Archive for
February, 2018

Submit to the Harvard International Law Journal!

by Kevin Jon Heller

The Harvard International Law Journal has just posted a call for their 60th anniversary volume. Here is the relevant text:

The Harvard International Law Journal is now accepting article submissions for Volume 60. We seek to publish innovative, original scholarship that makes a significant contribution to the field of international law. We welcome submissions from legal scholars, practitioners, and doctoral degree candidates on topics of private or public international law and related fields, including interdisciplinary work.

For our 60th Anniversary volume, as we reflect on our past and look forward, the Journal is particularly interested in publishing articles about the frontiers of international law. Frontiers represent new horizons and new perspectives; but, they can also reveal limits, gaps, and boundaries. We intend the broad line of inquiry for this issue to include emerging issues in international law, interactions between existing bodies of international law, limits of international law, the influence of new technologies or scientific understandings on international law, and interdisciplinary perspectives on international law and governance.

I’ve been fortunate enough to publish two articles with HILJ, including one — my “What Is an International Crime? (A Revisionist History)” article — that will be in print very soon. I have nothing but good things to say about working with the journal. Not surprisingly given the caliber of the students, the journal provides excellent feedback that will make your article better. And if you’re particularly fortunate, HILJ will organise an online symposium about your article. They solicited responses to my “A Sentence-Based Theory of Complementarity” article from Carsten Stahn and Darryl Robinson. And Mia Swart, Astrid Reisinger Coracini, and Alejandro Chehtman will be responding to my new one. (I’ve also been given an opportunity to reply.) Being able to carry on a virtual conversation about your work is a rare treat.

As I said, submit to HILJ! (Yes, double entendre intended.)

Kenyan Appeals Court Strongly Affirms That al-Bashir Cannot Claim Immunity As a Defense Against the ICC’s Arrest Warrants

by Tim Fish Hodgson

[Tim Fish Hodgson is a Legal Adviser for the International Commission of Jurists in Johannesburg, South Africa.]

A Kenyan Court of Appeal decision handed down last week has, once again, reaffirmed the Kenyan government’s international obligation to arrest Sudanese President Omar al-Bashir should he ever return to Kenya. The Court concluded “the Government of Kenya by inviting al Bashir to Kenya and failing to arrest him acted not only with complete impunity but also in violation of its international obligations.”

The African Union and some individual States such as South Africa, Uganda and Kenya appear to have serious concerns relating to what they perceive the conflicts between their obligations to arrest al-Bashir under the Rome Statue of the ICC and their obligation to respect his diplomatic immunity as a Head of State. This apparent conflict is clearly expressed by both the African Union’s ‘Withdrawal Strategy Document’ and the draft International Crimes Bill introduced by the Minister of Justice to South African Parliament. But the greatest testament to this discomfort is these and other states repeated failures to arrest al-Bashir despite their international legal obligations and pressure from local, regional and international human rights defenders.

The Kenyan Appeal Court recognized the “rare geopolitical predicament” faced by the Kenyan government in balancing its “focal role” in Sudan and “remaining true the African Union resolution not to cooperate with the [ICC]” with its obligations in terms of the international criminal law which is has domesticated in its own International Crimes Act.

Nevertheless, grounding its judgment in the historical foundations of international criminal law, the Court quotes with approval the Nuremberg Tribunal’s observation that “perpetrators cannot shelter themselves behind their official positions in order to be freed from punishment in appropriate proceedings”. The Court notes that when a state commits acts which violate ius cogens norms it “waives any rights to immunity” and concludes that, similarly, “we have no doubt that an exception to immunity exists in cases where the individual is responsible for crimes against humanity”. This, it reasons is because “acts amounting to international crimes of individuals cannot be considered legitimate performance of official functions of State” capable of attracting immunity in the first place.

In taking this approach the Kenyan Court of Appeal deftly acknowledges that despite the potential political conflicts that there is no real legal conflict between provisions on the Rome Statute with respect to immunity. This same approach was supported by the International Commission of Jurist’s submission to South African Parliament signed by six former Constitutional Court Justices and Navi Pillay the former United Nations High Commissioner for Human Rights. In a judgment that has received praise from international law experts John Dugard and Guénaël Mettraux no less, the Supreme Court of Appeal of South Africa too concurred with this approach, noting that allowing immunity to prevent arrest in such situations “would create an intolerable anomaly”.

Highlighting the irony that Kenya’s government disregard of its international obligations in inviting al-Bashir to the inauguration of Kenya’s progressive Constitution, the Court also notes that the government’s actions violate a specific provision of the Kenyan Constitution itself. Article 143(4) of the Constitution reads “[t]he immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity”.

Despite these categorical statements of Kenya’s legal obligations to arrest al-Bashir pursuant to the Kenyan Constitution, the International Crimes Act and the Rome Statute of the ICC, the Court overturned the provisional arrest warrant for al-Bashir issued by the High Court on the ground the requisite urgency no longer existed at the time the order was issued.

This, it reasoned, is because section 131(1)(c) of Kenya’s International Crimes Act explicitly permits the issuing of a provisional warrant only if “it is necessary or desirable for an arrest warrant to be issued urgently”.

This aspect of the Court’s judgment, which is inconsistent with the Rome Statute, strongly implies that future applications relating to al-Bashir’s arrest would need to be heard and determined urgently before or during a visit to the country. This despite the Court’s own observations that the Kenyan government remains bound by its international obligation to cooperate with the International Criminal Court by executing warrants the ICC had issued when al-Bashir’s visit in 2010.

Bolstering the possibility of the urgent issue of a provisional arrest warrant in a Kenyan High Court, however, the Court’s decision affirms that human rights organizations such as the Kenyan Section of the International Commission of Jurists have legal standing to approach the High Court requesting the issue of a provisional arrest warrant. This will mean that, as with litigation initiated by the Southern Africa Litigation Centre in South Africa, the Kenyan government’s own continued indifference or deliberate resistance to its international obligations, would not prevent al-Bashir’s arrest should he return to the country.

The judgment of the Kenyan Court of Appeal is of regional and international significance in the face of increasing threats of collective withdrawal of African countries from the ICC. Most particularly, after failing to arrest al-Bashir on a visit to South Africa in 2015, the South African government appears to be charging ahead with its intention to withdraw from the ICC by proposing the enactment of woefully inadequate domestic legislation.

As a decisive statement by an African court this judgment will be useful for human rights defenders, lawyers and judges in South Africa who are consistently accused of lacking regional legitimacy by the government in their attempts to ensure that al-Bashir is arrested and prevent South Africa’s withdrawal from the ICC. In the South African context, it remains to be seen whether newly appointed President Cyril Ramaphosa may change the South African government’s headstrong tune in the face of considerable, consistent and widespread criticism.

Finally, to some the Kenyan Appeal Court’s decision to invalidate the provisional arrest warrant for al-Bashir may appear to provide legitimacy to the Kenyan governments action. Properly read, this is perhaps merely politically astute exercise of its powers and is clearly overshadowed by the Court’s decisive condemnations of the government’s intransigence and strong findings which make absolutely clear that the Kenyan government is obliged to cooperate in al-Bashir’s arrest should he ever return to Kenya.

In terms of 163(4) of the Kenyan Constitution decisions of the Appeal Court may be appealed to the Supreme Court of Kenya if it can be shown that the matter involves the interpretation or application the Constitution or if it is decided that it is a matter of “general public importance”.

Note to Col. Spath: Don’t Worry, Be Happy

by Gabor Rona

[Gabor Rona is a Visiting Professor of Law at Cardozo Law School.]

Just when we thought the Guantanamo Military Commissions could not get any more dysfunctional, this happened: defense lawyers quit the proceedings in the U.S.S. Cole bombing case. Their boss, Marine Brigadier General John Baker supported the move, and for his trouble, was held in contempt, ordered to pay a fine, and was confined to quarters. The Military Commissions’ “Convening Authority,” Harvey Rishikoff, overturned the sentence, but not the contempt ruling. For his trouble, Rishikoff was then fired by Secretary of Defense Mattis, albeit for other possible reasons that have not been made public.

The brick that broke the kangaroo’s back seems to defense counsels’ belief that their private and privileged communications with clients were in fact being monitored by the government.

Air Force Colonel Vance Spath, the man in robes* sitting behind the bench at the Guantanamo military commission’s U.S.S. Cole bombing case is at wit’s end:

“I’m not ordering the Third Reich to engage in genocide. This isn’t My Lai.’ All he was doing was telling the lawyers to listen to him and get back in court, he said. ‘Those are the extent of my orders. Not war crimes, people.”

So reports Amy Davidson Sorkin in the New Yorker.

Col. Spath is wrong, of course. While defense counsel have not directly alleged so in connection with their withdrawal, the military commissions ARE a war crime, just not in the U.S.A.

Note that Common Article 3 of the Geneva Conventions, to which every country including the U.S. is a party, prohibits trials that fail, in the somewhat archaic language of 1949, to provide “judicial guarantees recognized as indispensable by civilized peoples.” Those judicial guarantees are reflected in both human rights law binding on the U.S. (articles 9 and 14 of the International Covenant on Civil and Political Rights) and the law of armed conflict (Article 75 of the Geneva Conventions’ Additional Protocol I. The U.S. is not a party to the Additional Protocol, but has acknowledged that Article 75 is binding customary law in international armed conflict. The U.S. does not acknowledge the same for non-international armed conflict, but the similarity of the judicial guarantee provisions of human rights law, applicable in non-international armed conflict, and Article 75, applicable in international armed conflict, make that stance untenable. See more on the customary status of Article 75 in all armed conflicts here and here.)

The ways in which the Guantanamo military commissions, as part of the Guantanamo detention regime, fail to respect requisite judicial guarantees are well known:

  • Government eavesdropping on attorney-client communications.
  • Denial of speedy trial. The Cole bombing occurred in October 2000. The defendant, Abd al Rahim al-Nashiri, was captured in November, 2002.
  • Denial of right to “confront” (cross-examine) witnesses. This is due to the general admissibility of hearsay, something only exceptionally permitted in U.S. courts.
  • Possible admission of evidence gained through torture. While the military commissions claim to prohibit the use of torture-based evidence, the admission of hearsay and the failure to exclude all statements of the accused resulting from interrogation after torture (e.g., by so-called “clean teams” of interrogators) contradicts the prohibition.
  • Denial of public trial. The public cannot access Guantanamo. Video and audio feeds of the proceedings are on tape delay, permitting government censors to prohibit dissemination of embarrassing evidence, such as that of the defendant’s torture.
  • A corrupt plea-bargaining process. In a normal criminal court, if the accused rejects a plea-bargain offer, he or she goes to trial. If found not-guilty, he or she is free. In Guantanamo, plea-bargains are inherently coercive, since a not-guilty verdict at trial does not guarantee release. It has been said that the only way for military commission defendants to leave Guantanamo is to plead guilty.

Interestingly, all violations of Common Article 3 used to be war crimes under U.S. law. But the War Crimes Act of 1996 was re-written in 2006 to criminalize only certain parts of Common Article 3, rather than all of it. What was left out of the new law? You guessed it, conducting trials that fail to provide “judicial guarantees recognized as indispensable by civilized peoples.” And when did this happen? You guessed it, as part of legislation for the Guantanamo military commissions. The drafters of the new War Crimes Act knew exactly what they were doing, even if most members of Congress didn’t. Why, if they believed that the military commissions were on solid international law and constitutional ground, did they weaken the War Crimes Act this very specific way?

More generally, Col. Spath complained of defense counsel that:

“They don’t follow orders; they don’t follow direction; they don’t obey commission regulations, or rules, or subpoenas, as we saw’ . . . They had exhibited ‘lawlessness’ and ‘contemptuous behavior’; they had ‘scoffed at my authority.”

I have some sympathy for Col. Spath. If he doesn’t know that his military commissions are illegitimate it’s understandable that he’s offended by the behavior of defense counsel.

Another of his complaints recounted in the New Yorker is that defense lawyers wear informal attire in military commission sessions. I’m reminded of the Chicago 7 trial of Vietnam War protesters following the police riots during the 1968 Democratic Convention. A grumpy Judge Julius Hoffman tried in vain to maintain courtroom decorum. But the Hippie, Yippee and Black Panther defendants understood that the only effective way to approach the highly politicized trial was to contest its legitimacy through acts of civil disobedience in the courtroom. One day, one of the defendants, Abbie Hoffman, showed up in black robes!

When defense counsel in the military commissions show up in informal dress, they are, it seems to me, exhibiting the tame military version of Abbie Hoffman and Bobby Seale’s protests in 1968 Chicago. From their sartorial choices to their decision to withdraw from the case, their behavior is not only within an honorable American tradition of challenge to structural injustice, but is also rational, consistent, and indeed, necessary, to the vindication of constitutional and international human rights and law of war rules applicable to the United States.

What’s more important than what binds the Chicago 7 defendants and the Guantanamo defense lawyers is what separates them: the Chicago 7 were being tried in a real court and were under no legal obligation to protest their trial.

The “new and improved” War Crimes Act of 2006 ends with the observation that the crimes listed in the law do not define the full scope of U.S. obligations under Common Article 3 of the Geneva Conventions. In other words, the U.S., and therefore, its military personnel, are still prohibited by international law from operating unfair trials, even though the failure to do so is no longer a war crime. Rather than dissing Colonel Spath, the defense lawyers are doing him a favor by bringing these proceedings to a halt.

*No personal disrespect meant, but I can’t call him “judge.” Military commissions are not courts. The “courtroom” is not a courtroom. The “judge” is not a judge. This is clear to those who understand the pedigree of military commissions. The Supreme Court has recognized that military commissions are procedures “born of military necessity.” Historically, they have been established in war zones and situations of occupation, where normal judicial mechanisms and procedures are not operable. (See also, Ex Parte Milligan.) That cannot be said of the Guantanamo military commissions, which were set up in full view of our well-oiled federal court system, precisely to avoid application of judicial guarantees required in our constitutional courts. The Guantanamo military commissions have nothing to do with military necessity. For that reason alone, they are illegitimate.

U.S. v. Microsoft (Microsoft-Ireland): Implications for International Lawmaking

by Austen Parrish

[Austen Parrish is the Dean and James H. Rudy Professor at Indiana University Maurer School of Law. He is a co-author, with appellate lawyer Carl Cecere and Prof. Anthony Colangelo (SMU Dedman School of Law), of an amicus brief filed in U.S. v. Microsoft.]

Next Tuesday, the U.S. Supreme Court will hear U.S. v. Microsoft. A fascinating and potentially landmark case, it is one in a growing line of transnational cases where the Court has grappled with how new technology affects older laws. Indicative of its potential significance, thirty amicus briefs were filed in the case, including one that I was pleased to help write.

The case began when the federal government obtained a warrant requiring Microsoft to turn over records related to a customer’s email account in a drug trafficking investigation. Microsoft agreed to provide records stored in the United States. It refused, however, to provide communications stored in Ireland. Instead of seeking Ireland’s cooperation or using a Mutual Legal Assistance Treaty designed to address cross-border criminal investigations, the Government took a different tack. Congress, according to the Government, had already granted it—and local and state law enforcement—the power to force Microsoft to seize private emails of foreign citizens, stored on data servers in foreign countries, and import them into the United States. The Government asserts this power exists even when foreign privacy laws prohibit disclosure, and without the need to notify the email’s owner or the country where the emails are stored.

The case has potentially wide-ranging implications. But, on a basic level, at stake is how courts should interpret a statute when technology enables the government to obtain information previously unobtainable. Did Congress, when it enacted the Stored Communications Act in 1986, intend to give local law enforcement the power to seize communications stored overseas? Because it served the warrant at Microsoft’s Washington state headquarters seeking documents under Microsoft’s control, the Government asserts it doesn’t matter that technology now enables what previously would have been prohibited. Microsoft argues, in contrast, that the presumption against extraterritoriality prevents guessing what Congress would have wanted. When Congress enacted the Stored Communications Act thirty years ago, it could not have anticipated seizing emails stored abroad from computers within the U.S. because the internet was in its nascent form, email was just beginning, and no one had conceived of cloud computing. Accordingly, the Court should not assume Congress granted law enforcement this power. This is particularly true, Microsoft urges, because the Act was designed to provide greater privacy protections in light of changing technology, not less.

Worth emphasizing is what this case is not about. The case is not about whether law enforcement should, in certain circumstances, be able to effectuate a cross-border search. It’s not a question of whether the Government needs more tools to investigate transnational crime. And it’s not about whether criminals can evade law enforcement efforts by storing incriminating materials abroad. What the Government seeks could be achieved through the existing MLAT process, through collaboration with Ireland, through new legislation (such as that currently proposed by a bipartisan group of Senators), or through the negotiation of bilateral and multilateral treaties. It’s also not a policy question of what might be a sensible approach if Congress rewrote the statute today. The question is what Congress authorized when it passed the Stored Communications Act. While international comity may ultimately come into play—allowing a court to balance competing sovereign interests when deciding whether to enforce the warrant—that only happens if the Court finds the Act granted the government authority to seize communications stored abroad in the first place.

As set forth in our amicus brief, if the Court is faithful to its past precedent Microsoft should win the statutory argument. To be sure, there’s a number of complicated doctrinal considerations, and I won’t repeat the arguments set out in our amicus brief. In this post, however, I thought I’d highlight how a decision in the Government’s favor could potentially undermine international lawmaking.

Most commentators believe a harmonized, international solution is essential. That’s true for privacy and data law scholars who argue that the “way forward on data extraterritoriality must be an international one.” It’s also true for those writing about coordinated approaches to transnational crime. The question is whether a ruling that enables the Government to unilaterally seize private information of foreign citizens stored abroad helps or hurts in that effort. At the very least, the Government’s interpretation of the Act bypasses and makes bilateral mutual legal assistance treaties less relevant. But putting that aside, does one result or the other lead to a more likely international solution?

