Archive for
October, 2012

Global FEMA?

by Peter Spiro

As a thought experiment, prompted by this week’s experience with Hurricane Sandy: should management of disaster relief migrate to the supranational level?

There seem to be two major justifications for a national disaster relief apparatus (a surprisingly recent innovation — think Carter era, not New Deal). First are the economies of scale: money and expertise. A small state may not have enough to cover a major disaster. Nor does it make sense for each state to have the equivalent of the Army Corps of Engineers.

Second are what might be grouped as interdependencies. When bad stuff happens in New York and New Jersey, it’s going to have serious material spillover effects in Utah and California. Setting disaster relief at the national level facilitates optimal prioritization. But there is also social interdependency. When bad stuff happens to people in other states, we all feel it in such a way that makes us accept burden sharing.

Most of these justifications now map out globally. Economies of scale are no longer defeated by the friction of spatial distance. Economic interdependency is clear. But even social interdependence plays out transnationally. Natural disasters everywhere are absorbed and responded to by everyone elsewhere.

Long term (and I mean very long term), that should point to a global disaster apparatus. The emergence of some global norms relating to disasters (noted by Kristen below) is a starting point. The increase in private transnational disaster relief (which I suspect has been dramatic) is another. Transborder disasters (most are) are increasingly seen in global perspective. Some are noting that Sandy’s impact in Haiti has been much more grave than suspended subway service in Manhattan.

Of course, there’s a downside to scaling disaster up. There are greater possibilities for fraud (see today’s NY Times on endemic problems at FEMA on that score). There are also externalities in shifting costs away from those who cause them. Compensate folks for building houses on floodplains or sand dunes and they’ll just build them again. These problems would presumably be compounded at the international level.

So maybe the endpoint is more in the way of today’s state-federal partnerships than in the way of world-government FEMA. FEMA itself is starting to do some thinking vaguely along these lines; here is a news item from earlier this week about an EU-IOM-Namibia agreement that institutionalizes disaster relief in advance. Other such arrangements will surely follow.

Weekday News Wrap: Wednesday, October 31, 2012

by Jessica Dorsey

New Article on the Legality of Signature Strikes

by Kevin Jon Heller

The article, which is available in draft form on SSRN, is entitled “‘One Hell of a Killing Machine’: Signature Strikes and International Law.”  It is forthcoming in the Journal of International Criminal Justice as part of a mini-symposium on targeted killing edited by Cornell’s Jens Ohlin.  Here is the abstract:

The vast majority of drone attacks conducted by the U.S. have been signature strikes – those that target “groups of men who bear certain signatures, or defining characteristics associated with terrorist activity, but whose identities aren’t known.” In 2010, for example, Reuters reported that of the 500 “militants” killed by drones between 2008 and 2010, only 8% were the kind “top-tier militant targets” or “mid-to-high-level organizers” whose identities could have been known prior to being killed. Similarly, in 2011, a U.S. official revealed that the U.S. had killed “twice as many ‘wanted terrorists’ in signature strikes than in personality strikes.”

Despite the U.S.’s intense reliance on signature strikes, scholars have paid almost no attention to their legality under international law. This article attempts to fill that lacuna. Section I explains why a signature strike must be justified under either international humanitarian law (IHL) or international human rights law (IHRL) even if the strike was a legitimate act of self-defence under Article 51 of the UN Charter. Section II explores the legality of signature strikes under IHL. It concludes that although some signature strikes clearly comply with the principle of distinction, others either violate that principle as a matter of law or require evidence concerning the target that the U.S. is unlikely to have prior to the attack. Section III then provides a similar analysis for IHRL, concluding that most of the signature strikes permitted by IHL – though certainly not all – would violate IHRL’s insistence that individuals cannot be arbitrarily deprived of their right to life.

I thoroughly enjoyed writing the article, which allowed me to put into academic form a number of ideas I’ve blogged about over the years — the relationship between the jus ad bellum and IHL/IHRL; the definition of armed conflict; what it means to be a member of an organized armed group; the scope of direct participation in hostilities; whether targeting in non-international armed conflict is geographically limited; and the best understanding of imminence under IHRL.  My guess is that both progressives and conservatives will find much to dislike.  Progressive won’t like my conclusion that a number of signature strikes are legal under either IHL or IHLR.  And conservatives won’t like my conclusion that many signature strikes violate both IHL and IHRL, with strikes in the latter category possibly amounting to crimes against humanity.

The deadline to go to press is quite soon, so I’m not sure if I can incorporate reader comments.  But, as always, I would deeply appreciate them.

Weekday News Wrap: Tuesday, October 30, 2012

by Jessica Dorsey

In the Eye of the Storm: Developments in International Disaster Law

by Kristen Boon

For those of us in the direct line of Hurricane Sandy, it seems appropriate to highlight recent developments in international disaster law.

Many of the legal challenges arising from natural disasters involve practical issues such as obtaining visas, removing bureaucratic barriers to financial aid and ensuring that foreign actors offering assistance comply with local laws.

However, natural disasters also raise a number of bigger questions:

  • Should the responsibility to protect apply to natural disasters?
  • Do states have a duty to accept help following natural disasters?
  • How will the obligations to protect citizens affect our understanding of sovereignty?

The International Law Commission (ILC) has been studying the Protection of Persons in Natural Disasters since the 2004 Indian Ocean Tsunami and Hurricane Katrina.   Next week, the Sixth Committee of the UN will consider the ILC’s Fifth Report, which now includes 11 provisionally adopted articles.  The duty of cooperation, in particular, triggers sovereignty concerns, as described by the Special Rapporteur:

Seen from the larger perspective of public international law, to be legally and practically effective the duty to cooperate in the provision of disaster relief had to strike a balance between three important aspects. First, such a duty could not intrude into the sovereignty of the affected State. Second, the duty had to be imposed on assisting States as a legal obligation of conduct. Third, the duty had to be relevant and limited to disaster relief assistance, by encompassing the various specific elements that normally make up cooperation on the matter.

The International Federation of the Red Cross and Red Crescent Societies is a first mover in the field of disaster relief, focusing on state preparedness and technical assistance.  It has created comprehensive and insightful guidelines that are worth a read.

The Hague Academy of International Law has also been considering the issue of state responses to natural disasters, including the possibility of a new Hague Convention on environmental damages, which would address the private international law issues raised by post industrial disaster liability claims.

Professor Samantha Besson, Professor of Public International Law at the University of Fribourg, Switzerland, predicts the following two issues will require most attention going forward:

From the perspective of international law-making, first of all, the main issue is the fragmentation of public international law regimes depending on the kind of disasters and the agents at stake, on the one hand, and whether the concern lies in pre-, during or post-disaster measures, on the other. Currently, the focus of international law has been much more on industrial disasters and on individual damages, on the one hand, and on post-disaster liability issues, on the other. It is time to work more on natural disasters, on their collective dimension and on pre-disaster measures.

The second important issue relates to international institutions. Almost all difficulties currently confronting international law pertaining to disaster have an institutional component. It is important to face it openly as a result, as institutions allow the identification and allocation of duties and responsibilities among states and other international agents.

This is clearly a timely issue.  With climate change, some expect that significant natural disasters are likely to occur more frequently.  Although a consensus has yet to emerge as to how best to address this internationally, policy makers can draw on a lot of “lessons learned” from tragedies including the earthquake in Haiti, the countries affected by the Indian Ocean Tsunami, and Hurricane Katrina.

Do readers think this is an area that is calling out for more international attention?


Bayonets and the Law of Edged Weapons

by Kenneth Anderson

With zero desire to enter into debates about bayonets and all that politically, purely as an aside I thought OJ readers would be the sorts of people who would take an interest in … the law of edged weapons.  There is law on the subject; I used to run across it particularly in older operational law military manuals (as I recall it is mentioned (somewhere) in the ancient US military manual, FM 27-10, which I don’t have to hand).  For that matter, were the US to decide to introduce a new bayonet or other edged weapon, US regulations would require that it go through a formal weapons review for compliance with the law of armed conflict. Rooting through my home bookshelf (sitting out Hurricane Sandy), I find a paragraph devoted to the law of edged weapons in the excellent new textbook by Corn, Hansen, Jackson, Jenks, Jensen, and Schoettler, The Law of Armed Conflict: An Operational Approach.  Here’s a quick excerpt:

Military bayonets and knives have often been forged with a serrated edge, to assist the soldier in cutting barbed wire or small trees.  As long as the serrated edge is not designed to aggravate a wound, like the “barbed lance” prohibited by U.S. Army doctrine, the creation of a tool that is also used as a weapon is not a per se LOAC violation.  Bayonets designed for the purpose of creating a vacuum wound … are probably unlawful because they make treating the wounded combatant more difficult.

Weekday News Wrap: Monday, October 29, 2012

by Jessica Dorsey

Upcoming Events: October 28, 2012

by Jessica Dorsey

Upcoming Events

Calls for Papers

  • The Faculty of Law, University of Ljubljana, presents an international conference, Responsibility to Protect in Theory and Practice, April 11-12, 2013. The call for papers is here. Abstracts for papers or poster presentations are due Oct. 31, 2012.
  • On June 6-7, 2013, the Department of Culture Studies at Tilburg University will convene a two-day international conference on research and teaching in the field of law and popular culture. The call for papers can be found here. Papers on any aspect of the relationship between law and popular culture are welcome. Abstracts are due by December 1, 2012.
  • Merkourious, the Utrecht Journal of International and European Law, has issued a call for papers on Gender in International and European Law. Topics may include, but are not limited to international and/or European human rights law issues such as non-discrimination, employment, corporate social responsibility, health, family life, children’s right, hate speech, terrorism and the process to strengthen the treaty body system, as well as other areas of international law such as peacekeeping, international humanitarian law, environmental law, women and development, indigenous law, refugee and migration law, legal ethics, and international customary law. Abstracts should be submitted by February 13, 2013 and submissions by March 13, 2013.
  • Trade, Law and Development has issued a call for submissions for its next special issue, India and the World Economic Order. Submissions can be written as ‘Articles’, ‘Notes’, ‘Comments’ and/or ‘Book Reviews’. Submissions can deal with any aspect of India’s role or policies in the world economic system. Manuscripts may be submitted via email, ExpressO, or the TL&D website. The last date for submissions is February 15, 2013.
  • The Journal of Philosophy of International Law has issued a call for papers. The Journal welcomes submissions of articles and reviews for consideration with a view to publication. The normal word length for article contributions is between 4000-8000 words. The normal word length for reviews/commentaries should be 1000 to 1500 words. Submissions (except reviews/commentaries) should include a short abstract of not more than 60 words.

Last week’s announcements can be found here. If you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Juris, please contact us.

The Washington Post’s Three Article Series on “The Permanent War”

by Kenneth Anderson

The Washington Post has featured three major front-page stories on what they call “The Permanent War” – meaning the war on terror or however one might like to label it, as the US moves from Obama 1 to either an Obama 2 or a Romney administration – and administrations after that.  The first, by reporter Greg Miller, is headlined “U.S. Set to Keep Kill Lists for Years: ‘Disposition Matrix’ Secretly Crafted: Blueprint Would Guide Hunt for Terrorists” (October 23, 2012); Robert Chesney comments on it over at Lawfare.  The second article is a feature profile by Karen de Young of White House counterterrorism advisor John Brennan, “A CIA Veteran Transforms US Counterterrorism Policy” (October 24); Bobby and Jack Goldsmith each comment on it at Lawfare. The last in the series appeared on October 25, by Craig Whitlock, “Secret Ops Grow at U.S. Base: At Forefront of Drone Wars: $1.4 billion upgrade at Djibouti post planned.” These are excellent, well-reported stories, and well worth reading to get a sense of the longer run trajectory of what might be called US “counterterrorism-on-offense.”

The larger issue raised by these three stories taken together is “institutional settlement” in counterterrorism policy.  The stories together are titled “The Permanent War,” and they address war-making aspects of counterterrorism – the drone wars and targeted killing, forward bases for drones in increasingly far-flung places, and, though with much less discussion, military and intelligence advisors to local governments dealing with various non-state actor groups that have both domestic and transnational aspects.  (The three WaPo stories mostly don’t deal with other large aspects of counterterrorism, such as domestic counterterrorism issues, or with detention or trial.) Continue Reading…

Weekend Roundup: October 20-26, 2012

by An Hertogen

This week on Opinio Juris, we welcomed Kristen Boon as our newest permanent blogger. In her opening post, she examined why the Security Council’s work on Children and Armed Conflict has turned out to be controversial. She also asked readers’ opinion on a recent report by the UN Special Rapporteur on Torture claiming that there is an emerging customary norm that the death penalty is a form of torture or cruel and degrading treatment. Finally, she discussed a trail blazing class action against the UN over a cholera outbreak in Haiti. The claim was filed by the Institute for Justice and Democracy in Haiti, but the UN has yet to respond. Kristen discussed possible reasons for the delay in the response and also analysed whether the Draft Articles on the Responsibility of International Organizations could provide a basis for liability.

The foreign policy debate in the US Presidential election provided inspiration for our bloggers. Peter Spiro noted how international law was generally ignored during the debate, but at least it wasn’t reviled as during the time of George W. Bush. Julian Ku and Kevin Jon Heller both discussed Gov. Romney’s claim that Iranian President Ahmadinejad should be indicted under the Genocide Convention for incitement to genocide. Julian argued that the ICJ would be the most likely forum or otherwise the ICC if a Security Council referral could be obtained. Kevin disagreed with Julian’s assessment that the US courts would not have jurisdiction. Further on the upcoming US elections, Julian called the threats by Texas officials to arrest OSCE election officials a kerfuffle about nothing.

Julian followed up on earlier posts, arguing that the US could legally engage in military action against the attackers of its embassy in Benghazi, even if the attackers are not linked to al Qaeda.

We also drew your attention to some new and old scholarship. Kevin plugged a new article by James Stewart on “Overdetermined Atrocities” and the release of a paperback edition of his book on the Nuremberg Military Tribunals. At the occasion of the 50th anniversary of the Cuban Missile Crisis, Peter Spiro revisited Abram Chayes’ book on the legal aspects of the crisis. Finally, Duncan Hollis posted about the ALI’s announcement to start work on a 4th Restatement on the Foreign Relations Law of the United States, to be co-ordinated by Sarah Cleveland and Paul Stephan.

As always, we listed upcoming events and provided you with our weekday news wraps.

Have a nice weekend!

Weekday News Wrap: Friday, October 26, 2012

by Jessica Dorsey

“No UN monitors/inspectors will be part of any TX election process; I commend @TXsecofstate for swift action to clarify issue.”

The Haiti Cholera Case against the UN

by Kristen Boon

Two years ago this month, an unprecedented cholera outbreak in Haiti left more than 7,500 Haitians dead.   As the New York Times reported in a front page article in May 2012, “Lightning fast and virulent, it spread from here through every Haitian state, erupting into the world’s largest cholera epidemic despite a huge international mobilization still dealing with the effects of the Jan. 12, 2010, earthquake….  Epidemiologic and microbiologic evidence strongly suggests that United Nations peacekeeping troops from Nepal imported cholera to Haiti, contaminated the river tributary next to their base through a faulty sanitation system and caused a second disaster.”  A BBC report from earlier this week indicates that the cholera epidemic continues.

A year ago, a Boston based group called the  Institute for Justice and Democracy in Haiti (IJDH) filed a trail blazing class action against the UN on behalf of over 5,000 plaintiffs.  The petition asks for compensation for the victims ($50,000 for injured and $100,000 for deceased), better water sanitation, and a public acknowledgement of responsibility.  IJDH alleges that the cholera outbreak is a violation of Haitian law and certain international obligations, such as the right to life.

IJDH filed the complaint under a standard clause in the Status of Forces Agreement (SOFA), signed by the UN and Haiti, that provides for a third party claims procedure before a standing claims commission for disputes of a private-law character.  No such commission has been established in Haiti, nor, it appears, anywhere despite a 1996 decision by the Secretary General that the standard provision should be retained so that the UN does not act as its own judge.  To date, according to the lawyers, the UN acknowledged receipt of the claim, but it has not responded on the substance.   Moreover, there is very little information available on the procedure through which the UN considers such claims internally.  The IJDH lawyers, understandably, have expressed dismay by the lack of transparency with which the case is being assessed.  Indeed, the UN’s handling of this high profile claim stands in stark contrast to its stated position on the rule of law and procedural regularly in other contexts.

The UN’s delay may be attributable to a few factors…

Texas v. the OSCE Election Observers: The Kerfuffle About Nothing

by Julian Ku

The agonizing close presidential race in the U.S. has made everyone on edge about election day problems at the polls.  This may explain why the State of Texas has decided to pick a fight with the election observers from the Organization for Security and Cooperation in Europe (OSCE), threatening to arrest election observers who interfere with the upcoming November 6 elections.

Texas authorities have threatened to arrest international election observers, prompting a furious response from the Organization for Security and Co-operation in Europe (OSCE).

“The threat of criminal sanctions against [international] observers is unacceptable,” Janez Lenarčič, the Director of the OSCE Office for Democratic Institutions and Human Rights (ODIHR), said in a statement. “The United States, like all countries in the OSCE, has an obligation to invite ODIHR observers to observe its elections.”

Lawmakers from the group of 56 European and Central Asian nations have been observing U.S. elections since 2002, without incident. Their presence has become a flashpoint this year, however, as Republicans accuse Democrats of voter fraud while Democrats counter that GOP-inspired voter ID laws aim to disenfranchise minority voters.

Texas Attorney General Greg Abbott further fueled the controversy on Tuesday when he sent a letter to the OSCE warning the organization that its representatives “are not authorized by Texas law to enter a polling place” and that it “may be a criminal offense for OSCE’s representatives to maintain a presence within 100 feet of a polling place’s entrance.”

As the blog post at the Hill goes on to note, this is a big kerfuffle about nothing. The OSCE observers do not have any special legal status and they have already agreed to follow Texas election law (or any other state’s election law). I should note that Texas is free to do whatever they want with the OSCE monitors, and there is no federal authority that can push them to do anything in particular about the OSCE.   I am not sure why Texas has gotten all hot and bothered by this.

To be sure, Texas authorities might be confused by reports like this one from ABC, which calls the OSCE a “UN affiliate” and links their mission to calls by the NAACP on the U.N. to block voter ID rules (uh, that’s totally wrong).  But while the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE/ODIHR) [gotta love that acronym] is here to “assess these elections for compliance with international obligations and standards for democratic elections…” This sounds ominous, until you realize that U.S. commitments to OSCE self-consciously political, and not legal.  That is part of the point of the OSCE. It is a political forum, not a formal legal one.

It is true that the OSCE (which includes very undemocratic states like Kazakstan as members) is hardly in a position to complain too aggressively about U.S. election standards. I suppose it could get ugly in a close election if the OSCE tries to influence the political fight over a recount.  But there are so many existing domestic laws that regulate elections in the U.S. (and forums for litigation) that I am doubtful that the OSCE could add much to what is already going to be a crazy election season here in the U.S.

Weekday News Wrap: Thursday, October 25, 2012

by Jessica Dorsey

The Death Penalty and Evolving Norms of Customary International Law

by Kristen Boon

In his August 9, 2012 report, the Special Rapporteur on Torture, Juan Mendez, makes the claim that there is an emerging norm that the death penalty constitutes cruel and unusual punishment.  Mendez acknowledges that international law does not prohibit the death penalty, but notes it does encourage its elimination.  Specifically, his report states:  “there is an evolving standard whereby states and judiciaries consider the death penalty to be a violation per se of the prohibition of torture or cruel and degrading treatment.”

Not surprisingly, this claim caused quite a stir at yesterday’s (October 23) Third Committee meetings.  Many countries (Singapore, United States, Egypt, amongst others) used their time to push back on this claim.

Nonetheless, Mendez argued that those countries that did not participate in the emergence of the norms were free to reject them. In other words, persistent objectors to a customary international law norm are not bound by it.

In parallel, the ILC is reconsidering the formation and evidence of Customary International Law. The Death Penalty might be a relevant test case. What do Opinio Juris readers think?

Weekday News Wrap: Wednesday, October 24, 2012

by Jessica Dorsey

Actually, the United States Could Prosecute Ahmadinejad

by Kevin Jon Heller

Julian beat me to discussing Romney’s statement last night that, if elected, he would “make sure that Ahmadinejad is indicted under the Genocide Convention. His words amount to genocide incitation” (what we ICL scholars call “direct and public incitement to genocide”).  I disagree with Julian, however, that Ahmadinejad could not be prosecuted in the United States.  Pursuant to the Genocide Accountability Act, the United States has had universal jurisdiction over all forms of genocide since 2007.  Here are 18 USC 1091(c) and (e):

(c) Incitement offense. Whoever directly and publicly incites another to violate subsection (a) shall be fined not more than $500,000 or imprisoned not more than five years, or both.

(e) Jurisdiction.— There is jurisdiction over the offenses described in subsections (a), (c), and (d) if—(2) regardless of where the offense is committed, the alleged offender is— (D) present in the United States.

To be clear, I do not think there is even a colorable argument that Ahmadinejad is actually guilty of direct and public incitement.  But insofar as the U.S. disagreed, it would simply need to get its hands on him.

Clearing Up Romney’s Plan to “Indict” Ahmadinejad

by Julian Ku

Contra Peter, there was one indisputable reference to international law in last night’s U.S. presidential debate. Mitt Romney repeated his argument that Iran’s president should be indicted for inciting genocide.  This idea has spawned quite a bit of reaction, especially from the lefty blogosphere. One typical reaction, from Greg Sargent, suggests that Romney is turning his back on his famously anti-ICC adviser John Bolton because he seems to want the ICC to act. Others have worried about the free speech implications of such an indictment.  But only CBS News, I think, has managed to get the Romney campaign to clarify what he meant:

On Tuesday, Romney campaign spokesperson Andrea Saul told CBS News in an email that “A number of judicial venues would be available to hear a case under the Genocide Convention–from U.S. courts to foreign courts to international courts–and a number of entities could initiate the indictment.”

I think it is worth noting that the U.S. Genocide Accountability Act almost certainly could not be used since it requires a U.S. nexus (and there would be some First Amendment and head of state immunity problems anyway).  The ICC could only acquire jurisdiction over the case if the Security Council referred Iran to it, and this is not very likely. Some foreign jurisdictions could probably take the case via a theory of universal jurisdiction, but not many and Romney couldn’t initiate such a prosecution.

It seems to me that the entity most likely to get involved would be the International Court of Justice, which, by virtue of Article IX of the Genocide Convention, seems to have jurisdiction over a “relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III.”  I actually think this is the most plausible basis for acquiring jurisdiction over this issue.  But Romney’s repeated use of the phrase “Indict” suggests he is thinking of the ICC.  (I complained about his confusing language five years ago here but he plainly hasn’t been reading my posts here).

As I have said in the past, I think a genocide indictment or other legal action against Iran’s president is going to be rough sledding and not worth the effort. The Jerusalem Center for Public Affairs offered its best shot here, and although powerful, I am now doubtful it lays out enough facts for a winning case.   The most thorough discussion I’ve seen is from Gregory Gordon, one example of which is here.  We hosted a discussion here on Susan Benesch’s analysis in the Virginia Journal of International Law a few years ago.

I don’t think any of this matters a whole lot, although as the likelihood of a Romney presidency inches slowly upward, this may become a live issue one day soon..  My guess is that a President Romney would support a Security Council referral, and even if he didn’t win a referral, he will at least have fulfilled his pledge to highlight Ahmadinejad’s insane statements.  This is not a huge departure from past U.S. policy, since the U.S. supported the referral of Sudan (or at least didn’t oppose it) and actively pushed for the Libya referral.  It would probably irritate John Bolton, but if he got a high enough post, I bet he could live with it.

Breaking News: The Fourth Restatement on the Foreign Relations Law of the United States

by Duncan Hollis

I’ve long wondered whether and when the American Law Institute (ALI) might try to update its 3rd Restatement on the Foreign Relations Law of the United States.  Since its 1987 publication, the two-volume set, culled together under the leadership of Professor Lou Henkin, has had a tremendous impact.  It has been a frequent resource for U.S. courts and American international lawyers alike.  I recall vividly how often I used it in my first few years in private practice and its prominent place on my bookshelf once I decamped to the U.S. Department of State.  At the same time, part of the Restatement 3rd‘s visibility lies in the critiques it later generated at the hands of what Peter Spiro dubbed the “New Sovereigntist” movement.  Beginning with the work of Curt Bradley and Jack Goldsmith, the 3rd Restatement has been viewed as the conventional doctrine against which all other constitutional positions in foreign relations law may be measured.

So, it’s with great interest that I learned today that this past weekend the ALI announced plans to begin work on a new 4th Restatement on U.S. Foreign Relations Law.  My first question was who could shepherd such a project?  After all, on many of the current Restatement‘s positions there exists a stalemate between staunch defenders of Henkin’s original pronouncements and revisionists who insist he and his cohorts got it wrong (or, alternatively, that some newer developments require revisiting the original doctrine).  What the ALI did, however, was to appoint not one, but two “coordinating reporters” — Sarah Cleveland and Paul Stephan.  Both are influential and well-respected scholars. And although I would hazard to say that some of Paul’s work exhibits revisionist tendencies while some of Sarah’s writing may be closer to the spirit of Henkin’s earlier work, I think both are independent thinkers who should be expected to work seriously and thoughtfully on the ALI’s core mission — which is to say primarily what the law is, rather than what they would each like it to be.

