Archive for
December, 2015

UGA Invites Applications for New Chair in International Law

by Peter Spiro

This from friend of OJ Harlan Cohen. The chair is in honor of Gabe Wilner, a longtime professor of international law at UGA.

The University of Georgia School of Law invites applications for a fully endowed professorship in international law beginning August of 2016. Applicants should be able to join the faculty at the rank of full professor. They should have a J.D. from an accredited university or its foreign equivalent, superior academic credentials and demonstrated excellence in scholarship and teaching. Applications received by February 1, 2016 are assured of consideration. All interested persons should submit a curriculum vitae, including scholarly publications, with a letter of interest at http://facultyjobs.uga.edu/postings/527

The University of Georgia is an Equal Opportunity/Affirmative Action employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, disability, sexual orientation, gender identity or protected veteran status.

The Washington Post Needs to Correct Its Syria Article

by Kevin Jon Heller

Karen De Young and Missy Ryan have a long article today in the Washington Post about internal USG debates over the rules of engagement in Syria. It’s a very interesting and generally excellent article, but it contain one major error:

International law allows for civilian casualties, even intentional ones, providing an action is within the bounds of distinction and proportionality, a somewhat subjective judgment that the military importance of the target is worth it.

No, international law does not allow intentional civilian casualties. Intentionally attacking civilians violates IHL’s principle of distinction and is a quintessential war crime. The sentence should read “international law allows for civilian casualties, even ones known to be certain, providing an action is within the bounds of proportionality…”

I have tweeted the authors of the article. I will update this post if they issue a correction.

Climate Change and the Syrian Civil War

by Chris Borgen

Scientific American has published an article by John Wendle on how climate change has spurred the conflict in Syria. Wendle writes:

Climatologists say Syria is a grim preview of what could be in store for the larger Middle East, the Mediterranean and other parts of the world. The drought, they maintain, was exacerbated by climate change. The Fertile Crescent—the birthplace of agriculture some 12,000 years ago—is drying out. Syria’s drought has destroyed crops, killed livestock and displaced as many as 1.5 million Syrian farmers. In the process, it touched off the social turmoil that burst into civil war, according to a study published in March in Proceedings of the National Academy of Sciences USA. A dozen farmers and former business owners like Ali with whom I recently spoke at camps for Syrian refugees say that’s exactly what happened.

He tells a story of environmental degradation, ill-conceived agricultural and water-management policies, and their effects:

“The war and the drought, they are the same thing,” says Mustafa Abdul Hamid, a 30-year-old farmer from Azaz, near Aleppo… “The start of the revolution was water and land,” Hamid says.

But the story Wendle writes is about more than Syria:

The refugee crisis will eventually subside, [Richard Seager,a professor at Columbia University’s Lamont–Doherty Earth Observatory] assumes, and the war in Syria will run its course. Nevertheless, he says, the region’s droughts will be more frequent and more severe for the foreseeable future. After closely studying dozens of climate models he and Kelley and their colleagues are convinced that continued greenhouse gas emissions will widen the Hadley cell, the band of air that envelops Earth’s tropics in a way that could further desiccate the lands of the eastern Mediterranean.

These past months many people have written about the Syrian civil war. Many have written about climate change. Wendle’s article considers both the perspectives of farmers who have become refugees and of scientists studying climate change. It is not only describes where we are, but how we got here, and what may be yet to come.

Highly recommended.

Weekly News Wrap: Monday, December 21, 2015

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

  • Belgian police have searched a home in the centre of Brussels and made two arrests in connection with the investigation into last month’s attacks in Paris, federal prosecutors said.
  • Legal experts at Germany’s lower house of parliament have serious doubts about the legality of introducing a cap on refugee numbers, according to a document obtained by German broadcaster ARD.
  • The head of the European Union’s border agency has said the large number of refugees entering Europe poses a security risk, with civil war making it harder to check the authenticity of Syrian passports.

Americas

  • As the United States negotiated this year’s nuclear pact with Iran, the State Department quietly agreed to spare the Gulf sultanate of Oman from an embarrassing public rebuke over its human rights record, rewarding a close Arab ally that helped broker the historic deal.
  • An air strike by the US-led coalition countering the Islamic State of Iraq and the Levant (ISIL) group may have led to the death of Iraqi soldiers, the US military said in a statement.

Oceania

UN/World

UN Recognises Jewish Holiday for the First Time

by Kevin Jon Heller

From CNN:

For the first time in its 70-year history, the United Nations has officially recognized a Jewish holiday.

U.N. employees who observe the Jewish faith will have the day off and no official meetings will take place on this date from now on, according to the Israeli mission to the organization.

Yom Kippur, or the Day of Atonement, considered the most important Jewish religious holiday, will join two of the world’s other monotheistic religions in having one of its high holidays observed by the world body.

Christmas Day, Good Friday, Eid al-Fitr and Eid al-Adha have all been recognized by the United Nations as official religious holidays.

This is an excellent decision on the UN’s part — its recognition of multiple Christian and Muslim holidays but not even one Jewish holiday has never made sense. And in a perfect world, the decision would be greeted with approval by individuals of all political stripes.

But this is Israel, of course, where there is no such thing as apolitical. On the “pro” Israel side, there are factually-challenged editorials like this one, in which the authors argue that recognising a Jewish holiday is somehow necessary to compensate for the UN’s supposed anti-Israel bias:

But over time, Israel has been a target for exceptional mistreatment at the United Nations. A pluralistic democracy facing extremists sworn to its destruction, Israel is routinely condemned by the body’s Human Rights Council, more than any other member state. Israel’s assailants at the United Nations often assert that they respect Jews and Judaism — and reserve their shrill disdain only for Israeli policies and Zionism. But the demonization of Israel calls their motives into question.

And on the “anti” Israel side, there are tweets like this one, bizarrely claiming that the UN is somehow honouring Israel by recognising Yom Kippur and that doing so will somehow increase anti-Semitism:

I expect better, particularly from the “antis.” Those of us who support progressive change in Israel have argued for years that there is nothing remotely anti-Semitic about criticising Israel’s policies and actions. And there is increasing evidence that eliding the difference between the two in order to insulate Israel from criticism has lost much of its rhetorical power. Tweets like the one above risk undermining all the good work we have done.

It’s really pretty simple: the UN is not honouring Israel by recognising Yom Kippur. It is recognising Judaism, one of the world’s major religions, as it has recognised others. And it’s about time it did.

Weaponized Archaeology and Sovereignty Disputes

by Chris Borgen

Underwater archaeologist Peter B. Campbell has a very interesting opinion piece in the New York Times about how archaeological claims are being used as political weapons in sovereignty disputes. He explains:

For decades, global powers have been engaged in a race to exploit lucrative marine resources, from oil to fisheries to control of strategic waterways. But they have faced a challenge: How can a country claim new territory despite the restrictions of the United Nations Convention on the Law of the Sea? It turns out that “historical ties” to resource-rich regions can conveniently help to contravene international law.

At issue is how archaeological research is being injected into political rhetoric on issues such as claims of sovereignty in the Arctic, in the South China Sea, and over Crimea.  Campbell writes:

China’s deputy minister of culture, Li Xiaojie, put it bluntly: “Marine archaeology is an exercise that demonstrates national sovereignty.”

Russia has followed suit. In 2011, when he was prime minister, Vladimir V. Putin made headlines by retrieving two ancient ceramic jars from a shipwreck at Phanagoria, the ancient Greek city that is 10 miles from Crimea. The media cast it as a publicity stunt, but alarm bells sounded within the archaeological community. Mr. Putin’s political allies had invested $3.5 billion in research at Phanagoria, a submerged harbor with Roman-era shipwrecks. And while Phanagoria was the site of Greek colonies, Russian nationalists have adopted its ancient kings as proto-Russians.

For now, these archaeological findings are being used more as ostensible support of political rhetoric rather than as evidence, in the technical legal sense, of title.  Claims of sovereignty are most clearly based on specific treaties, such as boundary delimitation treaties, or broader treaties that set-forth rules for resolving disputes, such as the UN Convention on the Law of the Sea (UNCLOS).

This does not deny that historical state practice can be a component in resolving a dispute. But there are standards for assessing such historical examples. As the Permanent Court of International Justice wrote in the Eastern Greenland case:

a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority.

Another circumstance which must be taken into account by any tribunal which has to adjudicate upon a claim to sovereignty over a particular territory, is the extent to which the sovereignty is also claimed by some other Power.

The ICJ quoted this language at paragraph 134 in its Pulau Ligitan and Pulau Sipadan judgment. In the case of maritime sovereignty claims, the goal would be to turn old shipwrecks into evidence of a continued display of authority, also known as effectivite. Anneliese Guess wrote that Canada’s then-Minister of the Environment said in 2008 that, in regards to the search for shipwrecks in the Northwest Passage:

 We certainly think by establishing a long-standing presence in the Arctic that can enhance issues of sovereignty … Look at the strait (the Northwest Passage) not far from where this ship is….We think every bit of weight we can put behind our case for sovereignty is important. Adding history to that equation can only enhance that case.

While historic state practice can be important, the ICJ’s discussion in Pulau Ligitan is a good example of how difficult it can to make such a claim of effectivite. In that case, the ICJ wrote that the facts must “leave no doubt as to their specific reference to the islands in dispute as such.” (para. 136) In Pulau Ligitan, the ICJ was unmoved by many of the examples of naval activities as proof of claims of sovereignty. How much harder still, with archaeological shipwrecks from a century ago, let alone from Roman times.

Modern international law, with its focus on treaty obligations and effective dates (that draw a bright line making some historical facts less important than others) is not likely to accord much weight to  shipwrecks such as those mentioned by Campbell. (And probably no weight to some of them.) Nonetheless, politicians spin and deploy these archaeological finds in their wars of words. But in the end, as Campbell reminds us,

…archaeology rarely fits simple narratives. In fact, archaeology often demonstrates our shared human past.

Why All the Hate Toward Breaking the Silence?

by Kevin Jon Heller

Although anything I post about Israel invariably elicits angry comments, nothing makes Israel’s supposed “defenders” more angry than my posts — see here and here — about Breaking the Silence, the Israeli organisation that collects testimonies by IDF soldiers about their experiences in combat. I’m obviously not the only one who has noticed the anger toward the organisation; Haggai Mattar recently published a superb article at +972 entitled simply, “Why Do So Many Israeli’s Hate Breaking the Silence?” Here are a couple of key paragraphs:

The first claim, which in my mind is the most important and critical accusation to refute, is that Breaking the Silence is not credible. The organization’s critics come up with all sorts of reasons why the organization isn’t credible, but there is one rebuttal that is awfully difficult to refute: In the 11 years that Breaking the Silence has collected and published testimonies, there has not been one instance in which a serious error — not to mention a fabrication — has been found in their published testimonies.

This is no insignificant point — it needs to be the heart of the debate. An organization that publishes hundreds of testimonies, which works with more than 1,000 soldiers, which has dealt with very complicated subject matter for 11 years — and not a single fabricated published testimony has ever been found. No court of law in any land can boast of such a record. And that is despite a number of attempts to fool the organization by giving them false testimonies. Their researchers and fact-checkers seem to have a perfect record of catching fabrications before publication.

That astounding success is the result of the massive investment Breaking the Silence makes in every single testimony. As the organization’s director of research has written here in the past, every testimony given by a soldier or former soldier is fact-checked, and the background of the incident or testimony is verified along with the identity of the testifier him or herself (and that they are not an aspiring politician looking to make a name for himself). The entire testimony is then corroborated with any available information — both from other soldiers’ testimonies and open source information. Some of the most hair-raising testimonies collected by Breaking the Silence were never published because the organization could not independently corroborate them. Just imagine if journalists who published attack pieces on the organization applied their strict verification standards to their own work and the malicious things that are said about it.

The article goes on to explain why Breaking the Silence does not give its testimonies to the IDF (they used to — and were investigated by the IDF for their trouble); why the testimonies are anonymous (similar reasons); why the organisation’s foreign funding is a non-issue (duh); and why it engages in events overseas (double duh).

The article ultimately concludes by answering the question asked by its title: because Breaking the Silence involves Israeli soldiers laying bare the ugly reality of how the IDF actually conducts its biennial destruction of Gaza — a necessary counterpoint to the endless Israeli propaganda about how the IDF is the “most moral army” in the world. The IDF regularly violates IHL and commits war crimes, and no number of self-interested secret briefings by the IDF about its targeting procedures can change that basic fact.

Selecting the New UN Secretary General

by Kristen Boon

With the end of Ban Ki-Moon’s term on the horizon, discussions about the next UN Secretary General, and more importantly how that person should be chosen, have moved front and center. A joint letter by the Presidents of the GA and Security Council was released on December 15, which sets forth a slightly new process.  It states:  “[The Presidents] will offer candidates opportunities for informal dialogues or meetings with the members of their respective bodies, while noting that any such interaction will be without prejudice to those who do not participate.”   These dialogues would take place before July 2016.

As the New York Times reported yesterday the letter remains vague on 2 points. First, on the question of whether a woman should lead the organization for the first time in 70 years it encourages nations to nominate “women as well as men” … second, on the tradition whereby each region gets a shot at the top job (with Eastern Europe being next in line) the language gave a nod to Russia’s concerns that “we note the regional diversity in the selection of previous secretaries general.”  Note the reference to past practices:  previous secretaries general.

Differences of opinion between the UK and Russia on the process held up the finalization of this letter for some time. The backstory can be found here.

This letter was issued pursuant to GA resolution 69/321 of 11 September 2015 provided a mandate for the GA on the issue, and “Requested the Presidents of the General Assembly and of the Security Council to start the process of soliciting candidates for the position of Secretary-General through a joint letter; to jointly circulate on an ongoing basis the names of individuals that have been submitted for consideration as candidates; and decided to conduct informal dialogues or meetings with candidates, without prejudice to any candidate who does not participate.”

To date, the campaign 1 for 7 billion reports 27 confirmed or prospective candidates including Angela Merkel, Helen Clark, and Danilo Turk. (Click on the candidates tab for more information).  General background on the efforts to change the appointments process is available here and here.

Specific Direction Again

by Jens David Ohlin

As already noted by others (including Kevin Heller, Marko Milanovic, and Dov Jacobs), the ICTY Appeals Chamber has overturned the acquittals of Jovica Stanisic and Franko Simatovic and remanded their case back to the Trial Chamber for the holding of a second trial. I want to discuss two issues pertaining to this decision.

The first pertains to the Specific Direction requirement for remote aiding and abetting of an organization that commits international crimes (yes, Specific Direction, again). There has been a long-standing dispute within the ICTY over aiding and abetting liability and whether Specific Direction is required by customary international law. The Perisic case said it was required, but then a differently composed Appeals Chamber disagreed in Sainovic. Now, finally, the Appeals Chamber has stated once again that the Specific Direction requirement is illusory (and hence the do-over for the Stanisic and Simatovic trial).

