Archive for
May, 2013

Breaking: ICC Rejects Libya’s Admissibility Challenge

by Kevin Jon Heller

The Pre-Trial Chamber has held that Libya cannot try Saif and must surrender him immediately to the Court — which, of course, it will not do. Analysis when I have time to read the lengthy judgment, which can be found here.

Law of the Sea Symposium: Ilias Plakokefalos Comments on Anastasia Telesetsky’s post

by Ilias Plakokefalos

[Dr Ilias Plakokefalos is a post-doctoral researcher at the SHARES Project at the Amsterdam Center of International Law, University of Amsterdam]

Cross-posted at SHARES Blog.

Telesetsky’s highly interesting post highlights the problem of flag state responsibility in the law of the sea. The post identifies two major issues: Illegal Unreported and Unregulated (IUU) fishing and structurally unsafe vessels. Both these issues have been hard to resolve and difficult to regulate, at least from a flag state perspective. This comment seeks to further the debate by raising two questions regarding the role of the flag state in terms of its international responsibility.

First, if we assume that articles 91 and 94 of the Law of the Sea Convention (LOSC) do in fact impose an obligation on flag states to control registration of their ships, the obligation is still rather vague. Article 94 provides that states ‘shall take measures’ to ensure safety at sea, and that these measures shall conform to ‘ international regulations, procedures and practices’. But which regulations are to be followed and which procedures must be adopted is not evident from the LOSC. Even if regulations and procedures are indeed identified (through the International Maritime Organization for example) then the problem of identifying the flag state’s conduct appears. What is the precise conduct that may lead to responsibility? Telesetsky argues that the flag state must exercise due diligence in its authorization procedure. The contents of due diligence obligations are notoriously hard to define in international law. Some guidance might be found in technical standards adopted by international organizations but the problem persists, especially if the role of the classification societies is taken into account (i.e. another non-state actor-besides the shipowner- involved in the process of ensuring the safety of the vessel).

Second, Telesetsky asks in her conclusion (in reference to the Erika and the Prestige incidents) why flag states should not bear responsibility for damage caused by the vessels. She concludes that flag state responsibility could indeed offer a solution to issues of pollution or IUU. It is a fair question and a reasonable conclusion. The fact is that states have opted to resolve claims for oil pollution damage at the national level, through the Civil Liability and Fund Conventions. They have also concluded similar conventions on other areas, covering for example the problem of hazardous and noxious substances (HNS Convention). But is this approach enough? I would answer in the negative. While the oil pollution system works rather efficiently, although not without problems, it seems that states have managed to deflect the discussion from their own responsibility on most other issues. If states had sought to tackle the problem of pollution or IUU directly, they would have to accept a number of obligations, and they seem unwilling to do so.

In any case, I concur that clarification of the obligations of flag states and consequently their more ready exposure to responsibility claims is a step in the right direction.

Law of the Sea Symposium: State Responsibility and Flag State Duties

by Anastasia Telesetsky

[Anastasia Telesetsky is an Associate Professor of Law at the University of Idaho College of Law]

Cross-Posted at SHARES Blog.

Sovereign nations have the right to extend their nationality to non-state actors who agree to adhere to national laws. But is there any broader international state responsibility associated with the granting of flag state status to known problematic non-state actors? Take the example of the South Korean flagged F/V Premier. This vessel licensed to the Dongwon company, the parent company of Starkist Tuna, was recently accused by Liberia of illegal fishing in the coastal waters of Liberia. In April, the Dongwon company settled with the government of Liberia for somewhere between one million and two million dollars.  An interesting question has arisen over whether the government of Korea now has the obligation to list the F/V Premier as an Illegal, Unreported and Unregulated fishing vessel which would mean that the vessel would not be permitted to operate in regional fishery management areas such as those regulated by the Indian Ocean Tuna Commission.  Within the IOTC waters, contracting parties and cooperating non-contracting parties are expected to demonstrate that vessels permitted to fish “have no history of IUU fishing activities or that, if those vessels have such history, the new owners have provided sufficient evidence demonstrating that the previous owners and operators have no legal, beneficial or financial interest in, or control over those vessels…”

Granting the use of the flag and vessel registration are not part of an unconditional sovereign right. While Article 91 permits every State to  “fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag”,  this right is conditioned by Article 94 which provides that “[e]very State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.” When read together, Article 91 and Article 94 suggest that among the necessary conditions for granting nationality or issuing registration is a State’s demonstration of effective jurisdiction and control over “technical matters” which would include vessel safety and “social matters” which in addition to labor practices might also  include enforcing sustainable fishing practices. Healthy fisheries should be considered today a “social matter” since so many people globally depend on marine fisheries for basic animal protein and employment.  A State is, of course, not required to fix structurally unsound ships or to staff fishing vessels with reliable fishing crews who understand conservation practices—but it is required to exercise control over those who might own unsound ships or practice unsound fishing practices. One easy way to exercise effective control over “problem ships” is simply to refuse to grant such vessels nationality or to allow registration of these ships.

This post argues that States granting their nationality to or providing ship registration for any vessels that are 1) known or suspected IUU fishing vessels or 2) structurally unsafe cargo vessels violate erga omnes customary international legal duties as well as discrete treaty obligations.  Continue Reading…

Weekday News Wrap: Thursday, May 30, 2013

by Jessica Dorsey

Law of the Sea Symposium: Ilias Plakokefalos Comments on Yoshinobu Takei’s post

by Ilias Plakokefalos

[Dr Ilias Plakokefalos is a post-doctoral researcher at the SHARES Project at the Amsterdam Center of International Law, University of Amsterdam]

Cross-posted at SHARES Blog.

Takei asks whether there is a role for responsibility in international fisheries management, and he proceeds to reply-correctly so- in the affirmative. The blog eloquently presents all possible scenarios, in terms of the law of fisheries, wherein issues of state responsibility might arise. Therefore the purpose of this comment will be to highlight some questions from the viewpoint of the law of responsibility. Two intertwined points merit closer scrutiny. The first relates to the primary rules and the second to the application of the rules on responsibility.

First, it is clear that the law of responsibility does not operate in a vacuum. In other words its application hinges upon the primary obligations. In the area of fisheries management these obligations are not very well laid out. This can be readily inferred from Takei’s post but also from a cursory reading of the Law of the Sea Convention (LOSC). While, for example, flag states seem to have a clear obligation to take measures to control their fishing vessels in the high seas (arts. 62(4), 87(1), 117) the obligation to do the same in the Exclusive Economic Zones (EEZ) of third states is not as clear. It has to be inferred from a combined reading of articles 56 (1) (a), 56 (1) (b) (iii), 61, 62, 73 that impose conservation obligations on the coastal states and article 58 that posits that third states shall have due regard of the rights and duties of the coastal state. Then the question becomes what is the nature of this obligation. Surely, it is not an obligation of result. The language employed (take appropriate measures, have due regard etc.) point towards an obligation of due diligence. The last step would be to define what amounts to diligent behavior in this case. The scenario where a coastal state invokes the responsibility of a flag state (e.g.for violations either of its laws in the EEZ) may materialize. This is the point where the recent request for an advisory opinion by the Sub-regional Fisheries Commission (SRFC) from the ITLOS might offer useful insights.

This scenario brings us to the issue of the obligations of the coastal states in their EEZ. Continue Reading…

Law of the Sea Symposium: Tim Stephens Comments on Yoshinobu Takei’s post

by Tim Stephens

[Dr Tim Stephens is Associate Professor and Co-Director of the Sydney Centre for International Law, Faculty of Law, University of Sydney.]

Cross-posted at SHARES Blog.

Yoshinobu Takei’s interesting post charts recent developments in international fisheries law that have attempted to respond to the ongoing ‘tragedy of the commons’ that flows from the dominance of the Grotian vision of the high seas as a domain of freedom (to fish, and to enjoy the other accepted high seas freedoms). Concerted attention from the 1970s onwards has resulted in an extensive body of international fisheries law, built upon the foundations provided by the UN Convention on the Law of the Sea (UNCLOS). UNCLOS sought to deal with the tragedy of the commons primarily by arrogating to coastal states large swathes of ocean space within the EEZ. That left the problem of shared, straddling, migratory, and high seas fisheries.

None of these have received the same regulatory attention until relatively recently, and since the UN Fish Stocks Agreement was adopted in 1995 there has been many initiatives to strengthen the hand of responsible states in combating unsustainable and irresponsible fishing practices, particularly on the high seas. The main arena of activity (with some notable exceptions, such as the Southern Bluefin Tuna Case) has not been the in the context of state responsibility, but has instead been in the establishment and strengthening of fisheries regimes. These have been sites of considerable international legal innovation, as seen in the adoption of various ‘hard’ (e.g. enhanced port state jurisdiction) and ‘soft’ (e.g. naming and shaming flag of convenience states lending registration to IUU vessels) measures to combat IUU fishing.

The recently requested ITLOS Advisory Opinion may signal a renewed turn to international judicial fora in an effort to enforce international fisheries law. This is a welcome development, given the continued decline in abundance of most major fish-stocks.

Law of the Sea Symposium: Is there a major role for the law of responsibility in international fisheries management?

by Yoshinobu Takei

[Dr Yoshinobu Takei is a Research Associate at the Walther Schücking Institute for International Law, University of Kiel]

Cross-posted at SHARES Blog.

First of all, I wish to thank Opinio Juris and SHARES for inviting me to participate in this highly interesting symposium. In my post, I will analyze the relevance of the law of responsibility in a fisheries context, describe some of the recent developments in this field and highlight some points for discussion.

On 9 May 2013, a Taiwanese fishing boat was shot by a Philippine government vessel and the incident resulted in the death of a crew member onboard the fishing boat as well as serious damage to the boat. The Taiwanese government demanded the Philippine government “to respond to four demands: a formal apology; compensation; an expeditious investigation followed by the severe punishment of the perpetrators, and the speedy arrangement of negotiations on fishery matters” (Taiwanese Ministry of Foreign Affairs), although the Philippine government claimed that their law enforcement was obstructed by the attempted attack by the boat in question and they were therefore forced to open fire. This sad incident again testifies that state responsibility plays an important role in a fisheries context.

After several decades of uncertainty over the jurisdictional framework for marine capture fisheries, during which states focused on multilateral treaty negotiations rather than invoking state responsibility with a few notable exceptions such as the Fisheries Jurisdiction cases brought against Iceland before the International Court of Justice (ICJ), the issue of state responsibility has gained momentum in contemporary discussions on international fisheries management. Continue Reading…

Guest Post: Recapping the CWC Review Conference-Spotlighting Three Challenging Questions

by Onur Güven

[Onur Güven is a researcher at the T.M.C. Asser Institute in The Hague in the areas of arms control, disarmament and non-proliferation law.]

The Third Review Conference of States Parties to the Chemical Weapons Convention, taking place recently in The Hague from April 8-19, was a benchmark occasion to review the operation of the Chemical Weapons Convention (CWC) and evaluate related scientific and technological developments. Not only States Parties, but a broad range of stakeholders such as academia, the chemical industry and other members of civil society took part in the Conference and shared their views and ideas on issues concerning the disarmament and non-proliferation of chemical weapons (CW) and the peaceful uses of chemistry. This post will focus on three questions which proved to be challenging to produce consensus among States Parties until the eve of the Conference’s last day.

The first question was on how to address the existing reservations to the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of’ Warfare (1925 Geneva Protocol). Several States became party to the Protocol on the condition of reciprocity; limiting their obligations to the scope of States Parties only and/or reserving the right to respond in kind when facing CW and/or biological weapons (BW) use by another State or its ally. These reservations create a conundrum, however, when the reserving State is also party to the CWC which establishes a comprehensive framework on prohibitions under Art. I whereby reservations to the Protocol are deprived of any practical meaning for a deterrence policy. Moreover, there is ambiguity/sensitivity on certain reservations relating to Art. 20(1) of the 1978 Vienna Convention on Succession of States in respect to Treaties.

Russia and others proposed to include a paragraph to the final document which calls on States Parties to withdraw their reservations to the Protocol. This ignited a discussion on the interpretation of the Protocol with statements ranging from those underlining the recognition of the prohibition on CW and BW use during armed conflict as customary international law, to statements viewing the Protocol as being superseded by the CWC. The former statement failed to convince as the mere fact that the prohibition under the Protocol reflects customary international law does not of itself obstruct the establishment of a reservation as it is reflected the Guide to Practice on Reservations to Treaties of the International Law Commission. The latter statement was clearly in contradiction with the Preamble and Article XIII of the CWC, which recognise the complementary relation with and yet the independent status of the obligations under the Protocol.

States Parties reached a consensus on this question as reflected in Paragraph 9.31 in the operative clauses (Part B) of the Final Document of the Third Review Conference (RC3 Final Document). The initial paragraph on this question in the Draft Provisional Text of the Open-Ended Working Group only recalled actions which States Parties had taken to withdraw their reservations. It is unclear what was weighed in the negotiations as these happened in closed sessions of the Committee of the Whole and consultations which lasted until well after midnight on Wednesday April 17. It is clear that Paragraph 9.31 draws inspiration from Paragraph 44 of the Final Document of the Seventh Review Conference (RC7 Final Document) of the Biological Weapons Convention (BWC). The CWC RC3 Final Document does not, however, include a paragraph to stress the importance of the withdrawal of all reservations to the Protocol as adopted in Paragraph 43 BWC RC7 Final Document.

The second concern is the lack of discussion among CWC States Parties on incapacitating chemical agents (ICA). This term can be somewhat a misnomer for those unfamiliar with its concept. As Paracelsus’ famous principle states and is often repeated in CWC context: “the dose makes the poison”. The incapacitating property of a chemical agent is calculated in relation to the percentage of lethality it would produce when applied to a healthy group under certain standardised conditions with the aim to incapacitate almost everyone in the group.

While the CWC governs all toxic chemicals and their precursors (General Purpose Criterion) and prohibits all uses of these agents other than for purposes stated in Art II(9), including law enforcement and domestic riot control purposes, it remains unclear which status ICA’s should assume under the Convention as it provides no explicit definition on ICA’s as such. The closest reference can be found in the definitions of Art II(2) on toxic chemicals that can cause, inter alia, “temporary incapacitation”. Art. VIII(22) of the CWC provides the means to address ICA related developments, but the Conference of States Parties operates mostly by means of consensus whereby States Parties still would need to agree on starting discussions on this matter.

Several States’ views and proposals addressed ICA’s. The German statement on its decision to domestically limit the scope of toxic chemicals allowed for law enforcement purposes to only riot control agents (RCA) under Art II(7) of the CWC excludes any room for ICA’s. Such interpretation would, however, also defeat any other meaning to the use of toxic chemicals for law enforcement purposes other than RCA’s.  The British statement clarified that the UK neither holds nor develops any ICA’s and encouraged other States Parties to also declare their position on the matter. Such practice could, if observed by a significant number of States Parties, create more transparency on ICA’s through an informal method.

The Swiss statement also recognised the need for more transparency on ICA’s, positing that ICA’s could erode the Convention and proposed to start a more formalised and continuous discussion on the matter. Their proposal required a long time to gain support but during the last days of the Conference seemed somewhat certain to be adopted into the final document as the compromise draft enjoyed no substantive objections. The draft paragraph would provide the holding of meetings of governmental experts (somewhat reminiscent of the BWC Meeting of Experts) to discuss, on the basis of consensus, the application of incapacitating chemical agents for purposes not prohibited by the Convention. The proposal did not reach the text of the RC3 Final Document due the need of one State Party in particular to get final approval from the government in its capital city. Such approval could not reach the Conference before its conclusion on Friday night whereby the Swiss proposal was withdrawn for the sake of not impeding the consensus on other matters. ICA’s will remain a subject for additional review.

The third question was…

Weekday News Wrap: Wednesday, May 29, 2013

by Jessica Dorsey

Second Annual Junior Faculty Forum Today and Tomorrow

by An Hertogen

Today and tomorrow, the Annual Junior Faculty Forum for International Law hosts its second event at the University of Nottingham. The Forum is convened by Professors Dino Kritsiotis (Nottingham), Anne Orford (Melbourne) and JHH Weiler (NYU) and its program is here.

Rebels in Syria Threaten Genocide Against the Shia

by Kevin Jon Heller

Bloomberg reports very disturbing statements made by a spokesperson for the Free Syrian Army:

Communities inhabited by Shiite Muslims and President Bashar al-Assad’s Alawite minority will be “wiped off the map” if the strategic city of Al-Qusair in central Syria falls to government troops, rebel forces said.

“We don’t want this to happen, but it will be a reality imposed on everyone,” Colonel Abdel-Hamid Zakaria, a spokesman for the Free Syrian Army in Turkey, told Al-Arabiya television yesterday. “It’s going to be an open, sectarian, bloody war to the end.”

The Colonel apparently made those comments during an interview with Al-Arabiya. You can find the interview (in Arabic) on YouTube here. I asked a friend at the law school to translate for me; here are two other disturbing statements by the Colonel:

“I am telling them, if Al-Qusair falls, then Shia villages in Syria will be wiped off the map. The same applies to Alawite villages. We don’t wish this thing at all, but it will be something out of control.”

“Who would be able to control and restrain thousands of fighters full of spirit of revenge? Who would be able to control all those people?”

Simply put, the Colonel is acknowledging that a government victory at Al-Qusair would almost certainly lead to genocide against the Shia — the Alawites in particular. It is thus worth reminding the leaders of the Free Syrian Army (FSA), in case they read Opinio Juris, that command responsibility applies to them no less than to the leaders of Assad’s forces. The good Colonel has already acknowledged that the FSA is fully aware that its soldiers intend to commit genocide if they lose a key city, so the leaders of the FSA have a duty, in the words of the Rome Statute, “to take all necessary and reasonable measures” to prevent that from happening. If they fail to do so and genocide takes place, they too could be convicted of genocide — even if they did not share their subordinates’ genocidal intent.

The larger point, of course, is that the West should not uncritically valorize the Free Syrian Army as part of its understandable quest to replace the murderous Assad regime. Regime change is not the same thing as regime improvement. Moreover, even if a new regime would be generally better than the Assad regime, that does not mean it would not do terrible things to certain disfavored groups. That is a lesson we should have learned in Libya: although no one is shedding tears for the Gaddafi regime, the new Libyan government has proven all too willing to commit atrocities against groups such as the Tawerghans. Indeed, as I discuss in this essay, there is significant evidence that the Libyan government is responsible for numerous international crimes against the Tawerghans, ranging from the crime against humanity of deportation to perhaps even genocide. Unfortunately, the West has largely ignored those crimes — the result, no doubt, of its deep investment in the new Libyan government’s success.

We can only hope history does not repeat itself.

Law of the Sea Symposium: A Comment on Seline Trevisanut’s post

by Tim Stephens

[Dr Tim Stephens is Associate Professor and Co-Director of the Sydney Centre for International Law, Faculty of Law, University of Sydney.]

Cross-posted at SHARES Blog.

Seline Trevisanut provides a very helpful analysis of some of the significant gaps in the system (if we can call it that) of responsibility in international law for the welfare of those who find themselves in distress at sea. Regrettably, there has been an increase in tragic maritime incidents involving asylum seekers in recent years, not only in the Mediterranean, but also in other oceans seas including the Indian Ocean where several vessels carrying asylum seekers attempting to reach Australia have foundered, and there has been significant loss of life. The death toll from the 20 vessels that have sunk en route to Australia since 2009 now stands at nearly 900. There is an urgent need to clarify the international legal duties upon states to ensure that such tragedies are avoided, and that when sinkings do occur that search and rescue authorities respond promptly and effectively.