The ALI Council also approved three topics for immediate work and assigned eight reporters to it:

Jurisdiction and Enforcement: William Dodge, Anthea Roberts, Paul Stephan

Treaties: Curtis Bradley, Sarah Cleveland, Edward Swaine

Sovereign Immunity:  David Stewart, Ingrid Wuerth

My understanding is that ALI hopes to have drafts of each of these portions ready for review in fall 2013 by Advisers and ALI Members.  Decisions on who those advisers will be is expected in early 2013.  Moreover, based on ALI precedent, the ALI Council also approved a group of “Counselors” for the entire project.  And, that too, is a pretty impressive group: John Bellinger III, Daniel Bethlehem, David Caron, Joan Donoghue, Conrad Harper, Harold Koh, Carolyn Lamm, and David Rivkin.

One can only imagine the machinations that went into selecting these Counselors, not to mention the reporters themselves.  But I will say on first glance there is some balance attempted in terms of scholars from all sides of the foreign relations and international law arenas.  Moreover, there is a heavy dose of practical experience in both groups, and a clear tendency to favor those with experience working for the U.S. State Department (among the reporters and Counselors, I count at least 10 who spent time in “L” — the State Department Legal Adviser’s Office — or led it).

I was elected to ALI last year, and as such, I guess I will have the privilege of being able to look at and comment on drafts of the new Restatement as they come forward.  I have no doubt, moreover, that this is a bit of a daunting task given the academic dissension on various points, not to mention the prospect for politically-charged disagreements.  Still, I was pleased to hear from Paul Stephan when I asked him about the prospects for success that he feels quite positive that a 4th Restatement is achievable.  As he put it:  “There will be controversy and disagreement, but that is a lawyer’s life blood. My hope is that, at the end of the day, there will be somewhat more clarity, and a bit less confusion, in this area of law than currently exists.”

All in all, an interesting development and one that will bear close watching.

The Election and International Law: Silence May Be Golden

by Peter Spiro

Let’s just say international law was not a fulcrum in last night’s debate. It’s not like the topic was being discriminated against — many important topics were ignored.  (Among them the Eurozone crisis, climate change, cyberwar, NATO, anything much of Asia beyond China, Mexico or Canada.)  Bob Scheiffer asked a question about drones, which Romney answered by agreeing with the Obama approach and which Obama answered not at all. The words “international law” were actually uttered by Obama in the context of “atrocities” committed by Iran, this after Romney suggested, somewhat implausibly, that Ahmadinejad be indicted for genocide. Strike a blow for universal jurisdiction! The only mention of the United Nations was an oblique one by Romney, favorably referencing a group of Arab scholars “organized” under its auspices.

Nor has international law made even cameo appearances elsewhere in the campaign. (Perhaps not systematic evidence, but there has yet to be a single post here on the subject, with only two weeks left to go.) Nothing about Law of the Sea or other international treaties, nothing much about Guantanamo and counter-terrorism policies, nothing much about the use of drones.

But things could be worse. International law has been Republican red meat in past campaigns. In the second debate between George W. Bush and John Kerry in October 2004, for instance, Bush took swipes at a range of international institutions. On the Kyoto Protocol: “It’s one of these deals where, in order to be popular in the halls of Europe, you sign a treaty. But I thought it would cost a lot — I think there’s a better way to do it.” On the International Criminal Court: “I made a decision not to join the International Criminal Court in The Hague, which is where our troops could be brought to — brought in front of a judge, an unaccounted [sic] judge.” And then there was the “global test” jab against Kerry and UN Security Council authorization for the use of force: “That’s the kind of mindset that said, ‘Let’s keep it at the United Nations and hope things go well.'”

So at least no one is bashing international law this time around. (Not that sovereigntists haven’t been expanding their target list, with the arms trade and disability conventions as new additions.) If Romney didn’t exactly trumpet the virtues of international law last night, some see a pivot away from the party’s anti-internationalists. The New Yorker’s John Cassidy describes a lonely John Bolton :

The hirsute and somewhat elderly gent keeling over in the G.O.P. green room was John Bolton, the Bush Administration hard-liner who, in 2005 and 2006, spent a year and a half camped out on the East Side trying to insult as many U.N. officials (and foreigners in general) as he could. In reaction to questions about why Romney had enlisted head cases like Bolton to his foreign-policy team, his flacks frequently pointed to the presence of less fearsome figures, such as Robert Zoellick, the former head of the World Bank. But who knew that Romney had also enlisted Katrina vanden Heuvel and Kofi Annan as advisers? Not I, anyway.

Romney could always pivot back if elected, so obviously there are no guarantees in his campaign agnosticism. But I sort of doubt it (or at least I sort of doubt he would make it a central agenda item, in the way that GWB did). President Obama hasn’t exactly been trumpeting international law, either, but as a Democrat there’s no percentage in it. A second Obama Administration would surely be better for those who see a national interest in bringing the US into line with international law. But the decline of IL as campaign-trail whipping post bodes well either way.

Weekday News Wrap: Wednesday, October 23, 2012

by Jessica Dorsey

Controversy at the Security Council: Children and Armed Conflict

by Kristen Boon

Children and armed conflict or “CAAC” (as the unharmonious acronym goes), has become a controversial area of activity for the UN Security Council.   Although the Security Council has adopted a series of important resolutions on the topic since 2005, its most recent foray into the fray led to four abstentions to Resolution 2068.   Azerbaijan, China, Pakistan and Russia declined to support the resolution, which largely repeated the language of prior resolutions.

Why the controversy?  Lurking behind attempts to address the induction of children into armed conflict situations are two important legal questions.

First, some query whether the definition of “armed conflict” established by the Geneva Conventions and Additional Protocols is met in the circumstances being investigated by the Special Rapporteur.  Specifically, some of the situations included in the SRSG’s reports force the issue of what status non-state actors should have under IHL, and particularly whether non-state actors can control territory.  In addition, its not clear whether the situations under investigation constitute sustained hostilities.  The Legal Opinion published in the UN Juridical Yearbook (2009) highlights this controversy.

Second, some countries are concerned that the Security Council is engaging in “mission creep” by considering situations in countries that are not otherwise on its agenda. The Security Council addresses CAAC listed on Annex 2 created under SC Resolution 1882. Most of these countries are not, however, part of the “situations” the Security Council has jurisdiction over pursuant to the usual Chapter VII procedure.  As a result, those suspicious of an activist Security Council assert situations are arriving on the Security Council’s agenda through a back door.

The biggest victims of the controversy are children.  The persistence of sexual assaults, attacks on schools and hospitals, and recruitment of children into armies is serious.   A number of countries have signed “action plans” with the UN to implement the principles in a concrete way.   The ICC’s Lubanga judgment of August 2012 reinforced this effort – convicting him of conscription and enlistment of children under 15 for use in active hostilities.   Similarly, the decision of the Special Court for Sierra Leone Tribunal in Taylor creates a strong legal framework to prosecute crimes against children.  The feisty new Special Rapporteur Zarrougi is not holding her punches.  She was to the point in her August 2012 report, and in her presentation to the Security Council in September.

Want to keep up to speed on this important issue?  Download this impressive new app developed by the Watchlist on Children and Armed Conflict and Liechtenstein’s mission to the UN, which collates key documents and policy questions on the issue.

The U.S. Can “Drone” the Benghazi Perpetrators, Even If They Are Not Linked to Al Qaeda

by Julian Ku

Kevin and I have still never met in person, but we’ve already had our first twitter encounter last week on the legality of a U.S. military response to the attacks that killed the U.S. Ambassador in Libya (as well as three other Americans).  Although the news reports on the attacks are not exactly clear, some have suggested that there is no Al Qaeda link to the groups behind the Benghazi attacks.  This does suggest a new wrinkle to the legal analysis of any U.S. military response.

First, under domestic American constitutional law,

Remembering Abe Chayes on the Cuban Missile Crisis

by Peter Spiro

With all the 50th anniversary retrospectives, seems like a good time to revisit Abram Chayes’ foreign relations law classic, The Cuban Missile Crisis: International Crises and the Role of Law. Chayes was the State Department Legal Adviser in October 1962, on leave from Harvard Law School; though Chayes was a participant in deliberations around the crisis, the book wears its autobiography lightly.

It’s a slim volume, a good primer on the legal aspects of the crisis. The quarantine decision might seem legally anodyne to us (does it?), but it was controversial at the time. Quincy Wright, for instance, thought it clearly illegal. Of course the quarantine was less legally and otherwise aggressive than the alternatives of an air attack and/or invasion, both of which were on the table (scorecard here). Chayes describes how a self-defense rationale for the action was considered and rejected. OAS authorization for the response loomed large, in a way that brings NATO and Kosovo to mind. Forgotten fun fact: Adlai Stevenson floated a deal to the ExCom under which the US would have withdrawn from Guantanamo – think of future headaches averted!

But the bigger pay-off is found in Chayes’ global observations on how the law influences foreign relations. Chayes shows legal realist tendencies, highlighting the contingencies of personal relations (eg, the fact that the Attorney General was the President’s brother and “adjutant”) and other circumstances. He is also a legal realist in stressing international law’s indeterminacy, which must have been radical against the backdrop of the formalist tendencies of the day. (He is at the same time not at all a Realist in the IR sense, calling out the “anthropomorphic fallacy” and highlighting bureaucratic interests in the way of another classic out of the crisis, Graham Allison’s The Essence of Decision.)

But indeterminacy does not make international law epiphenomenal, in this crisis or others. Public legal justification is a predicate to public acceptance, both domestic and international (a proposition demonstrated some years later, as Chayes points out, with the bombing of Cambodia) – “‘mere’ justification carries greater practical importance for the success or failure of great decisions than is commonly supposed by the analysts.” And the need for the legal justification itself spawns internal accountability mechanisms:

[I]f there can be no determinate answer, analysis and criticism can nonetheless distinguish a persuasive from a specious rational, a responsible and serious performance from a trivial one. In this way, the requirement of justification provides an important substantive check on the legality of action and ultimately on the responsibility of the decision-making process.

This still seems fresh even if others have made similar arguments since.

The book, published in 1974, is now out of print. Calling OUP: how about a Kindle edition? This should be required reading for students of foreign relations law, young and old.

Paperback Edition of “The Nuremberg Military Tribunals”

by Kevin Jon Heller

I am delighted to announce that Oxford University Press has just published a paperback edition of my book, The Nuremberg Military Tribunals and the Origins of International Criminal Law.  The paperback is priced at a very reasonable £25 — £45 cheaper than the hardback.  Here again is the description:

This book provides the first comprehensive legal analysis of the twelve war crimes trials held in the American zone of occupation between 1946 and 1949, collectively known as the Nuremberg Military Tribunals (NMTs). The judgments the NMTs produced have played a critical role in the development of international criminal law, particularly in terms of how courts currently understand war crimes, crimes against humanity, and the crime of aggression. The trials are also of tremendous historical importance, because they provide a far more comprehensive picture of Nazi atrocities than their more famous predecessor, the International Military Tribunal at Nuremberg (IMT). The IMT focused exclusively on the ‘major war criminals’ — the Goerings, the Hesses, the Speers. The NMTs, by contrast, prosecuted doctors, lawyers, judges, industrialists, bankers-the private citizens and lower-level functionaries whose willingness to take part in the destruction of millions of innocents manifested what Hannah Arendt famously called ‘the banality of evil’.

The book is divided into five sections. The first section traces the evolution of the twelve NMT trials. The second section discusses the law, procedure, and rules of evidence applied by the tribunals, with a focus on the important differences between Law No. 10 and the Nuremberg Charter. The third section, the heart of the book, provides a systematic analysis of the tribunals’ jurisprudence. It covers Law No. 10’s core crimes-crimes against peace, war crimes, and crimes against humanity-as well as the crimes of conspiracy and membership in a criminal organization. The fourth section then examines the modes of participation and defenses that the tribunals recognized. The final section deals with sentencing, the aftermath of the trials, and their historical legacy.

I have not made any substantive changes to the paperback edition — just fixed a couple of unfortunate spelling errors.

My thanks to John Louth and Merel Alstein at OUP for their unwavering support for the book.  And my thanks to those of you who have bought — or will buy — it!

Weekday News Wrap: Monday, October 22, 2012

by Jessica Dorsey

Upcoming Events: October 21, 2012

by An Hertogen

  • On November 1, 2012 at 4pm, the Columbia Law School Center for Constitutional Governance and the American Society of International Law are organizing a Panel Discussion on International Law and the South China Sea. Speakers are Henry S. Bensurto, Sir Daniel Bethlehem, KCMG QC, Harold Hongju Koh and Coalter G. Lathrop. Professor Bernard Oxman will moderate.
  • On December 4-5, 2012, Human Rights First will organize its inaugural Human Rights Conference: American Ideals. Universal Values, to mark the 64th anniversary of the Universal Declaration on Human Rights. The conference will take place in the Newseum in Washington DC.
  • On January 10-11, 2013, The T.M.C. Asser Instituut and the International Centre for Counter-Terrorism – The Hague, in cooperation with the International Humanitarian and Criminal Law Platform, the Konrad Adenauer Stiftung and the Municipality of The Hague, will host a symposium entitled “The Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in Countering Terrorism” with the aim of discussing the contours of various approaches states take against non-state actors with the goal of countering terrorism. Specifically, the two-day symposium will address issues related to uses of force and how these may affect and define the geographic and temporal scope and limitations of the laws of armed conflict in relation to counterterrorism. Besides this main theme, which operates within the armed conflict paradigm, this conference will also discuss and assess the law-enforcement paradigm. For more information, please see the event website. The conference program can be found here (.pdf) and you can register here.

Stewart on “Overdetermined Atrocities”

by Kevin Jon Heller

I want to call readers’ attention to an excellent new article by James Stewart (UBC; currently a Global Hauser Fellow at NYU) that is forthcoming in the Journal of International Criminal Justice.  Here is the abstract of the article, entitled “Overdetermined Atrocities”:

An event is overdetermined if there are multiple sufficient causes for its occurrence. A firing squad is a classic illustration. If eight soldiers are convened to execute a prisoner, they can all walk away afterwards in the moral comfort that “I didn’t really make a difference; it would have happened without me.” The difficulty is, if we are only responsible for making a difference to harm occurring in the world, each of the soldiers is right — none made, either directly or through others, an essential contribution to the death. In many respects, this dilemma is the leitmotif for individual responsibility in a globalized world, where criminal harm is so frequently occasioned by collectives. In order to assess the various solutions offered for the overdetermination problem in criminal theory, this paper reconsiders arguments for and against requiring causation in criminal responsibility, competing theoretical accounts of causation and the various unsatisfactory explanations for overdetermination presently on offer. While the paper uses examples from international criminal justice as illustrations, it concludes that overdetermination is a central moral problem of our time. A range of significant consequences follow for the theory and practice of international criminal law.

Causation is one of the most challenging issues in international criminal law, and Stewart’s article makes a significant contribution to our understanding of it.  He deserves our thanks.

Weekend Roundup: October 13-19, 2012

by An Hertogen

This week on Opinio Juris, we hosted a book discussion on Informal International Lawmaking, a new volume edited by Joost Pauwelyn, Ramses Wessel and Jan Wouters, hot of the presses from OUP. In a post on the conceptual approaches adopted by the authors, Joost Pauwelyn explained what they mean by “informal” international lawmaking and what the book hopes to add to the debate on non-traditional forms of international law. David Zaring asked where the boundaries of “informal” law stop and discussed the legitimization technique used in the book, a move away from the traditional state consent.

Ramses Wessel discussed the legal nature and impact of informal international law. In his comment, Tai-Heng Cheng focused on the relationships between international social norms, legality and normativity. Ramses Wessel’s reply argued that the notion of ‘presumptive law’, developed by Jan Klabbers, could be useful to understand the important normative role that informal law can play, and that actual effects and the acceptance of norms in legal orders are important factors to determine normativity.

Jan Wouters summarized the findings on the accountability and domestic implementation under informal international lawmaking. Chris Brummer’s comment added to this from the perspective of international financial law, and also flagged how courts are often side-lined by the non-binding nature of informal law.

To conclude the symposium, Joost Pauwelyn argued why we are now seeing more informality than ever before, and pointed to the recent WTO Decision in US-Tuna II as an example of how informal international law can affect dispute settlement by courts, and Jan Wouters and Sanderijn Duquet closed off with some further thoughts on accountability.

In what can be seen as an example of informal international lawmaking, Peter Spiro and Duncan Hollis discussed the negotiations of the International Telecommunications Union’s regulations later this year in Dubai. Peter pondered different models for the participation of the large number of industry representatives on the US delegation to the negotiations on an international telecommunications treaty. Duncan reported on a set of White Papers on cyber norms, resulting from a series of interdisciplinary workshops in which he has been involved.

Also of interest in relation to our book symposium is Harold Koh’s recent speech on 21st century international lawmaking to which Duncan drew our attention. In his speech, the legal advisor to the US State Department also explored alternatives to formal treaties and the role of non-state actors.

Another event that attracted attention on the blog was the DC Circuit’s opinion in Hamdan v. United States, holding that material support for terrorism was not a war crime before 2001. Kevin Jon Heller welcomed the decision, and in a later analysis argued why the historical case against considering conspiracy as a war crime is even stronger than that against material support for terrorism. Deborah Pearlstein discussed what Congress should take from Hamdan.

In other posts, Kevin dealt with a lot of quotes this week. First, he gave the award of Orwellian Quote of the Day to a US government request for a protective order in the 9/11 trials at Guantanamo Bay to avoid the publication of details about torture of the defendants. In the aftermath of the second US Presidential Debate, Kevin reviewed the transcript of the debate and of Obama’s speech in the Rose Garden to check what was said and what wasn’t about the Benghazi attacks. He also posted about a claim by the head of the American Family Association that Hitler’s Stormtroopers were male homosexuals.

Julian Ku felt little sympathy for Argentina whose naval training ship, the ARA Libertad, is the subject of an attachment claim in Ghana, brought by investors trying to recoup money they lost when Argentina defaulted on its sovereign bonds in 2002.

As always, we provided you with daily news wraps and a list of upcoming events. Julian also reminded us about the upcoming International Law Weekend in New York City, organized by the American Branch of the ILA, from October 25-27.

Finally, we look forward to next week, when Kristen Boon will join us as a new regular contributor. Welcome Kristen!

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

Harold Koh: Twenty-First Century International Law Making

by Duncan Hollis

Earlier this week, Harold Koh gave a speech.  And it wasn’t about conflicts, drones, or cyberwar, topics that have dominated the attention of international lawyers in recent years.  Rather, Koh’s speech was a meditation on the processes of international law-making that confront the State Department on a daily basis.  It was, simply put, a survey of the current international legal landscape from the U.S. perspective.

Koh reviewed the formal U.S. treaty-making process, citing past victories like the New START Treaty and the Obama Administration’s continued push for Senate advice and consent to the 1982 UN Convention on the Law of the Sea and the more recent Disabilities Convention.  There was also a cogent defense of the use of congressional executive agreements, with reference to controversies over the Anti-Counterfeiting Trade Agreement (or ACTA), where frankly I find myself aligned with the federal government in not seeing what the fuss is all about (or, rather, if there’s a fuss, it’s one so fundamental as to put into doubt two centuries of Congressional pre-approval of U.S. treaty-making).

Beyond this survey of formal international lawmaking, Koh also emphasized compliance, including a nod to his prior scholarly work (and the C-175 process, on which I spent a good deal of my own time at the State Department):

In my academic work, I have described a pervasive phenomenon in international affairs that I call “transnational legal process:” that international law is primarily enforced not by coercion, but by a process of internalized compliance. Nations tend to obey international law, because their government bureaucracies adopt standard operating procedures and other internal mechanisms that foster default patterns of habitual compliance with international legal rules. When I became Legal Adviser, I found that this is even truer than I thought. For example, most people are unaware of the so-called “C-175” process, named after a 1955 State Department Circular setting out a standardized procedure for concluding international agreements. The few academics who have ever noticed that process often assume it is nothing more than a rubber stamp. But having now seen it from the inside, I can tell you that the process is exhaustive and designed to ensure that all proposed U.S. international agreements — even if concluded by a different agency — are subject to a rigorous legal and policy review by the State Department before an any agreement is negotiated and concluded. Through this process, the State Department plays the same kind of clearinghouse role with respect to international agreements that OMB plays with regard to federal regulations. The C-175 process ensures not only that we have the legal authority to conclude the agreement in question, but also that every agency’s lawyers fully understand the nature of the domestic and international legal obligations we will undertake, so that we can accurately evaluate whether the United States will be able to comply with its new international legal obligations.


On the subject of compliance, Koh highlighted that the Administration has not yet given up on complying with the ICJ’s Avena judgment. And in terms of customary international law (CIL), Koh reiterated the U.S. view that major parts of the Vienna Convention on the Law of Treaties and the 1982 U.N. Convention on the Law of the Sea now codify CIL.

But, Koh’s talk also went well beyond the “formal” sources of international law, exploring the range of alternatives to treaty-making.  He discussed U.S. political commitments, including cooperative arrangements with the Arab League, the Copenhagen Accords, and the recent Washington Communique on nuclear security.  Koh dubbed these instruments as “layered cooperation”:

In any given area of international cooperation, the choice between international agreements and non-legal alternatives is not binary. Instead, the legal and the non-legal understandings are layered, and operate on different levels. Take for example the Arctic Council, a group of eight Arctic States — Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden, and the United States — which has emerged as an impressive example of a non-legal mechanism to facilitate sustainable development and international cooperation in the Arctic. The cooperation that takes place within the Arctic Council — generally through non-binding means — is layered on top of a legal backdrop of the Law of the Sea Convention, and the customary international law it reflects, which answer important questions about sovereign rights and jurisdiction in the Arctic. Now notice that the Council is not a formal international organization; it was not set up by an international agreement, and the majority of its work is not legally binding. But this has not detracted from — and has probably even enhanced — its success in facilitating robust international cooperation among the Arctic States at all levels, ranging from foreign ministers to bench scientists.

Koh’s speech also emphasized the increasing important role assigned in international lawmaking to non-State actors.  He ended, moreover, on a high note:

Make no mistake: this is not your grandfather’s international law, a Westphalian top-down process of treatymaking where international legal rules are negotiated at formal treaty conferences, to be handed down for domestic implementation in a top-down way. Instead, it is a classic tale of what I have long called “transnational legal process,” the dynamic interaction of private and public actors in a variety of national and international fora to generate norms and construct national and global interests. The story is neither simple nor static. Twenty-first century international lawmaking has become a swirling interactive process whereby norms get “uploaded” from one country into the international system, and then “downloaded” elsewhere into another country’s laws or even a private actor’s internal rules.

Now I am sure that Hugo Grotius had it good in his time. But believe me: there has never been a more challenging and exciting time to be an international lawyer or an international lawmaker. I have been lucky to spend my whole career steeped in this heady environment as a lawyer, scholar, advocate and public official. To be sure, there will always be challenges. But still, I find no belief more contagious than the simple, idealistic conviction, shared by so many, that even in a new millennium, it is still possible to aspire to help build a vibrant world order based on law.

For those who want to see the whole speech — check it out here — it’s worth the read.

[UPDATE:  Marty Lederman writes in with a link to a video of the speech for those interested in watching it.]

Kristen Boon Joins Opinio Juris

by Chris Borgen

We are happy to announce that this Monday Professor Kristen Boon of Seton Hall Law School will join Opinio Juris as our newest member.

Kristen’s articles range across a variety of topics in international law and, in particular, she has become a respected scholar regarding questions of the responsibility of international organizations and of states. She also writes on issues related to international law and post-conflict zones, and, among other things, is planning to track developments in the law of international organizations for the blog.

Kristen is a tenured faculty member at Seton Hall and is the Director of the Law School’s International Programs. Her previous experience includes clerking for Justice Ian Binnie of the Supreme Court of Canada and working as a litigation associate at Debevoise & Plimpton in New York.

And, by the way, you can also credit/blame Kristen for having introduced Julian and me to each other about thirteen years ago, which later played a part in this blog even being founded.

So it is with great pleasure that we welcome Kristen Boon, a long-time colleague, as our newest member.

Weekday News Wrap: Friday, October 19, 2012

by An Hertogen

Progress Reports from the Cyber Norms 2.0 Workshop

by Duncan Hollis

As Peter’s post yesterday noted, there’s a growing push to fundamentally re-align cyberspace governance via amendments to the ITU Regulations, which are set to be negotiated in December in Dubai.  I’m not sure that the ITU is up to the task.  But I do agree that the time is ripe for States and other stakeholders to agree on first principles or “norms” for cyberspace (note:  although many think cybernorms need to come in the form of a treaty, I’m not sure that is a practical, let alone a good, idea — to me, it seems like a first step would be to agree on the norms and then those doing the agreeing can figure out what vehicle best serves their distribution).

In academic and non-academic circles alike, there’s been a rash of attention to the question of norms and rules for cyberspace. Last month, Harold Koh made headlines as part of a conference for government officials on cyberspace.  I was at a conference at Penn Law on Monday discussing the status of international law and ethics with respect to both cyberwar and cyber-attacks falling short of the war threshold.

For the last two years, moreover, I’ve been participating in the MIT/Harvard/Toronto Workshops on cyberspace organized by Ronald Deibert of the University of Toronto, Roger Hurwitz of MIT, and Joseph Nye of Harvard. The workshops are truly inter-disciplinary conversations among political scientists, technologists, lawyers, government officials, etc. all of whom have varying levels of expertise on cyber-related topics.  The workshops aim to produce White Papers that States and others may use in preparation for conferences like the one that will occur in Dubai in December.  The thinking is that, just as conversations between academics and government officials developed and improved norms for other forms of technological innovation (think nuclear deterrence theory), so too might academics and government officials work together to articulate a set of shared norms for cyberspace.

