Archive for
November, 2012

Watch: ITLOS Webcast of Argentina v. Ghana (ARA Libertad); Does UNCLOS Reach Ghana’s Internal Waters?

by Julian Ku

Today is Argentina Day here at Opinio Juris! (OK, it is Bash-Argentina Day).  In any event, it is worth highlighting that while Argentina has escaped for now a NY federal court ruling that would have forced it to pay holdout creditors next month, it is also battling Ghana at the International Tribunal for the Law of the Sea.  The request for provisional measure by Argentina and transcript of the oral arguments is here. I want to especially highlight the very impressive webcast function on the Court’s website, which provides a great chance for those of us who don’t live in Hamburg to see oral argument at ITLOS. I know I am already on the record being very skeptical of Argentina’s argument in ITLOS, but the oral presentation by Ghana’s attorney Phillippe Sands has got to make Argentina worry.  His whole argument in a nutshell: UNCLOS does not regulate a sovereign’s actions in its internal waters (e.g. port). UNCLOS does regulate some actions in a country’s territorial seas. This seems pretty solid, but I am far from a UNCLOS expert. I welcome readers’ comments.  Decision forthcoming on December 15th!

More on the End Game

by Deborah Pearlstein

Thanks to Ken for posting the link to Jeh Johnson’s important speech below, and bravo to Jeh Johnson for saying it aloud. In addition to the central passage Ken highlights, I might add this from Johnson’s speech (to reiterate, Johnson is General Counsel to the U.S. Department of Defense).

“War” must be regarded as a finite, extraordinary and unnatural state of affairs. War permits one man – if he is a “privileged belligerent,” consistent with the laws of war — to kill another. War violates the natural order of things, in which children bury their parents; in war parents bury their children. In its 12th year, we must not accept the current conflict, and all that it entails, as the “new normal.” Peace must be regarded as the norm toward which the human race continually strives.

The habit of characterizing the United States’ conflict with Al Qaeda as a war without end – of detention within that war as indefinite, of the current pace of targeting operations as something the United States will, now having embarked upon it, never abandon – is something all sides of the legal debates have done, in and out of government. Johnson’s speech should, I think, lead us all to question the habit of accepting that assumption.

DOD General Counsel Jeh C. Johnson on Conditions for the End of the Conflict

by Kenneth Anderson

Quick note further to Deborah’s post on the “end-game” of the current US counterterrorism regime.  In category of great minds think about the same things, if not precisely alike, the same day Deborah posts, Defense Department General Counsel Jeh C. Johnson gives a speech at the Oxford Union, “The Conflict Against Al Qaeda and its Affiliates: How Will It End?”  Ben Wittes has posted the text of the speech at Lawfare.  Skimming it quickly, I’d flag this in particular (I’ve left out the footnotes):

In the current conflict with al Qaeda, I can offer no prediction about when this conflict will end, or whether we are, as Winston Churchill described it, near the “beginning of the end.”  I do believe that on the present course, there will come a tipping point – a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.

At that point, we must be able to say to ourselves that our efforts should no longer be considered an “armed conflict” against al Qaeda and its associated forces; rather, a counterterrorism effort against individuals who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated with al Qaeda, for which the law enforcement and intelligence resources of our government are principally responsible, in cooperation with the international community – with our military assets available in reserve to address continuing and imminent terrorist threats.

At that point we will also need to face the question of what to do with any members of al Qaeda who still remain in U.S. military detention without a criminal conviction and sentence. In general, the military’s authority to detain ends with the “cessation of active hostilities.” For this particular conflict, all I can say today is that we should look to conventional legal principles to supply the answer, and that both our Nations faced similar challenging questions after the cessation of hostilities in World War II, and our governments delayed the release of some Nazi German prisoners of war.

For now, we must continue our efforts to disrupt, dismantle and ensure a lasting defeat of al Qaeda. Though severely degraded, al Qaeda remains a threat to the citizens of the United States, the United Kingdom and other nations. We must disrupt al Qaeda’s terrorist attack planning before it gets anywhere near our homeland or our citizens. We must counter al Qaeda in the places where it seeks to establish safe haven, and prevent it from reconstituting in others.

Searching for an End Game

by Deborah Pearlstein

If you haven’t already seen it, it’s worth taking a look at this morning’s editorial in the New York Times about the Administration’s targeted killing program. The editorial follows on a series of articles in recent weeks, including the Times’ own report that the Administration was in a scramble pre-election to codify (in some form) internal processes for deciding when to pursue a targeting operation. Sounds to me like they’ve been flies on the wall at the terrific ongoing annual review of the field conference organized by the ABA’s Standing Committee for National Security Law. (Kind of old home week for U.S. national security law practitioners and scholars.) I can’t count the number of hallway chats I’ve encountered on the topic.

The Times’ bottom line:

Mr. Obama has acknowledged the need for a “legal architecture” to be put in place “to make sure that not only am I reined in but any president’s reined in.” Yet his administration has resisted legal efforts by The Times and the American Civil Liberties Union to make public its secret legal opinions on these killings. Once the rules are completed, they should be shown to a world skeptical of countries that use deadly force without explanation.

I’d certainly agree about the importance of disclosure here, starting first and foremost with disclosure of the legal theory supporting the Administration’s use of armed force in this context. The necessity of this seems past question to me; it seems impossible to reconcile the idea of democracy with the idea of secret law. The administration’s speeches on the topic have been illuminating and commendable. But as I’ve noted before (e.g. here) some of them raise more concerns about the application of the law than they resolve.

What’s troubled me more about the recent reports – beyond the already troubling notion that it was not the program itself but the possibility that someone else might be (and someday certainly will) be pulling the trigger that drove recent formalization efforts – is the absence of any apparent strategic calculus underlying the tactical decisions about targets. What exactly is the end game here? Or even the goal? It seems evident already that the current targeting program aims not only at Al Qaeda, by which I mean the organization actually responsible for the attacks of September 11, but also at some much deeper set of loosely (how?) associated radicals drawn from the truly bottomless pool of men who wish to do the United States or our broadly defined interests harm. Is the plan simply to define what we think counts as the kind of threat of force requiring the exercise of self-defense (in the form, sometimes, of targeting)? Or is the plan to which future presidents are meant to feel bound one that includes among targets members of all of the militant groups who congeal in weak states – Yemen, Mali, Somalia, etc. etc. etc. – and adopt the franchise name “Al Qaeda”?

One can find any number of security scholars around the halls these days who insist “we can’t kill our way out of this.” With “Al Qaeda 1.0” seemingly down to its last members, it sure would be useful to know what we now think “this” is.

My Critique of Argentina’s Weak Legal Arguments in the ARA Libertad Case

by Julian Ku

I have a op-ed today providing a fuller version of my critique of Argentina’s legal arguments over the ARA Libertad.  (It’s worth noting that Argentina is actually heading toward yet another financial crisis spurred by a recent New York court decision, which I didn’t have time to incorporate into this piece.)

Last month, a court in Ghana detained the ARA Libertad, an Argentine naval training vessel, until Argentina guarantees repayment for a portion of its defaulted government debt.  This minor legal action has now exploded into an international incident.  Argentina has accused Ghana of violating international treaties, sought the intervention of the U.N. Security Council, and suggested that the Ghana courts are facilitating “an act of piracy against a sovereign country by greedy “vulture funds.”  They have also recently sought action by the International Tribunal for the Law of the Sea.

Argentina’s bluster obscures the weakness of their legal position.  The Ghana court’s well-reasoned and thoughtful decision is completely consistent with international law and should be lauded for forcing Argentina to face accountability for its financial impunity.

Weekday News Wrap: Friday, November 30, 2012

by An Hertogen

AP Outdoes Itself with Horrid Iran Reporting

by Kevin Jon Heller

I’ve been meaning to discuss the AP’s recent claim that an obviously fraudulent graph provided to it by an unnamed country (almost certainly Israel) proves that Iran is trying to build a nuclear weapon. As is often the case, however, Glenn Greenwald beat me to it.

If the AP were capable of shame, it would immediately retract the story, apologize to its readers, and engage in some profound soul-searching about its willingness to be played by a country that it openly admitted in its story was “critical of Iran’s atomic program.” Instead, this has been the sum total of its reply to its critics: “We continue to report this story.”

That reply should be amended: “The AP continues to inaccurately report this fraudulent story.” Yellow journalism at its worst.

Yes, Palestine Could Accept the ICC’s Jurisdiction Retroactively

by Kevin Jon Heller

In the wake of today’s long-overdue vote to upgrade Palestine to observer-state status, there seems to be persistent confusion concerning what would happen if Palestine ratified the Rome Statute. In particular, a number of commentators seem to think that it is unclear whether the ICC would have jurisdiction over crimes committed prior to Palestine’s ratification. (See Colum Lynch at FP, for example.) In fact, the Rome Statute leaves no doubt whatsoever that Palestine could (but would not be required to) accept the Court’s jurisdiction retroactive to 1 July 2002, the date the Rome Statute entered into force. The relevant provisions are Articles 11(2) and 12(3) (emphasis added):

11(2): If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.

12(3): If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

Though not the picture of drafting clarity, the two provisions make clear (1) the default position is that the ICC will have jurisdiction only over crimes committed after a state ratifies the Rome Statute, but (2) the state in question may file a declaration with the Registrar accepting the Court’s jurisdiction retroactively.

It is worth noting that Palestine would not have to ratify the Rome Statute to refer the situation in Gaza to the ICC. It could also accept the Court’s jurisdiction on an ad hoc basis, pursuant to Article 12(3). And it could do so retroactively, as the Cote d’Ivoire precedent indicates. (Cote d’Ivore, a non-member state, accepted the Court’s jurisdiction on 18 April 2003 retroactive to 19 September 2002.)

Finally, I’ll say it once again: Palestine should be careful what it wishes for. I think it is highly likely that, if the OTP investigated the situation in Gaza, Palestinians would end up in the dock long before Israelis. From a legal perspective, Fatou Bensouda would find it much easier to prosecute Hamas’s deliberate attacks on Israeli civilians than Israel’s disproportionate attacks, collective punishment of Palestinians, and transfer of its civilians into occupied territory. The latter crimes are fraught with ambiguity and difficult to prove. I know I wouldn’t start with them, were I the Prosecutor.

Weekday News Wrap: Thursday, November 29, 2012

by An Hertogen

Hey, Associated Press! Colombia’s Withdrawal Really Does Diminish ICJ’s Authority

by Julian Ku

The Associated Press has a confusing and muddled account of the consequences of Colombia’s withdrawal from the Bogota Pact (American Treaty on Pacific Settlement), which had committed Colombia to the ICJ for disputes with other signatory states.  Here is where the AP account doesn’t make much sense (or is flat out wrong):

Legal experts, however, said [Colombian President] Santos’ announcement was unlikely, in practice, to diminish the court’s authority in any international disputes involving the South American nation.

International legal experts said [Colombian President] Santos’ announcement would not, in practice, exempt Colombia from the jurisdiction of the World Court, as it is recognized as the arbiter of last resort under customary international law and practice.

Uh, with all due respect to the AP’s international legal experts, that’s not quite right. By withdrawing from the Bogota Pact, Colombia is no longer committed to go to the ICJ to resolve disputes with other Bogota signatories (not that there are all that many).  Colombia has also not accepted the compulsory jurisdiction of the ICJ under the ICJ Statute.  Colombia is therefore free from being forced to go to the ICJ unless it has specifically agreed to do so in a particular treaty. And it has not always done so. For instance, it has never ratified the Optional Protocol to the Vienna Convention on Diplomatic Relations, which would have committed to compulsory dispute settlement before the ICJ.

So the ICJ’s authority over Colombia has diminished (although it was never great to begin with) and, if not exempt, Colombia is at least “free” of the jurisdiction of the ICJ in disputes with most other nations.  And I have no idea what the AP reporter means when he says that the World Court is recognized as “the arbiter of last resort under customary international law and practice.” The ICJ’s interpretations of customary international law are authoritative but not binding.

The AP report gets further confused when it quotes from Prof. Matthew Brotman of Pace Law School.

In my opinion, although he may say that they no longer are going to recognize the jurisdiction of the court, it doesn’t really matter,” Brotmann said.

“Countries can’t really pick and choose what parts of a treaty that they’ve already ratified they want to be held to.”

Reporters garble quotes all the time, which is probably what happened here.  Countries can denounce treaties that otherwise grant jurisdiction for dispute settlement. El Salvador did it under the Bogota Agreement and the U.S. did so with respect to the Consular Relations Convention’s Optional Protocol.  So the denunciation means Colombia can never be brought under the Bogota Treaty to the ICJ in a future dispute. That “matters”!

So, Associated Press, I think a re-write is in order.

Colombia Withdraws from Bogota Treaty’s ICJ Compulsory Jurisdiction Provision

by Julian Ku

Still smarting from the ICJ’s judgment last week awarding rights to Nicaragua over territorial waters claimed by Colombia, President Juan Manuel Santos announced that Colombia is withdrawing from the 1948 Bogota treaty granting jurisdiction to the ICJ to resolve disputes between signatories.   Since Colombia was obviously the host to the treaty’s creation and (until now) had made no limitations on its obligations under that treaty, it seems like a pretty big deal.  Colombia has also not accepted the compulsory jurisdiction of the ICJ under the ICJ Statute.  So this is a blow (albeit a non-retroactive one) to the ICJ’s reach and authority in Latin America.

Weekday News Wrap: Wednesday, November 28, 2012

by An Hertogen

  • In Syria, rebel forces have for the first time downed a government helicopter using a surface-to-air missile they acquired during the recent capture of an army base.
  • The EU is reviewing its sanctions on Syria, and the UK, with France’s backing, is arguing for a review every three months to make it easier to arm the opposition.
  • The head of the Palestinian commission investigating the death of Yasser Arafat has stated that the Palestinian state would go to the ICC, should it be established that Arafat was poisoned.
  • In Eastern Congo, M23 rebels have started withdrawing from Goma after a deal was reached in Kampala, Uganda.
  • Satellite images suggest that North Korea is planning a new missile test, possibly to coincide with the South Korean Presidential election on December 19.
  • The US Treasury has declined to label China a currency manipulator, despite finding that the yuan remains significantly undervalued.
  • China is considering relaxing its “one child policy” to deal with the challenges of a rapidly greying population.
  • Stirred into action by protests over the death of Indian immigrant Savita Halappanavar following the refusal of an abortion, the Irish government has announced that it will make a decision before the end of the year about the admissibility of abortion.
  • The European Commission and the European Parliament are discussing stricter rules for credit rating agencies.
  • In a move criticised by environmental groups, the European Commission has decided to back certain palm oil products as sustainable transport fuels.

An Excellent Summary of Activities in the Lago Agrio Case

by Kevin Jon Heller

I haven’t blogged about Chevron lately, because there has not been much news to report. But I want to mention an excellent article discussing plaintiffs’ efforts to force Chevron to pay at least part of the judgment. The article is written by a financial analyst associated with the investment website Seeking Alpha, so it has no particular ideological axe to grind. Indeed, it strikes me as remarkably fair. Interested readers should check it out.

DOD Directive on “Autonomy in Weapons Systems”

by Kenneth Anderson

At almost the same moment that Human Rights Watch/Harvard Law School Human Rights Clinic released its report, “Losing Humanity: The Case Against Killer Robots,” which called for states to establish a treaty that would prohibit the “development, production, and use” of “fully autonomous weapons,” the Pentagon (under Deputy Defense Secretary Ashton Carter’s signature) issued a DOD Directive, “Autonomy in Weapons Systems.”  THE DOD Directive sets out standards and mandates review of autonomy and automation features of rapidly proliferating of “automating” military systems, as they are developed and evolved, to ensure compliance with the laws of war and, more broadly, to ensure that both design and operational knowledge in the field maintain “appropriate” levels of human control in any weapons use.  Matthew Waxman and I discussed the HRW report at Lawfare; DangerRoom-Wired’s Spencer Ackerman discusses the HRW report, the DOD Directive, and Matt’s and my approach in our “Law and Ethics for Robot Soldiers.”  Benjamin Wittes at Lawfare excerpts some important chunks of the DOD Directive.

Ackerman says of the DOD Directive that the “Pentagon wants to make sure that there isn’t a circumstance when one of the military’s many Predators, Reapers, drone-like missiles or other deadly robots effectively automatizes the decision to harm a human being.”  The Directive seeks to  “‘minimize the probability and consequences of failures’ in autonomous or semi-autonomous armed robots ‘that could lead to unintended engagements’, starting at the design stage.”  Its solution – unlike HRW’s call for what its report terms an “absolute ban” – is based upon constant reviews of the military system (unintended effects on weapons systems might occur because of changes to non-weapons systems, after all) – from the inception of design forward.  The DOD Directive is intended to be flexible in application and to apply to all military systems, so it relies on a general standard of “appropriate” levels of human control over the system at issue, without specifying in each case what that will mean.

Ackerman adds that Matt Waxman and I should be pleased with the Directive’s approach, and we are.  In our “Law and Ethics for Robot Soldiers” article, he notes, we

observe that technological advancements in robotic weapons autonomy is far from predictable, and the definition of “autonomy” is murky enough to make it unwise to tell the world that it has to curtail those advancements at an arbitrary point. Better, they write, for the U.S. to start an international conversation about how much autonomy on a killer robot is appropriate, so as to “embed evolving internal state standards into incrementally advancing automation.”

Waxman and Anderson should be pleased with Carter’s memo, since those standards are exactly what Carter wants the Pentagon to bake into its next drone arsenal. Before the Pentagon agrees to develop or buy new autonomous or somewhat autonomous weapons, a team of senior Pentagon officials and military officers will have to certify that the design itself “incorporates the necessary capabilities to allow commanders and operators to exercise appropriate levels of human judgment in the use of force.” The machines and their software need to provide reliability assurances and failsafes to make sure that’s how they work in practice, too. And anyone operating any such deadly robot needs sufficient certification in both the system they’re using and the rule of law. The phrase “appropriate levels of human judgment” is frequently repeated, to make sure everyone gets the idea. (Now for the lawyers to argue about the meaning of “appropriate.”)

In one sense, I suppose HRW could say that this is what their report calls for, since it tries to build in a notion of incremental reviews into what a treaty should mandate. But the purpose of these reviews for HRW’s proposal seems to be to indicate when the absolute ban on “development” of autonomous weapons systems is triggered.  The HRW report is not, to my reading at least, completely clear on what “development” means in the context of incremental reviews, or in the context of what the report itself calls an absolute ban; it seems to be trying to mix absolute apples with incremental oranges.

The role of incremental reviews for the Directive, by contrast, is not about whether some point triggering an absolute ban has been reached, but instead to determine whether the technological system, at that point in its development, preserves the “appropriate” amount of human control and, in the case of a system in the process of design and development, will continue to do so as development continues to a final system that has be legally evaluated for deployment.  This is a quite distinct meaning of “reviews”; it’s certainly not an absolute ban on “development” of systems that, in a world of murky, incremental technological progress might be closing in on human-less autonomy but might not.  It’s flexible as applied to incrementally advancing technology, not absolute.  It’s also worth pointing out that while there is a fundamental legal standard at issue here – the requirement of legal review of weapons for compliance with the laws of war – most of this is really policy seen as trying to implement law at the front end, particularly with regards to the incremental, and in some cases incidental-but-dangerous, progression of systems that are at the design stage only.

At the end of the day, I think the DOD Directive approach will be that taken by countries, and not just the US, developing automated technologies in weapons and military systems generally.  But Matt Waxman and I will have more to say about both these documents and their respective approaches over the next while.

Weekday News Wrap: Tuesday, November 27, 2012

by An Hertogen

Britain to Support Palestine’s UNGA Resolution?

by Kevin Jon Heller

The United Nations General Assembly is set to decide Thursday whether to upgrade Palestine to “non-member state” status, on par with the Vatican. The resolution will almost certainly pass, given that more than 130 states have already recognized a Palestinian state. The interesting question is whether powerful Western states will vote in favor of the resolution. France has already indicated that it will. And now the BBC is reporting that, if the Palestinians accept certain conditions, it will support the resolution as well:

On Monday night, the government signalled it would change tack and vote yes if the Palestinians modified their application, which is to be debated by the UN general assembly in New York later this week. As a “non-member state”, Palestine would have the same status as the Vatican.

Whitehall officials said the Palestinians were now being asked to refrain from applying for membership of the international criminal court or the international court of justice, which could both be used to pursue war crimes charges or other legal claims against Israel.

Abbas is also being asked to commit to an immediate resumption of peace talks “without preconditions” with Israel. The third condition is that the general assembly’s resolution does not require the UN security council to follow suit.

The US and Israel have both hinted at possible retaliation if the vote goes ahead. Congress could block payments to the Palestinian Authority and Israel might freeze tax revenues it transfers under the 1993 Oslo agreement or, worse, withdraw from the agreement altogether. It could also annex West Bank settlements. Britain’s position is that it wants to reduce the risk that such threats might be implemented and bolster Palestinian moderates.

The second and third conditions seem reasonable — if ultimately meaningless. The article notes, though, that the Palestinians are resisting Britain’s insistence that an upgraded Palestine not join the ICC and ICJ. And rightfully so: the demand is simply another permutation of the idea that the Palestinians should accept a state that does not actually enjoy the perquisites of statehood. (To be clear: I remain completely opposed, on political grounds, to the ICC investigating the situation in Gaza.) It is also hard to see how a promise not to join the ICC and ICJ could be enforced, should Palestinian leadership ever change hands.

Human Rights Watch Report on Autonomous Weapons, and Matthew Waxman and Ken Anderson’s Critique

by Kenneth Anderson

Human Rights Watch has released a new report (co-authored by the Harvard Law School Human Rights Clinic) on autonomous weapons systems that might emerge over the next several decades, titled “Losing Humanity: The Case Against Killer Robots.”  The report calls for a multilateral treaty that would preemptively ban “development, production, and use” of fully autonomous weapons by all states.  It would be hard to be more sweeping than the report’s language in calling a comprehensive ban – here is the language from the recommendations, directed to states:

Prohibit the development, production, and use of fully autonomous weapons through an international legally binding instrument.

Adopt national laws and policies to prohibit the development, production, and use of fully autonomous weapons.

Commence reviews of technologies and components that could lead to fully autonomous weapons. These reviews should take place at the very beginning of the development process and continue throughout the development and testing phases.

