Archive for
September, 2015

Guest Post: Promising Development in Protecting Cultural Heritage at the ICC

by Matt Brown

[Matt Brown is a current LLM student at Leiden University, studying Public International Law, with a specific interest in international criminal law, transitional justice and cultural heritage law. He tweets about these and other topics @_mattbrown.]

The International Criminal Court concerns itself with the ‘most serious crimes of concern to the international community.’ Often we understand this term to reflect examples such as the atrocities currently taking place in Syria, where the specific target is human and impact is measured by death toll. Last weekend’s surrender of Mr Ahmad Al Mahdi Al Faqi to the ICC however, challenges us to rethink our conception of war crimes to include the broader, but often forgotten concept of cultural destruction. It also serves as a positive example of domestic cooperation with the Court as it was Niger who transferred Mr Al Faqi to the Court.

Mr Al Faqi is suspected under Article 8 (2) (e) (iv) ‘of committing war crimes in Timbuktu between 30th June and 10th July 2012, through ‘intentionally directing attacks against buildings dedicated to religion and or historical monuments’. Specifically, the charges relate to the destruction of nine mausoleums and the Sidi Yahia mosque in Timbuktu and form part of the Court’s three-year interest in Mali, originating from Mali’s self-referral in 2012. To this day, UNESCO is working with other international actors and local groups to rebuild the mausoleums.

This case, although a first for the ICC, builds upon a body of law developed by the ICTY. This includes the Pavle Strugar case, where Strugar was found guilty on the basis of superior criminal responsibility for the ‘destruction of institutions dedicated to, inter alia, religion, and the arts and sciences’. International Criminal Law’s approach to cultural heritage has several drawbacks, but chiefly it suffers from a fragmentation and hierarchical approach between instances of international armed conflict, non-international armed conflict and internal disturbances. The decision therefore of the ICC to prosecute ‘cultural crimes’ could help to consolidate the principles of cultural heritage law and bring greater consistency to the protections afforded between the different forms of conflict.

It also promises to resolve a second issue, namely that the enforcement of cultural heritage protection and subsequent prosecution is too often lacking. With the destruction that ISIS continues to cause in Palmyra, it offers a promising hint that if the jurisdictional issues that currently prevent prosecuting senior ISIS leaders can be overcome, the prosecution of cultural damage will be on the agenda.

Important questions remain however about the Court’s interpretation of the regrettably narrow Article 8 provision within the Rome Statute­­, which reflects the traditional and outdated interpretation of culture as constituting solely of tangible objects. This approach finds its roots in the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, which refers in Article 1 (a) to ‘movable or immovable property of great importance to the cultural heritage of every people’. This conception of culture based on the tangible nature of buildings, libraries, churches and historical sites is furthered in the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage that refers in Article 1 to monuments and architectural works of outstanding universal value. Reflecting a definition of cultural heritage heavily influenced by Western thought, steeped in the value of archeological, literary and scientific importance.

Even with the entry into force of the Convention for the Safeguarding of the Intangible Cultural Heritage, the charges reflect both a promising intention to bring the perpetrators of cultural destruction to justice, but equally illustrate the constructed nature of culture, which overlooks the intangible aspect of cultural heritage that cannot be rebuilt with simple bricks and mortar. This case will be interesting for a variety of reasons, but we can hope that it offers an opportunity to build on the Prosecutor’s acknowledgment that the charges reflect the ‘callous assault on the dignity and identity of entire populations and their religious and historic roots.’

We should consider this an important breakthrough in strengthening both the enforcement of cultural heritage law and the ICC itself. In dealing with a definition that is slowly emerging from decades of Western bias, this case offers the victims of cultural heritage destruction the chance to be heard and to push for greater recognition of the impact is has upon them as people(s). The ICC therefore has a golden opportunity to improve its reputation in Africa by listening to victims and demonstrating that international law is responsive to the voices and concerns of third-world approaches and can evolve to take account of these. The domestic co-operation between Mali, Niger and the Court to bring Mr Al Faqi to The Hague also offers great hope that the Court can work effectively with African State Parties, despite the recent problems it faced in South Africa.

This news is an exciting development in efforts to enhance protection of cultural heritage and bring the perpetrators of cultural attacks to justice. At the same time however, it throws up many more questions about the broader definition of ‘culture’, victim participation in cultural matters, and whether this could give the Court a unique opportunity to tackle an issue of growing importance in international law.

That “Broad Consensus” for Unwilling/Unable Just Got Less Broad

by Kevin Jon Heller

A few days ago, I pointed out that Kate Martin’s “broad consensus that there is a right to use military force in self-defense when the host country is unable or unwilling to stop the attack” actually includes no more than four of the world’s 194 states. That consensus is not exactly broad — and it looks even shakier now that Russia has apparently rejected the “unwilling or unable” test in the context of Syria:

On Saturday, France launched a campaign of airstrikes against the Islamic State in Syria. Commenting on the effort, Russian Foreign Ministry spokeswoman Maria Zakharova pondered what kind of conception of ‘self-defense’ would drive one country to carry out an operation to bomb another without that country’s explicit permission.

Earlier, Prime Minister Manuel Valls was cited by French media as saying that Paris’s bombing campaign constitutes self-defense. “We are acting in self-defense,” Valls noted, according to Reuters.

In a post on her Facebook page, Zakharova pondered that “it would be nice to know more about this concept of self-defense, in the form of air strikes [on the territory of Syria,] a state which did not attack anyone, and without its consent, and about this concept’s compliance with international law.”

The spokeswoman referred to the fact that in its air campaign against ISIL, the Western coalition never once found the need to consult with Syria’s legitimate government, and on the contrary, has repeatedly declared that the elected government of Bashar Assad cannot be part of Syria’s future.Zakharova noted that she found it entertaining that “the referendum in Crimea is called an annexation, but air strikes conducted without the approval of the Security Council or of the receiving side is self-defense.”

The spokeswoman emphasized that while “it’s clear that the Islamic State is a threat to the entire world,” first two questions must be answered: “First, who was it that created ISIL? And second, on what basis are you acting on the territory of a sovereign state, bypassing a legitimate government which not only does not support, but is selflessly fighting against ISIL?”

Zakharova concluded that “this is not international law; this is its abolition in front of a shocked international community.”

If I was being picky, I would acknowledge that Zakharova did not specifically reject “unwilling or unable.” Her emphasis on the requirement of Syria’s consent nevertheless implicitly rejects “unwilling or unable” far more clearly than the statements by various governments that supposedly — according to Ashley Deeks — support the test. So it is more than fair to count Russia in the anti-“unwilling or unable” camp.

If you’re keeping score at home, that makes it: at most four states that support “unwilling or unable”; at least one state that rejects it.

And yet scholars claim that there is a “broad consensus” in favour of the test. Thus does method die not with a bang, but a whimper.

Weekly News Wrap: Monday, September 28, 2015

by Jessica Dorsey

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

Africa

  • At least 21 people were killed in the capital of Central African Republic on Saturday and around 100 others were wounded as Muslims attacked a mainly Christian neighborhood, senior hospital officials and a government spokesman said..
  • A Norwegian-flagged ship that was held in Kenya for more than a week over undeclared weapons belonging to the United Nations has been released, the owners of the vessel said.

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Events and Announcements: September 27, 2015

by Jessica Dorsey

Announcements

  • Queen’s University Belfast has announced a position for a Lecturer in Human Rights Law. The closing date on applications is 5 October 2015. See the vacancy here.

Calls for Papers/Abstracts:

  • The American Society of International Law’s Lieber Society Announces a call for papers for the 2016 Richard R. Baxter Military Writing Prize. Persons submitting papers need not be ASIL members and can be citizens of any country but must be an active member of a state’s regular or reserve armed forces. Papers may address any aspect of international humanitarian law/law of armed conflict. Papers must be written in english and may not exceed 35 pages single spaced or 70 pages double spaced with 12 point font and 1inch/2.5 cm margins.  For more information, please contact Professor Chris Jenks at cjenks [at] smu [dot] edu
  • Averting the Battle?: Conflict Prevention and State-to-State arbitration in the context of International Investments. This call for papers of the Conflict Resolution Quarterly (CRQ) is designed to encourage a scholarly discussion on the advantages and obstacles associated to the use of both conflict prevention mechanisms and State-to-State dispute arbitration in the context of international investments. All articles should include a 100-word abstract, reflect an understanding of previous discussions in the literature on the chosen question (a literature review), and range from 2500 to 7500 words in length. CRQ uses a double-blind peer review process to assure fair and equal access to all authors. The deadline for submissions is January 15th 2016. More information can be found here.  Additional questions can be submitted to the guest editors:  Katia Fach Gómez, Professor, Universidad de Zaragoza (Spain), katiafachgomez [at] gmail [dot] com, and Manuel A. Gómez, Professor, Florida International University, magomez [at] fiu [dot] edu.
  • The Board of Editors of Trade, Law and Development [TL&D] is pleased to invite original, unpublished manuscripts for publication in the Summer ‘16 Special Issue of the Journal on Trade & Public Health (Vol. 8, No. 1). The manuscripts may be in the form of Articles, Notes, Comments, and Book Reviews. All manuscripts received by March 15, 2016, pertaining to any area within the purview of international economic law, will be reviewed by the editorial board for publication in the Summer ‘16 issue. TL&D aims to generate and sustain a democratic debate on emerging issues in international economic law, with a special focus on the developing world. Towards these ends, we have published works by noted scholars such as Prof. Petros Mavroidis, Prof. Mitsuo Matsuhita, Prof. Raj Bhala, Prof. Joel Trachtman, Gabrielle Marceau, Simon Lester, Prof. Bryan Mercurio, Prof. E.U. Petersmann and Prof. M. Sornarajah among others. TL&D also has the distinction of being ranked the best journal in India across all fields of law for three consecutive years and the 10th best trade journal worldwide by Washington and Lee University, School of Law [The Washington & Lee Rankings are considered to be the most comprehensive in this regard]. For more information, please go through the submission guidelines available here or write to us at editors [at] tradelawdevelopment [dot] com.
  • Utrecht Journal of International and European Law is issuing a Call for Papers for its upcoming Special Issue (82nd edition) on ‘Intellectual Property in International and European Law’. With technological advancement and innovative practices occurring ever more frequently, individuals and undertakings often turn to intellectual property law to protect their ideas and seek remedies where appropriate (e.g. the recentApple v Samsung design dispute). Recent developments in intellectual property are now a regular feature in popular media and a much-discussed topic amongst the general public. As such, the Utrecht Journal will be dedicating its 2016 Special Issue to ‘Intellectual Property in International and European Law. The Board of Editors invites submissions addressing legal issues relating to intellectual property law from an international or European law perspective. Prospective articles should be submitted online via the Journal’s website and should conform to the Journal style guide. Utrecht Journal has a word limit of 15,000 words including footnotes. For further information please consult our website or email the Editor-in-Chief at utrechtjournal [at] urios [dot] org.

Events

  • PluriCourts – Center of excellence at the University of Oslo, organizes a symposium on The Present and Future Role of Investment Treaty Arbitration in Adjudicating Environmental Disputes (Oslo, November 5-6, 2015). Much of the discourse and analysis on this topic has focused on issues of fragmentation, conflict, and the balancing of obligations between legal regimes. But can international investment law and (inter)national environmental law be supportive and mutually complementary? The symposium will focus on investment treaty arbitration from a forward-looking perspective: how can future practice might be shaped or reformed in a way that can both promote environmental sustainability and protect responsible and legitimate foreign investments. Registration for the symposium is now open.
  • The Centre of Excellence for International Courts (iCourts) is holding an interdisciplinary workshop on “Trust, Social Capital and Networks: A Different Perspective on International Courts”. The workshop, which will take place in February 4 and 5th 2016 at the Faculty of Law of the University of Copenhagen (Denmark), aims to provide participants with the opportunity to think through and develop a new research agenda on social capital, networks and trust to be applied to understand International Courts and legal regimes. The workshop will be open to new participants PhD researchers, junior and senior scholars from international institutions working on this topic with an empirical approach. Further details about the call might be found here. The proposals should be submitted by the 15th of October to Juan A. Mayoral – juan [dot] mayoral [at] jur [dot] ku [dot] dk

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.

