May 2014

Haiti Cholera Case: New Briefs Filed on Privileges and Immunities

New briefs have been filed in the Haiti Cholera case against the UN, now pending in the SDNY.    Plaintiffs filed a response to the US Government's Statement of Interest, in which the US defended the UN's absolute immunity.  The important treaty law argument the Plaintiffs advance in response is that: Both international law and U.S. law provide that a material...

Weekly News Wrap: Monday, May 26, 2014

Your weekly selection of international law and international relations headlines from around the world: Africa Suspected Islamist Boko Haram gunmen rampaged through three villages in northern Nigeria, killing 28 people and burning houses to the ground in a pattern of violence that has become almost a daily occurrence, according to police and witnesses. A Rwandan peacekeeper was killed in Sudan's western Darfur region...

Weekend Roundup: May 17 – 23, 2014

This week on Opinio Juris, Duncan shared his initial reactions on the DOJ charges against Chinese military officials over cyberespionage targeting US industries and Chimène Keitner examined the indictments from the perspective of foreign official immunity. Julian looked into the aftermath of China's decision to move an oil rig to a disputed area of the South China Sea. He argued that Taiwanese investors might be better off invoking the...

Implications of Security Council Veto on ICC Referral of Syrian Situation

Before yesterday’s vote on referring the situation in Syria to the ICC, Louise Arbour, outgoing President of the International Crisis Group and former UN High Commissioner for Human Rights, was quoted in the New York Times as saying “The only question in my mind is, will it belong to the cemetery of good intentions or the museum of political scoring?...

Senate Foreign Relations Committee Takes on the AUMF

As several of my friends at Just Security and Lawfare have noted, the Senate Foreign Relations Committee on Wednesday held an, um, interesting hearing on whether the primary domestic law authorizing the use of force against Al Qaeda, the Taliban and associated forces needs to be repealed or revised. Witnesses’ written statements and (more interesting) video of the hearing is here. The hearings featured current DOD General Counsel Stephen Preston, Principal Deputy Legal Adviser at the State Department Mary McLeod, followed by former (Obama) State Department Legal Adviser Harold Koh and former (Bush) Attorney General Michael Mukasey. The Administration witnesses took a pounding. Some of the harsh questioning was, as ever, partisan bombast seeking to score pre-election points. Some of it was the members’ impatience with the complexity of the (overlapping) domestic and international law in the area. But some of it was the members’ understandable difficulty in trying to follow the witnesses’ at times needlessly confusing responses, viz. “Q: Give me a sense of what you get from the AUMF that you don’t have under existing statutory or constitutional law? A: “…I think it would be fair to say that with or without an AUMF, to the extent that it grants authority for the use of military force against Al Qaeda, the Taliban, and associated forces, in which we are in armed conflict, to the extent that those groups continue to pose a threat of imminent attack against this country, the President does have constitutional authority to act….” And some of it was genuine frustration, viz. “Q: If a bill was introduced today to repeal the [2001] AUMF, would the Administration’s position be support, oppose, or I don’t know? A: As of today, Senator, I think the answer is, we don’t know.” So does the Administration really think the President's authority under Article II of the Constitution gives it all the power it needs, even without the AUMF? If one is concerned about this kind of broad inherent executive authority, and if all agree the Al Qaeda of 9/11 is diminished and the nature of the threat of terrorism is evolving, doesn’t that necessarily mean we need new statutory authority to define or constrain the President’s ability to go after these evolving threats? My view: no and no. Here’s why.