The White Papers from the most recent Cyber Norms 2.0 workshop (held at MIT in September) are now available here (last year’s inaugural work product is here).  I authored the report on the Laws of Armed Conflict, but interested readers should also check out the other six panel reports on topics ranging from assessments of Western and non-Western approaches to cyberspace to characterizations of cyber incidents.

I’m hopeful both that these sorts of “big thinking” workshops will continue in the months and years ahead and that over time these efforts might eventually assist in the (much needed) effort to find some common ground on how we want to think about cyberspace governance and what sorts of behavior we want to encourage and discourage there (an e-SOS anyone?).

Book Discussion Informal International Lawmaking: Some thoughts on accountability

by Jan Wouters and Sanderijn Duquet

[Jan Wouters is Professor of International Law and International Organizations, Jean Monnet Chair Ad Personam EU and Global Governance, and Director of the Leuven Centre for Global Governance Studies and Institute for International Law at the University of Leuven (KU Leuven) and Sanderijn Duquet is a Junior Member of the Leuven Centre for Global Governance Studies.]

We would like to take a moment to personally thank this week’s contributors for their insightful observations about our book. This has resulted in a wonderful discussion and we could not think of a better forum than Opinio Juris to conduct this exercise.

As has been pointed out, the conceptual book on IN-LAW is, together with a case study book, the result of a two-year research project sponsored by the Hague Institute for the Internationalization of Law (HiiL). From the kickoff onwards, the project has emphasized the importance of addressing questions of accountability, effectiveness and the tensions that may exist resulting from the operationalization of these concepts. We would like to chip into the discussions and respond to some issues raised with regard to accountability.

One of the purposes of the project has been to reconnect international legal scholarship with the ‘real world’ and the many interesting informal normative processes that shape it, and make it more interconnected and inclusive. Accepting a role for informal processes in lawmaking and global governance is of course one thing; assessing the impact of fundamental constitutional principles (such as accountability) in relation to these processes and their output quite another. Even though we did face conceptual difficulties while drawing a general theoretical framework for accountability mechanisms in different (e.g. political, technical) types of IN-LAW bodies – struggles also pointed to by David Zaring – we remain convinced of the added value of this exercise. One of our observations is the existence of overarching criteria to promote accountability at the international level. Admittedly, our starting point, the application of a broad definition of accountability, including accountability-promoting mechanisms such as transparency, participation of stakeholders etc., most likely worked in our advantage.

For example, we would argue that democratic legitimacy of IN-LAW is enhanced by open, well-established and participative deliberation processes. Focusing on IN-LAW bodies, this seems hard to test, given that informal normative processes lack common procedural characteristics or participation requirements. The processes leading to the adoption of IN-LAW are organized at the level of the IN-LAW mechanism, and procedures in place take into account the specific dynamics between actors. Yet, it would be too much of a generalization to state that no shared features promoting accountability in decision-making exist among IN-LAW bodies. Our case studies did on the contrary find broad evidence of participative models and consensus-based decision-making. Additionally, certain cases showed a willingness to remedy participatory or decision-making deficits: see e.g. the reforms that have taken place in the Codex Alimentarius Commission and in the International Conference on Harmonization of Technical Requirement for Registration of Pharmaceuticals for Human Use in order to improve (more egalitarian) participation of all members.

Within the domestic legal order, the implementation of the output of IN-LAW processes is one of the main objectives. We fully agree with Chris Brummer that the role of courts in holding IN-LAW to account deserves further analysis. The IN-LAW project marked judicial review of IN-LAW as an accountability mechanism in the narrow sense, and indeed, as noted by David Zaring, as a control tool attractive to legal scholarship. In line with Joost’s interesting example of the inclusion of arguments based on IN-LAW by the WTO Appellate Body (US – Tuna II) we want to add that in domestic settings too, judges can assume such roles in controlling IN-LAW and its legitimacy. Domestic implementation of norms and standards is the most obvious way to expose IN-LAW to the review of courts. Yet, juridical techniques, e.g. the endorsement of IN-LAW as a legally relevant given in a case, have also proven to be catalysts to subject IN-LAW to judicial scrutiny without it formally having been transformed into a national legal norm of any kind. Although we remain mindful not to overlook traps of legal activism, we would like to argue that courts will never be completely sidelined in IN-LAW discussions: judgment is and will be passed on IN-LAW norms. Our case study book has e.g. compiled examples of court cases in the Netherlands (provided by Leonard F.M. Besselink) and Brazil (Salem Nasser and Ana Mara Machado) that considered IN-LAW. A more crucial question in this respect seems to be: what are the standards IN-LAW is balanced against? In domestic cases, to a large extent the national context dictates the legal mechanisms used. This ambiguous situation may not only be problematic for the individual case under review, but furthermore questions the suitability of courts to make general policy assessments of IN-LAW, as the IN-LAW book’s chapter by Corthaut, Demeyere, Hachez, and Wouters suggests.

Book Discussion Informal International Lawmaking: A Reply

by Joost Pauwelyn

[Joost Pauwelyn is Professor of International Law and Co-Director of the Centre for Trade and Economic Integration, Graduate Institute of International and Development Studies in Geneva.]

Thank you to Professors David Zaring, Tai-Heng Cheng and Chris Brummer for their truly insightful and extremely helpful comments.

Our book, and this discussion, is clearly only the beginning of a much longer debate on what, I predict, will turn out to be a radical transformation of the international legal system.

On David’s question: Why now? Haven’t we always seen informality?

Yes, but today is fundamentally different.  Firstly, because of technology, the transaction cost of cooperation or networking has fallen dramatically and is empowering new actors (public and private, including formerly voiceless or dispersed interests, think of developing countries, small businesses or consumer organizations) to participate in new, informal ways.  Secondly, given the complexity and pace at which our society operates, traditional forms of cooperation (treaties, formal IOs, state-to-state cooperation) are too rigid, ineffective and not adapted.  So “informal”, as we have defined it, has become cheaper and more effective; “formal”, more costly and ineffective.  I may have spent too much time already in Silicon Valley (on sabbatical at Stanford Law School) but internet and social networks are really a big part of this.  Here is Clay Shirky, writing about Facebook, Flickr and Wikipedia, not the Financial Stability Board or international standard-setting, but the gist is the same:

We now have communications tools that are flexible enough to match our social capabilities, and we are witnessing the rise of new ways of coordinating action that take advantage of that change … we are living in the middle of a remarkable increase in our ability to share, to cooperate with one another, and to take collective action, all outside the framework of traditional institutions and organizations.

(Here Comes Everybody, p. 20-21).

This is no longer just about Slaughter’s governmental networks.  The real “new world order”, thankfully, includes many actors and interests beyond just bureaucrats and experts.  Governments increasingly lack the knowledge and resources to be effective when operating alone; expert opinions need to be weighed and balanced in a broader public forum. And because of the decreasing cost of participation, the private interests heard are no longer just big industry.  This is where effectiveness and legitimacy can meet.  This is also why e.g. the G-20 and the Internet Engineering Task Force (IETF) – though relying on different legitimacy ingredients – can be studied as part of one broader phenomenon (David’s “policing the borders” point).

“If legitimacy is your grail”, says David, “why change the standard by which legitimacy is set”, i.e., traditionally “state consent”.  Here, Chris provides the answer: accountability today “often arises at the interstices of both international law and modern administrative practices”; it can be achieved “by old and new groupings, and depends on the actual mechanisms in place and not a black or white distinction between formal and informal networks”.  Contrary to conventional wisdom, being international law or not (e.g. consented to by states) is no longer decisive on whether something is legitimate or accountable.  Nor is being law or a binding international agreement decisive on whether something has an impact and should therefore be subject to domestic ratification (an assumption still held e.g. in the US Case Act).  As Tai-Heng puts it:  “the classification of social norms as law or not law does not necessarily provide guidance about their normative content or what the decisionmaker ought to do about those norms”.

This leaves us, however, with Chris’ important point: What is the role of courts in all this?  A truly inspiring lesson comes from a recent WTO Appellate Body report (the WTO not otherwise being a champion of IN-LAW, be it soft law or new actor involvement).  In US – Tuna II, the AB was willing to accept an outside norm as an “international standard” which WTO Members agreed to use “as a basis” for their own regulations, but only on condition that such norm meets a list of criteria linked to the authority of the body issuing the norm (be it public or private), the norm’s recognition both factually and normatively, and the process through which the norm developed (was it open, transparent, coherent, based on consensus etc.).  This is radically different from the one-stop shop of “state consent”.  And here at least, contrary to Chris’ intuition, formal norms (be it the TBT Agreement or a country’s mandatory regulation) do not “take higher precedence than informal ones” (e.g. Codex’s, the ISO’s or the IETF’s international standard). Indeed, this careful assessment by the Appellate Body of whether something amounts to an “international standard” is, in Tai-Heng’s words, based less on “a conceptual theory of law, but a moral theory about law”.

Thanks again, also to Opinio Juris for providing this forum (actually, another form of IN-LAW!) and The Hague Institute for the Internationalization of Law (HiiL) for funding the IN-LAW project.

US Delegation to Dubai Internet Negotiations To Be Larded With (Dominated By?) Industry Reps

by Peter Spiro

In a development that sounds (at least obliquely) in informal lawmaking, this from the very informative blog at The Hill:

Representatives from Google, Cisco, Facebook, Microsoft and AT&T will join Obama administration officials at a December conference in Dubai to negotiate the terms of an international telecommunications treaty.

The industry members are part of the 95-person delegation representing the United States as it opposes potential efforts to expand a United Nations agency’s authority over the management of the Internet during the upcoming treaty talks. They will join a group of officials from the State Department, Department of Defense, Federal Communications Commission and other agencies, along with a team of telecommunications attorneys from Wiley Rein and representatives from advocacy groups and trade organizations.

Countries from around the world will convene in Dubai to update the International Telecommunications Regulations treaty for the first time since 1988. The treaty will govern how voice, video and Web traffic will be managed as it travels across international borders.

Amazon, Intel, Juniper Networks, PayPal, Sony, TMG Telecom, Verizon, Ericsson and Go Daddy also have representatives on the U.S. delegation, while consumer advocacy group Public Knowledge is sending two representatives.

The lead-up to the Dubai negotiations, under International Telecommunications Union auspices, is starting to have a very big deal feel to it (see this somewhat long read from the Guardian on its various dimensions — it’s much more complex and cross-cutting than some are making it out to be). Westphalian possibilities?

I see two possible models for the broad non-state representation, which is possibly unprecedented (although industry has always been heavily involved at the ITU). First would be talkshop, in which included non-state representatives get the extra status that comes with inclusion on an official delegation and some access to state representatives. That would be a bump for lesser known entities like “dotGay LLC” (also on the delegation). But the real dealmaking remains an exclusively intergovernmental undertaking.

The other would be along the lines of corporate sponsorship of Olympic competitors.  That would be much more robust kind of involvement – the state provides the nameplate but nonstate actors are more like partners than hangers-on.

Ultimately it may not make much difference. Power rises to the top. Google, Facebook, Microsoft & co. will have a lot of pull at these negotiations, state-centric procedures or not.  Perhaps it would make more sense (from a transparency perspective) just to give the industry giants their own nameplates, so that we know better who’s speaking for whom.

Book Symposium Informal International Lawmaking: A comment by Chris Brummer

by Chris Brummer

[Chris Brummer is Professor of Law at Georgetown University Law Center]

Joost Pauwelyn, Ramses Wessel and Jan Wouters have assembled a remarkable cadre of leading intellectuals to tackle some of the toughest issues of international law—what explains informal international lawmaking, what are the legal questions flowing from it, and, as my comments will discuss, examining the key concept of accountability. With the great talent behind it, Informal International Lawmaking promises to be great reading with a lasting academic impact.

Opinio Juris has asked me to address the topic of accountability in informal international lawmaking. For the most part, theoretical models of accountability have applied the concepts of output and input legitimacy to what the book rightly describes as “traditional” international organizations. However, as I have recently explained in my own work on international financial regulation, soft law’s accountability challenge, often arises at the interstices of both international law and modern administrative practice, namely where treaty-ratification processes are routinely swapped out, or replaced, with administrative procedure. Notice and comment by extension redefines the role of the legislature and executive in the implementation of informal international agreements, and thus test and redefine our conceptions of both legitimacy and accountability and even the role of various governmental bodies in international affairs.

Many scholars at least intuitively feel uneasy about this change in international rulemaking. Claire Kelly and Sungjoon Cho, for example, have rightly raised the question of missing “epistemic communities” in the rulemaking progress. But the lackluster participation of such communities is often as much a consequence of dispersed stakeholder (especially consumer) interests as it is efforts to exclude relevant parties; plus they inform domestic “hard law” treaty ratification processes as much as they do soft law.

Like the editors of this volume, I, too, have ended up at a more optimistic point than where I began when first researching the global financial system. IN-Law can, under the right challenges, indeed be readily adapted to challenging circumstances while at the same time provide as much and in some cases even more transparency and accountability than many fields of traditional international law. There are, to be sure, important deficits in many existing IN-Law regimes, a point the book explores in considerable depth. But many of these deficits arise not only in informal organizations, but also in treaty-based forums like the European Union. Moreover, as I have observed in my own work, where we do see obvious democratic deficits, informal organizations are much more likely and capable of undertaking change than their hard law counterparts—from the G-20s usurpation of the G-7’s leadership role, to the formal inclusion of regional consultative bodies in the FSB’s new and revised 2012 Charter. Thus one of the book’s lessons, that accountability can be achieved by both old and new groupings, and depends on the actual mechanisms in place and not a black or white distinction between formal and informal networks, deserves highlighting.

That said, the interplay of traditional and non-traditional actors in informal rulemaking can be an important query. International financial forums are, for example, often embedded in or related to other regulatory processes. The Financial Stability Board gets its direction and reports to the G-20 central bank governors, finance ministers, and heads of state. This kind fragmented system creates plenty of opportunities for dysfunction, something Greg Shaffer (one of the book’s contibutors) and Mark Pollack have wisely noted elsewhere. But as I have noted in the soft law context, a fragmented architecture can also generate its own advantages. For example, in the larger financial regulatory system, the fact that the Basel Committee reports directly to not only central bankers but also finance ministers and heads of state introduces political accountability in ways that can’t necessarily be divined if one just looks at the Basel Committee’s membership. Moreover, heads of state now routinely set the agenda for financial rulemaking and in some cases even “ratify” the most important decisions of international bureaucracies. Collectively, their presence forces us to rethink not only issues of political economy, but also concepts of legitimacy and accountability.

The big question, and one that I am especially eager to explore in the future, is the role of courts in IN-Law. In some ways, the easy question is whether informal institutions, networks and organizations
should incorporate international law. Intuitively, it would seem that formal norms (recognized as international law) should take higher precedence than informal ones. The harder issue is to what extent informal norms should be espoused by formal institutions and courts, especially where they are explicitly concluded in ways to not create legal obligations or commitments. Contributors in the volume make the smart (and accurate) observation that the role of courts depends for the most part on the way IN-LAW is implemented domestically. That said, it’s hard to talk about courts without talking about concomitant issues of compliance and obligation. We only care about legitimacy to the extent to which international law “matters”—and that actors should be (or are) obligated to comply with it. And to the extent it matters, we want to be sure that legitimate rules are obeyed and that illegitimate rules are either ignored or made legitimate. As I have discussed elsewhere, how courts would ensure either is difficult where informal rules are involved since they are often explicitly non-binding, and thus generate no formal legal obligation, yet still exhibit a compliance pull due to market preferences, institutional sanctions and even reputational consequences for actors. But because they are not formal legal obligations, courts are sidelined, in the case of international financial law, often from both the standpoint of expertise and jurisdiction. Thus to address the role of courts requires rethinking what IN-Law means as not only for international rule-making, but domestic law as well.

Book Discussion Informal International Lawmaking: Accountability and Domestic Implementation of IN-LAW

by Jan Wouters

[Jan Wouters is Professor of International Law and International Organizations, Jean Monnet Chair Ad Personam EU and Global Governance, and Director of the Leuven Centre for Global Governance Studies and Institute for International Law at the University of Leuven (KU Leuven).]

Once we conclude that IN-LAW is not devoid of impact and cannot be ignored as a normative process, the question of the accountability of the involved actors, processes, and output may be raised. This question is addressed in Part IV. Eyal Benvenisti (Chapter 13) ‒ one of the inventors of the term ‘informal international law’ ‒ kicks off by mapping the different informal lawmaking mechanisms and by distinguishing among the various actors that initiate and take part in informal international lawmaking. The purpose of his exercise is to contribute to the assessment of possible ‘accountability gaps’ of IN-LAW, by taking into account the notion that different lawmaking mechanisms may benefit certain actors and constituencies while they disadvantage others. Who are the disregarded constituencies whose accountability deficit must be accounted for? And how can we address the accountability gaps of the IN-LAW processes?

The next step is taken by Tim Corthaut, Bruno Demeyere, Nicholas Hachez, and Jan Wouters (Chapter 15), who follow-up on the analysis by Benvenisti by assessing whether − and to what extent – such IN-LAW mechanisms are subject to some form of accountability and, if so, in what form. This chapter is used to operationalise accountability within the IN-LAW framework. The authors pinpoint some of the structural weaknesses when it comes to accountability of IN-LAW mechanisms, both at the level of the mechanism as such, and the accountability of the actors that operate within them. They suggest ways to strengthen IN-LAW accountability.

Fabian Amtenbrink (Chapter 15) takes it from there and develops a conceptual framework based on which the (democratic) accountability of IN-LAW actors can be assessed. He uses macroeconomic policy and financial market regulation as a case study to explore this question. The author explores whether and to what extent benchmarks (indicators) for the accountability of IN-LAW actors may be constructed based on such a framework and, moreover, whether such a framework could allow for a comparative assessment of IN-LAW actors in different policy fields. The purpose is to establish whether and to what extent the organisational function of constitutional systems, that is the legitimation of the exercise of public power through a system of checks and balances and mechanisms of democratic accountability, actually apply to IN-LAW.

Although purely private cooperation falls outside the scope of the project, participation of private actors in IN-LAW networks otherwise populated by public officials is a phenomenon that should not be neglected. Harm Schepel (Chapter 16) addresses the question of whether the distinction between public and private actors is of much import for issues of accountability and legitimacy of the output of private or hybrid regulatory bodies. After all, in some instances the exercise of public authority is in play and issues of accountability are likely to arise. Schepel develops his argument along two lines: the ‘bright line’ option (in which a strict separation is maintained between the spheres of law and ‘private norms’) and the ‘grey zone’ option (which operates on a rather more fluid notion of law and regulation, and recognises informal norms as legitimate if and when certain conditions are fulfilled). The author uses the role of ‘international standards’ in the World Trade Organization’s Technical Barriers to Trade and Sanitary and Phytosanitary Agreements to illustrate the role of ‘private’ standards in international lawmaking.

While these questions may be relatively new for international lawyers, for more than four decades similar questions have been at the core of some debates in European Union law. European agencies (with networks reaching far beyond the ‘public’ arena) are often part of both formal and informal networks. The ‘agencification’ process at the global level (see Berman and Wessel above) shows some resemblance to the earlier developments in the European Union, in particular in relation to the question of accountability. Ellen Vos (Chapter 17) seeks to identify what kind of mechanisms have been created to control European agencies and hold them accountable, and to reveal what kind of deficiencies there still are. The author uses this analysis to draw some lessons as regards accountability processes for IN-LAW.

The contributions in the preceding Parts frequently point to the domestic elaboration and implementation of IN-LAW. Indeed, the effects of IN-LAW are mostly felt at the domestic level, which is both the appropriate level for the emergence and implementation of the norms and the level where possible conflicts of norms become apparent. At the same time we should not forget that IN-LAW bodies are in most cases composed of (representatives of) national public authorities. As a result, domestic mechanisms are likely to play a crucial part in keeping IN-LAW accountable. Part V (Domestic Elaboration and Implementation of IN-LAW) is devoted to these questions.

In addressing the ‘two-way’ street as an essential characteristic of IN-LAW, Lorenzo Casini (Chapter 18) analyses the role of domestic public authorities within global networks. According to the author, the very idea of IN-LAW cannot be understood without considering the interplay between national and global actors. The chapter thus examines how public bodies (referred to as domestic ‘terminals’) take part in the global networks and how this participation affects domestic legal orders. At the same time, Casini picks up a point made by Schepel as well: many of the global networks are in fact hybrid public-private networks and the role of private actors is obvious. Two main issues guide the analysis: the institutional and procedural design of global networks, especially in terms of their domestic dimension; and the existing accountability and review mechanisms.

Answers to the question of the accountability of IN-LAW actors can indeed be found (also) at the domestic level. Focusing on Swiss law, Alexandre Flückiger shows how domestic law has introduced various mechanisms to ensure their legitimacy and control. The author reveals that as a result of these developments accountability mechanisms have gradually formalized non-binding acts, so that they are no longer merely informal themselves. Flückiger’s starting point is that since accountability is called for when States use non-binding acts to shape the behaviour of individuals, the same is required also in respect of IN-LAW which has similar effects.

To some, however, the ultimate answer as to the nature and effects of IN-LAW is to be found in the way that it is applied by domestic courts. While formal legal proceedings are but one way of dealing with accountability, an application of IN-LAW rules by a court would strengthen the idea that IN-LAW forms part of the legal system. The actual role domestic courts can play, partly depends on the way IN-LAW is (to be) implemented domestically. As the case studies show, some IN-LAW instruments are far more complex, also in relation to their domestic implementation, than formal international agreements and decisions. One particular example is formed by the Basel II Accord on banking supervision. As indicated by Pierre-Hugues Verdier (Chapter 20), Basel II is a central case of IN-LAW. It is informal along all three dimensions identified in the first Chapter of this volume: it is a non-binding policy framework, rather than a treaty; it was adopted by the Basel Committee, a transnational regulatory network; and national banking regulators, rather than traditional diplomatic actors, were the principal participants. In the absence of formal accountability regimes at the level of the Basel Committee, the author investigates whether domestic oversight compensates for this ‘accountability deficit’.

As a follow-up, Ayelet Berman (Chapter 21) examines the role domestic administrative law may or should play in the accountability of Transnational Regulatory Networks (TRN). Many TRNs are composed of domestic regulatory authorities, which triggers the role of domestic administrative law in the accountability of TRNs. The author develops an analytical framework which she applies to a case study of the International Conference on the Harmonization of Technical Requirements for Registration of Pharmaceuticals for Human Use (ICH) examined from a US administrative law perspective. It is argued that domestic law is significant in establishing the accountability of TRNs towards internal stakeholders, and has some role to play, albeit limited, in offsetting the problem of disregard towards external stakeholders.

Weekday News Wrap: Thursday, October 18, 2012

by Jessica Dorsey

Why Hamdan II Dooms Conspiracy as Well as Material Support

by Kevin Jon Heller

Jack Goldsmith offers five thoughts today at Lawfare about the D.C. Circuit’s Hamdan II decision.  I agree with two of his thoughts — that the government is free to rely in future prosecutions on alternatives to material support (MST) such as aiding and abetting terrorism, and that (sadly)  al-Bahlul could be detained indefinitely if he is ultimately acquitted by his military commission.  But I take issue with his claim that Hamdan II does not necessarily mean that the D.C. Circuit will reach a similar conclusion in al-Bahlul regarding conspiracy:

I am less confident than Steve and Ben that this opinion forecloses conspiracy claims in military commissions.  The historical arguments for a conspiracy charge in military commissions under the laws of war, while not slam dunks, are (as Steve and Ben acknowledge) more powerful than similar arguments for material support.

Goldsmith doesn’t tell us why “the historical arguments” for conspiracy are better than for MST.  Instead, he simply flags stray language in the D.C. Circuit’s Hamdan II opinion that international law includes “other similar war crimes” to terrorism, which provides no support for the idea that conspiracy is a war crime, and notes that Justice Kennedy refused to join the Supreme Court’s plurality opinion in Hamdan rejecting the idea that conspiracy is a war crime.  It is certainly possible that the Supreme Court would reject the D.C. Circuit’s methodology for determining whether something is a war crime under international law; it’s also possible that the D.C. Circuit will not apply its Hamdan II methodology in al-Bahlul. But that is very different than saying the historical case for conspiracy is stronger than the historical case for MST.  In fact, I think the opposite is likely true.

To see why, let’s examine the D.C. Circuit’s analysis of MST (pp. 22-25).  Here are the eight reasons why the court concluded — rightly — that “[t]here is no international-law proscription of material support for terrorism.”

  • No relevant treaty makes MST a war crime.
  • The Hague Convention IV does not mention MST.
  • The Geneva Conventions do not mention MST.
  • The Rome Statute does not deem MST a war crime.
  • The ICTY, ICTR, and SCSL statutes do not deem MST a war crime.
  • No international tribunal has ever held that MST is a war crime.
  • International-law scholars agree that MST is not a war crime.
  • The JAG Law of War Handbook does not identify MST as a war crime.

As any international criminal law scholar knows, points 1-7 apply equally to conspiracy.  No treaty has ever deemed conspiracy a war crime*, no statute of an international criminal tribunal has ever deemed conspiracy a war crime, no defendant has ever been convicted of conspiracy by an international criminal tribunal, and no ICL scholar I know considers conspiracy a war crime (under international law).  Moreover, not only does the JAG handbook not identify conspiracy as a war crime, it specifically notes (p. 197) that “[n]o separate crime of command responsibility or theory of liability exists, such as conspiracy, for command responsibility in the UCMJ.”

