Archive for
October, 2013

What Part of “Part” Does the ICTY Not Understand?

by Kevin Jon Heller

Dov Jacobs calls attention today to an ICTY press release announcing that the Acting President of the ICTY has assigned a new judge to the Seselj case, Mandiaye Niang, pursuant to Rule 15bis of the Rules of Procedure and Evidence. Here is the text of the rule, in relevant part (emphasis mine):

(C) If a Judge is, for any reason, unable to continue sitting in a part-heard case for  a period which is likely to be longer than of a short duration, the remaining  Judges of the Chamber shall report to the President who may assign another  Judge to the case and order either a rehearing or continuation of the proceedings from that point. However, after the opening statements provided  for in Rule 84, or the beginning of the presentation of evidence pursuant to  Rule 85, the continuation of the proceedings can only be ordered with the  consent of all the accused, except as provided for in paragraphs (D) and (G).

(D) If, in the circumstances mentioned in the last sentence of paragraph (C), an  accused withholds his consent, the remaining Judges may nonetheless decide  whether or not to continue the proceedings before a Trial Chamber with a  substitute Judge if, taking all the circumstances into account, they determine  unanimously that doing so would serve the interests of justice. This decision  is subject to appeal directly to a full bench of the Appeals Chamber by either  party. If no appeal is taken from the decision to continue proceedings with a  substitute Judge or the Appeals Chamber affirms that decision, the President shall assign to the existing bench a Judge, who, however, can join the bench  only after he or she has certified that he or she has familiarised himself or  herself with the record of the proceedings. Only one substitution under this paragraph may be made.

Dov has already covered this well, but it is worth repeating: Rule 15bis does not apply to the Harhoff situation, and the Acting President’s willingness to apply the rule is deeply problematic. The Seselj case is not “part heard” — it is completely heard, with closing arguments having been given nearly two years ago. So there are no “proceedings to continue”; all that is left is to finish the judgment, which is presumably well underway given that Judge Harhoff was only disqualified last month. How, then, can rule apply? The Acting President claims (without explanation) that it applies “mutatis mutandis.” Apparently, that’s Latin for “because we want it to.”

The implications of the Acting President’s decision are no less troubling. It means one of two things: either Judge Niang will participate in deciding and writing the judgment in a case in which he did not hear a single witness or item of evidence, or the case will start all over again, ten years after Seselj voluntarily surrendered to the ICTY and seven years after his trial began. The first possibility is such an affront to the concept of a fair trial that I cannot believe that even the ICTY would consider it. So that leaves the second possibility — which would mean that, unless the Tribunal releases him for the duration of his retrial, Seselj would remain in custody for at least another few years. (And probably longer than that, given that the retrial would almost certainly have to be conducted by the ICTY’s residual mechanism, which is barely four months old.) Such endless detention would make a mockery of Seselj’s right to a speedy trial and his right to not be arbitrarily detained — something we would expect from a government like Rwanda’s, not from an international tribunal.

The Improbable Bond v. United States

by Peter Spiro

As foreign relations law wonks gear up for next Tuesday’s argument in Bond v. United States, I wanted to ask, how did we end up with this case, anyway? The small-time, slightly sordid facts are (for classroom purposes) a lawprof’s dream. For those of you who haven’t been following along, the case involves a love triangle in which a wife attacks her husband’s lover, now pregnant with his child. Instead of attacking with a tennis racket or small appliance or some kitchen crockery, she more imaginatively sprinkles toxic chemicals on the woman’s car door, doorknob, and mailbox (the backstory is nicely recounted here).

Instead of pursuing the case under state assault and/or harassment laws, the government prosecuted Bond under 18 U.S.C. 229(a)(1), which criminalizes the use of chemical weapons and was enacted pursuant to the Chemical Weapons Convention.

My question: how did the government decide to pursue the case under the CWC? A case that would otherwise have sleepily played out in a local DA’s office may have come to federal attention through postal inspectors. After that, was it some enterprising young prosecutor who couldn’t seem to shoehorn the case to fit any other federal crime? One can almost imagine an a-ha moment for some newly-minted, hard-working AUSA, late night, deep into the books — “we can nail her for chemical weapons!”

Can we just admit, then, that this is a freak case? The background doesn’t affect the affect the legal analysis but it sure will affect the atmospherics. One can hardly imagine a worse case from the government’s perspective for defending an expansive Treaty Power. I wonder if that AUSA got kudos for creativity. Why didn’t State and/or Justice make this case go away? Why fight so significant a battle on such insignificant terrain? It’s not as if the government is pressing and protecting a clear policy agenda here. Our CWC treaty partners would hardly be offended if Carol Anne Bond were sprung.

Given that the federal government has made very, very little use of the Treaty Power (possibly never) to enlarge its constitutional authority, maybe it would serve everyone better if the Court dodged the broad issue and ruled on a narrow one. The case could be dispatched on narrow statutory interpretation grounds: the provision should not be read to cover the conduct involved. But maybe that’s more than we can hope for from this Court, which looks increasingly intent on asserting itself in the realm of foreign affairs. 

ASIL Mid-Year Meeting in New York

by Kristen Boon

International lawyers here in New York are gearing up for ASIL’s mid-year Meeting.  The program is available here, which kicks off tonight with a reception and talk at the UN.

I’m delighted to have co-chaired the Research Forum with Tim Meyer from Georgia this year.   Tim and I assembled a wonderful Research Forum Committee this year, who conducted a double-blind selection of papers on the basis of abstracts submitted in June.  The committee is composed of:

Karima Bennoune, University of California- Davis School of Law

Donald Earl Childress III, Pepperdine University School of Law

Eyal Benvenisti, Tel Aviv University

Duncan Hollis, Temple University Beasley School of Law

Katerina Linos, University of California-Berkeley School of Law

Research Committee members will be serving as panel chairs at the conference.  The papers to be discussed are available in a Dropbox folder on the ASIL Midyear Meeting page.

You’ll see cutting edge scholarship on topics ranging from international investment law to the future of international criminal tribunals.   The purpose of the forum is to provide scholars with feedback on works-in-progress, which is an important complement to the ASIL Annual Meeting, where panel presentations on specific topics are the norm.

The meeting comes after an exciting week at the UN, with the Sixth Committee considering the International Law Commission’s latest report.   If you’re interested in what has been happening at the UN, the work program is available here, and the formal sessions are available for viewing (webcast) on the UN Website making it easy to follow the discussions from outside of the building.

Chevron and the Rise of Arbitral Power: A Comment by Muthucumaraswamy Sornarajah

by Muthucumaraswamy Sornarajah

[Muthucumaraswamy Sornarajah is the CJ Koh Professor of Law, National University of Singapore and a Visiting Professor, Centre for the Study of Human Rights, London School of Economics.]

Michael Goldhaber’s well-argued piece on the extent of the powers that investment arbitration tribunals are arrogating to themselves is evidence of a general malaise that afflicts investment arbitration. The arbitrators have assumed powers far in excess of what states intended them to have when they made investment treaties and created a unilateral power in the investor to arbitrate disputes. Consistent with prevailing ideas generated by the Washington Consensus and its desire to bring about standards of global governance, arbitrators promoting their own self-interest went on a rampage of expansionist interpretation of treaties. Goldhaber highlights one of the most glaring instances of this neoliberal expansionism, the making of interim orders restraining a respondent state from enforcing judgments of their domestic courts made in cases involving third parties.

This phenomenon is but an aspect of a project to build up a neoliberal regime of inflexible investment protection. In the aspect of this project that Goldhaber describes, there has been an assiduous effort made by leading members of the “college of international lawyers”, entrusted the task of being bulwarks against injustice, promoting sectional interests of investors to the detriment of other values such as the protection of human rights and the environment.

The downsizing of the notion of denial of justice so that it could accommodate lesser standards enabling easy review of domestic judicial orders is a definite project that arbitrators and “highly qualified publicists” embarked upon. Arbitrators, whose legal competence is not tested or uniform, embarked on a course of review of domestic decisions. Golhaber describes these processes with competence. As he points out, while purporting not to act as appellate courts, this is precisely what the tribunals were doing. Continue Reading…

Weekly News Wrap: Thursday, October 31, 2013

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Middle East






  • In other news about spying, Foreign Policy covers what went down in the world of spying this week, including the NSA hacking Google and Yahoo accounts, the US allegedly spying on the Pope, Julian Assange’s newest tactics and the Russians, teddy bears and G20 leaders.

Chevron and the Rise of Arbitral Power: A Comment by Anthea Roberts–Arbitral Power Over Domestic Courts or Arbitral Power Dependent on Domestic Courts?

by Anthea Roberts

[Anthea Roberts holds a joint appointment as a Professor of Law at Columbia Law School and a Senior Lecturer in Law at the London School of Economics and will be in residence at Columbia Law School from 2013-2015.]

Michael Goldhaber has written an interesting and timely article charting the rise of international arbitrators exercising power over and with respect to domestic courts. He gives examples ranging from Chevron to Saipem to White Industries. This is an important and growing phenomenon that has not yet received adequate attention. I believe that the rise of arbitral power over domestic courts that Goldhaber describes is the first stage in what will ultimately become a longer and more contested saga about the respective powers of arbitral tribunals and domestic courts. That is because arbitral tribunals not only exercise power over domestic courts, but their own power is also dependent on domestic courts.

The power of arbitral tribunals ultimately comes down to whether their decisions will be enforced by domestic courts. While Goldhaber charts the first stage in the battle between arbitral tribunals and domestic courts where arbitrators are in the position of authority, we are likely to witness a second stage when domestic courts are asked to pass judgment on whether arbitral tribunals have exceeded their jurisdiction or violated public policy by hearing these sorts of cases or ordering certain relief. Arbitral tribunals will sit in judgment of domestic courts and domestic courts will sit in judgment of arbitral tribunals. Neither reigns supreme.

BG Group v Argentina represents an early example of this type of phenomenon. The tribunal in that case chose not to enforce the requirement in the treaty that the investor resort to the domestic courts for 18 months prior to bringing an arbitral claim. Many other tribunals adopted the same approach, often painting the issue as one of admissibility rather than jurisdiction or viewing domestic remedies as futile rendering resort to them unnecessary. But when the Court of Appeals for the District Court of Columbia was asked to enforce the resulting award, it refused to do so on the basis that the tribunal had exceeded its jurisdiction because Argentina had only consented to arbitration on certain conditions, one of which was not met.

Continue Reading…

Guest Post: Behavioral International Law and Economics: Benchmark and Applications

by Anne van Aaken

[Prof. Dr. Anne van Aaken is Professor of Law and Economics, Legal Theory, Public International Law and European Law at the University of Sankt Gallen, Switzerland.]

I am delighted that Tomer Broude commented on Opinio Juris on the potential and the pitfalls of the use of behavioral economics in international law and am equally happy that I am able to follow up on this. I will do so in two steps: the first part will address the benchmark against which Behavioral International Law and Economics (BIntLE) should be measured in my view. The second mentions some of the applications I suggest in my paper and in an earlier article. Tomer and I are currently planning a book together, bringing together the insights of both of our papers and extending them considerably.

In his introduction to the topic, Tomer comments on the relationship of “Behavioral International Law” to rational choice approaches in international law and international relations.

Behavioral Economics is an empirically validated theory about human behavior. There are of course competing theories in social science. The psychological research is not free-floating and it is not used as such in the field of international law and international relations. Tomer suggests as a basis from which to depart sociological approaches. Sociology as such does not have a unified behavioral model, thus one would need to clarify which sociological theories are drawn upon (e.g. the homo sociologicus as advanced by Ralf Dahrendorf (micro theory of individual behavior), system theory (macro theory), etc.). I suggest as a benchmark rational choice theory, for two reasons.  First, the psychological insights we use are commonly named behavioral economics, given that this research tests and challenges the rational choice hypothesis to a hitherto unknown extent (and the psychologist Daniel Kahneman won the Nobel prize in economics). But behavioral economics is not yet at a stage where it has a unified behavioral theory replacing rational choice: many heuristics and biases depend on the decision-making context (those have to be studied carefully). Rational choice is still the benchmark against which the insights are measured. Second, the parsimony of rational choice makes it a natural starting point. Since behavioral research adds complexity (something which every academic should try to avoid if a simpler explanation is possible for answering a certain research question), it has to show that it generates better insights and is able to explain phenomena which cannot be explained drawing on the rational choice approach alone. To use a coin minted by Einstein: “Everything should be as simple as it can be, but not simpler.” A rational choice approach might sometimes be too simple. Tomer and I share the belief that behavioral economics is able to generate more and better insights to the functioning of international law and we share also the deliberations on the methodological problems this might generate. Because of the weight I put on parsimony, I shift the burden of proof on BintLE to show that it might generate better insights than a rational choice approach to international law. This has to be done step by step, analyzing different fields of general and special international law. After all, it will be the empirics which will validate (or not) the research hypotheses advanced by any theory: the proof of the pudding is in the eating.

Having said that, let me turn to some promising insights, adding to Tomer´s suggestions in his paper and his post. Continue Reading…

The Nationalists Strike Back: The “No-Spy” Agreement Solution to the NSA Spying Scandal

by Julian Ku

I agree with Peter that there is a move to universalize (through accretion) a norm against spying via Article 17 of the ICCPR.  But unlike Peter, I think it will get nowhere.  Instead, I was struck by how the German complaint against the NSA program has not really been phrased in terms of how it violates international norms or laws.  Rather, it seems that the Germans (and French) are really hurt because they don’t have a “no-spy” agreement with the U.S. like Canada, the UK, Australia, and New Zealand do (The so-called “Five Eyes” or AUSCANNZUKUS)

In other words, the problem is not that spying itself is illegal or morally wrong, but that it is illegal and morally wrong to spy on your allies and friends.  Spying on other countries might very well be morally and legally justified (e.g.: North Korea, Iran, China, Russia).  A universal anti-spying norm could very well be the opposite. Indeed, it seems unlikely that Germany and France would seriously support a universal anti-spying norm that would constrain their own very robust spying efforts.

With this in mind, it is worth considering whether and how the U.S. should adopt new “no-spy” agreements, something President Obama seems willing to consider.   I actually think a “no-spy” agreement is a better approach than unilaterally disarming in the spy wars.  Do we really think the French will stop trying to spy on the U.S. once the U.S. pledges to stop spying on France?  Better to at least commit the French to a deal.

From a foreign relations law perspective, “no spy” agreements are curious.  They are sole executive agreements and they may or may not have a binding character under international law. Certainly, they are not formal treaties.  The U.S. Congress probably has incomplete knowledge of exactly what is in these agreements and how they are operating.

Stewart Baker is already up with congressional testimony (dated today) on criteria for any new “no-spy” agreements.  Interestingly, the main thrust of his testimony is that Congress should start exercising a little oversight, at least if the U.S. starts buying off allies with new “no spy” agreements.  He has some pretty stringent requirements (a cooling off period for any new agreements that must all be submitted to Congress for review, a report on compliance,etc).  He doesn’t go so far as to require Congressional approval for any new no-spy agreements, but he might as well.  I doubt Congress would go that far, and I think there will be some questions over whether Congress has the legal authority to constrain these kinds of executive agreements.

In any event, my prediction is that the fallout from the latest NSA scandal will be a flurry of “no-spy-on-you” promises and then a series of new “no spy agreements” for certain favored “allies”.  I think Germany will talk about a universal anti-spying norm, but this initiative will eventually die largely because no large nation really wants it.

NSA Files: An Emerging Human Right to Privacy?

by Peter Spiro

Josh Gerstein has this interesting piece at Politico on how the citizenship divide is breaking down as a defensible perimeter in the legal justification of electronic surveillance. It’s clear where the old reflex is coming from: lawyers steeped in a constitutional tradition that distinguishes citizens from foreigners (and US territory from foreign territory) in the application of constitutional rights. (The key cases are Reid v. Covert and US v. Verdugo-Urquidez.) But that’s not going to fly any more in the face of globalized rights consciousness.

The concern is general publics, not foreign government leaders. The latter should know how to protect themselves. I sure hope that the German government has Angela Merkel on a very secure phone now — the US government may no longer be eavesdropping, but lots of others, including sophisticated nongovernmental persons, may be. As Ian Hurd puts it with respect to the promise not to eavesdrop on foreign officials, “Breaking news: 35 people won’t be spied on, 7,119,999,955 will.”

Maybe not forever. We’re already seeing efforts to universalize data protection efforts against security surveillance. There’s this report from FP of a UN initiative:

Brazil and Germany today joined forces to press for the adoption of a U.N. General Resolution that promotes the right of privacy on the internet, marking the first major international effort to restrain the National Security Agency’s intrusions into the online communications of foreigners, according to diplomatic sources familiar with the push. . . .

Brazilian and German diplomats met in New York today with a small group of Latin American and European governments to consider a draft resolution that calls for expanding privacy rights contained in the International Covenant Civil and Political Rights to the online world. The draft does not refer to a flurry of American spying revelations that have caused a political uproar around the world, particularly in Brazil and Germany. But it was clear that the revelation provided the political momentum to trigger today’s move to the United Nations. The blowback from the NSA leaks continues to agonize U.S. diplomats and military officials concerned about America’s image abroad.

Expect to see more of this kind of activity in places like the treaty committees and among special rapporteurs, as well as on a bilateral/regional basis (think TPP and and TTIP) and in domestic legislation. Article 17 of the ICCPR supplies a basic hook by prohibiting “arbitrary or unlawful interference” with privacy. No way that this ends up as a specified hard norm any time soon, but an accretion of steps may well add up to an international norm against blanket data collection. Obviously you can’t simply transpose domestic requirements (warrants and the like) for enforcement-related surveillance against private persons, but going forward governments may have to satisfy some sort of individualized thresholds for listening in.

Chevron and the Rise of Arbitral Power: A Comment by Christoph Schreuer

by Christoph Schreuer

[Christoph Schreuer is a Professor at the Department of European, International Law and Comparative Law, University of Vienna] 

Michael Goldhaber’s erudite and well-researched article examines an important aspect of the many-sided relationship between domestic courts and investment tribunals. Other facets of this diverse relationship include the review of arbitral awards by domestic courts, anti-suit injunctions by domestic courts, the need to pursue remedies in domestic courts prior to international arbitration, the division of competences under the label of treaty claims and contract claims, fork in the road provisions, interim measures by domestic courts in support of arbitration and enforcement of awards by domestic courts. This complex relationship of courts and tribunals shows elements of competition, of obstruction, of mutual control and of support. It is startling and paradoxical because it defies any notion of a hierarchy of decision makers.

Goldhaber’s excellent analysis concentrates on two issues: antisuit injunctions by arbitral tribunals and denial of justice by domestic courts. But the potential for infringements of the international rules on investor protection by domestic courts is much wider. Practically each of the typical standards of protection contained in BITs can be violated by domestic courts and each of these violations is subject to the scrutiny of investment tribunals.

From the perspective of international law, an international review of domestic court decisions is neither new nor unusual. International judicial control over State activity has always included courts. The State’s responsibility for all types of the exercise of public authority is uncontested and is reflected in Article 4 of the ILC’s Articles on State responsibility.[1] There are good reasons for not differentiating between the different branches of government when it comes to State responsibility. This lack of differentiation is not merely designed to prevent states from hiding behind ‛independent’ organs. In real life the courts and other elements of the government interact in a way that defies the application of a separation of powers doctrine to questions of State responsibility. For example, court action to the detriment of foreign investors is often mandated by legislation.[2] Decisions of domestic courts are sometimes prompted by executive insinuations.[3]

Continue Reading…

Why Is Britain Intentionally Using Weapons of Mass Destruction?

by Kevin Jon Heller

I refer, of course, to the British Navy’s use of the music of Britney Spears to scare off Somali pirates:

In an excellent case of “here’s a sentence you won’t read every day”, Britney Spears has emerged as an unlikely figurehead in the fight against Somali pirates.

According to reports, Britney’s hits, including Oops! I Did It Again and Baby One More Time, are being employed by British naval officers in an attempt to scare off pirates along the east coast of Africa. Perhaps nothing else – not guns, not harpoons – is quite as intimidating as the sound of Ms Spears singing “Ooh baby baby!”

Merchant naval officer Rachel Owens explained the tactics to Metro: “Her songs were chosen by the security team because they thought the pirates would hate them most. These guys can’t stand western culture or music, making Britney’s hits perfect. As soon as the pirates get a blast of Britney, they move on as quickly as they can.”

This is an unconscionable tactic, one that does not befit a country that considers itself civilized. Need I remind the British Navy that torture is illegal under both international and UK law?

The British Navy should also be aware that international law does not completely forbid belligerent reprisals. If the Somali pirates begin to fight back by blaring One Direction at oncoming British ships, the Navy will have no one but themselves to blame.

Hat-Tip: the BBC’s Kate Vandy.

The International Law Commission’s 65th Session (2013)

by Sean D. Murphy

[Sean D. Murphy is the Patricia Roberts Harris Research Professor of Law at the George Washington University Law School. He is a member of the United Nations’ International Law Commission.]

For the next two weeks, the Sixth Committee of the U.N. General Assembly will be debating the Annual Report of the International Law Commission, covering its 65th session in Geneva held during the summer of 2013, as well as the Commission’s Guide to Practice on Reservations to Treaties (which could not be debated last year due to Hurricane Sandy). Both the 2013 Annual Report and the Guide to Practice may be found at Further, those interested in watching the debate live can do so on U.N. TV at .  Finally, in due course, summary and some verbatim records should be available at the U.N. PaperSmart portal, which is at This posting will focus on the issues discussed in the 2013 Annual Report.

First, the Commission made progress in addressing the immunity of state officials from foreign criminal jurisdiction by adopting preliminarily three draft articles in what is expected to be a series of draft articles. Draft article 1 indicates the basic scope of the project (immunity of state officials from the criminal jurisdiction of another state) and makes clear that the articles are “without prejudice to the immunity from criminal jurisdiction enjoyed under special rules of international law, in particular by persons connected with diplomatic missions, consular posts, special missions, international organizations and military forces of a State.” Draft Article 2 on definitions is being held in abeyance until further along in the project, but Draft Article 3 indicates that:  “Heads of State, Heads of Government and Ministers for Foreign Affairs enjoy immunity ratione personae from the exercise of foreign criminal jurisdiction.” By identifying these three persons (sometimes referred to as “the Troika”) as entitled to status-based immunity, the Commission is differing from dicta of the International Court of Justice in the Arrest Warrant (D.R.C. v. Belgium) case, where the Court suggested a potentially broader sweep for the immunity. There the Court asserted in paragraph 51 of the 2002 judgment that “it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal.” Draft article 4 asserts that immunity ratione personaes is enjoyed only during those three officials’ term of office, that it covers all acts performed (whether in a private or official capacity), and that the cessation of the immunity thereafter is without prejudice to the application of the rules of international law concerning immunity ratione materiae. The Commission will now await the special rapporteur’s subsequent reports, in which she will explore immunity ratione materiae, possible exceptions to immunity, and procedural matters, with associated draft articles and commentary.

Second, the Commission adopted five draft “conclusions” in what is expected to be a series of conclusions on the topic “subsequent agreements and subsequent practice in relation to the interpretation of treaties.” Draft conclusion 1 basically situates the topic within the rules on treaty interpretation set forth in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT), and stresses that the “interpretation of a treaty consists of a single combined operation, which places appropriate emphasis on the various means of interpretation indicated, respectively, in articles 31 and 32.”  Where the subsequent agreements and practice establish agreement among all the parties to the treaty, it “shall be taken into account” under VCLT Article 31(3), whereas “recourse may be had” to other subsequent practice in the application of the treaty as a “supplementary means “of interpretation under VCLT Article 32. Notably, draft conclusion 1 confirms the status of Articles 31 and 32 as customary international law.

Draft conclusion 2 indicates that… (Continue Reading)

On What Basis Can the ICC Silence Ruto?

by Kevin Jon Heller

The Sudan Tribune is reporting that the presiding judge in William Ruto’s trial has threatened to have Ruto arrested if he continues to comment publicly on his case:

October 2013 (THE HAGUE) – Kenya’s Vice President William Ruto was on Friday warned by the presiding judge in his trial at the International Criminal Court (ICC) to desist from making statements about the case in the media or risk being arrested and detained.

‘‘The first time this happened [making statement in the media] his counsel [Ruto’s] apologised and said it was a mistake said Judge Chile Eboe-Osuji.

Judge Chile Eboe-Osuji, a Nigerian, cautioned Ruto that if he does not heed to the warning, he could be arrested and detained by the court in The Hague.

The warning comes two weeks after Ruto addressed a press conference in The Hague in which he attacked the court and the prosecutor.

‘‘It’s abundantly clear to us and that’s why we have filed several applications that this case as it runs should be terminated. The prosecution has failed miserably in its responsibility to discharge the mandate assigned to them under the Rome Statute,” he said.

