Archive for
September, 2013

Book Symposium Investment Law: Comments on Freya Baetens’ Introductory Chapter

by Laurence Boisson de Chazournes

[Laurence Boisson de Chazournes is Professor of international law at the Faculty of Law of the University of Geneva, Switzerland].

In her chapter, Freya Baetens notes that it is necessary to scrutinize “how concepts, principles and rules developed in the context of other sub-fields could (or should) inform the content of investment law.” This scrutiny is well-deserved, as the interrelations of other bodies of norms with the corpus of norms related to investment law have gained traction but remains ambiguous.

The notion of cross-fertilization and that of legal regimes informing one another are abundantly referred to. While I share this a-hierarchical vision (with the caveat of the possible application of jus cogens and erga omnes obligations) of the relationships among different bodies of law, one should be cautious so as not to transform a land of its own—i.e., international law—into an archipelago of islands more or less connected, which needs artificially created pathways.  There is no reason for international investment law, as a field of public international law à part entière, not to be incorporated in the universe of international law.

In addition to stressing the need for decision-makers to adopt a systemic view of such interrelationships, Freya highlights the key role that rules of interpretation play in promoting a more unitary approach.  Much more attention should be paid to the set of rules as codified in Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties.  These rules should be observed as a set of objective rules (to be interpreted in conformity with the rules they provide for) and not as a menu left to the taste and desire of tribunals.

I would like to draw attention to the concept of mutual supportiveness which has emerged as an interpretative tool. Freya’s viewpoint evokes it. It constitutes a lens through which international law is increasingly observed. Mutual supportiveness implies that States and arbitrators should refrain, whenever possible, from construing conflicts between international investment obligations and other legal interests. Moreover, there should be mutual adjustments: on each side, there should be an attempt to prevent the eruption of a conflict. This can be done in an ex ante manner at the time of the negotiation. Freya’s chapter provides some examples in this respect. States bear an important responsibility in this context. The prevention of the eruption of a conflict can also be done in an ex post manner when a dispute is to be settled.  This is where the rules of interpretation play a key role.  It undoubtedly focuses attention on the powers of tribunals.  The wording and content of investment treaties is of crucial importance in an interpretative context.

The principle of mutual supportiveness has most prominently emerged in the relationships between international trade and the environment, but is not limited to this area.  For example, the OECD has incorporated mutual supportiveness as a primary principle in its Green Growth Strategy Report (2011), encouraging Member States to foster compatibility between their investment-related and environmental policy goals.

I then would like to make two observations related to two so-called sub-fields. One of these deals with human rights considerations, while the other one concerns international humanitarian law.  Continue Reading…

Book Symposium Investment Law: No Law is an Island, Entire of Itself – How International Investment Law Interacts with Other Fields of International Law

by Freya Baetens

[Dr Freya Baetens is Associate Professor of Law at Leiden Law School, Director of Studies at Leiden University College (LUC) and Head of the LUC Research Centre at Leiden University.]

The last two decades have witnessed an exponential increase in investor-State arbitrations. Investment tribunals now regularly render binding decisions as to whether States have violated protection standards guaranteed under various investment treaties. The pace by which these tribunals deliver their awards has turned investment law into one of the most dynamic fields of public international law. Developments in other sub-fields of international law influence the development of international investment law, but also vice versa, changes in investment law have an impact on the evolution of other fields of international law.

As the majority of publications focuses on the application and interpretation of investment protection standards, the interaction of international investment law with other sub-fields of international law has not been so extensively explored yet. To fill this gap, academics and practitioners contributing to this collection examine specific links between investment law and such other rules of international law. In particular, this book scrutinizes how concepts, principles and rules developed in the context of other sub-fields of international law could (or should) inform the content of investment law. Solutions conceived for resolving problems in other settings may provide instructive examples for addressing current problems in the field of investment law, and vice versa. This serves as an aid for several contributors to determine whether various sub-fields of public international law, particularly international investment law, are open to cross-fertilisation, or, whether they are evolving ever further into self-contained regimes.

This book contains a peer-reviewed selection of the most innovative and outstanding papers resulting from presentations at the international conference on ‘The Interaction of International Investment Law with Other Fields of Public International Law’ which took place on 8 and 9 April 2011 at Leiden University. This conference brought together experts from the field of international investment law with renowned scholars and practitioners from other sub-fields of international law. The five parts of this volume each address one particular interrelationship: the authors of each part have had the opportunity to examine each other’s ideas so as to guarantee a coherent approach to the matter, thereby avoiding a fragmented discussion.

One important comment received in the course of preparing this book/volume was that a book such as this one could pursue two goals: (1) an overall – single volume – assessment of the literature ‘with some extra edge’; or (2) a selection of the most relevant issues. So, in which category does this work belong? Continue Reading…

Book Symposium on Investment Law in International Law: Integrationist Perspectives

by An Hertogen

This week we are hosting a symposium on Investment Law Within International Law: Integrationist Perspectives, a brand new volume edited by Dr. Freya Baetens (Leiden – Law) and published by Cambridge University Press.

Here is the abstract:

Developments within various sub-fields of international law influence international investment law, but changes in investment law also have an impact on the evolution of other fields within international law. With contributions from leading scholars and practitioners, they examine specific links between investment law and other sub-fields of international law such as the law on armed conflict, human rights, sustainable development, trade, development and EU law. In particular, this book scrutinizes how concepts, principles and rules developed in the context of such sub-fields could inform the content of investment law. Solutions aimed at resolving problems in other settings may provide instructive examples for addressing current problems in the field of investment law, and vice versa. The underlying question is whether key sub-fields of public international law, notably international investment law, are open to cross-fertilisation, or, whether they are evolving further into self-contained regimes.

Freya will introduce the book later today, followed by a general comment by Professor Laurence Boisson de Chazournes (Geneva). From tomorrow until the end of the week, the discussion will focus on specific chapters dealing with the intersection between investment law and international armed conflict, human rights, trade, sustainable development and much more!

Cambridge University Press is offering our readers who wish to purchase the book a 20% discount until the end of October. To claim your discount, click here and enter the code “BaetensOJ2013”.

We look forward to what promises to be an interesting discussion and hope that you will join the debate in the comments.

It’s Autumn in New York, Which Means International Law Weekend 2013

by Julian Ku

[I am passing along a message from Professor Ruth Wedgwood about the upcoming International Law Association meeting in New York. Hope to see many of you there!]

International Law Weekend 2013 — the world-famous autumn festival of the migratory flock of international lawyers, brought to you by the American Branch of the International Law Association and the International Law Students Association — begins on Thursday night, October 24, 2013, at the Great Hall of the Association of the  Bar of the City of New York, 42 West 44th Street, NYC, and continues at 9 a.m. Friday and Saturday, October 25-26, at the Lincoln Center facilities of Fordham Law School, at 140 West 62nd Street, NYC.   Advance Registration is available at http://ila-americanbranch.org/ or http://www.ilsa.org/conferences/16-conferences/16-ilw-new-york.

As always, admission is free for all students, faculty, lawyers, and staff from co-sponsoring institutions, as well as all members of the American Branch of the International Law Association, the International Law Students Association, and the Association of the Bar of the City of New York.  Staff members of the United Nations and Permanent Missions to the United Nations can also attend for free.  The registration fee remains a modest $175 for the two days combined for all other practicing lawyers and members of the public.  And for the first time, there will be 14 hours of Continuing Legal Education credit available to all lawyers in attendance, accepted by New York, Pennsylvania, and Virginia.  The CLE credits are also provided free.

Events and Announcements: September 29, 2013

by Jessica Dorsey

Events

  • On October 2nd, the University of Richmond School of Law will host an ASIL Speed Mentoring Panel event, described as: “a unique forum that will expose law students and new legal professionals to experienced international practitioners. The event will begin with a brief introduction of the panelists and several questions presented by D. Wes Rist, ASIL’s Director of Education and Research, designed to provide insight into professional development opportunities, as well as to illustrate the various avenues the panelists took into international legal practice. Following the group discussion, each panelist will “host” a table at which a small group of students can spend 10-12 minutes asking more personal, directed questions of the participants. Students will then be able to rotate among tables, thus having the chance to speak directly with multiple panelists.The 90-minute speed mentoring event will be followed by a networking reception from 6:00 to 7:00 p.m. Practitioners in the area and others who do not plan to attend the speed-mentoring event are welcome to attend the reception.  No registration is required for those attending the reception only.”
  • On October 15th, the T.M.C. Asser Instituut in The Hague,  as a special book launch evening in its Hague Initiative for Law and Armed Conflict (HILAC) Lecture Series, will host a book launch for Armed Conflict and International Law: Searching for the Human Face, a liber amicorum in memory of Dr. Avril McDonald. The event is free, but registration is necessary.
  • The Government Law College, Mumbai, India, in association with the D. M. Harish Foundation is pleased to announce the 15th edition of the D.M. Harish Memorial Government Law College International Moot Court Competition (DMH), scheduled to be held from 6th-9th February, 2014. Comprehensive information about the moot along with the case study, Written Submissions, Rules and other details of the previous years can be accessed from the competition website. The contact person is Mr. Raghav Dev Garg. 
  • International Law Weekend 2013 — the world-famous autumn festival of the migratory flock of international lawyers, brought to you by the American Branch of the International Law Association — begins on Thursday night, October 24, 2013, at the Great Hall of the Association of the  Bar of the City of New York, 42 West 44th Street, NYC, and continues at 9 a.m. Friday and Saturday, October 25-26, at the Lincoln Center facilities of Fordham Law School, at 140 West 62nd Street, NYC.   Advance Registration is available at http://ila-americanbranch.org/ or http://www.ilsa.org/conferences/16-conferences/16-ilw-new-york.

Announcements

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

Has Owen Bowcott Ever Bothered to Actually Read Perisic?

by Kevin Jon Heller

I pointed out last month that Owen Bowcott, a legal affairs correspondent for the Guardian, incorrectly claimed that “[g]enerals and politicians could evade responsibility for war crimes in future because of a ruling requiring proof that they ‘specifically directed’ atrocities.” That is not what Perisic does: the Appeals Chamber did not say that a perpetrator must specifically direct a crime; it said that a perpetrator must specifically direct his assistance toward a crime — the difference between ordering and aiding and abetting.

I tweeted my post to both Bowcott and the Guardian. Unfortunately, neither seems concerned with accuracy — Bowcott’s new article on the Charles Taylor judgment makes exactly the same erroneous claim (emphasis mine):

There had been speculation that the tribunal might overturn Taylor’s convictions, following stricter precedents set in the international criminal tribunal for the former Yugoslavia about what constitutes “aiding and abetting”. A series of recent judgments in that court now mean proof is required that senior military commanders have “specifically directed” atrocities.

Bowcott has either not read Perisic or simply does not understand it. Either way, he has no business writing about international criminal justice.

Kiobel and the Resurgence of the Traditional Bases of Jurisdiction in the Alien Tort Statute

by Kenneth Anderson

Reading Roger’s post last week about how lower courts are interpreting the Supreme Court’s ATS ruling in Kiobel made me recall that I’ve fallen down in posting papers to SSRN – including a new one in the Cato Supreme Court Review 2012-2013, “The Alien Tort Statute’s Jurisidictional Universalism in Retreat.”  The article (chatty and speculative, be warned, an essay aimed at a broader audience than ATS specialists or international law scholars) tries to set Kiobel and, for that matter, the ATS itself, in a wider frame of what jurisdiction is supposed to mean beyond its technicalities.  It contrasts the sweeping universalist language of 1980s-era ATS suits, and the belief of people like Judge Irving Kaufman (who wrote the celebrated Filartiga opinion) that they were pronouncing on “international law ” through the exercise of universal jurisdiction, even though it happened to be in a US district court and applying distinctly US concepts through and through, with Kiobel’s return to traditional jurisdictional categories.

Whether the Chief Justice’s application of the presumption against extraterritoriality or Justice Breyer’s more capacious, yet still traditionally grounded, tests for jurisdiction, Kiobel signaled that the traditional grounds found, for example, in the Restatement of Foreign Relations are the ones that matter.  One could say, of course, that this has been true for a while.  After all, arguing that the ATS might require some conduct by someone that constitutes a violation of the law of nations, but doesn’t take into account whether the law of nations recognizes that someone as having the legal capacity to violate the law of nations, and so merely a domestic statute providing a domestic civil remedy for something that need not be international law as such, but merely conduct that would, if done by some actor with legal capacity, violate international law – well, that isn’t making any sweeping assertions about being international law or universal jurisdiction for the application of international law.  It’s just a peculiar American statute that gate-keeps liability with a weirdly counterfactual reference to international law as it might be.

International law in the subjunctive mood, maybe we could say.  But in that case, treating the statute as merely a domestic one with a weirdly constructed trigger, invoking a “law of nations” that we don’t mean the way other people mean it, argues strongly for a traditional approach to jurisdiction – it’s not universal jurisdiction anymore, because we’re not pretending that our reference point is actually universal, but instead merely a claim of extraterritoriality.  So it doesn’t seem quite so strange that the Chief Justice would invoke the presumption against extraterritoriality, because the thing, the statute, that plaintiffs propose to apply extraterritorially isn’t truly a claim of universality, either. Continue Reading…

Has the ICC Learned Its Lesson from Melinda Taylor’s Detention?

by Kevin Jon Heller

The Pre-Trial Chamber has ordered the Registrar to arrange a privileged visit between al-Senussi and his ICC lawyer, Ben Emmerson, in Libya. On the positive side, the PTC seems to have learned something from Libya’s abhorrent detention of Melinda Taylor. Witness the following language in the order:

15. Taking into account the purpose of the visit, the provisions of the ad hoc arrangement should be appropriate to ensure, in particular, the right of Mr Al-Senussi to communicate freely with his counsel in confidence, in  accordance with article 67(l)(b) of the Statute.

16. Therefore, the arrangement should include all practical arrangements necessary to ensure the unhindered entrance of the Defence team and their belongings to Libya as well as their appropriate treatment and protection during their stay on Libyan territory. This treatment should explicitly include, at a minimum, immunity from arrest and detention and from search of personal baggage for the individuals participating in the visit, the inviolability of the Defence documents, and the non-interference with and guarantee of the privileged nature and communication between Mr Al-Senussi and his Defence during the meeting. The Chamber recalls that, in conformity with international law, such privileges and immunities are without prejudice to the obligation of those participating in the visit to respect the national laws of Libya. If Libya has reasonable grounds to believe that the Defence of Mr Al-Senussi has violated Libyan law, Libya shall, however, not take any action that may impact on the necessary treatment that must be accorded to the Defence under the Statute, unless and until the Presidency of the Court has, upon prompt official request by Libya, waived the relevant immunity.

It’s good to see the PTC insisting on a privileged meeting and immunity for Emmerson and the other members of the defence team. But I’m baffled by the fact that the order is directed to the Registrar and not to Libya; indeed, the PTC denied the defence’s request for finding Libya in breach of its obligation to cooperate with the Court. The Registrar, however, is not the problem. Libya is. The Registrar has not prevented Emmerson from meeting with al-Senussi in the seven months since the PTC first requested a privileged visit. Libya has.

There is no reason to believe that Libya will suddenly start to cooperate with the Registrar. The only consistent aspect of Libya’s behavior has been its contempt for the Court. Will the PTC ever get around to ordering Libya to respect al-Senussi’s right to counsel?

Stay tuned.

Weekend Roundup: September 21-27, 2013

by An Hertogen

This week on Opinio Juris, Kevin welcomed Just Security to the blogosphere, but regretted the absence of a comments section.  Not one to be easily stopped, he went for inter-blog commentary instead with his response to Ryan Goodman’s post on whether or not the US is at war with al-Qaeda. He also criticized the Special Court for Sierra Leone’s Appeals Chamber for its incoherent — and selective — analysis of custom in the Taylor  case.

The annual General Assembly debate started this week, and as is often the case the question of attendance by not-so-squeaky-clean heads of state popped up, this time around Sudan’s President Bashir plans to attend the meeting, as discussed by Julian and John Cerone. As Kevin pointed out, Bashir changed his mind in the end.

Ken and Deborah analysed the draft Security Council resolution on Syria’s chemical weapons. Further on Syria, Julian discussed a proposed Statute for a Syrian Extraordinary Tribunal for Atrocity Crimes.

Julian also discussed the piracy charges against Greenpeace activists in Russia, and Duncan examined what the object and purpose of the arms trade treaty is.

On the intersection of US domestic law and international law, Duncan asked whether the offenses clause can save Missouri v. Holland, and Roger surveyed lower courts’ decisions post-Kiobel to find that they narrowly interpret the Supreme Court’s ruling.

Finally, Jessica recapped the weekly news on international law and international relations and yours truly listed events and announcements.

Have a nice weekend!

On the Draft Security Council Resolution

by Deborah Pearlstein

As Ken notes below, the draft UN Security Council Resolution regarding the disposition of Syria’s chemical weapons is now available. While it can’t be construed as authorizing the use of force against Syria to ensure compliance without further Security Council action – entirely consistent with the Council’s past practice in Iraq, Kosovo, and elsewhere with slowly escalating Security Council threats and then reality of sanctions it decides to impose – marks an obvious and large step forward in what had, until a few weeks ago, been a seemingly intractable disaster. Not that the disaster is over. Hardly. But the series of steps Syria has already taken to comply with the U.S.-Russia accords providing for the removal of chemical weapons, and the reality of any Security Council action at all given the P5’s diverse political interests in the region, is a remarkable achievement.

Beyond those Ken mentioned, another passage of the draft resolution seems worth highlighting:

Encourages Member States to provide support, including personnel, technical expertise, information, equipment, and financial and other resources and assistance, in coordination with the Director-General of the OPCW and the Secretary-General, to enable the OPCW and the United Nations to implement the elimination of the Syrian Arab Republic’s chemical weapons program, and decides to authorize Member States to acquire, control, transport, transfer and destroy chemical weapons identified by the Director-General of the OPCW, consistent with the objective of the Chemical Weapons Convention, to ensure the elimination of the Syrian Arab Republic’s chemical weapons program in the soonest and safest manner.

What does this mean? Without seeing the OPCW’s plan, it’s hard to tell exactly. But it leaves little doubt Member States (like chemical weapons disposal experts the U.S. and Russia) now have the authority to send personnel (including presumably support for their security) into Syria to “acquire, control, transport, transfer and destroy chemical weapons.” Do U.S. Army Explosive Ordinance Demolition teams count as “boots on the ground”? If they get killed, captured, or gassed in the course of their work, hard to see how not.

Putting the Cart Before the Horse? Top Panel of International Criminal Law Experts Proposes “Extraordinary” Criminal Tribunal for Syria

by Julian Ku

As one commenter to Ken’s post on the draft UN Security Council Resolution notes, there will be no Security Council referral to the ICC on Syria. Currently there is one paragraph in the draft resolution expressing the Security Council’s “strong conviction that those individuals responsible for the use of chemical weapons in the Syrian Arab Republic should be held accountable;”  That’s not much, but it might be enough of a hook for some future UN Security Council or a future Syrian government to set up a hybrid ad hoc criminal tribunal to hold “accountable” those users of chemical weapons.

So it is worth noting that friend of blog Michael Scharf of Case Western Reserve University Law School alerts us to a proposed “Statute for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes” that he, and a panel of blue-ribbon international criminal law experts, have released under the auspices of the Public International Law and Policy Group (PILPG).  The panel of experts is both distinguished and experienced on questions of international criminal law, and on the nitty-gritty details of setting up international criminal tribunals.  They will be discussing next week at a press conference in DC and it should get quite a bit of attention among US and UN policymakers.  It is a discussion draft, and it is not an attempt to demand the UN or Syrian governments establish something exactly along these lines.  Rather, it is an attempt to get the ball rolling among lawyers and policymakers.

One move in the proposed draft stands out.  The proposed tribunal is not exactly an international criminal tribunal, and indeed, it is not necessarily even a hybrid tribunal (with a mix of international and domestic judges) although its closest analogue appears to be Cambodia. Rather, it could be simply a special court set up under Syrian law to prosecute high-level offenders for violations of international law.  One advantage to this approach?  I don’t think it would require UN Security Council action to set up such a tribunal.  So that is a useful nod to political realities and Russia’s current position.

One (really big) disadvantage to this approach? We would need a new Syrian government to set up and carry out this proposed statute.   And to get that new Syrian government, would we have to promise some sort of immunity to the old Syrian government that committed all those horrible crimes we want to prosecute?

Obviously, there is a lot to sort through, and I do salute Prof. Scharf for getting the conversation rolling in a useful and politically realistic way.  But there are not just legal, but enormous political issues that need to be dealt with before key details of such a tribunal could be determined.

The SCSL’s Incoherent — and Selective — Analysis of Custom

by Kevin Jon Heller

As readers know, the Special Court for Sierra Leone’s Appeals Chamber upheld Charles Taylor’s conviction and 50-year sentence yesterday. It’s been interesting to watch human-rights groups and advocates claim, predictably, that the judgment is a milestone in the fight against impunity, a position that seems to wilfully ignore the significant failure of the prosecution in the case. After all, both the Trial Chamber and the Appeals Chamber have now categorically rejected the prosecution’s claim that Taylor was the puppet-master of the atrocities in Sierra Leone, each concluding that he was merely an accessory to the RUF and AFRC’s crimes. And, of course, both the Trial Chamber and Appeals Chamber imposed a sentence 30 years shorter than the one the prosecution demanded. (Taylor’s sentence remains grossly disproportionate, as I explain in my article on the sentence, which was recently published. I’ll have more to say how the Appeals Chamber dishonestly evaded that conclusion in a later post.)

In this post I want to discuss the aspect of the judgment that has already received the most attention: the Taylor AC’s rejection of the specific-direction requirement, which the ICTY (re-) adopted in the Perisic AC judgment. According to the Taylor AC, the Perisic AC failed to consider whether the specific-direction requirement was consistent with customary international law:

476. The Perišić Appeals Chamber did not assert that “specific direction” is an element under customary international law. Its analysis was limited to its prior holdings and the holdings of the ICTR Appeals Chamber, which is the same body. Rather than determining whether specific direction is an element under customary international law, the Perišić Appeals Chamber specifically and only inquired whether the ICTY Appeals Chamber had previously departed from its prior holding that “specific direction” is an element of the actus reus of aiding and abetting liability. In the absence of any discussion of customary international law, it is presumed that the ICTY Appeals Chamber in Perišić was only identifying and applying internally binding precedent.

Marko Milanovic notes today at EJIL: Talk! that this is — to say the least — an unconvincing interpretation of what the Perisic AC thought it was doing. As is widely known, the ICTY’s mandate is to apply only those legal principles that are “beyond doubt part of customary international law.” The Taylor AC is thus claiming that the Perisic AC deliberately ignored its own mandate — a troubling claim, especially given that Justices Fisher and Winter insist in their concurring opinion (para. 717) that their colleagues at the ICTY “are sworn to act independently… honestly, faithfully, impartially and conscientiously.”

Underlying the Taylor AC’s accusation of bad faith on the part of the Perisic AC is, of course, the Taylor AC’s conclusion that there is no customary foundation for the specific-direction requirement. Here is what it says…

P-5 Approved Draft Language of Security Council Resolution on Syria’s Chemical Weapons

by Kenneth Anderson

Probably many of you are reading, as I am now, the just-released language of a draft UN Security Council resolution (reported by the press as P-5 approved) on Syria’s chemical weapons.  I’m particularly interested in this, as I’m talking tomorrow at ASIL’s monthly brown bag lunch for Congressional staff on Syria and the use of force – it’s a descriptive talk for a non-expert audience, not me making a pitch, based around an ASIL Insight I did a few weeks ago but which, of course, needs updating in the talk tomorrow to respond to the current situation.  I’m not going to put the draft text up in full – Reuter’s has it here.

The draft resolution says, to note a few bits, that use of chemical weapons “anywhere” constitutes a threat to international peace and security; use of chemical weapons in Syria (without saying who) is a threat to international peace security; use of chemical weapons in Syria is also a serious violation of international law for which there must be accountability for those responsible; and, finally, under the title “Compliance,” the Security Council

21. Decides, in the event of non-compliance with this resolution, including unauthorized transfer of chemical weapons, or any use of chemical weapons by anyone in the Syrian Arab Republic, to impose measures under Chapter VII of the United Nations Charter;

22. Decides to remain actively seized of the matter.

Unsurprisingly, nothing in the language of the draft resolution appears to budge the views of the US and Russia.  I’ve talked about this as a process versus substance view of the UN and international law.  That is, if you view international law as being international institutions and their processes, establishing the substantive reach and meaning of international law through those institutions and processes, then there’s little in here that would give the US grounds to act on its own.  The “Compliance” language of the draft resolution (in the event of noncompliance, the Security Council “decides” to “impose measures under Chapter VII”) is a process statement that, under the Charter, makes it the Security Council’s call what measures and under what terms.

If, by contrast, you view international law as having a substance and content that is not simply identical with the results of international institution’s processes, but instead has independent content and meaning, then if you are “a” government that decides to act unilaterally, you at least open up the possibility to claim that the (deadlocked) processes of the Security Council have got it so badly wrong that it is not illegal to act – because the question of legality is in the first place the content of the law, and only secondarily its processes.  It’s not taking the “illegal but legitimate” position, because it doesn’t regard it as “illegal.” Nor does this adopt the position of “extralegal and legitimate.” It says, rather, that legality is not 100% defined by processes of international institutions, which might be flawed in many ways, and the content of international law is at least partly distinct from it.

And then, looking at the draft resolution – just as the ‘proceduralists” would point to the Security Council deciding in the case of noncompliance to “impose” measures and that the Security Council “remains seized” – the ‘substantivists’ (while denying they need to do this) point to the draft resolution as declaring, not only that any use of chemical weapons is a threat to international peace and security, but also a “serious violation of international law.” Which, having a life independent of international institutions and their processes, might be the subject of unilateral action.  I think that’s probably a fairly accurate restatement of what Ambassador Power has said many times, in one rubric or another, over the last few weeks.

So, on my quick read of the draft resolution … it probably advances the ball on getting CW teams and all that into Syria, on the ground in a practical way.  It doesn’t appear to move things one way or the other, unless I have missed something in my haste, as far as the basic disagreement over the US’s threat to use unilateral force and the respective views of international law as such that underlie the respective positions.

(And while I’m thinking of it, some readers might be interested in a long review essay I wrote over at Lawfare, reviewing Joost Hiltermann’s 2007 book, A Poisonous Affair, and George Black’s 1993 report for Human Rights Watch,  Genocide in Iraq.  The review discusses those books as well my own experience with a forensic anthropology team in Kurdistan in 1992, exhuming mass graves from massacres and a chemical weapons attack during the 1988 Anfal campaign.)

Weekly News Wrap: September 26, 2013

by Jessica Dorsey

It’s been another busy week in international law and international relations. Here’s a recap of a selection of the headlines from around the world:

Middle East

  • Israel and Palestine have agreed to intensify their peace talks with greater participation by the United States.
  • Iran’s foreign minister expressed hope that a meeting with top diplomats from the US and five other powers will jump-start negotiations to resolve the decade-long dispute over the Iranian nuclear program.
  • UN chemical weapons inspectors have returned to Syria to continue investigating allegations of chemical weapons use.

