Archive for
March, 2013

Events and Announcements: March 31, 2013

by Jessica Dorsey

Upcoming Events

  • On April 2, a book launch co-sponsored by the ICRC and hosted by Georgetown Law’s National Security Law Society will take place along with a discussion on the Relevance of International Humanitarian Law in the United States after the end of hostilities at Georgetown Law School. More information can be found here.
  • The Forum for Economists International holds its next conference May 31–June 3, 2013, in Amsterdam. The submission and registration deadline for presenters is April 15, 2013. However, you may contact the organizers for late submissions.”Papers in all areas of economics – including finance, political sciences, transition economics, law & economics, management, natural resources, monetary issues, Asian economies, European Union, marketing, etc. – and in areas of related disciplines are eligible for presentation.”
  • On March 29, 2013, Columbia Law School hosts the ASIL/NPIG-ASCL/YCC International and Comparative Junior Scholar Workshop.

Calls for Papers


  • The Italian Society of International Law (SIDI-ISIL) has launched a new blog devoted to International Law and EU Law: SIDIBlog. From the description: “SIDIblog is a space for discussion and debate over current issues of Private International Law, Public International Law and European Union Law. All scholars and practicing lawyers having an interest in these topics are invited to participate through posts and comments. Posts are brief pieces (maximum 1500 words) that may discuss a relevant topic, present an innovative idea, or comment upon recent developments. They may be sent to the following e-mail address: sidiblog2013 [at]”

Last week’s post can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

Weekend Roundup: March 23-29, 2013

by An Hertogen

This week on Opinio JurisPeter wrote about the unlikely advocates of international law in amicus briefs submitted in the gay marriage cases before the Supreme Court this week.

Julian was disappointed that despite all the reporting on the Amanda Knox retrial, nobody in the media had bothered to read the US-Italy extradition treaty. Kevin also took aim at the media’s lack of knowledge of international law. He argued that recent reporting on the Tallinn Manual on International Law Applicable to Cyber Warfare grossly overestimates the likelihood that a hacker can legally be killed.

Further on cybersecurity, Roger argued that new restrictions on US federal agencies’ purchase of IT equipment produced in China by companies affiliated to the Chinese government are compatible with the US’ WTO obligations, because of the self-judging nature of the national security exceptions in the GATT and the GPA.

We also hosted a book symposium on Economic Foundations of International Law by Eric Posner and Alan Sykes. In his comment, Andrew Guzman focused on why states should accept more delegation to international institutions. Emilie Hafner-Burton and David Victor discussed how the book helps to identify new areas of international law open to empirical research. Rachel Brewster asked whether a liability rule is always the best option to operate remedies under international law, and Steve Charnovitz disagreed with some of the book’s analysis of the WTO. The authors response to the comments can be found here.

In other posts, Julian updated us on the appointment of a second arbitrator in the Philippines-China arbitration under UNCLOS, and James Hathaway’s  guest post announced the Summary Conclusions of the Roundtable on the Future of Refugee Convention Supervision, proposing the establishment of a Special Committee of Experts to oversee compliance with states’ obligations under the Refugee Convention.

If you’re keen to read more over what for many of you will be the long Easter weekend, check out Deborah’s post about her Foreign Policy article, co-authored with Phil Carter, Obama’s first Deputy Assistant Secretary of Defense for Detainee Policy, on the use of criminal courts in counter-terrorism efforts. Ken also recommended the series on contemporary issues of IHL over at the ICRC’s blog Intercross. And, as usual, we had our weekday news wraps, which celebrated its first birthday this week.

Finally, we also listed upcoming events and announcements, and Anupam Chander provided a guest post on the newly established ASIL Interest Group on International Law and Technology that will meet after next week’s ASIL Annual Meeting.

Many thanks to our guest contributors and enjoy your (long) weekend!


Weekday News Wrap: Friday, March 29, 2013

by Jessica Dorsey

Lots of Media Coverage of Amanda Knox, But Almost No One has Bothered Reading the U.S. Italy Extradition Treaty

by Julian Ku

A depressingly large number of U.S. media outlets are covering the Italian Supreme Court’s decision to order a new trial in the case against Amanda Knox, the American exchange student charged with murdering her British roommate in Italy. Knox was convicted in trial court, but that conviction was overturned on appeal.

I say depressing because this is hardly the most significant international criminal trial going on these days. It is also depressing because most of the U.S. media coverage, and even the “expert” legal commentary, can’t seem to understand that if Italy requests Knox’ extradition, Knox has no double jeopardy defense.

The biggest mistake made by most of the media commentary (I’m looking at you Alan Dershowitz and various law prof types here) is that almost no one seems to have read the U.S. Italy Extradition Treaty.  Article VI reads:

Extradition shall not be granted when the person sought has been convicted, acquitted, or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested

(Emphasis added.) The Requested Party in this scenario would be the United States (Italy would be the “Requesting Party”).  The U.S. has never charged Knox with anything, much less with the murder of her UK roommate.  So Article VI does not bar Knox’ extradition to Italy. Period.

What about the U.S. Constitution’s Fifth Amendment prohibition on Double Jeopardy? Well, the short answer is that the Fifth Amendment’s Double Jeopardy Protection doesn’t apply in an extradition proceeding since the U.S. is not the one trying Knox (they are just handing her over).  The long answer is that even if the Fifth Amendment did apply, under US law, an appeal that overturns a lower court conviction is not an acquittal for purposes of the Fifth Amendment.  That is basically what happened here.  Knox was convicted, then her conviction was overturned on appeal, and then the appellate court judgment was reversed, and a new trial ordered (albeit at the appellate level). This is not double jeopardy, either under Italian law or US law.

So Knox had better get ready to be extradited, or she better get ready to move to Brazil. She has no serious double jeopardy defense here that I can see.  Now, if only someone would tell Alan Dershowitz.

Posner and Sykes Book Symposium: Response by the authors

by Eric Posner and Alan Sykes

[Eric Posner is Kirkland & Ellis Distinguished Service Professor of Law and Aaron Director Research Scholar at the University of Chicago. Alan Sykes is Robert A. Kindler Professor of Law at NYU Law.]

In Economic Foundations of International Law, we provide a treatise-like account of international law from a rational choice perspective. The book builds upon an already considerable body of work by many different authors, and we hope that it will stimulate further research in this area.

We thank Andrew Guzman, Emilie Hafner-Burton, David Victor, Rachel Brewster, and Steve Charnovitz for taking the time to read the book and provide their reactions for this symposium, and Opinio Juris for hosting it. Here we provide a brief response to their comments.

Hafner-Burton and Victor focus on the relationship between political science scholarship and legal scholarship, and see in an empirically grounded economic approach a way to reconcile the disparate focuses of the two disciplines, where in the past scholars in the two disciplines seemed to have trouble communicating with each other. We agree with their sentiments. Political scientists and law professors will always harbor different methodological orientations—political scientists, frankly, have higher standards both for modeling and empirical testing, while law professors are more preoccupied with interpreting legal texts and providing normative recommendations—but the rational choice framework provides a kind of portal between the two disciplines. Both groups understand the language of rational choice even if they find other theoretical constructs used by the other to be bewildering, and the rational choice framework provides a useful way to generate hypotheses for empirical testing. Hafner-Burton has herself been a leading figure in empirical testing of the effects of international human rights law, and although many law professors writing about human rights stubbornly refuse to engage with it, it is obvious that her work, the work of Beth Simmons, and that of other political scientists, will have a major effect on legal scholarship on human rights in the long run. By contrast, we question whether realist theory will ever have an impact on international law scholarship, and doubt that constructivism will ever have a distinctive impact on international law scholarship, though many of its premises and commitments mirror ways of thinking that have long played a role in legal scholarship of all types.

Let us turn from positive to normative. Continue Reading…

Weekday News Wrap: Thursday, March 28, 2013

by Jessica Dorsey

Posner and Sykes Book Symposium: Comments by Steve Charnovitz

by Steve Charnovitz

[Steve Charnovitz is Associate Professor of Law at GW Law]

Economic Foundations of International Law is an introduction to and reference work on the economic approach to analyzing and understanding international law. The book seeks to summarize and highlight the existing literature and to provide an intellectual framework for future scholarship.  In my view, this book succeeds in its purposes.

The book is to be commended for its synoptic coverage of the entire spectrum of public international law. While some interesting topics are underemphasized (e.g., constitutional issues of international law), the book covers issues that I had not expected (e.g., such as exchange rate manipulation). I like the way that the issue of the intersection between international law and domestic law is included as one chapter in Part II “General Aspects of International Law” and the way in which the authors include a Part V on “international economic law” although I would have been happier to see a definition of that term.  The authors included the law of the sea chapter in the same part as their strong chapter on international environmental law, even though some parts of maritime law could have been placed under Traditional Public International Law.

In any event, the broad scope of the book in itself enables the authors to achieve their purpose of providing a valuable reference work on public international law.  Although the book includes an index and a moderate amount of footnotes, the authors missed an opportunity to present a bibliography of sources so that one can see the whole of the body of  literature that the authors seek to promote. The book also suffers in not presenting a conclusion.

Let me now address a few substantive weaknesses: Continue Reading…

Summary Conclusions of the Roundtable on the Future of Refugee Convention Supervision

by James Hathaway

[James Hathaway is the James E. and Sarah A. Degan Professor of Law and the Director, Program in Refugee and Asylum Law at the University of Michigan Law School]

Finally, a break-through on the conundrum of Refugee Convention supervision!  The UN Refugee Convention has languished for more than 60 years without any formal mechanism to provide arms-length international oversight of treaty obligations.  While state parties agree to assist UNHCR to implement its duty of institutional supervision, refugee law has no equivalent of the Human Rights Committee or Committee Against Torture to provide transparent evaluation of state compliance, or to provide authoritative guidance — for example, on such key questions as who qualifies for Convention refugee status, or the rights held by refugees under international law.

In September 2012, Justice Tony North of the Australian Federal Court (and former president of the International Association of Refugee Law Judges) and I co-convened an expert meeting at Downing College, Cambridge, to try to find a way forward on supervision of the Refugee Convention.  Drawing on studies prepared by the Cambridge Pro Bono Project (to be published later this year), a group of leading jurists and scholars from around the world conceived a means to break the deadlock.  The essence of the mechanism proposed is the establishment of a Special Committee of Experts, comprised of judges and others tasked with the issuance of advisory opinions at the request of the High Commissioner, courts, and specialist tribunals. The just-released Summary Conclusions of the Roundtable (.pdf) are now available.

Cybersecurity at the WTO

by Roger Alford

Stewart Baker over at Volokh has a couple of interesting posts here and here on the new cybersecurity legislation that bars federal government purchases of IT equipment “produced, manufactured or assembled” by entities “owned, directed, or subsidized by the People’s Republic of China” unless the head of the purchasing agency consults with the FBI and determines that the purchase is “in the national interest of the United States. Here’s the key language:

Sec. 516. (a) None of the funds appropriated or otherwise made available under this Act may be used by the Departments of Commerce and Justice, the National Aeronautics and Space Administration, or the National Science Foundation to acquire an information technology system unless the head of the entity involved, in consultation with the Federal Bureau of Investigation or other appropriate Federal entity, has made an assessment of any associated risk of cyber-espionage or sabotage associated with the acquisition of such system, including any risk associated with such system being produced, manufactured or assembled by one or more entities that are owned, directed or subsidized by the People’s Republic of China.

(b) None of the funds appropriated or otherwise made available under this Act may be used to acquire an information technology system described in an assessment required by subsection (a) and produced, manufactured or assembled by one or more entities that are owned, directed or subsidized by the People’s Republic of China unless the head of the assessing entity described in subsection (a) determines, and reports that determination to the Committees on Appropriations of the House of Representatives and the Senate, that the acquisition of such system is in the national interest of the United States.

Baker raises the issue of whether such legislation would fall under the security exception in the WTO procurement agreement. Baker expressed concern that “the US Trade Representative’s office had negotiated a strikingly weak security exemption for the WTO procurement code…. The US can make a good case that attacks on the Commerce Department or the Justice Department information systems threaten national security, but it’s hard to argue that the IT systems those departments buy are themselves indispensable for national security.” But he ignores the critical point of the security exception, which is that the provision is self-judging. It doesn’t matter if, objectively speaking, the IT systems are indispensable for security. What matters is whether the United States considers such restrictions to be necessary for its essential security interests.

I have written extensively about the WTO security exception, and the bottom line is that despite numerous security crises that have come before the GATT/WTO–the Marshall Plan, the Falkland War, the Reagan Doctrine, the War in Yugoslavia, the secondary boycott against Cuba, the Arab League Boycott against Israel–there has never been a case actually adjudicating the security exception. The reason is that Member States’s recognize that national security questions are self-judging. Each Member State decides for itself whether action is necessary for its essential security interests.

Article XXI of GATT 1947 and Article XXIII of the Government Procurement Agreement both have such language. Baker focuses on the language in Article XXIII requiring that the procurement be “indispensable for national security or for national defence purposes.” But the operative language is that “[n]othing in this Agreement shall be construed to prevent any Party from taking any action … which it considers necessary for the protection of its essential security interests relating to … procurement indispensable for national security or for national defence purposes.” Unlike the general exceptions, the security exceptions in GATT 1947 and the Procurement Agreement are self-judging, analogous to the political question doctrine in U.S. constitutional law. If the United States makes a determination that Section 516 is necessary for its essential security interests, at least with respect to WTO compliance, that is the end of the matter.

Of course, it may seem counterintuitive that a self-judging exception could be embedded into the WTO agreements, a subject that I discuss in some detail in the article. Wouldn’t such a self-judging exception swallow the rule? For a variety of reasons, the answer is a resounding no. International trade law, viewed by many as the most intrusive branch of international law, has preserved one enclave of complete national sovereignty without undermining the efficacy of the WTO.

Weekday News Wrap: Wednesday, March 27, 2013

by Jessica Dorsey

Game On! ITLoS President Appoints Second Arbitrator in Philippines-China Arbitration

by Julian Ku

Just in case there was any doubt, the Philippines-China arbitration over the South China Sea will go forward.  International Tribunal of the Law of the Sea President Shunji Yanai has appointed a second arbitrator.

The [Philippines] Department of Foreign Affairs (DFA) confirmed on Monday that the Itlos president, Judge Shunji Yanai, appointed Polish Itlos Judge Stanislaw Pawlak to the panel last week, leaving only three more slots to be filled in the tribunal.

Pawlak will join the panel with German Judge Rudiger Wolfrum, the arbiter appointed by the Philippines when it announced its arbitration bid in January.

The Polish judge’s appointment is the first for Yanai, who took on the task of composing the arbitral panel after China announced its rejection of the proceedings.

As I discussed here earlier, China’s refusal to appoint an arbitrator does not in any way divest the arbitral tribunal of jurisdiction under the Annex VII of UNCLOS.  President Yanai now will appoint the remaining three arbitrators, as he would do whether or not China had acted to appoint an arbitrator.

The interesting question is what China will do now.  It seems likely that they will continue to ignore the arbitration and question its propriety.  But China can no longer claim that the arbitration cannot proceed without China’s participation.  This article from the reliably hawkish state-owned Global Times offers a pretty clear-eyed analysis, correctly noting that UNCLOS itself grants the ITLOS arbitral tribunal the power to determine its own jurisdiction, and that UNCLOS also specifies the procedure for appointing arbitrators.  It also notes that China’s position is going to be somewhat more difficult, and that the Philippines is using this legal proceeding to level the playing field somewhat in this maritime dispute.

The nationality of President Shunji Yanai has not gone unnoticed.  As this news broadcast puts it, “Expert Says Nationality of ITLoS President Detrimental to China”.  The broadcast (full of ominous shots of the Japanese flags (interspersed with ominous shots of the U.S. flag since the US is often believed to be behind the Philippines litigation) also notes that Japanese nationals have also acquired other important positions within UNCLOS.  If things start to go south for China in UNCLOS institutions, expect this little factoid about Japan’s nefarious control of UNCLOS institutions to pop up more often in the Chinese media.

China still has the option to show up to contest jurisdiction once the tribunal is constituted. I think they could still do that, and that they would have a plausible case against jurisdiction here. But it is seems that China is committed to its path of rejecting the arbitration. Indeed, if the tribunal finds they have no jurisdiction, China wins.  But if the tribunal rules it can hear the case, expect the denunciations of the Japanese- appointed one-sided illegal tribunal to start flowing.

ICRC Intercross Blog Series on Contemporary Issues in IHL

by Kenneth Anderson

The 2011 ICRC Report, “International Law and the Challenge of Contemporary Armed Conflicts,” raised many issues that get discussed weekly here at OJ.  “Intercross,” the blog page of the International Committee of the Red Cross, has selected four of the leading issues from the report for discussion by experts.  The four are: typologies of conflicts; IHL and terrorism; new technologies of warfare; and multinational operations.  The head of the ICRC legal department, Knut Doermann, introduces the whole series at Intercross, and the current theme – typologies of conflicts – is now underway.  It gets going with a podcast on typology from my old friend, and legal adviser to the ICRC, Jelena Pejic, and then moves to guest posts.  The first is by Geoffrey Corn, well known to OJ readers, course. The second is by my old friend and colleague here at Washington College of Law, Bob Goldman, long an eminent voice in international humanitarian law, human rights law, and particularly their application in the Americas. The whole series is well worth following.

Posner and Sykes Book Symposium: Comment by Rachel Brewster

by Rachel Brewster

[Rachel Brewster is Professor of Law at Duke Law]

One of the many virtues of Eric Posner and Alan Sykes’ new book, “Economic Foundations of International Law,” is that it provides the reader with a theoretically coherent and consistent overview of important international treaty regimes, substantive international rules, and state enforcement practices.  The book is a lucid introduction to international law for students and also contains sophisticated analysis of the dynamics of international legal systems for academics and international lawyers.

A major theme of the book is that state compliance with substantive international rules is not always optimal.  This will be controversial with many audiences, but is extensively defended in the text.  Once the authors shift to this paradigm (where compliance with substantive rules is not the primary goal), then the question of remedies take center stage.  Remedies serve an important sorting function by defining the consequences of breach, permitting (even encouraging) “efficient” breaches, and discouraging those that are inefficient. Remedy law thus receives its own chapter (rare for international law), as well as an extended discussion in the international trade and international monetary law chapters.

If remedies are properly calibrated, then they can support differing levels of enforcement.  To deter any breaches of international law, remedies should seek to eliminate any gains to the breaching party (accounting for the likelihood of detection).  To permit efficient breaches, the remedies need only provide expectation damages to the injured party.  As the authors argue, the creation of a third-party adjudicatory system of limited remedies can actually create more opportunities for “cheating” than a system of unilaterally determined responses to breach.