It happens that Matthew Waxman and I have a policy essay appearing on this topic in the December-January issue of Policy Review, “Law and Ethics for Robot Soldiers” (the link goes to a special SSRN version with footnotes).  While of course sharing the concern that any new weapons system meet the requirements of the laws of war, our conclusions run the opposite direction as Human Rights Watch’s.  Over at Lawfare, we discuss reasons why this kind of sweeping, prohibitory approach seems to us both wrong on substance and unworkable in practice.  It’s a complicated topic, and I imagine we’ll probably post some more detailed and specific critiques of the report, and discuss it at Lawfare, here at OJ, and at Volokh.

Sephardic Jews Get Right of Return – To Spain

by Peter Spiro

Spain is now granting citizenship automatically without any residency requirement to those who can demonstrate descent from those Jews expelled from Spain more than 500 years ago. The rule could make as many as 3 million Sephardic Jews worldwide eligible for Spanish citizenship (600,000 of them in the United States, including a number who identify as Hispanic). The details remain a little sketchy, but assuming no costs and minimal bureaucratic hoops one can expect a good subscription for the offer (Spanish citizenship may not be so valuable these days, but EU citizenship is).

The rule has some superficial similarity to Germany’s approach to Holocaust survivors stripped of German nationality under the Nazi regime. German law provides for the “restoration” of citizenship to survivors and descendants, with no residency, language facility or other requirements.

But count me a skeptic on the Spanish measure. Unlike the German situation, we’re talking way distant past. The Sephardic diaspora has no relationship with the modern Spanish state in the way that Holocaust victims do; it would be a messy world if all ancient wrongs had to be made right. Of course doling out citizenship is cheap. Could it be that Spain is using redress as an economic recruiting tool? It is perhaps not a coincidence that Spain also announced last week an offer of immigrant visas (the equivalent of a US green card) to those who buy houses worth 160,000+ Euros.

Meanwhile, 750,000 Moroccan migrants in Spain have to satisfy a ten-year residency requirement for naturalization. The Inquisition also resulted in the expulsion of their ancestors, the Moors. Why aren’t they getting a new citizenship deal, too? Incongruous that someone whose family hasn’t lived in Spain for half a millennium can sign up for citizenship when someone living there today can’t.

Weekday News Wrap: Monday, November 26, 2012

by An Hertogen

Auguring Afghanistan: Foreign Criminal Jurisdiction of US Service Members

by Chris Jenks

[Chris Jenks is an assistant professor of law at SMU Dedman School of Law. He previously served as chief of the US Army’s international law branch where his responsibilities included foreign criminal jurisdiction (FCJ) over US service members.]

The U.S. and Afghanistan recently initiated formal discussions concerning the continued presence of U.S. troops in Afghanistan after 2014, when Afghanistan is expected to assume full responsibility for its security.

These discussions are often framed by comparison to the U.S’ unsuccessful negotiations with Iraq on the same issue – the status of U.S. forces in Iraq. The critique of the Iraq negotiations focuses on the delayed timing of the talks, a problem the U.S. is seemingly avoiding in the discussions with Afghanistan. Yet while timing may have complicated the Iraq negotiations, it was the inability of the two States to agree to a criminal jurisdiction construct that proved dispositive of failure.

The criminal jurisdiction debate, and I submit whether the U.S. will maintain anything more than a de minimis troop presence in Afghanistan in 2014 and beyond, hinges on whether there is any set of circumstances which would result in Afghanistan having a primary right of criminal jurisdiction over U.S. service members.  The question allows for only a binary answer. From Afghanistan’s perspective the answer must be yes, while, similar to its negotiating position with Iraq, the U.S. answer is almost certainly no.

So regardless of when the talks with Afghanistan began, absent one State altering what is likely a “red line” answer to the FCJ question, there is little reason to believe the negotiations with Afghanistan will end any differently than those with Iraq, where plans for stationing 10,000 or more U.S. service members yielded a reality of less than 150.

To be sure there are hosts of difficult issues in SOFA negotiations – taxes, environmental, postal (yes, postal), to name just a few. And that US service members would likely be using force in Afghanistan is a qualitatively different environment than almost any other where the U.S has concluded a SOFA, and that also poses challenges. But while there can be significant national interests within some of those issues, there are generally gradients or degrees which provide negotiating flexibility. Not so with foreign criminal jurisdiction, at least with the over arching question of whether a receiving state, here Afghanistan, would ever have primary criminal jurisdiction over members of the sending states military, here the U.S.

Currently the foreign criminal jurisdiction construct in Afghanistan is unilateral.  Pursuant to a 2003 exchange of notes between the U.S. and Afghanistan, the U.S. has exclusive criminal jurisdiction over its service members. Thus, when U.S. Army Staff Sergeant Robert Bales allegedly murdered 17 Afghan civilians earlier this year, U.S. jurisdiction was never in doubt.

The question is if, in 2014 and beyond, there were another “Bales” like incident, pre-meditated U.S. service member criminal conduct in Afghanistan with only Afghan civilian victims, would Afghanistan have primary jurisdiction over the offender?

U.S. lawmakers, including Senator Lindsay Graham, are already claiming that any SOFA with Afghanistan must retain the status quo of exclusive U.S. jurisdiction over its service members. The exercise of criminal jurisdiction is one of the most basic indicia of sovereignty.  Its hard to envision President Karzai explaining to the Afghan people how Afghanistan has reclaimed control of its security yet lacks criminal jurisdiction even over individuals who rape or kill Afghans in Afghanistan.

So unless the U.S. or Afghanistan concede on the answer to the threshold FCJ question, starting SOFA negotiations now is little more than a head start on failure and a Iraq redux.

The ICC Can Get Its Hands on Gaddafi

by Kevin Jon Heller

Okay, not Saif Gaddafi.  Saadi:

Niger’s President Mahamadou Issofou has said his government is ready to hand Saadi Qaddafi over to the International Criminal Court should the body request it to do so.

To date, the ICC has not issued a warrant for Saadi’s arrest, and will not request his extradition unless that position changes. On 7 November, however, the ICC’s Chief Prosecutor Fatou Bensouda revealed that the court was investigating crimes allegedly committed by both Qaddafi regime members and revolutionaries during last year’s revolution, and may bring a new case in the near future.

Issofou’s offer is likely to infuriate the government in Tripoli, with Libya having issued several futile requests to Niger to hand Saadi over in the past year.

A member of his father’s inner circle, Saadi commanded the regime’s special forces during the revolution and it is claimed that he personally ordered his men to shoot unarmed protesters at the outset of the conflict, an allegation which Saadi denies. On 4 March 2011, Interpol announced it had issued a Red Notice for Saadi’s arrest, although only on charges of theft.

I don’t know whether Saadi’s criminal responsibility warrants prosecution.  Given that Libya has no intention of giving Saif to the ICC even if it loses its admissibility challenge, though, the OTP may want to seriously consider it.

Weekend Roundup: November 17 – 24, 2012

by An Hertogen

Posting was light this week due to the Thanksgiving holiday in the US. We hope all our US readers had a very happy Thanksgiving holiday!

Peter Spiro commented on the territorialist approach in Obama’s speech on citizenship during this week’s visit to Burma.

Deborah Pearlstein posted about the ABA’s recent journalists’ guide on national security law, to which she contributed a chapter on international law in US courts.

Kristen Boon reported on the UN Security Council’s debate on maritime piracy, and the resulting presidential statement, and wondered about the role of the Security Council in this area. Continuing on this “watery” theme, Ken Anderson wrote about a new set of amendments agreed by Mexico and the US to the 1944 Colorado River Pact and Julian Ku blogged again about Argentina’s claim under the UNCLOS against the seizure of its naval training ship in Ghana. In his post, he agreed with Matthew Happold’s argument that the ITLOS does not jurisdiction because this is not an UNCLOS question.

Julian also pointed out that Colombia is already looking for alternative legal mechanisms to resist this week’s ICJ judgment in its dispute with Nicaragua, and was critical of the suggestion by Geoffrey Robertson QC that international law might be able to resolve the Iran nuclear crisis.

Kevin Jon Heller posted about an interview with Judge Sow about the Charles Taylor trial. Further on Africa, Ken Anderson discussed how the UN is considering deploying surveillance drones in Eastern Congo.

As always, we listed upcoming events and provided daily news wraps. Our readers may also be interested in the job of Assistant Dean for International Affairs at the University of Michigan Law School, mentioned by Peter.

UN Proposes to Use Surveillance Drones in DR Congo-Rwanda Conflict

by Kenneth Anderson

Pushback against weaponized drones and targeted killing, at least as undertaken by the United States, is increasing now that President Obama has been reelected, and presumably anti-drone campaigners are looking for ways to bring pressure on his administration’s policies before they are set in strategic, operational, and logistical cement – as likely they would be after eight years under a Democratic administration. This NGO advocacy campaign has intense support among UN special rapporteurs – for counterterrorism and human rights, for example, and extrajudicial execution – as well as some, and perhaps considerable support among the US’s European allies.  I’ve been meeting informally with various European government officials and diplomats who are trying to get a sense of the intersection of US government legal, policy, and strategic view. These European officials strike me as both circumspect and unhappy with the policy and legal rationales offered by the administration in its various speeches.

The situation is complicated by the fact that the UN and our European allies – indeed, everyone with a defense budget to speak of – are acquiring drones (or at least seeking access to them, in the case of the UN), both surveillance drones and, at least in some cases, weaponized drones.  According to AFP, the UN is seeking surveillance drones to monitor the DR Congo-Rwanda conflict – the UN hopes that the United States or France, or perhaps other countries, will make them available:

UN officials stress that there could be no speedy deployment of drones in DR Congo as MONUSCO would need equipment and training. But it would be a major first in UN peacekeeping operations. A previous plan to get drones into DR Congo was dropped because of the cost, But the price of the technology has come down with so many countries now using unmanned planes for battlefield reconnaissance and espionage. “The UN has approached a number of countries, including the United States and France, about providing drones which could clearly play a valuable role monitoring the frontier,” a UN diplomat said, on condition of anonymity.” Clearly there will be political considerations though,” the diplomat added. The UN plan is only to have surveillance drones, but the spying capability of the unmanned aerial vehicles worries a lot of countries.

France might be willing to do so, but it also has to consider other possible missions – such as a possible deployment of drones to support ECOWAS military action to oust Islamist insurgents who have seized territory in Mali.  But of course, these are all surveillance missions – not weaponized drones. Perhaps drone use by the UN or France or other NATO allies will remain purely as surveillance – but perhaps not.  In the hands of UN forces in DR Congo, maybe the drones will be surveillance UAVs only.  But France has not ruled out weaponized drones in Mali, so far as I know, if some intervention takes place, and I would be surprised (really surprised) if it did rule them out.  And there are good reasons to believe that if there were serious fighting by ground forces in Mali, the states supplying the troops fighting on the ground would demand that NATO countries supplying air assets use them in weaponized form to protect their ground troops.  (Greg McNeal also comments at his Forbes column.)  Continue Reading…

Upcoming Events: November 24, 2012

by An Hertogen

  • The Chinese (Taiwan) Society of International Law will hold the ILA-ASIL Asia-Pacific Research Forum on May 15-16, 2013 in Taipei, Taiwan, ROC. The title of the Research Forum is “International Law and Dispute Resolution: Challenges in the Asia Pacific.” The organizing committee welcomes proposals on any topic relating to international law with a focus on the Asia Pacific. Paper proposals must be submitted electronically by January 20, 2013 to ila [at] nccu [dot] edu [dot] tw. Other inquiries can be directed to Pasha Hsieh, co-organizer of the Research Forum.
  • The Cambridge Journal of International and Comparative Law is calling for abstracts of max. 300 words for its second annual conference, planned for May 18-19, 2013 in Cambridge. The theme of the conference is Legal Tradition in a Diverse World. More information can be found here.
  • Paper proposals of max. 500 words are invited related to the theme ‘Transnational Judicial Dialogue: Concept, Method, Extent and Effects’ for a conference in Oslo on June 21-22, 2012 co-organized by the International Law through the National Prism Project at the Amsterdam Center for International Law and the MultiRights – The Legitimacy of Multi-Level Human Rights Judiciary Project at the University of Oslo Faculty of Law. Papers are due by February 15, 2013. The call for papers is here.
  • The MultiRights project is also seeking applications for Resident Research Fellowships at the Summer Institute in Oslo to research the impact of the regional and international human rights judiciary.

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.

Weekday News Wrap: Friday, November 23, 2012

by An Hertogen

Judge Sow’s Shocking Interview with the New African Magazine

by Kevin Jon Heller

I’ve written before about Judge Sow’s attempt to make a statement in open court criticizing Charles Taylor’s conviction.  Now Judge Sow has given a lengthy interview to the New African magazine concerning the trial, his attempt to make the statement, and his punishment afterward.  As Bill Schabas points out today, “[n]othing comparable has ever appeared in the history of international criminal justice.”  Judge Sow doesn’t mince words; he believes that the prosecution completely failed to prove Taylor’s guilt.  Here is a sample:

What I said about the system is that international justice cannot cope and put up with the very low standard of proof applied in this case. International justice cannot be based on rumours. These are mass crimes. This is where we must have the highest standard of proof. It’s about proving the guilt of the accused beyond reasonable doubt. But they didn’t even reach the lowest standard of proof.

Most importantly, the accused came with very official papers, with witnesses who were at the frontline, witnesses who were main actors of this whole conflict. How can you compare these witnesses with those people who didn’t get even close to the scene? The prosecution’s case by itself is so insufficient, so unreliable. It’s about people contradicting themselves, people denying what they had said in previous statements.

The entire interview is well worth a read, and it paints a damning portrait of the Taylor case.  I would note, though, that Judge Sow makes clear in the interview that the judges in the case did meet to deliberate about Taylor’s guilt; Judge Sow simply believes that their deliberations were inadequate — and that he was wrongly excluded from them.  Those statements back up my earlier argument that the defence should not be permitted to call Judge Sow to testify in support of Taylor’s appeal.

US and Mexico Pact on Colorado River Water

by Kenneth Anderson

Happy Thanksgiving, the best of the American holidays … I’m taking a quick break from cooking to note this Washington Post story on water rights.  Water rights are a fairly obscure topic to most lawyers, unless one is in a place like the southwestern United States or northwestern Mexico, in which case water rights are a kind of underlying regulatory structure of many other things, such as patterns of agriculture, urban and suburban development, etc.

I sometimes forget how important these issues become when rivers cross national borders, and where actions, such as dams or other diversions, by the upstream country can have enormous effects on the downstream country.  A senior Egyptian official once told me in passing (years ago) that if there were ever a Sudan that decided to divert significant parts of the Nile, Egypt would regard it as a casus belli if negotiations did not fix it – I asked on what legal theory, and he shrugged.  Water rights tend to structure things at the infrastructure and development level – oftentimes large numbers of people’s expectations for the long term are set around long run expectations about water supply, so that disruptions across borders might not occasion merely a marginal change of degree in behavior, but trigger institutional crises.  People’s livelihood are often at stake, but sometimes, not just livelihoods but a way of life for a region.

So I was interested to see that the United States and Mexico, which unsurprisingly have had serious disagreements over water rights in the past, have signed a new five year pact of amendments to the 1940s era Colorado River pact.  The amendments essentially bring Mexico into an arrangement created by US states sharing Colorado River water, to address times of drought.  The essence of the pact, as with the inter-US-state agreement, is to allow a party to “bank” water during wetter periods in reservoirs upstream, and then draw on that water in times of drought.

Whether this will work as planned, or whether it will address the generally drier conditions of the region or greater total demands for water in the region, I don’t know.  I did a quick check of Mexican press online, and there seemed to be a cautious endorsement, but I’d be interested to know how those more familiar with Mexico’s internal policy think of it; I’m definitely no expert on water rights, let alone cross-border water rights between Mexico and the US.  But I thought it was an interesting instance of international agreements over water rights.  Here is how the WaPo (AP) story describes it:

The far-reaching agreement gives Mexico badly needed water storage capacity in Lake Mead, which stretches across Nevada and Arizona. Mexico will forfeit some of its share of the river during shortages, bringing itself in line with western U.S. states that already have agreed how much they will surrender when waters recede. Mexico also will capture some surpluses when waters rise. Also under the plan, water agencies in California, Arizona and Nevada will buy water from Mexico, which will use some of the money to upgrade its canals and other infrastructure.

The agreement, coming in the final days of the administration of Mexican President Felipe Calderon, is a major amendment to a 1944 treaty considered sacred by many south of the border. The treaty grants Mexico 1.5 million acre-feet of river water each year — enough to supply about 3 million homes — making it the lifeblood of Tijuana and other cities in northwest Mexico. The pact represents a major departure from years of hard feelings in Mexico about how the U.S. manages the 1,450-mile river, which runs from the Rocky Mountains to Mexico. In 2001, U.S. states established rules on how to divide surpluses but set aside nothing for Mexico. Several years later, the U.S. government lined a border canal in California with concrete to prevent water from seeping through the dirt into Mexican farms.

“We have chosen collaboration over conflict, we have chosen cooperation and consensus over discord,” said U.S. Interior Secretary Ken Salazar, who called the new pact the most important international accord on the Colorado River since the 1944 treaty. Mexico will begin to surrender some of its Colorado River allotment when Lake Mead drops to 1,075 feet above sea level and begin to reap surpluses when it rises to 1,145 feet. Mexico will be allowed to store up to 250,000 acre-feet of water in the reservoir and draw on nearly all of those reserves whenever needed. The agreement expires in five years and is being billed as a trial run, potentially making it more palatable in Mexico.

Weekday News Wrap: Thursday, November 22, 2012

by An Hertogen

Security Council Debates Maritime Piracy

by Kristen Boon

Under India’s presidency, the UN Security Council debated the global phenomenon of maritime piracy on November 19.  The outcome was a presidential statement, not a resolution.  Although not binding, it highlights future trends in the Security Council’s approach to piracy.   Unlike prior Security Council actions that have been region specific, Monday’s debate reflects the global dimensions of the issue including references to the spike in attacks off the oil rich coast of the Gulf of Guinea.

The Security Council’s involvement in matters of piracy goes back several years now, when piracy off the coast of Somalia became a major international problem.  Under Security Council resolution 1816, the Council famously authorized states to enter the territorial waters of Somalia, limiting the sovereignty of Somalia with regards to this crime that historically was linked to the high seas.   Since then, the Council has authorized limited incursions onto land, and has generally been a prime mover on legal approaches to the problem, although always circumscribing its resolutions to the situation at hand.  Resolution 1816, for example, is carefully worded to apply only to Somalia, and the resolution explicitly notes it is not indicative of a new customary international rule.  Another resolution in which the Security Council asserted a decidedly legal approach was Resolution 2020, which highlights the link between attacks at sea and conspiracies and criminal networks on land, and urges states to establish anti-piracy courts.

The November 19 debate is notable for a few reasons.  First, the statement encouraged the development of new rules of deployment for private security contractors.  It appears that the IMO is leading the charge in this regard, and some interesting recommendations can be found on its website.  Second, there was some concern prior to the debate about whether to include a reference to illegal fishing and dumping in the statement.  The presidential statement does not, in the end, refer to these related issues although several countries highlighted them in their speeches.  Third, Argentina took issue with the Security Council’s assertion of jurisdiction.   The representative said that “unless a situation had engendered Council action under Chapter VII for other reasons, such as the situation in Somalia, piracy was not under the competence of the body; it was, rather under the framework of the Convention on the Law of the Sea.”

I have been observing the Security Council’s response to piracy for several years now, and I have been repeatedly surprised by the heavy overlay of law in its resolutions on this topic.  Indeed, in my opinion, the piracy resolutions are distinctive in their multiple concrete references to laws and legal institutions.  For example, one sees references to the Djibouti code of conduct on human rights, anti-piracy courts, methods to strengthen domestic criminal laws, and of course, to the overarching legal framework created by UNCLOS and SUA.  This preambular paragraph from Resolution 2020 illustrates the Security Council’s legalistic approach:

 “Recognizing the need to investigate and prosecute not only suspects captured at sea, but also anyone who incites or intentionally facilitates piracy operations, including key figures of criminal networks involved in piracy who illicitly plan, organize, facilitate, or finance and profit from such attacks and reiterating its concern over a large number of persons suspected of piracy having to be released without facing justice, reaffirming that the failure to prosecute persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia undermines anti-piracy efforts of the international community and being determined to create conditions to ensure that pirates are held accountable…”

I wonder whether others see the Security Council as exercising a particularly overt legal role in the realm of piracy as well, even if the Council is attempting to curb the impression its resolutions are precedent setting.   And I wonder whether the Security Council’s legal bid in the field has prompted countries like Argentina to retaliate by opposing general Security Council jurisdiction over matters of piracy.



Weekday News Wrap: Wednesday November 21, 2012

by An Hertogen

University of Michigan Seeking Assistant Dean for International Affairs

by Peter Spiro

Job posting here. This would be a fabulous opportunity for someone with an international law background. Michigan of course has one of the country’s top international law faculties and led the way in requiring transnational law as part of its first-law curriculum.

Can International Law Resolve the Iran Nuclear Crisis? Nope.

by Julian Ku

UK human rights lawyer Geoffrey Robertson has a confused, muddled, and revealing editorial in Bloomberg about how international law might help resolve the Iran nuclear crisis. While he describes the relevant law accurately, he fails to show how international law is doing much of anything to resolve the crisis.  Here is the relevant law, as he sees it: Israel has a right of self defense, but not to attack Iran even if Iran builds a nuclear weapon. The U.S. needs Security Council authorization to attack Iran (which it won’t get). Iran is allowed under the Nuclear Non-Proliferation Agreement to develop a full nuclear cycle, and then withdraw from the NPT when its weapons are ready.  This might be correct, as a legal matter, but how does it help anything? It simply shows that existing international law permits Iran to get a nuclear weapon while preventing anyone else from doing anything about it.  So what’s his solution? Everyone else disarm.

According to the World Court — correctly this time — nuclear-armed countries have a legal obligation under Article VI of the nuclear nonproliferation treaty to negotiate a gradual disarmament, to zero. This might be done on a “first in, last out” basis, with North Korea being first to lose its bombs and a final ceremony to destroy simultaneously what is left in the Russian and U.S. arsenals — perhaps attended by the aging former U.S. and Russian leaders, Barack Obama and Vladimir Putin, circa 2045.

Umm…sure…that is going to happen. And that will work.  I thought lawyers were supposed to offer practical and useful solutions, not utopian fantasies.  I guess not when you are Geoffrey Robertson Q.C.

ICJ Gives Colombia an Empty Victory Over Nicaragua

by Julian Ku

Just a further quick note on the ICJ opinion yesterday (press release here)  on the long-running Colombia/Nicaragua dispute over sovereignty and control over certain Caribbean islands.  The ruling seems a mixed bag since it recognizes Colombia’s sovereignty and rejects other Nicaragua submissions.  But Nicaragua is declaring victory.

