Archive for
October, 2014

Three Reasons Why Jerusalem Passport Statute Survives Zivotofsky

by Peter Spiro

Everyone is ramping up for Monday’s Supreme Court argument in Zivotofsky v. Kerry, with notable entries from Jack Goldsmith on Lawfare, Marty Lederman on Just Security, and Eugene Kontorovich on Volokh. They have been debating a narrow doctrinal basis (suggested by the SG and pressed by Jack) for striking down the law as a kind of passport regulation beyond Congress’ power under Article I.

A little more on that below, but in the meantime, here are three atmospheric factors that point to sustaining the statute, none of which will be mentioned in the decision.

1. Passports would say “Israel,” not “Jerusalem, Israel”. Along the way, Zivotofsky modified his demand from the latter to the former. If he wins, his passport will list his place of birth simply as “Israel”. This makes a huge difference in the optics, literally. There are already an estimated 100,000 US passports that list “Israel” as place of birth; upholding the passport measure will only increase the number. None will say “Jerusalem, Israel.”

The visual out on the web of the passport with the Stars and Stripes and other official US Government ornamentation as background on the personal information page would have easily been mistranslated as US Government recognition of Israeli sovereignty. Without the graphic, there’s too much explaining to do — you have to connect the document with a person (and that person’s birth information) to cause the offense. The attenuation should mitigate the risk of damage on the ground.

2. The government lacks the amicus support one has come to expect in a case like this. Where is the brief from former U.S. diplomats? In Medellin, Madeleine Albright et al. argued that the failure to find the VCCR self-executing would do serious damage to US foreign relations. There’s no equivalent in Zivotofsky, in circumstances in which the risk of damage would seem an order of magnitude higher (in the end, US-Mexico relations survived Medellin’s execution, and there have been no reported cases of other countries violating US citizen rights under the VCCR). The silence from other quarters might make the justices feel a little more confident that upholding the statute is not going to spark riots in the Arab world.

The government garnered only three amici in support. Perhaps everyone is scared away from taking a stance that looks anti-Israel. The American-Arab Anti-Discrimination League makes a non-delegation argument (as in, the statute unconstitutionally delegates decisionmaking to private individuals, namely, those who choose “Israel” over “Jerusalem”). The “True Torah Jews” argue that Zivotofsky lacks standing. And one David Boyle makes a grab-bag of arguments, including a Logan Act claim. Can anyone with a bar admission file green briefs these days? On the petitioner’s side, check out Louis Fisher’s anti-Curtiss-Wright diatribe (okay, did the Government have to cite Curtiss-Wright more than a dozen times in its brief?).

3. Why would the Court have taken the case, except to reverse? If the Court were inclined to strike the statute down, letting the D.C. Circuit’s creditable ruling stand would have accomplished that objective in a low-profile, low-cost way.

The doctrinal math for sustaining the statute is straightforward. The Secretary’s action is readily framed as Youngstown category 3 (much more so than the presidential memo in Medellin). From there, it’s a simple matter of finding Congress to have authority over the issuance of passports.

Assuming it doesn’t ignite the Arab Street, the decision won’t be of immediate consequence. Recognition decisions are much less important than they once were, and the probability of serious splits between Congress and the White House slighter still (hence the relative paucity of recent historical precedent for the issue). Ditto for passport authority parameters. This just isn’t something that gets fought over very often. Because the result looks unthreatening in these ways, I don’t see the Court going through Article I gymnastics to carve out this particular aspect of passport issuance from what is otherwise clearly within congressional authority (that is, some general authority over the issuance of passports under the foreign commerce and naturalization clauses). The Article I argument sounds more like a hairsplitty Breyer dissent than a broadly reasoned Roberts majority.

Upholding the statute would fit nicely into the Court’s project of normalizing foreign relations law. Zivotofsky I was a key step in that agenda, playing the Marbury card against the conventionally deployed political question doctrine in this kind of foreign relations dispute. Medellin was another. Upholding the statute would be normalizing. Exclusive presidential powers are exceptional; they seem less amenable to judicial supervision, especially when they are located in an amorphous and historically uncabined foreign relations power.

Update: Eugene Kontorovich notes here that there aren’t any amicus briefs from foreign governments, either. One wouldn’t think that unusual, but (as Eugene points out) such foreign government amicus participation has become pretty routine. (One other case in which foreign governments went missing: last year’s treaty power case, Bond v. United States.) Eugene is right to remind us that we shouldn’t read too much into amicus non-participation. But the silence might make the Court more confident in rebuffing the Government and its argument that enforcing the statute will upsets the apple cart of Middle East peace.

Huge Win in the Zimbabwe Torture Docket Case

by Kevin Jon Heller

Earlier this year, Chris Gevers blogged about the Zimbabwe Torture Docket case, in which the Constitutional Court of South Africa was asked to determine whether the South African Police Service (SAPS) is required to investigate allegations that high-ranking government and security officials in Zimbabwe committed acts of torture. Those acts took place solely in Zimbabwe and involved only Zimbabweans, so the key issues in the case were (1) whether South Africa’s adoption of universal jurisdiction over torture obligated SAPS to investigate the torture, and (2) if so, what conditions, if any, qualified that obligation.

As Chris noted in his post, I and three other international criminal law scholars (Gerhard Kemp, John Dugard, and Hannah Woolaver, with Hannah doing most of the heavy lifting) filed an amicus brief with the Court addressing the question of whether anything in international law prohibits a state from opening a universal-jurisdiction investigation in absentia — without the presence of the suspect. That was a critical sub-issue in the case, because although the Zimbabwean suspects travel regularly to South Africa, they would not necessarily be present at the beginning of a SAPS investigation.

The Court released its decision today — and it’s a complete win for the amici and (far more importantly) for the excellent Southern Africa Litigation Centre (SALC), which brought the case. First, with regard to the in absentia issue, the Court agreed with amici that international law did not prohibit universal-jurisdiction investigations in absentia (p. 27). I won’t rehash the Court’s analysis, but I do want to quote the Court’s excellent explanation of why states should be allowed to conduct such investigations (p. 28):

[48] This approach is to be followed for several valid reasons. Requiring presence for an investigation would render nugatory the object of combating crimes against humanity. If a suspect were to enter and remain briefly in the territory of a state party, without a certain level of prior investigation, it would not be practicable to initiate  charges and prosecution. An anticipatory investigation does not violate fair trial rights of the suspect or accused person. A determination of presence or anticipated presence requires an investigation in the first instance. Ascertaining a current or anticipated location of a suspect could not occur otherwise. Furthermore, any possible next step that could arise as a result of an investigation, such as a prosecution or an extradition request, requires an assessment of information which can only be attained through an investigation. By way of example, it is only once a docket has been completed and handed to a prosecutor that there can be an assessment as to whether or not to prosecute.

The Court then proceeded to hold that SAPS not only had the right to open a universal-jurisdiction investigation into torture in Zimbabwe, it had an obligation to do so — a remarkable position for the Court to take…

Paul Barrett’s Law of the Jungle (Excellent Account of Chevron Ecuador)

by Peter Spiro

Paul Barrett gave a talk earlier this week at Temple on his Law of the Jungle. It’s a terrific journalistic account of the epic 20-year battle over Chevron’s pollution of Ecuador’s rain forest.

For anyone with a vague awareness of the case the book supplies a highly readable cheat-sheet. I suspect like many with incidental interests in international law, I had some idea that Chevron (Texaco) did some awful things in Ecuador but also that there was something not-quite-right about the plaintiffs’ side of the equation. Barrett’s account fills out the picture on both sides.

The book is a model biography of a case with epic turns. It’s also in many respects the biography of Steven Donziger, the activist lawyer who made this case different from other suits against US multinationals for misdeeds abroad. Barrett paints a pretty persuasive picture of how Donziger’s hubris ultimately did him in. For starters, Donziger had himself shadowed by a documentary filmmaker, the raw footage of which ended up discoverable along with the rest of his paper trail. Material that would ordinarily have remained protected by attorney-client privilege ends up supplying the backbone to Barrett’s narrative.

That gives the book something of an unbalanced feel — the equivalent from Chevron’s side isn’t part of the record ($400 million in fees to Gibson Dunn!), so Chevron’s litigating maneuvers get much less air time here. Conservatives and the business community will be happy with the result (see this favorable review in the Wall Street Journal, for instance). But although Chevron got itself in trouble in various respects along the way (starting with the oil drilling itself, but also including the strategically disastrous push to have the proceedings transferred to an Ecuadorian court which ultimately delivered an $18 billion judgment in the case), its lawyering was clearly of a more conventional description. There are interesting cameos of Ecuadorian politicians and judges, litigation venture capitalists, and other US lawyers who misguidedly jumped on board even after the veneer of celebrities and good press had started to crack. But it’s Donziger that makes this the exceptional case.

And exceptional for the telling. For any cause lawyer, this is a cautionary tale. Sure, one has to play public interest cases from various angles, in and outside the courtroom (including of course the media, with which Donziger proved masterful until things started falling apart). But there are limits, and Donziger clearly exceeded them on various fronts. Though he may yet survive the RICO judgment entered against him in the SDNY (on appeal, on fairly technical grounds unrelated to the underlying facts), he’ll come out of this with a severely tarnished reputation among progressives as well as more natural adversaries.

I’m not sure that the lessons are generalizable much beyond that. The book closes with thoughts on how US class-action lawyers have overreached in other contexts. I don’t know that Chevron Ecuador necessarily points in that direction. US-style litigation could still take hold on a global basis even as it gets a haircut at home. This case shows that transnational disputes have yet to be adequately institutionalized, with much greater potential to get out of hand in various directions. No one really wins on that terrain.

Expanding the UN Ombudsperson’s Mandate & Better Cooperation Between the ICC and Sanctions Regimes

by Kristen Boon

The UN Ombudsperson’s office currently has jurisdiction over the 1267 sanctions regime, but the discrepancy between the due process afforded to individuals affected by that regime as opposed to other regimes has long been noted: individuals listed under the various sanctions regimes applicable to situations in Africa, and the Weapons of Mass Destruction regimes applicable the situations in Iran and North Korea, only have access to a UN focal point to request delisting. The UN focal point, however, has fewer powers and does not operate under the same due process guidelines as the Ombudsperson.

This issue was debated last week in the Security Council during an open meeting on Security Council methods. According to the UN Press who reported on the day long meeting, Kimberly Prost, the UN Ombudsperson, noted that in her experience a fair process was essential to the implementation of sanctions, and it connected with a possible reduction in legal challenges to the application of sanctions at regional and domestic levels.  For analysis of the reasons the UN Ombudsperson herself and certain Member States support extending the Ombudsperson’s mandate, see Maya Lester’s blog here. General background on the Working Methods debate is available here.

At the same session, states also discussed overlap between sanctions regimes and the ICC, and ways to improve cooperation. For background on the main issues, see my blog here.

There is little question that an expansion of the Ombudsperson’s mandate at least to more sanctions regimes, and better cooperation between criminal tribunals and the UN Sanctions regimes will improve the effectiveness of UN sanctions. Moreover, they complement the UN High Level Review of Sanctions which is coming to an end, in which a parallel effort to assess and improve sanctions regimes has taken place.

 

What Does China Mean When It Celebrates the “International Rule of Law”?

by Julian Ku

In observance of United Nations Day on October 24, China’s foreign minister Wang Yi issued a long statement expressing China’s view of itself as a “staunch defender and builder of international law” (Chinese version here). As China-watchers know, China’s Communist Party has just completed its “Fourth Plenum” (sort of a Party leadership strategy meeting) on the theme of the promotion of the rule of law, so it is not surprising that China’s leadership would have something to say about the international rule of law as well.

The statement is pretty predictable (and largely unobjectionable) in its broad pledge for Chinese support to “international law” or the “international rule of law.”  It is hardly pathbreaking.  Still, as I have suggested in earlier posts, China’s government tends to have a slightly different view on what constitutes “international law” as compared to the United States or Europe.  So while much of the statement is pretty anodyne (it is communist-party-speak, after all), there are a few points relating to China’s emphasis on sovereignty and its allergy to human rights that are worth noting:

1) International Law and China’s History of National Humiliation

The statement places China’s commitment to international law in the context of its historical struggles facing foreign oppression in invasion beginning with the Opium War of the 1840s.  This reference to China’s historical weakness in the nineteenth and twentieth centuries is standard nationalist fare in China, but it is interesting that it is linked here to modern international law. As the statement notes, “[s]eeing the contrast between China’s past and present, the Chinese people fully recognize how valuable sovereignty, independence and peace are.”  I think this historical experience is a useful explanation for why there are deep roots to the version of international law presented here.  For China, international law is closely linked to its achievement of independence from foreign powers, and there is no principle more dear to China in international law than “sovereignty” and independence from foreign domination.  Those of us educated in the States have been taught that sovereignty is usually an obstacle to the promotion of international law (Louis Henkin even called it the “S” word), but that concept is still hard to sell in China.

2) Sovereignty 5:  Human Rights 0

Indeed, the statement mentions “sovereignty” five times as a fundamental principle of international law, as referenced in the United Nations Charter. Thus, the statement cites certain universally recognized norms of international law and relations such as

…[A]s respect for sovereignty and territorial integrity, peaceful settlement of international disputes and non-interference in the internal affairs of others, as enshrined in the UN Charter, are the foundation stones upon which modern international law and conduct of international relations are built.