Asia

Africa

  • After this weekend’s hostage situation at a Nairobi mall where al-Shabaab has taken responsibility for attacking and killing over 70 civilians before the mall collapsed, Kenyan security forces are continuing to go from room to room inside the mall, firing protectively before entering unknown territory, in a bid to secure the complex a day after a siege that killed scores ended. Foreign forensic teams have joined to assist the Kenyan authorities in their search. Foreign Policy offers analysis here.
  • African Union leaders will hold a special summit next month amid growing opposition to the crimes against humanity trials of Kenya’s leadership at the ICC.

Europe

  • Today, at 11:00 CET, the Appeals Judgment will be delivered in the Charles Taylor Trial (see here and here for information about the case). You can watch the events live  here via the SCSL’s website.
  • Russia has accused Greenpeace activists of piracy. IntLawGrrls has more here.
  • The UK-based NGO Reprieve has claimed there is a campaign of intimidation of human rights workers going on at UK borders after the Terrorism Act was used to detain a Yemeni activist at Gatwick. Glenn Greenwald offers more here.
  • People in the southern Swiss canton of Ticino have voted to impose the country’s first ban on full-face veils, following in the footsteps of French and Belgian restrictions that rights groups say discriminate against Muslims.

Americas

BREAKING: Bashir Problem Now a Non-Problem

by Kevin Jon Heller

For the non-twitterati, Omar al-Bashir has — unsurprisingly — cancelled his trip to the UN. That decision reflects an underappreciated “soft power” aspect of the ICC: even an unexecuted arrest warrant limits the freedom of a suspect facing charges. There may be no reasonable prospect of Bashir being arrested anytime soon. But there is also no reasonable prospect that he will be traveling outside of Asia, Africa, and the Middle East anytime soon either, making it much more difficult for him to function as an effective head of state. With luck, his political party will eventually decide he’s more trouble than he’s worth — at which point he may well end up in the ICC’s dock. (A lesson Mr. Milosevic learned the hard way.)

UN General Assembly Should Allow US to Deny Al Bashir Access

by John Cerone

[John P. Cerone is Visiting Professor of International Law at the Fletcher School of Law & Diplomacy (Tufts University) and Professor of Law at the New England School of Law.  He has also served as Special Advisor to the US delegation to the UN Human Rights Council and as a legal advisor to international criminal courts.]

Omar al Bashir, President of Sudan and fugitive from international criminal justice, must not be allowed to address the United Nations General Assembly.  To permit him to appear on the rostrum would undermine the credibility of the United Nations as a whole, and in particular in the realm of human rights.

Beginning on September 24, an unprecedented number of Heads of State and Government began to converge as the General Debate opened for the 68th session of the United Nations General Assembly.  Mr. Bashir has recently confirmed his intention to travel to New York to participate in the session.

The General Assembly has it within its power to waive the US obligation to admit Mr. Bashir onto US territory.  Arresting him in the US is not an option, as Mr. Bashir is immune from arrest under obligations owed to Sudan.  And even if the US was prepared to violate these obligations, or to attempt to craft legal arguments to circumvent them, arresting a visiting Head of State who had lawfully been admitted to the US in order to address the UN General Assembly could precipitate a constitutional crisis in the United Nations.

However, unlike the obligation to respect his immunity, which is an obligation owed to Sudan, the obligation to facilitate his travel to the UN is an obligation owed to the UN as an organization, and not to Sudan.

The Headquarters Agreement, which requires the United States to facilitate the travel of Member State officials to UN Headquarters, is a bilateral treaty that was approved by the UN General Assembly in 1947.  There are only two parties to the treaty – the US and the UN as an organization, and the rights accorded to the UN under the treaty are for the benefit of the organization.  (Sudan is not a party to that treaty, and any rights incidentally conferred on third parties could be suspended by the mutual consent of the two parties to the treaty.)

It is arguable that the Secretary General could, on his own initiative, waive the UN’s right to have the visa issued…  (Continue Reading)

What’s the Object and Purpose of the Arms Trade Treaty?

by Duncan Hollis

I’ve been surprised how quiet the Obama Administration has been in terms of treaty actions in its 5 years in office — you can pretty much count on one hand the number of treaties that have gone through the Senate Advice and Consent process (and nothing at all has happened this Congress). Now, some of the blame for this certainly rests with a recalcitrant (some might say new-sovereigntist) minority of U.S. Senators (see, e.g., UNCLOS and the UN Disabilities Convention fights).  Still, the reality of the last few years has been that major U.S. treaty actions by the Executive are also fairly uncommon occurrences.  So, the news today that John Kerry will sign the UN Arms Trade Treaty (ATA) for the United States is quite noteworthy given the paucity of such signatures of late.

The mainstream news media attention on the U.S. signing has (understandably) focused on the domestic opposition to the ATA, most notably the hostility of the National Rifle Association.  As a result, the legal issues associated with treaty signature have gotten sparse attention.  Indeed, in looking at today’s Washington Post, readers get no real sense that U.S. signature of the ATA will not actually commit the United States to comply with its provisions, nor the fact that the ratification which would involve such a commitment requires the advice and consent of the U.S. Senate (something that seems very unlikely at present).  This is not to say that signature has no real world effects — it does.  But the media has done little to explain them so I’ll flag the two that are most important.  First, U.S. signature of the ATA serves a signaling function, letting the world know that the United States supports the treaty and will look to begin the domestic processes necessary to join the ATA (although I can tell you from my former life in the State Department that those processes can take years without anyone really batting an eye).  Second, signature has one major legal consequences for the signing State as described in Article 18 of the Vienna Convention on the Law of Treaties:

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty …

Now, the United States is not a party to the VCLT, but the VCLT is widely accepted within the U.S. Government as codifying customary international law.  Article 18 in particular has been specifically treated as customary by the likes of former Secretary of State Colin Powell and John Bolton, most visibly in U.S. attempts to indicate an intention not to become a party to the Rome Statute or the Kyoto Protocol (see also Treaties and Other International Agreements, 2001 Digest of United States Practice in International Law 212-213 for more on Powell’s views).

If, as I believe, Article 18 is customary international law binding on the United States, that raises the interesting question of what obligations exactly will the United States assume by signing the ATA? Simply put, what acts by the United States would defeat the ATA’s object and purpose?  Is there any content to Article 18 in this context — which may then legitimate the NRA’s very vocal objections to U.S. signature — or is the signature limited to its signaling value without any real restrictions on U.S. behavior going forward?  I’d welcome reader input on one or more examples of things that would clearly cross the Article 18 line or thoughts on what acts the ATA does regulate but which cannot be said to trigger the object and purpose requirements associated with treaty signature.

Russia May Charge Greenpeace Activists with Piracy; Will They Cite the Ninth Circuit? (Updated)

by Julian Ku

[See update at end of this post] Russia’s government has recently been talking up international law, so it will be interesting to see if they follow through with plans to charge Greenpeace activists with piracy.

MOSCOW — Russia opened a criminal case Tuesday against Greenpeace activists, accusing them of piracy for attempting to stage a protest on an Arctic oil rig. A Greenpeace spokeswoman called the accusation “absurd.”

Russian border troops seized the Greenpeace icebreaker Arctic Sunrise, along with its multinational crew of 30 activists and sailors, in a commando operation Thursday in the Barents Sea. The day before, the group had been foiled while attempting to raise a protest banner on a Russian oil drilling platform.

The facts remain pretty fuzzy, but I don’t think the Russian charge of piracy is quite as absurd as Professor Joseph Sweeney of Fordham, an eminent authority on admiralty law, makes it out to be.  Prof. Sweeney says in the article:

“They can’t be too serious about charging them with piracy,” said Joseph C. Sweeney, professor emeritus of international and maritime law at Fordham University Law School. “That requires stealing things and the intention of stealing things.”

But current definitions of piracy don’t require an intention for financial enrichment. Rather, as we noted back in February when the U.S. Ninth Circuit Court of Appeals upheld an injunction against anti-whaling protestors for attacking Japanese whalers, UNCLOS requires only that the attackers be acting for “private ends.”  As Kevin argued in his post, there is reason to believe that “private ends” does not include “politically motivated” acts (although Eugene Kontorovich has a good rebuttal of that point here).  In any event,  I think the traditional idea that piracy requires the goal of financial enrichment cited by Professor Sweeney is no longer widely held.

This means that the Russians can make out a colorable charge of piracy.  It also means that this theory will allow them to avoid questions about whether they were in the Russian exclusive economic zone, etc, since that shouldn’t matter if they stick with the piracy charge.  I expect the Russians will cite the Kozinski Ninth Circuit opinion, and if they do, this may be an important precedent for the development of modern piracy law.

[UPDATE: I stand by the analysis above, but I should note that 1) Eugene Kontorovich argues that this can’t be piracy because they did not attack a “ship”; and 2) Russia’s President Putin seems to have admitted this can’t be piracy, although he maintains there is some other legal violation here somewhere since he alleges they tried to “seize the rig by force”.]

Can the Offenses Clause save Missouri v. Holland?

by Duncan Hollis

Things are continuing to gear up here in the United States for the big foreign affairs law case of the year — U.S. v. Bond, which, among other things may allow the Supreme Court to revisit one of its most significant foreign affairs law cases ever – Missouri v. Holland.  Bond asks two questions: (1) whether the Constitution limits Congress’s authority to legislate to implement a valid treaty if it intrudes on traditional state prerogatives, and (2) if the legislation in question — the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases to avoid issue (1) and, with it, the “scope and continuing vitality of . . .  Missouri v. Holland“.  Oral argument is set for November 5, 2013, and SCOTUSblog has its regular (and excellent) set of links to all the relevant briefs.

So far, most of the attention in the case has centered on Issue (1), asking whether the Necessary and Proper clause can serve as a vehicle for implementing U.S. treaty obligations, which otherwise might lie outside Congress’ authorities under Article I.  That, after all, was the central holding of Holmes’ opinion in Missouri and it’s the one that most scholars fear — or, hope, depending on their disposition — may be overturned by the current Court (for more on this see my earlier posts as well as the detailed exchanges between Rick Pildes and Nick Rosenkranz over a Volokh).  But, there may be other constitutional grounds for upholding the Chemical Weapons Implementation Act in addition to the Necessary and Proper Clause.  The U.S. Government, for example, has argued that the Commerce Clause also afforded Congress authority to pass that Statute.  This is not a surprising argument.  The Commerce Clause’s expanded jurisprudence is one of the main reasons Missouri v Holland has been so little tested in the decades following Holmes’ impassioned assertion of a dynamic reading of the treaty power.

Beyond the now-standard Necessary and Proper/Commerce Clause arguments, however, I was surprised to recently read about a third claim for constitutional authority — the Offenses Clause. In August, Professors Sarah Cleveland and Bill Dodge (who have both served as Counselors in the State Department Legal Adviser’s Office) filed an amicus brief arguing that the Offenses Clause authorizes Congress to define and punish offenses in implementation not just of customary international law, but U.S. treaty obligations as well (e.g., the Chemical Weapons Convention). They’ve now posted a scholarly exposition of their argument on SSRN.  Here’s the abstract:

The Offenses Clause of the Constitution gives Congress power “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” Past scholarship has assumed that the Clause allows Congress to enforce only customary international law. This article demonstrates that this conventional academic wisdom is mistaken and that the Offenses Clause constitutes an additional source of authority for Congress to implement certain treaty commitments. The Framers of the Constitution clearly understood the law of nations to include treaties, or what they called “the conventional law of nations.” The history of the Offenses Clause shows that it was intended to reach treaties and thus to facilitate compliance with the United States’ international commitments. Moreover, despite the prevailing view in the academy, Congress, the Executive, and the Supreme Court have shared this understanding of the Clause through most of our nation’s history.

The Offenses Clause provides a cautionary tale about the dangers of reading constitutional text without sensitivity to its historical background and demonstrates the need for care in translating that text into modern terms. Our argument also has significance for a range of contemporary contexts — from piracy to international counter-narcotics activity — and for the case of Bond v. United States, currently pending before the United States Supreme Court. Most fundamentally, our argument contributes to understanding the role of international law in our constitutional scheme. It underscores the importance that the Framers placed on crafting a national government with robust authorities to fully enforce treaties and customary international law.

I find myself fairly convinced of the paper’s historical claim — that the reference to the law of nations at the time of the Framing included U.S. treaty obligations.  Thus, I think their argument is one the Court can (and should) consider in the Bond case.  In doing so, however, I think there are a few areas where the Cleveland/Dodge position requires further exposition.  Let me highlight three after the jump.

A Reply to Goodman Re: War/Not War with Al-Qaeda

by Kevin Jon Heller

Ryan has a fascinating but problematic post today at Just Security in which he takes international-law scholars to task for opportunistically flip-flopping on whether the US is involved in an armed conflict with al-Qaeda. Here is the crux of his argument, taken from the post’s introductory paragraph:

Those arguments have been inconsistent with regard to one fundamental legal question: whether the US is, as a matter of law, in an armed conflict. In fact, a pattern has emerged over the years: opposition to different actions has alternated between arguing that the US is—or is not—involved in an armed conflict with Al Qaeda. It sometimes seems as though the preferred argument depends on how that threshold question—whether we’re in a war—affects the interests at stake.

I thought about writing a letter to the editor in response, but there is no guaranteed that Just Security would publish it — and there would be no way for anyone other than a Just Security member to join the discussion (Facebook and Twitter, as I’ve said, being inadequate media for dialogue.) So I thought I would reply on Opinio Juris and invite interested readers to comment here.

The basic problem with Ryan’s post is this: it conflates inconsistency of outcome and inconsistency of principle. In Ryan’s view, “war” with AQ is a simple binary: either the US has been or has not been at war with AQ. As he puts it:

What might have been a better path over the past twelve years and, more importantly, the way forward? At the very least: a consistent position that one legal situation (war) or the other (not a war) exists.

Ryan thus equates inconsistency of outcome with inconsistency of principle: if scholars have taken inconsistent positions about war/not war between the US and AQ, that must be because they have adopted inconsistent legal principles (opportunistically, no less) concerning the existence of war.

But that is a flawed understanding of international humanitarian law. The basic principle of conflict qualification, as I have pointed out many times before, is this: the existence of non-international armed conflict is a fact-specific determination, one that depends on the organization of the non-state actor and the intensity of hostilities between the non-state actor and a state. Conflicts evolve over time in terms of both organization and intensity, so peace can turn into NIAC and NIAC can turn into peace. And, of course, there are many other types of conflict: NIAC can turn into IAC (Libya when the West intervened on behalf of the rebels); IAC can turn into NIAC (Afghanistan with the toppling of the Taliban); IAC can turn into occupation and occupation can turn into NIAC (Iraq); IAC and NIAC can exist alongside of each other (which would be the case if the US started bombing Syria); and so on. The qualification matters, because the type of conflict affects everything from targeting rules to the detention regime (as Ryan well knows, having written very intelligently about detention of civilians).

Because conflict qualification, especially concerning the existence of NIAC, is an inherently fluid and fact-specific determination, it is impossible to infer inconsistency of principle with regard to the nature of the conflict between the US and AQ from inconsistency of outcome. It is completely possible to take a principled approach to conflict qualification and yet not conclude that “one legal situation (war) or the other (not a war) exists.” Indeed, I’d go further and suggest that the most unprincipled approach to conflict qualification is the one that the US has adopted. The USG has never made an effort to take conflict qualification seriously; it has simply assumed the existence of a global non-international armed conflict between the US and AQ since bin Laden “declared war” in 1996. (Hence the USG’s ability to claim with a straight governmental face that al-Nashiri was able to commit war crimes prior to 9/11 and prior to the AUMF.) The only principle behind the US position is expediency — the USG’s desire to have its “war” with AQ governed by IHL instead of by IHRL.

Let me be clear: I am not defending all of the scholars that Ryan mentions in his post. I have vast disagreements with some of them, and some of them may well be arguing opportunistically. But I suspect that, if we examined many of their positions, we would find that their supposed inconsistency actually reflects a good-faith effort to take conflict qualification far more seriously than the USG ever has. Specifically, I’m willing to wager that most of those positions were based on (1) a rejection of the idea that the US can be in a global NIAC with AQ, an idea that to the best of my knowledge no non-American scholar accepts; and (2) an insistence that although the US and AQ can be involved in NIACs in specific geographic areas — Afghanistan, Pakistan, Yemen, etc. — the existence of such NIACs has to not only be determined based on the situation on the ground (organization and intensity), but also needs to be re-assessed over time.

Let me end with a couple of examples. In “Turn 1,” Ryan chides Allain Pellet for claiming that it was “legally false” the US and AQ were at war after 9/11 and takes Antonio Cassese to task for calling it a “misnomer” to describe the US/AQ conflict as a “war.” Dig deeper, however, and both Pellet and Cassese were absolutely correct. Pellet’s article was written 10 days after 9/11, nearly three weeks before the US began bombing Afghanistan. At that point there was no armed conflict between the US and AQ. One attack, no matter how horrible, does not a (non-international) armed conflict make. And Cassese was not denying the possibility that the US and AQ could be involved in a non-international armed conflict; he was denying that the US and AQ could be involved in a “war” — a term that has always been reserved for armed conflict between states. So his claim, too, was accurate.

Emerson is right — “[a] foolish consistency is the hobgoblin of little minds.” The problem is not with international law scholars who have “flip flopped” on the qualification of the armed conflict between the US and AQ; the problem is with the USG’s insistence that it has be either/or. When it comes to IHL, very few complex legal issues admit of simple binaries.

Lower Courts Narrowly Interpret Kiobel

by Roger Alford

It’s been over five months since the Supreme Court rendered its landmark decision in Kiobel v. Royal Dutch Petroleum. A quick review of lower court decisions suggests that Kiobel marks the end of the Filartiga revolution in the United States.

The most significant lower court ruling to date is Balintulo v. Daimler AG where the Second Circuit rejected plaintiffs’ argument that Kiobel did not preclude claims based on foreign conduct when the defendants are Americans. Nor did the claims “touch and concern” the territory of the United States based on American interests to support the struggle against South African apartheid. In other words, according to the Second Circuit domestic conduct is required for an ATS claim to proceed under Kiobel.

The Supreme Court expressly held that claims under the ATS cannot be brought for violations of the law of nations occurring within the territory of a sovereign other than the United States…. If all the relevant conduct occurred abroad, that is simply the end of the matter under Kiobel…. In all cases, therefore the ATS does not permit claims based on illegal conduct that occurred entirely in the territory of another sovereign.

There are numerous district court cases that are in accord, dismissing ATS claims based on the absence of domestic conduct, regardless of the nationality of the defendants. There is not a single case in which the defendant’s American nationality has been sufficient to displace the presumption.

A few cases further clarify whether claims “touch and concern the territory of the United States … with sufficient force to displace the presumption against extraterritoriality.”

A magistrate judge in Mwani v. Bin Laden held that an attack on the U.S. embassy in Kenya plotted in part within the United States could overcome the presumption. “If any circumstances were to fit the Court’s framework of ‘touching and concerning the United States with sufficient force,’ it would be a terrorist attack that (1) was plotted in part within the United States, and (2) was directed at a United States Embassy and its employees.” By contrast, a federal court in Kaplan v. Central Bank of Iran held that a foreign terrorist attack that killed Americans but targeted another country would not be sufficient to overcome the presumption.

The case of Sexual Minorities Uganda v. Lively, involving an American defendant who allegedly led a campaign of persecution against the LGBT community in Uganda, represents a rare example of substantial conduct within the United States sufficient to displace the presumption. A federal district court in Massachusetts held that where an American defendant engaged in tortious acts that “took place to a substantial degree within the United States, over many years, with only infrequent actual visits to Uganda…. Defendant’s alleged actions in planning and managing a campaign of repression in Uganda from the United States are analogous to a terrorist designing and manufacturing a bomb in this country, which he then mails to Uganda with the intent that it explode there.” In other words, territorial conduct with extraterritorial injuries are sufficient.

Another district court emphasized that it was not sufficient to simply find some conduct within the United States. In Giraldo v. Drummond Company, Inc., a federal district court in Alabama held that even if certain corporate decisions were made within the United States to support human rights abuses abroad, the focus is not on finding some domestic conduct, but what type of conduct occurred at home and abroad. “Where a complaint alleges activity in both foreign and domestic spheres, an extraterritorial application of a statute arises only if the event on which the statute focuses did not occur abroad. Of course, the ATS focuses on the torts of extrajudicial killings and war crimes and … the tort at issue occurred abroad in Colombia, and not in the United States.” This opinion seems to follow Justice Alito’s concurrence, requiring the domestic conduct to violate the law of nations.

As to what constitutes the territory of the United States, a federal court in Al Shimari v. CACI International, Inc. suggested but did not decide that de facto sovereignty might be enough. “The Court finds inconclusive, at best, Plaintiffs’ support for their contention that the United States held de facto sovereignty over Iraq during the relevant period in this case…. It would be difficult to conclude that the United States, to the exclusion of all other involved nations, exercised complete jurisdiction over Iraq.” One wonders whether a claim based on human rights violations in a location where the United States did exercise de facto sovereignty, (i.e., Guantanamo Bay) might be enough.

So there you have it. It is still too early to reach any serious conclusions about Kiobel‘s progeny. But the early scorecard does not look promising for plaintiffs.

Welcome to the Blogosphere, Just Security!

by Kevin Jon Heller

Just Security is officially up and running. The lineup of contributors is amazing: the Editors-in-Chief are Steve Vladeck and Ryan Goodman; the Executive Editors are Mary deRosa, the ACLU’s Jameel Jaffer, Fionnuala Ni Aolian, and Beth Van Schaack; and the Founding Editors are too numerous too mention but all extremely well known. (I won’t play favorites by naming some of them.) Here is Steve and Ryan’s description of the blog:

Welcome to Just Security! We are delighted you found your way here, and we hope that you will return regularly. If you’re reading this, chances are that you’re interested in the topic that defines our blog: U.S. national security law and policy (or you’re related to one of us). We thought we’d open things up by saying a few words about this project in general, as well as our plans for today and beyond.

We have assembled an extraordinary group of some of the most important and influential minds on U.S. national security law and policy. They include former top attorneys from the Department of State, Department of Justice, and National Security Council; outstanding civil society attorneys from the United States and abroad; some of the most prominent law professors in the field; and other leading voices.

Our Board of Editors will provide both immediate reactions to and more reflective analyses of important U.S. national security issues. We hope to become a ready resource for decision-makers, analysts, and practitioners who address difficult U.S. national security law issues, and an invaluable reference for those simply trying to stay abreast of the daily developments in this ever-moving field.

Just Security is obviously intended to be the progressive counterpart to the very conservative — though always excellent — Lawfare, and there is little doubt the blog will be successful. It’s a must-add to one’s RSS reader.

I do, however, feel compelled to register my objection to one aspect of Just Security: the absence of comments. (Which is also one of the worst aspects of Lawfare.) The blog touts three ways it will “engage with [its] readers”: letters to the editor, which may or may not be published; Facebook; and Twitter. None are capable of genuine dialogue — although I suppose that letters to the editor can at least create some give-and-take, depending on how quickly and how often they are posted. Facebook, however, is useless; I have regularly left Facebook comments on Lawfare for a long time, and I have yet to receive a single response. And we all know that it is impossible to make substantive points via 140-character tweets.

I understand why blogs don’t want comments, moderated or otherwise. All blogs attract trolls, and dealing with trolls is no fun. But I think the occasional nasty comment is a small price to pay for the genuine dialogue that comments make possible; I have had some amazing debates with readers here at Opinio Juris over the years, and those debates would not have happened if our blog followed the Just Security/Lawfare model. I hope Ryan and Steve will reconsider.

Bashir Calls Everyone’s Bluff, Says He is Coming to UN General Assembly Meetings in New York City*

by Julian Ku

Wow! I kind of assumed all the posturing and tough talk from U.S. and ICC officials would scare off Sudan’s President Bashir from visiting NY next week to address the UN General Assembly.  But it appears he really is coming.

Sudanese President Omar Hassan al-Bashir, wanted by the International Criminal Court on genocide charges, said on Sunday he planned to attend this week’s U.N. General Assembly and had already booked a hotel in New York.

Washington has led calls for Bashir to face international justice over bloodshed in the now decade-old conflict in Sudan’s Darfur region, and a senior State Department official said last week that Bashir would “not receive a warm welcome” if he travelled to New York.

Although I think the U.S. has a legal obligation to allow Bashir to attend the meetings (and leave) unmolested, I am surprised the U.S. didn’t simply deny him the visa and dare the U.N. General Assembly or Secretariat to complain about it.  Were they really going to file protests about this? Were states in the GA really going to go nuts over this? And hasn’t anyone asked the U.N. Secretary General to state his views, so as to give the U.S. cover to deny him the visa?

Maybe the U.S. is going to take up the ICC’s invitation to arrest Bashir. But I just can’t imagine they would want that hassle just now.  Arresting a head of state is a dicey business, especially when you have no legal obligation to do so, and you would probably be violating other legal obligations to carry out the arrest (and you may spark more conflict back in Sudan as well).  It seems it would have been easier just to deny him the visa.

More likely then, the U.S. is really going to let Bashir attend, and although he won’t get a warm welcome, the U.S. will probably not arrest him.  U.S. Ambassador to the U.N. Sam Power may have a meltdown, especially if Bashir has reserved a room at the Waldorf Astoria (where she has a posh penthouse residence). Would love to see what happens if they bump into each other in the elevators…  And Mia Farrow has vowed to chase him down, so things could get ugly over there.

Seriously, though, I do think that an unmolested Bashir visit to the UN GA meetings would be further evidence for Eric Posner’s thesis that the ICC is facing serious decline (if not Doom) (But see Kevin’s rebuttal here).  I don’t think that the decline is the ICC’s “fault” (and I don’t think Posner thinks that either).  Rather, the decline of the ICC may simply be the result of the lack of political will in the U.S. Government, the other UN member states, and in the UN’s key institutions.  If Bashir is allowed to come to NY for the UN meetings, the lack of will among all of these players will be quite self-evident. Maybe we shouldn’t bother with the ICC if no one is going to actually support it when that support is needed.

*Right after this post went up, Mark Kersten reports that he hears that the visa hasn’t come through yet, which makes this post a bit premature, but hopefully still interesting!

Events and Announcements: September 22, 2013

by An Hertogen

  • The Honourable Justice Dalveer Bhandari – one of India’s most distinguished jurists – will visit York University’s Osgoode Hall Law School from September 22 to 26. RSVP to events can be found here and here.
  • The Vermont Journal of Environmental Law (“VJEL”) at Vermont Law School is pleased to invite you to attend the 2013 Symposium entitled “Rising Temps and Emerging Threats: The Intersection of Climate Change and National Security in the 21st Century,” held Friday, October 25, 2013 in the Chase Community Center at Vermont Law School. For more information and to register today, click here.

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

Weekend Roundup: September 14-20, 2013

by Jessica Dorsey

Another week has gone by at Opinio Juris with much to say about current events in international law and international relations. In fact, this week, we hosted an online symposium on the recent book by Jeffrey Dunoff and Mark Pollock, Interdisciplinary Perspectives on International Law and International Relations.

