet for his thoughtful reply to my article. As he notes, it is a deeply positive development that we have moved from talking about whether constitutions should include social rights to how they should do so. The debate about means is a particularly difficult theoretical and empirical problem, one that is likely to be one of the central debates in the field of comparative constitutional law for a long time. And the question of the effect of social rights on the poor ought to be perhaps the central question in evaluating these various means.

In this light, we ought to consider the question of whether all four of the remedial methods I discuss can be improved upon. There seems to be little debate on the question of whether individual enforcement of social rights and enforcement of these rights via “negative injunction” are useful poverty reduction tools. Neither seems effective as currently constructed, but it is important to think about whether either device could be improved. For example, the individual enforcement model might be creatively engineered to have more of a system-wide effect, perhaps via a liberal use of contempt-like sanctions. Similarly, some of the recent South African jurisprudence may have demonstrated that even the “negative injunction” or status-quo-protecting model can benefit the poor in important ways, if cleverly deployed. The South African courts have refused to evict residents (thus freezing the status quo) in order to push the government to upgrade existing settlements rather than razing them and undertaking wholesale renewal. And in one case, a court refused to allow private property owners to evict impoverished squatters but allowed those private property owners to seek damages against the state – this may be an effective way to incentivize the bureaucracy to solve the problem.

The main disagreement between Professor Tushnet and my piece is on the other two types of remedies; in other words, on the question of softer, dialogue-based remedies versus harder, structural injunctions. Professor Tushnet tends to favor the former and I tend to favor the latter. I admit that this is a difficult choice, especially since courts are constrained by various features of their political environments – very hard remedies might well be infeasible in a one-party state like South Africa, for example. And as I note in the paper, structural injunctions are sometimes effective, but have considerable capacity costs on courts and often do not achieve much. So the choice of remedies seems to me to be one between highly imperfect options. Also, I see the issue of hardness or softness in system-wide remedies as basically lying on a continuum – these are differences in degree rather than in kind. That is, as Professor Tushnet points out, both structural injunctions and softer remedies like Grootboom are dialogical in nature, but there are important differences in whether the court or the legislature leads the dialogue. Continue Reading…

Taming Globalization: International Law, the U.S. Constitution, and the New World Order

by Julian Ku

I feel like I have been working on this book forever, and my co-author John Yoo feels the same, which is why we are more than usually delighted to announce that  Taming Globalization: International Law, the U.S. Constitution, and the New World Order, has been officially released.  It is an attempt to pull together our thinking on U.S. foreign relations law to develop a normative argument in favor of controlling the impact of international law on the domestic legal system.  In the book, we recognize and accept that globalization and international law are having, and will have, an important impact on the U.S. constitutional system.  We argue, however, that a method of “accommodation” can best mediate these impacts.  Accommodation includes, but is not limited to, the doctrines of non-self-execution, executive management of the interpretation of international law, and limited state autonomy in foreign affairs.

I plan to host an online discussion of this book on Opinio Juris sometime later this spring, and you will no doubt notice me flacking this book on the blog periodically.  But if you can’t wait until our symposium, please buy a copy!

Dr. Hugo Storey Responds to John Tobin

by NYU Journal of International Law and Politics

Panel 2 of the NYU JILP Vol. 44:2 Online Symposium


Dr. Hugo Storey[1] is a Senior Judge of the U.K. Upper Tribunal Immigration and Asylum Chamber


In the limited time and space, may I offer to following observations for Panel 2:

(1) The S395 and HJ (Iran) cases are truly landmark cases. Hathaway and Pobjoy’s (H and P) article is equally a truly landmark article.  And the high-quality response pieces sparked by their article are extremely important, not just for the issue of the proper approach to LGBTI claims, but for refugee jurisprudence as a whole, in particular its approach to the issue of behaviour modification.

(2) Framing matters this way helps perhaps remind ourselves that in general terms it would seem desirable if claims involving the different kinds of protected characteristics could be dealt with in pari materiae – so that what is said about sexual orientation cases also holds true for religious orientation and political orientation etc. cases.  It may be that in some limited respects each type of case is sui generis, indeed, both H and P (p.110)  and Jenni Millbank (p.119) emphasise this and I briefly allude to it below. But in general terms the meaning of “being persecuted” etc. cannot vary from subject-matter to subject-matter.

(3) This point should alert us to the fact that we had best not assume that S395 and HJ (Iran) are the last word. Quite soon the Court of Justice of the European Union (CJEU) will give its judgment on a preliminary reference from the Bundesverwaltungsgericht (Germany) in Federal Republic of Germany v. Y (Case C-71/11). The CJEU was originally seized of another German case which directly concerned the gay concealment issues, but this fell way (as noted by H and P, n.33). But Case C-71/11 has just now had an oral hearing and it raises the concealment/discretion/abstinence issue in the (arguably analogous) context of a religious persecution case involving two Ahmadis from Pakistan. The first question the CJEU is asked is whether a violation of religious freedom sufficiently severe to give rise to persecution “arises only if the core area of that religious freedom is adversely affected”?  One further question asked is whether there can be acts of persecution within the meaning of Article 9(1)(a) of Directive 2004/83/EC (which defines persecution) “ in cases where, in the country of origin, the practice of faith in public gives rise to a risk to body, life or physical freedom and the applicant accordingly abstains from such practice?” A final question asks whether persecution arises if it is established that the applicant will carry out certain religious practices –other than those falling within the core area – after returning to the country of origin, even though these will give rise to a risk to body, life or physical freedom, “or is the applicant to be expected to abstain from engaging in such religious practices in the future?” The answers of the CJEU will, of course, be legally binding throughout the 29 Member States of the EU – including on the UK Supreme Court.  Immediately it can be seen that several of the issues that animate the current debate, that of the use of  “binaries” such as “core/periphery” and the employment of some kind of “reasonable expectation” test in particular – may very likely be tackled by the CJEU.[2]

Continue Reading…

John Tobin Reflects on Panel 2

by NYU Journal of International Law and Politics

Panel 2 of the NYU JILP Vol. 44:2 Online Symposium


John Tobin is an Associate Professor at Melbourne Law School where he teaches and researches in the area of human rights. In 2011 he was a Senior Scholar in Residence at the NYU Center for Human Rights and Global Justice. His book, The Right to Health in International Law, has just been released by Oxford University Press.


Using human rights in refugee law – The need to proceed with caution

A well-founded fear of being persecuted is a core requirement for a finding of refugee status under the Refugee Convention.[1] Although the Refugee Convention does not define persecution and there is no universally accepted definition,[2] most definitions tend to stress the need for serious harm and link persecution in some way to a violation of human rights.  For example, according to the UNHCR Guidebook a threat to life or freedom or ‘other serious violations of human rights’ would constitute persecution.[3] The EC Council Directive 2004/83/EC provides that acts of persecution must be ‘sufficiently serious by their nature or repetition so as to constitute a severe violation of basic human rights’.[4] And for Hathaway and Pobjoy, who affirm the test originally developed by Hathaway in 1991, and which has been widely cited with approval since, it is ‘necessary to show the “sustained or systemic violation of basic or core human rights entitlements demonstrative of a failure of state protection.”[5]

The theme common to each of these approaches is the idea of a serious or severe violation of a basic or core human right.   Although this idea has become axiomatic within refugee law, it is problematic when viewed from the prism of a human rights jurist.  For example, in human rights law, a violation will occur where there has been a failure of state protection.[6] Thus, it makes no sense to speak of a human rights violation and a failure of state protection.[7] And even if a human rights violation is taken to be demonstrative of a failure of state protection (which is true in human rights discourse), the Refugee Convention speaks of a state’s inability or unwillingness to protect an applicant.  But the inability of a State to protect a human right is not necessarily a violation of a human right.[8] It will depend on the reasonableness of a state’s actions in responding to an interference with a right. So does this mean that the Refugee Convention demands surrogate protection for an applicant in circumstances where the state of origin has not actually violated a human right?   If so, this would mean that refugee status would be possible in the absence of a human rights violation by a state.[9]

But if human rights remain central to an understanding of persecution, what constitutes a serious or severe violation of a human right?  Is not every violation of a human right serious?  And what is a basic, fundamental or core human right?  Are not all human rights recognized in international treaties said to be fundamental and are not all human rights interdependent and indivisible?[10] And to which human rights do the various tests for persecution refer – all those recognized under international treaties and customary international law or only certain kinds of rights? And how is the meaning of each right to be assessed?  Are developments in regional and domestic human rights systems relevant to the interpretation of international human rights and if so to what extent?

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Bojana Asanovic Responds to John Tobin

by NYU Journal of International Law and Politics

Panel 2 of the NYU JILP Vol. 44:2 Online Symposium


Bojana Asanovic is a barrister at Lamb Building, Chambers of Ami Feder in London. She specialises in immigration, asylum and human rights law.


This note examines the way in which asylum claims based on sexual identity are determined as a flagrant breach of Article 8 ECHR after HJ and HT, UKSC (2010).  I will take the case of DBN v the United Kingdom, (26550/10) ECHR 192 (2011) as its starting point, and follow with a brief look at potential consequences of an evidentiary approach that places importance on the need for asylum seekers to prove psychological harm in Article 8 cases.