This is right out of Article II of the UN Charter.  But it is hard to imagine a statement by the United States about international law that did not also mention the UN Charter’s commitment to the protection of human rights.  To be sure, human rights protection is not in Article II of the UN Charter’s list of “Principles” but it is odd (at least to an American) to see it ignored so completely here.

3) Just Say No to Responsibility to Protect 

The statement takes direct aim at those countries who are interventionist.

Hegemonism, power politics and all forms of “new interventionism” pose a direct challenge to basic principles of international law including respect for sovereignty and territorial integrity and non-interference in other countries’ internal affairs. Some countries follow a pragmatist or a double-standard approach to international law, using whatever that suits their interests and abandoning whatever that does not.

Hmm.. I wonder which country or countries it is referring to here?  This position also reflects longstanding Chinese policy against any kind of military intervention (and most other kinds as well) no matter what the justification.  So don’t count on a Chinese vote for that Syria intervention.

4) Go Democracy (between, but not within, nations)!

The statement also endorses democracy…that is to say, democracy in international lawmaking.  It accuses some countries (the One-Who-Must-Not-Be-Named) of trying to make “rules of certain countries as “international rules”, and their standards “international standards”. I am guessing this is clearly a shot at the U.S. in areas as varied as trade laws, IP, and human rights.

5) Philippines and UNCLOS arbitral tribunal: Don’t You Dare Ruin International Law

Not surprisingly, the statement takes aim at international and national courts.   It declares:

“National and international judicial institutions should avoid overstepping their authority in interpreting and applying international law. Still less should they encroach on the rights and interests of other countries under the pretext of”the rule of law” in total disregard of objectivity and fairness.”

I think this is clearly a warning signal to the UNCLOS arbitral tribunal formed to resolve the Philippines claim against China.  This is another sign there will be no backing down on this arbitration. China is going to continue to loudly proclaim its commitment to rule of law, and continue to reject and maybe even denigrate the legitimacy of this arbitration.

6) International Rule OF Law, not Rule BY Law

Finally, I’ll note that the statement’s use of the phrase “international rule of law” might help clarify a debate among China-watchers as to what China means by the phrase “rule of law.”  As Josh Chin has usefully explained in the Wall Street Journal here, the Chinese phrase “法治“ (fazhi) is often translated as “rule of law” but could also be translated as “rule by law”.  Indeed, there is a traditional Chinese “Legalist” tradition that thinks of law as an instrument for ruling society, but less so as a constraint on lawmakers and government.  Most China-watchers would probably say that “rule by law” is a more accurate translation of what the Chinese Communist Party means when they call for the promotion of the “法治” (fazhi) in domestic reforms, since most expect the Party to remain effectively above the law for most key matters in the future, but for law to be used as a mechanism of social and political control of everyone else.

No matter what the Party means domestically by 法治 (fazhi), it is clear that its use internationally fits within the Western conception of law as an autonomous force constraining state power and preserving state equality.

In promoting international rule of law, the most important thing is to use universally applicable rules in international relations to distinguish right and wrong, end disputes and seek a win-win solution through coordination. This is vital to international rule of law. The formulation, interpretation and application of international law should all be conducive to this goal. Under no circumstances should we inflate the arrogance of hegemonism and power politics, still less use international rule of law to instigate disagreement and friction,for it will only lead us to a wrong direction.

Indeed, in its call for universally applicable principles, democratic lawmaking, and the use of law to restrain strong states from taking advantage of the weak, the Chinese Communist Party is invoking a version of rule of law that many Westerners would be familiar with.  It will be interesting to see if this conception bleeds over into the Party’s push for domestic rule of/by law reform.

 

The ICC, Continuing Crimes, and Lago Agrio

by Kevin Jon Heller

Lawyers for the Lago Agrio plaintiffs have filed a communication with the ICC asking the OTP to investigate Chevron officials for alleged crimes against humanity in connection with the company’s “rainforest Chernobyl” in Ecuador. Ecuador ratified the Rome Statute in 2002.

Regular readers know my sympathies — both ethical and legal — lie squarely with the Lago Agrio plaintiffs. The only thing more unconscionable than Chevron’s destruction of the rainforest in Ecuador is its willingness to lie and manufacture evidence in order to avoid paying for its destruction. In a world with better criminal laws, I have no doubt that the CEO of Chevron and everyone else involved in the company’s misdeeds would be serving long prison sentences somewhere.

But we do not live in a world with better laws, and unfortunately the Lago Agrio plaintiffs’ communication faces a steep uphill battle. To begin with, the communication is not quite sure what Chevron has done that qualifies as a crime against humanity. It oscillates — very confusingly — between failing to pay the damages award in Ecuador (p. 19), attempting to cover up the extent of the pollution in Ecuador (p. 23), engaging in unsavoury litigation practices (p. 25), maintaining the polluted conditions (p. 36), and causing the pollution in the first place (p. 36). Those are, of course, very different arguments.

One thing is clear: the ICC could not prosecute Chevron’s deliberate dumping of more than 18 billion gallons of toxic waste-water into the Lago Agrio region, because that dumping occurred long before 1 July 2002, when the Rome Statue entered into force. That’s too bad, because I think a strong case can be made that intentional pollution of an area occupied by civilians could, in the right circumstances, qualify as a number of crimes against humanity — from forcible transfer to persecution to “other inhumane acts.” As the plaintiffs rightly note (p. 27), an “attack on a civilian population” does not have to involve physical violence.

That said, the communication seems to suggest that the plaintiffs view the contamination as some kind of continuing crime. It claims (p. 40), for example, that the potential crimes against humanity involved in the dumping “continue even today.” The idea seems to be that those crimes will continue until Chevron remediates the pollution — similar to the idea, promoted by various scholars, that Israel’s illegal transfer of its civilians into the West Bank will qualify as a crime against humanity until such time as the settlements are disbanded or that enforced disappearances continue until the responsible government identifies the fate of the victims. It is an open question whether the ICC will even recognise continuing crimes, as the ICTR has. I’m skeptical, given the drafters of the Rome Statute’s quite deliberate decision not to give the ICC retroactive jurisdiction. Few Latin American governments would have ratified the Rome Statute if they knew that their actions during the Dirty War would be open to judicial scrutiny.

But let’s assume the ICC will recognise continuing crimes. Would that mean the Lago Agrio plaintiffs have a case? It’s an interesting question. As noted above, it’s possible that Chevron’s deliberate pollution of the Lago Agrio region qualified as the crime against humanity of forcible transfer; “forcible” doesn’t require physical force and the defendant(s) do not have to intend to drive people fro where they are lawfully entitled to be. (They simply have to be virtually certain that will be the result.) So there is at least an argument that Chevron is responsible for forcible transfer until it cleans up the region to the point where displaced residents can return to their homes. But I can’t see the ICC accepting that argument, if only because of the potential implications — there are probably dozens of situations in member-states in which pollution predictably drove people from their homes and continues to prevent their return. That’s the problem with “continuing crimes”: they simply throw open the courthouse door in a manner the drafters of the Rome Statute were unlikely to have intended.

But that is not the only problem with the communication. Even if the ICC recognised continuing crimes, it is not clear how the current crop of Chevron officials could be held responsible for the (continuing) forcible transfer of people from Lago Agrio. Aiding and abetting would seem to be the most likely mode of participation, given that those officials presumably had nothing to do with the dumping of the waste (which was done by Texaco, which Chevron later acquired). Not paying the judgment and litigation misconduct, though reprehensible, would hardly qualify as aiding and abetting the forcible transfer. (I suppose one could argue paying the plaintiffs would make it easier for them to return home, but I can’t see the ICC convicting someone on such an attenuated basis.) The only real argument would be that Chevron’s current officials are aiding and abetting the continuing forcible transfer by failing to remediate the environmental damage in Lago Agrio. That is not a nonsensical idea, but it seems unlikely to succeed. Art. 25(3)(c) aiding and abetting would almost certainly be off the table, because it would require the Chevron officials to subjectively intend for people in Lago Agrio not to be able to return to their homes. No matter what you think of Chevron — and I obviously think precious little — that would be nearly impossible to prove. More likely is Art. 25(3)(d)’s version of aiding and abetting, contributing to a group crime, which would “only” require the OTP to prove that Chevron officials contributed to the forcible transfer by impeding remediation despite knowing that Chevron intended for the displacement to continue. Again, no matter what you think of Chevron’s remediation efforts (much of which was fraudulent), that’s a stretch. Not impossible, to be sure. But a stretch.

In short, unless the ICC is willing to recognise continuing crimes and adopt a very capacious understanding of aiding and abetting, it is difficult to see the OTP opening an investigation into the Lago Agrio situation. All of the other crimes against humanity identified by the Lago Agrio plaintiffs — murder, persecution, other inhumane acts — clearly took place, if they took place at all, long before 1 July 2002. And the current Chevron officials can hardly be held accountable for them.

Privileges and Immunities Hearing in The Haiti Cholera Case against the UN

by Kristen Boon

An interesting and significant hearing on the UN’s Privileges and Immunities in the Haiti Cholera case took place on Thursday morning, October 23, in the Southern District of New York.   For plaintiffs, the hearing was a milestone because it represented the first time that they have had the opportunity to argue any aspect of their case regarding the cholera epidemic in Haiti in a tribunal.   Hearings on privileges and immunities are rarely granted by domestic courts (judges generally make the determinations on the basis of written submissions of the parties), and so Judge Oetken’s invitation was an unusual and important development.  Plaintiffs were represented by the Institute for Justice and Democracy in Haiti, and the District Attorney responded for the United States, as host state to the UN.   Three amici spoke on behalf of plaintiffs.

In front of a packed court room, lawyers for the plaintiffs in Georges et al v. UN made the case that the UN has breached the Convention on Privileges and Immunities of the UN by not providing an “appropriate mode of settlement” for private law matters as required by Article 29 of the Convention on Privileges and Immunities of the UN (CPIUN).   This argument is developed in the plaintiff’s August 28 sur reply (available here), in which they state that the broad immunities granted to the UN in Article 2 of the convention need to be read in light of the UN’s obligation to make appropriate modes of settlement in Article 29. According to the plaintiffs, the UN’s failure to adhere to Article 29, which in this case would involve the establishment of a mechanism like the Standing Claims Commission envisioned in the model status of forces agreement (SOFA), should result in a lifting of the UN’s immunities.

In response, the US government, who has asserted absolute immunity on the part of the UN, relied on its letter in support of its statement of interest dated July 7 (available here), making the case that the UN’s immunities are absolute under Article 2 of the CPIUN, and that the only exception to Article 2 is an express waiver of immunity, which the UN has not given in this case.  According to the US government, Article 29 cannot be read as a condition precedent to Article 2.

Judge Oetken displayed a high level of knowledge of the applicable international legal framework and precedent in US courts and abroad on the scope of the UN’s immunities.   He appeared to be using the oral argument as an opportunity to test ways to frame the question, and to challenge each of the parties with regards to the scope of applicable precedents.  He both orally acknowledged that he is bound by 2nd circuit precedent, and cases like Brzak, in which the UN’s immunity was found to be absolute, and expressed interest in whether courts elsewhere have faced a similar question or come to a different conclusion with regards to the scope of the UN’s immunities. He was interested in Plaintiffs argument that there is a fundamental bargain between member states behind the CPIUN, which, if breached by the UN’s decision not to provide an appropriate mode of settlement, might be a basis to lift the immunity protections under the CPIUN.  Using terminology from contract law, he asked the US government if the UN were not in material breach of the treaty in this instance, for failure to provide a mechanism to resolve the claim. He also engaged in a close reading of the text of the CPIUN – noting that Article 29 says that the UN shall provide appropriate modes of settlement, not may or might. Moreover, he challenged both parties about venue, asking whether, pursuant to Article 30 of the CPIUN, the ICJ wasn’t the better forum to resolve questions of interpretation, such as the relation between Articles 2 and 29, and why Haiti or the US couldn’t refer such a question to the ICJ.

From my perspective two issues that were not addressed by the parties in oral argument that seem important to the resolution of the case involve the distinction between public and private law disputes, and the status of private parties within the CPIUN.  To recall, the plaintiffs take the position that the claims in this matter are private (sounding in tort, involving a request for compensation for death or injury), whereas the UN’s response to their initial complaint stated that the claim was not receivable because it would involve a review of political and policy matters.  The UN did not provide reasons for this characterization. Given the centrality of the distinction between public and private law definitions under Article 29 with respect to the obligation to provide appropriate modes of settlement, clarity about the definition of public versus private law will be important to this and future such cases against International Organizations like the UN.  Second, the status of the claimants, here private individuals who were never part of the ‘grand bargain’ underlying the CPIUN between UN member states was not explored, yet this seems significant to the question of material breach.

Judge Oetken has reserved judgement, and a decision in this case is not expected before the new year. Two other class actions have been filed in US courts and are currently pending.

For background on this case, please see my prior blogs on Opinio Juris and an October 17 program on CBC Radio entitled “The Current” in which journalists, lawyers, and an independent academic (myself) were interviewed. http://podcast.cbc.ca/mp3/podcasts/current_20141017_93209.mp3

Weekly News Wrap: Monday, October 27, 2014

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • A group of asylum seekers in Australia who took the immigration department to court over the exposure of their personal details in a major data breach have won a federal court appeal, and the immigration minister has been ordered to pay their costs.

