Archive for
June, 2012

Weekend Roundup: June 23 – 29, 2012

by Jessica Dorsey

This week on Opinio Juris, Kevin Jon Heller continued coverage of the Melinda Taylor situation in Libya, pointing out a special report in the Guardian detailing her detention and that so far, the “non-apology apology” issued by the ICC has not helped the situation. In other ICC-related news, he pointed out John Bellinger’s editorial on the Court at 10 years old. Kevin additionally gave an informative look at how Amnesty International and Human Rights Watch do not, in fact, ignore labor rights, as Kathleen Geier might have us believe and pointed us to his playlist of the best anti-war songs ever.

Peter Spiro followed a couple of US Supreme Court stories looking at them from an international law perspective, including how the Court studiously avoided it entirely in the recent Miller v. Alabama case (striking down laws mandating juvenile offenders be sentenced to life without parole) and calling attention to Justice Scalia’s dissent in the SB 1070 case.

In other US news, Julian Ku pointed out that on the same day the Supreme Court ruled on the Affordable Health Care Act, other employees in Washington were debating the UN Convention on the Law of the Sea ratification during a Senate Foreign Relations Committee hearing and highlighted a letter to the editor at in the Wall Street Journal that previewed China’s argument about the dispute involving the Scarborough Shoal/Huangyan Island. Additioanlly, Duncan Hollis put out an open sollicitation for novelists looking for advice on international law in response to Brad Thor’s new novel, Full Black.

This week, we hosted a Symposium for the Yale Journal of International Law’s Volume 37:2, wherein two articles from the issue were discussed at length. First, in Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law, Margaux J. Hall and David C. Weiss discuss how international human rights law can inform and guide policy decisions regarding climate change adaptation. Hall and Weiss introduced their article with a post here and Bonnie Docherty and Tyler Giannini offer comments regarding climate change refugees, and specifically how human rights can affect the underlying principles of a climate change refugee instrument here.

Robin Kundis Craig discusses the inherent temporal complexities related to climate change as an example of how complex the human rights approach to climate change could be and discusses the role and burden of women and girls in adapting to climate change and J.B. Ruhr also adds to the discourse raising many questions regarding the issue of whether the international right to equity in climate change is substantial or procedural.  Siobhan McIneney-Lankford contributed thoughts regarding the value added of human rights law with respect to climate change and Hall and Weiss respond to the comments raised by the other posts here.

The second article of the Symposium is Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Accept Trade Restrictions Justified by Noninstrumental Moral Values, wherein Robert Howse and Joanna Langille analyzed in how far countries can use animal welfare concerns and morals, generally, to justify restrictions on international trade under the law of the WTO. The authors begin by introducing their article here and as a first response, Simon Lester discusses the seal dispute as it related to the boundaries of international trade law.

Isabel Feichtner adds an analysis of the article focused on a critical look at TEFU and European regulations before Tamara Perisin pointed out a few subtleties about which she disagrees with the article’s authors and opens several questions for discussion regarding the aims, coherence and necessity of the EU’s seal product regulations. Howse and Langille respond to the comments on their article in a post here.

And last but not least, it’s not too late yet to participate in our readers’ survey and enter the sweepstakes to win a $100 Amazon gift voucher.

Thank you very much to our guest contributors and have a nice weekend!

There Is Still Time to Complete Our Readers’ Survey

by An Hertogen

Dear all,

If you haven’t had a chance yet to complete our Readers’ Survey, there is still time to do so! We  want to know what our readers think about how we’re doing and where we can improve. You can access the survey through this link or through the button on the right side bar of the blog.

The survey shouldn’t take more than 10 minutes to complete, and if you wish you have the opportunity at the end to enter your e-mail address in the draw to win a $100 Amazon gift voucher.

Thank you very much in advance from the Opinio Juris team!

Best Anti-War Songs Ever?

by Kevin Jon Heller

One of my favorite playlists on my iPod is a collection of anti-war songs from the Vietnam era.  Even though I was alive for only some of it, the mid-60s/early 70s produced my favorite music — much to the delight of my father, who was a hippie at the time and doesn’t understand why I relate so deeply to the music of his generation.  (The answer, I think, is that it was the last great era of mass protest against war in the U.S.)  In any case, here are my six favorite anti-war songs from that era, in chronological order:

And a bonus 70s lefty song: Paul Revere & The Raiders, Indian Reservation (1971)

Readers, what are your favorite anti-war songs — Vietnam era or otherwise?  I need to update my playlist.

Weekday News Wrap: June 29, 2012

by An Hertogen

YJIL Symposium: Howse and Langille Respond to Comments on Permitting Pluralism

by Robert Howse and Joanna Langille

Robert Howse is the Lloyd C. Nelson Professor of International Law at New York University School of Law. Joanna Langille is a 2011 graduate of New York University Law School.]

This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below.

We would like to thank Professors Perisin, Lester, and Feichtner for taking the time to comment on our piece. Their remarks are extremely thoughtful, and in some instances help us to clarify our claims. We have also had the benefit of their own thinking and writing on this case in preparing our article. Finally, we would like to thank YJIL for organizing this Symposium.

Response to Professor Perisin:
Professor Perisin first suggests that the aim of the EU seal products ban is to protect the fox and mink industries within the EU. This raises the issue of how one ascertains whether the aim (or motive) of a measure is protectionist for purposes of WTO law. It would be helpful to understand better the methodology on the basis of which she claims that this is the likely aim of the measure. For example, is it based on legislative history that we somehow missed? Or were there sizable campaign contributions from the mink and fox fur industries to MEPs?

We also note that there is evidence that the EU has imposed significant regulatory control on the way in which animals are treated in the EU’s own fox and mink industries. The EU has, in the past, taken legislative action to regulate hunting and trapping, such as the EU’s prohibition on the use of leghold traps. It has also subjected fox and mink farming to the general requirements for the protection of animals kept for farming purposes. The EU has demonstrated that it is willing to regulate the domestic fur industry to minimize animal cruelty.

In her second major critique, Professor Perisin argues that determining what constitutes cruelty to animals (in the moral sense) is a scientific issue. This is a ground of deep disagreement between Professor Perisin and ourselves. Our analysis of the normative basis of animal welfare is intended to show that whether a given level or kind of animal suffering crosses the cruelty threshold is ultimately a moral question, one of conscience, of “beliefs that per se cannot be scientifically proven.” Professor Perisin characterizes the concern with the welfare of seals as based on “irrational, emotional attitudes.”
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China’s International Law Argument on the Scarborough Shoal/Huangyan Island

by Julian Ku

Interesting letter to the editor at the WSJ, defending China’s claim to the disputed island/shoal/reef in the South China Seas. It is a good preview of China’s international law argument as well as its view that UNCLOS is largely irrelevant to the dispute.

To assert that China “invented” history is a result of ignorance of history. China acquired sovereignty over Huangyan Island through discovery of and presence on the island before anyone else. Hundreds of years of jurisdiction has consolidated China’s sovereignty over the island. Historic and legal evidences are explicit, clear, complete and thorough, as proved by official documents, local chronicles and official maps throughout Chinese history. China’s sovereignty over Huangyan Island has long been recognized and respected by the international community and had not been disputed by the Philippines. On the contrary, the Philippine claim over the island has never been recognized by any other country.

We doubt if the author of the article really understands the U.N. Convention on the Law of the Sea. It, in its preamble, clearly states that its purpose is to establish, with due regard for the sovereignty of all states, a legal order for the seas and oceans. The convention does not contain any provision that concerns alteration of land territory of any country or empower any country to extend its exclusive economic zone (EEZ) to another country’s territory. The convention is by no means a law that determines territorial ownership. The Philippines has made territorial claims on the ground of “Huangyan Island is within the Philippines’ EEZ, which, as per the U.N. Law of the Sea Convention, extends 200 nautical miles off the coast” represents abuse and misinterpretation of the convention based on its unilateral interests.

This is actually a similar argument to the kind of argument the UK is making over the Malvinas/Falkland.  It is not about UNCLOS, but sovereignty, and sovereignty is largely a question of historical research.  I still don’t buy it, but it is a pretty respectable argument.

YJIL Symposium: Beyond the (Cute) Face of the Matter: Aims, Coherence and Necessity of the EU Seal Products Regulations

by Tamara Perisin

[Tamara Perisin is a member of the faculty of law at the University of Zagreb]

This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below.

The article by Rob Howse and Joanna Langille on the EU Seal Products Regulations goes far beyond a case study on a challenged measure and pending dispute. The article places the WTO challenge in the context of the development of a regulator-friendly world trading scheme sensitive to Members’ values, such as animal welfare. At the core of the article lies a pluralist vision of the WTO allowing diversity and a high level of protection of non-protectionist aims. This is a vision to which I also personally subscribe.

However, beyond the underlying premises of the article, which I fully support, there are subtleties in the analysis of the particular EU measures which lead me to some different conclusions from those Howse and Langille reach. These conclusions, though, are not intended to endorse seal hunting. In this online symposium, I would like to open up several questions for discussion.

As a preliminary point, I have to admit that my views of the EU Seal Products Regulation and its Implementing Regulation are influenced by the legality and legitimacy problems which these measures face internally, within the EU. Both Regulations are currently under challenge before the ECJ as they might be contrary to the principles of conferred competences, subsidiarity and proportionality. The Seal Products Regulation was adopted on the basis of Article 114 TFEU which is supposed to serve for the establishment and functioning of the internal market. The EU legislature interpreted this legal basis very broadly to regulate a matter which is not very connected to the internal market, but (arguably) achieves animal health or moral aims for which the EU does not have the competence. Broad interpretations of this competence leave little room for any diversity, pluralism, and decision-making at levels closer to citizens (which are among the EU’s basic principles). So an entirely pluralist view actually goes against EU regulations in this area, as EU Member States themselves would have chosen different regulatory solutions for seal protection had they been left with that choice.

As regards the measures’ compliance with WTO law, this comment relies on the detailed analysis in Permitting Pluralism, and just focuses attention on the aims, coherence and necessity of the measures.
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YJIL Symposium: Non-Instrumental Public Morals Justification of Trade Restrictions: A Comment on Howse and Langille

by Isabel Feichtner

[Isabel Feichtner is a professor of law and economics at Goethe Universität Frankfurt]

This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below.

Robert Howse’s and Joanna Langille’s article on the Seal Products Dispute is a truly admirable piece of normative doctrinal scholarship. The authors do not hide their preferences with respect to animal welfare and the protection of seals in particular. Their propositions as to the interpretation of WTO law are, however, not merely guided by this specific policy preference. Instead their argumentation is supported by a larger vision of global governance and the proper balance between international trade law and domestic regulatory autonomy, all the while thoroughly grounded in the WTO’s own case law.

Having been consistently inspired and convinced by the writings of Rob Howse on the WTO I am not the one to argue with the authors’ reconstruction of the trade regime that emphasizes the need for deference to domestic regulatory choices and that wishes (where possible) to limit the disciplines of trade law to prohibitions of discrimination. Thus, I will not offer a fundamental critique. Instead I will take up what intrigues me most in their article — the notion of “non instrumental public morals justification” – and raise two questions: first whether the seals dispute is a suitable test case for such a justification given that the EU itself had to justify the trade restrictions in instrumental terms; and second whether public morals justifications — even though non-instrumental — should be submitted to some form of rationality test.

The (Non-)Instrumentality of the EU Seal Products Ban

For Regulation 1007/2009 to conform to EU law the Council of the European Union and the European Parliament had to argue that the seal products ban contained in this regulation was necessary for the functioning of the internal market. Since the EU treaties do not grant to the EU a competence to adopt a trade ban for the sole purpose of animal welfare protection, Council and Parliament based the ban on Art. 95 of the Treaty establishing the European Community (now Art. 114 Treaty on the Functioning of the European Union). For the same reason the trade ban on cat and dog fur in Regulation 1523/2007 was also based on Art. 95 TEC. This legal basis allows for “the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.” As a consequence of this choice of legal basis the seals ban had to be justified in terms of its instrumentality for the functioning of the internal market. A convincing case had to be made that the (almost complete) ban on trade in seal products within the EU pursued the objective of the functioning of the internal market.

As Howse and Langille have convincingly argued a measure may pursue multiple purposes. Indeed Art. 114 TFEU itself mandates the EU to pursue in its harmonization legislation a high level of health, safety, environmental and consumer protection. Whether the EU is competent, however, to pursue such aims in a non-instrumental fashion is open to debate. Taking a similar posture to the EU as Howse and Langille do vis-à-vis the WTO one may be inclined to argue that respect for member state diversity and value pluralism within the EU mandates a restrictive stance of the EU with respect to expressive legislation, signifying moral opprobrium.
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YJIL Symposium: The Seal Products Dispute and the Boundaries of Trade Law

by Simon Lester

[Simon Lester is the President of and a trade policy analyst at the Cato Institute.]

This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below.

Over the past two decades, there has been an effort by many trade law academics and others to define the boundaries of international trade rules in a way that disciplines trade restrictions, while allowing sufficient policy space for governments to regulate in legitimate ways. Rob Howse has been at the forefront of this effort, having written numerous articles, on a variety of trade law topics, that address various aspects of these issues. In their YJIL article on the WTO Seal Products dispute, Rob and Joanna Langille continued this effort, by trying to address this problem in the context of a specific kind of measure, one that involves what they refer to as “expressions of intrinsic moral or spiritual beliefs”. (In the case of the seal products ban at issue, it is “the community’s ethical beliefs about the nature of ‘cruelty’ in the unacceptability of consumption behavior that is complicit with that cruelty.”) They argue that WTO law should allow such measures, even if trade is restricted as a result. More generally, they articulate a vision of “pluralism” under the trade regime that “recognizes the importance of expressive, non-instrumental rationales for state decision-making”.

A specific focus of the piece is the distinction between “instrumental” and “non-instrumental” measures. The authors note that while a traditional means/ends analysis can be used to deal with trade concerns arising from instrumental measures, such as those intended to promote human health, this kind of analysis cannot simply be transposed to non-instrumental regulation, which expresses moral, spiritual or ethical beliefs. The means do not relate to the ends in the same way with such measures. One of their goals, then, is to ensure that non-instrumental regulation does not fall through the cracks of the usual approach to setting appropriate boundaries for the trade regime. If the typical means/ends analysis will not suffice, they say, it must be adjusted to deal with the special situation of non-instrumental regulation.

In response to this point, it could be argued that a means/ends analysis is not always ideal even where instrumental measures are at issue. It evaluates the effectiveness of the measure more than its true purpose or trade impact. I don’t mean to suggest that such a test is completely irrelevant for evaluating trade restrictions. Rather, I wonder whether other factors are perhaps more important and should be the focus.
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YJIL Symposium: Introducing Permitting Pluralism

by Robert Howse and Joanna Langille

Robert Howse is the Lloyd C. Nelson Professor of International Law at New York University School of Law. Joanna Langille is a 2011 graduate of New York University Law School.]

This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below.

Our article examines the extent to which countries can use animal welfare concerns to justify placing restrictions on international trade, under the law of the World Trade Organization (WTO). We argue that noninstrumental moral and religious concerns are a legitimate source of trade policy. To make this claim, we examine a current WTO dispute between the European Union (EU), Canada, and Norway. The European Union has banned seal products from being sold in the European Union, because of animal welfare concerns regarding how the animals are hunted and skinned. Canada and Norway have challenged this regulation at the WTO, arguing that animal welfare is not a legitimate objective for restricting trade.

First, we show how animal welfare has long been a motivation for prohibitive legislation, both in Europe and elsewhere, and that animal welfare concerns have prompted the European Union to take numerous prior efforts to promote seal welfare.

Second, we argue that the EU measure was taken because of the moral belief that animal welfare should be protected, a belief related both to avoidance of actual suffering of animals and the appropriate human attitude toward their treatment; the EU measure was motivated by a sincere and genuine desire to protect seals from cruelty and to express the belief that it is morally unacceptable for the EU to be complicit in the cruelty inherent in the production of seal products through the consumption of products that result from these practices.

Third, we explain that the EU measure does not violate any WTO provisions and, even if it did, it could be justified under the General Exceptions clause (Article XX) of the General Agreement on Tariffs and Trade (the primary source of WTO law on trade in goods).

Finally, we set out the strong institutional reasons to avoid interpretations of WTO law that would deny countries the ability to regulate for moral reasons. If the WTO were to do this, it would risk attempting to impose a secular, materialist, instrumentally rational worldview on its member states. Instead, the WTO should permit pluralism—competing notions of righteousness—and allow countries to regulate for moral reasons (with the recognition of course that states are also bound by non-WTO norms, such as international human rights law, which also shape the limits of their prerogative to regulate morality). The WTO legal framework, moreover, must be read so as to accept that animal welfare measures may at the same time have both a utilitarian or instrumental aspect (improving animal welfare outcomes) as well as an expressive aspect, indicating moral opprobrium at the inhumane treatment of animals.

Weekday News Wrap: June 28, 2012

by An Hertogen

Even More on the UN Convention on the Law of the Sea: Follow the Money

by Julian Ku

Today, I hear there is going to be some decision from the U.S. Supreme Court on health care, or something.  But there is something almost as cool going on down at the other end of the Mall: Sen. John Kerry’s latest effort to win Senate advice and consent for the U.N. Convention for the Law of the Sea (and the job as the next U.S. Secretary of State) by holding a SFRC hearing.

Today, the topic is going to be money, not sovereignty or national security. I think this is by far the strongest argument that treaty proponents have in their favor. As we learned last week during the exchange between Steve Groves and John Noyes, there is a real difference of opinion on whether the UNCLOS provisions regulating the development of undersea resources are necessary or desirable. As a refresher, here is Steve’s argument on this point:

Scalia Unhinged: Taking (US State) Sovereignty Very Seriously

by Peter Spiro

I know that most readers of the blog are interested in international law, not immigration law, but Justice Scalia’s concurrence/dissent in Monday’s SB 1070 decision has something for everyone. Scalia takes the trope of formal sovereignty as among the states of the United States to its logical endpoint:

As a sovereign, Arizona has the inherent power to ex­clude persons from its territory, subject only to those limitations expressed in the Constitution or constitution­ ally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty. . . . We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants.  We are talking about a federal law going to the core of state sovereignty.

The opinion references Vattel at length. (Scalia at one point calls him “De Vattel”, as no one past the third-year of law school should do — but perhaps this is just a clever ploy to burnish his anti-internationalist credentials.)

His bottom line: “Arizona is entitled to have ‘its own immigration policy’—including a more rigorous enforcement policy—so long as that does not conflict with federal law.”

I’m not unsympathetic to the bottom line here, though emphatically on the assumption that non-constitutional constraints will better show Arizona the sins of its restrictionist ways. (For Richard Posner’s critical take on Scalia’s position, see this.) And better an entertaining, envelope-pushing, meant-to-offend opinion like Scalia’s than the dry, conventional stuff of Justice Kennedy’s opinion for the Court (complete with a sentimentalist homage to naturalization ceremonies at its conclusion). Kennedy treads familiar ground in framing immigration as a matter of foreign relations, and thus subject to near-exclusive federal power. In an era of disaggregation, I think “one voice” should be discarded to the department of dead metaphors. I’ll take the Supreme Court as a lagging indicator on the point.

In the meantime, the decision is the worst of both worlds for anti-immigration advocates, who can’t decide if this was a victory or not.  If the Court had stiffed them altogether, it would have supplied powerful political ammunition for a crackdown at the federal level. As it is, the Court’s hedged validation of the “papers, please” provision won’t give restrictionists much to work with in Arizona or other state capitals, at the same time that they’re deprived of any boost in national politics.

Update: NY Times has more reax to the Scalia opinion here.

YJIL Symposium: Hall and Weiss Respond to Comments on Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law

by Margaux Hall and David Weiss

This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below.

Margaux J. Hall is a Consultant in the Justice Reform Practice Group of the World Bank’s Legal Vice Presidency. She is based in Freetown, Sierra Leone. David C. Weiss is an Associate in the Antitrust and Competition practice group at Skadden, Arps, Slate, Meagher & Flom LLP in New York.

All views expressed herein are the authors’ own.

We are grateful for the thoughtful contributions from Bonnie Docherty, Tyler Giannini, Robin Kundis Craig, Siobhan McInerney-Lankford, and JB Ruhl, scholars who have shaped academic discourse around climate change and human rights. We also would like to thank Matt Christiansen, who organized this symposium for YJIL. We’ve enjoyed receiving these thought-provoking reactions to our article and believe they warrant at least a brief response.

As we conceded in our introduction to this symposium, there remain significant challenges in addressing global issues such as climate change through a human rights framework. Nevertheless, we continue to view human rights as useful and important in climate change adaptation discussions, as do the commentators in this forum. McInerney-Lankford writes, for example, that human rights have power in that they are backed by the force of law. While the legal standards for a particular right may be somewhat vague, governments may not engage in intransigence, retrogression, discrimination, or failure to meet certain minimum standards. Litigation can indeed vindicate individual rights claims, as experiences from South Africa and India have demonstrated.

Beyond this, human rights law’s state actor requirement need not overly restrict climate change action. Governments themselves will play a large role in climate change adaptation as they receive a growing pot of funding from international donors. For example, in May, six multilateral banks agreed on a joint process to report their adaptation funding. As donors join together, human rights can provide a powerful means of ensuring government accountability and compliance with certain standards. Thus, responding to Ruhl’s concern that international institutions may be no “more effective than they have been in the human rights endeavor simply because the banner now reads climate change,” multilateral banks and others could exert pressure on governments to spend their sizeable adaptation funds wisely – human rights can provide an organizing principle for advocacy in this respect.
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YJIL Symposium: Human Rights and Climate Change: Perspectives on the Value Added of Human Rights Law

by Siobhan McInerney-Lankford

This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below.

[Siobhan McInerney-Lankford is a human rights lawyer and senior policy officer at the World Bank.]

Human rights law can contribute to understanding climate change, particularly in terms of the social and human impacts of climate change. In Avoiding Adaptation Apartheid, Hall and Weiss consider how climate change affects the enjoyment of human rights and employ a legal frame of reference to address the complementary question of how human rights law can inform responses to climate change. By distinguishing how human rights might inform mitigation policies from how they could influence adaptation policies and by focusing on the latter, they get beyond the challenges of establishing causation (due to the aggregate causes and disparate impacts of climate change) and the absence of an established legal basis for what John Knox calls “diagonal environmental rights” between individuals or groups in one country against the government of another country. Instead they highlight the relevance of the ‘vertical dimension’ of human rights law as it governs the relationship between states and their citizens, irrespective of where responsibility for increased emissions should be assigned.

A strength of this approach is its emphasis on existing legal obligations and the enhanced accountability contributed by human rights, since rights imply correlative duties or obligations. A number of additional perspectives are worth highlighting which relate to human rights as the subjects of public international law. As a formal legal matter, it is worth considering how one argues effectively for the applicability of human rights obligations to mitigation responses governed by international environmental law, given the increasingly fragmented nature of international law. One might invoke the importance of international policy coherence to argue for the general relevance of human rights obligations to climate change policy. One might further argue for interpretative reliance on human rights obligations in implementing environmental law obligations where both are binding on a particular government, as for instance where the State were party to both the ICESCR and the UNFCCC. Support could be drawn for this on the principle of systemic integration to argue that human rights law obligations are part of the relevant rules of international law applicable in relations between the parties, within the meaning Article 31 of the Vienna Convention on the Law of Treaties. This normative interplay could be characterized negatively or positively. In negative terms it could be cast as a responsibility to ensure that the interpretation of norms related to climate change not undermine the fulfillment of human rights obligations. From a more positive perspective, human rights obligations could be drawn upon to inform the design and implementation of goals set forth in climate agreements.
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YJIL Symposium: The International Right to Equitable Climate Change Adaptation—Substance or Procedure?

by J.B. Ruhl

This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below.

