Archive for
April, 2014

ASIL Mid-Year Research Forum – this year in Chicago

by Kristen Boon

The ASIL Mid-Year Research Forum has fast become known as one of the best workshopping opportunities for new and established international law scholars alike.  It was launched by Kal Raustiala in 2011 at the Mid-Year meeting in LA, moved to Athens, Georgia in 2012, northwards to New York in 2013, and this year will take place in Chicago from November 6-8, 2014.

Tim Meyer and myself were the co-chairs of last year’s research forum in New York, and so I can personally attest to the high quality of papers presented, the wide range of topics discussed, and the frank and stimulating discussions that organically took place during the meeting.

This year, we passed the batons onto the very able Katerina Linos and Karen Alter, who are the 2014 co-chairs.  I highly encourage everyone to participate in this event; even if you are not submitting a proposal, individuals are invited to volunteer as discussants.   This event demonstrates the central role of new scholarship at ASIL. Here is the call:

The American Society of International Law calls for submissions of scholarly paper proposals for the ASIL Research Forum to be held during the Society’s Midyear Meeting in Chicago November 6-8, 2014.

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

Papers can be on any topic related to international and transnational law and should be unpublished (for purposes of the call, publication to an electronic database such as SSRN is not considered publication).  Interdisciplinary projects, empirical studies, and jointly authored papers are welcome.

Proposals should be submitted online (use form below) by June 8, 2014. Interested paper-givers should submit an abstract (no more than 1000 words in length) summarizing the scholarly paper to be presented at the Forum.

Review of the abstracts will be blind. Notifications of acceptance will go out in mid-July.

Papers will be assembled into panels. The organizers welcome volunteers to serve as discussants who will comment on the papers. Please e-mail submissions [at] asil [dot] org if you are interested in serving as a discussant. All authors of accepted papers will be required to submit a draft paper four weeks before the Research Forum. Drafts will be posted on a web page accessible exclusively to Forum participants.

 

Guest Post: De Jure and de Facto Recognition as a Framework for Zivotofsky

by Ryan Scoville

[Ryan Scoville is an Assistant Professor of Law at Marquette University Law School.]

Recently the Supreme Court granted certiorari in Zivotofsky v. Kerry to resolve an important question in U.S. foreign relations law: does the power to recognize foreign states and governments belong exclusively to the President, or do the political branches hold it concurrently? More specifically, Zivotofsky concerns the constitutionality of Section 214(d) of the Foreign Relations Authorization Act of 2003, which requires that upon request from a U.S. citizen born in Jerusalem the Secretary of State must record “Israel” as the place of birth on the individual’s passport. Oral arguments are scheduled for the fall. The case has generated a lot of interesting commentary, the most impressive of which is a pair of law review articles (here and here) by Robert Reinstein, who uses textual and historical analysis to argue that the President shares the recognition power with Congress. In this post, I want to sketch out an alternative view that grants substantial recognition powers exclusively to the President while also making sense of Professor Reinstein’s historical research.

As I understand it, Reinstein’s argument goes like this: First, claims of executive exclusivity must meet a heavy burden of persuasion because plenary executive power is contrary to the Constitution’s system of checks and balances. Second, the claim of an exclusively executive power over recognition fails to meet this burden—the plain text of the Constitution offers no support, evidence of original meaning is silent, and post-ratification history suggests, if anything, that the political branches hold the recognition power concurrently. Congress thus shares authority to recognize foreign states and governments. Reinstein focuses more on defeating the idea of plenary executive power than identifying the affirmative source of a concurrent power in Article I, but he notes that Congress’s authority to declare war, regulate foreign commerce, and enact necessary and proper legislation creates an implied basis for congressional recognition.

In laying out an alternative view, I want to suggest first that it’s important to be precise about what “recognition” means. International law of course differentiates between the recognition of states and governments, and between recognition de jure and de facto. With de jure recognition of a state, the United States expresses that a given political unit qualifies as a state under international law and thus holds the rights and obligations that accompany statehood, including the right to invoke sovereign immunity and the act of state doctrine as defenses in court. De jure recognition of a government, by contrast, is acknowledgment of a foreign government as the depository of a state’s sovereignty. This kind of recognition signals a general willingness to enter into normal diplomatic relations and facilitate the government’s exercise of the state’s sovereignty vis-à-vis the United States. Finally, de facto recognition also entails a willingness to carry on official relations, but without necessarily saying anything about the particular form those relations will take. One can de facto recognize a foreign government, for example, without exchanging ambassadors or providing its leaders with immunity from suit. (For a more extensive discussion, see the work of Stefan Talmon.) Continue Reading…

The End of Treaties? The End of History?

by Duncan Hollis

AJIL Unbound, the new on-line companion to the American Journal of International Law, has begun to publish short essays this week for its on-line Agora, The End of Treaties? (see the original call for papers here). So far, they have posts up by Tim Meyer (‘Collective Decision-making in International Governance‘) — and Joel Trachtman (‘Reports of the Death of Treaty Are Premature, but Customary International Law May Have Outlived Its Usefulness‘).  Additional posts will be rolled out over the course of the week here.

As for me, I regard this ‘End of Treaties?’ idea as analogous to Francis Fukuyama’s famous End of History thesis.  Like Fukuyama’s piece, I think the idea here is more an argument about the future of treaties as opposed to either an historical or empirical claim that treaties no longer matter much to international law.  Just as it’s hard to argue that history ended with the Cold War, it’s hard to make the case that we’re now witnessing the end of treaties.  On the contrary, there are more treaties in force today than ever before in human history. The United States has more than 10,000 treaties in force and the UN Treaty Office has registered more than 64,000 treaties (this notwithstanding widespread noncompliance by States with their obligation to register treaty commitments).  The breadth and depth of these treaty commitments is equally striking — one is hard pressed to find an international law issue today where there is not some treaty that speaks, directly or indirectly, to the question.  

Perhaps the “End of Treaties” idea should emphasize the decline in treaty-making as opposed to treaties themselves?  Again though, I’m not sure there’s evidence to support the claim.  True, the number of major multilateral treaty negotiations has fallen off in recent years (at least when compared to the late- and immediate- post Cold War periods) while other negotiations appear stalled. But it’s not clear to me that we’re heading to some definitive end-point of obsolescence rather than witnessing an oscillation over time in terms of when and how treaty-making gets done. Nor am I persuaded by the Senate’s recent recalcitrance on treaty-making.  For starters, it’s actually a pretty small piece of U.S. treaty-making; I believe Senate advice and consent treaties in recent decades constitute only about 7% of the international agreements concluded by the United States. And, it’s not like the Senate has refused to give advice and consent entirely; 2013 saw 4 treaties get through.  This is not to say that the Senate process is working well right now — it’s clear not — but rather to suggest it may not yet be time to write that process off completely.

Finally, I do not think one has to find that treaties as a form of international commitment are necessarily weakened by the emergence in recent years of all these new forms of what Tim calls ‘collective decision-making’.  I don’t accept the idea that we’re in a zero-sum game where every time we use a political commitment or code of conduct, there’s one less treaty going forward.  Instead, I wonder if the proverbial pie may be expanding with the expansion in forms of international cooperation; the future (or indeed, even the present) may bear witness to more treaties AND more political commitments, international institutional norm-making, soft law or what have you.  Thus, Tim and I may part ways a bit here as a descriptive matter since he’s inclined to think there’s been some decline in treaty usage.  I’d concede though that there’s research that we could do to settle the trade-off questions.

In the end, I may not be in agreement with the Agora’s theme, but I applaud its attention to the treaty topic.  For me, treaties deserve more attention, not because they are in some form of decline, but rather because of how critical they have become to the functioning of the modern international legal order.  So, I am looking forward to thinking more about Meyer and Trachtman’s posts and reading the remaining contributions later this week.  I trust it’s the start of a great conversation.

PTC II to Defence Attorneys: You Are All Criminals

by Kevin Jon Heller

I’ve been remiss in my blogging lately for a variety of reasons, but I can’t let pass two interrelated decisions by Pre-Trial Chamber II (sitting as a single judge) in the criminal proceedings against Aimé Kilolo Musamba and Jean-Jacques Mangenda Kabongo — Bemba’s lead defence attorney and case manager, respectively. The two men, who are currently in custody, are accused of tampering with witnesses and manufacturing evidence.

The decisions in question concern the requests by Kilolo and Mangenda for release pending trial. To justify denying a suspect pre-trial release, the PTC must find (1) that there are reasonable grounds to believe the suspect committed the crimes alleged by the OTP, and (2) that ongoing detention is necessary for one of the reasons set forth in Art. 58(1)(b) of the Rome Statute — namely, to ensure that the suspect appears at trial, to prevent the suspect from obstructing the OTP’s investigation, or to prevent the suspect from continuing to commit crimes.

In both cases, and essentially on exactly the same grounds, the PTC found that continued detention was warranted. I’m willing to accept the PTC’s conclusion regarding the first limb of the detention test; although I’m skeptical the OTP can prove the allegations at trial for a variety of substantive and procedural reasons, a judge could find that there are reasonable grounds to believe Kilolo and Mangenda tampered with witnesses and/or manufactured evidence. But I am appalled by the PTC’s approach to the second limb of the detention test, where it concludes that Kilolo and Mangenda are both flight risks and are likely to obstruct the OTP’s investigation. The PTC’s reasoning exhibits a truly breathtaking contempt for the role that defence attorneys and case managers play at the ICC. Here is what the PTC says about Kilolo being a flight risk (and the PTC makes the same argument for Mangenda) (emphasis added):

22. Whilst acknowledging the handing over of Mr Kilolo’s passport to the authorities of the Detention Centre, the Single Judge observes that this does not detract from the risks of flight which are inherent in the very connection of Aimé Kilolo to the network of Jean-Pierre Bemba Gombo and to the ensuing likelihood that he might be made available resources enabling him to abscond from the jurisdiction of the Court. Furthermore, it is to be noted that Mr Kilolo requests to be released in Belgium, i.e. in a country within the Schengen area, where travel is to a great extent possible without the need that identity documents be shown or relied upon.

[snip]

24. The Single Judge is likewise not persuaded that Aimé Kilolo’s withdrawal from his role as lead counsel for Jean-Pierre Bemba in the Main Case entails per se the severance of all of his ties to the latter’s vast network and hence to the concrete risk that resources be made available to him for the purpose of evading justice. The fact that “depuis le 6 décembre 2013, le requérant n’a plus de contacts privilégiés avec M. Bemba” (emphasis added) does not mean that the long-established relationship between Mr Bemba and Mr Kilolo by virtue of the latter’s role as lead counsel in the Main Case has ceased to exist. Contrary to what stated by the Defence the absence of documents witnessing to the existence of a “relation personnelle” between the two cannot be considered as mitigating or otherwise affecting this conclusion. Similarly, if it is true that assets pertaining to Mr Bemba and Mr Babala have been seized by way of implementation of the Chamber’s order, such assets obviously form but a small part of the assets which are or might be made available to the network as a whole, which comprises a number of individuals by far exceeding the suspects in this case.

Notice what the PTC is claiming here: Kilolo is part of Bemba’s “network” simply because he served as Bemba’s defence attorney. Kilolo is thus “inherently” a flight risk, despite not having been convicted of any crime — presumably the presumption of innocence still applies to the pending charges — because he has access to the vast resources of Bemba’s criminal organisation. In short: Bemba’s defence attorney is no different than Bemba’s henchmen and enforcers. He just plays a different role in Bemba’s organisation.

The PTC’s argument is disturbingly reminiscent of the post-9/11 demonisation of defence attorneys in the US who had the temerity to represent individuals accused of terrorism. Marc Thiessen, for example, (in)famously claimed that “[t]he habeas lawyers were not doing their constitutional duty to defend unpopular criminal defendants. They were using the federal courts as a tool to undermine our military’s ability to keep dangerous enemy combatants off the battlefield in a time of war.” Such despicable claims led to significant pushback from both progressives and (to their credit) many conservatives — and rightfully so. Yet now we witness the unseemly spectacle of an international judge engaging in precisely the same kind of demonisation.

Nor is that all. The PTC’s explanation of why Mangenda is likely to obstruct the OTP’s investigation is just as offensive (emphasis added):

As stated by the Prosecutor, Mangenda’s former role as case manager for Jean-Pierre Bemba entails that he is likely to know the identity of most of the potential witnesses; moreover, given the precise information disclosed to him, now he is even in a better position to obstruct or endanger the investigations. As regards the fact that the Prosecutor’s investigation is close to completion, it cannot be reasonably excluded that additional action might be taken, in respect of other evidentiary items which might still be outstanding, whether in relation to the Main Case or to these proceedings, in spite of the fact that some pieces of evidence are indeed in the possession of the Court or of the relevant national authorities and as such beyond the suspects’ reach.

Is it possible to imagine greater contempt for the role — absolutely critical, as any defence attorney knows — of a case manager? Of course Mangenda will obstruct the OTP’s investigation (now the presumption of innocence is jettisoned completely); after all, what member of Bemba’s “network” would be better placed to do so than his case manager, who has access to all kinds of insider information?

Again, the PTC’s contempt for the defence function is truly shocking. Unfortunately, it seems to be a pattern at the ICC — let’s not forget how the Court essentially abandoned and apologized for Melinda Taylor when Libya imprisoned her on the basis of truly ludicrous allegations. Defence attorneys and case managers, even those accused of serious crimes, deserve better.

Weekly News Wrap: Monday, April 28, 2014

by Jessica Dorsey

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

Africa

Asia

  • The US has signed a new 10-year defense agreement with the Philippines.
  • India successfully test-fired an anti-ballistic missile on Sunday capable of intercepting targets outside the earth’s atmosphere, a major step in development of a missile defense system that is available to only a handful of nations.

Europe

Middle East and Northern Africa

Americas

UN/Other

NETmundial, Borders in Cyberspace, and a Duty to Hack

by Duncan Hollis

Last week’s NETmundial conference serves as a reminder of just how much the nature of cyberspace remains (at least theoretically) undetermined.  We still can’t agree on what kind of resource cyberspace “is”:  Is it a global public good as Sir Tim Berners Lee proclaimed (i.e., a res communis) or just a collection of technology subject to sovereignty regulation like so many other resources?  This theoretical divide may help explain the continuing back and forth between multi-stakeholder governance (which includes, but does not privilege, a role for States) versus the multilateral governance project (which most certainly does).  NETmundial may have been a net plus for multi-stakeholder proponents, but I’m much less sanguine that it represents an end to claims that cyberspace can — and should — be regulated primarily by government controls over internet resources (for more on the details of NETmundial and its final statement see Milton Mueller’s take-away here).

My skepticism about how international law will draw borders for cyberspace governance leads me to think about other roles borders can play in cyberspace — that is, using international law to draw lines separating acceptable from unacceptable behavior, permitted conduct from required conduct, etc.  I’ve drafted a new chapter that, in the context of cyber war, examines both the ways we draw law from borders and borders from law in cyberspace.  I critique the status quo on both theoretical and functional grounds, concluding that we should seek to start a new process not just for constructing governance regimes, but normative ones as well.  Consistent with the book’s central focus on cyber war, I proffer a case-study for such an approach with respect to armed conflicts, arguing international humanitarian law should adopt a Duty to Hack.  My idea is that, even though it does so only occasionally now, international law should regularly require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives.  You can download a copy of the paper here on SSRN.

For those looking for more details, here’s the abstract:

Warfare and boundaries have a symbiotic relationship. Whether as its cause or effect, States historically used war to delineate the borders that divided them. Laws and borders have a similar relationship. Sometimes laws are the product of borders as when national boundaries delineate the reach of States’ authorities. But borders may also be the product of law; laws regularly draw lines between permitted and prohibited conduct or bound off required acts from permissible ones. Both logics are on display in debates over international law in cyberspace. Some characterize cyberspace as a unique, self-governing ‘space’ that requires its own borders and the drawing of tailor-made rules therein. For others, cyberspace is merely a technological medium that States can govern via traditional territorial borders with rules drawn ‘by analogy’ from pre-existing legal regimes.

This chapter critiques current formulations drawing law from boundaries and boundaries from law in cyberspace with respect to (a) its governance; (b) the use of force; and (c) international humanitarian law (IHL). In each area, I identify theoretical problems that exist in the absence of any uniform theory for why cyberspace needs boundaries. At the same time, I elaborate functional problems with existing boundary claims – particularly by analogy – in terms of their (i) accuracy, (ii) effectiveness and (iii) completeness. These prevailing difficulties on whether, where, and why borders are needed in cyberspace suggests the time is ripe for re-appraising the landscape.

This chapter seeks to launch such a re-thinking project by proposing a new rule of IHL – a Duty to Hack. The Duty to Hack would require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives. Thus, if a State can achieve the same military objective by bombing a factory or using a cyber-operation to take it off-line temporarily, the Duty to Hack requires that State to pursue the latter course. Although novel, I submit the Duty to Hack more accurately and effectively accounts for IHL’s fundamental principles and cyberspace’s unique attributes than existing efforts to foist legal boundaries upon State cyber-operations by analogy. Moreover, adopting the Duty to Hack could constitute a necessary first step to resolving the larger theoretical and functional challenges currently associated with law’s boundaries in cyberspace.