UN/World

Events and Announcements: October 26, 2014

by An Hertogen

Events

  • ALMA and the Radzyner School of Law of the Interdisciplinary Center (IDC) invite you to the opening session of the Joint International Humanitarian Law Forum for the 2014-2015 Academic year. The session will be held on Wednesday, October 29, 2014, 18:30, in the meeting room of the Communication school (room C228, Arazi-Ofer Building, 3nd floor) at the IDC. In this session they will host the distinguished Prof. Malcolm Shaw, Emeritus Sir Robert Jennings Professor of International Law, School of Law, University of Leicester. Prof. Shaw will discuss the topic of: Combatant Immunity for State Forces in Non-International Armed Conflicts. Following the presentation, there will be an open round table discussion. Please note that the session will be conducted in English. The meeting is free and open to the public. If you wish to attend the meeting please register in advance via forum [at] alma-ihl [dot] org.
  • On Thursday, October 30, from 4:00 to 5.30 p.m., GW Law will hold an event on Professor Chiara Giorgetti’s new book titled Litigating International Investment Disputes:  A Practitioner’s Guide (Brill/Nijhoff 2014).  The session will feature book contributors who will address topics such as selecting the arbitrator, representing the State, the award, and relationship of counsel/parties to the secretariat.  In addition to Prof. Giorgetti, panelists will include John Crook of GW Law, Eloise Obadia of Derains & Gharavi PLLC, and Jeremy Sharpe of the U.S. Department of State, Office of the Legal Adviser; the discussion will be moderated by Stanimir Alexandrov of Sidley Austin LLP.  The events will be held at GW Law, 2000 H Street, N.W., with the panel in the Jacob Burns Moot Court Room (Lerner 101), and a reception thereafter in the Dee Kelly Lounge.  All are invited.  No rsvp is needed. More information about the book here.

Call for papers

  • The 4th Conference of the Postgraduate and Early Professionals/Academics Network of the Society of International Economic Law (PEPA/SIEL) offers graduate students and early professionals/academics studying or working in the field of IEL an opportunity to present and discuss their research and to network with senior people in the field. The upcoming conference will take place on April 16-17, 2015 in Milan, Italy. If you wish to apply, or if you have any questions, write to: pepa2015conference [at] gmail [dot] com. The call for papers is here.
  • The deadline for submitting proposals for the 21st Annual Forum of Young Legal Historians (AYLH 2015, Tel-Aviv, March 1-3, 2015) is November 1. The Call for Papers and further information on the Forum are and will be available on the AYLH website.

Announcements

  • The International Federation of the Red Cross (IFRC) is pleased to announce the launch of the “First Annual International and Comparative Disaster Law Essay Contest”.   The contest is co-sponsored by the IFRC, the American Society of international Law (ASIL) and the “International Disaster Law Project” of the Universities of Bologna, Scuola Superiore Sant’Anna, Roma Tre and Uninettuno (also associated with the Italian Red Cross Cross), with support from the International Institute of Humanitarian Law. They are looking for entries from graduate or undergraduate students (regardless of major/concentration) with a deadline of January 30, 2015.  Among the top prizes are sponsored participation in next year’s week-long “International Disaster Law Course” in Sanremo and a year membership in ASIL and waiver of fees for attendance of the 2015 Annual meeting on April. Note that all submissions must be in English and must address international or comparative legal issues for disasters linked to natural hazards. They are also looking for qualified persons willing to serve as readers/scorers of some of the contest submissions. The reading would take place in the first 2-3 weeks of February. If anyone is willing and available, he/she should write to disaster [dot] law [at] ifrc [dot] org and include his/her CV. The web link for the contest 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. 

Lawfare Podcast on al-Bahlul

by Kevin Jon Heller

While in DC last week for the ICC/Palestine event at George Mason — I’ll post a link to the video when it becomes available — I had the pleasure of sitting down with Lawfare’s Wells Bennet and Just Security’s Steve Vladeck to discuss the oral argument at the DC Circuit on the al-Bahlul remand, which the three of us attended that morning. You can listen to the podcast at Lawfare here; Steve did most of the talking, because he understands the constitutional issues in the case better than anyone, but I weighed in a few times on the international-law side. I hope you enjoy it — and my thanks to Wells for inviting me to participate.

Mark Kersten on the Terror Attacks in Canada

by Kevin Jon Heller

These days, I usually use Twitter to point readers to blog posts that deserve their attention. But Mark Kersten’s new post at Justice in Conflict is so good — and so important — that I want to highlight it here. The post achieves the near-impossible, passionately indicting Canada’s right-wing government for creating a political environment ripe for terrorism without in any way suggesting that Wednesday’s terror attacks were justified. It’s a truly brilliant post, from top to bottom. Here is a snippet, concerning the Harper government’s foreign-policy disasters:

The Canadian government has actively pursued a political philosophy of retribution and control that tarnishes the country’s image as an ‘honest international broker’. Harper’s record attests to an unyielding mission to reshape Canada’s international identity as a tough and hard-power state. The Harper government plays the part of destructive belligerent in climate change negotiations and tar-sands cheerleader. It is first in line to threaten Palestine with “consequences” if Ramallah pursues accountability for alleged crimes committed by Israeli forces in Gaza. While it isn’t usually described as such (many prefer terms like “militarily engaged”), the reality is that Canada has been at war, primarily in Afghanistan, for most of the last decade. And while we should judge each decision to engage in wars on their own terms, the government has positioned itself as a military – rather than diplomatic or humanitarian – middle power. The role of Canadian citizens in the Afghan detainee scandal has been swept under the rug. The government willfully left a child soldier, Omar Khadr, to rot in Guantanamo and were the only Western government not to request the repatriation of their citizens from that nefarious island prison. It left Abousfian Abdelrazik, a Canadian citizen wrongly accused of terrorism, stranded in Khartoum for years and threatened anyone who tried to help him return to Canada with aiding and abetting terrorism. In a country that takes pride in seeing Lester B. Pearson as the father of peacekeeping, the government prefers to count the number of fighter jets it will buy than the number of peacekeepers it deploys. And, making matters worse, those who disagree with the Harper government’s approach to being “hard on crime”, “tough on justice”, and “a military power” are too often portrayed as naive or betraying Canadian values.

Sadly, it’s not just Canada that has pursued the kind of right-wing policies that make horrific acts of terrorism more likely. Very similar posts could — and should — be written about the Key government in New Zealand, the Abbott government in Australia, and (yes) the Obama government in the US. These misguided policies have done next to nothing to prevent terrorism; they create the illusion of security, not its actuality. Indeed, insofar as they do little more than further radicalize the populations they affect, the policies have made us all that much less safe.

Read Kersten. And if you are on an academic committee that is looking to appoint a brilliant young lecturer, hire him.

Guest Post: A CISG Question

by William S. Dodge

[William S. Dodge is The Honorable Roger J. Traynor Professor of Law at the University of California, Hastings College of the Law.]

The U.N. Convention on Contracts for the International Sale of Goods (CISG) sets forth substantive rules of contract law to govern contracts for the sale of goods between parties who have their places of business in different CISG countries. See Art. 1. The United States is one of 83 countries that have joined the CISG. According to figures from the Census Bureau, U.S. trade in goods with CISG countries exceeded $2.4 trillion in 2013, which means a lot of contracts to which the CISG potentially applies. (I have written about the need for American contracts students to have some exposure to the CISG here.) It is possible for contractual parties to exclude application of the CISG (see Art. 6), but they must do so expressly. A choice of law clause stating that the contract is governed by “the laws of California,” for example, would not be sufficient. See, e.g., Asante Technologies, Inc. v. PMC-Sierra, Inc., 164 F. Supp. 2d 1142, 1149-50 (N.D. Cal. 2001).

The CISG entered into force with respect to Brazil on April 1, 2014. But treaties do not become effective as domestic law in Brazil until approved by executive decree, which did not happen until October 16, 2014. See Decree No. 8.327. Trade in goods between the United States and Brazil averages $6 billion a month, so a lot of contracts for the sale of goods between Brazilian companies and U.S. companies were presumably entered between April 1 and October 16.

What law governs those contracts (or more precisely, those that did not effectively exclude application of the CISG)? It may well depend on the forum in which suit is brought. My guess is that a Brazilian court would not apply the CISG to these contracts because it was not effective as a matter of Brazilian law. But I expect that a U.S. court would apply the CISG to these contracts because the treaty was in force between Brazil and the United States as a matter of international law and binding on U.S. courts under the Supremacy Clause of the U.S. Constitution. If the parties have chosen arbitration, the answer should turn on the parties’ (presumed) intent, but that may be hard to fathom in a case like this. In any event, this situation presents a good example of the need for countries to make sure that treaties to which they are bound internationally are properly implemented in their domestic laws.

Guest Post: The Evolving Law of Foreign Official Immunity–Mortazavi and Bakhshi, Prince Nasser, and “Samantar II”

by Chimene Keitner

[Chimène Keitner is Harry & Lillian Research Chair and Professor of Law at UC Hastings. She is on Twitter @KeitnerLaw.] 

I look forward to discussing developments in the international law of non-state actor immunity on a panel on “Responsibility and Immunity in a Time of Chaos” at International Law Weekend this Saturday morning with co-panelists Kristen Boon and August Reinisch, moderated by Larry Johnson. For those of you who can’t attend, we thought we’d offer a taste of our discussion here on Opinio Juris.

In recent years, my research has focused on questions relating to the personal responsibility and ratione materiae immunity of individuals who act on behalf of states. The International Court of Justice has thus far managed to avoid dealing with the subject of ratione materiae immunity. As I recounted on Opinio Juris earlier this year, a Chamber of the European Court of Human Rights found in Jones v. United Kingdom that the grant of ratione materiae immunity for torture to Saudi officials by the U.K. State Immunity Act (SIA) did not interfere disproportionately with the applicants’ right of access to court.

Jurisprudence in other Commonwealth countries with state immunity acts that resemble the United Kingdom’s has largely tracked the House of Lords’s 2006 judgment in Jones v. Saudi Arabia. In that case, the House of Lords found that the SIA conferred immunity on foreign officials from civil proceedings for torture, even though its 1999 judgment in Pinochet (No. 3) established a lack of such immunity from criminal proceedings. As a matter of statutory interpretation, the distinction between criminal and civil proceedings finds some support in the explicit exclusion of criminal proceedings or prosecutions from the scope of the U.K., Canadian, and Australian state immunity acts. (For more on these cases, see here.) The Canadian Supreme Court’s October 10 judgment in Kazemi and Hashemi v. Islamic Republic of Iran reinforced this bifurcated approach by interpreting the Canadian SIA to provide immunity from civil proceedings to two named officials (Mortazavi and Bakhshi) who allegedly ordered, oversaw, and actively participated in the torture to death of Canadian photojournalist Zahra Kazemi.

Given the exclusion of criminal proceedings from the scope of the SIA, claims to immunity ratione materiae from prosecution for torture in U.K. courts have followed the different path set out in Pinochet (No. 3). As Oliver Windridge related here at Opinio Juris, the way has been cleared for a criminal investigation into claims that Prince Nasser bin Hamad Al Khalifa, the son of the King of Bahrain, was directly involved in the torture of three individuals in a prison in Bahrain. Although some reports indicated that the prince had “lost” his immunity, it would be more accurate to state that the U.K.’s Director of Public Prosecutions ultimately determined that the prince did not benefit from, and never had benefited from, ratione materiae immunity from criminal proceedings for torture. Oliver’s post also notes that, in January 2013, a Nepalese army officer was charged in the U.K. with intentionally inflicting severe pain or suffering as a public official on two individuals during the 2005 civil war in Nepal.

In the United States, the only prosecution for torture to date remains that of Chuckie Taylor, who was sentenced in 2009 to 97 years in prison for torture committed in Liberia. The Torture Victim Protection Act, 28 U.S.C. § 1350 note, explicitly creates a civil cause of action for torture or extrajudicial killing committed under color of foreign law. Unlike the state immunity acts at issue in the civil cases described above, the U.S. Foreign Sovereign Immunities Act (FSIA) does not exclude criminal proceedings. The Supreme Court determined in Samantar v. Yousuf (2010) that the FSIA does not apply to suits against individual officials in their personal capacity that seek damages from the defendant’s “own pockets,” in which the state is not the “real party in interest.” In the absence of a statute, foreign official immunity in U.S. courts is governed by the common law. (For a guide to analyzing immunity claims post-Samantar, see here.)

Curt Bradley and Jack Goldsmith argued against taking a U.S.-style approach to personal capacity vs. official capacity suits in a short article published before Samantar was decided. Although I have taken issue with parts of their historical analysis here, their basic point that different policy considerations are in play in designing domestic immunity regimes and international immunity regimes remains sound. Curt has blogged about post-Samantar cases here, and John Bellinger has been chronicling these developments as well. On October 14, the Supreme Court asked for the Solicitor General’s views on whether to review the Fourth Circuit’s determination on remand that there is no ratione materiae immunity for torture because it is a jus cogens violation.