This a shocking threat — and a completely unacceptable one. Nothing in the Rome Statute or the Rules of Procedure and Evidence prohibits Ruto from commenting on his case — much less authorizes the Trial Chamber to have him arrested for doing so. There are only two even vaguely relevant provision of the Rome Statute, Articles 70 and 71, and neither prohibits comments like the one above…

Chevron and the Rise of Arbitral Power: An Introduction by Michael D. Goldhaber

by Michael D. Goldhaber

[Michael D. Goldhaber serves as Senior International Correspondent and “The Global Lawyer” columnist for The American Lawyer and the ALM media group. His writes widely on human rights and corporate accountability, international arbitration, and global multiforum disputes. His e-book on Chevron will be published next year by Amazon.]

The ongoing media circus surrounding the Chevron v. Donziger trial in New York federal court makes it easy to forget that the arbitration between Chevron and Ecuador may be the main event in resolving the $19 billion environmental judgment entered against Chevron in Lago Agrio.

The unique willingness of arbitrators to check the power of a foreign judiciary came into sharp relief on Jan. 25, 2012, when the Chevron v. Ecuador tribunal issued interim orders that the Republic (including its courts) take all measures at its disposal to suspend enforcement of the judgment. The very next morning, the U.S. Court of Appeals for the Second Circuit vacated a worldwide injunction against enforcement of that same judgment by the Ecuadorian plaintiffs. In a striking choice of words, the Second Circuit declined to serve as “the definitive international arbiter of the fairness and integrity of the world’s legal systems.”

Early this year, I had the privilege of moderating an NYU Law School panel titled “Arbitrators v. Judges: The Latent Tension of Investor Arbitration Rises to the Surface,” featuring some of the world’s leading arbitrators. Two weeks later I attended a Stanford Law School conference titled “Lessons From Chevron.” The Stanford Journal of Complex Litigation has published a magnificent set of conference papers — including Judith Kimerling on indigenous rights, Stacie Strong on 1782 discovery, Howard Erichson on forum shopping, Manuel Gomez on international enforcement, Chris Whytock on transnational litigation, and Catherine Rogers on global legal ethics. Full text may be found online here.

I was struck at Stanford by how odd arbitration appears to U.S. scholars, who are mostly stunned by powers that arbitrators take as elemental. I was struck at NYU by the lack of a framework, within the arbitration community, to analyze the growing exercise of authority over national courts by investment arbitrators.

My resulting article — “The Rise of Arbitral Power Over Domestic Courts — will be the subject this week of an Opinio Juris mini-symposium. As geography is no object online, the three distinguished commenters represent three continents and an equally wide range of opinion. Christoph Schreuer of Vienna is an eminent arbitrator, perhaps best known for the Chevron precursor of Saipem v. Bangladesh, and a prolific scholar, perhaps best known for the definitive commentary on the ICSID Convention. Anthea Roberts of Columbia Law School, by way of Australia, is widely hailed as one of the brightest young stars in arbitration scholarship. Muthucumaraswamy Sornarajah of National University of Singapore is among the most eloquent and radical critics of investor-state arbitration. I am honored by their participation…

Does Japan’s Pledge to Shoot Down Chinese Drones Violate International Law?

by Julian Ku

The government of Japan has issued a new policy authorizing its military to shoot down foreign (read: Chinese) drones that enter the airspace over the disputed Senkaku/Diaoyu Islands in the East China Sea. China’s Ministry of Defense has issued a statement suggesting that such an action would be an “act of war” and declaring that China’s manned and unmanned flights do not in any way violate international law.

Interestingly, I think both sides could act in good faith and comply with international law, and still get involved in a nasty dangerous military conflict.  Of course, the nub of the problem is that both Japan and China claim sovereignty over the same airspace, e.g. the Senkakus/Diaoyu.  So both countries could claim to be acting in “self defense” over their sovereign territory in either shooting down or reacting to the downing of a Chinese drone.

One interesting question is whether downing a Chinese drone that was unarmed, and that was not clearly military, would be a violation of the Chicago Convention on International Civil Aviation. Many of the Chinese drones are associated with the PRC’s various coast guard equivalents, and are not associated with their military.  Article 8 of that Convention has a pretty clear ban on the flight of “pilotless aircraft” over the territory of another member state.   So Japan has Art. 8 on its side. But China would never concede the basic sovereignty question, thereby making Article 8 pretty unhelpful. Still, would the Japanese shoot down a clearly unarmed “manned” plane that encroached on the Senkakus? So why shoot down the unarmed drones?  Plainly, Japan will have to offer some evidence of the drones’ threat to bolster any attack it makes.

On the other hand, is China overreacting to call those Japanese threats an “act of war”? I suppose that is technically true if one accepts that China’s drones are flying over Chinese airspace.  Still, it is hard to imagine that downing a drone (where no one is hurt or killed) could have the same  significance as downing a manned plane.

I think Japan is trying to test China, and draw lines on matters that wouldn’t necessarily escalate into armed conflict.  It just might work, but it is sure risky.

Events and Announcements: October 27, 2013

by Jessica Dorsey


  • On November 12, the T.M.C. Asser Instituut in The Hague will launch the International Crimes Database (ICD). This platform offers a comprehensive database on international crimes adjudicated by national, international and internationalized courts and will provide access to a range of information not just for lawyers and judges but also for students, academics, families and communities of victims of crimes, among others. The launch will include speeches from the Dutch Ministry of Security and Justice, the International Centre for Counter-Terrorism (ICCT) – The Hague, ICD team members, the ICD steering committee, a presentation of the website itself, a keynote speech on international crimes by Judge Fausto Pocar (ICTY) and a reception for all those attending. If you would like to attend please send an e-mail to conferencemanager [at] asser [dot] nl before 7 November. The flyer can be found here and the announcement here.
  • The Lieber Society Interest Group of the American Society of International Law is sponsoring a panel discussion from 5:30 – 7:00 pm on November 12th, in Washington, D.C. about the Court-Martial of US Army Sgt Bales for the murder of 16 Afghan civilians entitled “Military Justice, International Criminal Accountability and Cross-Cultural Contexts: US v. Bales.  The case presents a unique opportunity to explore the challenges in both investigating and prosecuting a case involving crimes in a remote area of a war zone, differing cultural perceptions of accountability and justice, and the relationship between military justice and international criminal justice.Speakers include  Lt. Col Jay Morse, chief, Trial Counsel Assistance Program, US Army, and lead prosecutor in the Bales case; Ms. Morwari Zafar, Afghanistan Subject Matter Expert, Defense Intelligence Agency; Sandra Hodgkinson, Vice President, Chief of Staff of DRS Technologies; former Special Assistant (Chief of Staff) for Deputy Secretary of Defense and William J. Lynn, former Deputy Ambassador for War Crimes Issues, US Dept of State. It will be moderated by Jennifer Daskal, Assistant Professor of Law, Washington College of Law, American University.
  • The Columbia Journal of Transnational Law, Columbia Law School Human Rights Institute, the Roger Hertog Program on Law and National Security, and the Lieber Society of the American Society of International Law present: From Gettysburg to Guantanamo: 150 Years of the Lieber Code and the Law of Armed Conflict, a conference on November 21st at Columbia Law School. Drafted by Columbia Professor Francis Lieber and signed by President Lincoln in 1863 as General Order No. 100, the Lieber Code regulated the conduct of U.S. soldiers during wartime. While the Code was limited to Union forces, the rules were based on customary law of the time and strongly influenced subsequent international codification of the law of armed conflict. The Code grappled with issues involving the regulation of armed conflicts between states and non-state groups that remain pressing today. This conference celebrating its 150th anniversary will explore the origins and import of the Lieber Code in its Civil War context, its impact on the development of international humanitarian law, and its continued significance to modern challenges in armed conflict. Confirmed speakers can be found here, the conference schedule here.
  • On November 28th, the London Review of International Law features a celebratory lecture by Gerry Simpson entitled “The Sentimental Life of International Law” at the London School of Economics. For more information, click here.
  • ALMA and the Radzyner School of Law of the Interdisciplinary Center (IDC) have announced the next session of the Joint International Humanitarian Law Forum. The session will be held on October 30, 2013, at 18:30. In this session Adv. Yaniv Roznai, PhD candidate at LSE will present his new paper: “Cracking the Nuc” in the Legal Field: An Israeli Attack on Iran’s Nuclear Facilities From an International Law Perspective.” More information, including about registration, can be found here.

Calls for Papers

  • JURIST, the online legal news and commentary publication run by students and staff at the University of Pittsburgh School of Law, is issuing a call for submissions for its ongoing Feature on ERISA. Deadline for thesis statements: November 1, 2013. Contributors should feel free to examine ERISA from any angle or perspective, so long as the entire piece contains a legal thesis that primarily addresses or incorporates ERISA.  At this time, please send a brief thesis statement of no more than 100 words to academiccommentary [at] jurist [dot] org by the aforementioned deadline of November 1, 2013.  Thesis statements will then be reviewed by JURIST’s commentary staff.  Successful final submissions will be between 1,000 and 1,500 words, will not have been previously published online or in print, and will not include footnotes.  Instead, submissions will include links to primary and secondary sources available online.
  • The North Carolina Journal of International Law and Commercial Regulation is accepting submissions of articles related to International Law and National Security issues. Submissions will be considered for Issue 4 of Volume 39 to be published in Spring 2014. Authors are invited to attend the journal’s symposium on International Law issues in National Security on January 31, 2014. Submissions should be at least around 8,000 words and well-cited. Submissions and questions can be directed to NCILJ [at] unc [dot] edu. The submission deadline is December 31, 2013.


  • Transnational Dispute Management has published its new issue entitled: “Art and Heritage Disputes in International and Comparative Law.” In this TDM special on Art and Heritage Disputes in International and Comparative Law guest editors Prof. Hildegard Schneider (Maastricht University) and Dr. Valentina Vadi (Lancaster University) aim to identify, map and critically assess key themes and features of the numerous art and heritage disputes which have arisen in the past decades. In the introduction article the editors map the key features of these disputes and assess the contribution that these cases offer to the development of international law in both its public and private dimensions. A separate volume to be published early 2014 will focus on intangible heritage disputes.

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

Book Symposium The Electronic Silk Road: Reply by Anupam Chander

by Anupam Chander

[Anupam Chander is Professor of Law at The University of California, Davis]

I am honored to have such a brilliant and prominent set of interlocutors from across the world discussing my book, The Electronic Silk Road: How the Web Binds the World Together in Commerce. I am grateful for the sharp insights each of my commentators brings, and humbled by the praise they offer. Each of the commentators has selected a different aspect of the book to focus on in his or her remarks, and so I will respond to each in seriatim, chronologically.

Professor Michael Birnhack (Tel-Aviv) focuses on glocalization—the conforming of a global service to the local laws of the countries that it serves. Professor Birnhack is familiar with this phenomenon, having studied it himself in connection with the transfiguration of global copyright as it encounters local norms. Both glocalization and and its limiting principle—harmonization—are highly complicated processes. Professor Birnhack wisely observes that glocalization and harmonization are both subject to power variations across the world. This is an important insight—certain countries, industries, corporations, transnational organizations or interests are likely to hold more sway than others in determining any eventual balance between glocalization and harmonization. That would probably be true even if there were a global plebiscite, a possibility that seems quite remote. But Professor Birnhack notes that these shortcomings in the glocalization and harmonization principles I suggest do not render them unwise, as other alternatives are likely to prove worse along the metric he describes.

The University of Bern’s Mira Burri , editor with Professor Thomas Cottier of an important collection of papers on digital trade governance, elegantly describes the major shifts in international trade made possible by the Internet. Her broad perspective makes her an ideal interlocutor. She strikingly observes that “we are faced with a radically ‘messy’ governance landscape with many and overlapping institutions and actors of state and non-state nature, the effects of whose actions transcend national boundaries and cannot be neatly contained and controlled.” She characterizes the principles proposed in The Electronic Silk Road as follows: “The freeing of trade is matched by a batch of principles of regulating trade that are meant to ensure balance, provide for security and trust in cyberspace.”

I proposed that Opinio Juris invite Professor Paul Stephan (Virginia) because I admire his writing and hoped for a critical voice, and he hasn’t disappointed. Continue Reading…

My Talk in London Defending the Specific-Direction Requirement

by Kevin Jon Heller

I had the privilege last week of speaking in London at a superb Chatham House/Doughty St. Chambers symposium on the ICTY’s recent high-profile acquittals in Perisic, Gotovina, and others. My co-panelists were John Jones, QC, Saif Gaddafi’s ICC-appointed lawyer, and Elies van Sliedregt, the Dean of Vrije Universiteit Amsterdam. Chatham House’s Elizabeth Wilmshurst was the moderator. I don’t believe the symposium was recorded, so I thought I would post the detailed outline of my remarks. My talk was, not surprisingly, a defence of Perisic‘s specific-direction requirement; it developed and systematized the thoughts I’ve articulated in a series of posts here on Opinio Juris. I was particularly keen to explain why criticizing the requirement for lacking a foundation in customary international law — as the SCSL did in Taylor — fundamentally misunderstands the difference between criminal-law doctrines that expand criminal responsibility (which must have a customary foundation, because of the nullum crimen principle) and those that narrow it (which do not have to have a customary foundation, because they do not implicate nullem crimen).

The outline of my remarks can be found here. As always, reader comments most welcome!

Weekend Roundup: October 19-25, 2013

by An Hertogen

This week on Opinio Juris, Ken contributed a post on legally distinct corporate entities and agency theory in Bauman v Daimler AGChris wrote about Russia’s Realpolitik towards former USSR members that are seeking closer contact with the EU, and Deborah wrote about due process in targeting.

Julian noticed how Russia had taken a leaf out of China’s book by walking out of an ITLOS arbitration, and responded to Wim Muller who argued that it was merely following a long establish US’ example in ICJ cases.

We held a book symposium on The Electronic Silk Road by Anupam Chander, with comments by Michael Birnhack, Mira Burri, Paul Stephan, Molly LandJoost Pauwelyn, and Jake Colvin.

Chris Jenks wrote a guest post on criminal jurisdiction over US troops in Afghanistan, and Kevin mentioned his guest post at Just Security. Kevin also criticized the ICC’s Appeals Chamber for requiring Ruto’s continuous presence at his trial.

Finally, Jessica rounded up the news and I collated a list of events and announcements.

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

Did the U.S. Set a Precedent for the China/Russia Boycott of UNCLOS Arbitration? Sure! But So What?

by Julian Ku

Wim Muller, an associate fellow in international law at Chatham House, takes issue with my observation that China’s rejection of Annex VII UNCLOS Arbitration may have influenced Russia’s similar rejection of UNCLOS proceedings in the Greenpeace arbitration.  Other commenters take issue with my further claim that Russia’s rejection is another “body blow” to ITLOS dispute settlement. I offer my (“typically tendentious”) response below.

Muller’s criticism, I believe, is mostly just a misunderstanding of my position.  I don’t disagree that the U.S. and other countries have walked away from binding international dispute settlement and this could have set a precedent here.  But my point is narrower:  China and Russia are, as far as I know, the first states ever to reject participation in UNCLOS dispute settlement, and their actions are a serious challenge to the future of UNCLOS dispute settlement, which is supposed to be a key and integral part of the UNCLOS system. Thus, although UNCLOS dispute settlement is not exactly a model of success, it has never before suffered the spectacle of two member states rejecting its tribunals’ jurisdictions (within the same calendar year no less).  I would be surprised if the U.S. example from 1984  was more relevant to Russia’s decision than China’s decision from February of this year.  I don’t think any UNCLOS state has ever rejected the jurisdiction of the ITLOS with respect to provisional measures or “prompt release” procedures.  Indeed, it is worth noting that Russia has not only availed itself of the “prompt release” procedure on one occasion, but it has also submitted to ITLOS “prompt release” jurisdiction in two prior cases.  To be sure, it did not contest jurisdiction in those cases and neither involved similar facts.  But it is striking that Russia has gone from active UNCLOS dispute settlement player to effective boycotter.

UNCLOS dispute settlement is not “voluntary.” It is a system of compulsory  and binding dispute settlement.  Indeed, UNCLOS itself makes clear in Art. 288(4) that UNCLOS tribunals have the power to determine their own jurisdiction.  By refusing to participate in UNCLOS dispute settlement based on their own unilateral claims about jurisdiction, China and Russia are essentially telling the tribunal that they will not accept jurisdiction, no matter what the tribunal determines about jurisdiction, and despite the plain authority those tribunals hold under Art. 288(4).  It may not be a “body blow” but it is not exactly a resounding vote of confidence in UNCLOS dispute settlement either.

Now, Muller seems to be arguing

Due Process in Targeting

by Deborah Pearlstein

It has been an eventful news week in the universe of U.S. targeting debates. Amnesty and Human Rights Watch released their reports detailing some of the civilian costs of drone strikes. A bit earlier, UN Special Rapporteur on human rights and countering terrorism, Ben Emmerson, issued an interim report on his findings thus far about targeted killing (though I think the greater significance of the report was his call for more transparency from key governments about the outcomes of the strikes). At risk of saturating the market, as it were, I wanted to flag my own white paper on the subject, just released today as part of the American Constitution Society’s issue brief series.

In keeping with the forum, the paper focuses on what U.S. constitutional due process requires of U.S. targeting procedures. Both the Administration and the Supreme Court have embraced due process – at a minimum for U.S. citizens – in assessing the legality of various U.S. uses of force against Al Qaeda and associates. This paper tries to think concretely about what due process-compliant targeting procedures would look like in this context. Among its conclusions:

Appeals Chamber Ensures Ruto & Kenyatta Won’t Cooperate with the ICC

by Kevin Jon Heller

In a unanimous decision, the Appeals Chamber has reversed Trial Chamber V(a) and held that Ruto is required to continuously attend his trial, with exceptions to be granted only in exceptional circumstances. The decision is limited to Ruto, but it clearly applies to Kenyatta, as well, whom Trial Chamber V(b) has also excused from continuous presence.

It’s decisions like these that make me despair for the long-term viability of the Court. From a policy perspective, the decision is a disaster — it basically ensures that Ruto and Kenyatta will stop cooperating with the Court. Even worse, the decision will almost certainly engender considerable sympathy for the two men; after all, whether the ICC likes it or not, Ruto and Kenyatta were democratically elected to run a state critically important to African security. They are not Omar al-Bashir, who came to power in a coup and maintains power through fraudulent elections. Nor are their crimes as grave or their guilt as obvious.

Unlike the Trial Chambers — especially in the Kenyatta case — the Appeals Chamber seems completely oblivious to the obvious implications of its uncompromising position. Here is its list of rationales for requiring continuous participation (para. 49):

The accused person is not merely a passive observer of the trial, but the subject of the criminal proceedings and, as such, an active participant therein. It is important for the accused person to have the opportunity to follow the testimony of witnesses testifying against him or her so that he or she is in a position to react to any contradictions between his or her recollection of events and the account of the witness. It is also through the process of confronting the accused with the evidence against him or her that the fullest and most comprehensive record of the relevant events may be formed. Furthermore, the continuous absence of an accused from his or her own trial would have a detrimental impact on the morale and participation of victims and witnesses. More broadly, the presence of the accused during the trial plays an important role in promoting public confidence in the administration of justice.

The most obvious response is this: Ruto and Kenyatta will play no role at all in “promoting public confidence in the administration of justice” if they do not show up for trial. But beyond that, the Appeals Chamber’s rationales are either irrelevant or equally compatible with a more flexible approach to presence. Presence at trial is indeed important for an accused’s ability to understand the evidence against him — but it’s not the Court’s role to make sure the accused make smart strategic choices. There is no relationship at all between confronting an accused with the evidence against him and creating a comprehensive record, especially given that he cannot be forced to testify against his will (Art. 67(g) of the Rome Statute). And although it’s certainly possible that an accused’s absence may have a detrimental impact on the morale of victims and witnesses, I imagine most are more concerned with a conviction (and at least some would probably prefer not to have to give evidence in front of their victimizer).

These are policy concerns, of course, and the Appeals Chamber was faced with a legal issue — whether the Rome Statute requires an accused to be continuously present at trial. Indeed, I would have respected the Appeals Chamber if it had adopted the OTP’s argument and simply held that Art. 63(1) means what it says: “The accused shall be present during the trial.” An absolute presence requirement is obviously consistent with Art. 63(1) — and is generally if not unequivocally supported by the drafting history of the provision.

But that is not what the Appeals Chamber did. Instead, it tried to have it both ways — rejecting an absolute presence requirement and denying Trial Chambers the discretion they need to fashion a presence requirement that will ensure Ruto and Kenyatta show up for trial. Here is the key paragraph:

62. From the foregoing, the following limitations on the discretion of the Trial Chamber to excuse an accused person from presence during trial may be derived: (i) the absence of the accused can only take place in exceptional circumstances and must not become the rule; (ii) the possibility of alternative measures must have been considered, including, but not limited to, changes to the trial schedule or a short adjournment of the trial; (iii) any absence must be limited to that which is strictly necessary; (iv) the accused must have explicitly waived his or her right to be present at trial; (v) the rights of the accused must be fully ensured in his or her absence, in particular through representation by counsel; and (vi) the decision as to whether the accused may be excused from attending part of his or her trial must be taken on a case-by-case basis, with due regard to the subject matter of the specific hearings that the accused would not attend during the period for which excusal has been requested.

This is the worst of both worlds — the kind of mushy, divorced-from-the-text-of-the-Rome-Statute approach to Art. 63(1) that makes the Court seem callow and capricious. Indeed, the Appeals Chamber’s decision sends precisely the wrong message to Kenyatta and Ruto: “hey guys, it’s true that the Rome Statute doesn’t require your continuous presence. But it requires it more often than the Trial Chamber thinks it does. So you’ll just have to hope that the Trial Chamber will apply the test we pulled out of thin air in a manner that doesn’t make it impossible for you to both run Kenya and cooperate with the Court.” I think we know how that will turn out.

Once again, the ICC has shot itself in its foot. Deferral by the Security Council is looking like a better option by the day.

Book Symposium The Electronic Silk Road: Opportunity and Complexity Along the Electronic Silk Road

by Jake Colvin

[Jake Colvin is Vice President of Global Trade Issues at the National Foreign Trade Council.]

How is global trade different in the digital age? As Anupam Chander makes clear in his new book The Electronic Silk Road, the internet is changing who trades, what is traded, and how we trade, all of which have implications and complications for businesses, consumers and policymakers.

Upfront, his book outlines the great promise of the internet to democratize global trade.  Businesses and entrepreneurs around the world can hang a digital shingle to offer goods and services online to a global audience, and consumers and intermediary businesses have new options for tapping into information, goods and services from far away.  While Chander focuses much of his attention on what he labels net-work – functions like medical services from India and customer service operations from the Philippines that can be done anywhere with increasing ease – to illustrate the effect that the internet is having on who trades and what is traded, it is worth putting a finer point on the role that the internet is having on trade in goods.

Thanks to cloud, logistics, financial and related services that reduce the red tape associated with international transactions, small businesses and entrepreneurs can participate in global markets from an early stage on a broad scale for the first time in history.  Many of them are using the internet to sell physical things.

Take Maryland-based Kavita Shukla, who founded a company called Fenugreen that manufactures a low-cost solution to keeping produce fresh for up to four times longer.  She can connect, market and sell her product around the world thanks to services provided by companies including, Google, Intuit and UPS. The online craft marketplace Etsy reports that over 25 percent of its transactions are international.  eBay has produced several studies that quantify extraordinarily high participation of the commercial sellers that operate on its platform in the global marketplace.  The electronic silk road is a critical conduit for physical goods as well as services.

Amid this opportunity, Chander deftly highlights and makes sense of a number of issues that businesses and governments are confronting as they dig into the complexities of engaging in global trade in the digital age, Continue Reading…

Weekly News Wrap: Thursday, October 24, 2013

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Middle East





  • The United States has denied its drone strikes in Yemen and Pakistan and elsewhere infringed international law and said it did all it could to avoid civilian casualties.
  • American and Israeli officials have differed over Iran’s nuclear program, as Israel called for its effective dismantlement and the US suggested safeguards could show that it was peaceful rather than military.


Russia, Moldova, and the EU: Realpolitik as Normative Competition

by Chris Borgen

Today’s New York Times has an overview of Russia’s power politics towards its “near abroad,” countries that used to be part of the USSR.  Some of these countries, such as Armenia, Moldova, and Ukraine, have been debating internally whether to become more integrated with the EU or to rebuild close ties with Russia. Armenia made the news recently for setting aside years of negotiations with the EU and, under considerable pressure from Moscow, announcing that it would join the Russian-led Eurasian Customs Union. While the New York Times article focuses on the foreign policy and economic issues involved, these situations also exemplify the importance of law (both domestic and international) in international relations, because high politics in the “near abroad” is not about the formal acquisition of territory, but the adoption of norms. (For more on this theme see, also, this.)