How one assesses remedies and what is entitled to a remedy are thus important issues to maintaining optimal levels of compliance with international rules.  Posner and Sykes maintain that the best means of operating international remedy regimes is through a liability rule, where a court or arbitrator determines the level of damages, rather than through a property rule, where a court would issue an injunction against a breach and the parties would renegotiate the relevant legal rule (either globally or for the particular case).  Both approaches have costs.  The liability rule may produce errors because the judge or arbitrator cannot correctly assess the level of damage to the injured party.  The property rule allows the parties who have private information on the level of injury or gain to use this information in bargaining, but the property rule can have high negotiation costs and hold-out problems (if bargaining with multiple parties).  The authors argue that the costs of the liability system should be lower in the international context.

Yet we can still debate whether the liability rule approach is really preferable in international law.  First, in bilateral or regional treaties agreements, a property rule may be preferable because the negotiating costs may be relatively low compared to the possible error of a liability rule, and concerns about hold-outs decrease.  Second, most disputes (if not most agreements) are bilateral.  The vast majority of the time, only a few states will bring complaints even if the allegedly breaching policy affects many states.  A number of factors, including power differentials and litigation costs, can prevent states from pursuing high quality cases.  For instance, in the WTO Upland Cotton case, the US policy affected a wide group of cotton-producing states, but only Brazil brought a case against the US.  If most cases are bilateral (or involve a small number of plaintiffs) then, again, negotiation costs and hold-out concerns are lower.  In addition, the property rule may better mimic an optimal remedy.  If only a small number of states bring claims, then a liability rule may be a very good filter for determining efficient versus inefficient breach.  A property rule may (but not always will) be a better filter because one complaining state can bargain for compensation based on the worldwide effects of the policy. Continue Reading…

ASIL Founds a New Interest Group on International Law and Technology

by Anupam Chander

Those interested in the intersection of technology with international law may wish to join a new group formed within the American Society of International Law (ASIL). Headed by Molly Land and Anupam Chander, the International Law and Technology Interest Group (ILTechIG) provides a forum for scholars and practitioners from a variety of international legal fields to exchange ideas about technology’s relationship to international and transnational law. The group is also led by Paul Berman (Co-Chair Elect) and Greg McNeal (Secretary/Treasurer)

Technology poses increasing challenges for international law. For example, international trade treaties must grapples with questions of data flows, privacy, and digital products and services. The emergence of cyberspace challenges traditional conceptions of both civil and criminal jurisdiction. The laws of war must grapple with the development of warfare through drones and the difficulty of identifying state action in the online realm. International environmental law faces advances in nanotechnology, deep seabed mining, space technologies, and even the possibility of geo-engineering. Technology also plays an important role in human rights and humanitarian law, ranging from the use of mobile phones for delivering health services to mapping human rights abuses or disaster response. ILTechIG will help create a focal point for discussion of these various issues.

The group will host a scholarly roundtable at Tillar House (ASIL’s headquarters) in Washington, D.C. on Monday, April 8, 2013, following ASIL’s Annual Meeting. One does not need to be an ASIL member to attend the roundtable, though there is a modest registration fee to defray the costs of meals.

The following papers have been selected for presentation at the April roundtable:

Margot E. Kaminski, Yale Law School
“Copyright Crime and Punishment: The First Amendment’s Proportionality Problem”

Uyen P. Le, UC Davis School of Law
“Online and Linked In, ‘Public Morals’ in the Human Rights and Trade Networks”

Kuei-Jung Ni, Institute of Technology Law, NCTU, Taiwan
“Legal Aspects (Barriers) of Applying Compulsory Licenses on Green Technologies”

David G. Post, Temple University James E. Beasley School of Law
“Some Preliminary Thoughts on ‘Internet Governance’”

Markus Wagner, University of Miami School of Law
“New Technologies, Perfectly Fine Old Law? Autonomous Weapons and ius in bello”

If you are interested in attending, please RSVP to Molly Land (molly [dot] land [at] nyls [dot] edu) by Friday, March 29th.

Weekday News Wrap: Tuesday, March 26, 2013

by Jessica Dorsey

Counterterrorism in Court

by Deborah Pearlstein

Readers might be interested in this piece I’ve posted over at Foreign Policy with a co-author highlighting the virtues of the criminal courts as an essential tool in counterterrorism. Beyond the stats themselves – nearly 500 criminal cases related to international terrorism since 9/11, including 67 cases involving defendants captured overseas according to DOJ -I’d say the real significance of the piece is the co-author: Phil Carter, Obama’s first Deputy Assistant Secretary of Defense for Detainee Policy, who has faced the joys of trying to close Guantanamo firsthand. Here’s a snippet.

The debate about the role of military force in counterterrorism has crystallized recently with arguments for (and here in Foreign Policy, against) a revised, updated, and expanded Authorization for Use of Military Force, the law passed just days after 9/11 that provides the core legal basis for current U.S. counterterrorism operations. The case for a new AUMF builds from the premise that, while our foes may be changing, our need for military force to fight them is no different now than it was in the fall of 2001.

That is a flawed premise. As with the end of World War II or the end of the Cold War, we are at a historic inflection point. The war in Iraq is over, the war in Afghanistan is ending, and the United States and its allies have disrupted, dismantled, and degraded al Qaeda and many of its confederates. We now have a wealth of tools and capabilities to fight terrorism — tools that did not exist in 2001. The time has come for the United States to transition from its current war footing to a long-term, sustainable counterterrorism strategy. The Abu Ghaith, Harun, and Warsame cases, and the many like them, show we are ready.

Posner and Sykes Book Symposium: Comment by Emilie Hafner-Burton and David Victor

by Emilie M. Hafner-Burton and David G. Victor

[Emilie M. Hafner-Burton is a Professor at the School of International Relationship and Pacific Studies, IR/PS, at the University of California San Diego and Director of the Laboratory on International Law and Regulation. David G. Victor is a Professor at the School of International Relationship and Pacific Studies, IR/PS, at the University of California San Diego and Director of the Laboratory on International Law and Regulation.]

Over the last decade there has been a surge in scholarship on the economics of international law (see Goldsmith & Posner, Posner & Sykes, Guzman and Pauwelyn). On almost every topic in international law—from the practical import of customary law to the repayment of “odious debt” to the laws of war—the economic perspective offers important insights into how international law actually works. At last there’s one book to introduce the basic concepts and illustrate their utility.  Law students and academics, alike, will welcome Eric Posner and Alan Sykes’ Economic Foundations of International Law.

This new book will likely gain most of its readership in law schools, but for scholars the book’s greatest value may lie in helping to deepen communication between political scientists and lawyers who have been part of the “empirical turn” in research on international law. Posner and Sykes—and the method of economic analysis of law—will help political scientists disentangle the many ways that law affects behavior and actually measure those effects.  While quantitative empirical research will never reveal the full color of why states create and honor international law, this line of collaboration between lawyers and political scientists can help reveal exactly which types of international laws actually help states advance their interests and solve collective policy problems.
Continue Reading…

Posner and Sykes Book Symposium: Comment by Andrew Guzman

by Andrew Guzman

[Andrew Guzman is Professor of Law and Director of the Advanced Law Degree Programs at Berkeley Law School, University of California, Berkeley.]

This is a superb book.  I say this without the slightest bit of surprise, as that is what one would expect from these authors.  In addition to the quality of the content, the book is all the more important because there is no comparable tour of international law from a law and economics perspective.  I have disagreements with some of the content of the book – it would be impossible to produce a serious book with respect to which other scholars were in total agreement – but this should now be a central part of the canon, not only of the law and economics of international law, but of international more broadly.

It is perhaps a sign of a maturing discussion within international law that the book does not bother to include a discussion of why studying international law from an economic perspective is useful.  This area of legal scholarship has been slow to embrace analytical approaches and for many years anyone writing in that style felt the need to defend the methodology itself.  It would be wonderful if we have moved past that point.

That said, it is worth noting that one of the benefits of an economic approach is that it encourages us to make clear our assumptions and models of behavior.  In so doing we more fully disclose our intellectual commitments which, in turn, allows others to challenge or build on our claims.  When we disagree, we can more effectively examine one another’s arguments and identify the precise points in dispute.

In my brief comment, I would like to take advantage of this feature and build off of some of what Posner-Sykes say to make a point about international cooperation in general and, more explicitly, in the area of climate change.  I do not know if the authors would agree with my views, but the discipline imposed by an economic approach should, at a minimum, make clear why we disagree.

Continue Reading…

Book Symposium on “Economic Foundations of International Law” by Eric Posner and Alan Sykes

by An Hertogen

This week we’re hosting a symposium on Economic Foundations of International Law, the new book by Eric Posner and Alan Sykes. Here is the abstract:

The ever-increasing exchange of goods and ideas among nations, as well as cross-border pollution, global warming, and international crime, pose urgent questions for international law. Here, two respected scholars provide an intellectual framework for assessing these pressing legal problems from a rational choice perspective.

The approach assumes that states are rational, forward-looking agents which use international law to address the actions of other states that may have consequences for their own citizens, and to obtain the benefits of international cooperation. It further assumes that in the absence of a central enforcement agency—that is, a world government—international law must be self-enforcing. States must believe that if they violate international agreements, other states will retaliate.

Consequently, Eric A. Posner and Alan O. Sykes devote considerable attention to the challenges of enforcing international law, which begin with the difficulties of determining what it is. In the absence of an international constitution, the sources for international law are vague. Lawyers must rely on statements contained in all manner of official documents and on simple observation of states’ behavior. This looseness leads international institutions such as the United Nations to deliver conflicting interpretations of the law’s most basic principles. The authors describe the conditions under which international law succeeds or fails, across a wide range of issues, including war crimes, human rights, international criminal law, principles of state responsibility, law of the sea, international trade regulation, and international investment law.

Andrew Guzman (Berkeley), Rachel Brewster (Duke), Steve Charnovitz (GW Law), Emilie Hafner-Burton (UC San Diego) and David Victor (UC San Diego) have kindly agreed to comment. As always, we welcome reader comments too.

Weekday News Wrap: Monday, March 25, 2013

by Jessica Dorsey

Does the Tallinn Manual Allow States to Kill Hackers? Not Really.

by Kevin Jon Heller

It’s always exciting when the media pays attention to expert reports on international law. Unfortunately, the media all too often gets international law wrong — and recent reporting on the Tallinn Manual on International Law Applicable to Cyber Warfare is no exception. There has been a spate of articles in the past couple of days that breathlessly claim the Tallinn Manual permits the use of lethal force against hackers. The Huffington Post’s article is entitled “Report for NATO Justifies Killing of Hackers in a Cyberwar.” According to the Verge, “Killing Hackers is Justified in Cyber Warfare, Says NATO-Commissioned Report.”  And Silicon Angle claims that “Hacktivists Can Be Killed Under Rules of CyberWarfare.”

Does the Tallinn Manual permit a hacker to be killed? Yes, in extraordinary circumstances. But the articles mentioned above each fail to mention that the Manual imposes very significant limits on the use of lethal force against individuals involved in cyber-warfare — and that all of those limits are based on, and reflect, the traditional rules of international humanitarian law (IHL). There is nothing particularly troubling in the Manual, and I say that as someone who is profoundly sympathetic to hacking collectives like Anonymous. Indeed, properly understood, it almost inconceivable that the Manual would permit a state to use lethal force against Anonymous or a similar collective — no matter how dangerous (in the view of a state) their hacking might be.

To begin with, the Tallinn Manual deserves credit for not conflating the jus ad bellum and the jus in bello

Will International Law Impact the Gay Marriage Cases? Conservatives Seem to Hope So.

by Peter Spiro

It should be no surprise that there is an amicus brief in support of striking down the Defense of Marriage Act from a global angle, charting an international trend towards recognition of same-sex marriages. (The brief is on behalf of a select lawprof group – Harold Koh, Sarah Cleveland, Larry Helfer, and Ryan Goodman, part of a trend toward elite, small-list amici filings also evident here and here.) The brief skillfully plays to the Court’s self-interest and the opportunity to enhance its international prestige: “Courts in other countries have invoked this Court’s reasoning in Lawrence, for example, to strike down laws that impinge upon the intimate relations between gay and lesbian couples. The Court’s ruling in this case is likely to have similar influence.” That’s a line that might appeal to a certain swing Justice.

At the same time, there’s no hint in the brief that international law requires the recognition of gay marriage, an argument that would be hard to make. The brief does no overreaching, well advised in the face of serious blowback to the Court’s recent invocations of international law on the way to progressive results. The caution starts with the cover page: the brief is filed on behalf of “foreign and comparative law experts,” not international law ones.

Leave the international law argument to . . . Jeremy Rabkin?

Rabkin and a group of mostly European academics and former jurists have filed a brief in support of California’s decision (through the ballot measure Proposition 8) to reserve marriage for opposite-sex couples. The basic argument: most countries have left the question to democratic processes, which “national and international courts have overwhelmingly refused to trump.” That fact establishes, the brief argues, that there are “rational, non-invidious reasons based in secular public policy considerations” for a jurisdiction’s refusal to recognize same-sex marriage. Variation on the question is fully compatible with “international norms.” [My quotation marks, not theirs!]

The brief carefully qualifies the salience of international practice. “Of course, foreign law and practice cannot and should not determine the meaning of U.S. Constitutional guarantees.” But that practice apparently stands as an empirical resource, a “lesson,” at least.

In the end, I suspect the Court will ignore foreign and international practice in the Windsor and Perry decisions, consistent with its recent posture to things foreign. But the gay marriage cases might mark an important turning point on this particular front of the Culture Wars. With their brief, conservatives may have conceded the threshold salience of international practices. The door can’t be completely shut on this material, whether the Court expressly acknowledges it or not. Once they’ve played the international law card themselves, conservatives can hardly cry foul next time it’s played against them. (Rabkin himself will have to lose the label “fantasy world” when speaking of international law.) Perhaps conservatives have come to understand that they can win on this turf, too. (Check out Justice Scalia’s dissent in Roper for pointers.) The bottom line: global practice becomes more deeply entrenched in the everyday of American constitutional law.

Events and Announcements: March 24, 2013

by An Hertogen

Upcoming Events

  • On April 8-9, 2013, The Institute for International Law and Justice, New York University School of Law, in partnership with the Schumpeter Research Group at the University of Giessen, is organizing a conference on Innovation in Governance of Development Finance: Causes, Consequences and the Role of Law.  Registration is now open here.
  • Registration is now open for the Twenty-first Annual Conference of the Australian and New Zealand Society of International Law (ANZSIL) to be hosted by the Centre for International and Public Law, ANU College of Law, the Australian National University from July 4-6, 2013 at University House in Canberra, Australia.  This year’s theme is Accountability and International Law, and Professor Harold Hongju Koh will be the Keynote Speaker.
  • If you’re getting ready to attend the American Society of International Law’s Annual Conference on April 3-6, 2013, check out this post on Preparing for ASIL 2013 by our friends at OUP.

Calls for Papers

  • The European Society of International Law (ESIL) Interest Group on Business and Human Rights is calling for papers for its panel on May 23, 2013 at the 5thESIL Research Forum in Amsterdam. A 300 words abstract proposal (Word or pdf format) should be submitted via email to Dr. Olga Martin-Ortega by April 15, 2013. Candidates are requested to include their name and affiliation in the email but not in the abstract itself.
  • Abstract submissions are sought for a conference on Interpretation and International Law, to be held at the University of Cambridge on August 27, 2013, with the support of the Faculty of Law and the Lauterpacht Centre for International Law. Keynote presentations include: Judge Sir David Baragwanath (President, Special Tribunal for Lebanon); Professor Andrea Bianchi (The Graduate Institute, Geneva) and Ingo Venzke (University of Amsterdam). Further details can be found in the call for papers. Abstract submissions must be between 300-500 words in length and should be accompanied by a short resume. Applications should be e-mailed by 1 May 2013, and successful applicants will be notified by late May 2013.



If you have tried to comment on the blog in the past few days, you may have noticed a small change. Before your comment goes online, you are now asked to solve a very simple maths problem. You can avoid having to do this for each comment by becoming a registered user of Opinio Juris. We hope this small additional step doesn’t discourage you from participating in the discussions, but unfortunately we felt compelled to implement it to stop the growing number of spam comments we receive every day.

Last week’s post can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

Weekend Roundup: March 16-22, 2013

by An Hertogen

This week on Opinio Juris, CIA drone strikes remained in the spotlight. Continuing on last week’s post, Kevin tried to get to the bottom of the CIA’s involvement in drone strikes and whether it is sufficient to trigger criminal liability, which sparked a long discussion in the comments with John C. Dehn. Deborah welcomed news reports about a possible transfer of the CIA’s programme to the Defense Department, whose targeting authority she argued is better constrained. She added, though, that the organizational shift would not solve all problems unless transparency improves to ensure political accountability.

We also kept you up-to-date with recent developments in international law. Kristen reported on the decision of the parties to the Convention on International Trade in Endangered Species to expand the scope of the Convention, and Kevin wrote about the latest episode in the battle between Libya and the ICC over al-Senussi. And of course, there were our daily weekday news wraps.

In other posts, Duncan wondered whether high school cyberwar teams include legal advisors; Ken upheld his yearly tradition of posting Joan of Arc’s Declaration of War in 1429; and Roger posted the Google rankings of the most influential international law journals.

If you need inspiration on topics for articles to submit to these journals, check out our events and announcements for a collection of conferences and calls for papers.

Have a nice weekend!

Libya Ignores the ICC

by Kevin Jon Heller

Ben Emmerson, counsel for al-Senussi, has asked the Pre-Trial Chamber to refer Libya to the Security Council for ignoring its February 6 decision ordering Libya to transfer al-Senussi to the Court. Here are the key paragraphs:

3. It has been almost six weeks since the Chamber‟s Order of 6 February, and Libya has failed to comply with every one of these instructions. Libya has failed to make any attempt to transfer Mr. Al-Senussi to the ICC and continues to detain him in Libya in violation of Security Council Resolution 1970 and the orders and requests of the ICC. Libya has ignored a formal request from the Registry to send representatives to The Hague to make arrangements to facilitate Mr. Al-Senussi‟s transfer and has not taken any other action to arrange his surrender.

4. Instead, the Libyan authorities continue to detain Mr. Al-Senussi, and are actively preparing to commence his trial in Libya as soon as possible. In so doing Libya has also violated the injunction contained within the Chamber‟s 6 February Order to the effect that Libya must refrain from any action which could hinder or delay his immediate transfer to the ICC.

5. Libya has also ignored the third order made by the Chamber requiring arrangements to be made for a privileged legal visit by appointed Defence Counsel. Mr. Al-Senussi has now spent six months in detention in Libya (from September 2012 to date) being questioned about criminal allegations without access to counsel. This in itself makes any claims regarding the fairness of proceedings in Libya untenable.


