Archive for
April, 2015

Guest Post: Landmark Sovereign Debt Restructuring Award

by Laurie Achtouk-Spivak and Paul Barker

[Laurie Achtouk-Spivak is a member of the Bar in Paris and New York. She acts as counsel and advocate in investment treaty arbitrations before ICSID as well as other arbitration institutions. She teaches investor-State dispute settlement at the University of Poitiers. She also regularly publishes on investment treaty arbitration and is a member of the Peer Review Board of the ICSID Review. Paul Barker is a member of the Bar in New York. He has acted as counsel to States in ICSID arbitrations and international proceedings arising out of sovereign debt restructurings. His publications and research interests include the standard of review and legitimate regulatory interests in investment treaty arbitration, and transnational human rights litigation. The authors were members of Cleary Gottlieb’s counsel team for the Hellenic Republic in the Poštová arbitration. The views expressed here are their own and do not necessarily reflect those of their firm, the Hellenic Republic or any of their firm’s other clients.]

On 9 April 2015, an International Centre for Settlement of Investment Disputes (“ICSID”) arbitral tribunal dismissed a case arising out of Greece’s sovereign debt exchange for lack of jurisdiction. The landmark decision is the first time that an ICSID tribunal has declined jurisdiction over interests in sovereign bonds.

The award was made in Poštová banka, a.s. and ISTROKAPITAL SE v. Hellenic Republic, a bilateral investment treaty (“BIT”) arbitration initiated in 2013 by a Slovak bank and its former Cypriot shareholder under the Slovak Republic-Hellenic Republic BIT (“Slovakia-Greece BIT”) and the Cyprus-Hellenic Republic BIT. The claimants had sought compensation for illegal expropriation, failure to accord fair and equitable treatment, and violation of umbrella clauses in respect of the bank’s interests in Greek government bonds (“GGBs”) that were exchanged in 2012.

Beyond the headline, the decision is an important reminder that not every kind of asset qualifies as a protected investment under a potentially applicable investment treaty or the ICSID Convention, and of the basic yet fundamental rule of treaty interpretation that a BIT’s terms must be interpreted in good faith within their context and in light of the treaty’s object and purpose. More generally, the conclusion by a majority of the Tribunal that the bank’s interests in GGBs did not meet the objective requirements of contribution and risk for the purposes of Article 25 of the ICSID Convention may have broader implications for treaty-based claims asserted by other holders of interests in restructured sovereign debt.

No Investment Under The BIT

In deciding whether it had jurisdiction ratione materiae (subject-matter jurisdiction) over the dispute, the Tribunal had to determine as a matter of treaty interpretation whether the interests in the GGBs held by the Slovak claimant, Poštová banka, qualified as a protected investment under the definition of investment in Article 1(1) of the Slovakia-Greece BIT, specifically its chapeau and the categories of assets listed thereunder. As we discuss below, the Tribunal found that the bank’s interests in GGBs did not fall within the definition and therefore dismissed the claim.

The chapeau of Article 1 of the Slovakia-Greece BIT provides that “[i]nvestment means every kind of asset and in particular, though not exclusively includes: (…).” Article 1(1)(b) refers to “shares in and stock and debentures of a company and any other form of participation in a company.” Article 1(1)(c) refers to “loans, claims to money or to any performance under contract having a financial value.” (para 278)

Although the Tribunal agreed with Claimants that Article 1 of the BIT contains a broad asset-based definition rather than a closed list or exhaustive description (para 286), the Tribunal noted that the careful drafting of categories of protected investments in the subsections demonstrated that there were limits to the definition. (para 294) In this regard, the Tribunal considered Greece’s treaty practice, observing that some Greek BITs refer to the term “loans,” others to “long term loans,” others to loans “connected to an investment”, whilst others exclude the term “loan” altogether. (para 292) Accordingly, the Tribunal underlined the importance of the principle of effective treaty interpretation as follows:

  1. The list of examples provided by the Slovakia-Greece BIT must, thus, be considered in the context of the treaty and be given some meaning together. Otherwise, if the interpretation stops by simply indicating that any asset is an investment, the examples will be unnecessary, redundant or useless. […]

The Tribunal was further persuaded by the fact that Article 1(1)(b) of the BIT refers to “shares in and stock and debentures of a company and any other form of participation in a company” but not to sovereign debt or bonds issued by the State parties. The Tribunal found that this language in the Slovakia-Greece BIT differed significantly from the Argentina-Italy BIT at issue in Abaclat and Ambiente Ufficio, in which ICSID tribunals upheld jurisdiction over sovereign bonds. (para 304) For example, whereas Article 1(c) of the Argentina-Italy BIT includes “obligations, private or public titles or any other right to performances or services having economic value, including capitalized revenues,” Article 1(1) of the Slovakia-Greece BIT does not refer to a general concept such as “obligations,” or to “public titles”. (paras 306-308)

In the absence of similar language to the Argentina-Italy BIT, the Tribunal could not reach the same conclusions as in Abaclat and Ambiente (or for that matter the more recent Alemanni case), holding that:

an interpretation of the text and context of Article 1(1) leads the Tribunal to consider that the State parties to the treaty wanted an ample definition of what could constitute an investment, but within certain categories that are also broad, but not unlimited. Otherwise, the examples could be expanded to include any asset whatsoever, and would become useless or meaningless. (para 314)

As part of the interpretative exercise, the Tribunal paid particular attention to the special features and characteristics of sovereign debt that distinguish it from private debt, (318-323) including that creditors’ security and legal recourse against a sovereign debtor is much more limited, and there is a high degree of political influence and risk, because:

[a] sovereign State engages in much more complex decisions, both in negotiating and structuring the debt and in payment thereof, and repayment is subject not only to the normal credit risk of any credit operation, but also to political decisions that are extremely sensitive for the inhabitants of the given State, such as a tax increase or a reduction in public expenditure or investment to repay the sovereign debt. (para 320)

The Tribunal thus concluded:

In sum, sovereign debt is an instrument of government monetary and economic policy and its impact at the local and international levels makes it an important tool for the handling of social and economic policies of a State. It cannot, thus, be equated to private indebtedness or corporate debt (para 324)

The Tribunal also noted the practical realities of sovereign debt, including that its issuance is subject to specific and strict regulations and that secondary market trading and holding of sovereign debt is also heavily regulated. (paras 325-326, 329) The Tribunal noted that sovereign debt financial instruments are “easily tradable” on the secondary market, independent of the issuing State, and that creditors therefore change many times during the life of the financial instrument. (para 327)

The Tribunal agreed with Greece that sovereign bonds are “different from forms of participation in corporations, and therefore their exclusion from the definition of investment in a given treaty indicates that the contracting parties did not intend to cover these types of assets.” (para 333)

Having performed its analysis of the treaty language and practicalities of sovereign debt issuance and trading, the Tribunal reasoned that:

  1. Neither Article 1(1) of the Slovakia-Greece BIT nor other provisions of the treaty refer, in any way, to sovereign debt, public titles, public securities, public obligations or the like. The Slovakia-Greece BIT does not contain language that may suggest that the State parties considered, in the wide category of investments of the list of Article 1(1) of the BIT, public debt or public obligations, much less sovereign debt, as an investment under the treaty.

Nor did the sovereign bonds at issue fall within Article 1(1)(c) of the BIT (“loans, claims to money or to any performance under contract having a financial value”), because there was inter alia no claim to money, no contractual privity or contractual relationship between Poštová and Greece that could arise out of the bond issuance or trading process. (paras 338-349)

By adopting a rigorous approach to treaty interpretation that focuses on the terms in their context and in light of the BIT’s object and purpose in order to give an effective meaning, the award therefore has wider significance in demonstrating that not every kind of asset qualifies as a protected investment, including where the treaty contains a broadly drafted asset-based definition, which is common in BITs.

No Investment Under The ICSID Convention

For an ICSID arbitral tribunal to have jurisdiction ratione materiae, it must find that the dispute concerns an investment protected under both the underlying BIT and the ICSID Convention. Because the Poštová Tribunal found no jurisdiction under the Slovakia-Greece BIT, it was not necessary to consider the position under the ICSID Convention in order to dispose of the case. Nevertheless, a majority of the Tribunal made important observations on the treatment of sovereign debt under the ICSID Convention.

As noted by the Tribunal, a number of ICSID tribunals have held that there are “objective” characteristics of an “investment” under Article 25 of the ICSID Convention irrespective of any “subjective” definition of an investment agreed in the BIT, namely (i) a contribution of money or assets, (ii) duration and (iii) risk. (paras 351-359)

Having concluded that the “subjective” test pursuant to Article 1 of the BIT was not met – and therefore the Tribunal lacked jurisdiction over the dispute – a majority of the Tribunal nevertheless stated that the claimants would also have failed to satisfy the “objective” requirements for an investment to be protected under the ICSID Convention. (paras 360, 371) Specifically, “the element of contribution to an economic venture and the existence of the specific operational risk that characterizes an investment under the objective approach” were not present. (para 371) Accordingly, the Tribunal could not have asserted jurisdiction even if the BIT had been drafted broadly enough to cover sovereign debt.

Whereas the majority considered an investment “in an economic sense, is linked with a process of creation of value”, the arbitrators found that Poštová’s purchase of interests in GGBs made no contribution to an economic venture. (paras 361, 371) In this regard, the majority noted:

  1. The Claimants have not argued that the money Poštová banka paid for the GGB interests, even if considered as ultimately benefitting Greece, was used in economically productive activities. Rather, it appears that the funds were used for Greece’s budgetary needs, and particularly for repaying its debts…

Citing to Michael Waibel’s scholarship, the Tribunal noted the importance of the distinction between sovereign bonds that are used for general funding purposes and those used for specific public works or services. (para 364)

The Tribunal observed that the ICSID tribunals in Fedax v. Venezuela, CSOB v. Slovakia, Joy Mining v. Egypt and Alps Finance v. Slovak Republic have adopted the same approach in distinguishing between protected investments connected with a particular economic operation, on the one hand, and instruments or contracts that are not linked with an economic venture and are therefore do not satisfy the objective test, on the other. (para 365)

Regarding the risk element, the majority held that investment risk requires the presence of operational risk, explaining:

  1. Under the objective approach, commercial and sovereign risks are distinct from operational risk. The distinction here would be between a risk inherent in the investment operation in its surrounding – meaning that the profits are not ascertained but depend on the success or failure of the economic venture concerned – and all the other commercial and sovereign risks.

The majority’s view was that acquisition of interests in sovereign bonds would not amount to taking any operational risk. (para 371)

In sum, had the objective requirements of contribution and risk been applied, the Tribunal would not therefore have had jurisdiction over the dispute under the ICSID Convention, regardless of the language in the Slovakia-Greece BIT. This conclusion will undoubtedly give pause to other holders of interests in sovereign debt before initiating arbitration proceedings under other investment treaties.

Weekly News Wrap: Tuesday, April 28, 2015

by Jessica Dorsey


Middle East and Northern Africa

  • Israel fired on seven United Nations schools during the 2014 Gaza war, killing 44 Palestinians who had sought shelter at some sites, while Palestinian militants hid weapons and launched attacks from several empty U.N. schools, a U.N. inquiry found.
  • The humanitarian situation in Yemen has become catastrophic, relief officials said on Monday, as Saudi-led aircraft pounded Iran-allied Houthi militiamen and rebel army units for a second day, dashing hopes for a pause in fighting to let aid in.
  • Israel invited bids on Monday to construct 77 new homes in two settlements on occupied land in East Jerusalem, drawing a swift Palestinian condemnation.





  • Australian ties with Indonesia have become strained after nine drug traffickers met their families for what could be the final time at an Indonesian maximum security prison on Tuesday, as Jakarta rejected international pleas for clemency and ordered their executions to proceed, possibly within hours.


Events and Announcements: April 26, 2015

by Jessica Dorsey


  • The Graduate Institute of International and Development Studies, Geneva (IHEID), International Law Department will hold a conference entitled “International Law and Time” in Geneva, Switzerland, from 12-13 June 2015. Registration for the conference is now open. For more information please visit the conference website or email
  • A one-day conference entitled The European Convention on Human Rights and General International Law is being organized jointly by the European Court of Human Rights and the European Society for International Law. The programme includes presentations by ten judges from the European Court of Human Rights, as well as presentations by judges from the International Court of Justice, and other judges and international law scholars. More information here.
  • BIICL is organising, together with Professor Andrea Bianchi, an evening seminar on Thursday, 14 May (from 5.30 to 7.00pm) entitled: ‘Interpretation in International Law: The Object, the Players, the Rules, and the Strategies’ . The seminar is linked to the recently published book on ‘Interpretation in International Law’ (OUP). The event will be part of our ‘Temple Garden Chamber Series on International Adjudication’ and you can find more info here.
  • The ALMA Forum is coming up and the next session will focus on the international law aspects of the situation in Yemen. The speakers will be Yoni Eshpar (UNSCO) – “UN Mediation in Yemen” and Larry Maybee (ICRC) – The Evolving Conflict in Yemen – IHL Implications”. The session will be held on April 29th, 2015, 18:30 (local time) in the IDC, Herzliya.
  • SOAS Academic Summer School is offering a new range of law courses for 2015. Courses include: International Law: Contemporary IssuesLaw and Multiculturalism 1Law and Multiculturalism 2Gender, Conflict and Law. The courses are taught by experts in the field including Dr Gina Heathcote, Professor Werner Menski, Dr Muin Boase to name but a few. The courses will allow you to acquire solid foundations in the topic of your choice, through a mixture of academically rigorous lectures, readings, discussions and activities, totalling 46 contact hours. Activities will include film screenings and debates, guest lectures and visits which allow you to get a fresh perspective, in a dynamic learning environment.

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: April 11-25, 2015

by Jessica Dorsey

The last two weeks of posts at Opinio Juris have seen several items from Julian, including on his favorite treaty reservation ever in the Hague Child Support Treaty and more on the HCST and the role of US states here. He also asked the burning question of whether the new “Bipartisan Trade Priorities and Accountability Act”  violate the U.S. Constitution’s bicameralism and presentment requirements as stated by the U.S. Supreme Court in INS v. Chadha?

Kristen highlighted the new report entitled “Nuclear Weapons: the State of Play 2015” ahead of the upcoming NPT review conference, while Kevin weighed with his thoughts on the current petition at NYU to keep Harold Koh from teaching human rights (here and here).

