Archive for
October, 2015

So How Is China Taking Its Loss at the UNCLOS Arbitral Tribunal? Not Well.

by Julian Ku

I have been curious to see how China would respond to yesterday’s UNCLOS Annex VII Arbitral Tribunal’s ruling finding it has jurisdiction to hear the Philippines South China Sea related claims.  Well, the Chinese Ministry of Foreign Affairs was ready with this blistering response:

Q: The Arbitral Tribunal established at the request of the Republic of the Philippines rendered the award on jurisdiction and admissibility of the South China Sea arbitration. What is China’s comment on that?

A: The Chinese government will not accept nor participate in the South China Sea arbitration unilaterally initiated by the Philippines. The Chinese Foreign Ministry has immediately released a statement to elaborate on China’s solemn position. The award is null and void, and has no binding effect on China. I would like to highlight three points.

First, China has indisputable sovereignty over the South China Sea Islands and the adjacent waters. As a sovereign state and a State Party to the UNCLOS, China is entitled to choose the means and procedures of dispute settlement of its own will. China has all along been committed to resolving disputes with its neighbors over territory and maritime jurisdiction through negotiations and consultations. China and the Philippines have repeatedly reaffirmed in bilateral documents since the 1990s and the Declaration on the Conduct of Parties in the South China Sea (DOC) in 2002 that they shall resolve relevant disputes through negotiations and consultations.

Second, disregarding that the essence of this arbitration case is territorial sovereignty and maritime delimitation and related matters, maliciously evading the declaration on optional exceptions made by China in 2006 under Article 298 of the UNCLOS, and negating the consensus between China and the Philippines on resolving relevant disputes through negotiations and consultations, the Philippines and the Arbitral Tribunal have abused relevant procedures, misrepresented the law and obstinately forced ahead with the arbitration, and as a result, have severely violated the legitimate rights that China enjoys as a State Party to the UNCLOS, completely deviated from the purposes and objectives of the UNCLOS, and eroded the integrity and authority of the UNCLOS.

Third, as a State Party to the UNCLOS, China firmly opposes the acts of abusing the compulsory procedures for dispute settlement under the UNCLOS, and calls upon all parties concerned to work together to safeguard the integrity and authority of the UNCLOS. China urges the Philippines to honor its own commitments, respect China’s rights under international law, change its course and return to the right track of resolving relevant disputes in the South China Sea through negotiations and consultations. That is the correct path with bright prospects.

The full MFA statement is here, and includes a swipe at the Philippines for using the “cloak of law as a political provocation.”  It is worth noting that China is still aiming most of its rhetorical fire at the Philippines, but it has also now directly criticized the Arbitral Tribunal for “abus[ing] relevant procedures [and] misrepresent[ing] the law….”  I also detect a slightly larger emphasis in China’s complaint about the “unilateral” nature of this arbitration.

I am also impressed by China’s willingness to just ignore the clear provisions of Article 288(4) of UNCLOS, and simply declare that the Tribunal’s ruling is “null and void” and has “no binding legal effect.”  At some point, someone in China is going to have to gin up a legal argument to get past UNCLOS’ clear language giving the Tribunal the power to determine questions of jurisdiction.  But for now, it looks like China is going to stick to its guns.

So It’s Settled: The President Can Violate Customary International Law

by Julian Ku

There is a lot of interesting material revealed in the Charlie Savage NYTimes article on the legal justification for the Bin Laden raid (including how the Attorney General and Office of Legal Counsel were kept in the dark and out of the loop).  But I want to focus on one paragraph in the article, which explained the lawyers’ backup justification for their conclusion:

There was also a trump card. While the lawyers believed that Mr. Obama was bound to obey domestic law, they also believed he could decide to violate international law when authorizing a “covert” action, officials said.

Deborah has done some very good analysis here on the CIA’s views on this question, as applied to non-self-executing treaties. I think that is a tricky question. But there is also an easier question that was also probably settled in the lawyers’ legal memos.  Like the Bush administration lawyers, the Obama Administration lawyers concluded that the President can choose to violate that customary international law without violating the Constitution or other domestic law.

Although this may seem obvious, it used to be a highly contested question.  I dug up this discussion from a 1986 panel between leading international law scholars Louis Henkin, Anthony D’Amato, Michael Glennon, Abe Chayes and others.  Almost none (even President Reagan’s legal adviser Abe Chayes) would have openly admitted that the President could violate customary international law. The Restatement of U.S. Foreign Relations Law suggests, but does not completely endorse the view that the President can openly violate customary international law.  Indeed, there used to be a fair number of law review articles explaining why the President’s obligation to “Take Care” that the laws are faithfully executed include customary international law. But, if Savage’s reporting is accurate, the U.S. government (under both George Bush and Barack Obama) is no longer troubled by this question, and has moved on. So should the rest of us, apparently.

Breaking: UNCLOS Tribunal Rules Against China, Unanimously Finds It Has Jurisdiction Over Philippines South China Sea Claims

by Julian Ku

It’s been a rough week for China’s South China Seas policy. In addition to facing a US Freedom of Navigation operation near one of its artificial islands, the arbitration tribunal formed under the United Nations Convention on the Law of the Sea has decided that it has jurisdiction to proceed to the merits on the Philippines’ legal challenge to certain Chinese activities in the South China Sea.

I will blog more about this later, but for now it is worth noting that the tribunal unanimously ruled that it can proceed to the merits on seven out of 15 of the Philippines’ claims, and that it reserves the question of jurisdiction on seven other claims as being so interwoven with the merits that it cannot be resolved without first considering the merits.

I will note that the tribunal reserved the question of jurisdiction over the Philippines’ biggest and most flashy claim: the argument that China’s Nine Dash Line “historic rights” claim is inconsistent with UNCLOS. It held that:

The Philippines’ Submission No. 1 does, however, require the Tribunal to consider the effect of any historic rights claimed by China to maritime entitlements in the South China Sea and the interaction of such rights with the provisions of the Convention. This is a dispute concerning the interpretation and application of the Convention. The Tribunal’s jurisdiction to consider this question, however, would be dependent on the nature of any such historic rights and whether they are covered by the exclusion from jurisdiction over “historic bays or titles” in Article 298. The nature and validity of any historic rights claimed by China is a merits determination. The possible jurisdictional objections with respect to the dispute underlying Submission No. 1 therefore do not possess an exclusively preliminary character. Accordingly, the Tribunal reserves a decision on its jurisdiction with respect to the Philippines’ Submission No. 1 for consideration in conjunction with the merits of the Philippines’ claims.

On the other hand, the Tribunal did find that the question of whether the Scarborough Shoal is a “rock” or an “island” is clearly within the jurisdiction of the Tribunal, irrespective of the merits. It did so because it held that there are no overlapping sovereignty or sea boundary claims that might impact the determination.

Overall, it should never be surprising when an arbitral tribunal finds that it has jurisdiction to hear a case. The Tribunal did throw China a bone by noting that it is still possible that seven of the Philippines’ claims (including the Nine Dash Line challenge) could be dismissed for lack of jurisdiction at the merits stage.

But by reserving the question of jurisdiction, and guaranteeing it will rule on the merits for several other claims, the Tribunal shoves the ball back onto China’s court.  Will China continue to claim it is not bound by the Tribunal for lack of jurisdiction, when the Tribunal has now found it has jurisdiction?  China would more clearly be in violation of UNCLOS now than it was before, because UNCLOS Article 288(4) makes it clear that “[i]n the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.”  My guess is China will pretend that Article 288 doesn’t exist and continue to refuse to participate.  The interesting question is whether China will pay any serious price (in reputational terms) if it does so.

More Memos Anyone?

by Jens David Ohlin

Today the New York Times reported on the existence of four secret memos covering the various aspects of the U.S. Navy Seals raid that killed Osama Bin Laden.  It would be great to see the memos, but I wouldn’t hold your breath. They aren’t likely to be released in the very near future, though I think each of them would, in very significant ways, increase our understanding of how the United States executive branch understands crucial questions of international law.

For now, until the memos arrive, here are a few brief comments about the underlying issues contained in them. First, let’s discuss the duty to capture. I think the memo (at least from its description in the New York Times) gets this exactly right. If Bin Laden effectively communicated his intention to surrender, the attacking forces are required to respect that decision and take him into custody instead of killing him. However, there is no affirmative obligation under IHL to offer targets the opportunity to surrender before attacking them. In other words, one does not need to ask a target if they wish to surrender before killing them. Based on this analysis, it is entirely legal under IHL for a military operation to proceed with the intention to kill the targets rather than to capture them (although query whether Ryan Goodman, presently at DoD, might disagree with this conclusion).

Another memo dealt extensively with the putative violation of Pakistan’s sovereignty caused by the Navy Seals raid. According to the Times article, the focus of the memo was the Unwilling or Unable standard, which has been extensively vetted on this blog in the past (including some intense back-and-forth between Kevin Heller and Marty Lederman). I wanted to make two quick points about the nature of this debate. First, I think the discourse is focused far too much on customary international law, which to my mind is of limited–or even no–relevance to the issue. (In this respect, various statements regarding self-defense from the ICJ, including in Nicaragua, have contributed to this confusion.) In reality, the law of self-defense is a question of treaty interpretation, governed by article 51, which recognizes and preserves, but strictly speaking does not create, an inherent right under international law. Indeed, even if customary international law were to purport to eliminate the right of self-defense, the right would still endure as legally effective, in part because it is an inherent right that cannot be taken away–a point recognized by the text of article 51 as central to the UN Charter regime. Consequently, the real test of the unwilling or unable standard is whether it is consistent with both the natural right of self-defense and the text of article 51–something that the current debate has shown insufficient attention to. And, dare I say it, the text of article 51 suggests that the provision was designed to carve out, as an exception from the general prohibition on the use of force, the defensive rights that existed pre-charter going back as far as natural law. That should be the focus of the analysis.

OK, now back to watching the GOP debate.

Contra CIA, Non-Self-Executing Treaties Are Still the Supreme Law of the Land

by Deborah Pearlstein

Let’s set aside for now the apparent reliance on the “unwilling or unable” exception to justify the U.S. invasion of Pakistan without that country’s consent – even without having asked the country for its consent. Let’s also set aside the apparent designation of the bin Laden operation as a “covert action” under U.S. law – when it’s not at all clear the operation was intended “to influence political, economic, or military conditions abroad,” as the U.S. law of covert action requires (as opposed to, for example, just killing or capturing bin Laden). The most troubling sentence in Charlie Savage’s new New York Times piece on the legal theory underlying the United States’ 2011 incursion into Pakistan to kill or capture Osama bin Laden is this: “While the lawyers believed that Mr. Obama was bound to obey domestic law, they also believed he could decide to violate international law when authorizing a ‘covert’ action, officials said.” Continue Reading…

Guest Post: Norm Diffusion in the Transpacific Partnership

by Ardevan Yaghoubi

[Ardevan Yaghoubi is a Ph.D Student at Princeton University’s Department of Politics.] 

“As we speak, China wants to write the rules for the world’s fastest-growing region. That would put our workers and our businesses at a disadvantage. Why would we let that happen? We should write those rules.”  – President Obama, State of the Union Address, January 20, 2015

Proponents of the recently-concluded Trans-Pacific Partnership (TPP) typically argue that the agreement will do one of two things: increase economic growth through exports and jobs, or advance favorable geopolitical and national security objectives. The economic perspective on the agreement sees a rational-choice model of expected economic utility; the geopolitical frame emphasizes the TPP’s role in creating reputation, prestige, and soft power.

But the strictly material and abstractly ideational explanations of the TPP both miss an important feature of the agreement: that the TPP is designed to create norms that spread across the international system. It is not only intended to bring about economic benefits or directly buttress American allies in Asia to counter a rising power. In the study of international politics, this process is called norm diffusion. I argue that understanding norm diffusion helps to articulate the implicit theory behind President Obama’s metaphor of “writing the rules”. By melding insights about norm diffusion to the frame of a traditional trade agreement, the TPP is a unique and noteworthy innovation in international law and institutionalism. Whatever one’s thoughts about the merits of the TPP, the basic hypothesis undergirding its intended effects deserves greater clarity.

In this post, I explore the logic of norm diffusion in the TPP: Is norm diffusion an objective of the TPP? If so, how exactly is the process of diffusion expected to occur? And what obstacles might block the reproduction of the TPP’s rules? I will address these questions in turn.