The New York Times article uses the case of Moldova as an example of how Russia pressures its neighbors: threatening energy cut offs, banning key exports from Moldova, even bringing religion into play. In the case of Moldova, Russia also supports a separatist group that has seized control of Transnistria, the eastern-most section of the country. (As readers of this blog may know, I was part of a group of lawyers from the NY City Bar who wrote a report on the legal issues related to the Transnistrian conflict and, last year, part of an Open Society Foundations supported study comparing the conflicts in Moldova and Cyprus.)

But the heart of the matter is whether Moldova will become more fully integrated into “European” institutions (the EU, first and foremost) or reintegrate with revamped “Russian” institutions (the Eurasia Customs Union, for example). At times a state can be on one side or another of a normative border: Poland is part of the European normative order, Belarus is in Russia’s. In such cases, when normative boundaries coincide with national boundaries the situation is relatively clear. But the issue of which way Moldova will face is still being contested, somewhat within Moldova (particularly by the Transnistrian separatists) and more so by Russia. Thus, Moldova and certain other states in Russia’s near abroad (such as Ukraine) are borderlands between two normative systems, each state containing aspects of both.

When normative systems overlap and jostle within a country, the result can be normative friction. This can relate to domestic laws, such as whether a particular conception of property rights or of human rights will be adopted. It can also concern international legal norms, such as to which treaties a state will become a signatory, which international organizations a state may join, the recognition of national borders, and issues of non-intervention. Any issue that seems to favor one set of normative system over another can become symbolic of a larger struggle. Even when you put up and take down Christmas decorations can turn into a political crisis.

Although this has been the case in Moldova, Armenia, and Ukraine for years, Russia is increasing its pressure now because… (Continue Reading)

Book Symposium The Electronic Silk Road: New Trade Rules for Cross-Border Flows of Information?

by Joost Pauwelyn

[Joost Pauwelyn is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva]

The Electronic Silk Road is a fantastic read, literally bridging Bangalore with Silicon Valley, showing us how the activity of trade has dramatically changed and how these changes require us to think about “Trade 2.0” rules.  Prof. Chander discusses both private and public law issues, domestic and international rules.

I want to focus my comments on international trade law rules, of the WTO type, that is, the rules imposed by treaty on governments, which generally prevent governments from doing certain things (e.g. prevent them from restricting trade or enacting domestic laws that discriminate against foreigners). When discussing “rules” and the internet, internet companies get nervous: they assume that the rules will limit them and thereby limit innovation.  The rules I am talking about here are limiting what governments can do and, in general, are there to protect or enable (not restrict) internet-reliant companies.  Although Silk Road describes in detail what has changed and sets out basic principles as to how rules could respond to these changes, I was, at times, missing a level of detail allowing us to make progress on the ground.

I see two main types of governmental actions that need curtailing by trade rules. First, governments restricting the flow or storage of data across/outside their territorial borders (e.g. a country requiring that Google or Citibank store all of its data within the country, or a country stopping or censoring the flow of information/network connection coming from/going abroad).  Second, governments taking, or eavesdropping on, information stored or transferred by companies or individuals in (or even outside) their territory (e.g. a country forcing Facebook to hand over certain data or “spying” on data transferred over the internet).

Are today’s WTO rules able to reign in these two types of government interventions with the toolbox of either rules on “trade in goods” or “trade in services”? Continue Reading…

Shocker! Russia Walks Away from UNCLOS Arbitration and Will Ignore Netherlands Petition Over Greenpeace Detentions*

by Julian Ku

[Update below] It looks like China has started a trend. In a surprising statement (at least to me), Russia has announced it will not participate in the ITLOS arbitration brought by the Netherlands related to the detention of Greenpeace activists last month.

“The Russian side has informed the Netherlands and the International Tribunal for the Law of the Sea that it does not accept the arbitration procedure in the Arctic Sunrise case, and is not planning to take part in the tribunals,” the ministry said in a statement Wednesday, adding Moscow is still “open to the settlement” of the case. The statement did not elaborate.

The ministry insisted Russia is not obliged to recognize the authority of the maritime tribunal, saying the Russian government does not have to participate in disputes that concern “sovereign rights” and “jurisdiction.”

Hmm. This formulation sounds familiar somehow.  Actually, Russia is citing its UNCLOS declaration, which excludes dispute settlement under UNCLOS “concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction.” But it echoes the Chinese objection as well.

I had written a post on the Netherlands memorial in support of its action against Russia in the International Tribunal for the Law of the Sea seeking “provisional measures”, but I forgot to publish it. Which is just as well.  Because it looks like Russia is going to ignore whatever arbitration proceedings are constituted under Annex VII (following the Chinese example).  I can’t tell from this report, but it may be that Russia may ignore the ITLOS “provisional measures” hearing that is likely to be scheduled soon as well.

As Greenpeace’s attorneys rightly point out, ““If the Russian Federation believes the Tribunal lacks jurisdiction, the normal and proper thing to do would be to raise this at the hearing,”  This would apply to China and the Philippines as well.  If Russia does simply walk away, this is another body blow to the dispute settlement under the UNCLOS system, especially considering that Russia has accepted the jurisdiction of the ITLOS in past disputes.

*After this post went up, I noticed that Russia has also dropped the piracy charges against the Greenpeace activists, charging them now with hooliganism. This doesn’t seem to affect their position on ITLOS arbitration, though. But perhaps settlement will be easier?

Guest Post at Just Security About “Belonging to” and Associated Forces

by Kevin Jon Heller

Just Security has been kind enough to post my reply to an excellent post by Ryan Goodman. Here is the introduction:

In a recent post here at Just Security, Ryan Goodman offered a novel – and characteristically intelligent – defense of the US position that it is involved in a non-international armed conflict (NIAC) not only with al-Qaeda, but also with al-Qaeda’s “associated forces.” According to Ryan, the US is involved in a NIAC with al-Qaeda’s associated forces because they “belong to” al-Qaeda for purposes of the rules of IHL governing targeting and detention. Here is what he said, nominally in response to Christof Heyns’ assertion in his recent UN report on extrajudicial killings that an associated force must “form part” of al-Qaeda for its members to be targetable and detainable:

Nevertheless, the law of armed conflict stipulates that members of armed groups (e.g., AQAP) with a particular relationship to a party to a conflict (e.g., al-Qaeda) are legitimate targets. Specifically, Article 50(1) of Additional Protocol I states that a person cannot be considered a civilian (e.g., for the purpose of lethal targeting) if he is a member of an organized armed group with such an association. That association is defined in Article 4(a)(2) of the POW Convention: “members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict.”

In short, “belonging to” a party to the conflict is a form of an associated group, which renders its members subject to lethal force and detention.

I disagree with Ryan that the concept of “belonging to” can be applied in non-international armed conflict (NIAC). In this post I explain why.

Because Just Security does not have a comment system, interested readers should feel free to leave comments here.

Book Symposium The Electronic Silk Road: The Unexpected Alliance of Trade and Human Rights

by Molly Land

[Molly Land is Professor of Law at the University of Connecticut School of Law]

I’m delighted to be able to take part in this online symposium dedicated to Anupam Chander’s new book, The Electronic Silk Road: How the Web Binds the World Together in Commerce. Chander’s book masterfully brings together a set of debates about technology, privacy, and human rights to consider the pitfalls and promise of regulating Internet trade. In an accessible and engaging way, Chander reorients our thinking about the Internet by locating it firmly in the trajectory of global commerce. While attending carefully to the unique challenges posed by both digitization and networks, he persuasively demonstrates the continued vitality of established doctrines in conflict of laws, trade, and international human rights with respect to some of the most pressing problems we face today in Internet regulation.

To my mind, one of the book’s most interesting and compelling contributions is its discussion of the relationship between trade in services and human rights. Chander rightly notes that trade in goods and human rights have long been in tension with one another, as liberalization of trade is often associated with labor rights violations and other human rights abuses. Trade in services, however, might be an unexpected ally of human rights causes. Information and communication technology companies are providing services, and liberalizing the flow of those services across borders promotes human rights both directly (in the form of freedom of expression) and indirectly (in the form of greater political liberalization). Chander argues that given this relationship, the General Agreement on Trade in Services (GATS) might be considered a human rights document.

Trade law can be an ally of human rights causes in two ways, Chander argues. First, the principle of national treatment limits the extent to which states can discriminate against foreign service providers, including information services. Second, the transparency provisions of GATS could be used to require states to disclose how they are regulating information goods. I think the second of these—the transparency argument—could be incredibly powerful in challenging repressive policies because it will enable advocacy and organizing. It is especially difficult for citizens to hold states accountable for their policies in the area of information and communication technology because such regulation is often invisible. To the extent trade law can be used to make some of this regulation more transparent, that would be a significant gain. This is particularly the case with respect to governments like China that use vague censorship restrictions to incentivize Internet service providers to overblock.

I was also intrigued by the argument that national treatment could be employed in service of human rights. Continue Reading…

Book Symposium The Electronic Silk Road: Comment by Paul Stephan

by Paul Stephan

[Paul B. Stephan is the John C. Jeffries, Jr., Distinguished Professor of Law and David H. Ibbeken ’71 Research Professor at the University of Virginia School of Law.]

I applaud Anupam Chander for picking a great subject for his book. New communications technologies have transformed the way we deliver services by radically lowering the cost of dematerialized, long-distance transactions. The resulting explosive growth of cross-border sales of services is one of the most significant aspects of the modern global economy. There are, of course, a host of books about the Web, some silly cheerleading and some exceptionally good (my favorite is Who Controls the Internet? by my sometimes colleagues Jack Goldsmith and Tim Wu). What Chander seeks to do is bring international law, and especially international economic law, into the mix. He explores how a body of rules developed three decades ago in a pre-Web world (the General Agreement on Trade in Services started in the Uruguay Round, born in 1986) can be brought to bear in the new, radically changed environment.

Much of the book describes the new face of international services. These accounts are apt and vivid. As a legal academic, however, I want more. In general I expect a careful study of a complex set of social relations either to propose a positive theory that links legal developments to social conditions with more or less rigor, or a normative vision of the world that will inspire us to correct unseen problems and cash out unrealized opportunities. I realize these categories are messy. The development of a positive analysis rests on certain normative choices, beginning with the decision to concentrate on one set of phenomena rather than another. A normative vision is incomplete without at least a rudimentary account of how we might get from here to there. But they provide a start.

I take Chander’s project to be at its heart more normative than positive. He reports on the fascinating growth of the information sector in the global economy, but he does not have a more general story about what explains this growth or how one might predict the next transformation. Rather, he wants to manage the transformation, to promote human flourishing, to expand the range of choices people can freely make, to respect local diversity, and to fight tyranny. Continue Reading…

Book Symposium The Electronic Silk Road: Connecting dots in a world of bits

by Mira Burri

[Mira Burri is a  senior fellow and lecturer in law at the University of Bern, Switzerland.]

In early October this year the World Trade Organization (WTO) held its annual Public Forum typically devoted to topics that are key to the world trading system and particularly high on the agenda of the community of the WTO’s 159 Members. The theme of this year’s edition was uniquely framed under ‘Expanding Trade through Innovation and the Digital Economy’. To some observers, the topic appeared somewhat detached from the WTO’s core mandate and daily business and distant from burning concerns, such as financial crisis responses, poverty or other development-oriented actions that demand the concerted effort of the global community.

Yet, the casual observer may be mistaken – at least in two aspects. The first is more evident and has to do with the deep impact that digital technologies, and specifically the Internet, have had and continue to have upon numerous facets of societal life. The associated transformations range from the trivial to the momentous – from online shopping, through the emergence of global value chains, to the very ways we work and write, create, distribute and access information − bringing distant geographical locations within instantaneous reach, millions of people organized within hours, encyclopaedias and virtual libraries produced on a collaborative basis. The world of brick-and-mortar trade, of freighter shipments, border inspections, duties and stamps, has also been thereby profoundly changed. For the first time is trade in services unleashed on a global scale, and this definitively goes beyond the classic ‘the world is flat’ example of outsourcing call-centres to India.

The second aspect is more illusive and possibly escapes a clear-cut answer. It has to do with the regulation, or to put it more broadly – with the governance, of the so emerged world of cyber-trade. Who, if anyone, is in charge of it? Does jurisdiction matter and if yes, how does it matter? And then also and more fundamentally, is this cyber-trade, as an extreme and sweeping expression of globalization, something that we should cherish and foster, or rather restrain in order to preserve non-economic and possibly more critical interests, such as national security, freedom of speech, and privacy – both in the online and in the offline spaces?

Continue Reading…

Guest Post: The Truth About Criminal Jurisdiction Over U.S. Troops in Afghanistan: Questions for Secretary of State Kerry, the Loya Jirga… and National Public Radio

by Chris Jenks

[Chris Jenks is an assistant professor of law and directs the criminal justice clinic at the SMU Dedman School of Law. He previously served as Chief of the U.S. Army’s International Law Branch, where he was responsible for the Department of Defense’s foreign criminal jurisdiction program. This post expands and revises  comments published by Al Jazeera America.]

Beware the U.S. expressing “great respect” for a State’s sovereignty.  You’re likely to find what follows more akin to the opposite — of both respect and sovereignty.

Such is the case with U.S. Secretary of State John Kerry and his recent misstatements on foreign criminal jurisdiction over U.S. service members and the US Afghan Bilateral Security Agreement (BSA).  Under the terms of the BSA, the U.S. would retain exclusive jurisdiction over any and all criminal offenses U.S. service members commit in Afghanistan. Secretary Kerry claimed on more than occasion that this is the same jurisdictional framework utilized wherever U.S. forces operate. It is not.

On October 12th, Sec Kerry, at a press conference in Afghanistan and while standing next to President Karzai, made a series of statements concerning the BSA’s criminal jurisdiction.  Among them,

[w]ith respect to the jurisdiction issue, we have great respect for Afghan sovereignty. And we will respect it, completely. And that is laid out in this agreement. But where we have forces in any part of the world, and we unfortunately have them in a number of places in the world – in Japan, in Korea, in Europe, in other parts of the world, Africa. Wherever our forces are found, they operate under the same standard. We are not singling out Afghanistan for any separate standard. We are defending exactly what the constitutional laws of the United States require.

Despite valiant Department of State attempts to “clarify” the Secretary’s remarks, the Washington Post initially awarded Sec Kerry “two Pinocchios”, meaning his statements at the Afghanistan press conference contained significant omissions and/or exaggerations.

Kerry then stripped away language which could be mistaken for accurate in an October 17th National Public Radio interview, claiming that “[There] is the question of who maintains jurisdiction over those Americans who would be [in Afghanistan]. Needless to say, we are adamant it has to be the United States of America. That’s the way it is everywhere else in the world.”  This  streamlined version of untruth prompted the Post to elevate Sec Kerry to a  “three Pinocchios” award for “significant factual errors and/or obvious contradictions.”

Why Sec Kerry’s misstatements matter

  1. Sec Kerry’s false jurisdictional equivalency claims undermine his, and the U.S’. credibility, as well as Afghan President Hamid Karzai’s ability to explain the BSA to an upcoming Loya Jirga, whose approval is needed if U.S. troops are to remain in Afghanistan after 2014. Successfully concluding the BSA now depends on the Loya Jirga not realizing that any reliance on representations by the U.S. Secretary of State is misplaced. This bodes poorly for the agreement, and the strategic partnership between the two countries. Continue Reading…

Book Symposium: Comments on Anupam Chander’s The Electronic Silk Road

by Michael Birnhack

[Michael Birnhack is a Professor of Law at Tel Aviv University]

Anupam Chander’s new book, The Electronic Silk Road is an admirable scholarly achievement. Chander draws our—the global community of cyberspace users—attention to the increasing globalization of information-based services. He discusses the pros and cons of what he calls cybertrade or Trade 2.0, or more specifically, net-work, with much clarity, drawing on a wide array of examples, ranging from North to South. The book provides a rich description and timely observations, as well as a sound and coherent set of principles to address the new challenges. The book is a highly important contribution to the discussion about international trade, globalization studies, and to the on-going debate about the role of the law in a dynamic technological setting. In fact, Chander paves a new path in these discourses.

The trigger is the observation that alongside global trade of products, we increasingly experience net-work, which is (p. 2) “information services delivered remotely through electronic communications systems.” Importantly, these services are provided in both directions of the North-South global division. Net-work raises a regulatory challenge: which law should govern? Chander examines various options—should it be the law of the country that exports the services or the law of the importing country? His judgment favors the latter: “importing of services should not require us to import law as well” (p. 6). In other words, he would require global service providers to conform to the local law at the country of destination. This is the principle of glocalization, as applied to cybertrade, which he elaborates in Chapter 8. Glocalization’s role is to curtail the race to a deregulated bottom: under a legal regime that allows global service providers to apply their own law, i.e., the law of origin, they are likely to choose and operate from the most convenient regime, to their benefit, at the expense of the global consumers. Glocalization does not allow this race. Importantly, Chander insists that glocalization should be consistent with international norms and is supplemented by harmonization, where possible.

Glocalization is the meeting point of the global and the local. Continue Reading…

Book Symposium: The Electronic Silk Road by Anupam Chander

by An Hertogen

This week, we are pleased to host a symposium on The Electronic Silk Road (Yale University Press) by Anupam Chander (UC Davis). The publisher’s description is:

On the ancient Silk Road, treasure-laden caravans made their arduous way through deserts and mountain passes, establishing trade between Asia and the civilizations of Europe and the Mediterranean. Today’s electronic Silk Roads ferry information across continents, enabling individuals and corporations anywhere to provide or receive services without obtaining a visa. But the legal infrastructure for such trade is yet rudimentary and uncertain. If an event in cyberspace occurs at once everywhere and nowhere, what law applies? How can consumers be protected when engaging with companies across the world? In this accessible book, cyber-law expert Anupam Chander provides the first thorough discussion of the law that relates to global Internet commerce. Addressing up-to-the-minute examples, such as Google’s struggles with China, the Pirate Bay’s skirmishes with Hollywood, and the outsourcing of services to India, the author insightfully analyzes the difficulties of regulating Internet trade. Chander then lays out a framework for future policies, showing how countries can dismantle barriers while still protecting consumer interests.

Commentators will be Michael Birnhack (Tel Aviv University), Paul Stephan (Virginia), Molly Land (UConn), Mira Burri (World Trade Institute), Joost Pauwelyn (Graduate Institute) and Jake Colvin (National Foreign Trade Council), and hopefully also you as our readers!


Events and Announcements: October 20, 2013

by An Hertogen

Calls for Papers

  • The Journal of World Investment and Trade (JWIT) is under new editorial responsibility starting with the first issue of 2014. It operates as a double-blind peer-reviewed journal and focuses on the law relating to foreign investment relations in a broad sense, including the law of investment treaties, investor-State dispute settlement, domestic law relating to foreign investment, and relevant trade law aspects, such as services, public procurement, trade-related investment measures, and intellectual property, both under the WTO and PTAs. JWIT publishes articles, notes, case comments, and book reviews, and welcomes proposals for special issues in its fields of interest. For further information, including the full editorial board and instructions to authors, please visit the journal’s website. Inquiries and submissions may be sent here.
  • The eighth annual International Graduate Legal Research Conference (IGLRC) will be held on April 14-15, 2014 at King’s College London.The committee welcomes abstracts considering all aspects of legal scholarship. Abstracts of maximum 300 words need to be submitted online by December 6, 2013. More information is here.
  • The Journal of Law Teachers of India (JOLT-I) is inviting Articles/Notes and Comments from faculty members on any contemporary legal issue, for its next issue which is expected to be published in April 2014. An abstract of approx. 1000 words should be sent latest by October 31, 2013 with the final paper due by December 31, 2013. More information is available here.
  • Trade, Law and Development (TL&D), a biannual, student-run, academic journal published by National Law University, Jodhpur, India, is calling for papers for a special issue on Trade and Climate Change. The deadline for submissions is January 31, 2014. More information is here.
  • 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.  An abstract of no more than 750 words should be e-mailed no later than November 1, 2013. Authors of the submissions selected for the conference will be notified no later than December 20, 2013. A prize will be awarded for the best paper submitted by a graduate student.  To be considered for the award, in addition to submitting an abstract by the above deadline, graduate students whose abstracts are accepted for the conference must also submit their papers in their final form by January 31, 2014, with the following subject line:  “Submission for Graduate Student Prize.”  Papers received after January 31, 2014, will not be considered for the award. Final papers by faculty members—as well as by graduate students who do not wish to be considered for the Graduate Student Prize—will be due by email no later than March 1, 2014. More information is here. Any questions can be directed to Ozan Varol. 


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

Legally Distinct Corporate Entities and Agency Theory in Bauman v. Daimler AG and Kiobel

by Kenneth Anderson

Guest commentary here at OJ by Adam N. Steinman (Seton Hall) on the Supreme Court’s oral argument in Daimler AG v. Bauman, along with earlier comments on the case by John Bellinger at Lawfare, have been helpful to me – no expert in civil procedure, certainly – in understanding issues of jurisdiction in Daimler, Kiobel, and other such cases.  As Professor Steinman notes, although Daimler is an ATS case, the question for SCOTUS argument is much broader than merely the ATS statute alone.  The Court’s question runs to the kinds of contacts necessary to sustain jurisdiction not just across borders, but across legally distinct (though, through share ownership, economically interlinked) corporate entities that make up the contemporary multinational enterprise:

“[W]hether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State.”

This is a different question from that presented in Kiobel, which addresses so-called “foreign-cubed” ATS cases. It is instead to ask when it is proper for a US court to find jurisdiction over a foreign corporate entity on the basis of of a US corporate subsidiary.  Chief Justice Roberts flagged the importance of this further question at the very end of his Kiobel opinion, which relied upon the presumption against extraterritoriality; for something to “touch and concern” the United States, he said, sufficient to satisfy jurisdictional requirements under the ATS, contacts would have to be more than mere corporate presence.  Corporations are often

present in many countries, and it would reach too far to say that mere corporate presence suffices … a statute more specific than the ATS would be required.

Daimler offers a case premised on this issue.  What contacts, activities, and relationships across legally distinct corporate entities suffice?  What is merely “mere” and doesn’t? The Ninth Circuit’s ruling in favor of jurisdiction over Daimler AG (a foreign corporation – not its US, Delaware-chartered corporate subsidiary) relied upon an agency theory that had the effect, with respect to jurisdiction at least, of disregarding the separation of distinct corporate legal entities in favor of treating the multinational enterprise as a unitary enterprise.  The agency theory permitted the Ninth Circuit to find, in turn, “general jurisdiction” over Daimler AG.

Professor Steinman gives a much more nuanced account of this, but at a crude level, it’s a two-step process using agency theory to disregard the legal walls between corporate entities, and then a “general jurisdiction” assertion over the whole enterprise.  This means, however, that if the Court is inclined (as observers widely think it is) to rule for Daimler, it has a variety of ways and places where it could fault the Ninth Circuit’s steps to general jurisdiction, some broader than others.

In an essay on Kiobel for the most recent Cato Supreme Court Review, I remarked that it might turn out the real work of the Chief Justice’s Kiobel opinion might be done, less by the presumption against extraterritoriality, than by the answer to final, dangling question: how much “corporate presence” is enough?

In earlier days, ATS plaintiffs didn’t see themselves having to worry about questions contacts with the forum, jurisdiction over persons or the territorial locus of activities.  Jurisdiction was satisfied by having (only) a foreign plaintiff and a violation of the law of nations or a treaty of the United States. Sosa v. Alvarez-Machain put some (delphic) limits on the nature of the “law of nations” violations that had to be at issue, but those were in terms of subject matter, not where the alleged violations took place or by what kind of a defendant. Kiobel made territory, contacts, presence, nationality of defendants an issue running beyond beyond Sosa‘s subject matter constraints.  I added in my Cato essay, comparing Kiobel to Daimler:

[T]he questions [in Daimler] are not the same as an acknowledged “foreign-cubed” case [Kiobel] because at issue is whether and what contact are sufficient to establish perosnal jurisdiction.  Bauman [v. Daimler AG] is really an attempt by the plaintiffs to turn a foreign-cubed case into one by which agency theory provides a path to finding personal jurisdiction – and thus is no longer entirely “foreign” or premised purely on “universal” considerations.

Analysis and discussion of these ATS cases has mostly been in terms of cross-border jurisdiction. I’m pretty sure corporation law scholars have not taken note; I teach both Business Associations and International Business Transactions and don’t see stirrings among scholars of business organizations.  It’s tangential to corporate law, at one level, of course. Still, just under the surface of the jurisdiction issues is a question about the robustness of corporate form. (Note: Since posting this, I’ve been reading more extensively through the amicus briefs – the corporate questions were thoroughly discussed there, and they do show up throughout the oral argument; I’ve added one quotation from Justice Breyer in the oral argument, below.)