On January 27, 2011, the European Court of Human Rights (‘ECtHR’) communicated the case of DBN v. the United Kingdom, which concerned a lesbian from Zimbabwe who claimed violations of Articles 3 and 8 of the European Convention on Human Rights.[1] This case post-dated HJ and HT in the Supreme Court.  In D.B.N., the question to the parties in relation to Article 8 was phrased thus:

“Is there a real risk that the applicant’s removal to Zimbabwe would amount to a flagrant breach of the applicant’s rights to private life under Article 8 of the Convention (EM (Lebanon) (FC) v. Secretary of State for the Home Department (Respondent) UKHL 64 (2008))?”[2]

The applicant argued that in the context of systematic, virulent, state-sponsored homophobic propaganda with evidence of discrimination and harassment by the police, it was not possible to enjoy a protected right to privacy because she would be forced to live in fear and secrecy as a result of her sexual identity.

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Lucy Yeatman Responds to James Hathaway & Jason Pobjoy

by NYU Journal of International Law and Politics

Panel 1 of the NYU JILP Vol. 44:2 Online Symposium

Lucy Yeatman is a lecturer in law at the University of Greenwich, teaching Family Law and Human Rights Law. Her research focuses on same-sex parents and the law, and LGBTI asylum seekers and refugees.

Hathaway and Pobjoy argue that the decisions in S395 and HJ and HT achieved the right result for the asylum seekers involved, but for the wrong reasons.  They go on to argue that there were two ways in which the reasoning in both cases was flawed: first, in the reliance on the threat of exogenous harm which could not be objectively established and in consequence not giving due consideration to the threat of endogenous harm caused by enforced concealment; and second, in the failure to place any kind of limitation on the type of behaviour associated with sexual orientation that might give rise to protection under the Refugee Convention.  As John Tobin quite rightly concludes, “credit is due to Hathaway and Pobjoy for seeking to develop a stronger jurisprudential foundation on which to base claims for refugee status of GLBTI applicants” and he welcomes the emphasis they place on psychological harm as an important contribution to a “shift in the narrative of persecution.”  This paper will however object to the approach taken by Hathaway and Pobjoy for five reasons.

First, a distinction is drawn between requiring someone to return home and conceal their sexual orientation, and finding that if returned home, they will “for seclusion.”  They accept that there can be no basis in refugee law for requiring concealment, but argue that in both S395 and HJ and HT the appellants were not being required to conceal their sexual orientation but were opting to do so.  The UKSC quite rightly rejected this distinction,[1] as the asylum seeker is not choosing to conceal their identity.  In fact, by virtue of having sought asylum in a country that recognises the rights of lesbian and gay people to live free from discrimination, the claimant is quite clearly opting not to conceal their identity.  If their asylum claim fails and they are returned home then this is not a choice.

Second, Hathaway and Pobjoy go on to argue, that where a person opts for concealment, it is not possible to identify a risk of persecutory harm.   The UKSC directly addressed this point by requiring examination of the reasons for concealment.  Lord Rodger was satisfied that if a claimant would conceal the fact he is gay in order to avoid persecution, then this is prima facie an indication that there is a threat of persecution.[2] Hathaway and Pobjoy describe this approach as “riding roughshod over their responsibility to identify the risk of persecutory harm” because refugee law requires an objective analysis of a risk of harm.   Yet at no point does the UKSC suggest that this is a purely subjective test, the judgments of their Lordships clearly require evidence that if the claimant were “out” they would risk persecution.  The objective test is there.  Yet Hathaway and Pobjoy’s approach suggests that concealing your sexual orientation is a simple process that involves easily made modification of behaviour; otherwise they would surely recognise that a life of concealment always carries with it the risk of discovery.   In fact the story of HT is a good example of this.  He managed to live discreetly for many years, before a lack of extreme caution exposed him to his neighbours and to a viscous attack that left him hospitalised and vulnerable to further violence.v If a person is hiding their true identity due to a fear of persecution, if that fear is well-founded, then they are always at risk of exposure and persecution.

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Connie Oxford Responds to James Hathaway & Jason Pobjoy

by NYU Journal of International Law and Politics

Panel 1 of the NYU JILP Vol. 44:2 Online Symposium


Connie Oxford is Assistant Professor of Gender and Women’s Studies at the State University of New York, Plattsburgh. Her publications include Queer Asylum: U.S. Policies and Responses to Sexual Orientation and Transgendered Persecution in Shifting Control: Gender and Migration Policy, 1917-2010. Marlou Schrover and Deidre Moloney (eds.) Amsterdam, Netherlands: Amsterdam University Press.


In Queer Cases Make Bad Law, James C. Hathaway and Jason Pobjoy criticize decisions of the High Court of Australia and the Supreme Court of the United Kingdom regarding two queer asylum cases, respectively, S395[1] and HJ and HT.[2] They argue that while in each case, the applicants were rightfully granted asylum, each Court erred in its legal logic, and therefore, strayed from “accepted refugee doctrine.”  Their critique rests on a model of persecution that differentiates the physical realm of harm (exogenous) from psychological harm (endogenous).  They conclude that the two gay Bangladeshi men granted asylum in Australia and the gay Iranian and Cameroonian men granted asylum in the UK had “no well-founded fear of exogenous harms” even though this was the basis of the Courts’ favorable judgments.  Conversely, the Courts were silent on the claimants’ experiences of “severe psychological harm” that instead, according to Hathaway and Pobjoy, should have formed the logic of these decisions.  In this brief response, I address the idea that gay men who “opt for seclusion” face only a well-founded fear of endogenous harm and not one of exogenous harm.

The lynchpin of Hathaway and Pobjoy’s argument is a dichotomous classification of persecution for gay men.[3] They designate outward bodily harm, such as “prosecution or beatings” as exogenous and inward psychological harm that “follow[s] from self-repression (anxiety, paranoia, disassociation, or worse)” as endogenous.  Although they do not state explicitly that all forms of persecution are necessarily one or the other, the examples offered imply that the harm itself is mutually exclusive to the body or mind in their taxonomy of persecution.  Nor do they suggest whether the exogenous/endogenous binary is specific to queer cases or applicable to claims of persecution based on other grounds such as religion or political opinion that they compare to social group.  I take issue with two implications of the exogenous/endogenous model.

First, I find problematic the binary logic embedded in the exogenous/endogenous framework for ascertaining harm.  This is not to say that persecution cannot be solely physical or psychological at times, but rather it is not always exogenous or endogenous.  Whether Hathaway and Pobjoy are advancing the notion that harm must always be one or the other is not clear, and if this is their argument, then it certainly does not stand in the face of empirical examples of torture.  For example, studies of torture survivors show that psychological trauma, such as Post Traumatic Stress Disorder (PTSD), is routinely constitutive of (rather than merely a result of) physical harm.[4] The second implication of their argument that I want to address is the ways in which the exogenous/endogenous binary is applied to queer cases.

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Queer Cases Make Pretty Good Law – at Least in the United States: Victoria Neilson Responds to James Hathaway & Jason Pobjoy

by NYU Journal of International Law and Politics

Panel 1 of the NYU JILP Vol. 44:2 Online Symposium

Victoria Neilson is the Legal Director of Immigration Equality and an adjunct professor at New York University School of Law.


Reading Queer Cases Make Bad Law, by James C. Hathaway and Jason Pobjoy,  (hereinafter  “Hathaway/Pobjoy article”) my first reaction is to feel fortunate that I practice asylum law in the United States and not in Australia, the U.K., or other European countries that have imposed a duty of so-called “discretion” on asylum seekers to avoid harm.  U.S. courts have rejected the notion that a gay man should be saddled “with the Hobson’s choice of. . . either (1) facing persecution for engaging in future homosexual acts or (2) living a life of celibacy.  Karouni v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005).  And in the recently released United States Citizenship and Immigration Services Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) Refugee and Asylum Claims, USCIS instructs asylum and refugee officers that:

Being compelled to abandon or conceal one’s sexual orientation or gender identity, where this is instigated or condoned by the state, may amount to persecution.  LGBTI persons who live in fear of being publicly identified often conceal their sexual orientation in order to avoid the severe consequences of such exposure — including the risk of incurring harsh criminal penalties, arbitrary arrests, physical and sexual violence, dismissal from employment, and societal disapproval.   (LGBTI module at 20-21).

While asylum law in the United States is by no means perfect, I think that the subjects of the Hathaway/Pobjoy article, HJ and HT, could have won asylum here under the existing legal framework.  Thus, rather than re-envision asylum and refugee law as the article suggests, to focus on the “endogenous” harm that comes from leading a forced life of secrecy and suppression, I suggest that European countries look to the United States as a model for analyzing these types of cases.

Under U.S. asylum law, applicants are most likely to be successful if they can prove past persecution.  Doing so creates a presumption of future persecution, shifting the burden to the government to prove that the applicant will not face further persecution.  As a practical matter, the government rarely argues against granting asylum where past persecution has been established.

