Exploring International Law with Opinio Juris in 2013: Highways, Back Roads, and Uncharted Territories…

by Chris Borgen

There’s never a boring year in international law and 2013 turned out to be particularly eventful: Syria, major cases in front of national and international courts, a possible nuclear deal with Iran, and turmoil in Eastern Europe, Egypt, and South Sudan, to name but a few reasons.

This post is not an attempt to log all that we have written about on Opinio Juris this year. There’s just too much.  If any of these topics (or others) are of particular interest to you, you can use our search function to find the posts related to them.  Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013.

As for a major highway, we had 33 posts that mentioned Kiobel this year (as well as many earlier posts, totaling 136 as of this writing) including an extensive symposium focused on the decision.  A mid-stream round-up of the symposium is here.  Roger also wrote about the subsequent interpretation of Kiobel by lower courts and Ken wrote on Kiobel and Bauman v Daimler.

The recent oral argument before the U.S. Supreme Court in Bond v. U.S. was also extensively analyzed, including, for example, commentary by Duncan, Peter, and Julian, and a guest post by Marty LedermanBond was also the subject of our first podcast  (which Peter organized), a conversation among Peggy, Duncan, Julian and Peter.  We even heard Duncan interviewed and remixed with Nicholas Rosenkranz and John Bellinger in a segment on NPR’s RadioLab.

Much of the politico-military news in 2013 was focused on the ongoing conflict in Syria and the dismay over finding an international response. The Opinio Juris bloggers and guest bloggers wrote many posts on Syria this past year.  To name a few: Kevin wrote about the relation of the Vienna Convention on the Law of Treaties to the International Criminal Court statute and how this can affect our analysis of whether the ICC statute criminalizes the use of chemical weapons.  He also asked the provocative question: What’s so terrible about chemical weapons?  Peter asked whether President Obama surrendered more initiative to Congress than was constitutionally necessary.  And both Peter and Deborah analyzed the Senate’s draft of the Authorization to Use Military Force.  Ken wrote about the role of the Security Council.  Kevin considered the Russian proposal and I wrote a background on the proposal and on the Organization for the Prohibition of Chemical Weapons, the international agency that was expected to be involved in taking control of Syria’s chemical arms.  We also compared and contrasted Russian and American uses of legal rhetoric in the public diplomacy over Syria and considered President Obama’s “credible threat” arguments.

The many guest posts on Syria included Marty Lederman on the UN Charter and the domestic debate (second post here), Geoff Corn on the domestic War Powers debate, and Carsten Stahn arguing against a “new affirmative defense to UN Charter article 2(4),” as well as others.

With so much focus on Syria in the mainstream media (for a while, at least), one may forget that there were many other UN-related stories throughout the year.  For example, Kristen wrote about Saudi Arabia spurning its Security Council seat and the Secretary General’s fifth report on the responsibility to protect  (R2P).  We also tracked the ongoing dispute between Haiti and the UN over the cholera outbreak, including posts by Kristen considering the responsibility issues (1, 2)  and by Ken, who asked if the cholera is a public or private law claim.

Regarding international organizations more generally, Kristen wrote about their privileges and immunities, including about the argument that they have a duty to prevent .  Beyond the UN, Kristen also looked at the evolving roles of the African Union (1, 2).  I traveled to the Hague for the Peace Palace Centennial and wrote about the centennial, the Permanent Court of Arbitration (an institution about which Kristen has also written), and the relationship of the Hague institutions to citizen activism.

International dispute resolution was a key focus this year.  Aside from the cases mentioned above, take these three examples:  Julian wrote a variety of posts considered interesting developments in a variety of ICJ cases (such as: 1, 2, 3), Kristen wrote about the ECJ’s new appeal judgment in Kadi, and Roger addressed WTO dispute resolution concerning seal products.   We also had many posts on the ongoing Chevron/ Ecuador saga (such as this one), including a roundtable discussion on Chevron/Ecuador and the rise of arbitral power with the American Lawyer’s Michael Goldhaber.

International criminal law was also consistently discussed throughout the year, particularly in Kevin’s posts.  Examples include posts concerning  Seselj (1, 2), Ruto and Kenyatta (1), and the continuing story of Libya, the International Criminal Court and Saif (see, e.g., 1, 2, 3, 4, 5).  We also had an ongoing discussion concerning specific direction (such as: 1, 2, 3).  There was even some tart satire.