 

Events and Announcements: April 27, 2014

by Jessica Dorsey

Call for Proposals

  • Call for Proposals: “Differentiated integration inside and outside the EU: taking stock and charting the future.” Please send the proposals for the ECSA Conference of the Swiss, Austrian and German Branch to be held on 23/24 October 2014 at the University of Lausanne’s IDHEAP within the Facultyo of Law, Criminal Sciences and Administration to conference [at] ecsaswiss [dot] ch no later than June 15. The decision on the inclusion of the proposal in the Conference programme will be communicated no later than June 30, and the Conference Programme will be circulated at the latest during the month of September. The organizers retain the right of including in the programme invited speakers. The full call can be found here.

Events

  • The American Society of International Law’s International Economic Law Interest Group presents: What to Expect from the Trans-Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP) Agreements Thursday, May 8, 2014 5:30pm to 7:30pm at the American Society of International Law in Washington, DC. Registration information is here and the event is free for ASIL members with a $15.00 Registration fee for non-members. The Trans-Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP) Agreements currently are the most critical components of the United States’ trade agenda and negotiations. This timely event will survey the main interests at stake in these negotiations, what economic benefits the draft agreements are expected to deliver for the US and its trading partners, and what they mean for multilateral negotiations at the World Trade Organization (WTO). The briefing will also examine the US domestic political implications for entering into these agreements, including the likelihood of Congress passing a “fast track” authority. A reception will follow the discussion at 6.45 pm.
  • The Dickson Poon School of Law, King’s College London is proud to host this year’s ILA (British Branch) Spring Conference from 23 to 24 May2014. The organizers aim to shed new light on the following foundational questions: the relationship between international, regional and domestic legal orders; the identification and development of customary international law; and the regulation of armed conflict. The five parallel panel sessions will re-examinethe foundations of international lawin the light of new information and modes of thinking. In this respect, main goal of the organizers is to imagine possible futures in issues of concern to present and future generations, such as combatting climate change, preventing human trafficking, managing financial risk, encouraging businesses to respect human rights and promoting socially responsible investment. The Keynote speech will be delivered by Professor James Crawford at 10 am on 23 May 2014 (‘The identification and development of customary international law’) and after dinner speech by Professor Philip Allott the same day at Inner Temple (‘The Idealist’s Dilemma ). For more info on registration for the conference and the dinner, but also the full two-day programme are available here.
  • The Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law (SLS) welcomes applications for its Sixteenth Summer Session, “International Criminal Law at the First World War Centenary — From Consolidation Towards Confrontation?”, Sunday 3 to Friday 15 August 2014. The SLS is a two-week summer programme aimed at postgraduate students, young academics and practitioners. This year’s session will scrutinize principles and procedures of international criminal law, their origins and contemporary challenges to their enforcement. In this context, there will be a special thematic focus on the principle of irrelevance of official capacity under international customary law and the Rome Statute of the International Criminal Court (ICC) as well as on controversies stemming from the Court’s cases against sitting heads of States, proposed changes to the Rome Statute and policy considerations determining the selection of situations and cases. Other topics include the Kampala amendments to the Rome Statute, the rights of the defence in international criminal proceedings, the role of international investigation commissions, as well as recent decisions and judgements of the ICC and the ICTY. Further information on the academic programme and a preliminary list of speakers are available hereThe application period ends on Friday 9 May 2014. 
  • The 2014 Summer Program of Marco Polo-Zheng He Academy of International Oceans Law and Policy, P.R. China. The South China Sea Institute of Xiamen University, and Center for Polar and Deep Ocean Development of Shanghai Jiao Tong University, announce their annual summer program – Marco Polo- Zheng He Academy of International Oceans Law and Policy, to be held from June 22 – July 18, 2014. These centers are leading interdisciplinary research institutes in China in the area of Oceans Law and Policy. This is the 9th year of this summer academy which has been attended in past by the scholars, practitioners, diplomats, and students from -: Australia, Belgium, China, Colombia, Hong Kong, India, Indonesia, Iran, DPR Korea, Rep. of Korea, Malaysia, Russia, Singapore, Switzerland, Taiwan, U.S., and others. The four week intensive summer program is divided into two sessions to be held in Chinese cities of Xiamen and Shanghai. The participants have an option to attend either or both the sessions. The program offers a unique chance to learn about the Chinese perspectives on Law of the Sea and its policies. The structure of the program is such that the class lectures are held in morning sessions and in the afternoon sessions trips to Chinese courts, law firms, governmental agencies related to oceanic administration, museums, etc., are planned. Participants also have the option of taking tests and getting credits transferred to their own schools. Limited number of scholarships are offered to outstanding candidates upon application and subsequent review. Please find more information about Xiamen Session here and Shanghai Session here. For queries regarding-: Xiamen Session contact: zhangxia-fly [at] 163 [dot] com; Shanghai Session sjtu_colp [at] 163 [dot] com; for general queries contact: arpita [dot] goswami7 [at] gmail [dot] com.
  • The registration for the Third Annual Conference of the Cambridge Journal of International and Comparative Law (CJICL) is still open, and can be accessed here.
  • Registration is now also open for the conference ‘National Security and Public Health: Exceptions to Human Rights’ organised at IALS on 29th May 2014. For more information and to register, click here.
  • Universal Jurisdiction on the XXI Century Congress in Madrid. A 4-day International Congress on Universal Jurisdiction will take place in Madrid in May 20-23 2014 organized by Baltasar Garzon International Foundation (FIBGAR). During those 4 days, Madrid will host some of the best experts on Universal Jurisdiction to discuss its nature, extension, current situation and future as an instrument to fight against impunity and to protect Human Rights. Among the 50 lectures there are Baltasar Garzón, Benjamin Ferencz, Diego García-Sayán, Shirin Ebadi, Luis Moreno Ocampo, Fabricio Guariglia, Remo Carlotto, Michael Ratner, Raúl Zaaroni, Hugo Relva. Registration is now open!

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: April 19-25, 2014

by An Hertogen

This week on Opinio Juris, we teamed up with EJIL:Talk! to bring you a transatlantic symposium on Karen Alter’s book The New Terrain of International LawYou can find Karen’s introduction to her book here, followed by comments by Tonya Putnam, Roger Alford and Jacob Katz Cogan. Karen’s reply is here.

Other guests this week were Paula Gaeta who explained why she is not convinced by the ICC’s latest decision on President al-Bashir’s immunity from arrest, and Mike Ramsay who discussed Argentina v. NML Capital and the FISA.

Deborah commented on Steve Vladeck’s essay on post-AUMF detention and posted a surreply to his response over at Just Security

Peter looked at Courts’ involvement in foreign affairs following the US Supreme Court’s decision to accept the Jerusalem passport case on the merits.

Julian explained why in his opinion the Marshall Islands’ US complaint and ICJ applications against the world’s nuclear powers is not going to get very far.

Kristen argued that if we want more effective multilateral sanctions, we should examine not just the design of sanction regimes, but also their termination.

Finally, Jessica wrapped up the news and I listed events and announcements. To all our junior readers out there, there is now less than a week to enter an abstract for our second Emerging Voices symposium.

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

Detention Post-Gitmo II: A Surreply to Steve Vladeck

by Deborah Pearlstein

Thanks to Steve Vladeck for his thoughtful response to my critique of his paper posted earlier this week. In great sum, Steve has a paper out proposing that the United States hold the remaining Gitmo detainees in the United States under a domestic immigration detention statute to ease the way for Congress to repeal the AUMF statute (under which authority the Gitmo detainees are currently held). I advanced several legal and policy arguments against the proposal. Steve’s post yesterday is a response to my concerns. While I think my original post still speaks for itself, I did want to clarify a few points I think Steve’s characterization of my argument obscures.

First, Steve suggests that my argument assumes “that countries will be lining up to receive” the Gitmo detainees this administration has identified as unprosecutable but “too dangerous to release.” My claim was actually quite a bit different – namely, that it was likely that “at least a fraction” of the 4 dozen “too dangerous to release” detainees might be repatriated by their home countries if the United States sought to return them. It’s important to caution here that of course both Steve and I are laboring in the dark; the administration has not made public information about which 4 dozen detainees it thinks falls into this category or why. But let’s imagine for the sake of argument the number is only 1 of the 4 dozen who could be repatriated. Why does it matter to my concern about Steve’s proposal? To see that, let’s play the proposal out.

Here’s the scenario: Congress has lifted the statutory prohibition against the transfer of Gitmo detainees to the United States. (This move is a necessary precondition for Section 412 to apply at all – it kicks in only once aliens are in the United States.) The AUMF is repealed. In order for Section 412 to apply at all, the administration will have to institute removal proceedings for all the detainees to have any lawful basis for continued detention of any of them. Under current policy as I understand it, all detained immigration removal proceedings (i.e. removal proceedings carried out while the potential deportee is in custody) are to be expedited, meaning an initial appearance 2-3 weeks after the beginning of immigration detention. Now imagine Detainee X (of the 48) concedes his removability, for example, by admitting yes indeed I endorsed/espoused whatever Al Qaeda said. Let’s further imagine his home country says (for a variety of reasons), “Sure, we’ll take him back, here are diplomatic assurances he won’t be tortured.” Section 412 proceedings are now over; they’ve taken about a month. The U.S. government now has no further legal basis for continuing to hold Detainee X. He is able to be deported, and Section 412 detention authority lasts only until this deportability condition has been met. This is the case even if Detainee X’s home country is politically unstable, and has made no promises about continuing to detain him there or about taking any other security measures. It is conceivable Congress could amend Section 412 further to authorize preventive detention under more conditions than just deportation; but this is a broader preventive detention statute than Congress has been willing to authorize in the 13 years post-2001, and it would pose novel and serious constitutional questions about an expansion of immigration detention authority outside of armed conflict that the Supreme Court has never upheld. As it stands then – and given the administration has said Detainee X is too dangerous to release anywhere – my point was that it is hard to imagine that the rapid release of Detainee X – even a release overseas – is an outcome this administration (or any administration) in good faith wants to seek.

Second, Steve accuses me of having offered no better alternative than the status quo. To that I plead more or less guilty. My original post actually offered no alternative proposal at all, it merely suggested we evaluate Steve’s proposal by considering whether his option is “better than, for example, letting the detainees litigate claims that existing AUMF detention authority runs out at the end of relevant hostilities.” For reasons I stated before, I continue to think Steve’s option isn’t clearly better than the currently existing alternative. But I also think it fares worse when compared to other alternatives (not just the status quo) one can imagine.

Suppose, for example, the AUMF stays on the books for now, and the administration finally succeeds in persuading the Congress to do the one thing it has tried to do from the beginning: allow the Gitmo detainees to be transferred to a detention facility here in the United States. As heavy political lift as that is (impossible so far, and especially hard to imagine now in the 6 months before midterm elections), it is still presumably easier to accomplish than moving them here and also repealing the AUMF. On the upside of this scenario, Gitmo is closed – no small matter itself. From that, we may hope to glean some modest diplomatic benefit from taking a key step forward, some modest strategic benefit from the removal of a uniquely destructive symbol, and some increase in domestic political urgency to return those many dozens of detainees who have long since been cleared for release.

Downsides of course, (1) there are still dozens of men in long-term detention and (2) the AUMF is still (for now) on the books. Take each in turn. For the detainees, conventional wisdom holds (with good reason) that their conditions of confinement would be quite a bit worse in standard domestic federal Supermax prisons than they are at Gitmo currently. But with the AUMF still on the books, there would be Geneva-based arguments about what conditions their continued detention (by the Defense Department) must satisfy. We’d still have a president motivated– and working – to get the majority sent home, with processes extant (an administrative review system, along with repeated habeas petitions) to check that progress (at least marginally). We’d also I think have growing pressure from the courts (no matter who’s president); the more time passes, the stronger the argument becomes (depending arguably some on the detainee) that hostilities are over and the AUMF no longer authorizes their detention. (And Section 412 remains as the kind of limited backstop it was intended to be if the courts do conclude the AUMF no longer applies in a particular case.) In short, for the detainees themselves, we’d be essentially where we are now – and arguably better than where we would be under the Section 412 theory in which they are held in federal civilian custody – with some of them in long-term detention subject to best efforts and increasing pressure to send them home.

That leaves the continued existence of the AUMF. As much as I embrace the President’s call to move to a post-war counterterrorism framework, I am not at all sure the significant legal and policy costs associated with Steve’s proposal (some I’ve identified, some Steve himself has) will change enough about U.S. policy in the coming two years to be worth it. Under the current administration, the use of the AUMF as a source of detention authority has diminished dramatically. It has been used for detention outside of Afghanistan on a tiny handful of occasions and for limited time periods before criminal prosecution. (The success of the criminal system in handling these cases, coupled with the absence of an off-shore facility in which to house detainees, will make future use of the statute for detention purposes trickier for any future administration as well.) The greater issue with the AUMF’s continued existence is I think targeting; it remains as a literal loaded gun for use against “associated forces” of our enemies (whomever and wherever they may be). Here, too, we have seen a significant drop in the frequency of U.S. drone attacks over the past year or so, as the security community itself has started to recognize the tremendous political, diplomatic, and strategic counterterrorism costs associated with the heavy use of lethal targeting outside Afghanistan. More important, the key concerns about the AUMF center not on the existence of targeting authority per se (no one denies it is sometimes permissible for states to use force in other states), but on how and against whom it is used. Amending the AUMF to impose or clarify limits on the scope of the targeting authority permitted under that statute going forward could in principle address these significant concerns – while avoiding creating new statutory and constitutional dilemmas to resolve. Such amendments, too, would involve a very tough legislative lift – but still I imagine an easier one than would be required to secure not only the necessary amendments to Section 412 noted above, but also flat-out repeal of the AUMF.

Alter Book Symposium: Reply by Karen Alter

by Karen J. Alter

[Karen J Alter is Professor of Political Science and Law at Northwestern University and co-direcor at iCourts Center of Excellence at the Copenhagen University Faculty of Law.]

Thanks so much to Tonya Putnam, Roger Alford, and Jacob Katz Cogan for their thoughtful commentaries.  I appreciate their kind words, and their comments reflect one of my hopes for this book; that it will be a springboard for researching new and important questions about international courts and international law.

I want to respond while echoing some of the questions they raise.

My starting point for The New Terrain of International Law was the following question:  If the ‘problem’ of international law is its lack of enforceability, then how does making the law enforceable affect the influence of international law?

I cut into this very big question by focusing on a new set of institutions that were designed to address the enforceability gap in international law.  The comments in this symposium push upon a number of choices I made as I then tried to make the project tractable.

My first choice was to focus on the universe of permanent international courts, co-opting the definition of an IC created by the Project on International Courts and Tribunals (PICT). Alford’s commentary openly worries that others will follow me in focusing on PICT courts.

I share this concern, which is why I discuss the limits of relying on PICT’s definition (p.70-77). For me, the most arbitrary part of the definition is its focus on permanent ICs. I decided to nonetheless catalogue permanent ICs because sticking to a plausible definition ensured that I was examining like institutions.

Another related question I sometimes get is why I include ICs that exist but have no cases. This is where the benefits of PICT’s definition arise.  We can see from my universe that permanence is neither necessary nor sufficient for IC effectiveness, and we can start to examine why like institutions have varied impact.  This is a topic that Laurence Helfer and I have pursued through our in depth research on the Andean Court and on Africa’s ICs.

I am already moving beyond PICT’s definition, as should we all. The New Terrain of International Law demonstrates the arbitrariness of focusing on permanent ICs by including as case-studies non-permanent bodies. The NAFTA case study, for example, discusses how the “permanent” WTO system proved no more able than the NAFTA system to address complaints about illegal US countervailing duties. The Chapter 5 discussion of the ICJ’s role in the Bahrain-Qatar dispute, and the same court’s ineffectiveness in resolving US-Iranian disputes, shows again that being a permanent IC, with preappointed judges and the jurisdiction to issue binding rulings, still does not necessarily improve IC effectiveness.

Another step in moving beyond PICT’s definition is that Chapter 1 of the new Oxford Handbook on International Adjudication, which I co-authored with the author of PICT’s definition, Cesare Romano, excludes permanence from the definition of “adjudicatory bodies.”

A second choice was to use structured case studies as the mode of investigating how the existence of an IC contributes (or not) to changes in state behavior in the direction indicated by the law.  Nico Krisch addresses indirectly my case-study choice in his reply on EJIL:Talk! Continue Reading…

Emerging Voices Deadline Approaching!

by An Hertogen

To all doctoral students and early career academics or professionals who would like to contribute to our blog in July or August, remember that applications for our second Emerging Voices symposium are still open until May 1. We’d love to hear from you!

More information is here.

For More Effective Sanctions, Time to Examine Question of Termination

by Kristen Boon

Over the last two decades, the key policy question surrounding multilateral sanctions has been effectiveness. Because of studies that suggest that sanctions are effective only about one-third of the time, there has been a concerted effort to develop so-called “smart sanctions,” which increase the effectiveness of Security Council sanctions at the front end by targeting specific groups, individuals, and entities. See, for example, reports here and here that detail the shift away from comprehensive sanctions towards targeted sanctions on the basis of effectiveness.

The emphasis on targeting at the front end, however, has overshadowed an important back-end question that is equally important to effectiveness: termination. This policy lacuna is significant because, once imposed, sanctions tend to stick. Indeed, my research shows that Security Council sanctions tend to last considerably longer than sanctions imposed by regional organizations, and that shorter sanctions episodes are often more effective. In other words, sanctions of long duration may detract from their effectiveness.