Much conceptual and historical analysis remains to be done as we await the Solicitor General’s brief and the Supreme Court’s decision about whether to tackle the issue of ratione materiae immunity under the “common law” in Samantar II or a future case. Just as the Court should not transplant domestic immunity doctrines wholesale into the foreign official immunity context, so too should it resist parroting decisions that interpret state immunity acts with fundamentally different structures and provisions. It is more important to resolve these issues properly than it is to resolve them quickly or all at once—especially since, in the U.S. context, the Court’s examination of common law immunity in civil cases could have potentially unintended consequences for criminal proceedings as well.

Dapo Akande Promoted to Professor of Public International Law at Oxford

by Kevin Jon Heller

I want to congratulate my friend — and friend of Opinio Juris — Dapo Akande on his promotion to Professor of Public International Law at Oxford University. It’s a massive accomplishment, and one richly deserved. Here is a snippet of Dapo’s impressive bio:

Dapo Akande is also Yamani Fellow at St. Peter’s College and Co-Director of the Oxford Institute for Ethics, Law and Armed Conflict (ELAC) & the Oxford Martin Programme on Human Rights for Future Generations. He has held visiting professorships at Yale Law School (where he was also Robinna Foundation International Fellow), the University of Miami School of Law and the Catolica Global Law School, Lisbon. Before taking up his position in Oxford in 2004, he was Lecturer in Law at the University of Nottingham School of Law (1998-2000) and at the University of Durham (2000-2004). From 1994 to 1998, he taught international law (part-time) at the London School of Economics and at Christ’s College and Wolfson College, University of Cambridge.

He has varied research interests within the field of general international law and has published articles on aspects of the law of international organizations, international dispute settlement, international criminal law and the law of armed conflict. His articles have been published in leading international law journals such as the American Journal of International Law, the British Yearbook of International Law and the European Journal of International Law . His article in the Journal of International Criminal Justice on the “Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits” was awarded the 2003 Giorgio La Pira Prize.

Dapo has advised States, international organizations and non-governmental organizations on matters of international law. He has worked with the United Nations on issues relating to international humanitarian law and human rights law; acted as consultant for the African Union on the international criminal court and on the law relating to terrorism; and also as a consultant for the Commonwealth Secretariat on the law of armed conflict and international criminal law. He has also provided training on international law to diplomats, military officers and other government officials. He has advised and assisted counsel, or provided expert opinions, in cases before the International Court of Justice, the International Tribunal for the Law of the Sea, international arbitral tribunals, WTO and NAFTA Dispute Settlement Panels as well as cases in England and the United States of America.

There are four scholars who write in my areas that I am afraid to disagree with — because when we do disagree, odds are that they are right and I am wrong. The first three are Marko Milanovic, Steve Vladeck, and my co-blogger Jens Ohlin. The fourth is Dapo. He is, quite simply, one of the finest scholars writing today.

Congratulations, Dapo!

ICC and Palestine Event at George Mason

by Kevin Jon Heller

The event at George Mason University on the ICC and Palestine is today. Here, again, is the flyer:

FINALFLYEROCTOBERPANELJpeg

If you cannot attend, the live-stream link is here.

Weekly News Wrap: Monday, October 20, 2014

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • Australian police have agreed to assist China in the extradition and seizure of assets of corrupt Chinese officials who have fled with hundreds of millions of dollars in illicit funds, the Sydney Morning Herald newspaper reported on Monday.

UN/World

Ebola will be a Chapter VII issue

by Jens David Ohlin

Right now, the Ebola virus is spreading across the Africa, and the ability of the most affected states – Sierra Leone, Liberia, and Guinea – to stop and contain the virus is very much in doubt. Although only a few cases have been reported in the United States and Europe, it is clear that it will be impossible to completely avoid disease transmission here.

Furthermore, it is also clear that the healthcare systems of Spain and the United States have been incapable of correctly handling cases so as to prevent transmission of the disease. In the U.S., for example, the healthcare system was unable to correctly contain an outbreak that initially started with just one patient. Imagine what would happen if the United States were facing 1000 cases of Ebola. Although clearly the U.S. has more resources to deal with such a scenario than, say, Sierra Leone or Liberia, the current cases do not inspire confidence.

One of the factors leading to the spread of Ebola is the high mobility of today’s populations. We no longer live in one city or even one country. We move around. Once Ebola changed from a rural virus to an urban disease, it became that much easier for the disease to reach epidemic levels.

The other reason the disease spread so quickly is that the governments of Liberia, Sierra Leone, and Guinea responded inappropriately to the outbreak. They did not put in place the required measures to identify and isolate potentially infected Ebola patients. Also, medical personnel did not – and in many cases still do not – have access to the necessary protective equipment to prevent them from contracting the virus and, in turn, passing it along to others. The failures here run deep and are systemic.

The outbreak will cross international borders, potentially overwhelming national healthcare systems, and causing thousands of deaths. Experts have already predicted that, absent appropriate intervention and global resources, by the end of November the outbreak could claim as many as 10,000 new infections each week. Imagine what the weekly infection rate will be in January, or next June. The infection rate increase exponentially; the numbers are truly frightening.

The media attention to the disease has been schizophrenic. On the one hand, news outlets are reveling in public hysteria over Ebola because it no doubt increases readership and viewership. At the same, the same media outlets run stories or commentaries decrying the public hysteria as irrational and disproportionate to the level of threat. The latter is incredibly unhelpful because it ignores the fact that many governments, in both Africa and even the United States, have under-reacted to the threat and therefore missed the boat with regard to early containment. I think much of the public hysteria is warranted and rational because the government has done insufficient planning for a worst-case scenario situation.

All of this adds up to a situation that may very well threaten international peace and security. The director of the W.H.O. has already said as much, although I’m not sure if she was aware of the legal consequences of this statement. In any event, I am aware of the legal consequences, and I do believe that Ebola may become a threat to international peace and security.

Once that happens, the Security Council will have the authority under Chapter VII to declare Ebola a threat to international peace and security and to authorize measures to repair the breach. Those remedies could include outside interventions in effected countries even in the absence of local government consent. The time might come when outside governments need to do more than offer assistance; they might need to take control over the response, not just because of a humanitarian obligation but also from collective self-interest. The way to defeat Ebola will be to take the fight to Africa rather than sit back and wait for it to come here.

This issue doesn’t line up as Africa versus the rest of the world. The countries with the greatest interest in seeing a more intrusive global response are the African nations that border on the outbreak but have so far remained Ebola-free. If the outbreak spreads, they will be the hardest hit and it is their interests that would be most vindicated by a global intervention. An uncontained outbreak in Sierra Leone, Liberia, and Guinea is a disaster for their African neighbors.

Outside intervention would infringe the sovereignty of the host governments, but with a Chapter VII enforcement resolution from the Security Council, those putative violations of sovereignty would be lawful and consistent with the U.N. Charter.

I hope none of this becomes necessary. I hope the Ebola outbreak is contained and eliminated next week. I hope one of the vaccines proves effective and the whole world gets the vaccine by January. But there is no rational reason for optimism. Disaster planning requires preparing for the worst. If Ebola lingers and spreads, it makes sense to think now of the appropriate global response, the role of the U.N. and the Security Council in leading that response, and the structure of a legal argument that would justify intrusive interventions.

Events and Announcements: October 19, 2014

by Jessica Dorsey

Events

  • On Thursday, November 13, 2014, the University of Georgia School of Law and the ASIL International Legal Theory Interest Group will convene a book workshop on “International Law as Behavior,” at Tillar House, 2223 Massachusetts Ave., NW, ASIL’s headquarters in Washington, DC.  Organized by Harlan Cohen (University of Georgia School of Law), the workshop will bring together scholars working at the cutting edge in a variety of different fields, including constructivist international relations theory, anthropology, behavioral law and economics, organizations theory, social psychology, and sociology to discuss how these approaches can best be applied to the study of international law, how these approaches can complement both each other and positivist and rationalist accounts, the opportunities and challenges of working across these fields, and the development of a common language and tools to study how international actors actually behave, how their rationality is bounded by psychology, how they operate as members of groups and recipients of culture, and how they write and follow organizational scripts.  Participants include Elena Baylis (University of Pittsburgh School of Law), Tomer Broude (Hebrew University Faculty of Law), Adam Chilton (University of Chicago School of Law), Sungjoon Cho (IIT Chicago-Kent College of Law), Martha Finnemore (George Washington University School of Law Elliott School of International Affairs), Jean Galbraith (University of Pennsylvania Law School), Derek Jinks (University of Texas School of Law), Ron Levi (University of Toronto Global Affairs and Sociology), Tim Meyer (University of Georgia School of Law), Galit Sarfaty (University of British Columbia Faculty of Law), and Kathryn Sikkink (Harvard Kennedy School).  A book based on presentations at the workshop will follow.  For more information and to register, please click here.
  • The Minerva Center for Human Rights at Tel Aviv University is pleased to invite the public to the conference “Lessons for Transitional Justice in Israel-Palestine”, to be held on 16-17 November 2014 at Tel Aviv University. The conference builds on an academic collaboration between Israeli, Palestinian and South African students and researchers who participated last summer in an intensive two-week Transitional Justice Workshop at the University of Johannesburg. At the conference, international and local scholars will share perspectives on current theories and practices that can shed light on possible transitional justice processes for Israel/Palestine, and students will present papers based on their research during the workshop. Please find conference program hereFor further information please contact minerva [at] tauex [dot] tau [dot] ac.il
  • On 3 December 2014 the International Humanitarian and Criminal Law Platform, a research platform coordinated by the T.M.C. Asser Instituut, is hosting a conference:The Cyber Warfare Manual: A Detailed Assessment. This conference, organized in cooperation with the Netherlands Ministry of Defence, the Gerda Henkel Stiftung and the University of Amsterdam, will bring together top researchers and practitioners to critically discuss and assess the Manual, which is the result of a three-year effort by a distinguished group of international experts to examine how existing international law norms apply to this ‘new’ form of warfare. The conference will provide a general forum where the international legal community of The Hague and beyond can engage with people who were involved in the drafting of the Manual and others to discuss whether, and if so how, existing law can be applied to cyber threats.
  • Letters Blogatory, along with the Center for Transnational Business and the Law at Georgetown University Law Center, will be hosting an event to commemorate the 50th anniversary of the conclusion of the Hague Service Convention. The event, to be held in Washington on February 19, 2015, will bring together practitioners, central authority representatives, and academics to discuss and celebrate the Convention’s legacy and to look ahead to its future. There will be plenty of time for meeting and greeting, too! Please do mark your calendars, and RSVP. More information can be found here.
  • The Minerva Center for the Rule of Law under Extreme Conditions at the University of Haifa invites applications from researchers, graduate students (MA, Phd., Post-doc) and practitioners to take part in the Minerva Center’s research on cyber regulation, policy and theory during the 2014-2015 Academic Year. More information can be found here. The application deadline is 1 December 2014.
  • The 11th Annual Conference of the European Society of International Law will take place in Oslo, Norway from 10-12 September 2015. It is hosted by the PluriCourts Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, University of Oslo. The theme is: The Judicialization of International Law – A Mixed Blessing? More information can be found here.

Calls for papers

  • The Oil, Gas, and Energy Law (OGEL) and Transnational Dispute Management (TDM) Journals invite submissions for a joint Special Issue on Renewable Energy Disputes. These disputes may involve issues of public international law, EU and US law (at the supranational, national and subnational levels), private law and contractual arrangements. The Special Issue will examine these types of disputes and analyses their backgrounds and the reasons why they arose. Papers should be submitted by 15 January 2015 to the editor of the special Professor Kim Talus (University of Eastern Finland).

Announcements

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: October 4-17, 2014

by An Hertogen

This fortnight on Opinio Juris, Jens discussed how to get Quirin right when Quirin was wrong. Kevin asked for sources backing the US position on self-defence against non-state actors, while Kristen gave an overview of the legal issues up for debate at the General Assembly this fall. Julian expressed doubts about the strength of Greece’s legal arguments for the return of the Elgin Marbles.

We also had a range of guest posts, with Başak Çalı commenting on the Tory attack on the European Human Rights system, and Oliver Windridge discussing how a recent decision by the Director of Public Prosecutions for England and Wales confirms that there is no immunity for torture in England and Wales. Yanying Li followed up on an earlier post discussing the recent reforms for more orderly sovereign debt restructurings at the IMF.

Finally, Jessica and I wrapped up the international law headlines (1, 2) and listed events and announcements (1, 2). Our DC-based readers can hear Kevin speak on Monday at an event at George Mason University on the ICC and Palestine.

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

Does Greece Really Have a Legal Case for the Return of the Elgin Marbles? I Doubt It

by Julian Ku

Amal Alamuddin-Clooney, Kevin’s Doughty Street Chambers colleague, made news this week by visiting Greece as part of a legal team working for the return of the Elgin Marbles to Greece from Britain.  This is not ordinarily global tabloid fodder, but Alamuddin-Clooney’s recent marriage means she will draw media attention wherever she goes.

I don’t doubt her legal credentials (as well as that of her colleagues), but I do doubt the strength of their legal case for the return of the Marbles.  At the time the Marbles were removed from Greece, the Ottoman Empire had sovereignty over Greece and there is pretty decent historical evidence that Lord Elgin had their authorization to remove the Marbles, or if he did not have authorization, his removal was ratified by official acts of the Ottoman government.  (John Merryman seems to have made the most complete case here).

