Author Archive for
Duncan Hollis

An Introduction to the Oxford Guide to Treaties

by Duncan Hollis

Here’s a quick follow-up to my book announcement last week.  With OUP’s kind permission, I’ve posted the Introduction to the Oxford Guide to Treaties on SSRN.  So, for those looking for a more detailed explanation of the book, its goals, and its methodology, feel free to download it there. Here’s the abstract:

From trade relations to greenhouse gasses, from shipwrecks to cybercrime, treaties structure the rights and obligations of states, international organizations, and individuals. For centuries, treaties have regulated relations among nation states. Today, they are the dominant source of international law. Thus, being adept with treaties and international agreements is an indispensable skill for anyone engaged in international relations, including international lawyers, diplomats, international organization officials, and representatives of non-governmental organizations.

This Introduction introduces readers to the Oxford Guide to Treaties, a volume that seeks to provide a comprehensive review of the rules and practices surrounding the making, interpretation, and operation of these instruments. Leading experts provide essays designed to introduce the law of treaties and offer practical insights into how treaties actually work. Foundational issues are covered, including what treaties are and when they should be used, alongside detailed analyses of treaty formation, application, interpretation, and exit. Special issues associated with treaties involving the European Union and other international organizations are also addressed. These scholarly treatments are complimented by a set of model treaty clauses. Real examples illustrate the approaches treaty-makers can take on topics such as entry into force, languages, reservations, and amendments. The Oxford Guide to Treaties thus provides an authoritative reference point for anyone involved in the creation or interpretation of treaties or other forms of international agreement.

The Oxford Guide to Treaties

by Duncan Hollis

I had a good day yesterday. I received a package in the mail from Oxford containing copies of my book – The Oxford Guide to Treaties. It represents the culmination of a three year effort on my part to compile a comprehensive and current guide to treaty law and practice.  To do this, I started with a fairly simple pThe OGTremise — in this age of specialization, why not ask the world’s leading experts on various issues of treaty law and practice to write about their particular areas of expertise and edit those contributions together in a way that covers the entire field.  With these academic explanations as a starting point, I then sought to build a set of sample treaty clauses — examples of how existing treaty texts have addressed the manifold issues associated with constructing what has now become the dominant form of international cooperation.  I’ll admit the effort proved quite a bit more daunting and rigorous that I had imagined at the outset.  But, looking at it last night, I’m feeling truly thrilled with the results.

The truth is, moreover, I couldn’t have done this book without a lot of help — the OUP staff was phenomenal (not to mention patient) with my sundry questions and suggestions.  And, of course, this project wouldn’t exist without all my fellow contributors.  They were universally thoughtful and committed to the idea of laying out the state of play in their respective areas, including existing doctrines, disagreements, and areas where progressive development may be warranted.  I could fill a whole blog post (and may yet still) acknowledging what each of the twenty-seven contributors brought to the table and how grateful I am to each of them.  For now though let me single out David Bederman who authored his chapter in what he knew to be the final months of his life.  That sort of effort leaves me speechless.

I hope to blog more about the book in the coming months. But, for those readers interested in purchasing it –  you can do so today in Europe. U.S. readers can order it now as well, although I understand U.S. copies won’t be published till mid-October. In the meantime, for those interested in knowing more about the book, the final table of contents follows after the jump.

[UPDATE:  OUP tells me that the book will be out next week in the US for American readers interested in getting a copy, not mid-October as I originally suggested].

Essential International Law Cases for the Classroom (Six Years Later)

by Duncan Hollis

As summer winds down, I’m beginning to look ahead to the coming semester in which I’ll be teaching public international law after a couple of years’ hiatus.  As a result, I’ve spent the week, re-working my syllabus (and thanking Ecuador for giving me a wonderfully topical way to start off the class).  Beyond current events, however, I’ve once again spent some time procrastinating thinking about those international law cases I “must” have my students read — essential elements of the international law canon if you will.  I’ve done this before — six years ago, in fact, I posted a top-5 list of public international law cases and encouraged readers to contribute their own “must-reads” for students entering the field of international law.  Here’s the list I came up with then:

