In association with the International Commission of Jurists

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13 May

This post is part of the NYU Journal of International Law and Politics Vol. 46, No. 1 symposium. Other posts in this series can be found in the related posts below. The NYU Journal of International Law and Politics is proud to be partnering with Opinio Juris once again for an online symposium. This symposium is a discussion of Professor Jedidiah J. Kroncke’s article Property Rights, Labor Rights and Democratization: Lessons From China and Experimental Authoritarians, which was published in the NYU Journal of International Law and Politics, Volume 46, issue No. 1. In this article, Professor Kroncke argues that a fundamental paradox exists in efforts to promote democratization abroad that emphasize property rights to the exclusion of labor rights and that this paradox emerges from the connection between property rights and foreign legal development alongside a renewed emphasis on independent unionization in democratization theory. The Article explores the paradox in action through the willingness of modern authoritarian regimes, particularly China, to experiment with rule of law reforms, and creatively so in the realm of property rights, while being uniformly repressive of associative labor rights. Over the next two days, a number of legal scholars will offer their thoughts on the topic, including: Tuesday, May 13, 2014:
  • Cynthia Estlund – New York University School of Law
  • Eva Pils – Chinese University of Hong Kong, Faculty of Law
Wednesday, May 14, 2014: Below is an introduction to the symposium by Professor Jedidiah Kroncke: I want to open by thanking the editors at NYU JILP for their efforts in organizing this symposium and Opinio Juris for hosting. I am also very thankful for the opportunity to have scholars whose work I regard highly subject the article to critical scrutiny. As I look forward to the commentators’ engagement with the paper’s substantive claims, I thought I would give a simple preface to make explicit some of the methodological motivations that shape the piece. Much of my work to date has focused on the historical evolution of comparative law in the US, specifically through its relationship to China and the field popularly known as law and development. I believe that the distinction between these two fields is inherently illusory and counterproductive, especially when such distinction artificially segregates the study of certain foreign legal systems from others and in doing so presumes a certain common sense about from where and to where legal knowledge flows globally. Further, I see it as a categorical error that the monadic study of foreign legal systems is de facto labeled “comparative law” when it is not analytically comparative or, worse, implicitly employs an uncritical view of US or “Western” law.
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12 May

[Naz Modirzadeh is a Senior Fellow at Counterterrorism and Humanitarian Engagement Project at Harvard Law School. This post is written in her personal capacity and does not represent the views of the CHE Project]  Part 1 can be found here. Humanitarian Concerns Perhaps as significant as the legal errors in the letter, the authors seem to take no account of the security implications of their recommendation....

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12 May

[Naz Modirzadeh is a Senior Fellow at Counterterrorism and Humanitarian Engagement Project at Harvard Law School. This post is written in her personal capacity and does not represent the views of the CHE Project]  There is no shortage of profound questions arising out of the armed conflict in Syria. Yet whether the reported United Nations legal analysis concluding that the UN needs the consent of the Syrian authorities before it can undertake humanitarian relief actions on Syrian territory is not one of them. As international law questions go, this one is relatively straightforward: Absent a sufficient Security Council decision authorizing intervention—a decision which has not been forthcoming, at least not yet—UN system bodies, funds, programmes, and specialized agencies need to obtain the consent of the Syria authorities before undertaking relief actions on Syrian territory. You would be forgiven for being confused about whether there is a contested legal issue at stake if you had read the open letter sent on April 28th from 35 eminent legal experts (repeatedly referred to as “top international lawyers” in the press and in an increasingly loud Twitter campaign) to the UN Secretary General, Under Secretary General Valerie Amos, and the heads of the five UN humanitarian agencies. US Senator Tim Kaine (who sponsored the Syrian Humanitarian Resolution of 2014) quickly capitalized on the letter and the caliber of its signatories, sending a letter to Secretary General Ban Ki-Moon stating that “continued inaction will only undermine the legitimacy and reputation of the UN.” The Senator noted that while he supports a Chapter VII decision, he believes that “the UN already has the authority to act.” He states,
“Based on the opinion of prominent international lawyers, the UN currently has the mandate and legal authority to organize a large coalition of international NGOs poised to deliver humanitarian aid to all areas of Syria. Anything short implies complicity with the Syrian government’s continued violations of the basic principles of international law, and is shameful.”
Strong words—and ones that raise the question of whether the prominent international lawyers who signed the letter anticipated being implicated in the suggestion that the UN’s failure to essentially run the Syrian border against the government’s explicit denial of consent suggests “complicity with the Syrian government’s continued violations.” There are many actors with blood on their hands in the generational tragedy unfolding in Syria. In my view, the women and men of the UN’s humanitarian agencies are not on that list. In this post, I would like to provide a close initial read of the letter (whose arguments have been quickly amplified by an advocacy and media campaigns). My sense is that this is a political argument dressed up in the language of IHL.
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12 May

As my correspondent Victoria Ferauge points out in response to last week's post on inter-governmental agreements implementing the Foreign Account Tax Compliance Act, the problem with FATCA for expatriate Americans is not so much the prospect of added accountant fees in tax preparation. It's the prospect of being discriminated against as an American for all things financial. Faced with their own accounting...