How much legal separation (that is, legal insulation) does legally distinct corporate existence confer, whether for purposes of jurisdiction or liability? Seen from within corporation law doctrines, the question is one of piercing the corporate veil, at least to get at other corporations that have links to each other through share ownership, even if not to get to ultimate shareholder-investors. The opening questions from Justice Scalia to the Daimler AG counsel ask, after all, about the legal effects of the “corporate form” (not corporate forum, as the initial oral argument transcript puts it). Late in the argument, Justice Breyer says to counsel to Bauman (the Argentine plaintiffs in the underlying ATS suit):

You’re seeing it through the lens of jurisdiction. I’m not. I’m seeing it through the lens of corporate law. Five shareholders get together from outside California and they set up a corporation in California. Why? To insulate themselves from liability, particularly lawsuits. Now, instead of those five shareholders, everything is the same, but now it’s a German corporation and suddenly, they can’t insulate themselves from the lawsuits in California. I think it unlikely that California would have such a corporate law, whether it goes by the name of jurisdiction or some other name. But that’s a State law question. So what am I supposed to do?

As I remarked in my Kiobel essay, Daimler AG is an attempt by plaintiffs to

sidestep the formal doctrine of legal separation of corporate entities; it asserts a view that multinational corporate enterprises are to be treated as essentially one economic entity.  This is, indeed, a plausible view of their globally unitary economic substance, but by arguing for economic substance over legal form, it renders impossible any real legal principle for why any particular national court should or should not hear a case.

Not to mention (as I forgot to do in that essay) that this agency theory would seem to be equally fatal to any legal form over economic substance basis for respecting corporate forms in US domestic settings as well – and that does not seem likely to be a result embraced by US courts any time soon. Justice Sotomayor asks why this case shouldn’t be settled on the economic substance over legal form argument of tax cases dealing with attribution of income; the response – correct, in my view – is that tax cases have consistently been viewed very differently from personal jurisdiction cases.  But the oral argument in this case leaves me wondering whether the next rounds of cases in the ATS and cross-border jurisdiction areas might be less about jurisdiction as such, and more about the strength of the walls that separate corporate entities across borders – at least as an essential underlying predicate to the jurisdictional issues as such.  How much will the corporate form be respected in establishing jurisdiction in cross border cases?

The broad agency theory embraced by the Ninth Circuit in Daimler will be swept away – I can’t imagine that it won’t – but there can much more nuanced approaches to it. The federalism issues of Daimler are complicated, certainly, and might mix up easy predictions about how justices will view the issues, certainly; they touch not just federal jurisdiction issues but also questions about state corporation law (including state-to-state issues, given that the US subsidiary is incorporated in Delaware).

Though I happen to think that there might be circumstances in which corporate form should not necessarily be treated the same in domestic situations as cross-border ones, I’m think the Court should not shift the understanding of the corporate form or increase – in the context of global investment and business activities – uncertainties surrounding its legal protections.  Certainly, judging by the amicus briefs, the United States’ trading partners abroad do not want to see increases in uncertainty over the separation of entities, whether in jurisdiction or liability.  On whatever ground the Court rules, however, broad or narrow, I’m pretty sure John Bellinger is right to say that the Court would not have accepted the case unless …

it plans to reverse the Ninth Circuit.  Conservative justices are loathe to miss an opportunity to try to curb the Ninth Circuit’s consistent efforts to be a world court, and the more liberal justices may have wanted to demonstrate (as Justice Breyer argued in his concurrence in Kiobel) that the extraterritorial reach of the Alien Tort Statute can be limited by other jurisdictional restrictions.

Weekend Roundup: October 12-18, 2013

by An Hertogen

This week on Opinio Juris, Tomer Broude completed his trilogy on behavioral international law. Also continuing from last week was Carsten Stahn’s rejoinder to Harold Koh on intervention and the use of force, and Jens Iverson’s guest post highlighting the underlying commitments of Professors Stahn and Koh.

We also published guests posts by Faiza Patel on the OPCW and by Adam Steinman on this week’s SCOTUS oral argument in Daimler v Bauman.

Of our regular bloggers, Deborah disagreed with Jack Goldsmith on the rarity of capture operations overseas, but outlined other concerns with this approach to counterterrorism. Julian pointed out how China’s understanding of the peaceful settlement of disputes excludes international adjudication. Despite finding much to like in the PTC’s decision in al-Senussi, Kevin was troubled by the inconsistency with the Gaddafi decision on the right to counsel. He also was not impressed by the PTC invoking Libya’s security situation.

Finally, Jessica wrapped up the news and listed events and announcements.

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

Guest Post: SCOTUS Oral Argument in Daimler v. Bauman

by Adam N. Steinman

[Adam N. Steinman is Professor of Law and Michael J. Zimmer Fellow at Seton Hall Law]

Cross-posted at Civil Procedure & Federal Courts Blog

This week the Supreme Court heard oral argument in Daimler AG v. Bauman (covered earlier here and here). Daimler resembles last Term’s Kiobel case, in that it involves claims against a foreign defendant (Daimler) for human rights and other violations committed abroad (in Argentina, during the “dirty war” of the 1970s and 1980s) under the Alien Tort Statute (ATS). But the question for which the Court granted certiorari in Daimler involves personal jurisdiction and is not limited to ATS cases: “whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State.”

During the argument, plaintiffs’ counsel acknowledged that their ATS claims faced an “uphill struggle” in light of Kiobel, but they are also pursuing state law and foreign law claims – for which personal jurisdiction would remain a live issue. Given the question presented, the more significant SCOTUS precursor may be the 2011 Goodyear decision, not Kiobel. Writing for a unanimous Court, Justice Ginsburg wrote in Goodyear that general jurisdiction over corporations is proper “when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” She cited (1) a corporation’s principal place of business and (2) its state or country of incorporation as “paradigms” for general jurisdiction; but it remains unclear what else could render a corporation “essentially at home” in a particular forum. In particular, Goodyear acknowledged – but did not address – the argument that distinct corporate entities might be treated as a “single enterprise” for jurisdictional purposes. In Daimler, the Ninth Circuit found that California had general jurisdiction over Daimler based on the activities its American subsidiary, Mercedes Benz USA (MBUSA).

The most common reaction to this week’s oral argument has been that the Justices were quite skeptical of the idea that Daimler was subject to general jurisdiction in California. That may be so, but several interesting issues came up during the argument, and there are still a number of different ways the Court could ultimately dispose of the case (some of them quite narrow).

One topic of discussion was whether state law or federal law governed the extent to which MBUSA’s contacts could be attributed to Daimler. Under Federal Rule of Civil Procedure 4(k)(1)(A) –the basis for personal jurisdiction in this case – a California federal district court can exercise personal jurisdiction if a California state court could exercise personal jurisdiction. Thus, jurisdictional restrictions in state long-arm statutes can confine federal courts as well. California’s long-arm statute, however, extends as far as the 14th Amendment allows. It would seem, then, that personal jurisdiction ultimately hinges on the federal question of whether, on these facts, the 14th Amendment permits a state court to assert general jurisdiction over a foreign parent based on the activities of its subsidiary. Questions by Justices Sotomayor and Alito suggested that this was indeed a federal issue. Justices Scalia and Breyer, however, inquired repeatedly about state law. One line of questioning by Justice Breyer suggested the view that, just as state corporations law defines when a parent company can be liable for a subsidiary’s conduct, so too would state corporations law define when a parent can be subject to jurisdiction based on a subsidiary’s activities.

Another significant issue in Daimler is whether Daimler waived or forfeited certain arguments against personal jurisdiction. Continue Reading…

Weekly News Wrap: Thursday, October 17, 2013

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Middle East


  • US military forces have captured Latifullah Mehsud, a senior commander with the Pakistani Taliban, according to the US State Department.
  • Japanese authorities may have underestimated by 20 percent the radiation doses workers got in the initial phase of the Fukushima plant disaster, a Japanese newspaper reported citing a U.N. panel.





Jens Iverson Guest Post: The New Haven School on Syria–Observing Professors Koh and Stahn

by Jens Iverson

[Jens Iverson is a Researcher for the ‘Jus Post Bellum’ project at the Grotius Centre for International Legal Studies, part of the Law Faculty of the University of Leiden.]

The debate on the legality of a U.S. strike in Syrian territory is unlikely to produce consensus, in part because those involved in the debate take fundamentally different approaches to international law.  Unless the underlying commitments of each approach are brought to the foreground, contributors to the debate risk talking past each other.  As a result, an important opportunity will likely be lost.

Prof. Harold Hongju  Koh, formerly of the U.S. State Department and now back at Yale, argued in favor of the potential legality of a U.S. strike in Syrian territory, as outlined by the U.S. government before the plan was placed on indefinite hold.  Prof. Carsten Stahn of Leiden University critiques Koh’s argument, ultimately supporting the bar on the use of armed force absent self-defense or U.N. Security Council authorization.  Koh then responded to Stahn and others, largely reiterating his earlier points, and Stahn provided a further rejoinder.

I will not argue the merits of the debate, but rather highlight issues central to each scholar’s approach that merit further discussion by both sides.  Koh’s emphasis on the unacceptable results of a “rigid” approach is not likely to persuade a positivist focused on existing law.  Stahn’s exposition of possibilities and restrictions within the existing law may seem slightly beside the point for a reader who finds the likely results of restrictions on the (just) use of force intolerable.

For the debate to continue productively, a good first step would be to candidly recognize the potential limitations of both positions.  Restrictions on the use of force, necessary to limit international armed conflict, may result in the commission of atrocity crimes that cannot be deterred by non-violent means.  Loosening restrictions on the use of force, even with the best of intentions, not only increases the potential frequency and intensity of armed conflict, but also may weaken the authority and function of international law more generally.  These are issues that should be tackled head-on, not minimized.

I focus primarily on these blog posts by these two professors because I think they are exemplary in both senses of the word.  They are among the most well-argued pieces on the subject, and they demonstrate the strengths of their respective positions.

Koh’s Approach:

Koh’s emphases—normative values, connecting law and policy, and a lawyer’s duty to play a leading and constructive role in interpreting law—are no accident.  They are a direct outgrowth of his long and fruitful engagement with the New Haven School of International Law.  In Koh’s 2007 evaluation of the New Haven School, he identifies a number of commitments the School has made, including normative values and connecting law and policy.  He emphasized that competing schools of international law such as those espousing a commitment to a “new sovereigntism” hold a depressing vision of international lawyers as yes men or scriveners, rather than architects, public servants, or simply “lawyers as leaders.”  In Koh’s 2001 An Uncommon Lawyer, he lovingly recalls examples of lawyers as “moral actors” who “guide the evolution of legal process with the application of fundamental values.”  In one of the most cited international law articles of all time, Koh’s 1997 Why Do Nations Obey International Law, he notes that the New Haven School “viewed international law as itself a decisionmaking process dedicated to a set of normative values” in contrast to “a set of rules promulgated by a pluralistic community of states, which creates the context that cabins a political decisionmaking process.”   (He also, notably, critiques past failures of the New Haven School and notes the critiques of others, demonstrating his own intellectual flexibility.)  In Koh’s 1995 A World Transformed, he recalls the 1974 founding of Yale Studies in World Public Order (which later became the Yale Journal of International Law) and recalls the demand for an evaluation of an ethical World Public Order, refreshed through the decades by scholars, including Koh himself. Continue Reading…

Behavioral International Law: What Is It Good For?

by Tomer Broude

[Tomer Broude is Vice-Dean and Sylvan M. Cohen Chair in Law at the Faculty of Law and Department of International Relations at the Hebrew University of Jerusalem.]

Having set out general considerations and a research methodology framework for “Behavioral International Law” in previous posts, some readers might be wondering how this all cashes out for international law as a discipline?

In their path-breaking 1999 YJIL article on economic analysis of international law, Jeffrey Dunoff and Joel Trachtman noted that “almost every international law research subject could be illuminated, to some degree, by these research methods” [referring to economic analysis]. With similar caveats, it is tempting to say something similar and related about behavioral analysis and international law. Behavioral international law is not a ‘theory of everything’. Neither is it a normative framework of analysis, as such. But properly constructed behavioral research selectively employing the methodologies I describe here can significantly increase our knowledge in all areas of international law, with respect to many problems and puzzles.

In my article, I developed three examples that cover the entire spectrum of levels of analysis as well as research methodologies. In all of them, a mere theoretical application is sufficient to stimulate discussion by posing alternative hypotheses and explanations, but if one is concerned with empirical accuracy, field studies and experimental work is necessary. Moreover, the examples – essentially three mini-articles – cover diverse areas of international law (treaty law, WTO dispute settlement and international humanitarian law). I will briefly summarize two examples.  Continue Reading…

China’s Definition of the “Peaceful Settlement of International Disputes” Leaves Out International Adjudication

by Julian Ku

China’s U.N. Ambassador made a typically anodyne statement recently to the U.N. General Assembly on the Rule of Law at National and International Levels. But there are a few interesting nuggets worth noting that reflect China’s skeptical attitude toward international adjudication.

Anyone who follows the Chinese government’s diplomatic statements will know that it repeatedly stresses the U.N. Charter’s obligation on states to seek peaceful settlements of international disputes.  But the Chinese here and elsewhere define this obligation more narrowly than many international lawyers or other states might define it.  From the “Rule of Law” statement:

The Chinese government actively upholds peaceful settlement of disputes, proposes to settle international disputes properly through negotiation, dialogue and consultation, thus maintaining international peace and security.

So far so good.  But for many international lawyers, and for many states, the “peaceful settlement of international disputes” would also include other means listed in Article 33(1) of the Charter.

The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

(Emphasis added.)

Now Article 33(1) simply lists options, it does not mandate all states use every one of these processes to resolve disputes.  But it is striking how the Chinese government goes out of its way to downplay arbitration and judicial settlement from its public statements on “peaceful settlements of disputes” and in a statement about the importance of the rule of law at the international level.  Indeed, this particular statement on the rule of law goes out of its way to denounce the abuse of arbitration and judicial settlement.

The Chinese delegation believes that the decision to resort to arbitrary or judicial institutions to settle international disputes should be based on the principles of international rule of law and premised on equality and free will of states concerned. Any action to willfully refer disputes to arbitrary (sic) or judicial institutions in defiance of the will of the states concerned or provisions of international treaties constitutes a violation of the principles of international rule of law and is thus unacceptable to the Chinese government.

Hmm… I wonder what country has willfully referred a dispute to arbitration in defiance of China’s will recently?

I am not criticizing China’s legal position here, which seems eminently defensible and reasonable.  I do think that its approach, which privileges a state’s will and “sovereign equality” as a principle of international law, will naturally lead it to de-emphasize arbitration and judicial settlement. And since China’s opposition to the Philippines’ arbitration is based on a theory of state non-consent and lack of jurisdiction, I think it is unlikely to climb down from this position and accept the legitimacy of the UNCLOS arbitration.

Which is why I find it hard to accept the theory put forth by the Philippines lead U.S. counsel, Paul Reichler, as to why China will ultimately accept the arbitral tribunal award in that dispute. In an interview in the WSJ, Reichler relies on the reputational damage China will suffer if it defies the arbitral tribunal and the advantages China would get out of a “rules-based” system.  But China’s view of a “rules-based” system does not necessarily require it to submit to arbitration to set the “rules.”  China already has a robust vision of how it can be a “rule of law” nation and avoid arbitration and judicial settlement. Nothing the UNCLOS tribunal does will likely change this view.  Indeed, to the extent that other nations share its views, it will also lessen any reputation damage it suffers from a negative award.

Guest Post: The OPCW Grows Up

by Faiza Patel

[Faiza Patel is the Co-Director of the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law]

In the decade that I worked at the Organization for the Prohibition of Chemical Weapons in The Hague, few people outside the arms control community knew about my employer. Now, of course, everyone is talking about the OPCW as its inspectors undertake the difficult and dangerous task of monitoring the destruction of Syria’s chemical weapons stockpile. The award of the Nobel Peace Prize to this previously low-profile outfit has only piqued interest further.

So what is the OPCW and what does it do?

The OPCW is an inter-governmental organization charged with making sure that countries comply with their obligations under the Chemical Weapons Convention. For the past 16 years it has been doing so without much fanfare. As the Nobel committee made clear, the OPCW’s contribution to world peace is based on this long record, not just for stepping up in Syria.

The Chemical Weapons Convention, which came into force in 1997, is one of the most important achievements of the post-Cold War period. It is unique amongst arms control treaties because it bans not just the use, but also the stockpiling, of an entire category of weapons (In contrast, the Nuclear Non-Proliferation Treaty allows the five permanent members of the Security Council to maintain nuclear arsenals, although they are meant to be working towards eliminating them.) Countries that join the treaty are required to declare any chemical weapons they hold, as well as related facilities, and to get rid of them under international supervision. They must also undertake to never develop a chemical weapons capacity.

Under the treaty, countries were required to destroy their chemical weapons by 2012. Substantial progress has been made towards this goal, with approximately 80 percent of chemical agent stockpiles destroyed. Unfortunately, the two major possessor states, the United States and the Russian Federation, have not yet finished. They are, however, slated to finish up over the next few years and most experts are confident that both countries will eventually fulfill this commitment.

In addition to monitoring the elimination of chemical weapons, the OPCW has important non-proliferation mandate that will continue even after all weapons stockpiles are gone. Facilities producing dual use chemicals – such as Thiodiglycol, which is used to make ink but can also be used to produce mustard gas – are periodically inspected to ensure that toxic substances are not diverted to weapons uses. Since 1997, the organization has undertaken some 1900 of these types of inspections. Of course this represents only a fraction of the industrial facilities that deal in chemicals that could be turned into weapons, but the fact that countries allow inspections increases confidence that they are committed to the goals of the treaty.

Despite this impressive record, the OPCW faces a number of challenges as it embarks on the Syrian mission. Continue Reading…

Carsten Stahn Guest Post: On Intervention, Narratives of Progress, Threats of force and the Virtues of Case-by-Case Assessment–A Rejoinder to Koh (Part III)

by Carsten Stahn

[Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University and Programme Director of the Grotius Centre for International Legal Studies. He is Co-Editor-in-Chief of the Leiden Journal of International Law, Executive Editor of the Criminal Law Forum and project leader of the Jus Post Bellum Project. An earlier post on this appears here.]

Harold Koh and Daniel Bethlehem deserve credit for having launched this important and timely debate. Koh has formulated an excellent reply to critiques to his post which stands in the best tradition of debate over the prohibition of the use of force. As we all known, Article 2 (4) has been declared dead and rejuvenated too many times. It is thus legitimate to have struggles as to the proper way forward. I see merit in the need to map ‘current law onto modern reality’.  But I would argue that some of the underlying elements of his existing proposition of an ‘affirmative defence are rooted in tensions that are unlikely to be solved through discourse over the creation a new substantive exception to the prohibition of the use of force. A case-by-case assessment may be ultimately better than an abstract rule to accommodate the problems inherent in a formulation of a doctrine that has been controversial for centuries.  I would like to highlight three aspects that may require deeper reflection in the debate: (i) narratives regarding ‘progress’, (ii) the relationship between ‘threat of force’ and ‘use of force’, and (iii) the choice of the appropriate methodology for the way ahead.  

1. Observational standpoints and narratives of progress

Firstly, it is important to clarify observational standpoints. Koh presents change to the rule a ‘progress’ and adherence to it as stalemate. I have doubt whether the debate can be adequately addressed, let alone resolved, based on the dichotomy between a progress-adverse ‘absolutist’ view, represented by the illegal per se rule, and a modern ‘reformist ‘view’ which would argue that the rule is not ‘black and white’. It is an oversimplification to divide scholarly opinion into these two camps. Most international lawyers would acknowledge that the Charter is a ‘dynamic instrument’. It is a given, and not a point of controversy’ that it should be interpreted in light of its objectives and purposes. There are cases in which Art. 2 (IV) does not prohibit the use of force, such as intervention by invitation which raises difficult issues of the legitimacy consent in the context of civil war (as noted by Jordan Paust). The ICJ recognized in Nicaragua (Judgment, 27 June 1986, para. 175) that conventional and customary law on the use of force are not necessarily identical in content.  Even proponents of a strict interpretation of Article 2 (4) recognize ‘shades of grey’ and options for development. There may thus more agreement than divide.

In my view, Koh takes a shortcut by criticizing international lawyers for having ‘become more comfortable stating rules than in figuring out how international law might help to push unfolding events towards the right resolution’. The roots of the controversy lie deeper. Koh’s position is based on a specific approach towards international law. His argument is based on the premise that international law is an instrument of problem-solving and a tool to facilitate decision-making processes over war and peace. This approach advocates different prerogatives than a more systemic vision of international law that regards norms and institutions as the centre of a normative system that protects collective interests and values and constrains behavior. This tension has been inherent in approaches to international law for decades.

The main problem with Koh’s position is not so much the normative content of the proposition, i.e. the claim that use of force may in some circumstances be in the spirit of Charter principles and help ‘protect human rights. The fundamental difficulty of Koh’s argument is that it reduces the options for accountability of military action.  It shifts the balance from a centralized enforcement system to a decentralized system where nations become the arbiters over the legality of their claims to intervention. This causes fears and anxieties among many UN members. Koh’s plea for new abstract regulation would give formal recognition to the claim that the Council is an option à la carte than can be turned on and switched off in ‘hard cases’ where there is no agreement. Giving up this constraint weakens leverage for compliance and the need to justify choices of behavior before a collective forum, in circumstances in which international law is most important in debate. This is a position that many nations will be reluctant to sacrifice for the gain of greater clarity on the rule.

One of the main dilemmas of ‘humanitarian intervention’ has been the question of ‘agency’, i.e. that action is carried out in the name of others. It has been inherent in humanitarianism since it its inception. R2P mitigated this dilemma through recourse to collective response schemes.  Koh’s suggested new rule turns a ‘blind eye’ to this. It fails to engage with the question how intervening nations could claim authority to speak for others/victims.  In the African Union, this dilemma has been mitigated by an institutional solution, i.e. consent under Articles 4 (h) and (j) of the Constitutive Act which recognizes

‘the right of the Union to intervene in a member State pursuant to a decision of the Assembly in respect of grave circumstances, namely; war crimes, genocide and crimes against humanity’.

Koh’s suggested norm does not address such institutional safeguards.  It simply uses institutional support as one optional parameter to support the claim for legality. He suggests that the claim for exemption from wrongfulness would be  ‘strenghtened’ if intervening nations could demonstrate ‘that the action was collective’. This may simply not be enough. Continue Reading…

Speaking of Evolving Approaches to Counterterrorism II

by Deborah Pearlstein

Further to the topic of how the U.S. can/should combat terrorism without, as President Obama puts it, “keeping America on a perpetual wartime footing,” Marty Lederman and Mary DeRosa have a post up at Just Security highlighting the recent U.S. operations in Somalia and Libya as examples of what that future might look like. Among its features, a preference for capture, interrogation and criminal trial in U.S. federal courts over more lethal forms of targeting. (This has indeed been the Administration’s position on how it approaches counterterrorism operations overseas for the past several years.)

Jack Goldsmith is skeptical about how much of a model captures like Al-Libi’s can be; he argues, among other things: “Capture operations in foreign countries will only be attempted when the foreign government consents (or its non-consent will not be a large political problem), and the target is high-value, and the threat of troop and civilian casualties is quite low. They will be attempted, in other words, very rarely, and thus the Article III criminal process for foreign terrorists will be used very rarely.”

On this point, I have to disagree with Jack. It was only a few months ago we were talking about, for example, the foreign capture and federal criminal prosecution of Sulayman Abu Ghaith, Osama bin Laden’s son-in-law. Then there was Ibrahim Suleiman Adnan Adam Harun, an al Qaeda operative captured in Italy and extradited to the United States last year. And Somali Ahmed Warsame the year before that. These cases were probably most unusual in that they drew any press attention at all. According to the Department of Justice, the United States has prosecuted hundreds of cases related to international terrorism since 9/11 — including 67 cases involving defendants captured abroad.
To the extent this approach can be carried out transparently and consistent with U.S. and international law – and it is certainly possible to do so – it is plainly superior to lethal targeting, indefinite (non-criminal) detention or military commission prosecution in terms of its tactical and strategic advantages for counterterrorism (retaining the ability to gather intelligence while incurring fewer costs in local public opinion) and in its ability to safeguard individual rights.

That said, the al-Libi case and others like it are not without concern. Set aside for the moment the very important questions of foreign nation consent to the conduct of such operations. (Where we undertake it without state consent, serious questions arise about compliance with international law. Since the 1990’s, part of the U.S. response to those questions has been to simply excuse the FBI from having to comply with customary international law in its snatch and grab operations overseas. Hardly an ideal solution.) Al-Libi is currently being detained, it appears, pursuant to the same statutory AUMF authority that has supported the Guantanamo detentions and many others post-2001. But most of those detainees – indeed, most “wartime” captures – are conducted without necessary contemplation of criminal prosecution. More to the point, they are conducted without the certainty of a pending criminal indictment. How long, as a matter of U.S. law, may he be held under these circumstances before being presented to a federal court? Criminal courts have been generous in tolerating substantial presentment delays – permitting lengthy interrogation without the presence of lawyers – in AUMF detention cases before the suspect is advised of his rights and questioning for purposes of gathering evidence that may be admissible in criminal trial is begun again. But the law here is not exactly crystal clear. As long as the AUMF remains on the books, the possibility of such detention remains. How long should uncounseled interrogation continue? Even assuming detainee treatment in such detention is ideal, what principles cabin its duration?