The unfortunate thing about the Appeals Chamber decision from Tuesday is how little we get in terms of actual legal rationale for the decision. Although the decision is almost 100 pages, only a few pages deal with specific direction. Of those, most are a summary of the positions of the parties in the case regarding specific direction. As for the court’s analysis, it is limited to one paragraph. And the argument in the paragraph itself does not touch the substance of the legal issue at all, and merely states that a previous appeals chamber had rejected the specific direction requirement, so the requirement does not apply. There is no analysis of how to understand precedent when there are contrary Appeals Chamber holdings, and even more distressingly no discussion of the underlying merits of the specific direction question, i.e. actual reasons why specific direction is not a part of the customary international law of aiding and abetting. All of this is left to the dissenting opinions. The court spends almost as much time and space devoted to the pressing legal issue of whether the defendant’s arguments should be rejected because the prosecution complained that the defendants failed to submit photocopies of the law review articles that they cited in their brief.

These facts highlight something that Heller, Milanovic, and Jacobs have already noted: The result was preordained from the beginning, given the composition of the Appeals Chamber and the number of judges who had previously (in the minority) opined that specific direction was not a formal requirement of customary international law. Incidentally, my complaint here is more about the lack of substantive engagement with the underlying issue, and not the result. Although I continue to think about the issue, I have been somewhat skeptical of specific direction for two reasons. First, the requirement seems to me a heightened mens rea standard akin to purpose, and not an actus reus requirement. Second, even if it is a heightened mens rea standard, it seems to me to be a house of cards built upon a strained reading of three words that were originally drafted, as dicta, in the original Tadic opinion, and which do not support the specific direction requirement. That being said, I do concede that there is evidence on both sides of the knowledge vs. purpose debate for aiding and betting under international law.

The second issue is that this case highlights, once again, a substantial defect in the ICTY’s procedural framework: the lack of an en banc hearing mechanism for the Appeals Chamber. Either all judges of the Appeals Chamber should hear all appeals (rather than use panels), or if panels are used, there should be an opportunity, in rare circumstances, to petition the Appeals Chamber for a second appeal to the entire Appeals Chamber sitting en banc. This would ensure that the decisions of the case are not based on the vagaries of the panel’s composition, which seems both arbitrary and unstable.  Future ad hoc tribunals (if there are any), should avoid this structural mechanism.

One final point: Stanisic and Simatovic attended the hearing in person, and therefore were detained and placed in custody in The Hague. I find this surprising (their voluntary appearance, not their detention). Anyone have any information on this decision? If they had stayed in Serbia, would they have voluntarily complied with the new arrest order or would they have run?  Would the government in Serbia have been willing and/or able to arrest them quickly if necessary?  Of course, these are all hypothetical and somewhat moot questions at this point.

A Note About Commenting on Opinio Juris

by Chris Borgen

This is a reminder to all readers and contributors concerning Opinio Juris’ policy regarding comments and posts. The “About Opinio Juris” page explains that:

We encourage civil and respectful dialogue among our bloggers, readers (who may post comments), and guest-bloggers. Our goal is to be both informative and thought-provoking by fostering vigorous intellectual engagement without vitriol. The marketplace of ideas is what we make of it.

[Emphasis added.]

Consequently, Opinio Juris maintains the right to edit or delete any comments that in our view does not meet the forum’s guidelines. This has been exceedingly rare.

One of the strengths of Opinio Juris is that our writers (both the masthead bloggers and our guest writers), commentors, and readers have a wide range of views. That breadth of perspective enriches the conversation. Please be respectful and constructive in your comments.

Guest Post: General Court of the European Union annuls the EU-Morocco Free Trade Agreement on Human Rights Grounds but Forgets Self-Determination

by Nadia Bernaz and Elvira Dominguez Redondo

[Dr Nadia Bernaz is Senior Lecturer in Law and Dr Elvira Dominguez Redondo is Associate Professor of International Law, both at Middlesex University, London UK.]

The 10th of December 2015, International Human Rights Day, was marked by the European Union General Court (EGC) quashing a free trade agreement between the European Union and Morocco, to the extent that it was to apply to the disputed territory of Western Sahara. The judgement is available in French only for the moment.

For the background of this case before UK courts, see the blog posts by David Hart here and Geraldo Vidigal here. The claim was brought by Frente Polisario (the internationally recognised interlocutor of the Saharawi people) against Council Decision 2012/497/UE of 8 March 2012. The original Council decision concerned an agreement between the EU and Morocco over reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products.

The judgement is important for two main reasons. First, the Court found the case admissible, taking a stance on the issue of the legal personality of Frente Polisario. Second, on the merits, the Court considered that while the Council had wide discretion with regard to the conclusion of agreements with third countries, it should have ensured that the EU was not at the risk of indirectly encouraging human rights violations or benefiting from such violations. The Council’s failure to do so, the Court stated, constituted a manifest error of appreciation which justifies quashing the decision. While the Court avoided basing its decision on the right to self-determination, (it did not evaluate the validity of agreements contrary to customary international law) the decision may nonetheless have important implications for the concern of business with human rights.

  1. Misunderstanding the difference between ‘recognition’ of legal status and respect for self-determination

In determining admissibility of the case the Court considered two specific points: (1) the capacity of the Frente Polisario to bring a claim (34-60); and (2) whether the disputed agreement directly and individually affected the Polisario Front.

Geraldo Vidigals in an earlier post claims that

As regards standing, the most striking aspect of the judgment is that the Court accepted the Frente’s entitlement to plead as a ‘moral person’, with the ‘necessary autonomy’ to challenge a decision of the EU legislator (paras. 50-53), without reference to the sui generis character of Frente Polisario or to the unique situation of Western Sahara. This would seem to open the door for other ‘autonomous entities’, even those with no claim to international legal personality, to challenge EU decisions under Article 263 TFEU.

It is unlikely that this case will ‘open the door to other autonomous entities’. The situation of Western Sahara is clear under current international law. It is true that the Court avoids the issue of the legal personality of Frente Polisario, by focusing on whether it is ‘directly affected’ and therefore can bring a claim before the Court (spec. paragraph 46, but also its recognition of UN interlocutor in para. 113). More disappointingly the Court limits its analysis to possible violations of human rights under the EU Charter of Fundamental Rights, with a cursory denial of the relevance of the right to self-determination (paragraphs 202, 203).

As cited in the case under review (paragraph 180) and the Air Transport Association of America and Others v Secretary of State for Energy and Climate Change, (Case C-366/10, 2011, paras 101-111) the European Union is bound by international law, including customary international law. However, to consider customary international law as a benchmark against which the lawfulness of EU acts can be reviewed, the rule should be binding on the European Union, with its content sufficiently precise.

Nonetheless, in this case, the Court fails to apply international law since it does not seem to understand the distinction between the –largely political- problem of recognition of a contested territory, and the respect for the right to self-determination. The Court was satisfied that an agreement with Morocco did not imply EU recognition of title to disputed areas of territory. While the Court makes appropriate references to the relevant UN General Assembly, Security Council resolutions and ICJ decision concerning the Western Sahara, even making explicit reference to obligations under article 73 of the UN Charter, it stops short of discussing self-determination of the Saharawi people under international law.

The Court cites a 2002 opinion of the UN Office of the Legal Counsel stating that signature of contracts concerning exploitation of resources by administering powers of non-self governing territories may have international legality, only if such resources are exploited for the benefit of people on these territories, in their name, and in consultation with them. In other words, in accordance with the principle of permanent sovereignty over natural resources, an integral part of self-determination.

The Saharawi claim is not akin to any ambiguous case of ‘contested territory’. The Western Sahara remains the only African territory on the list of the United Nations Decolonisation Committee. In our view, the kind of agreement under review directly impinges on the right to Saharawi self-determination. As recognised by the International Court of Justice, such a right creates obligations erga omnes (see the ICJ East Timor case, para 102 and Construction of a Wall, paras 88 and 156) and, has arguably acquired jus cogens status (see for instance, commentary here). Therefore, any treaty contravening the right to self-determination of the Saharawi should be considered void in accordance with article 53 of the Vienna Convention on the Law of Treaties.As a consequence other States would be required to refrain from recognising the illegal situation, avoid rendering aid or assistance to the wrongdoing state, and ensuring compliance with international law (all of this again, as contemplated in the ICJ Construction of a Wall case, para 159).

  1. Implications of the case for the field of business and human rights

While avoiding the issue of self-determination and broader international legal frameworks, the Court noted that the protection of fundamental rights of the people of a territory is important enough for the Council to examine it prior to approving an international agreement (para 227). According to the Court (para 228), the Council ought to have studied the implications of the agreement to ensure that it did not violate fundamental rights. The Council contended that having concluded an agreement with a third country, the EU could not become responsible for actions committed by that country, whether or not these actions constitute human rights violations (para 230).

This argument was accepted by the Court, but it highlighted that if the EU allowed the import of products made or sourced in ways that do not respect the local population’s fundamental rights, the EU would run the risk of indirectly encouraging such violations while benefitting from them (para 231). In essence, the Court concluded that the Council implicitly accepted the fact that Morocco’s entry into the agreement also applied to Western Sahara, despite its occupation of that territory remaining disputed under international law, leaving doubt about whether Morocco had the best interests of the Saharawi population in mind (see para. 235, and 244-246).

The judgement impacts situations where trade may violate human rights, raising implications for businesses that engage in such activities, by requiring EU institutions to consider the human rights implications of the EU’s external trade relations. This is in line with the EU Commission’s recognition of the 2011 UN Guiding Principles on Business and Human Rights as the “authoritative policy framework” for the EU. The Guiding Principles are addressed to states and corporations and outline their duties and responsibilities respectively. While these Principles do not apply to international organisations as such, the EU is planning to implement the Guiding Principles, having examined their implications for the EU’s external relations. This is backed by an April 2015 Communication on the EU’s new Action Plan on Human Rights and Democracy.

In conclusion, the EGC judgement is exceptional in terms of acknowledging the rights of the Saharawi people and their implications for third States and International Organisations within an adjudicatory judicial forum. However the EGC missed the opportunity of being the first international tribunal to date, to strike down a treaty on this basis.

 

The Arbitrariness of ICTY Jurisprudence (Specific-Direction Style)

by Kevin Jon Heller

Last week, the ICTY Appeals Chamber reversed the acquittals of Jovica Stanisic and Franko Simatovic, the former head and deputy head of the Serbian secret police under Milosevic, and ordered them retried. One of the two grounds for reversal was the Trial Chamber’s adoption of the specific-direction requirement; in the majority’s view (the vote was 3-2), specific direction is not an element of the actus reus of aiding and abetting.

As Marko Milanovic notes today at EJIL: Talk!, the outcome of the Stanisic & Simatovic appeal was completely predictable, because all three of the judges in the majority — Pocar, Liu, and Ramaroson — were also in the majority in Sainovic, in which the Appeals Chamber first rejected its earlier decision in Perisic to adopt the specific-direction requirement. Indeed, Liu and Ramaroson had each rejected the requirement in Perisic, as well.

But here is what’s interesting: Stanisic & Simatovic was completely predictable only because Judge Meron replaced two judges that were originally assigned to the appeal. The original five judges were Meron himself, Agius, Pocar, Liu, and Khan. Two of those judges were in the majority in Perisic (Meron and Agius) and two, as noted, were in the majority in Sainovic (Pocar and Liu). Assuming that none of those judges changed his mind about specific direction, the deciding vote would thus have been Khan, who had not yet expressed an opinion on the doctrine.

The calculus changed, however, when Meron made the first change — replacing himself with Judge Afande. That change meant that there was now only one judge in favour of specific direction (Agius), two judges against it (Pocar and Liu) and two judges who had not yet taken a position (Khan and Afande). That was still an unpredictable panel, even though it now leaned toward rejecting specific direction.

And then came Meron’s second change: replacing Judge Khan with Judge Ramaroson. That change meant the writing was on the wall, because the lineup now included one judge in favour of specific direction (Agius), three judges against it (Pocar, Liu, and Ramaroson), and one judge who had not taken a position (Afande). So it no longer mattered what Judge Afande thought.

There is no reason to believe anything untoward explains Meron’s changes; after all, he supported specific direction in Perisic. But it’s regrettable that it was so easy to predict the outcome of the Stanisic & Simatovic appeal simply by counting judges — as Marko notes, “this unfortunately exposes some of the arbitrariness inherent in judicial decision-making in borderline cases.” The substance of ICTY jurisprudence should not be decided by which judges the President decides to appoint to an Appellate Bench. (In this regard, the structure of the ICC’s judiciary is vastly superior. At the ICC, all five judges in the Appeals Division hear every appeal.)

My position on the specific-direction requirement is well known, so I won’t rehash it here. But I will end this post by noting that the only unknown quantity in Stanisic & Simatovic, Judge Afande, concluded in his dissent that specific direction is an inherent aspect of aiding and abetting — precisely what I’ve been arguing. Win the battle, lose the war…

China Launches Op-Ed Rebuttal to Philippines’ Arbitration Case

by Julian Ku

The UNCLOS Arbitral Tribunal formed to consider the dispute between the Philippines and China gave China until January 1 to file a response to the arguments made by the Philippines at its most recent merits hearing.  China had not showed up at any of the hearings, nor has it submitted any official written arguments to the Tribunal.   I don’t know if China will file any submissions (don’t hold your breath), but its state-run flagship The People’s Daily has launched an op-ed fusillade this week attacking the Philippines. Perhaps, this is China’s response to the arguments made at the arbitral hearing.

The first editorial, “Grandstanding Cannot Cover Up Illegal Moves”, is focused on vilifying the Philippines’ for bringing this arbitration, and the remarks of its foreign minister Albert F. del Rosario. The criticism is mostly non-legal, accusing Mr. del Rosario of bad faith, speaking untruths, and being an all-around bad guy.  But the oped does contain the germ of a legal argument justifying China’s defiance of the UNCLOS tribunal:

State sovereignty is a core principle in contemporary international law. No force is above a sovereign state. No country, organization or individual could expect China to stand by and allow its interests to be harmed. Here is a piece of advice for people like Mr. del Rosario: Don’t misread the situation. The Chinese government and people are adamant about safeguarding China’s rights and interests in the South China Sea. All calculating moves against that would end up in failure.

The second editorial, China’s Sovereignty over the South China Sea Islands Brooks No Denial, offers more of a legal and factual argument.  Interestingly, the editorial relies heavily on the legal force of the 1943 Cairo Declaration and the 1945 Potsdam Declaration as the basis for China’s South China Sea claims over the disputed Spratly/Nansha Islands.  The theory here is that the Spratly/Nansha islands belonged to China, and that Japan forcibly occupied them during WWII.  Cairo and Potsdam required Japan to return all “stolen” territories, ergo, the South China Sea islands go back to China.