Why It’s Counterproductive to Discuss an MH17 Tribunal

by Kevin Jon Heller

States whose nationals died in the attack on MH17 were understandably upset when Russia vetoed a Security Council resolution that would have created an ad hoc tribunal to prosecute those responsible for the attack. Their idea to create a treaty-based court, however, is simply not helpful:

Australia’s foreign minister, Julie Bishop, will meet with her counterparts from Belgium, Malaysia, the Netherlands and Ukraine on Tuesday during the annual United Nations general assembly meeting.

One of the proposals is for a tribunal similar to that established to prosecute Libyan suspects over the 1988 bombing of a Pan Am flight over Scotland.

Nations that lost some of the 298 passengers and crew in the MalaysiaAirlines disaster over eastern Ukraine in July 2014 are also looking at launching separate prosecutions.

A report by the Dutch led-investigation team, set to be published on 13 October, is understood to include evidence the plane was brought down by a Russian-made Buk missile fired from separatist territory in eastern Ukraine.

Russia has denied any involvement but in July used its veto power at the UN to block a resolution that would have formed a tribunal to bring the perpetrators to justice.

There is no question the victim states could create a tribunal via treaty — they would simply be delegating their passive-personality jurisdiction to the tribunal. The ICC is based on similar pooling of jurisdiction.

But what would creating such a tribunal accomplish? A treaty-based tribunal might have some ability to investigate the attack, given that MH17 was flying over non-Crimea Ukraine when it was shot down. But how would it get its hands on potential defendants? Pro-Russian separatists are almost certainly responsible for the attack, which means that the suspects are likely to be either in Russia-annexed Crimea or in Russia proper. Either way, the tribunal would have to convince Russia to surrender potential defendants to it — and Russia would have no legal obligation to do so as a non-signatory to the treaty creating the tribunal. That’s the primary difference between a treaty-based tribunal and a tribunal created by the Security Council: the latter could at least impose a cooperation obligation on Russia and sanction it for non-compliance. The tribunal being contemplated by the victim states could do no more than say “pretty please.” And we know how that request would turn out.

There is also, of course, that little issue of the ICC. Earlier this month, Ukraine filed a second Art. 12(3) declaration with the Court, this one giving the Court jurisdiction over all crimes committed on Ukrainian territory since 20 February 2014 — which includes the attack on MH17. So why create an ad hoc tribunal that would simply compete with the ICC? To be sure, the Court would also have a difficult time obtaining potential defendants, given that Russia has not ratified the Rome Statute. But it seems reasonable to assume, ceteris paribus, that an international court with 124 members is more likely to achieve results than a multinational court with five members. Moreover, there would be something more than a little unseemly about Australia, Belgium, and the Netherlands creating a treaty-based tribunal to investigate the MH17 attack. After all, unlike Russia, those states have ratified the Rome Statute.

The problem, in short, is not that the international community lacks an institution capable of prosecuting those responsible for the attack on MH17. The problem is that the international community has almost no chance of getting its hands on potential defendants. So until they can figure out how to get Russia to voluntarily assist with an investigation, victim states such as Australia and the Netherlands would be better off remaining silent about the possibility of a treaty-based tribunal. Discussing one will simply raise the hopes of those who lost loved ones in the attack — hopes that will almost certainly never be realised.

A “Broad Consensus” — of Between Two and Four States

by Kevin Jon Heller

Yes, the “unwilling or unable” test marches on. The latest step forward is a Just Security blog post by Kate Martin, the Director of the Center for National Security Studies, that cites absolutely nothing in defense of the test other than another scholar who cites almost nothing in defense of the test. Here is what Martin says in the context of the UK’s recent drone strikes in Syria (emphasis mine):

Some issues raised by the UK Article 51 legal theory are less controversial than others. The US and other states understand customary international law to include the right to use military force in self-defense against armed attacks, and claim the right to use military force under Article 51 outside of an armed conflict. As Lubell has noted, there is support for reading Article 51 as justifying the use of military force against non-state actors. There is broad consensus that there is a right to use military force in self-defense when the host country is unable or unwilling to stop the attack.

And what does Martin offer in support of this “broad consensus”? A link to a blog post at Lawfare by Ashley Deeks, in which Deeks (1) correctly points out that the US and UK both support “unwilling or unable,” (2) claims that “France appears to be prepared to invoke the ‘unwilling or unable’ concept in the Syria context,” and (3) states that Australia is “apparently relying on a collective self-defense of Iraq/unwilling and unable theory.”

So at most there is a “broad consensus” of four states in support of “unwilling or unable.” And perhaps there are only two. That’s quite a consensus.

This isn’t even instant custom. This is custom by scholarly fiat.

ICJ Rules (14-2) It Has Jurisdiction to Hear Bolivia’s Claim Against Chile

by Julian Ku

So the ICJ ruled today (14-2) that the Court does have jurisdiction to hear Bolivia’s claim that Chile has violated its legal obligation to negotiate “sovereign access to the sea” despite a 1904 Treaty that had settled the borders between the two countries.  I have been super-critical of Bolivia’s claim, going so far as to suggest there was a slam-dunk case against admissibility and jurisdiction since the basis of jurisdiction, the Bogotá Treaty, excludes cases where dispute has been settled by “arrangement” between the parties.  I suggested on Tuesday that perhaps the Court would take the case after all, despite the weaknesses of Bolivia’s case, and I received some tough criticism from commenters suggesting Bolivia has a very strong case for jurisdiction.

I still think Bolivia (and the commenters) are wrong, but obviously 14 judges of the ICJ disagree with me.  I’ve said my piece, so I won’t beat a dead horse (for too much longer).  I will only excerpt below Professor Harold Koh’s pithy explanation (from his oral presentation) as to why granting jurisdiction here is going to lead to lots of bad consequences.

10. Under Bolivia’s novel theory, by clever pleading, applicants could manufacture jurisdiction in this Court regarding previously settled matters. And this Court can expect to hear many more preliminary objection sessions like the one yesterday, replete with snippets of speeches, ministerial statements, and diplomatic exchanges as reasons to avoid the jurisdictional bar of Article VI. Notwithstanding Mr. Akhavan’s effort to underplay, Bolivia’s theory would doubtless encourage unilateral attempts to re-litigate the continent’s history and borders. The careful limits established by the Pact of Bogotá would become increasingly meaningless.

11. Mr. President, Members of the Court, the stakes here are larger than the interests of just these two Parties. The two treaties relevant to jurisdiction are part of a larger treaty network that binds Bolivia and Chile. The Pact of Bogotá succeeded in barring existing territorial settlements and other settlement matters from being reopened at the sole initiative of one State. But as Sir Daniel recounted, during the nineteenth and twentieth centuries, at least 12 separate treaties Bolivia settled disputed boundaries not just with Chile, but also with all four of its other neighbours106. May Bolivia now come before this Court to seek an order directing renegotiation of all of those other borders as well? And even if Bolivia did not, could those other regional partners also come to the Court seeking an order directing renegotiation of their borders?

Open Letter from International Lawyers to EU States, the European Union and European Publics on the Refugee Crisis in Europe

by Başak Çalı

[Dr. Başak Çalı is Director for the Center of Global Public Law and Associate Professor of International Law at Koç University, Turkey. She the secretary general of the European Society of International Law. The following is written in her personal capacity.]

It is a rare event for international lawyers to overwhelmingly agree on the content, scope and interpretation of international law. This open letter (.pdf) from 674 international lawyers and practitioners from across the globe, including leading experts in international refugee law, concerning international law obligations to those seeking refuge is one example of this. The letter emerged from a session on ‘Refugee Crisis and Europe’ that took place at the 11th Annual Conference of the European Society of International Law in Oslo on 12th September 2015. It was open for signature for just two days, from 21st September until midnight on 22nd September 2015. The letter has been sent to EU leaders ahead of their informal meeting on migration. Due to overwhelming demands from international lawyers and EU’s ongoing discussion of the issue, the letter has been re-opened for signature until 28 September 2015 Midnight CET.

The text of 22 September states:

We, the undersigned international lawyers, gathered at the European Society of International Law 11th Annual Meeting in Oslo on 12th September 2015, and other international law scholars and experts, condemn the failure to offer protection to people seeking refuge in Europe, and the lack of respect for the human rights of those seeking refuge.

In particular, we express our horror at the human rights violations being perpetrated against those seeking refuge, in particular the acts of violence, unjustified coercion and arbitrary detention.

We note that European states have obligations not only to refugees and migrants on their territories, but that international refugee law rests on international responsibility sharing. The world’s refugees are disproportionately outside Europe. We note that over nine-tenths of Syrian refugees are in five countries, Turkey, Lebanon, Jordan, Egypt and Iraq. We note that around one quarter of Lebanon’s population comprises refugees.

We note that all European states have obligations not only to refugees as defined under the 1951 Convention on the Status of Refugees, but also to those protected against return under international human rights law and customary international law. We note that this broad duty of non-refoulement protects all those at real risk of serious human rights violations if returned. They should be afforded international protection. EU Member States have further obligations under EU law.

We urge European states and the EU to alleviate the humanitarian crisis, prevent further loss of life in dangerous journeys to Europe by providing safe passage, and live up to their obligations in international and EU law.

We recall the legacy of Fridtjof Nansen, the first League of Nations High Commissioner for Refugees, and the initiator of the Nansen passport, created to facilitate the safe passage and legal migration opportunities for refugees and stateless persons.

We urge European states and the EU to:

– meet their obligations of international responsibility-sharing, to resettle significant numbers of refugees and provide aid to countries hosting large numbers of refugees.

– as regards those seeking protection in Europe, abandon those policies which prevent safe and legal access to protection. The UNHCR estimates over 2,860 people have died at sea trying to get to Europe this year alone. Suspending carrier sanctions and issuing humanitarian visas would largely prevent the need for those seeking refuge to make dangerous journeys.

– respect and protect the human rights of those seeking refuge once they are in Europe, including by enabling them to access asylum procedures or ensuring safe passage to countries where they wish to seek international protection.

– immediately suspend Dublin returns of asylum-seekers to their first point of entry, but ensure that its rules on family reunification are implemented fully and swiftly.

– relocate asylum-seekers and refugees in a manner that respects the dignity and agency of those relocated, and increases Europe’s capacity to offer protection.

– replace the Dublin System with one which accords with international human rights law and respects the dignity and autonomy of asylum-seekers, and supports international and intra-European responsibility-sharing.

– implement fair and swift procedures to recognize all those in need of international protection.

– while claims are being examined, afford those in need of international protection, at a minimum, the reception conditions to which they are entitled in international human rights and EU law.

– respect the right to family life, including positive obligations with regard to family unity, facilitation of swift family reunification and family tracing.

– treat all refugees, asylum-seekers and migrants with dignity and respect, respecting and protecting their human rights, irrespective of status.

For the current list of signatures, please see this page.

How Not to Wish Us a Happy Yom Kippur

by Kevin Jon Heller

Wishing Jews a happy Yom Kippur — good. Doing so over an image of the yellow star Jews were forced to wear by the Nazis — not so much:

irviz3hd7muyk9xdcprr

Not surprisingly, WGN Chicago has since apologized.

Book Symposium: Cyber War and the Question of Causation

by Jens David Ohlin

Thanks to Kevin Govern and Duncan Hollis for providing the two previous posts (here and here) in this book symposium on Cyber War: Law and Ethics for Virtual Conflicts.

In my post, I want to explore the difficulties arising from causal investigations in cyber attacks.

Everyone knows that the increasing threat of cyber attacks will place immense pressure on the operational capacities for various intelligence and defense agencies. Speak with anyone in military operations (from several countries), and their lists of security concerns are remarkably similar: Russia, ISIS, and cyber (in no particular order). What is more controversial is whether the current legal regime regarding jus ad bellum and jus in bello is sufficient to adequately regulate cyber-attacks and cyberwar, or whether new legal norms should be developed to specifically address these issues.

My own view, which is the focus of my chapter on Cyber-Causation, is that there is insufficient clarity right now regarding the required causal connection between a cyber attack and its kinetic consequences, especially with regard to what counts as an armed attack for purposes of triggering the right to self-defense under Article 51, and what counts as an attack for purposes of jus in bello. I argue that the lacuna is not terribly surprising since the law of war has generally avoided issues of causation because, unlike tort and criminal law, issues of causation are usually (with some notable exceptions) fairly uncontroversial in wartime. Cyber might change that.