In other coverage this week, Julian argued on how the UN Charter does not necessarily constrain China in starting territorial disputes that involve sovereignty claims. He also commented here and here on the proposed visa application of Sudan’s President Omar Al-Bashir, who is trying to enter the United States for the upcoming UN General Assembly meetings, despite the arrest warrant for him from the ICC. Kevin also weighed in here on that subject, and Kristen argued that travel sanctions should be used against Bashir.

Kevin also pointed out the erroneous Al-Jazeera news report from Thursday that reported Saif al-Islam Gaddafi would appear in Tripoli, and pointed out that he appeared in Zintan instead (with his trial being adjourned until December in order to allow other defendants to be present). Kevin additionally discussed the current “score” in Syria events of Putin & Assad: 1, US: 0, and took issue with Eric Posner’s column in Slate on the coming death of the ICC.

As usual, we featured our news wraps and our conferences and events. Thanks for following us at Opinio Juris and have an enjoyable weekend!

Eric Posner on the Coming Death of the ICC

by Kevin Jon Heller

Eric Posner has a new Cassandra column at Slate, this latest one foretelling the doom of the ICC. There isn’t much point in disagreeing with his basic thesis; no one knows at this point — not him, not I — whether the ICC will succeed. It is possible, however, to take issue with a number of assertions that Posner makes in his article. Some are unfair; others are simply wrong.

If anyone ought to be prosecuted for war crimes, it’s this reviled leader, who almost certainly directed poison gas attacks against civilians. But as Joshua Keating explained in Slate, it’s not going to happen. This, just the latest blow to the ICC, illustrates once again why the prospect of international justice through global courts is ever receding—and why the court’s own days may be numbered.

This assertion falls into the unfair category. As Alana Tiemessen pointed out on twitter, the ICC can hardly be blamed for the failure of the Security Council (for now) to refer Assad to the Court. And, of course, the assertion simply ignores the fact that the Security Council has referred controversial situations to the Court in the past. Posner could have acknowledged Darfur and Libya. He could have acknowledged how the Darfur referral has made it considerably more difficult for Bashir to function as Sudan’s head of state. (See, e.g., the ongoing controversy over his desire to travel to the US to attend the UN General Assembly, which will never happen.) If Posner wanted to say something critical, he could have pointed out that the real problem is the Security Council’s failure to back up its referrals, either financially or in terms of enforcement. But that would have simply highlighted the fact that the problem is the Security Council, not the ICC.

Instead, the worst of the bad guys were tried at Nuremberg and in Tokyo. But the postwar proceedings faced a problem. Hitler’s and Tojo’s invasions of innocent countries—and even Hitler’s massacre of civilians at home—did not violate any rule of international law that came with personal criminal liability. Leaders were tried and punished nonetheless, but doubts about legitimacy lingered, since the trials lacked a basis in international law even while they condemned defendants for violating it.

Both unfair and wrong. Posner simply elides the difference between aggression, crimes against humanity, and war crimes with regard to retroactivity…

Use the Sanctions Power Against Bashir

by Kristen Boon

Recent commentary on Bashir’s request for a US visa to attend the 68th General Assembly has focused on US obligations to grant Bashir a visa under Section 11 of the UN – US Headquarters Agreement. See Julian’s post here. Pursuant to this agreement, there is little doubt that the US must permit his transit to the UN despite the fact that there are two outstanding ICC arrest warrant against him. Because the US is not a party to the ICC it has no obligations to cooperate with the ICC, although the US has been reminded, most recently by the Pre-Trial Chamber of the ICC that when the situation in Darfur was referred to the Court by the SC with the US’s support, Resolution 1593 (2005) “urge[d] all States and concerned regional and other international organizations to cooperate fully” with the Court.”    Thus while the US should cooperate, is not legally obliged to.  Moreover, it is common knowledge that many other countries on the transit route could intervene, and transfer him to the ICC in The Hague to stand trial.  And they may do so.

A mechanism that could be quickly employed to prohibit Bashir’s travel, however, is to place him on the “blacklist” under the existing sanctions regime against Sudan (Resolution 1591).  Pursuant to Para. 3(d), “all States shall take the necessary measures to prevent entry into or transit through their territories.”  The Committee’s guidelines are available here, and indicate the criteria for adding names to the blacklist.  At present, there are only four individuals on the list.  Indeed, it is not clear why the Sanctions Committee has not added Bashir, although one suspects the reason must be political.  Other individuals have been listed for their direct responsibility for violations of international humanitarian, human rights law and other atrocities. Bashir clearly meets these criteria as well.

If Bashir were added to the blacklist, all countries would be under an obligation to prevent his travel.  Moreover, because the Security Council would be acting under Chapter VII, this obligation would trump other treaties, including the UN-US Headquarters Agreement.  It was precisely this dynamic that led to litigation in European Courts when sanctions were implemented at the expense of human rights obligations.  While the Kadi and Nada decisions indicate that there needs to be a means to review listings by a judicial like process (at least for enforceability in the European context) one would be hard pressed to believe Bashir would raise such an argument.

The jurisdictional thresholds for the ICC and the Sanctions Committees are different.  The ICC proceeds against individuals who are alleged to have committed the gravest international crimes.  In contrast, under Article 41 of the UN Charter, individuals are added to blacklists because they violate the terms of existing sanctions and/or contribute to the threat to peace and security.  Automatic cross listing between the ICC and sanctions committees is not the right way to proceed because it may interfere with the presumption of innocence, but where a head of state has openly flouted a ICC warrant, and where he independently meets the criteria for inclusion on the travel ban and asset freeze, what better opportunity for the Security Council and the ICC to act together?  It would demonstrate coherent policy on peace and security issues, and joint condemnation of international crimes.

This is an important moment for the UN Security Council to back the ICC.  The Sudan Sanctions Committee should expeditiously add Bashir to the sanctions list which would place all states under a clear obligation to prevent his travel around the globe.  In addition to the chair, currently Her Excellency Mrs. Maria Cristina Perceval (Argentina), and two vice chairs, Australia and Azerbaijan, all Security Council members are on the sanctions committees.  One hopes that Russia and China will not stand in the way.

How China Could Conquer Asia with Six Wars Without Violating the U.N. Charter

by Julian Ku

One possible silver lining in Russia and China’s invocation of the UN Charter to block U.S. action in Syria is that both nations have bound themselves (at least in part) to the same norm.  But at least with respect to China, it is probably not bothered by the UN Charter’s limitations on the use of force because any of the wars it is likely to contemplate would be (at least arguably) consistent with Article II’s self defense obligations.

For instance, this astonishingly fierce article (in Chinese, translation here)  from a nationalistic website in China and republished in HK, lays out “Six Wars China Must Fight in the Next Fifty Years.”  Those wars would involve invasions of the following places in the next half-century:

1) Taiwan
2) The Spratly Islands and the South China Sea (kicking out Vietnam and the Philippines)
3) Southern Tibet (along the border with India)
4) Diaoyu Islands and Okinawa (kicking out Japan)
5) Mongolia
6) Siberia (Russia)

For every single one of these proposed wars, China would raise the banner of self-defense under Article 51 since it claims sovereignty over each of the territories it would be invading.  Sure, some of their territorial sovereignty claims are complete bunk (Siberia?!?).  But there are certainly plausible legal arguments behind the rest of them.

Now, this list of “six wars” is the stuff of Chinese nationalistic fantasies, although any of the first four conflicts could really happen in the next few years.  But from China’s perspective, the UN Charter places almost no restraints on it since it does not restrict China from recovering territory lost to foreign powers in its past.  So China can talk as much as it likes about the sanctity of the U.N. Charter, because it will never feel serious constrained by it.

As a bonus for those readers intrigued by the New Chinese Imperialism, I highly recommend viewing this CG animation video of a joint China-Taiwan military campaign to invade and occupy the Diaoyu Islands, kicking out the Japanese as they do so.  It is like a video game, complete with a last scene with a disturbing depiction of a Chinese nuke used against Tokyo.  No wonder Japan is beefing up its military.

The larger point is that I have never understood why everyone thinks the UN Charter will constrain military action since almost all conceivable large-scale inter-state wars will involve territorial disputes where sovereignty is contested. That is certainly the case with China and it would be the case between Nicaragua and Colombia, or Chile and Bolivia, etc.  Perhaps the UN Charter constrains some countries, but I doubt it will constrain China if it ever embarks on these insane but not inconceivable plans for Asian domination.

IL/IR Symposium: What Can IR Learn from IL?

by Jeffrey Dunoff and Mark Pollack

[Jeffrey L. Dunoff is the Laura H. Carnell Professor of Law at Temple University Beasley School of Law and Mark A. Pollack is professor of Political Science and Jean Monnet Chair ad personam at Temple University]

Many thanks to Opinio Juris – and to all of the Symposium participants – for a stimulating and informative discussion of the virtues and vices of international law and international relations (IL/IR) scholarship.

The Symposium highlights some of the ways that IL/IR research has enriched our understanding of the making, interpretation, and enforcement of international law.  Larry Helfer’s post provides a superb summary of what IL/IR scholarship teaches about the design of international legal agreements, and in particular of flexibility provisions.  In terms of interpretation, IL/IR scholarship has prompted a rediscovery of international courts by political scientists, who seek to explain patterns in international judicial behavior.  Finally, as Jana von Stein notes, IL/IR research has produced both increasingly systematic data collection on IL compliance, as well as sophisticated understandings of the diverse causal mechanisms behind law’s compliance pull on states.

However, our project seeks not only to identify “lessons learned,” but also to identify IL/IR’s weaknesses, blind-spots, and potential for further development.  The lively exchange between Richard Steinberg and Ian Hurd (see here, here, and here), as well as the thoughtful posts by Judge Joan Donoghue, Ed Swaine, Tim Meyer, and Ruti Teitel, suggest several ways that existing scholarship can be strengthened.

In this concluding post, we explore a different critique, namely that IL/IR scholarship is less interdisciplinary than its name implies, frequently consisting of a one-way application of IR as a discipline to IL as a subject. Continue Reading…

IR/IL Symposium: Overview and Conclusions

by Ruti Teitel

[Ruti Teitel is Ernst C. Stiefel Professor of Comparative Law at New York Law School and a Visiting Fellow at the London School of Economics. She is the author of Humanity’s Law (OUP 2012).]

Dunoff and Pollack conclude that interdisciplinary engagement between international law and international relations scholars has contributed to the understanding of international law in a number of areas. They mention the rise of new actors and fragmentation as among the areas where one can discern such contribution. But they also point out that such engagement is an invitation to cross the fact/value divide, enriching our understanding of legitimacy-the normativity underlying international law.  As they observe, “although we can identify substantial number of value-added concepts and empirical findings on IL /IR literature on law-making, we can also find substantial blind spots and gaps.” (631).

I would observe that this points to one of the most important challenges of interdisciplinary scholarship and engagement: clarity about the questions one is asking and both the possibilities and limits of a particular methodology to help answer those questions. Of course, understanding the effects of international law is a hugely important question. Only a sterile formalist (largely a stereotype) would not be interested in that question. But, as Dunoff and Pollack note, IR theory has developed primarily as a device for explaining state behavior-states themselves are
understood (with the partial but significant exception of constructivism) as the relevant agents. But many effects will only be grasped if we have the tools to observe and analyze the conduct of other actors, and so here we rightly see scholars such as Ryan Goodman and Beth Simmons
deploying a different set of social scientific tools. (More…)

IL/IR Symposium: Comment on von Stein

by Tim Meyer

[Tim Meyer is an Assistant Professor of Law at the University of Georgia School of Law]

As is de rigueur in discussions of compliance with international law, von Stein’s chapter quotes in the opening paragraph Louis Henkin’s statement that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time” (p. 477) – the claim that launched a thousand journal articles.  Appropriately, von Stein’s excellent review of the compliance literature returns to Henkin in conclusion, noting in sum that “we know, for instance, that it is not the case that almost all states respect their obligations almost all the time.”  (emphasis in original) (p. 495).  In between, von Stein provides a clear, concise, and illuminating review of theories of compliance with international law and the empirical evidence for and against, and empirical challenges in evaluating, these theories.  International law seems to drive states to conform to its mandates at least some of the time, and our understandings of the mechanisms at work is improving, if still in need of improvement.

In this comment, I want to suggest one way in which we can deepen our understanding of how international law affects state behavior. Specifically, I want to problematize the notion of compliance as a dependent variable.  Von Stein’s essay describes the state of the art in compliance studies, but as Dunoff and Pollack note the IL/IR literature consists overwhelmingly of the application of IR theories to international law.  Reconceptualizing how international law affects state behavior is a key way in which law can increasingly inform IL/IR scholarship. To put it simply, compliance – “the degree to which state behavior conforms to what an agreement prescribes or proscribes” (p. 478) – is undoubtedly a useful place to start studying how international law affects behavior, and great strides have been made in this area, but moving forward we need a conception of legal process that more accurately reflects how states actually implement and evaluate compliance with international law.
Continue Reading…

IL/IR Symposium: The Engines of Compliance

by Jana von Stein

[Jana von Stein is a Senior Lecturer in Political Science and International Relations at Victoria University of Wellington (New Zealand) and a Faculty Associate at the Center for Political Studies (University of Michigan)]

When do – and don’t – states comply with international rules? For instrumentalists (adopting Keohane’s –admittedly simplified– categorization of the literature as ‘instrumentalist’ and ‘normative’, the puzzle starts with the observation that no overarching power exists to enforce international law. If there is no ‘highest power’ to enforce rules, why follow them? The ‘engines of compliance’ are typically more diffuse than in domestic systems, but they are nonetheless real:

  • International inducements. Sometimes a state benefits enough from having others follow the rules that it pays the ‘cost’ of ensuring compliance itself, whether in the form of ‘carrots’ (e.g., trade concessions) or ‘sticks’ (e.g., economic sanctions). Inducements are typically decentralized and based on self-help, so their application can be uneven. Inducements also face typical collective action problems, and so often work best when a powerful state is doing the heavy lifting.
  • Reciprocity. Axelrod demonstrated long ago that reciprocity can be an engine of cooperation if the involved parties are sufficiently sure that they will interact into the future. The same logic holds for compliance, under certain conditions. Reciprocal noncompliance must harm the party that is tempted to renege: this is why (direct) reciprocity is rarely useful in international human rights law, but can work in the realms of trade and war conduct. Reciprocity is also problematic if the ‘punishment’ can’t be limited to the violator, as is often the case in international environmental affairs.
  • Reputation. For instrumentalists, reputation is a means to an end: a reputation for keeping promises can make it easier to secure cooperation more broadly or in the future. Reputation is important for predicting future behavior, not for punishing past actions. Scholars debate just how much reputation carries over from one issue-area to another, or from one government administration to another. What is more, concerns about reputation can sometimes push governments not to comply, for instance if they want to foster a reputation for protecting their interests or their friends.  Continue Reading…

Saif Does Not Appear in Tripoli — and Won’t Anytime Soon

by Kevin Jon Heller

In today’s weekly news wrap, Jessica flagged an article that said Saif was due to appear in court in Tripoli for the beginning of the pre-trial phase of the case against him, al-Senussi, and 36 (!) other defendants. The article was inaccurate, and was later updated to make clear that Saif was appearing in Zintan on unrelated charges — not in Tripoli. Indeed, the Zintan militia holding Saif recently made it abundantly clear that it has no intention of handing Saif over to the central government anytime soon — if ever. Just check out the militia’s statements:

“It is impossible to hand him over to Tripoli”, said a senior Zintani local official today under conditions of anonymity. “And you can put three red lines under the word ‘impossible’,” he added.  The reason, he said, was because “Tripoli is under the control of outlaws”.

He was believed to be referring to the alleged dominance of the Justice and Construction Party and the Muslim Brotherhood over the government and Congress and the large presence in the city of military units from Misrata and elsewhere.

[snip]

Today’s categorical statements reconfirm remarks by Zintan Local Council leader Mohamed Wakwak two months ago. At the beginning of July, he told this newspaper that Saif Al-Islam would not be handed over, in this case because Tripoli was in the hands of secularists and unbelievers.

It doesn’t get much more unequivocal than that!

As an aside, I did a six-minute interview about Saif and Libya with ABC 24 last night — Australia’s 24-hour public news channel. If you’d like to watch the clip, you can find it here. Live television is terrifying!

Weekday News Wrap: Thursday, September 19, 2013

by Jessica Dorsey

Should the U.S. Accept the ICC’s “Invitation” to Illegally Arrest Bashir?

by Julian Ku

An ICC chamber, at the request of the ICC Prosecutor, has issued a decision “remind[ing]” U.S. authorities of the two Arrest Warrants issued by the ICC, and “invit[ing]” U.S. authorities to apprehend Bashir and turn him over to the ICC.  This is not exactly surprising.

Still, it is worth noting that the ICC chamber reviews the legal landscape and it concludes (rightly in my view) that the U.S. has no legal obligation to arrest Bashir if he comes to the U.S.  This is true both because the U.S. is a non-party to the Rome Statute, but also because the UN Security Council’s referral of Sudan to the ICC was carefully worded so as to not place obligations on non-parties to the ICC.  That UNSC Resolution merely urges UN member states to cooperate fully.  It doesn’t require cooperation. I will also note, in response to Prof. Jordan Paust’s comments to an earlier post on this subject, that although the UNSC Res. 1591 did obligate member states to deny transit to certain individuals related to the Sudan conflict, Bashir does not appear to be on that list of people.   

So, as I argued in a prior post, the US-UN Headquarters Agreement almost certainly requires the U.S. to allow Bashir to attend and then leave the UN General Assembly meetings  The U.S. is further obligated to accord Bashir immunity as a head of state under customary international law.  Arresting Bashir would require the U.S. to violate both of these legal obligations (although arguably the head of state immunity cannot be invoked in this context).

If the U.S. arrests Bashir, they are violating at least one, and maybe two, important international legal obligations.  And, as the ICC chamber makes clear, the U.S. has no legal obligation to detain Bashir.  So from a purely legal point of view, this is a no-brainer: the U.S. should grant Bashir a visa, and let him come and go unmolested.

In this light, we seem to be back to the “illegal but legitimate” conversation that we were having over a possible U.S. strike into Syria.  Kevin’s post on that comparison makes a similar point. But here is a difficult question for international lawyers.  Arresting Bashir would plainly be illegal, but it would almost certainly be legitimate to most people, like Mia Farrow.  (I am in the minority of folks who think such an arrest is unwise since its repercussions in Sudan might be severe.) Still, is legitimacy enough to act illegally?  And if it is, why wasn’t that standard good enough to justify a US strike into Syria?

IL/IR Symposium: Reply to Judge Donoghue

by Joost Pauwelyn and Manfred Elsig

[Joost Pauwelyn is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva and Manfred Elsig is Associate Professor of International Relations and Deputy Managing Director of the World Trade Institute of the University of Bern.]

We are extremely grateful for Judge Donoghue’s balanced and thoughtful comments.  We really appreciate the insights from someone who is actually operating from within an international tribunal.

We would like to follow up on the argument that “outside observers can only draw inferences about motivation, based on observable behavior … Lacking direct evidence of motivation, the scholar is left with inference”.

We agree with Judge Donoghue and would like to push this debate a little further. While we observe behavior (e.g. a ruling) arrived at through a type of interpretation (which can be explicitly stated, merely implied or just a “façade”), this behavior is a collective decision of a court and is a result of deliberation and negotiation among a number of individuals. The challenge for researchers is to find out how influential certain actors were and what arguments prevailed. This information remains in the black box of judicial decisions. We know a lot about why courts have been created and we have a fairly good understanding of implementation and compliance. This missing part is in the middle. Our chapter tries to push the research frontier on this part.

From a researcher perspective, it might be of interest to have access to more information, such as minutes of sessions when the members of a court met, draft texts that evolved over time or background notes or issues papers prepared by law clerks or secretariat lawyers advising the tribunal or individual judges.  These would allow us to reconstruct and process-trace the internal debates. Such improved access is of course controversial. It would not only require an official policy to store this type of information and to allow researcher to get access to this data at some later point in time, such ex post transparency obligations may also have unintended consequences on the working of the tribunals (and individual members/staff). At the same time, tribunals and courts are legitimate institutions created by mostly democratic states. They follow democratic principles and the wider public has a right to know how they work. For instance, the WTO has developed a policy to declassify information about negotiations. Improved transparency could be helpful for researchers to uncover patterns and trends (help research to be less speculative and more fact-based). In sum, it would require striking a balance between access to information and sufficient time lags between the deliberation and the release of information so state principals cannot – based on scholarly work – sanction the behavior of serving members of a tribunal.

IL/IR Symposium: Comment on Pauwelyn and Elsig

by Joan Donoghue

[Joan Donoghue is a Judge on the International Court of Justice.] 

Interdisciplinary Perspectives is an important contribution to the international law/international relations (IL/IR) literature that deserves the attention of scholars and practitioners alike.  I am grateful to the editors for inviting me to comment on the interesting chapter by Joost Pauwelyn and Manfred Elsig.

My first exposure to the IL/IR literature was in the early 1990s, when my particular interest was the role that international agreements play in addressing environmental concerns.  This literature has helped international lawyers to look beyond treaties to regimes, and has drawn our attention to the distinction between compliance and effectiveness.

Serving as a judge on the International Court of Justice (ICJ), I have had the opportunity again to study the IL/IR literature, as I have pondered the role that an ICJ judgment plays in the resolution of a dispute.  There have been studies of compliance with the judgments of the ICJ and other tribunals. In addition, I have been pleased to see scholarly exploration of the more nuanced question of the effectiveness of judgments of tribunals, which calls for reflection of the goals of the tribunal (effective as to what?) and for an examination of the linkages between tribunal outputs and the roles of other actors, such as other UN organs, regional organizations and non-party states.  Many of the authors represented in the present volume are important contributors to the study of international tribunals.

Interdisciplinary Perspectives demonstrates that the IL/IR field is diverse and maturing.  At the same time, the editors do not overstate its potency.  Like Anne-Marie Slaughter in her retrospective at the close of the volume, the editors are less “starry-eyed” (p. 624) than were some earlier adherents.

Much as I welcome the study of international tribunals by IL/IR scholars, I also appreciate that there are obstacles to applying social science disciplines to these institutions.   Several challenges come to mind:  Continue Reading…

IL/IR Symposium: The Politics of Treaty Interpretation

by Joost Pauwelyn and Manfred Elsig

[Joost Pauwelyn is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva and Manfred Elsig is Associate Professor of International Relations and Deputy Managing Director of the World Trade Institute of the University of Bern.]

In principle, the Vienna Convention rules on treaty interpretation apply equally to all treaties and all international tribunals.  In practice, however, we observe a wide variation in methods and choices of treaty interpretation: across tribunals, in different policy areas, and even before the same tribunal looked at over time.

The international relations (IR) literature has largely overlooked the factors that explain the extent and scope of treaty interpretation. Although there is an extensive normative literature in international law (IL) as to the right way to interpret, empirical work still lacks mid-range theories to account for the observed variance of behavior across international tribunals. This chapter tries to fill this gap by providing a conceptual toolkit inspired by IL and IR theories to approach (i) the various types of “interpretation choices” (we describe five such choices, see table below) and (ii) underlying factors that may drive or explain these choices, distinguishing between factors related to “demand-side interpretation space” and “supply-side interpretation incentives”.  We provide illustrative examples to tease out our explanatory framework looking at a variety of tribunals (ICJ, ICC, ICTY, ECtHR, GATT/WTO, ECJ etc.) but do not engage in proper empirical testing.

As to the importance of treaty interpretation, two caveats apply. First, our claim is not that treaty interpretation is always the crucial factor in the outcome of disputes. In some cases, the tribunal’s establishment of the facts rather than the law is more important. Second, although we believe that a tribunal’s stated method of interpretation influences outcomes (especially where a court’s discretion is bound by a particular method selected by earlier courts), we do acknowledge that, in some cases, a tribunal’s interpretative method may be little more than an ex post justification or “façade” for an outcome reached on other grounds. (Table 1)

Explaining Variation:

We suggest that variation of interpretative methods across tribunals is not randomly distributed. We realize that the factors we list here are not exhaustive and sometimes overlap. Still, we believe that the framework captures the essential drivers and offers a useful way to distinguish between them. The choice of interpretation (or the mix) is a result of the interaction of two variables: “interpretation space” (largely determined by treaty negotiators or principals setting up the tribunal) and “interpretation incentives” (experienced mainly by the judges on international tribunals). (Table 2)

Interpretation space (the demand side) is defined by the degree of contract completeness and oversight of principals.  We conjecture that the greater the incompleteness and the more difficult for principals to collectively act the greater this space within which international tribunals can (or have discretion/freedom to) act.

Interpretation incentives (the supply side) are a result of institutional features and guiding norms that differ from one tribunal to the other. As to institutional features we discuss a tribunal’s lifespan, the composition of its constituency, and institutional competition. As to norms, three factors influence the supply side of interpretation: legitimacy, interpretative community, and legal tradition.

In summary, we argue that the greater the interpretation space the more likely tribunals are to use expansive interpretation strategies. This should be reflected in particular in teleological, evolutionary, and gap-filling interpretation techniques. However, this interpretation space interacts with a crucial second factor: a tribunal’s motivation (interpretation incentives). Having the space to engage in expansive interpretation strategies not always leads to such strategies: space is a necessary but not a sufficient condition and how this space is filled out depends on interpretation incentives.  We have listed institutional factors and norm-type factors that condition a tribunal’s motivation. These supply-side incentives may, in turn, steer the tribunal toward more or less expansive strategies. At this stage, we only provide examples to illustrate our framework. The next step would be to explore in greater detail the interaction effects between interpretation space and interpretation incentives to offer more specific hypotheses to be tested empirically.

Weekday News Wrap: Wednesday, September 18, 2013

by Jessica Dorsey

Welcome to Bashir in Wonderland, Alice

by Kevin Jon Heller

According to Reuters, the US is dropping hints that it will grant Omar al-Bashir a visa to travel the UN for the annual meeting of the General Assembly:

A senior State Department official said Bashir would “not receive a warm welcome” if he were to travel to the U.N. meeting. The official said Bashir had applied for a visa to attend the opening of the annual U.N. General Assembly.

“I am not going to speak to the specifics of this case, but typically as a host nation the United States is generally obligated to admit foreign nationals, but visas broadly speaking can be restricted,” the official added.

I completely agree with Julian that denying Bashir a visa would violate the UN-US Headquarters Agreement. But to say, as one intelligent commentator did on twitter earlier, that “the USG really has no choice in the matter”? Isn’t this the same USG that just a week ago insisted that it was willing to violate Art. 2(4) of the UN Charter by attacking Syria in order to supposedly “uphold” international law? So the USG can violate the UN Charter’s prohibition on force — a peremptory norm, no less — in order to uphold the customary prohibition on chemical weapons, but it cannot violate an agreement with the UN in order to uphold the customary prohibition — also a peremptory norm — against genocide? Even though the US has always led the charge to describe Bashir as a genocidaire and has supported the ICC’s efforts to prosecute him?

The mind reels.

IL/IR Symposium: Comment on Helfer

by Edward Swaine

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

Larry Helfer is the perfect author for a chapter on the topic of treaty flexibility mechanisms: he writes from both theoretical and empirical perspectives, has a wide range of substantive expertise (including in human rights and trade, two fields that are central to this topic), and has a penetrating and remarkably clear style of analysis.  He deliberately provokes a number of questions in his chapter and post; because I’m conscious that blog readers themselves have numerous “exit” options, like closing this tab, I will try to be brief and touch on only a few.