In fact, as I said, the historical case against conspiracy is even stronger than the historical case against MST.  First, although Article 6 of the Nuremberg Charter criminalized “conspiracy to commit” crimes against peace, crimes against humanity, and war crimes, the IMT specifically — and famously — rejected the idea that conspiracy was a “new and separate crime” and limited conspiracy to crimes against peace. Second, and most importantly, as I have discussed before, the Nuremberg Military Tribunals uniformly concluded, after extensive briefing and oral argument, that — to quote the common language from the Medical, Justice, and Pohl judgments — they had “no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offense.”  As a result, although a number of defendants were charged with conspiring to commit war crimes, none were ever convicted of the crime.

Finally, I disagree strongly with Goldsmith’s fourth point: “along one dimension yesterday’s court of appeals decision strengthens the legitimacy of military commissions by demonstrating that any military commission decision will be subject to vigorous judicial review.”  What it actually demonstrates is that Congress made a serious error when it created the Court of Military Commission Review, which lacks even basic competence in international law — as its terrible “close enough” decisions in both Hamdan II (MST) and al-Bahlul (conspiracy) indicate.  Goldsmith’s claim would be more persuasive if the existence of the CMCR hadn’t prevented “vigorous judicial review” of Hamdan’s MST conviction and al-Bahlul’s conspiracy conviction for nearly two years.

* The Nuremberg Charter did not consider conspiracy a war crime; it considered it a distinct kind of offense.

Right-Wing Hate Group Leader: Gays Responsible for the Holocaust

by Kevin Jon Heller

The leader in question, not surprisingly, is Bryan Fischer, the head of the extremely powerful American Family Association.  Here is what he said in an interview:

Hitler recruited around him homosexuals to make up his Stormtroopers, they were his enforcers, they were his thugs. And Hitler discovered that he could not get straight soldiers to be savage and brutal and vicious enough to carry out his orders, but that homosexual solders basically had no limits and the savagery and brutality they were willing to inflict on whomever Hitler sent them after. So he surrounded himself, virtually all of the Stormtroopers, the Brownshirts, were male homosexuals.

I’m not even going to take a cheap shot at conservatives.  No conservative I know would ever say something that stupid and offensive.

Book Discussion Informal International Lawmaking: Legality and Normativity – A Reaction to Tai-Heng Cheng

by Ramses Wessel

[Ramses Wessel is Professor of the Law of the European Union and other International Organizations at the University of Twente]

First of all many thanks to Prof. Tai-Heng Cheng for taking the time to respond so eloquently to the parts on legality and normativity in our book on Informal International Lawmaking. Because of his knowledge of the area (as for instance reflected in his excellent book When International Law Works), his comments are very valuable. In fact, the comments touch upon an essential debate that was started by the book, but which is far from finished.

The comments underline that one of the most difficult questions in relation to informal international lawmaking concerns the legal nature of the norms. It is well accepted that not all law or legal norms impose or proscribe specific behaviour or legally binding rights and obligations. Normativity must not be confused with imperativity. This notion lies at the back of our analysis as well. Indeed, the debate between those who argue in favour of a bright line between law and non-law and those arguing for the existence of a grey zone is well-known. In practice the divide may not always be clearly visible. Yet, large parts of the debate have been devoted to the establishment of one or more criteria to decide what makes an instrument law (be it sanctions, formalities, intent, effect, substance, or belief). Thus, depending on how one distinguishes between law and non-law, informal law output may or may not be part of international law. If formalities or intent matter, a lot of the informal output would not be law. If, in contrast, effect or substantive factors decide, a lot would be law.

While Prof. Tai-Heng Cheng argues that claims about the concept of law are inevitably premised on assumptions and motivations that are not conceptual, it became clear during our debates that we nevertheless needed to depart from the assumption that we are at least dealing with law-making and that we somehow needed to conceptualise this. Would this not be the case, then – for most lawyers − psychologically, the project would be very difficult to handle. It then is a small step to raise the question whether it is not possible (or perhaps even more logical) to view these prima facie non-legal phenomena as law.

A key element here may be the notion of ‘presumptive law’. This notion was developed by Prof. Jan Klabbers in his important publication ‘Law-making and Constitutionalism’ in his co-edited volume The Constitutionalization of International Law. In building his argument, Klabbers departs from the more or less pragmatic concept of law developed by Tamanaha: law is “whatever people recognize and treat as law through their social practices”. Indeed, as Klabbers holds, this is less open-ended than it seems as people generally do not regard all rules they live by as ‘law’. The validity problem that would emerge out of this approach could be solved by including Fuller’s eight desiderata to ensure that the law would be both morally acceptable and procedurally sound. Yet, as Klabbers rightfully concludes: in the end we cannot escape the need for a formal criterion. And this may bring us back to familiar territory: “It is difficult to imagine the formal validity criterion to be anything other than a consent-like criterion, whether consent be expressed directly or indirectly, as is the case when it comes to binding [sic] majority decisions within international organizations.” Yet, we need to be able to establish whether the actors expressing their consent (democratically, legitimately) represent the subjects of the new rules. This is where Klabbers proposes to focus on how the norms are received by their possible addressees: “One possible approach might be to propose what can be labelled ‘presumptive law’: normative utterances should be presumed to give rise to law, unless and until the opposite can somehow be proven”. Obviously, this presumption could be rebutted, but the idea is to reverse the burden of proof.

The notion of ‘presumptive law’ may be helpful to solve a dilemma underlying the informal international lawmaking project. In particular in the case of actor informality, the norms are not enacted by states or state representatives, but by persons sitting in international/transnational boards and councils because of their specific expertise. Everything that is produced can be labelled under the heading ‘normative utterances’, but the fact that in many cases we are not dealing with formal international organizations, or with state representatives with a national public mandate, makes it difficult to square with the traditional sources doctrine. Yet, it is clear that, irrespective of their ‘informal’ nature, the norms may be hard and do play a role in legal orders.

During the debates on the legal nature of informal international lawmaking we continued to be confronted with the sources question, or at least with the question of the source of the authority which seems so clearly exercised by the actors involved. Klabbers argues that to come to terms with the idea that somehow ‘consent’ should be at the basis of ‘law’, we may need to rethink representative decision-making. Again, this could be done by focusing not so much on the input, but rather on the output: “rethink the way law is recognized”. Obviously this can lead to an acceptance as law of a large (indefinite?) number of normative utterances, and only when the presumption is rebutted this would lead to the conclusion that we are dealing with a non-legal phenomenon. Based on the many case studies (which will be published separately in a series of our sponsor, the Hague Institute for the Internationalisation of Law – HiiL) it seems safe to argue that the presumption that we are indeed dealing with law is quite difficult to rebut.

We may indeed have to focus more on the actual effects and the acceptance of the norms as playing a role in legal orders. At the same time, we feel that acceptance cannot be decoupled from the origin of the norms both in terms of the authority (or authorities) they emanate from and their procedural pedigree. Many of the case studies in the informal international lawmaking project indicate that the acceptance of the norms – and perhaps their legitimacy – is based on the fact that they are created by people who know what they are talking about and in such a way that takes account of all affected stakeholders. ‘Expertise-based legitimacy’ or ‘executive authority’ are not new phenomena but may very well form a key to a more inclusive understanding of international legal norms. Again this is not ground breaking. Yet, in the case of informal international lawmaking, it is not about authority to make secondary norms on the basis of primary legislation (which is usually the case when we talk about the role of experts in decision-making), it is in fact about primary norms. This may make it difficult to apply the ‘executive authority’ argument in our case.

When turning to ‘expertise’ as a possible source or authority in many of the informal international law cases, we are bound to run into the classic debates related to expert-based legitimacy (the 1931 paper by Laski seems to have been written today). This, obviously, may have consequences for the extent to which the expert norm-setters can actually be seen as representing the final addressees of the norms. On the basis of which (procedural and substantive) criteria do we select the actors in informal international lawmaking?

Traditional international law would generally become valid in domestic legal orders only after (prior or ad hoc) approval by a parliament. In informal international lawmaking, democratic legitimacy would be at stake. Yet, in a (so far) unpublished paper we argue that this could well be compensated by other procedural meta-norms against which new cooperation forms ought to be checked. We refer to this as ‘thick stakeholder consensus’, imposing limits in respect of actors (authority), process and output. Intriguingly, this benchmark may be normatively superior (rather than inferior) to the validation requirements of traditional international law, coined as ‘thin state consent’. The argument we try to build to escape the dilemma presented by accepting informal international law as ‘presumptive law’, irrespective of the fact that it is difficult to square with the traditional sources doctrine, is indeed to put the democratic and legitimate nature of traditional law into perspective. Whether this will ultimately lead us to accepting Prof. Tai-Heng Cheng’s thesis that there is no purely conceptual answer to whether a decision-making process or norm is legal remains to be seen.

Reminder: International Law Weekend 2012, October 25-27 in New York City

by Julian Ku

A quick reminder from FOB (“Friend of Blog”) Professor Ruth Wedgwood that the American Branch of the International Law Association’s International Law Weekend 2012 will be held next week in New York City. The full program is here, and includes several other FOBs as well as several of our permanent contributors.  And here is a message  from Professor Wedgwood herself::

The weekend opens at 6:30 p.m. Thursday, October 25 at the New York City Bar Association at 42 West 44th Street, with a blazing panel on China — with former U.S. Ambassador to China Winston Lord, NYU Law School human rights expert Jerome Cohen, China environmental expert Liz Economy of the Council on Foreign Relations, and legal eagle John Crowley of Davis, Polk and Wardwell — followed by a free cocktail reception.

It continues 9 a.m. Friday October 26 at the Lincoln Center campus of Fordham Law School, 140 West 62nd Street — with a Conversation with famed former SDNY U.S. Attorney and Debevoise litigation chief Mary Jo White, who indicted Bin Laden and pursued Siemens for foreign corrupt practices; a talk by the chief Yugoslav tribunal war crimes judge Ted Meron;  a two-part series on ICSID investment arbitration with ICSID secretary general Meg Kinnear; a talk by blind Chinese human rights activist Chen Guangcheng, and a host of other panels.

The clinch continues on Saturday with discussions of the Alien Tort Statute, the Israeli-Iranian crisis and the nature of anticipatory self-defense, the cholera scandal in Haiti where blame has been cast in the direction of U.N. peacekeepers, the prosecution of sexual violence in international law; intellectual property rights enforcement; sports law; off-shore tax havens and transfer pricing;  the situation in Egypt; Islamic finance; the law of outer space;  and a career-path fair.

Free for all students; $70 package deal for practitioners who join the  International Law Association and wish to attend the conference;  and $50 for members of the Association of the Bar of the City of New York.

The event is supported by 25 law schools and graduate law programs, as well as by blue chip law firms, bar associations, and law publishers.  Registration is available at

Book Discussion Informal International Lawmaking: Legality and Normativity

by Tai-Heng Cheng

[Tai-Heng Cheng is the international disputes partner of Quinn Emanuel Urquhart & Sullivan, LLP in New York.  Views expressed here do not necessarily reflect those of his firm or its clients.]

Congratulations are due to the authors of Informal International Lawmaking, and especially to the editors, Professors Pauwelyn, Wesssel and Wouters, for their keen observations and appraisals of the global decisionmaking processes as they operate today.

Opinio Juris has assigned me the task of commentating on the legal and normative nature of international decisionmaking processes that the authors call “informal international lawmaking.”  A sensible place to start is the authors’ discussions of whether these social processes counts as law.  Although Professor Pauwelyn seeks to move away from the “old debate about whether or not international law is law,” (p 140), he nonetheless ends up in that debate when he suggests that international social norms created by “informal” processes could constitute law, on the basis of several possible criterion for legality, such as the belief that an informal social norm is law. (p 140).  Across the debating chamber, Professor d’Aspremont rejects that perception of informal norms as law.  He laments: “[O]ne may wonder why international legal scholars cannot study a phenomenon without portraying it as a legal phenomenon.” (p. 199).

In my view, there is no purely conceptual answer to whether a decisionmaking process or norm is legal.  As I discussed in Chapter Two of When International Law Works, claims about the concept of law are inevitably premised on assumptions and motivations that are not conceptual.  They are, instead, normative, personal, and political in nature.  Professor Pauwelyn confesses that the decision to classify international social norms as law is often driven by “the practical consequences of doing so.” (p. 141).  In contrast, Professor d’Aspremont objects to calling informal social norms law because he believes that doing so would have “fallout” consequences on the “normative character of international law (1) as a whole; (2) its authority; and (3) eventually, the possibility of preserving a uniform law-ascertainment language among legal scholars.” (p. 196).  Professor d’Aspremont further charges that scholars are motivated to “pluralize” the concept of law in order to “stretch the frontiers of their own discipline,” because “there are less fields untouched and less room for original findings[.]” (p. 197).

Even if it were possible to determine in purely conceptual terms whether or not international social norms were law, that answer sheds little light on whether those shared social expectations are normative.  The authors who favor informal lawmaking argue that that process is normatively good because it is generally more inclusive of stakeholders, more transparent, and therefore more accountable. (p. 148).  However, there are many democratically-created rules that are misguided or reflect poor collective choices.  Even for those who believe that the arguably accountable process of informal lawmaking is more important than the content of  norms that result from that process, informal lawmaking nevertheless would be deemed good because it is accountable, not because it is law.  Whichever way one looks at the issue, whether a norm is law does not tell us whether it is good.

Thus, from the practical standpoint of a decisionmaker, the classification of social norms as law or not law does not necessarily provide guidance about their normative content or what the decisionmaker ought to do about those norms.  Consider, for example, the job of an investor-state arbitration tribunal, which was not covered in Informal International Lawmaking. The primary task of the tribunal is to resolve the dispute according to established legal rules.  Each arbitrator has a moral obligation to do so because the parties have delegated to him limited authority to decide the outcome of the dispute according to the law.  However, in discharging his moral obligation, the arbitrator often cannot avoid appraising the content of a relevant norm to help decide how persuasive it is.  In investor-state disputes, tribunals routinely cite and rely on prior awards.  Because there are no rules of precedent, tribunals have to decide which awards are persuasive by inquiring whether the awards are good or widely-accepted, rather than by determining only if the awards are law.  What decisionmakers need is not a conceptual theory of law, but a moral theory about law.

My provocations about the relationships among international social norms, legality and normativity should not detract from the magisterial achievement of the authors in refocusing the scholarly community’s attention on the dynamic processes of decisionmaking in international problems, and the crucial task of seeing how we can refine those processes to better promote basic values that everyone desires. In so doing, Informal International Lawmaking has made a contribution to what Harold Laswell and Myres McDougal described as a key task of “relevant jurisprudence”:

[T]o bring all these vague assumptions – of varying degrees of comprehensiveness, consciousness, explicitness, and realism – to a clear focus of attention for rational evaluation and, perhaps, for renovation into more systematic and dependable knowledge.

Jurisprudence for a Free Society, p.21.

Book Discussion Informal International Lawmaking: Legal Nature and Impact

by Ramses Wessel

[Ramses Wessel is Professor of the Law of the European Union and other International Organizations at the University of Twente]

In Part II we focus on the legal nature of informal international lawmaking. Perhaps ironically the question of whether IN-LAW should be perceived as forming part of the ‘legal universe’ is one of the most prominent ones addressed in this book. The project started off under the working title ‘Informal International Public Policy-Making’. However, on the basis of the empirical analysis we found that it is quite often difficult not to regard informal normative processes as elements of ‘lawmaking’ or at least having important legal effects or triggering a need to be regulated by law. One possible critique could be that ‒ in order to stay in business ‒ lawyers now try to include governance phenomena that were traditionally studied by political scientists and public administration scholars. Indeed, it no longer seems to be a taboo to use terms such as governance, regulation, legitimacy, or accountability in legal studies. Yet, in the end, lawyers are interested in legal systems and the main new element in the discourse seems to be that they acknowledge more frequently that the legal system cannot be studied when other normative processes (with perhaps a deeper impact on the addressees or as a first phase of an emerging legal rule) are ignored.

This issue is most prominently discussed by Joost Pauwelyn (Chapter 6), when he raises the question ‘Is it International Law or Not, and Does it Even Matter?’. The universe of norms is larger than the universe of law. At the same time, within the realm of law, not all law imposes or proscribes specific behaviour or legally binding ‘rights and obligations’. The question of the distinction between ‘law’ and ‘non-law’ has kept legal theorists busy for ages, but it continues to pop up when lawyers feel the need to mark their territory. The main question raised (and answered) by Pauwelyn is whether ‘output informality’ implies that IN-LAW output is not international law.

Dick Ruiter and Ramses Wessel (Chapter 7) go one step further and depart from the presumption that IN-LAW is law. What arguments does legal theory offer when we wish to include the IN-LAW processes in our legal thinking? Indeed, using institutional legal theory, the authors ask whether it is not possible (or perhaps even more logical) to view the prima facie non-legal phenomena as law. Using one of the case studies as illustration, they argue that we may need to reassess the sources of international law to the extent that consensus within an international professional community on the best available knowledge and expertise can offer a foundation for legal powers to issue hortations enjoying validity under international law.

Quite the opposite position is taken by Jean d’Aspremont (Chapter 8), who warns us that international legal scholars studying the normative activities taking place outside the traditional remit of international law are often induced to loosen their concept of international law with a view to broadening the span of their discipline. In the author’s view it is not needed or even preferred to attempt and encompass all ‘new’ normativity in legal terms. ‘[W]hy not com[e] to terms with the interdisciplinarity of such an endeavour and recognise that, even as international legal scholars, we can zero in on non-legal phenomena without feeling a need to label them law’.

By way of a synthesis, Andrea Bianchi (Chapter 9) offers a possible way out from a ‘light’ constructivist perspective. The normative outcomes of IN-LAW have no distinct legal structure from treaties. Both could be seen as different points on a spectrum of commitment. Both types of agreements, so to speak, affect States’ incentives, because both affect the relevant payoffs. The conglomerate of such heterogeneous regulatory forms is part of one very variegated but recognisably ‘global’ administrative space. This, however, is not all that new; and also not that important. Rather than asking what is it that IN-LAW does, we should focus on the question of what is it that we do with IN-LAW.

What we do with IN-LAW can be measured by its impact. In the first contribution to Part III (Impact of IN-LAW), Jan Klabbers (Chapter 10) starts at the other end: accountability requires some yardstick, and in the conduct of global affairs the most obvious yardstick is that of international law. The author discusses the position of international courts and tribunals in respect of IN-LAW instruments. In doing so, the Chapter empirically tests the plausibility of what is termed ‘presumptive law’, the argument being that in international affairs, emanations that are of normative significance and that are based on some form of consent by the relevant actors, must be presumed to be legally binding, if only because the alternative (non-bindingness) makes no sense. Klabbers tests this assumption on the basis of case law of the International Court of Justice, complemented by some references to decisions of the European Union’s courts and the non-compliance procedure set up under the Kyoto Protocol.

In the subsequent contribution, Mark Pollack and Gregory Shaffer (Chapter 11) note that IN-LAW has not replaced formal lawmaking, but exists alongside it, with multiple, overlapping formal and informal procedures often addressing the same substantive issues in world affairs. This implies that, in studying the impact of IN-LAW, the interaction between formal and informal law should be taken into account. The authors raise two sets of questions. First, why would States choose to address any given issue in a formal or an informal lawmaking setting – and why might they do both simultaneously? Second, once two or more formal and informal lawmaking processes are underway, how do formal and informal law and lawmaking interact in practice?

In his contribution to Part III, Yane Svetiev (Chapter 12), evaluates the impact of transnational regulatory networks on the basis of a case study on the International Competition Network (ICN), an extensive but highly informal network, which was set up particularly since States could not agree on a formal legal antitrust regime. The author assesses whether we can nevertheless observe the emergence of alternative norm-enforcement mechanisms and the formalisation of certain tools of learning or knowledge transfer. If anything, Svetiev reminds us of the limits of IN-LAW and the need, in particular subject areas, for more formal commitments if cooperation is to be effective.

What Congress Should Take From Hamdan

by Deborah Pearlstein

The D.C. Circuit’s decision overturning Salim Hamdan’s military commission conviction on the grounds that “material support for terrorism” is not a war crime under international law is significant in a host of ways. Steve Vladeck lists a few over at Lawfare. Beyond that, it strikes me that the decision offers a handful of indicators Congress might especially note. As it stands, Congress has prohibited bringing any of the Guantanamo detainees to the United States to face criminal trial before a regular Article III court. If I were joining Congress post-Hamdan, I might want to reconsider that restriction. The D.C. Circuit’s opinion – from a manifestly conservative panel of judges – is a shot across the bow of the military commissions in more ways than just the material support holding.

Here’s one example. In order to reach the question whether material support was a war crime at the time Salim Hamdan worked for Osama bin Laden pre-2001, the court first had to interpret the Military Commissions Act of 2006. This was the law Congress passed to authorize military commissions after the Supreme Court held them lacking such authorization in Hamdan’s first set of appeals. The MCA 2006 listed material support as one of the offenses triable by military commissions. So the D.C. Circuit had to ask: did Congress intend that law to apply retroactively to conduct that, like Hamdan’s, was undertaken before the MCA’s enactment? The court held that the MCA could not be read that way – because interpreting the statute that way would raise a serious constitutional question. It is (or should be) an uncontroversial application of the Ex Post Facto Clause of the U.S. Constitution that it prohibits prosecutions for actions that were not criminal at the time they were taken. The application of the Ex Post Facto Clause is especially noteworthy here because it had been something of a question whether the U.S. Constitution (other than the Suspension Clause the Supreme Court recognized guaranteed the Guantanamo Bay detainees a constitutional right to seek a writ of habeas corpus) applied to non-citizens held at Guantanamo Bay. While stopping short of answering the question of extraterritorial application directly, the D.C. Circuit’s opinion made clear that there are several ways the Constitution can constrain the operation of military commissions there. Even without recognizing that the detainees have any additional rights under the Constitution, courts can and likely will favor interpretations of the current MCA that comply with constitutional protections. Just as they would were the trials being held here in the United States.

It is too much to suggest that prosecution for some of these defendants would be completely without difficulty even in an Article III court applying regular criminal law. Did the ordinary federal statute making a domestic crime out of material support for terrorism have extraterritorial reach in 2001? Uncertain. But it is now apparent that civilian judicial review of military commissions will be at least as searching – and as attentive to constitutional concerns – as judicial review of ordinary criminal courts. Yet another way in which military commissions are neither superior to nor much different from good old fashioned Article III courts.

What Are Romney Surrogates Complaining About?

by Kevin Jon Heller

The media and blogosphere are predictably — and justifiably — abuzz about Candy Crowley pointing out that Romney was wrong when he claimed it took Obama two weeks to label the Benghazi attack an “act of terror.”  More interesting, though, is the push-back from Romney surrogates like Ed Gillespie, who said afterward that “[s]he was wrong about it, no doubt… I’ll let the American people judge for themselves in terms of the moderator and that kind of thing.”  Fortunately, it’s not difficult to judge for ourselves who was right, because we have the relevant transcripts.  First, the debate tonight (my emphasis)

PRESIDENT OBAMA: Secretary Clinton has done an extraordinary job. But she works for me. I’m the president. And I’m always responsible. And that’s why nobody is more interested in finding out exactly what happened than I did (sic).

The day after the attack, Governor, I stood in the Rose Garden, and I told the American people and the world that we are going to find out exactly what happened, that this was an act of terror


MR. ROMNEY: Yeah, I — I certainly do. I certainly do. I — I think it’s interesting the president just said something which is that on the day after the attack, he went in the Rose Garden and said that this was an act of terror. You said in the Rose Garden the day after the attack it was an act of terror. It was not a spontaneous demonstration.


MR. ROMNEY: I — I — I want to make sure we get that for the record, because it took the president 14 days before he called the attack in Benghazi an act of terror.

PRESIDENT OBAMA: Get the transcript.

MS. CROWLEY: It — he did in fact, sir.

So let me — let me call it an act of terrorism — (inaudible) —

PRESIDENT OBAMA: Can you say that a little louder, Candy? (Laughter, applause.)

MS. CROWLEY: He did call it an act of terror.

And now what Obama said in the Rose Garden the day after the attack (emphasis added):

No acts of terror will ever shake the resolve of this great nation, alter that character, or eclipse the light of the values that we stand for.  Today we mourn four more Americans who represent the very best of the United States of America.  We will not waver in our commitment to see that justice is done for this terrible act.  And make no mistake, justice will be done.

Unless one is functionally illiterate, this is a clear statement by President Obama that the Benghazi attack was an act of terror.  Thus: Crowley right; Romney surrogates wrong.  Point, set, match.

I’m no big fan of Obama’s reaction to the Libya attack.  But claiming that he didn’t label it an act of terror the day after the attack is just foolish.

PS. This article is typical of right-wing dishonesty about tonight’s exchange.  It claims that, with regard to the Rose Garden speech, “the legal term of ‘act of terrorism’ is never used.”  No, it wasn’t.  But Obama didn’t claim that he described the attack as an “act of terrorism,” nor did Romney claim that Obama didn’t call it an “act of terrorism.”  Both — and Crowley — referred to an “act of terror.”

PPS. Josh Rogin reminds us at that Obama also referred to the Benghazi attack as an “act of terror” the day after the Rose Garden speech, in Colorado:

“So what I want all of you to know is that we are going to bring those who killed our fellow Americans to justice. I want people around the world to hear me: To all those who would do us harm, no act of terror will go unpunished. It will not dim the light of the values that we proudly present to the rest of the world. No act of violence shakes the resolve of the United States of America.