Let me explain in greater depth why I think that the increasing threat and deployment of cyber-weapons will force (or should force) the law of war to develop a sophisticated and nuanced account of causation. Causation is largely irrelevant (or at the very least uncontroversial) to the basic structure of the law of war. If you drop a bomb on a village, the results are fairly obvious. The one area (or one of the few) where causation is controversial is dual-use infrastructure targets that have some relationship to both civilian and military operations. Under the law of war, a target is only a permissible military target if, among other things, its destruction will make an effective contribution to the military campaign.

According to Article 52(2) of Additional Protocol I:

attacks shall be limited strictly to military objectives. Insofar as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

The problem is that destroying almost any civilian target will create some military advantage, if only because it might demoralize the civilian population and spur them to pressure their civilian leaders to sue for peace. But that is clearly overbroad. The difference between permissible and impermissible attacks has to do, in part, with the nature of the causal connection between the attack and the military advantage that it confers. Something about the causal relationship between the terror-killing of non-combatants and the resulting military advantage is impermissible and dangerous. So that is one area where IHL needs a good account of causation. But I think this is a rare case.

I believe that cyber-attack scenarios will trigger immense pressure on IHL to develop an account of causation that is consistent with the unique ways that IHL is adjudicated. I place less emphasis on which account of causation is abstractly correct and instead support the more modest claim that cyber-attacks implicate the concept of causation in previously unseen ways. The result is the emergence of a primary research agenda for IHL at both levels: theory (scholarship) and codification (via state practice and potential treaty provisions). The Tallinn Manual was an excellent start to this process, but I also encourage scholars of causation in other fields to join the conversation.

One reason why this question is so difficult to answer is that traditional theories of causation cannot be reflexively and uncritically grafted into the law of war. Simply put, IHL demands a level of publicity and transparency that generates a significant asymmetry as compared to other fields of domestic law, where the fact-finding machinery of domestic courts is more suited to parsing complex causal phenomena. George Fletcher (in Rethinking Criminal Law) famously distinguished between the pattern of subjective criminality and the pattern of manifest criminality. While the former is appropriate for the criminal law’s extensive fact-finding system, IHL is burdened by the lack of fact-finding resources, and must necessarily rely on the pattern of manifest criminality. Of course, there are international tribunals to adjudicate violations of IHL that constitute war crimes, but let’s remember: (i) only the worst violations of IHL will be adjudicated at an international tribunal; and more importantly (ii) tribunal adjudications are always ex post, never contemporaneous decisions within the moment. The law of war needs a theory of causation that allows all participants to clearly and quickly evaluate the legality of the conduct without needing a courtroom and a fact-finder to make complex factual (and even normative) assessments that may take months to finalize.

Cyberwar presents an especially acute case of this general phenomenon within IHL; the causal processes of a cyber-attack and its downstream consequences are difficult to chart, thus suggesting that the law governing cyberwar should place a premium on transparent rules that, like the pattern of manifest criminality, can be applied by a reasonable third-party observer.

If these issues interest you, feel free to check out the rest of the book here.

Book Symposium: Cyber War – A Duty to Hack and the Boundaries of Analogical Reasoning

by Duncan Hollis

Back in 2012, I was pleased to receive an invitation to a conference that Jens, Kevin Govern, and Claire Finkelstein were hosting on the law and ethics of cyberwar.  It was a great conversation; so great, in fact, that Jens and his colleagues were inspired to use it as the launching pad for this volume — Cyberwar: Law and Ethics for Virtual Conflicts.  They asked me to write a chapter on an idea I’d had been thinking about since my first foray into the cyber arena back in 2007 — whether and when IHL (international humanitarian law, or the law of armed conflict for those of you trained in the United States) might involve a duty to hack?  The basic idea was straightforward — if a cyber-operation could achieve a military objective (say disabling a power grid or a war-supporting factory’s operations) without killing anyone or causing any lasting damage to the facility, shouldn’t IHL require States to employ it in lieu of kinetic operations that might cause civilian casualties or property damage?

Looking at the law today, the answer to this question is (largely) a negative one. Certainly, IHL contains a requirement for States to take precautionary measures (see Additional Protocol I, Art. 57) such as (i) choosing a means and method of warfare that minimizes ‘incidental loss of civilian life, injury to civilians, and damage to civilian objects’ and (ii) selecting military objectives ‘expected to cause the least danger to civilian lives and to civilian objects’ in cases where ‘a choice is possible between several military objectives for obtaining a similar military advantage.’  And these requirements could require a cyber-operation over a kinetic one in specific cases akin to the arguments for using available precision weaponry.  But, there’s nothing in IHL that has ever said States have to use a particular type of weapon first, as my duty to hack might suggest.

More importantly, some cyber-operations might not even fall within IHL’s current ambit.  Although there’s continuing debate, the majority view is that IHL’s principles of precaution, discrimination, and proportionality only apply in cases of an “attack.”  IHL does not prohibit targeting or even harming civilians or civilian objects in a cyber-operation so long as the effects are not analogous to those previously crossing the attack threshold (i.e., those with violent consequences involving injury, death, destruction or damage). The scope of IHL’s precautions are similarly qualified; where a cyber operation does not qualify as an attack (i.e., it doesn’t physically damage anything), it does not need to be among the range of options military planners are required to consider in deciding what and how to attack.  IHL thus appears to authorize attacks – kinetic or otherwise – that cause physical damage and loss or injury of human life so long as they compare favorably to potential losses from other types of ‘attacks’ even if the same objective could be achieved without any attack at all.  That result may be incongruous with the humanity values that motivate much of IHL, but it represents the law as it stands today.

My chapter, therefore, undertakes a normative argument for a Duty to Hack, recognizing that the idea is clearly lex ferenda.  I argue that IHL should require states to use cyber-operations in their military operations when they are expected to be the least harmful means available for achieving military objectives. This duty departs from the current law in two key respects.  First, it would remove the “attack” threshold for precautionary measures since the novel and wide-ranging capacities of cyber-operations unsettle the idea that only attacks can achieve military objectives.  A cyber-operation may be able to achieve a military objective (e.g., shutting down a factory for some desired period of time) without causing any physical harm.  Rather than leave such cyber-operations outside the requirements of precaution because they do not meet the definition of an ‘attack’, a Duty to Hack would require that they be part of any choice in means, methods and objectives.  A cyber-operation that can achieve a particular military objective without an attack should be required in lieu of any ‘attack’ on that same objective by other means or methods, whether cyber, kinetic, or non-kinetic in nature.  In other words, so long as the military objective is achievable (and nothing in my idea would require hacking if it can’t achieve lawful military objectives), the Duty to Hack requires employing cyber-operations generating no physical harm over those means and methods of warfare that, by definition, must generate some physical harm (similarly, it would prioritize cases involving some harm in comparison to means and methods that would generate more harm).

Second, the Duty to Hack would addresses all forms of physical harm from cyber-operations, not just those of a civilian character. Existing IHL – distinction, proportionality, and precautions – only require efforts to avoid, limit, or minimize civilian harm. Absent the harmful civilian impacts protected by these and other IHL rules, militaries are free to employ destructive and lethal force against military objects and belligerents.  This approach furthers military necessity – complete submission of the enemy as soon as possible – and made sense where military objectives were usually military in character and dual-use objects qualified as military objects only on occasion. But, as is well known, information communication technologies are regularly dual-use (that is, they are used by both civilian and military actors).  I question whether this default treatment of dual-use objects as military objects should continue where all these cyber-related dual-use objects may be attacked (and damaged or destroyed) without regard to any questions of distinction, proportionality or precautions vis-à-vis the objects themselves.  Of course, one solution would be to require more careful segregation of military objects in cases where they are situated within or among civilian objects. My Duty to Hack, however, takes a different, and simpler, approach.  It would require using cyber-operations that cause the least harm to achieve a military objective in military operations. For example, assuming disruption of Iran’s nuclear processing plant was a lawful military objective, the prospect of deploying Stuxnet to achieve that objective would take priority over doing so by an airstrike if that airstrike – even a precise one – would foreseeably involve greater risks of injury, death, damage or destruction than spinning centrifuges out of control periodically.

Ultimately, my Duty to Hack idea is designed to preserve the principles of distinction and proportionality; IHL would continue to prohibit direct attacks on civilians and their objects by cyber-operations or otherwise, just as any military operation that does constitute an attack must not generate excessive civilian harm.  Nor would my Duty to Hack override the requirement to comply with the principles of discrimination and avoidance of unnecessary suffering when it comes to developing or deploying cyber-operations.

My chapter offers a longer examination of the Duty to Hack concept than space permits here (including a discussion of how it differs from the “duty to capture” concept that has caused much controversy in IHL circles).  I explore the trade offs involved in adopting it (including the potential for it to incentivize greater military cyber surveillance to solidify the reliability of various cyber capabilities).  In doing this analysis, however, I was struck by the larger challenges of using analogies to carve out the existing lines of IHL in cyberspace (not to mention the contours of any new lines that I propose). As a result, I ended up framing my chapter around a larger, introductory analysis of the role of boundaries in legal discourse over cyberspace.

Readers may be familiar with debates over whether cyberspace is subject to physical, territorial boundaries, most notable in on-going debates about which governance models best serve cyberspace (the traditional sovereign territorial model, a multistakeholder model where cyberspace is a res communis, or some sort of hybrid approach).  But, I notice similar sorts of conceptual boundary disputes in questions over what rules of international law apply in cyberspace, with much of the existing analyses resting on analogies to pre-existing regulatory regimes.  I find this “law-by-analogy” approach problematic, particularly when it comes to IHL and rules on the use of force. My chapter explains the problems such line-drawing poses in terms of their (i) accuracy, (ii) effectiveness and (iii) completeness.  Law-by-analogy works well where analogies hold (i.e., defining a use of force in cyberspace where the effects of a cyber operation analogize to the effects of prior activities treated as uses of force in the past; or, defining a non-use of force where the effects analogize to activities not treated as uses of force in the past).  But analogies break down where the technology includes previously-unseen capacities, which have no prior analogues.  In such cases, default presumptions may simply regard the behavoir as automatically prohibited or permitted in ways that create tensions with the law’s underlying nature and purpose.  For example, I find it problematic that cyber-operations do not qualify as attacks simply because they do not involve violent consequence even if they can achieve the very same military objective as an attack.  My Duty to Hack idea serves as a response to such difficulties by thinking more carefully about the rules for cyber operations and the values they serve when there are no analogues to earlier operations defined as attacks.

In the end, I had two overarching goals for this chapter.  First, I wanted to highlight the role of boundaries in governing cyberspace, and problematize the reasoning it generates as a result, particularly when done under the heading of law-by-analogy.  Second, I offer a critique of how existing boundaries operate with respect to contrasting cyber operations with other forms of attack, leading me to call for IHL to include a Duty to Hack.  Although such a duty would not come without costs, I believe it would more accurately and effectively account for IHL’s fundamental principles and cyberspace’s unique attributes than existing efforts to foist legal boundaries upon State cyber-operations by analogy. It could, moreover, offer a necessary first step to resolving the larger theoretical and functional challenges currently associated with law’s boundaries in cyberspace.

Interested in more?  You could always buy the book.

Poor ICC Outreach — Uganda Edition

by Kevin Jon Heller

The ICC has always had a legitimacy problem in Uganda. In particular, as Mark Kersten ably explained earlier this year, the Court is widely viewed by Ugandans as partial to Museveni, despite the fact that the OTP is supposedly investigating both the government and the LRA:

From the outset, the ICC showcased a bias towards the Government of Yoweri Museveni. In 2004 and following months of negotiations, then ICC Chief Prosecutor Luis Moreno-Ocampo infamously held a joint press conference with Museveni to announce that Kampala had referred the LRA to the ICC. This was no accident. Moreno-Ocampo was made aware by his staff of the appearance of partiality that this would create. Moreover, while the referral was later amended to cover the “situation in northern Uganda”, severe damage to the independence of the Court had been done. To many in northern Uganda as well as the Court’s supporters, the Prosecutor had shown his true colours: he would only prosecute the LRA and only the LRA. In 2005, five arrest warrants were issued, all for senior LRA commanders, including leader Joseph Kony. To this day, the ICC has never emerged from under this cloud of apparent bias towards the Museveni Government. Recent events won’t foster much hope that it ever will.

