Author Archive for
Sean D. Murphy

The International Law Commission’s 65th Session (2013)

by Sean D. Murphy

[Sean D. Murphy is the Patricia Roberts Harris Research Professor of Law at the George Washington University Law School. He is a member of the United Nations’ International Law Commission.]

For the next two weeks, the Sixth Committee of the U.N. General Assembly will be debating the Annual Report of the International Law Commission, covering its 65th session in Geneva held during the summer of 2013, as well as the Commission’s Guide to Practice on Reservations to Treaties (which could not be debated last year due to Hurricane Sandy). Both the 2013 Annual Report and the Guide to Practice may be found at http://www.un.org/law/ilc. Further, those interested in watching the debate live can do so on U.N. TV at http://webtv.un.org/ .  Finally, in due course, summary and some verbatim records should be available at the U.N. PaperSmart portal, which is at http://papersmart.unmeetings.org. This posting will focus on the issues discussed in the 2013 Annual Report.

First, the Commission made progress in addressing the immunity of state officials from foreign criminal jurisdiction by adopting preliminarily three draft articles in what is expected to be a series of draft articles. Draft article 1 indicates the basic scope of the project (immunity of state officials from the criminal jurisdiction of another state) and makes clear that the articles are “without prejudice to the immunity from criminal jurisdiction enjoyed under special rules of international law, in particular by persons connected with diplomatic missions, consular posts, special missions, international organizations and military forces of a State.” Draft Article 2 on definitions is being held in abeyance until further along in the project, but Draft Article 3 indicates that:  “Heads of State, Heads of Government and Ministers for Foreign Affairs enjoy immunity ratione personae from the exercise of foreign criminal jurisdiction.” By identifying these three persons (sometimes referred to as “the Troika”) as entitled to status-based immunity, the Commission is differing from dicta of the International Court of Justice in the Arrest Warrant (D.R.C. v. Belgium) case, where the Court suggested a potentially broader sweep for the immunity. There the Court asserted in paragraph 51 of the 2002 judgment that “it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal.” Draft article 4 asserts that immunity ratione personaes is enjoyed only during those three officials’ term of office, that it covers all acts performed (whether in a private or official capacity), and that the cessation of the immunity thereafter is without prejudice to the application of the rules of international law concerning immunity ratione materiae. The Commission will now await the special rapporteur’s subsequent reports, in which she will explore immunity ratione materiae, possible exceptions to immunity, and procedural matters, with associated draft articles and commentary.

Second, the Commission adopted five draft “conclusions” in what is expected to be a series of conclusions on the topic “subsequent agreements and subsequent practice in relation to the interpretation of treaties.” Draft conclusion 1 basically situates the topic within the rules on treaty interpretation set forth in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT), and stresses that the “interpretation of a treaty consists of a single combined operation, which places appropriate emphasis on the various means of interpretation indicated, respectively, in articles 31 and 32.”  Where the subsequent agreements and practice establish agreement among all the parties to the treaty, it “shall be taken into account” under VCLT Article 31(3), whereas “recourse may be had” to other subsequent practice in the application of the treaty as a “supplementary means “of interpretation under VCLT Article 32. Notably, draft conclusion 1 confirms the status of Articles 31 and 32 as customary international law.

Draft conclusion 2 indicates that… (Continue Reading)

Louis Henkin: An Extraordinary Professor and Colleague

by Sean D. Murphy

[Sean D. Murphy is the Patricia Roberts Harris Research Professor of Law, George Washington University Law School]

I recall that Louis Henkin’s first-year constitutional law course at Columbia Law School was unique in that he assigned extraordinarily short reading assignments. While at first that seemed a blessing to an overburdened student, it became readily apparent that he expected you to read every single word (perhaps twice!) for meaning, rather than speed-read your way to a hasty (and probably misguided) conclusion.

In upper-level courses on human rights, Lou was a complete master, able to advance an exceptional vision for how the law can and should protect human dignity, but always with a strong sense of the practical problems encountered outside the walls of the classroom. When he co-taught seminars with eminent experts in the field, everyone wanted Lou to advise on their papers, leaving him pleading with students at least to consider tutelage under his co-teacher.

As the editor-in-chief of the international law review, I would often seek out Lou’s advice on articles under consideration. He was typically generous with his time, though I do recall bringing to him a piece on compensation for expropriation right at the time when that issue was of great controversy in the draft Restatement, and Lou all but threw me out of his office in exasperation! All told, I entered Columbia uncertain about whether a career in international law made sense, but under Lou’s influence (and that of Oscar Schachter and Richard Gardner) the decision was easy.

Lou was, of course, a very strong proponent of international law, devoting much of his scholarship to upholding values and norms embedded within the system. Yet he also had a strong sense of the rule of law at the national level, and he had little doubts about what to do when the two conflicted. A few years after graduating from law school, I returned for a banquet, and told Lou that I was working in the State Department Office of the Legal Adviser on politico-military affairs. The principal issue of the day was Iraq’s invasion of Kuwait and whether President Bush should seek authorization from Congress to use military force against Iraq, knowing that Congress was very closely divided over the issue. I spoke with Lou about the difficulties in organizing a multinational coalition to stop what was clearly wrongful aggression if Congress also had to be involved in the decision-making. He was not impressed, stating firmly that Congress must authorize the action. I pressed him: “What if Congress declines to authorize it?” He responded that the President could not proceed. I pressed further: “But what if the President proceeds anyway, in order to stop the aggression?” He then looked me straight in the eye and said: “Then the President should be impeached.” In a world of confusion and grey areas, Lou tended to see the bright lines.