To be sure, there are strong moral arguments for the return of the Marbles to Greece. But Alamuddin-Clooney and her colleagues are hired for their legal expertise. On this front, I think they have a very tough case (which may be why they appear to have ruled out litigation already).  But I am open to counter-arguments (based on law, not on cultural nationalism) for the Greek case. .

Guest Post: Removing the cloak of immunity – the Director of Public Prosecutions for England and Wales accepts no immunity from criminal investigation into torture

by Oliver Windridge

[Oliver Windridge is a British lawyer specialising in international criminal and human rights law. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organisations affiliated to the author.]

Last week saw the discontinuation of alleged Bahraini torture survivor FF’s judicial review of the Director of Public Prosecutions for England and Wales (DPP) decision not to authorise a criminal investigation into the alleged involvement of Prince Nasser bin Hamad Al Khalifa, the son of the King of Bahrain, in torturing persons involved in the political protests in Bahrain in April 2011. Unfortunately, since the DPP withdrew from the case just prior to the court hearing there does not appear to be a final judgement, only this 2013 directions hearing judgement which  sets out the parties’ submissions.

As background, FF took part in Bahraini political protests in February and March 2011 which resulted in him being allegedly badly beaten by police and held without charge. In July 2012 a dossier prepared by the European Center for Constitutional and Human Rights (ECCHR) alleged that Prince Nasser was directly involved in the torture of detained prisoners linked to the same political protests FF participated in. In addition to being the son of the King of Bahrain, Prince Nasser also holds the position of Commander of the Royal Guard.

The ECCHR’s dossier was handed to the British police which in turn lead the Crown Prosecution Service for England and Wales (CPS) to indicate in August 2012 that Prince Nasser would enjoy personal immunity under Section 20 of the State of Immunity Act 1978 since Prince Nasser was a member of the Bahraini royal household and/or functional immunity pursuant to section 1 of the same act in relation to any conduct in his role as Commander of the Royal Guard.

Following a request for review of the CPS’s decision, the CPS Special Crime and Counter Terrorism division indicated in September and October 2012 that Prince Nasser did not enjoy personal immunity under Section 20 (1) (b) of the 1978 Act as his household was independent from that of his father, the King of Bahrain. It maintained however, that Prince Nasser still enjoyed functional immunity under Section 1 of the 1978 Act based on his position as Commander of the Royal Guard of Bahrain

FF sought judicial review of the CPS’s decision submitting that Section 1 of the 1978 Act does not apply to criminal proceedings. He cited in support Pinochet III and Jones v Saudi Arabia, both of which he argued supported his contention that public officials of foreign states have no functional immunity from criminal process in relation to the international crime of torture.  FF argued therefore that prosecution of Prince Nasser for torture committed in Bahrain would be possible in UK courts pursuant to the extraterritorial criminal jurisdiction under Section 134 of the Criminal Justice Act 1988. In January 2013 FF was granted judicial review permission.

As mentioned above, the matter was due to be heard in the High Court of England and Wales on 7 October 2014, roughly one year and 10 months after permission for judicial review was granted. However shortly before, the DPP appears to have accepted that Prince Nasser does not enjoy immunity from torture allegations and withdrew from the case.

Continue Reading…

Guest Post: Recent Reforms for More Orderly Sovereign Debt Restructurings at the IMF

by Yanying Li

[Yanying Li is a Ph.D researcher at Leiden University, the Netherlands, and a visiting research fellow at the University of Cambridge]

Recent reforms for more orderly sovereign debt restructurings have been prompted by the so-called “trial of the century” in sovereign debt restructuring— NML Capital Ltd. v. Republic of Argentina. In short, various court decisions in New York found Argentina in breach of the pari passu clause in its defaulted bonds, and prohibited Argentina from making payments to those creditors who accepted the bond exchange offer unless other creditors who rejected the exchange offer (i.e. holdout creditors), including plaintiffs in this case, were paid the same percentage of the amount due to them. The pari passu clause in question provides that the debtor’s payment obligation under that particular bond series shall rank equally with all other existing and future unsubordinated and unsecured external indebtedness. Given that Julian has already addressed the latest development in this case, my little contribution here will only focus on the issues of legal reform in the context of sovereign debt restructuring.

As discussed in my earlier post, on September 9, 2014, the United Nations General Assembly adopted a resolution entitled “Towards the establishment of a multilateral legal framework for sovereign debt restructuring processes”. The modalities for the intergovernmental negotiations and the adoption of the text of the multilateral legal framework will be discussed at the General Assembly’s 69th session plenary meeting on November 14, 2014. In the meantime, the directors and staff at the International Monetary Fund did not just sit back and relax. As noted in Press Release No.14/459dated October 6, the IMF’s Executive Board approved the staff paper on “Strengthening the Contractual Framework to Address Collective Action Problems in Sovereign Debt Restructuring”. The staff paper suggests a few contractual reforms designed to tackle collective action problems so as to achieve orderly sovereign debt restructurings. These reforms include potential changes to international sovereign bond contracts, namely the pari passu clause and the collective action clause (“CAC”).

Continue Reading…

Legal Issues at the GA This Fall

by Kristen Boon

For those interested in the 6th committee program at the General Assembly currently underway,  the schedule is available here.   Interesting topics are being discussed, including the Rule of Law, International Terrorism, Universal Jurisdiction, finalizing a draft UNCITRAL treaty on transparency in treaty based Investor-State disputes, and an update on the Responsibility of International Organizations.  The ILC’s report will be discussed between October 27 – November 5.  Documents for the sessions are available on the PaperSmart portal, and all the plenaries can be viewed by live webcast here.

In addition, on Thursday, Oct. 16, elections will take place for five non-permament Security Council seats.   Background on the seats available and the countries vying for them is available here.

 

Panel at George Mason on the ICC and Palestine

by Kevin Jon Heller

I will be participating next week in what should be an excellent event at George Mason University on the ICC and Palestine. The other participants are all excellent — David Luban, Meg DeGuzman, George Bisharat, and the organizer, Noura Erakat. Here is the flyer:

FINALFLYEROCTOBERPANELJpeg

I hope at least some Opinio Juris readers will be able to attend and hear my dire prognostications in person. (If you do, make sure to come say hello.) The event will be live-streamed for those that do not live nearby.

Weekly News Wrap: Monday, October 13, 2014

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

  • UN Secretary-General Ban Ki-moon has made a surprise visit to the Libyan capital aiming to bolster talks between rival groups that have divided the North African nation with two separate parliaments and governments.

A Quick Bleg on the US and Self-Defence

by Kevin Jon Heller

A few years ago, John Brennan articulated the US position concerning self-defence against non-state actors:

Because we are engaged in an armed conflict with al-Qa’ida, the United States takes the legal position that —in accordance with international law—we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time.

As the quote makes clear, the US believes that its position is consistent with international law. Yoram Dinstein takes a similar position in his seminal War, Aggression and Self-Defence, at least in the context of international armed conflict. So here are my questions:

[1] Does anyone know where the US might have defended/explained its position at more length, whether in a legal brief or elsewhere?

[2] Does anyone know of scholars other than Dinstein who take the position that once a state acts in self-defence, none of its (extraterritorial) acts in the resulting armed conflict are subject to the jus ad bellum?

Any suggestions or citations from readers would be most appreciated.

Events and Announcements: October 12, 2014

by An Hertogen

Events

  • The Minerva Center for Human Rights at Tel Aviv University is pleased to invite the public to the conference “Lessons for Transitional Justice in Israel-Palestine”, to be held on November 16-17, 2014 at Tel Aviv University. The conference builds on an academic collaboration between Israeli, Palestinian and South African students and researchers who participated last summer in an intensive two-week Transitional Justice Workshop at the University of Johannesburg. At the conference, international and local scholars will share perspectives on current theories and practices that can shed light on possible transitional justice processes for Israel/Palestine, and students will present papers based on their research during the workshop. The conference program available here. For further information please contact minerva [at] tauex [dot] tau [dot] ac.il.
  • The Rethink Rebuild Society in Manchester will hold a conference on October 17Syrian Conflict in Regional Crises: Complications, Implications, and the Way ForwardThis conference represents a critical forum through which policy makers, NGOs, academics and activists can together identify and discuss the most appropriate British domestic and international policy towards Syria in light of current research and developments on the ground, specifically the emergence of IS (formerly ISIS) and the impact that this will have on British domestic and international policy, as well as action by the international community. Conference speakers include Dr. Christopher Phillips (Queen Mary, University of London), Dr. James Pattison (University of Manchester), Asim Qureshi (Research Director of CAGE Prisoners), Anas Al Abdah (Syrian National Coalition), and Raffaello Pantucci (Royal United Services Institute). The conference deliberations will focus on the following themes: The situation in Syria: misconceptions vs. realities; The emergence of IS (formerly ISIS): British jihadists, media coverage, and national policy; Where is Syria heading? Decoding the future of Syria and the region; Is British policy on the right track?; The role of the international community. Further conference information and registration can be found at conference website.

Calls for papers

  • The Human Rights Essay Award Competition sponsored by the Academy on Human Rights and Humanitarian Law seeks to stimulate the production of scholarly work in international human rights law. Awardees receive a full scholarship to attend the 2015 Program of Advanced Studies in Human Rights and Humanitarian Law in Washington D.C. This year’s topic is “Transitional Justice, International Human Rights and Humanitarian Law” and the deadline to submit is February 1, 2015. Participants have the flexibility to choose any subject related to the assigned topic. The best articles may be published in the American University International Law Review. For detailed guidelines about the award please visit the website or e-mail the Academy.
  • The Texas International Law Journal will be celebrating its 50th year in 2015. They are publishing a special 50th anniversary issue to commemorate the occasion. The Journal is seeking submissions from scholars in all areas of international law. These submissions can address any topic in international or comparative law, but should be focused on significant developments in international law over the last 50 years and their future implications. They invite you to submit an article or brief comment as detailed in the call for papers.

Announcements

  • Professor S.I. Strong of the University of Missouri School of Law is conducting an anonymous electronic survey as part of a research project entitled “Perceptions and Use of International Commercial Mediation and Conciliation.”  International commercial mediation and conciliation has recently made the news as a result of a decision by the United Nations Commission on International Trade Law (UNCITRAL) to give further consideration to a proposal from the U.S. Department of State regarding an international convention on international commercial mediation and conciliation.  Those who wish to participate in this survey can do so by clicking on this link or pasting this e-address into their browser <https://www.surveymonkey.com/s/JH6VHQT>.   The survey should take approximately ten minutes to complete and will remain open until 11:59 p.m. Central Daylight Time (CDT) on October 31, 2014.  Those with questions about this project can contact Professor Strong at +1-573-882-2465 or strongsi [at] missouri [dot] edu.  Questions about participants’ rights as a research subject can be directed to the University of Missouri Campus Institutional Review Board at +1-573-882-9585.
  • The Goettingen Journal of International Law, which is Germany’s first open-access international law journal, has recently released the first issue of its sixth volume. Issue 6.1 contains, inter alia, two articles on the role of developing countries in WTO law and two on the forms of responsibilities of States in international law, whereof one is by Otto Spijkers and based on one of his blog posts on this blog. The article, as well as the whole issue can be accessed at the journal’s website.

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 to Get Quirin Right When Quirin Was Wrong

by Jens David Ohlin

On Monday, the defense in the Al Bahlul case filed their reply brief. The case is important because it squarely presents the issue that was left hanging after Hamdan, i.e. whether the military commissions have jurisdiction to try inchoate conspiracy. It also raises the far deeper question of whether the jurisdiction of the military commissions is limited to offenses against the law of nations (the international law of war), or whether the military commission’s jurisdiction to try law of war offenses includes domestic offenses as well. The government has repeatedly argued in the past that historically U.S. commissions were used to try violations of the common law of war, such as conspiracy. If that argument holds water, then it does not really matter whether inchoate conspiracy is an international offense or not.

There has been a lot of commentary on this issue, and it seems to me that the heart of the dispute has to be Quirin, the German saboteurs case during World War II. In that case, the petitioners were prosecuted before a military commission after landing in the U.S., burying their uniforms, and setting afoot with orders to commit acts of sabotage against strategic installations. They were convicted by military commission and appealed to the Supreme Court.

The problem with the Quirin precedent is that the Supreme Court probably assumed that spying and sabotage were international offenses, which they are not. The proper understanding of the situation, which was correctly identified by Baxter in his famous article, was that the belligerents in Quirin were not entitled to the privilege of belligerency and therefore liable for prosecution under domestic law. But being unprivileged and subject to domestic prosecution is not the same as committing an international offense.  For what is worth, the best reading of Quirin is that the Supreme Court conflated these two situations:

By a long course of practical administrative construction by its military authorities, our Government has likewise recognized that those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission. This precept of the law of war has been so recognized in practice both here and abroad, and has so generally been accepted as valid by authorities on international law that we think it must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War.