Since the end of the Cold War, sanctions have emerged as one of the Security Council’s primary tools for conflict management. Over this period, the objectives of Security Council sanctions have become increasingly ambitious. Although the measures of targeted sanctions are today quite standard, and usually include an arms embargo, asset freeze, and commodity sanctions, the objectives to which those measures are applied can be wide ranging. For example, the objectives of ongoing sanctions today include ending recruitment and targeting of women and children in conflict situations; the protection of civilians; the observance of human rights and international humanitarian law; and longer-term reform of national institutions such as the police, the security sector, and the justice system.

This new generation of sanctions, with their broad goals and transformative objectives, requires new thinking about termination policies. At present, the termination of sanctions is approached in one of three ways: a defined sunset clause, a commitment to review, or an indefinite term. There is no standard policy with regard to which model is used when, although the pattern that has emerged is that sunset clauses of 12–18 months are used in conflict management situations, whereas indefinite sanctions are more likely to be applied where the focus is international security, terrorism, and non-proliferation.

The choice between time-bound or indefinite sanctions is a political one. In 2004, David Cortright and George Lopez reported that time limits were a divisive issue for the Chowdhury working group (an informal working group on Security Council reform), finding that some nations vigorously opposed them, while others wanted to maintain indefinite pressure on recalcitrant regimes.

Clear termination policies are relevant to sanctions’ effectiveness for two reasons. First, targeted sanctions that contain clear objectives can shorten conflict cycles. Because sanctions work best as a means of persuasion and not punishment, a powerful inducement is to provide incentives for compliance with criteria for lifting sanctions. Clear termination policies aid in this goal. Second, shorter sanctions should be encouraged. The incentive to comply will be strongest when narrow, and decisive, sanctions are imposed and carefully managed, in comparison to measures that languish without effecting a change in behavior.

In Sudan, for example, there is a general consensus that the sanctions imposed under Resolution 1591 in 2005 have stalled. There have been no new listings since 2006; no consensus on harmonizing the existing sanctions with a parallel ICC investigation; and little evidence that the sanctions have aided the victims of the ongoing conflict. It is time to consider a sunset clause: wind down these sanctions that are widely viewed as ineffective, and turn to a different method of diplomacy, coercion, conflict management, or even a new and refined set of sanctions.

A related issue is the duration of particular measures under an existing sanctions regime. Refocusing sanctions to better manage the timeline of particular measures would improve effectiveness. For example, does the ongoing arms embargo against al-Qaeda make sense when the real threat appears to be coming from regional spin-off groups? In comparison, efforts to impose narrowly targeted sanctions against al-Shabaab in the Somalia/Eritrea regime or Yemeni al-Qaeda affiliates under the Yemen sanctions are a step in the right direction.

The availability of an internal review process, such as the UN Ombudsperson’s Office, which has the power to consider de-listing requests from those under the al-Qaeda regime, will be relevant to which termination policy is chosen. Although I argue that the default should be short and managed sanctions cycles with defined sunset clauses, an ongoing review process where individuals and entities can bring de-listing claims and are afforded due process protections could justify open-ended sanctions or sanctions subject to review.

Criteria for the termination of sanctions regimes are as essential to the effectiveness of sanctions as intelligent sanctions design. While it is recognized that better targeting may help to shorten conflict phases, the relationship between well defined goals, incentives to encourage compliance, and terminating sanctions regimes has been overlooked. When the objectives of a sanctions regime are met, the sanctions should be amended, repealed, or terminated as soon as possible. This can be achieved through a renewed debate over the policies on sanctions termination and the start of a new dialogue about the best practices of termination.

Want to read more?  Please see my new IPI report entitled Terminating Security Council Sanctions.  This article was first published on the Global Observatory.

 

Marshall Islands Sues to Enforce Nuclear Non Proliferation Treaty; UK May Be Dragged Into ICJ

by Julian Ku

This lawsuit is mostly just grandstanding by a very small nation with the help of a savvy (but sloppy) US law firm.  But there is one possibly meaningful outcome.  It could result in an ICJ proceeding involving the United Kingdom.

The tiny Pacific nation of the Marshall Islands is taking on the United States and the world’s eight other nuclear-armed nations with an unprecedented lawsuit demanding that they meet their obligations toward disarmament and accusing them of “flagrant violations” of international law.

The island group that was used for dozens of U.S. nuclear tests after World War II was filing suit Thursday against each of the nine countries in the International Court of Justice in The Hague, Netherlands. It also was filing a federal lawsuit against the United States in San Francisco, naming President Barack Obama, the departments and secretaries of defense and energy and the National Nuclear Security Administration.

Reviewing the complaint and the ICJ applications, I conclude these cases are (mostly) going nowhere.

As for the U.S. complaint, the Marshall Islands is suing both the United States itself, and its President, and various military and civilian departments.  As an initial matter, there should be grave doubts about whether the NPT is self-executing. It is hard to imagine that it is.  And there are some grave doubts as to whether the U.S. has waived its sovereign immunity for this kind of claim in its own courts. And there are a variety of other problems: standing? political question? justiciability? that will no doubt make themselves felt here.

With respect to the ICJ applications, none of the target countries have accepted ICJ compulsory jurisdiction except the UK.  Indeed, the ICJ application against China mistakenly refers to it as the “Republic of China”, which is the name of the government in Taiwan, not China. I think Taiwan would be thrilled to be sued here, since they are not even allowed to join the ICJ or the U.N.  The China they want is the “People’s Republic”.

Putting both Chinas aside, the key here is that the UK has accepted compulsory jurisdiction of the ICJ, so this might require the UK to litigate this.  This seems like the one aspect of this case that might come to a real judicial outcome.

So if we get to the merits, I am deeply dubious.   What exactly is the “obligation to negotiate in good faith”? How can you ever tell if it has been violated?  The affidavit by Prof. Weston of the University of Iowa gives some content to this idea, but I don’t find it very persuasive.  

My basic thought is that this case is going nowhere, but will get some attention of the UK is forced to show up at the Hague and argue the merits.  Only then will we get to see if Prof. Weston’s idea tested by the ICJ.

Guest Post: Argentina v. NML Capital – Does the Foreign Sovereign Immunities Act Mean More Than It Says?

by Michael Ramsey

[Michael D. Ramsey is the Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego Law School. Professor Ramsey previously prepared an analysis of this case for the Judicial Education Project, for which he was compensated.]

The Supreme Court considered on Monday whether a U.S. court can order disclosure of Argentina’s worldwide assets.  Perhaps surprisingly, the answer should be yes.

The underlying facts of Republic of Argentina v. NML Capital are straightforward.  Argentina issued bonds, which were bought by private investors including NML, and then defaulted.  In the bond contracts, Argentina waived its sovereign immunity and consented to jurisdiction in New York.  After the default, NML sued Argentina in New York, as the bond contracts contemplated.

The Foreign Sovereign Immunities Act (FSIA) says that foreign governments can be sued in the U.S. only in circumstances listed in the statute.  One of those circumstances is when the sovereign waives its immunity by contract.  So there’s no question that NML could sue Argentina.

The question, rather, is what NML could do once it won (as it did) and Argentina still refused to pay (as it did).  The FSIA also says that creditors cannot execute on (seize) foreign sovereign assets in the United States to satisfy a judgment unless the assets are being used in a commercial capacity.  NML asked the trial court to order two New York banks that handle Argentina’s finances to disclose what they knew about Argentina’s assets (commercial or otherwise).  Argentina, supported by the U.S. executive branch, claims this violates the “spirit” of the FSIA.

It doesn’t.  The FSIA (Section 1609) specifically protects non-commercial sovereign assets only against “arrest attachment and execution.”  It does not say assets are immune from disclosure.  There’s a good reason it doesn’t: to figure out which assets are used for commercial purposes, and thus subject to execution, first one needs to know what assets exist.  It obviously won’t do to have Argentina – or Argentina’s bankers – make an unreviewable judgment as to which assets are commercial and not disclose the others.  And in other respects, the FSIA (Section 1606) says, a non-immune sovereign shall (subject to exceptions not relevant here) “be liable in the same manner and to the same extent as a private individual under like circumstances.”

Thus, as a number of Justices appeared to recognize at oral argument, the key law isn’t the FSIA but Rule 69 of the Federal Rules of Civil Procedure, which govern ordinary litigation in federal court.  Rule 69 allows a federal court to order discovery in support of execution, which is what the trial judge did here.  The rule doesn’t have any limits on the type of property or the geographic limits – rather, its leaves the matter to the discretion of the court.  In private litigation, courts acting under Rule 69 routinely require disclosure of assets outside the jurisdiction or arguably not subject to execution.

At oral argument, some Justices seemed troubled that Argentina (or other sovereigns) might have to disclose the location of sensitive diplomatic or military assets.  It’s a fair concern, but no reason to make the FSIA say something it clearly does not.  First, district courts are adept at balancing all sorts of competing interests that arise in discovery disputes and in allowing only discovery appropriate under the circumstances; Rule 69 gives them plenty of discretion to do so.  Second, the only disclosures the trial court required here are of financial transactions (and the order isn’t even directed to Argentina, but rather to third-party banks); no one is asking Argentina to disclose the location of, for example, specific military assets.  And third, presumably disclosures could be made confidentially to the court as needed for particular assets.

Moreover, NML claims that Argentina has shown its willingness to abuse institutions like the Bank of International Settlements to shield its assets from creditor judgments.  That’s what NML’s attorney Ted Olson was speaking of when he said at one point during Monday’s proceeding that Argentina could slap an air-force label on a commercial airplane in order to shield that asset.  He wasn’t talking about NML attaching non-executable assets, he was simply pointing out the danger of creating loopholes in the discovery process that would allow Argentina to deny discovery on assets that creditors would be entitled to.

This goes to the heart of why NML has a need for the disclosures.  Argentina has openly refused to pay the judgment against it.  NML is entitled to execute on Argentina’s commercial assets in the United States, and may be able to execute on some non-commercial assets elsewhere (in jurisdictions that lack the U.S.’s commercial limit).  To do so, it needs to know what assets exist, and it cannot rely on Argentina’s self-reporting of which assets are commercial.

Ultimately the rule of law, especially in international transactions, depends on courts holding parties to their promises and providing a way to enforce judgments.  If Argentina didn’t want to be subject to U.S. court enforcement, then it should not have waived its immunity and consented to jurisdiction (but, of course, then it would have had much more difficulty selling its bonds).  Argentina could still avoid unwanted disclosures by doing what it is supposed to do anyway: pay the entirely valid judgment against it.

The rule of law also depends on courts reading statutes to mean what they say, and not more than they say.  Argentina is asking the Court to find an immunity in the FSIA that simply isn’t there.  Argentina’s protection instead comes from Rule 69 – but it’s a protection that rests largely with the lower court, which knows the case better and is better able to balance competing equities on an on-going basis than the Supreme Court.  It may be helpful for the Court to ask district courts to use careful discretion in managing disclosure requests directed at a foreign sovereign under Rule 69. For instance, the Justices could recommend that district court judges ask the sovereign to create a privilege log (or a similar mechanism) for those assets, such as military property, that are extra-sensitive. This would balance the interests of the sovereign and the creditors. But creating a blanket protection against disclosure of assets under the FSIA is contrary to both the statute and the needs of the international rule of law.

Alter Book Symposium: Comment by Jacob Katz Cogan

by Jacob Katz Cogan

[Jacob Katz Cogan is the Judge Joseph P. Kinneary Professor of Law at the University of Cincinatti College of Law]

At the beginning of the fourth chapter of her new book The New Terrain of International Law: Courts, Politics, Rights, Karen Alter asks: “why [are] there . . . more international courts today than at any point in history”? (112). It is an interesting and important question. Seeking to “provide[] a partial explanation for the trends” in the proliferation during the past twenty-five years of the “new-style international courts” (which she documents in the preceding chapter), Professor Alter reviews “World History and the Evolving International Judiciary” (112). She argues, in short, that “at the end of World War II governments were able to reject proposals for compulsory international judicial oversight of their behavior” (112). Even so, “[c]hanges in legal practice in the United States and Europe during and after the Cold War meant that foreign legal and quasi-legal bodies increasingly adjudicated allegations of economic and human rights violations abroad” (112). Thus, “[g]iven the choice of European and American judicial review or international judicial review, many governments preferred [the latter] especially because international initiatives . . . created added incentives for governments to show progress toward democracy and human rights protection by embracing binding rules and international legal oversight” (113).

To make this argument, Professor Alter begins by dividing up the past hundred-plus years into three “critical junctures”: the Hague Peace Conferences, the end of World War II, and the end of the Cold War. She focuses in particular on the last two periods, taking each in turn. Her review of those eras recalls global as well as regional initiatives – the latter divided into (Western) Europe, Latin America, Africa, and Asia and the Middle East – recounting the successful, if uneven and oftentimes halting, establishment of international courts. Her story does not only turn on critical junctures, though. She recognizes that “between international legislative moments [i.e., the establishment of courts], lawyers and judges are adjudicating cases within the legal frameworks they have, and international secretariats are working with judges, advocates, and governments to adjust existing systems so as to address known problems” (117).

Based on this “whirlwind historical account” (159), Professor Alter “extracts . . . five general political factors that make governments more willing to consent to international judicial oversight” (154). First, she posits that “a distrust in government is the key impetus behind the political support of international judicial oversight” (154). In this regard, “[g]overnments only sign on [to courts] . . . once their legitimating suggestions of other options ring too hollow [to their populations] to be convincing” (154). Resort to courts, thus, is a function of “disenchantment with domestic checks and balances” (154-55). Second, “global initiatives have aided the implantation of international law in domestic legal systems, and thus facilitated the spread of embedded approach to international law enforcement” (155). Those initiatives – including the Washington Consensus, Convention Against Torture, the Rome Statute of the International Criminal Court, and the UN’s Millennium Development Goals – have pushed states to reform their domestic systems. Third, “the overlapping nature of national, regional, and international jurisdiction propels advancements at each level” (155). Thus, failures or successes in one part of the international system have repercussions elsewhere. Fourth, the “legal and political dynamics interact to produce institutional change between conjunctural moments” (156). Fifth, “the United States (and Europe) facilitate the spread of international law and international adjudication when leaders articulate, accept, and respond to legalist arguments” (157). Though Professor Alter seeks to draw out these factors and establish connections between “political forces” / “global forces” and the establishment of regional and global tribunals, she recognizes at the very conclusion of her discussion that “international judicial systems evolve slowly over time, propelled by conjunctural events and shifting legal practice” (160).

Like many social scientists, Professor Alter’s “history” is a search for principles or factors that explain why and when certain phenomena occur. Continue Reading…

Alter Book Symposium: Welcome to the New World of Comparative International Courts

by Roger Alford

Let me join others in heaping praise on Karen Alter’s new book. It marks a growing trend of studying international law from an institutional rather than substantive perspective. My favorite aspect of the book is the lateral thinking that occurs when one examines international tribunals across disciplines. International law scholars typically labor in their own vineyards, missing opportunities for grafting new vines onto old roots. Alter steps back and examines world history from the perspective of new international courts and tribunals. It is a welcome addition.

Her book is a voice for the younger generation, who did not grow up studying international law “during the Cold War when power politics mattered more than law, and when most international legal institutions were virtual entities that barely met and rarely said anything of political or legal consequence.” (p. xix). A younger generation of scholars embraces the cornucopia of international tribunals in all their variety, and will soon treat international dispute resolution as a separate and distinct transubstantive body of international law. We are moving in that direction with the development of the emerging field of global administrative law. But future decades will witness a greater emphasis on procedural rather than substantive international law, and comparative international courts will be a new specialty. Today it is rare to take a course entitled “International Courts and Tribunals.” Today we do not compare across international courts questions such as jurisdiction, standing, evidence, judicial selection, remedies, and enforcement of judgments. Future generations will. The New Terrain of International Law is a major contribution in that direction.

Of course, there are problems with Alter’s book. Her choice of tribunals borrows from the Project on International Courts and Tribunals’ typology, which excludes international tribunals that are not permanent. She concedes that excluding temporary international tribunals is rather arbitrary, (p. 76), but nonetheless limits her typology to only twenty-four permanent international tribunals. Given the magnitude of the task set before her, this is understandable. But I fear that her work will continue an ill-advised trend of excluding tribunals that are not permanent. Rather than including permanency as a threshold requirement, it is far preferable to address it as a variable, similar to geographic reach or private initiation of disputes. Many temporary international courts are simply too important to ignore. Just as any historical analysis would never exclude the temporary tribunals such as the Jay Commission, the Alabama Commission, the PCIJ, or the Nuremberg or Tokyo Tribunals, one should never claim that a comprehensive study of modern courts and tribunals is complete without including tribunals such as the Iran-United States Claims Tribunal, the United Nations Compensation Commission, the Eritrea-Ethiopia Claims Commission, or the Special Court for Sierra Leone. Excluding such tribunals, but then including other temporary tribunals (the ICTY and the ICTR) as well as relatively insignificant permanent tribunals such as ECCIS, EFTAC, and WAEMU only underscores the arbitrary nature of PICT’s and Alter’s typology. Even her case studies belie the problem, for she studies several of the temporary tribunals in her case studies, but then she does not include those same tribunals in her typology.