Viewed through this lens, for those committed to effective international lawmaking, there should be a clear preference in outcomes. A ruling that the Government has the power to unilaterally seize foreign communications undermines incentives to push for an international solution or to fix the shortcomings of mutual legal assistance treaties. As Professor Tonya Putnam’s recent book and research show, in the past when courts have rejected government arguments for extending domestic statutes extraterritorially, those refusals have helped fuel U.S. multilateral or bilateral engagement. In contrast, rulings that permits unilateral extraterritorial action create environments where there’s little urgency for the U.S. to find coordinated solutions. The most common result is free-for-alls, where each nation relies on its own piece-meal approach. Not surprisingly then, the reciprocity problem—that other nations would unilaterally try to seize private communications of U.S. citizens—figures prominently in the Second Circuit opinion. As one lawyer provocatively, but accurately, explains: “Why is the U.S. government trying to help Vladimir Putin access information stored in the United States?

For international lawyers, the Government’s position should be particularly troubling because the Government asks the Court to assume that Congress authorized activity that in 1986 would violate prohibitions on extraterritorial enforcement jurisdiction. All agree that the Government could not send FBI agents to Ireland to retrieve documents without Ireland’s consent. The Government also could not surreptitiously hack into data servers in Ireland. That too would violate Irish sovereignty. The issue then is whether the Government can do indirectly what it is prohibited from doing directly, by compelling Microsoft to do its work for it. But the U.S. can’t sidestep international law’s limitations merely by conscripting a private company to act in its stead. Ireland’s sovereignty and its citizen’s privacy rights aren’t offended less because the Government forced Microsoft to electronically seize records for it.

The response by some is to reimagine international law. Professor William S. Dodge takes this approach somewhat in a recent post on the Just Security blog. Citing to his own work with the Fourth Restatement, he says that the amicus brief “is simply wrong” on the international law by pointing to U.S. domestic court decisions related to production orders. Because I think highly of Professor Dodge and his other work, and because he directly responds to our amicus brief, I felt a short reply appropriate.

As an initial matter, the Fourth Restatement does not purport to set out international law. It’s an important publication, written by distinguished scholars, but it’s a survey of how U.S. courts have ruled. Some comments in the Fourth Restatement are contentious. For example, Professor Dodge cites to it for the proposition that customary international law “does not limit adjudicatory jurisdiction at all, except for certain rules of immunity.” That suggestion is inconsistent with the Third Restatement, which indicates a reasonableness restriction exists, and canonical treatises on international law. While it may be true that some domestic courts have not allowed international jurisdictional principles to constrain them and that international law limits are rarely in play given often stricter domestic limitations, the assertion that international law imposes no limits whatsoever is a minority position. As Professor Alex Mills explains: “Although some international lawyers have questioned the need for a separate category of ‘adjudicative jurisdiction,’ few if any would maintain that adjudicative jurisdiction is unregulated in international law.” The point is not to argue whether the Fourth Restatement is normatively right, but to suggest that the Fourth Restatement does not reflect settled international law, and not international law as it existed in 1986.

On the substance there’s also problems with arguing, as the Government does, that because some lower courts have permitted subpoenas to produce information from abroad that international law permits unilateral, extraterritorial warrants. Lower court cases focused on civil discovery generally do not interpret international law. They also don’t involve warrants, let alone warrants under the Stored Communications Act—an issue discussed extensively in the briefing. The cases also aren’t comparable because extraterritorial discovery is only permitted if the court has personal jurisdiction over the person subject to the production order, something that does not necessarily exist over foreign email owners (it might be different if the Government were only seeking foreign stored documents of Americans).

Even if these problems were overcome, it’s not clear that unilateral extraterritorial discovery orders are themselves always consistent with international norms. Certainly other countries object strongly to the practice. The background assumptions of the Brussels Convention, the Mutual Legal Assistance Treaties, the European Union’s General Data Protection Regulation, and the U.S. Department of Justice’s own manuals are that international law requires coordination, not unilateral action, to effectuate a cross-border production. Even if one could argue that state practice is changing, in 1986—the critical time for determining what Congress authorized in the Stored Communications Act—international law did not permit law enforcement to seize communications stored abroad and therefore is not something the Court lightly should assume Congress authorized.

Also contrary to what the Fourth Restatement implies, unilateral extraterritorial discovery orders have provoked pronounced friction. Published in 1987 around the same time of the Stored Communications Act, the Third Restatement was clear: “[n]o aspect of the extension of the American legal system beyond the territorial frontier of the United States has given rise to so much friction as the request for documents in investigation and litigation in the United States.” And as Gary Born and Bo Rutledge note in their well-regarded treatise: “Unilateral U.S. discovery of materials located abroad has frequently provoked vigorous foreign resistance” including diplomatic protests and blocking statutes. Writing earlier in a related context, the International Law Association noted that “[i]t is difficult to find any authority under international law for the issuance of orders compelling the production of documents from abroad.” Or as Professor Cedric Rygaert has recently explained: “Foreign states, European ones in particular, have. . . not surprisingly often argued that the U.S. execution of discovery orders for the production of documents located within their territory is not in keeping with the territoriality principle, violates international law, and violates their judicial sovereignty if their consent was not previously obtained.”

And for those interested in international law, perhaps this is where U.S. v. Microsoft is most interesting. For me, it’s an example of how unilateral action in the name of expediency threatens to undermine longer-term interests. U.S. companies aren’t the only ones that can access data abroad, and the U.S. should have an interest in protecting its own citizen’s privacy interests from foreign intrusion. This is exactly the kind of problem where coordinated, international solutions are needed. Unilateral, extraterritorial enforcement—in which nations compel the production of data located anywhere around the globe—is not a sustainable approach. More importantly for this case, there’s no indication that in 1986 Congress intended this odd result.

Symposium: The Assumptions of Koh’s Transnational Legal Process as Counter-Strategy

by Craig Martin

[Craig Martin is a Professor of Law at Washburn University School of Law, and is Co-Director of the International and Comparative Law Center at Washburn Law.]

This post will bring to a close the formal part of the virtual symposium on Harold Koh’s recent article The Trump Administration and International Law. As moderator, I would like to begin by thanking all those who contributed (including a couple of announced contributors who we unfortunately lost along the way to illness and crises). I think that each of the essays has raised interesting and important questions and issues. In closing, I would like to try to explore the common themes raised in the essays, and suggest that they all relate to a potential paradox in transnational legal process, and a weakness in its utility as a counter-strategy, that Harold may want to address as he expands the article into a book.

Recap

To briefly re-cap the symposium, Harold’s article argued that actors inside and outside of the U.S. government are, and should be, leveraging the features of transnational legal process as a counterstrategy aimed at preventing the Trump Administration from disrupting international law and postwar Kantian global order. There was general agreement with Harold’s analysis and criticism of the Trump Administration, and the threats it poses for international law and its institutions. And all applauded the effort to find ways to meet those threats. But each offered insights and critiques regarding different aspects of Harold’s account of transnational legal process, and its utility as a counter-strategy against threat Trump poses.

Bill Dodge focused on the “outside” component, and specifically the use of litigation, as part of the counter-strategy grounded in transnational legal process. Bill offered the cautionary insight that the use of litigation actually triggers executive interpretations of international law that are not only excessively narrow (and, one might add, sometimes at variance with traditional understanding of the law), but are indeed deeply entrenched through the internalization process. This confirms the interaction-interpretation-internalization dynamic, but not always in ways that contribute to compliance with international law.

Freddy Sourgens similarly questioned the extent to which the “stickiness” created by transnational legal process would be sufficient to enmesh a hostile Trump Administration, particularly given that, in his view, the Trump Administration is only one symptom of a more general unraveling of institutions and norms within the international legal order.

Laura Dickinson raised questions about the manner in which Harold’s approach tends to blur, or perhaps disregard, the distinction between law and policy. She used the example of the Presidential Policy Guidelines on Procedures for Approving Direct Action Against Terrorist Targets Located Outside of the United States and Areas of Active Hostilities (PPG), to great effect in exploring how a detailed set of policy “rules” serve to bridge the gap between differing interpretations of law, but also to mask the legal dimensions of the problem. The implication here is that transnational legal process may lead to problems if such policy looks like, or even substitutes for, an interpretation and internalization of law in the transnational legal process.

Kevin Heller provided a two part tour-de-force providing a retrospective and prospective critique of Harold’s arguments. In Part I, Kevin challenged the excessively black-and-white contrast drawn between Trump and Obama on compliance with international law, highlighting a number of ways in which the Obama Administration exhibited a lack of respect for international law and human rights. In Part II, Kevin provided a detailed and persuasive critique of Harold’s argument in support of the lawfulness of the use of force for purposes of unilateral humanitarian intervention (UHI), as a third exception to the prohibition in Art. 2(4) of the UN Charter. Harold argues that UHI both is and should be lawful, while Kevin is of the view that no such exception currently exists, nor would it be wise to establish one.

The Move from the Descriptive to the Normative

It strikes me that several of the issues raised seem to point towards some common tensions or even paradoxes within the argument. What is more, some of these tensions are not only in relation to the use of transnational legal process as counter-strategy, but relate to the theory of transnational legal process itself. Indeed, it may be that as we begin thinking more deeply about the theory as counter-strategy, we may stumble upon some important questions about the theory itself.

Upon reflection, I found the move made in Harold’s article both intriguing and surprising. That is, the manner in which the article apparently transformed transnational legal process from a descriptive theory into a strategy. My understanding of Harold’s famous work on transnational legal process was that the theory sought to explain why and how international law mobilized compliance. This compliance was the consequence of a complex process that operated automatically, organically, as a natural result of transnational interactions arising from the very structure and nature of the system of international law and its component parts.

In his Washburn article, however, Harold is suddenly speaking about transnational legal process as a counter-strategy. This is no longer just an explanation of how a process operates, but a call to arms. It is an argument that actors both inside and outside of the U.S. government can and should engage in action designed to trigger and implement the mechanisms of transnational legal process, as a means of resisting apparent threats to the international legal order. It is not just that transnational legal process makes international law “sticky”, making departures from the law difficult, but that we should all be engaged in trying to make it stickier, to enmesh and exhaust the rogue regime. What is more, Harold suggests that the Obama Administration effectively and self-consciously pursued the “inside” component of this strategy, by consistently engaging the international community, translating international law rather than disregarding it, and then leveraging international law as a component of the exercise of smart power.

Yet, as Kevin details in Part 1 of his essay, the Obama Administration acted in many ways that were inconsistent with, and indeed even inimical to, international law. But while Kevin was primarily cautioning against allowing our preoccupation with Trump to entirely eclipse any concerns over the transgressions of Obama, these inconsistencies may actually take on a greater significance in light of Harold’s argument. For when Harold speaks of the Obama administration engaging in transnational legal process of interactioninterpretationinternalization, so as to support international law and deploy it as part of American soft power, his implicit premise is that the interpretations of international law at issue were valid and legitimate, in part because previous interpretations have been valid and legitimate, and have been in turn internalized. But what if, as Kevin argues, interpretations frequently were not?

Questioning the Assumptions

Bill has explained that litigation can sometimes force the internalization of a very narrow or constrained, and one might add possibly invalid, view of international law; Laura has explained that the articulation and interpretation of detailed rule-based policy can disguise the legal issues, and be internalized in the place of law; Kevin has detailed instances in which the Obama administration took positions that were inimical to international law. In short, interactions can lead to invalid interpretation, and the internalization of principles, norms, or legal positions that are inconsistent with established international law.

Consider one example that was referred to in Harold’s article, and which was also touched on by both Kevin and Laura – the targeted killing of suspected terrorists with drones in non-consenting states, away from traditional theatres of armed conflict. This one policy has been widely attacked as violating a wide range of well-established principles of jus ad bellum, international humanitarian law (IHL), and international human rights law. Illustrative of Laura’s insight, much is often made of how the PPG established limitations on acceptable collateral damage that were more stringent than limits required by the principle of proportionality in IHL. But this disregards, and distracts from, the key question of whether IHL applies at all. A large segment of the international community, including many American allies, reject the claim that the U.S. can be in a non-international armed conflict against “Al Qaeda, the Taliban, and associated forces,” wherever they happen to be, and thus deny that IHL can apply to the American targeted killing of individuals away from the theatre of armed conflict. And if IHL does not apply, many of these killings would flagrantly violate international human rights law and domestic criminal law.

Similarly, this use of force against non-state actors within non-consenting states requires justification under jus ad bellum. Harold in his article refers to the Obama Administration reliance upon both a “necessarily elongated” notion of imminence, and the “unwilling or unable” doctrine, for its justification of such use of force. But as Kevin notes, and many others have argued, this “elongation” of the concept of imminence actually strips it of any temporal component, and so guts a concept that is integral to the broader doctrine of self-defense. Other aspects of the unwilling or unable doctrine similarly distort the relationship between jus ad bellum and both IHL and the law of state responsibility, and excessively privileges the interests of powerful states over the rights of weak states. Ultimately, it lowers the threshold for the legitimate use of force in ways that could have important ramifications for inter-state conflict.

It is not possible to lay out the proof for these arguments here, but they will be familiar to most readers in any event. But this is merely to illustrate that there are powerful arguments, controversial though they may be, that the Obama policy on targeted killing with drones distorted and undermined well-established principles of jus ad bellum and IHL, in ways that may do serious harm to the stability of those legal regimes, for relatively narrow instrumental anti-terrorism purposes.

The point here is not that Obama was as bad as Trump, or that the targeted killing policy was wrong. The point is to address the extent to which the theory of transnational legal process relies on the validity and legitimacy of the interpretations in question. The Obama Administration “interpreted” and “translated” international law in specific ways to justify policies such as the targeted killing program, and those interpretations were internalized not only within various components of the U.S. government, but other governments (such as the U.K., and Australia) as well. But such interpretation and internalization will only result in compliance with international law if the interpretation itself is at least within a range of reasonable interpretations consistent with established principles of international law. If the interpretation is outside of such reasonable range, and moreover if it is a deliberate and instrumental effort to cloak or rationalize a departure from international law, then it is difficult to see how the process will result in compliance.

It is not clear to me that the there is anything inherent or internal to the process itself that helps ensure that interpretations will more often than not fall within such a reasonable range of validity. The process is explained as being “constructivist”, and is “sticky” and self-perpetuating precisely because prior valid interpretations are internalized. But that does not explain how it is self-corrective if interpretations begin to deviate from the norm. On the contrary, it seems that the validity of interpretations could depend to a significant degree upon the outlook and disposition of the actors within the administration engaged in the interpretation. Harold does suggest in his latest article that the choice of engagement over unilateralism is a feature of the theory, and this may attenuate the problem, though I am not entirely clear on how such engagement is a necessary consequence of the process. It strikes me that this issue could benefit from further explanation—specifically, the question of how transnational legal process encourages interpretations that are themselves consistent with international law.

This brings us back to Trump and the deployment of transnational legal process as counter-strategy. If transnational legal process as a theory of compliance is dependent to some degree upon the good faith motives of key actors within the system, what happens when it is confronted with something like the Trump Administration? And which is worse: a rouge administration’s utter disregard for international law, or its decision to engage in an instrumental, malicious effort to subvert and destroy it through its own process of distorted interpretations and internalizations of international law in a manner cynically designed to serve its instrumental purposes? This is reminiscent of a debate between Adrian Vermuele and David Dyzenhaus over whether black holes or gray holes are worse for the rule of law—whether a façade of legality disguising unlawful conduct may do more violence to the rule of law than outright disregard or suspension of legal principles in certain exigent circumstances.

In short, I think that in developing the article into a book, Harold could perhaps explain further the implications of the move from descriptive theory to counter-strategy, and explore more deeply the question of how transnational legal process ensures interpretations and internalizations that conform with established international law. None of this detracts from the importance of Harold’s project—to the contrary. His explanation of the threats posed by the Trump Administration, and what is at stake for the international rule of law, and indeed the global world order, is compelling. His call to arms is rousing, his optimism is encouraging, and his offer of a counter-strategy is promising. I hope that this symposium will contribute to a conversation that may continue to inform Harold’s development of what is sure to be an important book.

Symposium: Koh, Trump, Obama – and Jean Baudrillard (Part 2)

by Kevin Jon Heller

[Kevin Jon Heller is a Professor of Law at the University of Amsterdam. This is the second part of a two-part post. The first part can be found here.]

Humanitarian Intervention

The first part of this post outlined my retrospective problem with Harold’s article. My prospective problem concerns his passionate call for the legal recognition of unilateral humanitarian intervention (UHI) – intervention that is not authorised by the Security Council. Harold’s desire to legalise UHI is understandable, given the ongoing humanitarian disaster in Syria. (The past couple of days being a horrific reminder.) And I share his anger toward Russia, which has repeatedly used its permanent veto to prevent the international community from taking stronger action against Assad. (Though I think the US and NATO are at least partially to blame for Russia’s intransigence, given how NATO abused the authority Russia was willing to give it in Libya.) But even if we believe that UHI should be legal – which I don’t – I think Harold is wrong to insist that it is legal.

Here is what he says about the categorical prohibition of the use of force in Art. 2(4) of the UN Charter (p. 461):

This “never-never rule” exhibits the absolutist, formalist, textualist, originalist quality Americans usually associate with the late Justice Antonin Scalia. It relies on absolutist readings of text, as those texts were “originally understood,” claiming that a nation may not engage in unilateral humanitarian intervention because of prohibitive wordings of Article 2(4) of the U.N. Charter and Article I of the U.S. Constitution. But on inspection, this position cannot be sustained. In both cases, this simplistic, absolutist reading cannot be squared with state practice, inter-branch practice, or the broader object and purpose of the document the reader claims to be interpreting.