This topic includes a wide variety of behaviors – reservations, denunciations, suspension, differentiated treatment, amendment, withdrawal, and so forth – and one set of issues concerns nomenclature and taxonomy.  Larry has a state-of-the-art table in his chapter laying out and sorting the flexibility options.  Personally, I have never been happy with describing certain formal flexibility mechanisms (those involving temporary relief from treaty obligations) as “escape” clauses, supposedly as distinct from “exit” clauses that entail permanent cessation of status as a treaty party.  Prisoners do not “escape” from Alcatraz with a view to returning; a word like “avoidance” better captures the idea in this context.  More generally, the categorization of flexibility mechanisms has certain routine difficulties – the basic problem of trying simultaneously to sort on when a state seeks flexibility and what its legal consequences are; conflicting tendencies both to include and exclude certain noncompliance acts as informal flexibility mechanisms; and an inherently unsatisfying distinction between so-called unilateral mechanisms (not always exploited in a completely autonomous fashion) and collective mechanisms (frequently, one suspects, prone to exploitation or capture by particular states).  Typology is rarely gripping, and I don’t want to mislead anyone into thinking that Larry’s chapter is focused on these questions or has unique difficulties with them.  However, they matter because we are concerned with the relationship among these mechanisms, principally in order to describe the choices states confront and make; he highlights this in his post as well.  In addition, beyond worrying whether these descriptions have formal integrity, we should also try to explore whether these are in fact the way state representatives think about the alternatives.  It might be the case, for example, that they focus predominately on collective rather than unilateral forms of flexibility, or informal rather than formal avenues, either of which might marginalize other kinds of inquiries.

A second set of issues concerns the proper perspective on these questions.  Continue Reading…

IL/IR Symposium: Flexibility in International Agreements

by Larry Helfer

[Larry Helfer is the Harry R. Chadwick, Sr. Professor of Law Professor of Law at Duke University School of Law]

I am delighted to participate in this Opinio Juris book symposium on Jeff Dunoff and Mark Pollack’s excellent edited volume. My chapter on “Flexibility in International Agreements” was improved by their many helpful comments and suggestions. This brief post summarizes a few of the chapter’s major themes.  Citations to all references can be found in the online and print versions of the chapter.

Government officials, international lawyers, and diplomats have long been interested in shaping the form and content of treaties to manage the risks of international cooperation. These actors have responded to these risks with an diverse array of flexibility mechanisms, including unilateral reservation and declaration clauses; entry-into-force requirements; limitations on territorial application; duration provisions; amendment and revision procedures; and rules governing suspension, withdrawal, and termination.

In addition to these formal mechanisms, a range of informal practices can enhance the flexibility of treaties.  Such practices include ad hoc supplementary accords, understandings, traditions, conventions, gentleman’s agreements, de facto modification of treaty obligations through conduct, auto-interpretation of ambiguous terms, and nonparticipation in treaty activities.

A principal challenge facing treaty negotiators is to select an appropriately constrained suite of flexibility mechanisms that facilitate agreement among states ex ante while deterring opportunistic uses of those mechanisms ex post after the treaty enters into force. Flexibility tools that are too easy to invoke will encourage self-serving behavior and lead to a breakdown in cooperation. Tools that are too onerous will discourage such behavior, but may prevent the parties from reaching agreement in the first instance, or, if agreement is reached, may lead to widespread violations if the costs of compliance increase unexpectedly.

Over the last decade, international law and international relations scholars have devoted growing attention to treaty flexibility tools. Continue Reading…

Weekday News Wrap: Tuesday, September 17, 2013

by Jessica Dorsey

Another Research Bleg

by Kevin Jon Heller

Does anyone have a copy of Bin Cheng’s article “International Law in the United Nations,” 8 Yearbook of World Affairs 170 (1954)? It’s not available online, and our library doesn’t have that journal…

Can the U.S. Legally Deny a Visa to Sudan’s President Bashir? Nope.

by Julian Ku

U.S. Ambassador to the U.N. Samantha Power and the U.S. State Department are using unequivocal language to condemn Sudan’s President Omar Bashir’s application for a visa to attend the U.N. General Assembly meetings in New York.  But this tough talk is probably just hot air, since it is likely the U.S. is going to grant him the visa.  Here is the State Department’s reaction:

State Department spokeswoman Marie Harf declined to comment Monday on whether the visa would be granted but said “we condemn any potential effort” by him to attend the U.N. meeting.

She said before visiting the United Nations in New York, Bashir should present himself to the International Criminal Court [ICC] in the Hague, which has indicted him for war crimes in Sudan’s Darfur region.

The U.S. ambassador to the United Nations, Samantha Power, echoed those comments, saying Bashir’s proposed trip would be “deplorable, cynical and hugely inappropriate.”

Why didn’t Harf or Power just say that the U.S. would deny Bashir the visa? Because the U.N. Headquarters Agreement with the U.S. makes it pretty clear that the U.S. should not “impose any impediments to transit to or from the headquarters district of (1) representatives of Members or officials of the United Nations….”

The only exception to this I am aware of is the so-called “security exception” imposed by the U.S. Congress when it approved the Headquarters Agreement in 1947.  But that exception is about the right of the U.S. to protect its security, and it is hard to see that Bashir is a security threat.  (Neither, it appears was Yassir Arafat, who was denied a visa back in 1988, but whose status as a member of a UN state or organization was a little questionable).  For some good analysis of the issues, see Fred Kirgis here.

Now the U.S. might then go ahead and arrest Bashir upon entry, although that would implicate other laws and probably still violate the Headquarters Agreement. I doubt that the U.S. (as a non-party to the ICC) has any obligation to arrest Bashir, but I think they could do so consistent with U.S. law assuming President Obama lifts Bashir’s head of state immunity.  This would cause huge chaos in Sudan, but it would be legal under US law.

It is possible that despite the Headquarters Agreement, the U.S. may simply not grant him the visa. If so, it will be interesting to see whether the U.N. Legal Counsel raises the same objections that it did back in the Arafat kerfuffle (doubtful).  Maybe some backdoor dealings with the UN Secretariat could help smooth the way for the U.S. to deny Bashir the visa. But the UN might feel it is setting a bad precedent there as well.

If Bashir persists, this could cause some serious headaches for all concerned.  Which is why the U.S. is trying to talk him out of applying for that visa.  It’s their best hope of keeping him out of New York.

IL/IR Book Discussion: Beyond the “Isms War”?

by Jeffrey Dunoff and Mark Pollack

[Jeffrey L. Dunoff is the Laura H. Carnell Professor of Law at Temple University Beasley School of Law and Mark A. Pollack is professor of Political Science and Jean Monnet Chair ad personam at Temple University]

One of the most difficult choices in our book, and one of the most contentious discussions at two book workshops, was about how to approach the question of “theory.”  Our approach was to identify four research traditions in IR that had been invoked productively by IL/IR scholars – namely, realism, institutionalism, liberalism, and constructivism – and ask four leading scholars to review and identify how each tradition had been adapted and developed to explore the making, interpretation and implementation of international law.

Doing so, however, posed two problems.  First, it privileged IR theory over international legal theories.  We agreed with this critique, but we felt that the centrality of IR theories in the IL/IR literature in fact reflected our view of the literature more broadly, which is that what was labeled IL/IR scholarship was not primarily interdisciplinary in nature, but represented the application of IR theory and methods to international law as a subject.  We see this imbalance between IR and legal theory as a lamentable feature of contemporary IL/IR scholarship – a point to which we will return in a subsequent post – but one that accurately reflects the current state of the field.

Second, a number of our participants were concerned that, in selecting these four theories and asking our authors for canonical statements of each, we were reifying distinct, non-overlapping theories, and thus aggravating a decades-long “isms war.”  Far better, some contributors suggested, to do away with the isms altogether, in favor of a “non-paradigmatic approach.”  Despite such concerns, our own view was that realism, institutionalism, liberalism and constructivism, as distinct theoretical research programs, have been the intellectual nurseries within which scholars have developed and refined theories and testable hypotheses about factors such as power and distribution (realism), information and institutions (institutionalism), domestic and transnational society (liberalism) and norms and ideas (constructivism).  In this symposium, for example, Richard Steinberg makes a strong case for the distinctive contributions of realist theories focusing on states, state interest, and state power.
Continue Reading…

IL/IR Book Discussion: Steinberg Reply to Hurd

by Richard Steinberg

[Richard H. Steinberg is Professor of Law at the University of California. Los Angeles; Visiting Professor of International, Comparative & Area Studies at Stanford University; and Director of the Sanela Diana Jenkins Human Rights Project.]

I am grateful for Ian Hurd’s thoughtful comment on my book chapter partly because it supports my claim that that everyone borrows from the realist tradition.  Moreover, Hurd’s comment inadvertently recapitulates a narrow structural realist view of international law (recalling the associated dysfunctional debate of the 1980s) that I intended my chapter to supersede, offering me the opportunity here to underscore the approach of my chapter, which sees the utility of employing a longer-lived realist tradition for understanding international law . . .

First, Hurd expresses apparent disappointment that most of my claims are completely acceptable to him and constitute orthodoxy among international relations scholars.  My claims are “so encompassing that there is little to disagree with.”  For example, Hurd agrees with me that analysts of international politics should take into account states, state power, and state interests, and that states strive to use their power to create a legal order that favors their interests.  Apparently, my clear restatement of concepts rooted in the realist tradition, going back two and a half millennia, is not disagreeable—except to the extent that Hurd thinks my restatement is not realism.  “The problem here,” Hurd writes, “is that few scholars of any stripe would deny these premises or empirical patterns” and so Hurd is “doubtful” that “this is ‘realism.’”  But the fact that these premises and patterns are broadly accepted does not negate the fact that they are rooted in the realist tradition—the mode and level of analysis common to people like Thucydides, Machiavelli, and Morgenthau.  These premises and patterns are certainly not the preoccupation of the liberal tradition, with its focus on individuals and nonstate actors as drivers of state interests and action, nor of constructivism, with its focus on the social roots of epistemologies, norms, and interests.

Hurd’s declaration that these realist premises and patterns are broadly accepted is gratifying to those who have identified themselves with the realist tradition in their understanding of international law—but who in the last thirty years have been intellectually flogged for doing so by those who have attacked a straw-man version of realism described in my chapter.  For Hurd, the shortcoming with my chapter seems to be that a correct distillation of the realist tradition offers little to disagree with.  Sorry to disappoint.  As stated in the last line of my chapter:  Perhaps everybody is still a realist.

So, what does Hurd disagree with?  Continue Reading…

IL/IR Book Discussion: Comment on Richard Steinberg, “Wanted Dead or Alive: Realism in International Law”

by Ian Hurd

[Ian Hurd is an Associate Professor in Political Science at Northwestern University]

Steinberg opens his chapter with the line that “realism is the theory that international lawyers love to hate.” But he goes on to present a version of realism that is so encompassing that there is little to disagree with.

Realism, he says is about “the state, state power, and state interests” (147). He emphasizes that state power plays a role in making international law and in shaping states’ responses to international law. Among other things: “powerful states (or their rulers) conclude treaties to advance state interests…. Hence, powerful states could sometimes impose international law on weaker states, and sometimes states could agree among themselves on issues of common interest” (147). He also notes that powerful states use law to shape the capacities of others, which implies that they gain some advantage from this (157). International law is therefore a product of state power, and a contributor to it. IR/IL scholarship must focus on the complex dynamics among power, interests, and law.

As a description of some key elements of international politics this has much to recommend it. What is left of international politics if one leaves out states, state power, or state interests? There are many non-state forces in international relations but many are interesting for how they connect with or contradict state power. Who would deny that powerful states often evade their legal obligations, or that they strive to use their power to create a legal order that favors their interests? State agency is not absolute and it is shaped by international legal forms among other things, but one cannot deny that it exists.

But therein lies the problem — it takes on so much that it is hard to see what a non-realist approach to IR/IL could be.

Steinberg sets out to make essentially two points: first, that scholars of international law should pay more attention to power, especially state power, and its relation to international law; and second, that to do is called ‘realism.’
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IL/IR Book Discussion: Wanted- Dead or Alive: Realism in International Law

by Richard Steinberg

[Richard H. Steinberg is Professor of Law at the University of California. Los Angeles; Visiting Professor of International, Comparative & Area Studies at Stanford University; and Director of the Sanela Diana Jenkins Human Rights Project.]

“Realism” is the theory international lawyers love to hate. Dozens of commentators have attacked realism or written its epitaph. Some commentators have even asked: is anybody still a realist?

Many international law (IL) scholars challenge “realism” because most think it means that international law is epiphenomenal and so devoid of meaning – which could make their jobs irrelevant, wasteful, and quixotic.  But they also seem to love realism – or a version of it – because the misunderstood and mischaracterized structural realist straw-man claim that “international law does not matter” serves for them as the perfect foil for arguments that international law (IL) is important.  It is the null hypothesis that enables international lawyers to show that their argument and life’s work does have meaning.  There’s another reason IL scholars may dislike realism: it is seen as an amoral theory, at best.  And it offers a basis for attacking the feasibility of much of the normative work that espouses changing the status quo in international law.  In IL, a field that remains driven largely by normative agendas, realists constantly raise annoying facts and analyses that spoil the party.  Finally, realists don’t see nearly as much customary law in the world as most international lawyers who aspire to build a more legalized world order.  What’s not to hate?

This book chapter argues that realism remains very much alive, not only because international lawyers have kept it alive by attacking a straw-man misinterpretation of the structural realist variant, but also because it is a useful tool for positive analysis of international law: even its structural realist variant (correctly understood) has heuristic power, and realist concepts may be hybridized with insights of other approaches – for example, cooperation theory in economics, liberalism, social construction theory, or empiricism – to constitute a valuable research program in international law, with substantial explanatory and predictive power. Finally, realism is critical for the advancement of normative agendas in international law.  Realism’s epitaph is premature. Realism in international law remains alive and vibrant.
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Introducing Interdisciplinary Perspectives on International Law and International Relations: The State of the Art

by Jeffrey Dunoff and Mark Pollack

[Jeffrey L. Dunoff is the Laura H. Carnell Professor of Law at Temple University Beasley School of Law and Mark A. Pollack is professor of Political Science and Jean Monnet Chair ad personam at Temple University]

We are very grateful to our friends at OJ for hosting this symposium, which we trust will continue the work begun in our recent edited volume, namely providing a critical assessment of the innovations and contributions, as well as the lacunae, biases and blind spots, of international law and international relations (IL/IR) scholarship.  In this post, we kick off the discussion by providing a brief introduction to international law/international relations literature; discussing the motivation behind, and aims of, Interdisciplinary Perspectives on International Law and International Relations: The State of the Art; and identifying one significant conceptual shortcoming found in much IL/IR scholarship.

The Fall and Rise of IL/IR

The disciplines of international law (IL) and international relations (IR) both seek, albeit in different ways, to understand the causes and consequences of international cooperation, in general, and international legalization, in particular.  Perhaps not surprisingly, then, for several decades prior to World War II, practitioners from both fields pursued common research interests.

However, the cataclysm of World War II brought this era of disciplinary convergence to a crashing halt.  Influential political scientists, such as Morgenthau, Kennan and Carr, argued that state actions were driven by national interests, and that, as Kennan wrote, international law was “too abstract, too inflexible, too hard to adjust to the demands of the unpredictable and the unexpected” that mark international affairs. A dominant school of “realism” argued that “law,” as understood in the domestic sense, could not serve as a meaningful constraint on states’ pursuit of the national interest in an anarchic international system, and for many years thereafter IR scholars paid little attention to international law or international legal scholarship.  One consequence was a decades-long mutual estrangement between the two disciplines.

This period of mutual neglect began to ebb only with the end of the Cold War, and the increased salience of international norms and institutions.  Continue Reading…

Book Symposium: Interdisciplinary Perspectives on International Law and International Relations, by Jeffrey Dunoff & Mark Pollack

by An Hertogen

This week, we are hosting a symposium on Interdisciplinary Perspectives on International Law and International Relations: The State of the Art, edited by Jeff Dunoff and Mark Pollack. Jeff and Mark will introduce the book later today, but here is the abstract:

Interdisciplinary Perspectives on International Law and International Relations: The State of the Art brings together the most influential contemporary writers in the fields of international law and international relations to take stock of what we know about the making, interpretation, and enforcement of international law. The contributions to this volume critically explore what recent interdisciplinary work reveals about the design and workings of international institutions, the various roles played by international and domestic courts, and the factors that enhance compliance with international law. The volume also explores how interdisciplinary work has advanced theoretical understandings of the causes and consequences of the increased legalization of international affairs.

Each day, one of the authors will introduce a chapter, followed by a comment. Richard Steinberg will be the first out of the blocks today, with his chapter “Wanted-Dead or Alive: Realism in International Law”, with Ian Hurd as commentator. Tomorrow, Ed Swaine will comment on Larry Helfer‘s chapter on flexibility in international agreements. On Wednesday, Judge Joan Donoghue will provide her perspective on Joost Pauwelyn and Manfred Elsig‘s chapter, and on Thursday, Tim Meyer and Jana von Stein will take the stage. On Friday, Ruti Teitel, Jeff Dunoff and Mark Pollack will wrap up the discussion with a general overview.

We believe we have a great lineup of participants, but would love to complete it with our readers, so please join the discussion in the comments!

Weekday News Wrap: Monday, September 16, 2013

by Jessica Dorsey

  • UN chemical weapons inspectors have handed their report into an alleged gas attack in Syria to UN Secretary General Ban Ki-moon.
  • Secretary Ban stated in a UN meeting that an expert team’s report will likely confirm the use of chemical weapons in the August 21 attack on Damascus.
  • At PhD Studies in Human Rights, a post discusses Secretary Ban’s comments and the presumption of innocence.
  • French President Francois Hollande called for a U.N. resolution on Syria backed by the threat of punitive action to be voted by the end of this week.
  • The joint Kaesong industrial zone between North and South Korea has reopened, five months after it was closed by military tensions and threats of war.

Events and Announcements: September 15, 2013

by Jessica Dorsey

Calls for Papers

  • A call for papers has been issued for the 2014 Barcelona Workshop on Global Governance, happening January 9-10, 2014. The theme is Networks in Global Governance and the call is here.
  • The Society of International Economic Law has posted a call for papers ahead of its Fourth Biennial Global Conference, to be held in Bern, Switzerland and hosted by the World Trade Institute (WTI) of the University of Bern, Switzerland on 10-12 July 2014. The Conference Theme will be Regulatory Challenges in International Economic Law: Convergence or Divergence? Paper, poster and panel proposals must be submitted by Monday 4th November by Noon GMT via email to siel14 [at] wti [dot] org.
  • RGNUL Financial and Mercantile Law review, is a student run, peer review online review, published bi-annually. We have issued a call for papers, which can be accessed on our website (rfmlawreview.org). Our review primarily focuses on South Asian, International and South East Asian laws. We are looking for articles (25 to 30,000 words), notes (8-10,000 words), reviews (10,000 words) and essays (5,000 words). The last date for submissions is the 15th of November. The review is published by Rajiv Gandhi National University of Law, Patiala, India. You can find out more on the website here

Events

  • On September 20th, Fordham University Law School will host a symposium on the complex and shifting nature of citizenship rights in a post 9/11 world, which will address the following questions: How have the post 9/11 legal and policy battles affected the legal rights of citizens and non-citizens? How can we best understand the tensions between the state’s duty to protect its citizens and its desire to protect individual rights and liberties? Has the vigilance about terrorism weakened the protections associated with citizenship, particularly with respect to ethnic and religious minorities? One of the panelists is our own Peter Spiro. More information can be found here and you can register here.
  • On September 27-28, 2013, the World Trade Institute will host World Trade Forum 2013. The theme is Trade Cooperation: The Purpose, Design and Effects of Preferential Trade Agreements and the program is here.
  • On November 15, iCourts will host a conference on The Future Role of the European Court of Human Rights in Copenhagen. The program is here.

Announcements

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

Brief Thoughts on the Russia-US Deal (and No, I’m Not in Favor of Force)

by Kevin Jon Heller

On both twitter and the blog, readers seem to have inferred from my previous post that I’m somehow disappointed that the US-Russia chemical-weapons deal does not automatically allow force for noncompliance. I suppose that’s my fault; I tend to assume when I write that readers have at least some prior knowledge of my politics. So let me be clear: I am categorically opposed to the US using military force against Syria in the absence of Security Council authorization. (And I’d be very skeptical of it with authorization, but at least it wouldn’t be illegal.)

So what do I think of the US-Russian deal? For what it is, and assuming Assad complies, it seems like a good idea. Anything that reduces Syria’s stockpiles of chemical weapons is positive. Although I don’t think Assad ordered the Damascus attack, I have no doubt he would use chemical weapons if (as seems unlikely at that this point) the rebels ever threatened to overthrow his regime. And of course someone in the Syrian military used chemical weapons, so it would be great if that could not happen again. I also have little doubt that the rebels would use chemical weapons if they could, so anything that limits that possibility, as well, is a good thing. I also hope that the deal will put pressure on other states in the region — Israel and Egypt, in particular — to ratify the Chemical Weapons Convention and destroy their own stocks of the weapons.

That said, my central critique of the US obsession with chemical weapons still stands: they are only a very minor part of the conflict. The real problem is the systematic violence the Assad regime has unleashed against its own people with conventional weapons — and the equally unconscionable, if less intense, violence inflicted on those same people by the rebels. This deal not only does nothing to address that violence, it significantly distracts attention from it. When was the last time the media focused  on anything in Syria other than chemical weapons? Just this week, Human Rights Watch published reports on a mass execution of 248 people by Syrian forces in May and on the Syrian military’s widespread use of cluster munitions, which are no less indiscriminate than chemical weapons, while the Commission of Inquiry published a report documenting the Syrian military’s numerous — and deliberate — attacks on medical facilities. How much attention have those reports received in the media?

My hope, of course, is that a successful resolution to the chemical-weapons problem will free up the relevant parties, and the media, to focus on the need to find non-military ways to pressure the Assad government and the rebels to stop killing innocent civilians. But I’m not holding my breath. I imagine 95% of the coverage we will see in the coming months will focus on whether Syria is actually complying with the US-Russian deal. In other words, business as usual. Meanwhile, Syrian civilians will continue to be killed through conventional means in large numbers.

Putin & Assad: 1; Obama: 0; Syrian People: -1

by Kevin Jon Heller

That’s the tally in light of the deal that has been reached regarding Syria’s chemical weapons. The US position was that any agreement had to permit the use of force against Syria in case of noncompliance. But the US-Russian deal simply calls for the Security Council to consider the consequences of noncompliance under Chapter VII; it does not commit the Council to any particular course of action. And we know what would happen to a resolution authorizing force:

Under a “framework” agreement, international inspectors must be on the ground in Syria by November, Mr. Kerry said, speaking at a news conference with the Russian Foreign Minister, Sergey V. Lavrov.

Under the agreement, Syria must submit a “comprehensive listing” of its chemical weapons stockpiles within a week.

American and Russian officials also reached a consensus on the size of Syria’s stockpile, an essential prerequisite to any international plan to control and dismantle the weapons.

“If fully implemented,” Mr. Kerry said, “this framework can provide greater protection and security to the world.”

If President Bashar al-Assad of Syria fails to comply with the agreement, the issue will be referred to the United Nations Security Council.

Mr. Kerry said that any violations would then be taken up under Chapter 7 of the United Nations Charter, which authorizes punitive action. But Mr. Lavrov made clear that Russia, which wields a veto in the Security Council, had not withdrawn its objections to the use of force.

Obama not only failed to muster a credible threat of force, he has now failed to ensure that Syrian noncompliance will result in real consequences. Score one for Putin and Assad.

The real losers in the deal, however, are the Syrian people. If the agreement holds, Assad will have effectively been given the green light by both the US and Russia to continue killing his citizens. He just won’t be able to use chemical weapons to do it.

Weekend Roundup: September 7-13, 2013

by An Hertogen

This week on Opinio Juris, we continued the discussion on Syria. Geoff Corn started the week by examining President Obama’s options if Congress were not to enact an AUMF, a question that also occupied Peter who yearned for the good old days of unilateral presidential authority to initiated use of force.

When the surprise Russian proposal to put Syria’s chemical weapons under international control put the Congressional vote on hold, Kevin was not convinced that this twist had anything to do with the “credible threat” of a US unilateral strike. Chris asked to what extent the OPCW could be involved in the practical implementation of the proposal. Chris’ post also pointed out how Russia has been more adept than the US at using international law rhetoric, a point he followed up on in a post comparing the international legal rhetoric in Obama’s speech with that in Putin’s NYTimes op-ed.

The possible legal basis for action continued to fascinate us. Kevin wondered what motivated President Obama’s new theory of customary international law, in which the percentage of the world’s population that lives within the territory of a party to a treaty would determine whether the treaty gives rise to custom. Julian linked to a forthcoming article by Andrew Carswell on the possibility of General Assembly action based on the Uniting for Peace resolution. Following a comment by the White House Counsel that a strike would not be prohibited under international law, Julian wanted to know more about the theory on which the White House thinks a strike would be legal under international law. Make sure you catch the comment by Charlie Savage who interviewed Ms Ruemmler.

Despite all these posts on Syria, we are not quite rebranding to Opinio Syriae just yet! Continue Reading…

Does the Washington Post Editorial Page Have ANY Standards Left?

by Kevin Jon Heller

Apparently not, because yesterday’s war propaganda editorial by Sebastian Junger beating the drum for attacking Syria is just spectacularly awful. I’ve been out of the fisking game for a while, but the editorial simply can’t pass unmentioned.

Every war I have ever covered — Kosovo, Bosnia, Sierra Leone and Liberia — withstood all diplomatic efforts to end it until Western military action finally forced a resolution. Even Afghanistan, where NATO troops stepped into a civil war that had been raging for a decade, is experiencing its lowest level of civilian casualties in more than a generation.

When you’re citing Afghanistan — now in its 12th year of conflict, with tens of thousands of civilian casualties, millions of refugees, 3300+ dead US soldiers, and a price tag nearing $500 billion — as an example of successful Western military action, you should probably just stop, delete your file, and go play with your kids.

(But I do like the slogan for the US: “Year 12 in Afghanistan: Lowest Civilian Casualties Ever!”)

That track record should force even peace advocates to consider that military action is required to bring some wars to an end. And yet there’s been little evidence of that sentiment in American opposition to missile strikes against military targets in Syria.

Obama has specifically disclaimed any intention to end the Syrian civil war through military action. But whatever…

Quick Bleg About the Security Council

by Kevin Jon Heller

Can anyone point me toward a good discussion — historical and/or theoretical, preferably both — of the ability (or inability) of the Security Council to adopt resolutions that are binding on states that are not members of the UN?

Big News out of the ECCC

by Kevin Jon Heller

Andrew Cayley, the co-international prosecutor, has resigned effective next week:

British national Andrew Cayley told VOA that it was no secret he was planning to resign this year, but said he was leaving now for personal and professional reasons. He did not elaborate and said his resignation will not affect the ongoing prosecutions under his authority.