So much for the ridiculous claim that Obama was referring to 9/11, not Benghazi, during the Rose Garden speech…

Weekday News Wrap: Wednesday, October 17, 2012

by Jessica Dorsey

Book Discussion Informal International Lawmaking: A comment by David Zaring

by David Zaring

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

Pauwelyn, Wessel, and Wouter’s excellent book, which in turn marks the fruition of a project on informal international lawmaking that they dub IN-LAW, is pretty good on the theory end of things, which is what this post will look at, and also critique. Organizationally, the editors cracked the whip creditably – each chapter is organized, features a takeaway, and follows well. But should you read it?

PWW develop both a definition and a metric for evaluating informal international lawmaking. Their defintion – figuring out whether that international phenomenon is IN-LAW or not – looks to its output, process and actors. If the output (non-treaties), process (non-diplomacy) or actors (non-states) are different from those in conventional international law then, PWW argue, you are in the world of IN-LAW. And that world includes a large number of public governance efforts ranging from technical regulation to much more political work like that done by APEC and the G20.

The metric turns on evaluating IN-LAW on two axes. The first turns on whether it is accountable, and therefore legitimate, the second on whether it is effective (and possibly legitimizable through that metric). Conceptually, it’s really quite a persuasive take. The book is an efficient blend of the descriptive and the normative. Nonetheless, some questions:

IN-LAW isn’t a bad rubric, but policing the borders of these kinds of categorization exercises is irresistible. Is it really so valuable to take heads of state exercises like APEC and the G20 and try to jam them into the same space as much more technical exercises on, for example, the Global Strategy on Diet or the Internet Engineering Task Force? PWW do that. But one is politically legitimate from its first moment. The other stakes its legitimation claims on its expertise, to say nothing of the differences in media attention, significance, and scope. Informal, yes, they both are. But I’d like to see an even better reason to group them.

This is a book written by legal scholars, and legal scholars love to talk about legitimacy. But is it such a raison d’etre if your goal is to understand and work with international law? What, for example, if IN-LAW is not legitimate? We’d still have a phenomenon worthy of description. Indeed, the efforts the authors make to legitimize IN-LAW – domestic accountability, various other metrics – is completely different from the old legitimation technique, which turned on state consent. If legitimation is your grail, why change the standards by which legitimation is set?

There is only a little of the “why now?” in this book, but why IN-LAW now? International governance has had informal antecedents for a long time, but in both economics, and especially politics, has worked through pretty formal channels for decades. Now it isn’t, and laying the development at the feet of globalization seems a little imprecise. I’ll look forward to further research on this question.

For those particularly exercised by the above, here’s an overview of the chapters in the conceptual section:

Ayelet Berman and Ramses Wessel observe that accountability in IN-LAW comes from the accountability of the constituents to it, the domestic agencies or political actors who participate in IN-LAW processes. They consider whether IN-LAW entities ought to get international legal personhood and speculate that it might not enhance accountability.

Liliana Andonova and Manfred Elsig apply a more political scientific lens to view IN-LAW as a principal-agent problem – and solution to the principal-agent problems posed by more formal international organization or diplomats.

Stefan Voigt takes an interesting look at a likely incomplete data set of United States informal agreements generated by the executive’s reporting under the Case Act. The data shows just how often the traditional foreign affairs establishment is resorting to mechanisms other than treaties – the leading Case Act informal agreement producers are the White House, the military, and the State Department. The agreements these institutions make are overwhelmingly bilateral, a fifth of which concern the wealthy west (and another fifth of which concern Latin America, oddly).

Philipp Dann and Marie Von Engelhardt compare IN-LAW to other schools designed to get at the bottom of the proliferation of non-formal international law among states; that is, the Global Administrative Law Project, which I associate with NYU and Rome, and the International Public Authority Project championed by a group in Heidelberg.

PWW again take up the legitimacy question in the conclusion to the work. They argue that legitimacy needs to be assessed beyond the metric of state consent and that IN-LAW’s claim to legitimacy substitutes a domestic legitimation project for the formalities of public international law. They argue that ideally that legitimation would involve a “thick stakeholder consensus”. They also observe that IN-LAW in particular has an outsider problem, in that many of the participants in these informal organizations are elite, hard to track, and self-absorbed in a way that has real consequences for the developing world and the less technically inclined affected by IN-LAW, but unable to police it.

All in all, the book is a pleasure, which is not always easy to achieve with an edited volume. Those with even passing interests in international institutions will benefit from contemplation of the conceptual approaches set forth here.

D.C. Circuit: Material Support for Terrorism Not a War Crime (Prior to 2001)

by Kevin Jon Heller

Apologies for interrupting the book discussion, but I wanted to flag the D.C. Circuit’s blockbuster opinion in Hamdan v. United States, which was issued today.  The D.C. Circuit has reversed the Court of Military Commission Review and held that material support for terrorism was not a war crime when Hamdan committed the acts for which he was convicted.  Here are the relevant paragraphs summarizing the opinion:

Second, consistent with Congress’s stated intent and so as to avoid a serious Ex Post Facto Clause issue, we interpret the Military Commissions Act of 2006 not to authorize retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under U.S. law at the time the conduct occurred. Therefore, Hamdan’s conviction may be affirmed only if the relevant statute that was on the books at the time of his conduct – 10 U.S.C. § 821 – encompassed material support for terrorism.

Third, when Hamdan committed the relevant conduct from 1996 to 2001, Section 821 of Title 10 provided that military commissions may try violations of the “law of war.” The “law of war” cross-referenced in that statute is the international law of war. See Quirin, 317 U.S. at 27-30, 35- 36. When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime. Indeed, the Executive Branch acknowledges that the international law of war did not – and still does not – identify material support for terrorism as a war crime. Therefore, the relevant statute at the time of Hamdan’s conduct – 10 U.S.C. § 821 – did not proscribe material support for terrorism as a war crime.

Because we read the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime under 10 U.S.C. § 821, Hamdan’s conviction for material support for terrorism cannot stand. We reverse the judgment of the Court of Military Commission Review and direct that Hamdan’s conviction for material support for terrorism be vacated.

I will have more to say once I’ve had time to digest the opinion — particularly concerning the D.C. Circuit’s unequivocal rejection (p. 27) of the idea that military commissions have jurisdiction over acts that violate the so-called “U.S. common law of war.”  But this is very good news!

Book Discussion Informal International Lawmaking: Conceptual Approaches

by Joost Pauwelyn

[Joost Pauwelyn is Professor of International Law and Co-Director of the Centre for Trade and Economic Integration, Graduate Institute of International and Development Studies in Geneva.]

The result of a two-year research project (involving over forty scholars and thirty case studies), this edited volume addresses a phenomenon we labeled “informal international lawmaking” or IN-LAW.

We chose the word “informal” as it is broad enough to capture several ideas.

IN-LAW is “informal”, first of all, in the sense that it involves “non-traditional” actors, processes and/or outputs.  Indeed, most international norms that have emerged since the late 1990s are not set out in formal treaties. They are not concluded in formal international organizations. They frequently involve actors other than formal or central state representatives. In a diversity of fields – ranging from finance (Basel Accords, Financial Stability Board, Financial Action Task Force), health (International Conference on Harmonization in respect of registration of pharmaceuticals, Global Strategy on Diet), the internet (Internet Engineering Task Force) and the environment (Copenhagen Accord on climate change) to competition (International Competition Network), security (Wassenaar Arrangement on export controls of arms, Proliferation Security Initiative), the world economy (G-20) and human rights (Kimberley Scheme on conflict diamonds, Ruggie Guiding Principles on Business and Human Rights) — international lawmaking is increasingly “informal”: It takes place in networks or loosely organized fora.  It involves a multitude of stakeholders including regulators, experts, central bankers, professional organizations, business, NGOs and other non-state actors.  It leads to guidelines, standards or best practices.

IN-LAW is “informal”, secondly, in the sense that it ostensibly falls between the cracks of domestic and international law.  It is not clear what legal regime, if any, is applicable to them.  This, in turn, leads to the third connotation of “informal”:  the sense, real or perceived, that it dispenses with or circumvents the formal strictures, controls and accountability mechanisms of formal law.  This goes to the heart of IN-LAW: Even though it may be a more effective way of solving cross-border problems, is it, ultimately, an end-run on democracy (more on this by Jan in a third post)?

Part I of the book offers conceptual approaches to IN-LAW from different perspectives: legal (Berman & Wessel), international relations (Andonova & Elsig), economic (Voigt) and comparative (Dann & von Engelhardt).

Are the international agencies and harmonization networks involved in much of IN-LAW subjects of international law?  Berman & Wessel conclude in the negative based on traditional definitions but argue that progressive accounts may lead to a different outcome.  Having legal personality may facilitate accountability.  At the same time, it is not as if formal international organizations (IOs) are models of accountability.  Accountability can be achieved by both old and new groupings and depends on actual mechanisms in place, not a black or white distinction between formal and informal networks.  Actually, many of the IN-LAW networks examined have sophisticated governance structures in place that often are more transparent and responsive than those in formal IOs.

Andonova and Elsig map IN-LAW activity, distinguishing on functional grounds between objective-setting and service provision, and do so across the regulatory cycle.  Using a principle-agent model, they discuss delegation chains, control mechanisms, agent autonomy and costs, and provide a ‘performance optimum’ for IN-LAW activity building especially on examples in the field of climate change.

Voigt discusses the benefits and costs of IN-LAW from an economic perspective focusing on transaction costs and governance structure.  He then tests a number of hypotheses using a dataset of 2289 “international agreements” entered into by the United States over a 30 years period.  He confirms, amongst other things, the move in the United States from “treaties” (to be consented to by 2/3 of US senators) to “international agreements” (adopted by simple majority in both houses) and, more recently (and more difficult to confirm), non-binding arrangements (which do not require notification under the Case Act).  His results also show that around two-thirds of all “international agreements” are concerned with only three policy areas: the military, science and technology, and aid; and that around 40 per cent of all agreements are concluded by a non-traditional actor on the US side, i.e., an actor other than the President or the Secretary of State.

Dann & von Engelhardt compare the IN-LAW project to Global Administrative Law and the Heidelberg Project on the exercise of international public authority.  All three try to grapple with “the substantial extension of inter- and transnational cooperation beyond the traditional forms of international law”.

What we hope this book adds to this broader debate is threefold:

  • an in-depth analysis of the reasons why IN-LAW has emerged and is on the rise (sociologically, strategically, and normatively)
  • an analysis of practical legal questions flowing from IN-LAW (is it law, does it have legal effects, do networks have legal personality, how does informal law interact with formal law, and what does IN-LAW mean for the discipline of international law?);
  • a conceptual framework to assess and improve the accountability of IN-LAW focusing on both international and, in particular, domestic mechanisms, looking not only at “managerial” solutions but also political oversight and judicial review options, and building on lessons learnt from private regulation, domestic law and EU law which face similar problems.

Our bottom-line is more optimistic than where we started:  An in-depth examination of the IN-LAW networks we looked at convinced us that IN-LAW may actually be more adapted to the challenges of our society and, on top of that, also be more transparent and ultimately more accountable than many parts of traditional international law.  That said, continuing vigilance is required in both cases.

Book Discussion: Informal International Lawmaking

by An Hertogen

Over the next three days we are bringing you a discussion of a brand new book, edited by Joost Pauwelyn (Graduate Institute of International and Development Studies, Geneva), Ramses Wessel (University of Twente, The Netherlands) and Jan Wouters (University of Leuven, Belgium), on Informal International Lawmaking, published by Oxford University Press. Here is the abstract provided by the publisher:

Many international norms that have emerged in recent years are not set out in formal treaties. They are not concluded in formal international organizations. They frequently involve actors other than formal state representatives. In the realm of finance, health, security, or the environment, international lawmaking is increasingly ‘informal’: It takes place in networks or loosely organized fora; it involves a multitude of stakeholders including regulators, experts, professional organizations and other non-state actors; it leads to guidelines, standards or best practices. This book critically assesses the concept of informal international lawmaking, its legal nature, and impact at the national and international level. It examines whether it is on the rise, as is often claimed, and if so, what the implications of this are. It addresses what actors are involved in its creation, the processes utilized, and the informal output produced.

The editors will discuss and summarize their finding in three parts. Today, Joost Pauwelyn will introduce the conceptual approaches of their research and their conclusions. Tomorrow, Ramses Wessel will discuss the legal nature and impact of informal international lawmaking, and on Thursday, Jan Wouters will discuss accountability and domestic implementation and elaboration of informal international lawmaking. Comments will be provided by David Zaring, Christopher Brummer, Tai-Heng Cheng and Paul Schiff Berman, and hopefully also by you, our readers!

Finally, we are delighted that Oxford University Press has decided to offer our readers the opportunity to purchase the book at a reduced price, which you can claim by clicking on the ad on the right.

Weekday News Wrap: Tuesday, October 16, 2012

by Jessica Dorsey

Don’t Cry for the World’s Greatest Sovereign Deadbeat

by Julian Ku

Argentina is, to put it bluntly, one of the world’s greatest sovereign deadbeats, defaulting on its sovereign bonds more than once as well as bearing the distinction of being the world’s number one respondent in ICSID arbitration claims (or at least close to number one).  Last week, the ongoing struggle between foreign creditors and Argentina found a new flashpoint as investors brought an action in Ghana to attach ARA Libertad, an Argentina government naval training ship that was on a goodwill tour of West Africa.

Argentina had defaulted on its sovereign bonds in 2002 and various investors who did not accept Argentina’s settlement of those debts (which involved a 70% “haircut”)  have been seeking to collect on those debts ever since, especially in litigation occurring in the U.S. and the U.K.  So far, however, investors have failed to collect much money, even though a U.S. court has granted summary judgment holding Argentina liable for more than $280 million (with lots of interest accruing).

The Ghana litigation is the latest round in this ongoing struggle to collect on this judgment. The commercial court in Accra has refused Argentina’s effort to lift an injunction preventing ARA Libertad from leaving Ghana, holding that Argentina’s bonds waived applicable sovereign immunity defenses. Indeed, most courts seem to have agreed that  Argentina has indeed waived its immunity defenses. Here is an excerpt of their waiver, as described in a recent U.S. Court of Appeals for the Second Circuit decision: (E.M. Ltd. V. Republic of Argentina (2d Cir. Aug. 20, 2012)

To the extent the Republic [of Argentina] or any of its revenues, assets or properties shall be entitled … to any immunity from suit, … from attachment prior to judgment, … from execution of a judgment or from any other legal or judicial process or remedy, … the Republic has irrevocably agreed not to claim and has irrevocably waived such immunity to the fullest extent permitted by the laws of such jurisdiction…

Of course, this waiver does not necessarily mean that all of Argentina’s assets can be seized or attached.  In U.S. litigation, courts have held that this waiver allows U.S. courts to attach Argentina state assets that are used for a commercial activity.  (NML Capital v. Argentina, 680 F.3d 254 (2d Cir. 2012)).  If such an approach is followed in Ghana, I am not sure whether the foreign investors would be able to prevail since they would have to prove that the ARA Libertad is being used for a commercial as opposed to a naval activity.

On the other hand, Ghana law could very well be more favorable to the creditors than U.S. law.  It certainly sounds like that is the case given this report of the arguments in the Ghana court. Perhaps sensing it has a losing legal argument, Argentina has begun a full-court diplomatic press on Ghana, even enlisting Chile to help out.

If Ghanian law allows a waiver of attachment to extend to all sovereign property, then it seems only fair that this case should be allowed to proceed regardless of what Argentine or Chilean diplomats say. I realize that the foreign creditors here are “vulture” investors who purchased the bonds from the original bondholders at a steep discount, but I don’t think that excuses Argentina from its undoubted legal liability.  Even if the ARA Libertad is not properly the subject of attachment, I can’t understand why folks continue to excuse Argentina’s deadbeat behavior.  Argentina plainly has the money to pay the judgment (the just expropriated their largest oil company, after all), and it is obligated to do so as a result of its own commitments. So why cry for Argentina?

Orwellian Quote of the Day

by Kevin Jon Heller

From the government brief arguing that the media and witnesses in the 9/11 trial should not be permitted to hear the defendants describe being tortured by the US government:

“Each of the accused is in the unique position of having had access to classified intelligence sources and methods,” the prosecution says in court papers. “The government, like the defense, must protect that classified information from disclosure.”

The government is right about one thing — the 9/11 defendants are indeed in a “unique position” to know how the government tortures people.  That’s what happens when you’re the victims of said torture.  Something tells me, though, that the defendants would’ve been more than happy not to have had “access” to those interrogation techniques…

Weekday News Wrap: Monday, October 15, 2012

by Jessica Dorsey

Upcoming Events: October 14, 2012

by Jessica Dorsey

Upcoming Events

Calls for Papers

  • The Human Rights Centre in Practice and the Institute of Advanced Study at the University of Warwick have issued a call for papers for a workshop on Strategies for realising social economic rights in practice: Multi-disciplinary experiences from early career researchers. The call for papers is here.
  • The Melbourne Journal of International Law invites submissions for its next volume. The deadline for volume 14 number 1 (June 2013) is Jan. 13, 2013. The deadline for 14(2) (Nov. 2013) is July 1, 2013. More details can be found on the journal’s website.
  • The Faculty of Law of the University of Ljubljana has issued a call for papers for a conference on Responsibility to Protect in Theory and Practice, taking place April 11-12, 2013. Here’s the call for papers.
  • Vol. 5, Issue No. 1 of the Goettingen Journal of International Law will include a focus on the law and politics of indigenous peoples in international law. Indigenous peoples received increasing public and scholarly attention over the last decades. It has been a unique journey from the colonial history to the beginning of their political presence in the United Nations since the 1970s to the UN Declaration on the Rights of Indigenous Peoples in 2007. The UN’s International Year for the World’s Indigenous Peoples in 1993 as well as the following decades of the world’s indigenous peoples from 1995 to 2004 and 2006 to 2015 prove the ongoing need to attend to indigenous peoples’ interests. Today, discourses of indigenous peoples rights and their claim for self-determination are found beyond International Human Rights law: topics such as intellectual property rights, control over the exploitation of natural resources, the protection of traditional knowledge and traditional cultural expressions are on the agenda. Underlying all is the constant debate about a definition and the implementation of indigenous peoples’ rights beyond the Americas, particularly in Asia and Africa. In order to shine a light on the legal and political problems indigenous peoples are facing, we call for authors to submit papers on the topic. The submission deadline is 1 March 2013. For more information contact us at info [at] gojil [dot] eu.
  • The journal Humanity has issued a call for papers for a conference on The New International Economic Order and the Global Interregnum of the 1970s, happening in the fall of 2013. More information about the call for papers can be found here.
  • The Francis Lieber Prize is awarded annually by the American Society of International Law’s Lieber Society on the Law of Armed Conflict to the authors of publications which the judges consider to be outstanding in the field of law and armed conflict. Both monographs and articles (including chapters in books of essays) are eligible for consideration, as the prize is awarded to the best submission in each of these two categories.

    Criteria: Any work in the English language published during 2012 or whose publication is imminent at the time of submission may be nominated for this prize. The re-submission of works which have already been considered for this prize is not allowed. Entries may address such topics as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.

    Age Limit
    : Competitors must be 35 years old or younger at the time of submission. They need not be members of the American Society of International Law. Multi-authored works may be submitted if all the authors are eligible to enter the competition. Should a multi-authored submission win the competition, the cash component of the prize shall be divided, pro rata, between the authors. Submissions from outside the United States are welcomed.

    : Submissions, including a letter or message of nomination, must be received by 21 January 2013. Three copies of books must be submitted. The electronic submission of articles is encouraged. Authors may submit their own work. Any work not already published must be accompanied by documentation indicating that it has been accepted for publication. All submissions must include contact data (e‑mail, fax, phone, address). The Prize Committee will acknowledge receipt of the submission by e‑mail.

    Printed submissions must be sent to:
    Professor Iain Scobbie
    Department of Law
    School of Oriental and African Studies
    Thornhaugh Street
    Russell Square
    London WC1H 0XG
    United Kingdom

    Electronic submissions must be sent to:
    is17 [at] soas [dot] ac [dot] uk

    Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.

    Prize: The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prizes consist of $500, a certificate of recognition, and a year’s membership of the American Society of International Law. The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in March 2013.

Last week’s announcements can be found here. If you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Juris, please contact us.

Weekend Roundup: October 6 -12, 2012

by An Hertogen

This week on Opinio Juris, Eric Posner’s Slate article about the legality of US drone strikes in Pakistan attracted the attention of Julian Ku and Kevin Jon Heller. Julian wondered whether Koh’s “conversion” on the issue will serve as a shield against international arguments about the illegality of the strikes. Kevin in turn expressed hope that Posner’s rejection of the “unwilling or unable” test will stop the spread of this standard from the US into non-US opinio juris.

Kevin reflected, twice, on how history tends to repeat itself, drawing parallels between the definition of combatant in the Vietnam War and for present day ‘signature strikes’, and about the use of the ‘water cure‘ during the war in the Philippines (which was however found to constitute torture in later reviews).  A picture of that water cure was posted on a new blog, called Geographical Imaginations, which Kevin welcomed to the blogosphere.

Duncan Hollis flagged that the case of Carol Anne Bond is back on the US Supreme Court’s radar screen following an application for certiorari and, if accepted, may provide an opportunity to revisit Missouri v. Holland.

We also provided a platform this week to the Leiden Journal of International law, for a symposium on its latest issue. A first article discussed was the editorial by Jean d’Aspremont who lamented the diffused power of interpretative power in international law and the resulting ‘wordfare’ about naming. Comments were provided by Francesco Messineo and Michael Kearney. Jean’s response is here.

A second article, by Jean Galbraith, assessed to what extent good deeds are taken into account in sentencing in international criminal law. Meg deGuzman and Mark Drumbl provided commentary, to which Jean replied here.

Finally, as every week we provided you with a list of upcoming events and with our weekday news wraps.

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

Weekday News Wrap: Friday, October 12, 2012

by Jessica Dorsey

Everything Old Is New Again II

by Kevin Jon Heller

At his new blog, Derek Gregory posts the following photo, which shows American soldiers applying the “water cure” during the war in the Phillippines, which lasted from 1899-1902:

Of course, not everything old is new again.  Five Army officers were convicted by courts-martial for using the “water cure” during the Phillippine War, with one reviewing authority unequivocally describing the interrogation method as torture.  Why the Army looked backward instead of forward has been lost in the annals of time.

Weekday News Wrap: Thursday, October 11, 2012

by Jessica Dorsey

Welcome to the Blogosphere, Geographical Imaginations!

by Kevin Jon Heller

I’m sorry I didn’t discover it until he linked to me, but Derek Gregory — the Peter Wall Distinguished Professor and Professor of Geography at the University of British Columbia — has recently started a blog entitled Geographical Imaginations: War, Space, and Security. Gregory is one of the great political geographers of his or any generation; I can’t recommend the book from which the blog gets its name highly enough.  Fortunately, the blog promises to be just as good, with recent posts ranging from emergency cinema to the history of bombing to teaching the arts at military academies.

I’ve added Geographical Imaginations to my RSS reader.  You should, too!

LJIL Symposium Vol 25-3: Good Deeds of International Defendants: A Response

by Jean Galbraith

[Jean Galbraith is Assistant Professor at Rutgers-Camden School of Law]

This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.

I want to thank Opinio Juris and the Leiden Journal of International Law for putting together this symposium.  I am especially grateful to Professor Dov Jacobs for organizing this session and to Professors Mark Drumbl and Meg deGuzman for their thoughtful comments about my article.

Some years back, I noticed how frequently international criminal defendants argued that they deserved credit for help they had given members of the other side during the conflict.  Almost every ICTR defendant claimed that he had helped protect one or more Tutsis, and ICTY defendants asserted all manner of humanitarian acts.  Most of these claims seemed dubious in their veracity or trivial relative to the defendants’ crimes, but a few left me wondering whether those defendants really belonged among the worst of the worst.  These observations led to this article, which has both a structural and a substantive component.

Structurally, I look at how the ICTY and ICTR have dealt with evidence of frequent use of defendants’ “good deeds” in sentencing.  The tribunals have dealt with this evidence in ad hoc fashion, with trial chambers taking a variety of cursory approaches and with little guidance from the Appeals Chamber.  This in and of itself is suggestive of how international criminal tribunals allocate their efforts.  Where inconsistencies in substantive international criminal law tend to get thoroughly examined and resolved, other kinds of issues – especially in sentencing – often slip through the cracks.  This may be especially true of issues that are, as Professor Drumbl puts it, sui generis to international criminal law:  it is harder for courts to recognize these as systematic issues in the first place.

Substantively, I consider how defendants’ good deeds should affect the sentences they receive.  This is a hard question.  There’s no consensus among domestic jurisdictions about how much or how little to weigh good acts at sentencing.  When confronted with conflicting domestic approaches, the ICTY and ICTR have often focused on picking among them.  I argue, however, that the tribunals can avoid doing so here and instead derive their approach from the unique features of international criminal law.  Specifically, I argue that, as a doctrinal or functional matter, international crimes typically arise out of conflicts between groups — and are considered to be international crimes worthy of the attention of the international community in part because of this quality.  Because of this, I suggest that good deeds by defendants aimed at those on the other side of the conflict should mitigate in part (though only in part) the appropriate level of retribution at sentencing, with the degree of mitigation to depend on the relative magnitude of the defendant’s crimes and good deeds.  I also argue that, depending on motive, a defendant’s good deeds might also serve as evidence of rehabilitable character.

Professors Drumbl and deGuzman direct most of their comments to my substantive argument.  Professor deGuzman questions my overall emphasis on retributivist reasoning and also notes concerns about some particular points.  Professor Drumbl is sympathetic to my overall argument but urges me to revisit or expand my argument on five specific issues.  I can’t do full justice to their points, which reflect careful scholarly engagement with my article, but here are some brief responses.