Then there’s the shelf-life of the AUMF itself. With apologies as ever for shameless self-promotion, I’ve just posted a piece on SSRN arguing that the AUMF must be construed according to IHL, that IHL under these (admittedly by-analogy) circumstances should be understood to permit detention only for “the duration of hostilities,” and that the “hostilities” authorized by that statute may soon be understood – as a matter of law application to facts – as at an end. Existence-of-war conditions are justiciable, I argue. They already matter – and are being litigated – with respect to the beginning of the conflict for purposes of charging defendants with war crimes in the military commissions. They will soon start to matter more when it comes to the important AUMF.

Libya’s Magic Security Situation and al-Senussi’s Right to Counsel

by Kevin Jon Heller

One of the most distressing aspects of the admissibility decision in al-Senussi is PTC I’s remarkable unwillingness to question Libya’s strategic invocation of its precarious “security situation.” As described by Libya, that situation really is magic — somehow managing to prevent the Libyan government from doing anything to protect al-Senussi’s rights without preventing the government from prosecuting al-Senussi.

Consider the issue I discussed in my previous post — Libya’s failure to provide al-Senussi with an attorney. Here are the PTC’s two relevant statements, from paras. 292 and 307:

In the Chamber’s view, the fact that Mr Al-Senussi’s right to benefit from legal assistance at the investigation stage is yet to be implemented does not justify a finding of unwillingness under article 17(2)(c) of the Statute, in the absence of any indication that this is inconsistent with Libya’s intent to bring Mr Al-Senussi to justice. Rather, from the evidence and the submissions before the Chamber, it appears that Mr Al-Senussi’s right to legal representation has been primarily prejudiced so far by the security situation in the country.

It appears, by Libya’s own admission, that the fact that Mr Al- Senussi is yet to obtain legal representation is primarily due to “security difficulties”.

The first thing to be said is that Libya blaming its failure to provide al-Senussi with counsel on its security situation is not an “admission” — it is Libya’s preferred framing of the issue. Libya is desperate to prevent the ICC from reaching the opposite conclusion: namely, that al-Senussi lacks counsel because the government has done everything in its power to prevent him from obtaining one. Were the PTC to (correctly) blame Libya for al-Senussi’s lack of counsel, Libya would have two problems: (1) the case for unwillingness would be greatly strengthened, because Libya’s intentional denial of al-Senussi’s right to counsel would threaten the viability of his prosecution once the accusation stage is complete; and (2) the case for inability would also be greatly strengthened, because Libya would not be able to plausibly maintain that once the security situation improves, there will be no impediment to providing al-Senussi with counsel.

To put it mildly, PTC I’s mantra-like invocation of Libya’s “security situation” is less than convincing. To begin with, the PTC never explains why the security situation in Libya prevents the government from providing al-Senussi with counsel. The PTC simply cites Libya’s reply and a Human Rights Watch press release, neither of which justifies its conclusion The one paragraph in Libya’s reply concerning al-Senussi’s lawyer (para. 146) claims only that “several local lawyers have indicated their willingness to represent Mr. Al-Senussi in the domestic proceedings.” The reply does not name those lawyers, nor does it provide any evidence in support of its claim that they exist. Moreover, the Human Rights Watch press release is revealingly entitled “Libya: Ensure Abdallah Sanussi access to a lawyer.” It does not attribute al-Senussi’s lack of counsel to the security situation in Libya; on the contrary, it specifically mentions the numerous times the Libyan court overseeing al-Senussi’s detention has ignored his request for an attorney, to which he is entitled even at the investigative stage of the proceedings.

Even more problematic, nothing in the record suggests that the security situation in Libya will somehow magically improve between now and the beginning of al-Senussi’s trial. As even casual Libya observers know, the security situation is getting worse by the day. Indeed, Judge van den Wyngaert, though joining in the admissibility decision, took the unusual step of appending a declaration to the decision expressing concern about the recent kidnapping of Libya’s Prime Minister and stating that she “would have preferred to seek submissions from the parties and participants as to whether Libya’s security situation remains sufficiently stable to carry out criminal proceedings against Mr Al-Senussi.” Even if it attributes al-Senussi’s lack of counsel to the “security situation,” therefore, PTC I has absolutely no reason to accept Libya’s assertions that it will be able to provide al-Senussi with counsel prior to trial.

And that, of course, is the problem with PTC I’s new “at the time of the admissibility decision” test for complementarity, which I criticized in my previous post. Al-Senussi’s lack of counsel may not threaten his prosecution right now — but it eventually will. And that is true regardless of whether al-Senussi’s lack of counsel reflects Libyan strategy or the security situation in Libya.

Events and Announcements: October 13, 2013

by Jessica Dorsey


  • The Cassese Initiative is pleased to inform you about its coming workshop on the topic “Enforced Disappearance: Challenges to Accountability under International Law”, which will be held at the European University Institute in Florence, on Friday 25 October 2013. Register here. From the organization: “Enforced disappearance remains one of the most heinous human rights violations. From the ‘political cleansing’ campaigns of oppressive regimes to the ‘war on terror’, hundreds of thousands of targeted opponents have disappeared without a trace, and their families left to live in uncertainty over their fate. Due to its complex nature as a multiple human rights violation and a very serious international crime, and the fact that it is, by definition, shrouded in secrecy, enforced disappearance poses particular problems with regard to accountability. Today, in spite of a framework which includes the 2007 United Nations Convention for the Protection of All Persons from Enforced Disappearance, several international courts and monitoring bodies with competence over the violation, as well as the International Criminal Court, these problems persist and new challenges emerge in the fight against impunity.” More information can be found on their websiteFacebook and/or Twitter pages.
  • The Nineteenth Annual Herbert Rubin and Justice Rose Luttan Rubin International Law Symposium, entitled:“The Function of Judges and Arbitrators in International Law” Thursday, October 24, 2013 from 9:00 a.m.-4:00 p.m. The Symposium will examine the function of judges and arbitrators in international law. As the importance of formal international adjudication increases, more and more focus is placed on the role that its adjudicators play, and the functions they are meant to fulfill. One of the highlights of this year’s Symposium is the participation of PluriCourts, whose directors Andreas Føllesdal and Geir Ulfstein will be speaking. If you would like to register now, please click here.

Call for Papers

  • The Centre for Global Governance Studies at Catholic University Leuven presents: The Rule of Law: A Strategic Priority of the European Union’s External Action (ROLA)–International Workshop on 27-28 February 2014 in Leuven (Belgium)Deadline for submission of abstracts: 30th October 2013. From their announcement: ‘The Rule of Law – A Strategic Priority of the European Union’s External Action’ (ROLA) is an interdisciplinary Jean Monnet project conducted by the Leuven Centre for Global Governance Studies (GGS) and co-funded by the Lifelong Learning Programme of the European Commission. The purpose of this project is to assess the importance of the rule of law as a strategic priority of the European Union (EU)’s external action as mandated by article 21 of the Treaty on European Union. ROLA aims to bring together scholars from various disciplines (inter alia law, economics, international relations and political science), officials from EU institutions and EU partner countries, and representatives from civil society. Generating theoretically and practically relevant findings for both researchers and practitioners, this project focuses on an increasingly important though still under-theorized and underexplored research topic: the EU’s strategic prioritization of the rule of law towards emerging powers.” Contactmatthieu [dot] burnay [at] ggs [dot] A full call for papers in PDF format can be found here. For more information on the project:


  • The annual Human Rights Essay Award Competition sponsored by the Academy on Human Rights and Humanitarian Law at American University Washington College of Law seeks to stimulate the production of scholarly work in international human rights law. The 2014 topic is Persons with Disabilities and International Human Rights Law. Participants have the flexibility to choose any subject related to the assigned topic. The best articles may be published in the American University International Law Review. The Academy will grant two Awards, one for the best article in English and one for the best article in Spanish. For detailed guidelines about the award please 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.

PTC I’s Inconsistent Approach to Complementarity and the Right to Counsel

by Kevin Jon Heller

Pre-Trial Chamber I has granted Libya’s challenge to the admissibility of the case against Abdullah al-Senussi. This is obviously a major win for the Libyan government, especially given that the very same PTC denied its admissibility challenge regarding Saif Gaddafi.

There is much to like in the PTC’s decision. It takes a very broad approach to the “same conduct” requirement with regard to the definition of a “case” — something I’ve long advocated. (Indeed, I’ve advocated jettisoning the rule entirely.) It reaffirms that states are not obligated to prosecute international crimes as international crimes; ordinary crimes are sufficient. And it once again rejects the idea that the failure of a domestic proceeding to live up to international standards of due process makes a case admissible, rightly emphasizing that due process is relevant only insofar as the failure of a domestic prosecution to live up to national standards of due process threatens the viability of that prosecution.

That said, there is one very problematic aspect of the PTC’s decision in al-Senussi: its treatment of al-Senussi’s right to counsel is completely inconsistent with its decision in Gaddafi. In Gaddafi, PTC I held that Libya’s failure to provide Gaddafi with an attorney meant that it was “unable” to prosecute him within the meaning of Art. 17(3) of the Rome Statute (emphasis mine)…

Weekend Roundup: October 5-11, 2013

by Jessica Dorsey

This week on Opinio Juris, we had two guest posts from Tomer Broude, the first giving an introduction to behavioral law and the second discussing a methodological framework to behavioral law. Carsten Stahn also delivered a guest post on cautioning against a new affirmative defense to Article 2(4) of the UN Charter, in response to argumentation put forth by Harold Koh’s Just Security contribution.

Kevin discussed Charles Taylor’s disproportionate sentencing in a post examining the Special Court for Sierra Leone’s treatment of customary international law. Duncan posted this week with his analysis on the existential function of interpretation in international law and Roger pointed out “the fact that” we lawyers ought to omit needless words.

Kristen highlighted the recent class action lawsuit filed in the Southern District of New York by the lawyers for the Haiti Cholera victims while Deborah offered insight into the raids in Somalia and Libya recently by the US and their implications on the theories of self defense and responded to Marty Lederman’s Just Security take on her analysis here. Deborah also pointed out an upcoming event on counterterrorism strategies taking place Monday, which she will moderate. Rounding things out, I provided the Weekly News Wrap and you can find An’s Events and Announcements post here.

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

Behavioral International Law: A Methodological Framework

by Tomer Broude

[Tomer Broude is Vice-Dean and Sylvan M. Cohen Chair in Law at the Faculty of Law and Department of International Relations at the Hebrew University of Jerusalem.]

In my previous post, I tried to briefly introduce the merits of “Behavioral International Law”. Experimental research has shown that in many cases human behavior diverges from theoretical assumptions about rationality. Prospect theory, loss aversion, endowment effects, anchoring, hindsight bias, availability bias, conformity effects, framing effects – the list of experimentally proven, systematic diversions from perfect rationality in human behavior is long. The confines of a blog post preclude detailed discussion of any of these biases and heuristics; the literature in cognitive psychology is vast. The important point, pursued by scholars over the last decade or so, is that this knowledge of actual, rather than hypothesized or assumed, human behavior, can have significant implications for legal regulation. Why should this not be the case with respect to public international law?

A number of objections may arise, and I will mention two of them briefly here. The first would be that cognitive psychology and behavioral economics relate primarily to the conduct of individuals as (obviously) unitary actors, while the main subjects of international law are collective entities, primarily states. This presents a type of external validity problem: can the knowledge we have on human behavior, carry over to other actors? Continue Reading…

Weekly News Wrap: Thursday, October 10, 2013

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Middle East





More SCSL Hypocrisy Concerning Customary International Law

by Kevin Jon Heller

In my previous post on the Taylor appeal, I noted two troubling aspects of the Appeals Chamber’s judgment concerning customary international law: (1) its erroneous belief that legal principles that narrow criminal responsibility have to have a customary foundation; and (2) its hypocritical affirmation that recklesness is the mens rea of aiding and abetting (which goes beyond the ICTY and ICTR) despite the principle having no basis in custom whatsoever.

In this brief post, I want to note that the SCSL’s hypocrisy toward custom extends to its analysis of Taylor’s disproportionate sentence. The judgment focuses on the principle that conviction as an accessory “generally warrants a lesser sentence than that to be imposed for more direct forms of participation.” That principle has been consistently applied by the ICTY and ICTR, leading to significant differences in sentences at both tribunals. (I mention the relevant studies in my article.) It was also honored, though clearly in the breach, by the Trial Chamber in Taylor. The Appeals Chamber, however, categorically rejects the principle — once again, as with specific direction, on the ground that it lacks an adequate foundation in customary international law:

667. The Appeals Chamber has considered the ICTY/ICTR jurisprudence cited by the Defence and adopted by the Trial Chamber, which is based on the holding of the ICTY Appeals Chamber in Vasiljević. This Appeals Chamber does not consider that holding persuasive. A number of the national laws relied on in the Vasiljević Appeal Judgment do not support the principle that aiding and abetting as a form of criminal participation warrants a lesser punishment, but only establish that an accused‘s minor participation in the commission of the crime may be a mitigating circumstance…. This Appeals Chamber notes that the Vasiljević Appeals Chamber did not declare its holding reflective of customary international law, nor did it pronounce it a general principle of law.

The Appeals Chamber is probably correct that the principle lacks an adequate customary foundation. Its analysis of whether it qualifies as a general principle of criminal law, however, is more questionable. The Appeals Chamber dismisses that possibility by citing common-law systems that do not formally distinguish between principals and accessories, making both potentially subject to the same punishment. (Most civil-law systems do formally distinguish between them in terms of sentence.) But the Appeals Chamber studiously avoids inquiring whether, in practice, common-law systems nevertheless generally sentence accessories more leniently than principals. My guess is that nearly all of them do.

My point here, though, is not to defend the principal/accessory distinction as a general principle of criminal law. Instead, it’s to note that, in terms of custom, the Appeals Chamber’s approach to sentencing is no less hypocritical than its approach to substantive criminal law. Contrast what it says about the principal/accessory distinction with what it says about extraterritoriality as an aggravating factor, which the defence (correctly) alleged in its appeal brief lacks any foundation whatsoever in customary international law (and has never been applied by any international tribunal):

The Appeals Chamber considers that it was unnecessary for the Trial Chamber to refer to public international law in order to take into consideration the extraterritorial nature and consequences of Taylor‘s acts and conduct. The Appeals Chamber accepts the Trial Chamber‘s finding that the extraterritorial nature and consequences of Taylor‘s acts and conduct are directly related to Taylor and the gravity of his culpable conduct, justifying holding him responsible.

Shorter Appeals Chamber: an aggravating factor that increases Taylor’s sentence does not have to have a customary foundation, as long as it’s “directly related” to his culpability, but a sentencing principle that decreases Taylor’s sentence does have to have a customary foundation, even if it is also “directly related” to his culpability.

Such is the Appeals Chamber’s understanding of customary international law. It’s only important when a principle might work in the defendant’s favor. As long as a principle harms the defendant, custom is irrelevant.

Welcome to nullum crimen sine lege through the SCSL looking glass.

Behavioral International Law: An Introduction

by Tomer Broude

[Tomer Broude is Vice-Dean and Sylvan M. Cohen Chair in Law at the Faculty of Law and Department of International Relations at the Hebrew University of Jerusalem.]

I’d like first to thank the Opinio Juris team, and particularly Prof. Chris Borgen, for inviting me to present my article manuscript, “Behavioral International Law”, in this online forum. Today I will devote my post to general observations on this project. In my second post I will discuss the range of available research methodologies in this area. A third post will discuss some concrete examples of behavioral research in international law.

Behavioral science has in recent years been applied successfully to many legal issues. A field that just a decade ago was entirely new now merits its own research handbooks (one forthcoming with OUP in 2014, edited by my Hebrew University colleagues Doron Teichman and Eyal Zamir). Behavioral research is now embedded in national and regulatory policy-making that clearly interacts with international affairs (see Cass Sunstein’s article on “” here; the UK’s Behavioural Insights Team; and this conference in December on EU law and behavioral science). No less importantly, the groundbreaking work of cognitive psychologists such as Daniel Kahneman and the late Amos Tversky has been greatly popularized in a series of popular science books (see here, here, and here), making it more accessible to lawyers and policy-makers (for better or for worse).

Simplified, the central concept underlying research in this field is the recognition that human cognitive capabilities are not perfect or infinite; our rationality is ‘bounded’. The human brain makes shortcuts in judgment and decision-making that diverge from expected utility theory. Limiting aspects of bounded rationality and the shortcuts taken to overcome them – generally known as biases and heuristics – inevitably cause human decisions that would be regarded as erroneous if compared with theoretically/perfectly rational outcomes. As I explain in the article, this should at least give pause to standard rational choice approaches to law in general and international law in particular, whose assumptions about the rationality of states and other actors are often distant from behavioral realities.

Having said this, it is important to understand that behavioral economics does not aspire to replace one ideal-type decision maker (a perfectly rational one) with another (rationally imperfect) one. Continue Reading…

Haiti Cholera Battle Against UN Moves to US Court

by Kristen Boon

After receiving a staunch “no” from the UN earlier this year, lawyers for Haiti Cholera victims filed a class action lawsuit in the Southern District of New York today.  The complaint is available here.   The complaint seeks certification of a class that is composed of cholera victims who are Haitian and US citizens. The basis of the class action is that the plaintiffs have a right to a remedy under Haitian tort law, and includes a request for relief on the basis of wrongful death, and infliction of emotional harm.  Moreover, in reference to international law, the plaintiffs assert:

Defendants UN and MINUSTAH have well-established legal obligations to provide redress to victims of harm caused by acts or omissions attributable to the Defendants, which includes the members of the proposed Class. The Convention on the Privileges and Immunities of the UN of 1946 (“CPIUN”) expressly requires Defendant UN to provide appropriate modes of settlement for third-party private law claims. The Status of Forces Agreement (“SOFA”) signed between Defendant UN and the Government of Haiti expressly requires the UN to establish a standing claims.

To date, the UN has denied legal responsibility on the basis of Article 29 of the Convention on Privileges and Immunities stating that the claim is not receivable.  Presumably, the justification is that this is a public rather than a private law claim, although the UN’s response did not spell this out, as I discussed in an earlier blog here.  What the UN has focussed on instead is a fund for improved sanitation and water infrastructure.

Pressure on the UN has mounted.  On Tuesday, the UN High Commission for Human Rights, Navi Pillay, urged the UN to compensate the victims, although she did not state where that money should come from. An important report produced this summer by students and professors at the Yale Law School Transnational Clinic has also called for compensation.   In addition, the UN Independent Panel of Experts convened in 2011 to investigate the source of cholera in Haiti published a new academic article this summer that concluded that MINUSTAH was the most likely source of cholera in Haiti.  The precise language they use is:

“The preponderance of the evidence and the weight of the circumstantial evidence does lead to the conclusion that personnel associated with the Mirebalais MINUSTAH facility were the most likely source of introduction of cholera into Haiti.”

Even Haiti, conspicuously silent about the potential responsibility of the UN for this outbreak, changed its tune at the recent General Assembly meetings and where its Prime Minister argued that the UN has moral responsibility for the outbreak.

The complaint deals only briefly with the question of privileges and immunities, which is likely to be the UN’s first defense.  As I noted in this blog, this will be an obstacle the plaintiffs are unlikely to surmount.  Nonetheless, I suspect the lawyers are seeking a different kind of victory here.  They are exposing the limits of the UN’s internal justice system, forcing the public to focus on the disastrous health consequences of the cholera epidemic in Haiti, and highlighting the accountability gap that has emerged in light of the refusal to establish a claims commission.

Omit Needless Words

by Roger Alford

Watching my youngest son draft and redraft his high school essays under the watchful eye of his English teacher, who is smitten by the inerrant wisdom of Strunk and White’s Elements of Style, I was curious how the best legal scholarship in the country fares by classic rules of writing.

To simplify my task, I have chosen one rule that is easily quantifiable. In discussing elementary principles of composition, Strunk and White admonish writers to omit needless words:

Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts…. Many expressions in common use violate this principle…. In especial the expression “the fact that” should be revised out of every sentence in which it occurs.

So how do the top law journals perform under the microscope of William Strunk and E.B. White? In the countless hours of drafting and editing, do the top scholars and top student editors adhere to this elementary principle of composition?

The results are not encouraging. (Alas, I too plead guilty in my own scholarship). A ten-year search of the number of occurrences “the fact that” appeared in the flagship journals of the top law schools reveals the following:

Harvard Law Review: 869
Michigan Law Review: 496
Yale Law Journal: 459
Columbia Law Review: 436
Chicago Law Review: 431
NYU Law Review: 428
Penn Law Review: 408
California Law Review: 406
Stanford Law Review: 388
Virginia Law Review: 364

So on average the top journals misuse this phrase almost fifty times a year, and the Harvard Law Review misuses it over eighty times a year.

In our obsession with rankings, we can take solace in “the fact that” the Harvard Law Review is the best among the best at using this needless expression.

Guest Post: On ‘Humanitarian Intervention’, ‘Lawmaking’ Moments and What the ‘Law Ought to Be’–Counseling Caution Against a New ‘Affirmative Defense to Art. 2 (4)’ After Syria

by Carsten Stahn

[Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University and Programme Director of the Grotius Centre for International Legal Studies. He is Co-Editor-in-Chief of the Leiden Journal of International Law, Executive Editor of the Criminal Law Forum and project leader of the Jus Post Bellum Project.]

Harold Koh’s thought-provoking post on Just Security on ‘Syria and the Law of Humanitarian Intervention – Part II’ illustrates the struggles of international law to cope with injustices and violations of legal norms, including the ban of the prohibition of chemical weapons.  Koh argues in favor of a new ‘affirmative defense to Article 2 (4)’ of the United Nations Charter which would allow the ‘lawful threat of limited military intervention’ to counter ‘a deliberate large-scale chemical weapons attack’. He regards Syria as a ‘lawmaking moment’ that should be used to clarify ‘the contours of an emerging exception to a rigid rule’. This argument is based on a number of claims and assumptions that merit reconsideration.

One may easily concur that the law on the use of force contains ‘grey zones’ and that Syria is a ‘hard case’. It is also helpful to set out arguments in ‘legal language that international lawyers’ can debate. But like others (e.g. Kevin Heller and David Kaye), I would argue that is highly questionable whether Syria should be a ‘moment to reframe international law’ in the direction suggested. It may rather be illustrative of the claim of a few to reshape the law in a way that might be seen as a window for abuse by others.

It is deplorable that the Council has been blocked over two years, due to an irresponsible use of prerogatives that are out of time. This has created a ‘vacuum of protection’.  But the fundamental question is whether the solution suggested, i.e. greater flexibility towards military strikes under an ‘affirmative defense to Art. 2 (4)’ is the right remedy to deal with this dilemma. This is a very rudimentary logic. It appears to suggest that unilateral military action is the proper remedy to overcome impasses and inaction by the Council. His argument contains a number of problems that require reconsideration: (i) the framing of the choice, (ii) the use of the label of ‘humanitarian intervention’, (iii) the nature of the proposed ‘defense’ for the use of armed force, and (iv) the approach towards ‘lawmaking’.

1. Framing the underlying choice

The first problem with Koh’s argument that is that it is phrased in a binary ‘either’/’or’ logic. Koh suggests that there is a choice between ‘turning a blind eye (and a deaf ear) to violations’ and the use of military force.  Koh presents intervention as a lesser of two evils. This is a constructed choice. Hardly anyone would seriously suggest that doing nothing is an option in the face of a violation, such as the 21 August 2013 attack on civilians. The question is not so much whether to respond, but rather how to react. The solution suggested by Koh, i.e. remedying a violation through use of force, blurs fundamental categories of law.

The primary norm breached in the Syrian context is a fundamental norm of international law that is prohibited under different bodies of law, including international humanitarian law and international criminal law.  Koh’s logic suggests that use of the force should be an ultima ratio option to respond to such types of violations. This assumption merits questioning. In his case for deviation from the ‘illegality’ rule, Koh mixes different rationales that require different response schemes.  His argument builds a case for military action based on a merger of different objectives: i.e. ‘remedying a humanitarian situation’, preventing ‘the likelihood of future atrocities’, achieving accountability for ‘crimes’, sanctioning the use of chemical weapons, preserving of peace and security. These objectives are all valid and important. But is questionable whether they can be achieved best through a broadening of the options for military force.

International law offers alternative paths to the use of force to achieve rationales, such as accountability, deterrence or sanctioning of jus in bello violations, i.e. preventive diplomacy, lawful countermeasures, international criminal justice, sanctions etc. Broadening the categories of the use of forces has trade-offs. It weakens these options and their underlying regimes (e.g. non-coercive and non-violent response measures under Chapters VI and VIII of the Charter, mechanisms under R2P etc.). It carries the risk of remedying wrongs through means that are ill-equipped to meet the very goals of intervention. In light of these risks, many nations (e.g., G77) have remained reluctant to accept the doctrine of ‘humanitarian ‘intervention’.