The Philippines (apparently) argued at the merits hearing that the Nansha Islands were “terra nullius” and were not included in the “stolen” territories that Japan had to return to China.  Moreover, the Philippines argued that the Cairo and Potsdam Declarations were not legally binding.

China responds with a factual claim (China has always had sovereignty over the islands) as well as legal claim (the Cairo and Potsdam Declarations are legally binding). This latter argument is not precisely accurate, although it is true that Japan promised to comply with Potsdam in its surrender.  But none of this changes the fact that neither Cairo nor Potsdam say anything about the Spratlys/Nansha specifically, and seem a weak legal basis for China’s claims to those islands.

In any event, the editorial is largely rhetorical rather than legal. It concludes by rallying the Chinese people against mysterious international forces threatening their sovereignty:

[T]he determination of the Chinese people to safeguard its territorial integrity is as firm as a rock. Only the Chinese people have the final say when it comes to China’s territory. Any attempt to negate China’s sovereignty, rights and interests through a so-called “arbitration award” will be nothing but wishful thinking, just like flowers in a mirror and reflection of the moon in water. By going back on its own words and confusing the concepts for the purpose of territorial expansion, the Philippines will only end up bringing disgrace on itself.

Gotta love the metaphors, although I doubt very much the Arbitral Tribunal will be in any way moved by them.

Reflections on the Paris Conference

by Daniel Bodansky

[Dan Bodansky is the Foundation Professor of Law and Faculty Co-Director of the Center for Law and Global Affairs at the Sandra Day O’Connor College of Law at Arizona State University. He was in Paris last week for the climate change negotiations. This is his seventh and final post regarding the conference. Professor Bodansky has consulted for the government of Switzerland and the Center for Climate and Energy Solutions (C2ES) in relation to the Paris Summit. However, he is writing in his personal capacity and the views expressed do not necessarily represent those of the Swiss government or C2ES.]

The dust has barely settled on the Paris conference, but already it has prompted an avalanche of comment – and there will be much more written, of course, in the coming weeks and months. For a summary of the conference results, see the report by C2ES. The following are a few more personal reflections.

Copenparis

Invidious comparisons of the Copenhagen and Paris conferences have been a staple of commentary. Copenhagen was a disaster and Paris a triumph. That is the usual line.

But, in many ways, Paris merely formalizes and extends the bottom-up paradigm to which the 2009 Copenhagen Conference gave birth. Indeed, most of the key elements of the Paris Agreement can be found in the Copenhagen Accord:

  • The goal of holding global warming below 2° C.
  • The system of national pledges to reduce emissions (referred to in the Paris Agreement as “nationally determined contributions”).
  • The non-binding character of these contributions, and the reliance on transparency rather than legal enforcement to promote accountability and effectiveness.
  • The shift away from the binary approach to differentiation that was at the heart of the Kyoto Protocol, towards a more flexible approach that encompasses all countries.
  • The pledge to mobilize climate finance from public and private sources (with a target figure of $100 billion specified in the Paris decision text but not the agreement itself).
  • And, perhaps most importantly, the extension of the regime to address the vast majority of global emissions, rather than focusing only on the emissions of “developed” countries.

In essence, what the Paris Agreement does is tie a treaty ribbon around these key elements of the Copenhagen Accord.

To be sure, the Paris Agreement does not simply recapitulate the Copenhagen Accord; it represents a progression down the Copenhagen path. The Paris Agreement builds on Copenhagen in three important respects.

Differentiation – First, it creates a more common system for all countries than the Copenhagen Accord. Copenhagen still retained elements of the binary approach to differentiation of the Kyoto Protocol, with distinctions drawn in various provisions between Annex I and non-Annex I parties. In contrast, the Paris Agreement completely abandons the Annex I/non-Annex I bifurcation. Most of the commitments in the Paris Agreement apply to all parties, including the commitments to formulate, communicate and update NDCs, and to submit the information necessary to track progress in implementing NDCs. Instead of the binary system of MRV in Copenhagen, with international assessment and review (IAR) for Annex I parties and international consultation and analysis (ICA) for non-Annex I parties, the Paris Agreement provides for a common system of reporting and review, with built-in flexibility to take account of different national capacities and circumstances. In addition, while the financial commitments of developed countries are reaffirmed, the Paris Agreement enlarges the donor base by encouraging other countries to provide financial support.

Durability – Second, the Paris Agreement gives the Copenhagen architecture a more durable character, both by putting it in treaty form and by calling for successive NDCs every five years, to be informed by periodic global stock-takes. The Copenhagen Accord addressed only the period up until 2020, through a one-off pledging process. The Paris Agreement, in contrast, establishes an ongoing regime of indefinite duration.

A rule-based structure – Finally, the Paris Agreement has a hybrid architecture, supplementing the bottom-up system of NDCs with internationally-negotiated rules to introduce some discipline into the national pledging process, which had been something of a free-for-all in Copenhagen. For example, the agreement requires parties to provide the information necessary to ensure that their NDCs are clear and transparent and to track progress in implementation, and provides that NDCs are to become progressively more ambitious over time.

Why Did Paris Succeed? Process and Product

In every important respect, the Paris Agreement moves away from the positions of those that opposed the Copenhagen Accord (or failed to support it the final night when the conference unraveled) and towards those that supported it. The Paris Agreement is less differentiated, provides for stronger transparency, and has a stronger legal form than Copenhagen. So why was Copenhagen rejected and Paris accepted?

Some point to the deft diplomacy of the French, and this certainly played a role. But I think it is overstated.   In Copenhagen, the Danish presidency was systematically undermined by those who wanted the conference to fail. Before the conference had even begun, they leaked the Danish negotiating text; then, during the conference, they repeatedly blocked attempts to convene a smaller group to work out the agreement, arguing that such a group would be undemocratic and untransparent – even though “friends of the chair” groups have a long pedigree in the UNFCCC process and had been the primary means of resolving crunch issues at virtually every COP prior to Copenhagen.

Of course, the Danes created openings for those who wished to raise procedural objections, most importantly, by not using the text from the official U.N. negotiations as the basis for their compromise text. The French learned from this mistake. From early on, they insisted that they did not have a separate text in their back pocket and would work with the negotiating text emerging from the ADP. That helped defuse suspicions and allowed countries to feel that they had ownership of the Paris Agreement.

But if countries had wished to raise procedural objections in Paris, they still had opportunities to do so, since in many ways the Paris endgame was even less transparent than Copenhagen. Rather than convene a broadly representative “friends of the chair” group, as the Danes tried to do, the French presidency held a series of consultations with individual countries during the final day and night, and individual delegations and groups of delegations met informally with one another. Virtually no one knew who was meeting with whom, and where the text stood. The result of this fluid, ad hoc process was a text containing new provisions of unknown provenance, which most delegations saw for the first time when it was presented to them in final form on Saturday afternoon, hours before the end of the conference.

Why did countries accept this final text, rather than raise procedural objections? To say that they did so because they liked and trusted Minister Fabius and wanted to reward his excellent job chairing the conference would trivialize the issues at stake. Yes, the trust he engendered helped, but it was not the main reason why Paris succeeded. The explanation instead lies in three factors:

First, while the Copenhagen architecture had been new in 2009, countries had become familiar with it by the time the Paris conference was held. After failing to gain acceptance in Copenhagen, it had been largely adopted the following year in the Cancun Agreements, and was reflected in the decisions leading up to Paris. So the foundation of the Paris Agreement had already been laid. Countries knew at least the broad outlines of what they were getting.

Second, the positions of several key developing countries, including China and Brazil, had evolved considerably.   In Copenhagen, they still hoped for an indefinite continuation of the Kyoto Protocol; indeed two years later, in Durban, adoption of a second commitment period under Kyoto was a precondition for agreement to begin the Paris negotiations. Although no decision was ever formally made not to continue Kyoto, everyone seem to have accepted by Paris that the next phase of the climate change regime would be a single agreement applicable to all parties. The joint announcement by the United States and China in fall 2014 heralded this shift, and gave many observers confidence that Paris would succeed where Copenhagen had failed. In Paris, the Kyoto Protocol was the dog that didn’t bark, and it looks like it will now go gently into the night.

Finally, expectations for Paris were much more realistic than Copenhagen.   Leading up to Copenhagen, it was obvious to close observers that countries would not be able to reach a legal agreement. But most people expected a legal agreement and took this as the benchmark of success, so it was easy to portray Copenhagen as a failure.

For Want of a “Should” the Paris Agreement Was Almost Lost

The end game of COPs is always a process of trench warfare, in which virtually every word is fought over, and gains and losses are measured in commas and brackets. One has to be a COP-ologist, familiar with the subtle history and nuance of every provision, to follow the to and fro.

For international relations scholars who wonder whether international agreements have any effect, the obsession with words may seem peculiar. But at least sometimes they matter.

This was particularly true of the last issue to be resolved in Paris: whether the provision that developed countries undertake absolute, economy-wide emission targets (Article 4.4) would be a “shall” or a “should.”  The ability of the United States to join the Paris Agreement hinged on which word was chosen, so the issue could not have been more consequential. Arguably, if the provision said “shall” and hence represented a legal commitment, then Senate or Congressional approval would have been required for US participation, whereas if the provision was a “should,” then the Paris Agreement could be accepted by the President as a presidential-executive agreement. Although the issue first erupted publicly the final afternoon of the meeting and delayed the closing plenary by more than an hour, reportedly it had featured prominently in the negotiations for some time and had consistently been resolved in earlier drafts in favor of “should.” How the word “shall” appeared in the final text presented on Saturday afternoon is a bit of a mystery. But, in any event, the issue was finally resolved through a Secretariat statement that use of the word, “shall,” was a “technical” error, and that “shall” would be replaced by “should.” A gasp went through the room when the Secretariat read the change, but no one raised an objection, and Fabius gaveled the agreement through by acclamation.

And the Show Goes On

The Paris conference gave new hope to the UN climate change process. But much remains to be done. Countries were able to agree only to the basic structure of the new climate change regime – the cycle of NDCs, reporting, review, stocktaking, and updating. Now, they must elaborate more detailed rules for how the Paris Agreement will work in practice – rules for reporting and review, international emissions trading, and a host of other issues.

If the Paris Agreement represented a true consensus on a new paradigm, then the next phase of the negotiations might be a more technical one. But I think that many developing countries accepted the move away from binary differentiation only reluctantly. And if twenty years of following the climate change negotiations has taught me anything, it is that nothing is ever fully settled; countries constantly push to regain ground that they had previously ceded.

The Paris Agreement is a particularly important moment in the ongoing process of climate negotiations. But it is not the end. At least for the foreseeable future, the UN climate change regime will likely remain a full employment agreement for climate negotiators.

Is the Paris Agreement Historic?

by Daniel Bodansky

Paris

[Dan Bodansky is the Foundation Professor of Law and Faculty Co-Director of the Center for Law and Global Affairs at the Sandra Day O’Connor College of Law at Arizona State University. He is in Paris for the climate change negotiations. This is the sixth in a series of updates both from the U.S. and from Paris. Professor Bodansky has consulted for the government of Switzerland and the Center for Climate and Energy Solutions (C2ES) in relation to the Paris Summit. However, he is writing in his personal capacity and the views expressed do not necessarily represent those of the Swiss government or C2ES.]

COP-21 adopted the Paris Agreement (.pdf) at around 7:30 pm on Saturday night, a remarkably punctual conclusion by COP standards. There was a bit of drama at the end, over a “should” vs. “shall” in one of the provisions (more on that tomorrow), and the final plenary waited for more than an hour while the French presidency, the United States and Brazil tried to work it out. But there was none of the chaos and grandstanding that usually characterizes the end game of climate conferences.

How should we evaluate the Paris Agreement? Certainly, it satisfied the rather modest criteria of success I identified before the conference began. It is a solid outcome, and the French team that led the conference and the negotiators who worked round the clock to finalize the agreement can feel proud of their achievement. Compared to past climate conferences, the Paris conference is definitely cause for celebration.

But is the Paris Agreement historic, as speaker after speaker last night declared? If we focus only on the agreement’s relatively spare contents, it seems hardly the stuff of history. Yes, the agreement does some positive things: it requires countries to put forward “nationally determined contributions” (NDCs) – that is, pledges about what they will do to reduce emissions; it provides for transparency and review, to hold countries accountable for what they say; and it provides for a global stocktaking every 5 years and a process to update NDCs, in order to drive greater ambition over time. But one shouldn’t oversell these results. The NDCs put forward pre-Paris fall far short of putting the world on a pathway to holding temperature change to below 2° C. Countries’ NDCs are not legally binding. There is little new in the agreement on adaptation and finance. And the provisions regarding transparency and review are skeletal, and will need to be fleshed out by subsequent decisions.

Still, despite its relatively modest substance, the Paris Agreement is potentially pivotal, because it completes the paradigm shift from the bifurcated world of the Kyoto Protocol, which rigidly distinguished between “Annex I” and “non-Annex I” countries, to the common global framework that began to emerge in the Copenhagen Accord. The world has changed a great deal from 1992, when the UN Framework Convention on Climate Change was adopted and Annex I defined. Many of the world’s richest countries, like Singapore and Qatar, are still considered “developing” under the Convention’s outdated annexes. And, more importantly, most of the growth in greenhouse gas emissions over the next century will occur in “developing” countries. So reorienting the UN climate change regime to make it truly global is essential to solving the climate change problem.

Getting there wasn’t easy. Many developing countries were extremely reluctant to give up the deal they had gotten in Kyoto. That’s one of the reasons why the negotiations in Paris were so difficult. (Other reasons include the reluctance of donor countries to provide more finance and the need for the US to avoid commitments that might require Senate or Congressional approval.) In order to achieve a common approach, the US and other western countries had to accept somewhat limited provisions on transparency and updating. But this was a small price to pay, if the Paris agreement finally puts the climate regime on a broad-based, durable footing, which can be progressively strengthened over time. If that happens – and, of course, only time will tell – then the Paris agreement will merit the accolades that were showered on it today.

Weekly News Wrap: December 14, 2015

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

  • Russia on Sunday warned Turkey to stop staging what it called provocations against its forces in or near Syria after one of its warships fired warning shots at a Turkish vessel in the Aegean to avoid a collision.
  • Chancellor Angela Merkel on Sunday brushed off what a Germany magazine said was a request from the United States to provide more military help in the fight against Islamic State.
  • A proposal to give the European Union executive the power to send forces unbidden into member states to defend the common European frontier will face resistance from some countries when it is published this week.
  • Chancellor Angela Merkel said on Sunday she wanted to “drastically decrease” the number of refugees coming to Germany, signaling a compromise to critics of her open-door policy from within her conservatives on the eve of a party congress.
  • Ecuador and Sweden have reached a deal that could pave the way for WikiLeaks founder Julian Assange to be questioned at the South American country’s embassy in London where he has lived for more than three years.