Continue Reading…

LJIL Symposium Vol 25-3: Good Deeds of International Defendants: Grace, Goodness, Greed: Saving While Killing

by Mark Drumbl

[Mark A. Drumbl is Class of 1975 Alumni Professor of Law & Director of the Transnational Law Institute, Washington and Lee University School of Law]

This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.

International criminal law reclines upon simple binaries: good/evil – for instance – as well as authority/helplessness and perpetrator/victim. Victims, however, can victimize. And, correlatively, perpetrators can both kill and save at the same time. Perpetrators may do so selflessly at great risk to themselves or selfishly at great benefit to themselves. Or they may do so impulsively – perhaps with no discernible motive at all. In Roman Polanski’s The Pianist, Itzhak Heller, a Jewish ghetto police guard, suddenly pulls the protagonist Władysław Szpilman out of a line of detainees forced to board a train to Treblinka. Heller, derided for having badly beat up Jews, risks death to save Szpilman – but only Szpilman, who himself is far from heroic – from death.  The scene ends. The audience is left hanging in the characters’ “grey zone”. Why did Heller do that? And why Szpilman?

The erraticism of human nature unsettles the reductive parsimony of the courtroom. It is tough enough to convict human rights abusers for their inhumanity. Now, the law has to recognize their glimmers of humanity, as well, and make sense of these dissident facts. Assuredly, tout comprendre, c’est tout pardonner; but perhaps, also, tout considérer, ça pardonne également.

Professor Galbraith’s important article explores how international criminal law (ICL) grapples with the abuser who also saves the lives of others.  She does so through an examination of the place of “good deeds” in the sentencing practice of the ad hoc tribunals. Galbraith understands “good deeds” to signify acts of humanitarian behavior undertaken by the convict, presumably in the time-frame covered by the indictment, towards individuals on the “other side,” notably, individuals who are not the specific victims of the convict’s crimes.

Galbraith’s research demonstrates that the ICTY and ICTR consider good deeds (a.k.a “selective assistance”) in mitigation of sentence, albeit in a manner that is inconsistent within the tribunals themselves and also inconsistent as between the two tribunals. Galbraith is concerned with this incoherence. In response, she builds a normative argument in favor of considering good deeds in mitigation. She roots her argument in a retributive understanding that – regardless of motive –good deeds undertaken toward members of the other side ought to count. Hers is therefore an objective, effects-based analysis. For Galbraith, obligation does not matter either: in other words, respecting customary international law requirements also constitutes a good deed. Regardless of pre-existing duty, or subjective motive, “a defendant who has done good deeds towards those on the other side of the conflict merits less retribution, from a collective perspective, than a comparable defendant without such good deeds.”  The less selective the assistance, to be sure, the more it should count.

Galbraith’s article is a valuable contribution to sentencing, which chronically presents as one of ICL’s most under-theorized aspects. It does not surprise me that judicial treatment of good deeds as mitigating circumstances remains unpredictable and desultory.  Galbraith’s development of a workable test is to be applauded. In my book Atrocity, Punishment, and International Law, I chided ICL for its excessive dependence on the principles of ordinary municipal criminal law – which I had described as “borrowed stilts.” Galbraith’s push to ground a theory of good deeds in the specifics of collective atrocity crimes is a refreshing bid to develop a sui generis penology for ICL.

Five aspects of Galbraith’s project, nevertheless, uncork broader questions.

Continue Reading…

LJIL Symposium Vol 25-3: Good Deeds of International Defendants: A Comment by Margaret deGuzman

by Margaret deGuzman

[Meg deGuzman is Associate Professor of Law, Temple University]

This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.

Thanks to the Leiden Journal of International Law and to Opinio Juris for inviting me to contribute to this discussion of Jean Galbraith’s excellent article.  Jean has identified an important issue about which the current literature on international sentencing is largely silent.  In her characteristically clear and insightful prose, Jean demonstrates that the ICTY and ICTR have failed to develop a coherent approach to the role that a defendant’s good deeds play in sentencing decisions.  This is problematic for several reasons.  Jean’s focus is largely on the possibility of unequal treatment of defendants although she also mentions the inherent value of doctrinal clarity and the potential impact on victims.  But sentencing inconsistencies can also have deleterious effects on reconciliation in communities recovering from atrocities and can undermine global confidence in international justice.  Jean’s article is thus an important contribution to a growing literature that attempts to bring theoretical and doctrinal clarity to sentencing in international criminal law.

The most important debate in the literature is, of course, between scholars who advocate a largely retributive approach to sentencing and those would prefer that judges aim to achieve good consequences.  Although Jean includes a brief discussion of deterrence and rehabilitation, her article is largely focused on retribution as the primary goal of international sentencing.  While she doesn’t discuss it explicitly, her analysis assumes that international judges should aim to give those convicted of international crimes the sentences they deserve.  That is, the quantum of punishment should be determined largely according to the defendant’s desert rather than with a view to achieving beneficial consequences.  According to Jean, judges should consider a defendant’s good deeds in deciding how much punishment is deserved, at least when those deeds benefited the group that was harmed by the defendant’s crimes.  Indeed, judges should reduce a defendant’s sentence roughly according to the magnitude of the effects of the defendant’s good deeds on the group compared to the effects of his or her crimes.

While I agree with Jean’s conclusion that judges should take account of good deeds because they reduce desert, I have several questions about how she reaches that conclusion.  First, Jean’s version of retributive theory relies on the notion that retribution is “for” someone.  In the case of international crimes, Jean believes retribution is for the victims but also for the group to which the victims belong.  Because international crimes are usually perpetrated against groups, good deeds that benefit those groups mitigate international crimes.  This understanding of retribution strikes me as a rather utilitarian.  To Kant, punishing those who deserve it is inherently important.  Indeed, it is required.  Such punishment is not “for” anyone as illustrated by his famous proclamation that a society dispersing to the four corners of the earth should first execute its last criminal.

Jean’s assertion that retribution in international criminal law is “for” the targeted group and individual victims suggests that if a defendant succeeded in exterminating the entire group no retribution would be appropriate.  Moreover, not all individuals and groups want retribution.  In such cases should international courts refrain from punishment?  American retributivists expressed shock at the 21-year sentence recently awarded to Norwegian mass murderer Anders Behring Breivik.  Brevik’s crimes were large scale (77 victims) and were committed against a group – young political activists.  In fact, the prosecutor considered charging Breivik with crimes against humanity.  But Norway’s system is based on restorative rather than retributive principles and there has apparently been considerable satisfaction with the sentence in Norway, including among victims.  When international tribunals address crimes against groups that prioritize non-retributive sentencing goals should they still take good deeds into consideration in the way the Jean suggests?

Second, if international judges are supposed to gauge sentences according to the retribution that is due to a particular group shouldn’t they adhere to the group’s sentencing norms?  If the affected group executes murderers or sentences them to life in prison, won’t the much lower sentences that most international courts award, often for crimes involving multiple murders, fail to satisfy the group’s need for retribution?  This points to a key problem with retributive sentencing in international courts – that societies don’t agree about how much punishment is deserved for particular crimes.

Third, Jean’s discussion of the retribution that is due to affected group focuses exclusively on the harms the group suffered and the benefits the group received through the defendant’s good deeds.  Indeed, she urges judges not to reject good deeds performed for bad motives because the group’s benefit is not dependant on good motives.  Here again Jean departs from traditional retributive theory.  Desert is generally considered to be a function of both harm and culpability.  While a defendant’s good deeds may mitigate the harm to the group, when those good deeds are committed for bad motives the defendant’s desert may be unaffected.  For example, assume a defendant was engaged in killing members of a group but decided to keep one member of the group alive on the condition that the victim pay the defendant.  While the group was benefited by the decision to keep one of its members alive the defendant’s culpability is probably not reduced sufficiently to reduce his desert much.

As these comments suggest, I am skeptical of the notion international judges should aim to capture the full extent of a defendant’s culpability in allocating sentences.  My agreement with Jean’s conclusion stems instead from my belief that international judges should be careful to avoid sentencing defendants to more punishment than they deserve.  In my view, a defendant’s desert is a function of both the harm the defendant caused and his or her moral culpability, each of which can be reduced by good deeds.  Beyond their role in affecting the retributive limit on punishment, good deeds should be taken into account because of their potential consequences.  As Jean notes, good deeds can speak to a defendant’s capacity for rehabilitation and taking them into account may encourage future defendants to engage in good deeds.  Moreover, acknowledging the importance of good deeds sends a message about the value that the international community places on such conduct, which can help to shape norms around the world.

I am grateful to Jean for her important and thought-provoking contribution to the debate about the goals of international sentencing and look forward to continuing the discussion.

Weekday News Wrap: Wednesday, October 10, 2012

by Jessica Dorsey

Debating the Need to Revisit Missouri v Holland

by Duncan Hollis

I want to briefly interrupt the LJIL symposium to flag the fact that the Bond case is back on the U.S. Supreme Court’s radar screen and with it the prospect that the Court may revisit one of the most canonical cases of U.S. foreign relations law: Missouri v. Holland. The facts are a bit lurid — Carol Anne Bond discovered that her husband had impregnated a close friend, leading her to harass the friend, including the placement of caustic substances on objects the woman touched, which caused her to suffer minor burns.  Bond was indicted for violating 18 U.S.C. §229, which forbids knowing possession or use, for non-peaceful purposes, of a chemical that “can cause death, temporary incapacitation or permanent harm to humans”.  That statute was enacted to implement U.S. obligations under the Chemical Weapons Convention.

The Supremes have already considered Bond’s case once before, ruling in 2011 that the Third Circuit was wrong to deny that Bond had standing to challenge her conviction on 10th Amendment grounds and remanding the case to consider that defense.  As Peter blogged in May, the Third Circuit then upheld her conviction on the grounds that the Treaty Power afforded Congress powers to implement a treaty that it could not exercise on its own under Article I (in other words, the decision basically tracks Missouri‘s holding).  However, both the Majority and one of the concurrences specifically asked the Supreme Court to clarify Missouri‘s boundaries.

Bond has since filed a petition for writ of certiorari. Over the last several weeks, the amicus briefs have begun to arrive.  For example, the Cato Institute filed this brief urging the Court to take the case (counsel includes Nick Rosenkranz who’s spent a lot of time critiquing Holmes’ Missouri decision and/or Louis Henkin’s interpretation of it).  On the other side, Yale Law School’s Center for Global Legal Challenges has this amicus brief urging the Court not to take cert (and includes Oona Hathaway who’s spent a great deal of her time examining the treaty power’s scope from a more nationalist orientation)  The Yale brief cites my own earlier work, which suggested the Court would not re-engage with Missouri and flagged the then-little noticed phenomenon where the Executive had adopted various ways to police its own exercises of the Treaty Power, suggesting a narrower reach for Missouri than its text might suggest.

I don’t know whether my earlier prognosticating that the Court will not re-visit MIssouri still stands (I certainly didn’t envision a chemical weapons prosecution of a jilted wife when I wrote it).  But I do think the Court’s consideration of the cert question should assess all the non-judicial law-making on the treaty power front that occurred both before and after Missouri as well as the implications of that practice to establish alternative avenues to control the scope of the Treaty Power independent of any judicial safeguards of federalism.  I suspect, moreover, we’ll know soon enough if that practice is sufficient to deter (or defer) the Court’s attention from Holmes’ famous opinion.

LJIL Symposium Vol 25-3: Wording in International Law: A Response

by Jean d'Aspremont

[Jean d’Aspremont is Associate Professor of International Law, Amsterdam Centre for International Law (ACIL), University of Amsterdam and Editor-in-chief of the Leiden Journal of International Law]

This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.

Debate has always been a central medium of thought-making and, hence, knowledge-production in social sciences. This is why, albeit aware of the pitfalls of such platforms (see my EJIL:Talk! post), I initiated, with the help of Dov Jacobs, a partnership between the Leiden Journal of International Law and Opinio Juris. It is the very same rationale that propelled the observations on the wording techniques in international law that are under discussion today. Nourishing – predominantly self-reflective – debates was indeed the avowed goal of this piece to which Francesco Messineo and Michael Kearney reacted, thereby further contributing to the deliberative agenda behind it. I am thus extremely grateful to them for taking some of their very precious summer time (probably the moment of the year the most conducive to reading and thinking). I am similarly very appreciative of the fact that both authors took pains to venture into (and play with) some of the wording techniques described in this editorial, doing so with great mastery and uncontested brio.

Although deeply thankful for their effort, I bemoan the extent to which Francesco and Michael, under the – conventionally necessary – veil of disagreement, fundamentally concur with the core ideas defended in the paper. Indeed, there neither of them seem to completely deny the competitive dynamics at play in the epistemic community of international law as well as the cosmetic, eye-catching, erudition-magnifying techniques which are deployed by the members of that community in their attempts to ensure that the information they produced is received and validated as proper knowledge by their peers. This being said, the readers of this blog ought not be anxious. Voicing disagreement is congenital to expert blogging and there is amble material to bicker about. Allow me to – completely arbitrarily and out of personal convenience – pick those points I deem the most fundamental and which I – very selfishly – would enjoy elaborating on (after all, legal blogging is a structurally and emotionally selfish exercise).

Continue Reading…

LJIL Symposium Vol 25-3: Wording in International Law: A Comment

by Michael Kearney

[Michael Kearney is a lecturer in law at the University of Sussex]

Many thanks to the organisers at LJIL and Opinio Juris for the opportunity to comment on Jean’s article on Wording in International Law.

At the core of the paper is a plea that international legal scholars be alert to a tendency in contemporary scholarly production whereby the desire of authors to establish, via various negative wording strategies, their professional or personal prowess, trumps the essential requirements of the community on the whole, namely the preservation of a sense of shared social identity without which the very structure and potential of the community could fade away.

While certainly an interesting paper that has raised some significant issues worthy of further reflection, I’m not, yet, overly convinced by the underlying proposition. This is, if I understand it correctly, that there is an ongoing, deleterious competition amongst and between international legal scholars, characterised in the main by a propensity to faux-erudition dressed up with hollow aesthetics, and which, unless checked, or at the least accorded adequate consideration and attention, could culminate in the intellectual and financial marginalisation of the community of international legal scholars.

In the first instance, and what I consider to require further clarification, is the idea that we, as scholars of international law, are indeed engaged in a competition for naming. The paper’s conclusion almost suggests as much in stating that this competition may not even be ‘a proper competition in the first place’, a proposition that I would tend to adhere to though I would like to hear further on the matter. The very idea that engaging in scholarly production (and considering scholarship production while failing to touch on teaching was something I thought amiss here) is a form of competition, is something I don’t find particularly convincing (not to mention attractive).

There is no doubt perpetual competition amongst the scholarly community (and students) for research funding, internships, post-docs, lectureships, chairs, and a host of other finite resources, perhaps defining the community in many ways, but I’m unsure that such externally enforced, structural competition can properly be understood as also manifesting itself as a competition for influence through our scholarly texts. I’m ready to be swayed though, keeping in mind the tremendous volume of texts produced and the need to be recognised, cited, and acknowledged which is certainly as much professional as personal, but for now I remain unconvinced that even if such a competition does exist, that it presents a significant threat to international legal scholarship on the whole.

Following on is the characterisation of such competition as Wordfare. I wasn’t exactly overjoyed to see the use of this term. I’ve published recently on the concept of Lawfare, and while the substance of that work appears to me to have been worthwhile, the term itself, to be honest, grates. Actually the use of the term Wordfare here prompted me to finally chase down the etymology of ‘fare’. I’d assumed it was from the French faire – to do –  as in ‘to do’-war, but apparently it is rooted in ye olde English, meaning ‘to journey’, as in ‘to go’-to war. Wordfare, ‘to go’ to words, that is, the idea that scholars apply various tactics of wording in order to bolster the substance of their argument, seems from one angle to be stating the obvious insofar as we have very few additional tools with which we can easily work with. Whether this can properly be understood as evidence of a competition is doubtful.

What is compelling about this paper are the reflections and critiques on the undeniably actual existing strategies of some scholars to artificially bolster the substance of their arguments through various uncomplimentary techniques. The sub-sections such as ‘Wording and the magnifying of erudition’ are a welcome, if understated, damning of what is a quietly infuriating tendency in the literature. Quiet, I suggest, because there is certainly a community etiquette which precludes the overt ridicule or lampooning of scholarly production that is quite obviously pompous, bombastic, or self-gratifying. As an aside, given that there is so much power exercised over the community by near monopolistic, profit-driven publishing houses, perhaps this is to be expected. Going on, if there is to be a functioning community of international legal scholars then a shared etiquette is, I agree, essential. Yet one of the elements of this etiquette, as I understand it at least, is to avoid publishing overly critical reviews of scholarly texts. Simply put, if you find a piece you’ve been requested to review is of a terrible quality then the best thing to do is to have it disappear rather than to breach the received etiquette. We can easily knock judges, journalists, prosecutors, lawyers, or politicians when they fumble in producing textual material but it’s rare enough to sink our teeth into colleagues. This was an issue I grappled with in writing a review of a book on counter-terrorism legislation back in 2007 (review published in 2011). I concluded thus: ‘In effect, given that this book is peppered with such quantities of both factual and typographical errors, not to mention an absence of any overall direction, its very publication is puzzling and should strike a note of warning for the quality of academic work in this area.’ The book at hand was genuinely shoddy, and my motivation in breaching etiquette (perhaps readied also by deep opposition to the author’s political bent?) was essentially to warn students before they forked out the whopping £55 being asked by the publisher.

Reading Jean’s paper I felt that the underlying proposition could have been more easily asserted and clarified had he provided examples for each of the offences discussed, and linked them directly to the Wordfare phenomenon. That would doubtless have constituted a particularly insensitive breach of etiquette, and while it would no doubt have been entertaining – assuming one’s own work wasn’t being pilloried – as it stands the paper will encourage each of us to reflect critically on our own scholarly products, and it thereby serves a valuable purpose. It certainly prompted me to reflect on various texts in which I may have engaged in some of the Wordfare techniques and there is a valuable contribution here to an examination of the nature of our community as manifested in the structure and form of the texts we produce.

My final comment is to assert that while scholars should avoid the various cringeworthy offences highlighted in the paper, we should also strive to avoid the straitjacket of a standard style or orthodoxy (not that Jean is advocating any such thing, though the suggestion that we must ‘preserve the linguistic consensus’ may too closely border on such an idea). While the idea of the social identity of the community of international legal scholars is at the heart of this paper, I’m not quite sure that it actually exists in quite as formal a manner as suggested, nor that there is any necessity for such. To be sure an individual may satisfy all the criteria Jean correctly notes as defining membership of the community, but perhaps many of us feel that while we have one foot in, another is firmly out; perhaps the second foot is entrenched elsewhere in the broader interpretative community of international law, and perhaps it is very much elsewhere. Such hybridity can, I suggest, be encouraged, while avoiding the ills of merely shouting past each other in an effort to fuel SSRN tallies through dreaming up fame-inducing neologisms and idioms. Allowance can be made for concepts and wording that properly serves a purpose in promoting or clarifying a substantive argument even if drawn from outside the international legal scholarship set, or even from a quite distinct branch of scholarship. This may be the case even if such wording does purposively and explicitly convey ‘the social identity of the belligerents’. (Actually, on this very point, and conscious of my own sins, may I suggest we avoid unnecessarily using military terms!)

Given that I found this paper to prompt critical self-reflection, I will finish with a comment on a personal example of ‘naming’ that probably falls right within the characterisation of Wordfare that Jean is raising. In an April 2012 comment piece for Opinio Juris on the decision of the ICC Prosecutor on the Palestinian declaration, I needed to use the term ‘politricks’ to describe the actions of the Palestinian Authority. Pompous, fame-enhancing, dismissive of the possibility of a shared social identity, or just self-gratifying? All legitimate responses such ‘naming’ may have prompted in my peers, yet it was genuinely informed by my social identity as influenced by the social and political semantics, the language that is, that drives the consciousness inherent in reggae. I’m not being asked to apologise for this, but I’m glad that in addition to the formal products we place in the journals and books which constitute the backbone of international legal scholarship, the development of the blogs have in a singular manner confirmed and promoted a form of communal social identity that in many ways depends on contrasting styles and formats, even if occasionally raising a cacophonous brouhaha, and for now at least I don’t think we need worry about our expensive debating club being dragged down by the occasional wording or aesthetical offence.

LJIL Symposium Vol 25-3: Wording in International Law: Not really a ‘hen house’: dynamics of competition amidst fears of oblivion

by Francesco Messineo

[Francesco Messineo is a Lecturer in Law, Kent Law School, Canterbury (UK).] 

This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.

Unless international lawyers get their act together and agree on the basic meaning of the key terms in their discipline, says Jean d’Aspremont, observers (and, crucially, funders) may suddenly realize that the profession is really no more than an ‘expensive debating club’ – often funded by the taxpayer – ‘in which everyone talks past each other’. Thanks also to blogs such as Opinio Juris, access to the debating chamber is no longer subject to hierarchical initiation rituals: anyone with a higher degree in (international) law is at least ostensibly welcome to join in. The ensuing competition for credibility is rife, says d’Aspremont. An ever‑increasing mass of ‘young’ and often ‘arrogant’ scholars employ words as their tools in a ‘hen house’ of ‘violent’ conflict aimed at finding new ‘names’ for things which often already have perfectly usable ones. Because of the death of Aristotelian logic and other ‘foundational’ philosophies,  the main aim of the profession has become the establishing of one’s persuasiveness and authority at the expense of the nearest colleague, often in pursuit of one’s ‘unquenchable thirst for recognition’. In order to perpetuate the illusion of a fruitful debate, the meaning of words must constantly change – there is no ‘epistemic peace’, as d’Aspremont puts it. Forget great systems of conceptual beauty collectively built by cohesive schools of thought: we want tenure, and possibly glory, too. In d’Aspremont’s view, international legal academia has become an endless game where the angst of oblivion often trumps logic and courtesy. Furthermore, this constant renaming of the institutions of international law is fashionable but pointless. As in the Leopard, everything must change constantly so that nothing actually changes.

The preceding paragraph is meant to be an example of what d’Aspremont chastises. I have deliberately simplified and exaggerated his argument. I have taken his words out of context and reduced an eloquent set of arguments to what may be perceived as a rant (which his article is not). To make things worse, I have then added a perfectly unnecessary reference to a work of literary fiction which may be obscure to some of my readers, dropping it there as if everyone should know what the Leopard is (D’Aspremont would diagnose this somewhere in the spectrum between a pointless display of ‘erudition’ and a ‘strategy’ of mild ‘intimidation’). After having created this aesthetically and rhetorically pleasing straw-man, I should now proceed to mercilessly criticise his argument – a short critique is, after all, what the kind editors of LJIL and Opinio Juris asked me to write.  Continue Reading…

LJIL Symposium Vol 25-3: Introduction

by dov jacobs

[Dov Jacobs is the Senior Editor for Expert Blogging at the Leiden Journal of International Law and Assistant Professor of International Law at Leiden University]

This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.

Over the next few days, we are happy to bring you a discussion of two articles published in Volume 25-3 of the Leiden Journal of International Law, the first one a timely self-reflection on the practices of the community of international law and the second one an analysis of the “good deeds” of international criminal defendants and how they are and should be taken into account at the sentencing phase.

The first discussion has as a starting point the editorial by Jean d’Aspremont entitled Wording in International Law. In his piece, the editor in chief of the Leiden Journal invites us to “self-reflect” on the practices of an epistemic community (international lawyers, more specifically academics) which, among other things, engages in a competition for naming through “wordfare” techniques meant to artificially create singularity in order to advance careers, and all this in the context where the rationalist foundations of international law have been weakened and even shattered. Francesco Messineo, from the University of Kent and Michael Kearney, from the University of Sussex, have kindly accepted to comment on the editorial and engage with some of the difficult questions that were raised by it, such as identity of the epistemic community, the gender inequality in the field of international law, how negative this academic competition is and, relatedly, whether the semantic techniques that are used cannot be useful and necessary in a number of situations.

If one is to engage fully with the editorial, two additional points would need to be discussed, and I invite readers of this blog to react to them as well. First of all, methodologically, one can wonder if the epistemic community of international scholars can really be studied independently of other communities of international law, such as judges, practitioners and activists. Indeed, there is such porosity between those different communities, that the “wordfare” techniques rightly identified by Jean d’Aspremont have an influence way beyond the traditional output of academic scholarship. Professors become Judges and activists, and vice versa, when they do not combine all those functions at once. As a result, this competition necessarily overflows into international courtrooms, judgments and diplomatic circles and can therefore have considerably more far-reaching results than those pointed out in the editorial.

Second, and maybe more fundamentally, what is at the heart of the piece, beyond the social identity of scholars, is the definition of legal science and, to put it a little dramatically, the existence of Law itself. In this sense, I would not necessarily adhere to the shared enthusiasm of all comments, at various degrees, with the effects of Critical Legal Studies on the discipline and Jean d’Aspremont’s provocative conclusion that “we are all Crits”. Of course, the self-reflection that was brought by the Crits is welcome, but one has to wonder if there is not a point beyond which, if we all become Crits, we will cease to be lawyers because we will have sawn the branch we sit on. While this might be a welcome result for some, it is one that should be the conscious choice of the epistemic community of international law, rather than an unintended consequence of blind faith in CLS, a little bit like the ironic quip by French poet Sully Prudhomme: “we are standing on the edge of the cliff, let us walk forward with determination”.