8. This case has reached a point at which the impasse between Libya and the ICC can only be broken by a referral to the Security Council. If the authority of the Court is to be respected, its orders and requests must be complied with. Further latitude would simply enable Libya to perpetuate its tactics of delay, obfuscation and prevarication and its consistent attempts to mislead the Chamber and the Registry as to its true intentions. Libya’s intentions and actions are very clear.

None of this is remotely surprising, of course. But it puts the lie to Libya’s constant claims in Saif’s case to be cooperating fully with the Court. Libya only cooperates when it gets what it wants.

Weekday News Wrap: Friday, March 22, 2013

by Jessica Dorsey

How To Declare War (Anno Domini, 1429)

by Kenneth Anderson

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

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

Update:  Over at Volokh Conspiracy, my friend and co-blogger Ilya Somin gives us an example of a much, much shorter form for declaring war, from the 10th century Prince of Kiev.

Weekday News Wrap: Thursday, March 21, 2013

by Jessica Dorsey

Getting the CIA Out of the Drone Business

by Deborah Pearlstein

From Dan Klaidman of the publication formerly known as Newsweek, here’s what I’d call good news: “Three senior U.S. officials tell The Daily Beast that the White House is poised to sign off on a plan to shift the CIA’s lethal targeting program to the Defense Department.”

There’ve been hints in the press before that new CIA Director John Brennan in particular favored this approach, but this makes it sound as though it may soon become a reality. Why do I think it’s good news, at least on the relative scale of U.S. targeting operations? A combination of reasons, both legal and organizational, which tend to persuade me that Defense Department (DOD) targeting authority is better constrained than CIA. Continue Reading…

Google Rankings of the Most-Cited International Law Journals

by Roger Alford

For those of you who are trying to decide where to publish your article during this submission cycle, my friend and former colleague Rob Anderson has identified an interesting Google metric for measuring the most-cited international law journals. As he notes:

“The rankings are based on Jorge Hirsch’s “h-index,” which is an alternative to impact factor as a measure of a journal’s importance. The new Google rankings will be yet another entrant for ranking law reviews alongside Washington and Lee’s rankings.”

Here’s the Google Scholar h-index ranking of international law journals:

1. American Journal of International Law
2. Human Rights Quarterly
3. European Journal of International Law
4. American Journal of Comparative Law
5. Virginia Journal of International Law
6. European Law Journal
7. Chicago Journal of International Law
8. Journal of International Economic Law
9. Global Governance: A Review of Multilateralism and International Organizations
10. Common market law review
11. Journal of International Criminal Justice
12. International Journal of Constitutional Law
13. Fordham International Law Journal
14. International Journal of Transitional Justice
15. German Law Journal
16. Vanderbilt Journal of Transnational Law
17. Human Rights Law Review
18. Cornell International Law Journal
19. Michigan Journal of International Law
20. New York University Journal of International Law & Policy

You can also see how international law journals rank relative to other journals here.

It is worth emphasizing that not every international journal is in the Google Scholar database, so one should take these rankings with a grain of salt. For example, neither the Harvard International Law Journal nor the Yale Journal of International Law is in the Google Scholar database. But at least for those journals that are in the database, it gives one a good sense of the relative influence of each journal.

If you are trying to compare the rankings of each journal where your article has been accepted, you can type the name of the journal into the Google Scholar search engine to get the h-index for that journal. The higher the h-index score, the more cited the journal.

Weekday News Wrap: Wednesday, March 20, 2013

by Jessica Dorsey

Cyberwar Games . . . In High School

by Duncan Hollis

I got my first taste of international law some 25 years ago when I joined my high school’s model UN team.  So, what does it says that today’s high school students have model cyberwar teams?  The link’s a bit short on details, but, I wonder whether they have a student playing the lawyer on each team?  I’d imagine any cyberwar scenario must trigger serious legal questions (e.g., the rules for active defense, distinction, and proportionality). Still, I’m guessing the answer is “no”.  Indeed, I’d bet the cyberwar gaming model has yet to integrate legal rules let alone norm entrepreneurs to advocate for them.  Readers with more info are welcome to weigh in.

Hat Tip:  Eugene Hsue

Weekday News Wrap: Tuesday, March 19, 2013

by Jessica Dorsey

Expanding the “Jaws” of CITES

by Kristen Boon

States parties to the Convention on the Trade in Endangered Species (CITES) voted to list five new commercially valuable shark species under Appendix II last week, notwithstanding an attempt to reopen the discussion in the final plenary by some dissenters. The international trade in oceanic whitetip (Carcharhinus longimanus), scalloped hammerhead (Sphyrma lewini), great hammerhead shark (Sphyrna mokarran), smooth hammerhead shark (Sphyrna zigaena) and the porbeagle shark (Lamna nasus) will now be restricted.  These species have been harvested in huge numbers for their valuable fins and/or meat.   On the day of the vote, Susan Lieberman of the PEW Environmental Trust said “today was the most significant day for the ocean in the 40-year history of CITES.”  This CITES press release gives more details on the measures.

Under CITES, species listed under Appendix II are those “that are not necessarily now threatened with extinction but that may become so unless trade is closely controlled… International trade in specimens of Appendix-II species may be authorized by the granting of an export permit or re-export certificate.  Permits or certificates should only be granted if the relevant authorities are satisfied that certain conditions are met, above all that trade will not be detrimental to the survival of the species in the wild.”

A similar attempt was made to list Bluefin Tuna on Appendix II in 2010, but this failed to garner enough votes.  I blogged about it here, and described it as an attempt at regime shifting (away from ICCAT, the RFMO with jurisdiction over tunas, and towards CITES).

The CITES listing is only one piece of good news for sharks however.  On the same day, a separate UN Agency, the Food and Agriculture Organization, released a report underscoring the critical condition of other shark populations in the Mediterranean and Black Sea.

In addition to sharks, a number of tropical timber species were added onto CITES Appendices, which will be enforced by a number of sophisticated new timber tracking technologies.

An attempt to list Polar Bears was defeated.    The discussion (which pitted Canada, which opposed the listing as it exports some polar bear parts, against the United States) was noteworthy because there was a difference of opinion with regards to the cause of the threat – climate change or hunting practices.

As I noted in my blog about tunas, there are few restraints on high seas fishing due to the principle of open access.  It has thus been difficult to create regimes that can effectively regulate the fishing of migratory species.  These additions to the CITES Appendices thus mark both an important expansion in the scope of CITES and an attempt to protect a broadening range of scarce natural resources that are subject to commercial exploitation.

Weekday News Wrap: Monday, March 18, 2013

by Jessica Dorsey

Is the CIA in the Drone Kill Chain? (Answer: Likely.)

by Kevin Jon Heller

Wells Bennett calls my attention to this statement by Marc Ambinder in a recent article in The Week entitled “Five Truths About the Drone War”:

The CIA does not “fly” drones. It “owns” drones, but the Air Force flies them. The Air Force coordinates (and deconflicts) their use through the CIA’s Office of Military Affairs, which is run by an Air Force general. The Air Force performs maintenance on them. The Air Force presses the button that releases the missile. There are no CIA civilians piloting remote controlled air vehicles. The Agency has about 40 unmanned aerial vehicles in its worldwide arsenal, about 30 of which are deployed in the Middle East and Africa. Most of these thingies are equipped with sophisticated surveillance gear. A few of them are modified to launch missiles. The Air Force owns many more “lethal” RPVs, but it uses them in the contiguous battlefield of Afghanistan.

Wells points out at Lawfare that “if Ambinder is correct, then it is military personnel who do the drone-flying and the button-pushing, and military personnel can invoke a public authority justification for strikes implicating 1119, in Kevin’s view.” In other words, Wells suggests that it might be irrelevant whether CIA officers are entitled to a public authority defence, because they may not actually be involved in lethal drone attacks, including the one that killed al-Awlaki.

I completely agree with Wells’ restatement and application of my position on the public authority defence. But I am less sure that Ambinder’s “truth” insulates CIA from potential criminal liability. Ken Dilanian, a leading national-security reporter, had a long article in the Los Angeles Times last month discussing the possibility of the military taking over much of the CIA drone program. Ambinder’s reporting seemed to contradict Dilanian’s article, so I tweeted Dilanian about it. Here was his reply:

Dilanian is right: the articles don’t necessarily contradict each other. Ambinder says that the military flies the drones and pushes the button that launches the weapon; he does not claim that the military chooses the targets and makes the decision to launch the attack. There are some interesting questions about what it means for the CIA to “give the order to fire,” but it seems clear that CIA officers are still involved in lethal drone attacks in a manner that gives rise to a potential violation of the foreign-murder statute — as conspirators or instigators or as aiders-and-abettors. So the fact that a CIA officer is not entitled to a public authority defence remains an important issue.

Events and Announcements: March 17, 2013

by Jessica Dorsey

Calls for Papers

  • The Jersey Legal Information Board presents Law Via the Internet: Free Access to Law in a Changing World on September 26-27, 2013. The conference will address the impact of online publishing on e-democracy, access to law and the rule of law, e-learning, privacy and open government in legal publishing, and emerging patterns of information access and usage.Deadline for Proposals: March 31, 2013. Abstracts should be no more than 500 words.
  • The Center for Middle Eastern Studies at Lund University and the Issam Fares Institute of the American University of Beirut are embarking on a multi-year research project to study the history and contemporary dynamics of human rights in the Arab world. The project focuses on the relationship between research on human rights theory and principles broadly defined, advocacy at the international, regional, and local levels in the Arab world in the form of pressure as well as knowledge production, and the formation of public policies related to human, civil, social and political rights throughout the region. The initiative is soliciting contributions, in the form of research essays, interviews, roundtables, or speculative essays, from scholars, activists, and even government officials working on the above issues. Submissions will be considered for publication on Jadaliyya and potentially for conference and manuscript purposes.Submissions should be 1200-1500 words. Submissions or ideas should be sent to Mark LeVine, at mlevine [at] uci [dot] edu.


  • Readers who found our symposium on Curtis Bradley’s book this week interesting might like to check out an upcoming event on Customary International Law: What is its role in the U.S. legal system? to be held on Friday, March 22, 2013 at ASIL’s Tillar House Headquarters (2223 Massachusetts Avenue, NW, Washington, DC) from 12 – 1 p.m. Prof. Bradley will be joined by Professors Bradford Clark (GWU Law) and Carlos Vazquez (Georgetown Law) to discuss the role that the fundamental legal principle of Customary International Law does and should play in U.S. domestic courts. You can register online here.
  • The Dickson Poon School of Law at King’s College London presents the International Graduate Legal Research Conference (IGLRC) on 8 and 9 April, 2013. The 2013 keynote lecture this year will be given by Professor David Caron, the newly appointed Dean of the Dickson Poon School of Law. The title of his lecture is  ‘Scholarship (n): What is valued as, What is, Thrust of‘ and it is intended to set a reference point for discussions at the conference. The IGLRC is comprised of Panel and Poster Sessions. The Poster Session presents a wonderful opportunity for Conference participants to debate and discuss cutting edge legal research in a supportive environment. Registration information is found here and more information about the IGLRC can be found here.
  • The Sydney Centre for International Law is a holding a conference entitled Facing Outwards: Australian Private International Law in the 21st Century on Wednesday, April 10, 2013. A conference flyer may be found here. For further information and registration, click here.
  • Registration is now open for the Spring Conference of the International Law Association (British Branch) which will take place in Oxford on April 12 and 13. The theme of the conference is “The Changing Face of Global Governance: International Institutions in the International Legal Order”. The conference will explore the changing nature of international institutions and their impact on international governance, international law-making and law-enforcement. Papers address the role of international institutions in a wide range of areas, including the maintenance of peace and security, international economic law, environmental law, law of the sea, international criminal law, as well as the regulation of technology and health. The Keynote Lecture and Inaugural Oxford Global Justice Lecture will be delivered by Patricia O’Brien, United Nations Under Secretary General for Legal Affairs and Legal Counsel.
  • Golden Gate University will host its Annual Fulbright Conference April 12, 2013 in San Francisco, California, with the theme International Law in a Multipolar World. This event which will bring together some of the region’s leading experts and scholars in international law. In addition, some Fulbright scholars have accepted invitations to attend or present at this event. We are proud of maintaining a strong tradition of providing legal training in the area of international law to the students in our LL.M. and S.J.D. in International Legal Studies Programs. Professor Dr. Michael C. van Walt van Praag, will deliver the keynote address. Register online here. With questions, contact Brad Lai at blai [at] ggu [dot] edu.
  • The inaugural London International Boundary Conference will take place on 18 and 19 April 2013 at the Royal Geographical Society, London. Speakers at the Conference are among the world’s leading experts and practitioners in the effective resolution of territorial disputes. They will examine recent developments in disputed “hotspots” around the world, and discuss new and emerging ideas for the resolution and management of territorial disputes, from legal, geopolitical, technical, commercial and other viewpoints. The Conference will also run a half-day technical workshop at King’s College London on the afternoon of 17 April 2013, offering a practical introduction to maritime limits and boundaries. For further details (including speakers, pricing and registration), click here.
  • The Sandra Day O’Connor College of Law, Arizona State University, presents Can International Law Support Changes to Federal Indian Policy? Implementing the United Nations Declaration on the Rights of Indigenous Peoples Fri., April 19, 2013.
  • This year’s Venice Academy of Human Rights will take place from July 8-19, 2013 at the Monastery of San Nicolò in Venice, Italy. The theme of this year’s academy is Obligations of States. You can view the detailed program here.Online registration closes May 5, 2013. The fee is €600 and a maximum of 60 participants will be selected.

Last week’s post can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

Weekend Roundup: March 9-15, 2013

by An Hertogen

Our main event this week was a book symposium on Curtis Bradley’s new book “International Law in the US Legal System“. On the first day, the symposium focused on treaties with comments by David Moore and Jean Galbraith.  Attention turned to international delegations on day two. Julian welcomed the book’s attention to questions of constitutional structure, but disagreed that accession to the International Criminal Court would not create delegation problems. Kristina Daugirdas asked whether the presumption of non-self-execution as a solution to questions of delegation could make it harder for the US to comply with its international obligations. On day three, Bill Dodge and Mark Weisburd discussed the position of customary international law in the US legal system. Finally, Mike Ramsey and Ingrid Wuerth discussed war powers and international law, and Curtis Bradley responded to all comments.

All commentators wholeheartedly recommended the book, so maybe it can follow in the footsteps of Duncan’s book “The Oxford Guide to Treaties“, about which we had a symposium late last year, and win an ASIL Certificate of Merit.

Deborah asked whether the US needs a new authorization to use force against the new jihadist groups in North Africa and the Middle East that are only distantly related to the “original” Al Qaeda, or whether other options that are already legally available would be sufficient.

Our bloggers have been active lately: Kristen Boon posted the abstract to her essay on lex specialis and the responsibility of international organizations, while Roger’s teaching took him to the Philippines where he witnessed first hand how microfinance had helped transform a mountain village.

Speaking of affecting change,  if this post on Lawfare, pointed out by Ken, is correct, Kevin may have achieved every academic’s dream of our work (a blog post even!) affecting government policy. In a follow-up post, Kevin argued why a CIA drone operator cannot invoke the public authority defense. In other posts, Kevin continued the debate on the power to capture or kill  with his response to Ryan Goodman’s rebuttal over at Lawfare. Kevin also posted about Philippe Sands’ decision to quit the LibDems over their support to the UK’s new justice and security bill, counted the legal errors in an article in the Jerusalem Post reporting about the request by an Israeli law firm to the ICC Prosecutor to open an investigation against the Palestinian President Abbas and nine Hamas members, and updated us on Libya’s latest procedural steps in slowing down the admissibility challenge.

As every week, we listed events and announcements  and provided you with daily weekday news wraps.

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

Yep, Libya Is Stalling Concerning the Documents it Seized from the OPCD

by Kevin Jon Heller

A couple of weeks ago, I noted that the Pre-Trial Chamber had ordered Libya to return the documents it wrongfully seized from Melinda Taylor during her privileged meeting with Saif Gaddafi. I also predicted that Libya would try to avoid complying with the order by filing various motions challenging the Pre-Trial Chamber’s decision.

Guess what? Libya has filed two motions in response, one asking for leave to appeal and the other asking the Pre-Trial Chamber to reconsider its decision. The arguments are the same in both motions, and the reconsideration motion doesn’t even cite any legal basis — in the Rome Statute, in the Rules of Procedure and Evidence, or in ICC jurisprudence — for being able to request the Pre-Trial Chamber to reconsider its decision. The leave for appeal motion at least points to Art. 82(1)(d) of the Rome Statute — but as the OPCD points out in its response, that provision permits only the Prosecution and Defence (“Either Party”) to seek interlocutory review of a Pre-Trial Chamber decision.

Moreover, even if the Pre-Trial Chamber erroneously allows Libya to invoke Art. 82(1)(d), that provision only permits interlocutory review of “[a] decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial.” Whether the documents were wrongly seized has nothing to do with the fairness or expeditiousness of Libya’s admissibility challenge; they are relevant only to Libya’s prosecution of Saif in Zintan for allegedly violating national security and trying to escape custody, charges that — as Libya itself has admitted in the past — do not involve the “same conduct” that is at issue in the ICC proceedings. The OPCD makes the point well in its response:

68. When stripped of its indignation and rhetoric, it is quite clear that the current Request actually bears no relation to the Impugned Decision, but is simply a last ditch stalling tactic by the Govemment in order to obtain more time for its admissibility challenge. However, in light of the fact that the Impugned Decision only concems the discrete question as to the Government’s obligation to retum these documents and destroy any copies, even if the Appeals Chamber were to grant suspensive effect of the Impugned Decision, this would have absolutely no impact on the pending admissibility proceedings. Appellate review would therefore fail to advance admissibility proceedings, which are already at a very advanced stage.

Once again, let me express my hope that the Pre-Trial Chamber will resolve Libya’s admissibility challenge sooner rather than later. Each time it permits Libya to engage in these kind of stall tactics, the ICC loses a bit more credibility.

Weekday News Wrap: Friday, March 15, 2013

by Jessica Dorsey

Israeli Law Firm Wants the ICC to Investigate the PA and Hamas

by Kevin Jon Heller

This according to a bizarre — and bizarrely inaccurate — article in the Jerusalem Post. How many errors can you find?

An Israeli law firm on Thursday formally announced its request to the prosecutor of the International Criminal Court, Fatou Bensada, to open a criminal investigation into violations by Palestinian Authority President Mahmoud Abbas and nine members of Hamas for war crimes, crimes against humanity and crimes of aggression.


After years of public threats by the PA to file such a request or case against Israeli soldiers and political leaders, an Israeli lawyer, Mordechai Tzivin, was the first to strike, filing a complaint and request for an investigation.

