Archive for
May, 2014

Haiti Cholera Case: New Briefs Filed on Privileges and Immunities

by Kristen Boon

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 breach of a treaty or contract by one party excuses performance by other parties. Defendants’ failure to establish a standing claims commission, or any other mechanism for relief, should deny Defendants the benefits of immunity and the right to shield themselves from responsibility in the instant case.

In other words, they argue that the Convention on Privileges and Immunities of the UN has been suspended because the UN failed to set up a standing claims commission as required under Article 29.

In addition, two amicus briefs have been filed.  The first is by a group of International Law Scholars who argue that the the UN has an obligation to respond to claims of a private law nature, and that the Haiti cholera case does not involve operational necessity.

The second is by a group of European Law Scholars, who provide information to the Court on how cases on Privileges and Immunities have been addressed in European jurisdictions.   In particular, they analyze the important precedent of Waite and Kennedy, in which a “reasonable alternative means” test was adopted.    They also distinguish the Mothers of Srebrenica case in which the Dutch Supreme Court and later the ECtHR upheld the UN’s absolute immunity, because the Security Council was considered to be fulfilling its core function and the core of the case involved operational necessity.

Each of these briefs raises important international law arguments and ultimately invites the SDNY to decide whether the UN’s immunity is conditioned on the requirement to provide a forum for the settlement of private disputes.

ICRC President’s Lecture for the Foreign and Commonwealth Office

by Kevin Jon Heller

On May 19, the Legal Directorate of the Foreign and Commonwealth Office held their 2nd Annual International Law Lecture. The lecture was delivered by Peter Maurer, the President of the ICRC, who spoke on “War, Protection and the Law: The ICRC’s approach to International Humanitarian Law.” More information about the speech is available at EJIL: Talk!, but I thought it would be worth posting links at OJ:

  • Video of the talk here.
  • Video of the subsequent Q&A here.
  • Transcript of the talk here.

Well worth checking out!

Joining Doughty Street Chambers as an Academic Member

by Kevin Jon Heller

One of the great advantages of being a legal academic is the ability to get involved in actual litigation. I have consulted on a number of cases at the ICTY, ICTR, and ICC over the years, most obviously serving as one of Radovan Karadzic’s legal associates, but it’s been a while, and I’ve been itching to get back in the game. So I am delighted to announce that I have been invited to join Doughty Street Chambers in London as an Academic Member.

Doughty Street, I think it’s safe to say, has one of the world’s best international-law practices. (And excels in many other areas, such as criminal law.) Its roster of barristers includes such luminaries as:

Geoffrey Robertson QC — one of the founders of the set, who needs no introduction to OJ readers.

Sir Keir Starmer, KCB, QC — the former Director of Public Prosecutions and Head of the Crown Prosecution Service, currently serving as Croatia’s counsel at the ICJ in Croatia v Serbia.

John R.W.D. Jones QC — counsel for Saif Gaddafi at the ICC and Mustafa Badreddine at the STL; former counsel for Naser Oric and Ante Gotovina at the ICTY, both of whom were acquitted.

Tim Moloney QC — one of the leading terrorism experts in the UK, having defended numerous IRA members and Muslims accused of terrorist acts (such as the men accused of the attack on the BBC and the plot to blow up the London Stock Exchange).

Wayne Jordash QC — counsel for Baglishema and Bagaragaza at the ICTR and Sesay at the SCSL; currently acting for Libya at the ICC and Jovica Stanišić at the ICTY.

Amal Alamuddin — counsel for al-Senussi at the ICC and for Julian Assange in his extradition case, as well as advisor to Ben Emmerson, UN special rapporteur on counter-terrorism and human rights, in his inquiry into the use of drones.

I could go on, but that list is enough to explain why I’m so excited — and so honoured — to be joining Doughty Street as an Academic Member. It’s a remarkable opportunity, one for which I’m deeply grateful.

I don’t yet know what cases I’ll be working on, but I’ll let readers know as soon as I do!

Weekly News Wrap: Monday, May 26, 2014

by Jessica Dorsey

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

Africa

Asia

Europe

Middle East and Northern Africa

Americas

UN/Other

Events and Announcements: May 25, 2014

by Jessica Dorsey

Just a couple things to note this weekend:

Call for Papers

  • The American Society of International Law’s Dispute Resolution Interest Group and the University of Colorado Law School are co-sponsoring a works-in-progress conference this August on international law and dispute resolution. Here is the Call for Papers

Announcements

  • The British Institute of International and Comparative Law is looking to hire a research coordinator to work on a collaborative project with the publishers Martinus Nijhoff/Brill, commemorating the 100th Anniversary in 2015 of the founding of the Grotius Society, resulting in several volumes examining British contributions to, and influences on, Public International Law. This is a part-time (0.5 fte) two year research post with no teaching duties and the possibility of flexible working arrangements. Full details can be found here. Informal enquiries may be made to the Publications Editor, Anna Riddell: a [dot] riddell [at] biicl [dot] org.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

How Does a Hybrid Tribunal for Iraq and Afghanistan Sound?

by Kevin Jon Heller

Colum Lynch reports today at FP.com that the United States is pushing for the creation of a hybrid international criminal tribunal for Syria by… the UN General Assembly:

[P]eople familiar with the matter say that the United States is already engaged in informal discussions with foreign governments over a plan to seek a mandate from the U.N. General Assembly to establish such a court, which would be comprised of Syrian, regional, and international judges, lawyers, and prosecutors. The two likeliest homes for the tribunal are Jordan and Turkey, these people said.

The plan currently under consideration is for the U.N. General Assembly to adopt a resolution inviting one of Syria’s neighbors, probably Jordan or Turkey, to work with the U.N. Secretary General to establish a so-called hybrid court, comprised of local, international, and Syrian prosecutors and judges. The court would be funded by voluntary contributions from governments that support the effort.

Lynch notes that a hybrid tribunal for Syria would be a first for the UNGA, because — unlike the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia — it would need to be created without the consent of the territorial state. (Syria would obviously never consent to such a court.)

In a recent post, Derek Jinks questions whether the UNGA has the authority to create a hybrid tribunal without Syria’s consent. I find his analysis compelling. But here is what I want to know: does the US really want to lead the charge for such a nonconsensual hybrid tribunal? After all, what’s sauce for the goose is sauce for the gander: if the US endorses the UNGA creating a nonconsensual hybrid tribunal for Syria, it will hardly be able to complain if the UNGA later creates, say — just spitballing here — a nonconsensual hybrid tribunal to deal with crimes committed in Iraq and Afghanistan. Either states need to consent to international criminal tribunals or they don’t. So does the US really want to give its blessing to what is an obvious attempt to circumvent P-5’s stranglehold over the Security Council?

Inquiring minds want to know…

ICRC Customary Study Online

by Kevin Jon Heller

Just a reminder to readers: the ICRC’s phenomenal database of customary international humanitarian law is available for free online — and includes a great deal of information that is not available in the two printed volumes. Here is the ICRC’s description:

Today, the ICRC has made available on its online, free of charge Customary IHL database an update of State practice of 7 countries and 3 tribunals relating to armed conflicts and humanitarian issues such as the distinction between combatants and civilians, the use of nuclear, biological and chemical weapons, the protection of internally displaced persons, the protection of children and in particular child soldiers, the prohibition of sexual violence and slavery, the integration of international humanitarian law (IHL) into the training and operations of armed forces, and the prosecution of war crimes.   

Practice up till the end of 2010 of the following countries has been included for this most recent update of the Database: Armenia, Brazil, Cuba, El Salvador, Georgia, Nepal and New Zealand. Case-law of the Extraordinary Chambers in the Courts of Cambodia, the International Criminal Court and the International Court of Justice dealing with questions of IHL has also been updated. New practice is marked in green throughout the Database. 

The purpose of the Customary IHL database is to make not only the rules of customary IHL but also the underlying State and international practice easily accessible by everyone interested in the interpretation and application of IHL. The information in the database is easily accessible by means of three search parameters: subject matter, type of practice and country, which can be used separately or can be combined in a powerful search engine. 

The formation of customary law is an on-going process, as practice keeps evolving. That practice therefore has to be updated regularly to identify the rules of customary law, monitor their potential evolution and assess the extent to which they enhance protection for victims of armed conflict by confirming or filling in gaps in treaty-based law. We will continue to update the database with practice from about 100 countries and a number of relevant international bodies. The next updates of both national and international practice are scheduled for June and July 2014.

The database is updated through a partnership between the ICRC and the British Red Cross. A wide network of ICRC delegations and a number of Red Cross and Red Crescent Societies gather source material for the Database, which is processed under the supervision of the ICRC by a joint ICRC-BRCS research team based in the Lauterpacht Centre for International Law.

The database is an invaluable resource, one I use often. If you’re not using it, you should!

Weekend Roundup: May 17 – 23, 2014

by An Hertogen

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 China-Vietnam BIT rather than the Taiwan-Vietnam Investment Promotion and Protection Agreement to claim compensation following anti-Chinese riots, and discussed what form Vietnam’s reported legal action could take.

ICC news came from Kevin and Kristen, with Kevin updating us on a constitutional amendment before the Ukrainian Parliament that would enable ratification of the Rome Statute, and posting a quote from Judge Van den Wyngaert’s dissent in Katanga in anticipation of Katanga’s sentencing. Kristen discussed the implications of Security Council veto on the referral of the situation in Syria to the ICC.

Guest posts this week touched upon a variety of topics: Christopher Gevers reported back from this week’s hearings at the South African Constitutional Court in a landmark universal jurisdiction case involving alleged crimes against humanity committed in Zimbabwe in 2007. Tyler Cullis, meanwhile, reviewed to what extent the US would be legally and politically able to ease sanctions against Iran as part of a nuclear deal. In the last guest post of the week, Gabor Rona commented on the recent Serdar Mohammed v Ministry of Defence case on detention in a non-international armed conflict.

Finally, Deborah shared her views on the Senate Foreign Relations Committee’s hearings on the AUMF, and as every week, you could also count on us to wrap up the news and list events and announcements.

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

 

Implications of Security Council Veto on ICC Referral of Syrian Situation

by Kristen Boon

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? This is, in a sense, an exercise in using the I.C.C. and accountability for posturing.”   In other words, the ICC was never the best option.   I’ve seen several similar comments in the blogs, for example by Dov Jacobs here and Kevin here.

Nonetheless, for a Council that is deeply engaged with Syria, yesterday’s Security Council session marked another defeat for the people of Syria. Despite widespread member state support starting in 2013 for a referral, see this letter signed by 57 states to the Security Council,  and reports that 60 states supported the referral yesterday, the meeting marked the fourth time Russia and China vetoed resolutions involving Syria, and the first time the veto has been used on a proposed ICC referral.   For background on this resolution, see this Security Council Report analysis here.

Because international tribunals such as the ICC would only have the capacity to try a fraction of the crimes, it has always been clear that other mechanisms, such as hybrid tribunals like those in Bosnia, a specially created international court, or the Syrian courts themselves, will be necessarily be part of the judicial response to the ongoing atrocities being committed in conflict.  In this sense, the “pass” on the ICC referral doesn’t mean alternatives aren’t available.   Moreover, US support for this referral (albeit with concessions related to the Golan Heights and jurisdiction over American servicepeople) further closes whatever legitimacy gap the ICC may have had in American eyes.

The legitimate controversy over financing aside, the downsides of potential ICC jurisdiction over ongoing atrocities committed by the government forces and opposition forces alike are really ones that, institutionally, could have and should have been handled by the Court itself, as a separate and independent body. I don’t agree with arguments that the Security Council referral was complicated by the fact that opposition forces are implicated in the commission of atrocities as well, or that the Security Council needs to decide who (which side) should be prosecuted in advance of referring a situation to the court.   What this conflict does indicate however, is the deepening entanglement between international courts and the Council, a theme which runs broadly through the Council’s peace and security work, and through its sanctions practice as well.

This entanglement can be addressed in a few ways.  The First, is greater clarity and better mechanisms to improve the relationship between the Council and the ICC (amongst other courts), while maintaining institutional independence.   For an overview of the issues broadly cast, see David Kaye’s 2013 report here.   Second, working around the Security Council is another option.  Because Syria is not a party to the ICC, the options are limited, but Amb. Christian Wenawaser of Leichtenstein has argued that another route to ICC jurisdiction might be hoc submission under Art. 12(3) of the ICC Statute.   In a talk at the International Peace Institute in January, he stated that the Syrian Opposition could refer the situation to the ICC now, to show the opposition is claiming its competence and supports accountability.  Although it would be a political act, in time, he predicted it might become a legally valid referral if the Syrian opposition is eventually recognized as the government.   The ICC would of course be the ultimate judge of the legal consequences of any such referral, but optimistically, it could trigger jurisdiction from the moment such a declaration was made, not the moment it was accepted. The downside to this approach, however, is that it might become a political tool amongst the competing factions to bolster their status as the official opposition.

Third:  censure of the veto.  A number of prominent NGOs responded to yesterday’s session with a statement urging permanent members of the Security Council to adopt a “code of conduct” that would require the P5 to voluntarily refrain from using the veto in situations of genocide, war crimes, ethnic cleansing and crimes against humanity.  This NGO statement invokes the parallel effort by France to introduce a resolution that would restrict the use of the veto in cases of mass atrocity.   Although France’s efforts were referred to multiple times during the debate, yesterday’s double veto made clear the political costs of blocking the veto are not yet high enough to sway Russia and China’s persistent objections to judicial or other intervention in Syria.

Fourth, using the General Assembly in the spirit of the Uniting For Peace resolution.  Derek Jinks analyzes this path here.

As these options become more attractive by necessity, yesterday’s vote makes clear that the Security Council’s primary is under scrutiny.  Moreover, it reinvigorates the debate about whether the Council’s failure to act creates legal consequences for the P5, member states, or the UN itself.  As Deputy Secretary-General Jan Eliasson said yesterday:

“The Security Council has an inescapable responsibility in this regard. States that are members of both the Security Council and the Human Rights Council have a particular duty to end the bloodshed and to ensure justice for the victims of unspeakable crimes.”

Senate Foreign Relations Committee Takes on the AUMF

by Deborah Pearlstein

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. Continue Reading…

Game On, Again? Vietnam Planning to File Legal Action Against China Over South China Sea Dispute

by Julian Ku

There have been lots of reports out in the last 24 hours saying that the Government of Vietnam is planning to take legal action against China for its movement of an oil rig into disputed waters in the South China Sea.  Indeed, the Philippines Government has stated that Vietnam has consulted it about its ongoing arbitration case against China and the two nations issued a joint statement of solidarity opposing China’s actions in the South China Sea.

What would the Vietnam legal action look like? The most likely action would be to seek arbitration under Annex VII of UNCLOS, just as the Philippines has done.  Of course, China would have the same defense and likely the same reaction to any Vietnam claim: that China’s Article 298 declaration excluding disputes over matters involving “sea boundary delimitations”or “involving historic bays or titles….” would exclude jurisdiction.  Moreover, China might further argue that Article 298 also allows it exclude “disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction….”

At first glance, I can’t see how Vietnam’s claim would be any better or worse than that of the Philippines with respect to jurisdiction.  Vietnam has the same objection to China’s Nine Dash Line, and Vietnam similarly argues certain South China Sea features claimed by China are not “islands” for purposes of UNCLOS entitled to an Exclusive Economic Zone.  So I think we will see a rerun of the Philippines arbitration.  Vietnam will constitute a tribunal, China will not participate, and away it goes.

Some other reports out of Vietnam suggest it will file a claim with the International Court of Justice, if only to show their good faith, even though the ICJ has no jurisdiction over China.  I don’t think this is a great strategy, but maybe it will be a useful diplomatic showcase.

Finally, there are reports Vietnam will allow its state-owned oil company to file an action against China’s state-owned oil company in Vietnamese courts.  This actually seems like an interesting idea, since once the Vietnamese company won the judgment, it could in theory try to enforce it against the assets of the Chinese company overseas.  It is not a slam-dunk, but it certainly could be a plausible claim.

I am doubtful that  an additional arbitration will lead to China backing down.  Certainly, the Philippines arbitration has not caused China to moderate its behavior toward the Philippines.   The extra added pressure of  a Vietnam arbitration is not huge, and my guess is that China will continue to simply ignore the arbitrations, reputational costs be damned.  I am not saying that it is bad strategy for Vietnam to try the arbitration route, but Vietnam should be realistic about the veryreal costs, and limited benefits of this strategy.

Guest Post: Rona on Mohammed v. Ministry of Defence and Detention in NIAC

by Gabor Rona and Jocelyn Getgen Kestenbaum

What is the source of the power to detain in an armed conflict that is not between states (non-international armed conflict, or NIAC)? Where is the relevant law on grounds and procedures for such detention found? Torture and drones aside, this is probably the most vexing, most controversial, and most significant of debates to come out of the “war on terror.” And it has been fired up anew in Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB), a decision of the High Court of England and Wales that has already received a good bit of attention.

The reason I limit the question to “in armed conflict” is that outside of armed conflict, the source of detention power is clear. There, it’s domestic law as constrained by international human rights law that provides the answer. A single important asterisk is made necessary here because a very few recalcitrant states, like the US, deny that human rights law applies to their extraterritorial conduct.

The reason I limit the question to armed conflict “that is not between states” is that in wars between states (international armed conflict, or IAC), the Third and Fourth Geneva Conventions provide detailed instructions on who may be detained, for how long, and why.

But for NIACs, like that in Afghanistan, the Geneva Conventions are silent on the grounds and procedures for detention.

One position is that it makes absolute sense for the Geneva Conventions to be silent on this issue, since detention in NIAC can simply be governed by the law of the state where the detention is taking place – just the same as if it were not armed conflict. There is no work for international law of war to do here. Under this view, people may be deprived of liberty only on grounds and according to procedures set forth in domestic law and in accordance with international human rights law, they must be afforded prompt review by an independent body to determine the legality of detention and to order release, if detention is found to be unlawful. This is, in essence, the right of habeas corpus. This view is increasingly shared by international and national jurisprudence, not to mention human rights advocates.

The decision in Serdar Mohammed, a case that deals with detention power in NIAC, is in accord: in the absence of relevant powers expressed in the law of armed conflict, NIAC detention is subject to human rights law.

The continued applicability of human rights law in NIAC also finds support in the international treaties applicable to such conflicts…

Quote of the Day — Katanga Dissent

by Kevin Jon Heller

Germain Katanga will be sentenced tomorrow, having been convicted of crimes on the basis of an uncharged, unlitigated mode of participation that the Pre-Trial Chamber assured the defence would not be at issue in the trial and that the Trial Chamber first mentioned more than six months after the 30-month trial ended. The Trial Judgment is a horrorshow, replete with statements by the majority blaming the defence team for not having the Kreskin-like ability to anticipate its recharacterization years before it happened and investigate accordingly. In anticipation of what will no doubt be a lengthy sentence, therefore, I offer the following quote from Judge Van den Wyngaert’s dissent:

I find it particularly striking that my colleagues of the Majority, who have needed more than twenty months to produce a judgment in a case of relatively limited dimensions on the basis of a limited amount of evidence that had been, for the most part, known to it for a long time, now find it fitting to criticise the Defence for not being able to conduct a complex investigation with limited resources and under very difficult circumstances in less than two months.

Anyone interested in the ICC should pore carefully over Judge Van den Wyngaert’s dissent, which simply lays waste to the trial judgment. The dissent stands as the lone bright spot in an otherwise dismal case — one that has resulted in perhaps the most unfair conviction in the history of international criminal law.

PS. Readers who are interested in my critique of Regulation 55, governing legal “recharacterization” of facts, might want to read this (updated in light of the Katanga trial judgment).

Guest Post: Foreign Official Immunity and the Chinese Cyberespionage Indictments

by Chimene Keitner

[Chimène Keitner is Harry & Lillian Hastings Research Chair and Professor of Law at the University of California Hastings College of the Law, and an Adviser on Sovereign Immunity for the American Law Institute’s Fourth Restatement of the Foreign Relations Law of the United States.]

As Duncan has pointed out, if a U.S. court sought to exercise jurisdiction over the five Chinese officials indicted by a Pennsylvania grand jury for computer fraud, identity theft, economic espionage, and trade secret theft, the officials would likely claim entitlement to foreign official immunity because they acted on behalf of China. While state action is not a required element of any of the alleged crimes, it permeates the facts of this case, which Attorney General Eric Holder emphasized “represents the first ever charges against a state actor for this type of hacking.”

The Foreign Sovereign Immunities Act provides the sole basis for obtaining jurisdiction over foreign states and their agencies or instrumentalities, see 28 U.S.C. § 1604, although it remains unsettled whether the FSIA applies to criminal proceedings against entities. The FSIA does not apply to individual foreign officials, see Samantar v. Yousuf, except for the section creating a limited private right of action for state sponsored terrorism, 28 U.S.C. § 1605A(c). Rather, the immunity of current and former foreign officials is governed by applicable treaties (such as the Vienna Convention on Diplomatic Relations, implemented by the Diplomatic Relations Act) and, in the absence of a statute, the common law.

As Duncan indicates and Jack Goldsmith also notes, the question of foreign official immunity will only arise as a practical matter if the Chinese defendants come within the personal jurisdiction of a U.S. court. The officials could not claim status-based immunity unless they were heads of state, diplomats, or members of special diplomatic missions at the time of the legal proceedings. Instead, they would claim conduct-based immunity on the grounds that their acts were all performed on behalf of the Chinese state.

The decision to bring charges suggests that the USDOJ does not view the defendants as lawfully entitled to assert immunity for their alleged conduct. This could be for one of several reasons: Continue Reading…

Guest Post: Cullis on Iran Sanctions

by Tyler Cullis

[Tyler Cullis is a Policy Associate at National Iranian American Council.]

Introduction

We’ll soon find out whether the decade-old nuclear dispute with Iran can be resolved diplomatically, as the parties return to Vienna next month to hammer out a comprehensive agreement. So far, negotiations have been deftly handled by both US and Iranian negotiators – the positive atmosphere, so critical to staving off domestic opposition, having been maintained over several months. But still, the most difficult issues remain on the table, including the number (and type) of centrifuges Iran will be permitted, the duration of a final agreement, and the timing of sanctions relief. Successfully concluding a nuclear deal will require compromise from both parties on each of these issues.

While much attention has zeroed in on Iran’s obligations under a final deal, few have discussed the specific modes by which the US will comply with its own commitments. This is troubling, especially insofar as the White House’s ability to provide Iran measurable sanctions relief, absent an affirmative act of Congress, is not assured. In fact, relieving the sanctions will involve difficult questions of law and policy that deserve far more extensive discussion than received at present. Below, I discuss a few of these issues, posing as they do hurdles perhaps as sizeable as Iran’s own centrifuges.

Treaty or Not to Treaty?

Soon after the Joint Plan of Action was inked in Geneva last November, questions arose as to the legal nature of the preliminary agreement: Was it binding as a matter of international law? If so, would it need to be submitted to the Senate (or, in Iran’s case, to the Majles) for approval?

Consensus, here and elsewhere, said no: the interim deal was left unsigned by the parties and had couched its commitments as “voluntary measures,” not mandatory ones. This, it was argued, signified that the P5+1 and Iran did not intend for the document to be either binding on the parties nor governed by international law. Drawbacks to this approach were obvious, but the upside was that each of the parties avoided the need for legislative approval at home (Iran, too, has constitutionally-mandated procedures to follow before an international agreement can be entered into and take domestic effect). Now that we are more than halfway through the interim period and both parties remain in full compliance with their “voluntary” obligations, the choice of informal agreement looks to have been the correct one.

Going forward, however, the central question will be whether the parties replicate this model in a final deal or instead cement a binding international agreement (i.e., a treaty). While the White House remains keen on insulating Congress as much as possible from playing spoiler and is thus unlikely to submit a final deal to the Senate for approval, there are several factors that ward against replicating the “soft law” nature of the Joint Plan of Action.

First, because the US will be required to offer more lasting sanctions relief than that provided under the Joint Plan of Action and, as of now, the President is limited in the kind of sanctions relief he can provide, Congress will be called upon to lift the sanctions at some point in this process. Whether to include Congress at the front- or back-end of a final deal remains a strategic question for the White House, but avoiding Congress altogether is no longer a plausible scenario. (Nor is more aggressive action from the White House likely. It is improbable that the White House will attempt to conclude a sole executive agreement with Iran that overrides contrary federal law and gives the President the authorities he needs to provide Iran the requisite sanctions relief. Such a step would prove a legal leap beyond that of Dames & Moore — the President not acting pursuant to Congressional authorization or acquiescence but rather in ways contrary to Congress’s clear direction.)

Second, unlike the interim deal, which was intended as both a confidence-building measure and a place-holder to allow the parties time to negotiate a final deal, the final agreement will be one where the obligations actually matter. Continue Reading…

Guest Post: the Zimbabwe Torture Docket Case

by Christopher Gevers

[Christopher Gevers is a lecturer at the School of Law at the University of KwaZulu-Natal. Disclaimer: Christopher advised the Southern Africa Litigation Centre and the Zimbabwe Exiles Forum (the Applicants) on the international legal aspects of the case and assisted in the drafting of their written submissions. Twitter: @ChrisGevers]

On May 19, South Africa’s Constitutional Court heard a landmark universal jurisdiction case involving alleged crimes against humanity committed in Zimbabwe in 2007. The so-called ‘Zimbabwe Torture Docket’ case involves an administrative review application brought by two civil society organisations against the South African government’s decision not to open an investigation into the alleged crimes under the country’s Rome Statute Act.