We featured two guest posts, the first from William S. Dodge discussing whether the Alien Tort Statute is headed back to the US Supreme Court and the second from Natia Kalandarishvili-Mueller on Russia’s treaties with Abkhazia and South Ossetia, Georgia.

I wrapped up the news (here and here), offered the Events and Announcements here, and An did so here.

Thanks for following us on Opinio Juris and have a fantastic weekend!

Students, Junior Faculty, and Human Rights Scholars are Delicate Flowers

by Kevin Jon Heller

At least according to Fionnuala Ní Aolain, criticising the counter-petition that I and hundreds of others signed in defense of Harold Koh. Her entire Just Security post is deeply problematic; let’s go through it systematically.

When asked to sign, I articulated a deep discomfort with the petition and the precedent it sets. I strongly believe that any academic should be able (as should any student) to openly and fully raise any issues about the decision(s) a person made while wearing a government lawyer’s hat. The capacity to question and unreservedly critique is particularly important when the decisions made were controversial.

Actually, she doesn’t believe any academic should be able “to openly and fully raise any issues about the decision(s) a person made while wearing a government lawyer’s hat.” If she did, that belief would extend to academics who believe — rightly or wrongly — that the petition calling for NYU to rescind its offer to Koh to teach international human-rights law fundamentally misstates Koh’s role in the drone program. Why are the academics who signed the counter-petition not entitled to the same freedom as those who signed the original one?

I also expressed my discomfort as a non-American international lawyer, echoing the views of many others within and outside the United States, that one can reasonably take the position that the US government and its targeted killing programs breached international and human rights law standards.

As does the counter-petition, which specifically acknowledges “that individuals can have significant and understandable concerns about the use of lethal force by the United States, including the U.S. drones program,” and that “U.S. actions must conform to a demanding application of constitutional law and international law.”

The bottom line is that I am not fully in a position to judge, but neither really are those students who chose to express their views as they did, nor are the academics who were asked and chose to sign the petition. Petitions that purport to know what is unknowable and not in the public domain are neither good individual defenses, nor are they robust defenses that advance the protection of human rights in the United States or elsewhere.

True, we do not know exactly what Koh did. But that did not stop the signatories of the original petition from claiming that Koh “directly facilitated the extrajudicial, unconstitutional killing of Anwar al-Aulaqi, an American citizen killed by a drone strike in Yemen in 2011” and generally played a significant role “in crafting and defending what objectively amounts to an illegal and inhumane program of extrajudicial assassinations and potential war crimes.” Yet Ní Aolain says not a word about the propriety of the signatories accusing Koh of being a murderer (and war criminal); her criticism is directed solely at the scholars who had the temerity to disagree with that accusation. And she simply ignores Ryan Goodman’s post on the same blog, which makes clear that what is publicly known about Koh favours the counter-petition, not the original one…

Sobering State of Play for Upcoming NPT Review Conference

by Kristen Boon

A new report entitled “Nuclear Weapons: the State of Play 2015” makes for very sober reading. The authors are Gareth Evans, Tanya Ogilvie-White and Ramesh Thakur, and the report was written for the upcoming NPT review conference.

Gareth Evans is on a world-tour releasing the report, and yesterday I saw him at the International Peace Institute in New York. You can watch his excellent presentation here.   He noted that five years ago, there was reason for optimism on the disarmament front: President Obama gave his famous Prague speech, the Test Ban Treaty was ratified by the Senate, and new START agreements were put in place.  All signs of progress. By 2012, optimism had started to fade, and now it has all but disappeared (with the important exceptions of progress on negotiations with Iran, and a new effort to focus on the humanitarian consequences of Weapons of Mass Destruction (WMDs). There is a clear reemergence of cold-war thinking about the deterrent utility of WMDs.  Moreover, there are increasing risks due to new technologies and the potential of sabotage.

The report also illustrates that States are not very serious about disarmament.  They have not committed to a timetable on reducing stockpiles, and at present, every nuclear power state – the 5 States party to the NPT, and the 4 outside – foresee indefinite retention of their WMD.  While the report notes some progress on verification, there has been little to none with regards to transparency and irreversible dismantlement of weapons.  The global total of warheads is now approximately16,400. Moreover, we are seeing Asian states increasing their stockpiles, although Evans noted they are proceeding from a small base.  The report is very well organized with a color-coded progress rating on multiple issue areas, and well worth reading.

Despite – or rather because of – the seriousness of the current situation, Evans, and discussant Angela Kane, UN High Representative for Disarmament Affairs, emphasized that it is an extremely important time to maintain energy and bottom-up pressure.  Let’s hope this guide becomes a useful tool for negotiators at the meetings starting next week.

Favorite Treaty Reservation, Ever!

by Julian Ku

The NYTimes has a piece today on how Idaho’s refusal to implement the Hague Child Support Treaty is causing problems for the U.S. and for Idaho as a whole.  I hope to have more to say about this treaty later. For now, in looking at the treaty, I wanted to point readers to one of the more amusing U.S. treaty reservations I’ve ever run across.  In giving its advice and consent, the U.S. Senate made two reservations, one of which follows:

(2) In accordance with Articles 44 and 62 of the Convention, the United States of America makes a reservation that it objects to the use of the French language in communications between the Central Authority of any other Contracting State and the Central Authority of the United States of America.

The treaty actually allows a country to “object” to the use of either French or English and there is no doubt a serious purpose for allowing this kind of objection.  But there is something great about an official objection “to the use of the French language”.  Indeed, I am glad to see that the U.S. was not the only country to object to French for communications under this treaty.  It is joined by the Czech Republic, the Republic of Estonia, the Hellenic Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, Hungary, the Kingdom of the Netherlands, the Republic of Poland, the Republic of Slovenia, the Slovak Republic, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland in this objection.

As a long-suffering student of the language, I’ve often wanted to “object” to the use of French. I am glad the U.S. Senate (and all those other countries in Europe) share my Francais-phobia.

Guest Post: The Status of the Territory Unchanged: Russia’s Treaties with Abkhazia and South Ossetia, Georgia

by Natia Kalandarishvili-Mueller

[Natia Kalandarishvili-Mueller is a Lecturer in Humanitarian Law at Tbilisi State University, Institute of International Law, Faculty of Law, and a PhD Candidate at the University of Essex, School of Law. The views expressed in the post are that of the author only.]

Russia still occupies twenty percent of Georgian territory. On 24 November 2014, the Russian Federation and Abkhazia, one of Georgia’s breakaway region, signed a Treaty on Alliance and Strategic Partnership. The document is an avenue for Abkhazia’s incorporation into Russia’s military, economic, social and legal space. Particularly, it aims to create a common security and defence system and armed forces of Russia and Abkhazia in the form of joint defence and border protection forces and unifies standards of warfare management and law enforcement. Moscow also envisages the breakaway region’s support with military equipment. The provisions provide for the harmonization of the breakaway region’s legislation not only with that of Russia, but also with the standards of the Eurasian Economic Union. Russia also guarantees helping Abkhazia not only with its international recognition, but also facilitating Abkhazia’s membership in international organizations. On 18 March 2015, Russia and the other one of Georgia’s breakaway regions, South Ossetia, also signed a Treaty on Alliance and Integration (and here) containing basically the same provisions.

The Government of Georgia regards both these treaties as Russian annexation of Georgian territories (here and here). Georgia’s view is not without grounds. As a whole, the aforementioned documents also undermine the right to return and the right to self-determination of ethnic Georgians and their descendants who have been forced to flee their homes during the 1990s and 2008 armed conflicts. At present, the issue of the ethnic cleansing of Georgians is dealt with by the ICC, but only in the context of the 2008 armed conflict. The ICC Prosecutor’s Office Report on Preliminary Examination Activities (December 2014) observed that

[…] there is a reasonable basis to believe that South Ossetian forces carried out a widespread and systematic attack against the ethnic Georgian civilian population in South Ossetia and adjacent areas in the context of the armed conflict in the period from August 2008 through October 2008 that amounted to the crime against humanity of forcible transfer of ethnic Georgians under article 7(1)(d). There is a reasonable basis to believe that these forces also committed war crimes of pillaging under 8(2)(b)(xvi) and/or article 8(2)(e)(v) and destroying civilian property belonging to ethnic Georgians under article 8(2)(a)(iv) and/or article 8(2)(e)(xii) in the same period. (para. 140)

Hence, from the perspective of international law, the signed treaties raise complex issues such as the legality of the use of force, state formation, the management of natural resources, and the validity of these very treaties in light of the VCLT of 1969, occupation law, territorial annexation and the legality of self-determination of these territories. This post chooses to focus on the last three aspects, namely the interplay of the principles of annexation and self-determination in light of occupation law. Two questions may, therefore, be posed in light of the signed treaties:

  1. According to International Humanitarian Law (IHL), what is the relationship between occupation law and annexation of territory?
  2. What is the relevant legal framework for self-determination in international law and how may it be connected with occupation law?


Occupation Law and the Annexation of Territory

In light of the first question, I argue that even when an instance of annexation of territory takes place, the situation of occupation continues from the perspective of IHL, and the responsibility of the occupying power vis-à-vis the civilian population persists. Hence, no matter what type of treaty is forged or which agreements are achieved by Russia and the breakaway regions of Georgia, Abkhazia and South Ossetia will still remain occupied in light of Article 42 HR 1907. This stance echoes the reading of Article 47 of the GC IV, which states that:

Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.

Likewise, the commentary to Article 47 regards the relationship between situations of occupation and those of annexation in the following way:

[…] an Occupying Power continues to be bound to apply the Convention as a whole even when, in disregard of the rules of international law, it claims during a conflict to have annexed all or part of an occupied territory.

Dinstein, too, considers that an occupant cannot take the title, i.e. the possession of the territory it occupies. The displaced sovereign, therefore, remains to be holding the title de jure and the annexation of the occupied territory by the occupant is prohibited (Y. Dinstein, The International Law of Belligerent Occupation, Cambridge University Press, 2009, p. 49). Thus “any unilateral annexation of an occupied territory – in whole or in part – by the Occupying Power would be legally stillborn” (ibid. p. 50). Therefore, IHL does not fall mute, as it bases its application on the facts on the ground. The fact that Russia continues to exert effective control over Abkhazia and South Ossetia in light of Article 42 HR 1907 cannot be swept under the carpet. Even if Russia considers signing these treaties to be valid because it has herself recognised Abkhazia and South Ossetia as sovereign states, in light of the separability of ius ad bellum and ius in bello, for IHL the situation remains unchanged:

This complete separation between ius ad bellum and ius in bello implies that IHL applies whenever there is de facto armed conflict, however that conflict can be qualified under ius ad bellum, and that no ius ad bellum arguments may be used in interpreting IHL. (M. Sassòli, A.A Bouvier, et al., How Does Law Protect In War? ICRC, Vol. I, 2006, p. 103)


Occupation Law and Self-Determination

In light of the second question, I argue that a situation of occupation may end with self-determination. However, resorting to self-determination may only be justified once the effective control of the occupant over the territory is completely relinquished and the process of self-determination is free from any third-party interference, particularly by the former occupant. Furthermore, self-determination, if exercised contrary to the international law principles of state sovereignty and territorial inviolability, undermines these very principles. In 1970, the Secretary General of the UN stated that:

… as far as the question of secession of a particular section of a Member State is concerned, the United Nations attitude is unequivocable. As an international organisation, the United Nations has never accepted and does not accept and I do not believe it will ever accept a principle of secession of a part of a Member State. (U. Thant, “Secretary General’s Press Conferences” (1970) 7:2 UN Monthly Chronicle 34 at 36)

There are two forms of self-determination: external and internal (A. Cassese, Self-Determination of Peoples: A Legal Reappraisal, Cambridge University Press, 1995, p. 5). Internal self-determination means that an entity establishes its self-government within the internationally recognized borders of a state (C.A. Monteux, Institution Building in Kosovo: the Role of International Actors and the Question of Legitimacy, London School of Economics and Political Science, PhD thesis, 2009, p. 90). In practice, internal self-determination can take various forms, from simple cultural autonomy to the canton system in Switzerland (C. Dominicé, The Secession of the Canton of Jura in Switzerland, in Secession: International Law Perspectives, in M. G. Kohen (ed.), Cambridge University, 2006, pp. 453–469).

External self-determination, on the other hand, means that an entity determines its status under international law, establishes its position among the international community and regulates its relation with other states free from the intervention of any state (supra, C.A. Monteux, Institution Building in Kosovo: the Role of International Actors and the Question of Legitimacy, p. 90). Direct recourse to external self-determination (i.e., secession) could undermine not only the principles of sovereignty and territorial integrity, as mentioned above, but render the whole concept of self-determination unjust. As such, this right has been linked to the colonial period and was aimed to free the people from the oppressing regimes. In its decision, the Supreme Court of Canada makes this point explicit:

International law contains neither a right of unilateral secession nor the explicit denial of such a right, although such a denial is, to some extent, implicit in the exceptional circumstances required for secession to be permitted under the right of a people to self-determination, e.g., the right of secession that arises in the exceptional situation of an oppressed or colonial people […]. (Reference RE Secession of Quebec Supreme Court of Canada (1998) 2. S.C.R. 217 §112)

Further, the Canadian Supreme Court views external self-determination as a step of last resort in particular situations:

The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination – a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. (ibid., § 126)

It has to be mentioned that the circumstances which would pronounce the conditions for external self-determination in international law lack clarity. This is also evidenced by the stance the ICJ took in the advisory opinion on Accordance of International Law of the Unilateral Declaration of Independence in Respect of Kosovo, when it only dealt with the issue of whether or not Kosovo’s unilateral declaration of independence was in accordance with international law (§ 49-56 and § 82-83). Based on arguments of those in favor of external self-determination, Borgen summarized one possible way such a rule could be formulated:

“Any attempt to claim legal secession “that is, where secession trumps territorial integrity” must at least show that:

  1. 1. the secessionists are a “people” (in the ethnographic sense);

  2. 2. the state from which they are seceding seriously violates their human rights; and

  3. 3. there are no other effective remedies under either domestic law or international law” (C.J. Borgen, Kosovo’s Declaration for Independence: Self-Determination, Secession and Recognition, ASIL Insights, Issue 2, Volume 12, February 29, 2008 available here)

In the context of de-colonisation, the concept of self-determination meant that colonies were allowed to “secede” and form a state on their own. But when it comes to “communities that are not colonies and within existing states, self-determination means ‘internal self-determination’, the pursuit of minority rights within the existing state” (C.J. Borgen, States and International Law: The Problems of Self-determination, Secession, and Recognition in B. Cali (ed.), International Law for International Relations, Oxford, 2009, p. 207).

