Archive for
March, 2015

Research Bleg!

by Kevin Jon Heller

Does anyone out there in OJ-land know of a good book about the re-establishment of diplomatic relations? Ideally it would focus on the US (such as with Vietnam in 1995), but one discussing any country will do. I’m particularly interested in a book that describes the nuts and bolts of re-engagement: how the decision was made, how they selected the location of the new embassy, what the Ambassador and his staff did when they first arrived in-country, etc.

Any suggestions would be most appreciated…

Israel’s “Defenders” Show Their True Colors Regarding Academic Freedom

by Kevin Jon Heller

From April 17-19, the University of Southampton is scheduled to host a conference entitled “International Law and the State of Israel: Legitimacy, Responsibility and Exceptionalism.” As the title indicates, the conference was always going to be controversial. (Full disclosure: I was originally scheduled to present at the conference, but pulled out a couple of weeks ago because I simply didn’t have time to prepare anything.) Indeed, the conference webpage contains the following statement by the organisers:

The conference “International Law and the State of Israel: Legitimacy, Responsibility, and Exceptionalism” at the University of Southampton on April 17-19th will engage controversial questions concerning the manner of Israel’s foundation and its nature, including ongoing forced displacements of Palestinians and associated injustices. The conference will examine how international law could be deployed, expanded, even re-imagined, in order to achieve regional peace and reconciliation based on justice.  The conference is intended to broaden debates and legal arguments concerning historic Palestine and the nature, role, and potentialities of international law itself.

Participants will be a part of a multidisciplinary debate reflecting diverse perspectives, and thus genuine disagreements, on the central themes of the conference. Diligent efforts, including face-to-face meetings with leading intellectuals in Israel, were made to ensure the widest range of opinions possible. Those who chose to abstain, however, cannot derail the legitimate, if challenging, academic discussion the conference will inspire.

The conference organizers are grateful to the University of Southampton for ensuring academic freedom within the law and for taking steps to secure freedom of speech within the law. The conference organizers accept that the granting of permission for this event does not imply support or endorsement by the University of any of the opinions to be expressed at the conference.

The final paragraph is more than a little ironic — because earlier today the University of Southampton caved to pressure from self-appointed right-wing “defenders” of Israel and withdrew its permission for the conference. To be sure, the University did not have the integrity to admit the real reason why it was withdrawing permission. Instead, it fell back on that time-worn excuse, “security.” (Read: Israel’s right-wing “defenders” promised to disrupt the conference if the University didn’t cancel it.) The organizers’ statement in response makes clear just how pathetic that excuse really is:

A number of risks have been identified by the police but it is very clear from the Police’s report that they are more than capable of policing the conference and ensuring the safety of university staff, speakers, delegates, students and property. However, instead of accepting this at face value the University decided to focus on the risks identified by the Police and ignore their statement about their ability to police the event – we were told the Police will never say in writing they are not able to police an event, in other words the University had doubts about the Police’s ability to do their job of upholding the law! The university claims that the Police are not able or unwilling to become too involved because the University is ‘private property’, which we find astonishing. The University is a public space, it was established by a Royal Charter and it has public roles and duties including upholding freedom of speech and to that extent it should be able to resort to police assistance in order to curb security risks to enable it to fulfil its legal obligation to uphold freedom of speech. If this is not done, if commitment to safety is not undertaken by the police, freedom of speech becomes an idle worthless notion. At no point were we given an indication that the University has indeed allowed itself the time to seek viable police assistance to supplement its own resources. Additionally, and unconvincingly, the University claims that it is now too late to put proper security arrangements in place. We do not accept that in any way as there are still 18 days left before the conference.

It will be a great shame if the conference does not go ahead as planned, whether at Southampton or at another venue. But the University’s decision does have a silver lining: it makes clear the contempt that Israel’s right-wing “defenders” have for academic freedom. They love to invoke academic freedom in the context of academic BDS, where the freedom in question is that of Israeli academics. (Regular readers know that I oppose academic BDS, and I voted against it recently at SOAS.) But when academic freedom means permitting criticism of Israel — well, then censorship is just fine. Consider the following…

Symposium on Palestine and the ICC at Justice in Conflict

by Kevin Jon Heller

Just in time for the activation of Palestine’s membership in the ICC, over the next few days Mark Kersten’s blog, Justice in Conflict, will be featuring posts by all of the people who participated in last week’s roundtable at the LSE — Mark, me, Kirsten Ainley, Dov Jacobs, Chantal Meloni, Leslie Vinjamuri, and Michael Kearney. Mark’s introductory post can be found here. I will post a link to a podcast of the LSE event as soon as it’s available. My contribution to the symposium should be up tomorrow or the next day.

Also, a hearty congratulations to Dr. Kersten, who has just been awarded a two-year SSHRC postdoc at the University of Toronto! London will miss him.

Weekly News Wrap: Monday, March 30, 2015

by Jessica Dorsey

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


  • Kenya’s government said it was “shocked and concerned” over the latest travel warnings issued by the UK and others and said security conditions in the east African country were improving.
  • Islamist Boko Haram insurgents launched two deadly attacks on voters in northeast Nigeria on Saturday, police and a security source said, killing six people in an election in which insecurity is a major issue.
  • In Sudan, Reuters covers an unlikely path to jihad for students.
  • The number of people in northern Cameroon who have fled their homes fearing the violence in neighboring Nigeria and cross-border raids by Islamist sect Boko Haram doubled in March to 117,000, a United Nations survey showed.

Middle East and Northern Africa






Events and Announcements: March 29, 2015

by An Hertogen

Calls for Papers

  • Opinio Juris’ own Peter Spiro will be the keynote speaker at the Skilled Migration Conference on Unravelling the Talent Tale: Skilled Migration Policies between National Images, Membership Bonds and Economic Priorities on September 15, 2015 at Sheffield University School of Law. The organizers are calling for paper considering a range of questions targeting the interrelation between attracting skilled migrants and redefining community boundaries and membership bonds. Abstracts of no more than 500 words are due by April 30, 2015. More information is available here.
  • The Utrecht Journal of International and European Law is issuing a Call for Papers on ‘General Issues’ within International and European law. The Board of Editors invites submissions addressing any aspect of International and/or European law. All types of manuscripts, from socio-legal to legal technical to comparative, will be considered for publication. 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 (See here for full details). Utrecht Journal has a word limit of 15,000 words including footnotes. For further information please consult the website or e-mail. Deadline for submissions is April 30, 2015.
  • On June 26, 2015, a conference will investigate the relationship between hybrid warfare and minority rights from three perspectives: 1. Protection of Minority Rights and Hybrid Warfare; 2. Freedom of Expression in the Media and Cyberspace; 3. Hybrid Warfare and the Threshold for Armed Attack and State Responsibility. The organizers welcome abstracts for papers of no more than one page from both established researchers and early career academics. Please send your proposals to Dr. James Summers. The deadline for abstracts is May 1, 2015. Further details can be found here.
  • The Journal of International Peace and Organisation (“Die Friedens-Warte”) is calling for papers for its upcoming issue of volume 90 (2015). The Journal adapts an interdisciplinary approach to all matters relating to peace research, with international law and political science as lead disciplines. All submissions are assessed through double-blind peer review by two experts in the field. The topic of the upcoming issue’s focus section is ‘Intelligence! – Conflict and Conflict Avoidance through Information Gathering’. Abstracts may be submitted until 4 May 2015. For more detailed information, please see the Call for Papers here or the Journal’s website.
  • The Journal on the Use of Force and International Law is now calling for submissions for the next issue 2(2). The deadline is June 30, 2015. More information can be found here.


  • The Centre for International and Public Law (CIPL), Brunel University London announces its annual guest lecture followed by an in-depth discussion, entitled “The Economic Crisis and The Failure of Human Rights”, to be held on Tuesday 21 April 2015, from 2:00 pm to 5:00 pm in the Moot Court, Elliott Jacques Building, Brunel Law School, Brunel University London, Uxbridge, UB8 3PH. Guest Speaker: Professor Aoife Nolan (University of Nottingham); Chair: Professor Manisuli Sssenyonjo (Brunel University London). A reception will follow at 5.00 pm by serving free refreshment. More information is here.
  • The Faculty of Law, University of Ljubljana is organizing its second conference in a series of biannual international interdisciplinary scientific conferences entitled Responsibility to Protect in Theory and Practice Conference on April 23-24, 2015. The aim of the conference is to provide an opportunity for scholars and practitioners from around the word to engage in an interdisciplinary academic debate on the theoretical and practical implications of the concept of Responsibility to Protect (R2P). The program is set up to present both the theoretical issues related to the understanding of the concept, its implementation in crisis situations and its importance in relation to conflict prevention and rebuilding, as well as practical issues by presenting case studies of the crisis situations with the potential for R2P consideration.  Participants of the conference will receive also a book entitled Responsibility to Protect: Where Do We Stand Ten Years After? Forty presenters at the conference include distinguished internationally renowned experts from around the world, among them Jennifer Welsh, Ruth Wedgwood, Judge Awn Shawkat Al-Khasawneh, Vladimir Kotlyar, Aiden Hehir, James Pattison, Enzo, M. Le Fevre Cervini and William R. Pace. A special R2P Song by a Slovenian rap duo Murat&Jose will be performed live in English at the conference gala dinner. The keynote speaker at the conference gala dinner will be Professor Dr Danilo Türk, Former President of the Republic of Slovenia. For more information about the conference and to register, please visit the conference web page.
  • The Academy on Human Rights and Humanitarian Law is pleased to announce that the Program of Advanced Studies on Human Rights and Humanitarian Law is now accepting applicationsThe program will take place from May 26 to June 12, 2015. This Program offers 18 courses in English and Spanish lectured by over 39 scholars of relevance in the field of Human Rights and Humanitarian Law and gathers more than 150 participants from more than 25 different countries and with different levels of professional experience. The Academy on Human Rights and Humanitarian Law provides through this Program the unique opportunity to learn and interact with judges of the International Criminal Court (ICC), the International Court of Justice (ICJ), Special Rapporteurs of United Nations, members of the Inter-American Commission on Human Rights and professors from all over the world. The Program is offered in three categories which include the modality of Certificate of Attendance for lawyers, law students and HR professionals of any country, ABA Credits for U.S. students and finally, the Diploma Course that is offered to a select group of 35 law professionals who fulfill the admission requirements. The application form for this program will be available here. For more information please contact the  Academy.

Our previous events and announcements post 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: March 15-26, 2015

by Jessica Dorsey

In the last fortnight at Opinio Juris, we saw Julian critique M. Cherif Bassiouni on his take on the Amanda Knox case in Italy, arguing that she would indeed be extraditable to the US.

Peter analyzed whether the Republican presidential candidate Ted Cruz is in fact a natural-born citizen (spoiler alert: he is).

Kevin posted his thoughts on the two-year anniversary of the death of Chinua Achebe and a response to a Just Security post from Blank, Corn and Jensen on the assessment of proportionality and finally a response to Bartels (also posting on Just Security) on perfidy.

We received a guest post from Sonya Sceats on China as a shaper of international law, in conjunction with a series of meetings at Chatham House. And finally, An posted on events here, I did here, and I added two weekly news wraps (here and here).

Thanks to our guest contributors and to you for following us on Opinio Juris. Have a great weekend!

M. Cherif Bassiouni Weighs In on the Amanda Knox Extradition, and Gets It Wrong

by Julian Ku

I have been feeling a little guilty for blogging about the Amanda Knox case since it is more of a People Magazine topic than an Opinio Juris one.  But just today, I realized that even someone as respected in the international law field as M. Cherif Bassiouni has opined on her extraditability in this OUP blog post from last April.  So maybe it’s OK after all, especially since Bassiouni’s view that she is not extraditable is (in my view) flatly wrong.

Bassiouni, a giant in the field of international criminal law and the author of the leading treatise on the international law of extradition, argues that Amanda Knox is not extraditable to Italy because of the admittedly unusual Italian criminal procedure that seems to subject defendants to convictions, acquittals, and then conviction again in violation of the rule of ne bis in idem (double jeopardy).

As I have explained, no US court has held that the double jeopardy protection of the Fifth Amendment would prevent an extradition because no U.S. court has applied that Fifth Amendment protection to actions by a foreign government.  In other words, no U.S. has held that a U.S. citizen can invoke the Fifth Amendment against the prosecution of a foreign government.  It is possible a court might do so, but there has been no signs of that so far.

But what really bothers me is that Bassiouni makes the same mistake that many other (far lesser in stature) legal commentators have made when he suggests that Article VI of the US-Italy Extradition treaty imposes a double-jeopardy requirement on the Italian government.

The 1983 U.S.–Italy Extradition Treaty states in article VI that extradition is not available in cases where the requested person has been acquitted or convicted of the “same acts” (in the English text) and the “same facts” (in the Italian text).

With all due respect to Professor Bassiouni, this is not quite right. I point him and others to my first post on this subject and I re-do the discussion below.   Here is Article VI:

Non Bis in Idem

Extradition shall not be granted when the person sought has been convicted, acquitted or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested.

(Emphasis added.)

I don’t think it is possible to read this language as imposing a non bis in idem requirement on Italy, since Italy is not the “Requested Party” in the Amanda Knox case.  The only way Amanda Knox could invoke Article VI is if she has been “convicted, acquitted or pardoned,or has served the sentence imposed” by the United States, which is the “Requested Party.”  But Knox has not been charged or punished for this crime in the United States, so she can’t invoke Article VI.

