Archive for
April, 2012

Netanyahu and the Terrible, Horrible, No Good, Very Bad Week

by Kevin Jon Heller

Of course, that means it’s been a much better week for anyone who isn’t so keen on the prospect of attacking Iran.  I’m not sure the nails are in Netanyahu’s political coffin quite yet, but the carpenters are certainly gathering their supplies.  First up, Lt. Gen. Benny Gantz, Chief of Staff of the IDF, rejecting the notion that Iran is run by lunatics hell-bent on nuclear war:

Gantz said: “[Iran] is going step by step to the place where it will be able to decide whether to manufacture a nuclear bomb. It hasn’t yet decided whether to go the extra mile.”

The chief of staff of the Israel Defence Forces said the decision to develop nuclear weapons is only in the hands of the supreme leader, Ayatollah Ali Khamenei.

“If the supreme religious leader Ayatollah Ali Khamenei wants, he will advance it to the acquisition of a nuclear bomb, but the decision must first be taken. It will happen if Khamenei judges that he is invulnerable to a [military] response,” he said in the interview published on Wednesday.

“I believe he would be making an enormous mistake, and I don’t think he will want to go the extra mile.”

“I think the Iranian leadership is composed of very rational people. But I agree that such a capability, in the hands of Islamic fundamentalists who at particular moments could make different calculations, is dangerous.”

According to Gantz, western pressure on Iran by means of diplomacy and economic sanctions has had an effect on Tehran’s rulers but a military response is still an option, albeit the last.

Next up, Yuval Diskin, the former head of Shin Bet, Israel’s intelligence service, being remarkably blunt about Netanyahu’s dismal tenure as Prime Minister…

John Brennan Speech on “Strikes Targeted at Individual Members of Al-Qa’ida”

by Marty Lederman

Brennan’s speech, given today at the Wilson International Center, can be found here.  I don’t have time to blog about it now; but in any event, it is more detailed than the previous Administration statements on the same subject and I think it largely speaks for itself.  Substantive comments welcome.

Weekday News Wrap: Monday, April 30, 2012

by Jessica Dorsey

Welcome to the Blogosphere, Communis Hostis Omnium!

by Kevin Jon Heller

The blog, which has been uniformly excellent to date, is dedicated to exploring maritime piracy in all its dimensions.  Here is the description:

Piracy is on the rise because of failed states and crushing poverty. A majority of modern pirate attacks originate in the Horn of Africa in Somalia although there is now a growing problem in the Gulf of Guinea. This blog is a study in the legal and practical problems associated with piracy off the coast of Somalia and elsewhere. It examines some of the root causes of piracy, attempts to prevent or stop attacks, and mechanisms for the prosecution of suspected pirates. The prosecution of suspected pirates raises a myriad of legal issues that begin with arrest and collection of evidence, proper venue and jurisdiction, to name but a few.

The blog is run by Roger L. Phillips and Matteo Crippa, both of whom are legal officers with United Nations Assistance to the Khmer Rouge Trial.

Welcome, Communis Hostis Omnium!

Upcoming Events: April 29, 2012

by Jessica Dorsey

This is the fourth installment of our new feature; last week’s announcements can be found hereIf you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Jurisplease contact us.

Calls for Papers:

Upcoming Events:

Is a Use of Force the same as an Armed Attack in Cyberspace?

by Duncan Hollis

I’m just back from the U.S. Naval Academy and a great conference put on by the Stockdale Center for Ethical Leadership:  Warfare in a New Domain: The Ethics of Military Cyber Operations. Ed Barrett pulled together a truly impressive group of technologists, international lawyers, philosophers, ethicists, active duty military personnel and US Government officials to weigh in on existing cyberthreats and the appropriate legal and ethical frameworks for responding to them.  I may blog more of the details later, but here are three quick take-aways from our two day conversation:

1) Cyber is hot.  When I first started writing in this area, I frequently had to fend off charges that this was just fodder for international lawyers who happened to like science fiction.  We’ve come a long way since those days.  Cybersecurity is front and center in Congress, and cyberthreats and cyber-capacities have moved into the front seat in national security circles.  Although I’m not sure everyone agrees with the cyber-arms race idea, it is true that the technological capacity is on a steep upward trajectory and the actors involved are constantly expanding (I’m told, for example, that Zimbabwe is the latest in a long list of States to get together its own cyberforce).

2) We don’t agree on why cyber is hot.  Over the course of the conference, there were dissonant voices on what the cyberthreat really is.  First, there’s what we might call the “Digital Pearl Harbor” crowd — folks worried about, and looking to head off, a massive, large-scale cyberattack with significant effects on the civilian populace (think — shutting down the U.S. power grid).  A related view, are those clearly worried about how nation States will deploy cyber in armed conflicts, and what methods exist to deter escalation to such conflicts.  In contrast, there is a growing, and vocal group, who say that to focus on cyberwar or the most dangerous cyberthreats is to ignore the real problem — China.  This is the “China’s eating our lunch” crowd, who blame cyberespionage by China and its proxies for the theft of petabytes of data, including intellectual property, business plans, R&D, etc from the private sector in what some call the greatest wealth transfer in history.  Finally, there are those who view the cyberthreat as more diffuse, although perhaps no less dangerous.  This view may best be summarized by the idea of a “death by thousand cuts”; that is, we shouldn’t expect drama in cyberspace so much as low-level but systemic attacks and threats that in the aggregate may significantly impact the United States as a nation.

3) We don’t know how law should deal with State cyber operations.  For starters, we are seeing (just as we have in the terrorism context) claims that lawyers and law are getting in the way; that States need to operate in this new environment without rules. For those of you who’ve not seen it, I recommend this recent exchange between Stewart Baker and Charlie Dunlap on the relative merits (and demerits) of this idea.

Then, even among those willing to concede a role for law and lawyers, there are significant differences of opinion on the relevant legal frameworks.  The US and like-minded States have taken the position that the Law of Armed Conflict (LOAC) can apply in cyberspace; Russia agrees, but insists other new norms must be applied to limit “information” that is destabilizing as well.  For its part though, China says they’re not sure the LOAC has any role to play at all, leaving the issue to law enforcement or organizations like the ITU.

Finally, even on the more specific legal and ethical issues that formed the core of the McCain Conference this year — namely military cyber operations — it seems we’re still trying to figure out how to analogize existing rules into cyberspace.  We’ve been doing that for some time now, but I must say I’m surprised to see how little progress has occurred.  For example, I was struck by how many reasonable people disagreed on the question of whether Stuxnet constituted a use of force or an armed attack.

Which brings me to my last point, and one that was quite contested at this conference — whether there is a gap between a prohibited use of force under UN Charter Article 2(4) and an armed attack sufficient to trigger an Article 51 right of self-defense.  Although I’d always understood that simply because something constituted a use of force, that didn’t mean that it rose to the level of an armed attack for self-defense purposes.  In other words, there is a gap between armed attack and force.  But at least one US government lawyer suggested at this conference that there is no such gap in cyberspace, and that this may even be the official US Government position for cyberspace.  I’d be interested in what readers make of this position, both as to the original kinetic understanding of the relationship between Article 2(4) and 51 and how it translates to cyber.  Simply put, are all uses of force in cyberspace armed attacks?

Weekend Roundup: April 21-27, 2012

by Jessica Dorsey

Kevin Jon Heller kicked us off this week with posts about the ICC’s report regarding Gaddafi’s situation in Libya and the infighting at the ICC between the Prosecutor and Libyan authorities. He also added a post about the OPCD report outlining Saif Gaddafi’s attitude about the ICC.

Peter Spiro previewed the Arizona SB-1070 immigration case before the Supreme Court, discussing why the court should have ducked and also expanded upon his NY Times op-ed before giving a recap of Wednesday’s oral arguments. Julian Ku also pondered the end of federal foreign affairs exclusivity with respect to this case.

Julian additionally analyzed the ATS in the Supreme Court’s decision in Mohamed v. Palestinian Authority and discussed how the decision may affect re-argumentation in the Kiobel case. He added a post showcasing a roundtable in DC with John Yoo, promoting their new book, Taming Globalization, and pointed out that despite China’s growth, infrastructural problems remain.

Deborah Pearlstein commented on Charlie Savage’s NY Times article about executive power, and after a thought-provoking comment by Savage himself, clarified her position.

Leading up to Thursday’s verdict in the Charles Taylor case, Kevin Jon Heller reminded us that Taylor is not the first former head-of-state to be judged by an international tribunal and following the verdict, Kevin posted in response to the verdict and about the one “dissenting” voice of alternative Judge Sow.

This week’s main event was the Symposium on the Functional Approach to the Law of Occupation. During the symposium:

  • Aeyal Gross explored what the “functional approach” to occupational law actually is.
  • Sari Bashi reluctantly defended the law of occupation here, explaining why Israel is responsible as an occupying power in Gaza and why it matters.
  • Valentina Azarov discussed the intricate challenge of termination of belligerent occupation and highlighted how the legal framework falls short of answering more practical questions about transition of sovereignty.
  • Matthew Saul analyzed the role of the right to self-determination on the functional approach to occupational law.
  • Pnina Sharvit-Baruch posed the questions whether the Gaza Strip is still occupied by Israel, helping to answer the larger question of whether Israel is under a duty to provide for the well being of the occupants in the Gaza Strip.
  • Elizabeth Samson also discussed effective control and whether Israel’s actions falling short of occupation were relevant to maintaining security and therefore somehow justifiable.

Turning now to the responses,

  • Gross commented about Azarov’s binary approach and wondered if that approach actually created what could be called a “double bind.” 
  • Bashi responded to Azarov’s and Sharvit-Baruch’s posts reflecting that both approaches seem to undermine accountability in some respects.
  • Saul gave a general response with his thoughts on multiple postings, especially with respect to the scope of the functional approach.
  • Sharvit-Baruch commented about the status of the Gaza Strip and underlined that the inherent complexity of such a situation must be taken into account.
  • Azarov finished the symposium by questioning the very term “functional.”

Thank you to all of our guest contributors for a fantastic symposium. Have a great weekend, everyone!  


Chinese Human Rights Activist May Have Fled to U.S. Embassy, But He Won’t Get Asylum

by Julian Ku

China’s famous human rights activist Chen Guangcheng (who even Christian Bale was beat up when he tried to visit) has somehow managed to escape from his two-year house arrest*  and may have made his way to the U.S. Embassy in Beijing.  Chen has released a powerful web video detailing the physical abuse he and his family have suffered during his house arrest and demanding that the Chinese government act.

If Chen truly has made it to the U.S. Embassy, he is hardly home free.  If, for instance, he seeks political asylum, he is out of luck.  I will let either Duncan or Peggy correct me on this if I am wrong, but I believe as a matter of policy, the U.S. does not consider asylum requests at their consulates and embassies.  As a matter of law, the U.S. does not view itself bound by the Refugee Convention to do so.  Of course, Chen may seek “sanctuary” but the U.S. has no obligation to give him such sanctuary and will only do so in exceptional or extraordinary circumstances.  Nor does China have any obligation to allow the U.S. to spirit him out of the country.  (I’ve been the U.S. Embassy in Beijing several times and I am a little surprised that Chen could have gotten past the Chinese guards who surround the place without the assistance of U.S. embassy personnel).

I should add that Chen’s public statements suggest he is NOT seeking asylum and he does not want to leave China (his family is still in house arrest).  But with Secretary Clinton headed to Beijing for a few days, this will no doubt become an issue in the already uncomfortable U.S.-China Strategic Economic Dialogue. And perhaps she can chat with Mr. Chen when she gets a snack at the Embassy kitchen. Mr. Chen may be a houseguest for a while.

*originally, the post read “six year” house arrest, but Mr. Chen was actually in prison for four years prior to his two-year house arrest.

Weekday News Wrap: Friday, April 27, 2012

by Jessica Dorsey

Operationalising Functionality: Questioning the Term ‘Functional’

by Valentina Azarova

[Valentina Azarov is a Lecturer in International Law and Human Rights, Al-Quds Bard College, Al-Quds University, Palestine (on leave)]

This is the fifth response in our Symposium on the Functional Approach to the Law of Occupation. Earlier posts can be found in the Related Links at the end of this post.

Those who believe in the progressive development of international law but remain fully aware of the deficiencies of its enforcement, have good reason to view the proposed functional approach to the law of occupation with cautious optimism. However, there must be a further elaboration and concretization of its mechanism or process, lest this approach to operationalising the way the law of occupation is applied contributes to the law’s indeterminacy. This brief response therefore seeks to ask guiding questions and postulate some predicaments in order to elaborate the content of the functional approach, and explain the ways in which it relates to the binary, or on/off, approach. Some basic considerations include: what are the elements and purpose of the protective function of the law of belligerent occupation? How is this function expected to be fulfilled, operationally?

The interpretation of the law of occupation I suggest is teleological and genealogical: conscious of the historical context of the law, the manner in which its provisions were drafted and the purpose they were meant to serve. Most contributions to this symposium have shared this interpretation, in that they have taken as a starting point the fact that the law of occupation is charged with the arduous task of tying the hands of the occupier in order to safeguard against abuses of the law.  Given that belligerent occupation is a phenomenon of war, and that it would be unwarranted to assume good faith between enemies in wartime, no commonality of interest should be presumed to exist between the occupier and the occupied population. The law must thus guard against the occupier’s adoption of the ‘pick and choose’ approach, especially in situations where an occupier maintains ‘effective control’ but attempts to limit its scope of influence so as to claim that it has relinquished its responsibility in certain domains. The law of occupation was meant to protect the occupied population against such disingenuous, abusive attempts by the occupier to mask the extent of its continued influence over their lives.
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The Status of the Gaza Strip – a Short Response

by Pnina Sharvit-Baruch

[Col. (Ret.) Pnina Sharvit Baruch is a Former Head of the International Law Department of the IDF Military Advocate General’s Office]

This is the fourth response in our Symposium on the Functional Approach to the Law of Occupation. Earlier posts can be found in the Related Links at the end of this post.

I am grateful for the opportunity to respond in brief to some of the points made in the excellent contributions of fellow bloggers.

At the outset, as a former practitioner, I admit that I prefer functional approaches to the law over rigid dichotomies. From my experience, strict formulas are unsatisfactory when facing complex situations and the situation between Israel and the Palestinians is as complex as they come.

As noted in my earlier post, I think it questionable to view the functional approach to occupation offered in some of the posts as reflecting the existing law, as opposed to lege ferenda. However, I set this question aside for present purposes and wish to discuss this concept on its merits.

The underlying problem with the concept of “functional occupation” is that it takes a situation which does not possess the most fundamental feature of occupation – effective control – and insists on still calling it occupation. This is done not because the set of rights and obligations pertinent to occupation are suitable to such a situation, but rather in order to “prevent occupiers from relinquishing responsibility when control is transformed” and to ensure that “as long as an occupying party continues to exercise some degree of control, it will continue to be held accountable” (as Gross puts it). In other words the reasoning is not based on finding the suitable categorization of a given situation and applying the relevant rules thereto, but rather on deciding which rules should apply and then terming the situation accordingly. This is a conceptual problem. Even if one believes that certain obligations should be imposed even after effective control has ended, it may well be that the legal basis for imposing them lies beyond the limits of the law of occupation. This is my reading of the Al-Bassiouni judgment given by Israel’s Supreme Court.
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One “Dissent” in the Taylor Case

by Kevin Jon Heller

At International Criminal Law Bureau, Kirsty Sutherland calls attention to a surprise moment during the Taylor verdict that has received, to the best of my knowledge, absolutely no attention from the media:

In an unexpected turn of events, as Justice Lussick (Presiding), Justice Doherty and Justice Sebutinde rose to leave the courtroom after delivering the verdict, Justice Sow addressed the Court:

 “The only moment where a Judge can express his opinion is during the deliberations or in the courtroom, and, pursuant to the Rules, when there are no serious deliberations, the only place left for me is the courtroom. I won’t get — because I think we have been sitting for too long but for me I have my dissenting opinion and I disagree with the findings and conclusions of the other Judges, because for me under any mode of liability, under any accepted standard of proof, the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt by the Prosecution. And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with all the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is headed for failure.”

Hearing the voice of their counterpart did not deter Justices Lussick, Doherty and Sebutinde from walking out. Justice Sow’s microphone immediately cut out and a curtain was drawn across the public gallery. Nonetheless, he persisted to air his views to those present, unaided by a microphone.

Pretty stunning stuff.  Judge Sow’s views are legally irrelevant, of course, because he was the alternate judge.  But he is obviously intimately familiar with the evidence in the case, so his “dissent” supports the idea that the prosecution’s case was remarkably weak.

Occupation Law Symposium: Response by Matthew Saul

by Matthew Saul

[Dr. Matthew Saul is a Research Fellow at the Norwegian Centre for Human Rights and Lecturer at Durham University, UK (on leave)]

This is the third response in our Symposium on the Functional Approach to the Law of Occupation. Earlier posts can be found in the Related Links at the end of this post.

Thank you to all of my fellow symposium participants for a very interesting set of posts.

This symposium has clearly raised a number of very important issues. One point that I find particularly interesting is the scope for there to be a difference in the significance of the functional approach in the context of the establishment of an occupation and in the context of a reduction of an extant occupation.

In this respect, I agree with Sari Bashi that the level of control over territory that is necessary for the commencement of the law of occupation is not the same as for its continuation. However, I think it is also important to recognize that there is likely to be a difference in the nature of the governance space that will surround the occupied functions in the two contexts. In the establishment context, the governance space that is left unregulated by the law of occupation (by limiting the application of the law of occupation to the functions undertaken by the external power) has a character that has been created by the target state and its people. In contrast, in the disengagement context, the governance space that is to be left unregulated can be expected to have been affected by the prior, more extensive occupation. Indeed, there is a risk that the scope for the level of regulation of the law of occupation to be reduced in line with a reduction in the direct control of the occupiers will encourage an occupier to exert more influence on domestic politics in the period when it is in full control of the territory. This would be as a means of ensuring that when it reduces control – and thereby benefits from a reduction in obligations and an improvement in the way in which its involvement is projected – matters will still develop across the whole of the territory in accordance with its preferences.

One way to address the scope for the functional approach to be exploited by occupiers could be for some criteria to be posited as to the sort of conditions that must prevail in the space created by a partial disengagement for the functional approach to be activated. In this respect, Aeyal Gross recognizes that there is an issue, when he suggests that ‘the functional approach must not mean that occupiers are relieved of their duties when there is no one else exercising them, or when the occupier’s behavior prevents a legitimate sovereign from exercising them.’ The two aspects highlighted by Aeyal could serve as criteria for determining when it is appropriate to adopt the functional approach in the context of disengagement, but both could benefit from more detail. For instance, should there be a quality threshold in terms of the exercise of certain functions in the space left by disengagement?
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Responsibility without Control; Control without Responsibility

by Sari Bashi

[Sari Bashi is Executive Director at Gisha – Legal Center for Freedom of Movement.]

This is the second response in our Symposium on the Functional Approach to the Law of Occupation. Earlier posts can be found in the Related Links at the end of this post.

It has been a pleasure to read all the contributions and Kevin’s thoughtful introduction. I want to respond to Valentina Azarov‘s and Pnina Sharvit Baruch‘s posts, which in some ways are mirror images of each other. I enjoyed them both but respectfully express reservations about each. Valentina’s post appears to undermine accountability by imposing on Israel responsibilities that it cannot fulfill; Pnina’s post appears to undermine accountability by exempting Israel from responsibilities that only it can fulfill.

I’m not sure what it means to say, as Valentina does, that an occupier maintains “an overarching responsibility to manage daily affairs in the occupied territory”, while at the same time insisting that the occupier is not responsible for “defaults made by the local authorities”. If the occupying power is responsible for managing daily affairs in the occupied territory, either it must do so directly or it must take responsibility for the actions of the local authorities managing those affairs. Otherwise, it is not clear what the meaning of responsibility is. I don’t believe that the law of occupation requires Israel to step in to correct actions of the Palestinian Authority in the West Bank or the Hamas government in Gaza. If, as Matthew Saul suggests, the sovereignty interest protected by Article 43 of the Hague Regulations is the right of the people to self-determination, forcing the occupier to interfere would seem contrary to the purpose of Article 43 (notwithstanding the important questions that Matthew raises about the quality of the autonomous space being protected). Similarly, imposing responsibility for areas outside the control of the occupier would also seem to violate an entrenched principle of jus in bello, which adopts a neutral stance to the fact of conflict but seeks to regulate the way in which it is waged, including regulation of the administration of captured territory.  My understanding of state practice and the case law is that the law of occupation does not require the occupier to deepen its control in order to manage the territory. We might imagine a situation in which, in order to provide for the needs of the civilian population, an occupier decides to conquer a neighboring seaport, claiming it must do so to restore access to commercial trade and civilian transportation routes cut off by the armed conflict. Certainly IHL would not require an occupant to do so in the name of fulfilling its obligations under Article 43 of the Hague Regulations! To say that Article 43 requires occupiers to fulfill obligations beyond their control is to dilute the nature of the responsibility imposed by IHL.
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The Binary Approach to Occupation: A Double Bind?

by Aeyal Gross

[Aeyal Gross is a Professor at Tel-Aviv University, Faculty of Law.]

This is the first response in our Symposium on the Functional Approach to the Law of OccupationEarlier posts can be found in the Related Links at the end of this post.

In her contribution to this symposium, Valentina Azarov asks who would decide, were the law of occupation not to apply in a “holistic” fashion, what set of obligations binds the occupying power at any given point. She expresses a concern that applying different sets of obligations at different points in time might lead to the fragmentation of the law of occupation and turn the law from a “set menu,” intended to restrain and control the occupier, into separate “dishes,” which the occupier could pick and choose as it likes.

Azarov then suggests that the “binary” and the “functional” approach may actually be more of the same—alongside the “general” principles of the law of occupation  are “situational” norms, to be reviewed by subject-specific factual tests. Though “overall responsibility” always stays with the occupier, then, what Azarov calls “specific defaults made by the local authorities” may not necessarily be attributed to it. Any approach failing to converge the “binary” and “functional” approaches would, in her words, “disingenuously entrust the occupier, who is in the dominant position vis-à-vis the occupied population and the displaced legitimate sovereign, with the ability to determine the extent of its own obligations, with no scrutiny over its actions.”

Azarov, then, worries about the potential risks of a functional approach. Yet, it is precisely my concern over the existence of such a “pick and choose” regime that led me to develop it. As I note in my original post, the question of whether a situation falls into the category of “occupation” is often controversial. When we stay within the binary approach, even if we try to incorporate a functional approach within it, we are forced to remain within the “occupation/ sovereignty” polarity that, in practice, already allows the dominant side to pick and choose, as evident in the Gaza case (addressed in detail in Sari Bashi’s post).

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Israel, Gaza, and the End of “Effective Control”

by Elizabeth Samson

[Elizabeth Samson, Esq. is a Visiting Fellow at the Hudson Institute]

This is our sixth post of our Symposium on the Functional Approach to the Law of Occupation. Earlier posts can be found in the Related Links at the end of this post.

I am very pleased to contribute to this symposium and to offer an analysis of international occupation law that may bring a new understanding to the discussion of this most challenging issue.

In determining the legitimacy of Israel’s actions with respect to Gaza since Israeli disengagement from the territory in 2005, two questions must be addressed:

  • Do Israel’s actions after disengagement rise to the level of occupation under international law with respect to the legal requirements for “effective control”?; and
  • Are the Israeli actions that do not rise to the level of occupation permissible, are they relevant to maintaining Israeli security, and are, therefore, justifiable?

Brief Conclusion:

In analyzing the requirements for the international law of occupation, as well as international legal precedent, and testing the various instances that allege Israeli “effective control” over Gaza after disengagement against the standards for “effective control,” the conclusion that I have reached is that pursuant to occupation law and legal precedent, Israeli action does not constitute “effective control” and does not rise to the level required for international occupation law to apply.

While there is no question that Israel is, indeed, involved in certain aspects of life in Gaza, those actions do not rise to the level of occupation, and are necessary to maintain Israeli security in the face of the rocket attacks and general security threats emanating from Gaza.  Furthermore, while certain Israeli actions may frustrate life in Gaza (i.e. restrictions on movement, control of borders) those actions in no way are an exercise of occupation and are permissible acts that any state may undertake in relation to the territories near it.

International Occupation Law and “Effective Control”

(For a complete and thorough analysis click here for my American University International Law Review article – “Is Gaza Occupied?”)

International occupation law determines the exercise of authority in a territory by combining three requirements for “effective control” (a term of art with no definite source in international law):

  • the territory is “actually placed under the authority of the hostile army[,]” and “authority has been established and can be exercised” (Hague Regulations, Art. 42);
  • the state in power “exercises the functions of government in such territory” (Fourth Geneva Convention, Art. 6); and
  • the occupier’s authority is “to the exclusion of the established government” (U.S. v. List).

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Weekday News Wrap: Thursday, April 26, 2012

by Jessica Dorsey

Breaking: Charles Taylor Convicted — But…

by Kevin Jon Heller

The Special Court for Sierra Leone has found Charles Taylor guilty on all counts, but only as an aider and abettor — the judges have rejected the prosecution’s allegations that he participated in a JCE to commit the crimes alleged in the indictment or that he had effective control over the RUF soldiers who committed the crimes (i.e, no ordering or command responsibility).  The verdict represents a colossal victory for Taylor, even if it means that he will still receive a substantial sentence.  (Kudos to the superb Courtenay Griffiths, QC.)

Shocking.  Absolutely shocking.  What a stunning rebuke to the prosecution.

The End of Federal Foreign Affairs Exclusivity?

by Julian Ku

I don’t have much to add to Peter’s pithy and insightful take on the Supreme Court’s oral argument today in Arizona v. United States.  I just wanted to emphasize the difficulty the federal government had in advancing, even rhetorically, its view that the federal government has an “exclusive” role in the management of immigration policy and foreign affairs.  Solicitor General made this argument several times, including here:

GENERAL VERRILLI: Well, what I think they are going to do in Arizona is something quite extraordinary, that has significant real and practical foreign relations effects. And that’s the problem, and it’s the reason why this power needs to be vested exclusively in the Federal government.

What they are going to do is engage, effectively, in mass incarceration, because the obligation under section 2(H), of course, is not merely state, and we don’t like it. They are sorts of problems. So we’re going to help Federal law. We’re not going to do anything to enforce section 2 to the fullest possible extent at the — at the risk of civil fine, but to enforce Federal immigration law, which is what they claim they are doing in section 3 and in section 5. And so — so, you’re going to have a  situation of mass incarceration of people who are unlawfully present. That is going to raise — poses a  very serious risk of raising significant foreign  relations problems.

And these problems are real. It is the problem of reciprocal treatment of the United States citizens in other countries.

JUSTICE KENNEDY: So you’re saying the government has a legitimate interest in not enforcing its laws?

I just don’t think, taken as a whole, that the Court showed any deep concern with the threat to foreign affairs or to the federal government’s control of foreign affairs.  The Court was focused like a laser beam on the language of the statute and how it would work in practice in tandem with existing federal law.  Broad claims that Arizona was interfering with foreign affairs, and that foreign affairs are exclusively vested in the federal government, were pretty much ignored and brushed aside.

In our book Taming Globalization, John Yoo and I argue against a broad foreign affairs preemption power, especially a dormant preemptive power.  While we accept that the federal government can preempt most state activities, we would require some explicit statutory intent to do so, or an unmistakeable executive policy or agreement.  My bet is that, even if Arizona “loses”, an exclusive federal foreign affairs power will not emerge in this case.

Taylor Will Not Be the First Head of State Judged by an International Tribunal

by Kevin Jon Heller

The media is widely reporting (see, for example, the Washington Post here) that later today Charles Taylor will become the first sitting or former Head of State to have his fate decided by an international tribunal.  They should really do their research: the Nuremberg Tribunal convicted Karl Doenitz, the Commander in Chief of the German Navy, who served as the President of Germany for 23 days following Hitler’s suicide.  Doenitz, Hitler’s chosen successor, was no mere figurehead; among other things, he ordered Alfred Jodl to unconditionally surrender the German armed forces to the Allies on 7 May 1945.

Get it right, media people!  I’m keeping a list…

SB 1070 Argument Recap: “Papers, Please” Likely to Stick, Other Provisions Not So Clear

by Peter Spiro

Transcript of today’s argument before the Supreme Court here.  Not a lot of fireworks.  The key takeaway: the Court (including some on the left) didn’t seem to have much problem with section 2 of the Arizona law, which requires law enforcement to undertake immigrant status determinations in the course of stops or arrests where there is reasonable suspicion that a person is in the United States illegally.  (Here’s the SB 1070 text; here’s an excellent summary of the law and issues from Ben Winograd at the Immigration Policy Center.)

Important to several of the justices on this score: the fact that there would be no necessary consequence to the status determination as made by state law enforcement.  Where Arizona deemed someone to be in the country illegally, it could inform federal immigration authorities, but nothing would require the feds to follow up.

(“Papers, please” is not entirely accurate, insofar as an officer first requires some other reason to stop, detain, or arrest an individual – suspected undocumented status by itself isn’t enough to initiate the process.  But no better label has stuck.)

It’s not nearly as clear where the Court will come out on section 3, which in a roundabout way makes undocumented status a crime under state law (it’s not under federal).  If the Arizona wins on section 2 but loses on section 3, its victory will be largely symbolic.

Not a lot of talk about the foreign relations aspects of the case.  Scalia duly made the “heckler’s veto” argument with respect to dormant foreign affairs preemption: “So we have to — we have to enforce our laws in a manner that will please Mexico. Is that what you’re saying?”  Don Verrelli fumbled the answer, weakly adverting to the Founders (who had no views of any kind on federal control of immigraton, the power over which is not found in the Constitution itself).

Justice Scalia supplied the only erstaz entertainment, with a riff analogizing undocumented aliens to bank robbers.  The feds are going after only the professional bank robbers (read: criminal aliens), that doesn’t mean the state can’t go after the amateurs.  This is about as helpful as “broccoli“.  States have authority to go after bank robbers, professional and amateur; the whole question here is whether states have the authority to go after undocumented aliens.

Finally, Scalia also apparently believes in the enforcement of borders between states:

What does sovereignty mean if it does not include the ability to defend your borders?. . . Arizona is not trying to kick out anybody that the Federal government has not already said do not belong here. And the Constitution provides — even — even with respect to the Commerce Clause — “No State shall without the consent of Congress lay any imposts or duties on imports or exports except,” it says, “what may be absolutely necessary for executing its inspection laws.” The Constitution recognizes that there is such a thing as State borders and the States can police their borders . . .

Look forward to something pretty extreme from him and Thomas; I suspect the rest will split the difference.

Is the Gaza Strip Still Occupied by Israel?

by Pnina Sharvit-Baruch

[Col. (Ret.) Pnina Sharvit Baruch is a Former Head of the International Law Department of the IDF Military Advocate General’s Office]

This is the fifth post of our Symposium on the Functional Approach to the Law of Occupation. Earlier posts can be found in the Related Links at the end of this post.

I am very thankful for the opportunity to participate in this symposium in one of the leading blogs on international law.

The question I will refer to is whether Israel is under the duty to provide for the wellbeing of the residents of the Gaza Strip? This is the practical question. The legal answer stems from the determination of whether the Gaza Strip is still occupied by Israel.

A quick analysis of the law leads to a sound conclusion that the Gaza Strip does not fall into the definition of being occupied by Israel, as will be shown below.

There are no existing rules in international law imposing post-occupation obligations, nor human rights’ obligations regarding areas and persons outside a state’s control. These are at best de lege ferenda.

This does not necessarily mean that Israel has no legal obligations towards the population of the Gaza Strip, but that to the extent that there are any such legal obligations, they are limited in nature and do not include the duty to actively ensure normal life for the civilian population, as would be required by the law of belligerent occupation (article 43 of the 1907 Hague Regulations Respecting the Laws and Customs of War on Land of 1907).

The basic formulation for when a territory is considered to be subject to belligerent occupation is found in Article 42 of the Hague Regulations, which states that:

Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.

It is commonly agreed that, at its core, territory will be considered occupied when it is under the “effective control” of the foreign army. By necessary implication, therefore, occupation does not extend to territory where such authority is no longer established and cannot any longer be exercised. Continue Reading…

The Functional Approach to the Occupation of the Gaza Strip and the Right to Self-Determination

by Matthew Saul

[Dr. Matthew Saul is a Research Fellow at the Norwegian Centre for Human Rights and Lecturer at Durham University, UK (on leave)]

This is the fourth post of our Symposium on the Functional Approach to the Law of Occupation. Earlier posts can be found in the Related Links at the end of this post.

Many thanks to Opinio Juris for inviting me to participate in this symposium.

In this post I will seek to contribute to the debate, by considering the argument for a functional approach to the law of occupation from the perspective of the right to self-determination. First, I will comment on why I think it is necessary to address the right to self-determination in the process of interpreting the law of occupation.