This specification so plainly alleges violation of the law of war as to require but brief discussion of petitioners’ contentions. As we have seen, entry upon our territory in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and war-like act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents. It is without significance that petitioners were not alleged to have borne conventional weapons or that their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States. Paragraphs 351 and 352 of the Rules of Land Warfare, already referred to, plainly contemplate that the hostile acts and purposes for which unlawful belligerents may be punished are not limited to assaults on the Armed Forces of the United States. Modern warfare is directed at the destruction of enemy war supplies and the implements of their production and transportation quite as much as at the armed forces. Every consideration which makes the unlawful belligerent punishable is equally applicable whether his objective is the one or the other. The law of war cannot rightly treat those agents of enemy armies who enter our territory, armed with explosives intended for the destruction of war industries and supplies, as any the less belligerent enemies than are agent similarly entering for the purpose of destroying fortified places or our Armed Forces. By passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or by discarding that means of identification after entry, such enemies become unlawful belligerents subject to trial and punishment.

 

The Quirin decision is notoriously difficult to read because the court is inexact with its language. It appears to me that the Court assumed that an unprivileged belligerent who commits an offense out of uniform would be guilty of an international offense — a conclusion that does not follow. In reality, spying and related offenses are not, and were not, international offenses, but where offenses against domestic law, albeit ones that are mirrored in some way in almost every nation.

Herein lies the problem: How do you correctly interpret Quirin when Quirin‘s jurisdictional theory is built on a mistake? In my view, the correct reading is that Quirin stands for the proposition that military commissions are limited to prosecuting international offenses because that is what the Supreme Court believed spying to be. The fact that spying is a domestic offense does not, and should not, transform its holding into a much broader jurisdictional theory: that military commissions have jurisdiction over domestic offenses as well. True, the Supreme Court in Quirin upheld the military commission’s jurisdiction over spying, and spying is a domestic offense, but in reality the court was upholding the jurisdiction over spying-qua-international-offense, a category that unfortunately is a null set.

The defendant’s reply brief does not take this line. Rather, the defense makes the much simpler argument that spying was indeed an international offense, and that both the government today and Baxter got this wrong.  Here is the crucial paragraph in Al Bahlul’s brief:

Regardless of this article’s scholarly merits, Quirin is the authoritative law
in this case. And regardless of whether spying’s status changed after the Second World War, Quirin had a wealth of precedent and international legal authority
behind it in 1942. Lassa Oppenheim, International Law 2:223 (1921)
(“Oppenheim”) (“persons committing acts of espionage or war treason are – as will be shown below – considered war criminals and may be punished[.]”), Supp.App. 53; Henry Halleck, International Law 1:628-29 (1908) (“Halleck”) (“The act of spying is an offence against the laws of war alone; it is no crime in time of peace”), Supp.App. 36-37; George Davis, Outlines of International Law 241 (1887) (including spying within the “Crimes and Offences against the Laws of War” and a “crime[] at International Law[.]”), Supp.App. 13-14; Winthrop, at 770 (“By the law of nations the crime of a spy is punishable with death.”), Supp.App. 89; M. de Vattel, The Law of Nations 375 (1758) (describing spying as a form of treachery), Supp.App. 5; Military Commissions, 11 Op. Att’y Gen. 297, 312 (1865)
(“Infractions of the laws of nations are not denominated crimes, but offenses. …
[Acting as] a spy is an offense against the laws of war”); Hague Convention (IV)
Respecting the Laws and Customs of War on Land and Its Annex, Oct. 18, 1907,
36 Stat. 2277, arts. 29-31 (regulating the punishment of spies). In fact, the very
first spying statute, passed in 1776, stated that spies should “suffer death according to the law and usage of nations.” Supp.App. 49-50.

While this is a conceptually clean argument, I don’t find it persuasive. Oppenheim’s quote simply asserts that spies are criminals without labeling the offense as domestic or international; Halleck too refers to it as an offense against the laws of war without calling it an international offense, the issue at bar here. Winthrop refers to it as a rule of the law of nations, although the quote does not say whether the offense itself is international or simply whether the law of nations dictates that spies are unprivileged (and by extension liable for punishment of domestic crimes), which is a far different matter. Vattel refers to it as treachery which again doesn’t speak to the classification issue. Finally, the Hague Convention regulates the manner in which spies will be punished, which again does not logically entail the crime’s classification as an international offense. That leaves the Davis quote as the only one that directly speaks to the international nature of the offense.

So my argument is different from the government’s argument and different from the defendant’s argument, although in result I side with Bahlul. Quirin stands for the proposition that military commissions prosecute international offenses, but not because the offenses in Quirin actually were international offenses, but simply because the Supreme Court (incorrectly) assumed that to be the case. And I think this mistake (conflating international offenses with unprivileged conduct violating domestic law) is an easy one to make and one that was more common in the past than it is today. Interpretation demands that we find the deeper principle in Quirin, and that is that military commissions prosecute international offenses.

Weekly News Wrap: Monday, October 6, 2014

by An Hertogen

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

World

  • Last week, the 7th Meeting of the Parties to the Cartagena Protocol on Biosafety met in Pyeongchang. The International Institute for Sustainable Development has a summary of the proceedings here.
  • The IMF and the World Bank are holding their Annual Meetings in Washington DC this week. For civil society coverage, see here.

Guest Post: Back to Square One after Sixty Years? The Tory Attack on the European Human Rights System

by Başak Çalı

[Başak Çalı is Associate Professor of International Law at Koç University Law School, Turkey, and a member of the Executive Board of the European Society of International Law]

We, in the ‘from Reykjavik to Vladivostok’ Europe, have grown accustomed to being proud of the European Human Rights System in the last forty or so years. We teach courses on European Human Rights Law that distill over ten thousand European Court of Human Rights judgments. We start our lectures on European Human Rights Law by pointing out that Europe, despite all its flaws, has the most effective regional system. We note that the European Court of Human Rights has been cited by the US Supreme Court.  We celebrate how the effective rights doctrine has recognised and empowered Irish catholic women trying to divorce, Cypriot gay men wishing to walk safely on the streets, Kurdish mothers looking for their disappeared sons, Bulgarian rape victims, Azeri journalists, British children wrongly placed in care and more, so many more. We underline the importance of the guidance that the European Court of Human Rights has provided to domestic judges, prosecutors, law enforcement agencies and legislators on how to take into account human rights when doing their respective jobs. We also salute the fact that the European Human Rights System has brought those us of who live between Reykjavik and Vladivostok together in a recognition of our common humanity, its frailty and our desire for a common dialogue on human rights regardless of our jurisdictional differences. That is why a judge in Diyarbakır, Turkey has given some thought to Mr. McCann and the British military operation in Gibraltar in 1988. Why a judge in Scotland has asked herself what does the case of Salduz mean for her to respect fair trial rights.  We also spend long hours in classrooms, courtrooms and parliaments discussing whether the European Court of Human Rights got the ‘margin of appreciation’ right this time.

Now all that celebration and all the hard and painstakingly incremental gains of the European Human Rights System, a system based on solidarity to reach the common purpose of the promotion of human rights of all, is under serious threat. Unlike the debates that have ensued in the last ten years, the danger is not the Court’s famed gigantic case-load (as has been captured in the cliche of the ‘victim of its own success’) or the slow implementation of its judgments by some of the worst offenders. One political group in one country is out to shake the very foundations of the European Human Rights System.
Continue Reading…

Events and Announcements: October 5, 2014

by An Hertogen

Events

  • International Criminal Court Prosecutor Fatou Bensouda will keynote “Children & International Justice,” a conference to be held on Tuesday, October 28, 2014, at the University of Georgia School of Law in Athens, home institution of the Prosecutor’s Special Adviser on Children in & affected by Armed Conflict, Professor Diane Marie Amann. Taking part will be experts from academia and the practice; from UNICEF and the Office of the Special Representative to the U.N. Secretary-General for Children & Armed Conflict; and from NGOs like Human Rights Watch, the International Center for Transitional Justice, the International Committee of the Red Cross, No Peace Without Justice, Protect Education in Insecurity & Conflict, Save the Children, and The Carter Center. Papers will be published in the Georgia Journal of International & Comparative Law. Additional sponsors include the Dean Rusk Center for International Law & Policy, the Georgia Law Project on Armed Conflict & Children, the African Studies Institute of the University of Georgia, the Planethood Foundation, and the American Society of International Law-Southeast. Details and registration can be found here.
  • On Monday October 20, 2014, the University of Luxembourg will host a symposium, jointly organised with the UNHCR, on the protection of persons fleeing situations of armed violence. The event will consider the issue of assessing claims for international protection for persons fleeing armed conflict or other situations of violence: using Article 2A of the 1951 Geneva Convention or Article 15 of the EU Qualification Directive? Particular attention will be paid to the new UNHCR guidelines on the subject. Participants will include Pascale Moreau (UNHCR), Advocate General Eleanor Sharpston (CJEU), Judge Lars Bay Larsson (ECJ), Judge Ledi Bianku (ECHR), Alice Edwards (UNHCR), Prof. James Sweeney (Lancaster University), Blanche Tax (UNHCR), Serge Bodart (ULB), Prof. Matthew Happold (University of Luxembourg), and Philippa Candler (UNHCR). Further details of the programme can be found here. The event will take place in English and French with simultaneous translation. Attendance at the symposium is free but registration is required and can be done online here.
  • You are invited to the INTRAlaw opening seminar to celebrate the establishment of the research centre INTRAlaw (International and Transnational Tendencies in Law) within the Department of Law at Aarhus University. The centre will provide the framework for coordinating the research activities of a number of senior staff members at the Department of Law in 2014-2018. The formal opening of INTRAlaw is accompanied by the inauguration lecture of Professor Edward Canuel who has been appointed honorary professor of law at Aarhus University. The seminar takes place on October 24, 2014, at Aarhus University Conference Centre – Fredrik Nielsens vej 2-4, 8000 Aarhus C, Denmark. The deadline for registration is October 17, 2014. To register, please send an email to Tinna Meyer. The full programme of the seminar can be found here.

Calls for papers

  • The Utrecht Journal of International and European Law has extended the deadline for its call for papers on ‘Privacy under International and European Law’ to November 14, 2014. Relevant issues may have broader implications, including: the responsibility of private actors under international law; privacy as a human right; the conflict between State interests and individual rights; the internet and territorial limits; data protection; diverging national approaches to the protection of privacy and the rise of The Board of Editors will select articles based on quality of research and writing, diversity and relevance of topic. The novelty of the academic contribution is also an essential requirement. Prospective articles should be submitted online via the website and should conform to the journal style guide. Utrecht Journal has a word limit of 15,000 words including footnotes. For further information please consult the website or email the editors at utrechtjournal [at] urios [dot] org.
  • From April 8-11, 2015, the American Society of International Law will convene its 109th Annual Meeting. The aim of the 2015 Annual Meeting is to promote a rigorous discussion on the question of how international law is “adapting to a rapidly changing world.” Next year, as in the past, the Planning Committee for the Annual Meeting would like to include at least one “New Voices” session that will provide a platform for junior scholars and practitioners to present their works-in-progress. ASIL invites submissions from non-tenured scholars and junior practitioners on any topic of international law. Any authors who submitted a paper abstract in the first call for papers and session proposals do not need to submit again; those abstracts remain under consideration. Abstracts should be well developed and reflect advanced progress on a paper that will be presented at the Meeting.  Final papers will be due by March 30, 2015. Send your abstract to asilannualmeeting [at] asil [dot] org by no later than Thursday, October 30, 2014, with the subject line “New Voices Proposal.”  Please send the abstract as a Microsoft Word attachment, including your name and contact information (email address & affiliation).  Abstracts should be no longer than 1000 words.  Selected authors will be notified by the end of November. Please direct any questions to the co-chairs of the ASIL New Professionals Interest Group at asilnpig [at] gmail [dot] com.
  • A conference on The European Union and the Arctic will bring together academics and practitioners from relevant disciplines such as international law, international relations, political science and marine biology, NGOs, representatives from EU institutions and international organizations to discuss the EU’s potential contribution to enhance Arctic governance. A roadmap for increasing the effectiveness of the EU’s action in the Arctic will be drawn at the end of the conference. This conference is timely as the Council of the European Union recently (Council conclusions on developing a European Union Policy towards the Arctic Region, May 24, 2014) requested the European Commission and the High Representative to present proposals for the further development of an integrated and coherent Arctic Policy by December 2015. Abstracts of no more than 400 words should be emailed to Dr. Nengye Liu (n [dot] x [dot] liu [at] dundee [dot] ac [dot] uk) by January 15 , 2015. All abstracts will be peer-reviewed. Selected speakers will be notified by January 31, 2015. 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: September 27- October 3, 2014

by An Hertogen

This week on Opinio Juris, the debate on the AUMF continued with Kevin pointing out the lack of evidence on Khorasan’s existence and the denuding of the concept of self-defence, and Jens discussing how ground troops will be necessary in the battle of ISIS, which requires a better legal foundation for the operation than the AUMF. On a comparative and lighter note, Kristen recommended Jon Stewart’s Daily Show piece on the UK’s debate on the authorization of air strikes against ISIL. In a guest post, Myriam Feinberg reported back from a recent workshop on the future of the 2001 AUMF.

In other guest posts, Abel Knottnerus updates us on recent events in the Kenyatta trial at the ICC, while Alvin Cheung established the international law case for democracy in Hong Kong.

Julian asked whether a US Court can hold another state in contempt under international law, and followed up with further thoughts on the matter. He also discussed how sovereigntist arguments against investor-state dispute resolution are now appearing on both sides of the ideological spectrum in the US.

Finally, Jens analysed the jurisdictional quagmire in the Al Nashiri-case before the Guantanamo military commission

As for our usual features, I wrapped up the international news headlines and listed events and announcements.