Opinio Juris bloggers brought their own perspectives to the many debates this past year concerning different aspects of national security policy.  For example, Deborah tracked the legal issues concerning drones, considering both US law and international law and also focusing in on the CIA’s approach to drones, while Kevin argued why the public authority defense would not apply to the CIA targeted killing of a US citizen, and Peter addressed the overlap of nationality issues and the regulation of NSA intelligence gathering.

Overlapping with the national security debates is the question of how law responds to technological change.  I ended last year with a call for international lawyers to look forward towards the new issues that are arising from new tech.  This year we have seen daily news overtake science fiction, and we explored that phenomenon on Opinio Juris, and, among other tech/security issues, I wrote about the need to regulate the market for “zero day exploits” used by governments to purchase tools to hack computers around the world  and about data mining, while Ken wrote about the challenges posed by autonomous weapons (see, e.g., 1, 2).

This past year, we kept looking for the international legal angles that might have been missed in the mainstream media. We had posts on topics ranging from the global governance (Peter: 1, 2) and dispute resolution (Roger: 1, 2) issues implicated in the aftermath of the Bangladeshi factory collapse to the legal aspects of the Iran nuclear deal (posts by DuncanKevin, and Kristen).  We wrote about disputes over the status of Okinawa (Julian wrote about China’s claim,  I wrote about the independence movement) and the Amanda Knox trial, where Peter considered the commentary on whether Knox could be sent back to Italy and explained the importance of actually reading extradition treaties.

In line with “issue spotting” how international law relates to other stories in the news, many of us wrote about various aspects of “great power” politics and international law beyond Syria.  One of the recurring themes this year was a consideration of China, Russia, and Law of the Sea issues.  A variety of posts focused on the role that international law may or may not have in resolving China’s various maritime disputes (e.g.,  12).  Others were concerned with the debacle over Russia’s detention of the crew of the Greenpeace Arctic Sunrise (see, e.g.,  1, 2, 3), whether US actions regarding UNCLOS are a precedent for Russia and China balking at UNCLOS dispute settlement, and various other UNCLOS related topics (such as this).  And there is the issue of China’s aircraft identification zone (1, 2).

The end of the year brought new unrest in Ukraine and I wrote a series of posts about great power politics and international legal rhetoric among the EU, Russia and the US over Ukraine, Moldova and other countries in Eastern Europe (1, 2, 3).

We also took a step back and considered not only the substance of international law, and the relationship of international law to international relations, but also the international legal profession itself and international law’s relation to popular culture.

Roger, for example, wrote about  the growth of international legal scholarship, and noted the Google rankings of most cited international law journals, but also asked “Why is academic writing so bad?

As for international law in popular culture, we had posts on film (see also this), TV (the first of a series of posts), sci-fi novelsstreet art, culinary matters (well, olive oil: 1, 2, 3), and even apps.

This year we continued to host online symposia for leading law journals.  We have held symposia for the American Journal of International Law (and this one), the Leiden Journal of International Law, the NYU Journal of International Law and Politics, and the Harvard International Law Journal.

We had book discussions on Anupam Chander’s book The Electonic Silk Road, Freya Baetens’ edited volume on investment law within international law, Jeffrey Dunoff’s and Mark Pollack’s edited volume on international law and international relations theory, Katerina Linos’s book The Democratic Foundations of Policy Diffusion: How Health, Family and Employment Laws Spread Across Countries, Eric Posner and Alan Sykes’s book The Economic Foundations of International Law, and Curtis Bradley’s book International Law in the U.S. Legal System.

We also expanded our activities with our first podcast (as mentioned above) and our increased use of Twitter, both shepherded by Peter.

Key to many of these activities were the incredible efforts of our Assistant Editors An Hertogen and Jessica Dorsey.  Besides organizing our various symposia, book discussion, and writing the Weekly News Wraps, Weekend Roundups, and Events/Announcement postings, they also organized and managed our Emerging Voices Symposium this past summer, which brought posts 32 junior academics, practitioners, and graduate students to our readership.

So, 2013 was interesting, to say the least.  I hope 2014 will be interesting as well, but for all the best reasons:  peaceful dispute resolution working, justice being upheld, and  humanity’s worst tendencies being reined in.  But regardless as to whether my New Year’s wish is fulfilled, we will be here at Opinio Juris: chronicling, analyzing, and discussing.  And, as always, we hope you will participate in the conversation.

http://opiniojuris.org/2014/01/01/exploring-international-law-opinio-juris-2013-highways-back-roads-uncharted-territories/

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