Americas

Oceania

UN/World

Events and Announcements: December 13, 2015

by Jessica Dorsey

Announcements

  • The Hebrew University of Jerusalem and the Freie Universität Berlin are accepting applications for the third round of Doctoral and Post-Doctoral fellowships in the fully-funded joint 3-year interdisciplinary Doctoral Program “Human Rights under Pressure – Ethics, Law and Politics” (HR-UP), funded by the German Research Foundation (DFG) and the Einstein Foundation Berlin. HR-UP offers young researchers a unique opportunity to conduct cutting-edge research on the most pressing contemporary challenges for human rights, including issues arising from crises and emergencies, globalization and diversity. Doctoral researchers admitted to the program will receive competitive fellowships and mobility funds for research terms at the partner university. They will be jointly supervised by senior researchers from Germany and Israel, and participate in both jointly and locally held courses, including a two-week introductory intensive course in Jerusalem, joint interdisciplinary colloquia, research ‘master-classes’, and three annual summer schools in Berlin. The program also includes two post-doctoral positions (one in each university). The deadline for doctoral applications is January 31st, 2016. Applications for the post-doctoral fellowship will run from January 11th-February 21st, 2016. For further information, and to apply, please visit  www.hr-up.net.
  • iCourts, Centre of Excellence for International Courts, Faculty of Law, University of Copenhagen seeks applications for fully funded PhD scholarships. Applications are due 28 January 2016. Successful candidates will begin as early as 1 July 2016. The PhD fellowship has a duration of three (3) years.
  • The Goettingen Journal of International Law has recently pre-published an article by Prof. Peter H. Sand & Prof. Jonathan B. Wiener. The article was a submission to GoJIL’s Call for Papers on the Protection of the Atmosphere. Their contribution assesses the prospects and limitations of the initial ILC reports and debates on the topic in 2014 and 2015, and potential avenues for progress in the years to come. It can be accessed at www.gojil.eu.
  • The board of editors is glad to announce that the University of Bologna Law Review is born! The University of Bologna Law Review is a student-run law journal published by the Department of Legal Studies of the University of Bologna, which boasts an almost millennial history as the oldest university of the Western World. In the wake of the glorious anglo-saxon tradition of student-run reviews – many of which have become renowned journals, recognized as a reference for academics in their fields of specialization – the University of Bologna Law Review is one of the very few student-run journals in Italy, and aims at establishing itself as a leading publication in its category. To this end, the Editorial Team opted for a double-blind peer-review system so as to assure the undisputed scientific soundness of the manuscripts, and strengthened it by setting up an Advisory Board who comprises both up-and-coming young scholars and highly-esteemed professors holding positions in prestigious universities all around the world. The University of Bologna Law Review is sponsored by Cleary Gottlieb Steen & Hamilton LLP.

Calls for Papers

  • The University of Bologna Law Review welcomes articles, case notes and book reviews for its first issue on the following topics: trust law; international business and commercial litigation; commercial and investment arbitration; tax law; investment law; competition law; monetary law. All these subjects can be tackled with a comparative, an European or an international approach. However, manuscripts on other subjects can certainly be submitted. The first issue will be published in June 2016. The deadline for submitting manuscripts is May 1st, 2016 at 11:59 pm (GMT+1). Submission must be in English and maximum 25,000 words in length, including footnotes. The University of Bologna Law Review follows the Bluebook: A Uniform System of Citation (20th ed.), providing you with the necessary support if needed. Further information is available here.
  • The Cambridge Student Law Journal is a blind reviewed, student-run legal journal run in association with Cambridge University Law Society and Slaughter & May. The Journal will be publishing its inaugural volume in the first half of 2016. The aim is to publish articles on a variety of legal topics written by students at all levels as well as early career researchers. We hope that the Journal will contribute to legal scholarship and stimulate academic debate. The Editorial Board welcomes long articles, short articles, and case comments on all aspects of law, legal history, and legal theory. Long articles should not exceed 12,000 words and case comments should ideally be between 1,000 words and 5,000 words. The board is particularly interested in articles from our international colleagues. Articles are to be submitted for consideration to journal [at] camlawsoc [dot] com on or before Friday, January 15th, 2016.

Events

  • ALMA – Association for the Promotion of International Humanitarian Law and the Radzyner Law School of the Interdisciplinary Center (IDC) would like to invite you to a special session of the Joint International Humanitarian Law Forum.The session will be held on Wednesday, December 16, 2015, 18:30,  in room C110, Arazi-Ofer Building, IDC Campus, Kanfei Nesharim St., Herzliya, Israel. In this session Adv. Christie Edwards will present: Women and Armed Conflicts. Christie will discuss the ways in which women are particularly affected by armed conflict, some of their specific vulnerabilities, and the ways in which the law does (or does not) provide protections for crimes of sexual violence in conflict. Christie is the Director of International Humanitarian Law at the American Red Cross  leading the organization’s legal education and public outreach efforts on IHL. Christie also serves as the Co-Chair of the American Society of International Law Women in International Law Interest Group (WILIG). Following the presentations, there will be an open round-table discussion. Please note that the session will be conducted in English. The meeting is free and open to the public. If you wish to attend the meetings of the Joint IHL Forum please register in advance via forum [at] alma-ihl [dot] org.

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.

Transitional Justice and Judicial Activism Symposium: Closing

by Ruti Teitel

[Ruti Teitel is the Ernst C Stiefel Professor of Comparative Law, New York Law School and the author of Globalizing Transitional Justice (OUP paper2015).]

I have learned a great deal from the thoughtful responses to my article (.pdf) by the participants in this symposium. Dinah PoKempner is correct to say that my article doesn’t address the merits of a “right of accountability” as such but rather looks to how the move to judicialization and application of human rights law interacts with political and other domestic processes of transition. She speculates that “the judicial recognition of such duties is unlikely to narrow the ambit of transitional justice.” Clearly more research here is needed to see how these processes interact: one could conclude that it might well engage in constructive way with transition. Dinah concludes that the problem is that there is too little in the way of human rights law associated with the transition, rather than too much. The question here may be less the ambit of the right to accountability in itself than the nature of the remedies that tribunals impose, and their relationship to the domestic processes of transitional justice.

One example, which I discuss in my article is, is Goiburu, where the Inter-American Court required that Paraguay’s create a museum, which would honor the victims of human rights abuses in the conflict of the past. Such a remedy arguably risks preempting truth processes where all sides the conflict have an opportunity to address narratives of truth. While Dinah concludes that “(t)he repertoire of transitional justice is likely to remain broader than the jurisprudence of human rights courts, which serve a different end, and a different pace” from its very inception the Inter American Court of Human Rights has been drawn into the issue of accountability relating to transitions.

On the other hand, Cesare Romano suggests as an implication of my analysis the notion that international courts exercise discretion in taking jurisdiction, based on the nature of the issues at stake in the dispute, and the extent to which its underlying character is political. Drawing upon the current peace deal in Havana between Colombia and the FARC, which does not contemplate a maximalist approach to justice, Cesare raises the question of whether such a deal would withstand scrutiny given the jurisprudence in my article. He argues that the” time has come to start considering the merits of allowing international adjudicative bodies, like the various international human rights courts, and quasi-adjudicative bodies, like the Inter-American Commission and the Human Rights Committee, to pick and choose their cases.”

At present they have no such choice, Cesare continues:

Faced with inopportune cases, international adjudicative bodies too often end up compromising their legitimacy. They stall, dither, and, eventually, render flawed decisions that try to square the circle and appease everyone but end up appeasing no one. And when they take advantage of the little leeway they have and manage to dodge the case, they are open to criticism because of the lack of transparency about the considerations that have been weighted.

His proposal that international tribunals would have discretion to refuse cases say along political question lines is very interesting. No doubt, where a tribunal is long established and has acquired considerable legitimacy and recognized independence this could work. In other instances, where there is a greater fragility, the result might be undue political pressure on a tribunal not to adjudicate in controversial cases. The concern is that since transitional justice issues involve both law and politics that genuine legal disputes would be screened out due to political questions and the right of accountability might well be elided altogether.

Chandra Sriram questions the use of the term “crossjudging” to denote the influence of the jurisprudence of one tribunal on another.

In my view “cross-judging” is a broader notion than transnational judicial dialogue or cooperation because it can denote the use by a tribunal of another’s jurisprudence in the manner of simply drawing on the relevant normative material, i.e. without networking or any interaction between the judges. In this sense “cross-judging” points to a rich universe of case law in the international domain that is relevant, whether or not tribunals or judges choose to interact explicitly.

Chandra also makes several observations that to go issues of state responsibility, a focus of international law/ she underscores an issue at the heart of my article which goes to accountability for disapprearances where there is often blanket denial : “Judgments have relied on a mixture of state responsibility for direct action by its agents, and of state inaction. “ She invites me to expand on this issue “particularly in light of two challenges which confront international criminal and transitional justice: the role of non-state actors in serious abuses, and modalities of interpreting complicity and joint criminal enterprise “

Kristen Boon’s post addresses “the undercurrents of state responsibility” raised by my article.
Boon writes:

As conceptualized in her article, the right to accountability is a primary rule of international law that is based in treaty law, and particularly the right to life. It is also connected to other sources such as the International Convention for the Protection of All Persons from Enforced Disappearances, and Article 7 of the Statute of the ICC. There is, of course, no “right to accountability” as such.

She rightly notes that the emergence of the norm of right to accountability doesn’t settle but continues to create challenges re secondary rules particularly regarding attribution. I agree. One issue for instance is whether there might be attribution where a state egregiously fails to investigate alleged human rights abuses over a long period of time, simply foreclosing accountability. In some circumstances, could one draw the inference that, in doing nothing to address the wrongfulness of the conduct that the state is adopting or acknowledging that conduct as its own within the meaning of Article 11 of the ILC Articles. This is just to illustrate that the question of attribution cannot be reduced to considerations simply of state “control” when we are dealing with the right to accountability

Transitional Justice and Judicial Activism Symposium

by Kristen Boon

The focus of Ruti’s article is the developing primary norm of the “right to accountability”, which derives from international jurisprudence associated with disappearances. Ruti describes the core content of this right as one that “implies a set of obligations on the state, largely read into prevailing treaty rights protections involving personal security, such as the right to life, whether under the International Covenant on Civil and Political Rights or the European or Inter-American conventions on human rights.” Like arguments for a right to democracy, it has its aspirational dimensions. Yet, Ruti taps into some very interesting undercurrents that implicate state responsibility, and it is this angle that I wish to comment on today.

As conceptualized in her article, the right to accountability is a primary rule of international law that is based in treaty law, and particularly the right to life. It is also connected to other sources such as the International Convention for the Protection of All Persons from Enforced Disappearances, and Article 7 of the Statute of the ICC. There is, of course, no “right to accountability” as such.   The primary norm is based on patterns of jurisprudence developed through judicial tools which courts have adopted to overcome obstacles associated with cases involving disappearances, whether jurisdictional (such as time bars), or stemming from a state’s refusal to recognize the disappearance.

A central claim of the article is that this primary norm has developed as a remedy to the limitations of secondary rules, such as rules on attribution under the Articles on State Responsibility. In this, as Ruti notes, there are parallels with terrorism and cases of rendition, that have led to the elaboration of new duties, such as a duty to prevent, and creative thinking about omissions and due diligence standards. I have discussed these trends in a recent article in the Melbourne Journal of International Law available here.

Nonetheless, given the connection between state action and disappearances, the secondary rules of state responsibility remain important. Ruti describes some of these connections: in Heliodoro Portugal, for example, she writes that “the court drew on the principle of the continuing breach of state responsibility rather than fully conceiving the failure to provide accountability as an autonomous internationally wrongful act— which, of course, obviously continued up to the time the petition was brought, and persisted until and unless there was state explanation.”   Ruti also discusses the attribution of acts to a state, and notes the IACHR’s profound contributions to its development and application, beginning with the Velasquez Rodriguez case. Importantly, she highlights that courts are not adhering to the traditional two-step process of identifying attribution and wrongfulness, instead determining there is “a right to accountability” regardless of whether it can be established that the original human rights abuses were themselves internationally wrongful. Finally, in Goiburu, she discusses connections between forced disappearance and violations erga omnes, which trigger the responsibility of other states and the international community as a whole.

One interesting dimension of this article is that it points towards a unified theory of responsibility that combines international criminal law, human rights law, and global / criminal justice. Another is that it highlights the problem of slippage in international law: states are increasingly outsourcing key activities, including activities that have been linked with disappearances, raising the question of whether one high level of control is the appropriate default standard in international law.   Finally, this study supports the proposition that in certain areas of law- which may now include disappearances – the relevance of secondary rules is waning.  As such, the piece provides interesting insights into the status of secondary rules of state responsibility in a variety of regional courts.   There are a series of open questions that follow: Might this jurisprudence constitute a lex specialis for attribution doctrines in the field of human rights? More generally, what would a unified theory of responsibility that encompasses states, international organizations, individuals, and non-state actors look like? What would its core components be? Finally, are attribution doctrines under the ASR fit for the purpose today, given the changing nature of the modern state, including prevalent out-sourcing and multilevel governance situations?  I would be very interested in Ruti’s take on how to remedy the gaps in the ASR given the role of non-state actors in the cases she examines.

Transparency and Access at the Paris Negotiations

by Hari Osofsky

[Hari Osofsky is a law professor, faculty director of the Energy Transition Lab, and director of the Joint Degree Program in Law, Science & Technology at the University of Minnesota. She is serving as chair of the American Society of International Law’s observer delegation at the 2015 Paris climate change negotiations. Any views expressed are those of the author and do not represent the views of either the University of Minnesota or the American Society of International Law. This is her second post from Paris.]

Expectancy has dominated the last two days as people awaited each day’s new draft of the agreement. Because the negotiations are taking place behind closed doors, people use relationships to learn ever-evolving information about the state of negotiations and timing of draft release and to give input to the small set of party representatives allowed in the negotiating rooms. They also race to gain the tickets that allow them access to the plenary room in which the Comité de Paris takes place, since most observers and many delegation members are stuck watching in overflow rooms. In the spirit of transparency, no one except those compiling the draft receives a copy before its release at the Comité de Paris and the drafts and reports on the consultations have all been posted publicly. I stood in a dinner line tonight with a minister who affirmed that he was looking forward to seeing the new draft.

At the Comité de Paris in which Wednesday’s draft was released, Laurent Fabius, COP 21 President, noted many new areas of convergence (there was a three-quarter reduction of bracketed language) and three remaining cross-cutting outstanding political issues, which are no great surprise: differentiation, financing, and level of ambition. After a second Comité de Paris that went until almost 11:30 pm, party statements reinforced that many key negotiating issues still remained, as Dan Bodansky’s post covered. I too was struck by the number of parties calling for a goal limiting the temperature rise to 1.5 degrees, as well as the level of support for the human rights provisions and REDD+.