[J.B. Ruhl is the David Daniels Allen Distinguished Chair in Law at Vanderbilt University Law School]

In Avoiding Adaptation Apartheid, Margaux Hall and David Weiss assemble a compelling argument for viewing climate change adaptation on the international level as a human right. Of particular importance are their emphasis on the distinction between climate change mitigation (measures to reduce climate change) and adaptation (measures to respond to climate change) and their focus on the responsibilities of states, including leaders of developing nations, to provide equitable and effective adaptation measures within their capacity. For too long climate change policy at all scales has been dominated by a mitigation focus, leaving a widening adaptation deficit that threatens to put many vulnerable populations in harm’s way. Hall and Weiss join a growing chorus of policy makers and scholars calling for increased attention to the adaptation needs of a multitude of impoverished people who, owing to the paralysis in mitigation policy, face certain disruption of their communities and cultures. But Hall and Weiss go beyond the standard solutions of shifting money from the developed nations, which are most responsible for and best equipped to manage climate change, to the developing nations least responsible for climate change and poorly situated to withstand its harms. Rather, they also tackle the difficult topic of what to expect from leaders of those developing nations as they decide how to deploy adaptation resources. The human rights lens they use for defining, measuring, and enforcing those duties seems utterly appropriate.

But I am left asking, is this anything exceptional for the law? Surely climate change adaptation presents immense and complex policy questions for subnational, national, and international institutions. This, however, does not necessarily mean climate change adaptation requires anything special of law, or will lead to profound transformation of legal doctrine. For example, in Climate Change Meets the Law of the Horse, Jim Salzman of Duke Law School and I recently examined the impact of climate change adaptation on domestic law in the United States. Using a scenario of climate change impacts drawn from a variety of scientific analyses, we asked which fields of law would likely feel the most stress and whether there would be an impetus for creation of a new distinct field devoted to climate change adaptation. When one plays out that question, many fields of law quickly drop out of the picture. For example, it is a hard case to make that climate change will present novel and complex questions for family law. The law of coastal property rights, by contrast, is more likely to need to evolve to the new circumstances of sea level rise. But as for a distinct substantive field of climate change adaptation law, we could think of no reason one would be demanded. On the other hand, the demand for equitable allocation of adaptation resources in the United State could very well lead to the formation of a distinct set procedures focused on ensuring that goal, much as environmental justice has done for environmental protection.
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Weekday News Wrap: June 27, 2012

by An Hertogen

John Bellinger on the ICC at 10

by Kevin Jon Heller

In case you missed it, I want to call your attention to an excellent editorial on the ICC written by friend-of-OJ John Bellinger III.  Although John does not support US ratification of the Rome Statute, he argues that the ten-year history of the Court has done much to allay US concerns about it — and that US opposition to the Court has hindered their ability to work together when their interests coincide.  Here is his takeaway:

The court has proved less threatening to U.S. personnel and interests than many Americans first feared. The ICC prosecutor has never charged a U.S. official with war crimes and declined to prosecute offenses allegedly committed by U.S. forces in Iraq. In April he appropriately refused to open an investigation into Israel’s intervention in Gaza in 2008-09. Next month’s anniversary is an appropriate time for Congress to review U.S. policy toward the court and whether the restrictions (including the authorization to invade The Hague) in the American Service-Members’ Protection Act do more harm than good. Although the law contains exceptions and waivers (some of which I negotiated), it has hindered the Bush and Obama administrations from providing some forms of assistance to the court, even in cases for which there is strong bipartisan support for holding war criminals such as Bashir and Kony accountable.

There is very little I disagree with in the editorial, although I think that judging the ICC’s success in terms of the number of trials it has completed is a bit too simplistic.  That statistic misleads more than it informs, because a number of other trials should wrap up in the next couple of years.  (And to be fair, John does note that the Court has brought charges against 28 suspects in total.)  Moreover, it took both the ICTY and ICTR a number of years to complete their first cases, even though they had the full support of the Security Council and had jurisdiction over crimes committed in only one situation.

A couple of weeks ago, Eric Posner published an editorial in the Wall Street Journal, “The Absurd International Criminal Court,” that was little more than a series of misleading cliches strung together with conjunctions.  John’s editorial demonstrates — refreshingly — that it is still possible to have an intelligent discussion about the US’s relationship with the Court.  I hope all readers will check it out.

YJIL Symposium: Population Growth: The Sticky Wicket Of Climate Change And Human Rights

by Robin Kundis Craig

This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below.

[Robin Kundis Craig is a professor of law at the University of Utah S.J. Quinney College of Law]

Margaux Hall and David Weiss do all of us a great service in continuing the dialogue regarding the relationship between human rights and climate change in their article, “Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law.” In particular, their article rightfully points out that the human rights implications for climate change adaptation may be significantly different from those for climate change mitigation, in terms of substantive content, legal viability, and procedural feasibility.

As I have argued in the natural resources and environmental law context, climate change adaptation is a different problem from climate change mitigation. By necessity, climate change mitigation—the steps toward reducing anthropogenic greenhouse gas emissions with the ultimate goals of first stabilizing and then reducing their atmospheric concentrations—requires international cooperation. It also requires sacrifice on the parts of some peoples and sectors, at least until some transition away from a carbon-based economy becomes technologically and economically possible. As a result of both of these realities, climate change mitigation efforts are plagued both by feet-dragging and free-riding, both of which complicate the very thorny issues of equity in implementing mitigation strategies around the globe.

Nevertheless, as Hall and Weiss correctly note, implementing climate change adaptation strategies—that is, strategies for coping with the socio-ecological impacts of climate change—is a for more complex problem. For example, these strategies tend to be more focused on the local and regional scale, although at least some international coordination would be helpful for problems such as food and disaster aid and climate change refugees. Moreover, as Professor J.B. Ruhl at Vanderbilt has recently pointed out, climate change will produce winners as well as losers, complicating the potential willingness of all affected persons to embrace adaptation strategies, even in a small geographic location.
Continue Reading…

YJIL Symposium: Human Rights and Climate Change Adaptation at the international Level

by Bonnie Docherty and Tyler Giannini

This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below.

[Bonnie Docherty is a lecturer on law and senior clinical instructor in the Harvard Law School International Human Rights Clinic. Tyler Giannini is a clinical professor and clinical director of the Harvard Law School Human Rights Program.]

In their thought-provoking article “Avoiding Apartheid: Climate Change Adaptation and Human Rights Law,” Margaux Hall and David Weiss argue that human rights law has more to offer climate change adaptation than mitigation. The authors also stress that unless a human rights approach is used, the specter of “adaptation apartheid” looms. They are not the first to apply human rights to adaptation, but they advance the discussion about why the rights framework is a better fit in this context. To prove their point, the authors focus primarily on examples of national adaptation policy and questions of legal liability. Human rights law, however, can also bolster international adaptation efforts, including the creation of new treaties.

Part of the article warns of the dangers of not using a human rights framework in the adaptation context. The title speaks of “apartheid,” and parts of the piece illustrate why particularly vulnerable populations are likely to suffer disproportionate harm from climate change. Hall and Weiss do not fully explore the legal and normative ramifications of bringing an apartheid framework to bear on the issue of climate change, however. It would be interesting to see the authors, perhaps in a follow-up article, unpack questions raised by the use of the word apartheid, which is most often associated with an institutionalized legal regime of separating the races for the purpose of systematic oppression. For example, how do discussions of the climate change legal regime and the disparate impacts along geographic and gender lines relate to traditional uses and understandings of the term apartheid?

The bulk of the authors’ text focuses on approaching the problem of climate change adaptation from a human rights perspective, highlighting national initiatives and touching on possible international ones. The issue of climate change refugees provides an excellent case study of how a human rights framework could work at the international level. Experts predict that climate change will lead to the migration of tens, and maybe hundreds, of millions of people, many of whom will cross national borders. The authors note that recognition of climate change refugees is an example of “how human rights could begin to play a concrete role in climate negotiations,” but they do not explore the topic in depth. In “Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees,” we lay out the components and negotiation process for a proposed instrument on climate change refugees. We also note that an integrated approach that blends efforts to mitigate and adapt is needed. The proposal draws on human rights for essential protections, assignment of state responsibility, and procedural elements.
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YJIL Symposium: Introducing Adaptation Apartheid

by Margaux Hall and David Weiss

This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below.

Margaux J. Hall is a Consultant in the Justice Reform Practice Group of the World Bank’s Legal Vice Presidency. She is based in Freetown, Sierra Leone. David C. Weiss is an Associate in the Antitrust and Competition practice group at Skadden, Arps, Slate, Meagher & Flom LLP in New York.

All views expressed herein are the authors’ own.

We would first like to thank the Yale Journal of International Law and Opinio Juris for making possible this online symposium on our recent article, Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law. We’re looking forward to the forthcoming discussion.

Our article aims to explain how the international law of human rights can inform the understanding of, and guide policy decisions regarding, climate change adaptation. We argue that, thus far, analyses linking human rights and climate change have focused primarily on mitigation (reducing greenhouse gas emissions to lessen the extent of climate change), giving short shrift to adaptation (responding to actual or expected human and environmental consequences of a changing climate to minimize harm). Legal scholars and practitioners have recognized the difficulty of applying human rights to climate change mitigation: legal duties only extend within territorial boundaries to state actors, and it is difficult to establish that a particular government action or inaction gave rise to harm. But, as our article contends, human rights can and should be a practical tool to address climate change adaptation, which often takes place at the state or community level, and which involves less tenuous causal chains.

Any academic discussion of adaptation should also acknowledge the disproportional effects of climate change on persons who already suffer the most due to poverty, inequality, restrictive economic and socio-cultural settings, and other factors. The international development community often considers these individuals collectively through Millennium Development Goals and other aggregate targets, but human rights addresses these persons’ individual and group-based needs and entitlements. In essence, bringing humanity to discussions of climate change adaptation, we believe, provides an important normative lens through which to view difficult issues relating to climate change.
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Yale Journal of International Law Symposium: Volume 37 Issue No. 2

by Editors of the Yale Journal of International Law

This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below.

The Yale Journal of International Law (YJIL) is pleased to continue its partnership with Opinio Juris through this symposium. Over the next three days we will be discussing two Articles from Volume 37, Issue No. 2. Our sincere thanks to An Hertogen and the rest of the Opinio Juris team for hosting this exciting discussion.

First, in Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law, Margaux J. Hall and David C. Weiss discuss how international human rights law can inform and guide policy decisions regarding climate change adaptation. They argue that incorporating human rights considerations into adaptation policy can help to moderate or avoid the growing threat of “adaptation apartheid” that will result from unequal global adaptation to the effects of climate change. Their introduction to the discussion and the comments will be posted throughout today and tomorrow.

Second, in Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Accept Trade Restrictions Justified by Noninstrumental Moral Values, Robert Howse and Joanna Langille examine the extent to which countries can use animal welfare concerns—and non-instrumental moral values more broadly—to justify placing restrictions on international trade under the law of the WTO. Using the Seal Products dispute, the authors conclude that the WTO should not deny countries the ability to regulate for moral reasons and risk imposing a secular, materialist, instrumentally rational worldview on its member states. Instead, the WTO should permit pluralism—competing notions of righteousness—and allow countries to regulate for moral reasons. Their introduction to the discussion will be posted on Thursday.

Although this discussion will focus on those articles, we would like to introduce the third article of the issue. In Prospective Advice and Consent, Jean Galbraith proposes an approaching for improving the current system of treaty ratification. She argues that the current system, in which the President negotiates a treaty and the Senate then provides advice and consent, is not constitutionally determined and the that the order should be reversed under certain circumstances. The present system of advice and consent after negotiation and signature limits the number of treaties that can be made under the Treaty Clause, slows the entry into force of even minor treaties, and leads to intentionally endless delays (amounting to outright deaths) for major multilateral treaties. By having broad-brush advice and consent precede treaty negotiation and signature, Professor Galbraith argues, the United States could greatly improve the efficiency of its treatymaking process and increase its negotiating power at the international level.

We look forward to the discussion.

Weekday News Wrap: June 26, 2012

by An Hertogen

More Information About Taylor’s Detention

by Kevin Jon Heller

An excellent new report by the Guardian contains a number of interesting tidbits.  To begin with, the report confirms that Taylor — like her erstwhile client — is being held by the Zintan rebels, not by the Libyan government, and that the relationship between the two is strained…

In Other Supreme Court News: International Law Studiously Avoided in Juvenile Life-Without-Parole Case

by Peter Spiro

The Supreme Court has struck down state laws mandating juvenile offenders to be sentenced to life without parole with its decision in Miller v. Alabama. The decision is part of a logical progression from decisions constitutionally barring the death penalty for juvenile offenders (Roper v. Simmons) and life sentences for juveniles for crimes not involving murder (Graham v. Florida).

What’s interesting for our purposes: this is another decision in which the Court makes not even a passing reference to international or foreign law.  Miller follows on Kennedy v. Louisiana in that regard (though Justice Kennedy give IL a nod in Graham).  The Court would have had plenty to work with; international practice is clearly moving away from life sentences in any context, most of all where juveniles are involved or there’s no possibility for parole. (See the amicus brief in the case from Amnesty International and other human rights organizations.)

An unconscious omission? Not a chance. The Court saw a significant backlash from its references to international law in Roper, Atkins, and Lawrence. All nominees to the Court are now asked in confirmation hearings for their positions on the use of foreign law, and all (Democrats included) freely disavow it. International law is the third rail of constitutional jurisprudence these days.

But that doesn’t mean international law is inconsequential in this context. International norms are affecting domestic actors, including states, whose practice is relevant to Eighth Amendment determinations. And the justices of course can take IL into account on the sneak, as it were, by way of adjusting US rights standards to international law without drawing the fire that explicit references will draw. The result is the same: the US comes into line.

Court Guts SB 1070 (Immigration Still Part of Foreign Relations)

by Peter Spiro

As predicted here, the Supreme Court delivered a split decision today in the Arizona immigration case.  But to the extent that it’s a partial victory for supporters of SB 1070, it’s only a nominal one.  Justice Kennedy’s majority opinion broadly validates federal power over immigration, leaving a very confined space for state activity.

Kennedy’s opinion situates immigration law as part of foreign relations.

[The federal power over immigration] rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Naturalization,” U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations, see Toll, supra, at 10 (citing United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 318 (1936)).

The federal power to determine immigration policy is well settled. Immigration policy can affect trade, invest­ment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. See, e.g., Brief for Argentina et al. as Amici Curiae; see also Harisiades v. Shaughnessy, 342 U. S. 580, 588–589 (1952). Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad. See Brief for Madeleine K. Albright et al. as Amici Curiae 24–30.

It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 sepa­rate States. See Chy Lung v. Freeman, 92 U. S. 275, 279– 280 (1876); see also The Federalist No. 3, p. 39 (C. Rossiter ed. 2003) (J. Jay) (observing that federal power would be necessary in part because “bordering States . . . under the impulse of sudden irritation, and a quick sense of appar­ent interest or injury” might take action that would un­ dermine foreign relations). This Court has reaffirmed that “[o]ne of the most important and delicate of all interna­tional relationships . . . has to do with the protection of the just rights of a country’s own nationals when those na­tionals are in another country.”  Hines v. Davidowitz, 312 U. S. 52, 64 (1941).

Bonus “one voice” line at page 18 of the slip opinion.

I have more to say about the decision over at Scotusblog. I’m not surprised by the result, but I am surprised by the tone. I think the decision will take a lot of wind out of restrictionist sails at the state level. The unintended consequence might be redoubled efforts at the federal level to toughen up on immigration.

Wanted: Best-Selling Novelist Who Needs Advice on International Law

by Duncan Hollis

Long-time readers may recall that I have a standing offer to employ my services as a technical consultant for any Hollywood producer or New York Times best-selling novelist looking for accuracy in popular portrayals of international law.  And we here at Opinio Juris regularly like to make hay of how popular culture interprets international law and international relations.   For our latest installment, consider Brad Thor’s recent novel, Full Black.  On the whole, it’s a well-written, fast-paced thriller (sufficiently engaging that I read the entire book during a cross-country flight yesterday).  The tone though is pretty preachy at times, with the various heroes being libertarian, vigilante former US military types versus a George Soros-type globalist villain who wants world government and will use an al Qaeda-type network to get there.  I was fine with all that, even mildly amused by some of the political dialogue among the characters.  But there was one passage that gave me pause:

Torture was something he had used only as an absolute last resort.  He loved to hear TV pundits and others cite the Geneva and Hague conventions.  Putting aside the fact that most of them had never read any of those treaties, the key fact that they all missed was that America’s Islamist enemies were not a party to these agreements.  What’s more, the conventions strictly forbade combatants from hiding and attacking from within civilian populations.  Lawful combatants were also required to appear on the battlefield wearing something, whether a uniform or even just an armband, identifying them as combatants — overgrown bears and high-water pants didn’t count.

The long and short of it was that if one party refused to sign on and follow the rules, it couldn’t expect any sort of protection from those rules.  And as far as Harvath was concerned, those who championed the extension of Geneva and Hague to Islamic terrorists were uninformed at best and apologists at worst.  Believing his country to be made up of good, reasonable people, he preferred to put the terrorist protectors in the former category.

Three things struck me on reading this.

First: once, just once, can’t a best-selling novelist do as much consulting and research on international law as they do on covert tactics and operations?  To be clear, I like talking to my ex-Navy SEALS friends as much as the next guy, but I don’t know that they have to be the exclusive repository of all knowledge for these sorts of projects.

Second, will I ever encounter a blockbuster, whether in book or movie form, that portrays international law as something patriots can believe in, as opposed to a barrier to some protagonist’s against-all-odds quest for justice and the American way?  Seriously, where’s the book on international law as a vehicle for American interests or even one where the plot depends on preserving the gains of some international compromise from which Americans and others all benefit?  I’m not asking that we lose the bang-bang shoot-em up that makes for good reading, but couldn’t international law be used to help move the plot along rather than as a target for snarky asides?

Third, there’s the claims about international law itself in the text.  Now, I have read and cited to Geneva and Hague law pretty regularly in my scholarship.  I’m also pretty familiar with the international legal system and how treaty law works.  And I certainly am no apologist for terrorism having served in the US State Department for some years.  But . . . well, let’s just say there’s an impressive mix of the accurate with the inaccurate in Thor’s text when it comes to when international law applies, to whom it applies, and how it applies.

So, here’s my summer pop-quiz for interested readers.  Identify what Thor’s protagonist gets wrong about international law, including the “Geneva and Hague Conventions”.  Feel free to chime in on what he does get right as well. And, for those of you best-selling novelists needing advice on international law for some new project, call me.  We should talk.

Weekday News Wrap: June 25, 2012

by An Hertogen

So Far, the “Apology” Hasn’t Helped

by Kevin Jon Heller

I obviously disagreed with the ICC’s decision to issue the non-apology apology, but I sincerely hoped that it would at least lead to Taylor’s release.  Unfortunately, Libya has given no indication that, having suitably humiliated both the Court and Bob Carr, it has any intention of releasing her:

Carr said Friday’s talks in the Hague between the ICC and Libyan authorities had resulted in a statement “that had the ICC expressing regret, effectively an apology for any misunderstandings”.

“It’s what we were after,” Carr told ABC television.

“The talks in The Hague between the ICC and the Libyan authorities, including their attorney-general, were very constructive.”

But he said the release of Taylor, who has been accused of carrying a pen camera and attempting to give Saif Al Islam a coded letter from his former right-hand man, Mohammad Esmail, and her colleagues was some way off.

“I think, and I regret to have to say it, that they (Libyan authorities) will need some time to work this through their political system,” he said.

Could Carr have handled the situation any worse?  After all, it was he who insisted that Libya would release Taylor if the ICC “apologized” for her actions.  Either Libya lied to him and he took its representations at face value or he simply assumed that an apology would lead to Taylor’s release.  Neither scenario makes him look very good.

Nor, unfortunately, is that all.  Reading between the lines of a recent Sky News report, it seems that Taylor is still under the control of the Zintan rebels, not the Libyan government…

No, HRW and Amnesty International Don’t Ignore Labor Rights

by Kevin Jon Heller

I have often chided David Bernstein for his misrepresentation of the work done by Human Rights Watch and Amnesty International, so it is only fair to call out progressives when they, too, distort that work.  Political Animal, which is associated with the Washington Monthly, is one of my favorite progressive blogs.  But a recent post by Kathleen Geier that claims HRW and Amnesty ignore labor rights is painfully inaccurate:

I have long wondered why the major human rights groups like Amnesty International and Human Rights Watch have never seemed to pay the slightest attention to labor rights, even though, to their credit, over the years these organizations have expanded their scope to include nontraditional human rights areas like women’s rights, disability rights, GLBTQ rights, and the like. How did that come to be, I wondered?

Well, I don’t have to wonder any more, after having read Mark Ames’ amazing blog post on (H/T: Corey Robin).

Ames definitely has the goods. No, it’s not our imagination, the human rights groups could not have more contempt for the concept of labor rights if they tried:

Go to Amnesty International’s home page at On the right side, under “Human Rights Information” you’ll see a pull-down menu: “by topic.” Does labor count as a “Human Rights topic” in Amnesty’s world? I counted 27 “topics” listed by Amnesty International, including “Abolish the death penalty”, “Indigenous Peoples”, “ “Children and Human Rights” and so on. Nowhere do they have “labor unions” despite the brutal, violent experience of labor unions both here and around the world. It’s not that Amnesty’s range isn’t broad: For example, among the 27 topics there are “Women’s rights”, “Stop Violence Against Women” and “Sexual Orientation and Gender Identity”. There’s even a topic for “Business and Human Rights”—but nothing for labor.

Geier goes on to say that Human Rights Watch is no better — a claim that Mark Ames explains as follows:

Checking Human Rights Watch’s homepage (, there’s a tab listing “topics”—14 topics in all. Once again, labor is not listed among Human Rights Watch’s covered “topics.” Instead, Human Rights Watch lists everything from “Children’s Rights” to “Disability Rights” to “LGBT Rights” and “Women’s Rights”—along with “Terrorism”, “Counterterrorism” and, I shit you not, “Business”—as vital human rights topics. But not labor. “Business”—but not “Labor.”

Seriously, critics of HRW and Amnesty need to learn how to use the internet.  If you go to Human Rights Watch’s “topics” page — instead of the abbreviated “topics” tab — you will find numerous topics that are directly relevant to labor rights: “Extractive Industries,” “Corporations,” “World Bank/IMF,” “Child Labor,” “Economic, Social, and Cultural Rights,” “Migrants,” “Workers, Forced Labor, and Trafficking” (!), and “Domestic Workers.”  Each topic contains multiple HRW reports and press releases concerning labor rights; the current topics page, for example, includes entries such as Kazakhstan: Ensure Fair Trial for Oil Workers, OthersLabor Department Abandons Child Farmworkers; Uruguay: First to Ratify Domestic Workers Convention; Singapore: Domestic Workers to Get Weekly Day of Rest; Qatar: Migrant Construction Workers Face Abuse; The Invisibility of Domestic Workers; and Asia/Middle East: Increase Protections for Migrant Workers.  And, of course, the “Business” topic — which Ames ridiculously implies is concerned with the rights of businesses — includes numerous labor-rights oriented entries, such as India: Mining Industry Out of Control.

Ames and Geier also significantly misrepresent Amnesty’s work..

Upcoming Events: June 24, 2012

by Jessica Dorsey


Calls for Papers

  • The Australian Journal of International Law has issued a call for papers on international law with a submission deadline of June 30, 2012.
  • In honor of the service of the registrar of the International Criminal Tribunal for Rwanda, Adema Dieng, papers are being collected and are also due June 30, 2012.
  • The University of Sydney is hosting a post-graduate conference on November 1-2, 2012 entitled Crossing Boundaries (Word document), open to post-grads in the Asia-Pacific region. Deadlines of abstract submission (no more than 250 words) is August 31, 2012 at 5:00 p.m.
  • Transnational Dispute Management has issued a call for papers for a forthcoming (January 2013) special issue on Corruption and Arbitration. The deadline for submission is July 31, 2012.
  • The Irish Yearbook of International Law has a call for papers for a special symposium issue regarding Climate Justice in International Law (Word document). Submission deadline  is August 31, 2012.
  • ASIL’s Lieber Society on the Law of Armed Conflict has announced its call for the Richard R. Baxter Military Writing Prize (Word document). Deadline for submission is December 31, 2012.