Given this history, you would think the Court would go out of its way to make sure people understand that it is not investigating only the LRA. You would be wrong. As I was perusing the ICC website yesterday, I found myself on the page dedicated to the Uganda situation. Other than providing information about ongoing cases, the page simply links to two press releases — one reporting the 29 January 2004 self-referral, and one reporting the OTP’s 29 July 2004 decision to open a formal investigation. Here is the self-referral press release:

President of Uganda refers situation concerning the Lord’s Resistance Army (LRA) to the ICC

ICC-20040129-44

Situation: Uganda

In December 2003 the President Yoweri Museveni took the decision to refer the situation concerning the Lord’s Resistance Army to the Prosecutor of the International Criminal Court. The Prosecutor has determined that there is a sufficient basis to start planning for the first investigation of the International Criminal Court. Determination to initiate the investigation will take place in the coming months.

President Museveni met with the Prosecutor in London to establish the basis for future co-operation between Uganda and the International Criminal Court. A key issue will be locating and arresting the LRA leadership. This will require the active co-operation of states and international institutions in supporting the efforts of the Ugandan authorities.

Many of the members of the LRA are themselves victims, having been abducted and brutalised by the LRA leadership. The reintegration of these individuals into Ugandan society is key to the future stability of Northern Uganda. This will require the concerted support of the international community – Uganda and the Court cannot do this alone.

In a bid to encourage members of the LRA to return to normal life, the Ugandan authorities have enacted an amnesty law. President Museveni has indicated to the Prosecutor his intention to amend this amnesty so as to exclude the leadership of the LRA, ensuring that those bearing the greatest responsibility for the crimes against humanity committed in Northern Uganda are brought to justice.

According to the Rome Statute, the Prosecutor has to inform all States Parties to the Statute of the formal initiation of an investigation. Following this the Prosecutor may seek an arrest warrant from the Pre-trial Chamber. To take this step, the Prosecutor must determine that there is a reasonable basis to proceed with an investigation. The Prosecutor will work with Ugandan authorities, other states and international organisations in gathering the necessary information to make this determination.

President Museveni and the Prosecutor of the International Criminal Court will hold a press conference on Thursday 29 January 2004 at 18:00 at the Hotel Intercontinental Hyde Park, London.

And here is the investigation press release:

Prosecutor of the International Criminal Court opens an investigation into Nothern Uganda

ICC-OTP-20040729-65

Situation: Uganda

The Chief Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, has determined that there is a reasonable basis to open an investigation into the situation concerning Northern Uganda, following the referral of the situation by Uganda in December 2003. The decision to open an investigation was taken after thorough analysis of available information in order to ensure that requirements of the Rome Statute are satisfied.

The Prosecutor has notified the States Parties to the ICC and other concerned states of his intention to start an investigation, in accordance with article 18 of the Rome Statute.

Notice the subtle change of language: whereas the first press release refers to “the situation concerning the Lord’s Resistance Army,” the second press release refers to “the situation concerning Northern Uganda.” That change reflects the OTP’s rejection of the one-sided nature of Uganda’s first self-referral, as Mark discusses above. But it’s a subtle change — and the Court does not explain it on the Uganda page or anywhere else on the website. If you’re an ICC expert, you will probably pick up on the difference yourself. But if you’re a layperson, you will come away from reading about the Uganda situation believing precisely what Mark accurately describes as being so devastating to the Court’s legitimacy: namely, that the ICC is investigating the LRA — and only the LRA.

Mark and I have each complained (see here and here) about the ICC’s inability to maintain an accessible and useful website. But at least those complains were just about how difficult it is to get documents in a timely fashion. The issue with regard to Uganda goes much deeper than that — the webpage affirmatively (if unintentionally) misleads the reader about the Court’s work in a manner that can only harm the Court.

For a struggling institution, that’s simply unacceptable.

Book Symposium: Cyber War–Introduction

by Kevin Govern

[Kevin Govern is Associate Professor of Law at Ave Maria School of Law.]

The science fiction author William Gibson coined the term cyberspace in his short story, Burning Chrome (1982), before most of the public had a concept of, let alone experience with, using networked computer systems. Science fiction has given way to cyber reality, with 42.3% of the world’s population using the Internet on a regular basis, some 741% growth between 2000-2014 alone. At the same time, cyber weapons and cyber warfare are among the most dangerous innovations in recent years. Cyber weapons can imperil economic, political, and military systems by a single act, or by multifaceted orders of effect, with wide ranging potential consequences. A non-exclusive list of some notable past cyber incidents includes but is not limited to:

The US director of national intelligence, James Clapper, recently told the House intelligence committee the next phase of escalating online data theft most likely will involve manipulation of digital information, with a lower likelihood of a “cyber Armageddon” of digitally triggered damage to catastrophically damage physical infrastructure.

Contemporaneous with this writing, a Chinese delegation met with representatives from the FBI, the intelligence community and the state, treasury and justice departments for a “frank and open exchange about cyber issues” amounting to “urgent negotiations…on a cybersecurity deal and may announce an agreement when President Chinese President Xi Jinping arrives in Washington on a state visit on Thursday [24 September].”

In this era of great cyber peril and opportunity, my colleagues and co-editors Jens Ohlin from Cornell Law School and Claire Finkelstein from the University of Pennsylvania Law School and I had the privilege of contributing to and editing a book that assembles the timely and insightful writings of renowned technical experts, industrial leaders, philosophers, legal scholars, and military officers as presented at a Center for Ethics and the Rule of Law roundtable conference entitled Cyberwar and the Rule of Law.

The collected work, Cyber War – Law and Ethics for Virtual Conflicts, explores cyber warfare’s moral and legal issues in three categories. First, it addresses foundational questions regarding cyber attacks. What are they and what does it mean to talk about a cyber war? State sponsored cyber warriors as well as hackers employ ever more sophisticated and persistent means to penetrate government computer systems; in response, governments and industry develop more elaborate and innovative defensive systems. The book presents alternative views concerning whether the laws of war should apply, whether transnational criminal law or some other peacetime framework is more appropriate, or if there is a tipping point that enables the laws of war to be used. Secondly, this work examines the key principles of the law of war, or jus in bello, to determine how they might be applied to cyber-conflicts, in particular those of proportionality and necessity. It also investigates the distinction between civilian and combatant in this context, and studies the level of causation necessary to elicit a response, looking at the notion of a “proximate cause.” Finally, it analyzes the specific operational realities implicated by cyber warfare technology employed and deployed under existing and potential future regulatory regimes.

Here is the full Table of Contents: Continue Reading…

How Broad is the UN’s Immunity? More on The Haiti Cholera Case

by Kristen Boon

If you haven’t seen it yet, the US recently filed its amicus brief in the Haiti Cholera appeal – it is available here: Haiti US amicus 2nd Circ. Predictably, the brief makes the case for absolute external UN immunity, and advances largely the same arguments put forward in prior filings.

And yet, there are a number of powerful counterarguments to the position put forward by the US government.

  • At the time the Convention on Privileges and Immunities of the UN (CPIUN) was drafted, the whole field of privileges and immunities of IOs was largely “uncharted territory,” and founding States projected what immunities they thought the UN would need with little information from practice;
  • The legislative history of the CPIUN confirms that the biggest fear of UN founding states was the threat of a member state trying to control the UN, not classes of private plaintiffs bringing torts cases against the Organization;
  • Article 105 of the UN Charter limits the Organization’s immunities before national courts to what are functionally necessary, and under Article 103, the Charter trumps conflicting treaties, arguably including the broader language of the CPIUN.
  • Although settling claims might place a considerable financial burden on the Organization, the UN could purchase liability insurance to cover itself against large claims;
  • The concern that Troop Contributing Countries will be deterred from cooperating with the UN if it has anything less than absolute immunity has no empirical support. In fact, what appears to be of far more concern to TCCs is the expansion of “robust” peacekeeping missions in which peacekeepers have an offensive mandate.

As a result, although the UN’s external immunities are clearly very broad, there is a very strong argument they are not absolute.  These arguments are advanced in my forthcoming article on the Haiti Cholera case (see bottom of post for more information).

In another important development, earlier this year the UN attempted to redefine the scope of its internal immunities, under Art. 29 of the CPIUN.

In a February 19, 2015 letter to Members of Congress, the Secretary General wrote:

“In the practice of the Organization, disputes of a private law character have been understood to be disputes of the type that arise between private parties, such as, claims arising under contracts, claims relating to the use of private property in peacekeeping contexts or claims arising from motor vehicle accidents. . . . The claims in question were not receivable pursuant to Section 29 of the General Convention [as they] raised broad issues of policy that arose out of the functions of the United Nations as an international organization, they could not form the basis of a claim of a private law character [….] For the same reason, it was determined that these claims were not of the type for which a claims commission is provided under the SOFA, since the relevant provision of the SOFA also relates to claims of a private law character.”

A November 2014 letter from the UN’s Senior Cholera Coordinator to several Human Rights Special Rapporteurs reinforces the UN’s restrictive new interpretation of private law claims:

In the Practice of the Organization, disputes of a private law character have been understood to be disputes of the type that arise between two private parties. Section 29(a) has most frequently been applied to claims arising under contracts between the United Nations and a private party, to those relating to the use of property in the context of a mission away from Headquarters, and to claims arising from vehicle accidents.

What is striking about these letters is that torts—other than those arising from motor vehicle accidents—have been eliminated from the scope of the UN’s duty to compensate for private injury.  In prior documents, the UN had included identified two much broader types of private law claims: commercial agreements that the UN has entered into, and claims by third parties for personal injury, death or property loss or damage, specifically as caused by actions of UN peacekeepers.           This recent categorical elimination of torts other than those arising from motor vehicle accidents is significant: injuries are predictable aspects of any peacekeeping operation, and they should not be designated as public simply because they affect the UN’s potential liability.

In parallel, the Secretary General suggested an enlarged category of public law claims for which the UN would be internally immune. The 2014 letter to the Human Rights Special Rapporteurs on the Haiti case states:

“Claims under Section 29(a) are distinct from public law claims, which are understood as claims that would arise between an individual and a public authority such as a State.” The letter goes to suggest that “on the international level, these claims may be addressed in various ways, such as through political, diplomatic or other means, including a body established for that specific purpose.”

For the full text click here:  Haiti Nov14 explanation to SRs

This wording is deeply troubling in that it largely eliminates the UN’s duty towards third-parties, despite the recognition in General Assembly resolution 52/547 that such duties exist.  In my article, I take issue with the UN’s attempt to redefine the scope of its internal immunities, and argue that member states should join the conversation about what immunities mean to the UN today.

For an early copy of “The United Nations as Good Samaritan: Immunity and Responsibility” forthcoming in the Chicago Journal of International Law (2015) please contact me at kristen [dot] boon [at] shu [dot] edu.

Here Comes the ICJ’s Chile-Bolivia Ruling

by Julian Ku

Latin  America is a trendy place for ICJ litigation these days with Colombia, Nicaragua, Costa Rica, Chile and Bolivia all currently embroiled in ICJ cases.  Indeed, it seems like Nicaragua alone is generating almost half of the ICJ’s current docket.  On Thursday (September 24), the ICJ will (finally) issue its ruling on Chile’s preliminary objections to its jurisdiction over Bolivia’s demand that Chile open negotiations to grant Bolivia sovereign access to the sea.

I have been harshly critical of Bolivia’s case calling it a slam dunk case for Chile on admissibility. To summarize briefly, Chile and Bolivia agreed in a 1904 treaty on a territorial settlement. Bolivia alleges that Chile has subsequently undertaken a legal obligation to “negotiate sovereign access to the sea” for Bolivia.  I found Bolivia’s evidence that Chile has undertaken such an obligation to negotiate extremely thin.

Having scanned the memorials, I am not very much more impressed by Bolivia’s arguments. On the other hand, I see that Chile has retained a pretty high-powered set of international lawyers including U.S-based law professors Claudio Grossman, Dean at American University, Harold Koh, former Dean at Yale Law and U.S. Legal Adviser, and Nienke Grossman, Professor, University of Baltimore.  And this list does not even mention well-known Europeans such as Sir Daniel Bethlehem, Q.C., Barrister, Bar of England and Wales, 20 Essex Street Chambers and Pierre-Marie Dupuy, Professor at the Graduate Institute of International Studies and Development, Geneva. And I haven’t even mentioned the dozen other high-powered folks on Chile’s legal team.   I totally agree with their arguments (even Harold Koh and I agree!).