State parties worked overnight and a new draft was released Thursday evening, with the time rolling back from early afternoon to 9 pm as people exchanged rumors and information. The same three political issues remain the key areas of negotiation and parties are participating in an Indaba of Solutions (closed to observers, with three exchangeable passes for each party) from 11:30 pm on after two hours to review the document. President Laurent Fabius made clear that the time has passed for general statements, and that this Indaba would focus only on compromise solutions aimed at seeking landing zones. He still aims to produce the final text tomorrow. The new text has even fewer bracketed items, and clearly represents some tough compromises. Notably, for example, human rights are mentioned in the preamble without brackets, but have been removed from the operational Article 2.

Press conferences abound as this COP moves towards its conclusion, reinforcing the sense of energy here. In one of the most high profile press events yesterday, Secretary Kerry formally announced that the U.S. is part of the high-ambition coalition and would double its grant-based adaptation commitments by 2020. The press conference was screened to an overflow audience at the U.S. Center as security excluded all observers from the actual press conference (limited to the press pool).

At the same time the negotiations continue to unfold, side events highlighting cities, states, and corporations, as well as a myriad of specific issues, proliferate inside the restricted Blue Zone, in the public Climate Generations space, and around Paris. As someone trying to go to as many side events as possible on subnational government and corporations (while also attending the very limited number of the official negotiation meetings that I have access to), I am overwhelmed by the number of simultaneous options. Participants in these events, including ones who have been to many COPs, attest to the growing role of these non-nation-state entities and recognition of that role. At the same time, many of them call for greater access and inclusion.

As I return from tonight’s meeting, I want to reflect for a moment on this question of access in a world of increasingly polycentric climate change governance. I worry about what those concentric circles that I referred to in my first guest post mean for stakeholders’ ability to have input into the critical compromises being made as I write. There is a fundamental tension at the core of this issue. On the one hand, closed spaces can help people speak freely in ways needed for compromise. On the other hand, if all these other stakeholders matter to the problem and its solution, are current avenues for input enough?

Non-parties have certainly had some avenues for input here besides back channels and this post is not intended as a criticism of access at this meeting in particular. Observers were given the opportunity to talk with Executive Secretary Christiana Figueres and UNFCCC COP 20 President and current Peruvian Minister of Environment Manuel Pulgar-Vidal Wednesday morning, and Minister Pulgar-Vidal conveyed their input at the Comité de Paris just before the Wednesday evening meeting closed. Meanwhile, advocacy groups, such as the coalition working to shift the countries opposing human rights provisions, continue their campaigns to influence national positions with letters and calls to key officials—as well as by comments on drafts given to those with access to negotiators. And nation-states’ pledges through their Intended Nationally Determined Contributions (INDCs) are foundationally based on conversations that national governments have had with other key governmental and nongovernmental actors.

The access issues in international negotiations, though, are much more fundamental than the particular procedures used in any given meeting. Namely, the nation-state-based structure of negotiations and agreements fundamentally limits how polycentric governance is in this context. Even if cities, states, regions, and corporations form their own agreements and pledges, the closed structure of this final stage of negotiations constrains how much those efforts are able to align. And as many have discussed in multiple contexts, resource differences among nation-states make a major difference in their ability to negotiate; the President has tried to be sensitive to small delegations who do not have enough people to attend simultaneous meetings on several streams, but it is clearly much easier for delegations that can substitute in negotiators as meetings go into the wee hours over multiple nights.

The solution to this problem is not straightforward. The world remains divided into nation-state units and treaties among nation-states remain the strongest mechanism that the world has to try to achieve universal action—a critically needed step given how large the gap is between the INDCs and the 1.5 (or even 2) degree goal. But after people emerge from this meeting, hopefully with as strong a Paris Outcome as possible, it is worth taking some time to consider what ways might exist to bring key actors on climate change together better as they make important decisions.

Moreno-Ocampo Needs a Remedial Criminal Law Course

by Kevin Jon Heller

Here is Moreno-Ocampo’s latest doozy, concerning the possibility of Israelis being prosecuted for war crimes related to Israel’s illegal settlements in the West Bank:

Where the Israeli High Court of Justice has approved specific settlements as legal, this could provide a complete defense to any allegations that they are war crimes, former International Criminal Court chief prosecutor Luis Moreno-Ocampo told the Jerusalem Post on Thursday.

Moreno-Ocampo is in Jerusalem lecturing at the The Fried-Gal Transitional Justice Initiative at the Hebrew University Law School.

Although Moreno-Ocampo has stepped down from his post, he was the boss of the current ICC chief prosecutor who will decide whether or not the settlements qualify as a war crime, is considered highly influential internationally and his statement could be a major coup in the debate over the issue.

Moreno-Ocampo did not by any means say that the settlements were legal under international law.

But he did say that “Israel’s High Court is highly respected internationally” and that anyone prosecuting Israelis regarding settlement activity would be incapable of proving criminal intent if those Israelis explained that they honestly believed their actions were legal once ratified by the country’s top court.

“At least they could show no intention” to commit a crime said the former chief ICC prosecutor.

Few ICL scholars are more sympathetic to mistake defences than I am (see this article), but Moreno-Ocampo’s statements simply make no sense. Most obviously, Art. 32(2) of the Rome Statute specifically recognises the principle ignorantia legis neminem excusat — ignorance of the law excuses no one:

A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility.

Art. 32(2) applies regardless of whether a defendant was simply unaware that his actions were illegal (ignorance) or affirmatively believed that they were legal (mistaken belief). So if an Israeli was prosecuted for committing a settlement-related war crime — transfer of civilians into occupied territory, forcible transfer, pillaging, etc. — it would not matter that he either did not know international law criminalised his actions or believed that his actions were legal because the Israeli Supreme Court had approved the legality of settlements. The only question would be whether he committed the actus reus of the war crime in question with the necessary mens rea.

To be sure, some common-law systems provide an exception to the ignorantia legis principle where the defendant has reasonably relied on an official interpretation of the law. Moreno-Ocampo’s emphasis on the reputation of the Israeli Supreme Court suggests he might be thinking about that exception. But there are two significant problems here. First, no such exception exists in the Rome Statute, as the text of Art. 32(2) makes clear. Second, even if there was one, the ICC would be very unlikely to conclude that an Israeli defendant could reasonably rely on a statement by an Israeli court — even a supposedly “highly respected” one (which is questionable) — that settlements are legal. That would obviously be the case if the Israeli Supreme Court affirmed that the settlements were legal under Israeli law; no international tribunal has ever allowed such a “domestic legality” defence. And I seriously doubt that the ICC would find it any more reasonable for an Israeli defendant to rely on an Israeli court’s interpretation of international law, given the widespread international rejection of official Israeli positions on a variety of international-law issues.

Finally, we might be generous and assume that Moreno-Ocampo was actually thinking not about Art. 32(2) of the Rome Statute, but about Art. 32(1), which recognises mistakes that negative mens rea:

A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.

In this interpretation, Moreno-Ocamp is actually arguing that an Israeli defendant who knew the Israeli Supreme Court had approved the legality of the settlements would not have the mental states required by any of the various settlement-related war crimes. But that is a flawed argument, because none of those war crimes require a mens rea that would be negated by a belief in settlement legality. Consider, for example, the elements of the war crime of direct or indirect transfer, Art. 8(2)(b)(viii) of the Rome Statute:

1. The perpetrator: (a) Transferred, directly or indirectly, parts of its own population into the territory it occupies…

2. The conduct took place in the context of and was associated with an international armed conflict.

3. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

In terms of mens rea, Art. 8(2)(b)(viii) requires the prosecution to prove that the defendant (1) intentionally engaged in the acts that qualified as direct or indirect transfer; (2) knew that Israeli civilians were moving into occupied territory; and (3) knew that Israel exercised effective control over the West Bank at the time of the transfer. The defendant’s belief that settlements are legal would not negate either of those mental elements, so Art. 32(1) would not apply.

No matter how we interpret it, then, Moreno-Ocampo’s statement about the Israeli Supreme Court makes no sense as a matter of substantive international criminal law. Israel relies on the “expertise” of this “highly influential” former prosecutor at its own peril…

Transitional Justice and Judicial Activism Symposium: Comments by Chandra Lekha Sriram

by Chandra Lekha Sriram

[Chandra Lekha Sriram, Professor of International Law and International Relations and Director, Centre on Human Rights in Conflict, University of East London.]

This insightful article covers a great deal of subject matter, far more than can be analysed in a brief comment. These include not only the topics signaled by the title, but also the relationship between transitional justice and international criminal accountability and between transitional justice and the jurisprudence of regional courts. The primary focus of the article is the jurisprudence of regional courts, specifically the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR), on forced disappearances and its relationship to political transitions. It necessarily touches upon a number of complex issues that continue to bedevil transitional justice and international criminal justice, and I will take up a few of these.

State perpetration and state inaction
The paper understandably begins with the jurisprudence of the IACtHR) and the Velasquez-Rodriguez, relating to enforced disappearances in Honduras. As with many of the cases to follow, while the pattern of state perpetration appeared evident, the state engaged in blanket denial of responsibility, and evidentiary difficulties have meant that judgments have relied on a mixture of state responsibility for direct action by its agents, and of state inaction. Teitel rightly flags this issue, but doesn’t expand on it as she might do, particularly in light of two challenges which confront international criminal and transitional justice: the role of non-state actors in serious abuses, and modalities of interpreting complicity and joint criminal enterprise.

Transnational/regional state violence
Not surprisingly given the history of transnational violence and inter-state collaboration in abuses via Plan Condor in South America, the IACtHR has had to render judgments on regional violence. Yet, while its decisions have referred to regional patterns of violence, they haven’t grappled sufficiently with additional challenges that state collaboration may have for questions of state responsibility, either for breaches of obligations to their own citizens or potentially those in relation to other states. Teitel explains that the trend is to treat such violations as erga omnes and thus of concern to the international community generally; this turn also appears to underpin treatment of temporal jurisdiction encompassing violations which predate some states’ acceptance of the jurisdiction of the court. Each of these trends seem open to question, and the essay might have interrogated these further.

Justice in and for strong vs weak states
The article argues that there has been a shift from strong to weak state transitional justice, in states with weak rule of law, with concomitant effects for regional and international courts. Certainly, it is notable that many of the situation countries at the International Criminal Court (ICC) are either emerging from serious internal armed conflict or are dysfunctional or collapsed states. However, these countries are all in Africa, with only Georgia now the subject of a non-African request for the opening of an investigation, and therefore not subject to the jurisdiction of either of the regional courts examined in the article. Further, while it is true that some of these states do have weak or failing judiciaries, many do not, although those judiciaries may well be corrupt or biased. Further, many states of interest for the article are not weak or collapsed, and are able to resist implementing judgments, either thoroughly or at all, such as Russia or Brazil. Even some ICC situation countries are quite strong, or at least able to resist external courts, such as Sudan, Kenya and Uganda. The claim regarding this trend needs more justification, particularly as there are important implications noted, such as that it is concomitant with an expansion of legal obligations and rights.

Cross-judging or transnational legal culture?
The article develops the concept of “cross-judging”, or interpretation across legal systems. She characterizes this largely as the cross-referencing of cases between the two regional courts. However, one might ask for a greater examination of the use of similar doctrines and practices across not only these courts but also others, as she begins to discuss when addressing subsidiarity, deference, and the ICC principle of complementarity. Here, an examination of the work of the African Court of Human and People’s Rights might have provided an additional comparative perspective, particularly given that court’s broader application of states’ obligations beyond the African Convention. The necessity of the creation of the term “cross-judging” is also somewhat unclear, given the rich literature that exists on transnational judicial dialogue and transnational legal culture. Is there something unique about the new term?

Expanding external jurisprudence and internal transitional justice
Teitel closes with reflections upon the challenges where courts intervene in countries where accountability has begun, but has stopped or is delayed. She suggests that there is, or ought to be, a continuum of accountability where there are domestic political considerations in play. Building on conceptions of judicial deference, subsidiarity and complementarity, she makes the case for caution with the increase of judicialization. It is an important call, given that much of the argument against judicialization and indeed individual criminalization has focused purely on political pragmatism, and political strategies, whereas she focuses on legal strategies. This approach opens up new opportunities for both research and policy development.

To close in brief, this is an article rich with challenges and ideas, and I have drawn on and queried just a few. Naturally, such an article could not have addressed all of the issues I have raised, but I look forward to Teitel’s reactions to the comments in this piece and others.

The Endowment Effect and the International Climate Change Negotiations

by Daniel Bodansky

[Dan Bodansky is the Foundation Professor of Law and Faculty Co-Director of the Center for Law and Global Affairs at the Sandra Day O’Connor College of Law at Arizona State University. He is in Paris for the climate change negotiations. This is the fifth in a series of updates both from the U.S. and from Paris. Professor Bodansky has consulted for the government of Switzerland and the Center for Climate and Energy Solutions (C2ES) in relation to the Paris Summit. However, he is writing in his personal capacity and the views expressed do not necessarily represent those of the Swiss government or C2ES.]

According to the endowment effect, people care more about losses than gains. If the no-Paris-agreement status quo represents country’s current endowment, then the endowment effect suggests that countries will place a higher priority on removing provisions in the Paris agreement that represent losses to them, than on including provisions that represent wins. That is why, in reaching an agreement, countries tend to resolve differences by removing provisions rather than by adding them. Hence the incredible shrinking climate agreement that I described in my earlier post.

Yesterday afternoon, the French put out a new version of the text (.pdf). Even though it made relatively modest changes, and left all of the crunch issues unresolved, and even though all countries accepted it as a basis of negotiations, they raised many objections in a three-plus hour meeting of the Paris Committee last night. Indeed virtually every option that the French text had tried to remove, some country insisted on putting back in. Following the Paris Committee, which ended at about 11:30 PM, the French presidency convened a smaller, closed meeting (known as an Indaba, a term that originated at the 2011 Durban COP), which reportedly ran until 7:30 AM. Apparently, the Indaba made little progress in bridging differences, so the French are now conducting bilateral consultations with a wide variety of countries, to try to reach agreement on “landing zones” for the various issues in the text.

Interestingly, the issue that was probably raised most frequently last night in the public meeting of the Paris Committee was the need to strengthen the long-term goal from the current goal of limiting temperature increase to no more than 2° C, to a goal of no more than 1.5° C. Since most analysts agree that there is no prospect of meeting the below-2° target, it is unclear what benefit would be provided by adopting an even more unrealistic temperature goal. Supporters of the 1.5° goal remind me of the courtiers to King Canute, who thought he could command the tide not to rise – they seem to believe that saying 1.5° will make it so. This reflects a touching faith in the power of words, but, frankly, I think the efforts to include a 1.5° degree goal might better be spent on including provisions in the agreement that are most likely to actually reduce emissions, such as a strong transparency system and a ratchet mechanism to encourage progressively more ambitious action over time.