Introducing a new ‘affirmative defense’ for military strikes based on Syria crisis would be an open floodgate for other claims. Acceptance of this argument might serve as an incentive for further action outside collective security in other cases involving a threat to international peace and security. For instance, why would other nations be prevented from claiming a similar justification to use force in response to specific incidents or ‘acts of international terrorism’ that have been branded as a threat to international peace and security as such under Resolution 1373 (2001)? Such an approach is vulnerable to abuse and might have detrimental side-effects. It might make the Security Council even more reluctant in the future to engage with threats to international peace and security. A better way forward might be to work towards a more responsible use of veto powers in the future (i.e. understandings on the non-use of the veto in specific situations), rather than declaring the Council irrelevant, as done at the height of the Syria crisis.

2. The label of ‘humanitarian intervention’

The second problem with Koh’s argument is that it uses the label of ‘humanitarian intervention’ to justify the claim for the legality of the threat or use of force. Arguments supporting ‘humanitarian intervention’ reach indeed far back in history. But the weakness of Koh’s reasoning is that assumes that Syria falls squarely under that doctrine and that it may be treated in one historical line with incidents such as Kosovo, Srebrenica etc. This is questionable. This analogy hinges. There are fundamental differences.

Continue Reading…

Speaking of Evolving Approaches to Counterterrorism

by Deborah Pearlstein

The recent raids in Libya and Somalia have, among other things, raises renewed questions about how the U.S. can/should carry out its counterterrorism operations without, as President Obama puts it, “keeping America on a perpetual wartime footing.” Delighted to say we’ll be taking up just that topic in an evening panel I’ll be moderating in New York next Monday. Public most welcome with an RSVP to floersheimercenter [at] gmail [dot] com.

Law at the End of War? Fighting Terrorism after Afghanistan
Monday, October 14, 2013, 6 p.m.
Cardozo Law School
55 Fifth Avenue, New York


Lt. Gen. David Barno (Ret.)
Senior Adviser and Senior Fellow, Center for a New American Security and Former Commander of U.S. Forces in Afghanistan

John Bellinger
Partner, Arnold & Porter LLP and Former State Department Legal Adviser

Mary DeRosa
Distinguished Visitor from Practice, Georgetown Law Center and Former Legal Adviser to the National Security Council under President Obama

Ali Soufan
CEO, The Soufan Group and
Former FBI Supervisory Special Agent

Interpretation isn’t just Meaning! The Existential Function of Interpretation in International Law

by Duncan Hollis

Looking back at all the debates over whether the United States could have legal authority to use force in Syria, I was struck by the presence of two very different types of arguments about the Responsibility to Protect (R2P).  For some, the R2P questions were interpretative in nature — what did R2P mean (i.e., does it require Security Council authorization) and how does its meaning apply in the Syrian context?  Obviously, different interpretative methods and techniques could generate different answers to what R2P meant, and, with them, different outcomes for the Syrian intervention question. Many others, however, never made it to this interpretative stage.  For them, the R2P questions were existential — did it even exist within the corpus of international law in the first place?

Looking at R2P in Syria provides a paradigmatic example of how international legal interpretation can do more than simply explain what a legal concept “means”.  It shows that the interpretative project is not just an expository process but an existential one. The very act of interpreting validates the legal existence of that which is being interpreted. Interpretations of R2P with respect to the legality of a Syrian intervention necessarily accepted the existence of R2P within international law.  At the same time, deciding whether or not R2P exists itself constitutes a particular form of interpretative process, or what I call an existential interpretation.  I’ve written a paper about these existential aspects of international legal interpretation that’s now available on SSRN (I also presented it at this fabulous conference on interpretation in Cambridge).  Here’s the abstract:

For most international lawyers, interpretation involves acts giving meaning to a particular legal rule. Interpretative studies center largely on questions of method and technique – by what process should (or must) meaning be given to an international legal rule and how does a given meaning accord with the interpretative method employed. In recent years, increasing methodological awareness of interpretative theory has broadened – or, in the case of critical scholarship, challenged – the capacity of interpretation to give meaning to international law.

Notwithstanding the value in focusing on interpretative methods and techniques, the concept of interpretation they produce remains incomplete. International law’s interpretative processes are like an iceberg – the meaning arrived at by an interpreter is not simply a function of the method and technique employed (the visible tip) but rests on an array of earlier choices about what “exists” to be interpreted in the first place (the iceberg’s hidden, critical mass). A familiar example involves the question of what evidence counts as “State practice” for purposes of identifying customary international law. Interpreters who only count what States “do” may generate different content for a claimed rule than those who also consider what States “say” about the rule, even holding constant the method and technique employed. Similar existential questions arise throughout the international legal order. Before a treaty can be interpreted according to the 1969 Vienna Convention, for example, the interpreter must conclude the treaty actually exists. Indeed, interpretative choices lie at the core of international law’s sources doctrine, since what qualifies as international law (or not) can privilege or foreclose specific interpretative methods and outcomes.

This paper seeks to uncover the “existential function” of interpretation in international law. It explains how all interpretations have existential effects as they create, confirm, or deny the existence of the subject of interpretation. At the same time, I identify a particular structure of interpretative argument – what I call “existential interpretation” – by which interpreters ascertain the existence of their subjects. I review examples of this phenomenon in questions about the existence of interpretative authority, evidence, international law, and its sources.

Existential interpretations and the functions they serve have significant implications for international legal (a) discourse, (b) doctrine, and (c) theories of international law. Existential interpretations delineate the boundaries for interpretative discourse, narrowing it in cases of consensus on the existence of the interpreted subject, and broadening it in cases of dispute. Where interpretative resolutions of existential questions are possible, they may impact the content of international law doctrine, either directly or indirectly. And, where resolution is not possible, existential interpretations may operate as proxies for theoretical disagreement about the nature or purpose of international law (e.g., positivists may insist interpreters exclude from their toolbox the same soft law sources that naturalists insist require effectiveness as a matter of right). The paper concludes with a call for further study of existential interpretation given its importance to practice as well as its potential to provide a new lens for mapping the unity and fragmentation of the international legal order itself.

I’d welcome feedback if any of you find the paper is worth a read.

Responding to Marty Lederman on Somalia

by Deborah Pearlstein

Marty has a response up over at Just Security to my earlier post on the domestic and international law questions arising after the U.S. actions in Libya and Somalia late last week. Continuing the conversation, a few replies here.

(1) Is there a statutory source of domestic authority for the operation in Somalia? Marty’s theory is that the AUMF may well suffice to authorize the attack if the subject was (in addition to being part of Shabaab) a member of Al Qaeda. I suppose it’s possible that’s what was going on here, and there’s surely more we need to know. On the other hand, that doesn’t seem to be part of the emergent leaked story. According to the Times, sourced to a senior American security official, a Navy SEAL team “exchanged gunfire with militants at the home of a senior leader of the Shabab, a Somali militant group. The raid was planned more than a week ago, officials said, after a massacre by the Shabab at a shopping mall in Nairobi, Kenya.” I haven’t heard any reports suggesting the recent mall attack was the work of Al Qaeda (or even Al Qaeda-friendly Shabaab associates), but was rather a direct retaliation against Kenya for its role in intervening in the ongoing and infinitely messy Somalian civil war. Beyond the AUMF, there’s the possibility I suppose that the President was acting pursuant to existing power under, say, 50 U.S.C. 413b to undertake covert action operations. But I’m not sure even that broad definition fits what’s known of the facts here. By statute, “covert actions” are “activities” by the U.S. government “to influence political, economic, or military conditions abroad, where it is intended that the role of the U.S. Government will not be apparent or acknowledged publicly.” Among other things, given the rapidity of the “senior official” leak here, it doesn’t exactly look like the USG was especially worried about keeping its role quiet. That brings us to…

(2) Is there a constitutional source of domestic authority for the operation in Somalia? I don’t think one needs nearly as broad a theory of Article II power as Marty or Bobby Chesney seem to think would be required to justify a limited, proportional strike against the apparent perpetrators of the armed attack that injured American nationals abroad here. You need only as much authority as President Clinton claimed in the 1993 strike at Iraqi intelligence headquarters in Baghdad following the attempted assassination of former President Bush; the same degree of authority Clinton again asserted in the strikes against Afghanistan and Sudan following the embassy bombing attacks in 1998. In other words, you need a theory of presidential power that says the President has some inherent authority to respond to attacks against the U.S. or its nationals in self defense. Why more?

(3) As for the international law issues, we’ll have to wait and hope it is someday revealed whether Libya in fact consented to the U.S. capture operation in its territory. Current reports perfectly conflict on that score. If there was no consent, as Marty recognizes, the U.S. action would apparently violate UN Charter art. 2(4). But that’s not all it would violate. International human rights law – embodied in treaty and custom – prohibits, for example, kidnapping, or arrest without legal authorization. To the extent the U.S. is bound by those rules (and there’s good reason to think it is), I don’t see how the analysis of U.S. conduct under these laws are affected one way or another by what Marty suggestions – namely, Libya’s consent.

The Raids in Somalia and Libya – Theories of Self Defense?

by Deborah Pearlstein

As all major news outlets have now reported, the U.S. carried out two armed raids overseas late last week: one in Tripoli that resulted in the successful capture of suspected core Al Qaeda leader Abu Anas al-Liby, and another in Somalia apparently aimed at a leader of militant Somali group Al Shabaab. Both raise complex questions of U.S. and international law. Here’s a quick first take. Bottom line: Both are probably justifiable under domestic law, but pending some facts, the Al Liby seizure may be deeply problematic under international law.

Al-Liby has been under indictment in the U.S. since 2000 for his suspected role in helping to plan the U.S. embassy bombings in Kenya and Tanzania back in 1998. The indictment, available here, alleges his involvement in the conspiracy (and his participation in Al Qaeda) dates as far back as 1993. The AUMF authorizes the use of force against any organization the President determines responsible for the attacks of 9/11. Core al Qaeda is that organization; al Liby seems by all accounts to have been a central part of it. Assuming the United States moves with reasonable speed to bring al Liby here to stand trial on his criminal indictment, the Supreme Court has been (remarkably but consistently) clear that trial may proceed even if the defendant was effectively kidnapped to bring him here.

On the international law side, it’s trickier. The theory that there is an ongoing non-international armed conflict between the United States and Al Qaeda has never found acceptance outside the United States. Still, the United States has a powerful argument that the attack on its embassies was an “armed attack” within the meaning of UN Charter, art. 51, triggering a U.S. right to resort to military force in self-defense. In this respect, the decision to capture al Liby (and the operation directed in an apparently quite targeted way against him) looks like a quite proportional response. This nonetheless leaves two potentially significant international law problems: (1) If the United States actually lacked Libyan consent to the operation (as Libya seems, at least publicly, to maintain), the United States violated Libyan territorial integrity in carrying out the operation, a breach of UN Charter, art. 2(4). (2) Most scholars recognize an international law requirement that responses in self defense be timely. Whether one sees this as a necessary reading of art. 51 itself (recognizing a right of self defense only until the UN Security Council has had time to act), or a function of customary international law or both, the idea is that while states are certainly permitted some reasonable amount of time to determine an appropriate response and carry it out, a one-time attack doesn’t give a state a right to respond with armed force against the attacker for the rest of geopolitical time. Perhaps under the circumstances here the extraordinary delay is reasonable – it took a long time to find al Liby, and once we did perhaps we first pursued more peaceful efforts to extradite him to the United States. Perhaps. Another set of facts it would be helpful to know. In the meantime, the general question remains: how long could the U.S. plausibly use attacks from 1998, or even 2001, to justify new “self-defense”-related uses of force?

The attack in Somalia is a tougher case domestically. Al Shabaab, born well after 9/11 as a domestic Somali insurgency of sorts, and only recently (and to an indeterminate degree) allied with whatever remains of what is now called Al Qaeda, is not nearly as obviously covered by the AUMF. Does the President have inherent authority under Article II of the Constitution to use armed force in such circumstances? The vast majority of constitutional law scholars recognize the President has at least some right to use force without congressional authorization if he is acting in national self-defense. Here, the New York Times reports the Somalia raid was planned after the attack by al Shabaab at a shopping mall in Nairobi, Kenya, that killed more than 60 people two weeks ago. A handful of American nationals were injured in that attack. Of relevance here is what appears to be the emergent custom in international law to permit limited, proportional uses of force to protect a nation’s citizens under attack abroad. If one embraces the view that the President’s powers under Article II of the Constitution should be at least co-extensive with that force authorized under international law, then the President here might be on reasonable ground. The mere permissibility of a use of force under international law has never been thought to be a substitute for affirmative authority under domestic law. But imagine if the al Shabaab attack in Kenya were still underway; assuming the permission of the Kenyan government, there would seem little doubt the President would have inherent Art. II power to use force in the interest of protecting the U.S. nationals threatened in the attack. Does the brief passage of time here make a difference from this perspective, assuming the U.S. attack was the limited, one-off response it appears to be? Not clear that it does.

For these reasons, the attack on Al Shabaab may be quite a bit easier to justify under international law than is the seizure of al Liby. The issue of Somali consent remains – and it is here likewise unclear what Somalia permitted or not. But given the relative silence so far from the Somalia government, such as it is, it may be they were willing to have the U.S. there.

Events and Announcements: October 6, 2013

by An Hertogen


  • The Centre for Asian Legal Studies at the Faculty of Law, National University of Singapore, will be hosting the conference — Trials for International Crimes in Asia — on October 17-18, 2013. This will examine the legal issues arising from the tribunals convened in Asia to deal with crimes of international import – namely, aggression, war crimes, genocide, and crimes against humanity. It will consider both tribunals that have been established on the initiative of Asian governments and tribunals mounted in Asia at the behest of non-Asian governments or international organisations. In keeping with the legal theme, it will lay particular stress on the different modes of liability developed within these courts’ respective jurisdictions – among them, joint criminal enterprise, command responsibility, complicity, and defences against them. For the programme and registration details, please visit the conference webpage.

Calls for Papers

  • The Indonesian Journal of International and Comparative Law is looking for manuscripts for their inaugural volume which will be published in 2014. More information is here.
  • A group of students at Brandeis University, with support from the International Center for Ethics, Justice and Public Life are launching a new journal to explore questions of international peace and justice from an interdisciplinary perspective. For our inaugural issue, they are asking for abstracts that address the question: What is global justice, how does it work, and why is it important? They are looking for abstracts from fields as varied as psychology, anthropology, sociology, political science, economics, and history, as well as other disciplines. They are primarily seeking abstracts (300-500 words) from undergraduates and early-career graduate  students, but will accept a submission from anyone. Please email your submissions or any questions to Anastasia Austin and David Benger by Friday, November 8th.


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 28 – October 4, 2013

by An Hertogen

This week on Opinio Juris, we organized a book symposium on Investment Law in International Law: Integrationist Perspectives, edited by Dr Freya Baetens. If you enjoyed the symposium, don’t miss CUP’s offer of a 20% discount for our readers. More details are here. Freya introduced the goals of the book, followed by comments by Laurence Boisson de Chazournes.

On Tuesday, Nicolas Hachez and Jan Wouters assessed the need for an alternative to the arbitral model to preserve the public interest. Their reply to Tullio Treves’ comments is here. Vid Prislan addressed how non-investment obligations could be taken into account in investment arbitration, with comments by Kathleen Claussen.

Gleider Hernandez explored the interaction between investment law and the law of international armed conflict, which Bill Burke-White welcomed as a great opening for further research in this area. Philipp Ambach also dealt with the interaction between these two fields of international law in his post on the international criminal responsibility of transnational corporate actors doing business in zones of armed conflict, on which Judge Howard Morrison commented.

Anastasios Gourgourinis discussed the relationship between investment law and WTO law in the minimum standard of treatment of aliens, to which Anne van Aaken responded, followed by Anastasios’ reply. Mary Footer also reflected on the relationship between investment law and trade law. In response, Gabrielle Marceau discussed what dispute settlement in trade and investment systems can learn from each other. Mary’s reply is here.

On the last day, Elisabeth Tuerk and Wolfgang Alschner discussed how international investment treaties could contribute to sustainable development, with comments by Andrea Bjorklund, and Moshe Hirsch looked at the interaction between investment agreements and human rights treaties from a sociological perspective. Andreas Ziegler’s comments rounded up the symposium.

In our regular posts, Julian wondered when the Dutch government would file an ITLOS action after Russia charged Greenpeace activists with piracyKevin asked whether the ICC had learned anything from Melinda Taylor’s detention in Libya and whether The Guardian‘s legal affairs correspondent had read Perisic. He also continued last week’s inter-blog discussion with Ryan Goodman. The inter-blog discussion with JustSecurity continued with Kevin’s four thoughts on Harold Koh’s defense of unilateral humanitarian intervention.

Ken followed up on a post by Roger last week on jurisprudence post-Kiobel, by discussing his recent essay on the resurgence of the traditional bases of jurisdiction in the Alien Tort Statute. A guest post by John Dehn also revisited an earlier post, discussing an article by Sarah Cleveland and Bill Dodge on the Offenses Clause.

Finally, Jessica provided her weekly news wrap and listed events and announcements, while Julian posted a special announcement on the 2013 International Law Weekend.

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

Book Symposium Investment Law: “Investment Lawyers are from Mars, Human Rights Lawyers are from Venus” – Comments on Hirsch

by Andreas Ziegler

[Andreas Ziegler is Professor at the University of Lausanne and Counsel at Blum & Grob Attorneys-at-law in Zurich.]

The reference to John Gray’s bestselling “Men Are from Mars, Women Are from Venus” which states that most of common relationship problems between men and women are a result of fundamental psychological differences between the genders certainly oversimplifies Moshe Hirsch’s argument in his Chapter. And yet a recurring idea in his contribution is that human rights lawyers refer differently to human rights treaties than investment lawyers because of their socialization. What he describes as the sociological perspective can be summed as the explanation of these different attitudes by the different career paths of those involved in investment cases and those involved in human rights cases. He holds “[w]hile most human rights lawyers work in legal divisions of NGOs of academia, foreign investment lawyers (and arbitrators) are predominantly senior lawyers/practitioners, legal scholars of former judges affiliated with major international firms.” (p. 90 in fine).

This is not the only argument in his contribution but I would like to focus on it as I find it particularly intriguing and worthwhile to be developed in more detail. There is certainly some truth in this statement. When it comes to the application of investment treaties we are traditionally confronted with lawyers who take a certain interest in the global economy and especially the role of investors (normally multinational enterprises). These were for a long time mostly civil servants negotiating such treaties and (national) business associations interested in the conclusion of such treaties with specific partner countries. More recently when these treaties (or chapters thereof – most prominently Chapter 11 NAFTA) were discovered for their practical use by practicing lawyers we got used to their arguments being heard by investment tribunals.

When it comes, however, to the arbitrators one must say that originally and still to a large extent today we see small group of specialists in international commercial arbitration being appointed to the respective arbitration tribunals. But there is an increasing number of arbitrators being appointed who are not specialized in international commercial law but come from public international law – not only international economic law. Some may remember the very early appointment of René-Jean Dupuy as sole arbitrator in Texaco Overseas Petroleum Company and California Asiatic Oil Company v. The Government of the Libyan Arab Republic (1977). It is certainly still true that it is more often the State appointing a specialist in public international law than the investor involved in a case. This is not surprising as the investor is focusing on his individual commercial interests and the State often invokes some public policy concern or constraint for his action. Also commercial law firms actively search for appointment by multinational firms and have traditional links to commercial lawyers they have worked with in the past. Yet, one can no longer claim that there would not be an increasing number of arbitrators appointed who do not have a commercial arbitration background. Among the academics being appointed there is an increasing number of academics who have a broader view of the applicable law and are open to consider the relevance of human rights treaties or other norms of public international law that should be taken into account when settling a dispute. This is also true for the other participants in the proceedings where Parties have normally the possibility to involve experts from other fields and NGOs are increasingly making contributions – be it officially in amicus curiae briefs or using the public domain. The same is obviously true for academia where non-investment specialists have only recently discovered the relevance of investor-State arbitral awards but now contribute considerably to the debate on how investment treaties should be interpreted- and more importantly negotiated in the future. (see my forthcoming volume “Towards Better BITs”)

A particularly interesting situation results from the case law of tribunals when their character as a human rights or an investment tribunal is not so clear. Continue Reading…

Book Symposium Investment Law: Investment Tribunals and Human Rights Treaties – A Sociological Perspective

by Moshe Hirsch

[Moshe Hirsch is Professor of International Law at the Hebrew University of Jerusalem Faculty of Law.]

Sociology of international law involves the study of how social factors influence the development and enforcement of international law. As elaborated below, sociological analysis casts a new light on a significant dimension of the relationships between different branches of international law, and enriches our understanding of social factors involved in in legal decision-makers’ inclination to incorporate or reject legal rules developed in other branches of international law. This chapter aims to analyze the particular set of interactions between two branches of international law – human rights and investment treaties – from a socio-cultural perspective.

Analysis of investment tribunals’ decisions relating to human rights instruments reveals that while these tribunals often incorporate rules of general international law (particularly on state responsibility and treaty law), they adopt a quite consistent approach opposing the incorporation of international human rights law in investment disputes.  Investment tribunals have generally declined to thoroughly examine the specific provisions of international human rights instruments invoked by the parties, notwithstanding the various arguments raised during different stages of litigation by the various parties. In all cases dealing with the interaction between investment and human rights instruments, not one investment tribunal has absolved a party from its investment obligations or reduced the amount of compensation as a result of the consideration of human rights instruments.

Sociologists of law have long emphasized that law is “always rooted in communities”; and laws are considered by these scholars as expressive types of these communities.

The basic argument of this chapter is that legal interactions between branches of international law may also be analyzed as social interactions between the relevant communities. These legal interactions are affected by the particular features of relevant social settings, as well as by the mutual relationships between the relevant social groups. More specifically, the socio-cultural distance between the particular international legal settings affects the inclination of relevant decision-makers to incorporate or reject legal rules developed in other branches of international law. Generally, greater socio-cultural ‘distance’ between the involved social settings and groups decreases the prospects for mutual incorporation of legal rules developed in the other legal sphere.

The social settings in which international investment and human rights laws emerge and are interpreted, are very different. Continue Reading…

Book Symposium Investment Law: Comments on Alschner and Tuerk

by Andrea K. Bjorklund

[Andrea K. Bjorklund is the L. Yves Fortier Chair in International Arbitration and International Commercial Law at McGill University Faculty of Law, Canada]

Mr. Alschner and Ms. Tuerk’s contribution very usefully highlights three areas where international investment law and sustainable development principles may intersect: climate change, industrial policy, and corporate social responsibility.  This precision is particularly valuable given the less-than-concrete nature of the idea of “sustainable development”. 

Two common threads running through each section are the essential participation of the host state in fostering sustainable development and the tension between the pursuit of short-term goals (such as rapid economic development and the influx of capital and immediate returns in investment) and long-term goals (such as fostering sustainable economic development).  Investment agreements, either individually or in the guise of a multilateral instrument establishing shared principles, can contribute only a limited amount to the furtherance of sustainable development goals unless their reach expands drastically.  That point is well illustrated in the area of climate change.  Investment agreements themselves do not require that states legislate in environmentally friendly ways, or that states prioritize fighting climate change over promoting robust short-term industrial growth.  Thus, amendments to existing investment agreements, or carefully drafted new agreements, can satisfy one side of the equation – they can eliminate whatever constraints investment agreements might impose on states’ desire regulate to combat climate change or to promote certain industrial policy goals.  Yet states must still want to enact those laws.

States also must be the primary architects of their industrial policy, and certainly should strive to ensure that their investment agreements do not interfere with their pursuit of those goals. Yet, as Mr. Alschner and Ms. Tuerk note, many policies designed to foster municipal economic development can also lead to unjustified investment protectionism.  For example, the “infant industries” argument often offered by states (and by industries) seeking to facilitate the establishment of a national entrant into a competitive industry.  In the short term such policies are possibly beneficial.  In the long run, however, a state might be left with elderly infants who do not want to leave the shelter provided by policies, often somewhat costly, that insulate them from competition, particularly in the home market.

Insofar as fostering responsible investor behavior is concerned, again the host state’s laws are, at least in principle, the best vehicles for regulating and monitoring the activities of investors.  Host states can impose conditions on investors prior to granting concessions, ensure compliance with local laws prior to granting licenses, and generally police investors’ behavior.  Some states might lack the capacity effectively to ensure that investors follow those laws, but their strong commitment to requiring responsible corporate behavior is the ideal situation and without host states’ engagement and cooperation fostering that behavior will be very difficult.