As Bassiouni points out, the complexity of Italy’s criminal procedure could possibly violate the prohibition on non bis in idem contained in the European Convention on Human Rights.  I don’t know enough about Italy’s criminal procedure or the ECHR’s jurisprudence in this area to know if he is right, but I do know that this issue is not something that would be considered in the “extraditability” analysis by a U.S. court.  Knox could (and probably has) raised this argument in Italian courts, or directly before the ECHR. But it should not affect her extraditability.

Because of Bassiouni’s stature, his blogpost will be (and already has been) repeated by media reports for the proposition that Knox has a credible double-jeopardy defense to extradition.  But although they are right to cite Bassiouni as a leading authority on international extradition, he’s wrong on this one.

So How Do We Assess Proportionality? (A Response to Blank, Corn, and Jensen) (UPDATED)

by Kevin Jon Heller

Just Security published a post by Laurie Blank, Geoffrey Corn, and Eric Jensen yesterday criticizing two surveys that are interested in how laypeople think about IHL’s principle of proportionality. Much of what the authors say is absolutely correct, particularly about the need to recognize that assessing ex post the ex ante decision-making process of military commanders is fraught with difficulty and likely to both overemphasize actual civilian casualties and underemphasize anticipated military advantage. But the post is still problematic, particularly the following claims:

Second, the surveys exacerbate what is perhaps the most dangerous misperception and distortion of this vital regulatory principle: that you, or I, or anyone can accurately and meaningfully assess the proportionality of an attack after the fact and without full knowledge of the circumstances at the time of the attack. Proportionality necessitates a prospective analysis that cannot be assessed in hindsight by looking solely at the effects of an attack (or the hypothetical effects of a hypothetical attack). The language of the proportionality rule refers to “expected” civilian casualties and “anticipated” military advantage — the very choice of words shows that the analysis must be taken in a prospective manner from the viewpoint of the commander at the time of the attack. Credible compliance assessment therefore requires considering the situation through the lens of the decision-making commander, and then asking whether the attack judgment was reasonable under the circumstances.


Ultimately, these surveys are based on a flawed assumption: that “public perception” is the ultimate touchstone for compliance with the proportionality rule; a touchstone that should be substituted for the expert, hard-earned judgment of military commanders who bear the moral, strategic, tactical and legal consequences of each and every decision they make in combat. On that basis alone, it is the surveys that are disproportionate.

I can’t speak to one of the surveys, because the authors don’t provide any information about it. But I am aware of (and have completed) the survey they do link to, which is conducted by Janina Dill, an excellent young Oxford lecturer who is the Associate Director of the Oxford Institute for Ethics, Law and Armed Conflict. The authors caricature Dill’s survey when they claim that it is based on the “flawed assumption” that “public perception” is “the ultimate touchstone for compliance with the proportionality rule.” Dill does not suggest that the legality of a particular attack should be determined by public perception of whether it was proportionate; she is simply interested in how non-military people think about proportionality. Like the authors, I don’t believe Dill’s questions capture the complexity of the military commander’s task. But neither does Dill. That is not the point of the survey.

Dill, however, is more than capable of defending herself. I am more interested in the first paragraph quoted above, because the authors come perilously close therein to claiming that it is per se illegitimate for anyone — or at least individuals who are not soldiers themselves — to second-guess the targeting decisions of military commanders. I suppose they leave themselves a tiny escape from that position by implying (obliquely) that “you, or I, or anyone” could assess ex post a military commander’s ex ante proportionality calculation as long as we had “full knowledge of the circumstances at the time of the attack.” But the authors make no attempt whatsoever to explain how the decision-makers involved in any ex post “compliance assessment” could ever take into account everything the military commander knew about the circumstances of the attack — from “the enemy’s center of gravity and the relationship of the nominated target to that consideration” to “the exigencies of the tactical situation” to “the weaponeering process, including the choice of weapons to deploy and their known or anticipated blast radius or other consequences.” Some information about the objective circumstances of the attack may be available in written reports and through the testimony of the military commander’s superiors and subordinates. But those objective circumstances are only part of the story, because IHL proportionality requires (as the authors rightly note) assessing the reasonableness of the attack “through the lens” of the commander herself — what she actually knew about the objective circumstances of the attack. And that information will be located solely in the mind of the military commander. Perhaps some commanders are so honest and so mentally disciplined that they will provide a court-martial or international tribunal with an accurate assessment of what went through their mind before the attack. But most commanders faced with discipline or prosecution for a possibly disproportionate attack will either lie about their proportionality calculation or unconsciously rewrite that calculation after the fact to justify killing innocent civilians.

In most cases, therefore, the decision-makers involved in a compliance assessment will have no choice but to rely on circumstantial evidence — including, yes, an attack’s actual consequences — to infer what went through the mind of a military commander prior to launching an attack. Such inferences will always be, for all the reasons the authors note, complex, fraught with difficulty, and prone to error. But unless we are going to simply defer to “the expert, hard-earned judgment of military commanders who bear the moral, strategic, tactical and legal consequences of each and every decision they make in combat,” we have no choice but to ask people to draw them. I doubt that any of the authors think that uncritical deference is appropriate; more likely, they think that although compliance assessment is necessary, no civilian should ever be permitted to sit in judgment of a soldier. If so — or if they think that civilian assessment is possible in the right system — the authors need to do more than just complain about how difficult it is to be a military commander and dismiss as irrelevant how civilians think about fundamental principles of IHL. They need to tell us what a properly-designed system of compliance assessment would look like.

UPDATE: Janina Dill has posted her own response at Just Security. It’s excellent; interested readers should definitely check it out.

Responding to Rogier Bartels About Perfidy at Just Security

by Kevin Jon Heller

My friend Rogier Bartels published two excellent posts at Just Security over the past few days (here and here) in which he argues that it is inherently perfidious to launch an attack from a military object disguised as a civilian object. Just Security has just posted my lengthy response. Here is how I conclude the post:

At the risk of sounding like an armchair psychologist, I’d like to suggest an explanation for why an excellent scholar like Rogier adopts a theory of perfidy that, in my view, cannot be correct. The problem, I think, is the nature of the attack that gave rise to our lively debate: a bomb placed in a privately-owned car in the middle of a generally peaceful city. Such an attack simply doesn’t seem fair; of course a “combatant” — even a high-ranking member of Hezbollah — is entitled to feel safe walking by a car on “a quiet nighttime street in Damascus after dinner at a nearby restaurant,” as the Washington Post put it. Indeed, like Rogier, I am skeptical that IHL even applied to the bombing.

But just as hard cases make bad law, unusual situations generate problematic rules. Once we try to apply Rogier’s theory of perfidy to the “normal” combat situation, its plausibility falls apart. Although the same military/civilian distinctions apply, those distinctions take on a very different sheen during street-by-street, house-by-house fighting in a city virtually destroyed by armed conflict. You expect to be able to walk by a Mercedes in a Damascus suburb without being blown up, even if you are a soldier; but if you are a soldier in downtown Fallujah, the last thing you are going to do is walk casually past that burned out, overturned Mazda sitting in the middle of the city’s main road. Yet that Mazda is no less a civilian object than the Mercedes, and as long as IHL applies there is no legal difference between planting a bomb in the Mazda and planting a bomb in the Mercedes. Either both car bombs are perfidious or neither of them is. And it is very difficult to argue that planting a bomb in a burned-out, overturned Mazda in downtown Fallujah — or placing an ambush behind it, or using it for cover, or blending into it with camouflage, or placing a landmine near it — is an act of perfidy.

I share Rogier’s concern with the Israel/US operation that killed the Hezbollah leader, and I understand his unease — from a civilian protection standpoint — with many of the kinds of attacks I’ve discussed in this post. Any proposal to expand the definition of perfidy, however, must acknowledge the (ugly) reality of combat, particularly in urban areas. The general distinction between perfidy and ruses of war is a sensible one, even if we can — and should — debate precisely where the line between the two is drawn.

I hope readers will wander over to Just Security and read all three posts — as well as the original discussion that led to them.

Weekly News Wrap: Tuesday, March 24, 2015

by Jessica Dorsey

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


Middle East and Northern Africa






RIP, Chinua Achebe (Updated)

by Kevin Jon Heller

I just learned — much belatedly — that Chinua Achebe, the great Nigerian novelist, died two years ago today at 82. Here is a snippet from his 2013 obituary in the New York Times:

Nadine Gordimer, the South African novelist and Nobel laureate, hailed Mr. Achebe in a review in The New York Times in 1988, calling him “a novelist who makes you laugh and then catch your breath in horror — a writer who has no illusions but is not disillusioned.”

Mr. Achebe’s political thinking evolved from blaming colonial rule for Africa’s woes to frank criticism of African rulers and the African citizens who tolerated their corruption and violence. Indeed, it was Nigeria’s civil war in the 1960s and then its military dictatorship in the 1980s and ‘90s that forced Mr. Achebe abroad.

In his writing and teaching Mr. Achebe sought to reclaim the continent from Western literature, which he felt had reduced it to an alien, barbaric and frightening land devoid of its own art and culture. He took particular exception to”Heart of Darkness,”the novel byJoseph Conrad, whom he thought “a thoroughgoing racist.”

Conrad relegated “Africa to the role of props for the breakup of one petty European mind,” Mr. Achebe argued in his essay “An Image of Africa.”

“I grew up among very eloquent elders,” he said in an interview with The Associated Press in 2008. “In the village, or even in the church, which my father made sure we attended, there were eloquent speakers.” That eloquence was not reflected in Western books about Africa, he said, but he understood the challenge in trying to rectify the portrayal.

“You know that it’s going to be a battle to turn it around, to say to people, ‘That’s not the way my people respond in this situation, by unintelligible grunts, and so on; they would speak,’ ” Mr. Achebe said. “And it is that speech that I knew I wanted to be written down.”

Chinua’s passing fills me with great sadness, because I had the honour of getting to know him quite well in the late 1980s — just before the car accident that left him paralyzed — when I was a graduate student at the New School for Social Research. He was a dear friend of the anthropologist Stanley Diamond, for whom I did research and whose journal, Dialectical Anthropology, I edited. I will long treasure the memories of Chinua’s kindness and warmth. He would always go out of his way to include me in conversations, and to ask me — a lowly graduate student, barely 21 — what I thought about things. And his terrible accident did not dim his spirit in the slightest; he was just as kind and warm the first time I saw him after the accident, when he was still recovering.

Chinua was also, needless to say, a remarkable novelist. I just wish he had written more — his two-decade-long writers block, which he attributed to the trauma of the Nigerian civil war (as the obituary notes), cheated us all out of so many great novels that will now never be written. I plan to re-read “Things Fall Apart” in his honour as soon as I can. It remains one of the great novels written by any writer — not just by an African one. Chinua’s fiction, though so inextricably tied to his country and to his continent, always transcended the limits of geography. I still get angry when I think about Saul Bellow’s profoundly racist comment concerning the supposed non-existence of great African literature: “When the Zulus produce a Tolstoy, we will read him.” I don’t know about the Zulus, but the Ibo certainly produced one. His name was Chinua Achebe.

Requiescat in pace, Chinua. You will be missed — and remembered.

UPDATE: I have updated the post to reflect that I only found out today about Chinua’s death. I hope these thoughts are better late than never.

Is Ted Cruz a “Natural Born Citizen”?

by Peter Spiro

cruz imageShort answer: yes. Ted Cruz is constitutionally eligible to run for President. As he moves to announce his candidacy tomorrow, the question is sure to flare up again. As most will know, Cruz was born in Canada. He had U.S. citizenship at birth through his mother and the forerunner to section 301(g) of the Immigration and Nationality Act. He also had Canadian citizenship until he formally renounced it only last year.

The constitutional terrain is covered in this 2013 post and an essay of mine in the online Michigan Law Review on the question as presented in the context of John McCain’s Canal Zone birth. This is a terrific case study for demonstrating constitutional evolutions outside the courts. No court will ever touch the question at the same time that particular cases show us where the law is.

One recent addition to the mix: Neil Katyal and Paul Clement have this piece on the Harvard Law Review Forum arguing that Ted Cruz qualifies as “natural born”. If Katyal and Clement say he is natural born, then he is natural born, merits aside. Bipartisan pronouncements from legal policy elites become a source of the law. The Katyal-Clement offering echoes a similar effort by Larry Tribe and Ted Olson with respect to McCain’s eligibility, which was also the subject of a consensus U.S. Senate resolution.

Who can’t love that the question is being raised? Birthers who have challenged Barack Obama’s constitutional eligibility (on the basis of a fictitious birth in Kenya or a lame claim that he is a dual citizen) will have to eat their words now that they have a candidate whose foreign birth/dual citizenship is documented fact. But those ironies shouldn’t distort the answer. There are lots of reasons to oppose a Ted Cruz candidacy, but his citizenship status isn’t one of them.