At first glance, I get nervous when courts (any courts, whether domestic or international) start adjusting lines based on “equitable considerations.” But there are no good ways to do this according to very strict legal rules. So we’ll see if this ruling sticks. Colombia is looking for another legal mechanism to resist the judgment. Not sure what that would be, but best of luck President Santos!

“Colombia strenuously rejects this aspect of the ruling,” said President Juan Manuel Santos, referring to the court’s decision.

He described the court’s decision to move the maritime border westwards as “wrong and contradictory”.

“We won’t discard any legal recourse or mechanism available under international law to defend our rights,” he said after a meeting of the Colombian cabinet.

Argentina’s Very Weak Case for Jurisdiction in the ITLOS

by Julian Ku

This analysis from Professor Matthew Happold offers very good reasons to doubt that Argentina can validly invoke the jurisdiction of the International Tribunal of the Law of the Sea in its dispute with Ghana. Putting aside Argentina’s argument that it did not (or could not) waive its warship’s immunity, Professor Happold points out that it is far from clear that this dispute implicates any issue involving the UN Convention on the Law of the Sea. The key is UNCLOS Art. 32:

With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes.

The most logical reading of this language here is that the legal issue between Ghana and Argentina: is there immunity for the warship? — is not a UNCLOS question.  And nothing in Argentina’s request for provisional measures makes me think that it is should be thought of as a UNCLOS question.

As Professor Happold notes:

Subsection A of Section 3 of Part II of UNCLOs deals with the rules applying to all ships concerning innocent passage in the territorial sea.  Articles 30 and 31 respectively cover non-compliance with warships of the laws and regulations of a coastal State concerning passage through the territorial sea, and flag State responsibility for any loss or damage to a coastal State resulting from the non-compliance by warships with the laws and regulations of the coastal State concerning passage through the territorial sea.  Put simply, therefore, the Convention states that it says nothing about the immunities of warships in the territorial sea (Article 32 falling within Part II of UNCLOs dealing with the legal regime of the territorial sea – despite the provision’s blanket terms another provision does exist (Article 95) concerning the immunities of warships on the high seas), still less about the immunities of warships in internal waters (which no provision of UNCLOs covers), leaving the matter to be dealt with elsewhere.

In any event, Professor Happold’s whole post is worth considering.

Weekday News Wrap: Tuesday, November 20, 2012

by An Hertogen

Journalists’ Guide to National Security Law

by Deborah Pearlstein

Just in time for the holidays, the American Bar Association and Northwestern’s Medill School of Journalism are releasing a volume of essays geared toward folks who work on or write about or teach national security and foreign policy, but need a primer on the relevant law. National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers aims for a just-the-facts account of where the law sits, and covers everything from the basics of U.S. separation of powers and international law in the courts to special issues in targeting, military commissions, cyber law, classification, piracy, etc. The table of contents, bipartisan list of authors, and ordering info are available here. I’ve got a chapter on international law in the U.S. courts, but OJ readers I suspect will recognize many of the authors from recent articles and past guest posts here.

Obama Centers (Rohingya) Citizenship in Burma

by Peter Spiro

President Obama’s visit to Burma/Mynamar has centered the status of the country’s Muslim minority Rohingya community which has been denied Burmese citizenship notwithstanding their historical presence in the country. (The issue gets a lot more coverage in the Muslim world than in the West.) Obama’s speech today welcomed recent steps by the Burmese government “to address the issues of injustice and accountability, and humanitarian access and citizenship.” Obama then focused on citizenship at length:

Every nation struggles to define citizenship. America has had great debates about these issues, and those debates continue to this day, because we’re a nation of immigrants — people coming from every different part of the world. But what we’ve learned in the United States is that there are certain principles that are universal, apply to everybody no matter what you look like, no matter where you come from, no matter what religion you practice. The right of people to live without the threat that their families may be harmed or their homes may be burned simply because of who they are or where they come from.

Only the people of this country ultimately can define your union, can define what it means to be a citizen of this country. But I have confidence that as you do that you can draw on this diversity as a strength and not a weakness. Your country will be stronger because of many different cultures, but you have to seize that opportunity. You have to recognize that strength.

I say this because my own country and my own life have taught me the power of diversity. The United States of America is a nation of Christians and Jews, and Muslims and Buddhists, and Hindus and non-believers. Our story is shaped by every language; it’s enriched by every culture. We have people from every corners of the world. We’ve tasted the bitterness of civil war and segregation, but our history shows us that hatred in the human heart can recede; that the lines between races and tribes fade away. And what’s left is a simple truth: e pluribus unum — that’s what we say in America. Out of many, we are one nation and we are one people. And that truth has, time and again, made our union stronger. It has made our country stronger. It’s part of what has made America great.

We amended our Constitution to extend the democratic principles that we hold dear. And I stand before you today as President of the most powerful nation on Earth, but recognizing that once the color of my skin would have denied me the right to vote. And so that should give you some sense that if our country can transcend its differences, then yours can, too. Every human being within these borders is a part of your nation’s story, and you should embrace that. That’s not a source of weakness, that’s a source of strength — if you recognize it.

He concluded: “we have an expression in the United States that the most important office in a democracy is the office of citizen — not President, not Speaker, but citizen.” (Though it got lost in the campaign, this picks up on Obama’s Democratic National Convention acceptance speech, which also included citizenship as a refrain.)

There is a very territorialist approach here (“every human being within these borders”), not so surprising out of the super-strong American tradition of jus soli. That’s also consistent with an emerging international law perspective on these questions, which sees habitual residence as giving rise to a right of access to citizenship. The Rohingya situation in Burma is exceptional in rejecting this norm (the Bedoons in Kuwait and Nubians in Kenya are other examples).

But Obama didn’t seem quite willing to turn to international law as the source of an obligation on this score.  “Only the people of this country ultimately can define your union, can define what it means to be a citizen of this country.” That’s out of the old playbook in which nationality is a matter ultimately of sovereign discretion. He was more in a “leading by example” posture than a tougher one under which Burma has no choice but to fall in line. Leave the latter argument to the human rights heavyweights.

Weekday News Wrap: Monday, November 19, 2012

by An Hertogen

Upcoming Events: November 18, 2012

by An Hertogen

Upcoming Events

  • On January 18-19, 2012, the Sheffield Centre for International and European Law is organizing a workshop entitled “Doing Law Beyond the State: Research Methodologies in Comparative, EU and Public and Private International Law”. The program and registration are online.

Calls for Papers

  • The seventh annual International Graduate Legal Research Conference will be held on April 8-9, 2013 at King’s College London. Abstracts of maximum 300 words should be submitted online by December 17, 2012.
  • The Editorial Board of the Cork Online Law Review is currently seeking submissions for the 12th Edition which is due to be published online and in hard copy on the 7th March 2013 by guest of honour, Chief Justice Susan Denham. All submissions should be on a legal topic, and be between 3000-9000 words. Submissions are also welcome in Irish, French and German. Book reviews and case notes will also be considered. There is a medal for the overall best submission, with an accompanying cash prize of €300. There is also a medal for best non-English submission. The closing date for submissions is December 7, 2012. All interested parties should submit their articles and enquiries to John Casey, Editor-in-Chief (editor [at] corkonlinelawreview [dot] com)
  • The New Zealand Yearbook for International Law is calling for papers for its 10th volume. The Editors seek short notes and commentaries (3000-7000 words, including footnotes) as well as longer in-depth articles (8000-15000 words, including footnotes) on any issue of public international law. The Editors are particularly interested in receiving submissions that are relevant to New Zealand, Australasia, the Pacific, the Southern Ocean and Antarctica. Submissions should be sent in Word format, and following the NZ Law Style Guide by May 1, 2013.
  • Trinity College, Dublin, is calling for abstracts for its Fifth Annual Law Students Colloquium on February 16, 2013. Abstracts need to be submitted online by December 6, 2012.
  • The Institute for Global Law and Policy (IGLP) at Harvard Law School will convene its first biannual international conference on New Directions in Global Thought. Submissions for papers and panel discussions are due online by March 1, 2013.
  • The Center on Global Legal Transformation, in collaboration with Professor Olivier De Schutter (University of Leuven, Belgium and Visiting Professor, Columbia Law School; UN Special Rapporteur on the Right to Food), will hold a conference on “Governing Access to Scarce, Essential Resources” in New York on June 20-21, 2013. It is calling for proposals by junior researchers on how to govern scarce, yet essential, resources. Memos should be between 5 and 10 single spaced pages and must be submitted by email to the project coordinator, Claire Debucquois, at cd2636 [at] columbia [dot] edu by January 15, 2013.

Journal Announcements

The Goettingen Journal of International Law has released its latest issue, compiling eleven  articles about the precursors to international constitutionalism, especially the development of the German constitutional approach.

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: November 10 – 16, 2012

by An Hertogen

This week on Opinio Juris, we finished last week‘s symposium on the Oxford Guide to Treaties, recently edited by our own Duncan Hollis. Peter Spiro discussed Kal Raustiala’s chapter on NGOs and treaty-making, and argued that we should look beyond traditional treaties to understand the full scope of NGO participation in international lawmaking. A final set of posts discussed the increasing public nature of treaties. Geir Ulfstein argued that treaty law alone cannot answer all the important legal questions that arise as a result of treaty bodies exercising public powers, but needs input from institutional law. Catherine Brölmann’s post also discussed the combination of contractual and institutional elements in constitutive treaties. Geir and Catherine’s posts led Duncan Hollis to reflect on how treaty law can lead to “secondary fragmentation” – fragmentation in the “rules on rules”.  Christian Tams argued that this “fragmentation” indicates the limits of general treaty law which often only provides residual rules or no rules at all.

In our regular posts, Julian Ku questioned whether Argentina’s claim under the UNCLOS against the seizure of its naval training ship had any chance of success. Peter Spiro discussed the status of honorary consuls after Jill Kelley, one of the central figures in the Petraeus scandal, demanded “diplomatic protection” based on her status as Korea’s honorary consul in Tampa. Kevin Jon Heller was appalled by the assumptions of the online “Tell Me How This Ends” game, as all available strategies required a blatant violation of jus ad bellum, and Kristen Boon wrote about a panel on the Responsibility to Protect she chaired during the Canadian Council of International Law conference.

R2P was also the topic of Spencer Zifcak’s article discussed as part of the latest Melbourne Journal of International Law symposium. The article examines the current standing of coercive intervention under the R2P doctrine after Libya and Syria. In his response, Ramesh Thakur pointed to three points missing from the analysis. Thomas Weisz argued that R2P is only an emerging norm and that its enforcement will depend on a confluence of political circumstances and military capacity. Spencer Zifcak’s reply to the comments can be found here.

A second article, by Darryl Robinson, examined why command responsibility had become so complicated, and blamed one early misstep. Ilias Bantekas’ response focused on causality whereas Jens Ohlin proposed to consider command responsibility as both a separate offence and a mode of liabilityDarryl Robinson responded to these comments here. James Stewart wondered whether a failure to punish subordinates could be assimilated to ex post aiding and abetting. Darryl Robinson responded here.

The final article of the MJIL Symposium, by Michelle Foster, argued why Australia’s MOU with Nauru about the processing of refugee applications is at risk of violating the Refugee Convention. Mary Crock agreed with this assessment and discussed the effects that the new arrangements have already had. Susan Kneebone examined the application of principles of state responsibility. Michelle Foster’s response can be found here.

As always, we kept you up to date with a listing of upcoming events and our daily news wrap.

Have a nice weekend!

MJIL Symposium: A Response to Mary Crock and Susan Kneebone by Michelle Foster

by Michelle Foster

[Dr Michelle Foster is an Associate Professor and Director of the International Refugee Law Research Programme in the Institute for International Law and the Humanities at the Melbourne Law School.]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Both Professor Crock and Professor Kneebone, in their respective contributions, raise interesting and important questions about state responsibility in the context of burden sharing/shifting schemes.  Questions surrounding responsibility are vividly raised in the current scheme of transfer of asylum seekers from Australia to Nauru given that the Australian government is determined to maintain the position that once transferred, asylum seekers will be the responsibility of Nauru alone.  This position has been said by both the Australian and Nauruan governments to be supported by the recent passage of the Refugees Convention Act 2012 (Nauru)- an Act that for the first time in Nauruan law establishes a system of refugee status determination, including merits and judicial review.  Notwithstanding this, there is reason to believe, as does Crock, that ‘the entire scheme is a paper façade for a system that will be run by Australians and for Australia’.  The very fact that the Nauruan Immigration Regulations 2000 now recognize a special visa category entitled the ‘Australian Regional Processing’ visa supports the notion that at the very least the Nauruan government understands that it is dealing with an Australian problem.  Further, while the Refugees Convention Act 2012 is an important step in establishing a domestic system of RSD in Nauru, as the UN High Commissioner for Refugees, Antonio, Guterres, has noted recently, there is no ‘experience or expertise to undertake the tasks of processing and protecting refugees’ in Nauru.  Given the complexity of modern refugee status determination, including the hundreds of high level appellate decisions in Australia alone elucidating the key elements of the refugee definition, it is implausible to believe that Nauru- a country with a population of 9,300 people – would have the resources to make first level determinations of refugee status or to populate the new refugee status review tribunal without considerable assistance from Australia.

As Professor Kneebone rightly observes, under the principles of state responsibility, states can be jointly and severally responsible for harm.  In the present context this harm may take the form of refoulement if refugees are returned to a risk of persecution due to an inadequate status determination procedure including lack of legal representation, as well as the harm suffered by asylum seekers awaiting status determination and, subsequent to recognition as refugees, resettlement in Australia or elsewhere.

Further, Professor Kneebone notes that responsibility could also be considered at the national level, discussing specifically the duty of care owed by detaining authorities.  In this regard it is also worth noting that while the Australian government has attempted to shield the transfer to and treatment of asylum seekers in Nauru from judicial scrutiny by Australian courts by amending s 198A of the Migration Act, the High Court of Australia has displayed its willingness to scrutinize the substance- not merely form- of executive action.  In M61, the High Court rejected the Minister’s characterization of the refugee status determination system established in Christmas Island as ‘non-statutory’ and outside the operation of Australian domestic law, finding instead that the system was subject to judicial review by Australian federal courts and was required to be operated according to the rules of procedural fairness and in compliance with Australian law.  While asylum seekers have now been removed to a foreign territory- as opposed merely to an ‘excised’ territory- there may nonetheless be interesting questions around the scope of the High Court to review Australia’s actions on Nauru.

In short, Professor Crock and Professor Kneebone have raised some important questions about Australia’s responsibility- both under international and domestic law- that will continue to be debated as Australia’s policies of burden shifting continue to evolve.


MJIL Symposium: A Response to Michelle Foster by Susan Kneebone

by Susan Kneebone

[Susan Kneebone is a Professor at Monash University]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

In her article Associate Professor Michelle Foster argues that there are limits imposed by the Refugee Convention and international law to the circumstances in which states may lawfully engage in transfer arrangements for asylum seekers, euphemistically known as ‘responsibility sharing’. In that and an earlier article,[1] to which French CJ in the High Court in Plaintiff M70 referred with approval,[2] Associate Professor Foster outlined the content of the rights to which both states who engage in ‘responsibility sharing’ must adhere. She said:

the better analysis is that the transferring state must at least consider … rights acquired by the refugee (whether or not status has yet been determined) by virtue of mere physical presence which includes non-discrimination, religious freedom, rights relating to property, access to the courts, rights regarding rationing, the right to elementary education, non-penalisation for illegal entry, freedom from constraints on movement … as well as non-refoulement.[3]

As Associate Professor Foster implies in her updated commentary of her recent article, there are few states within the region which can, or are willing to, provide these rights, in order to satisfy these standards. Associate Professor Foster explains that the new Subdivision on Regional Processing in the Migration Act makes it clear that in order to enter into a cooperative arrangement with another country in the region, Australia does not expect that the other country will adhere to the full set of rights in the Refugee Convention. She observes that Australia has thus ‘legitimated what can only be described as a responsibility-shifting rather than responsibility-sharing regime.’

In my opinion it is possible to push that conclusion and its implications further by reference to broad principles of state responsibility under international law, which have been used recently in other forced migration contexts. For example, in Rantsev v Cyprus and Russia, it was decided that there had been breaches of obligations by both Cyprus and Russia under art 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms that related to the trafficking and death of the Applicant’s daughter. Under art 12 of the International Law Commission’s (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts there is a breach of an international obligation ‘when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character’. The current evidence about the conditions in which asylum seekers are held on Nauru, including delays in establishing processing, and lack of information about ‘durable solutions’, shows that the Australian government, with the apparent acquiescence of Nauru, is creating an atmosphere of extreme uncertainty and stress, leading to incidents of self-harm and mental distress. Could this be regarded as ‘inhuman and degrading’ treatment, or even torture? Further, the principles of state responsibility establish that states can be jointly and severally responsible for harm committed under their ‘watch’. If responsibility sharing in this sense applies, might not states such as Nauru to consider their responsibility as states carefully before entering into bilateral arrangements with Australia?

Interestingly, these principles of state responsibility are recognised in the Expert Panel Report. As Associate Professor Foster correctly indicates, Australia is also ‘at risk of violating wider international human rights obligations including the Convention on the Rights of the Child’.

The issue of responsibility could also be considered at the national levels. The duty of care owed by the detaining authorities to detainees now appears to be well established in Australian law.[4] Might it be argued on tortious principles that either Australia individually or Nauru and Australia jointly owe a duty of care to the detainees on Nauru? On the facts of Ruhani v Director of Police (No 2) it was very clear that Australia controlled the circumstances of detention under the Pacific Plan #1. Under the current arrangements, it seems that Nauru has taken more control of the asylum seekers, which includes the introduction of legislation to enable processing under Nauruan law. Is this tantamount to assuming responsibility under both national and international law for the fate of the asylum seekers on its territory?

[1] Michelle Foster, ‘Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek Protection in Another State’ (2007) 28 Michigan Journal of International Law 223.

[2] M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 183 (‘M70’).

[3] Foster, above n 1, 417 (citations omitted). Note: This was a view that the majority the High Court appeared to share in M70 because it was consistent with the criteria in the then s 198A(3) of the Migration Act.

[4] S v Secretary, Department of Immigration (2005) 143 FCR 217.


MJIL Symposium: A Response to Michelle Foster by Mary Crock

by Mary Crock

[Mary Crock is Professor of Public Law at the University of Sydney]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Although Australia identifies as a member of the United Nation’s ‘Western European and Others’ Group (‘WEOG’), it has now enacted laws that place it much more comfortably as an Asian nation. Unlike the WEOG countries, few Asian nations are party to the Refugee Convention (‘Convention’), or to any of the major human rights conventions other than the Convention on the Rights of the Child. Most countries in this region understand and (generally) conform with the non-refoulement obligation enshrined in s 33 of the Convention, but they will not entertain the notion that refugees on their territories enjoy any economic or social rights. The presence of refugees is tolerated at best. At worst they are treated as ‘simple’ illegal migrants and subjected to detention, harassment and discrimination.

Relying on the recommendations of a committee that notably did not include anyone with legal expertise, the Labor government has now moved to create a regime that Associate Professor Foster demonstrates is decidedly un-WEOG. It is squarely at odds with all but the most basic tenets of refugee and human rights law. Non-refoulement is the only principle of refugee law acknowledged in express terms. It is a regime that reifies the people in respect of whom the non-refoulement obligation is owed by denying in language that asylum seekers have any rights or agency in the protection process. The protection of affected refugees has become a privilege to be granted at the absolute (non-reviewable and non-compellable) discretion of the Minister for Immigration.

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MJIL Symposium: The Pacific Solution Mark II: Responsibility Shifting in International Refugee Law

by Michelle Foster

[Dr Michelle Foster is an Associate Professor and Director of the International Refugee Law Research Programme in the Institute for International Law and the Humanities at the Melbourne Law School.]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

The need for international co-operation to address the challenge of refugee flows is uncontroversial in principle: it is recognised in the Preamble to the Convention relating to the Status of Refugees (‘Refugee Convention’), in regional refugee treaties and in the work of the United Nations High Commissioner for Refugees (UNHCR). However, too often states have relied on the notion of international co-operation to engage in what is more accurately understood as burden-shifting rather than burden-sharing arrangements. In my article I argue that while the Refugee Convention does not explicitly authorise nor prohibit the transfer of refugees between states party to the Convention, it imposes limits on the extent to which states may lawfully engage in responsibility sharing regimes. Drawing in particular on the High Court of Australia’s decision in M70/2011 v Minister for Immigration and Citizenship (‘M70’), I outline the content of the constraints imposed at international law, including the need for all parties to an arrangement to be Refugee Convention parties, and the obligation on a transferring state to ensure that non-refoulement will be respected, which in turn requires that the receiving state has an adjudication procedure in place to assess refugee status, that the receiving state guarantees access to that system, and that the receiving state interprets the Refugee Convention in a manner that respects the ‘true and autonomous’ meaning of the refugee definition contained in art 1A(2) of the Refugee Convention. In addition, those rights already acquired by a refugee by virtue of physical presence in the sending state (for example rights to education, religious freedom, and access to the courts) must be respected in the receiving state.

Since publication of this article, the Australian government has moved swiftly to implement the ‘disincentives … to actively discourage irregular and dangerous maritime voyages to Australia for the purposes of claiming protection or seeking asylum’ recommended by its Expert Panel in August 2012. In order to do so it was necessary to amend the Migration Act 1958 (‘Migration Act’) to remove the protections which the High Court relied upon in M70 to invalidate the declaration concerning Malaysia. In my view the amendments to the Migration Act effected by passage of the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (‘Act’), and the subsequent transfer of putative refugees from Australia to Nauru, place Australia at risk of violation of the Refugee Convention. Before outlining my core concerns I make the initial observation that while there is considerable emphasis on Nauru constituting a ‘regional processing country,’ there is nothing regional about the current arrangements. They are not implemented pursuant to a wider regional agreement (in contrast for example to the Dublin Regulation in Europe), nor do they entail any reciprocity since Nauru has no refugee intake other than that resulting from implementation of the Memorandum of Understanding (‘MOU’) with Australia.

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Weekday News Wrap: Friday, November 16, 2012

by An Hertogen

MJIL Symposium: A Response to James Stewart by Darryl Robinson

by Darryl Robinson

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

This post is part of the MJIL 13(1) symposium. Other posts in this series can be found in the related posts below.