As Seline explains, there remains uncertainty, in some situations, as to the chain of responsibility for safeguarding the right to life that persons in distress enjoy. From a human rights perspective, that right can only be enforceable if the relevant individuals are within the jurisdiction of a state, but the jurisdictional status may be uncertain, depending upon where the maritime emergency occurs. Seline makes a compelling argument for treating persons within a Search and Rescue Region (SRR) as within the jurisdiction of the relevant SAR state for the purposes of international human rights law. However, that is often not the end of the enquiry; as not all states are able to discharge their SAR obligations to the same level of diligence, and may not have a system of human rights accountability so that victims and their families can pursue redress.

To illustrate this point by reference to the Australian situation, many asylum seeker vessels become distressed within the Indonesian SRR, and under the SAR Convention it remains Indonesia’s primary responsibility to render assistance. However the situation is somewhat unique in that most of the vessels are usually detected by Australian authorities which then pass the information on to their Indonesian counterparts, who they know have highly constrained capacity to mount a response far from shore, particularly in challenging sea conditions. What this indicates, is that there is a need to clarify (and possibly extend) the search and rescue obligations of parties to the SAR Convention to address such situations where there is a significant mismatch between states in their SAR capacities. Those in peril at sea should not be allowed to be in a ‘legal limbo’, falling between the cracks in the law.

Law of the Sea Symposium: Search and Rescue Operations at Sea – Who is in Charge? Who is Responsible?

by Seline Trevisanut

[Dr Seline Trevisanut is a Marie Curie Fellow and Assistant Professor at the Netherlands Institute for the Law of the Sea (NILOS)]

Cross-posted at SHARES Blog.

On Sunday, 8 May 2011, the British newspaper The Guardian reported the story of a boat carrying 72 persons, among them asylum seekers, women and children, which left Tripoli (Libya) for the Italian island of Lampedusa at the end of March 2011 (for comments, see here and here). After 16 days at sea, the boat was washed up on the Libyan shore with only 11 survivors. During the 16 days route, survivors told that they used their satellite phone, which later ran out of battery, to call an Eritrean priest in Rome for help (see Resolution 1872 of the Parliamentary Assembly of the Council of Europe). The priest alerted the Italian Maritime Regional Coordination Centre, which located the migrants’ vessel and sent out many calls to the ships in the area. Pursuant to survivors’ testimonies, on about the tenth day of their voyage, when half of the passengers were dead, a large aircraft carrier or helicopter-carrying vessel (probably involved in the NATO’s Operation Unified Protector, which was on going at that time off the Libyan shores) sailed near to the boat, close enough for the survivors to see the sailors on board looking at them with binoculars and taking photos. But no one rescued them.

Flag states and coastal states have a duty to render assistance to persons found at sea in the danger of being lost and people in distress (Article 98 of the United Nations Convention on the Law of the Sea (UNCLOS)). This core obligation under both treaty law (see also the 1974 Convention on the Safety of Life at Sea (SOLAS Convention), the 1979 Search and Rescue Convention (SAR Convention) and the 1989 International Convention on Salvage) and customary law applies in any maritime zone and in relation to any activity there performed. While implementing this duty states can either perform directly the search and rescue (SAR) operations, namely through their own SAR services, or ask a vessel, which is located in the proximity of the endangered persons, be it any merchant ship or the state vessel of another country, to perform the rescue operation.

The texts here mentioned expressly refers to states, flag or coastal. Practice however offers more and more examples of police activities performed under the command of an international organization or a supranational body. A question then arises:

  • who are the bearers of the obligation? Namely, are those ‘entities’ (such as NATO) bound by the duty to render assistance?

The answer could be affirmative only if we consider that the duty to render assistance under customary international law has a wider scope of application ratione personae, if compared with the same obligation under treaty law. The practice however does not allow yet such a conclusion.

Another question raised by recent practice concerns the recipient of the obligation:

  • Is the duty to render assistance a purely inter-state obligation or does it entail a right to be rescued for people in distress at sea?

Continue Reading…

Weekday News Wrap: Tuesday, May 28, 2013

by Jessica Dorsey

Law of the Sea Symposium: Maybe Non-State Actors Are More Important than States

by Julian Ku

Irini Papanicolopulu highlights the important and sometimes central role that non-state actors have in the whaling disputes between Japan and Australia.  Invoking the traditional lens of international law, she considers whether the actions of Sea Shepherd Conservation Society (SSCS) or the Institute for Cetacean Research can implicate state responsibility. Her conclusion is properly uncertain given the murky relationships between Australia and Japan and the relevant non-state actors.  But I wonder if she is asking the wrong question.

The problem of individual non-state actors acting as possible proxies for states is hardly a new problem of international law.  One only has to review the long history of U.S. “filibustering” expeditions into the Caribbean and Central America to find historical examples of individual non-state actors effectively advancing the interests of a state like the United States, even as the U.S. carefully avoided direct support or responsibility.  A U.S. citizen named William Walker, for instance, very nearly brought Nicaragua into the United States through his “private” but tacitly U.S. government supported expeditions (Similar efforts were launched against Cuba and Hawaii, with varying success). In these cases, a private actor is advancing a sovereign’s interest, and the case for state responsibility becomes obvious.

What makes the Australia/Sea Shepherd v. Japan/Institute for Cetacean Research dispute so interesting, however, is the possibility that neither SSCS nor ICR are actually acting in a way that would advance their state’s interests.  We then enter a world where private non-state actors are truly engaged in a private war outside the territorial jurisdiction of any nation.   The private actors in question are truly motivated by their individual interests, and, if anything, they are driving sovereign state policy rather than the other way around.  In this situation, the non-state actors are primary players, but because they operate effectively free from domestic regulations or restraints, their clashes are not clearly governed by international or domestic laws. Hence, the U.S. Court of Appeals’ efforts to squeeze the SSCS in the “pirate” category does seem a stretch. But given the paucity of other regulations for purely private actors on the high seas, it seems defensible or at least more understandable.

Law of the Sea Symposium: Whaling wars, non-state actors and international responsibility

by Irini Papanicolopulu

[Dr Irini Papanicolopulu is a Lecturer at the University of Glasgow and Senior Research Fellow at the University of Milano-Bicocca]

Cross-posted at SHARES blog.

Whaling disputes are multifaceted. While Australia and Japan are confronting each other in The Hague (see the post by Natalie Klein), Sea Shepherd Conservation Society (SSCS), an American NGO, and the Institute of Cetacean Research (ICR), a Japanese research institution, fight strenuously in court and at sea. Following the moratorium on commercial whaling decided by the International Whaling Commission in 1984, Japan has licensed ICR to conduct research projects involving the killing of numerous whales. ICR activities, however, are increasingly physically hampered by SSCS vessels, which harass ICR vessels on the high seas. As already noted on this blog, in February the U.S. Court of Appeals for the Ninth Circuit reversed a lower court and granted ICR a preliminary injunction against SSCS, defining the latter as ‘pirates’. And while ICR is threatening contempt action against them, SSCS for their part have initiated proceedings in front of a Dutch judge for violation of environmental laws by ICR.

The fight between SSCS and ICR reserves many dramatic turns and much suspense but … is there any room for issues of international responsibility in a case that pits one private entity against another private entity? Is not this a matter for domestic jurisdiction or, at most, an issue for conflicts of law? Not entirely: the presence of actors other than States adds complexity to issues of international responsibility and raises a number of questions. Two strands are significant. In the first place, the presence of individuals does not automatically rule out the State. States always act through individuals or other entities, their organs, and they can endorse or support the conduct of subjects other than their own organs. If Japan endorses or supports the acts of ICR, or if Australia supports the activities of SSCS, the States can incur responsibility directly, for breach of international obligations. In the second place, the dispute between SSCS and ICR raises issues relating to the subjectivity of non-state actors at the international level, and the extent to which they may make use of, or be subject to, the rules regulating international responsibility.

From among the many issues involving whaling disputes and international responsibility, I will briefly address three. Continue Reading…

Law of the Sea Symposium: A Comment on Natalie Klein’s post

by Tim Stephens

[Dr Tim Stephens is Associate Professor and Co-Director of the Sydney Centre for International Law, Faculty of Law, University of Sydney.]

Cross-posted at SHARES blog.

Natalie Klein has drawn attention to a longstanding weakness in those fields of international law, including international environmental law, devoted to serve collective interests, in matching obligations with rules of responsibility for their breach. The law of state responsibility applies in a fairly straightforward way to situations where there is an obligation under a treaty to protect the environment, that is violated by a treaty party, with clear impacts upon another party. However, as Klein points out, when it comes to iconic whale and shark (and indeed other) species found on the high seas the responsibility situation may be far from straightforward, and this can frustrate efforts to enforce conservation rules.

In the Whaling in the Antarctic Case before the ICJ, Australia contends that Japan has breached the International Convention for the Regulation of Whaling (ICRW) because it is engaging in commercial whaling, in contravention of the moratorium adopted under the ICRW. Australia has not made express its arguments on standing, such as by asserting any special interest in Japan’s conduct above and beyond that of any other party to the ICRW. It is difficult to see how there is any such special or defined interest. Were the ICJ to apply the conventional standing approach this would seem to disentitle Australia from raising this complaint in the ICJ. It could also rule out any challenge by any state against Japan’s whaling program. The net effect is that there could be no party at all able to invoke the potential responsibility of Japan under the ICRW.

This is a clearly undesirable situation. As Klein observes, whales may not have their own legal rights (but of course there is a tremendous philosophical literature on precisely this point). But there is a mechanism, set out in Article 48 of the International Law Commission’s Articles on State Responsibility, for states to seek to defend common environmental values. The International Tribunal for the Law of the Sea referred to Article 48 in its Advisory Opinion on the Deep Seabed and concluded that where there is damage to the environment from mining the deep seabed beyond national jurisdiction ‘each…party [to the UN Convention on the Law of the Sea] may…be entitled to claim compensation in light of the erga omnes character of the obligations relating to the preservation of the marine environment of the high seas and in the Area.’ (at [180]). And the ICJ in Questions Relating to the Obligation to Prosecute of Extradite also concluded that any party to the Torture Convention may invoke the failure of another party to comply with the obligations erga omnes partes established by it (see [68]-[69]).

It remains to be seen how the ICJ will approach these issues in the Whaling in the Antarctic Case, however it is to be hoped that the Court will refer to and endorse Article 48 of the ASR which provides an important avenue for public interest international environmental claims to be pursued.

Law of the Sea Symposium: What Responsibility over Iconic Marine Living Resources?

by Natalie Klein

[Dr Natalie Klein is Professor and Dean of Macquarie Law School, Australia]

Cross-posted at SHARES blog.

One of the most successful environmental campaigns was captured by the slogan of ‘Save the Whales’. It was apparently when the Australian Prime Minister’s daughter returned home from school sporting a Save the Whales badge that the initial impetus was provided for Australia to shift from pro-whaling nation to anti-whaling. Over the decades, we have seen a fundamental change in the legal regulation of whaling: from minimal regulation and maximum exploitation to a zero-catch quota (colloquially known as the moratorium) on commercial whaling under the International Convention for the Regulation of Whaling (ICRW). There has been resistance to this moratorium – from those states that never agreed to the imposition of a moratorium and those states that seem to thwart the moratorium by conducting commercial whaling under the guise of legally permissible scientific whaling, as Australia asserts Japan is doing.  If we are to maintain legal standards in the conduct of whaling then how can states be held responsible?

In considering the intersection of the law of responsibility in relation to whaling, there is an initial question as to whom the obligation is owed? Continue Reading…

Symposium on the Law of the Sea and the Law of Responsibility

by Kristen Boon

This week we are delighted to bring you a symposium exploring the intersection between the law of responsibility and the law of the sea.   The motivation for this symposium is twofold:

First, although there is long interaction between the law of the sea and the law of responsibility, the law of the sea has become an area where the intersection is of increasing importance.  The posts this week will highlight the ways in which the law of responsibility is being invoked in current controversies involving marine species and resources like whales, sharks and fisheries; and examine the role of the law of responsibility in recent cases involving search and rescue operations, flagged ships, and whaling.  The posts will also show that in some instances, there are gaps in the general rules of responsibility that render them inadequate or inappropriate for certain types of disputes with regards to the law of the sea.  A dimension of particular interest in this regard will be instances in which questions of shared responsibility arise; these posts will be cross-posted on the SHARES website at the University of Amsterdam, Faculty of Law.

Although we cover law of the sea issues from time to time here at OJ, its not a field we post on regularly.   The second goal behind this symposium is therefore to engage in a sustained discussion on developments of note with experts in Europe, North America, and Australia.

Our bloggers and commentators this week include:   Natalie Klein, Yoshinobu Takei, Irini Papanicolopulu, Seline Trevisanut, Anastasia Telesetsky, Tim Stephens and Ilias Plakokefalos.

I hope you enjoy the topic, and we look forward to lively exchanges and comments.

Weekday News Wrap: Monday, May 27, 2013

by Jessica Dorsey

Two Unpleasant Possibilities Regarding the Drone Program

by Kevin Jon Heller

A number of people have responded to my drone posts (see here and here) by arguing that the “near certainty” standard Obama endorsed regarding the possibility of civilian casualties represents a break from the past — a new targeting standard, not an old one. If that’s the case, someone needs to tell the Secretary of State. Here is what John Kerry said today (emphasis mine):

“The only people that we fire on are confirmed terrorist targets, at the highest levels, after a great deal of vetting,” Kerry told a group of young people at the University of Addis Ababa.

“I am convinced that we have one of the strictest, most accountable and fairest programs,” Kerry said. The United States is the only nation known to operate killer drones against foreign targets.

“We do not fire when we know there are children or collateral,” civilians, Kerry said. “We just don’t. We have absolutely not shot at high-level targets when we have seen that there are people there.”

There are really only two possibilities. The first is that despite the US’s insistence that it refuses to launch a drone attack unless there is near certainty that civilians will not be killed, it actually applies the much less strict principle of proportionality that is at the heart of IHL. The second is that the US does, in fact, apply the near-certainty standard — but is just really, really bad at targeting, routinely mistaking civilians for combatants (at weddings and funerals, during rescue missions, and so on).

I’m not sure which possibility is more disturbing.

Events and Announcements: May 26, 2013

by Jessica Dorsey

Calls for Papers

  • A call for papers has been issued for a workshop and publication on “Natural resources grabbing: erosion or legitimate exercise of State sovereignty?” 4th and 5th October 2013 at the University of Cagliari (Sardinia, Italy). Deadline for submissions of abstracts is 15 June 2013. The growing demand for natural resources has triggered a “race” to their exploitation and possession, especially in developing countries. This research project aims at addressing, from an international law perspective, this very complex challenge for the international community. More information can be found here.
  • The American Society of International Law and the American Branch of the International Law Association have issued a call for proposals for a joint conference, which will comprise the 108th Annual Meeting of the American Society of International Law and the 76th Biennial Conference of the International Law Association. The conference theme is “The Effectiveness of International Law.” For more information, click here.
  • The American Society of International Law’s International Economic Law Interest Group (ASIL IEcLIG) is pleased to issue a Call for Proposals for its inaugural Junior Scholars Research Forum, to be held at the University of Pennsylvania’s Wharton School, in Philadelphia, on November 22, 2013. The deadline for receipt of proposals is June 25th, 2013 and more information can be found here.

Upcoming Events

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

Meanwhile, Back to Important Policy Debates Over … EVOO

by Kenneth Anderson

Though I’m as much caught up in the drones debate du jour as anyone here at OJ, there are other pressing matters internationally, and one of them is olive oil.  I’ve blogged about EVOO adulteration in the past year, but the current contretemps is different.  EU regulators want to require that restaurants serve olive oil at the table in sealed individual servings (I guess a little bit like the little sealed catsup bottles one sometimes sees in restaurants in the USA) rather than the common practice of serving olive oil, for dipping bread or what-have-you, in little decanters.  The concern is partly health and food safety, but it also appears to be a press by agricultural interests to force the use of labeled olive oil, which will presumably have the effect of pushing up consumer awareness (yes, if – big if – what’s on the label is true), price (definitely), and quality (maybe, maybe not). So, as reported in the New York Times a few days ago (it appears the rule has been shelved for now):

The measure, which would have required that restaurants serve olive oil in sealed, clearly labeled and nonreusable containers, was meant to guarantee hygiene, according to the European Commission, the union’s executive body, which originally drafted the rules. It said the labeling would ensure the quality and authenticity of olive oils and also offer suppliers an opportunity to promote brand awareness, backers said. And the measure stood to benefit European olive growers, mostly clustered around the Mediterranean, in some of the countries hardest hit by the crisis in the euro zone. Fifteen of the union’s 27 governments supported the rule, including the major producers, Italy, Greece, Spain and Portugal. Portugal has had similar measures in place since 2005. But governments in the non-olive-producing north, including Germany, were opposed. Britain abstained.

The pushback was on classic EU terms, I guess we could say: Complaints that this sort of thing should never reach the level of the EU, and that individual states could deal with this kind of thing on their own:

The reaction was severe. Prime Minister Mark Rutte of the Netherlands condemned the measure, calling it “too bizarre for words” and not at all green. Criticism was particularly harsh in Britain, often the first among critics of the European Union’s reach. The olive oil rule was “exactly the sort of area that the European Union needs to get right out of, in my view,” Prime Minister David Cameron of Britain said Wednesday after a meeting of the bloc’s leaders in Brussels. “It shouldn’t even be on the table,” he said, immediately begging forgiveness for the wordplay.

Food safety is only partly the issue; from the standpoint of Europe’s olive oil producers, the much bigger issue is brand recognition and quality assurance – assuring quality and authenticity of olive oils served, which is also to say, raising the price.  But here the EU runs into a quite different problem; restaurants refilling olive oil bottles with oils of lesser quality is the least of the concerns about EVOO authenticity and quality.  I’ve blogged in the past about the surprising (at least to me as an international business transactions professor) fact of massive adulteration of “extra virgin olive oil” both inside the EU and in the global export market.  It’s adulterated with either lower grade olive oil, or else the oil itself is mostly low grade olive oil heated to take out the bad flavors (heated oil is essentially flavorless), or else different plant oils altogether (such as cottonseed oil.  It overwhelmingly happens at the producer, wholesaler, or distributor level, before it leaves the EU; it’s pretty clear that the supermarkets, even specialty store chains such as Whole Foods, whether in the US or Europe, have no idea that the product is not what it says.   Continue Reading…

Weekend Roundup: May 18-24, 2013

by An Hertogen

This week on Opinio Juris, drone strikes unsurprisingly took center stage. In anticipation of President Obama’s speech, Jonathan Horowitz contributed a guest post on their human rights impact and Ken pointed to his new essay arguing the case for drone strikes. Deborah linked to the transcript of the speech here, and pointed to two things she liked about itDeborah also discussed the White House Fact Sheet on Use of Force Procedures, and summed it all up with a post on what the newly released documents on targeted killing tell us compared to the leaked DOJ White Paper a few months ago. Kevin considered the requirement of “near certainty” of no civilian casualties a blatant lie that made him distrustful of all claims made in the speech.  He followed this up with a post outlining two problems with the “near certainty” standard and another arguing that the standards for the use of force in the fact sheet are a retreat from IHL. In a guest post Michael W. Lewis argued that Obama got it right

In other posts, Kevin posted a must-see link to a report visualizing international criminal justice and recommended an article by one of his students on the Kapo trials

We also revisited our discussion of Samantar, with Ingrid Wuerth’s guest post on foreign official immunity, and of the Philippines-China UNCLOS arbitration, with a post by Julian who wasn’t convinced by Professor Stefan Talmon’s argument that all of the Philippines’ claims against China fall outside of the tribunal’s jurisdiction. Julian also asked whether we should care about the upcoming hearings by the US Senate Foreign Relations Committee on ratification of the Convention on the Rights of Persons with Disabilities.

Speaking of international conventions, Duncan got inspired by Jennifer Lawrence to draft a petition to the White House to ratify the VCLTIO.

Finally, as always we provided you with a list of events and announcements and with weekday news wraps.