Events and Announcements: March 22, 2015

by Jessica Dorsey

Calls for Papers

  • The Columbia Human Rights Law Review (HRLR), in collaboration with the Columbia Law School Human Rights Institute (HRI), is publishing a symposium edition about the relationship between the U.S. ‘War on Terror’, sometimes referred to as the ‘Forever War,’ and human rights law. We invite proposals on topics of your own framing consistent with the symposium’s general purpose of advancing scholarship and critical analysis regarding human rights law and its relationship with international humanitarian law and jus ad bellum during and after the ‘Forever War.’ The review is seeking articles that examine both the short-term and long-term challenges that arise from the relationship between the ‘Forever War’ and human rights law, and is particularly interested in papers that seek to strengthen the role of human rights law in institutions and policy decisions worldwide. Papers are invited from both scholars and practitioners, and submissions are encouraged from outside the United States. Individuals interested in publishing should submit a prospectus summary of no more than 1000 words describing the paper’s proposed topic, themes, and research methodologies by no later than April 20, 2015.  HRLR and HRI will select 4–6 papers for presumption of publication. Please submit abstracts to under the subject line “HRLR Symposium Abstract.”  Visit the website for more information and suggestions for possible themes and issues.
  • Call for Submissions Volume 4, Issue 2 (October 2015) for a Special Issue on Theoretical Approaches to International Law. The UCL Journal of Law and Jurisprudence (UCLJLJ) is a law journal run by postgraduate students of the UCL Faculty of Laws. All submissions are assessed through double blind peer-review. Starting in 2015, the Journal will appear twice a year and will be available open access. The Editorial Board is pleased to call for submissions for the second issue of 2015. The Board welcomes submissions engaging with the issue’s general theme “Theoretical Approaches to International Law”. The topic is broadly conceived and leaves room in particular for any area of international law to be considered and for a wide range of theoretical traditions and approaches. We accept articles of between 8,000-12,000 words, case notes of 6’000-8’000 words and book reviews of 1’000-2’000 words in length. All submissions must comply with the Oxford University Standard for Citation of Legal Authorities (OSCOLA). Contributions that have already been published or that are under consideration for publication in other journals will not be considered. The deadline for submissions is 30 April 2015. Manuscripts must be uploaded via the submissions section on our website. For further information and guidelines for authors please visit our website.


  • The Academy of European Law summer courses in Human Rights Law and European Union law, given by leading authorities from the worlds of practice and academia, provide programmes for researchers and legal practitioners.This year’s Human Rights Law Course will be held on 15 – 26 June. It comprises a General Course on ‘The Future of Human Rights Fact-finding’ by Philip Alston (New York University Law School) and a series of specialized courses on the topic of ‘The Futures of Human Rights’ by leading scholars. The Law of the European Union Course will be held on 29 June – 10 July. It features a General Course on ‘What’s Left of the Law of Integration?’ by Julio Baquero Cruz (Member of the Legal Service of the European Commission) and a series of specialized courses on the topic of  ‘Harmonization in a Changing Legal Context’ by leading scholars and practitioners in the Law of the European Union. The two-week courses are held at the European University Institute in Florence. Applications close on 8 April. For further information see the Academy’s website at .

Our previous events and announcements post 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. 

Guest Post: China As a Shaper of International Law?

by Sonya Sceats

[Sonya Sceats is Associate Fellow in the International Law Programme at Chatham House where she leads a project on the implications of China’s rise for the international human rights system. Follow @SonyaSceats and @CHIntLaw]

China punches below its weight in the development of international law, despite its growing international power and the participation of Chinese representatives and experts in various international law-making bodies. Judging by recent statements of intent from the Chinese government, this might be about to change.

As Julian Ku indicated in a recent post, China is ramping up portrayal of itself as a staunch defender of international law. China has long presented itself as an upholder of the UN Charter, especially on questions related to use of force, but in the signed article cited by Julian, Chinese Foreign Minister Wang Yi sought to broaden the point.

It is right to view this rhetoric as an attempt by China, as an ascending but conservative power, to harness law to its longstanding political agenda to constrain (US) hegemonic power and promote state equality. But the Foreign Minister’s article should also be seen as one of the opening moves in China’s new play to expand its influence on international law.

The key lies in a directive buried deeply in the outcome document from the 4th Plenary Session of the 18th Central Committee of the Chinese Communist Party, known colloquially as the Rule of Law plenum. The plenum concluded on 23 October 2014, the day before the Foreign Minister released his article. According to the document, China must:

Vigorously participate in the formulation of international norms, promote the handling of foreign-related economic and social affairs according to the law, strengthen our country’s discourse power and influence in international legal affairs, use legal methods to safeguard our country’s sovereignty, security and development interests.

China, therefore, wishes to transform itself from a norm-taker to a norm-shaper internationally.

Elsewhere I have argued that China’s concerted push to mould global norms on the internet should be understood as a vanguard expression of these ambitions. This analysis drew on discussions within a global expert network we launched last year as a means of engaging with the growing community of Chinese international lawyers writing, thinking and teaching about international human rights and related areas of international law.

To date, we have held two roundtable meetings for this network, the first in London and the second in Beijing. Both meetings were held in collaboration with China University of  Political Science and Law (CUPL), one of China’s leading law schools and probably the only university in the world with an entire faculty of international law.

Chatham House’s work on these issues dates back to 2012 when we launched a project on China and the international human rights system. This work culminated in a research report which has become a key resource for diplomats, human rights advocates and others (including inside China) seeking to understand China’s behaviour in the international human rights system and engage with and influence China on these issues.

In the course of this research, we visited China to see if Chinese experts would be willing to share views on these matters. We learned that there were lively debates on these issues in China and that international lawyers working in this area were eager for more structured opportunities to engage with their peers outside China. Our network aims to help meet this need.

Professor Sarah Cleveland, Columbia Law School, and Professor Ling Yan, China University of Political Science and Law, at the first meeting of the International Law Programme’s global experts network at Chatham House in April 2014. Photo used with permission from Chatham House.

Professor Sarah Cleveland, Columbia Law School, and Professor Ling Yan, China University of Political Science and Law, at the first meeting of the International Law Programme’s global experts network at Chatham House in April 2014. Photo used with permission from Chatham House.

At our first meeting at Chatham House in London, Chinese experts spoke of the need for their country to strengthen its contribution to the field of international law. It is clear from the Rule of Law plenum outcome document that the Chinese government now shares this aspiration. The government also pledged in the document to:

Establish foreign-oriented rule of law talent teams who thoroughly understand international legal rules and are good at dealing with foreign-oriented legal affairs.

Of course, China’s desire to exert more influence on international law will not automatically lead to greater influence, but an investment in home-grown capabilities is a first step. It will be interesting to see how these ‘talent teams’ develop, how active they will be in international legal forums, and whether there will be two-way traffic between these experts and their government in relation to China’s positions on international rules and participation in international institutions and dispute resolution mechanisms.

Our second meeting at CUPL, just three weeks after the plenum, was an early opportunity to explore the potential implications of China’s plans, now explicit, to increase its impact on international law. Our discussions traversed a range of public international law areas relating to individual rights, including international human rights, criminal and humanitarian law, and we were pleased to have OJ’s Kevin Jon Heller among our participants.

Some of the insights generated from these discussions to date include:

  • While most commentary of the Rule of Law plenum outside China was highly sceptical, many Chinese legal academics regard it as a progressive development – strong statements about the authority of the constitution are seen as particularly significant;
  • Chinese experts report signs that China may be moving beyond the human rights hierarchy it has traditionally promoted in which socio-economic rights are favoured over civil and political rights;
  • Most Chinese international law scholars we have engaged with consider that, despite the delays, China is sincere in its stated commitment to ratifying the International Covenant on Civil and Political Rights;
  • Even Chinese members of the network with strong internationalist leanings object to the confrontational attitude towards China in bodies like the UN Human Rights Council;
  • China’s commitment in principle to the concept of the Responsibility to Protect seems to have survived the experience of Libya and some Chinese experts consider that this is an area where China’s arch-sovereigntist approach could shift in the future; and
  • Many Chinese international lawyers were deeply disappointed by China’s decision not to sign the Rome Statute of the International Criminal Court and international criminal law is a fast developing sub-discipline of international law in China.

To find out more, read the summaries of our roundtable meetings prepared in accordance with the Chatham House Rule:

Chinese Approaches to Public International Law and the Rights of Individuals

Chinese Approaches to Public International Law and the Rights of Individuals – Part Two

Weekly News Wrap: Monday, March 16, 2015

by Jessica Dorsey

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


  • The conviction of ex-president Laurent Gbagbo’s allies for their role in the violence that followed the 2011 election in Ivory Coast has deepened a rift in his party that risks radicalizing hardliners ahead of polls this year in the world’s top cocoa grower, analysts say.
  • Somali Islamist militants killed at least one man and wounded three others in the northern Kenyan town of Mandera on Sunday, the second deadly attack in the area in three days, an official and the Islamist group said.

Middle East and Northern Africa


  • Japan’s ‘comfort women’ battle has spilled over into the United States.
  • Myanmar expressed “deep sorrow” on Monday for the deaths of five people across the border in China’s Yunnan province that it has been blamed for, and said it was jointly investigating the incident with Beijing.
  • China’s relations with Japan face a “test” this year linked to whether Japan can properly atone for its wartime past, Chinese Premier Li Keqiang said on Sunday.
  • About $1 million provided by the CIA to a secret Afghan government fund ended up in the hands of al Qaeda in 2010 when it was used to pay a ransom for an Afghan diplomat, the New York Times reported on Saturday.





  • The United Nations has postponed until next week a new round of talks with Libyan politicians to try to end a crisis that has left the country with two rival governments and armed factions battling for power and oil wealth.
  • One of the Pacific Ocean’s most powerful ever storms devastated the island nation of Vanuatu on Saturday, tearing off roofs, uprooting trees and killing at least eight people with the toll set to rise, aid officials said and the United Nations was preparing a major relief operation and Australia said it was ready to offer its neighbor whatever help it could.

Events and Announcements: March 15, 2015

by An Hertogen

Calls for Papers

  • TDM is calling for papers for a special issue on Latin-America. Since the beginning of the 21st century, Latin America has sought the proper response to international disputes. That effort has been complicated by the opportunities and realities of globalization and its relation to its effects on local economies and government policy. While new export markets have driven growth in certain sectors, the desire to utilize local resources for internal development has presented significant challenges, both economic and political. We invite submissions for a TDM Special Issue on Latin America that seeks to dive in to these issues and the tension resulting from them, both from a theoretical and practical perspective. The topics to be discussed include the following: * Disputes Involving States and State Parties; * Control of Local Laws and Courts over International Transactions; * Changes in Dispute Resolution Methods; * Implications of Investment by “Multi-Latinas” and Access to Changing Markets; * Regional and National Disputes. Proposals for papers (e.g. abstracts) should be submitted to the editors Dr. Ignacio Torterola (Brown Rudnick LLP) and Quinn Smith  (Gomm & Smith). Intended publication date: final quarter of 2015.
  • Jessie Hohmann (Queen Mary) and Daniel Joyce (UNSW) invite contributions to an edited volume on International Law’s Objects: Emergence, Encounter and Erasure through Object and Image. The project interrogates international law’s material culture and everyday life.   Motivating this project are three questions: First, what might studying international law through objects reveal? What might objects, rather than texts, tell us about sources, recognition of states, construction of territory, law of the sea, or international human rights law? Second, what might this scholarly undertaking reveal about the objects – as aims or projects – of international law? How do objects reveal, or perhaps mask, these aims, and what does this tell us about the reasons some (physical or material) objects are foregrounded, and others hidden or ignored? Third, which objects will be selected? We anticipate a no doubt eclectic but illuminating collection, which points to objects made central, but also objects disclaimed, by international law. Moreover, the project will result in a fascinating artefact (itself an object) of the preoccupations of the profession at this moment in time. Further information, including the timeline for submissions, can be found in the call for papers which closes on April 18, 2015.


  • Registration is now open for the 4th annual conference of the Cambridge Journal of International and Comparative Law (CJICL) to be held at the University of Cambridge on 8 and 9 May 2015. The conference theme is Developing Democracy: Conversations on Democratic Governance in International, European and Comparative Law. You can find the conference programme and the registration form on the conference website.

Our previous events and announcements post 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: March 8-14, 2015

by Jessica Dorsey

This week on Opinio Juris, we saw some analysis on the recent letter sent by US Republicans to Iran. Julian kicked off the discussion by pointing out the (unnecessary?) letter explaining the US Constitution and foreign relations law and Peter questioned whether the letter might be unconstitutional and even criminal. Julian offered further thoughts about why the Congress should be involved in the process, after Iran responded to the letter. Duncan spelled out the President’s options for dealing with Iran, with a focus on international commitments and domestic authority to commit the US internationally and Julian found a workaround toward a legally binding solution via a Security Council resolution on the matter.

Kevin added a few of his thoughts on the recent domestic conviction by the Ivory Coast of Simone Gbagbo and complementarity at the ICC, and offered a mea culpa on the Israeli attacks on Hezbollah in 2006. Finally, Tom Ruys offered a response to a recent discussion with his guest post on self-defense and non-state actors in the Cold War Era. We saw a lot of discussion on all the posts this week in the comments.

I wrapped up the news here and listed the events and announcements here.

Thanks for following us and have a great weekend!

The Security Council Workaround: How the Iran Deal Can Become Legally Binding Via a UN Security Council Resolution

by Julian Ku

Since the United States has made clear that its “deal” with Iran will NOT be a binding legal commitment under international law, one wonders what all the fuss over the Iran Letter from US Senators was about. As Duncan explains in his great post below, there is little doubt that the President can enter into a nonbinding “political commitment” and withdraw from it without violating international law.  Confusingly, though, Iran keeps talking as if there is going to be a binding international legal commitment.