The authors recognize potential impediments to active host-state regulation, and suggest a few alternatives.  One is to amend international investment agreements to include references to corporate social responsibility and to encourage their interpretation in a manner that gives effect to those principles; another is encourage states themselves to engage in their best endeavors to promote companies’ adoption of corporate social responsibility principles.  A third is to ensure that incoming investors, prior to their admission, be subject to a screening procedure identifying their corporate social responsibility practices.  The fourth, and most ambitious, would be to include corporate-social-responsibility obligations in international investment agreements themselves – in other words, ensuring that investors have rights as well as responsibilities.

Given my suggestion that host states are in the best position to impose and enforce obligations on corporations doing business in them, I query whether the recommended alternatives are adequate to compensate for deficiencies in regulation by host states.  Continue Reading…

Book Symposium Investment Law: The role of International Investment Agreements in Fostering Sustainable Development

by Wolfgang Alschner and Elisabeth Tuerk

[Wolfgang Alschner is a PhD Candidate and Teaching Assistant at the Graduate Institute in Geneva, and Elisabeth Tuerk is Officer in Charge (OiC) of the Section on International Investment Agreements (IIAs) in UNCTAD’s Division on Investment and Enterprise.] 

One of the policy tools typically aimed at attracting foreign investment has been the conclusion of international investment agreements (IIAs). Foreign investment is an important source of finance for sustainable development, especially in low-income countries. However, the benefits from foreign investment are not automatic and the link between IIAs and sustainable development is a complex one: whereas IIA may contribute to more attracting more (sustainable) investment, they also constrain regulatory action by host governments that seek to maximize the positive and minimize the negative effects of foreign investment on sustainable development.

This paper gives an overview of recent UNCTAD research on the nexus between IIAs and sustainable development in three areas of public policy-making. These include 1) combating climate change; 2) integrating investment and industrial policy; and 3) promoting responsible corporate behaviour. The paper concludes on the need for more inter-State cooperation to address the various challenges facing the IIA regime today and to enhance its sustainability dimension.

1) IIAs and climate change

When it comes to combating climate change, IIAs are a double edged sword. Continue Reading…

Book Symposium Investment Law: A Reply to Gabrielle Marceau

by Mary Footer

[Dr Mary E. Footer is Professor of International Economic Law at the University of Notthingham, School of Law.]

First of all my thanks to Freya Baetens and Opinio Juris for hosting the Book Symposium on Investment Law and for giving me the opportunity to post details of my chapter. I would also like to thank Gabrielle Marceau for her generous praise of my piece but more importantly for her instructive comments.

In response I shall pick up on one of her comments concerning the issue of “cross-fertilisation” of WTO jurisprudence and investor-state arbitration to which I refer in my chapter. I was unaware of the recent review of a large number of decisions of international courts and tribunals, including investor-state arbitration decisions, that make reference to WTO case law in their findings. While this is an impressive undertaking, I am wondering to what extent those decisions have been analysed and what conclusions, if any, can be drawn from this exercise? For example, is there a trend in investment arbitration to reach out to WTO case law in dealing with principles common to both trade and investment such as the principle of non-discrimination? As I have noted in my chapter, with reference to Occidental v Ecuador not all investment arbitration tribunals have been sympathetic to the importation of WTO case law when interpreting the national treatment standard. Or is the trend more in the procedural sphere, for example with respect to things like the burden of proof – here again there may be limits on the cross-fertilisation of WTO jurisprudence, as was demonstrated in Thunderbird v Mexico.

And what, if anything, can WTO panels and the Appellate Body understand from investor-state arbitration? Are there lessons to be learnt from the way in which investment arbitration tribunals interpret and apply ‘any relevant rules of international law’ in the sense of Article 31(3)(c) of the Vienna Convention on the Law of Treaties? What about the customary international law rule on attribution in the field of state responsibility – in particular where it concerns organs that exercise elements of governmental authority – as suggested by Santiago Villalpando? Could the interpretation of investment treaty-based defences in the form of exceptive clauses for the environment and consumer health and safety or the doctrine of necessity, including ‘economic necessity’, offer any guidance in WTO dispute settlement? Likewise, could the application by investment arbitration tribunals of broader principles of international law, such as good faith, equity and the doctrine of legitimate expectations in investment law yield insights for WTO jurisprudence?

There are of course a host of other contentious issues in the relationship between WTO dispute settlement and investor-state arbitration involving inter alia competing jurisdictional issues, competing fora (giving rise to parallel investment and trade disputes) and the challenge of WTO-inconsistent measures in investment, to name but a few. Many of them are based on systemic differences and structural variations between investor–state arbitration and WTO dispute settlement that I have discussed elsewhere. Instructive in explaining some of the broader issues in this respect is Anthea Roberts who frames the relationship between the investment treaty system and other areas of public and public international law, including international trade law, as a ‘clash of paradigms’.

Russia Charges Greenpeace Protesters with Piracy, When Will the Netherlands File Its ITLOS Action?

by Julian Ku

I’m late to this story, which has already outraged Greenpeace and other supporters worldwide.

Greenpeace activists who were seized while protesting against Arctic oil drilling face up to 15 years in a Russian jail after being formally charged with piracy.

The 14 charged include four British nationals. Kieron Bryan, a freelance videographer, and the activists Alexandra Harris, Philip Ball and Anthony Perrett were all accused of “piracy as part of an organised group”. The offence carries a prison sentence of between 10 and 15 years.

Altogether there are 30 activists from 18 different countries being held in jails in the Russian port of Murmansk. They were travelling aboard the Arctic Sunrise, a Greenpeace ship that last month mounted a protest against the Prirazlomnaya oil rig. The drilling platform, in the Pechora Sea, is operated by the Russian energy group Gazprom. As two activists tried to scale it, Russian border guards descended on to the boat from helicopters and escorted it back to Murmansk with those on board kept under armed guard.

Professor Eugene Kontorovich has been first out of the box in the U.S. blogosphere, denouncing the piracy charges as “groundless.”  Based on the facts as alleged, I think he is right. Even if the Greenpeace activists were pursuing a “private end,” scaling an oil rig doesn’t seem to satisfy the “ship” requirement in UNCLOS (to which Russia is a signatory by the way).

So assuming Eugene is right (which is always a safe bet), are there any international legal remedies for groundless piracy charges?  In fact, Russia has recognized the competence of the International Tribunal for the Law of the Sea (ITLOS) under UNCLOS Art. 292 “in matters relating to the prompt release of detained vessels and crews.”

So it seems that the Netherlands (since the Greenpeace ship was Dutch-flagged) should be able to bring an action under Article 292 arguing that the detention of the Greenpeace ship was not in compliance with UNCLOS (and citing Eugene’s point about how this isn’t piracy). Article 292 allows the Netherlands (the flag state) to send the question of the legality of the detention to ITLOS 10 days from the time of the detention. ITLOS seems to have the authority to determine whether there should be a release, and should have the authority to order Russia to release the vessel and crew upon posting of a bond.

I see no legal obstacle to such a Dutch action, and I think the 10 days waiting period has run.  The Dutch Government has apparently demanded the release of the ship and crew, and has sent consular officials to see the detained activists.  I assume the next step is a legal action at ITLOS. They might as well do this now, since any ITLOS hearing will take another 15 days at lest.

It is worth noting that Russia has already been subject to an Art. 292 ITLOS proceeding before, in the 2007 incident involving 2 Japanese fishing vessels.  ITLOS ordered the release of the one of the vessels upon posting of a 10 million rouble bond, and Russia complied with this order within 10 days. I am curious whether Greenpeace would be willing to post a bond here, or whether it could be so easily settled.  Still, with this precedent,  I would expect an ITLOS filing any day now.

Book Symposium Investment Law: Comments on Mary E. Footer’s Chapter

by Gabrielle Marceau

[Gabrielle Marceau is Counsellor in the Legal Affairs Division of the WTO and Associate Professor at the Faculty of Law in the University of Geneva. Opinions expressed are personal to the author and do not bind WTO Members or the WTO Secretariat.]

In her chapter “International Investment law and trade: the relationship that never went away Mary E. Footer explores the relationship between the international investment and trade regimes, from various perspectives. Mary’s chapter is a must read; in a few pages you will learn about the history of the evolution of investment and trade agreements and understand their natural interaction. The term “interaction” is important because trade and investment remain two distinct legal systems or legal regimes that interact with each other in various ways.

Mary’s historical analysis of the essentially bilateral nature of investment rules seems quite persuasive and offers a very insightful background for the discussions which follow.  When the author compares this system of bilateral deals with the multilateral nature of the WTO/GATT regime, the reader is provided with informed explanations.

Then Mary E. Footer makes an excellent comparative study of the investment and trade regimes with the purpose of examining the similarities and differences in their approach towards multilateralism.  With respect to what she calls the “investment regime,” she acknowledges that it may be true that the extraordinary number of individual BITs constitute a special juridical regime. Footer highlights that even though the BITs have a similar structure, they nevertheless differ in details. In fact, they differ in detail to such an extent that it would be difficult to argue that they are capable of giving rise to customary international law principles.

With respect to differences and similarities between trade and investment, Footer points out two grounds of divergence: First, the trade regime, through MFN, promotes multilateral liberalization. A majority of BITs, on the other hand, offer controlled entry that reserve the right of the host state to regulate the inflow of foreign investment into its territory. Second, while the investment regime is left with clusters of individual BITs which bind only two states, the WTO represents a common agreement among all Members.  One similarity between the two regimes she argues, is that both proceed with negotiations that are bilateral in character. I would add that another important similarity is that both systems prohibit unjustifiable discrimination. The two systems have, however, adopted slightly divergent approaches on when discrimination is justifiable and when it is not.   In any case, I believe the impact of those similarities and differences should be further analysed and understood.

Of course I can only agree with Mary Footer’s conclusion that the WTO is much more than the sum of its parts and is a dynamic and evolving institution which operates in a more complex regime of norms, decision-making activities and procedures than the GATT. In contrast, the relatively uncoordinated system of bilateral, regional and plurilateral instruments in the field of investment represents something different from the full-fledged multilateral trade regime.

Ultimately, on the basis of her analysis, Mary Footer comes to the following conclusions:

  • The “living apart together” (LAT) relationship between international investment and trade is as strong today as it ever was.
  • In international relations, there is the emergence of different but interconnected treaty regimes in investment and trade.
  • The challenge would lie in determining the extent to which the interaction between international investment and trade is going to lead to either greater convergence or a possible divergence.

The trade and investment debate is not new.  It is important to try to understand why the trade and investment matter was rejected in Cancun. Certainly the investor-state relationship is an extremely difficult issue.  But trade and investment interact naturally.  Investments can be impeded by restrictive trade discrimination for example, and often trade needs investment to start with and to grow. We cannot deny that the interaction between trade and investment is necessary for sustainable development, but it is a complex and multidimensional relationship. And with this chapter, Footer throws light on the different perspectives of this interaction between trade and investment systems or regimes.

I believe that the dispute settlement of both trade and investment systems can learn a lot from each other.  Continue Reading…

Book Symposium Investment Law: International Investment Law and Trade – The Relationship that Never Went Away

by Mary Footer

[Dr Mary E. Footer is Professor of International Economic Law at the University of Notthingham, School of Law.]

The relationship between international investment law and trade has been a constant, if not consistent, one throughout the history of international economic relations. Drawing on the evolution of these two areas of economic activity over the course of six decades, this relationship is examined with a view to understanding its historical and contextual antecedents. The same relationship is also explored from a contemporary perspective. On the one hand, there are similarities and differences in the ‘multilateralisation’ of international investment law and trade. On the other hand, the contemporary jurisprudential nexus between investment and trade demonstrates some linkages on substance and some cross-fertilisation in the interpretative sphere.

Historically speaking, there have been numerous attempts by states, beginning with bilateral treaties of friendship, commerce and navigation (FCN treaties) through to the failed multilateral instrument – Havana Charter for an International Trade Organisation (ITO) –  that have sought to regulate international investment within the context of a broader trade or commercial treaty regime. Sometimes states have used fora like the UN General Assembly, the OECD or UNCTAD, or have turned to other, ‘soft’ law instruments in order to maintain the relationship. Some of these instruments were aimed at the protection of foreign property, others at disciplining the activities of transnational corporations (TNCs) in the matter of investment and trade.

Proceeding along parallel, but separate tracks, from the late 1940s in the case of international trade law, and the late 1950s in the case of foreign investment, the two are bound by inter-connected developments in both regimes. The GATT 1947 multilateral trading system – emasculated and with shortcomings in its means for resolving trade disputes – eventually matured into a vastly expanded World Trade Organization (WTO). Subsequently, the WTO regulates some aspects of cross-border investment in the General Agreement on Trade in Services (GATS) together with trade-related investment measures (TRIMs) in the goods regime, supported by a rules-based dispute settlement system with strong enforcement powers.

By contrast, international investment law has been shaped by a burgeoning network of bilateral investment treaties (BITs) and customary international law. Both the network of BITs and the customary international law regime of investment focus on the protection of foreign property and strong investor protection standards. There is also strong reliance upon a decentralised system of investor-state dispute resolution, circumscribed only by the limits of state responsibility.

It has been argued elsewhere that this network of BITs forms a dense treaty-overarching legal framework for international investment, based on uniform principles, the functions of which are analogous to a truly multilateral system for investment. This view is disputed by the current author on the grounds that international investment and trade are based on different organising principles, display dissimilar approaches to the reciprocal nature of investment and trade obligations, and are governed by separate treaty regimes.

Such similarities and differences notwithstanding, the contemporary relationship between investment and trade is still significant. In terms of substantive provisions this can be seen with the principle of non-discrimination, as exemplified by the standards of MFN and national treatment, which is common to both investment and trade. In the interpretative sphere there has been a move towards some cross-fertilisation of WTO jurisprudence in investor-state arbitral practice and vice-versa.

The foregoing analysis leads to the conclusion that the link between international investment law and trade has never gone away. It also raises questions about the future of that relationship. In particular, it enquires as to the extent to which the interaction between international investment law and trade is leading to either greater convergence or possible divergence between the two in terms of rule-making and dispute settlement.

Book Symposium Investment Law: A Reply to van Aaken

by Anastasios Gourgourinis

[Dr Anastasios Gourgourinis is Lecturer in Public International Law at the National and Kapodistrian University of Athens Faculty of Law, and Research Fellow at the Academy of Athens]

I am very grateful to Anne van Aaken for her challenging and insightful comments on my chapter “Reviewing the administration of domestic regulation in WTO and investment law: the international minimum standard as ‘one standard to rule them all’?”, as well as for providing me the opportunity to further expand and explain my argument. She essentially poses two questions: whether the simultaneous qualification of traders as investors and vice versa, is feasible; and whether the arbitral interpretations of the fair and equitable treatment standard (FET) contained in international investment agreements (IIAs) reconfigure the content of the customary minimum standard of treatment of aliens (MST).  Based on the above, van Aaken questions my conclusion that, under the influence of MST  permeating the trade and investment disciplines, the same set of facts regarding the administration of domestic regulation may indeed give rise to successful challenges brought before either the WTO dispute settlement body or investment arbitration tribunals. I will hence attempt to address these concerns.

Traders qua investors and vice versa

From the outset, I must note that the chapter’s analysis was founded upon (rather than intending to scrutinize and put to the test) the working hypothesis that foreign traders may qualify as foreign investors under IIAs, and vice versa. In other words, this constituted a scenario which is plainly feasible, rather than omnipresent, in so far as the realities of international trade and investment are concerned.

Anne van Aaken, on the one hand, suggests taking a functional view, based on economic and management theory, so as to further explain and expand on this proposition, and rightly so: I do agree that there is much more to be written in this respect, deserving special treatment in a separate study where multidisciplinary perspectives may indeed contribute significantly.

On the other, van Aaken cautions about the normative aspects of my hypothesis, i.e. whether foreign traders may, in principle, qualify as investors under IIAs, especially in view of the very recent Apotex v. USA Award on Jurisdiction and Admissibility  under Chapter Eleven of the North American Free Trade Agreement (NAFTA). This is where we disagree, for a number of reasons.
Continue Reading…

Book Discussion Investment Law: Comments on Gourgourinis

by Anne van Aaken

[Prof. Dr. Anne van Aaken is Professor of Law and Economics, Legal Theory, Public International Law and European Law at the University of Sankt Gallen, Switzerland.]

Freya Baetens has done a terrific job of collecting and editing papers by young as well as very versed scholars on a timely topic; namely the integration of international investment law in public international law. Lurking behind is the more general discussion on fragmentation of international law; an issue considered so seriously by the international community that the International Law Commission constituted a study group led by Martti Koskenniemi which issued its report in 2006 and still sets the basic frame for discussion. Surely, investment law was never meant to exist in clinical isolation, and detailed accounts on the relationship between investment law and other law are always helpful. Part IV of the book deals with international investment, international trade and developing countries. I comment on one article: “Reviewing the administration of domestic regulation in WTO and Investment Law: The International Minimum Standard as ‘one standard to rule them all’?” by Anastasios Gourgourinis.

Gourgourinis aims to show that although trade and investment regimes are different on many accounts, they share a common core: the customary international law standard of minimum standard of treatment of aliens (MST). By juxtaposing equitable treatment provisions he submits that “the same set of facts regarding the administration of domestic regulation can give rise to successful challenges brought before either the WTO or investment arbitration tribunals.” He rightly points out that trade and investment cannot be viewed separately from each other in a globalized economy. His conclusion, drawing on case law especially in investment law, is that traders can also qualify as investors. I have two comments on that. First, I would suggest that this argument could be strengthened by – based on economic and management theory – taking a more functional view on why – with a view on domestic regulation – it is partially irrelevant for economic activity whether domestic regulation is targeting trade or investment. Both kinds of regulation are, depending on the sector and the type of investment/trade, partially substitutable from a business actor´s point of view. Second, I would caution about the normative conclusion of the simultaneous qualification of traders also as investors. Whether traders qualify as investors has been discussed for a long time (just as the other criteria for an investment), but the question is especially delicate in the light of the Apotex v United States tribunal (NAFTA, Decision from June 2013, that is after publication of the book). The tribunal stated that Apotex’s “activities with respect to the contemplated sales of its . . . products in the United States are those of an exporter, not an investor,” declining jurisdiction. Regardless of whether this decision is right or wrong, what is important is to discuss the consequences (economic and otherwise) of granting investor status to traders, conflating trade and investment regimes through the back-door. Economic as well as political economy reasons might exist why states don’t treat traders and investors alike, in spite of functional partial equivalence.

What follows is an in-depth and thorough analysis of MST as custom as well as the norms and case-law of WTO law and investment treaties. Gourgourinis argues that the MST, since it applies to all aliens and since it is custom, applies to investors and traders alike. It constitutes a “floor” of treatment and permeates, in his view, the proper administration of justice of domestic regulation vis-à-vis aliens. He does a tremendous job in selecting the norms in the WTO agreements which have MST cores for transparency and procedural justice, e.g. Art. X: 3 GATT or Art. VI GATS, uncovering minimum due process guarantees inherent in those norms. He does the same for norms containing the prohibition of arbitrariness, e.g. Art. XX GATT and Art. XIV GATS. He then attempts to demonstrate that those “provisions of the WTO agreements as minimum standard of treatment of foreign traders are essentially identical to the (customary) international minimum standard of treatment of foreign investors,” thereby zooming up the MST. He then looks at the “fair and equitable treatment” standard (FET) and its interpretation in investment law, although he acknowledges that depending on the respective treaty FET is either referring to MST or it is viewed as s self-standing standard.

I take issue with equating the MST with FET or rather the other way around: redefining the MST through certain interpretations of the FET or the WTO provisions. Continue Reading…

Book Symposium Investment Law: The International Minimum Standard of Treatment of Aliens and Administration of Domestic Regulation under WTO and Investment Protection Law

by Anastasios Gourgourinis

[Dr Anastasios Gourgourinis is Lecturer in Public International Law at the National and Kapodistrian University of Athens Faculty of Law, and Research Fellow at the Academy of Athens]

Let me start by extending a warm thanks to Freya Baetens for her overall care, diligence and patience as the editor of Investment Law within International Law: Integrationist Perspectives, the publication of which is very timely and indeed. I am also grateful to Opinio Juris for hosting this Book Symposium, as well as to Anne van Aaken, who I am privileged to have as commentator of my chapter entitled “Reviewing the administration of domestic regulation in WTO and investment law: the international minimum standard as ‘one standard to rule them all’?”. In this post, I briefly summarize the chapter’s key points.

The interaction between the legal standards established under the World Trade Organization (WTO) agreements and international investment agreements (IIAs) has steadily and increasingly become important in international judicial practice. Perhaps the most recent and controversial illustration of this interaction can be found in the plain packaging disputes against Australia, currently ongoing in parallel before the WTO dispute settlement panels (see here, here, here and here), as well as arbitral tribunals established under bilateral investment treaties (see here). For, what all these disputes share in common is the set of the underlying facts complained of, i.e. Australia’s Tobacco Plain Packaging Act 2011, and related laws and regulations, allegedly in violation of Australia’s obligations both under the WTO covered agreements and the Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments of 1993.

Hence, in the greater context of the debate regarding the relationship between WTO and investment protection law, Nicholas DiMascio and Joost Pauwelyn have undertaken a thorough study on non-discrimination standards in the WTO covered agreement and IIAs. They persuasively concluded that ‘investors cannot assume that they will prevail on a national treatment claim before an investment tribunal even if their country has earlier prevailed on the same claim at the WTO, and vice versa’ (p. 88).

But does the same apply also with respect to equitable standards of treatment also found both in WTO agreements and IIAs? Continue Reading…

Weekly News Wrap: October 3, 2013

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Middle East



  • Foreign Policy features an interview with Liberian President, Ellen Johnson-Sirleaf, dubbing her “The New Iron Lady.”
  • The ICC has issued two arrest warrants: the first for Walter Barasa, who is suspected of tampering with witnesses in the war crimes case against Kenya’s Deputy President William Ruto and the second for Charles Ble Goude, accused of working with former Ivorian President Laurent Gbagbo to orchestrate deadly post-election violence.
  • Uhuru Kenyatta, Kenya’s president, has told Somalia to “put their house in order,” in a sign of frustration at the festering instability in the neighboring country after members of a Somali armed group attacked and killed dozens at a Nairobi shopping mall.
  • Tuareg separatists and Malian soldiers exchanged fire in the northern town of Kidal in a sign of escalating tensions after MNLA rebels ended a ceasefire with the newly elected government.
  • IntLawGrrls offers a two-part analysis of the recent Appeals Chambers Judgment in the Charles Taylor case here and here.



Four Thoughts on Koh’s Defense of Unilateral Humanitarian Intervention

by Kevin Jon Heller

At Just Security today, my friend Harold Koh has mounted a typically masterful defense of the legality of unilateral humanitarian intervention (UHI) in Syria and other places. I wish all advocates of UHI were as thoughtful. Not surprisingly, though, I’m not convinced by Koh’s argument. Let me offer four (disconnected) thoughts on his claims below.

A “per se illegal” rule would overlook many other pressing facts of great concern to international law that distinguish Syria from past cases: including the catastrophic humanitarian situation, the likelihood of future atrocities, the grievous nature of already-committed atrocities that amount to crimes against humanity and grave breaches of the Geneva Conventions, the documented deliberate and indiscriminate use of chemical weapons against civilians in a way that threatens a century-old ban, and the growing likelihood of regional insecurity.

It is difficult to disagree with this statement, but I think it’s important to reiterate a basic truth: the US has made inordinately clear that it does not intend to end the humanitarian crisis in Syria. The proposed UHI would deal with chemical weapons — and only chemical weapons. It would not attempt to oust Assad. It would not be massive enough to completely disable Assad’s ability to kill innocent civilians with conventional weapons. Indeed, a strong case can be made that the US desire to attack Syria is largely self-serving, motivated by a desire to ensure that chemical weapons are never used against US interests, not to protect Syrian civilians from chemical attacks that have always seemed unlikely to be repeated.

To be clear: I am categorically opposed to any UHI by the US. But it seems to me that, at a minimum, any defense of UHI must require the intervention in question to be designed to actually end a humanitarian crisis, not simply nibble around its edges…

Book Symposium Investment Law: Comments on Ambach

by Howard Morrison

[Judge Howard Morrison is a Judge at the ICTY and the ICC]

Dr. Philipp Ambach deals with a topic that is contemporary and contentious.

In a world where the globalisation of most aspects of human life and endeavour is readily apparent it cannot be that case that those who engage in commercial, and often highly profitable, enterprises that have an impact upon the commission of serious crimes have no responsibility and affected communities no redress.

The author deals with the historical foundations of the concept of transnational corporate actors and notes the lacunae in the statutes of the UN ad hoc tribunals in respect of dealing with ‘legal persons’ as opposed to individual liability and potential guilt.

