Normally, we post our conference announcements weekly, but we just got word of one tomorrow that’s worth flagging. The British Institute of International and Comparative law (BIICL) will be holding a Rapid Response Seminar tomorrow, September 11, from 4-6 pm to discuss ‘Humanitarian Intervention, International Law and Syria’. As the title suggests, the conversation will discuss whether humanitarian intervention falls within the corpus of international law and, if so, whether it can be applied to the current Syrian situation. Robert McCorquodale (BIICL) will chair the panel, with scheduled speakers including Dapo Akande (Oxford), Sigrun Skogly (Lancaster), Guglielmo Verdirame (King’s College) and Marc Weller (Cambridge). The seminar will take place in the Senate Room, Senate House, Malet Street, London WC1E 7HU. For more information see here.
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I’ve spent a lot of time thinking about treaties. And I’ve read lots and lots of them over the years. From time to time, however, I encounter something I find truly novel on the treaty front. A case in point, was this story in IT World yesterday. It refers to pending negotiations between the United States and Germany on an agreement not to spy on each other:
The U.S. has verbally committed to enter into a no-spying agreement with Germany in the wake of disclosures about the U.S. National Security Agency’s secret surveillance programs.
The verbal commitment was given in talks with the German Federal Intelligence Service (Bundesnachrichtendienst, BND), the sole foreign intelligence service of Germany, the German government said in a news release on Wednesday. This means that there must be no governmental or industrial espionage between the two countries, it said . . . No further details about the agreement were given. The German Federal Ministry of the Interior reached on Monday could not immediately respond to a request for comment.
For readers interested in cyber issues, I wanted to briefly note a Federalist Society Teleconference I was invited to participate in tomorrow at 2 pm (John Yoo is the other panelist). The session is titled, “Attacks, Exploits and Intrusions: When Is a Cyber Incident an Act of War? What Responses Are Warranted?”
Generally, Federalist Society Telefora are open only to its members. However, in this case, they’ve kindly invited interested readers of Opinio Juris to dial in as well. For more details on the event, see here. The call-in number is 888-752-3232.
International lawyers are used to explaining to skeptics the functional case for diplomatic immunity by emphasizing the benefits it provides. Here’s the 5 second version: we want our diplomats to be able to communicate with their host States since the alternative to communication is often (and certainly used to be) conflict. To ensure open communication we need diplomats who feel free to operate without fear of being coerced, pressured, extorted, etc., So, we grant diplomatic immunity to ensure freedom of communication and do so reciprocally as a check against abuses, with the only remedies being waiver or a declaration of persona non grata.
Of course, these benefits do not come without costs. And the British Government at least has been keeping a ledger of such costs. In particular, the City of London would like diplomatic missions to pay London’s congestion charges. It looks like a large number of governments, including my own, have decided not to pay. The running tally of unpaid charges? 67 million pounds! That’s quite a sum, but, it doesn’t even attempt to monetize the costs of the criminal offenses committed (or alleged to have been committed) by diplomats. Here’s how the BBC summarizes that sort of bad diplomatic behavior from 2012:
[T]he Foreign Office was informed of 12 “serious offences” committed by people with diplomatic immunity in 2012.
These are defined as offences which could carry 12 months or more in prison, as well as drink-driving and driving without insurance.
He said 10 of the alleged offences were driving-related, including six for drink-driving – three by Russians.
The non-driving offences alleged were abuse of a domestic worker and causing actual bodily harm.
In the “most serious” cases the UK asks foreign governments to waive immunity to allow prosecution, or to withdraw an accused diplomat.
About 22,500 people get diplomatic immunity in the UK and Mr Hague said “the majority” abide by UK law.
To my mind, none of this outweighs the substantial benefits of diplomatic discourse I referenced above. Still, I do think it’s important to appreciate the costs of doing diplomacy. What do others think — should governments have to pay congestion charges (let alone parking tickets?). More importantly, is 12 serious offenses out of a population of 22,500 a good number or a bad one? And if you think it’s bad one, is there a way to fix the diplomatic immunity cost-benefit calculus without throwing the whole system under the bus?