(1) The S.S. Lotus (France v. Turkey), 1927 PCIJ (Ser. A) No.10
(2) Mortensen v. Peters, 8 Sess. Cas. (5th Ser.) 93 (1906)
(3) Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States) 1984 ICJ 169, 1986 ICJ 14
(4) Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)
(5) United States-Import Prohibition of Certain Shrimp and Shrimp Products (“Shrimp Turtle”) DS58/AB/R (1998)

I still like this list a lot.  But, on reflection I’d probably remove Shrimp Turtle in favor of an older chestnut like the Reparations Case given that earlier cases’ import for the field of international institutional law (I also wonder about Filartiga as the best read on human rights, and although I’m inclined to keep teaching it in a U.S. classroom, I can see the argument for a case like Soering instead).

Of course, I hold no monopoly on making these sorts of lists.  So, I thought I’d get those of you prepping your own courses (not to mention students preparing to continuing their international law studies) to chime in with further suggestions. What cases would you say every international lawyer must read?

Will the Colorado Massacre Change US Positions on the Arms Trade Treaty?

by Duncan Hollis

Not likely it seems. The tragic shootings in Aurora, Colorado may be responsible for moving President Obama to talk about gun control as he did yesterday in New Orleans, despite a noticeable earlier reticence to engage that topic.  But that speech was clearly aimed at a domestic audience, emphasizing a need for improved domestic regulations and responses to gun violence.  There was no mention of the on-going talks in New York that seek to regulate the international trade in arms and (at least originally) ammunition. By most accounts, those talks aren’t going terribly well as negotiators enter the final 36 hour push to adopt a text before negotiations end on Friday.

On Tuesday, the Conference Chair, Ambassador Moritan of Argentina, circulated a new draft text that excluded any regulation of ammunition, which some States and many NGOs like Oxfam had wanted covered.  As David Bosco describes it at The Multilateralist, one of the key obligations is also now clouded by a purpose requirement (which restricts arms trade for certain purposes, such as committing genocide, rather than just regulating the trade of specific arms themselves).  Also absent are third-party compliance mechanisms. Now, none of these things are required in order for the negotiators to conclude a treaty.  And this would be far from the first instrument to be heavy on rhetoric and light on changes to the status quo.  But what does seem interesting here is the narrative that puts most, if not all, of these developments squarely on the shoulders of the United States.

Standing alone, I’m not surprised by the US position(s) on what the treaty should look like — it seems consistent with what I posted earlier this month.  The Obama Administration is seeking to thread a very fine needle here — achieving some international regulation of the arms trade via treaty that it could sign onto without triggering much in the way of constitutional, let alone political, objections (so far, its efforts on the latter front aren’t going so well, given how little the last month of negotiations has done to assuage those who oppose the idea of an arms trade treaty entirely).  Still, as news reports circulate about the Colorado shooter’s on-line purchases of guns and some 6000 rounds of ammunition, it does put the Obama Administration in an awkward position, especially if any of that ammo had foreign origins (although the shooter’s guns and protective gear appear to be of US origin, I’ve not seen anything one way or another on the origins of that ammunition).  As the UN Conference is seeking to adopt a treaty text by consensus, the US can always stand firm and oppose provisions on ammunition or additional controls on State behavior.  In doing so, however, the Obama Administration risks being put in the spotlight as anti-gun regulation at the very time when it would like to convey the opposite impression.

Chris Borgen and Opinio Juris on NYC TV

by Duncan Hollis

Our own Chris Borgen recently did an interview about Opinio Juris on a New York City Cable Show, Today’s Verdict.  You can watch it here.  Chris talks about the origins of the blog, past successes and our more recent work (mostly for an audience unlikely to know much about international law).  To top it all off, Chris looks great on TV. Good job Chris!

Welcome to the Blogosphere Arms Control Law

by Duncan Hollis

Via an e-mail from Dan Joyner I learned today about a new blog he’s founded — Arms Control Law.  Here’s the pitch from one of the inaugural posts:

As the name suggests, this blog will be devoted to discussion and analysis of arms control law subjects. I wanted to start this blog because all of the current blogs in the arms control area focus on either technical or politics/policy views of arms control. There has been no blog that provides a serious forum for rigorous discussion of legal issues relative to arms control, by arms control legal experts – until now!