In the years that followed, I continued to benefit from him in so many ways: as a colleague on the Board of Editors of the American Journal; as a co-author; as a consumer of his continued scholarship. The era of great post-WWII scholars in international law is now ending and I fear that we are all the worse off for it.

Symposium: Discussion of Kanwar’s “Security Council as Legislator of Last Resort”

by Sean D. Murphy

[Sean Murphy is Professor of Law at George Washington University Law School and a discussant in the Opinio Juris On-Line Symposium]



For decades now, the global community has recognized that the proliferation of weapons of mass destruction (WMD) and their delivery systems constitutes a major threat to international peace and security. Since the attacks of 9/11, there is broad recognition that the threat is compounded by the possibility of terrorists acquiring and using WMD. If one contemplates the extraordinary events that were unleashed by the attacks of 9/11—wars, detentions without trial, reorganization of national governments and laws—and then considers that such attacks might someday occur using WMD, it takes little imagination to see that the entire foundation of international law and order might be shaken in a flash, accelerating change in directions that may or may not be optimal.



International lawyers must play a role in avoiding any such Armageddon, by assisting policy-makers in identifying effective strategies for preventing proliferation of WMD. In his paper “The Legislator of Last Resort,” Vik Kanwar tackles this problem by focusing on the role of the Security Council in handling the proliferation of WMD, a topic most salient given last week’s Security Council Resolution 1747 (Mar. 24, 2007) on Iran.



About half of the paper is devoted to explaining the sources of the Security Council’s power in this area, which arise not just from the express and implied powers anchored in the U.N. Charter, but also from multilateral treaty regimes relating to WMD that envisage a role for the Council in monitoring and enforcing compliance with the regime. Another third of the paper sets forth the principal course of action typically taken by the Council when confronting proliferation threats, which Kanwar breaks down into a four-level process: (1) referral/provisional measures; (2) promotion of negotiation/declaration/censure; (3) economic sanctions; and (4) the use of force. There is value in these sections of the paper in that Kanwar is exclusively focused on the nexus of WMD and the Security Council, and those unfamiliar with that nexus will benefit from his overview and insights. Thus, Kanwar usefully reminds us of important interplay among the relevant actors, such as having the IAEA as a relatively “neutral” organization for identifying a threat, which can then be referred to the “less-neutral” but more powerful Security Council to address it (pp. 17-18).



For those familiar with the Security Council and its conduct relating to WMD, however, the first part of the paper will not be new, and there are several statements that would likely elicit objection. Thus, most commentators would not characterize Chapter VI of the Charter as containing provisions on collective security (p. 3), nor view the Security Council as having “exclusive” powers (as opposed to “primary responsibility”) in determining violations of international peace and security (p. 4), nor accept that legal disputes over the meaning of the U.N. Charter should generally be referred to the International Court of Justice (p. 13), since non-adjudicatory dispute resolution is (and should be) the far more dominant approach. Likewise, the characterization of “censure” or “provisional measures” as being within the province of Chapter VI, while economic sanctions and the use of force are the province of Chapter VII (p. 20), does not comport with the terms of, or practice, under the Charter. Perhaps most striking is the assertion that Chapter VII sanctions have never been applied to a non-proliferation crisis(p. 21), since most observers would likely view Security Council Resolution 687 (imposing economic sanctions on Iraq pending the destruction, removal or rendering harmless of WMD) as just that. And though the organization and writing of the paper are fairly clear, some parts are hard to follow, such as: “Key findings failures and breaches will oblige the board triggering sending the matter referral to the UN Security Council; this provides objective architecture based on breach of obligations.” (p. 10).



The most intriguing part of the paper comes at the end, where Kanwar argues that the current “unidirectional strategy of censure, sanctions and force” is inadequate. Instead, Kanwar favors more “lateral strategies,” by which is meant Security Council action that seeks to impose constraints broadly upon all states rather than targeting one or miscreants. He lauds various proposals advanced by Mohamed El Baradei, Pierre Goldschmidt, and George Perkovich that would move away from a reactive posture on the part of the Security Council and toward more “creative and durable resolutions aimed at developing long term legal and operational capacity, and supporting the non-proliferation framework” (p. 27). While others have lamented the recent trend by the Security Council to engage in “legislation”—meaning enactment of norms that bind states broadly for broad purposes, rather than targeting a specific threat—Kanwar celebrates the possibilities for getting ahead of the non-proliferation curve and of bolstering existing WMD treaty regimes. Indeed, he sees the possibilities for synergy between the Security Council and multilateral treaty regimes as one means for countering concerns about the legitimacy of Security Council “legislation.”



Perhaps in his future work, Kanwar will wrestle more deeply with problems attendant to this approach. He recognizes that by ramping up Security Council involvement in these multilateral treaty regimes, we should not undercut them (p. 28), but does not explain how that is to be done. If the door is opened, why wouldn’t the major powers use the Security Council to advance their security objectives in situations where multilateral negotiations would be lengthy and perhaps unsuccessful? He recognizes that a “lateral” strategy might end up imposing obligations on states that have always been good citizens, while the rogue states remain recalcitrant, calling into question the utility of the lateral approach (p.29). If so, then why is a lateral strategy superior to a reactive strategy? And if the contemporary problem of proliferation of WMD has been especially aggravated by the threat posed by non-state actors, does a lateral strategy do anything special for addressing that threat? If our concerns on certain weapons (e.g., nuclear weapons) is really focused on just a few states (Iran, North Korea, Pakistan), is a lateral strategy really what is needed or will it distract us from the real threats, or from the real long-term solutions (Mideast Peace, regime change, promotion of democracy)?



These are not easy issues. Vik Kanwar has boldly plunged into an area that is extremely important and should be thought and re-thought by international lawyers in the years to come. As such, his contribution is very welcome.