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12 May

The state of the international law academy in the United States is undoubtedly strong.  International law and its progeny are no longer marginalized pieces of the law school curriculum as they were for much of the 20th century.  U.S. Law Schools regularly offer international law, with a fair number now doing so in the first year (whether as a required...

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12 May

Your weekly selection of international law and international relations headlines from around the world: Africa Boko Haram has released a new video claiming to show the missing Nigerian schoolgirls who were abducted last month, alleging they had converted to Islam and would not be released until all of its prisoners held by Nigeria were freed. Israel offered Nigeria help in locating 200 schoolgirls abducted...

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11 May

Events Sociological Inquires into International Law” (LSE, May 16-17, 2014) is a workshop with the aim of bringing contemporary international law scholarship into a closer conversation with a number of inspiring and theoretically rich literatures on law and markets deriving from traditions of thinking within sociology and anthropology.  We are convinced that, particularly within the field of international economic law, a deeper...

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10 May

A busy week on Opinio Juris with a book symposium on Just Post Bellum-Mapping the Normative Foundations. Kristen introduced the great definitional debate on the meaning of "just post bellum" (JPB). Jens Iversion contrasted JPB with transitional justice and Ruti Teitel discussed JPB as transitional justice. Jens Ohlin argued in his post that ideas about omission liability are stumbling blocks towards the acceptance of JPB. Where...

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09 May

[David J. R. Frakt, Lt. Col., USAFR, is a legal scholar and former lead counsel, Office of Military Commissions-Defense.] I wanted to weigh in on the debate between my esteemed colleagues Steve Vladeck, Peter Margulies and Kevin Jon Heller at Just Security, Lawfare and Opinio Juris, on the issue of the existence of an armed conflict at the time of Mr. Al Nashiri’s alleged offenses and the critical questions of who should decide this issue, and when.  Peter argues that this is a question of fact best decided by the panel of military officers who will serve as jurors in the military commissions.  Al Nashiri’s defense team asserts that this is a question of law and they are asking the D.C. District Court to rule that the attack on the USS Cole in Yemen in 2000 was not part of an armed conflict.  As there was no armed conflict ongoing, so goes their argument, the law of armed conflict does not apply and his actions could not be considered a violation of the law of war; further, because military commissions are courts of limited jurisdiction with power only to try and punish violations of the law of war, the federal court should enjoin any further proceedings at Guantanamo.  It should be noted that Al Nashiri has already raised this matter in a pretrial motion in the military commission, seeking to have the charges dismissed by the military judge on the grounds that the commission lacks jurisdiction over his alleged offenses because they did not take place in the context of an armed conflict.  Judge Pohl declined to dismiss the charges, characterizing the issue as primarily a question of fact for the jury (Ruling AE104F).  Judge Pohl also acknowledged that the question was a “jurisdictional question subject to purely legal determination” but claimed that he must make this determination using a “wide deference” standard.”  Applying this standard, he found that the Congressional authorization to try offenses that occurred prior to 9/11, coupled with the fact that charges had been filed by the prosecutor, referred to trial by the Convening Authority, and not withdrawn by the Secretary of Defense or the President was sufficient to establish the existence of an armed conflict at the time of the offenses for jurisdictional purposes.  This determination is essentially tantamount to a finding that he considered there to be sufficient evidence to submit the question to a jury.  However, he left open the possibility of reconsideration at a later time, presumably in the form of a motion for a directed verdict at the close of the prosecution’s case.
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09 May

[Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University, and Programme Director of the Grotius Centre for International Legal Studies.] Jus post bellum comes in many forms and variations. One of the main shortcomings in existing discourse is the lack of engagement with the interplay between law and morality. Like the laws of war, and the...

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09 May

[James Pattison is a Senior Lecturer in Politics, University of Manchester.] It’s often been claimed that there exists a responsibility to rebuild after war on behalf of the international community in cases such as Afghanistan, Iraq, Kosovo, Somalia, and so on. For instance, this was one of the key tenets of the report by the International Commission on Intervention and State Sovereignty...

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