Though I think Chile has very good arguments, the fact that Chile has retained (and presumably paid) so many top international lawyers suggests Chile is worried the Court will allow Bolivia’s claim to proceed.  So even though I think Bolivia’s claim is very weak, it is probably true that courts, international or domestic, hate giving up cases on jurisdiction if there is the thinnest basis for taking the case.  Given the ICJ is not all that busy these days, this could be tempting for the court, and that could be trouble for Chile.

Does President Obama Have to Send the “Cyber Arms Control” Agreement with China to the Senate?

by Julian Ku

U.S. and Chinese negotiators are apparently very close to working out an agreement to limit the use of cyberweapons against each other.  There is talk that this agreement will be concluded before Chinese President Xi Jinping’s state visit to the U.S. next week.  The agreement will be pretty narrow in scope and apparently would not address the acts of cyber-theft and espionage that China allegedly carried out earlier this year. According to the NYT:

The United States and China are negotiating what could become the first arms control accord for cyberspace, embracing a commitment by each country that it will not be the first to use cyberweapons to cripple the other’s critical infrastructure during peacetime, according to officials involved in the talks.

I am skeptical that this kind of agreement could be effective for the reasons that Jack Goldsmith and Paul Rosenzweig have laid out (see also Goldsmith at greater length here).  But putting aside its effectiveness, it is worth asking whether a “cyber arms control agreement” would be the type of an agreement that required approval by two-thirds of the Senate as a treaty.

Much depends on exactly what the agreement purports to do.  If the agreement actually contains a commitment by the U.S. to “not be the first to use cyberweapons to cripple the other’s critical infrastructure”, than it is much closer to the traditional kinds of arms control agreements that have usually been approved under the U.S. system as treaties.  Unlike the Iran Nuclear Deal (which is mostly about lifting economic sanctions), the U.S. would be committing to refraining from using certain weapons or from exercising its military forces.

On the other hand, U.S administration sources caution that this agreement would not lay out specific obligations, but it “would be a more ‘generic embrace’ of a code of conduct adopted recently by a working group at the United Nations.” But even an agreement incorporating that code of conduct might be considered an “arms control” agreement since it requires that a state “should not conduct or knowingly support ICT activity contrary to its obligations under international law that intentionally damages critical infrastructure or otherwise impairs the use and operation of critical infrastructure to provide services to the public;” The rest of the code of conduct also imposes fairly robust obligations on a state.

I will have to think about this some more, but on first cut, it is possible that this cyber control agreement will have to be sent to the Senate as a treaty.  I think Senate approval of such a treaty would be a non-starter given the current political climate, so perhaps the Obama Administration will announce that this will be a sole executive agreement after all.  Whether that is permitted under the Constitution remains unclear though.

 

Weekly News Wrap: Monday, September 21, 2015

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • Australia on Monday swore in its first female defense minister, Senator Marise Payne, who will oversee open-ended military engagements in two countries and some of the country’s most important defense contracts in a generation.

UN/World

Events and Announcements: September 20, 2015

by Jessica Dorsey

Announcements

  • The Academy on Human Rights and Humanitarian Law is happy to announce the 2016 Human Rights Essay Award topic: Extractive Industries and Human Rights. Participants have the flexibility to choose any subject related to the substantive law relevant to the field. International human rights law can be understood to include international humanitarian law and international criminal law. This annual competition seeks to stimulate the production of scholarly work in international human rights law. Participants must have obtained their law degree by the February 1st deadline to be eligible. The Academy will grant two Awards, one for the best article in English and one for the best article in Spanish. The lucky winners of this year’s Award will win a full scholarship to attend the Academy’s 2016 Program of Advanced Studies on Human Rights, the first summer Program at American University Washington College of Law’s new Tenley Campus! The Award also covers travel expenses to Washington D.C., housing at the university dorms, a per diem for living expenses and the chance to be published in the American University International Law Review. For detailed guidelines about the award, including a link to our rules and regulations please visit the website here or contact us at: hracademy [at] wcl [dot] american [dot] edu.

Calls for Papers/Abstracts:

  • The Junior International Law Scholars Association (JILSA) is holding its annual meeting on Friday, January 22, 2016, at the University of Pennsylvania School of Law. JILSA is an informal network of junior scholars at mostly American law schools who get together annually for a self-funded workshop.  Junior faculty and fellows interested in presenting at the meeting should email proposals to MJ Durkee and Jen Daskal by Monday, October 26.  If you are interested in presenting a working draft at the meeting, please send us the title, an abstract, and an indication of how far along the paper is at the time of submission.  Because of the nature of the workshop, we can only include working drafts that have not yet been accepted for publication.  If you are interested in presenting on an early stage project, please let us know the working title and a few lines about the idea you are pursuing.  Finally, let us know if you are interested in being a discussant.  We will do our best to get back to everyone in November, and participants are expected to distribute their working drafts by no later than Friday, January 8.

Events

  • On Thursday, September 24, at 12pm DC time, as part of its “Getting Started” series, ASIL’s New Professionals Interest Group is pleased to host a special event on how to pursue a career in international environmental law, together with ASIL’s International Environmental Law Interest Group. Panelists at this event will share their perspectives on professional development and career trajectories based on their diverse backgrounds. This special event will be online only involving panelists from organizations such as EarthJustice, government agencies including the U.S. State Department, academia, and private practice. Participants will be invited to participate from their own computers. For more information, please see the website here.

  • On Tuesday, October 13, 2015, the Bingham Centre of the British Institute of International and Comparative Law presents: Global Rule of Law Exchange Evening Discussion: “International Economic Agreements and the Rule of Law –The case of the Transatlantic Trade and Investment Partnership (TTIP).” The United States and the European Union are currently engaged in negotiations on the Transatlantic Trade and Investment Partnership (TTIP). TTIP primarily aims to align regulation and remove non-tariff barriers between the two blocs. It also includes a chapter on the treatment of foreign investment and establishes a dedicated regime of ad hoc arbitration for the settlement of investor-State disputes. If concluded, TTIP will become a landmark agreement between two of the world’s biggest and richest economic powers. For more information, please click here. To register online, please go 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.

Announcement: 11th Annual ESIL Conference 10-12 September

by Jessica Dorsey

The 11th Annual Conference of the European Society of International Law will take place in Oslo, Norway, from 10 to 12 September 2015. It is hosted by the PluriCourts,  Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, University of Oslo. The topic this year is the judicialization of international law. It is still possible to register for the conference by visiting this website.

Selected sessions of the conference will be streamed, and you can see the live webcast 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.

Guest Post: A Presumption Against Authorization in the Iran Nuclear Agreement Review Act

by David H. Moore

[David H. Moore is a Professor at the J. Reuben Clark Law School, Brigham Young University.]

Professors Ackerman and Golove, on one hand, and Professor Ku, on the other, disagree over whether the Iran Nuclear Agreement Review Act provides statutory authorization for the recent Iran Deal. The resolution of this question bears on whether a future President may unilaterally withdraw from the Deal. Both sides begin and end their analysis in the text, purpose, and history of the Act. At the outset, however, the authorization inquiry should face a presumption against authorization.

Analysis of presidential power questions is stacked in the President’s favor. As the Supreme Court has repeatedly explained, the President acts lawfully when supported by constitutional or congressional delegations of power. Defining the President’s constitutional powers presents difficult and far-reaching questions such as the meaning of the Vesting Clause and the distribution of war powers. Accordingly, the Court has an incentive to decide presidential power cases by reference to Congress.

Applying Justice Jackson’s framework, the Court upholds presidential action, with very rare exception, if the President acts with congressional approval. If Congress has remained silent, the President, and perhaps more importantly, the Court sits in a twilight zone in which Jackson’s analysis provides little to no guidance as to the legality of the President’s conduct. If Congress disapproves the President’s action, the President’s power is at its lowest ebb. The President will lose unless, as in Zivotofsky, the President possesses an exclusive power to perform the challenged actr. But to find exclusive power, the Court must engage those difficult constitutional questions. Thus, the easiest way to resolve a case is to find congressional approval. As Dames & Moore illustrates, the Court will sometimes scratch hard for evidence of authorization. The President exploits this dynamic by avoiding Congress and cobbling together evidence of congressional approval. Reliance on the 2001 Authorization for the Use of Military Force to combat ISIS is, in my mind, a good example.

Further, even if a statutory authorization is clear, it is suspect. As I have discussed here, Congress has a variety of reasons to delegate power to the President against institutional interest. Reelection concerns, for example, might motivate Congress to affirmatively delegate foreign affairs decisions to the President to leave time to focus on domestic matters that are more salient to constituents.

The aggregation of these dynamics means that assessing the legality of presidential action by reference to Congress tends toward the expansion of presidential power. One way to check this expansion is to begin the search for congressional approval with a presumption against authorization. Applying such a presumption to the Iran Nuclear Agreement Review Act would render Professor Ackerman and Golove’s interpretation, and similar arguments for congressional approval, even more suspect than Professor Ku asserts.

The Power of the Security Council

by Jens David Ohlin

I want to thank Alexandre Skander Galand for his interesting post last week on the continuing controversy over President al-Bashir’s non-arrest during his recent visit to South Africa. The post reignited a long-standing debate in the comments section. My own views are too long for posting in the comments section.

I write now to expand a bit on my previous arguments regarding the role of the Security Council in imposing a binding obligation on Sudan (and other states) to cooperate with the ICC and execute its arrest warrant. If the obligation to Sudan vitiated its putative immunity, then South Africa had no basis to refuse to comply with the ICC arrest warrant, especially since it is a party to the Rome Statute.

First, before I get to that issue, I want to briefly mention the other argument for imposing a duty on Sudan to cooperate, which is a jus cogens obligation stemming from the investigate/prosecute-or-extradite norm that applies in genocide cases. Goran Sluiter wrote an important article on this subject, which was published in the Journal of International Criminal Justice in 2010. This is a different argument (albeit a good one), and it is best to keep them separate.

Now back to the issue of the Security Council. Some commentators (including Asad Kiyani here) doubt that the Security Council has the authority under Chapter VII to impose a binding obligation on Sudan to cooperate to such an extent that it requires waiving their rights under head of state or diplomatic immunity. I understand the claim. But I think it is clear that the Security Council has this authority and that implicitly other scholars should be committed to this conclusion as well, since this power is far less grave than the other powers that the Security Council clearly has. Indeed, the power to abrogate Sudan’s head of state immunity is downright trivial compared to the Security Council’s other powers.

One should recall that the Security Council has the authority, under the UN Charter, to authorize military action against the sovereignty of a state. This authority is taken pursuant to the Security Council’s power under Chapter VII to determine the existence of a threat to, or breach of, international peace and security, and to make binding resolutions that include, among other possible remedies, the authorization of military measures taken against an offending state in order to repair the breach to international peace and security.

This is an awesome power. It effectively allows the Security Council to bless a military incursion that might otherwise violate the UN Charter prohibition on the use of military force to solve international disputes–a prohibition codified in Article 2(4) of the Charter (and also arguably a jus cogens norm). However, if the military action is supported by a binding resolution of the Security Council, the military action is not illegal–it is a lawful enforcement action undertaken under the auspices of Chapter VII of the UN Charter.

This power of the Security Council is explicitly outlined in the UN Charter. It is rarely invoked, in part because military remedies are extremely serious, but also because the veto power among the permanent members limits the number of binding resolutions that the council will pass. However, few scholars (if any), deny that the Security Council has the power to: “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”

So I find it strange that some scholars have trouble with the idea that the Security Council has the authority to abrogate the sovereign or diplomatic immunity of state officials in cases such as the Darfur situation. Indeed, the Security Council had the authority–which it declined to exercise–to declare the Darfur crisis a threat to international peace and security (in part because it caused regional instability and included massive violations of IHL and human rights, possibly including crimes against humanity and perhaps even genocide) and authorize a collective military intervention to breach Sudan’s sovereignty, occupy the entire country, and remove Bashir from power. But for some reason, the Council does not have the power to do the smallest thing imaginable: refer the case to the ICC and implicitly remove any immunity arrangements that conflict with that referral? I find that hard to believe. In this case, the greater includes the lesser.