Geneva Law was created to supplement rather than replace the Hague Law of occupation. As such, there is a basis (following the Vienna Convention on the Law of Treaties) for interpretation of any aspect of the law of occupation to include consideration of both the preservation of sovereign rights (a core rationale of Hague Law) and the protection of civilians (a core rationale of Geneva Law). However, given that both Hague Law and Geneva Law were created before the emergence of the legal right to self-determination, it might be seen as strange to suggest that the right to self-determination should also be considered.  In this respect, a central part of my reasoning is that there is a significant overlap between the right of a people to freely determine their political status and freely pursue their economic, social and cultural development and the right of a sovereign to freely choose and develop its political, social, economic and cultural systems. This overlap entails that application of the law of occupation (particularly provisions such as Article 43 Hague Law, which requires the occupant to take measures ‘to restore, and ensure, as far as possible, public order and safety’ but also stresses that it should do so ‘while respecting, unless absolutely prevented, the laws in force in the country’) is not only a means of helping to preserve meaning in sovereign rights in adverse circumstances, but also a means of preserving meaning in the right to self-determination. On this basis, I think it is reasonable for interpretation of the provisions related to whether and how the law of occupation continues to apply in the Gaza Strip – Article 42 Hague law (‘Territory is considered occupied when it is actually placed under the authority of the hostile army’) and Article 6 Geneva law (‘[the Occupying Power will be bound] to the extent that such Power exercises the functions of government in such territory’) – to include consideration of the implications for the right of the Palestinian people to self-determination. Continue Reading…

Weekday News Wrap: Wednesday, April 25, 2012

by Jessica Dorsey

China May Be The Future, But It Still Has Some Infrastructure Issues

by Julian Ku

I couldn’t resist posting this rather scary video of a girl swallowed by a sidewalk sinkhole in Xi’an China. Sure, this doesn’t mean China won’t be a key and influential power in world affairs.  But it does remind us that China is not exactly the inevitable global juggernaut it is sometimes portrayed as.  This is actually not the first time this has happened recently in China. Luckily, this story has a happy ending… a taxi driver jumped in to save the day. (h/t shanghaiist)

More on Executive Power

by Deborah Pearlstein

My earlier post on executive power generated some good, thoughtful comments. I wanted to highlight Charlie Savage’s in particular (he’s the author of the New York Times article I’d mentioned, please see his comment in the section below), and take a moment to offer a few thoughts in response.

Charlie’s concerns are basically twofold. The first is that I’m unfairly characterizing his article by suggesting that it seems to analogize Obama’s assertions of executive power to the claims of executive power made by the Bush Administration in the context of national security. He of course is right that his article at one point does note the important distinction between Bush’s claims and Obama’s. Despite this, Marty Lederman and the Times’ own Andrew Rosenthal and I all independently seemed to read the piece in much the same way – i.e. as suggesting that there was something comparable in Bush’s embrace of executive power and Obama’s, and that this might have something to do with national security. Why did I read it that way? I think it had to do with context and emphasis.

Here’s what I mean. Having read The Times (and other publications) on the topic of executive power in recent years, it seems to me difficult to compare the administrations’ respective approaches to executive power writ large while ignoring the context in which the comparison exists – i.e. a mammoth decade-long debate about executive power in national security. Neither the article’s headline nor the opening 8-9 paragraphs of the article do anything to suggest that by “executive power” the article intends to exclude or somehow except questions of national security from the general thesis that Obama had changed his views on executive power. On the contrary, the passage from the article that I quoted in my original post seemed to me to reinforce the idea. “As a senator and presidential candidate, [Obama] had criticized George W. Bush for flouting the role of Congress…. But increasingly in recent months, the administration has been seeking ways to act without Congress.” My recollection of the campaign – admittedly far from perfect so I’ll welcome corrections on this account – is that Obama’s central criticism of Bush’s use of executive power was to do with Bush’s use of executive power in matters of national security. In particular, on the torture and surveillance issues Charlie’s article mentions. If I’m right about this (the nature of Obama’s campaign criticisms of Bush), and Charlie’s right that he didn’t mean to touch on executive power in matters of national security, then I’m not sure what relevance there is to mentioning Obama’s campaign criticisms of Bush in the article.

Which brings me to Charlie’s second concern – that I might have inadvertently linked to the wrong Lawfare post in referencing Jack Goldsmith’s take on the article. Actually, I linked to the Goldsmith post I intended – namely, Jack’s first post about the Savage article, which read in its entirety:

Charlie Savage has a story today about how the Obama administration, stymied in Congress and seeking ways to accomplish policy goals, has “increasingly in recent months . . . been seeking ways to act without Congress.” This was a predictable turn of events and one that, as Savage’s story notes, follows a standard historical pattern.

Jack writes of course for the Lawfare blog – a blog entirely devoted to questions of law and national security. Suggesting he seemed to think the article had some bearing on executive power in that realm as well. Indeed, he saw the article as supporting one of the central theses of his recent book (and regular public talks) – namely, that it is a standard historical pattern for presidents to seek to expand their power in matters of national security. It was this claim I was responding to – arguing that it was descriptively problematic – in the latter paragraphs of my earlier post.

So what would I have done differently? (I hesitate here, this is after all why I’m a law professor and not a journalist.) But I might have led the article with a sentence that made clear the very limited category of “executive power” the article actually engages. And as a reader, I might have been interested in a better historical understanding (by which I mean a quote from a campaign speech or platform or the like) of how Obama’s use of, say, executive actions involving administrative agencies, actually reflects a change in his views of power, rather than just a difference in tactical approaches pretty much every president has embraced once they’ve lost a majority of the Congress. I’m not sure the piece would have been quite as newsworthy so framed. But I guess I think it would have been clearer.

Disingenuous ‘Disengagement’: Israel’s Occupation of the Gaza Strip and the Protective Function of the Law of Belligerent Occupation

by Valentina Azarova

[Valentina Azarov is a Lecturer in International Law and Human Rights, Al-Quds Bard College, Al-Quds University, Palestine (on leave)]

This is the third post of our Symposium on the Functional Approach to the Law of OccupationEarlier posts can be found in the Related Links at the end of this post.

By far one of the most challenging questions for the international law of belligerent occupation pertains to the termination of occupation. The law states that “occupation comes to an end when an occupant withdraws from a territory, or is driven out of it” (Oppenheim, International Law (1952) 436). According to Sir Adam Roberts, an occupation ends either through a complete withdrawal of troops, through the conclusion of a treaty permitting the continued presence of some troops, or through a treaty that transfers sovereignty back to the displaced sovereign, without withdrawal of troops. In his seminal work on the law of occupation, Arai-Takahashi’s discussion of termination makes no mention of the possibility of a gradated or phased application of the law. Sir Roberts holds that,

the question of when an occupation can be said to have begun, or ended, is sometimes easy to answer but is by no means always so. Even when it can be answered with confidence, there may still be many gradations between direct foreign military control on the one hand and complete independence and freedom from foreign military forces on the other. (260)

Similarly, in an article on the termination of occupation, Benvenisti notes that “unilateral withdrawals can be events as painful as other situations of political transition in which the protection of individual rights is particularly important”, underscoring that “the determination whether such control exists or not at the relevant times and in the relevant place will be based on a case by case analysis.”

Whilst the law of occupation does not explicitly provide for a “transitional” legal framework that regulates the process of termination, the simplicity of the above mentioned criteria for termination falls short of answering more demanding practical questions, such as: What duties does an occupying power have during the transition to restoration of lawful sovereignty? How can occupation law be applied to situations in which an occupying power has partially retreated but continues to exercise governmental functions? Continue Reading…

In Reluctant Defense of the Law of Occupation

by Sari Bashi

[Sari Bashi is Executive Director at Gisha – Legal Center for Freedom of Movement.]

This is the second post of our Symposium on the Functional Approach to the Law of Occupation. Earlier posts can be found in the Related Links at the end of this post.

I am grateful to Opinio Juris for hosting this symposium in its best tradition of fostering robust debate on cutting-edge issues in international law and to Aeyal Gross for providing the theoretical framework for understanding Israel’s obligations in Gaza.

As the director of Gisha, an Israeli human rights organization working to protect the rights of Palestinian residents of Gaza, I co-wrote Scale of Control about the legal status of the Gaza Strip, because I believe that the law of occupation, flawed as it is, provides a useful framework for understanding and regulating Israeli control over Gaza. Whether Gaza is considered occupied is not only an intellectually compelling question but also a question whose answer has significant consequences for the ability of 1.6 million people to overcome movement restrictions in order to lead normal lives. In this post, I want to explain why I believe Israel bears the responsibility of an occupying power in the spheres over which it exercises control in Gaza and also – why that matters.

Israel’s regulation of access into and out of Gaza is influenced by the way in which important actors – including the Israeli Supreme Court, the United Nations, the International Committee of the Red Cross and key Western powers – view Israel’s obligations to Palestinians living in Gaza. Public opinion within Israel and concern over diplomatic pressure help determine the standard that Israel observes in regulating movement – whether mathematical formulas are used to determine how much food will be permitted into the Gaza Strip, as was the case between June 2007 and June 2010, or whether, as is the case today, incoming goods are permitted but outgoing goods banned, and movement of people is restricted in seemingly arbitrary ways (the current rules allow football players to travel between Gaza and the West Bank but ban university students).

The Israeli government claims that its detailed criteria outlining who may travel between Gaza and the West Bank (male merchants may travel, but female hairdressers are banned), its determination of which kinds of export goods may leave Gaza and where they may be marketed, and its insistence that parents in Gaza register their newborn children in the Israeli controlled population registry as a condition of allowing those children to cross borders – are actions taken under the law of armed conflict. Under the law of armed conflict, Israel claims, it owes minimal obligations, primarily to allow the entry into Gaza of items essential to the survival of the civilian population and to allow exit from Gaza under exceptional humanitarian circumstances, with an emphasis on urgent medical cases.

So, according to the Israeli government, it may control many of the spheres of life that determine whether civilians will lead normal lives, including the movement of persons and goods critical to the economy, educational system, family unity, and civil society, but may use such control to disrupt normal life in Gaza, as long as it allows in basic foodstuffs and other humanitarian necessities.

That doesn’t seem right to me as an activist who cares deeply about human rights, and as a lawyer specializing in international humanitarian law, I think it reflects a misunderstanding of the meaning and purpose of the law of occupation. Continue Reading…

Executive Power Debate, Redux

by Deborah Pearlstein

Charlie Savage’s odd article in yesterday’s New York Times prompted another exchange in the ongoing conversation about whether the Obama Administration’s assertions of executive power can be meaningfully distinguished from those of George W. Bush. Savage’s article is headlined in such a way, and otherwise seems to suggest that Obama’s recent reliance on executive orders to accomplish various policy changes (in, for example environmental regulation) is analogous to the Bush Administration’s claims that it could exercise executive power to change various policies and laws in the counterterrorism realm. (Savage writes, for example: “As a senator and presidential candidate, [Obama] had criticized George W. Bush for flouting the role of Congress…. But increasingly in recent months, the administration has been seeking ways to act without Congress.”)

Marty Lederman does his usual lovely job at Balkinization of explaining why the equation of these practices as similar in their views of executive power is wrong. Critically, for example, the most troubling assertions of executive power in the Bush Administration – for example, the power to torture despite federal laws prohibiting it – were truly claims of unilateral authority. That is, the claim that the President could order torture even when Congress has said it’s illegal. The Savage article, in contrast, is almost entirely focused on Obama’s use of executive orders to carry into effect powers that Congress has delegated to the President to use. That is, essentially the opposite behavior.

Jack Goldsmith nonetheless views the Savage piece as fodder for his book’s claim that executive power invariably expands over time, and that while Obama maybe held back in his first few years in office, even Obama is now seeing the light, as it were. As I’ve written in some detail elsewhere, there are a set of ways in which the Obama Administration has recognized constraints on its power that the previous administration did not. Some examples. The Obama Administration’s early executive order on interrogation, still in effect, recognizes the binding applicability of Common Article 3; the Administration has argued that international law should inform the interpretation of its detention power (a view to which the D.C. Circuit has, remarkably, not deferred); the Administration won an amendment to the Military Commissions Act (MCA of 2009) entitling detainee-defendants to raise Geneva Convention-related defenses in the course of their trials (a set of claims the MCA of 2006 had barred); the State Department has announced an intent to seek to ratify Geneva Additional Protocol I. Perhaps most significant, though, the Congress has sought to impose remarkable constraints on the President – I’m not aware of any historical precedent – including the prohibition on transferring Gitmo detainees to the United States for prosecution. And the President has, in fact, complied with them.

None of this is to suggest I’m a fan of everything the administration has done in this realm, or even that it’s clear exactly what the President thinks is the scope of his power under Article II. (Here, for example, I raised questions about the scope of Article II power the Obama Administration is asserting in its targeted killing programs.) Rather, it’s to suggest that Jack’s descriptive claim that executive power simply and inevitably expands over time I think ignores the various ways in which that has not been true. If I were trying to describe what’s happened in the past four years, I’d say, more modestly, that sometimes, some executive powers expand, and sometimes, some others do not. Where does this get us? Well, at least to the point of asking a better question. Like why does power sometimes expand, and why, more interestingly, does it sometimes not?

Weekday News Wrap: Tuesday, April 24, 2012

by Jessica Dorsey

Rethinking Occupation: The Functional Approach

by Aeyal Gross

[Aeyal Gross is a Professor at Tel-Aviv University, Faculty of Law.]

This is the first post of our Symposium on the Functional Approach to the Law of Occupation.

Questions regarding the existence of an occupation, and especially its end, came to the fore in 2004-2005 with Israeli pronouncements about the end of its occupation of Gaza, and UN, US, and UK statements about the end of the occupation in Iraq. In the years that followed, I found myself at various events where the question of whether Iraq or Gaza were still “occupied territories” was discussed, at times seemingly ad absurdum. Seated at a conference on “Occupations and Withdrawals” at the University of Glasgow in 2006 and listening to the discussions around me as to whether those territories were still occupied and whether “boots on the ground” are required for an occupation to exist, I felt I was attending a real life enactment of Felix Cohen’s “Heaven of Legal Concepts,” where legal concepts are “thingified” in a way that Cohen characterizes as “transcendental nonsense.”  [See: Transcendental Nonsense and the Functional Approach (1935)]. Some of the discourse on the existence (or absence) of “occupation” was, I thought, an example of legal analysis ignoring practical questions of value or positive fact. Instead, discussions took refuge in “legal problems” that, according to Cohen, can always be answered by manipulating legal concepts in certain approved ways that bar the way to “intelligent investigation of social facts and social policy.” While Israel had removed its settlers and permanent military presence from Gaza, and while the Security Council had proclaimed that the occupation of Iraq was over, the occupying powers continued to exercise extensive control over the daily life of the people residing in these territories. Some of my international law colleagues argued that these territories are no longer occupied, while others disagreed. Listening to this debate,  I began to think that “occupation” should be included in the category Cohen calls “magic solving words” – words that  are actually incapable of solving anything if we remain within the binary on/off framework of the traditional international law of occupation. Article 42 of the Hague Regulations determines that “[t]erritory is considered occupied when it is actually placed under the authority of the hostile army” and that “[t]he occupation extends only to the territory where such authority has been established and can be exercised.” The discussions of Gaza and Iraq illustrated to me that by relinquishing some of the control or by transforming it, occupants may attempt to absolve themselves of their responsibility by claiming that the territory is no longer occupied within the framework set out in Article 42.

Reflecting upon Cohen’s insights, I recalled that, in his legal realist suggestion, norms should not follow from abstract concepts but rather the opposite. For instance, rather than saying that a labor union can be sued because it is “a person” or “a quasi-corporation,” it should be said that a labor union is “a person” or “quasi-corporation” because it can be sued. Whereas the first approach is one coined in “transcendental” terms by asserting something that sounds like a proposition but cannot be confirmed or refuted by positive evidence or ethical argument, the latter avoids this circularity. To follow Cohen, then, we can address the “thingification” of occupation. As is well known, it is by virtue of the determination that the situation is or is not one of occupation that parties are assigned rights and obligations under international law. But an alternative to reliance on “heavenly legal concepts” and “transcendental nonsense” is  a “functional approach” that, in Cohen’s words, “represents an assault upon all dogmas and devices that cannot be translated into terms of actual experience” and from which “all sorts of empirical decisions are supposed to flow.”  “If the functionalists are correct,” argued Cohen, “the meaning of a definition is found in its consequences.” To apply Cohen’s approach to the law of occupation, then, when we ask whether there is an occupation we should consider whether the liabilities and duties of an occupier should be attached to certain acts. This is an ethical question that cannot be answered in purely legal terms since that would make it circular. Rather, we should consider the ethical character of the legal question and the conflicting human values in every controversy. This approach will prevent occupiers from relinquishing responsibility when control is transformed, and will ensure that as long as an occupying party continues to exercise some degree of control, it will continue to be held accountable. In the functional approach, legal decisions are not “products of logical parthenogenesis born of pre-existing legal principles but are social events with social causes and consequences. Law and legal institutions should thus be appraised in terms of some standards of human values.”
Continue Reading…

Why “One Voice” Shouldn’t Trump Arizona’s (Or, Why Madeleine Albright is Wrong About SB 1070)

by Peter Spiro

I’ve got an op-ed in the NY Times today on the SB 1070 case, the title of which might have been “Let Arizona Law Die a Natural Death.”  In 750 words there wasn’t room to engage the key doctrinal foreign relations elements of the case.  This is central to the Obama Administration’s case against the law: Immigration inherently implicates foreign relations; foreign relations is constitutionally insulated from interference; SB 1070 unconstitutionally interferes with foreign relations.  The mantra: the nation must “speak with one voice” in the context of foreign relations.

The foreign relations argument is expertly made in an amicus brief submitted by a group of former top foreign policy officials led by Madeleine Albright and William Cohen.  (On the Albright brief are Supreme Court veterans Seth Waxman and Paul Wolfson. This is a lopsided case in terms of the quality of briefs, those opposed to SB 1070 completely outclassing those in support.)  In proceedings before the district court, then-Deputy Secretary of State James Steinberg also filed this declaration laying out the case that SB 1070 damages foreign policy.

No doubt immigration inherently involves relations with other countries.  There’s also no question that SB 1070 has several countries — notably Mexico — very unhappy.  But that doesn’t inexorably lead to the conclusion that SB 1070 interferes with national foreign relations.

The Albright brief and Steinberg declaration assert three types of foreign policy damage: 1) other countries will undertake reciprocal retaliation against US nationals in their jurisdictions, 2) SB1070 undermines US efforts to advance human rights in multilateral fora, and 3) the Arizona measure “undermines the willingness of foreign states to engage with the United States to advance US foreign policy goals.”

The first makes sense in theory, but is highly unlikely in this context.  Neither Albright nor Steinberg can supply examples on the ground.  There aren’t a lot of US citizens who are illegal immigrants in other countries, so direct tit-for-tat (think Mexico adopting its own version of SB1070) doesn’t make a lot of sense.  Nor are other states going to risk US business and tourist dollars as part of this cause by harassing US visitors in some non-specific way.

The second harm is more plausible.  International human rights groups have been all over the state immigration laws, and there have been critical pronouncements out of the UN and OAS.  But the US takes a pretty marginal hit on this, one that it seems willing to take in a number of other contexts.

The last would be most persuasive, if only it were true. The best Jim Steinberg can do on this: “The Mexican Senate stated it would postpone review of a U.S.-Mexico agreement on emergency management cooperation to address natural disasters and accidents signed on October 23, 2008 because of the new Arizona law.”  I don’t think it’s demeaning of emergency management to say that’s not exactly at the center of our bilateral relations with Mexico.  Steinberg also noted the cancellation of a meeting of border state governors in 2010, but that isn’t really about national foreign relations anyway.

The bottom line: SB 1070 hasn’t really hurt US foreign policy, at least not enough to justify departing from our usual rules of federalism.  (Remember: If it were really a problem, Congress could always make SB 1070 go away through express legislative preemption.)  This is ultimately because other countries know that Arizona is going it alone on this.  At a joint press conference in May 2010, Mexican President Felipe Calderon registered his opposition to SB1070 (as Steinberg and Albright note), but then he and Obama presented a united front in that opposition, almost as if Arizona were a third sovereign against which the two heads of state were aligned (and more or less equally powerless to influence).  In these circumstances, it makes no sense for Mexico to take out any offense against the USG or the US as a whole.  That takes the rug out from under foreign affairs preemption.

It’s a far cry from Hines v. Davidowitz, the 1941 decision which figured centrally in the 9th Circuit’s decision below.  Hines struck down a Pennsylvania alien registration regime tracking federal law.  Arizona’s law is also (at least ostensibly) consistent with federal law, as proponents are quick to argue.  So Hines supplies a good response: consistency with federal law doesn’t insulate a state immigration measure from constitutional attack.

I don’t think Hines is going to stick here.  The obvious way to distinguish it: that was 1941, this is 2012.  In 1941, you couldn’t have the states messing with anything, most especially with would-be enemy alien German nationals.  It was way-too hair-trigger a context in which to tolerate the amateur foreign policy backgrounds of state officials.

Today, we may still have foreign-policy amateurs among state officials (AZ governor Jan Brewer likely at the head of the line).  But we’re hardly on the road to WWIII.  I think there a good chance that the Court is going to strike down SB1070’s registration provision, under which aliens who fail to comply with federal registration requirements are subject to penalties under state law, but I doubt it will rely on Hines, which is getting its last hurrah in the run-up (the Court is much more likely to take up NYU’s Nancy Morawetz’s inventive tack on that in her brief for the Leadership Conference on Civil and Human Rights here).

Finally, it’s interesting that Mexico (its offense notwithstanding) is not among those filing amicus briefs in favor of the Administration’s case.  The GOM knows how to put fancy US lawyers to work; it submitted briefs in proceedings before both the district court and the 9th Circuit.  I suspect it stayed out because of the atmospherics.  SB1070 supporters have tried to tar foreign affairs preemption as a “heckler’s veto“, a foreign heckler no less.  To the extent it is, better to have the heckler out of the room.  I don’t think Mexico’s non-participation will make any difference, but it was almost surely a conscious choice.

Weekday News Wrap: Monday, April 23, 2012

by Jessica Dorsey

Symposium on the Functional Approach to the Law of Occupation

by Kevin Jon Heller

I am delighted to announce that over the next few days Opinio Juris will be hosting a symposium on what is increasingly called, following Tel Aviv University’s Aeyal Gross, the “functional approach” to the law of occupation.  Here is the description that was sent to the contributors:

Occupation law has undergone significant evolution in modern times, and cases such as Iraq and Gaza have raised interesting questions about when an occupation ends and what the duties of an occupying power may be during the transition to restoration of lawful sovereignty.  How can occupation law be applied to situations in which an occupying power has partially retreated but continues to exercise governmental functions?  Is the application of occupation law a binary question, or can some provisions of the law of occupation apply, while others may not?  Which arrangement is most responsive to fostering accountability toward the civilian population?  International attention sparked by the Gaza flotilla incident in 2010 has raised significant questions about the legal status of Gaza, with the governments of Israel and Turkey arguing opposing sides of the question of whether Gaza is occupied.

We will post the contributions on Monday, Tuesday, and Wednesday.  We will then post responses by the contributors on Thursday.  The line-up is as follows:

Readers will notice that the contributors come from all over the political spectrum.  Indeed, what makes this symposium so interesting is that it is not possible to infer a particular scholar’s position on the functional approach from his or her political affiliations — being “pro-Israel” or “pro-Palestinian” does not necessarily correlate with either acceptance or rejection of the functional approach.

We look forward to the discussion and encourage readers to weigh in — respectfully — in the comments.

Taming Globalization Book Tour Hits DC (Where John Yoo and I Take the Moderate, Centrist Position)!

by Julian Ku

Last week, the good folks at the American Enterprise Institute and the Federalist Society hosted a book roundtable on Taming Globalization.  In addition to John Yoo and myself, we were joined in a very lively discussion by Prof. Martin Flaherty of Fordham and Prof. Jeremy Rabkin of George Mason (with Jennifer Rubin of the Washington Post as moderator).  While John and I are certainly used to receiving some criticism from the left, we are both a little surprised when we are attacked from the right. So Prof. Rabkin’s criticism (around the 36:10 minute mark) of our view that the U.S. will continue to engage with most aspects of the international legal system was refreshing and challenging.  And Prof. Flaherty’s take on the book’s lack of originalism was also unusual.  For a further summary taste of the discussion, check out the event webpage. Special thanks to Michael Greve of AEI and Lee Otis of the Federalist Society for organizing this event.


U.S. Supreme Court Holds that Corporations Can Be Immune from Claims of Torture Under Domestic U.S. Law

by Julian Ku

One of the most popular arguments made against the Second Circuit’s interpretation of the Alien Tort Statute in Kiobel v. Royal Dutch Shell is essentially a policy argument:

How could it be possible for Congress to have intended to allow corporations to immune from claims of serious international law violations while at the same time allowing individuals to be liable?  

This policy argument, I pointed out here, makes the respondents’ legal position in Kiobel singularly unattractive.   The Supreme Court’s unanimous decision, however, last week in Mohamed v. Palestinian Authority makes this argument a little less unattractive.  In Mohamed, the Court held, 9-0, that the the Torture Victim Protection Act’s use of the term “individual” does not permit claims against organizational entities like the Palestinian Authority.  Although the Court does not explicitly say so, this would also shield corporations from TVPA lawsuits.

As Michael Ramsey notes at the always intelligent Originalism Blog, this decision is another triumph of statutory textualism over all possible methods of statutory interpretation. The Court’s unanimous embrace of statutory textualism, he notes, came despite some quite persuasive purposive or policy based interpretations made by the petitioners.  Indeed, the Court acknowledged that it is possible that the  “Act would be rendered toothless by a construction of “individual” that limits liability to natural persons….But [such limitations] are ones that Congress imposed and that we must respect.”

The Kiobel Court may not ever reach the corporate liability issue, but if they do, Mohamed should offer respondents some cover for their positions.  To be sure, the ATS is a different situation because it offers no textual guidance at all on the corporate liability question. Courts are left to ponder whether implying corporate liability would fit within their ATS federal common law making powers. The Supreme Court has instructed them, in Sosa, to limit their use of international law to only those most universal and uncontroversial norms.

Whether corporate liability is one of those international norms has been the main field of dispute in the Kiobel briefing.  But even if it is not an international norm, the court still faces the question as to whether Congress would have wanted to imply a cause of action against corporate entities. The answer is not all that clear. They might have wanted to include corporate entities within the ambit of the ATS, but, as was the case in the TVPA, they very well might not have gone the other way.

Run-up to SB 1070 Argument: Why the Court Should Have Ducked

by Peter Spiro

The Supreme Court hears arguments in the Arizona SB 1070 case on Wednesday.  I’ll have some things to say on the merits over the next couple of days, but first a lament: why did the Court feel like it had to take the case in the first place?

It could have waited. There are a bunch of cases making their way through the lower-court pipeline. Sitting out this round would have allowed for more “percolation”, in Court-speak — the chance to get either a greater diversity of views from the lower courts or the development of a consensus among them. (It also could have waited for a case in which Elena Kagan is not recused — there is a very real chance of a 4-4 deadlock on this one, in which case the Court will have to take a do-over.)

In the interim, the facts might have changed on the ground.  The anti-immigrant campaign at the state and local level looks to be running out of steam.  SB1070 was followed by a small handful of copycat measures, notably in Georgia, South Carolina, and Alabama. But a similar law recently went down in Mississippi, and other states have also managed to deflect anti-immigrant sentiment short of  legislation. That’s not for any love of immigrants. More out of a recognition that these laws implicate substantial economic costs and risk damaging state brands — not a good strategy for moving ahead in the global economy.

The Court’s intervention runs the risk of taking this natural evolution off its tracks.  If the Court upholds SB 1070 (or, more likely, upholds some important components thereof), it will be giving a big green light to Kris Kobach et al and depriving opponents of an important argument (namely, that the laws are unconstitutional). A win for Arizona at the Court would probably spur at least a short term uptick in state and local activity.

If, on the other hand, the Court quashes SB 1070, it will energize restrictionists in Washington, running the risk of unfavorable federal immigration legislation. (More on that in a subsequent post.)

So why did the Court take the case? A veteran Supreme Court litigator who predicted this, unlike me (memo to self: do not include easily falsifiable predictions in blog post headlines!) explained it to me as a matter of economies of scale: once the Court reads into an issue like this — the kind it otherwise leaves alone for decades — it likes to tackle other aspects on a compressed timeline. Sort of a clumping theory of Supreme Court docket management.

This fits the template.  After a 30-year silence, the Court read into immigration federalism last term with Whiting v. Chamber of Commerce, which presented a much narrower question of statutory preemption.  After that practice round, the Court must feel up to speed, equipped to take on the much bigger questions presented in the Arizona case.  We’ll see.

OPCD Report on Gaddafi’s Situation in Libya

by Kevin Jon Heller

In my previous post, I discussed the Registry’s report of its visit with Saif Gaddafi in Libya, which was posted on the ICC website and then removed without explanation a few hours later.  It has come to my attention that the Office of Public Counsel for the Defence (OPCD) also prepared a report of that visit — and that the OPCD’s report also appeared and then disappeared from the ICC website.  I have uploaded a copy of the report for interested readers.  It’s much more heavily redacted than the Registry’s, yet offers a number of useful tidbits of information about Saif’s attitude toward the ICC:

33. [Redacted]. The details of ICC proceedings therefore appeared irrelevant to him, as his primary concern is his security in Libya. He would, however, prefer to be under the custody of the ICC in The Hague, rather than being detained in the current conditions, or transferred to Tripoli.

34. It is not correct that he informed the Libyan authorities that he did not wish to meet with any officials from the ICC.

35. Mr. Gaddafi met with the Attorney General and asked for a lawyer in connection with the Libyan proceedings. He was informed that it would be impossible for a lawyer to visit him in Zintan. Mr. Gaddafi does not think that he has signed anything waiving the right to have a lawyer, but in any case, he had been informed in definite terms at the beginning by the Attorney General that it would be impossible to implement in practice.

36. The persons guarding him have mobile phones but there did not appear to be any fixed telephone lines, from which he could call anyone to choose a lawyer. Although the visit did not take place in the particular room in which he is being detained, it is clear that he would not be able to keep privileged documents in a secure location.

37. When asked whether he would want someone, such as his family, to arrange for a Libyan lawyer for the domestic proceedings, he responded that he would.

38. Mr. Gaddafi has been interviewed by the Libyan authorities in connection with allegations concerning the fact that he allegedly did not have a licence for two camels, and issues concerning the cleaning of his fish farms.

39. Dr. Gehani informed Mr. Gaddafi during his meeting with him that Dr. Gehani is the ‘architect’ of the allegations against him. Dr. Gehani also notified him that their investigation into murder, rape et cetera had been terminated because they had no evidence against him.

40. In terms of his legal representation before the ICC, Mr. Gaddafi does want legal representation, but he was not in a position to select counsel himself He does not know any lawyers, his family did not have any retained lawyers to his knowledge, and he does not have the ability to call lawyers to interview them or ascertain their availability.

41. Mr. Gaddafi requested the OPCD to either select counsel or help him in this matter. [Redacted]. Mr. Gaddafi is also willing for the OPCD to continue to represent him before the ICC, until a counsel is appointed.

Saif’s statements about the status of the investigation into his actions obviously need to be taken with a grain of salt — as do Gehani’s, if Saif is reporting them accurately — but they are still cause for concern.  No matter what your view of complementarity, it would obviously be unacceptable for Libya to try him only for minor crimes.

I find Saif’s statements about the ICC particularly interesting, as well.  It’s not surprising that he would prefer to be turned over to the Court for prosecution — he’d get better detention conditions, much better legal representation, and a more fair trial.  And, of course, he would not be eligible for the death penalty.  Saif’s statements also contradict Moreno-Ocampo’s criticism of Xavier-Jean Keita, the head of the OPCD, which I discussed in an earlier post.  It seems quite clear that Saif does, in fact, want the OPCD to represent his interests at the ICC while the Court and the Libyan government debate his fate.

Now if someone could just explain to me why these two reports on Saif’s situation, both of which are marked public, disappeared from the ICC website…

Upcoming Events: April 22, 2012

by An Hertogen

This is our third installment of this new feature, last week’s announcements can be found hereIf you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Juris please contact us.

Calls for Papers

  • The Helsinki Summer Seminar on International Law is planned for August 21-30, 2012 in Helsinki, Finland. The theme is International Law and Capitalism: Exploring the Legal Architecture of the Global Political Economy and applications close on May 11, 2012.
  • HEC Paris is organizing its 2nd Workshop on Regulation entitled Regulating Lifestyle Risks in Europe: The Case of Alcohol, Tobacco and Unhealthy Diets on September 27-28, 2012. Abstracts between 300-500 words are due by May 22, 2012.
  • Transnational Dispute Management is calling for papers for a special issue on Aligning Human Rights and Investment Protection. Deadline is June 1, 2012.
  • Charles R. Majinge at LSE is collecting papers for a Liber Amicorum for Adama Dieng, ICTR Registrar. The deadline is June 30, 2012.
  • Undergraduate and postgraduate students can send in papers of maximum 35 pages for the Ronald St. John MacDonald Award awarded by the Canadian Council on International Law. Deadline is July 15, 2012.

Upcoming Events

Ugly Infighting at the ICC

by Kevin Jon Heller

So reports Radio Netherlands Worldwide.  The dispute, not surprisingly, involves Luis Moreno-Ocampo and Libya:

This week the court’s public defender, Xavier-Jean Keita, accused chief prosecutor Luis Moreno Ocampo of siding with the Libyans and demanded he be removed from the case.

In a court filing boiling with indignation, he accused Ocampo of making misleading statements during a visit to Tripoli this week suggesting a deal has already been done whereby Gaddafi will face trial in Tripoli.

“There appears to be a strong perception that the ICC Prosecutor has aligned himself to the interests of the Libyan authorities,” Keita wrote in a court filing. “It might also be appropriate for the ICC Prosecutor to consider recusing himself from the case.”


Ocampo earlier had suggested to judges that, as Gaddafi had not formally requested a lawyer during a meeting in March with an ICC defence official, Keita be removed from the case.

Judges said no to that one, too, but they have still to make up their minds what to do about a case that is fast spiralling into a major political problem for the ICC.

Libya insists it is taking the court seriously and has hired Phillipe Sands, a leading British Queens Counsel and author of “Lawless World”, which accused the Bush administration of war crimes in Iraq, to make its case to the ICC.