Therefore, before directly leaping to claims of secession, internal self-determination has to be exercised. In this context, the demographic situation of the territory must not be changed and all those who lived there and who were forcibly transferred away from it have to have a say in the future of its status. At least this is what permeates the logic of international law. This would respectively apply to the Georgians and their descendants who were evicted from Abkhazia and South Ossetia and who were the victims of ethnic cleansing, both during the 1990s armed conflicts and the 2008 war.

Examining self-determination and occupation law in tandem points to the fact that it has to be viewed in light of the element of consent, i.e. who gives consent of the presence of the hostile state on the territory. The lack of consent to be present on one’s territory during military occupation means the previous power/sovereign is absent from the territory and does not exercise effective control over it as any state ought to over its own territory. So that consent is regarded valid, it must not be coerced and be extended by the recognised government of the recognised state (E. Benvenisti, The International Law of Occupation, Oxford University Press, 2012, p. 67).

When an occupant claims not to have effective control over the territory, but remains on the territory either by an alleged invitation of the de facto regime or by a drawn-up treaty, not only the legality of the regime has to be questioned, but also the validity of the treaty has to be examined in light of the VCLT.

In my view, these are the points that bring to the forefront the tension between occupation law and the principle of self-determination. Any recourse to the right of self-determination of a territory should be done only once a situation of occupation has completely ended and even then it should only be exercised without third-party intervention in addition to restoring the original demographic situation. During military occupation, when elections or the determination of the political future of the occupied territory are underway without the genuine consent of the ousted government, the situation on the ground continues to be one of occupation.

[This post has been slightly revised from the previous version that was posted.]

Weekly News Wrap: Monday, April 20, 2015

by Jessica Dorsey


Middle East and Northern Africa




  • Poland has summoned the United States’ ambassador in Warsaw over an article written by a top U.S. intelligence official on Poland’s alleged responsibility for the Holocaust during World War Two, a foreign ministry spokesman said on Sunday.
  • After months of positive progress, the two and a half-year-old peace process in Colombia between the government and rebel group the Revolutionary Armed Forces of Colombia (FARC) is in crisis once again.



Events and Announcements: April 19, 2015

by Jessica Dorsey

Calls for Papers

  • Call for papers for ‘The Latin American Challenge to the Current System of Investor-State Dispute Settlement’ will analyze current developments and the proposed design of UNASUR’s investment dispute settlement centre, as an example of the Latin American ‘challenge’ to investment arbitration and place it within the wider context of reform of investor-state dispute settlement as evidenced elsewhere in the  world. It will prioritise critical and theoretical (rather than descriptive) approaches that will guarantee a scientific interest in the volume long after its publication date. Scholars, IIA negotiators and experienced practitioners are invited to submit cutting-edge proposals that go beyond the state of the law to this call for papers for the Journal of World Investment & Trade. The guest editors of this  Journal of World Investment & Trade Special Issue areDr-  Katia Fach (University of Zaragoza, Spain) and Dr. Catharine Titi (University Panthéon-Assas, France).


  • The final workshop of the Annual Seminar Series of the Centre for Law and Society in a Global Context (CLSGC)Constructive Links or Dangerous Liaisons? The Case of Public International Law and European Union Law will take place at Queen Mary Innovation Centre, Clark-Kennedy Lecture Theatre, on 25-26 June 2015.The workshop concludes the ‘Beyond Pluralism’ project, building on the introductory round-table discussion held in October 2014 on general aspects of the EU-PIL interface and the ‘thematic dialogues’ on specific issue-areas that followed until March 2015. The event will gather top-rank contributors, coming from all over Europe, to consider findings and put them into perspective. The objective is to assess how best to articulate the link between the two regimes and possibly re-define their relationship offering a comprehensive account of their interaction, overcoming current limitations of monist, dualist and pluralist approaches. To register and for full programme details, please, visit the website here.


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.

Am I Missing Something or Does the New Trade Promotion Authority Bill Violate the U.S. Constitution?

by Julian Ku

I am slammed with a couple of projects right now, but I can’t help throwing this question out to the legal blogosphere.  Does the new “Bipartisan Trade Priorities and Accountability Act” recently introduced by leading U.S. Senators violate the U.S. Constitution’s bicameralism and presentment requirements as stated by the U.S. Supreme Court in INS v. Chadha?

The BTPAA seems crucial as the U.S. enters the final stages of its negotiations over the “Trans Pacific Partnership” (TPP) with Asia and the Transatlantic Trade and Investment Partnership (TTIP) with Europe because it allows the President to submit his negotiated trade agreements for a “fast-track” up and down vote that Congress cannot amend.

Because of congressional opposition, the new trade promotion bill has a provision that looks a lot like a “legislative veto” that allows a resolution passed by a majority vote by one House of Congress to withdraw the “fast-track” authority.   Here seems to be the key language.

(A) IN GENERAL.—The trade authorities procedures shall not apply to any implementing bill submitted with respect to a trade agreement or trade agreements entered into under section 3(b) if during the 60-day period beginning on the date that one House of Congress agrees to a procedural disapproval resolution for lack of notice or consultations with respect to such trade agreement or agreements, the other House separately agrees to a procedural disapproval resolution with respect to such trade agreement or agreements.

(B) PROCEDURAL DISAPPROVAL RESOLUTION.—(i) For purposes of this paragraph, the term ‘‘procedural disapproval resolution’’ means a resolution of either House of Congress, the sole matter after the resolving clause of which is as follows: ‘‘That the President has failed or refused to notify or consult in accordance with the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 on negotiations with respect to ____ and, therefore, the trade authorities procedures under that Act shall not apply to any implementing bill submitted with respect to such trade agreement or agreements.’’, with the blank space being filled with a description of the trade agreement or agreements with respect to which the President is considered to have failed or refused to notify or consult.

Am I missing something? Even if (as the provision seems to say), a resolution of both houses is needed to withdraw fast track authority, the joint resolution doesn’t satisfy the presentment (to the President) requirement in the Constitution that the Supreme Court has repeatedly upheld in cases like INS v. Chadha and Clinton v. City of New York.  Unless the President has an opportunity to veto the “procedural disapproval resolution,” I doubt this law is constitutional.  I think the only saving grace is that the resolutions  withdrawing fast track can only be invoked if the President fails to notify or consult rather than on the merits.  But I am still very doubtful this difference matters. I haven’t carefully examined all of the legislation’s provisions, but this does strike me as an issue worth discussing.  Comments welcome!

400+ Academics Sign an Open Letter in Support of Harold Koh

by Kevin Jon Heller

I’m one of them. Here is the text of the letter:

To Whom It May Concern,

A recent petition at NYU urges people to express “no confidence” in the Law School’s invitation to Harold Hongju Koh to teach international human rights law this semester. We understand that this petition is motivated by Professor Koh’s recent service as Legal Adviser to the U.S. Department of State in the Obama Administration. We agree that individuals can have significant and understandable concerns about the use of lethal force by the United States, including the U.S. drones program. We also agree that U.S. actions must conform to a demanding application of constitutional law and international law.

Nevertheless, we believe the petition is deeply misguided. Professor Koh has been a leading scholar of, and advocate for, human rights for decades. While some may disagree with him on particular issues of law or policy, he is widely known for his unquestionable personal commitment to human rights and his eminent professional qualifications to teach and write on the subject. Any number of reports confirm that Professor Koh was a leading advocate for preservation of the rule of law, human rights and transparency within the Obama Administration, including on the drones issue.

While we strongly support the free exchange of ideas that is fundamental to civil society in general, and the academy in particular, we think it is patently wrong and unfair to suggest that Professor Koh acted unethically by his recent government service, or that his service now disqualifies him to teach human rights law on a leading law faculty. The world needs more human rights professionals who are willing to commit themselves to government service on behalf of their nation.

You can find a list of the signatories, which span the political spectrum, here.

The States Continue to Exist in Foreign Affairs: Implementing Treaties

by Julian Ku

Among my many hobby-horses is a  fascination with the role of the individual American states in the interpretation and implementation of international law within the U.S.  In past work, for instance, I have argued that states can individually implement treaties via guidance from Uniform Laws. I had a few examples of this phenomenon in my article, and I think it will be an increasingly common way for the U.S. to carry out its treaty obligations for those matters that are handled by state governments under American law.

So I was glad to run across this article about controversy over a bill in Idaho to conform to the 2008 Amendments to the Uniform Intercountry Child Support Act. The controversy stems from the fact that the 2008 Amendments require states to recognize and enforce child support orders from countries that are members of the Hague Convention on Child Support and that lawmakers in Idaho are concerned that states applying Sharia law might have their orders enforced by Idaho courts.  Putting this controversy aside for a moment, it is worth noting that states ultimately have a choice whether or not carry out U.S. obligations under the treaty, even though the U.S. has obligations under international law.  The federal government has decided to encourage states to carry out the treaty obligations via the spending clause by tying federal funds to adopting the 2008 amendments.  But states like Idaho can choose to not take the funds, and essentially refuse to comply with the treaty.

So it is worth noting, and perhaps celebrating, this continuing trend of relying on states to carry out US treaty obligations.  I think this trend is likely to continue.

Guest Post: Is the Alien Tort Statute Headed Back to the Supreme Court?

by William S. Dodge

[William S. Dodge is The Honorable Roger J. Traynor Professor of Law at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus briefs filed by the United States in Kiobel v. Royal Dutch Petroleum Co. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

In Kiobel v. Royal Dutch Petroleum Co., the U.S. Supreme Court held that the cause of action for human rights suits under the Alien Tort Statute (ATS) did not reach claims against a foreign corporation if all the relevant conduct occurred abroad. Lower courts have struggled with how to apply Kiobel to cases involving American corporations and conduct in the United States. On Friday, the second anniversary of the Kiobel decision, the Justices are scheduled to discuss the petition for review in Cardona v. Chiquita Brands International, Inc., a case that would allow them to provide further guidance in such cases.

Kiobel was something of an outlier—a class action against a foreign parent corporation (Royal Dutch Shell) based entirely on its foreign subsidiary’s activities in a foreign country (Nigeria), in which the foreign parent’s home countries (the Netherlands and the United Kingdom) objected that their own courts were more appropriate forums for the plaintiffs’ claims. The Supreme Court held that the principles underlying the presumption against extraterritoriality limit the causes of action that may be brought under the ATS, but it did not close the door to corporate suits entirely. In a cryptic final paragraph, Chief Justice Roberts wrote:

On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.

But what if some of the relevant conduct took place inside the United States? The Court majority plainly did not adopt the position of Justice Alito’s concurring opinion that the international law violation itself must occur in the United States. And what if the corporate defendant were not just “present” in the United States (as foreign corporations are considered to be for jurisdictional purposes) but actually had U.S. nationality?

Justice Breyer (whose concurring opinion was joined by Justices Ginsburg, Sotomayor, and Kagan) thought the ATS cause of action should cover claims against U.S. nationals and claims based on conduct in the United States. Justice Kennedy, who provided the crucial fifth vote for the majority opinion, did not tip his hand, but he emphasized in his own concurring opinion that the decision “leave[s] open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute.”

Lower courts are divided over how to answer these questions. The Second Circuit has been the most restrictive. It has held that the U.S. nationality of the defendant is simply irrelevant and that the alleged conduct in the United States must itself constitute a violation of the law of nations (although significantly the Second Circuit recognizes that the law of nations violation in the United States could consist of aiding and abetting a human right violation abroad). See Mastafa v. Chevron Corp., 770 F.3d 170, 187-89 (2d Cir. 2014). The Second Circuit also continues to hold that suits against corporations cannot be brought under the ATS at all because the law of nations does not recognize corporate liability. See Chowdury v. World Bangladesh Holding Ltd, 746 F.3d 42, 49 n.6 (2d Cir. 2013).

Other circuits have concluded that the U.S. nationality of a corporation is relevant in recognizing a cause of action under the ATS but not sufficient by itself. See Doe v. Drummond Co., 2015 WL 1323122, at *14 (11th Cir. Mar. 25, 2015); Mujica v. Airscan Inc., 771 F.3d 580, 594 (9th Cir. 2014); Al-Shimari v. CACI Premier Technology, Inc., 758 F.3d 516, 527 (4th Cir. 2014). None have held, like the Second Circuit, that the international law violation itself must occur in the United States. And one has expressly reaffirmed its prior holding—again, contrary to the Second Circuit—that corporations may be sued under the ATS. See Doe v. Nestle USA, Inc., 766 F.3d 1013, 1022 (9th Cir. 2014); see also Doe v. Exxon Mobil Corp., 654 F.3d 11, 40-57 (D.C. Cir. 2011) (recognizing corporate liability); Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1017-21 (7th Cir. 2011) (same).

The petition the Justices are planning to discuss on Friday has facts at the other end of the spectrum from Kiobel. The defendant corporations are both U.S. companies. They allegedly approved payments from their offices in the United States to the terrorist organization Autodefensas Unidas de Colombia (AUC) and facilitated shipments of weapons and ammunition with the purpose of aiding and abetting extrajudicial killings to suppress labor activism and local competition. Although the case is before the Supreme Court on a motion to dismiss, there is no dispute that the alleged payments occurred. In a criminal prosecution brought by the United States, Chiquita pleaded guilty to making illegal payments to the AUC. A divided panel of the Eleventh Circuit concluded in Cardona that all the relevant conduct occurred abroad, but without bothering to explain why the conduct alleged to have occurred in the United States was not relevant.

The facts alleged in Cardona certainly seem sufficient to recognize a cause of action under the criteria set forth in Justice Breyer’s concurring opinion. Four Justices joined that opinion, and it takes only four votes to grant cert. If those Justices think the facts in Cardona are sufficiently egregious to persuade Justice Kennedy that an ATS cause of action against U.S. corporations should exist in at least some circumstances, they could well vote to hear the case.