The team of core bloggers at www.armscontrollaw.com is:

Professor Dan Joyner, University of Alabama School of Law

Dr. Marco Roscini, University of Westminster Faculty of Law

Mr. Pierre-Emmanuel Dupont, Rochelois, Besins & Associe

Dr. Zeray Yihdego, Oxford Brookes University Faculty of Law

Professor Eric Myjer, University of Utrecht Faculty of Law

Professor David Fidler, University of Indiana School of Law

Professor Barry Kellman, Depaul University College of Law

Professor Dieter Fleck, Formerly of the German Ministry of Defense

Professor James Fry, University of Hong Kong Faculty of Law

That’s a pretty impressive list of contributors.  I’m looking forward to hearing what they have to say!

New International Law Resources: The 2011 US Digest and a Nuclear Treaty Database

by Duncan Hollis

Two quick research-related items.  First, I’m pleased to report that the 2011 Digest of United States Practice is now available on the State Department website.  Here’s the description from today’s press release:

The digest provides the public with a record of the views and practice of the Government of the United States in public and private international law. The official edition of the 2011 Digest is available exclusively on the State Department’s website at: www.state.gov/s/l/c8183.htm. Past digests covering 1989 through 2010 are also available on the State Department’s website. The Digest is edited by the Office of the Legal Adviser.

The Digest traces its history back to an 1877 treatise by John Cadwalader, which was followed by multi-volume encyclopedias covering selected areas of international law. The Digest later came to be known to many as “Whiteman’s” after Marjorie Whiteman, the editor from 1963-1971. Beginning in 1973, the Office of the Legal Adviser published the Digest on an annual basis, changing its focus to documentation current to the year. Although publication was temporarily suspended after 1988, the office resumed publication in 2000 and has since produced volumes covering 1989 through 2011. A cumulative index covering 1989-2006 was published in 2007, and an updated edition of that index, covering 1989-2008, was published in 2010.

I’m a huge fan of the digests (indeed, my first post-JD book purchase was a rather expensive complete set of Moore’s Digest, which I’ve since supplemented with the ensuing sets and volumes). The fact that the digest is now available electronically and no longer requires large monetary outlays is a service the State Department should be proud of.  And, on a more substantive note — check out Chapter 4, which includes information on both the ACTA negotiations and early US briefs in the Bond litigation, which Peter Spiro has since blogged about.

Second, back in April I posted a list of on-line treaty databases that scholars and practitioners might benefit from using in their work.  Recently, Jim Keeley of the University of Calgary’s Political Science Department called to my attention his work over the last quarter century compiling more than 2000 bilateral civilian nuclear co-operation agreements.  Although full-texts of these agreements are not always available, in many cases his database contains source information that includes the treaty texts.  I understand from Mr. Keeley that his list has been made available in the nuclear non-proliferation and co-operation arenas for some time, but I’m pleased to report that he’s willing to have it available more widely.  So, for those readers interested in treaties in the nuclear non-proliferation and cooperation contexts, check out his database here.

July is Arms Trade Treaty Month

by Duncan Hollis

At one time in the mid-1990s, it seemed like a week couldn’t go by without some large gathering of States seeking to hammer out the terms of a new multilateral treaty with aspirations for universal membership.  Such treaty negotiations have become a rarer phenomenon today with most meetings now emphasizing implementation of, and compliance with, existing treaties.  And where new norms are called for, treaties are no longer the default vehicle — many States now favor using political commitments (e.g., the Copenhagen Accord) as an alternative to the more traditional treaty form.

Still, from time to time, treaty negotiations and all the diplomatic machinations accompanying them return to center stage. July appears to be one of those times.  Starting today and running through July 27, the UN is launching a new treaty negotiation in New York for an Arms Trade Treaty.  The UN General Assembly first proposed such a treaty in December 2006 in its Resolution 61/89.  You can review a summary of the work of the preparatory committee since then here, including the Chair’s 2011 non-paper that outlines what an Arms Trade Treaty might look like.  A compilation of State reactions to the Chair’s non-paper is also available.