To be clear, the “simplistic, absolutist reading” Harold condemns is not only consistent with the text of Art. 2(4), it is precisely the reading intended by the drafters of the UN Charter — powerful and weak states alike. Lowe and Tzanakopoulos explain:

13 The travaux préparatoires of the UN Charter, however, establish clearly that the expressions ‘territorial integrity’, ‘political independence’, and ‘in any other manner inconsistent with the purposes of the United Nations’ were not meant as qualifications of the scope of the prohibition in Art. 2 (4) UN Charter, but rather as reinforcements of the prohibition, aimed at assuring smaller and less powerful States that the use of force, for whatever reason, was absolutely prohibited. This was confirmed by the International Court of Justice (ICJ) in the Corfu Channel Case, where a British argument that its actions in forcibly sweeping Albanian waters for mines did not violate the territorial integrity and sovereignty of Albania was rejected, the UK intervention being declared to be a ‘manifestation of a policy of force’ (at 35). In the Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States of America), the ICJ reaffirmed the absolute prohibition of forcible intervention, and stated that ‘the use of force could not be the appropriate method to monitor or ensure … respect’ for human rights (at para. 268)….

With respect to Harold, dismissing the remarkable clarity of the text and history of Art. 2(4) by invoking a right-wing ideologue like Justice Scalia is unfair, conjuring as it does the image of a bunch of white men articulating rules that have to be blindly followed by future generations regardless of societal and demographic change. The Charter might have been drafted by a limited number of states, but the categorical nature of the prohibition of the use of force has been affirmed by every state that has ratified the UN Charter – i.e., all of them – including the dozens of states that did not yet exist when the Charter was drafted. In that respect, there is simply no parallel between the US Constitution and the UN Charter. Far from being quaint or outdated, the Charter’s regulation of self-help reflects state will no less today than it did in 1949.

Harold’s reference to the “object and purpose” of the UN Charter also fails to justify UHI. Although promoting human rights is one of the goals mentioned in the Preamble, it is not the only goal. Others include “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind”; “to unite our strength to maintain international peace and security”; and “to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest.” It is impossible, therefore, to separate promoting human rights from the prohibition of the use of force; on the contrary, the UN Charter is founded on the idea that respect for the latter is a condition of possibility for the former. Lowe & Tzanakopoulos again:

14 Most importantly, the narrow interpretation of Art. 2 (4) UN Charter is inimical to the purpose and structure of an organization intended to maintain international peace and security through the establishment of a collective security system. Oscar Schachter famously wrote that the narrow interpretation of Art. 2 (4) UN Charter requires an ‘Orwellian construction’ (at 649) of the provision’s terms. The better view is that any use of force, irrespective of its—humanitarian or otherwise laudable—motivation, is caught by the prohibition of Art. 2 (4) UN Charter and must be justified on the basis of an accepted exception.

To be sure, I agree with Harold that state practice could legalise UHI, either as a new interpretation of Art. 2(4) through subsequent practice (Art. 31(3)(b) of the VCLT) or as a supervening rule of customary international law. But there is simply no evidence that any significant number of states want to legalise UHI. Here is Harold’s argument to the contrary (pp. 459, 462):

The United Kingdom, Denmark, and Belgium have all articulated the conditions under which they believe humanitarian intervention to be lawful.

To overcome the manifest rigidity of the never-never rule, state practice has offered many prominent counterexamples of de facto humanitarian intervention: India- Bangladesh; Tanzania-Uganda; Vietnam-Cambodia (Khmer Rouge); the U.S. and the U.K. creating no-fly zones over Iraq to protect the Kurds and the Shias; and of course, NATO’s famous Kosovo episode of the late 20th century.

None of the examples Harold mentions supports the legality of UHI — where opinio juris is required, not simply the ability to describe a use of force as “de facto humanitarian intervention.” In each and every case, the invading state invoked a traditional justification for its use of force instead of UHI:

[1] India justified its invasion of East Pakistan (now Bangladesh) on the ground that the millions of refugees created by Pakistan’s repression of the Bengalis qualified as an armed attack for purposes of self-defence – a view overwhelmingly rejected by the General Assembly.

[2] Tanzania claimed that it was responding to an armed attack by Uganda. In fact, as Lowe and Tzanakopoulos note (para. 15), Tanzania did not even mention Uganda’s terrible human rights record in its public statements.

[3] Vietnam justified its invasion of Cambodia as self-defence against armed attack.

[4] The Coalition initially provided no justification whatsoever for creating no-fly zones over Iraq. The UK eventually invoked UHI, but no other member of the Coalition did likewise. Indeed, the US later argued – unpersuasively, to be sure – that the no-fly zones were permissible acts of self-defence.

[5] Only the three states Harold mentions – the UK, Belgium, and Denmark – invoked UHI to justify NATO’s bombing of the Serbs. No other NATO state did, and Belgium argued that the bombing campaign should not be seen as a precedent for the legality of UHI in other situations. (A claim Germany made, as well, even though it did not invoke UHI.) By contrast, as Lowe and Tzanakopoulos note (para. 33), “[t]he Non-Aligned Movement (NAM), numbering well over half of the Member States of the UN, unequivocally condemned the use of force against the (then) FRY, as did many other States, some of which are nuclear powers.”

The UHI ledger, in short, can hardly be said to support the legality of UHI. Only three states have ever invoked UHI as a matter of law – and one of those three refuses to endorse it as a general rule. Three states do not a new interpretation or supervening custom make – especially when more than 130 states, the entire Non-Aligned Movement (NAM), have specifically and repeatedly condemned UHI as unlawful.

It is not an accident, of course, that NAM states have led the opposition to UHI. Their opposition may be overinclusive, in the sense that it is at least possible to imagine powerful states in the Global North using force against weaker states in the Global South for genuinely humanitarian purposes. But if the Global South is (too) skeptical of UHI, the US and other powerful states have only themselves to blame, given their long and ignoble history of using force illegally – and dressing up those illegal uses of force in the language of humanitarian concern. (See, e.g., the invasion of Iraq.) Just consider the US’s personal list of military and CIA interventions since WW II, courtesy of William Blum: Iran (1953); Guatemala (1954); Thailand (1957); Laos (1958-60); the Congo (1960); Turkey (1960, 1971 & 1980); Ecuador (1961 & 1963); South Vietnam (1963); Brazil (1964); the Dominican Republic (1963); Argentina (1963); Honduras (1963 & 2009); Iraq (1963 & 2003); Bolivia (1964, 1971 & 1980); Indonesia (1965); Ghana (1966); Greece (1967); Panama (1968 & 1989); Cambodia (1970); Chile (1973); Bangladesh (1975); Pakistan (1977); Grenada (1983); Mauritania (1984); Guinea (1984); Burkina Faso (1987); Paraguay (1989); Haiti (1991 & 2004); Russia (1993); Uganda (1996); and Libya (2011). And we wonder why the Global South doesn’t trust the US (or the UK, or France, or…) to get UHI right?

Does this mean that, to paraphrase Cicero, silent enim leges inter tyrannide? Not necessarily. As Harold’s discussion of the P5 (p. 461) itself indicates, the obstacle to addressing the situation in Syria is not Art. 2(4) of the UN Charter, but the existence of the permanent veto. So instead of embracing UHI, it would be far better to argue — as John Heieck has — that the P5 has a legal duty not to veto a Security Council resolution aimed at preventing jus cogens violations such as genocide and crimes against humanity.

To be sure, good positivist that I am, I am not completely convinced that international law imposes a “no veto” duty on the P5. (I’ll wait for John’s forthcoming book to convince me otherwise.) The stronger legal “solution,” therefore, is probably the one Lowe and Tzanakopoulos discuss — relying on the 1950 Uniting For Peace Resolution to argue that the General Assembly can authorise humanitarian intervention when, as in Syria, the P5 is hopelessly divided:

36 The lack of Security Council authorization cannot be the final word on the issue of legality of an intervention on humanitarian grounds, even if no right of unilateral humanitarian intervention has emerged by way of customary international law. As Certain Expenses of the United Nations (Advisory Opinion) and the Israeli Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory) have confirmed, the Council has primary but not exclusive responsibility for the maintenance or restoration of international peace and security, which may be threatened by humanitarian catastrophes. The UN General Assembly has devised a procedure through which to respond to threats to the peace when the Security Council cannot act because of the use of the veto. This is the procedure established under the Uniting for Peace Resolution (1950). In the event that the Security Council cannot act, States arguing in favour of humanitarian intervention may take the issue to the General Assembly, as in fact they should before even considering unilateral action. Many States have expressed their preference for some form of UN response to a humanitarian crisis as opposed to allowing unilateral action.

37 The position of NATO that it needs to ‘stand ready to act should the UN Security Council be prevented from discharging its purpose of maintaining international peace and security’ (North Atlantic Assembly Resolution 283 para. 15 (d)) is, accordingly, questionable without further qualification. One major reservation relates to whether and when the Security Council is indeed ‘prevented from discharging’ its duties: a decision of the Security Council not to act cannot, without more, be qualified as the Council being ‘unable’ to act; nor can the fact that a resolution in support of action fails to command the necessary majority in a vote within the Council. Even to establish the premise, further evidence is needed that the Security Council cannot act because of the recalcitrant stance of a permanent member, and not merely because there is no agreement as to the use of force in a particular instance. Indeed, the non-authorization of the use of force may be a clear instance of the Council actually discharging its primary responsibility, rather than of it being prevented from doing so. And even if it is considered that the Council is being prevented from acting, UN law allows for an institutional solution: recourse may be had to the General Assembly in an attempt to garner support by two-thirds of its members under the Uniting for Peace procedure. Indeed the language of the NATO resolution itself comes close to that of the Uniting for Peace resolution.

If 2/3 of the General Assembly wants to authorise force to promote human rights — a threshold that would require a number of states in the Global South to support intervention — what possible basis is there, other than a “simplistic, absolutist” reading of the UN Charter and naked power politics, for the P5 to prevent the UN from acting?

To be clear, this is a legal argument, not a practical one. Although as a lawyer I would feel better about humanitarian intervention in Syria if it was authorised by the General Assembly, I am skeptical that such intervention would actually work. (Hence the scare quotes around “solution” above.) There is evident reason to question the value of external military force in Syria, for reasons explored here and here and here and here and here and here. Those analyses focus on UHI, not humanitarian intervention authorised by the General Assembly. But similar considerations apply as long as Russia remains devoted to Assad’s murderous regime.

Indeed, Harold himself clearly recognizes that no durable solution is possible in Syria without Russia’s support (p. 460):

To solve Syria, the United States must join other nations— including Russia—in building a sustainable peace process, organized around lawful conduct and a durable legal arrangement, and leverage that lawful core into a broader policy solution that contains and manages the sprawling crisis.

I completely agree — which is why I find Harold’s full-throated defense of UHI so puzzling. If Russia ever gets on board with a “sustainable peace process,” the Security Council could authorize humanitarian intervention in Syria, making UHI unnecessary. And if Russia continues to obstruct peace in Syria, as it has to date, engaging in UHI (or any kind of HI) would be exceptionally likely to end badly – if not in WW III. Either way, there would be no pragmatic rationale for UHI.

Conclusion

I share Harold’s anger toward the lawlessness of the Trump administration, and his analysis of all the ways in which Trump has further destabilized an already chaotic world is essential reading for anyone interested in American politics, international law, and the intersection between the two. But we cannot allow the horrors of the Trump administration to blind us to the many failings of its predecessor. Like all presidents, Obama was only selectively committed to the values he espoused; democracy and human rights mattered to him in a way they will never matter to Trump, but those values all too often took a backseat to more quotidian US interests such as “national security” and access to markets and resources. Plus ça change, plus c’est la même chose…

As for Syria, UHI it is not the answer, no matter how understandable our desire may be to do something — anything — to alleviate the human suffering there. I don’t know precisely what the solution is; if I did, I would be a politician or a diplomat, not a pointy-headed law professor. But UHI is illegal, as it should be. And it would almost certainly only make the situation in Syria worse. Military force for ostensibly humanitarian purposes is exceptionally likely to fail even when blessed by the Security Council, as Libya tragically demonstrates. Such force without international support, and against the wishes of Russia, is a recipe for disaster.

Symposium: Koh, Trump, Obama – and Jean Baudrillard (Part 1)

by Kevin Jon Heller

[Kevin Jon Heller is a Professor of Law at the University of Amsterdam. This is the first part of a two-part post. The second part is found here.]

Introduction

It is an honour to be invited to respond to the article version of Harold Koh’s recent Foulston Siefkin Lecture at Washburn Law School, “The Trump Administration and International Law.” I am a great admirer of Harold’s work and an even bigger fan of Harold himself, whom I am proud to call a friend and who has been incredibly supportive of me for a number of years, even though I was never his student.

There are many international-law issues Harold and I disagree passionately about. The Trump administration’s disdain for international law is not one of them. Harold’s wide-ranging analysis of how Trump has made both the US and the world a more dangerous place is spot-on, and I can only hope that the quiet resistance to Trump’s policies within the American government is as strong as Harold believes it to be. The wide circulation of his elegant article should certainly help.

The point of this symposium, however, is not (simply) to sing Harold’s praises. Although I agree completely with his critique of the Trump administration, I think there are two blind spots in the article’s analysis that are worth discussing. The first is retrospective, concerning the supposedly stark contrast between the Obama and Trump administrations concerning respect for international law and human rights. The second is prospective, on whether unilateral humanitarian intervention is or should be legal.

Obama vs. Trump

It is difficult to witness the daily international horrors wrought by the Trump administration and not feel more than a twinge of longing for its predecessor. But as I read Harold’s article, I could not help but think of what Jean Baudrillard, the great French cultural theorist, said about the role Disneyland plays in American culture:

The Disneyland imaginary is neither true nor false: it is a deterrence machine set up in order to rejuvenate in reverse the fiction of the real. Whence the debility, the infantile degeneration of this imaginary. It is meant to be an infantile world, in order to make us believe that the adults are elsewhere, in the “real” world, and to conceal the fact that real childishness is everywhere, particularly among those adults who go there to act the child in order to foster illusions of their real childishness.

The Trump administration, I would suggest, functions as a similar kind of “deterrence machine.” Its almost comical awfulness retroactively burnishes and legitimates the records of the administrations that preceded it, no matter how problematic those records might be in their own right. To see the power of this effect, we need only consider the rapid rehabilitation of George W. Bush since Trump became the nominee, with a baffling 61% of Americans now viewing him favourably, compared to 33% at the time he left office. Even more distressing, the surge in Bush’s popularity has largely been driven by Democrats, who seem to have forgotten, in the face of Trump’s bumbling and absurdly bellicose foreign policy, that Bush is the president who brought us systematic torture and the invasion of Iraq.

The Trump deterrence machine hums along even more smoothly, though, with regard to the Obama administration. Who among us, even my fellow denizens of the far left, wouldn’t be delighted to have a third term of Obama now that we have a President who couldn’t find Ukraine on a map if you pointed him toward the correct continent? Should we lefty international-law types really be spending our limited energies reminding people of Obama’s failures, when we are currently being led by a pathological liar with the emotional maturity and impulse control of a third-grader – someone who would happily start WW III if he thought it would allow him to turn Mar-a-Lago into a survivalist camp for billionaires?

The answer, of course, is “yes.” I unequivocally reject the hard left argument that Obama was just as bad as Trump on foreign policy. But I also think it is important to resist Harold’s admittedly understandable nostalgic longing for the Obama administration, a supposedly halcyon time when international law and respect for human rights mattered. Consider this statement (p. 417):

The inside strategy, which I applied as a government official, I called “Engage–Translate–Leverage,” or simply, using “International Law as Smart Power.” In hindsight, call this “the Obama–Clinton doctrine.” President Barack Obama tried to apply this foreign policy philosophy throughout his presidency. Upon taking office in 2009, President Obama said that “A new era of engagement has begun,” emphasizing that “living our values doesn’t make us weaker. It makes us safer, and it makes us stronger.” That approach was particularly urged upon him by his first Secretary of State, Hillary Rodham Clinton, who argued: “We must use what has been called smart power, the full range of tools at our disposal—diplomatic, economic, military, political, legal, and cultural” to achieve better policy outcomes. Had she been elected President, Secretary Clinton undoubtedly would have continued that approach.

I have no doubt that Harold worked tirelessly behind the scenes to ensure that the Obama administration exercised what he calls “smart power.” As an outsider, though, I still find his description of the Obama administration often unrecognizable. I don’t have time to dwell on all the ways in which the Obama administration proved itself anything but a paragon of respect for international law and human rights, but a few examples are worth mentioning – in no particular order:

[1] Sold more than $100bn in weapons to Saudi Arabia – including fighter jets, attack helicopters, warships, tanks, bombs, and air-to-ground missiles – even after there was no longer any doubt the Saudis were using them to commit unspeakable war crimes in Yemen.

[2] Preached the importance of democracy and human rights in Iran and Syria, while remaining silent about viciously repressive regimes in Bahrain and Saudi Arabia and supporting dictators like Mubarak in Egypt and Ben Ali in Tunisia until it was clear neither would remain in power. (A particularly important point to make, given that Harold rightly condemns (p. 431) the Trump administration’s “blatant, disturbing softness on human rights in the Middle East, particularly with respect to Saudi Arabia, Egypt, Bahrain, and Turkey”).