Weekly News Wrap: Monday, April 13, 2015

by Jessica Dorsey

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


Middle East and Northern Africa




  • In the first meeting of its kind in nearly 60 years, U.S. President Barack Obama and Cuban leader Raul Castro sat down together for over an hour on Saturday at a regional summit in Panama, moving a step closer to restoring diplomatic ties.
  • As the United States and Iran come closer to a historic nuclear deal, many U.S. states are likely to stick with their own sanctions on Iran that could complicate any warming of relations between the long-time foes.
  • U.S.-led forces targeted Islamic State militants in Syria with three air strikes from Saturday to Sunday morning, and also conducted 10 air strikes in Iraq, the U.S. military said.
  • A U.S. federal judge on Friday denied a last-minute request by four U.S. former Blackwater guards convicted in the massacre of 14 unarmed Iraqis in 2007 to have their sentencing postponed, and said it will go ahead as planned on Monday.



Events and Announcements: April 12, 2015

by An Hertogen


  • On April 13-14, 2015, the University of Alabama School of Law will host a workshop and symposium event on the topic of the Rights of States in International Law.  The event will be organized by Professor Dan Joyner. The participants will workshop their papers, which are to comprise a special issue of the Cambridge Journal of International & Comparative Law, which is being organized by Professor Joyner and Dr. Marco Roscini. This project is devoted to the question of whether fundamental rights of states, which appear to be recognized in the provisions of a number of conventional and customary sources of international law, actually exist. These purported rights include the right to self-defense, the right to existence, the right to private life/noninterference, the right to permanent sovereignty over natural resources; the right to be free from economic coercion, and the right to peaceful nuclear energy. If in fact they do exist, what is their source and legal character? What are their juridical implications – e.g. when they come into conflict with the legal obligations of the right holder, or with the actions of other states and international organisations? The papers in this special issue seek to examine these questions both theoretically and doctrinally, and to provide a framework for understanding the fundamental rights of states, and their role in the international legal system. For questions concerning the workshop/seminar, please contact Professor Dan Joyner at djoyner [at] law [dot] ua [dot] edu
  • Registration is now open for the International Institute of Humanitarian Law’s specialized course on the Conduct of Peace Support Operations (PSO) from June 15 – July 19, 2015 in Sanremo, Italy. The aim of this course is to prepare potential civilian and military staff and augmentees for PSOs by providing an understanding of the legal issues affecting their deployment and mission accomplishment. Participants will examine and discuss the wide ranging legal issues underpinning PSO mandates affecting mission design, and those legal aspects which will shape and govern the deployed force and mission. Seminar topics include the legal bases for PSO, the applicability of human rights and LOAC, criminal responsibility and the legal implications of detention, cyber activities, and emerging technologies on PSO.  For more information see here.

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: April 4-10, 2015

by Jessica Dorsey

This week on Opinio Juris, we hosted a Book Symposium on Interpretation in International Law. The Symposium was introduced by Daniel Peat and Matthew Windsor who offered the framework and context of the book in describing their introductory chapter (available here), explaining that the idea of interpretation in their work centers around the metaphor of a game, with each of the authors contributing their thoughts on elements of that game.

In the next post, our own Duncan examined the object of the game of interpretation in terms of its existential function. Then, on Tuesday, Michael Waibel analyzed the players of the game by discussing the nature of interpretive and epistemic communities in international law. Wednesday, Julian Arato confronted the paradox that, despite the unity and universality of the VCLT rules, there is a practice of affording some treaties differential treatment in the process of interpretation. Thursday, Fuad Zarbiyev characterized the interpretive method of textualism in strategic terms, revealing the historical contingencies that led to it being regarded as sacrosanct in international law. And finally on Friday, Philip Allott’s contribution (emblematic of the aims of the book) reflected on ways to promote critical and open-minded reflection on interpretive practices and processes in international law.

We had two guest posts, one from John Louth who discussed how many international law books are published each year, and one from Gabor Rona, who addressed the recent holding Maldonado v. Holder as it pertains to the US’ obligations under the Convention Against Torture.

Kevin offered his thoughts on the advantage for Palestine of a slow preliminary examination with respect to Palestinian statehood and the recent petition to bar Harold Koh from teaching human rights at NYU and Roger highlighted a debate amongst scholars on the investment arbitration chapter in the TPP and TTIP.

I posted the news and events and announcements.

Thanks very much to the contributing authors of Interpretation in International Law as well as our guest contributors and to you for following us on Opinio Juris. Have a great weekend!

Book Symposium: Interpretation — An Exact Art

by Philip Allott

[Philip Allott is Emeritus Professor of International Public Law at the University of Cambridge.]

Interpretation of any text – religious, political, historical, scientific, literary, artistic, legal – raises profound philosophical problems. Interpretation of a legal text is in a class of its own, because it can have direct and substantial social effects, determining people’s lives. The philosophy of legal interpretation is the philosophy of a fundamental aspect of social existence.

The philosophical problems of interpretation stem from the fact that interpretation is a re-presentation of a presentation of reality contained in the text, a reality which is already an interpretation by the mind of some aspect of human experience, and the interpretative re-re-presentation then itself becomes part of that reality. The circular problem of the presentation of reality in language and symbols that modify reality has traditionally been seen as a problem of epistemology – How do we know anything? What is that we know when we think that we know something?

When a text is in a moral context (what does this text say that I or we should do?), it may have a personal effect beyond the social effect. Interpretation may generate a sense of obligation.   When a text is in a legal context, it may have more dramatic effects, personal and social. It may give rise to legal relations – rights, duties, powers, freedoms, etc.   And legal relations switch on specific and powerful social mechanisms in the making and the application and the enforcement of law.

It is a familiar fact that translation into another language can never produce a perfect re-presentation of a text in that other language. But such an ideal may dominate the mind of the translator, involving an underlying respect for the intention of the author of the text. In the case of interpretation, the originating premise is that the interpretation will be something different from the text interpreted.

A speculative or imagined intention of the author of the text may be a relevant element in interpretation, but the interpretation may properly take into account an unlimited number of other considerations. The interpretative context is, in principle, unlimited. It is for this reason that an attempt to lay down general legal rules of interpretation, as in the Vienna Convention on the Law of Treaties, is futile, not least because those rules must themselves be interpreted.

Thus all forms of interpretation involve a succession of acts of creation, supplementing the creative act that produced the original text. The original text becomes the nucleus of an ever-growing living-body of interpretations, each interpretation digesting the work of its predecessors. The text comes to be what it has been made to become through interpretation.

In all forms of interpretation, there may be a sense of proper limits to freedom of interpretation, an implied and unspoken deontology of interpretation. A religious text, centuries later, may have only slender connections with its original form. A Greek tragedy is its bare text plus centuries of thought about it. A work of art is overlaid with veneers, layer after layer, of thought about the work. The only controlling obligations in such cases seem to be a duty to preserve a continuing coherence of interpretation, a sense of respect for the author, a sense of changing social and cultural contexts to which interpretation should respond.

In the case of legal interpretation, the controlling deontology is an integral part of the justification of law itself as a social phenomenon. Law is a violation of human freedom inherited from the social past, taking effect in the social present, determining the social future. Law needs a lot of justifying. Lawyers are aware of this, especially judges and leading practising lawyers, and legal academic writers. Arbitrary interpretation would be a violation of the social responsibility of the lawyer, an abuse of social power. Lawyers know that they must justify their legal interpretations in the same ways that law in general and public authority in general are justified – through respect for a whole array of contextual social and moral standards and understandings, and an ultimate duty to find and to serve the common interest.

Interpretation of International Law is in a very different situation. There are no established contextual social and moral norms and understandings of the kind that dominate advanced national societies.   The overriding international ethic is the use of crude power and diplomatic power to serve nationally determined interests, with only a weak sense of a common interest.   The systems of law-making and law-application and law-enforcement are rudimentary and haphazard.   An international legal text is a happy-hunting-ground for the extreme ingenuity and duplicity that enlightened self-interest, and the subtle minds of lawyers, can generate – and an inexhaustible source of wealth for some.   Practical examples of this abound in the torrent of legal texts created and interpreted and applied in the vast expansion of the scope of International Law since 1945.

The future of international legal interpretation will be better if the future of International Society is better – and if International Lawyers acquire a more sophisticated understanding of the nature and the problems and the responsibilities of all forms of interpretation, and especially of legal interpretation. Interpretation in International Law is an art and a game and a field of battle. It is an ultimate art of the possible, and the possible includes a better kind of law for a better kind of international society.

Book Symposium: Textualism in Treaty Interpretation–A Genealogy

by Fuad Zarbiyev

[Fuad Zarbiyev is an Associate in the International Arbitration Group of Curtis, Mallet-Prevost, Colt & Mosle LLP.]

The interpretation discourse in modern international law is dominated by a textualist paradigm. This claim may seem empirically wrong if it is taken to mean that nothing other than eo nomine textual arguments features in the international legal discourse. After all, the interpretive regime set forth in the Vienna Convention on the Law of Treaties seems to put the terms, the context, and the object and purpose of the treaty on an equal footing. But this does not disprove the dominant status of the textualist paradigm. As a matter of the Vienna Convention regime, context is for instance nothing other than a slightly enlarged text. Likewise, object and purpose is not something independent of the text, but a parameter that can hardly claim relevance in the interpretive discourse without a textual anchoring.

Why has textualism come to assume such prominence in a legal system in which consensualism has traditionally been and is still said to be at the heart of legal commitments? Is it not paradoxical that intentionalism, which seems more deferential to state consent, is systematically discredited as an interpretive philosophy in international law?

No persuasive answer can be found to such questions in the international case law or the scholarly works uncritically reproducing it both of which seem to suggest that the interpretive regime set forth in the Vienna Convention is of a temporally boundless validity. Despite the fact that the treaty interpretation rules embodied in the Vienna Convention have been applied to treaties dating to the nineteenth century, the notion that the interpretive regime embodied in the Vienna Convention can claim a sort of trans-historical validity does not stand up to an historically informed scrutiny. Consider the following two interpretive statements separated from each other by a time interval of 87 years. The first statement issued by an arbitral tribunal in 1897 reads as follows:

[W]e are to interpret and give effect to the treaty of April 15, 1858, in the way in which it was mutually understood at the time by its makers … It is the meaning of the men who framed the treaty which we are to seek, rather than some possible meaning which can be forced upon isolated words or sentences.

The second statement, issued by the Iran-US Special Claims Tribunal in 1984, holds that:

[T]he Vienna Convention does not require any demonstration of a ‘converging will’ or of a conscious acceptance by each Party of all implications of the terms to which it has agreed. It is the ‘terms of the treaty in their context and in the light of its object and purpose’ with which the Tribunal is to be concerned not the subjective understanding or intent of either of the Parties.

Two interpretive philosophies farther apart from each other are hardly conceivable. A series of historically contingent factors can plausibly explain the gap between the epistémés underpinning these philosophies. The first among such factors is the phenomenon of permanent international tribunals. The rise of permanent tribunals seems to have gone hand by hand with the increasing marginalization of the intention of the parties in treaty interpretation. Traditionally considered as common body of the parties, arbitral tribunals tended to be careful in tracing back their decisions to the intention of the parties. In contrast, due to their independence from the parties before them, permanent tribunals did not feel the same discursive constraints and were able to place priority on text. The primary sign of this tendency is of course the decrease of the importance attached to travaux préparatoires in treaty interpretation.

Another factor worth considering is the ideological division of the international society in the 1950s-1960s when the Vienna Convention on the Law of Treaties was being drafted and finally adopted. Despite their strong political preference for the voluntarist conception of international law, the countries from the communist bloc vehemently rejected any attempt to undermine the priority status of textualism during the Vienna Conference on the law of treaties. Their position must be viewed against the ideological stakes at issue: the notion that communist countries could share a common intention with “bourgeois” states was hardly acceptable on ideological grounds as explained by the leading Soviet international lawyer, Grigory Tunkin.

Decolonization and the rise of newly independent countries on the international plane seem to be another relevant factor. While newly independent countries had a clear preference for law-making by treaties as opposed to customs over which they had no control, intentionalism could not have been an attractive interpretive approach for them. For one thing, intentionalism carried with it a serious potential for manipulation of the scope of their treaty commitments. For another, intentionalism presented the risk that the common intention of the original parties to a significant number of multilateral treaties to which newly independent countries became parties could be controlling. Neither of these prospects was acceptable to newly independent countries in view of their acute sovereignty-sensitivity.

Such contingent institutional and political factors should be seen together with the clear preference textualism has traditionally enjoyed in the intellectual history of international law, which explains that the historical contingency of textualism is seldom questioned by international law scholars. Due to the decentralized nature of the international society, every State enjoys the power to interpret its own rights and obligations. If unconstrained, this power of auto-interpretation can carry with it an enormous dispute-generating potential the danger of which is self-evident in international law where no state can be compelled to submit its dispute with another to a binding dispute settlement mechanism. The pro-textualist preference of international lawyers reflects their constant search for solid foundations that cannot be manipulated by states pursuing their own interests.

A genealogical inquiry along the lines above shows that treaty interpretation is not governed by immutable rules; it is a “language game” played by historically situated actors the historical situation of which directly impacts what the game is and how it should be played.

Guest Post: How Many International Law Books are Published in a Year?

by John Louth

[John Louth is Editor-in-Chief of Academic Law at Oxford University Press.]

I make it 401, but more of that below.

A few years ago when we carried out some research into law scholars’ habits we found many were telling us that there was so much being published that they didn’t even try to keep up anymore. I decided to try and see how difficult it would be to get a snapshot of just the books that published in one 12 month period – April 2014 to March 2015. The dates reflect two important cycles in my life: it matches OUP’s financial year and it marks the time between annual meetings of the American Society of International Law, the largest annual gathering of international lawyers (in the English speaking world at least).

The starting point for collecting titles was Jacob Katz Cogan’s invaluable International Law Reporter blog but due to the slightly different criteria for inclusion that I was applying I also went through publishers’ websites systematically. The result was 401 books published in English, French, and German.  No judgements about the quality of the scholarship were made – if it published in print, it was included. The full list in spreadsheet form and an explanation of the criteria for inclusion are available here. There is naturally a lot of room for debate about what I deemed to be “international” and what I deemed to be “law”. For each title I recorded the author/editor, language of publication, the publisher, and the subject area.

Statistical Overview

The top four publishers by number of titles were

  1. 1. CUP (72)

  2. 2. OUP (69)

  3. 3. Brill-Nijhoff (56)

  4. 4. Routledge (44).