Today, the U.S. Department of State released the 2012 edition of its Digest of U.S. practice in international law (for a brief history of these Digests see the accompanying press release here). Under the editorship of CarrieLyn D. Guymon, the Digest addresses a number of key international legal developments from 2012, including the U.S. response to the crisis in Syria and the (failed) attempt to get Senate Advice and Consent to the Disabilities Convention and UNCLOS among other treaty action. In addition, there was plenty of activity on the litigation and arbitration front:
U.S. government involvement in litigation and arbitration also contributed to the development of international law in 2012. In U.S. courts, the United States filed amicus briefs in two Hague Abduction Convention cases; opposed petitions for certiorari in two extradition cases; participated in litigation challenging the constitutionality of statutes implementing treaty obligations; and filed statements of interest and suggestions of immunity in several cases involving foreign sovereigns and heads of state. State and federal courts issued important decisions with international law implications, including: the Nevada Supreme Court’s remand of the death penalty case of Carlos Gutierrez due to the lack of consular assistance; the Fourth Circuit’s opinion that the definition of piracy under the law of nations is the definition contained in Article 15 of UNCLOS; and U.S. Supreme Court decisions that most of Arizona’s state immigration law provisions are preempted by federal law, and that only individuals—not corporations—can be liable under the Torture Victim Protection Act. The United States also made submissions to arbitral bodies, including a voluminous submission to the Iran-U.S. Claims Tribunal in Case B/1, several submissions to NAFTA and CAFTA tribunals, and submissions in arbitral proceedings initiated by the Republic of Ecuador against the United States which resulted in dismissal of Ecuador’s claims for lack of jurisdiction.
Article 37(1) of the 1961 Vienna Convention on Diplomatic Relations (VCDR) provides that a diplomat’s immunity extends to cover “[t]he members of the family of a diplomatic agent forming part of his household … if they are not nationals of the receiving State.” As the Ottawa Citizen reports, the question is whether Canadian courts applying the VCDR should take the term “family dog” literally:
A lawyer representing the German Embassy is raising the diplomatic immunity flag over a carpenter’s plan to sue the ambassador and his wife after their dog bit him at their official residence last November…. [E]mbassy lawyer Kurt Anders says any such lawsuit would fail in court because Mark Liboiron and his lawyer, Howard Yegendorf, do not have a case against [Ambassador] Werner and Eleonore Wnendt….
Anders states Liboiron was “the author of his own misfortune” when he was bitten by Milou, a golden retriever, on Nov. 29. “The act of keeping a dog unleashed or uncaged was not the cause of your client’s alleged damages. Rather, it is your client’s provocation of the dog that led to any alleged harm. In fact, but for your client’s particular act of calling and taunting the dog, there would not have been any harm.” . . . .
Anders also takes exception to the pending legal proceedings against the Wnendts. “I am positive that a Barrister and Solicitor with your experience is aware of the Foreign Missions and International Organizations Act. … This statute provides for absolute immunity from criminal and civil liability in this situation. Since you must be fully aware of this fact, we wonder why the threat of legal proceedings is contained in your letter.” …
In a Public Citizen story last January, Liboiron said he had a calming influence on Milou, who often growled and snarled at his co-workers, and even at residence staff. Liboiron says the ambassador’s wife was impressed by the way Milou responded to him. But on Nov. 29, he says, after extending his right hand to Milou as the dog approached him, tail wagging, things went terribly wrong. The dog sniffed his hand and then suddenly chomped on it and wouldn’t let go. The carpenter says he furiously swung his arm back and forth several times, eventually smashing Milou into a wall before the dog released his hand. Beside the bite, Liboiron says he suffered damage to his arm, shoulder and neck from swinging the dog. He was on painkillers and underwent therapy for several weeks. He figures he lost about $8,000 in wages….