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

The US’s Retreat from IHL (or, the Triumph of Ryan Goodman)

by Kevin Jon Heller

In previous posts (here and here), I discussed the reasons why Obama will never actually enforce the “near certainty” standard regarding civilian casualties and noted that the standard is vastly more restrictive than IHL’s principle of proportionality. In this post, I want to explain why the new targeting standards for the use of lethal force “outside the United States and areas of active hostilities” represent a complete retreat from IHL in general. As I discuss in my article on signature strikes, the US has always insisted that its drone strikes are governed by IHL, not by IHRL, because — to quote John Brennan — “[a]s a matter of international law, the United States is in an armed conflict with al-Qaida, the Taliban, and associated forces.” Yet almost none of the requirements articulated in the fact sheet the US released regarding Obama’s speech have any basis whatsoever in IHL. Here are those requirements:

[1] A target that poses a continuing, imminent threat to U.S. persons;

[2] Near certainty that the terrorist target is present;

[3] Near certainty that non-combatants will not be injured or killed;

[4] An assessment that capture is not feasible at the time of the operation;

[5] An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and

[6] An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.

Requirement 1 could perhaps be reconciled with IHL’s concept of membership in an organized armed group, which requires the individual to assume a continuous combat function therein, as long as we assume that anyone who qualifies as a member poses “a continuing, imminent threat” of violence. But it cannot be reconciled with the idea of direct participation in hostilities; almost by definition, a civilian who DPHs does not pose a “continuing, imminent threat.” Moreover, nothing in IHL requires a fighter in a non-international armed conflict to pose a threat to the United States; has Obama now abjured the right of the US to act on behalf of other states fighting terrorism, at least outside of the “active zone of hostilities”?

Requirement 2 echoes IHL’s presumption of civilian status and requirement (in Art. 57(2) of AP I) that “[t]hose who plan or decide upon an attack shall… [d]o everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects.” But Requirement 2 (“near certainty that the terrorist target is present”) seems to articulate a standard that is singificantly more restrictive than IHL, even accepting that the quantum of evidence IHL requires to rebut the presumption of civilian status is unsettled. Israel and New Zealand, for example, believe that IHL prohibits an attack only if there is “substantial doubt” or “significant doubt,” respectively, about the status of the target. Even the ICRC appears to adopt a less restrictive standard, insisting that an attacker must presume civilian status even in cases of “slight doubt.” (Although perhaps “near certainty” and “slight doubt” are two sides of the same coin.)

Requirement 3 was addressed in my previous post…

One of the Things We Learned About Targeting

by Deborah Pearlstein

There is now a set of important new documents regarding its targeted killing operations: (1) a letter from U.S. Attorney General Eric Holder to members of Congress describing the decision to target U.S. citizen Anwar al-Aulaqi; (2) a “fact sheet” on procedures for the use of force outside areas of “active hostilities”; and (3) the transcript from the President’s speech to the National Defense University. What can we glean from them about the legality of U.S. drone operations, as opposed to what we learned from the leaked DOJ White Paper some months back? I’m still sorting it out, but for now, here’s one: Whether or not you believe the United States is in a legally recognizable transnational non-international armed conflict with Al Qaeda – a view the United States embraces but the ICRC and most U.S. allies reject – the standards announced in these documents appear intended to keep U.S. targeting operations in line with the international law of self defense.
Continue Reading…

Ratify the VCLTIO Now!

by Duncan Hollis

There’s lots of serious international and national security talk to be had today following yesterday’s NDU address by President Obama.  But, as part of my continuing quest to track international law in popular culture, I offer readers a bit of Friday afternoon levity:

9 Photos of Jennifer Lawrence that will make you Reassess the Scope of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations.

No, I did not make up that title.  The Onion did via an author(s) who clearly knows far too much about the law of treaties.  After all, a neophyte might poke fun at the paradox of Article 6’s assertion of general treaty-making authority for IO’s in a treaty.  But not the Onion.  They tackle larger issues such as was “the ILC’s decision to model the VCLTIO provisions as closely as possible on the structure and terminology of its mother treaty really wise, considering the vastly different characteristics of international organizations?”

Truly inspired.  And although one could take offense at the juxtaposition of photographs of a famous female actress with descriptions of international law, I’d think the Onion could have posted 9 photographs of anything from naval vessels to Frank Lloyd Wright homes and captions like this one would still be funny:

Hold on just a sec here. She’s beautiful, witty, down-to-earth, AND she reminds you that the Conference was unable to resolve the question of the rights and/or obligations that might arise for states’ members of an international organization from a treaty to which that organization is a party? Is this girl actually real?

In any case, I’m now drafting a petition to the White House urging President Obama to support quick Senate action on the VCLTIO, and maybe, just maybe, they’ll take a look at the little treaty that preceded it — the 1969 VCLT.

P.S.  I really hope whoever authored this got high marks on their international law exam — or at least now appreciates how such knowledge can come in handy in the unlikeliest of scenarios.

Guest Post: Obama Got it Right on Drones

by Michael W. Lewis

[Michael W. Lewis is a Professor of Law at Ohio Northern University where he teaches International Law and the Law of War.] 

On drones there was not that much new from President Obama yesterday, but what he emphasized tells us something about where the debate on drones remains.  Echoing statements that have been previously made by a number of his advisers he challenged the continuing claims that drones are inaccurate, counterproductive and continue to cause increasing numbers of civilian casualties.  He also officially provided some new information on oversight and the approval process, although much of this information is found in Klaidman’s “Kill or Capture”.

Although there have been exchanges here at OJ as much as a year ago in which there seemed to be a consensus on all sides that drones were not causing disproportionate or excessive civilian casualties when compared to other tools of warfare, that issue still appears to be the primary criticism of drones.  You have to look no further than yesterday’s New York Times to see an editorial that claims that drones continue to cause increasing civilian casualties.

As a result it was important for Obama to outline the alternatives to the continued use of drones in places where the local government is unable or unwilling to counter a terror threat to the US.  As I pointed out in the LA Times in February the alternatives are special forces, manned aircraft strikes and cruise missiles, invasion or turning over the matter to law enforcement.  It is important to remember that “law enforcement” in these contexts is the Pakistani or the Yemeni Army.  In the past, attempts by the Pakistani Army to regain control of areas of FATA have been humanitarian disasters.  The Swat Valley campaign in 2009 displaced over a million civilians when the Pakistani Army used artillery, armor and airstrikes to go after ~5,000 Taliban/al Qaeda fighters.  Last year rumors of a new Pakistani Army offensive in Waziristan sent thousands of civilians fleeing the area even though no offensive took place.

The other options, night raids by special forces, manned aircraft or cruise missile strikes or a full scale invasion by ground troops, would all cause more displacement and disruption of the local civilian population than drones do.  It is important to emphasize, as Obama did yesterday, that…

Two Problems with the “Near Certainty” Standard

by Kevin Jon Heller

A couple of people have suggested to me that I should be celebrating Obama’s adoption of the “near certainty” standard, because it is more protective of civilians than the principle of proportionality. I will not celebrate the standard, for two very simple reasons. First, I don’t believe for a moment that Obama will actually enforce it, no matter how pure his intentions. If you disagree, consider the following hypothetical (and obviously counterfactual) scenario:

The CIA learns through drone surveillance and a human informant that Osama bin Laden is having dinner with one of his wives inside his Abbottabad compound. It asks Obama to authorize a drone strike on bin Laden. Obama declines, because there is not “near-certainty that no civilian will be killed or injured in the attack.” On the contrary, there is absolute certainty that a civilian will be killed.

If you believe that Obama would decline to act in this hypothetical situation, I have a lovely bridge to sell you. But that is precisely what the “near certainty” standard would require.

Second, and perhaps more importantly, Obama should not enforce the standard, because it is fundamentally inconsistent with his obligation — with any President’s obligation — to protect the US. However skeptical of American power we may be, we have to acknowledge that there are, in fact, times when it is important for a President to use lethal force even though he or she knows innocent civilians will die in the process. The bin Laden hypothetical is one example; another is a situation in which a suicide bomber uses a small child as a human shield while approaching his target. Would we really want a President to refuse to kill the suicide bomber because he or she knows with absolute certainty that the child will die in the attack? The principle of proportionality, for all its subjectivity, exists for a reason: because no matter how attractive objective standards like “near certainty” may seem, anticipated civilian damage does, in fact, have to be balanced against the military advantage of an attack. The loss of innocent civilian life, though regrettable, is not always unjustified.

Note: I have restructured the post for clarity.

Obama Thinks We’re All Rubes

by Kevin Jon Heller

There is a classic jury instruction that reads, “[a] witness who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.” I immediately thought of that instruction when I read Obama’s national-security speech today, because it contains such a blatant lie that it is impossible to take anything else that Obama said seriously:

And before any strike is taken, there must be near-certainty that no civilians will be killed or injured — the highest standard we can set.

The United States, of course, has used drones to attack wedding parties. And funerals. And rescuers. And densely populated villages. Yet Obama has the temerity to claim that the US does not launch attacks unless there is “near certainty” that no civilians will be harmed. Has there been a bigger — and more obvious — lie since John Brennan’s risible claim in 2011 that drone strikes had not caused “a single collateral death”?

What is most perverse about Obama’s purported requirement is that, from a legal standpoint, it is completely unnecessary. International humanitarian law does not demand perfection; it demands proportionality. Innocent civilians die in legitimate military attacks. They always have, and they always will — no matter how “precise” weapons like drones become. Every military commander in every country in the world accepts that basic fact of warfare. But not Obama, winner of the Nobel Peace Prize. He cannot bring himself to acknowledge that the US is — like every other country — willing to launch attacks that are likely to kill innocent civilians when it believes the targets are important enough. He would rather pretend, in public and seemingly without shame, that the US is more virtuous and has cleaner hands than everyone else, friend and foe alike. Never mind that if the US took his targeting standard seriously, its drone fleet would be gathering dust in a hangar somewhere.

Obama gives a good speech. But, as the jury instruction goes, “[a] witness who is willfully false in one material part of his or her testimony is to be distrusted in others.” I think it is safe to say that we should be deeply distrustful of all the claims Obama made in his speech today, not just the wilfully false one. We simply cannot count on him to tell us the truth about the US’s national-security policy.

Starting at the End

by Deborah Pearlstein

Far too much to say for one blog post, so I’ll start with two things I liked about the speech. First, bravo on the President for giving it. Would that he had done it years ago. Indeed, having heard it, it is even more of a puzzle why it took as long as it did. Still, he undoubtedly helped himself with Congress and the public in defending his use-of-force policies, and the debate moving forward will be, at the least, somewhat better informed. Second, big picture strategy. Obama urged the need for a comprehensive counter-terrorism strategy going forward, returning repeatedly to the idea that the U.S. war with “Al Qaeda, the Taliban, and associated forces” must end. Some examples from the speech strung together:

“From the Civil War, to our struggle against fascism, and through the long, twilight struggle of the Cold War, battlefields have changed, and technology has evolved. But our commitment to Constitutional principles has weathered every war, and every war has come to an end…. We must define the nature and scope of this struggle, or else it will define us, mindful of James Madison’s warning that “No nation could preserve its freedom in the midst of continual warfare.” …. [T]he use of force must be seen as part of a larger discussion about a comprehensive counter-terrorism strategy. Because for all the focus on the use of force, force alone cannot make us safe. We cannot use force everywhere that a radical ideology takes root; and in the absence of a strategy that reduces the well-spring of extremism, a perpetual war – through drones or Special Forces or troop deployments – will prove self-defeating, and alter our country in troubling ways…. All these issues remind us that the choices we make about war can impact – in sometimes unintended ways – the openness and freedom on which our way of life depends. And that is why I intend to engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorists without keeping America on a perpetual war-time footing….”

This view is important, strategically sound (the world can make terrorists faster than America can kill them), and consistent with U.S. and international law understandings that there is and should be a legal dividing line between law at war, and law at peace. It signals the recognition of an end game, of the need to address terrorism not as a war-emergency but as a chronic disease, potentially fatal if not managed appropriately. Especially critical among the statements of strategy in light of the series of recent hearings in Congress on the need for a revised AUMF was the President’s announced refusal to expand it:

The AUMF is now nearly twelve years old. The Afghan War is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. That’s what history advises. That’s what our democracy demands.

The speech leaves unclear who, other than AQAP, the Administration thinks counts as an “associated force” of Al Qaeda, so it is likewise unclear how much it matters the President’s commitment not to expand the authority further. By including AQAP under the AUMF blanket, the administration already reads its AUMF use of force authority to extend to a group that did not exist in 2001 and that itself played no role in the attacks of 9/11. Nonetheless, it was somewhat reassuring to hear the President reject an interpretation of the law that would have it extend automatically to any group calling itself Al Qaeda. And his commitment not to sign an expanded AUMF suggests he will not be proceeding simply by adding the names of new terrorist groups to the list the AUMF already covers (namely Al Qaeda, the Taliban and “associated forces”), or by removing the statutory link to the attacks of 9/11 the AUMF currently requires, or by delinking AUMF authority from the requirement (recognized by the Supreme Court) that the statute be informed by the international law of armed conflict. And in principle at least, as the President implicitly recognized, the end of the AUMF war brings legal consequences. As he put it, “we bring law of war detention to an end.”

In the meantime, even in the President’s terms, there is at the very least more than a year between now and anything like the beginning of an end (when combat troops leave Afghanistan). Look forward to a summer of ongoing conversations with Congress and the public about who we can target under the AUMF, and what process they’re due.

Link to White House Fact Sheet on Use of Force Procedures

by Deborah Pearlstein

Another must-read today from the White House, a one-pager titled “Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities.” Here’s the link.

From the introduction:

[T]he President has approved, and senior members of the Executive Branch have briefed to the Congress, written policy standards and procedures that formalize and strengthen the Administration’s rigorous process for reviewing and approving operations to capture or employ lethal force against terrorist targets outside the United States and outside areas of active hostilities. Additionally, the President has decided to share, in this document, certain key elements of these standards and procedures with the American people so that they can make informed judgments and hold the Executive Branch accountable. This document provides information regarding counterterrorism policy standards and procedures that are either already in place or will be transitioned into place over time. As Administration officials have stated publicly on numerous occasions, we are continually working to refine, clarify, and strengthen our standards and processes for using force to keep the nation safe from the terrorist threat.

On very quick read, here’s the part I think matters most:

[L]ethal force will be used outside areas of active hostilities only when the following preconditions are met: First, there must be a legal basis for using lethal force… Second, the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons. It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force. Third, the following criteria must be met before lethal action may be taken:
1. Near certainty that the terrorist target is present;
2. Near certainty that non-combatants[1] will not be injured or killed;
3. An assessment that capture is not feasible at the time of the operation;
4. An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and
5. An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.

Link to President Obama’s Speech

by Deborah Pearlstein

An hour long as delivered, and full of substantive content. Transcript is here.

Ilana Singer on the Kapo Trials

by Kevin Jon Heller

I want to call readers’ attention to a new — and very original — article written by one of my best Melbourne students, Ilana Singer, which has just been published in Criminal Law Forum. Here is the abstract of the article, which is rather wordily entitled “Reductio Ad Absurdum: The Kapo Trial Judgements’ Contribution to International Criminal Law Jurisprudence and Customary International Law”:

Several Jewish persons designated as concentration camp guards (Kapos) during the Holocaust were subsequently tried in Israel in the 1950s and 1960s for allegedly committing grave crimes. This article examines these trial judgements and considers their significance to international criminal law jurisprudence and customary international law. First, this article will delineate the trial judgements’ purpose, relevance and previous contribution to customary international law. Secondly, a comparative narrative of the judgements with recent case law from the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court will illuminate their potential contribution, specifically to the principles of modes of liability, criminal intent, and the defence of duress. The Kapo trial judgements may therefore continue to offer an extreme case example and a worthy source of common law for international criminal law jurisprudence and customary international law.

The article makes an important contribution to the regrettably scarce literature on the Kapo trials. Anyone interested in the Holocaust, the trials themselves, or war-crimes trials in general should check it out. The final draft of the article is available on SSRN here, and the article itself is available here.

Weekday News Wrap: Thursday, May 23, 2013

by Jessica Dorsey

The Case for Drones, or, My New Essay in Commentary Magazine

by Kenneth Anderson

Noticing President Obama’s big speech tomorrow at the National Defense University on US counterterrorism policy, Commentary Magazine has decided to release today my new essay, “The Case for Drones.”  It will appear in the print journal in June, but has been posted with a free, open link on the website now.

A couple of caveats for OJ readers, if you’re inclined to read it (close relatives of mine have declined on grounds they’ve heard me on this too much already).  Commentary is a conservative magazine, and this is an argument for drones written with a particular audience in mind – conservative readers and Republican members of Congress in particular.  It’s an argument about effectiveness and ethics, not law as such; it’s an overtly politically conservative version of the much more centrist, principled, and neutral argument that, for example, Ben Wittes and I sought to make in the Oxford Union debate.  I hope that some folks still might find it useful as a thumbnail sketch in non-technical form of some of the leading arguments, objections, and replies in this debate. Continue Reading…

Should We Care that the Convention on the Rights of Persons with Disabilities is Coming Back to the U.S. Senate?

by Julian Ku

Last December, the U.S. Senate failed to give consent to U.S. ratification of the Convention on the Rights of Persons with Disabilities (CRPD).  Since the election hasn’t really changed the composition of the Senate all that much, I kind of thought this treaty was dead, or at least dormant, for a while here in the U.S.  Maybe not!

Groups opposed to US ratification of the CRPD are saying that the Senate Foreign Relations Committee will hold hearings on June 4 to discuss ratification of the treaty.  And the critics are ready. In the latest critique, Iain Murray and Geoffrey McClatchey argue that the CRPD really does go beyond what U.S. law requires under the American with Disabilities Act by suggesting all entities must give all individuals accommodations, whereas the ADA has a number of important exemptions.  I am not sure about this, and it seems like a fairly technical matter that could be interpreted narrowly or broadly. Since the CRPD would be non-self-executing, I am not sure this would be a huge problem for Congress, which could easily say that the ADA is enough to comply with the CRPD.

More problematically, the senators who offered their opposition last summer in the SFRC committee hearings are deeply troubled by the refusal of the Obama Administration to clarify that the language requiring equal treatment in the provision of “health care” for “sexual and reproductive health” in the CRPD’s Article 25 does not include abortion services. Again, I think the practical impact is fairly small, but I don’t fault senators who are pledged to oppose expansion of abortion services to be worried about this.  Senator Marco Rubio’s proposed “declaration” to attach to advice and consent would seem to solve this.

The United States understands that the phrase “sexual and reproductive health” in Article 25(a) of the Convention does not include abortion, and its use in that Article does not create any abortion rights, cannot be interpreted to constitute support, endorsement, or promotion of abortion, and in no way suggests that abortion should be promoted as a method of family planning.

I don’t see this is a big deal, but if it would remove one obstacle to ratification and get the necessary votes, I don’t see why CRPD proponents wouldn’t just agree to take this language on.

Overall, I do think critics of the CRPD are overstating the likelihood that the treaty will have a meaningful impact on U.S. law and policy.  There could be an impact, but the institutional protection is that any changes required by the CRPD will have to clear Congress in the form of another statute. This is a non-trivial institutional protection.  Sure, the Disabilities Committee will probably crank out some interpretations of the CRPD that the U.S. Congress will disagree with, but the chances of those interpretations seriously affecting U.S. law seem fairly small.

On the flip side, I also think the proponents of the CRPD are exaggerating its benefits.  It may have some small impact on the practice of foreign countries, but there is little evidence it would lead to wholesale changes in other countries either.