The negotiations are now going 24/7. Although they are scheduled to end on Friday, most assume that they will continue into Saturday and possibly Sunday. A good indicator is that most delegations with whom I’ve spoken have booked return tickets for Monday!

Correction:  My original post incorrectly suggested that King Cnut actually believed he could command the tide to stop.  But, apparently, the correct rendition of the story is that King Cnut knew he was powerless to stop the tide from rising, and ordered it to do so either to show the supreme power of God over his own secular power, or to rebuke his fawning courtiers (depending on which version of the tale one reads).

A Shout-Out For Peter Spiro’s NY Times Oped on the Constitutionality of Trump’s Muslim Ban

by Julian Ku

I wanted to briefly point our readers to this smart oped in today’s NY Times from OJ’s own Peter Spiro on the constitutionality of Donald Trump’s proposed ban on Muslim immigration into the U.S.  Peter argues that, contrary to many people’s expectations, such a ban would be constitutional.  And that’s the problem.  Read the whole thing!

Transitional Justice and Judicial Activism Symposium: International Courts and Tribunals Should Have Discretionary Review

by Cesare Romano

[Cesare Romano is Professor of Law, Joseph W. Ford Fellow, and Director of the International Human Rights Clinic at Loyola Law School, Los Angeles. He is also Senior Research Fellow of iCourts, University of Copenhagen, and of Pluricourts, University of Oslo.]

Last September, the President of Colombia, Juan Manuel Santos, and Timoleón Jiménez, the top commander of the Revolutionary Armed Forces of Colombia (FARC), met in Havana to unveil a plan to put an end to the violence that has plagued their country for more than 50 years. According to the National Center for Historical Memory, between 1958 and 2012 about 220,000 people died as a result of the conflict between leftist guerrillas, right-wing paramilitary groups, and government security forces. Of those, about 80% were civilians. Moreover, violence, or the fear of it, created 6 million of refugees or internally displaced persons.

A key aspect of the plan is what sort of penalties the perpetrators of crimes against humanity during the long conflict should face. As agreed in Havana, while the rank-and-file of the FARC’s fighters will receive amnesties, leaders charged with “the most serious and representative” crimes will be judged by a Special Tribunal, containing a minority of foreign judges (para 3 of Joint Communique No. 60) (.pdf). Those who confess and collaborate with a Truth Commission will benefit from alternative penalties: between five and eight years of community work “with effective restriction of liberty”, though not in prison conditions. Those who do not collaborate will go to jail for up to 20 years. Similar procedures will apply to the armed forces and those found guilty of financing right-wing paramilitary vigilantes.

Once upon a time, ending civil wars was fairly straightforward, at least from the legal point of view. In return for demobilizing, insurgents would get an amnesty and, if they were lucky, political reforms or even a hand in writing a new constitution. That was what happened in the Central American peace deals of the 1990s, and with Colombia’s M-19 rebels, active between 1970 and 1990.

However, as Ruti Teitel’s article Transitional Justice and Judicial Activism: A Right to Accountability? (.pdf) details, international law has changed since then. Starting from the mid-1990s, the imperative of accountability has moved to the front and center, displacing time-honored transitional justice processes including lustration, exile and the many hard-bargains peoples have made throughout history to turn the page on traumatic events and move on. Nowadays, blanket amnesties that grant impunity for international crimes are, at best, frowned upon, and are even arguably prohibited by international law. Moreover, the range of crimes that cannot be pardoned or amnestied is growing by the day, going beyond jus cogens.

As the Colombian peace process advances, many wonder whether the agreements reached in Havana will pass muster with the International Criminal Court, the Inter-American Court of Human Rights or the UN Human Rights Committee. Will the punishment meted out by the Special Tribunal satisfy the ICC Prosecutor? Some victims will certainly challenge the legality of the agreement before the Human Rights Committee or the Inter-American Commission. The question might even reach the Inter-American Court, as it has been the case in the past with similar processes in Brazil, Uruguay, Chile and Peru. Will the imperatives of accountability and human rights undo the negotiations? Teitel’s article skillfully takes us through the maze of considerations and dilemmas that international judicial involvement in transitional justice efforts create.

I believe time has come to start considering the merits of allowing international adjudicative bodies, like the various international human rights courts, and quasi-adjudicative bodies, like the Inter-American Commission and the Human Rights Committee, to pick and choose their cases.

“Discretionary review” is the authority appellate courts have to decide which cases they will consider from among those submitted to them. The opposite of discretionary review is “mandatory review”, in which appellate courts must consider all appeals submitted (as long as they are admissible and the appellate court has jurisdiction, of course).

Discretionary review is widely employed in all modern and developed judicial systems. It has several advantages. It enables an appellate court to focus its limited resources on cases that have large public benefits, and to decide substantive cases with the lowest “opportunity cost”, thus giving the judges the opportunity to avoid being entangled in disputes where the political stakes are too high. It helps the system to develop a coherent body of case law, and reduce potential conflicts with past decisions or other jurisdictions.

Under contemporary international law, international courts and tribunals have mostly mandatory review. When a case is admissible and the adjudicating body in question has jurisdiction, there is little the judges can do to avoid deciding the case. Arguably, the International Court of Justice would have been better off if it had the chance to avoid answering questions that it could not really answer, such as whether the use or threat of use of nuclear weapons is against international law, or whether genocide had been committed in the former Yugoslavia in the 1990s.

I am sure the Inter-American Court would have preferred not having to pronounce itself on the legality under international law of amnesty laws in several Latin American states. But it had no choice. Once the Inter-American Commission brings a case before it, unless it finds the case not admissible or that it does not have jurisdiction (which has happened, for technical and practical reasons, extremely rarely in the history of the Court), it has to decide. And, given the legal parameters that it has to apply, and the general pro homine bias it necessarily has, the cases lead to scripted conclusions.

The same can be said about the African Court of Human and Peoples’ Rights and the European Court of Human Rights. Albeit in recent years, after the entry into force of Protocol 14 to the European Convention, the Strasbourg court has been given limited discretionary review through the introduction of pilot cases, it is still forced to decide more often than not cases that it should not decide as a matter of opportunity. Admittedly, international criminal tribunals have greater discretion that the other kinds of international adjudicative bodies. However, the discretion is only the Prosecutor’s. Once the Prosecutor has decided to investigate and indict, the judges cannot second guess the Prosecutor and dismiss the case because it might undermine delicate transitional justice efforts.

Faced with inopportune cases, international adjudicative bodies too often end up compromising their legitimacy. They stall, dither, and, eventually, render flawed decisions that try to square the circle and appease everyone but end up appeasing no one. And when they take advantage of the little leeway they have and manage to dodge the case, they are open to criticism because of the lack of transparency about the considerations that have been weighted.

Such a reform would be a momentous change in international procedural law, even if limited to just one adjudicative body. There are many questions to be considered, including whether it could be done by simply modifying the rules of procedure and add a new admissibility criterion, or whether it would require changing the statutes, and, thus, require states’ intervention; how much latitude should international judicial bodies have in deciding when to hear a case; who should be allowed to argue on whether the court should take on the case and how (petition of certiorari only or also hearings?); by what majority should the decision be taken (e.g. the U.S Supreme Court requires four judges out of nine to vote to take on a case); whether the judges should motivate the decision not to take on a case; and so on.

Granted, discretionary review has some disadvantages, too. It reduces access to justice and leaves the parties (mostly victims of human rights abuses) at the mercy of the discretion of the court. However, if we can trust the wisdom of these judges on the merits of the case, why can’t we trust them also on weighing the costs and benefits, writ large, of hearing the case? It is exactly the conundrums of transitional justices detailed in Teitel’s article that should give us pause and let us consider the merits of discretionary review in international adjudicative processes.

Transitional Justice and Judicial Activism Symposium: Comments by Dinah PoKempner

by Dinah PoKempner

[Dinah PoKempner is General Counsel of Human Rights Watch. She is writing in her personal capacity. Views expressed in this essay are not necessarily those of HRW.]

Increasing judicial recognition of a duty to investigate and even to prosecute serious violations of international law is unlikely to narrow the ambit of transitional justice; to the contrary, it adds pressure for more thorough transitional measures by upping the reputational cost of impunity.

Not even two decades have passed since agreement of the Rome Statute of the International Criminal Court, arguably a high water mark in political consensus on accountability for human rights crimes. While that institution has survived what was initially feared to be its strongest political obstacle—the non-participation and even subversion of great powers—it is still having difficulty in gaining acceptance in Africa, a region with the greatest number of both states parties and ICC investigations. The region is also known for weak state institutions where, as Ruti Teitel would acknowledge, supranational judicial intervention (even by invitation) may be most likely and most appropriate. Indeed, watching its moves in carefully navigating a course to find what is politically as well as legally feasible to prosecute is itself an education in the limitations of international law as a bulwark against real-world impunity, even after the moment of international political consensus.

I mention this, because it seems premature to worry, as Teitel does, about a developing judicial consensus on what she terms the “right to accountability” overwhelming the political options for transitional justice. If anything, judicial recognition of state obligations to provide account, investigate and even prosecute the most serious abuses can add a little impetus for broader transition from a regime of abuse towards one of legality.

Teitel elegantly traces a number of components of accountability through international judicial bodies. She grounds the notion of account in the crime of enforced disappearance, where the question of what happened and who did it—that is, the state’s refusal to give account–is quite literally the central wrong. As she points out, the law developed in a way highly sensitive to context, in this case the regional as well as national context of patterns of impunity, failure to investigate, and systemic political corruption that courts noted in imputing duties to the state even where states denied involvement in the crime.

It bears mention that in less obscure contexts—massacres, genocides, ethnic cleansing—the notion of an investigation and formal account has also become established as a primary duty of the state, both through normal domestic law and through transitional mechanisms. Should the state fail in this duty, such an account might be supplied by a foreign or international prosecutor, court or commission if need be. Either way, resort beyond the national courts indicates a failure of the state to assume the burden of the account as well as the conclusions on remediation or retribution that may flow therefrom. What disappearance jurisprudence added was not an entirely sui generis duty of investigation or right to the truth (.pdf), but rather a notable judicial reluctance to step aside (by courts flexibly interpreting doctrines such as standing, exhaustion of remedies, statutes of limitation, etc.) when a state stonewalled on what everyone more or less knew were the likely victims, the likely perpetrators, and the likely wrongs.

Indeed, enforced disappearance, more than many other human rights crimes, is custom-built for legal deniability. It may be that the precedent of courts sidestepping prudential obstacles to read new duties into the law may be more interesting as a model of judicial approach for other elusive or deniable crimes than as the origin point of a duty to investigate. Perhaps a duty of democratic oversight or transparency will one day be read into human rights law when deniability for violations rests on secrecy justified by national security interests; or maybe we will see a duty of accurate and public record-keeping on persons taken into state custody, to avoid liability for conditions that encourage abuse.

The second line of jurisprudence Teitel describes as creating a “right to retributive justice” involve state actions that in the main implicate criminal acts for which there is a clear and pre-existing duty of investigation and potentially prosecution, such as torture, enforced disappearance or a crime against humanity. Although scholars have long asserted a duty of prosecution, it was not seen by all as comprehensive or mandatory until fairly recently. That such a duty is gaining judicial recognition is a natural corollary of the positive duty of states to prevent abuses, by discouraging an environment of impunity.

But the formal legal recognition of a duty to prosecute does not necessarily displace transitional justice measures as Teitel suggests when she adverts to “a restructuring and narrowing of the relevant questions” or to a shift of emphasis from “political and social goals of transition to other more limited aims such as procedural justice for victims and their families.” There is no reason that these processes cannot co-exist, and indeed, they often do.

Indeed, as she acknowledges, supranational legal interventions from regional courts can also take place outside of a transitional context or in lieu of it; Russia and Turkey are not in the midst of transition with respect to their counter-terrorism policies, to the contrary. One might even wonder whether the incorporation of some states to regional human rights mechanisms might in some ways “normalize” these moments of intervention and criticism. But even where they don’t produce systemic change, such interventions do not pass unnoticed and can provide some support for those who press for greater respect of human rights or incorporation of universal standards into domestic law. And sometimes these rulings can impel further alignment with more generally held democratic norms where the political process hit a plateau.

Teitel’s recommendation that regional courts take into consideration whether some deference to transitional justice processes is due, while pragmatic, perhaps misses the point that whatever their function was at their moment of inception, these courts are not serving only transitional ends. The European Court of Human Rights, for example, mostly regulates mature democracies, and undue deference to the transient political circumstances of one state creates normative license for others as well. A regional court may not be able to disturb a self-amnesty law in a given country, but it can discourage that law from having wider recognition as a legitimate act of a sovereign democracy. The repertoire of transitional justice is likely to remain broader than the jurisprudence of human rights courts, which serve a different end, and a different pace.

The Incredible Shrinking Climate Agreement?

by Daniel Bodansky

[Dan Bodansky is the Foundation Professor of Law and Faculty Co-Director of the Center for Law and Global Affairs at the Sandra Day O’Connor College of Law at Arizona State University. He is in Paris for the climate change negotiations. This is the fourth in a series of updates both from the U.S. and from Paris. Professor Bodansky has consulted for the government of Switzerland and the Center for Climate and Energy Solutions (C2ES) in relation to the Paris Summit. However, he is writing in his personal capacity and the views expressed do not necessarily represent those of the Swiss government or C2ES.]

“Tomorrow and tomorrow and tomorrow creeps in this petty pace from COP to COP.” For many, that might be the slogan of the UN climate change regime. Or, to mix literary metaphors, the COPs are reminiscent of Sartre’s No Exit, where hell consisted of being locked in a room talking to the same small group of people for eternity.

Paris is the opportunity to prove the skeptics wrong – to show that the climate change regime can take a real step forward, rather than just creep along from COP to COP. But whether it will succeed in doing so remains an open question.

First, the good news. Paris is definitely one of the best-organized COPs ever – the French have done a fantastic job. And the mood, perhaps not coincidentally, is also good, totally unlike the poisonous atmosphere in Copenhagen, where some countries sought to systematically undermine the Danish Presidency. In contrast, one hears nothing but praise for the French team’s handling of COP21. Instead of angry protesters outside the venue, people are handing out apples, as a taste of biodiversity.

Moreover, the text is gradually being streamlined to a more manageable size. Parisagreement.org, a group based at UC San Diego, have been tracking the number of brackets and options in each successive iteration of the negotiating text. According to their figures, the number of brackets in the December 5 text has shrunk by 45% from the November 10 text, and the number of options by 60%. Of course, their work reminds me a bit of the Monty Python skit in which John Cleese compares the difficulty of Shakespeare’s plays in terms of the number of words they contain: Hamlet has 8262, Othello has 941 words fewer, and so forth. But then he adds, “Ah well, I don’t want you to get the impression it’s just the number of words … I mean, getting them in the right order is just as important.” Something similar could be said of brackets; it’s not just the number, it’s also a matter of whether they reflect real differences or are just negotiating ploys. That said, I do think it’s fair to infer that the shrinking number of brackets and options reflects progress. And I remain optimistic that there will be an agreement this week in Paris.