In situations where the applicant has not suffered persecution in the past, the inquiry is entirely forward-looking.  Does the applicant have a well-founded fear of future persecution?  It is then incumbent upon the applicant to demonstrate either that he or she will be singled out for future persecution or that there is a pattern and practice of persecution of those that share the applicant’s protected characteristic. 8 C.F.R. 208.13(b)(2).

Cases based on a pattern and practice argument are decided almost entirely on country conditions documentation.  U.S. courts have been reluctant to grant “pattern and practice” cases, probably because of the obvious “floodgates” concern that if one applicant with a particular protected characteristic can win asylum based solely on pattern and practice, then presumably all applicants who share that characteristic could also win.  Thus, gay applicants have lost “pattern and practice” claims where evidence of treatment of LGBT people is mixed, such as claims from Peru (Salkeld v. Gonzales, 420 F.3d 804 (8th Cir. 2005)), Zimbabwe, (Kimumwe v. Gonzales, 431 F.3d 319 (8th Cir. 2005)), and Mexico (Castro-Martinez v. Holder, 641 F.3d 1103 (9th Cir. 2011)).

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Sarah Hinger Responds to James Hathaway & Jason Pobjoy

by NYU Journal of International Law and Politics

Panel 1 of the NYU JILP Vol. 44:2 Online Symposium

Sarah Hinger is a Marvin M. Karpatkin Fellow at the ACLU Racial Justice Program and previously worked at the New Jersey Institute for Social Justice.  Ms. Hinger is a 2009 graduate of Columbia Law School, where her note, Finding the Fundamental: Shaping Identity in Gender and Sexual Orientation Based Asylum Claims, was awarded the Myra Bradwell Prize by the Columbia Journal of Gender and Law.


Focusing on the risk of psychological harm in determining whether a gay man or woman who would opt for seclusion has the requisite well-founded fear of persecution, as Hathaway and Pobjoy do, unnecessarily requires the applicant to demonstrate the fundamental nature of his or her identity.  Rather, courts correctly find that persecution occurs whenever a regime forces “discretion.”  In seeking asylum, the applicant asserts a wish to live openly in a way that would subject him or her to persecution in the country of origin.  Assuming the applicant is deemed credible on this count, it should make no difference that the applicant may have in the past chosen to conceal aspects of his or her identity.

My broader point is that asylum law should rightly focus on incursions on choice in a fundamental aspect of human identity rather than scrutinizing particular individual choices.  Just as a state commits persecution when it requires discretion of an individual who has chosen to live—or cannot avoid living—in ways that openly incur violence, persecution occurs when the individual could and would, but does not want to, cover.   How a person copes with the threat of persecution need not, and should not, enter the asylum inquiry.  Whatever the choice, and whatever the ensuing psychological effects, asylum law protects against coerced choice in fundamental spheres of human identity.

As the authors indicate, sexual orientation is a well-recognized basis for receiving asylum protection.  In holding that sexual orientation can form the basis of an asylum claim, courts adopt a presumption of the universal importance of this characteristic to human identity.  Thus, it is unnecessary to probe an individual’s psychological state to understand the harm to his or her fundamental identity.  Focusing on the individual psychological impact requires the portrayal of fragile victims without the capacity to maintain an identity that is not wholly bound up with persecution.  The requirement to show severe psychological damage is merely another way to test whether the identity is truly “fundamental.”

This requirement creates problematic results.  Take, for example, the bisexual asylum applicant.  Would same-sex sexual desires be considered less “fundamental” to her identity, and thus, concealment less psychologically damaging? For a lesbian mother, if she has previously chosen to stay in her country of origin, prioritizing remaining with her children, does this counteract any mental distress caused by concealing her identity and choosing not to seek out same-sex relationships?  Perhaps these individuals do suffer less psychological harm than some others, perhaps not.  The very inquiry, however, is inappropriate.  The point of asylum law’s protection is that no one should be forced to make such choices under penalty of violence.  When a court recognizes that an applicants’ preferred choice would be met with persecution, the asylum inquiry is rightly satisfied.

Iran Will Have the Bomb Soon! Really, This Time We Mean It!

by Kevin Jon Heller

Scott Peterson has a fantastic timeline at the Christian Science Monitor that catalogs all the times Western countries have predicted Iran’s imminent entry into the nuclear club.  Some highlights:

1984: Soon after West German engineers visit the unfinished Bushehr nuclear reactor, Jane’s Defence Weekly quotes West German intelligence sources saying that Iran’s production of a bomb “is entering its final stages.” US Senator Alan Cranston claims Iran is seven years away from making a weapon.

1992: Israeli parliamentarian Benjamin Netanyahu tells his colleagues that Iran is 3 to 5 years from being able to produce a nuclear weapon – and that the threat had to be “uprooted by an international front headed by the US.”

1995: The New York Times conveys the fears of senior US and Israeli officials that “Iran is much closer to producing nuclear weapons than previously thought” – about five years away – and that Iran’s nuclear bomb is “at the top of the list” of dangers in the coming decade.

1998: [F]ormer Defense Secretary Donald Rumsfeld reports to Congress that Iran could build an intercontinental ballistic missile – one that could hit the US – within five years.

2002: CIA warns that the danger from nuclear-tipped missiles, especially from Iran and North Korea, is higher than during the cold war. Robert Walpole, then a top CIA officer for strategic and nuclear programs, tells a Senate panel that Iran’s missile capability had grown more quickly than expected in the previous two years – putting it on par with North Korea.

2004: Then-Secretary of State Colin Powell tells reporters that Iran had been working on technology to fit a nuclear warhead onto a missile. “We are talking about information that says they not only have [the] missiles but information that suggests they are working hard about how to put the two together,” he said.

Keep this timeline in mind the next time you read that the right of self-defense in the UN Charter permits the U.S. or Israel to attack Iran in order to prevent an Iranian nuclear attack.

David John Frank Responds to James Hathaway & Jason Pobjoy

by NYU Journal of International Law and Politics

Panel 1 of the NYU JILP Vol. 44:2 Online Symposium

David John Frank is Professor of Sociology and, by courtesy, Education at the University of California, Irvine. He is interested in the cultural infrastructure of world society, especially as it changes over time and varies across national contexts.

It makes some sense to justify LGBT asylum claims in terms of the traumatic consequences of self-repression.  A surfeit of evidence demonstrates the extent to which such consequences exist.  They may culminate in suicide.

Still, it is important to recognize that LGBT asylum claims and self-repression are different phases of a joint system.  The system designates individuals as the base units of reality.  And it renders particular forms of desire as lasting sexual identities.

Notice the peculiarity of both system features.  In comparative and historical perspective, it is unusual to carve persons out from their natural and social embeddings and to prop them up as stand-alone entities.  More typical are systems arranged around corporate entities, such as families and races.  The legal apparatus of asylum claims and the psychological apparatus of self-repression both assume the natural reality and social priority of individuated persons.

Likewise in comparative and historical perspective, it is unusual to treat sexual desires as sexual identities – enduring and defining feature of individuals.  More typical are systems that regard sexual desires as evanescent tastes (something one likes in a particular moment), or as situational role performance (something one does in a particular context).  Asylum claims and self-repression both assume a permanent and essential stamp of LGBT identity.

Of course, to say they are two phases of a joint system is not to disregard the obvious differences between LGBT asylum claims and self-repression.  Asylum rights are enabling.  Self-repression is disabling.  Asylum rights are public matters.  Self-repression is a private matter.  And so on.

All of this is important to spell out because it describes the world as we know it and the world as we believe it should be.  In articulating the assumptions that allow us to justify LGBT asylum claims in terms of the traumatic consequences of self-repression, we specify the conditions under which such a justification makes sense and thereby strengthens its persuasive punch.

Alan G. Kaufman Reviews Stephen C. Neff’s ‘Justice in Blue and Gray’

by Kenneth Anderson

Alan Kaufman, a career national security lawyer and retired Navy JAG, has a fine review-essay of Stephen C. Neff’s Justice in Blue and Gray: A Legal History of the Civil War over at Lawfare.  Alan, who is a former student of mine a really long time ago at Harvard Law School as well as an occasional commenter here at OJ, observes in the essay how the law of the Civil War continues to reverberate in the US approach to its conflicts and counterterrorism today.  The book is excellent and likewise the essay reviewing it.

[T]he American Civil War, much like the armed conflicts in which the United States remains involved since the events of 9/11, required that national security strategy and decision making operate “in the dual spheres of criminal law and belligerency.”  Today’s questions of combatant status and the fate of unlawful belligerents, debates over executive powers, controversial habeas litigation, struggles over restraints on civil liberties, executive detentions, trials of civilians before military commissions, questions of whether and when to apply domestic criminal law or the international law of war, and, of course, when does the war end and what are the attendant legal consequences – all these questions figured into the law of the Civil War.