As I have argued before, the potential problems in this treaty are just not serious enough for me to get worked up about it.  On the other hand, the benefits are not exactly large enough to get excited about either. Still, the upcoming battle for the CRPD is a proxy for the entire U.S. attitude toward the various U.N. human rights treaties. So it matters, even if this particular treaty is not a big deal.

Weekday News Wrap: Wednesday, May 22, 2013

by Jessica Dorsey

The First Serious Defense of China’s Position on the Philippines UNCLOS Arbitration

by Julian Ku

Professor Stefan Talmon of the University of Bonn and St. Anne’s College in Oxford offers one of the first serious attempts to defend China’s position on the UNCLOS arbitration brought by the Philippines.  In an essay published by the Global Times, China’s hawkish state-owned daily paper, Professor Talmon argues that all of the Philippines’ claims against China fall outside of the jurisdiction of the UNCLOS arbitral tribunal.

For example, the claim that China’s maritime claims in the South China Sea based on the so-called nine-dash line are invalid, the claim that China has unlawfully claimed maritime entitlements beyond 12 nautical miles around certain insular features and has prevented Philippine vessels from fishing in the waters adjacent to those features, and the claim that China has unlawfully interfered with the exercise by the Philippines of its right to navigation and other rights cannot be decided without touching upon China’s claim to historic title and rights within the area of the nine-dash line.

In addition, any measures taken by China against the Philippine vessels may also be subject to the “law enforcement activities” exception with regard to fisheries matters or may be excluded as an exercise of China’s sovereign rights and jurisdiction provided by UNCLOS.

The claim that China unlawfully occupies certain low-tide elevations in the South China Sea cannot be addressed without dealing with the question of sovereignty or other rights over these insular land territories.

Finally, declarations that certain submerged features form part of the continental shelf of the Philippines, that China has unlawfully exploited the living and non-living resources in the Philippines’ exclusive economic zone and continental shelf, and that China has interfered with the Philippines’ right to navigation and other rights in areas within and beyond 200 nautical miles of the Philippines cannot be made without engaging in sea boundary delimitations.

I have to admit I am not very persuaded by this analysis. In Prof. Talmon’s defense, the essay is very short and not an attempt to provide a deep legal analysis of the problem.  But the idea that any challenge to the nine-dash line is excluded from UNCLOS arbitration is hardly obvious to me, since the basis of China’s nine-dash line is very murky anyway. It is not an historic bay.  I suppose it could be an “historic title” within the meaning of Article 298, but that is hardly obvious. Under Prof. Talmon’s reading, any claim of historic title, even if it undermines all of the other principles of UNCLOS, are outside the jurisdiction of the UNCLOS tribunal.

Similarly, when the Philippines argues that something is a “rock” and not an “island” under the definition of UNCLOS, I don’t see how that requires a sea boundary determination?

Most importantly, I can’t see how Prof. Talmon can avoid the question of why China is not even bothering to make these jurisdictional arguments in the UNCLOS tribunal. It is an oddly disrespectful move, to say the least, for China to essentially boycott the tribunal. Does Prof. Talmon think the Philippines case is so weak that ignoring the arbitration is justified?

Still, it is worth exploring these questions, since the arbitral tribunal will likely do so. I would hope Prof. Talmon has a longer version of his views posted somewhere, and if not, he is welcome to do so here at any time!


Weekday News Wrap: Tuesday, May 21, 2013

by Jessica Dorsey

Guest Post: The Human Rights Impact of Drone Strikes

by Jonathan Horowitz

[Jonathan Horowitz is writing in his personal capacity. He is the Associate Legal Officer at the Open Society Justice Initiative’s National Security and Counterterrorism Program.]

When assessing the legality of drone strikes, attention is often focused on the State that carries out the strike—usually the United States.  On May 8th, for example, the U.S. Congressional Progressive Caucus Peace and Security Taskforce held a hearing on the United States use of weaponized drones abroad and heard testimony that detailed specific incidents of civilian harm and encouraged transparency, after-action investigations, accountability, and greater fidelity to traditional understandings of international law. (Harold Koh, the former Legal Advisor to the U.S. Department of State, made similar pleas around transparency during his May 7 speech at Oxford.)

These are all critical points that Congress and others should be hearing, but I would like to shift the focus—away from U.S. responsibilities and on to the responsibilities of the States that consent to the use lethal force on their territories.  This is part of the “drone” discussion (or, to be more accurate, the “extraterritorial use of lethal force outside an active battlefield” discussion) that has not received enough attention. Yet, it is worth exploring how the legal responsibilities of the consenting State interact with the notion of what I’ll call “transnational non-international armed conflict (NIAC) targeting.”

“Transnational NIAC targeting” occurs when a State, which is engaged in a NIAC in one country, targets with lethal force an enemy fighter who happens to be in another country.  Or, to quote John O. Brennan when he was Assistant to the President for Homeland Security and Counterterrorism, it is based on the notion that, “[t]here is nothing in international law that …prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.” (i.e., an Al Qaeda commander who is fighting the United States in Afghanistan but has traveled to Yemen seeking recruits and cash for arms.)

First, I should make clear that lethal targeting outside an active battlefield is, in certain circumstances, permissible under international law…

Weekday News Wrap: Monday, May 20, 2013

by Jessica Dorsey

Guest Post: Official Act Immunity – Getting the Answers Right

by Ingrid Wuerth

[Ingrid Wuerth is Professor of Law and Director of International Legal Studies at Vanderbilt University Law School.] 

Yes, this is another post on foreign official immunity, prompted in part by the Fourth Circuit’s decision in Samantar.  It responds to Professor Bill Dodge’s post here and contributes to the growing blog commentary on this topic summarized in my earlier post here.  I am grateful to Opinio Juris for hosting this discussion.

In this post, I focus on just one issue.  The Fourth Circuit’s decision in Samantar reasoned that jus cogens violations are not “private acts” but instead can constitute “official conduct” that comes within the scope of foreign official immunity.  Bill disagrees, arguing that conduct violating jus cogens can never be official for immunity purposes, but is instead always private.  Facts on the ground, State practice, and the purposes of immunity all suggest that the Fourth Circuit was correct.

As other commentators have emphasized, the perpetrators of human rights abuses do not generally operate privately, but instead “through the position and rank they occupy.”  It is their official position which allows them to “order, instigate, or aid and abet or culpably tolerate or condone such crimes as genocide or crimes against humanity or grave breaches of the Geneva Conventions.”  (Antonio Cassese, at 868).  Thus even for many people who strongly favor accountability in international fora (like the late Professor Cassese), it is hard to view jus cogens as somehow inherently private; one might call this a flies-in-the-face-of-reality argument.  (Dapo Akande & Sangeeta Shah, at 832 (further citation omitted)).  The House of Lords itself – in an opinion directly counter to Bill’s position –rejected the argument that jus cogens violations are not official acts for immunity purposes. Jones v. Saudi Arabia ¶ 19 (Lord Bingham) (“I think it is difficult to accept that torture cannot be a governmental or official act..”) id. at ¶ 85 (rejecting “the argument that torture or some other contravention of a jus cogens cannot attract immunity ratione materiae because it cannot be an official act.”) (Lord Hoffman).

What State practice does support the not-official-acts argument?  Continue Reading…

Events and Announcements: May 19, 2013

by An Hertogen

Calls for Papers

  • The Centre on Human Rights in Conflict is organising a workshop on Law, Faith and Historical Memory to take place in London (Stratford Campus, University of East London) on June, 12. More information is here
  • The University of Wisconsin is inviting internationally acclaimed women scholars and advanced PhD candidates to the second conference on the Creation of International Law: Exploring the International Law Components of Peace, on April 4-5, 2014 as part of its Wisconsin International Law Journal annual symposium. The intention is to continue and expand the network of women scholars and practitioners that was launched in 2009 in Norway to support their engagement in public international law. The deadline for submission of abstracts is October 1, 2013. More details are here.

Upcoming Events

  • The Canadian Bar Association’s International Law Section is organizing its 2013 International Law Conference on Friday June 7th in Ottawa.  The title of this year’s conference is: Emerging Issues in International Corporate Social Responsibility, Corruption and Compliance. Socially responsible business practices and strict adherence to anti-corruption measures are increasingly required of Canadian businesses and organizations. This one-day conference will examine the pertinent legal issues in a holistic way and give participants tips and skills to deal effectively with them in practice.  Registration is available here.


  • TDM Journal has released a special issue on Corruption and Arbitration. The issue analyses new trends, developments, and challenges respecting the intersection between, on the one hand, allegations, suspicions or findings of corruption and, on the other hand, decisions by arbitral tribunals regarding jurisdiction, admissibility and the merits of commercial and investment disputes.

Visualizing International Criminal Justice

by Kevin Jon Heller

I want to call readers’ attention to a remarkable new report on international criminal justice authored by Daniel McLaughlin, a former legal officer at the ECCC, for Fordham’s Leitner Center for International Law & Justice. As the introduction states, the report is an attempt — a very successful one — to visualize information about the criminal tribunals:

There is wide awareness, though little true understanding, of the work of the international criminal tribunals.

International prosecutions of high-ranking civilian and military leaders, including former heads of state, on charges of crimes against humanity, war crimes and genocide, represent for many the ultimate condemnation of these individuals’ past actions and a measure of their fall from power. Yet, despite the tribunals’ grasp on the popular imagination, they are the subject of significant  misconceptions and confusion. Much of the media coverage dedicated to their work remains superficial, at best, and largely muddles over key distinctions between various tribunals, past and present. Conversely, the more informed scholarship is largely confined to specialty publications that remain inaccessible to most. In truth, many lawyers and non-lawyers alike lack a clear understanding of the role and functioning of these increasingly-pivotal international institutions.

This publication seeks to redress this knowledge gap by providing well-researched and accessible information for those wishing to more fully understand the international criminal tribunals and the conflicts over which they have jurisdiction. An informed public is an engaged public — and the issues that animate these tribunals, including delivering justice for victims of some of the world’s worst atrocities, are too significant to be discussed solely by a small cadre of international criminal law specialists.

Notably, this publication was created in partnership with graphic and information designers so as to reach a broader public. The designers’ visualizations present information regarding the tribunals and their underlying conflicts in a direct and accessible manner to a wide range of viewers, including those without a legal background. Beyond this democratizing function, information visualization also serves to reveal important data and trends that might otherwise go unnoticed in a more conventional format. Ideally, the following information, which is current as of January 2013, would be integrated into a continually updated interactive webportal dedicated to engaging a global public on issues of international justice.

In sum, this publication aims to facilitate a broader discussion of the international criminal tribunals’ notable accomplishments, as well as ongoing shortcomings.

I can’t do the amazing graphics justice, so just click through and download the report for yourself! It’s a must read — a must look? — for anyone interested in the tribunals.

Weekend Roundup: May 11-17, 2013

by An Hertogen

This week on Opinio Juris, Kevin was surprised by an unexpected dissenter in Kenya’s request to the Security Council to terminate the ICC’s Kenya cases. He also analysed whether the ICC has jurisdiction over Israel’s attack on the Mavi Marmara and particularly whether the flotilla attack qualifies as a “situation”. He followed up with a post asking why the Comoros are represented by Turkish lawyers in their referral request and why the referral request was only filed now. He also examined whether the PTC could review an OTP decision not to investigate a situation referred to it.

Kevin called on the ICC to keep its website updated, and listed four errors in the description of NBC’s upcoming series Crossing Lines on the ICC Police Unit, poignantly illustrating why outreach by the ICC itself is important to avoid a distorted public understanding of the ICC.

Peter asked whether the Bangladesh Factory Safety Accord was a watershed moment in global governance, while Roger pointed out problems with the Accord’s arbitration clause.

Julian put the spotlight on the confusing legal background of the Senkaku/Diaoyu Islands dispute, and discussed whether California’s Armenian Genocide Law can be struck down on the basis of “field pre-emption”.

Bill Dodge provided another guest post on Yousef v Samantar, in response to last week’s post by Ingrid Wuerth.

Finally, we listed events and announcements and Jessica provided her weekday news wraps.

Have a nice weekend!

Could the PTC Order the OTP to Investigate the Mavi Marmara Situation?

by Kevin Jon Heller

As Bill Schabas noted in his recent post, the Comoros referral raises interesting questions concerning the Pre-Trial Chamber’s power to review a decision by the OTP not to open a full investigation into a situation. Most people who don’t keep a copy of the Rome Statute in their back pocket probably believe that the OTP has complete discretion concerning such declinations. In fact, that is not the case. Here, in relevant part, is Art. 53 of the Rome Statute (emphasis mine):

Article 53
Initiation of an investigation
1.         The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:

(a)     The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

(b)     The case is or would be admissible under article 17; and

(c)     Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber.

3.         (a)     At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.

(b)     In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.

It is clear that Comoros would have the right under Art. 53(3)(a) to ask the Pre-Trial Chamber to review a decision by the OTP not to open a full investigation into the attack on the flotilla. And that would be true regardless of the OTP’s rationale for the declination: (1) lack of evidence that the attack involved a crime within the ICC’s jurisdiction; (2) admissibility concerns — which would turn on whether crimes allegedly committed during the attack were adequately grave and, if so, whether Israel was willing and able to investigate and prosecute those crimes itself; or (3)  the interests of justice.

But here is where things get interesting. If Comoros asked the PTC to review a decision by the OTP not to investigate the attack on the flotilla, thereby triggering Art. 53(3)(a), the PTC would have only one remedy if it disagreed with the OTP’s assessment of the merits of the referral — to “request the Prosecutor to reconsider that decision.” It could not order the OTP to open a full investigation into the attack. So if the OTP reconsidered its decision and again concluded that a full investigation was not warranted, that would be the end of the story.

Art. 53(3)(b), by contrast, would appear to put the PTC in a much more powerful position…

Will the Supreme Court Revisit Dormant Foreign Affairs Preemption in California’s Armenian Genocide Law?

by Julian Ku

Armenian-American groups are up in arms over the U.S. government’s decision to file an amicus brief against a California law allowing claims against insurance companies by “Armenian genocide victims.”  But they shouldn’t be. The law really involves an ongoing constitutional powers debate between the states and the federal government over foreign affairs, and the U.S. government is siding (not surprisingly) with its own powers.  What is more interesting about this case, in the wake of Kiobel, is how human rights groups will increasingly support state autonomy in foreign affairs (to allow human rights lawsuits) and how business and conservative groups will likely oppose it.

The California law had been struck down by a unanimous Ninth Circuit en banc panel on the grounds that it was preempted by federal government policies and constitutional powers over foreign affairs. The law extended a statute of limitations on insurance claims against insurance companies that do business in California for residents or non-residents who are found to be “Armenian genocide victims.”  Both the district court and the initial appellate court panel had found at least some parts of the law could survive a federal preemption challenge (as Roger described here), so the unanimous en banc panel decision was quite surprising.

The Solicitor General’s brief focuses mostly on the “field preemption” theory developed most recently in the U.S. Supreme Court’s decision in American Ins Association v. Garamendi. Field preemption describes a conflict between a state’s actions and the federal government’s “field”, such as foreign affairs.  Conflict preemption focuses on the idea that the federal government has made an express legal determination with which the state law conflicts (e.g. through a statute or treaty, or maybe an “executive foreign policy”). Where the federal government’s policy on the Armenian genocide is a fairly complex muddle, I don’t think there is much of a case for conflict preemption.

Weekday News Wrap: Thursday, May 16, 2013

by Jessica Dorsey

Arbitrating Bangladesh Labor Rights (Part II)

by Roger Alford

As Peter noted yesterday, the recent tragedies in Bangladesh factories have resulted in a major breakthrough with the signing of the Accord on Fire and Building Safety in Bangladesh. Thus far, leading retailers such as H&M, Marks & Spencer, Tesco, Sainsbury’s, Benetton, and Calvin Klein are on board. Notably absent from the list are leading U.S. retailers such as Wal-Mart and Gap.

As noted in my previous post, I have been arguing for years that international arbitration could serve as an important procedural tool for promoting human rights in global supply chains. I applaud the commitment of these retailers to join with leading labor rights groups and enter into a binding agreement to improve working conditions in Bangladesh factories.

I do take issue with the drafting of the arbitration agreement, which clearly could have benefited from a quick review by a lawyer with international arbitration experience. Here’s the relevant language:

Any dispute between the parties to, and arising under, the terms of this Agreement shall first be presented to and decided by the SC [seven-member Steering Committee], which shall decide the dispute by majority vote of the SC within a maximum of 21 days of a petition being filed by one of the parties. Upon request of either party, the decision of the SC may be appealed to a final and binding arbitration process. Any arbitration award shall be enforceable in a court of law of the domicile of the signatory against whom enforcement is sought and shall be subject to The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (The New York Convention), where applicable. The process for binding arbitration, including, but not limited to, the allocation of costs relating to any arbitration and the process for selection of the Arbitrator, shall be governed by the UNCITRAL Model Law on International Commercial Arbitration 1985 (with amendments as adopted in 2006).

Note the peculiarities. There is no governing law clause, no arbitration seat, and no arbitration rules. If a party refuses to arbitrate, there will be no obvious court for the petitioner to file a motion to compel arbitration. Instead the arbitration proceedings are to be governed by the UNCITRAL Model Law on International Commercial Arbitration as a sort of free-floating “anational” governing clause. I suppose that makes the UNCITRAL Model Law the chosen arbitration rules, but I’ve never seen the Model Law function in this fashion. If that’s what the clause does, then any court where an action is brought can compel arbitration and the arbitral panel will be empowered to fill in most of the gaps, including determining the arbitration seat, the governing law, and the scope of its jurisdiction (See Articles 8, 16, 20, 28). Not ideal, but it may do the trick.

Second, the arbitration clause has a peculiar scope. Only disputes “arising under” the Agreement are subject to arbitration, apparently limiting the scope to breach of contract and excluding disputes relating to third-party injuries that relate to the agreement. The scope appears to be further limited by the fact that arbitration is an appellate function only, which may mean that the arbitral tribunal is limited to reviewing legal or factual errors of the Steering Committee.

Third, there is a question as to whether decisions of the Steering Committee are subject to enforcement pursuant to the New York Convention. It appears that only the arbitration awards rendered following an appeal of the Steering Committee decision are subject to such enforcement. This may mean that an appeal is necessary simply to create a binding mechanism for enforcing the parties’ obligations.

My hunch is that despite these errors, if a dispute arises from this agreement the parties will muddle through and find a way to make the dispute resolution clause work. Perhaps in the near term they can clarify these ambiguities when they develop the Implementation Plan mandated by the agreement.

So it’s probably not a pathological arbitration clause, but it could have benefited from a good scrubbing.

Questions About the Mavi Marmara Referral

by Kevin Jon Heller

In my previous post, I expressed my skepticism that the OTP will open a formal investigation into the situation — loosely defined — involving Israel’s attack on the MV Mavi Marmara. In this post, I want to raise two issues concerning Comoros’ referral that I find particularly troubling.

First, why is Comoros being represented by Turkish lawyers, the Elmadag Law Firm Istanbul? There is nothing wrong with a state outsourcing its legal work, of course, and most of the victims of the attack on the MV Mavi Marmara were Turkish. But if the referral is really being driven by Comoros, you’d think the government would be relying on lawyers in its Ministry of Justice — or at least on a Comorian law firm. Instead, the Comoros hired a foreign law firm that has already unsuccessfully requested, on behalf of victims and a Turkish NGO, the OTP to investigate the attack on the flotilla. (See para. 9 of the referral.) That suggests, in my view, that this new request is a “state referral” in name only — a smart litigation strategy, but a curious one.

Second, why now? The attack on the flotilla took place nearly three years ago, yet Comoros is only now referring the situation to the Court. The timing seems particularly curious given that Israel and Turkey appear to be making genuine diplomatic progress in resolving the Mavi Marmara crisis. Just a few weeks ago, Haaretz reported that Israel has agreed to pay “as much as tens of millions of dollars” in compensation to the Turkish citizens wounded and killed during the attack. This latest effort to get the ICC to investigate will not only fail, it could well harm negotiations between Israel and Turkey — especially as one of the points that apparently remains to be resolved is whether Turkey is willing to immunize the IDF soldiers involved in the attack. Indeed, a cynic might suggest that this new referral is designed to undermine those negotiations.