The question is what will survive the negotiating process and make it into the agreement. Although the text is in better shape than many expected and the number of crunch issues is relatively manageable, states continue to push proposals that have no prospect of being accepted, in an effort to gain negotiating leverage. So progress remains slow.

The political imperative of reaching a deal gives tremendous leverage to potential naysayers. The usual solution, when time is running out, is to cut and cut and cut, until the outcome doesn’t push any country past its comfort zone. Developing countries want strong provisions on finance and differentiation, while developed countries want more modest provisions. Conversely, developed countries want strong provisions on transparency and updating (to promote progressively higher mitigation ambition), while the big developing countries do not. How to bridge these differences? The easiest solution is to trade weak provisions on finance and differentiation for weak provisions on transparency and updating.

Even if this is how the end game plays out – and that is, of course, by no means a foregone conclusion – I don’t think it would be fair to characterize the Paris process as a failure. Paris has served as a catalyst both for national governments and for sub-national and non-governmental initiatives. It has prompted more than 185 countries to put forward INDCs, which would reduce emissions by an estimated 4-8 gigatons below business as usual by 2030, according to a recent report by UNEP. It has led to a groundswell of activities by cities, regions, and companies. And it has spawned initiatives like Mission Innovation, announced last week by President Obama, President Hollande, and leaders from 18 other countries, who pledged to double their clean energy R & D over the next five years, as well as the related private initiative, the Breakthrough Energy Coalition, led by Bill Gates. So, in many ways, Paris is already a success. Nevertheless, the international agreement that the Paris process is supposed to produce is also a key ingredient. If the INDCs submitted by countries aren’t bolstered by an agreement with strong provisions on transparency and ambition, then I think Paris will be a lost opportunity to show that the UN process can do more than creep – that there’s a way out of the room within which the negotiators have been locked.

Success in the Paris Climate Negotiations in Broader Context

by Hari Osofsky

[Hari Osofsky is a law professor, faculty director of the Energy Transition Lab, and director of the Joint Degree Program in Law, Science & Technology at the University of Minnesota. She is serving as chair of the American Society of International Law’s observer delegation at the 2015 Paris climate change negotiations. Any views expressed are those of the author and do not represent the views of either the University of Minnesota or the American Society of International Law.]

I appreciate the opportunity to guest blog with Opinio Juris while at the Paris climate change negotiations this week. I will aim in my blogs to complement Dan Bodansky’s excellent assessment of the negotiations among state parties by examining the broader context of what would be required to address climate change adequately and the activities by other key stakeholders.

From my observation of the first Comité de Paris and hallway conversations on Monday, December 7, the parties still seem on track to reach some sort of agreement in Paris, though perhaps not by the Friday deadline. While there are certainly some differences yet to be resolved, the tone appears to be unusually cooperative at this stage according to those who have attended many of these negotiations.

However, even if the agreement contains reference to the need to keep warming less than 1.5 degrees, which appears increasingly likely, the state parties are highly unlikely to actually achieve that with their current commitments. As one civil society participant from Latin America remarked to me yesterday, the key question is whether we hold warming at 3 or 4 degrees. While I certainly hope he is wrong, we are not on track, even is these negotiations successfully conclude, to mitigate at the levels that scientists say are needed. And as I have analyzed in forthcoming articles with Jackie Peel  and Hannah Wiseman, even if we can find ways to more constructively address energy partisanship in the United States, the Clean Power Plan will involve a complex integration of an environmental cooperative federalist law with a largely state- and regionally-based energy system.

So how do we bridge the gap between what negotiations among nation-states can achieve and what is needed? Two key pieces of that puzzle are subnational governments and the private sector (particularly corporations and investors), and my blogs this week will focus on some of their activities here.

In the process, I will also try to convey, for those who have not attended international negotiations like these, the concentric circles of activity taking place here, with access limitations between each ring. At the core are the nation-states negotiating, and even some of those meetings are only open to subsets of those negotiators. A key concern raised in the Comité de Paris by several state parties on Monday night was the need for more transparency and inclusion in the informal facilitated streams taking place this week to try to bridge differences. Outside of that are official observers, who can gain access to only a very limited set of the negotiations but are able to enter the “Blue Zone,” which contains the negotiating spaces and many of the high-level side events. Outside of the restricted space, a hall in Le Bourget and venues around Paris contain events open to the many people who are here without access passes.

As I move between sessions in the “Blue Zone” space, the people around me exude a sense of being rushed and busy with important tasks as they race among meetings and cluster in small groups in hallways. I am continually reminded of an observation by Sheila Watt-Cloutier, the-chair of the Inuit Circumpolar Conference, when she presented  at the climate change negotiations in 2005, the year that the Inuit submitted their petition to the Inter-American Commission on Human Rights claiming that U.S climate change policy violated their rights:

I have attended three COPs. People rush from meeting to meeting arguing about all sorts of narrow technical points. The bigger picture, the cultural picture, the human picture is being lost. Climate change is not about bureaucrats scurrying around. It is about families, parents, children, and the lives we lead in our communities in the broader environment. We have to regain this perspective if climate change is to be stopped.

While many at these negotiations clearly have that bigger-picture focus, I think that continually reminding ourselves of what all these legal conversations are really about is critical. Achieving an agreement that goes farther than anything that preceded it at Paris would certainly be a form of success, but ultimately we only succeed if we limit human suffering and ecosystem damage—and develop new opportunities—through mitigating and adapting adequately.

Transitional Justice and Judicial Activism Symposium: Introduction

by Ruti Teitel

[Ruti Teitel is the Ernst C Stiefel Professor of Comparative Law, New York Law School and the author of Globalizing Transitional Justice (OUP paper2015).]

I am very pleased to participate in this Opinio Juris roundtable on my just-published article Transitional Justice and Judicial Activism: A Right to Accountability? (.pdf), and particularly to engage with Dinah PoKempner, Professors Cesare Romano, Chandra Sriram and others who have offered such thoughtful and probing observations on my article.

The article grows out of a multi-year ongoing project that examines on the jurisprudence pertaining to states undergoing political transition or dealing with unresolved justice issues from prior transitions. In this particular essay, the emphasis is on transnational human rights jurisprudence, notably that of the Inter-American Court of Human Rights and the European Court of Human Rights. These tribunals, sometimes in dialogue with each other, have evolved, through interpretation of existing legal instruments, an approach that establishes what I term a “right to accountability,” an entitlement of victims of human rights abuses by the state to the investigation and prosecution of these offences, as well as various remedies for past failures of accountability. The result is to frame transitional justice in terms of human rights, with an emphasis on those who have suffered from human rights abuses particularly in conflicts of the past.

Beginning with the Inter-American Court decision of Velasquez Rodriguez, the Latin American case law has been highly contextualized to the special challenge of dealing with those human rights abuses characteristic of the “dirty war,” especially disappearances. It is often implied that no less than criminal law punishments can satisfy demands for accountability. Thus, as I explore in the article, these judgments cannot help but collide, in many contexts, with approaches to transitional justice that emphasize social reconciliation, or social peace. Examples include various forms of amnesty in Peru, Chile and Uruguay that can go back as far as the 1980s, and that are put in question by the right to accountability approach. Most recently, the Inter-American Court embraced a challenge to amnesty practices in Brazil that had been the result of a process of open democratic deliberation and freely arrived at and supported by wide number of political actors in that country including its Supreme Court.

The pressing question that is the articles focus becomes is the legitimacy of such judgments particularly after the passage of significant time, and where there had been comprehensive processes of transitional justice on a case by case basis, including repair of victims, and some form of arrival of truth but nevertheless something falling short of individualized criminal accountability and punishment.

The tension between domestic ownership of transitional justice and internal political compromises that it produces and the rights based approach may point to the need to qualify or relativize the right to accountability so conceived in light of important normative considerations and political factors, which I elaborate in the Article, such as first and foremost the relevance of context and capacity, the strength/weakness of the relevant state, the degree of compliance/impunity; ie thinking about the relevant rights fulfillment not in dichotomous terms but rather in terms of what could be seen as a “continuum of accountability.” (See p 414.) I argue for “greater care …in intervening where some accountability process has started….There may be a number of political and institutional reasons at play and ideally the court should have an appreciation of these reasons before deciding whether and how to intervene.” Id.

A related approach would be to resort to the concept of “complementarity,” associated most notably with the exercise of jurisdiction by the ICC. The question is whether complementarity, deference to domestic processes can be justified where there is no lack of ability or willingness to prosecute but there has been a conscious inclusive democratic decision to prioritize other forms of accountability than full or conventional criminal sanctions.

Overall, my stance is that human rights tribunals need to develop techniques of adjudication that permit a constructive dialogue with domestic political and legal institutions and practices of transitional justice, a dialogue sensitive to context and the considerations that affect the relative legitimacy of transnational tribunals and domestic political and legal actors in addressing questions of justice related to political conflict.

Symposium on Ruti Teitel’s “Transitional Justice and Judicial Activism: A Right to Accountability?”

by Chris Borgen

This week it is our pleasure to host a symposium on Professor Ruti Teitel’s article Transitional Justice and Judicial Activism: A Right to Accountability? (.pdf).  After an initial post by Professor Tetitel, we will have comments by Dinah PoKempner of Human Rights Watch, Professor Cesare Romano of Loyola, and Professor Chandra Sriram of the University of East London.

We are looking forward to the discussion!

The International Criminal Court’s Assembly of States Parties Meetings: Challenges to the Work of the Court

by Jennifer Trahan

[Jennifer Trahan is Associate Clinical Professor, The Center for Global Affairs, NYU-SPS. She attended ICC ASP 14 on behalf of the American NGO Coalition for the ICC and the American Branch of the International Law Association International Criminal Court Committee. The opinions expressed are not necessarily those of AMICC or the ABILA.]

From November 18-27, delegates of states that are parties to the International Criminal Court’s Rome Statute, as well as NGOs and delegates of non-State Parties gathered in The Hague for the 14th annual Assembly of States Parties meetings.

While much of the ASP’s business carried on as usual, two threats to the Court’s work emerged.
The first came in the form of a Kenyan proposal seeking an interpretation or reaffirmation that Rule 68’s amendment made at the ASP in 2013 would not apply retroactively. On its face, the measure Kenya proposed looked harmless enough. The ASP is indeed the body before which amendments to the ICC’s Rome Statute and Rules of Procedure and Evidence are to be brought after prior presentation to the New York working group on amendments.

But the unstated purpose behind Kenya’s proposal appeared to relate to the pending cases against Kenyan Deputy President William Ruto, and Joshua Arap Sang. Each is charged with crimes against humanity in connection with post-election violence in Kenya’s 2007-8 presidential elections in which over 1,000 persons died. (The measure may also have been indirectly aimed at insuring that a prior case against Kenyan President Uhuru Kenyatta – as to whom the charges have been withdrawn without prejudice – will not be reinstated.) A likely goal is to ensure that prior recorded witness testimony of witnesses who subsequently became “unavailable” could not be used in evidence. Given serious and credible allegations of witness tampering and disappearances—there are pending proceedings related to attempts to corrupt ICC witnesses in the Kenya cases—the proposal could be aimed at keeping out information potentially relevant to pending trials. To make matters worse, the issue of whether the Rule 68 amendment applies retroactively is currently pending before the ICC’s Appeals Chamber in the Ruto & Sang case.

In oral remarks responding to Kenya’s proposal on Thursday November 19 and then again in the closing plenary session, various States made strong statements about the need to preserve the Court’s independence and not interfere in matters pending before the Court. Yet, it was disheartening to later see delegates willing to attempt to mollify the Kenyan delegation by negotiating language favorable to the Kenyan position. If a matter really is sub judice, there should be no ASP role, period. (The only bright spot is that the language negotiated was included in a final report summarizing discussions of the Assembly, and not in a formal assembly resolution.) What the Court will eventually make of all of this, is, of course, another matter – as the judges do not necessarily need to accept even Rule or Statutory amendments from the ASP if they deem them inconsistent with the Rome Statute or beyond the ASP’s authority. Moreover, judges would likely accord language from a report little weight, if any.

Kenya’s second proposal was to develop an ad hoc mechanism of independent jurists to advise the Prosecutor in her selection of Prosecution witnesses. There is absolutely no precedent for such a measure, which clearly is aimed at stymying the Prosecutor’s work. Such an attempt to interfere with Prosecutorial independence appropriately met with little enthusiasm from other state delegations.

The theatrics of Kenya’s presentation of these proposals on November 19 were amplified when the more than 80-person Kenyan delegation applauded loudly to all of Kenya’s statements. Most of the rest of the room then applauded the interventions by other states who insisted on the Court’s independence, and not interfering in matters pending before the Court. The effect was somewhat like an audience at a sporting event, cheering their two respective teams. It seemed unseemly to say the least, and one can only wonder at the choice of allowing a delegation to be that large. Most other States sent at most a handful of representatives.

Another threat to the Court’s work was far more ordinary and predictable but also serious: seven States Parties holding out not to give the Prosecutor the budget she requested as necessary to do her work. With the Court active in 8 situation countries, with 23 pending cases, and preliminary examinations across the globe, now is not the time to nickel and dime the Prosecutor of the world’s worst atrocity crimes. The Court has a bigger docket than it ever has had before. The blame here also should be extended to the U.N. Security Council, which referred two situations to the Court (those in Libya and Darfur) but refused to pay for them, and has failed to insure that any of the outstanding arrest warrants or other transfers related to the cases are executed. At the ASP, the Prosecutor had requested a budget increase of 17%, but only received a 7.1% increase. If she now has to curtail meritorious investigations, which is anticipated, we have only States to blame, and not the Prosecutor.

These ASP gatherings of NGO’s and State delegates from around the world are in some ways heartening – to see a global network of individuals committed to international criminal justice, and the prosecution of the worse atrocity crimes through the ICC. Complementing the formal sessions are numerous “side events” that range the gamut from attempting to ensure justice locally in Africa, to strengthening the ICC’s work related to victims, and attempting to ensure accountability for crimes in Syria. Yet, the ASP meetings are also disheartening to see such attempts at political interference in the Court’s work (and budgetary shortsightedness). It is also disappointing, although perhaps understandable, to see States attempting to pacify delegates in order to avoid having their State potentially withdraw from the Rome Statute. One wonders whether that Faustian bargain is worth striking.

Crunch Issues in Paris

by Daniel Bodansky

[Dan Bodansky is the Foundation Professor of Law and Faculty Co-Director of the Center for Law and Global Affairs at the Sandra Day O’Connor College of Law at Arizona State University. He is in Paris for the climate change negotiations. This is the third in a series of updates both from the U.S. and from Paris. Professor Bodansky has consulted for the government of Switzerland and the Center for Climate and Energy Solutions (C2ES) in relation to the Paris Summit. However, he is writing in his personal capacity and the views expressed do not necessarily represent those of the Swiss government or C2ES.]