Justice in Blue and Gray, A Legal History of the Civil War, by the eminent historian of public international law and the law of war, Stephen C. Neff, is intended as “primarily a case study of the myriad ways in which law plays an important role in a crisis of giant political and military dimensions.”  This is a work of serious history by a leading legal historian, not a thinly-veiled parable or historical roman-a-clef for the present; it offers no direct connection to our world today, except by the reader’s own inferences.  Still, this legal history offers a not-so distant mirror.  Clear and elegant in its language, understandable to the layman as well as to the lawyer, Justice in Blue and Gray shows how law in war can be used – indeed, was used – to accomplish strategic and operational war fighting objectives in a vast and bloody conflict.  To use a word Neff does not use (and a somewhat controversial word in today’s parlance), this is a study of law in the Civil War as lawfare.  It would be something of an understatement to say that these understandings – both as icon from the past but also source of live legal precedent – are entirely in play in the most recent round of speeches by the Administration’s senior legal officials seeking to explain itself and its justifications in Guantanamo detention, trials, targeted killing, and the targeted killing of Americans.  The recent speeches by Attorney General Eric Holder, DOD General Counsel Jeh Johnson, DOS Legal Adviser Harold Koh, and others can profitably be read with this book to hand.

At the level of grand strategy, all lawfare is a battle for legitimacy.  To be sure, other objectives – operational and tactical — may flow from that source, but legitimacy is always the underlying and fundamental legal objective.  Thus, for the nascent Confederacy, a key initial strategic objective was recognition as a sovereign nation state, and the potentially decisive foreign alliances, particularly with Britain, that could flow from the establishment of that legitimacy.  For the Union, an initial strategic objective was to prevent any such recognition and concomitant legitimacy.  And so the first and richest chapter of Justice in Blue and Gray discusses the legal arguments surrounding the act of secession by the southern states.  Upon the answer to these fundamental legal questions would depend not only whether the secession and a fight either to maintain it by one or to stop it by the other could be held legitimate, but also whether what followed would be law enforcement or war – and thus what measure of violence could legitimately and lawfully be taken by either side to suppress or perfect the secession.

New York University Journal of International Law and Politics, Vol. 44:2 Online Symposium

by NYU Journal of International Law and Politics

The NYU Journal of International Law and Politics is partnering once again with Opinio Juris for an online symposium.  The symposium will correspond with the simultaneous release this week of our Vol. 44, No. 2 issue, featuring a ground-breaking piece by Professor James Hathaway, a world-renowned leader in refugee studies and director of Michigan’s refugee law program, and Jason Pobjoy, a Ph.D. candidate in Law at Gonville and Caius College, University of Cambridge and a visiting doctoral researcher at NYU.  The article, Queer Cases Make Bad Law, serves as a point of departure for contributions by other leading scholars, who examine and expand on issues raised by the piece.  Here is a short summary of the article and an introduction by Editor-in-Chief Jeff Stein.

On Thursday and Friday, several of the print contributors as well as other international experts will engage on various topics intersecting with LGBT asylum and refugee law raised by Professor Hathaway’s article here at Opinio Juris.  Rather than taking a traditional Q&A approach, we felt that it would be more productive to actually use direct quotes from the Hathaway/Pobjoy article and responses to ignite conversation. The first two panels focus on the definition of “being persecuted”, while the second panel focuses on the issue of “nexus”.  The following is the schedule and roster of participants:


Panel 1: Thursday, March 8th, 8am – 12pm

James C. Hathaway and Jason Pobjoy, Queer Cases Make Bad Law, 44 N.Y.U. J. Int’l L. & Pol. 315, 388 (2012):

“No, there is no well-founded fear of exogenous harms, such as prosecution or beatings, where a gay man would in fact opt for seclusion to escape such threats. But, given the traumatic effects that normally follow from self-repression (anxiety, paranoia, disassociation, or worse) there is an alternative and solid basis, grounded in the traditional link between persecution and risk to core norms of human rights law, to affirm refugee status. Because the risk of severe psychological harm has been authoritatively interpreted to contravene the right to protection against cruel, inhuman or degrading treatment, this is the persecutory risk that is most likely to be well-founded in such cases.”



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Why Preventive Self-Defense Violates the UN Charter

by Kevin Jon Heller

I am teaching IHL in Jericho this week, so I don’t have as much time as I’d like to weigh in on the increasingly surreal debate over whether the right of self-defense in Article 51 of the UN Charter permits the U.S. or Israel to attack a country that does not have nuclear weapons, could not build a nuclear weapon anytime soon, and is not — according to the U.S. itself — even trying to build a nuclear weapon.  Readers who are interested in taking the issue seriously, however, should check out Tom Ruys’ magisterial recent book “Armed Attack” and Article 51 of the UN Charter: Evolutions in Customary Law and Practice.  Ruys carefully analyzes state practice and opinio juris to determine whether customary international law permits states to engage in preventive self-defense — the use of military force in response to the threat of an armed attack that is not imminent.  Here is a long snippet from the book, discussing the international response to the report issued in 2004 by the UN’s “High-Level Panel on Threats, Challenges and Security,” which specifically rejected preventive self-defense but cautiously embraced pre-emptive self-defense — the use of military force in response to the threat of an imminent armed attack (the Caroline standard)…

The Facts Make All the Difference on the Iran War Scenario

by Julian Ku

David French and Jay Sekulow respond to Bruce Ackerman’s legal argument about the use of force against Iran with a factual claim: Iran has already attacked the U.S.

There has, in fact, been an “armed attack” against the United States. Iran has been waging a low-intensity war against America and Israel — both directly and by proxy — for more than two decades. Iran’s Quds Force has planned and directed attacks on U.S. forces in Iraq and on Israelis in Israel and abroad. Iran has directly supplied our enemies with deadly weaponry in Iraq and Afghanistan, and is responsible for hundreds of American military deaths — including the Marine barracks bombing in Beirut and the Khobar Towers bombing in Saudi Arabia.  

In other words, Iran attacked us long ago, and our forbearance to this point is neither required by international law nor does it bind us to continued forbearance. In fact, when a declared and hostile enemy escalates its military capabilities dramatically, that presents a direct challenge to American security and the security of our allies.

I don’t know if this is quite right, but it builds on my argument that there is a factual disagreement that will go to the heart of a legal analysis of the use of force. I don’t know if folks on both sides will ever be able to agree on the set of facts, before they even get to legal principles.

Holder’s Speech

by Deborah Pearlstein

Much to say on Attorney General Eric Holder’s much anticipated speech yesterday on the U.S. Government’s approach to targeted killing. It should be said that it is good and right for the AG to make such a speech, and it should be welcomed for its effort. Combined with previous addresses in the past year+ by DOD General Counsel Jeh Johnson, Military Commissions Prosecutor Mark Martins, White House Counterterrorism Adviser John Brennan – it shows that the administration takes seriously the legal concerns about its counterterrorism programs and recognizes at least some imperative to talk about them publicly.

That said, Holder’s speech on first read seemed to me as rather a large anti-climax. It reads just like what I imagine it must have been – a vigorously fought, compromise text with 1000 authors and none in particular, a text that conflates various components of international (and possibly domestic) law, leaves all kinds of questions unanswered, and ultimately confuses more than it clarifies.

For now, maybe it’s just useful to start with what I’d put on my list of questions this speech leaves unanswered. Holder says (among other things):

“[A]n operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.”

So as a beginning, and in no particular order… Who in the U.S. government makes the determination? Does the group (I assume it’s a group) include Defense Department lawyers? CIA lawyers? Justice Department lawyers? State Department? Only some or some combination of these? In all instances or are there provisions for non-interagency team decision-making as well? Is the President invariably the final sign-off? Or do the DNI or Secretary of Defense or others have that authority as well? What kind of training do the relevant decision-makers have? Are they all or at least some expert in operational law? How many of the decision-makers are bound by professional ethical requirements as well (e.g. state bar codes of ethics)? Does the group of decision-makers depend on whether the use of force is being carried out pursuant to the AUMF (the 9/11-related authorization for the use of force) or under a self-defense or other statutory legal rationale (like the CIA’s general statutory authority)?

By what standard is the determination made – how much evidence is required and to what degree of certainty? How reliable need be the sources of information, is only one source or more required, or does it depend on the circumstances (as I imagine, and if so, what circumstances)? Are the “standards” by which the determination is made higher for Americans than for non-Americans? Does the “thorough and careful review” involve a set of quasi-independent assessments, or does each layer of review depend on/defer to the factual and/or legal findings of the initial decision-maker? What, other than the time-sensitivity of a threat, determines the “feasibility” of capture?

And then there are the questions about the law… Like how does the government interpret the principle of distinction (which Holder cites) as applying? The speech indicates (I take it) that non-citizen members of Al Qaeda and associated forces are targetable, as are (I imagine, the speech doesn’t use this language) those forces that directly participate in hostilities. How does it define direct participation? Which forces are included as associated with Al Qaeda and the Taliban under the 2001 authorization to use force against groups responsible for the 9/11 attacks? Al Qaeda in the Arabian Peninsula (which as I understand it was formed well after the attacks)? Al Shabab (which now seems to have formally affiliated itself with Al Qaeda)? Others? Is “imminence” in Holder’s view a legal requirement, or one the administration observes as a matter of prudence? Is it a requirement flowing from the U.S. Constitution (therefore applicable, as I take it in Holder’s view, only to Americans)? Or is it a requirement flowing from international law of self-defense (as the U.S. reads it), in which case it would apply in relevant circumstances to non-citizens as well?