The request is unprecedented not only because it involves the Israeli-Palestinian conflict and is against “Palestine” as a state and its leaders such as Abbas and nine Hamas members, but also because it is filed by an individual law firm as opposed to by a state.

Generally speaking, the ICC can only hear cases filed by states.

However, as the Tzivin wrote in his request to Bensada, the ICC prosecutor has a little known and almost entirely unused power to essentially self-open an investigation and self-file an indictment against individuals for international law violations.

The power, referred to as the prosecutor’s “propio motu” power, is generally not used by the prosecutor because it requires special approvals from the ICC itself and leaves the prosecutor’s office exposed for using an extraordinary measure not requested by any state.


Asked whether he had coordinated his move with Israeli officials, Tzivin said he had spoken with top legal officials in all of the key ministries as well as a top official in the security establishment.

Despite Israel’s official position that there is still no state of Palestine, Tzivin said that he was either told that he had their blessing or that at least no one told him to hold back.

Here’s my count: (1) the ICC does not yet have jurisdiction over the crime of aggression; (2) there is nothing remotely unprecedented about a private individual asking the Court to investigate a situation; (3) it is not true that, “generally speaking,” the Court can hear only cases brought by states; and (4) the Prosecutor’s proprio motu power is not remotely “almost entirely unused” (Kenya, Cote D’Ivoire?).

Did I miss any?

Bradley Book Symposium: Response to the Commentary on International Law in the U.S. Legal System

by Curtis Bradley

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

I want to give my sincere thanks to the eight contributors who commented on my book this week as part of the Opinio Juris online symposium:  David Moore, Jean Galbraith, Julian Ku, Kristina Daugirdas, Bill Dodge, Mark Weisburd, Mike Ramsey, and Ingrid Wuerth.  Each of these contributors offered valuable feedback on aspects of the book, and I am extremely grateful for their insightful observations.

The book covers a wide range of topics concerning the role of international law in the U.S. legal system, including the domestic status of treaties and customary international law, the validity of executive agreements, delegations of authority to international institutions, Alien Tort Statute litigation, sovereign and official immunity, criminal law enforcement, and the U.S. conduct of war.  At one time or another, I have written law review articles relating to most of these topics.  As the contributors to the symposium observed, however, the book is not an effort to re-argue positions that I have advanced in scholarship over the years.  Instead, I have attempted in the book to guide readers through the competing arguments in the relevant debates, while providing a general sense of how the law has evolved and where it stands at the present time.

The book emphasizes considerations of constitutional structure, something that is now fairly common in scholarship relating to international law in the U.S. legal system but was less common when I began teaching and writing in the mid-1990s.  Another theme of the book is that when international law operates in the U.S. legal system, its role is often mediated by domestic laws and institutions.  This does not mean that international law is unimportant in the U.S. legal system, and in fact the book is filled with examples of the significant roles that international law can and does play.  But it does mean that the international law that is applied in the U.S. legal system has a distinctively American gloss.  The book further highlights how the U.S. legal system not only receives international law but also frequently contributes to it, on issues such as treaty reservations and sovereign immunity.

The symposium contributors have addressed a number of specific propositions in the book.  Here are some brief comments on each of their posts:

Continue Reading…

Bradley Book Symposium: Ingrid Wuerth comments on International Law and War Powers

by Ingrid Wuerth

[Ingrid Wuerth is Professor of Law at Vanderbilt Law School]

War Powers and the War on Terrorism, the final chapter of Professor Bradley’s book, is excellent.  To be sure, I disagree with Professor Bradley on some points, so had I written the chapter it would have approached certain issues differently.    But rather than use this space to rehash those debates, I would like to offer a few broader thoughts about the chapter and about the issues raised by the book.

Beginning with the war powers chapter itself, what I missed most in the chapter was a clearer historical narrative.  The chapter could have moved forward chronologically, for example, perhaps treating jus ad bellum and jus in bello separately, and by giving a much richer account of international law and war (or the threat thereof), especially in the 18th and 19th centuries.  As it is, the history in this chapter is pressed into the service of contemporary debates and the extent to which early U.S. administrations and courts were consumed by issues of war-initiation and the rules of prize is somewhat lost.  Framing the chapter this way might also have given greater place to international law itself and how it developed over the past two centuries, situating the U.S. experience within those developments, rather than situating international law within domestic separation of powers disputes. Had Professor Bradley taken such an approach, however, he might have sacrificed brevity and clarity, especially for newcomers to the field – and the book is written in part for such readers. So maybe this is less a criticism of the chapter itself, and more a statement about the limitations of the genre.

Continue Reading…

Bradley Book Symposium: War Powers and the President’s Duty to Faithfully Execute International Law

by Michael Ramsey

[Michael D. Ramsey is Professor of Law at the University of San Diego School of Law]

I join the other symposium participants in congratulating Curtis Bradley on a thoughtful, insightful and balanced treatment of an important topic.  This post briefly addresses his discussion of international law and war powers in the U.S. legal system (principally, Chapter 10 of the book) while noting some areas of agreement and disagreement.

Bradley’s central message here is that international law plays a role in shaping U.S. war powers, but “[m]uch of the interpretation and enforcement of international law in this area occurs outside the courts, especially within the executive branch.  … [C]ourts do not typically enforce the international laws of war directly against Congress or the president.”  (p. 281).  Nonetheless, “[e]ven when courts are not involved, the U.S. government gives significant attention to the international laws of war, in part because of concerns about reciprocity with respect to the treatment of U.S. military personnel.”  (Id.)

As the book discusses, a principal exception is the Supreme Court’s decision in Hamdan v. Rumsfeld, which found that President’s Bush’s military commissions for terrorism suspects violated Common Article III of the Geneva Conventions.  (The Court also made some references to international law in deciding the scope of the President’s war powers in its earlier war-on-terror decision Hamdi v. Rumsfeld).  True, Hamdan did not, strictly speaking, apply international law directly, as the Court invoked a statute requiring commissions to comply with the laws of war.  But as Bradley notes (p. 320), the Court surprisingly disagreed with the executive branch’s interpretation of the Conventions, thus imposing an international-law-based judicial check on presidential warmaking.  In general, though, the book finds Hamdan an outlier, instead emphasizing the extent to which, even in the war on terror, the integration of international law into U.S. warmaking policy has been principally a project of the executive and legislative branches.

I agree with much of what Bradley says, so I’ll focus on a point where I don’t agree.  In my view the book underplays the constitutional and historical case that the President is bound by customary international law within the U.S. legal system, including in the exercise of war powers.

Continue Reading…

Weekday News Wrap: Thursday, March 14, 2013

by Jessica Dorsey

Bradley Book Symposium: The Discussion of Customary International Law

by Mark Weisburd

[Mark Weisburd is the Reef C. Ivey II Distinguished Professor of Law at UNC School of Law]

Professor Curtis Bradley’s International Law in the U.S. Legal System is an important contribution to the discussion of a topic of considerable significance.  Thorough in its coverage but accessible to readers with little familiarity with the subject, it is at once an excellent introduction (for someone with a legal background) to the issues it addresses and a useful compilation for those with some familiarity with the field.

This contribution to the symposium addresses Bradley’s chapter on the place of customary international law (CIL) in the federal law of the United States.  The space available precludes my considering all of the subjects of Bradley’s chapter, and I will therefore confine my comments to two of them:  first, the implications of Sosa v. Alvarez-Machain for the methods federal judges use in identifying rules of CIL; second, current controversies over the generation of rules of CIL as a matter of international (not American domestic) law.

Continue Reading…

Bradley Book Symposium: Customary International Law in the U.S. Legal System and the Perils of an All-or-Nothing Approach

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. He is the co-editor (with David L. Sloss and Michael D. Ramsey) of International Law in the U.S. Supreme Court: Continuity and Change (2011).]

One of the many virtues of Professor Curtis Bradley’s new book International Law in the U.S. Legal System is that it presents both sides of the arguments. That is certainly true of the chapters addressing customary international law. For example, Curt and I have differed in the past over whether customary international law is part of the “Laws of the United States” under Article III of the Constitution, so that Congress may, if it wishes, grant the federal courts subject matter jurisdiction over suits arising under customary international law. But he points readers to my argument that customary international law does fall within Article III, while of course giving his own view that it does not (pp. 141-42, 199-200).

Sometimes, however, a subtle slant can sneak into the way an issue is framed. In Chapter 5, Curt tells the by now familiar story that customary international law was understood at the framing to be part of general common law (pp. 142-46), that the Supreme Court’s 1938 decision in Erie Railroad v. Tompkins destabilized the situation by ending the general common law regime (pp. 146-47), and that Sabbatino, Filartiga, and the Restatement (Third) of Foreign Relations Law supported the possibility of customary international law as federal common law (pp. 147-52), before laying out his challenges to “the federal common law claim” (p. 155). He points out that if customary international law were federal common law for Article III purposes (as Filartiga held), then it might also preempt inconsistent state law under the Supremacy Clause of Article VI and bind the President under the Take Care Clause in Article II (pp. 152-54). “It is not clear,” he writes, “what federal law source exists for the wholesale incorporation of CIL into federal common law” (p. 156).

Continue Reading…

Weekday News Wrap: Wednesday, March 13, 2013

by Jessica Dorsey

A Response to Goodman About the (Supposed) Duty to Capture

by Kevin Jon Heller

Ken noted last week that Lawfare has been hosting an ongoing debate over Ryan Goodman’s fascinating new article “The Power to Kill or Capture Enemy Combatants,” which is forthcoming in the European Journal of International Law. I contributed a long post criticizing Goodman’s claim that Art. 35(2) of the First Additional Protocol — which provides that “[i]t is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering” — supports the existence of a duty to capture instead of kill. Goodman has now responded with a long post of his own in which he claims that my post is “riddled with errors.”

I don’t have time to recapitulate the entire debate; interested readers should head to Lawfare. (Bobby Chesney’s introduction to Goodman’s most recent response contains links to all of the contributions.) I also don’t have time to respond to all of my supposed errors. Instead, in this post, I simply want to address three of Goodman’s most problematic claims, all of which are based on selective quotation of the historical sources he uses to build his argument.

Goodman’s first problematic claim is that an article by Henri Meyrowitz supports his reading of Art. 35(2). Here is what he says in his response to my Lawfare post (emphasis mine)…

Philippe Sands Quits the LibDems

by Kevin Jon Heller

Like many young, lefty international lawyers, one of my intellectual heroes is Philippe Sands. He is a remarkable scholar and an equally gifted advocate, and he puts both to good use no matter how unpopular the position or client — as his representation of the Libyan government in its challenge to the admissibility of the case against Saif Gaddafi demonstrates. Above all, he has always struck me as a deeply principled person. So I am not surprised in the least that he has decided to quit the Liberal Democrats to protest the party’s unconscionable support for the UK’s new justice and security bill, which creates a system of secret courts in which individuals who allege that they have been tortured and kidnapped will not be able to see the government’s evidence against them. Here is a snippet of his open letter in The Guardian:

After the London attacks of July 2005 the Lib Dems stood firm against the idea that the “rules of the game” had changed, committed to respect of human rights for all. They opposed executive authority, secrecy and the rise of the “security state”. In government, on many issues, that position has been maintained. But to my great regret, last week the parliamentary group was whipped to vote in favour of the introduction of secret court hearings in part 2 of the justice and security bill. If adopted, the bill will put British judges in the invidious position of adjudging certain civil claims under conditions in which one party will not be entitled to see the evidence on which the opposing party relies. Last year Lib Dem members voted overwhelmingly against this. They did so again at their conference on Sunday. Their approach was informed, reasonable, principled and correct. Why was it ignored?

This part of the bill is a messy and unhappy compromise. It is said to have been demanded by the US (which itself has stopped more or less any case that raises ‘national security’ issues from reaching court), on the basis that it won’t share as much sensitive intelligence information if the UK doesn’t rein in its courts. Important decisions on intelligence taken at the instigation of others are inherently unreliable. We remember Iraq, which broke a bond of trust between government and citizen.


Secrecy begets secrecy. I have listened to all the arguments, and concluded this is a compromise too far, neither necessary nor fair at this time. The point has been made eloquently in recent days by Dinah Rose QC and Jo Shaw. Their principled arguments have long had my full support and so I have joined them in resigning from the Liberal Democrats.

Kudos to Philippe for standing up for what he believes in — and more importantly, for what is right.

Bradley Book Symposium: Kristina Daugirdas on Delegations to International Institutions

by Kristina Daugirdas

[Kristina Daugirdas is Assistant Professor of Law at Michigan Law]

I’m delighted to have the opportunity to comment on Professor Curt Bradley’s excellent new book. Before getting to the question of how the decisions and orders of international institutions are integrated into U.S. law—Professor Bradley’s main focus in this chapter—it’s worth pausing to consider why states bother to create international institutions at all. States could have drafted a series of treaties that simply codified substantive obligations relating to various issue areas. Instead, they created institutions and delegated authority to them to do things like monitor how diligently states are implementing their international obligations, resolve disputes about the scope of those obligations, and revise those obligations in response to new technological developments or growing scientific knowledge. These delegations can make the regimes more effective by spurring compliance and ensuring that states’ international obligations remain current.

It’s exactly the features that make international institutions so useful that raise constitutional questions for the United States. For example, the Chemical Weapons Convention (CWC) establishes a Technical Secretariat whose tasks include monitoring states’ compliance with their obligations. This inspection regime makes the CWC more effective by increasing the likelihood that noncompliance will be exposed. But some scholars have argued that these provisions are incompatible with the Appointments Clause (because the inspections are undertaken by international officials) as well as the Fourth Amendment’s protections against unreasonable searches and seizures. Continue Reading…

Hollis Treaty Volume Garners ASIL Award

by Peter Spiro

OJ’s own Duncan Hollis has been awarded the American Society of International Law’s “Certificate of Merit for High Technical Craftsmanship and Utility to Practicing Lawyers and Scholars” for his edited volume The Oxford Guide to Treaties. (Other honorees this year are Jeremy Waldron and Petros C. Mavroidis.) From the citation:

The Oxford Guide to Treaties brings clarity to a topic of central importance to policymakers, practicing attorneys, and a wide range of academics. Comprehensive in its scope, and equally valuable both to those coming to treaties for the first time and to those who have spent many years poring over texts, the Oxford Guide provides the reader with detailed explanations of the key rules and issues that mark contemporary international treaty law and practice. With contributions from leading scholars and practitioners, and expertly edited, the Oxford Guide will serve as the authoritative reference volume in this field for years to come.

We had a roundtable on the book on the blog last November. Congratulations to Duncan, very well deserved!

Bradley Book Symposium: The Reality of International Delegations

by Julian Ku

When I was just out of law school and desperately seeking advice as to what to write about, I turned to Professor Bradley for ideas.  He recommended that I buy Louis Henkin’s treatise Foreign Affairs and the United States Constitution (a book I had somehow never heard of during my three years of law school). informs me that I followed Professor Bradley’s advice and bought the book on October 8, 1999.   Thus, thanks to Professor Henkin (and Professor Bradley!), much of my early academic work was inspired by what I learned about in the Henkin treatise.

As Professor Bradley advised me, the Henkin treatise is learned, concise, clear, and comprehensive.  But as much as I respect the treatise, I must admit I have never been happy with the idea of it being the authoritative statement of U.S. foreign relations law.  I found Henkin’s sometimes dismissive treatment of questions of constitutional structure frustrating.  In other words, I always believed that a new foreign affairs law treatise reflecting contemporary debates and understandings was needed.   Well, that treatise has finally arrived in the form of Professor Bradley’s International Law in the U.S. Legal System. Continue Reading…

Weekday News Wrap: Tuesday, March 12, 2013

by Jessica Dorsey

Bradley Book Symposium: The Scope of the Treaty Power

by Jean Galbraith

In February of 1793, President Washington’s cabinet debated the negotiating instructions for a forthcoming treaty with Indian tribes in the Ohio region.  One issue was whether they could authorize the cessation of land back to the Indian tribes.  Thomas Jefferson took the view that this lay outside of the delegated powers of the federal government.  Alexander Hamilton responded “that the power of treaty was given to [the President and the Senate] by the constitution, without restraining it to particular objects, consequently that it was given in as plenipotentiary a form as held by any sovereign in any other society.”  After the other two cabinet members expressed views more in line with Hamilton than Jefferson, Washington urged them all to reach a consensus.  “He seemed to direct those efforts more towards me,” Jefferson recorded dryly, “but the thing could not be done.”

Fast-forward to today – and we are still far from consensus on the exact contours of the treaty power in our constitutional system.  In a chapter on treaties in his excellent new book, International Law in the U.S. Legal System, Professor Curtis Bradley provides a doctrinal map of the treaty power, complete with thoughtful assessments of the level of certainty that attaches to each feature.  In this blog post, I’ll briefly describe Professor Bradley’s overall approach, then focus more specifically on Professor Bradley’s discussion of the scope of the treaty power, and close with a few remarks on the Bond case now pending in the Supreme Court. Continue Reading…

Bradley Book Symposium: David Moore comments on Treaties

by David Moore

[David Moore is Professor of Law at BYU Law]

Curtis Bradley’s “International Law in the U.S. Legal System” is a welcome and significant contribution to U.S. Foreign Relations Law.  Like Louis Henkin’s “Foreign Affairs and the United States Constitution,” it will be a resource that scholars will want to consult and cite as well as recommend to their students and have on reserve.

The portion of the book on treaties addresses a wide-range of topics from treaty creation to non-self-execution to termination.  In addition to providing a clear overview of these topics and the sometimes unsettled questions they present, the discussion reveals an unspoken theme only partially captured by the book’s title.  Given its focus, the book is appropriately titled “International Law in the U.S. Legal System,” but the treatment of international law in U.S. law reveals that the interaction between U.S. and international law is not unidirectional.  International law affects U.S. law, even U.S. constitutional law, but U.S. law also affects international law.

On the incoming side of the relationship, international law produces a range of effects on the domestic legal order.  Most passively, international law presents questions that domestic law must answer.  For example, Bradley notes that the international law of treaties recognizes that state parties may terminate their agreements under certain circumstances, such as material breach of a bilateral agreement.  The international law option to terminate raises the question of who within the domestic order can exercise that option.   Moreover, international law might go further and influence the answer to that question as the nature of international law may functionally favor a particular actor as the one best suited to exercise the termination power.  This sort of effect has arguably occurred in the context of determining the subject matter scope of the treaty power.  Bradley notes repeated historical suggestions that treaty-making might extend only to certain types of treaties or at least to matters of international concern.  International law, however, defines “treaty” very broadly by reference to the nature of the contracting parties and the obligations assumed, largely without reference to subject matter restraints.  Consistent with this approach, treaty-making has spanned a vast range of issues.  The breadth of international treaty-making is almost certainly a contributing factor to the current sense that the Constitution does not impose subject matter limitations on the treaty power.  With the Supreme Court positioned to address subject matter limitations on the treaty-making power next term in Bond v. United States, the link between international law and domestic definition of the treaty power may be broken.  At this point, however, the connection is apparent. Continue Reading…

Book Symposium on “International Law in the US Legal System” by Curtis Bradley

by An Hertogen

This week, we are hosting a symposium on Curtis Bradley’s new book “International Law in the US Legal System“, published last month by Oxford University Press. OUP has kindly agreed to offer Opinio Juris readers a 20% discount, which you can access by clicking on the ad at the right.