In an earlier post, I expressed cautious optimism that the Paris conference will succeed in adopting a legal agreement that requires countries to formulate and submit emission reduction plans, provides for international transparency and review, and establishes a process for countries to periodically ratchet up their efforts. But although the broad outlines of the agreement have been apparent for several years, a number of important issues remain to be resolved, on which the conference could still founder.

Here’s a brief summary of the “crunch” issues:

• How to reflect the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC)?

The issue of differentiation has been one of the most controversial since the inception of the UN climate change regime, and plays out across all of the different elements of the Paris agreement: mitigation, adaptation, finance, and transparency. It’s clear that the Paris agreement will move away from the rigid differentiation between Annex I and non-Annex I countries found in the Kyoto Protocol, towards a more global approach. But will any vestige of the Annex I/non-Annex I dichotomy remain?

Developed countries mostly argue that the concept of nationally determined contributions (NDCs) implies self-differentiation and that this self-differentiation is sufficient. But many developing countries would like some continuation of the categorical, annex-based approach found in the UNFCCC and the Kyoto Protocol. The 2014 US-China joint announcement added the phrase “in light of different national circumstances” to the principle of CBDR-RC, apparently to give it a more dynamic quality. This formulation was included in the Lima Call for Action (.pdf), and will almost certainly find its way into the Paris Agreement. But a general reference to CBDR-RC will likely not be enough to satisfy developing countries, so expect to see some additional language on differentiation in particular articles, for example, those on mitigation and transparency.

I don’t see the US and other developed countries accepting a reference in the Paris agreement to the UNFCCC annexes, which they view as outmoded, but my guess is that negotiators will find some language to bridge the gap – for example, in the context of mitigation, a principle of progression, which provides that countries that have previously pledged absolute economy-wide targets should continue to do so and that all countries should aim to do so over time. This formulation, in effect, differentiates between Annex I countries (which all pledged absolute, economy wide emissions targets in Copenhagen) and non-Annex I countries, without any explicit reference to the annexes, and thus might be acceptable to both sides.

• Whether to include a long-term decarbonization goal?

In Copenhagen, states agreed to a goal of limiting climate change to no more than 2° C. There is considerable – but not universal – support for supplementing this goal with a long-term decarbonization goal, like that included in the G-8 Leaders Statement last June, to provide a signal to business and investors. Many countries would like to include a decarbonization goal in the Paris agreement itself, but if consensus cannot be reached to do so, a possible fallback would be to include the goal in the Conference of the Parties (COP) decision that adopts the Paris agreement, which would give the goal a slightly lesser political status.

• Whether to include a commitment that parties implement their nationally determined contributions (NDCs)?

A central issue in the negotiations has been what commitments to include with respect to NDCs. There is broad agreement to include procedural commitments – for example, to formulate, submit, and periodically update NDCs. And even countries that seek to make NDCs legally binding seem to accept that the agreement will not commit countries to achieve their NDCs (thus distinguishing the Paris agreement from the Kyoto Protocol). But the European Union and some developing countries wish to include a commitment relating to implementation of NDCs.

A duty to implement, as compared to a duty to achieve, is an obligation of conduct rather than result. But if the Paris agreement contained a straightforward obligation on parties to implement their NDCs, then the difference between the two approaches appears small, since, arguably, the test of whether a state has implemented its NDC is whether it has achieved its NDC. This has led to a search for softer formulations of the commitment to implement: for example, a commitment to adopt measures “aimed” or “intended” to implement a country’s NDC, or a commitment to adopt implementing measures “related to” a country’s NDC. The trick is to find some formulation that Continue Reading…

Keeping up with the UN’s On-Line Lectures on International Law

by Duncan Hollis

We wanted to pass along a quick update from our friends at the UN Office of Legal Affairs who continue to build out an on-line international law research portal that can hopefully have lasting impact:

The Codification Division of the UN Office of Legal Affairs recently added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to an unlimited number of recipients around the world free of charge.

The latest lectures were given by Sir Michael Wood on “International Law and the Use of Force: What Happens in Practice?”, Professor Djamchid Momtaz on “La sécession en droit international” and by Professor August Reinisch on “The Evolution of WTO Dispute Settlement”.

On the Legitimacy of the Settlements: A Legal and Historical Perspective

by Lorenzo Kamel

[Dr Lorenzo Kamel is Senior Fellow at IAI and Research Fellow at Harvard’s CMES]

It would seem unnecessary in 2015 to refer to the League of Nations or the Mandate for Palestine when discussing the legal status of the Palestinian territories. Yet, in recent years several scholars are resorting to these issues to provide a legal justification for the construction/enlargement of outposts/settlements and the indirect denial of the right of the Palestinian people to self-determination. This article aims to deconstruct these approaches and to shed light on the selective use of history and international law that underpins them.

The 89 pages of the Levy Report, released on 9 July 2012 by a special committee appointed in late January 2012 by PM Netanyahu to investigate whether the Israeli presence in the West Bank is to be considered an occupation or not, clarified that “with the establishment of the United Nations in 1945, the principle of recognizing the validity of existing rights of states acquired under various mandates, including of course the rights of Jews to settle in the Land of Israel by virtue of the above documents, was determined in article 80 of its charter”.

In a video entitled “the Legal Case for Israel,” international lawyer Eugene Kontorovich pointed out that “up to 1948 all this area [present-day Israel and the Palestinian territories] was Palestine reserved as a Jewish State by the League of Nations Mandate […] the legality of the Mandate jurisprudence cannot be changed.” More in general and according to an interpretation held by a growing number of scholars and by most of Israel’s right-wing parties, the preamble as well as Article 2 of the Mandate secured the establishment of the Jewish National Home on, in Howard Grief’s words, “the whole country of Palestine, not a mere part of it.” (H. Grief, The Legal Foundation and Borders of Israel under International Law (Jerusalem: Mazo, 2008), p. 106.) It would follow that, as argued by the late Eugene Rostow, “the Jewish right of settlement in the whole of western Palestine – the area west of the Jordan – survived the British withdrawal in 1948”.

But to resort to the League of Nations and the British Mandate for Palestine might be counterproductive for those committed to finding legal justifications for the construction of outposts, or the enlargement of settlements, in the Palestinian territories. The term “national home,” in fact, had no mutually agreed-upon meaning or scope and the British government was under no definite obligation, since the Mandate made any Jewish immigration subject to “suitable conditions” and contained safeguards for the rights and position of the non-Jewish communities.

True, in 1919 prominent British official Jan Christiaan Smuts, a leading figure in Lloyd George’s War Cabinet and an open supporter of racial segregation, envisaged the rise of “a great Jewish State.” Lloyd Gorge himself pointed out that “it was contemplated that when the time arrived for according representative institutions in Palestine, if the Jews had meanwhile responded to the opportunity afforded them by the idea of a National Home and had become a definite majority of the inhabitants, then Palestine would thus become a Jewish Commonwealth”.

On the other hand, the first Attorney General of Palestine, “lifelong Zionist” Norman Bentwich, contended that “a national home, as distinguished from a state, is a country where a people are acknowledged as having a recognized legal position and the opportunity of developing their cultural, social and intellectual ideals without receiving political rights”.

This position was also consistent with the one expressed a few years earlier by the general secretary and future President of the Zionist Organization Nahum Sokolov. He represented the Zionist Organization at the 1919’s Paris Peace Conference, where made it clear that the

Continue Reading…

Reminder: Deadline for the Fifth Annual Junior Faculty Forum

by Kevin Jon Heller

JFF2016_CoverOnlyJust a reminder that the deadline for applications for the Fifth Annual Junior Faculty Forum for International Law, which will be held at NYU from June 27-29, 2016, is fast approaching. Applications are due December 15. Those who are keen to make an application can find the details of the application procedure set out here. As always, I highly recommend that young scholars apply!

State Department Confirms that Senators Rubio and Cotton were Right, Professors Ackerman and Golove were Wrong

by Julian Ku

I can’t resist one final post to complete an earlier discussion between myself and professors Bruce Ackerman and David Golove on the legal status of the Joint Comprehensive Plan of Action (JCPOA), also known as the Iran Nuclear Deal.  As several others in the blogosphere have noted, the U.S. State Department has confirmed, in a letter to Congress, the following:

The Joint Comprehensive Plan of Action (JCPOA) is not a treaty or an executive agreement, and is not a signed document. The JPCOA reflects political commitments between Iran and the P5+1 (the United States, the United Kingdom, France, Germany, Russia, China) and the European Union. As you know, the United States has a long-standing practice of addressing sensitive problems in negotiations that culminate in political commitments.

(Thanks to Michael Ramsey at the Originalism Blog and Matthew Weybrecht at Lawfare for noting and posting this letter).

This letter confirms that, contra the argument advanced by Professors Ackerman and Golove in the Atlantic and on this blog, the JCPOA is NOT a congressional-executive agreement authorized by Congress when it passed the Iran Review Act last spring.  Rather, the entire JCPOA is a “political commitment.”

As Professor Ramsey correctly notes, this means that Senator Marco Rubio was quite right in saying that, if elected President, he could withdraw the JCPOA without violating U.S. or international law.  It also means that Senator Tom Cotton was quite right, as a practical matter, in his famous open letter saying that the next US president could withdraw the agreement.  And it means (less importantly in the grand scheme of things but important for me), that I was right in saying that the JCPOA is not a congressional-executive agreement.

The larger issue is this: If the President is going to go around making political commitments, that’s fine.  But he should be clear that this is what he is doing so that smart people like Professors Ackerman and Golove don’t get confused into thinking he is making a binding agreement..  As Dan Bodansky explains, the U.S. is going to make the Paris Agreement a political commitment (at least with regards to emissions reductions).  As I’ve been arguing here and elsewhere, the U.S. should be clear about what it is doing in Paris, and what it is not.

The Legal Character of the Paris Agreement: A Primer

by Daniel Bodansky

[Dan Bodansky is the Foundation Professor of Law and Faculty Co-Director of the Center for Law and Global Affairs at the Sandra Day O’Connor College of Law at Arizona State University. He will be in Paris for the climate change negotiations. This is the second in a series of updates both from the U.S. and from Paris. Professor Bodansky has consulted for the government of Switzerland and the Center for Climate and Energy Solutions (C2ES) in relation to the Paris Summit. However, he is writing in his personal capacity and the views expressed do not necessarily represent those of the Swiss government or C2ES.]

Confusion reigns supreme about the legal character of the Paris agreement.  Last month, Secretary of State Kerry made waves in Europe when he said that the Paris agreement would “definitely not be a treaty.”  This prompted President Hollande to respond, “If the deal is not legally binding, there is no accord, because that would mean it’s not possible to verify or control commitments that are made.”  And just yesterday, the New York Times reported that the Paris agreement will not be “a legally binding treaty” that needs ratification by governments to have force, but will instead consist of “voluntary plans” that “avoid the legal definition of a treaty.”

So here is a quick primer on the legal character of the Paris Agreement:

First, there appears to be no question that the agreement will be a “treaty” within the meaning of the Vienna Convention on the Law of Treaties, that is “an international agreement concluded between States in written form and governed by international law” (VCLT art. 2.1(a)). As the VCLT expressly states, whether an agreement constitutes a treaty does not depend on what the agreement is called.  Rather, it depends on whether the agreement’s contents manifest an intent by the parties that the agreement be governed by international law. The current negotiating text includes final clauses addressing such issues as signature, ratification, entry into force, and depositary, which make sense only if the parties wish to make the agreement a treaty under international law.

Second, although the VCLT provides that agreements are binding upon the parties and must be performed by them in good faith (VCLT art. 26), not every provision in a treaty necessarily creates a legal obligation, the breach of which entails non-compliance. Often, treaties contain a mix of mandatory and hortatory elements.  For example, the emissions target set forth in Article 4.2 of the UN Framework Convention on Climate Change was expressed as an “aim.”  So, even though the Paris agreement will be a treaty, not every element of it need be legally binding on the parties.  For example, countries’ “nationally-determined contributions” (NDCs) – that is, their emission reduction targets – could take the form of a political aim rather than a legal obligation.

Third, the term “treaty” has a narrower meaning in US law than in international law, referring to agreements that the President sends to the Senate for advice and consent to ratification under Article II of the Constitution.  The vast majority of treaties in the international sense are not adopted as Article II “treaties;” rather they are adopted as “executive agreements,” in most cases with the approval of Congress, but in some cases by the President acting alone.  So even if the Paris agreement is a treaty under international law, it need not be adopted by the United States as a “treaty” under Article II of the Constitution.  (For more on the issue of US adoption, see Julian Ku’s recent post, A Treaty or Not a Treaty.)  This may have been what Secretary Kerry meant when he said that the Paris agreement would “definitely not be a treaty.”

Fourth, whether the Paris agreement is adopted by the United States as an Article II treaty, with the advice and consent of the Senate, or as an executive agreement, by the President acting alone, would not affect its character under international law or the ability of a future President or Congress to withdraw.  Regardless of the procedure for adoption, as a matter of international law, the right of the United States to withdraw would be governed by the agreement’s withdrawal clause, and, as a matter of US law, US participation could in practice be terminated by a future president through executive action or by Congress through the enactment of a later-in-time statute.

Finally, although most people, including President Hollande, assume that the Paris agreement will be more effective if countries’ NDCs are legally binding, this is not necessarily the case.  The effectiveness of an international regime is a function of three factors:  (1) the ambition of its commitments; (2) the level of participation by states; and (3) the degree to which states comply.   Those who argue for the importance of a legally binding outcome in Paris focus primarily on compliance.  But the legally binding character of parties’ NDCs could also affect ambition and participation, potentially in negative ways.  Moreover, even if the legally-binding character of a provision does enhance compliance – a plausible hypothesis but one that has resisted empirical demonstration – other factors can also promote compliance, including transparency and accountability mechanisms, which make it more likely that poor performance will be detected and criticized, thereby raising the reputational costs for the state concerned.  Contra President Hollande, these verification procedures do not depend on the legal character of parties’ NDCs; non-binding provisions can also be subject to a strong system of monitoring, reporting and verification.   So the question is how much additional compliance would result from making NDCs legally binding, and whether this value-added for compliance might be outweighed by a diminution in participation and/or ambition.

For more on the legal status of the Paris agreement, see Bodansky and Rajamani, Key Legal Issues in the 2015 Climate Negotiations (Center for Climate and Energy Solutions 2015), Bodansky, Legally Binding vs. Non-Legally Binding Instruments, in Scott Barrett, Carlo Carraro & Jaime de Melo, eds., Towards a Workable and Effective Climate Regime (VoxEU eBook 2015), and Bodansky, Legal Options for US Acceptance of a New Climate Change Agreement (Center for Climate and Energy Solutions 2014), from which this post is drawn.