There are of course more. But I sure would like to know what the best arguments are in favor of not just releasing the OLC memo that presumably answers a bit more than Holder was able to clarify.

The ATS and Extraterritoriality

by Anthony Colangelo

[Anthony J. Colangelo is an Assistant Professor of Law at SMU Dedman School of Law]

I suspect the extraterritoriality issue has taken on renewed significance after the Supreme Court’s decision in Morrison v. Nat’l Aust. Bank, which, as many readers know, addressed the extraterritorial reach of the Securities Exchange Act. According to the Court in Morrison, “When a statute gives no clear indication of an extraterritorial application, it has none.” The question now is whether this reinvigorated presumption applies to the ATS. 

In a recent article in the Virginia Law Review, I argued that the ATS and other statutes that implement or authorize the implementation of international law (like statutes enacted pursuant to the Offences Clause or that implement treaties) are distinguishable, and that the presumption against extraterritoriality should not apply to them. The principal rationales behind the presumption, according to the Supreme Court, are to avoid discord resulting from “clashes between our laws and those of other nations” inside foreign territory and to heed the assumption that when Congress legislates, it does so with only domestic concerns in mind. But unlike the Exchange Act—which would involve the projection of a U.S. norm into foreign territory—statutes that implement international law purport to apply a law that is also applicable inside the foreign territory. Concerns about extraterritorial applications of U.S. law conflicting with foreign law inside foreign territory thus largely disappear, since the U.S. law by nature will not conflict with the international law also operative inside the foreign territory. Moreover, while the conventional assumption that Congress legislates with only domestic concerns in mind may make sense for statutes reflecting national values and preferences, that assumption holds far less intuitive force when Congress implements international law—which, after all, deals by definition with foreign nations and shared values and preferences with those nations. Morrison also explained that courts could consider “context” in determining whether a statute has extraterritorial application; here the context is that the statute authorizes application of international, not domestic, law. And in that connection, the relevant canon of construction should be Charming Betsy, which would allow and even encourage extraterritoriality in some cases, even where there is no U.S. connection (as in universal jurisdiction). In other words, when Congress authorizes application of international law, it should be presumed to authorize application of all of international law, including the relevant international law of jurisdiction, which may contemplate extraterritoriality.

This argument could prove attractive to the Court in Kiobel for a couple of reasons: (1) It would allow the Court to decide Kiobel consistently with Sosa and other pre-Morrison cases like Filartiga that have already endorsed, whether affirmatively or by implication, the application of the ATS to foreign conduct and harms. The argument would thus save the ATS from the post-Morrison presumption against extraterritoriality. (2) It also would effectively resolve the corporate liability question without having to necessarily resolve the gnarly choice-of-law question. If, as petitioners had requested, U.S. courts use domestic principles of corporate liability under the ATS, courts would then be applying U.S. norms inside foreign territories in a way that could create conflicts of laws and friction, thereby triggering the presumption against extraterritoriality as to those U.S law principles of liability. The result would be that the ATS still allows suits alleging conduct and harms inside foreign territory, but only to the extent courts faithfully apply extant rules of international (not domestic common) law.

The ATS, Incentives, and Tradeoffs

by Kenneth Anderson

Yesterday was a busy day in International-Foreign-Relations-Law-Land, between the Eric Holder speech on national security and targeted killing at Northwestern University and the quite unexpected announcement that the Alien Tort Statute case of Kiobel will be re-argued in the Supreme Court. Let me add a comment from former DOS Legal Adviser John Bellinger at Lawfare:


The Court’s order may reflect that a majority or plurality of the justices would like to decide the case on the larger issue of whether the Alien Tort Statute even applies to torts committed in other countries, rather than on the narrower issue of corporate liability, and that other justices want to have more briefing on the issue, which was not addressed by the Second Circuit. As I noted in my post about last week’s oral argument, Justices Kennedy, Roberts, and Alito focused almost all of their questions on the diplomatic tensions and problems under international law caused by extraterritorial application of the ATS. This was also the issue that I addressed in my own amicus brief, and that was the focus of the amicus briefs of the Netherlands, Britain, and Germany ….

This development will put the Obama Administration in a difficult position. In its original amicus brief in support of the petitioners, the Administration argued in favor of corporate liability, but made no mention of the numerous diplomatic complaints about the ATS filed by other countries. Assuming that the Administration files a new amicus brief, it will face a dilemma. It will either have to argue against extraterritorial application, contrary to the position of human rights groups and undercutting its prior argument in favor of corporate liability. Or it will have to argue in favor of extraterritorial application of the ATS (at least in some circumstances), which is contrary to the position of many foreign governments and inconsistent with international law principles of jurisdiction. As three members of the International Court of Justice said in the Congo Arrest Warrant case, “[w]hile this unilateral exercise of the function of guardian of international values has been much commented on, it has not attracted the approbation of States generally.” Moreover, the Obama Administration would have to reverse the arguments against extraterritorial application of the ATS made by the Bush Administration in its brief to the Supreme Court in 2008 in the Apartheid case (which the Solicitor General may be reluctant to do). This may be one reason why the Administration asked the Supreme Court not to address the issue of extraterritoriality in its original amicus brief.


One might also add that the amicus brief drafted by Jack Goldsmith in support of defendant corporation Shell seems to have had an effect; Goldsmith and his amicus brief were mentioned by name in the oral argument.  The Goldsmith brief was not primarily about extraterritoriality – it was much more about whether this was international law as such, or instead some kind of well-intentioned but nonetheless faux-international law committed to the hands of US courts.  (I have sometimes referred to it here at Opinio Juris as the “law of the hegemon” which US district courts have been persuaded by ATS plaintiffs’ lawyers, mistakenly  in my view, to regard as “international law.”)

This then combines with a general worry on the part of Justice Alito – but not he alone – that particularly the alien-to-alien cases taking place in an alien land simply have no reason to be in US courts, and that what little can be gleaned about the history and purpose of the statute does not support extraterritorial application, at least in the territory of another sovereign.  Piracy on the high seas, yes – and hence presumably the importance of the qualifier in the Court’s briefing instructions to address not extraterritoriality as such, but instead territory of another sovereign. (But see Jordan Paust and Eugene Kontorovich each commenting separately on the piracy issue, below.) Continue Reading…

What If Federal Courts Close Their Doors to Human Rights Litigation?

by Donald Childress

[Donald “Trey” Childress is Associate Professor of Law at Pepperdine Law School.]

Let me begin by thanking my dear friend Roger Alford for inviting me to post on Opinio Juris. As Roger noted here Chris Whytock, Mike Ramsey, and I co-hosted a symposium on Human Rights Litigation in State Courts and Under State Law at UC-Irvine last Friday, March 2. Chris, Mike, and I came up with the topic a year ago as part of a transnational litigation symposium that Pepperdine hosted.

The topic was based on conjecture: what if ATS cases are limited by federal courts? Along the lines of that conjecture, I recently published an article with the Georgetown Law Journal regarding the next wave of transnational human rights litigation in state and federal courts under state and foreign law. The upshot of that article was that if federal courts begin to close their doors as a matter of substantive and procedural federal law to ATS claims, then what will happen if those human rights cases seek out other law (state/foreign) and other courts (state/foreign)?

This idea was further developed by the UC-Irvine symposium, which looked at the following topics: (1) why plaintiffs have not traditionally but might in the future plead these cases under state and/or foreign law; (2) what the federalism implications are in pleading in this way; (3) what the choice of law implications are; and (4) what the future will look like for transnational human rights litigation. In short, the panelists concluded that state and foreign law may well be a fertile ground for study. However, some panelists explained that the preemptive force of federal law may complicate the pleading of such cases under state law. As to choice of law, the conflicts scholars observed that in most cases the law of the state of injury will be applied, which might lead to forum non conveniens dismissals. However, to the extent U.S. domiciliaries are involved, there is some likelihood that U.S. state law might be applicable, which raises issue of due process, extraterritoriality, and preemption. In short, there were lots of new and interesting observations with the conclusion that articles remain to be written in this area.

This may all sound a bit academic. But, it is not. The Supreme Court’s order yesterday setting Kiobel for reargument and requesting supplemental briefing on the question whether the ATS can be applied to torts committed in a foreign sovereign’s territory may presage a very limited role for the ATS for extraterritorial torts. If the Court finds that the ATS is limited to torts committed on the high seas, like piracy, and to torts committed in the United States, (and thus not to torts in a foreign sovereign’s territory) then ATS litigation as we know it against corporations for harms occurring in foreign countries will be stopped. Such litigation will also be impossible against individuals. As such, pleading state and foreign law may be plaintiffs’ only hope of a day in court. But, with pleading such law, issues of federalism are raised about the appropriate allocation of sovereign authority over tortious activity that touches on foreign affairs, implicating the federal government’s necessity to speak with “one voice.”