Special Announcements

  • The International Law Department of the US Naval War College has launched Stockton, a new LOAC/IHL e-Portal. It is designed to serve as a single point from which you may conduct most of your on-line research into LOAC issues. The e-portal contains links to commonly used websites useful for such research, and contains pdfs of frequently used treaties, military manuals and case law.

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.

Weekend Roundup: June 16-22, 2012

by An Hertogen

This week on Opinio Juris, we continued last week’s discussion on the US debate on ratification of the UN Convention on the Law of the Sea with a follow-up post by Craig Allen, addressing the Convention’s extended continental shelf revenue sharing and its compulsory dispute settlement. John Noyes’ response to last week’s post by Steven Groves discussed why ratification would create more stability for US claims with respect to the extended continental shelf. He also responded to Jeremy Rabkin’s concerns about compulsory arbitration, but the latter didn’t find the precedents on compulsory arbitration reassuring.

Another symposium this week focused on Paul Schiff Berman’s book “Global Legal Pluralism: A Jurisprudence of Law Beyond Borders”. The symposium, introduced here by Peter Spiro, kicked off with a post by Paul Berman outlining the book’s argument. Jeff Dunoff criticized the book for paying insufficient attention to the issue of international regime interaction; Janet Levin offered suggestions of how the work could push beyond its own boundaries; and David Zaring applied Berman’s cosmopolitanism to international financial regulation. Peter Spiro offered two thoughts on community formation and the role of international law to test, and if necessary, limit community practices. Hari Osofsky commented that there are multiple visions possible of global scale and worried about inequality in legal orderings. Paul Berman’s closing post offered “three responses and a quibble”.

A stand-alone guest post by Jonathan Hafetz discussed how habeas reviews of Guantanamo detentions turn a blind eye to the length of the detention.

In our regular posts, Duncan Hollis discussed the parallels between the Enrica Lexie dispute between India and Italy and the seminal Lotus case; Roger Alford discussed how extraterritorial application of the US Foreign Corrupt Practices Act could jumpstart anti-corruption prosecution in other OECD countries, and Julian Ku posted about Germany v Greece in the Euro 2012.

Peter Spiro asked whether the pending Supreme Court ruling on Arizona’s SB1070 will make any difference and whether Julian Assange will live out his days in the Ecuadorian Embassy in London. Peter also pointed to the plight of persons of South Sudanese descent residing in Sudan who have become stateless after South Sudan’s secession.

As always, Kevin Jon Heller kept us up-to-date with ICC news, discussing the ICC’s Appeals Chamber’s “farewell present” to Moreno-Ocampo. He continued to write about Melinda Taylor’s detention in Libya, criticizing Australian’s foreign minister’s radio interview on the issue as well as the reporting on the reasons for her detention in the Libya Times. He followed up with a Guardian article reporting that Melinda Taylor is being interrogated. Kevin also thought that the ICC was risking its credibility with its statement on Melinda Taylor’s detention. In a more technical post, Kevin explained his argument regarding article 89(2) Rome Statute and the obligation to surrender.

Deborah Pearlstein drew our attention to Anne-Marie Slaughter’s candid article about work-life balance for professional women. Since you’re probably reading this during the weekend, I will stop interfering with your work-life balance and just quickly point out that it’s not too late yet to participate in our readers’ survey and enter the sweepstakes to win a $100 Amazon gift voucher.

Thank you very much to our guest contributors and have a nice weekend!

The ICC Commits Cooperation Seppuku

by Kevin Jon Heller

As Mark Kersten has already ably discussed at Justice in Conflict, the ICC released a statement yesterday regarding Melinda Taylor’s detention.  Ironically, although I think everything about the statement is profoundly devastating to the Court’s credibility, I am actually slightly less bothered than Mark by the “regret” section of the statement:

The ICC deeply regrets any events that may have given rise to concerns on the part of the Libyan authorities. In carrying out its functions, the Court has no intention of doing anything that would undermine the national security of Libya.

This strikes me as a classic non-apology, the kind of weaselly language that politicians offer when they make a racist joke: they don’t actually apologize for making a racist joke, they simply say that they “regret” the fact that others didn’t find the joke as funny as they did.  The first sentence scrupulously avoids saying that Taylor did anything wrong; it simply expresses regret that Libya might have “concerns” about something Taylor might have done.  And the second sentence simply expresses the ICC’s desire not to harm Libya’s national security; it doesn’t say that Taylor actually harmed it.

The weaselly language of the “regret”  section of the statement, however, is small comfort.  In my view, the rest of the statement is far more objectionable — and will no doubt serve as a road-map for other states that don’t want to cooperate with the ICC.  Let’s start with the first substantive paragraph…

Germany and Greece Take Their Fight to the Pitch

by Julian Ku

I love soccer (excuse me, “football.”). And I actually really enjoy tournaments like the Euro Championships or the World Cup because they remind me of the very powerful patriotic emotions that still exist, even in this supposedly post-national age, and even in the post-national E.U.  Who needs a European Constitution? I will truly believe in the Euro-State when the Europeans give up their national teams and send a single European team to the World Cup.   Until then, I am not buying this whole United States of Europe thing.

Which brings me to the recent Germany-Greece match, which took place amid continuing tensions over Greece’s struggles to remain in the Eurozone.  With German leader Angela Merkel on hand, German fans did not hold back, taunting the Greeks:

“Without Angie, you wouldn’t be here,” bellowed the German fans, referring to the multibillion-dollar bailouts Greece has received from European partners, first and foremost Germany.

But the Greek fans’ response was absolutely precious:

“We’ll never pay you back,” countered the Greeks. “We’ll never pay you back.”

And they never will…

How to Jump Start Enforcement of Anti-Bribery Laws

by Roger Alford

Since the late 1990s, thirty-nine nations have signed the OECD Anti-Bribery Convention. So far so good. But unfortunately, the treaty essentially is toothless, requiring nations to implement national laws that prohibit foreign bribery, but doing little more. Only a handful of countries are effectively enforcing their anti-bribery laws. Which ones? Well, the answer seems to be the countries where the United States has gone after their corporations.

Under the FCPA, of course, the United States has jurisdiction over foreign companies that bribe foreign officials, provided they issue shares on a U.S. stock exchange. That is a very large category of foreign corporations. The United States can also go after foreign corporations if there is some territorial nexus. The DOJ and the SEC take an expansive interpretation of territoriality, such that the payment of a bribe through a U.S. correspondent bank or the sending of an email sent through a U.S.-based email account is considered a sufficient territorial nexus to permit prosecutions of foreign companies for bribing foreign officials on foreign soil.

So precisely how does the extraterritorial application of U.S. anti-bribery laws affect the regulatory behavior of other nations? That was the question of a recent study by Sarah Kaczmarek and Abraham Newman published in International Organization. The findings are fascinating, and strongly support the idea that an FCPA prosecution will jump-start corruption enforcement in other OECD countries.

The study by Kaczmarek and Newman found “strong statistical evidence linking extraterritoriality to national policy implementation.” Thus, if the U.S. prosecuted a German or British firm under the FCPA, the enforcement behavior of the German and British authorities increased dramatically. “[T]he odds of a country enforcing its first case are twenty times greater if a country has experienced extraterritorial application of the FCPA as compared to countries that have not.”

In other words, the regulatory behavior of OECD Parties changes dramatically following an FCPA prosecution of one of its nationals. This convergence trend suggests that, as the study put it, “lead regulators from large markets may alter domestic enforcement decision making in other jurisdictions, underscoring the subtle legal authority enjoyed by bureaucracies from powerful states to influence international markets.”

American corporations have long complained of the comparative disadvantage they have vis-à-vis other corporations because of U.S. anti-bribery laws. The OECD Convention went a long way toward leveling the playing field. But if you really want a level playing field, one of the best ways to achieve it is for the United States government to go after foreign corporations under the FCPA. This will increase the likelihood that other countries will launch their first corruption case under their own domestic laws by a factor of twenty!

If our world is a global village, I guess we could say that as long as there is one sheriff in town serious about government corruption, others will join the posse.

Weekday News Wrap: June 22, 2012

by An Hertogen

UNCLOS and Dispute Settlement: A Response to Professor Rabkin

by John Noyes

[John E. Noyes is the Roger J. Traynor Professor of Law at California Western School of Law.]

I do not share Professor Rabkin’s pessimistic view of the prospect of international arbitration of law of the sea disputes under the Law of the Sea Convention.  LOS Convention tribunals and the law of the sea experts who serve as judges and arbitrators have helped to resolve disputes peacefully and to reinforce Convention rules.  For example, in the merits stage of the M/V “Saiga” (No. 2) case, the International Tribunal for the Law of the Sea (ITLOS) – which had jurisdiction only because the countries involved specially agreed; arbitration would normally be the third-party forum – reaffirmed navigation rights in the exclusive economic zone (EEZ), in the face of a coastal state’s attempt to exercise creeping EEZ jurisdiction that was not permitted under the LOS Convention.  During the negotiation of the LOS Convention the United States supported compulsory third-party dispute settlement in large part because it could help reinforce Convention rules important to the United States.  Although the functions of international third-party compulsory dispute settlement treaty provisions and tribunals are nuanced and varied, we should not lose sight of the stabilizing role of the LOS Convention’s dispute settlement provisions.

UNCLOS: Why the Precedents for Compulsory Arbitration Aren’t Reassuring

by Jeremy Rabkin

[Editors Note: We inadvertently posted the incomplete version of this post by Jeremy Rabkin this morning. This post has his response to Prof. Noyes earlier post today. Sorry for the confusion.]

[Jeremy Rabkin is Professor of Law at George Mason University School of Law.]

Craig Allen has performed a valuable service by reporting the range of sea-related treaties where we have already committed to compulsory arbitration.   What strikes me is that these are all quite limited, narrow-gauge agreements.   If we were dissatisfied with arbitration rulings on these agreements, we might easily announce that we were withdrawing, without causing great tumult in the international community — or warnings that we were doing great harm to American interests.  These agreements look more like the Optional Protocol to the Vienna Convention on Consular Relations, from which President Bush had no trouble withdrawing, when we were unhappy with ICJ rulings on that narrow subject.   I don’t think that experience proves we can shrug off concerns about committing to compulsory arbitration for the whole bundle of issues covered in the Law of the Sea treaty.  There is a reason proponents called it a “Constitution for the Oceans.” Having committed to a “constitution,” it is not so easy to walk away from it.

Regarding ITLOS and “prompt release,” I agree with Professor Allen that the wording of Article 113(1) of the amended rules of the tribunal supports a narrow reading of the “prompt release” jurisdiction in Art. 292 of UNCLOS.   But the language of 292 itself supports a narrow reading.  That did not prevent the tribunal’s majority from opening the door to what it called an “unrestricted interpretation” in the Saiga case.  That’s what the dissenters protested at the time.  Unfortunately, they were in the minority.  The fact that the court’s judgment ultimately relied on other arguments does not change the fact that the majority put the “unrestricted interpretation” on the table – without saying a word against it.

Similarly, I agree with Prof. Noyes that language in the subsequent Camouco case supports a restrictive reading of Art. 292, but it is hardly a definitive repudiation of the “unrestricted interpretation.”  It is one sentence and rather ambiguous in its wording.  Since it does not expressly repudiate the Court’s previous expression of openness to the “unrestricted interpretation,” it might be read as leaving the issue open.  To preserve this possibility, Judge Laing argued in his “declaration” in Camouco that “there cannot be any gainsaying that prompt release is also reinforced by its significant humanitarian underpinnings … [including] the civil rights or concerns of detained crews.”  It may not prove easy to restrict “humanitarian underpinnings” to a narrow class of commercial fishing disputes.  Professor Noyes notes that all the “prompt release” cases so far have dealt with disputes about fishing boats violating local conservation rules.  It doesn’t follow that there can never be a different kind of case.  It certainly doesn’t follow that ITLOS will disclaim jurisdiction when such a case arises.

My point is not that ITLOS is sure to over-reach in future cases, but that there remains a risk that it will. It’s easy to imagine an international outcry at the seizure of sea-borne terrorist suspects by the U.S. Navy.   Given the chance to win international acclaim, international judges may not have much patience for subtle interpretations of treaty provisions in UNCLOS.   Most critics of U.S. practices at Guantanamo have not bothered to contend with textual restrictions on the reach of the Geneva Convention on Prisoners of War. I do not think it is wise to empower an international court to second-guess U.S. naval practices.  Professors Noyes and Allen rely on a more optimistic view.   I don’t see that such optimism is justified by the record of other international tribunals, like the International Court of Justice.

The Must-Read I Should’ve, But Didn’t, See Coming

by Deborah Pearlstein

The cover story in this month’s Atlantic magazine is an article by former U.S. State Department head of policy planning, former dean of Princeton’s Woodrow Wilson School for Public & International Affairs, former Harvard Law professor Anne-Marie Slaughter. Anne-Marie’s writings on international institutions and international networks are, I’m sure, known to many OJ readers. For this reason alone, I count the piece as fair fodder for our international law and policy blog.

The article, however, is not about international law or policy. Not per se. It is, I suppose, about some of the key jobs in the U.S. international security and foreign policy establishment. It is about her experience, to some extent, of her State Department job. But mostly, it’s about women in these, and other substantive, high-level, professional positions. And whether, and to what extent, it’s possible for women in such positions to “have it all” – that is, a fulfilling career and rich, involved family life. Her conclusion: Outside of academia, not so much.

The significance of the piece is not especially its insights about the difficulty of having both professional career and family life. There are other pieces about the dearth of women in leadership roles in the national security establishment (and at the most senior levels in a host of other professions). There are other pieces about the absurd way in which public school schedules still function as if it hadn’t been more than a decade since our society became one in which the majority of married couples with children have both parents working outside the home. There are other pieces recommending more flexible work places. There are many other pieces about the costs vs. benefits of motherhood earlier vs. later in life. One could go on.

The significance of this piece is its author. There’s a personal cost to writing from one’s personal experience. There’s a risk in engaging the personal as political. Anne-Marie Slaughter didn’t need to write a piece like this. But I’m grateful that she did.

Assessing Length: The Blind Spot in Habeas Review of Guantanamo Detentions

by Jonathan Hafetz

[Jonathan Hafetz is Associate Professor of Law at Seton Hall University School of Law. He has also represented several Guantanamo detainees.]

The Supreme Court’s denial of certiorari last week in seven Guantanamo detainee cases marks the end of an important chapter in the post-9/11 habeas corpus litigation.  It leaves in place the D.C. Circuit’s narrow construction of the constitutional habeas right the Court recognized in Boumediene v. Bush and underscores the Court’s seeming reluctance to intervene to articulate rules surrounding war-on-terrorism detentions.  I describe in a forthcoming article various ways that the D.C. Circuit has undermined Boumediene’s mandate of meaningful review, including by affording a presumption of accuracy to government intelligence reports (Latif); reversing district judges for scrutinizing the government’s allegations too closely (Adahi); rejecting that the law-of-war informs the scope of the government’s detention power (Al-Bihani); and denying judges’ authority to remedy unlawful detention by ordering a prisoner’s release (Kiyemba).

Yet, while important, the debate over the D.C. Circuit’s interpretation of Boumediene is also limited.  It centers on threshold determinations of detainability—who can be held in military custody under the 2001 Authorization for Use of Military Force (AUMF) and pursuant to what process—and assumes that those found detainable may be held for the duration of the conflict.  This front-end focus is loosely based on the paradigm of combatant (prisoner of war) detentions under IHL.  That paradigm’s superimposition on war-on-terrorism detentions was given qualified endorsement by the Supreme Court in Hamdi v. Rumsfeld, which upheld the president’s authority under the AUMF to detain an alleged Taliban fighter captured while participating in hostilities in Afghanistan.

Habeas litigation since Hamdi has focused largely on defining the permissible scope of the president’s AUMF-based detention power and the process required to determine…

UNCLOS and the Continental Shelf: A Response to Steven Groves

by John Noyes

[John E. Noyes is the Roger J. Traynor Professor of Law at California Western School of Law.]

My thanks again to Julian Ku for organizing this series on U.S. accession to the Law of the Sea Convention.  I write to respond to Mr. Groves’s contention, based on U.S. experience in the Gulf of Mexico, that U.S. accession is not needed to further the stability and security of claims to offshore oil and gas resources.  In another post, I respond to Professor Rabkin’s concerns about the third-party dispute settlement system of the LOS Convention.

Melinda Taylor Being Interrogated — and Bob Carr Being Embarrassed

by Kevin Jon Heller

According to The Guardian, Libya is now interrogating Taylor and intends to prosecute her for violations of “national security” (read: doing her job and defending Saif) even if the ICC apologizes:

Tripoli said on Wednesday night that Taylor, one of four ICC officers who were on an official visit to Libya, had tried to deliver documents to Saif that were not part of her work for the court.

“An interrogation of them is under way,” said the Libyan government spokesman Nassar el-Manee. “There is evidence that proves they have breached the law.”

Tripoli says the documents represented a “threat to national security”, but has given no details.

The decision comes after the Australian foreign minister, Robert Carr, met Libya’s prime minister, Abdulrahim el-Keib, earlier this week, announcing a hope that Taylor would be released if the ICC issued an “apology”.

Manee said such an apology would not prevent a criminal case being launched. “They [the ICC] should say: ‘We have made a mistake,'” said Manee. “When the interrogation is complete we will explain everything.”

I’m sure they will.  In the meantime, this latest development provides clear evidence that Bob Carr was simply being played by the Libyan government.  The government obviously had no intention of releasing her; it simply wanted the Foreign Minister of a major western power to go on record with his belief that the ICC, not Libya, was responsible for Taylor’s detention.  I guess blaming the victim wasn’t such a good idea, after all.  May we please take the ICC apology off the table now?

Oh, and The Guardian provides another interesting piece of information: Taylor has been held incommunicado for the past nine days.  The Rule of Law is indeed alive and well in Libya.

Falling Between the (Nationality) Cracks in the Sudan

by Peter Spiro

Here’s an interesting report just out from the Open Society Initiative for Eastern Africa on the citizenship deficit in the wake of South Sudan’s secession. The problem: several hundred thousand persons of South Sudanese descent resident in the north following the breakaway who now apparently have no status at all – ie, they’re stateless. This is the definitive paper on how nationality continues to dog resolution of the Sudan split. (The report’s author, OSI’s Bronwen Manby, has almost single-handedly engaged African states on citizenship issues, with some success – a striking example of norm entrepreneurship.)

The report frames a right to nationality in this context.  It’s a credible one, notwithstanding the trope that nationality remains a matter of sovereign discretion. Especially in the context of state succession, there’s a pretty good argument that individuals should be entitled to citizenship in their (new) state of habitual residence.  See this, for instance, from the International Law Commission – this was an issue that got a lot of play in the breakup of Yugoslavia.

Pushing the envelope a little further, the report suggests a limited right to maintain dual nationality. That’s not really plausibly asserted as a general right (though a normative case can be made). What makes it tenable here: Sudan allows its citizens to hold dual nationality with any state other than South Sudan.  That opens the door to an argument that the regime is discriminatory on the basis of national origin. Never mind that nationality regimes have long discriminated on the basis of national origin – anti-discrimination norms have got some traction in this context, and it will be interesting to see if the argument sticks here.


Terrible Reporting on Melinda Taylor’s Detention

by Kevin Jon Heller

At Justice in Conflict, Mark Kersten is keeping track of developments concerning Taylor’s detention.  Checking out some of his links, I was struck (not for the first time, of course) by how little the media knows about how the ICC works — and by their willingness to think the worst of criminal defense attorneys, even in the absence of any evidence that they have done anything wrong.  Case in point, an article by someone named George Grant in the Libya Times, which has the following “when did you stop beating your wife” title: “ICC Still Not Denying Melinda Taylor Allegations.”  Here are a few paragraphs that are indicative of the article’s awfulness:

Taylor has been accused by both the commander of the Zintan brigade, Ajmi Al-Atiri, and the official spokesman of the NTC, Mohammed Harizi, of attempting to hand over “dangerous” documents to Saif Al-Islam Qaddafi. Taylor has been appointed by the ICC to represent Saif’s defence interests.

Amongst these documents are allegedly coded letters written by Saif’s fugitive right-hand man, Mohammed Ismail, with whom Taylor’s captors believe she has been in contact. Taylor has also allegedly been found in possession of three blank documents marked only with Saif’s signature, as well as a letter from Saif in which he complains of mistreatment at the hands of his captors and the absence of the rule of law in Libya. Assaf, meanwhile, is said to have been found in possession of a “spy camera”.

Taylor is not Saif’s appointed defence lawyer, and as such is not authorised to pass him any documents, from any source, that are not first authorised by the ICC. Saif has not yet appointed a defence counsel, and not until he has done so will that individual be at liberty to freely exchange correspondence with him.

Where to begin?  Perhaps by noting that Grant can’t keep his facts straight: in the first paragraph, he says (correctly) that Taylor has been appointed to represent Saif at the ICC, while in the third paragraph he says (incorrectly) that Taylor is not Saif’s appointed lawyer.  Both claims can’t be true.  Grant might also have mentioned that “Saif has not yet appointed a defence counsel” because Libya has consistently denied him that opportunity — and that, in fact, Saif specifically told the OPCD in its previous meeting that he wanted it to represent him at the ICC.  Finally, Grant simply invents the idea that the OPCD’s lawyers are required to have the Court authorize the exchange of documents with Saif; such a requirement not only doesn’t exist under the Rome Statute, Rules of Procedure, or Code of Conduct, it would be fundamentally at odds with the structure of the ICC, according to which “[t]he OPCD shall fall within the remit of the Registry solely for administrative purposes and otherwise shall function as a wholly independent office.”

As for the “dangerous” documents Taylor allegedly possessed, it’s revealing that Grant includes in that category “a letter from Saif in which he complains of mistreatment at the hands of his captors.”  Yes, such a letter is indeed dangerous — to a brutal and lawless regime that has consistently demonstrated its contempt for Saif’s rights as a suspect.  That’s why, assuming Grant is correct, Taylor had the letter; it’s her job to protect those same rights.  I’d also like to know what the Libyan government considers a “spy camera.”  I would not be surprised if the OPCD lawyers had a camera with them; a good defense attorney always documents his or her client’s condition.  Indeed, that documentation is particularly needed in Saif’s case, given that the Libyan government has consistently claimed that he has not been mistreated (contrary to Saif’s own statements).  Perhaps a “no camera” rule was part of the undefined “protocols” and “conventions” and “procedures” that Bob Carr has been citing as a reason for the ICC to apologize.  But if so, no apology is necessary.  Libya is not cooperating with the ICC if it won’t let the OPCD document Saif’s condition.

Berman Book Symposium: Closing Post by Dean Paul Schiff Berman

by Paul Berman

[Paul Schiff Berman is Dean and Robert Kramer Research Professor at George Washington University Law School.]

I want to thank all the participants in this online symposium both for their extraordinarily thoughtful comments on my book and for their many constructive interventions through the years as I have been developing these ideas.  I am blessed to be part of a truly supportive academic community, and these posts exemplify all that can be good about thoughtful academic discourse built on dialogue rather than one-upsmanship.  Such fruitful academic discourse should not be so rare, but that only means we must be especially grateful when true community is instantiated before our eyes.

As to the individual comments, I won’t respond to all of them.  Certainly, there are many aspects of our plural world that I wish were better reflected in the book.  As Janet Levit points out, I do not have nearly enough examples from the world of non-state law-making (mostly because they are more difficult to find and document).  Likewise, Jeff Dunoff is surely right that regime interaction is an area that deserves greater attention than I paid to it (and his work usefully provides such attention).  The same is true of the international financial regulation described by David Zaring.  Finally, Peter Spiro correctly identifies the difficulties inherent in deciding when a community is well-enough defined to justify recognition.  All of these are matters that further work will need to flesh out.

So, here let me confine my remarks to three quick responses and one small quibble.  Continue Reading…

Weekday News Wrap: June 21, 2012

by An Hertogen

Berman Book Symposium: Multiscalar Legal Pluralism and Justice

by Hari Osofsky

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

This post is part of our symposium on Dean Schiff Berman’s book Global Legal Pluralism. Other posts can be found in Related Posts below.