But Libya’s chances of a successful challenge look weak. First, it will have to justify keeping Gaddafi in isolation for months, where he has been denied access to a lawyer as well as family visits.

Second, it has no functioning justice system, with the law on transitional justice still to be gazetted.

And third, Libya is showing signs of disintegration. With separatists in the east and south demanding autonomy, the powerful Zintan militias have refused to hand over Gaddafi to government custody.

Rights groups say Libya is in no position to hold a fair trial. Richard Dicker, head of international justice at Human Rights Watch in New York, told RNW: “Credibility? That’s exactly what they [Libya] won’t have with a kangaroo process in Tripoli and a quick execution. That’s an Iraqi solution.”

I don’t quite know what to make of all this.  To be honest, I think both Keita and Moreno-Ocampo are in the wrong.  Moreno-Ocampo’s criticism of Keita is obviously misplaced: there is nothing inappropriate about Keita protecting Saif’s interests at the ICC — and the Registry’s report on Saif’s situation in Libya, discussed in my previous post, makes clear that Keita is not purporting to represent his interests regarding a national prosecution, which would obviously be inappropriate.

Keita’s criticism of Moreno-Ocampo also seems misplaced — at least in the abstract.  The OTP has the right under Article 61 of the Rome Statute to withdraw the charges against Saif, because they have not yet been confirmed by the Pre-Trial Chamber.  So I don’t see what’s wrong with Moreno-Ocampo trying to work out a deal with the Libyans to prosecute Saif domestically.  The real question is what such a deal would look like — and here I definitely have my concerns.  As I noted a few days ago, if the OTP withdraws the charges against Saif as part of a deal with the Libyan government, it would suffer the reputational costs of what would almost certainly be an unfair national prosecution.  That would not be the case, however, if the OTP acceded to the wishes of the other organs of the ICC and demanded that Libya formally challenge the admissibility of a national prosecution under Articles 18 and 19 of the Rome Statute.  In the unlikely event that such a challenge succeeded, it would not be the ICC’s fault — much less the OTP’s — if Saif received an unfair trial.

That last point is an important one.  The RNW article quoted above, like so many articles (and blog posts) on the Libya situation, incorrectly presumes that the ICC would be entitled to reject an admissibility challenge on the ground that Saif would not receive a fair trial in Libya.  As I have explained before, the drafters of the Rome Statute specifically rejected the idea that the absence of due process renders a state “unwilling” or “unable” to prosecute; a state can be considered unwilling or unable only if its national prosecution is designed to make it more difficult to successfully prosecute the perpetrator.  So there is nothing wrong with the OTP ignoring fair-trial concerns in its discussions with the Libyan government — unless it cuts a deal with Libya that involves dropping the charges against Saif.  In the admissibility context, due process does not matter.  Outside of that context, it most certainly does.  The OTP has no business whatsoever negotiating away Articles 18 and 19 unless it can ensure that Saif receives a fair trial.  And therein lies the danger of Moreno-Ocampo’s negotations with the Libyan government.

Registry Report on Gaddafi’s Situation in Libya

by Kevin Jon Heller

I have uploaded a copy of the report, which was available for a couple of hours on the ICC website but then removed without explanation.  (It’s marked public.)  Representatives of the Registry spent five days in Libya in late February and early March, so things could have changed significantly since that time.  Nevertheless, the report paints an interesting — and depressing — picture of the conditions of Gaddafi’s captivity and his feelings toward the ICC.  Here are some key paragraphs (emphasis mine):

15. The delegation left at 10 am on 3 March 2012 and arrived in a house located in Zintan around noon. The delegation was asked to wait in the house for a while, ft was then asked to walk to a house located opposite where Saif Al- Islam Gaddafi was staying. All shutters were closed. The door was heavy and in metal. Several young guards dressed up with military clothes and armed with Kalashnikovs were present in the house. The members of the Registry and the OPCD waited for approximately 40 minutes as Dr. El Gehani was talking to Mr. Gaddafi. Upon his return, the Coordinator indicated that Mr, Gaddafi wanted to talk to him about the Libyan procedures against him and about the possibility to have a lawyer. He mentioned that Mr. Gaddafi had requested to have an interview with him as a condition to speak to the Court. Dr. El Gehani added that he advised him to appoint a lawyer…

17. Saif Al-Islam Gaddafi appeared smiling and willing to talk to the Court. It was difficult to assess whether he had lost a lot of weight as he was wearing large clothes. He appeared slimmer than on the picture annexed to his arrest warrant. He was missing part of his thumb and index at his right hand. He had no visible bruise on his face….

Weekend Roundup: April 14-20, 2012

by An Hertogen

Continuing on last week’s discussion of the CIA’s General Counsel Speech, Ken Anderson posted about Daniel Klaidman’s guest post on Lawfare discussing the genesis of this speech. Another speech attracting attention was Deborah Pearlstein’s discussion of a dinner talk by General Michael Haydn, CIA Director under George W. Bush, on interrogation and common article 3. If you’re losing track of the various speeches on national security law, you may find Ken’s link to his compilation on Lawfare useful.

Our main event this week was a symposium on Social Activism and International Law, inspired by Kony2012’s launch. Charli Carpenter started the symposium with seven critical questions about social media campaigns and international law. Sarah Kendzior discussed the power of celebrity compared to the power of law in Kony2012. Roger Alford discussed how social media activists differ from earlier norm entrepreneurs, while Beth Karlin discussed how social media were not the only factor in the success of Kony 2012 and described other contributing factors, not in the least more conventional forms of political activity. Mark Kersten argued for “multi-media scholarship” in his discussion of how social media force IL and IR scholars to repackage their message. The ability to reach a broader audience was also raised by Jay Milbrandt who argued that we should embrace “slacktivism” rather than giving it the negative connotation it has. Mark Drumbl was more sceptical about “clicktivism” and contrasted the image of child soldiers in Kony2012 with the reality on the ground. Anne Herzberg asked whether social media can be useful in the monitoring and enforcement of international humanitarian law and Julie McBride questioned whether the video will help or hinder child soldiers. Michael Newton’s concluding post discussed how the legal situation in Uganda is far more complex than the Kony2012 video revealed because Kony could still receive full amnesty even when captured rather than voluntarily surrendering. As a bonus, Ken Anderson added this cartoon about social media activism.

In other posts this week, Duncan Hollis posted a link to this year’s Federalist Society Symposium on National Security held in DC on April 5, and linked to the materials of a recent conference in Toronto on Stewardship in Cyberspace.

Julian Ku posted about the new evidence in the Center for Constitutional Rights’ International Criminal Court complaint against the Catholic Church, and was amazed by recent poll figures suggesting that Britons hold a negative view of the European Convention on Human Rights. He also discussed that the Philippines are unlikely to get China to ITLOS over the South China Sea dispute because China frames its claims as territorial sovereignty rather than as an issue of the boundaries of a state’s EEZ under UNCLOS.

Kevin Heller discussed a BBC news report about a possible deal between Libya and the ICC to try Saif Gaddafi in Libya.

Ken Anderson tried to apply to Coase Theorem to the Sudan-South Sudan conflict.

Peter Spiro built on last week’s post in another post about the end of “-isms” in International Relations theory, recommending a recent article in AJIL. If you’re looking for further weekend reading, Roger Alford recommended Dean Berman’s new book on Global Legal Pluralism. Deborah Pearlstein posted about Michigan Law Review’s latest Annual Survey of books in the law, featuring her book review of Ben Wittes’ latest book Detention and Denial.

Our compilation of upcoming events can be found here. We also pointed out the extended deadline for the 2nd ASIL Research Forum. Links to this week’s Weekday News Wraps can be found here.

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

Tiembla, Che!

by Kenneth Anderson

I don’t actually mean to express an editorial view here – my views on the role of social media, I’ve decided, are too mixed up for me to write a coherent post.  But I did think this was funny.  Thanks to my friend and colleague Juan Mendez and his … FB page!

Kony 2012: The Complex Kaleidoscope of Transitional Justice in Uganda

by Michael Newton

[Michael A. Newton is Professor of the Practice of Law, Vanderbilt University Law School]

The Kony 2012 campaign had the laudable goal of increasing public awareness in order to aid the search for justice and accountability in the wake of LRA atrocities. In fact, the worldwide attention had the paradoxical effect of demonstrating the lamentable reality that the optimal pathway towards authentic justice for LRA victims in that setting is neither simple nor self-obvious.  This is true for a number of reasons which I shall summarize.

Firstly, the complexity of factors in Uganda and the overriding imperative for ending two decades of disastrous conflicts have led to an artificial dichotomy in debates between the poles of peace versus justice, local versus international responses to atrocities, and the population’s desire for forgiveness and reconciliation versus punishment. These artificial polarizations have clouded debates about the most appropriate ways to address conflict and its aftermath, implying either/or choices when combinations of these elements often better reflect popular perceptions and lead to more effective practical strategies. The creation of a modern holistic system of accountability for international crimes should, as framed by the aspiration of a leading Ugandan lawyer, serve as the interface of the ICC and domestic processes that “link together in an inseparable synergy the restorative/traditional, official and international justice mechanisms.”

In other words, an authentic sense of justice that benefits from a sense of local level ownership is actually a mosaic of prosecutions, accountability, reconciliation, reparations, institutional reform, reintegration, truth-telling, and (it must be also be emphasized) retribution against those recalcitrant leaders that do not want to share a revitalized sense of community peace and stability. The precise contours of these linkages remain under debate in Uganda, and victims groups tell me that their most pressing needs revolve around psychosocial counseling and educational/behavioral deficits. I shall leave discussion of the traditional tribal methods used in Uganda for another posting, but vast numbers of former child soldiers have been…

Kony 2012: Clicktivism and Child Soldiering

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).]

How does Kony2012 inform our understanding of child soldiers? How does it sculpt international efforts to prevent child soldiering?

Kony2012 feeds into and reinforces pre-existing assumptions and narratives. I argue in my book Reimagining Child Soldiers that these assumptions and narratives, however well-intentioned, lead to policy initiatives that assuage collective sensibilities but ultimately fall short in terms of actual effectiveness.

People had thought hard about the effects of media on messages, and the massaging of messages, well before the Millennials were born. In 1964, Marshall McLuhan opined that the medium was (is) the message. Jay Milbrandt is right that, to get attention, international law would do well to embrace social media. As Charli Carpenter points out, Luis Moreno-Ocampo feels similarly. But the content of the message itself still really matters. If international law grounds itself upon stylized content intentionally airbrushed just to increase attention-worthiness then, ironically, it may leave us in a worse-off position. More international law, and more attention to international law, does not invariably lead to progress, problem-solving, or improvement.

The Kony 2012 campaign encourages LRA leader Joseph Kony’s capture and transfer to the ICC to face a slew of charges, including…

Kony 2012: Social Media: Helping or Hindering Child Soldiers?

by Julie McBride

[Julie McBride is a PhD candidate at Queen’s University in Belfast, researching the development of the war crime of child soldier recruitment in international criminal law. You can find her on Twitter @JA_McBride]

When the Kony2012 video was launched last month, I found myself, for one of the first times, discussing child soldiers outside of the context of my work. Several friends asked me what the deal was with the 27-minute video (an epic length by YouTube standards) clogging up their Twitter and Facebook newsfeeds. I gave them a general synopsis of the oft-repeated criticisms of Invisible Children that were to gain even more momentum in the following days: they had some questionable financial practices, they advocated for the military intervention, and they dramatically over-simplified a complex political scenario. Although I was pleased to see that the child soldier issue appeared to have regained its status as the cause du jour, it is difficult to imagine a close connection existing between such viral campaigns and tangible results. The idea that social media can be a tool in the arrest of warlords and those indicted by international justice mechanisms appears incredibly ambitious. It also suggests that a strong relationship exists between awareness raising and action; between so-called ‘slacktivism/clictivism’ and justice. The Prosecutor of the International Criminal Court, Luis Moreno-Ocampo even seems to be getting carried away, saying he thinks that Invisible Children will ‘produce the arrest of Joseph Kony this year’.

The video itself had a broad, yet simple appeal: using the son of the founder to create a distinction between the unfortunate Ugandan child soldier and the fortunate American child who describes Joseph Kony as a ‘bad guy’. But it raises the question of how social media can assist in bringing those who commit war crimes and crimes against humanity to justice. There are two competing sides to this argument: that awareness raising on atrocities is a sufficient goal in and of itself, but, conversely, that it perpetuates a false message that knowledge of atrocities will somehow stop them; that making Joseph Kony ‘famous’ will lead to his arrest. It critically negates to account for the multitude of steps required after clicking ‘share’ that will lead to Kony in a Hague courtroom. It also fails to consider that, like all trends, the sudden interest in Kony and child soldiers will not last: after a few short days of worldwide attention…

Weekday News Wrap: Friday, April 20, 2012

by Jessica Dorsey

Kony 2012: Social Media Activists as Norm Entrepreneurs

by Roger Alford

I generally subscribe to a constructivist theory of international relations. On many issues I do not think state interests are fixed and this fluidity allows a space for norm entrepreneurs to alter state preferences. With any successful campaign, specific actors promote ideas that catch fire and create a norm cascade reflected in consensus on the appropriate path. That consensus often is reflected in treaties, but it need not always be the case. The final stage is typically a process of norm internalization, in which an idea that once was novel reaches a tipping point and becomes the new normal.

Individual actors have always attempted to change state behavior. Sometimes they have done so from within the state, and altered state interests through incremental changes as political actors. Other times they are prophets from outside the system, calling for change. The examples one could give of such norm entrepreneurs are legion and the modes they have employed change with the seasons.

In the 19th century, Henry Dunant’s Memory of Solferino was an international sensation, leading to the establishment of the International Committee of the Red Cross, which has been one of the most instrumental forces for the development of international humanitarian law in history. In 1934 Robert Cecil promoted the Peace Ballot to rally British support for the League of Nations. The results were astounding. “Overnight, politicians of all stripes became League supporters and advocates of collective security,” wrote one historian. The photograph of Zulu Chief Albert Luthuli burning his Pass Book in response to the Sharpeville massacre of 1960 made international headlines, and for the first time in history South Africa faced overwhelming international condemnation for apartheid. Dozens of protest songs from the likes of Bob Dylan, John Lennon, and The Doors helped turn the tide of American public opinion against the Vietnam War.

The point is so obvious that it scarcely needs stating: individual actors have used all types of media throughout history to alter public perceptions and force political change.

What is different about social media activists today? Two things. First, the barriers to entry are extremely low. Anyone who can effectively communicate on a digital platform is a potential norm entrepreneur. Only those who do not have the desire or ability to effectively use new media platforms are excluded from eligibility. Second, the new media platforms can reach 2.3 billion Internet users instantaneously. Everyone who is plugged in is a potential information consumer.

It therefore should not come as a surprise that a bunch of sophisticated young activists who were completely unknown to us just one month ago were able to reach over 70 million people–approximately 3 percent of all Internet users–in less than one week. Their message and strategy were incredibly effective at reaching the masses.

Of course, there is much to criticize about the Kony 2012 video if it is viewed in isolation. But the broad sweep of their campaign is much more nuanced and detailed than one video. One should think of the Invisible Children campaign as concentric circles of outreach, with the one superficial, emotive and short video everyone knows about as the outer layer of the onion. I’m not surprised that intellectuals are criticizing the Kony 2012 video. But I’m also not surprised that it went viral.

Kony 2012 has achieved the desired result, which was to make Joseph Kony famous, or rather infamous. Whether Kony will be held accountable in an international court of law remains to be seen. In the end, that may be beside the point. The court of international public opinion has rendered its verdict.

Kony 2012: IHL 2.0: Is There a Role for Social Media in Monitoring and Enforcement?

by Anne Herzberg

[Anne Herzberg is the Legal Advisor at NGO Monitor, a Jerusalem-based research institution. Her post is based on a forthcoming paper (2012), presented at the “Old Laws, New Technologies Conference” sponsored by the Hebrew University Minerva Center for Human Rights and the ICRC (early draft here). Anne is the co-author of Best Practices for Human Rights and Humanitarian NGO Fact-finding (Nijhoff 2012).]

Many have commented on the role of social media in facilitating the organized uprisings of the “Arab Spring”. A lesser discussed aspect of those events is the astonishing access social media has provided us to armed conflict in real time. Within minutes of Mohamar Qaddafi’s capture and subsequent killing on October 20, 2011, for instance, images of the event recorded on cell phones were transmitted around the world via social media platforms. These graphic, yet unverified, scenes were widely disseminated even before Qaddafi’s death was confirmed, and immediately sparked an international debate regarding the circumstances and legality of his killing.

Social media can be a powerful tool, focusing worldwide attention on armed conflict and international humanitarian law (IHL); and it can facilitate greater scrutiny of the battlefield. Due to its scale and the ability to easily and exponentially reproduce information (as we saw with the massive viewership of the Kony2012 video), social media is useful for quickly and efficiently publicizing events and information which can be used to generate public interest, to bolster advocacy campaigns, and to educate about the law.

One emerging social media tool increasingly used during armed conflict and promoted as a new way to “enforce” violations of IHL is “crisis mapping”. It is interesting to note that the NGO Invisible Children (creators of Kony2012) were also one of the early adopters of this technology through their LRA Crisis Tracker website…

Kony 2012: The Social, the Media, and the Activism: Kony Meets World

by Beth Karlin

[Beth Karlin is the Program Director of the Transformational Media Lab within the Center for Unconventional Security Affairs (CUSA) as well as a Research Associate at the California Institute for Telecommunications and Information Technology (Calit2) and a doctoral student in the School of Social Ecology at University of California, Irvine. Her research focuses on the potential and application of new media and technologies for civic engagement and social change.]

Many new trends in technology and communication are changing the landscape of civic engagement and activism.  Social justice campaigns are utilizing a broad array of strategies to engage the public through new media, including online distribution, blogs and podcasts, and extensive use of social media. Although we have seen many successful new media campaigns over the past decade, none has captured the public eye like the recent Kony 2012 video released by the group Invisible Children (IC). For many people, Kony 2012 has become emblematic of the potential reach and impact of social media– 100 million views in 6 days speaks to a whole new dimension in terms of speed and scale of communication. However, the success of Kony 2012 rests, not just on the new tools of social media, but also on much more familiar and conventional forms of political activity. Though social media may have been the catalyst, it was not the only reagent in this reaction. A few considerations in the case of Kony:


Invisible Children rocketed to global fame in March 2012 with the release of the Kony film, but this was not the first film from this group… or the second – Kony 2012 was Invisible Children’s 11th film. They screened their first film, “Invisible Children: The Rough Cut”, in 2004 and have been releasing new films fairly regularly since 2006.  A core component of their outreach model are their biannual tours, in which teams of four “roadies” travel for 2-3 months hosting community screenings in a set geographic region. Each tour corresponds with a specific film and a specific event or campaign to engage viewers.  Despite the “overnight sensation” moniker…

Links List at Lawfare of US General Counsel Speeches on Targeted Killing, Hypothetical Drone Programs, and Related National Security Law

by Kenneth Anderson

In case anyone finds it useful, over at Lawfare I have posted up links all in one place to the leading speeches by the US government’s senior national security lawyers on targeted killing, hypothetical drone programs, covert action, and related national security law issues – Harold Koh (DOS), Jeh Johnson (DOD), Eric Holder (DOJ), Stephen Preston (CIA) – and one by non-lawyer but senior counterterrorism advisor John Brennan.  Plus a blog post by Harold Koh defending the legality of the US raid against Bin Laden at … OJ!

Kony 2012: Diverging Trajectories: Social Media and #InternationalLaw

by Mark Kersten

[Mark Kersten is a PhD candidate in International Relations at the London School of Economics and author of the blog Justice in Conflict. You can find him on Twitter @MarkKersten]

It is widely accepted wisdom that social media is radically transforming how we understand the world and share information. In this context, the emergence of Twitter, Facebook, blogging, etc. challenge the very practice and scholarship of International Law (IL) and International Relations (IR). Yet, IL and IR appear to be moving on a fundamentally divergent trajectory from social media. By bridging these diverging trajectories, however, IR and IL can retain salience in an increasingly interconnected world.

Reducing complexity is central to social media. The viral campaign by Invisible Children, KONY2012, serves as an obvious example. The campaign efficiently, if brutally, simplified the situation in northern Uganda and areas of Central and Eastern Africa afflicted by Joseph Kony and his Lord’s Resistance Army. While widely discredited after a spectacular series of blunders, Invisible Children’s message is simple, fitting within the 140 character limit of a Twitter post. Its Twitter ‘hashtags’ were short and effective, especially “#stopKony”. There wasn’t much more to the campaign – and surely that’s the way Invisible Children wanted it to be.

On the other hand, IL and IR scholarship and practice seek out complexity. More and more academic journals proliferate with increasingly specific subject-areas. The result is the creation of ‘knowledge ghettos’ where complexity is deified and often conflated with accuracy. Consider the recent verdict in the case of former Democratic Republic of Congo rebel, Thomas Lubanga Dyilo, the first-ever verdict by the International Criminal Court. Controversially, Lubanga was charged and convicted to what amounts to a single charge: the use of child soldiers in an armed conflict. Yet, the Lubanga judgement is 624 pages long! Of course, legal judgements have always tended to be lengthy, the ICC judges were tasked with adjudicating on a number of critical and difficult issues, and the verdict may signify more of an exception rather than a trend. But still, 624 pages? As Dov Jacobs pointedly wrote

Weekday News Wrap: Thursday, April 19, 2012

by An Hertogen

Former CIA Director Hayden on Interrogation, Common Article 3

by Deborah Pearlstein

I had the pleasure of attending a terrific conference at Duke this past weekend, hosted by the Center on Law, Ethics and National Security. My panel addressed perennial questions about whether the courts should defer to the executive on questions of national security (on which more than you want here), but there were terrific sessions on, among other things, lessons learned from joint international military operations, with officers from US, Canadian, UK, and Australian armed forces; about IHL/human rights law issues in targeting, detention, and cyber (the last with Dick Jackson, Laurie Blank, and TJAG of the Navy Adm. Houck); and about the many ways in which corporations are confronting national security issues. I’m told video of the panels will be available soon.

Perhaps the most remarkable session, though, was the dinner talk given by General Michael Hayden, who held, among other positions, the job of CIA director during the George W. Bush administration. The talk was delivered to a dinner hall of at least 100 people (I suspect more), including a range of academics, many serving and retired members of the U.S. military (and some of our allies), members of the Durham community, etc.

Hayden was deeply skeptical of Obama (for some combination of what Hayden saw as hypocrisy and naiveté), aggressive in his defense of Bush-era detention and interrogation programs, and strikingly candid in describing his role and the depth of his support for the CIA’s involvement in these endeavors. It seems worthwhile briefly summarizing his remarks in sense and sensibility here.

To some extent, the speech’s greatest rhetorical flourishes were phrases we’ve heard before. As Hayden described, he set his course according to the CIA’s “vision statement” that “ye’ shall know the truth, and the truth shall set you free.” Our counterterrorism efforts require the engagement of “rough men,” the ones who make it possible for us (as Orwell, and then Churchill, and later, Jack Nicholson, put it) to “sleep safely at night because [they] stand ready to visit violence on those who would harm us,” and who (this is Hayden now) “go where others cannot go, and do what others cannot accomplish.” This conflict is especially novel in its needs for such “rough men” because our enemy this time doesn’t follow the Geneva Conventions, and because we can’t, as Hayden put it, “define who the enemy is.” Thus, what we need are men willing to get “chalk on their cleats” in walking at the edge of the boundaries set by the law on detention, interrogation, etc.

It was difficult to take notes without editorializing. I had thought, for example, that many of our past enemies had also failed to abide by the Geneva Conventions. (The Vietcong comes to mind.) I’m likewise not sure how it is one wages a war without knowing, with at least some specificity, who the enemy is. The football metaphor was at least familiar from Hayden’s previous public statements. But I hadn’t fully understood that in Hayden’s version of the game, the object seems to be all unrelated to, say, scoring a touchdown, but is rather more about getting chalk on one’s cleats as a matter of first principles.

Confronted as CIA Director with the courts’ increasingly vigorous engagement on these questions, Hayden was scathing in his criticism of Justice Stevens and his opinion for the Court in Hamdan. That case of course held, among other things, that Common Article 3 applied in the armed conflict with Al Qaeda, at least as it played out (as CA3 puts it) “in the territory of” Afghanistan. In response to this and other judicial decisions, Hayden recounted encouraging his subordinates to buck up: “We’ve been kicking their asses in FATA [describing the volatile tribal region in the northwest of Pakistan], we’re going to kick their asses here too” in the habeas cases the courts allowed to proceed.

As for the use of interrogation techniques the U.S. authorized (techniques CA3 would seem to prohibit), from slapping prisoners to waterboarding, Hayden expressed the view that he believes those actions lawful, and indeed that it would have been “selfish” for him not to support such measures being taken. For then he would have been putting his own personal concerns (namely, it seemed, a fear that one might later be held legally liable for such actions) above those of the nation. “Democracies cannot wage war over the long term on the basis of strict legalisms,” he said.

Finally, as part of his recurring criticisms of Obama and his staff, Hayden strikingly chose to describe some of the exchanges he had with then President-elect Obama when Hayden went to Chicago to brief Obama on various matters in December 2008. He even recounted some of the questions the President-elect put to Hayden in these briefings.

I would’ve thought the content of such meetings confidential. Or perhaps not.

Sudan-South Sudan War, and the Limits of the Coase Theorem in International Law

by Kenneth Anderson

It’s always fun to find new ways to apply the Coase Theorem, particularly in situations of international relations and law.  So, we’ve seen it raised as a way of talking about bribing Libyan generals not to fight, how to avoid war over conflicting economic claims in the South China Sea, and lots of other situations.  There’s something useful about seeing how Coasean logic might apply, even far afield of conventional law and economics.  But it’s also worth noting that some situations in which the Coase Theorem ought most easily to apply in real life – where, at bottom, it’s just about money – things don’t work as one might have hoped.

Thus, the rapidly heating up war between Sudan and South Sudan.  It is about oil, which is to say, for the two regimes it is about the money – with oil production being the only thing keeping each regime afloat.  In that sense, there’s a strong common interest that should allow party bargaining.  But the Coase Theorem requires as a condition to bargain that the parties have clear legal entitlements and liabilities in order to provide a reference framework for bargaining.  One might have thought that the international settlement that brought about the then-peaceful separation of South Sudan from Sudan would therefore have insisted on clear legal entitlements to the oil fields, production facilities, transport of oil, in the interests of both parties.  Unfortunately it left all this open, along with the final question of the borders.

With no clear legal entitlement – let alone a way to enforce it short of using force – there is no clear basis for bargaining, even when there is a common value of money via oil.  Clear titles would then have provided a basis for prior bargaining over who would get what in the division of payoffs.  Moreover, each party would presumably have seen that the transaction costs involved in war – to deny the other any entitlement to which it might lay claim by destroying the ability to exploit the resource at all – would far exceed the benefits even of winning.  Unfortunately, it is not so far turning out that way; the legal entitlements themselves are the object of the war:

[R]ather than sparking an all-out military confrontation, each side’s aim may now be to target one another’s oil facilities and wait for their opponent to crumble under armed insurgencies, popular unrest and fuel shortages. The two countries have already driven their economies to the brink of implosion since the South split away, cleaving the vital oil industry in two. Squabbling over oil payments and border fighting has withered combined crude output – previously the main source of foreign currency and state revenues for both countries – from around 500,000 barrels a day before partition to just over a tenth of that. Food prices are soaring on both sides of the border and currencies reeling as officials scramble to make up for the sudden loss of revenues in countries already reeling from years of war, mismanagement and U.S. trade sanctions.

But despite their weaknesses, both sides have consistently reckoned they have the upper hand on their foe, partly explaining why fighting has escalated despite the obvious fact that neither side can actually afford to fight a war … ”Khartoum is fighting for its survival,” said Peter Bashir Gbandi, a deputy for the ruling Sudan People’s Liberation Movement (SPLM) in the South’s national assembly, during an emotional Juba panel debate packed with bellicose comments and broadcast live on radio …. many in the South have predicted Sudan’s President Omar Hassan al-Bashir, in power since a 1989 coup, will soon meet the same fate as leaders in neighbouring Egypt and Libya.

If the South can hold out a few months longer, the reasoning goes, Sudan’s people will surely overthrow their government and replace it with a regime more receptive to Juba’s demands. Khartoum, on the other hand, sees a good chance the South – already hit by domestic rebellions, horribly violent cattle raiding and widespread poverty – will soon run out of money and descend into ungovernable chaos.  The result is what Harry Verhoeven, a University of Oxford researcher who has studied Sudan extensively, calls a “war of attrition” in which both sides wait for the other to crumble internally or run out of the funds and fuel needed to wage war.

As background to Sudan and South Sudan, I recommend The Sudan Handbook, put out by scholars of the Rift Valley Institute (of which I am a senior fellow) – reviewed here by Tom Porteous of Human Rights Watch.

Kony 2012: Catching Warlords with the Stars

by Sarah Kendzior

[Sarah Kendzior is an instructor at Washington University in Saint Louis. Follow her on Twitter @sarahkendzior]

Kony2012 rose and fell on the power of celebrity. “We want to make Kony famous”, Invisible Children proclaimed, and it did, enlisting the support of twenty “culture-makers” to spread the word that an African child-killer was still at large. Kony2012 is often touted as an example of how ordinary people can use the internet to influence political institutions, but what it really proved was the durability of entrenched media hierarchies. This was not a social media revolution. This was the Biebs leading the blind.

The rationale behind Kony2012’s selection of celebrities like Justin Bieber, Oprah Winfrey, Rick Warren and Rush Limbaugh to promote their cause was as clear as its donkey-elephant logo: Kony2012 was by Americans and for Americans, a salve for our partisan psychic wounds. If A-listers this diverse can come together, then anything is possible. The video molded the American vision of justice with the American fantasy of fame, making a complex conflict seem easy to resolve. Like celebrity, retribution comes if you dare to dream big. And so was born a new national pastime: catching warlords with the stars.

According to YouTube, most of the initial viewers of Kony2012 were 13-17 years old. Kony2012 drew this audience, too young to even vote, by enlarging its sense of civic possibility – you can help catch Kony, it proclaimed, and here is how you do it. The film’s Hollywood production values and emotional narrative are credited for its appeal, but just as central were its celebrity interlocutors. Would Kony2012 have gone viral without Ryan Seacrest and Rihanna? Would it have crossed the one million mark without that pivotal Oprah tweet?…

Kony 2012: The Fallacy of Slacktivism: Kony 2012 and Disruptive Activism

by Jay Milbrandt

[Jay Milbrandt is the Director of the Global Justice Program at Pepperdine University School of Law.  Jay is the author of the recent book Go and Do: Daring to Change the World One Story at a TimeYou can connect with Jay on his blog or on Twitter @JayMilbrandt]

I was the target market for Kony 2012.  I’m a connected, engaged Millennial.  I watched Invisible Children’s first movie when it came out.  I’ve met the filmmakers.  I’ve even been to Invisible Children’s office in Northern Uganda.

I was traveling abroad and not as active online when Kony 2012 went viral.  Had I been at home, I would have hit “Like” and I would have re-Tweeted it, just as I have with other campaigns.  Much of the world would have condemned my online share as “slacktivism”—a quick and easy way to feel like I made a difference.

I’ve never been interested in activism—I’ve never protested anything and I’ve never started a petition.  Except one time.  I got free on-stage tickets to U2 if I would ask concertgoers to sign petitions advocating for the release of Aung Sung Suu Kyi in Burma.  Wearing a “Burma” t-shirt and employing a clipboard, to the public, that day I was an activist.

It begs the question, in today’s world, when does one cross the threshold to “activist”?…

ASIL Annual Research Forum: Deadline Extended until April 23

by An Hertogen

If last week’s post about  ASIL’s 2nd Annual Research Forum at the University of Georgia Law School on October 20-21 was too short notice, don’t despair. We have been informed that the deadline has been extended until Monday, April 23.

The Research Forum, a Society initiative introduced in 2011, aims to provide a setting for the presentation and focused discussion of works-in-progress by Society members. All ASIL members are invited to attend the Forum, whether presenting a paper or not.

Papers can be on any topic related to international and transnational law and should be unpublished (for purposes of the call, publication to an electronic database such as SSRN is not considered publication). Interdisciplinary projects, empirical studies, and jointly authored papers are welcome.

Interested participants can submit an abstract (no more than 500 words in length) summarizing the scholarly paper to be presented at the Forum here.

Kony 2012: Seven Questions about Social Media Campaigns and International Law

by Charli Carpenter

[Charli Carpenter is an Associate Professor of Political Science at the University of Massachusetts-Amherst. She blogs at Duck of Minerva.]

One of the most curious aspects of the Kony2012 campaign is its backing by an important and powerful public servant, Luis Moreno-Ocampo. In publicly endorsing the campaign, Moreno-Ocampo, the chief prosecutor for the International Criminal Court, has espoused a powerful causal hypothesis: that social media campaigns are an indispensable new tool for the promotion of international justice. In the original Kony2012 video Moreno-Ocampo states: “We’re living in a new world, a Facebook world, in which 750 million people share ideas, not thinking in borders.” In the follow-up video, Beyond Famous, Moreno-Ocampo repeats the message: “We are changing the world, guys. This is completely new.” At a fundraiser in Los Angeles, Moreno-Ocampo brokered relationships between Invisible Children staff and Hollywood, and told reporters: “The Invisible Children movie is adding social interest that institutions need to achieve results.” In another interview, he stated: “Invisible Children will, I think, produce the arrest of Joseph Kony this year.”