As an expert on international investment arbitration, let me also address another fundamental mistake in the book. Alter identifies ICSID arbitral bodies as administrative tribunals. She justifies this because the “investor dispute system can give rise to costly litigation and awards, to the point that litigation threats by investors can have a chilling effect on the local regulatory politics.” (p. 202). She suggests that ICSID tribunals function in a “morphed and perhaps unintended administrative review role.” (p. 211). All of this is correct, but it is purely incidental. At their core investment tribunals are focused on the economic consequences of state action. In reality, ICSID tribunals function as international economic courts akin to the WTO. Like other international economic courts, the subject matter of investment arbitration is limited to economic issues such as trade, foreign investment regulation, contract disputes, intellectual property rights, and business law (p. 85). The basic template of an ICSID tribunal is distinct from both the WTO and ECJ models discussed in the book (p. 90), allowing private initiation of disputes before supranational courts without a preliminary ruling mechanism. But an ICSID tribunal is no more of an administrative review court than the ECJ or the WTO, which as she notes, also function as systems of administrative and constitutional review challenging community acts in front of supranational courts (p. 90). In my view it is better to categorize international tribunals based on their core objectives rather than their incidental effects.

Karen Alter deserves hearty congratulations for her excellent work. If you read the book, you will be introduced to an increasingly important field of international law. You will be ushered into the new world of comparative international courts.

Guest Post: The ICC Changes Its Mind on the Immunity from Arrest of President Al Bashir, But It Is Wrong Again

by Paola Gaeta

[Paola Gaeta is a Professor at the Law Faculty of the University of Geneva, Adjunct Professor, Graduate Institute of International and Development Studies and the Director of Geneva Academy of International Humanitarian Law and Human Rights.]

On 9th April, Pre-Trial Chamber II of the International Criminal Court (‘the ICC’ or ‘the Court’) issued another decision concerning the lack of compliance by a State party with its request to arrest and surrender Sudanese President Al Bashir. The decision thus adds to others on the same matter and all involving African member States of the ICC. This time the State concerned is the Democratic Republic of Congo (‘DRC’), which did not arrest President Al Bashir during an official visit to the country and despite a specific request to that effect by the Court.

The DRC argued, among other things, that it was not obliged to execute the request for arrest and surrender of Al Bashir on the basis of Article 98 (1) of the Rome Statute. This provision provides that the Court may not proceed with a request of cooperation or assistance whenever the requested State, in order to execute such a request, would have to breach –with respect to a third State—its international legal undertakings in the area of immunities, including personal immunities. In such cases, the Court may issue a request for assistance or co-operation to a member State only after obtaining a waiver of the relevant immunities from the third State concerned. Since the Court had not obtained the waiver of immunities, the DRC contended that it was not obliged to comply with the request of the Court.

The Pre-Trial Chamber rejected this argument. Surprisingly, it did not do so by referring to the two decisions of 2011 (against Malawi and Chad, respectively) that had already tackled the matter. Not at all: the Pre-Trial Chamber did not dedicate one word to this case law, as if these two decisions were never delivered. True, the Court is not bound by its own decisions, as Article 21(2) of the Rome Statute makes clear in providing that the Court ‘may apply principles and rules of law as interpreted in its previous decisions’. Nevertheless, this provision certainly does not mean that the Court can change its jurisprudence without even clarifying the reasons why. This is particularly true when the criminal responsibility of an individual accused of very serious international crimes is at stake. But it is also true with respect to a highly sensitive issue such as that of immunities of Al Bashir as head of State of a State not party to the Rome Statute, and the more so in light of the stand taken by the African Union on that matter on multiple occasions. The highly political tension between the African Union and the Court on this and other matters is far from being settled and the jurisprudence of the Court, which is not impeccable, certainly won’t help to alleviate it.

I do not want to say that the 2011 Pre-Trial Chamber decisions on the question of immunities of Al Bashir were convincing. Quite the contrary:  as correctly emphasized by Dapo Akande in a post on EJIL Talk! those decisions adopted a stand which made Article 98 (1) of the Rome Statute redundant, something which is ‘contrary to a basic principle of treaty interpretation’.

Unfortunately, this last of Pre-Trial Chamber II is not more convincing than those issued in 2011. This decision correctly recognizes that Article 98 (1) of the Statute directs the Court to secure the cooperation of a State not party to the Rome Statute for the waiver or lifting of the immunity of its Head of State. This in order to prevent ‘the requested State from acting inconsistently with its international obligations towards the non-State party with respect to the immunities attached to the latter’s Head of State’. However, according to the Chamber, the Court does not need to obtain the cooperation of Sudan to remove the immunities of Al Bashir. This is so because the Security Council, in obliging Sudan to cooperate fully with and provide any necessary assistance to the Court and the Prosecutor’, eliminated ‘any impediment to the proceedings before the Court, including the lifting of immunities’. For the Chamber, any other interpretation would be ‘senseless’. The Chamber thus concludes that the requirement under Article 98(1) of the Statute was already ensured by the relevant Security Council’s Resolution, by virtue of which it ‘implicitly waived the immunities granted to Omar Al Bashir under international law’. Consequently, for the Chamber the DRC was obliged under the Rome Statute to arrest and surrender Al Bashir, which it failed to do and hence violated its obligations as a State party to the Rome Statute.

It appears clear to me that the reasoning followed by the Pre-Trial Chamber is based on a wrong interpretation of Article 98(1) of the Rome Statute. This provision is not concerned with whether a State that is not party to the Rome Statute is obliged to cooperate with the Court. Article 98(1) says that the Court may not proceed with requests of cooperation which would put the requested State in the position to act inconsistently with its obligations on immunities vis-à-vis third States ‘unless the Court can first obtain the cooperation of that third State for the waiver of immunity’ (emphasis added). The question here is not the existence of a legal obligation upon the third State to cooperate, but the actual cooperation that the Court must obtain from the third State to waive the immunity.

In addition, I do not see how the obligation of cooperation imposed on Sudan by the Security Council can modify the powers and competence of the Court, including the powers of the Court vis-à-vis member States in the matter of judicial cooperation. The Court is an international organization, created by a treaty and exercising, as all international organizations, the powers and competences attributed to it by its member States. The obligations set forth by the Security Council upon a UN member State with a binding decision under Chapter VII of the UN Charter cannot affect the rights and powers of another international organization, in this case the ICC, as they are regulated in the respective constitutive instrument of such other international organization. The decision of the Security Council on the obligation of Sudan to cooperate cannot relieve the Court from the necessity to implement a requirement for the correct exercise of a power as it is the case of Article 98 (1) of the Rome Statute.  The Court has not obtained the cooperation of Sudan for the waiver of immunity of Al Bashir, as Article 98 (1) provides. To the best of my knowledge, the Court has not even attempted to obtain from Sudan such a waiver. The fact that Sudan would be legally obliged to comply with such a request – should the Court decide to submit one to Sudan – does not imply that the terms of Article 98 (1) are respected, should Sudan refuse to provide the waiver of immunities.

Finally, I do not understand how the Pre-Trial Chamber could claim that the obligation of Sudan to cooperate with the Court, by virtue of the relevant resolution of the Security Council, would be ‘senseless’ if not interpreted as implying the waiver of immunities of the Head of State of Sudan. The fact that Sudan is obliged to cooperate with the Court is not deprived of sense if one recognizes that its head of State is protected by immunities under international law in the territory of foreign states.  After all, extradition treaties are not deprived of sense simply because, as the ICJ has clarified, a state may not even circulate internationally an arrest warrant against a foreign sitting head of state or government, or ministers for foreign affairs.

Commentators who have argued that the Security Council’s decision has a bearing on the matter of immunities have been not so naïve to claim that the inapplicability of Article 98(1) of the Rome Statute stems from the obligation of Sudan to cooperate with the Court. They have been much more sophisticated than the Pre-Trial Chamber. For instance, in a paper published in the JICJ, Dapo Akande argues that whenever the Security Council triggers the jurisdiction of the Court (as in the case of Darfur, Sudan), States that are not members of the Rome Statute become bound by the latter since the referral by the Security Council ‘is a decision to confer jurisdiction on the Court (in circumstances where such jurisdiction may otherwise not exist)’. Therefore Sudan, and other non-member States of the ICC, would be obliged to accept that the Court exercises its jurisdiction in accordance with the Statute. Sudan would therefore be obliged by Article 27(2) of the Rome Statute, and its State officials would not be entitled to personal immunities before national jurisdictions that could therefore arrest and surrender incriminated officials to the ICC to comply with its request.

I do not find this argument convincing. I contend that the referral of a situation to the Court by the Security Council constitutes just one of the conditions for the exercise by the Court of its criminal jurisdiction, and does not constitute the source of the jurisdiction of the Court. This applies also when the Security Council refers to the Court a situation where the crimes are committed in the territory or by a national of a state not party to the Rome Statute. This is however not the point here. The point is that the Court cannot take the luxury of changing its mind on a sensitive issue such as that of the immunities of Al Bashir without even saying why; and in addition to issuing another unconvincing decision on the matter.

I have personally no sympathy for President Al Bashir. I do hope, as many do, that sooner or later he will be brought before the Court, or at least induced to surrender, to respond to the serious allegations brought against him. I do not believe, however, that the Court is making justice to international law by delivering decisions that, at least with respect to issue of the obligation of States parties to arrest Al Bashir, are, with all due respect, frankly wrong.

Alter Book Symposium: Comment by Tonya L. Putnam

by Tonya L. Putnam

[Tonya L. Putnam is an Assistant Professor at the Department of Political Science at Columbia University]

I’m very pleased to have been asked to contribute my thoughts on Karen Alter’s The New Terrain of International Law. Alter’s cogently argued new book exemplifies what well-executed interdisciplinary scholarship can achieve. It puts into productive dialogue several core preoccupations of political scientists, international lawyers, and practitioners as they relate to the growing universe of international courts (ICs). Not only does the resulting analysis map the outputs of, and relationships between intensively studied ICs like the ECJ, the ECtHR, and the WTO panel system, and more recently created, and less well-known, ICs and court-like bodies, it simultaneously theorizes the political interactions that create, sustain, confound, and (at times) transform their activities. From it we gain a compelling picture of how new-style ICs are using international law to reshape political interactions spanning the interstate to the local level around issues from property rights to human rights.

The contributions of The New Terrain of International Law are too many to enumerate in detail. In the space I have here, therefore, I focus on two areas where future scholars can benefit from the foundation Alter lays in this volume. I then propose a set of questions about whether further proliferation of ICs may begin to complicate international affairs.

Continue Reading…

Alter Book Symposium: The New Terrain of International Law

by Karen J. Alter

[Karen J Alter is Professor of Political Science and Law at Northwestern University and co-direcor at iCourts Center of Excellence at the Copenhagen University Faculty of Law.]

The New Terrain of International law: Courts, Politics, Rights uses the universe of operational permanent international courts (ICs), those with appointed judges that stand ready to receive cases, as a laboratory to explore the changing reach and influence of international courts in contemporary politics. In 1989 when the Cold War ended, there were six operational ICs. Today there are more than two-dozen that have collectively issued over thirty-seven thousand binding legal rulings. The New Terrain of International Law shows how today’s international courts differ fundamentally from their Cold War predecessors. Most ICs today have ‘new-style’ features, compulsory jurisdiction and access for non-state actors to initiate litigation, which scholars associate with greater independence and political influence. Most ICs today have a mandate that extends beyond inter-state dispute resolution. Chapters in the book chart the uneven jurisdictional landscape of ICs today, and offer an account of the proliferation of new-style ICs.

The book is first and foremost a social science treatment of the growing role of ICs in politics today. I argue that the trend of creating and using new-style ICs signals a transformation from international law being a breakable contract between governments towards a rule of law mentality. ICs are not, I argue, the vanguard of this political change.  Rather, the trend towards creating new-style ICs reflects the reality that international law increasingly speaks to how governments regulate national markets, treat their citizens and conduct war, and both citizens and governments want these increasingly intrusive international legal agreements to be respected. For the most part, ICs are doing exactly what governments tasked them to do. International judges are resolving questions about the law, and holding governments and international organizations to international legal obligations.

My primary objective is to understand how and when delegating authority to ICs transforms domestic and international relations. Continue Reading…

Joint Opinio Juris-EJIL:Talk! Book Symposium this week

by An Hertogen

This week we are working with EJIL:Talk! to bring you a symposium on Karen Alter‘s (Northwestern) book The New Terrain of International Law: Courts, Politics, Rights (Princeton University Press). Here is the abstract:

In 1989, when the Cold War ended, there were six permanent international courts. Today there are more than two dozen that have collectively issued over thirty-seven thousand binding legal rulings. The New Terrain of International Law charts the developments and trends in the creation and role of international courts, and explains how the delegation of authority to international judicial institutions influences global and domestic politics.

The New Terrain of International Law presents an in-depth look at the scope and powers of international courts operating around the world. Focusing on dispute resolution, enforcement, administrative review, and constitutional review, Karen Alter argues that international courts alter politics by providing legal, symbolic, and leverage resources that shift the political balance in favor of domestic and international actors who prefer policies more consistent with international law objectives. International courts name violations of the law and perhaps specify remedies. Alter explains how this limited power–the power to speak the law–translates into political influence, and she considers eighteen case studies, showing how international courts change state behavior. The case studies, spanning issue areas and regions of the world, collectively elucidate the political factors that often intervene to limit whether or not international courts are invoked and whether international judges dare to demand significant changes in state practices.

From our side, Tonya Lee Putnam (Columbia – Political Science) and Jacob Katz Cogan (Cincinatti – Law) will provide comments, followed by Karen’s response.

Across the Atlantic, comments will be provided by Antonios Tzanakopoulos (Oxford) and Nico Krisch (IBEI).

As always, we welcome readers’ comments!

Weekly News Wrap: Monday, April 21, 2014

by Jessica Dorsey

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

Africa

Asia

Middle East and Northern Africa

Europe

Americas

UN/Other

Supreme Court Takes Jerusalem Passport Case on the Merits

by Peter Spiro

NY Times dispatch here. The Supreme Court will now confront the question of whether Congress can force the Secretary of State to include the birthplace “Jerusalem, Israel” at a U.S. citizen’s option. This could be a huge case or a not-so-huge case. If the Court affirms the D.C. Circuit’s ruling below and strikes down legislation purporting to constrain the Secretary of State’s passport authority, the ruling would be important but hardly epochal. That would protect the president’s authority over foreign relations, and fit neatly into a doctrinal tradition dating back at least a century. It is something new for the Court to get to the merits of the question — that’s why the decision in Zivotofsky I itself marked something of a watershed. If the Court accepts expansive executive branch powers, the jurisprudential gun remains loaded but no shots get fired.

But if the Court upholds the law, it will be a major departure from that tradition. The passport case implicates a genuinely sensitive issue of foreign relations. If the Court forces the State Department into something like formal acknowledgement of Israeli sovereignty over Jerusalem, who knows what would follow on the ground. This isn’t a case like Medellin, which predictably upset Mexico at the same time that our relations predictably weathered any such upset. Nor would it play out like Bond, which even if it restricts the Treaty Power will hardly be noticed by foreign audiences. To use the vocabulary of the foreign relations canon, a Supreme Court ruling against the executive branch in Zivotofsky could severely “embarrass” the President in the conduct of foreign relations. Think unruly crowds outside U.S. embassies.

That would have been inconceivable 20 years ago. But foreign relations law is being normalized. (For an excellent take on the shift, see Harlan Cohen’s piece here.) Foreign affairs has long been immune to judicial activism; maybe no longer. The Court may still hesitate to the extent it sees some real, even uncabinable, damage to the Middle East peace process in siding with Congress on the question. The easier path would have been to duck the case altogether. By accepting review, it may already have tipped its hand in a new direction.

On Steve Vladeck’s Post-AUMF Detention

by Deborah Pearlstein

Nothing like spring break (yes, we break right before semester’s end) to do a little catch-up reading – starting this week with Steve Vladeck’s new essay grappling with one of the nation’s most intractable problems: closing Guantanamo. Among the many challenges associated with the prison’s continued existence, Steve highlights its role in preventing serious consideration of repealing the AUMF (the federal statute authorizing the use of military force against Al Qaeda and associated groups). The Gitmo detainees are held under the domestic authority of the AUMF; as long as the government wishes to continue to hold at least some of the Gitmo prisoners (as it does), Congress can’t repeal the law without risking their potential release. Despite the winding down of U.S. operations in Afghanistan, the serious weakening of core Al Qaeda, and the President’s announced desire to move the nation away from a permanent wartime footing – AUMF repeal is essentially impossible as long as we are concerned with maintaining the legality of the Gitmo prisoners’ detention under domestic law.

So how to keep Gitmo from becoming the detention tail that wags the wartime dog? Steve proposes that even without an AUMF, we could continue to hold the approximately 45 Gitmo detainees the executive sees as the intractable core (those the administration has designated unprosecutable but too dangerous to release) under the authority of another federal law: Section 412 of the USA PATRIOT Act of 2001. Section 412 – which Steve notes has not been used once since its enactment in 2001 – requires the Attorney General to take into custody any alien he has reasonable grounds to believe is (for example) a member of a terrorist organization, or endorses or espouses terrorist activity, or “is engaged in any other activity that endangers the national security of the United States.” The alien may be detained for up to a week until the commencement of immigration removal proceedings or criminal prosecution, or for “additional periods of up to six months” if his “removal is unlikely in the reasonably foreseeable future,” and if release “will threaten the national security of the United States or the safety of the community or any person.”