I am very grateful for James Stewart’s comments on “How Command Responsibility Got So Complicated”. Professor Stewart and I are engaged in similar projects (criminal law theory and international criminal law (‘ICL’)) and immersed in similar literature, so our discussions are always very helpful to me, even though we at times reach different conclusions. Professor Stewart raises several interesting points, and I cannot quite do justice to all of them. I offer the following thoughts on the main points.

As a preliminary point, Professor Stewart rightly notes that people at the Tribunal had done a frenzied review of the relevant literature and so were at least aware of these issues. I take that point very much. Academics are often quick to criticise courts and institutions for their alleged failures to consider this or that issue, when perhaps the relevant actors were in fact deeply aware of it but chose not to elaborate on it given the hundred other priorities they had to attend to. I also sympathise with judges, who are either criticised for failure to elaborate on theoretical underpinnings, or alternatively are criticised for their wordy, theoretical decisions. For precisely these reasons, I ‘emphatically acknowledged’ that the Tribunals were operating in a pioneering phase, dealing with countless questions and constructing doctrinal rules from diverse authorities, and hence could not give detailed consideration to every fine point.[1]

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MJIL Symposium: A Response to Ilias Bantekas and Jens Ohlin by Darryl Robinson

by Darryl Robinson

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

This post is part of the MJIL 13(1) symposium. Other posts in this series can be found in the related posts below.

I am delighted to participate in this online symposium, this time at the receiving end. The emergence of online symposia is a commendable innovation which I am eager to support. When academic conversation is carried out through journal articles, the rhythm is glacially slow. Years pass between argument, counterargument and response. Online symposia provide a rapid cycle of appraisal, critique, response and clarification, both accelerating and deepening our understanding.

In this instance I am doubly delighted, as I literally cannot imagine a more qualified group of reviewers on this topic. Ilias Bantekas is one of the most prominent authorities on command responsibility. I relied considerably on his insightful and thoughtful works on command responsibility as well as his valuable treatise on international criminal law (ICL).  Jens Ohlin and James Stewart are both bringing the rigour of criminal law theory to ICL, and doing so in an ambitious, exciting, open-minded way that does not simply export national concepts.  I will address the comments by Professor Bantekas and Professor Ohlin here, and address James’ comments separately.

My argument — that the discourse on command responsibility has slowly tied itself into unnecessary knots — was not necessarily one that was guaranteed a warm reception in the ICL community. I am therefore triply delighted, in that both Professor Bantekas and Professor Ohlin seem largely convinced about my central points: that an early misstep in Tribunal jurisprudence led to an internal contradiction, and that later efforts to deny or, subsequently, to solve the contradiction, have led to increasingly elusive or complex assertions about the nature of command responsibility (eg, it’s a mode of liability, a separate offence, it’s both, it’s neither, etc).

In my article, my prescription is that by reversing the first misstep and accepting a causal contribution requirement, we can reconcile the law with the culpability principle. The existing general category of accessory liability accurately conveys the commander’s responsibility, and we don’t need to invent obscure, vague, hybrid or variegated descriptions of the nature of command responsibility. Professor Ohlin and Professor Bantekas both move to the next question, which is a normative assessment from a legislator’s perspective – what we might do with a blank canvass.

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MJIL Symposium: A Response to Darryl Robinson by James Stewart

by James G. Stewart

[James Stewart is an Assistant Professor at the University of British Columbia, Faculty of Law. He is currently undertaking a Global Hauser Fellowship at New York University School of Law.]

This post is part of the MJIL 13(1) symposium. Other posts in this series can be found in the related posts below.

It is a pleasure to be invited to comment on Professor Darryl Robinson’s excellent new article How Command Responsibility Got So Complicated. His meticulous research has, once again, advanced our understanding considerably. Indeed, this particular article is but the most recent manifestation of Professor Robinson’s groundbreaking commitment to marrying criminal theory and international criminal doctrine in ways that shed new light on dilemmas that have plagued scholars and practitioners for too long. In this piece, he focuses on the much-disputed physical contribution of the failure to punish limb of superior responsibility. Some say that a superior can be convicted of genocide, for example, for failing to punish acts of her subordinates who perpetrated the crime, but Professor Robinson joins others who protest that this violates the principle of culpability. How can you be held responsible for a crime to which you did not contribute? Conversely, those who argue that failures to punish can be re-imagined as a separate conduct-type crime stripped of consequences to overcome the participation problem ignore that international law does not support that reading. Instead, Professor Robinson concludes that subsuming superior responsibility within everyday notions of accessorial liability offers a more elegant solution.

I feel compelled to start my review of the piece with a confession of sorts. In my former incarnation as an Appeals Counsel at the International Criminal Tribunal for the former Yugoslavia (‘ICTY’), I had a hand in formulating the Prosecution’s position on superior responsibility in a range of the cases that are key to Professor Robinson’s argument (Hadžihasanović, Orić, and Halilović). In part, I admit this in order to disclose a potential impurity in my views on the topic (although, for balance, my own views were different from the position ultimately adopted by the Prosecution in these cases, contrary to the conclusion ultimately reached by the Appeals Chamber that ruled on them, and I may have changed them again since reading Professor Robinson’s provocative article). For present purposes, though, this experience is also germane since it leads me to think that Professor Robinson might be too quick in arguing that the ICTY has not wrestled with these issues; to the contrary, all sides were engaged in a frenzied review of much of the literature Professor Robinson cites in an attempt to deal with precisely these problems, although no one came close to addressing the topic with anything approaching the sophistication Professor Robinson now offers. Sometimes an absence of judicial reasoning just conceals issues too complex to articulate.

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MJIL Symposium: A Response to Darryl Robinson by Jens Ohlin

by Jens David Ohlin

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

This post is part of the MJIL 13(1) symposium. Other posts in this series can be found in the related posts below.

Professor Darryl Robinson is to be commended for untangling what has to be one of the most tangled webs in international criminal law theory. The settled jurisprudence on command responsibility is anything but settled; it is contradictory, confusing, and full of conclusory statements and pronouncements that don’t hold water.

With Professor Robinson, I’ve viewed with suspicion the recent trend toward arguing that command responsibility is a form of omission liability, or even a separate offence. Regardless of whether one goes the full route and declare it a separate offence, this basic idea is the same: that command responsibility represents a conviction for dereliction of duty, for failing to live up to the demands of the law on the part of the commander, such as punishing subordinates. Under this argument, command responsibility is not a form of vicarious liability for the actions of subordinates who commit atrocities.

Like Professor Robinson, I have always found this view difficult to square with both the history and contemporary practice of command responsibility. In particular, Re Yamashita certainly reads like a case of vicarious responsibility, in that the military commission charged him with the full force of the atrocities — and executed him for it. If it was just an omission offence, then it is hard to square that with both the rhetoric and result in re Yamashita.

At this point in the analysis, though, I might have some small disagreements with Professor Robinson.

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MJIL Symposium: A Response to Darryl Robinson by Ilias Bantekas

by Ilias Bantekas

[Ilias Bantekas is Professor of Law at Brunel University in London.]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Causality is central in the operation of criminal attribution in all legal systems. It makes sense of course that liability for particular conduct exists where it is proven that it caused the harmful outcome which constitutes the actus reus of an offence. Causation is the fundamental link between conduct and outcome and is as a result the basis of liability. One would have thought that since the doctrine of causation emerged from domestic criminal justice systems, its transplantation to the various forms of liability under international law would have followed this rationale. Instead, as Professor Robinson aptly points out, it has been disregarded as irreconcilable with certain contours of the command responsibility doctrine. It is thus claimed by those opposed to its application that a commander who fails to punish his subordinates incurs command responsibility not because his failure to repress caused the commission of crimes by his subordinates. Rather, a commander’s pre-existing duty to punish suffices to hold him criminally liable irrespective of any direct or even indirect harm caused as a result of his inaction.

I have to admit that although I did give the matter some consideration in chapter 4 of my international criminal law textbook, I failed to give it the attention it desperately required. Logic dictates that a commander who fails to punish subordinates that committed a serious crime can only incur liability under two distinct strands: a) for his omission as such; and b) for subsequent harm directly caused by his omission. The first strand does not constitute a crime under international law nor an independent form of international criminal liability. It is no doubt a dereliction of duty under national military law and may conceivably be upheld as an aggravating circumstance in respect of another international crime. The second strand in my opinion is the one found in all those provisions dealing with command responsibility, from art 7(3) of the ICTY Statute to art 28 of the ICC Statute. If causality is not required for failing to punish subordinate criminality, then what exactly is the offence for which the commander is liable? It is inconceivable that the doctrine of command responsibility emerged one evening wholly disassociated from the criminal law theory of the civil law and common law traditions, both of which require causality for the attribution of liability. This does not mean that a commander who fails to punish is absolved from all liability. We have already stated that he may incur liability for dereliction of duty under national law. Moreover, his international liability may be engaged if as a result of his failure his subordinates are encouraged to commit further crimes and in fact do so. Finally, the international community may, if it views this to be a significant issue, discuss the possibility of establishing a new failure to punish offence under international law that does not require a causal link to further crimes. This, however, will open up a plethora of issues that no one is keen to touch, including a reappraisal of the foundations of command responsibility itself.

Weekday News Wrap: Thursday, November 15, 2012

by Jessica Dorsey


MJIL Symposium: How Command Responsiblity Got So Complicated

by Darryl Robinson

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

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Much has been written about command responsibility. In my article, I argue that views on the nature of command responsibility have become unnecessarily obscure and convoluted, and that the problem flows from an early misstep in the jurisprudence. If we revisit the first misstep, a simple and elegant solution is available.

Famously, early Tribunal jurisprudence concluded that the ‘failure to punish’ branch of command responsibility is irreconcilable with a contribution requirement. It therefore rejected any requirement that the commander’s dereliction contributed to core crimes. This however generated a contradiction, because Tribunal jurisprudence (1) recognizes the culpability principle, whereby causal contribution is necessary to share in liability for a crime and yet (2) uses command responsibility to convict commanders of core crimes without causal contribution.

Subsequent efforts to deny the resulting contradiction, and later efforts to avoid the contradiction, have spawned many inconsistent, complex and convoluted claims about command responsibility. These include the descriptions of command responsibility as responsibility for-the-acts-but-not-for-the-acts, as a ‘sui generis’ hybrid whose nature has not been explained, as neither-mode-nor-offence, or as sometimes-mode-sometimes-offence. Many such descriptions are elusively vague, and necessarily so, because clarity would reveal the contradiction.

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“Tell Me How This Ends” and the Jus ad Bellum

by Kevin Jon Heller

I have been having an interesting twitter exchange with Ben Wittes about an online “Choose Your Own Adventure” game created by the Truman National Security Project.  The game, which is entitled “Tell Me How This Ends,” asks you to decide how the President of the United States should respond to news that Iran has accumulated enough enriched uranium to build a nuclear weapon.  I described the game as “appalling” on twitter, pointing out that the game gives you only two choices: a unilateral attack on Iran’s nuclear facilities, or a multilateral attack on Iran’s nuclear facilities.  In other words, the game requires the use of military force; additional diplomacy, much less justified skepticism about Iran’s intentions, is not an option.

Ben rightly responded that the game is trying to make a progressive point: that the use of force against Iran is likely to have significant negative consequences. In that respect, the game deserves credit.  But I still have a problem with the fact that the game requires the player to launch an attack that blatantly violates the jus ad bellum.  Here is how the game frames the scenario (emphasis added):

“During the campaign, you promised to establish a red line: If Iran accumulated enough medium-enriched uranium—that’s 20% enrichment—for a single nuclear bomb, the United States would retaliate militarily.

Intelligence now indicates that your red line has been crossed.”

The word “retaliate” is misleading, for an obvious reason: Iran has not attacked the U.S. or anyone else in the scenario.  Indeed, Iran has not even threatened to attack the U.S. or anyone else in the scenario.  The President’s attack, therefore, is pre-emptive, not retaliatory.

That misdescription is bad enough.  Worse still, the game requires the player to launch a pre-emptive military attack against Iran even though the scenario openly acknowledges that Iran has not yet decided to build a nuclear weapon and would need at least three years to actually build one:

Given Iran’s current capabilities, reasonable estimates suggest that if Iran’s leaders decided to build a nuclear weapon, it would take them at least a year to build, and would take two more years to create a warhead that could deliver the nuclear weapon via a missile to foreign countries.

Well intentioned or not, then, the game validates a profoundly reactionary understanding of the right of self-defense under Article 51 of the UN Charter.  Attacking a state that has enriched uranium but has not decided to build a nuclear weapon and would need years to actually build one is not self-defense.  It is an act of aggression.

Petraeus Scandal and International Law: The Honorary Consul

by Peter Spiro

Everyone else has a piece of this reality show, so why not international law? It turns out that Jill Kelley (for those of you not keeping score, here’s the roster) is the honorary consul of Korea in Tampa. She’s now looking to use the status defensively. From USA Today:

Jill Kelley, the socialite whose complaint to the FBI began the unraveling of the David Petraeus affair, has called police several times in the last few days, trying to invoke purported “diplomatic protection” to keep the media and public away from her Tampa home.

“You know, I don’t know if by any chance, because I’m an honorary consul general, so I have inviolability, so they should not be able to cross my property. I don’t know if you want to get diplomatic protection involved as well,” Kelley told a 911 dispatcher, who agreed to pass the information along to police.

Guess again. The status of honorary consuls is governed by chapter 3 of the Vienna Convention on Consular Relations. Her property is clearly not inviolable; article 31 does not apply to honorary consuls. As for the host government’s duty to protect, article 59 provides:

Protection of the Consular Premises

The receiving State shall take such steps as may be necessary to protect the consular premises of a consular post headed by an honorary consular officer against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.

Unlike other provisions relating to honorary consuls, this one isn’t limited to “official acts”, and having all those reporters on your lawn is certainly dignity impairing. But it’s unlikely that her house qualifies as “consular premises,” which the Convention defines in article 1 as buildings “used exclusively for purposes of the consular post.”

Kelley’s immunity under the VCCR is otherwise limited to official acts. Does that mean Kelley doesn’t have to answer for slip-and-falls during a cocktail parties hosted in her capacity as Korea’s envoy? I wonder if the case will cast a small spotlight on the status. There are scores of honorary consuls out there (here’s a list of a couple of dozen for Philadelphia). Maybe there’s something more to it than special license plates and social cachet.

MJIL Symposium: A Response to Ramesh Thakur and Thomas Weiss by Spencer Zifcak

by Spencer Zifcak

[Spencer Zifcak is Allan Myers Professor of Law and Director of the Institute of Legal Studies at the Australian Catholic University.]

This post is part of the MJIL vol13(1) Symposium. Other posts in this series can be found in the related posts below.

I begin this response by acknowledging the two commentators. Ramesh Thakur and Tom Weiss are, together with Gareth Evans, the pre-eminent writers in the field — as well as each having played formative role in the creation of the Responsibility to Protect (‘R2P’) doctrine in the first place. So, it is a privilege that both have chosen to write a commentary on my article and it is my pleasure now to respond.

Plainly, Professor Thakur and I agree on his four summative points, so there is no need for me to comment further on them. He does, however, point to three matters he believes I have missed, so, let me say something about each.

Professor Thakur observes that, in the Syrian case, a perverse incentive exists for the Syrian rebels to respond brutally to governmental repression in order to internationalise the conflict and thereby encourage external intervention on their side. I had neither seen any prior commentary to this effect nor had this occurred to me. So, I’m grateful for the observation.

My only reservation about it is that it does seem to me difficult to make any valid, general comment about how the rebels are thinking, and why they are acting in the way that they are, because the rebel cause is so divided. As Hussein Agha and Robert Malley note in a recent article in the New York Review of Books, the opposition is an eclectic assortment of ‘Muslim Brothers, Salafis, peaceful protesters, armed militants, Kurds, soldiers who have defected, tribal elements and foreign fighters’. And then there is Al-Qaeda. So, I accept completely that some parts of the rebel leadership will be angling for external intervention but I’m not at this stage sure which ones and how representative they are. Further, if brutality and crimes against humanity are part of a rebel strategy, it does seem to be counter-productive. It is clear that international support for the rebel cause has waned in direct proportion to the increasing number of reports emerging from Syria of rebel atrocities. And so has support within Syria itself. If a vote were taken of Syrians now, it is by no means clear that the rebels would prevail over the regime.

Professor Thakur then refers to the existence of the Sunni-Shi’a split in the country and in the region. I don’t think I missed this one but may not have made it as explicit as it should be. The tragedy within Syria is that initial calls for democratic reform have morphed into a fully-fledged civil war on Sunni-Shi’a lines. And Professor Thakur is right to point to the fact that the Sunni-Shi’a battle has profound regional implications as well. Again, tragically, the civil war has drawn influential regional actors into the fray, so much so that the Syrian conflict already appears, at one level, to be a proxy war between Iran/Iraq on one side, and the Saudis, Qataris and allies, on the other. This is one critical factor that militates against any form of external intervention, as any intervention will alienate significant regional powers with unpredictable and inevitably adverse consequences both ways.

Professor Thakur points to my failure to discuss the Brazilian ‘Responsibility while Protecting’ (‘RWP’) proposal. He is right. I didn’t. I footnoted it and that is all. There were two reasons for this. First, I’ve read it many times and have not found it particularly helpful. In my view, it is not much more than a statement of the obvious, in the wake of the mistakes made by the international community in the Libyan case. Secondly, one of my major objectives in the article was to encapsulate the standing of R2P following Libya and Syria. I did that in a series of propositions at the end of each section. These propositions in part resemble those in the Brazilian document but are more specific, detailed and, I hope, more helpful. So, I didn’t want to muddy these waters by setting out to compare and contrast the two encapsulations. And since one was my own, obviously I chose to give it most prominence. Professor Thakur is right, however, to point out that the Brazilian concept note has provoked some new thinking. So, I will take that as an encouragement to explore the discussion while maintaining my reservations about the Brazilian note itself.

Professor Thakur points to two key elements in the RWP proposal that he believes are significant. The Security Council should ensure that it sets in place a monitoring and review mechanism when any intervention is commenced so as to ensure compliance with the Council’s resolutions. It should also formulate an agreed set of criteria on the basis of which to debate and mobilise consensus upon an R2P military intervention.

The second one is interesting. Gareth Evans has been a tireless advocate of the Security Council’s adoption of such prudential criteria and I am in wholehearted agreement with him on this. I note that Professor Thakur too, has joined Evans in a recent letter in which both support the deployment of the prudential criteria developed in the International Commission on Intervention and State Sovereignty (‘ICISS’) report, the High-Level Panel report and Kofi Annan’s In Larger Freedom. It was in this context that I wrote the sentence that appears to have surprised Professor Weiss. In the article, I wrote that ‘judgments as to whether and when to intervene are likely in the foreseeable future to be made case by case rather than according to predetermined, universally applicable principles’. This was a reference to my earlier discussion about the desirability of adopting prudential criteria. There is substantial opposition, not least amongst the P-5 to the Security Council’s adoption of the criteria, but one can always hope.

I note Professor Weiss’s comment that applying universal principles may have a detrimental effect. I’m not sure whether he was referring here to Evans-Thakur prudential criteria or something else. But if it was in relation to the criteria, I think his criticism is misconceived. It is precisely to avoid the prospect of double-standards that I support the criteria’s application. The South would have far more confidence that they would not be subject to neo-imperial meddling if they could be assured that the relevant criteria including necessity, proportionality and balance of consequences were consistently and openly discussed and applied when decisions as to intervention were being made.

He may be right on another point, however. Yes, it’s true, lawyers love criteria. We think they’re really useful as a means of structuring constructive deliberation and decision-making. But political scientists? Perhaps we are as different as Weiss surmises.

On another matter, Professor Weiss is clearly right. Humanitarian impulse rather than humanitarian imperative is the better descriptor. I will use it. But his last sentence rather puzzles me.

On what basis can it properly be said that if Assad leaves Syria, his exit will have in part been attributable to the R2P norm? Apart from the occasional and cursory reference to R2P in Security Council resolutions decrying the regime’s failure to protect its people from atrocity, for reasons I’ve outlined in some considerable detail, the Syrian case is passing R2P by. Neither the regime, nor its rebel opponents, nor the major regional and international players, seem to be concerned with it at all. Each pursues its agenda with absolute ruthlessness.

R2P is a noble doctrine. For the time being, however, it will have to play on a different and less contested field.

MJIL Symposium: A Response to Spencer Zifcak by Thomas Weiss

by Thomas G Weiss

[Thomas G Weiss is a Presidential Professor of Political Science at The CUNY Graduate Center and Director of the Ralph Bunche Institute for International Studies]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Professor Spencer Zifcak’s article on the international reactions to Libya and Syria is thorough and thoughtful, and well worth reading for the treasure trove of documentation. But I was frankly surprised by his unsurprising conclusion that ‘judgments as to whether and when to intervene are likely in the foreseeable future to be made case by case rather than according to predetermined, universally applicable principles’.

How else?  Obviously, political scientists and lawyers have quite different expectations.

Undoubtedly the loss of life and suffering is much higher in Syria than in Libya, and it has gotten worse in the time taken to get Professor Zifcak’s article into print. The death toll has risen fivefold — now approaching 25 000 — and the joint UN-Arab League envoy Kofi Annan has resigned from his ‘mission impossible’, an assignment that trouble-shooter Lakhdar Brahimi has assumed.

The paralysis amidst atrocities and killings in Syria suggests, in case there was any doubt, that robust action in one crisis does not necessarily foreshadow similar efforts elsewhere. Inconsistency is not only the hobgoblin of little minds but also the proverbial bottom line for political decision-making. Rhetoric is one thing, tough decisions are another. Talk is cheap, action is not.

Indeed, to expect anything else is to play into the hands of the usual spoilers in the global South — the Nicaraguas and Cubas, the Zimbabwes and Sudans — who point to the double standard of the Responsibility to Protect (‘R2P’) as neo-imperial meddling.  They, of course, would prefer the old single standard for mass atrocities and do nothing because state sovereignty is sacrosanct and includes the license for mass murder. The best should never be the enemy of the good — for R2P or anything else.

In describing the present global governance of mass atrocities, humanitarian ‘impulse’ is more accurate than humanitarian ‘imperative’. The latter entails an obligation to treat victims similarly and react to all crises consistently — in effect, to deny the relevance of politics, which consists of drawing lines and weighing options and available resources. Yet humanitarian action remains desirable not obligatory. The humanitarian impulse is permissive; the humanitarian imperative is peremptory. Similarly, R2P is not a peremptory obligation but a desirable and emerging norm whose consolidation can result in occasional enforcement when the politics are right.