Of course, there is a separate issue regarding whether the Security Council actually abrogated that immunity when it directed states to comply with the ICC in the Darfur investigation. That is a separate point. I think they did so, and there is no other way of interpreting the relevant resolutions. But that’s not the point I am defending here. I am simply asserting that if they displaced Sudan’s diplomatic and sovereign immunity, they certainly had the authority under international law to do so.

Why Professors Ackerman and Golove Are Still Wrong About the Iran Deal

by Julian Ku

I thank Professors Ackerman and Golove for taking the time to respond to my earlier post on whether a future President could unilaterally withdraw from the Iran Nuclear Deal.  But I remain unconvinced by the claims they made in their original Atlantic essay that a future President’s unilateral withdrawal from the Iran Deal would be “lawless”. Here’s why I still think they are wrong:

1)  Ackerman and Golove argue that the Iran Nuclear Agreement Review Act “authorizes” President Obama to enter into binding congressional-executive agreement with Iran.  In their sur-reply, Professors Ackerman and Golove cite two pieces of statutory text from the Iran Nuclear Agreement Act which they say is congressional authorization for the President to conclude the Iran Deal (the JCPOA).  They point out that the act “specifically defines ‘agreement’ to include any accord with Iran ‘regardless of whether it is legally binding or not.’ § 2610e(h)(1).” They then point out that the Act “authorizes the President to implement sanctions relief unless Congress enacts ‘a joint resolution stating in substance that the Congress does not favor the agreement.’ 42 U.S.C. § 2610e(c)(2)(B).”

For the purpose of this argument, it doesn’t really matter whether the agreement is legally binding or not.  The real problem is that Professors Ackerman and Golove do not (and cannot) cite statutory text “authorizing” the President to enter into an agreement with Iran.  They can’t cite this text because that language does not exist in the Act.  The Act defines an “agreement” broadly because Congress wants the President transmit everything, including supporting materials and annexes, to Congress.  The Act suspends the President’s pre-existing power to suspend or terminate sanctions on Iran while Congress “reviews” the agreement.  Congress may vote a resolution of disapproval, which would prevent the President from lifting or waiving sanctions, but it doesn’t say he can’t enter into the Agreement.  But Congress may also simply do nothing (which is what it has done), which would also allow the President to lift the sanctions after 90 days.  Nothing in the Act says the President can’t enter into the Agreement. It just says, once he does so, he has to disclose that agreement to Congress and hold off on implementation.*

Professors Ackerman and Golove somehow read this framework as an authorization of the President’s power to conclude an agreement, but a more plausible reading of the Act as a whole sees it as a suspension of the President’s pre-existing power to implement an agreement.  If you think (as I do) that the President has broad powers to conclude international agreements (especially nonbinding ones) without Congress, then this law makes a lot of sense since it requires the President to suspend implementation of the agreement for 60 or 90 days and disclose all information about the agreement.

Under the Ackerman/Golove reading of this language, Congress has authorized the President to enter into whatever agreement with Iran he wants, and the only condition it places on it is that Congress gets 90 days to review it before it automatically goes into effect. Why would  Congress bother to give the President the power to enter into an agreement without reserving for itself the power to approve it?

It is worth noting that Congress knows how to specifically authorize an executive agreement, and require its approval before going into effect.  In Section 103(b) of the Trade Promotion Authority Act (enacted about the same time as the Review Act), Congress states that:

“[w]henever the President determines that one or more existing duties or other import restrictions of any foreign country or the United States are unduly burdening and restricting the foreign trade of the United States and that the purposes, policies, priorities, and objectives of this title will be promoted thereby, the President

(A) may enter into trade agreements with foreign countries before— (i) July 1, 2018…

[Emphasis added].

Moreover, the trade agreements require approval by a separate Act of Congress.  As the TPA bill makes clear in Section 106, no agreement “entered into under section 103(b) shall enter into force with respect to the United States if (and only if)—” among other requirements — “(F) the implementing bill is enacted into law.” [Emphasis added).  Again, Congress is making clear that it ( and not the President) is the one who has authorized the agreement and that the agreement cannot have any force until Congress acts to approve and implement it.

It bears repeating: there is no language even remotely like this in Iran Nuclear Agreement Review Act. There is no language saying the President can enter into an agreement, nor is there language explaining when that agreement has “entered into force.”  Congress knows how to authorize an international agreement, and the most natural reading of the Iran Nuclear Agreement Review Act is that it didn’t do so there.

2) Professors Ackerman and Golove also argue that a future President cannot legally (under U.S. law) terminate this agreement without either approval from Congress or without undermining U.S. credibility in trade agreements like NAFTA or the WTO.

I find this argument lacking for at least two reasons.

First, as I stated above, the Iran Nuclear Agreement Review Act doesn’t follow the pattern of trade promotion authority laws  in any way so it is highly unlikely that any trading partners will worry about a President Rubio pulling out of the WTO because he pulled out of the JCPOA. (Simon Lester makes that point here)

Moreover, the Review Act does not in any way prohibit a future President from withdrawing from the JCPOA, nor does it prohibit the President from reimposing sanctions on Iran. He is perfectly free to put them back on without violating the Review Act or any other U.S. statutory law.

The contrast with trade agreements is again instructive because Congress knows how to reserve to itself the power to terminate an agreement.  Under Section 125 of the Uruguay Agreements Implementation Act, Congress can vote every five years on whether to pull out of the WTO. This suggests that Congress has reserved for itself some power to terminate the WTO agreement. And because the laws implementing the WTO agreement change all sorts of other U.S. laws, it makes sense for Congress to supervise how and when the U.S. gets out. (It bear repeating: terminating the JCPOA does NOT violate or change any U.S. domestic law).

Second, as I noted in my original post, even if the Iran Deal was a treaty approved by the Senate, there is good reason to think the President could withdraw from the Iran deal-treaty without going back to the Senate for approval.  President Bush withdrew from the Anti-Ballistic Missile treaty without going to the Senate, President Carter withdrew from the U.S.-Taiwan defense treaty without going to the Senate, etc.  For this reason, a future President could withdraw from the JCPOA (even if the JCPOA is legally binding) without going back to Congress, especially where the Review Act does not reserve to Congress any termination rights.  Thus, even if Professors Ackerman and Golove are right that the Review Act authorizes the President to enter into an agreement, it doesn’t REQUIRE him to do so or REQUIRE him to stay in the JCPOA. (And he can withdraw via the JCPOA’s provisions if he chooses).

In conclusion, I am back where I started.  Professors Ackerman and Golove use the thinnest of statutory language to claim that Congress “authorized” the President to make an agreement, and further, that Congress has also prohibited the President from withdrawing from it.  That’s a lot of work for a mere definition of the word “agreement” to carry. It’s far too much, especially when one considers the way Congress goes about its business in the trade agreement context.  The next President can unilaterally withdraw from the JCPOA. And, with all due respect to Professors Ackerman and Golove, such a withdrawal will be the opposite of “lawless.”

 

*As a side note, the fact that the definition of an agreement includes non-binding political commitments suggests that Congress is really after review and disclosure, not authorization and approval.  Could Congress authorize the President to enter into a non-binding political commitment? And then require him and future presidents to stick to such a commitment?

Guest Post: The Lawless Presidency of Marco Rubio–A Reply to Professor Ku

by Bruce Ackerman and David Golove

[Bruce Ackerman, Sterling Professor of Law and Political Science at Yale, is the author of The Decline and Fall of the American Republic and David Golove, Hiller Family Foundation Professor of Law, New York University School of Law, is the co-author of Is NAFTA Constitutional?]

Responding to our essay in the Atlantic, Professor Julian Ku believes that we are “deeply and badly mistaken” in criticizing Senator Rubio’s claim that the next President has constitutional authority to repudiate the Iran Nuclear Agreement on his first day in office.

We are not convinced.

According to Professor Ku, nothing in the “Iran Nuclear Agreement Review Act explicitly (or implicitly) authorize[s] the President to make an agreement with Iran that would go beyond the President’s existing constitutional powers to make sole-executive agreements or nonbinding political commitments.”

This claim boldly ignores the Iran Act’s key operative provisions. The Act specifically defines “agreement” to include any accord with Iran “regardless of whether it is legally binding or not.” § 2610e(h)(1).  It then authorizes the President to implement sanctions relief unless Congress enacts “a joint resolution stating in substance that the Congress does not favor the agreement.” 42 U.S.C. § 2610e(c)(2)(B).

Professor Ku is simply wrong in asserting that the statute is silent on the issue of legality. Congress was fully apprised of the President’s intention to conclude an accord. Far from objecting to his plans, it granted him authority to implement any “agreement” – so long as it passed its own specially devised procedure for reviewing the deal

He does, however, have a fallback position. Although Congress plainly gave the president authority to create a “legally binding” agreement, it did not require him to do so – and Professor Ku notes that the Administration at one stage denied that it had any such intention.

When those comments were made, President Obama was thinking of making an Iran deal entirely on his own authority. If he had taken this route, it was only natural for him to concede that he could not bind his successors to his purely executive agreement.

But the constitutional situation radically changed once the President signed the Iran Act in May. When Secretary Kerry hammered out the terms of the Six Power Agreement with Iran on July 14, he could do so with assurance that the agreement had the force of statutory authorization behind it, so long as it survived Congressional review.  Professor Ku fails to point to any subsequent statement from the State Department suggesting that the Administration did not take full advantage of its new legal powers.[1]

In any event, we should be looking at the text of the Agreement itself to determine its legal status. Once again, Professor Ku’s interpretations of the text refute, rather than confirm, his larger claim. He emphasizes that Paragraph 36 of the Agreement creates an “exit ramp” for any party confronted with “significant non-performance” by another signatory.  This is surely an important provision, but it supposes that the American commitment is indeed binding unless and until such a “significant” breach has been established.

To override this obvious implication, the Agreement could have declared explicitly that, appearances to the contrary, it was non-binding.  But no such provision exists. Contrast a recent agreement also dealing with military affairs – the 2011 Vienna Document on Confidence and Security-Building Measures – which loudly proclaims: “The measures adopted in this document are politically binding and will come into force on 1 December 2011.”

Since Professor Ku rests his textual case on Paragraph 36, he has failed to present a convincing defense of Rubio’s position. The Senator is not telling the American people that he would terminate the agreement if he soberly determined that Iran’s on-going conduct fell significantly short of its commitments. Instead, he is saying that “there is nothing” about the agreement “that is binding on the next administration.”

Other commentators have presented additional arguments – both pro and con – based on the language of the agreement. Compare here with here.  A full assessment is beyond the scope of a brief blog-post. It is enough to explain why Professor Ku’s critique entirely fails to refute our position.

[1] Our own independent search of the record has uncovered one relevant sentence from the post-ratification period. It appears on the White House site encouraging the general public to submit petitions soliciting presidential action. This particular petition, with 322,000 signatures, asserted that “47 senators have committed treason”, as well as a violation of the Logan Act, in writing a  “condescending letter to the Iranian government stating that any agreement brokered by our President would not be upheld once the president leaves office.” We do not know who was assigned the task of preparing a brief response to this inflammatory petition. But the anonymous author refused to confront the treason charge directly, providing a discussion which emphasized Congress constructive role, and contenting itself with the observation that “The United States has a longstanding practice of addressing sensitive problems in negotiations that culminate in political commitments, including in areas of national security significance.” See here. This sentence did not engage in any discussion of the Agreement’s text, nor does it explicitly address the interpretive issues we have discussed. Given the surrounding context, it cannot be fairly construed as a serious statement from a high-level official committing the Administration to a well-reasoned position that rejects the legally binding  character of the Iran agreement.

International Open Day at the ICTY

by Jessica Dorsey

The International Criminal Tribunal for the former Yugoslavia (ICTY) is hosting its Annual International Open Day on Sunday, 20 September, at the ICTY Main Building in The Hague as part of The Hague International Day. At the Open Day, there will be opportunities to interact with ICTY Judges and other key staff members, view documentaries produced by the ICTY Outreach Programme, learn about the Mechanism for International Criminal Tribunals (MICT) and explore exhibitions and material from the ICTY Archives. To register or to request more information, click here, or contact Alexa Magee (magee [at] un [dot] org).