That the embassy would go [the diplomatic immunity] route, even before there was any threat of a lawsuit from Liboiron, was emphatically denied in January by former German press attaché Peter Finger. When Dolyn Developments, Liboiron’s employer at the time, could not get the German mission to reimburse it for about $5,000 in wages it paid the carpenter while he was recovering at home, it accused the embassy of abusing diplomatic immunity. Finger told The Public Citizen that the refusal to compensate Dolyn had nothing to do with diplomatic immunity. He said it was the embassy’s belief that Dolyn should recover the money it paid Liboiron from the WSIB [Ontario’s Workers Safety and Insurance Board]. Dolyn stopped paying Liboiron about two weeks into his recovery after he decided he was going to sue….
[Liboiron's lawyer] Yegendorf says that if the Germans present a motion that the lawsuit be dismissed due to diplomatic immunity, he will get a chance to cross-examine in trying to convince the court the lawsuit should proceed based on what Finger told the newspaper in January. “Finger clearly, in speaking, was speaking as a representative of the German government … and I think his statements bind the German government.” Yegendorf says Finger’s remarks played a part in his client’s decision to sue for lost wages as well as pain and suffering….
Meanwhile, Liboiron says he ate into his savings after he missed another three weeks or so of work to recover, without pay. “Pile of BS. I wish it had never happened. It’s not like I asked the dog to bite me.”
OK. So, it’s not actually a case of diplomatic immunity for a dog; the immunity to be invoked will be that of the Ambassador and his wife. Still, there’s some interesting questions here. Does the German press attaché’s statements constitute a waiver of immunity? I’m guessing it’s not express enough to do so. In addition, in the United States, a plaintiff might have tried for the non-commercial tort exception under § 1605(a)(5) of the 1978 Foreign Sovereign Immunities Act (which, of course, requires a suit against the sovereign — Germany). I wonder if there’s a Canadian equivalent provision that could play in here? I’d welcome comments from those with more knowledge of Canada’s approach to diplomatic immunity. Any dog lovers out there should feel free to weigh in as well.
I usually defer to An and Jessica’s (excellent!) work in flagging international law-related conferences and events. But, I wanted to call particular attention to a conference I just learned about that Duke Law School is co-hosting with the University of Geneva next month at the Duke-Geneva Institute of Transnational Law on the Role of Opinio Juris in Customary International Law. The event is well located (and timed) given the International Law Commission’s current project on customary international law. But unlike many conferences, where all those not in attendance can see is a schedule of attendees and/or paper topics, the Duke-Geneva schedule generously includes links to the papers themselves. I’m working my way through them for my own research on the functions interpretation serves in international law. And although I’d note they seem to be mostly of the short, discussion paper variety, if the first one by Curt Bradley is anything to go by (he identifies and critiques existing paradoxes in definitions of opinio juris and offers a new descriptive and normative thesis for identifying CIL based on state preferences), these papers will be well worth reading. I’m also interested to here from anyone who attends the conference itself what reception these papers receive, and in particular, what the various ILC members who will be commenting on several of them have to say about customary international law itself.
The tendency in the United States is to think about cyberthreats exclusively in terms of US interests (a tendency I’ve certainly followed on more than one occasion). Hence, the extended attention to questions of whether and how Congress should regulate cybersecurity. But, of course, cyberspace — and cyberthreats — are global. Every nation is now faced with developing a strategy for responding to these threats, whether through the deployment of government resources, private industry, or public-private partnerships. So, I read with interest Hitachi’s English-language summary of Japan’s new Cybersecurity Strategy, which was adopted by Japan’s Information Policy Council earlier this week (you can read the policy itself here in Japanese). Here are some highlights:
- Japan (like most other States) has moved away from using “information” as the adjective to describe the issue; so it’s now cybersecurity, not information security
- Japan’s National Information Security Center will be given more authority to play a “command” role in dealing with cyberthreats
- Japan will revisit what counts as “critical infrastructure” to include targets, which, if attacked, would have significant socioeconomic effects or impact civilians more broadly.