[3] Used the Security Council resolution authorizing civilian protection in Libya as a pretext for regime change – and then stood idly by as Libya descended into chaos.

[4] Advocated, in the context of “self-defence” against the shadowy Khorasan Group, a view of imminence that denudes the requirement of all meaning. Recall what Pentagon spokesman Rear Adm. John Kirby said about whether the US actually responded to an armed attack by the group: “I don’t know that we can pin that down to a day or month or week or six months…. We can have this debate about whether it was valid to hit them or not, or whether it was too soon or too late… We hit them. And I don’t think we need to throw up a dossier here to prove that these are bad dudes.”

[5] Claimed that Obama was free to violate both conventional and customary international law when authorizing covert actions.

The most problematic aspect of Harold’s argument, however, concerns what he says about torture (p. 431):

Perhaps the most visible proposed human rights rollback was candidate Trump’s statement that “[if I am elected, w]e’ll use waterboarding and a hell of a lot worse than waterboarding.” Shortly after the election, the press leaked a draft national security executive order that called for reinstating the discredited program of interrogation of high-value alien terrorists, to be operated outside the United States, presumably at revived “black sites”—former offshore detention facilities operated by the C.I.A. But campaign statements and draft executive orders are not law. Congress has repeatedly forbidden torture by treaty and statute.

Harold is absolutely right to be appalled by Trump’s enthusiastic embrace of torture. But why shouldn’t Trump embrace it? Despite high-ranking government officials openly confessing to national and international crimes, the Obama administration did nothing – literally nothing – to hold anyone accountable for the systematic torture regime that Bush created. On the contrary, Obama promptly immunized the torturers, justifying impunity with what has to be one of the most profoundly Orwellian excuses in American political history – that he was “looking forwards, not backwards.” Had Obama been willing to look backwards – what we naive types call “criminal prosecution” – Trump might actually see torture as a crime, instead of as merely one policy choice among others.

In short, Harold’s critique of the Trump administration’s approach to international law is both accurate and devastating. But although his hands may be clean, the hands of the administration he worked for are not. Like its predecessors, the Obama administration was more than willing to ignore international law when it proved too limiting and human rights when they proved too inconvenient.

[The second part of Kevin’s post is found here.]

Symposium: The Trump Administration and International Law–Policy in the Shadow of International Law

by Laura Dickinson

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at George Washington University Law School.]

In International Law in the Trump Administration, Harold Hongju Koh has articulated a bold vision of the role that international law can play (and to some extent is playing) during the current administration. Unlike some critics, he does not argue that the administration is inevitably destined to completely abandon or ignore all international law frameworks, although he does express serious concerns that Trump policies may seek to undermine or dismantle important international institutions such as NATO. Instead, Koh believes that international law continues to have teeth; he argues that it is a true constraining force, a “guardrail,” that reins in this or any administration.

Koh’s belief in international law’s constraining power derives from his longstanding theory of how international law actually functions and how it derives its force. Instead of a formalist vision of international law made only by states, interpreted largely through Executive Branch pronouncements, and implemented only occasionally in courts, Koh focuses on what he calls “transnational legal process.” In Koh’s view, this process is interactive and multi-dimensional, encompassing a diverse range of actors, from other governments contesting U.S. legal views, to U.S. courts interpreting those views, to foreign, regional, and international courts outside the United States issuing relevant decisions, to inter-governmental and non-governmental organizations advocating or expressing views of the law. For Koh, international law’s constraining power inheres in the norms that inevitably get articulated and inculcated during this complex process.

Koh’s theory of transnational legal process has not only been a path-breaking theoretical vision of how international law works. It also provides a pragmatic approach to international lawyering. One of the strengths of this piece is that in it Koh maps out a broad range of specific international law issues and projects for actors within this transnational process to tackle in the coming years, from immigration to the use of force, from climate change to cybersecurity.

There is, of course, much that could be said about Koh’s wide-ranging article. Here, I would like to focus on one issue that is implicit in his approach, but which remains largely unexplored: the distinction between legal rules and policy choices, as well as the relationship between the two. The various examples that Koh provides of transnational legal process, both in his previous writings and in this proposed plan of action, tend to slide back and forth between law and policy. For example, some of the instances of legal process that he cites in this new article are more frequently understood as policy choices rather than as legal constraints, in particular many policies that were adopted by the Obama administration.

It may be that Koh doesn’t focus on the law/policy distinction because he thinks that norms articulated as a policy matter impact legal rulings and over time may “harden” into law. Indeed, such seepage seems to be at the core of transnational legal process. And it is undoubtedly true that such seepage is an important part of the constraining power of international legal norms. Yet, that does not mean that the formal distinction between law and policy should be ignored altogether. Indeed, having just spent a year serving as Special Counsel to the General Counsel of the U.S. Department of Defense, half of which was at the end of the Obama administration and half of which was in the new Trump administration, I have a greater appreciation for the way in which government lawyers think about the law/policy boundary and the effect that the distinction may have.

During the Obama administration, many issues that could be described as conflicts over interpretation of international law got resolved not through definitive judgments about the content of international law, but through the implementation of Executive Branch policies. One prominent instance of this, in my view, is the 2013 Presidential Policy Guidance on Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities (PPG), which Koh suggests is an example of a constraint within his framework of transnational legal process.

As a matter of domestic law, a Presidential Policy Guidance has a legal dimension. But for the purposes of international law, the 2013 PPG did not purport to establish legal rules. Instead, it imposed, via policy, a set of limitations on the use of force by the United States over and above all existing limitations under the law of armed conflict (LOAC), also known as international humanitarian law (IHL).

In particular, the PPG permitted U.S governmental personnel to use force in areas outside zones deemed areas of active hostilities only when such force was being used: (1) against a target that posed a “continuing, imminent threat to U.S. persons,” (2) when there was “near certainty” that the target was present, (3) when there was “near certainty that noncombatants … [would] not be injured or killed,” (4) when “capture ….[was] not feasible at the time of the operation,” (5) when the “relevant authorities in the country where the action was contemplated” could not or would not “effectively address the threat,” and (6) when “no other reasonable alternatives” existed. The PPG also imposed a variety of procedural requirements regarding the nomination of targets and their approval, including inter-agency coordination, review by senior administration officials, and evaluation by lawyers.

As a policy, the PPG addressed, but significantly did not resolve, an underlying conflict over the appropriate legal paradigm applicable to the use of force in these geographic areas. If the United States is in a global armed conflict with Al Qaeda, the Taliban, and associated forces, then LOAC/IHL would apply to the use of force anywhere in the world against these entities. But if this armed conflict is not global, then the usually more restrictive rules regarding the use of force governed by international human rights law (IHRL) would generally apply outside the areas of armed conflict. Various actors in the international system, including states and non-governmental organizations, disagree about this issue and have taken differing approaches to the scope of this armed conflict (or conflicts). By adopting the PPG, it could be said that the Obama administration bridged an interpretive legal dispute with a policy, because many of the elements of the PPG resemble human rights norms regarding the use of force. Currently, it is unclear to what extent the Trump administration is following that policy, though reports have indicated that it has developed a new policy that retains some, but not all, of the elements of the PPG.

I do not here want to say that the policy approach to the 2013 PPG was necessarily good or bad in that particular instance. But I would like to suggest that adopting a voluntary policy, rather than an interpretation of what is legally required in such circumstances does have important consequences and has distinct advantages and disadvantages. (And of course, whether one sees an advantage or disadvantage in a particular case, may depend in part on one’s perspective on the specific policy).

On the plus side:

  1. 1. Policy is flexible. In this sense it reflects a kind of pragmatism. Policies can be fine-tuned and calibrated to specific circumstances. Thus, the PPG might be said to implement standards similar to those of human rights law, but the state is not bound under this body of law, and the standards do not have to match exactly. This flexibility gives the state room to maneuver as appropriate in a variety of circumstances.

  2. 2. Policy may serve to address differences of legal interpretation within a government. To the extent that there is a dispute over the applicable legal framework among different entities even within the Executive Branch, adopting rules as a matter of policy rather than as a legal requirement may help to smooth over those differences. It may therefore be easier to achieve consensus on policy rather than to try to resolve serious disputes about the applicable legal requirements.

  3. 3. Policy can also bridge gaps in legal interpretation among states. Adopting rules as a policy matter can present certain inter-operability benefits among allies who may have different approaches to the law. For example, one could make the case that the US adoption of the PPG helped relations with our European allies, many of whom have a narrower view than the United States regarding the scope of the armed conflict against Al Qaeda, the Taliban, and associated forces. By adopting an approach closer to that of our allies as a matter of policy, the Obama administration could ease tensions that might otherwise accompany joint operations with those allies. And significantly, such tensions could be eased without needing to make a wholesale change to U.S. legal interpretations of the scope of IHL/LOAC.

Nevertheless, despite these advantages, it is important to recognize that there are also potentially certain disadvantages to the adoption of rules as a matter of policy rather than law:

  1. 1. Policy may be too flexible. Although the flexibility of policy can be an advantage, it can also be a disadvantage. For example, a voluntarily policy exerts less constraining power on a state. Although there may be certain path dependencies that cause policies to be “sticky” once adopted, there is little doubt that Executive Branch policies usually do not bind future administrations in the same way as Executive Branch determinations about the applicability of international legal rules.

  2. 2. Policy can mask (or ignore) the legal dimensions of a problem. Even when a policy could be said to help smooth over differences regarding legal interpretations, a policy does not necessarily make explicit the degree to which the policy being adopted is informed by perceived legal requirements. Certainly the 2013 PPG does not do so. As a result, the refusal to make explicit the perceived law in the area might slow the development of the law by relieving pressure on the interpretive conflict.

Beyond these general advantages and disadvantages, there are also some specific consequences that arise when a policy can be said to be “legalistic.” What do I mean by a “legalistic” policy? When a policy articulates very specific rules, standards, and procedures, as the PPG does, it could I think be fairly called “legalistic.” One consequence of implementing this type of policy is that it may require government lawyers to interpret it, even if those lawyers are not the ultimate decision-makers. Yet, legal interpretation of a policy may be complicated because it is unclear whether the policy should be interpreted in light of international law doctrine or not. In addition, sometimes the adoption of a “legalistic” policy can blur the boundaries between law and policy itself. For example, even if a government implements a policy rather than articulating a legal obligation, other actors in the system – other states, non-governmental organizations – might subsequently argue that the policy is evidence of customary international law, especially if the government is not entirely clear about the policy’s status. If that occurs, it might mitigate some of the advantages of policy. Indeed, if governments become worried that they might unwittingly be creating customary international law, they might begin to resist crafting policies that are more protective than minimum legal standards.

All of this is just to say that, as one thinks about how transnational legal process may operate, it is important to consider the differing ways in which policy decisions on the one hand, and legal decisions, on the other, may work. It may matter quite a bit the kind of “hook” that an actor in a “transnational legal process” may be using. And we should at least be aware of the differences and implications of both.

Symposium: Law and “Stickiness” in the Times of the Great Unglued

by Frederic Sourgens

[Frédéric G. Sourgens is a Professor of Law at Washburn University School of Law.]

The key virtue of transnational legal process is what Dean Harold Koh calls its “stickiness.” (pp. 416, 437) Transnational legal process is rooted in the deep authority structures underpinning world community: we, as members in world society, have internalized global norm commitments as our own and reflexively order our own lives accordingly. (p. 256) Once set in motion, compliance with transnational legal process is simply a matter of path dependence. In ordinary times, this makes it extraordinarily difficult to escape transnational legal process. By way of example, it would be strange to think of a Republican Secretary of State standing up for the Paris Agreement and perhaps even stranger to suppose that this Secretary of State was the former CEO of Exxon. And yet, Secretary Tillerson reportedly was an internal champion for the treaty.

The problem is: these are far from ordinary times. The Trump administration has been described as “unglued.” Perhaps it would be more adroitly described as an agent of a great “ungluing” of the fabric of global life. The administration is setting out to unglue the administrative state. It is poised to dismantle the vestiges of stickiness within the administrative state by failing to fill political appointments by the hundreds and driving civil servants from State Department and the EPA in record numbers. If stickiness depends upon the internalization in due course of transnational legal expectations in the administrative state – simply deny the administrative state the ready means of norm internalization in the first place.

More worryingly still, the Trump administration is a symptom rather than a cause of a great ungluing of existing world order(s). To complain that the world would come together to solve its problems but for the current occupant of the White House would be to suffer from willful blindness. The ungluing of which President Trump is such a potent symbol is a global phenomenon. What is more, it continues to spread and follows the logic of its own process: a transnational transference of lawlessness, or photonegative of Dean Koh’s transnational legal process. This counter-process is fueled by deeply felt, if not necessarily richly deserved, dissatisfaction with our globalized world order. It is therefore fair to surmise that it is not the “Will of Trump” that is set upon ungluing our world. Hell, it’s others. Hell, it’s us.

Where does this leave “stickiness?” Dean Koh is a perennial optimist. He bets – hopefully correctly – that the stickiness of transnational legal process is stronger than the force seeking to unglue it. If this proves so, the Trump administration and others like it would simply tire themselves out. What Dean Koh calls the “rope-a-dope” of a daily grind against the resistance of settled expectations in world society will eventually bring about norm compliance by the Trump administration just like it does for every other administration that campaigned on radical change. (p. 415)

Dean Koh provides a blueprint for how transnational legal process can constrain the Trump administration. Thus, he notes that “[t]hose opposing President Trump’s policy initiatives on legal grounds can use the various fora available to them to resist those initiatives, forcing Trump to punch himself out by expending energy and capital on initiatives that that do not advance his or his party’s chance at reelection” (p. 421). Dean Koh provides examples of how the “transnational legal process kicked in” by “swift and furious legal challenge[s].” (p. 425). The examples Dean Koh provides rest upon domestic legal actions such as immigration law in the context of the travel/ Muslim ban (p. 428) and environmental law in the context of the Paris Agreement (pp. 438-440). He cites the involvement of civil society actors around the world in support of these lawsuits as having an effect upon the Trump administration consistent with the demands of transnational legal process and stickiness.

Dean Koh is implicitly relying upon a connection between transnational legal process and domestic litigation. Problematically, in the face of current ungluing efforts, he does not theorize why this link should exist. As the pointed disagreement over the use of foreign legal materials in constitutional argument at U.S. Supreme Court showcased just too vividly, the great ungluing precisely seeks to impeach the reflex to coordinate domestic and transnational legal processes. The Trump administration and others dissatisfied with the current state of globalization are precisely leery of the hidden (if not invisible) hand of transnational processes guiding domestic judicial and administrative decision-making. It is therefore inadvisable to double down on implicit compliance. It is time to bring transnational legal process out of the closet and make its function explicit and express.

In the first instance, it is important to provide a further appraisal of stickiness on the international level. Take the Paris Agreement. As Dean Koh points out, the Paris Agreement did not on its face make greenhouse gas emission reduction pledges binding as a matter of the agreement itself. Nevertheless, it is fair to say that Dean Koh treats the Paris Agreement as one of the key examples of the transnational legal process at work in constraining the U.S. from changing course on climate change efforts during the Trump administration. (pp. 438-440). How did the Paris process create international legal commitments? While doctrinally tricky, this needle can be threaded and thus provide a further backstop showing why compliance is consistent with the transnational legal process not just a matter of prudential choice, but – fittingly given the name of this blog – grounded in a sense of legal obligation.

An international law answer is not enough however to satisfy the domestic side of our stickiness puzzle. To address the critics decrying the “Class of Davos,” transnational legal process in the times of Trump must answer why the international commitments incurred by the Obama administration continue to commit a successor administration. Only such an answer will give cover to career civil servants who intuitively follow the move towards compliance indicated by transnational legal process. Only this answer will answer the accusation of “deep state” with “rule of law.” What then is the role of the international commitment undertaking at Paris in barring efforts by the Trump administration to repeal and replace rules like the Clean Power Plan upon which the U.S. Paris commitment centrally relied? (p. 4). Again, the needle is tricky to thread. But not threading the needle is to give ammunition to those wishing to unglue our current world order and allows them to accuse proponents of the transnational legal process of corrupting American primacy.

Answering both questions is not a fool’s errand. Transnational legal process can provide answers in the context of the Paris Agreement. Hopefully it will push transnational legal process to provide a further layer of explanation for transnational legality. It allows us to ask not just why states comply with international law. It permits us to push further to understand how the process of complying (stickiness) is itself grounded in law. We would thus be one step further along in uncovering the central forces driving a lawfully constituted world society.

As it stands, Dean Koh’s The Trump Administration and International Law is a powerful call to action. It is an important confirmation of the virtue and value of transnational legal process. Its virtue and value is ultimately that we do not live in the President’s world, but in ours so long as we remain connected – sticky – and hold our world together. As Dean Koh notes by reference to one of the great fighters, Muhammad Ali, it is our choice to stand up for the fundamental principles inherent in the rule of law – stability, reciprocal engagement, and growth – and to be relentless in our resolve to take whatever blows an opponent might choose to inflict. But it is important to do more than stand up for these principles; one must speak up for them with an eloquence to rival one’s tenacity so that years later, it is the spirit of Muhammad Ali rather than the spirit of the U.S. boxing commissions which we all celebrate and remember. Stickiness must not only be just and lawful. It must be seen to be just and lawful.

Symposium: Advancing International Law Under the Trump Administration–Some Cautionary Thoughts About Litigation

by William S. Dodge

[William S. Dodge is Martin Luther King, Jr. Professor of Law at the UC Davis School of Law. From 2011 to 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State.]