This referral clearly puts Fatou Bensouda in a difficult situation. My hope is that she will conclude her preliminary examination quickly and will release a detailed explain of why (I predict) the OTP is not opening a formal investigation into the attack on the flotilla. Doing so would provide Bensouda with an opportunity to affirm the Court’s potential jurisdiction over the attack — Article 12(2) means what it says about a ship qualifying as a state’s territory, although I assume the drafters of the article assumed that the OTP would investigate crimes committed at sea only as part of a larger situation — while explaining why it would not be appropriate for the OTP to investigate only one small aspect, and only one side, of the Israel-Palestine conflict.

UPDATE: Make sure to read excellent posts on the referral by Bill Schabas and Dapo Akande.

Weekday News Wrap: Wednesday, May 15, 2013

by Jessica Dorsey

Could the ICC Investigate Israel’s Attack on the Mavi Marmara?

by Kevin Jon Heller

This is very interesting. The Union of the Comoros, a state party to the Rome Statute since 2002, has formally referred Israel’s attack on the flotilla that included the MV Mavi Marmara to the ICC. The question I want to address in this post is whether the Court has jurisdiction over the flotilla attack. I think it’s clear that it does — although there is at least one important wrinkle in the analysis. But I also think it’s exceedingly unlikely the OPT will open a formal investigation into the attack.

In terms of jurisdiction, the critical provision in the Rome Statute is Art. 12, “Preconditions to Jurisdiction.” Article 12(2) provides as follows (emphasis mine):

In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a)     The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

The bolded text is critical. The Court has jurisdiction over an international crime only if that crime was committed by a national of a state party to the Rome Statute or on the territory of a state party. Art. 12(a) makes clear, however, that a vessel registered to a state party qualifies as the territory of that state. According to the referral, the MV Mavi Marmara was registered to Comoros at the time of the attack, 31 May 2010. (Comoros provides documentation of registration in an appendix to its referral that is not available on the ICC website.) For purposes of jurisdiction, therefore, the MV Mavi Marmara does indeed qualify as Comoros territory. And that means Art. 12 is satisfied.

The wrinkle in the analysis is whether the attack on the MV Mavi Marmara qualifies as a “situation.” States are permitted to refer situations to the Court, not specific crimes. Here is Art. 14(1):

A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.

Is Comoros referring a situation to the Court? All of the situations currently being investigated by the OTP — Kenya, Libya, Cote D’Ivoire, etc. — are much broader than the situation being referred by Comoros. That said, the referral is not limited solely to the attack on the MV Mavi Marmara. As Comoros’ supporting documentation notes, one other ship in the attacked flotilla, the MV Sofia, was registered to a state party — Greece. Moreover, the referral suggests that Israel’s June 6 attack on the MV Rachel Corrie, which was registered to Cambodia, a state party, should also be included in the overall situation. (The referral tries to link the attack on the flotilla to the situation in Gaza, suggesting that the attack would be part of any situation referred to the Court by Palestine. That’s clever but irrelevant, at least at this point, because Palestine has not yet ratified the Rome Statute.)

In terms of the Rome Statute’s legal requirements, I think that Comoros has indeed referred a situation to the Court. Article 14(1) speaks of situations in which “one or more crimes… appear to have been committed,” suggesting that even one crime can, in the right circumstances, qualify as a situation. (An attack with a nuclear or chemical weapon, for example.) The limited scope of the situation being referred by Comoros, therefore, should not legally disqualify the referral.

In short, the ICC does indeed have jurisdiction over the attack on the flotilla (and the later attack on the MV Rachel Corrie), so the OTP would be well within its rights to open a formal investigation into the attack. The real question is whether the OTP will open an investigation. A full answer is beyond the scope of this post, but I think it’s exceedingly unlikely. Although the limited scope of the referred situation is not legally disqualifying, I think it significantly reduces the situation’s overall gravity. To begin with, it is not clear whether any international crimes were committed on the MV Sofia or the MV Rachel Corrie (readers should feel free to weigh in), so the referred “situation” may, in practice, be limited to crimes allegedly committed on the MV Mavi Marmara. I don’t want to minimize the tragedy of nine civilian deaths, and I am no fan of determining gravity by simply counting victims, but I think the OTP would have a difficult time justifying a decision to prioritize the flotilla attack over many of the other situations it is considering, such as Colombia, Georgia, or Afghanistan.

Moreover, and more fundamentally, it does not seem sensible for the OTP to investigate one isolated component of the much larger conflict between Israel and Palestine. If the OTP ever does investigate that conflict — which, as I’ve discussed before, I don’t think it should — it needs to address all of the potential crimes, both Israeli and Palestinian. And that, I think, is the fatal flaw in the Comoros referral: it is essentially asking the OTP to investigate crimes committed by only one side of the conflict, Israel. Even if Israel’s account of the attack on the flotilla is correct and the IDF killed the civilians in self-defense, the ICC would still not have jurisdiction over the civilians’ actions — it is not a war crime to attack a soldier (though it could, of course, be a domestic crime).

Finally, a plea to the media: please do not overstate the importance of the OTP’s “decision” to open a preliminary examination into the attack on the flotilla. As the ICC’s press release notes, the OTP is required to conduct such an examination into every state referral, regardless of merit. I have no doubt that the OTP takes state referrals more seriously than referrals from individuals and human-rights groups. But that does not mean, nor does it even suggest, that the OTP will decide to open a formal investigation into the flotilla attack. Indeed, for all the reasons mentioned in this post, I think that is exceedingly unlikely.

Bangladesh Factory Safety Accord: Watershed Innovation in Global Governance?

by Peter Spiro

Here’s the text of the agreement described in reports in the NY Times and elsewhere today. It’s the most significant institutional response to the massive loss of life (now above a thousand dead) in the April Bangladesh factory collapse.

This may be a signal episode in the continuing evolution of global corporate regulation. Formally styled as the “Accord on Fire and Building Safety in Bangladesh,” the agreement is being executed by trade unions and corporations. It establishes a standing Steering Committee (three seats for unions and corporations each, one for a designee of the International Labour Organization) to police the agreement, which requires companies to undertake the inspection of Bangladesh supplier facilities and remediation as necessary. It also sets up a worker complaint mechanism, with binding arbitration under the New York Convention. NGOs appear to have some participatory standing as “witnesses” to the agreement.

H&M, Tesco, C&A, and Calvin Klein, among others, are on board. There is a midnight May 15 deadline – countdown and latest developments can be found at the UNI Global Union site. There has to be a lot of pressure on the big apparel manufacturers to sign on.

The template: a legal agreement between non-state parties facilitated and nominally hosted by an international organization. No governments involved, at least not as parties to the agreement. If it works, look for more of the same in other contexts. The ILO ‘s profile will surely rise in the face of this episode and the growing global awareness of worker rights issues.

Weekday News Wrap: Tuesday, May 14, 2013

by Jessica Dorsey

Seriously, ICC, Update Your Website

by Kevin Jon Heller

The ICC’s website is its public face. Scholars, activists, and interested laypeople — many who live in the situations under investigation — rely on it as their primary source of information about the Court’s activities. So it is imperative that the Court update its website in a timely fashion.

Time and again, however, it does not. Case in point: three new documents concerning decisions by the Libya Pre-Trial Chamber appeared for the first time today, May 13. One is dated April 24; one is dated April 26, and one is dated May 10. None is more than a few pages long, and fortunately none is particularly substantively important. But there is still no excuse — much less any justification — for making them publicly available so long after they were issued by the PTC.

Even more troubling, the April 26 document — granting a request by Ben Emmerson for leave to reply to a recent motion by Libya regarding al-Senussi — mentions that the Registrar was required to “provide a report on the status of the arrangements of the visit to Mr Al-Senussi by his Defence counsel by Friday, 3 May 2013.” That report is obviously critical, as Libya has long been lying about its efforts to arrange such a visit. According to the PTC’s decision, the Registrar’s report should have been submitted 10 days ago. Yet there is no trace of the report on the Court’s website.

The ICC always emphasizes the need for effective outreach. It should start by keeping its website up to date.

UPDATE: Mark Kersten agrees and adds additional important thoughts at Justice in Conflict.

Guest Post: Official Act Immunity-Keeping the Questions Straight

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.]

In Yousuf v. Samantar, the U.S. Court of Appeals for the Fourth Circuit held that a former Somali official was not entitled to official act immunity for alleged violations of jus cogens norms. In a recent post, Professor Ingrid Wuerth takes issue with that conclusion, arguing that state practice and ICJ jurisprudence establish that allegations of jus cogens violations “do not generally deprive conduct of its ‘official’ nature for immunity purposes.”

As I have previously explained, all immunity doctrines involve three basic questions: (1) who is covered, (2) what is covered, and (3) whether there is an exception. For example, head of state immunity (a status-based immunity) generally applies only to sitting heads of state, heads of government and foreign ministers, covers all acts (even purely private ones), and is not subject to a jus cogens exception. See Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3 (Feb. 14). On the other hand, official act immunity (a conduct-based immunity) applies to lower level officials and to former officials, covers only acts taken in an official capacity, and may or may not be subject to a jus cogens exception.

In a recent article, Pinochet’s Legacy Reassessed, 106 Am. J. Int’l L. 731 (2012), Ingrid looks exhaustively at the third question in the context of official act immunity, concluding that state practice does not support a jus cogens exception to such immunity. That conclusion may or may not be correct—recent state practice including Samantar and the decision of the Swiss Federal Criminal Court in Nezzar may cast some doubt—but I will assume for present purposes that it is correct. Ingrid’s AJIL article did not, however, focus the same attention on the question of what constitutes an official act to which immunity attaches in the first place. Instead, she simply assumed that the second and third questions were the same. See id. at 732 n.9. In her recent post and in an interesting article on the Nezzar case, Ingrid answers the “what acts” question by adopting what one might call the “atributability theory” of official act immunity—that any act attributable to the state for purposes of state responsibility must be deemed an “official act” for purposes of conduct-based immunity. The problem is that there is no general and consistent practice of states supporting that position.

That is not to say that there is no authority at all in support of the attributability theory. The former rapporteur of the ILC’s project on the immunity of state officials from foreign jurisdiction adopted this theory in paragraph 24 of his Second Report. But his assertion has proved very controversial at the ILC and is flatly contradicted by another final ILC report, the 2001 Draft Articles on State Responsibility, article 58 of which expressly states that…

Weekday News Wrap: Monday, May 13, 2013

by Jessica Dorsey

“Crossing Lines” Is Going to Be a Disaster…

by Kevin Jon Heller

Ever since my friends at Wronging Rights flagged the upcoming NBC series Crossing Lines, which is about an ICC police unit, I’ve been scouring the internet for more information about what will no doubt be an absolute train-wreck of a TV show. Tonight I found this:

Set in exotic locations around Europe, “Crossing Lines” follows a disgraced New York cop, played by William Fichtner, who finds redemption after joining an international police unit based at the Intl. Criminal Court in the Hague that investigates cross-border crimes and hunts down brutal criminals.


“Fans of procedural crime shows will feel very much at home with this new team, but at the same time, the global setting will add a color and flavor to the show that will take audiences on a new and exciting ride.

“Crime has gone global like everything else in our lives and now there is a weekly procedural that dives into this world. At the end of the day, we’re all frightened and concerned about the same things and problems no longer tend to stay regionally contained for too long anymore.”

The series will tackle topical crimes and illicit global trades such as plutonium poisonings, serial killings, kidnappings, human trafficking and drug smuggling, added Bauer.

Where to begin? First, the ICC doesn’t have a police force, international or otherwise. (Perhaps the show should have been set in the OTP — which at least has investigators.) Second, international crimes do not have to be transnational. (Which is the whole point of genocide and crimes against humanity.) Third, the ICC does not have jurisdiction over poisonings (except in armed conflict), serial killing (unless its like Srebrenica), kidnappings (unless they’re like during the Dirty War), or drug smuggling (sorry, Trinidad & Tobago). Fourth, and finally, it will be a very chilly day in the bad place when the ICC investigates a crime committed in Europe.

Other than that, the show sounds completely accurate.

Events and Announcements: May 12, 2013

by Jessica Dorsey

Calls for Papers

  • In cooperation with the International Criminal Tribunal for Rwanda, the University of Johannesburg, South Africa, is hosting a conference on the legacy of the ICTR. The organizers are currently calling for papers. A short abstract must reach mswart [at] uj [dot] ac [dot] za by May 24, 2013. More information on the conference is available here.
  • The University of Oslo is hosting a conference August 30-31, 2014 entitled: The Legitimacy and Effectiveness of International Criminal TribunalsPaper proposals should be e-mailed to c [dot] m [dot] bailliet [at] jus [dot] uio [dot] no by November 1, 2013, with an abstract no longer than 500 words.
  • The ILA Study Group on ‘Principles on the Engagement of Domestic Courts with International Law’ has issued a call for papers. Those selected will be invited to participate in the discussion of their papers by the Study Group, and will be potentially included in a relevant publication. The deadline for submission of proposals is the end of May. Full details can be found on theStudy Group’s website, and the call may be directly downloaded (pdf) here.

Upcoming Events

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

Ian Buruma Is A Great Historian, But Like Everyone Else, He Doesn’t Understand the Legal Issues in the Senkakus/Diaoyu Dispute

by Julian Ku

The WSJ Saturday edition has a long review essay by distinguished historian Ian Buruma providing some historical perspective on the close to hot Chinese-Japanese conflict over the Senkaku Islands. It is a fascinating essay, and I was particularly struck by his argument that the Senkaku issue was essentially ignored by Mao Zedong and Deng Xiaopoing, whereas today’s comparatively weaker Chinese leaders cannot afford to downplay it.

As a historian, Burama sees this conflict as driven almost entirely by nationalist forces in both China and Japan (but mostly China) for contemporary political reasons rather than for deepseated historical animosities.  This is a view that is worth keeping in mind.

But I have one quibble with Buruma’s narrative.  He first describes the Senkakus as part of the territorial booty acquired in Japan’s 1895 military victory over China.  But this is not the official Japanese view of how Japan acquired sovereignty over the Senkakus because everything that was acquired in 1895 (like Taiwan) was returned to China in the post-World War II settlement. Japan’s view is that the Senkakus had perhaps had been part of Okinawa, but at any rate, had never been part of China pre-1895.

Buruma later describes the Senkakus as part of Okinawa that was returned to Japan in 1971.  But now he adopts the Japanese view of the legal position, and rejects China’s view that the Senkakus were never part of Okinawa.  But the U.S. acknowledged that there was a difference between the two island entities when it returned both in 1971 to Japan.

This is not really to criticize Buruma, whose writing I admire.  Rather, it is to highlight just how confusing the legal background to this territorial dispute is. Even historians can’t keep the positions straight. How will we ever expect the politicians to do so.

An Unusual Dissenter from Kenya’s Bid to Shut Down the ICC

by Kevin Jon Heller

The Kenyan government has asked the Security Council to pass a resolution deferring the prosecution of Uhuru Kenyatta and William Ruto, the newly-elected President and Deputy President of Kenya. That’s not surprising; the Kenyan government has been doing everything in its power to undermine the ICC. What is surprising, though, is that Ruto has explicitly disavowed the request:

Through lawyer Karim Khan, Ruto says that the application neither represents government policy nor his personal wishes. In an interview with Capital FM News, Khan says that his client never had input in the application.

“His Excellency the Deputy President would like to dissociate himself with the application by ambassador Macharia Kamau as it does not represent his desire. He was never consulted in the making of the application and not in the presentation.

He said that Ruto who was sworn into office last month was committed to upholding the Constitution which included respect for independent institutions.

Khan said that President Uhuru Kenyatta – also indicted by the ICC – had also given his word on honoring international obligations.

Khan reiterated that the United Nations Security Council had no power to terminate proceedings saying that the ICC was an independent court. He said that it is only the ICC judges could make a decision on the termination of the cases or otherwise as the court, which he said had independent judges fully seized of the matter.

“The application is a distraction from the reality which is that no institution can interfere with the independence of the court. The judges have sworn an oath and they are the only ones who can make a decision on the matter,” he said.

He maintained that Ruto who had cooperated with the court since he was named among the suspects who have the greatest culpability in the 2007/08 post poll chaos will continue to cooperate with the court until he is vindicated.

Khan is wrong, of course, when he says that the Security Council cannot terminate the case. Article 16 of the Rome Statute gives the Security Council just that power — although it would have to pass a new deferral resolution each year, because Article 16 limits individual deferrals to 12-month increments.

That aside, Ruto’s statement raises some interesting questions. First, if Kenyatta agrees with Ruto, how can the “Kenyan government” be asking the Security Council to intervene? Reports indicate that the request was signed by Kenya’s ambassador to the UN — who presumably works for Kenyatta and Ruto. So it would seem that Kenyatta and Ruto would be well within their rights to withdraw the request. Does their failure to do so indicate that, in fact, Kenyatta and Ruto are not actually on the same page?

Second, why has Ruto disavowed the request? Color me skeptical that his opposition is motivated by a principled belief in the authority and legitimacy of international organizations. More likely, he simply believes that he is unlikely to be convicted — a not unreasonable assumption, given the many problems that have plagued, and continue to plague, the Kenya cases. If Ruto is confident of acquittal, his opposition to deferring the prosecution makes perfect sense: he will have much more freedom to operate as an acquitted war criminal than as an accused one. (See, e.g., Omar al-Bashir.)

We’ll see how this plays out.

UPDATE: Kenya’s Attorney General has now also disavowed the request. What is this, a UN Ambassador gone rogue?

Weekend Roundup: May 4-10, 2013

by An Hertogen

This week on Opinio Juris, the discussion of Kiobel continued with guest posts by Jordan Wells asking whether corporate liability is jurisdictional, and Anthony Colangelo arguing that Kiobel actually contradicts Morrison – the case on which it is supposedly based. Kevin asked whether the Al Shimari  v. CACI case could be a model for post-Kiobel ATS cases.

We also returned to last week‘s discussion of the decision by the Court of Appeals in Versailles on corporate liability for involvement in the construction of Jerusalem Light Rail, with an assessment of the case by Milena Sterio.

Another guest post this week was by Ingrid Wuerth on Yousuf v Samantar.

Peter argued that Ted Cruz’ birthplace isn’t a reason to oppose his nascent candidacy for the US Presidency and pointed out another Obama speech trying to reinvigorate the notion of citizenship.

Kevin discussed the finding of the Commission of Inquiry on Syria that the rebels, rather than the government, may have been responsible for deploying chemical weapons against civilians. Despite his past forays in reality TV, Kevin was still surprised by The President – a Palestinian TV show to (mock-)pick a new President.

Kristen discussed the transformation of the Permanent Court of Arbitration. She also drew our attention to a new case filed at the European Court of Human Rights, alleging that Poland violated its human rights obligations due to its involvement in the CIA’s black sites and the extraordinary rendition of Abu Zubaydah.

Ken predicted that autonomous cars could force us to dust off the 1949 Geneva Convention on Road Traffic, and discussed a new bill to be introduced to increase congressional oversight over kill-or-capture missions conducted by the US military outside of Afghanistan. Further on the war on terror, Chris recommended reading Harold Koh’s speech at Oxford Union.

Julian worried that China was playing a dangerous game floating claims about sovereignty over Okinawa.

Kristen posted a call for papers for the 2013 ASIL Research Forum, which she co-organizes. Other calls for papers can be found in our events and announcements. Finally, Jessica also provided you with weekday news wraps.

Have a nice weekend!