In light of all of this, the UC-Irvine conference may have been both timely and relevant for what the Court ends up deciding regarding the ATS.

So Professor O’Connell, Tell Us What You Really Think of the Legality of Targeted Killing

by Julian Ku

I leave it to Ken and others to weigh in on US Attorney General Holder’s speech today at Northwestern.  I did want to point out one early reaction from Professor Mary Ellen O’Connell of Notre Dame, who didn’t exactly pull punches in her assessment of the Obama Administration’s legal arguments.

University of Notre Dame international law expert Mary Ellen O’Connell also said the memo should be released to reveal more about the administration’s position.

“From what we know so far, the memo is highly reminiscent of the torture memos written during the Bush administration, in which irrelevant U.S. cases and statutes are cited in order to give the CIA a green light,” she said. “The relevant international law does not permit targeted killing far from battle zones.”

The memo in question has not been released. I myself accept there might be similarities between these memos and the “torture” memos, although I am guessing from Holder’s speech (and Marty Lederman’s interventions here) that the basis for the targeted killings are somewhat narrower.  Still, by invoking the Bush Administration “torture” memos, O’Connell is not trying to give a compliment to David Barron, Marty Lederman, and Harold Koh (all of whom presumably had some role in developing this legal memo).

Whether or not they release the memo, I think the way the Obama Administration has handled the legality of targeted killings issue has helped them with respect to both popular and elite opinion. By offering more or less public legal defenses, they avoid the charge that there is a dark conspiracy somewhere.  Jane Mayer has left them alone.  The public is with them.  A lesson, perhaps, for the Romney Administration?

AG Holder’s National Security Speech – Text

by Kenneth Anderson

Below the fold is the written text of AG Eric Holder’s national security speech today at Northwestern University Law School.  It can be divided into two basic parts – detention and terrorist trial issues, and then targeted killing, including of a US citizen.  Bobby Chesney has initial thoughts over at Lawfare, but here is the text (I have not put it in block quotes as it is very lengthy):

Continue Reading…

Kiobel Will Be Reargued

by Julian Ku

Sometimes oral argument really does reflect what is going on in the Justices’ minds.  The Supreme Court will hear reargument in Kiobel next term (meaning October or so).

The Supreme Court on Monday put over to its next Term a major case on lawsuits against corporations for human rights abuses in foreign countries, and ordered lawyers to come back with an expanded argument on Congress’s power to pass laws that reach overseas.  The case of Kiobel v. Royal Dutch Petroleum (docket 10-1491) was heard just last Tuesday, and some of the Justices at that time questioned whether the Alien Tort Statute allowed U.S. courts to hear lawsuits for violations of international law on foreign soil.   That is the issue lawyers are to address in new legal briefs due on a schedule that runs through June 29.  The order is here.

So the extraterritoriality argument will get its full day in court, and maybe even aiding-and-abetting.  This may be the end or the new start for the ATS.

Is China Backing Off Its Maximalist South China Sea Claims?

by Julian Ku

Maybe, says M. Taylor Fravel at the Diplomat.

In a recent press conference, the Ministry of Foreign Affairs appeared to take an important step towards clarifying China’s claims in the South China Sea – and suggesting what the line might not mean.

First, the spokesperson, Hong Lei, distinguished between disputes over “territorial sovereignty of the islands and reefs of the Spratly Islands” and disputes over maritime demarcation. This affirms past statements, including a note to the United Nations in May 2011, that China will advance maritime claims that are consistent and compliant with UNCLOS. Under UNCLOS, states may only claim maritime rights such as an EEZ from land features like a nation’s coastline or its islands.

Second, and more importantly, the spokesperson further stated that “No country including China has claimed sovereignty over the entire South China Sea.”  By making such a statement, this phrase suggests that the “nine-dashed line” doesn’t represent a claim to maritime rights (such as historic rights), much less a claim to sovereignty over the water space enclose by the line.  More likely, the line indicates a claim to the islands, reefs and other features that lie inside.

To be sure, China could advance a large claim to maritime rights in the South China Sea from the islands and other features in the Spratly Islands. Although UNCLOS only permits states to claim a 200 nautical mile EEZ from islands that can sustain permanent human habitation, sovereignty over a single island can generate an EEZ of approximately 125,000 nautical miles.

Nevertheless, even articulation of a large but UNCLOS-compliant claim would offer several advantages in terms of dispute resolution.  It would clarify where China’s EEZ claims from islands in the South China Sea overlap with the claims of littoral states from their coastlines.  As a result, disputed and undisputed areas would be clearly identified.  It would also allow states to invoke the dispute settlement mechanisms of UNCLOS, Part XV, which would a negotiated settlement to overlapping claims.

Debating the Legality of an Assault on Iran’s Nuclear Facilities

by Julian Ku

I expect the legal issues arising out of a possible attack on Iran’s nuclear facilities are going to get hotter in the coming weeks. Peter Berkowitz of the Hoover Institution offers this argument in favor of the legality of Israel’s attack drawing from the doctrine of “preemptive” self defense (h/t Jack Goldsmith at Lawfare).

The charter of the United Nations affirms member states’ obligation to refrain “from the threat or use of force against the territorial integrity or political independence of any state” and, while envisaging a vigorous role for the Security Council in managing the use of force, also affirms states’ “inherent” right of self-defense.

States need not absorb a blow before they resort to military action. When threats are imminent, customary international law recognizes a right of anticipatory self-defense, though of course its scope is disputed.

Authority can be found for both a narrower and broader reading of imminence. In the “Caroline affair” of 1842, U.S. Secretary of State Daniel Webster, advancing the most stringent interpretation of imminence to make the case against the destruction by the British in 1837 of an American steamer, argued that states which have claimed a right to strike first must be able to “show a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation.”

But as Yale historian John Lewis Gaddis shows in “Surprise, Security and the American Experience,” the United States has been claiming the right to use force against emerging threats since 1818, when John Quincy Adams, President James Monroe’s secretary of state, formulated the doctrine to justify Gen. Andrew Jackson’s raids into Spanish Florida. Long after Webster settled the Caroline affair amicably, Presidents Theodore Roosevelt, William Howard Taft, and Woodrow Wilson all argued that the United States had a right to use force against failed or rogue states whose conduct endangered international order, and all ordered American troops into action on that ground.

Bruce Ackerman of Yale has quite a different take of US views on preemptive self-defense over at the LA Times.

In 1981, the United States joined in the U.N. Security Council’s unanimous condemnation of Israel’s preemptive assault on an Iraqi nuclear reactor. British Prime Minister Margaret Thatcher put it bluntly: “Armed attack in such circumstances cannot be justified. It represents a grave breach of international law.”

In standing with the Security Council to condemn the Israeli raid, the Reagan administration was embracing a tradition of U.S. statesmanship that began with Secretary of State Daniel Webster. In 1837, the British were trying to suppress a revolt in eastern Canada. Because U.S. militias were assisting the uprising, the British launched a night raid into New York state, burning a U.S. ship, the SS Caroline, and sending it over Niagara Falls.

After lengthy negotiations, Webster gained British consent to a treaty that prohibited such preemptive strikes. The two sides agreed in 1842 that a cross-border strike was legitimate only if there was a “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” This Anglo-American formula remains a part of international law today.

The United States was also the central player at the decisive moment for self-defense in the 20th century: the judgment at Nuremberg. We remember these trials for their condemnation of genocide. But this was not their central focus. The main charge was that the Nazis had waged aggressive war — and this required the Allies to endorse the limited doctrine of self-defense enshrined in traditional law.

Even when the United States felt itself to be directly threatened during the 1962 Cuban missile crisis, President Kennedy did not invoke the right of preemptive self-defense. Although the risk of mass destruction was high, the president’s legal arguments were carefully constrained: When intercepting Soviet missiles on the high seas, Kennedy relied on the regional peacekeeping provisions of the U.N. Charter.

I’ll admit up front that I don’t find Ackerman’s precedents terribly powerful.  The Caroline principle sounds good, but there is little evidence that either the US or Britain adhered to it very consistently.  Nor does Nuremberg seem to me a very specific precedent against the factual issue here (Ackerman also fails to note that the recent ICC Review Conference at Kampala has hardly added much meat to his definition of preemptive self-defense or aggression). And Kennedy instituted what is essentially an act of war, a “blockade” of Cuba, even though he called it a “quarantine” to avoid invoking a war.

I don’t think Berkowitz’s argument is foolproof, either. But he does offer a more persuasive take to me.  In his view, Israel is uniquely threatened by a nuclear-armed Iran, whose leaders have made specific threats to use them against Israel.  Given the nature of such weapons, and the vulnerability of Israel to nuclear weapons, it is not hard to see a preemptive strike actually meeting the Caroline “instant, overwhelming, leaving no choice of means, and no moment for deliberation” standard.