Further behind we then have

  1. 5. Nomos (25)

  2. 6. Springer (24, or 27 if you include the 3 Asser Press titles they distribute)

  3. 7. Edward Elgar (20)

  4. 8. Pedone (19)

  5. 9. Hart (18)

  6. 10. Bruylant (11) and then a number of presses with between one and four titles in the list.

The linguistic split is 340 English, 36 French, 19 German, 5 French and English, and 1 German and English. The ratio of authored to edited books was 246 to 155.

Every title was assigned either one or two broad subject areas that it covered. The total figure for numbers of titles by subject therefore is greater than 401. Economic law broadly speaking (encompassing those titles on international economic law generally, plus those specifically on trade or investment law) accounts for the largest number (67), then human rights (53) and then war/peace/use of force issues (51).

The two institutions that had the most attention were the UN Security Council and the International Criminal Court which were the subject of 7 books each. Breaking the coverage down geographically there were more books about China (8) than anywhere else, followed by the Polar regions (6).

“Hot” Topics?

There were

  • 13 titles addressing issues of transitional or post-conflict justice
  • 7 each on terrorism and cyber issues
  • 6 each on corruption and economic/social/cultural rights, and
  • 5 on climate change.

Book publishing obviously lags behind current events which might explain why there are still quite a few books on piracy (4) in the list but not yet anything specifically on Syria or ISIS. In terms of genres the big one is clearly the “Handbook” with 13 in the list spread between Routledge, Elgar, and OUP, but the second is the evergreen Festschrift with 12 having published in this period. Special mention should be made of a liber amicorum for Serge Sur published by Pedone which is not on the list as it appears to have only been available as a subscription item and doesn’t seem to be available any more. That is a great shame as it concludes with a chapter about the glories of hard-boiled eggs with mayonnaise, for many years an inexplicable lacuna in international legal scholarship.

Why Do Such a Survey?

I did this to step back from my role as an OUP editor and see what is going on outside of my list but also to assess what kind of a burden is being placed on those who are trying to stay abreast of scholarship in their field. For scholars and librarians I hope that it is simply useful to see a reasonably comprehensive list and make sure you haven’t missed anything. Beyond that though it is probably helfpul to reflect on the quantity of output, the languages, and the subject areas/topics that are being published on. What areas are over-saturated and which are in need of greater coverage? Is it a concern that such a high proportion of the single-authored books are based on doctorates or is that a healthy sign of new thinkers entering the field?

If there is interest we could try to make this an annual survey, hopefully including publications from more than the three languages covered (helpers would be needed though as my language skills are limited to English, French, and German).

To get a fuller picture we need to look at journals and the many hybrid forms of scholarly output (such as working papers or reports produced for international organizations) but that will take some more time due to the vastly greater quantity of material to be sifted through.  For now I hope that this inaugural survey is food for thought.

Book Symposium: Accounting for Difference in Treaty Interpretation over Time

by Julian Arato

[Julian Arato is an Associate-in-Law at Columbia Law School.]

Interpretation in International Law is something of an iconoclastic volume, from its critical ethos to its provocative structure around the metaphor of the game. The object of its revisionism, above all, is an apparently stagnant formalism that seems too prevalent in the theory and practice of interpretation in international law today. Symbolic of this antiquated formalism – for the editors and for many of the contributors – are the rules of interpretation embedded in the Vienna Convention on the Law of Treaties (VCLT). There is something funny about defending the rules in such a collection – like arguing for reform in a volume on revolution.

My chapter, ‘Accounting for Difference in Treaty Interpretation over Time’, embraces the Vienna rules in principle. I reject neither rules nor formality, and I happily hew toward the VCLT’s project of bringing order to the practice of interpretation. In my view, there is real value in the regulatory ideal that a “correct” interpretation of any treaty exists. The Vienna rules reflect a crucial language for approaching that ideal. The rules don’t simply provide access to the correct interpretation – they help constitute it. And, crucially, they do so according to a scheme accepted by states, the plenary subjects of international law.

Still, in an important sense I agree with the volume’s critical spirit. In my view the real problem lies not with the Vienna rules themselves, but with a reverence for them that sometimes borders on the fetishistic. It’s not the rules, in other words, but the way they tend to be received. The misstep lies in the notion that the Vienna rules comprise a fully self-contained approach to treaty interpretation – universally applicable to all treaties, and always in the same way. This article of faith is neither borne out in practice nor in theory, and nowhere is this more evident than in the interpretation of treaties over time.

All students of public international law are at some point taught that as a matter of doctrine all treaties are subject to the same unified rules of interpretation. Yet at the same time, everyone knows that some treaties are special. Time and again we hear that some kinds of treaties are different. Courts, tribunals, and scholars often intone that certain treaties are entitled to special treatment when it comes to interpretation, especially as regards changes of circumstances and intentions attending the passage of time.

Often the argument is that human rights treaties are somehow special – capable of progressive evolution over time, with or without the continued consent of the parties. By the same token, it is sometimes suggested that subsequent party practice, usually an authentic criterion for the interpretation, reinterpretation, or even the modification of treaties, is somehow of less value in the context of interpreting treaties that confer rights on natural persons. The argument is that in such cases the mastery of the parties over time is somehow reduced. We hear similar statements about environmental treaties, territorial treaties, and of course the constituent instruments of international organizations. The problem is that the explanations offered for differentiating among types of treaties are rarely satisfactory.

The argument that a particular treaty provision is entitled to special treatment tends to be explained in one of two ways, both of which prove ultimately unsatisfying. One approach simply invokes the general subject matter of certain treaties in singling them out for special treatment. In light of their special subject matter, the argument goes, treaties on subjects like human rights or the environment should be understood as insulated from the changing will of the parties, and sometimes capable of autonomous evolution. But such statements cannot withstand serious criticism. In the words of the ILC’s Fragmentation Report (at [21]): “characterizations (‘trade law’, ‘environmental law’) have no normative value per se … The characteristics have less to do with the ‘nature’ of the treaty than the interests from which it is described.”

A second school of thought tries to work within the Vienna rules – focusing especially on one criterion of interpretation, object and purpose, in accounting for ascribing differential weight to the other codified rules. On this view, the touchstone must always be the intention of the states parties, as reflected in the goals that the treaty seeks to achieve. Adherents of the object and purpose approach have the advantage of formality. Its proponents can argue that the answers lie within the rules after all, in the invocation of object and purpose at VCLT Article 31(1). And yet something important still seems to be missing. Even where a treaty’s goals are sufficiently determinate, the interpreter must still ask how far the parties were willing to go to achieve their goals. Though a treaty may enshrine certain values, it remains critical to ask to what extent the states parties intended to entrench those values – to what extent, in other words, they agreed to tie themselves to the mast.

My suggestion is that international lawyers’ tendency to focus doggedly on the canons of interpretation codified in the VCLT draws attention away from a crucial consideration in the interpretive puzzle: the nature of the treaty obligations under interpretation. What gets left out is any inquiry into how far the states parties intended to commit themselves in acceding to a treaty obligation.

Put more schematically, the critical issue elided by the Vienna rules is whether a treaty provision entails a merely reciprocal exchange of rights and duties, or rather incorporates a more absolute commitment by the parties to take on an obligation insulated from their changing intentions, and over which their subsequent mastery might prove relatively limited. Some treaty norms represent mere exchanges of rights and duties, wholly dependent on mutual performance. If one party breaches its obligations, the other is well within its rights to do the same. Other norms represent a shared commitment to abstain from, or engage in, a certain behavior – whatever the other parties do. It is well understood that differences in the level of party commitment are relevant to determining the consequences of treaty breach, or to resolving conflicts with subsequent treaties. And indeed, as Pauwelyn has noted, the VCLT itself recognizes the importance of drawing distinctions between different types of treaty norms for these non-interpretive purposes. I argue that this distinction is just as central to the resolution of problems of interpretation over time.

Starting from the perspective that the Vienna rules are essential, I suggest that the problem of differential interpretation over time reveals a deficiency in how we think about VCLT Articles 31–32. Specifically we ought to avoid treating it as a total interpretive mechanism. The problem lies not in our interpretive rules as such, but in the assumption that any set of rules can do all the work. Without arguing for anything like revising or abandoning the VCLT, I suggest that the process of interpretation may sometimes require taking into account considerations left unmentioned by Articles 31–32. Distinguishing between types of obligations based on the level of the parties’ commitment is a case in point. Doing so helps account for quite a bit of interpretive practice that would otherwise appear anomalous under the Vienna rules; hopefully it can provide a more principled justification for differential interpretation going forward.

NYU Petitioners Do Harold Koh — and Themselves — a Grave Disservice

by Kevin Jon Heller

Newsweek published a long article today about a petition organized by NYU students, alumni, and non-law faculty claiming that it would be “unacceptable” for Harold Koh to teach international human-rights law at the law school. Here is a snippet:

While working for the Obama administration, Koh was the most public legal defender of the president’s drone strike program. Last month, a petition was circulated at NYU Law—one of the top law schools in the country—that called Koh’s teaching of international human rights law for the 2014-1015 academic year “unacceptable.”

“Given Mr. Koh’s role in crafting and defending what objectively amounts to an illegal and inhumane program of extrajudicial assassinations and potential war crimes, we find his presence at NYU Law and, in particular, as a professor of International Human Rights Law, to be unacceptable,” the petition reads.

The petition has drawn around 200 signatures, but it has stirred a much bigger controversy on campus than the numbers might suggest.

I do not think scholars should get a free pass for their ideas simply because they were government officials when they embraced them. I continue to believe that it’s a terrible idea for serious scholars to go into government — this kerfuffle being Exhibit A. And I have very serious disagreements with Koh about the legality of the Obama administration’s drone program; indeed, I’ve discussed them with him.

That said, I find the petition appalling. Koh is one of the great international human-rights scholars of his generation — and he has personally taught or mentored most of the great international human-rights scholars of the current one. He is brilliant, compassionate, kind, and profoundly ethical. No one who knows him even a little (and although I know him, I can’t say I know him well) could possibly believe that he did not bring all of those qualities to his role as the State Department’s legal advisor. Does that mean he was always right? Of course not. As I said, I don’t share his view of the drone program. On the contrary, I think the program is abhorrent and quite often illegal. (And have said as much in my scholarship.)  But I would bet my last dollar that Koh never went against his beliefs while working at State — and that he did everything he could, within the confines of his position, to make the drone program comply with international law as he understood it.

Those of us on the left — and readers know just how far left I am — need to stop viewing US administrations as monoliths. Not all government officials are bad. Even terrible administrations have good people in them who work behind the scenes to minimise their terribleness. John Bellinger III falls into that category in the Bush administration; commenters on the blog have done him a disservice by lumping him together with people like John Yoo. And the NYU students, alumni, and faculty who have signed this petition have done Harold Koh an even worse disservice by accusing him — publicly — of being unfit to teach international human-rights law. On the contrary, NYU would be lucky to have him.

Scholars Debate Investment Arbitration Chapter in TPP and TTIP

by Roger Alford

Negotiations over the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) have highlighted the growing debate over investment arbitration. Last week the New York Times published an article summarizing objections to the TPP investment chapter. The article notes that politicians, law professors and liberal activists “have expressed fears the provisions would infringe on United States sovereignty and impinge on government regulation involving businesses in banking, tobacco, pharmaceuticals, and other sectors.”

The reference to academic opposition is based on a letter published by the Alliance for Justice with the signatories from numerous law professors. The one-page AFJ letter urges Congress to “protect the rule of law and our nation’s sovereignty by ensuring [investment arbitration] is not included.” Foreign corporations, the letter continues, can use investment arbitration to “challenge government policies, actions, or decisions that they allege reduce the value of their investments…. This practice threatens domestic sovereignty and weakens the rule of law by giving corporations special legal rights, allowing them to ignore domestic courts, and subjecting the United States to extrajudicial private arbitration.”

Today another group of prominent law professors who are experts in investment arbitration have written a lengthy response. The letter (to which I am a signatory) challenges the notion that signing an investment treaty constitutes a loss of sovereignty or undermines the rule of law. “Corporations cannot and will not gain victory simply by arguing reduced investment value.” Instead, a corporation must establish that “a host state has discriminated on the basis of nationality, has failed to accord a foreign investor due process, or has expropriated the property of a foreign investor without payment of prompt, adequate, and effective compensation.” The letter then addresses the contentious issue of regulatory takings, and highlights the limits of corporate claims challenging environmental, health, and safety regulations.

It concludes: “investment treaty arbitration does not undermine the rule of law…. The obligations commonly found in investment agreements—including non-discrimination on the basis of nationality; due process; expropriation of property only for a public purpose and on payment of prompt, adequate and effective compensation; and repatriation of profits—are the hallmarks of a society that is governed by law.”

Frankly, the rebuttal letter is substantive and faithful to the true state of investment arbitration, while the AFJ letter reads more like a piece of political advocacy than a memorandum by scholars offering legal analysis.

Of course, these battle lines are not new. The Multilateral Agreement on Investment was scuttled in the late 1990s because of similar concerns. In the meantime, over 3,000 bilateral and multilateral investment agreements have now been signed, with the United States a signatory to over 50 such agreements. NAFTA and CAFTA-DR are among the most prominent examples of such agreements.

What is new is the potential economic impact of the deals. The sheer size of TTP and TTIP significantly raises the stakes. The TPP countries collectively would represent the largest U.S. trading partner, accounting for 40% of total U.S. goods trade and 25% of total U.S. services trade. As for the TTIP, the combined share of the U.S.-EU GDP is approximately 45% of global GDP and reflects 17% of global foreign direct investment.

Any hope for a TTP or TTIP deal depends on Congress granting the Obama Administration trade promotion authority, which seems increasingly likely. Whether that authority includes investment arbitration remains to be seen. But the fact that the Obama Administration and the vast majority of Republicans in Congress strongly favor investment arbitration in both agreements bodes well for its inclusion.

Guest Post: Maldonado v. Holder and the US’ “Understanding” of Its Convention Against Torture Obligations

by Gabor Rona

[Gabor Rona is a Visiting Professor of Law and Director, Law and Armed Conflict Project at Cardozo Law School.]