It is an honor and a pleasure to have the opportunity to participate in this conversation about Paul Berman’s exciting new book, “Global Legal Pluralism: A Jurisprudence of Law Beyond Borders.”  Like many of the commentators, I have had the privilege of watching this project evolve over several years.  The book is a tremendous contribution which reflects Paul’s command of numerous interdisciplinary literatures and substantive areas of law.  It makes an articulate and compelling case for taking a cosmopolitan and pluralist approach to law in an era of globalization.

My two primary interventions in this brief blog are not so much critiques of the book, as suggestions for directions Paul and others could go from here to explore these issues in additional ways.  First, as Paul and I have discussed for many years, I think his geographical analysis might be developed further by focusing on issues of scale more deeply.  Early on, I queried whether the book should be called “multiscalar legal pluralism” rather than “global legal pluralism.”  I wondered whether Paul could fully capture the interactions and institutional hybridity through focusing on the “global” or “international” levels.

Paul has done much to address that concern in the ways in which he has incorporated multiple levels of government, even using the term “multiscalar” in the context of discussing climate change federalism.  However, I would be excited to see him go even deeper in future explorations of scale in this context.  Specifically, I wonder what “global” or “international” means in a cosmopolitan and pluralist world.  To the extent that one accepts geographer Kevin Cox’s theory that each level is constituted by core interactions at that level and by interactions across levels (a theory that I often draw from in my own work), multiple visions of the international scale might result.  These possibilities for pluralism in defining global scale might impact the hybrid forms that Paul explores so thoughtfully.
Continue Reading…

Wikileaks Moves to Farce: Will Assange Live Out His Days in an Ecuadorian Embassy?

by Peter Spiro

Story here, and a lot of play on this morning’s BBC Newshour.  This is the second time in recent months that so-called “diplomatic asylum” has crept into the headlines, last with respect to Chen Guangcheng in China in May. See this earlier post, which links to an excellent Foreign Policy background piece on diplomatic asylum.

Unlike the Chen case, I doubt very much that the UK will agree to Assange’s safe passage out of the country on the way to Ecuador even if Ecuador grants him asylum (which itself seems like a stretch, insofar as the Swedish sex case against Assange hardly qualifies as political persecution, at least not as customarily conceived – but see the Embassy of Ecuador’s statement here). So the best Assange can hope for is a long stay in non-country house quarters.

Speaking of Ecuador, is it trying to revive its imperial ambitions, in some postmodern way? See this engaging piece by Frank Jacobs, the master of cartographic stories, coincidentally out today in the NY Times (calling Duncan Hollis: interesting treaty tales therein).

Explaining My Art. 89(2) Argument Regarding the Obligation to Surrender

by Kevin Jon Heller

Dapo Akande has just posted about the Pre-Trial Chamber’s recent conclusion that Art. 95 of the Rome Statute permits Libya to delay surrendering Saif to the Court pending resolution of its admissibility challenge.  I don’t want to rehash the general issue; readers can simply check out Dapo’s post and my post here.  Instead, I want to focus on the one issue that Dapo acknowledges the Pre-Trial Chamber ignored: namely, whether Art. 89(2) is mere surplusage in light of the PTC’s reading of Art. 95.  I say yes; Dapo says no, arguing that “these provisions deal with different issues as Art. 89(2) relates to a challenge before a national court while Art. 95 deals with admissibility challenges at the ICC.”

I have never denied that Art. 89(2) relates to a challenge before a national court, while Art. 95 deals with admissibility challenges at the ICC.  What I have pointed out is that, in practice, reading Art. 95 to suspend surrender for all admissibility challenges means that the Art. 89(2)’s suspension of surrender for a specific kind of admissibility challenge — one included in Art. 95 — is mere surplusage.  Here is Art. 89(2):

Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne bis in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility.

To see why the PTC’s reading of Art. 95 renders Art. 89(2) mere surplusage, we need to consider how Art. 89(2) would function in practice.  It contemplates a situation in which (1) the ICC asks a state to surrender a suspect to face international charges, and (2) the suspect, having previously been tried for the same conduct in a domestic court of that state, challenges his surrender in the domestic court on ne bis in idem grounds (Art. 20(3), in particular).  What happens then?  According to Art. 89(2), the state in question must consult with the Court concerning the admissibility of the suspect’s case.  If the Court has already deemed the case admissible, the state must surrender the suspect.  But if an admissibility challenge is still pending — one presumably brought by the suspect himself pursuant to Art. 19(2)(a) — the state is entitled to delay surrender until the Court resolves the admissibility challenge.

In short: under Art. 89(2), a state is entitled to delay surrender pending the resolution of an admissibility challenge based on ne bis in idem; under Art. 95, as read by the PTC, a state is entitled to delay surrender pending the resolution of an admissibility challenge brought on any grounds, including ne bis in idem.  The only difference is that Art. 89(2) deals with an admissibility challenge at the ICC initiated by the suspect instead of by the state — a situation that requires the suspect to go to domestic court to avoid surrender.  Under both articles, the state’s obligation to surrender the suspect is determined by the same consideration: whether there is an admissibility challenge pending before the Court.

Now we can see the basis for my argument: if Art. 95 permits a state to delay surrender pending resolution of any admissibility challenge, no matter who brings it, all Art. 89(2) challenges are included within Art. 95 — making Art. 89(2) mere surplusage.  And that is precisely how the PTC reads Art. 95: it did not hold that an admissibility challenge by a state permits the state to delay surrender; it held that any admissibility challenge permits such delay, including a challenge brought by a suspect.  Here is paragraph 37 (my emphasis):

In light of the above, the Chamber concludes that article 95 of the Statute is applicable to requests for arrest and surrender, pending determination of an admissibility challenge brought before the Court. Since it is the Chamber that has issued the warrant of arrest and the related request for surrender to the Court, the Chamber has the authority to decide that a state may postpone the execution of a surrender request to the extent that such a challenge has been properly made pursuant to article 19(2) of the Statute and rule 58(1) of the Rules.

Article 19(2) includes admissibility challenges made by suspects as well as by states.

Does this argument mean that it is completely clear the drafters of the Rome Statute wanted to permit a state to delay surrender when a suspect challenges admissibility on ne bis in idem grounds, but not when a state challenges admissibility on other grounds?  Absolutely not.  The Rome Statute is an imperfectly drafted document; the overlap between Art. 89(2) and Art. 95 could simply be a drafting error, thus justifying the PTC’s interpretation of Art. 95.  Indeed, I’m troubled by the permissive language in Art. 89(2) (“may postpone”); one would think that, since Art. 20’s ne bis in idem provisions are designed to protect suspects from being tried multiple times for the same conduct, Art. 89(2) would prohibit a state from surrendering a suspect pending resolution of his admissibility challenge.  It is also possible that, for some reason, the drafters felt it necessary to distinguish between admissibility challenges brought by suspects on ne bis in idem grounds (art. 89(2)) and admissibility challenges brought by states on any ground (art. 95), even though they wanted the the outcome — the state being permitted to delay surrender — to be the same in both situations.  (Although it is worth emphasizing again that the PTC did not read Art. 95 in that manner, because it held that Art. 95 applies to admissibility challenges brought by suspects as well as by states.)

I don’t know whether one of those possibilities is correct.  But I do know that the Art. 89(2) issue deserves more attention than it has received from either the PTC or from Dapo.  I hope the Appeals Chamber will address it.

Weekday News Wrap: June 20, 2012

by An Hertogen

  • The Commander of the UN observers in Syria has given more information on his decision to suspend the mission’s activities until both sides honor the peace plan. The same article also reveals that the Russian ship carrying military helicopters for Assad’s forces returned to Russia after its UK insurer revoked coverage.
  • Tensions have flared up along the border between Israel and the Gaza strip.
  • Wikileaks’ Julian Assange has sought asylum at the Ecuador’s embassy in London to avoid extradition to Sweden on sex charges.
  • The ICJ has ordered Congo to pay $95000 in damages to Guinea in the case concerning Ahmadou Sadio Diallo.
  • The United States and New Zealand have signed a defence pact.
  • At their meeting in Los Cabos, G-20 leaders have welcomed EU’s recent initiatives to develop a closer fiscal and banking union. The Leaders’ Declaration can be found here.
  • The Rio+20 agreement reached by negotiators to be approved by world leaders is criticized as too weak by various NGOs.
  • Following Mexico’s entry, which we flagged yesterday, Canada has now also joined the TPPA talks.
  • China has defended its rare earths export restrictions as justified by environmental reasons.

Foreign Minister Bob Carr Goes Shopping in the Department of Bad Ideas

by Kevin Jon Heller

So, you’re Bob Carr, Australia’s Foreign Minister.  You’ve decided you want to free Melinda Taylor, ICC lawyer, detained and imprisoned by the Libyan government.  You fly to Libya to meet with government officials.  Do you demand Taylor’s immediate release, citing the cooperation provisions of SC Res. 1970?  Do you remind the officials that their consistent refusal to allow Saif legal representation is undermining the government’s attempts to convince the international community that Libya has a credible criminal-justice system?  Do you threaten the emnity of the Australian government if Libya continues to wrongly detain an Australian citizen?

No, of course not.  Instead, according to an interview with Australian radio, you parrot the Libyan line and demand that the ICC apologize for Taylor’s actions:

BOB CARR: I accept absolutely the goodwill of the leadership and I believe that they want the detainees released. There’s no advantage for them in continuing the hold the four detainees or employees of the International Criminal Court.

What would help — what would help, I’m coming to a proposal and putting to the ICC, in the form of words from the ICC that expresses regret, even apology about approaches to this very fraught justice question, which weren’t preceded by agreement on protocol and conventions.

I believe that it would have been far better for the ICC to have settled with the government of Libya on the procedures before they sent Melinda Taylor and her colleagues into Zintan.


ALEXANDRA KIRK: So you’re offering to act as an intermediary?

BOB CARR: I’m happy to have Australia act as an intermediary, to see that the concerns of what is a democratic leadership at the head of a transitional council in Libya — in particular their prime minister, their foreign minister, their deputy prime minister.

Their concerns are reflected in ICC procedures and practices and protocols when it comes to what is an extremely emotional case inside this country, namely the treatment of the person who is now the embodiment of the dictatorship that oppressed and exploited the people of Libya for so many decades.

ALEXANDRA KIRK: How quickly do you think Melinda Taylor and her colleagues could be released?

BOB CARR: Too many imponderables to settle on a timetable or to place timing on the roadmap. But I think we’ve got a roadmap in place, and there is goodwill from the prime minister of Libya, remarkable goodwill.

Reading Carr’s interview literally left me so angry that I was speechless — although I’ve since regained my voice.  Carr could not have done a better job shilling for the Libyan government if he was on their payroll.  Emphasize the good intentions of the Libyan government?  Check.  Blame Taylor for her predicament?  Check.  Put the responsibility for a solution on the ICC?  Check.  Remind everyone that Saif was a really bad guy whom Libyans hate?  Check.

And notice what is not in the interview: even the slightest blame for the Libyan government for wrongfully detaining an Australian citizen who is working on behalf of an international organization — one to which Australia is ostensibly committed.

Berman Book Discussion: Notes From a Fellow Traveler

by Peter Spiro

This is a great book, and I am almost completely on board with the orientation here.  Paul is right on the money in navigating between the territorial sovereigntists on the one hand and the cosmopolitan universalists on the other. The critique of the universalists is especially key insofar as it persuasively rebuts a standard sovereigntist fallacy (along the lines of, the sovereign state may be imperfect, but it sure beats “world government”). The case studies — mostly involving state action and judicial action in particular — are less appealing to those of us with new governance instincts, but Paul is careful to qualify his project, or at least this part of his project, as focusing on the still vigorous pull of the nation-state. The theory works with non-state action as well (as Paul highlights along the way). International law scholars of all descriptions will find a lot to work with here.

I have two broad thoughts in response, one on the trumping effect of international law (even in a pluralistic system), the other floating questions of community recognition and boundaries. . .

Berman Book Discussion: International Law That Actually Matters

by David Zaring

[David Zaring is Assistant Professor of Legal Studies and Business Ethics at the University of Pennsylvania’s Wharton School]

This post is part of our symposium on Dean Schiff Berman’s book Global Legal Pluralism. Other posts can be found in Related Posts below.

Paul Berman is rethinking the global legal system with reference to both the plurality and the narrowness of modern community. That is, although we are subjects of a state, international law is driven often by the relationships that have little to do with borders or the usual blood or soil delimitations of state citizenship. These relationships – the linkages that create Berman’s cosmopolitanism – need not be broad ones. Berman’s international law can be a technocratic exercise affected by various small communities of the not always predictable interests that care about it. Big innovations in criminal law might be driven not by state interest, but by the elites and NGOs who believe in internationalizing it, and the reactions of the small number of officials who then must evaluate whether they need to worry about what international criminal law has become. The process of delineating interests that matter can have larger implications when conflicts and the exercise of jurisdiction turn a philosophical exercise by those who care into something on which the world’s litigants may find that their interests turn.

There are many things that can be said about the book, almost all of them laudatory, so I will limit myself to talking about the form of international regulation that I know best, and how I see it fitting into Berman’s cosmopolitan vision. Financial regulation is in many ways a case study for cosmopolitanism. It features cooperation across international boundaries. But it is not traditional international law. And it would be inaccurate to understand what is going on in international financial regulation as a mere clash between the domestic interests of states (though admittedly, political scientists such as David Singer and Abe Newman believe it to be about exactly that). In my view, what international financial regulation tells us is that cooperation among elites and among Haasian-style epistemic communities can create quite a disciplined legal system that, while surely imperfect, is a good representation of international law that actually matters.

In fact, international financial regulation in many ways represents the very cosmopolitanism that Berman praises, where international borders are porous, where communities of fate, be they bankers, regulators or investors, cross boundaries and in many ways have more in common with each other than they do with their fellow citizens in Moline or Leipzig. To be sure, there is more than just a we feeling in international finance. There are standards, created by a committee of agencies, that result in winners and losers. Still, the fact that this sort of international obligation creator exists suggests that instead of the old forms of treaty or customary law there are other forms of international obligations that might better be understood as transnational relationships and governance. They really matter, as political scientists like Bob Keohane and Joseph Nye recognized, and as legal scholars following Anne-Marie Slaughter have gone on to develop.

I think Berman’s vision of cosmopolitanism is one way to think about these institutions. And since I believe that the institutions are drivers of international obligations, Berman’s vision, in taking account of these institutions thus does more for the real world of international law, and the real work of international lawyers than do many other broad visions about how international obligations need to be understood.

The Supreme Court Is About to Rule on SB1070. Will Anyone Care?

by Peter Spiro

The Supreme Court’s decision in the SB 1070 case is imminent (the only suspense now being whether it gets a separate-day release from the health care case).  I think the Court will split the difference, upholding key sections of the law, striking down others.  The safest money has it validating the “papers, please” provision of the law under which AZ law enforcement must make a determination of immigration status where there is reasonable suspicion that an alien is in the country illegally.  Whatever else the decision holds, that will be cause for SB1070 proponents and restrictionists to claim victory.

But will it make any difference?

A new survey from ImmigrationWorks, a centrist policy shop with a business-oriented take, suggests not. In last term’s Whiting decision, the Court decided the narrower question of whether states could require employers use e-Verify where the federal law made it optional only (narrow in substance but also in reasoning – the issue boiling down to the interpretation of a single clause in a 1986 federal immigration statute).  The Court gave state-mandated e-Verify the green light.

The number of states that added mandatory e-Verify laws in Whiting’s wake: 0.

So it’s possible we’ll witness the same phenomenon even if the Court upholds key provisions of SB 1070. I think in any case the number of states that move to take advantage of new-found constitutional discretion will be very low. If so, that’ll prove a much more significant victory for immigrants than a victory in the Supreme Court – a more durable political one that could mark the beginning of the end of this cycle of hostility against newcomers.

Berman Book Discussion: Beyond the Boundaries of Berman’s Global Legal Pluralism

by Janet K Levit

[Janet K. Levit is Dean and Dean John Rogers Endowed Chair at the University of Tulsa College of Law]

This post is part of our symposium on Dean Schiff Berman’s book Global Legal Pluralism. Other posts can be found in Related Posts below.

In Global Legal Pluralism: A Jurisprudence of Law Beyond Borders, Paul Schiff Berman concludes that we live in a world of multiple norm-generating, but not necessarily territorially-based, communities, some sanctioned by the state and some not; these communities overlap in asserting norms and “adjudicating” law, creating hybrid legal spaces that are often “jurisgenerative.”  Berman argues that in an age of globalization, we should embrace this type of pluralism.  To the extent that the book is prescriptive, Berman looks to law, particularly procedural and conflicts law, to preserve and manage these hybrid legal spaces.

Since 2005, I have joined Berman in multiple symposia and panels, and I have commented on many of the articles and book chapters that are the building blocks for Global Legal Pluralism.  The long “gestation” period paid off – Global Legal Pluralism is a brilliant and eloquent weaving of Berman’s various scholarly threads.  While the book concludes in part that law is “messy,” the book’s argument is quite neat, tight, and logical.  Berman addresses and redresses the dominant critiques lobbed at his work over the years, showcases agility with interdisciplinary research, and demonstrates the value of legal scholarship that does not end with heavy-handed prescriptions.  Like all books of this breadth, there is room for critique.  Instead, in this post, I offer some broader thoughts on ways to push Berman’s outstanding work beyond its own boundaries and borders. Continue Reading…

Weekday News Wrap: June 19, 2012

by An Hertogen

  • Eight Turkish soldiers have been killed in South East Turkey during clashes with Kurdish PKK militants from Iraq.
  • Al-Qaeda has claimed responsibility for the killing of a senior military commander in Yemen.
  • After receiving her Nobel Peace Price on Saturday, Aung San Suu Kyi picked up Amnesty International’s Ambassador of Conscience Award in Dublin on Monday.
  • No case delays in Myanmar where 2 Muslim men have been sentenced to death for the rape and killing of a woman last month that led to sectarian violence.
  • ICAO’s Secretary-General has announced that he expects to have a plan to deal with aviation greenhouse gas emissions by March 2013, rather than by the end of 2012 as originally planned.
  • Mexico has been invited to join the negotiations on the Trans-Pacific Partnership Agreement, while Canada has not yet made the cut.
  • Presidents Obama and Putin issued a joint statement following their first meeting since Putin’s re-election.

Berman Book Discussion: Berman Agonistes

by Jeffrey Dunoff

[Jeffrey Dunoff holds the Laura H. Carnell Chair at Temple University Law School]

This post is part of our symposium on Dean Schiff Berman’s book Global Legal Pluralism. Other posts can be found in Related Posts below.

Paul Berman has produced a terrific, and terrifically ambitious, work of scholarship.  The book presents a compelling case that the current legal order is marked by multiple and overlapping international, transnational, national, sub-national and non-state normative orders.  Paul argues that relations among these various orders should be managed through a “cosmopolitan pluralist” approach that pays due respect to the interests that various norm-generating communities have in any particular dispute.  The text’s central jurisprudential and normative claim is that cosmopolitan pluralism is superior to its two main rivals, namely (i) universalist approaches that elide important normative differences among diverse communities, and (ii) territorially-based sovereigntist approaches that inappropriately privilege the interests of one community by ignoring the legitimate interests of others.

Although the “pluralist” strand of Paul’s argument promises to decenter the state as law-maker, ironically virtually all of the book’s examples of legal hybridity feature conflicts involving state law, such as competing claims for authority between two or more states (should the IP law of states A or B should govern the registration of internet domain names); between domestic and international institutions (such as the ICJ and US Supreme Court decisions in the Avena/Medellin line of cases); and between public and private actors (such as when religious and state law diverge on family law matters).

Perhaps as a result, GLP devotes very limited attention to analysis of “conflicts” between and among different functional international legal regimes, even though this issue has preoccupied public international lawyers for the better part of a decade (see here and here).  While Paul graciously cites to my work on regime interaction in his discussion of this phenomena (pp. 182-86), I wonder if GLP’s brief analysis does justice to this form of legal hybridity.

Continue Reading…

Berman Book Discussion: Paul Berman on Global Legal Pluralism

by Paul Berman

[Paul Schiff Berman is Dean and Robert Kramer Research Professor at George Washington University Law School.]

Thanks to Peter and all the other bloggers for providing an opportunity to explore the ideas in my recent book.

I start from the premise that 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. Yet law often operates based on a convenient fiction that nation-states exist in autonomous, territorially distinct, spheres and that activities therefore fall under the legal jurisdiction of only one regime at a time. Traditional legal rules have tied jurisdiction to territory: a state could exercise complete authority within its territorial borders and no authority beyond it. In the twentieth century, such rules were loosened, but territorial location remains the principal touchstone for assigning legal authority. If one could spatially ground a dispute, one could most likely determine the legal rule that would apply.

But consider such a system in today’s world. Should the U.S. government be able to sidestep the U.S. Constitution when it houses prisoners in “offshore” detention facilities in Guantánamo Bay or elsewhere around the world? Should spatially distant corporations that create serious local harms be able to escape local legal regulation simply because they are not physically located in the jurisdiction? When the U.S. government seeks to shut down the computer of a hacker located in Russia, does the virus transmitted constitute an act of war or a violation of Russia’s sovereignty? How can we best understand the complex relationships among international, regional, national, and subnational legal systems? Does it make sense to think that satellite transmissions, online interactions, and complex financial transactions have any territorial locus at all? And in a world where nonstate actors such as industry standard-setting bodies, nongovernmental organizations, religious institutions, ethnic groups, terrorist networks, and others exert significant normative pull, can we build a sufficiently capacious understanding of the very idea of jurisdiction to address the incredible array of overlapping authorities that are our daily reality? . . .

Berman Book Discussion: Paul Berman’s “Global Legal Pluralism”

by Peter Spiro

We’re delighted this week to host a discussion of Paul Schiff Berman’s “Global Legal Pluralism: A Jurisprudence of Law Beyond Borders” (Cambridge University Press). Paul is the Dean and Robert Kramer Research Professor of Law at George Washington University Law School. This is a rich and broadly argued book (Paul confesses to being a “lumper,” I think in the best sense). From the jacket:

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. 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. 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.

We’ll be joined for the roundtable by Jeff Dunoff (Temple Law); Janet Levit (Tulsa Law); Hari Osofsky (Minnesota Law); and David Zaring (Wharton), along with members of the regular OJ team. We’ll look forward to a stimulating discussion of Paul’s important new book.

Weekday News Wrap: June 18, 2012

by An Hertogen

The Appeals Chamber Says Goodbye to Moreno-Ocampo…

by Kevin Jon Heller

In early May I discussed the OPCD’s motion to disqualify Moreno-Ocampo for making a number of inflammatory statements to the press concerning Saif Gaddafi’s guilt.  On June 12, just four days before the end of Moreno-Ocampo’s tenure as prosecutor, the Appeals Chamber rejected the motion — but not without emphasizing that he had, in fact, acted unethically.  The decision focused on an interview that Moreno-Ocampo gave to Vanity Fair, in which he made, inter alia, the following statements…

The Case of Enrica Lexie: Lotus Redux?

by Duncan Hollis

The Lotus Case is a pillar of international legal education.  Generations of international law students have studied the PCIJ’s opinion that Turkey had not acted in conflict with principles of international law in prosecuting a French national — Lieutenant Demons — for his role in the collision of a French steamer — the S.S. Lotus — with a Turkish vessel — the Boz Kourt — resulting in the death of 8 Turkish sailors and passengers.  The staying power of the Lotus decision is all the more remarkable in that its specific holding has long since been superseded.  The Court’s view that a ship is part of a State’s territory no longer holds.  The 1952 Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in matters of Collision limited jurisdiction over collisions on the high seas to the flag state or the state of nationality of the crew, a position reiterated in Article 11 of the 1958 Geneva Convention on the High Seas and now Article 97 of the 1982 UN Conventions on the Law of the Sea (“In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national“).