Moreno-Ocampo’s enthusiasm for the campaign and for Invisible Children can be understood partly in terms of public relations for his own institution, and for the synonymity of IC’s narrative with the one underlying his own indictment of Joseph Kony for crimes against humanity. But his claims that campaigns like this will decisively shift public attention (and therefore policy attention toward international law and justice and the global institutions that promote them) deserve critical inquiry. Not only are those relationships probably more complicated than he suggests, but research on the “CNN effect” suggests both that this agenda-setting role of public awareness campaigns isn’t entirely new, and also that public engagement – while perhaps a good in and of itself – doesn’t necessarily translate into government policy to enforce international law…

Weekday News Wrap: Wednesday, April 18, 2012

by Jessica Dorsey

Kony 2012: Symposium on Social Activism and International Law

by Roger Alford

Opinio Juris is pleased to announce an online symposium addressing social activism and international law. As our readers know, Kony 2012 was a YouTube sensation, spreading faster than any video in history. Although the details are airbrushed, the central theme of the video is about international law. The key idea of the video is that the indicted fugitive Joseph Kony should be brought to justice before the International Criminal Court to face charges of war crimes and crimes against humanity.

Millions of viewers who never thought about the International Criminal Court before are encouraged to embrace this new court and take on the cause of child soldiers. In the Internet age, a handful of tech-savvy twenty-somethings captivated the globe and generated a cause célèbre. Google Trends says it all: in a matter of days an issue that was completely off the radar became one of the world’s most-discussed topics.

For the next three days, we have gathered a variety of experts to discuss social activism and international law. Given the nature of the issue, we have invited experts across disciplines to discuss the topic. Among the topics that our experts are invited to discuss are the following:

1. How does the social media phenomenon affect the way people view international law?
2. What are the pros and cons of using social media to promote international law?
3. Does social activism effectively raise awareness and promote accountability?
4. What is the difference between activism and “slacktivism”?
5. How has Kony 2012 impacted the situation in Northern Uganda and the surrounding area?
6. How has Kony 2012 impacted our perception of child soldiers?
7. What does social media activism promise for the future of international law?

Kony 2012 has generated a tremendous amount of discussion, with a wide range of viewpoints. What is often overlooked is how this viral sensation has impacted international law. So let the debate begin!

Why the Philippines Has No Chance of Making China Go to Court

by Julian Ku

I’ve been following the standoff between the Philippines Navy and Chinese “surveillance” ships in the South China Sea (or West Philippines Sea) with some concern. As I noted here, China has some rather expansive territorial claims in the South China Sea that countries like the Philippines are resisting.  But given the relative sizes of their navies, it is obvious that the Philippines cannot rely on military force to resist China’s claims. But I am doubtful that the Philippines’ attempt to invoke the UN Convention on the Law of the Sea or the International Tribunal of the Law of the Sea will have much effect here.  Here is China’s argument, according to a Filipino newspaper:

“Until 1997, the Philippine side has never disputed China’s jurisdiction of and development of Huangyan Island. On the other hand, the Philippines indicated on a number of occasions that Huangyan Island was beyond its territory. According to international law, including the United Nations Convention on the Law of the Sea, the Philippines’ claim of jurisdiction and sovereignty rights over Huangyan Island with the arguments of Exclusive Economic Zone is groundless. Unclos allows coastal states to claim a 200-nautical mile EEZ, but coastal states have no rights to infringe on the inherent territory and sovereignty of other countries,” it said.

China’s position is that this is a question of sovereignty, and not the Law of the Sea.  There is no basis for the ITLOS to assert jurisdiction over this dispute, without China’s consent.  This seems right to me.  Except that no one is sure exactly what the basis of China’s sovereignty claim is, but assuming it has one, then the Law of the Sea is not going to help the Filipinos out here.

More on the End of Isms in International Relations Theory (+ The Way Forward for IR/IL)

by Peter Spiro

The answers to my questions last week were no further away than the latest copy of the AJIL and an important article by Emilie Hafner-Burton, David Victor, and Yonatan Lupu on Political Science Research and International Law: The State of the Field.  This is a must-read for anyone interested in IR/IL, past and future.

As for the “war on paradigms”, it has apparently been won, decisively.  The major schools of IR theory are not (as was once commonly the case) set out as optics.  In fact, the words “realism,” “liberal”, and “constructivism” are almost entirely absent from the piece.  This can only have been a conscious choice.  I wonder whether the use of “political science” in the title rather than “IR theory” is of some intentional significance. Perhaps the subfield is redefining itself altogether?

That said, not surprisingly, the isms cast a shadow here.  The apparent axis is along four “faces” of power: 1) the ability to coerce, 2) the ability to influence decisionmaking, 3) “the ability to shape what people want and believe, such as through the spread of norms and the creation of interests and identities, and 4) “discursive” power, through the creation of knowledge and social customs.  Sound familiar?  There is something of a refrain in which “scholarship that works with the third and fourth faces of power” points in a different direction than that working with the first two, for which read: constructivism v. realism.

The piece duly notes notes that those third and fourth faces account for the role of nonstate actors in international politics, as constructivism does.  But nods in that direction seem mostly parenthetical. The skepticism surfaces in the course of highlighting areas for interdisciplinary collaboration, including with respect to private actors:

For the last two decades, both fields have devoted substantial attention to NGOs as important private actors, and especially to public interest groups that have mobilized transnationally to press for arms control (for example, the ban on land mines), protection of human rights (for example, the rights of women), and all manner of environmental goals. We are concerned that this focus—which arises in part because many scholars working in these areas are also normatively committed to the ideals of the most active NGOs—has been prone to overstate the importance of NGOs.

Maybe, maybe not.  No doubt most IL/IR scholars are sympathetic to mainstream NGO roles (and some scholarship on NGOs uncritically accepts their universalism), but I’m not sure that translates into an exaggeration of NGO power.  The counterbalance is the interest both IL but perhaps especially IR scholars have in not upsetting received wisdom on the centrality of state power.   Non-state actors don’t fit very well into 2×2’s.  The skepticism seems oddly untethered to anything empirical: if NGOs aren’t powerful, then IR should be able to prove it.

Perhaps the problem is that, “[i]n practice, sifting the effect of international law from other influences on behavior is so complex that essentially all of the political science insights about the causal mechanisms at work are tailored to the particular issue areas where the analysts in question are experts.”  In other words there may not be much that is generalizable, or at least not much that has been generalized, about particular case studies.  Except, that is, where there is a larger n set and an institutional setting that allows for some number crunching.  The piece seems to favor trade law, arms control, international tribunals, and environmental and human rights agreements.  That is where political science and law enjoy a fruitful present and future.

By contrast, there isn’t much discussion on the potential for collaboration in such areas as international criminal law; international financial regulation; international migration; international health regulation; everything cyber; anything in which “pressure groups” are genuinely transnational, as opposed to “domestic” and thus easily cabined in two-level games.  I’m sure IR has a lot to say about these (some of which has already been said).  But I’m not sure what the takeaway is for IL scholars, other than to understand the importance of non-doctrinal analysis.  This piece by Ken Abbott and Duncan Snidal on codes of conduct and “new governance” regimes supplies an example: not IR in any distinctive way (as far as I can tell), but a very useful systematization.  One might even feel nostalgic for the isms, especially as an outsider to IR (and thus less invested in the tournament) – they set out interesting templates for thinking critically through IL puzzles.

And what about normativity?  Political science refrains from normative assessment where law has long been comfortable with it.  Is there some sort of middle ground?

Detention Debates

by Deborah Pearlstein

Michigan Law Review is out with its Annual Survey of Books in the law, and while the self-promotion is awkward at the least, it feels a bit more in the interest of full disclosure (given what I’ve blogged about here in the past) to note that the issue includes my review of Ben Wittes’ latest book, Detention and Denial. A version of the review is accessible without subscription here. As I note in the review, a lot has happened on the detention front since Ben’s book was published – centrally including the whole debate over the passage of the NDAA, new federal legislation that had aimed (and ultimately failed) to do what Ben advocates in his book: detail the scope and nature of U.S. detention authority in war and counterterrorism operations. At the same time, there is little sign that Congress (or any of the other branches) will be out of the detention business entirely anytime soon. So for those who follow these debates, and those thinking through what detention policy should be after the United States hands its Afghanistan detention operations over to the Afghans in September of this year (the MOU is here), I summarize and critique the policy arguments Ben makes in favor of broad forward-going detention authority, and in favor of even more vigorous involvement by the legislative branch.

Weekday News Wrap: Tuesday, April 17, 2012

by Jessica Dorsey

A Deal to Try Saif in Libya?

by Kevin Jon Heller

I have no idea whether it’s true, but that’s what the BBC is reporting:

The International Criminal Court could soon drop its demand that Saif al-Islam Gaddafi be transferred to the Hague for trial, officials have told the BBC.

They say the most prominent son of the former Libyan leader Muammar Gaddafi could instead be tried inside Libya but under the supervision of the ICC.

The argument over who should try him has been going on ever since he was captured in November last year.

The ICC has indicted him for crimes against humanity.

Now the Libyan justice ministry says a deal is being finalised where Mr Gaddafi can be tried in Libya but with security and legal supervision by the international court.

The BBC’s Jon Donnison, in the Libyan capital Tripoli, has been told by a western official with good knowledge of the case that a deal is close to being agreed.

The article raises a number of questions.  What would the charges be?  Would the ICC impose a de facto complementarity requirement on Libya, conditioning any deal on Libya’s willingness to prosecute Saif for the same crimes against humanity, murder and persecution, based on the same conduct for which the arrest warrant was issued?  Or would the ICC be willing to allow Libya to prosecute Saif for “ordinary” crimes (i.e., not international) based on the same or different conduct as long as the charges were adequately serious?  (An approach to complementarity that I have defended here.)  How, exactly, would the ICC “supervise” the trial?  Are we simply talking some sort of positive complementarity, whereby the Court would provide the Libyan court system with training and the like?  Or would the ICC have the right to insist on specific rules of evidence, due-process guarantees, and so forth?

There is also the question, of course, of how to reconcile a potential deal with the Rome Statute.  As I read the Statute, because the charges have not yet been confirmed, the OTP would have the right to discontinue the arrest warrant; Article 61(4) provides in relevant part that “[b]efore the [confirmation] hearing, the Prosecutor may continue the investigation and may amend or withdraw any charges.”  But if the OTP withdrew the charges against Saif, what leverage would it have to ensure that Libya lived up to its end of the deal?  If Libya broke one of its promises to the Court, I think that the OTP’s only remedy would be to seek a new arrest warrant for Saif and then try to convince the Libyan government to honor it — which it clearly wouldn’t, given its attitude toward the first arrest warrant.

The bottom line: if the BBC report is accurate, the OTP would obviously be trying to make the best of a very difficult situation.  Would ensuring that the ICC has at least some role in a national trial be a good idea?  To be honest, I’m not so sure.  I think it is very unlikely that Saif will get a fair trial in Libya, ICC involvement or not.  Any deal between the ICC and Libya, therefore, would means that the Court would be on the hook for the results of the trial — if it turns out to be a fiasco, the Court would share the blame with the Libyan government.  And rightfully so.  Be careful what you wish for, ICC!

Stay tuned…

British Public Opinion Turning Against European Convention on Human Rights

by Julian Ku

I know these polls might not reflect a whole lot of deliberation or thoughtfulness, but still, it is amazing to me:

Nearly three quarters of Britons think human rights have become a ‘charter for criminals’, a poll has revealed.

It showed a strong majority of 72 per cent hold negative views about the role of human rights laws.

Only one in six said human rights had not become a charter for criminals and the undeserving.

This is not a good trend for the ECHR and it would be interesting to see if this type of popular opinion will make a difference in UK policy or reform of its implementation of the ECHR.

Stewardship versus Sovereignty? International Law and the Apportionment of Cyberspace

by Duncan Hollis

Last month, I was scheduled to attend Cyber Dialogue 2012 – What is Stewardship in Cyberspace? at the University of Toronto’s Munk School of Global Affairs.  I was quite excited to attend given the line-up of participants with a truly diverse set of backgrounds and areas of expertise.  Unfortunately, despite nearly nine hours in the Philadelphia airport, I never made it because of this. Indeed, not only couldn’t I fly to Toronto, over the course of the morning and early afternoon I learned that I couldn’t get to Detroit, Erie, Syracuse or even Elmira, New York.  The day reminded me of one my favorite childhood stories from the “Bert and I” albums — ‘You can’t get there from here’.

Despite my physical absence, I did, however, contribute a short essay, which is now available on the conference website and on SSRN.  Here’s the abstract:

The 2012 Cyber Dialogue Conference, hosted by the University of Toronto, asked the question ‘What is Stewardship in Cyberspace’? This essay pursues that stewardship inquiry through the lens of international law. Existing debates on the nature of cyberspace have emphasized its suitability for governance by social norms, domestic law, or some combination of the two. Questions of international law — to the extent they are raised at all — have been limited to asking how (and how well) existing rules analogize to cyberspace. But international law also clearly has something to say about defining what kind of resource cyberspace is (or might become).

International law has long divvied up the world’s resources into categories, with different forms of governance for different types of resources. These categories suggest that a stewardship approach to regulating cyberspace could work. But doing so requires a critical assumption: that cyberspace is a shared resource (or one where individual interests are so comingled as to defy separation). That vision of cyberspace is not, however, universally held. Some deny that cyberspace is “space” at all, or insist that its resources can be (and are better off) apportioned to individual States. In particular, any use of the “stewardship” label for cyberspace governance will generate opposition from those who prefer to label cyberspace as subject to governance based on sovereignty. A contest pitting stewardship against sovereignty is likely to forestall, if not derail, agreement on any particular governance structure for cyberspace. Such a fight is not, however, inevitable. International law does not limit governing frameworks to those accompanying stewardship or sovereignty, but offers a spectrum of ways to regulate resources. This paper undertakes a brief survey of these hybrid approaches and suggests that — instead of fighting over what we should call cyberspace — a discussion of what behavior we want to encourage (or prohibit) is a more appropriate starting point for future conversations about cyberspace governance.

Some of the other papers may also interest readers. I’m particularly partial to this one by Melissa Hathaway and John Savage, especially since John and I had many hours to discuss it while we both spent the day trapped in enjoying the fine offerings of Philadelphia’s International Airport.

Daniel Klaidman Comments on CIA General Counsel Speech

by Kenneth Anderson

Daniel Klaidman, the journalist whose June 2012 book “Kill or Capture: The War on Terror and the Soul of the Obama Presidency” looks to be a must-read, has sent in a guest post to Lawfare discussing how the Stephen Preston speech came about and a bit of the inside maneuvering around the succession of speeches by Eric Holder, Harold Koh, Jeh Johnson, John Brennan, and now Stephen Preston.  (We should not neglect Harold Koh’s second statement, either – a guest post here at OJ.)

What is not widely knows is that Preston, a self-effacing lawyer with something of a patrician air, played a key behind-the-scenes role in pushing for the Obama administration to go public. The CIA was opposed to the more expansive disclosures advocated by Koh.  It did not want any mention of Awlaki or the kill operation, which was carried out under the agency’s covert drone program.  But Preston, along with the Pentagon’s Johnson and Koh, were the primary instigators for approving the more narrowly drawn speech that Holder ultimately gave in April.  Preston, who’d joined the CIA at the outset of the Obama administration, weighed in strongly with his new boss, David Petraeus.  The proposal gained serious momentum at a November, 2011 meeting of President Obama’s top national security advisers, when Petraeus forcefully backed the idea.  But then the initiative languished in the White House for a period of months.  With Preston’s encouragement, Petraeus continued to push for final White House approval of the speech, which came in late January.

(I’ve said that I will finally find a moment to comment on this speech, but it won’t be today, as I’m drafting final exams.)

Berman on Global Legal Pluralism

by Roger Alford

Dean Paul Schiff Berman has a new book entitled Global Legal Pluralism (Cambridge University Press 2012) that I heartily recommend to our readers. Here’s the abstract:

We live in a world of legal pluralism, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes imposed by state, substate, transnational, supranational, and nonstate communities. Navigating these spheres of complex overlapping legal authority is confusing, and we cannot expect territorial borders to solve all these problems because human activity and legal norms inevitably flow across such borders. At the same time, those hoping to create one universal set of legal rules are also likely to be disappointed by the sheer variety of human communities and interests. Instead, we need an alternative jurisprudence, one that seeks to create or preserve spaces for productive interaction among multiple, overlapping legal systems by developing procedural mechanisms, institutions, and practices that aim to manage, without eliminating, the legal pluralism we see around us. Such mechanisms, institutions, and practices can help mediate conflicts, and we may find that the added norms, viewpoints, and participants produce better decision making, better adherence to those decisions by participants and non-participants alike, and ultimately better real-world outcomes. Global Legal Pluralism provides a broad synthesis across a variety of legal doctrines and academic disciplines and offers a novel conceptualization of law and globalization.

As the abstract suggests, the great thing about the book is that Berman tries to steer a middle course between the sovereigntists and the universalists. Berman effectively argues that normative positions such as territorial sovereignty or universalism have no hope of triumphing in the hybrid world of overlapping legal regimes. Those who would embrace territorial sovereignty cannot hope for their position to prevail in a world of interdependence with permeable borders, multiple communities, and overlapping jurisdictions. By contrast, those who embrace universalism ignore the normative differences that cut across communities and thereby undermine their position.

Cosmopolitan pluralism is Berman’s solution to the “messy reality of law on the ground.” A cosmopolitan pluralist recognizes the role of all legal pronouncements as fundamentally rhetorical, and treats legitimacy not as a formal question but as statement that will or will not prove true over time. “[L]egitmacy becomes a sociological question about changes of legal consciousness,” he concludes, “and a cosmopolitan pluralist legal system seeks to keep those multiple voices in dialogue with each other to the extent possible.”

The book presents a wonderful addition to the literature on competing norms and will be a must read for anyone interested in navigating questions of legal pluralism in the age of globalization.

CCR Updates Evidence in Its ICC Filing Against Catholic Church

by Julian Ku

Ben Davis sends me this update on the new evidence submitted to the International Criminal Court against the Catholic Church.

Today, a survivor-led support group for sex abuse victims, which is under attack by U.S. Catholic officials, submitted to the International Criminal Court (ICC) new and extensive documentation that the organization says shows ongoing child rape by Catholic clergy and continuing cover-ups by bishops and Vatican officials. The Survivors Network of those Abused by Priests (SNAP) says the new evidence, submitted by SNAP’s attorneys at the Center for Constitutional Rights, underscores the urgent need to prevent future child sex crimes and cover-ups and hold church officials accountable for widespread

I assume that this new evidence is part of the difficult case for the clergy-abuse-victims at the ICC, especially in trying to establish that the abuses were a “crime against humanity.”  As I (and a bunch of commenters) suggested here back in September, this is a difficult, longshot case.  But the evidence is quite powerful, even if I still don’t see how it quite fits the legal requirements for ICC jurisdiction.

Weekday News Wrap: Monday, April 16, 2012

by Jessica Dorsey

The Federalist Society’s 2012 National Security Symposium

by Duncan Hollis

Those of you who, like me, missed this year’s Federalist Society Symposium on National Security can now watch all of the events on-line here.  The event was held April 5 in DC and included a morning panel on terrorist-related detentions, interrogations and trials, a lunchtime address by former Homeland Security Secretary Michael Chertoff, and an afternoon panel on potential cybersecurity legislation. Participants included  Vincent J. Vitkowsky, Nathan A. Sales, Charles D. Stimson, Stephen I. Vladeck, Benjamin Wittes, Glenn M. Sulmasy, Jamil N. Jaffer, Sharon Bradford Franklin, Matthew J. Eggers, and Michael Vatis.

Upcoming Events: April 15, 2012

by Jessica Dorsey

This is our second installment of this new feature, last week’s announcements can be found here.

Calls for Papers

  • McGill University, Faculty of Law, has issued a call for papers for its conference “Stateless Law? The Future of the Discipline” on September 27-28, 2012. Proposals are due on April 16, 2012. More information is here.
  • The Hague Institute for the Internationalisation of Law (HiiL) & the Netherlands Institute for Advanced Study in the Humanities and Social Sciences (NIAS) have issued a call for papers for the Conference on Collective Redress in the Cross-Border Context: Arbitration, Litigation, Settlement and Beyond on June 20-21, 2012 in Wassenaar, The Netherlands. The deadline for proposals is May 1, 2012.
  • The Canadian Council on International Law/Conseil Canadien de Droit International is organizing its 41st Annual Conference entitled “SOS International Law: International Law in Times of Crisis” in November. The call for papers closes on May 5, 2012.
  • The ASIL Private International Law Interest Group will meet in Durham, NC in October for a conference on “What is Private International Law?”. Proposals are due on May 15, 2012. The best paper by an author under 35 is eligible for the Private International Law Prize. Submissions are due on May 15, 2012 also.

Upcoming Conferences

Recent Events

The recent issue of the European Journal of Risk Regulation hosts a pioneering symposium devoted to one of the latest policy innovations currently experienced in the UK and the US: the fashionable, yet controversial, Nudge.

Weekend Roundup: April 7-13, 2012

by An Hertogen

This week on Opinio Juris, Chris Borgen drew our attention to a NY Times op-ed explaining the surprising reason why in the grand bargain dividing the top posts at the World Bank and the IMF between the US and Europe, the US ended up with the World Bank rather than the IMF.

Kevin Heller posted the abstract of his response in a mini-symposium of the Texas International Law Journal on Karl Chang’s article arguing that the law of neutrality provides the legal framework for the US conflict with Al-Qaeda. He also referred us to Lawfare for a discussion of the Al-Nashiri prosecution. In a throwback to the Cold War, he also quizzed us on a quote about Cuba following the controversy surrounding Miami Marlin’s manager Ozzie Guillen, and posted about Congressman West’s allegations about Democrats being members of the Communist Party. He also critiqued ICC Prosecutor Moreno-Ocampo for undermining the OTP’s credibility in Côte d’Ivoire.

Peter Spiro wondered about the cautionary lessons for legal academics of “postparadigmism” in International Relations and discussed a European Court of Human Rights decision denying Greek non-resident citizens the right to vote in the Greek parliamentary elections from their foreign place of residence.

Ken Anderson posted about a speech by the CIA’s General Counsel at Harvard Law School. In her post on this speech, Deborah Pearlstein discussed the authority for the CIA’s use of force under US constitutional law and the restraints on this use of force under international law. Continue Reading…

Moreno-Ocampo Once Again Undermines the OTP’s Credibility

by Kevin Jon Heller

Moreno-Ocampo’s inability to avoid allegations of bias has long haunted his tenure as Prosecutor.  It’s impossible to forget, for example, photos of him standing next to the Ugandan President, Youweri Museveni, as he announced that he was investigating the situation in Northern Uganda — an act that Ugandans widely perceived, rightly in light of the OTP’s failure to seriously investigate crimes committed by government forces, as indicating that the ICC was working on behalf of the Ugandan government.

Unfortunately, Moreno-Ocampo seems to have learned nothing over the years.  Case in point: the letter he just sent to Guillaume Soro, the former commander of the pro-Outtara rebel group Forces Républicaines de Côte d’Ivoire (FRCI), congratulating Soro on his election as President of the Cote D’Ivoire National Assembly.  Here is an English translation of some of the letter, which Soro posted on his Facebook page on April 4:

I have the honor to extend my most sincere congratulations and those of my collaborators on your appointment as President of the National Assembly of Côte d’Ivoire….  I want to reiterate my gratitude for your action and support for the work of my Office in Côte d’Ivoire, and I hope you will continue the same quality collaboration with my successor, Fatou Bensouda….  I hope we will have the opportunity to see us in the coming weeks to continue the fruitful cooperation between your Government and my office.

It is understandable that the OTP wants to maintain good relations with the Ivorian government, which has not ratified the Rome Statute but has accepted the Court’s jurisdiction on an ad hoc basis under Article 12(3).  The problem is that Soro does not exactly have clean hands in the various conflicts that have torn Cote D’Ivoire apart for the past decade; on the contrary, Human Rights Watch, the UN, and other groups have documented his responsibility time and again for a wide variety of very serious war crimes and crimes against humanity.  Here, for example, is a snippet from one of HRW’s 2011 reports

VJIL Symposium: Hannah Buxbaum Comments on “Like Moths to a Flame? International Securities Litigation after Morrison: Correcting the Supreme Court’s ‘Transactional Test'”

by Hannah Buxbaum

[Hannah L. Buxbaum is Interim Dean and John E. Schiller Chair in Legal Ethics, Indiana University Maurer School of Law.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

Thank you to Opinio Juris for hosting this online discussion and to the Virginia Journal of International Law for putting this discussion together. I have the pleasure of commenting on Professor Marco Ventoruzzo’s recent Article, “Like Moths to a Flame? International Securities Litigation after Morrison: Correcting the Supreme Court’s ‘Transactional Test’.”

The transaction-based test that the Supreme Court adopted in the 2010 Morrison decision – which limits the application of U.S. antifraud law to transactions that occur on U.S. exchanges, or that otherwise take place within the United States – was intended to eliminate the uncertainty and unpredictability created by the previous conduct and effects tests. As Professor Ventoruzzo notes, and as post-Morrison litigation demonstrates, the “bright-line” test has not succeeded in eliminating much uncertainty, particularly when it comes to defining the location of non-exchange based transactions. Professor Ventoruzzo’s primary objection to the Morrison test, though, is that it is “too narrow, undermining the investor protection goals of the securities laws” (p. 408). He notes that the new transaction-based test bars not only claims of foreign investors based on foreign transactions (such as those involved in the Morrison case itself) but also certain claims of U.S. investors. For instance, U.S. investors who purchase securities in transactions that occur abroad lose the protection of U.S. antifraud law, even under circumstances in which the purchase was solicited by means of fraud within the United States. His solution to this problem – and to the other flaws of the Morrison test – is to advocate the adoption of an “effects only” test for the applicability of U.S. antifraud law. Under his proposed test, a plaintiff would have to establish that “illegal conduct … created direct, substantial, and reasonably foreseeable effects within the United States” in order to invoke the application of U.S. antifraud law (p. 441).

In Professor Ventoruzzo’s view, the “effects only” test is preferable to Morrison’s transaction-based test because it will protect the interests of U.S. investors defrauded within the United States – and it is preferable to the old “conduct and effects” approach because it will be consistent with jurisdictional approaches taken in other countries, and might therefore promote international agreement on private securities enforcement. However, his discussion leaves room for some uncertainty about whether an effects-only test would serve those ends. He states that a foreign-cubed action (foreign investor, foreign issuer, foreign investment transaction) could be brought under U.S. antifraud law as long as the illegal conduct also produced consequences in the United States. That would be the case, he suggests, if the securities affected by the fraud were also listed in the United States in the form of ADRs, or if there were other holders of the securities who were U.S. residents (p. 441). But this would permit precisely the kind of foreign-cubed litigation that had become so problematic pre-Morrison – litigation in which a large number of foreign investors in a foreign issuer’s securities attempted to piggyback on litigation in the United States brought by a small number of U.S. investors. He does note that U.S. courts would still have access to tools, such as the doctrine of forum non conveniens, that could be used to dismiss the claims of foreign investors. But as many pre-Morrison decisions reflect, courts do not always choose to use those tools, even in circumstances where the application of U.S. law would cause significant jurisdictional conflict. It is therefore an approach to legislative jurisdiction that remains viewed as overly expansive in many other countries.

Under Professor Ventoruzzo’s test, only fraud whose effects were felt exclusively abroad would fall outside the scope of U.S. law (p. 442). In this aspect, his argument highlights very nicely the difficulty that all categorical tests face. The more interconnected the world’s markets, the less likely that transactions – and their effects – can be cabined neatly within particular territories. If that is true, then it may turn out that what we really need, other than in the clearest cases of overreaching, is more, not less, of the messy flexibility that comity can provide.

VJIL Symposium: Introducing Marco Ventoruzzo’s “Like Moths to a Flame? International Securities Litigation After Morrison: Correcting the Supreme Court’s ‘Transactional Test'”

by Marco Ventoruzzo

[Marco Ventoruzzo is a Professor of Law at Pennsylvania State Dickinson School of Law.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

Thank you very much to Opinio Juris for hosting this online discussion of my recent Virginia Journal of International Law Article – “Like Moths to a Flame? International Securities Litigation After Morrison: Correcting the Supreme Court’s ‘Transactional Test’.”

Because of the broad jurisdiction American courts have asserted in cases arising under the Securities Exchange Act of 1934, they have been called a Shangri-la for “foreign-cubed” class actions with little connection to the United States. Over the past forty years, the standards used by American courts to determine their jurisdiction in international securities disputes have evolved, culminating in the U.S. Supreme Court’s Morrison decision of 2010. The new transactional test promulgated in Morrison replaced all of its predecessor tests, from a test measuring whether the conduct in question took place in the United States to a test measuring whether the effects of the conduct were felt in the United States, to a combined conduct-effects test. This new transactional test is unsatisfactory, however, because depending on how it is interpreted, it is either too narrow to protect American investors as Congress intended in Section 10(b) of the Securities Exchange Act, or too broad to resolve the ambiguities that plagued the conduct-effects test. This Article proposes a new effects test that will resolve ambiguities, protect American investors, and refrain from asserting American judicial jurisdiction overseas contrary to principles of international comity. Though the effects test would not grant private parties a cause of action against violators operating in the United States but who exclusively defraud those overseas, Congress has already granted authority to federal agencies to pursue such bad actors. The effects test is also in accordance with principles of other important jurisdictions, such as the European Union, and could serve as a basis for an international agreement on jurisdiction in international securities cases.

VJIL Symposium: Bâli Answers to Shambayati and Ginsburg

by Asli U. Bali

[Aslı Ü. Bâli is Acting Professor of Law at UCLA School of Law.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

Many thanks to Tom Ginsburg and Hootan Shambayati for their thoughtful responses to my Article – “The Perils of Judicial Independence: Constitutional Transition and the Turkish Example.” I am in agreement with many of their core points.

In his comments, Professor Ginsburg argues that the role of the Turkish judiciary as guardians against democratic reversal of founding ideological commitments “made it inevitable that the courts would either have to soften their stance or suffer corrective political action.” I agree but would like to distinguish my argument about the requirements of judicial accountability in transitional contexts from the more general debate concerning the balance between independence and accountability for courts in democratic systems. In particular, I am not arguing that the elected branches of government should hold the judiciary directly accountable. Nor do I oppose insulating judicial self-governance from partisan politics. Rather, I argue, self-governance mechanisms that are representative of the judiciary as a whole – not exclusively judges from the highest courts – are an understudied but important feature of institutional design in post-authoritarian transitions. More specifically, I argue that the concept of judicial “independence” should include independence from elite capture when transitioning from the rule of the few to the rule of the many. When mechanisms of judicial self-governance – such as judicial councils that govern appointments, promotions and discipline of judges – are dominated by apex courts, they may entrench a self-perpetuating judicial oligarchy that opposes democratic transition. As an example, I trace how the Turkish judicial council was subject to elite capture, maintaining a hierarchical appointments and promotions system that blocked changes to the composition of the judiciary that might reflect the political, social and economic diversity of the underlying society. The result was consistent judicial opposition to reform initiatives introduced by the AKP government.

Professor Ginsburg refers to recent cases in which the courts have cracked down on government critics as reflecting a worrying trend. I share his concern about the wave of arrests over the last two years that have been directed against journalists, academics, publishers and graduate students for their political opinions, whether in opposition to the governing AKP party’s policies or in support of Kurdish rights. However, the capacity of the government to use the courts in this way reflects continuities between the AKP and prior Turkish governments rather than an embrace of the Iranian example. The use of counterterrorism powers to suppress freedom of speech and association are sadly a long-standing feature of the Turkish state tradition. The spectacle of a former Turkish Chief of the Army General Staff – Ilker Basbug – being prosecuted for terrorism-related charges is something new in Turkey. But the novelty derives neither from the charges nor the politicized use of the courts. Rather, what is new in the Basbug prosecution is that long-standing mechanisms of state repression once wielded to advance the interests of the Turkish military are now being used to prosecute former military officials.
Continue Reading…

VJIL Symposium: Tom Ginsburg Comments on “The Perils of Judicial Independence”

by Tom Ginsburg

[Tom Ginsburg is the Leo Spitz Professor of International Law and Professor of Political Science at the University of Chicago Law School.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

In “The Perils of Judicial Independence: Constitutional Transition and the Turkish Example,” Asli Ü. Bâli provides an important review of recent constitutional developments in Turkey. Turkey has always provided something of a Rohrshach test in global geopolitics, and the dramatic series of constitutional events of the past few years have been no exception. Bâli provides a lucid and contextualized description of these events, which include the rise of the AKP and its survival of a constitutional challenge in 2008; the Constitutional Court’s rejection of an attempt to overturn the headscarf ban in 2008; and the 2010 series of constitutional amendments that changed the composition of the constitutional court and expanded the number of seats. For some, these amendments represent an attack on the judiciary and a threat to Turkish secularism; for others, they are an appropriate institutional recalibration after several years of democratic development. Bâli leans toward the latter view. Her argument is that Turkish constitutionalism is beset by deeply rooted genetic conflicts between high modernist Kemalism and the forces of religion and pluralism identify that Kemalism suppressed.

I am in agreement with Bâli’s basic analytic point that judicial independence is not an unqualified good. The optimal balance between independence and accountability in any society is highly contextual, and will change over time. Furthermore, as Nuno Garoupa and I argued some years ago, the judicialization of politics typically leads to the politicization of the judiciary at some point. In the Turkish case, the very visible role of the courts in defending the founding principles of secularism in the face of the sustained electoral victories of Islamic parties made it inevitable that the courts would either have to soften their stance or suffer corrective political action when those parties finally won. Corrective political action seems now to have occurred. There is no theoretical reason that this dynamic, which has been observed in many democracies both new and old, should be different in Turkey.