Cayley’s departure, which is effective September 16, comes at a crucial time in the court’s prosecution of two surviving Khmer Rouge leaders: Nuon Chea and Khieu Samphan.

Nuon Chea was Pol Pot’s deputy, while Khieu Samphan was head of state of the regime that is believed responsible for the deaths of two million people between 1975 and 1979.

The trial of the elderly defendants – known as Case 002 – is so complex that the court divided it into a number of smaller trials. The first of those mini-trials concluded in July. Since then the prosecution, the defense and the lawyers for the civil parties have been preparing their closing submissions.

All are scheduled to file their submissions later this month, with the court due to hear arguments in October. A judgment is expected next year.

Cayley said that process, as far as the prosecution was concerned, remained on track.

“What I’ve done in the past month – which I undertook to the UN to do – is I’ve put in place measures basically that the case will continue to a proper conclusion,” said Cayley. “Our written submissions are almost complete and will be ready to be filed on the 26th of September. So yes, it’s not an ideal situation, but certainly the office is well prepared for my departure. And the office is not just about me – it’s about a whole team of people working together, and me departing is not going to affect the quality of the work.”

As regular readers know, I have the utmost respect for the job Andrew has done under extraordinarily difficult circumstances. It’s remarkable, and a testament to his dedication, that he has survived at the ECCC for nearly four years. The tribunal has always had serious problems, but I think it’s safe to say that those problems would have been far worse absent Andrew’s efforts.

I look forward to seeing what Andrew, an accomplished barrister, does next. I hope the ECCC’s loss will prove to be another international organization’s gain.

From Apology to Bazinga!: International Legal Rhetoric in Obama’s Speech and Putin’s Op-Ed

by Chris Borgen

In From Apology to Utopia, Martti Koskenniemi  mapped how international legal rhetoric can be used to “apologize” for power—to provide a fig leaf over the rude exposure of realpolitik—and how it can be utopian—making rules for a world that does not actually exist.  This week we have had two examples of international law and high politics: President Obama’s speech on Tuesday and Vladimir Putin’s op-ed in today’s New York Times. And while many in the U.S. seem most concerned about Putin’s apparent skepticism toward American exceptionalism, I suggest that more attention should be focused on what his op-ed and President Obama’s speech show about how Russia and the U.S. use international legal rhetoric in pursuit of their goals.

As President Obama’s speech tried to make the case for U.S.-led military action in Syria (if the current diplomatic initiatives fail), Vladimir Putin’s op-ed argued why the U.S. should not intervene. In looking at these two texts—attempts by an American President and a Russian President to speak to the American public, and, at times, to the world—we can compare and contrast how the language of international law is used by both leaders.

Putin’s argument plays on American fears and worries but it is framed in the rhetoric of international law. There are some scare lines, such as: “A strike would increase violence and unleash a new wave of terrorism.” There is a description of a “reeling” Afghanistan where “no one can say what will happen after international forces withdraw.”  And, he adds, don’t forget the divisions in Iraq and Libya.  It is not in “America’s long-term interest” to have U.S. military intervention be “commonplace.” Well, that last part is true enough.

There are also some parts that are a bit hard to swallow, like his implying that his policy is based on a concern over the security of Israel or blaming the ongoing civil war on the West supplying arms to the opposition (which staying silent on Russia’s arming of the murderous Assad regime). I half-expected Putin to follow-up some of his arguments with “Bazinga!”

But all of these various points, be they persuasive or not, are placed in a frame of international legal rhetoric.  Putin’s op-ed is an excellent example of Russia’s strategy of using the language of international law to try to persuade publics around the world of the wisdom of its own foreign policy, while implicitly or explicitly critiquing the policies of other states. Near the beginning of his essay, Putin explains… (Continue Reading)

The Dangers of Hobnobbing with Supreme Court Justices; They Might Have to Recuse Themselves in Your Cert Petition

by Julian Ku

I’ve been following Argentina’s travails in the U.S. courts with great interest, even penning an oped on the subject back in January on their standoff with sovereign debt creditors in Ghana.  Argentina and the so-called “holdout” creditors have been battling out their dispute in the federal courts of New York for years.  So it is interesting to note that Argentina is finally facing its last stand. As Washington Legal Foundation’s Rich Samp notes in his oped, Argentina is highly unlikely to win its last-ditch cert petition to block a lower court order in favor of the holdout creditors. I agree for all the reasons he lists (e,g. no federal law issues, no circuit split, etc) that the Court will not review the case, but I was particularly struck by his observation that Justice Sonya Sotomayor will almost certainly have to recuse herself from the petition. First of all, as a court of appeals judge, she heard several Argentina-debt-related cases.  And second of all, she appears to have a personal acquaintance with Argentina President Cristina Kirchner.

Separately, Justice Sotomayor may also decide to recuse herself because over the years she has met on a number of occasions with Argentina’s president, Cristina Fernández de Kirchner, and other high-ranking Argentine officials. Indeed, the Argentine government seems to have made a concerted effort to forge close relations with the Justice. It would be ironic if those efforts resulted in a decision by Justice Sotomayor to disqualify herself from hearing Argentina’s certiorari petitions.

Justice Sotomayor made an official visit to Argentina on August 27-29, 2012. According to U.S. State Department press releases, while in the country she met one-on-one with President Kirchner. The two also had a meeting when Kirchner was in Washington, D.C. in April 2010. Kirchner has taken an extremely active role in the Second Circuit litigation and has repeatedly and publicly denounced the “hold-outs” who are suing Argentina for payment on their bonds. This may provide Justice Sotomayor with an additional reason to disqualify herself from considering Argentina’s certiorari petitions.

As Rich notes, she doesn’t have to recuse herself and doesn’t have to give reasons when she does.  But I think this is a plausible (additional) reason for her to avoid sitting on this case.  In fact, given that the visit was so recent (just over one year ago), and that the litigation was already plainly heading for the Supreme Court even then, it is hard not to spot the problem here.

Guest Post: What’s in Name? – Military Commissions and Criminal Liability under a U.S. Common Law of War

by Jonathan Hafetz

[Jonathan Hafetz is an Associate Professor of Law at Seton Hall Law School. He co-authored an amicus brief in D.C. Circuit on behalf of civil rights organizations in Hamdan v United States (Hamdan II).]

On September 30, the U.S. Court of Appeals for the D.C. Circuit, sitting en banc, will hear oral argument in the case of Guantanamo detainee and alleged al Qaeda propagandist, Ali Hamza Ahmad Suliman al Bahlul.   Earlier this year, a D.C. Circuit panel invalidated al Bahlul’s conviction by a military commission for conspiracy and related charges because those offenses did not violate the international law of war when committed.  The ruling in Al Bahlul followed logically from the D.C. Circuit’s previous ruling in Hamdan v. United States (Hamdan II), reversing the defendant’s conviction and holding that jurisdiction under the Military Commissions Act of 2006 (2006 MCA) is limited to violations of international law for conduct that pre-dates the statute.

Al Bahlul presents the important question of whether the U.S. may try in a military commission offenses such as conspiracy and material support for terrorism (MST) that do not violate international law. The U.S. government’s argument is predicated on the assumption that the jurisdiction of military commissions extends also to violations of a separate (domestic) U.S. common law of war. The principal focus in Al Bahlul will be on statutory and constitutional issues—more specifically, whether the 2006 MCA authorizes the prosecution of pre-2006 conduct that does not violate international law and, if so, whether the statute violates the Ex Post Facto Clause, the Define and Punish Clause, and/or the civilian criminal jury trial guarantee under Article III and the Fifth and Sixth Amendments.

It is important, however, to consider some other implications of the U.S. government’s argument for commission jurisdiction based on a domestic common law of war. Continue Reading…

Obama’s “Credible Threat” of Military Action Against Syria

by Kevin Jon Heller

In his speech yesterday, Obama predictably took credit for the latest developments regarding Syria’s use of chemical weapons:

In part because of the credible threat of U.S. military action, as well as constructive talks that I had with President Putin, the Russian government has indicated a willingness to join with the international community in pushing Assad to give up his chemical weapons. The Assad regime has now admitted that it has these weapons, and even said they’d join the Chemical Weapons Convention, which prohibits their use.

Such shameless credit-mongering is more than a little difficult to swallow. Had Syria’s new willingness to give up its chemical weapons materialized two weeks ago, when Obama was still rattling his sabre and promising to attack Syria without congressional authorization, it would have been reasonable to conclude that the “credible threat of US military action” was the decisive factor in Assad’s capitulation. But now? Just days after Obama acknowledged that it would be very difficult for him to attack Syria against the will of both Congress and a large majority of the American people? Sure, he hedged a bit, insisting that he has the authority to attack Syria anyway. But I doubt many people (especially Assad) take Obama’s hedge seriously — defying the will of Congress would at a minimum lead to the extremist House holding him in contempt, and it could well lead to a foolish and ultimately doomed attempt to impeach him. The last thing Obama needs is to spend the final few years of his presidency dealing with either possibility — especially given that attacking Syria would accomplish next to nothing from a military standpoint and runs the risk of dragging the US far more deeply into the Syrian civil war than Obama wants.

The idea that the latest diplomatic developments are attributable to the US’s “credible threat” of military action in Syria, then, is anything but credible. Indeed, I’d like to suggest an alternative explanation, one that leads me to be relatively optimistic about the fate of the Russian proposal: this is a diplomatic dream come true for Assad. (And Russia, for that matter.) Although I think there is little doubt left that Syria’s military used chemical weapons against civilians, there is still no evidence that Assad ordered their use. The new Human Rights Watch report specifically concludes that the Syrian government is responsible for the Damascus attack, but it does not claim that Assad himself was responsible for them. And a German newspaper has claimed that “high level national security sources” in the German government believe that Assad “did not personally order last month’s chemical weapons attack near Damascus… and blocked numerous requests from his military commanders to use chemical weapons against regime opponents in recent months.”

I have no idea whether the German report is true, and I’m skeptical of the claim that Assad actively blocked the use of chemical weapons. But I find it very difficult to imagine that Assad was behind the Damascus attack. Had the attack occurred last year, when it looked (at least for a time) like the rebels might actually be able to overthrow the government, I would have had no problem believing that Assad was behind it. He’s clearly a monster, and I’m sure he would use any weapon in his arsenal as a last resort. But why now? Why would Assad use a weapon that has very little tactical military use when it seems clear that the rebels are slowly losing the war? Assad may be a monster, but he’s not an irrational one. He had to have known that using chemical weapons so openly would be of little military benefit and would run the risk of international condemnation and even military intervention. So I find it unimaginable that he would have used them anyway.

If Assad was not responsible for the attack, and if he thinks he is going to win the civil war, the Russian proposal for avoiding US military intervention is a fantastic solution to his international problems. Assad gives up weapons he has no intention of using anyway, and in exchange he reaps the diplomatic benefits of giving them up and avoids being attacked by the US. And, of course, he remains free to keep on killing innocent civilians with conventional weapons, which the US has made clear it has no intention of using force to stop. As I said, a dream come true for Assad.

Obama can claim all he wants that he’s responsible for the possibility of Syria giving up its chemical weapons. In reality, it’s just as plausible that Assad has played him like a fiddle.

Weekday News Wrap: Thursday, September 12, 2013

by An Hertogen

What’s Wrong with International Human Rights Law?

by Duncan Hollis

I’ve long admired Oscar Schachter’s idea that there is an ‘invisible college’ of international lawyers operating across the globe, all of whom share a common culture of professionalism and purpose in advancing international law.  Of course, with fragmentation the unity of that profession is more overtly stressed now than in the past (which, I suppose, should not be all that surprising since anyone who’s spent time within a “college” can attest to the occasionally sharp divisions that emerge among faculty and/or their students).

There is one area, however, where the unity of the international legal profession has, to date, appeared unchallenged — international human rights law.  To be sure, there are frequent debates over what this law contains, who has a voice in its interpretation and application, and how effective these rights may be in practice.  But, it’s almost taboo to challenge the concept of international human rights itself.  After all, since we’re all humans, who could oppose the idea that we all have (and are entitled to) certain universal rights?  Well, my colleague Jaya Ramji-Nogales has actually launched just such a challenge as part of a new research agenda, seeking to examine critically the concept of international human rights.  Her first step is a new draft article, ‘Undocumented Migrants and the Failures of Universal Individualism‘.  In it, she actually does something I don’t think I’ve seen an international lawyer do before — identify multiple conceptual problems with the very idea of a universal, international law of human rights.  It’s sure to be a controversial thesis.  But I also think it’s not one to be shouted down, but rather engaged with openly, especially by those who identify themselves as international human rights lawyers.  Here’s her argument in abstract form:

In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. Few have examined international human rights law closely enough to discover just how limited it is in its protections of the undocumented. This article takes that failure as a starting point to launch a critique of the universal individualist project that characterizes the current human rights system. It then catalogues in detail the protections available to undocumented migrants international human rights law, which are far fewer than often assumed. The article demonstrates through a careful analysis of relevant law that the human rights framework contains significant conceptual gaps when it comes to the undocumented. It concludes by stepping away from human rights law and offering a radically innovative approach to protecting undocumented migrants and other vulnerable populations.

 

For those interested in reading further, the paper is up on SSRN here.

Venezuela Formally Withdraws from American Convention on Human Rights, Blames the U.S.

by Julian Ku

In other Latin American news, Venezuela’s withdrawal from the American Convention of Human Rights went into effect this week, drawing the condemnations of various human rights groups. The withdrawal was one of the Hugo Chavez’s last decisions as President, however, and seems to have been sparked by dissatisfaction with decisions by the Inter-American Court of Human Rights.

Venezuela’s withdrawal from the American Convention, along with its decision to withdraw from the World Bank’s ICSID system of resolving investor-state disputes last year, suggests that international judicial institutions of all types are losing a bit of ground in Latin America. Colombia has denounced its membership in the Bogota Pact, and Bolivia and Ecuador have also left ICSID.

Of course, Venezuela is a different case and it is only the third country ever to withdraw from the American Convention.  I don’t know enough about the region to opine on the reasons for Venezuela’s withdrawal, but I do find the reflexive Yankee-bashing a curious justification.

Venezuela’s president, Nicolas Maduro, reiterated Chavez’s charge that the Inter-American system was a U.S. pawn.

“[T]he U.S. is not part of the human rights system, does not acknowledge the court’s jurisdiction or the commission, but … the commission headquarters is in Washington,” President Maduro said at a news conference, according to media reports. “Almost all participants and bureaucracy that are part of the IACHR are captured by the interests of the State Department of the United States.”

My experience with the OAS and the Inter-American Commission is admittedly quite limited, but I’ve never gotten the impression that IACHR in particular was controlled by the U.S., or indeed, that the U.S. paid the IACHR any serious attention whatsoever. The only shred of truth here is that the IACHR is indeed headquartered in Washington D.C., but that can’t be enough to prove bias.  After all, the U.N. is in New York and it proves (pretty much every day) that the U.S. is powerless to get it to do anything it wants.

Medellin v. Texas Goes Abroad? Colombia Says It Will Not Abide By ICJ Ruling

by Julian Ku

I’m a little late to this, but it is worth noting that President Santos of Colombia has announced that Colombia will “not abide” by an ICJ ruling awarding certain territorial and maritime rights to Nicaragua.  Colombia is not exactly going to simply ignore the ICJ ruling, its Foreign Minister says, but it sure sounds like it is going to do exactly that.

“At no time are we disregarding the jurisdiction of the court at The Hague,” Foreign Minister María Ángela Holguín told Caracol Radio on Tuesday. “We’re not disregarding the ruling either. We’re saying that our constitution does not permit its applicability.” Santos said that it is going to sue the Pact of Bogota at the country’s Constitutional Court, and that in the meantime the government will try to secure a new treaty with Nicaragua that satisfies both countries.

I think the Colombian FM is saying that the Pact of Bogota which gave compulsory jurisdiction to the ICJ is unconstitutional under the Colombia Constitution. And, presumably, that the Colombian Constitution is supreme to the Pact of Bogata within Colombia. And therefore, Colombia won’t carry out the ICJ judgment.  It’s Medellin v. Texas all over again!

None of this analysis would explain why Colombia is not in plain violation of its obligations under the Pact of Bogata and the UN Charter’s general obligation to abide by ICJ judgments. President Santos further announced that Colombia will “subscribe in a letter of protest along with other neighboring nations [Jamaica, Costa Rica, and Panama] that I will personally deliver to the United Nations’ Secretary General.” Gee, that will show them!

I think what is really happening here is that Colombia is refusing to comply with the ICJ ruling, but it is not going to admit it is doing so.  In the meantime, Colombia will pretend that there is some litigation or appeal going on somewhere that is delaying its obligation to comply (there is none) until Nicaragua gives up and makes a deal.  Since I seriously doubt Nicaragua has enough leverage to push Colombia to comply, this strategy just might work!

The larger lesson is that we often forget just how hard it is to get countries to carry out international court rulings, even when they have voluntarily agreed to the jurisdiction of those international courts.  It is really, really, hard, and it is more surprising when countries do comply than when they don’t.

Of course, it is entirely possible I’m misreading this somehow. I don’t speak Spanish, and I don’t exactly trust Google Translate.  But a video of the President Santos address is here.  Spanish-speaking readers should feel free to add their views to the comments.

Weekday News Wrap: Wednesday, September 11, 2013

by An Hertogen

Forty Years Ago Today: Pinochet’s Coup in Chile

by Roger Alford

PinochetI have been in Santiago, Chile for the past few days keynoting an international law conference at the Pontifical Catholic University of Chile. It’s an impressive law school in one of the most beautiful cities in South America.

I was fortunate to arrive on the eve of the fortieth anniversary of the defining moment in Chilean history: Augusto Pinochet’s coup d’état on September 11, 1973. Protests are planned throughout the country to memorialize the detained and disappeared. I’m not sure what the norm is in Santiago, but this week Pinochet was very much on the minds of Chileans, with television and newspapers filled with stories on the Pinochet era. An estimated 3,200 were murdered and 38,000 tortured during his reign. I spoke at length with students and professors about their reflections on Augusto Pinochet.

Pinochet’s reputation has plummeted in the past two decades. Almost everyone I spoke with said that the Pinochet extradition trial in the United Kingdom was the turning point. At the time he was arrested in London in October 1998, the country was divided, with as many defending as condemning him. But the international condemnation that ensued in 1999 altered pubic opinion in Chile. Now the vast majority of Chileans view Pinochet as a dictator, and he has precious little support among the the younger generation. Only with the older generation is there a significant minority that defends the Pinochet era.

I raise this because I think many outsiders view the Pinochet trial as an inconclusive failure. He was never extradited to Spain. Despite numerous attempts, he was never convicted at home or abroad for his human rights violations. But the legacy of the extradition trials in Britain and criminal investigations in Chile have left a lasting impact on Pinochet’s reputation. The law students I had the privilege to interview uniformly condemned the man. The names of his victims are memorialized around the country. He was never convicted, but he stands condemned by the Chilean public.

What Does Putting Syria’s Chemical Weapons Under “International Control” Mean? (And Some Thoughts on Russia’s Use of International Legal Rhetoric)

by Chris Borgen

With the focus now on the Russian proposal to bring Syrian chemical weapons under “international control,” questions that remain include how would this actually work? Who would take control?

One likely participant in the implementation would be the Organisation for the Prohibition of Chemical Weapons (OPCW), the implementing body for the Chemical Weapons Convention (CWC).  From the OPCW website:

As of today the OPCW has 189 Member States, who are working together to achieve a world free from chemical weapons…

To this end, the Convention contains four key provisions:

1. destroying all existing chemical weapons under international verification by the OPCW;

2. monitoring chemical industry to prevent new weapons from re-emerging;

3. providing assistance and protection to States Parties against chemical threats; and

4. fostering international cooperation to strengthen implementation of the Convention and promote the peaceful use of chemistry.

See their annual reports here.

Although Syria is not a signatory to the CWC, given the OPCW’s expertise, it is a fair assumption that they would be involved in some capacity in any international control of Syria’s chemical weapons.  The OPCW has already been involved in attempts to address the Syrian crisis: the UN-led group of monitors that investigated the chemical weapons attack in Damascus primarily consisted of OPCW technical experts.

As for the new proposal… [Continue Reading]

Rapid Response Seminar: Humanitarian Intervention, International Law and Syria

by Duncan Hollis

Normally, we post our conference announcements weekly, but we just got word of one tomorrow that’s worth flagging.  The British Institute of International and Comparative law (BIICL) will be holding a Rapid Response Seminar tomorrow, September 11, from 4-6 pm to discuss ‘Humanitarian Intervention, International Law and Syria’.  As the title suggests, the conversation will discuss whether humanitarian intervention falls within the corpus of international law and, if so, whether it can be applied to the current Syrian situation.  Robert McCorquodale (BIICL) will chair the panel, with scheduled speakers including Dapo Akande (Oxford), Sigrun Skogly (Lancaster), Guglielmo Verdirame (King’s College) and Marc Weller (Cambridge).  The seminar will take place in the Senate Room, Senate House, Malet Street, London WC1E 7HU.   For more information see here.

Weekday News Wrap: Tuesday, September 10, 2013

by An Hertogen

Peace Palace 100: Great Powers and Common People in a Century of War and Peace

by Chris Borgen

[Travel and other expenses related to my participation in the “100 Years Peace Palace” program provided by the Government of the Netherlands and Radio Netherlands Worldwide.]

August 28th marked the 50th anniversary of Martin Luther King Jr.’s “I Have a Dream” speech. It was also the 100th anniversary of the completion of the Peace Palace at The Hague. Two dreams from two eras. The pursuit of these two related dreams—for racial and economic justice within the U.S. (and other countries) and for the peaceful resolution of disputes between countries—are stories in which citizen activism played an important role in framing the issues and options for political elites.

This idea of the interconnection of Dr. King’s vision with those of the peace activists who played a part in setting the stage for the Hague Conferences of 1899 and 1907 and the subsequent construction of the Peace Palace and its institutions was a theme that was noted throughout the commemorations at The Hague.  Perhaps nowhere more so than in the celebration of the work of Bertha von Suttner, an influential author and peace activist who was the only woman to attend the 1899 conference.

In a speech delivered at “Pro Concordia Labor,” an event honoring von Suttner organized by Professor Hope May, US War Crimes Ambassador Stephen Rapp said:

…that 1899 conference and its results would not have been achieved without the citizens’ movement that made it happen.  Grotius had been an advisor to princes, and famously for a time was imprisoned by one of them.  They ruled the world of the 17th Century.  But by 1899, citizens had the power to affect the decisions of governments, and a citizens’ movement led by Bertha von Suttner, demanded the convening of the Hague conference and motivated its decisions.

Bertha von Suttner went on to win the Nobel Peace Prize in 1905. At the centennial festivities at the Peace Palace this August, she also became the first woman to have a bust in the Peace Palace.

Ambassador Rapp had come to the celebrations at The Hague directly from an annual meeting of the chief international prosecutors of the various international tribunals sponsored by the Robert H. Jackson Center and other institutions, that takes place at the Chautauqua Institution in western New York. In doing this, he noted the historical link to von Suttner:

On leaving the sessions this year, I discovered that Bertha von Suttner had come to Chautauqua in the summer of 1912 to speak in the same amphitheatre before a crowd of thousands…  It is reported that von Suttner spoke at Chautauqua about the need to resolve disputes between nations in court and not on the battlefield, and about how the Permanent Court of Arbitration would be a forum for such peaceful settlements.  Back here in The Hague, a palace to house that court was rising.  Now 100 years later we honor von Suttner, and the civic activism that can move nations.

It may seem strange to celebrate the centennial of the Peace Palace when today’s great powers are at odds over what to do in the face of carnage in Syria… [Continue Reading]

Who Needs the Law of the Sea Convention? U.S. Signs Maritime Boundary Agreement With Kiribati

by Julian Ku

20130906_us_kiribati_map OK, I have to admit I was not familiar with the Pacific Island nation of Kiribati before reading this article, but I was heartened to learn that the U.S. signed a maritime boundary treaty with it on Friday.  Sometimes supporters of U.S. ratification suggest that it would be almost impossible to work with Law of the Sea signatories like Kiribati if the U.S. doesn’t join, but this actually doesn’t apply to most maritime boundaries.  Put another way, joining the Law of the Sea Convention won’t make it easier to resolve ongoing maritime disputes with, say, Canada. That remains the hard work of diplomacy, and negotiations.  Glad we have the ol’ Kiribati border settled though.  (Amusingly, the article notes that US government aid actually helped fund Kiribati’s legal and negotiating team. We paid their lawyers as well as ours!  Maybe we could try that with Canada!).

White House Counsel Announces Syria Strike Would Not Violate International Law, But Doesn’t Explain How

by Julian Ku

In the UK, the government released a brief note which described the legal theory justifying a strike on Syria.  The note may have had flaws, but it certainly offered a basis to evaluate the UK government’s view of international law.  In the United States, the equivalent appears to be conversations between the White House Counsel and Charlie Savage of the NYT

Ms. Ruemmler said that while an attack on Syria “may not fit under a traditionally recognized legal basis under international law,” the administration believed that given the novel factors and circumstances, such an action would nevertheless be “justified and legitimate under international law” and so not prohibited.

Come on, Charlie, you have got to push her to elaborate!  Why would it be “justified and legitimate”? Is it illegal but legitimate, or is it actually legal under a theory yet to be revealed by the administration? Has the State Department been asked for an opinion?

I don’t fault the reporter here since the constitutional issue is plainly more important than the international one, as a practical matter.   But I am curious that the President, who has publicly cited international law as a factor in his decisionmaking, has not bothered to offer anything more than a quote in a NYT article to explain its international legality.  To be sure, Congress is not exactly pushing him to do so, but I am surprised the bureaucracy hasn’t generated anything yet. Leak, please!

Weekday News Wrap: Monday, September 9, 2013

by Jessica Dorsey

Anyone Else Wistful for the Good Old Days, in Which Presidents Went It Alone?

by Peter Spiro

You never know, President Obama might turn things around. On the other hand, things sound bad on the Hill. The Administration would have to run the table to get a yes-vote from both houses of Congress (it’s uphill even in the Senate). It may not be too early to start writing the post-mortems.

The key mistake Obama made was going to Congress for approval. The disaster that has followed shows why presidents have (or now, perhaps, “used to have”) the power unilaterally to initiate limited uses of force.

If Obama had last Saturday gone ahead and announced that a limited strike was underway against select chemical-weapons sites in Syria — the sort of announcement everyone in the Administration thought he was going to make –, and that it would be over in 48 hours, he would have accomplished everything that he’s still looking to accomplish.

Yes, there would have been political backlash — there would have been, just as there has always been, Monday-morning quarterbacking on limited uses of force. But presidents always weathered that kind of backlash. Op-eds are written, a Dennis Kucinich lawsuit is dismissed (who will play his role in future episodes?), calls are made for reining in the imperial presidency. Then everything subsides back to the constitutional mean, in which Presidents are expected to make these decisions without putting them through the hall of mirrors that is Congress. (Real wars are different — the stakes are high but the objectives tend to be clearer, much clearer, in a way that focuses the legislative mind and incentivizes approval.)

Where we are in fact: if Obama loses the vote that he requested he will have two very bad options.