The pitch for an arms trade treaty is a simple one — there are treaties regulating almost every other good as it is traded across borders; as one pro-treaty NGO representative put it, “It is an absurd and deadly reality that there are currently global rules governing the trade of fruit and dinosaur bones, but not ones for the trade of guns and tanks”.  The argument goes on to suggest that this absence of regulations means that weapons can be traded to and misused by government forces or end up in the wrong hands of criminals, pirates, terrorists, etc., who then perpetuate death and destruction.

On the other hand, there are significant obstacles that may limit or obstruct any arms trade treaty. For starters, under the current rules of procedure, the treaty’s adoption will require consensus, meaning one State (think the US or Russia) could block it (it is possible though that a text supported by a sufficient number of States might be put before the UN General Assembly itself, which requires only a super-majority vote).  Second, as the UN’s Register of Global Reported Arms Trade indicates, there’s a lot of arms traffic (and thus money) at stake.  Thus, there is a wide array of stakeholders out there whose interests may not coincide with the sort of trade regulation that NGOs like Amnesty International envision.  Third, there’s a looming fight over whether to include ammunition within the treaty, which will obviously have a fairly significant impact on the proposed treaty’s scope.  And to the extent the treaty tries to regulate trade with specific actors (e.g., terrorists), there will undoubtedly be definitional and labeling issues that may make the treaty difficult to implement (for example, there is still no UN-accepted definition for terrorism).

As for the United States, the Obama Administration shifted course in 2009 and agreed not to oppose the current negotiations (which the Bush Administration had opposed in favor of better national controls).  Still, the US faces a few daunting issues in any arms trade treaty, most obviously, that any focus on arms, even one limited to regulating trade in arms, engenders 2nd Amendment concerns and domestic opposition from those who resist federal laws or regulations relating to guns (and this will be true I suspect even if the Obama Administration negotiates a text that it believes steers clear of any U.S. Second Amendment jurisprudence).  There’s also a question of continued US trade in arms to Taiwan and how the treaty would address whose law regulates the importation of weapons into Taiwan (with the possibility that the government of the People’s Republic of China might use any treaty to advance its position on Taiwan’s status).

In other words, there’s a lot on the table in New York this month.  And I’m sure this post has only scratched the surface.  So, I’d welcome reader input on other issues or views about the negotiations’ chances for success (or failure).  I’d also welcome any pointers to a daily digest of the negotiation’s progress along the lines of the invaluable IISD reporting service that serves such a wonderful updating and reporting role in the international environmental context.  I expect I’m not the only one interested in seeing how things progress.

Wanted: Best-Selling Novelist Who Needs Advice on International Law

by Duncan Hollis

Long-time readers may recall that I have a standing offer to employ my services as a technical consultant for any Hollywood producer or New York Times best-selling novelist looking for accuracy in popular portrayals of international law.  And we here at Opinio Juris regularly like to make hay of how popular culture interprets international law and international relations.   For our latest installment, consider Brad Thor’s recent novel, Full Black.  On the whole, it’s a well-written, fast-paced thriller (sufficiently engaging that I read the entire book during a cross-country flight yesterday).  The tone though is pretty preachy at times, with the various heroes being libertarian, vigilante former US military types versus a George Soros-type globalist villain who wants world government and will use an al Qaeda-type network to get there.  I was fine with all that, even mildly amused by some of the political dialogue among the characters.  But there was one passage that gave me pause:

Torture was something he had used only as an absolute last resort.  He loved to hear TV pundits and others cite the Geneva and Hague conventions.  Putting aside the fact that most of them had never read any of those treaties, the key fact that they all missed was that America’s Islamist enemies were not a party to these agreements.  What’s more, the conventions strictly forbade combatants from hiding and attacking from within civilian populations.  Lawful combatants were also required to appear on the battlefield wearing something, whether a uniform or even just an armband, identifying them as combatants — overgrown bears and high-water pants didn’t count.