- Japan will increase consultation with the private sector and pursue more information sharing.
- There will be a “Cyber Clean Day” to raise user-awareness of cyberthreats and ways to combat them.
- A Cyber Defense Unit will be established within Japan’s Self Defense Forces with responsibility for countering cyber-attacks that constitute part of armed attacks;
- In terms of international relations, the Japanese government intends to continue to study how international law, including international humanitarian law, is applicable to cyberspace; establish confidence-building to avoid any escalation of tensions; and prioritize cooperation with the United States.
Japan is truly a high-tech culture, but I was surprised during my Spring semester there, how little attention cyberthreats have received; indeed, the most visible “cyberthreat” has been anonymous users making threats via the Internet (this was the dominant story line this past Spring on the cyber front). I saw much less attention to the threats posed by large-scale DDoS attacks, let alone infiltration of critical infrastructure by Advanced Persistent Threats. So, it is a welcome development to see the Japanese government moving forward on these issues. That said, I don’t see much in the way of “new” ideas here; almost everything Japan’s government is talking about doing there is on the table here in the United States (with the possible exception of a “Cyber Clean” day, which I attribute to the fact that the Japanese populace is much more willing to undertake collective enterprises than the U.S. citizenry). Still, I’m very interested to see how Japan approaches the question of cyberattacks and the use of force, especially given its Constitutional structure with respect to military activities. Will they adopt Harold Koh’s mutli-factored, contextualized standard? Or, will they be one of the first States to accept the Tallinn Manual’s effects-based approach? Or, is there some other way they could approach the issue? Comments welcome, especially from those readers who can offer more insights into how the Japanese government is thinking about these topics.
Hat Tip: Mihoko Matsubara
Things are starting to heat up around the pending U.S. Supreme Court case Bond v. United States, which will test the scope of Congress’s power to implement U.S. treaties. The case is a big one — challenging as it does the holding of the most famous of U.S. foreign affairs law cases — Missouri v. Holland and Oliver Wendell Holmes’ wonderfully written (if somewhat ambiguous) opinion. The amicus briefs are pouring in. And with lots of lurid facts regarding affairs, revenge and chemical weapons, I assume the case will garnering increasing interest from the main stream media.
There’s already plenty of scholarship on (a) the scope of the treaty power (I’m a fan, if not always a follower of, the work of Curt Bradley, David Golove and Ed Swaine on this topic) as well as (b) Congress’s power to implement U.S. treaties (jump-started by Nick Rosenkranz). Most of that work employed originalist research along with textual and structural arguments (my own contribution was to note the Executive’s self-regulation with respect to relying on Missouri).
Amid the many many pages of treaty power-related research, however, there’s been remarkably little academic attention to subsequent historic practice — how the implementing power was perceived after the framing and before Holmes’ opinion in Missouri v. Holland. So, it’s with great interest that I read Jean Galbraith‘s new article — Congress’s Treaty-Implementing Power in Historical Practice. It examines that history and comes to a somewhat surprising conclusion: prior to Missouri v. Holland, both those who favored and those who opposed expansive uses of the U.S. treaty power believed Congress had authority to implement otherwise valid U.S. treaties. That’s a finding that clerks and others working on the Bond case might want to investigate and think about a bit more. Obviously, it’s not going to be determinative, but I’d assume the historical practice should be referenced and incorporated into whatever outcome the Court reaches.