Surely the claim that the AKP is undemocratic seems to have little basis. But at the same time, popular support is not the only criteria for a normative evaluation. While it is understandable, and in some ways impressive, that the Erdogan government could successfully take on the military and judiciary in sequence, it now seems to be going a step further to bring the media under its thumb. Recent reports have indicated that some 100 journalists have been jailed on terrorism charges, sometimes simply for articles criticizing the government. Here one must fear that Turkey is learning lessons from its eastern neighbor, Iran, in which the Supreme Leader’s power is facilitated by his formal supervision of the military, judiciary and media. In the long run, Turkey’s democracy may not be best served by a kind of dominant-party model, even if one accepts that the short-term consequences have been positive in many spheres.

VJIL Symposium: Dr. Hootan Shambayati Comments on “The Perils of Judicial Independence”

by Hootan Shambayati

[Dr. Hootan Shambayati is an Assistant Professor, Division of Public Affairs, Florida Gulf Coast University.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

In the wake of the so-called “Arab Spring” of 2011, many commentators from within and without the Arab world have pointed to Turkey as a possible model to guide democratizers in countries like Egypt and Tunisia. Professor Bali’s insightful Article takes this debate a step further by focusing attention on the illiberal nature of the Turkish democracy and raises important questions about judicial independence in a democratizing polity.

Professor Bali finds the roots of Turkey’s illiberalism in the institutionalization of the social engineering projects known as Kemalism that were adopted in the early days of the Republic and have continued until the present. The Turkish political system has relied on guardian institutions, particularly the military and the courts, and an illiberal conceptualization of rights to protect the state-centered civilizing mission against opposing societal forces. Professor Bali welcomes the recent AKP initiated judicial reforms as attempts to liberalize the judicial and the political system and dismisses the critiques as self-interested Kemalist elites trying to safeguard their entrenched privileges. More generally, she raises important questions about the balance between judicial independence and accountability and warns against the tendency to equate an independent judiciary with one that protects a liberal conceptualization of rights.

Most studies of the Turkish judiciary agree that independence in the Turkish context has created a judicial system that sees its primary role as defending the Kemalist state against the society. But, it is this “illiberalism” that makes the Turkish model attractive to Arab political activists. For the Egyptian or Tunisian political activists the promise of the Turkish model is not the immediate creation of a liberal representative democracy but its potential in transforming the society. For the secular forces, the Turkish model protects them against the Islamists and “tames” political Islam, while for the Islamists, the AKP provides an example of how an Islamist party can gain the reins of power and use the institutions of the state to reshape the society through “democratic” means. Whether this image fits the AKP or not is open to debate. For Professor Bali it does not. Nevertheless, the various shades of Islamism and secularism in the Middle East and their foreign supporters see democracy as a transformative project that aims to reshape the Arab/Muslim societies not represent them. It is this transformative goal of the Middle Eastern democracy that makes the Turkish model appealing.
Continue Reading…

VJIL Symposium: Introducing Aslı Ü. Bâli’s “The Perils of Judicial Independence”

by Asli U. Bali

[Aslı Ü. Bâli is Acting Professor of Law at UCLA School of Law.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

I am grateful to Opinio Juris for the opportunity to discuss my Article – “The Perils of Judicial Independence: Constitutional Transition and the Turkish Example.” Here I outline the critique I offer of the “Turkish model” of constitutionalism and the implications of my argument for democratizing transitions such as those currently underway in the Arab world.

Democratizing model or cautionary tale?

Turkey is sometimes invoked as a potential “model” for democratization in countries like Egypt and Tunisia. This article considers the features of the Turkish legal order that have impeded democratic consolidation. In particular, I analyze the role of the Turkish Constitutional Court and arguments about judicial independence in a series of constitutional crises from 2007 to the present. This focus on courts and constitutions is appropriate, I claim, because of the emphasis placed on “rule of law,” constitutionalism and an independent judiciary in the academic literature on democratizing transitions. In the context of the Arab Spring, such prescriptions have served an almost talismanic function – separating, in the eyes of external observers, legitimate calls for democratic change from troubling forms of political upheaval. In Egypt such observers view arguments for managed transition through constitutional reform as appropriate while political transformation through the ballot box is identified with the specter of political Islam. Yet, in the Turkish case, I argue that a strong and independent judiciary and the effort to insulate certain constitutional principles from democratic debate – particularly centered around the meaning of secularism in a Muslim majority country – has served to inhibit democratization and entrench legacies of authoritarianism. Indeed, as a result of the positions taken by traditional political elites through the courts, political Islamists in Turkey have emerged as democratizers and perhaps even (accidental) liberalizers.

Redefining judicial independence

Based on the Turkish case I argue that institutional design prescriptions for democratic transitions, including those related to judicial independence, should be revisited. In particular, the meaning of “judicial independence” should be understood differently in the context of a transition from minority rule to majority rule (through democratization). At present, judicial independence is conceived primarily in terms of separation of powers; while accompanied by the idea of “checks and balances,” the emphasis is on maintaining the autonomy of the courts rather than on subjecting them to political checks. Ran Hirschl has argued that this notion of judicial independence is particularly well suited to enabling authoritarian elites to manage transitional processes. The Turkish conceptions of constitutionalism and judicial independence exemplify the risk that constitutional provisions may serve to insulate elite privileges from democratic reversal through the courts. Through my analysis of recent Turkish constitutional crises – and their origins in institutional legacies from the founding of the republic – I argue that in cases of democratic transition, the best definition of judicial independence would be independence from elite capture rather than independence from the elected branches of government.
Continue Reading…

Weekday News Wrap: Friday, April 13, 2012

by Jessica Dorsey

Doug Cassel’s Reply to Kevin Jon Heller: Who Bought What?

by Doug Cassel

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

Kevin Jon Heller’s reply to my post on the fraudulent Ecuadorian judgment against Chevron is entitled, “Chevron’s Buyer’s Remorse.” Heller avers that there is “one reason, and one reason only, that this case was heard before an Ecuadorian court: because that is what Chevron wanted.”

Actually, that is what Texaco wanted. Texaco’s motion and affidavits were filed, and its forum non conveniens motion granted, before Chevron acquired Texaco in 2001. Litigating in the 1990’s, Texaco had no reason to foresee, years later, the arbitrary removal of 27 justices of Ecuador’s Supreme Court in 2004, the unwarranted removal of nine judges of the Constitutional Court in 2007, or President Correa’s declaration of a state of “judicial emergency” in 2011.

More important, Texaco prudently agreed only to be sued, not defrauded, in Ecuador. It reserved the right to contest the validity of any judgment (1) fraudulently obtained, (2) by courts lacking impartiality, or (3) in violation of due process of law. All three reservations apply to the judgment against Chevron.

Heller relies on a “lengthy and thoroughly footnoted” letter from plaintiffs’ attorneys. Length and footnotes do not guarantee accuracy. For the reasons stated in my (also lengthy and footnoted) reply, plaintiffs’ letter is inaccurate, not only on this point, but pervasively. I encourage interested readers to review both letters, and to decide for themselves whether the partially purloined stack of paper, purportedly penned by the Ecuadorian judge, deserves to be called a “judgment.”

Two ASIL Calls for Papers Closing Next Week!

by An Hertogen

Two calls for papers for ASIL events are closing on April 15 and April 20

Second Annual ASIL Research Forum

October 20-21, 2012, Athens, GA

The American Society of International Law calls for submissions of scholarly paper proposals for the ASIL Research Forum to be held at the University of Georgia School of Law on October 20-21, 2012.

The Research Forum, a Society initiative introduced in 2011, aims to provide a setting for the presentation and focused discussion of works-in-progress by Society members. All ASIL members are invited to attend the Forum, whether presenting a paper or not.

Interested participants should submit an abstract (no more than 500 words in length) summarizing the scholarly paper to be presented at the Forum. Papers can be on any topic related to international and transnational law and should be unpublished (for purposes of the call, publication to an electronic database such as SSRN is not considered publication). Interdisciplinary projects, empirical studies, and jointly authored papers are welcome. Member proposals should be submitted online here by April 15.

Proposals will include 1) the name, institutional affiliation, professional position, and contact information for the author(s), and 2) an abstract. Review of the abstracts will be blind, and therefore abstracts should not include any identifying information about the author. Abstracts containing identifying information will not be reviewed. Proposals will be vetted by the Research Forum Committee with selections to be announced by July 15

At present, it is the intent of the Research Forum Committee to organize the selected paper proposals around common issues, themes, and approaches. Discussants, who will comment on the papers, will be assigned to each cluster of papers. All authors will be required to submit a draft paper four weeks before the Research Forum. The expectation is that drafts will be posted on the Research Forum website.

The 2012 ASIL Research Forum Committee:

Laura Dickinson (George Washington), Co-Chair

Timothy Meyer (Georgia), Co-Chair

Jose Alvarez (NYU)

Laurence Helfer (Duke)

Hari Osofsky (Minnesota)

Kal Raustiala (UCLA)

David Zaring (Wharton)


International Legal Theory Interest Group: “Transatlantic Debates in International Legal Theory”

September 27-28, 2012, Cambridge, UK

ASIL’s International Legal Theory Interest Group, in partnership with the European Society of International Law Interest Group on International Legal Theory, will hold a joint works-in-progress workshop at the University of Cambridge’s Lauterpacht Centre for International Law in September 2012. The workshop’s theme is “Transatlantic Debates in International Legal Theory.” Up to 12 papers will be selected for presentation. Interested participants should submit an abstract (1,000 words maximum) summarizing the ideas they propose to develop for presentation at the workshop.

The deadline for submission of proposals is April 20, 2012.

Click here for full details.

VJIL Symposium: Sungjoon Cho Answers to Kelly, Shaffer, and Trachtman

by Sungjoon Cho

[Sungjoon Cho is currently a Visiting Professor of Law at Northwestern University School of Law. He is also Professor of Law and Norman and Edna Freehling Scholar, Chicago-Kent College of Law.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

First of all, I would like to thank Profs. Shaffer, Trachtman and Kelly for their valuable comments my Article, “Beyond Rationality: A Sociological Construction of the World Trade Organization.” I feel fortunate to have these rich and provocative exchanges on this important issue.

Let me start my response to their comments by reiterating that I do not intend to question the merits of Profs. Shaffer and Trachtman’s substantive arguments. The authors’ institutional scrutiny is analytically clear, rhetorically powerful, and offers a simple yet powerful heuristic on the WTO and its affairs.

My critique centers on their methodological framework, which many International Relations (IR) scholars, such as Robert Keohane and Alex Wendt, would categorize as “rationalism.” Profs. Shaffer and Trachtman basically draw on the “comparative institutional analysis” developed by Neil Komesar, which focuses on the availability of alternative choices in understanding the development of a particular institution. In general, this approach belongs to the school of “new institutional economics” espoused by Douglas North and Oliver Williamson. According to this theory, all institutions are invariably accompanied by transaction costs and therefore can be replaced by alternatives. In the same vein, the WTO is a welfare-maximizing contract within this theoretical framework (Shaffer & Trachtman, p. 111).

As the authors might agree, no framework is perfect and rationalism is no exception. Rationalism inevitably leaves some paradigmatic blind spots, which tend to obscure a more complete understanding of the WTO. I maintain that we need to identify those blind spots, and that an alternative framework, such as the one I propose here, could brighten our picture of the WTO. I do not argue for “taking sides.” In fact, I also employed a law and economics methodology in another paper addressing a different issue.

Granted, Profs. Shaffer and Trachtman do acknowledge the value of ideational (non-rationalist) parameters, such as “ideas” and “community.” In fact, their mission statement explicitly aims for the exploration of a “law and society” perspective. Nonetheless, their work gives only passing attention to social dynamics. It does not appear that their analysis seriously engages the social, or sociological, aspects of the decision-making process. For example, when they mentioned the “interpretive community” they could have engaged in substantive discussions that involve judicial internalization or the role of interlocutors and norm sponsors. In contrast, those “choices” correspond to consequentialist considerations informed by efficiency concerns. Therefore, it is hard to accept that they view WTO norms as a discursive device powered by the WTO members’ shared understandings or behavioral expectations.
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VJIL Symposium: Gregory Shaffer and Joel Trachtman Comment on Sungjoon Cho’s “Beyond Rationality”

by Joel P. Trachtman

[Gregory Shaffer is the Melvin C. Steen Professor of Law at the University of Minnesota Law School. Joel P. Trachtman is the Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

We are grateful to Professor Cho for writing this Article (Beyond Rationality: A Sociological Construction of the World Trade Organization) as a critique of our earlier Article (Interpretation and Institutional Choice at the WTO). Our article examined the choices in WTO interpretation in terms of their institutional implications, which in turn affect social welfare and participation in social decision-making. Cho’s main point is that our approach is “blindsided” by failing to understand WTO rules and interpretations from the standpoint of a discourse-based constructivist or sociological approach. He contends that norms at the WTO arise from discourse, and that actors judge the behavior of others and formulate their own behavior on the basis of these constantly evolving norms.

Cho’s article, in our view, does not engage with our central focus — which is to increase understanding of what is at stake in WTO drafting and interpretation in terms of the implications for not only social welfare, but also (and relatedly) for participation in social decision-making processes. We did not aim with this article to take sides in the rationalist-constructivist debate. We rather believe that our framework is open to addressing the role of both ideas and interests, and is by no means “textualist determinist” (p. 325) and “rationally predetermined” as Cho contends (pp. 325, 334, 347, 353). Readers of our article and users of our analytic framework can decide for themselves.

To turn to Cho’s sociological approach, it seems to imagine a closed discursive community endogenously or autopoetically generating norms. Our approach highlights instead the exogenous consequences of interpretive choices, however those interpretive choices are informed, including by norms developed interactively, or by interests and perspectives that are not endogeneous to the “WTO community.”

We question what it could possibly mean for welfare (however one views it) for the world to be structured as Cho conceives of it, as a place where international organizations such as the WTO have an internal discourse that determines norms which in turn determine behavior. How would these norms be judged? Cho argues for some independent “values”-based metric, but seems to fail to recognize that different individuals have different values, perspectives, and priorities; that different states represent different constituencies; and that what people value and prioritize affects welfare. Our framework, in contrast, makes clear how interpretive choices allocate authority to different institutional decision-making processes, which mediate expressions of diverse values and priorities in different ways (each of them imperfect, but some better than others in different contexts).
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VJIL Symposium: Doctor, Heal Thyself – A Commentary on Professor Sungjoon Cho’s Critique of Shaffer and Trachtman

by Claire Kelly

[Claire Kelly is a Professor of Law at Brooklyn Law School.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

Thank you very much to Opinio Juris for this opportunity to comment on this set of Articles recently published in the Virginia Journal of International Law.

To address rationalism’s failings, Professor Cho prescribes a constructivist or sociological lens in his Article, “Beyond Rationality: A Sociological Construction of the World Trade Organization.” While I wholeheartedly agree with Professor Cho’s desire to supplement the rationalist account with a sociological perspective, I would challenge him to address the same normative biases of powerful countries in that sociological framework. Indeed, concerns regarding “participation, transparency, accountability, and legitimacy” are perhaps more pronounced in the sociological account. It is not clear to me that the sociological account adequately addresses them either.

In response to Gregory Shaffer and Joel Trachtman’s “Interpretation and Institutional Choice at the WTO,” Professor Sungjoon Cho aptly reminds us to consider the sociological framework in international law as it sheds light on “institutional evolution and development concerns” largely overlooked by the rationalist framework. Professor Cho makes several important points. First, rationalism like any theory is not perfect. It cannot explain everything. Although it attempts to predict what rational actors might do, it can overlook what real actors “whose rationality is in fact bounded” do. Second, rationalism’s preference for textualist interpretation undervalues the possibility of endogenous change. Third, the rationalist lens fails to account for the normative biases inherent in a system where powerful countries bargain with less powerful ones. This normative blind spot along with normative concerns of “participation, transparency, accountability, and legitimacy” are given little attention by the rationalist framework.

Sociological communities can indeed “change what WTO members think of themselves and the nature of their perceived interests through “frames of reference.” But those frames of reference are dominated by the powerful and developed states. So while the constructivist framework is useful; it too has blind spots. The same questions of transparency, accountability, participation and legitimacy arise when one looks through a constructivist lens as when one looks through a rationalist one. Those questions are all the more important in this framing because the discursive dimensions of the WTO or any other institutional setting are often hidden from sight. Admittedly, the constructivist account acknowledges that the social discourse is symbiotic. No actor is immune from the influence of others. But one must suspect that some actors are more influential than others in constructing social norms.
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VJIL Symposium: Introducing Sungjoon Cho’s “Beyond Rationality: A Sociological Construction of the World Trade Organization” – A Critique of “Interpretation and Institutional Choice at the WTO” by Professors Shaffer and Trachtman

by Sungjoon Cho

[Sungjoon Cho is currently a Visiting Professor of Law at Northwestern University School of Law. He is also Professor of Law and Norman and Edna Freehling Scholar, Chicago-Kent College of Law.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

Thank you to Opinio Juris and the Virginia Journal of International Law (VJIL) for putting together this discussion on my recent VJIL Article – “Beyond Rationality: A Sociological Construction of the World Trade Organization,” which critiques the approach taken by Professor Gregory Shaffer and Professor Joel P. Trachtman in their VJIL Article, “Interpretation and Institutional Choice at the WTO.”

The dominant paradigm under which one can comprehend an international organization, such as the World Trade Organization (WTO), has been “rationalism.” Under a rationalist framework, the WTO is an instrument (institutional arrangement) that its creators (states) programmed ex ante to promote freer trade by facilitating interstate cooperation, reducing transaction costs and stabilizing their expectation. In a nutshell, all that the WTO is about and it does is somehow reduced to its members’ (rational) “choice” informed by material interests, such as power and utilities. Rationalism, which connotes both neorealism and neoliberal institutionalism, provides a powerful heuristic of the operation of the WTO. Its characteristic parsimony has also generated a number of excellent research projects, including the one provided by Professors Joel Trachtman and Gregory Shaffer.

Nonetheless, rationalism does not exhaust perspectives on the WTO. States are not mere sophisticated machines, analogous to the Architect in the movie Matrix. They are also “social” actors that “interpret,” not necessarily calculate, others’ behaviors and mold their own based on their interpretation. Their actions are in fact deeply embedded in their socio-cultural surroundings, including the institutional sphere given by the WTO. Under this sociological (“constructivist” under the International Relations theory) framework, the WTO is defined not as a contract (Gesellschaft), but as a “community” (Gemeinschaft). Within the WTO’s community, its members convey their thoughts and arguments (ideas) through an iterative and ritualized process (discourse) and eventually institutionalize those ideas as norms. These two different frameworks – rationalism and constructivism – may generate two different explanations on the WTO and its operation. For example, under the conventional (rationalist) framework, the recent failure of the Doha (Development) Round is simply a deal fell apart. Under the constructivist framework, however, one might say that the cause of “development” never morphed into the WTO’s social structure based on which WTO members self-evaluate their particular behaviors as appropriate or not.

Finally, a word of caution. I am not arguing that the new sociological paradigm should supplant the rationalist approach. Nor do I suggest that the blind spots of the rationalist framework render it obsolete. No paradigm is perfect. What I attempt to do is to contribute to a more complete understanding of the WTO by providing an alternative paradigm and narrative. Notably, it is also important to identify a zone of convergence where the two paradigms may harmonize.

Weekday News Wrap: Thursday, April 12, 2012

by Jessica Dorsey

The Al-Nashiri Spectacle

by Kevin Jon Heller

The bankruptcy of the U.S. military-commissions system is currently on full display in the trial of Abd al-Rahim Al-Nashiri.  Readers who can stomach the spectacle of a tortured detainee being prosecuted for imaginary war crimes committed at a time when there was no armed conflict between the U.S. and al-Qaeda anywhere in the world can find excellent coverage of the pre-trial motions at Lawfare.

Oh, He Meant Progressives…

by Kevin Jon Heller

Republican congressman Allan West channeled Joe McCarthy yesterday, telling supporters at a rally that “he’s heard” as many as 80 Democratic representatives in the House are members of the Communist Party.  When asked to clarify his remarks, he wouldn’t name names — but he said he was referring to the Progressive Caucus.  No problem, then.

My Compilation of On-line Treaty Databases

by Duncan Hollis

In 1973, Hans Blix and Jirina Emerson edited the Treaty Maker’s Handbook to help newly emerging States appreciate, post-decolonization, the intricacies of treaty-making as a matter of both domestic and international law. One of the work’s lasting legacies was the inclusion of sample provisions drawn from existing treaties on various treaty topics such as participation, entry into force, reservations, and amendments. The volume became a staple among treaty negotiators, and continues to be used today even as it becomes increasingly dated.

With due credit given to Blix and Emerson, one of the key features of my forthcoming book — The Oxford Guide to Treaties is a new set of treaty clauses. The volume includes 350 clauses taken from an array of existing treaties on 23 different treaty issues, such as the various ways treaty clauses may define a treaty’s object and purpose, delineate territorial and extraterritorial application, identify a treaty’s relationship to other treaties, or authorize simplified amendment procedures.

I found some of these clauses the old fashioned way, using multi-volume hard-bound sets of books like those edited by Bevans or UST (the US Treaty Series). But, far more often, I did my research on-line. As a result, I’ve now become a bit of a connoisseur of treaty databases. For years, a new major, multilateral treaty meant a new web-site dedicated to that treaty, which invariably includes its text and other relevant documentation (Final Acts, Records of the Meeting of the Parties, etc.). Bilateral treaties have long been much harder to track down. Today, however, States and International Organizations (IOs) are increasingly making all their treaty commitments publicly available on the Internet. In some cases, these treaties are organized in multiple ways, not just chronologically, but also by party, specific treaty features, or even, in a few cases, with full-text search capabilities. As a result, almost every treaty now ends up on a web-site somewhere. This development is a welcome one for both practitioners and scholars. Practitioners can now easily access texts that may implement the relative rights or duties of their clients (whether States, IOs, corporations or individuals) while scholars can get a better sense of the full panoply of modern treaty practice, whether for purposes of isolating specific practices or testing propositions as part of the new empiricism in international law.

In a future post, I plan to offer my unabashed (but admittedly unscientific) review of some of the major treaty databases, including the good, the bad, and (sometimes) the ugly. For now, I wanted to pass along a listing of public treaty databases, figuring folks might appreciate having them all collected in one locale.  I’ve not listed databases where you have to pay to get the treaty text (I’m looking at you IMO) because I question why a treaty text negotiated among nation states cannot be publicly available at least in some form on-line.  I’ve also limited my listing to those sites in English, not because they’re better, but because my facility in non-English texts is less than ideal.  I would, however, welcome comments on additional databases with which readers are familiar in the hopes that this post might become a common repository for those interested in doing treaty research of one form or another. Following the jump, I’ve listed alphabetically (and with hyperlinks!) 24 treaty databases readers may wish to consider visiting in their future practice or research:

VJIL Symposium: Gregory Shaffer and Joel Trachtman Answer to Brewster, Howse, and Pauwelyn

by Joel P. Trachtman

[Gregory Shaffer is the Melvin C. Steen Professor of Law at the University of Minnesota Law School. Joel P. Trachtman is the Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

We were delighted to learn that Profs. Brewster, Howse, and Pauwelyn had agreed to comment on our article, Interpretation and Institutional Choice at the WTO, on Opinio Juris. Their comments add to our understanding of the important question of how drafting and interpretive choices made by treaty-writers and judges can be understood in terms of allocation of authority. Rachel Brewster adds some important dimensions to this study, asking whether we can identify pro-liberalization or majoritarian impulses in Appellate Body decision-making. Rob Howse illuminates these questions by noting that the Appellate Body seems determined to resist pressure from other branches of the WTO. Howse also highlights the delicate and evolving line that the Appellate Body seems to tread between referring to non-WTO international law in circumstances where it may be jurisprudentially questionable to do so, and avoiding the challenge to the legitimacy of the WTO legal system that might arise if the Appellate Body were to ignore non-WTO international law in its decision-making.

The commentators capture our aim to provide an analytic framework for helping lawyers, judges, scholars, students, and policy makers understand and evaluate institutional choices in the drafting and interpretation of the WTO agreements. These choices have welfare and distributive consequences, which are mediated by how the choices delegate and allocate authority to different social decision-making processes. In the article, we apply the framework both to choices in the drafting of the WTO agreements and their interpretation in case law.

Our goal in writing the article was to provide an analytical template in order to highlight the ways in which different drafting and interpretive choices may be understood in terms of their allocation of decision-making to different institutions, including the market, ultimately affecting social welfare and participation.

Some lawyers and legal scholars may feel uncomfortable with the social science convention that positive assessment is not to be influenced by normative analysis, but is rather to inform it. In our article, we follow this convention and avoid providing our own normative assessment of the interpretive choices made by treaty-writers and judges. Our comparative institutional analysis is rather intended to illuminate the consequences of choice by providing a template for analysis. For example, interpretive choices include the decision to limit the role of non-WTO law in WTO dispute settlement, or to defer to certain standard-setting bodies in WTO dispute settlement. We do not engage in empirical analysis of the impact of these choices in particular cases. Rather, we draw suggestive links between these choices and dependent variables that can be understood as normative desiderata: principally, welfare enhancement and participation in social decision-making. We explicitly note that there are tradeoffs in these institutional choices, and that the tradeoffs must be evaluated both generally and on a case-by-case, contextually-situated, basis.
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VJIL Symposium: Joost Pauwelyn Comments on “Interpretation and Institutional Choice at the WTO”

by Joost Pauwelyn

[Joost Pauwelyn is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva, Switzerland.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

Thank you to Opinio Juris and the Virginia Journal of International Law for inviting me to participate.

This Article, by Greg Shaffer and Joel Trachtman, makes the important point that choices in treaty drafting and judicial interpretation allocate authority. For example, a choice for rules (instead of standards) or reference to non-WTO norms and expert advice (instead of WTO law only) allocates authority, respectively, to negotiators (instead of the judiciary) and to other bodies or experts (instead of the WTO). This is clear and convincing. From there, however, the authors make an extra and less convincing step: after (descriptively) linking choice to authority they then (normatively) link type of authority to welfare and participation levels arguing, for example, that treaty drafters (setting rules) can be presumed to “maximize welfare” and offer more “transparency, accountability, and legitimacy” than the judiciary (applying standards) (p. 111). A similar hierarchy is presumed putting the WTO above standard-setting bodies such as Codex or the ISO, on the view that the latter “evade the need for consensus within the WTO” (p. 113) and are “subject to capture by certain interests” (p. 114).

I find it extremely difficult to make such generalizations about which type of authority is “better” in welfare and participation terms (Instead of gauging the consequences of interpretative choices it may be more productive to think about the underlying reasons for such choices, as I tried to do here with my co-author Manfred Elsig).

Today’s reality is that authority flows from an increasing diversity of sources (national & international; public & private; political, judicial & expertise etc.). Unless one makes the broadest of assumptions (e.g., “if we ignore strategic problems and asymmetric allocation of power”, at p. 111; elsewhere, equating all of WTO law to trade liberalization and on that basis implying that the WTO is more “efficient”, p. 132), it no longer makes sense to presume that one source is, by definition, “better” than another (e.g. that negotiators or the WTO do a “better job” than judges, experts or other institutions). It all depends on the task at hand (for some things politicians are better; for others, judges, experts or the market) and the detailed set up of the authority in question (how does it operate; who is included; what is its reputation and support?), rather than its type. Nor do we have to make a binary choice between this or that authority: the WTO can refer to outside standards yet at the same time exercise judicial control over those standards (as the recent Panel on US – Tuna Label did, checking the inclusiveness and transparency of the standard); it can refer to scientific or economic experts for factual matters, defer to national authorities for appropriate levels of protection but leave decisions on legal criteria in the hands of WTO panels.
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VJIL Symposium: Robert Howse Comments on “Interpretation and Institutional Choice at the WTO”

by Robert Howse

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

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

The Article by Shaffer and Trachtman is a tour de force: it identifies and explains many of the most important interpretative choices that panels and the Appellate Body have made in adjudicating disputes under WTO law, and speculates on the implications for the WTO as an institution, its economic and political economy functions, and for the relation between international law and politics, both domestic and transnational. I assigned this article in one of the introductory classes for my advanced course in WTO law at NYU, because it canvassed so many of the issues that students need to think about when they are consider the WTO case law as a jurisprudence.

One of the issues that the authors discuss, which intersects with my own scholarship about the WTO and about fragmentation in international law more generally, is the role of non-WTO international law in WTO dispute settlement. Here the authors place considerable emphasis on the EC-Biotech case, where the panel made a highly dubious interpretative choice to exclude non-WTO international law relevant to to the regulation of GMOs from its consideration of the meaning of the WTO norms at issue. The authors thus tend to the conclusion that non-WTO has been marginalized in WTO dispute settlement, with possibly serious consequences for the legitimacy of the system; as they note, on such a scenario, there is an effective assertion of the supremacy of WTO rules or other international law norms that may be applicable to the matter at hand. Can such a supremacy be sustained legitimately from the perspective of the international legal system as a whole?

My sense is that the Appellate Body is cautiously distancing itself from the narrow approach in EC-Biotech. In EC-Aircraft, the Appellate Body, seemingly influenced by the ILC Working Group on Fragmentation Report, suggested that considerations of systemic integration in international law might suggest a fuller embrace of non-WTO international law in appropriate cases, even where not all WTO Members are parties to the non-WTO international agreement. In the China-AD/CVD case, the AB based its interpretation of an important concept in the WTO Subsides and Countervailing Measures Agreement (that of a “public body”) almost entirely upon the ILC Articles on State Responsibility. I sense that the AB has returned the orientation of the jurisprudence to the greater openness to non-WTO international law that had been displayed much earlier in the case of Shrimp/Turtle, where the AB brought a number of non-WTO international legal instruments into its adjudication of that dispute, particular those concerned with biodiversity.

A very shrewd observation of the authors is that, in a number of doctrinal areas, the AB has chosen approaches that entail judicial balancing, or case-by-case weighing of multiple factors or considerations, to “bright lines.” They are right that such an interpretative choice tends to be very (self-) empowering of the judicial branch. It is also a way of managing political conflict or disagreement in a fashion that may help preserve the legitimacy of the judiciary, since “bright lines” can often appear to favor systematically one value or one constituency over another in an area of normative contestation (the authors discuss the now clearly rejected (Shrimp/Turtle) “bright line” that the unadopted Tuna/Dolphin panels invented on PPMs, which systematically excluded a whole range of activist environmental strategies from consistency with WTO law): here we should consider Cass Sunstein’s thinking about “one case at a time.”
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CIA General Counsel Speech on Hypothetical Uses of Force

by Deborah Pearlstein

The speech delivered by CIA General Counsel Stephen Preston at Harvard yesterday is important and illuminating, and I agree with Ken the administration should be commended for it. But wow does it raise some troubling questions about how the CIA understands the legal authority for and constraints on its drone operations. There’s too much to unpack in it for one blog post, and I’d urge those who follow these interests to read it for themselves. Meantime, I’ll start with two issues: (1) the CIA’s understanding of its domestic authority to use force; (2) the CIA’s understanding of whether/how international law constrains its actions.

Domestic authority. Preston correctly explains that the CIA must have some source of authority under domestic U.S. law to carry out “hypothetical” activities involving the use of force abroad. In this inquiry, of course, international law is irrelevant. And I don’t read Preston to suggest that international law can give the U.S. government powers it does not otherwise possess under our own Constitution and laws. So what gives the CIA its authority to carry out drone strikes? Here’s Preston:

“First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law.

In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding.”

Several points. Preston leads with – giving the impression that it does not only some but significant lifting in authorizing CIA actions – the President’s power under Article II of the Constitution. The non-reliance on Article II as an independent font of authority in U.S. counterterrorism operations – as opposed to statutory authorizations with specific limits – has been one of the central ways in which the Obama Administration has distinguished itself from the Bush Administration, which claimed sweeping authorities under Article II. So seeing it feature prominently here is striking. There are, important to emphasize, important differences between this invocation of Art. II power and Bush’s. Preston cites the President’s Art. II power to, as the framers put it, “repel sudden attacks.” There are few who would doubt the existence of such a power, and the Supreme Court has recognized it in various ways back to the Civil War era Prize Cases. This is in principle a narrower claim of authority under Article II than the (Bush) claim that Article II generally gives the President the power to detain people, interrogate them, and tap their phones as long as we’re in a state of armed conflict. How much narrower? Narrower at all? It depends a heck of a lot on what counts as “an imminent threat of violent attack.” How imminent does it have to be? Something more clear and specific than the general state of threat we face from, e.g., Al Qaeda? If a generalized threat from a group that’s attacked us at some point in the past is enough, then I confess I’m not sure how to distinguish this from the Bush-era understanding of Art. II.

Presumably Preston fronts the Art. II authority in part because CIA thinks that the statutory powers on the books don’t suffice to authorize all of the uses of force the CIA has carried out under its drone program. Indeed, the list of powers, Constitutional and statutory, is framed strangely. Preston says CIA first would make sure the action is authorized by the Constitution. And then notes, in quite different terms, “also” or “in addition” that statutory authority might exist. As if CIA doesn’t actually see the statutes as independent sources of authority. Do we take from this that CIA sees all of its use of force authority as coming from Article II, and the statutes on the books are just regulations, not themselves relevant sources of authority?