Politics and military capacity ultimately determine whether, when, where and why to protect and assist war-affected populations. However shocking to the conscience a particular emergency and however hard or soft the applicable public international law, when political will and a military capacity exist, humanitarian space will open and war victims will be assisted and protected. In Libya the moral, legal, political, and military dimensions dovetailed under the R2P rubric. Rather than speaking truth to power, the value-added of R2P was speaking truth with power. And if Assad leaves Syria, it will in part be attributed to the evolving power of the R2P norm.

MJIL Symposium: A Response to Spencer Zifcak by Ramesh Thakur

by Ramesh Thakur

[Ramesh Thakur is Director of the Centre for Nuclear Non-proliferation and Disarmament (CNND) in the Crawford School, Australian National University and Adjunct Professor in the Institute of Ethics, Governance and Law at Griffith University.]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Professor Spencer Zifcak has written an insightful article on a topic that is important, timely and will not go away. His analysis and conclusions are judicious, circumspect, balanced and, in consequence, stand the test of time since the article was written. I would like to make four points in summary and add three items to his analysis.

First, the use of force, no matter how benevolent, enlightened and impartial in intent, has empirical consequences and shapes the struggle for power and helps to determine the outcome of that political contest. This is why it is inherently controversial and contentious.

Secondly, the Responsibility to Protect (‘R2P’) is the normative instrument of choice for converting a shocked international conscience into decisive collective action — for channelling selective moral indignation into collective policy remedies — to prevent and stop atrocities. In the vacuum of responsibility for the safety of the marginalised, stigmatised and dehumanised out-group subject to mass atrocities, R2P provides an entry point for the international community to step in and take up the moral and military slack. Its moral essence is the acceptance of a duty of care by all those who live in zones of safety towards those trapped in zones of danger. It strikes a balance between unilateral interference and institutionalised indifference. But the precise point along the continuum is not easily ascertained in the fog of armed violence amidst chaos and volatility.

Thirdly, R2P was the discourse of choice in debating how best to respond to the Libya crisis. But the R2P consensus underpinning Resolution 1973 in 2011 was damaged by gaps in expectation, communication and accountability between those who mandated the operation and those who executed it. For NATO, the military operations, once begun, quickly showed up a critical gap between a no-fly zone and an effective civilian protection mandate. But back in New York, there was an unbridgeable gap between effective civilian protection, which Brazil, Russia, India, China and South Africa (‘BRICS’) supported, and regime change, which they strongly opposed.

One important result of the gaps was a split in the international response to the worsening crisis in Syria. Both China and Russia, still smarting from the over-interpretation of Resolution 1973, have been defiantly opposed to any resolution that could set in train a sequence of events leading to a 1973-type authorisation for outside military operations in Syria.

Fourthly, the Libya controversy over the implementation of R2P notwithstanding, by 2012 there was no substantial opposition to R2P as a principle or norm — an international standard of conduct.

Continue Reading…

Weekday News Wrap: Wednesday, November 14, 2012

by Jessica Dorsey

MJIL Symposium: The Responsibility to Protect after Libya and Syria

by Spencer Zifcak

[Spencer Zifcak is Allan Myers Professor of Law and Director of the Institute of Legal Studies at the Australian Catholic University.]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

My article on this subject attempts to encapsulate the standing of coercive (Pillar 3) intervention within the framework of the Responsibility to Protect (‘R2P’) following the application of the doctrine in Libya and paralysis with respect to it in Syria. In 2011, the international community was confronted with the prospect that large-scale civilian casualties may occur as a consequence of fighting between government and rebel forces in Libya. The UN Security Council, therefore, was confronted with the dilemma of whether to authorize an intervention to avert what seemed likely to be a humanitarian catastrophe. In this case, the UN Security Council sanctioned an intervention by NATO forces in accordance with the new doctrine. Soon after, the Syrian rebellion took hold and civilians began to be killed and injured in their thousands. In that case, however, the Security Council has been stymied as neither sanctions nor military intervention can be agreed upon. In the article, the Libyan and Syrian cases are analysed with a view to determining why the international community’s response to the two conflicts has been so different and what these differences tell us about the current status and practice of the R2P doctrine. To that end, the article concludes with a series of propositions which summarize my answer to the latter question.

I have recently updated the article to take into consideration the tragic developments in Syria between February, at the time the article was completed, and October this year. In the light of that revision, the propositions contained in the original have been slightly amended. For the purpose of this interchange, therefore, I provide the most recent set as follows:

  • Prior to approving a coercive Pillar 3 intervention, in the interests of national sovereignty and independence, the Security Council will need to be satisfied that every possible diplomatic solution to a crisis has been exhausted. Pillar 3 intervention will occur only as the last resort.
  • Prior to approving a coercive Pillar 3 intervention, the Security Council is likely in future to insist that its objectives be made clear and that its mandate be spelt out with precision.
  • It is highly unlikely that the Security Council will approve a Pillar 3 intervention if its explicit or implicit objective is regime change.
  • Given that a Security Council mandate for a Pillar 3 intervention is likely to have as its principal objective the protection of civilians, it is probable that the Security Council will require that the position of an intervening force be one of strict neutrality as between the contending parties.
  • Before approving a Pillar 3 intervention, the Security Council will need to be clearly satisfied first, that the intervention is likely to achieve its protective objective within the country concerned and, secondly, that it will not result in any wider regional destabilization.
  • A Pillar 3 intervention should, in all aspects, conform to the dictates of international law and in particular international humanitarian law.
  • Where a contemplated coercive intervention runs contrary to the core political or strategic interests of a member of the P-5, it highly unlikely to proceed. This is unless the crimes against humanity committed are so extensive and so grave that no reasoned member could resist the demand the crimes be fought. Even so, the failure of Russia and China to endorse even a very weak Security Council resolution against Syria in the face of clear evidence of the commission of mass atrocities has dispiritingly cast doubt even on that seemingly obvious proposition.
  • However inadequate, engagement in Pillar 3 intervention that excludes action pursuant to Chapter VII of the UN Charter may still be preferable to provoking Security Council gridlock. This is because, as in Syria, the outcome of gridlock may be seen by antagonists to a conflict as an international licence for the commission of further crime.
  • Alternatively, in response to mass atrocities, coalitions of the willing may decide to take action outside the legal framework of the UN Charter. Should this become common, R2P may wither to the great detriment of the international rule of law.

The full article may be accessed here.

Melbourne Journal of International Law, Vol. 13-1: Opinio Juris Online Symposium

by Melbourne Journal of International Law

The Melbourne Journal of International Law is delighted to continue our partnership with Opinio Juris. This week will feature three articles from Issue 13(1) of the Journal. The full issue is available for download here.

Today, our discussion commences with Spencer Zifcak’s article ‘The Responsibility to Protect after Libya and Syria’. Professor Zifcak draws on the disparate responses to the humanitarian disasters of Libya and Syria to examine the current status of the Responsibility to Protect. The respondents to this piece will be Ramesh Thakur and Thomas Weiss.

On Thursday, we continue with Darryl Robinson’s article ‘How Command Responsibility Got So Complicated’. Professor Robinson identifies an initial error in the development of command responsibility jurisprudence — namely, the contradiction generated between the ‘failure to punish’ strand of command responsibility, and its requirement that a defendant causally contribute to a crime — that has lead to confusion about the scope of the doctrine. Ilias Bantekas, Jens David Ohlin and James Stewart will respond to these remarks.

On Friday, our symposium will conclude with Michelle Foster’s contribution, which builds on her article ‘The Implications of the Failed “Malaysia Solution”: The Australian High Court and Refugee Responsibility Sharing at International Law’. The decision of the High Court in M70/2011 v Minister for Immigration and Citizenship invalidated the Australian Government’s attempts to implement a regional agreement with Malaysia for the processing of refugees on the grounds that such arrangements violated legislative requirements that reflected protections under the Convention relating to the Status of Refugees (‘Refugee Convention’). In light of this, Professor Foster’s contribution analyses recent Australian Government amendments to such legislative protections and addresses whether these amendments are consistent with the Refugee Convention. Mary Crock and Susan Kneebone will respond.

We hope that you enjoy participating in the upcoming discussion. We once again thank Kevin Jon Heller and the team at Opinio Juris for the opportunity to host this symposium. For further information about the Journal, the editors may be contacted at law-mjil [at]

Martin Clark, Nuwan Dias and Eamonn Kelly

2012 Editors

Sanishya Fernando

2012 Commentaries Editor

Argentina Threatens to Sue Ghana in the International Tribunal for the Law of the Sea

by Julian Ku

Argentina has opened a new front in its battle with Ghana over a local court order detaining its naval training ship ARA Libertad until Argentina posts a bond for payment on its defaulted sovereign debt.  It is now threatening to sue Ghana in the International Tribunal on the Law of the Sea.

Tomorrow, Tuesday, November 13th, all the deadlines expire for Ghana’s government to lift the embargo, recognizing the Convention on the Law of the Sea,” Argentine Foreign Minister Hector Timerman told reporters in Buenos Aires on Monday.

He said if Ghana did not release the ship, Argentina would be able to take its case to the Hamburg-based International Tribunal for the Law of the Sea the following day.

I suppose the issue will be whether naval vessels have an absolute immunity for a domestic court, even when the sovereign in question (Argentina) has expressly waived its immunity defenses.  I think the law here is far from clear, and that Argentina’s case is far from strong.  Here is Article 32 of the Law of the Sea.

With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes.

That’s all very well as it goes, but it doesn’t answer the question. No doubt there is immunity for warships under customary international law, but there seems little reason to doubt that this immunity can be waived (as Argentina almost certainly did here). Argentina will have to convince ITLOS that customary international law confers an unwaivable immunity to warships. I don’t know what authority it has for that proposition (my own brief review has found none) but it will be interesting to see if they are able to come up with anything.  Maybe someone out there can do the work for ITLOS?

Weekday News Wrap: Tuesday, November 13, 2012

by Jessica Dorsey

The Responsibility to Protect

by Kristen Boon

I recently had the honor of chairing a panel on the Responsibility to Protect at the annual Canadian Council of International Law (CCIL) conference in Ottawa.   The evolving contours of this concept provided for a stimulating exchange between panelists Lieutenant Colonel David Antonyshyn, Dr. Joanna Harrington, and Ryan Liss.  I highlight some of the themes here for broader reflection and comment.

The Responsibility to Protect, or “R2P” as it is know in the business, gives expression to the conviction that it is unacceptable for States to allow gross violations of human rights against their populations.    It is narrow, in that it applies to “genocide, war crimes, ethnic cleansing and crimes against humanity.” Nonetheless, it is a powerful concept in that it recognizes that the international community has a responsibility to prevent these crimes.   Prevention can range from education and public suasion at one end of the spectrum to humanitarian intervention backed by military force at the other.

Military force, of course, is where the real controversy lies, and it is worth recalling that the 2005 World Summit Outcome document condoned the operationalization of the doctrine only within the framework of the UN Charter.   As such, there is little controversy that R2P is primarily a political doctrine that justifies intervention within the existing UN Charter. Whether it could be invoked unilaterally or outside of the UN Charter is the subject of great debate.

R2P has been put to the test these past 14 months.  When the UN Security Council invoked the doctrine in Resolution 1973 on Libya, most concurred this constituted an explicit and robust application of the doctrine, which resulted in the Security Council’s authorization of military intervention.   Nonetheless, within weeks, critics suggested that the intervention had gone beyond the intended Security Council mandate and had become a convenient cover for regime change.  Not long after, as is well known, the situations in Bahrain and Syria began to spiral downwards, and many argued that intervention was again needed and appropriate.  Nonetheless, the Security Council has not garnered enough support to invoke the doctrine since Libya.   China and Russia have used their veto to block Security Council resolutions on Syria with similar R2P language, and it is not clear if and when the Council will endorse the concept again.

One particularly interesting exchange was whether Libya was the highwater mark of R2P.  If one views R2P as equal solely to military intervention this might well be true, at least in the medium term.  Nonetheless, there are some factors that make the Libyan intervention distinctive.   First, Ambassador Shalgam, the Libyan Ambassador to the UN at the time of the Security Council debate, consented to Security Council intervention and called for the UN to stop Gaddafi.   As such, the intervention was invited by an accredited government representative (albeit one who was estranged from Gaddafi at the time of the intervention), which, partially vitiated concerns about violating state sovereignty.  Second, Gaddafi’s remarks about “germs, rats and scumbags” may have constituted genocidal language, which triggered a responsibility to prevent pursuant to the Genocide Convention.  Third, R2P contains a plethora of softer tools including election monitoring (Kenya), radio jamming (Rwanda), and other non-military forms of intervention.   These tools are regularly and effectively employed under the R2P umbrella suggesting that the doctrine is alive and well.

Another dynamic worth highlighting is the growing opposition to R2P by the BRICs.  Professor Joanna Harrington discussed Brazil’s Concept paper entitled “Responsibility While Protecting”   highlighting how a mid-way position has been propagated by Brazil which calls for proportionality and accountability while protecting.   Although this concept paper has generated a lot of discussion, it has not yet taken concrete institutional form. 

Some of the questions arising out of the panel include:

  • What are the alternatives to R2P?  Should regional bodies like the African Union or Arab League step up to play a bigger role?
  • Will R2P be subsumed by related but less charged concepts, such as “the protection of civilians”?
  • Can Brazil’s proposal put in place limits that will effectively curb the invocation of R2P by over-zealous interlopers?
  • Should R2P apply in natural disasters, particularly if the disasters create a pretext for targeting (e.g. punishing or relocating) a particular group?
  • What is the relationship between responsibility, sovereignty and self-determination?  Ryan Liss provides a very interesting account here.

The Oxford Guide to Treaties Symposium: The General Law of Treaties and Its Limits

by Christian Tams

[Christian J. Tams holds the Chair of International Law at the University of Glasgow – School of Law]

Let me start off by saying that to participate in the Oxford Guide to Treaties has been a real privilege: it is a great book that combines theoretical reflection and practical insights. I am particular impressed by the list of treaty clauses included as Part VI. Unlike many other areas of international law, treaty law is a framework to give effect to the expressed will of parties. Of course, there are limits to what parties can agree to – jus cogens being the most important –, but they hardly ever act as real constraints on treaty-making. So any analysis of treaty law has to come to terms with the diversity of treaty practice. And as patterns of practice change over time, the topic itself is not static, but in a state of constant reform. That makes it so interesting.

At the same time, there is a risk – and it is reflected in Duncan’s post, even though I would describe it slightly differently. In many respects, the general law of treaties as laid down in the VCLT cannot ‘tame’, or regulate, treaty practice. Sometimes, this is simply pragmatic and realistic: a general treaty on treaties can only offer residual rules, just as a general document on responsibility will yield to special regimes (as per Art 55 of the ILC’s Articles on State Responsibility). The VCLT implements the lex specialis principle not in one general clause, but within the specific provisions, many of which contain caveats: Art 28 eg provides for non-retroactivity ‘[u]nless a different intention appears from the treaty or is otherwise established’; Art 54 as the opening provision of Part V Section 3 provides (unsurprisingly) that ‘The termination of a treaty or the withdrawal of a party may take place: (a) in conformity with the provisions of the treaty’. The phrase ‘unless the treaty otherwise provides’ is used 14 times throughout the VCLT. The general law of treaties is residual, and unlike in the case of State responsibility, it is a lex generalis that is very often derogated by special rules.

In other areas, the VCLT provides not residual rules, but no rules at all; and as a result, solutions are sought under other regimes of international law. Duncan rightly mentions remedies, which the VCLT treats rather in passing and which are sought and addressed under the law of dispute settlement, the law of responsibility and/or special treaty regimes. Geir Ulfstein’s reference to treaty bodies to me would also seem to be a case in point: a major element of the multilateral treaty process that is not regulated in any detail by the VCLT’s general rules, but by international institutional law. But questions of responsibility for treaty breaches are probably the biggest ‘regulatory gap’: pursuant to Art 73, the VCLT ‘shall not prejudge any question that may arise … from the international responsibility of a State’. As a consequence, the huge field of treaty breaches, which domestic legal systems often regulate as part of the law of treaties/contracts, is to the regime of international responsibility.

The combined effect of the application of the lex specialis principle and of the conscious decisions of drafters not to cover treaty law issues in their entirety is that quite often, answers to questions of ‘treaty law’ will have to be sought outside the VCLT. This does not affect its status as the key legal instrument in the field. But it means that it has to be read and applied (and presumably taught) in conjunction with other legal texts addressing treaty law issues. And it means that more than with other general legal texts (say, the ILC’s texts on State responsibility or on diplomatic protection; or the 2004 Convention on Jurisdictional Immunities of States and Their Property), the primary treaty law rules in their infinite variety will often determine outcomes. And because of this, Duncan should be congratulated on his decision – explained to contributors right from the start of the project – to complement the legal analysis by a long and detailed part on ‘Treaty Clauses’.

The Oxford Guide to Treaties Symposium: Evidence of “Secondary” Fragmentation

by Duncan Hollis

First of all, I need to say thank you to all the contributors to the current symposium on my book, The Oxford Guide to Treaties.  It’s quite common in academic circles to have symposia on “affairs of the day” (and, to be clear, those affairs often trigger very important issues like targeted killing, cyberwar, climate change, the EU fiscal crisis, etc.).  But, I think it’s equally important to step back from time to time and have conversations about the international legal system itself, of which treaty law and practice now forms a large part.  Thus, I’ve greatly appreciated the discussions over the last several days on whether reservations can be severed, the rule(s) of treaty interpretation, the increasing “publicness” of treaty functions, and the role of non-State actors in modern treaty-making.

In reading these posts, moreover, I was struck by how some of them suggest (albeit implicitly) a new way to think about the fragmentation of international law.  To date, we have tended to think about fragmentation in one of two ways.  First, we have the question of “normative” fragmentation, where two rules produced by different legal regimes conflict or compete with each other, meaning that a State has to choose to which rule to give priority.  We normally talk about this as the “trade and . . .” problem where WTO rules have been said to conflict with rules of international environmental law, international labour law, etc.  But, normative fragmentation is not limited to the trade context as witnessed by the question of what to do when UN Security Council resolutions on international peace and security conflict with EU Law in the Kadi case.  Second, fragmentation may also arise where the conflict is not between the rules but who applies them; that is, competition or conflict over which tribunal or court should be authorized to have the final say on which rules apply or what a particular rule means in a given situation.  The MoX case is a paradigmatic example of this inter-tribunal competition, with three different proceedings under three different normative regimes: an arbitral tribunal pursuant to the 1982 U.N. Convention on the Law of the Sea, dispute settlement under the Convention on the Protection of the Marine Environment of the North-East Atlantic, and proceedings before the European Court of Justice pursuant to the European Community and EURATOM treaties.

As I think about the law of treaties, however, I see the potential for a third type of fragmentation within international law, or what I’ll call “secondary” fragmentation.  My basic idea is that fragmentation is not limited to competition and conflict among primary rules, but can also occur with secondary rules.  Here, I’m employing H.L.A. Hart’s famous division of rules into primary and secondary categories.  Primary rules are rules of conduct — telling States and other subjects of international law what they are obligated to do (or not do).  Secondary rules, in contrast, are “rules on rules”, or rules that tell us how to form, interpret, amend, or extinguish primary rules.  When we talk about normative fragmentation, however, almost all the existing discussion has emphasized conflicts and competition among primary rules, e.g., should a WTO rule trump or defer to an international environmental rule?

In looking at the various posts on interpretation and Geir Ulfstein’s post on treaty functions, however, it seems there’s some evidence of a different kind of fragmentation emerging among the secondary rules of international law.  For example, Geir suggests at the end of his post that “Treaty law must be complemented by international institutional law”.  But treaty law and international institutional law are not required by any rule of international law to get along — it’s equally possible that the result produced by the law of treaties (say an interpretation of a treaty constituting an International Organization under VCLT Article 31) and international institutional law (say an interpretation of the same treaty employing the implied powers doctrine) could generate competing or conflicting results with respect to the same primary rule.  Catherine’s post makes this point more descriptively, noting how international institutional law has come to supplant the general law of treaties in the IO treaty context.  As with fragmentation among tribunals or primary rules, however, international law doesn’t tell us if this is the correct result.  Examples of secondary rules that are conciliatory to other secondary rules are relatively rare — although the VCLT does include a few examples with respect to IO treaties in Articles 5 and 20(3).  But, on the whole, the international legal order says little, if anything about whether one set of secondary rules should be accorded priority over another.

Moreover, I don’t think this competition over interpretative rules is an isolated case.  Although The Oxford Guide to Treaties does not explicitly flag this idea of secondary fragmentation specifically, there is evidence of it in several other chapters.  For example, although the VCLT’s rules on material breach purport to function differently than the law of state responsibility, Bruno Simma and Christian Tams’ chapter on remedies for treaty breach makes clear that these two sets of “secondary” rules are in competition with one another (and, moreover, that the law of state responsibility on countermeasures may be winning in the sense that it is those rules not the VCLT provisions on which States currently rely).  Malgosia Fitzmaurice’s chapter makes a similar point about tensions over exceptional circumstances where the law of treaties has doctrines — impossibility, and rebus sic stantibus — that may be threatened by the law of state responsibility’s doctrine of necessity.

The Oxford Guide to Treaties Symposium: Contractual and Institutional Elements in the Treaty Process

by Catherine Brölmann

[Catherine Brölmann is Associate Professor of Public International Law at the University of Amsterdam]

Particular features in the interpretation of constitutive treaties or secondary acts of international organizations reflect the special nature of the law of organizations, which brings both contractual and institutional features in the treaty process.

Following up on posts of Richard Gardiner, who brings up pertinent questions regarding treaty interpretation that are not addressed by the VCLT, and Geir Ulfstein, who points at the increasing publicness of international law ia through the creation of treaty bodies, this post briefly focuses on a phenomenon that is not covered by the Vienna Convention on the Law of Treaties and strictly speaking not by the law of treaties as such. This is the mixing of contractual and institutional elements in international treaty practice.

The Guide to Treaties addresses what is arguably a specific aspect of this combination of contractual and institutional elements, with a chapter on the interpretation of constitutive treaties and acts of international organizations. We find two trends in the interpretation of constitutive treaties or ‘law of the organization’ in general, that stand apart from the standard interpretive approaches in the Vienna Convention: a ‘teleological approach’ to the text, not very common in regular treaty interpretation but akin to traditions in national law of statutory interpretation in an organic, constitutional context; and particular importance attached to the ‘practice of the organization’ as opposed to the practice of the original treaty parties (such accompanied by a corresponding disinterest for the travaux préparatoires and the intention of the original parties).