Now comes the case of the Enrica Lexie, which seems destined to test the lessons of Lotus and the international maritime law it engendered (the case even has its own Wikipedia entry).  The Enrica Lexie is an Italian-flagged tanker, which in addition to a crew, had a detachment of six Italian marines on board to deter pirate attacks.  On February 15, 2012, two of those marines shot and killed two Indian fisherman on board a fishing boat, the Saint Antony. The facts surrounding the incident are still contested.  The location of the shooting remains disputed, with claims that it occurred at 14 or 22 nautical miles off of India’s coast.  Moreover, the events leading up to the shooting are equally murky.  The marines and crew of the Enrica Lexie insist they only fired warning shots against what they believed was a pirate craft, which may or may not have been the Saint Antony or some as yet-unidentified third vessel.  They also insist they had first tried to use other signals to deter the craft’s approach.  In contrast, the fishing crew suggests they were waiting for the tanker to pass when they were fired on without provocation.

When the Enrica Lexie ended up in an Indian port a few days later (whether it did so voluntarily or under the direction of the Indian Coast Guard is disputed), the two marines were detained and eventually charged with murder under the Indian Penal Code. The two were subsequently released on bail on May 30. The next court hearing on the case is scheduled for tomorrow, June 18.

Although I’ve yet to review the Indian law directly, India appears to base its prosecution on domestic laws allowing jurisdiction where a crime is committed against Indian citizens on an Indian ship. Furthermore, India has relied on the SUA Convention as a basis for granting it jurisdiction.  That treaty — to which both India and Italy are parties, seeks to ensure appropriate legal action against certain offenses, including, under Article 3(1)(a) and (g), acts of violence against persons on board a ship likely to endanger its safe navigation that results in death or injury.  Article 6 further requires a State to “take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 3 when the offence is committed: (a) against or on board a ship flying the flag of the State at the time the offence is committed . . .”

Italy, meanwhile, has vociferously insisted that it has jurisdiction over the incident.  In April, Italy paid 10 million rupees to the families of each of the two victims to settle any civil claims.  But it continues to contest any Indian prosecution, saying that (i) the marines are elements of the Italian State and are entitled to sovereign immunity and (ii) that any prosecution should occur under Italian law given that they were on an Italian flagged vessel in international waters. An Italian prosecutor has opened her own investigation into the shooting.

In short, this case looks a lot like Lotus with Italy playing the role of France and India taking on the Turkish assignment.  There are significant differences, of course, in the facts of the two cases, and those differences may in the end lead to a different outcome.  That said, as I discuss below the fold, I do think both cases raise similar basic questions about the nature of the international legal order, which explains why we still study the Lotus 85 years on and why attention to the Enrica Lexie should not be limited to the populations of Italy and India.

Will Compulsory Dispute Settlement Sink the LOS Convention in the Senate?

by Craig H. Allen

[Craig H. Allen is the Judson Falknor Professor of Law at the University of Washington School of Law in Seattle.]

Let me again thank Opinio Juris for hosting this exchange of views on the Law of the Sea Convention and Julian for his timely efforts in facilitating the exchange.  The other four contributors each raise important considerations that warrant serious attention and critical assessment by the SFRC in the coming months. With Julian’s permission, I’d like to briefly respond to two points concerning the Convention’s ECS revenue sharing and CDS provisions, with particular attention to the latter.

Extended Continental Shelf Revenue Sharing: It has long been apparent that views differ on the requirement for revenue sharing for non-living natural resource extractions from the extended continental shelf (ECS) under Article 82 of the LOSC. For some, the requirement to share up to 7% of the revenues outweighs the Convention benefits.  In weighing the potential long-term cost to the U.S. of that revenue sharing provision (which, as Mr. Groves correctly notes, cannot now be accurately determined), I believe it’s important to view it in the historical context of the seaward march of continental shelf claims since 1945.  As coastal state claims expanded from 3 miles to the 100 fathom (600 ft) isobath under the statement accompanying the 1945 Truman Proclamation (an area Truman asserted comprised only 750,000 square miles—roughly one-fifth the size of the U.S. EEZ today), to the 200 meter isobath (or limits of exploitability) under the 1958 Convention on the Continental Shelf and to the present formula extending up to 350 miles seaward of the baseline or 100 miles seaward of the 2500 meter isobath, that expansion has come at the expense of the deep seabed beneath the high seas common to all states.  Whether 67 senators will conclude that sharing up to 7% of the revenue from ECS mineral extractions is too high a price to pay for the certainty provided by a binding decision of the Commission on the Limits of the Continental Shelf—particularly with respect to claims among the contiguous Arctic states—and a reasonable concession for extending the juridical shelf well beyond the original Truman declaration remains to be seen.

Compulsory Dispute Settlement:  Professor Rabkin has articulated several concerns regarding the Convention’s compulsory dispute settlement (CDS) provisions.  While I disagree with some of his views on the potential effect of an arbitration decision and question the fit of his ICC analogy to the LOSC, he is not alone in his concerns.  As with the ECS revenue sharing issue, the question remains how many senators are likely to agree to compulsory dispute settlement on LOSC issues.  How many will accept the burdens—and the benefits—of CDS if the other treaty benefits are significant?

I don’t claim any unique insight into how the senate will view the Convention’s CDS provisions. It might be useful, however, to examine the senate’s views on CDS requirements in other maritime treaties, which arguably provide a better analogy to the LOSC than the Rome Statute. This brief table (compiled somewhat hastily) might serve as a useful starting point.





Geneva LOS Conventions (High Seas, TTS/CZ, Continental Shelf and HS Fishing), Optional Protocol on Compulsory Dispute Settlement



Failed 2/3 Senate (49 for; 30 against)

Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (Article VIII & Annex)





Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation – “SUA” (Article 16; reservation to CDS permitted)

1988 and

2005 Protocol




Implementation Agreement on Straddling and Highly Migratory Fish Stocks (Article 30)


Generally follows LOSC Part XV


Protocol to London Dumping Convention (Article 16)


Arbitration or      LOSC Pt XV

Pending in SFRC since 2007

Highly Migratory Fish Stocks of Western/Central Pacific (Article 30)


Follows the SFS Agreement



With respect to the 1988 SUA Convention, in its advice and consent to the SUA Convention’s 2005 Protocol, I believe the senate attached a reservation rejecting CDS (see S. Exec. Rept. 110-25).

Two other data points to be considered relate to the International Court of Justice. As this audience knows, in 1985 the U.S. revoked its 1946 optional clause declaration filed under Article 36(2) of the Statute of the ICJ (subject to the Connally and Vandenberg Reservations).  And on March 7, 2005, shortly after the ICJ issued its judgment in the Avena case, the U.S. revoked its consent to CDS under the Convention on Consular Relations (by my last count, only 48 of the 178 CCR parties have accepted CDS).  It should be noted that both actions were taken by the president, not the senate.  It should also be noted that, whatever the views on the ICJ, the draft SFRC declarations in 2004 and 2007 recommend general or special arbitration, not the ICJ, for disputes under the LOSC.

With respect to the argument that the ITLOS might insert itself into a WMD-smuggling terrorist interdiction action by the US by invoking the Convention’s “prompt release” provisions for vessels and crews, I believe it’s clear that Article 292 only applies when the detaining state has not complied with a provision in the Convention requiring prompt release.  Those provisions are found in the EEZ living marine resources and Marine Environmental Protection provisions (Articles 73(2), 220(6),(7) and 226(1)(b)), where the coastal state is limited to “monetary penalties” (Articles 73(3) and 230) and the enforcing state is entitled to require the detained vessel to post reasonable security.  The 1997 ITLOS decision in the M/V Saiga case is not to the contrary.  While the tribunal majority briefly opined that it seemed “strange” that a prompt release action might not be available in cases where detention of the vessel is not permitted by the Convention (para. 53), it ultimately based its decision on Article 73, not an expansive view of Article 292.  I read Article 113(1) of the 2009 Rules of the Tribunal as confirming this limited scope.

Comparing senate actions spanning more than 50 years and across different maritime subjects is admittedly of only limited utility. I also acknowledge that I have not directly addressed US and senate views on compulsory arbitration as an alternative to adjudication (perhaps other OJ readers have done research into senate attitudes toward international arbitration on maritime law issues).  The Minority Views in the SFRC’s 2007 report on the Convention (S. Exec. Rept. 110–9, at 26) reflect a concern with how the fifth arbitrator will be chosen if the disputing parties cannot agree (after they each choose their two arbitrators).  The Minority Views also singled out the ITLOS decision on Ireland’s request for provisional measures in the MOX Plant case (pending constitution of the Annex VII arbitration panel) and argue that, in the Minority’s view, “There is almost no limit to what any smart international lawyer could do with these pollution provisions.”

In the end, I offer no prediction on how the senators of the 112th Congress will decide.  I do, however, agree with Julian in his opening assessment that the LOSC “has become a symbol in the United States of the promise and perils of joining a global governance regime” and echo his hope that we can “improve upon what has so far been a very disappointing public debate on this topic.”  The views presented by the other four distinguished and thoughtful participants Julian recruited for this on-line debate are certainly a good start.

Upcoming Events: June 17, 2012

by An Hertogen


Calls for Papers

  • The American Society of International Law is looking for panel and paper proposals for its 2013 Annual Meeting, International Law in a Multipolar WorldSubmissions should be in before June 22, 2012.
  • The Refugee Law Initiative (RLI) of the Human Rights Consortium at the School of Advanced Studies of the University of London invites submissions to its Working Paper Series. Submissions are accepted on a rolling basis. For more information, please contact ruvi [dot] ziegler [at] law [dot] ox [dot] ac [dot] uk.
  • The Institute for Transnational Arbitration is organizing its second Annual Winter Forum in Miami on January 24-25, 2013. It is calling for abstracts of works-in-progress on a broad variety of topics related to international commercial arbitration and international investment law. Abstracts are due by September 1, 2012 and need to be sent to ITAWinterForum2013 [at] gmail [dot] com.  Proposals should be made in a Word document that is no longer than 1,000 words.  The cover email should indicate your affiliated institution, your contact details and whether your paper has been submitted or accepted for publication elsewhere.  Priority will be given to unpublished papers and works-in-progress. There will be the opportunity to publish final papers in the World Arbitration and Mediation Review. Please direct any enquiries to Joseph Matthews or Jarrod Wong.

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.

Weekend Roundup: June 9 – 15, 2012

by An Hertogen

This week on Opinio Juris, we launched our first Readers’ Survey. Your input is valued so we hope you will find a spare ten minutes to complete yours if you have not yet done so. If you want, you can enter your e-mail address in the draw to win a $100 Amazon gift voucher.

In our regular posts this week, Kevin Jon Heller asked about publishing etiquette when reviewing a journal essay that has already been published as a substantial blog post. Many readers offered their views in the comments. Kevin also discussed Moreno-Ocampo’s heated exchange with the Sudanese Ambassador at the UN and argued that diplomatic immunity should extend to lawyers with the ICC’s Office of Public Counsel for the Defence based on para. 5 of SC Res. 1970.

Deborah Pearlstein discussed two commentaries on the NY Times reports on targeted killings and argued that what is necessary to advance the debate is a stable definition of what it means to be at war, and Duncan Hollis discussed a debate addressing whether there should be an international treaty on cyberwarfare.

Julian Ku asked whether the equality guarantee under the ECHR requires the Church of England to perform same sex marriages and noted how Public Citizen’s objections to the negotiations on the Trans-Pacific Partnership Agreement are similar to those traditionally made by right-wing sovereigntists. He also discussed a change in stance by the US government in the Kiobel case, as it now argues that the complaints lack a sufficient nexus to the US.

Two guest posts discussed the Charles Taylor sentencing judgment, published last week. Mark Drumbl remarked how the judgment reflected traditional international law by taking into account as aggravating factors the extra-territoriality of Taylor’s acts and his status as a head of state. Dov Jacobs focused on the limits of international criminal law in addressing mass atrocities.

Another focus this week was the debate in the US on accession to the UN Convention on the Law of the Sea. Julian Ku discussed an op-ed by Donald Rumsfeld announcing his opposition. Julian then introduced the Opinio Juris discussion here. Favoring accession, Craig Allen criticized the argument that the US has nothing to gain from accession since the most of the Convention reflects customary international law; James Kraska argued that UNCLOS is a force multiplier for American power; and John Noyes defended the Convention’s regimes on fisheries, oil and gas, and seabed minerals, as promoting US interests. On the second day of our debate, introduced here by Julian, Jeremy Rabkin cautioned against accession because of the risk that compulsory arbitration might interpret treaty rules in ways contrary to US interests. Steven Groves partially agreed with the arguments in favor of accession but argued that the overall benefits are outweighed by the costs.

As always, we also had our two regular features: the overview of upcoming events and the weekday news wraps.

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

Why I Think the Detained ICC Personnel Are Entitled to Diplomatic Immunity

by Kevin Jon Heller

It will not come as a surprise to regular readers that I am appalled by Libya’s detention of Melinda Taylor, a lawyer with the ICC’s Office of Public Counsel for the Defence, and her translator.  There is no evidence that Taylor has done anything wrong; indeed, as Mark Kersten notes, it seems eminently possible that her detention is simply a way to blackmail her into revealing the whereabouts of one of Saif’s henchmen.  Moreover, no one who knows Taylor — as I do a little — could ever believe that she was acting anything but professionally in her dealings with Saif.

That said, I was struck by the following paragraphs in a recent (and excellent) post on the Atlantic website by my Wronging Rights friends, Amanda Taub and Kate Cronin-Furman:

The reason established governments wouldn’t do anything like this is that Taylor and her colleagues were in Libya on official ICC business and are therefore entitled to diplomatic immunity. Regardless of what the Libyans claim the ICC staff members did — and regardless even of whether they actually engaged in any wrongdoing — they cannot be detained, investigated, charged, tried, or punished.

Diplomatic immunity may seem like a trivial matter compared to the weighty issues Libya has faced — war and peace, dictatorship and democracy — but, as the oldest and most inviolable principle in international law, how it’s treated here will have ramifications far beyond Libya. At the height of the Cold War, the U.S. and the Soviet Union honored the immunity of each other’s diplomats, even when those diplomats were suspected of being spies… Even countries that are actively at war nearly always honor the immunity of each other’s officials. Immunity is the sinew that binds together so much of international relations. Without it, diplomacy, treaty negotiations, and the very existence of international organizations would all collapse into impossibility. In short: it is a very big deal.

And yet, thus far, there has been no global outcry in response to this violation of the ICC staff members’ immunity. In particular, the UN Security Council’s silence has been deafening, especially because the ICC got involved in Libya at the Security Council’s express request. Apparently, the Council is willing to send the court’s employees into dangerous situations, but can’t be bothered to issue a press release if their safety is threatened as a result.

Whether Taylor and her translator are entitled to diplomatic immunity in Libya is a difficult question.  As I understand it, the diplomatic immunity of international organizations is explicitly treaty-based; there is no such immunity under customary international law.  And no treaty specifically provides Taylor and her translator with diplomatic immunity.  The Convention on the Privileges and Immunities of the United Nations applies only to UN officials, which Taylor and her translator are not.  There is also a Convention on the Privileges and Immunities of the Specialized Agencies, but the ICC is not a specialized agency.  And although the Court itself has an Agreement on the Privileges and Immunities of the ICC (APIC), Libya has not ratified the agreement (which is not surprising, because it has not ratified the Rome Statute).

All that said, I do think there is a persuasive argument in favor of immunity: paragraph 5 of SC Res. 1970, which provides, as part of the Security Council’s referral of the situation in Libya to the ICC, that “the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.”  The cooperation obligation in paragraph 5, I believe, requires Libya to honor the substantive provisions of the APIC; the argument parallels Dapo Akande’s compelling claim that the Security Council’s referral of the Darfur situation implicitly removed Bashir’s Head-of-State immunity.  Basing immunity on paragraph 5 seems much stronger to me than arguing that all members of international organizations have immunity under customary international law.  Moreover, emphasizing paragraph 5 should serve as a stark reminder to the Security Council that it has a legal — and not simply moral — obligation to do everything in its power to end Taylor and her translator’s indefensible detention.

UNCLOS: A Response to Professors Kraska, Noyes, and Allen

by Steven Groves

[Steven Groves is a Bernard and Barbara Lomas Fellow at The Heritage Foundation in Washington D.C.]

Many thanks to Julian Ku for inviting me to participate in this UNCLOS debate on one of my favorite websites.

There is much I agree with in the posts of Professors Kraska, Noyes, and Allen.

Professor Kraska correctly emphasizes the victory achieved by U.S. negotiators at UNCLOS III in regard to codifying navigational regimes, particular the regime of transit passage through international straits.  Transit passage, along with archipelagic sea-lanes passage and the refinement of the “innocent passage” regime through territorial seas, are indeed the crown jewels of the Convention.  What must be understood, however, is that the United States need not accede to the Convention in order to benefit from its great successes at UNCLOS III.  The navigational provisions reflect customary international law, binding on all nations regardless of their membership or non-membership in UNCLOS.  In Professor Kraska’s words, “the navigational provisions are set in stone, and all of the benefits inure to maritime power.”  I could not agree more.

I also agree with Professor Noyes that accession would allow the United States to submit claims regarding the U.S. “extended continental shelf” (ECS) beyond 200 nautical miles to the Commission on the Limits of the Continental Shelf (CLCS) in New York.  Where we may part ways is whether such submissions are necessary either to (a) achieve international recognition of the U.S. ECS, or (b) foster development of the U.S. ECS by oil companies.  Indeed, the United States has successfully delimited key areas of its ECS in the Gulf of Mexico, the Bering Sea, and the Arctic Ocean via bilateral treaties with Mexico and Russia.  The CLCS procedure would arguably result in Uruguay and Uganda’s recognition of the limits of the U.S. ECS, but I doubt that it’s necessary to attain the recognition of those countries (or any other country with whom the U.S. does not share a continental shelf border) in order to develop the resources of the U.S. ECS.

U.S. and foreign oil companies appear to agree, since they are spending millions of dollars for leases on areas of the U.S. ECS in the Gulf of Mexico in an area called the “western gap.” The U.S.has offered ECS blocks located on the western gap in 19 lease sales held between August 2001 and March 2010. In connection with those sales, seven U.S.companies (Burlington, Chevron, Devon Energy, Hess, Mariner Energy, NARCA Corporation, and Texaco) submitted bids to lease blocks in the western gap. Five foreign companies—BP, Eni Petroleum (Italy), Maersk Oil (Denmark), Petrobras (Brazil), and Total (France)—also bid on western gap ECS blocks during those sales. The U.S. Treasury received more than $47 million in bids in connection with lease sales on those blocks.

Of the approximate 320 blocks located in whole or in part on the western gap ECS, 65 (approximately 20 percent) are currently held under active leases by nine U.S. and foreign oil exploration companies, including BP, Chevron, Cobalt International Energy, Eni, Maersk, Petrobras, Total, Statoil (Norway), and Union Oil.

Regarding the transfer of hydrocarbon royalty revenue pursuant to Article 82, we are probably going to have to agree to disagree, but the central fact is this: There has been no comprehensive study to determine the value of the oil and natural gas that lies beneath the U.S. ECS, which in total is reportedly twice the size of California. How can we be expected to conduct a proper assessment of the financial impact of U.S. accession to UNCLOS if the value of the natural resources on the U.S. ECS is unknown? If the value of U.S.hydrocarbons on the ECS is unknown then so too is the amount of royalty revenue that the U.S.will ultimately forgo if it accedes to the Convention.  Accession to UNCLOS therefore amounts to an open-ended international commitment to transfer an indefinite sum of royalty revenue (indefinite, but likely in the tens if not hundreds of billions of dollars) to the International Seabed Authority for redistribution to developing and landlocked nations.

Professor Allen’s post reflects, I believe, the current state of the debate—one school of thought that maintains the U.S. doesn’t need UNCLOS so it should avoid the potential costs of accession, and another school that wants to pocket the Convention’s benefits and believes that the costs are either nonexistent or de minimis.  For many years, the bulk of the testimony heard in the Senate and the vast majority of the ink spilled in law review articles and op-ed pages extolled only the virtues of UNCLOS without even a passing reference to the potential costs.  Over the past several years, however, more and more discussion of the potential costs—real or imagined—has occurred.

My view is that there are at least two significant costs associated with accession:

UNCLOS and The Risks of Compulsory Arbitration

by Jeremy Rabkin

[Jeremy Rabkin is Professor of Law at George Mason University School of Law.]

I entirely accept what James Kraska says about the benefits of the navigation rules in UNCLOS.  But when Kraska and others say these rules are favorable, they mean the UNCLOS rules – as American officials would interpret them.  Unfortunately, UNCLOS doesn’t leave it up to American officials to interpret these rules.  When there are disputes, the treaty provides that they will be settled by compulsory arbitration. So we need to think about the ways international arbitration panels might interpret – or as it may be, twist and distort – these rules.  Projecting what international arbitrators will do in future disputes is as much a question of international politics as of settled treaty law.   It’s not enough to say that legal analysts for the Navy (or the Coast Guard) could interpret them in reasonable ways.  They won’t be in charge of the arbitration panels. To grasp the point, think for a moment about the International Criminal Court.   The crimes set out in the Rome Statute are taken, word for word, from treaties which the United States has already ratified or which it already regards (for the most part) as restatements of customary international law.   The ICC is also bound by procedural rules and a regulation on Elements of Crimes, which American military lawyers say addresses most American concerns about potential prosecutorial abuses.  Nonetheless, no president, no presidential candidate, no secretary of state has recommended that the U.S. join the ICC.   We don’t so much dislike the substantive provisions of the ICC’s code.  We just don’t trust an international tribunal to have the last word in judging American military conduct.

Weekday News Wrap: Friday, June 15, 2012

by Jessica Dorsey

U.S. Government Stabs Kiobel ATS Plaintiffs in the Back

by Julian Ku

OK, that is a little overdramatic.  Still, the U.S. government has effectively switched sides in the upcoming Supreme Court case: Kiobel v Royal Dutch Shell.  In the first incarnation of this case, the U.S. government had filed a brief supporting the petitioners and rejecting the lower court’s holding that corporations cannot be sued under the Alien Tort Statute.

But in a supplemental amicus brief filed in response to the Court’s request for reargument, the U.S. is now arguing that the Kiobel case should be dismissed because the case lacks a sufficient nexus to the U.S.  While rejecting an “across-the-board categorical rule” barring all ATS cases that involve activities occurring in foreign jurisdictions, the U.S. government seems to be arguing that cases where the United States government could not be held responsible for the actions of defendants should fall outside the ATS. From p. 3 of the brief:

The relevant question is whether a court should create a federal common-law cause of action today to redress an alleged international law violation, in light of present-day criteria for recognizing private rights of action and fashioning federal common law. The text of the ATS, a jurisdictional statute, does not answer that question. Courts, however, should be guided at least in general terms by the legislative purpose to permit a tort remedy in federal court for law-of-nations violations for which the aggrieved foreign nation could hold the United States accountable, which is an important touchstone for determining whether U.S. courts should be deemed responsible for affording a remedy under U.S. law. See Sosa, 542 U.S. at 714-718, 722-724 & n.15.

The brief goes out of the way to distinguish Sosa (which was dismissed on other grounds and involved U.S. government conduct anyway) and Filartiga (where the U.S. might have been accused of harboring a war criminal since the defendant had immigrated to the U.S.).  I don’t know why the USG reversed itself here, although Trey Childress provides some very informed speculation here.

In any event, I agree with the brief’s view that the ATS could not possibly have been intended to embroil US courts in disputes between foreign parties for actions occurring in foreign jurisdictions where there was no connection to the U.S. government.  More importantly, I am fairly confident that Justices Kennedy, Roberts, and Alito will be convinced by this argument, especially when it is made by the U.S. government.  So I think the defendants will get five votes, and might even get more than five votes, to dismiss this case. (After all, the Court unanimously dismissed the TVPA claim in Mohamed v. Palestinian Authority).