According to the abstract, the book

explores the dynamic intersection between international law and the domestic legal system within the United States and covers both settled principles as well as unresolved issues and areas of controversy. Curtis Bradley considers all of the principal forms of international law: treaties, decisions and orders of international institutions, customary international law, and jus cogens norms. He also explores a number of specific topics that are implicated by the intersection of U.S. law and international law, such as foreign sovereign immunity, international human rights litigation, extradition, war powers, and extraterritoriality. As he explains, international law plays an important and sometimes under-appreciated role in the U.S. legal system, but its domestic application is mediated by a variety of structural considerations, including federalism and the separation of powers. This book highlights recent decisions and events relating to the topic (including decisions and events arising out of the war on terrorism), while also taking into account relevant historical materials, including materials relating to the U.S. constitutional founding. The book is designed to be accessible to a wide range of lawyers, judges, law students, and policymakers, both inside and outside the United States.

Each day, two commentators will focus on a particular topic. David Moore (BYU) and Jean Galbraith (Rutgers) will kick off later today with a discussion on Treaties, Self-Execution, and Federalism. Tomorrow, Julian Ku (Hofstra, and of course OJ) and Kristina Daugirdas (Michigan) discuss Delegating Authority to International Institutions. On Wednesday, Mark Weisburd (UNC) and William Dodge (UC Hastings) address the Domestic Status of Customary International Law. On Friday, Michael Ramsey (San Diego) and Ingrid Wuerth (Vanderbilt) wrap up the symposium with a discussion on International Law and War Powers.

We hope that these comments will only be the start of the discussion and that our readers will join in in the comments.

Lex Specialis and the Responsibility of International Organizations

by Kristen Boon

Lex Specialis was a topic of much discussion during the ILC debates on the Responsibility of International Organizations.  The central issue was this:  how broad is the provision, and does it give IOs carte blanche to derogate from or contract around the residual rules of responsibility?   I’ve just posted an article on SSRN here that gives my take.  Here is the abstract:

The International Law Commission’s recent endeavor to progressively develop principles of responsibility applicable to international organizations reignited an old debate: do international organizations share a common set of core attributes? Or are they fundamentally sui generis, given their great variations in mandate, size, and power vis–à– vis member States? The comments submitted by international organizations to the Commission demonstrate that there is very little consensus on the genus of international organizations, and consequently on the application of general rules to these increasingly important and pervasive bodies. Indeed, most organizations took the position that the founding premise of the international legal framework applicable to them should be speciality not generality.

The article is part of a forthcoming book edited by Dr. Maurizio Ragazzi entitled The Responsibility of International Organizations.   The book contains a block buster list of authors.  Keep an eye out – it will be published by Brill.


Weekday News Wrap: Monday, March 11, 2013

by Jessica Dorsey

Events and Announcements: March 10, 2013

by An Hertogen

Calls for Papers

  • The American Branch of the International Law Association and the International Law Students Association (ILSA) have called for submissions for the International Law Weekend 2013 to be held in New York City on October 24-26. The overall theme is Internationalization of Law and Legal Practice, and its aim is to examine how and why an appreciation and knowledge of international law is an increasingly relevant and important professional tool for virtually every lawyer. Proposal should be submitted here on or before March 15, 2013.


  • Registration is now open for the 2013 conference of the Cambridge Journal of International and Comparative Law. On 18 and 19 May 2013, academics, practitioners and students from all over the world will gather in Cambridge for a weekend of discussion and debate under the theme “Legal Tradition in a Diverse World”. Highlights include a keynote address by Judge Yusuf (ICJ); a guest lecture by Prof. Patrick Glenn (McGill); and a keynote debate between Prof. Alain Pellet (Paris X) and Prof. James Crawford (Cambridge), moderated by Prof. Catherine Redgwell (UCL).
  • The inaugural London International Boundary Conference will take place on 18 and 19 April 2013 at the Royal Geographical Society, London.  It will provide a unique and multidisciplinary insight into the complex world of international boundary and sovereignty disputes.  Speakers at the Conference are among the world’s leading experts and practitioners in the effective resolution of territorial disputes.  They will examine recent developments in disputed “hotspots” around the world, and discuss new and emerging ideas for the resolution and management of territorial disputes, from legal, geopolitical, technical, commercial and other viewpoints.  The Conference will examine how these varied, emerging perspectives might inform a more integrated approach to international boundary and territorial disputes.  The Conference, which will be a not-for-profit event, will be hosted by Department of Geography, King’s College London, Volterra Fietta and the United Kingdom Hydrographic Office. The Conference will also run a half-day technical workshop at King’s College London on the afternoon of 17 April 2013, offering a practical introduction to maritime limits and boundaries.


  • The Cambridge Journal of International and Comparative Law is pleased to announce the publication of its Special Conference Issue (vol 1(3)), which is a testament to the high quality and engaging level of debate that took place at the CJICL’s inaugural conference on the theme “Agents of Change: The Individual as a Participant in the Legal Process” on 19-20 May 2012.
  • Beginning this year, the GlobalTrust research project at Tel Aviv University Faculty of Law will study the extent to which states that exercise regulatory functions should take into account the interests and preferences of foreign individuals and communities located outside their boundaries. The project is informed by the observation that by their regulatory measures, states routinely affect the life-opportunities of foreigners without the latter being able to participate meaningfully in shaping those measures. Such decision-making fails to respect the participatory rights of those foreigners and often yields outcomes that are not welfare maximizing and non-egalitarian. Participants in this project will explore the possible moral and legal grounds for requiring states to take other-regarding considerations into account and the institutional mechanisms that could legitimize the external review of states’ compliance with such obligations. Funded by a European Research Council Advanced Grant, the project offers three types of fellowships: post-doctoral, doctoral and short-term visiting fellowships. Further information is available here.
  • The University of Leeds has created a 5 year Research Fellowship in Security and Justice. Further information is available here.

Last week’s post can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

Why the “Public Authority” Defense Does Not Work for the CIA

by Kevin Jon Heller

I’m grateful to KenWells Bennett, and Marcy Wheeler for speculating that my April 2010 blog post on 18 USC 1119, the foreign-murder statute, is the post referred to in today’s New York Times article on the behind-the-scenes machinations that culminated in the CIA using a drone to kill Anwar al-Awlaki. I imagine they are correct; the post fits the timeline and Marcy notes that no other post around that time on a legal blog specifically addressed the foreign-murder statute. If so, it’s a testament to the growing importance of academic blogging.

In this post, I want to discuss the part of the White Paper that seems to be motivated by the questions I raised in my 2010 post — Part III, which argues that killing a US citizen abroad who qualifies as a senior operational leader in al-Qaeda or its associated forces would not be murder because the individual responsible for the killing would be entitled to a public-authority defense. Here, for example, is one statement to that effect (p. 14):

A lethal operation against an enemy leader undertaken in national self-defense or during an armed conflict that is authorized by an informed, high-level official and carried out in a manner that accords with applicable law of war principles would fall within an established variant of the public authority justification and therefore would not be murder.

I have no problem with sections A and B of Part III, which argue that an individual prosecuted for violating the foreign-murder statute would be entitled to argue that the killing was justified because it was conducted pursuant to public authority. I also have no issue with the idea, offered in section C, that a member of the US armed forces would indeed be acting pursuant to public authority if he killed a combatant in an international armed conflict (IAC); in such conflicts, members of a state’s armed forces always have the right to kill — in other words, are justified in killing — members of the enemy state’s armed forces. The existence of the combatant’s privilege in IAC is black-letter international humanitarian law (IHL).

But that is not the end of the inquiry, for one simple reason: al-Awlaki was killed by the CIA, not by the US military. The White Paper does not discuss whether a CIA drone operator would be entitled to a public-authority defense in a prosecution under the foreign-murder statute; indeed, all of the sources cited in III.C regarding the defense (p. 14) — three classic criminal-law treatises and an old state case — claim that the laws of war entitle a soldier to kill the enemy. They say nothing about the right of anyone else to kill.

So would a CIA drone operator be entitled to a public-authority defense? I don’t see how…

How Microfinance Transformed a Filipino Mountain Village

by Roger Alford

“Three years ago I could never have dreamed that we would be selling our tomatoes directly to the restaurants in Manila,” said Johnny Rola. Just a few years ago the poor farmers in this mountain village in northern Philippines had little hope. They would grow a few staple crops and sell it at the local farmers market. They were at the whim of the spot market prices set by the local wholesalers at the village below the mountain, and were struggling to survive.Sitio Mapita 3

Three years ago they were approached by a local microfinance institution, Gulf Bank in Lingayen, about the possibility of selling their produce directly to the Jollibee restaurant chain in Manila, a major food outlet in the Philippines. The major banks won’t lend to the local farmers who have no credit history, collateral, or crop insurance. But microfinance institutions are now filling the gap. In partnership with the National Livelihood Development Corporation, a Philippine government entity, many farmers today have access to microcredit. For someone like Johnny Rola, this development is a godsend. “I’ve been a farmer for thirty years,” said Rola, “and the past three years have been the best years of my life.”

In 2011 Rola joined with forty other local farmers to establish the Sitio Mapita High Value Crop Growers Association as a farming collective. Gulf Bank now loans Sitio Mapita money to buy seeds and fertilizer, and the farmers sell their produce directly to Jollibee restaurants. At harvest time, the farmers deliver the produce to the restaurant chain at a guaranteed price, and Jollibee repays the Gulf Bank microloan and deposits the profits to Sitio Mapita’s savings account.

Together with Catholic Relief Services, Gulf Bank is training the farmers of Sitio Mapita how to transform themselves from poor farmers to budding entrepreneurs. These indigenous farmers have no electricity and no running water. To communicate with the outside world they walk thirty minutes up the mountain to get cell phone reception. So I was amazed when I arrived at the village meeting hall to find spreadsheets with handwritten monthly commodities prices, balance sheets, revenue projections, and production targets posted on the walls on large brown sheets of paper. These farmers have a business plan and big dreams.Mapita 4

“At sunset we used to go to sleep,” said Margarita Rola. “Now we are planning for the future.” They plan to use their profits to improve their lives in ways we take for granted. They dream of electricity, better irrigation, refrigerated trucks, even a high school for their children, who today must choose between becoming farmers after sixth grade or, for the lucky ones, boarding at a high school in a nearby town.

I’m in the Philippines as part of Notre Dame’s award-winning business school class entitled, Business on the Front Lines. The class has around thirty business, law, and peace studies students who focus for a semester on four specific case studies of social entrepreneurship. After weeks of study, the students travel during spring break to the countries and do field analysis. I’m here with six students, and there are three other teams right now in Nicaragua, Rwanda, and Sierra Leone. You can read about their exploits here. We work with Catholic Relief Services, which is one of the largest relief agencies in the world. The goal is not simply education. We are conducting due diligence to recommend how millions in venture philanthropy can best be utilized.Sitio Mapita 2

As we toured the farms, one could feel the pride these farmers felt at what they had accomplished in just three years. Graduate students from the United States were coming to study what these poor farmers were doing to see if their business model might be replicated elsewhere.

The success of farming collectives like Sitio Mapita has garnered attention around the Philippines. Other farmers want in on the action, relishing the idea of microfinance providing a way to reach institutional buyers. Major corporations are taking notice too. Next month Sitio Mapita will contract with Rocky Mountain Coffee to begin growing coffee for sale throughout the Philippines. Coffee has a four-year growing cycle and the start-up costs are large by their standards, so it is a major development in their lives.

The proudest moment of Johnny Rola’s life was when he went to Manila last year and spoke to an audience of one hundred bankers, farmers, and politicians. “I even shook hands with a senator,” he beamed. When I asked him if he went to a Jollibee restaurant in Manila to try one of the hamburgers with his tomatoes in it, he said with a big grin, “Yes! It was quite good.”

The Lord Works in Mysterious Ways – KJH and OLC Edition?

by Kenneth Anderson

Was our very own Kevin Jon Heller, and one of his OJ posts, responsible for causing David Barron and Marty Lederman (widely taken as authors of the Justice Department’s OLC opinion on the lawfulness of targeting Anwar Al-Awlaki with lethal force) to rewrite their memorandum?  Wells Bennett at Lawfare points to an extraordinary passage appearing in a lengthy story in today’s New York Times on targeting Awlaki, by Scott Shane, Mark Mazzetti, and Charlie Savage.  Notes Wells:

[T]he article says that OLC’s legal workup was influenced by “a legal blog that focused on a statute that bars Americans from killing other Americans overseas.”   It is unclear to what legal blog the authors refer (and hard to know for sure what affected OLC’s thinking)—but the timing and content suggest this Opinio Juris post by Kevin Jon Heller.

Congratulations to Kevin for having re-shaped the contours of US government thinking, if that’s true.  I’m not sure whether Kevin would regard this as the Lord Works In Mysterious Ways, or instead the Devil Quoting Scripture for His Own Purposes, but in any case, congratulations. (And thanks to Peter Margulies for telling me about this; I haven’t been on blogs all day, because the day in DC has been beautiful, and I Have A Life, not to mention a chapter owed to Ben Wittes.)

AUMF 2.0

by Deborah Pearlstein

I hope soon to get more directly to the important news of the prosecution of former Al Qaeda spokesman Sulaiman Abu Ghaith in U.S. federal court in New York and much else of interest in our pages, but I didn’t want to let pass without comment the also important piece in the Washington Post this week that the Obama Administration is examining whether it should seek to extend the legal authorization for targeted killing operations beyond those groups currently identified by the 2001 Authorization for Use of Military Force (AUMF). Per The Post: “The debate has been driven by the emergence of groups in North Africa and the Middle East that may embrace aspects of al-Qaeda’s agenda but have no meaningful ties to its crumbling leadership base in Pakistan. Among them are the al-Nusra Front in Syria and Ansar al-Sharia, which was linked to the September attack on a U.S. diplomatic post in Benghazi, Libya. As the article rightly explains, these are “militant groups with little or no connection to the organization responsible for the attacks on Sept. 11, 2001.”

The AUMF has been the cornerstone of U.S. domestic authority to detain and target members of the Taliban, Al Qaeda and “associated forces,” but it is limited by its terms, by Administration interpretation, and by the courts to uses of force against these groups. As the U.S. prepares to leave Afghanistan and as the Al Qaeda that attacked the United States on 9/11 collapses, the AUMF is of decreasing import. More, as Steve Coll recently wrote, distinguishing the AUMF’s target groups from various violent Jihadi successor groups in Yemen, Mali and elsewhere: “A franchise is a business that typically operates under strict rules laid down by a parent corporation; to apply that label to Al Qaeda’s derivative groups today is false.”

So if the AUMF doesn’t authorize the use of force against the next generation of terrorist organization, what should we do? Continue Reading…

Weekend Roundup: March 2-8, 2013

by An Hertogen

This week on Opinio Juris, Kevin argued why the OPCD’s small victory over the return of documents seized by Libya may be important in the longer run because of its consequences for Libya’s admissibility challenge. He also quoted from Libya’s latest submission on the admissibility challenge to argue why it should lose the challenge. Shifting his focus to the US, Kevin asked three questions about AG Holder’s response to Rand Paul.

Tactics were the key word for Julian this week. He assessed two proposals for legal tactics that the US could use to win the cyberwar with other countries, and discussed Argentina’s tactics in the NML v. Argentina sovereign bond litigation.

Kristen Boon pointed out topics of interest at the Human Rights Council’s 22nd session, while Ken Anderson flagged the ongoing debate over at Lawfare and at Jens Ohlin’s Lieber Code about Ryan Goodman’s EJIL article on the power to kill or capture enemy combatants, as well as Jens’ response essay on SSRN.

We also had a wide range of guest posts this week. In a post that unsurprisingly attracted a lot of comments, Sigall Horovitz described how Israel can legally avoid, at least for seven years, an ICC investigation into the West Bank Settlements.

William Dodge updated us on Samatar’s certiorari petition to the US Supreme Court with a post summarizing the who, what and exceptions to state, status-based and conduct-based immunity.

We hosted a symposium on the latest issue of the Harvard International Law Journal. The first article, by Ginsburg, Elkins and Simmons, dealt with an issue that also got some attention on the blog last week: the impact of international human rights treaties on domestic constitutions. Christopher N.J. Roberts’ comments wondered whether the UDHR can be considered a template for domestic changes and what the impact of domestic legal culture is on the understanding of similar rights. Tom Ginsburg responded here.

The second article of the symposium was Natalie Lockwood’s article on International Vote Buying, for which William Burke-White provided the response. He questioned whether a legal prohibition on vote buying would be effective, but applauded the article for its re-examination of the role of economic power in the international community. Natalie’s response addressed whether vote buying and diplomacy can be separated as well as the difference between economic coercion and vote buying.

The third article discussed was Ashley Deeks’ one on Consent to the Use of Force and International Law Supremacy. Comments were provided by Opinio Juris’ own Duncan Hollis. He responded in two posts: one on issues of international law supremacy and another on whether international law should be able to invalidate consent if it manifestly violates the domestic law of the consenting state.

The final article was Moira Paz’ The Failed Promise of Language Rights: A Critique of the International Language Rights Regime, with Efrat Arbel as commentator. Moira’s response is here.

As always, we also provided a listing of events and announcements and weekday news wraps.

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


HILJ Symposium: Moria Paz responds to Efrat Arbel

by Moria Paz

[Moria Paz is a Fellow in International Law at Stanford Law School.]

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

First of all, let me express my thanks to Efrat Arbel for her careful and thoughtful reading, as well as for her comments, for which I am grateful. Arbel and I largely agree on the descriptive analysis of case law in this area, which forms the bulk of the paper, although we may have partially divergent perspectives on the implications. In my comment, I very briefly recap the descriptive component and then discuss the normative elements of the study.