Is the TPP Really About Norm Diffusion?

Alongside their traditional role of merely cutting tariffs and lowering trade barriers, today’s FTAs are a tool of international economic competition: the rules contained in these agreements regulate and shape industries from agriculture to manufacturing to finance. It is hardly controversial, then, that FTAs will tend to reflect the economies and economic priorities of the states who have negotiated them. States don’t have total latitude in determining the content of FTAs, since WTO rules still exert substantial influence. But there are many parts of the world economy where the WTO’s influence is limited.

What norms are these? Well, the TPP text agreed on in Atlanta contains chapters regulating norms spanning the right to organize, the illegal trade of wildlife and environmentally protected species, generic medicines, copyright infringement, 3D printing and manufacturing, financial investments, state-owned enterprises and government procurement, and of course, tariffs and non-tariff barriers to trade.

But the TPP came into being at the end of a two-decade period in which American influence in the global trade system has been waning. While the number of new agreements negotiated has increased dramatically since the millennium, the U.S. has signed just a handful of notable new FTAs: with Korea (2012), Dominican Republic-Central America or DR-CAFTA (2005), Singapore (2004), Chile (2004), and Australia (2004). Taking stock of the total number of agreements by region, the U.S. lags behind the Asia Pacific, South America, Eurasia, Europe, the Middle East, and Africa.

Seen against this economic and geopolitical backdrop, the necessity of the TPP from an American policy perspective should be evident: it represents approximately 40% of global GDP across North and South America and the Asia Pacific, and nearly one-third of global trade. Without it, the U.S. loses leverage and potential economic opportunities in a century where its percentage share of the global economic pie will continue to shrink. It also brings post-war allies, like the U.S. and Japan, closer together as a key element of the “pivot to Asia”, while integrating non-allied states like Vietnam and Malaysia.

Many geopolitical analyses of the TPP end with vague references to “soft power” or U.S. national security interests and little explanation of how the TPP will actually further those aims. What these narratives miss is that the logic of the agreement is based on a theory of norm diffusion. In its essence, norm diffusion (or sometimes called norm “cascade”) refers to “an active process of international socialization intended to induce norm breakers to become norm followers”. International relations scholars have given careful attention to the way in which norms and rules circulate and achieve legitimate compliance in international politics and international law.

But what is striking about the TPP is that its architects are themselves conscious of these socialization effects. For instance, here is a representative statement by USTR Ambassador Michael Froman writing in Foreign Affairs: Continue Reading…

Oxford Bibliography on the Nuremberg Trials

by Kevin Jon Heller

I’m delighted to announce that — at long last — Oxford Bibliographies Online has finally published an annotated bibliography on the Nuremberg Trials that I co-authored with Catherine Gascoigne, an utterly brilliant young PhD student in law at Cambridge. The bibliography covers both the IMT and my beloved NMTs; here is the introduction:

The “Nuremberg trials” generally refers to a series of thirteen trials held in the immediate aftermath of World War II. The first—and by far the most celebrated—trial was conducted by the International Military Tribunal at Nuremberg (IMT) between 20 November 1945 and 1 October 1946. The IMT was created by the United States, Britain, France, and the Soviet Union pursuant to an agreement signed by the four Allies on 8 August 1945. Twenty-four high-ranking Nazi leaders were initially charged, including Hermann Goering, Rudolf Hess, Arthur Seyss-Inquart (the architect of the Final Solution), and Albert Speer, but Robert Ley committed suicide and Gustav Krupp was found mentally unfit to stand trial. Martin Bormann, Hitler’s secretary, was tried in absentia. The indictment contained four counts: (1) common plan or conspiracy (later limited by the Tribunal to crimes against peace); (2) crimes against peace; (3) war crimes; and (4) crimes against humanity. Eighteen defendants were convicted on at least one count, with 12 being sentenced to death and three to life in prison. Three defendants—Hans Fritzsche, Franz von Papen, and Hjalmar Schacht—were completely acquitted. The next twelve trials were held by the Americans between 1946 and 1949 pursuant to Law No. 10, which the Allied Control Council—the de facto government in Germany—adopted after the four Allies responsible for the IMT failed to agree to hold a second international trial. The twelve trials, collectively known as the Nuremberg Military Tribunals (NMTs) or the “Subsequent Proceedings,” generally followed the substantive and procedural law of the IMT. The NMTs prosecuted 177 defendants representing, in the words of chief prosecutor Telford Taylor, “all the important segments of the Third Reich”: doctors; Nazi judges and prosecutors; SS officers; military leaders; German industrialists and financiers; members of mobile killing squads, the Einsatzgruppen; and Nazi ministers and diplomats. One hundred forty-two defendants were convicted; twenty-five were sentenced to death, twenty were sentenced to life imprisonment, and ninety-seven received terms of imprisonment. One convicted defendant—Alfried Krupp—was also required to forfeit his property. Nevertheless, because of Cold War pressures on the United States to enlist Germany in the nascent fight against Communism, no convicted NMT defendant remained incarcerated by the end of 1958.

You can find the bibliography here, though an institutional subscription is required. I hope it proves helpful!

Constitutionality of Congressional Restrictions on Guantanamo Prisoner Transfers

by Deborah Pearlstein

Harold Koh has an interesting post over at Just Security thinking through what options would remain available to President Obama to close Guantanamo if Congress once again imposes restrictions on the transfer of prisoners off the base. Congress has imposed a range of such restrictions in annual legislation since 2009, invariably prohibiting the transfer of prisoners to the United States. As Koh notes, Congress has accomplished this on each occasion not by imposing an outright ban, but through its capacious Spending Clause power under Article I of the Constitution. Congress famously holds the purse strings for all U.S. government spending, and it has prohibited the expenditure of any funds for the purpose of such transfers. Are these restrictions an unconstitutional infringement by Congress on the President’s own powers under Article II (as Commander in Chief, etc.)? Koh stops short of answering directly, but he does say this (quoting President Obama’s recent veto statement and past signing statement):

“[M]ost likely, the President’s action would stand even if challenged, as Prosecutor-in-Chief to ‘determine when and where to prosecute them, based on the facts and circumstances of each case and our national security interests,’ and as Diplomat-in-Chief and Commander-in-Chief to decide and arrange through negotiations ‘when and where to transfer them consistent with our national security and our humane treatment policy.’”

Koh is surely right there must be some limits to Congress’ power to act through spending restrictions, as with all constitutional power; legislation will be held unconstitutional if it violates Bill of Rights prohibitions, for example. Particularly to the extent the legislative restrictions impinge on the President’s prosecutorial powers (although only to that extent – it seems clear the administration still contemplates criminally prosecuting only a fraction of the remaining detainees), the President has a constitutional case to make that the Constitution gives him, and only him, not only the power but the duty to execute the laws that are established. Koh might also have added that the weight of history, such as it is, is on the President’s side. As I’ve written in detail elsewhere, in all of the major wars of the 20th and 21st centuries in which U.S. detention operations are now concluded – World Wars I and II, Korea and Vietnam, the 1991 and 2003 Iraq Wars – conflicts during which the United States held hundreds of thousands of prisoners in total, the imprisonment of enemies held pursuant to wartime authorities has always come to an end, and the resolution of these detentions has always been handled by the executive branch. Indeed, Congress has not imposed anything like the current restrictions on the exchange, transfer or release of prisoners, during or after the period of armed conflict in any of the previous conflicts over the past century.

Nonetheless, I remain deeply skeptical of the strength of the constitutional argument that the President has sufficient Article II power to succeed in demonstrating that the spending restrictions are an unconstitutional infringement on presidential power. Continue Reading…

China’s Weak Legal Basis for Criticizing the US Navy’s Freedom of Navigation Operations in the South China Sea

by Julian Ku

The US Navy executed a much anticipated “freedom of navigation operation” (FONOP) today within 12 nautical miles of Subi reef, the site of one of China’s artificial islands in the South China Sea.   Predictably, China has reacted sharply to this operation by sending two Chinese destroyers to shadow the U.S. ship and planes, summoning the U.S. ambassador, and issuing angry public statements (see below).  Although it is not the main focus of their complaints, the Chinese have repeatedly described the U.S. operation as “illegal” thus highlighting the legal conflict underlying this naval showdown.

The most detailed official reaction was presented by China’s Ministry of Foreign Affairs spokesperson Lu Kang.

The USS Lassen illegally entered waters near relevant islands and reefs of China’s Nansha Islands without the permission of the Chinese government on October 27. Relevant authorities of the Chinese side monitored, followed and warned the US vessel. Relevant actions by the US naval vessel threatened China’s sovereignty and security interests, put the personnel and facilities on the islands and reefs at risk and endangered regional peace and stability. The Chinese side hereby expresses strong dissatisfaction and opposition.

It is unclear exactly how the U.S. ship put personnel on the islands and reefs at risk, but in any event, the spokesperson went on to assure the world that China has, and always will, respect the freedom of navigation consistent with international law.

China’s Deputy Foreign Minister Zhang Yesui echoed these remarks, although this statement focused more on China’s “indisputable sovereignty” than on the legality of the U.S. actions.  China’s Foreign Minister Wang Yi simply warned the U.S. against “stirring up trouble.” Perhaps more seriously, China’s Defense Ministry spokesperson called the U.S. action an “abuse” of the principle of “freedom of navigation under international law” that would cause “harm” to bilateral trust and relations.

As I suggested in a previous post, the US and China might have chosen to downplay this incident by treating the U.S. naval visit as an “innocent passage” through China’s territorial seas.  But China believes even innocent passage requires its permission, and the U.S. Navy made sure that its destroyer was accompanied by naval surveillance aircraft. The inclusion of the aircraft makes it clear that the U.S. is not trying to claim an “innocent passage.” Rather, the U.S. is stating (through its actions) that it does not believe Subi reef (where the Chinese have added an artificial island) is a rock or island generating a territorial sea.  Therefore, US naval vessels should be free to conduct any activity they wish in this area.

It is interesting that at least one Chinese media outlet is claiming that there is no real conflict over international law between the two sides.  In this portrayal, China’s actions in building artificial islands is “completely legal” and the U.S. is just trying to flaunt its power by “harassing” China.  China’s legal position appears to be that it is building artificial islands on reefs that are entitled to a 12 nautical mile territorial sea.  Or, as another commentator sympathetic to China’s position has argued, because China claims every land feature in the South China Sea, even if the relevant reef is not entitled to a territorial sea, other nearby land features (also claimed by China) probably generate such rights.

In my view, the U.S. has a much stronger legal position.  Indeed, China is barely offering any serious legal defense other than repeating the words “indisputable sovereignty” repeatedly.  China is not doing itself any favors by calling US actions illegal, but failing to offer any specific criticism or explanation of its own legal position.

On the other hand, perhaps it is China’s interest to downplay the legal aspects of this dispute, and to feed the narrative that the U.S. is “provoking” a confrontation.  To some degree,this is working, as the global and Chinese media are feeding the narrative about a US-China naval showdown and ignoring the niceties of the U.S. legal position.  Indeed, if China raises the stakes by threatening some military response (as it is getting close to doing), it will be hard to convince the world (or the U.S. public) that such a conflict is worthwhile in order to vindicate an abstract legal principle like “freedom of navigation.”

Missing Charges in the OTP’s Georgia Request

by Kevin Jon Heller

I  have finally made my way through the OTP’s 162-page request to open an investigation into the situation in Georgia. I hope to write a few posts in the coming days on various aspects of the request; in this post I simply want to note my surprise that the OTP has not alleged that Georgia is responsible for two interrelated war crimes: Art. 8(2)(b)(ix), “[i]ntentionally directing attacks against… hospitals and places where the sick and wounded are collected, provided they are not military objectives”; and Art. 8(2)(b)(xxiv), “[i]ntentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law.” Paragraph 175 of the request, which discusses an attack by Georgian armed forces on Russian Peacekeeping Forces Battalion headquarters (RUPKFB HQ), would seem to amply justify both charges (emphasis added):

According to information provided by the Russian authorities, at around 06h35 on 8 August 2008 a Georgian tank, located on the road leading from Zemo-Nikozi to Tskhinvali, fired at the Glaz observation post, located on the roof of the RUPKFB HQ barracks, wounding Jun Sgt I.Ya. Lotfullin.240 Following this attack on the RUPKFB HQ, Georgian armed forces carried out a larger attack on the RUPKFB HQ using small arms, mortars, artillery and tank guns. The attack lasted around 20 minutes. At approximately 07h00, Georgian tanks moving towards Tskhinvali allegedly fired on and destroyed an infantry fighting vehicle (type BMP-1, hull number 619) and an armoured patrol car (type BRDM) that had been placed on the Tshkinvali road to separate the opposing sides. Two peacekeepers on duty are alleged to have been killed. The Georgian armed forces allegedly reopened fire on the RUPKFB HQ at 07h40 and 8h00, killing another two Russian peacekeepers. In the course of the attack on the RUPKFB HQ, the Georgian armed forces also allegedly targeted a medical aid post and ambulances which were located inside the compound and appropriately marked with Red Cross symbols. The shelling of the RUPKFB HQ is said to have continued through the day until 9 August 2008.