The harder question will be whether the Court will consider drawing some sort of general “across the board” rule to guide lower courts in cases involving different fact patterns.  What happens if the corporation that is acting abroad is a U.S. national? Or if the foreign corporate subsidiary was directed by a parent corporation in the U.S.?  Would this kind of nexus be sufficient to trigger ATS jurisdiction?  And what about the original question of corporate liability under the ATS, which was the issue in the lower court?  I am all in favor of the Court deciding all issues that are fairly in front of it, but I can imagine good reasons for them to send this one back to the lower courts.

Stay Tuned for Day Two of the UNCLOS Ratification Debate

by Julian Ku

I wanted to thank Professors Allen, Kraska, and Noyes for their contributions to our discussion on US ratification of UNCLOS. I’ve learned a great deal from their posts and I hope our readers have as well. I wanted to remind our readers, however, that we will hear from two leading scholars tomorrow — Jeremy Rabkin and Steven Groves — who will offer reasons why the U.S. should not ratify UNCLOS.  Indeed, Steve was busy today testifying in the afternoon session of the Senate Foreign Relations Committee’s hearing on the Law of the Sea.  His written testimony, along with those of Donald Rumsfeld, John Negroponte, and John Bellinger, can be found here.  And with no disrespect to Messrs Rumsfeld and Negroponte, the most testimony from the hearing worth reading is that provided by Steve and John Bellinger.  We look forward to hearing from Steve and Jeremy tomorrow.

Ocean Resources and U.S. Acceptance of the LOS Convention

by John Noyes

[John E. Noyes is the Roger J. Traynor Professor of Law at California Western School of Law.]

The U.S. Senate Foreign Relations Committee is currently holding hearings on U.S. acceptance of the 1982 Convention on the Law of the Sea, as modified by the 1994 Part XI Implementation Agreement (the “LOS Convention”).  The Committee favorably reported the LOS Convention in 2004 and again in 2007, but the full Senate did not vote then.  162 parties, including all major powers except the United States, have accepted the Convention.

The hearings take place in a highly partisan political environment.  Yet U.S. acceptance of the LOS Convention is receiving much high-level support from across the political spectrum.  Military leaders support U.S. accession, for reasons James Kraska explores in his post.  Other supporters include:  U.S. oil and gas companies; U.S. telecommunications companies with undersea cables; U.S. shipping companies; Lockheed Martin, the lone U.S. company still holding U.S. licenses for deep seabed hard mineral exploration; environmental organizations; past U.S. State Department Legal Advisers; former Republican Secretaries of State Henry Kissinger, George Shultz, James Baker III, Colin Powell, and Condoleeza Rice; and Presidents George H.W. Bush, Bill Clinton, George W. Bush, and Barack Obama.

I appreciate Julian Ku’s invitation to discuss the LOS Convention’s complex resources provisions.  Let me introduce some basics concerning the exclusive economic zone (EEZ) and fisheries, the continental shelf and oil and gas resources, and seabed mineral resources beyond the limits of national jurisdiction, and explore why accepting the Convention would promote commonly perceived U.S. interests.

First, the Convention allows coastal states to regulate fisheries in the EEZ, extending up to 200 nautical miles from baselines, where ninety per cent of commercial fish are found.  In the EEZ coastal states may exclude foreign fishing or license it on their own terms and conditions.  (Other rules, most developed in accordance with the 1995 U.N. Fish Stocks Agreement that the United States ratified in 1996 and through law other than the LOS Convention, govern fish stocks that range beyond the EEZ.)  The U.S. coastal fishing industry has benefited enormously from EEZ fishing rights, because the United States has the world’s largest EEZ.  Existing U.S. law already tracks the Convention’s EEZ fishing provisions, which are not now controversial.  But if the basic concept of an EEZ and the Convention’s EEZ fisheries provisions now seem grounded in customary international law, other EEZ Convention provisions are not so secure.  EEZ-related arguments favoring U.S. accession focus on Article 58’s guarantee of freedom of navigation and overflight for all states in EEZs.  U.S. officials document a “resurgence of creeping jurisdiction” by coastal states within their EEZs that threatens U.S. navigation.  U.S. acceptance of the Convention will allow the United States to affirm EEZ and other navigational rights as treaty law.  U.S. acceptance may well decrease the need for this country to spend dollars, use force or political capital, or make concessions on other fronts to try to assert those rights as a matter of customary international law or new bilateral treaty law.

Using UNCLOS as a Force Multiplier for American Power

by James Kraska

[Dr. James Kraska, Commander, U.S. Navy, is the Howard S. Levie Chair of Operational Law at the U.S. Naval War College]

Thanks for the opportunity to talk a bit about the major national security and strategic interests of the United States in the UN Convention on the Law of the Sea (UNCLOS). It is also a pleasure to exchange thoughts on the subject, and I respect Jeremy Rabkin’s work on sovereignty and international law—although I expect we have some difference of view on the law of the sea. I believe UNCLOS is a key enabler of America’s strategic position in the world and an essential force multiplier for our military security and economic prosperity.

The International Law of the Sea: A Treaty for Thee; Customary Law for Me?

by Craig H. Allen

[Craig H. Allen is the Judson Falknor Professor of Law at the University of Washington School of Law in Seattle.]

I would like to begin by thanking Opinio Juris for hosting this timely and important debate on the 1982 Law of the Sea Convention (LOSC) and Julian Ku in particular for inviting me to participate.  My small contribution begins with two caveats.  First, this brief post is by no means a comprehensive examination of the Convention, but rather is limited to the commonly-heard assertion that customary law adequately protects U.S. interests, rendering accession to the Convention unnecessary. Second, having closely followed the Convention for more than three decades and in particular the 2004 and 2007 SFRC hearings and the debates they provoked within and beyond the Senate, I have come to believe there are three identifiable audiences out there.  There are the true believers within both the proponent and opponent camps.  Whether by predisposition, deference to the judgment of another or a prior examination of the Convention, these two groups have already irrevocably committed to their positions.  It is the third group, comprising those who will support ratification of treaties that on balance serve national interests and reject those that fail to do so, and are still uncertain where the LOS Convention falls, that I hope to reach.

The arguments in favor of ratification (technically accession) are many and mostly well-informed, though occasionally exaggerated. Although some of the arguments against ratification appear to reflect what I believe is a misunderstanding of the text of the Convention or excessive skepticism regarding the adequacy or efficacy of the 1994 Implementation Agreement in remedying the U.S. objections to the original 1982 Part XI provisions for deep seabed mining, it would be wrong to dismiss all of the objections as unfounded or, as some have done, launch personal attacks against the opponents.  What some might consider bothersome drawbacks or minor flaws in the Convention that the historical record demonstrates were a necessary, if not entirely welcome, quid pro quo to obtain the convention’s benefits, the opponents might reasonably condemn as fatal to the ratification decision, no matter how attractive the quids might be.

Should the U.S. Ratify the UN Convention on the Law of the Sea? A Debate and Discussion

by Julian Ku

From the first class I ever took on international law, I’ve heard (mostly negative) references to the U.S. refusal to ratify the UN Convention on the Law of the Sea.  I’ve heard again and again throughout my studies about how the U.S. was shirking its global responsibilities as well as how the U.S. was hurting its own national interests by failing to join UNCLOS.  Indeed, the US reluctance to ratify UNCLOS has become a reliable talking point to raise when international law scholars are decrying the evils of American exceptionalism.  Even within the U.S. debate, the critics of US ratification have been derided as extreme and not entirely rational (as Secretary Clinton’s reference to UNCLOS opponents as the “black helicopter” crowd” reminds us).

As readers of this blog are aware, I have more than a casual interest in UNCLOS, not just for its substantive impact on international relations, but also because it has become a symbol in the United States of the promise and perils of joining a global governance regime. (see my posts here and here for a taste.) The current US debate over UNCLOS, which takes place in competing op-eds, is far from satisfactory. Proponents are derided as one-worlders seeking to destroy American sovereignty.  Critics are derided as right-wing nutcases.

In my view, UNCLOS is a tough call. Like many treaties, there are good parts and bad parts (from the point of view of the United States).  But whether the good outweighs the bad is something I am not really sure of.

I am far from an UNCLOS expert, however, so I have asked several experts on UNCLOS to debate US ratification on Opinio Juris over the next two days.    We’ll begin today with three posts from thoughtful proponents of US ratification:  Craig Allen, James Kraska, and John Noyes.  Professors Allen and Kraska will focus on the navigational rights question, and Professor Noyes will discuss the effect of UNCLOS’ rules for the exploitation of natural resources.  On Friday, we will give two sharp and effective critics of US ratification — Jeremy Rabkin and Steven Groves —  their chance to respond.  After that, I will open it up to allow both sides to post response to each other.

My goal here is to help readers understand what issues are behind the US debate over UNCLOS ratification, and to improve upon what has so far been a very disappointing public debate on this topic.

Weekday News Wrap: Thursday, June 14, 2012

by Jessica Dorsey

Left Wing Sovereigntism! Public Citizen Assaults Investor-State Tribunals

by Julian Ku

Public Citizen, an anti-free trade group based here in the U.S., sent around an email detailing its objections to a leaked draft text of the ongoing TransPacific Partnership negotiations, which would create a massive Pacific free-trade zone.  Its main complaint is not actually to the free-trade portion of the agreement, but to the proposals for a robust investor-state dispute resolution mechanism.  What I find interesting is how many of its objections (from the anti-free trade left) echo the type of arguments often made by what Peter Spiro would call the sovereigntist right.

Although TPP has been branded as a “trade” agreement, the leaked text shows that TPP would limit how signatory countries may regulate foreign firms operating within their boundaries, with requirements to provide them greater rights than domestic firms. The leaked text reveals a two-track legal system, with foreign firms empowered to skirt domestic courts and laws to directly sue TPP governments in foreign tribunals. There they can demand compensation for domestic financial, health, environmental, land use laws and other laws they claim undermine their new TPP privileges.

The leak also reveals that all countries involved in TPP talks – except Australia – have agreed to submit to the jurisdiction of such foreign tribunals, which would be empowered to order payment of unlimited government Treasury funds to foreign investors over TPP claims. As revealed in Section B of the leaked text, these tribunals would not meet standards of transparency, consistency or due process common to TPP countries’ domestic legal systems or provide fair, independent or balanced venues for resolving disputes between sovereign nations and private investors. For instance, in a manner that would be unethical for judges, the tribunals would be staffed by private sector lawyers that rotate between acting as “judges” and as advocates for the investors suing the governments.

This analysis evokes visions of shadowy international tribunals with broad powers and biased (maybe even corrupt) judges. Like critics of other kinds of international tribunals, the criticism here is somewhat over the top, but there is a kernel of truth to it. Public Citizen is ignoring, however, that few domestic legal systems would meet the standards of transparency, consistency, or due process they are demanding either.  In any event, it will be interesting to see if  sovereigntism will find fertile ground on the American political left.

Should There Be an International Treaty on Cyberwarfare?

by Duncan Hollis

That’s the question being asked this past week over at US News & World Report‘s Debate Club.  To answer it, US News assembled 7 experts who, with the exception of Bruce Schneier, replied in some form of the negative (see e.g. the responses of Herb Lin (no, or not yet), James Lewis (it’s not workable) Sean Lawson (it would be premature, unnecessary, and ineffective); Martin Libicki (focusing on international norms would be better); John Lindsay (it’s the wrong sort of solution); and Lawrence Muir (it’d be ineffective)).

Now, I’m a big fan of several of the contributors — I love Herb Lin‘s NAS work on the difficulties of distinguishing cyber-exploitations (aka espionage) from cyber-attacks (which don’t just steal information but harm the computer network or the infrastructure it supports); Martin Libicki‘s work on cyber deterrence is simply a must-read for anyone interested in thinking about military and State operations in cyberspace; while James Lewis and Bruce Schneier have well-deserved reputations for thinking deeply about cybersecurity issues.  And, the responses, short as they are, make for great (and occasionally) provocative reading.  That said, I’ve got three complaints about the set-up and the content of the so-called “debate” itself:

1) Where is the international law view?  Seven experts were invited to comment on whether or not a treaty is a good idea, and not one of them is an international lawyer?  That’s like asking whether IPv6 is a good idea and not including the views of a computer programmer.  Of course, other views are welcome, but it would certainly have helped the debate to include someone who works with treaties for a living.  And, to be clear, it’s not like international lawyers have uniform views on this issue — I’m pretty sure Jack Goldsmith is much cooler to the treaty form than I am, but I still think he’d offer different or additional rationales than the one’s posed so far.

2) Outside of Russia, does anyone really want a treaty on cyber arms control? The US News question suggests — and many of the responses assumed — that the only possible way a treaty can regulate cyberthreats would be through some analogue to a Cold War arms control treaty or a treaty banning cyberwar in the same way the Kellogg Briand Pact purported to ban warfare.  Now, it’s true Russia and a few others have pushed for such results, but those efforts have never really garnered much, if any, support in the West. Thus, I think focusing the debate onto this question misses the larger issue, namely, whether there should be some treaty or treaties dealing with cyberspace more generally?

Will the ECHR Require the Church of England to Recognize Gay Marriage?

by Julian Ku

I haven’t been following this issue at all, but I found this discussion on the possible ramifications of a UK gay marriage law fascinating.The Church of England has put out a paper suggesting (among other things) that any UK law that does not guarantee the right to religious solemnization of gay marriage would violate the ECHR’s equality guarantee. I don’t know if the Church is right about this, but it certainly sounds plausible. And it is an interesting argument that strengthens the Church’s opposition to a UK gay marriage law: Don’t pass this domestic law because an international law will require us to amend it beyond what we would all otherwise agree to.

Is US Ratification of UNCLOS Doomed? Former US Defense Chief Rumsfeld Announces Opposition

by Julian Ku

Former U.S. Secretary of Defense Donald Rumsfeld has an op-ed in the WSJ announcing his opposition to US ratification of the UN Convention on the Law of the Sea.  The op-ed is probably meant to soften the force of an earlier WSJ op-ed by former Republican Secretaries of State calling for US ratification. He is also testifying on Thursday at a Senate Foreign Relations Committee hearing.   Rumsfeld’s opposition may make a difference since the question of ratification is really a debate within conservative and Republican circles (Democrats appear to be fully on board).  Rumsfeld was the chief emissary of the Reagan Administration on the treaty negotiations back in 1982, and he presumably advised President Reagan to reject the treaty (which Reagan did).  On the other hand, the new 1994 version of the treaty was supposed to cure the problems Rumsfeld found in 1982.

Still, Rumsfeld appears to be pretty hard-core on this issue.  Rumsfeld’s opposition may have been one reason the Bush Administration did not aggressively push for ratification until 2007 (after he resigned from his post).  I think Rumsfeld’s opposition may be enough to get opponents to their magic number (34). I think opponents are already close to that anyway, so this may put them over the top. (I find this vote count by Mark Leon Goldberg fairly convincing. It is going to very close.).

What exactly is Rumsfeld’s objection to the treaty? What are the good (and bad) arguments for US ratification? Well, we at Opinio Juris are also interested in this question, which is why we are hosting an online debate on US ratification of UNCLOS starting tomorrow and extending into Friday. We’ll begin tomorrow with posts from supporters of US ratification and we’ll allow opponents to share their views on Friday.  I hope we can use this discussion to highlight what the real differences are between the two sides and what will likely influence the Senate’s ultimate decision on this question.

Weekday News Wrap: Wednesday, June 13, 2012

by Jessica Dorsey

Weekday News Wrap: Tuesday, June 12, 2012

by Jessica Dorsey

Guest Post: Suffering Victims and Collective Crimes: The Limits of International Criminal Law

by dov jacobs

[Dov Jacobs is an Assistant Professor of International Law at Leiden University. He can be followed on his blog, Spreading the Jam]

On the 30th of May, the SCSL sentenced Charles Taylor to 50 years in prison. The sentencing judgment raises a number of interesting issues. some commentators, such as William Schabas, or on this blog, Marina Aksenova, have discussed the length of the sentence, finding it either too long, or adequate, depending on the preferred objectives of criminal justice (rehabilitation, retribution, deterrence). Wherever one stands on this issue, I think that, despite it being common practice in a number of international judgments, handing down a single sentence for the entire array of crimes convicted, rather than having them individualized does not help achieve the goals one ascribes to sentencing. Indeed, how can there be deterrence, if there is no knowledge that a specific crime for which a person is convicted carries a specific sentence? There is also a problem of predictability, because we don’t know what the judges would have decided if Taylor had for a reason or another been acquitted on one of the counts. The only thing that can be taken out of the sentencing is that it is condemnable to generally participate in the events, and the fact that a couple of crimes more or less took place in the course of things becomes irrelevant.

Which brings me to the main point I want to address here: the limits of criminal law in addressing mass atrocities, both because of the question of gravity (A) and because of the collective dimension of the acts (B).

A) The question of gravity

I have often commented on Spreading the Jam on the difficult assessment of the criteria of gravity in the ICC framework. In a nutshell, given the fact that the ICC, and international tribunals in general, are competent to prosecute the gravest crimes of interest to the international community as a whole, how does one define…

Targeting Again

by Deborah Pearlstein

The temptation is strong to write about the Supreme Court’s decisions this morning to deny review to the latest set of Guantanamo detainee cases to come before it. The denials of certiorari effectively let stand the decisions of the D.C. Circuit Court of Appeals, which has yet to find a detainee entitled to relief. But I’ll save the role of the courts discussion for a later post.

For now, I didn’t want to let go without comment the interesting set of commentaries that followed recent reports of President Obama’s intimate involvement in decisions about whom to target in U.S. global counterterrorism operations. David Luban’s thoughtful essay on the morality of targeted killing in the Boston Review last week is among the more balanced pieces I’ve come across on the topic, and unquestionably worth reading. Drawing on recent articles describing President Obama’s direct involvement in targeting decisions as informed in part by just war theory, Luban puts his finger on a truth about targeting that has largely been lost in the public debate: that targeted killing (by drones or otherwise) is sometimes moral (and legal) and sometimes not.

My one disappointment with David’s piece – and this is less a criticism of the piece than of his otherwise legitimate choice to focus on the moral substance of the law of war, rather than the applicability of that law per se – is that it felt like it was talking past one of the central sources of debate about contemporary targeting policy. Namely, that the legality (or not) of these operations turns in many (perhaps most) cases on one’s answer to the question whether an armed conflict exists within the meaning of international law. The Obama Administration, supported by authorizations by the U.S. Congress and interpretations by (at least) the federal courts of appeals, thinks there is a non-international armed conflict between the United States and Al Qaeda and “associated forces.” The rest of the world isn’t quite so sure, particularly when it comes to the still somewhat obscure definition of who counts as “associated forces.”…

Guest Post: The Charles Taylor Sentence and Traditional International Law

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).]

Assuredly, discussion of the Charles Taylor sentence might revolve around its length – 50 years, for a 64 year-old man – and the proportionality between such a heavy sentence and the fact that most (but certainly not all) of his criminal culpability arises from aiding and abetting.

But other aspects of the sentencing judgment also deserve commentary. Two, in particular, show how the sentencing judgment sits within, and complements, the comfortable folds of traditional international law. I am thinking, first, of the emphasis on the extraterritoriality of Taylor’s acts as an aggravating factor and, second, the fetishization, again as an aggravating factor, of his status as Head of State.

In the past two decades, international law has taken a number of bold steps: to insist that intra-state atrocities and armed conflicts become judicialized rather than ignored; that a broad swath of perpetrators, including leaders of non-state actors, face accountability; and that Head of State status really isn’t that special and, therefore, privileges such as immunities should be thinned.  There is thus something countercultural in emphasizing Taylor’s status as a Head of State who meddled in armed conflict within his sovereign neighbor to accent the greater repugnance of his crimes.

Let’s take a closer look:

1. Extraterritoriality as an aggravating factor

Weekday News Wrap: Monday, June 11, 2012

by Jessica Dorsey

Please Complete our Readers’ Survey and Have a Chance to Win a $100 Amazon Voucher

by An Hertogen

Dear Readers,

After seven years of broadcasting our opinions, we’d like to know your opinion about us, so from today until July 11 we’re holding our first Opinio Juris Readers’ Survey. We’d like to know who are readers are, what they think about the blog and what they would like to see on the blog. The blog and the blogosphere have evolved a lot since Peggy, Chris and Julian first started in January 2005, and your answers will help us in creating an ever improving experience for what we think is an exciting medium of legal discussion and scholarship.

Participating shouldn’t take more than 10 minutes and your answers are guaranteed to be anonymous so please don’t hold back!

If you want, you can enter your e-mail address in the draw to win a $100 Amazon gift voucher. Your e-mail address is collected separately from the answers to the survey.

Thank you very much in advance for your participation,

The Opinio Juris team

Idle — and Ridiculous — Threats Courtesy of Moreno-Ocampo

by Kevin Jon Heller

Like most people who believe in international criminal justice, I’m frustrated by the Sudanese government’s ability to stonewall the ICC regarding its innumerable crimes in Darfur.  But reactions like these don’t help:

Moreno-Ocampo, who stands down as ICC chief prosecutor in two weeks, called on the Security Council to take tougher action to detain President Omar al-Bashir and other Sudanese officials wanted for war crimes and genocide in Darfur.

Sudan’s UN ambassador accused the prosecutor, however, of investigating for “political motives” and giving “wrong information” about the conflict in which the UN says more than 300,000 people have died since 2003.

Sudan rejected all of Moreno-Ocampo’s recommendations, said ambassador Daff-Alla Elhag Ali Osman.

Following the fiery attack, Moreno-Ocampo said his office would investigate the ambassador’s comments.

“His activities denying the crimes in Darfur could be considered part of the crimes,” Moreno-Ocampo told the council.

The ICC will “investigate if Mr Daff-Alla Elhag Ali Osman’s denial of the crimes committed could be considered a contribution to the perpetrators, acting with a common purpose.”

He said “appropriate measures” would be taken if investigators decided there was a case for a formal inquiry.

Give me a break.  I’m not even going to dignify Moreno-Ocampo’s claims with a legal analysis.  There is, quite simply, nothing to be gained by these kind of intemperate comments.  They just make Moreno-Ocampo and — worse — the OTP seem childish and petty.

Fatou Bensouda can’t replace Moreno-Ocampo soon enough.  In the meantime, I suggest that the ICC’s judges invoke their plenary power and order Moreno-Ocampo to stop talking.

Upcoming Events: June 9, 2012

by Jessica Dorsey

Calls for Papers

Upcoming Events

  • The TMC Asser Institute will host Professors Nicholas Tsagourias and Terry Gill for a lecture entitled: “Cyber Warfare” in its occasional Hague Initiative on the Law of Armed Conflict (HILAC) Lecture Series on June 12, 2012 in The Hague.
  • The Sixth Annual Conference on the Political Economy of International Organizations is happening February 7-9, 2013.

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.

A Question for Readers About Publishing Etiquette (Minor Update)

by Kevin Jon Heller

Dear readers, I need your advice.  I was recently asked by a good journal to peer review a short essay about international criminal law.  The essay was quite good, and I would have had no qualms about recommending its publication, but I had the strangest sense of deja vu as I read it.  It didn’t take me long to realize why: the author had published a version of the article as a blog post on a major international-law blog — one of which he/she is not a member.  That would not necessarily have been a deal-breaker for me, but the blog post reproduced verbatim nearly 80% of the article’s text — basically, it was the article, minus the footnotes.  As a result, I informed the journal that although the article was very good, I could not recommend publishing it.  I also suggested that, if they were not bothered by the duplication, they should ask another reviewer to take a look at the article.  I think that was the right decision, especially as the journal did not indicate to me that it was aware the article had previously been published on a blog.  But I still feel a bit conflicted — the author is not a professor and is not necessarily aware of publishing conventions.  I would love to hear from others about what they would have done in my situation.

UPDATE: In response to Alec’s comment below, I have updated the post to make clear that this was not a self-posted entry; the author submitted the post to the blog in question and the blog agreed to publish it.  If that affects anyone’s opinion, please let me know in the comments.

Weekend Roundup: June 2-8, 2012

by An Hertogen

This week on Opinio Juris, we are happy to announce that the blog is now available on Kindle devices to our US readers. This new feature allows you to read the blog even when you are not wirelessly connected, and we hope that those of you who are often on the road will appreciate it. We of course welcome any feedback.