Steve’s diagnosis of the relationship between Guantanamo Bay and the AUMF is spot on in some critical respects. The uniquely problematic nature of the Guantanamo detention program skews the current debate about the need for continuing use-of-force authority, just as surely as it has skewed broader debates about U.S. counterterrorism detention, trial, and interrogation policies for the past dozen years. For a host of reasons, the Gitmo population is singularly unrepresentative of the challenges that would be posed by counterterrorism detention or trial following the arrest of any terrorism suspect today: Gitmo detainees were denied basic Geneva protections (including any initial hearing about who these men actually were); some detainees were transferred there following periods of unlawful (even torturous) detention elsewhere; criminal counterterrorism laws that are today used for prosecution were much narrower extrajudicial scope in 2001; Congress maintains unprecedented restrictions on the transfer of detainees to the United States for any purpose; and so on. Indeed, as Steve recognizes, given all that has gone before, closing Gitmo now involves only bad options; the policy task is to choose which among these bad options is least worst under the circumstances.

Despite the low bar, I have to admit I’m still unconvinced that Section 412 is the least worst way to go. Continue Reading…

Events and Announcements: April 20, 2014

by An Hertogen

Call for Papers

  • The European Society of International Law Interest Group on Peace and Security (ESIL IGPS) and the Research Project on Shared Responsibility in International Law (SHARES Project) organize a joint symposium to be held in conjunction with the 10th ESIL Anniversary Conference in Vienna, Austria, on September 3, 2014. The symposium is entitled “The Changing Nature of Peacekeeping and the Challenges for Jus ad Bellum, Jus in Bello and Human Rights” and it will discuss whether there indeed is a major shift in UN peacekeeping practice and will explore important questions of international law raised by these new practices. We would like to invite candidates to submit a 500 words abstract proposal via email to Prof. Theodore Christakis and Dr. Ilias Plakokefalos by May 4. The proposal should also include the author’s name and affiliation, the author’s brief CV and the author’s contact details, in a single pdf document. Successful applicants will be informed by May 15. More information is available here.

Events

  • ALMA and the Radzyner School of Law of the Interdisciplinary Center (IDC) invite you to the next session of the Joint International Humanitarian Law Forum on April 30, 2014, 18:30 in room C110 (Arazi-Ofer Building, 2nd floor) in the IDC. Prof. Eugene KontorovichDr. Daphne Richemond-Barak and Dr. Ziv Bohrer will discuss the Crimean Peninsula & IHL. Following the presentations, there will be an open round table discussion.
  • Professor Harold Koh will be giving this year’s Clarendon lectures at the University of Oxford, speaking about Law and Globalization. The lectures are open to everyone and will take place over three evenings: Tuesday May 6, 5-6:30pm in the Pichette Auditorium, Pembroke College, followed by a drinks reception in the foyer by the auditorium 6:30-7:30pm; Thursday May 8, 5-6:30pm, The Gulbenkian Lecture Theatre, Faculty of Law, St Cross Building: Tuesday May 13, 5-6:30pm, The Gulbenkian lecture theatre, Faculty of Law, St Cross Building.
  • The T.M.C. Asser Instituut is offering five different summer programmes this summer: June 2 – 25: Summer Law Program on International Criminal Law and International Legal Approaches to Terrorism; June 30 – July 4: Summer Programme on International Sports Law: Is Sport Playing by the Rule of Law?; August 25 – 29: Advanced Summer Programme on Countering Terrorism in the Post 9/11 World: Legal Challenges and Dilemmas; August 25 – 29: Summer Programme on International & European Environmental Law: Facing the Challenges?(New in 2014!); September 1 – 5: Summer Programme on Disarmament & Non-Proliferation of Weapons of Mass Destruction in a Changing World (Scholarships available!). More information is available here.
  • The Interest Group on Migration and Refugee Law of the European Society of International Law, the Centre for Migration Law of the Radboud University Nijmegen and the Amsterdam Center for International Law of the University of Amsterdam are pleased to announce Heading to Europe: Safe Haven or Graveyard?, a panel discussion on migration by sea in the Mediterranean. The panel discussion will be held on 16 May 2014 at the Radboud University Nijmegen. For more information and registration visit the website.
  • The Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law (SLS) welcomes applications for its Sixteenth Summer Session, “International Criminal Law at the First World War Centenary – From Consolidation Towards Confrontation?”, Sunday 3 to Friday 15 August 2014. The SLS is a two-week summer programme aimed at postgraduate students, young academics and practitioners. This year’s session will scrutinize principles and procedures of international criminal law, their origins and contemporary challenges to their enforcement. In this context, there will be a special thematic focus on the principle of irrelevance of official capacity under international customary law and the Rome Statute of the International Criminal Court (ICC) as well as on controversies stemming from the Court’s cases against sitting heads of States, proposed changes to the Rome Statute and policy considerations determining the selection of situations and cases. Other topics include the Kampala amendments to the Rome Statute, the rights of the defence in international criminal proceedings, the role of international investigation commissions, as well as recent decisions and judgements of the ICC and the ICTY. Further information on the academic programme and a preliminary list of speakers are available here. The application period ends on Friday May 9, 2014.
  • The Geneva Academy of International Humanitarian Law and Human Rights is offering an International Weapons Laws Course, in Geneva from August 4-29, 2014. More information is here.

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

Weekend Roundup: April 5-18, 2014

by An Hertogen

This fortnight on Opinio Juris, Julian examined whether the US could legally deny Iran’s new U.N. Ambassador a visa to New York and provided his take on the three main arguments in favor of the visa denial. In a rare instance, Kevin agreed with Julian and elaborated with a post on the security exception in the UN Headquarters’ Agreement.

David Rivkin and Lee Casey surprised Julian with their calls to deploy “lawfare” against Russia. More surprises for Julian arose out of the U.S. District Court for the Southern District of New York’s decision to revive the In re South Africa Apartheid Litigation under the ATS.

In other posts, Kristen wondered how the current gap in international law on the protection of disaster refugees could be filled; Roger discussed the emerging trend of relying on investment arbitration to enforce international trade rights; Craig Allen contributed a guest post on the principle of reasonableness applied by ITLOS in the M/V Virginia G case; and Kevin shared his thoughts on Ukraine’s ad hoc self-referral to the ICC.

Duncan announced the Oxford Guide to Treaties he edited is now available in paperback, and welcomed the publication of a papers presented at a Temple workshop on the writings of Martti Koskenniemi.

As always, we listed events and announcements (1, 2) and Jessica wrapped up the news (1, 2).

Have a nice weekend!

Thoughts on the Ukraine Ad Hoc Self-Referral

by Kevin Jon Heller

As readers no doubt know, Ukraine has accepted the ICC’s jurisdiction on an ad hoc basis for acts committed between 21 November 2013 and 22 February 2014. The self-referral has already led to a good deal of intelligent commentary — see, for example, Mark Leon Goldberg’s discussion of the politics of an ICC investigation here and Mark Kersten’s convincing argument that Russia may not be particularly opposed to an ICC investigation here. I just want to add a few additional thoughts.

To begin with, I remain troubled by the insistence of Ukraine’s Constitutional Court that Ukraine cannot delegate its adjudicative jurisdiction to an international court. As it said in 2001:

Article 124 of the Ukrainian Constitution states that the administration of justice is the exclusive competence of the courts and that judicial functions cannot be delegated to other bodies or officials. The Constitutional Court noted that the jurisdiction of the ICC under the Rome Statute is complementary to national judicial systems. However, under Article 4(2) of the Rome Statute, the ICC may exercise its functions and powers on the territory of any State party, and under Article 17, the ICC may find a case to be admissible if the State is unwilling or unable genuinely to carry out the investigation or prosecution. The Court concluded that jurisdiction supplementary to the national system was not contemplated by the Ukrainian Constitution. Hence, the amendment of the Constitution is required before the Statute can be ratified.

Parliament’s acceptance of the ICC’s jurisdiction, even on an ad hoc basis, seems specifically foreclosed by the Constitutional Court’s judgment. Ukraine’s President and Parliament clearly don’t care about that inconvenient fact; will the ICC? Martin Holtermann may be right — the ICC may simply defer to Ukraine’s President and Parliament. But I can help but think it would be unseemly for an international court like the ICC to simply ignore a clear judgment issued by the highest court in a state purporting to accept its jurisdiction. At the very least, Fatou Bensouda should take the Ukraine’s internal conflict into account when she decides whether to open a formal investigation — you can bet that any suspect wanted by the ICC would challenge the legality of the self-referral in Ukraine’s domestic courts, litigation that could make it very difficult for ICC proceedings to go forward.

Relatedly, I think it’s important to remind ourselves that Ukraine’s self-referral does not mean the OTP will open a formal investigation into the situation. Diane Amann writes today that the self-referral shows “Europe is on [the] ICC docket.” That’s true — but only in the formal sense. As Mark Kersten noted in February, Europe has been on the ICC docket for a long time in terms of preliminary investigations. After all, the OTP announced the Georgia investigation in August 2008 — nearly six years ago. (Its Afghanistan investigation has been plodding along even longer, since 2007.) That hasn’t quelled the voices that have been complaining — with justification — that the ICC has been overly obsessed with Africa. So unless and until the OTP decides to open a formal investigation into the situation in Ukraine, the country’s self-referral is unlikely to have any positive effect whatsoever on the Court’s African reputation.

Finally, a brief thought on the temporal limits of the self-referral. I don’t think the ICC will reject the referral on the ground that it is too carefully tailored to ensure only one side of the conflict. (A major problem with Comoros’s Mavi Marmara state referral.) The temporal limits, however narrow, make some sense — the referral begins when Yanukovych announced Ukraine was abandoning the agreement with the European Union and ends when Yanukovych fled the country. Should Ukraine have accepted the ICC’s jurisdiction for a longer period — most notably, to include Russia’s invasion of Crimea? I had an interesting twitter debate earlier today on that issue with a bunch of smart Court-watchers, including Ryan Goodman, Eugene Kontorovich, Mark Kersten, Martin Holtermann, and David Kaye. I pointed out that it’s difficult to see what international crimes Russia committed during the invasion, other than the non-prosecutable crime of aggression. Ryan replied that a longer self-referral could give the ICC an opportunity to address important issues in the law of occupation. (See also his post here.) That’s absolutely true — but only if Russia actually violates the law of occupation, which seems unlikely given the popularity (certainly not uniform) of the invasion and annexation within Crimea itself. The wildcard is the crime that Eugene mentioned during our discussion — the transfer of civilians into occupied territory. I have no idea whether Russia intends to directly or indirectly transfer Russians into Crimea; Eugene seems to think it does, and I will defer to his greater knowledge of the situation. But my position with regard to that possibility is the same as my position on Israel’s transfer of civilians into the West Bank: whatever the merits of the allegations, the war crime is legally uncertain and factually difficult to prove, especially when the transfer is indirect instead of direct — which it is in the West Bank and would almost certainly be in Crimea. In the absence of other violations of the law of occupation, therefore, I am not sure the OTP would get involved.

I imagine we will have much more to discuss concerning the ICC and Ukraine in the weeks to come!

The Case That Won’t Die: U.S. Court Revives South Africa Apartheid Alien Tort Statute Lawsuit

by Julian Ku

So maybe the use of the Alien Tort Statute against corporations for overseas activities isn’t fully dead. Yesterday, the U.S. District Court for the Southern District of New York has revived In re South Africa Apartheid Litigation, a twelve-year-old litigation that just won’t die. A copy of the opinion can be found here.

Most of the opinion deals with whether a corporation may be sued under the Alien Tort Statute, an issue most thought was settled within the Second Circuit (the federal appeals circuit that includes New York). As a lower court within that circuit, the district court should have been bound to follow that court’s 2010 opinion Kiobel v. Royal Dutch Shell, which held that corporations cannot be sued under the ATS.  The lower court judge, Shira Scheindlin, decided that since the Supreme Court had ended up dismissing the Kiobel plaintiffs on other grounds (e.g. extraterritoriality), the Court had sub silentio reversed the original Kiobel decision’s ruling on corporate liability.  That is quite a stretch, and appears based almost solely on the Supreme Court’s reference to “mere corporate presence” as being insufficient to overcome the statutory presumption against extraterritoriality.  This language, and the Supreme Court’s decision not to otherwise mention the corporate liability issue, was enough for Judge Scheindlin to revisit the corporate liability issue.  I don’t really buy this sub silentio interpretation of Kiobel, but to give credit where credit is due, this argument was previewed in our Kiobel insta-symposium by Jordan Wells, a third year law student.  Let’s just say Judge Scheindlin really went out of her way to re-open this question.  

My views on the corporate liability issue haven’t changed since I published my full length attack on it back in 2010.  In my view, the Supreme Court’s decision in Mohamad v. Palestinian Authority, finding that the Torture Victim Protection Act does not allow torture claims against corporate defendants, provides an unappreciated boost to the policy rationale for limiting these kinds of lawsuits to natural persons.  But other circuits, and apparently Judge Scheindlin, refuse to agree with me (I know, I know, it’s hard to believe, but it’s true).

Putting aside the corporate liability issue, it is perhaps more surprising that Judge Scheindlin did not simply dismiss all of the defendants on Kiobel extraterritoriality grounds.  The Second Circuit appeals panel in this case held that all of the defendants (U.S. and foreign) should be dismissed because all of the alleged relevant conduct occurred in South Africa.  The U.S. corporate defendants (Ford and IBM) did not overcome the Kiobel presumption because the complaints only allege vicarious liability as parent corporations to their South African subsidiaries.   Yet Judge Scheindlin only dismissed the foreign defendants and will allow the plaintiffs to re-file their complaints against the US defendants to overcome the new Kiobel extraterritoriality presumption.  This means that she is willing to explore in greater detail the Kiobel requirement that plaintiffs’ claims “touch and concern” the territory of the U.S. with sufficient force to displace the presumption against extraterritoriality.  Will knowledge by the US parent of the subsidiaries’ activities in South Africa be enough? Will receiving profits from the subsidiaries be enough? I assume that is the best the plaintiffs will be able to plead is knowledge by the U.S. parent.

I assume this is going back to the appeals panel in this case, and we should expect some rather testy reactions. Judge Jose Cabranes (the author of the appeals court panel decision) and Judge Scheindlin have recently tangled over a local NY case against aggressive police tactics resulting in the controversial removal of Judge Scheindlin from that case (Judge Cabranes was one of three judges involved in that removal order).  This latest Scheindlin order seems a double-insult at Judge Cabranes.  It “reverses” his earlier Kiobel decision on corporate liability (from a lower court no less!), and then it ignores his subsequent opinion holding that all defendants should be dismissed via a motion for judgment on the pleadings.   A little tension brewing at 40 Foley Square, perhaps?

Guest Post: Law Of The Sea Tribunal Implies A Principle Of Reasonableness In UNCLOS Article 73

by Craig H. Allen

[Craig H. Allen is the Judson Falknor Professor of Law and of Marine and Environmental Affairs at the University of Washington.]

On April 14, 2014, the International Tribunal for the Law of the Sea (ITLOS) issued its ruling in the M/V Virginia G case (Panama/Guinea-Bissau), Case No. 19.  The dispute arose out of  Guinea-Bissau’s 2009 arrest of the Panama-flag coastal tanker M/V Virginia G after it was detected bunkering (i.e., delivering fuel to) several Mauritanian-flag vessels fishing in the Guinea-Bissau exclusive economic zone (EEZ) without having obtained a bunkering permit.  The case presented a number of issues, including whether the 1982 UN Convention on the Law of the Sea (UNCLOS), to which both states are party, grants a coastal state competency to control bunkering activities by foreign vessels in its EEZ.

After disposing of objections raised over jurisdiction and admissibility (notwithstanding the parties’ special agreement transferring the case to ITLOS), the decision adds a substantial gloss to several articles of the UNCLOS, particularly with respect to Article 73 on enforcement of coastal state laws regarding the conservation and management of living resources in the EEZ. Among other things, Panama alleged that Guinea-Bissau violated each of the four operative paragraphs of Article 73 in its boarding, arrest and confiscation of the Virginia G and by seizing and withholding the passports of its crew for more than 4 months. The tribunal’s holding can be summarized as follows:  Continue Reading…

Using Investment Arbitration to Enforce WTO Commitments

by Roger Alford

plainpackagingI would like to continue the theme of the emerging convergence of investment arbitration and international trade. In my previous posts (discussed here and here) I discussed the prospect of using trade remedies to enforce investment arbitration awards. Another key example of convergence addresses the emerging trend of relying on investment arbitration to enforce international trade rights. As discussed in my recent article, despite the assumption that international trade disputes must be resolved before the WTO DSB, the existence of broad umbrella clauses in BITs present a promising vehicle for enforcing investment commitments in trade agreements.

Of course, the scope of umbrella clauses is dependent on the language in particular BITs, which varies widely from one treaty to the next. Accordingly, there is no uniform understanding as to the meaning of umbrella clauses. Narrow umbrella clauses are unlikely vehicles for vindicating international trade rights. A treaty commitment such as that addressed in SGS v. Philippines to observe any obligation a Contracting State “has assumed with regard to specific investments” is unlikely to encompass legislative measures or treaty commitments. By contrast, broad umbrella clauses are better candidates for vindicating trade rights, such as the BIT clause at issue in Noble Ventures, Inc. v. Romania, which committed Romania to “observe any obligation it may have entered into with regard to investments.”