Dr Ambach points out that the exploitation of natural resources in conflict zones can easily further destabilize such situations and may be funding one or more parties to a conflict. Indeed if one examines the ongoing situation in the DRC it is arguable that the conflict is not parallel to such commercial activity but is generated by it and the territorial disputes that surround it. Resource wars, most particularly in a world of exponentially increasing human population, are with us and likely to increase, a situation not lost on the UN bearing in mind UN SC Resolution 1856 (2008). It is ironic that human rights may decrease proportionally with population growth.

The author examines how crimes against humanity and war crimes may be perpetrated by international corporate actors including in internal armed conflicts and cites relevant judgements of the ICTY and ICTR. He focuses on the war crime of pillage which has especial resonance, in particular noting that the ICC requires a qualitative requirement of personal or private use in contradistinction to the definition in the ad hocs.

Dr Ambach also examines genocidal liability and points out the potential although rightly noting the difficulty imposed by the requirement to possess a relevant specific destructive intent. He goes on to examine the crime of aggression and its current limitations.

The author makes a careful analysis of criminal responsibility distinguishing between those of corporate and individual actors  examining the legal requirements in differing national jurisdictions. He makes the important point that whilst there is yet to be a clear or common position in international law regarding the liability of international corporations for international crimes  there is a logical, if sometimes evidentially difficult, route top the liability of individual corporate officials and, perhaps, most obviously CEOs. It is important to remember that at its base level any corporation is simply an assembly of like minded individual pursuing a common commercial enterprise. The prosecution of just one senior director or executive sends a powerful message to the commercial world and should have practical and ethical consequences.

Dr Ambach goes on to examine modes of liability and discusses the vexed question of joint criminal enterprise as against co-perpetration. Making a specific analysis of Article 25 of the Rome Statute he goes on to point out the more obvious practical evidentiary obstacles and the position of an accessory by a virtue of being a corporate representative. It is important to examine Article 25 in all its parts. Dr Ambach takes the reader through the wording and interpretations with useful clarity.

He points out that the representatives of corporations may well have the sufficient mens rea to found liability under the statutes of both the ad hoc tribunals and the Rome Statute of the International Criminal Court. He makes the important point that the law relation to aiding and abetting such offences is far from clear and settled; indeed it is an aspect of the modes of liability that needs to be clarified and standardised to provide both a route to indictment and clarity for legitimate commercial actors.

This is an interesting and well thought through contribution by Dr Ambach which provides a very useful route into this important arena of international law for both the scholar and practitioner alike. He, in my view, rightly concludes that it is time to adjust the system on international criminal justice to the ‘modern landscape of perpetrators of the worst crimes in armed conflict’. This is a proposition difficult to argue against at any level. The reticence of some States to move this area of law forward in a decisive common international endeavour is, at the least, worrying for many tens of thousands of predominantly powerless citizens who are seriously, and too often fatally, affected by the activities of sometimes cynical corporate actors.

Book Symposium Investment Law: International Criminal Responsibility of Transnational Corporate Actors Doing Business in Zones of Armed Conflict

by Philipp Ambach

[Dr. Philipp Ambach is the Special Assistant to the President of the International Criminal Court. The views expressed are those of the author alone and cannot be attributed the International Criminal Court.]

The vast majority of armed conflicts of our times is, if not based on, at least closely tied with the economic interests of the belligerent parties or stakeholders behind the scenes. Business corporations which maintain trade relations with partner groups or entities that are, at the same time, engaged in an internal or international armed conflict may become directly or indirectly involved in the commission of serious crimes. Many international corporate actors provide financial resources to regional armed groups through the trade of goods that are the product of exploitation of natural resources in conflict zones, such as gold, diamonds, oil, uranium and other precious or strategic resources (so-called ‘resource wars’). These economic transactions often destabilize the region affected by armed conflict and even put oil on the fire of a looming conflict if the economic transactions serve to strengthen one or the other or both warring parties in the conflict.

Those economic actors involved may incur criminal liability if they are aware that their goods or funds serve to provide these armed groups with weapons or other means of warfare subsequently used against civilians. The crimes committed may amount to international crimes such as war crimes, crimes against humanity or genocide. In such cases, corporate actors may even come under scrutiny by the International Criminal Court (‘ICC’) for their participatory role in such crimes, if the individual criminal liability of the person(s) in control of such financial transactions on behalf of a corporate actor can be established.

International courts and tribunals have devoted little to no attention to the issue since the post-World War II criminal proceedings held against German businessmen who had been economically involved in the war (See the discussion by Nerlich). Also the UN ad hoc-Tribunals for the former Yugoslavia and for Rwanda, set up in the mid-nineties, and the ICC (which became operational in July 2002) have been set up to try individuals for international crimes; their statutes do not provide for criminal liability for corporate actors, as they are based on the principle of individual guilt for criminal conduct (nulla poena sine culpa). In contrast, companies have a corporate (not: individual) identity and are legally best described as ‘legal persons’ – to which the concept of individual guilt cannot easily be ascribed. However, even in larger corporations decisions on specific transactions are being taken by a rather small panel of senior stakeholders who are heading the corporation. Despite their remoteness from the crimes committed on the ground, individual criminal liability may attach to them if each individual only knew that the immediate effect of their business transaction would be the (continued) commission of crimes.

Individual criminal liability of representatives of corporations for international crimes can be ascribed broadly in two forms: either the company representative acts in close cooperation with his or her business partners as a co-author of crimes commonly envisaged; or the individual corporate actor’s contribution to the crime is of an auxiliary nature while the design and control over the crime is left to the business partner.

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Book Symposium Investment Law: Comments on Gleider I. Hernandez

by William Burke-White

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

I am delighted to have this opportunity to engage with the excellent chapter by Gleider Hernandez on the interaction between investment law and the law of armed conflict. The chapter makes an important contribution to an under-studied area of law, namely the interplay of international investment law and other specialized subfields, particularly international humanitarian law. I am hopeful that this chapter will open a broader discussion in this space, which is of both significant jurisprudential and practical consequence.

Let me say at the start that I agree with Gleider’s overall approach. Both international investment law and international humanitarian law are specialized sub-fields of public international law, both fields frequently reference public international law generally, and both should be treated as part of the broader system of public international law. Perhaps as a consequence of the growing depth of particular subfields of international law or the nature of issue-specific scholarly inquiry today, all too often fields such as these are studied in isolation. As a result, their interactions are often overlooked and possibilities for mutual synergy (or conflict) are neglected. I credit Gleider (and the editors and contributors of the volume as a whole) for taking on these interactions directly and examining closely the way these fields overlap and interact.

Turning to the substantive question, however, I would take a somewhat different approach. Continue Reading…

Book Symposium Investment Law: The Interaction Between Investment Law And The Law Of Armed Conflict In The Interpretation Of Full Protection And Security Clauses

by Gleider Hernandez

[Dr Gleider I. Hernandez is a Lecturer at Durham Law School]

I am grateful to the organisers of this symposium on the collection, edited by Dr Baetens, on the interaction of international investment law (‘IIL’) with other areas of public international law (‘PIL’). Broadly speaking, I identify as a ‘generalist’ international lawyer, one who is interested in the system as a whole and how its organs and agents grapple with emerging problems of global governance. As such, when I was approached in 2011 to consider and address the interaction between two specialised regimes within international law, I leapt at the opportunity to consider how the law of armed conflict, and specifically, international humanitarian law (jus in bello or ‘IHL’), a distinct legal regime that, in its modern form, has been developing through multilateral treaty practice for well over a century, would be considered within the sphere of international investment law, a relatively new area of international law that has blossomed in the last two decades, yet primarily through bilateral treaty practice and through a rich body of case law.

The results were very interesting. With abundant treaty practice in which bilateral investment treaties (BITs) embedded variously-termed clauses providing for protection and security in various forms, the interaction and possible conflict of norms between these two specialised regimes was inevitable. Indeed, factually speaking, a substantial portion of modern investment disputes have arisen precisely through the continued scourge of armed conflicts between and within States. As such, two questions needed to be considered: first, the manner through which public international law has addressed and considered the effects of armed conflicts on rights and obligations, and whether generalised, abstract rules and principles can be distilled; and secondly, whether practice in the area of investment law—specifically treaty practice in BITs and the interpretation of such treaties by specialised investment tribunals—could be said to be in harmony with the general international law framework.

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Ryan Goodman Responds to War/Not War

by Kevin Jon Heller

Ryan has kindly responded to my post commenting on his claim that “arguments have been inconsistent with regard to one fundamental legal question: whether the US is, as a matter of law, in an armed conflict.” Unfortunately, our conversation has something of a Pinteresque quality: in claiming that I mischaracterized one of his central claims, he mischaracterizes my central claim. Ryan’s reply is predicated on the idea that I’m defending specific scholars against the idea that they have flip-flopped opportunistically regarding whether the US is involved in an armed conflict with al-Qaeda. I don’t know why he thinks that: he provided no examples of specific scholars flip-flopping in his post, and I did not defend any specific scholars against the claim of flip-flopping in mine. My primary point was simply this: because the existence of armed conflict, particularly non-international armed conflict, is fact-specific, context-dependent, and fluid, it is problematic to assume — as Ryan does, and as the USG alway has — that (in Ryan’s words) it would have been “a better path over the past twelve years” to take “a consistent position that one legal situation (war) or the other (not a war) exists” between the US and AQ than to take different positions on different aspects of that supposed “armed conflict” at different points of time. My secondary point, which built on the primary one, was that Ryan’s commitment to a unitary view of the supposed “armed conflict” between the US and AQ blinded him to the fact that it was impossible to infer anything untoward or opportunistic — “flip-flops” is obviously a word with negative connotations — from the fact that different scholars have taken different positions at different points in time on different aspects of that conflict. I stand by both points, and unfortunately, because of the misunderstanding between us, Ryan’s post addresses neither of them.

I also want to briefly address Ryan’s dismissal of my claim that, with regard to 9/11, “[o]ne attack, no matter how horrible, does not a (non-international) armed conflict make.” He disagrees, citing a 2003 article by Derek Jinks in which Jinks claims (1) that “the laws of war apply to all acts committed in an armed conflict even if committed prior to the point at which the ‘protracted’ threshold was crossed,” and (2) that NIAC exists even if the hostilities are not adequately organized and intense as long as “the state party to the hostilities interprets them as an ‘armed conflict (a subjective standard).” I have great respect for Derek’s work, but both points are well outside of the IHL mainstream. (And note that Derek repeated the second point today.)

I will try to write in more depth about Derek’s points soon. Suffice it for now to say that the only cite he provides for his first point does not actually support his argument. Here is what he says in the footnote, citing paras. 619-27 of the Trial Chamber’s judgment in Akayesu:

The jurisprudence of the ICTR is instructive on this point. The relevant “armed conflict” in Rwanda lasted a total of six months. Applying the ICTY definition, the tribunal held Common Article 3 applicable to the conflict, finding that the “armed conflict” existed from the initiation of the hostilities even if the existence of an armed conflict could only be discerned after the violence had become “protracted.”

That is not what the Trial Chamber held. It held only that “[i]n the present case, evidence has been presented to the Chamber which showed there was at the least a conflict not of a international character in Rwanda at the time of the events alleged in the Indictment” (para 627; emphasis mine). The events alleged in the indictment with regard to war crimes began on 7 April 1994, one day after President Habyarimana’s plane was shot down. By that time, the conflict had already begun between the RPF and FAR (see para. 109 of the judgment), justifying the Trial Chamber’s conclusion that a NIAC existed. More importantly, the Trial Chamber neither suggested nor implied that the attack on the plane — the Rwandan genocide equivalent to 9/11 — was itself part of the NIAC that began the next day. That was simply not an issue in the case.

Finally, it’s also worth briefly noting that Akayesu also contradicts Derek’s second point — that a state’s subjective belief a NIAC exists means that a NIAC exists even if the hostilities do not objectively qualify as armed conflict. The Trial Chamber specifically noted (para. 624) with regard to both Common Article 3 conflicts and Second Additional Protocol conflicts that “these criteria have to be applied objectively, irrespective of the subjective conclusions of the parties involved in the conflict.” But I’ll have more to say about that issue later.

Guest Post: A Critique of Dodge and Cleveland, and Thoughts on Bond

by John C. Dehn

[John C. Dehn is an Assistant Professor at Loyola University Chicago School of Law]

In a recent article posted to SSRN, and introduced by Duncan here, Professors Sarah Cleveland and Bill Dodge (“the authors”) have done us all a great service in unearthing the history of the Offenses Clause and its inclusion of U.S. treaty violations.  Although I was originally suspect of their claim that the Offenses Clause empowers Congress to punish all U.S. treaty violations, as was obvious in my comments to Duncan’s post, I ultimately found myself convinced of this aspect of their thesis.

The persuasive evidence they marshaled to support this broad claim, however, caused me to question the rather uncertain limitation that they later placed on it: that conduct being punished pursuant to the Offenses Clause “must itself be condemned in some manner under international law.”  (p. 3, all bare page references are to draft article)  Further to this point, the authors posit that the Offenses Clause allows Congress to punish “when: (1) a treaty operates directly to prohibit the conduct; (2) a treaty expressly mandates that states punish the conduct; (3) a treaty clearly proscribes the conduct, even if it does not operate directly on individuals or expressly mandate punishment; [or] (4) a treaty authorizes punishment under international law, even if it does not require it.  In all such cases, however, it must be international law that condemns the relevant conduct, at least in general terms….”  (p. 53).

The intent behind these proposed limitations is laudable: to circumscribe what might otherwise be construed as virtually limitless congressional authority to regulate domestic matters potentially implicating U.S. treaty obligations.  Much of the evidence the authors offer in support of the broader claim seems to potentially undermine these limitations, that is, depending upon exactly what they intended to exclude.  (I, for one, would welcome the authors to provide examples of treaty provisions excluded by their proposed limitations.  In establishing their broader thesis the authors cited even congressional reliance upon what appear to be hortatory provisions of the U.N. Charter.  See p. 34).

Throughout the article, the authors rely on founding era and other evidence supporting a purposeful reading of the Offenses Clause. To summarize: (1) the Offenses Clause reaches treaty infractions because treaties, even bilateral treaties, become part of the law of nations; and, (2) the Offenses Clause was enacted so that Congress may ensure national compliance with the law of nations, including U.S. treaty obligations.  They present an abundance of pre- and post-constitutional evidence to support this broad thesis.  And they recognize that the law of nations applies not only to a state acting in its corporate capacity but also to its members acting individually.  Thus, the act of a single person may, in the proper context, place a nation in violation of its international obligations. In such circumstances, it would seem, the Offenses Clause allows regulation of any such act.

Indeed, the authors’ evidence strongly suggests that a relevant provision of international law need not “address” if this means to some affirmative extent, even generally (unless exceptionally generally), the precise conduct Congress is regulating pursuant to the Offenses Clause.  Any conduct capable of violating a treaty obligation in a proper context is susceptible of regulation.  To say that the law of nations includes treaties is to say that every act that results in a treaty violation is “condemned” by the law of nations.  Thus, it seems redundant for the authors to suggest, as a limitation, that “it must be international law that condemns the relevant conduct, at least in general terms.” And it seems internally inconsistent to require that “a treaty clearly proscribes the conduct, even if it does not operate directly on individuals or expressly mandate punishment.”  Violation of a general treaty provision may occur in myriad ways not mentioned or even contemplated at the time the relevant treaty was drafted and adopted.

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Book Symposium Investment Law: Comments on Vid Prislan’s Chapter

by Kathleen Claussen

[Kathleen Claussen is a Legal Counsel at the Permanent Court of Arbitration. The views expressed in this post are those of the author only and do not reflect any view of the Permanent Court of Arbitration or its staff.]

Vid Prislan’s chapter on non-investment-treaty obligations in investment treaty arbitration tackles a common issue in tribunal decisionmaking that has not been fully theorized or understood. His work advances that effort by examining ways in which tribunals take account of non-investment-treaty obligations and by acknowledging that these methods may be viewed as insufficient for responsible administrative governance on the part of state actors. Thus, he concludes that states should undertake efforts to amend treaty language so as to accommodate all their obligations and interests and to “ensure greater predictability and coherence in the interpretation of treaty terms.”

Prislan’s chapter touches on two important themes. On one hand, the chapter is a commentary on state obligations. It speaks to how states can better manage their international obligations, as well as their domestic obligations, with an eye toward avoiding conflicts between them. From a second angle, Prislan makes a contribution to the debate on the future of the international investment law “system” or “regime.” On either reading, the chapter provides some useful takeaways; this short post makes some brief comments on each.

Prislan focuses on the conflicts he perceives between and among treaties and domestic law. He outlines ways through which these perceived conflicts might be resolved using interpretative tools. Certainly, others would argue that investment treaties in particular are designed with that in mind to allow states to maintain many of their obligations through exception provisions or through clauses permitting a state to accept liability by compensating an investor in full, and thus, what Prislan views as “conflicts” are in fact provided for in the instruments themselves, even if only implicitly. Prislan nevertheless sets out to sketch a means of harmonizing state obligations in an effort to avoid asking arbitral tribunals to reconcile or resolve seemingly incompatible obligations.

In so doing, Prislan emphasizes the limited flexibility of arbitral tribunals – limited by the scope of interpretative methods. An equally interesting discussion could be raised as to who should decide how perceived conflicts among instruments will be resolved. Interpretative tools are not limited to the use of arbitral tribunals; rather, reconciliations among competing obligations are made by a wide range of actors. At least for purposes of his chapter, Prislan accepts that arbitral tribunals are the default interpreters without questioning the larger design that sets up tribunals as the front line of decisionmaking. Have states made a mistake in electing to have these matters resolved by a panel of three non-governmental decisionmakers rather than an apparatus among the government’s own administrative machinery? Perhaps what underlies Prislan’s analysis is a recommendation that states take themselves out of such now common dispute resolution mechanisms where such competing obligations are managed in these ways.

This consideration brings us to think about another reading of Prislan’s chapter: as a commentary on the future of the investment system. Continue Reading…

Book Symposium Investment Law: Non-Investment Obligations in Investment Treaty Arbitration – Towards a Greater Role for States?

by Vid Prislan

[Vid Prislan is a Research Fellow PhD-candidate at the Grotius Centre for International Legal Studies of Leiden University]

First of all, I would like to thank the editors of Opinio Juris for providing me with the opportunity to briefly present the arguments which I raise in my chapter in Investment Law within International Law: Integrationist Perspectives.

My chapter deals very broadly with the issue of non-investment obligations in investment treaty arbitration. It does so by exploring how investment tribunals can consider (and take into account) arguments based on sources of obligations other than those under investment treaties.

The possibility of considering non-investment obligations has occasionally been questioned by reference to the limited jurisdictional competence of investment tribunals. Indeed, the jurisdiction of these tribunals is not unqualified, but limited by the extent to which the States assented to it in the underlying investment treaty – that is, potentially confined only to pronouncing upon alleged violations of the substantive rights under the treaty. Yet, I argue, first of all, that jurisdictional limitations do not necessarily restrict the scope of the law applicable to the dispute. In most cases, in fact, investment tribunals will enjoy broad latitude with regard to the scope of the legal rules that they are entitled to apply, which makes it possible for them to consider, and indeed apply, obligations other than those under the treaty. Second, I contend that investment agreements were not conceived as self-contained regimes, and therefore, cannot be applied in isolation of other rules and principles of international law. In particular, I argue that, at the very least, rules of customary international law, as well as general principles of law remain applicable, to the extent that their application has not been excluded by the investment treaty as lex specialis.

Even if one accepts that jurisdictional limitations potentially prevent investment tribunals from directly adjudicating upon claims based on non-investment obligations, there is no impediment for investment tribunals to consider these rules when constructing the meaning of the substantive protections laid down in an investment treaty. I suggest that some of the jurisdictional limitations may be overcome by taking account of non-investment obligations in the process of interpreting the provisions of the investment treaty. I focus specifically on three interpretative techniques that can be applied by investment tribunals for this purpose.
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Book Symposium Investment Law: A reply to Prof. Tullio Treves’ comments

by Nicolas Hachez and Jan Wouters

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

First of all, we would like to thank Prof. Treves for his kind words on our chapter, and for his very interesting ‘think outside the box’ comments.

Prof. Treves’ observations contain three main points:

  • Alternative dispute resolution mechanisms as an alternative to arbitration
  • The recent denunciation of the ICSID convention by a number of state parties
  • The possibility to mirror the ‘prompt release’ procedure set out in art. 292 of the UN Law of the Sea Convention in international investment law.

We will address Prof. Treves’ points in that order.

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Book Symposium Investment Law: Observations on Hachez and Wouters’ Chapter

by Tullio Treves

[Tullio Treves is a Professor of International Law at the University of Milano and a Public International Law Consultant at Curtis, Mallet-Prevost, Colt & Mosle LLP in Milan]

This chapter is entitled “International investment dispute settlement in the twenty-first century: does the preservation of the public interest require an alternative to the arbitral model?” It is a detailed and well reasoned review of the criticisms raised against arbitration as the  mechanism dominating the settlement of international investment disputes, of the steps already taken or underway to attenuate the negative aspects addressed by such criticism, and of the more ambitious reforms that have been proposed.

Among the criticisms addressed are the following: that the arbitral model “fails to live up to the basic precepts of democracy and the rule of law” and shows a lack of consideration of the public nature of the interests involved;  that there exists a real or perceived bias of arbitrators (and of the arbitrators’ appointing authorities) in favor of investors due inter alia to the fact that many arbitrators are at the same time practicing lawyers in law firms which may have to cater to the interests of other clients not involved in the specific dispute; that the process lacks transparency; that contradictory decisions  involve a risk of fragmentation. Notwithstanding these criticisms, the authors’ “interim conclusions” are that “arbitration works well most of the times” but that “in view of the requirements of the rule of law and in light of the public interest, ‘working well most of the time’ is not enough” (p. 434).

The  “current reforms” examined by the authors and aimed at overcoming the criticisms concern transparency and the participation in proceedings by “non-parties” such as public interest non-governmental organizations as amici curiae. The assessment of the authors is summarized in the relevant chapter’s title: “too little, too late” and further elaborated  explaining that: “these reforms are unlikely to resolve the legitimacy crisis by themselves. … the transparency reforms remain subject to the consent of the parties and therefore do not institutionalise transparency per se” (p. 438).

The more ambitious proposals for reforming the system are considered in a chapter entitled “Doing away with arbitration?”. As a matter of fact, only a short passage about alternative disputes resolution methods (as mentioned in the US Model BIT) concerns alternatives to arbitration. Most attention is given to the proposals, which are far from being accepted so far, for eliminating from investment agreements the exclusion of the exhaustion of local remedies rule and for introducing an appellate level, possibly through  an institutionalized permanent body. The newly acquired European Union competence in the field of investment is seen as a factor that  might change the present situation in which important reforms (including that concerning an appellate body) seem impossible. In a chapter on “Doing away with arbitration?”, one could have expected a discussion of the implication of recent denunciation, by various States, of the ICSID Convention and of BITs, which seems to me the most radical aspect of recent practice for “doing away with arbitration”.

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Book Symposium Investment Law: Does the Preservation of the Public Interest Require an Alternative to the Arbitral Model?

by Nicolas Hachez and Jan Wouters

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

This chapter, entitled ‘International investment dispute settlement in the twenty-first century: does the preservation of the public interest require an alternative to the arbitral model?’ takes a close look at the arbitral mechanism which is the preferred dispute settlement mode in investment disputes between foreign investors and host states, and reviews the criticism which arbitration is currently facing in this context. The starting point of such criticism is that investor-state disputes concern questions of public law as they allow for the review of domestic legislations. Arguably, the arbitral model would not be suitable to settle disputes which directly engage the public interest. The argument is usually articulated around the following concerns:

  • The arbitral model is designed after commercial arbitration and would fail to live up to the rule of law requirements of administrative review. This is evidenced notably by the fact that arbitral proceedings are one-off procedures not amenable to appeal, thereby allowing for inconsistent decisions, or by the fact that proceedings involving questions of public interest are untransparent as confidentiality is the rule in commercial arbitration.
  • Arbitral tribunals would lack independence, as there are no incompatibilities for arbitrators and remuneration by the claim would be an encouragement for arbitrators to take legal positions that encourage the lodging of future claims and therefore increase the arbitration business. Likewise, it has been noted that a number of arbitrators are also practicing lawyers regularly advising multinational corporations, and would therefore have an interest to adopt pro-investor decisions so as to serve the interest of their clients.
  • Arbitrators would lack impartiality, as the arbitral system would be structurally biased towards investors’ interests and towards the application of investment disciplines even when they potentially conflict with other bodies of international or domestic law.

The result of such deficiencies would be that the arbitral model for settling investor-state disputes disregards issues of public interest which such disputes naturally entail, and would be biased towards preserving the private economic interests of foreign investors. In the face of such criticism, the international investment arbitration regime (notably under the impulsion of ICSID, UNCITRAL, the PCA, and through the amendment of certain investment treaties like NAFTA) underwent reform under several counts aiming at increasing consideration of issues of public interest:  Continue Reading…