All of this depends on the facts, of course.  Would a preemptive strike by Iran on Israel’s facilities also be legal, for instance? I think not, because Israel has not made credible threats (or any threats) to use those weapons, which it does not even acknowledge having.  But this is the kind of factual issue that needs parsing, and which is murky enough that we may get no satisfactory resolution of the legal question.

AG Holder to Address Al-Awlaki Targeted Killing

by Kenneth Anderson

Bobby Chesney reports:

In late January, Daniel Klaidman reported that the administration was inclined to have Attorney General Holder give a major speech specifying additional details regarding the legal framework governing the use of lethal force against Anwar al-Awlaki. That time has now arrived. DOJ released a statement last week indicating that the AG will give a major address on national security at Northwestern Law (congrats to NW’s new dean–and my former colleague–Dan Rodriguez for landing this rather big fish) at 3:30 central time this Monday (the 5th). Once the text is available, we will certainly have a link to it, and commentary, here [at Lawfare].

I imagine us folks here at OJ will have some commentary on this as well.  Stay tuned.  Update: Also at Lawfare, Rick Pildes argues that government silence undermines terrorism policies – an observation that I agree with, and which I make in similar terms at Lawfare as part of a comment on the possible operational role of the CIA in Afghanistan once US combat forces are formally gone.  As Pildes says:

In an earlier post, I explained why the credibility and sustainability of government policies on terrorism require government to be more forthright about the bases and explanations for its actions in this arena. In that post, I argued that the general dynamic of terrorism policy requires government to accept greater responsibility to explain its actions: “government actors need to recognize that these kinds of coercive and less familiar powers will understandably and predictably trigger concerns in many quarters about whether what is being done is justified; whether the actions rest on sound reasons; and whether the government is using these powers in appropriately restrained ways, including showing appropriate respect for the interests and values that these policies sometimes override (that is, are these values being compromised no more than necessary to accomplish the government’s legitimate aims). If government is going to use these powers, yet maintain credibility, it needs to “give back” to these understandable concerns by being more forthcoming than has typically been the case.

In this post, I want to explain why the political economy of public discourse on terrorism policy provides a further reason government must recognize the need to engage with the public. Government today is in a constant battle for its own credibility. In the context of terrorism policies, numerous non-governmental organizations now exist (unlike many decades ago) whose essential purpose is to reflect distrust of government; to monitor government; and to criticize and challenge government, in part, as these groups would see it, to keep government honest. Precisely because these groups have no direct political power, one of their main roles is to seek to mobilize public opinion, including through a strong media presence.

But few if any countervailing non-governmental organizations are devoted, of course, to the opposite perspective — that is, to defending government action as their raison d’etre. And modern journalistic culture, too, is based on the view that the media needs to turn a constantly skeptical or demanding eye on government policies, particularly coercive and less familiar ones. Partisan political actors, too, have their own incentives to seek to undermine the credibility of their opponents in power, including with arguments alleging lawless action. In this larger context, government simply has to be an active, full, constant participant in order to defend and justify the credibility of its actions, including their legal basis. An occasional government spokesperson offering a few words in explanation is far from sufficient.

I put a related argument this way, referring to an AP story by Kim Dozier reporting government discussions (denied by the Pentagon) that, following the formal exit of US combat forces from Afghanistan, elite units of SEALS, Rangers, JSOC forces, Afghan proxy forces, etc., might be tasked under CIA command, in the way that the attack on Bin Laden was carried out by SEALS but under operational command of the CIA: Continue Reading…

Human Rights Litigation in State Courts and Under State Law

by Roger Alford

Kudos to Chris Whytock for a wonderful conference yesterday at UC Irvine addressing the topic of human rights litigation in state courts and under state law.

The timing of the conference could not have been better, coming on the heels of the Kiobel oral argument on Tuesday, in which the principal defense of Kathleen Sullivan was that corporations should be held liable under state and foreign law, not international law. “We do not urge a rule of corporate impunity here,” she argued on Tuesday. “There can … be suits under State law or the domestic laws of [other] nations, but there may not be ATS Federal common law causes of action against corporations.”

The general (but not unanimous) consensus at the conference seemed to be that Kiobel went badly for the petitioners, and that we should anticipate a 5-4 decision favoring the corporations. If so, then what would that post-Kiobel world look like? I asked that question of Paul Hoffman, who argued for Esther Kiobel before the Supreme Court on Tuesday, and he said in such a world human rights lawyers would regroup and continue to bring cases under the ATS against corporate officers, and bring diversity or pendant state law claims against the corporations. Beth Stephens reminded the group that in the early days of the ATS plaintiffs almost always included pendant state laws claims in their complaints, and with recent setbacks they have returned to that practice, witness Doe v. Exxon.

There were many wonderful presentations, but my main take-away from the conference was that public international lawyers better become conversant in private international law. If common law state torts for wrongful death, battery, and false imprisonment are the basis for causes of action for international human rights litigation, then state choice of law rules are going to become the rage for human rights practitioners. We should all start reading the conflict of laws treatises of Patrick Borchers and Symeon Symeonides again, and start considering the constitutional and international law limits of the extraterritorial application of common law torts. Fortunately, some incredibly productive young guns like Chris Whytock, Trey Childress, and Anthony Colangelo are filling the gap.

My own presentation suggested that international human rights lawyers should pay more attention to the FSIA § 1605A terrorism cases filed against Iran, Libya, and Sudan. In these under-analyzed cases plaintiffs have been winning billions of dollars in judgments using state tort laws as the cause of action for terrorist attacks in Lebanon, Kenya, Tanzania, and Israel. Federal courts are interpreting District of Columbia choice of law rules to allow for the application of victim domiciliary tort laws to determine liability and damages. It may sound strange that the wrongful death tort laws of U.S. states are the basis for finding billions in liability for foreign terrorism, but that is what federal courts are finding in dozens of cases rendered in the past fifteen years. By virtue of FSIA § 1606, these findings are directly relevant to questions of private individual and corporate liability for international human rights violations.

Symposium articles will be published in the UC Irvine Law Review, which will surely be worth careful reflection.

One More Kiobel Post: The Importance of Sosa

by Julian Ku

Here is the final post in my conversation with Prof. David Weissbrodt on Kiobel and corporate liability under the Alien Tort Statute.

It is worth emphasizing why I think the “choice of law” question is so crucial to resolving this case (and why Justice Breyer agrees with me on this point). In its 2004 decision, Sosa v. Alvarez-Machain, the Supreme Court decided that the Alien Tort Statute authorized the recognition of causes of action that were “specific, universal, and obligatory.” In that case, the Court actually rejected the norm of “arbitrary detention” as insufficiently universal as applied to the facts of that case.

The idea behind the Sosa standard, the Court emphasized, is that federal courts should only be allowing lawsuits over norms that are uncontroversial and which other countries would not dispute. Reaching out and creating “disputable” causes of action overstepped the narrow mandate the federal courts have under the Alien Tort Statute, and raised the potential of federal courts causing conflicts with the President and Congress on the one hand, or with foreign countries on the other.

This baseline standard is important to keep in mind when evaluating Professor Weissbrodt’s arguments in favor of a general international law duty for business corporations. Althought Professor Weissbrodt marshals some interesting precedents, I seriously doubt they would satisfy Sosa’s “specific, universal, and obligatory” standard.

Continue reading here and see Prof. Weissbrodt’s post here.

The ABA Journal on Addressing the Problem of Sinking States

by Chris Borgen

The ABA Journal has a cover story about the threat posed to island states by climate change. This is a topic we have discussed on Opinio Juris at various times. Duncan wrote at length about the Maldives; I had a shorter piece here, and there are various references in the midst of other blog posts.

The Journal article is long and covers a great deal.  Either I or some of my co-bloggers will likely come back to this at length. For now, I just wanted to post a “heads-up” and highlight some points of interest regarding sovereignty and especially the human toll of sinking states:

“A small island is likely to become uninhabitable long before it disappears,” says Jenny Grote Stoutenburg, an international law scholar who is a Ph.D. candidate at the University of Hamburg in Germany. And it is at the moment when the last remaining residents flee the last inhabited island that the state would cease to exist… [snip]

It would be unprecedented for a nation to lose its statehood because its land actually disappeared, says Caleb W. Christopher, who is legal adviser to the U.N. mission of the Marshall Islands. “There’s never been a time when a government—even a small government—has vanished without somebody else coming over and taking over and succeeding it. Peru is always Peru even if another country takes it over, or if their government changes. It doesn’t just up and vanish off the face of the Earth.”

A key issue is how those nations can seek to preserve their statehood, claims to resources and national identity when they have no actual physical homeland.

Speaking at last year’s conference, Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate, Stoutenburg advised that island nations should try to keep at least some bit of land inhabitable and populated in order to anchor their claims to continued statehood… [snip]

Island nations were advised to freeze existing maritime boundaries by basing them on geographical coordinates that will not shift with retreating coastlines.