The answer to this confusion appears to be that the US government plans to make a non-binding political commitment, and then take this commitment to the UN Security Council to get it “carved into marble” as a Security Council resolution that would be binding under international law.  Jack Goldsmith explains in detail at Lawfare how this might happen, and why this is constitutional (if also kind of sneaky).  The President gets to both avoid going to Congress AND get a binding legal obligation on Iran.

Of course, a future President could choose to withdraw or defy the UN Security Council resolution, but the legal and diplomatic costs would be much higher than withdrawing from a mere political commitment.  Congress could also, unquestionably, override any domestic legal effects of a UN Security Council Resolution by passing a statute refusing to lift sanctions on Iran, or stopping the President from doing so.  Diggs v. Shultz makes clear that a statute passed by Congress later in time than a Security Council resolution will have the force of law by operation of the last in time rule.  But the legal and diplomatic costs for doing so would also be higher than for a mere political commitment or even a bilateral executive agreement.

So the Administration has a plan to avoid Congress and get its deal sanctified by international law.  Pretty clever lawyering, although I (like Goldsmith) expect some serious political blowback from Congress.

Guest Post: Self-Defence and Non-State Actors in the Cold War Era – A Response to Marty Lederman

by Tom Ruys

[Tom Ruys is professor of international law at Ghent University. He is the author of ‘Armed Attack’ and Article 51 of the UN Charter (CUP: 2010) and co-editor-in-chief of the Journal on the Use of Force and International Law.]

In a previous post on OJ, Kevin Jon Heller talked about the Israeli intervention in Lebanon in 2006 and its relevance from a jus ad bellum perspective. The post gave rise to a discussion between Kevin and Marty Lederman revolving essentially around the legality of self-defence against attacks by non-State actors in the Charter era. Kevin takes the position that throughout the Cold War attacks by non-State actors were generally only regarded as ‘armed attacks’ in the sense of Article 51 UN Charter inasmuch as they could be imputed to a State. In this context, Kevin among others things quotes a section of my book from 2010. Marty, on the other hand, claims that ever since the 1837 Caroline affair, States have always regarded attacks by non-State actors as ‘armed attacks’ (irrespective of any State involvement), which may trigger the right of self-defence if the necessity and proportionality requirements are met. He adds that there is no clear evidence from the Cold war era to suggest that States have come to embrace a prohibition on the exercise of self-defence against non-State attacks since 1945. Marty notes en passant that the excerpt from my book contains ‘no references to any state practice or opinio iuris’ that would support Kevin’s position. Yet, if this is indeed the case, it is because the excerpt is merely the conclusion of a much more extensive chapter, which does contain ample illustrations in terms of State practice and opinio (similar and other references can moreover be found in the excellent analyses by Olivier Corten (Law Against War) and Christine Gray (International Law and the Use of Force)).

Upon a closer reading of Marty’s comments, I doubt we can find much common ground, since our points of departure seem diametrically opposed. Marty’s view rests on the presumption that pre-Charter precedents, such as the Caroline case, are ‘incorporated’ in Article 51 UN Charter. I essentially agree that the Caroline case has largely constituted the source of inspiration for the customary requirements of necessity and proportionality in the context of the right to self-defence. That is not to say, however, that what was considered permissible back in 1837, was still deemed permissible in 1945. Quite the contrary, even if we leave aside the fact that recourse to war was still regarded as a lawful means of settling inter-State disputes in the 19th century, the 19th-century understanding of self-preservation was much broader than the modern concept of self-defence, which developed only gradually in the early 20th century. The modern jus contra bellum is a product of the late 19th and mostly early 20th century. Up until 1912, Oppenheim stated without hesitation that intervention ‘in the interest of the balance of power’ must ‘obviously’ be excused, since ‘an equilibrium between the members of the Family of Nations is an indispensable condition of the very existence of International Law’ (International Law, 2nd ed.). In other words: pre-Charter precedents must be put into perspective. Instead of relying on 19th-century precedents, the proper course in dealing with this conundrum is to look at the Charter provisions and at evolutions in State practice in opinio juris since 1945.

Below are some cursory comments that tend to support Kevin’s position:

The adoption of the UN Charter and its aftermath

Even if some official statements and some draft versions of Article 51 refer to ‘attacks by one State against another’, the problem of non-State attacks was widely overlooked at the San Francisco Conference. Still, there are various indications that self-defence in the early Charter era was essentially construed as applying to attacks by one State against another. Kunz, for instance, in 1947 wrote that an armed attack ‘must not only be directed against a State, it must also be made by a State or with the approval of a State’ ((1947) 41 AJIL, 878). And the 1949 Report of the US Senate Committee on Foreign Relations on the North Atlantic Treaty contains the following observation: ‘[T]he words ‘armed attack’ clearly do not mean an incident created by irresponsible groups or individuals but rather an attack by one State upon another… However, if a revolution were aided and abetted by an outside power such assistance might possibly be considered an armed attack.’

Article 3(g) of the Definition of Aggression

Marty Lederman dismisses the idea that the Article 3(g) of the Definition of Aggression renders any support to Kevin’s position, since it ‘doesn’t say a thing about whether and in what circumstances IL prohibits State A from attacking the armed group in the territory of State B.’ That is perhaps textually correct, but if one takes a closer look at the debates within the Fourth Special Committee on the Definition of Aggression, it becomes obvious that the precise wording of this provision had everything to do with the underlying effort to find a compromise on the scope of Article 51 UN Charter (e.g., Italy: ‘The main concern was whether the right of self-defence should apply in cases of indirect aggression…’ UN Doc. A/AC.134/SR.52-66, 100). It all started with the following clause in the draft ‘Thirteen-Power proposal’: ‘When a State is victim in its own territory of subversive and/or terrorist acts by irregular, volunteer or armed bands organized or supported by another State, it may take all reasonable and adequate steps to safeguard its existence and its institutions, without having recourse to the right of individual or collective self-defence against the other State under Article 51 of the Charter’ (Article 7, UN Doc. A.AC.134/L.16). The draft clause fuelled an intense debate over the circumstances in which ‘indirect’ aggression might or might not trigger the right of self-defence. It is thus not too surprising to see that the ICJ used Article 3(g) of the Definition of Aggression in its Nicaragua case as the relevant threshold to determine whether attacks by non-State armed groups could justify the exercise of self-defence. What was surprising, however, about the Court’s approach, was that the Court gave a restrictive interpretation to Article 3(g) by excluding the provision of ‘logistical or other support’ (thus by and largely confining the applicability of Article 51 UN Charter to attacks imputable to a State, leaving little or no room for other forms of ‘substantial involvement’).

State practice in the Cold War period

If we look at State practice prior to 1980, in particular to the interventions by Israel, Portugal and South Africa in neighbouring countries, it is quite clear that State invoking the right of self-defence to justify cross-border military action against non-State actors generally claimed that the other State had somehow ‘sent’ the perpetrators of the initial attacks. By contrast, self-defence claims relying on active or passive support to armed bands or ‘terrorists’ operating on a more autonomous basis, did not meet with legal acceptance from third States. There is no evidence from the early Charter years to suggest that attacks by non-State armed groups could as such qualify as ‘armed attacks’ (irrespective of any State involvement).

It is only in the 1980s and the 1990s that this situation began to change as Israel, and subsequently the United States, increasingly began to claim a broader right to exercise self-defence against attacks by non-State actors (absent State imputability). This evolution must be seen against the background of an evolving political climate, viz. the (quasi-)completion of the decolonization process, and the growing recognition of terrorism as a threat to international peace and security. Cases such as the Israeli raid against the PLO headquarter in Tunis nonetheless illustrate that these claims initially met with a lukewarm, if not outright negative, reaction from third State (e.g., UN Doc. S/PV.2613, § 115 (Greece: ‘Acts of terrorism cannot in any way serve as an excuse for a Government to launch an armed attack on a third country’.).

State practice after the Cold War era and the 9/11 attacks

Marty stresses in his comments that the excerpt from my book contains ‘no references to any state practice or opinio iuris’ from the Cold war era affirming the need for State imputability (or at least State involvement) for attacks by non-State actors to trigger the right of self-defence. By contrast, he suggests the same excerpt refers to a ‘considerable number of interventions’ as well as ‘numerous security doctrines and official statements’ supporting the opposite view that non-State attacks can ipso facto amount to ‘armed attacks’ in the sense of Article 51 UN Charter. These references, however, relate to the post 9/11-era, not to the early Charter years. I readily acknowledge – and here I must depart to some extent from the position of Kevin – that there have been significant evolutions in State practice and opinio juris (cf. the Israeli intervention in Lebanon in 2006 or the strikes against IS in Syria). Yet, I fully agree with Kevin that this evolution is of a relatively recent nature and does not alter the fact that for most of the Charter era attacks by non-State armed groups were not, of themselves, regarded as ‘armed attacks’ triggering the right of self-defence. I hesitate to confirm whether this broader interpretation of the concept of ‘armed attack’ (as encompassing attacks by non-State actors absent any form of State involvement) has become lex lata. Suffice it to say that State practice seems to be heading in that direction (if the ICJ had taken the opportunity to confirm this trend in DRC v. Uganda or Palestinian Wall, we would not be having this discussion), and that the US-led military operations against IS have given rise to quite a number of interesting expressions of opinio juris of various States (for a comprehensive overview, readers may wish to keep an eye on the forthcoming Digest of State Practice in the Journal on the Use of Force and International Law).

(One final thing: like Marty and others I believe an ‘unable and unwilling’ test must be regarded as an aspect of the necessity assessment. By contrast, the question whether there is need for State imputability, or some other form of ‘substantial involvement’ by a State, for cross-border attacks to trigger the right of self-defence, has to do with the interpretation of the concept of ‘armed attack’.)

Simone Gbagbo’s Domestic Conviction Illustrates the Futility of the “Same Conduct” Requirement

by Kevin Jon Heller

Another complementarity fight is brewing, this time between the ICC and Cote d’Ivoire concerning the fate of Simone Gbagbo. In 2012, the ICC issued a warrant for her arrest, claiming that there are reasonable grounds to believe she is responsible as an indirect co-perpetrator for the crimes against humanity of murder, rape, other forms of sexual violence, and persecution. Just yesterday, however, Gbagbo was convicted in an Ivorian court and sentenced to 20 years imprisonment on very different charges:

A court in Ivory Coast has sentenced Simone Gbagbo, the wife of the former president Laurent Gbagbo, to 20 years in prison for her role in a 2011 post-election crisis in which around 3,000 people were killed, her lawyer said.

Simone Gbagbo, who is also wanted by the international criminal court, was tried alongside 82 other allies of her husband in a case that revived deep divisions in a nation still recovering from years of political turmoil and conflict.

Gen Bruno Dogbo Ble, who headed the elite republican guard, and the former navy chief Admiral Vagba Faussignaux were both jailed for 20 years, according to their lawyer, while others got shorter sentences. Michel Gbagbo, the former president’s son, was sentenced to five years.

Supporters of Laurent Gbagbo, whose refusal to acknowledge his defeat to Alassane Ouattara in elections in late 2010 sparked the brief civil war, claimed his wife’s trial was politically motivated.

“The jury members retained all the charges against her, including disturbing the peace, forming and organising armed gangs and undermining state security. It’s a shame,” said Simone Gbagbo’s lawyer, Rodrigue Dadje.

Cote d’Ivore will no doubt now file an admissibility challenge with the ICC, claiming that they do not have to surrender Gbagbo because  Art. 17(1)(c) of the Rome Statute provides that a case is inadmissible if “[t]he person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3.” Art. 20(3) specifies that, as long as the trial is genuine, “[n]o person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct.”

I do not know the precise conduct that underlies Gbagbo’s domestic conviction. But it seems highly likely that the “undermining state security” and “organizing criminal gangs” charges were not based on substantially the same conduct as the ICC’s crimes against humanity charges. If not, the case will still be admissible before the Court, because Art. 20(3) explicitly permits the ICC to prosecute conduct different than the conduct underlying a domestic conviction. That specific provision has never been litigated, but the judges are very unlikely to read Art. 20(3) more expansively. After all, in the context of cases still under investigation at the domestic level, the Appeals Chamber specifically held in the Kenya cases that the domestic investigation must focus on “substantially the same conduct” as the ICC’s investigation:

The defining elements of a concrete case before the Court are the individual and the alleged conduct. It follows that for such a case to be inadmissible under article 17(l)(a) of the Statute, the national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court.

Here is my question: what would the ICC gain by insisting that Cote d’Ivoire surrender Gbagbo to the Court to face a second prosecution? After all, 20 years is hardly an insignificant sentence — five years longer than Lubanga’s, and eight years longer than Katanga’s. Should the ICC really waste precious (and overstretched) OTP resources to obtain another conviction of Gbagbo, even though — if the past sentencing practice by international tribunals is any guide — she is very unlikely to receive a longer sentence from the ICC than she has already received from Cote d’Ivoire?