The absence of charges involving the medical facility and the ambulances is particularly baffling given that, as Patryk Labuda has ably discussed, the OTP might find it difficult to prove its more general allegations concerning Georgia’s attacks on Russian peacekeepers. The attacks on the medical facility and ambulances would be criminal even if the Russian soldiers at the RUPKFB HQ did not legally qualify as peacekeepers at the time of the attack. So it is clearly in the OTP’s interest to pursue Art. 8(2)(b)(ix)&(xxiv) charges in addition to the Art. 8(2)(b)(iii) peacekeeper charges — even if only as a fallback should the peacekeeper charges fail.

Chase Madar on the Weaponisation of Human Rights

by Kevin Jon Heller

Last week, the inestimable Chase Madar gave a fascinating talk at SOAS entitled “The Weaponisation of Human Rights.” More than 100 people showed up, and I was privileged — along with Heidi Matthews, a British Academy postdoc at SOAS — to respond to Chase’s comments. Here is Chase’s description of the talk:

Human rights, once a rallying cry to free prisoners of conscience and curb government abuses, is now increasingly deployed as a case for war, from Yugoslavia to Iraq, from Libya to Afghanistan. Human rights lawyers in and out of government are weighing in on how wars should be fought: in the United States, the phrase “human rights-based approach to drones” passes without much comment in the legal academy and mainstream media. As the grandees of the human rights movement enter high office throughout North America and Western Europe, what is the effect of this legal doctrine on warfare–and vice versa?Will this blossoming relationship bring about more humanity in warfare? Or is human rights being conscripted into ever more militarized foreign policy?

SOAS has now made the video of the event available on YouTube; you can watch it below:



The video contains Chase’s talk, along with my response and Heidi’s response. We apologize for the middle section, where the lighting is bad; I don’t know why that happened. But the audio is excellent throughout.

Please watch!

Weekly News Wrap: Monday, October 26, 2015

by Jessica Dorsey

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


Middle East and Northern Africa





Events and Announcements: October 25, 2015

by Jessica Dorsey


  • The EIUC and KU Leuven are launching a new MOOC (massive open online course) on the EU and Human Rights. A short description from their website: “Whether you are an EU citizen or not, this course concerns you! The EU is a major global actor in the field of human rights. EU treaties state that human rights are a fundamental value of the Union, which must be a ‘silver thread’ in all its policies. The EU now acts within an impressive array of competences, and therefore has the potential to impact – positively or negatively – anyone’s human rights.” You can register now and find more information here.
  • The Centre for Business and Commercial Laws (CBCL) of National Law Institute University, Bhopal in collaboration with Tanikella Rastogi Associates, is organising the latest edition of the NLIU-TRA Contract Drafting Competition.The participants are required to draft a contract as per instructions provided to them. Subsequently, one representative from the top four teams will be interviewed on the contract for award of rankings.The last date for the submission of the draft is 22nd November, 2015 (11:59 pm). Submission of the draft shall be considered as registration of the team. A maximum of two persons can participate as a team for the competition. The dates of the telephonic negotiation shall be informed to the qualifying participants at a later stage. More information can be found here, the rules here and the case study here.

Calls for Papers/Abstracts:

  • Call for papers: TDM special issue on international arbitration involving commercial and investment disputes in Africa. This special issue will explore topics of particular interest and relevance to international arbitration in light of Africa’s unique and evolving situation. The issue will focus on sub-Saharan Africa and will address issues pertaining to both commercial and investment arbitration. It will also likely explore alternative methods for resolving disputes, including litigation, mediation, and local dispute-resolution mechanisms. This issue will be edited by Thomas R. Snider (Greenberg Traurig LLP), Professor Won Kidane (Seattle University Law School and the Addis Transnational Law Group), and Perry S. Bechky (International Trade & Investment Law PLLC).
  • The Bernard and Audre Rapoport Center for Human Rights and Justice at The University of Texas at Austin School of Law invites submissions for an interdisciplinary conference on the theme “Inequality and Human Rights,” to be held April 7-8, 2016.Since the current global financial crisis began in 2008, income and wealth inequality both within and between countries has come under attack from multiple perspectives. While there is much methodological debate about how best to measure economic inequality globally, many of the figures are alarming. We invite papers from any discipline that consider whether international human rights law, movements, and discourses have, could or should engage with the problem of economic inequality nationally or internationally. Are human rights frameworks equipped to address economic inequality? Might their promotion foreclose other, more effective, vocabularies and strategies aimed at economic justice? How might human rights frameworks need to change to contribute to a more egalitarian world? Please send an abstract of under 600 words to Julia Dehm (jdehm [at] law [dot] utexas [dot] edu) by December 1, 2015. More information can be found here.


  • The UN Charter turns 70 this week, and the University of Georgia School of Law is joining in the global celebration – it’s also the 38th birthday of the school’s Dean Rusk International Law Center. Monday, October 26, from 4-6 p.m., will mark the rededication of the Louis B. Sohn Library on International Relations in its new home, in the renovated Center. Dr. Kannan Rajarathinam (Georgia law LLM’88), Head of Office, UN Assistance Mission for Iraq, Basra, will speak on a critical topic: “The United Nations at 70: Pursuing Peace in the 21st Century.” Also giving remarks – on Georgia Law luminaries like Professors Sohn, Professor and former U.S. Secretary of State Rusk, Professor Gabriel Wilner, and Professor Sigmund Cohn – will be Dean Peter B. “Bo” Rutledge, Associate Dean Diane Marie Amann, Professor Harlan Cohen, and alums Dorinda Dallmeyer and Ken Dious. Details can be found here and the event will be livestreamed here.
  • On November 20-21, 2015, the International Nuremberg Principles Academy will hold the conference The Nuremberg Principles 70 Years Later: Contemporary Challenges. The conference will take place on the 70th anniversary of the beginning of the Nuremberg trials. The conference program can be found here.

  • The Washington D.C. Delegation of the ICRC announces a panel on Wednesday, November 4th from 5:30-7pm at Georgetown Law School titled “Urban Warfare: Effects of Explosive Weapons on the Civilian Population.”  The panel is inspired by the ICRC’s recent report on the use of explosive weapons in populated areas. The panel features Commander Mike Adams, Jonathan Horowitz, Chris Harland, and Gary Solis as the moderator. Drinks will be served starting at 5pm, and the panel will begin at 5:30, ending at 7pm with time for questions. The panel will be held in McDonough 203 at the Georgetown University Law Center.  

  • The Eighth Annual Space, Cyber and Telecommunications Washington DC conference hosted by the University of Nebraska College of Law taking place Oct. 29th and 30th at the Hyatt Regency Washington on Capitol Hill will cover topics at the forefront of current policy discussions: U.S. commercial space legislation and cybersecurity. The conference will include presentations from the top lawyers and policy-makers at government agencies, such as FAA, FCC, NASA, US State Dept., US Cyber Command, and private corporations, including SpaceX, Virgin Galactic, Planetary Resources, Boeing, Microsoft, and Comcast. This year, the space law portion of the conference will include panel discussions of current space legislation. The last major revisions to US commercial space legislation occurred over a decade ago. Choices that will be made in the legislation will impact the competitiveness of and investment in the US commercial space industry, one of critical importance to the US economy. The following day, the cyber law portion of the conference will feature panel discussions on “cybersecurity.” Despite its importance across many domains, cybersecurity is not a well-defined concept. The meaning and scope of cybersecurity problems, and the viability of potential solutions to these problems, differ substantially between, e.g., civilian, criminal, and national security institutions, between large and small businesses, between commercial, infrastructure, and consumer uses. The purpose of this event is to explore what different stakeholders mean when discussing “cybersecurity,” and in particular how these understandings relate to or conflict with one another. For more information, including how to register, click 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: Bolivia’s First Triumph in The Hague

by Andrés Guzmán Escobari

[Andrés Guzmán Escobari is a former Bolivian diplomat, Master in Conflict Resolution and Governance of the University of Amsterdam and associate researcher for the German Foundation Friedrich-Ebert-Stiftung. The opinions expressed are strictly personal.]

The ICJ recently delivered its judgment on Chile’s preliminary objection to its jurisdiction in the case “Obligation to negotiate access to the Pacific Ocean”, initiated by Bolivia in 2013. The Court rejected the Chilean objection and declared that it has jurisdiction to hear the Bolivian case by 14 votes in favor to 2 against. This decision surprised almost everyone not because the Bolivian arguments lack legal basis, but because of the overwhelming rejection of the Chilean legal reasoning, primarily based in the existence of a boundary Treaty signed with Bolivia in 1904.

This astonishing and resounding first triumph for Bolivia has naturally caused stir in Chile, where some analysts spoke of “a spectacular failure” (CNN Chile, 24/09/2015) and others of “a strong and shameful defeat” (DiarioUchile, 25/09/2015). Nevertheless, and not surprisingly, President Michel Bachelet declared: “Bolivia has not won anything” (La Tercera, 24/09/2015). But concern among Chileans is strong and clear, as this judgement follows a bad experience in the case about the maritime delimitation with Peru (solved by the ICJ in 2014). Moreover, to face the further proceedings on the merits, Chile´s legal team has to change its strategy based in the 1904 Treaty, which was specifically excluded from the discussion by the Court. In this regard is worth asking what were the arguments of the parties? And does Bolivia really have a good case? In the following lines I will try to address these two questions.

In April 2013, Bolivia instituted proceedings asking the Court to adjudge and declare that Chile has the obligation to negotiate an agreement that grants Bolivia a fully sovereign access to the Pacific Ocean. The legal basis for Bolivia’s claim is rooted in the previous negotiations in which the government of Santiago pledged itself formally and through its highest-level representatives to give a sovereign access to the sea back to Bolivia. The Bolivian Application seeks to found the jurisdiction of the Court on Article XXXI of the Pact of Bogotá.

In contrast, Chile responded that, pursuant to Article VI of the Pact of Bogotá, the Court lacks jurisdiction under Article XXXI to decide the dispute submitted by Bolivia. This is because Article VI restricts the jurisdiction of the Court for matters already settled by treaties in force in 1948, when the Pact of Bogotá was signed. According to Chile, the various declarations made by its governments in the past about Bolivia´s landlocked status “concern in substance the same matter settled in and governed by [the 1904] Treaty”, which was in force in 1948.

Bolivia’s response was that its claim does not have any relation to the 1904 Treaty but to the ensuing compromises and promises made by Chile to negotiate a sovereign access to the sea for Bolivia, which were assumed and formulated by Chile “independently” of that Treaty and also after 1948. Therefore, Bolivia argued that the matters in dispute are not settled and governed by the 1904 Treaty, within the meaning of Article VI of Pact of Bogotá. Consequently the Court has jurisdiction under Article XXXI thereof.

In its judgment, the Court defined the subject matter of the dispute as follows:

while it may be assumed that sovereign access to the Pacific Ocean is, in the end, Bolivia’s goal, a distinction must be drawn between that goal and the related but distinct dispute presented by the Application, namely, whether Chile has an obligation to negotiate Bolivia’s sovereign access to the sea and, if such an obligation exists, whether Chile has breached it. The Application does not ask the Court to adjudge and declare that Bolivia has a right to sovereign access. (Judgment at Para. 32).

And then it clarifies: “Even assuming arguendo that the Court were to find the existence of such an obligation, it would not be for the Court to predetermine the outcome of any negotiation that would take place in consequence” (Para. 33).