If he then goes it alone, there will be a domestic firestorm, framed not just in political but constitutional terms. At the very least I think we would see the House formally condemn the action (something not witnessed in the war powers context since the House censured President Polk in 1848 over his provocation of the Mexican-American War). As Sandy Levinson suggests, there would also “certainly be (reasonable) calls for impeachment.”

If, on the other hand, Obama backs down in the face of a legislative defeat, he’ll look fatally weak, something on which almost everyone seems to agree. He would that he still had the constitutional authority to conduct the operation notwithstanding the absence of authorization, and that the backing down was at his discretion. But in this context, actions speak louder than words. Asking for the authorization effected a constitutional giveaway; there’s no chance of a constitutional clawback, at least not for now.

This is of course not to say that a Syria strike on unilateral presidential authority would have solved the Syria situation. But it would have left the US in a far better position internationally than we’re likely to find ourselves a couple of weeks from now.

TEDxHagueAcademy: September 9

by Chris Borgen

For a number of years now, I’ve enjoyed watching TED talks  and TEDx events on a variety of subjects in the realms of science, design, and society. TED may be an acronym for Technology, Entertainment, and Design, but TED talks already go well beyond those topics and tomorrow, September 9, there will be a TEDx event on issues of international justice.

TEDxHagueAcademy will bring together a wide range of speakers on issues of international justice, including  former Acting Solicitor General (and, lead counsel for Guantanamo detainees in Hamdan v. Rumsfeld) Neal Katyal and President of the ICTY Theodor Meron. Other speakers will include activists and artists who are engaged in questions of peace, justice, and reconciliation. For example, Michael Liu, a lawyer from mainland China representing victims before the Extraordinary Chambers in the Courts of Cambodia, will speak on China and international justice, journalist and human rights activist Iduvina Hernandez will talk about the struggle for justice in Guatemala, and filmmaker Faisal Attrache will talk about his documentary on Syrian refugee barbers.

Two of the organizers of this event were also involved in bringing the group of bloggers over to the Hague for the Peace Palace meetings last week, so I got to hear a bit about TEDxHagueAcademy and it sounds like it will be a very interesting and wide-ranging event.

Videos of the TEDxHagueAcademy talks will be available (and archived for later viewing) on its webpage.

More information is available via TEDxHagueAcademy’s Facebook page and there is a Twitter feed, where you can also send questions to the speakers.

Events and Announcements: September 8, 2013

by An Hertogen

Calls for Papers

  • A workshop on Sociological Inquiries into International Law will take place at the London School of Economics on May 16, 2014. The aim of this workshop is to help bring contemporary international law scholarship into a closer conversation with a number of inspiring and theoretically rich literatures on law and markets deriving from traditions of thinking within sociology and anthropology. Abstracts of no more than 300 words should be sent to Sungjoon Cho by November 1, 2013. More information can be found here.

Events

  • On 19 September 2013, at the T.M.C. Asser Instituut in The Hague, Professor James Crawford will give a lecture entitled Individual and Collective Responsibility of States for acts of International Organizations on the occasion of the publication of his new book State Responsibility. The General Part (Cambridge University Press 2013) as part of the SHARES/ESIL Lecture Series. More information can be found here. The event is free of charge, but you must register (e-mail shares-fdr [at] uva [dot] nl) to attend.

Announcements

  • The T.M.C. Asser Instituut is looking to appoint a full-time (38 hours per week) Senior Researcher in International and European Sports Law to join its dynamic and multinational research team. As an active member of this Sports Law team, the Senior Researcher will contribute to the acquisition, development and carrying out of (new) research projects and initiatives in close collaboration with the cluster coordinator. More information can be found here. Applications are due before October 15, 2013.
  • The Board of Directors of the Council of American Students in International Negotiations (CASIN) is accepting applications for the position of Editor-in-Chief of Eyes on the International Criminal Court (Eyes), its flagship academic journal on the International Criminal Court. Junior faculty, postdoctoral fellows, PhD candidates, law school graduates, and advanced graduate students are especially encouraged to apply. Please note that this is a volunteer and virtual position. To apply, please submit a letter of interest, a resume/CV, 1 writing sample of approximately 15,000 words, and 3 references to publications [at] americanstudents [dot] us. In the subject line please include: Eyes EIC, [your last name]. Applications will be reviewed on a rolling basis, and the deadline is Monday, September 16, 2013. More information is here.
  • A research position has recently become available as part of the International Committee of the Red Cross (ICRC) – British Red Cross cooperation to update the practice collection underpinning the ICRC’s study on customary IHL. The position is based at the Lauterpacht Centre for International Law at the University of Cambridge. More information can be found here.

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

Can the General Assembly Provide a Way Around the Security Council on Syria?

by Julian Ku

As Samantha Power (the new U.S. Ambassador to the U.N.) demands unilateral action and rages against the deadlocked Security Council, it is worth thinking again about the odd structure of the UNSC and its veto power for P-5 members.  In this light, I would point our readers to an interesting piece by Andrew Carswell forthcoming in the Journal of Conflict and Security Law entitled “Unblocking the Security Council: The Uniting for Peace Resolution.”  Essentially, there is some (very thin in my view) precedent from the Korean War era for the General Assembly to provide authority for the use of military force.  This might allow the U.S. to seek GA endorsement of a strike against Syria due to the deadlock in the Security Council.  As a practical matter, it is far from clear that a majority of the current GA would actually support the U.S. but even if it did, the legal significance of a GA act is uncertain to say the least.  Still, something worth discussing.

Unfortunately, the full article is not quite done but it will be out shortly. This link may provide (for a limited time) access to his almost complete draft. His abstract is below the jump.

Obama’s Bizarre New Theory of Customary International Law

by Kevin Jon Heller

As readers of the blog no doubt know, Syria is is one of seven states that have not ratified the Chemical Weapons Convention (CWC). (The others are Angola, Egypt, Israel, Myanmar, North Korea, and South Sudan.) To consider Syria’s use of chemical weapons as a rationale for attacking the country, the USG obviously needs to assume that the use of such weapons is prohibited by customary international law. I have no doubt that they are; after all, the CWC has been ratified by 96% of the world’s states, and nearly all international scholars accept the idea that so-called “law-making” treaties like the CWC can generate custom. As Brownlie says in his Principles of International Law, “the number of parties, the explicit acceptance of rules of law, and, in some cases, the declaratory nature of the provisions produce a strong law-creating effect at least as great as the general practice considered sufficient to create a customary rule.”

The key is “the number of parties.” I have never seen a scholar suggest — much less an actual international court or tribunal — that whether a treaty gives rise to custom depends on the percentage of the world’s population that lives within the territorial confines of the parties to the treaty. Yet that is exactly what the Obama administration seems to be arguing. Here is what Obama said a few days ago to reporters in Sweden (emphasis mine):

“My credibility is not on the line. The international community’s credibility is on the line,” he said.

“America and Congress’s credibility is on the line, because we give lip-service to the notion that these international norms are important.”

Mr Obama, who has previously said the use of chemical weapons would cross a “red line”, told reporters it was not him who set this line but the world, “when governments representing 98% of the world’s population said the use of chemical weapons are abhorrent and passed a treaty forbidding their use even when countries are engaged in war”.

I thought Obama’s emphasis on population might have been an aberration, a slip of the tongue or a inartfully-written phrase. But Samantha Power said the same thing yesterday at the Center for American Progress (emphasis mine):

In arguing for limited military action in the wake of this mass casualty chemical weapons atrocity, we are not arguing that Syrian lives are worth protecting only when they are threatened with poison gas.

Rather, we are reaffirming what the world has already made plain in laying down its collective judgment on chemical weapons. There is something different about chemical warfare that raises the stakes for the United States and raises the stakes for the world.

There are many reasons the governments representing 98 percent of the world’s population, including all 15 members of the U.N. Security Council, agreed to ban chemical weapons. 

Is the Obama administration promoting a new theory of custom, one in which the customary status of  treaty depends upon the percentage of the world’s population represented by states that have ratified it, not the number of states themselves? It certainly seems to be. But why? Why not simply point out that the CWC has been ratified by 96% of states instead? Surely that must be enough to generate custom — perhaps even jus cogens!

May I venture a cynical answer? If the Obama administration had gone the black-letter route, arguing that Syria is bound by the CWC’s prohibition on the use of chemical weapons because 186 states have ratified the CWC, that would mean the US is bound as a matter of custom by a number of treaties that it has refused to ratify. The Convention on the Rights of the Child, for example, has been ratified by 190 states — 98%. So, too, the Biodiversity Convention. Even the much-maligned Kyoto Protocol has been ratified by 189 states, also 98%.

But now apply Obama’s new “98% of the world’s population” test for customary international law. Which treaties the US has refused to ratify reflect custom under that test? None of them — because the US represents 5% of the world’s population. Indeed, no treaty that does not include the US could ever cross the 98% threshold.

Magic! And convenient magic at that.

PS. I am not claiming it is 100% certain — or even 98%… — that Obama and Power are articulating a new view of the relationship between treaties and custom. It’s completely possible they are making nothing more than a political argument. But I assume that lawyers vet these speeches — especially given the surprisingly central role IL has played in the debate over Syria. I also assume that Obama and Power are aware that the CWC, which both have specifically invoked (not simply “norms” against the use of chemical weapons), does not directly bind Syria. So I think it’s fair to at least speculate that, in defending the supposed “red line” drawn by the CWC — itself illusory, as the CWC does not permit the use of force in response to breaches — it’s not an accident that neither Obama nor Power said “96% of the world’s states” but strangely emphasized 98% of the world’s population instead.

Syria Insta-Symposium: Geoff Corn–The President, Congress, Syria: What If?

by Geoffrey Corn

[Geoffrey Corn is the Presidential Research Professor of Law at South Texas College of Law in Houston. His prior articles addressing war powers include: 123.]

It seems almost abundantly clear that President Obama has resolved the question of “what if” the United Nations Security Council is unwilling to authorize military action against Syria for use of chemical weapons. The U.S. will act without such authorization, unilaterally if necessary. Why? Well, we know there are numerous overt and sub rosa motives being discussed, but ultimately because of a U.S. conclusion that the UNSC has proven ineffective. To bolster the credibility of this assertion, which is obviously dubious to certain other permanent members of the Security Council and countless other states, international law experts, and observers, the President has asked Congress to endorse his planned punitive strike with express statutory authorization.

Many have hailed this decision to submit the matter to Congress as a positive manifestation of the President’s respect for the Constitution’s allocation of war powers. But in reality, while Congress may be developing what it views as an authorization to use military force, this is not exactly how the President views their effort. Instead, he, like predecessors who have also sought express statutory authority for military actions, views it much more as support for the use of military force. Just as President George H.W. Bush emphasized when he, in 1991, requested congressional authorization to use military force to implement UNSC Resolution 678 and oust Iraqi forces from Kuwait, President Obama insists that while he wants this authorization, he does not need it. Of course, President Obama assertions of ‘desire’ versus ‘necessity’ follow the pattern of all modern presidents. However, by seeking authorization, the President does seem to be assuming a greater degree of risk than had he acted on his own asserted Article II authority. Thus, ironically, while the request for authorization will enhance strategic and constitutional legitimacy should Congress support the President, the risks associated with a down vote invokes the parable that, “it is easier to seek forgiveness than ask for permission.”

So, “what if” a majority of at least one house votes against his request, preventing enactment of an AUMF?  Continue Reading…

Weekend Roundup: August 31-September 6, 2013

by Jessica Dorsey

Syria dominated (and continues to dominate) the headlines this week, and we featured many takes on the developing situation through our Syria Insta-Symposium.

From our regular contributors, Julian pondered whether President Obama would reveal the international law justification on his position regarding intervention in Syria and Kevin questioned US Secretary of State John Kerry’s classification of Syria as the United States’ “Munich Moment.”

Peter and Deborah both discussed US domestic/constitutional implications at length. Peter called President Obama’s decision to consult Congress on military intervention a “watershed moment” and wondered if his lawyers were consulted in this apparent about-face move, while Deborah classified it as a wise decision by Obama. They both offered commentary on the text of the Senate draft AUMF (Peter here, and Deborah here) and Deborah also pointed to a discussion she took part in among scholars on the Huffington Post. Julian also weighed in on the AUMF, concluding that the UN Charter does not matter to the US Senate’s deliberations on authorizing force in Syria and Ken discussed the role of the Security Council in light of his recent ASIL Insight and posting at Lawfare.

From our guest contributors, Jennifer Trahan started off the symposium by taking on contentious subject matter in a post discussing the legality of a strike by the United States. John Quigley weighed in with his thoughts on intervention while Andre Nollkaemper sketched out the two paths States might choose to take for intervening: either acting inside or outside of international law. Marty Lederman weighed in with a two-part posting, the first talking about the intersection of the UN Charter and the US Constitution, and the second addressing the role of the UN Charter in the US Congressional debate. The former theme of Marty’s two posts was also featured in Charlie Kels‘ contribution discussing the intersection of the two legal regimes. Stephanie Carvin urged readers to bring practical judgment back in rather than solely relying on legal solutions, while Sondre Torp Helmersen crafted a reply to Stephanie’s post. Krista Nelson offered an analysis on the significance of using chemical weapons in international law.

Otto Spijkers offered a perspective on whether states could stand idly by in the Syria situation by comparing bystander obligations at the international level to Dutch domestic law. Ezequiel Heffes and Brian Frankel talk about the decision-making process in R2P situations, and Mark Kersten wonders whose R2P it is, anyway.

And in non-Syria news this week, Julian pointed out that Japan has threatened to take Korea to the ICJ over victims’ compensation claims in the Second World War, Kevin described why Kenya won’t withdraw from the ICC and Kristen covered Friday’s verdict in the Dutchbat case from the Dutch Supreme Court holding the Netherlands responsible for the deaths of three men at Srebrenica.

As usual, we provided our Weekday News Wraps as well as upcoming Events and Announcements. Have a great weekend!

Supreme Court Decision Rendered in Dutchbat Case: the Netherlands Responsible

by Kristen Boon

In a hotly anticipated decision, the Supreme Court of the Netherlands affirmed today that the Dutch State is responsible for the deaths of three men at Srebrenica. As the press release recounts, “The men had sought refuge in the compound of the Dutch battalion (Dutchbat). Dutchbat decided not to evacuate them along with the battalion and instead sent them away from the compound on 13 July 1995.” Outside the compound they were murdered by the Bosnian-Serb army or related paramilitary groups.

The decision (in english) is available here, and cites both the 2002 Articles on State Responsibility and the 2011 Articles on the Responsibility of International Organizations, and provides a detailed analysis of attribution doctrines in peacekeeping situations.

On the substance, the decision upholds the Court of Appeal’s finding that the Dutch state exercised “effective control” over Dutchbat pursuant to Art. 8 of the Articles on State Responsibility, which it defines as “factual control over specific conduct.”  (Para. 3.11.3)  Although the decision cites the commentary to Articles on the Responsibility of IOs for this test, the wording originates from the monumental Nicaragua decision.  Moreover, confirming that Art. 7 of the Articles on the Responsibility of IOs applies (as opposed to Art. 6), the Court found that this was a situation where a State, here the Netherlands, placed troops at the disposal of a UN peace mission, and while command and control were transferred to the UN, disciplinary powers and criminal jurisdiction reman vested in the seconding State. (Para. 3.10.2). The court also finds that international law permits the possibility of dual attribution, potentially leading to shared responsibility.  As a result, “the Court of Appeal was able to leave open whether the UN had effective control over Dutchbat’s conduct in the early evening of 13 July 1995.”  Interestingly, this aspect of the decision does not follow a May 2013 advisory opinion by the Procurator General, analyzed by Andre Nollkaemper here.

On the question of wrongfulness, which is determined by the law of Bosnia and Herzegovina, the Court upheld the Court of Appeals reasoning, adding that if it accepted the State’s argument for judicial restraint, there would be virtually no scope for the courts to assess the conduct of a troop contingent in the context of a peace mission.

I am sure I will have more to add as I parse this rich decision, but for now, a good day for international law in domestic courts.

Syria Insta-Symposium: The Significance of Chemical Weapons Use Under International Law

by Krista Nelson

[Krista Nelson, PhD, JD, is a recent graduate of Yale Law School]

The Obama administration’s advance toward air strikes stems from the Syrian government’s alleged use of chemical weapons, but under international law does it matter if civilians are being killed with chemical weapons rather than conventional means? And how does the prohibition on chemical weapons interact with international law on the resort to force?

From the law of armed conflict (LOAC) perspective, the use of chemical weapons in Syria was not a game-changer. LOAC is concerned with harm to civilians in armed conflict, whatever the means or methods. Certain weapons are a concern largely because a) they do not distinguish between people who can be attacked and those who are off-limits, and thus they violate the principle of distinction; or b) they cause more harm than necessary to permissible targets, which is not the main issue in the present case. In Syria, the principle of distinction seems to have been thrown out the window long ago; reportedly, thousands of civilians have been killed (even directly attacked) using conventional means. Of course, LOAC does not look kindly on weapons that cause particularly gruesome harm to innocent people, but the first and foremost problem is that civilians are being attacked with any weapons at all.

By contrast, the use of chemical weapons is a critical problem under arms control law. But arms control is not just concerned with use, which is the focus of LOAC – it covers other activities like weapons development, production, stockpiling, proliferation; and it applies in peace as well as conflict. Moreover, arms control has diverse aims with respect to weapons, ranging from reducing suffering or protecting civilians in conflict to preventing conflict from breaking out in the first place and shaping balances of military power.

Current Obama administration statements draw more from arms control than LOAC, citing various concerns from the particular suffering chemical weapons caused to the proliferation of other weapons of mass destruction. The administration suggests that the use of chemical weapons links the Syrian conflict to U.S. national security interests – a claim supported with arguments that Syria’s alleged use of chemical weapons is bound up with other weapons (e.g., nuclear weapons), other actions (e.g., proliferation), and other countries (potential victims as well as perpetrators of weapons-related violations).

What arms control law does not provide is a trigger for the resort to force, the Obama administration’s preferred course of action and the main international legal controversy. Arms control provides no clear avenue around the international legal requirement of a UN Security Council resolution or a self-defense justification, neither of which the Obama administration claims to have. Indeed, one particularly relevant arms control treaty – the Chemical Weapons Convention – provides a framework for addressing non-compliance that points to multilateralism, UN Security Council participation, and conformity with international law. Chemical weapons use may be a game-changer for President Obama, but the rules of the game have not disappeared.

Statements on Syria bear less resemblance to justifications for NATO’s 1999 campaign over Kosovo (where an ethnic cleansing was taking place, triggering what has been called a “humanitarian intervention”) than to the 2003 Iraq War, which was justified with a mix of humanitarian and strategic ideas including emphasis on weapons of mass destruction. Unlike the present situation, attempts were made to justify the use of force using a UN Security Council resolution from the previous decade, as well as the notion of preemptive self-defense.

Perhaps the Obama administration thinks that combining expansive arms control concerns, including some humanitarianism, may effectively push against the rules on the resort to force. If the broad provisions of the proposed authorization for the use of military force are any indication, the U.S. government may tap into diverse concerns, looking for international legal justifications under the biggest umbrella it can find.

That approach would be a different and perhaps bolder challenge to rules on the use of force than humanitarian intervention or President Bush’s preemption. It is true that the significance of chemical weapons use varies in international law, but existing law does not seem to justify the role the Obama administration has assigned it. If the Obama administration has its way, the use of chemical weapons may punch above its international legal weight.

Syria and the Role of the Security Council

by Kenneth Anderson

Last Friday, ASIL Insights published an article that I authored, “Legality of Intervention in Syria in Response to Chemical Weapon Attacks.” I followed it up yesterday was an expanded commentary at Lawfare, “Five Fundamental International Law Approaches to the Legality of a Syria Intervention.” A number of readers of the expanded Lawfare post queried me about remarks made near the end of that (lengthy) post concerning the role of the Security Council.

Insofar as the disagreements about Syria are serious ones among the great powers, and among permanent five members of the Security Council (I said in that post), the architecture of the Charter is deliberately designed to impose a standstill on action insofar as permanent, P-5 great powers see their interests as being seriously threatened. American officials have said, in effect, that it’s a flaw of the international order that the Security Council can become deadlocked on a vital issue such as Syria’s chemical weapons use.  From the standpoint of the institutional and historical design of the Security Council, that’s a feature, however, not a bug.  It’s a deliberate design feature because it aims at bringing matters to a deadlocked standstill where the risk is great power conflict that might conceivably lead to war among them.  No doubt that is not an issue here and now, but if the preservation of the norm against chemical weapon use is a pragmatic concern, it is also a pragmatic concern that the role of the Security Council not be undermined.  The Security Council “bypassed,” as the Russian foreign ministry spokesman said, in ways that might, over time, lead to serious conflicts among the great powers – including those great powers that are not today permanent members of the Security Council. Continue Reading…

Syria Insta-Symposium: The “Law” in International Law: A Response to Carvin

by Sondre Torp Helmersen

[Sondre Torp Helmersen teaches at the University of Oslo and is an LLM candidate at the University of Cambridge.]

Stephanie Carvin recently contributed to the Syria Insta-Symposium with a post titled “A Legal Debate Devoid of Consequences (or Bringing Practical Judgment Back In)”.

Her call for a practical perspective is timely. The decision of whether or not to attack must be necessarily be a political decision, on which political scientists such as herself may offer sound advice. However, she apparently does not take full account of the fact that international law is (at least supposed to be) law.

She “crudely paraphrases” her position as follows: “if 15 men sitting around a table in New York say it is okay to strike, then somehow it is fine. If 15 men do not, then it’s not okay. This seems to be an incredibly poor way to decide how to respond to the attack.”

This line of reasoning is applicable to any legal regulation, domestic or international. Try replacing “attack” with any other matter regulated by domestic or international law, Continue Reading…

Why Kenya Won’t Withdraw from the ICC

by Kevin Jon Heller

There has been much consternation and hand-wringing about the Kenyan parliament’s decision to table a motion to withdraw from the ICC. I understand the fear; Kenya’s withdrawal would obviously be a sign that Kenyatta and Ruto no longer intend to cooperate with the Court. Withdrawal could also encourage other African states to leave the ICC, which they have not seemed particularly keen to do, despite their incessant protests that the Court is little more than a neo-colonial instrument of the West that is (in one memorable description) “hunting” Africa.

That parade of horribles, however, presumes that Kenya will actually withdraw from the ICC. I strongly doubt it will, for one basic — and seemingly underappreciated — reason:

Kenyatta and Ruto will very likely be acquitted.

As Thomas Obel Hansen points out in the comments to a recent post by Mark Kersten at Justice in Conflict, “Kenya’s Treaty Making and Ratification Act 2012 makes it clear that it is the prerogative of the executive branch of government to initiate ratification as well as denunciation of international instruments.” The decision to withdraw from the ICC thus rests squarely on Kenyatta and Ruto’s shoulders. And why would they want Kenya to withdraw — at least at this point? As Mark notes in another recent post, withdrawing from the Court will neither terminate the cases nor eliminate Kenya’s obligation to cooperate with the Court. As a result, the ICC would almost certainly respond to a decision to withdraw by immediately replacing Kenyatta and Ruto’s summonses with arrest warrants. Kenyatta and Ruto would likely find it relatively easy to avoid arrest. But arrest warrants would make it much more difficult for the two men to function as Kenya’s heads of state — a problem that would be even more significant for them, newly elected, than for a head of state like Omar al-Bashir, who was in power for nearly two decades before the ICC brought charges against him.

If Kenyatta and Ruto were likely to be convicted, the costs of withdrawing from the ICC would almost certainly be worth it. But does anyone think conviction is likely? The “Ocampo Six” quickly became the “Bensouda Four,” with the Pre-Trial Chamber refusing to confirm the charges against Henry Kosgey, the Industrialisation Minister, and Mohammed Hussein Ali, the former police commissioner. And it seems that hardly a day goes by without another prosecution witness or two deciding not to testify. Nothing would be better for Kenyatta and Ruto — both domestically and internationally — than to be acquitted after cooperating fully with the ICC. So why would they withdraw from the Court now, when the cases against them seem to be falling apart? Why not at least wait until their conviction seems more likely? Withdrawal now would simply be bad strategy.

Mark my words: Kenya will not withdraw from the ICC.

Yet.

Weekday News Wrap: Thursday, September 5, 2013

by Jessica Dorsey

More on the Syria AUMF

by Deborah Pearlstein

In about the time it took the ink to dry on Peter and Jack Goldsmith’s helpful analyses of the import of the draft Senate resolution to authorize President Obama to use force in Syria, the Senate Foreign Relations Committee approved it, by a close vote of 10-7. The bill now goes to the full Senate for debate and vote; Rand Paul is evidently threatening to filibuster. Then of course the House yet needs to debate and pass its version of an authorization bill. So much for the notion that the Senate is institutionally incapable of moving with dispatch.

A few points I want to add and/or emphasize on the draft AUMF, in no particular order.

(1) The Senate version is narrower than the Administration’s initial proposal principally insofar as it limits the use of force to targets in Syria. (The Administration version would’ve allowed targeting sites anywhere in the world so long as they were legitimate targets “in connection with” the use of chemical weapons in the Syrian conflict. But to be clear, it does not prohibit the use of ground troops – only “combat troops,” a description that leaves room for rescue operations, as well as training and intelligence missions of various kinds. It also imposes no restriction on the President’s existing, substantial, and apparently already-in-use power to order various U.S. assets to the region under, for example, statutory covert action authority. On the effect of the time limit contained in the draft AUMF, I agree with Jack; the statute addresses the limits of this particular statutory authorization, it does not impose any limits on what inherent presidential power may exist under Article II of the Constitution to use force all independent of congressional authority. (Recall, pretty much everyone, me included, thinks the President has at least some inherent Art. II power to use force. Large questions remain over just how much constitutional power this is. I don’t think the non-binding and hortatory “whereas” clauses at the beginning of the operative language of the AUMF do much work one way or another in shedding light in this regard.)

(2) The Senate version, like the Administration’s proposal, is unfortunately obscure about what exactly it means “weapons of mass destruction.” The definition of the term is no small matter. The Senate would authorize the President to use military force “he determines to be necessary and appropriate in a limited and tailored manner against legitimate military targets in Syria, only to respond to the use of weapons of mass destruction by the Syrian government in the conflict in Syria,” to deter Syria’s use of such weapons, and to degrade Syria’s capacity to use those weapons in the future. What are “weapons of mass destruction”? The UN definition, adopted not long after World War II and sustained through various committee structures and resolutions since, limits the category to chemical, biological, nuclear, and radiological weapons. Under some U.S. law, for example, U.S. criminal laws prohibiting the use of WMDs, the term is defined much more broadly to include pretty much any explosive device. In this context, I suspect (and hope) Congress means to limit its authorization to the UN version of WMDs. For a host of reasons, it would be helpful if it made that point clear.

(3) There is one other potentially important limit/difference between the Administration’s proposed authorization to use force and the version the Senate Foreign Relations Committee just passed. Among the Senate version’s requirements: “Before exercising the authority granted…, the President shall make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that… the United States has used all appropriate diplomatic and other peaceful means to prevent the deployment and use of weapons of mass destruction in Syria.” This strikes me as a potentially useful requirement, that could be strengthened further if the Senate were serious. At the moment, it only requires presidential certification that he has used all “appropriate” non-force means. That leaves the President with substantial discretion. The Senate could actually require some action – including economic or aid measures – the administration has not yet taken. This would not preclude military force. But it would put another, even minor, hurdle, along the path to what is starting to feel like a bit of a dash to action.