Among Harold Koh’s many academic achievements, perhaps his most influential has been to articulate a theory of transnational legal process that explains why nations obey international law. According to this theory, public and private transnational actors generate interactions that lead to interpretations of international law that in turn become internalized in domestic law. Once internalized, such interpretations become difficult to change.

In a recent lecture at Washburn University School of Law, Harold used the lens of transnational legal process to examine “The Trump Administration and International Law.” His tour d’horizon is a tour de force, examining the entrenchment of international law with respect to immigration and refugees, human rights, climate change, Iran, North Korea, Russian hacking and cybersecurity, Ukraine, al Qaeda and IS, and Syria. As he writes, “no single player in the transnational legal process—not even the most powerful one—can easily discard the rules that we have been following for some time.”

Harold’s purpose is not simply descriptive. He also sets forth a “counter-strategy” to resist Trump’s assault on international law and international institutions. This strategy includes an “inside strategy” that government officials can use to engage other states, translate international law norms, and leverage those norms as smart power to advance U.S. interests. And it includes an “outside strategy” that non-governmental actors can use “to generate interactions that force interpretations that promote internationalizations of international norms even by resisting governments.”

I want to focus on the “outside strategy,” and particularly its reliance on litigation. “Lawsuits are the paradigmatic example” of the outside strategy, Harold explains. “[I]f a government policy moves in a legally noncompliant direction, an outside nongovernmental group can sue (generate an interaction) that yields a judicial ruling (an interpretation) that the government defendant must then obey as a matter of domestic law (norm internationalization).” There is no doubt that litigation is a critical tool to promote compliance with international law. But litigation can also serve as a catalyst for interpretations that constrain international law.

In an insightful article that should be required reading for any lawyer entering government service, Professor Rebecca Ingber has examined how different interpretation catalysts shape executive branch interpretations in the area of national security. She writes: “Once the government is implicated in a lawsuit, particularly over a matter of national security, nearly all forces align to push the executive to advocate an expansive view of its own authority, to defend past action, and to request a judgment in favor of the government on the broadest possible grounds so as to preserve executive flexibility to the greatest extend possible.” After the executive branch takes a position in the context of litigation, that interpretation can be quite difficult to change.

I witnessed this dynamic first hand when I served as Harold’s Counselor on International Law at the State Department and participated in the interagency process that produced the two amicus briefs for the United States in Kiobel v. Royal Dutch Petroleum. With respect to the question of corporate liability for human rights violations, which posed no direct litigation risk to the United States or its officials and on which the United States had not previously taken a position, it was possible to reach consensus on a position that advanced international law (a position that became entrenched and that the Trump administration repeated in its amicus brief in Jesner v. Arab Bank). But with respect to questions of extraterritoriality, it proved difficult to move away from positions adopted by the Bush Administration in the shadow of the “War on Terror” and allegations of human rights violations by U.S. government actors.

In her article, Rebecca gives the example of the Bush Administration’s “War on Terror” policies. “The Bush years are often cast as a time of momentous Supreme Court pushback against administration policies in areas where presidents had previously been awarded great deference. That is one narrative, and there is truth in it.” But she explains that there is another narrative in which “repeated years of litigation . . . did not radically alter the legal architecture for the Bush Administration’s policies in its ‘War on Terror.’ Instead, this litigation entrenched it.” Despite the desire of the Obama Administration to move in a different direction, the existing executive interpretations made it “exceedingly difficult for the new Administration to change course and suddenly take new positions in litigation, above all those that might constrain government action or fail to defend past government policies.”

Litigation can be an important interaction in the transnational legal process framework. But it can produce narrow interpretations of international law by the executive, which are only sometimes overturned by broader interpretations in the courts. And narrow executive interpretations can become internalized, just as broader judicial interpretations can.

One may be more likely to get broader judicial interpretations when the courts do not trust a particular administration, at least not on a particular issue. That factor may have played some role in the Bush Administration’s losses at the Supreme Court in the “War on Terror” cases, and it could certainly be relevant in litigation challenging some of the Trump Administration’s policies. The probability of a good interpretation from the courts may offset the probability of a bad interpretation from the executive.

Whether litigation is the right counter-strategy also depends, of course, on the alternatives. As Rebecca rightly notes, “litigation may well be the only way to force the executive’s hand.” This may be particularly true for the Trump Administration, in which other potential catalysts (like reports to treaty bodies) are likely to have less impact and other potential interpreters of international law (like the State Department) have already been marginalized.

Finally, one must consider the impact of litigation not just on the executive branch and the courts but also on the broader public mind. A case in point is the litigation challenging the Trump Administration’s Travel Bans, in which the clinics at Yale Law School have played an important role. One by-product of the litigation was a devastating declaration of former national security officials, which later became an amicus brief, confirming that the Travel Ban would likely harm counterterrorism and law enforcement efforts. The litigation has also helped galvanize resistance from members of Congress and state and local governments. Even if this litigation generates narrow executive branch interpretations of international law, and even if courts uphold some of those interpretations, the political impacts of the litigation may yet prove worthwhile.

Transnational legal process provides an important framework for understanding why nations obey international law and how to frame strategies to ensure that the Trump Administration does as well. But it is wise to remember that executive branch interpretations tend to be most regressive when made in the context of defensive litigation, and that internalization can apply to bad interpretations as well as to good ones.

Introducing the Symposium on Harold Hongju Koh’s Washburn Lecture and Article: “The Trump Administration and International Law”

by Craig Martin

[Craig Martin is a Professor of Law at Washburn University School of Law, and is the Co-Director of the International and Comparative Law Center of Washburn Law.]

Over the next few days Opinio Juris will be conducting a virtual symposium to discuss Professor Harold Hongju Koh’s article The Trump Administration and International Law. The article was published in a special Symposium Issue of the Washburn Law Journal, which also includes articles by David Sloss, Peggy McGuiness, and Clare Frances Moran, responding to or picking up on the themes of Harold’s article. The article was in turn based on a wonderful lecture that Harold delivered to an entranced standing-room only crowd at Washburn University School of Law in March 2017. He is expanding the article into a book that is soon to be published by Oxford University Press.

Harold’s article addresses the key question of whether the Trump administration will disrupt America’s relationship with international law and its institutions. It argues that transnational actors both inside and outside the U.S. government are operating to resist such change, and to frustrate or mitigate the Trump administration’s efforts to stretch or break international law. This, Harold argues, is yet another example of transnational legal process, the theory that is of course famously associated with Harold’s name. Transnational legal process theory provides the basis for a counter-strategy to resist the efforts of the Trump Administration.

In broad terms, it suggests the choice of engagement over unilateralism, an emphasis on choosing persuasive legal translation over denying the applicability of international law at all, and the leveraging of “international law as smart power” rather than over-reliance on hard power. All of this, of course, stands in stark contrast to the Trump Administration’s approach to international issues. More specifically, colorfully invoking the metaphor of Mohammad Ali’s “Rope-a-Dope” strategy, Harold explains the process by which transnational actors have and continue to interact with, interpret, and internalize international law, and how this will operate externally to hold the Trump Administration accountable to American international law obligations, and internally to constrain and frustrate the ability of the government to effectively abrogate American commitments and undermine international law and its institutions.

Having thus set out the theoretical account for how transnational legal process may operate, Harold examines a series of specific situations for purposes of illustrating how this process of interaction, interpretation, and internalization, has played out. These case studies run the gamut from the Trump Administration’s approach to immigration and refugees, through the Paris Climate Agreement, the Iran nuclear deal, North Korea, Russian Hacking, the Ukraine, Al Qaeda and ISIS, to the war in Syria. In each case, Harold explores how various actors both internal and external to the administration have responded in a manner that bears out and illustrates the legal process theory account, and how their actions have constrained and frustrated the efforts of the American government.

While Harold’s analysis and overall argument are optimistic and encouraging, in closing he strikes a darker note in cautioning us on what is ultimately at stake. He warns that this is a struggle “between competing visions of a future world order.” His claim is not only that a counter-strategy informed by transnational legal process is currently operating to curb the Trump Administration’s efforts, but that it is essential to prevent “the slow backsliding of our Kantian postwar system into a more cynical, Orwellian system of global governance far less respectful of democracy, human rights, and the rule of international law.” In this sense, it is yet another contribution to the deepening sense that Western liberal democracy and the international law system are confronting existential threats, and provides a powerful argument for ways in which we can all meaningfully respond.

For the symposium we have a group of distinguished scholars who have all done considerable work in different ways on the theoretical issues at play in this piece, and who will discuss various aspects of Harold’s argument. I expect that some will focus on one or more of Harold’s specific case studies, exploring in more detail his theoretical explanations for what is actually going on in each of them, while others may grapple with the application of transnational legal process theory more generally, and whether it is indeed as well suited to the task as Harold suggests. The line-up will be (though not necessarily in the order that they will appear): Bill Burke-White (Pennsylvania), Laura Dickinson (GW), Bill Dodge (UC Davis), Kevin Jon Heller (Amsterdam), Freddy Sourgens (Washburn), and Melissa Waters (Wash U).

It is my hope that this will help to generate a robust discussion, both here in the comments section and elsewhere, and that the discussion in turn will help to inform the development of Harold’s upcoming and important book on this subject.

Symposium: The Trump Administration and International Law

by Jessica Dorsey

Over the next several days we will have an online discussion on a recent article by Harold Koh on The Trump Administration and International Law, 56 Washburn L. J. 413 (2017). The article is based on a lecture Professor Koh gave at Washburn University School of Law last year, and is published in a special issue of the Journal that includes four other articles responding to different aspects of the Trump administration and international law.

For this week’s discussion, we welcome Craig Martin (Washburn University School of Law), who will kick off and wrap up the discussion, and we will post exciting contributions from Bill Burke-White (University of Pennsylvania School of Law); Laura Dickinson (George Washington University Law School); Bill Dodge (UC Davis School of Law); Kevin Jon Heller (University of Amsterdam School of Law); Freddy Sourgens (Washburn University School of Law); and Melissa Waters (Washington University School of Law).

We very much look forward to the conversation!

Does the ICJ Have Binding Jurisdiction Over the Guyana-Venezuela Border Controversy? Probably, But Maybe Not

by Julian Ku

Last month, the UN Secretary General António Guterres announced that he was referring the longstanding border dispute between Guyana and Venezuela to the International Court of Justice. This decision was made after a long period of mediation by various UN Secretaries-General dating back to 1990.  But as a ICJ jurisdiction nerd, I am curious what the basis of the Secretary-General’s power to refer the dispute to the ICJ is.

It is based on the 1966 Geneva Agreement between the United Kingdom (which was sovereign over Guyana at the time) and Venezuela. That agreement specified a long process of study via a joint commission and then noted that, if agreement on the commission’s report failed, the following process should be undertaken according to Article IV(2):

If, within three months of receiving the final report, the Government of Guyana and the Government of Venezuela should not have reached agreement regarding the choice of one of the means of settlement provided in Article 33 of the Charter of the United Nations, they shall refer the decision as to the means of settlement to an appropriate international organ upon which they both agree or, failing agreement on this point, to the Secretary-General of the United Nations. If the means so chosen do not lead to a solution of the controversy, the said organ or, as the case may be, the Secretary-General of the United Nations shall choose another of the means stipulated in Article 33 of the Charter of the United Nations, and so on until the controversy has been resolved or until all the means of peaceful settlement there contemplated have been exhausted.

There is no doubt that this provision has been invoked, and the Secretary General’s announcement indicated that he deems “the International Court of Justice as the means to be used for the solution of the controversy.”  Article 33 of the UN Charter does list “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice” as options for “pacific settlement of disputes.”  The ICJ would seem to qualify as a “judicial settlement.”

The problem is that it is not clear that Article IV of the Geneva Agreement automatically makes the ICJ’s decision legally binding. Neither Guyana nor Venezuela have accepted the compulsory jurisdiction of the ICJ, so there is no independent basis for jurisdiction.  The Geneva Agreement, I suppose, should be read as delegating to the UN Secretary-General the power to refer their dispute to “judicial settlement.” But it is not clear whether this broad delegation includes any and all forms of dispute settlement, or that those settlements would be binding.

The most natural reading, I concede, is that Venezuela is indeed bound to abide by any ICJ ruling in this case. But I wouldn’t be surprised if Venezuela tries to contest the jurisdiction of the ICJ, or the binding nature of any decision it issues.

Events and Announcements: February 11, 2018

by Jessica Dorsey

Call for Papers

  • Call for papers: Ensuring and Balancing the Rights of Defendants and Victims at International and Hybrid Criminal Courts: Pluricourts, University of Oslo has issued a call for papers for this conference to be held in Oslo on 30 and 31 August.  The call is available here. The deadline for abstracts is 19 March.

  • The Palestine Yearbook of International Law is now inviting submissions of scholarly articles for publication for its next volume, XXI (2018). This is a general call for papers. As such, the editors encourage the submission of scholarly pieces of relevance to public international law, including but not necessarily in relation to Palestine. The Yearbook is published in the English language, is edited at Birzeit University’s Institute of Law (Birzeit, Palestine), and published by Martinus Nijhoff Publishers (The Hague, The Netherlands). The Editor-in-Chief of the Yearbook is Mr. Ardi Imseis. The Yearbook is now accepting abstracts for review. Abstracts should include a working title, with a preliminary outline of the author’s research and arguments, along with a current CV. Important Dates and Contact Information: Prospective authors should express interest by e-mailing an abstract (of under 750 words) of the suggested paper as indicated above, along with a CV by March 15, 2018. If full manuscripts are available by that date, prospective authors should feel free to send those instead by that date. All submissions should be made to: Reem Al-Botmeh (rbotmeh [at] Birzeit [dot] edu and iol [dot] pyil [at] birzeit [dot] edu; Ardi Imseis (ai295 [at] cam [dot] ac [dot] uk) and Ata Hindi (ahindi [at] birzeit [dot] edu). For more on the Palestine Yearbook of International Law, see here.
  • CALL FOR PAPERS: 3rd ANNUAL “REVISITING THE ROLE OF INTERNATIONAL LAW IN NATIONAL SECURITY” WORKSHOP Many conversations in the U.S. about situations of armed conflict – within civil society, academia, and the U.S. government – center on “national security law,” often drawing primarily from domestic law and military perspectives.  International law is sometimes set aside in these discussions.   This workshop aims to draw the international legal aspects of armed conflicts to the forefront of national security discussions. The workshop is for public international law scholars and practitioners.  It aims to drive discussions of public international law, including international humanitarian law, international human rights law and international criminal law, into conversations, in the U.S. in particular on national security issues and situations of armed conflict. The organizers are interested in discussing scholarship and ideas that seek to bridge partisan political divides while addressing both the law and national interests.The workshop will provide an opportunity for authors to have their works in progress critiqued by established experts in the field of IHL, and will provide a networking opportunity for participants. The organizers ask only for papers that that have not yet been accepted for publication. In addition to submissions to traditional US law reviews, participants might consider the possibility of publication in the ICRC’s International Committee of the Red Cross Review, which is seeking submissions for its upcoming editions. The Review is a thematic journal covering a wide variety of issues, and to the extent that there are paper topics that overlap with “revisiting the role of international law in national security” and upcoming Review topics, the organizers encourage these submissions. The upcoming Review topics are outlined below. Please note that selection for this workshop does not guarantee that a paper will be published by the Review. The author would still need to submit the publication to the Editor of the Review for consideration. We invite you to submit a detailed abstract or draft of an article for discussion.  A small number of papers will be selected for discussion at the workshop.
    • When:  June 18th, 2018 (full day)
    • Where:  Cardozo Law School, New York City
    • Submissions:  Please send your name, current affiliation, and paper proposal to Tracey Begley at trbegley [at] icrc [dot] org
    • Deadline for submissions:  April 1st, 2018

    Co-organized by the International Committee of the Red Cross Delegation for the United States and Canada, and faculty at Loyola Law School Los Angeles, Stanford Law School and Cardozo Law School. A limited amount of travel funds may be available.

Announcements

  • On August 3-4, 2018, the University of Colorado Law School is hosting a workshop on International Law and Racial Justice. Among the central concerns of the workshop is the current place (or absence) of racial theory in international law.  You can find more information about the workshop here. The workshop is being organized by James Anaya, Tendayi Achiume, and Justin Desautels-Stein. If you are interested in presenting a paper at the workshop, please email jjdstein [at] colorado [dot] edu.

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.

Is International Law International? Continuing the Conversation

by Anthea Roberts

[This is the last post in our joint symposium with EJIL:Talk! on Anthea Roberts’ new book Is International Law International? If you missed any earlier posts here on OJall of them are linked at the end of this post. Please be sure to continue the conversation here, at EJIL:Talk!, and on our Twitter feed.]

In the movie Shadowlands, the character C. S. Lewis says, “We read to know that we’re not alone.” For me, perhaps it is also true to say, “I write to know that I am not alone.” Implicit in Is International Law International? is a series of questions: Have you seen what I have seen? Do you analyze it in the same way? If not, what has your experience been and what do you make of that? How and why are your reactions similar to or different from mine? And what does that mean regarding whether international law is, should be and can be international?

I want to thank EJIL: Talk! and Opinio Juris for hosting, and the contributors for engaging in, this sort of dialogue. Two common themes of the contributions are that my book represents the start of a conversation rather than the final word and that it provides a platform for future research. I agree. My book is a big-picture macrosketch based on detailed microobservations that seeks to challenge existing understandings. A lot of details need to completed, analyses tested, additional points noted and implications thought through. In the spirit of continuing this exchange, I offer some reflections below.