The genesis of the case was a docket hand-delivered by the Southern Africa Litigation Centre (SALC) to the Priority Crimes Litigation Unit of the National Proseuting Authority (NPA) on 14 March 2008. The docket contained evidence of acts of torture committed in Zimbabwe following a raid on Harvest House – the headquarters of the opposition Movement for Democratic Change – on 28 March 2007. The docket further alleged that the torture was systematic and took place as part of an attack against the civilian population, pursuant to a State policy: elevating it to the level of crimes against humanity. The docket named senior security and government officials that it alleged bore individual criminal responsibility for these crimes under the doctrine of command responsibility. According to the docket, these individuals frequented South Africa regularly on both official and personal business. On this basis SALC requested the authorities investigate, and if necessary prosecute, these crimes under section 4 of the Rome Statute Act on the basis of universal jurisdiction.

On 19 June 2009 – fifteen months after recieving the docket – the NPA wrote to SALC advising it that, after consultation with the Police, it did not intend to pursue the matter, citing various reasons. In December 2009 SALC launched a legal challenge in the North Gauteng High Court to the decision of the NPA and the Police not to pursue the matter on the basis that it was irregular and unlawful under South Africa’s administrative justice principles and contrary to the rule of law (see here and here for further background). SALC was joined by a second Applicant: the Zimbabwe Exiles Forum.

The Applicants were successful in the High Court, and succesfully defended that decision in the Supreme Court of Appeal (SCA) (for a detailed discussion of these decisions see here and here). In the most recent decision the SCA found that (i) the Police were empowered to investigate the alleged offences irrespective ofwhether or not the alleged perpetrators are present in South Africa, and (ii) in this matter the Police were required  to initiate an investigation under the Rome Statute Act into the alleged offences.

This week’s case involves an appeal by the Police against the SCA’s decision (the NPA elected not to appeal). The Police adopted a twin-attack on the SCA’s decision: (i) challenging the legality of the proposed investigation under international law and South African law, and (ii) challeging the order given by the SCA as both procedurally irregular and ultra vires. OJ readers will most likely be interested in the first challenge.

In the Constitutional Court the written submissions of the Parties – which include no less than seven amici curiae (including an expert brief by inter alia John Dugard and OJ’s Kevin Heller) – raise a number of interesting international and domestic legal questions regarding the exercise of universal jurisdiction. These include: the legality of so-called universal jurisdiction in absentia under international law; the limits (if any) international law places on states’ investigative powers in UJ cases; the correct interpretation of the (domestic) Rome Statute Act’s ’presence’ requirement; whether the Convention Against Torture (and its implementing legislation) is the lex specialis in this matter; the relevance of the fact that Zimbabwe is not a party to the Rome Statute; and the question of whether there is an obligation to prosecute international crimes under international law or domestic Constitutional law.

International law observers will no doubt hope that the Constitutional Court takes up the invitation to consider these arguments fully and, regardless of where it lands on the matter, render a detailed judgment with far-reaching consequences for the exercise of universal jurisdiction by national courts.

Ukraine Parliament to Amend Constitution Re: the Rome Statute

by Kevin Jon Heller

As I’ve noted before, Ukraine’s Constitutional Court has held that the Ukraine cannot ratify the Rome Statute because — in the words of the ICRC — “the administration of justice is the exclusive competence of the courts and… judicial functions cannot be delegated to other bodies or officials.” According to the Coalition for the International Criminal Court (on twitter), the Rada is now considering a bill that would amend Ukraine’s constitution to make ratification possible. The text of the bill is in Ukrainian; if anyone out there would like to provide a translation (the bill is short), I’d be most appreciative:

Проект
вноситься народним депутатом України
Ю. Б. Дерев’янком
та іншими народними депутатами України

ЗАКОН УКРАЇНИ
Про внесення змін до статті 124 Конституції України

Верховна Рада України постановляє:

1. Доповнити статтю 124 Конституції України (Відомості Верховної Ради України, 1996 р., № 30, ст. 141) частиною шостою такого змісту:

“Україна може визнати юрисдикцію Міжнародного кримінального суду на умовах, передбачених Римським статутом Міжнародного кримінального суду.”

2. Цей Закон набирає чинності з дня, наступного за днем його опублікування.

Голова Верховної Ради  О. ТУРЧИНОВ
України

I’m intrigued by the fact that Ukraine’s parliament believes it has to amend the constitution in order to ratify the Rome Statute, but is free to accept the ICC’s jurisdiction on an ad hoc basis. The decision of the Constitutional Court prohibits any delegation of Ukraine’s jurisdiction to an international tribunal — which would seem to include ad hoc delegations as well as permanent delegations. But I’m obviously not an expert on Ukrainian law!

Why Taiwanese Investors Should Think About Becoming Chinese (At Least When Suing Vietnam)

by Julian Ku

I’ve been settling into my digs this summer at the National Taiwan University College of Law as a visiting research fellow with the support from a grant from the Taiwan Fellowship. Mostly, I’ve been spending my time eating my way through what I believe is the best Chinese food scene in the world  (I am posting pictures of my eating exploits on my facebook page for those interested in Chinese food).

But in between absurdly delicious meals, I have also been following the anti-Chinese riots in Vietnam that have caused over 500 different businesses to be shut down there over the past week and thousands of Chinese and Taiwanese nationals to flee Vietnam. Those violent riots were apparently in response to China’s placement of an oil rig in disputed South China Sea waters.

The lively Taiwanese media has been following these riots with much more intensity than their Chinese counterparts, because a large proportion of the burned or trashed businesses are actually owned by Taiwanese nationals, with Chinese workers or managers administering it for them.  TV news here is filled with pictures of Taiwanese flying home with harrowing stories of dodging rioters by hiding in trash cans, etc.  Their plight has caused some soul-searching here in Taiwan because Taiwan’s status as a non-country that is recognized in Vietnam only as a province of China means they receive the blowback for China’s actions and Taiwan’s government has limited means to respond and protect their own nationals.  (Their foreign ministry did helpfully issue stickers to their nationals saying, in Vietnamese, “I am from Taiwan”. Reminds me of the time I was told to put little Canadian flags on my backpack when I wandered through sketchy areas of Egypt).

In addition to advising their nationals to emphasize their “Taiwaneseness”, the Taiwan government’s main action has been to invoke the 1993 Taiwan-Vietnam Investment Promotion and Protection Agreement (in Chinese).   The Taiwan government is using this agreement as proof that it can protect and seek compensation for its nationals abroad.

This is sort of like a bilateral investment treaty, but not quite, because of Taiwan’s odd non-country status.  It is technically an agreement between the “Taipei Economic and Cultural Office in Vietnam and the Vietnam Economic and Cultural Office in Taipei” which means it is an agreement between two quasi-government agencies, and not the governments as a whole. This means it is unlikely to be governed by international law, although the agreement doesn’t choose any governing law either.  Moreover, the agreement does not provide for referral to an ICSID tribunal for any investor claims against the host government (in this case Vietnam). Rather, it seems to allow for referral to arbitration under the “1988 International Chamber of Commerce” Rules.  Moreover, such referrals seem to require the mutual consent of the parties in Article 8.  This might allow Vietnam to block a referral to arbitration by a Taiwanese investor.  (Oops! This provision refers to disagreements between the two parties to the agreement, not the investor and the host state. Sorry about the misreading. But I think my larger critical take stands). Since the Agreement doesn’t otherwise waive Vietnam’s state immunity, I am not confident about the ability of an investor to enforce any awards from an ICC tribunal without such consent anyway.

In other words, I am skeptical that the Taiwan-Vietnam Agreement is going to be very effective at winning compensation for investors.  Instead, if I was a Taiwanese investor, I would think about invoking the Vietnam-China BIT.  True, that agreement is limited to natural persons and economic entities who have the “nationality of the People’s Republic of China”, but it is not entirely clear this would exclude the PRC’s “Taiwanese compatriots” who are officially treated in China as “nationals” for some purposes.  Even if this argument doesn’t fly, many of the Taiwanese companies in Vietnam may have Chinese national employees or entities that could make a claim on their behalf.  Of course, this would be pretty bad PR here in Taiwan, where no one really wants to be associated with the Chinese government.  But if they managed to get an ICSID tribunal constituted, a Taiwanese investor has a much better chance to forcing Vietnam to pay out compensation under the Vietnam-China BIT than the Vietnam-Taiwan agreement.  Another example of why being a non-state is such a pain for Taiwan and the Taiwanese.

A Post-Snowden world? Criminalizing Chinese cyberespionage

by Duncan Hollis

Three quick (and thus tentative) thoughts on the BIG news out of the Justice Department a few minutes ago, announcing criminal charges against five officers of the Chinese People’s Liberation Army for hacking various U.S. industries, including Westinghouse and US Steel.  The Justice Department offered fairly detailed descriptions of how the hackers obtained information that had direct economic consequences for US companies, whether in terms of stealing design specs or pricing plans.  As a result, I don’t have much doubt that the evidence establishes behavior violating U.S. cyber crime laws as written. That said, this is still, as Holder himself admitted, an unprecedented move.  It’s not every day the U.S. government charges military officers with criminal behavior that was presumptively authorized by the foreign government itself.  Doing so suggests, not too subtly, that the real criminal here was China:

When a foreign nation uses military or intelligence resources and tools against an American executive or corporation to obtain trade secrets or sensitive business information for the benefit of its state-owned companies, we must say, ‘enough is enough.’ This Administration will not tolerate actions by any nation that seeks to illegally sabotage American companies and undermine the integrity of fair competition in the operation of the free market. This case should serve as a wake-up call to the seriousness of the ongoing cyberthreat. These criminal charges represent a groundbreaking step forward in addressing that threat.

For more background, you can watch the press conference here or read the prepared statements by Holder and others.

My first reaction was that these charges aren’t really about prosecuting the named officers, but of signaling to the world that the United States wants to change the status quo when it comes to State-sponsored cyber-exploitation.  The fact that States engage in cyberexploitation has long been widely known, but so far, the prevailing response has been a shrug of the shoulders — the theory being that spying cannot be regulated away so why bother trying.  These charges suggest a political effort, however, to do just that — i.e., to try and change the volume or nature of State-sponsored cyber-exploitations at least when it comes to impacts on private commercial actors.  I say a “political effort” since I very much doubt these charges will amount to much within the U.S. legal system.  Simply put, these five officers are not going to appear in a US courtroom to face the charges against them. I suppose it’s possible (although implausible) that China could express surprise at the U.S. evidence and announce its own investigation with some lip service about shutting rogue actors down or holding accountable those responsible. But, even in such a case, I can’t see China handing them over to the United States.  Much more likely, I suspect will be Chinese protestations of “trumped-up” charges or “false” evidence by the U.S. Government.  As such, assuming they don’t vacation abroad, these officers are unlikely to face any negative consequences; on the contrary, I’d bet they’ll probably be lionized in some ways at home.

My second reaction was that of a law professor, asking in a hypothetical world where these officers somehow did end up before a U.S. court, what would happen then?  I assume there’d be a claim by the defendants of sovereign immunity and, for the reasons stated above, I doubt the Chinese government would dispute such immunity.  This would, in turn, raise interesting questions about whether the Foreign Sovereign Immunities Act would grant immunity from prosecution to these officers or whether the Justice Department could successfully invoke one of the statute’s exceptions. Based on the repeated references in this morning’s press conference to the ‘commercial’ nature of the Chinese cyberexploits, I’d guess DOJ’s theory is that it can proceed under the FSIA’s commercial activities exception, which affords federal jurisdiction to cases “in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.”  I know many of our readers are expert in sovereign immunity issues, so I’d be interested in your reactions — do these officers have a legitimate claim for sovereign immunity?  Or, might they invoke some other status-based immunities and with what likely results?

My third reaction was that these charges represent the official start of a Post-Snowden era. For the better part of a year, Snowden’s revelations have dominated almost all discussions of cyber activities involving the United States.  To be sure, the United States has tried to rebut some of the allegations or recast others in a more positive light, with pretty mixed (some might say poor) results.  Indeed, every time, the United States tried to move on, there was some “new” revelation waiting in the wings to forestall that effort.  In recent weeks, however, Snowden-related disclosures have slowed, while at the same time the United States has had some diplomatic successes (see, e.g., the NETmundial final statement ).  Thus, there’s certainly space today that wasn’t present a few months ago for the United States to try and refocus the conversation.  I wonder if this explains the timing of these charges.  After all, U.S. complaints against China were a central plank in U.S. cyber-policy pre-Snowden, so it’s not surprising they’ve been looking for an opportunity to get back on the offensive when the circumstances were ripe for it.  Whether this offensive will be successful remains, of course, to be seen.  It’ll bear close watching how China responds to these charges, both publicly (i.e., in defending its officers or launching counter-charges against US officials) and privately (will there by an escalation of cyber operations by China or others).  But whatever China does, I suspect we’re going to witness renewed attention to the question of whether all cyber-espionage is really the same (i.e., can we distinguish, as the U.S. urges, between State-sponsored hacking for national security interests vs. State-sponsored hacking for economic gain).  I’d hope, moreover, that part of that conversation will involve the question of what role law can play, if any, in regulating cyber-espionage, whether as a matter of domestic or international law. 

Weekly News Wrap: Monday, May 19, 2014

by Jessica Dorsey

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

Africa

Asia

Europe

  • The defense case of Ratko Mladic, a former Bosnian Serb army general, opens at the ICTY today; Mladic is accused of orchestrating the massacre of almost 8,000 Muslim boys and men in Srebrenica.
  • Saudi Arabia is considering trade sanctions against the Netherlands because of stickers printed by far-right politician Geert Wilders which display anti-Islam slogans in the colors of the Saudi flag.
  • Russia came under heavy criticism at the WTO from several of its trading partners, who raised sharp questions over whether Moscow – one of the global trade body’s newest members – is indeed adhering to the international trade commitments that it took on less than two years ago.
  • The West should impose tougher sanctions on Russia, which is waging a “hidden war” in eastern Ukraine, Ukraine’s acting Foreign Minister Andriy Deshchytsia said in an interview.

Middle East and Northern Africa

Americas

  • China’s “provocative” actions in maritime disputes with its neighbors are straining ties with the United States, raising questions over how the world’s two biggest economies can work together, a senior U.S. official said.
  • Canada broke with the United States and did not impose sanctions on two key allies of Russian President Vladimir Putin because the pair had Canadian business interests, according to sources familiar with the matter.

UN/Other

Events and Announcements: May 18, 2014

by An Hertogen

Call for Papers

  • The Dennis J. Block Center for the Study of International Business Law will sponsor a Scholars’ Roundtable on October 10, 2014 at Brooklyn Law School.  Scholars writing in a diverse range of fields related to international business law are invited to submit proposals to present works in progress for an intense day of discussion with other scholars in the field.  Participants will be expected to read all papers in advance of the Roundtable and offer commentary on each of the presentations. Scholars selected for the Roundtable will receive a $500 stipend from Brooklyn Law School to defray the cost of attendance.  Applicants should submit a 3-5 page proposal to Robin Effron by June 13, 2014. Scholars selected to present at the Roundtable will be notified by June 30, 2014.
  • The call for papers by the ASIL International Economic Law Interest Group for its 2014 Biennial Research Conference, to be held at the University of Denver’s Sturm School of Law, on November 13-15, 2014 has been extended until June 30. The theme of the conference is “Reassessing International Economic Law & Development: New Challenges for Law & Policy”. They strongly encourage scholars, practitioners, and advanced graduate students to submit proposals to present original research on the theme topic, or on other areas of international economic law. You do not have to be an ASIL or Interest Group member to participate. The full call for papers can be downloaded here. Please contact IEcLIG Co-Chairs Jason Yackee & Elizabeth Trujillo with any questions.

Events

  • The European Society of International Law (ESIL), together with the law firm Stibbe, will co-organize a lunctime lecture entitled: Ethics in International Disputes. This lecture will be delivered by Judge Jean-Pierre Cot, Judge at the International Tribunal for the Law of the Sea and former ad hoc Judge at the International Court of Justice, on Tuesday, 3 June 2014, 12h00 at the office of Stibbe, Central Plaza, Loksumstraat 25 Rue de Loxum, 1000 Brussels. Judge Cot’s address will be followed by comments in response by Françoise Lefèvre, Partner and Global Head of Arbitration at Linklaters in Brussels. Opening and closing remarks will be provided by ESIL President Laurence Boisson de Chazournes, Kathleen Claussen, ESIL member, and Bart Volders, Partner at Stibbe. A light sandwich lunch will be available. There is no cost to attend, but registration is required as space is limited. Please register here by May 27, 2014.
  • ALMA and the Radzyner School of Law of the Interdisciplinary Center (IDC) would like to invite you to the next session of the Joint International Humanitarian Law Forum. The session will be held on Wednesday, May 28, 2014, 18:30 in room C110 (Arazi-Ofer Building, 2nd floor) in the IDC. Topic of the session is The Palestinian Accession to IHL Treaties. Professor Robbie Sabel and Keren Michaeli are the discussants. More information is here

Announcements

  • PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, University of Oslo – has advertised three postdoctoral positions: one in international criminal law, one in international environmental law and one in international investment tribunals. More information is here.
  • The Department of Law at NUI Maynooth invites applications for two Professor/Senior Lecturer positions in law. Applications close on May 22, 2014. More information is here.
  • The Editorial Board of the European Journal of International Law is delighted to announce the launch of the Journal’s official podcast, EJIL: Live! Regular episodes of EJIL: Live! will be released in both video and audio formats to coincide with the publication of each issue of the Journal, and will include a wide variety of news, reviews, and interviews with the authors of articles appearing in that issue. The first video episode features an extended interview between the Editor-in-Chief of the Journal, Joseph Weiler, and Maria Aristodemou, whose article “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours” appears in issue 25:1. The first audio episode features a shorter, edited version of the same interview, as well as conversations with the Journal’s Book Review Editor, Isabel Feichtner, and the Editors of EJIL: Talk!, Dapo Akande and Marko Milanovic.
  • The American Society of International Law’s (ASIL) Women in International Law Interest Group (WILIG) is now launching the second year of its mentoring program for ASIL and WILIG members, matching female law students or new professionals with experienced female international lawyers. This mentoring program is the first of its kind in the international law arena and is designed to foster a new generation of female international lawyers. The first year was a great success, with mentoring groups operating across the United States, and reaching around the world to Canada, Geneva, The Hague, and London. The Program is not designed to match mentees to a mentor with her exact areas of interest, but is rather designed to provide the mentee with general guidance and advice that she can individuate.  When possible, ASIL will try to match mentees to mentors with similar interests.  Mentoring takes place in a group setting, with a maximum of four mentees for every mentor.  Mentors and mentees meet in person seven times during the course of a year to discuss topics and engage in activities designed to help women enter and be successful in the field of international law.  Upon finishing the requirements of the one-year program, all mentees receive a certificate of completion. 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 with a one-paragraph description of your announcement along with hyperlinks to more information.

Weekend Roundup: May 10-16, 2014

by An Hertogen

This week on Opinio Juris, the NYU Journal of International Law and Politics brought you a symposium on Professor Jedidiah J. Kroncke’s article Property Rights, Labor Rights and Democratization: Lessons From China and Experimental Authoritarians. In their comments, Cynthia Estlund looked at parallels with the US, Eva Pils pointed to a discrepancy in transnational civil society’s concern for labour and evictee rights in China, and John Ohnesorge reflected on why labor issues have not received much attention in the world of law and developmentJedidiah Kroncke’s response can be found here.

Kevin added the Security Council’s refusal to pay for any expenses related to an ICC investigation in Syria as another reason to be skeptical about the likelihood of a referral. More on Syria in a two-part guest post by Naz Modirzadeh who responded to the open letter to the UN on humanitarian access to Syria.

Deborah shared her opinion on the Al Nashiri case and the question whether an armed conflict existed. In another guest post, Ezequiel Heffes offered four arguments why international humanitarian law covers detention in non-international armed conflicts.

Finally, Duncan looked at the US job market for international law academics, and Peter wondered if an “anti-passport” could be helpful to deal with the FATCA woes of potential Americans overseas.

As every week, Jessica wrapped up the news and listed events and announcements.

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

Guest Post: Detention in NIACs: A Pledge in Favour of the Application of IHL

by Ezequiel Heffes

[Ezequiel Heffes holds an LL.M., Geneva Academy of International Humanitarian Law and Human Rights and is a lawyer, University of Buenos Aires, School of Law.]

Recently, the High Court of England and Wales delivered a judgement in Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB) holding, among other things (see here for an explanation of the whole case), that the United Kingdom lacks detention authority under international humanitarian law (IHL) with regard to individuals it captures in the course of the non–international armed conflict (NIAC) in Afghanistan. In the present case, Justice Leggatt held that Common Article 3 (CA3) and/or Additional Protocol II (AP II) do not provide legal power to detain in the context of NIACs.

Much has been written about this in the blogosphere (see here, here, here and here by Gabor Rona a few years ago). From a theoretical perspective, these writings have raised several interesting arguments. This post, however, will focus on certain practical issues.  I will offer four arguments to suggest that it would be simply counter–intuitive not to recognize that IHL already regulates detentions in NIACs, even though it seems to be explicitly silent on this question.

The protection gap argument

The fact that CA3 and AP II neither mention internment nor elaborate grounds of detention has led to different positions on the legal basis for internment in NIACs. International bodies have prohibited such actions in cases other than when it is necessary for reasons related to the conflict. Here, the Inter–American Commission affirmed with regard to detentions carried out by the Colombian AOGs that “international humanitarian law also prohibits the detentions or internment of civilians except where necessary for imperative reasons of security”. The same view was held by the UN Commission of Human Rights (Resolution 1995/77) when it appealed to AOGs to refrain from “arbitrary” detention of civilians. As Zegveld points out, these bodies seem to have derived this prohibition from the IHL applicable to international armed conflicts, in particular Geneva Convention IV (Zegveld, Accountability of Armed Opposition Groups, at 65).

On the other hand, other resolutions by the UN Commission on Human Rights, such as Resolution 1995/74, deny that IHL permits certain civilian detentions on the grounds that human rights law is, in principle, a body of law only addressed to States, and only States have authority to arrest and detain persons. This would mean that, in the present case, IHL is silent while the international human rights law (IHRL) provision on arbitrary detention (Article 5 ECHR) would only be applicable towards the UK. This, however, represents a protection gap for detainees held by AOGs during the NIAC.  If IHL and IHRL do not apply upon them, then AOGs are able to operate within a legal ‘black hole’ and can in principle detain with impunity from an international law perspective (Somer, at 667–668). This necessarily implies that those detained by non–state actors have less protection than those detained by States, a situation that in the context of an armed conflict could not exist since IHL recognizes the principle of the equality of the parties (see the fourth argument by Kubo Mačák).

The judicial guarantees argument

CA3 affirms that “the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized people” is prohibited with respect to protected persons. Article 5 of AP II complements this by including several standards based on the more rigorous provisions of GC III and IV.

These provisions and possible detentions in NIACs should be seen through the same prism. Indeed, by granting AOGs the possibility to “regularly” constitute courts and to legislate in order to meet the judicial guarantees component (CA3), States have recognized AOGs’ legal capacity to run a parallel non–state legislative and judicial system outside of State authority (Somer, at 657). If States have accepted this guarantee (and therefore AOGs can declare someone innocent or guilty, or even permitting the person detained to challenge his or her detention), it would be simple logic to accept that they can also detain individuals under the same legal framework. In fact, they are both related since the application of judicial guarantees may serve to prevent indefinite detention in either situation.

The hostage taking argument

Alternatively, if AOGs are not able to detain members of State forces, then there is no practical difference between that situation and hostage taking, which is forbidden by CA3. The 1979 Convention against the Taking of Hostages provides a useful definition: “any person who seizes or detains […] in order to compel a third party, namely, a State […] a natural or juridical person, a group of person, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages […]”. Even though it was not drafted with a NIAC in mind, the definition contained therein could be considered appropriate in times of armed conflicts (Prosecutor v. Sesay, Kallon and Gbao, para 579) and might cover AOG detentions in the absence of authority under IHL.

As Sivakumaran explains, the means by which an individual enters the custody of the hostage–taker may be through lawful and unlawful means (Sivakumaran, The Law of Non–International Armed Conflicts, at 269). Certainly, the “hostage” label would come after the person has been taken away, regardless of how he or she is taken, but having in mind that an AOGs’ detentions will always be illegal under domestic legislation and not regulated as such by international law, the only characterisation that could frame such conduct under the latter regime would be the “hostage–taking” one. If AOGs cannot detain under IHL, then every person under their control against their will would be a hostage and therefore each detention would constitute an automatic violation of international humanitarian law.

The realistic argument

If none of the abovementioned arguments are enough, then we should just move towards a more realistic approach. This alternative proposes that it is simply unreasonable to consider that AOGs cannot detain individuals from an IHL perspective. As Sassòli (at p. 19) correctly suggests, “[p]arties to armed conflicts intern persons, hindering them from continuing to bear arms, as to gain a military advantage. If the non–state actor cannot legally intern members of government forces it is left with no option but either to release the captured enemy fighters or to kill them”. This implies that AOGs’ members might attack government soldiers instead of trying to legally arrest them. Even if under domestic law the killing of State forces is inherently illegal, no one says that it is prohibited per se under IHL. Yet, according to Sassòli’s argument, we could simply analyse possible detentions by AOGs from a “military advantage” perspective.

To conclude

This post has attempted to demonstrate some possible arguments as to why detentions in NIACs should be logically framed under IHL having in mind the recent decision in Mohammed of the High Court of England and Wales, which held the IHL to authorize such detentions. Certainly, these arguments do not solve all the issues raised in the context of NIAC detentions, but there can (and should be) room for new paradigms, particularly in light of how NIACs operate in the real world and the practical protection concerns that arise if the law were to remain truly silent.