The second article under discussion is entitled The Good Deeds of International Criminal Defendants, by Jean Galbraith. In this piece, the author identifies the inconsistencies in the case law of international tribunals, notably the ICTY and the ICTR, in considering the “good deeds” of defendants as mitigating circumstances in the sentencing phase, and proposes a test to be followed in the future in order to make consideration of such acts more coherent in the future. Mark Drumbl, from Washington and Lee University, and Margaret deGuzman, from Temple University, have kindly accepted to bring their own expertise to the discussion and comment on the article. They rightly point out the importance of this article in an academic scholarship where issues of sentencing are often not given the attention they deserve. At the heart of the discussion is the particular nature of international criminal justice, which deals with mass atrocities on a large scale and most of the time in an institutional setting far removed from the situation under consideration. In this context, by what standards is “just desert” to be determined? How can any deed compensate for the heinous nature of the crimes committed, considered to be those that “shock the conscience of humanity”, as proclaimed by the Preamble to the ICC Statute? Who is to decide what a defendant deserves, his victims or his international accusers? As a result, what lurks in the background is not so much the specificity of ICL, but its inadequacy in dealing with the situations it claims to be able to address. Indeed, if we are going to ask what can mitigate such crimes, one is necessarily led to ask what can be deemed adequate punishment for them in the first place or whether individual responsibility is a satisfactory tool at all to apprehend the profoundly collective nature of the acts?

The articles therefore raise fundamental issues and we hope the articles, and the comments that have been kindly submitted, will spark the debate they deserve. As usual, as you eagerly wait for the next symposium, we invite you to discover the other articles of the current volume of the Leiden Journal, which includes a symposium on the uses of Foucault in international law and an hommage to the late Antonio Cassese in the form of a fictional posthumous interview compiled by Guido Acquaviva.

Weekday News Wrap: Tuesday, October 9, 2012

by Jessica Dorsey

Eric Posner Rejects the “Unwilling or Unable” Test!

by Kevin Jon Heller

Julian beat me to Eric Posner’s new Slate article on the legality of drone strikes.  I don’t agree with everything in it, but I think it’s notable that Posner — echoing his sometime co-author Jack Goldsmith — rejects the idea that international law permits self-defense against a non-state actor whenever a state is “unable or unwilling” to prevent the NSA from using its territory as a base for attacks.  That rejection emerges clearly in the following passages:

The U.N. Charter permits countries to use military force abroad only with the approval of the U.N. Security Council, in self-defense, or with the permission of the country in which military force is to be used. The U.N. Security Council never authorized the drone war in Pakistan. Self-defense, traditionally defined to mean the use of force against an “imminent” armed attack by a nation-state, does not apply either, because no one thinks that Pakistan plans to invade the United States. That leaves consent as the only possible legal theory.

In other cases, including current drone operations in Pakistan, the United States has invoked a new idea of the “unable or unwilling” country, one that outside powers can invade because that country cannot prevent terrorists located on its territory from launching attacks across its borders.

The “coerced consent” doctrine, the “unable and unwilling” doctrine, and the exception for humanitarian intervention all whittle away at whatever part of the law on United Nations use of force blocks U.S. goals. If the United States ever decides to invade Iran in order to prevent it from acquiring nuclear weapons, expect a new doctrine to take shape, perhaps one that emphasizes the unique dangers of nuclear weapons and Iran’s declared hostility toward a nearby country.

I couldn’t agree more with Posner’s rejection of the “unwilling or unable” test.  I’ve been watching with equal parts bemusement and concern as that standard spreads in the United States — with little or no effort on the part of those who defend it, of course, to identify the (non-US) opinio juris and state practice that ostensibly support it.  The “unwilling or unable” test has even found its way into the Stanford/NYU report on drone strikes in Pakistan, which is otherwise so critical of US policy.  Here is one of its statements about the jus ad bellum:

Further, it must be shown that the host state is “unwilling or unable to take [the appropriate steps against the non-state group].” Pakistan has at times failed to act decisively against non-state groups, raising questions about its ability and willingness to take necessary steps.

The quoted language, not surprisingly, is from Ashley Deeks’ article on the “unwilling or unable” test — an article that, as I have pointed out before, not only fails to establish that the test has achieved customary status, but actually admits (in a footnote) that it has not done so:

I have found no cases in which states clearly assert that they follow the test out of a sense of legal obligation (i.e., the opinio juris aspect of custom), nor have I located cases in which states have rejected the test.    Even if one concludes that the rule does not rise to the level of custom, however, the rule makes frequent appearances in state practice and therefore is the appropriate starting point from which to determine how the norm should develop.

That footnote, of course, is never mentioned in articles and reports that uncritically adopt the “unwilling or unable” test — thereby further facilitating its spread.  I’d like to think that Posner’s rejection of the test may help stem the tide.  Unfortunately, as Posner himself explains, nothing — especially not international law — gets in the way of legal theories that enhance the US’s ability to use force abroad.

Eric Posner Calls Out Harold Koh on the Legality of Drone Strikes Under International Law

by Julian Ku

In his latest Slate article,  Professor Eric Posner highlights (for non-specialist readers) the  questionable international legal foundation of the Obama Administration’s “drone war on terror” in Pakistan, Yemen, and elsewhere (e.g. Libya). The whole idea that the U.S. can infer Pakistan’s consent to the strikes due to Pakistan’s refusal to object to CIA faxes is not terribly persuasive.  I am more attracted to the “unwilling or unable” theory of the drone strikes, but I recognize it is far from flawless either.

Posner goes on to question whether international law can ever really regulate the U.S. government’s use of force, and suggests that Harold Koh may now realize it is a weak constraint at best.

But don’t blame government lawyers like Koh for devising this theory. International law lacks the resources for constraining the U.S. government. Koh knows this now if he did not before. Since he built his academic career on the claim that international law can and should be used to control nation-states and harshly criticized the Bush administration for violating international law, this must have been a bitter pill to swallow. (Though he has swallowed so many bitter pills that perhaps he has lost his sense of taste: The man who told the Senate at the end of the Bush administration that the United States must “unambiguously reassert our historic commitments to human rights and the rule of law as a major source of our moral authority” has backed away from his earlier opposition to expansive war powers, targeted killing, military commissions, and military detention.)

Posner’s general take on these questions can be found in his book, The Perils of Global Legalism.  In it, he argues that most international law doesn’t affect state behavior very much (if at all) and actions by government officials based on the assumption that international law does restrain state behavior is both naive and dangerous.

I am not sure if I completely agree with Posner here, although I concede he can certainly marshal lots of evidence in the use-of-force area.  But I think his focus on Koh’s “conversion” or “awakening” to the limits of international law is interesting.  If we get a President Romney (which looks somewhat more likely than it did just a week ago), we can expect to hear his legal advisers citing Koh on a variety of legal questions  (“Even the liberal transnationalist Harold Koh thinks a drone strike/cyberwarfare retaliation/Guantanamo is legal…”).  The interesting question is whether Koh’s endorsement of the legality of such policies will serve as a shield from international law critics like NGOs, academics, etc.  I doubt it, but it is always worth a try.

Weekday News Wrap: Monday, October 8, 2012

by Jessica Dorsey

Upcoming Events: October 7, 2012

by An Hertogen

Upcoming Events

  • On October 11, 2012, the American Society of International Law is organizing a panel on Developing your Faculty Credentials: An International Law Perspective at Tillar House in Washington DC. More information, and free registration, can be found here.
  • On October 25, 2012, the NYU Journal of International Law and Politics is organizing the eighteenth annual Herbert Rubin And Justice Rose Luttan Rubin International Law Symposium, entitled Tug of War: The Tension between Regulation and International Cooperation. The symposium will examine how U.S. courts balance our regulatory interest against the need for international cooperation in the context of transnational litigation. A tentative agenda can be found here, and you can register here.

Calls for Papers

  • The University of Amsterdam’s Center for International Law has issued a call for papers for a two-day seminar on Interfaces between International and National Legal Orders: An International Rule of Law Perspective, taking place March 14-15, 2013. Proposals of 500 words or fewer are due by November 1, 2012.
  • The Polish Yearbook of International Law is seeking articles for its next volume, to be published in June 2013. Submissions should not exceed 15,000 words (including footnotes). Authors must include an abstract not exceeding 250 words. The deadline for submissions is January 31, 2013. Manuscripts are assessed on a rolling basis. Requests for expedited review will be considered in case of a pending acceptance for publication from another journal. More detailed information, including the PYIL style sheet is available here.
  • The 2nd Conference of the Postgraduate and Early Professionals/Academics Network of the Society of International Economic Law (PEPA/SIEL) will take place in Göttingen (Germany) on January 25-26, 2013. Postgraduate (Masters/PhD) students and early career academics studying or working in the field of international economic law are invited to submit a 400 words abstract and their CV to pepa2013conference [at] gmail [dot] com by October 31, 2012. Successful applicants will be notified by November 30, 2012; after which they are expected to submit a conference paper (no more than 4000 words) by December 31, 2012. At the conference, one or more senior practitioner or academic will comment on each paper, followed by a general discussion. Registration closes on December 7, 2012, and needs to be done online. As a participant the 1st PEPA/SIEL conference, I strongly recommend anyone working in the field of international economic law to consider submitting an abstract for an invaluable opportunity to discuss and test your ideas!
  • Postgraduate students with an interest in human rights are invited to submit abstracts for the Human Rights Research Students’ Conference organized by the Human Rights Consortium at the School of Advanced Studies, University of London, on November 20, 2012. Abstracts of up to 300-350 words should be e-mailed to HRC [at] sas [dot] ac [dot] uk by October 26, 2012.

Last week’s announcements can be found here. If you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Juris, please contact us.

Signature Strikes: Everything Old Is New Again

by Kevin Jon Heller

I’m currently writing an article for the Journal of International Criminal Justice on the legality of signature drone strikes under international humanitarian law and international human rights law.  I will link to the article when it’s done (two weeks or so), but I couldn’t resist posting the following quotes — the first from the New York Times, describing the Obama administration’s definition of “combatant” for purposes of signature strikes; the second by Lt. William Calley, whose orders led to the My Lai massacre during the Vietnam War:

NYT: “Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent. Counterterrorism officials insist this approach is one of simple logic: people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good.”

Lt. Calley: “If those people weren’t all VC then prove it to me. Show me that someone helped us and fought the VC. Show me that someone wanted us: one example only! I didn’t see any… Our task force commander’s staff said it’s a VC area and everyone there was a VC or a VC sympathizer. And that’s because he just isn’t young enough or old enough to do anything but sympathize.”

Bad ideas, unfortunately, never go out of style.

Weekend Roundup: September 29 – October 5, 2012

by An Hertogen

This week, there was no escaping the second oral argument in the Kiobel case that kicked off the US Supreme Court’s term on Monday. If you are not familiar with this case, it concerns the enigmatic Alien Tort Statute which, as part of the Judiciary Act 1789, holds that “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” SCOTUSblog provides more background on the case here and here.

First of the mark here at Opinio Juris was Deborah Pearlstein posting on the early consensus about how oral argument was going. Peter Spiro posted a link to the transcript of the oral argument, and argued that things did not go that well for Shell, but stopped short of making predictions about the final outcome. Roger Alford predicted that the Supreme Court will limit application of the ATS to claims by foreign plaintiffs against foreign corporations for conduct on foreign soil. In a later post, Deborah discussed three possible readings of an exchange between Justice Scalia and the US Solicitor General on whether the Court should give deference to the views of the State Department.

During our special Kiobel Roundtable, Curtis Bradley argued that the presumption against extraterritorial application is a better fit than the stronger presumption against extraterritoriality to limit the scope of the ATS. In his post, William Dodge also pointed out that suggestions by respondents to apply the presumption against extraterritoriality did not appear to gain traction with the justices. He also touched on the questions of the availability of alternative fora and of corporate liability for human rights violations. Chimène Keitner focused on transitory torts, rejected Shell’s claims that federal courts should not consider any claims arising outside the US and discussed how much deference should be given to the political branches to avoid offending foreign countries.

A few contributors raised the issue of the purpose of the ATS. Julian Ku expressed disappointment that the parties did not offer a persuasive theory of the purpose of the ATS. Meir Feder asked whether the ATS addresses national or universal interests. In a similar vein, Beth Stephens discussed how to define a coherent limit on ATS cases, and argued that the devil is in the details. Thomas Lee argued that the real purpose of the ATS was about protecting safe conducts and not about piracy or ambassadorial infringements, as is often assumed.

Doug Cassel argued that the Supreme Court should only require the prior exhaustion of foreign and international remedies “in ATS cases brought exclusively under universal jurisdiction, and not in ATS suits against US companies”. He added that any exhaustion requirement should respect the exceptions recognized by international law.

Aside from our Kiobel posts, Kevin wrote about the passing of historian Eric Hobsbawn. Ken Anderson reposted part of Gary Bass’ review of John Witt’s book “Lincoln’s Code“, discussed Aryeh Neier’s call for a no-fly zone over Syria, and examined the differences between the targeted killing of Anwar al-Awlaki and the landmark case of Reid v CovertJulian discussed reports that the US is preparing a retaliatory military strike into Libya over the killing of Ambassador Stevens, and posted about the refusal by the Japanese PM to submit the Senkaku/Diaoyu dispute to the ICJ. Finally, Duncan Hollis posted about a recent decision by the Nevada Supreme Court to implement the ICJ’s Avena judgment, despite there being no requirement to do so, as the US Supreme Court held in Medellin v. Texas.

As always, we also brought you a list of upcoming events and our weekday news wraps.

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

Avena Lives! Supreme Court of Nevada Cites ICJ in Granting Gutierrez Evidentiary Hearing

by Duncan Hollis

On September 19, the Supreme Court of Nevada ordered a new evidentiary hearing for Mexican national Carlos Gutierrez on his ability to overcome the State’s procedural bars to further consideration of his death sentence.  I’ve posted a copy of the court’s order here.

Gutierrez was one of 51 Mexican nationals whose convictions and sentences were the subject of the ICJ’s Avena decision.  Under that opinion, the ICJ found that the United States had violated its obligations under Article 36(1)(b) of the Vienna Convention on Consular Relations by failing to notify Gutierrez of his right to consular assistance.  The opinion directed the United States to provide “by means of its own choosing” judicial review and consideration of Gutierrez’s conviction and sentence to ascertain whether the failure to provide such consular assistance was actually prejudicial to Gutierrez’s conviction or sentence.  As regular readers know, the Supreme Court found in Medellin v. Texas that neither the ICJ’s Avena opinion nor President Bush’s memo directing the States to implement it were directly enforceable federal law that would trump State procedural default rules; a view affirmed in 2011 in Leal Garcia v. Texas.

But — and here’s the interesting part — the Nevada Supreme Court emphasized that nothing in the earlier Supreme Court opinions precluded it from implementing Avena.   Consistent with Justice Stevens’ call in his Medellin concurring opinion that States implement Avena themselves, the Gutierrez court reasoned that “..while, without an implementing mandate from Congress, state procedural default rules do not have to yield to Avena, they may yield, if actual prejudice can be shown.”  And, unlike Medellin or Leal Garcia, this case had a pretty striking ground for finding prejudice — the Court’s interpreter in Gutierrez’s death penalty hearing, Carlos Miguel Gonzalez, later pled guilty to perjury, having entirely made up his credentials as an interpreter.  Moreover, the Nevada Supreme Court found evidence that this lack of credentials may have impacted Gutierrez’s hearing, with transcript reports showing Gutierrez’s interpreter having exchanges with the State’s interpreter over the accuracy of Gonzalez’s interpretations.

The opinion closes with a dramatic appeal to reciprocity.  The Court explains its decision to grant Gutierrez an evidentiary hearing by claiming that

if a non-Spanish speaking U.S. citizen were detained in Mexico on serious criminal charges, the American consulate was not notified, and the interpreter who translated from English into Spanish at the trial for the Spanish-speaking judges was later convicted of having falsified his credentials, we would expect Mexico, on order of the ICJ, to review the reliability of the proceedings and the extent to which, if at all, timely notice to the American consulate might have regularized them.”

Thus, even with Congress having done zero to implement it, Avena seems to have some legs after all.  This in turn suggests that as the remaining Avena defendants see their cases wind through the various state criminal justice systems, we should expect a mixed set of reactions.  I’ve no doubt some courts will continue to simply cite Medellin and decline to consider, let alone enforce, the Avena order. But, Gutierrez, like the Torres case before it, suggests that some State courts can be persuaded by arguments describing U.S. interests in complying with international obligations alongside indications of prejudice in order to obtain the judicial review and reconsideration that Avena directed the United States to provide.

Hat Tip: Ron Bettauer and ASIL’s ILIB

New Article on Reid v. Covert, and My Question re Extraterritoriality and the Constitution

by Kenneth Anderson

Over at Lawfare, I’ve flagged a fine new article in the Military Law Review, “The Case of the Murdering Wives: Reid v. Covert and the Complicated Question of Civilians and Courts-Martial,” by Captain Brittany Warren (Vol. 212. 2012, p. 133; link goes to The article goes into fascinating detail about the actual facts and circumstances of Reid v. Covert, as well as a discussion of historical practices dating back to 17th century Britain and the application of the Articles of War to “camp followers.”  It then comes back to the present to discuss the circumstances of civilians in courts-martial in US law.

Let me add a comment that goes far afield of Captain Warren’s article, but one raised in my mind by the detailed discussion she offers of the “murdering wives case” in its own context and time.  (I don’t want to suggest that my discussion reflects her views in that article, so I’ve decided to make it a separate post here at OJ.)   Reid v. Covert is a case sometimes raised in a different context – one for which it is not really dead-on, however, though sometimes referenced in relation to it.  Reid is the question of the extraterritorial application of the US Constitution, and whether a civilian US citizen lawfully present on a US military base in time of peace, with a SOFA in operation (ie, 1950s Germany), is entitled to a regular US civilian trial with all Constitutional protections in a capital murder case rather than trial in military court under the UCMJ – answer, yes. But, if that’s Reid, what about a US citizen who has fled the US to places not controlled in law or fact by the US, and is engaged in violent operations against the US from abroad as part of a terrorist group – is that US citizen nonetheless entitled to trial in a regular civilian court, or at least some form of judicial due process, and at least an implication that this US citizen can’t be lethally targeted in the way that a non-citizen lawful target could be? Continue Reading…

Cybersecurity and the Laws of War Teleforum

by Julian Ku

I wanted to flag for readers one more international law related Federalist Society Teleforum, which will be starting shortly. On the call, which starts at 1 p.m. Eastern at  888-752-3232,  Professor Jeremy Rabkin of George Mason University School of Law and Paul Rosenzweig will discuss the U.S. State Department Legal Advisor Harold Koh’s recent address on cyberwarfare.  Please feel free to call in and ask questions!

Weekday News Wrap: Friday, October 5, 2012

by Jessica Dorsey

Aryeh Neier Calls for Syria No-Fly Zone

by Kenneth Anderson

Aryeh Neier, recently retired president of the Open Society Institute (and former head of Human Rights Watch and the ACLU), has an opinion piece in Project Ricochet this week calling for a no-fly zone over Syria. He calls for it to be imposed by a regional force and NATO.  The US would not lead the effort, though presumably it would participate via NATO – while providing backup, both material and political, another exercise in deliberately “leading from behind.”  He is cautious about the US intervening militarily directly, and frames the dilemma this way:

There are many good reasons not to intervene militarily. For one thing, it would be impossible to do so under the auspices of the United Nations, owing to Russian and Chinese obstructionism in the Security Council. There is also America’s understandable reluctance to become involved in yet another war in an Islamic country, as well as the impossibility of knowing what kind of regime might emerge if and when Assad is overthrown.  Yet it also seems impossible to stand by while the daily bloodbath continues. The situation in Syria feels more and more like what we witnessed in Bosnia 20 years ago. Then, as now, the international community’s main response for an extended period was to provide humanitarian assistance to the conflict’s growing number of victims.

Interestingly, Neier argues that an important reason to establish a no-fly zone now against the regime and in favor of its victims (but also collaterally in favor of the rebels) is that

Assad’s loyalists, especially members of the minority Alawite sect, must fear that they would be massacred if his regime fell.  At some point, the international community may have to intervene to prevent or mitigate such a massacre. Its credibility in doing so, and therefore its likelihood of success, would be far greater if it were to intervene now to establish a no-fly zone to protect civilians in the opposition neighborhoods of Syria’s cities.


Weekday News Wrap: Thursday, October 4, 2012

by Jessica Dorsey

Kiobel Roundtable: The ATS Was About Protecting Safe-Conducts

by Thomas Lee

[Thomas H. Lee is Leitner Professor of Law at Fordham University School of Law. He is currently a visiting professor of law at Harvard.]

I agree with Meir that piracy is a “red herring”  and am writing to elaborate on his thoughtful remarks.  The thing that troubles me most about how the Court is thinking about this case is that it continues to accept the Sosa statement that the ATS is 2/3 about piracy and ambassadorial infringements, but not thinking at all about the 1/3 nebulous “safe conduct” violation which I have argued was the real purpose of the ATS.  106 Columbia Law Rev. 830 (2006).  Other scholars have agreed in the past that the ATS was likely not about ambassadorial infringements or piracy (e.g., Anne-Marie Slaughter in 1989 re ambassadorial infringements; Curt Bradley re piracy in 2002).

This conclusion becomes crystal clear when the Judiciary Act’s jurisdictional provisions are read as a unit.  Regardless whether holistic reading makes sense for the Constitution or other statutes, it surely makes sense for the First Judiciary Act, which was largely the work of Oliver Ellsworth and enacted by the first session of the First Congress to set up the federal courts for the first time.  Ambassadors can sue in the Supreme Court, with concurrent jurisdiction in state court under section 13 of the Judiciary Act (pages 851-64 of my article explain why), and piracy falls within the admiralty and maritime jurisdiction of the district courts under clause 2 of section 9 of the Judiciary Act, two clauses before the ATS which is the fourth clause in section 9.  People often seem to forget that the ATS is not a free-standing statute but just a clause in a section of a much bigger, iconic enactment.

The admiralty and maritime grant in clause 2 was exclusive with the exception of the saving to suitors clause to state courts; the ATS grant in clause 4 is concurrent with state and the federal circuits.  The admiralty jurisdiction would have been territorially limited because most actions (called “libels”) were in rem, but if a pirate ship were brought to a US port, it could be condemned and its captain and crew tried for piracy.  This is all explained in pages 866-71 of my article, and the tension with Bradford’s construction of the ATS in 1795 is explained at pages 889 to 895.

In my view, all of this is explicit from a careful reading of the Judiciary  Act.  It then raises the question of what exactly the ATS is about, and the safe-conduct is all that is left.  My article was an attempt to understand what exactly the late eighteenth century safe conduct was at international law, how it was understood by the First Congress, and what it means today.  My conclusion for what it means today was that the ATS was enacted “to redress common law torts brought by friendly or neutral aliens [thus, the tort was in violation of the law of nations or a treaty of the United States” promising safety] committed by private actors — including aliens– with a United States sovereign nexus, not for international law violations committed by anyone anywhere.”

Reminder: Federalist Society Teleforum on Kiobel

by Julian Ku

Reminder: Chimene Keitner, Eugene Kontorovich, and I will be discussing the Kiobel argument on a Federalist Society Teleforum starting at 3 p.m. Eastern. Just call: 888-752-3232 to listen.

Kiobel Roundtable: The Devil in the Details

by Beth Stephens

[Beth Stephens is Professor of Law at Rutgers, the State University of New Jersey-Camden.]

Monday’s oral argument in Kiobel v. Royal Dutch Petroleum, Inc. focused on the search for a coherent limit to the reach of the Alien Tort Statute. The need for some limit is uncontroversial: even the most ardent advocates of human rights accountability agree that not all cases involving human rights violations, no matter how egregious, belong in U.S. courts.

The devil, as always, is in the details.

Would a holding that the ATS does not apply to claims arising in foreign countries constitute a coherent limit? The questions at the first Kiobel argument in February and the order for reargument issued the following week suggested that a majority of the Court was considering such a holding. At Monday’s reargument, however, this time with the benefit of full briefing on that issue, the questions indicated that the Justices had recognized that this apparently simple solution would pose its own problems, and that other doctrines might respond to some or all of their concerns.

A categorical bar on ATS claims arising in the territory of foreign states would require rejecting thirty years of ATS litigation, including the holding of Filártiga v. Peña-Irala. As Justice Kagan explained, it would also require abandoning the reasoning of the Court’s 2004 decision in Sosa v. Alvarez-Machain. Justice Scalia pointed out that applying the presumption against extraterritoriality would bar claims arising on the high seas as well as those arising in the territory of a foreign state, despite Sosa’s indication that the ATS was intended to apply to piracy, an international crime that occurs at sea. Sosa also relied on a 1794 opinion by U.S. Attorney General William Bradford, which stated that the statute applied to international law violations committed in foreign countries. The questions and comments at Monday’s argument suggest that the limit proposed in the order for reargument is neither coherent nor supported by statutory text, history, or precedent.

A categorical bar would be flawed for another fundamental reason: it would be an over-inclusive response to concerns about interference in the affairs of foreign states. International human rights norms both prohibit certain violent conduct and…

Kiobel Roundtable: Getting Exhaustion Right

by Doug Cassel

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

If Alien Tort Statute suits to redress human rights violations committed abroad are upheld in Kiobel, the Supreme Court is likely to require that plaintiffs first exhaust their foreign and international remedies (or show good cause for not doing so).  If so, it is important that the Supreme Court get right the contours of the exhaustion doctrine under international law.  The Court should require exhaustion only in ATS cases brought exclusively under universal jurisdiction, and not in ATS suits against US companies.  Even in purely universal jurisdiction cases, the Court should respect exceptions to exhaustion recognized by international law.