In particular, Preston doesn’t mention the 2001 AUMF expressly (which all 3 branches of government have interpreted as authorizing a global war against Al Qaeda). I can imagine 2 reasons why he might not want to get into the AUMF. One, the force authorized by that statute is limited to the groups who attacked us on 9/11, and some of the CIA’s targeting operations (it appears from press reports) have been aimed at individuals or groups who are only very arguably connected to those attacks. Is Al Shabab, for example, born as a domestic Somali insurgent group, really one of the organizations Congress meant to reach in its 2001 AUMF? Dicey to claim so. But we seem to be targeting some of their members anyway. Two, the administration has taken the position in court and elsewhere that international law, including the law of armed conflict, should inform the interpretation of (and, it would seem, constrain the use of) what force is authorized under the AUMF. But the CIA seems to have a different view of the applicability of LOAC, on which more below. So I can see why they wouldn’t want to rely on AUMF if they can help it. Which brings us to…

International law. Is there anything in international law – law of war or customary international law – that the CIA thinks it is bound to comply with as a matter of law (as opposed to, say, sensible policy or practice)? My read of this speech is that the answer is no. I would be very happy to be contradicted. The key sentences are described as a question of “compliance in execution with reference to international law principles.” And I’m not sure what the word “principles” is doing in there except to soften the notion that many of the relevant rules that might apply are simply law – indeed, when it comes to treaties the United States has signed and ratified, “supreme law of the land” under the Constitution. Here’s the relevant paragraph in its entirety:

“Here, the Agency would implement its authorities in a manner consistent with the four basic principles in the law of armed conflict governing the use of force: Necessity, Distinction, Proportionality, and Humanity. Great care would be taken in the planning and execution of actions to satisfy these four principles and, in the process, to minimize civilian casualties.”

If the past decade has taught us anything, I’d kinda think it’s this: Pursuing a policy “in a manner consistent with” the law is not the same as pursuing a policy that is bound by the law. So what’s going on? And now we enter the realm of pure speculation, but I guess that’s what blogs are for. So here’s what I imagine. I imagine that the CIA is targeting two kinds of people: (1) those it believes are participating in the armed conflict the United States has defined (i.e. a war against Al Qaeda and associated forces), and (2) those who are not plausibly understood as part of that armed conflict.

If the United States is targeting people in category (1), we are bound, as a matter of law, to comply with the law of armed conflict, which of course include, as a matter of law, the Geneva Conventions containing the rules Preston lists. We may well be complying with those rules – both the military and the CIA – that is, for example, not violating rules of proportionality in targeting. But even if we are complying with those rules – and boy do I wonder if and to what extent the CIA agents are trained in them – if agents of the CIA are pulling the trigger, I would think they may then be subject to criminal prosecution by domestic or foreign (or, if a tribunal with jurisdiction came to exist, international) courts for unlawful acts of violence they commit as unprivileged belligerents. CIA civilians are not members of our armed forces, and do not otherwise (as far as I know) meet the criteria under GCIII, Article 4 to lawfully participate in hostilities. So I can see why the CIA might be loath to acknowledge the applicability of these rules as law. But apply as law they do.

As a matter of international law – specifically, the UN Charter, to which we are a party, and which Preston cites – the United States may not lawfully target people in category (2) (i.e. those not part of our already quite broad armed conflict) unless it is exercising the “inherent right of individual or collective self-defence if an armed attack occurs …, until the Security Council has taken measures necessary to maintain international peace and security.” In the clearest summation of what the United States thinks that means that I’ve seen of late, Preston says that right includes, “for example, [where] the United States has already been attacked, and its adversary has repeatedly sought to attack since then and is actively plotting to attack again, then the United States is entitled as a matter of national self-defense to use force to disrupt and prevent future attacks.” Now there’s a ton to say solely on the question of whether this is a fair interpretation of the right of self-defense. But let’s assume for the moment it is. The rules that govern the exercise of that use of force in self-defense – i.e. how much force can you use, against whom, under what circumstances, etc. – are not only “principles.” They are customary international law, even by, I’d long thought, the estimation of our own government. So why not just say, at the very least, the CIA is bound by the customary international law of “Necessity, Distinction, Proportionality, and Humanity” governing the use of force? On this point, I have reached the limit of my imagination.

VJIL Symposium: Rachel Brewster Comments on “Interpretation and Institutional Choice at the WTO”

by Rachel Brewster

[Rachel Brewster is an Assistant Professor of Law at Harvard Law School.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

I have the pleasure of commenting on Gregory Shaffer and Joel Trachtman’s innovative and important article, “Interpretation and Institutional Choice at the WTO,” recently published in the Virginia Journal of International Law. The authors present an analytical framework for assessing the interpretative choices made by treaty drafters and the WTO judicial bodies based on social welfare and participatory values. This framework provides international law scholars with a comprehensive overview of the different forms by which international law can be established (the drafting stage) and the various methods by which the law can be understood and applied (the interpretation stage). By integrating the drafting and the interpretation processes, the authors address important questions in international law concerning the tradeoffs treaty drafters consider, how specific texts like the WTO Agreements relate with other international laws and institutions, and the consequences of different approaches to treaty interpretation. The article is of great interest to international legal scholars and also sociologists, economists, international relations theorists, and policymakers.

In this short comment, I want to highlight one point that I particularly appreciate in the article and want to explore further. It is the relationship between the drafting text and the interpretative methods of the Appellate Body. One of the few places that the treaty drafters were explicit about the interpretative methods that WTO panels and the Appellate Body should use was in the Anti-Dumping Agreement. That interpretative rule requires deference to national government actions when the action is within a “permissible interpretation” of the Agreement. As the authors note, several commentators believe that the Appellate Body has not been constrained by this rule and has adopted a more exacting substantive review process than the drafters intended. Indeed, this issue has raised the question of whether Appellate Body rulings have precedential status for subsequent WTO panels, because panelists have disagreed with the Appellate Body’s interpretation of the appropriate standard and failed to apply the Appellate Body’s rule.

This issue seems to be an interesting one for the authors’ framework because it raises several questions. First, what drives Appellate Body decision-making? As the authors discuss, the possibility of a legislative veto is relatively low because of the reverse consensus rule and the infrequency of new multilateral agreements (although the Appellate Body selection process may remain influential). As a result, the interpretative approach of the Appellate Body (Part III of the Article) is particularly important to international law scholars and international relations theorists who question what judges will do with policy discretion in treaty implementation.
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VJIL Symposium: Introducing “Interpretation and Institutional Choice at the WTO”

by Joel P. Trachtman

[Gregory Shaffer is the Melvin C. Steen Professor of Law at the University of Minnesota Law School. Joel P. Trachtman is the Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

First, we would like to thank the Virginia Journal of International Law for inviting us to participate in this online discussion and Opinio Juris for hosting this discussion on our recent Article, “Interpretation and Institutional Choice at the WTO.”

Our article develops a new framework for understanding the drafting and interpretation of the agreements of the WTO, based on comparative institutional analysis. Our aim is to provide a better means for describing and assessing the consequences of choices in treaty drafting and interpretation. Both treaty drafting and judicial interpretation implicate a range of interacting social decision-making processes, including domestic, regional, and international political, administrative, judicial, and market processes — which we collectively refer to as institutions. Our framework focuses attention on the way that choices among alternative institutions implicate different social decision-making processes, thereby affecting participation and welfare. We draw on specific examples from WTO case law to illustrate our framework. While our article focuses on the WTO, the framework that we develop has general relevance for understanding the interpretation of international and domestic legal texts from “law and economics” and “law and society” perspectives. It builds on work by Grief, Komesar, North and Williamson. We develop further the comparative institutional analysis suggested by these and other authors.

Like any dispute settlement body confronting a legal text, WTO panels and the Appellate Body have choices in applying the text to particular factual scenarios that are not specifically addressed by the text. More than one WTO provision or WTO agreement may apply to the factual situation, whether the provisions are drafted as fairly precise rules, more open-ended standards, or exceptions. The resolution of these interpretive arguments has important consequences, not only regarding who wins or loses a particular case, but also regarding broader systemic issues of domestic and international policy.
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Weekday News Wrap: Wednesday, April 11, 2012

by Jessica Dorsey

Quote of the Day

by Kevin Jon Heller

In honor of Ozzie Guillen, the manager of the Miami Marlins, who was forced to apologize today to Miami’s Cuban-American community for saying that he admired Fidel Castro’s ability to avoid being assassinated by the U.S. for five decades, who said the following?

I believe that there is no country in the world including any and all the countries under colonial domination, where economic colonization, humiliation and exploitation were worse than in Cuba, in part owing to my country’s policies during the Batista regime. I approved the proclamation which Fidel Castro made in the Sierra Maestra, when he justifiably called for justice and especially yearned to rid Cuba of corruption. I will even go further: to some extent it is as though Batista was the incarnation of a number of sins on the part of the United States. Now we shall have to pay for those sins. In the matter of the Batista regime, I am in agreement with the first Cuban revolutionaries. That is perfectly clear.

Click through for the answer.

CIA General Counsel Speech at Harvard Law School

by Kenneth Anderson

I will post analytically about this when I get a moment, but the General Counsel to the CIA, Stephen Preston, delivered an address today at Harvard Law School on the CIA and the Rule of Law.  Lawfare has posted up the full text, but here is a bit of the introduction.  I’ll come back to comment for real later, but I want to commend Mr. Preston for having looking for ways in which the senior lawyer(s) of the Agency can say something publicly about their work and the legal framework in which they approach things that are sometimes genuinely secret, sometimes plausibly, implausibly or, as I mischievously remarked in a panel last week, “preposterously plausible.”

There are reasons for these gradations – particularly, consent for US operations in a country might well be secret and subject to some level of deniability.  But they make it difficult for CIA officials and lawyers even to acknowledge the topics in the abstract.  There will be lots of disagreement, no doubt, about what can or should be made public by executive branch lawyers, whether through DOJ, CIA, DOD, DOS, or other agencies – but I would like to commend Mr. Preston for seeking to find ways to address these issues, to the extent that he and others in the executive believe they can or should do so publicly. Continue Reading…

In Other ECHR News: Greeks Have No Right to Vote, at Least Not in Strasbourg

by Peter Spiro

The European Court of Human Rights is getting a lot of play today with its decision to okay the extradition of Abu Hamza to the US.  To much less (read: no) fanfare, it also denied a petition to compel external voting rights in Greek parliamentary elections for Greek citizens living outside of Greece in the case of Sitaropoulos and Giakoumopoulos v. Greece (press release here).  The opinion includes an excellent overview of where we are on external voting, at least among European states.  The short answer: it’s come along way, but we’re not quite at the point at which it is required as an individual right.

The applicants were making the case for a right to vote in their place of external residence (here, Strasbourg, where they both work as EU civil servants).  They premised their case on the fact that:

they followed political developments in their country of origin with particular interest and wished to maintain close ties with Greece. In particular, they pointed out that they were registered on the electoral roll in Greece, held valid Greek passports, owned immovable property in Greece on which they paid income tax and were still authorised to practise as lawyers in Greece. They maintained that being unable to vote in the Greek parliamentary elections from their State of residence constituted interference with their voting rights, in breach of both the Greek Constitution and the Convention. That interference arose out of the fact that they would have to travel to Greece in order to exercise their right to vote. The applicants acknowledged that they could fly to Samos and Thessaloniki, their respective home towns, for parliamentary elections. However, that possibility did not alter the substance of their claim, namely that they would thereby incur significant expense and that their professional and family life would be disrupted since they would be obliged to be away from their work and families for a few days.

Sounds like a self-governance claim to me.  The Greek government countered with the standards argument against external voting, that non-resident citizens “could not legitimately argue that they were affected by the decisions of the country’s political institutions to a greater extent than Greek citizens living in Greece.”

As described by the ECHR, most European countries now enable external voting (in fact only eight bar it altogether, none of them major and some of them micro, like Andorra and San Marino).  The Venice Commission and the Council of Europe have been pushing for facilitating the franchise by external populations.  But the Court couldn’t find enough there to require under the Convention that voting rights be accommodated in place of foreign residence.  The ECHR implied, however, that external residents cannot be denied the franchise altogether, even if it means getting on an airplane to exercise it.  “As to the disruption to the applicants’ financial, family and professional lives that would have been caused had they had to travel to Greece in order to exercise their right to vote in the 2007 parliamentary elections, the Court is not convinced that this would have been disproportionate to the point of impairing the very essence of the voting rights in question.”

VJIL Symposium: Stephan W. Schill Answers to Anthea Roberts and Jürgen Kurtz

by Stephan Schill

[Stephan W. Schill is a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

I face the difficult task of responding, in limited space, to two very thoughtful and thought-provoking comments by Anthea Roberts and Jürgen Kurtz – many thanks to them for taking the time and trouble! Instead of an exhaustive answer, I want to clarify my concept of public law that arguably should inform our thinking about international investment law. This answers many points Anthea and Jürgen raise.

My concept of public law can be circumscribed as global public law. This merits clarification on several accounts. First, I view international investment law as a system of global public law. Despite numerous differences among bilateral investment treaties (BITs) and despite the one-off nature of arbitration, I see considerable convergence in investment law in light of common principles, an emerging jurisprudence constante, and a common doctrinal reconstruction. All in all, international investment law is one system because there is an epistemic community that treats it as such. This is also not thwarted by recent changes in investment treaty practice, such as that of the U.S. and elsewhere. Certainly, we see recalibration and rebalancing, but little fundamental contestation or complete remodeling. In my view, the network of BITs is not deeply heterogeneous, as Jürgen suggests, but based on sufficient commonalities. I see differences, but do not think they are formative for the functioning of the system.

Second, let me re-emphasize the importance of viewing investment law as global public law. Only sensitivity for how deeply investment law penetrates domestic public law unveils why the regime is so potent and controversial. Neither traditional public international law nor commercial arbitration can analyze this dimension, nor answer to concomitant legitimacy concerns as they embody a horizontal ordering paradigm where power is coordinated among equals. Only a public law approach can address how public authority should be exercised. Notwithstanding, my public law approach is not incompatible with public international law or commercial arbitration, but complementary in pointing to the specificities of investment arbitration that need more attention. It helps adjust the system, not kill it as other proponents of public law approaches to investment law demand.

Third, a global public law perspective rejects viewing investment law through a purely domestic public law lens (which would indeed kill international investment law). For me, states are embedded in an international community where controlling and legitimizing public authority is not limited to domestic public law. Instead, I support a cosmopolitan vision that encompasses public law at both the domestic and the international level, thus constituting one global public law space filled by both international treaties and investor-state contracts. I do not, by contrast, advocate a re-nationalization of international investment law, or prioritize domestic law over international law, as Jürgen claims. Instead, my integrated vision of comparative public law focuses on the core question of public law, that is how to restrict and legitimize the exercise of public authority, without making a principled difference between domestic and international law. The only reason why domestic comparative public law seems more prominent is that it is domestic law that primarily deals with the relations between public authority and private individuals. But international law is essential in a comparative public law exercise, for example when standards of review and the relation between investment tribunals and states are concerned. What we still need to develop, however, is a clearer understanding of the interaction between different levels so as to avoid the pick and choose Anthea fears.
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VJIL Symposium: Commentary on Dr. Stephan Schill’s Virginia Journal of International Law Article

by Jurgen Kurtz

[Jürgen Kurtz is an Associate Professor at the University of Melbourne Law School in Australia.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

For a respectable number of commentators in the field of international investment law, its dispute settlement machinery – which often confers procedural rights on foreign investors as well as states – position the field closer to the private rather than public law end of a spectrum. In his thoughtful new article, Dr. Stephan Schill comprehensively dismantles this claim by advancing “an understanding of international investment law as an internationalized discipline of public law” (p. 59). There is, of course, an important structural justification for positioning international investment law as an integral part of the public international law universe. Various international regimes similarly accommodate non-state actors as either complainants or respondents in dispute settlement, including both human rights protections and international criminal law. It would be implausible to characterize these systems as carve-outs to public international law, and the investment treaty network is no different. For Schill however, the mechanisms to address the growing disenchantment of states parties towards this regime go beyond the confines of public international law itself. Instead, his “core idea is to tackle problems arising under international investment treaties by means of a comparative public law method, which takes inspiration from the more advanced systems of public law at both the domestic and international level” (emphasis added, p. 60).

Comparativism is a powerful methodology. It is one of the few laboratories open to lawyers to assess and understand the operation of different legal and institutional models designed to tackle similar objectives and problems. But at least when it comes to investment law, there may be another approach which is logically and strategically a necessary precursor (at least at this particular stage in the evolution of the system). One of the premises underpinning Schill’s argument is that states only “occasionally react to the decision-making of arbitral tribunals by recrafting investment treaties” (p. 81). Schill’s preference then is for “system-internal adaptation” (pp. 68-71) with the lessons drawn from a comparative law analysis seemingly intended for consumption by adjudicators ruling on an assumed stable set of legal norms. My reading of the treaty landscape is very different. I see the network as deeply heterogeneous with states employing complex (but sometimes highly problematic) strategies to recalibrate their treaty obligations. Most fundamentally, there is a distinct shift away from the classic protective BIT model as states parties refine treaty standards by matching them against identifiable political and economic risks faced by foreign investors. This then logically suggests that interdisciplinary analysis should play an earlier role in probing and testing the contemporary justifications for particular investment protections, before advancing select lessons from other legal systems. It would, after all, be imprudent to erect a roof on a house that is built on soft sand.
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VJIL Symposium: Questions about the Public Law Approach to International Investment Law

by Anthea Roberts

[Anthea Roberts is currently the Visiting Professor of Law and John Harvey Gregory Lecturer on World Organization at Harvard Law School. She also holds the position of Lecturer in Law, Department of Law, London School of Economics and Political Science.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

Thank you very much to Opinio Juris for hosting this discussion and to the Virginia Journal of International Law for inviting me to participate.

Investment treaty arbitration has typically been viewed as a field that marries public international law (as a matter of substance) with international commercial arbitration (as a matter of procedure). During the 2000s, however, a number of authors – including Gus Van Harten (2007), David Schneiderman (2008), Santiago Montt (2009) and Stephen Schill (2010) – have argued that investment treaty arbitration should be reconceptualized as a form of public law because it performs a function that is akin to international judicial review.

Public law approaches have played a key role in legitimacy critiques of the investment treaty system. Some authors, such as Van Harten and Schneiderman, have used the public law approach to argue for the system to be fundamentally overhauled by, for instance, proposing that ad hoc investment tribunals be replaced with a standing investment court. Others authors, such as Montt and Schill, argue that many of the legitimacy critiques leveled against investment treaty arbitration could be countered by an expansion of public law thinking within the existing structure of investment treaty arbitration.

In thinking about these public law approaches, some questions continually recur in my mind. I am grateful for this opportunity to pose some of them to Schill:

* What motivates some scholars to use the public law approach to suggest fundamentally revising the system and others to suggest refining the system from within? If most investment arbitrations continue to be heard by arbitrators with a primary background in public international law or international commercial arbitration, how effective can we expect the public law approach to be in revamping the system from the inside? Can some public law changes be affected only by a radical revision of the system? If so, what are the limits of Schill’s more moderate approach?

* Public law principles often seem to be drawn from North American and Western European states, such as the USA, Canada, England, Germany and France. To what extent does the public law approach assume that the respondent state is robustly democratic? How do principles like deference and standards of review apply when dealing with non-democratic states? Could this result in a two-tiered approach with considerable deference being granted to established democracies and little deference being granted to non-democracies? If so, would this reinforce some of the North-South critiques that have plagued investment protection in the past?
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VJIL Symposium: Introducing Stephan W. Schill’s “Enhancing International Investment Law’s Legitimacy”

by Stephan Schill

[Stephan W. Schill is a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

I am grateful for the opportunity to present, on Opinio Juris, my Virginia Journal of International Law Article – “Enhancing International Investment Law’s Legitimacy: Conceptual and Methodological Foundations of a New Public Law Approach.” It is connected to a book project I edited and published with Oxford University Press in 2010 on International Investment Law and Comparative Public Law. The Article, as well as the book, proposes a new conceptual and methodological approach: to think about international investment law and investor-state arbitration as a public law discipline and to draw on the methods, concepts, and insights of comparative public law in responding to the concerns increasingly often raised about investment law.

Often couched as a “legitimacy crisis,” these concerns predominantly stem from the perception that investment law and investor-state arbitration threaten domestic public law values, including democracy and the rule of law, because party-appointed arbitrators, not democratically-legitimated courts, review government acts and actively craft the substantive standards of investment protection. In my Article, I acknowledge the validity of the concerns raised but suggest system-internal responses that safeguard the considerable advantages of the current system of investment protection over both domestic solutions and an interstate system of dispute settlement like under the WTO.

In my Article, I suggest that, short of radical institutional reforms, much of the criticism of investment law can be countered by a paradigm shift within the mainstream of international investment law. First, those involved in investment arbitration should break with the predominant self-understanding that we operate here in a sub-discipline of international commercial law and arbitration where responsiveness to the will of individual parties to arbitrations is key. Instead, we have to realize and recognize the considerable governance impact the field has on state-market relations and government behavior more generally. This requires accepting the public law nature of the system, which also explains why questions of legitimacy and calls for more transparency and accountability abound.
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Weekday News Wrap: Tuesday, April 10, 2012

by Jessica Dorsey

Up With “PostParadigmism” (in IR Theory and Elsewhere)

by Peter Spiro

Daniel Nexon has a gem of a short review of books by Samuel Barkin and Charles Glaser in the December 2011 edition of Perspectives on Politics.  I am enough of an outsider to International Relations theory to have missed the “war on paradigmism”.  I’m glad to hear that it has apparently been won.  The next challenge, according to Nexon:

What should we do with the remnants of the last war—articles and books whose contributions to collective knowledge will be difficult to parse once “liberal institutionalism” becomes about as meaningful to the average reader as “phlogiston”? How should we (and should we) understand the “isms” if we no longer accept their status as paradigms? What the heck is “puzzle-driven research” if we have no baseline theoretical expectations, let alone “analytical eclecticism,” without heterogeneous schools of thought?

Good questions.  What’s remains of IR if the models are taken off the table, beyond some very general rationalist premises?  Maybe it looks something more like legal scholarship, which might itself dba as “puzzle-driven research”.

I wonder if there might also be a cautionary lesson here for legal academics. International law may have become a little bewitched by the prospect of our own isms and the academic respectability that comes with them.  The downside is a scholaticism that doesn’t always move knowledge along (see this interesting piece by Larry Meade, also in Perspectives).  We’re along way from that at the moment, but it’s not hard to imagine our going down this path, too.

TILJ Mini-Symposium on the Law of Neutrality

by Kevin Jon Heller

The Texas International Law Journal has published its mini-symposium on Karl Chang’s article that argues the law of neutrality provides the applicable legal framework for the United States’ conflict with al-Qaeda.  There are two responses to the article: one by Rebecca Ingber, who is currently a fellow at Columbia Law School; and one by me.  Here is the abstract of my response, which is entitled “The Law of Neutrality Does Not Apply to the Conflict with Al-Qaeda, and It’s a Good Thing, Too: A Response to Chang”:

In his Article “Enemy Status and Military Detention in the War Against Al-Qaeda,” Karl Chang addresses one of the most critical problems in contemporary international law: the scope of a state’s detention authority in non-international armed conflict (NIAC). Some have argued that detention in NIAC is governed solely by the rules of international humanitarian law (IHL) applicable in international armed conflict (IAC), particularly the Fourth Geneva Convention’s provisions concerning the detention of civilians. Others claim that because conventional IHL does not regulate detention in NIAC, the scope of detention must be determined solely by reference to national law and international human rights law (IHRL). And still others have taken the position that IHL, national law, and IHRL are all relevant to determining the scope of detention in NIAC.

Chang, by contrast, looks to a completely different source of law: the law of neutrality. He rejects the idea that the scope of detention in NIAC is determined by the distinction between “combatants” and “civilians,” which is essential to all of the approaches mentioned above. Instead, he argues that “the legal limit on military detention is ‘enemy,’ a concept that has been defined in the law of neutrality.” Indeed, in his view, “The framework of duties and immunities in neutrality law gives an overarching international law framework for U.S. military operations against al-Qaeda.” This is a unique thesis. De lege ferenda, the law as it ought to be, the Article makes an intriguing case for the relevance of neutrality law’s distinction between friend and enemy. But de lege lata, the law as it is, the Article is deeply problematic. Properly understood, the law of neutrality either does not apply to whatever NIAC exists between the United States and al-Qaeda or applies in a symmetrical manner that, if states took it seriously, would effectively cripple the United States’ counterterrorism efforts against al-Qaeda.

Readers’ thoughts would be most welcome.

Where Did the Tradition of a European IMF Managing Director Start? Thank J. Edgar Hoover.

by Chris Borgen

Benn Steil, director of international economics at the Council on Foreign Relations has an interesting peek at the history of the formation of the World Bank and IMF in a New York Times op-ed. From their inceptions, the World Bank has traditionally had an American President and the IMF a European Managing Director. But why? I had learned in college that it was a grand bargain needed to ensure European (particularly French) support. But Steil examines a more precise question: why did the Europeans get the IMF post, particularly when the IMF was the institution that the Americans viewed as being more central to their own interests? The answer, it seems, relates less to theories of international organization management and more on J. Edgar Hoover.

Harry Dexter White, the Treasury Department’s key representative at the Bretton Woods conference and a key architect of the IMF had a “vision of a postwar global financial architecture dominated by the American dollar.” Steil continues:

[O]n Jan. 23, 1946, Harry S. Truman nominated White to be the first American executive director of the I.M.F. (such directors representing the major member countries). Truman was also widely expected to nominate White for the fund’s top post of managing director.

But trouble soon arose in the form of J. Edgar Hoover, the F.B.I. director. White had been under surveillance for two months, suspected of being a Soviet spy. Hoover prepared a report for the president, based on information provided by 30 sources, including the confessed spy Elizabeth Bentley, asserting that White was “a valuable adjunct to an underground Soviet espionage organization,” was placing individuals of high regard to Soviet intelligence inside the government. If word of his activities became public, Hoover stressed, it could jeopardize the survival of the fund.

Oblivious, the Senate Committee on Banking and Currency approved White’s nomination on Feb. 5, the day after Hoover’s report was delivered.

Secretary of State James F. Byrnes, having read the report, wanted Truman to withdraw the nomination; Treasury Secretary Fred M. Vinson wanted White out of government entirely. Truman, who did not trust Hoover but who knew he had a major political problem on his hands, decided to quarantine White as the American I.M.F. executive director, a huge step down from managing director.

And what started as a defensive manoeuvre, hardened onto tradition and expectation.  The whole op-ed is interesting, with some great bits on John Maynard Keynes. I look forward to Steil’s forthcoming book, The Battle of Bretton Woods.

VJIL Symposium: Response to Commentary on Medical Tourism, Access to Health Care, and Global Justice

by I. Glenn Cohen

[I. Glenn Cohen is an Assistant Professor of Law and the Co-Director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

I have relied on the work of each of these commentators and think of them as scholarly partners, so I am very grateful for their kind words and their comments on my piece.

I will respond to them collectively, under two headings.

Missing Evidence and Burdens of Proof:

As Snyder, Crooks and Cortez emphasize, empirical evidence on the effects of medical tourism on access to health care by the destination country poor, as with most aspects of medical tourism, is largely unavailable, and what is available is often not rigorous. As Crooks and Snyder put it “[w]ithout more data on the impacts of specific forms of medical tourism in particular communities, providing action-guiding, normatively-informed analyses of medical tourism will be challenging.” While their own excellent work aims to generate such empirical data, as they recognize, we are still a long way off.

The question is how to proceed in the interim? I try to advance the ball in my article through by generating conclusions that should follow if we can demonstrate that medical tourism has negative effects, and specifying six triggering conditions under which that conclusion seems likely. Chen and Flood misread me when they object to the idea (they ascribe to me) that “all six conditions laid out by Cohen must be satisfied to conclude that medical tourism undermines health access in the destination country.” Instead as I write on page 13 of my article: “In countries where the triggering conditions all obtain, one would expect medical tourism to cause some diminution in access to health care for the destination country’s poorest due to medical tourism; as fewer factors obtain, this becomes less likely,” so we are actually in agreement.

Chen and Flood do actually disagree with me about the burden to justify regulatory action, writing that “[t]here is an inherent bias in Cohen’s framework in that the burden seemingly rests on opponents of medical tourism to establish its adverse effects rather than vice versa.” My priors, similar to Cortez’s, is that where there are willing providers of services (destination country physicians and facilities) and willing consumers (home country patients, insurers, governments) pursuing an ordinarily morally unproblematic activity (providing medical services) involving voluntary transactions, the proponents of introducing new regulatory interventions should come forward with evidence showing a need to act. I would say the same domestically: we legislate to solve problems.

That said, this disagreement is not all that important for two reasons: (1) I and the other commentators are in favor of doing the research needed to answer the question of what medical tourism’s effects are, such that we hope to reach an actual answer to this question rather than having to decide the matter on a kind of “summary judgment” where the mover’s burden may prove crucial; (2) the vast bulk of my Article proceeds on the assumption that the evidence for the negative effects is obtained and asks what should follow.
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VJIL Symposium: Commentary on Medical Tourism, Access to Health Care, and Global Justice

by Jeremy Snyder and Valorie A. Crooks

[Jeremy Snyder is an Assistant Professor in the Faculty of Health Sciences at Simon Fraser University; Valorie A. Crooks is an Associate Professor in the Department of Geography at Simon Fraser University.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

In his article “Medical Tourism, Access to Health Care, and Global Justice,” Glenn Cohen provides an excellent discussion of the responsibilities of states for responding to and managing the potential negative consequences of medical tourism. Cohen gives an overview of canonical accounts of global justice and their implications for state responsibility, helpfully demonstrating that different accounts of justice will provide different answers to questions of responsibility. In this way, Cohen’s article makes the case for continued research on theories of global justice and their implications for global health practices like medical tourism.

Cohen’s article faces a limitation shared by others conducting research on the impacts of medical tourism, a global health practice that, while not new, has expanded greatly in scope and visibility in recent years. Little trustworthy evidence is available about medical tourism patient flows or the impacts of this practice on health equity, health human resources, patient health and safety, and the spread of infectious disease. While descriptors of patient flows are available, they vary greatly and have been criticized for their inaccuracy. These problems are compounded by differing definitions of medical tourism and methods for quantifying its impacts. While we applaud Cohen’s work in advancing understanding of the implications of accounts of global justice for assigning responsibilities to states, this project is confounded by an absence of reliable empirical data. As a result, Cohen and others are frequently relegated to making statements of this sort: ‘If medical tourism is harmful, then x; however, if medical tourism is beneficial, then y.’ Without more data on the impacts of specific forms of medical tourism in particular communities, providing action-guiding, normatively-informed analyses of medical tourism will be challenging.

New empirical research into the effects of medical tourism is emerging, which will help to increase the effectiveness of theory-driven research on this issue. It is important that this new work be informed and guided by theory-driven research like Cohen’s. This is because medical tourism is an enormously complex global health practice with myriad different impacts in destination and patients’ home countries that require careful consideration. Numerous stakeholders are involved in this practice, including citizens, government officials, health workers in destination and patients’ home countries, patients themselves and their support networks, medical tourism facilitators, and medical tourism providers and investors. The benefit of well-developed, theory-driven accounts of the moral and legal landscape of medical tourism is that they can help indicate which potential impacts of this practice, for which stakeholders, and in which environments are most pressing to explore empirically. The resources available to provide empirical insights on the ethical and legal dimensions of medical tourism are limited, and without guidance on prioritizing research questions these resources risk being wasted.
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VJIL Symposium: Which Theory of Global Justice Best Accommodates the Uncertainties of Medical Tourism?

by Nathan Cortez

[Nathan Cortez is an Assistant Professor of Law at SMU Dedman School of Law.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

Thanks to the Virginia Journal of International Law for inviting me to comment on Glenn Cohen’s important article “Medical Tourism, Access to Health Care, and Global Justice.” Like the other contributors, medical tourism is a primary research focus of mine. Glenn’s right: the scholarship is undertheorized (p. 9). His article admirably initiates a dialogue between theory and its application. On that criterion, his article is both ambitious and modest – ambitious in testing the grand theories of Global Justice, and modest in confronting just one of the cascading questions that medical tourism raises: What should we do if medical tourism decreases access to care for destination country residents?

Glenn evaluates three competing theories: cosmopolitan; statist; and intermediate. He prefers the intermediate theories of Joshua Cohen, Charles Sabel, Norman Daniels, and Thomas Pogge, which avoid the paralyzing moral obligations imposed by cosmopolitan theories but recognize that we probably owe more than what statist theories require. (Indeed, the statist theories limiting our obligations domestically seem quaint given the topic – a sprawling global trade in medicine.)

But before engaging these theories, Glenn first addresses the empirical question – Does medical tourism really diminish access to care locally? (pp. 9-14)

We just don’t know. Most of us have a strong intuition that the answer is yes. But as Glenn notes, our evidence is anecdotal, uncertain. Indeed, the lack of data is a persistent frustration for scholars in this area. As such, my inclination was to evaluate the Global Justice theories on how well they accommodate this reality.

Glenn prefers the intermediate theories in part because the duties they impose are triggered by causation – if medical tourism decreases access to care locally, then certain obligations follow. But that causal observation requires data.

The cosmopolitan utilitarianism of Mills and Bentham (pp. 18-19), also requires empirical information in the form of welfare measurements (e.g., “Does medical tourism increase the utility of uninsured Americans more than it decreases the utility of poor patients in India?” and countless other calculations). Likewise, the cosmopolitan sufficientarianism of Amartya Sen and Martha Nussbaum requires us to identify some minimum threshold below which we shouldn’t let local residents fall. But what’s the threshold?
Continue Reading…

VJIL Symposium: The Importance of Equity – A Response to Glenn Cohen

by Colleen M. Flood and Y.Y. Brandon Chen

[Colleen M. Flood is the Canada Research Chair in Health Law and Policy at the University of Toronto Faculty of Law; Y.Y. Brandon Chen is a doctoral candidate at the University of Toronto.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

In this thought-provoking article, Cohen proposes a six-prong framework to assess whether medical tourism diminishes health care access in destination countries. This kind of theoretical contribution is extremely important to frame public debates, and ultimately inform legal and policy responses. In what follows, we outline four challenges to Cohen’s framework and argue that equity in the distribution of health resources should be fulsomely considered in any discussion of medical tourism.