2013 ASIL Research Forum

by Kristen Boon

I am delighted to announce that Tim Meyer and I will be co-chairing the 2013 ASIL Research forum.   I hope many of our readers will send in abstracts for this terrific conference.  The deadline for proposals is June 14.  Here is the call:

The American Society of International Law calls for submissions of scholarly paper proposals for the ASIL Research Forum to be held during the Society’s Midyear Meeting at the New York University School of Law on November 1-3, 2013.

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

Interested participants should submit an abstract (no more than 500 words in length) summarizing the scholarly paper to be presented at the Forum. Papers can be on any topic related to international and transnational law and should be unpublished (for purposes of the call, publication to an electronic database such as SSRN is not considered publication).  Authors may only submit one proposal, although an author may be listed as a non-primary co-author on multiple proposals.  Interdisciplinary projects, empirical studies, and jointly authored papers are welcome. Member proposals should be submitted by Friday, June 14. Please click HERE to get started.

Proposals should include 1) the name, institutional affiliation, professional position, and contact information for the author(s), and 2) an abstract.  Review of the abstracts will be blind, and therefore abstracts should not include any identifying information about the author.  Abstracts containing identifying information will not be reviewed.   The Research Forum Committee will announce selections by July 25.

The Research Forum Committee will organize the selected paper proposals around common issues, themes, and approaches. Discussants, who will comment on the papers, will be assigned to each cluster of papers. All authors will be required to submit a draft paper 4 weeks before the Research Forum as a condition for participation.  Failure to submit a draft paper may result in disqualification.   Drafts will be posted on the Research Forum website.

Kiobel Insta-Symposium: Kiobel Contradicts Morrison

by Anthony Colangelo

[Anthony J. Colangelo is Associate Professor of Law at SMU Dedman School of Law.]

I explained in a previous post why I think extending the presumption against extraterritoriality to causes of action crafted by forum law is strange. But there may be another (bigger?) problem with Kiobel’s application of the presumption to the Alien Tort Statute—namely, it appears to contradict Morrison v. National Australia Bank—the very case on which Kiobel overwhelmingly relies for both its reasoning and its result. As readers will recall, Morrison applied the presumption against extraterritoriality to the principal antifraud provision of the Securities Exchange Act.

As the Court in Kiobel itself, as well as many commentators (myself included) have observed, the presumption against extraterritoriality has traditionally applied only to what are generally referred to as “conduct-regulating” rules. These are rules that govern primary conduct and are easily classified under the category of jurisdiction to prescribe or prescriptive jurisdiction. Yet as the Court in Kiobel also explained, the ATS “does not directly regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law.” Indeed the Court framed the relevant question under the ATS as “whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.” In short, the conduct-regulating rule under the statute comes from international law. And since international law applies everywhere, the presumption against extraterritoriality has no application to conduct-regulating rules of decision under the ATS. The Court appeared to accept this view, noted that the ATS was “strictly jurisdictional,” and then decided to apply the presumption anyway. In so doing, the Court explained that “to rebut the presumption, the ATS would need to evince a clear indication of extraterritoriality,” which the ATS failed to do.

Here’s the problem.   Continue Reading…

Is This the Model of a Viable Post-Kiobel ATS Lawsuit?

by Kevin Jon Heller

Baher Azmy, the legal director of the Center for Constitutional Rights (CCR), has flagged a very interesting ATS case that is due to be re-argued in light of the Supreme Court’s recent — and much discussed here at Opinio Juris — decision in Kiobel. Here is CCR’s description of the case, Al Shimari v. CACI:

Al Shimari  v. CACI was originally brought against L-3 Services Incorporated (formerly Titan Corporation), CACI International Inc., and Timothy Dugan, a former employee of CACI.  CACI and L-3 Services were the U.S. government contractors responsible for interrogation and translation services, respectively, at Abu Ghraib prison and other facilities in Iraq. L-3 Services and Timothy Dugan have since been dismissed as Defendants in the case. The complaint alleges that CACI directed and participated in illegal conduct, including torture, at the Abu Ghraib prison in Iraq where it was hired by the U.S. to provide interrogation services.   The four Plaintiffs had all been held at the “hard site” in Abu Ghraib prison.

The suit, brought under the Alien Tort Statute (ATS) and federal question jurisdiction, brings claims arising from violations of U.S. and international law including torture; cruel, inhuman, or degrading treatment; war crimes; assault and battery; sexual assault and battery; intentional infliction of emotional distress; negligent hiring and supervision; and negligent infliction of emotional distress. There are also civil conspiracy and aiding and abetting counts attached to most of these charges.  Through this action, Plaintiffs seek compensatory and punitive damages.

Among the heinous acts to which the four Plaintiffs were subjected at the hands of the Defendant and certain government co-conspirators were: electric shocks; repeated brutal beatings; sleep deprivation; sensory deprivation; forced nudity; stress positions; sexual assault; mock executions; humiliation; hooding; isolated detention; and prolonged hanging from the limbs.

All of the Plaintiffs are innocent Iraqis who were ultimately released without ever being charged with a crime. They all continue to suffer from physical and mental injuries caused by the torture and other abuse.

CCR makes a strong argument in the relevant brief that Al Shimari is precisely the rare ATS lawsuit that can survive Kiobel. First, CCR argues that Kiobel‘s presumption against extraterritorial application of the ATS should not even apply in Al Shimari, because the conduct in question occurred in Iraq during the US occupation, a period in which (quoting Rasul) the US had “complete jurisdiction and control” over Abu Ghraib (recall that the Coalition Provisional Authority had “all executive, legislative, and judicial authority” over Iraq at this time), making it effectively US territory. The fact that the US was functioning as the sovereign in Iraq at the time of the relevant conduct, CCR also points out, means that allowing the lawsuit to proceed would be unlikely to result in “international discord” between the US and Iraq.

Second, CCR argues that the relevant conduct does indeed “touch and concern” the US “with sufficient force to displace the presumption against extraterritorial application.” It notes that CACI is a US corporation headquartered in the US; that CACI’s immunity from Iraqi legal process made it subject to US law; and that the conduct in question was directed from the US. It also notes that the US’s control over Abu Ghraib is — or should be — relevant to the “touch and concern” analysis.

Third, and finally, CCR claims that ATS lawsuits involving war crimes and torture should always be deemed to satisfy Kiobel, especially where — as in Al Shimari — the perpetrators of those crimes are present in the US. It argues that the potential for “international discord” is minor in such lawsuits, because war crimes and torture are types of conduct that all states are obligated to prevent and punish.

I am skeptical that CCR’s third argument will convince many federal courts post-Kiobel. Its first and second arguments, however, seem very compelling. I hope our resident and extraterritorial experts on the ATS will weigh in.

US Congressional Bill to Be Introduced for New Kill-Capture Oversight

by Kenneth Anderson

Rep. Mac Thornberry (R-Texas), member of the US House of Representatives Armed Services Committee, plans to introduce a bill that would increase Congressional oversight over kill-capture operations conducted outside of Afghanistan by the US military.  Bobby Chesney discusses the proposed legislation over at Lawfare, and gives a section by section commentary.  Whether this is an important step or not depends on one’s starting point, of course; I agree with Bobby that it is a big deal and a welcome step – though if one’s view is that all these operations are unlawful, or that  they require judicial oversight, or something else, then you won’t be much moved.

Seen within the framework of US law and oversight of overseas use of force operations, however, this is an important step.  A couple of observations; see Bobby’s post for a detailed discussion.  First, this legislation is with respect to operations conducted by the US military; it does not cover CIA activities.  Second, it covers US military operations with respect to the lines of oversight running back to the Armed Services committees; it does not alter existing oversight processes of Congressional intelligence committees governing covert action as defined in US Code Title 50, but extends and increases oversight over military operations.  These limitations run to several different things.

Counterintuitive as many might find it, the CIA is subject to far greater oversight, and at a far higher level of government, in its conduct of Title 50 covert activities than the US military is in its conduct of armed operations under Title 10.  There are good reasons why the military is not subject to direct oversight in essentially tactical decision-making in its traditional military activities once a decision has been made to commit to the use of force.  These decisions have long been understood to be within the discretion and responsibility of commanders who have the expertise to carry them out.  Oversight through the Armed Services committees is robust, including its closed sessions, but is not considered the same as that which Title 50 requires for covert activities.  However, the expansion of the US military into clandestine activities – which might or might not meet the legal definition of “covert” under Title 50 and so trigger those oversight functions – has raised new questions as to whether Armed Services committees oversight, traditionally conceived for conventional conflicts, keeps Congress sufficiently informed and permits sufficiently timely oversight in the case of activities carried by JSOC. Continue Reading…

Guest Post: Immunity — Separation of Powers, Human Rights Cases, and Yousuf v. Samantar

by Ingrid Wuerth

[Ingrid Wuerth is Professor of Law and Director of International Legal Studies at Vanderbilt University Law School.  You can reach her at:  Ingrid [dot] wuerth [at] vanderbilt [dot] edu.]

This post examines two aspects of the Fourth Circuit’s 2012 decision on remand in Yousuf v. Samantar.  Samantar has petitioned the Supreme Court for certiorari again, and the initial briefing on the cert. petition should conclude soon.  Now is accordingly an opportune time to examine the Fourth Circuit’s decision, which has attracted excellent blog commentary from John Bellinger and Curt Bradley at Lawfare and Bill Dodge here.  A Swiss criminal case against Khaled Nezzar raising some related issues is discussed by Gabriella Citrone at EJILTalk! and by Evelyne Schmid at intlawgrrls.

This post disagrees with some of the foregoing commentary, but it also endeavors to point readers to at least some of the arguments and scholarship on all sides of the debate.  It will not introduce the Samantar case or the basics of immunity, which have been discussed by other bloggers and here. This post discusses the role of executive immunity determination in U.S. litigation and some aspects of conduct based immunity (ratione materiae) before foreign national courts for alleged jus cogens violations.

  1.  The Executive Branch and Immunity

The Fourth Circuit reasoned that with respect to head of state immunity the executive branch is entitled to absolute deference, but it receives only “substantial weight” for its determinations on conduct-based immunity. 699 F.3d at 772-73.   The executive branch has argued here (as in other cases) that for both kinds of immunity its determinations are binding on the courts, based in part on admiralty cases from the 1940’s.  Affording the government the power to control the outcome of litigation in federal court is in tension with Article III and inconsistent with many foreign relations cases in which the government is given little or no deference, including another area of federal common law:  the act of state doctrine. One potential basis for power to make determinations binding on the federal courts, however, is the President’s constitutional power to “receive Ambassadors and other public Ministers” which includes the power to recognize foreign heads of state.   The Fourth Circuit concluded that the President’s recognition power includes the power to make dispositive determinations of status but not conduct based immunity.    The court’s decision on conduct-based immunity is very significant and clearly right, I believe, for reasons set out here.

The Fourth Circuit’s conclusion that the executive does control status-based determination is wrong, in my view, despite the arguments by Chimene Keitner and Lewis Yelin.  The recognition power is a weak basis upon which to rest a general power over immunity because they are two very different determinations.  Recognition includes…

Weekday News Wrap: Thursday, May 9, 2013

by Jessica Dorsey

Does China Also Have a Territorial Claim to Okinawa? Not Really, But It is a Good Way to Freak Out Japan

by Julian Ku

An article in China’s leading state-run paper, the People’s Daily, suggesting that the time may be ripe to reopen the question of Japanese sovereignty over Okinawa has already sparked sharp reactions.  The WSJ’s blog on China picked up the story, as did this Business Insider post, headlined: “China Now Says It May Own Okinawa, Too.” Other even more lurid headlines: “China Demands Japan Cede Sovereignty Over U.S. Military Base Okinawa.” have popped up all over the internet.  As there is a massive U.S. military presence on Okinawa, this issue will likely draw more attention here in the States.  The idea had already been mooted last July, as this article notes. The Chinese foreign ministry has already been asked about this, and failed to clarify matters much, leading to more heated reactions in Japan.

I think all of this might be a bit of an overreaction (perhaps an overreaction that the Chinese actually were hoping for).

The argument about Okinawa was raised as part of the larger argument about the sovereignty over the much disputed Senkaku/Diaoyu Islands in the East China Sea.  Okinawa, also known as the largest of the Ryukyu Islands, was historically treated as a vassal kingdom by both China and Japan.  Its status, like that of the nearby Diaoyu Islands, was never entirely settled during much of the nineteenth century.

The Okinawa discussion was part of the article’s attempt to rebut the Japanese claim that the Diaoyu/Senkaku islands were historically part of the Okinawa/Ryukyu kingdom, and since Okinawa is now part of Japan, the Diaoyu/Senkaku are as well.  The article’s position is that the Diaoyu/Senkakus were always considered part of Taiwan, and hence part of China.

To fully push back on the Okinawa point, the article raises questions about the Japanese claim to Okinawa.  This is not exactly new, since Okinawan independence activists have raised the same arguments. I think Okinawa is today similar to Puerto Rico, and it is largely a self-determination question rather than a historical title question.

But what makes everyone nervous, however, is the idea that Okinawa’s previous status as a vassal state to the Chinese Empire gives China some sovereignty claims to Okinawa as well. This idea is deeply troubling, since at various times Korea, Vietnam, and other states have arguably had that relationship with China.  It has little basis in contemporary international law, as far as I can tell.  So I think this idea needs to be firmly rejected, and I have little doubt that countries like Korea, Vietnam, etc. are going reject it.

But the article is not really focused on establishing the vassal state theory of sovereignty (Now that would be quite an article). Most of the article is about the Diaoyu/Senkakus.  The Okinawa argument is only meant to further weaken Japan’s arguments for sovereignty over the Diaoyu/Senkakus.  If Japanese sovereignty over Okinawa is uncertain or at least less than perfect, than its claim to the Diaoyu/Senkakus is weakened as well.  But the article doesn’t flesh out, nor does it need to, actually establish China’s own claim to Okinawa in order to question Japan’s claim.

I don’t think the Chinese government will be making any moves on Okinawa any time soon. But it is useful for the Chinese to float such ideas, so that they can gracefully back down and “settle” for the Diaoyu/Senkakus one day.  A dangerous game to play, unfortunately, and one that may backfire if it continues to foster anti-Chinese Japanese nationalism.



Harold Koh’s Speech at the Oxford Union

by Chris Borgen

Former State Department Legal Adviser Harold Koh spoke yesterday at the Oxford Union. His speech, “How to End the Forever War?” (link to .pdf) is a reflection on the Obama Administration’s  foreign policy, in particular in regards to the rule of law.  It is also a talk set to contrast the Obama Administration’s approach to international law and foreign policy from the Bush Administration’s. He opens in this way:

Now that I have returned to the academy, I tend to hear three common misperceptions from friends on both the left and the right: first, that what some call the Global War on Terror has become a perpetual state of affairs; second, that “the Obama approach to that conflict has become just like the Bush approach;” and third, that we have no available strategy to bring this conflict to an end in the near future. Tonight, let me reject all three propositions.

Let me ask what the real question is that faces us, suggest the right approach to addressing it, and outline three elements of an answer. In a nutshell, our question should be: “How to End the Forever War?” Our Approach should be what I would call: “Translate, not Black Hole.” And our three-part answer should be: “(1) Disengage from Afghanistan, (2) Close Guantanamo, and (3) Discipline Drones.”

This speech is a sort of book-end with former Department of Defense General Counsel Jeh Johnson’s recent speech (also at the Oxford Union) that mentioned there will come a time when we transition from looking at this as an armed conflict against an organized enemy to a counter-terrorism effort against individuals. Koh’s speech extends this theme, giving his perspectives on how to get to that tipping point. Well worth the read.

Guest Post: French Companies May Build in the West Bank — An Assessment of the Versailles Court of Appeals Case

by Milena Sterio

[Milena Sterio holds a dual J.D./maitrise en droit degree, and she is Associate Professor of Law at the Cleveland-Marshall College of Law, where she specializes in International Law and International Criminal Law.]

The Court of Appeal of Versailles, France, ruled last week on an important case regarding the civil liability of French companies for their role in the construction of a light rail tramway system in the Israeli-controlled West Bank.  The Versailles Court determined that the French companies’ participation in this construction project did not violate international law.  As this case has already sparked academic debate in the blogosphere (click here for excellent posts by Eugene Kontorovich and by Kevin Jon Heller), I will take this opportunity to discuss in more detail some of the legal issues involved, as well as to weigh in on the significance of the Versailles Court’s ruling.

The Jerusalem light rail system began operating in August 2011.  A French building conglomerate, Alstom Transport (as well as another company, called Veolia Transport; for the purposes of this post, I will refer to both of these as “Alstom” or “Alstom Transport” because the court’s discussion of legal issues and its ultimate ruling concerns both of these companies equally), had participated in the light rail’s construction, despite protests and political opposition to such participation in France.  The transaction, relevant for the purposes of the legal discussion below, was structured as follows: Alstom had formed an Israeli company, called Citypass, which then signed a general concession contract with the State of Israel.  Additionally, Alstom signed a series of separate construction contracts with Citypass.  Alstom was thus not a party to the general concession contract.  A pro-Palestinian group, Association France Palestine Solidarité (AFPS), filed a lawsuit against Alstom Transport in 2007 in a French lower court (Tribunal de Grande Instance de Nanterre); another pro-Palestinian organization, l’Organisation de Libération de la Palestine (OLP), later joined the lawsuit as co-plaintiff.

Plaintiffs argued that the French court should void Alstom’s construction contracts, because the general concession contract’s (between Citypass and Israel) object or purpose (“cause” in French) was illicit (because the State of Israel’s true motivation in the construction project was…

Kiobel Insta-Symposium: Is Corporate Liability Jurisdictional?

by Jordan Wells

[Jordan Wells is a third-year law student at New York University School of Law.]

The discussion up to this point naturally has centered on the “touch and concern” language of the majority opinion and what that opinion and the concurrences mean for ATS cases involving law of nations violations that occur abroad.  Relatively little analysis has focused on the original questions on which the Supreme Court granted certiorari—namely, whether corporations are immune from suit under the ATS and whether that immunity is an issue of subject matter jurisdiction or an inquiry going to the merits.  Remember, the Second Circuit dismissed the case sua sponte based on these two premises.  In contrast, the D.C., Seventh, Ninth, and Eleventh Circuits have rejected corporate immunity under the ATS.

While many commentators quickly observed that the Court did not explicitly rule on corporate liability, the majority opinion at least tacitly assumes the existence of corporate liability.  As specific evidence of the Court’s recognition of corporate liability, some have pointed to one of the majority opinion’s concluding lines:  “Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.”  This sentence was quoted with approval in Justice Breyer’s concurrence.  The statement that a corporation’s mere presence does not suffice suggests that the inverse proposition is also likely to be true:  A corporation that is more than merely present in the United States – say, one that is domiciled in the United States or one that authorizes or ratifies a law-of-nations violation – could present a different case.  It would be pointless to draw this distinction unless, under some circumstances, the ATS countenanced corporate liability.

Whatever one’s take on corporate liability following Kiobel, I want to suggest that it probably is not an issue of subject matter jurisdiction (SMJ).  Although the Second Circuit’s dismissal was for lack of SMJ, and although the Supreme Court “affirmed” the judgment of the Second Circuit, it explicitly did so on other grounds. If those other grounds were non-jurisdictional, instead going to the merits, then the Court necessarily found SMJ.  See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83.  The question thus is whether the Supreme Court’s affirmance constituted a dismissal for lack of SMJ, or instead was a dismissal on the merits.