NYU JILP Symposium: Response to the Commentary on Property Rights, Labor Rights and Democratization

by Jedidiah Kroncke

[Jedidiah J. Kroncke is currently Professor of Law, Fundação Getulio Vargas Law School at São Paulo.]

This post is part of the NYU Journal of International Law and Politics Vol. 46, No. 1 symposium. Other posts in this series can be found in the related posts below.

I want to again thank the editors at NYU JILP for their work organizing this symposium, and express my gratitude to Cynthia Estlund, John Ohnesorge, and Eva Pils for their efforts to engage my article. The following only incompletely addresses their many insightful comments.

1) Who Should Promote Legal Change in China?

Professor Pils points to a possible agnosticism in my paper as to who should be advocating for legal change in China. I agree it is crucial to clarify.

Nearly twenty years ago I made my first trip to China as very unworldly teenager. Shortly after my return I had the chance to hear Chinese expat activist Harry Wu speak about his personal experience with and the continued reality of forced labor camps in China. After his talk, I confidently stood and told Wu that China’s progressive economic liberalization would soon bring about an inevitable tide of democratization. As such, his concerns about human rights were inherently ephemeral and shouldn’t undermine unrestrained US economic engagement with China. Wu graciously expressed that he was encouraged that young people in the US were taking such an interest in China. I still look back in half-belief and full-regret at the audacity of my comment that day.

At the time, I imagined my future as one of the US lawyers who would make a career bringing to China this self-gratifying blend of justice and profit. It would take several years before I questioned this faith, and accept the utterly tangential relationship of my intentions to China’s legal development. My turn to anthropology to complement my legal studies stemmed in large part from my desire to understand the continued pervasiveness of misconceptions about Chinese law and US lawyers’ role therein.

I recount this not simply out of contrition, but to make clear that my commitment to critical comparative law is an outgrowth of my firm belief that the true agents of change in China will be its own citizens. Further, more often than not the idea that China can be changed through outside expert interventions obfuscates at best and complicates at worst efforts by Chinese activists to engage with foreign interlocutors or learn from foreign legal experience. [See generally Jedidiah Kroncke, Law and Development as Anti-Comparative Law, 45 Vand. J. Transnat’l L. 477, 544–45 (2012).] In contrast, I believe that a genuine practice of comparative law can be a crucial practical and moral support to Chinese activists and intellectuals to whom we may feel sympathetic. And it is in this spirit that the paper was written.

2) Labor Law and Comparative Development

Professor Ohnesorge’s application of Putnam’s two-level game to the selection of international legal reform projects succinctly clarifies a dynamic I left only implicitly articulated in the paper. It helps drive home the point that whatever rhetorical support is given to democratization internationally and in the US is secondary to other priorities in engagement with China. It also make clears that if there is a foreign sponsored legal reform project in China, it has been judged non-antagonistic to the interests of the CCP, or at least taken as an experiment that can be revoked if later judged to be so. The fate of many once touted foreign funded reform projects have been subject to this dynamic.

Herein I hesitate to embrace Professor Estlund’s claim about the difference between the interests agitating against collective labor rights in China and the US. While unions are associated with the Democratic party in the US, I view both sets of interests as most fundamentally averse to “small D” economic democracy. This is perhaps why I also feel some discomfort with the explanatory power of claiming that China and the US are at difference phases of economic development. Unionization was an issue in the US from the very outset of industrialization, and certainly some economically developed countries continue to have strong unions. I think the commonalities of struggles over economic democracy are fairly universal to all non-subsistence economies.

Even so, teasing out a full comparative analysis of the relationship of unions to economic democracy would certainly require much more sensitivity to Professor Ohnesorge’s critical distinction between public and private sectors unions. My claim about the CCP’s fears about labor activism is grounded in labor’s political potential that is often complicated in the public sector because of its internal position to the regime. However, I am of also wary of Ohnesorge’s descriptive claim that private unionization necessarily undermines export competitiveness, though it potentially dampens the return on capital. Here I can connect Opinio Juris to the greater blogosphere frenzy over Thomas Piketty’s assertion of the growing intensity of r>g.

In the end, what Professor Estlund notes is certainly right – the CCP is observing legal developments in the US labor law and not for reasons we may find flattering. Following this insight, I look forward to the fruits of Professor Estlund’s recent turn to comparative engagement with Chinese labor. [Cynthia Estlund and Seth Gurgel, Will Labour Unrest Lead to More Democratic Trade Unions in China?, in CHINA AND ILO FUNDAMENTAL PRINCIPLES AND RIGHTS AT WORK (ROGER BLANPAIN, ULLA LIUKKUNEN, & YIFENG CHEN, ed., 2014).]

3) The Relative Position of Labor and Property Rights in China

Professor Pils testing of the paper revolves around how I comparatively situate labor repression in China to property rights repression. I regret if my discussion of property rights gives the impression that I do not think expropriation is a very real site of massive injustice in China, or that there is not a great deal of committed Chinese activism and protest in reaction to this. I had hoped that the paper would convey how proactive Chinese citizens have been about challenging injustices on a number of fronts, and historically so, to counteract the still persistent idea that they are comparatively passive or anti-legal. I look forward to the publication of Professor Pils book on human rights lawyers in China [Eva Pils, CHINA’S HUMAN RIGHTS LAWYERS: ADVOCACY AND RESISTANCE (forthcoming, 2014)], and also heartily recommend Rachel Stern’s recent book on Chinese environmental activism. [Rachel Stern, ENVIRONMENTAL ACTIVISM IN CHINA: A STUDY OF POLITICAL AMBIVALENCE (2013).]

Further, Professor Pil’s citation of recent crack-downs on any form of Chinese activism reflects the new CCP administration’s recent inauguration of a systemic campaign against almost all activists such as Xu Zhiyong and the New Citizens’ Movement. In the haze of this crackdown, it can be hard to see any comparative claims of repression as meaningful.

And I certainly did not mean to argue that the CCP is “genuinely supportive of private property rights.” The Party sees property rights in strictly utilitarian terms and subordinate to policy objectives. [The best single paper on the topic is Frank K. Upham, From Demsetz to Deng: Speculations on the Implications of Chinese Growth for Law and Development Theory, 41 N.Y.U. J. Int’l L. & Pol. 551 (2009).] This is exactly why Chinese activists understand that genuine property rights are fundamentally a political issue in the current context.

Yet, I still hold that associative labor activism is most central to the CCP’s fears about political unrest. This is the lesson of Li Wangyang and the Tiananmen aftermath and powerfully articulated in Ching Kwan Lee’s tour de force Against the Law. [Ching Kwan Lee, AGAINST THE LAW (2007).] Pils is correct that the CCP has been willing to force workplace concessions on employers to help quell unrest, and that activists who focus solely on workplace issues without reference to organizing can channel discontent to elicit official responses. But no matter the official mood, no toleration ever has been extended to private union organizing.

This is why I place Chinese developments in the context of the global experience of labor activism that emphasizes the essentially collective nature of workplace organizing. Associative labor rights address the basic structure of ongoing employment relationships that most all citizens are subject to. It is not a denigration, but simply a logistical reality that as widespread as property rights violations are, they are functionally episodic and based on the exclusionary logic of ownership. This is likely why property rights movements have not been to date highlighted as vectors of democratization via sustained movement solidarity. And I should add that activism on environmental issues, another possible source of widespread movement solidarity, has an ambivalent relationship to strong individual property rights.

Moreover, while the CCP’s experimentations with property rights may not be genuine from an ideal rule of law perspective, it does matter that they have taken specific legal form. The granting of long-term leases and the heated debate over their renewal, the formation of homeowner associations, and especially the ongoing issue of “minor property rights” all are real technical legal developments. The CCP could hypothetically abjure all elite and foreign property rights, but these developments still reflect the very real experimental process by which the CCP allows for regulatory diversity even if it ultimately decides to retroactively reject some such experiments.

In contrast, there is no such regulatory experimentation with associative labor rights. There is experimentation with non-associative labor rights, but only those that generate individuated claims. Tim Webster’s study of the limits of employment discrimination activism here is most telling, [Timothy Webster, Ambivalence and Activism: Employment Discrimination in China, 44 Vand. J. Transnat’l L. 643, 692 (2011)] as is Anita Chan’s prescient fear that employment law experiments will in fact sap life from associative labor organizing.[Anita Chan, Revolution or Corporatism? Workers and Trade Unions in Post-Mao China, 29 Australian J. Chinese Aff. 31, 52 (1993).]

The type of union election experimentation Professor Estlund discusses is one such experiment that sits on the razor edge of ACFTU unions as an instrument of government policy or as truly representative bodies. If such experiments prove unruly, the CCP will attempt to shut them down. But there is always a risk to social experiments. If the Chinese people continue to agitate and force a shift in the risk tolerance of the CCP for such reforms, the limits of the CCP’s containment strategy may be reached. Even so, I am happy to be proven wrong if such limits are breached by other areas of social activism, and it is notable that what fear the CCP has of the New Citizen Movement is not its ideas, but is potential for organizing.

4) Where to Go From Here?

The commentators all help demonstrate that there are few global bright spots for collective labor rights today. While hopeful moments can be seen in the US, China, or elsewhere, the truth remains that outside of a few outliers, the de-democratization of global labor regulation shows no sign of decline. [For a hopeful take see Alvaro Santos, Three Transnational Discourses of Labor Law in Domestic Reforms, 32 U. Pa. J. Int’l L. 123 (2011).] And the progress of individual employment rights, however desirable and justified in themselves, are at best tools within larger labor movements but insufficient for generating them.

Professor Ohnesorge’s citation of South Korea speaks to his own many comparative contributions using the Northeast Asian example [John K.M. Ohnesorge, Developing Development Theory: Law and Development Orthodoxies and the Northeast Asian Experience, 28 U. Pa. J. Int’l Econ. L. 219 (2007)], and the variety of configurations that unions can play even in non neo-liberal states. He expands on the arguments in my paper with the provocation that the renewed interest in state-led developmental models might, even in democracies, further complicate the global future of private unions. Developmental states do not tend to accommodate the pluralism and bottom-up bargaining inherent in wide-spread private unionization. Notably, a great deal of the burgeoning literature on comparative takings has also focused on the abuses of state-led developmental regimes. The fact that such regimes are often heralded as an alternative to the Washington Consensus does thus not necessarily establish that they will buck the global trend on labor regulation.

As Professor Ohnesorge also notes, it is not unrelated that I recently left the US to take a position at Direito GV in Sao Paulo, a new school uniquely committed to producing and indigenizing comparative legal knowledge in Brazil. Brazil possesses what many would consider a very strong system of mandatory sectoral union participation and contribution. Yet even after much recent progress, economic and political inequality are pressing national issues. The differences between Brazilian unionization, formally private but quasi-corporatist in operation, with both the US and Chinese models has already challenged my thinking on the relationship of unionization to economic democracy and development. It is a triangulation I am far from coherently working out, but one I hope will continue my growth as a comparativist. Early next year I will participate in a conference on the “Beijing Consensus” at the National University of Singapore by discussing how segments of Brazilian society differentially interpret the comparative lessons of China’s state-led developmentalism – and in doing so almost uniformly elide CCP labor regulation.

I am again very appreciative for the comments and look forward to drawing these insights into my future work. These are thorny topics that inspire great passion, and I am lucky to have had the opportunity to subject my work to such expert scrutiny.

NYU JILP Symposium: John Ohnesorge Responds to Jed Kroncke

by John Ohnesorge

[John Ohnesorge is currently Professor of Law at the University of Wisconsin Law School .]

This post is part of the NYU Journal of International Law and Politics Vol. 46, No. 1 symposium. Other posts in this series can be found in the related posts below.

I completely agree with Professor Kroncke that the world of law and development, both scholarship and practice, has not paid enough attention to labor, and applaud him for addressing this deficit. Even defining development in purely economic terms, the regulation of labor is obviously relevant to GDP growth, as well as to how the economic pie is distributed. If one defines development to also include democratization, then the legal regime governing the ability of labor to organize and to participate in the political process is obviously important as well. As Professor Kroncke argues, labor has clearly been a force for democratization in some successful political transitions, and in established democracies organized labor generally plays an important role in determining economic and social policy. My response to Professor Kroncke’s fascinating paper is to offer some ideas about why labor issues seem so hard for the law and development regime to take on, and to suggest a framework for further research on that topic. The first part of my response focuses on the general issue of how legal fields get on the law and development agenda, and the second part suggests why labor issues may be especially likely to be excluded when countries are pursuing development strategies associated with the “developmental state” concept, which many are now doing.

A legal technical assistance effort, whether carried out by an organization like the World Bank or by an arm of a national government like USAID, will involve an international negotiation that can be modeled in terms of what Robert Putnam called “the logic of two-level games.” [Robert D. Putnam, Diplomacy and domestic politics: the logic of two-level games, 42(3) Int’l Org. 427 (1988).] The immediate actors on both the exporting and importing sides of the legal assistance negotiation will not be unitary free agents, but will instead be constrained by the contexts within which they operate. The image in Putnam’s classic article is of the negotiators each simultaneously being engaged in two games, one with each other, and one with their respective national constituencies. To succeed, legal reform initiatives must have made it to each side’s own list of desired reforms, and then have survived the negotiation process between the two sides.

Viewing expansive legal protections for organized labor through this lens, it should not surprise us if they often don’t survive the two-level game, while property rights or other reforms seem more likely to. From the point of view of the law reform exporter, even if the immediate actor, for example USAID under President Obama, wants to support organized labor abroad, the ability of USAID to pursue that position in international legal aid activities is likely to be constrained by the influence in U.S. domestic politics of business interests who do not favor the rise of organized labor in countries within which they produce. Law reform projects focusing on property rights or contract law are less likely to encounter opposition from the exporter’s local constituents, so for that reason alone are more likely to stay on the international agenda. Legal development projects of the World Bank or the IMF are not as sensitive to national politics, but they are constrained by the politics of their governance structures, which are themselves responsive to the wishes of national governments.

With respect to importing side of the game, even if international actors do decide to actively advocate for expansive labor protections, developing country governments may have reasons for not sharing that enthusiasm, even if they are generally in favor of promoting development, and even if they are democratic. The role of organized labor in the development context will depend on what general model of development a country follows, and that will depend on both the government’s own preferences, and the constraints the local political and social context places upon the government. If local forces are too strongly arrayed against organized labor it will not succeed as a law and development project, even if both the local government and the international actor would otherwise be in favor. On the other hand, if the developing country government and its local constituencies both favor strong protections for organized labor one might expect them to just enact them on their own, with no international involvement.

In addition, even if one feels strongly committed to organized labor, it is important to explore why even governments who sincerely favor development might approach it with caution. Here it will be helpful to consider Professor Kroncke’s critique of China’s corporatist labor regime in light of Northeast Asia’s “developmental states,” which were lauded by the World Bank as examples of “growth with equity,” [World Bank, The East Asian Miracle (1993).] and which are often cited in current attempts to theorize more state-centric, post-Washington Consensus approaches to development. China’s authoritarian corporatist labor regime is in some ways unique, but it is not so different from the approach followed by South Korea during it’s high growth era of the 1970s and 1980s, notwithstanding that China’s government purports to be of the Left, while South Korea’s was considered to be of the authoritarian Right. [On South Korea’s labor regime, see generally, James M. West, South Korea’s Entry Into the International Labor Organization: Perspectives on Corporatist Labor Law During a Late Industrial Revolution, 23 Stan. J. of Int’l L. 477 (1987).] Even if they are in favor of rapid, market-oriented economic development, it is not surprising that authoritarian governments such as China’s are attracted to state-dominated systems of corporatist labor regulation for purely political reasons. In my view, Professor Kroncke’s paper raises perhaps even more challenging issues for countries such as Brazil, where he now works, that wish to be “new developmental states,” to be vibrant democracies while also retaining a large role for the state in supporting and guiding economic development.

Professor Kroncke does not focus on the different implications that might follow from strong unions in the private versus the public sector, but while they both raise challenges for an erstwhile developmental state, the implications are different. Looking first at public sector unions, the East Asian developmental states were characterized by civil service bureaucracies known for being highly meritocratic and professionalized, yet also lean in the sense of not constituting a major drain on government resources. This was certainly part of the reason observers described the East Asian developmental states as “hard” with respect to social and political forces, able to enjoy a comparatively high level of autonomy and flexibility in implementing industrial policy. Strong public sector unions may be desirable for other reasons, but it seems clear that they contribute to a politicization of the bureaucracy, they introduce rigidities in policy implementation, and they may contribute to an expensive bloating of the public sector workforce. Any developing country interested in the developmental state model will have to grapple with how to maintain the insulation and technocratic expertise of its economic bureaucracy, and will also have to keep public sector spending under control so as to maintain fiscal discipline. Strong unionization rights in the public sector will be in some tension with these goals for any developmental state, even one strongly committed to democracy. An expansive role for private sector unions will be in some tension with another characteristic of the classic developmental state, which is the ability to keep wage growth roughly in line with productivity gains. This is important for the export competitiveness of local manufacturers, as well as for the attractiveness of the country for foreign direct investment. For a developmental state to be truly developmental wages must rise, but export-orientation and openness to FDI both require that wages remain globally competitive. A government that wishes to purse a developmental state model involving export orientation and attractiveness to FDI may be reluctant to share control over wages and other labor issues with truly independent unions, even if it is otherwise committed to democracy.

Although it would be quite an irony if true, the more free-market development strategies associated with neoliberalism might be able to accommodate strong unions as effectively as developmental state approaches that call for the state to be actively involved in administering industrial policy and maintaining national competitiveness. To neoliberalism, strong unions might be an unfortunate cost of doing business. To the developmental state model, however, strong unions present almost existential challenges, certainly in an authoritarian context such as China’s, but perhaps also in a democracy. Professor Kroncke’s paper challenges us to explore these important issues, and it will be interesting to see how they play out as more developing countries experiment with the policies of the developmental state.

Circling Back to that Existence of Armed Conflict Discussion

by Deborah Pearlstein

Last week saw a set of posts, across the law-and-security blogs, about whether an armed conflict existed at the time current commission defendant Abd Al Rahim Hussayn Muhammad Al Nashiri was allegedly involved in planning the October 2000 bombing of the U.S.S. Cole. See, e.g., Frakt, Vladeck, Heller, and Margulies. While I’ve written about this at length elsewhere, after reading the posts, I find myself disagreeing (at least in part) with pretty much all of my friends on the question of who can/must decide the answer to the existence-of-armed-conflict question. Here’s my thinking. Continue Reading…

NYU JILP Symposium: Promoting democracy from within: The role of rising civil society in taking on authoritarian government in China

by Eva Pils

[Eva Pils is currently Associate Professor at the Chinese University of Hong Kong, Faculty of Law and a Non-resident Senior Research Fellow at NYU Law School’s U.S.-Asia Law Institute. Her scholarship focuses on human rights in China, with publications addressing Chinese human rights lawyers, property law and land rights in China, the status of migrant workers, the Chinese petitioning system, and conceptions of justice in China.]

This post is part of the NYU Journal of International Law and Politics Vol. 46, No. 1 symposium. Other posts in this series can be found in the related posts below.

Kroncke criticises authoritarian and post-authoritarian countries’ governments such as the Chinese government, western governments such as that of the U.S., and transnational entities such as the World Bank for selectively promoting the protection of private property rights, while repressing or being indifferent toward the promotion of collectively exercised labour rights, in particular associative rights such as the right to strike. The paper’s main point is that there is an inconsistency in this approach, which Kroncke describes as a ‘promotion paradox.’ He argues that suppression of associative labour rights, which is detrimental to democracy, also occurs in the United States, and that this ‘begs the question of whether we can sustain the idea that political and economic liberty are interconnected.’

The overall argument is persuasive and important. It reminds us that democratic countries can deteriorate and become more authoritarian if they suppress basic rights, and it has implications for certain rule of law promotion initiatives in authoritarian systems. But I have some criticisms. First, I don’t think that the Chinese government is uniquely suppressive of labour rights activism – in fact, there is some reason to believe that labour activism fares better than evictee activism for property rights. Second, Kroncke seems to limit himself largely to observing that there is an inconsistency in the promotion of certain rights abroad without saying clearly that or by whom property, labour rights or democracy should be promoted. The paper could take a clearer position on this point. Third, Kroncke could strengthen his argument by acknowledging that Chinese civil society has long recognised the connection between political and economic liberty.

The basic strands of the prevalent arguments Kroncke identifies and criticises – pro-private-property, anti-labour rights – are associated with utilitarian, consequentialist, economic efficiency considerations. Essentially, the argument is that collective labour rights are bad for economic growth, for instance because they drive up labour costs, whereas private property rights are good for growth, as they help protect wealth and promote its accumulation. Kroncke shows that those purporting to promote democratisation in currently non-democratic countries have used these types of argument to criticise the role of labour rights activism in emerging or developing economies, even as they have advocated stronger protections of private property rights. Authoritarian and post-authoritarian regimes, in turn – China in particular – have been able to accommodate the promotion of private property rights to some extent, because limited protection of property rights does not directly threaten the foundations of their undemocratic rule. Regimes of this kind protect private property in ‘experimental’ fashion.’ By doing so they can secure support from some social groups, which is one reason they maintain power. In China, for example, the property regime has allowed the State to take land from current owners or legitimate occupants , and give newly created use rights in that land to emerging elites. These new rights appear to be relatively well-protected, whereas the rights and legitimate interests of evictees are easily crushed.

Kroncke shows that both strands of the argument constituting the promotion paradox are flawed, in part because they rely on empirically unsupported assumptions about what helps economic growth, and in part because they ignore certain adverse (e.g. unfairly redistributive) consequences of legal reform in their name. They also overlook the importance of labour rights as an aspect of political liberty. Clearly, labour advocates are in a unique position to promote effective strategies for the exercise of associative rights and thereby engage in democracy promotion.

The author’s criticism of those who disseminate the tenets of the ‘promotion paradox’ is therefore well justified, and his identification of ways in which China’s establishment, including officials and scholars, have adapted and used these tenets persuasive. An example is the rhetorical promotion of ‘private property rights’ – propaganda for the 2007 Property Rights Law was steeped in the rhetoric of neo-classicist economic liberalism, including arguments such as that private property rights would ‘allow the poor to get rich.’. Kroncke is entirely right to be critical. He seems also right in observing ‘troubling parallels between the emphasis on employment law and employer self-regulation favored in authoritarian regimes and current trends in U.S. labor law’ – to a bias against labour rights stemming in part from a misinterpretation of American history.

A weakness in the argument is the apparent suggestion that repression of the Chinese labour movement is uniquely bad, compared to the Chinese government’s suppression of other rights advocacy. For example, the 2007 Property Rights Law touted such rights with great fanfare; but its provisions supposed to protect Chinese citizens from unjustified evictions (e.g., a ‘public interest’ requirement) utterly failed to achieve their intended effect. Declarations by groups of rural residents declaring fuller, more genuine land ownership rights at the end of 2007 were swiftly and brutally suppressed. An eviction lawyer called 2010 the ‘worst ever’ year for violent evictions (and there is no indication the situation has improved since). The emerging middle class may feel comparatively well-protected; but large scale evictions and expropriations affect them, too, and their co-optation does not guarantee that the authoritarian power-holders might not suddenly decide that their rights are dispensable, too, as illustrated by recent ‘anti-corruption drives’ (or Party-internal purges) affecting very senior Party-State leaders. From this perspective, authoritarian countries’ ‘experimental’ engagement with law simply reflects their internal inconsistency and the precariousness of anyone’s rights in a ‘dual state,’ no part of which can achieve even ‘formalistic’ or ‘selective’) rule of law, as Ernst Fraenkel argued some seventy years ago.

The scale of evictions and eviction protests remains very great, with land conflicts amongst the most important causes of social unrest While individual labour rights advocacy may co-opt advocates because it is tolerated and effective up to a point, evictees find it hard to obtain access to justice to protect their property and/or housing rights and access to justice, and are generally unable to get their land and homes back. And, while the official, corporatist labour union is constantly challenged by fledgling independent labour rights groups and the ACFTU can sometimes be moved to act on behalf of workers, evictee activism remains scattered. Evictees are not better off because there is no official counterpart to the ACFTU claiming to represent them and seeking to control them. Rather, the Party-State does not even pretend to recognise their right to organise –. Making this point is not to pit evictees as a social group against workers, however, for these social groups are overlapping.

What does this mean for Kroncke’s argument? First, it weakens the claim that authoritarian regimes can be genuinely supportive of private property rights. Propagandist claims that the State respects property rights cannot support the notion that anyone’s property rights can be well protected in a system without respect for fundamental rule of law principles.

Second, Kroncke’s argument could benefit from closer attention to the role of nascent domestic civil society advocacy for private property rights which, despite challenging conditions, stresses private property’s liberty dimensions. ‘The rain may enter, the wind may enter, but the King may not:’ such phrases are popular amongst evictees and their supporters.

Evictees understand that the rights whose protection they advocate are not compartmentalised, but, rather, inherently connected. They know that as long as they are not allowed to express themselves freely, they can have no meaningful legal argument with the State about the extent of their property rights. They are also aware of the direct impact of surveillance, State-centred violence and other forms of persecution on their advocacy efforts. As a result, rights advocates across the board have engaged in more explicit political activism in recent years, as the emergence of the ‘New Citizen Movement’ (新公民运动) from mid-2012 illustrates, with its characteristically specific but diverse demands (disclosure of official assets, equal education rights, etc.).