An exhaustion requirement seems likely.  In the Kiobel oral argument on the extraterritorial reach of the ATS, three Justices likely to support extraterritorial reach — Ginsburg, Kagan and Sotomayor — asked questions sympathetic to an exhaustion requirement (Tss. at 8, 13-15).  In response, Paul Hoffman, plaintiffs’ counsel, appeared open to an exhaustion requirement (Tss. at 13-14).  No Justice or counsel spoke against an exhaustion requirement; even two Justices generally hostile to the plaintiffs – Alito and Scalia – seemed friendly to an exhaustion requirement (in the event extraterritorial ATS suits are allowed) (Tss. at 15, 31).

The most substantial brief on the exhaustion issue, favorably cited by Justice Sotomayor (Tss. at 12-13), is the amicus brief of the European Commission on behalf of the European Union.  The EU brief is generally excellent.  It correctly limits an exhaustion requirement to ATS cases whose exclusive jurisdictional basis under international law is universal jurisdiction (part A below).

However, its articulation of the exceptions to exhaustion in universal jurisdiction cases is imprecise (Part B below).  There is a resulting risk that the Court may saddle plaintiffs with a vague and overbroad exhaustion requirement.  This would undermine the very purpose of universal civil jurisdiction – to ensure that grave international crimes do not go unredressed.

Continue Reading…

Weekday News Wrap: Wednesday, October 3, 2012

by Jessica Dorsey

Into the Deference Weeds in Kiobel

by Deborah Pearlstein

Rather than dwelling further on any prediction of what kind of opinion the Court is likely to produce following oral arguments in Kiobel (FWIW, I thought arguments went better for plaintiffs than I’d anticipated), I wanted to highlight what I thought was a particularly interesting exchange on whether the State Department’s views on the ATS were entitled to some deference by the Court.

Background first. I’d read the U.S. Government’s latest brief as arguing for something like a case-by-case approach on the question of which extraterritorial ATS cases might be appropriate for federal adjudication. In the U.S. view, Filartiga (involving Paraguayan parties disputing the legality of conduct in Paraguay) presents a paradigmatic example of the kind of ATS suit that would be permissible, while Kiobel (involving non-U.S. multinational parties disputing the legality of conduct in Nigeria) presents a contrary example. The distinction between the cases, on this view, seems to turn on a combination of factors, including, but not limited to, the defendant’s presence in the United States (favoring jurisdiction in Filartiga), and the nature of the claim of aiding and abetting a foreign sovereign (disfavoring jurisdiction in Kiobel). But central to the justification for all such distinctions, according to the argument, is the interest of the U.S. government in avoiding conflicts in foreign relations, and the superiority of the executive over the courts in any given case in identifying what those foreign relations conflicts might be. (Again FWIW, I didn’t have the impression from yesterday’s arguments that any justice much liked this position.)

So here’s the exchange that struck me (between the U.S. Solicitor General and Justice Scalia). Continue Reading…

Japanese PM Confirms: No ICJ for Senkakus/Diaoyu Dispute with China

by Julian Ku

The Japanese Prime Minister made clear in remarks yesterday that he has no intention of proposing international arbitration to settle or mediate the ongoing Senkaku/Diaoyu Island dispute with China.  Indeed, China’s government-controlled English language paper, noted the inconsistency of Japan’s position given its willingness to send its similar dispute with South Korea to the ICJ. (A point I noted here).

Noda also said on Monday that Japan has no intention to use the International Court of Justice to solve tensions with China over islands in the East China Sea. “We are not considering using the ICJ”, and there is no doubt the islands are an integral part of Japanese territory both internationally and historically, he said.

However, China rejected Japan’s claim of sovereignty over the islands which are known as the Diaoyu Dao and its affiliated islets in China. China said it enjoys indisputable sovereignty over the islands. Noda’s government has been embroiled in territorial spats with China and South Korea in recent months, but his remarks suggest that Japan will deal with the two neighbors in a different manner.

In August, the Japanese government formally proposed to South Korea that the two countries jointly seek a resolution at the ICJ in The Hague to their dispute over a group of sparsely inhabited islands controlled by Seoul but claimed by Tokyo.

Does this suggest China might be open to such an arrangement? Or are they just needling him?

Kiobel Roundtable: Protecting National Interests or Universal Ones?

by Meir Feder

[Meir Feder heads up the appeals and issues practice at the New York office of Jones Day.]

For anyone looking to yesterday’s oral argument to predict how the Court will resolve Kiobel—a dubious exercise in any event, as last Term’s health care case should remind us— yesterday’s argument was a mess. The Justices seemed skeptical of the positions of both parties (and, for that matter, equally skeptical of the Solicitor General’s middle ground), but no obvious alternative approach distinguished itself, either.

Much of the confusion doubtless stems from the unusual nature of the problem. It is difficult, perhaps impossible, to draw definitive answers about modern human rights litigation from the ATS itself or from the specific intentions of its enacters, given the fundamental changes—in the nature and scope of international law, and in prevalent understandings of the nature of the common law and the limited common law powers of federal courts—in the two-plus centuries since the ATS was enacted. And the Court’s one opinion on the ATS, Sosa v. Alvarez-Machain, is opaque on many of the key questions—announcing that any cause of action attendant to the ATS is a discretionary creation of federal common law, but (other than ruling out claims based on norms that lack definite content or widespread acceptance) providing little direction as to what factors should guide that discretion. As a result, it is not even clear how a Justice should go about answering the question in Kiobel, which makes the apparent lack of consensus at argument (and the difficulty in drawing conclusions from the questioning) unsurprising.

Nonetheless, there are at least two aspects of the oral argument that I think are worth highlighting. . .

U.S. Prepares for Retaliatory Military Strike Into Libya

by Julian Ku

As I suggested earlier, the President has ample legal authority to strike back at those responsible for the deaths of U.S. Ambassador to Libya Christopher Stevens and three other Americans in Libya. The NYT reports that the Pentagon is preparing to exercise this legal authority:

The American military’s top-secret Joint Special Operations Command is preparing detailed information that could be used to kill or capture some of the militants suspected in the attack last month in Libya that killed Ambassador J. Christopher Stevens and three other Americans, senior military and counterterrorism officials said on Tuesday.

There are a variety of international legal objections that might be raised to such a strike that depends on whether the Libyan government would consent to a strike. If no consent is forthcoming, there is the interesting problem of whether retaliation is a justified act of self-defense under the UN Charter’s Article 51.  But putting aside these legal issues, I would not be surprised to see a strike go forward, even during election season (maybe especially during the U.S. election season).

Kiobel Roundtable: What is the Purpose of the ATS? Should That Matter?

by Julian Ku

I have very much enjoyed our guest commentary on Kiobel extraterritoriality issue and can’t resist adding my two cents.  In short, I am pretty dissatisfied with the arguments made by the petitioners, respondents and the United States government. I am not dissatisfied because the arguments are “wrong”, but because none seem to offer a persuasive theory of the purpose of the ATS.

Kiobel Roundtable: Who’s Afraid of Transitory Torts? Thoughts on Kiobel II

by Chimene Keitner

[Chimène I. Keitner, is a Visiting Professor of Law at the USC Gould School of Law and Professor of Law, University of California Hastings College of the Law.]

Personal jurisdiction ain’t what it used to be. As Justice Ginsburg noted (Tr. at 54), in the age of Goodyear Tire, multinational corporations can’t necessarily be sued everywhere for everything. But Shell’s message at oral argument on Monday was clear: we don’t want to rely on Goodyear Tire or on any other rule that gives a U.S. judge discretion over whether or not an ATS case goes forward. We want a categorical prohibition, period.

It’s fascinating listening to judges worry about the consequences of letting judges make decisions. Some of them seem downright determined to ensure their own irrelevance. They say: listen to Congress.

In this case, Congress spoke. It didn’t say very much. But Congress said that cases brought by aliens for international law violations should be brought in federal court, not state court. Shell wants to send them back to state court (Tr. at 32).

In Ackerson v. Erie R. Co., 31 N.J.L. 309, 310-11 (1865), the New Jersey Supreme Court stated that “[i]t is, in the international code, the well established doctrine, that every nation may rightfully exercise jurisdiction over all persons within its domains, with regard to matters purely personal,” and that transitory actions “are universally founded on the supposed violation of rights, which, in contemplation of law, have no locality.” This case didn’t come up in oral argument, but the language nicely captures the idea…

Kiobel Roundtable: The Supreme Court Gropes Toward a Sensible Solution

by William S. Dodge

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus briefs of the United States in Kiobel v. Royal Dutch Petroleum Co. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

My thanks to Opinio Juris for inviting me to guest blog on the reargument in Kiobel v. Royal Dutch Petroleum Co., which I attended on Monday. As most readers likely know, the Supreme Court originally granted cert to decide whether corporations may be sued for human rights violations under the Alien Tort Statute (ATS) as natural persons may be. But after oral argument last February, the Court asked the parties to address the additional question of whether, and under what circumstances, the ATS applies to conduct in foreign countries. Because almost all claims brought under the ATS to date—including the Second Circuit’s seminal 1980 decision in Filartiga v.Pena-Irala and the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain—have involved alleged conduct abroad, the Court’s additional question raised the stakes for human rights litigation considerably.

Respondents and many of their amici urged the Court to apply the presumption against extraterritoriality to the ATS and limit causes of action exclusively to violations of international law in the United States. But that argument appeared to gain little traction with the Court on Monday. Chief Justice Roberts expressed skepticism when Respondents’ counsel Kathleen Sullivan argued that piracy on the high seas was not within the original scope of the ATS, while Justice Scalia (who wrote the Court’s most recent decision applying the presumption against extraterritoriality in Morrison v. National Australia Bank) said he did not know of any cases applying the presumption only to the territory of a foreign country and not to the high seas. Sullivan’s assertion that “[e]very single founding era precedent that stimulated the ATS or came soon in its aftermath involved international law violations alleged to have occurred on U.S. soil or in U.S. waters” was quickly rebutted by Justice Breyer, invoking Attorney General Bradford’s 1795 opinion that expressed “no doubt” that a civil suit could be brought under the ATS for violations of the law of nations in Sierra Leone.

Meanwhile, Justice Kagan offered a variation of the 1784 Marbois incident, hypothesizing that the French ambassador to Britain was attacked in London by an American citizen who sought refuge in the United States and suggesting that…

Kiobel Roundtable: The Alien Tort Statute, Kiobel, and Extraterritoriality

by Curtis Bradley

[Curtis Bradley is the William Van Alstyne Professor of Law at Duke University.]

The Alien Tort Statute (ATS) is one-sentence long, was enacted more than 200 years ago, has essentially no drafting history, and was relatively unknown before the Second Circuit’s seminal Filartiga decision in 1980.  As a result, although it is obvious that the ATS was meant to provide the federal courts with jurisdiction over certain suits brought by aliens concerning torts in violation of international law, it is difficult to discern precisely what sort of suits Congress had in mind.  Determining how such a statute should apply to modern conditions, in the light of fundamental changes in international law and in the nature of U.S. common law since the statute’s enactment, is even more challenging, to say the least.

We do know that the ATS was enacted at a time when the authority of nations to regulate conduct was thought to be highly territorial, especially with respect to the conduct of foreign citizens.  We also know that the most prominent mention of the ATS in the early years after it was enacted—in Attorney General Bradford’s 1795 opinion concerning the involvement of U.S. citizens in an attack on the British colony in Sierra Leone—involved a situation in which the United States was alleged to have international responsibility for the torts (as I discussed here).  In addition, we know that the United States would not then—and still does not—have international responsibility for torts committed by foreign citizens (or corporations) on foreign soil.  These and related considerations have led a number of scholars to conclude that the ATS was not designed for a case like Kiobel, where the United States has no responsibility for the alleged tort, and where applying the statute raises extraterritoriality concerns.

Supporters of broad ATS litigation have responded that this line of argumentation is “purposive” and improperly neglects the ATS’s plain language.  One problem with this critique is that the plain language of the ATS provides no support for any federal cause of action, let alone an extraterritorial one.  As a result, supporters of broad ATS litigation do not, in fact, rely simply on the text of the ATS.  They argue, as did the majority of the Supreme Court in Sosa v. Alvarez-Machain, that the ATS was implicitly designed to allow certain tort claims to be brought without a separate statutory cause of action, and they cite various historical materials and events in support of this hypothesis.  To address the requirement in modern doctrine of a positive law source for the cause of action, they also contend, as did the Court in Sosa, that the ATS should be construed as authorizing federal common law claims for certain torts that violate international law.  The Court in Sosa explained that it was adopting this construction in order to give effect to the “ambient law of the era” in which the ATS was enacted.  Whatever one may think about this approach to statutory construction, it is not based solely on plain language.

In any event, there is nothing improperly purposivist about applying a limiting presumption such as the presumption against extraterritoriality (which was applied in Morrison v. National Australia Bank (2010)), or the softer presumption against extraterritorial applications that would involve an “unreasonable interference with the sovereign authority of other nations” (applied in F. Hoffman-La Roche v. Empagran (2004)).  Among other things, such a presumption can prompt Congress to provide additional policy guidance.  The ATS would seem to be a prime candidate for such prompting.  After all, Congress’s intent in the ATS is obscure, and, as noted, the text does not even mention causes of action, let alone define their proper scope.  Moreover, extraterritorial application of this statute, by focusing on alleged tortious conduct by foreign governments and their supporters abroad, has a high potential for creating foreign relations friction. A number of the briefs filed in Kiobel emphasize this concern, including the latest brief filed by the Executive Branch, a brief filed by the United Kingdom and The Netherlands, and a brief filed by former State Department Legal Advisers.

It has been argued that an extraterritorial limiting presumption should not apply to the ATS because…

Weekday News Wrap: Tuesday, October 2, 2012

by Jessica Dorsey

Kiobel’s Reargument: Get Ready for the Live Commentary (Updated)

by Julian Ku

I am still digesting the transcript of the Kiobel reargument today, although I can say that nothing in the argument today has changed my view that this brief (which both Ken and I signed) represents the best approach to resolving the case.  I will say, however,  that nothing in the argument suggested that any member of the Court is considering this approach either.

In any event, Opinio Juris will be hosting a number of guest posts on the case in the next couple of days from some of the leading commentators in the U.S. on the Alien Tort Statute.  Two of those leading commentators, Professors Chimène Keitner and Eugene Kontorovich, will join me live for a Federalist Society Teleforum on Wednesday, October 3 at 3 p.m. Eastern Standard Time in the U.S.  We’ll chat about the case, and take calls from listeners.  (For those few Opinio Juris readers out there who aren’t dues-paying Federalist Society members, you’ll have to either sign up or wait for the podcast.) Whoops! I am now informed that the Federalist Society has generously agreed to make the live teleforum available to Opinio Juris readers, so please feel free to call in 888-752-3232 and ask questions!)

Kiobel Oral Argument: Why the ATS as We Know it is in Jeopardy

by Roger Alford

My initial impression of the Kiobel oral argument is that the Supreme Court is going to do its best to do an historical analysis of the ATS and use that history to find ways to limit its scope. It could do so by holding that the ATS does not apply extraterritorially, or that it does not apply unless there is some U.S. nexus, or that it does not apply to corporations, or that it does not apply without exhausting local remedies, or that it does not apply to certain types of conduct (such as aiding and abetting). But one way or the other, I predict that the ATS as it currently is applied by lower courts will be severely limited.

I say that by reading the tea leaves of the Justices’ votes that are up for grabs. Justice Kennedy asked, among other things, about whether there was a U.S. nexus in this case (page 4), about risks of reciprocal claims brought against U.S. corporations in foreign courts (page 5), about the risk of ATS litigation causing complications with foreign governments (page 10), and about the scope of the presumption against extraterritoriality (p. 37). Several Justices, including Chief Justice Roberts, asked about the possibility of vindicating one’s rights in another forum that has a closer connection to the events or the parties, including the defendant’s domiciliary forum (the United Kingdom or the Netherlands) or the place of injury (Nigeria). None of the swing Justices seemed interested in the concept of universal jurisdiction, except to preserve the Sosa paradigm that embraced piracy on the high seas as an actionable international law violation.

The good news for the plaintiffs is that Paul Hoffman did an exceptional job of trying to make the ATS sound unexceptional. One of his best arguments was that courts have all the tools they need to address the concerns about friction with foreign nations, including the political question doctrine, the act of state doctrine, international comity, forum non conveniens, and personal jurisdiction. In other words, these concerns about tensions with foreign nations are legitimate, but courts already have developed doctrines sensitive to those concerns. When pressed, he was even willing to make more concessions, such as the possible need to exhaust local remedies. The bad news is that the swing Justices did not appear to be buying the argument that the arrows currently in the quivers of the courts are enough to limit the reach of the ATS.

As for extraterritoriality, Hoffmann’s key argument was that the presumption against extraterritoriality is overcome where the purpose of the statute requires its extraterritorial application. The presumption, he argued, “would undermine the very purposes of the statute” which is “the best evidence that we have about what it meant in the era” (page 52). He cogently cited the Bradford opinion as an historical example of what the drafters were thinking in this regard.

To be sure, there is ample Supreme Court case law to support an argument that sometimes the purpose of a statute requires its extraterritorial application. See United States v. Bowman, Blackmer v. United States, United States v. Flores, Cook v. Tait, Browder v. United States. One way to articulate this is to say that the clear intent of Congress is expressed in drafting a statute that necessarily requires extraterritorial application. Whether or not the swing Justices will interpret the ATS in this fashion is anyone’s guess.

Kathleen Sullivan’s key argument was that the presumption against extraterritoriality required clear congressional intent, which she argued was lacking in this case. She then fumbled by trying to argue that the Court’s recognition of piracy in Sosa did not undercut this argument. She should have stuck with her argument about the purpose of the presumption against extraterritoriality—to avoid encroachment on the sovereign prerogatives of other nations to regulate conduct in their territory—and conceded the point about piracy on the high seas as falling within the scope of the ATS. Instead, she argued that pirate ships are mini-foreign countries and tried to argue that that the presumption applied even to pirate ships. It was not a fatal mistake, but it was painful to read.

Sullivan also struggled with Justice Kagan’s creative reverse Marbois question, (page 30-32) which aptly addresses the possibility that foreign tensions can arise from an American’s misconduct against a foreign national on foreign soil, just as much as an American’s misconduct on domestic soil. Sullivan argued that other remedies were available, such as extradition or state law torts for assault. That may be true, but that is also true for an American’s misconduct on domestic soil. Her argument didn’t address the critical question of why Congress believed the ATS was necessary in the first place, and why it should only apply to domestic misconduct by Americans. If concern about foreign friction is what is driving the ATS, she should have taken a page from Hoffman and conceded points that were not essential to her case, such as the possibility that the ATS applied to foreign conduct by an American non-corporate defendant. (That seemed to be Solicitor General Verrilli’s position: that the ATS should only apply where there is a clear U.S. nexus, such as misconduct by an American national on foreign soil or misconduct by a foreign national on U.S. soil.)

So I predict that the ATS as we know it will be curtailed. I don’t know exactly how it will be curtailed, but based on the oral argument today I predict that the future of foreign plaintiffs using the ATS to sue foreign corporations for conduct on foreign soil is in serious jeopardy.

Kiobel Argument Goes Badly for Shell (FWIW)

by Peter Spiro

The transcript in the Kiobel case has been posted here.

Shell counsel/former Stanford dean Kathleen Sullivan seems to have been on her heels for much of her argument time. Big sticking point on her claim that the ATS was not intended to cover piracy or a “reverse Marbois.” (No, that is not a wrestling move; it’s the counterfactual in which the famous attack of a French diplomat by an American occurs in France, not Philadelphia). See pp. 25 and following.

Paul Hoffman, on the other hand, stood his ground pretty well, allowing for the possible interposition of procedural bars to the making of Alien Tort claims (as pushed by Sotomayor). He got in an effective IG Farben analogy and even a little human rights speechifying (see p. 55). Breyer gets the award for zinger of the day: “if Hitler isn’t a pirate, who is?” (Anyone want to do the legal math on that one?)

So predictions of the ATS (extraterritorial) demise may be premature. On the other hand, recent experience demonstrates that predictions based on oral arguments are not especially reliable.

We’ll be hosting guest posts here on the Kiobel argument through the middle of this week.

Kiobel Watching

by Deborah Pearlstein

For those watching for signs of how oral arguments went in the U.S. Supreme Court in Kiobel this morning, early consensus seems to be that while a majority of the justices were plainly concerned by a reading of the universal jurisdiction statute that would give the courts the power to hear cases with no substantial connection to the United States, “a majority [also] did not seem inclined to narrow the Alien Tort Statute nearly into non-existence.” So writes the venerable Lyle Denniston over at Scotusblog. There may be quite a line-drawing exercise to come. More on the arguments here in a bit…

ATS Kiobel Post-Argument Discussion

by Kenneth Anderson

I realize this should have gone to our announcements section, but it seems well worth flagging.  As OJ readers are probably aware, the Kiobel case is being re-argued today in the Supreme Court.  Tomorrow my law school, Washington College of Law, American University, in DC, is holding a post-argument discussion with some stellar folks – Paul Hoffman (lead counsel for plaintiffs), Katie Redford (Earthrights International), John Bellinger (former DOS Legal Adviser and Arnold & Porter partner), and Andrew Grossman (Heritage Foundation).  WCL’s own Steve Vladeck will moderate.  The event will also be live-streamed.

Tuesday, October 2, 12-1:20, lunch included, and CLE credit available.  Registration required.  The flyer with online registration information is below the fold. Continue Reading…

Gary Bass Reviews John Witt’s ‘Lincoln’s Code’ in the NYT Sunday Book Review

by Kenneth Anderson

John Witt’s magisterial new book, Lincoln’s Code: The Laws of War in American History, appeared a few weeks ago, and Gary Bass has an enthusiastic review of it in yesterday’s New York Times Sunday Book Review.  I am only about half-way through it, but Bass’ enthusiasm is entirely justified – it is a fabulous book and one that I think merits attention world-wide.  Bass’ review-essay is also well worth the read:

Abraham Lincoln’s administration published a new fighting code for Union soldiers in 1863, which diffused far beyond American shores: to the Prussian Army in 1870, into the landmark Hague Convention in 1899, and even into the Geneva Conventions and the Nuremberg trials after World War II. Witt, a professor at Yale Law School, writes that it was Francis ­Lieber, the Lincoln team’s foremost wartime legal authority, who — trying to figure out how Union troops should treat Southern irregulars — came up with some of the defining features of soldiers that guided the Third Geneva Convention in 1949: wearing distinctive insignia identifying them as combatants; operating under a command structure; and following the laws of war.

“Lincoln’s Code” is both a celebratory chronicle of American lawmaking and a gruesome record of American wartime cruelty, from William Tecumseh Sherman’s rampage through Georgia and South Carolina to the Indian wars. In an effort to make sense of what animates the “world’s only military superpower” today, Witt looks backward: “From the Revolution forward, the United States’ long history of leadership in creating the laws of war stands cheek by jowl with a destructive style of warfare.”

Witt argues that Americans have been torn between “two powerful but competing ideals”: humanitarianism, which seeks to make war less awful through gentler rules; and justice, which demands victory in a righteous cause. Americans, he writes, have seen military law not just as an obstacle to effective fighting, but also “a tool for vindicating the destiny of the nation.”

Witt himself is a pragmatic type. While he admires much about the laws of armed conflict, he does so largely on the modest grounds that they can serve “as tools of practical moral judgment in moments of extreme pressure.” He is impatient both with skeptics who dismiss international law as rank hypocrisy, and with more aspirational legalists whose ideals are “so remote” from actual war-fighting that they make it “less likely . . . the laws of war will find traction in times of crisis.” He paraphrases Oliver Wendell Holmes Jr.: “The life of the laws of war has not been logic. It has been experience.”

RIP, Eric Hobsbawm (1917-2012)

by Kevin Jon Heller

I am very sad to report that the eminent British historian has passed away at 95.  He lived an amazing life, as recounted in the Guardian‘s lengthy obituary today.  Here is a snippet:

If Eric Hobsbawm had died 25 years ago, the obituaries would have described him as Britain’s most distinguished Marxist historian and would have left it more or less there. Yet by the time of his death at the age of 95, Hobsbawm had a achieved a unique position in the country’s intellectual life. In his later years Hobsbawm became arguably Britain’s most respected historian of any kind, recognised if not endorsed on the right as well as the left, and one of a tiny handful of historians of any era to enjoy genuine national and world renown.

Unlike some others, Hobsbawm achieved this wider recognition without in any major way revolting against either Marxism or Marx. In his 94th year he published How to Change the World, a vigorous defence of Marx’s continuing relevance in the aftermath of the banking collapse of 2008-10. What is more, he achieved his culminating reputation at a time when the socialist ideas and projects that animated so much of his writing for well over half a century were in historic disarray, and worse – as he himself was always unflinchingly aware.

In a profession notorious for microscopic preoccupations, few historians have ever commanded such a wide field in such detail or with such authority. To the last, Hobsbawm considered himself to be essentially a 19th-century historian, but his sense of that and other centuries was both unprecedentedly broad and unusually cosmopolitan.

I had the pleasure of taking European history with Hobsbawm when I was a graduate student at the New School for Social Research in the early 90s — when he was already in his 70s.  He was an amazing lecturer, a very nice person, and could drink his students under the table with ease.

I’ve been planning for some time to re-read Hobsbawm’s magisterial “Age” series: The Age of Revolution: 1789-1848 (1962); The Age of Capital: 1848-1875 (1975); The Age of Empire: 1875-1914 (1987); and The Age of Extremes: 1914-1991 (1994).  They are phenomenal books; I can’t recommend them highly enough.

He will be missed.

Weekday News Wrap: Monday, October 1, 2012

by Jessica Dorsey