This last assertion was used politically by Chilean authorities to say that the Court has “cut” the Bolivian claim because now it cannot oblige the government of Santiago to cede territories. According to their official position, this was Bolivia’s true goal. However, Bolivia did not ask the Court to determine the outcome of eventual negotiations. What the Bolivian legal team has asked is that the Court remind Chile that it has an obligation to negotiate Bolivia’s access to the sea, nothing more but nothing less. The form in which these negotiations will be celebrated is one of the matters to be discussed in the further proceedings on the merits. However, the negotiation as such, forgive the repetition, will be about the Bolivian sovereign access to the sea.

For these reasons, and especially because of the many times that Chile effectively offered negotiations to solve this issue in the past, I believe that Bolivia has everything necessary to obtain a positive result. While it is true that the Court’s decision will not return Bolivia’s sovereign access to sea, at least it will pave the way for a negotiation that this time, after so many attempts, will be initiated by a mandatory and binding decision of the principal judicial organ of the United Nations.

Why Is the Lieber Prize Ageist?

by Kevin Jon Heller

Yesterday, my colleague Chris Borgen posted ASIL’s call for submissions for the 2016 Francis Lieber Prize, which is awarded annually to one monograph and one article “that the judges consider to be outstanding in the field of law and armed conflict.” I think it’s safe to say that the Lieber Prize is the most prestigious award of its kind.

But there’s a catch: you are not eligible for consideration if you are over 35. Which led Benjamin Davis to make the following comment:

For the record, the Lieber Prize criteria discriminates against persons like myself who at the ripe young age of 44 entered academia and was therefore nine years passed the upper limit in 2000. It particularly is galling when one realizes that Lieber WROTE his famous order at the age of 65.

If one wanted to correct this obvious and repugnant ageist requirement and one took the generous position that at 25 one could enter academia, then the criteria should suggest ten years maximum in academia. I still would be far passed the time-limit, but it would provide encouragement to those intrepid souls who decide later in life that being a legal academic is a noble calling for them and focusing on the laws of armed conflict is a wonderful arena in which to develop one’s research agenda.

I think Ben is absolutely right. The Lieber Prize’s hard age requirement obviously skews in favour of the kind of scholar who never spent considerable time outside of academia. Scholars who have had previous careers — whether in private practice, in government, in the military, or even working for organisations that do precisely the kind of law covered by the Prize, such as the ICRC — are simply out of luck if they worked for a number of years before becoming an academic.

If there was some sort of intellectual justification for limiting the Lieber Prize to academics under 35, the age limit might be okay. But, like Ben, I don’t see one. The most obvious rationale for some kind of limit is that ASIL wants to encourage and reward individuals who are newer to academia. But that rationale would suggest an eligibility requirement like the one that Ben suggests — a requirement that excludes submissions from individuals who have been in academia for a certain number of years, regardless of their chronological age. Some 34-year-olds have been in academia for nearly a decade! (I’m looking at you, Steve Vladeck.) And some 40-year-olds have been in academia only a few years. (Such as Chris Jenks, who was a JAG for many years before becoming a professor.) Yet only individuals in the latter category are excluded from the Lieber Prize — and they are excluded categorically.

Personally, I think Ben’s suggestion of 10 years from the time an individual entered academia is too long. I would still be eligible to submit with that limit! I would go with six years, like the Junior Faculty Forum for International Law. And also like the Junior Faculty Forum, I would permit the judges to wave the six-year requirement in exceptional circumstances — such as a woman or man who interrupted an academic career to take care of children.

What do you think, readers?

2016 Lieber Prize: Call for Submissions

by Chris Borgen

Professor Laurie Blank of The American Society of International Law’s Lieber Society on the Law of Armed Conflict has sent along the request for submissions for the 2016 Francis Lieber Prize. The prize is awarded to:

the authors of publications that the judges consider to be outstanding in the field of law and armed conflict. Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.

Here are the details

Criteria: Any work in the English language published during 2015 or whose publication is in proof at the time of submission may be nominated for this prize. Works that have already been considered for this prize may not be re-submitted. Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.

Age Limit: Competitors must be 35 years old or younger on 31 December 2015. Membership in the American Society of International Law is not required. Multi-authored works may be submitted if all the authors are eligible to enter the competition. Submissions from outside the United States are welcomed.

Submission: Submissions, including a letter or message of nomination, must be received by 9 January 2016. Three copies of books must be submitted. Electronic submission of articles is encouraged. Authors may submit their own work. All submissions must include contact information (e mail, fax, phone, address). The Prize Committee will acknowledge receipt of the submission by e mail.

Printed submissions must be sent to:

Professor Laurie Blank
Emory University School of Law
1301 Clifton Road
Atlanta, Georgia 30322

Electronic submissions must be sent to:

Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.

Prize: The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prize consists of a certificate of recognition and a year’s membership in the American Society of International Law. The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2016.

In 2015, the winners were:

Book prize:
— Gilles Giacca, “Economic, social, and cultural rights in armed conflict” (OUP:2014)

Essay prize:
— Tom Ruys, “The meaning of ‘force’ and the boundaries of the jus ad bellum: are ‘minimal’ uses of force excluded from UN Charter Article 2(4)?’, 108 AJIL 159 (2014).

Guest Post: The ICC intervenes in Georgia–When is a Peacekeeper a Peacekeeper?

by Patryk Labuda

[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.]

As Kevin noted last week, the ICC Prosecutor has officially requested authorization to proceed with an investigation into alleged crimes committed during the 2008 Russo-Georgian war. Anticipated by ICC observers for some time, the announcement has prompted speculation about the prospects of a full-blown investigation involving a P5 country (Russia), as well as the geopolitical ramifications of the ICC finally leaving Africa. In this post, I would like to focus on a discreet legal issue with ramifications that may turn out to be equally important in the long run: the Prosecutor’s charges relating to crimes against peacekeepers and why this matters for the future of peacekeeping operations.

In her submission to the Pre-Trial Chamber (PTC), the Prosecutor identifies two primary sets of war crimes and crimes against humanity that fall within her jurisdiction. In addition to the forcible displacement and persecution of ethnic Georgians, the Prosecutor plans to investigate “intentionally directing attacks against Georgian peacekeepers by South Ossetian forces; and against Russian peacekeepers by Georgian forces (Request PTC, para. 2).”

Under the ICC Statute, attacks on peacekeepers are criminalized directly as war crimes. The two relevant provisions are articles 8 (2) (b) (iii) and 8 (2) (e) (iii), which apply to international and non-international armed conflict respectively:

Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict (emphasis added).

If, as is expected, the Pre-Trial Chamber grants the request to open an investigation, the key question facing the Prosecutor will be whether the peacekeepers in the 2008 conflict were really just that – peacekeepers?

While this may seem like an unusual question, it should be emphasized that the facts are highly unusual, too. The Joint Peacekeeping Force (JPKF) in South Ossetia, which was established by the 1992 Sochi Agreement, comprised three battalions of 500 soldiers each provided by Russia, Georgia and North Ossetia. Though not formally a UN-mandated mission, it appears both the Security Council and the Organisation for Security and Cooperation in Europe recognized the JPFK as a peacekeeping operation (para. 149). However, the key point is that, unlike UN-mandated peacekeeping, the peacekeepers in South Ossetia were nationals of two of the three parties to the 2008 conflict: Russians and Georgians (South Ossetians were not allowed on the premises of the JPKF). In other words, the ICC Prosecutor’s charges relate to attacks against Russian and Georgian troops – deployed as part of a peacekeeping mission – in the context of an armed conflict where Russian, Georgian and South Ossetian troops fought against one another.

Why does this matter? Although it appears that peacekeeping involving parties to a conflict is not prohibited (e.g. the UN does not appear to have an explicit policy against it, even if peacekeeper nationality has, in the past, been a contentious issue in UN operations), the composition of the JPKF in South Ossetia raises important questions about the application of international law to peacekeeping, and in particular the applicability of international humanitarian law and international criminal law to the attacks that the ICC Prosecutor plans to investigate. Irrespective of whether such peacekeeping is allowed ‘on paper’, I argue that the unusual composition of the JPFK will likely negate some protections that peacekeepers normally enjoy.

The key legal issue that is likely to come before the ICC is who is entitled to peacekeeper status under international law? Although there is no international convention on peacekeeping (the UN Charter is silent on the matter as well), the rules applicable to peacekeeping are derived from over half a century of military practice, and it is generally accepted that three core principles apply: 1) consent of the parties, 2) impartiality and 3) non-use of force beyond self-defence. While there is much debate about the scope of these three principles, especially in recent peace operations, for the purpose of the Georgia investigation the important question will be whether the impartiality criterion was met. Continue Reading…

Weekly News Wrap: Monday, October 19, 2015

by Jessica Dorsey

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


Middle East and Northern Africa






Events and Announcements: October 18, 2015

by Jessica Dorsey

Calls for Papers/Abstracts:

  • Call for Papers: Society of International Economic Law and University of Luxembourg, Fifth PEPA/SIEL Conference. SIEL’s Postgraduate and Early Professionals/Academics Network (PEPA/SIEL) and the Research Unit in Law of the University of Luxembourg are pleased to announce that the fifth PEPA/SIEL Conference will take place on 14-15 April 2016 in Luxembourg. We invite graduate students (enrolled in Master or PhD programmes) and early professionals/academics (generally within five years of graduating) to submit papers on any IEL topic. One or more senior practitioners and academics will comment on each paper after its presentation, followed by a general discussion. More information, including the process for submissions by 16 November 2015, can be found here.


  • On October 21 (from 10am-12pm) the Open Society Justice Initiative is co-sponsoring a side-event at the UNGA where the Special Rapporteur on Torture, Juan Mendez, will present his new report on the extraterritorial application of the prohibition of torture. The presentation will be followed by a panel discussion. It’s a strong report that deals with a broad range of very timely topics – including extraterritorial safeguards against torture, accountability for extraterritorial acts of torture, non-refoulement, and rules pertaining to the prohibition in times of armed conflict. A flyer is attached with additional information about the report and the side-event. The flyer is also available here.
  • On the occasion of the publication of the second edition of Helen Duffy’s book ”The War on Terror’ and the Framework of International Law’ the T.M.C. Asser Instituut, in cooperation with the International Centre for Counter-Terrorism – The Hague and the International Humanitarian and Criminal Law Platform, proudly present a high-level panel discussion on Thursday 22 October, entitled: ‘Accountability in the war on terror?’ Speakers are: Norman Farrell, Prosecutor of the Special Tribunal for Lebanon, Larissa van den Herik, Professor of International Law at the Grotius Centre for International Legal Studies of Leiden University and Helen Duffy, Director of ‘Human Rights in Practice’ and Professor Gieskes Chair of International Human Rights and Humanitarian Law at the Grotius Centre for International Legal Studies of Leiden University. The panel discussion will be moderated by Christophe Paulussen, Senior Researcher at the T.M.C. Asser Instituut, Research Fellow at the International Centre for Counter-Terrorism – The Hague and Coordinator of the International Humanitarian and Criminal Law Platform. The event will be followed by a reception, kindly offered by the International Centre for Counter-Terrorism – The Hague. For catering purposes, we would like to ask you to register for this event by sending an e-mail with subject “SCL panel discussion” and your name and affiliation to conferencemanager [at] asser [dot] nl.
  • Developing International Law at the Bar – A Growing Competition Among International Courts and Tribunals: On 5 November 2015 at 3:00 PM, The Law and Practice of International Courts and Tribunals (Brill/Nijhoff) will offer its second Seminar in a series devoted to contemporary developments in international judicial practice. The Seminar aims at discussing some salient aspects of a growing competition among ICTs in the development of international law. The program is organized by Pierre Bodeau-Livinec (University Paris 8) and Chiara Giorgetti (Richmond Law School) and is co-sponsored by European Affairs committee of the NYCBA. Panelists include Chester Brown (University of Sidney), Mathias Forteau (University of Paris Ouest-Nanterre), Makane Mbengue (University of Geneva), Eduardo Valencia-Ospina (Editor-in-Chief of The Law and Practice of International Courts and Tribunals), August Reinisch (University of Vienna), Attila Tanzi (University of Bologna) and Catherine Tinker (Seton Hall University, Chair of the European Affairs Committee of the NYC Bar Association). More information and to enroll here.
  • University of Luxembourg conference on the Settlement of Tax Disputes under International Law. On 12-13 November 2015, the Research Unit in Law at the University of Luxembourg, with the support of the Fonds National de la Recherche Luxembourg, is holding a conference on the settlement of tax disputes under international law. The conference will examine the settlement of tax disputes under international law with the aim of analysing taxation issues through the lens of international law and its dispute settlement procedures, bringing together academics and practitioners from tax and international law backgrounds in order to do so. Details about the conference and how to register can be found 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.