As always, you could rely on Kevin Jon Heller this week to keep you up-to-date with developments at the International Criminal Court. On Saturday, he was not convinced by the ICC’s Pre-Trial Chamber’s decision that article 95 of the ICC Statute applies to requests for surrender, and it was not only because they did not agree with him on this point. Later in the week, he was more positive about the OTP’s response to Libya’s challenge to the admissibility of the cases against Saif Gaddafi and Abdullah al-Senussi. Further on international criminal law issues, Marina Aksenova argued in a guest post why Charles Taylor’s sentence is adequate.

Kevin congratulated the Chief International Co-Prosecutor of the ECCC, Andrew Cayley, on taking silk in England, and the editors of a new book on International Prosecutors to which he contributed a chapter.

Other recent scholarship by our permanent bloggers includes Roger Alford’s recent article on the WTO Security exception, which although self-judging is rarely invoked in bad faith by WTO Members. Julian Ku’s book with John Yoo was discussed in a podcast with Martin Flaherty and at an American Enterprise Institute conference on the impact of globalization on US sovereignty of which Julian posted a video that also featured Opinio Juris’  Peter Spiro.

In other posts, Julian placed a bet that the EU would eventually give in to political pressure over its controversial decision to include international aviation in its Emission Trading Scheme, Ken Anderson discussed the alphabet soup of UN agencies and Duncan Hollis welcomed Cyber Dialogue to the blogosphere.

At the start of the week, we hosted a symposium on the new edited volume on Targeted Killings, introduced here by Jens David Ohlin. On Monday, Craig Martin and Jens discussed whether in the armed conflict paradigm jus ad bellum or jus in bello principles should govern the legality of targeted killings, and the related question whether an armed conflict with al-Qaeda exists. The distinction between jus ad bellum and jus in bello, was also central to Richard Meyer’s comments on Tuesday of Col. Maxwell’s chapter on status-based targeting. John C. Dehn provided the response. On Wednesday, the discussion dealt with the distinction between the armed conflict paradigm versus the law enforcement paradigm. Andrew Altman commented on Fernando Tesón’s proposal to take a middle ground between the two paradigms to which Fernando Tesón responded here.

Continuing on the subject of targeted killings, John C. Dehn provided another guest post criticizing John Yoo’s statements that Obama is micro-managing the drone attacks.

Finally, as usual, we also brought you the weekday news wrap and a list of upcoming events and call for papers.

Thank you very much to our guest contributors and have a nice weekend!

Should the President (Micro?) Manage Drone Attacks?

by John C. Dehn

Not according to John Yoo. Believing a recent NY Times article to be accurate, Yoo criticizes the President for “personally select[ing] the targets and approv[ing] each operation” and characterizes this as “an incredible misuse of presidential time and a serious distortion of proper war management.” Yoo more recently posited, in response to reports of al-Libi’s successful targeting, “the greater threat to security comes from Mr. Obama’s micromanagement of the drone campaign.” I find these views ironic given Yoo’s consistently expressed belief that the President alone — not Congress, not the courts, not the armed forces (or its lawyers) — possesses plenary power to wage war on behalf of the US in virtually (if not) any manner he deems expedient.

As a former OLC lawyer, Yoo should well know the legal reasons that the President may feel obligated to select targets beyond Afghanistan’s borders. In the Authorization to Use Military Force (AUMF), Congress empowered the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” (emphasis added) Additionally, one of Yoo’s favorite Supreme Court cases (judging from his OLC opinions), the Prize Cases, may indicate that the President is constitutionally (or perhaps statutorily) vested with responsibility to determine whether a threat to the United States should be countered by resort to war measures:

“Whether the President in fulfilling his duties, as Commander in-chief, … has met with such armed hostile resistance … as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted.” (emphasis added)

The administration has repeatedly asserted that drone attacks are undertaken either pursuant to the AUMF or as independent acts of national self-defense. In either situation, both statute and case law indicate that the President must determine whether a given individual or entity is a proper object of the nation’s war powers. It certainly strengthens the government’s litigation position in the face of inevitable challenges.

This is not to say that the President must select every target in an ongoing conflict…

(Continue reading via link)

Opinio Juris Now Available for Kindle Users!

by Jessica Dorsey

In our pursuit to make Opinio Juris more accessible to our readers, we are now offering the option of reading the blog on your Kindle device through Kindle Publishing. Kindle blogs are auto-delivered wirelessly to your device so you can stay up-to-date throughout the day.

You can find the link to subscribe here. You will receive a 14-day free trial when you initially subscribe, and if you enjoy the service, just $0.99 per month will allow you Kindle access to all of our content.

A small caveat is that we have run into issues for readers with Amazon accounts outside of the US and UK as well as those with Kindle apps on other platforms (e.g., on a tablet or smartphone instead of a Kindle device), and we’re looking into this (it has to do with publishing rights on Amazon itself; not with our permissions); but for now, we hope this new service offers another option for many of our readers who are on-the-go to catch up on the latest discussions and topics on Opinio Juris. Try it out this weekend—and feel free to send on feedback if you have it.

Happy reading!


All You Ever Wanted to Know About Non-Self-Executing Treaties…

by Julian Ku

Prof. Martin Flaherty of Fordham was gracious enough to join me for a (short) podcast hosted by the Federalist Society on my book (co-authored with John Yoo) Taming Globalization. Marty takes John and I to task for our analysis of non-self-executing treaties and our lack of analysis of congressional-executive agreements.  One of his most salient points is that our book argues for an international agreement-making process that is way too onerous to be practical or to fit within the Framer’s original understanding of the U.S. Constitution. I have some responses: 1) It’s not really that hard since many treaties today are non-self-executing; 2) the Framers envisioned at least some non-self-executing treaties could be made.  In any event, it is not a long podcast and Marty’s thoughts on most questions is definitely worth listening to.

Weekday News Wrap: Friday, June 8, 2012

by Jessica Dorsey

The UN’s Alphabet Soup of Entities

by Kenneth Anderson

(Amended:  Kevin suggests in the comments that this is a cheap shot at the UN, and after sleeping on it, I agree.  I’ve amended it, but in case anyone wants to see what Kevin is objecting to – and I agree he’s right that it’s unnecessary sarcasm – the original is below the fold.  I’ve amended the title as well.)

Economist blogger Emma Bond quotes an email (including the above post title) mentioning a UN entity with the following title:

Open-ended Ad Hoc Working Group of the General Assembly on the Integrated and Coordinated Implementation of and Follow-up to the Major United Nations Conferences and Summits in the Economic and Social Fields

(H/T Hayes Brown and his Water’s Edge blog.)  The email is somewhat sarcastic about the oft-remarked alphabet soup of UN agencies.  But it points to another feature of the UN, often remarked upon by managerial experts at the UN itself, viz., that though there are many mechanisms for creating agencies and entities, it has far fewer mechanisms for eliminating them once created, whether because the original purpose has gone away, the functions performed by one actor duplicate those of another or have been absorbed, or because whether the function is useful or not, it should be eliminated to free up resources for other things.  While this is generally true of national governments, particularly large ones, the highly diffuse nature of the UN and its institutions, along with many vested interests – some national and some internal to the UN itself – makes the problem more intractable.

It is not an irrelevant question at the moment, however, given the increasing pressures on the UN budget (rather budgets, given that peacekeeping, in particular, is larger than the mandated UN budget) with developed world governments in difficult times.  Budget negotiations over the general budget were strained this cycle, as even the Europeans, for obvious reasons, pressed to hold down budgets – but at the same time budgets have been creeping up.  Budget negotiations over the peacekeeping budget were just wrapped up a few days ago, and likewise showed the strain of increased pressure to do more peacekeeping – particularly given that it is widely perceived as a useful and fairly effective activity, despite the problems with procurement corruption scandals, sexual abuses by peacekeeping forces, and other questions of operations management – at a time when developed countries are under fiscal pressures.

One suggestion I make in my book, Living with the UN – one that is also frequently heard among UN efficiency experts inside the organization or hired to consult to it – is that the UN simply ratchet down the number of conferences, international meetings, roadshow events taking place in places other than the UN’s existing centers.  They are expensive and it is unclear what the long run value is as compared to simply undertaking the activity in existing venues, and often using existing processes.  I suggest that the US adopt this as policy and simply announce that it is going for a moratorium on international conferences in favor of undertaking the actual negotiations giving rise to the conference in the venues and processes already existing.  Pretty obviously, this is not a suggestion that is going anywhere, but it points to the difficulties in forcing highly diffuse UN agencies to have to make internal tradeoffs over scarce internal resources.

Continue Reading…

OTP Responds to Libya’s Admissibility Challenge

by Kevin Jon Heller

The Office of the Prosecutor has filed its response to Libya’s challenge to the admissibility of the cases against Saif Gaddafi and Abdullah al-Senussi.  There are a number of interesting aspects to the response.  First, it says nothing about the case of al-Senussi.  That’s a curious omission, given that the response specifically points out with regard to Saif (para. 41) that he remains in the custody of the Zintan rebels, making it possible that Libya is “unable” to prosecute him.  If there is an open question about Libya’s ability to prosecute Saif, there is a gaping question about its ability to prosecute al-Senussi, who remains in Mauritanian custody.

Second, the OTP clearly affirms in its response that states can prosecute international crimes as ordinary crimes without necessarily running afoul of the principle of complementarity.  As it says in para. 23:

There is no requirement that the crimes charged in the national proceedings have the same “label” as the ones before this Court. The Statute does not set out to regulate how States may choose to incorporate crimes within the jurisdiction of the Court into their national legal system. There is no requirement under the Statute, for example, for States to adopt legislation incorporating the crimes listed in Article 6 through 8 into national law.  Therefore, there may be discrepancies in the way a particular act is criminalized under the Rome Statute and under national law.

This is clearly correct, for reasons I discuss in this essay.

Third, and finally, the OTP explains at length why the absence of due process in a national prosecution, though regrettable, does not make a case admissible before the Court.  Here are the relevant paragraphs, which — to my pleasant surprise — rely heavily on my essay on the topic

When Will the E.U. Cave on Its Extraterritorial Airline Emissions Tax?

by Julian Ku

Maybe the EU will stick to its guns on its controversial airline emissions tax, but I somehow doubt they will not eventually be forced to cave.

(Reuters) – Senate lawmakers and the Obama administration on Wednesday stiffened their opposition to a European law that targets emissions from commercial jetliners and applied new pressure on Brussels and the United Nations to resolve global concerns.

In a rare display of election-year bipartisanship, Democratic and Republican members of the Commerce Committee and the administration’s top transportation official called the EU standard that puts a price on pollution unworkable.

I’ll note that both China and India (as well as other countries) have reacted even more harshly to the proposed EU tax.  The ECJ has held that the EU tax does not violate international treaties or customary law.  This seems plausible to me, but I wonder if the political pushback the EU is getting will ultimately force it to back off.  I’m betting yes. Any readers more knowledgeable about this issue, however, are welcome to share their thoughts in the comments.

The Self-Judging WTO Security Exception

by Roger Alford

I have just published an article in the Utah Law Review that I wanted to flag for our readers. The focus is on the WTO security exception, one of the least appreciated aspects of WTO law. Given that the security exception is self-judging, it is curious that Member States rarely abuse the privilege by invoking it in bad faith. This is in turn raises interesting questions about compliance with international law: if a Member State has a trump card to avoid legal obligations, why does a Member State not invoke it more frequently? Scholars rarely focus on the question of why nations obey international law in the context of self-judging treaty exceptions. The WTO security exception affords that opportunity.

Here’s the abstract:

This Article analyzes the WTO security exception, with a particular focus on State practice. In the absence of any GATT or WTO jurisprudence, State practice affords the best vehicle to understand the meaning of Article XXI. In the few instances when invocation of the security exception has been challenged, State practice suggests that the security exception is not judicially reviewable.

A critical question emerges from this analysis of State practice. If a Member State can avoid WTO obligations through a self-judging security exception, what is to prevent bad faith invocations? The WTO regime includes a number of devices to address this concern, including opting out of normal trade relations, opting in to deeper trade relations, granting preferential treatment to developing countries consistent with security interests, and protecting against the nullification or impairment of Member States’ legitimate expectations even in the absence of a WTO violation. These arrangements provide broad discretion to act in furtherance of the national interest without violating trade rules. As such, Member States quite often can advance national objectives without the need to invoke the security exception.

Notwithstanding these mitigating factors, a self-judging security exception poses grave risks. If abused, it could undermine the entire WTO regime. But the practice of WTO Member States is to invoke the security exception in good faith, with a margin of discretion. A Member State may do so because of a fear of sanction, out of a sense of norm legitimacy, or because it is in its self-interest to do so.

The Article concludes with brief reflections on why nations comply with the good faith obligation of a self-judging exception. Compliance with a self-judging rule offers useful insights into larger questions of why nations obey international law. Rational choice and normative theories best explain compliance with a self-judging international norm.

Weekday News Wrap: Thursday, June 7, 2012

by Jessica Dorsey

Globalization and U.S. Sovereignty: The Contours of an Academic and Policy Debate

by Julian Ku


This past Monday, my Taming Globalization co-author John Yoo and I hosted a number of scholars at an American Enterprise Institute conference to discuss the impact of globalization on U.S. sovereignty.  We were fortunate to have the participation of smart and interesting scholars like Tom Lee of Fordham Law, Tai-heng Cheng of New York Law School and Quinn Emanuel, our own Peter Spiro, Michael Glennon of Tufts, Jeremy Rabkin of George Mason, and John Fonte of the Hudson Institute.  We of course did not get to everything, but I think we did sketch out the contours of the very real academic and policy debate over the proper US attitude and relationship toward international law and institutions.   This post will offer a brief summary of our discussion so you can decide whether you want to click through to the video and watch parts of it yourself.  The conference was also followed by a very interesting set of remarks from U.S. Senator John Kyl of Arizona, whose discussion I’ll address in a separate post.

Welcome to the Blogosphere Cyber Dialogue!

by Duncan Hollis

Just a quick note of welcome to a new blog from my friends at the University of Toronto’s Munk School of Global Affairs.  As I noted a while back, Ron Deibert and others have been putting together a great annual interdisciplinary conversation about cyberthreats, the most recent of which was Cyber Dialogue 2012.  Now they’re moving the conversation into blog form.  The first post deals with recent discussions of the Flame virus and the need to emphasize its political ramifications. Given the existing Cyber Dialogue network, I’m confident this blog will benefit from great contributors and great readers.  I’m looking forward to adding it to my daily stack of must-reads.


Targeted Killings Symposium: Fernando Tesón Responds to Andrew Altman

by Fernando Teson

[Fernando Tesón is Tobias Simon Eminent Scholar and Professor of Law at Florida State University College of Law.]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

Andy Altman offers what I see as a friendly amendment to my piece on targeted killings. There I make a few central claims:

1) A state may not declare war on terrorists and then help itself to the tools of warmaking –essentially, the right to kill enemies on sight wherever they are found.  Thus the language of “war on terror” is a dangerous misdescription, because it suggests that government can unilaterally abolish the permissibility of killing persons without any kind of process. I take it Andy concurs.

2) In a “peacetime setting” such as Paris or New York, the state may not kill a terrorist unless it complies with very strict conditions: the killing is necessary to avert a terrorist plot, the terrorist is culpable (in  a sense that I specify), and the government has a just cause (which, according to my definition of “terrorist”, a liberal government always has). Andy does not challenge this.

3) However, following the laws of war, I accept that terrorists may be permissibly killed in a “wartime-setting.”  Andy doubts this, and suggests that all I need is the peacetime standard in (2). He claims that in wartime settings such as Afghanistan all we need is increased governmental cooperation in order to aprehend terrorists. Presumably, this implies that terrorists are after all, private persons, not soldiers, and this makes the “killing-on-sight” standard problematic.  But all I meant by preserving the permissibility of killing in these kinds situations was to acknowledge that sometimes terrorists fight armies in battlefields, even if they don’t wear uniforms.  Recall that the morality of such killings is dependent on the severe strictures of just war theory, including just cause, proportionality (governed by some version of the doctrine of double effect), and the like. Any possibility of abuse I try to fend off by requiring a strict interpretation of what is a wartime setting; thus Abbottabad (certainly no Paris) was not a wartime setting.

4) I offer a new definition of terrorist. A terrorist is a principled evildoer, that is, someone who not only employs immoral means (kills innocents) but also pursues an unjust cause, such as religious domination or whatever. In other words: contrary to conventional belief, a terrorist is not defined only by the immorality of his means, but also by the injustice of his cause.

5) It is never permissible to kill a terrorist (or anyone else) if capture is possible at an acceptable moral cost. Thus, killing an unarmed terrorist who can be captured is murder. In contrast, if the capture of a terrorist would cause the deaths of innocents, killing a terrorist is permissible, provided that the government complies with the conditions already specified.

6) A final point that Andy addresses.  I propose to make targeted killing illegal in principle, given the general objections to the practice, in particular the epistemic objections that burden governments (such as assessing the necessity requirement, mistaking targets, etc.) I accept, however, that in the cases where the killing is justified, the highest authority in the land must explain the justification to the citizenry. Andy says this is unrealistic, and of course he is right, at least as governments continue to be obsessed with secrecy. However, all I can do as an academic is to sketch ideal conditions. A liberal government must defend itself from this scourge, but it must do it as close as possible to the rule of law and the respect of the moral rights of persons.

Targeted Killings Symposium: Andrew Altman Comments on Fernando Tesón’s “Targeted Killing in War and Peace: A Philosophical Analysis”

by Andrew Altman

[Andrew Altman is Professor of Philosophy, and Director of Research for the Jean Beer Blumenfeld Center for Ethics, at George State University.]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

In his contribution to Targeted Killings, Fernando Tesón argues that the threat posed by terrorism is sui generis and cannot be adequately addressed by either a pure law-enforcement or a pure armed-conflict model.  The law-enforcement model is inadequate “[b]ecause the terrorist threat is ubiquitous, the threatened harm is great, and the terrorist is committed as a matter of principle to perpetrating the harm (424).” Yet, Tesón resists the idea that liberal states are in global war with terrorists and rejects the armed-conflict model, because it entails the conclusion that “terrorists are enemy combatants who can be killed on sight regardless of the threat they actually pose” (424).  The conclusion is unacceptable for Tesón, because it fails adequately to reflect the liberal commitment to due process of law.  His solution is an effort to split the difference between the two models.

Terrorists who are to be found in a “wartime setting” (420), such as exists Afghanistan and Somalia, are in a state of war with liberal states, according to Tesón, and are permissibly targeted with lethal force.  But a terrorist in Paris or New York is in a “peacetime setting,” it is morally prohibited to kill him on sight, unless the killing is “necessary to prevent the death of a substantial number of innocents,” the killing is carried out for a “just cause,” the terrorist is culpable, and capture is “impossible or prohibitive” (423).  Tesón acknowledges that the line between a peacetime and wartime setting “is often difficult to draw,” (421) but he argues that the idea of a wartime setting “should be interpreted narrowly” and is even prepared to accept that Osama bin Laden’s killing took place in a peacetime setting (430).  In a wartime setting, “the ordinary tools of crime control cannot operate” (420)  because the condition is essentially a state of nature, in contrast to a peacetime setting in which “there is an actual sovereign … who … can use the standard tools of crime control” (420).  Because states are prone to mistake in determining when a killing is necessary and because, regardless of its possible good consequence, the practice of targeted killing in a peacetime setting amounts to a violation of the liberal rule of law, Tesón argues that there should be a legal ban on such killing, unless the highest executive authority publicly waives the ban and, at least after the killing has been carried out, “fully explain[s] to the citizenry” (433) its reasons for doing so.
Continue Reading…

Weekday News Wrap: Wednesday, June 6, 2012

by Jessica Dorsey

New Book: International Prosecutors

by Kevin Jon Heller

I want to call readers’ attention to a wonderful new Oxford book to which I’ve contributed a chapter: International Prosecutors, edited by Luc Reydams, Jan Wouters, and Cedric Ryngaert.  Here is the publisher’s description:

This volume examines the prosecution as an institution and a function in a dozen international and hybrid criminal tribunals, from Nuremberg to the International Criminal Court. It is the result of a sustained collaborative effort among some twenty scholars and (former) tribunal staffers. The starting point is that the prosecution shapes a tribunal’s practice and legacy more than any other organ and that a systematic examination of international prosecutors is therefore warranted.

The chapters are organized chronologically, according to the successive phases of the life of the institution and the various stages of the trials. The analysis includes each institution’s establishment, mandate and jurisdiction, as well as the prosecutorial framework and strategy, the prosecutor’s external relations and the completion of the institution’s work. The book also considers the prosecutors’ independence and impartiality, and their accountability for their decisions. The volume thus provides a comprehensive picture of the mandate, organization, and operation of the prosecution in international criminal trials.

As the first comprehensive study of an international legal actor whose decisions have widespread political repercussions, this book will be essential reading for all with an interest in international criminal justice.

My chapter is the one mentioned above on completion issues; other contributors include Marieke Werde and Anthony Triolo (Resources); Luc Cote (Independence and Impartiality); Fred Megret (Accountability and Ethics); Kai Ambos and Stefanie Bock (Procedural Regimes); and David Re (Appeal).

Anyone interested in international criminal tribunals should find the book extremely useful.

Targeted Killings Symposium: John C. Dehn on Richard Meyer and Col. Maxwell on Status-Based Targeting

by John C. Dehn

[John C. Dehn is a nonresident senior fellow in West Point’s Center for the Rule of Law. The views presented here are his personal views.]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

Let me first congratulate Claire Finkelstein, Jens Ohlin, and Andy Altman for compiling wonderfully diverse thoughts on an intellectually rich topic.  My only regret is that circumstances prevented me from contributing to it despite an invitation to do so.

Colonel Maxwell’s chapter in Targeted Killings is an excellent contribution to the ongoing debate regarding the targetable status of individuals in non-international armed conflict (NIAC).  In my view, Rich Meyer’s critique identifies an appropriate weakness in it, but addresses it in the wrong way.

Both Maxwell and Meyer fail to address the import of the international legal threshold for NIAC.  Maxwell notes the shift from a law enforcement/human rights to law of war legal framework in the U.S. response to terrorism.  But he does so without addressing the (ambiguous in both substance and application) international law that attempts to delineate the circumstances under which terrorist violence might become “hostilities” in a NIAC.  Meyer senses this problem, classifies it as a “jus ad bellum” issue, but then characterizes it as a “collective political decision” rather than a legal issue (effectively extracting most of the jus from the jus ad bellum).  The decision to attack an extraterritorial non-state organized armed group is probably a political question under the framework of the U.S. Constitution, but is not so from the perspective of international humanitarian and human rights law.

Nevertheless, Meyer’s point regarding Maxwell’s lack of clarity in assigning responsibility to determine the existence of a NIAC is well taken.  However, I read Maxwell to assume the existence of a NIAC so that he may get on with the work of addressing ambiguity in the law regarding individuals with targetable status. Additionally, Meyer’s assertion about the relationship of the jus ad bellum and jus in bello to the individual culpability of soldiers seems to be more argument than law.  It is relatively clear, I think, that not every “collective political decision” to wage war against an identifiable armed group immunizes any military subordinate who attacks the group if it should (objectively) have been considered legally protected from attack.

I think the real problem with Maxwell’s proposal is his “military function” criterion. Maxwell would include those whose activities establish a continuous combat, combat support, or combat service support function for a non-state armed group as targetable member of that group.  That it is probably too broad.  For example, the U.S. employs many Department of Defense civilian employees and civilian contractors to perform various logistics and combat support functions in the theater of operations, from arming and maintaining drones to feeding and housing troops to protecting civilian government officials.  Although it once performed these functions (almost exclusively) with members of the armed forces, to my knowledge it considers most if not all of these individuals to be civilians (some of which may take a direct part in hostilities), not belligerents. Under Colonel Maxwell’s proposal, most if not all could be targeted as belligerents if supporting non-state organized armed group in similar fashion.  Thus, it is not only terrorists who have blurred the distinction between belligerent, protected civilian and targetable civilian (meaning one taking a direct part in hostilities).