Before doing so, I wanted to note that, reading the comments, I was struck once more by how much we approach international law from our particular national perspectives. Whether it is Vera Rusinova reflecting on international law through the iron curtain, Hélène Ruiz Fabri drawing connections with debates in the French literature, Marko Milanovic considering the differences he has experienced in the US and UK academies, or Bing Bing Jia providing insights into Chinese international law textbooks, each of us brings our biography into play when analyzing our field. Of course, this observation is part of the point of my book. But it also means that we won’t be able to access the richness of this variety, in both sources and perspectives, unless we diversify our interactions and networks.

Risks and Discomfort

Ruiz Fabri was very perceptive in noting that writing a book like this was a “risky enterprise” and that it “might be a good way to displease many people.” This book indeed deals with touchy subjects. On the personal level, it suggests that we international lawyers are often not as cosmopolitan as we like to think. On the political level, it raises awkward questions about the implications that might flow from different understandings of and approaches to international law in light of changing geopolitical power.

Although the book deals with controversial issues, I think it needed to be written. I am drawn to academic issues that intrigue me or make me feel intellectually uncomfortable. This book did both. Just as many readers have felt unsettled reading it, so I felt unsettled writing it. I coped with that discomfort by seeking to render as balanced a picture as I could, typically presenting both sides of issues rather than taking a normative stand about which one I thought was preferable. I showed that strengths often contain weakness and vice versa. I subjected myself to the same critique as I asked my readers to undertake.

Given the potentially provocative nature of this book, I want to thank my OUP editors John Louth and Blake Ratcliff for supporting it. The book was unlike anything I had done previously. It did not conform to standard approaches to legal scholarship. It was clear from the outset that the work would involve shaking echo chambers and had real potential to offend. Despite these risks, they immediately and intuitively understood what I was trying to do, from our first coffee chat. I am genuinely grateful that they were unwavering in their support and insightful in their critiques.

To my surprise, instead of encountering a wall of hostility, my book has opened rather than closed dialogues. I have received emails from all around the world and often my interlocutors shared personal stories about their experiences of the divisible college of international lawyers in both academia and practice. For instance, much to my regret, I was unable to include an analysis of a Latin American state in the book. Instead of spurning it, numerous Latin American scholars have reached out to tell me their side of this story (e.g., Francisco-José Quintana about the problems with teaching the Falklands/Malvinas dispute in Argentina using UK textbooks).

The book is an invitation for self-critique and dialogue. I hope that it prompts many conversations, even if some of them are uncomfortable. Academia is meant to challenge the status quo and shake up things up. Taking risks is part of the point.

Methods and Layering

In reading the book, Ruiz Fabri found herself wondering about its nature. Was it “A sociological inquiry? A manifesto? A plea? Against arrogance? Against a new Empire? For comparison? For pluralism? Maybe a bit of all this?” This is an insightful question and one that I have pondered more since writing the book. It is also one that Paul Stephan astutely, if partially, answers.

I have come to see this book as embracing what sociologist of globalization Saskia Sassen describes as a “Before Methods” approach. Complex global phenomena and emerging or underanalyzed issues are helpfully dealt with by first stepping back and seeking to destabilize our existing understandings of the world and the conceptual frameworks we use to describe it. Often particular concepts, framings and metrics obscure as much as they reveal. This approach requires one to sketch and project, and to connect microobservations to macroforces in an iterative observational and analytical process.

As Stephan notes, such work must be done analytically prior to many other projects: my book “strips away preconceptions and mystification” with a view to setting the scene for social justice projects and instrumental and empirical analyses. For instance, although the book engages in some empirical analysis, it doesn’t pretend to be exhaustive or a champion of sophisticated methods. Similarly, the book describes and explains international law and lawyers’ fragmented reality but does not take the next step of providing a normative framework for assessing which approaches are better or worse.

Good scholarship is often completed in layers. As Stephan concludes, this book “expose[s] the forces that bring about systematically different cultures of international law in different parts of the world” but leaves others to explore “the link between disaggregated cultures and the international law that results.” It is the horse before the cart. It seeks to open our eyes to many issues, analyze their origins and effects, and provide a framework and vocabulary for talking about them. The book doesn’t answer every question but makes many new questions possible.

The same sentiment underlies Rusinova’s conclusion that the effect of this book will ultimately depend on what other international lawyers do with it. According to Rusinova, the book should be understood as a challenge to international lawyers to ask themselves, “Do I realize which boundaries surround me in the discipline and am I, at least, trying to act above them?” Thus, she concludes that “it is in our own hands to make [the book] change the ‘world of international law.’” Yet, as Ruiz Fabri notes, much will turn on how those in the privileged inner circle (the “International Bubble,” as she calls it) respond to the critique.

Promise and Perils

Jia’s contribution constitutes a very good example of analyzing the promise and perils of comparison. As Jia notes, and as I found through my study, although textbooks and casebooks from some states contain good information about the practices of those states, that does not hold true for all states. In particular, Chinese international law textbooks often draw heavily on the approach of Oppenheim and Brownlie and feature little Chinese practice or views. If these books weren’t written in Chinese (a bit of a giveaway), I could easily have mistaken them for not being Chinese, except for their treatment of a handful of issues like Taiwan and the South China Sea.

Any metric that one uses to compare international law or international lawyers across states will be limited because metrics that make sense in one context often don’t make sense in another. This problem is one of the perils of comparison and it explains why one needs to adopt many approaches and metrics to build up a more complete picture. But it is also part of comparison’s promise. Thus, rather than accept the status quo, Jia suggests that the time has come for China to adopt a new generation of international law textbooks that, among other things, give the reader more information about China’s approach. I concur.

How such a development plays out remains to be seen. The future for Chinese international textbooks seems caught between two forces. On one side, some academics are developing casebooks that are much closer to US-style casebooks, particularly in international economic law. On the other side, the Chinese government has stepped up its censorship of academics and has now sponsored the creation of a quasi-mandatory textbook on international law that is meant to feature Chinese socialist characteristics (though these attributes are apparently pretty sparse in the first edition). This struggle between nationalized, denationalized and westernized approaches is happening before our eyes and may evolve differently with respect to form and substance.

Censorship and Judgment

The last point on censorship links to an important factor that Milanovic and Julian Ku highlight. Not all states have robust traditions of academic freedom or free speech more generally. If we are going to diversify our networks and sources, how should we assess scholarly opinions coming from authoritarian states like China and Russia where there is evidence of significant external and internal censorship? This issue arises in my book in the discussion of textbooks and in my account of the virtual uniformity of Chinese and Russian academic views – as well as their conformity with the positions of their states – with respect to the South China Sea arbitration and Crimea, respectively.

I agree with Milanovic that this issue arises in my book but deserves more explicit attention in comparative international law work going forward. In fact, I am currently working on a piece with a colleague addressing this very issue. But I disagree with Ku’s conclusion that adopting a comparative international law approach necessitates descending into pure relativism. As I say in the book, recognizing “differences in the way international law is understood, interpreted, applied, and approached can be examined without adopting a relativist stance that all positions are equal” and “[w]hether a given position reflects international law depends on many factors, such as the number of states that support it [and] how widespread and representative they are as a group.”

Although I deliberately refrained from making legal judgments in the book as my purpose was to identify, explain and analyze the divisible college, I am not averse to people reaching such conclusions. Much of this is a question of sequencing. My suggested approach is:  (1) seek to engage, listen and understand, (2) seek to test your assumptions and argue your position, (3) identify and justify your framework for assessing different positions, and (4) engage in judgment.  I emphasize steps one and two in my book because too often I see international lawyers go straight to step four, missing steps one and two and simply assuming step three. Steps one and two are crucial for building knowledge, self-awareness and networks. For international law to move forward, however, one of the central challenges will be deciding when to recognize divergent interpretations as valid and when to conclude that some venture beyond the pale (step three). And this may end up being contested.

In developing such frameworks, we all need to be attentive to our blind spots and biases, but we should also pay attention to those of other national communities. I agree with Milanovic’s conclusion that the international reputation of a group of national scholars will depend significantly on their ability to take positions that are independent from those adopted by their state. Discerning the dividing line is most difficult in academies, like the Chinese and Russian ones, that have what Milanovic describes as “some non-negligible level of academic freedom.” Levels of freedom are also likely to vary across fields and issues. Scholars might have more freedom with respect to international economic law and less concerning core national interests, for instance. Although this will always be difficult to judge, it is much harder to do so if you don’t have networks in and knowledge of these academies.

In terms of the South China Sea case, I agree with Ku that the uniformity of the Chinese scholars’ views on the South China Sea worked in the end to damage their credibility and that their “going out” approach worked hand-in-hand with the government’s media campaign. However, at least based on my networks and knowledge – which are necessarily partial and subjective – I think that Western international lawyers often dismiss the objection of Chinese scholars to the SCS tribunal’s jurisdiction as being purely politically motivated when my sense was that it was usually genuinely held. By contrast, I believe that politics were at play behind the lack of criticism by some mainland Chinese scholars of China’s refusal to participate in the arbitration and abide by the award.

In addition to considering academic freedom, we also need to be aware of other socializing and incentivizing factors that might influence academics to align with their states, such as the media they watch, unusually close connections between academia and government (as in the United States) and the strategic use of research funding (as in China). Indeed, Milanovic notes that the United States has a strong tradition of freedom of speech, but non-US international lawyers often find strong synergies between the positions of US international lawyers and the US government and frequently credit that, in part, to the socializing and incentivizing factors that come with the US government/academic revolving door.

We also need to be mindful about how a failure to engage can be interpreted as an unwillingness to listen and how the Western dominance of so many international institutions creates concerns about exclusion and bias. In my book, I document systematic patterns of non-engagement across communities and lack of diversity in international institutions that have nothing to do with concerns about censorship. US academics do not generally ignore French scholars because of concerns about academic freedom. The frequent invisibility of Latin American scholarship and cases within Western international law circles has nothing to do with a concern about propaganda. There is a lot more we could do to diversify our knowledge and networks. And if we are more inclusive on steps one and two, and more reflective and explicit in how we ground our evaluative frameworks in step three, then our ultimate judgments in step four will deserve greater weight.

Conclusion

The obvious question to ask at the end of this back-and-forth is, What’s next? Many of the contributors identify where one could take a scholarly agenda from here, for example, from developing and testing instrumental theories about the link between cultural differences and approaches to international law (Stephan) to encouraging greater internationalization of self-contained academies (Rusinova). One can imagine greater in-depth studies of specific national approaches and larger empirical cross-national comparisons.

My book also works as a springboard to larger normative questions, such as what the existing diversity means for finding and justifying “international law,” especially in an age of shifting geopolitical power (Ku). These questions are currently being addressed by projects such as International Rule of Law: Rise or Decline? As I say in the book’s conclusion, I began the project by seeking to change the question from whether international law is law to whether it is international, but perhaps the challenge of our generation is in recognizing that these questions are inextricably linked.

Is International Law….Law?

by Julian Ku

One of the many reasons I am so pleased that Opinio Juris can host this discussion on Anthea Roberts’ new (and award-winning) book is that it speaks directly to and about this blog’s core audience: students, scholars, and practitioners of international law from all over the world.  When we founded this blog in 2005, we hoped to use the internet to open conversations with other scholars in the United States.  We soon found that the global reach of this blog allowed us to engage scholars and practitioners all over the world, rather than just in the United States.

But over the years, we also learned that the “global” international law audience is narrower than it sounds. Our readership was and is heavily based in the United States, Europe, Canada, Australia, and New Zealand.  This relatively narrow global readership is probably explained (as I learn in Roberts’ book) by the closer ties of language, culture, and academic exchange that exist among “Western” international lawyers.  I also realize now that this is part of the phenomenon of different clusters of international law around the world that is so wonderfully documented and analyzed in Roberts’ remarkable new book.  Her study does more than any other single work to describe and explain a state of affairs many of us in the international law world had sensed but could never fully understand.  There is no doubt in my mind that Roberts has launched an important new challenge to the international law world that even calls into question the idea of international law as law.

Roberts’ prior work, which has now been developed and amplified in her new book, has also influenced my own recent research and writings on China.  The Middle Kingdom is extensively studied and analyzed in Roberts’ work, and it is a key player in her story about how international law seems to differ in meaningful ways across national borders and among ideological and cultural clusters. I am especially grateful that she sought in Chapter 5 to include China’s reaction to the arbitration case brought by the Philippines as part of her case study in how international lawyers can fall into different “silos.” Writing about that arbitration, as readers of this blog may be aware, has been a mild academic obsession of mine for years.

But I do not draw quite the same lessons from this case study as she does. In my view, application of her comparative approach to international law necessitates taking a neutral stance on what might be a better or worse interpretation of international law.  While I agree with one of her main claims – that there are many divergent versions of international law arising out distinct national and regional clusters – I am not sure all such divergences should be treated as good faith differences.  In the case of the South China Sea arbitration, I believe Roberts underplays the importance of how governments can use international law (and international lawyers) as tools in their global diplomatic and public relations campaigns.

Roberts specifically notes how Chinese international lawyers sought to “traverse [] divides” by publishing their views on the South China Sea arbitration in English to reach a global rather than simply a Chinese audience. This is true. But as she also understates the context of these various international law essays. The unanimity among Chinese legal scholars (and practitioners) was an important part of the Chinese government’ broader media campaign to discredit and denigrate the arbitration award and the arbitration process. Their unanimity was trumpeted on various Chinese media sites. It is hard not to see the academic consensus in China as a product (at least in part) of the Chinese government’s influence and control. (Such consensus is also striking in comparison to the quite different anti-government reaction of US scholars to the US defiance of the Nicaragua ICJ judgment).

The Chinese government’s public relations campaign also included slanderous statements suggesting the South China Sea arbitrators had effectively been bribed, and that the Japanese nationality of the individual who appointed the arbitrators undermined the impartiality of the arbitral process. The silence of the Chinese international law academic community in the face of these outrageous statements is also evidence of how important the government can be in shaping a national international law approach.

Thus, while I am very much on board with Roberts’ overall project, I am enough of a practicing lawyer to wonder whether comparative international law can allow us to assess right and wrong interpretations of international law, and whether government intervention should affect such judgments of even relative legal correctness. While I was sympathetic to the argument that the South China Sea arbitral tribunal lacked jurisdiction, I was (and remain) deeply skeptical of the subsequent Chinese argument that the arbitral tribunal’s award is not binding.  I think this is not just a different approach to international law arising out of distinct national or regional silo, but it is a weak, self-serving politically necessary and ultimately ridiculous legal argument. I would grade a student’s paper badly for relying upon this argument. But does comparative international law counsel me to be more sensitive and self-aware of differences in approaches to international law?  Or should the fact that the Chinese government’s attention and control of this discussion lead me to step out of my comparativist role, at least for a moment.

For instance, I also tried to “traverse divides” by publishing my views on how “ridiculous” China’s argument is, both in English, and in Chinese (thanks to an excellent Chinese student translator and the good offices of the Financial Times Chinese edition).  I was gratified that I drew responses from Chinese scholars and I continued my foray in Chinese with this sur-rebuttal.  But the Chinese language version of my essay and sur-rebuttal in the FT was blocked by Chinese censors and have been disappeared from the Chinese internet. The rebuttals of my argument by Chinese scholars, oddly enough, remain available. My argument is not unknown to Chinese scholars, but it clearly has been disapproved of by the Chinese government. That matters, because it deters a robust and meaningful intra-Chinese discussion of an important legal issue.

In other words, while I agree there is real value in a comparativist approach, should such an approach at least discount for governmental intervention to control and shape a national approach? Does such direct governmental intervention undermine the authenticity of a distinct national and regional approach to international law?

For the purposes of her project, Roberts does not have to answer these questions.  But those of us who have benefited from the data and insights provided by her work will have to grapple with such dilemmas.  Roberts teaches us that international law is not very “international.” Does this mean it is also no longer “law”?  She doesn’t say so, but I wonder if her excellent work will ultimately point us down that road.

Mobility and Freedom in the International Legal Academia: A Comment on Anthea Roberts’ Is International Law International?

by Marko Milanovic

I’d find it difficult to think of a book more deserving of the ASIL certificate of merit than Anthea Roberts’ Is International Law International? This is especially so because this is a book about international lawyers, rather than about the law as such; it is a foray into a sociology of our profession, examining in particular to what extent that profession is really a common or shared one. The book explores many themes – internationalism v. parochialism, centre/periphery dynamics, the need for more rigorous empiricism rather than casual reliance on anecdotal evidence. Two themes, however, got stuck in my head as particularly noteworthy – probably also because both were personally relevant and I could relate to them directly as a matter of my own experience.

The first is the nature of the academic markets in international law, especially with regard to their openness to foreigners or outsiders. The second – which is less explicit in Anthea’s book, but is certainly there – is the extent to which the strength and international influence of the local academia in any given society is dependent on the level of academic freedom in that society, most importantly the ability to criticize the conduct of one’s own state or group without running the risk of suffering some significant social sanction. So let me deal with these two themes in a bit more detail.

As for the first, the level of openness of any given academic market to foreigners is in most situations a point on a rather wide spectrum. The language of instruction is of course an important consideration here, but as Anthea shows in the book it is only one among many factors. Of greater importance perhaps is how existing academic hierarchies replicate themselves, through hiring and promotion processes. Even in systems which strongly emphasize meritocracy above all other considerations – and these are probably not in the majority – the criteria for assessing merit can impose structural barriers on outsiders that are very difficult to penetrate, as Anthea well explains. If we compared top US and UK law schools, for example, we would see just how much smaller the proportion of foreign-educated lawyers is in the American academia.