Reviewing Scott Shane’s New Book on Anwar Al-Awlaki

by Deborah Pearlstein

New York Times reporter Scott Shane recently published his book-length treatment of American Anwar Al-Awlaki – who he was, and what and why President Obama decided to order him targeted by drone strike in 2011. Not sure the book adds much for those who follow these things closely to what is already known from Shane’s own reporting and other sources, but it is certainly timely reading in light of the latest leaked administration documents regarding its process for drone strikes. My review of Shane’s book in the Washington Post is here. The leaked papers, published by The Intercept, are here.

Why “Following International Law” Won’t Necessary Solve the South China Sea Conflict Over Freedom of Navigation

by Julian Ku

As Chris notes below, it seems like there will be a showdown soon between the U.S. and China in the South China Sea over the right of freedom of navigation set out in the UN Convention on the Law of the Sea and customary international law. It is tempting to see this as a problem of one side ignoring international law, and the other trying to uphold it.  But the U.S. and China have a fundamentally different understanding of what international law requires and allows under the principle of “freedom of navigation”. So getting all sides  to “follow” international law is not necessarily going to solve the dispute here.

The U.S. definition of freedom of navigation means all ships (including warships) are allowed to traverse both the 200 nm exclusive economic zones (EEZ) and the 12 nm territorial seas without obtaining the permission of the coastal state.  In the 200 nm EEZ, the U.S. believes that military ships may conduct any activity, including surveillance of the coastal state (e.g. “spying”).  Within 12 nm, the U.S. believes military ships must abide by the rules of “innocent passage” which precludes any overt military-related activity.

The Chinese definition of freedom of navigation is quite different.  Essentially, the Chinese argue that military ships should have to follow rules of innocent passage even in the 200 nm EEZ, and that military ships must get permission to enter the 12 nm territorial sea, even if those ships are planning to make an innocent passage.

Why does this difference in the definition of freedom of navigation matter?  Because it allows both sides to say that they are abiding by the rules for freedom of navigation set forth in UNCLOS, while disagreeing dramatically on what each side is allowed to do.  From the U.S. perspective, its navy should be allowed to enter the 12 nm territorial seas around China’s “islands” as long as they abide by the rules of innocent passage.  But the Chinese will say that freedom of navigation doesn’t permit this activity.

Most states agree with the U.S. definition of freedom of navigation.  But some states (including neighboring South China Sea coastal states) do agree with the Chinese view on the EEZ (like Malaysia) and others follow the Chinese view on the 12 nm territorial sea (like Vietnam). So although I think the U.S. reading of UNCLOS is the correct one, the Chinese are not alone in their interpretation.  And as this editorial from China’s leading state-run English language paper indicates, the Chinese are going to emphasize this difference in legal interpretations in their response.

Of all foreign military activities in the special economic zones (especially those of China and the U.S.), the innocent passage of warships through territorial seas, have fueled the majority of clashes and disagreements, as the United Nations Convention on the Law of the Sea fails to provide explicit regulations on such activities.

To be sure, the Chinese may be shifting their own views since the Chinese Navy recently entered U.S. territorial seas on an “innocent passage”. But the official Chinese position still would require the U.S. to get permission before entering its 12 nm territorial seas.

One more note:  because several of China’s “artificial islands” are not islands but underwater features like shoals or reefs, the U.S. position ought to be that there is no “innocent passage” requirement for its naval ships even after entering within 12 nm miles.  Because China’s artificial island do not generate a 12 nm territorial sea, the U.S. should make clear it is NOT following the rules of innocent passage.

In any event, although international law is important, it cannot by itself resolve this festering US-China dispute until both sides agree on what international law actually requires.

Freedom of Navigation Operations and the South China Sea

by Chris Borgen

The BBC charts the latest back-and-forth between China, the U.S. over the Spratly Islands and, especially, navigation in the South China Sea. Much of the discussion of this issue has focused on the increased pace of China construction and land reclamation on series of islands and reefs, changing the “facts on the ground” to bolster its territorial and maritime claims. Other countries have also built on various islands and reefs, positioning for their own claims. But the scope of China’s activities had brought the issue back to the forefront.

The current flurry has been about the U.S.’s reaction and, in particular, whether the U.S. will use of “freedom of navigation” (FON) operations (previously discussed by Julian, here) in the midst of all this activity in the Spratlys.

According to the BBC, Hua Chunying, a spokesperson for China’s Foreign Ministry stated:

“We will never allow any country to violate China’s territorial waters and airspace in the Spratly Islands, in the name of protecting freedom of navigation and overflight.”

On Tuesday, US Defence Secretary Ash Carter expressed “strong concerns” over island-building, and defended Washington’s plans.

“Make no mistake, the United States will fly, sail and operate wherever international law allows, as we do around the world, and the South China Sea will not be an exception,” he said at a news conference with the Australian foreign and defence ministers.

“We will do that in the time and places of our choosing,” he added, according to Reuters news agency.

According to the U.S. Department of State, the U.S. has undertaken such freedom of navigation (FON) operations since 1983 to “exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the Law of the Sea (LOS) Convention.” This is a topic where one can see the U.S. refer explicitly and repeatedly to international law:

The FON Program since 1979 has highlighted the navigation provisions of the LOS Convention to further the recognition of the vital national need to protect maritime rights throughout the world. The FON Program operates on a triple track, involving not only diplomatic representations and operational assertions by U.S. military units, but also bilateral and multilateral consultations with other governments in an effort to promote maritime stability and consistency with international law, stressing the need for and obligation of all States to adhere to the customary international law rules and practices reflected in the LOS Convention.

Emphases added.

A year-by-year summary of Freedom of Navigation operations by the U.S. can be found on the U.S. Department of Defense website, here.

However, the BBC notes that:

The US might have mounted sea patrols in this area, but not for several years, our analyst says – and not since China began its massive building programme in the South China Sea.

A US military plane that flew near one of the islands in May was warned off – eight times.

The US now has to decide whether to send in its ships and risk confrontation, or back down and look weak, our analyst says.

How the situation evolves from here will depend in part on the reactions of other states that border the South China Sea or use its sea lanes.  Stay tuned…

Guest Post: Air Strikes in Syria–Questions Surrounding the Necessity and Proportionality Requirements in the Exercise of Self-Defense

by Sina Etezazian

[Sina Etezazian serves as regional coordinator for the Digest of State Practice at the Journal on the Use of Force and International Law. He is also a PhD candidate at Monash Law School, where he is researching the necessity and proportionality criteria for the exercise of self-defense in international law.]

The lawfulness of conducting air strikes against the Islamic State Group (IS) in Syria is attracting increasing scrutiny from legal commentators. This scrutiny has intensified markedly (for example, see here, here, here, and here) since the UK’s targeting of alleged IS terrorists using drones and France’s joining the air campaign to bomb IS positions in Syrian territory. The extent to which air strikes would meet the necessity and proportionality requirements in the exercise of the right to self-defense under Article 51, however, remains less explored.

This post does not aim to consider the issue of the permissibility of engaging in unilateral forcible measures against unattributable attacks by private groups. However, even assuming that the lawful exercise of the right of self-defense extends to action against irregular forces, it can be argued that the air campaign in Syria goes beyond the necessity and proportionality conditions of defensive force.

First, the operation in Syria would appear to act in direct contradiction to the legal obligations attached to the “no choice of means” criterion of necessity. As I have explained before (see here and here), “no choice of means” — or, as most legal writers have referred to it, the “last resort” — as a condition inherent in the necessity requirement, denotes that self-defense is available to the victim state only when measures not involving force are unlikely to be practicable and effective to cease an actual armed attack (or prevent an impending attack, supposing that one accepts the idea of anticipatory self-defense). This implies that if measures other than force are likely to be practicable in redressing the wrong caused by the attacker, the victim state may not be entitled to use force under Article 51.

An exploration of state practice since the establishment of the UN would suggest that, in several instances (see here, here, and here), the claimant state highlighted its alleged failed attempts to convince the territorial state to suppress the activities of the non-state entities acting from that state, so as to prove that its self-defense action against those entities had satisfied the necessary requirement. Therefore, whatever the legal merit of the actions themselves (and regardless of whether, in practice, the responding states authentically used force outside an inter-state context), adherence to the “no choice of means” requirement can be distilled from state practice during the UN-era.

Conversely, most states carrying out air strikes in Syria did not even consider cooperating with the Syrian government in suppressing the activities of IS militants in Syria. The United States, for example, explicitly rejected a request for such cooperation, maintaining that it is “not looking for the approval of the Syrian regime.” In its letter to the Security, Canada likewise stated that “in expanding our airstrikes into Syria, the government has now decided we will not seek the express consent of the Syrian government.” The approach taken by US and Canadian officials appears to be in clear violation of the necessity condition of defensive action, mainly because the US and Canada have not provided an explanation of why cooperating with the Syrian government seems impracticable to settle the problem. The use of force in Syria, accordingly, hardly seems compatible with the concept of “no choice of means” that states have shared during the UN-era.

As for proportionality, the air campaign in Syria may be seen to have contravened the geographical requirement inherent in proportionate self-defense. Under the contemporary jus ad bellum regime, defensive action must conform to three criteria to determine its proportionality with regard to a primary objective of halting the attack: effects on civilians, the geographical scope and temporal duration of the conflict (Judith Gardam, Necessity, Proportionality and the Use of Force by States (2004) 155–187). The second of these criteria, usually called the geographical criterion of proportionality, means that forcible self-defensive measures must be limited to the region of the attack that they are designed to repel. In other words, any coercive action that occurs far from the initial attack is likely to constitute a disproportionate use of force (Christopher Greenwood, ‘Self-Defence and the Conduct of International Armed Conflicts’ in International Law at a Time of Perplexity, Yoram Dinstein (ed) (1989) 276–278).

Observance of the geographical criterion of proportionality has been required by both state practice and ICJ jurisprudence (see examples from state practice in Gardam, Necessity, Proportionality and the Use of Force by States, 162–167). For example, in the Armed Activities case, the Court refuted Uganda’s claim of self-defense against attacks from the private groups based in the Eastern Democratic Republic of Congo (DRC). More concretely, Uganda asserted that a string of attacks that had been mounted by those private groups across its border had justified Uganda’s right to use force in self-defense. However, Uganda had taken airports and towns in the DRC, which were located “many hundred kilometers” from Uganda’s border. This extensive forcible response gave rise to the majority judgment observing that the measures undertaken by Ugandan forces were disproportionate to those alleged cross-border attacks (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Rep 223, 223).

However, some commentators have occasionally argued for the diminishing role of the geographical criterion in the assessment of proportionate self-defense, particularly when the situation encompasses the use of force against non-state actors. Thus, in the words of Tams and Devaney:

[R]ecent practice suggests that geographical factors that may be considered relevant to the proportionality of inter-state self-defence are of limited relevance: hence states hit by terrorist attacks on their home soil have asserted a right to respond against terrorists at their base – and even where their conduct was not generally accepted, the fact that the self-defence operation had carried the fight against terrorism into far-away, remote countries seemed to be a factor of limited relevance (Christian J Tams and James G Devaney, ‘Applying Necessity and Proportionality to Anti-Terrorist Self Defence’ (2012) Israel Law Review 94, 104).

Continue Reading…

Guest Post: Do All Roads Lead to Rome? Why Ukraine Resorts to Declarations Rather than Ratification of the Rome Statute

by Aaron Matta and Tom Buitelaar

[Dr. Aaron Matta is a Senior Researcher at The Hague Institute for Global Justice, Rule of Law Program. Tom Buitelaar is a Researcher with the Global Governance Program at the Institute. With many thanks to Thomas Koerner, Rod Rastan, Dan Saxon and Eamon Aloyo for their helpful feedback on earlier drafts of this commentary. The views expressed here do not represent the views of the Hague Institute for Global Justice. ]

Ukraine is engulfed in a complex and bloody conflict that has cost nearly 8,000 lives and generated over 1.4 million internally displaced persons. The conflict has erupted in different areas of the country and in different forms, from civil unrest and revolution to alleged Russian aggression and illegal annexation of Crimea. The MH17 incident is of particular importance now due to the recent release of the Dutch Safety Board Report on the causes of the crash, which concluded that the plane was hit by a BUK-missile, ruling out other options. Moreover, the UNSC resolution 2166 stipulates that those directly or indirectly responsible for the downing of MH17 must be held accountable and brought to justice. But how can the International Community respond to these challenges and bring those responsible of international crimes and serious human rights violations to justice?