The long and short of it was that if one party refused to sign on and follow the rules, it couldn’t expect any sort of protection from those rules.  And as far as Harvath was concerned, those who championed the extension of Geneva and Hague to Islamic terrorists were uninformed at best and apologists at worst.  Believing his country to be made up of good, reasonable people, he preferred to put the terrorist protectors in the former category.

Three things struck me on reading this.

First: once, just once, can’t a best-selling novelist do as much consulting and research on international law as they do on covert tactics and operations?  To be clear, I like talking to my ex-Navy SEALS friends as much as the next guy, but I don’t know that they have to be the exclusive repository of all knowledge for these sorts of projects.

Second, will I ever encounter a blockbuster, whether in book or movie form, that portrays international law as something patriots can believe in, as opposed to a barrier to some protagonist’s against-all-odds quest for justice and the American way?  Seriously, where’s the book on international law as a vehicle for American interests or even one where the plot depends on preserving the gains of some international compromise from which Americans and others all benefit?  I’m not asking that we lose the bang-bang shoot-em up that makes for good reading, but couldn’t international law be used to help move the plot along rather than as a target for snarky asides?

Third, there’s the claims about international law itself in the text.  Now, I have read and cited to Geneva and Hague law pretty regularly in my scholarship.  I’m also pretty familiar with the international legal system and how treaty law works.  And I certainly am no apologist for terrorism having served in the US State Department for some years.  But . . . well, let’s just say there’s an impressive mix of the accurate with the inaccurate in Thor’s text when it comes to when international law applies, to whom it applies, and how it applies.

So, here’s my summer pop-quiz for interested readers.  Identify what Thor’s protagonist gets wrong about international law, including the “Geneva and Hague Conventions”.  Feel free to chime in on what he does get right as well. And, for those of you best-selling novelists needing advice on international law for some new project, call me.  We should talk.

The Case of Enrica Lexie: Lotus Redux?

by Duncan Hollis

The Lotus Case is a pillar of international legal education.  Generations of international law students have studied the PCIJ’s opinion that Turkey had not acted in conflict with principles of international law in prosecuting a French national — Lieutenant Demons — for his role in the collision of a French steamer — the S.S. Lotus – with a Turkish vessel — the Boz Kourt – resulting in the death of 8 Turkish sailors and passengers.  The staying power of the Lotus decision is all the more remarkable in that its specific holding has long since been superseded.  The Court’s view that a ship is part of a State’s territory no longer holds.  The 1952 Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in matters of Collision limited jurisdiction over collisions on the high seas to the flag state or the state of nationality of the crew, a position reiterated in Article 11 of the 1958 Geneva Convention on the High Seas and now Article 97 of the 1982 UN Conventions on the Law of the Sea (“In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national“).

Now comes the case of the Enrica Lexie, which seems destined to test the lessons of Lotus and the international maritime law it engendered (the case even has its own Wikipedia entry).  The Enrica Lexie is an Italian-flagged tanker, which in addition to a crew, had a detachment of six Italian marines on board to deter pirate attacks.  On February 15, 2012, two of those marines shot and killed two Indian fisherman on board a fishing boat, the Saint Antony. The facts surrounding the incident are still contested.  The location of the shooting remains disputed, with claims that it occurred at 14 or 22 nautical miles off of India’s coast.  Moreover, the events leading up to the shooting are equally murky.  The marines and crew of the Enrica Lexie insist they only fired warning shots against what they believed was a pirate craft, which may or may not have been the Saint Antony or some as yet-unidentified third vessel.  They also insist they had first tried to use other signals to deter the craft’s approach.  In contrast, the fishing crew suggests they were waiting for the tanker to pass when they were fired on without provocation.

When the Enrica Lexie ended up in an Indian port a few days later (whether it did so voluntarily or under the direction of the Indian Coast Guard is disputed), the two marines were detained and eventually charged with murder under the Indian Penal Code. The two were subsequently released on bail on May 30. The next court hearing on the case is scheduled for tomorrow, June 18.

