So talks on a new cluster bomb treaty have collapsed due to the refusal of countries party to the 2008 Cluster Bomb Convention to sign on to a less restrictive treaty that would have included the U.S, Russia, China, India and other key military powers. 

The draft treaty was vigorously promoted by the United States and had the backing of other major users and producers, including China, India, Israel and Russia. It reflected the increasing stigmatization of a weapon recognized as causing unacceptable harm to civilians and seen as having lasting effects on development for decades after conflicts have ended.

The effort was rejected by a group of 50 countries from Africa, Asia, Europe and Latin America, including many nations that had signed on to the 2008 Oslo Convention. The Oslo agreement imposed a comprehensive ban on the use, production, stockpiling and sale of cluster munitions.

The United States argued that the draft treaty, which would have banned the use of cluster munitions produced before 1980, presented an opportunity to regulate the major users and producers of the weapons that hold an estimated 85 percent of global stockpiles but had not joined the Oslo Convention, including the United States

So we are left with an extremely restrictive cluster bomb treaty that doesn’t reach 85 percent of the world’s cluster bombs, and we reject a less restrictive treaty that would have a wider much more effective reach.  I get the idea that international law has an important expressive value, but surely practical reach has got to considered at some point.

The imminent collapse of the eurozone (and maybe the global financial markets as well) makes for terrifying reading. It also is one reminder of how the success of regional and international legal institutions has depended on the general health of the global economy  (and of wealthy states in Europe, North America, and East Asia).  Three stories from today, both big and small, remind me of just how powerful economic forces can be.

1) The eurozone is (according to the Economist) a few weeks away from collapsing absent some drastic measure to save it. Yet the EU’s main institutions seem helpless and European Commission leaders are squabbling. The real decision seems to be in the hands of Germany’s leader Angela Merkel. I don’t pretend to know what the right answer is to this crisis, but if the eurozone breaks apart, it is hard to imagine the EU survives in its current form.  Interestingly, the choice appears to be even greater fiscal union and dominance by Brussels, or giving up on the euro project and going their separate ways. It does make me nervous that the UK Foreign Office is preparing for civil unrest in the eurozone as a result of a possible euro collapse in the next month.  It also makes me nervous that the U.S. Federal Reserve may be preparing a “shock and awe” intervention into the European sovereign debt market. In any event, the EU as a gradual project of ever closer union through the forms of international law (e.g. treaties and such) seems unlikely to continue without substantially different institutional mechanisms (referendums anyone?).

2) The Kyoto Protocol is heading toward an ignominious expiration, with key participants like Canada already signaling they will not sign an extension, and may not even stay in the system until the 2012 expiration date. The cost is the protocol is a huge reason why even the EU is demanding big changes.

3) And on a much smaller note, the ICC has been complaining that their host country, the Netherlands, are being a little bit too dutch in refusing to continue paying the rent for the ICC’s temporary quarters in the Hague.  The ICC President mentioned this issue when he visited Hofstra recently.  It sounds like the ICC needs about 40 to 50 million euros (or perhaps some other safer currency) to get it to 2015 when its new building opens.  This amount shouldn’t be a problem but it is a sign of our new age of austerity that the open checkbook for international criminal justice is also coming to an end.

I haven’t been following Australia’s new law requiring plain packaging for tobacco products, but I am a bit surprised that Philip Morris has filed a notice of arbitration claiming the law violates Australia’s bilateral investment treaty with Hong Kong.  Here is PM’s argument:

Australia is in breach of the BIT because plain packaging:

• Amounts to unlawful expropriation of PMA’s investments and valuable intellectual property without compensation (Article 6(1))
• Fails to provide fair and equitable treatment to PMA’s investments in Australia (Article 2(2))
• Unreasonably impairs PMA’s investments in Australia (Article 2(2))
• Fails to provide full protection and security for PMA’s investments in Australia (Article 2(2))
• Breaches Australia’s international obligations in relation to PMA’s investments (Article 2(2)) by violating The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), the Paris Convention for the Protection of Industrial Property and the WTO Agreement on Technical Barriers to Trade (TBT)

My initial (not very informed) take is that the Article 2(2) “fair and equitable treatment” argument is stronger than the Article 6(1) expropriation argument. The expropriation argument will have to overcome the BIT’s exception for acts taken “under due process of law, for a public purpose related to the internal needs of that Party, on a non-discriminatory basis…”  It is worth thinking about the whether the typical protections for investments provided by BITs should incorporate IP protections. It is a plausible argument, but I doubt it will prevail.  But I encourage any commenters with more expertise to jump in!

Reports are a little uncertain, but it sounds like Libya will not comply with the ICC Prosecutors’ arrest warrant and turn over Muammar Qaddafi’s son Seif al-Islam el-Qaddafi.

ZINTAN, Libya (AP) – Libya’s new leaders said Sunday they will try Moammar Gadhafi‘s son at home and not hand him over to the International Criminal Court where he’s charged with crimes against humanity. The government also announced the capture of the toppled regime’s intelligence minister, who is also wanted by the court.