For those interested in a more nuanced summary of Jean’s article, here’s her abstract:
Historical practice strongly influences constitutional interpretation in foreign affairs law, including most questions relating to the treaty power. Yet it is strikingly absent from the debate presently pending before the U.S. Supreme Court over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause, even if this legislation would otherwise lie outside its enumerated powers. Drawing on previously unexplored sources, this piece considers the historical roots of Congress’s power to implement U.S. treaties between the Founding and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress relied on the Necessary and Proper Clause in passing legislation implementing treaties. Notably, both opponents and supporters of a strong treaty power accepted Congress’s power to implement treaties under the Necessary and Proper Clause, even though they did so for quite different reasons. This consensus helped lead to the growing practice of treaty non-self-execution, a practice that in turn has led Congress to play an increased role in treaty implementation. The historical practice revealed in this piece supports the conclusion that Congress has the power to pass legislation implementing treaties under the Necessary and Proper Clause, even where no other Article I power underlies this legislation.
There’s lots of serious international and national security talk to be had today following yesterday’s NDU address by President Obama. But, as part of my continuing quest to track international law in popular culture, I offer readers a bit of Friday afternoon levity:
No, I did not make up that title. The Onion did via an author(s) who clearly knows far too much about the law of treaties. After all, a neophyte might poke fun at the paradox of Article 6′s assertion of general treaty-making authority for IO’s in a treaty. But not the Onion. They tackle larger issues such as was “the ILC’s decision to model the VCLTIO provisions as closely as possible on the structure and terminology of its mother treaty really wise, considering the vastly different characteristics of international organizations?”
Truly inspired. And although one could take offense at the juxtaposition of photographs of a famous female actress with descriptions of international law, I’d think the Onion could have posted 9 photographs of anything from naval vessels to Frank Lloyd Wright homes and captions like this one would still be funny:
Hold on just a sec here. She’s beautiful, witty, down-to-earth, AND she reminds you that the Conference was unable to resolve the question of the rights and/or obligations that might arise for states’ members of an international organization from a treaty to which that organization is a party? Is this girl actually real?
In any case, I’m now drafting a petition to the White House urging President Obama to support quick Senate action on the VCLTIO, and maybe, just maybe, they’ll take a look at the little treaty that preceded it — the 1969 VCLT.
P.S. I really hope whoever authored this got high marks on their international law exam — or at least now appreciates how such knowledge can come in handy in the unlikeliest of scenarios.
I got my first taste of international law some 25 years ago when I joined my high school’s model UN team. So, what does it says that today’s high school students have model cyberwar teams? The link’s a bit short on details, but, I wonder whether they have a student playing the lawyer on each team? I’d imagine any cyberwar scenario must trigger serious legal questions (e.g., the rules for active defense, distinction, and proportionality). Still, I’m guessing the answer is “no”. Indeed, I’d bet the cyberwar gaming model has yet to integrate legal rules let alone norm entrepreneurs to advocate for them. Readers with more info are welcome to weigh in.
Hat Tip: Eugene Hsue
This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.
In my previous response to Ashley Deeks’ article, “Consent to the Use of Force and the Supremacy of International Law,” I examined some of the practical, doctrinal, and systemic implications associated with Deeks’ challenge to international law supremacy. As I noted there, I do think the problem of unreconciled consent requires attention, if not a solution, in the use of force context. I would prefer that solution to come from domestic law. Nonetheless, to the extent international law is asked to fix this problem, I’d like to explore the context in which it would have to do so, and suggest an alternative solution to the problem that avoids giving domestic law supremacy over host State consent.
Deeks suggests her duty to inquire (and the invalidity of any subsequent unreconciled consensual agreements) could arise via state practice or a modification to VCLT Article 46. I think both paths are problematic if State consent takes a treaty form (in contrast, if it’s a political commitment, I think a total or partial override of that commitment in favor of domestic law is much easier). In the treaty context, State practice favoring a duty to inquire runs up against VCLT Article 42(1):
1. The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only through the application of the present Convention.
This isn’t to say customary international law cannot override States’ treaty obligations under the VCLT (or the VCLT’s status as customary international law) but it’s not as simple an analysis as if States were creating a duty to inquire on a clean slate. The VCLT purports to be an “exclusive” list of grounds for invalidating State consent, which cuts against finding new or additional grounds for invalidity even in the use of force context. (more…)