Although I’ve yet to review the Indian law directly, India appears to base its prosecution on domestic laws allowing jurisdiction where a crime is committed against Indian citizens on an Indian ship. Furthermore, India has relied on the SUA Convention as a basis for granting it jurisdiction.  That treaty — to which both India and Italy are parties, seeks to ensure appropriate legal action against certain offenses, including, under Article 3(1)(a) and (g), acts of violence against persons on board a ship likely to endanger its safe navigation that results in death or injury.  Article 6 further requires a State to “take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 3 when the offence is committed: (a) against or on board a ship flying the flag of the State at the time the offence is committed . . .”

Italy, meanwhile, has vociferously insisted that it has jurisdiction over the incident.  In April, Italy paid 10 million rupees to the families of each of the two victims to settle any civil claims.  But it continues to contest any Indian prosecution, saying that (i) the marines are elements of the Italian State and are entitled to sovereign immunity and (ii) that any prosecution should occur under Italian law given that they were on an Italian flagged vessel in international waters. An Italian prosecutor has opened her own investigation into the shooting.

In short, this case looks a lot like Lotus with Italy playing the role of France and India taking on the Turkish assignment.  There are significant differences, of course, in the facts of the two cases, and those differences may in the end lead to a different outcome.  That said, as I discuss below the fold, I do think both cases raise similar basic questions about the nature of the international legal order, which explains why we still study the Lotus 85 years on and why attention to the Enrica Lexie should not be limited to the populations of Italy and India.

Should There Be an International Treaty on Cyberwarfare?

by Duncan Hollis

That’s the question being asked this past week over at US News & World Report‘s Debate Club.  To answer it, US News assembled 7 experts who, with the exception of Bruce Schneier, replied in some form of the negative (see e.g. the responses of Herb Lin (no, or not yet), James Lewis (it’s not workable) Sean Lawson (it would be premature, unnecessary, and ineffective); Martin Libicki (focusing on international norms would be better); John Lindsay (it’s the wrong sort of solution); and Lawrence Muir (it’d be ineffective)).

Now, I’m a big fan of several of the contributors — I love Herb Lin‘s NAS work on the difficulties of distinguishing cyber-exploitations (aka espionage) from cyber-attacks (which don’t just steal information but harm the computer network or the infrastructure it supports); Martin Libicki‘s work on cyber deterrence is simply a must-read for anyone interested in thinking about military and State operations in cyberspace; while James Lewis and Bruce Schneier have well-deserved reputations for thinking deeply about cybersecurity issues.  And, the responses, short as they are, make for great (and occasionally) provocative reading.  That said, I’ve got three complaints about the set-up and the content of the so-called “debate” itself:

1) Where is the international law view?  Seven experts were invited to comment on whether or not a treaty is a good idea, and not one of them is an international lawyer?  That’s like asking whether IPv6 is a good idea and not including the views of a computer programmer.  Of course, other views are welcome, but it would certainly have helped the debate to include someone who works with treaties for a living.  And, to be clear, it’s not like international lawyers have uniform views on this issue — I’m pretty sure Jack Goldsmith is much cooler to the treaty form than I am, but I still think he’d offer different or additional rationales than the one’s posed so far.

2) Outside of Russia, does anyone really want a treaty on cyber arms control? The US News question suggests — and many of the responses assumed — that the only possible way a treaty can regulate cyberthreats would be through some analogue to a Cold War arms control treaty or a treaty banning cyberwar in the same way the Kellogg Briand Pact purported to ban warfare.  Now, it’s true Russia and a few others have pushed for such results, but those efforts have never really garnered much, if any, support in the West. Thus, I think focusing the debate onto this question misses the larger issue, namely, whether there should be some treaty or treaties dealing with cyberspace more generally?

Welcome to the Blogosphere Cyber Dialogue!

by Duncan Hollis

Just a quick note of welcome to a new blog from my friends at the University of Toronto’s Munk School of Global Affairs.  As I noted a while back, Ron Deibert and others have been putting together a great annual interdisciplinary conversation about cyberthreats, the most recent of which was Cyber Dialogue 2012.  Now they’re moving the conversation into blog form.  The first post deals with recent discussions of the Flame virus and the need to emphasize its political ramifications. Given the existing Cyber Dialogue network, I’m confident this blog will benefit from great contributors and great readers.  I’m looking forward to adding it to my daily stack of must-reads.