ICTY

Human Rights Position at Seton Hall School of Diplomacy

by Kristen Boon

My colleagues at the Diplomacy School have just alerted me to an interesting new opportunity.  All who are interested should apply.  Here is the job ad:

The School of Diplomacy and International Relations at Seton Hall University invites applications for a tenure-track assistant professor position in international human rights law to commence in the 2016-2017 academic year. Applicants must possess a J.D. A Ph.D. in a related discipline is desirable. The expertise to teach and develop other courses related to international law is a plus, including courses in European Union Institutions, or courses related to the Middle East. The position is subject to final budgetary approval.

Successful applicants will demonstrate the ability or potential to teach effectively in a professional school at both the undergraduate and graduate levels. All applicants should have strong research backgrounds or demonstrate substantial potential for conducting important academic research in their field of specialization.

The School of Diplomacy and International Relations prepares graduate and undergraduate students for careers in international affairs and operates in an exclusive alliance with the United Nations Foundation/United Nations Association of the United States of America.

Located only 14 miles from New York City, Seton Hall University is the oldest and one of the largest diocesan universities in the nation. Seton Hall has recently developed a required, undergraduate Core Curriculum, and occasional teaching of a course or two within this curriculum will be required.

All candidates should provide a curriculum vitae, examples of scholarly work, evidence of teaching effectiveness (if available), three letters of recommendation, and a graduate transcript. To receive full consideration, materials should be sent electronically by October 2, 2015 via www.shu.edu (follow employment links). Letters of recommendation should be sent to humanrightssearch [at] shu [dot] edu.

Fifth Annual Junior Faculty Forum for International Law

by Kevin Jon Heller

A few months ago, I participated as a senior faculty member at the Fourth Annual Junior Faculty Forum for International Law in Florence, Italy. It was a fantastic workshop, and the papers presented by the junior faculty were uniformly excellent, including the one by Maria Varaki to which I responded. So I encourage all young scholars to submit abstracts for the Fifth Annual Junior Faculty Forum, which will be held next year in New York City. Here is the call:

The Annual Junior Faculty Forum for International Law is delighted to announce its yearly call for applications for the fifth Forum, which will be held at New York University School of Law on Monday June 27, Tuesday June 28 and Wednesday June 29, 2016.

Designed as an annual feature of the international law calendar, the Forum is aimed at bringing together junior faculty working in the field of international law in order that their work can be presented before an audience of peers and experts and then discussed by established and senior scholars in international law and related fields. The initiative is thus dedicated toward encouraging and facilitating the work of young international law scholars by creating an unrivalled environment of intellectual opportunity, stimulation and exchange. The inaugural Forum was held at New York University in May 2012; it has been followed by the subsequent iterations of the second Forum at the University of Nottingham (May 2013), the third Forum at the University of Melbourne (July 2014) and, most recently, the fourth Forum at the European University Institute in Florence (June 2015).

The fifth Forum shall be convened by the Forum’s founding convenors—Dino Kritsiotis, Professor of Public International Law in the University of Nottingham; Anne Orford, Michael D. Kirby Professor of International Law in the University of Melbourne and J.H.H. Weiler, President of the European University Institute and University Professor at NYU School of Law—who shall be joined by guest convenors Benedict Kingsbury, Murray and Ida Becker Professor of Law at NYU School of Law, and José E. Alvarez, Herbert and Rose Rubin Professor of International Law at NYU School of Law, both of whom currently serve as the Editors-in-Chief of the American Journal of International Law.

Selected presentations from previous editions of the Forum have appeared in previous volumes of the European Journal of International Law (Oxford University Press); for the first time next year, selected presentations from the fifth Forum will be published in the American Journal of International Law.

Interested junior faculty can find additional information here. The deadline for abstracts is December 15.

Weekly News Wrap: Monday, September 14, 2015

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Events and Announcements: September 13, 2015

by Jessica Dorsey

Announcements

  • A special issue of the Nordic Journal of International Law, which Triestino Martinello has co-edited with Dr. Paolo Lobba, has just been released. The topic is ‘The Cross-fertilisation Rhetoric in Question: Use and Abuse of the European Court’s Jurisprudence by International Criminal Tribunals’ and it includes contributions from Sergey Vasiliev, Julia Geneuss, Ulf Linderfalk, Elena Maculan, Michelle Farrell, and Harmen van der Wilt. Please find the editorial for the special issue here. You can view the full table of contents here.
  • The Transnational Dispute Management Journal has published a special issue on the Yukos Arbitration. You can find more information and links to the articles here.
  • In the course of the academic year 2015-16, the Ghent law faculty will organize the ‘International Order & Justice Lecture Series’, i.e., a series of public lectures by eight established international law experts. Confirmed speakers are: Professor Olivier Corten (October), Judge Antônio Cançado Trinade (November), Prof. Klaus Kress (December), Prof. Martti Koskenniemi (February), Dr. Marko Milanovic (March), Prof. Kevin Jon Heller (March), Sir Michael Wood (April) and Prof. Robert Kolb (May). The lecture series is organized with the financial support of the Belgian Society for International Law and the ILA Belgium. The lectures are open for all to attend free of charge, yet prior registration is required (either for a single lecture, or for the entire series). Further information (i.e. dates, venue, registration) can be found here.

Calls for Papers/Abstracts:

  • The Journal of International Peace and Organisation (“Die Friedens-Warte”) is calling for papers for its upcoming issue of volume 90 (2015). The Journal adapts an interdisciplinary approach to all matters relating to peace research, with international law and political science as lead disciplines. All submissions are assessed through double-blind peer review by two experts in the field. The upcoming issue’s focus section is centred around the “Islamic State”; abstracts may be submitted until 18 October 2015. For more detailed information, please see the Call for Papers or the Journal’s website.
  • PluriCourts, Center of Excellence for the Study of the Legitimacy of International Courts and Tribunals at the University of Oslo, will host the 14th Annual Colloquium of the IUCN Academy of Environmental Law, 20-25 June 2016. The theme of the Colloquium is “The Environment in Court – Environmental protection in national and international courts, tribunals, and compliance mechanisms”. The theme of the Colloquium is “The Environment in Court – Environmental protection in national and international courts, tribunals, and compliance mechanisms”. This broad topic seeks to address procedural and substantive aspects of environmental adjudication, both in national, regional and international courts, tribunals as well as non-compliance mechanisms of multilateral environmental treaties. In the context of the Sustainable Developments Goals (SDGs), Principle 10 of the Rio Declaration as well as the Aarhus Convention, the idea of strengthening of an environmental rule of law through access to justice has gathered considerable momentum. For more information, click here. Abstracts should be submitted by 15 January 2016 online at iucnael2016 [at] jus [dot] uio [dot] no. Abstracts will be reviewed on a rolling basis, as received, with a final decision to be provided by 15 March 2016. After acceptance of the abstract, full papers must be handed in by 30 April 2016. The Academy will publish an edited and peer-reviewed collection of selected papers following the colloquium. Contact: Professor Dr. Christina Voigt, University of Oslo, PluriCourts coordinator, environmental law (christina [dot] voigt [at] jus [dot] uio [dot] no).
  • The Centre for Research in International Law (CRIL), a student-run body at National Law Institute University – Bhopal (NLIU) and the official Bhopal Chapter of the International Law Students Association (ILSA), is now accepting submissions for the NLIU e-Journal of International Law. The NLIU e-Journal of International Law is a bi-annual online journal which publishes scholarly articles in the field of international law. It seeks to secure collaboration between students, research scholars and professionals interested in international law, from all over the world. For the 1st edition, the theme of which is Public International Law, submissions are invited for genuine, original and unpublished manuscripts in the form of articles, essays or judgment analyses. The deadline for the submissions is 1st November 2015.” The formal call for papers can be found here. For additional information, you could also visit the website here.

Events

  • On 1-2 October 2015, the University of Luxembourg, in cooperation with the T.M.C. Asser Instituut and with the support of the Fonds National de la Recherche Luxembourg, will be hosting a conference on ‘the European Union as an Actor in International Economic Law’.
    Bringing together international lawyers and EU external relations lawyers, the conference will discuss recent developments concerning EU external action in the field of international economic law, concentrating on a number of important issues raised in recent practice and case law whose resolution does not appear to be in the offing. Panels will consider the division of competences between the EU and the Member States in the field of international economic relations; the inclusion of dispute settlement mechanisms in free trade agreements concluded by the EU; and the distribution of international responsibility between the EU and its Member States; as well as the relation between FTAs and the regulatory powers of the Member States in sensitive fields such as environmental protection, public health and labour law. Confirmed speakers include Prof. Nanette Neuwahl (Montréal and College of Europe), Dr Andrea Ott (Maastricht), Dr Jan Willem van Rossem (Utrecht), Prof. Eleftheria Neframi (Luxembourg), Prof. Enzo Cannizzaro (Rome La Sapienza), Dr Andrés Delgado Casteleiro (Durham), Prof. Paolo Palchetti (Macerata) and Dr Wybe Douma (Asser Instituut). Further details and information on how to register are found here.
  • The University of Pennsylvania is hosting an event entitled: “Iran’s Nuclear Chess: After the Deal” on September 17, 2015 from 4-6:30 p.m. Speakers include General (ret) James “Hoss” Cartwright, the Harold Brown Chair in Defense Policy Studies at the Center for Strategic and International Studies (CSIS), and the former Vice Chairman of the Joint Chiefs of Staff; Dr. Haleh Esfandiari, Public Policy Fellow at the Woodrow Wilson Center, and the Founding Director of the Center’s Middle East Program; Prof. David S. Jonas, Adjunct Professor at Georgetown University Law Center and George Washington University Law School, and the former General Counsel of the National Nuclear Security Administration (NNSA); and Dr. Robert Litwak Vice President for Scholars and Director of International Security Studies at the Woodrow Wilson Center, and the Former Director for Nonproliferation at the National Security Council. More information can be found here.
  • On 21st September 2015 the University of Central Lancashire Institute for International and Comparative Law organises a One-Day Conference International Criminal Trials: Historical Paradigms and Contemporary Dimensions. This conference show cases a series of investigations into the role of international criminal courts. The themes to be addressed include many topics that are at the cutting edge of contemporary discussions within international criminal law that could be usefully further developed to widen both the scope and rationale of this academic subject, not least by developing additional contextual and institutional dimensions. These range from the importance of regional and institutional responses to hybrid wars and piracy, to the recovery and identification of underlying historical paradigms underpinning different interpretive agendas within transnational criminal law. The speakers include Dr Melanie Klinkner, Bournemouth University; Professor James Sweeney, Lancaster University; and Dr Paul Behrens, University of Edinburgh. Please see the programme and more information 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.

Guest Post: Is the International Criminal Court in Need of Support to Clarify the Status of Heads of States’ Immunities?

by Alexandre Skander Galand

[Alexandre Skander Galand is a Ph.D. Candidate at the European University Institute (EUI), Law Department.]

In the aftermath of the last episode of the ‘Al-Bashir saga’, one might have wondered what the International Criminal Court (ICC) will do with the last report (filed on 17 June 2015) of the ICC registry concerning South Africa’s failure to arrest and surrender Sudan’s President. The answer is now clear: there will be proceedings to determine whether South Africa failed to cooperate with the ICC. Indeed, last Friday 4 September, Pre-Trial Chamber II issued an “Order requesting submissions from the Republic of South Africa for the purposes of proceedings under article 87(7) of the Rome Statute”.

As it is known, the Decision of Pretoria High Court Judge Hans Fabricius on 15 June directing the various executive authorities of South Africa to take all necessary steps to prevent President Omar Al-Bashir of Sudan from leaving South Africa was overlooked by the concerned authorities. On the next day, just after the High Court handed down its decision that Al-Bashir be arrested and detained, the counsel for the South African executive authorities informed the Court that Sudan’s President had already left the country.

The ‘Al-Bashir Saga’ raises the question of whether it is crystal clear that Al-Bashir is not immune from the ICC and its States parties’ exercise of jurisdiction. Is the immunity of Heads of States not parties to the Rome Statute completely irrelevant when a State enforces an ICC arrest warrant? Or, must the State be deemed to have waived its immunity? If so, is a Security Council (SC) referral sufficient to waive the immunity of a Head of State? Or, must the immunity to which the Head of State is entitled under international law be explicitly waived by the SC?