This is not only the case with international law, even if international law is probably the most portable of legal subjects; in Nottingham, for example, we have foreign-educated lawyers teaching everything from constitutional law to public procurement. Nor does this have anything to do with resources – US law schools are by far the richest in the world. It is rather the structural barriers, such as entrenched career pathways and elite credentials, hiring processes (e.g. a 2/3 vote of the whole faculty rather than a decision by a small committee), the great value placed on publication in US generalist student-run law reviews and the devaluation of foreign peer reviewed journals, and so on, that make it much more difficult for an outsider to penetrate the US academic market than is say the case in the UK, Australia, the Netherlands, or Scandinavia.

Similar structural barriers of course exist elsewhere, like the habilitation in Germany, or the agrégation in France, which effectively fence out most of the academic system (sometimes with limited exceptions, such as the Max Planck Institute(s) or Sciences Po). Looking at this matter globally, the more closed systems appear to be substantially more common than the very open ones. This is especially going to be the case if the system of elite reproduction is less meritocratic, and if other disciplines which should intrinsically be more open than law is – the hard sciences, but also the social sciences and humanities – are themselves also closed. If I look at the university sector in the various countries of the former Yugoslavia, for example, the number of academic staff across all fields who were educated primarily outside the region is either zero, or very close to zero. This is certainly true of the international lawyers. And because this experience is again far more common worldwide than is the highly internationalized, open and cosmopolitan one in say the UK, this necessarily means that Anthea is right in arguing that our study of international law has to be a comparative one if it is to accurately reflect our reality.

This brings me to my second theme, which is a bit less explicit in Anthea’s book: the relationship between the external influence or standing of a local academia and the perceived level of freedom that they enjoy in their society, especially in criticising the policies of their government. Anthea touches on this topic when she examines Russian international lawyers’ engagement with Crimea, and Chinese international lawyers’ approach to the South China Sea arbitration (and the jurisdictional issues in particular). Anthea shows how (partially for widespread lack of non-Russian language ability) the conversation of the Russian international law academics is a mostly inward one, while, on the contrary, the Chinese academics have actively engaged with their Western counterparts. In both cases, however, there is near-total alignment between the academic lawyers and the respective official government positions (i.e. the annexation of Crimea was perfectly lawful, and the arbitral tribunal manifestly lacked jurisdiction).

Obviously, this topic is only relevant when there is some non-negligible level of academic freedom, as is in fact the case with both Russia and China. These societies might be authoritarian, but they are far from being North Korea. But there are nonetheless significant formal or informal costs imposed on academics who would defy the official line on matters that are regarded as being of crucial national importance – they might be fired, or not get promoted, or not get a grant, or not be allowed to publish because a supposedly blind peer review just happened to be negative, and so on. I still vividly remember how, for example, in 1998 the Milosevic regime purged Serbian universities or how the official textbook from which I had to study public international law at the Faculty of Law of the University of Belgrade had a chapter on the International Criminal ‘Tribunal’ for the Former Yugoslavia (with the scare quotes, because the official line was that the ICTY was illegally established). Academics in such societies are thus faced with a choice – leave for greener pastures (but most will not have that option, which can be extremely costly emotionally and financially); write on issues less likely to provoke controversy (e.g. air and space law); if pressed, tow the party line or at least stay quiet, under the radar; or dissent, and face the backlash and marginalization.

It is no wonder, therefore, that many of our colleagues who are faced with such unenviable choices will often take the path of least resistance. The more of them do so, the greater the internal pressure on the rest of their peers. But the more this happens, the more likely that the local group of international lawyers will lose influence externally, within with the wider international legal community, which will treat their arguments with suspicion, as nothing more than self-interested apologies.

There are, of course, significant differences between the Russian legal community’s position on Crimea and the Chinese community’s position on the South China Sea arbitration. The former matter touches on the most foundational norms of international law, which are in this case perfectly clear; the latter is jurisdictional, more technical, and more open to different reasonable interpretations. But it is precisely the fact that the jurisdictional question in the South China Sea arbitration is more open that demonstrates that the consensus of Chinese international lawyers on the issue is driven by pressures to align with the official government position, as one would have expected much more disagreement in the absence of such pressure. Technical though the jurisdictional issue might be, it is in the public mind directly related to the sovereignty question, which is part of a core nationalist narrative in China which does not admit of dissent. Externally, the unanimity only serves to undermine itself.

Here would of course come the inevitable charge of Western hypocrisy. Isn’t it equally a fact that the positions of Western international lawyers on Crimea align near-perfectly with the policies of their states? Aren’t we all doing the same thing? To that I would say that this may be true in some cases, but not generally. It was Western international lawyers who, for example, criticized the 2003 invasion of Iraq most forcefully; there are examples beyond number of (say) UK-based international lawyers litigating cases against the UK before domestic and international courts. The charge of hypocrisy has greater bite against Western (and non-Western) governments, than against the legal community as such. And this, I submit, is a direct result of the greater level of freedom that legal academics and practitioners enjoy in the West.

This freedom is, as I noted above, often a matter of degree and context. There are differences among Western countries, and there are other factors at play. For instance, my (anecdotal) impression is that the international law professoriate in the United States is more often in substantive alignment with the positions of the US government than is the case in Europe (the legality of the Iraq war being one example). This is obviously not because the level of academic freedom in the US is any lower, but because of those other factors: the more instrumental, policy-driven approach to law generally; the peculiar, foreign relations law slant to international law instruction more specifically; the fact that many American international law academics were first socialized into the profession as government lawyers; that they similarly first started writing academically on topics that they had dealt with in government; that accordingly they exhibit a greater level of identification with government policy, if not necessarily consciously so. That said, while American international lawyers might perennially be a tad closer to apology than their utopian European counterparts, recall for example how even the most government-aligned collection of such lawyers rejected the legality of President Trump’s missile strike in Syria last year with virtual unanimity.

Of course, even in the free West, in which governments and other social hierarchies do not actively punish academics for saying things that they do not want to hear, there are many subtle and not-so-subtle rewards that the government can dispense – say consultancies, invitations to the ‘room where it happens,’ or nominations for an international judgeship or some other nice such position – which will inevitably influence some in the academia. Especially if they want to be relevant. But that situation is still radically different from the actual lived experience of most members of our profession, which is significantly more constrained. My point is simply this: in engaging with this enterprise of comparative international law, we should always be aware that most international lawyers in the world today do not enjoy the same privileges that those of us based in the West do, privileges which can be lost all too easily if they are not vigorously defended. This is difficult to measure with empirical rigour, but is, I’d submit, at least as important for developing a sociology of our profession as are, say, market mobility or the universalizing reach of the English language or other, more outward-looking, patterns of dominance.

On Is International Law International? ‒ Where Next?

by Paul Stephan

[Paul Stephan is the John C. Jeffries, Jr., Distinguished Professor of Law and John V. Ray Research Professor of Law at the University of Virginia.]

First a disclosure. I have cheered on this project since Anthea Roberts began working on it. We, along with Pierre Verdier and Mila Versteeg, have collaborated on a book of essays as well as an American Journal of International Law symposium that explores the concept of comparative international law across many dimensions. I read earlier manuscripts with interest and enthusiasm. I am, in short, as on board with the project as anyone can be.

What this book does is expose the forces that bring about systematically different cultures of international law in different parts of the world. The point is not simply that some people think differently about the substance and scope of international law. Rather, the book establishes that these differences are systematic and align with traditional territorial divisions. Even accounting for normal discord and dispute among specialists, international law varies from place to place.

This fundamental point, which I regard Roberts as having proven convincingly, points in several directions at once. It invites constructivists to consider how differences in the production of knowledge among cultures leads to differences in the construction of international law. Alternatively, it provides those of us with a rational-choice, international-relations bent to consider how these different cultures relate to differences in state (and regional) interests, and how these interests then shape international law.

This observation opens the door to what the book does not do. Roberts shows us how the production of knowledge and the culture of professional expertise varies within the international law world. This is a tremendous contribution, and makes the book essential reading for anyone wanting to know what international law does in the contemporary world. One might think that these cultural differences produce differences in the content of the international law espoused. What Roberts does not do, however, is explore the instrumental implications of her central findings. She does not seek to connect specific variations in claims about international law to specific facets of the culture out which those claims arise.

There are many good reasons why Roberts does not do this. Thick description, which in the most general sense is what this book does so laudably, strips away preconceptions and mystification. It is, when done well as here, prior to any instrumental analysis. Doing it successfully is a great challenge by itself. If nothing else, the book undermines hegemonic pretensions, which is to say (mostly) the largely implicit assumption of U.S. and European international lawyers that they have successfully achieved cosmopolitan takeoff and thus speak for the entire world when they pronounce on questions of general international law. Adding on a second layer of analysis accounting for the effect of specific cultures on their products is a significantly different project. One cannot (and I do not) fault Roberts for not writing a different book.

Those of us who benefit from her project, however, might well feel the need to figure out what comes next. Now that we know how different cultures of international law are formed, how should we respond? I can think of several possibilities.

One reaction is to treat the book as stripping off the mask of universalism on the part of those who work in the empire’s center (to borrow the language of dependencia theory, for readers old enough to remember that trope) and to draw the obvious conclusions. The enlightened international lawyer should fight for the periphery, demanding the inclusion of voices from the traditionally marginalized communities as well as the suppression (through critique) of the dominant mindset. Demystification thus removes a barrier to international justice.

Wielding Is International Law International? as part of a social justice warrior’s armament is a plausible use of the book, but hardly the only possibility. Stripping away the pretense of universality from the center’s proclamations is useful, but this move alone need not destroy the case for the version of international law that the center espouses. What deep description does not do ‒ indeed, it cannot do ‒ is create a normative framework for assessing particular regimes. It removes the underbrush to allow the observer to better comprehend the social phenomena in play, but it does not supply the framework for evaluation. The presence of mystification alongside the center’s claims may hint at a certain insufficiency ‒ If the claims about international law are already attractive, why pile on with a false picture of universality? ‒ but does not itself prove the case. We still need an argument that explains how particular instances of inclusion promotes justice. Such arguments can be made, but they should not be assumed.

One might instead use the book as a means of teeing up particular empirical projects. To take an area of great interest to me, what explains the similarities and differences between Chinese and Russia claims about international law? Roberts contrasts the insularity of Russian educational and publication practices with the remarkably cosmopolitan approach of Chinese international lawyers, as indicated by both where they go to school and where (and in which language) they publish. Do these differences make a difference in what Russian and Chinese specialists say about international law? The recently published joint principles on the promotion of international law suggest substantial overlap in the Sino-Russo approach to big-picture issues in general international law. Some of these principles, such as the fundamental importance of state sovereignty, are all the more interesting because they depart from European and U.S. postures. Yet in some subfields, such as trade and investment, China’s specialists seem to have embraced differences in scope and substance from the version of international law typically promoted by Russians. Is it culture, interest, or some mix of the two that explains this combination of commonality and difference?

Others might explore other implications. Does the common European framework (admittedly under great stress at the moment) mute what otherwise might be obvious differences in claims that British and French lawyers make about international law, given the significant cultural differences that Roberts documents? Or is there manifest distance between their claims, notwithstanding their (for now) shared European commitments? Or do they mostly agree, the cultural chasm notwithstanding? To take another example, what distinguishes claims about international humanitarian law, both as to content and the rules of recognition, between the P5 states and rich pacifists such as Germany and Switzerland? Culture, or distinct military tasks and capacities?

Is International Law International? doesn’t answer these questions. Rather, what it does is make the questions possible. This is a great achievement. The community of specialists should respond first with admiration, second with humility, and third with a renewed commitment to exploring the link between disaggregated cultures and the international law that results.

The Parochialism of Western Cosmopolitanism in a Competitive World Order

by Anthea Roberts

[Professor Anthea Roberts of Australian National University is the author of numerous publications, including the topic of our joint symposium this week: Is International Law International? This is the first of several posts over the next two days on the argument in her book and reactions to it.]

We are familiar with the question: Is international law law? In my new book, I ask instead: Is international law international? Not particularly, is my answer—at least, not in the way that it tends to be conceptualized by international law academics in different states and in the international law textbooks and casebooks that they use.

When asked to reflect on the professional community of international lawyers, Oscar Schachter memorably called it an “invisible college” whose members were “dispersed throughout the world” yet “engaged in a continuous process of communication and collaboration.” But in rendering that college visible, I find that international lawyers may be better understood as constituting a “divisible college” whose members hail from different states and regions and who often form separate (though overlapping) communities with their own understandings and approaches.

In tracing these divisions and considering their consequences, I make three arguments. First, international lawyers are often subject to differences in their incoming influences and outgoing spheres of influence in ways that affect how they understand and approach international law. Second, actors, materials and approaches from some states and regions have come to dominate certain transnational flows and forums in ways that make them disproportionately instrumental in constructing the “international.” Third, existing understandings of the field are likely to be disrupted by factors such as changes in geopolitical power, making it increasingly important for international lawyers to understand the perspectives of those from unlike-minded states.

My book invites international lawyers to look in the mirror to discern and become more reflective about their blind spots and parochialism. It encourages international lawyers to recognize and speak openly about some of the socializing factors, incentives and power dynamics that shape their divisible college. It suggests that they try to see the field through the eyes of others and to diversify their sources, networks and perspectives. This call is particularly appropriate for Western international lawyers—myself included—who often study, work and publish in a Western bubble, which makes it harder for us to understand and adjust to the newly emerging competitive world order.

From National to Western Parochialism 

In an earlier blogpost titled “With Blinders On?” on Just Security, I argued that US international law often gives the impression of being US foreign relations law under a different name. By way of example, I pointed to how unusually nationalized US international law casebooks were in terms of how heavily they relied upon US cases, executive practice, legislation, academics and publications. This national focus both reflects and reinforces what Samuel Moyn has insightfully described as the “Parochialism of American Cosmopolitanism.” US insularity has many causes and consequences, from American power and exceptionalism to the locations where US international law academics typically study, work and publish.

It is common for other Western international lawyers to see such reports and feel a slight sense of glee or superiority. “Those crazy Americans,” many would say, with a knowing smile and a roll of the eyes, safe in the knowledge that they could not be accused of similar parochialism. Yet one thing that really struck home for me in this study was that though I and many of my Western colleagues were not guilty of national parochialism, we were exceedingly guilty of Western parochialism. This issue seemed to be a fitting one to raise on the European Journal of International Law’s blog and the US blog Opinio Juris.

Let me give you an example that follows from my case citation analysis on Just Security. In that piece, I pointed to how US international law casebooks were the only ones that contained a higher—and, indeed, significantly higher—percentage of cases from their own domestic courts (64%) than from international courts and tribunals (31%). To international lawyers from many other Western states, these results seem ridiculous. But what if one instead asks what percentage of all of the domestic cases cited—whether from a state’s own courts or from foreign courts—come from Western states, by which I mean states in the Western Europe and Others Group? Suddenly, the US books are no longer outliers.

 

Between 96% and 99.6% of the domestic cases cited in the most commonly used international law textbooks in these three Western states (France, the United Kingdom and the United States) come from—you guessed it—Western states. Like most international lawyers, I was aware of a level of Western bias in my field. Nevertheless, I was surprised by how stark it was when I started looking at the numbers. This pattern didn’t seem to deserve the moniker “international.”

Of course, one could leap to argue that perhaps this pattern just reflects the facts on the ground. The vast majority of domestic decisions on international law may actually have been issued in Western states, so this depiction simply reflects reality. I suspect that this is not the whole story. But even if it were, this circumstance should make us consider in more detail the biases built into the very metrics that we use when seeking to understand international law. To what extent do our metrics reflect the approaches to law we are used to dealing with domestically? And to what extent do they give us a skewed understanding of the world by focusing on some states over others?

As an English-speaking, common-law-trained lawyer, I never thought it odd when I first studied international law that an important way to understand the field was through case law, both domestic and international. This study made me much more conscious of the fact that when one applies this metric, it results in outsized emphasis on the practice of Western, democratic states in general, and English-speaking, common-law ones in particular. At the same time, this metric renders almost invisible the practice of non-Western, non-democratic, civil law states. China and Russia have made important contributions to international law practice, but you won’t usually find it in their domestic courts.

Analyzing this issue among others helped me to realize that some of the approaches to international law that seem so natural to certain international lawyers can produce an effect equivalent to looking at the field through blinders. As with the US example above, this parochialism has causes and consequences, from Western power and exceptionalism to the locations where Western international law academics study, work and publish. That many Western international lawyers are trapped in a Western bubble will not surprise anyone from outside the West or those who have read or adopted Third World Approaches to International Law. But it is an uncomfortable reality that few in the West sufficiently acknowledge, let alone contemplate its possible consequences.

From Dominance to Disruption

The ideal of international law suggests that it is constructed by drawing equally on people, materials and ideas from all national and regional traditions. In reality, some national and regional actors, materials and approaches have come to dominate much of the transnational field and international lawyers’ understandings of the “international.” This point holds true for Western actors, materials and approaches in general, and Anglo-American ones in particular. The case law cited above represents a stark example of this pattern, but many others characterize the field as well, ranging from who appears before international courts and tribunals to which sources and practice these courts typically invoke.

Recognizing this situation made me wonder about how some of these patterns might be disrupted by forces such as changing geopolitical power. After the relative hegemony of Western international law approaches in the post–Cold War period, the world is entering into what I refer to as a “competitive world order” in which power is diffusing from West to East and from North to South.  In the coming decades, the international order is unlikely to be dominated by Western, liberal democratic states to the same extent as before. A significant standoff is also emerging between Western, liberal democratic states and non-Western authoritarian ones, most notably China and Russia, across multiple domains.

Three things have become clearer since I completed this book in late 2016. First, the United States and the United Kingdom have seriously stepped back from their position as global leaders following Donald Trump’s election and the Brexit vote. Anglo-American approaches that have featured so prominently in defining international fields in the last few decades seem to be quickly receding in importance. On many issues, from trade to climate change, the West is divided and weakened. American global leadership is in question and its prestige is tarnished.