The claim is that this ‘constitutional’ approach to the law of the organization can be traced to the notion of that law as special and ‘self-contained’ – not in the traditional sense of a particular area of substantive law or lex specialis, but rather as a semi-independent or internal legal order based on specific institutional rules. Constitutive treaties of organizations in fact have been attributed something of a constitutional character (cf the ICJ in 1996), binding member States to a set of coherent internal laws on the organization’s competences, functions and goals. The special character of the law of the international organization as as an internal legal order, semi-closed off from general international law, is also recognized by the Vienna Convention: think for example of the general reservation clause in Article 5, and the role for the competent IGO organ in the acceptance of a reservation provided for by Article 20(3).

The mix of contractual and institutional features which consequently marks the international organization as a legal environment is visible in more areas of treaty practice than just interpretation. The use of an institutional infrastructure for international processes dates back to the mid-nineteenth century, but recent decades show international organizations using in a particularly efficient and self-confident way their institutional mechanisms in order to streamline stages in a treaty-making or law-making process that were traditionally based on individual consent of the contracting parties – for example in the adoption of the text (UNGA), the initial signature subject to ‘ratification’ (ILO) or the inclusion of a treaty text in a binding resolution (UNSC).

This phenomenon falls outside the scope of the VCLT in a very fundamental way, as it moves in and out of the law of treaties framework altogether. In that respect it is different from new trends such as evolutive interpretation or ‘living instrument doctrine’ -, which may be unaddressed by the Vienna Convention, but which are considered to be within the law of treaties paradigm. On the other hand, in the case of interpretation of IGO law, a preliminary question arises as to the applicability of the Vienna Convention to begin with. Are UN Security Council resolutions a form of treaty law or do they amount to ‘international legislation’? Was the 1999 new ‘strategic concept’ of NATO a living instrument interpretation of the 1949 North Atlantic Treaty or a redefinition of powers and competences by an Organization making use of its compétence de la compétence to enact institutional innovation?

The Oxford Guide to Treaties Symposium: Enter Non-State Actors

by Peter Spiro

I’ll join the chorus of praise for my colleague Duncan’s book. It will clearly become the standard reference work in the area. As IL scholarship proliferates, there is a lot of smart money in handbook volumes such as this one. The Oxford Guide to Treaties is a one-stop source for the best thinking on the subject.

Duncan is also to be congratulated for his forward-looking inclusion of a chapter by Kal Raustiala on NGOs and treaty-making. Kal’s entry represents the best kind of writing for the format. It gives the newcomer a parsimonious but informative survey of the subject. For those already engaged on the subject, it has an edge.

Kal argues that states have a self-interest in permitting NGO participation in treaty-making. NGOs provide information in both treaty negotiation and implementation. NGO inclusion pays domestic political benefits, helping to get NGOs on board during the negotiations who are then more likely to turn around and sell the deal back home. When it comes to delicate negotiations, states can have their cake and eat it too, by closing the door on NGOs in informal-informals and the like. Kal describes how NGOs have become more prominent in the treaty-making process. But in his view this rise

should not be viewed as necessarily antagonistic to State interests. Nor does it undermine the centrality of States in international law-making. The roles played by NGOs remain formally subject to State control. This control ranges from the accreditation process, which keeps out the overly radical or insufficiently organized (or just deeply disliked), to the use of informal negotiating venues and forums, which keeps out everyone. Yet this control is used sparingly and, I have argued, often strategically. The reality is that NGOs remain active in a wide range of treaty settings.

I agree that as a formal matter states are still in charge. In theory, they can reject NGO participation. In practice, however, no multilateral regime can succeed without a substantial NGO presence. That’s not just a matter of putting NGOs to work in the service of states. It’s about legitimizing global institutions. The results won’t always be to state liking, either: NGOs are influential in treaty-making, in a way that’s often consequential.

The treaty form works against NGO participation, at least for now. (There is an interesting chapter by Tom Grant on non-state treaty-makers, but his discussion focuses on other territorial creatures – subnational jurisdictions, external territories, and insurgent groups.) When NGOs get involved on the basis of something more like equality, it has made sense to take other institutional routes. Think the Kimberley Process or the Global Fund. There’s a selection error in focusing on treaties as a form of international agreement-making. As a legacy institution, treaties will reflect a lower level of non-state participation than more novel agreement forms. I understand that this is beyond Duncan’s brief. But it’s something to keep in mind as we think about the spectrum of international instruments.

As a bonus to Kal’s chapter, Duncan includes model clauses on the terms of NGO participation (see 673-75). I’m sure that’s something new in a treaty handbook. I expect that future editions of the book will be including more material relating to non-state actors as their power becomes more evident and as the treaty form adapts accordingly.

The Oxford Guide to Treaties Symposium: The Public Character of Treaty Law

by Geir Ulfstein

[Geir Ulfstein is Professor of Public and International Law at the University of Oslo]

Treaty law is increasingly acquiring a public character. One reason is that more and more treaties set up treaty bodies, i.e. organs that are neither formal international organizations nor international courts. Examples are the Conference of the parties (COPs) used in international environmental law, the Antarctic Treaty Consultative Meeting, or the supervisory organs established by human rights treaties, such as the Human Rights Committee.

These bodies may exercise public powers in the form of law-making, executive decisions or enforcement. Treaty law is essential for their creation. But treaty law must interact with international institutional law when it comes to determining the powers of the treaty bodies, as well as the legal status and effects of their decisions. With public powers comes also issues of the effectiveness and legitimacy of their activities.

The law-making powers of treaty bodies represent a move away from ad hoc consensus-based treaty-making. These bodies are permanent fora that may be tasked with law-making. Examples are COPs in environmental treaties empowered to adopt new protocols, such as the Kyoto Protocol, i.e. the adoption of formally new treaties. But some of these treaty bodies provide for their COPs to adopt or amend annexes to the treaties or protocols, subject to the non-acceptance of these decisions by individual states parties. By requiring action by states in order for them not to become committed rather than to become committed – opting out, instead of opting in – the efficiency of law-making is greatly enhanced.

Other examples are the ‘quasi-legislative’ powers of the UN Commission on the Limits of the Continental Shelf to adopt recommendations on the outer limit of the continental shelf that according the Law of the Sea Convention will, if implemented by the coastal state, be ‘final and binding’. Similarly, the ICC Assembly of States Parties has the power to adopt and amend ‘elements of crime’ which shall ‘assist the Court in the interpretation and application of Articles 6, 7 and 8 bis’ (genocide, crimes against humanity, war crimes and the crime of aggression), subject to the condition that such elements ‘shall be consistent’ with the Rome Statute.

In determining the powers of the treaty bodies the traditional canons of treaty interpretation apply, including the principle of effective interpretation. But it may also be a question of the applicability of international institutional law, especially the principle of implied powers. This principle has for example been invoked in relation to the powers of the Human Rights Committee to adopt General Comments, interim measures, as well as follow-up measures.

The legal status of the treaty bodies’ decisions may also raise difficult questions. For example, article 17 of the Kyoto Protocol enables the Meeting of the Parties to adopt ‘rules’ relating to the operation of the system for trading in emissions of greenhouse gases. It is not entirely clear whether such rules are legally binding. But even if the treaty bodies are not empowered to make binding decisions, such decisions are not necessarily without legal significance. Article 31(2)(b) of the Vienna Convention on the Law of Treaties requires that treaty interpretation takes into account ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’. The practice of the treaty bodies should be seen as international institutional practice rather than the practice of states parties – especially if the treaty bodies are composed of independent experts. But responses by states practice may establish an interaction between such institutional practice and that of states parties.

Treaty bodies may also have important functions in supervision and enforcement of treaty obligations – complementing treaty law and the law of state responsibility. Examples are the supervisory bodies in human rights, international environmental law and disarmament law. But, again, it may be difficult to determine the legal status of enforcement decisions. This is illustrated by article 18 of the Kyoto Protocol establishing that mechanisms ‘entailing binding consequences shall be adopted by means of an amendment to this Protocol’. It is not obvious what kind of measures should be regarded as entailing ‘binding consequences’, but it would be difficult to accept e.g. deduction of emissions quotas at a penalty rate, as adopted by the MOP as part of its Marrakesh Accords, without a treaty basis in the form of an amendment.

It may be concluded that treaty law is necessary, but not sufficient to understand the legal aspects of treaty bodies and their activities. Treaty law must be complemented by international institutional law. This branch of international law is characterized by its open-ended nature, and has sufficient flexibility to be adapted to the specific functions of treaty bodies.

Weekday News Wrap: Monday, November 12, 2012

by Jessica Dorsey

Upcoming Events: November 11, 2012

by Jessica Dorsey

Upcoming Events

  • The U.S. Holocaust Memorial Museum will hold an event in Chicago on Wednesday, November 14, 2012. Michael Dobbs, the U.S. Holocaust Memorial Museum Goldfarb Fellow, will discuss the Hague trial of Ratko Mladic.
  • The Working Group on Economic, Social and Cultural Rights of the Netherlands School for Human Rights Research is hosting a research seminar entitled Economic, Social and Cultural Rights: Vehicles for Social Justice? on Wednesday November 21st, from 09:30-13:00. This research seminar is meant for PhD candidates and other researchers working in the field of ESC rights. More information can be found here. There is an afternoon session open as well, and information about that can be found here.
  • From November 29, 2012 to December 01, 2012, The ASIL International Economic Law Interest Group, in partnership with the George Washington University School of Law and the Federal Trade Commission, is holding its biennial conference later this month. The theme of the conference is Re-Conceptualizing International Economic Law: Bridging the Public/Private Divide. Panels will address an array of issues in international economic law, including the role and development of the multilateral trading system, the World Trade Organization, foreign investment, bilateral and regional trade and investment agreements, international development law, and international financial regulation. The conference organizers welcome all those interested in international law to attend the conference. A full program of events is available here (.pdf).
  • On December 4-5, 2012, Human Rights First will convene the inaugural Human Rights Summit: American ideals. Universal values, marking the 64th anniversary of the Universal Declaration of Human Rights. More information can be found here.
  • On January 18-19 2013, The School of Law of the University of Sheffield is presenting Doing Law Beyond the State: Research Methodologies in Comparative, EU and Public and Private International Law. An initial, “scoping workshop” brings together established and early-career scholars to have a “cross-generation” and cross-specialization dialogue. We will adopt a ‘what have we learned?’ approach, considering how the growing interest in method and importance of theory among traditional approaches to legal scholarship has important impacts on the academy and on legal practice. The preliminary program can be found here and registration information can be found here. There is an Early-Bird Rate until November 23 and a special rate for UACES members and PhD students as well.
  • The American Society of International Law has posted a number of upcoming events here.

Calls for Papers/Applications

  • The International Journal of Contemporary Laws and the International Council of Jurists are organizing Contemporalis 2012, 1st Legal Writing Competition on Contemporary Legal Issues. The hope to develop research writing instincts among the future generation of the research scholars. The contest is open to students of any nationality in any law degree program (undergraduate or graduate). The deadline for registration was November 5, 2012. Entries must be submitted by November 20, 2012.
  • Transnational Dispute Management has put out a call for papers on Art and Heritage Disputes. Selected authors will also be invited to present their research at the conference / workshop on Art and Heritage Law to be held on 24-27 March 2013 at Maastricht University, the Netherlands. Paper proposals (i.e., abstracts) of up to 500 words should be submitted as soon as possible, before December 1, 2012. The Editors will select papers at their discretion. If selected, full papers of up to 5000 words including footnotes will be due by May 15, 2013. Publication is expected in the fourth quarter of 2013.
  • The Forced Migration Review invites submissions for a special issue on Fragile States. The deadline is Jan. 7, 2013.
  • The A38 Journal of International Law is currently soliciting submissions for Volume I, Issue 4, which will be published January 2013. Issue 4 will be devoted to “Diplomatic and Consular Immunities, Privileges and Protection under International Law.” The journal editors have “a strong preference for articles that assert and defend a well-reasoned position.” Submissions requested include articles (between 6,000-10,000 words including footnotes), short notes (3,000-6,000 words including footnotes), book reviews (1,000-2,000 words including footnotes), and commentaries (3,000-5,000 words including footnotes). Co-authored papers are welcome. Submissions are due by November 30, 2012.
  • The Hague Yearbook of International Law has issued a call for submissions for its forthcoming 2012 volume. The call can be found here. The deadline for submission is January 1, 2013.
  • The Asian International Economic Law Network has issued a call for papers for its Third Conference, which will be held on July 18 and 19, 2013 at the Ewha Womans University in Seoul, Korea. The theme of the Conference is: The WTO at 20 and the Future of the International Law on Trade, Investment and Finance. The Call for Papers for this Conference concerns two different types of papers: (1) those for the kick-off panel discussion on the main theme (Panel 1) and the wrap-up panel discussion on the main theme (Panel 5), and (2) those for three thematic Panels on trade, investment and finance (Panels 2, 3 and 4). More information can be found here.
  • The Teaching International Law Interest Group of the American Society of International Law has issued a call for papers for a conference on Teaching International Law Outside Law Schools, to be held at the Indiana University Robert H. McKinney School of Law on April 12, 2013. The call can be found here and abstracts of 300 words are due before January 6, 2013.
  • The Beijing Law Review has issued an open call for papers. More information can be found here.
  • ACUNS (Academic Council on the United Nations) offers a Dissertation Award to recognize students of extraordinary potential who are writing graduate-level dissertations on topics related to the United Nations system. Eligible candidates may be citizens of any country and must be at the dissertation-writing stage of a Ph.D., J.S.D. or LL.M. level and engaged in the writing stage of their program. Applications must be received in full by Thursday, January 31, 2013. Details can be found here.
  • Finally, submissions are being accepted for the second James Crawford Prize of the Journal of International Dispute Settlement. The announcement can be found here.

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: November 3 – 9, 2012

by An Hertogen

With the US elections dominating the headlines this week, Peter Spiro argued that the impact of the US president on populations who are unable to vote in the election, and are not even allowed to make campaign contributions, reveals another limit of state-based institutions. Deborah Pearlstein asked whether President Obama’s promise that a “decade of war is ending” includes the “war” against al-Qaeda, and started thinking about the law and policy implications as the US shifts from the war paradigm to a counter-terrorism framework.

Two posts dealt with immunity from criminal jurisdiction. Kristen Boon discussed the sensitivity and the legal significance of head of state immunity, which was on the agenda this week at the UNGA’s Sixth Committee. In a guest post, William Dodge tried to make sense of the Fourth Circuit’s decision in Yousuf v. Samantar.

The main event on the blog this week was the symposium on the Oxford Guide to Treaties, edited by our very own Duncan Hollis, who introduced the symposium on Thursday morning. The symposium continues on Monday, so stay tuned for more!

A first series of posts dealt with the question of reservations. David Stewart addressed objections to reservations and  severability, and argued that the severability rule could be a disincentive to broad treaty adherence. Harold Koh asked what happens when a treaty reservation is invalid? Ed Swaine also addressed the severability issue and asked how it could be made less severe. Marko Milanovic defended the compromise reached by the International Law Commission in its 2011 Guide to Practice on Reservations to Treaties, and described the conceptual moves made to achieve the compromise.

A second series of posts focused on treaty interpretation. Richard Gardiner started the conversation pointing to various considerations beyond those listed in article 31 VCLT that can inform treaty interpretation. Jean Galbraith discussed the diverging ways taken by international and US domestic approaches to treaty interpretation, with international law accepting a strong teleological approach in contrast to the textual approach that has re-emerged in the US.

Finally, as always, you can find a list of upcoming events and our daily news wraps.

Have a nice weekend!

“A Decade of War Is Ending”

by Deborah Pearlstein

Cross-posted at Balkinization

Of the many memorable lines in President Obama’s eloquent victory speech on Tuesday, the Chicago crowd reserved some of its greatest applause not for the line trumpeting the economy’s ongoing recovery, but for the news that “a decade of war” was coming to an end.

Tuesday’s speech was not the first time the President has made such a statement. But he has taken care to avoid saying which war, exactly, he meant was at an end. Certainly he includes the war in Iraq as among the endings. Likewise nearing an end from the President’s perspective is the war in Afghanistan, with U.S. troops set to leave by 2014. What about the worldwide “war” against Al Qaeda and associated forces? The war two Presidents, Congress and the courts have all now found in some sense to exist? While U.S. operations in, for example, Yemen, continue apace, and the brand name “Al Qaeda” remains in active use, public reporting suggests there is less and less left of a command structure behind the Al Qaeda organization actually responsible for attacking the United States in 2001. Whether that war counts among the endings the President had in mind is less clear.

We may all hope to learn more about what the President meant by war’s end in the coming weeks. But he was certainly right to raise the question of how the country moves “beyond this time of war.” As Administration officials have suggested in recent years, in, for example, contemplating Al Qaeda’s “strategic defeat,” it is possible to envision an ending of one kind or another to all of these conflicts. Now is the time to think carefully about the vast law and policy implications of what it will mean when the United States is no longer at war.

Take one small sliver of the subject: the myriad federal statutes authorizing the government to exercise certain powers only for so long as hostilities continue. The existence of war, variously defined, is the sine qua non condition for the lawful exercise of a wide range of statutory authorities that have supported the past decade of U.S. counterterrorism operations. Military commissions, for example, may substitute for civilian trials to prosecute only those acts “incident to the conduct of war,” for events occurring “within the period of the war.” Under another law, civilians may be subject to the U.S. military justice system if they are “serving with or accompanying an armed force in the field… [i]n time of declared war or a contingency operation.” Likewise, private security contractors implicated in misconduct are immune from tort suits for a wide swath of activities, only if performed “during time of war.”

Perhaps most famous among such authorities, the 2001 Authorization for Use of Military Force empowers the President to detain individuals “engaged in an armed conflict against the United States,” only, as the Supreme Court held, “for the duration of these hostilities.” The existence of this “armed conflict” is likewise one of the central legal justifications for ongoing targeted killing operations by the United States abroad.

Whatever the answers to the longstanding questions about the scope of these and other war-triggered authorities, about whether and for how long they should continue to exist, it should be possible to agree on at least one thing as the conversation at war’s end begins: it would be better to make decisions about which of these laws are needed after we have a developed a game plan for U.S. counterterrorism strategy for the long-term. A strategy not driven by the demands of crisis-driven fear, as it was in the months after September 11, or by ex-post mistake mitigation, the task that confronted the President in his first term, and in important ways burdens him still.

What we need to help guide these decisions is a strategy that sees the challenge of terrorism in all its enduring complexity. A strategy that flows from the vision we glimpsed in passing on Tuesday, that of “a country that moves with confidence beyond this time of war, to shape a peace that is built on the promise of freedom and dignity for every human being.” A strategy that begins with the understanding that the task is to develop rules that will be a part of our national life and character not for a limited or exceptional period of “war” time, but indefinitely. And that therefore recognizes that the questions before us are not about what we are willing and able to do right now as a nation, but about what kind of country and what kind of world we want ours to be.

The President is right. These particular wars will come to an end. The problem of terrorism never will.

The Oxford Guide to Treaties Symposium: Comparing International and US Approaches to Interpretation

by Jean Galbraith

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

Congratulations to Duncan Hollis and the contributors to The Oxford Guide to Treaties [OGT].  This is a magnificent volume — one that fully lives up to its aim of “explor[ing] treaty questions from theoretical, doctrinal, and practical perspectives.”  For an edited volume, it is a remarkably coherent treatise.  Personal views of the individual authors do emerge, but they rarely dominate the doctrinal presentation.  Where the law is unclear, this is acknowledged by individual authors or sometimes by the very structure of the book itself.

Nowhere is this more clear than with regard to treaty interpretation.  By my count, OGT offers no fewer than four approaches to treaty interpretation.  Three are laid out in Part IV, which is explicitly devoted to treaty interpretation.  Richard Gardiner explores the foundational VCLT rules; Catherine Brölmann focuses on the interpretation of constitutive treaties creating IOs; and Başak Çali addresses the interpretation of human rights treaties.  The fourth approach to treaty interpretation is found in David Sloss’s contribution on the domestic application of treaties.  Professor Sloss points out that some domestic courts take what he terms a “nationalist approach” and emphasize domestic rather than international principles of treaty interpretation (such as a canon of deference to the positions of their executive branches).  His lead example for this is the United States, and he explicitly cites the Supreme Court’s Medellin decision from 2008.

Here, I want to suggest that international and U.S. domestic approaches to treaty interpretation have largely moved in opposite directions over the last thirty years.  The Restatement (Third) of Foreign Relations Law (1987) emphasized that in the “United States tradition, the primary object of interpretation is to ‘ascertain the meaning intended by the parties’ rather than focus simply on the text” (§ 325, reporter’s note 4).  It specifically noted the special nature of IO charters, saying that the interpretation of such treaties should be subject to Chief Justice Marshall’s observation that “‘we must never forget that it is a constitution that we are expounding’” (§ 325, cmt. d).

Today, as Professor Brölmann indicates, international law accepts a strong teleological emphasis for the interpretation of at least some categories of treaties (such as IO charters).  Yet in the United States, this prospect has faded in favor of a more strictly textualist approach.  Contra to the Restatement, the Supreme Court in Medellin showed a marked preference for text as opposed to other possible sources of meaning.  It also showed no interest in a broader teleological approach in interpreting the U.N. Charter and the Statute of the ICJ.  Where the Restatement emphasized that IO charters are constitutional, Medellin treated them like ordinary treaties.  One can overemphasize this shift, which undoubtedly has its roots in broader changes in how U.S. courts approach statutory and constitutional interpretation, but it is nonetheless a real one.

One interesting question for treaty interpretation going forward (particularly for those of us interested in treaty interpretation by the United States) is to what extent this shift in U.S. judicial approaches has and will affect interpretative positions taken by the U.S. executive branch.  In some sense, this is the flip of Professor Sloss’s point about U.S. courts deferring to the executive branch.  U.S. courts may indeed defer to the executive branch, but the executive branch in turn may interpret treaties in line with the interpretive principles set out by U.S. courts.  This in turn might affect the positions taken by the United States as an actor within IOs.

This is just one example of the issues and questions that reading the OGT brought to my mind.  I wish I had had it available to me in my past work, and I know I will be turning to it often in my future work.  It is a truly rich resource for practitioners and scholars alike.