My answer is simple: the ICC would gain nothing, so it shouldn’t. As I have argued at length in my essay “A Sentence-Based Theory of Complementarity,” the ICC simply cannot afford the kind of hyper-formalism that underlies both the “same conduct” requirement and Art. 20(3). In my view, the Court should defer to any national prosecution that results (or any national investigation is likely to result) in a sentence equal to or longer than the sentence the suspect could expect to receive at the ICC, even if the national prosecution is based on completely different conduct than the ICC’s investigation. The upcoming Gbagbo complementarity fight, I think, will likely illustrate why my theory of complementarity makes sense.

Finally, it’s worth noting that should the ICC agree with me, it does in fact have an out — Art. 89(4) of the Rome Statute, which provides as follows:

If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.

Nothing in the Rome Statute seems to prohibit the Court from deciding, after such a consultation, to let the suspect serve his or her domestic sentence prior to — or even instead of — requiring the state to surrender the suspect to the Court. I hope the ICC will consider such a decision regarding Gbagbo. It has nothing to gain by forcing Cote d’Ivoire to turn her over.

Dealing with Iran: A Primer on the President’s Options for a Nuclear Agreement

by Duncan Hollis

Without weighing in on the merits of any deal with Iran on nuclear matters, I’ll express some frustration over the rhetoric used in the current firestorm between the White House, 47 Senators (plus Governors Perry and Jindal), Iran’s Foreign Minister, and the 4th Estate on what kind of deal the United States might conclude with Iran and the so-called P5+1 (the UK, France, China, Russia and Germany).  There seems to be a great deal of confusion and conflation of issues in terms of the legal logistics of concluding any deal.  Now, maybe some of that is willful — obfuscation in service of each side’s political goals.  But, on the chance that some of those weighing in are under-informed on the actual issues and options available, I thought I’d offer a (brief) primer on what the actual options are in this case and how those options may limit/shape U.S. behavior.

For starters, it’s critical to differentiate the question of how nation states can reach agreement from the question of how a domestic legal system authorizes a State to enter into agreements (let alone what effect it gives them).  As such, I think the conversation needs to split off the question of (1) what kind of international deal this will be; from asking (2) what authority does the United States have (or will it need) to conclude such a deal as a matter of U.S. law.  Let’s take each angle separately.

International Commitments

When it comes to nation States entering into an agreement (that is, a mutual commitment of shared expectations as to future behavior), there are actually three basic options States can choose: (a) a treaty; (b) a contract; or (c) a political commitment.

(a) a treaty:  The treaty is a (relatively) well understood vehicle that rests on international law for its authority and effects.  Article 2(a) of the Vienna Convention on the Law of Treaties (VCLT) defines a treaty as

an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation

There’s some nuance to this definition, which I’ve explained in the Defining Treaties chapter of my book.  But for our purposes, it suffices to note that the VCLT lays out who has authority to make a treaty (i.e., heads of state and government, foreign ministers and those with full powers) and how they can do so (i.e., by signature, ratification, accession, acceptance, approval or any other agreed means).  Once formed, a treaty is subject to the general (and fundamental) principle of pacta sunt servanda — treaties are “binding upon the parties to it and must be performed by them in good faith.” Domestic legal obligations are not recognized as a basis for breaching treaty commitments, with one exception.  Article 46 provides that

1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

Article 46, however, has proven relatively limited in its availability to States as an exit option; the one time it got raised before the ICJ, the Court suggested that States are not obliged to keep track of other states’ legislative and constitutional regulations on treaty-making and that a violation could not be manifest “unless at least properly publicized.”   Given the varied ways the U.S. authorizes treaties (discussed in more detail below), it’s hard to imagine a later Administration being able to invoke Article 46.  Indeed, if U.S. foreign relations scholars can’t agree on the ground rules for when specific treaty-making procedures are required (or prohibited), I’m hard pressed to say other countries should be able to identify a manifest violation in a case where the Executive branch pursues one specific procedure over others.

(b) a contract:  Interstate commitments can also be contracts instead of treaties. Contracts, like treaties, are considered legally binding, but differ from them in that contracts rely on domestic law as the source of their “bindingness” instead of being governed by international law as treaties are. Still, governments from time to time will do deals (e.g., one State selling helicopters to another) where the agreement specifically indicates its terms are governed by, say, the “law of New York.” This doesn’t seem to be on the table with Iran though, so I’ll reserve to a latter date more detailed analysis of how contracts and treaties differ. 

(c) a political commitment:  The third — and final — option for agreements among States is a “political commitment.”  Some scholars prefer to call it “soft law,” but for reasons Josh Newcomer and I elaborated in our article on political commitments, I think that term is a bit of a misnomer. The basic idea is simple — states can make agreements where the basis of their commitment does not rest on law, but “political” (or perhaps “moral”) forces.  In a political commitment, the fact of the promise itself motivates compliance rather than importing the sanctity of law and its legitimacy to do so. Non-legally binding commitments have now been a feature of international relations for more than a century, and include some pretty high-profile agreements, including the Shanghai Communique, the Helsinki Accords, the recent US-China Deal on Climate Change, and the Comprehensive Joint Plan that started this whole set of negotiations with Iran.  Moreover, as Josh and my article details, these commitments exhibit a tremendous diversity in terms of the form they take, the substantive commitments they contain, the extent to which they establish or implicate institutions, not to mention their varied relationships to other legal and non-legal commitments.

Traditionally, political commitments are seen as distinct from treaties in terms of being (i) more flexible; (ii) less credible because exit options are easier; with (iii) greater opportunities for confidentiality; and (iv) fewer domestic legal hurdles to their formation.  The actual variation in political commitments suggests, however, that these differences may be over-stated — today’s practice suggests that there is some significant overlap in what political commitments and treaties do.  For example, it may have been true at one time that treaties were necessarily less flexible than political commitments, but with the advent of tacit amendment procedures, treaties have gained in flexibility, while some political commitments have become more highly structured and inflexible in terms of the precision or normativity of their contents or the institutional structure in which they operate.  The one area where political commitments appear to hold a distinct advantage (or disadvantage depending on your perspective) is with the relatively weak domestic law attention they receive.  As Josh and I concluded in our article — a point reiterated earlier today by Jack Goldsmith and Marty Lederman, states like the United States have imposed few (if any) legal restrictions on the Executive’s ability to enter into political commitments.

Domestic Authorities to Commit the United States Internationally

In Article II, Section 2, clause 2 of the Constitution, the President has the “power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.”  If one were to take up the issue de novo, you might think this text requires that all treaties the United States wishes to conclude under international law have to proceed to the Senate.  In practice, however, Senate Advice and Consent has become one of only four ways the United States may gain authority to enter into a treaty (in the international law sense of that term).  Add in the possibility that the Iran deal might be a political commitment, and there are actually five options for how U.S. law might authorize a deal with Iran: (i) Senate Advice and Consent; (ii) a Congressional-Executive agreement; (iii) via an existing Senate Advice and Consent treaty; (iv) a sole Executive Agreement; or (v) a political commitment.

(i) Senate Advice and Consent Treaty.  If the United States concludes a treaty (in the international law sense of the term) with Iran and the P5+1, President Obama could send that treaty to the Senate for advice and consent, and, assuming the Senate agreed (with or without reservations, understandings or declarations), the President would then clearly have constitutional authority to consent to the deal.  Senate advice and consent is much less used compared to the past (less than 10% of modern treaties go through the Senate), although it should be noted that almost all past arms control agreements have received Senate advice and consent.  Still, given the general stalemate that has pervaded the Senate’s role in treaty-making the last few years, this seems a complete non-starter as a path forward, particularly with 47 Senators on record against virtually any deal involving Iran.

(ii) Congressional-Executive Agreement:  The President could gain authority to conclude a treaty (again, in the international law sense of that term) with Iran and the P5+1 via Congress instead of the Senate alone.  A simply majority vote of both Houses could enact a bill that with the President’s signature would become federal law and thus create legal authority for the United States to conclude (and perform) an Iranian treaty.  As a practical matter, congressional consent can be ex ante or ex post, but again, domestic politics in this case countenances against this being a likely option (even though today the vast, vast majority of U.S. treaty commitments under international law rely on one or more statutory authorities for their formation).

(iii) via an Existing Senate Advice and Consent Treaty:  Article VI of the Constitution treats both statutes and treaties (i.e., those receiving Senate advice and consent) as the “supreme law of the land.” Thus, just as a statute could authorize President Obama to conclude an international agreement with Iran, so too could a pre-existing Senate advice and consent treaty.  So far, I’m not aware of any nominations for an existing U.S. treaty that could do this (but someone might want to carefully parse the 1955 Treaty of Amity and Peace with Iran if it’s still in force (it’s not listed in Treaties in Force)).   Or, this might be a way forward if, as Marty and Jack hint, the Executive branch concluded the deal with Iran as a political commitment, but then had it endorsed by the U.N. Security Council pursuant to its Chapter VII authorities.  In that case, legal authority to conclude the deal might reside in the U.N. Charter itself since the Senate long ago gave consent, subject to a U.S. veto, to Security Council measures to preserve international peace and security.  As such, I don’t think we can dismiss this option as much as it might seem inapplicable at first glance.

(iv) Sole Executive Agreement:  The President may rely on his own Constitutional powers (e.g., as commander in chief) to authorize a U.S. treaty commitment.  In practice, this is rarely done as the State Department will usually try to also locate authority in at least one federal statute (even something as bland as Congress’ authorization of State Department responsibility for foreign affairs).  That said, the Supreme Court has endorsed the President’s ability to conclude certain treaties as sole executive agreements, although often in the face of congressional acquiescence, not outright opposition.  So, one might imagine this option would generate some inter-branch litigation if the Republican-controlled Congress rejects reading the president’s powers to include whatever sort of commitments are contained in any agreement the United States concludes with Iran.  Still, if the deal is to be a treaty under international law, this seems the most likely basis for authorizing it under U.S. law.  As Fred Kaplan noted yesterday, and Secretary Kerry apparently suggested a few hours ago, all the attention on treaties may have been misplaced and an entirely different deal might be at work here, namely a political one.

(v) Political Commitment;  It’s possible that the White House is looking for a political commitment with Iran and the P5+1.  If so, then all the machinations about forming a treaty under international law, and, just as importantly, the relatively robust set of domestic approval options for treaty-making, are inapplicable.  Although Josh and I argued that functional similarities between treaties and political commitments should require a Congressional role in the formation of at least some political commitments, I concede that Marty and Jack are correct that at present it’s hard to say this is the law of the United States.  On the contrary, today, it still appears that political commitments by their very nature do not implicate any of the domestic legal, procedural hurdles associated with treaties and thus may be a path forward for the United States to do a deal with Iran without worrying about the views of either the Senate or Congress as a whole.

That said, if the United States is actually going to argue it is concluding a political commitment with Iran and not a treaty, I want to conclude with two important caveats on the international and domestic aspects of such a deal that I’ve not seen mentioned previously.

First, a political commitment must be a political commitment for all sides, not just one side.  There’s much ambiguity in the U.S. and Iranian statements surrounding some of the negotiations, and it’s possible to read some of yesterday’s press briefing to suggest a deal where the United States would have only a political commitment while Iran was legally bound to perform its promises (see, for example, the carefully worded “verifiable and enforceable commitments” language used). That, however, is not an available option in international law.  Either the agreement is a treaty for all parties or its a political commitment for all participants.  I am unaware of any case where the nature of the agreement varies for the parties to it (that is it was a treaty for one state and a political commitment for everyone else).  Certainly, there have been disputes in the past as to the status of a particular agreement, with the ICJ and international arbiters called upon to weigh in on whether the deal struck gave rise to international legal obligations or not.  And it’s also possible for a treaty to contain not just legally binding commitments but also political ones (see, e.g., Article 1 of the Algiers Accords).  But, a stand-alone political commitment is, by definition, mutually exclusive from the international legal commitment that defines a treaty.  As such, once an agreement contains at least one commitment intended to be governed by international law, it’s a treaty not a political commitment.  Indeed, unlike contracts, treaties do not require consideration.  Thus, a treaty can exist where only one side (e.g., Iran) makes all the promises to do (or not do) certain things. Taken together, this suggests that, unless the United States is making some new, novel move to unsettle the existing forms of international commitment, its suggestion that it is pursuing a political commitment with Iran should mean that none of the commitments will give rise to any international legal obligations in and of themselves (there may be separate estoppel arguments, but let’s save those for another post).

Second, turning to the U.S. domestic context, it may be true that the Constitution does not require any particular approval procedure for political commitments, but it is also true that the Senate retains significant political power to pressure the President to pursue a treaty over a political commitment or even to insist on having a treaty submitted for Senate advice and consent in lieu of simply relying on Executive Power.  For example, before it became the Senate-approved Moscow Treaty, President Bush had apparently considered the possibility of doing the deal with Russia as either a political commitment or a Sole Executive Agreement.  But the Senate objected; and in a bipartisan push succeeded in having the deal submitted for its advice and consent.  Thus, one could imagine that if the Senate (or I suppose Congress as a whole) wanted to deploy their political checks on Executive power (think appropriations or ambassadorial/cabinet approvals), the White House might have to recalculate whether and how it wants to proceed with Iran here.  Nor is this entirely a U.S. problem; reports suggest that when the United States was looking to craft a strategic framework with Iraq a few years back, the Iraqis ended up concluding that the deal had to be done as a treaty (in the international law sense) since their Parliament was insisting on approving it in lieu of going to more streamlined political commitment route.  Simply put, just because there may be no extant constitutional constraints on the President’s ability to conclude a political commitment with Iran does not mean that there won’t be domestic negotiations over whether and how the United States concludes any deal involving Iran and nuclear matters.