The 9th Circuit issued a revised Opinion on March 27th in Maldonado v. Holder, a case about non-refoulement (the obligation not to expel, return or extradite someone to a country where they would be in danger of being tortured) and deferral of removal under the UN Convention Against Torture. The En Banc panel said that the lower court erred in placing the burden on the petitioner to show that he could not relocate within Mexico in order to mitigate the risk that he would be subjected to torture. The Court also overruled several precedents that placed excessive burdens on petitioners seeking protection from torture abroad, saying they were incompatible with federal regulations designed to implement the non-refoulement obligation. This decision is a big deal in the realm of immigration law. Petitioner’s lawyer was quoted in the San Francisco Chronicle: “(The ruling) puts us in compliance with our international obligations and protects tortured people.”

Well, not exactly, counselor. It depends on what you mean by “obligations.”

The result is commendable, as far as it goes, but a US “understanding” upon ratification of the Convention Against Torture considers the non-refoulement obligation to be triggered only if torture is more likely than not. In other words, if the petitioner can only show a 49% chance that he will be tortured, he loses. The Convention is not nearly so demanding. It prohibits refoulement “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” (Emphasis added). The Convention certainly doesn’t require proof that torture, or even the danger of torture, is more likely than not.

The US “understanding” is actually a “reservation” that significantly varies from the text of the Convention. One might say it tends to defeat the object and purpose of the treaty, and thus, is unacceptable. If so, the US is still some distance from compliance with its international obligation to protect people from torture.

Book Symposium: The Rise of Interpretive Communities in Treaty Interpretation

by Michael Waibel

[Michael Waibel is a University Lecturer in Law at the University of Cambridge and Deputy Director of the Lauterpacht Centre for International Law.]

The rise of distinct interpretive communities goes hand in hand with the much debated topic of fragmentation in international law. Even though the VCLT’s role in treaty interpretation has been studied extensively, how interpretive communities affect treaty interpretation has received less attention. Who the treaty interpreters are and how they approach the task of interpretation likely matters for interpretive outcomes.

Compared to national law, interpreters of international law are much more diverse. They come from different cultural and educational backgrounds and have varied professional experiences. They include judges on international and national courts, government legal advisers, lawyers in private practice, scholars and activists. They are often part of several, overlapping interpretive communities who speak the same language and share the same background assumptions – and this membership may shape how they approach the task of treaty interpretation.

Consider national judges. They may be particularly prone to interpreting treaties through the lens of their own legal system and in light of their particular specialization such as tax or criminal law. As a rule, national judges form part of diverse national interpretative communities, shaped largely by their own legal culture (including approaches to interpretation), rather than part of a global and interconnected community of international lawyers who speak (roughly) the same language. Going forward, diversity in treaty interpretation by national judges could be a major source of interpretive fragmentation, depending on what role interpretive communities along national lines play.

But all lawyers are, to a considerable degree, a product of their own culture, training and professional experience. As Frederick Dunn remarked in the 1930s, the international lawyer ‘carries with him the whole collection of habitual ways of acting, of fixed ideas and value judgments of his own community, which he is prone to expand into ideas of universal validity’: The Diplomatic Protection of Americans in Mexico (1933) at 105–107. James Crawford similarly observed that international lawyers are ‘commonly municipal lawyers first, and bring to the international sphere a collection of presumptions and perceptions as part of our training’: Chance, Order, Change: The Course of International Law (2013) at para 185.

How does one become a member of these interpretive communities? It varies from area to area, and from one state to the next. As a rule, the harder it is to join an interpretive community, the more influential the interpretation of that group is. For example, while it typically takes several decades of experience to join the interpretive community of international judges (particularly the ICJ), it is easier to join the interpretive community of human rights activists.

Unlike interpretation in literature, how much weight an interpretive community and its members carry is not just a matter of prestige, but has consequences. While more accessible interpretive communities mostly lack any binding authority, the interpretive community of, for example, ICJ judges or WTO Appellate Body members has the power to issue binding decisions. Others, such as government legal advisers have no power to issue such decisions, but are extremely influential in treaty interpretation because the bulk of interpretation in international law remains auto-interpretation – by the states concerned of their own interpretation.

Besides the diversity of the actors, the growing trend towards specialization in international law (mirroring a development in national law a century ago), accompanied by the “tunnel vision” symptom, fostered the emergence of distinct interpretive communities. Such tunnel vision, focusing on the unique goals of each specialization, can lead to the chopping of international law into discrete “blocks”. Consequently, generalist international lawyer idealized in Schachter’s famous “Invisible College of International Lawyers” are an endangered species.

Today, there are interpretive communities of human rights lawyers, investment lawyers and environmental lawyers for example. One manifestation of this centrifugal trend are more specialized professional societies, such as the Society of International Economic Law, which complement more generalist societies, such as the American Society of International Law. Such bodies have played a crucial role in fostering a sense of a broad, unified interpretive community of international lawyers in the 20th century.

An important implication of this tunnel vision is that specialist interpretive communities tend to regard their own area of expertise as supreme and pay little, or no, attention to other unrelated areas of international law: Bianchi, “Gazing at the Crystal Ball (again): State Immunity and Jus Cogens Beyond Germany v Italy” (2013), 4(3) JIDS 457. Interpretive communities pursue various strategies in order to enhance their prestige and influence: 1) some of the influential ones screen new members before admission, as mentioned above; 2) they cooperate with other actors to spread their views and increase support for their interpretation (e.g. with governments and practicing lawyers); and 3) they advance competing normative visions of international law while at the same time employing the VCLT’s widely accepted, open-ended principles of interpretation.

The rise of a larger number of distinct interpretive communities resulted in international law being “sliced up in institutional projects that cater for special audiences with special interests and special ethos”: Koskenniemi, “The Politics of International Law – 20 Years On” (2009) 20 EJIL 1, at 9. As Bianchi observed, interpretive communities can be seen both as a deadly threat to the international legal order, but also as a sign of the sophistication and expansion of the realm of international law: “Looking Ahead: International Law’s Main Challenges” in D Armstrong (ed), Routledge Handbook of International Law (Routledge 2009) at 404.

Schachter’s “invisible college” of international lawyers seems to have largely disappeared and has been replaced by a patchwork quilt of specialized international lawyers. Diverse interpretive communities have come to play an increasingly important role in treaty interpretation. This development raises concerns about the unity of international law, not just in relation to its interpretive methods, but also in relation the system as a whole. The challenge going forward is how to achieve a reasonable balance between specialization and fragmentation.

Book Symposium: Is there Existential Interpretation in International Law?

by Duncan Hollis

I want to start off our conversation about the larger project Bianchi, Peat and Windsor have undertaken with their new book before introducing my own contribution to it.  For years, the concept of interpretation has had a fairly narrow focus within the international legal landscape.  It has almost uniformly been associated with a discrete set of objects — treaties. From Grotius to Oppenheim, let alone McNair to Gardiner, when international lawyers have thought about interpretation, there has been a strong push to do so almost entirely with respect to treaty instruments.  Moreover, for several decades now the vehicle for interpretation has been widely accepted in the rules of the 1969 Vienna Convention on the Law of Treaties.  Although there was a time when the issue of how to interpret treaties garnered a really diverse range of views, modern discourse has largely devolved into claiming that the VCLT approach gives priority to (or at least endorses inclusion of) different methods of interpretation (e.g., intentional, textual, teleological). Now, to be clear, these are tremendously important issues given the role of treaties in international law today; scholarship on these topics has been, and remains, an important part of international legal discourse.  Nevertheless, what I like about the Bianchi, Peat and Windsor book (putting aside my own contribution) is the editors’ willingness to deal with the traditional games of treaty interpretation while also expanding the discourse to frame interpretation as a much larger project within the international legal order.  It is an important move, and one I hope to see continued in future scholarship as international lawyers begin to recognize all the ways interpretation operates within every nook and cranny of the field.

As for my own chapter (which is still up on SSRN, although you should really buy the book), its inspiration lay in one other aspect of the conventional approach to interpretation — defining interpretation simply as a process of giving meaning to treaty texts.  I’ve always thought that this approach under-claimed the functions interpretation can serve.  Certainly, interpretation has an expository function where its processes help interpreters ascertain what meaning to assign some treaty provision or other aspect of international law.  But, interpretation can have other functions as well.  For example, although still controversial in some circles, there is the idea that interpretation has an inventive or creative function where instead of simply “finding” meaning, interpreters craft one for the circumstances presented.  Alternatively, interpretation may serve a relational role in delimiting not what specific things mean, but how they relate to one another (i.e. whether one treaty provision supersedes another, whether some international humanitarian law rule takes priority over a human right guarantee, etc.).

My contribution to this functional analysis is to highlight the existential potential of interpretation.  My chapter explores how, in ascertaining meaning, interpretation operates to confirm—or even establish—the existence of the subject interpreted within (or outside) the corpus of international law.  I argue that all interpretations have existential effects as they create, confirm, or deny the existence of the subject of interpretation. At the same time, I identify a particular structure of interpretative argument – what I call “existential interpretation” – by which interpreters ascertain the existence of their subjects.  Interpreters can foreground or background existential interpretations depending on whether the existence of the subject-matter is accepted or disputed. Moreover, I find existential interpretations are not limited to the treaty-context.  Rather, they are visible at all levels of international legal discourse, including which particular (i) authorities, (ii) evidence, (iii) rules, or (iv) sources exist for purposes of international law.

Some of these existential interpretations are quite prominent and should actually be familiar to most international lawyers even if not previously couched in such terms.  Does the U.N. Human Rights Committee have authority to sever reservations as inconsistent with the object and purpose of the ICCPR?  For purposes of identifying customary international law, is evidence of “State practice” only comprised of what States “do” or can it also count what States “say”?   Is there an “unwilling or unable” test in the jus ad bellum in response to non-State actor attacks?  Is R2P now a part of international law?  Is the new Iran Deal a treaty or not? Are decisions of international organizations a separate source of international law?   These are all examples of existential interpretative inquiries.

My chapter seeks to illuminate the existential function of interpretation and illustrate such interpretations in all the various aspects of the international legal system.  But my paper is not simply an exercise in interpretative taxonomy — identifying different frames for interpretative questions.  Rather, I seek to illuminate the consequences that the presence or absence of an existential interpretation may have in terms of international legal (a) discourse, (b) doctrine, and (c) theories of international law.  For starters, existential interpretations delineate the boundaries for interpretative discourse, narrowing it in cases of consensus on the existence of the interpreted subject, and broadening it in cases of dispute. Where interpretative resolutions of existential questions are possible, they may impact the content of international law doctrine, either directly or indirectly. And, where resolution is not possible, existential interpretations may operate as proxies for theoretical disagreement about the nature or purpose of international law (e.g., positivists may insist interpreters exclude from their toolbox the same soft law sources that naturalists insist require effectiveness as a matter of right).

I conclude my paper by calling for further study of existential interpretation for practical and theoretical reasons.  As a practical matter, it would be useful to know more about when and how actors actually foreground existential interpretations.  Obviously, there may be cases where an interpreter does so in good faith, but I suspect existential interpretations might also be deployed instrumentally.  Consider the possibilities when a State (or other actor) objects to an interpreter X claiming that Rule Y means Z.  Of course, the State might simply disagree that Z is the correct meaning of Rule Y. But a State could expand the scope of the interpretative dispute by also questioning whether X has authority to interpret, the evidence on which Rule Y rests as well as the source of international law it is derived from. The objecting State may thus complicate the dispute by expanding its scope.  In doing so, moreover, the objecting State may change the nature of the dispute itself, shifting a discussion away from the initial question (e.g., protecting victims of a humanitarian crisis) to issues of authority or procedure (does international law contain a rule requiring such protection and who has authority to invoke its mantel).

As a theoretical matter, existential interpretations can serve as a new lens for mapping the unity and fragmentation of the international legal order itself. Instead of examining fragmentation along a single axis (eg norms), mapping existential arguments offers a way to gauge the extent of unity versus fragmentation along multiple axes.  Since existential interpretations are manifest throughout international legal discourse, questions of unity or fragmentation can be examined in terms of authority, the sources of international law, the rules of international law and the evidence on which they are based, the actors who may participate, or the remedies international law affords.  In each area, the number and depth of existential debates offer a rough gauge for mapping unity versus fragmentation.  Where existential inquiries are absent or where a consensus exists on the answers, unity may be presumed.  Conversely, where there are existential disputes, they indicate a fragmentation of the legal system.

In sum, as much as I love treaties, I believe that there is significant value in thinking about interpretation as more than a process of giving treaty provisions meaning.  My introduction of the concept of existential interpretation is an effort to show just how broadly interpretative processes reach and structure the international legal order.  In doing so, I hope to illustrate — as the book itself does — the importance of thinking about interpretation as its own field within international law.

[An introductory post to the book symposium can be found here.]

Book Symposium: Interpretation in International Law–What’s In A Game?

by Daniel Peat and Matthew Windsor

[Daniel Peat and Matthew Windsor are PhD candidates at the University of Cambridge Faculty of Law, and members of Gonville and Caius College.]

International lawyers have long realised the importance of interpretation to their academic discipline and professional practice. Interpretation in international law has traditionally been understood as a process of assigning meaning to texts with the objective of establishing rights and obligations. This has led to an almost exclusive focus on the interpretive methodology encapsulated in the Vienna Convention on the Law of Treaties. Outside the auspices of the VCLT rules, interpretation in international law has rarely been regarded as a distinct (and broader) field of inquiry. As new insights on interpretation have abounded in other fields, international law and international lawyers have continually granted an imprimatur to rule-based formalism. Given that interpretation is a pervasive phenomenon in international law that is irreducible to analysis of the VCLT rules, a greater methodological awareness of interpretive theory and practice in international law is imperative.

We convened a conference on interpretation in international law at the Lauterpacht Centre and the Faculty of Law at the University of Cambridge in 2013. The aim was to provoke fresh insights on a foundational topic. The result is a recently published book with Oxford University Press, Interpretation in International Law. The book is co-edited by Andrea Bianchi, Professor of International Law at the Graduate Institute, Geneva. A symposium of papers dealing with discrete interpretive topics from the conference also featured in the Cambridge Journal of International and Comparative Law.