If transnational civil society has been slow to pay attention to evictee rights activism in China, this points to a discrepancy in concern for labour and evictee rights, which is illuminative and could help extend Kroncke’s argument. From a growth perspective, expropriations, evictions and redistribution of land in their wake is efficient, and it would be difficult to reconcile better protection of evictee rights with neo-liberal economic arguments dominating the global law and development discourse. Like the domestic Chinese discourse, neo-liberal economic discourse seems interested in economic arguments for private property, primarily where they suit a convenient ‘development’ narrative. It seems less interested in the liberty aspects of private property rights, as well as labour rights’ inherent connectedness with other civil and political rights. It is the victims of rights violations in factories and on eviction sites, in detention centres, on the web, in front of government offices and in the streets who best recognise that connectedness. They and their advocates are best situated and most likely to promote democracy in China.

NYU JILP Symposium: Industrial Life without Independent Unions: The US Looks at China, and China Looks Back

by Cynthia Estlund

[Cynthia Estlund is currently Catherine A. Rein Professor a NYU School of Law]

This post is part of the NYU Journal of International Law and Politics Vol. 46, No. 1 symposium. Other posts in this series can be found in the related posts below.

Jed Kroncke explores a fascinating contrast within US policy toward China and other developing countries: That policy couples vigorous promotion of legally-protected property rights and rule of law reforms with virtual acquiescence in the harsh suppression of independent trade unions and workers’ freedom of association. Kroncke’s thoughtful and provocative juxtaposition of the two arenas of rights and policy produces novel insights into both China and US policy, and reveals puzzles and paradoxes.

To wit: China’s rapid growth in the early years of “reform and opening” took place, as others have noted, without the legally enforceable property rights that most development scholars and policymakers claim are essential to economic development. More recently, China’s leaders have defied conventional wisdom on the role of property rights and “rule of law” in promoting liberalization by reforming property rights and legal institutions while strengthening one-party rule. There is the seeming paradox of China’s strengthening property rights and suppressing workers’ rights under the banner of “socialism.” And at the center of Kroncke’s account is the puzzle of US policy, which continues to stress property rights and “rule of law,” and fails to challenge China’s suppression of independent labor activism, although the latter has a better historical track record of promoting democratic development.

There is a straightforward pragmatic explanation for the last puzzle: Insofar as China sees property rights and “rule of law” reforms – or its version of them – as compatible with or even conducive to continued one-party rule, engagement on these issues is possible. By contrast, China vehemently denounces any outside effort to promote independent unionism as meddling in its internal political affairs. Clearly independent labor activism is seen as a threat to political stability and one-party rule.

But Kroncke contends that the US neglect of workers’ associational rights in China is not just a pragmatic accommodation to political realities there, but also a reflection of the decline of unions, and indeed the neglect of workers’ associational rights, here in the US. He points out that even some labor scholars who strongly support workers’ right to form unions and bargain collectively (like me) have turned toward more cooperative and less combative structures of workplace participation. It is no wonder that the urgency of supporting independent trade unionism in China is overlooked, says Kroncke, when independent trade unions in the US – battered by decades of employer resistance and unaided by an aging, ailing regulatory framework – have lost their central role in industrial relations practice and theory, and are fighting for survival. The Supreme Court has played a role, too, weakening collective labor rights and fortifying individuals’ constitutional “right to refrain” from associating with or contributing to majority-supported unions.

In the US, trade unions are feared and loathed by different actors for different reasons than in China. There is no one-party regime that fears toppling. But there are powerful conservative players that resent, and seek to curb, unions’ political role in a hyper-polarized two-party electoral system; they see unions as agents not of democratization but of Democratization. Some of their white working class constituents agree, and vigorously assert their “right to refrain,” or simply abstain, from supporting unions. And of course US employers fear unions for their threat to cherished managerial prerogatives and flexibility; armed with power over employees’ jobs and a legal “right to resist” unionization, they make union organizing risky, and its rewards elusive, for many workers who might otherwise choose union representation.

The decline of trade unions in the US (and to a lesser degree across the developed world) raises basic questions about the future of regulatory capitalism. In Western industrial societies in the 20th century, trade unions were at the center of the industrial protest that put labor reform at the top of the New Deal agenda. The resulting reforms made unions central regulatory actors in reducing the scope and intensity of industrial conflict, and in resolving the “labor question” that long roiled American society. But nowadays, with private sector union density below 7 percent and strikes at their lowest level in over a century, it is less obvious that robust trade unions are needed to secure “industrial peace.” Unions may still be needed to pursue industrial justice, equality, and democracy; but that has never been enough to secure the full measure of political support needed for major pro-union legislation. In the meantime, the overwhelming majority of US private sector workers lacks any institutionalized voice at work, and the idea of workplace democracy has faded from public discourse. That is what drives the exploration of alternative forms of representation — not instead but alongside of the elusive reforms that might enable more workers who want union representation to get it.

China is at a different phase of economic development. Its current spate of strikes might remind us – and perhaps even China’s leaders – of the period leading up to our New Deal, when independent unions came to the fore in a new industrial relations framework. But when China’s leaders observe the more recent decline of independent unionism and collective action in the West, and especially in the US, they must wonder whether they can muddle their way through the current era of labor conflict, avoid the political perils posed by an independent labor movement, and reach the more peaceable and mostly union-free state of affairs that may await on the other side. That, in any event, seems to be the plan, for there is no sign of any softening of China’s stance toward independent unions, even as strike activity continues to rise.

Can China ride out its current labor troubles and build a more advanced and productive economy, as they hope to do, without allowing workers to form independent unions to represent them in economic (and social and political) contestation? Just because it has not been done before does not mean that China cannot do it. Much as China has defied the conventional wisdom about the necessity of secure property rights for economic development, China may defy Western-inflected expectations about the role of independent trade unions in achieving industrial peace.

Clearly, however, China’s leaders cannot rely on repression alone to combat independent labor activism. For one thing, repression tends to backfire in the form of more violent and politicized labor conflict. For another, the regime’s legitimacy and longevity may depend on addressing workers’ grievances, boosting consumer spending, and distributing more of the fruits of economic growth to ordinary citizens. That is what independent unions and collective bargaining helped to achieve during the 20th century in the US and elsewhere, but that is not on the table in China. So the Party-state is improvising on other fronts — raising minimum wages and labor standards; facilitating workers’ access to arbitral and judicial enforcement of their legal rights; promoting reform, and a limited role for “direct elections,” within the Party-controlled official union; intervening in collective disputes and pressuring employers to make concessions to striking workers; and extending the “worker representative congress” system — with a history in China’s planned economy, and a superficial resemblance to German works councils — to private companies.

All of these reforms are simultaneously driven and constrained by the regime’s determination to avoid the rise of an independent labor movement. (So I argue in a book-in-progress.) For example, real direct elections in “grassroots” chapters of the official trade union might help make those official unions more responsive, and draw workers away from independent activism; yet elected grassroots union leaders might be hard to control, and might bring a measure of independent activism to the official union itself. And so the move to democratize union elections is cautious, spotty, and weak, and the official union continues to be seen as largely “useless” to workers. All in all, it remains to be seen whether China’s multifaceted strategy for quelling labor unrest can work without independent representation of workers in legal and regulatory channels, in collective bargaining, and in workplace participation schemes.

Here in the US, we might ask parallel questions about the patchwork of employment protections that proliferated as unions declined — minimum labor standards and anti-discrimination and anti-retaliation protections — and the internal compliance and “human resource” structures that have grown up in their wake. Can those legal and non-legal protections and processes, along with plaintiffs’ lawyers and worker centers (which are much freer to support workers in the US than in China), fill the vacuum left by union decline? China, and our own history of labor unrest, both remind us that the question would have a different cast if workers were hitting the streets en masse over their grievances. Unless that happens, we will be running, and China will be watching, a vast social and political experiment in industrial life after unions.

New York University Journal of International Law and Politics, Vol. 46:1 Online Symposium

by NYU Journal of International Law and Politics

This post is part of the NYU Journal of International Law and Politics Vol. 46, No. 1 symposium. Other posts in this series can be found in the related posts below.

The NYU Journal of International Law and Politics is proud to be partnering with Opinio Juris once again for an online symposium. This symposium is a discussion of Professor Jedidiah J. Kroncke’s article Property Rights, Labor Rights and Democratization: Lessons From China and Experimental Authoritarians, which was published in the NYU Journal of International Law and Politics, Volume 46, issue No. 1.

In this article, Professor Kroncke argues that a fundamental paradox exists in efforts to promote democratization abroad that emphasize property rights to the exclusion of labor rights and that this paradox emerges from the connection between property rights and foreign legal development alongside a renewed emphasis on independent unionization in democratization theory. The Article explores the paradox in action through the willingness of modern authoritarian regimes, particularly China, to experiment with rule of law reforms, and creatively so in the realm of property rights, while being uniformly repressive of associative labor rights.

Over the next two days, a number of legal scholars will offer their thoughts on the topic, including:

Tuesday, May 13, 2014:

  • Cynthia Estlund – New York University School of Law
  • Eva Pils – Chinese University of Hong Kong, Faculty of Law

Wednesday, May 14, 2014:

Below is an introduction to the symposium by Professor Jedidiah Kroncke:

I want to open by thanking the editors at NYU JILP for their efforts in organizing this symposium and Opinio Juris for hosting. I am also very thankful for the opportunity to have scholars whose work I regard highly subject the article to critical scrutiny.

As I look forward to the commentators’ engagement with the paper’s substantive claims, I thought I would give a simple preface to make explicit some of the methodological motivations that shape the piece.

Much of my work to date has focused on the historical evolution of comparative law in the US, specifically through its relationship to China and the field popularly known as law and development. I believe that the distinction between these two fields is inherently illusory and counterproductive, especially when such distinction artificially segregates the study of certain foreign legal systems from others and in doing so presumes a certain common sense about from where and to where legal knowledge flows globally. Further, I see it as a categorical error that the monadic study of foreign legal systems is de facto labeled “comparative law” when it is not analytically comparative or, worse, implicitly employs an uncritical view of US or “Western” law. Continue Reading…

Guest Post: Strong Words, Weak Arguments – A Response to the Open Letter to the UN on Humanitarian Access to Syria (Part 2)

by Naz Modirzadeh

[Naz Modirzadeh is a Senior Fellow at Counterterrorism and Humanitarian Engagement Project at Harvard Law School. This post is written in her personal capacity and does not represent the views of the CHE Project] 

Part 1 can be found here.

Humanitarian Concerns

Perhaps as significant as the legal errors in the letter, the authors seem to take no account of the security implications of their recommendation. Given its actions thus far, including its attacks on its own population and many medical humanitarians, it would not be at all shocking if Syrian forces attacked convoys that crossed the border without consent. Without any security arrangements with the state, or communication with the government regarding entry of convoys and staff, humanitarian personnel on the ground in Syria would be operating in violation of Syrian law. Many humanitarian actors, perhaps most vocally USG Amos, have commented on the many armed groups who control and seek to control access in rebel-held areas. Should the UN announce that it was entering Syria without the consent of the government (and indeed in the face of government denial of consent), how would it ensure the safety of humanitarian actors and beneficiaries vis-à-vis non-state armed groups? Whose “consent” would satisfy the authors of the letter? Only some armed groups? Any groups that control territory, regardless of their role in the rebellion? What about Raqqa?

It is hard to imagine how any state would support such a notion: would Yemen allow AQAP to provide independent consent to Saudi Arabian relief agencies to enter Yemeni territory in order to provide humanitarian assistance? Would Lebanon allow Iran to enter southern Lebanon to provide assistance to Hezbollah-held territory? (For that matter, would Lincoln’s government have allowed British-backed relief groups to enter the southern territories to provide humanitarian assistance based only on Confederate consent?) It is also critical to remember that those who are asking the United States and European states to aggressively back the UN and humanitarian NGOs to enter Syria without the government’s consent are asking governments who are openly and actively supporting the Syrian rebellion to overthrow the Syrian government. Moreover, despite what seem to be an array of arbitrary and capricious denials of consent by the government of Syria, it would be peculiar, and approaching hypocritical, for the U.S. and Europe not to recognize that many of the Syrian denials of consent stem from security concerns involving “terrorists.” While the U.S. and Europeans may disagree on whether all of the individuals designated by the Syrian government are in fact terrorists, the U.S. and Europeans are themselves deeply concerned about certain terrorist groups operating in Syria, including their own citizens who may return home.

Political Backdrop

I have heard from many colleagues in the humanitarian and human rights fields that as soon as the letter came out, they received angry messages from staff demanding to know why more INGOs have not stood up to support the letter and criticize the UN. My sense has been that since the letter was published, there has been increasing confusion regarding the legal and political dimensions of the question of cross-border movement in the absence of state consent, and that in important respects this question is being misunderstood as a matter primarily of IHL interpretation. The imprecision of the letter’s arguments strike me as having real consequences in the current environment.

Perhaps foretelling an emerging view, Kaine continues,

Since the United States remains the largest single donor of humanitarian assistance in the world, I intend to push strongly for the disbursement of those relief funds in a way that ensures aid will reach the people most in need, including across borders.  I support conversations with other like-minded countries to explore ways within the UN structure, or outside of it, to ensure more cross border aid is delivered.  I also call on the UN to involve NGOs in discussions related to the planning of aid convoys, aid delivery mechanisms, and implementation of 2139.

IHL provides a very delicate system supporting humanitarian assistance during armed conflict. It is far from the strongest part of the law, and humanitarian actors have struggled to develop tools from within IHL that will assist them in negotiating with intransigent governments and non-state actors alike. It strikes me that approaches like the one captured in this letter and in some advocacy campaigns could have implications far beyond Syria: giving states the message that humanitarian actors may use humanitarian access in IHL as a means for intervention, or that they will not genuinely seek consent before they begin operations.

A Security Council decision to intervene—whether based on the doctrine of the responsibility to protect, or a recognition on the part of the international community that Syria’s horrific actions otherwise threaten international peace and security—may provide a strong basis for relief operations absent the consent of the government. But these relief operations may need to be conducted by state-backed actors who are able to aggressively defend their own security and the security of civilians (read: not humanitarian agencies). Or, intervention may open up access, as has occurred in other recent conflicts, for humanitarian actors to enter the country. But neither of these will occur due solely to an interpretation of IHL. The decision to violate Syria’s sovereignty in order to save civilian lives may be made either by the Security Council or by a group of states that decide that the need to stop the crisis outweighs the general international legal prohibition on intervention. It would be, in my view, both dangerous and inappropriate for the UN’s humanitarian agencies to make such a choice on their own, exposed to the full force of the conflict.

I emphasize that none of my comments should be understood as suggesting that NGOs and INGOs cannot and should not cross the Syrian border without the government’s consent. It would likely not be lawful for them to do so under Syrian law, but in my view the UN humanitarian agencies are differently situated than their NGO counterparts when assessing whether they can and should violate Syrian law, and take the attendant security risks in order to enter rebel-held areas. Nor should my comments be understood as in any way supporting the Assad government’s policies or decisions. However, I believe that political arguments should be made as political arguments.

Conclusions

As I have argued elsewhere, this increasing impulse in advocacy circles may have unanticipated consequences for the long-term goals of those who seek to protect civilians and fighters hors de combat in armed conflict.

It is entirely laudable for a group of eminent scholars and former UN experts to suggest—even demand—that the Security Council should take a firm stand, and make a decision under its Chapter VII authority forcing the Syrian government’s hand. They could even argue that the time has come for intervention (though I would suggest that it would be inappropriate for humanitarian organizations to be placed at the frontline of such an intervention). In short, this is not an IHL problem. The inability of the United Nations to establish itself in a country that has not given its consent for such presence is not based on a faulty interpretation of IHL.

While many INGOs, NGOs, and Syrian groups are frustrated with UN inaction or failure of coordination (as demonstrated in an April 16 report from a group of NGOs working in Syria articulating criticisms of UN leadership), my sense is that it is important for INGOs to understand the difference between an official UN position and operational decisions made by INGOs already active on the border. This situation may become further sensitive as some donors may redirect funds from UN agencies to INGOs, publicly announcing that they are doing so due to their disagreement with the UN’s legal position. It may be worthwhile for these donors, should they find themselves participating in a non-international armed conflict, to recall that the UN’s approach reflects settled and clear international law, and that it further reflects these donors’ own legal positions.

Guest Post: Strong Words, Weak Arguments – A Response to the Open Letter to the UN on Humanitarian Access to Syria (Part 1)

by Naz Modirzadeh

[Naz Modirzadeh is a Senior Fellow at Counterterrorism and Humanitarian Engagement Project at Harvard Law School. This post is written in her personal capacity and does not represent the views of the CHE Project] 

There is no shortage of profound questions arising out of the armed conflict in Syria. Yet whether the reported United Nations legal analysis concluding that the UN needs the consent of the Syrian authorities before it can undertake humanitarian relief actions on Syrian territory is not one of them. As international law questions go, this one is relatively straightforward: Absent a sufficient Security Council decision authorizing intervention—a decision which has not been forthcoming, at least not yet—UN system bodies, funds, programmes, and specialized agencies need to obtain the consent of the Syria authorities before undertaking relief actions on Syrian territory.

You would be forgiven for being confused about whether there is a contested legal issue at stake if you had read the open letter sent on April 28th from 35 eminent legal experts (repeatedly referred to as “top international lawyers” in the press and in an increasingly loud Twitter campaign) to the UN Secretary General, Under Secretary General Valerie Amos, and the heads of the five UN humanitarian agencies.

US Senator Tim Kaine (who sponsored the Syrian Humanitarian Resolution of 2014) quickly capitalized on the letter and the caliber of its signatories, sending a letter to Secretary General Ban Ki-Moon stating that “continued inaction will only undermine the legitimacy and reputation of the UN.” The Senator noted that while he supports a Chapter VII decision, he believes that “the UN already has the authority to act.” He states,

“Based on the opinion of prominent international lawyers, the UN currently has the mandate and legal authority to organize a large coalition of international NGOs poised to deliver humanitarian aid to all areas of Syria. Anything short implies complicity with the Syrian government’s continued violations of the basic principles of international law, and is shameful.”

Strong words—and ones that raise the question of whether the prominent international lawyers who signed the letter anticipated being implicated in the suggestion that the UN’s failure to essentially run the Syrian border against the government’s explicit denial of consent suggests “complicity with the Syrian government’s continued violations.”

There are many actors with blood on their hands in the generational tragedy unfolding in Syria. In my view, the women and men of the UN’s humanitarian agencies are not on that list.

In this post, I would like to provide a close initial read of the letter (whose arguments have been quickly amplified by an advocacy and media campaigns). My sense is that this is a political argument dressed up in the language of IHL.
Continue Reading…

More FATCA Follies: Do We Need an Anti-Passport?

by Peter Spiro

As my correspondent Victoria Ferauge points out in response to last week’s post on inter-governmental agreements implementing the Foreign Account Tax Compliance Act, the problem with FATCA for expatriate Americans is not so much the prospect of added accountant fees in tax preparation. It’s the prospect of being discriminated against as an American for all things financial. Faced with their own accounting hassles, some foreign financial institutions are refusing to deal with Americans at all. If they don’t have U.S. citizen account holders, they won’t have to comply with FATCA’s reporting requirements.

Problem is, how do you show you’re not an American?

If you are clearly an American (if, for instance, you were born in US territory), there is a definitive route to losing your citizenship and having it documented. You formally renounce your citizenship before a consular officer (or otherwise demonstrate that your citizenship has been relinquished). A Certificate of Loss of Nationality is your reward. That should do the trick with local bank officers on the lookout for US depositors.

But what if you’re not sure whether you are American in the first place?

Foreign banks are erring on the side of caution. Suspected Americans are to be avoided. Local bankers are assuming citizenship by association. Where they know one family member is a US citizen, they will assume the worst of others, especially parent/child. Banking in Europe remains a more personal, service-oriented business than in the States, so it will not be uncommon that the connections are made.

Individuals in these situations, unsure of their US citizenship status, are in a tricky position. One would expect some to seek out opinion letters from private counsel to the effect that, this person is not a US citizen. You would think that would do the trick with FATCA-shy banks. But perhaps the US government should make it official with the equivalent of an anti-passport, certifying non-citizenship in particular cases.

That an anti-passport is even plausible as a thought experiment shows how bad FATCA really is. Americans abroad are renouncing their citizenship in record numbers, and others will feel lucky not to have it in the first place. What a turn from an earlier era, in which US citizenship was a badge of honor and a shield against a brutish world.

The Security Council Won’t Even Go Dutch with the ICC on Syria

by Kevin Jon Heller

There are many reasons to be skeptical of the Security Council referring the situation in Syria to the ICC, not the least of which is that an ICC investigation is unlikely to accomplish anything given the ongoing conflict. (One that Assad is almost certainly going to win.) But just in case that’s not enough, take a gander at this provision in the draft referral:

[The Security Council] recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily and encourages States to make such contributions.

In other words, the UN just wants to refer the situation; it doesn’t want to pay for the ICC’s investigation. So much for Art. 115 of the Rome Statute, which provides that “[t]he expenses of the Court and the Assembly of States Parties… shall be provided by the following sources… Funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council”…

I have previously urged the Prosecutor to refuse to open an investigation into the situation in Syria unless the Security Council is willing to fund it. The draft referral makes clear that the Security Council has no intention of doing so. In the unlikely event that the referral ever passes, I hope the Prosecutor will consider my suggestion.

Whither the (U.S.) International Law Academic?

by Duncan Hollis

The state of the international law academy in the United States is undoubtedly strong.  International law and its progeny are no longer marginalized pieces of the law school curriculum as they were for much of the 20th century.  U.S. Law Schools regularly offer international law, with a fair number now doing so in the first year (whether as a required course or an elective).  Nor is the subject limited to a one-off class; schools often try to cover the more fragmented landscape with multiple offerings, from human rights to trade, from arbitration to international environmental law.  Given this proliferation of courses, it’s not surprising to see a similar growth in the number and prominence of international law academics (there is, though, a chicken and egg question here as to which came first).  Today, many schools have moved beyond the requisite “one” international law professor to incorporate faculty with a broad range of international and comparative research interests and experiences.  By way of example, here, at Temple, depending on how you count, we have 11-13 international law faculty.

All that may come as cold comfort, however, to those looking to become international law professors at a U.S. law school in the coming years.  It’s no secret that the U.S. legal education market is in a rather dramatic contraction right now.  As applications tumble, schools are cutting the size of their entering classes, and in some cases their existing faculty.  Last week, a great post by Sarah Lawsky (UC-Irvine) provided a wealth of comparative data on the impacts the market shifts are having on tenure-track hiring for U.S. law schools.  The picture is not a terribly pretty one – from a high of 167 junior faculty hired in 2008 to 73 this year.  I don’t know exactly how many of these 73 hires were in international law, but I’d guess not many.  As schools re-trench, many will focus on hiring in domestic areas because that’s where the perceived jobs are for students (the supply for potential international lawyers having long outstripped the demand, at least for those with a U.S. J.D.).  I’d welcome data that upsets my expectations, but, for now, I’m betting that international law teaching jobs (which were always pretty competitive) are now going to be very hard to get.

This situation leads me to ask three questions.  For starters, is there anything aspiring international law academics can do to actually increase their chances of landing a job in the field? For example, I was asked by a PhD candidate at King’s College London a few weeks ago whether having a PhD in international law would be valued by U.S. law schools given how some law schools have been actively seeking to hire law professors who have PhDs.  My answer, I’m afraid, was not terribly encouraging.  A PhD without a J.D. will raise hackles on many faculties who want law professors to be lawyers.  And where a candidate has both a PhD and a J.D., the pedigree of both degrees will matter more than the presence of the degrees themselves.  Moreover, I’d hazard to guess that other factors may be more important to hiring committees, namely prior work experience in international law (which I think still matters), publications with an emphasis on the “s”, and having had a prior fellowship.  Indeed, according to Lawsky, 84% of the 2014 hires came from a fellowship program (in contrast, 19 candidates had PhDs and none of these were in international law).  And, of course, networking and ‘who knows you’ may actually be the most important aspects of a candidacy in a market that’s become so small.

Given the harsh hiring reality, my second question is what does the future hold for international law teaching, at least in the United States?  Will prospective candidates simply keep their day jobs and avoid testing the market altogether? Will folks take a “wait and see” attitude, hoping for a rebound in interest and hiring in 3-5 years?  Or, will candidates go abroad to try and teach? My sense is that the market in Europe for international law teaching has not suffered the same downturn currently plaguing the United States, and thus there may be more opportunities there. Similarly, I know from a number of post-docs who I’ve worked with that China, Singapore and other areas in the Far East are paying more (not less) attention to international law as well. I’d be interested to hear from more knowledgeable readers what the state of the European and Asian markets are for international law academics (and whether there are other teaching markets potential candidates should consider).

Third, and finally, I wonder if it’s a good or bad thing to have fewer new international law professors entering the profession?  I’m inclined to look at it negatively on the assumption that international law work will continue to rise, not just as a stand-alone profession for lawyers, but as a component of the work all lawyers do in an increasingly globalized world.  As such, there should be sufficient faculty to introduce students to this area and the legal work it involves. Others, however, I suspect might suggest the pendulum has swung too far and that U.S. law schools are devoting too much time and energy to international law in both curricular and hiring contexts, saying that the on-going re-adjustment is therefore a good outcome.  Still others might argue that the issue is idiosyncratic; as law schools start to move away from uniform aspirations, a case could be made that certain law schools should become more focused on international law by virtue of their history, geography, or market placement at the same time as other law schools’ circumstances make the case for devoting less attention to international law. 

What do readers think?  Is there any hope for someone trying to get a U.S. law teaching job in international law in 2014-15?  Are there alternative places candidates should look if, in fact, U.S. law schools are hanging out ‘no vacancy’ signs in international law?  And, how worried should we be about this situation, whether in the short, medium, or long-term?

[UPDATE:  With a hat tip to Peter Spiro, it seems Sarah Lawsky did track hiring candidates by subject matter, so we can actually see how many of this year’s lucky hires expressed an interest in international law.  By my count it looks like there are 2 candidates who identified international law as their primary area of interest and one who did so for international trade.  Three other candidates identified international as a third or fourth area of interest.]