In the paper, I used case law to demonstrate a significant disconnect between official rhetoric in human rights law and much narrower judicial practice in cases bearing on language. Formal pronouncements of the regime as well as prominent human rights scholars celebrate linguistic heterogeneity and seek to harness the international legal regime to protect, indeed even to create, linguistic and cultural diversity. When cases bearing on language reach major human rights courts and quasi-judicial institutions, and especially the United Nations Human Rights Council (UNHRC) and the European Court of Human Rights (ECtHR), these enforcement institutions do not in fact demand that states accommodate substantive diversity. The UNHRC and the ECtHR are not prepared to force states to swallow the dramatic costs entailed by a true diversity-protecting regime. Although they operate under different doctrinal structures, these two adjudicative bodies reach a similar legal outcome: they consistently allow the state to incentivize assimilation in the public sphere (on fair terms) into the dominant culture and language of the majority. Continue Reading…

Jens Ohlin Posts Response to Ryan Goodman Paper on Capture Over Kill

by Kenneth Anderson

The multi-blog (trans-blog?) debate over whether there is a duty to capture in the law of war now has a reply to Ryan Goodman from Jens Ohlin, in a working paper at SSRN, “The Capture-Kill Debate.”  The on-going discussion began, faithful readers will recall, with Ryan Goodman’s EJIL article on this topic and a general audience version of the thesis for Slate.  After Jack Goldsmith flagged it at Lawfare, it prompted a vigorous debate there between Ryan and what has come to be known in the literature as “CBJJ” – otherwise known as Geoff Corn, Laurie Blank, Christopher Jenks, and Eric Jensen.  (Follow links at this post by Bobby Chesney at Lawfare.) Kevin weighed in at Lawfare with a guest post of his own, and various of our longtime commenters, including John Dehn and Jordan Paust, have added thoughts here at OJ.  Meanwhile, over at Lieber Code blog, Jens had been writing about this general topic for a long time, including talking about his forthcoming article, “The Duty to Capture” (which, as I suggested, perhaps merited a question mark in the title, given the conclusions of the article).  Jens has been hard at work, and has just posted to SSRN a response to Ryan, a short, fifteen page paper responding directly to Ryan’s paper as well as taking up some of the issues raised by CBJJ.  Here is the abstract (graf break added) to Jens’s paper, The Capture-Kill Debate, at SSRN.  Highly recommended (as we Proud Followers of Larry Solum say):

In a recent essay, Ryan Goodman offers a vigorous defense of the duty to capture under the law of war and concludes that attacking soldiers have a duty to use the least-restrictive means of accomplishing their objective. In particular, Goodman contends in his new intervention that the scholarly debate has relied on an impoverished reading of the legislative history of the key international protocols drafted in 1973 and 1974. Having un-earthed a wealth of documents regarding those negotiations, he argues that: (i) the law of war already severely restricts the use of force in various contexts by virtue of specific prohibitions on methods of warfare; (ii) the law of war already prohibits killing enemy combatants who are rendered hors de combat; and (iii) the drafters of the Additional Protocols supported a “least-restrictive-means” interpretation of the concept of necessity, meaning that killing is only lawful when soldiers have no other way of neutralizing the enemy (e.g. capture is not feasible).

For reasons that I articulate in the present commentary, I believe that none of these arguments provide definitive support for a duty to capture under the laws of war. First, with regard to Goodman’s first two arguments, one cannot move from a list of specific jus in bello prohibitions to a generalized principle regarding the nature military necessity that then swallows and expands the specific rules. Second, the arguments ignore the Lieber Code’s definition of military necessity as “all direct destruction of life or limb of armed enemies” and “those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.” Although the law of war has advanced considerably since Lieber, its general structure remains relatively unchanged.


Samantar Asks for Supreme Court Review Again

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 Monday, Mohamed Ali Samantar filed a cert petition asking the Supreme Court to review the Fourth Circuit’s decision that he is not entitled to conduct-based immunity in a suit brought under the Alien Tort Statute and Torture Victim Protection Act alleging torture, arbitrary detention, and extrajudicial killing. 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, the District Court followed the State Department’s determination, and the Court of Appeals affirmed. The Fourth Circuit held: (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. I have previously explained why I believe that decision to be fundamentally correct.

Samantar’s cert petition argues that the Fourth Circuit’s decision conflicts with the decisions of the Second Circuit in Matar v. Dichter, the D.C. Circuit in Belhas v. Ya’alon, and the Seventh Circuit in Ye v. Zemin, each of which refused to recognize a jus cogens exception to the immunity at issue. In Matar, the Second Circuit deferred to the State Department’s determination that the defendant was entitled to conduct-based immunity and refused to override that determination by finding a jus cogens exception. But in Samantar, the State Department has determined that the defendant is not entitled to conduct-based immunity, so the question whether to recognize a jus cogens exception was never presented. Belhas was decided on the assumption—now corrected by the Supreme Court’s 2010 Samantar decision—that the Foreign Sovereign Immunities Act (FSIA) governed the immunity of foreign officials and held that there is no jus cogens exception to the FSIA, a conclusion that prior decisions had reached in suits against states. Ye held that there was no jus cogens exception to head-of-state immunity, an immunity that attaches because of an official’s status as a sitting head of state. In each of these cases, the question was whether to recognize an exception to an immunity that had—for one reason or another—already attached.

The question in Samantar, by contrast, is not whether to recognize a jus cogens exception to an immunity that has already attached, but the antecedent question whether jus cogens violations can be taken in an official capacity so that conduct-based immunity attaches in the first place. As Judge Stephen Williams noted in his concurring opinion in Belhas, the question whether an immunity attaches is “quite distinct” from the question whether to recognize exceptions to an existing immunity. The Fourth Circuit’s decision in Samantar is the first Court of Appeals decision to say whether jus cogens violations can constitute official acts for purposes of conduct-based immunity.

My friend Curt Bradley has suggested that distinguishing these two questions is just semantics. To see why it is not, it may be useful to step back and consider how immunity generally works. All immunity questions proceed in three basic steps: (1) who is covered, (2) what is covered, and (3) is there an exception. I will use state immunity, status-based immunity, and conduct-based immunity as illustrations, but one could ask the same questions with respect to diplomatic and consular immunities. Continue Reading…

Weekday News Wrap: Friday, March 8, 2013

by Jessica Dorsey

Color Me Unimpressed by Holder’s Response to Paul

by Kevin Jon Heller

As everyone likely knows by now, Rand Paul has ended his remarkable talking filibuster because Attorney General Holder officially responded “no” to the question “Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” Is it just me, or does Holder’s answer actually raise more questions than it answers?

(1) “Engaged in combat” seems like a much broader standard than “senior operational leader,” which the recently disclosed White Paper described as a necessary condition of killing an American citizen overseas. Does that mean the President can kill an American citizen inside the US who is a lower-ranking member of al-Qaeda or an associated force?

(2) Why (to second Marcy Wheeler) did Holder delete one word from Paul’s question, changing “not actively engaged in combat” to “not engaged in combat”? Does that indicate that the President can kill an American inside the US whose activities qualify as “engaging in combat” even if they would not qualify as “actively engaging in combat”? What is the difference? What does the US understand by “actively”?

(3) What does “engaged in combat” mean? That is a particularly important question, given that Holder did not restrict killing an American inside the US to senior operational leaders and deleted “actively” from Paul’s question. Does “engaging” require participation in planning or executing a terrorist attack? Does any kind of direct participation in hostilities qualify? Do acts short of direct participation in hostilities — such as financing terrorism or propagandizing — qualify? Is mere membership, however loosely defined by the US, enough?

Come on, Rand. Stand up again and get us some real answers.

HILJ Symposium: Consent to the Use of Force, Jus Cogens, and Manifest Violations of Domestic Law

by Duncan Hollis

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

In my previous response to Ashley Deeks’ article, “Consent to the Use of Force and the Supremacy of International Law,” I examined some of the practical, doctrinal, and systemic implications associated with Deeks’ challenge to international law supremacy. As I noted there, I do think the problem of unreconciled consent requires attention, if not a solution, in the use of force context. I would prefer that solution to come from domestic law. Nonetheless, to the extent international law is asked to fix this problem, I’d like to explore the context in which it would have to do so, and suggest an alternative solution to the problem that avoids giving domestic law supremacy over host State consent.

Deeks suggests her duty to inquire (and the invalidity of any subsequent unreconciled consensual agreements) could arise via state practice or a modification to VCLT Article 46. I think both paths are problematic if State consent takes a treaty form (in contrast, if it’s a political commitment, I think a total or partial override of that commitment in favor of domestic law is much easier). In the treaty context, State practice favoring a duty to inquire runs up against VCLT Article 42(1):

1. The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only through the application of the present Convention.

This isn’t to say customary international law cannot override States’ treaty obligations under the VCLT (or the VCLT’s status as customary international law) but it’s not as simple an analysis as if States were creating a duty to inquire on a clean slate. The VCLT purports to be an “exclusive” list of grounds for invalidating State consent, which cuts against finding new or additional grounds for invalidity even in the use of force context. Continue Reading…

Weekday News Wrap: Thursday, March 7, 2013

by Jessica Dorsey

Topics of Interest at the 22nd Session of the Human Rights Council

by Kristen Boon

The 22nd session of the Human Rights Council opened on February 22, and is now in its second week.  The overall program of work is available here.

A hot topic next week will be the March 11 discussion on Syria, which will draw on this February 2013 report by the International Independent Commission of Inquiry on the Syrian Arab Republic.

In addition, the Council has now discussed the right to adequate housing, enforced disappearances and the rights of the child.   Yesterday, Special Rapporteur on human rights and counter terrorism Ben Emmerson urged US authorities to “publish without delay, and to the fullest extent possible, the Senate Select Committee on Intelligence report into the CIA’s secret detention and interrogation programme” as this article explains.  There is a nifty chart showing countries and issues to be addressed here.  Webcasts are available here.

HILJ Symposium: Getting to the Right Answers about Rights

by Tom Ginsburg

Tom Ginsburg is Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar and Professor of Political Science at the University of Chicago. Zachary Elkins is Associate Professor in the Department of Government at the University of Texas at Austin.

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

In recent years there has been an active debate in the social sciences about the distinct “cultures” of qualitative and quantitative inquiry. Gary Goertz and James Mahoney, A Tale of Two Cultures: Qualitative and Quantitative Inquiry in the Social Sciences (2012). We ourselves have been skeptical of the extent of this purported divide, as our prior collective and individual work has sought to integrate the strengths of the two approaches. Professor Christopher Roberts’ thoughtful comments on our article demonstrate, in our view, the basic complementarity of the methodologies.

Our article demonstrates a set of statistical relationships that are consistent with the interpretation that we give them: that constitutional and international rights are reciprocally produced, and that an important channel of impact for international human rights has been their adoption by national constitution-makers. Roberts draws on the historical literature to both supplement and challenge elements of this story, and to make the important point that it is, as always, a bit more complicated. Continue Reading…

HILJ Symposium: Natalie Lockwood Responds to William Burke-White

by Natalie Lockwood

Natalie Lockwood holds a J.D. from Harvard Law School, 2011; and an A.B. from Princeton University, 2006.

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

First of all, let me begin by thanking Professor Burke-White for his careful reading and thoughtful response. I’m honored that someone whose own work I admire so much has taken the time and effort to engage with my article. I am also grateful to Opinio Juris and the Harvard International Law Journal for organizing this symposium.

My article, “International Vote Buying,” examines a feature of international relations that has not previously received much attention in legal scholarship—namely, the practice whereby states pay one another (with money or other concessions) to influence voting outcomes in international institutions such as the UN. For example:

• In 2003, the United States allegedly pledged millions of dollars to Angola in connection with a UN Security Council vote that would have paved the way for the invasion of Iraq.
• In 2008, Iran allegedly paid $200,000 to the Solomon Islands in exchange for future votes against Israel in the UN General Assembly.
• In December 2009, Russia allegedly offered the island state of Nauru $50 million in exchange for its extending diplomatic recognition to Abkhazia and South Ossetia, the two separatist provinces in Georgia. Continue Reading…

Weekday News Wrap: Wednesday, March 6, 2013

by Jessica Dorsey

HILJ Symposium: Constraining Language Through Culture

by Efrat Arbel

[Efrat Arbel holds an SJD form Harvard Law School and is a postdoctoral fellow at the University of British Columbia Faculty of Law.]

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

Moria Paz’s article, “The Failed Promise of Language Rights: A Critique of the International Language Rights Regime,” is an important contribution to the literature on language rights. Paz advances a timely and insightful critique of judicial and scholarly treatments of language claims. Through a careful analysis of international and regional rights instruments, cases, and scholarly literature, Paz identifies a gap between the promise of language rights protection as articulated in these texts and the meaning these rights acquire in practice. At the heart of her analysis is a critique of the existing legal orthodoxy on language rights, and more specifically, its reliance on the vocabulary of human rights. Paz argues that approaching language claims through the rubric of human rights risks undermining the goals that motivate these claims, namely, effecting the distributional changes necessary to ensure linguistic diversity and protect minority language use. Arguing that the language of human rights is ultimately ill suited to achieve a robust protection of linguistic diversity, she advocates instead for situation specific analysis cognizant of political and material realities and demands. Such an approach, Paz argues, can better advance the structural changes and distributional demands that underpin language claims.

Through a detailed analysis of 133 cases from the European Court of Human Rights (ECtHR), the United Nations Human Rights Committee (UNHRC), and the Inter-American Court of Human Rights (IACHR), Paz finds an unexpected alignment between these disparate bodies. Her analysis reveals an international status quo that fails to live up to the promise of protecting language rights as human rights. As Paz convincingly shows, the ECtHR, UNHRC, and IACHR take a narrowly utilitarian approach to language. The remedies they issue offer only pragmatic management of language claims, rather than meaningful substantive accommodation. All too often, these decisions accommodate minority language to facilitate communication with the majority language group, and offer a thin measure of protection that lasts only until the minority language speaker transitions into the linguistic mainstream. No less significantly, the decisions often oblige minority language speakers to bear the lion’s share of the monetary costs that come with linguistic redistribution. As Paz’s analysis makes clear, this approach does not view minority languages as assets to be celebrated and accommodated, but rather, constructs them as obstacles that minority language speakers must overcome to assimilate to the linguistic majority. To this extent, she argues, this approach fails to extend robust accommodation of linguistic diversity. Continue Reading…

Argentina to U.S. Court: We Won’t Obey Your Order Because We Are a Sovereign. So There!

by Julian Ku

I have been remiss in not pointing interested readers to Anna Gelpern’s terrific posts on the ongoing NML v. Argentina sovereign debt litigation that is going on here in New York.   I want to highlight in particular her incredibly useful and interesting account of the scene last week when the U.S. Court of Appeals for the Second Circuit heard arguments challenging a lower federal court’s order that Argentina has an obligation to pay its holdout creditors at the same time it pays its restructured creditors via a “pari passu” clause in its sovereign debt contracts.  The bottom line: Gelpern seems to predict the US court will order Argentina to pay its holdout creditors, but probably not the full amount they are seeking.  And she doubts Argentina will pay up anyway.

Indeed, from an international law perspective, this last point is the most fascinating part of the argument. The lawyer for Argentina made clear to the court that Argentina would not comply with the court’s order to pay the holdouts. Period. Here is Gelpern’s description:

Big Bonus Feature: Sovereign Prerogative. One of the bigger bombshells of the day came from Argentina in the form of the statement that it would default on everyone unless the Court adopted something like its payment formula. The fact that the statement was made with the Vice President and the Economy Minister sitting in the room made it feel like an even bigger deal. Jonathan Blackman’s contention was that sovereigns do not and cannot — and Argentina will not —  “voluntarily obey” foreign judgments against their own domestic law and public policy. Argentina’s submission to U.S. jurisdiction was made subject to the understanding that under FSIA, some judgments could go unenforced, and them’s the ropes. Since NML was effectively (though not technically) trying to enforce a judgment, it was out of luck. Blackman’s hypothetical of an Iranian court order against the U.S. government seemed like a high-risk move under the circumstances. The threat of default prompted Ted Olson for NML to say that Argentina promised this extreme course “to force this Court to back down … The Court cannot give into that!” ….

It is (to say the least) extraordinary when a party to a dispute makes the argument that it will simply not comply with an order of the court that has jurisdiction over it.  As a matter of litigation strategy, it is simply bad tactics since it usually enrages the judges.

From an international law perspective, it should be clear that Argentina’s action, although defensible, is not in any way justified by international law, although it is not prohibited by international law either.  What strikes me about the statement is that it is really quite “sovereigntist” and based on a realist, hard-nosed approach to international law and contracts.

As I discussed in an earlier post, Argentina has waived almost all of its sovereign immunity defenses when it issued the bonds, and agreed to New York law:

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

So Argentina agreed to give up its immunity defenses under international law and submit to the US courts.

If I understand Argentina, it is now saying to the US court: You try to enforce this order on us, and we walk away. We won’t pay anyone, including the other restructured creditors. Your only remedy is to try to attach our non-commercial assets, which you can’t do under US law. Ironically, if US law permitted such attachments, Argentina’s waiver would plainly subject it to such attachments.

I think this strategy could work for Argentina, although they deserve plenty of additional reputational damage for this move.  They sold bonds in the US, waived their international law defenses, and raised billions of dollars.  Arguably, they also agreed by contract to pay all creditors via its pari passu clause.

Now they are taking advantage of a quirk in US law to escape their obligations.  They are even playing the “sovereignty” card, by pointing to their own domestic law as a basis for their refusal to pay.  And respect for their sovereignty is probably why they get away with this move, as slimy as it seems to do so in this case.  Maybe that’s the right result, but I wouldn’t want to celebrate it in any way.

HILJ Symposium: International Versus Domestic Law: Supremacy, Surrender, or Co-existence?

by Duncan Hollis

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

Ashley Deeks’ Article, “Consent to the Use of Force and International Law Supremacy,” is a deeply provocative and thoughtful work that makes two very important contributions to international legal scholarship. First, she exposes and explores a latent ambiguity in the role consent plays in the use of force context. Second, and more ambitiously, Deeks proposes invalidating consensual agreements to uses of force (and other security, intelligence, and law-enforcement activities) where the acting State did not inquire and ensure that its activities comported with the host State’s own laws. In doing so, she argues that international law no longer needs – or deserves – the supremacy it claims when it conflicts with certain domestic laws. In this post, I want to take up this second, larger, claim about international law supremacy (in a second post, I’ll offer my reactions to her proposal to have international law invalidate consensual agreements that do not comport with the host State’s domestic law).

Let me begin by emphasizing that I’m persuaded by Deeks’ descriptive claim that cases of “unreconciled consent” (where a host State consents to foreign State uses of force, drone deployments, renditions, etc., which the host State couldn’t perform under its own domestic laws) are occurring with increasing regularity. I’m also persuaded that unreconciled consent is a problem, particularly where the “permission” is granted in secret among executive agents who all have an interest in greater flexibility to operate free from any legal constraints. Continue Reading…

The Capture-Kill Debate Underway at Lawfare, and Jens Ohlin’s Observations at Lieber Code

by Kenneth Anderson

A recent Lawfare post by Jack Goldsmith noted the appearance of NYU professor Ryan Goodman’s controversial new EJIL article, “The Power to Kill or Capture Enemy Combatants.” It was followed by an even more provocative summary of it in Slate.  Both pieces have launched a very interesting debate between Goodman, on the one side, and a group of well-known LOAC scholars (Geoff Corn, Laurie Blank, Chris Jenks, and Eric Jensen), on the other.  Our own KJH has now weighed in with a guest post of his own at Lawfare.  (Bobby Chesney, introducing Kevin’s guest post at Lawfare, links the earlier posts.)