In this regard, on September 8, Ukrainian Foreign Minister Klimkin lodged a second ad hoc Declaration (.pdf) under article 12(3) of the Rome Statute accepting the jurisdiction of the International Criminal Court (ICC) for crimes committed on Ukraine’s territory since 20 February 2014. This provision can be used by non-state parties to the Rome Statute – Ukraine signed the Statute, but has not ratified it. This declaration was preceded by the declaration lodged (.pdf) on 17 April 2014, which triggered the Court’s jurisdiction over crimes committed during the events on Maidan square between November 2013 and February 2014, and prompted Prosecutor Ms. Fatou Bensouda to open a preliminary investigation.

With the second declaration, the Ukrainian government postpones the ratification of the Rome Statute, choosing to involve the ICC in a more ad-hoc manner. This approach can be explained by looking both at the legal and political obstacles to ratification.

The main legal obstacle for ratification arises from certain incompatibilities (.pdf) between the Rome Statute and the Ukrainian Constitution. In July 2001, the Ukrainian Constitutional Court (Case N.1-35/2001 [.pdf]) ruled that “some of the Rome Statute provisions were in conflict with the Constitution of Ukraine”. Article 124 of the Ukrainian Constitution states that the administration of justice is the exclusive competence of the national courts and that judicial functions cannot be delegated to other bodies or officials. Therefore, Ukraine would have to amend its constitution in order to ratify the Rome Statute – as required by Article 9 of the Ukrainian Constitution (.pdf). While for example some countries like Brazil ratified the Rome Statute first on 2002 and amended their constitution later in 2004 – as provided by Article 5(3) of the Brazilian Constitution (.pdf) – this option is not viable for Ukraine.

An interesting question is whether the declarations would also be incompatible with the Ukrainian Constitution. On the one hand, this issue would not affect the legal obligation of a state to a Treaty, pursuant to article 27 of the Vienna Convention on the Law of Treaties (.pdf) (which states that “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”), or the ICC’s competence per se. On the other hand, this might have legal or practical unintended consequences in the domestic legal order if the Court’s potential decisions, warrants of arrest or requests for judicial cooperation cannot be given effect, or if their lawfulness is challenged at the domestic level.

Besides the legal obstacles there are also several political challenges to ratification. First of all, rule of law reforms—such as those required by ratification of the Statute and the implementation of its cooperation requirements—have shown to be a serious challenge in post-Soviet states. Because of these difficulties, ratification of the Rome Statute was not necessarily seen as a political priority. Secondly, until 2014, there had been no imminent threat of serious civil or international military conflict. Most importantly, armed conflict with potential Russian ‘involvement’ was unthinkable due to the historical, cultural and economic ties between the two countries. Moreover, Ukraine’s government is being increasingly overwhelmed with numerous urgent challenges, particularly since the conflict erupted. These include securing financial resources to avoid economic collapse and fighting corruption as a prerequisite for obtaining international financial aid. Currently, the main reform priorities have been tax reform, anti-corruption, and decentralization (the latter as part of the Minsk Agreements package). Therefore, amendments to Article 124 of the Constitution are only foreseen for the second phase of reforms planned for next year.

In addition to these legal and political challenges Continue Reading…

OTP Formally Requests First Non-African Investigation

by Kevin Jon Heller

Fatou Bensouda has just formally asked the Pre-Trial Chamber to authorise an investigation into war crimes and crimes against humanity committed by South Ossetian and Georgian forces between 1 July 2008 and 10 October 2008. Here are the relevant paragraphs from the ICC’s press release:

The Situation in Georgia has been under preliminary examination by the Office of the Prosecutor since August 2008, when armed clashes between the breakaway region of South Ossetia and Georgia degenerated into an armed conflict, which also involved the Russian Federation.

The Prosecutor finds a reasonable basis to believe that war crimes and crimes against humanity were committed during in the context of the armed conflict. This includes alleged crimes committed in the context of a campaign to expel ethnic Georgians from South Ossetia as well as attacks on peacekeepers by Georgian forces, on the one hand, and South Ossetian forces, on the other.

The information available to the Office of the Prosecutor indicates that between 51 and 113 ethnic Georgian civilians were killed as part of a forcible displacement campaign conducted by South Ossetia’s de facto authorities, with the possible participation of members of the Russian armed forces. Between 13,400 and 18,500 ethnic Georgians were forcibly displaced and more than 5,000 dwellings belonging to ethnic Georgians were reportedly destroyed as part of this campaign. The Office of the Prosecutor alleges, based on the information in its possession, that these offences, together with attendant crimes of looting and destruction of civilian property, were committed on a large scale as part of a plan and in furtherance of a policy to expel ethnic Georgians from the territory in South Ossetia. As a result, the Prosecutor estimates that the ethnic Georgian population living in the conflict zone was reduced by at least 75 per cent.

The Prosecutor also finds a reasonable basis to believe that both South Ossetian and Georgian armed forces committed the war crime of attacking personnel or objects involved in a peacekeeping mission.  Georgian peacekeepers were reportedly heavily shelled from South Ossetian positions, killing two Georgian peacekeepers and injuring five more.  In a separate incident, ten Russian peacekeepers were reportedly killed and 30 wounded as a result of the attack against their facility by Georgian forces. The Russian peacekeeping force’s base was reportedly destroyed, including a medical facility.

The OTP’s formal request is 162 pages long, not counting the numerous annexes, so I won’t have substantive thoughts on the investigation for a while. I will just note that the request, as summarised by the Court’s media office, generally tracks the OTP’s 2014 Preliminary Examination Report, with one notable exception: the Georgian attack on the Russian peacekeepers. Given that the 2014 Report concluded that information about the attack was “inconclusive,” the OTP’s preliminary examination must have uncovered enough additional evidence of Georgian responsibility that Bensouda felt comfortable including it in her request for a formal investigation.

Assuming that the PTC approves Bensouda’s request, which seems highly likely, Georgia will obviously become the first non-African situation to be formally investigated by the ICC. The timing of the request is, of course, more than a little propitious, given that the ANC has been threatening to withdraw South Africa from the ICC because of its supposed anti-African bias. I doubt that the mere act of opening a non-African investigation will mollify the ANC and other African leaders; I imagine nothing short of actual charges against a suspect will have much impact. But the Georgia investigation is clearly a step in the right direction.

More soon!

PS: It’s worth noting that the Georgia request is almost four times as long as the request the OTP filed in 2009 with regard to Kenya — and that isn’t counting the numerous annexes in the Georgia request. It would seem that the OTP has learned its lesson from the Kenya fiasco. Recall that, with regard to Kenya, the PTC immediately asked the OTP to provide it with a great deal of supporting information. That kind of information appears to already be included in the Georgia request, which is smart prosecutorial practice.

Weekly News Wrap: Monday, October 12, 2015

by Jessica Dorsey

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


Middle East and Northern Africa






Events and Announcements: October 12, 2015

by Jessica Dorsey


  • A student writing competition is being organized in conjunction with the annual symposium convened by the Center for the Study of Dispute Resolution at the University of Missouri School of Law.  This year’s symposium is convened by Prof. Carli Conklin and is entitled “Beyond the FAA: Arbitration Procedure, Practice, and Policy in Historical Perspective.”  The symposium features Professor James Oldham, the St. Thomas More Professor of Law and Legal History at Georgetown University Law Center, as keynote speaker as well as expert panelists from England and the United States. The competition is sponsored by the Center for the Study of Dispute Resolution and offers a $500 prize to the competition winner.  The author of the winning paper may be invited to publish the winning submission in the symposium issue of the Journal of Dispute Resolution, subject to the agreement of both the editors of the Journal of Dispute Resolution and the winning author. Submissions should bear some relationship to the history of dispute or conflict resolution, broadly defined.  Topics may therefore consider issues relating to the historic development of international or domestic negotiation, mediation, conciliation and/or arbitration, among other things.  There is no requirement that papers discuss U.S. law.  Papers must be received no later than 11:59 p.m., Central time, on Monday, November 9, 2015. Further information on the writing competition is available on the symposium website.

Calls for Papers/Abstracts:

  • The 2016 ESIL Research Forum will take place on Thursday 21 and Friday 22 April 2016 at Koç University Law School and the Center for Global Public Law in Istanbul. The Research Forum is a scholarly conference which promotes engagement with research in progress by members of the Society. The 2016 Research Forum calls for papers addressing the theme of the making of international law, including through interdisciplinary research and methods, and through historical, theoretical or empirical approaches. The Call for Papers is now open. The deadline for submissions is 1 November 2015.
  • The 12th ESIL Annual Conference will be held in Riga on Thursday 8 – Saturday 10 September 2016. ESIL Interest Group events will be organised, as usual, on the day before the conference, on Wednesday 7 September. The conference is hosted by the Riga Graduate School of Law in cooperation with the Latvian Constitutional Court. The theme of the conference is: How International Law Works in Times of Crisis. The Call for Papers and the Call for Posters are now open. The deadline for submissions is 31 January 2016.


  • Global Law at Reading (GLAR) is delighted to unveil the programme for the inaugural Ghandhi Research Seminar Series. The series showcases the work of experts in global law fields. It is convened by Professor James A. Green, and is named in honour of Professor Sandy Ghandhi, who taught at the School of Law from 1978 to 2013. Anyone is welcome to attend these seminars, and attendance is free. However, visitors coming from outside the University of Reading are asked to please send advance notification that they will be attending:
  • The International Network of Genocide Scholars (INoGS) will hold its next conference in Jerusalem in June 2016. Here are links to the Call for Papers and conference website.

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

France Fails to Adopt “Unwilling or Unable” in Syria

by Kevin Jon Heller

Last month, Ashley Deeks claimed that France appeared “to be prepared to invoke the ‘unwilling or unable’ concept in the Syria context.” France did indeed attacks ISIS targets in Syria. And it reported those strikes to the Secretary-General of the UN, claiming self-defence under Art. 51 of the UN Charter as a rationale for violating Syria’s sovereignty. But then something funny happened on the way to the Forum: France did not invoke the “unwilling or unable” theory. Here is its Art. 51 letter:


Looks like the “broad consensus” in favour of “unwilling or unable” now stands at three states — the US, UK, and Australia — not four.

Hat-Tip: Thierry Randretsa, author of the blog Dommages civils.

Final Compendium of High-Level Review of UN Sanctions Proposes Reforms to System

by Kristen Boon

The Compendium of the 2014 UN High Level Review of Sanctions, including its 150 recommendations, is now available here on the UN Website.  The Document number is A/69/941 – S/2015/432.  The review, sponsored by Australia, Finland, Germany, Greece and Sweden, took place from May –  November 2014, and involved a series of meetings between Member States, the Secretariat as well as other UN bodies.

The starting point of the review was to look at the 16 regimes in place, and discuss how to improve the existing sanctions system from there.  The compendium has many useful recommendations and observations.  Here are a few:

  • It emphasizes the move towards using sanctions to address trafficking in wildlife products and natural resources;
  • It highlights the importance of using sanctions to address transnational threats and new technologies; (Recommendation 146)
  • It recommends using sanctions to better address existing and emerging threats on, for example, incitement to genocide, sexual violence in conflict, and gross violations of women’s rights; (Recommendation 132)
  • It advocates the establishment of a Trust Fund for sanctions implementation assistance, a proposal originating from Jordan. (Recommendation 126).  While not going so far as to reference Article 50 of the UN Charter (special economic problems), together with recommendations 123 – 125 on assessments for assistance, it charts a future path towards better coordination and provision of assistance.
  • The Compendium also proposes better coordination between the ICC and the UN, highlighting the absence of clear processes in the past, and the possibility of future synergies.  For example, the compendium makes the very sensible recommendation of automatically listing individuals (where a relevant sanctions regime applies) after an arrest warrant has been issues by the Pre-Trial Chamber.  (Recommendation 100).