Weekly News Wrap: Monday, May 12, 2014

by Jessica Dorsey

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

Africa

Asia

Europe

Middle East and Northern Africa

Americas

UN/Other

Events and Announcements: May 11, 2014

by Jessica Dorsey

Events

  • Sociological Inquires into International Law” (LSE, May 16-17, 2014) is a workshop with the aim of bringing contemporary international law scholarship into a closer conversation with a number of inspiring and theoretically rich literatures on law and markets deriving from traditions of thinking within sociology and anthropology.  We are convinced that, particularly within the field of international economic law, a deeper and more informed engagement with a range of sociological and social theoretic modes of thinking is necessary for intellectual renewal. For details, please visit the workshop site. If you would like to attend the workshop (and due to the limited available seats), please contact  Gosia Brown (G [dot] M [dot] Brown [at] lse [dot] ac [dot] uk)  in advance.
  • On May 22, from 14:00-15:00, Bergen Resource Centre for International Development will arrange a book bath for Maja Janmyr and her new book Protecting Civilians in Refugee Camps.
  • The United States Institute of Peace is offering a course on International Humanitarian Law and Human Rights as part of its highly regarded Academy for International Conflict Management and Peacebuilding.  The Academy provides practitioner-oriented education, training, and resources via facilities at USIP’s Washington headquarters, mobile training in conflict zones abroad, and online distance education and training. This course on IHL and HR runs June 17-19, 2014 and will focus on key questions: Why do we have these bodies of law? How do they apply? What is the practical impact of human rights and humanitarian law in conflict-affected states? How do these two bodies of law interact? How are human rights and international humanitarian law relevant to practitioner’s work in the field? The three-day course will be delivered through a variety of methodologies that seek to maximize the learning experience, with an emphasis on problem-based learning. Additional course and registration information is available here.

Calls for Papers

  • As noted previously, the research project Architecture of Postnational Rulemaking at the University of Amsterdam, Faculty of Law, is seeking paper proposals for a workshop on “Transnational Standards in the Domestic Legal Order: Authority and Legitimacy,” to be held on October 24, 2014. The keynote speaker will be Professor Nico Krisch, Institut Barcelona d’Estudis Internacionals. Full details here (pdf). The deadline is 18 May 2014.
  • The AALS has announced a call for papers on International Human Rights New Voices Panel for the AALS Annual Meeting taking place January 2-5, 2015, in Washington, D.C. The deadline to submit a paper is September 15, 2014. More information can be found here.
  • Call for papers, Armenian Yearbook of International Law In January 2014 members of the International and Comparative Law Center of Armenia (one of the flagman research academic institutions on IPL/IHL in Armenia) has presented the first issue of the Armenian Yearbook of International and Comparative Law. ICLaw Center has recently published the call for papers. Deadline for submissions: 30 June 2014
  • Maastricht University has announced a call for papers for the conference on Denialism and Human Rights, taking place 22 and 23 January 2015. The deadline for the call is 1 August 2014.
  • A call for papers has been announced for the bilingual Colloque Doctoral 2015: The European Union and International Law/L’Union européenne et le droit international 17-18 April 2015 at the University of Fribourg. More information can be found here 
  • Imagining the Future: Conceptions of Risk and the Regulation of Uncertainty in International Law – Institute for Legal Studies, Centre for Social Sciences, Hungarian Academy of Sciences, Budapest, Hungary, 17 – 19 October, 2014. Increasingly, international legal arrangements imagine future worlds, or create space for experts to articulate how the future can be conceptualized and managed. With the increased specialization of international law, a series of functional regimes and sub-regimes has emerged, each with their own imageries, vocabularies, expert-knowledge and rules to translate our hopes and fears for the future into action in the present. At issue in the development of these regimes are not just competing predictions of the future based on what we know about what has happened in the past and what we know is happening in the present. Rather, these regimes seek to deal with futures about which we know very little or nothing at all; futures that are inherently uncertain and even potentially catastrophic; futures for which we need to find ways to identify, conceptualise, manage and regulate risks the existence of which we can possibly only speculate about. In short, international law is increasingly becoming the preserve of HG Wells’ ‘professors of foresight’. The central theme of this workshop is how the future is imagined, articulated and managed across functional fields in international law. The deadline for abstract proposals is 1 June 2014. More information on this project and contact details can be found here.

Announcements

  • The International Committee of the Red Cross has published its quarterly Bibliography. You can subscribe to receive the bibliography by e-mailing library [at] icrc [dot] org.
  • An International Conference will be held at the Tel Aviv University Faculty of Law on Sovereignty as Trusteeship for Humanity Historical Antecedents – and their Impact on International Law from 15-17 June 2014. More information here.
  • The Changing Nature of Customary International Law: Methods of Interpreting the Concept of Custom in International Criminal Tribunals has been published by Routledge.
  • The IHL competition “Youth for Peace” is the biggest regional event of the kind in Eastern Europe. It is a truly unique event bringing on the annual basis the students from all over the world (not limiting to the East region only), e.g., in the past teams from Brazil, Kenya, Cuba, India, Singapore, China, Romania, the Netherlands, the USA and from all over the Eastern Europe and Central Asia  took part.  It is not a moot court as such, but rather the role play competition in the best traditions of the Pictet Competition.  Deadline: 1 June 2014 Open to: team should consist of two-three students (2-3) under the age of 31 who have not participated in the Competition before. Dates and venue: September 30th –October 4th, 2014, Minsk, Belarus. Registration form 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 with a one-paragraph description of your announcement along with hyperlinks to more information.

Weekend Roundup: May 10, 2014

by An Hertogen

A busy week on Opinio Juris with a book symposium on Just Post Bellum-Mapping the Normative Foundations. Kristen introduced the great definitional debate on the meaning of “just post bellum” (JPB). Jens Iversion contrasted JPB with transitional justice and Ruti Teitel discussed JPB as transitional justice. Jens Ohlin argued in his post that ideas about omission liability are stumbling blocks towards the acceptance of JPB. Where Eric de Brabandere offered a normative critique of JPB in international law, James Gallen was more optimistic that there was value in an interpretative conception of JPB. Jennifer Easterday focused on peace agreements as a framework for JPB, and Christine Bell explored the dynamics that have led to all these overlapping conceptualisations of international law’s role in post-conflict situations. Cymie Payne discussed the concept of environmental integrity central to her chapter and Dov Jacobs explained the thinking behind his chapter on the central role of sovereignty in JPB. Greg Fox shared his thoughts on how JPB discussions can navigate the unilateral/multilateral divide. James Pattison examined who has a duty to rebuild after a war and Carsten Stahn finished the symposium with a post on JPB and the ethics of care.

The Al-Nashiri prosecution also attracted commentary with Kevin expressing surprise at Judge Pohl’s order that hazarding a vessel is a war crime and arguing that the attack on the USS Cole did not take place in an armed conflict. David Frakt also wrote a guest post on the existence of an armed conflict in the Al-Nashiri case.

In another guest post, Hayk Kupelyants advanced an alternative interpretation of pari passu clauses.

Of our other regular bloggers, Julian discussed how Colombia’s Supreme Court had apparently followed the US Supreme Court’s lead in denying that ICJ judgments are self-executing under domestic law, and Peter evaluated the looming constitutional challenge against the Foreign Account Tax Compliance Act.

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

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

Guest Post: Al Nashiri and the Existence of an Armed Conflict

by David Frakt

[David J. R. Frakt, Lt. Col., USAFR, is a legal scholar and former lead counsel, Office of Military Commissions-Defense.]

I wanted to weigh in on the debate between my esteemed colleagues Steve Vladeck, Peter Margulies and Kevin Jon Heller at Just Security, Lawfare and Opinio Juris, on the issue of the existence of an armed conflict at the time of Mr. Al Nashiri’s alleged offenses and the critical questions of who should decide this issue, and when.  Peter argues that this is a question of fact best decided by the panel of military officers who will serve as jurors in the military commissions.  Al Nashiri’s defense team asserts that this is a question of law and they are asking the D.C. District Court to rule that the attack on the USS Cole in Yemen in 2000 was not part of an armed conflict.  As there was no armed conflict ongoing, so goes their argument, the law of armed conflict does not apply and his actions could not be considered a violation of the law of war; further, because military commissions are courts of limited jurisdiction with power only to try and punish violations of the law of war, the federal court should enjoin any further proceedings at Guantanamo.  It should be noted that Al Nashiri has already raised this matter in a pretrial motion in the military commission, seeking to have the charges dismissed by the military judge on the grounds that the commission lacks jurisdiction over his alleged offenses because they did not take place in the context of an armed conflict.  Judge Pohl declined to dismiss the charges, characterizing the issue as primarily a question of fact for the jury (Ruling AE104F).  Judge Pohl also acknowledged that the question was a “jurisdictional question subject to purely legal determination” but claimed that he must make this determination using a “wide deference” standard.”  Applying this standard, he found that the Congressional authorization to try offenses that occurred prior to 9/11, coupled with the fact that charges had been filed by the prosecutor, referred to trial by the Convening Authority, and not withdrawn by the Secretary of Defense or the President was sufficient to establish the existence of an armed conflict at the time of the offenses for jurisdictional purposes.  This determination is essentially tantamount to a finding that he considered there to be sufficient evidence to submit the question to a jury.  However, he left open the possibility of reconsideration at a later time, presumably in the form of a motion for a directed verdict at the close of the prosecution’s case.

Continue Reading…

Jus Post Bellum Symposium: Jus Post Bellum and the Ethics of Care

by Carsten Stahn

[Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University, and Programme Director of the Grotius Centre for International Legal Studies.]

Jus post bellum comes in many forms and variations. One of the main shortcomings in existing discourse is the lack of engagement with the interplay between law and morality. Like the laws of war, and the law on the use of force and intervention, jus post bellum is grounded in both moral (e.g., ‘principles of humanity’, ‘dictates of public conscience’) and legal considerations. The two are often portrayed as in conflict with each other.

In just war theory, the concept has been traditionally linked with ‘judgment’ of conduct in international society (e.g. fairness of behavior, sustainability). In his ‘After War Ends’, Larry May has offered six jus post bellum principles that he considers as ‘primarily moral norms’: (i) rebuilding, (ii) retribution, (iii) restitution, (iv) reparation, (v) reconciliation and (vi) proportionality. They are framed as ‘obligations’, but are approached with caution by lawyers, since they are based on an abstraction of context-specific legal norms and principles or de lege ferenda considerations.

Lawyers have typically remained skeptical of the role of morality and ethics in their theorization of jus post bellum, partly based on risks of instrumentalization and abuse of authority. For centuries, discourse on jus post bellum has been dominated by claims over rights and duties of victorious states, entitlements after war and post-war justice. In the 20th century, approaches towards fundamental concepts (e.g. ‘punishment’ of states, ’occupation’) have changed through the increasing concern of international law with peoples’ and individual rights. A nucleus of legal principles is developing incrementally through practice and lawmaking in different areas, such as peace treaties (see e.g., Christine Bell pp 191-204, Jennifer Easterday, pp 379-412), peace operations (Dieter Fleck, pp 43-57), (post-) occupation law (see e.g,. Adam Roberts, Kristen Boon, Yael Ronen, pp. 428-445), international criminal justice (Fréderic Mégret, pp. 519-541) and statebuilding practice (Matthew Saul, pp. 447-464). One of the deficits of modern jus post bellum principles (e.g. accountability, vetting, reparations) and approaches to peacebuilding is that they are often presented in technical labels (‘rule of law’, ‘capacity-building’, ‘civil administration’) that mask their normative agenda or try to foster acceptance through reliance on ‘global community’ standards.

This trend is artificial and detrimental to the development of jus post bellum. The concept offers not only criteria for the evaluation of behavior (e.g., legality or morality of acts and/or omissions), but is geared at facilitating and guiding ‘choices’ in transitions. Such ‘choices’ require normative grounding, justifications and a moral stance that goes beyond legal rules and standards. Some rules and legal regimes in the areas of justice (‘principle of legality’), governance (‘political participation’) or human rights (property, reparation) require adjustment in order to accommodate the specific tensions inherent in the management of transition from conflict to peace (e.g., via targeted accountability, provisional centralization of authority, mass claim mechanisms). Moreover, the very meaning of what is ‘just’, ‘fair’ or conducive to societal peace in a specific context emerges through discourse and processes of interaction (e.g., demonstration and contestation) and is shaped by ‘institutional’ ethics and individual decision-making processes that cannot be seen in isolation of the law.

In the past decade, the turn to ethics under jus post bellum has gained a new turn with the focus on ‘sovereignty as responsibility’ under the Responsibility to Protect (R2P) which emerged as a modern extension of just war theory after Kosovo. The association of post-conflict responsibility with legal duties of reconstruction or rebuilding after conflict’ has created anxieties and fears among states. This has led to a marginalization of the ‘responsibility after conflict’ in UN practice (e.g. ‘Implementing the Responsibility to Protect’). Where ‘responsibility’ is invoked in public and legal discourse, it is typically conceptualized through the perspective of the agent (wrongdoing, causality) or the exercise of control (e.g. the Pottery Barn rule ‘If you break it, you own it’), as demonstrated in Iraq and thereafter. The inadequacies of this approach have been criticized by others, such as James Pattison, who suggests a ‘capacity’-based model (here) that might have some parallels with the ICJ’s approach towards prevention in Bosnia and Herzegovina v Serbia and Montenegro (para. 430).

One way to re-think this ‘responsibility’ dilemma that has not received enough attention in jus post bellum is the concept of the ethics of care. The theory of ‘care’ offers an alternative normative grounding for responsibility than rationalist accounts (e.g., power, influence, interests etc). It shifts the attention from the ‘agent’ to the ‘other’, and provides a ‘relational account’ between actors, based on ‘need’, ‘empathy’ and concern. The connection between ‘care’, morality and modern accounts of responsibility has been drawn by various scholars  (see e.g., Virginia Held, in relation to international law; Louise Arbour and Craig Barker, in relation to R2P; and Signal Ben-Porath in relation to jus post bellum). This argument takes into account the interdependence between agents and subjects of protection, and places greater attention to the needs of individuals, their treatment as subjects rather than objects, and the relationships arising through the assumption of agency in international action. This care-based approach is often discarded as a utopian project. I would argue that it deserves greater space in the theorization of particular areas of jus post bellum.

Many of the existing humanitarian norms guiding intervention and armed force assume the existence of a relationship of ‘care’. Care is a fundamental prerequisite of the ‘precautionary’ principle. Duties of care have been identified as an essential element of the application of R2P (‘Responsibility while Protecting’). Arguments of ‘care’ inform the interpretation and application of certain normative concepts under the law of armed force, such as ‘necessity’, ‘proportionality’ or ‘humanity’. These principles reach beyond warring parties, apply both during armed conflict and in post-conflict contexts and entail duties of care for the aftermath of conflict. The regime governing the protection of the environment (see Cymie Payne, pp. 502-518) is a paradigm example. It encompasses a duty to remedy violations irrespective of the legality of conduct or intended harm.

Many fundamental aspects of peacebuilding cannot be explained without the existence of relationships of care. The concept of ‘care’ is an inherent element of the justification of the exercise of public authority over foreign territory. It underpins the legitimacy of ‘trusteeship’ under the law of occupation or idea of ‘caretaker’ government under international administration. The ethics of care require agents to justify for whom they exercise authority, and to test whose consent (Aurel Sari, pp. 467-501) matters. Moreover, they determine fundamental parameters of ‘exit strategies’ (see Dominik Zaum, pp 334-344), such as the balance between continuing commitment and the necessity of disengagement of international actors.

The need to frame responsibility through ethics of care is reflected in regulatory practice. In past decades, there has been a significant rise in the development of ethical principles, code of conducts and informal instruments (Geneva Call, ‘Ruggie’ principles) determining the conduct of individual actors (e.g. UN personnel, non-state actors companies) in conflict and post-conflict environments. They rely on the ethics of care and are necessary to translate abstract obligations into tangible guidelines for action. Rather than denying the space of the ethics of care in international law and the development of jus post bellum, we should embrace it.

Jus Post Bellum Symposium: The Responsibility to Protect, Jus Post Bellum, and the Duty to Rebuild After War

by James Pattison

[James Pattison is a Senior Lecturer in Politics, University of Manchester.]

It’s often been claimed that there exists a responsibility to rebuild after war on behalf of the international community in cases such as Afghanistan, Iraq, Kosovo, Somalia, and so on. For instance, this was one of the key tenets of the report by the International Commission on Intervention and State Sovereignty on the responsibility to protect (R2P). But who has the responsibility to rebuild? So, for example, who should rebuild Libya, Mali, and Afghanistan? Should the U.K. and U.S. have been tasked with rebuilding Iraq, given that they fought the war, or were other states, such as France and Germany, morally required to help rebuild Iraq, even though they didn’t take part in the war?

As I discuss at greater length in a forthcoming article in the British Journal of Political Science (on which this blog draws), some have offered an (often implicit) assignment of the issue of who should rebuild. In particular, many leading advocates of the relevance of jus post bellum for Just War Theory (such as Gary Bass) hold what we might call the ‘Belligerents Rebuild Thesis’. This asserts that those who have been involved in the fighting should be tasked with the duty to rebuild. This is often asserted about the unjust aggressors: they should rebuild after to repair the mess that they have caused. This was a claim that was frequently made in the aftermath of the 2003 War in Iraq. For instance, Colin Powell purportedly claimed ‘you broke it, you own it’. But it may also be applied to the victors in general, regardless of the justice of their war in terms of the principles of jus ad bellum. For example, the victors should rebuild to ensure that the basic needs of those in the defeated belligerent are met. But it’s perhaps more often defended for those that fight just wars, such as those that undertake just humanitarian interventions. For example, Michael Walzer argues that

Once the Vietnamese had sent an army into Cambodia, for the best of reasons, to save lives (whatever their other reasons), they were bound to keep on saving lives in Cambodia. They had to secure and maintain some kind of law and order and establish a nonmurderous government to replace the one they had overthrown.

There are several problems with this view, that is, the Belligerents Rebuild Thesis. The first is that the belligerent may not be the most suitable agent to rebuild. This is perhaps most obvious when it has fought an unjust war. For example, its post-war occupation may be heavily opposed by the local population leading to a reigniting of the conflict. This point can be made more precisely: the belligerent may not have the (i) right to rebuild. They might, for instance, be likely to do a very poor job of rebuilding. But, even if belligerents have the right to rebuild in certain cases, it doesn’t follow that they are likely to have the (ii) duty to rebuild. Other agents may be better able to carry out the rebuilding than the belligerent.

But why does the Belligerents Rebuild Thesis seem so popular? What lies at the heart of its intuitive appeal is that belligerents sometimes possess duties of reparation, by which I mean duties to redress the wrongdoing for which they are morally culpable. But duties of reparation are of limited relevance for the issue of who should rebuild. It may be difficult to trace causally which agents were the belligerents—and so owe reparative duties—and there might not always be left belligerents to which to assign the duty rebuild. For instance, a war between two statist parties may be so acrimonious that the institutions of both states no longer function. Alternatively, especially in the case of a non-state war, the belligerent (for example, a guerrilla movement) may no longer exist after the war.

The second problem with the Belligerents Rebuild Thesis is that it seems unfair in cases when the belligerent has fought a just war. Such a belligerent has done nothing wrong that means that they, rather than anyone else, should bear the costs of rebuilding.

Third, and related, the Belligerents Rebuild Thesis wrongly excludes non-belligerents from the rebuilding process. Non-belligerents (for example, the UN) may sometimes be required to rebuild since they are best placed to do so. In fact, if the Belligerents Rebuild Thesis is premised on the claim that ‘you broke it, you own it’, it seems to be too narrow, since certain non-belligerents may have also been culpable for the war, such as those that finance the war and provide military equipment.

The fourth problem is that it may have problematic consequences for future wars. If it were required of just belligerents that they have to rebuild the other party after the war simply because they are a belligerent, this may discourage potential future just interveners and defenders from launching their wars.

Instead, I’ll now briefly suggest that there exists an international, collective duty to promote and to establish just political institutions, which translates into a duty to rebuild for the most justifiable rebuilder.

An International Duty to Rebuild

Why is there this duty? It stems from a ‘Natural Duty of Justice’ to promote and to establish just political institutions, as presented by John Rawls and Allen Buchanan. If we accept certain natural duties of justice, such as to establish just political intuitions, which there is a strong case for if one is committed to moral equality, then it seems that there is a duty to rebuild. The international duty to rebuild after war involves an important set of cases for this duty–—that is, where just post-war political institutions do not exist.

In fact, the duty to rebuild after war seems to be one of the most important implications of the Natural Duty of Justice for two reasons. First, post-war societies may comprise several of the cases in which societies lack just political institutions. Second, the strength of the Natural Duty of Justice may be much greater in cases of the duty to rebuild because war-torn societies (for example, Somalia) sometimes have no effective political institutions, let alone just ones. It may be even more morally urgent to address anarchy and to establish basic order than to put in place just institutions where there are currently unjust ones.

Assigning the Duty to Rebuild

So, there’s an international, collective duty to promote and to establish just political institutions. But who should act upon this duty and deliver the duty to rebuild? To answer this question, it helps to consider two central issues: (i) which agent has the right to rebuild and (ii) which agent has the duty to rebuild.

To have the right to rebuild, agents must have just cause for rebuilding. Their rebuilding must be likely to be reasonably effective. And, it helps their justifiability if they are representative of the opinions of those in the political community that they are rebuilding on the means, methods, and goals of the rebuild. For instance, if those in the political community don’t want their community to be rebuilt by the agent or in a particular way, the agent should respect these wishes. They also should have a suitable intention and be authorised by the appropriate international political institution. This account of the conditions to have the right to rebuild will potentially shrink the possible pool of rebuilders. Within the remaining pool of agents–—all of which would meet these conditions–—who has the duty to rebuild?

The duty to rebuild should fall on the potential rebuilder whose rebuilding is likely to be most morally justifiable, which will turn on the likely capability of the rebuilder. To that extent, amongst those that have the right to rebuild, it should often be the most capable rebuilder that rebuilds.

What does this mean in practice? Who should actually rebuild? I can’t offer a full account of this here, but I’ll offer some brief remarks. First, there should be a presumption against the belligerents rebuilding. Instead, it seems that the rebuilding process shouldn’t only be authorised by the UN (that is, by the Security Council), but also generally be carried out by it (for example, by UN peacekeepers or a UN transitional administration). The UN, despite notable flaws, seems generally (if not always) best placed to rebuild in the most justifiable manner for several reasons. But all current potential agents have several pretty serious deficiencies; there needs to be significant reforms to our rebuilding architecture. There might be the case for a stronger UN Peace-building Commission to be able to handle all cases of post-war rebuilding fully justifiably that, for example, has improved coherence and coordination, and is very well resourced.

It seems that we have a duty to carry out such reforms. If the responsibility to rebuild requires a stronger UN system for rebuilding so that the responsibility to rebuild can be properly realised, there is a further duty of justice to act upon this. So, there is a duty to build an international institution in order to fulfill the duty to rebuild.

Jus Post Bellum Symposium: Navigating the Unilateral/Multilateral Divide

by Gregory H. Fox

[Gregory H. Fox is a Professor of Law and Director of the Program for International Legal Studies at Wayne State University Law School.]

How should the idea of a jus post bellum be integrated into existing international law?  A wide array of norms now applies to post-conflict states: international humanitarian law, jus ad bellum, human rights law, the law of international organizations, and occupation law to name only a few.  If a jus post bellum is to be seen as essentially normative — as opposed to serving as a set of ethical guidelines — it must come to terms with certain essential attributes of the international legal system it seeks to join.

In my chapter of Jus Post Bellum: Mapping the Normative Foundations, I argue that one of the most fundamental attributes of the contemporary post-conflict period is the distinction between norms regulating unilateral action and those regulating multilateral action.  The two are distinguished by the presence or absence of a Security Council resolution under Chapter VII of the Charter.   A Chapter VII resolution may remove the actors addressed by its terms from the regulatory regimes listed above.   A jus post bellum that ignored this bifurcated structure would risk either incoherence or irrelevance.   If it regulated only unilateral actors then it would become largely irrelevant, since the Security Council now issues Chapter VII resolutions on virtually all post-conflict states.  If it sought to regulate multilateral actors it would become incoherent, since a Chapter VII resolution trumps virtually all other sources of law.  A jus post bellum that asserted primacy over such resolutions would find little support in contemporary doctrine.

My argument relies on three propositions.  The first is that absent a Chapter VII resolution, the most significant legal regimes applicable to the post-conflict period – jus ad bellum, occupation law and the law of human rights — are almost exclusively directed at states.   The codification of jus ad bellum in Charter article 2(4) applies by its terms only to states.  The same is true for Article 51 concerning the right to self-defense.  By contrast, the Security Council is not limited by the jus ad bellum.  The criteria in Charter article 39 triggering application of Chapter VII have been interpreted to allow a much broader scope of action than Article 2(4) permits states acting unilaterally.

The modern law of occupation is set out in the Fourth Geneva Convention of 1949.  Like all the Conventions, the Fourth governs the conduct of the treaty’s “High Contracting Parties.”  To date, these have been limited to states.  Neither the U.N. nor any other international organization has even attempted to ratify the Convention.   In 1999, the U.N. Secretary-General issued a Bulletin declaring that U.N. forces would abide by a generalized set of humanitarian norms “when in situations of armed conflict they are actively engaged therein as combatants.”  The Bulletin contains no guidelines specific to occupation, though the protection of civilians (“protected persons”) is emphasized.  Some have suggested a functional approach:  occupation law should bind IOs when they are capable of complying with its terms.  But because, as Marco Sassoli notes, “some provisions of IHL cannot be applied to the UN since it lacks, e.g., a territory, a penal system, or a population,” the result would be less than full compliance with occupation norms.