ICSID tribunals have interpreted broad umbrella clauses to give investors treaty rights with respect to unilateral undertakings of the State embodied in municipal law. In CMS Gas Transmission Co. v. Argentina, the tribunal concluded that utility tariffs designed to attract foreign investment were “legal … obligations pertinent to the investment.” In LGE v. Argentina, the tribunal concluded that abrogation of guarantees made to investors in a statutory framework gave rise to liability under the umbrella clause. In Enron v. Argentina, another tribunal concluded that the umbrella clause referred to “any obligations regardless of their nature.” This included not only contractual obligations, but also “obligations assumed through law or regulation” that are “with regard to investments.” In Sempra Energy International v. Argentina, a tribunal found that major legal and regulatory changes introduced by the State as part of its public function constituted treaty violations under the umbrella clause. Finally, in SGS v. Paraguay, a tribunal interpreted a broad umbrella clause as creating “an obligation for the State to constantly guarantee observance of its commitments entered into with respect to investments of investors of the other party. The obligation has no limitations on its face—it apparently applies to all such commitments, whether established by contract or by law, unilaterally or bilaterally.”

Note that these sweeping pronouncements do not require that a State’s commitment reference a specific investment or contract. As long as legislative or executive measures relate to the promotion or regulation of investments, they constitute unilateral undertakings covered by a broad umbrella clause. Such ICSID jurisprudence has led María Cristina Gritón Salias to conclude in this book that “tribunals overwhelmingly accept the application of umbrella clauses to obligations assumed unilaterally by host States,” whether those undertakings are “made through legislation or otherwise.” Likewise, Darius Chan has opined here that “the current tide of jurisprudence concerning umbrella clauses is in favor of such clauses encompassing host State commitments of all kinds.”

Assuming such interpretations are correct—which is by no means clear—this has significant implications for the WTO. If trade obligations are subject to investment arbitration, it would authorize private parties to initiate trade cases. Private rights of action through investment arbitration would supplement the diplomatic espousal of claims before the WTO.

This is precisely what one foreign investor has argued with respect to alleged WTO violations as a result of Australia’s plain-packaging laws. On November 21, 2011, Philip Morris Asia Ltd. filed an investment arbitration claim against Australia pursuant to the Hong Kong-Australia Bilateral Investment Treaty. The central contention of Philip Morris is that Australia’s plain packaging legislation violated various international obligations. Among the claims it filed is one under the broad “umbrella clause” in the BIT, which provides that “[e]ach Contracting Party shall observe any obligation it may have entered into with regard to investments of investors of the other Contracting Party.” According to the Notice of Arbitration:

This [umbrella clause] obligation is broader than specific obligations … made by the host State to investors…. It also encompasses other international obligations binding on the host State that affect the way in which property is treated in Australia…. [T]he relevant obligations are those enshrined in TRIPS, the Paris Convention, and TBT. [Claimant] as an owner of the investments is entitled to expect Australia to comply with its obligations pursuant to those treaties. By adopting and implementing plain packaging legislation, Australia has failed to observe and abide by those obligations.”

In response, Australia argued that:

The meaning and scope of such provisions is a matter of great controversy. However it is clear in the instant case that … the “umbrella clause” in Article 2(2) cannot be understood as encompassing general obligations in multilateral treaties…. Rather … the “umbrella clause” … only covers commitments that a host State has entered into with respect to specific investments…. [T]he obligations under the multilateral treaties … are not “obligations” which have been entered into with regard to investments of investors” of Hong Kong, but are rather obligations that operate on the inter-State level, with their own particular inter-State dispute resolution procedures.

It is too early to assess the likely success of such claims, but if the recent “umbrella clause” jurisprudence is accurate the claims are at least colorable.

This potential convergence of trade and arbitration has profound implications for the resolution of WTO violations. An arbitration panel liberally construing a broad umbrella clause could transform how WTO obligations are adjudicated. Exactly how would the adjudication of WTO obligations through investment arbitration alter the landscape? Here are a few thoughts.

First, umbrella clauses in BITs could create a private right of action for resolving WTO disputes. Investment arbitration circumvents the traditional barriers to initiating a WTO dispute. Diplomatic espousal is no longer a reliable check on the pursuit of unmeritorious claims. Through umbrella clauses foreign investors could seek recourse for violations of investment obligations that form part of WTO disciplines.

Second, with WTO dispute settlement the Member States control all decisions with respect to adjudication and resolution of the dispute. Investors may prefer an alternative dispute settlement process that places such decisions within their control. The incentives to settle an investment dispute depend on satisfying investors concerns rather than satisfying the disputing Member States’ concerns.

Third, with limited exceptions, the WTO prohibits unilateral trade remedies. Article 23 of the DSU provides that Member States “shall not make a determination to the effect that a violation has occurred … except through recourse to dispute settlement in accordance with the rules and procedures of this Understanding.” Investment arbitration is not a unilateral remedy imposed in response to a WTO violation, but neither is it WTO dispute settlement. Investment arbitration may provide a vehicle for compensating or attenuating the harm caused to investors without offending the WTO restrictions on unilateral trade remedies.

Fourth, WTO remedies are prospective, while investment arbitration remedies may be retroactive. The goal of the WTO adjudication is to bring Member States into conformity with their trade obligations. The goal of investment arbitration is, consistent with traditional understandings of state responsibility, to “wipe-out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.”

Fifth, under the WTO dispute settlement process, any losses an investor suffers as a result of a Member State’s WTO violation are not compensable. WTO remedies contemplate compensation directly to a Member State or, failing that, the suspension of concessions paid directly to the Member State in the form of increased duties. With investment arbitration, international law violations result in monetary compensation due directly to the investor.

Thus, liberal interpretations of broad umbrella clauses that encompass investment commitments in WTO undertakings may prove to be an attractive avenue for future investment arbitration.

Engaging the Writings of Martti Koskenniemi

by Duncan Hollis

MK2r_hollis (2)

Last Spring, Temple Law School was pleased to host a two day workshop on the scholarship of one of international law’s true giants — Martti Koskenniemi (simply put, I’m a big fan). Organized by my colleague, Jeff Dunoff, it was a great event with a wide-ranging conversation launching off Martti’s works in international legal theory, international legal history, fragmentation, interdisciplinary scholarship, ethics and the future of international law.  

Given how great the workshop was, I could not be more pleased to note that the accompanying papers have now been compiled and published in a single volume of the Temple International and Comparative Law Journal (vol. 27, no. 2). The full table of contents for the Symposium Issue can be found here

The papers include Jeff Dunoff’s framing introduction, a fascinating paper by Martti on the historiography of international law, and a slew of papers by renowned scholars, including Kim Scheppele, Tomer Broude, Sean Murphy, Mark Pollack, Rob Howse and Ruti Teitel, Samuel Moyn, Jan Klabbers, Andrew Lang and Susan Marks, Frédéric Mégret, and Ralf Michaels.  These papers address a number of themes that run through Koskenniemi’s work, including international law and empire; the fragmentation of international law; interdisciplinary approaches to international law; reading – and misreading – the tradition; and the international lawyer as ethical agent.  Both individually and collectively, the papers represent a significant effort to engage, explore, and extend the ideas found in Koskenniemi’s writings.

The special symposium issue is the first of what will be a tradition of yearly Symposia that will be organized by Temple faculty and published in the Journal.  As such, the Symposia marks a new form of collaboration between Temple faculty and students, and represent an experiment in academic publishing designed to provide students the experience of editing papers on cutting-edge research, and at the same time injecting faculty expertise into the selection and substantive editing of papers.

The Not Very Persuasive International Law Arguments in Favor of the Iran Visa Denial

by Julian Ku

I think it is fair to say that when Kevin and I agree on a legal question, there is a good chance there is a lunar eclipse happening or some other rare astronomical phenomenon occurring somewhere.  But since both of us think that the U.S. has no international legal basis to deny a visa to Iran’s new UN ambassador, this “fair and balanced blog” should consider the international law arguments offered in favor of the U.S. decision, especially as Iran has signaled it is going to fight this US decision, maybe by seeking an ICJ advisory opinion or an arbitral tribunal. This NYT article outlines three international law arguments that the U.S. might invoke in descending order of persuasiveness (at least to me):

Precedent and Practice Trump: Larry D. Johnson, who served as the Deputy Legal Counsel to the U.N. in the past, suggests that the U.S. and the U.N. have come to a tacit agreement to avoid disputes on visa denials.  If a visa is denied, the country facing denial must bring this matter up with the U.S.  The U.N. will not do so.  If this past practice is followed by the U.N., it effectively undermines the legal basis for Iran’s challenge.  Absent the Headquarters Agreement with the U.N., the U.S. has no obligation to issue a visa to Iran’s UN envoy, and Iran (not being a party to the Headquarters Agreement) has no international legal basis to protest.

My take: If this is current practice, and there is some evidence for this, the U.S. is really just acting consistent with its nearly sixty year pattern of practice by denying the visa in this case.  This doesn’t exactly legalize (internationally) the US act, but it does help.  

The Iranian Hostage Crisis Trumps: John Bellinger, over at Lawfare, suggests that because Iran’s UN Envoy was involved in one of the most egregious violations of diplomatic immunity rights in the past century, there will be little sympathy from other countries for Iran.

My take: This might be right, but it is not clear to me that the past violations would meet the “security exception”, and it is not even clear that the security exception is a valid international reservation to the Headquarters Agreement.  In any event, this is not really a legal argument, but a judgment on international politics.  If Iran goes to the General Assembly, the merits of this political judgment will be tested.

The UN Charter’s Human Rights Obligations Trumps: University of Houston lawprof Jordan Paust argues that because Iran’s UN Ambassador was involved in what the ICJ called a violation of human rights, the U.S. would be justified denying him a visa in reference to its U.N. Charter obligation to “respect human rights.”

My take: With all due respect to Professor Paust, I don’t think the U.N. Charter can be fairly read to require states to “respect human rights” in violation of their other international obligations.  The language of the Charter in Article I asks states to “promot[] and encourag[]” human rights. It is far from mandatory language.

Moreover, if correct, this is the exception that swallowed the UN Headquarters Agreement.  The U.S. could deny a visa to anyone whom it believes has or is likely to undermine “respect for human rights.” Past practice suggests the U.S. has not interpreted either the Charter or the Headquarters Agreement in this way.

If Iran decides to seek a General Assembly resolution, it will not require the U.S. to change its decision, but it would probably be a good test of John Bellinger’s thesis about where countries’ sympathies lie. My guess is that we are going to see tons of absentions.

If Iran gets the U.N. to demand arbitration under the Headquarters Agreement, this would be more interesting.  The U.S. might have to follow China and Russia’s example by simply refusing to participate in the arbitration. And the U.S. would probably lose that arbitration (although enforcement is another matter).   If I were Iran’s government, that would be a pretty ideal outcome. They still will not get their ambassador, but they can cause some pretty serious soft power damage before they give up.

Disaster Displacement: Gaps in International Norms

by Kristen Boon

There is an interesting interview with Professor Walter Kahlin, former Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons, on disaster displacement over at the IPI’s Global Observatory.

He discusses why the current international law regime on refugees is incomplete when it comes to displacement.  He explains:

Back in 2010, Haiti was hit by one of the most devastating earthquakes, and hundreds of thousands who were displaced within the country immediately found refuge in makeshift camps. But many showed up already during the very first night—the first few days after the earthquake—at the border of the neighboring Dominican Republic. The question for the president was: should he open the borders or should he keep them closed? And he couldn’t get any guidance from any kind of international law because these people, even though they didn’t have any opportunity at that time for their wounded family members to access medical assistance (this came only later), they were not protected as refugees or in any other kind of quality by international law. A gap.

The IMO concurs, stating:  “climate refugees fall through the cracks of asylum law.”   This is clearly an area ripe for reflection.    Do climate refugees have a right of access to neighboring countries?   What should the definition of “climate refugee” be?    More importantly, given the problem of differentiating between climate disasters and natural disasters, it makes it very difficult to determine the different obligations of the international community.    There appears to be little appetite to revise the 1951 convention on the status of refugees to include climate refugees, which would afford them protections akin to political refugees.  Interestingly, the UNHCR has spoken out against this approach, claiming that while environmental degradation can contribute to forced, cross-border migration, this should not translate into more grounds for granting refugee status.

There are some interesting initiatives afoot to fill the gap.   The Nansen initiative, a self-described  “bottom-up” initiative is starting to canvas the norms that might apply.   Information is available here.   The ILC is studying the related question of protection of persons in the event of natural disasters here.   Academics have entered the debate.  Professor Katrina Wyman at NYU has canvassed the current models and proposed a “rights model” in an article here, which would boost the levels of migrants from developing to developed countries to begin with.  She writes:

How might immigration policy be changed to increase resilience in developing countries vulnerable to the effects of climate change? One option would be to make it easier for citizens of developing countries that are vulnerable to climate change to move to destination countries temporarily or permanently, for example, by boosting allowable immigration levels from these countries.

Do our readers have any other suggestions on important sources or approaches to this important new international issue?

Weekly News Wrap: Tuesday, April 15, 2014

by Jessica Dorsey

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

Africa

Asia

Middle East and Northern Africa

Europe

Americas

UN/Other

  • Nepal would weaken the foundations of “genuine and lasting” peace after a decade-long civil war if it gave amnesties for serious crimes committed during the conflict, according to Navi Pillay, the UN High Commissioner for Human Rights.

Now in Paperback: The Oxford Guide to Treaties

by Duncan Hollis

Just a quick note to flag for interested readers that Oxford has released a paperback version of my book, The Oxford Guide to Treaties.  Happily, it is significantly cheaper than the hardback version — it’s listed for under $60 on Amazon right now.  I hope that this edition will interest non-institutional buyers for whom the earlier price tag was a bit steep. See here and here for additional links.

Events and Announcements: April 13, 2014

by Jessica Dorsey

Event

  • The British Institute of International and Comparative Law and Cambridge University Press invite you to the International and Comparative Law Quarterly Annual Lecture 2014, to be held at Charles Clore House at 5.30-7.30pm on Tuesday 20th May. Professor Mindy Chen-Wishart of Merton College, Oxford will deliver a lecture entitled: ‘Legal Transplant and Undue Influence: Lost in Translation or a Working Misunderstanding’, followed by a question and answer session. The event is free to attend, but please register here. The lecture will discuss an increasing awareness of the unquestioned assumptions of one’s own legal system as a means of understanding how a transplanted doctrine has been applied in a particular context, with a focus on Singaporean courts ‘borrowing’ undue influence in family guarantee cases from the English legal system. Through exploring hierarchy versus equality, the positional versus the personal, and collectivism versus individualism, it will conclude on whether a ‘Western’ legal transplant can be successful in a very different Singaporean cultural context. The Young Scholar Prize 2013 will also be awarded at the event, to Bharat Malkani, University of Birmingham, for his paper: The Obligation to Refrain from Assisting the Use of the Death Penalty. This Prize is awarded annually to a scholar aged 35 or under at the time of the publication of their article. The welcome address for the event will be given by the General Editor of the ICLQ, Professor Malcolm Evans OBE. The Lecture will be followed by a drinks reception, and is generously sponsored by Cambridge University Press, who publish and distribute the ICLQ.

Announcements

  • The Academy on Human Rights and Humanitarian Law sponsors the Program of Advanced Studies on Human Rights and Humanitarian Law which runs from May 27th to June 13th 2014. The program offers 19 courses taught by more than 43 prominent scholars in the field of human rights in both English and Spanish, with experience in the International Criminal Court (ICC), the International Court of Justice (ICJ), United Nations, Inter-American Commission and Court on Human Rights, recognized international NGOs and think tanks. Last year, the program welcomed more than 165 participants from over 24 countries with differing backgrounds and levels of experience for an intensive three weeks in Washington, D.C. The Program is offered in three categories which include the modality of Certificate of Attendance, ABA Credits for students currently studying in a U.S. law school and finally, the Diploma Course that is offered to a select group of 35 law professionals who fulfill the admission requirements. Additionally during the Program, the Academy hosts Human Rights Month, which features several special events such as panels, a film series, and site visits to international organizations. The May 1st deadline is less than a month away. The organizers encourage you to apply as soon as possible. You can access more information here
  • International scholars and practitioners of transitional justice are invited to apply for a 1-week workshop and training program on transitional justice organized and led by the Hague Institute for Global Justice from 23-27 June 2014 in The Hague. This week-long training is part of the Transitional Justice in Africa Fellowship Program, a joint initiative by the Hague Institute and the Institute for Justice and Reconciliation (IJR) in South Africa, that brings together senior and mid-level expert scholars and practitioners with extensive experience working to advance transitional justice in their community. For more information about the application process and the fellowship program, please visit our website at: Hague 1-week fellowship program.
  • The Grotius Center for International Law at Leiden University has announced several summer schools:

    International Criminal Law (23 June – 4 July 2014, The Hague) From Theory to Practice
    This summer school offers a unique opportunity to gain expertise in international criminal law in the International City of Peace and Justice. The course, which welcomes around 50 participants from all over the world, combines theory with practice: academics from Leiden University and experts from the international courts and tribunals lecture on topics as genocide, crimes against humanity, the crime of aggression and modes of liability, while students develop their skills through a cross-examination session and a challenging moot court exercise. (Law) Students and young professionals are invited to apply. Application deadline: May 1, 2014.