There is an important voice taking part only indirectly in the Lawfare discussion, however – Jens Ohlin.  I earlier flagged at Lawfare a new piece by Jens on exactly this question, “The Duty to Capture,” that reaches, as Kevin has noted, a conclusion almost diametrically opposite to Ryan’s. So much so that when I tagged it as a “Readings” at Lawfare, I suggested that the title might benefit from a question mark – The Duty to Capture?  The debate over at Lawfare is usefully read with this article by Jens to hand.

Jens is taking part “indirectly,” so to speak, because he also runs his own terrific blog, Lieber Code, where he has been discussing exactly these questions.  He just posted a new comment on his blog that goes to the heart of the issue:

In the “Duty to Capture” … I argue that the concept of necessity in human rights law and the law of war mean completely different things.  This is relevant because the duty to capture allegedly applies when killing an enemy combatant is no longer truly necessary.  The question is what is meant by necessity in this context?

In human rights law, necessity often means “the least restrictive means.”  In other words, there is no other alternative, or at least not one with less infringement on the individual’s liberties.  So the action is necessary if no other action would achieve the desired results for the government actor in question.

In contrast, necessity in the law of war means something completely different.  At least since the Lieber Code, necessity has been defined as “military necessity,” which “admits of all direct destruction of life or limb of armed enemies,” in the words of the Lieber Code.  This definition is fundamentally incompatible with the least-restrictive means definition of necessity.

Weekday News Wrap: Tuesday, March 5, 2013

by Jessica Dorsey

Revive Letters of Marque and Reprisal to Launch Cyber-Attacks Against China?

by Julian Ku

Dan Blumenthal of AEI has a thoughtful piece in Foreign Policy on different tactics the U.S. could take to “win a cyberwar” with China. I think it is more about how the U.S. should “fight” the cyberwar with China and other governments that are going to use cyber-attacks against US companies and government entities.  Still, what caught my eye are two interesting legal proposals.

1) The US could amend the Foreign Sovereign Immunities Act to permit lawsuits against governments and government entities (like China’s) for cyberattacks and cybertheft.  I suppose the idea would be that a US company could sue the infamous People’s Liberation Army unit that is allegedly sponsoring many of the cyber attacks against the U.S.  I think this is a not very good  strategy since such litigation for state sponsors of terrorism have not gone very well.  And it would seem to require the US to open the doors to litigation against a foreign sovereign, which will certainly invite retaliation against the US government and US companies doing business with China. So I assume no such lawsuits would ever be brought, or almost never would be brought.  Still, worth thinking about.

2) Here is the hot idea:  Issuing letters of marque and reprisal against cyberattackers.  This idea has been developed by GMU lawprof Jeremy Rabkin and Ariel Rabkin here. I think as a policy matter, the idea of bringing private non-governmental resources into play is really important, since they have much of the technical expertise and suffer the most damage from cyberattacks.  On the other hand, officially sanctioning private warfare via “cyber-privateers” seems more trouble than its worth.  You are responsible for the damage they wreak, but you don’t actually control them very well since they are not in your chain of command.  And, oh yes, other countries could do this even better than the U.S. could.  Except they simply deny their relationship with the “private”attackers.

And I also think that international law would have something to say about this.  If a state of armed conflict existed, than it is easier to imagine unleashing a private band of cyberwarriors.  But absent that, I don’t think the cyber-privateers makes much legal or policy sense.  How could the US legitimately sanction private attacks against a foreign government absent a state of armed conflict without having to treat all foreign private attacks against it as “armed attacks” as well?

Still, I like the idea of expanding the universe of U.S. expertise and ability in the cyberwars, taking an offensive rather than a defensive approach, and thinking of new ways to do so. I am just not sure reviving private warfare will necessarily do that.

Libya Admits (Again) It Should Lose Its Admissibility Challenge

by Kevin Jon Heller

Libya has filed yet another brief concerning the admissibility of the case against Saif Gaddafi. The new brief is more than 50 pages long, so it’s going to take some time to digest. But we really don’t have to go beyond pages 22-24, because Libya’s admissions in those paragraphs doom — or at least should doom, if the Pre-Trial Chamber would ever actually rule — its admissibility challenge:

48. The Libyan Government does not deny that Saif Al-Islam Gaddafi remains in Zintan (one of the largest cities in north-western Libya) and that efforts to arrange his transfer to a detention facility in Tripoli are ongoing.[57] During his incarceration in Zintan Saif Al-Islam Gaddafi has been visited by representatives of the International Committee of the Red Cross and Human Rights Watch on several occasions.[58] Permission was granted by the Minister of Justice, Salah Marghani, for a further visit by Human Rights Watch on 4 March 2013.[59] It is now a matter for Human Rights Watch to arrange this visit at their earliest convenience.

49. Since 30 October 2012 each of the extensions of Saif Al-Islam Gaddafi’s periods of detention have been judicially approved by Tripoli based judges[60] who have travelled to Zintan to conduct a private hearing (ie. a closed session) on the extension of his remand period. These hearings have been facilitated by the local authorities in Zintan without any difficulties. The Libyan Government
understands that the reference on the remand extension documents to these hearings bearing held in public is an error as the hearings were held in closed session and were not open to members of the public.

50. The Libyan Government will shortly begin implementation of its recently devised proposal for the members of the Zintan brigade responsible for guarding Saif Al-Islam Gaddafi in Zintan to be trained and regularised so as to form part of the judicial police which would then guard him upon his transfer to a central government controlled prison in Tripoli. It is not possible to say with any certainty the exact date of Mr Gaddafi’s transfer to Tripoli but it is understood that this will occur before the earliest possible estimated commencement date of the trial in May 2013.

51.It is anticipated that if the national security proceedings, which are presently in the pre-trial phase and for which there was a public court hearing[61] in the Zintan court on 17 January 2013, are to proceed to trial that once Saif Al-Islam Gaddafi is transferred to Tripoli these proceedings will also be transferred to the Tripoli court.

The first thing to note is that, even if these claims are true, Libya is still currently “unable” to prosecute Saif within the meaning of Art. 17(3) of the Rome Statute…

HILJ Symposium: A Response to “International Vote Buying”

by William Burke-White

[William W. Burke-White is Deputy Dean and Professor of Law at University of Pennsylvania Law School.]

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

Natalie Lockwood’s article, “International Vote Buying,” recently published in the Harvard International Law Journal, makes an important contribution to a set of understudied questions around the legality and appropriateness of international vote-buying. Lockwood quickly admits that international law itself says little about the legality of such vote buying and, therefore, examines the question through an analogy with the legal rules governing vote buying in a variety of domestic contexts. She recognizes, however, that the analogy, while informative, is imperfect. There are significant differences between nature of domestic polities in which such vote buying is generally subject to legal prohibition and the nature of the international community. Yet, the analogy helps inform our thinking about whether vote buying should be prohibited at the international law.

In this brief response, I seek to do two things. First, I want to question both the effectiveness and appropriateness of a legal prohibition on vote-buying. Second, I want to suggest that more significant contribution of Lockwood’s article goes far beyond vote-buying and helps refocus debate on the changing nature of power and influence in the international system. Continue Reading…

HILJ Symposium: Convergence, Reaction, and Translation: Human Rights in History

by Christopher N.J. Roberts

[Christopher N.J. Roberts is Associate Professor of Law at the University of Minnesota Law School.]

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.


The most important studies stimulate a host of unlikely conversations. In this regard, “Getting to Rights,” a path-breaking article that examines the effect of international rights texts on domestic constitutions and practices does not fall short. Its contribution to the literature on rights convergence is already part of an encounter that unfortunately is all too infrequent in academia: an engaging dialogue between quantitative and qualitative scholars. The import of this study, however, extends far beyond the literature on convergence. It has significant implications for the study of rights in areas ranging from anthropology to sociology and history.

Scholarly contributions aside, the authors also happen to be unwitting interlocutors in a conversation that one famous science-fiction writer initiated over seventy years ago. In the earliest days of WWII—long before the Universal Declaration of Human Rights (UDHR) or the United Nations (UN) were the faintest of ideas—H.G. Wells wrote a letter to editor of the Times offering a potential solution for the rapidly expanding crisis: a “Declaration of Rights.” Relying in part upon his ability to conjure the unimagined, he placed before his readers a high prophecy: such a declaration eventually, “… would furnish a criterion for our subsequent treaties and behaviour.” Although Elkins, Ginsburg, and Simmons never mention Wells in their article (nor is it likely that they considered him at all during the course of their work), they are the first scholars to test empirically the substance of his prediction and identify a mechanism through which it operates.

The authors’ data show that on the heels of a post-war surge in the volume of rights (216), a clear correlation emerged between the rights in the UDHR and those rights in domestic constitutions (221). They argue that the UDHR influenced the content of domestic constitutions in the post-WWII moment through a “powerful ‘template’ influence” (221). Second, they show that post-1966 constitutions from states that have ratified the International Covenant on Civil and Political Rights (ICCPR) are more likely to contain ICCPR rights than those state constitutions from states that have not ratified the ICCPR (228). And finally they argue that treaty ratification is responsible for both a direct influence on domestic respect for human rights as well as an indirect effect that operates through “constitutional incorporation” (204).

In this response, I reexamine a few slivers of the historical record—though now with the authors’ findings in hand. In certain cases the existing qualitative data confirms the authors’ findings and in other cases it calls for further investigation. I raise three points: First, similarities in rights texts may result not from a “template” effect, but from the fact that post-WWII rights texts were “reactions” to a common set of challenges and threats. Second, because nominally similar rights are often subject to different interpretations at the local level, in certain settings it is possible that questions of “translation” might provide greater analytic traction than assumptions of “convergence.” Finally, this response concludes with a brief example of how “human rights in history” is itself a very hazy phenomenon that presents unique challenges for quantitative scholarship.

Was the UDHR a “template” or just a similar “reaction” to shared threats?

In his public missive, H.G. Wells actually drew much more from history than his imagination. He noted how in times of tumult from the Magna Carta onwards rights formation had been a reactive phenomenon. The French Declaration of Rights and the US’s Declaration of Independence and its Constitution are of course prime examples of rights texts that emerged in response to external challenges. Indeed, rights texts—be they constitutions, treaties, charters, or declarations—represent a people’s response to shared problems and common threats. They are collective “solutions” written into law.

Using the history of rights formation as a guide, one would anticipate a surge in rights in the aftermath of a depression and in the chaos of two world wars. The author’s findings are entirely consistent with this expectation. But this expectation should not end at domestic shore. If rights formation is a reactive process, there is no reason to assume that the surge should be limited to domestic constitutions. Indeed, in the midst of common international threats, one should expect to see a surge in international rights texts that respond to the threats in kind. This is a hunch to be sure—but it is a hunch that the history seems to support.

In 1939, as the nations of the world acceded to War, Wells advised his readers that the moment was “peculiarly suitable for such a restatement” of the rights of man. He in fact concluded his letter in the Times with his own proposal for a bill of international human rights. Interestingly, his 1939 decalogue stood in the company of many others. During these years, there was an outpouring of international human rights proposals from a number of prominent individuals and groups. Hersch Lauterpacht of Cambridge, Gustavo Gutierrez of Cuba, Alejandro Alvarez of Chile, Rev. Wilfred Parsons of the Catholic Association for International Peace, and Robert Hutchins, President and then Chancellor of the University of Chicago, each gained considerable attention for their own international human rights declarations. Groups such as the Institut de Droit International, the American Jewish Congress, the American Association for the United Nations, the World Government Association, the editorial board of Free World, and the American Law Institute also drafted human rights declarations—all before the 1948 UDHR came into being. A few of them even predated Wells’ declaration. By 1946, the UN Secretariat had at least 12 different drafts of such international bills of human rights in its possession. The UDHR—which, for instance drew upon the ALI’s text—shared much in common with some of these early human rights documents. Others—for instance, Chancellor Hutchins’ “Declaration of Duties and Rights” which invoked “earth, water, air, [and] energy” as the four fundamental “elements of life”—were rather distinct.

While some variation amongst these human rights documents is inevitable, one actually finds significant similarities as well. This is not surprising. The drafters of the world’s first international human rights texts (including the UDHR) worked under the shadow of the same forces that had spread decades of want and fear across the globe. To the extent that rights texts are reactions to shared problems, one should expect to see similar solutions written into law. This applies every bit as much to domestic constitutions as well. Nations, of course, were thrown headlong into the very same turmoil.

In the present study, it is quite possible that the correlation between the rights within the UDHR and those within subsequent domestic constitutions flows not primarily from the UDHR as a “template,” but from prior, common sources. Indeed, all of these declarations, treaties and constitutions were part of the same rights explosion, which itself, surged into being in very much the same way others had over the centuries: as a reaction to common threats and challenges. This mechanism can perhaps explain the surge in similar rights that preceded the UDHR that the authors note on page 218.
It would be very interesting to see how the other early human rights texts correlate with domestic constitutions. Depending on how they score relative to the UDHR, they might actually help to rule out the competing explanation outlined above. On the other hand, since it cannot be argued, for instance, that Chancellor Hutchins’ declaration served as a template for subsequent domestic constitutions, if the authors ran their analysis and found that it correlated highly with domestic constitutions, such a finding would speak to the likelihood that there are indeed other forces at work beyond the UDHR acting as a template.

Do nominally similar rights possess identical local-level translations?

The clearest qualitative support for the authors’ template proposition would seem reside within the many domestic constitutions that explicitly name the UDHR as a source of rights (including Afghanistan, Cambodia, Argentina, Andorra, Romania, Portugal, Benin, Cameroon, Burundi, Somalia, Tanzania, Burkina Faso, Congo, Djibouti, Niger, Angola, Ethiopia, and Mozambique). It is interesting, however, to note that African states predominate this list. Moreover, a large portion of the African states that explicitly mention the UDHR in their constitutions also invoke the African Charter—a regional human rights text, that itself explicitly “draw[s] inspiration” from the UDHR. These facts instantly raise a series of questions about the precise nature of the causal mechanism(s) underlying the authors’ arguments about human rights convergence. What role, for example do cultural, ethnic, regional, linguistic, or ideological factors play? In subsequent studies it would be interesting to see exactly how specific regional rights texts figure into the causal stories surrounding both the UDHR and the ICCPR.

A broader issue looms. If it is true that convergence (at least some of the time) is more of a multi-phase process in which rights filter through a series of international and regional rights texts, institutional apparatuses, disparate cultural motifs, and unique historical struggles on their way to local level incorporation and implementation, what appears as an identical right in name could manifest within an entirely distinct interpretive guise at the local level. During the drafting of the Covenant in the early 1950s, for example, the United States, the USSR and, smaller, non-western states each bestowed entirely distinct interpretations upon socioeconomic rights. Decades later, even the more widely accepted category of civil and political rights within the ICCPR is not free from differing interpretations. The incredible number of Reservations, Understandings, and Declarations that states use to clarify their own positions provides a window into the disparate meanings and translations that states bestow upon nominally identical rights.

Depending upon the strength of the intervening variables and the nature of the process that may recondition the meanings of rights along their journey towards domestic law, relying upon a strict analytic notion of “convergence” may obfuscate the many practical and conceptual divergences that exist beneath nominal similarities in international and local level rights texts. In certain cases “convergence” as a motivating framework may cede explanatory power to questions of “translation” (see Goodale & Merry). Notwithstanding these conceptual issues, the authors’ use of Freedom House data enables them to focus on the actual practices on the ground and to bypass such issues of translation.

Human Rights in History

In Part IV of the paper, the authors argue that a state’s ratification of the ICCPR has an independent effect upon whether those rights within the treaty will eventually become part of that state’s domestic constitution (221). A key part of their analysis relies on an analysis of the similarity of pre-1966 and post-1966 constitutions and the ICCPR. The key year of 1966 represents the date the ICCPR was adopted and opened for signature, ratification and accession by the General Assembly. The difficulty with using this year for their pre/post analysis is that by 1966 virtually all of the rights within the text already had been drafted and publicly available for over a decade. A comparison of the 1954 draft text and the final 1966 text shows the two versions are remarkably similar, with only a few significant rights additions or deletions (the 1954 draft version is available at page 65 of UN Doc E/CN.4/705). It is likely that many states that were going to ratify the ICCPR or adopt similar provisions in their own constitutions had knowledge of what was in the text long before 1966. As is so often the case, the fuzziness of history challenges the exactitudes of quantitative methods. Nevertheless, the choice to use 1966 as the relevant year might actually bias downwards the authors’ findings and suggest an even stronger relationship than exhibited.

“Getting to Rights” will no doubt continue to engage human rights scholars from diverse methodological orientations in lively conversations and debate well into the future. This valuable contribution enables the production of new knowledge and simultaneously demands a rethinking of our existing understandings. In scholarship and in practice, getting to rights is inevitably an ongoing process. As world events transpire and unanticipated threats emerge, new treaties and constitutions will come into being and novel configurations of rights will emerge. Thanks to the unparalleled source of data within the CCP, this important line of inquiry will be able to keep pace.

HILJ Symposium: Volume 54(1)

by Harvard International Law Journal

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts in this series can be found in the related posts below.

This symposium features a series of four responses to articles published in the Harvard International Law Journal’s volume 54(1). Over the next few days we will be presenting the responses, as well as commentary from the authors of the original journal pieces.

Christopher N.J. Roberts, of the University of Minnesota Law School, will be responding to “Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice” by Tom Ginsburg, Zachary Elkins, and Beth Simmons.

William Burke-White, from the University of Pennsylvania Law School, will be responding to Natalie Lockwood’s article, “International Vote Buying.”

Duncan Hollis, of Temple University School of Law and Opinio Juris, will be responding to “Consent to the Use of Force and International Law Supremacy” by Ashley Deeks.

Finally, Efrat Arbel of Harvard Law School will be responding to “The Failed Promise of Language Rights” by Moria Paz.

The responses and author commentary will be added throughout the week, so make sure to check in often to see the latest posts.

Weekday News Wrap: Monday, March 4, 2013

by Jessica Dorsey

Events and Announcements: March 3, 2013

by Jessica Dorsey


Calls for Papers

  • PolSci, the Romanian journal of political science, is accepting submissions for publication in its summer 2013 issue on the topic Democracy and the Rule of Law. The deadline for application is April 1, 2013, at midnight, Central European Time.