The compendium is a useful and current document, that gives a current state-of-play of UN sanctions while adding onto the Interlaken, Bonn and Stockholm and Greek initiatives of prior years.  Nonetheless, it must be noted that an attempt to pass a Security Council resolution last November on some of these same issues failed.   See the Security Council report assessment here of a draft resolution that was debated but never brought to a vote.   Attempts to strengthen capacity building, assistance and implementation for UN sanctions remain controversial – whether because of ongoing hesitation about the robustness of the tool, or because of opposition to strengthening the Secretariat’s policy making capacities.

What impact this document will have remains to be seen, but as the race heats up for the next Secretary General, one hopes that the recommendations will form part of the campaign, and further that future Secretary Generals will play a greater role in sanctions implementation, by for example, including substantive reports on sanctions in their briefings to the Security Council.  (See recommendation 50).

Guest Post: Colombia–How Much Justice Can the Peace Take?

by Kai Ambos

[Kai Ambos is Professor for Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the Georg August Universität Göttingen, Judge at the District Court in Göttingen,  Director of the Centro de Estudios de Derecho Penal y Procesal Latinoamericano (CEDPAL) of Göttingen University and has worked in Colombia in various capacities over the last 25 years.] 

On 23 September, the Colombian President Juan Manuel Santos achieved a major breakthrough in the peace negotiations with Latin America’s oldest guerilla movement, the “Revolutionary Armed Forces of Colombia People’s Army” (FARC). After over three years of negotiations and reaching agreement in principle on other, less controversial matters (land reform, political participation and the drugs problem), the question of how to deal with the crimes committed by the parties to the conflict – especially by the FARC – remained the last and greatest obstacle to the successful conclusion of negotiations. Now, the FARC – much to the astonishment of many observers – have accepted the creation of a “Special Jurisdiction for Peace”. Essentially, this special jurisdiction’s aim is to ascertain the criminal accountability of all parties involved in the armed conflict with a dual procedural model: those actors who submit to the new jurisdiction of their own volition and confess to their acts can expect a maximum – so-called alternative – sanction of up to eight years, while those who refuse to cooperate will be subject to ordinary criminal proceedings ending in a prison sentence of up to 20 years. All concerned must contribute actively to the ascertainment of the truth, to the reparation of victims, and to guaranteeing the non-repetition of the crimes committed. A truth commission will – at long last – be established. The FARC must lay down their weapons at the latest 60 days after the signing of final accord, which is planned for 23 March 2016. The agreement makes a distinction between (political) crimes for which amnesty is possible and the core crimes under international criminal law, namely genocide, crimes against humanity, and serious war crimes, for which there is no amnesty. In return for submitting to the abovementioned special jurisdiction, the FARC is granted the status of a political movement.

While the agreement marks a key step towards achieving lasting peace in Colombia, it also raises some difficult legal and political questions that may – apart from the short period until 23 March 2016 – hinder its implementation. As far as the composition of the abovementioned special jurisdiction is concerned, the accord in principle follows the model of the so-called “hybrid” tribunals created in other transition processes, albeit with three “Salas previas” (kinds of pre-trial chambers) – responsible for fact-finding, amnesties and pardons and the determination of the legal situation of the respective responsible individual – and the more important “Tribunal para la Paz” (Tribunal for Peace), which will conduct the main trials. The structure is not set out clearly in the public part of the agreement. It is clear, however, that the judges will mainly be Colombians – insiders speak of 20 – , with a small number of foreigners (three to five). Here, the key question is: how will these judges be selected? Besides their professional suitability, the main concern will be their neutrality towards and independence from the parties to the conflict, which will make the selection of the Colombian judges quite a challenge, given the fact that the Colombian judiciary is highly politicised. The case is similar for the selection of the members of the abovementioned truth commission.

As regards the ratione materiae jurisdiction, any amnesty is excluded not only for the core crimes mentioned above (albeit with the qualifier “serious” for war crimes), but also for individual acts such as forced expulsion, forced disappearance, torture and – very broadly – “sexual violence”. The explicit prohibition of amnesty was welcomed by the Chief Prosecutor of the International Criminal Court (ICC), but it goes beyond the crimes contained in the Court’s Statute and thus beyond the prohibition of amnesty recognised under international law. Otherwise, as broad an amnesty as possible – pursuant to Art. 6(5) Additional Protocol II to the Geneva Conventions – will be granted for political and related offences (“delitos políticos y conexos”). The opposition, led by former President Álvaro Uribe and the Prosecutor General (Procurador General) Ordóñez Maldonado, have already criticised in this respect that the crimes of drug trafficking and kidnapping could be granted amnesty as “related offences” according to this approach. While this is indeed the case, it neither is prohibited under international law nor under Colombian law. On the contrary, it is in line with the special political offence tradition enshrined in Colombia’s legal history and Constitution. Indeed, the Colombian Supreme Court has explicitly acknowledged that the offence of drug trafficking is not excluded from the transitional justice regime (Judgment of 30 April 2014, Sala de Casación Penal, case no. 42534) and, furthermore, that it is linked to the offence of rebellion if it serves to finance the armed struggle (Concepto de extradición CP117-2015 of 24 September 2015).

As to the ratione personae jurisdiction, in principle all parties to the conflict, including the members of the state security forces, will be subjected to the special jurisdiction, but the prosecution will need to concentrate upon the main persons responsible – in accordance with international practice. This is not stated explicitly in the agreement, but can be deduced from its reference to “the most serious and representative acts” and “cases”.

The most difficult and controversial issue is that of the enforcement of the abovementioned sanctions. In their public statements, the FARC leaders have repeatedly made it clear that they would not accept a usual prison sentence in a normal detention facility; however, they appear to have yielded in this regard also. Strictly speaking, the agreement sets out a threefold differentiation, whereby any sanction must include “an element of restriction of liberty”: those who admit their acts will receive the abovementioned alternative punishment of between 5 and 8 years, with the type of enforcement depending on whether the individual concerned has admitted to their acts immediately or only “later” (“tardía”). which needs to be determined more precisely. In the first case, the punishment is enforced under “special conditions”, and in the second under “ordinary conditions”. These “ordinary conditions” will also be applied to those who refuse to cooperate and can thus expect a prison sentence of up to 20 years. Accordingly, it seems clear that only those who confess at once can expect special treatment, that is, to serve their sentence outside a normal detention facility. The Colombian legislator will have to determine the exact details of these special conditions, with international (criminal) law leaving a broad margin of appreciation.

As it stands now, there are no objections to the agreement from the point of view of international law, and the ICC will also be happy with it. Of course, the much more detailed basic document which contains 75 points has not been published so far. In any case, on the domestic front the main concern will be less with international law and more with the Colombian population’s political acceptance of the agreement. Ultimately, this can only be achieved by a referendum.

The author is grateful to Margaret Hiley, M.A., Ph.D., for her assistance in the preparation of this English version.

Update to 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. This is a follow-up post to the open letter we published 24 September.]

The open letter from international lawyers to the EU, EU states and the European Publics public concerning the existing international legal obligations to those seeking international protection has attracted signatures from over 900 international lawyers after it has been reopened for signature. The signatories include leading experts in international refugee law, Professors Deborah Anker (University of Harvard); Chaloka Beyani (LSE); Vincent Chetail (Graduate Institute of International and Development Studies);  Bhupinder Chimni (Jawaharlal Nehru University); Michelle Foster (University of Melbourne); Geoff Gilbert (University of Essex, Editor in Chief, International Journal of Refugee Law); Guy Goodwin-Gill (Emeritus Fellow, All Souls College, Emeritus Professor of International Refugee Law, University of Oxford); Elspeth Guild, (Radboud University Nijmegen); James Hathaway (Professor of Law and Director, Program in Refugee and Asylum Law, University of Michigan & Distinguished Visiting Professor of International Refugee Law, University of Amsterdam); Jane McAdam (University of New South Wales (UNSW)); Boldizsár Nagy, (Central European University & Eötvös Loránd University, Budapest); Gregor Noll (University of Lund); Thomas Spijkerboer (Professor of Migration Law, VU Amsterdam) and many others.

On 30th September, the office of the President of the European Commission, Mr Jean-Claude Juncker, responded to the Open Letter explaining that the Member of the Commission responsible for Migration, Home Affairs and Citizenship, Mr Dimitris Avramopoulos ‘is looking into the points you have raised and will respond to you rapidly.’

In summary, the Open Letter urges 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.

Read the entire Open Letter here (.pdf).

Under the New “Investor-State Arbitration” in the Trans Pacific Partnership, Claimants May Have to Pay Attorneys’ Fees

by Julian Ku

The U.S. and eleven other Pacific Rim countries announced they have reached agreement on the Trans Pacific Partnership trade agreement, which will more tightly integrate 40% of the world’s economy into a single regional bloc. There will be a huge fight in Congress over the TPP by progressive Democrats in the U.S. Even presidential candidate Hillary Clinton has already announced her opposition (sort of).

One area of ire for critics will certainly be the TPP’s provisions for investor-state dispute resolution (See Sen. Elizabeth Warren’s attack on this area here).  The TPP negotiators seem to have recognized that those provisions needed modifications and they seem to have focused on providing more transparency in arbitral proceedings.  But I was particularly struck by the U.S. Trade Representative’s official summary of the agreement’s provisions on investor state arbitration below.

The chapter also provides for neutral and transparent international arbitration of investment disputes, with strong safeguards to prevent abusive and frivolous claims and ensure the right of governments to regulate in the public interest, including on health, safety, and environmental protection.  The procedural safeguards include:  transparent arbitral proceedings, amicus curiae submissions, non-disputing Party submissions; expedited review of frivolous claims and possible award of attorneys’ fees; review procedure for an interim award; binding joint interpretations by TPP Parties; time limits on bringing a claim; and rules to prevent a claimant pursuing the same claim in parallel proceedings.

I find this provision on attorneys’ fees fascinating. I presume this will allow state-respondents to actually recover attorneys’ fees from investor-claimants if those claims were somehow deemed frivolous.  I didn’t realize frivolous claims were actually a huge problem in investor-state dispute resolution.  I am not aware of data showing lots of weak claims being filed with state-respondents just settling to avoid the costs of arbitration.

I am also not aware of any other kind of international dispute resolution, public or private, which has this kind of arrangement. It is worth the wait to see the details, but it is sign the TPP negotiators are getting ready to take fire on this area from folks like Sen. Warren, and have added a little armor ahead of time.

Crossing Lines Is Back! (And Actually Better Than Ever)

by Kevin Jon Heller

I stopped watching Crossing Lines about five episodes into Season 2 – about the time the ICC started investigating a series of home invasions. (Yes, really.) I had no intention of watching again, but I decided to give the show one more try at the urging of my friend Mel O’Brien. So a couple of nights ago I watched the double episode that kicks off Season 3, which features an almost entirely new cast, including the excellent Elizabeth Mitchell and Goran Višnjić (who is Croatian, a nice touch).

To be sure, the show still has its fair share of minor annoyances. Our protagonists remain, inanely, the “cross-border team.” The magic hologram machine has yet to make an appearance, but the team does have a virtual chalkboard that would be at home in Minority Report. Donald Sutherland’s barrister robe has these weird little stubs that make it look like it came from an S&M dungeon. The South African judge is a little too gleeful when he pronounces the defendant guilty (which annoyed Mel) – and why are there approximately 10 other judges sitting around him?

There are still substantive problems, as well. The double episode revolves around the team trying to establish the reliability of documents before they are excluded by the judges – which, of course, would never happen at the ICC, given its civil-law-oriented “free proof” evidentiary regime. The judges would simply admit the documents and then take reliability issues into account when determining their probative value. And the defendant appears to be formally charged with “ethnic cleansing” – which is, of course, a non-technical term. The correct charge would have been, given the facts of the case, forcible transfer.

That said, I have to admit the double episode was pretty darn good. The defendant was a Congolese warlord accused of massacring an entire village in the eastern part of the DRC. An actual international crime – and one that didn’t even cross a border! Better, the warlord was acting on behalf of an American corporation that needed to ensure the continued supply of coltan, a rare metal necessary for its telecommunications products. The village was sitting on a particular valuable deposit of the metal, so the warlord killed its inhabitants to open the area to mining.