First, medical tourism engenders concerns about both health access and health equity, particularly when occurring in developing countries; Cohen’s framework addresses the former but neglects the latter. For instance, even assuming that health services provided to medical tourists originate from fresh investments that were not previously available, and therefore health access for local patients would have theoretically stayed the same, there remains the question of why patients from well-resourced developed countries – however sympathetic their personal circumstances may be – should be the primary beneficiaries of these resources rather than patients in the developing world. The inequity between foreign and local patients is further accentuated if a substantial amount of these fresh resources is devoted to providing medical tourists with perquisites above and beyond usual standard of care that are unavailable to most destination country residents. We argue that such equity considerations per se render medical tourism problematic.

Second, there is an inherent bias in Cohen’s framework in that the burden seemingly rests on opponents of medical tourism to establish its adverse effects rather than vice versa. Due to lack of significant statistical evidence to-date confirming medical tourism’s threat to health access in destination countries, those with concerns about medical tourism will inevitably fail to satisfy Cohen’s test. However, we could arguably start instead with the assumption that medical tourism will likely have adverse equity impacts. In this case, if the evidentiary burden was upon supporters of medical tourism to dispel equity concerns, they too would face difficulties with a sparse evidentiary base.
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VJIL Symposium: Introducing Medical Tourism, Access to Health Care, and Global Justice

by I. Glenn Cohen

[I. Glenn Cohen is an Assistant Professor of Law and the Co-Director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

First, I would like to thank Opinio Juris for hosting this discussion on my recent Article in the Virginia Journal of International Law.

Medical tourism–the travel of patients from one (the “home”) country to another (the “destination”) country for medical treatment–represents a growing business. A number of authors have raised the concern that medical tourism reduces access to health care for the destination country’s poor and suggested that home country governments or international bodies have obligations to curb medical tourism or mitigate its negative effects when they occur.

This Article is the first to comprehensively examine both the question of whether this negative effect on access to health care occurs for the destination country’s poor, and the normative question of the home country and international bodies’ obligations if it does occur.

I begin in Part I by describing and distinguishing medical tourism by individuals purchasing care out of pocket from those whose use is prompted by insurers and governments. I then distinguish concerns about medical tourism’s effect on health care access in the destination country–the focus of this Article–from other concerns with medical tourism that I and others have discussed elsewhere

In Part II I discuss the empirical claim and show that despite the expressions of concern of several prominent scholars and policymakers, there currently exists little empirical evidence that suggests medical tourism has adverse effects on health care access in destination countries. Nevertheless, both as a grounding for what follows and as an attempt to help formulate an empirical research project, I discuss six possible triggering conditions through which we would expect medical tourism to reduce access for the poor in destination countries: (1) The health care services consumed by medical tourists come from those that would otherwise have been available to the destination country poor; (2) Health care providers are “captured” by the medical tourist patient population, rather than serving some tourist clientele and some of the existing population; (3) The supply of health care professionals, facilities, and technologies in the destination country is inelastic; (4) The positive effects of medical tourism in counteracting the “brain drain” of health care practitioners to foreign countries are outweighed by the negative effects of medical tourism on the availability of health care resources; (5) Medical tourism prompts destination country governments to redirect resources away from basic health care services in a way that outweighs positive health care spillovers; (6) Profits from the medical tourism industry are unlikely to “trickle down.”
Continue Reading…

Introduction to the Virginia Journal of International Law/Opinio Juris Online Symposium

by The Editors of the Virginia Journal of International Law

The Virginia Journal of International Law (VJIL) is delighted to be partnering with Opinio Juris this week to host a series of discussions on recent scholarship published by VJIL. This week will feature articles from the first two Issues of Volume 52 of the Journal. The complete Issue 52:1 can be downloaded here. Issue 52:2 can be found here.

On Monday, we begin our discussion an Article by I. Glenn Cohen (Harvard Law School) – “Medical Tourism, Access to Health Care, and Global Justice.” Cohen comprehensively examines the question of whether medical tourism reduces access to health care for the destination country’s poor and whether such deprivations trigger international legal obligations. Excellent commentary will be provided by Nathan Cortez (SMU Dedman School of Law), Colleen M. Flood and Y.Y. Brandon Chen (University of Toronto Faculty of Law), and Jeremy Snyder and Valorie A. Crooks (Simon Fraser University).

On Tuesday, we continue with Stephan W. Schill’s (Max Planck Institute) Article, “Enhancing International Investment Law’s Legitimacy: Conceptual and Methodological Foundations of a New Public Law Approach.” Schill responds to the challenges international investment law poses for domestic public law values by suggesting that international investment law and investment treaty arbitration should be conceptualized as public law disciplines. He argues that investment treaties should be interpreted, investor-state disputes resolved, and system-internal reform proposed by recourse to public law thinking. Anthea Roberts (Visiting Professor at Harvard Law School and Lecturer in Law, Department of Law, London School of Economics and Political Science) and Jürgen Kurtz (Associate Professor, Melbourne Law School) will respond.

On Wednesday, Gregory Shaffer (University of Minnesota School of Law) and Joel Trachtman (Fletcher School – Tufts University) will discuss their Article, “Interpretation and Institutional Choice at the WTO.” Shaffer and Trachtman develop a framework of comparative institutional analysis for assessing the implications of judicial interpretation at the World Trade Organization. Although the framework they develop focuses on the WTO, it also has relevance for understanding the interpretation of international and domestic legal texts from “law and economics” and “law and society” perspectives. Responding to their piece will be Rachel Brewster (Harvard Law School), Robert Howse (New York University School of Law), and Joost Pauwelyn (The Graduate Institute, Geneva).
Continue Reading…

Weekday News Wrap: Monday, April 9, 2012

by Jessica Dorsey

Upcoming Events – 8 April 2012

by An Hertogen

Opinio Juris is proud to bring you a new regular feature aggregating all calls for papers, conference and event announcements that we receive. If you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Juris please contact us.

Calls for Papers

  • Panel proposals for the International Law Weekend 2012, to be held on October 25-27, 2012, in New York City, are due April 13, 2012. More information can be found here.
  • The Complexo Pedagogico, Universidade Eduardo Mondlane, Maputo, Mozambique is hosting a conference on international law in Africa, taking place October 5-6, 2012 entitled: The Quest for Human Security, Peace and Development: Challenges and Responses. The call is here and more information about the conference is found here. The deadline for 500-word abstract submissions is May 1, 2012.
  • The Hague Academic Coalition has an upcoming conference entitled The Politics of Justice: From A Human Rights Revolution to Global Justice? taking place October 12-13, 2012 in The Hague, and has issued this call for abstracts of no more than 300 words dealing with the conferences select topics, found here, along with conference information. The deadline for abstract submission is May 15, 2012.
  • The Australian and New Zealand Society of International Law and the Asian Society of International Law have issued a call for a joint conference in Sydney on “International Law and Justice,” happening October 25-26, 2012. Here’s the call; abstract submissions due May 30, 2012.
  • The International Society of Military Sciences (ISMS) is hosting its Annual Conference 23-24 October 2012 in Kingston, Ontario. The general theme of the conference is: “Balancing domestic and international security requirement.” The call for papers is here, with 500-word abstracts due before June 15, 2012.
  • The Melbourne Journal of International Law has issued a call for papers for their issue 13(2), to be published in November. The deadline for submission is July 2, 2012.

Upcoming Conferences

Weekend Roundup: March 31 – April 6, 2012

by An Hertogen

Roger Alford kicked off the new week with quotable quotes from the ASIL Annual Meeting. Also on ASIL, Julian Ku posted an excerpt from his report on the Chevron-Ecuador panel.

Ken Anderson reported on the first decision by the Inter-American Court of Human Rights to recognize unlawful discrimination on the basis of sexual orientation.

Julian Ku sensed a trend of US civil rights groups making increasing use of international organizations as alternative fora for their domestic claims, pointed out his pet peeve: a newspaper headline mixing up “international law” and “foreign law”, and discussed the legal differences between the Libyan intervention and a possible military intervention in Syria. He also questioned why the faculty of Osgoode Hall Law School rejected a $60 million donation for the study of international law.

Deborah Pearlstein challenged claims that the political and legal difficulties surrounding detention have caused an increase in the targeted killing operations.

Kevin Heller posted about the disarray at the ECCC, as catalogued in a note by the recently resigned International Co-Investigating Judge Laurent Kasper-Ansermet. Kevin argued that while Henry Ford may have paid his workers a good salary, as pointed out in Obama’s prepared remarks of his budget speech, he was not such a good role model when his anti-Semitism and pro-Nazi stance is taken into account. Kevin also posted a cartoon by Mat Bors and plugged an article about greenwashing and Chevron.

Kevin discussed the ICC’s pre-trial chamber’s decision to reject Libya’s request to postpone the surrender of Gadhafi’s son, so he can be tried domestically. As Kevin pointed out, the chamber avoided the question whether article 95 of the Rome Statute applies to surrender requests or only to requests for the collection of evidence.

Following the decision by the ICC’s Office of the Prosecutor (OTP) to reject Palestine’s attempt to accept its jurisdiction under article 12(3) of the Rome Statute, Kevin asked whether the authority to decide this issue lies with the OTP, potentially reviewable by the Appeals Chamber, or with the Assembly of States Parties (ASP). In a follow-up post, he wondered why the Palestinians never asked the ASP to determine that Palestine qualified as a state for ICC purposes. In a guest post, Michael Kearney, provided background on the three years since the Palestinians’ request and reflected on the Prosecutor’s decision. David Davenport responded in a guest post to Kearney and finally, Kevin Heller posed three questions for Davenport.

Still on Palestine, but involving a very different ICC, Roger Alford reported on the inauguration of the Jerusalem Arbitration Center, established under the auspices of the International Chamber of Commerce as a joint venture between ICC Israel and ICC Palestine.

Roger also covered John Bolton’s Federalist Society speech at Notre Dame Law School Thursday, in which Bolton claimed the US has a choice between supporting an Israeli preemptive strike and accepting a nuclear Iran. On the topic of anticipatory attacks, Marty Lederman guest posted about the 2007 strike in Syria and the broader questions raised regarding implications covert actions may have on the formation or evolution of customary international law, especially in the context of self-defense.

This week, we brought you a series of eight guest posts by Professor Jan H. Dalhuisen, whom Julian Ku introduced here. This series dealt with a topic that we do not often cover on Opinio Juris: the transnationalization of private law. In his first post, Professor Dalhuisen explained what this means and why it is important for the regulation of international commerce and finance. He discussed the sources of modern lex mercatoria, the hierarchy of norms in the operation of lex mercatoria, and the legitimacy of modern lex mercatoria. He explained why modern lex mercatoria is dynamic, moving away from static interpretations of contract and movable property law. In light of lex mercatoria’s dynamic nature he discussed the notions of certainty, predictability of finality of the law. He discussed how international arbitration clauses and international arbitrators derive their recognition and power from the transnational commercial and financial legal order. In his final post, he discussed the role of legal academia in the development of lex mercatoria.

Finally, we posted an announcement for an international criminal law conference on “Pluralism v Harmonization: National Adjudication of International Crimes”, to be held in Amsterdam on 14-15 June 2012.

Have a nice weekend!

Three Questions for David Davenport

by Kevin Jon Heller

Mr. Davenport makes some very strong claims in his post concerning the OTP’s refusal to accept the Palestinian declaration.  Although I am on record with my belief that accepting the declaration would be a terrible political move for the ICC, I have a number of questions about Mr. Davenport’s claims.  I hope he will take the time to answer them in a subsequent guest-post.

First, Mr. Davenport says that “[t]he only case in favor of jurisdiction was always a set of political arguments in search of a valid legal vehicle that was never found.”  Bill Schabas has offered a quite compelling “legal vehicle” for the ICC to accept the Palestinian declaration, which focuses on (1) the fact that the Rome Statute is open to “all states,” and (2) that the UN Secretary-General previously concluded that the Cook Islands could ratify any treaty open to “all states” even though it was not an independent state, because it had been granted membership by a number of specialized UN agencies, including UNESCO.  Indeed, the Cook Islands has ratified the Rome Statute.  I would thus appreciate Mr. Davenport’s explanation of why, in light of the Cook Islands precedent and Palestine’s membership in UNESCO, Palestine is not entitled to ratify any treaty open to “all states,” including the Rome Statute.

Second, Mr. Davenport argues that “[t]ypical of such extra-legal arguments is a previous post pointing out that, since the submission in 2009, the political case for Palestinian statehood has grown stronger, when the only legally relevant time was when the acts complained of took place (2002-early 2009).”  I would appreciate Mr. Davenport pointing out what provisions in the Rome Statute support his argument.  Article 11(2) of the Rome State specifically provides that “if a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3” (emphasis mine). Article 12(3), in turn, permits a state to accept the ICC’s jurisdiction over any crime committed after 1 July 2002, the date the Rome Statute entered into force, even if that acceptance is retroactive.  Indeed, the Court has never questioned Cote D’Ivoire’s declaration under Article 12(3), filed with the Court on 1 October 2003, even though the declaration accepted jurisdiction retroactive to 19 September 2002.  The OTP is currently investigating the situation in Cote D’Ivoire.

Third, Mr. Davenport says, with regard to the OTP’s belief that the Assembly of States Parties could vote to accept the Palestinian declaration, “[s]urely this means that ASP review would only be to implement any action by the U.N.; nothing in the Rome State implies any larger ASP role in statehood matters in any event.”  What is the basis for this claim?  If UNESCO’s membership is entitled to admit Palestine without approval by the UNSC or UNGA, why is an independent international organization not entitled to do the same?  The UN has no formal authority over the ICC (except concerning referrals to the Court, of course, which is given to the Security Council by the Rome Statute).  And why is it not implicit in the Rome Statute that the ASP — the ICC’s “legislature” — may determine who is eligible to ratify the Rome Statute or accept its jurisdiction?  After all, Article 112(2), as the OTP pointed out, specifically says that the ASP may “[p]erform any other function consistent with this Statute or the Rules of Procedure and Evidence.”  How would a determination that the Court may accept the Palestinian declaration be inconsistent with the Statute or RPE?

Mr. Davenport concludes his post by claiming that “this is clearly the end of the line for any ICC complaints about the events raised in the PNA’s declaration of 2009.”  In light of the considerations I have discussed above, that seems to be a questionable conclusion.  I look forward to Mr. Davenport’s response.

The ICC and Palestine: A Response

by David Davenport

[David Davenport is a Research Fellow at the Hoover Institution]

In the end, the Prosecutor of the International Criminal Court made the only “legal” decision he could:  the ICC has no jurisdiction to act on the complaint of the Palestinian National Authority since Palestine is not a State and the Court is limited to accepting submissions by States.  The only case in favor of jurisdiction was always a set of political arguments in search of a valid legal vehicle that was never found.  Typical of such extra-legal arguments is a previous post pointing out that, since the submission in 2009, the political case for Palestinian statehood has grown stronger, when the only legally relevant time was when the acts complained of took place (2002-early 2009).  Or a previous post’s argument that went straight to political motives—that Prosecutor Moreno-Ocampo “contrived to reject the existence of the state of Palestine”—when, again, the proper issue before a criminal court was whether its own jurisdictional requirement was satisfied.

The real problem here was Palestine’s unsuccessful effort to find a legal hole through which to pound a political peg.  A court that prosecutes individuals for criminal liability is the last place where one would countenance teleological and expansive notions of jurisdiction.  Those debates belong in political bodies, not in criminal courts.  This was, of course, part of Palestine’s larger campaign to find international institutions that might punch its ticket on the road to statehood, a project that has stalled out at the ICC and elsewhere.

So, what now?  Surely Ocampo’s decision is binding on the Office of the Prosecutor, practically if not legally.  How can a prosecutor undertake this bizarre process of accepting submissions from nearly everyone, posting them on the Internet, hosting salons, and sitting on the question for three years, only to reverse itself later?  If it is to be credible, the OTP cannot reconsider this without further action by a political body such as the United Nations.  And Ocampo’s suggestion that the Assembly of States Parties might also “in due course” or “eventually” address the matter was mentioned following his guidance that all this requires statehood action by the United Nations.  Surely this means that ASP review would only be to implement any action by the U.N.; nothing in the Rome State implies any larger ASP role in statehood matters in any event.

Importantly, any future action toward statehood could only enable Palestine to bring the Court a situation after statehood is determined, since the ICC is unable to take up matters retroactively.  Thus, this is clearly the end of the line for any ICC complaints about the events raised in the PNA’s declaration of 2009.

Cherry and Sneirson on Chevron and Greenwashing

by Kevin Jon Heller

It’s not every day that a law review article comes along that combines two of my interests: greenwashing, whereby large corporations pretend to care about the environment in order to distract people from the fact that they are busily destroying it, and Chevron.  So I want to put in a hearty plug for Miriam Cherry and Judd Sneirson’s “Chevron, Greenwashing, and the Myth of ‘Green Oil Companies’,” which is forthcoming in the Journal of Energy, Climate, and the Environment.  Here is the abstract:

As green business practices grow in popularity, so does the temptation to “greenwash” one’s business to appear more environmentally and socially responsible than it actually is. We examined this phenomenon in an earlier paper, using BP and the Deepwater Horizon catastrophe as a case study and developing a framework for policing dubious claims of corporate social responsibility. This Article revisits these issues focusing on Chevron, an oil company that claims in its advertisements to care deeply about the environment and the communities in which it operates, even as it faces an $18 billion judgment for polluting the Ecuadorean Amazon and injuring its people. After describing Chevron’s “we agree” advertising campaign, the Article sets out our framework for approaching “faux” corporate social responsibility, gauges whether misled consumers and investors might have a legal remedy as a result of Chevron’s advertising claims, and proposes refinements to better regulate corporate greenwashing.

As Cherry and Sneirson point out in their introduction, Chevron touts “The Chevron Way” on its website, insisting that the corporation “is built on our values, which distinguish us and guide our actions. We conduct our business in a socially responsible and ethical manner. We respect the law, support universal human rights, protect the environment and benefit the communities where we work.”

Noted without comment.

Question on 2007 Strike Against Syria and Anticipatory Self-Defense

by Marty Lederman

[Marty Lederman is a Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002]

There was, of course, a great deal of international opinion offered concering the legality of the Israeli strike on the Osirak reactor in 1981.  But as two recent articles stress — see this piece by Georgetown student Leah Schloss and this piece by Australian professor Andrew Garwood-Gowers [which can also be found here if that link doesn’t work] — there has been virtual silence from the international community about the 2007 strike on the  Syrian nuclear facility at al-Kibar.

Is that account accurate?  I assume that because Israel has never acknowledged its purported involvement, it has also never offered an international law defense of the operation.  (True?)  Is it also the case that virtually no other nations have said anything one way or the other about its legality?

If so, what, if anything, does the 2007 operation portend for the development of the law of self-defense?  I’d welcome reactions to the Schloss and Garwood-Gowers articles and the question more generally, particularly from those who do not assume that all anticipatory strikes violate the Charter.

[UPDATE:  I’d also welcome comments on a broader question epitomized by this example–one that it appears will be increasingly relevant as time goes on:  What role, if any, can covert actions play in the creation or evolution of custom if no nation acknowledges the action in question and therefore there is no agreed upon version of the relevant facts and arguable legal justifications?  Does the answer to this question depend upon the nature, if any, of objections to the action?  What if there comes to be a generally accepted view of what “really happened,” based on leaks and the like, but still no official account or acknowledgement, let alone adjudication?]

Thanks in advance.

John Bolton: Either Support an Israeli Preemptive Strike or Accept the Reality of a Nuclear Iran

by Roger Alford

Speaking at a Federalist Society meeting yesterday at Notre Dame Law School, former Ambassador John Bolton addressed what the Obama Administration should do to curtail the threat of Iran. He offered not a single word of praise for the Obama Administration’s foreign policy and not a single word of criticism for the Bush Administration, such as its failure to prevent a nuclear North Korea. Bolton presented a grim picture of the future Middle East faced with a bellicose Iran and a feckless American President.

Bolton argued that the greatest threat to the world today is a nuclear Iran, whereas “President Obama seems to think that the greatest threat to the Middle East are a few Jewish settlements in the West Bank.” He offered no hope that sanctions would deter Iran, and declined to endorse lesser responses (such as another Stuxnet cyberattack on Iran’s nuclear facilities) short of an armed attack.

He concluded that the United States had a stark choice: either support Israel’s decision to bomb Iran or accept the reality of a nuclear Iran. Bolton left no doubt as to his preference between these “two unattractive choices.” He predicted that Israel would engage in a preemptive strike against Iran by the end of the calendar year and that since the United States “will be blamed anyway,” we should stand strong behind Israel.

As for Iran’s likely response to such a preemptive attack, Bolton conceded that Iran would strike back on Israeli territory, either directly or indirectly through Hezbollah. But that risk, he predicted, would not deter Israel, nor should it alter our support for such an attack.

The risk of a nuclear Iran was not simply that it would arm terrorists, but that it would also lead inexorably to a regional nuclear arms race, with Saudi Arabia and other countries seeking nuclear capacity in quick succession.

In response to questions as to the legitimacy of a preemptive strike, he cited historical examples of Israel’s 1981 attack on the Osiraq facility in Iraq and the 2007 attack on the Al-Kibar facility in Syria as examples of legitimate exercises of preemptive self-defense. The idea that you had to be physically attacked to engage in self-defense was anachronistic in the modern age of weapons technology. When one of my students asked where you draw the line in asserting a claim of preemptive self-defense, Bolton said he was not interested in theoretical questions. “You must establish that you are actually engaging in self-defense,” Bolton reasoned, “it cannot be mere rhetoric.” But we need not demand an actual armed attack–the limiting language used in Article 51 of the U.N. Charter–to justify a defensive attack.

So there you have it. An unequivocal endorsement by the former U.S. Ambassador to the UN supporting a preemptive strike against Iran in the near term. Bolton never endorsed a U.S. attack on Iran, nor did he detail what he meant by American support for an attack. But he clearly stated that an attack against Iran would be in the U.S. national interest.

“President Obama thinks that American strength is provocative,” he concluded. “while I think American weakness is provocative.”

Weekday News Wrap: Friday, April 6, 2012

by Jessica Dorsey

ICC Ducks the Article 95 Issue Regarding Gaddafi

by Kevin Jon Heller

The ICC’s Pre-Trial Chamber I (PTC) has rejected Libya’s request to postpone the surrender of Saif Gaddafi so that he can be prosecuted domestically for other crimes.  That request was based on Article 95, which reads:

Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19.

Readers will recall that Dapo Akande, Jens Ohlin, and I have been involved in a friendly debate about whether Article 95 applies to surrender requests, as they believe, or only to requests for the collection of evidence, as I believe.  (See here and here.)  Libya’s latest request gave the PTC an opportunity to give us an answer — but, unfortunately, the judges ducked the Article 95 issue, holding that Libya’s failure to bring a formal admissibility challenge pursuant to Article 18 or 19 meant that they did not have to reach it (emphasis mine):

18.    With regard to article 95 of the Statute, on which the Government of Libya further bases its Second Postponement Request, the Chamber recalls that this provision may be invoked only ”[wjhere there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19.” Consequently, article 95 of the Statute only applies when there is an admissibility challenge under consideration. Though Libya has announced that an admissibility challenge is forthcoming, there is currently no such challenge before the Chamber. Therefore, the Chamber holds that article 95 of the Statute cannot serve as a legal basis for Libya’s Second Postponement Request. Consequently, the Second Postponement Request presented by the Government of Libya must be rejected. At this time, the Chamber does not consider it necessary to determine whether article 95 of the Statute applies to surrender requests.

I don’t think this statement tips the PTC’s hand, but it’s clear that the judges recognize the issue.  Once (if?) Libya does file a formal admissibility challenge, we’ll likely have our answer.

Hat-Tip: Gentian Zyberi at the always excellent International Law Observer.

The Relevance of the Academic Model for the Modern Lex Mercatoria

by Jan Dalhuisen

[Jan H. Dalhuisen is Professor at King’s College in London, the Miranda Chair of Transnational Financial Law at the Catholic University in Lisbon, and is Visiting Professor at UC Berkeley]

Professor Dalhuisen is guest-blogging with us this week on the transnationalization of private law. Links to his other posts can be found under “Related Posts” below.

The Codification idea, the DCFR as the EU attempt at codification, the EU jurisdiction in the area of private law formation, and especially the force and meaning of the academic model in the law need to be further considered if we are to acquire a better perspective on the formation of private law at the transnational level and therefore on the modern lex mercatoria.

It was already said that private law including commercial law had been thought of as being transnational until the 19th Century especially on the European Continent.  This was confirmed by the general acceptance of the Roman law as superior customary law even though in commerce there was local law but it was not nationalistic, it was often regional or municipal and could operate cross border. The laws in the Channel ports between France and England and across the Alps between France and Italy were already mentioned.

Again, the dominance of national states since the early 19th Century changed all that. The right insight was here that law moved with society and its values. The latter had already been accepted in the natural law school which philosophy was now, however, rejected because of its universalist claims.  Instead the law was nationalized everywhere.  Moving with society soon meant on the European Continent a monopoly for national legislators. Overriding principles were out, custom was suspect.  Party autonomy depended on the license of the state. Even in England, the law was henceforth thought to issue from the sovereign (Austin), albeit still mainly through the courts. Other sources of law, custom in particular became here also of dubious value. Only in commerce its value was still acknowledged but the status in particular of international custom became unclear.

In this atmosphere, it became also axiomatic that property law operated per country.  If one bicycled from Basel to Strasbourg, the bicycle went through three different legal regimes of ownership. The law of assignment was no less seen as an expression of a national culture. It seemed unnecessary if not bizarre in economic systems that were largely the same.  The codes underscored this but it is important to understand that the codification movement had two different prongs. The early codification in France (1804) was product of Enlightenment and largely a cleaning out exercise which was found to be best conducted at the level of the state. It was a question of greater transparency and efficiency and lesser transaction costs. Nationalism was not a key element and this allowed the French code to spread fast through neighbouring countries. The fact that other sources of law were eliminated was foremost pragmatic. The German Code which came about hundred years later was conceptually very different and the product of German nationalism and idealism. It claimed for the state the deeper insights in the human condition and the ability through its academies to best regulate human behaviour. Codification is here an academic model and its system acquired a mystical and irrational element.  The claim was that the result was complete, represented the reality of human relationships and had the answer in it to all questions present, past and future.  It could as such not be questioned because it was the law imposed by the state. All other sources of law were subjugated to it. They had no independent status because they were not considered legitimate without governmental recognition. Continue Reading…

The Modern Lex Mercatoria and International Arbitration

by Jan Dalhuisen

[Jan H. Dalhuisen is Professor at King’s College in London, the Miranda Chair of Transnational Financial Law at the Catholic University in Lisbon, and is Visiting Professor at UC Berkeley]

Professor Dalhuisen is guest-blogging with us this week on the transnationalization of private law. Links to his other posts can be found under “Related Posts” below.

With the model of a transnational commercial and financial legal order and its own lex mercatoria in mind, it is quite easy to explain what modern international commercial arbitration is and is not, or no longer. It is denationalized or delocalised to start with. Thus the arbitration clause is separated from the rest of the contract and derives its recognition and power from this transnational order as do therefore arbitrators, whose status derives institutionally also from that order.  Indeed the separation and Kompetenz-Kompetenz principles are themselves matters of transnational law. So are the concepts of jurisdiction and arbitrability in international arbitrations, the authority of arbitrators to find the applicable law even if regulatory, and the rules of procedure and evidence. I said earlier that arbitrators act here like equity judges when developing the substance of the lex mercatoria further. The award itself is based in the transnational order also, so is its enforceability even if in the practicalities, recognition is still necessary in the states where enforcement is sought as they (for very good reasons) maintain the monopoly of enforcement powers on their territories and still want a minimum of control.

The seat of the arbitration and its laws have here no longer much relevance except in aid of the international arbitration taking place on its territories unless a true public interest of the country of the seat became involved. Naturally, it should guard against a cowboy culture in arbitration on its territory or ban or dissolve any meetings in its country for public policy reasons in appropriate cases, but not much more. Injunctions could not go beyond this either. This approach is long borne out by the fact that even annulment of an award at the seat is no longer decisive in the transnational legal order and does not rule out recognition of the awards elsewhere or resumption of the same case in another country. Once the double exequatur was abolished by the New York Convention, the writing was on the wall and only those who still believe that all law emanates from states still hold to the old truths in this regard. Continue Reading…

Weekday News Wrap: Thursday, April 5, 2012

by An Hertogen

The Situation in Palestine

by Michael Kearney

[Michael Kearney is an LSE Fellow in the Law Department of the London School of Economics]

Michael Kearney guest blogs with us to share his knowledge of the Palestinian situation as an external consultant for the Palestinian human rights NGO Al-Haq.

“I heard from the Americans,” Abbas reports. “They said, ‘If you will have your state, you will go to the ICC. We don’t want you to go the ICC.'”

In a striking decision, issued shortly before he is due to step down in June 2012, Prosecutor Moreno-Ocampo of the International Criminal Court  has contrived to reject the existence of the state of Palestine. Writing in 2009 on behalf of Al-Haq, and advocating that the Prosecutor accept the Palestinian declaration, the point was made that while the existence of the state of Palestine was indeed moot for the purpose of international law and international relations generally speaking, there was adequate factual and legal justification for the ICC to accept Palestine’s article 12.3 declaration. It was suggested that ‘a determination by the Court that Palestine is a state that can engage with the Court would be valid and in line with the Court and the Statute’s statutory requirements.’

During the intervening years, Palestinian independence has increasingly been smothered, while Palestinian statehood has been increasingly consolidated. In the past month a collection of essays was published by Asser Press under the title Is There a Court for Gaza? A Test Bench for International Justice. In the foreword William Schabas asserts: ‘This volume asks: ‘Is There a Court for Gaza?’ The answer is a resounding yes. Indeed, there are at least two courts capable of addressing the armed conflict in Gaza that took place in December 2008 and January 2009: the International Court of Justice and the International Criminal Court. But neither of them has jurisdiction prima facie. The challenge, then, is to resolve the difficulties in establishing jurisdiction.’

That challenge took an unexpected twist yesterday with the publication by the ICC’s Prosecutor of a brief note which softly yet tortuously rejected the existence of the state of Palestine. The denial was cast as a sort of possibility, merely stating that ‘The Office could in the future consider allegations of crimes committed in Palestine’.

Perhaps the first point to recall is that the concluding paragraph in the note reminds us that there is indeed no procedure to block future Palestinian efforts at attempting to submit either another article 12.3 declaration or to work towards becoming a full state party to the Rome Statute…

Palestine and the Assembly of States Parties

by Kevin Jon Heller

As I noted in my previous post, the OTP has implied that it would accept a determination by the Assembly of States Parties (ASP) that Palestine qualifies as a state for purposes of the ICC’s jurisdiction.  That raises an interesting question: why have the Palestinians never (to the best of my knowledge) asked the ASP to make such a determination?  The ASP meets every year and can meet at any time when “circumstances so require” (Article 112(6)) at the Bureau’s initiative or at the request of 1/3 of the States Parties (ASP Rule #8) — 41 States Parties, at present.  I haven’t done the math, but I would be shocked if the ASP didn’t accept the Palestinian declaration, which would require — because the statehood issue is clearly a “matter of substance” — approval “by a two-thirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting” (Article 112(7)(a)).  In other words, at least 61 States Parties would have to show up at a meeting and 2/3 of those States Parties would have to vote to accept the declaration.

Such a determination by the ASP would, however, raise the question I alluded to in my previous post: would a determination be reviewable by the Court?  Dapo Akande asks that question in a recent post on the substance of the Palestinian declaration (which interested readers should definitely check out), but he doesn’t venture an answer.  Personally, I don’t see how the judges could review a determination that Palestine qualifies as a state for purposes of Article 12(3); nothing in the Rome Statute permits them to review any other decision by the ASP.

The Modern Lex Mercatoria and its Legitimacy

by Jan Dalhuisen

[Jan H. Dalhuisen is Professor at King’s College in London, the Miranda Chair of Transnational Financial Law at the Catholic University in Lisbon, and is Visiting Professor at UC Berkeley]

Professor Dalhuisen is guest-blogging with us this week on the transnationalization of private law. Links to his other posts can be found under “Related Posts” below.

What kind of legitimacy does the new lex mercatoria have? It is founded in fundamental principle, therefore in basic values, even in commerce very important, and otherwise in custom and practices themselves highly participatory, in party autonomy or in generally accepted principle of a more practical nature. It is not true that the law in commerce and finance is value-lite. Is that enough for its international legitimacy or should it go through some democratic process which suggests that even in international transactions there should be some scrutiny at state level or through parliaments? It is an argument that superficially appeals to many but is in error.