So . . . now that I have that all off my chest, I’ll get out of the way and let the various actors continue to negotiate and debate the merits of the appropriate way(s) forward here.  I just hope that folks will do so with more attention to what the existing international and domestic law has to say (or not say) on these questions.


Mea Culpa Regarding Israel’s Attacks on Hezbollah in 2006

by Kevin Jon Heller

In a number of posts (see, for example, here and here), I have claimed that the League of Arab States (LAS) formally rejected the “unwilling or unable” test in the context of Israel’s 2006 attacks on Hezbollah in Lebanon. Thanks to comments by Ori and Tom Ruys on the most recent post, I now realize I have been guilty of the same kind of methodological sloppiness that characterizes most scholarly work in defence of the test. If you read the statement by the LAS — you can find it here — there is no way to determine whether the it denounced Israel’s attack because it rejected the “unwilling or unable” test or — and this actually seems more likely — because it simply rejected Israel’s claim that it was acting in self-defence. (I disagree with Ori that the statement can be read as an indictment of Israel solely for using disproportionate force in self-defence.) And if we cannot determine the precise reason why LAS rejected Israel’s self-defence claim, that rejection obviously cannot provide opinio juris against the “unwilling or unable” test.

That said, loathe though I am to disagree with Tom, I don’t see the international response to Israel’s attacks on Hezbollah in Lebanon as supporting the “unwilling or unable” test. Most obviously, Israel claimed that Hezbollah’s actions were attributable to Lebanon — it did not invoke the test at all. Moreover, no state specifically invoked “unwilling or unable” during the Security Council debate over Israel’s actions — some expressed concern over Lebanon’s failure to exercise effective control over the entirety its territory, but a number of those states attributed that failure to Israel’s occupation of southern Lebanon, not to Hezbollah’s actions. So I agree with Olivier Corten that “these standpoints are highly ambiguous and so it seems a very difficult business to deduce from them any opinio juris.”

My thanks to Ori and Tom for weighing in — and to Ori for providing links to the relevant documents. Apologies to readers for being so sloppy. I just hope my lack of care will not distract from my basic point, which is that scholars who claim that the “unwilling or unable” test represents customary international law have failed to identify (anywhere near) sufficient significant state practice or opinio juris in defense of their position.

Iran Responds to US Senators’ Letter, Shows Why Congress Should Be Involved in the First Place

by Julian Ku

I am totally swamped with various overlapping projects right now, so let me procrastinate anyway by noting that Iran took my suggestion and sent a response to the “open letter” sent them from 47 US Senators yesterday.  The letter actually shows why the President, and not the senators, is the one who is operating on the edge of constitutionality.

In the letter, Iran’s foreign minister suggested the senators were violating the US Constitution’s allocation of foreign policy conduct to the President.

[Foreign Minister] Zarif “expressed astonishment that some members of Congress find it appropriate to write leaders of another country against their own president,” a press release explained. “It seems that the authors not only do not understand international law, but are not fully cognizant of the nuances of their own Constitution when it comes to presidential powers in the conduct of foreign policy.”

As I explained yesterday, I don’t think the letter is a  violation of the Constitution, although there is a closer question under the much-cited, never used Logan Act.

What I found more interesting is the Iranian FM’s suggestion that a future president who withdrew from or amended the agreement would violate international law. This statement illustrates why I think Congress should be included in this process in the first place.

[Zarif] warned that a change of administrations would not relieve the U.S. of its obligations under an international agreement reached under the previous administration. Any attempt to change the terms of that agreement, he added, would be a “blatant violation of international law.”

“The world is not the United States, and the conduct of inter-state relations is governed by international law, and not by U.S. domestic law,” Zarif explained. “The authors may not fully understand that in international law, governments represent the entirety of their respective states, are responsible for the conduct of foreign affairs, are required to fulfil the obligations they undertake with other states and may not invoke their internal law as justification for failure to perform their international obligations.”

Zarif is no doubt right as a matter of international law (assuming there will be a binding agreement as opposed to a mere political commitment).  But think about it.  Why should a president be allowed to commit the US to binding obligations under international law that neither Congress nor a future President can withdraw from without violating international law?  Shouldn’t such a president be required to first get approval from Congress before committing the United States to this path? Isn’t that why there is a Treaty Clause in the first place? At the very least, doesn’t it make constitutional sense for Congress to have a right to weigh in?

So while lefty blogs and lefty senators are having a field day accusing the Republican senators of violating the law or exaggerating Jack Goldsmith’s pretty minor quibble with the letter’s use of the term ratification, they are ignoring the real constitutional question here.  The President seems ready to commit the United States to a pretty serious and important international obligation without seeking prior or subsequent approval from Congress.  And foreign countries are ready to denounce the United States if, say Congress, decides to pull out or refuses to carry out those obligations. Even if the President’s actions are good policy, it seems like a political and constitutional train wreck that could easily be avoided if the Administration simply agreed to send the Iran deal to Congress.

Way back in 2008, leading scholars like Oona Hathaway and Bruce Ackerman repeatedly denounced President Bush for considering executing a security agreement with Iraq without Congress. Where are the academic defenders of Congress’s foreign policy prerogatives now?

GOP Iran Letter Might Be Unconstitutional. Is It Also Criminal?

by Peter Spiro

I’ll one-up Julian’s post below on Tom Cotton’s letter to the leaders of Iran admonishing them that any agreement entered into today could be reversed by Obama’s successor. It appears unprecedented for a group of opposition members of Congress to engage in such a communication.

It may also be criminal. The 1799 Logan Act provides that:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

Most putative Logan Act violations violate the spirit and structural foundations of the Logan Act (John Boehner’s invitation to Benjamin Netanyahu supplying a recent example). This one seems to squarely satisfy its elements. We have:

  • a correspondence with a foreign government (whether direct or indirect, in the form of an “open letter”, matters not),
  • without the authority of the United States (it enjoys no imprimatur from the executive branch nor, for that matter, from Congress as an institution),
  • with the pretty clear intent “to influence the measures or conduct of” the government of Iran in relation to a controversy with the United States.

Some might debate the last prong, but what other motivation could the letter have than to persuade Iranian leaders to back off a deal for fear that it will hardly be worth the paper it’s written on?

Now I know as well as the next guy that there’s been no Logan Act prosecution in the modern era. I also understand that in the wake of globalization national legislators routinely interact with foreign government officials. Iran is probably sophisticated enough about US constitutional law to the point that the letter’s substance isn’t news to them. But an initiative like the Cotton letter seems to cross a line, and perhaps it should be slapped back. How will contested foreign policy initiatives ever get off the ground if whoever’s out of the White House can meddle so brazenly? We have clearly left the era in which politics stopped at the water’s edge.

UPDATE: Steve Vladeck has this post up at Lawfare arguing against the Logan Act’s viability in this context. I take the point on desuetude. A law that lies around unused for a protracted period at some point becomes not-law (think jaywalking). Steve also argues that as a legislator, Cotton may have been acting with the “authority of the United States.” I can’t agree on that point. If anything, Cotton’s status as a senator makes the offense a greater one, because it’s more likely to be taken seriously and do real damage to national foreign relations.

As for the First Amendment, there are certainly First Amendment implications here. The Cotton letter involves speech that would be fully protected in the ordinary domestic context. But the Constitution in general and the First Amendment in particular are seen through different lens when it comes to foreign relations.  Does that mean that the Logan Act would withstand a First Amendment defense? Not necessarily. But the answer is not so clear cut as it would otherwise seem.

None of this is to say that there will or even should be a Logan Act claims against Cotton and his collaborators, and the factors that Steve highlights plainly contribute to non-prosecution as a prudential matter. But the above-the-fold attention given to the Cotton letter shows that there is something out of the ordinary going on here. If he had said the same things on CNN no one would have paid any attention; it would have been business as usual. Not so as addressed to the Iranian leadership.

47 US Senators Send Iran’s Leader an Unnecessary(?) Primer on How US Constitution Works

by Julian Ku

Most of the US Senate’s Republican membership has signed an open letter to Iran’s leaders “informing” them about the nature of the U.S. constitutional system with respect to international agreements.   It is actually a very accurate statement of US foreign relations law, even if it is a little strange and potentially intrusive into the President’s foreign affairs power. It may also concede more than the Senators may have wanted to on the constitutionality of the proposed Iran deal.

Here are the key paragraphs in the letter;

[U]nder our Constitution, while the president negotiates international agreements, Congress plays a significant role in ratifying them.  In the case of a treaty, the Senate must ratify by a two-thirds vote.  A so-called congressional-executive agreement requires a majority vote in both the House and the Senate….Anything not approved by Congress is a mere executive agreement.

What these two constitutional provisions mean is that we will consider any agreement regarding your nuclear-weapons program that is not approved by Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei.  The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.

OK, there is nothing here that is incorrect, as a matter of law, and this is not surprising since the letter was apparently drafted by Sen. Tom Cotton of Arkansas, a very smart and knowledgeable constitutional lawyer. The letter does raise a couple of important constitutional issues.

First, a letter sent directly to a foreign leader on a matter which is currently under negotiations with the U.S. could be criticized as an unconstitutional interference in the President’s inherent  power to conduct foreign affairs.  Certainly, it is very unusual.  Imagine if the U.S. Senate had sent a letter to the Iraqi leaders in 2007-8 that Congress was going to have to approve any US-Iraqi alliance or defense cooperation treaty.

In any event, I actually think this letter skirts, but manages to avoid, any unconstitutional interference.  Phrased merely as a letter “bringing attention” to the U.S. constitutional system, the letter does not state U.S. policy, nor does it make any statement on the question of policy.

The most troubling line of the letter is: “The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.  ” But this is indisputably correct as a matter of law.

Maybe the strongest criticism of the letter is simply that it need not have been sent.  The only possible purpose of sending the letter is to discourage the Iranians from actually concluding an agreement, since presumably the Iranians can read US foreign relations law textbooks (or even blogs) without the help of the US Senate.  But then again, maybe they don’t. If the Iranians are somehow deluded into thinking a sole executive agreement could survive a Republican president in 2016, it is probably best for all concerned that they know the truth now.

Second, and on the other hand, I do wonder if the senators here may have conceded more than they wanted to here.  There is still a plausible constitutional argument out there that President must submit the Iran nuke agreement to either the Senate (as a treaty) or to Congress as a whole.  The letter all but concedes that the President can indeed conclude a sole executive agreement with Iran on this matter.  Doesn’t this undercut the Senators’ argument that they should, indeed, must have their say on this deal?  (also, they only got 47 votes! There are 55 Republican senators, plus some Democrats who also oppose the Iran deal. Do they not agree with this statement of law?).

In any event, I can’t recall a letter of this sort from recent (or even older) U.S. history.  Readers should feel free to add examples in the comments.  I wonder if the Iranians will send a letter back?

Weekly News Wrap: Monday, March 9, 2015

by Jessica Dorsey

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


Middle East and Northern Africa





  • Australia is systematically violating the international Convention Against Torture by detaining children in immigration detention, and holding asylum seekers in dangerous and violent conditions on Manus Island, a United Nations report has found.


Events and Announcements: March 8, 2015

by Jessica Dorsey


  • The Conference of the African Association of International Law will take place in Libreville, Gabon from 29 – 31 August 2015. Deadline for submissions of abstracts: 15 March 2015. The African Association of International Law (AAIL) is pleased to announce its 2015 conference entitled: International Economic Law and Development in Africa: Challenges and Opportunities. The working languages of the Conference are English and French. Submissions are welcome in either language. Only one submission per author will be considered. Submissions from women are strongly encouraged. Kindly send an abstract (300 – 500 words) of your paper including your curriculum vitae as well as contact details and institutional affiliation. These materials should be sent to: conference2015 [at] aail-aadi [dot] org before 15 March 2015. Successful applicants will be notified by 31 March 2015. The deadline for submission of final papers is 30 June 2015. Conference fees will be waived for all selected panelists. An award will be given to the author(s) of the best paper of the conference. Selected papers will be published in the African Yearbook of International Law. Should you have any questions about the conference or the call for papers, kindly contact Adejoké Babington-Ashaye, AAIL Director of Programmes at conference2015 [at] aail-aadi [dot] org.
  • The University of Iceland Human Rights Institute and iCourts, the Danish National Research Foundation´s Centre of Excellence for International Courts at Copenhagen University, invite all PhD students to attend a high-level seminar entitled Methods of Human Rights Law Research 26-27 May 2015


  • The 4th Munich Advanced Course in International Law (MACIL), organised by the Chair of Public International Law of University of Munich (Germany), will take place in August 2015. The 2015 session is entitled ‘International Law Beyond the State: Towards a New Role for Individuals and other Non-State Actors’. Classes are going to discuss the role of individuals and other non-state actors in international law both from a general international law perspective and with reference to specific case studies. Students of international law, young academics and practitioners of international law or related fields are warmly invited to apply. Deadline for application is 30 April 2015. Further information regarding the programme and the 2015 faculty can be found here.
  • PluriCourts, a Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order in the fields of human rights, trade, investment, international criminal courts and the environment, are offering up to five 3-year postdoctoral fellowships. For more information, click here.