In his preface, James Crawford describes our book as ‘teeter[ing] intriguingly between interpretation in the way international lawyers normally think about it and interpretation as everything they think about’. International lawyers normally think about interpretation with reference to the rules in the VCLT. Indeed, the literature on treaty interpretation is voluminous. This work is invaluable: it provides states and other actors in the international arena with a guide to the conventionally accepted norms of interpretation in the community within which they operate. But this project does not tell the whole story. It does not interrogate the larger purpose of interpretation in the international legal system, whether and why the VCLT rules act as a constraint on interpretation in practice, whether actors’ interpretations differ according to their professional identities, or if strategy motivates interpretive choice. In their mantra-like recital of the VCLT as a formal methodology for the interpretation of international legal rules, international lawyers till a bounded field, largely insulated from interdisciplinary influence or insight. A greater awareness of broader interpretive debates helps shed light on both the underlying premises and shortcomings of the rule-based orthodoxy. In short, interpretation in international law is not an island.

Our introductory chapter to Interpretation in International Law, which is freely available here, surveys the ‘state of play’ of scholarship on interpretation in international law, before analysing alternative approaches to the ascertainment of meaning. Such approaches reveal that any interpretive inquiry rests upon contestable bases regarding meaning, language and the importance of societal context and norms. The view that the interpretive inquiry in international law is reducible to, and exhausted by, the VCLT rules is overly reductionist.

The book is structured around the metaphor of the game, which captures and illuminates the constituent elements of an act of interpretation. The object of the game of interpretation is to persuade the audience that one’s interpretation of the law is correct. There are players who are engaged in the game, namely functionally specialised interpretive communities who deploy international law as a professional vocabulary. The VCLT rules of play are known and complied with by the players, even though much is left to their strategies. There is also a meta-discourse about the game of interpretation – ‘playing the game of game-playing’ – which involves consideration of the nature of the game, its underlying stakes, and who gets to decide by what rules one should play.

The game metaphor is more than a rhetorical flourish. It offers a heuristic framework that highlights topics of crucial importance in order to foster innovative thinking on interpretation in international law. The argument is not that interpretation is a game, but that particular facets of the comparison are illuminating and capable of capturing both routine interpretive operations as well as those advances that transform the law. To say that interpretation in international law is akin to playing a game does not imply that the process is frivolous or that the parties involved in interpretation are not seriously engaged in it. Rather, in its attention to interpretation as a complex social practice, and in its focus on socio-historical contingency and the relationship between freedom and constraint, the game metaphor helps reinsert some vitality in a discipline that has too often become bogged down in formalist interpretive technique.

Interpretation in International Law breaks free from a myopic focus on the VCLT to reveal interpretation as a phenomenon that permeates all areas of international law as a discipline and professional practice. We hope to convince readers that the game metaphor crystallises a set of concerns that are too often neglected in a formalist rule-based paradigm. Topics canvassed in the book are deliberately eclectic, ranging from theories of rhetoric and argumentation to the sociology of precedent, from cognitive frames of interpretation to the politics of hermeneutics.

Over the next few days, several of the book’s contributors will introduce their chapters. Duncan Hollis examines the object of the game of interpretation in terms of its existential function. Michael Waibel analyses the players of the game by discussing the nature of interpretive and epistemic communities in international law. Julian Arato confronts the paradox that, despite the unity and universality of the VCLT rules, there is a practice of affording some treaties differential treatment in the process of interpretation. Fuad Zarbiyev characterises the interpretive method of textualism in strategic terms, revealing the historical contingencies that led to it being regarded as sacrosanct in international law. Philip Allott’s contribution to the symposium is emblematic of the aims of the book: to promote critical and open-minded reflection on interpretive practices and processes in international law.

We are grateful to our contributors for their participation, and to Opinio Juris for hosting this discussion. We hope that the insights contained in Interpretation in International Law, and this symposium, will stimulate further research on interpretation that does not shy away from methodological innovation and creativity.

The Advantage for Palestine of a Slow Preliminary Examination

by Kevin Jon Heller

Nearly everyone treats Palestine’s membership in the ICC as a done deal; after all, the UN Secretary-General (UNSG) has accepted Palestine’s accession to the Rome Statute and the OTP has publicly stated that “since Palestine was granted observer State status in the UN by the UNGA, it must be considered a ‘State’ for the purposes of accession.” But neither the UNSG nor the OTP has final say over whether Palestine qualifies as a state; as Eugene Kontorovich, my friend and regular Israel/Palestine sparring partner, has repeatedly pointed out on Twitter (see here, for example), statehood is a legal issue that the ICC’s judges will eventually have to decide.

Unlike Eugene, I would be very surprised if the judges second-guessed the UNSG and the OTP and held that Palestine does not qualify as a state. But it’s certainly possible. So here is something for Palestine to consider: because the ICC’s judges cannot make a determination concerning Palestine’s statehood until the OTP has decided to formally investigate the situation, the longer the preliminary examination takes, the longer Palestine will have to make it more difficult for the judges to decide against it.

I don’t want to get into too much detail about the relevant provisions in the Rome Statute; a brief summary should suffice. Art. 15, which concerns proprio motu investigations — the current situation regarding Palestine, because the OTP treats an Art. 12(3) declaration as a request for an Art. 15 investigation — does not permit the Pre-Trial Chamber (PTC) to determine whether a situation “appears to fall within the jurisdiction of the Court” until the OTP has asked it to authorise a formal investigation. Art. 18, which in certain circumstances requires the OTP to defer to state investigations of specific suspects, also does not apply until the OTP has decided to formally investigate (whether proprio motu or on the basis of a state referral). And Art. 19, the basic complementarity provision, does not permit a state to challenge admissibility until there is a specific case pending and does not permit a suspect to challenge admissibility (which includes jurisdiction) until a warrant for his arrest or a summons for his appearance has been issued — both of which occur subsequent to the opening of a formal investigation.

There is, in short, only one party that can ask the PTC to decide a jurisdictional issue prior to the commencement of a formal investigation: the OTP itself. That’s Art. 19(3). And it’s safe to say that the OTP won’t ask the PTC to determine whether Palestine qualifies as a state before it has to.

That means, of course, that it could easily be years before the PTC gets to weigh in on the issue of Palestinian statehood. Why is that a good thing for Palestine? Most obviously, because it gives it more time to get its statehood ducks in a row — acceding to more international conventions, resolving internal political differences, seeking additional recognitions of Palestine as a state, etc. More importantly, though, it gives Palestine time to become an integral member of the Court, thereby increasing the institutional pressure on the PTC to conclude that it is a state. Assume that the OTP takes four years to open a formal investigation, which would be relatively quick by OTP standards. Palestine could — and should! — take advantage of that gap to pay dues each year to the ICC; to attend the annual sessions of the ASP (as it did as an observer in the 13th Session) and participate in its intersessional work; to nominate Palestine’s delegate to the ASP for a position in the Bureau; and (better still) to nominate a Palestinian as a judge. After four years of such involvement, it would be very difficult for the PTC to conclude that Palestine was not a state, given that such a decision would force the ASP to expel the Palestinian delegate, (presumably) refund four years of Palestine’s dues, and perhaps even unseat a Palestinian judge.

I’m sure some readers — particularly those who believe that Palestine cannot qualify as a state as long as Israel illegally occupies its territory — will find my strategy cynical. Perhaps it is — but it would hardly be the first time a state acted strategically with regard to an international organisation. After all, Israel is the culprit-in-chief in that regard; its favourite strategy, which is the height of cynicism, is to refuse to cooperate with an international investigation and then dismiss the results of that investigation as “one-sided” and thus biased. Moreover, I use the term “state” with regard to Palestine deliberately; contrary to the view of many pro-Israel commentators, the Montevideo criteria do not remotely doom Palestine’s claim to statehood. On the contrary, I believe Palestine has legally qualified as a state under those criteria for many years. But that is a subject for another day. (Interested readers can start with this brief, written by Errol Mendes.)

For now, Palestine needs to take full advantage of its admittedly provisional membership in the ICC. As a wise man once said, if it walks like a duck and quacks like a duck…

Weekly News Wrap: Monday, April 6, 2015

by Jessica Dorsey

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


Middle East and Northern Africa


  • An Indonesian court will rule on Monday on an appeal against President Joko Widodo’s refusal of clemency for two Australian drug convicts who are facing execution by firing squad.
  • North Korea fired four short-range missiles off its west coast on Friday in what South Korea called a bid to stoke tension during its annual joint military drills with the United States and has declared a no-sail zone for its ships off its east coast, South Korean media reported on Monday, suggesting more missile launches are possible before the U.S. defense chief visits Seoul this week.
  • A Chinese naval frigate has evacuated 225 foreign citizens from strife-torn Yemen, its foreign ministry said, marking the first time that China’s military has helped other countries evacuate their people during an international crisis.





Events and Announcements: April 5, 2015

by Jessica Dorsey

Calls for Papers

  • Turgut Ozal University School of Law, in cooperation with Association for Canadian Studies and IDI, invites scholars and policy-makers to submit paper proposals to International Conference on International Law and Domestic Policies. The Conference will take place on 30-31 October 2015 in Ankara, Turkey. The aim of this International Conference is to evaluate the impact of international law and transnational law on the legal orders of nation states in different national contexts. The importance of international law in an increasingly globalized world is duly and frequently acknowledged. However, it is difficult to say that international law produces the desired impact across different national legal orders. In this context, the aim of the Conference is to provide opportunities to discuss the interplay between international law and domestic policies. Besides focusing on the impact of international treaty and customary law, theConference also welcomes submissions dealing with the effects on domestic policies of other sources of globalized norms, such as the emergence of global common law arising from pressures for regulatory commonality, different trade and investment regimes, international sanctions and others. Scholars, Policy-makers, lawyers, judges and professionals from all disciplines are invited to submit a proposal to the conference organizing committee. For more information, including information on deadline for proposals and accommodation opportunities, please refer to the website of the conference.
  • The American Branch of the International Law Association has extended the deadline until April 10, 2015 on their earlier-issued call for proposals. The unifying theme for ILW 2015 is Global Problems, Legal Solutions: Challenges for Contemporary International Lawyers. ILW 2015 will explore the many roles that international law plays in addressing global challenges. The aim is to provide an opportunity for discussion and debate about the ways in which international law provides fundamental tools and mechanisms to address emerging global issues. ILW 2015 will offer engaging panels on current problems and innovative solutions in both public and private international law. The ILW Organizing Committee invites proposals to be submitted via the ILW Panel Proposal Submission Form located here.


  • On April 8, 2015, the International Committee of the Red Cross and the Georgetown University Law Center’s Military Law Society are sponsoring a panel at the Law Center in Washington, D.C. to consider the question of whether and how the United States might ratify the 1977 Additional Protocol I to the Geneva Conventions of 1949. This panel, addressing the topic: “Is it Time to Ratify AP I?” will consist of four distinguished European and North American legal experts, including: Major-General Blaise Cathcart, Judge Advocate General of the Canadian Armed Forces; Nicolas Guillou, Justice Attaché of the French Embassy in the United States; Christopher Harland, Legal Advisor, International Committee of the Red Cross (ICRC) Regional Delegation for the United States and Canada and William K. Lietzau, former Deputy Assistant Secretary of Defense for Rule of Law and Detainee Policy. The panel will be moderated by Richard “Dick” Jackson, Adjunct Professor of Law, Georgetown University Law Center. The event will take place on April 8, 2015 from 6:30 – 8:00 p.m, at the Georgetown University Law Center’s Bernard P. McDonough Hall, Room 201, 600 New Jersey Ave., N.W., Washington, DC 20001. This is a short two blocks from the Hyatt Regency Capitol Hill Hotel, where the American Society of International Law is holding its Annual Meeting next week. The event is free and open to the public. A wine and cheese reception will follow the event.


  • Transnational Dispute Management published a new special: TDM 2 (2015) Arbitration in the Middle East: Expectations and Challenges for the Future. Edited by Craig Shepherd and Mike McClure (Herbert Smith Freehills LLP) the papers in this special, which between them discuss the arbitral regimes in Bahrain, Egypt, Iran, Iraq, Jordan, Lebanon, Oman, Pakistan, Palestine, Qatar, Saudi Arabia, Syria, Tunisia, Turkey and the United Arab Emirates (UAE), together with investment treaty arbitration and general trends in the MENA (Middle East and North Africa) region, address the increasing use of arbitration in the Middle East, and the increasing use of Middle East seats.
  • University of Geneva Summer School in International Law will take place from June 15 – July 3, 2015 in Geneva. The University of Geneva is happy to invite applications for the Summer School in International Law. The Summer School in International Law, which is now in its third year, presents an excellent opportunity to learn from a wide range of expert international teaching staff in one of the world’s capitals of international law. The course is structured around three themes, one for each of the three weeks of the program: international economic law, international law and civil society, and international law and politics. Each theme is explored through a week-long “Foundations Course” and three to five “Snapshot Courses” on topics such as the creation of states, WTO law and neoliberalism, internet law, law without the state (transnational law), private international law, global governance, international commercial arbitration, controversial investment arbitration cases, the geopolitics of investment arbitration, the role of non-state actors in international institutions, the international law of intellectual property, and the resolution of international intellectual property disputes. Further information and application details are available online here.

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: April 4, 2015

by An Hertogen

This week on Opinio Juris, Kevin posted links to Justice in Conflict‘s symposium on Palestine and the ICC (1, 2), and commented on John Bellinger’s op-ed on the prosecution of ISIS through the ICC. Following the University of Southampton’s withdrawal of its permission for a conference on Israel, Kevin argued that Israel’s defenders use double standards when it comes to academic freedom. He also asked for reader recommendations for a good book on the practicalities of the re-establishment of diplomatic relations.

Duncan noted the usage of “will”, as opposed to “shall”, in the Iran nuclear deal, as an indication of the political, rather than the legal nature, of the commitments.

In a guest post, Sushma Nagaraj noted the Delhi High Court’s embrace of the Vienna Convention on the Law of Treaties.

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

Thank you for following us on Opinio Juris. Have a great weekend!

Guest Post: Law of the Sea Tribunal Adopts ‘Due Diligence’ Standard for Flag State Responsibility for IUU Fishing

by Craig H. Allen

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

The International Tribunal for the Law of the Sea (Tribunal) continued to develop the law of flag State responsibility in a 68-page advisory opinion issued on April 2, 2015 (Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC), ITLOS Case No. 21, Advisory Opinion of April 2, 2015). Five ITLOS judges wrote separate declarations or opinions.

A “Living” Law of the Sea Convention?