But even if fully applicable to Chapter VII operations, a central provision of occupation law would severely limit the Security Council’s ability to carry out the broad-based reforms that have become central to its post-conflict missions.  Occupation law prohibits broad legislative acts by occupiers in an effort to preserve existing laws and political institutions in the territory.  Unlike the human rights obligations in occupation law, this “conservationist principle” does not duplicate IO practice; indeed, it is the very antithesis of what multilateral post-conflict missions seek to accomplish.  Those missions are reformist by their nature.

Finally, while human rights law famously helped break the state’s near-monopoly on legal capacity to acquire rights under international law, it has not generally expanded obligations beyond the state.  Robert McCorquodale puts the matter directly: “The international human rights law system is a state-based system, a system in which the law operates in only one area: state action. It ignores actions by nonstate actors, such as the United Nations . . . Nonstate actors are treated as if their actions could not violate human rights, or it is pretended that states can and do control all their activities.”  This despite the obvious reality that IOs such as the UN “can and do violate human rights.” (96 Am. Soc’y Int’l L. Proc. 384, 384 (2002))

The second proposition: even assuming one or more of these bodies of law would apply to both sets of actors in a post-conflict state, portions of the rules may be preempted under Chapter VII.  Security Council preemption is a consequence of Charter Article 103, which prioritizes commitments under the Charter over those imposed by other treaties.   This legislative power of the Council is now unexceptional, supported both by the ICJ and respected commentators.

The third proposition: if the web of treaty rules particularly important to post-conflict states – jus ad bellum, occupation law and human rights – was designed to regulate states acting unilaterally, the modern era has taken a decidedly different approach.  Starting in the early 1990s, the Security Council began engaging with all aspects of armed conflict.  The goal of multilateralizing warfare – integral to the Charter’s original design — has largely succeeded.  According to two major datasets of armed conflict, there were ten inter-state armed conflicts between 1990 and 2010.  All but two of these were addressed in one form or another by the UN Security Council.  The Council is also regularly involved in all aspects of civil wars, though precise data is not readily available.  For both types of conflict, the Council’s involvement has not been episodic but holistic, as it regularly addresses every stage and virtually every issue in armed conflict, from inception to termination.   This move to multilateralism has been particularly evident at the post-conflict stage.  The UN has become the indispensable actor in rebuilding political, economic and social institutions.  Its involvement has ranged from full international governance to advising transitional regimes.

The norms applicable to post conflict states are thus highly bifurcated.  On the one hand, the existing treaty regimes are state-centric in their design and also largely in their application.  On the other hand, the Security Council has multilateralized the post-conflict period for almost all states experiencing armed conflict in the last decade (to a greater or lesser extent to be sure).  But if we can assume the Council will not retreat from these reconstruction initiatives in the near future, existing post-conflict norms barely regulate the most important actor in the field.

Architects of a nascent jus post bellum thus face a dilemma.  The new regime can mirror the state-centrism of existing law, in which case it will be of questionable relevance to the IOs and IO-sanctioned operations dominating today’s post-conflict missions.  Alternatively, the new regime can expand its application to include multilateral actors.  But in that case it must provide a convincing justification for subordinating Council authorizations under Chapter VII to a set of treaty-based or customary rules.  That seems an impossible task.  A third alternative would be to acknowledge the difficulty of including both states and multilateral actors under the same normative rubric and either (i) settle for a jus post bellum that remains exclusively state centric or, (ii) include multilateral actors within the scope of the new norms but fully recognize that the Security Council may depart from those norms when it chooses to do so.

Perhaps jus post bellum’s ascent into law is premature.  If the roles of individual states and the Security Council in post-conflict states can be harmonized, perhaps a more uniform body of norms can emerge that does require tailoring to the unique characteristics of each.  At that point the division between the two might recede in importance.  But for now it remains fundamental and a jus post bellum cannot avoid reckoning with its implications.

Pari Passu Clauses: An Alternative Interpretation

by Hayk Kupelyants

[Hayk Kupelyants is a PhD candidate at the University of Cambridge]

Pari passu clauses remain perhaps the most nebulous clauses found in sovereign bonds. Among varying wordings, the clause in its simplest form provides that the bonds will rank pari passu (i.e., on equal footing). The clause puzzled many academics and has given rise to legal battles before national courts, for it is undeniable that the state is not subject to a bankruptcy regime where the pari passu treatment is naturally well-fitted.

Two interpretations have been offered to demystify the function of the pari passu in sovereign debt bonds. The first and the most controversial of these constructions argues that the clause requires equal payment to all, even holdout, bondholders. Recently, the Second Circuit Court of Appeal in NML v Argentina has endorsed this interpretation of the pari passu clause. Under this construction of the clause, a sovereign debtor is obliged to pay to all bondholders, even those who held out from the sovereign debt restructuring. The pari passu clause can thus become a powerful tool in the hands of holdout creditors which seek to reclaim the full value of the bonds they hold by claiming that the state is in breach of the pari passu clause by the mere fact of refusing to pay up.

Many academics have argued that this interpretation of the pari passu clause is too far-fetched (at least for the pari passu clauses that do not expressly refer to ‘payment’ in their wording). On its face, pari passu clauses simply require equal (legal) ranking, whereas the payment under bonds is a question of factual performance of the contract and not a question of priorities or ranking.

The second and the conventional interpretation of the pari passu clause argues that the clause merely ensures equal legal ranking and no factual equality in terms of payment. By this, the sovereign debtor would be under no obligation to pay to all bondholders.

Two counter-arguments spring to mind. Continue Reading…

Are Sole Executive Agreements Next on the Roberts Court Chopping Block?

by Peter Spiro

A constitutional challenge is in the works to Foreign Account Tax Compliance Act, the anti-offshoring tax measure that is the bane of ordinary US citizens worldwide. The law adds a burdensome layer of administrative requirements to longstanding citizenship-based tax liabilities. If you’re an American living in France, say hello to thousands of Euros in accountant fees.

Foreign banks are a key location for and target of FATCA enforcement, and the Treasury Department has been bringing them into FATCA’s orbit wholesale through bilateral executive agreements with industrial economies. These so-called inter-governmental agreements — “IGAs” in the FATCA glossary — facilitate FATCA compliance by allowing banks to report information to their own governments, who will pass it along to the IRS in turn. (For more on the IGAs, and to get a sense of how accountants and others will benefit, see fatca.thomsonreuters.com.)   IGAs have been controversial in other countries, not the least because the regime may override domestic privacy laws. But other governments have a reciprocal incentive to sign on: we report on offshoring that’s hurting you, you help us out with offshoring that hurting us.

In the US, FATCA (much less the IGAs) has hardly been a blip on the policy screen. The interests of external US citizens consistently fail to register in US politics. But the issue has now caught the attention of the GOP anti-tax crowd. Enter Jim Bopp with a constitutional argument that FATCA and the IGAs violate the Treaty Clause, the Fourth and Eighth Amendments.

I wouldn’t be taking this too seriously (the latter two arguments are not very credible), except that Jim Bopp was the lawyer behind . . . Citizens United.

The Treaty Clause argument is a plausible one, the doctrinal terrain at least unsettled. The FATCA agreements enjoy implied congressional authorization, at best, in the form of prior tax treaties. (McGill’s Allison Christians explains the argument — and its weakness — in this excellent piece for Tax Notes.) We have Dames & Moore taking a contextual approach to the legality of executive agreements undertaken without express congressional approval (before or after the fact). More recently, Justice Roberts adopted a constricted historical view of so-called sole executive agreements in Medellin.

There is a lot of history behind sole executive agreements but not much judicial precedent. Executive agreements have figured importantly in the Obama Administration’s muscular exercise of executive branch power (see this essay from then-Legal Adviser Harold Koh in defense). Could this be another platform for the Supreme Court to advance its formalist turn in foreign relations law?

Jus Post Bellum Symposium: In Defense of a Central Role for Sovereignty in the Jus Post Bellum Conversation

by dov jacobs

[Dov Jacobs is an Assistant Professor of International Law at the Grotius Centre for International Legal Studies, Leiden University and comments on international law issues at Spreading the Jam.]

Carsten Stahn, Jennifer Easterday and Jens Iverson have edited a comprehensive and rich volume on the law applicable in the aftermath of conflict, also known as Jus Post Bellum. This book covers a number of key areas on the timing and scope of jus post bellum, as well as timely discussions on the various bodies of law that might be relevant in that respect. As such it presents an important contribution to the legal, philosophical, sociological and political debates that occupy or should occupy those tasked with dealing with post-conflict situations.

One such debate relates to the relationship between jus post bellum and sovereignty and this is what I devolved my chapter in the book to. In the following blog post, rather than simply summarize the content of the chapter, I would like to briefly discuss the thinking behind writing it.

The starting point for me was the impression that sovereignty was often either forgotten or discarded to the periphery when discussing just post bellum issues. This was, on first analysis, intriguing because it is, or at least has been, one of the cornerstones of modern international law, and more generally, of international relations.

What I mean by « discarded » is that there there seems to be very little serious debate about sovereignty among a number of policymakers. This is possibly not that surprising in fact. “Sovereignty” is not a very popular term today in international law. It is considered to be an antiquated concept in our transnational and global world. More specifically, sovereignty is seen as an obstacle to the progressive spread of human rights. Sovereignty justifies claims by certain states that they are free to deal with « internal disturbances » and to reject any intervention (humanitarian or otherwise) in their domestic affairs. As a result, sovereignty is often presented as a problem, something to be fought and limited in order for more noble agendas to be realized.

In a way, sovereignty seems to have become the international law equivalent of Sauron’s eye in the Lord of the Rings : a vague, mostly undefined, ominous presence looming in the background and projecting its evil powers in various areas of the land.

What my chapter in the book aimed at doing is bring sovereignty back into the conversation in a more neutral way. This aim was grounded on two ideas. The first one is that sovereignty cannot be seen as inherently « good » or « bad ». More specifically, it is not ontologically an obstacle to human rights or the rule of law. In this sense, it is important not to confuse the empirical reality of how the concept evolved and is used on the discourse, and the concept itself. Which leads me to the second idea : sovereignty, in one form or another is a sociological necessity. What I mean by this is that sovereignty, in its simplest definition of a delegation of power (legislative, executive, judicial, police, administrative, etc.) to centralized authorities is an inevitable phenomenon in any human community that reaches a critical mass. This might seem like an obvious point to make, but it does appear to be forgotten in a lot, if not most of discussions on jus post bellum. This is illustrated in discourse and policy, for example, in what is, in my opinion, the over-emphasis on the role of civil society in providing basic social services, which should clearly be noted to be a short term solution, rather than a serious long term alternative to state institutions.

There is one challenge to my claim that sovereignty-related issues are underappreciated that I did not consider in my chapter and that I want to consider here. In a nutshell, I have been told that my concerns should be alleviated by the considerable focus on institution-building and capacity building, and more generally state building, as well as on the broader promotion of the rule of law and democracy. As a result, the argument goes, I should not be too bothered by the formal absence of the term « sovereignty » itself in most policy discussions on the issue.

I would like to venture several answers to this.

First of all, I do acknowlege that my concern does not necessarily have the same weight depending on the epistemic community or stakeholder concerned. Indeed, the idea that sovereignty is to be viewed with skepticism is mostly prevalent in the human rights discourse, as well as in certain circles of international criminal law. But given the weight of this discourse in the post-conflict discussions, as well as its pervasiveness in international affairs and in all branches of international law, I think the analysis remains valid.

Second of all, I think that there are areas of international law where it makes sense to continue to talk specifically about sovereignty, rather that resort to peripheral issues such of capacity building or rule of law. One such area which I discuss in my chapter is that of self-determination and statehood, which is an obvious component of a number of conflict situations and where issues of sovereignty are central. In those cases, sovereignty is not so much an obstacle to something else (like human rights) but something that is fought over by two sides and should therefore be taken seriously.

Third of all, more conceptually, I think that the concept of sovereignty captures something the complex relationship between the individual and the collective that is neither captured by the vague notion of rule of law (which is often shorthand for a bundle of human rights) or the idea of democracy (which is either also assimilated to human rights, or focuses too much on the consent of the « people » rather than on the authority of the sovereign). More specifically, what sovereignty implies which is not really dealt with by other concept is that there is something that the individual relinquishes to the sovereign, be it the capacity to legislate, execute laws without renewed consent everytime and the exercise of legitimate force to that effect. This idea of relinquishment of some individual choice (be it temporary or conditional) does not square well with the individual-centric logic that is at the heart of human rights.

In conclusion, I believe that sovereignty in a broad sense is a permanent feature of human institutions and, as a concept, helps us understand in ways that other concepts do not, the dynamic interactions between the individual, the collective and the inter-collective levels. In this sense, the ambition of the chapter, while proposing its own model to understand these dynamics through a revisiting of Georges Scelle’s role-splitting theory, was ultimately relatively humble and essentially methodological : by trying to wish away « sovereignty » for ideological reasons, a number of people, notably in the jus post bellum field, are depriving themselves of a key concept to understand the world they are trying to improve, thus making their own life harder, and, more importantly, drastically reducing their chances of success.

Jus Post Bellum Symposium: The Norm of Environmental Integrity in Post-Conflict Legal Regimes

by Cymie R. Payne

[Cymie R. Payne is Assistant Professor in the Department of Human Ecology at Rutgers University and the School of Law – Camden.]

In my contribution to Jus Post Bellum: Mapping the Normative Foundations, I claim that:

  • Existing treaty law prohibits some infliction of environmental damage, but only if it is “widespread, long-term and/or severe.”
  • There is evidence of state practice recognizing the importance of environmental integrity through rules of engagement and both formal and informal reparations.
  • There is also evidence of a normative belief in the right to environmental integrity and the obligation to respect that right during armed conflict.
  • Current scientific knowledge about the interactions of human and natural systems indicates that, even from a utilitarian and anthropocentric perspective, environmental impacts—even those of limited scope—can have serious consequences.
  • Consequently, the doctrinal law of armed conflict needs to be reviewed and modernized in light of scientific information about coupled human-environment systems, state practice, and widely held normative views regarding the environment.
  • Theories of jus post bellum that prioritize peacebuilding are more consistent with environmental integrity than retributive approaches.
  • Jus post bellum theory raises important questions about interventions in a defeated state in the name of environmental integrity, such as the restoration of Iraq’s marshlands or de-mining and safe disposal of the ordnance and other remnants of war.
  • Jus post bellum includes obligations and rights of the international community, as some aspects of the affected environment are the concern of humankind, not just the belligerents.

Carsten Stahn proposes jus post bellum as a body of legal rules and principles applicable after conflict to guide decisions in a transitional period. In this light, theories that prioritize peacebuilding over retribution accord best with environmental integrity. Indeed, the environment has been a source of innovation where it has been addressed seriously as a matter of jus post bellum, notably in the work of the UNCC and the UN Environment Programme (UNEP), discussed in the chapter. For example, formal environmental reparations have provided means for reconstruction, created a record of what happened, and may provide disincentive for repetition of unlawful acts. Other post-conflict practices that scholars of the jus post bellum could profitably study are environmental reconstruction and restoration efforts and ex gratia compensation payments, analyzing to what extent donors are motivated by legal norms of obligation, environmental solidarity, or the environment as a common concern of humankind.

The principle of environmental integrity that is at the heart of my argument is both easily understood and deeply ambiguous. I choose the term “environmental integrity” to characterize the principle because it, along with “ecological integrity,” is widely used in natural and social sciences where it generally refers to complete and intact natural system processes. It is also intuitively meaningful. In my proposed definition, it represents an obligation owed to the international community by states and individuals, belligerents, civilians, and peacekeepers. Its legal roots are in principles of human rights, public trust and just war. The International Court of Justice has recognized the environment as an “essential interest” of states in its Gabčíkovo-Nagymaros case, and in the Nuclear Weapons Advisory Opinion it described it as the “living space of[ … ] human beings.” The “no harm” principle accepted as customary international law implies environmental integrity as a complementary principle.

Ambiguity arises as to exactly what “environmental integrity” means. I argue that it should be understood primarily with reference to ecosystem function where that is in tension with cultural, political or economic definitions. Nonetheless, in the “Anthropocene era” it is difficult to identify a natural state since humans have affected almost every planetary system. In the post-conflict period, reparations programs have the problem of applying the Factory at Chorzów rule to “reestablish the situation which would, in all probability, have existed if that act had not been committed,” because it is often impossible to restore the pre-existing ecosystem functions even if it is possible to restore different ones. The resulting ambiguity is a subject for my current research.

The environmental integrity principle is needed because the scope of the environmental concern expressed in treaties is too restricted, incomplete, inadequately integrated into military activities, and too rarely enforced. Although both the NATO bombing of the Former Yugoslavia and Iraq’s invasion, occupation and retreat from Kuwait caused acknowledged environmental damage, legal experts have advised that neither reached the threshold of Additional Protocol I to the 1949 Geneva Conventions, Convention on Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD), and the Rome Statute for the International Criminal Court, which all use “widespread, long-term and/or severe” as the threshold condition for prohibited environmental harm.

Though ultimately adopted in the treaty, this phrase was widely criticized during the ENMOD negotiations, one delegation stating that “[i]t was alarming that the use of such monstrous techniques could be legitimized provided their effects were not ‘widespread’, which was defined by the co-sponsors as covering several hundred square kilometres, or ‘long-lasting’, defined as having a duration of several months or about a season, especially since in the assessment of such effects there would always be a large subjective element.” The UN Environment Programme (UNEP) has criticized it as both too stringent and too imprecise; the ICRC would also apply a different standard. The UN Compensation Commission, operating under Security Council Resolution 687 and in a context where the respondent was not a party to the treaties, declined to apply “widespread, long-term and/or severe” as a threshold in its claims review and eventual award of over US$5 billion for environmental reparations.

The environment is often seen as the background to the fighting and its human tragedies—we see little in the news about toxic effects of chemical weapons on soil and water, killing of wildlife (including gorillas and elephants), oil spills, destroyed landscapes or felled forests in Syria, Afghanistan, Iraq or the Democratic Republic of the Congo. Yet environmental integrity is an essential part of breaking cycles of conflict, restoring societies and reestablishing the rule of law.

Jus Post Bellum Symposium: Jus Post Bellum, Lex Pacificatoria, and Transitional Justice

by Christine Bell

[Christine Bell is Assistant Principal (Global Justice), Professor of Constitutional Law, University of Edinburgh.] 

A big congratulations on the editors for the new volume on Jus Post Bellum.  It is a great resource for those interested in all aspects of the debate and forms a comprehensive mapping of a broad range of perspectives.

One of the interesting aspects of the book is the constant interrogation of where Jus Post Bellum sits with regard to other similar and potentially competing concepts: transitional justice, lex pacificatoria, and R2P.   Several authors – myself included – either advocate these alternative perspectives, or discuss how jus post bellum might be reconciled or ‘cross-fertilized’ with these perspectives.

While I touched on this in my chapter, I have on reading the book wondered more and more why there has been such a need to ‘invent’ new concepts – or in the case of jus post bellum ‘rediscover’ and ‘reinvent’ old ones, to address our current context.  What is going on, when a range of people invent largely similar concepts that work in similar ways to try to capture what they feel they see going on in the interface of law and practice?

As with any book, reading it comes together with other things you are reading and working on when you receive it.  For my own part, the timing of the book, has come together with discussions we have been having in the Global Justice Academy, on Global Law, and Global Constitutional Law.    Most recently, last Friday we debated the draft text of Neil Walker’s book on ‘Intimations of Global Law’ (forthcoming), where he examines the different ways in which a concept of ‘global law’ might already be with us, if as yet fully unformed or ‘intimated’ rather than arrived and settled.

In it he groups perspectives such as jus post bellum, lex pacificatoria, humanity law, and also a ‘new law of international recognition’, (and I suspect could also include transitional justice and perhaps R2P) as ‘hybrid laws’  – one of seven ‘species’ of global law.

I will not rehearse here how he conceptualises these new ‘hybrids’ – for that you must buy and read his book (!).  Rather I suggest some of the dynamics that have pushed towards these particular overlapping conceptualisations of the role of international law in post-conflict environments.

First, these hybrids revolve around international law’s reach into the realm of domestic politics, and an attempt to regulate what in a sense could be understood as ‘constitutional moments’.  Second, they all constitute attempts to grapple with the lack of a clear war / peace distinction, which in turn frustrates attempts to work within the traditional boundaries of international human rights law, and international humanitarian law.  Third, they all have been shaped by the fast-paced evolution of international organizations from a position of seeing conflict within states as ‘not their business’, to placing such conflict at the centre of their business.

As Walker points out, all the conceptualizations also have in common that they see law not merely as passive regulator, but as in some sense generated by context, and responsive to it.  In this, all three – like other manifestations of ‘global law’ appear at once, able to pull on substantive evidence of their existence, and in another sense remain simultaneously incomplete, immanent, or as Walker puts it ‘intimated’ rather than with us.

Although this new Jus Post Bellum collection does not use this language, in stepping back from projects of regime creation, into concepts of ‘Jus post bellum’ as Dworkinesque ‘integrity’, or as ‘partial law’, or ‘project’, the intimated quality of ius post bellum has become much clearer, paradoxically, as the content of the concept has become more scattered and less tangible.  The strength of the concept as so refined, is in a sense the strength of the book: it points to a potential for jus post bellum to operate less as regime and more as discursive concept, through which we can interrogate a set of inter-linked moral, legal and political dilemmas that attend processes of peace-making.

Did You Know Hazarding a Vessel Was a War Crime? Me Neither.

by Kevin Jon Heller

We have a new challenger in the competition for worst decision by a military commission ever! Judge Pohl has now issued an order in al-Nashiri concluding that Charge IX, Hijacking or Hazarding a Vessel or Aircraft, states a violation of the international laws of war. Here is the definition of that “war crime,” 10 U.S.C. § 950t(23):

(23) Hijacking or hazarding a vessel or aircraft.— Any person subject to this chapter who intentionally seizes, exercises unauthorized control over, or endangers the safe navigation of a vessel or aircraft that is not a legitimate military objective shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

Hijacking or hazarding a vessel is not a grave breach of either the Geneva Conventions or the First Additional Protocol. The Rome Statute does not criminalise hijacking or hazarding a vessel. No international tribunal has ever prosecuted the hijacking or hazarding a vessel as a war crime — not the IMT, not the ad hocs, not the ICC. The ICRC’s study of customary IHL does not mention hijacking or hazarding a vessel — although it does note that both the US Naval Handbook (Vol. II, p. 3893)  and The Restatement (Third) of the Foreign Relations Law of the United States (Vol. II, p. 3938) specifically distinguish between hijacking and war crimes. And so on.

How, then, does Judge Pohl somehow conclude that hijacking or hazarding a vessel is a war crime — as opposed to attacking civilians or civilian objects, both of which are war crimes and are both of which are also detailed in al-Nashiri’s charge sheet? By citing the widespread ratification of the Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation.

Seriously. By citing the widespread ratification of the Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation.

Here is what Judge Pohl says (emphasis mine):

The M.C.A. prohibits conduct that “endangers the safe navigation of a vessel.” The similarity between the M.C.A. and the SUA Convention is plain and unambiguous. The SUA Convention proscribes the same conduct the M.C.A. proscribes and of which the Accused is charged… The Commission finds by a preponderance of the evidence the Prosecution has demonstrated the crime of Hijacking or Hazarding a Vessel or Aircraft is based on norms firmly grounded in international law and can be plainly drawn from established precedent. Therefore, the Commission concludes the offense of Hijacking or Hazarding a Vessel or Aircraft was an international law of war crime at the time the Accused allegedly engaged in the conduct, thus conferring jurisdiction over the offense.

That’s it. That’s Judge Pohl’s entire argument. Never mind that the SUA Convention says nothing about the laws of war, applying equally in armed conflict and peacetime. Never mind that the SUA Convention does not even purport to create an international crime — it is, of course, a suppression convention that simply obligates States Parties to domestically criminalise certain acts. Never mind that, even if it is possible to argue that the widespread ratification of the SUA Convention somehow creates a customary rule prohibiting hijacking or hazarding a vessel (difficult in itself), such a customary rule would still not create “an international law of war crime.”

I hope I don’t need to explain in more detail why the widespread ratification of a suppression convention doesn’t create a war crime. But let’s take Judge Pohl’s methodology seriously. Want to know what other kinds of acts are also war crimes prosecutable in a military commission?

  • Nuclear proliferation (NPT — 190 ratifications)
  • Threatening civilian aviation (Safety of Civilian Aviation Convention – 188 ratifications)
  • Drug trafficking (Illicit Traffic in Narcotics Convention – 188 ratifications)
  • Manufacturing hallucinogenic drugs (Psychotropic Substances Convention – 182 ratifications)
  • Using child labor (Worst Forms of Child Labor Convention – 177 ratifications)
  • Transnational organised crime (Transnational Organized Crime Convention – 176 ratifications)
  • Kidnapping diplomats (Internationally Protected Persons Convention – 176 ratifications)
  • Corruption (Anti-Corruption Convention – 167 ratifications)
All of those conventions are suppression conventions — and each has been much more widely ratified than the SUA Convention. According to Judge Pohl’s logic, therefore, all of those acts are also violations of the international laws of war.In the off chance you needed additional proof that the military commissions are a joke, Judge Pohl’s decision is Exhibit A.

Jus Post Bellum Symposium: Peace Agreements as a Framework for Jus Post Bellum

by Jennifer S. Easterday

[Jennifer Easterday is a researcher for the Jus Post Bellum Project at the Grotius Centre for International Legal Studies, Faculty of Law, Leiden University.]