The Oxford Guide to Treaties Symposium: Starting a Conversation on Interpretation

by Richard Gardiner

For the past 15 years courts, tribunals, practicing lawyers and academics concerned with treaty interpretation have been paying increasing attention to the three articles on the topic in the 1969 Vienna Convention on the Law of Treaties. Because the International Law Commission as architect of these provisions confined their drafts to what they saw as general principles, stated laconically and in places elliptically, there has been some scope for dispelling misunderstandings.

Among the points made by the ILC were that the general rule is the whole of article 31 VCLT; that subsequent agreement and subsequent practice are authentic interpretation (the latter showing particularly that the approach is not a purely textual or literal exercise); that ordinary meaning, as part of the general rule, does not indicate some mythical single meaning but typically one selected by reference to context and to object and purpose; that the reference to relevant rules of international law was, at least in part, included to take account of intertemporal considerations; and that consideration of the circumstances of conclusion and of preparatory work was not to be unduly inhibited, the stated limitations applying only to their use as a determining factor.

However, the ILC never saw these provisions as anything amounting to a complete set of formulae for interpretation.  Thus investigation of the subject has moved on to consider, among other things, whether there are particular approaches to be taken in special subject areas such as human rights or international trade, how to deal with time factors, whether particular considerations arise if international organisations are involved, whether there is a useful potential crossover from the  originalist/constructionist debate in constitutional interpretation, and whether an evolutionary method of interpretation forms a distinct approach.

The Guide takes up some of these issues but much of its consideration of the topic is set in the context of the VCLT provisions.  Perhaps now is a good opportunity to take stock of new lines of investigation.

Weekday News Wrap: Friday, November 9, 2012

by Jessica Dorsey

The Oxford Guide to Treaties Symposium: Can Severability Be Made Less Severe?

by Edward Swaine

[Ed Swaine is Professor of Law at George Washington University Law School]

I’m pleased that the subject of reservations, which is near and dear to my heart, is attracting the attention of such esteemed commentators. The illuminating comments by Professor Stewart and Dean Koh, which I had the chance to read while preparing this post, focused in part on the severability solution, according to which impermissible reservations can at least sometimes be disregarded so as to leave a reserving state as party to the entire agreement.  Their comments, which query the compatibility of this approach with state consent and with securing Senate consent to future agreements, may be misperceived as resulting from parochial concerns – particularly in light of objections to the U.S. reservation to the Convention on Certain Conventional Weapons, in which some states likewise asserted the capacity to disregard the U.S. reservation and hold it to the “entirety” of the Convention.

I think the objection to the solution goes deeper, for reasons I could only touch on in my chapter.  ILC Guideline 4.5.3 would create a presumption that impermissible reservations are severable unless it is shown that the reserving state viewed the reservation as a sine qua non of its consent (as opposed to, say, a half-hearted ask or an attempt to yank another state’s chain).  Unless the matter rises to the legitimate attention of a treaty monitoring body or an international tribunal, this puts two inquiries to states trying to evaluate another state’s obligations – first, whether the reservation is impermissible because it violates the treaty’s object and purpose; and second, the psychological conditions of another state’s consent – which must also be anticipated by the reserving state in its turn.

This does not seem very workable, and the reason is in part because of the (ultimate) indulgence of the consent principle.  One might defend the first inquiry as potentially objective, though states are bound to differ on a treaty’s core values; the VCLT wisely pretermits the inquiry’s relevance to the extent it opens all reservations to objection on any grounds. The second inquiry, though, is not only subjective, but foreign to the responding state.  Still, it would have been open to the ILC to defend this presumption of severability as an information-forcing default rule – one that makes the reserving state disclose, via the reservation text or otherwise, its intent to insist on the reservation as a condition of adherence.

It is at that point, though, that the Guidelines seem to run out.  The opposability construct of the VCLT, to which the Guidelines are somewhat hostile, works after a fashion only because the call-and-response of reservations and objections establishes a shared understanding through what look like unilateral vetoes: first a veto by the reserving state of the agreed treaty content, then a veto by any objecting state to the reservation’s effect against it (and, unfortunately, either to the reserved-to provision or the reserving state’s consent, which is not an appealing choice).  Guideline 4.5.3 instead supposes that states will mutually intuit an offense against a treaty’s object and purpose; then develop a shared view of the reserving state’s “reservation price” based on the totality of circumstances relating to its intentions; and last but not least, as a belated concession to the consent principle and to its relative expertise, permits the reserving state to “express at any time its intention not to be bound by the treaty without the benefit of the reservation.”

The ILC is to be commended for taking seriously the problem of reservations that are inimical to a treaty’s mission and for addressing the limitations of the objections scheme. And it is notable that it did so while (at least nominally) resisting the position that each state can decide for itself whether a reserving state remains a party to the entire agreement, having recognized the importance of a state’s consent to the initial set of terms it assumed. But permitting a state to end its obligations at any time, with potentially retroactive effect, on the pretext that its reservation is impermissible – well, that converts a problem of uncited violations into one in which a team can blow the whistle on itself or, in any event, pick up the ball and go home when it chooses.  The Guidelines probably anticipate more refereeing by treaty monitoring bodies, but that will elicit its own objections. In the meantime, it seems likely that the proposed compromise on severability will gain adherents only slowly, if at all, and in the meantime make the players even more uncertain of the rules.

The Oxford Guide to Treaties Symposium: Validity of Reservations Revisited

by Marko Milanovic

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

I am grateful to Duncan for inviting me to contribute to this conversation, inspired by his important new book. Let me continue where David Stewart and Harold Koh left off, namely with the issue of the validity of reservations and the innovations in that regard in the ILC’s freshly minted Guide to Practice. I would disagee with Professor Koh that the approach ultimately adopted by the ILC ‘makes little sense and smacks of unfairness’. On the contrary – the ILC has not only brought much needed clarity to the Vienna Convention regime, but has succeeded in reconciling seemingly irreconcilable doctrinal and ideological positions, in a compromise that I hope most governments will in the end find palatable. Let me try to explain why.

When one reads the (rather paltry) Articles 19-22 VCLT, particularly in light of the ICJ’s Reservations to the Genocide Convention opinion, one cannot avoid the impression that the process of determining whether a reservation was invalid as being contrary to the object and purpose of a treaty was meant to be more or less inter-subjective: each state should determine for itself whether a given reservation was compatible with the treaty’s object and purpose, and if it was not it should make an objection to that effect. But such an inter-subjective approach looks remarkably unappealing from the perspective of major multilateral normative treaties, particularly in the human rights context. The rights of individuals, so the reasoning among many human rights lawyers went, should not depend on the existence of objections, vel non, by third states, especially when reciprocity of state obligations has little place in the human rights context and when for a variety of reasons states routinely fail to object to reservations even when there are perfectly good reasons to do so. While objections to reservations would be probative, they could not be dispositive. It would indeed primarily be upon courts or treaty bodies to determine whether a reservation is compatible with the object and purpose of the human rights treaty, while the consequence of invalidity would normally not only be the nullity of the reservation, but also its severability, so that the reserving state would remain bound by the human rights treaty without the benefit of its reservation.

Many governments were less than pleased with what they saw as a power-grab by human rights bodies and a usurpation of their sovereign prerogatives. The ILC, being the bastion of international law orthodoxy, was no more pleased, nor was Alain Pellet as its Special Rapporteur. How could international law survive as a coherent, unified system if more of its branches followed the human rights example and asserted that because they were special they needed special rules, rather than the outdated Vienna framework. If that was true for human rights, why would it not be true for trade, the environment, or whatever other topic people became strongly devoted to. Fragmentation had to be resisted, and Pellet and the ILC could not, would not accept the ‘human rights are special’ argument. No true international lawyer, even a gentle, human rights-loving one, could accept its basic ideological premise.

But, during the (very) lengthy process of working on the Guide, the ‘generalists’ and the ‘human rightists’ actually talked to one another, including at a series of meetings organized in Geneva between the ILC and human rights treaty bodies. Rather than harden, their respective positions evolved. While from the generalist perspective the specialty claim could never be accepted, there was still room for compromise. Perhaps it was the general regime itself that could be so interpreted – or adjusted – to accommodate the concerns of the other side, and this time not just for the benefit of human rights. And so we have now the Guide, in which Pellet so very cleverly succeeded in reconciling positions that before seemed irreconcilable. He and the ILC did so by making a series of crucial conceptual moves.

First, according to the Guide, Article 19 VCLT should be regarded as laying down objective criteria for the validity of reservations, as inter-subjectivity is a recipe for chaos. Secondly, Articles 20-23 VCLT only deal with those reservations which are objectively valid under Article 19; they do not mention nor pertain to reservations which are in fact invalid. Thirdly, while states may object to reservations that they consider invalid, this is merely persuasive evidence of invalidity. In fact, objections only have real legal effect if they are made against reservations which are objectively valid; the objecting state may object for any reason whatsoever, simply because it does not want to accept the modified treaty bargain that the reserving state is offering. Fourthly, while the VCLT does not say what are the consequences of an invalid reservation, the only sensible option is to accept that such a reservation is null and void. Fifthly, however, saying that an invalid reservation is a nullity does not resolve the issue of the reserving state’s status as a party to the treaty. That will depend on the intention of the reserving state, which has a choice – either stay on as a party to the treaty without the benefit of the invalid reservation, or say that it no longer considers itself bound by the treaty, while acting under a rebuttable presumption that the reserving state intends to remain a party. (See gudelines 4.3 and 4.5).

Whether this is really the Vienna regime, ‘Vienna-plus,’ or something else entirely will, I imagine, be the object of some debate. But what seems to be beyond debate is that the Guide’s approach to the invalidity of reservation accommodates most of the human rights-inspired critique of Vienna without giving any ground to the idea of specialty. This is a general regime applying to all treaties, but it still moves from the inter-subjective approach in which state objections are the only thing that matters, it treats invalid reservations as a nullity, and it allows them to be severed. Yet they can only be severed if the reserving state does not actively oppose its continued status as a party to the treaty, with the presumption of severability operating on the unstated assumption that passivity is frequently the politically most likely reaction by states, and that the retention of the state within the treaty regime but without the reservations would be a probable outcome.

The Guide thus achieves a compromise that avoids fragmenting international law, accommodates concerns arising from the context of normative multilateral treaties, including human rights ones, yet still gives ultimate say on the matter to the principle of state consent. For instance, all the United States would need to do to avoid the severability of any of its reservations to the ICCPR, on the assumption that some of them in fact are objectively invalid, would be to say (as it has done so several times already) that it considers them an integral component of its consent to the entire treaty. That does not seem to be too onerous a burden, and is indeed a far cry from the approach articulated by the Human Rights Committee in its General Comment No. 24.

There is, in short, much to be commended in this anti-fragmentationist yes still progressive compromise, but it of course remains to be seen whether both governments and human rights institutions will appreciate it for what it is. I certainly hope they do.

The Oxford Guide to Treaties Symposium: What Happens if a Treaty Reservation is Invalid?

by Harold Hongju Koh

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

Professor Duncan Hollis’ magisterial new book, The Oxford Guide to Treaties, collects an enormously useful amount of up-to-the-minute scholarship on myriad pressing questions of international treaty law. Its publication comes at a particularly opportune moment, as the International Law Commission’s (ILC’s) Guide to Practice on Reservations to Treaties was finalized by the Commission in 2011, and is currently on the calendar for action next year by the U.N.’s Sixth Committee and General Assembly.

The chapter on Reservations to Treaties, by Professor Ed Swaine, a former Counselor on International Law in the Office of the Legal Adviser, addresses one of the thorniest issues in the already complicated area of reservations – namely, the effect of objections to so-called “invalid” reservations.  For good reason, Professor Swaine does not attempt to resolve this contentious issue definitively in his chapter, as it remains subject to differing and contested views among States.

But the penultimate draft of the ILC Guide provided that “[w]hen an invalid reservation has been formulated, the reserving State or the reserving international organization is considered a contracting State or a contracting organization or, as the case may be, a party to the treaty without the benefit of the reservation, unless a contrary intention of the said State or organization can be identified.” (emphasis added).  Simply put, under this approach a State that has made a reservation that is later deemed “invalid” could nevertheless be bound by the treaty without the benefit of the reservation it took pains to assert.  For good reason, this proposal drew a raft of vigorous comments from States at the annual Sixth Committee discussion in 2010.

The final draft of the ILC Guide has largely maintained the same approach, although happily giving somewhat more deference to the intent of the reserving State. According to current section 4.5.3, “[t]he status of the author of an invalid reservation in relation to a treaty depends on the intention expressed by the reserving State or international organization on whether it intends to be bound by the treaty without the benefit of the reservation or whether it considers that it is not bound by the treaty.” (emphasis added) But the presumption is clear: “Unless the author of an invalid reservation has expressed a contrary intention or such an intention is otherwise established, it is considered a contracting State … without the benefit of the reservation.”

On its face, this approach makes little sense and smacks of unfairness.  As the United States has consistently noted, it is difficult to square this approach with the bedrock principle of treaty law that States are bound only to those obligations they affirmatively consent to undertake.  Reservations, which allow States to condition the scope of their consent, are a well-established and critical feature of international treaty law. If a State’s condition to consent is later deemed invalid because it is incompatible with a treaty’s object and purpose, it makes little sense to pretend after the fact that the reserving nation de facto gave the broader, unconditioned consent that it expressly chose to withhold in the first place.

The Vienna Convention on the Law of Treaties (VCLT) rules on reservations are admittedly opaque.  But acknowledging that States are only bound to their treaty commitments with their genuine consent offers a far more workable framework for addressing reservations that are later characterized as invalid by another State.  For example, when the U.S. objected to Pakistan’s reservations to the Convention Against Torture (CAT) and International Covenant on Civil and Political Rights (ICCPR), we took the position that the totality of those reservations was incompatible with the object and purpose of the treaties.  Yet we nevertheless chose to maintain –consistent with VCLT Art. 21.3–treaty relations with Pakistan, except to the extent of their reservations. In short, severing an invalid reservation from a treaty is not like severing an unconstitutional clause from a piece of legislation. A fair-minded observer still must determine the scope of the reserving nation’s genuine consent to the treaty’s provisions, and make a good faith effort to respect both the party’s actual consent and its effort to carve out exceptions to that consent through particular reservations.

The ILC’s Guide to Reservations is sure to foster ongoing debate among international lawyers. It is the work of what the Statute of the ICJ, Article 38 calls, “the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of [international] law.”  But as that debate, and others, unfold, it will be a blessing to have Professor Hollis’ Oxford treaty volume, whose chapters –also authored by distinguished publicists with their own legal views–consistently give us a thoughtful, useful starting point –and counterpoint –for thinking through  this and many other knotty treaty questions.

The Oxford Guide to Treaties Symposium: Treaty Reservations and ‘Objections-to-Reservations’

by David Stewart

[David P. Stewart is a Visiting Professor of Law at Georgetown University Law Center]

Duncan Hollis deserves hearty congratulations on the publication of the Oxford Guide to Treaties.  There’s no doubt that it will quickly become the essential reference for lawyers and other treaty specialists in foreign ministries and international organizations everywhere, to say nothing of judges, professors and private practitioners.  Its 25 substantive chapters cover the full range of issues raised by contemporary treaty practice, both bilateral and multilateral, so it’s definitely not a volume you’ll try to read at one sitting.   But international lawyers will certainly want to keep it handy.   Many thanks to Duncan and his co-authors for giving us one of those “can’t-do-without” books.

For various reasons, I was drawn in particular to Ed Swaine’s chapter on treaty reservations and was delighted to find a thorough and thoughtful analysis which combines practice and theory and contrasts the rules of the Vienna Convention on the Law of Treaties with the International Law Commission’s 2011 Guide to Practice.   He traces the evolution of the reservations system as multilateral treaties proliferated over the past century and takes up the knottiest of issues – for example, how reservations differ from other unilateral statements (such as interpretive statements or “understandings”), whether some types of reservations are void ab initio or only when objected to by other States, and what legal effect such “objections” actually have — and who gets to decide.

As Swaine rightly notes, the “objections-to-reservations” rules in VCLT articles 20 and 21 leave much to be desired, at least with respect to clarity and certainty.  An objecting State can, at its option, decline to accept treaty relations with the reserving state; otherwise, “the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation.”  (Art. 21(3)).

The ILC’s Guide reiterates the first part of this approach (noting, in para. 2.6.6, that a state or international organization “may oppose the entry into force of the treaty as between itself and the author of the reservation”) but then introduces a further complication by distinguishing between “valid” and “impermissible” reservations and by introducing the concept of “establishing” a reservation.  In summary, an “established” reservation is one which is authorized by the treaty or otherwise permissible, properly formulated and communicated, and accepted by the other party (para. 4).  By definition, then, established reservations are objection-proof (or, put otherwise, objections prevent establishment.) But an objection to a reservation which has not been “established,” even if that reservation is “valid,” has the legal effect of precluding the reservation “from having its intended effects” but does not preclude the entry into force of the treaty as between the reserving and objecting states, unless the objecting state expresses such an intention (para. 4.3, 4.3.1 and 4.3.5).  Whether this additional level of detail adds to the clarity of the rules seems questionable.

These issues get even more difficult when the objection is to only part of a reservation (a subject not explicitly addressed by the Convention or the ILC Guide).   But perhaps the most troubling recent development in recent “treaty reservation practice” has been the emergence of a so-called “severability” rule – according to which some reservations are considered invalid or impermissible and therefore “severable,” meaning that the reserving state is bound to the treaty in question without the benefit of its asserted reservation.  The origins of this approach, as Swaine notes, lie in the European Court of Human Rights (in particular its 1988 decision in the Belilios case); the UN Human Rights Committee adopted a similar approach in its General Comment 24 (1994) formulated in the context of the International Covenant on Civil and Political Rights.  Although the Covenant contains no prohibitions on reservations, the Committee adopted a very restrictive view on the subject, opining that no reservations could be taken to provisions that represent customary international law (and a fortiori those having the character of peremptory norms), or that make rights non-derogable, or that provide “supportive guarantees,” or that interfere with its own “monitoring role” or its competence to interpret the requirements of the Covenant.  The General Comment drew immediate and sharp protests from the United States, the United Kingdom and France for a variety of reasons, among them the suggestion that the Committee could itself declare a given reservation invalid and “severable” and consider the reserving State bound to the Covenant without benefit of the reservation in question.

A simple illustration demonstrates why the Committee’s approach was of such concern to the United States.   Article 20 of the Covenant provides that “any propaganda for war shall be prohibited by law” and that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”  For obvious First Amendment reasons, the United States could not comply with the full import of that article, and thus conditioned its adherence to the Covenant on a carefully crafted reservation stating that “article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States.”  But the Committee took direct aim at this reservation, declaring that a state may not reserve the right to permit the advocacy of national, racial or religious hatred, because that prohibition was a matter of customary international law (if not a peremptory norm).

It is possible that the Committee failed to understand the real import of its statement, since it would leave denunciation of the Covenant as the only real option.  Had General Comment been issued before the United States undertook to adhere to the Covenant, ratification would have been far less likely.  Had the severability doctrine been understood to apply, it is hard to see how any responsible legal or political adviser could have recommended U.S. ratification in the first place.  The example simply illustrates that restrictive reservation rules may well work against broad adherence to some types of multilateral treaties, as Swaine’s chapter notes.

The ILC Guide takes a more nuanced approach than General Comment 24.  It states clearly that the fact a treaty provision reflects a rule of customary international law “does not in itself constitute an obstacle to the formulation of a reservation” but that no reservation can exclude or modify the effect of a treaty contrary to a peremptory norm.  (paras., 4.4.2).  Nor can reservations be taken to non-derogable provisions unless “compatible with the essential rights and obligations arising out of that treaty.” (para.  A somewhat similar tack is taken to reservations concerning dispute settlement provisions or monitoring (para.  On the question of severability, the Guide states that unless it has expressed a contrary intention, a state is bound to the treaty without the benefit of an invalid reservation.

In an ideal world, “clean” ratifications are much to be desired.  But as multilateral treaties become more detailed and seek to address more issues on which various domestic laws and practices differ widely, it grows commensurately more difficult to achieve agreement on texts which all states can accept and implement.   Perfection in drafting is a virtue attributable to few if any treaties, especially those produced in multilateral fora.  Within limits, therefore, reservations continue to serve a useful function, permitting states to adhere to imperfect treaty texts by providing a means of accommodating differences.  In practice, the severability rule may turn out to be a significant disincentive to broad treaty adherence – particularly when decisions about the validity of reservations no longer rest on state consent.

Weekday News Wrap: Thursday, November 8, 2012

by Jessica Dorsey

The Oxford Guide to Treaties: An Opinio Juris Symposium

by Duncan Hollis

OGT CoverI’m extraordinarily pleased to be able to announce that today marks the start of the Opinio Juris symposium on my recently-edited volume, The Oxford Guide to Treaties (you can buy your copy here and there’s even a discount for Opinio Juris readers!).

The Oxford Guide provides a current and comprehensive guide to treaty law and practice. It does this in two parts.  First, it presents 25 chapters written by the world’s leading treaty-experts, exploring the world of treaties in five areas: (i) what a treaty is and who can make them; (ii) how a treaty is made (including the treaty-making process, signature, provisional application, deposit, registration, and reservations); (iii) how treaties are applied (including their territorial reach, third party rights and obligations, amendments, domestic application, succession, treaty bodies and conflicts); (iv) the rules on treaty interpretation generally and with respect to treaties on human rights and international organizations; and (v) how to avoid or exit a treaty commitment (including questions of validity, remedies for breach, exceptional circumstances, and termination). Second, the book pairs these explanations of existing rules and practice with examples of how modern treaties are drafted. Thus, the last section of the book includes 350 treaty excerpts on 23 treaty topics ranging from how to deal with multiple language treaty texts to the use of simplified amendment procedures (for those looking for a longer introduction to the project, see here).

Since the book is consciously treatise-like in its coverage, this symposium has opted for a slightly different format than the norm.  In lieu of comments on the book’s thesis, over the next few days we will use The Oxford Guide’s coverage as a launching pad for a discussion of some of the most pressing treaty questions confronting international lawyers.  The current schedule is (roughly) as follows:

(1) Today will focus on a discussion of reservations and other unilateral statements, with particular attention to the International Law Commission’s Guide to Practice on Reservations to Treaties

(2) Tomorrow, we will turn to treaty interpretation, particularly the phenomenon of evolutionary or “dynamic” interpretation; and, after a weekend respite,

(3) Monday, we will discuss the variety of functions treaties perform, such as their increasing “publicness”, the role of non-state actors in modern-treaty making, as well as any final comments that participants care to make.