Last week’s post can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

How Israel Can (Lawfully) Avoid an ICC Investigation into the West Bank Settlements

by Sigall Horovitz

[Sigall Horovitz is a PhD candidate, teaching fellow and Transitional Justice Project Manager at the Hebrew University of Jerusalem, and a member of ALMA – the Association for the Promotion of IHL. A longer version of this op-ed appears on the website of the Israeli Democracy Institute (in Hebrew).]

The Palestinians have threatened to complain to the International Criminal Court (ICC) about Israel’s settlement activities in the occupied Palestinian territories. Indeed, the transfer of population by an occupying power to occupied territory is a war crime under the Rome Statute of the ICC. Accordingly, assuming that the ICC determines activities in the territory of the Palestinian Authority to be within its jurisdiction, a Palestinian request may entail an ICC investigation into Israeli settlement activities (whether or not Israel accepts the ICC’s jurisdiction). The ICC could also investigate other violations committed on Palestinian territory (by Israelis or Palestinian), such as indiscriminate attacks or unlawful arrests. But the ICC could be precluded from investigating most allegations against Israelis under the principle of complementarity, as Israel would likely investigate these allegations herself. Settlement activities, by contrast, would probably not be investigated domestically as Israel does not consider them to violate any law (and, in fact, they are state policy). However, there might be another way for Israel to prevent an ICC investigation into the settlements, which, ironically, would require her to join the Rome Statute: submitting a declaration under Article 124 of the Statute.

A Small (But Important!) Win for the OPCD

by Kevin Jon Heller

The win in question concerns the privileged documents the Libyan government seized from Melinda Taylor and her OPCD colleagues while they were meeting with Saif Gaddafi in Libya. In late January, the OPCD asked the Pre-Trial Chamber to order Libya to return the documents and destroy any copies it had made of them. Here is what it argued, as summarized by the Pre-Trial Chamber:

16. With regard to the privileged documents seized by the Libyan authorities, the Defence submits that it never waived their privileged nature, that their seizing has never been legally or factually justified by the Libyan authorities, that they remain property of the Defence and that they are “integral to the ability of the Defence to both represent Mr. Gaddafi in the admissibility proceedings, and to respond to any false allegations which have been made by the Libyan authorities in relation to the conduct of Counsel and the defendant.” It is submitted that the Pre-Trial Chamber “retains the exclusive competence for determining whether the privileged nature of the documents should be lifted” .

17. According to the OPCD, the Chamber has the power to order that they “be immediately retumed to the Defence, and all copies should be destroyed”25 since this “falls squarely within the Chamber’s powers under Article 57(3)(b) and (c) of the Statute” and “[t]he duty to return such documentation also inheres in Libya’s obligation to respect the functional immunity of the Defence as required by Article 48 of the Statute” .

Libya, not surprisingly, opposed the request.  Again as summarized by the Pre-Trial Chamber:

21. With regard to the OPCD request to retum and destroy all copies of certain privileged documents, Libya argues that, since the privileged nature of this material has not been waived, the diplomatic channel is the only appropriate one to make such a request. In this regard, Libya submits that an order by the Court would be inappropriate, given that there are still matters of Libyan criminal law and procedure in relation to these materials to be determined by Libyan national courts.

On Friday, the Pre-Trial Chamber categorically rejected Libya’s argument and granted the OPCD’s request for the return of the privileged documents and destruction of any copies:

25. In relation to the material seized from the Defence by the Libyan authorities, the Chamber notes article 48(4) of the Statute that provides that Counsel “shall be accorded such treatment as is necessary for the proper functioning of the Court”. The Chamber considers that the inviolability of documents and materials related to the exercise of the functions of the Defence constitutes an integral part of the treatment that shall be accorded to the Defence pursuant to article 48(4) of the Statute and in light of article 67(1) of the Statute. This holds true in particular considering that the materials at issue were seized from the Defence in the occasion of a privileged visit specifically authorized by the Chamber and agreed by Libya, in the context of the admissibility proceedings initiated before this Chamber.

27. For these reasons, the Chamber is of the view that, in the absence of a waiver of privileges and immunities by the appropriate organ of the Court, the principle of inviolability of the Defence documents stands fully. Accordingly, Libya must return to Counsel the originals of the materials belonging to the Defence and seized in Zintan as well as destroy any copies thereof.

This may seem like a minor victory for the OPCD. The ICC obviously cannot allow states to undermine the attorney-client privilege by seizing confidential documents prepared by defence counsel. But I actually think the victory is critically important, because it is extremely unlikely that Libya will comply with the order. Without the seized documents, the Zintan prosecution of Gaddafi, Taylor, and her colleagues will collapse completely. Moreover, it is not clear whether Libya even has the power to return the documents (much less ensure the destruction of any copies); they may well be in the possession of the Zintan militia holding Saif.

And therein lies Libya’s quandry. If it wants the Zintan prosecution to proceed, it cannot return the documents and destroy any copies. But if it does not return the documents and destroy any copies, it will very publicly violate an explicit order of the Pre-Trial Chamber. That will make Libya look terrible — and will make it look terrible just as the Pre-Trial Chamber is getting set to rule on its admissibility challenge. That’s a no-no.

My guess? Libya will try to avoid complying with the order by filing various motions challenging the Pre-Trial Chamber’s decision. It will, in other words, try to stall until the Pre-Trial Chamber rules on its admissibility challenge.

Here’s hoping the Pre-Trial Chamber doesn’t let Libya get away with it.

Weekend Roundup: February 23 – March 1, 2013

by An Hertogen

This week on Opinio Juris, it was too early for Talk Like a Pirate Day, but we certainly talked a lot about pirates. The reason of course was the Ninth Circuit’s decision to agree with Japanese whalers that the Sea Shepherd’s activities amount to piracy. Julian wasn’t fully confident that “private ends” are broader than financial enrichment, and Kevin strongly disagreed with Judge Kozinski’s argument that a “rich history” supports the conclusion that all acts not taking on behalf of a state are for private ends. In two later posts, Kevin responded to comments disagreeing with his claim that politically-motivated acts are traditionally excluded from the definition of piracy, and added his final word (for now). Kevin also described another problem with qualifying the Sea Shepherd’s actions as piracy: that some states -not including the US- do not consider the area where the events are taking place as part of the high seas, but rather as under Australia’s sovereignty.

Kevin also revisited Libya’s admissibility challenge in the Saif Gaddafi case. Considering Libya’s decision to let the trial in Zintan go ahead before the trial in Tripoli on the same charges as the ICC case, he argued that Libya is unable to obtain custody over Saif, and followed up with a post asking whether Libya is even willing to prosecute Saif.

Following a call by Chinese lawyers for the Chinese government to ratify the ICCPR, Julian asked whether international human rights treaties are a suitable vehicle for domestic legal reform. His post was censored from his China Weibo account, on which you can read more here. Roger addressed Julian’s question with a post on a recent empirical article concluding that there is no clear evidence that the leading international human rights instruments have influenced domestic constitution writing, although he argued that the evidence shows that the agreements may have had an impact during their drafting process.

Jennifer Trahan provided a guest post on recent speeches by former State Legal Advisor Harold Koh on the Obama administration’s policy towards the Rome Statute and the ICC.

Ken advertised his C-SPAN Book TV interview, which will air again today, and can also be watched online here. Also competing for your attention this Saturday is the Annual Conference of the Duke Law, Ethics, and National Security Center, which is live-streamed on the web. If more reading is what you’re after, Roger posted a link to his new article applying the Broken Windows Theory to international corruption, and Duncan recommended a series of draft papers on the ILC’s recent Guide to Reservations that are made available on EJIL:Talk! in preparation of a special EJIL issue on the topic. He also looked forward to the return of IntLawGrrls to the blogosphere this coming International Women’s Day. If a picture is worth a thousand words, this cartoon on Drone Heroes, posted by Kevin, says a lot more than that.

Finally, as always, we posted our weekly events and announcements and the weekday news wrap.

Have a nice weekend!


Sea Shepherd, Piracy, and the “High Seas”

by Kevin Jon Heller

My previous posts (see here for the most recent) have explained why Judge Kozinski’s opinion in the Sea Shepherd case wrongly considers a political end to be a private end. In this post I want to highlight what is ironic — though not technically incorrect — about Judge Kozinski’s conclusion that Sea Shepherd committed an act of piracy on “the high seas.” That is an essential element of piracy; UNCLOS art. 101, for example, defines piracy as “any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed… on the high seas, against another ship.” The high seas, in turn, are defined by art. 86 as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an  archipelagic State.”

The Japanese whaling that Sea Shepherd resisted took place near Antarctica in the Australian Whale Sanctuary (AWS), which was established by John Howard’s conservative Australian government in 1999. Here is a map of the AWS:


Did Sea Shepherd’s acts take place on the “high seas”? Not according to Australia and a number of other states. Australia has long claimed sovereignty over what it calls the Australian Antarctic Territory (AAT), the white part of Antarctica on the map, and it has also consistently claimed sovereignty over the waters adjacent to the AAT, the blue section of the map that stretches around the AAT. Those waters, which are part of Australia’s Exclusive Economic Zone (EEZ), include the AWS. A good history of Australia’s claim can be found in this law-review article by David Leary; here is the Australian government’s own statement about the AWS…

Discussing International Law in China’s Social Media

by Julian Ku

As part of my new research interest in China and its relationship with the international legal system, I opened a Sina Weibo account a couple of weeks ago. And it has been quite an adventure.

Weibo is China’s version of Twitter and Facebook.  Since both Twitter and Facebook are blocked within China, Weibo is the main social media platform for users within China.  And use it they do.  Although the data is somewhat unreliable, it is estimated Weibo has nearly 500 million registered users (that’s not a typo).  As a point of comparison, Twitter has about 175 million registered users worldwide and Facebook has about 1 billion.  There are some questions about whether many of the registered Weibo users are spam bots, but there is no question that Weibo has an enormous usage within China.

What fascinates me about Weibo is that it seems to facilitate more interaction and discussion of public affairs within China than most Chinese media organs do.  Perhaps realizing this, the United Nations has opened an extremely active Weibo account.  The UN Weibo has a mere…3.5 million followers (UN Twitter has “only” 1.3 million followers).  Even accounting for zombie bots, that’s a lot of followers in just one country.

And even better than the number of followers it the discussion the UN has used Weibo to facilitate  discussions of interesting and even sensitive international subjects.  For instance, today, the UN account posted a link to an address by Chinese representative Liu Zhenmin  to the UN Human Rights Council.  In that address, the Chinese delegate appeared to give China’s standard party-line against countries using “human rights” as an excuse to interfere in nation’s domestic affairs and to advance political agendas.  That posting drew hundreds of often tart comments from Chinese Weibo users. Many were critical of their own delegate:   “He does not speak for me,” said one commenter simply.  “What about [Liu Xiaobo] sentenced to prison for 12 years?” said another.  Or another simply quoted the line : “We know they are lying, and they know we know they are lying, and we know they know we know they are lying…”  So kudos to the UN folks running their Weibo account.  And could some of them shift over to running their Twitter account?

Of course, not all is rosy for intellectual and expressive freedom in China’s social media.  When, for instance, I tried to post a link to my Opinio Juris post earlier this week about calls within China to ratify the International Covenant on Civil and Political Rights, I received a message from Weibo explaining that my post had been deleted.  As I later learned, many (but not all) posts about China ratifying the ICCPR had been deleted at the behest of the ever-present Chinese censors.  Which is ironic because my post actually was skeptical about the value of ratifying the ICCPR.

If it weren’t for those pesky censors (and my still sketchy Chinese writing skills), I actually would prefer Weibo to Twitter or Facebook.  It’s easier to use, and has more amusing emoticons 😀 (Although I do wonder why Weibo asks me to list my blood type when registering). China seems to have the best of both worlds: a first class social media platform, and the power to control its usage when it seems to touch on sensitive subjects.  I wonder if this is sustainable, but it sure looks pretty strong so far.

Duke Law, Ethics, and National Security Center Conference

by Kenneth Anderson

If you’re interested, the Duke Law, Ethics, and National Security Center is holding its annual conference – it’s being livestreamed over the web, if you go to the webpage and click the link.  The Chief Prosecutor, the Military Commissions, is giving the lunch talk at this moment. I’ll be on a panel later today on autonomous weapons, Bill Banks moderating, with Dr. Wolff Heintschel von Heinegg (the current USNWC Stockton chair at the Naval War College), and Tom Malinowski from Human Rights Watch.  And many other things – see the program, and congratulations to Charlie Dunlap, who as the Center’s executive director has brought this together.

Are Human Rights Treaties the Inspiration for National Constitutions?

by Roger Alford

“It is widely thought that the rapid growth of the international human rights regime has profoundly influenced the practice of written constitutionalism at the national level,” writes David Law and Mila Versteeg in their brilliant article recently published in the NYU Law Review.

But is there empirical support for such an assumption? Much to my surprise, their answer is a resounding no. After an exhaustive empirical analysis comparing national constitutions with international and regional human rights treaties, they conclude that “our analysis uncovers no clear evidence that transnational human rights instruments are shaping global or even regional trends in constitution writing.” With regard to the canonical international human rights instruments (UDHR, ICCPR, ICESCR), they find that:

The results of the regressions offer little or no support for … for the notion that any of the three leading international human rights instruments have been widely emulated by constitution makers. Instead, they suggest only that different types of countries tend to exhibit constitutional similarity to different treaties.

Here’s their longitudinal analysis of the relationship between those instruments and national constitutions.

Treaties Constitutions

From this they make a curious argument about the ICCPR:

From the position of the vertical line [at year 1966], it is clear that the growing similarity of the average constitution to the ICCPR predates the introduction of the ICCPR: The average constitution had already started to resemble the ICCPR before the ICCPR came into existence. Obviously, the ICCPR could not have been shaping global constitutionalism before it even existed. A more logical interpretation of this chronology is, instead, that the ICCPR merely happened to reflect or express global constitutional trends that were already underway.

They make a similar argument with respect to the ICESCR:

Whether a country has actually ratified the ICESCR … is not a meaningful predictor of whether its constitution resembles the ICESCR…. [T]here was no statistically significant increase in constitutional similarity to the ICESCR following its adoption in 1966, which casts doubt upon the notion that it has served as a model for constitution writers.

Based on my knowledge of the drafting history of both of these treaties, I’m not convinced by their conclusions. Can one say with confidence that the ICCPR and the ICESCR obviously did not shape global constitutionalism prior to 1966? It is well known that both treaties had incredibly long drafting histories, with U.N. General Assembly directing the drafting of the treaties in 1952 and the drafting committee completing its work in 1954. Cold War politics delayed the ultimate adoption of the ICCPR and the ICESCR treaties until 1966, but that doesn’t mean that the draft texts were not influencing global constitutionalism prior to that date.

As newly-independent nations were looking for inspiration in the drafting of their new constitutions, it is quite plausible that countries within the Western European sphere of influence would be inspired by the negative rights expressed in the draft ICCPR, just as countries within the Soviet orbit would be inspired by the economic and social rights expressed in the draft ICESCR. The politics of the day may have delayed the adoption of these treaties, but their influence could easily have predated their adoption. So the sharp uptick prior to 1966 in the correlation for both the ICCPR and the ICESCR makes perfect sense to me. It is likely the result of newly-independent nations from both camps drawing inspiration from the ICCPR and ICESCR draft human rights treaties.

Of course, this point is one small aspect of a monumentally useful article. I highly recommend it to you. It offers a fascinating analysis of the sources of inspiration for global constitutionalism.

Welcome Back IntLawGrrls!

by Duncan Hollis

Back in December, Peggy noted with sadness the shuttering of IntLawGrrls and the wonderful insights and coverage it had brought to the field of international law during its five-plus year run. Happily, it seems reports of IntLawGrrls’ death were a bit exaggerated.  Beginning this Sunday, IntLawGrrls will return to full activity, albeit with a new editorial structure (including my friend and colleague Jaya Ramji-Nogales) and a new site —  The “official launch” is appropriately scheduled for next Friday, March 8 (International Women’s Day).   Check it out and be sure to welcome them back to the blogosphere!


Weekday News Wrap: Friday, March 1, 2013

by Jessica Dorsey

Why Political Ends are Public Ends, Not Private Ends

by Kevin Jon Heller

Eugene Kontorovich has responded at Volokh Conspiracy to my previous post about politically-motivated acts of violence on the high seas. I invite interested readers to examine for themselves the various documents Eugene and I discuss; in this final post I simply want to correct a fundamental error on Eugene’s part concerning the Harvard Draft Convention on Piracy — an error that goes to the very heart of our debate. Both of our arguments depend on the Draft Convention and its commentary, because — as Eugene points out — the ILC Commentary to the Law of the Sea Treaty specifically notes that the Commission “in general” agreed with the Draft Convention. The proper interpretation of the Draft Convention, therefore, is of critical importance to the proper interpretation of the Law of the Sea Treaty.

Here is what Eugene says about whether “private ends” include acts of violence on the high seas that are politically motivated:

The Harvard Draft supports the lack of any subjective, motive-based inquiry. Here is exactly what it says in its commentary on the “private ends” part of the definition of piracy:

[A]lthough it is true that the typical pirate of fiction and tradition was an indiscriminative plunderer, expediency and not traditional epithets or the fancy of traditional concepts should direct the definition of the common jurisdiction over piracy, and every consideration of certainty in prosecution and of assured protection in places outside the territory of all states argues that the jurisdiction to seize and to punish a robber or a killer for private ends should not depend on whether the offender had by acts or words displayed an intent to plunder or slay only once or oftener, or on whether he intended to attack only the citizens of certain states and their ships and other property, or to prey on the people and commerce of all nations indiscriminately. Such matters of collateral intent of an offender (often uncertain and indistinct) and of his transactions other than those involved in the case at hand, are very unsatisfactory as elements in a basis of state jurisdiction.

On the other hand, the language in the Draft that Prof. Heller says best supports his position does not come from the commentary on “private ends,” or indeed from the definition of piracy at all (contained in Art. 3). Rather, it comes from the commentary on Art. 14, which is not defining, or even discussing piracy at all, but rather the authority of states with traditional jurisdiction to apply non-piracy law.

Eugene’s claim about Articles 3 and 16 (his reference to Article 14 must be a typo) is extremely misleading. It is true that the language on which I rely does not come from Article 3, which defines piracy under international law — the kind of piracy to which universal jurisdiction applies under Article 2 of the Draft Convention, and the kind of piracy that is governed by the substantive provisions in Articles 3-15 of the Draft Convention. But I quote the commentary to Article 16 instead of to Article 3 for a very specific reason: because Article 16 deals with acts that do not qualify as acts of piracy under international law and are thus excluded from universal jurisdiction and the substantive provisions of the Draft Convention.  Here is the text of Article 16 (emphasis mine)…