Corker’s Revenge (The War Powers Resolution Lives!)

by Peter Spiro

The Senate has a draft resolution authorizing the use of force in Syria up for mark-up today, which you can find here. In its key operative provision, the resolution authorizes the use of force to 60 days only, subject to a 30-day extension upon a presidential certification of “extraordinary circumstances.” If Congress doesn’t extend the authorization, it is thereafter terminated.

SECTION 4. TERMINATION OF THE AUTHORIZATION FOR THE USE OF UNITED STATES ARMED FORCES.

The authorization in section 2(a) shall terminate 60 days after the date of the enactment of this joint resolution, except that the President may extend, for a single period of 30 days, such authorization if

(1) the President determines and certifies to Congress, not later than 5 days before thedate of termination of the initial authorization, that the extension is necessary to fulfill the purposes of this resolution as defined by Section 2(a) due to extraordinary circumstances and for ongoing and impending military operations against Syria under section 2(a); and

(2) Congress does not enact into law, before the extension of authorization, a joint resolution disapproving the extension of the authorization for the additional 30 day period . . .

Sound familiar? The resolution in effect smacks the War Powers Resolution framework onto the Syria action in a way that would be much more effective than the Resolution itself.

We all remember how President Obama evaded the WPR 60/90-day limitation on the non-authorized use of force with respect to the Libya operation. In that case, the Obama Administration made the somewhat implausible (on the face of it) claim that the Libya action did not qualify as “hostilities” for purposes of the WPR. That argument incensed many on the Hill, who thought they were being taken for fools. Bob Corker was particularly unhappy (check out his testy exchange with Harold Koh around time stamp 57:00 in the June 2011 SFRC hearing on Libya and war powers).

Looks like Corker is settling that score here. By applying the WPR timeline specifically to Syria, it almost certainly will stick. It is highly unlikely that Obama would in this case continue a Syria operation beyond the 60/90-day limit.

So the Administration in effect would finds itself bound by the WPR framework that it and all other prior Administrations have rejected. Doesn’t sound like a result that Obama should be happy about, a far cry from the open-ended broad authorization he requested over the weekend.

Jack Goldsmith disagrees. He highlights the “whereas” clause under which Congress would recognize that the President “has authority under the Constitution to use force in order to defend the national security interests of the United States.” I agree that this is a broad, possibly unprecedented articulation of presidential power. But Obama would still have a hard time putting that finding to work by way of extending the use of force beyond the 60/90-day window (the defiance of which would put the episode squarely in Jackson’s category 3, not category 1, as Jack argues).

And we’ll see whether the preambular recognition of broad presidential authority makes its way into the final bill in this form. Jack’s post itself makes that less likely (he is being widely read on legal developments relating to Syria), as Congress stands on guard not to cede constitutional turf. Obama has a glimmer of an argument for action beyond 60/90 days insofar as the resolution speaks of the authorization being terminated rather than requiring that the use of force be terminated (the latter being the WPR’s approach). But that argument would look as lawyerly as the Obama argument on Libya, in a context in which institutional sensitivities are even higher.

If the core of this draft is enacted, one could imagine it becoming a template for specific authorizations of limited uses of force in the future, including those beyond Syria-specific parameters. That would mark a historic shift in the balance of war powers, much more so than the War Powers Resolution itself ever did.

Weekday News Wrap: Wednesday, September 4, 2013

by Jessica Dorsey

Syria Insta-Symposium: Does the U.N. Charter Matter to the U.S. Senate’s Deliberations on the Use of Force? Nope

by Julian Ku

The legality under international law seemed to play an important role in the U.K. Parliament’s deliberations over whether or not to support a strike on Syria.  The UK government issued an (admittedly bare bones) legal opinion which advanced a version of humanitarian intervention. So now that the U.S. Congress has taken up the same question, how important is the U.N. Charter’s limitations on the use of force under Article 2 to the Congress’ deliberations?

As I suggested earlier, the short answer is that the UN Charter’s Article 2 will not be a serious impediment to the U.S. Congress’ decision whether to authorize the use of force.  The Obama Administration, as far as I can tell, has not even bothered to offer a statement as to why such a strike would be legal under international law, much less a full-blown legal opinion.  And if today’s U.S. Senate Foreign Relations Committee hearings are any indication, there is zero interest among even skeptical Senators in discussing the UN Charter.

Based on my skim of the transcript, this is the sole serious discussion of the Charter, raised by Sen. Udall of New Mexico:

We are on shaky international legal foundations with this potential strike, and we need to know whether we exhausted all diplomatic and economic sanction options to affect Syria’s behavior. We need to increase our attention on the source of Assad’s ability to continue to ruthlessly kill his own people, and that is support from nations including Russia and China, who are cynically trying to hold the moral high ground. Assad would not be able to maintain his grip on power if he were not being supported from outside. The full force of international outrage should come down on those nations that are refusing to allow the U.N. to act and find a solution.

Here is Secretary of State Kerry’s  response to Sen. Udall’s broad point:

SEC. KERRY: So we have no illusions. Yes, is the U.N. Security Council having difficulties at this moment performing its functions? Yes. Does that mean the United States of America and the rest of the world that thinks we ought to act should shrink from it? No.

Well, that was easy.  Indeed, the only reference to “violating” international law in the transcript is to Syria’s violations, and not to any potential U.S. violation.  Like the President, the Senators seem comfortable going forward without a U.N. Security Council resolution, even if that is (in the opinion of most scholars) a clear violation of the Charter.  Unlike the UK government, none of the decisionmakers on this side of the pond seem to care. Does this mean we don’t need to pay attention to the Charter anymore?  It sure seems like it.

Another Set of Syria Views on Huff Post

by Deborah Pearlstein

For those still following along, an interesting array of views on the Syria situation in a conversation this afternoon on HuffPost Live, including Michael Scharf, Jules Lobel, Eric Posner, and yours truly. Would that the link went back a bit farther, you could listen in on a lively Miley Cyrus debate as well.

A “Munich Moment” in Syria?

by Kevin Jon Heller

Yes, according to Secretary of State John Kerry:

Secretary of State John Kerry told House Democrats that the United States faced a “Munich moment” in deciding whether to respond to the alleged use of chemical weapons by the Syrian government.

In a 70-minute conference call on Monday afternoon, Kerry derided Syrian President Bashar Assad as a “two-bit dictator” who will “continue to act with impunity,” and he urged lawmakers to back President Barack Obama’s plan for “limited, narrow” strikes against the Assad regime, Democratic sources on the call said.

Kerry’s derisive comments on Assad and his reference to the 1938 Munich agreement between Adolf Hitler and British Prime Minister Neville Chamberlain — after which Chamberlain infamously declared it would lead to “peace for our time” — showed the hard line the White House is taking in its drive for congressional approval of the Syrian resolution.

If the decision to attack Syria is the US’s own Munich moment, does that mean Britain should have responded to the threat of Nazi aggression by launching a small-scale attack on Germany, one carefully designed to slightly degrade the Nazis’ military might without eliminating Hitler or substantially assisting the Czech resistance?

Just asking.

Weekday News Wrap: Tuesday, September 3, 2013

by Jessica Dorsey

Syria Insta-Symposium: Mark Kersten–Whose R2P Is It? The Responsibility to Protect Post-Syria

by Mark Kersten

[Mark Kersten is a PhD candidate in International Relations at the London School of Economics and author of the blog Justice in Conflict. You can find him on Twitter @MarkKersten]

Who would have thought that the most pressing question regarding the Responsibility to Protect in 2013 would be: what is it? The answer to this question is as unclear today as any time in R2P’s political life. It might even be less clear.

In the midst ongoing questions regarding the legality and legitimacy of direct military intervention in Syria, scholars and observers have passionately rehashed the main tenets of R2P, defending or castigating it depending on their political persuasions and which interventions they’ve cut their political teeth on. At the core of their debate is that pesky, simple question: what, exactly, is R2P?

The cacophony of reactions to plans of a potential military intervention in Syria by the US (perhaps with some coalition of powers) has been a déjà vu of the year 2000. There has been a lot of talk about reconciling international commitments to preserve and protect sovereignty with obligations to preserve and protect inalienable universal human rights. All of a sudden, the phrase “humanitarian intervention” is back with a vengeance. Echoing Richard Goldstone’s famous judgement regarding NATO’s intervention in Kosovo, many are suggesting that a military intervention without UN sanction being “illegal but legitimate”. Of course, it was out of this rather curious and, for many, frustrating proposition as well as the inability to reconcile universal human rights with the sovereign prerogatives of states, that the concept of R2P was born. Which begs the question: how did we get back to square one?

The early- to mid-2000s helped establish not one R2P but multiple R2Ps and that these have never been sufficiently reconciled. There are two dominant and distinct versions of R2P at play. First is R2P as a package of norms. This package of norms represents liberal cosmopolitan convictions, namely that the commission of mass atrocities against individuals is of concern to all other human beings and that sovereign inviability of states is conditioned upon their respect of individual rights and freedoms. R2P as a package of ideals is broadly appealing. NGOs, activists and key normative entrepreneurs like the UN Secretary General have been working tirelessly for over a decade to talk these norms into reality. But R2P in this context is also sometimes fuzzy. This has been made clear over the question of who can legitimately authorize R2P. If R2P is a set of principles, then it can be authorized outside of the UN Security Council. After all, the International Commission on Intervention and State Sovereignty (ICISS) stated that, in the situation where the Security Council is deadlocked, intervention by a coalition of states or a regional organization would be appropriate. Legally, however, this is highly dubious.

Distinct from R2P as a normative prescription for world politics is R2P as a legal doctrine. It is less fuzzy and rests primarily upon the two paragraphs in the World Summit Document, accepted by the UN General Assembly in 2005. With the experience of Iraq looming over UN member states, virtually none were inclined to support granting authority to invoke R2P outside the Security Council. And so they didn’t. Hence, whatever its merits, R2P can only lawfully be invoked through the Security Council.

R2P as law and R2P as a set of normative ideals are often in tension. But it is also something else. R2P has emerged as a language with its own vocabulary. The various reports and commissions, UN resolutions, nation state policies, and diplomatic statements are R2P’s lexicon. But as a language, R2P is a double-edged sword. All language can, after all, be used and abused. R2P as a vocabulary provides the invaluable discursive space within which any intervention is weighed against its ability to protect civilians. But it also allows its defenders and its critics to abuse the concept by pretending that R2P is something that it isn’t – or at least not yet.

Proponents of R2P have largely been uninterested in resolving the nature and tensions inherent between the different conceptions of R2P. Instead, many have used R2P language dressed up as R2P law in order to propagate their own desired version of the doctrine. To do so, they cherry-pick from passages in the ICISS Report, UN Secretary General Reports, and previous interventions.

The ultimate aim for R2P proponents is to turn the conceptual doctrine into a legal doctrine and thus to establish it as an integral part of a liberal cosmopolitan international legal landscape. There has been a concomitant belief that so long as R2P keeps chugging along, receiving endorsements in UN reports and being put in motion in situations like Libya and Ivory Coast, then the concept’s trajectory would guide it to the promise land of legal stature. But this trajectory is very unlikely to be fulfilled if the tensions within different conceptions of R2P aren’t resolved.

Importantly, it won’t be the ‘realists’ against ‘liberal internationalists’ who will diminish the concept. It will be liberal internationalists against themselves. Look closely. The most vicious fight today over R2P is not between proponents and critics of R2P but between proponents of the concept who have fundamentally different visions of what R2P is and should be.

As a result, non-intervention into Syria would be neither a success nor failure of R2P. It would be both. It would be a failure because the type of suffering of Syrian citizens (since the beginning of the civil, not just since the chemical weapons attack) is precisely why R2P was created in the first place. But it would also be seen as a success because if R2P is understood as a legal doctrine with resultant obligations on the part states, then it can only authorized by the Security Council. Intervention into Syria without a UN mandate might be moral and it might be imminent. But whatever its enactors suggest, it’s not the legal version R2P, it’s the normative dream of R2P.

The case of Syria could actually save R2P by helping to decipher what it is and, more importantly, what it should be. R2P desperately needs conceptual consistency if it has any hope in emerging as an accepted norm in international relations. But if R2P is simultaneously a fledgling legal doctrine, a package of normative prescriptions as well as a widely used and abused language, it risks meaning everything to everyone and thus meaning very little at all – especially to those in whose name it was supposedly established. If this is R2P’s destiny, for every future Syria we will be doomed to debate what R2P is and isn’t at cross-purposes and ad nauseum.

More Non-Syria News: Japan Threatens to Take Korea to ICJ Over WWII Victim Compensation Cases

by Julian Ku

Although it is sometimes hard to remember, there are things going on in the world that are unrelated to the looming U.S.-Syria conflict. And although I have lots of thoughts on Syria, I wanted to point folks to some other news. Japan is threatening to take Korea to the ICJ as a result of  a Korean court has upholding compensation to a Korean victim of WWII forced labor who sued Nippon Steel, a Japanese corporation that had used such labor in its support of the Japanese government during WWII.

Interestingly, Nippon Steel has recently announced it will agree to pay this judgment.  Still, the government of Japan is not happy about this and other claims looming in Korean courts.  It argues that all such claims were settled as part of the 1965 Agreement Between Japan and Korea Concerning the Settlement of Property and Japan is threatening to take Korea to the International Court of Justice over this Korean court judgment (and others).   I have two quick legal observations.

1) Given the language in the Korea-Japan Agreement, I find the Korean court judgment surprising.

Similar cases in the U.S. were dismissed under the U.S.-Japan Peace Treaty, so it is surprising, but not unprecedented for the Korean courts to interpret a similar treaty provision differently.  Still, the language of the treaty seems pretty broad, indeed much broader and more specific to include individual claims than the comparable US-Japan treaty language.

1 The High Contracting Parties confirm that the problems concerning property, rights, and interests of the two High Contracting Parties and their peoples (including juridical persons) and the claims between the High Contracting Parties and between their peoples, including those stipulated in Article IV(a) of the Peace Treaty with Japan signed at the city of San Francisco on September 8, 1951, have been settled completely and finally.

(Emphasis added). In 1965, Japan paid US$300 million (over 10 years) to the government of Korea as part of this agreement. In theory, that money was supposed to be paid out to individuals but apparently, it never was.  I could have the language wrong, or perhaps I am missing something, but on its face, it looks like Japan indeed settled these claims.  And recall that $300 million in 1965 is a serious chunk of change, equivalent I think to about $2.1 billion today.

2. The ICJ has no jurisdiction, or at least compulsory jurisdiction, over this dispute, but the Agreement does have a binding arbitration provision.

Korea has not accepted the compulsory jurisdiction of the ICJ, so Japan could not bring Korea to that court even if it wanted to.  But Art. III of the Korea-Japan Agreement sends all disputes about the agreement to a three-person arbitral commission.  Japan could take Korea to arbitration, which is binding (or at least as binding as any ICJ ruling).  Permanent Court of Arbitration, anyone?

Syria Insta-Symposium: Ezequiel Heffes and Brian E. Frenkel–The Decision-Making Process of the R2P Doctrine: Towards New (Old) Paths in the Use of Force in International Law

by Ezequiel Heffes

[Ezequiel Heffes and Brian E. Frenkel are LL.M. candidates at the Geneva Academy of International Humanitarian Law and Human Rights and Teaching Assistants of Public International Law at the University of Buenos Aires, School of Law. This post reflects partial conclusions of our ongoing research at the University of Buenos Aires’s Law School as members of the project “Beyond the Jus In Bello? The Regulation of Armed Conflicts in the History of Jus Gentium and the Limits of IHL as an Autonomous Regime Before other Branches of a ‘Fragmented’ Public International Law.”]

In the last few years the general prohibition on the use of force enshrined in Article 2 (4) of the UN Charter has been approached differently from the classical view. In situations of mass violations of human rights and international humanitarian law, the responsibility to protect (R2P) and humanitarian intervention have begun to emerge as possible exceptions. As Jennifer Trahan correctly points out, from a legalistic point of view the UN Charter only allows intervention in two scenarios: UN Security Council authorized action, and the exercise of the “inherent right of individual or collective self–defence if an armed attack occurs” by one State against another State (Article 51 of the UN Charter).

In consequence both, R2P and humanitarian intervention, would be outside any legal framework. But perhaps, and only perhaps, by analyzing the use of force in international law from a different perspective, new proposals could be taken into account. In an earlier post on this blog, André Nollkaemper has presented the possibility that strikes could be part of a process of reconstruction of the law on the use of force, but what does this mean? An alternative view of the existence of the prohibition of the use of force in international law has to be approached.

Rosalyn Higgins has postulated in the past that international law is a legal decision–making process, i.e., it is a continuing process of authoritative decisions. This idea considers that rights and obligations of entities are created by participants –and not by subjects of international law, a notion that according to her has no functional purpose– and determined not by reference to the trend of past decisions, which she calls ‘rules’, but through a continuous and dynamic process of decisions made by authorized persons or organs. This participation, however, would depend in the end on their factual power to do so in order to be accepted by other established participants of that same system. Higgins affirmed in the same sense that if international law was only a set of rules, then it would be unable to contribute to a changing political world. This rejection means that “those who have to make decisions on the basis of international law –judges, but also legal advisers and others– are not really simply ‘finding the rule’ and then applying it. This is because the determination of what is the relevant rule is part of the decision – makers’ function; and because the accumulated trend of past decisions should never be applied oblivious in the context”. Precisely, Julian Ku raised a similar matter when he posted here that President Obama affirmed that international law is a “factor in the decisionmaking process in the U.S.” since U.S. officials were looking at Kosovo as a precedent for an intervention. The main issue therefore seems to be concerning the prohibition of aggression, is it possible to consider that it is only a set of rules? Could it be changed through the abovementioned process? Higgins answered these questions affirming that even when its prescription is a necessary rule of coexistence, it still must be taken into account the fact that it is “the practice of the vast majority of states that is critical, both in the formation of new norms and in their development and change and possible death”. This means that the foresaid prohibition could change without necessarily loosing its strength, and R2P and humanitarian intervention could be allowed only with the States’ consent. From a theoretical perspective this seems difficult, but not impossible.

Higgins’s theory is certainly susceptible to objections. Roland Portmann for instance affirms that there is a confirmed tendency today that supports the idea of having general rules of international law. Even though this could be taken into account, new paradigms shall be explored including other notions of the above–mentioned use of force regime having in mind that today the law created to maintain international order is not working, or it is working but only in a limited sense since it is not persuading some States to not use the force.

In the context of R2P, by adopting the World Summit Outcome Document, the UN instead of participating in this decision–making process decided to enclose possible new paths within the Charter (Secretary General Report “Implementing the responsibility to protect”; General Assembly Resolution 63/308; SC Resolutions 1674, 1894, among others). It decided then to incorporate all of these legal constructions but nonetheless expressly included the intervention and approval of the Security Council as a requirement. At that time none of the P–5 criticized this. On the contrary, they reaffirmed it (Resolution 1674/2006 unanimously adopted) perhaps as a way of legitimizing their delegitimized position. Nowadays, facing situations where SC action is blocked because of the veto of one or more P–5 members, the others are looking to go back to an alternative view outside Article 2 (4). This would be supported by Higgins’s design, which seems to be the most suitable guideline for the dynamic processes of the international community. It could be said therefore that certain States are continuously contributing in the creation of new international rights and obligations in order to develop new paradigms, either because they understand that the 1945´s does no longer solve current issues, or because it does not serves their interests. In any case, the struggle on the decision-making process cannot be denied. The changes on the UN conception about the R2P doctrine, the division within the Security Council and the veto possibility, the returning to old arguments, they all prove that the Article 2 (4) is no longer considered “sacred” and that there are some intentions to make a change.

Syria Insta-Symposium: Otto Spijkers–Can States Stand Idly By?: Bystander Obligations at the Domestic and International Level Compared

by Otto Spijkers

[Otto Spijkers is an Assistant Professor of Public International Law at Utrecht University]

It is interesting to compare the obligations of States at the international level with the obligations of individuals at the national level. Such a comparison is also interesting when it comes to the obligations of other States to intervene in Syria. In this post I will suggest some lessons we can learn from domestic experience.

Article 450 of the Dutch Penal Code states that any person who sees someone in immediate mortal danger, must provide support, if he can do so without endangering himself or others. If he refuses to do so, and if the death of the victim follows, the bystander will be punished with imprisonment not exceeding three months. In many other States, standing idly by when someone is in immediate mortal danger is equally a criminal offense. Does such a rule exist also at the international level? It seems safe to say that at the moment there is no general obligation of bystander States to intervene in certain predefined types of events, except perhaps in some extreme cases such as genocide. But should it exist?

Article 450 was included in our Penal Code in 1880. Inclusion of this article was defended at the time with the argument that the “popular consciousness” was annoyed by the impunity of people standing by when fellow citizens were dying.  Feldbrugge, who analyzed the theoretical foundations of similar provisions in domestic criminal legislation all over the world (see Feldbrugge, ‘Good and Bad Samaritans,’ in the American Journal of Comparative Law, Vol. 14 (1966)), concluded that “many legislators have come to realize that certain behavior with regard to persons in danger is so offensive to the moral feelings of a community that the interference of criminal law is called for.” Clearly, a similar argument can be made to recognize a legal responsibility to intervene at the international level: doing nothing in extreme cases is offensive to the moral feelings of an international community, and thus intervention should be a legal obligation. As “extreme cases” requiring bystander State intervention, we could think of the commission of serious breaches of obligations owed to the international community as a whole (erga omnes), but this is not the place to explore this issue in great detail.

States that do not have a similar provision in their criminal code – essentially the Anglo-American legal systems – believe that the law should not enforce altruism on people. Similarly, when the Dutch legislator discussed the article in 1880, a minority believed that it was better to leave it to the indignation of the public than to punish the perpetrator as lawbreaker. You cannot legally oblige people to be a hero, so it was said, and put them in prison if they refuse. Another argument against including an article like 450 Dutch Penal Code is that in extreme cases, doing nothing can always be qualified as the commission of a crime by omission, or as providing aid or assistance in the commission of the crime (complicity). Applying this to the international situation, it seems inappropriate to regard all States that “do nothing” as faciliators of the wrongful act in such strong sense. There is thus a need to oblige bystander States to intervene.

Although intervening might be the “right thing to do,” there are good reasons not to intervene.  Rescue operations might end badly, with both the victim and the rescuer seriously harmed. And even if a rescue is successful, nobody is really any better off than before the victim got into trouble. The victim will probably have suffered some harm already, and the rescuer might be traumatized or physically hurt because of the rescue. A rescue attempt can also be very costly. And thus, the bystander is in an unenviable position and it is remarkable that anyone should ever intervene at all. The same reasoning can be applied at the inter-State level: the intervening State is seldom rewarded for its intervention, even if the intervention is entirely successful, which is rarely the case at the international level.

In order to commit the offense of Article 450 Dutch Penal Code, the bystander must have had a certain awareness of the danger the victim was in. Since intervening is not an attractive option, most bystanders will do their best to interpret what appears to be a victim in trouble as, in fact, a normal course of events. The indecisiveness of other bystanders – and bystanders can remain indecisive for a very long time – is often interpreted as a decision not to intervene. If others appear to have decided not to intervene, it is easier to do the same. This phenomenon is referred to as “pluralistic ignorance.”  Clearly, this phenomenon occurs also at the international level. If all other States are hesitant to intervene, then a particular indecisive State will follow what it regards as the majority opinion: do not intervene.

If the event is interpreted as the kind of event which obliges the bystander to intervene, the bystander has to accept that it is his personal responsibility to intervene. Once again, one must keep in mind the unattractiveness of intervention. And thus the bystander will still try to find justifications for not-intervening. One justification for not intervening is to convince oneself that the victim somehow deserved it, or was asking for it.  In general, this justification for not intervening is not accepted. As Feldbrugge concluded, “where the victim himself is to be blamed, entirely or in part, for having placed himself in a dangerous situation, there is no fundamental change in the duty of potential rescuers.”  The argument that the population in Syria does not deserve to be rescued because it brought itself in the position it is now in is thus not a good argument.

Feldbrugge noted that the ability – and thus responsibility – to help depends on the bystander’s nearness to the danger and his ability to effectively intervene. This would make neighboring States (Turkey, Members of the League of Arab States), or particularly powerful States (USA), more responsible than others (e.g. the Netherlands).  An interesting question is whether the perpetrator (Syria), after having wounded the victim (its own population), has a duty to provide assistance to that victim. Although such an obligation seems awkward, it also seems unfair to suggest that the perpetrator can leave his victim to die when innocent bystanders have a legal obligation to assist the victim. Feldbrugge had an interesting solution to this dilemma: “where the danger to the victim has been caused intentionally [as in the case of Syria, presumably], the lesser offense of failure to rescue is “absorbed” by the greater offense of attempted homicide.”

Finally, if the bystander has decided to intervene, he must consider the appropriate type of assistance. Feldbrugge noted, on the consequences of “negligent execution of the duty to rescue,” that “the decisive factor in this respect is the rescuer’s motivation.” In other words, a bystander cannot be blamed for a very clumsy and thus failed rescue attempt, as long as he seriously meant to rescue the victim. Of course, Dutch people immediately think of the role of Dutchbat in Srebrenica in 1995. Indeed, it seems unfair that a failed rescue attempt can traumatize a nation for decades, whilst States that did not even try to rescue the victim (the Bosnian Muslims in Srebrenica) have no such trauma.

True enough, Article 450 of the Dutch Penal Code only asks of the bystander that he makes a serious attempt to rescue the victim. But nobody likes to make a fool of himself in public. In the words of Latané and Darley: “the bystander to an emergency is offered the chance to step up on stage, a chance that should be every actor’s dream. But in this case, it is every actor’s nightmare. He hasn’t rehearsed the part very well and he must play it when the curtain is already up. The greater the number of other people present, the more possibility there is of losing face.” (Source: Latané & Darley, The unresponsive bystander: why doesn’t he help? (1970), p. 40.) When the whole world is watching, the possibility of “losing face” does play a role. I am sure it also plays a role in Obama’s thinking about whether to intervene or not.

Syria Insta-Symposium: Stephanie Carvin–A Legal Debate Devoid of Consequences (or Bringing Practical Judgment Back In)

by Stephanie Carvin

[Stephanie Carvin is an Adjunct Professor at the University of Ottawa Graduate School of Public and International Affairs. She is the author of “Prisoners of America’s Wars: From the Early Republic to Guantanamo” (Hurst/Columbia 2010) and co-author of the forthcoming “Between Annihilation and Restraint: Law, Science Liberalism and the American Way of Warfare” (Cambridge University Press) with MJ Williams.]

I have a number of concerns over the Syrian intervention debate as it has played out over the last two weeks. First, there seems to be a very real and frequent conflation over US goals in Syria. The proposed use of military strikes (the plan which seems to be on the table) is not about bringing peace to the war-torn country. Rather, it is about punishment for the use of chemical weapons and to deter their future use. This is a key point to keep in mind as there is a huge and significant difference between the two in terms of politics, law and strategy. While peace may be the overall preferred goal, punitive strikes that may hinder the Assad regime from further use of chemical weapons seems is a far less ambitious and more realistic goal.