In terms of participants, I’m pleased to have a truly distinguished group of experts participating in this on-line symposium.  Several of them are returning to the fold in the sense that they already contributed their time and expertise to The Oxford Guide itself, including Ed Swaine (who wrote the chapter on Reservations); Geir Ulfstein (who wrote on treaty bodies and regimes); Richard Gardiner (who wrote on the Vienna Rules on treaty interpretation); Catherine Brölmann (who wrote on interpreting constitutive treaties of International Organizations); Başak Çalı (who wrote on human rights treaty interpretation); and Christian Tams (who co-authored with Bruno Simma the chapter on remedies for treaty breaches)

In addition, I’m honored to have a group of very distinguished outside experts lend their voices to the conversation. I’m particularly pleased (and grateful) to have Harold Koh, the Legal Adviser to the U.S. Department of State, offer some thoughts on treaty reservations.  I’d also like to welcome three other commentators — Jean Galbraith, Marko Milanovic and David Stewart — and thank them for making the time to participate in these discussions.  I’m hopeful that one or more of my fellow Opinio Juris contributors may weigh in from time to time as well.

Altogether, we’ve got a set of really interesting topics and a great bench of experts to discuss them. I, for one, am really looking forward to the conversation.

Weekday News Wrap: Wednesday, November 7, 2012

by Jessica Dorsey

From the Trenches: Head of State Immunity Discussed in Sixth Committee of GA

by Kristen Boon

This week, state delegates to the Sixth (Legal) Committee of the UN have been debating the most politically sensitive topic of the latest International Law Commission‘s (ILC) report: Head of State Immunity from criminal jurisdiction.

The topic is sensitive for several reasons.   First, it raises the question of whether there should be exceptions to immunity for serious crimes.  In this regard it is relevant to note that Art. 27 of the ICC Statute does not recognize the immunity of state officials for international crimes, although delegates noted that courts can differ widely on this issue.   Second, it requires a determination of what kinds of officials should benefit from the immunity – the traditional troika of heads of states, ambassadors, and foreign ministers– or a broader range of foreign state representatives.  Third, it forces the issue of how to balance accountability and immunity, and with that, deference to state sovereignty.

The ILC had requested state comments on their national law and practice on two issues:

(a) Does the distinction between immunity ratione personae and immunity ratione materiae result in different legal consequences and, if so, how are they treated differently?

(b) What criteria are used in identifying the persons covered by immunity ratione personae?

Immunity ratione pesonae refers the personal immunity of a head of state.  It is linked to the office, and is very broad because it can cover public and private acts.  In contrast, ratione materiae, or functional immunity, covers acts by state officials in their official capacity.  It is determined by the nature of the acts rather than the office itself, and would apply to former officials after they have left office.  The ICJ has tackled aspects of these questions in the Arrest Warrant case, in Djibouti v. France, and most recently in the Jurisdictional Immunities case.

The topic is legally significant because there has been a difference between the views of national and international courts.   To date, it appears that troikas get absolute status-based immunity from proceedings in other countries’ courts, but not from proceedings in international tribunals.    Moreover, there is a link between immunities and state responsibility.   As the UK delegate explained, a plea of immunity ratione materiae in criminal cases was a plea by the State that the act of its official was an act of the State itself, which was an acknowledgement of the State’s responsibility and, therefore, meant that any claim or remedy would lie at the level of international law.  Another contentious issue is whether there should be exceptions to immunity for violations of jus cogens norms, and further, how to distinguish the legal regimes applicable to the two aforementioned types of immunity.  The Special Rapporteur’s report helpfully highlights the areas of contention.

Many states want to maintain a broad regime of immunities and discouraged a lex ferenda approach to the topic.  Germany, however, reiterated that immunity does not mean impunity, because states can always waive immunity, prosecute under their own national laws, or defer to international criminal jurisdiction.

For those following this topic, a few useful background notes are available here and here.  The ILC will begin producing draft articles for debate, and we can expect this will be a hot topic in the years to come.

Weekday News Wrap: Tuesday, November 6, 2012

by Jessica Dorsey

Truly Universal Franchise (Or, A World Wanting to Vote)

by Peter Spiro

As everyone gets a little weary from the blizzard of last-week polls in the lead-up to the election itself, it’s not surprising that pollsters have widened their scope to measure the preferences of non-Americans outside the United States. The result: overwhelming for Obama. (The only country in which Romney bests Obama is Pakistan.) Though perhaps not exactly rocket science, Joseph Stiglitz explains the lopsided numbers here.

But why should foreign preferences be limited to meaningless polls only? The rest of the world is deeply affected by who sits in the presidency after all. Basic democratic theory holds that anyone affected by governance should have a say in its making. As Frances Stead Sellers pointed out in an elegantly argued 2004 piece in the Washington Post’s Outlook section, there is an “irony inherent in a situation where the president of the world’s greatest democracy exercises so much power internationally and so few people have a say in choosing him.”

Not going to happen anytime soon, and not very practical (though one might play around with the notion of allowing foreigners to make campaign contributions, a practice permitted in Australia, Germany, France, and Israel). But the disenfranchisement of the world points to another pathology of state-based institutions.

Weekday News Wrap: Monday, November 5, 2012

by Jessica Dorsey

Upcoming Events: November 4, 2012

by An Hertogen

Upcoming Events

Calls for Papers/Applications

  • The University of Ghent has issued a call for abstracts up to 1,000 words for a book entitled: 35 Years of the Inter-American Court of Human Rights: Theory and Practice, Present and Future. Abstracts are due to be submitted by November 15, 2012.
  • The University of Catania, Italy, is organizing the 10th Young International Lawyer Research Forum on January 24-25, 2013 themed “A Lackland Law? Territory, Effectiveness and Jurisdiction in International and European Law.” The deadline for the submission of abstracts is November 24, 2012.
  • The 9th Global Administative Law Seminar will take place in Viterbo, Italy, on June 13-14, 2013, on the theme of Inter-Institutional Relations in Global Law and Governance. Abstracts are due by February 3, 2013.
  • The Centre for Studies and Research in International Law and International Relations at the Hague Academy for International Law is organizing a session on the Legal Implications of the Financial Crisis from August 19-September 6, 2013.  Applications close on April 1, 2013 at 12am (GMT+1). 24 spaces are available, divided evenly between the English and the French section.
  • The Centre for Human Rights and Legal Pluralism at McGill University is calling for applications  for the O’Brien Fellowship for Human Rights and Legal Pluralism to support LL.M or D.C.L. students at the Faculty of Law.

Making Sense of the Fourth Circuit’s Decision in Samantar

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 brief of the United States to the Fourth Circuit in Yousuf v. Samantar. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

On November 2, the U.S. Court of Appeals for the Fourth Circuit issued its opinion on remand in Yousuf v. Samantar. The opinion contains two key holdings: (1) that while State Department determinations of status-based immunity (e.g. head-of-state immunity) are entitled to absolute deference, State Department determinations of conduct-based immunity for official acts are entitled only to substantial weight; and (2) that foreign officials are not entitled to conduct-based immunity for violations of jus cogens norms.

Samantar served as Defense Minister and then as Prime Minister of Somalia before fleeing that country in 1991 and coming to the United States in 1997. Plaintiffs brought suit under the Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA) alleging that they and members of their families had been subjected to torture, arbitrary detention, and extrajudicial killing by government agents under Samantar’s command. In 2010, the Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) did not apply to the immunities of foreign officials, which continue to be governed by federal common law. On remand, the State Department determined that Samantar did not enjoy immunity, emphasizing the lack of a current recognized government in Somalia that could assert or waive Samantar’s immunity and the fact that Samantar is a resident of the United States. The district court followed the State Department’s determination, and Samantar appealed to the Fourth Circuit.

The United States filed an amicus brief in the Fourth Circuit arguing that the State Department’s determination with respect to Samantar’s immunity was binding on the courts, but the Court of Appeals held that this depended on the kind of immunity determined. Broadly speaking, there are two sorts of foreign official immunities. Status-based immunities—like head-of-state immunity—depend on an official’s status as the current holder of an office and extend to all of his actions, whenever performed. Such immunities last only as long as the official continues in office. Conduct-based immunity, on the other hand, extends only to acts taken in an official capacity, but such immunity continues after the official leaves office. Current officials who do not qualify for status-based immunities, as well as all former officials, are entitled only to conduct-based immunity for their official acts.

Citing the President’s constitutional authority to “receive Ambassadors and other public Ministers,” the Fourth Circuit concluded “that the State Department’s pronouncement as to head-of-state immunity is entitled to absolute deference.” Slip Op. 14. This conclusion is consistent with other recent decisions in head-of-state cases treating the State Department’s determinations as conclusive. See, e.g., Habyarimana v. Kagame (10th Cir. Oct. 10, 2012). The State Department had never recognized Samantar as Somalia’s head of state (although even if it had, his status-based immunity would have ended when he left office). But the Fourth Circuit is the first court of appeals to consider the degree of deference owed to determinations of conduct-based immunity following the Supreme Court’s decision in Samantar. The Fourth Circuit found “no equivalent constitutional basis” for the State Department’s determination of official-act immunity, which “is not controlling, but . . . carries substantial weight.” Slip Op. 14, 15.

Turning to the substance of conduct-based immunity, the Court of Appeals held that “officials from other countries are not entitled to foreign official immunity for jus cogens violations.” Slip Op. 22. As the court noted, this is consistent with a long line of pre-Samantar cases, which applied the FSIA to foreign officials but concluded that gross human rights violations were not official acts entitled to immunity. Slip Op. 17-18. See, e.g., Hilao v. Estate of Marcos, 25 F.3d 1467, 1472 (9th Cir. 1994) (concluding that “Marcos’ acts of torture, execution, and disappearance were clearly acts outside of his authority as President”). The Supreme Court in Samantar referred to the same line of cases and observed that the distinction between official acts and those beyond the scope of authority “may be correct as a matter of common-law principles.” 130 S. Ct. 2278, 2291 n.17 (2010). Thus, the Fourth Circuit was certainly right to conclude that the pre-Samantar cases discussing official capacity in the context of the FSIA “are instructive for post-Samantar questions of common law immunity.” Slip. Op. 17.

Unfortunately, this section of the Fourth Circuit’s opinion contains two analytical errors. While these errors offset each other, allowing the court to reach the correct conclusion, they weaken the opinion’s persuasive force. The Court of Appeals first erred by assuming that whether acts are official turns on whether those acts are attributable to the State. Slip Op. 17. As Article 58 of the ILC Draft Articles on State Responsibility makes clear, the attributability of an act to the State for purposes of state responsibility is “without prejudice to any question of the individual responsibility of any person acting on behalf of a State.” Indeed, both the U.S. government and the Supreme Court in Samantar expressly rejected the syllogism “that a suit against an official must always be equivalent to a suit against the state because acts taken by a state official on behalf of a state are acts of the state.” 130 S. Ct. at 2290. See also Brief of the United States as Amicus Curiae, Samantar v. Yousuf, at 12 (noting that while “the acts of the official representatives of the state are those of the state itself, when exercised within the scope of their delegated powers,” it is “incorrect to extrapolate from that principle the conclusion that a suit against a foreign official is invariably equivalent to a suit against the foreign state itself”) (internal quotation marks and citations omitted).

The Court of Appeals’ second error was to confuse the question whether jus cogens violations can be considered to have been taken in an official capacity at all, so that conduct-based immunity attaches in the first place, with the question whether there is a jus cogens exception to immunity. Slip Op. at 19-22. There is a long line of authority holding that once immunity has been established, no exception for jus cogens violations exists. See, e.g.,Jurisdictional Immunities of the State (Germ. v. Italy), 2012 I.C.J. __, ¶ 97 (Feb. 3); Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, ¶ 58 (Feb. 14). But none of these cases addresses the threshold question for conduct-based immunity of whether an act was taken in an official capacity in the first instance, for unlike other immunities, conduct-based immunity attaches only to official acts. As Judge Williams noted in Belhas v. Ya’alon, the threshold question whether a defendant “acted in his official capacity” so that immunity attaches in the first place is “quite distinct” from the existence of a jus cogens exception. 515 F.3d 1279, 1292 (D.C. Cir. 2008) (Williams, J., concurring). On this threshold question of official capacity there is an equally long line of authority—much of it cited by the Fourth Circuit—that jus cogens violations cannot be considered official acts for the purposes of conduct-based immunity. See, e.g., Regina v. Bartle ex parte Pinochet, 38 I.L.M. 581, 594 (H.L. 1999) (Lord Browne-Wilkinson) (“How can it be for international law purposes an official function to do something which international law itself prohibits and criminalizes?”). Congress took the same view in enacting the TVPA, finding that “because no state officially condones torture or extrajudicial killings, few such acts, if any, would fall under the rubric of ‘official actions’ taken in the course of an official’s duties.” S. Rep. No. 102-249, at 8 (1991). Thus, the Court of Appeals was right to conclude that, “as a matter of international and domestic law, jus cogens violations are, by definition, acts that are not officially authorized by the Sovereign.” Slip Op. 19.

One suspects that the Fourth Circuit’s first error of viewing official capacity as turning on attributability to the State forced it into its second error of viewing jus cogens through the lens of an exception. The unfortunate results are apparent in passages such as this: “under international and domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity.” Slip Op. 21-22. The better view—and the one consistent with both international law and U.S. practice—is that jus cogens violations are not performed in the defendant’s official capacity and are therefore not entitled to conduct-based immunity, even if the acts are attributable to the State for purposes of state responsibility.

In any event, as I have said, the court’s two analytical errors offset each other, and the court reached the correct conclusion. The Fourth Circuit’s holding that jus cogens violations are not official acts entitled to conduct-based immunity is consistent with existing U.S. case law, with Congress’s understanding in enacting the TVPA, and with customary international law. As more conduct-based immunity cases come before the courts, the Fourth Circuit’s decision in Samantar should be remembered not for its technical errors but for its important holding.

Weekend Roundup: October 27 – November 2, 2012

by An Hertogen

This week on Opinio Juris, our thoughts are with our US East Coast readers affected by Superstorm Sandy. We hope you and your loved ones are safe and sound.

Posting was light this week because of the storm, which forced us to postpone a symposium on Duncan Hollis’ edited volume, The Oxford Guide to Treaties, to next week. But Sandy also provided inspiration for a few substantive posts. Kristen Boon highlighted recent developments in international disaster law and Peter Spiro built on this asking whether in the long term there should be a global FEMA.

The Washington Post’s series of articles on “The Permanent War” prompted Ken Anderson to compare the different attitudes of the US political community and the international legal community towards accepting US “counter-terrorism on offense” policies from a legal and policy perspective, and discuss strategic considerations for advocacy groups to challenge the convergence towards acceptance of these policies within the US political community. In another post, Ken mentioned the little-known law of edged weapons.

Kevin Jon Heller posted an abstract of his draft article on the legality of signature strikes. He also wrote about the UK’s Supreme Court rejection of the argument that al-Qaeda operatives are not protected persons under article 49 of the fourth Geneva Convention, as argued in an OLC memo authored by Jack Goldsmith.

Looking forward to next week, Peter Spiro asked whether Americans abroad could determine the US presidential election.

As each week, we brought you daily news updates and a list of upcoming events. Kristen Boon also drew your attention to the upcoming annual conference of the Canadian Council of International Law.

Have a nice weekend!

Could Americans Abroad Decide the Election?

by Peter Spiro

I subscribe to the new conventional wisdom that Tuesday’s result won’t be close, but who knows? If it is, there’s always the chance that voters among the 6+ million U.S. citizens living outside the United States will decide the election.

Non-resident U.S. citizens are entitled under the Uniformed and Overseas Citizens Absentee Voting Act to cast absentee ballots in “the last place in which the person was domiciled before leaving the United States.”

That’s pretty noncontroversial with respect to citizens who are on active duty in the US armed forces outside the US or those temporarily resident abroad. But what about those who have permanently left the United States? They aren’t around to shoulder the consequences, the argument runs; why should they get a voice? To the extent they’ve transferred their loyalties elsewhere, moreover — many will have dual citizenship — they might actually vote against the interests of the US.

But of course most will have an interest in who is President. On tax policy, for starters, on which front Americans abroad have a lot to be worried about. As for loyalty, that doesn’t really compute any more — would it make sense for a dual citizen in, say, France, to vote for Romney because it would make France look better relative to the US? If the US gets a bad president, the whole world suffers for it.

External citizen voting is now becoming the norm in other countries as well, to the point that many have discrete legislative districts drawn for nonresidents (eg, the representative for North America in the Italian parliament). Constitutional path dependence keeps us from going down that road. In the meantime, it’s good that citizens abroad get to participate, and if their votes make the difference, we shouldn’t think of it any differently than Latinos or blue-collar workers or suburban moms tipping the balance one way or the other.

Weekday News Wrap: Friday, November 2, 2012

by Jessica Dorsey

UK Supreme Court Rejects Jack Goldsmith’s Interpretation of GC IV

by Kevin Jon Heller

I blogged late last year about the UK Court of Appeal’s judgment in Secretary of State for Foreign and Commonwealth Affairs v. Rahmatullah, which implicitly repudiated a little-known OLC memo written by Jack Goldsmith that concluded “operatives of international terrorist organizations” are not “protected persons” for purposes of Article 49 of the Fourth Geneva Convention — a provision that prohibits “[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not… regardless of motive.”  The UK Supreme Court issued its judgment in the case yesterday.  Unlike the Court of Appeal, the Supreme Court explicitly rejected Goldsmith’s argument:

33.    Mr Eadie pointed out, however, that the same opinion from Mr Goldsmith expressed the unequivocal view that Al-Qaeda operatives found in occupied Iraq are excluded from “protected person” status. That opinion seems to have been based on a narrow interpretation of the qualifying phrase “find themselves” as applied to those who come to be in Iraq at the material time. The presence of such as Mr Rahmatullah in Iraq could not, Mr Goldsmith suggests, be attributed to happenstance or coincidence. He was therefore not a protected person under the convention.

34.    It is not necessary to deal with this argument, although, if it were, I would have little hesitation in dismissing it. To make happenstance or coincidence a prerequisite of protection seems to me to introduce a wholly artificial and unwarranted restriction on its availability under the convention. But, in any event, the position of the UK government, as evidenced by the Joint Service Manual, is plainly at odds with the stance taken by the US as to the application of GC4 to members of Al-Qaeda. This is confirmed by a statement in a report by Intelligence and Security Committee on The Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq: (2005) Cm 6469. At para 8 of that report it is stated that, “the UK regards all personnel captured in Afghanistan as protected by the Geneva Conventions”. Against this background it is simply not open to the Secretaries of State to suggest that the convention does not apply on the basis that Mr Goldsmith has advanced.

35.    Given that GC4 does apply to Mr Rahmatullah, how does that bear on the legality of his detention? Article 49 forbids the forcible transfer of protected persons from the occupied territory, in this case Iraq. It provides: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”

36.    The, presumably forcible, transfer of Mr Rahmatullah from Iraq to Afghanistan is, at least prima facie, a breach of article 49. On that account alone, his continued detention post-transfer is unlawful.

Rahmatullah continues to be detained by the U.S. — illegally, as the U.K.’s highest court has now made clear.

Canadian Council International Law Meeting

by Kristen Boon

The annual CCIL conference in Ottawa is just around the corner.   The program this year is fantastic (as always).  Here is an overview from Prof. Fannie Lafontaine, one of the co-chairs:

From the financial turmoil in Europe and the environmental disasters in Haiti and Japan to the surge for democracy in the Middle East and the resulting civil strife, international relations move from crisis to crisis. The theme of this year’s Canadian Council of International Law (CCIL) Conference, « International Law in Times of Crisis and Emergency », will allow participants to consider the effectiveness of international law as well as its failures in these contexts.  It all begins on Thursday 8 November with a pre-Conference Workshop on ‘Litigation Before International Tribunals’ with six speakers coming from different fields of international law, from trade law to international criminal law. The Conference then begins with a student fair and workshop and the Keynote speech by David Malone, President of the International Development Research Council (IDRC) entitled ‘The United Nations Security Council : Boom or Bust ? », followed by a reception hosted by the Canadian Legal Adviser.

Friday 9 November opens in force with an opening plenary with renowned international law expert Philippe Sands, QC, of University College London. The day presents 15 different panels covering a wide variety of topics within the broad theme of ‘crisis’, from terrorism to the role of international organizations to migration issues to the Responsibility to Protect doctrine to aboriginal issues to the regulation of armed violence to environmental questions to criminal law to food security. And we are not telling you all of it! Friday also offers two thrilling plenary speeches, a first from François Crépeau, UN Special Rapporteur on the Human Rights of Migrants, on the necessity of reconceptualising migration policies an a second one from Jennifer Hillman of Cassidy Levy Kent, a former WTO Appellate Body Member. The night’s famous banquet held in the strikingly beautiful Grand Hall of the Canadian Museum of Civilization will also present Keynote Speaker D.A. Bellemare, MSM, c.r./QC, Ad.E., former Chief Prosecutor of the Special Tribunal for Lebanon and former Commissioner, United Nations International Independent Investigation Commission (UNIIIC). Saturday 10 November is just as rich and exciting, with 11 panels covering issues as varied as conflict resolution and justice, international arbitration, multinational enterprises, health care in war zones, the rules governing financial crises, development and humanitarian assistance and extraterritorial jurisdiction. Saturday also presents a stimulating plenary panel on the Security Council with David Malone and Rohan Mukherjee from Princeton University

The full program and details for registration are available here.  The Conference Co-chairs are Fannie Lafontaine (Laval University)  and Rodney Neufeld (DFAIT).  CCIL Vice-president (Annual Conference) is Robert Brookfield (DFAIT).

The Oxford Guide to Treaties: An Opinio Juris Symposium

by Duncan Hollis

Attentive readers will note our calendar had indicated that we were supposed to start a new symposium today on The Oxford Guide to Treaties.  It appears, however, that we are not immune from hurricane Sandy’s effects.  I’ve received several requests for postponement from participants given this week’s events and I’m also told that much of New York City and other areas in the mid-Atlantic remain off-line and thus would not be able to read along or participate. Thus, after talking it over with a few of my co-bloggers, we’re postponing the symposium for 1 week. So, instead of tomorrow, we’ll start next Thursday (Nov. 8) and run the symposium thru the following Monday (Nov. 12).  So tune in next Thursday when we’ll begin a conversation on various questions of treaty law and practice, including (a) reservations; (b) dynamic and evolutionary treaty interpretation; (c) the new functions treaties perform; and (d) the role of new actors in the treaty-making process.

Weekday News Wrap: Thursday, November 1, 2012

by Jessica Dorsey