Contextual clues in the Chief Justice’s opinion—in particular, the application of the presumption against extraterritoriality (PAE)—indicate that the Court went beyond the issue of SMJ and reached aspects of the merits.  The Court concluded that “[o]n these facts,” the PAE barred relief in this case.  There are certain limited circumstances in which a federal court may dismiss on the basis of threshold issues before ascertaining its SMJ, see, e.g.Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (2007) (dismissal on ground of forum non conveniens), Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) (dismissal on grounds of personal jurisdiction), but the Supreme Court generally has treated the application of the PAE as going to the merits.  See, e.g.Morrison v. Nat’l Australia Bank Ltd., 130 S. Ct. 2869, 2877 (2010) (“[T]o ask what conduct § 10(b) reaches is to ask what conduct § 10(b) prohibits, which is a merits question.”); c.f. Burks v. Lasker, 441 U.S. 471, 476 (1979) (“[W]hether a cause of action exists is not a question of jurisdiction.”).  The Kiobel majority opinion does not depart from this understanding of the presumption’s application. See slip. op. at 5 (citing Morrison for proposition that “question of extraterritorial application was a ‘merits question,’ not a question of jurisdiction”).  The Court therefore appears to have dismissed the case on the merits, not for lack of SMJ.[1]

The fact that the ATS is “strictly jurisdictional” appears not to transform application of the PAE into a jurisdictional inquiry.  Although the Court does not use…

Weekday News Wrap: Wednesday, May 8, 2013

by Jessica Dorsey

Obama Not Giving Up On The New American Citizenship

by Peter Spiro

When I was writing my book on citizenship several years ago, I wanted to take on what I thought was a standard trope of American political discourse: “the rights and obligations of citizenship.” Though it hardly seemed like an alien phrase, I had trouble finding good examples of its use by major political leaders.

I won’t have that problem any more.

President Obama is now turning to “citizenship” almost like a drum beat. He played a citizenship theme in his Convention acceptance speech in September, his second inaugural inaugural address in January, and the State of the Union in February. He returned to citizenship in perhaps the biggest way yet in his commencement speech at Ohio State this past Sunday. The speech highlighted all the great things that graduates would go forth and do (work for the Peace Corps, start companies, “otherwise realize your vision”):

There is a word for this. It’s citizenship. And we don’t always talk about this idea much these days — citizenship — let alone celebrate it. Sometimes, we see it as a virtue from another time, a distant past, one that’s slipping from a society that celebrates individual ambition above all else; a society awash in instant technology that empowers us to leverage our skills and talents like never before, but just as easily allows us to retreat from the world  And the result is that we sometimes forget the larger bonds we share as one American family.

With citizenship as the rallying call, he exhorted the graduates to educate more children, build better roads, work to confront climate change, protect kids from gun violence, etc. “[T]hat’s what citizenship is. It’s at the heart of our founding — that as Americans, we are blessed with God-given talents and inalienable rights, but with those rights come responsibilities — to ourselves, and to one another, and to future generations.”

Am I the only one picking up on the theme? Obama makes clear that he intends more than a throwaway use of the term:

I’ve been thinking a lot lately about how we can keep this idea of citizenship in its fullest sense alive at the national level — not just on Election Day, not just in times of tragedy, but all the days in between. And perhaps because I spend a lot of time in Washington, I’m obsessed with this issue because that sense of citizenship is so sorely needed there.

Sounds pretty personal. But I have yet to see even an op-ed piece which lands on citizenship as an emerging focal point for this Adminsitration.

Maybe that’s because he doesn’t have a lot to work with. Certainly not in Washington. But maybe not even with youngsters on college campuses. At least 10% of students at OSU Obama addressed yesterday aren’t citizens at all, or at least not American citizens. His invocation (for example) of “a deep devotion to this country that we love” couldn’t really work for them. The orientation starts to seem a little anachronistic to the extent that an audience consisting solely of Americans alone is an increasingly rare phenomenon. The group is no longer clearly bounded. For that and other reasons, what might in some other time have worked as “The New Citizenship” is unlikely to fly today.

ECHR Case Filed on Extraordinary Rendition

by Kristen Boon

Another extraordinary rendition case has been launched in the European Court of Human Rights (ECHR) that will be relevant to those following Guantanamo detainees:  Abu Zubaydah v Poland involves the CIA’s black sites. The filings are available here.  A press release by Interrights, co-counsel (with Joseph Margulies and the Polish firm Jankowski & Co.) describes the significance of the case as follows:

The case is of interest because the complaint alleges that, through both its acts as well as omissions – including by agreeing to house the secret detention centre, turning a blind eye to normal protections and oversight, and otherwise participating in and facilitating the extraordinary rendition of Abu Zubaydah into and out of Poland – the Polish authorities are responsible for multiple violations of Abu Zubaydah’s rights.
This case is also important because it is the most significant (and potentially only) European investigation into black sites underway.   The decision may help to shape the investigation, particularly because it focuses on the benchmarks for effective review. It follows El-Masri (decided by the ECHR in December 2012).  Related cases, Abu Zubaydah v Lithuaniaal Nashiri v Poland, and al Nashiri v Romania, are still pending before the ECHR.
Abu Zubaydah is a stateless Palestinian born in Saudi Arabia who was transferred to Guantanamo Bay in 2006 and remains in indefinite detention.   He has not been charged with a crime by a military commission or court.

There Are Lots of Reasons to Oppose Ted Cruz for President. His Birthplace Isn’t One of Them.

by Peter Spiro

Ted Cruz is running for president, and an election-addled media is training its sights on his nascent candidacy in the absence of many alternatives this early in the cycle.

His birth outside the United States is inevitably raising the eligibility question. Cruz was born in Calgary to a US-citizen mother and a non-citizen father. Under section 301(g) of the Nationality Act, his mother had satisfied the requisite residency period for citizenship to descend by parentage. Ted Cruz was a citizen at birth.

That pretty clears works to satisfy the requirement that the President be a “natural born” citizen. Some argue that “natural born” means born within the territory of the United States – ie, a citizen under the Fourteenth Amendment. But John McCain’s candidacy put that line to rest, since Canal Zone-born McCain had citizenship only by statute (it’s not even clear that he had it at birth, as Jack Chin nicely argued here). Nobody seriously asserted his ineligibility. George Romney’s 1968 run supplies a less well-developed precedent, Romney having been born in Mexico to US-citizen parents.

That doesn’t mean we won’t get some birthers coming out of the woodwork, though they’ll probably be of the left-wing, tongue-in-cheek variety (see 4:30 in this Jon Stewart takedown, for example). Tea Party chickens may come home to roost as their claims of Obama’s ineligibility (including by virtue of his non-citizen father, not just his imaginary birth in Kenya) are turned back against them. But it would be too against-type for Democrats to press the line aggressively vis-a-vis Cruz (who, by the way, probably counts as a Canadian citizen as well as an American one).

That doesn’t mean we won’t get closer cases in the future (say, involving an adopted foreign-born child) or a strong candidate who was naturalized and thus not “natural born” under any possible interpretation. As post-globalization generations mature, better just to get rid of the requirement altogether.

Weekday News Wrap: Tuesday, May 7, 2013

by Jessica Dorsey

The Transformation of the Permanent Court of Arbitration

by Kristen Boon

The Permanent Court of Arbitration (PCA) recently released its 2012 annual report, which documents its remarkable institutional transformation. Established in 1899, the PCA is an intergovernmental organization based in the Peace Palace in The Hague.  Although it has a long and interesting history, including housing the Iran – U.S. Claims Tribunal for a number of years, over the last 12 years the PCA has seen its workload and subject matter scope increase exponentially.  As Secretary General of the PCA, Hugo Siblesz, noted in a speech in February:

“As of this moment, the PCA is acting to administer 71 pending cases, including 5 inter-State arbitrations, 48 arbitrations under bilateral or multilateral investment treaties, and 18 arbitrations in contract disputes involving States, State entities, or international organizations. In total, 152 arbitrations have been brought to the PCA in the past 12 years, in comparison with only 34 cases administered in the first one hundred years of the organization. In inter-State arbitration, the PCA has recently seen more activity than at any other point in its history – including the flush of arbitrations brought to the PCA in its early days before the First World War. And in disputes between States and private parties, the PCA has now handled more arbitrations under the UNCITRAL Rules than any other institution, developing in the process a singular experience in the application of those Rules.”

There was an extremely interesting panel on the PCA organized by ASIL in February, focusing on the PCA’s reinvention.  The PCA is an active and multi-faceted institution that acts as a registry and/or appointing authority in a range of international law issues, including public international law disputes, investor-state arbitrations, commercial contract disputes, law of the sea arbitrations under Annex VII of UNCLOS, and energy charter treaty disputes.  It has even administered an arbitration between a State and an armed movement within its territory (namely the Abyei Arbitration between the Government of Sudan and the Sudan People’s Liberation Movement/Army in 2008 – 9).

One institutional feature of note is that PCA offers a development assistance fund for states that require financial aid for use of PCA’s services.  Member states donate to the fund, and the 2012 report  notes 8 states – 5 from Africa, 2 from Asia and 1 from Latin America have received assistance thus far.  In addition, the PCA has just adopted new procedural rules for disputes involving at least one State, state-controlled entity, or international organization.    An interesting addition here is Article 34(7) which requires states to report on execution of the award, in an attempt to improve compliance.

Amb. Siblesz noted that dispute resolution in international matters is on the upswing generally, which is a trend to note in terms of the field generally.  Nonetheless, one aspect of the PCA’s comparative success in attracting cases appears to be its ability to provide high quality, quick, and confidential services, in a range of international law matters.  Thus in terms of lessons to be learned, generality rather than speciality appears to be aiding the PCA in its competitive bid.  Its general successes are also leading some to speculate whether it could assist the UN on a more permanent basis with regards to mediation and arbitration of international matters.  Thus, for example, might the PCA be used by the UN as a go-to institution for international dispute resolution generally, perhaps supplementing or even replacing in certain cases, the usual system of special envoys and representatives?


Weekday News Wrap: Monday, May 6, 2013

by Jessica Dorsey

Chemical Weapons Used in Syria — By the Rebels…

by Kevin Jon Heller

This according to the Commission of Inquiry on Syria, which has considerable investigative ability. Reuters:

(Reuters) – U.N. human rights investigators have gathered testimony from casualties of Syria’s civil war and medical staff indicating that rebel forces have used the nerve agent sarin, one of the lead investigators said on Sunday.

The United Nations independent commission of inquiry on Syria has not yet seen evidence of government forces having used chemical weapons, which are banned under international law, said commission member Carla Del Ponte.

“Our investigators have been in neighboring countries interviewing victims, doctors and field hospitals and, according to their report of last week which I have seen, there are strong, concrete suspicions but not yet incontrovertible proof of the use of sarin gas, from the way the victims were treated,” Del Ponte said in an interview with Swiss-Italian television.

“This was use on the part of the opposition, the rebels, not by the government authorities,” she added, speaking in Italian.

Recent news reports indicate that the Obama administration has been rethinking its opposition to arming the Syrian rebels. The Commission’s revelations, if true, not only complicate that idea but also deprive those who (in my view misguidedly) want to invoke the responsibility to protect to justify military intervention in Syria of one of their most potent rhetorical weapons. It’s easy to justify intervening in a civil war when one side is “good” and the other is “bad.” The situation is much more complicated, however, when a civil war involves two bad sides, even if one side — here, clearly the Syrian government — is worse than the other.

PS. As Ty McCormick points out at, the Commission’s findings would seem to validate Obama’s unwillingness to conclude — as demanded by the British, French, and Israelis — that the Syrian government has been responsible for using chemical weapons.

The 1949 Geneva Convention You Probably Haven’t Heard Of

by Kenneth Anderson

It’s the 1949 Geneva Convention on Road Traffic (text at p. 3 of pdf; here’s the UN treaty collection history, signatories, reservations, etc.; here is the Wikisource text of the treaty, which on quick read is accurate) which seeks to promote road safety by establishing uniform rules across borders.  This includes provisions for an international driving permit as well as for cross border recognition of foreign drivers licenses (Florida got itself into problems earlier in 2013 when it issued new regulations requiring foreign drivers, including Canadians, to hold a valid international driving permit; it quickly reversed course). There are later treaties, particularly the 1968 Vienna Convention on Road Traffic, which replaces the 1949 Geneva Convention for contracting states, but it has only 70 ratifications, and the US is not among them, though it is party to the 1949 agreement.

The 1949 Geneva Convention on Road Traffic as well as later agreements on automobiles, licensing, road rules, etc., are probably going to come under greater scrutiny in the next few years on account of the rise of autonomous, self-driving vehicles – the famous Google cars.  As Bryant Walker Smith of Stanford’s Center for Internet and Society notes in a report last November, “Automated Vehicles Are Probably Legal in the United States,” the 1949 convention provides, at Article 8, that every vehicle have a driver who is “at all times … able to control” it.  Smith says in the report that this requirement is likely satisfied if a human is “on the loop” – i.e., able to intervene in the automated vehicle’s operation.  That will likely work as a solution for some period, but the real value of autonomous cars is supposed to eventually be, not when they have a driver ready, alert, and able to take the wheel from the computer, but instead when they are transporting people who can’t or shouldn’t drive: the elderly and infirm, children, and … inebriated undergraduates.

Events and Announcements: May 5, 2013

by An Hertogen

Calls for Papers

  • The Editorial Team of the Latin American Journal of International Trade Law (LATAM Journal) is currently considering manuscripts for publication in Volume 1 Issue 2. The Journal welcomes contributions in English and/or Spanish on the various aspects of International Economic Law and International Commercial Arbitration. For the criterion on the submission of contributions, please visit our website. The deadline for submissions is July 31, 2013. The team is also pleased to announce that the inaugural issue is available online for free.

Upcoming Events

  • The 2013 ILA-ASIL Asia-Pacific Research Forum will take place in Taipei, Taiwan on May 15-16, 2013. The program is available here. Questions can be directed to Professor Pasha Hsieh, Research Forum co-organizer.
  • The Canadian Bar Association’s International Law Section is organizing its 2013 International Law Conference on Friday June 7th in Ottawa.  The title of this year’s conference is: Emerging Issues in International Corporate Social Responsibility, Corruption and Compliance. Registration is available here.
  • The Kwantlen Institute for Transborder Studies (ITS) and Political Science Department, the Non-State Actor Committee of the International Law Association, International Law Association – Canada, the Leuven Centre for Global Governance Studies, and the Flemish Fund for Scientific Research Belgium are organizing a joint conference on Non-State Actor Responsibilities: Empirical Findings and Theoretical Considerations in Vancouver on June 26-28, 2013. A programme and more 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.

We Should Try This in the U.S. (Minus Donald Trump, Of Course)

by Kevin Jon Heller

I’ve seen some strange reality TV in my time, but (mock) picking the next Palestinian head of state?

The hit show, called simply The President, has grown out of widespread frustration among Palestinians at their own moribund politics in the real world.

The current president of the Palestinian Authority, Mahmoud Abbas, remains in office four years after his mandate expired.

His party, Fatah, rules over the West Bank while in Gaza, Hamas, the Islamist movement labelled a terrorist organisation by many countries in the West, reigns – also years beyond the mandate it won in 2006.

The Palestinian assembly hasn’t met for many months. The roster of leaders hasn’t changed for decades.

Part Apprentice part X-Factor, viewers are gripped by a show in which they get to chose who should be their next president.

Enter Raed Othman, the director general of the Ma’an broadcast network.

“I thought of this programme because we have to show that the Palestinian people understand and want real democracy. We want elections – real elections. But if we cannot have them then we can do our own,” he said backstage during the filming of the latest episode of his show which has whittled 1,200 potential presidents to 16.

He added:  “There are a lot of people who say we don’t have leaders, so we need to prove to them that there are a lot of leaders in Palestine. We want to teach the people that democracy is possible whenever we want”.

Contestants are filmed taking on tasks – being an ambassador to a European country for a day, running a major corporation, taking questions from foreign and local journalists, even how to inspect guards of honour.

They are then put through the ringer by a panel of judges, among them leading politicians like Hannan Ashrawi, a former spokeswoman for the Arab League. Viewers combine votes sent in by text message with the judges’ marks in early rounds.

The winner doesn’t actually become President; he or she just gets a car. Then again, considering the sorry state of Palestinian politics, that’s probably a more desirable outcome.

Weekend Roundup: April 27 – May 3, 2013

by An Hertogen

This week on Opinio Juris, the debate on Kiobel continued. Katherine Florey pointed out how the decision will deepen the divide between state and federal approaches to extraterritoriality issues. Ken Anderson argued that the ATS should be understood as the “law of the hegemon”. Peter agreed with Samuel Moyn that more attention to corporate social responsibility regulation could potentially have a broader impact in improving human rights than high profile ATS cases. Corporate social responsibility was also central to Peter’s post on the impact of recent tragedies in the Bangladesh garment industry on voluntary corporate codes.

Eugene Kontorovich wrote a guest post on the recent decision of a French Court of Appeals rejecting claims that the contract between Alstom Transport and the State of Israel for the construction of the Jerusalem Light Rail was illegal due to a violation of international law. Disagreeing with Eugene, Kevin pointed out that the Court of Appeal is silent about the possibility of a war crime under the Rome Statute.

On another controversial dispute involving a big corporation, Roger wrote about an Ontario Court’s decision to dismiss the Ecuadorian plaintiffs’ efforts to enforce the Ecuadorian judgment against Chevron Canada.

In news from international courts, Julian was surprised by reports about the ICJ Registrar calling the Bolivia’s application against Colombia “impeccable“, since he thought Bolivia’s case was ridiculously weak. Should the case reach the merits and go against Colombia, chances are though that we’ll end up with Colombian complaints about biased judges after the conclusion of the case, as it did for the recent decision in its case against Nicaragua.

Turning to the ICC, Kevin was troubled by Judge van den Wyngaert’s decision to withdraw from the ICC’s Uhuru Kenyatta case, and followed up with further thoughts. He also congratulated Leiden for winning the ICC Moot Court.

In other posts, Julian pointed out how China is now also pushing the boundary with India, and  asked whether force feeding of detainees on a hunger strike is always illegal. Kevin noted with horror a quote from Ari Fleischer on the difference between Nazis and terrorists, and recommended Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists

As always, we provided news wraps and a list of events and announcements. Many thanks to all our “younger” readers for the many New Voices abstracts. It’s wonderful to see such a great response! Jessica and I are working through the submissions and plan to finalize the selection by mid-May.

Have a nice weekend!

Quote of the Day — Ari Fleischer Version

by Kevin Jon Heller

Ari Fleischer, former Bush press secretary, explaining why terrorists are more dangerous than Nazis:

They [the Nazis] followed the law of war. They wore uniforms and they fought us on battlefields. These people are fundamentally, totally by design different. And they need to be treated in a different extrajudicial system.

Noted with horror but without comment.

International Law, Law of the Hegemon, the ATS, and Kiobel

by Kenneth Anderson

Peter beat me to the punch in commenting on Samuel Moyn’s interesting take on the ATS and Kiobel in Foreign Affairs, but I’m going to add a somewhat different point from Peter’s about what the body of ATS law has meant over the past few decades. I didn’t intervene in the earlier discussion about Kiobel because that discussion seemed to me properly focused mostly on the internal legal aspects of the decision – everything from jurisdiction to state courts, and much else besides.  I want to raise something external to Kiobel and the ATS as “law” – the distinction between international law and what (in various postings here and there) I’ve referred to as the “law of the hegemon.”

One way of looking at the ATS, including the body of cases built up over the years, is that it is “international law.”  Of course that’s not literally true; it is a domestic statute that refers to international law as the basis of some form of liability; violations of treaties or the law of nations.  But in a broader sense – the sense in which its supporters have long seen it – the ATS offers a domestic law vehicle by which to work out, interpret, express and, perhaps most important, make effective the requirements of international law.

This is surely the sense that, for example, Judge Jack Weinstein had when he opened the ATS hearing in the Agent Orange case ten years ago – this court sits, he said, in some fashion as an international court.  Sitting in the courtroom, it was entirely plain that he both took seriously and took real pleasure in seeing this District Court as sitting in judgment on the same types of crimes as raised at Nuremberg. There are several practical problems for this broader view, of course – how to figure out the relationship between the domestic law piece of the statute and the international law piece, for one.