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

Further Thoughts: It is Indeed Legal for a U.S. Court Hold Argentina in Contempt

by Julian Ku

I am fascinated by the ongoing Argentina debt litigation saga (and not just because it looks more and more like a train wreck), but because it is forcing U.S. courts to burrow into even fuzzier nooks and crannies of the Foreign Sovereign Immunities Act to figure out what exactly US litigants can do when suing an intransigent foreign sovereign like Argentina.  I promised I would revisit the question of whether the U.S. judge’s contempt order against Argentina on Monday was legal, and here is my further (although still somewhat brief) analysis.

1) It is legal and consistent with U.S. domestic law for a U.S. court to issue contempt sanctions against a foreign sovereign.  

The most recent authority for this proposition is the quite recent 2011 opinion from the U.S. Court of Appeals for the D.C. Circuit, F.G. Hemisphere Associates v. Congo.   In that case, the D.C. Circuit rejected the argument by Congo (and the U.S. Government) that contempt sanctions due to Congo’s refusal to comply with discovery orders would violate the FSIA.  Following the U.S. Court of Appeals for the Seventh Circuit in Autotech Techs. v. Integral Research & Dev., 499 F.3d 737, 744 (7th Cir.2007), the Court held that nothing in the text or the legislative history of the FSIA suggested that there was any limitation on the inherent judicial power to issue contempt sanctions. It also rejected contrary precedent from the U.S. Court of Appeals from the Fifth Circuit in Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417 (5th Cir. 2006).

I think the DC and Seventh Circuits are right that nothing in the text or the legislative history of the FSIA bars a judicial contempt order against a sovereign.

2. There is some authority for the proposition that judicial contempt orders against foreign sovereigns are not accepted under international law, but there is reason to question whether there is international consensus supporting this authority.

Argentina can, and did, rightly point to Article 24 of the Convention on Jurisdictional Immunities of States and their Property as authority against the legality of contempt sanctions against sovereigns.

Article 24
Privileges and immunities during court proceedings
1. Any failure or refusal by a State to comply with an order of a court of
another State enjoining it to perform or refrain from performing a specific act
or to produce any document or disclose any other information for the purposes
of a proceeding shall entail no consequences other than those which may result
from such conduct in relation to the merits of the case. In particular, no fine or
penalty shall be imposed on the State by reason of such failure or refusal.

I think that the language of this provision seems to pretty clearly cover the situation in the Argentina debt case.  But I am less sure that Argentina is correct to call Article 24 of the Convention a rule of customary international law.

U.S. briefs citing Article 24 have been careful to call this rule an “international norm or practice” rather than a rule of international law.  There are good reasons to be circumspect on this point. After all, the Convention on Jurisdictional Immunities has NOT come into force, and has NOT even been signed by either Argentina or the United States, and has only been ratified by 14 other countries.  Moreover, the particular rule in Article 24 banning all court contempt-like orders is much broader than the domestic laws of states like the U.S. (see above) and even those agreed to by European states in the European Convention on State Immunity.  Article 17 of the European Convention is focused only on contempt orders for failure to produce documents, not all contempt orders for any act by the foreign sovereign.

So in conclusion, I am very confident that U.S. domestic law does NOT preclude a contempt order of any kind against a foreign sovereign.  I am somewhat confident that there is no clear consensus under international law that all contempt orders (even those unrelated to discovery) are prohibited, although I do think Argentina has a stronger case on this front.  However, in U.S. law, a rule of customary international law cannot override a federal statute, especially when the international acceptance of that rule remains uncertain.

As a practical matter, I do wonder if this whole contempt kerfuffle is just symbolic. The contempt order adds to Argentina’s obligations to pay, but it doesn’t really make it any easier for the creditors to collect since Argentina’s non-commercial assets in the U.S. remains immune from collection. While Argentina’s government may be outraged, this contempt order doesn’t really change the overall dynamic of this case, which remains a standoff that neither side is winning.

 

Guest Post: The International Law Case for Democracy in Hong Kong

by Alvin Y.H. Cheung

[Alvin Y.H. Cheung is a Visiting Scholar at the US-Asia Law Institute at NYU School of Law.]

After two years of increasingly acrimonious debate over Hong Kong’s electoral reforms for 2017, the city’s pro-democracy movement has finally attracted global concern.  A consistent theme of international responses has been that Hong Kong’s democratisation should occur in accordance with the Basic Law, the city’s quasi-constitution.  The White House’s official response to a petition supporting democracy in Hong Kong was that it supported universal suffrage in Hong Kong “in accordance with the Basic Law.”  Similarly, Richard Graham MP, who heads the All Party Parliamentary Group on China, expressed the hope that further consultations would ensure a satisfactory choice that remained “within China’s Basic Law” (a misnomer that uncomfortably emphasised where the veto power over Hong Kong’s electoral reforms lay).  The implication of these statements is that the debate over how Hong Kong should choose its own leader is purely a municipal law matter.  UN Secretary-General Ban Ki-moon made that point even more forcefully when his spokesperson stated that the Hong Kong protests were “a domestic matter.”  These accounts, framed purely in domestic law terms, are misleading. The 1984 Sino-British Joint Declaration on the Question of Hong Kong (Joint Declaration) and the International Covenant on Civil and Political Rights (ICCPR) – properly interpreted – both require that the Hong Kong electorate have a genuine choice in its leader.

Chief Executive Elections in Hong Kong and the National People’s Congress Standing Committee (NPCSC) Decision of August 31, 2014 (2014 Decision)

Hong Kong’s Chief Executive is currently chosen by a 1,200-strong Election Committee, the composition of which is carefully designed to favour pro-business and pro-Beijing interests.  The “race” in which Leung himself was selected, although more competitive than previous “elections,” was heavily influenced by the Beijing Government and its representatives.  Although Article 45 of the Basic Law provided that the “ultimate aim” was for Hong Kong to elect its Chief Executive by universal suffrage, the deadline for universal suffrage has been repeatedly delayed by the NPCSC, which retains the power to interpret the Basic Law and to make decisions about the necessity of electoral reform.  The 2014 Decision ostensibly laid down the framework for universal suffrage in 2017, after months of consultation by the Hong Kong Government.  Instead, it provided the flashpoint for the student protests that in turn triggered the Umbrella Revolution. Under the 2014 Decision:

1)      The NPCSC confirmed that the Chief Executive owed responsibilities both to the Hong Kong Special Administrative Region and to the Beijing Government;
2)      As a result, any Chief Executive would be required to “love the country and love Hong Kong” – a phrase that, in practice, means that pro-democracy politicians will be barred from candidacy;
3)      Only 2 or 3 candidates would be permitted to run;
4)      Candidates would be chosen by a 1,200-strong Nominating Committee; and
5)      Support from at least half of the nominators would be required for candidacy.

The upshot of the 2014 Decision, and its various restrictions on nomination, is to ensure that only persons who Beijing deems politically palatable can run.  Lawrence Lessig aptly described the framework of the 2014 Decision as “Tweedism updated.”

The Joint Declaration

On its face, Article 3(4) of the Joint Declaration permits Hong Kong’s Chief Executive to be appointed after either elections, or consultations.  It contains – as Hong Kong’s current Chief Executive CY Leung wrote in the Financial Times – no specific prescriptions regarding the election or consultation process.  However, such an interpretation ignores basic principles of treaty interpretation.  The requirements under Article 31(1) of the Vienna Convention on the Law of Treaties (VCLT) – to which both China and the UK are parties – govern the interpretation of the Joint Declaration, yet have been routinely ignored by the Hong Kong and Beijing Governments. I argue that the Article 31(1) factors point towards an interpretation of the Joint Declaration that, contrary to Beijing’s assertions, imposes substantive requirements on how Hong Kong’s Chief Executive can be elected.

First, any interpretation of “elections” or “consultation” that permits a purely formal process in which the Hong Kong electorate “elects” a candidate pre-ordained by the Nominating Committee strips such terms of any reasonable meaning.  Second, the Joint Declaration was intended to guarantee that Hong Kong enjoyed a “high degree of autonomy,” except in foreign affairs and defence.  Giving the Hong Kong public a genuine choice in electing its Chief Executive can only be consistent with that purpose, without necessarily undermining Chinese sovereignty.  Third, to the extent that the Basic Law is acknowledged by both China and the UK to be subsequent practice in applying the Joint Declaration, there is agreement that elections should be by “universal suffrage.”  Fourth – and most importantly – the Joint Declaration also declares, in Chapter XIII of Annex I, that the provisions of the ICCPR applicable in Hong Kong shall remain in force after 1997.

The Applicability of ICCPR Article 25(b)

Under ICCPR Article 25(b), citizens enjoy the right “[to] vote and be elected at genuine periodic elections which shall be by universal and equal suffrage…” without unreasonable restrictions.  However, the applicability of Article 25(b) to Hong Kong has long been contentious.  When the UK acceded to the ICCPR on behalf of Hong Kong, it entered a reservation to Article 25(b).  Nonetheless, the Human Rights Committee has long taken the view that the reservation ceased to apply to elections for Hong Kong’s Legislative Council once an elected legislature was established.(Human Rights Comm., Concluding Observations of the Human Rights Comm (H.K.): U.K., U.N. Doc. CCPR/C/79/Add.57 (1995), ¶ 19.) The same reasoning would apply with equal force to Chief Executive elections; once the office of Chief Executive is filled through elections, such elections must comply with Article 25(b).  Curiously, the Committee’s Concluding Observations of 2013 in respect of Hong Kong appeared to accept that the reservation remained in force, without citing its previous Concluding Observations or explaining its departure from its previous position. (Human Rights Comm., Concluding Observations of the Human Rights Comm.: H.K., China, U.N. Doc. CCPR C/CHN-HKG/CO/3 (2013), ¶ 6.)

If one accepts that ICCPR Article 25(b) applies to Hong Kong’s Chief Executive elections, limits on the right to stand for election may not be subjected to unreasonable restrictions.  General Comment 25 adds that limits on the right to stand for election may only be based on “objective and reasonable criteria.”  The Human Rights Committee has consistently rejected political affiliation as an “objective and reasonable” criterion, (Chiiko Bwalya v Zambia, Commc’n No. 314/1988, U.N. Doc. CCPR/C/48/D/314/1988 (1993); Lukyanchik v Belarus, Commc’n No. 1391/05, U.N. Doc. CCPR/C/97/D/1392/2005; Sudalenko v Belarus, Commc’n No. 1354/05, U.N. Doc. CCPR/C/100/D/1354/2005.) including in a series of cases regarding arbitrary denial of registration to electoral candidates. (Lukyanchik and Sudalenko)  Indeed, by Beijing’s own admission, the pre-selection of candidates for political pliancy is not a criterion that could be legally defined.

Counter-Argument: The Source of Authority for the Basic Law

Shigong Qiang of Peking University has argued that Hong Kong’s “high level of autonomy” flows solely from authority from the Central Government, and that the Basic Law itself derives its authority solely from the PRC Constitution. (Shigong Qiang, 國際人權公約在香港:被誤讀的國際條約’ [The ICCPR in Hong Kong: The Misinterpreted International Treaty] Mingpao (HK, 25 Aug 2014).)  Yet this view does not appear to be universally shared even among Mainland academics.  The late Xiao Weiyun, one of the Mainland’s pre-eminent authorities on the Basic Law, conceded that the obligation to enact the Basic Law flowed from the Joint Declaration. (Xiao Weiyun, One Country Two Systems: An Account of the Drafting of the Basic Law 13(2001).  On Xiao see Jimmy Cheung, Basic Law ‘Guardian’ Dies at 78, S. China Morning Post (H.K.), Jul. 16, 2004.)  Nor does the text of the Basic Law support Qiang’s argument; the Preamble to the Basic Law states that it was enacted “to ensure the implementation of the basic policies of the [PRC] regarding Hong Kong.”  The “basic policies” referred to could only be those set out in Article 3 of, and Annex I to, the Joint Declaration.

Implications for the Electoral Reform Debate

If the Joint Declaration and ICCPR demand genuine universal suffrage in Hong Kong, then China has not merely a domestic law obligation to democratise Hong Kong, but an international law obligation.  This in turn empowers the UK, and potentially other parties to the ICCPR, to ensure China fulfils its obligations.  Writing in the Financial Times, Hong Kong’s last colonial governor Lord Patten of Barnes sought to remind Westminster that the United Kingdom had not merely a political and moral obligation to monitor developments in Hong Kong, but a legal obligation.  In light of ongoing developments, there is a compelling legal case for Whitehall to speak up in Hong Kong’s defence. Yet there are few signs that the United Kingdom’s long-standing policy of neglect will change.  In the wake of the 2014 Decision, the Foreign Office stated merely that the 2014 Decision would “disappoint” Hong Kong’s democrats, without any reference to the Joint Declaration.  Although Prime Minister David Cameron has now stated that he is “deeply concerned” about events in Hong Kong, it remains to be seen whether this will translate into a change in Foreign Office policy.