As I suggested in an earlier post, Libya does have an obligation under UNSC Res. 1970 to cooperate with the ICC Prosecutor, and this obligation probably includes the obligation to turn over alleged war criminals.  To be sure, Libya might be able to avoid the obligation to surrender Seif Qaddafi if it tries Seif Qaddafi itself, which it says it is planning to do. But there is a good argument that it has to turn him over first, and then file a challenge to the admissibility of the case on the grounds that it is now willing and able to try Seif Qaddafi himself. This is a procedural point, but an important one. And since Libya apparently has no real court system, there is little chance of them getting him back once they turn him over. So it is not surprising they will hold on to their prisoner, and start the bargaining process with the ICC and the UNSC.

Here is a nice example of how international organizations and international lawyers can conspire to make international law seem ridiculous.

Bus and subway workers had a right to strike in 2005 and their leader was wrongly jailed, a United Nations agency has found.

The International Labor Organization said the state’s Taylor Law, which makes it illegal for public workers in New York to walk off the job, violates core principals expressed in international law — and a treaty ratified by the U. S. Senate.

Fines imposed on workers and Transport Workers Union Local 100 should be returned, and former Local 100 President Roger Toussaint should be “compensated” for his short jail stint, according to the agency’s decision.

A copy of the report can be found here. I am not an international labor lawyer, but I wonder at the report’s blithe assertion that public transportation workers do not provide ”essential services” justifying limitation on their ability to strike. But more to the point, the report does not allege that the U.S. has violated any international obligations that it actually agreed to or that it is bound to comply with under customary international law.  Nor does the complaint here seem to make this argument either, since it ultimately calls on the U.S. to ratify the relevant treaties. I am flattered that the complaint cites my work as evidence that state governments have an independent power to determine how to comply with international law.  I think that is right, I just don’t think that the U.S. or New York has agreed to follow principles of international law that have not been alleged to have achieved the status of customary law.

The ILO knows this, or should know this. It is counterproductive and slightly ridiculous to issue a report chiding the U.S. government for not abiding by obligations that it is not bound to abide by.  The only result here it to lessen, rather than increase, respect for the efficacy and importance of international law.

Here is a story that no one (here in the U.S. anyway) is paying attention to:

Russia’s accession to the WTO cleared a major hurdle when the WTO Working Party on its accession approved, ad referendum on 10 November 2011, the package spelling out Russia’s terms of entry to the organization. The Working Party will now send its accession recommendation to the 15 —17 December Ministerial Conference, where Ministers are expected to approve the documents and accept Russia as a WTO Member.

Apparently, a last-minute deal with Georgia sealed the deal, and Russia will become the last of the “BRICs” to join the WTO (assuming the U.S. Congress will play ball, which I assume it will since Russian imports threaten no U.S. industries, and Russia has enjoyed low tariff status in the U.S. since 1992 anyway). 

What is the significance of this? Short term, it is not a very big deal. Russia is not currently one of the world’s most dominant economic players, but it obviously has a very important long-term role in the world economy. And Russia is agreeing to subject itself to WTO rules for trade and investment, which may revive foreign interest in doing business there.  A big moment for the WTO, though, that has received very little attention as other big news (the euro crisis) has overshadowed.

Eric Posner points out the NATO intervention into Libya appeared to violate numerous norms of international law (and maybe domestic U.S law as well).  He suggests that it is further evidence that legal norms don’t really matter much for international military actions.

But if the Libya intervention turns out to be a political and moral victory, it also illustrates once again the motto, inter arma silent leges – in times of war, the law falls mute. Both international and U.S. law took a drubbing alongside Qaddafi’s ragtag army, casting further doubt upon the already tenuous notion that international military actions can be conducted on a legal basis.

Posner makes a number of great points that I had been wondering about myself.  For instance, I am struck by the utter silence from the leading U.S. international law commentators on the legality of the Libya intervention under the U.N. Charter.  After all the grousing about the U.S. interpretation of its authority under prior U.N. Security Council Resolutions to invade Iraq (see this exchange Chris and I had back in 2005 about Iraq), there is nary a peep in the U.S. international law academy about NATO’s rather creative interpretation of its Security Council mandate.

4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, ….

Uh…did NATO really stick to this mandate? There are reports that a U.S. drone strike was made on Qaddafi’s convoy shortly before his eventual capture and killing. Why exactly was his death necessary to “protect civilians and civilian populated areas under threat of attack.”?  It is hard to see how this mandate was obeyed, without the type of interpretive stretching that most international law scholars typically condemn.  I would be interested to hear from any folks who have offered a legal defense of the NATO campaign in Libya under the U.N. Charter.

Interesting:

Today FIDH and LDH filed a criminal complaint, together with an application to join the proceedings as a civil party against persons unknown before the Court in Paris concerning the responsibility of the company Amesys, a subsidiary of Bull, in relation to acts of torture perpetrated in Libya. This complaint concerns the provision, since 2007, of communication surveillance equipment to Gaddafi’s regime, intended to keep the Libyan population under surveillance.