The ICC says: In claris non fit interpretatio

Three days before the Pretoria High Court ruling, the ICC Pre-Trial Chamber (PTC) held:

“it is unnecessary to further clarify that the Republic of South Africa is under the duty under the Rome Statute to immediately arrest Omar Al-Bashir and surrender him to the Court, as the existence of this duty is already clear and needs not be further reiterated. The Republic of South Africa is already aware of this statutory duty and a further reminder is unwarranted.” (§ 10)

Continue Reading…

President Rubio/Walker/Trump/Whomever Can Indeed Terminate the Iran Deal on “Day One”

by Julian Ku

Professors Bruce Ackerman and David Golove argue in this Atlantic essay that the next President cannot withdraw from the Iran agreement because it is a “congressionally authorized executive agreement.” They argue that Senator Marco Rubio’s pledge to terminate the Iran Deal on day one “would destroy the binding character of America’s commitments to the IMF, the World Bank, NAFTA, and the World Trade Organization….The President can no more walk away from them than he can from any other law or treaty.”

I am sorry to say that this article, which comes from two super-respected legal scholars, is deeply and badly mistaken.

This argument is based on the premise that the “legislation that Congress adopted last May, …explicitly grants the Administration authority to negotiate and implement binding legal commitments with Iran.” In their view, the Iran Deal is a simply a congressional-executive agreement exactly akin to U.S. trade agreements like NAFTA.

But this premise is wrong.  The U.S. government has repeatedly stated (see here)  that the “Joint Coordinated Plan of Action” between Iran and the P-6 powers is a “nonbinding” political commitment. And the JCPOA itself talks only of “voluntary measures.” (see Dan Joyner’s discussion of this here).   Even the United Nations Security Council Resolution that implements the JCPOA does not legally bind the U.S. to stick to the JCPOA (as John Bellinger argues here).

Nor does the Iran Nuclear Agreement Review Act explicitly (or implicitly) authorize the President to make an agreement with Iran that would go beyond the President’s existing constitutional powers to make sole-executive agreements or nonbinding political commitments. The Review Act simply sets up a disclosure and timetable regime for the President’s disclosure of his foreign affairs activities that he wouldn’t otherwise have to disclose to Congress.

It is nothing like the Trade Promotion Authority that the President has received to conclude trade agreements like NAFTA or the WTO. While the Review Act discusses agreements that were already made and sets out disclosure and timing requirements, Trade Promotion Authority laws (like the most recent one) say things like: “the President— (A) may enter into trade agreements with foreign countries before” certain dates and then cannot afterwards.”  This is explicit authority, and no similar language can be found in the Iran Nuclear Agreement Review Act.

In any event, Ackerman and Golove are also mistaken on a more mundane point. Even if the Iran Deal is a binding congressionally authorized international agreement, a future President could withdraw from such an agreement unilaterally.  This is true because: 1) the JCPOA itself has an “exit ramp” under Paragraph 36 which allows the U.S. to terminate its participation after 35 days if its concerns about Iran’s compliance are not satisfied; and 2) the President appears to have broad constitutional powers to unilaterally terminate treaties without Congress or the Senate’s approval.  Surely, the President could terminate a nonbinding voluntary “plan of action” without going back to a Congress that didn’t really authorize him to make an agreement in the first place.

Even though I am increasingly convinced that the Iran Nuclear Deal is a bad deal for the U.S. and Europe (not to mention Israel), I have publicly defended the legality of President Obama’s decision to conclude a nuclear “agreement” with Iran without going to Congress to get approval. But the decision to bypass Congress has got to have a price for the President.  And that price is that the Iran Deal does not bind his predecessor either as a matter of constitutional or international law.

The Difference Between the British and American Debates Over the Legality of Drone Strikes: The Brits Seem to Care About International Law

by Julian Ku

Earlier this week, British Prime Minister David Cameron announced that the UK had conducted a lethal drone strike against one of its own nationals (affiliated with ISIS)  in August and that the British government was confident of the strike’s legality under international law.

As an outside observer, I am fascinated at how important the drone strike’s legality under international law seems to be for UK policymakers and commentators.  The BBC’s useful analysis of “Who, What, Why: When is it legal to kill your own citizens?” is exclusively focused on the legality of the strike under international law.  So is this editorial from the UK newspaper The Independent.

To be sure, the US debate over drone strikes also dealt seriously with international law.  But the most powerful legal arguments against drone strikes were those made on the basis of the U.S. Constitution’s Due Process Clause and U.S. statutes criminalizing murder of U.S. nationals abroad. International legality has not played a big part in this litigation, nor even in its broader public debate. Senator Rand Paul of Kentucky famously filibustered for a whole day against targeted killings but his legal complaint was wholly constitutional.

But as far as I can tell, there has been little discussion of whether the UK government’s killing of a UK national abroad violates the UK Human Rights Act (incorporating the European Convention on Human Rights) or UK statutory law more generally.  I may be missing something, but it does seem a telling difference in the nature of public and legal discourse in the two countries.

 

Announcement: 11th Annual ESIL Conference 10-12 September

by Jessica Dorsey

The 11th Annual Conference of the European Society of International Law will take place in Oslo, Norway, from 10 to 12 September 2015. It is hosted by the PluriCourts,  Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, University of Oslo. The topic this year is the judicialization of international law. It is still possible to register for the conference by visiting this website.

Selected sessions of the conference will be streamed, and you can see the live webcast here.

Weekly News Wrap: Tuesday, September 8, 2015

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • Opposition to a landmark free trade deal with China is driven by racism and xenophobia, Australian Prime Minister Tony Abbott said on Tuesday, as his political opponents dug in their heels over what they say are weaknesses in its labor provisions.

UN/World

British Government Says “Oops, Our Bad” in Terrorism Case

by Kevin Jon Heller

Well, this is a tad embarrassing for the British government. A prosecution of a Swedish national for providing support to Syrian rebels fell apart when… it became clear the British government had been providing support to the same Syrian rebels:

His lawyers argued that British intelligence agencies were supporting the same Syrian opposition groups as he was, and were party to a secret operation providing weapons and non-lethal help to the groups, including the Free Syrian Army.

Bherlin Gildo, 37, who was arrested last October on his way from Copenhagen to Manila, was accused of attending a terrorist training camp and receiving weapons training between 31 August 2012 and 1 March 2013 as well as possessing information likely to be useful to a terrorist.

Riel Karmy-Jones, for the crown, told the court on Monday that after reviewing the evidence it was decided there was no longer a reasonable prospect of a prosecution. “Many matters were raised we did not know at the outset,” she told the recorder of London, Nicholas Hilliard QC, who lifted all reporting restrictions and entered not guilty verdicts.

In earlier court hearings, Gildo’s defence lawyers argued he was helping the same rebel groups the British government was aiding before the emergence of the extreme Islamist group, Isis. His trial would have been an “affront to justice”, his lawyers said.

Henry Blaxland QC, the defence counsel, said: “If it is the case that HM government was actively involved in supporting armed resistance to the Assad regime at a time when the defendant was present in Syria and himself participating in such resistance it would be unconscionable to allow the prosecution to continue.”

I think the only surprising thing about the case is that the British government dismissed the charges. A similar US prosecution would likely have continued, with the government somehow convincing the judge to prevent the defendant from introducing evidence of its hypocrisy.

Guest Post: A Complementarity Challenge Gone Awry– The ICC and the Libya Warrants

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor, The Center for Global Affairs, NYU-SPS, and Chair, International Criminal Court Committee, American Branch of the International Law Association.]

On July 28, 2015, a domestic court in Libya announced death sentences against Saif al-Islam Gaddafi, the son of former Libyan leader Muammar Gaddafi, and Abdullah al Senussi, who served as intelligence chief. In total, 32 former Gaddafi-era officials were convicted, including 9 who were sentenced to death. Yet, observer accounts suggest the trials were deeply flawed, lacking key fair trial protections. The possibility that Libya will carry out the death sentences is clearly of huge concern to the defendants, but should also be of concern at the International Criminal Court.

On February 26, 2011, the UN Security Council referred the situation in Libya to the International Criminal Court. The Court originally issued 3 warrants for crimes committed during the 2011 uprising, against Muammar Gaddafi, Saif al-Islam Gaddafi, and Abdullah al Senussi, charging them with murder and persecution as crimes against humanity. The case against Muammar Gaddafi was terminated after his death.

Initially at issue in both the Saif Gaddafi and al Senussi cases was whether they should be tried in Libya or at the ICC, as the ICC will only try cases where national courts are “unwilling” or “unable” to conduct the trials. The Court ruled that Saif needed to be tried at the ICC, whereas al Senussi could be tried in Libya, as he was the subject of domestic proceedings and the ICC deemed Libya “willing” and “able” to carry them out. The ICC Appeals Chamber affirmed both rulings.

Yet, despite the ruling that Saif should be tried in The Hague, he was never surrendered, and remains in Libya. His situation is complicated by the fact that he is not held by any governmental authorities, but the “Zintan” militia.

As to al Senussi, this Author thinks the Court erred in its decision. The problem with the criteria of “willing” and “able” (or that a national court is not “unwilling” or “unable” to try the accused, as it is phrased in article 17 of the Rome Statute), is that it generally ignores an equally problematic third possibility – that a national court is “all too willing” to try someone (i.e., the situation of “overzealous” national proceedings). This is a situation one can certainly anticipate any time there has been a regime change and the new government wants to “get” at officials of the past regime – in other words, potentially the situation here. The rush to justice resulting in the Saddam Hussein execution is another example.

Human Rights Watch reports that al Senussi was denied adequate time to prepare his case, and adequate assistance of counsel. Saif, who was not even present for his trial, was apparently denied both these protections, and, additionally, while trials in absentia are permitted in Libya, the procedural safeguards required for them were apparently not provided. While the death penalty is permissible under Libyan law (and its imposition alone does not necessarily mean the trials were unfair), more and more countries categorically oppose the death penalty. At minimum, where it is a possible punishment, it is especially important that fair trial guarantees are scrupulously observed.

Should this turn of events be of concern to the ICC? Indeed.

Saif was supposed to be tried at the ICC, and he could end up executed in Libya. As a result of the ICC’s rulings, a “green light” was given to al Senussi’s trial in Libya, which has also resulted in a death sentence. If the sentences are affirmed on appeal and carried out, the ICC will have played a role in allowing two executions based on trials suspected of serious due process flaws.

There is still a chance for an appeal in Libya. Libya’s Supreme Court should independently and fairly review the verdict, particularly with a view to due process. But in the mean time, more pressure should be put to bear to ensure that Saif is transferred to The Hague (where he should have been all along), and al Senussi’s counsel should move to reopen the admissibility challenge based on newly discovered information (the events in Libya), or the ICC Prosecutor’s Office should do so.

The Appeals Chamber did leave an opening in its July 24, 2014 ruling (.pdf), suggesting that it would not utterly ignore due process violations by a national court, suggesting some concerns of an “all too willing” or “vengeful” national court:

It is clear that regard has to be had to ‘principles of due process recognized by international law’ for all three limbs of article 17(2), and it is also noted that whether proceedings were or are ‘conducted independently or impartially’ is one of the considerations under article 17(2)(c). . . . As such, human rights standards may assist the Court in its assessment of whether the proceedings are or were conducted ‘independently or impartially’ within the meaning of article 17(2)(c).

To the extent the Appeals Chamber also suggested the national proceedings would have to be “completely lack[ing in] fairness” such that they fail to provide “any genuine form of justice,” before the ICC can be the proper venue, the Judges are setting the bar too high. (Alternatively, it is conceivable that, upon further inquiry, one might find even that bar met.)

It is true that the drafters of the Rome Statute specifically rejected making the lack of due process a ground for admissibility. Yet, the precedent they were dealing with at the time – the experiences of the ICTY and ICTR, where “unwilling” and “unable” trials respectively were the concern – simply do not reflect what has become the experience of the ICC. Moreover, it is quite possible –as the Appeals Chamber has done — to read a “due process” component into the language of article 17 of the Rome Statute.

Based on the events in Libya—flawed proceedings that suggest a lack of impartiality—the Court should now find the al Senussi case “admissible” at the ICC and order him transferred. If that happens, individual states and the UN Security Council should be prepared to help ensure the transfer actually happens.

These may not seem the most significant cases the ICC has on its docket (they probably aren’t), but it would be a bleak day if the ICC (and the UN Security Council) stand by and let these death sentences be carried out on cases that stemmed from the Security Council’s referral, and as to which the ICC was involved.