The Allure of Sovereigntism: U.S. Progressives and Libertarians Unite to Oppose Investor-State Arbitration

by Julian Ku

For decades, investor-state arbitration has enjoyed broad support in the U.S. (among those elites who know and care about such things).  While there has been some backlash against investor-state in developed countries such as Australia arising out of controversial cases brought against it, the U.S. has remained pretty solidly in favor of it.  But there are signs that the opposition to investor-state arbitration has sprouted among U.S. elites more influential than more traditional critics like Ralph Nader and Pat Buchanan.  And, interestingly, voices from both sides of the ideological spectrum are invoking “sovereigntist” arguments to bolster their positions.

First, Harold Meyerson of the Washington Post started the ball rolling with this post calling on center-left and progressives to oppose the inclusion of investor-state dispute settlement (or ISDS) in the proposed Transatlantic Free Trade Agreement.  Predictably, he derides ISDS as pro-corporate giveaways.  But he also rings the sovereigntist bell in favor of  protecting the jurisdiction of domestic courts against extra-jurisdictional tribunals (e.g. international arbitral tribunals).

What is more surprising is that Daniel Ikenson of the influential libertarian (“liberal” for you Europeans out there) thinktank the Cato Institute has joined the fray with a manifesto for why libertarians should also oppose ISDS (at least in trade agreements).  Some of his arguments are tactical (they undermine political support for trade agreements and aren’t all that helpful anyway), but some are also sovereigntist as well.

Though I firmly believe the U.S. economy is racked with superfluous and otherwise unnecessary regulations, I do believe that a successful foreign challenge of U.S. laws, regulations, or actions in a third-party arbitration tribunal (none has occurred, yet) would subvert accountability, democracy, and the rule of law.” 

It is certainly unusual to hear a libertarian analyst decry a legal mechanism that would give businesses a new avenue to challenge unfair laws and regulations.  But the sovereigntist bell is alluring.  Because Ikenson’s position seems to go somewhat against his policy preferences, I find Ikenson’s opposition to ISDS a little more compelling than Meyerson’s.

It is worth noting that some of the same arguments against investor-state can also be raised against other proposed forms of international adjudication (e.g. the International Climate Change Court, the International Anti-Corruption Court, international human rights courts, etc).  Similar arguments, in fact, are being used by the Conservative Party in the UK to withdraw or limit the role of the European Court of Human Rights over UK law.   I wonder whether progressives like Meyerson will be so excited about protecting domestic laws and courts from international oversight in those situations.  I somehow doubt it.

How to Solve the MV Limburg Mess: A Brief Exegesis on ‘Jurisdictional Facts’

by Jens David Ohlin

The Al Nashiri case before the Guantanamo military commission is currently stuck in a quagmire over the bombing of the oil tanker MV Limburg on Oct. 6, 2002, which Al Nashiri is alleged to be complicit in. Before trial, the defendant, Al Nashiri, moved to dismiss the charges related to the MV Limburg (which is just one of many charges in the case) on the grounds that the government does not have jurisdiction over the MV Limburg bombing since it was not part of the armed conflict between the United States and al-Qaeda. The MV Limburg was a French vessel (not American).

Instead of interpreting the motion as dealing with Congress’ jurisdiction to prescribe (as the defense appeared to suggest), the judge interpreted the motion as one attacking the jurisdiction of the military commission to hear the case because the attack was not connected to the hostilities between the U.S. and al-Qaeda. Since the government had not presented evidence that the attack was connected to those hostilities, the judge eventually dismissed the charges.

The U.S. government is appealing the dismissal of the MV Limburg charges, and it filed its appeal brief on September 29, 2014 to the U.S. Court of Military Commission Review. The government’s position is that the existence of hostilities (or a connection between the attack and the hostilities) is a question that goes to the merits, not jurisdiction, and therefore the government should be permitted to proceed to trial where it will demonstrate this connection. The connection between the hostilities and the attack is a merits question because the existence of hostilities is a predicate element of any war crime.  No war, no war crime.

So it is clearly a question that goes to the merits that should be decided at trial.  On this point the government is clearly correct. However, Al Nashiri is also correct that the same fact — the connection to the hostilities — is an essential ingredient of the court’s jurisdiction under the law of war. The military commission does not, and should not, have jurisdiction over crimes unrelated or unconnected to the underlying military conflict. So it is a jurisdictional question too. It is both at the same time. What the court really needs to figure out is how to treat a fact that is both jurisdictional and an element of the offense (merits) at the same time. Should it be proved at trial or does the party need to show the court, prior to trial, that it has jurisdiction over the case?

As should be clear by now, this basic problem is not unique to a military commission. It happens any time that the same factual element goes to jurisdiction and merits in the very same case. A court confronted with the twin nature of such a fact needs to determine whether to treat it as it does other jurisdictional elements (determine prior to trial) or as a merits question (determine at the conclusion of the trial).

The very best article on this subject, by Kevin Clermont, is simply titled Jurisdictional Fact, 91 Cornell L. Rev. 973 (2006). As Clermont convincingly explains, judges faced with this quandary should adopt a bifurcated approach with two standards of decision, one for the jurisdictional analysis and a second for the merits analysis:

All courts, then, should apply the prima facie standard of proof whenever a jurisdictional fact overlaps the merits. “Overlapping” here means that a factual finding in establishing … jurisdiction would also go toward proving the merits of the claim, with “merits” broadly meaning those issues that arise other than in determining the forum’s authority.

 

So, at the pre-trial phase, the court should require that the party asserting jurisdiction (which in Al Nashiri’s case would be the government prosecutors) should make a prima facie demonstration of the jurisdictional fact, and then at trial should be required to demonstrate the same fact under the higher standard, which in a civil case would be preponderance of the evidence or in a criminal case beyond a reasonable doubt.

Most importantly, this basic scheme applies regardless of whether one interprets Al Nashiri’s motion as going to personal jurisdiction or subject matter jurisdiction. It does not matter which one we use to classify the motion. If there is a fact that is both jurisdictional and merits, the government must demonstrate it pre-trial with a prima facie case, and then at trial under the regular standard for the merits decision.  Here is how Clermont explains the basic point:

From a morass of confused cases on a procedural point of significance, there emerges a startlingly clear rule that covers jurisdictional fact, and much more. On any factual element or legal question of forum authority, from subject-matter jurisdiction to venue whenever properly challenged, the proponent of forum authority must make the usual showing of more-likely-than-not, subject to this exception: if that element or question overlaps the merits of the claim, the proponent need provide only prima facie proof to establish the forum’s authority. Depending on the particular threshold issue’s importance, “prima facie” might mean any of the standards below the more-likely-than-not standard, namely, slightest possibility, reasonable possibility, substantial possibility, or equipoise. That lower standard will allow the judge to decide efficiently but definitively whether the forum has authority to decide the merits–doing so without entailing or foreclosing any decision on the merits, a decision to which a higher standard would apply.

Applying this basic scheme to Al Nashiri’s case, here is the correct result for the U.S. Court of Military Commission Review to consider. The government is indeed required to make a factual showing of the hostilities connection prior to trial, though it need not be burdened with demonstrating it under the standard applicable at the merits phase. Instead, the government was only required to make a prima facie showing of this jurisdictional fact. That being said, the government would be wrong if it claims that it bears no burden at all until trial — that clearly is an exaggeration. The task for the appeals court is to recognize the appropriate standard for such jurisdictional facts — the prima facie showing — and then decide if the government met that burden. If the lower judge’s assessment is correct that the government made no showing whatsoever on the hostilities question, then the appeals court should conclude that the charges were properly dismissed. If, on the other hand, the appeals court concludes that the government did make this prima facie case, and can cite to particular facts in the record that are sufficient to meet the prima facie showing, then the charges should be reinstated.

One final point. The government brief seems to assert that the government’s prima facie showing is already met because Al Nashiri never contested his status as an alien unprivileged enemy belligerent (AUEB). But this goes to personal jurisdiction, not subject matter jurisdiction. The government then goes on to use personal jurisdiction to bootstrap its way into subject matter jurisdiction under the theory that subject matter jurisdiction is automatically established once the status of the individual is established. This might be the way that it works for a court martial under the UCMJ (where the status of the individual service-member is sufficient to trigger the authority of the military court), but this conflation of personal and subject matter jurisdiction is not appropriate for military commission cases trying enemy belligerents.

Unlike domestic court martial proceedings which retain plenary authority to prosecute all UCMJ offenses against service-members, military commission cases are jurisdictionally limited to offenses arising from the conflict between the parties — the very conflict that grounds the genesis of the military commission under international law. Simply put, military commissions cannot use the existence of an armed conflict as a pretext to assert plenary authority over all criminal behavior committed by the individuals who lawfully fall under their personal jurisdiction.

Can a U.S. Judge Hold the Government of Argentina in “Contempt”?

by Julian Ku

In the latest round in the never-ending battle between Argentina and its holdout bondholders, a U.S. court has found Argentina to be in “contempt” for trying to circumvent that US court’s orders. Argentina has been outraged by such an order, arguing that a  state cannot be held in “contempt” because it is an affront to its sovereign dignity (with Argentina’s president denouncing the U.S. judge as “senile“).   Indeed, the Argentine government on Monday sent a very interesting letter to U.S. Secretary of State John Kerry setting out why it believes it cannot be subject to a “contempt” order in a domestic U.S. court.

The Argentine Republic notes that it is completely absurd for plaintiffs to argue that a local judge can hold a foreign State “in contempt”. This position can only arise from ignorance or a distorted view of the fundamental rules of international law currently in force and the peaceful coexistence of global order.

The principles on which international coexistence rests are reflected in the Charter of the United Nations. One of these principles refers to sovereign equality of all States and is expressly embodied in Article 2(1) of that Charter. This is a fundamental principle when it comes to determining what a State can or cannot do in relation to other States.

When any branch of government of a State denies “equal” status to another State, it not only manifestly violates international law but it also risks setting a precedent for the commission of similar violations of international law to its own detriment.

I think that Argentina’s argument that contempt orders and other judicial sanctions against it are violations of international law (even thought it has consented to that domestic jurisdiction) can draw some support from the statements of the U.S. government itself (which is quoted extensively in the letter).  The problem for Argentina is that the U.S. judicial system has not agreed with the U.S. government’s views on many of these questions.  So US law is no help to Argentina here (for the most part). And the U.S. government has almost no legal mechanisms to change the district court’s actions here, so the letter is largely for public consumption.

The harder question is whether (as Argentina argues) there is a generally accepted rule of international law that a court cannot hold a sovereign in contempt where that sovereign has consented to the jurisdiction of that court.  This is a tricky question and one worth thinking about further. I hope to post on that when I have had more time to digest it.

Guest Post: Kenyatta (Finally) Has to Go Back to The Hague

by Abel Knottnerus

[Abel S. Knottnerus is a PhD Researcher in International Law and International Relations at the University of Groningen.]

The case against Kenyan President Uhuru Kenyatta has reached a critical juncture. Almost six months ago, Trial Chamber V(B) adjourned the commencement of his trial until 7 October “for the specific purpose of providing an opportunity for compliance by the Kenyan Government with outstanding cooperation requests” (para. 2). Three weeks ago, however, the Prosecution submitted that the start of Kenyatta’s trial should again be adjourned, because the Kenyan government would still not have fulfilled its cooperation requirements. In response, the Chamber decided on 19 September that it will hold two status conferences on 7 and 8 October to discuss “the status of cooperation between the Prosecution and the Kenyan government” (para. 11).

These conferences will determine the future, if any, of Kenyatta’s trial. Yet, before this ‘do-or-die’ moment, the Chamber first had to decide on another sensitive matter, namely whether Kenyatta would have to be physically present in The Hague for the second of the two status conferences. On Tuesday, the Chamber ruled, by Majority (Judge Ozaki partially dissenting), that Kenyatta indeed has to travel to The Hague. Assuming that Kenyatta will not disobey this direct order, this will be the first time that a sitting Head of State will appear before the ICC.

Kenyatta’s excusal request and the Prosecution’s response

In the initial decision announcing the status conferences, the Trial Chamber stated that “given the critical juncture of the proceedings and the matters to be considered, the accused is required to be present at the status conference on 8 October” (para. 12). Despite this clear language, Kenyatta’s defence requested the Chamber last Thursday to excuse Kenyatta from attending. Based on Rule 134quater of the Rules of Procedure and Evidence the defence argued that Kenyatta has to fulfil extraordinary public duties at the highest national level on the scheduled date, because he is due to attend the Northern Corridor Infrastructure Summit in Kampala, Uganda. The defence added that this meeting was arranged prior to the Chamber’s decision to convene the status conference and that Kenyatta would therefore also not be able to attend by video-link.

In the alternative, the defence requested to reschedule the status conference and that on this new date Kenyatta would be allowed to be present through video-link in accordance with Rule 134bis. Instead of travelling to The Hague, a ‘skype session’ would enable Kenyatta “to perform his extraordinary public duties as President of Kenya to the greatest extent possible while causing the least inconvenience to the Court” (para. 13).

In response to the defence’s request, the Prosecution submitted on Monday that Rules 134bis and quater are not applicable at this stage of the proceedings because Kenyatta’s trial has not yet commenced. According to the Prosecution, the Trial Chamber would have the (inherent) discretion to reschedule the status conference as well as to permit Kenyatta to attend by video-link. While not opposing the former option, the Prosecution as well as the Legal Representative for Victims (LRV) argued that the defence had given no clear reasons for attendance by video-link on a later date, other than the distance that the accused would have to travel and his status as Head of State.

The (in)applicability of Rules 134quater and bis

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