Up until now, there has been very little activity in foreign courts seeking to sue or hold companies legally liable for violations of international law. I actually can’t tell from this report what the basis of the allegation is though, since it sounds like it is a claim that the company has violated French law criminalizing torture, and not a direct assertion of a violation of international law. Still, if anyone has access to the complaint, please post it in the comments or email it to me so I can post it (it should give me a chance to practice my French!)

Just a quick note on the news reports about the internal Obama Administration legal debate over the use of cyberattacks in the Libya conflict. These reports seem to confirm Stewart Baker’s complaint that cyberwar capabilities are being shaped by legal concerns as much as, if not more than, policy goals.  Two small observations:

1) Following David Fidler’s point here, how is the legality of cyberwar attacks a difficult issue in Libya, given that the Administration concluded that drone attacks are not “hostilities” within the meaning of the War Powers Act?  I find it far more likely that the debate internally was not over law, but policy. Is it wise to unveil US cyber attack capabilities in Libya? Would they even work?  At least, I hope this is what the real debate was about.

2) More broadly, what is the deal with all this leaking of legal policy debates? I am curious who is doing the leaking, and whether this is part of a broader strategy of rolling out the Administration’s legal views on difficult issues via leaks?  Can we just have the full memos please?

I want to draw readers attention (if they haven’t already seen it) to this excellent discussion of the international legality of the Bin Laden killing by Alon Margalit over at EJIL Talk!.  It is particularly instructive for Americans to get a better sense of the non-US views on the Bin Laden killing. It notes that the nearly uniform State support for the Bin Laden killing might constitute state practice in favor of its international legality. In any event, read the whole thing.

Perhaps.  At least they are getting their waterskis on.  According to Politico, Amnesty International has filed a 1,000 page memorandum demanding that Canadian authorities arrest or extradite former U.S. President George W. Bush.

“Canada is required by its international obligations to arrest and prosecute former President Bush given his responsibility for crimes under international law including torture,” Susan Lee, Americas Director at Amnesty International, said in a statement.

Let’s just say that the Canadian government is not likely to act on Amnesty’s advice.

“I cannot comment on individual cases… that said, Amnesty International cherry picks cases to publicize based on ideology. This kind of stunt helps explain why so many respected human rights advocates have abandoned Amnesty International,” Canadian Minister of Citizenship and Immigration Jason Kenney told POLITICO, noting that Amnesty International had never sought a court order to bar Cuban dictator Fidel Castro or Tongolese dicator Gnassingbé Eyadema from Canada.

“Perhaps this helps to explain why Salman Rushdie has said that ‘it looks very much as if Amnesty’s leadership is suffering from a kind of moral bankruptcy,’ and why Christopher Hitchens has written about the organization’s ‘degeneration and politicization,’” Kenney added.

I don’t doubt Amnesty International has sincere views on this question. But let’s be honest. This is 90% a publicity stunt that neither advances the development of international law, or human rights, because there is zero chance that Bush will be detained anywhere (much less in Canada).  In fact, the likely rejection of AI’s view on this by more and more states will undermine AI’s goals in the long run.

In any event, I somehow doubt that in the spring of 2013, Amnesty will await (hopefully) then-former President Obama with a similar memorandum (following the legal opinions of folks like Mary Ellen O’Connell that Obama has committed violations of the laws of war) over his authorization of drone attacks outside the battlefield.

Interesting story out of Charlotte, N.C. about the family of Samir Khan, one of the U.S. citizens killed in the drone attack on Awlaki last week. (h/t Michael Rubin)

An official from the U.S. State Department has called the Charlotte family of al-Qaida propagandist Samir Khan to offer the government’s condolences on his death in a U.S. drone attack last week in Yemen, according to a family spokesman.

“They were very apologetic (for not calling the family sooner) and offered condolences,” Jibril Hough said about the Thursday call from the State Department to Khan’s father, Zafar.

The phone call came a day after the family released a statement through Hough that condemned the “assassination” of their 25-year-old son – a U.S. citizen – and said they were “appalled” that they had not heard from the U.S. government to discuss their son’s remains or answer questions about why Khan was not afforded due process.

On Friday, State Department spokesman Harry Edwards confirmed to the Observer that the call had been made, but said “privacy issues” kept him from offering details.

Hough said the Thursday conversation lasted a few minutes.

“It wasn’t just ‘I’m sorry’ and hang-up,” said Hough, who added that the phone call included no discussion of the status or condition of Khan’s remains.

Khan was not the intended target, so I suppose his death was simply the collateral damage to the attack. Still, Khan was not exactly friendly toward the U.S. government (he said he was “proud to call himself a traitor”) and was assumed to be involved in Awlaki’s strategizing.  I suppose offering condolences is not apologizing, but it is awkward nonetheless. It suggests a some ambivalence about the whole project.