Calls for Papers

  • AJIL Unbound has called for submissions for a Special Issue on Third World Approaches to International Law (TWAIL). Third World Approaches to International Law constitute a distinctive voice in international law. These approaches have emphasized the centrality of colonialism and imperialism to the field. TWAIL has challenged the manner in which first world scholarship monopolized the production of knowledge about international law and, in so doing, has brought to the fore questions of race, culture, power relations, and class. While some TWAIL approaches have critically evaluated the continuities of colonialism and imperialism in post-cold war neo-liberal policies through a variety of lenses including Marxism, others have emphasized international law’s philosophic and theoretical features including its contingency, particularism, and indeterminacy. TWAIL scholars acknowledge that they are engaged in simultaneously critiquing and exposing the limits and the biases, blind spots and unanticipated bad consequences of international law, on the one hand, and embracing possibilities embodied in the guarantees of individual rights and self-determination, on the other. For these and other reasons TWAIL has been criticized for relying on the same underlying assumptions as the system it sought to transcend, for under-emphasizing the continuing marginalization of many women and of indigenous peoples, and for offering no positive agenda for the reform or transformation of international law. AJIL Unbound invites essays of no more than 3000 words reflecting on Third World Approaches to International Law along the foregoing non-exhaustive list of themes. The deadline for submission is April 30, 2015. Submissions should be sent to ajiltwail7 [at] gmail [dot] com.

Our previous events and announcements post 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: February 21- March 6, 2015

by An Hertogen

This fortnight on Opinio Juris, Kristen discussed the Elders Proposal for Strengthening the UN and its proposals to change the selection process for the position of the Secretary-General

Jens pointed out how the end of an armed conflict can be as legally complex as its start, and wrote about the proposed CIA reorganisation.

Patryk Labuda contributed a guest post on hybrid justice in Africa

Julian asked whether Japan will embrace the ‘illegal but legitimate view of the UN Charter’s limits on the use of force. He also wondered whether the proposed Hong Kong Human Rights and Democracy Act amounts to a violation of the principle of non-intervention. Julian then argued that the proposed Iran Nuclear Agreement Review Act would only impose modest oversight on the administration, and should therefore not be vetoed by the President, although he pointed out that it is close to having enough votes to override a veto. Julian also updated us on the latest steps in the Ghana-Côte d’Ivoire ITLOS arbitration.

Kevin traced the march of the “unwilling and unable” doctrine through academia and spread the news about job vacancies at SOAS

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

Have a nice weekend!

Will the CIA abandon the analyst/operative divide?

by Jens David Ohlin

Mark Mazzetti of the New York Times says that John Brennan has proposed a major reorganization of the CIA that will, to a large extent, break down the deep bureaucratic divide between agency analysts and clandestine operatives.

Historically, analysts engage in research and, as their name suggests, intelligence analysis. Some of that was obscure and abstract–for example writing reports on the political situation in a country and the likelihood that a particular head of state might be deposed. But other aspects of that research might be of more immediate relevancy for agency clandestine operations–for example analysis of intercepted communications between known terrorists oversees that might yield actionable intelligence for a particular operation. However, despite the obvious relevance of the work performed by analysts, they were traditionally organized into separate divisions and reported to separate department heads from their operative counterparts who plan and execute clandestine operations oversees.

Now, John Brennan wants to collapse that distinction. As Mazzetti notes, there is already a template for collapsing the rigid boundaries between the roles. The CIA Counterterrorism Center combines analysts and operatives into a single division devoted to stopping terrorist attacks–a project that involves close cooperation between analysts and operatives. Brennan would take that successful model and apply it to the entire agency. According to Mazzetti, Brennan wants to divide the agency into geographical divisions responsible for both analysis and operations in each area of the world, just as the U.S. military is controlled by regional commanders.

Will Brennan get his way? Mazzetti quotes one former agency employee who is skeptical:

“Mark M. Lowenthal, a former senior C.I.A. analyst, said that the reorganization ‘is not going to go down smoothly’ at the agency, especially among clandestine spies who have long been able to withhold information from analysts, such as the identity of their foreign agents. ‘The clandestine service is very, very guarded about giving too much information about sources to the analysts,’ he said.”

“But Mr. Lowenthal, who said he had not been briefed about the reorganization and was basing his understanding of Mr. Brennan’s plan on news accounts, said that the new mission centers could help avoid a debacle like the intelligence assessments before the Iraq war, when analysts trusted information from sources they knew little about, and who were later discredited.”

The full implications of the bureaucratic reshuffling aren’t clear based on the skeletal news accounts so far. However, the plan does not appear to entail the dismantling of the CIA Directorate of Operations (aka National Clandestine Service). Rather, if I understand it correctly, operatives working for the directorate will report to a regional commander responsible for overseeing both analysts and operatives working in that geographical area. Where the overall head of the directorate of operations fits into this organizational chart, I have no idea.

The Seemingly Inexorable March of “Unwilling or Unable” Through the Academy

by Kevin Jon Heller

How does an international-law doctrine become conventional wisdom without actually having support in the practice of states? It starts with one article asserting the doctrine, but failing to defend it. Then another article makes the same claim, citing only the first article. And then another. And another. And so on — until no one remembers that the first article did not actually identify any state practice at all.

So it is with the “unwilling or unable” test, as indicated by an otherwise quite good new article in the Journal of Conflict & Security Law entitled “Jus ad Bellum and American Targeted Use of Force to Fight Terrorism Around the World.” Consider (p. 228):

With regard to the use of self-defence against private actors located in another state, two consequences flow from the requirement of necessity. First, state practice indicates that the exercise of self-defence against the private actor is conditioned on the inability or unwillingness of the authorities in the host state to stop the private actor’s activities.98 Obviously, if the host state both can and will stop the activities in question, it will not be necessary for the victim state to resort to the use of force.

I’ve left the footnote number in, because it refers to precisely one source: Ashley Deeks’ essay “Unwilling or Unable: Toward an Normative Framework for Extra-Territorial Self-Defense.” An essay in which, as I have pointed out, the author openly admits that she “found no cases in which states clearly assert that they follow the test out of a sense of legal obligation.” (The US and UK have formally endorsed the unwilling or unable test since Deeks’ article was published.)

To be sure, the new article elaborates a bit on the “support” for the unwilling or unable test. But none of that support involves the practice of states — nor does the article acknowledge the inconvenient fact that the Arab League (22 states) has formally rejected the test (post-9/11, even). Instead, it simply says this (p. 229):

The test is widely supported in the literature, and it is also mentioned in two 2013 UN reports by, respectively, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. It also features among a series of “Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors” proposed by the former legal adviser of the United Kingdom Foreign & Commonwealth Office, Daniel Bethlehem.

“Instant custom”? How passé. Who needs state practice at all? And please don’t bore us by pointing out contrary practice by a bunch of benighted states in the Global South. All we really need are enough scholars, special rapporteurs, and former legal advisors in the Global North willing and able to endorse a particular doctrine and poof — customary international law.

Iran Nuke Review Act Does Not Actually “Require” a Vote of Congress

by Julian Ku

According to the WSJ,  the “Iran Nuclear Agreement Review Act”  that I discussed earlier this week may already have 64 declared supporters in the Senate.  This means that supporters are only 3 votes shy of enough to override President Obama’s veto of this bill.

Since the bill might actually become law, it is worth reminding supporters of the bill that it does NOT guarantee that Congress will vote on the Iran nuke deal.  This might be confusing, but as I argued earlier this week, the proposed law would only suspend the lifting of sanctions for 60 days.  During that 60-day period, Congress could vote on the bill, or it could choose not to do so.  Silence would allow the sanctions to be lifted after the 60 days.  So it is not quite right to say, as the WSJ does, that the proposed law would “require a vote of Congress.”  Still, it is quite likely that Congress would vote, and at least this bill would give them the opportunity to do so.

If the bill passes, and a veto fight breaks out, it will be worth considering whether President Obama invokes any constitutional arguments to justify his position.  I believe that President Obama’s threatened veto reflects a robust and unilateralist conception of the President’s power to make sole executive agreements without Congressional approval.  It will be interesting to see if he defends his veto on constitutional grounds.

Cote D’Ivoire Seeks Provisional Measures Order from ITLOS To Stop Oil Exploration in Disputed Waters

by Julian Ku

Last September, Ghana commenced an arbitration under Annex VII of the UN Convention for the Law of Sea seeking judicial confirmation of its rights to explore for oil and other resources in maritime areas disputed by its neighbor Cote D’Ivoire.  This past January, the two countries agreed to submit a dispute over maritime boundaries to a special chamber of the International Tribunal for the Law of the Sea.  And last week, Cote D’Ivoire filed a request for Provisional Measures with the special chamber asking it to require Ghana to suspend any oil exploration activities while the matter is before the ITLOS special chamber.

Under UNCLOS Article 290, a court or tribunal with jurisdiction is empowered to issue provisional measures “which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision.”  I haven’t been privy to the papers filed in this case, but it does seem like Cote D’Ivoire should have a pretty reasonable provisional measures claim.  Indeed, the UK oil company currently exploring the disputed waters pursuant to a contract with Ghana is already planning to suspend its operations pending the outcome of the provisional measures hearing.

The Ghana-Cote D’Ivoire dispute bears watching. If these two countries are able to settle their maritime boundary dispute where lots of oil is at stake, then this would be a pretty significant accomplishment for the UNCLOS dispute settlement system. Hello, China? Anyone there?   History suggests this is going to be pretty hard, but you never know.


President Obama Goes Unilateralist; Threatens to Veto Bill Requiring Congressional Review of Iran Agreement

by Julian Ku

As Washington continues to digest Israeli Prime Minister Netanyahu’s (possibly unconstitutional) address to the U.S. Congress criticizing a pending nuclear arms deal with Iran, a constitutional and political fight is brewing over the scope of the President’s powers to make such an agreement and Congress’s power to limit or overturn his agreement. A group of Senators re-introduced a bill last Friday to require President Obama to submit any agreement with Iran to Congress.  President Obama has already threatened to veto this bill, even though, in my humble opinion, it is a pretty modest effort by Congress to oversee the President’s power to make international agreements since it does not actually force the President to seek their approval of the agreement.  It is thus striking that even this modest law has drawn a veto threat.

The Iran Nuclear Agreement Review Act of 2015 would require the president to submit to Congress the “(1) the text of the agreement, (2) a verification assessment on Iranian compliance, and (3) a certification that the agreement meets U.S. non-proliferation objectives and does not jeopardize U.S. national security, including not allowing Iran to pursue nuclear-related military activities” (according the website of the bill’s sponsor, Senator Bob Corker).

Here’s the key provision: the bill would suspend for 60 days the President’s ability to waive or lift any sanctions on Iran.  Congress would have a chance to permanently suspend his power to waive or lift sanctions via a joint resolution of both houses of Congress.  But if Congress does not act at all, or simply approves the agreement, the President can go forward and lift whatever sanctions he otherwise has the authority to lift.

Crucially, congressional silence would (after 60 days) allow the president to go forward and implement the agreement. In political terms, it is therefore possible that a filibuster of a joint resolution in the Senate could result in the necessary silence needed to allow President Obama to implement any agreement after 60 days.

Gentle as this oversight is, it is still too much for the administration. Not only was there an immediate veto threat, but Secretary Kerry stated, ““I believe this falls squarely within the executive power of the president of the United States in the execution of American foreign policy,”    This might be correct, but it is only correct if you have a pretty robust conception of the President’s powers to make international agreements outside of the Constitution’s Treaty Clause.  While scholars have generally agreed that the President has such independent powers, the type of agreements he can make and the subjects of those agreements remain deeply uncertain and contested.

President Obama may be creating another important precedent here in favor of unilateral presidential power to make non-treaty agreements (to go along with his precedents in favor of unilateral presidential powers to use military force for humanitarian reasons).  Let’s just say he will not go down in history as a president that was deferential or respectful of congressional participation in foreign affairs.

Does Promoting Democracy in Hong Kong Violate the Principle of Non-Interference in Domestic Affairs?

by Julian Ku

A bipartisan group of US lawmakers proposed the Hong Kong Human Rights and Democracy Act last week.  The proposed law would “would enhance U.S. monitoring of Hong Kong’s autonomy and human rights and ensure that these issues remain a cornerstone of U.S. policy,” according to the bill’s chief sponsor, Rep. Chris Smith.

Reactions in Hong Kong and China are already pretty negative.

“We don’t want foreign governments or foreigners to intervene in affairs that can be handled by ourselves,” [Hong Kong Justice Secretary Rimsky Yuen Kwok-keung] said, adding that the Beijing and Hong Kong governments, Hongkongers themselves and the city’s lawmakers were the only stakeholders in the city’s political reform.”

If the bill gets closer to passage, one can imagine China will invoke the principle of “non-interference” in domestic affairs and sovereignty as an international law argument against the bill.  So this could set up an interesting contrast in views on how this principle is understood and interpreted.

In fact, the proposed bill is quite limited in scope.  All it requires is for the U.S. Secretary of State to annually certify “whether Hong Kong is sufficiently autonomous to justify separate treatment different from that accorded the People’s Republic of China in any new laws, agreements, treaties, or arrangements entered into between the United States and Hong Kong after the date of the enactment of such Act.”