This relates to a second concern, related to the constant refrain: why intervention *now* after 100,000 people have already died in over two years of fighting. Quite simply, chemical weapons are a game changer. While no one is disputing the idea that conventional arms are capable of incredible damage, they may be used discriminately if armed forces choose to do so. (And, of course – as is well established, where they have not, individuals may be held accountable for their actions.)

Chemical weapons on the other hand are entirely indiscriminate. It is simply not possible, particularly in an urban environment like the suburbs of Damascus, to use them in a way that is by any standard legal. Further, the risk that the Syrian battlefield may turn into one where chemical weapons in a region that is already incredibly unstable from sectarian rivalries, the fallout of the Arab Spring and, yes, the 2003 intervention in Iraq, raises very real security concerns. Is having open chemical warfare in the Middle East something the world can conceivably tolerate from a security perspective?  For many governments, the thought of a battlefield where chemical warfare becomes a regular occurrence is just too practically awful to ignore.

Both of these points are related to a third over-arching concern, namely that the debate over intervention in Syria, particularly (but not solely) within academic circles, seems to be one focused on enforcing norms for norms sake (“norm enforcement affirmation”) and questions over international law that are rather removed from the situation on the ground.

Indeed, I have a serious concern that some are replacing what should be a political discussion about consequences of intervention with one about legal ‘tick-boxing”. To crudely paraphrase: if 15 men sitting around a table in New York say it is okay to strike, then somehow it is fine. If 15 men do not, then it’s not okay. This seems to be an incredibly poor way to decide how to respond to the attack. Rather than seeing who signed what convention and what “norm” is law, isn’t it better to simply think through the ramifications of an intervention/strikes?

The deeper issue here is why is it that so many of us are willing to answer the question of intervention by seeking a false certainty in law? Why are we willing to let the treaties make our minds up for us, rather than engaging in practical judgment over the issue. Maybe it helps scholars and politicians to lay in their beds at night, happy with their legal-scientific conclusions. But they should, in reality, be seeking the uncertainty of debate.

I firmly believe that discussing and pondering the legal dimensions gives us a framework for thinking about military action. However, my concern is that this is not sufficient. That thinking through whether or not this is case of R2P, reprisals, humanitarian intervention, etc, is not particularly suited to the very practical and real issues resulting from the active and aggressive use of chemical agents. And what the effects of any form of intervention might be on the conflict.

Outside of law, I think a better argument against a US military strike is that it very well may not work – that is the real issue to be wrestled with. International Crisis Group has prepared a very useful brief on the consequences of intervening here. And, as they wisely note in their post:

Debate over a possible strike – its wisdom, preferred scope and legitimacy in the absence of UN Security Council approval – has obscured and distracted from what ought to be the overriding international preoccupation: how to revitalise the search for a political settlement. Discussions about its legality aside, any contemplated military action should be judged based on whether it advances that goal or further postpones it.

Indeed. The stream of legal pontification by individuals far removed from the situation, who do not have any kind of accountability, seems to miss the point of the debate entirely. We are derelict in our discussion.

Those with concern for global governance and the international rule of law need should think about how law can help support a peace agreement, international or national trial and requirements/aid for the no-doubt lengthy and painful rebuilding process that a post-conflict and likely unstable Syria will need for years to come.

So tell me, how many warheads can dance on the tip of a pin?

Syria Insta-Symposium: Charles Kels–At the Intersection of Legal Regimes

by Charles Kels

[Charles Kels is a major in the U.S. Air Force Reserve and an attorney for the Department of Homeland Security. His views do not reflect those of the Department of Homeland Security, Air Force or Defense.]

From a U.S. perspective, the core issue with a Syrian intervention is the interplay between international and constitutional law. Specifically, to what extent does satisfying one lessen the need to comply with the other when it comes to initiating hostilities?

Ever since President Truman bypassed Congress in favor of the UN Security Council (UNSC) to launch the Korean War, there has been a growing body of precedent to suggest that these concurrent paths to the lawful use of force represent an either-or proposition. Cases in which the President acts with the express authorization of both Congress and the UNSC, such as the Persian Gulf War, are an anomaly to say the least.

Recent history indicates that the imprimatur of the UNSC strengthens the President’s hand to act unilaterally in committing U.S. troops abroad. The Office of Legal Counsel (OLC) opinion on the authority to employ force in Libya explicitly cited “the longstanding U.S. commitment to maintaining the credibility” of the UNSC as an important national interest justifying the President’s exercise of his Article II powers.

On the flip side, securing congressional approval seems to obviate the need, at least politically, to wait on the UNSC’s blessing. Presidents can feel relatively secure that the U.S. public will not hold the failure to secure a resolution against them, especially when the overseers in Congress are on the hook by having voted to authorize force.

What if neither hurdle has been definitively cleared in the context of a humanitarian intervention? You get Kosovo, which ostensibly derived some sense of legality from its NATO roots, but has otherwise been deemed “illegal but legitimate.” The historian Michael Ignatieff has poignantly documented how the resulting lack of political will undermined the humanitarian aims of the campaign. NATO’s lofty moral language belied its strategy of minimum risk.

With his announcement that he will seek authorization from Congress for action against Syria, President Obama has thankfully pulled us back from the legal precipice of finding out what happens when there are all the elements of Kosovo, minus the auspices of NATO. He rightfully recognized the importance of making Congress go on the record with its preferences. Although Congress can be a fair-weather fan of military campaigns even when it has authorized them, the accountability of a formal vote makes it infinitely more likely that legislators will engage in partnership rather than recriminations if and when things go awry.

As such, I am inclined to disagree with Professor Spiro that the President’s announcement constitutes a “constitutional surrender.” If President Obama has indeed set a precedent with his decision, I believe it is something much less consequential than requiring future commanders-in-chief to seek congressional authorization for any limited military strike. Rather, it stands for the proposition that when American lives and property are not immediately at stake, and when there is no straight-face self-defense argument under Article 51 of the UN Charter, and when the UNSC has not authorized force, and when there’s no NATO mission to latch onto, the President is on much firmer ground going to Congress. Far from enervating the President and his successors, I tend to agree with Professor Goldsmith that this course of action actually strengthens the administration and the U.S. cause in the event of a military intervention.

One need not be an Article I absolutist to query what actual limits to presidential war-making powers would have been left if the President had gone it alone on Syria. Indeed, to borrow the terminology from Professor Lederman, I think it’s fair to say that unilateral presidential action on Syria would have been much closer to the Bybee/Yoo position, although dressed in the language of the Clinton/Obama “third way.” Seemingly, the only remaining restraint on executive initiation of hostilities would have concerned the expected breadth of the conflict, and whether it counts as “full-scale.” As a stand-alone doctrine, there’s not much there to salvage a meaningful remnant of Congress’s war powers—as I try to flesh out below.

But even in deciding to seek authorization, the President presented intervention in Syria as a fait accompli, reiterating his belief in the “authority to carry out this military action without specific congressional authorization.” The key to understanding what he likely meant is the OLC opinion on Libya, which argued that the limited “nature, scope, and duration” of the anticipated operations fell short of the definition of “war” that necessitates congressional authorization. Central to this analysis was the relative exposure, or lack thereof, of U.S. military personnel to enemy fire. To oversimplify, as long as ground troops are ruled out, and the risk of U.S. casualties is nil, the deployment doesn’t count under the Constitution’s declaration of war clause.

There are two major problems with linking the legal prerequisites for war to the physical impunity of its initiators. First, it implies that war is predictable. But a policy of minimalism can actually whet the enemy’s appetite to widen the conflict. War takes at least two sides, and both get a say as to how it is waged. A “shot across the bow” can quickly become a dogfight. While the President could theoretically go back to Congress for authorization if the scope of the mission proves wider than anticipated, that is an unlikely and daunting scenario once things have started to go bad.

The risk theorist Nassim Taleb has written that professional soldiers embrace uncertainty because it is endemic to war. The mission rarely goes as planned, and the aftermath almost never does. Libya is a case in point. It was bloodless for America until our consulate was overrun the following year. Then it wasn’t.

Second, when political leaders claim that the use of standoff munitions lowers the barriers to waging war, it directly validates the criticisms of those who view these new technologies as an insidious invitation to resort to force unnecessarily. Advanced weapons, and the know-how to use them, exist to help us win our wars. They do not alter the legal requirements for fighting them.

Ultimately, the argument that Congress’s constitutional role is contingent upon the risk to U.S. troops cannot stand on its own. In OLC’s Libya opinion, it was invoked half-heartedly, as a matter of secondary importance to the national interest served by enforcing a UNSC resolution.

With no such resolution available in Syria, and no easily definable national interest to safeguard, justifying unilateral executive action would have been a tall order indeed. As intransigent and divided as Congress may be, asking its permission stands a better chance than courting President Putin.

Of course, a congressional authorization for the use of military force does not satisfy international law. But it would surely enhance the President’s professed comfort level in going forward without a UNSC resolution.

Weekday News Wrap: Monday, September 2, 2013

by Jessica Dorsey

Syria Insta-Symposium: Did Obama Consult His Lawyers Before War Powers About-Face?

by Peter Spiro

Doesn’t sound like it, if you read between the lines of this AP account. Until Friday, everyone was assuming that congressional pre-clearance was not constitutionally required or otherwise warranted.

Obama’s national security team was in agreement that while consulting with Congress was critical, there was no need for formal approval, officials said. Seeking a vote in Congress to authorize a strike wasn’t even an option on the table.

You have to guess there were memos to that effect bouncing around State and Justice. Obama turned around on a dime after a long walk with Denis McDonough. No lawyers anywhere in this photo. Smart money also says that nobody outside the White House scrubbed the draft authorization the President sent over to the Hill. [I’m making a process point here – I’ll hold off for the moment responding to the substance of Marty and Deborah’s excellent posts below, but I think even they would concede that a credible-enough argument could be made to back up a decision not to seek congressional assent.]

Does it make any difference that the lawyers weren’t in on it? Not necessarily, of course. Everyone likes to point out that Obama is himself a constitutional lawyer who advocated robust congressional war powers as a member of the Senate.

But you have to wonder if he wouldn’t have provoked some stiff resistance from OLC and the Legal Adviser’s Office if the option had been vetted below.

It also raises the odds of unintended consequences down the line. Bad things happen when the lawyers are called on to reverse-engineer decisions taken above their heads. (Quite a contrast to the Libya encounter with the War Powers Resolution, in which Harold Koh, OLC acting head Caroline Krass and DoD general counsel Jeh Johnson brought their disagreement to Obama in full dress argument.) Another reason to think this may play out in unexpected ways.

UPDATE: An informed reader tells me that that new NSC Legal Adviser Brian Egan is in the Oval Office meeting (seated second from the left, between Brian McKeon and Tony Blinken); apologies for the error. So there was at least one lawyer participating in the deliberations. Still a completely different story than the battle of legal titans over Libya.

A couple of others have responded along the lines of, what difference does it make. As I say above, it’s possible that it doesn’t make any difference at all. But the lack of full legal vetting does raise the risk of error. One manifestation: there seems to be some confusion about whether Obama is claiming that he could proceed with the strike even if he doesn’t get the thumbs up. Does it also mean we will have no formal OLC opinion on the question? If not, the precedent is less easily cabined in the way that Marty, Jack, Deborah, and others assume it will be.

Syria Insta-Symposium: The President’s Wise Decision

by Deborah Pearlstein

As an adherent of the view that the Constitution requires congressional approval before the President can use military force (other than in certain circumstances of national self defense), I think the President’s decision to seek authorization from Congress was legally required. While Marty is right that presidential practice has at times been otherwise, I don’t think that practice should be understood to alter the otherwise clear import of the Constitution in generally requiring the engagement of more than one branch of government before the United States uses force. Presidential practice past, however, has been relied on by many presidents to justify their circumvention of the requirement to go to Congress. And Congress has, often to its shame, shirked its responsibility to engage more. That President Obama did not follow this well trodden path is thus to his great credit. In this respect, I agree with the basic premise of Peter’s post: the decision was remarkable.

I don’t think I agree, however, with Peter’s expressed concern, which seems to be that because the requirement of getting congressional authorization makes it less likely the U.S. will use force “in these kinds of situations,” this is a bad development for “the global system generally.” Of course, making it hard for the U.S. government to go to war was precisely why the Constitution’s framers thought it wise to bifurcate the war-making power between the branches (as John Hart Ely, among others, eloquently demonstrated). The instinct wasn’t complicated: war is brutal and costly and should be presumed to be rarely in the national interest. But let’s set aside that history for the time being as, one might reasonably argue, the conclusion that emerged from a time in which the United States was young and weak, and in which the world was a categorically different place from the world we live in today. What are “kinds of situations” like these that Peter thinks it should be less difficult than that for the U.S. to use force? Some of the examples he cites – Reagan in Lebanon, Clinton in Somalia – don’t seem to me like great illustrations of good things coming to the global system from unilateral presidential intervention. Other examples one might recall – Reagan in Libya, Clinton in Sudan and Afghanistan – fall I think more evidently into the category of national self defense – a category of justification for unilateral presidential action I do not see as touched at all by President Obama’s decision to go to Congress here.

A better, and much more challenging, example is something like NATO intervention in Kosovo – where the humanitarian situation was horrifying, rapidly worsening, and the UN Security Council unwilling to act. There, the Clinton Administration acted without either advance congressional approval or Security Council authority – an agonizing and self-conscious decision to violate the prevailing law for the purpose of accomplishing what it concluded was a more important end: preventing an ongoing massacre. I found it a very difficult question but ultimately agreed with intervention then. Not unlike Robert Cover’s judges of the slavery era south – torn between a clear legal and professional duty to enforce a law they believed led to a morally abhorrent result – anyone who has ever contemplated civil disobedience recognizes that circumstances may arise in which the profound value of protecting and observing the rule of law comes into conflict with another value, also profound, the protection of which one might reasonably expect to be served by the law’s violation.

But for reasons I alluded to in an earlier post, it’s not at all clear to me that the proposed U.S. use of force in Syria is particularly aimed at the alleviation of human suffering. The President’s stated purposes here – focused largely on accountability for Assad’s past action and deterrence of any future use – coupled with his stated commitment to keep the use of force short and minimal, make it hard to credit the idea that such a U.S. use of force would have the effect (or has the purpose) of ending the humanitarian disaster there (now underway for 2+ years). On the contrary, a limited use of force may provoke retaliation against Syrians or other countries in the region; Assad seemingly has no compunction about using any means at his disposal to preserve power. At the other end of the spectrum – if U.S. intervention causes the regime to collapse, it’s hard to see how we don’t face a greater danger of the dispersal of chemical weapons in the regime’s control, as warring factions fight for power in post-Assad Syria. If we could just destroy the weapons themselves, that might be one thing. But blowing up chemical weapons of course risks a far greater disaster than the one already apparent on the ground. One could go on.

For now, the point is twofold: (1) There’ve been plenty of past U.S. interventions on unilateral presidential authority that have not gone well, for the United States or the global system. (2) There are plenty of reasons to fear this is one of those instances that also will not go well – such that it makes it at a minimum worth debating in a full and democratic way (i.e. with Congress), whether or not force in Syria is the right next step to take.

Syria Insta-Symposium: Marty Lederman Part II–Will the U.N. Charter Be Part of the Forthcoming Congressional Debate?

by Marty Lederman

[Marty Lederman is a Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002. This is the second part of a two-part posting.]

In my previous post, I explained that the difficult and unresolved constitutional question has (thankfully) been avoided—at least for now—by virtue of President Obama’s decision to seek congressional authorization for his proposed use of force in Syria.

That decision does not, however, affect the question of whether such an operation would violate Article 2(4) of the U.N. Charter.  To be sure, if Congress approves the operation, the statute in question will supersede the constraints of the Charter for purposes of U.S. domestic law.  But the U.S. remains a party to the Charter for purposes of international law, and international law is indifferent as to whether the U.S. legislature has or has not approved a particular use of force.

I think the vast majority of commentators on OJ and elsewhere—see, e.g., Dapo Akande on EJIL:Talk! –are correct:  The use of force in Syria would violate Article 2(4) of the Charter.  On the merits, I don’t have a great deal to add to what others have said, for there’s not much of an argument on the other side.  (One of my colleagues has suggested to me that perhaps there is a “plain meaning” and purposive reading of Article 2(4) that might be available—namely, that since the Charter prohibits use of force “against the territorial integrity or political independence of any state,” any use of force that is motivated by an aim other than violating the territorial integrity or political independence of a state (such as preventing future uses of chemical weapons) does not violate Article 2.  (Jordan Paust has suggested likewise in comments to several posts here.)  My understanding, however, is that no nation, including the United States, has ever adopted this reading of Article 2(4), which would radically narrow the scope and effect of the prohibition.  I would not expect the U.S. to float such a reading with respect to Syria.)

What about the “humanitarian intervention” rationale advanced by the U.K.?  It almost certainly will not even be the subject of debate in this country.  The U.S. has long been resistant to that theory, not only because it is almost impossible to defend on its merits—even if such a norm of humanitarian intervention had developed as a matter of custom (and it hasn’t), the U.K. offers no basis at all for why such a custom would be a defense under the Charter, a binding treaty—but also for fear that it would be exploited by other nations in a manner that we could not endorse and that would significantly undermine the Charter.  So, for example, after the U.S. agreed to join the operation in Kosovo in 1999, the State Department Acting Legal Adviser, Michael Matheson, was at pains to publicly emphasize that the U.S. “had not accepted the doctrine of humanitarian intervention as an independent legal basis for military action that was not justified by self-defense or the authorization of the Security Council.”

It is therefore not surprising…

Syria Insta-Symposium: Marty Lederman Part I–The Constitution, the Charter, and Their Intersection

by Marty Lederman

[Marty Lederman is a Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002]

Most of the participants in this Insta-Symposium, and in earlier OJ posts, have understandably focused their attention on the question of whether a U.S. military strike on Syria would violate the U.N. Charter.  I’ll address that question in a subsequent post, in the context of some remarks on the forthcoming congressional debate.  But before I do so, Peter Spiro’s recent post about U.S. constitutional law deserves a response, for he has raised an important and serious charge.

According to Peter, President Obama’s decision to seek congressional authorization for the use of force is a “watershed”—indeed, a “surrender” of constitutional authority—because “[a]t no point in the last half century at least has a president requested advance congressional authorization for anything less than the full-scale use of force.”  Peter thus agrees with David Rothkopf’s accusation that “Obama has reversed decades of precedent regarding the nature of presidential war powers.”

I don’t think that’s a fair characterization.  Or, to be more specific, although Peter is correct that the President’s turn to Congress is in one respect without recent precedent, a unilateral use of force by the President in Syria also would have been unprecedented in important respects, and probably more corrosive to the modern balance of war powers between the political branches.  To understand why this is so, some background is in order.  What follows is a very simplified account of a very complex dynamic:

In the past two generations, there have been three principal schools of thought on the question of the President’s power to initiate the use of force unilaterally, i.e., without congressional authorization:

a.  The traditional view, perhaps best articulated in Chapter One of John Hart Ely’s War and Responsibility, is that except in a small category of cases where the President does not have time to wait for Congress before acting to interdict an attack on the United States, the President must always obtain ex ante congressional authorization, for any use of military force abroad.  That view has numerous adherents, and a rich historical pedigree.  But whatever its merits, it has not carried the day for many decades in terms of U.S. practice.

b.  At the other extreme is the view articulated at pages 7-9 of the October 2003 OLC opinion on war in Iraq, signed by Jay Bybee (which was based upon earlier memos written by his Deputy, John Yoo).  The Bybee/Yoo position is that there are virtually no limits whatsoever:  The President can take the Nation into full-fledged, extended war without congressional approval, as President Truman did in Korea, as long as he does so in order to advance the “national security interests of the United States.”  With the possible exception of Korea itself, this theory has never reflected U.S. practice.  (Indeed, even before that OLC opinion was issued, President Bush sought and obtained congressional authorization for the war in Iraq.)  Notably, it was even rejected by William Rehnquist when he was head of OLC in 1970 (see the opinion beginning at page 321 here).

c.  Between these two categorical views is what I like to call the Clinton/Obama “third way”—a theory that has in effect governed, or at least described, U.S. practice for the past several decades…

Syria Insta-Symposium: André Nollkaemper–Intervention in Syria and International Law: Inside or Out?

by André Nollkaemper

[André Nollkaemper is a Professor of Public International Law and Vice-Dean for Research at the Faculty of Law of the University of Amsterdam as well as the External Advisor to the Ministry of Foreign Affairs of The Netherlands. This contribution is cross-posted at the SHARES Research Project Blog.]

States that have decided to potentially engage in military strikes against Syria, or to support such strikes, face a difficult choice between two options: do they operate outside the international legal framework when they act, or do they use the strikes as part of an attempt to reconstruct the law on the use of force?

There is no doubt that in the present situation, military strikes against Syria would be in violation of international law as it has been understood since 1945. In situations as we face now, in the absence of a Security Council mandate, international law allows no unilateral use of force. Building a coalition outside  the UN does not help. Qualifying strikes as punishment does not help either. International law does not provide a right of states to respond with force to serious violations of international law – even when that law prohibits the use of chemical weapons.  Other than what was suggested in the UK legal  position, reliance on the doctrine of humanitarian intervention does not change this. The positions of states on humanitarian intervention simply are too diverse. This was made quite clear in the UN debates on R2P, which did not recognize any right to use force outside the existing Charter system.

In this situation, states that move forward with strikes have two options: to act outside the system or to stay inside, but present the strikes as part of a process to change the system.

The first option is simply to ignore the international legal framework – and just bombard, without attempt to justify the bombardment in legal terms. An alternative way to frame this, which boils down to the same approach, would be to deny that international law as it is prohibits unilateral strikes. At the time of writing, this first option appears to be the US approach. The line then would be that in extreme cases, strong military responses are required to protect interests of states or of the international community—no matter what international law has to say on the matter. Politically, and/or morally, stakes are too high to be limited by the law. The law may have to pass in situations as this.

The second option is to present the strikes as part of a process of reconstruction of the law on the use of force, and more in particular as a revival of the right to humanitarian intervention. The argument would be that the Charter (and for that matter the R2P doctrine) gives the Security Council the responsibility to act when states use chemical weapons, and that if they fail to do so, individual states should be able to act to protect civilians. Present international law may prohibit it, but international law is not static and can change by being breached. The unlawful act may contain the seeds of a new rule allowing for humanitarian intervention.

On the assumption that strikes deter and influence future behavior, both options may help to protect civilians. Moreover, both options may put the Security Council and its member states on notice that the next time, they should better take their responsibility more seriously, otherwise they will be left behind again.

It may be said that the difference between the two categories is thin or even artificial, since also an act that ignores the law may later be invoked as a precedent for the process that leads to change. Nonetheless the positions can be distinguished. There is a difference in terms of the opinio juris that is relevant for the formation of customary law. Another difference is that states in the former category can continue to rely on the system as it is, to critique future uses of force that rely on an alleged humanitarian exception if they consider these uses politically undesirable, whereas the second group will have a little more to explain.

For those supporting air strikes, the choice between the options is not easy. The benefit of the first option is that the Charter system stays in place. The states embarking on this route will hope that such incidental transgressions do not affect the system as a whole. Next time a similar situation arises, they can simply rely again on the traditional law. This hope is not entirely baseless. Somehow the many transgressions of article 2(4) of the UN Charter in the past decade have not changed anything in the fact that states and legal scholars generally continue to use article 2(4) as a first baseline for justifying or critiquing action or inaction.

A drawback of the first option is that it does not offer anything to make the international legal system more capable of responding to violations of its most fundamental norms. As long as the Security Council does not take its responsibilities more seriously, the system will have to pass when it really matters. There is no ambition of development towards a system that can protect the persons for whose purpose international law in the final analysis exists.

The second option is from this angle more attractive. It could allow participating states to ride the moral high ground, and to seek protection of civilians from within the international legal order. At the end of the tunnel it projects a body of international law that allows for decisive action when needed to protect fundamental values when the Council once more fails to act.

The difficulty of the second option is that it is rather uncertain where this process will lead. Some states (e.g., the UK, the Netherlands) have articulated conditions for humanitarian intervention, such as the requirement that negotiations have been exhausted, that there is a likelihood that the strikes will achieve the aim of protection of civilians, and that there is support of other states—notably states in the region.

However, it is very uncertain whether these conditions will be acceptable to the majority of other states. It also is likely that opinions on the interpretation and application of such conditions in specific cases will differ. If so, a serious risk exists that engaging in this process will lead us to a situation where the old system is abandoned and no longer provides protection, yet no new agreed new rule will be established. States then may justify the use of force on different criteria. They may use the pretext of humanitarian intervention to justify, for example, a strike on Israel because there too the Security Council fails to effectively respond to the illegal occupation, and there too humanitarian costs are high. Engaging in air strikes as part of an attempt to reconstruct the law on the use of force in a humanitarian direction then may come back like a boomerang. The agony is that article 2(4) then will have lost some of its power to protect us.

The failure of the Security Council  to take its  responsibilities and to act therefore  is for more  than one reason deplorable.  Not only does it leave the  people in Syria  without protection, but it also induces unilateral action that, whichever  it proceeds inside or out, leaves the international legal  system worse off.

Events and Announcements: September 1, 2013

by Jessica Dorsey

Calls for Papers

  • The University of Liege Law School will host Nudging Europe: What Can EU Law Learn From Behavioural Sciences?Nudging Europe: What Can EU Law Learn From Behavioural Sciences? December 12-13, 2013. They have put out a call for papers for this event. Papers addressing the implications of behavioral sciences for contract law, competition law and risk regulation will be particularly welcome, but all areas of EU law are of interest. Where relevant, a comparative dimension (comparison between how behavioral insights are used in various jurisdictions) will also be welcome in full papers. The event will consist of a one-day workshop to be held at the University of Liege Law School on December 12-13, 2013. Invited speakers will be reimbursed for reasonable travel and accommodation expenses. The workshop is supported by the University of Liege and the Jean Monnet Chair in EU Law & Risk Regulation at HEC Paris. Please submit an abstract of between 300 and 500 words, including a title, to Alberto Alemanno (alemanno [at] hec [dot] fr) and Anne-Lise Sibony (alsibony [at] ulg [dot] ac [dot] be) by October 1, 2013.
  • The Younger Comparativists Committee of the American Society of Comparative Law is pleased to invite submissions for its third annual conference, to be held on April 4-5, 2014, at Lewis & Clark Law School in Portland, Oregon. The purpose of the conference is to highlight, develop, and promote the scholarship of new and younger comparativists. Submissions will be accepted on any subject in public or private comparative law from scholars who have been engaged as law teachers, lecturers, fellows, or in another academic capacity for no more than ten years as of June 30, 2014. Submissions from graduate students enrolled in master’s or doctoral programs will also be accepted. To submit an entry, scholars should email an attachment in Microsoft Word or PDF containing an abstract of no more than 750 words no later than November 1, 2013, to the following address: ycc [dot] conference [dot] 2014 [at] gmail [dot] com.
  • The Cyprus Human Rights Law Review has issued a call for papers on the theme Recourse to the European Human Rights Law Framework in Response to the Economic Crisis, which will result in a special issue of the journal. The deadline is November 30, 2013.

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