The article discusses other possible reactions to the problem of sinking sttaes, including concerted action by states-parties to the UN Convention on the Law of the Sea (UNCLOS) to draft new rules that take into account pre-existing sovereign claims prior to the loss of territory, to the idea of a non-territorial or ex situ state:

It would be made up of citizens scattered around the globe and headed by a government that would manage common resources, such as maritime resources and compensation funds; provide consular protection; maintain cultural ties and identity; and even keep alive the possibility of reunification in a new location.

However, as a law professor who writes about problems if statehood and sovereignty, it was the next two paragraphs that really caught my attention:

Heady ideas, perhaps, but some island nation citizens came away from the conference dispirited. During one question-and-answer session, a highly emotional resident of the Republic of the Maldives, a cluster of atolls and islands in the Indian Ocean where the average elevation is only about 5 feet, insisted that island nations “cannot be and should not be sacrificed on the altar of the good life of the rest of the world.”

Acknowledging such sentiments, Jariabka of Islands First says that, on an abstract level, the imminent statelessness of island nation residents is “a very interesting, sexy topic to be writing about as an academic.” But, he says, “my perception was that when you had the questions and comments, some of the government officials, the people from these islands, were visibly frustrated because they were hoping to learn how to save their islands rather than how to best manage their eventual extinction.”

And that is a good reminder for all that interesting legal conundra for some can be life-and-death issues for many.

I’ll have more to say on these and other sovereignty issues in another post. For now, I recommend reading the Journal article as well as Duncan’s previous post.

Sovereigntism (Straight-Up), Courtesy of John Fonte

by Peter Spiro

The Hudson Institute’s John Fonte has a new book out, Sovereignty or Submission: Will American Rule Themselves or Be Ruled by Others? (Encounter Books).  From the title you don’t have to know John to know what his answer would be.  Fonte is an unabashed sovereigntist, vaunting its “Philadelphian” strain (located in the people, as opposed to the Westphalian variant based in the state).  He’s also a purist on the issue.  Unlike some, he’s against the WTO along with all those other Geneva institutions; he’s philosophically opposed to international institutiona in an admirably non-instrumentalist way.

It’s a good read, full of invective against the “Global Governance Party”, NGOs, trasnationalist academics, and various “post” phenomena (post-modern, post-national, post-constitutional).  I actually agree with a lot of what John has to say, at least as a descriptive matter, and that the struggles he describes are existential.  It’s true that the rise of transnational institutions threatens the nation-state and liberalism as we have known it.

Unlike John, I don’t think it’s a reversible trajectory.  It’s mostly wishful thinking to suppose that we can stick to the vision of the Founders.  The book also tends to fetishize the virtues of state-based governance.  (He likes to point out, for instance, how the faceless EU bureaucracy has taken over the regulation of German beer and sausage; but who among us can name the commissioners of the FDA and FTC?)  He also assumes that the “national idea” remains well anchored in the shared associations, language, and history of a people.  But globalization in my view can’t help but overwhelm those solidarities, so that the notion of popular national sovereignty increasingly rests on artificial foundations.  Philadelphian sovereignty, in short, is an idea that had its moment but is now unsustainable.

But this is an important, honest book.  Along with the work of fellow traveler Jeremy Rabkin, Fonte’s writing is an invaluable point of reference, an intellectual distillation of the old order as its edifice starts to crumble.  And John is always civil even on the attack, which makes for good debating.  One couldn’t ask for a better sparring partner.

FP Misdescribes TVPA Lawsuit Against Mahinda Rajapaksa

by Kevin Jon Heller

Like many readers, I never miss FP’s online “Morning Brief,” which provides links to numerous interesting international developments.  It’s an incredibly useful and erudite feature — which is why I was so surprised to see the following headline this morning:

A U.S. court dismissed charges against the president of Sri Lanka for war crimes.

Um, no.  The case did not involve war crimes charges against Rajapaksa; the court dismissed a civil lawsuit against Rajapaska under the Torture Victims Protection Act 1991 (TVPA) on the ground that the TVPA recognizes head of state immunity.  That’s a pretty big difference — especially as international tribunals have never recognized head of state immunity for international crimes.  (Domestic courts, of course, are a different story.)

One More Almost Forgotten Argument Against Corporate Liability

by Julian Ku

Anton Metlitsky, an attorney that is defending Rio Tinto from a similar ATS lawsuit as Kiobel’s, drops me this useful reminder about another hurdle facing the Kiobel plaintiffs.

In a recent post, you say that “the only way plaintiffs will prevail is if they convince a majority of the Court (meaning Justice Kennedy), that the question of corporate liability is really a question of remedies, and that is a matter left to the domestic common law of the U.S.”  I think there is a strong argument that plaintiffs should lose even if the question of corporate liability is controlled by domestic law (i.e., federal common law).  As we argued at length in an amicus brief we filed in support of the respondents, corporate liability is not automatic under federal common law.  For example, the Supreme Court has held that there is no corporate liability for implied federal common law actions under Bivens, which are similar in kind to the implied federal common law actions that the ATS empowers federal courts to imply under Sosa.  And there are several good reasons, we argue, for the Court to hold that federal common law should not allow private actions against corporations.  Most important, it appears likely from the Mohamad argument that the Court will hold (as most lower courts have held) that the TVPA does not allow for corporate liability.  That is highly significant to the corporate ATS liability question, because enactment of the TVPA was the one time Congress actually considered what an express cause of action under the ATS should look like, and it chose to preclude suits against corporations.  Supreme Court precedent concerning other areas of federal common law, such as maritime law, make clear that the Court should heed the policy limits Congress sets forth in statutes when crafting analogous common law causes of action.  Thus, the TVPA’s limitation of liability to natural persons should lead the Court to conclude that federal common law claims under the ATS alleging violation of similar human rights norms should be similarly limited.

To be sure, the TVPA is limited to torture and extrajudicial killing, while courts have recognized causes of action under the ATS for other human rights norms.  But when the TVPA was enacted, the two major ATS human rights cases were Filartiga and Tel-Oren, which dealt only with the norms covered by the TVPA.  Indeed, the TVPA was expressly intended to provide an express cause of action to support the type of action recognized by the Second Circuit in Filartiga and by Judge Edwards in Tel-Oren, in case the Second Circuit and Judge Edwards turned out to be wrong, and Judge Bork’s view that the ATS was only a jurisdictional statute requiring further action by Congress turned out to be right.  There is no reason to think Congress would have treated other related human rights norms any differently.  The Kiobel petitioners also argued in their reply brief that the TVPA does not have much to say about the scope of the ATS action because the TVPA was only meant to “supplement” the ATS.  But that argument only works if (as Filartiga and Judge Edwards appear to have believed) the ATS itself created a cause of action.  Sosa rejected that position, holding that the ATS was jurisdictional only, but that it empowered courts to imply a narrow set of actions under federal common law.  And when it comes to federal common law, the courts should follow Congress’s lead, not the other way around.  Whether corporate liability should be allowed for some human rights violations and not for others is a question that Congress, not the courts, should decide, particularly in an area where the risk of interference with the political branches’ foreign policy prerogatives is so high, and where Sosa itself declares that courts must exercise “great caution” in fashioning new actions under the ATS.

Their amicus brief is here. I think this is also a good argument, and might very well be another way for the Court to avoid the unattractive “corporations are not liable for torture” argument, although it ultimately will look and sound the same. Still, worth thinking about.  I like especially the point that there is no corporate liability in a Bivens action (a tort claim for violation of one’s constitutional rights).

This Year in Sudan and South Sudan: CSIS Briefing with Jok Madut Jok and John Ryle

by Kenneth Anderson

Sudan and newly-independent South Sudan have featured in many news stories over the last several years; a headline in today’s Washington Post, for example, reads “South Sudan: Sudan bombed 2 oil wells in South Sudan, is massing troops near disputed border.” Elections and the formation of a new state, the on-going saga of Sudan’s leaders and the International Criminal Court, and most recently the threat of more conflict have ensured attention from the international community and the US foreign policy and national security teams.

On March 9, Friday, 9-10:30 am, CSIS will host at its Washington DC offices a panel discussion on current events in Sudan and South Sudan by two of the leading academic and NGO experts: Loyola University (Los Angeles) anthropology professor Jok Madut Jok, who is also Undersecretary, Ministry of Culture and Heritage of his homeland, South Sudan; and John Ryle, executive director of the Rift Valley Institute, the leading NGO offering policy and academic expertise on the region, and professor of anthropology and human rights practice at Bard University.  The event  will be moderated by Richard Downie, Deputy Director of the CSIS Africa Program.  RSVP information below the fold. Continue Reading…

VJIL’s New Online Digest

by Deborah Pearlstein

For those interested in expanding their international law reading and/or writing horizons, the Virginia Journal of International Law is now welcoming submissions to its new online companion, the Virginia Journal of International Law Digest (VJIL Digest). The idea, which seems part of a useful trend among a number of the student edited law journals, is to publish short pieces focusing on emerging topics. Submissions should be roughly 3,500 words, lightly footnoted, and may be sent to vjilonline [at] vjil [dot] org.