It does not even threaten to change existing laws and treaties (such as the visa waiver provision for HK residents or the extradition agreement with HK).  It just threatens to limit “any new laws, agreements..treaties” (emphasis added). Nor does the proposed law actually require “genuine” democratic suffrage or compliance with the UK-China Joint Agreement or any other hard metric that the recent protests in Hong Kong had argued for.  Certification can be made as long as HK remains “sufficiently autonomous” in the opinion of the US Secretary of State and as long as he “considers” the Joint Agreement’s requirements in his certifcation.

Moreover, even this pretty easy requirement can be waived by the Secretary of State is in US national interests.  For this reason, I would be surprised if this bill becomes controversial within Congress or opposed by the State Department.

Nonetheless, it is worth asking: Is it a violation of the principle of non-interference to condition new agreements and arrangements with Hong Kong on the progress of domestic arrangements in China?  I don’t think most US international lawyers would find this gentle prodding to be a credible violation of the non-interference principle (see this useful summary of the principle from Princeton here), but I am fairly sure many Chinese international lawyers would see things differently.  If the bill progresses, we may find out.

Will Japan Embrace the “Illegal But Legitimate” View of the UN Charter’s Limits on Use of Force?

by Julian Ku

Japan has been slowly moving to modify its domestic law, both constitutional and legislative, restricting the use of its military forces outside of Japan.  In its latest political discussions, it is worth noting that Komeito, a partner to the ruling Liberal Democratic Party, has been insisting on the three “Kitagawa” principles as a basis for any new law governing the use of force overseas.  The three principles are: “legitimacy under international law, public understanding and democratic rule, and ensuring the safety of SDF personnel.”

Interestingly, the ruling party has been hesitant to fully embrace the “legitimacy under international law” requirement, which might be read to require UN Security Council authorization for most overseas uses of military force. Noting that China has a veto in that body, ruling party lawmakers would like to make sure “legitimate under international law” is given a broader meaning.

“In terms of international law, legitimacy isn’t necessarily limited to [those situations involving] a U.N. resolution,” said a senior LDP official. “We’d like to discuss what cases would be legitimate.”

The US and Western powers have used this “illegal but legitimate” analysis to justify actions in Kosovo and elsewhere.  It will be interesting to see if Japan eventually adopts some version of this approach.  It would be wise to do so from a practical perspective, since many scenarios where Japanese forces would act “overseas” including the Senkakus, Taiwan, Korea, or Syria may not qualify as “self-defense” under the U.N. Charter.  But such a move would chip away again at the UN Charter’s limits on the use of military force.

Weekly News Wrap: Monday, March 2, 2015

by Jessica Dorsey

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


Middle East and Northern Africa






Events and Announcements: March 1, 2015

by An Hertogen


  • On Tuesday, 3 MarchOpinio Juris‘ own Kevin Jon Heller will be giving a Supranational Criminal Law Lecture at the T.M.C. Asser Instituut in The Hague entitled “What is an International Crime?” The event starts at 19:00 and seating is on a first-come, first-served basis.

Calls for Papers

  • The Board of Editors of Trade, Law and Development [TL&D] is pleased to invite original, unpublished manuscripts for publication in the Winter ’15 Issue of the Journal (Vol. 7, No. 2). The manuscripts may be in the form of Articles, Notes, Comments, and Book Reviews. All manuscripts received by September 15, 2015, pertaining to any area within the purview of international economic law, will be reviewed by the editorial board for publication in the Winter ’15 issue. TL&D aims to generate and sustain a democratic debate on emerging issues in international economic law, with a special focus on the developing world. For more information, please go through the submission guidelines available at or write to editors[at]
  • International Law Weekend 2015 (ILW 2015) – the premier international law event of the fall season  – is scheduled for November 57, 2015, in New York City.  The event is sponsored by the American Branch of the International Law Association (ABILA) and the International Law Students Association (ILSA). The theme for 2015 is Global Problems, Legal Solutions: Challenges for Contemporary International Lawyers. The ILW Organizing Committee invites proposals to be submitted online on or before Friday, March 20, 2015 via the ILW Panel Proposal Submission Form located here. ILW 2015 is scheduled to be held at 42 West 44th Street on Thursday evening, November 5, and at Fordham Law School at Lincoln Center on November 6 – 7, 2015. For questions regarding ILW 2015, please contact conferences [at] ilsa [dot] org.  2015 ILW Program Committee Members: Chiara Giorgetti (University of Richmond Law School), Jeremy Sharpe (Office of the Legal Adviser, U.S. Department of State), David Stewart (President ABILA, Georgetown University Law Center), Santiago Villalpando (Office of Legal Affairs, United Nations), and Tessa Walker (ILSA).
  • The Canadian Council on International Law’s 44th Annual Conference will take place at the Department of Foreign Affairs, Trade and Development Canada in Ottawa, Canada from November 5 – 7, 2015. This year, the theme is International Law: Coherence or Chaos? International law scholars, practitioners, and graduate students are invited to submit proposals for panels or papers. All proposals should be submitted to manager [at] ccil-ccdi [dot] ca no later than March 20, 2015. More information is available here.
  • The Independent Panel on Global Governance for Health (a collaboration between the University of Oslo and The Lancet medical journal) is preparing a report to be published in The Lancet in 2015. The topic is the implications for health and the social determinants of health of trade and investment treaties, agreements, and negotiation processes. International trade and investment agreements can have major effects – both positive and negative – on people’s health and wellbeing.  These agreements are formalized and interpreted according to legal procedures that are complex and technical. Powerful states and corporations exert a strong influence on the outcome because of the greater resources they bring to the negotiating table. As a result, affected communities and stakeholders may be excluded from the process. The Panel hereby invites submissions of evidence on this topic from all interested parties – academia, civil society, business, public administration etc. Submissions may be in various forms, ranging from peer-reviewed research papers to qualitative or quantitative evidence of the implications for health and the social determinants of health of trade and investment treaties, agreements, and negotiation processes. Also welcome are descriptive essays, personal stories, news and media articles, visual items etc. Submissions should describe the context, methods, and processes involved in gathering the evidence; specific lessons; and wider global lessons. Submissions may also include recommendations for action; these should be as specific as possible, with regard to identified actors, processes etc. Please send your submission to: globalgovhealth-contact [at] sum [dot] uio [dot] no by April 30, 2015.

Our previous events and announcements post 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. 

Guest Post: The Mirage of Hybrid Justice in Africa?

by Patryk Labuda

[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies in Geneva. Before joining the Geneva Academy of International Humanitarian Law and Human Rights, he worked in the Democratic Republic of Congo, Sudan and South Sudan.]

Although international criminal law is increasingly assimilated with the International Criminal Court (ICC), hybrid justice remains surprisingly common thirteen years after the establishment of the landmark Special Court for Sierra Leone. Last month a UN-mandated International Commission of Inquiry made headlines when it recommended a hybrid tribunal for the Central African Republic (CAR). Citing the collapse of the country’s judicial system, Philip Alston, one of the Commission’s members, suggested that the international community should ‘act fast’ to ‘fund a tribunal’ if it wanted to break the ‘cycle of impunity’ fueling the conflict. His plea came on the heels of similar calls for a hybrid judicial mechanism in South Sudan, which has received the endorsement of international advocacy groups and the UN in recent months.

It is clear that the establishment of the ICC, the only permanent court with (potentially universal) jurisdiction over international crimes, has not eliminated the need for more tailored, country-specific responses to mass violence. Different kinds of hybrid tribunals have operated, or continue to operate, in the aftermath of violence in Bosnia and Herzegovina, Cambodia, Indonesia (East Timor), Iraq, Lebanon, Chad and Kosovo. What is less known is that blueprints for mixed international-national jurisdictions have also emerged in many other conflict- and post-conflict settings, including Liberia, Burundi, Kenya, the Democratic Republic of Congo (DRC), Sudan and Somalia. Two names can now be added to that long list of African states: South Sudan and CAR.

What these proposals have in common is that not one of these hybrid tribunals has actually been set up, despite – in some cases – years of lobbying by local civil society groups and oft-repeated assurances from African governments that accountability is essential for national reconciliation. This prompts the question: why are hybrid tribunals so frequently debated but so rarely established in the aftermath of African conflicts?

Hybrid and internationalized tribunals emerged in the early 2000s as a corrective to other forms of international criminal justice. There is no single definition of ‘hybridity’, but the notion is used conventionally to refer to institutions that mix national and international elements. Unlike purely international courts, such as the International Criminal Tribunal for Rwanda or the ICC, hybrid tribunals have either mixed jurisdictional bases (domestic and international law) or mixed staffs (domestic and international judges or prosecutors). The hope was that this blending of international and local elements would allow such tribunals to overcome the limitations of both purely domestic courts and fully international bodies.

International justice activists advance three broad claims about hybrid justice. First, by bringing together local and international partners, mixed tribunals have the potential of building domestic capacity and increasing the legitimacy of prosecutions among affected populations. Second, despite the growing number of ratifications of the ICC Statute, hybrid tribunals remain an important alternative where the ICC cannot exercise jurisdiction. Last but not least, the hybrid model should decrease the tension between international demands for accountability and state sovereignty. By giving states a say in the design of hybrid mandates, it was hoped that state concerns about international criminal law could be adequately addressed.

Debates around proposed hybrid tribunals in Africa reveal that, if there is still some consensus on the first two points, reconciling state interests with internationally-driven accountability has proved elusive in practice.

Contrary to expectations, hybrid justice now looks like the most invasive form of international intervention. Many African governments – Kenya being the prime example – understand that the prospect of a hybrid tribunal is far less appealing than the much-demonized ICC. Notwithstanding the high-profile standoff between the AU and the ICC, individual African states have learned to skillfully manipulate the ICC to their advantage. By outsourcing sensitive cases to The Hague while trying minor perpetrators before domestic courts, the governments of the DRC, Uganda, Kenya and Cote d’Ivoire have all, to different degrees, used the ICC’s interventions to bolster their domestic standing. Due to the ICC’s limited enforcement powers, it is relatively easy for states to project an image of compliance where cooperation is convenient, and obstruct the ICC’s investigations where national or regional interests are at stake.

It is doubtful that hosting a hybrid tribunal on one’s own territory offers the same flexibility. Established for more or less defined periods of time (mandates vary), hybrid tribunals operate under the watchful eye of international staff, which prevents national authorities from controlling investigations and prosecutions. A key stumbling block in negotiations over the establishment of hybrid tribunals in Africa, notably in the DRC, has been the composition of their staff. Echoing political disputes from the Extraordinary Chambers in the Courts of Cambodia, where a preponderance of national staff allowed Cambodian magistrates to outvote their international peers, the Congolese government has rejected UN attempts to secure a majority of international judges and prosecutors. Loath to finance projects it cannot control, the international community has sought to craft mandates that give them an outright majority, for instance in Kenya and Liberia. Early reports from CAR suggest this may emerge as a sticking point in negotiations between the government and international donors. While the Central African authorities have emphasized hybridity and the need to bolster domestic capacity, Alston’s remarks imply that a more robust international presence will be required due to a lack of independent national judges.

The obstacles to establishing hybrid tribunals in Africa vary from country to country, so it is important to not overstate the dismal success rate of such proposals. As with the ICC, complex political dynamics at the domestic, regional and international levels explain these setbacks. However, it is precisely the AU’s repeated condemnations of the ICC, coupled with its advocacy of ‘African solutions to African problems’, that prompts a critical look at its efforts to pursue hybrid justice.

Though last week’s decision to commit Hissène Habré to trial has rightly been praised by human rights advocates, it is important to remember the convoluted process by which the Extraordinary African Chambers in Senegal were established. Similar problems have arisen in relation to Darfur, Kenya and South Sudan. Despite years of mediation led by Thabo Mbeki, the Sudanese government’s refusal to act on the AU’s calls for a hybrid tribunal has elicited practically no follow-up from the AU. In Kenya, the AU’s support for President Kenyatta has been a one-way street, with no sustained pressure to resurrect the Waki Commission’s idea of a Special Tribunal (or a purely domestic accountability mechanism). This also explains why last month’s decision to ‘indefinitely shelve’ the report of the AU’s South Sudanese Commission of Inquiry has caused so much consternation. The AU appears, yet again, to be prioritizing peace over justice.

The Central African Republic is the next test case for the viability of hybrid justice in Africa. At first blush, the prospects of the proposed ‘Special Criminal Court’ in CAR – where the interests of the national government, the AU and international actors coincide – seem good. The transitional government signed a memorandum of understanding with the UN several months ago, and investigations would focus on non-state actors: rebels from the Seleka and anti-balaka movements. Yet the track record of African hybrid tribunals suggests a good dose of caution. Progress on legislation needed to bring the Special Court into existence has been slow, and it remains unclear who will fund a tribunal operating alongside the ICC. One thing is certain, the money will not come from the AU which is busy laying the groundwork for its institutional alternative to the ICC: the revamped African Court of Justice and Human Rights with criminal jurisdiction and immunities for heads of state and senior officials.

In the end, there is a distinct possibility that the Central African court will join the ranks of most other African hybrid ventures, which remain in the realm of promising but unfulfilled ideas. If this happens, it might well be time to ask whether hybrid justice on the continent resembles something of an African mirage… as one approaches and strains for a closer look, the prospect of justice recedes on the horizon.