Second, several non-Western states are more actively seeking to assert themselves on the international stage. China is a prime candidate, exemplified by President Xi’s endorsement of economic globalization and expansive Belt and Road project. But these aspirations underlie many other developments, such as the battle in the recent ICJ elections between India and its former colonial master, the United Kingdom, which led for the first time to a British judge not sitting on the Court. This vote represented a sea change, breaking the traditions of granting the P5 informal permanent seats on the Court and casting votes according to informal regional group quotas.

Third, states are more openly acknowledging the emergence of a new era of great-power politics and ideological competition. Specifically, the December 2017 US National Security Strategy describes a newly emerged “Competitive World” in which great-power competition has returned and it characterizes China and Russia as “revisionist powers” seeking to “challenge American power, influence, and interests” and to “shape a world antithetical to U.S. values and interests.”

In this new competitive global order, international lawyers of all stripes will need to develop a greater awareness of the diverse frameworks and narratives through which international law events are understood and arguments are made around the world. The first step in building this understanding is for international lawyers to diversify their sources and networks in an effort to see the world from different perspectives and through other eyes. The motivation for taking this step can be founded in cosmopolitan idealism (thinking international law should be more inclusive) or hard-bitten realism (along the lines of “know thy enemy”). Either way, knowledge is key, whether one ultimately accepts the alternative approaches as valid or not.

Developing such an understanding can be hard for Western international lawyers because often where we study, work and publish adds little to diversifying our perspectives. Just as those sitting in the United States often find it hard to look beyond their national standpoint, so many Western international lawyers find it hard to look beyond their geopolitical perspective. Our networks and sources are typically not national, but neither are they fully international. Yet, as power becomes more disaggregated among a larger number of more diverse states, international lawyers will experience a heightened need to adopt a “comparative international law” approach to come to grips with these differences.

In seeking to develop such an understanding, international lawyers must also be aware that some transnational flows are likely to be asymmetrical, leading to different patterns of diffusion and knowledge. For instance, elite Chinese international lawyers are far more likely to study in Western states than vice versa. Thus, Western materials and approaches are more likely to be found in China than the reverse (the power of diffusion), but Chinese international law academics are more likely to exhibit broad comprehension of Western perspectives on international law than the reverse (the power of knowledge). As China becomes an increasingly significant international player, it will want to disseminate its own approaches to international law more widely, whereas international lawyers in the West will need to deepen their knowledge of China’s interests, interpretations and approaches.

Conclusion

International law aspires to be universal; but it is also, and inevitably, a deeply human product. No international lawyer can understand all aspects of the field from all viewpoints, myself included. We are all prisoners of our own networks, languages, education, histories and trajectories. For this reason, this book should be understood as a conversation starter rather than the final word on the subject. It seeks to render into words, and provide a framework for understanding and analyzing, experiences that many international lawyers have had and yet are often not spoken about or are confined to conversations over cocktails rather than deemed worthy of scholarly treatment.

It is this sort of dialogue that I am grateful to be starting with this thought-provoking collection of international lawyers. This book raises many questions and offers only some answers. I am not yet sure what it all means or where we go from here. As the very definition of a parochial English-speaking, Western international lawyer, I have much to learn and I look forward to seeing my book—and the transnational field of international law—through the eyes of my interlocutors.

Introducing the Opinio Juris/ EJIL:Talk! Joint Symposium on Anthea Roberts’ “Is International Law International?”

by Julian Ku

We are thrilled to announce that over the next few days we will be co-hosting with EJIL:Talk! a discussion of Anthea Roberts’ new prize-winning book Is International Law International? (Oxford University Press, 2017). The book has recently been awarded the American Society of International Law’s  2018 Certificate of Merit for “Preeminent Contribution to Creative Scholarship.” As the ASIL Book Awards Committee states:

In this book, Professor Roberts takes us along as she chases the title’s question down an international law rabbit-hole to reveal a topsy-turvy world in which international law is parochial and the invisible college is rendered visible. Roberts turns a beguilingly simple question into a globe-trotting, multi-method quest for a map of international law’s players and meanings. Simultaneously irreverent and serious-minded, Roberts develops an original research agenda that takes her and the reader through the migratory flows of international lawyers around the world, the divergent methods through which they are educated, and the different professional tracks through which they are socialized. The book does not just dissolve international law’s myths of universality; it is a nascent sociology of the field of international law and the beginning of a new field of comparative international law. In an era in which Western dominance over international law no longer looks certain, this book provides the tools for a more nuanced understanding of international law’s politics, revealing the deeper meanings and stakes of current debates.

To discuss the book’s findings and main claims, EJIL:Talk! and Opinio Juris have assembled a distinguished group of international lawyers from all over the world. The discussants on EJIL:Talk! will be Professors Hélène Ruiz Fabri (Max Planck Institute Luxembourg for Procedural Law) , Vera Rusinova (National Research University ‘The Higher School of Economics’, Moscow), Bing Bing Jia (Tsingua University, Beijing). On Opinio Juris, the discussants will be Professors Paul Stephan (University of Virginia), Julian Ku (Hofstra Law School) and Marko Milanovic (University of Nottingham). . We are grateful to all of them for taking part in this discussion.The symposium will open with a post later today on both blogs by Anthea introducing her book. Readers are invited to join the discussion with comments on the posts.

The PTC’s Bizarre Request for Additional Information About Afghanistan

by Kevin Jon Heller

As Patryk Labuda noted earlier today on twitter, the Pre-Trial Chamber (PTC) has ordered the OTP to provide it with additional information concerning the investigation in Afghanistan. Here are the key paragraphs of the order:

3. The Chamber observes that the Prosecutor seeks authorisation to initiate an investigation for crimes committed on the territory of Afghanistan from 1 May 2003 onwards, as well as crimes committed within the context of the situation in other States Parties from 1 July 2002 onwards.2 However, the supporting material provided, particularly in relation to the structure, organisation, and conduct of the Afghan Forces – collectively referred to by the Prosecutor as Afghan National Security Forces or Afghan National Defense and Security Forces (“ANSF”) – mostly falls within the time period 2011 to 2014. Further, little to no information has been provided regarding the structure and organisation of the Islamic State operating in Afghanistan, also refer red to as “Daesh” or “Islamic State Khorasan Province”3. Similarly, the information provided with respect to the structure of the United States of America (“US”) forces falls mainly within the period of 2001-2008, with regard to interrogation policies of the US forces within the period of 2001-2006 and with regard to the conduct of US forces within the period of 2003-2011.

4. The Chamber is of the view that further information is required for the Chamber’s determination under article 15(4) of the Statute. Accordingly, it orders the Prosecutor to submit to the Chamber the following:

a. Any publicly available report from the United Nations Assistance Mission in Afghanistan (“UNAMA”) on the treatment of detainees, apart from the reports from 2011, 2013, 2015 and 2017 already submitted;

b. Any publicly available report from the Afghanistan Independent Human Rights Commission (“AIHRC”) on torture, apart from the report from 2012 already submitted;

c. The United Nations (“UN”) Secretary-General reports to the General Assembly on the topic: “The situation in Afghanistan and its implications for international peace and security”, from the years 2003, 2004, 2010, 2013, 2014, 2015, and 2017;

d. Any publicly available report from the UN Secretary-General to the General Assembly on the topic “Children and armed conflict in Afghanistan”, apart from the report from 2008 already submitted;

e. Further clarification and information, to the extent possible, about the structure and organisation of the Islamic State operating in Afghanistan; and

f. Further clarification and information, to the extent possible, about the structure of the US forces for the time period after 2008; for the interrogation policies of the US forces for the time period after 2006; as well as for the conduct of the US forces for the time period after 2011.

This is actually the second time that the PTC has asked for more information. On 5 December 2017, it ordered the OTP to provide it with “media reports and article 15 communications concerning allegations attributed to special forces of a number of international forces operating in Afghanistan,” as well as as a list of incidents where, in the OTP’s view, “there is a reasonable basis to believe that crimes falling within the jurisdiction of the Court were committed during military operations conducted by international military forces.”

The first request made some sense, given that the PTC generally asked for information either possessed only by the OTP (the communications) or reflecting of the OTP’s internal analysis of the situation in Afghanistan (the list of incidents). The new request, however, is bizarre. To begin with, there is no reason that the PTC could not obtain the information in the first four categories itself, given that it specifically wants the OTP to provide it with “publicly available” information. I know for a fact that the judges have legal officers and access to google. Any reasonably competent researcher could obtain the relevant reports in an hour or so.

A similar criticism could be offered of category five — assuming that the request is not based on the PTC’s belief that the OTP has non-public information about the structure of IS — as well as of the first two requests in category 6. After all, the OTP’s information about interrogation policies comes largely from publicly available sources such as the summary of the Senate Torture Report.

The final request in category 6 — about the conduct of US forces after 2011 — makes some sense, given that the PTC is basically asking the OTP to justify its conclusion that there is a reasonable basis to believe US forces are responsible for mistreating detainees. But I share Patryk’s confusion about why the PTC thinks it needs that information to decide whether to authorize the Afghanistan investigation. Art. 15(4)’s “reasonable basis to proceed” standard is anything but onerous. Such a basis exists, according to Art. 53, as long as the available information (1) “provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed”; (2) admissibility is not an issue; and (3) there are no “substantial reasons to believe that an investigation would not serve the interests of justice.” There is no question that the OTP’s request for authorization satisfies requirements 1 and 3, and it cannot seriously be argued that complementarity — the first aspect of the admissibility requirement — counsels against opening the Afghanistan investigation. As the request itself notes, none of the relevant parties (the Afghan government, the US government, and the armed groups) have have investigated or prosecuted those most responsible for international crimes in Afghanistan.

Which leaves gravity, the other aspect of admissibility. The only plausible interpretation of the PTC’s order is that it does not think it can assess the gravity of the situation in Afghanistan without the requested information. But that makes little sense. Can it be seriously maintained that the collective actions of the Afghan military between 2011 and 2014, the actions of the Taliban and IS since 2003, and the actions of US forces and the CIA between 2003 and 2011 are not sufficiently grave to warrant a proprio motu investigation? I dare anyone to read the OTP’s superbly argued and documented 181-page request for authorization and reach that conclusion. (Especially when Afghanistan is compared to, say, the Burundi investigation, which the PTC had no trouble authorizing.)

To be sure, that does not mean the OTP has provided sufficient information concerning the actions of all of the parties at all of the relevant times. But that is where the final clause of Art. 15(4) comes in (emphasis mine):

 If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

If the OTP brings a case against an individual whose criminal responsibility cannot be properly assessed without additional information of the kind the PTC wants, it can demand that information when the defendant challenges admissibility or the OTP seeks confirmation of charges. There is no reason why the PTC should demand that information now.

I have little doubt that the OTP will quickly comply with the PTC’s order. But there is no legal or evidentiary reason why it should have to. The PTC already has more than enough information at its disposable to authorize the Afghanistan investigation.

Letter to the Israeli AG About the Deportation of African Asylum Seekers

by Kevin Jon Heller

The following is an open letter sent by 25 of the most eminent Israeli international lawyers to Dr. Avichai Mandelblit, Israel’s Attorney General, explaining why the government’s move to expel thousands of African asylum seekers from Israel violates international law. I think the letter, which is brilliantly argued, will be of great interest to our readers.

The letter is long, so I’ve put it after the break. Here are the signatories:

Prof. Orna Ben-Naftali, College of Management Academic Studies
Prof. Eyal Benvenisti, Tel Aviv University and Cambridge University
Prof. Tomer Broude, Hebrew University
Prof. Iris Canor, College of Management Academic Studies
Atty. Avinoam Cohen, Tel Aviv University and the College of Management Academic Studies
Dr. Natalie Davidson, Tel Aviv University
Prof. Aeyal Gross, Tel Aviv University
Prof. Guy Harpaz, Hebrew University
Prof. Moshe Hirsch, Hebrew University
Dr. Tamar Hostovsky Brandes, Ono Academic College
Prof. David Kretzmer, Hebrew University and Sapir College
Dr. Tally Kritzman-Amir, College of Law and Business
Dr. Eliav Lieblich, Tel Aviv University
Dr. Doreen Lustig, Tel Aviv University
Dr. Itamar Mann, Haifa University
Dr. Tamar Megiddo, Hebrew University
Prof. Frances Raday, Hebrew University and College of Management Academic Studies
Dr. Daphne Richemond Barak, Interdisciplinary Center Herzliya
Prof. Yael Ronen, Sha’arei Mada Umishpat Academic Center
Dr. Yaniv Roznay, Interdisciplinary Center Herzliya
Prof. Yuval Shany, Hebrew University
Dr. Sivan Shlomo-Agon, Bar-Ilan University
Dr. Michal Saliternik, Netanya Academic College
Prof. Muhammad Watad, Zefat Academic College
Dr. Reuven (Ruvi) Ziegler, Reading University and Oxford University

For questions and communications regarding this memorandum, contact Itamar Mann at imann [at] univ [dot] haifa [dot] ac [dot] il.

Yes, the Rule of Law Must Remain Central to the Debate on Trumpism

by Ian Seiderman

[Ian Seiderman is the Legal and Policy Director, International Commission of Jurists]

Andrew O’Hehir, an ordinarily astute analyst of US political skullduggery, adopts a contrarian posture when it comes to Trump, Trumpism and the rule of law. He thinks that all the brouhaha about trampling on cherished rule of law traditions misses the point. What’s so precious anyway, he suggests, about mutable law written by corrupt, unprincipled or ideologically charged politicians? Writing in Salon recently, O’Hehir characterizes the rule of law as “a poorly defined principle”:

It seems ludicrous to claim that anyone, of any party or any ideology, actually sees the law as a neutral or abstract force rather than a naked instrument of power.

Nothing has traditionally been more central to Americans’ quasi-religious understanding of their democracy than the importance of the rule of law, which can be broadly defined as the notion that laws should govern people rather than the other way around. (Spoiler alert: There’s an enormous paradox baked into that from the beginning, since it’s always people with power who make the laws in the first place.) That was essentially the basis for the constitutional separation of powers laid out by Thomas Jefferson and James Madison, which was meant to ensure that the law itself would remain independent of those who enacted it, enforced it or interpreted it.

O’Hehir goes on to point out the obvious: that certain long discredited tenets like the absolute sacrosanctity of property rights and the natural order of slavery were once grounded in principles of law in the United States. He adds that it is in fact the contested political terrain of liberal democracies with their market economies that “produce [a] vision of the law as a neutral, independent and almost mystical force that stands outside the control of any person or any party.”

For those of us who consider the rule of law to be a near-universal principle that can operate comfortably within a broad – though hardly infinite – range of political and economic arrangements, O’Hehir’s arguments do not sit well. He is hardly the first commentator to assume that the “rule of law” is tantamount to “rule by law”: indeed there are advocates of this “thin” notion of the rule of law, epitomized by the writings of 19th century British jurist A.V. Dicey and the “Singapore model”. But this line of thinking ignores the now more dominant conception of the rule of law as not simply a value neutral construct addressed to forms and procedures, but a norm-laden overarching governance framework. (In fairness to O’Hehir, his point is ultimately that the rule of law is an elusive concept, not that it must mean rule by laws imposed by the powerful.)

While the normative concept of the rule of law has long antecedents, a watershed moment for its entrenchment in international law discourse was the Nuremberg and other legislation that emerged during the Third Reich. Thus the Justice Case (United States v- Alstoetter) before Military Tribunal III, the defendants that included judges, prosecutors and officials of the German Ministry of Justice could be held responsible for a criminal enterprise by the very fact that they enacted or enforced legal statutes and decrees, such as the Night and Fog decree. Respecting those perverse laws necessarily meant not respecting the rule of law.

The organization which I serve, the International Commission of Jurists, devoted the first 15 years of its existence during the 1950s and 60s, to defining what we then called the “dynamic” conception of the rule of law. The idea was that the rule of law is not an abstract notion, but necessarily tied to other legal and normative content, especially human rights principles. Rule of law was a broad organizing concept under which a range of correlatives principles could be grouped. And to O’Hehir’s point, those normative principles are quite apart from the underlying subject matter of particular statutory legislation or administrative rules at issue. This view has over time gained widespread international currency, promoted by leading judges, like the late Lord Tom Bingham, endorsed at the political level and serving the basis for major work from UN agencies such as UNDP and OHCHR.

A definitive enumeration of rule of law principles may have so far eluded universally accepted codification, but building on the historic work of the ICJ there have at least been attempts at enumeration. One example, where most of the elements are more or less uncontroversial, has the imprimatur of the States of the UN Rights Council. Its Resolution on human rights, democracy, and the rule of law, adopted in 2012, highlights, among many other elements, the principles of the separation of powers; legality; equal protection before courts and under the law; non-discrimination; accountability, including criminal accountability for human rights and IHL violations; the independence and impartiality of the judiciary; the subordination of the military to civilian authorities; access to justice; gender equality; and the right to effective remedies for rights violations.

Whether adherence to rule of law in this kind of progressive framing is by itself sufficient to address the myriad transgressions by Trump and his acolytes, is questionable, but it is certainly part of the equation. For instance, the idea that a State’s prosecution services must be functionally independent of the political arms of the executive is a well entrenched rule of law principle which Trump and his subordinates have certainly run over rough shod, especially in respect of the FBI and Special Counsel investigations on “collusion” and obstruction of justice. The fact that some administered laws could themselves theoretically run afoul of the rule of law or constitute poor policy is a critical but distinct issue that should not blind one to the indispensability of the rule of law itself.