In my chapter of this volume, I suggest that jus post bellum should be considered as a broad, holistic concept that includes different functions: jus post bellum as providing a body of norms, as an interpretive framework, as a site of coordination, and as a site of discourse. I argue that a multi-faceted concept of jus post bellum can be informed by the norms and practices associated with developing and implementing post-conflict constitutions that arise out of peace agreements (“constitutional peace agreements”). Here, I will focus on jus post bellum as an interpretive framework, and how examining constitutional peace agreements can inform that function.

Constitutional peace agreements seek to transform conflict to peace by shifting violent conflict into political discourse. These agreements shape the environment in which jus post bellum operates. They provide a legal framework for a given situation and influence how the laws and norms of jus post bellum would be applied. They can serve as useful indications of the most important issues at the root of the conflict and provide a normative framework for the transition to a sustainable peace. Moreover, the processes of negotiating, drafting, and implementing constitutional peace agreements, and the law of peacemakers—or the “lex pacificatoria”—suggest important practices that could shape jus post bellum as an interpretive framework.

Considered broadly, constitutional peace agreements attempt to transform conflict to peace by (1) transforming societal norms; (2) bargaining and negotiating over solutions to the underlying causes of conflict; (3) creating a space for peaceful discursive conflict resolution; and (4) creating new state institutions. In undertaking these transformative steps, the study of peace agreements indicates the need for common norms and an interpretive frame that can help foster sustainable peace. Constitutional peace agreements can go further in addressing wider notions of justice and issues critical for peace than international law. Using peace agreements as a guide, jus post bellum could more adequately address issues of justice, social truth, and the needs of victims of conflict.

Peace agreements translate between the different spheres and regimes that jus post bellum must navigate, including domestic/international, legal/political, and war/peace. Constitutional peace agreements navigate a “messy” middle way to peace, a tactic that could be useful for a flexible, context-specific jus post bellum. As argued by Christine Bell in the volume, it is important to leave these “messy” spaces of contestation and negotiation, in order to best maneuver what she calls the “dual commitment” of understanding both what justice requires and the evolving ideas of what justice means. In order to approach the transition from conflict to peace from a holistic point of view, jus post bellum will need to be able to accommodate changing priorities. In turn, through its holistic focus on sustainable peace, jus post bellum can provide interpretive principles or considerations as to how these priorities should be balanced throughout the transition.

Jus post bellum can also draw on our developing understanding of the shortcomings of constitutional peace agreements. Peace agreements are limited by who sits at the table and can result in counter-productive political arrangements. Indeed, the importance of inclusion is one of the biggest lessons jus post bellum might learn from constitutional peace agreements. The inclusion of multiple voices and the balancing of competing priorities can influence the potential success (or failure) of the constitutional peace agreement. In practice, jus post bellum will also face similar issues with respect to inclusion and balancing interests—peacebuilders will need to take special consideration of interests that might historically be under-represented, even if they have not been immediately party to the conflict or represented in the constitutional peace agreement.

Furthermore, constitutional peace agreements can be difficult to implement and risk being undermined by spoilers, giving rise to a fragile normative basis for peace. They also leave gaps and silences with respect to critical issues, such as gender equality, that can undermine peace efforts. (Although, as I argue in the volume, jus post bellum’s focus on sustainable peace could help fill those gaps.) With international involvement, constitutional peace agreements may reflect neo-colonialist tendencies or be further weakened by imposed timelines and competing priorities of international interveners.

This last point is a critical one, given the prevalence of international interveners in peace agreement negotiation, drafting, and implementation. According to an analysis of a UN peace agreement database, peace agreements nearly always have some type of international involvement. Studying the successes and failures of constitutional peace agreements suggests that jus post bellum should include principles for international interventions that reflect the following:

  • transparency (especially about certain non-negotiable policies that might arise during consultations, such as amnesties for international crimes)
  • accountability (e.g. adhering to the same human rights standards they are promoting)
  • having a base knowledge of the language and culture of the country
  • acting collaboratively with all segments of society
  • prioritizing the interests of society over those of interveners
  • taking a long-term, holistic view to normative and practical issues
  • taking a unified and coherent approach to balancing competing goals
  • ensuring there is sufficient time for outreach and public education about peacebuilding processes
  • maintaining a limited and legitimate international influence over the process; and
  • the inclusion of women’s interests and traditional concepts of justice as peacebuilding priorities, amongst others.

These principles could form the basis of a jus post bellum interpretive framework, in which the application of laws or implementation of peacebuilding projects is undertaken in an effort to maximize, for example, inclusion, local ownership, and coherence. They could form a practice-oriented basis for the jus post bellum “ethics of care” called for by Carsten Stahn elsewhere in this symposium.

Based on an examination of the practice and particularities of drafting peace agreements and post-conflict constitutions, it seems that rather than prescribe hard-and-fast rules for liberal institutional design, it is critical for jus post bellum to include a set of flexible standards that aim to optimize sustainable peace within a framework that can function in specific contexts. I argue that jus post bellum should not be limited to rigid rules or laws. Jus post bellum can—and should—be fluid and context-specific and involve the larger polity of a conflict state.

No, the Attack on the USS Cole Did Not Take Place in Armed Conflict

by Kevin Jon Heller

I argued more than three years ago that the US decision to prosecute Abd al-Rahim Abdul al-Nashiri in a military commission was illegitimate, because the attack on the USS Cole did not take place during an armed conflict. (I also pointed out that al-Nashiri was systematically tortured, including through the use of mock executions and waterboarding.) Peter Margulies takes a whack at the contrary position today at Lawfare, and the results aren’t pretty. Here, for example, is what he says about the Tadic test:

Under international law, the existence of a noninternational armed conflict depends on the intensity and duration of violence and the existence of an organized armed group (OAG) responsible for the violence. The OAG criterion is readily met: “core” Al Qaeda ordered the Cole attack and used it as a basis for recruiting more terrorists. The geographic distance between Yemen and Afghanistan is irrelevant given the centrality of Al Qaeda’s planning, which placed Osama bin Laden and Al-Nashiri in the same OAG.

The duration and hostility factors also break against Al-Nashiri. In the MCA, Congress gave military commissions jurisdiction over acts committed before September 11, recognizing that Al Qaeda’s military efforts against the US predated that event. The conduct of the US prior to the Cole bombing buttresses Congress’s finding. In August, 1998, President Clinton responded to the Al Qaeda-planned East African Embassy bombings, which killed over 250 persons, with a wave of Cruise missile strikes in Afghanistan and Sudan. That sounds pretty intense to me, although the intensity seems lost on Al-Nashiri’s advocates.

Margulies gets the NIAC test right, and he is even likely right that al-Nashiri was part of “core” al-Qaeda at the time of the attack on the USS Cole. But his discussion of the duration and intensity factors is deeply flawed. To begin with, as I have pointed out before (numerous times), the existence of a NIAC is a purely objective question, one determined by the facts on the ground, irrespective of the subjective perception of the parties to the hostilities. The MCA’s jurisdictional provisions are thus irrelevant to whether the US was involved in a NIAC with core al-Qaeda when the USS Cole was attacked.

More importantly, it is clear that no such NIAC existed at the time of the attack…

Jus Post Bellum Symposium: Towards an Alternative Paradigm–Jus Post Bellum as Transitional Justice

by Ruti Teitel

[Ruti Teitel is the Ernst C. Stiefel Professor of Comparative Law, New York Law School, Visiting Fellow, London School of Economics, www.securityintransition.org.]

I am delighted to participate in the discussion regarding Jus Post Bellum: Mapping the Normative Foundations.  The book’s publication on the 100th anniversary of World War I and its aftermath set out in the Treaty of Versailles reflects the growing appreciation of the importance of the area of the law of war known as jus post bellum.  Yet the relationship of law to conflict today is a complex one, and contemporary circumstances hardly reflect utopianism. There are important changes in post bellum expectations beyond the return to the status quo ante and I regard these as best captured by a more comprehensive concept and vocabulary associated with these periods of political flux: transitional justice.

Getting Beyond the Restoration of the Status Quo Ante

What is owed to Iraq or to other peoples who are the ‘beneficiaries’ of wars of supposed liberation? This is the burning question of the last decade in Iraq, Afghanistan, and most recently Libya. With the end of the Cold War we have seen a return to wars of intervention, with implications for the scope and character of jus post bellum. Where a war is justified on humanitarian grounds, i.e., a just war, what are the implications of this justice in the ad bellum for jus post bellum?  Might the injustice of a war’s beginning imply greater post-war duties? Or does the logic work the other way around? In the event that a war is initiated for humanitarian reasons might that well imply added duties, whether during or after the conflict? Just how does post-war justice relate to the broader questions concerning the meaning and direction of the justice of war?  And to what extent does the contemporary iteration of the just war tradition, its principles and values guide the question of what must be done following a conflict?

There is a need to rethink the earlier classical approach to post-war justice as being fundamentally restorative. Posing the question today of what values and related principles regarding rights and duties should apply, as this book does, jus post bellum inevitably constitutes a departure from a focus on restoration (which takes implicitly or explicitly the pre-war status quo as a decisive normative benchmark). Historically, this area was dominated by a preoccupation with unjust wars and the settlements that followed those wars, focusing on restraining or regulating the punishment of the aggressor for disrupting the status quo ante.

This view of post bellum is in historical or retrospective terms – where what is at stake is responsibility in a backward-looking way, as guided by the justice of the war purpose itself and the goal of returning to pre bellum conditions.

In this context, victors were free to punish, within determined constraints – limits on collective punishment, spoils of war, plunder, return of prisoners of war, occupied territory, etc. This was often complemented by amnesties and reparation schemes animated by restorative objectives. The post-World War I settlement at Versailles, the current anniversary of which we are currently marking, was widely regarded as an instance of failed justice and, even worse, as having the effect of promoting the return of war.

Now, however, we can see that we are moving away from this traditional approach to jus post bellum in a number of ways: first, there is a move away from the dominant concern of jus post bellum conceived as a backward-looking, often retroactive enterprise, and as restraint on retribution, to a broader framework involving a host of duties that relate not just to the past but also to an often protracted present, as well as forward-looking goals for a peaceful future. The aegis or subject of post bellum norms has become greatly expanded.

Many questions today concerning what obligations attend aftermaths are being raised in the context of transition, sometimes following conflict, often not.  For a number of reasons, this view increasingly overlaps with conflict. At a time of persistent smaller conflicts, i.e., of pervasive violence, often of ongoing internal conflicts where there is no clear end, and which are not even clearly about state-building or democratization, this inquiry leads to a questioning of the meaning of ‘post bellum’ in jus post bellum. As some of the authors in this volume concede, the parameters of post bellum have become murky.

Moreover, there is a related shift in our understanding of responsibility away from the state-centric view as the singularly relevant subject of jus post bellum, as the older view of restoration assumed the state to be the relevant object of restoration. At the same time, there has been a move away from collective sanctions levied upon a state or its people. Individualized punishment is clearly on the rise, most dramatically through international criminal justice.

Towards an Alternative Paradigm: Jus Post Bellum as Transitional Justice

In the current context, one can see that justice considerations enter the picture from the outset, taking into account that humanitarian considerations have been invoked as a justification for war itself. In today’s wars of liberation, internal ethnic conflicts are often involved; the issue is as much or more to do with settling scores with fellow citizens as punishing a foreign aggressor. Clearly, this brings transitional justice to the fore.

Insofar as the new wars are often conflicts animated by the values of liberalization, freedom, and so on, we can see ways in which the aegis of jus post bellum overlaps with the aims of transitional justice. Justice is not conceived as strictly punishment oriented, as assumed in the legalist paradigm. Nor is it confined to restitution and the restorative dimension implied by the earlier understanding of post-war justice. Indeed, it could well take in the full context and modalities of transition and transformation. The issue is being reconceived in terms of justice as security. Within the evolving framework, there is a concern to identify responsibility beyond the state to private actors as well. There are duties that follow even when a war is just.

Thus, ‘post bellum’ seems too limited or inappropriate today because of the unstable or undetermined boundaries between conflict and post-conflict situations. Transitional justice is arguably more capacious because it allows for advancing goals beyond those associated with a war’s beginning, such as transformation, namely purposes going beyond retributive or restorative justice.

I invoked the term ‘transitional justice’ in 1991 to represent a move away from the discourse that associated such phenomena purely with the law of conflict. The idea was that the aims of such processes were in part forward-looking – involving democratization – and not merely backward-looking and enmeshed with war. Moreover, the use of the term ‘transitional justice’ also addressed the central issue of the time: the extent to which the relevant democratization processes seemed less revolutionary and more gradual, more transitional, often taking decades, for example in post-dirty war Latin America. We now have a rich set of illustrations from the post-Soviet bloc, Asia, and the Middle East.

The increasingly pervasive involvement of courts and tribunals in matters of post- conflict justice demands a conception of proportionality that is not simply political but also jurisprudential. This is far from being limited to criminal trials. One also thinks of Alien Torts Claims actions in the United States and the role of the Inter-American Court of Human Rights and the European Court of Human Rights in post-conflict accountability. We can see that justice today has gone from a prerogative of the victor, which needs restraining, to a shared international obligation. This development in and of itself informs the meaning of the new proportionality.

With renewed demands for military intervention, interest in post bellum justice has never been greater. Given the human rights revolution, to be sure, interventions are being justified on human security grounds but also waged in the context of new constraints, of human rights and international humanitarian law, as well as democratization. This goes some way to explaining the extraordinarily high demands for post bellum justice, which has now expanded to cover a broader period associated with conflict and to address the security, not just of states, but of persons and peoples.

Jus Post Bellum Symposium: Contrasting Transitional Justice and Jus Post Bellum

by Jens Iverson

[Jens Iverson is a Researcher for the ‘Jus Post Bellum’ project and an attorney specializing in public international law, Universiteit Leiden.]

I would like to thank Opinio Juris for the opportunity to discuss the contrast between Transitional Justice and Jus Post Bellum.  This is a subject I have explored in Jus Post Bellum: Mapping the Normative Foundations, in the International Journal of Transitional Justice, and in Jens David Ohlin’s blog, Lieber Code.

I begin with basic definitions of each term, and then briefly discuss the application, goals, and future of each term.

The most useful definition of Transitional Justice

In Transitional Justice Genealogy, Ruti Teitel defines Transitional Justice “as the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.”  This is, of course, not the only definition of Transitional Justice, but I think it is one of the best.

Subsequent definitions tend towards vagueness.  The UN defines Transitional Justice as “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.”  This lacks any specific mention of political change.  The International Center for Transitional Justice describes Transitional Justice as “an approach to achieving justice in times of transition from conflict and/or state repression.”  This lacks not only an emphasis on political change, but does not require state wrongdoing for the notion to apply, including also transition from conflict.

The main substantive emphasis of Transitional Justice should be on justice for human rights violations in the context of political change.  Armed conflict is unnecessary for the concept to apply.  The goals of Transitional Justice are fundamentally tied to the aspiration of transition, both towards justice for past violations and towards a cementing of a new political order that will prevent the old order, with its attendant human rights violations, from returning.

The most useful definition of Jus Post Bellum

The most useful definition of the term jus post bellum is the body of legal and ethical norms that apply to the the transition from armed conflict to a just and sustainable peace.  Jus post bellum must be understood in the context of its sister terms, jus ad bellum and jus in bello.  All of these terms are concerned with the use of armed force as a matter of primary, central importance.  Collectively, they seek to describe the constraints, capacities, obligations, and rights regarding whether armed force may be used at all, related to the use of armed force during armed conflict (how it may be used), and with respect to the transition from armed conflict to a just and sustainable peace.

In contrast to Transitional Justice, the substantive emphasis of jus post bellum is broader than human rights violations.  It also includes post-conflict restitution including restitution for property loss, violations of the laws of armed conflict that tend to affect the subsequent peace, environmental law (including legal access to natural resources and regulating the toxic remnants of war), state responsibility outside of the realm of human rights, recognition of states and governments, laws and norms applicable to peace treaties and peace agreements, peacekeeping, occupation, and post-conflict peace building.  It includes both applicable international law and the specific domestic laws.  It involves the application of both persistent areas of law that apply both during the transition to peace and during other periods (e.g. human rights, international criminal law, state responsibility, investment law, refugee and asylum law) and non-persistent areas of law that only (or mainly) apply during the transition to peace and not at other times (lex pacificatoria, the creation and immediate application of amnesty, post-conflict lustration, post-conflict reconstruction).  Jus post bellum is rooted in these legal concerns, and also in the tradition of considering the ethics of war known as the Just War tradition.

Contrasting the Application of Transitional Justice and Jus Post Bellum

While jus post bellum is substantively broader than Transitional Justice in many respects, jus post bellum is also clearly inapplicable in many scenarios where Transitional Justice is applicable.  Following a peaceful, non-violent revolution or regime change, the principles of jus post bellum may apply by analogy, but not directly.

Similarly, one can imagine a change in regime in which no significant human rights violations were perpetrated by the previous regime, deposed by armed conflict.  Armed conflicts happen without massive human rights violations.  Additionally, armed conflicts occur without regime change.  In these instances, Transitional Justice would tend not to apply, but jus post bellum would.

Contrasting the Goals of Transitional Justice and Jus Post Bellum

Just as jus post bellum is necessarily connected to an armed conflict, to the degree that jus post bellum has an aspirational character, it must relate in part to questions of war and peace.  One would think that jus post bellum is tied to the contemporary aspirational character of jus ad bellum and jus in bello: to constrain the use of armed force.  A just and sustainable peace is a central aspirational norm of jus post bellum, following a long but not uncontested tradition in international law.

The goals of Transitional Justice, in contrast, are tied to a transition in the human rights regime.  This is not to say that human rights norms are not central to jus post bellum—they are.  The supposed tension between different maximands such as peace and justice or truth and justice is frequently overblown.  Discovering the truth about human rights violations and achieving justice for those violations is widely-recognized as important in building a positive peace.  But there will be responses to human rights violations that are not properly the concern of jus post bellum.

The Future of Jus Post Bellum

Whether Transitional Justice and jus post bellum continue to grow and endure as useful concepts depends in part on whether these terms are defined with sufficient rigor.  Because both terms deal with complex phenomena and benefit from scholarly interest from disparate fields and traditions, coming closer to a consensus on the definition of these terms is difficult.  Since Transitional Justice and jus post bellum will often (but not always) apply simultaneously, it is all the more important to attempt this difficult task—to define both terms clearly and develop them in accordance with contemporary realities.  It is important to recognize that multiple maximands will co-exist, rooted in the separate but related traditions, sometimes in tension, but hopefully almost always carried forward with good will.

Jus Post Bellum Symposium: Omission Liability and Jus Post Bellum

by Jens David Ohlin

[Jens David Ohlin is a Professor of Law at Cornell Law School; he blogs at LieberCode.]

In the following post, I want to explore why jus post bellum is controversial in some quarters, and why its legal content has not been more quickly or more wholeheartedly embraced by our legal system.  Of course, the term jus post bellum is an expansive one, covering different legal and philosophical doctrines.  Drawing my inspiration from the contributions in the new book edited by Carsten Stahn, Jennifer Easterday, and Jens Iverson (Jus Post Bellum: Mapping the Normative Foundations), I will take the core elements from some popular jus post bellum arguments, and show that our intuitions about omission liability constitute a major obstacle to a more thorough adoption of jus post bellum principles.

As Eric De Brabandere explains in his highly critical chapter, the legal responsibilities associated with belligerent occupation are triggered by a purely factual element: the existence of an occupation.  At least in law, the lawfulness or justness of the original invasion has no bearing on the responsibilities attributed to an occupying power. Illegal invaders and legal invaders alike are subject to the same responsibility.  Although an asymmetry of responsibilities based on the justness of the invasion (jus ad bellum) might be philosophically attractive in the context of Just War Theory, it would be problematic from the perspective of international law which regards jus in bello and occupation responsibilities as being wholly disconnected from jus ad bellum concerns.

Furthermore, the law of occupation only imposes its obligations if the power actually engages in an occupation.  If the invading force immediately leaves, and does not occupy the territory, then the machinery of the law of occupation is never brought to bear on the situation.  Under this body of law, there is no affirmative duty to occupy a territory — only conditional obligations on belligerent powers that decide to occupy a territory.

Here is where jus post bellum can do its work: it can confer a responsibility on belligerent forces to occupy, under a theory that there is a duty to fix the civil infrastructure destroyed by war, re-constitute a commitment to the Rule of Law, and restore human rights.  For some philosophers, an attacking force’s unjust invasion would heighten those responsibilities.  Either way, the idea is that the belligerent force might be morally or legally responsible for its decision not to occupy the country and deploy the necessary resources to restore it.  The belligerent force would be liable for its omission: failing to fix the post-conflict society.

The reason this is controversial, and constitutes an argument de lege ferenda, is because the law is generally hesitant about imposing liability for omissions.  Generally speaking, omissions only generate liability if there is a pre-existing duty to act, and the law is rather stingy about imposing affirmative obligations.  Of course, different legal systems and legal cultures have varying degrees of tolerance for omission liability.  The standard line, somewhat exaggerated, is that common law systems rarely impose an affirmative duty to act, while civil law jurisdictions are much more comfortable imposing such duties, e.g. a duty to rescue.  Although this summary is simplistic and reductive, there is a grain of truth to it.

International law is also somewhat hesitant about imposing affirmative obligations from which an omission could trigger obligations, though I think civil law trained international lawyers are generally speaking more comfortable with the idea than common law trained international lawyers.  Even the split between the ICCPR and ICESCR in human rights law can be viewed through this lens.  The ICCPR imposes negative duties to refrain from certain conduct, while the ICESCR imposes positive duties to act, although even in that case there is a plausible account of why the government has an affirmative duty to care for its own citizens – from which an omission would trigger some liability under the law.

In the field of inter-state regulation, however, states have few positive duties towards other states that could trigger omission liability.  The Responsibility to Protect (RTP) Doctrine, examined in Carsten Stahn’s chapter, is one such example.  Under RTP, the world community has a responsibility to protect foreign civilians from the horrors of war, thus generating a corresponding right of intervention.  The basic structure of the doctrine is the old philosophical adage: ought implies can.   Since states ought to protect civilians from atrocity, they have the right to do so (up to and including crossing international borders if necessary under some versions of the doctrine).

The structure of the RTP doctrine is the same; it imposes a soft form of moral liability for states’ failure to act — their omissions.  At least it does if you take seriously the idea that there is a responsibility to protect.  If a state violates this responsibility, then it is responsible for its omission.  This is precisely why RTP is also controversial.  It imposes affirmative obligations that can generate omission liability – obligations that international law has generally avoided codifying.

An underlying theme in this entire debate is the split between legal and philosophical discourses.  While lawyers are usually hesitant about imposing affirmative duties giving rise to omission liability, philosophers are far more comfortable with the idea. In particular, they are comfortable positing affirmative duties to moral agents who are capable of alleviating a great harm to others without enduring a significant burden.  In the alternative, some philosophers are comfortable with imposing a negative duty on agents to alleviate the harms associated with their actions.

Gregory Fox, in his chapter on the Unilateral/Multilateral Divide, gestures in this direction when he cites the environmental law principle of Common but Differentiated Obligations (CDO), which impose higher obligations on developed states under the theory that they have a responsibility, sounding in corrective justice, to remediate the environmental degradation caused by their historical actions.  However, Fox then goes on to note that “this claim has little application to jus post bellum; the history of the actors involved has little bearing on how they should conduct themselves in post-conflict states.”  This is right insofar as international law is hesitant to link jus post bellum obligations with jus ad bellum violations, but I do think international lawyers are more comfortable imposing omission liability when it violates a pre-existing duty triggered by a state’s past conduct (use of force whether lawful or not).

It is this last idea that contains the most promising element of the jus post bellum framework.  For states that engage in military action, they might have a negative duty to mitigate the harm associated with their military action.  Of course, De Brabandere is worried about linking these obligations to jus ad bellum considerations.  Some jus post bellum obligations might be imposed on states that engage in military force in violation of jus ad bellum.  But rather than view this as collapsing the distinction between jus ad bellum and jus in bello, proponents of this approach view it as a sanction associated with the jus ad bellum violation; states that violate the UN Charter are required to mitigate the consequences of that illegality.  Although this is conceptually sound, I agree with De Brabandere that international law should probably avoid this approach. Making jus post bellum requirements symmetrical for just and unjust attackers alike will be easier to enforce in international law and will ultimately make jus post bellum a more successful and influential legal framework.

Weekly News Wrap: Tuesday, May 6, 2014

by Jessica Dorsey

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

Africa

Asia

Europe

Middle East and Northern Africa

Americas

UN/Other

Jus Post Bellum Symposium: Jus Post Bellum–The Value of an Interpretive Conception

by James Gallen

[James Gallen is a Lecturer in the School of Law and Government at Dublin City University.]

Jus Post Bellum: Mapping the Normative Foundations provides an important assessment of the potential of international law to shape post-conflict societies in a space of competing and fragmented debates. I agree with Eric de Brabandere’s contribution to this symposium that if jus post bellum is to add real value, it must demonstrate an advantage beyond existing approaches in areas such as peace-building or transitional justice. However, I am more optimistic that distinctive value can be added by an interpretive conception of jus post bellum.

The need for an interpretive approach to the concept arises from the considerable diversity of post-conflict societies, the range of international actors involved and the numerous areas of existing international law and policy relevant to post-conflict issues. These factors, among others addressed in this book, render questions of justice after conflict highly complex, but it remains glib not to query whether that complexity can be clarified and conquered.