First, historically, private law was hardly the product of a democratic process, Roman law never was nor were hardly the great modern 19th Century civil codes. More importantly, even now, the common law is formulated by the courts. We also accept in conflicts law the law of any country and do not commonly enquire into the democratic legitimacy of national laws either. The argument concerns in particular policy and values and many believe that they can only emerge at the level of a (democratic) legislator but it would be a sad day indeed if values, social values in particular, could only enter private law though statutory amendment.  This would mostly be a long wait. Rather, it is well known that courts and practitioners in the daily application of the law move the law forward all the time and follow evolving fundamental principle. Continue Reading…

The Notions of Certainty, Finality and Predictability

by Jan Dalhuisen

[Jan H. Dalhuisen is Professor at King’s College in London, the Miranda Chair of Transnational Financial Law at the Catholic University in Lisbon, and is Visiting Professor at UC Berkeley]

Professor Dalhuisen is guest-blogging with us this week on the transnationalization of private law. Links to his other posts can be found under “Related Posts” below.

Reliance on transnational immanent law formation, even if supported by some treaty law, coupled with the concept of a dynamic contract and movable property law, naturally raises issues of legal certainty under the modern lex mercatoria even if the question of the hierarchy of norms is sorted out. In this connection it is often argued that there is at least certainty when domestic law is applied to international cases pursuant to the canons of conflicts of law, but this certainty, even if it results, can be of such a low quality that it destroys everything. It was already said that domestic law is seldom meant for international transactions and does not mean to serve their needs or dynamics. In any event, it cannot cover whole portfolios of assets in different countries, nor international cash flows or the movement of assets trans-border. Combinations of national laws must then be used about which there remains much doubt. The result risks remaining not only unsuitable, but indeed also uncertain.

Even if this is all true, there nevertheless remains the question of certainty under the new lex mercatoria to consider. Certainty itself is ephemeral in the law. We would not need ever more lawyers if it could be attained. There remains much doubt in the application of all law because the factual configurations differ all the time and we can have certainty only in pure repeat, therefore perhaps in conveyancing or in most traffic offenses, but not much else in a fast moving world. The cry for certainty is therefore ignorant of the world in which we live and is childish, as has often been pointed out (to start with Jerome Frank) but especially in transactions and payments, there is an overriding and public policy need for finality. Continue Reading…

Jerusalem Arbitration Center: Merchants of Peace

by Roger Alford

Last week I had the good fortune to attend a reception in Washington D.C. with various arbitration luminaries announcing the inauguration of the Jerusalem Arbitration Center.

With almost $5 billion in annual trade between Palestine and Israel, it is imperative to establish a neutral forum for resolving business disputes. JAC is established under the auspices of the International Chamber of Commerce. Zahi Khouri and Yara Asad of ICC Palestine and Oren Schachor and Baruch Mazor of ICC Israel were on hand to announce the partnership. JAC’s goal is to establish, in John Beechey’s words, “a truly neutral and independent forum.”

Catherine Rogers at Penn State has been actively involved in JAC’s creation, and she expressed to me her desire for arbitration to impact real people on the ground in conflict zones. As she put it,

“Israel is by far Palestine’s largest trading partner and, according to some estimates, Palestine is Israel’s second largest trading partner after the United States…. [W]hile politicians on both sides seem locked in an intractable battle against peace, peaceful exchanges occur every day between ordinary Palestinians and Israelis. Of course, some disputes arise out of these commercial transactions. In those disputes, Israelis have full access to the machinery of civil justice under Israeli law. Meanwhile, it can be exceedingly difficult for Palestinians to participate in the judicial proceedings in Israel, and Palestinian court judgments are generally unenforceable…. The JAC could provide a better alternative for Israeli-Palestinian exchanges.”

A video introducing JAC is available here. Kudos to all those involved in creating this new joint venture, which the ICC evocatively describes as the “merchants of peace” in the Middle East.

Which Organ of the ICC Decides Whether Palestine Is a State? (Updated)

by Kevin Jon Heller

As most readers probably know by now, the Office of the Prosecutor has finally — after three inexcusable years of inaction — officially rejected Palestine’s attempt to accept the ICC’s jurisdiction pursuant to Article 12(3) of the Rome Statute.  Politically, I think the OTP has made the right decision; the ICC has enough problems without interjecting itself into one of the world’s most intractable conflicts.  Legally, though, I’m not so sure: although I initially believed that Palestine could not qualify as a “state” for purposes of Article 12(3), this post by Bill Schabas convinced me that UNESCO’s acceptance of Palestinian membership means that Palestine does, in fact, have the right to accept the Court’s jurisdiction (and to accede to the Rome Statute generally).

I don’t want to debate the legal or political merits of Palestine’s declaration in this post.  Instead, I want to ask a question for which I simply do not have a definitive answer: which organ of the ICC gets to decide whether Palestine can accept the Court’s jurisdiction?  The OTP obviously believes that it makes the decision.  Amnesty International, however, disagrees: the BBC quotes Marek Marczynski, the head of the organization’s International Justice campaign, as claiming that the OTP’s decision “breaches the Rome Statute which clearly states that such matters should be considered by the institution’s judges.” I think Marczynski is wrong about that: nothing in the Rome Statute says that the judges get to decide whether an entity qualifies as a state for purposes of jurisdiction, at least in the first instance.  The problem is that nothing in the Rome Statute specifically entrusts that decision to the OTP, either.  Article 12(3) is silent on the issue, and although the OTP is responsible for deciding whether to an investigate a particular situation, that does not necessarily mean the OTP has the authority to decide whether an entity referring a situation qualifies as a state.

There is, of course, another important question for which there is no easy answer: if we assume that the OTP gets to decide whether Palestine qualifies as a state for purposes of Article 12(3), can the Appeals Chamber review that decision? Article 82 of the Rome Statute, which governs appeals of decisions other than verdicts and sentences, provides in paragraph 1 that “[e]ither party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence… [a] decision with respect to jurisdiction or admissibility.”  Whether Palestine can accept the ICC’s jurisdiction pursuant to Article 12(3) would seem to be “a decision with respect to jurisdiction.”  Moreover, Article 18(4), which governs appeals of admissibility decisions by the Pre-Trial Chamber, provides that “[t]he State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber, in accordance with article 82.”  There is obviously no ruling of the Pre-Trial Chamber concerning Palestine’s status, but Article 18(4) implies that the Appeals Chamber has the authority to review conflicts between the OTP and States concerning investigative decisions.  Still, the answer is anything but clear.

Finally, it’s also important to ask what role the Assembly of States Parties (ASP) should play in all of this.  Article 112(2) provides that the ASP shall “[p]rovide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court” and “[p]erform any other function consistent with this Statute or the Rules of Procedure and Evidence.”  It is certainly possible to argue that deciding whether an entity qualifies as a state falls within the purview of the ASP under Article 112; the ASP also seems to be the most logical candidate for making that decision, which is more political than legal.  In fact, the OTP seems to suggest that it would accept a decision by the ASP that Palestine qualifies as a state for purposes of Article 12(3), writing in its statement that “it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court” (emphasis mine).

I don’t know how to answer any of these questions.  In general, I think two interpretations of the Rome Statute are most plausible: (1) the OTP makes the initial decision concerning whether Palestine can accept the ICC’s jurisdiction, but that decision is reviewable by the Appeals Chamber; or (2) the ASP decides whether Palestine qualifies as a state for purposes of Article 12(3), and that decision is not reviewable by anyone.  I’m genuinely torn, however, between the two interpretations.

Readers?  Your thoughts?

UPDATE: In the comments, Hostage calls attention to an FAQ issued by the Registry concerning the Palestinian declaration.  The Registry takes the position in the FAQ that a “conclusive determination” on the applicability of Article 12(3) “would have to be made by the judges at an appropriate moment.”  The FAQ is not clear, unfortunately, concerning which chamber would make that determination or when the “appropriate moment” would be — although it seems to contemplate appellate review, because it acknowledges without comment the OTP’s belief that it was entitled to determine, at least in the first instance, “whether the declaration by the Palestinian National Authority accepting the exercise of the ICC meets statutory requirements.”

UPDATE 2: Amnesty International has issued a “Questions and Answers” statement that appears to back off from Marczynski’s claim that the OTP has breached the Rome Statute by unilaterally rejecting the Palestinian declaration.  The Q&A suggests that it would be better for the judges to make an impartial decision on the declaration, but points out that Article 19(3) of the Rome Statute, which allows the Pre-Trial Chamber to make a decision “regarding a question of jurisdiction or admissibility” that does not involve a specific case only at the request of the Prosecutor.  I’m not sure Article 19(3) is the only applicable provision, for the reasons discussed above.  But Amnesty is on much firmer ground with its Q&A than with Marczynski’s initial claim.

Weekday News Wrap: Wednesday, April 4, 2012

by An Hertogen

York University Faculty Torpedo $60 Million International Law Donation

by Julian Ku

The faculty of Osgoode Hall Law School at York University in Toronto are either pretty gutsy, or totally insane…

After eight months of controversy, York University has dropped plans for a joint international law program with Jim Balsillie’s think tank, having failed to convince its law professors that academic freedom would be guaranteed.

And the collapse of the deal underscores how tricky public-private partnerships with the Ivory Tower can be, even as Queen’s Park is calling on the private sector to invest more in higher learning.

York officials announced the $60 million deal was off late Monday, just hours after the faculty council of Osgoode Hall law school voted 34 to 7 against working with Balsillie’s Centre for International Governance Innovation (CIGI) to create 10 research chairs in international law and funding for 20 PhD students. Eight members of the council abstained.

I don’t know the details, but $60 million for the study of International Law! Wow! And it’s in Canadian dollars, which is maybe the safest currency in the world!  Hey Mr. Balsillie, Osgoode Hall may not need your money, but [insert every school ranked below Harvard and Yale], America welcomes your loonies!

Matt Bors Says It All

by Kevin Jon Heller

Targeting and Causation

by Deborah Pearlstein

The past few weeks have seen some resurrection of the old claim that targeted killing operations have increased under the Obama Administration because detention of participants in armed conflict (as the United States defines it) has become too fraught with legal difficulty. Jack Goldsmith has been making that causal claim on the speaking circuit for his new book, Power and Constraint: The Accountable Presidency After 9/11. And this week the Wall Street Journal joins the bandwagon, writing that the “Obama Administration kills every terrorist with missiles from the sky because it fears political embarrassment from holding them.”

Let’s ignore for a minute the chronic lack of public (or, as far as I can tell, non-public) empirical support for the claim that this accurately describes the motives or reasoning process of any relevant decision-maker inside the U.S. government. We could also ignore the public statement of White House counterterrorism adviser John Brennan, who called this notion “absurd” in his Harvard speech last September. As he put it then:

“Nevertheless, some have suggested that we do not have a detention policy; that we prefer to kill suspected terrorists, rather than capture them. This is absurd, and I want to take this opportunity to set the record straight. As a former career intelligence professional, I have a profound appreciation for the value of intelligence. Intelligence disrupts terrorist plots and thwarts attacks. Intelligence saves lives. And one of our greatest sources of intelligence about al-Qa’ida, its plans, and its intentions has been the members of its network who have been taken into custody by the United States and our partners overseas. So I want to be very clear—whenever it is possible to capture a suspected terrorist, it is the unqualified preference of the Administration to take custody of that individual so we can obtain information that is vital to the safety and security of the American people. This is how our soldiers and counterterrorism professionals have been trained. It is reflected in our rules of engagement. And it is the clear and unambiguous policy of this Administration.”

What I’m most puzzled by is what exactly the WSJ et al. think is playing out in operational decision-making. So, is the suggestion that Brennan is lying about these rules? Or that, notwithstanding the military rules of engagement that Brennan describes, military drone operators are making decisions to kill people they could otherwise capture in violation of those rules (and presumably the international law on which they’re based)? That the CIA is conducting these operations unbound by any of those rules, so free to act on their own assessment of kill v. capture incentives in each case? Or is the notion that the President’s decision not to invade, say, Somalia, for the purpose of capturing suspected terrorists is a decision made principally not because, say, our military is already stretched a bit thin, but because he wouldn’t know what to do with the influx of Somali prisoners seized in such a conflict?

Strangely, the single example the Journal points to in an apparent effort to support its view is the Warsame case – the Somali national captured by the U.S. military somewhere in the Gulf and later transferred to New York for federal prosecution on terrorism-related charges. Warsame was held on a ship for two months before being sent to New York for prosecution, the Journal reasons, because Obama didn’t want to send him to Guantanamo. So Warsame’s capture is meant to prove, that, um, whomever we have operating in the Gulf had every incentive to kill and no incentive to capture him? Ok, maybe it was just meant to establish that Obama made the call to hold him on the ship instead of transfer him to Gitmo because Obama doesn’t like Gitmo? Well that is surely true; he’s said as much repeatedly. So have many of our most distinguished military strategists – Petraeus among others – who see Gitmo as a net strategic cost in global counterterrorism efforts. Besides, if Obama and those who captured Warsame thought Warsame had actually committed the crimes of which he is accused, why would they send him to Gitmo? Congress has forbidden any detainees transferred away from there for prosecution in criminal court. And the military commission process has proven an enormously expensive, and still legally fraught, way to pursue convictions (the handful that exist are mostly the result of plea bargains) that overall seem to produce far shorter sentencing periods than those regularly obtained through the federal criminal process. In the meantime, that criminal process is the one through which the Obama Administration has detained dozens since taking office, indicting terrorist suspects at about twice the rate the Bush Administration did. (For more on the prosecution stats, see this. )

To be clear, I don’t mean to be defending all the detention and targeting decisions made by the Obama Administration. As I’ve written before, a host of questions surround the legality of Warsame’s 2-month detention preceding his indictment; legal questions, and significant strategic concerns, continue to surround U.S. drone operations as well. But I’ve tended to think – and I don’t think Jack disagrees – that the Obama Administration has increased the use of drone strikes because it thinks the program has been effective in disrupting (perhaps destroying) Al Qaeda in Afghanistan and Pakistan. That is, even if the detainees had lost their cases in Rasul, Hamdan, and Boumediene, drones would be with us in force. That alone gives us plenty to discuss. And leaves me still thinking that the causal connection Jack et al. would like to see between detention and targeting these days is more theoretical than real.

The Operation of the Modern Lex Mercatoria: The Hierarchy of Norms

by Jan Dalhuisen

[Jan H. Dalhuisen is Professor at King’s College in London, the Miranda Chair of Transnational Financial Law at the Catholic University in Lisbon, and is Visiting Professor at UC Berkeley]

Professor Dalhuisen is guest-blogging with us this week on the transnationalization of private law. Links to his other posts can be found under “Related Posts” below.

It was submitted that the essence of the transnationalization of private law is the consideration of different sources of law. They may conflict. This would suggest a need for a hierarchy, a problem that also surfaces in foreign investment law. In the lex mercatoria we may further find (as in foreign investment law), however, that the law, in as far as we have it, is still insufficiently complete or underdeveloped at the transnational level.  When no clear transnational legal regime emerges, we are therefore still relegated to a domestic law as the default rule, in private law found on the basis of the ordinary conflict rules.

To me that is fully acceptable and makes for a complete system for those who still think in those terms, but there are two observations to make. First, the room for the transnational sources will progressively expand and in international transactions the bias must be in their favour. Second, even where domestic law applies in international cases as the subsidiary or default rule, it becomes part of the transnational law or modern lex mercatoria and must fulfil its place therein.  In other words, if it does not make any sense or does not serve justified needs it will be adapted. It leads to the important conclusion that the application of English law in international cases is not the same as the application of English law in domestic cases. That then goes for all domestic laws.

In truth and upon a more proper analysis (and perhaps unknown to themselves), this is the way international arbitrators now increasingly operate in finding the applicable law and it is at the heart of the modern notion of the lex mercatoria.  Arbitrators will apply fundamental principles first, then mandatory custom and practices, then mandatory treaty law to the extent existing, then mandatory general principles, then party autonomy, subsequently directory rules of custom, treaty law and general principles, and finally, if all fails, domestic private law.  A choice of a domestic law by the parties moves it up from the residual level or default level to the level of party autonomy but no higher and fundamental transnational principles, mandatory custom, treaty law and general principle still prevail over it.  Again this chosen local law would function in the transnational legal order and be adapted accordingly in its lex mercatoria.  A choice of a domestic law by the parties in international transactions covers therefore much less ground than people often think and operates differently as I explained in my contribution for the Liber Amicorum for Lord Bingham. Continue Reading…

The Modern Lex Mercatoria and its Dynamism

by Jan Dalhuisen

[Jan H. Dalhuisen is Professor at King’s College in London, the Miranda Chair of Transnational Financial Law at the Catholic University in Lisbon, and is Visiting Professor at UC Berkeley]

Professor Dalhuisen is guest-blogging with us this week on the transnationalization of private law. Links to his other posts can be found under “Related Posts” below.

In my last post, I said that the modern transnational lex mercatoria is dynamic, does not depend on statutory or treaty law, is not statist and allows for immanent or informal law formation through the market place, therefore by the participants themselves.  That is foremost through custom and practice, in fact the normativity of all routine on which any society depends for its proper functioning. Party autonomy follows. Such a law is also built on other sources, foremost fundamental principles and its set of values, but also on general principles developed in commerce and finance in different legal systems. This has considerable consequences for our view as to how the modern law works in international commerce and finance. It is very different from the civil law codification model and its method of interpretation. I already said that in contract, good faith may thus acquire quite a different profile in business and consumer transactions. In the first it may extend protection, in the latter it may minimize it when the contractual road map and risk distribution requires a much more literal interpretation. But another key insight is that with these different participatory sources of law, the modern lex mercatoria is also likely to be dynamic and moves away from a static notion of contract and movable property law.

Especially in duration contracts, it is clear e.g. that the moment of the conclusion of the contract, if it can at all be clearly determined, is not conclusive any longer of the rights and duties of the parties.  There are pre- and post-contractual rights and obligations which emerge all the time out of the behaviour and reasonable expectations of the parties. Thus conduct and reliance are here the key, not the formal mating dance of offer and acceptance. Will and intent acquire a much more objective meaning also. They are in fact often irrelevant and in any event in a corporate environment difficult to determine where the one who has the signing authority often knows little of the content, different departments are involved in the negotiation of different parts, and the text as whole may emanate from an outside law firm.  Object and purpose are then more relevant and perhaps easier to handle as more objective notions.  Cooperation and fiduciary duties, especially in situations of dependency, may further be implied.  This is the world of modern contract theory at the heart of which there is a dynamic concept of contract and of the rights and obligations thereunder and a firm distinction as to the nature of the parties, especially between professionals or consumers.

This dynamic contract model is quite different from what is mostly still taught under national law in national law schools, where we still pay tribute to offer and acceptance notions, a fixed moment as of which a contract is concluded and in contract interpretation to an exalted idea of the will, often in a psychological sense. This presents an atavistic model of contracting that is entirely out of date, even domestically. The newer model, at least in the professional sphere, is based on conduct and reliance, and on a substantial degree of risk acceptance beyond the contractual risk allocation unless the result becomes manifestly unreasonable which in business will not arise soon and would have to take into account the overall position of the complaining party and not merely the situation of advantage or disadvantage under the particular contract. Continue Reading…

Henry Ford — Not Such a Good Role Model

by Kevin Jon Heller

President Obama is set to give a speech later today criticizing Paul Ryan’s budget plan.  That’s all well and good — the plan is a study in right-wing extremism.  But one of Obama’s historical references is more than a little problematic.  From his prepared remarks (my emphasis):

“In this country, broad-based prosperity has never trickled-down from the success of a wealthy few. It has always come from the success of a strong and growing middle class. That’s how a generation who went to college on the GI Bill, including my grandfather, helped build the most prosperous economy the world has ever known. That’s why a CEO like Henry Ford made it his mission to pay his workers enough so they could buy the cars that they made. That’s why studies have shown that countries with less inequality tend to have stronger and steadier economic growth over the long run.”

Henry Ford might have paid his workers a good salary, but he was also a notorious anti-semite and supporter of the Nazis, from whom he accepted the Grand Cross of the Golden Eagle in 1938, Germany’s highest honor for foreigners.  (Hitler had a photo of Ford on the wall of his office in Munich.)  Here’s a snippet from the Jewish Virtual Library’s entry on a series of booklets that Ford published when he was the editor of the Dearborn Independent in the early 1920s, entitled “The International Jew”:

The International Jew portrayed Jews as monolithic, malicious schemers plotting to control the planet. “If there is one quality that attracts Jews, it is power,” the book stated. “Wherever the seat of power may be, thither they swarm obsequiously.”

The Dearborn Independent saw Jews as carrying out “revolutionary programs to break up the present control of society.” These “revolutionary programs” revolve around economic control: the Jewish plan is “to control the world, not by territorial acquisition, not by military aggression, not by governmental subjugation, but by control of the machinery of commerce and exchange.” According to The International Jew, “it is not merely that there are a few Jews among international financial controllers; it is that these world-controllers are exclusively Jews.” The book claimed that “the motion picture influence of the United States, of the whole world, is exclusively under the control, moral and financial, of the Jewish manipulators of the public mind.”

The International Jew did not portray Jews as individuals, but as a single-minded, calculating cabal. Conflict among Jews, no matter how real, was painted as a sly trick, part of the Jewish plot. Even the conflict between socialist Jews and capitalist Jews was denied. Jewish socialists and Jewish businesspeople were believed to be working in tandem, “with Jewish capital at one end of the Gentile working scheme putting the screws on the manufacturers, and with Jewish agitators and disruptionists and subversives at the other end of the Gentile working scheme putting the screws on the workmen.”


According to The International Jew, demonstrably true Jewish accounts of pogroms in Russia were nothing but fabrications. “This propaganda of pogroms – ‘thousands upon thousands of Jews killed’ – amounts to nothing except as it illustrates the gullibility of the Press,” the book stated. “No one believes this propaganda and governments regularly disprove it.” Such statements foreshadowed the pernicious lies spread today by Holocaust deniers.

The International Jew blamed nearly all the troubles it saw in American society on Jews. “Whichever way you turn to trace the harmful streams of influence that flow through society, you come upon a group of Jews,” it claimed. Even problems with the “national pastime” were attributed to Jewish influence: “If ‘fans’ wish to know the trouble with American baseball, they have it in three words – too much Jew.”

President Obama might want to think twice about citing Henry Ford as an economic role model.

Is “International Law” the Same as “Foreign Law”?

by Julian Ku

The Telegraph commits one of my pet peeves in this headline and article on the Greek Debt Crisis:

Greek talks with international-law debt holders hit impasse

Despite earlier this year forcing most creditors to take losses of 75pc on the debt, Athens has still to deal with its bonds which were issued under international, as opposed to domestic, law.

The Greek government said it held a series of meetings last week with investors holding bonds under foreign law with a face value of about €20bn, in an effort to bring them into the deal. The bondholders were asked to vote on whether a majority of investors should be allowed to enforce the losses on a minority by activating “collective action clauses”, which were deployed in the wider debt restructuring deal.

I seriously doubt Greek bonds were issued under “international law”. Rather, I am sure they were issued under the law of some other country (the U.K.?).  So why does even the Telegraph refer to it as “international law.” Is it a Britishism? Someone help me out here….

Weekday News Wrap: Tuesday, April 3, 2012

by An Hertogen

International Organizations Becoming More Popular As Alternate Fora for U.S. Civil Rights Groups?

by Julian Ku

I sense there is a trend of domestically-focused US civil rights and labor groups seeking to make their case in international fora.

1) CCR announces that the Inter-American Commission of Human Rights has accepted a case from a Guantanamo detainee.

2) Labor and civil rights groups have filed a complaint in the International Labour Organisation challenging Alabama’s immigration law.

3) The NAACP has brought its voter-id case to the U.N. Human Rights Commission.

These actions generally follow failures (or likely failures) to win their cases in U.S. courts.  Interestingly, none of the bodies mentioned here have any binding authority over the U.S., but that is not the point.  They can and will put some international attention on U.S. policies, and perhaps rally a little bit of domestic concern as well.  Not much concern, but perhaps just enough to make it worth the rather substantial cost and effort.

Does the Libya Precedent Block a Syria Intervention?

by Julian Ku

Tod Lindberg of the Weekly Standard worries that the “pristine” legality of the Libya intervention (under international law, at least), is preventing the U.S. from taking similar actions again Syria.

As matters stand, intervention in Syria would be anything but a “model.” The real question for the Obama administration, however, is whether Libya has set a standard for intervention so pristine as to render the United States incapable of action in the absence of perfect conditions. Time is running out for the administration to demonstrate otherwise.

Harold Koh offered at the ASIL meeting a nuanced (and somewhat unclear) explanation of the U.S. government’s current policy toward Libya. Here is what I take as his key analysis of the effect of Libya on current policy on Syria:

In so saying, we specifically see no inconsistency between the U.S. approach to Syria and the U.S. approach to Libya. Neither our legal theories, nor our strategic objectives, nor our moral commitments have changed. What is different are the facts. As President Obama observed several weeks ago, in Libya we had “a UN Security Council mandate . . . and we knew that we could execute very effectively in a relatively short period of time.” As difficult as Libya was, the President added, “[t]his is a much more complicated situation. . . . [T]he notion that the way to solve every one of these problems is to deploy our military, that hasn’t been true in the past and it won’t be true now.” With respect to Libya, the Security Council of course adopted two important Resolutions, 1970 and 1973. The proposed Security Council resolutions on Syria have differed substantially from 1970 and 1973 in their terms. Moreover, from a practical perspective, it is by no means clear that the type of actions taken to protect Libyan civilians would have the same effect in Syria.

I don’t know about the practical difference an intervention would make in Syria and Libya. But I notice Koh has elided the (fairly justifiable) complaint by China and Russia that NATO did not exactly stick to “protection of civilians” in its NATO intervention, which suggests they won’t buy that cover story this time.  Which means Lindberg is probably right. There will be no Security Council authorization and therefore there will be no Syria intervention.

The Sources of the Modern Transnational Lex Mercatoria

by Jan Dalhuisen

[Jan H. Dalhuisen is Professor at King’s College in London, the Miranda Chair of Transnational Financial Law at the Catholic University in Lisbon, and is Visiting Professor at UC Berkeley]

Professor Dalhuisen is guest-blogging with us this week on the transnationalization of private law. Links to his other posts can be found under “Related Posts” below.

In my last post I said something about the need for and re-emergence of transnational private law in international commerce and finance. This law is immanent in principle, created by the international market place and its participants itself, where necessary supported by treaty law (like the Vienna Convention on the International Sale of Goods), and in practice formed and operating much like public international law with its different sources, as may be shown particularly in its foreign investment law branch. That is the modern lex mercatoria. It is very different therefore from the law of the codification, but similar to what prevailed earlier. It is now in its formation and operation in fact closer to the common law which is not statist per se nor systematic and academic either and less averse to other sources of law. It is more pragmatic and moves from case to case on the basis of practical needs, even if there is now also much legislation and sometimes even a kind of code, especially the uniform commercial code or UCC in the US.

Whatever its name, the UCC is not, however, a codification in the European sense. It does not monopolise the field and does not push out other sources of law. Rather in its Section 1-103, the UCC makes it very clear that it promotes not only custom but also the common law, equity and the law merchant besides it. In England, the Sale of Goods Act until its reformulation in 1979 also still referred to the law merchant, even if in England its deletion in 1979 and also the narrowing approach to custom especially if international, shows that commercial law has become much more nationalistic, also in England, unwisely so in my view, but not quite as much as on the European Continent. Continue Reading…

What do we mean by the Transnationalization of Private Law?

by Jan Dalhuisen

[Jan H. Dalhuisen is Professor at King’s College in London, the Miranda Chair of Transnational Financial Law at the Catholic University in Lisbon, and is Visiting Professor at UC Berkeley]

Professor Dalhuisen is guest-blogging with us this week on the transnationalization of private law. Links to his other posts can be found under “Related Posts” below.

Opinio Juris has not so far dealt with matters of private law and its transnationalization, harmonization or unification, especially important at the operational level in international commerce and finance.  If it is true that the international flows in goods, services and money now far exceed the GDP of even the largest countries, then the question must be asked why it is that in the orthodox view, these international flows must still be controlled and covered by a national law, which is then found under the canons of what is called private international law or conflicts of law.

It is not logical but it is the consequence of the 19th Century view that all law was the product of a national culture and that there was no law beyond it. Even common law countries fell for this. In civil law countries this led to the further idea that this law, even private law, would issue from government, hence the codifications. It allowed at the same time an academic systematic approach to dominate and led on the whole to a severe form of legal formalism based on a systemic interpretation of these texts which were considered to be complete by themselves and covering all eventualities. In particular, codification of this nature was suspicious of and left not much room for other sources of law, like custom and practices, general principles (except if underlying these codes) or even party autonomy.  They could only operate by license of these codes. Even fundamental principle or newly established social values were no source of law except when these codes referred to them or expressed them. There were no values or rationality beyond them. This also captured commerce, even when international, and it had to conform to these national legal systems. It followed that international transactions were legally pulled apart. Continue Reading…

Introducing Guest-Blogger Jan Dalhuisen

by Julian Ku

We are pleased and honored this week to host Professor Jan Dalhuisen, Professor of Law at King’s College London, a visiting professor at the University of California Berkeley, and the Miranda Chair at Catholic University Lisbon.  Professor Dalhuisen will share some thoughts on a topic we too often ignore here at Opinio Juris: the transnationalization of private law.

Professor Dalhuisen graduated from the University of Amsterdam, where he also received his PhD, and from the University of California at Berkeley. Prior to entering the academy, he served as an in house counsel to the oil and gas industry, thereafter as a senior investment banker in London. He is a member of the NY Bar, a frequent international commercial and foreign investment arbitrator, a Fellow of the Chartered Institute of Arbitrators in London,  a member of the ICSID Panel of Arbitrators in Washington, a member of the Advisory Board of Linklaters in London, and Of Counsel to the Miranda law firm in Lisbon.

He is the author of Dalhuisen on Transnational and Comparative Commercial, Financial and Trade Law (4th Ed. 2010,  Hart Publishing Oxford), and Dalhuisen on International Insolvency and Bankruptcy (Matthew Bender), several other books and numerous articles.

Welcome Professor Dalhuisen!

Weekday News Wrap: Monday, April 2, 2012

by An Hertogen

Chevron-Ecuador: The Jarndyce v. Jarndyce of the 21st Century

by Julian Ku

Here is an excerpt from my report on the Chevron-Ecuador Panel at this year’s ASIL meetings, published over at

In my view, the best way to understand Chevron v. Ecuador is as a marriage gone horribly wrong, where, as usual, the children are the biggest losers.  In this case, the “children” are theLago Agrio plaintiffs, most of whom are part of an Ecuadorian indigenous group and, as Prof. Judith Kimlinger of CUNY reminded the audience, the  real injured parties in this case.  These plaintiffs have borne the vast brunt of physical and environmental injuries resulting from the partnership between Chevron and Ecuador.   For most of the time that Texaco (which was acquired by Chevron after all of the key events had already occurred) operated in Ecuador, they did so in an effective partnership with the PetroEcuador, the state-owned enterprise formed by the Ecuadorian government.   This marriage/partnership lasted for decades, before it was terminated in 1990.  And although there was a “separation agreement” that included provisions to remediate areas that suffered pollution, both parties have accused the other of failing to fulfill its duties.  Things began to get out of hand in the late 1990s when a new law was passed in Ecuador making the domestic litigation against Chevron possible, and ultimately resulting in the massive (possibly fraud-laden) $18 billion judgment.

Disarray at the ECCC

by Kevin Jon Heller

I think it’s safe to say that the ECCC is in serious trouble, despite having an excellent International Co-Prosecutor in Andrew Cayley and many intelligent, dedicated staff.  As readers probably know, the international reserve co-investigating judge, Laurent Kasper-Ansermet, is resigning his position because interference by the Cambodian government is making it impossible for the Tribunal to investigate new cases.  Kasper-Ansermet has now released a legal document that he has styled a “Note of the International Reserve Co-Investigating Judge to the Parties on the Egregious Dysfunction Within the ECCC Impeding the Proper Conduct of Investigations in Cases 003 and 004.”  The Note essentially catalogs everything that is presently wrong with the Tribunal.  I can’t cut-and-paste from the document — which is really annoying, and all too common with documents released by international tribunals — but here is a list of its major headings:

1. Judge You Bunleng’s refusal to acknowledge or support Judge Kasper-Ansermet’s standing as International Co-Investigating Judge.  (Bunleng is the National Co-Investigating Judge.)

2. Disagreement before the Pre-Trial Chamber pursuant to Internal Rule 72.  (Rule 72 governs disagreements between the investigating judges concerning investigations.)

3. Irregularities in the disqualification process of Judge Prak Kimsan.  (Prak Kimsan is the President of the Pre-Trial Chamber.)

4. Refusal to place any document by the International Co-Investigating Judge on case-file.

5. Refusal for civil party to access case-file after an Order granting admissibility.

6. Withdrawal of the OCIJ seal.

7. Obstruction to the internal investigation.

8. Unavailability of drivers and transcribers for investigative missions.

9. Non-cooperation from the Witness/Experts Support Unit.

10. Improper procedures before the Rules and Procedure Committee.

I have no idea what the legal basis might be for Kasper-Ansermet’s “Note.”  But it’s an important document nonetheless, one that provides a unique — and uniquely disturbing — glimpse into the inner workings of the ECCC.  Read it only if you have a very strong stomach.

Hat-Tip: Polina Levina.

Pluralism v. Harmonization: National Adjudication of International Crimes

by An Hertogen

The VU University Amsterdam is pleased to announce it will hold a conference on international criminal law titled ‘Pluralism v. Harmonization: National Adjudication of International Crimes.’ Opinio Juris’ own Kevin Jon Heller and recent guest contributors Mark Drumbl and Jens Ohlin are among the impressive line-up of speakers.

The event will take place at the KNAW’s Trippenhuis in the center of Amsterdam on 14 and 15 June 2012. The conference is part of the university’s ICL research project Common Civility, and its main objective is to explore the background and the consequences of ICL’s fragmentation at the international and national level.

Full details and the registration form are available at the conference website.