Targeted Killings Symposium: Richard Meyer Comments on Col. Maxwell’s “Rebutting the Civilian Presumption: Playing Whack-A-Mole Without a Mallet?”

by Richard Meyer

[Richard Meyer is Director, LLM Program, at the Mississippi College School of Law.]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

In his chapter in Targeted Killings, Col. Mark “Max” Maxwell sets out to solve the gaps left by the ICRC guidance concerning continuous combat function.  His proposal attempts to analogize the terrorist organization to the traditional state and, as a result, find that members of their military arm be treated just like those of the uniformed member of a state’s military.  Maxwell argues that the true message of the ICRC guidance is a return to status based rather than mere conduct based targeting of certain civilians.  Just like the uniformed military, if they are a member of the armed group engaging in hostilities, they can be targeted based on their membership in that group without ever having engaged in hostilities personally.  His three pronged test can be summed up as:  1) determine if a armed group that is engaging in hostilities exists; 2) Using a “totality of the circumstances” analysis, determine if the intended target is a member of this group; 3) Attacks must minimize civilian casualties.  This is certainly a more workable and pragmatic paradigm for the uniformed military than Melzer’s argument that only after an individual has engaged in hostilities (on multiple occasions?) can his continuous targetability be determined.  Further, Maxwell’s chapter serves as an excellent primer on the current confusing paradigm of targeted killing caused by the conflation of human rights law and international humanitarian law.  His desire to evolve IHL is certainly a step in the right direction.  I have one objection to his proposal.

Following the bad example of the AUMF, Maxwell’s proposal conflates the entirely segregable legal realms of jus ad bellum and jus in bello.  During WWII, the US declared war on Germany, Japan & Italy.  Thus the armed forces of those three countries, and only those three countries, were targetable on sight by American military forces.  Hypothetically, even if Spanish uniformed military forces were actively providing combat support services to the German military or were proven to have actually sent planes and participated in the attack on Pearl Harbor, the American Soldier, from Private Smith to General Eisenhower did not have legal authority to engage those forces except in self-defense.  Thus, only after the state’s jus ad bellum decision identifies the macro enemy can the combatant’s jus in bello determination identify the individual target.  This is a corollary to the long held principle of the law of war that the merits of a jus ad bellum decision do not alter the legal culpability of a jus in bello act in compliance with that decision.  Said another way, the otherwise eviscerated “following orders” defense is alive and well as it relates to the decision to go to war.  This is necessary, lest the members of a state’s military individually bear the legal culpability for a collective political decision.

In an effort to facilitate a conflict with a nontraditional opponent, the AUMF did not identify a status based macro enemy, (e.g. the State of Germany) but instead identified a conduct based “…nations, organizations or persons the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11,2001.”  This declaration delegates to the President, in his role as the Commander-in-Chief and (by potential further delegation) the military commander the power and responsibility to make both the jus ad bellum and jus in bello decisions.  Constitutional separation of powers issues aside, if the soldier has any role (other than as a voter or advisor) in the jus ad bellum decision, this severely undercuts the legal and moral justification that soldiers should not be held accountable for collective jus ad bellum decisions.  The soldier is protected from liability because the choice to go to war was not his to make… until now.  Paralleling this error, Maxwell creates a three-pronged analysis that also intermixes jus ad bellum and jus in bello decisions.  The first prong of Maxwell’s analysis requires the finding that there is an organized armed group engaging in combat with the state.  At first blush, it appears that Maxwell presupposes the existence of an armed conflict.  Armed conflicts however, currently require two competing macro entities (be they states or non state groups).  Thus, if the first prong is answered in the negative and there is no such armed and organized group “combating the state,” then there is no armed conflict; IHL does not apply and we are locked into the law enforcement paradigm.  Conversely, if there is such a group, the state might have the option of engaging that group under IHL.  Thus, prong one appears to be within the legal realm of jus ad bellum.  Prongs two and three, however, are both the jus in bello determinations of verification of status (for a status-based attack) and minimizing collateral damage/deaths.  Maxwell could argue that this is parallel to the traditional paradigm.  As noted, in that, the state makes the jus ad bellum decision and individuals make the jus in bello decisions, providing the latter with protection from legal responsibility for the former.  However, Maxwell assigns all three decisions to the collective state and none to the individual combatant.  In theory, this would place the legal culpability for all three decisions on the collective state and none on the individual, which would be a return to a near full-fledged following orders defense.

At first blush, this appears to be semantics… Perhaps Maxwell used the term “state” to refer to both the collective and to the individual determinations of its military.  This does not actually solve the conflation issue however, because the first prong also involves currently simultaneous jus ad bellum and  jus in bello determinations.  To illustrate this point, I will divide his first prong into what I believe are the appropriate four steps contained within it.

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Weekday News Wrap: Tuesday, June 5, 2012

by Jessica Dorsey

Guest Post: Why 50 Years of Imprisonment is an Adequate Sentence for Charles Taylor

by Marina Aksenova

[Marina Aksinova is a Researcher/PhD Candidate in complicity issues in international criminal law at the European University Institute.]

The Special Court for Sierra Leone recently convicted Charles Taylor to 50 years of imprisonment. This pronouncement stirred public debate as to whether this sentence is acceptable. Kevin Jon Heller, for example, expressed his concern about the length of Taylor’s sentence, mainly because it resonates with the Trial Chamber finding that Taylor is a mere accomplice, rather than a primary perpetrator of the crimes committed during the Sierra Leonean civil war. Arguably, 50 years of imprisonment is a disproportionately lengthy sentence for this type of criminal participation. This conclusion, in turn, leads to a more general question as to whether there was sufficient evidence before the court to find Taylor responsible as a perpetrator in the joint criminal enterprise – a mode of liability that usually justifies heavier sentences.

It appears that the judges of the SCSL placed Taylor “in a class of his own” when deciding upon his punishment. His leadership role as the former president of Liberia, and not the particular way in which he got involved in the crimes, appears to have played the central role at sentencing. More detailed analysis will have to wait until the sentencing judgment is released, some initial thoughts could be outlined here.

I would like to defend the length of the sentence imposed on Taylor and the mode of criminal participation under which he stands convicted. I am not trying to assess the evidence presented in the proceedings and the appropriateness of Chamber’s findings on the merits. Rather, my goal is to support the hypothesis that complicity, as a mode of liability, is compatible with a relatively heavy punishment given to Taylor…

Targeted Killings Symposium: Jens David Ohlin Responds to Craig Martin

by Jens David Ohlin

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

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

In his comments to my chapter “Targeting Co-Belligerents,” Craig Martin asks a very pertinent question: Is the US really in an armed conflict with al-Qaeda?  Or, more abstractly, can a state ever be in an armed conflict with a non-state terrorist organization?  Martin is correct to assume that an affirmative answer to this question is necessary before any of the in bello linking principles are used in my analysis.

Although this is an issue that I largely cabined from my argument in the chapter, it is now a question that very much animates my current research.  Here is my thinking:  At least part of the skepticism regarding the existence of an armed conflict with AQ or other NSAs, stems from an uncertainty regarding classification.  The armed conflict allegedly cannot be a non-international armed conflict (NIAC) because it crosses international boundaries.  On the other hand, though, it cannot be an international armed conflict (IAC) because one of its parties is not a traditional state actor – presumably a condition-precedent for any IAC.  It not falling into either sub-category, it cannot be an armed conflict at all.

I find this argument suspicious, though my thinking on the issue is still evolving.  I am not quite clear on the supposed legal evidence for the proposition that IAC and NIAC occupy the entire field of the concept of armed conflict.  That’s only true when the concepts are defined in opposition to each other (where NIAC would simply refer to anything that is not a traditional IAC).  That was the style of analysis that the Supreme Court used in Hamdan, and that led them to conclude that the armed conflict against AQ was indeed a NIAC.  I found this argument persuasive.

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Targeted Killings Symposium: Craig Martin Comments on “Targeting Co-Belligerents” by Jens David Ohlin

by Craig Martin

[Craig Martin is Associate Professor of Law at Washburn University School of Law, and author of another of the chapters in Targeted Killings]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

Jens Ohlin’s chapter in Targeted Killings, Targeting Co-Belligerents,” provides an important analysis of one of the key questions in the targeted killing debate, and makes a persuasive argument in favor of one possible response to it. In doing so, however, I wonder if it leaves another fundamental question hanging, which I lay out below for him to address. First, however, let me provide a sketch of his argument.

Jens begins by noting how the US targeted killing policy, and the transnational terrorism against which it is directed, raises difficult questions regarding which legal regime should be controlling. Not only is there an ongoing debate as to whether responses to terrorism should be governed by domestic criminal law within a law enforcement paradigm, or public international law in the context of armed conflict, but even for those who accept the armed conflict paradigm there are debates over whether the principles of jus ad bellum or jus in bello are best suited to justify the targeted killing.

Against that backdrop, and assuming for the sake of his analysis that some targeted killing will be permissible in some circumstances, Jens addresses the question: “who can be targeted and why?” His stated objective is to investigate “the tension between national security and civil liberties through a distinctive framework: what linking principle can be used to connect the targeted individual with the collective group that represents the security threat?” As he explains, regardless of whether one approaches the problem from a jus in bello or a jus ad bellum perspective, the problem of linking the individual targeted to some collective is an essential step in the justification process.
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Targeted Killings Symposium: Introduction

by Jens David Ohlin

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

In April 2011, a group of legal scholars gathered at the University of Pennsylvania Law School for a conference on targeted killings.  The idea was to bring together experts in diverse fields – international law, legal and moral philosophy, military law, and criminal law – into a single (or perhaps overlapping) conversation about the legality and morality of targeted killings.

The outgrowth of that conference, Targeted Killings: Law and Morality in an Asymmetrical World (edited by Claire Finkelstein, myself and Andrew Altman), has just been published by Oxford University Press.

This Opinio Juris symposium is designed to continue the conversation first raised by the volume, but with Opinio Juris’ wider audience.

First, Craig Martin comments on my chapter, “Targeting Co-Belligerents,” followed by my response.  Our exchange concentrates on whether an armed conflict exists with al-Qaeda.

Next comes a comment by Richard Meyer on Col. Mark Maxwell’s chapter, “Rebutting the Civilian Presumption: Playing Whack-A-Mole Without a Mallet?”  In lieu of a response from Maxwell, who is currently unavailable, John Dehn provides a response to some of the issues raised by Meyer.

Finally, the symposium ends with a comment by Andrew Altman on Fernando Tesón’s chapter, “Targeted Killing in War and Peace: A Philosophical Analysis,” followed by a response from Tesón.

Thank you to the editors at Opinio Juris for this opportunity.  All Opinio Juris readers are welcome to use the comment section to respond to any of the arguments raised in the symposium.

Weekday News Wrap: Monday, June 4, 2012

by Jessica Dorsey

Andrew Cayley Takes Silk

by Kevin Jon Heller

I want to congratulate my friend Andrew Cayley, the Chief International Co-Prosecutor of the ECCC and a barrister at London’s Doughty Street Chambers, on being named QC in England.  Given the constant turmoil that has roiled the ECCC over the past year, the news is a welcome (re-)affirmation of Andrew’s legal ability.  The ECCC is lucky to have him.

Upcoming Events: June 2, 2012

by An Hertogen

Calls for Papers

Upcoming Events

  • The Hague Institute for the Internationalisation of Law (HiiL) and the Netherlands Institute for Advanced Study in the Humanities and Social Sciences (NIAS) are organizing a seminar on June 20-22, 2012 in Wassenaar, The Netherlands on Collective Redress in the Cross-Border Context: Arbitration, Litigation, Settlement and Beyond.
  • The Center for Law and Religion at St. John’s School of Law and the Department of Law at the Libera Università Maria SS. Assunta (LUMSA) are pleased to present an academic conference on State-Sponsored Religious Displays in the U.S. and Europe. Taking place on Friday, June 22, 2012, the conference will bring together American and European law and religion scholars to discuss state-sponsored religious displays from a variety of perspectives. The conference proceedings will be in English and Italian with simultaneous translation. Selected papers will appear in a forthcoming issue of the Journal of Catholic Legal Studies.
  • Early-bird registration for the 20th Annual Conference of the Australian and New Zealand Society of International law, from July 5-7, 2012 in Wellington, New Zealand closes on June 7. More information is here.
  • From January 13-19, 2013, The Hague Academy of International Law is organizing an Seminar for Advanced Studies in Private and Public international Law for Professionals on Les immunités en droit international public et privé. All lectures are in French and take place in The Hague. Applications close on 31 August 2012.

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.

The Pre-Trial Chamber Agrees with Dapo and Jens Regarding Surrender

by Kevin Jon Heller

The Pre-Trial Chamber has held that Article 95 of the Rome Statute applies to requests for surrender, thereby agreeing with Dapo and Jens and disagreeing with me. It’s a poorly reasoned decision, giving a completely counterintuitive reading to the “such evidence” language in the article (pretending that the clause in question doesn’t actually contain the word “such”) and ignoring all of the difficult issues, such as the fact that its interpretation of Article 95 renders Article 89(2) a nullity. Instead, we get statements like this one:

In addition, the Chamber is not persuaded by the argument that interpreting article 95 of the Statute in this manner would be inconsistent with the object and purpose of the Statute as it would, inter alia, contravene the Court’s duty to convene expeditious confirmation proceedings, ensure the suspect’s right to participate in such proceedings, and thereby eliminate impunity.

Why is the Pre-Trial Chamber not persuaded? Your guess is as good as mine. The PTC doesn’t share its reasoning with us.

The decision is here.  Frankly, the PTC would have been much better off simply cutting-and-pasting Dapo and Jens’s work.  I hope the Appeals Chamber will take the issue more seriously.

PS. The Pre-Trial Chamber insists that “Libya must ensure that all necessary measures are taken during the postponement in order to ensure the possibility of an immediate execution of the Surrender Request should the case be found admissible.” Libya has already made clear that it has no intention of complying with an adverse decision, so the PTC’s admissibility analysis is a waste of time and resources. That is, of course, an additional reason why its Article 95 decision is so regrettable — it simply provides the Court with yet another opportunity to look completely ineffectual.

Weekend Roundup: May 26 – June 1, 2012

by An Hertogen

This week on Opinio Juris, Roger Alford marked Memorial Day with the Battle of Blenheim poem, and Deborah Pearlstein weighed in on the discussion about Chris Hayes’ controversial suggestion that the label of “hero” is too often used to refer to US service personnel.

Deborah also posted a snippet from the NY Times report on Obama’s “Kill List” in the conflict with al-Qaeda. A few days after the report was published, Julian Ku asked whether the mild fallout can be seen as a solidifying of the legal framework for the US War on Terrorism. Prompted by a second NY Times report, this one on Obama’s authorization of cyberattacks against Iranian nuclear facilities, Julian questioned whether the President has the constitutional authority to do so.

Julian also looked forward to the hearings on the US ratification of the UN Convention on the Law of the Sea and posted a list of questions by Professor Craig Allen.

Kevin Jon Heller discussed the conviction in Pakistan of Dr. Afridi who ran a fake vaccination program to collect DNA evidence to assist the CIA in its search for the bin Laden family. Kevin suppressed snarky comments about Moreno-Ocampo’s new appointment as FIFA’s chief investigator into allegations of match-fixing and corruption. He was shocked to read that Yale University offered a course by Gen. Stanley McChrystal in which students could only take notes on a non-attribution basis, which led to a discussion whether the Chatham House Rule belongs in the classroom. Kevin also argued that the Special Court for Sierra Leone’s decision to sentence Charles Taylor to 50 years’ imprisonment is disproportionate, given that Taylor was not found guilty on the basis of ordering the crimes or of joint criminal enterprise.

Roger Alford updated us on the steps taken by the plaintiffs to enforce the Ecuadorian judgment against Chevron through the Ontario Superior Court in Canada. A guest post by Stephen A. Pitel discussed the relevant precedents in Ontario law.

This week we hosted a symposium on three articles from the latest issue of the Virginia Journal of International Law, introduced here. The first article was Andrew Woods’ Moral Judgments & International Crimes: The Disutility of Desert. Jonathan Barron commented how international criminal law is in transition from second-party to third-party punishment and Adil Haque questioned whether Andrew’s suggestions would make the international criminal law regime no longer a criminal regime or no longer a legal regime. Jens Ohlin debated Andrew’s assumption that international criminal law is fundamentally retributive and his application of social science insights about the power of moral sentiments to crowd out consequentialist calculations. Andrew’s response can be found here.

The second article, by Alvaro Santos, discussed how developing countries can carve out regulatory space in the WTO. Robert Howse’s comments described how NGOs are increasingly challenging the conventional wisdom on the limits on regulatory autonomy that is perpetuated by the lack of independent expertise and by uncritical journalists. Andrew Lang emphasized the need to make the WTO dispute settlement bodies more receptive to developing countries’ arguments. Alvaro’s response can be found here.

Jason Webb Yackee’s article on Investment Treaties and Investor Corruption: An Emerging Defense for Host States? was third in the symposium’s line-up. Andrea Bjorklund’s and Daniel Litwin’s criticized the article’s focus on the “supply side” of corruption and its disregard of the demand side of corruption within the state and his preference to deal with corruption as a jurisdictional issue. Jarrod Wong raised similar issues in his comments and questioned whether a defense had already crystallized in international law. Jason’s response is here.

Roger’s post on the three international law scholars in the list of “most-cited law reviews of all time” may inspire you in your own scholarship, in which case you may want to have a look at our listing of upcoming events.

Finally, if you want to catch up with this week’s news, our Weekday News Wraps can help you with that.

Thank you very much to our guest contributors and have a nice weekend!

The Citation Superstars of International Law: Bradley, Goldsmith, and Koh

by Roger Alford

Fred Shapiro and Michelle Pearse have just published in the Michigan Law Review “The Most-Cited Law Review Articles of All Time.” It is a fascinating read, and includes some choice nuggets about international law scholarship.

Among the more interesting findings is that of the recent era (1990-2009) only three international law scholars were among the most-cited: Curtis Bradley, Jack Goldsmith, and Harold Koh. In the recent era only six law professors (Mark Lemley, Cass Sunstein, Akhil Reed Amar, William Eskridge, Robert Post, and Reva Siegel) have had more citations and only seven other law professors (Stephen Bainbridge, Lucian Arye Bebchuk, Yochai Benkler, John Coffee, Dan Kahan, Lawrence Lessig, and Benjamin Spencer) have had as many top citations as the three IL citation superstars. See p. 1506. (I’m happy to say that one of Koh’s two-most cited articles was in an AJIL Agora debate in which I participated, albeit on the opposite side of the question).

Of the most cited law review articles of all time, no international law article makes the list. (An article by Abram Chayes is at number eleven, but it is not an international law piece.)

The other interesting nugget from the Shapiro and Pearse article is the list of the most-cited international law articles of all time, which I reproduce below.

Kudos to Bradley, Cole, Goldsmith, Helfer, Koh, Lans, Lowenfeld, McDougal, Mendelsohn, Orentlicher, Schachter, Slaughter, Sohn, and Weiler for making the list!

Will the World’s Greatest Deliberative Body Actually Deliberate About UNCLOS

by Julian Ku

Rather than deride opponents as the “black helicopter” crowd, the proponents of US ratification of UNCLOS should take seriously the upcoming hearings as a chance to weigh the complex policy choices presented by UNCLOS.  Prof. Craig Allen of the University of Washington offers this very sensible and persuasive take at (of all places) Fox News:

The decision to ratify a treaty presents a policy choice. Few choices in life, public policy or foreign relations are wholly favorable or unfavorable. As former Secretary Condoleezza Rice reminded us, we must not let our desire for the perfect blind us to the good.

The question the Senate must answer is whether, on balance, it is in the US interest to ratify the Law of the Sea Convention. Respect for our Constitutional treaty process—to say nothing of our civic responsibility—cautions that we should reserve judgment until the Convention has been given a full and fair hearing on the merits.

To properly assess the Convention’s merits, we have a right to expect that the Senate and the experts it calls to testify in this latest round of hearings will examine and debate some of the following issues:

• What role, if any, should intervening changes in the geostrategic environment (including changed national security, energy, economic and environmental factors) play in deciding whether ratification of this 1982 convention will serve the national interest?

• What changes can we expect in the geostrategic environment in the next 5-10 years and even beyond, and how should that affect today’s decision?

• What role, if any, should the president’s National Ocean Policy, with its ecosystem-based management and “bottom-up” approach to coastal and marine spatial planning, play in our decision regarding the LOS Convention?

Enforcement of the Ecuadorian Judgment against Chevron in Ontario: The Ontario Law

by Stephen G.A. Pitel

[Stephen G.A. Pitel is Associate Professor at Western University, Faculty of Law]

On May 30, 2012, residents of Ecuador started an action in the Ontario Superior Court of Justice seeking to enforce a judgment in their favour of an Ecuadorian court against Chevron.  The amount of the judgment is a staggering $18 billion.  Chevron has announced that it will resist the enforcement litigation in Ontario.

Under Ontario’s common law, confirmed relatively recently by the Supreme Court of Canada in Beals v Saldanha, the test for whether a court will enforce a foreign judgment ordering the payment of money has three requirements.  First, the judgment must be final.  Second, the court granting the judgment must have had jurisdiction on a particular basis.  This is sometimes called jurisdiction in the international sense or jurisdictional competence.  Third, the judgment must be for a fixed sum of money and not a tax or penalty.  In general see Stephen G.A. Pitel & Nicholas S. Rafferty, Conflict of Laws at 159-73.

On the first requirement, a judgment is considered to be final even though there is time remaining within which to launch an appeal or an appeal has in fact been launched (as is the case here): Nouvion v Freeman (1889), 15 App Cas 1 (HL) at 10-11 and 13.  However, in such a situation it is relatively straightforward for the defendant in the enforcement proceedings to obtain a stay of the action on the basis that the court should await the results of the appeal.  It would seem likely that Chevron could have the Ontario proceedings stayed pending the results of the appeal in Ecuador.  Even if the enforcement proceedings are stayed, starting them can still have advantages to the plaintiff.  The stay does not stop the plaintiff attempting to obtain a Mareva injunction to freeze assets or other forms of interlocutory relief.
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President Obama: The (Unilateral) Cyber Warrior

by Julian Ku

The NYT has another big expose today on one of the Obama Administration’s secret war, this time detailing the President’s authorization of cyberattacks on Iran’s nuclear facilities.

 From his first months in office, President Obama secretly ordered increasingly sophisticated attacks on the computer systems that run Iran’s main nuclear enrichment facilities, significantly expanding America’s first sustained use of cyberweapons, according to participants in the program.

Mr. Obama decided to accelerate the attacks — begun in the Bush administration and code-named Olympic Games — even after an element of the program accidentally became public in the summer of 2010 because of a programming error that allowed it to escape Iran’s Natanz plant and sent it around the world on the Internet. Computer security experts who began studying the worm, which had been developed by the United States and Israel, gave it a name: Stuxnet.

According to the article, the President was aware that he was breaking new ground in expanding and defining the rules (and perhaps the laws) of cyber warfare.

Mr. Obama, according to participants in the many Situation Room meetings on Olympic Games, was acutely aware that with every attack he was pushing the United States into new territory, much as his predecessors had with the first use of atomic weapons in the 1940s, of intercontinental missiles in the 1950s and of drones in the past decade. He repeatedly expressed concerns that any American acknowledgment that it was using cyberweapons — even under the most careful and limited circumstances — could enable other countries, terrorists or hackers to justify their own attacks.

One interesting sidenote not discussed in the article: No one quoted in the article (which is based it seems on self-serving leaks by top Obama aides) seems to have wondered as to whether the President has the constitutional authority to launch cyberattacks on Iran. Congress hasn’t authorized any such attacks (whereas it arguably has done so for the drone program).

Like the drone program, President Bush laid the legal precedents by authorizing cyberattacks on Iran during his term.  But Obama, who used to criticize Bush’s expansive notions of executive powers, does not seem to have been troubled by using that authority here. And I am guessing that the emerging bipartisan consensus in the U.S. will be that such attacks fall well within the President’s inherent powers as commander in chief.

Weekday News Wrap: Friday, June 1, 2012

by Jessica Dorsey