I argue for the use of Dworkin’s concept of integrity to construct a coherent interpretation of this complexity in a jus post bellum framework. To pursue integrity analytically, Dworkin distinguishes between “fit” and “justification.” The former is concerned with providing an interpretation that matches the existing practice and body of law. The latter seeks to identify the best justification for this practice. The task of jus post bellum as integrity is to therefore offer a description of the existing international law, policy, and theory as applied to specific societies and to coherently justify this description by reference to its value goals. To guide this interpretation, I argue the principles of stewardship, proportionality and accountability are necessary but insufficient conditions for a coherent account of actions taken in the aftermath of conflict.

My intention for jus post bellum is to encourage states and international organisations to justify incoherence between their stated commitments in post-conflict societies and the absence of a coherent and consistent approach to those commitments. This intention seeks to address Roxana Vatanparast’s concerns in this volume that jus post bellum could be appropriated by neo-colonial interests and damage the legitimacy of its values. For instance, an interpretation that pursues integrity could challenge the present, largely fragmented, approach to accountability in international law. The United Nations seeks to promote accountability for gross violations of human rights after armed conflict, yet also is subject to considerable criticism of impunity for the sexual misconduct of its own personnel and the allegations that its peacekeepers brought cholera to Haiti. An approach predicated on integrity requires this contradiction to be justified or reconciled.

But so what? Eric de Brabandere questions the value of adding this layer of jus post bellum to the range of rules and norms that already operate in a post conflict arena. Eric rightly identifies that each of these principles can be found in general public international law. This is especially so for proportionality, which finds widespread expression in international courts and tribunals.

The added value of an interpretive approach to jus post bellum depends on one’s approach to interpretation in general. Interpretation necessarily involves normative non-legal, interpretive values that an interpreter brings to the project. In the absence of any further interpretive principle, those who apply substantive principles of jus post bellum may accept the existing pattern of their application including inconsistencies or contradictions. Moreover, some theories relevant to post-conflict environments, such as Ruti Teitel on transitional justice argue that a trade-off of values is inevitable. Larry May’s work suggests that he prefers a view of value that permits the existence of incommensurable moral goods.

A distinct case therefore needs to be made that an approach predicated on the unity of value and the desirability of integrity in interpretation should be preferred. Three reasons present themselves. First, post-conflict processes are more legitimate if forming part of a coherent whole. The aftermath of conflict presents several social conditions, including an absence of the rule of law, civic trust or social recognition of human dignity, which are shared pre-conditions in areas relevant to jus post bellum such as peace-building, transitional justice, security sector reform. Such areas face enormous and challenging tasks because of these conditions and struggle to offer an ideal conception of justice in that context. In these non-ideal circumstances, Pablo de Greiff has argued measures that are weak in relation to the immensity of their task are more likely to be interpreted as justice initiatives if they help to ground a reasonable perception that their coordinated implementation is a multi-pronged effort to restore or establish anew the force of fundamental norms. Jus post bellum as integrity can recognise these mutually dependent conditions and constitutes a legitimate and coherent non-ideal conception of justice in the aftermath of war and conflict.

The second reason relates to the effectiveness of a conception of justice or peace after conflict. Eric de Brabandere has argued jus post bellum literature seeks to enhance the effectiveness of establishing of a just and enduring peace through international law. The existing approach remains ineffective, with Paul Collier noting more than 50% of armed conflicts reverting to violence within a 10 year period. However, persisting with the present approach to principles such as proportionality, trusteeship and accountability, will not without more address any patterns of their unprincipled inconsistent application to improve the empirical enhancement of a just peace. Prosecuting more war criminals after a conflict would not address the inconsistent application of a principle of accountability to peacekeepers or UN staff; nor does the greater use of proportionality in international courts and tribunals address its use to evaluate the moral and political choices made by a society emerging from conflict in non-judicial settings. To the extent that existing international law represents and inconsistent and incommensurable pattern of trade-offs, it disavows the inter-connected nature of the social norms and conditions which are the starting point for areas relevant to jus post bellum. Finally, interpretation is presently feasible. A further Geneva Convention for jus post bellum is a worthwhile long term goal, but at present a focus on clarifying interpretive practices of officials and civil society actors involved in a post-conflict space is a more pressing priority. An approach based on integrity is therefore a particular form of interpretation, that has normative and empirical dimensions.

Jus post bellum is presently the matter of academic discourse, but could constitute moral or policy guidance for international actors involved in the aftermath of conflict. The volume under discussion at this symposium constitutes an element of that guidance. In future, an interpretive approach may provide the basis of a genuinely inter-disciplinary practice of jus post bellum, which recognises that a more legitimate and effective account of justice after war may be given by embracing the interconnected and interdependent nature of the social conditions after conflict.

Jus Post Bellum Symposium: A Normative Critique of Jus Post Bellum in International Law

by Eric de Brabandere

[Eric De Brabandere is Associate Professor of International Law at the Grotius Centre for International Legal Studies and a Member of the Brussels Bar.]

My contribution to Jus Post Bellum: Mapping the Normative Foundations, edited by my colleagues Carsten Stahn, Jennifer Easterday and Jens Iverson critically examines the usefulness and accuracy of jus post bellum (JPB) as a legal concept and argues that the concept presents either a challenge to the objectivity of the post-conflict phase or simply brings together already existing obligations. It also questions the oft-heard underlying assertions and assumptions of JPB theories, namely that there is a legal void to which the concept would (need to) respond by filling the ‘blind spots’, and that post-conflict reconstruction does not function because of a lack of effective implementation of existing law applicable in such situations which requires recourse to a ‘new’ concept. Indeed, and although this is not always clear in JPB discussions, the concept has an important normative agenda – namely that the current regulation of post-conflict situations is inadequate and should as a consequence be modified. This –often latent and also vague in terms of which norms should be added- normative agenda of course is necessary for JPB scholars, since the absence of normative propositions restricts JPB to a pure umbrella concept which in turn makes the whole idea legally useless. I have expressed my criticism in this respect previously (in the Vand. J. Transnat’l L. and the Belgian Review of International Law). I will therefore focus in this post primarily on the recent idea of seeing JPB as an interpretative framework.

JPB as an interpretative framework is developed in detail by James Gallen in this contribution to the volume, but also is present in the chapters by Dieter Fleck and Christine Bell. The main idea behind this theory is to view JPB as a normative set of principles rather than substantive rules which would give guidance in the application of the existing rules governing post-conflict reconstruction. This understanding of JPB is considered to be important because of the need to interpret uniformly the various norms, rules and practices applicable in post-conflict reconstruction. Under such an understanding of JPB, the alleged ‘legal void’ somewhat becomes irrelevant, since the objective is not to add new rules, but rather to use existing principles and where possible interpret these rules in function of the identified overarching principles. It essentially functions to ‘solve’ the second main ‘problem’ of post-conflict reconstruction namely the lack of effective implementation of international law in such situations.

Even if one perceives JPB as an interpretative framework, grouping principles that are already of application in post-conflict situations –which undoubtedly is the case for the principles discussed- under a new notion, makes the question of the usefulness of jus post bellum persist. At the same time, this may be the only viable avenue for JPB. Roughly three principles are usually considered to part of this ‘interpretative legal framework’: the principle of proportionality, the accountability of foreign actors, and the principle that post-conflict reconstruction efforts should be for the benefit of the population (trusteeship, fiduciary type of authority, or stewardship). These principles are discussed in total or in part in the contributions of Gallen, Bell and Fleck in the JPB volume, but also elsewhere. Although these principles have been used in the context of the substantive content of JPB as well (when it is used a normative framework) the difference in their use here is the fact that the objective is not necessarily to ‘create’ new substantive rules applicable to post-conflict reconstruction -e.g. by ‘imposing’ trusteeship in all aspects of post-conflict situations-, but rather to use these principles to interpret the existing legal norms applicable in post-conflict reconstruction. They would then function as overarching principles which may guide foreign actors involved in post-conflict reconstruction to interpret their mandate, either under the laws of occupation or under Security Council resolutions, and the general obligations they have under, for example, human rights law, the laws of armed conflict and refugee law.

The main problem here again is that the identified principles (proportionality; trusteeship, and accountability) in fact are already very much present in general international law. This is without doubt the case for proportionality –a general principle of international law-, but also for the trusteeship principle -that post-conflict reconstruction efforts should be for the benefit of the population which is inherent in the laws of occupation, and in case of action taken by the Security Council-. The principle of ‘accountability’ also is already very much present in general international law and in the areas of law which are of specific relevance in post-conflict settings.

Secondly, these ‘principles’ vary substantially in nature and legal force. ‘Proportionality’ is a general principle of international law, applicable in various situations including in jus ad bellum, jus in bello and certain aspects of JPB. ‘Accountability’ on the other hand constitutes an ‘objective’ within a legal system. It has no or little legal force. ‘Trusteeship’ also is very different in nature in that it applies to situations of occupation, and implicitly to Security Council mandated missions, but the relevance of the concept outside these situations is almost inexistent. These principles, admittedly, indeed may serve to guide foreign actors involved in post-conflict reconstruction, for instance, in terms of setting up adequate mechanisms to challenge acts taken by these actors or in interpreting their mandate. The question very much is whether this is not already the case. Proportionality, fiduciary authority and accountability are either directly or indirectly already part of the applicable norms in post-conflict settings. The question thus remains whether, even in such a minimalist conception of JPB, it really is useful to group existing principles in the new concept. If, on the contrary the objective is more normative, e.g., to impose these existing principles on situations not already covered by these –which is not entirely clear and would in any event have a very limited effect-, the question remains how this would operate.

Jus Post Bellum Symposium: What’s in a Name? The Great Definitional Debate over Jus Post Bellum

by Kristen Boon

Carsten Stahn, Jennifer Easterday, and Jens Iverson’s new edited collection Jus Post Bellum: Mapping the Normative Foundations is a terrific contribution to the Jus Post Bellum field. The 26 chapters (one authored by myself) address a range of central issues, including interrogating the structure, content, and scope of the three separate pillars of jus / post / bellum. While the contributing authors reveal some fundamentally different and even opposing views on the essential building blocks of the enterprise, this discord is a sign of the area’s salience. The chapters in this volume indicate that the ongoing inquiry into the principles that should apply after war continues to be an issue area of great interest to practitioners, policy makers and scholars of various disciplines.

Interest in the topic is illustrated by the graph on p. 544 of the book, which indicates the “rock star” status of the concept. Before 2002, there were virtually no references to jus post bellum in the literature. Since 2007, however, references to jus post bellum have jumped off the chart, indicating a growing concentration of scholarship that tranches the disciplines of law, political science, international relations, theology and philosophy. As someone who writes in the field, I see the following as key pillars of jus post bellum investigation: (i) the recognition that building a sustainable peace is important to stopping cycles of conflict; (ii) the UN’s regular engagement in post-conflict reconstruction (raising practical questions about what types of post-conflict activities are important, and what laws should inform and limit IO activities), and (iii) exploring how the jus post bellum principles relate to, add and alter our existing legal framework, particularly with regards to humanitarian law and doctrines like the Responsibility to Protect.

At the meta-level, there are polarized views on the definition of jus post bellum, and more centrally, the utility and enforceability of a jus post bellum framework. Some scholars see that disagreement as a source of potentially useful debate (see in particular, chapters by Vatanparast, Easterday and Bell), while others focus on the conceptual unclarity that flows from these differences of views, emphasizing the limitations from a gender perspective (Hi Aolain an Haynes), the importance of clarifying the relationship with existing bodies of legal doctrines (Fox), and the potential for politicization (Vatanparast).

I note, with some irony, that some of my own work on the subject, all of which is less than 10 years old, appears to be classified as a product of the “old guard” (Introduction at 4), in that I have advocated a restrictive definition of jus post bellum and the norms that might apply in conflict situations. For example, in a 2005 article available here I define jus post bellum as the justice of post-war settlements and reconstruction, and I focus exclusively on non-consensual interventions. Others in the volume, in contrast, argue for interpretive and functional definitions, which are classified as newer approaches to the field. While these approaches certainly merit exploration, I continue to defend, and see greater value in a narrow but deep definition of jus post bellum. One reason is that to the extent that jus post bellum can and will serve a regulatory function, perhaps one day even evolving into a new Geneva Convention, there needs to be practical guidance, on concrete issues, drawn from identified cases. There is a necessary and critical reflective process that is required to getting to those regulations. My approach doesn’t suggest that philosophical inquiries should be short-circuited or curtailed, or that there isn’t value in the dialogue. However, in my view, there are considerable benefits in moving the conversation towards concrete proposals that could have a daily impact on actors in the field, such as the UN. I believe this is most effectively done when we consider jus post bellum as set of legal principles that apply in the transition from conflict to peace, as opposed to a site for exploration.

Another reason I believe a narrow approach is preferable is that there may be greater legitimacy in a narrow set of accepted principles than broad and prescriptive tools that miss the nuances of particular situations. Indeed, a relevant analogy here might be the ILC’s 2011 Draft Articles on the Responsibility of International Organizations (RIO), which, many have argued, would have been more relevant if they were less ambitious. I outline some of the controversies over the RIO articles here. For example, if the ILC had taken on a few issues in areas where there was developing practice and a perceived need for common regulation, it may have resulted a set of proposed Articles with more buy-in from IOs. As it stands, the decision to tackle the wide range of topics developed in the context of State Responsibility, and try to apply them to all IOs writ large, left many feeling that insufficient attention was given to the fundamental differences amongst IOs.

My chapter in this book, titled Jus Post Bellum in Non-International Armed Conflicts, addresses the applicability of jus post bellum to Non-International Armed Conflict Situations (NIACs). Because internal conflicts are regulated by fewer norms than international conflicts, NIACs, which are statistically the most frequent forms of conflict today, raises the following question: should the scope of Jus Post Bellum be different for NIACs? I argue for a “bounded discretion” approach, which would uphold the applicability of universal values that are derived from human rights, international criminal law and international humanitarian law, while instilling deference to local law-makers on issues of rebuilding, reconstruction, and constitutional design. I use the examples of margin of appreciation and the doctrine of subsidiarity to support this approach, to show how multi-level governance theories are relevant to jus post bellum. I argue that in applying jus post bellum, there should be a preference for governance at the most local level, unless the norms are non-negotiable, such as those derived from human rights. The editors of the book have recently applied this concept to justify a principled deviation from peacetime standards.

A final reflection on the scope of jus post bellum comes from a related body of work I am engaged in on UN sanctions. In assessing the Security Council’s peacebuilding activities through the guise of sanctions, I have been struck by the extent to which the Security Council is an important player in the jus post bellum field. Although the Council’s actions are discretionary, sometimes inconsistent, and are not applied in a regular way to like-cases, the Council has, nonetheless, been involved in some way, with almost every most major international conflicts in the last 20 years, save perhaps, Sri Lanka and Myanmar. Indeed, under the so-called sanctions for peace in Liberia and Cote d’Ivoire, the Council has brought about considerable transitions which fall within the jus post bellum framework, by, for example, mandating free and fair elections, an end to the incitement of violence and intolerance, management of natural resources, changes to the government’s administrative infrastructure, and cooperation with international courts and tribunals. I thus agree with Dieter Fleck’s observation on p. 62 that Security Council resolutions alone are not sufficient to create a jus post bellum framework, but there is no question that they provide distinctive areas to evaluate and should not be overlooked. Moreover, the Council’s references to peace agreements in sanctions resolutions, and its role in authoring and enforcing international norms, signifies its significant engagement in and influence over peace building and the jus post bellum. Stay tuned for a future post on this issue, which draws from an article I am writing on the topic.

I have little doubt this book will soon become essential reading for those interested in jus post bellum: it contains an incisive set of analyses on a range of important topics, and makes great inroads in continuing to map the field of jus post bellum. I am grateful both for the opportunity to have contributed to the volume, and for the chance to wear my other hat as an Opinio Juris blogger, to reflect on one of the central issues I saw emerging from the volume: the definition of jus post bellum.

Book Symposium: Jus Post Bellum–Mapping the Normative Foundations

by Jens Iverson

[Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies, Universiteit Leiden. Jennifer S. Easterday is a Researcher for the ‘Jus Post Bellum’ project at the Universiteit Leiden and an international justice consultant. Jens Iverson is a Researcher for the ‘Jus Post Bellum’ project and an attorney specializing in public international law, Universiteit Leiden.]

As editors of Jus Post Bellum: Mapping the Normative Foundations, we are delighted and honored to be able to present the ongoing jus post bellum debate in this Opinio Juris symposium. The book was written as part of a four-year research project on jus post bellum. The concept is steadily gaining ground in emerging scholarship, and we hope the fantastic contributions to this symposium will push that scholarship even further. We are grateful to the contributors to the symposium, to those who post responses, and to the readers.

The basic idea of jus post bellum emerged in classical writings (e.g., Alberico GentiliFrancisco SuarezImmanuel Kant) and has its most traditional and systemic rooting in just war theory. In this context, it is part of a structural framework to evaluate the morality of warfare, and in particular the ‘right way to end a war’, including ‘post-war-justice’ (Michael WalzerBrian Orend). Outside just war theory, jus post bellum is largely unexplored. The notion was used sporadically in different contexts over the past decade: peacebuilding and post-conflict reconstruction, transformative occupation,transitional justice, and the law of peace (lex pacificatoria) more generally. But the concept has lacked consistency; there are almost as many conceptions of jus post bellum as scholars, within and across disciplines.

In order to study the concept, we broke it down into its constituent parts: juspost, and bellum. Authors in the book—many of whom have contributed to this symposium—grappled with questions as diverse as the normative and moral meanings of justice, the intricacies of time and transition; and the very conception of armed conflict. Our main conclusion from the book is that it is helpful to think about jus post bellum in three different ways.

First, Jus post bellum may be said to form a body of norms and principles applicable to transitions from conflict to peace. It provides, in particular, substantive norms and guidance for the organization of post-conflict peace. But more law and abstract regulation do not necessarily suffice to address tensions arising in the aftermath of conflict. There may a greater need for a better application of the existing law, and its adjustment to context, rather than the articulation of new norms and standards. There may be promise in strengthening informal mechanisms and flexible principles.

A second and more ‘modest’ conception of jus post bellum is its qualification as a ‘framework.’ This conception emphasizes the functionality of jus post bellum, such as its capacity to serve an instrument to evaluate action (e.g., legitimate ending of conflict) and to establish a public context for debate. Jus post bellum might be construed as an ‘ordering framework,’ or as a tool to coordinate the application of laws, solve conflicts of norms, and balance conflicting interests.

Thirdly, jus post bellum may constitute an interpretative device. The concept might inform a context-specific interpretation of certain normative concepts, such as ‘military necessity’ or the principle of proportionality. It might, for instance introduce a novel end in relation to the conduct of hostilities, namely the objective not to defeat the goal of sustainable peace through the conduct of warfare.

Like many legal concepts, jus post bellum is not without contestation. But this is not necessarily a weakness. We conclude the book with a SWOT analysis: Strengths, Weaknesses, Opportunities, and Threats. We argue that some of merit of the concept lies in dialogue and contest with other concepts, such as Transitional Justice, the law of peace or the Responsibility to Protect.

We have tried to capture the essence of that dialogue in this symposium. We are delighted to have several authors from the book, as well as additional distinguished guests, join us in the on-going debate about the contours and merit of jus post bellum. Over the course of the next several days, they will engage with issues including: on Monday, useful definitions for jus post bellum; on Tuesday, its relationship to other related concepts; on Wednesday, peace agreements, constitutions, and environmental concerns; on Thursday, sovereignty and multilateralism; and on Friday, post-conflict responsibility. We hope that your find their contributions, and the discussion, as fascinating and thought provoking as we have.

Colombia’s Constitutional Court Says ICJ Rulings Are Not Self-Executing; Medellin v. Texas in Bogota?

by Julian Ku

In 2008, the U.S. Supreme Court held in Medellin v. Texas that rulings of the International Court of Justice are not “self-executing” under U.S. law.  For this reason, the Supreme Court refused to require Texas to stop executions that the ICJ had held in violation of U.S. treaty obligations.  It looks like Colombia’s Constitutional Court has followed that same approach with respect to Colombia’s Constitution:

Colombia’s constitutional court ruled on Friday that applying a decision by the International Court of Justice (ICJ) that granted Nicaragua a disputed area of Caribbean waters could not take effect without a treaty between the countries.

The court’s verdict upholds the position taken by Colombian President Juan Manuel Santos, who said the Hague-based ICJ’s decision was not applicable according to Colombia’s constitution without such a treaty, ratified by the Andean nation’s congress.

Colombia’s government has been pretty consistent in its public statements. It does not dispute the legal obligation represented by the ICJ’s ruling, but it does not believe the ruling can override domestic Colombian constitutional law either.  This court decision appears to endorse this dualist approach.   Of course, I have not read the ruling (anyone have a link?) and even if I had the ruling, I can’t read Spanish (anyone have a link and a translation?).  So I might be overstating things here. But it is worth looking into.

Events and Announcements: May 4, 2014

by An Hertogen

Events

  • The Inter-American Affairs Committee of the International Law Section, the International Dispute Resolution Committee of the International Law Section and the Inter-American Bar Association are sponsoring a DC Bar Lunchtime Conference on “Property Rights Protection in the Americas: the Non-Arbitration Options“, this Tuesday May 6, from 12-2pm at WilmerHale in Washington DC. More information and registration is here.

Call for Papers

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 26-May 2, 2014

by An Hertogen

This week on Opinio Juris, Duncan posted an abstract to a book chapter arguing that IHL should adopt a duty to hack. He also argued that reports of the death of treaties are greatly exaggerated.

Peter marked May Day with a post on global consciousness of the non-elites; Kevin argued that the PTC II is not treating defence attorneys fairly; Julian wrote about Florida’s narrow ban on foreign law; and Ryan Scoville contributed a guest post on de jure and de facto recognition as a framework for Zivotofsky.

Finally, Jessica wrapped up the news and listed events and announcements. Kristen also publicized the call for this year’s ASIL Mid-Year Research Forum.

Have a nice weekend!

Florida Narrows Foreign Law Ban to Foreign Family Law

by Julian Ku

Florida’s legislature has just passed a bill that is an interesting variation on the wave of other foreign law bans that have been enacted in U.S. states.  Florida’s new law would ban the use of foreign law in Florida state courts if that law “contravenes the strong public policy” of Florida or if the “law is unjust or unreasonable.”  It also limits the use of foreign law in choice of law provisions in contracts or forum selection clauses under the same “strong public policy” standard.

In fact, Florida’s law is much narrower than it appears.  Apparently drafted with the help of the International Law Section of Florida’s Bar, the law only applies to matters “arising out of or relating to Chapters 61 and 88” of Florida’s statutory laws. And these turn out to be related to marriage, divorce, child custody, and child support.  So we are really down to prenuptial agreements and child custody agreements, for the most part.

Critics of these bills have called them pointless and possibly xenophobic as well. I am more on the “pointless” end of the spectrum, since I agree these laws do very little, although this bill is at least narrowly targeted at what the supporters of the bill are actually worried about: US courts enforcing agreements or requirements in family law matters based on foreign legal principles, especially Islamic law.  This same issue is actually causing a minor uproar in the UK.  Maybe they need a Florida bill there too?

In any event, I think this bill is pretty harmless, and it is actually narrowly targeted at what the supporters are worried about: “sharia law” in US courts.  It is certainly better than the previous version, which would have swept far more broadly. And I don’t think there should be any constitutional problems with this provision.

Piketty/Davos/MayDay

by Peter Spiro

Before the Piketty bubble reaches stage six (at this rate, sometime later today), a few thoughts on the geosocial implications of his theory of inequality. That theory has been getting the lion’s share of the lion-sized attention showered on Capital in the 21st Century (Kindle edition available only). Those of you reading the reviews (if not the book itself) will know that r > g, the rate of return on capital increases more than the rate of economic growth, which means that the rich will get richer relative to the rest of us.

Historically the book points us to the Belle Epoque. What did it take to to dislodge that last era of concentrated wealth? A couple of world wars. War gave rise to social policies and economic growth that tamped down the level of retained “r” and fueled an anomalously high “g”. That evened things out quite a bit by mid-century, about which everyone has gotten so nostalgic.

But the social policies — and indeed the wars themselves — could only be built on high levels of national solidarity. Globalization at the turn of the last century turned out to be a false dawn. Economic interdependence wasn’t enough to prevent a bloodbath among the major economic powers. That was mostly downside, of course. The upside: the consolidation of community based on the nation-state, which in turn enabled thick redistribution.

This time around, globalization is for real. We’re not going to have a World War III to help reslice the economic pie. Transborder economic interdependence is exponentially higher. In social terms, that has consolidated a different kind of community: the transnational elites. They share more of an interest in protecting their collective wealth than in sharing it with their co-nationals. Davos doesn’t quite fit the argument, insofar as (at least nominally) it selects participants on the basis of social utility rather than wealth. But I’m willing to bet that Davos and/or its spin-offs and successors become playgrounds for the generations that inherit Gilded-Age wealth (“patrimonial capitalists,” in Piketty’s vocabulary). The Davos class is a new global community, with its own set of practices, beliefs, ideology, interests.

Since war is not a very plausible or appealing prescription, Piketty is left to press a global wealth tax. That makes sense in the face of higher transborder capital mobility. But it’s never going to happen so long as the Davos class is essentially unopposed. The current landscape looks neo-feudal, the elites moving in their global circles while the not-rich remain confined to their national spaces. (Immigration controls play a part in this, in contrast to free trade in goods.) I don’t have a sense of any real global class consciousness among non-elites. Jennifer Gordon presses conceptually interesting possibility of transnational labor citizenship, but that doesn’t seem to have taken hold on the ground. The Occupy movement hasn’t achieved enough of a critical mass to comprise a counterbalance.

Today is May Day. Can the workers of the world unite?