That is a quite sophisticated story line – and one that is very realistic. It was also particularly enjoyable to see the ICC bring the sleazy American CEO to justice – in a US court, another nice touch. (Although the substantive international criminal lawyer in me would have liked to see Donald Sutherland litigate the jurisdictional issues involved in prosecuting a national of a non-State-Party for aiding and abetting an international crime that was committed on the territory of a State Party.) If only the real ICC would go after a multinational corporation!

All in all, a job well done by the show’s writers. We’ll see if the progress lasts…

Weekly News Wrap: Monday, October 5, 2015

by Jessica Dorsey

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


Middle East and Northern Africa






Events and Announcements: October 4, 2015

by Jessica Dorsey


  • iCourts (Center of Excellence for International Courts), The Faculty of Law, University of Copenhagen, Denmark is seeking applications for two or three positions as postdoc within the research area of one of the Faculty’s research centres – iCourts (the Center of Excellence for International Courts). The positions are available from 1st February 2016, and for duration of two (2) years. Start date is negotiable under special circumstances.
  • A new blog has joined us in the ether, Rights! a free, open online platform to read, write, discuss, share and act on human rights and democratisation: On one single platform, Rights! gathers together think pieces, comments from the field, case studies, interviews, critiques and provocations from established and emerging human rights professionals from all regions of the world. Find more here.

Calls for Papers/Abstracts:

  • The Leuven Centre for Global Governance Studies is organizing an international conference on global public goods, global commons and democracy (22-23 February 2016, Leuven, Belgium). The conference will explore the economic, legal and political underpinnings, premises and implications of global public goods and global commons for global governance institutions and international organizations, especially in relationship with the debate on their (non)-democratic nature. The aim is to assess, from an interdisciplinary perspective, how the respective discourses surrounding global public goods and global commons diverge in their relation to global democracy, and, in particular, to the advancement of democracy in global governance and international organizations. Abstracts (no longer than 500 words) should be submitted by the 8th of October 2015. More information can be found here.
  • The Russian-Armenian (Slavonic) University (RAU) in cooperation with the Delegation of the International Committee of the Red Cross (ICRC) in Armenia announce the 8th Yerevan International Conference for Young Researchers on International Humanitarian Law, which will be held from 19 November to 21 November 2015 in Yerevan, Republic of Armenia and will be held under the theme “IHL Development: New Agenda and Reality Check”. The Yerevan Conference is a unique international platform for the discussion of contemporary issues and perspectives related to IHL development among the young scholars. Over the years the conference hosted a number of renowned international experts in the field of IHL, international criminal law and constitutional law thus providing a unique possibility to the young participants not only to be heard by the established professionals and experts, but also to engage with them in the open discussion over their opinions and views. Finally, the Conference provides the unique cultural experience of visiting always beautiful and hospitable Armenia and meeting old and new friends from all over the world. More information about the Conference can be found here. Young researchers in the field of IHL under the age of 35 are invited to take part in the Conference participants pre-selection process. In order to apply the applicants should submit a research paper strictly within the scope of the announced conference topics presented in the Call for papers found here. The deadline for submitting the application package is October 18, 2015.
  • The Polish Yearbook of International Law (PYIL) is currently seeking articles for its next volume (XXXV), which will be published in June 2016. Authors are invited to submit complete unpublished papers in areas connected with public and private international law, including European law. Although it is not a formal condition for acceptance, we are specifically interested in articles that address issues in international and European law relating to Central and Eastern Europe. Authors from the region are also strongly encouraged to submit their works. Submissions should not exceed 15,000 words (including footnotes) but in exceptional cases we may also accept longer works. We assess manuscripts on a rolling basis and will consider requests for expedited review in case of a pending acceptance for publication from another journal. All details about submission procedure and required formatting are available at the PYIL’s webpage. Please send manuscripts to pyil [at] inp [dot] pan [dot] pl. The deadline for submissions is 31 January 2016.


  • International Conference: “International Humanitarian Law and Modern Warfare” Rome, 23-24 October 2015. The relationship between warfare and international humanitarian law is an ever-evolving one. New combat methods, novel technologies and the evolution of weaponry pose critical challenges to international humanitarian law; at the same time, the high task of protecting the principles of humanity during wars requires an evolution and an adaptation of the law. International humanitarian law is “law in motion”. Carabinieri are involved in a number of international missions and operations, so we have decided to organize this conference, because we consider it as an important objective to contribute to fostering the study and understanding of such important issues, in the interest of members of the military and society at large. The conference in Rome will last two days and the debate will spread across four panels: one will deal with new weaponry and the law; one will focus on the relationship between human rights and humanitarian law in the context of modern warfare; another will cover recent judicial developments in international humanitarian law and the last one will address the evolving relationship between the general principles of international humanitarian law and the features of modern warfare. Each panel will be composed of four/five experts, and it will be moderated by a young scholar in the field. The deadline for registration is today! For more details, please click here.
  • The American Branch of the International Law Association (ABILA) and the International Law Students Association (ILSA) present: International Law Weekend 2015This year’s conference will be held in New York City on November 57, 2015. The theme of International Law Weekend (ILW) 2015 is Global Problems, Legal Solutions: Challenges for Contemporary International Lawyers. ILW 2015 will explore the many roles that international law plays in addressing global challenges. The conference will offer engaging panels on current problems and innovative solutions in both public and private international law. Register Now for ILW 2015. ILW begins Thursday evening, November 5, with a distinguished opening panel at the New York City Bar. The opening panel, “The Rule of Law and the Post 2015 Development Agenda,” will feature dialogue with senior UN officials and representatives of member states on efforts to advance the UN Rule of Law Initiative and to achieve the Sustainable Development Goals (SDGs) over the next fifteen years.  A reception will follow and is open to all conference attendees. The conference continues Friday, November 6 and Saturday, November 7 at Fordham University School of Law. Friday’s activities feature a keynote address by Miguel de Serpa Soares, United Nations Under-Secretary-General for Legal Affairs and United Nations Legal Counsel. View the ILW 2015 Program (subject to change).

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.

ASIL’s Research Forum

by Duncan Hollis

I wanted to flag for interested readers the upcoming ASIL Research Forum in Washington, D.C., on October 23-24, 2015  I’ve been to a couple of the previous iterations and can attest that it’s a great way to catch up on some new scholarship and to hear a mix of new and old voices in the field.  This year’s event looks to continue that tradition.  Here’s how ASIL’s Executive Director Mark Agrast pitches the event:

This year’s Forum offers an exceptionally rich and diverse program, including expert-led discussions of 70 innovative papers, a luncheon program featuring remarks by former ICJ Judge and ASIL Honorary President Tom Buergenthal; and a ticketed dinner discussion of “Dispute Settlement with Iran: From the Hostage Crisis to the Nuclear Accord” with key negotiators from the U.S. Department of State.

The Forum will also include events specifically designed for students and new professionals. Our “International Law Career Panel and Speed Mentoring Event” will feature practitioners from a variety of international law fields and a networking reception, and two leading law librarians will lead a session on “International Law Research Strategies.”

This will be an outstanding opportunity for lawyers interested in the latest developments in international law to connect with thought leaders in their areas of interest.

If interested, you can see the full program and submit your registration here.  I’ll be commenting on a few treaty papers on Saturday, so feel free to say hello if you see me there.


Defending the FSA Against Russia — the Jus ad Bellum Perspective

by Kevin Jon Heller

It’s been widely reported over the past few days that Russia has been bombing the Free Syrian Army under the pretext of joining the fight against ISIS. That development spurred an interesting post at Lawfare by Bobby Chesney about whether Art. II of the Constitution — the Commander-in-Chief Clause — would permit the US to defend the FSA, which it has been equipping and training. As Bobby points out, rather skeptically I think, the USG seems to believe it would (internal block quote omitted):

[I]t is an interesting legal question, especially in light of recent testimony from Under Secretary of Defense for Policy Wormuth to the effect that Article II could be invoked to permit U.S. forces to defend DOD-trained Syrian forces in the event of an attack on them by Assad regime forces.  Wormuth’s position was repeated by an unnamed “senior administration official” a few days ago.

Given this position, is there any reason to think the answer would be different if we are talking instead about Russian forces attacking those same DOD-trained units?  I see no reason why that would be the case, though the policy stakes obviously are immensely different.  Next, is there anything different if instead we are talking about CIA-trained, rather than DOD-trained, Syrian forces.  Again, I can’t see why this would alter the analysis; under the apparent theory of the Obama administration, the government already possesses whatever legal authority would be needed to use force to prevent Russian jets from striking U.S.-sponsored Syrian units.

I have no doubt Bobby’s right — as I said on Twitter, he has forgotten more about Art. II than I ever knew. I just want to point out that invoking Art. II to defend the FSA against Russia would be more than a little perverse given the status of such an attack under international law — the jus ad bellum, in particular.

Let’s start with Russia. Although its attacks on the FSA might have violated the jus in bello — I certainly wouldn’t be surprised — they did not violate the UN Charter’s prohibition on the use of force with regard to Syria, because they were conducted with the Syrian government’s consent. Nor is there any plausible argument for viewing the Russian actions as an armed attack on the US — whatever the Art. II argument about the US’s “national interest” (see this skeptical Jack Goldsmith post), an attack on the FSA is not a use of force against the US’s “territorial integrity or political independence.”

What this means, of course, is that the US could not invoke self-defense under Art. 51 to justify using force against Russia to defend the FSA — say, by destroying a Russian bomber. Not only would such a use of force create an international armed conflict between the US and Russia, it would itself qualify as an armed attack under Art. 2(4), thereby permitting Russia to use force against the US in self-defense. Russia would simply be responding to an unlawful act of aggression by the US.

(To be sure, the same analysis would apply to any US use of force against Syria in defense of the FSA. But it would obviously be a much bigger deal for the US to commit an aggressive act against a major Western power — one that is also a permanent member of the Security Council.)

Again, I have no idea how these jus ad bellum considerations affect the Art. II analysis. Knowing the US, the fact that attacking Russia would qualify as an unlawful act of aggression might be irrelevant. The optics of using Art. II to justify such an attack would nevertheless be deeply troubling, to say the least.

The U.S. Embargo on Cuba May Be a Bad Idea, But It Doesn’t Violate the UN Charter

by Julian Ku

The UN General Assembly is set to vote once again (for the 24th consecutive year) on a Cuba-sponsored resolution condemning the United States’ economic, commercial, and financial embargo against Cuba.  This resolution will probably get near majority support, and perhaps even unanimous support.  Indeed, there are rumors that the U.S. government itself may abstain from voting against the resolution, which is certainly odd and perhaps unprecedented.  Cuban President Raul Castro’s speech at the UN reiterated his demand that the U.S. end its embargo and sanctions on Cuba.

I don’t want to get into the merits of whether the U.S. should have an embargo on Cuba here, but I am baffled by the implication that the embargo violates international law.  The GA resolution doesn’t quite condemn the US embargo as illegal, but it comes close.  From last year‘s resolution:

2. Reiterates its call upon all States to refrain from promulgating and applying laws and measures of the kind referred to in the preamble to the present resolution, in conformity with their obligations under the Charter of the United Nations and international law, which, inter alia, reaffirm the freedom of trade and navigation;

Now Cuba has long called the U.S. embargo a “blockade”, which would be illegal under international law.  But despite some economic penalties on third-party countries trading with Cuba (largely never applied and always suspended), the U.S. does not actually prevent, militarily or otherwise, other countries from trading with Cuba.

I am heartened to see that the GA thinks the UN Charter reaffirms the freedom of trade and navigation, but I am not aware of any authority for the proposition that a country’s choice not to trade with another country is a violation of the Charter’s non-existent textual references to the freedom of trade and navigation.

Here’s the problem with U.S. (and other nations’) acquiescence with the Cuba resolution’s language.  It strongly suggests that a country cannot impose a unilateral embargo on another country without somehow violating its UN Charter obligations.  This can’t possibly be something the EU or Canada can or should sign onto as a matter of principle.  And it is even odder for the U.S. administration to agree to this idea, when its main policy for dealing with foreign aggression (e.g. Russia in Ukraine) is the unilateral imposition of sanctions.

So I think it would be perfectly appropriate (and indeed necessary) for the U.S. and other countries that impose unilateral sanctions to oppose this resolution on principle.  They won’t of course, but they should.