Another, however, is that if this is supposed to be the working out in some broad sense of “international law” in American courts and using the tools available to American law, how does one keep the link between international law and its sources, processes, standards of interpretation, etc., as they exist in the international arena – and the application of this in an American law setting that has its own sources of authority, standards of interpretation, etc.  It’s fine to say that the ATS is the working out of international law in US courts, but international law is made in the international framework and evolves according to things that are different from and quite alien to the American legal system.  A telling example of the problem is found simply in the status of US court cases interpreting the ATS and, in the process, interpreting features of international law in ways that bear little relationship to how the international community might do it, now or in the future.  Yet in an American domestic law system, those distinctively US cases have greater authority than the international authorities.

One can say that this is precisely the problem of the American court system in dealing with human rights cases; it ought to recognize the international law sources and authorities as such, rather than privileging its own processes.  But this is hard, given that plaintiffs want simultaneously to reach to the special features of the US litigation system to achieve their aims; those special features of the US litigation system include many things, such as civil liability, corporate liability, etc., that don’t obviously exist in the international system.  It isn’t likely that one can pick and choose in the most favorable way – whether one is the plaintiff or the defendant – and if you go with the American system, you take its doctrine of sources, methods of interpretation, and much else besides, even as it applies to international law questions.  But those don’t match up very well with how the “international” actors in international law see those fundamental questions.  The questions are not substantive or procedural in the usual sense – they are, rather, the fundamental doctrines of authority, precedent, methods of interpretation.

A better way of seeing the law of the ATS, it has long seemed to me, is to treat it not as a particular state’s working out of international law in its courts, but rather a quite different category.  It seems to me best understood as the hegemonic power working out the law of the hegemon in ways that are intended to be somewhat parallel to “international law” on these issues.  There is a shared impulse rooted in morality, but what the hegemon does is within the terms of its own legal system.  It depends in large part upon the extent to which the hegemonic power is willing to allow the capital of its power to be exercised roughly to these ends – and the extent to which other important actors are willing to go along as a sort of rough way of getting international law actually enforced. Continue Reading…

Sore Loser? Colombia’s Unpersuasive Accusations Against the Chinese ICJ Judge

by Julian Ku

ABC’s Univision reports on this op-ed by former Colombian foreign secretary and former vice justice minister, which seems to accuse shadowy Chinese business interests of influencing the recent ICJ decision in Nicaragua v. Colombia.  Here is the crux of the alleged wrongdoing (or at least shady conduct):

…in November 2012, the ICJ issued a ruling that certified that most of the contended area belonged to Colombia. Nicaragua however, was awarded an area of nearly 7,500 square kilometer.

Nicaragua needed part of the awarded area to be able to build the massive inter-oceanic canal the government is envisioning, according to Sanín and Ceballos. The canal is set to be built in 10 years at an estimated cost of nearly $30 billion.

The alleged problem is that one of the judges who delivered the ICJ’s decision is Xue Hanqin, a Chinese national who apparently knew the Nicaraguan ambassador to the court from a previous work position. The Colombians argue that Xue Hanqin probably knew about the canal and should have recused herself because her government had a major interest in the ruling’s outcome. Since she didn’t there are growing suspicions that she might have been working to advance China’s economic and geopolitical agenda.

My Spanish is even vaguer than my French, but, accepting the Univision description as accurate, than this seems like a weak attempt to discredit the ICJ decision.  To be sure, it is possible that Judge Xue knew the Nicaraguan ambassador from her time as a diplomat, and it is also quite likely that she knows about the Chinese government’s interest in a Nicaraguan canal.

But none of that seems to be close to enough to require a recusal or its equivalent.  To be sure, the ICJ’s practice on recusal is pretty lax, and could use some further development.  But even if you think that the Egyptian judge should have been recused from the Israeli Wall advisory opinion, at least the accusation there was about statements made, or views held, by the individual judge.  It was not a claim that he should recuse himself because the Egyptian government opposed the Wall.

But the Colombians are essentially saying that because the Chinese government would have favored the Nicaraguan case, and had a material interest in a favorable outcome, its judge should have recused herself.  That could not be the rule, since it would require recusals all the time.  Now, if they had evidence Judge Xue held shares in a Chinese company that was building the canal, that would be something.  But there is no such accusation, as far as I can tell. (Note: Colombia did not even request her recusal).

Is Judge Xue biased? I suppose she might have been. But she would not have been much more biased than any of the other judges on the ICJ.  With 15 judges, her bias could not have been all that important in the ICJ’s unanimous opinion anyway.

Samuel Moyn Applauds the Death of the Alien Tort Statute

by Peter Spiro

Columbia University historian Samuel Moyn has a tough post up on the Foreign Affairs website on Kiobel and the arc of the Alien Tort Statute, which he sees as having served the narrow constituency of us rather than being true to the historical origins of human rights:

The ATS has been a boon for U.S. law schools, in which students rightly interested in saving the world have been taught to view the statute as an all-powerful tool. But the popularity of the law might have led them to neglect the fact that it offers only a quick fix for a few people with access to U.S. courts, not fundamental change.

The takeaway, with which I’m sympathetic: human rights advocates would be better served to abandon the ATS, even to the extent that Kiobel leaves the door open.

Far better would be to move on to other ways of protecting human rights — less centered on courts, less rushed for a quick fix, less concerned with spectacular wrongs to individuals and more with structural evils, and less disconnected from social movements abroad. And there are also better ways to protect humanity in the age of powerful multinational corporations, notably regulatory schemes that connect far more clearly to the originally welfarist meaning of human rights. If it moved in these directions, the human rights movement would give its conservative adversaries reason not to gloat but to tremble.

I’m sure there will be room for both paths, that is, for some to keep at it with the ATS while others look to put non-judicial mechanisms better to work. But one takeaway for US law schools would be to give a little more play to the latter. Pressing corporate social responsibility norms may not lend itself to the same sort of sexy clinical offerings as the ATS, but it may be better preparation for today’s real world of human rights practice.

Will the Bangladesh Factory Tragedy Kill Voluntary Corporate Codes?

by Peter Spiro

Probably not. The tragedy in Bangladesh — more than 400 dead — on the heels of a fire there in November, is no doubt casting a negative light on non-governmental certification schemes.

But there’s no clear alternative. Voluntary codes of conduct are now routinely subject to institutionalized third party supply-chain monitoring (evidenced by the fact that a number of monitoring firms are themselves publicly traded companies). Obviously, the system is coming up short, as critics vigorously note (see, for instance, this labor-funded study released last month). Many are pushing for something that looks more like public regulation. In that view, the recent Bangladesh episodes look like the global equivalent of the Triangle Shirtwaist fire in 1911, which ushered in the modern era of workplace safety regulation in the United States.

That’s not the the way it’s going to play out, at least not for now. The capacity just isn’t there, either nationally or globally, to fully legalize labor rights. But there are new approaches mixing private-public components that are gaining traction. The most notable example, at the global level, is the UN Guiding Principles on Business and Human Rights. That may set a long-term baseline from which to refine labor rights and other norms into workable practices on the ground. In an interesting (and well-timed) essay in the Boston Review, MIT’s Richard Locke sees promise in regulation by host governments, even in the developing world. Public regulators can overcome capacity deficits by taking a more measured, strategic approach, using carrots to create conditions (e.g., transparency) that improve the effectiveness of private schemes. In the end, only the state can create the level playing field necessary to their success.

The result is some form of polycentric governance, for what that’s worth. The Bangladesh tragedy is training unprecedented attention on the question of how better to hold corporations to human rights norms, defining it as one of the major issues of globalization. It may be, as John Ruggie says of the Guiding Principles, the end of the beginning.  But even the basic outlines of a durable solution still seem over the horizon, and a lot of institutional mapping and empirical study remains to be done.

Weekday News Wrap: Thursday, May 2, 2013

by Jessica Dorsey

Ontario Court Dismisses Ecuadorian Enforcement Action Against Chevron

by Roger Alford

An Ontario court in Yaiguaje v. Chevron has dismissed the Ecuadorian plaintiffs’ efforts to enforce the Ecuadorian judgment against Chevron Canada. Essentially the dismissal rests on the doctrine of the separate legal identities of parent and subsidiary corporations.

Chevron has no assets in Canada, and the subsidiaries’ assets there cannot be attached to enforce a judgment against the parent company. This is not a particularly controversial proposition. Therefore the fight over the recognition and enforcement of the dubious $19 billion Ecuadorian judgment should be resolved elsewhere.

Here’s the key language (paras. 110-111):

By way of summary, Chevron does not possess any assets in this jurisdiction at this time. The evidence also disclosed that no realistic prospect exists that Chevron will bring any assets into this jurisdiction in the foreseeable future…. The plaintiffs’ contention that the assets of Chevron Canada ‘are’ the assets of Chevron has no basis in law or fact…. Accordingly, any recognition of the Ecuadorian Judgment by this Court would have no practical effect whatsoever in light of the absence of exigible assets of the judgment debtor in this jurisdiction.

…. Chevron is on record saying: ‘We will fight until hell freezes over and then fight it out on the ice.’ While Ontario enjoys a bountiful supply of ice for part of each year, Ontario is not the place for that fight. Far from it…. The evidence disclosed that there is nothing in Ontario to fight over…. In my view, the parties should take their fight elsewhere to some jurisdiction where ultimate recognition of the Ecuadorian judgment will have a practical effect.

Chevron’s press release responding to the ruling is here. The Ecuadorian plaintiffs’ press release is here.

The Difference Between Art. 49(6) of GC IV and Art. 8(2)(b)(viii) of the RS

by Kevin Jon Heller

I have no desire to get into an argument with Eugene Kontorovich about the ostensibly “landmark” decision of a French intermediate court — especially because, like him, I am far from fluent in French and the decision strikes me as quite legally complicated. But it is important to push back against claims like these (emphasis mine):

This is an extraordinarily important holding in light of the decades old-debate about the meaning of 49(6) in the context of Israeli civilian migration into the West Bank. It is in direct opposition to the political and international law position on settlements. In the standard narrative, any migration of Israeli Jews past the Green Line, or the expansion of their residences and communities once there, is a war crime. Thus when private citizens decides to buy or build a house across the Green Line, or even expand an existing one, it is a war crime.

Moreover, Israeli citizens who migrate to the West Bank are often said to be guilty of war crimes themselves as aiders-and-abettors. The Versailles decision would seem to reject such a position.

There are two significant problems here. First, despite emphasizing war crimes, Eugene’s post focuses solely on the Fourth Geneva Convention’s prohibition on the transfer of civilians into occupied territory; it simply ignores the Rome Statute’s very different war crime of direct or indirect transfer. Here is Art. 49(6) of GC IV (emphasis mine):

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

And here is Article 8(2)(b)(viii) of the Rome Statute (emphasis mine):

(viii)     The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.

To begin with, it’s worth noting that it is anything but self-evident that Art. 49(6) requires “actually organizing and moving population en masse (compare to individual transfers in 49.1),” as Eugene claims in the comments to his post. His analogy to the Nazis’ colonization of Poland and Ukraine — in which civilians “weren’t merely encouraged, but rounded up” — is misplaced, because unlike Art. 49(1), Art. 49(6) does not require the transfer of civilians to be forcible. Moreover, the war crime in question — Art. 8(2)(b)(viii) — even more clearly does not require “actually organizing and moving population en masse,” because it prohibits both direct and indirect transfer. Art. 8(2)(b)(viii) thus prohibits a much broader range of actions than Art. 46(1). And, of course, a violation of Art. 8(2)(b)(viii), unlike a violation of Art. 49(6), gives rise to individual criminal responsibility.

The second significant problem with Eugene’s post is that, in fact, the French intermediate court’s decision appears to say nothing at all about whether settlement activities qualify as war crimes. Given my French, I am loathe to conclude unequivocally that it does not. But the decision does not mention either the Statut de Rome or Art. 8(2)(b)(viii), nor does it mention crimes de guerre (war crimes) or transfert… indirect (indirect transfer) — two obviously critical expressions in the French version of the Rome Statute.

The French intermediate court’s decision may well be a landmark concerning corporate responsibility; I’m sure Eugene will tell us in his next post. But I think it is to safe to say that the decision tells us little, if anything, about whether Israel’s settlement activities qualify as the war crime of direct or indirect transfer of civilians into occupied territory.

Note: I have restructured the post for clarity.

Is Force Feeding Always Illegal?

by Julian Ku

The Office of the U.N. High Commissioner for Human Rights seems to be condemning the forced feeding of hunger-striking Guantanamo detainees as torture, or perhaps as cruel, inhuman, and degrading treatment in violation of the Convention Against Torture.

Force-feeding hunger strikers is a breach of international law, the UN’s human rights office said Wednesday, as US authorities tried to stem a protest by inmates at the controversial Guantanamo Bay jail.

“If it’s perceived as torture or inhuman treatment — and it’s the case, it’s painful — then it is prohibited by international law,” Rupert Coville, spokesman for the UN high commissioner for human rights, told AFP.

This statement makes great headlines, but I don’t have any idea what exactly Coville is saying.  If its painful, then it is torture or inhuman treatment prohibited by international law? “If it’s painful” is not exactly a very demanding standard.  And the World Medical Association standards aren’t necessarily binding nor have they achieved total consensus.

As this Reuters report notes, U.S. courts, and even the European Court of Human Rights, have held that not all forced feeding is illegal.  Even in holding a particular forced feeding a violation of European human rights law, the ECtHR seems to have carved out an exception for “preserv[ing] the life of hunger strikers if shown to be medically necessary and not done for punitive reasons.”

So if that’s right, I think the OHCHR is acting rashly by issuing a blanket condemnation of all force feeding as a violation of international law, or even condemning the Gitmo force-feedings without any acknowledgment of the possible legal justifications.  It makes good headlines, but it should not be taken as an authoritative legal judgment or conclusion.  No doubt force feeding is horrible, and maybe the type of force feeding in Gitmo does cross the line (doesn’t sound like it, but I suppose it is possible).   But let’s not be so quick to assume its always illegal.

Did the ICJ Really Call the Bolivian Application Against Chile “Impeccable”?

by Julian Ku

This report out of Prensa Latina in Havana suggests that the ICJ has expressed some sort of positive opinion on quality of Bolivia’s case against Chile.

In a press conference, [Bolivian Foreign Minister] Choquehuanca announced the International Court notified Chile on the start of the process and reasserted the Bolivian will of not affecting the bilateral relations with Chile. He also said the Court regarded the Bolivian demand as impeccable, and he expressed his trust in a favourable resolution for Bolivia.

(Emphasis added).  Now there are no doubt some translation issues here, and Prensa Latina is not exactly the most authoritative source.  But it does seem like the Bolivian Foreign Minister is suggesting that the ICJ, in its routine acceptance of an application by a member state, expressed some opinion about the nature and quality of Bolivia’s substantive case.  I am sure this is NOT the case, since the Court’s Registrar is only functioning in an administrative capacity here.  So if the Foreign Minister did in fact say what Prensa Latina reported, his statement is very misleading.  Hey, ICJ Press Office! I think you should issue a statement or something.

Guest Post: Landmark French Ruling on West Bank Construction and International Law

by Eugene Kontorovich

[Eugene Kontorovich is a Professor of Law at Northwestern University School of Law and blogs at the Volokh Conspiracy, where this contribution is cross-posted.]

In an important but largely ignored case, a French Court of Appeals in Versailles ruled last month that construction of a light rail system in the Israeli-controlled West Bank by a French company does not violate international law. In doing so, the court sided with many of the arguments long made against the blanket application of the relevant provisions of the Geneva Conventions to Israeli settlements. National courts rarely if ever address such issues, and thus the decision is important both for its rarity and for what it says.

In this post, I’ll address issues relevant to the substance – Israel’s presence in the West Bank. In the next post I’ll deal with the “Kiobel” issues raised by the case – corporate liability, the value of American ATS cases, and so forth. I should note at the outset that what follows is based on a rough translation of the opinion and my vague French; I would be grateful for corrections on matters of language that I have misapprehended. I venture forward because it is an important decision that deserves attention, yet has been met by complete silence by international legal scholars.

The Jerusalem Light Rail, which began running last year after a long period of construction, links the Western part of the city with the parts occupied by Jordan prior to and annexed by Israel after the 1967 War. The project was widely criticized by pro-Palestinian groups, as was the participation of French rail companies in the project. Along with a variety of political pressure and boycott activities, a Palestinian group sued the French-based multinational conglomerate Alstom Transport for its role in in the project. The case was dismissed below in 2011, and the Court of Appeals upheld the decision last week.

Crucially, the Court held that only the Government of Israel, and not private parties, can violate the relevant provisions of the Geneva Conventions.  The arguments that Israeli communities in the West Bank violate international law start with Art. 49(6) of the Fourth Geneva Convention, which provides that “The Occupying Power shall not deport or transfer its civilian population into the territory it occupies.” The provision was also relied on heavily in the lawsuit. The Court ruled that 49(6) only speaks to and applies to action by the Israeli government (“the Occupying power”), and does not regulate Alton’s activities in the occupied territory.

This is an extraordinarily important holding in light of the decades old-debate about the meaning of 49(6) in the context of Israeli civilian migration into the West Bank. It is in direct opposition to the political and international law position on settlements. In the standard narrative, any migration of Israeli Jews past the Green Line, or the expansion of their residences and communities once there, is a war crime. Thus when private citizens decides to buy or build a house across the Green Line, or even expand an existing one, it is a war crime.

Moreover, Israeli citizens who migrate to the West Bank are often said to be guilty of war crimes themselves as aiders-and-abettors. The Versailles decision would seem to reject such a position.

This conventional reading of 49(6) as generally banning Jewish settlements is disconnected from the text, which only speaks of “transfers” carried out by the Government. Some scholars, including myself, have long maintained that private movement of persons is in no way covered by 49(6), and the Court apparently adopts this position (though I am unclear how much of a role domestic legal principles played). Now one might say the government is always “involved” – roads, security, zoning, etc., but ubiquitous “background” roles do not trigger the state action doctrine in U.S. constitutional law, and it is not clear why they would under international law. (On the other hand, if one gets a package bus/light rail ticket, it would be an unusual literal case of “transfer” into occupied territory.)

Indeed, the French case would be a strong one for inferring governmental role, since the defendant worked under contract with Israeli governmental entities. My understanding of the Court’s opinion is a little fuzzy here, but it seems they say contractual privity is not enough to trigger 49(6) either. This would certainly make it inapplicable to the vast majority of Israeli settlers (not all, necessarily, since 49(6) is ultimately a case-by-by-case factual question.

The Court goes on the reject the notion that the relevant norms have become customary or jus cogens and apply without the particular textual restrictions of 49(6).

Israel’s critics often  claim that “everyone agrees” that international law bans all “settlement activity” as it is broadly called, and that only Israeli apologists could believe the arguments to the contrary. (In the Human Rights Council’s recent report on Israel’s settlements, light rail is itself called a settlement.) I assume the Versailles Court of Appeals won’t be accused of being unduly sympathetic to the Jewish State.

Indeed, many might share my surprise on such a decision coming from a European court, especially given the supposed uniformity of views on the underlying legal issues. Perhaps two factors may explain the surprising decision: this is not an international court, but an ordinary municipal one, and it was an important French industrial concern, rather than Israel, in the dock. International lawyers may what could positively be described as professional or scientific knowledge of the matter, or more cynically as guild orthodoxy. Judges unversed in these verities might see things differently. And of course, here international law is being used against important and powerful domestic interests.

The plaintiffs could still appeal to the Cour de Cassation, which however is not obligated to hear the appeal.

Weekday News Wrap: Wednesday, May 1, 2013

by Jessica Dorsey