    Columbia Summer Program (June 30 – July 25, Leiden) In American Law
    The Columbia Summer Program is organized by the Law Faculties of Leiden University, the University of Amsterdam and Columbia University in the City of New York. Since 1963 these summer courses are held alternately at the Leiden Law School and at the Amsterdam Law School. The program is entirely taught by Columbia professors, and is designed to provide a general introduction to the American legal system for lawyers and other (legal) professionals, or (graduate) students interested in the program. Besides the excellent educational aspects, the Columbia Summer Program is also known for its exceptional fine atmosphere amongst participants and professors from Columbia University. Take a look at the website and apply before May 1, 2014!

    International Children’s Rights (7 – 11 July 2014, Leiden/The Hague) Frontiers of Children’s Rights
    Frontiers of Children’s Rights provides a comprehensive children’s rights course, which takes a close look at contemporary children’s rights issues from a legal perspective accompanied by reflections from other academic disciplines, legal systems, local perceptions and realities. Leading academic and professional experts in the field of children’s rights, international law and other relevant disciplines offer inspiring and interactive lectures, seminars and excursions in and around the historical university town of Leiden. Professionals and advanced students are welcome to apply. A limited amount of scholarships are available for this course. Application deadline: May 1, 2014.

    Human Rights and Transitional Justice (14 – 18 July 2014, The Hague) Transitional Justice and Regional Responses to Conflict
    Past decades have witnessed new approaches and tensions in the interplay between international justice, regional approaches and local responses to conflict. International Courts and Tribunals have sought to develop policies and mechanisms to engage with domestic constituencies and actors. But practice has also shown weaknesses and constraints of international criminal justice institutions. The ICC has faced challenges in its engagements in regional conflicts and new regional initiatives are emerging. At the same time, regional human rights have had to deal with dilemmas of historical justice and transitions. The Summer School explores these developments, including practice and underlying accountability strategies. Professionals and advanced students are kindly invited to apply before May 1, 2014.

    Women, Peace and Security (9 – 20 June 2014, The Hague) Challenges and Achievements
    In 2000 the UN Security Council adopted Resolution 1325, affirming the important role of women in the prevention and resolution of conflicts and in peace building, and calling on all parties to take special measures to protect women and girls from gender-based violence in situations of armed conflict. The 15th anniversary of Resolution 1325 in 2015 has been set as a marker for the achievements and goals on this core issue of international peace and security. This course, a joint initiative of Oxfam Novib and Leiden University, takes a close look at the WPS agenda and enables the participants to increase their knowledge, skills and networks in this field. Professionals and advanced students with a demonstrated interest in the theme are invited to apply before 1 May 2014.

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

There Is No General “Security Exception” in the UNHQ Agreement Act

by Kevin Jon Heller

I fully concur with Julian’s recent post about the United Nations Headquarters Agreement. There is no question that the US decision to deny Aboutalebi a visa violates the Agreement itself. But I’ve seen suggestions, most notably by my friend John Bellinger, that the US is not violating domestic US law because the 1947 United Nations Headquarters Agreement Act (scroll down) contains a “security exception” to the visa requirement. Here is what John said, according to Bloomberg:

President Barack Obama has authority to deny a visa to Iran’s newest choice as envoy to the UN, yet doing so would open up risks for U.S. foreign policy.

The decision in the case of Hamid Aboutalebi, who was part of the group that took over the American embassy in Tehran in 1979, is being made at a delicate point in U.S.-led negotiations over Iran’s nuclear program.

Under the United Nations Headquarters Agreement Act approved by Congress in 1947, the president has authority to deny visas to individuals deemed to pose a security threat to the U.S., said John Bellinger, a former State Department legal adviser who is now partner at Arnold and Porter LLP in Washington.

If Obama decides a person is a threat “then we’re not required to give that person a visa, and that would be consistent with our obligations under the headquarters agreement,” Bellinger said. “Whether that’s good policy or not that would be up to others to decide.”

“The short answer is, it’s complicated,” he said.

I disagree. With respect to John, nothing in the Headquarters Agreement Act permits the US to deny a visa to anyone it considers a “security threat.” The relevant provision is section 6, which Julian did not quote in full in his post (emphasis mine):

Nothing in the agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States other than the headquarters district and its immediate vicinity, as to be defined and fixed in a supplementary agreement between the Government of the United States and the United Nations in pursuance of section 13 (3) (e) of the agreement, and such areas as it is reasonably necessary to traverse in transit between the same and foreign countries. Moreover, nothing in section 14 of the agreement with respect to facilitating entrance into the United States by persons who wish to visit the headquarters district and do not enjoy the right of entry provided in section 11 of the agreement shall be construed to amend or suspend in any way the immigration laws of the United States or to commit the United States in any way to effect any amendment or suspension of such laws.

Section 6 contains two separate provisions. Provision 1 permits the US to prohibit individuals who have a right of entry under the Headquarters Agreement but are considered a security threat from traveling anywhere other than other than “the [UN] headquarters district and its immediate vicinity.” Provision 2 then permits the US to deny entry completely to anyone who does not have a right of entry under the Headquarters Agreement. Section 6 thus does not permit the US to deny entry completely to someone who has a right of entry.

I think this is the only plausible reading of section 6. To find a general “security exception,” we have to read “safeguard its own security” (1) in isolation from the rest of the sentence in which it is placed (in which case we must still infer that the US is entitled to deny entry completely to individuals who are security threats, because Provision 1 does not specify any remedy other than limitation to the UN area), and (2) in isolation from Provision 2, which does explicitly permit denying entry completely but limits that remedy to individuals who do not have a right of entry under the Headquarters Agreement. Moreover, as Julian notes, it is extremely unlikely the UN would have accepted a general security exception if that had been Congress’s intent, because such an exception would have effectively rendered section 11 of the Headquarters Agreement moot.

Thanks to Tyler Cullis for calling the “security exception” problem to my attention.

Can the U.S. Legally Deny Iran’s New U.N. Ambassador a Visa to New York? Nope.

by Julian Ku

According to Reuters, the U.S. is thinking hard about denying a visa to Iran’s new U.N. Ambassador, thus preventing him from taking up his post in New York. The new ambassador, Hamid Abutalebi, apparently participated in the Iranian takeover of the U.S. embassy in Tehran back in 1979. Although nothing is official yet, it looks like the U.S. is going to invoke its “security exception” to the U.N. Headquarters Agreement to deny Abutalebi a visa.   As in the case involving President Bashir of Sudan, denying a visa to Iran’s ambassador would almost certainly violate the Headquarters Agreement.  Let’s take a look at Section 11:

The federal, state or local authorities of the United States shall not impose any impediments to transit to or from the headquarters district of (1) representatives of Members or officials of the United Nations…

Iran’s ambassador is clearly covered by this language. The only U.S. argument flows from the “security” exception attached to the Headquarters Agreement upon its approval by the U.S. Congress.

Nothing in the agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States….

As a matter of international law, I do not think the United Nations ever officially accepted this amendment to the original Headquarters Agreement, and certainly it has never accepted the rather broad U.S. interpretation of this provision.  A deal was struck in the past to allow the U.S. to give very limited visas that kept visitors within 15 miles of UN Headquarters.

In any event, the U.N. has battled with the U.S. several times in the past over the use of this clause to deny visas to the PLO, or even to close down PLO observer missions at the U.N.  The U.N. even sought arbitration (as provided by the Headquarters Agreement) as well as an advisory opinion from the ICJ when the US went after the PLO back in the late 1980s.

Does this mean the U.S. cannot deny the visa? I think under domestic U.S. law, there is certainly a plausible basis for denial given Abutalebi’s past connections and U.S. practice in this area.  But the U.N. would be well within its rights to claim a violation of the Headquarters Agreement and to demand an arbitration that it would have a good chance of winning.   I don’t get why the U.S. wants to pick this fight at this time. I’d prefer it hang tough on its demand that Iran eliminate its nuclear weapons program rather than deny a visa over actions taken by a guy 35 years ago.  But it looks like we are going to have this fight, so stay tuned.

Should the U.S. Use “Lawfare” Against Russia?

by Julian Ku

Back in 2007, Messrs David Rivkin and Lee Casey’s Wall Street Journal op-ed helped popularize the term “lawfare” among U.S. conservatives, who have used the term to decry legal tactics that challenged US policy in the war on terrorism.   As they defined it then:

The term “lawfare” describes the growing use of international law claims, usually factually or legally meritless, as a tool of war. The goal is to gain a moral advantage over your enemy in the court of world opinion, and potentially a legal advantage in national and international tribunals.

So it is somewhat surprising that the duo, both very influential commentators among U.S. conservatives, is advocating a lawfareish approach to combatting Russia’s annexation of Crimea and its threats against Ukraine. Here is some of their advice in today’s WSJ.

As a start, the Obama administration should seek a U.N. General Assembly resolution requesting the International Court of Justice’s opinion on the legality of the Russian annexation of Crimea.

The U.S. and its allies should also challenge the legality of Russia’s actions in every conceivable legal venue, whether domestic or international.

Nongovernmental organizations, which cast themselves as guardians of the international order, have a role to play in condemning and challenging in courts of law and in public opinion Russia’s actions against Ukraine

In other words, the authors want to use “lawfare” against Russia.  I agree that the US has good legal arguments against Russia on this issue, and that the US also had good (but not unassailable) legal arguments for its war on terrorism policies. But I don’t think that the US invocation of international law, nor its employment of “lawfare” to highlight international law, will be very successful against Russia.  Lawfare’s main impact against the U.S. was to tie up many of its policies in domestic U.S. litigation. I don’t see that as an avenue against Russia.

Moreover, the employment of lawfareish pressure tactics could easily be used as an excuse to avoid taking more strenuous or effective actions (e.g. tougher sanctions, increased military aid, etc.).  I am not sure US conservatives should be eager to jump on this lawfare bandwagon, no matter how good the cause.

Weekly News Wrap: Monday, April 7, 2014

by Jessica Dorsey

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

Africa

Asia

Middle East

Europe

Americas

UN/Other

  • The American Society of International Law/International Law Association meeting kicks off today in Washington, D.C. ASIL Cables will be blogging about the event and you can also follow the Twitter hashtag #ASILILA14.

Events and announcements: April 6, 2014

by An Hertogen

Event

  • The United Nations Law Committee of the International Law Association, American Branch, along with The George Washington University Law School, invite you to a brownbag lunch panel on Treaty Survival on Wednesday, April 9, 2014, 1:00 – 2:15 PM in the Moot Court Room, The George Washington University Law School, 2000 H St. NW, Washington DC, 20052. This panel will address the effectiveness of treaties over time, with particular emphasis on the adaptability of treaties to present-day challenges. Can existing treaties, including those of fundamental doctrinal significance, such as the Geneva Conventions or the Treaty on the Non-Proliferation of Nuclear Weapons, remain effective in an era of rapid change? Can contemplated or future agreements that seek to address evolving areas about which incomplete information exists, such as nanotechnology, geoengineering, synthetic biology, cyberspace and weapons systems, remain relevant and responsive over time? What tools enable international lawyers to assist the international community in addressing these questions? Panellists are our own Duncan Hollis, as well as Sean Murphy, Georg Nolte and Arnold Pronto.

Calls for Papers

  • TDM is calling for a special issue on dispute resolution from a corporate perspective that seeks to widen and deepen the debate on issues that are central to the efficient management of disputes from a corporate perspective. They seek contributions related to dispute management, commercial dispute resolution, managing the cost of dispute resolution, and the future of commercial dispute resolution, but welcome other relevant contributions as well. The editors of the special are: Kai-Uwe Karl (General Electric), Abhijit Mukhopadhyay (Hinduja Group), Michael Wheeler (Harvard Business School) and Heba Hazzaa (Cairo University). Publication is expected in October 2014. Proposals for papers should be submitted to the editors by July 31, 2014. Contact details are available on the TDM website.

Announcements

  • The ICRC has launched its first Research & Debate Cycle on New Technologies and the Modern Battlespace. In recent years, a wide array of new technologies has entered the modern battlefield, giving rise to new methods and means of warfare, such as cyber attacks, armed drones and robots.  While there can be no doubt that IHL applies to them, applying pre-existing legal rules to new technologies may raise the question of whether the rules are sufficiently clear in light of the new technologies’ specific characteristics and foreseeable humanitarian impact. Each of these new technologies raises a host of issues, which the first Research & Debate Cycle proposes to discuss. From March to June 2014, several public events will be organized around the globe, with a view to answering several objectives: connecting academics and researchers on international humanitarian law, scientists, military representatives, human rights lawyers, policy-makers and practitioners;  facilitating discussion, exchange of knowledge and new ideas in relation to the theme of the cycle; ensuring a global outreach, through the involvement of relevant ICRC delegations and contacts in the field; proposing multi-disciplinary solutions to the questions identified. On March 25, the inaugural panel presented the various ethical, legal, scientific, and military issues that new technologies raise for humanitarian law and action, and which the subsequent events will strive to answer. The recording of the panel, as well as several interviews with the speakers, is now available here.
  • The EIUC Venice School of Human Rights will run from June 27 to July 5, 2014 and is accepting applications until May 15, 2014. The EIUC Venice School of Human Rights will update participants on the state of the art debate on human rights issues and stimulate their reflection on the current challenges faced by human rights actors worldwide. After an introduction on current challenges, participants will have the opportunity to learn more about one of these 3 selected topics “Business and Human Rights”, “The Internationalisation of Migration Law and the Role of the EU” and “Freedom of Expression and Assembly Online”. The EIUC Venice School combines theory and practice and its faculty involves internationally recognised academics and practitioners. Prof. Martin Scheinin, former UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and Prof. William Schabas from the University of Middlesex will open the Venice School 2014. Check herefor the full programme details.

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: March 29-April 4, 2014

by An Hertogen

This week on Opinio Juris, Julian wondered if the ICJ’s judgment in the Whaling in the Antarctic would ring in the end of the Whale Wars. He also curiously awaits the release of the Philippines memorial filed with the PCA in the UNCLOS arbitration against China and assessed China’s reaction to the submission.

Meanwhile, Kevin handed out advice on how to get yourself convicted of terrorism and Chris compared Russia’s rhetoric regarding Crimea to its rhetoric regarding intervention and recognition in Kosovo and South Ossetia.

We also hosted a symposium on the two latest issues of the Harvard International Law Journal. Martins Paparinskis discussed Anthea Roberts’ article on state-to-state investment arbitration, followed by Anthea’s reply. Next, Tim Meyer and Monika Hakimi discussed her article justifying unfriendly unilateralism, followed by a discussion between Christopher Whytock and Greg Shill on judgment arbitrage. Michael Waterstone discussed an article on equal voting participation for Europeans with disabilities. Karen Alter and Suzanne Katzenstein rounded up the symposium with a discussion on the creation of international courts in the 20th century.

Finally, Jessica wrapped up the news and listed events and announcements. If you’re a PhD student, post-doc or have recently started your career and would like to write something for Opinio Juris in July or August, don’t miss the call for abstracts for the second edition of our Emerging Voices symposium.

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

HILJ Online Symposium: Suzanne Katzenstein Responds to Karen J. Alter

by Suzanne Katzenstein

[Suzanne Katzenstein is a Visiting Assistant Professor at the Duke University School of Law.]

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

Thank you to Opinio Juris and the Harvard Journal of International Law for hosting this exchange and to Karen Alter for her thoughtful comments. My article’s central question is why governments create global international courts or, put more precisely, why some government attempts to create such courts succeed and other attempts fail. I evaluate all attempts at international courts that I could identify that reached the multilateral treaty negotiation or treaty drafting stage. This amounted to four successful and seven failed attempts at establishing courts invested with general jurisdiction or relating to international criminal law, the law of the sea, and human rights. The dominant explanation for the creation of international courts focuses on the functional incentives of governments, such as the need to overcome collective action problems or to signal credibility. I argue that the functional explanation provides insufficient insight into the successes and failures of the proposals I study. I evaluate two additional explanations. The first focuses on the preferences of the most powerful states, the UK and the US. I propose a second that emphasizes the role of legal crises and international lawyers. During periods of legal crisis, governments are more willing to cooperate with one another in order to bring stability back to the legal and political order; and they are also more receptive to the proposals for international courts made by international lawyers. Neither the power nor the crisis argument fully explains the eleven attempts analyzed in the article. Not surprisingly, history is too complex. But taken together, the two explanations provide substantial insight into ten of the eleven cases, and into the creation of international courts across the 20th century.

Alter rightly notes that I define international courts and tribunals narrowly—as only those institutions that are open to any state to join. This means I exclude both regional and ad hoc criminal tribunals. I do so not only for the sake of feasibility but also because I assume that state concerns about protecting their sovereignty are distinct in those contexts. States, for instance, retain more control over the design and operation of regional than they do of fully international courts (for example in the area of judicial appointments), and most state officials are not subjected to the jurisdiction of the ad hoc criminal tribunals they help create. In addition, current scholarship, including Alter’s own work, persuasively shows that the creation of regional courts has been influenced both by region-specific dynamics as well as cross-regional emulation.