The April 2, 2015 advisory opinion was the first one issued by the full Tribunal. Four years earlier, the Tribunal’s Seabed Disputes Chamber had issued an advisory opinion, as it was expressly authorized to do under Article 191 of the 1982 UN Convention on the Law of the Sea (UNCLOS) (Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area [Request for Advisory Opinion submitted to the Seabed Disputes Chamber], ITLOS Case No. 17, Advisory Opinion of Feb. 1, 2011). In response to the SRFC request concerning IUU fishing, however, several States, including Australia, China, Ireland, Spain and the UK, objected that the Tribunal lacks jurisdiction to issue advisory opinions except in disputes involving the international seabed. Writing separately, Judge Lucky characterized the States’ jurisdictional objections as “cogent, clear and articulate, as well as considerably persuasive,” but he ultimately rejected them (Separate Opinion of Lucky, J.). In doing so, Judge Lucky opined that UNCLOS “is akin to (comparable with) a national constitution” and that, just as the “living constitution” doctrine advocates argue, UNCLOS “must ‘grow’ in accordance with the times.” (Id. ¶ 9). Oddly, in interpreting the Convention, Judge Lucky did not cite the relevant articles of the Vienna Convention on the Law of Treaties until much later in his opinion.

The Opinion

Jurisdictional issues aside, this latest advisory opinion brings needed definition to the law of State Responsibility with respect to UNCLOS. The opinion was issued in response to a 2013 request by the Sub-Regional Fisheries Commission (SRFC) established by seven West African States). The SRFC submitted four questions, principally regarding the obligations and liability of flag States for IUU fishing by their vessels in the exclusive economic zones (EEZs) of another State. In all, 20 judges participated in the decision. They unanimously held that the Tribunal had jurisdiction to issue the advisory opinion, citing Article 138 of the Court’s own rules. At the same time, the Tribunal noted that since the Tribunal was established in 1996 this was the first time an advisory opinion had been issued by the full Tribunal.

In answering the questions presented, the Tribunal distinguished the flag State’s responsibility under UNCLOS from its liability. With respect to the latter question, the Tribunal declared that the liability of the flag State does not arise from a failure of vessels flying its flag to comply with the applicable laws and regulations, because “the violation of such laws and regulations by vessels is not per se attributable to the flag State” (¶ 146). Instead, the liability of the flag State arises from its failure to comply with its own “due diligence” obligations. Thus, the flag State will not be liable if it has taken “all necessary and appropriate measures to meet its ‘due diligence’ obligations” to ensure that vessels flying its flag do not conduct IUU fishing activities in the EEZ of the coastal States (¶ 148).

The due diligence standard adopted by the Tribunal can be traced to the arbitration panel’s decision in the CSS Alabama case, which involved Great Britain’s responsibility for damages done by the CSS Alabama, a Confederate States warship built in Great Britain, in violation of that State’s neutrality in the Civil War (Alabama claims of the United States of America against Great Britain, Award of Sept. 14, 1872, XXIX Reports of International Arbitration Awards 122, 129.) The standard was also adopted in the ITLOS Seabed Disputes Chamber’s 2011 advisory opinion (¶¶ 110-117), in which it cited the ICJ’s 2010 decision in the Pulp Mills on the Uruguay River case (2010 ICJ Rep. 14, 79, ¶ 197).

Importantly, in its opinion the Tribunal cited flag State responsibilities under Articles 58.3 (rights and duties of other states in the EEZ), 62.4 (utilization of living resources of the EEZ), 94 (duties of the flag State) and 192 (general obligation to protect and preserve the marine environment). In a separate opinion, Judge Paik elaborated on the flag States’ obligations under Article 94. Thus, the opinion’s examination of flag State responsibility and the due diligence standard is likely to find application beyond the context of IUU fishing in the EEZ.

John Bellinger’s Op-Ed on ISIS and the ICC (Updated)

by Kevin Jon Heller

The op-ed, which appears in today’s New York Times, argues that the ICC is the most appropriate venue for prosecuting ISIS’s many international crimes. I have great respect for John, who is unique among former high-ranking US government officials in his willingness to defend the ICC, but the op-ed makes a number of arguments that deserve comment.

It certainly makes more sense for the court’s prosecutor to investigate the Islamic State than to investigate the United States or Britain for treatment of detainees or Israel for its handling of last year’s Gaza conflict, as some activists have called for.

There is no question that ISIS is responsible for horrific international crimes that deserve to be prosecuted. But does it “certainly make more sense” for the ICC to prosecute those crimes than British torture in Iraq, US torture in Afghanistan, and Israel’s vast array of crimes against Palestinian civilians in Gaza? That’s not self-evident. Readers know my skepticism toward the ICC investigating the situation in Palestine, but the expressive value of prosecuting UK or US military commanders and political leaders for torture would be incalculable — it would get the ICC out of Africa; it would affirm that torture, a crime that rarely involves a large numbers of victims, is unacceptable and deserving of prosecution; and — of course — it would demonstrate that no state, no matter how powerful, is immune from international criminal justice.

At a minimum, the Security Council should ask the court to investigate the numerous offenses committed by the Islamic State that fall within the court’s mandate.


A Security Council request would be necessary because Iraq and Syria, where the Islamic State is operating, are not parties to the Rome Statute (the treaty that created the court) and are not otherwise subject to the court’s jurisdiction.

A Security Council referral is not actually necessary, because the ICC’s jurisdiction is not simply territorial. The Court can also prosecute any international crime committed by a national of a state that has ratified the Rome Statute. Many ISIS leaders are nationals of ICC member-states — including Jihadi John, who is a UK national. So the ICC could prosecute those leaders tomorrow if it had them in custody. Indeed, Fatou Bensouda has already mentioned the possibility of such nationality-based prosecutions.

Moreover, a Security Council referral may be more trouble than it’s worth. John himself notes a major problem: if the territorial parameters of any such referral exposed members of the Syrian government to ICC jurisdiction, Russia and/or China would almost certainly veto the referral. And what if the referral exposed Syrian rebels to ICC jurisdiction? I can’t imagine the US, France, and the UK would be too keen about that — not least because it would provide the ICC with a backdoor to prosecuting their nationals for aiding and abetting rebel crimes.

The United States has reason to be concerned about inappropriate and politicized investigations of the United States and Israel.

I don’t see why, given that the ICC has not opened a formal investigation in Afghanistan despite having examined the situation for eight years and has only had jurisdiction over Israel’s crimes for a few months. Moreover, John never explains why any ICC investigation of the US or Israel would necessarily be “inappropriate and politicized,” given that both states have quite obviously committed crimes within the Court’s jurisdiction. Why should the ICC only prosecute the US’s enemies — never its friends, and certainly never the US itself? Americans and Israelis might like that idea, but I imagine few others would accept it.

[B]ut the International Criminal Court still has an important role to play in investigating and prosecuting acts of genocide, war crimes and crimes against humanity — all of which have reportedly been committed by the Islamic State.

I’m not so sure, at least in the context of ISIS — and this is my basic issue with John’s op-ed. Does the ICC really need yet another situation to investigate, given its already overtaxed resources? And do we really want the Security Council to refer the ISIS situation, given that there is almost no chance it will finance the resulting investigation? (See, for example, the failed Syria resolution.) Moreover, why should the ICC prosecute ISIS leaders when states like the US, the UK, and Japan (and Germany, and France, and…) are just as capable of prosecuting those leaders themselves — if not more so? They have investigative and prosecutorial resources the ICC can only dream of. So why should the ICC do their work for them?

I’ve said it before, and I’ll say it again: we need to stop assuming that the ICC is always the best venue for prosecuting international crimes. It’s not. It’s a weak Court with more failures than successes on its ledger. Even under ideal circumstances — unlikely to exist — it would never be able to prosecute more than a handful of ISIS leaders. And if past cases are any indication, there is no guarantee those prosecutions would lead to convictions. So if states really want to bring ISIS to justice, the solution is there for all to see.

They should do the job themselves.

NOTE: I am not implying that John invented the idea that the ICC should investigate ISIS crimes. As he notes in his op-ed, the new UN High Commissioner for Human Rights has previously suggested the same thing. But that in no way changes my position — and I think it’s unfortunate that High Commissioners see the ICC as the first resort instead of the last, even in situations (such as ISIS) where, unlike states, the ICC has no ability to effectively investigate. The previous High Commissioner exhibited the same problematic tendency, calling on the Security Council to refer Syria to the ICC despite the fact that the Court would be powerless to investigate Syrian and rebel crimes as long as the conflict continues. Security Council referrals only make sense after a conflict has ended — and not even there, unless the Security Council is willing to give its referrals teeth by funding the subsequent investigation and punishing states for not cooperating with the ICC, which it has shown no interest whatsoever in doing. Do we really need more failed ICC investigations like the one in Darfur?

The Iran Deal as a Political Commitment

by Duncan Hollis

I have to teach in 5 minutes so I just wanted to post a quick link and one comment on the Iran deal reached earlier today.  Those who want to read the joint statement itself — you can read it here.  My first reaction, based on my primer of a few weeks ago, is that it sure looks like the deal is taking the (widely anticipated) political commitment form, supplemented with the idea that a subsequent UN Security Council resolution will provide international legal force to it and the further details to be elaborated in the coming weeks.

My one comment is that this deal reflects an interesting development in US treaty/political commitment practice.  It signals (I think) the death knell of the old “will” vs. “shall” debate in determining whether a commitment was intended to have legal force or not.  For years, countries like the UK insisted that the verb “will” (which they frequently deploy in MOUs) per se reflected a lack of legal intention as opposed to the verb “shall”, which they believed was indicative of a treaty commitment.  In contrast, the United States took the position that “will” in many instances seemed indistinguishable from “shall” and thus the mere shift in wording could not, by itself, provide sufficient evidence of whether a treaty or political commitment was intended.  As a result, the United States regularly sought to avoid using both “will” and “shall” in its political commitments. Many hours and negotiating nights were, if you can believe it, spent wrestling over this issue.

Well, looking at the deal reached today, I count quite a few uses of the verb “will”.  Thus, it seems to me (unless I’m missing something, which is entirely possible), the United States may have finally conceded to the simplicity of the Queen’s English and allowed that using will, as in this deal, can be a way to signal to readers the parties intend a political commitment and not a treaty.

For those who want more, Dan Joyner has a more substantive take over at his blog.

Guest Post on the ICC and Palestine at Justice in Conflict

by Kevin Jon Heller

My contribution to the symposium is now available. Here is the introduction:

I want to start with a prediction, one I’ve made before and still subscribe to: the ICC will never open a formal investigation into the situation in Palestine. People of all political persuasions seem to think that the ICC is somehow eager to leap into the most politicised conflict of the modern era. I disagree, not because the situation doesn’t deserve to be investigated – I think it is one of the gravest situations in the world – but because I don’t think we take the ICC’s institutional interests into account nearly enough when we prognosticate about what it might do. And I see very little upside for the ICC in opening a formal investigation.

My thanks to Mark Kersten for posting it — and to Kirsten Ainley for organising the roundtable at the LSE on which it’s based.

Guest Post: Indian Court embraces the Vienna Convention on Law of Treaties

by Sushma Nagaraj

[Sushma Nagaraj is an Advocate practicing commercial and constitutional law before the Bombay High Court, India. She assisted Mr. Kevic Setalvad, the Senior Advocate who represented AWAS Ireland Ltd. (the Petitioner before the Honorable Delhi High Court) with legal research on aviation law and public international law.]

Indian Courts have, for the most part been generous in applying International Law but recently, the Delhi High Court in AWAS Ireland v. Directorate General of Civil Aviation (W.P.(C) 671/2005, Judgment delivered on 19th March 2015, available here) marched a step ahead.

AWAS, which had leased aircrafts to Spice Jet, an Indian low cost carrier initiated writ proceedings in the Delhi High Court seeking de-registration of the leased aircrafts, upon termination of the lease agreements with Spice Jet for default in payment of lease rents. The High Court applying the Cape Town Convention on International Interest in Mobile Equipment, 2001 as also the Aircraft Protocol to the Cape Town Convention, to which India is a party, sanctioned de-registration of the aircrafts.

The Cape Town Convention and Aircraft Protocol have not been expressly, by legislation, adopted as a part of the Indian municipal law. All the same, the Supreme Court of India has, in plethora of cases including Aban Loyd Chiles Offshore v. UOI ((2008) 11 SCC 439; available here) consistently held that in the absence of municipal law, treaties can be looked into, if they are not in conflict with municipal law. In Vishaka v. State of Rajasthan ((1997) 6 SCC 241; available here) and National Legal Services Authority v. Union of India, ((2014) 5 SCC 438; available here), the Supreme Court of India applied international law even when then was no municipal law holding field in a certain area. In T.N.Godavarman Thirumulpad v. Union of India ((2012) 4 SCC 362; available here), the Supreme Court laid down a short but categorical directive – that treaties not contrary to municipal law are deemed to be incorporated in the municipal law. This was sufficient ammunition for India to apply the Cape Town Convention and the Aircraft Protocol.

While this is noteworthy, there is something else that makes the High Court judgment distinctive. In AWAS, the High Court ventured further. The High Court applied the principles enshrined in the Vienna Convention of Law of Treaties, 1969. What makes AWAS significant is that India is neither a signatory nor has it ratified the Vienna Convention. The High Court applying the principles of pacta sunt servanda in Article 26 and the general rules of interpretation of a treaty in Article 31 of the Vienna Convention, observed that an international convention is required to be interpreted in good faith, in accordance with the ordinary meaning given to the terms of the treaty, in their context, and in the light of its stated object and purpose. The High Court also applied the principle in Article 27 of the Vienna Convention which casts an obligation on a State to not only remain bound by the terms of a treaty entered into by a State but also, to not cite internal law as a justification for failure to perform its obligation under a treaty.

The Court did not debate whether the principles of the Vienna Convention constituted customary international law. This was evitable since the Supreme Court of India had, in Ram Jethmalani v. Union of India ((2011) 8 SCC 1; available here) already recognized that the Vienna Convention codifies many principles of customary international law.

AWAS marks a milestone, not only for India but also for the international community since principles engraved in the Vienna Convention, which are widely perceived as customary international law, have not just been acknowledged, but embraced by the High Court. AWAS is, without doubt, a small yet a significant contribution in the evolution of international law.