I make three other important definitional and scope choices. I study only those proposals that reach the multilateral treaty drafting or treaty negotiation stage. These attempts seemed to have a real chance at succeeding. I define “success” as courts with treaties that actually entered into force. Finally, I also exclude tribunals that deal solely with economic disputes, such as trade and investment disputes. Here, my assumption is that powerful states—those with the largest markets—enjoy unique bargaining leverage during negotiations. Continue Reading…

HILJ Online Symposium: Hague Peace Conference Courts v. The Universe of International Courts

by Karen J. Alter

[Karen J. Alter is a Professor of Political Science and Law at Northwestern University. Alter’s most recent book is The New Terrain of International Law: Courts, Politics, Rights (Princeton University Press, 2014).]

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

Suzanne Katzenstein’s article is a very welcome systematic investigation of the Hague era and post-Cold War proposals to generate international courts (“ICs”). Katzenstein puts her finger on a serious problem in the literature on international courts. Scholars are biased towards success, since it is hard to build a career by focusing on what does not exist for most to see. Katzenstein is correct in pointing out the limitations of our scholarly biases. Indeed the only way to understand what leads to IC creation is to give equal weight to both successful and unsuccessful efforts.

Researching abandoned initiatives, however, is not so easy to do. One can find references to publicly voiced ideas and formed proposals that fail, but these references tend to be brief and anecdotal. Moreover, many ideas are voiced but then abandoned, leaving not even a paper trail. The dearth of deep secondary literatures regarding failed initiatives makes it is extremely hard to construct a universe of cases, let alone develop and test arguments that might explain why some proposals are abandoned.

During what I call the Hague Peace Talk era, however, proponents developed a grand vision for a network of international courts. Katzenstein thus has a period of time in which she can investigate abandoned and successful endeavors, side by side. She then traces what happened to these initiatives over time. Her analysis deftly summarizes this landscape of successful and failed global initiatives across the twentieth century. I especially appreciate this article’s many tables that really help us see patterns as well as what became of various proposals. Continue Reading…

So How is China Reacting to the Philippines Arbitration Submission? Not Very Well

by Julian Ku

China has not been quiet in reacting to the Philippines filing Sunday of its memorial in the UNCLOS South China Sea arbitration.  In addition to the foreign ministry’s remarks, the People’s Daily has released a full-scale defense of China’s legal and policy position (recently translated here). It is the longest official (well, close-to-official) statement of China’s legal position on the arbitration as I’ve seen anywhere. The heart of China’s argument is that this whole Philippines dispute is about sovereignty over the Nansha Islands, parts of which the Philippines is illegally occupying.  Because this is about sovereignty, and because China excluded maritime and territorial disputes from UNCLOS arbitral jurisdiction in its 2006 declaration, it is the Philippines (and not China) that is violating international law by filing the arbitration claim. Here are a couple of legal arguments or claims in the commentary that jumped out at me. (Read more after the jump)

HILJ Online Symposium: The Next Step

by Michael Waterstone

[Michael Waterstone is the Associate Dean for Research and Academic Centers and J. Howard Ziemann Fellow and Professor of Law at Loyola Law School Los Angeles.]

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

I am grateful that the Harvard International Law Journal and Opinio Juris have asked me to write a response to The Democratic Life of the Union: Toward Equal Voting Participation for Europeans with Disabilities, written by Janos Fiala-Butora, Michael Stein, and Janet Lord. This Article seeks to put forward “preliminary legal scholarship on equal political participation by persons with disabilities and what international human rights law requires for its attainment.” Given their various experiences as academics, international human rights lawyers, and academics, the authors are certainly well suited to this task (and I should note that two of the three are former co-authors and friends).

As I see it, this Article makes three significant points: (1) it describes Kiss, a European Court of Human Rights decision holding that Hungary had unjustly and indiscriminately taken voting rights away from someone solely by nature of his being placed under guardianship, and critiques the decision for offering limited standards for what type of individualized inquiry is required to restrict the franchise; (2) argues that under international law, states should not be able to disenfranchise persons on the basis of disability, even in the case where individual assessments are made; and (3) challenges Martha Nussbaum’s suggestion that states should authorize guardians to vote on behalf of individuals who are neither able to form a view on political issues for themselves nor communicate their choices to others (the authors would not have a guardian exercise decisionmaking, meaning that those who cannot vote – properly construed, a small number – do not vote).

There is a lot here, worthy of a response. In this post, I will primarily address the Article’s second point. Most other rights, as the authors explain, are derivative of voting, because participation in the political process is “one of the key avenues through which marginalized groups most effectively seek equality.” Thus, what law – whether domestic or international – has to say about voting is crucial (or in the language of American constitutional law, fundamental). The Article suggests that the disenfranchisement of people with disabilities generally, and people under guardianship specifically, is a failure of law. This is no doubt correct, but I would like to suggest incomplete. Law is an important step in the process, but only a first step. The history of people with disabilities being excluded from the political process demonstrates that full inclusion (something not fully and effectively realized in any state of which I am aware) requires culture change and vigorous efforts by advocates and lawyers to implement whatever changes are able to be made under the formal scriptures of law. In that sense, this Article offers an important and cogent narrative on what the law should be. I want to suggest that future work should move forward to discuss the hard work of implementing that law. Continue Reading…

Kosovo, South Ossetia, and Crimea: the Legal Rhetoric of Intervention, Recognition, and Annexation

by Chris Borgen

Following up on my previous post, I want to look at Russia’s rhetoric regarding Crimea and how it relates to its rhetoric regarding intervention and recognition in Kosovo and South Ossetia. While countries may use arguments that start to seem inconsistent, Russia’s use of “law talk” is especially striking because it uses legal rhetoric so often, even when it has rather weak arguments. While Russia deploys legal language, increasingly they are not the concepts of international law as generally accepted. Rather, Russia is building a revisionist conception of international law to serve its foreign policy needs regarding the states of the former Soviet Union.

But, first, let’s take a few steps back. For President Putin, the situation in Crimea has its roots in Kosovo. Kremlin watchers have argued that the loss of Kosovo was a traumatic experience for President Putin and Foreign Minister Sergei Lavrov. (For some background on the run-up to Kosovo’s declaring independence, please see this post.)

In his speech of March 18, President Putin revisited the disagreements Kosovo declaration of independence, even quoting the U.S.’s argument before the ICJ:

I do not like to resort to quotes, but in this case, I cannot help it. Here is a quote from another official document: the Written Statement of the United States America of April 17, 2009, submitted to the same UN International Court in connection with the hearings on Kosovo. Again, I quote: “Declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.” End of quote. They wrote this, disseminated it all over the world, had everyone agree and now they are outraged. Over what? The actions of Crimean people completely fit in with these instructions, as it were. For some reason, things that Kosovo Albanians (and we have full respect for them) were permitted to do, Russians, Ukrainians and Crimean Tatars in Crimea are not allowed. Again, one wonders why.

This idea that the residents of Crimea just want the same ability to become a country that those in Kosovo had is rhetorically appealing. (And keep in mind the combination of legal rhetoric with ethnic grievance in his quote, I want to come back to that.) But wanting to be a country does not mean you have the right to become a country. As discussed before, there is no general right to secession, regardless of referendum results.

However, there are many differences between the two cases: Kosovo had been under international administration for close to a decade, its final status was left open in the UN Security Council Resolutions, it was the site of significant ethnic violence. None of that is true in Crimea.

But what is especially interesting is how Russia has changed what it is describing as the lesson of Kosovo. In 2008, Russian Foreign Minister Lavrov called Kosovo’s potential separation from Serbia a “subversion of all the foundations of international law, . . . [a] subversion of those principles which, at huge effort, and at the cost of Europe’s pain, sacrifice and bloodletting have been earned and laid down as a basis of its existence.”

In his March 18 speech, though, President Putin took a different tack. While (Serbia’s) sovereignty and territorial integrity were the focus of Russian diplomacy concerning Kosovo, there is little talk now about protecting Ukraine’s sovereignty. Rather, President Putin spent the opening sections of his speech decrying the historical mistake of handing Crimea over to Ukraine “like a sack of potatoes.” And what of agreements, such as the Budapest Memorandum, recognizing the “existing borders of Ukraine,” respecting Ukraine’s territorial integrity, and reaffirming the obligation not to use or threaten to use force? President Putin explained “Russia seemed to have recognized Crimea as part of Ukraine, but there were no negotiations to limit borders.” (Emphasis added.) That is contradicted by the text they actually signed. What about sovereignty? “It is also obvious that there is no legitimate executive authority in Ukraine now, nobody to talk to.” (Perhaps he was confusing change of government with dissolution of a state.) And then “the residents of Crimea and Sevastopol turned to Russia for help in defending their rights and their lives…”

Once again, this is an argument based on irredentism and a sense that borders and sovereignty can become rather wispy and insubstantial when you hear the call of people of the same ethnicity or who speak the same language as you do. (Not necessarily the same citizenship, mind you: ethnicity and/or language.)

From here, he opens his view to the state of international law… (Continue Reading)

Emerging Voices Returns: Call for Abstracts

by An Hertogen

This July and August, we are bringing back our Emerging Voices symposium!

If you are a doctoral student or in the early stages of your career (e.g., post-docs, junior academics or early career practitioners within the first five years of finishing your final degree) and would like to share your research with our readers, please send a 200-word summary of your idea and your CV to opiniojurisblog [at] gmail [dot] com by May 1, 2014. We’ll let you know by the end of May if you’re invited to submit a full post. We’ll also let you know at that point when your post is scheduled to go online. Final submissions between 1000-1500 words will be required two weeks before publication for final review, so at the earliest by mid-June.

If you have any questions, feel free to ask them in the comments or send us an e-mail at the address above.

HILJ Online Symposium: Greg Shill Responds to Christopher Whytock

by Greg Shill

[Greg Shill is a Visiting Assistant Professor at the University of Denver Sturm College of Law.]

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

I thank Professor Christopher Whytock for engaging with the ideas in my article, Ending Judgment Arbitrage: Jurisdictional Competition and the Enforcement of Foreign Money Judgments in the United States, 54 Harv. Int’l L.J. 459 (2013), and the Harvard International Law Journal and Opinio Juris for hosting this symposium. Whytock has published widely on transnational litigation and judgment enforcement. Ultimately, I think his response misreads or overstates the article’s claims in some places (and in others we may simply have a difference of opinion), but the sister-state dimension of transnational judgment enforcement has thus far not attracted much scholarly attention and I am delighted to see his thoughtful and serious commentary in this forum.

I. Judgment Arbitrage & Whytock’s Criticisms

Briefly, the article focuses on the enforcement of foreign-country judgments in the United States. By its nature, this process creates the potential for clashes between domestic and foreign legal systems. In a typical case, a local court, often in the U.S., is asked to order a local defendant to satisfy a judgment rendered by a foreign court, under foreign law. Thus, unsurprisingly, scholars to date have tended to focus on the conflict between foreign sources of law and systems of justice on the one hand and their American counterparts on the other—the international-level conflict. One mission of the article is to explore domestic—i.e., sister-state—conflicts that result from the judgment-enforcement process.

To collect on a foreign judgment in the U.S., a plaintiff must first domesticate it. This entails a two-stage process: the judgment must first be recognized and then enforced. Federalism and the Erie doctrine are key to this process: (1) recognition is governed by state law, specifically forum law, (2) recognition standards differ widely from state to state, and (3) states have an obligation to enforce one another’s judgments. Thus, I argue, plaintiffs can exploit sister state differences in recognition law by first obtaining recognition in a state that is receptive to foreign judgments and then enforcing in a state that might not have recognized the foreign judgment in the first place. My article gives this phenomenon the name “judgment arbitrage,” and closes by proposing a federal statute to address it. The upshot of the statute is to allow states to resist judgment arbitrage by declining to enforce judgments they would not have recognized in the first place. Continue Reading…

HILJ Online Symposium: Is There Really Judgment Arbitrage?

by Christopher A. Whytock

[Christopher A. Whytock is a Professor of Law and Political Science, University of California, Irvine, School of Law.]

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

In Ending Judgment Arbitrage, Professor Shill claims that non-U.S. plaintiffs “routinely” practice a three-step strategy called “judgment arbitrage”: (1) selection of a foreign country to litigate the merits and obtain a favorable judgment; (2) selection of a “receptive” U.S. state to obtain judicial recognition of the foreign judgment; and (3) selection of a more “protective” U.S. state to obtain enforcement against defendant’s assets there (p. 470 & Figure 3). Shill argues that this practice is a problem, and uses law market theory to argue that new federal legislation is needed to solve it.

Shill has written a fascinating article. To the extent judgment arbitrage exists, I agree that it would pose problems for both litigant fairness and interstate competition. In addition, Shill’s extension of law market theory to the law of foreign judgments is a valuable contribution.

But Shill does little to show that judgment arbitrage actually exists, and he clearly fails to demonstrate that the practice is “routine” or otherwise significant enough to require a response from the United States Congress. In fact, the article does not identify a single real-world example of judgment arbitrage. Given that judgment arbitrage is highlighted in the article’s title, the focus of its law market analysis, and the raison d’être of its legislative proposal, this is a significant omission. Continue Reading…

HILJ Online Symposium: Monica Hakimi Responds to Tim Meyer

by Monica Hakimi

[Monica Hakimi is the Associate Dean for Academic Programming and a Professor of Law at the University of Michigan Law School.]

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

Thanks to Opinio Juris for hosting this symposium and to Tim for his very thoughtful comments. My article examines conduct that I call “unfriendly unilateralism”—where one state decides, outside any structured international process, to act unfriendly toward another. The economic measures that the United States and Europe are now taking against Russia in response to the Crimea situation are good examples. Likewise, before the U.N. Security Council authorized states to take a broad range of measures against Iran for its nuclear program, several states acted unilaterally.

Such conduct is, in my view, undervalued in the legal literature. Most international lawyers either dismiss unfriendly unilateralism as power politics that fall outside the law, or analyze it as a tool for enforcing the law—that is, for pressuring the target state to comply with existing law. In either event, the conduct is widely understood to be regretful or ineffective. To the extent that the conduct is inconsistent with the acting state’s own obligations, it also is unlawful—unless, of course, the acting state is enforcing the law after having been injured by the target’s breach.

My article’s descriptive claim is that unfriendly unilateralism can also play an important role in lawmaking. States variously use unfriendly unilateralism to: (1) preserve legal norms, (2) strengthen legal regimes by instigating stricter substantive standards or more rigorous oversight mechanisms, (3) reconcile competing objectives from different regimes, and (4) recalibrate regimes for changed circumstances. Of course, the idea that unilateral conduct can be juris-generative is not new; unilateral claims and counterclaims are a recognized part of the customary legal process. But when unilateralism is coupled with unfriendliness—that is, when the conduct is targeted at a specific state—international lawyers instinctively put on their enforcement lenses. They focus on how the conduct enforces existing law, not on how it helps make new law. For instance, several scholars have analyzed the unfriendly unilateralism against Iran as enforcement. Yet the acting states were using unfriendly unilateralism to support a broad and coordinated lawmaking effort. Their principal goal was to pressure Iran into accepting stricter substantive standards on nonproliferation and more rigorous oversight mechanisms. As the Iran example also demonstrates, unfriendly unilateralism is a fairly unique mode of lawmaking. Unlike in the ordinary customary process, a state that uses unfriendly unilateralism usually does not model the new norm. Rather, its unfriendly (and sometimes unlawful) conduct pressures the target into accepting or helping to develop an entirely different norm. This makes unfriendly unilateralism a potentially versatile and potent lawmaking tool. Continue Reading…

HILJ Online Symposium: Justifying Unfriendly Unilateralism

by Tim Meyer

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

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

Monica Hakimi’s Unfriendly Unilateralism is a very welcome addition to the growing body of literature on international lawmaking. Hakimi’s basic claim is that states often act unilaterally in ways that prompt changes to international law. She defines unilateral action as that which takes place outside the confines of the collective decision-making processes commonly associated with international lawmaking (p. 111). These unilateral actions can also work to the detriment of some states (hence, “unfriendly”). In the enforcement context, Hakimi argues, international law has long recognized a role for unfriendly unilateralism. Rules on countermeasures tell us when one state’s imposition of penalties on another state is excused. Hakimi’s article insightfully describes how the doctrinal focus on enforcement obscures and distorts the role that unilateralism can play in lawmaking. Hakimi makes two key points. First, descriptively, she argues that despite the focus on unilateralism’s role in relation to enforcement issues, states nevertheless use (often noncompliant) unilateral action to prompt changes in the law. Second, Hakimi argues that unilateral action can be good for international law. By overcoming the status quo bias that exists in collective decision-making procedures, unilateralism can allow the law to adapt to changed circumstances.

Hakimi’s descriptive claim is very persuasive. In developing her argument, Hakimi does a wonderful job of exposing one of the central tensions in international law: that states are both international law’s subjects and its authors. International lawyers, scholars, and states must be mindful that states often have mixed motives when acting. Some noncompliant actions are simple cheating and can be addressed as such. States intend other noncompliant acts to be juris-generative, though. Treating these acts as run-of-the-mine noncompliance risks, among other things, underestimating how invested states are in using international law as a tool to enhance cooperation.

Indeed, not only do states take unilateral action to prompt the law’s revision; they also build into international agreements devices that encourage unilateral action. Exit clauses, regime shifting, and soft law are common tools in states’ treaty-making practice that encourage renegotiation by permitting states to unilaterally depart from the legal status quo. As Hakimi very effectively documents, states’ resort to unilateralism—both when designing international agreements and after such agreements exist—can help circumvent the formal difficulties inherent in amending legal rules in a system in which all states must consent to their own legal obligations. Continue Reading…