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Kim Priemel, “The Betrayal: The Nuremberg Trials and German Divergence”

by Kevin Jon Heller

I want to call readers’ attention to Oxford University Press’s publication of my friend Kim Priemel‘s new book, The Betrayal: The Nuremberg Trials and German Divergence. Here is the publisher’s description:

At the end of World War II the Allies faced a threefold challenge: how to punish perpetrators of appalling crimes for which the categories of ‘genocide’ and ‘crimes against humanity’ had to be coined; how to explain that these had been committed by Germany, of all nations; and how to reform Germans. The Allied answer to this conundrum was the application of historical reasoning to legal procedure. In the thirteen Nuremberg trials held between 1945 and 1949, and in corresponding cases elsewhere, a concerted effort was made to punish key perpetrators while at the same time providing a complex analysis of the Nazi state and German history. Building on a long debate about Germany’s divergence from a presumed Western path of development, Allied prosecutors sketched a historical trajectory which had led Germany to betray the Western model. Historical reasoning both accounted for the moral breakdown of a ‘civilised’ nation and rendered plausible arguments that this had indeed been a collective failure rather than one of a small criminal clique. The prosecutors therefore carefully laid out how institutions such as private enterprise, academic science, the military, or bureaucracy, which looked ostensibly similar to their opposite numbers in the Allied nations, had been corrupted in Germany even before Hitler’s rise to power. While the argument, depending on individual protagonists, subject matters, and contexts, met with uneven success in court, it offered a final twist which was of obvious appeal in the Cold War to come: if Germany had lost its way, it could still be brought back into the Western fold. The first comprehensive study of the Nuremberg trials, The Betrayal thus also explores how history underpins transitional trials as we encounter them in today’s courtrooms from Arusha to The Hague.

I cannot recommend the book highly enough. It’s a remarkable piece of scholarship, weaving together legal history, political history, and intellectual history into a seamless and compelling whole. Kim is a superb historian — and one who writes about law as well as most legal scholars. The book also does something almost unprecedented: tell the story of the IMT and NMTs together, which is necessary for understanding both. The book’s only competitor in that regard is Telford Taylor’s wonderful book The Anatomy of the Nuremberg Trials: A Personal Memoir — but Taylor’s book is, as the title indicates, a memoir, not an “objective” legal history.

Anyone interested in Nuremberg, international criminal law, or transitional justice will want to pick up a copy of The Betrayal. To appropriate Larry Solum: read Priemel!

Avoiding a Rush to the Exit – Article 50 and the UK’s Withdrawal from the EU

by Larry Helfer

[Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University and a permanent visiting professor at iCourts: Center of Excellence for International Courts at the University of Copenhagen.]

As the world reacts to the shock of the Brexit referendum, international lawyers are turning their attention to the mechanics of Britain’s departure from the EU.  Article 50 of the Lisbon Treaty – the clause governing withdrawal – is now front page news.  A state’s decision to leave any international organization raises thorny questions of law and politics.  As I explain below, Article 50 answers some of these questions for withdrawals from the EU, but leaves many others unresolved.

The basics of Article 50

EU law was originally silent as to whether a state could leave the Union, generating debate over whether there was an implied right to exit.  Article 50(1) settles this issue, providing that “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”

Under Article 50, the decision to quit the EU is not self-executing, nor does it have immediate effect.  Rather, the exiting country must first “notify the European Council of its intention” to leave, which triggers a process for negotiations over withdrawal.  The hope, set out in Article 50(2), is that the remaining EU members and the departing nation will “conclude an agreement … setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.”  That agreement must be approved by a “qualified majority” of the Council (20 of the 27 remaining EU members), by the European Parliament, and by the UK itself.

Article 50’s third paragraph specifies that the Lisbon Treaty (and, by implication, all other EU laws) “shall cease to apply” to the exiting state on the date the withdrawal agreement enters into force.  If no agreement is reached, EU membership ends “two years after the notification” of withdrawal – unless the Council and the UK unanimously agree to an extension.  Once the UK has officially departed, it can rejoin only by following the Lisbon Treaty procedures applicable to states seeking admission to the EU for the first time.

The least worst outcome – bargaining for an orderly withdrawal

By setting the ground rules for Britain’s withdrawal, Article 50 is already shaping talks between London and Brussels over the terms of the UK’s exit.  The effects can be roughly divided into three time periods:  the pre-notification period, the negotiations phase (what one reporter waggishly calls the UK’s departure lounge), and the post-exit relationship between the Britain and the EU.

Brexit supporters did not wake up to an EU-free Britain on the morning after the referendum.  The UK is still a fully-fledged member of the Union – and it will remain so if the British government does not formally notify the European Council of its intent to withdraw.  Article 50 says nothing about how, when or by whom such notification is to be made.  Presumably, notice would be given by the Prime Minster.  Before the vote, David Cameron stated that he would inform the European Council “straight away” after a “leave” vote.  But on Thursday he announced that notification would be given by his successor, who will take office by October 2016.

Why the change?  Having campaigned against Brexit and lost, it is not surprising that Cameron wants someone else to pull the trigger on the UK’s withdrawal and squelch any campaign to block withdrawal – a possibility raised by Scotland’s First Minister Nicola Sturgeon.  But even fervent British sovereigntists would be advised to support some delay in notifying the Council.  So long as the UK has not fired the starting gun on the two-year exit clock, it has the upper hand in negotiations with the other 27 EU nations.  Britain keeps both the benefits and the burdens of EU membership while the terms of its departure are hammered out.  It can’t be forced to leave the Union (or can it? – see below) unless those terms are to its liking.

Once notice is given, however, the advantage shifts to the continent.  If Britain and its former EU partners do not reach a deal within 24 months – or unanimously agree to extend negotiations – the UK is out.  A divorce that is finalized while the spouses are still squabbling over custody of the children and the division of marital property is messy and painful.  The equivalent for a non-negotiated Brexit – the sudden re-imposition of barriers to free movement of capital, goods and labor – is an outcome that even diehard British nationalists should want to avoid.

How long can the UK defer notification?  Article 50 doesn’t say, but politics rather than law will almost certainly provide the answer.  Both pro-Brexit voters and EU leaders are unlikely to oppose a modest delay.  But the uncertain economic and political fallout of a protracted British withdrawal will push both sides to the bargaining table regardless of when the UK gives notice – unless the British public catches a bad case of “Regrexit.”

Contrary to what some have claimed, however, the exit negotiations need not conclusively resolve London’s status vis-à-vis Brussels.  Article 50(2) requires a withdrawal agreement that “tak[es] account of the framework for [the UK’s] future relationship with the Union.”  An deal that takes plausible steps toward defining that relationship should suffice, even if it is a modus vivendi whose principal aim is an orderly disengagement.  The details of the Britain’s post-withdrawal status can be finalized at a later date – although in the interim EU law will cease to apply to the UK.

Avoiding a rush to the Brexit

As described above, Article 50’s withdrawal rules, although incomplete, do a reasonably good job of channeling the parties toward a political settlement of the UK’s departure over the next several years.  But some in the pro-Brexit camp are calling for more precipitous action, including introducing an EU Law (Emergency Provisions) Bill in the current session of the British Parliament to revise the European Communities Act 1972.  The Bill aims to “immediately end the rogue European Court of Justice’s control over national security, allow the Government to remove EU citizens whose presence is not conducive to the public good (including terrorists and serious criminals), [and] end the growing use of the EU’s Charter of Fundamental Rights to overrule UK law ….”

There is no doubt that Parliament has the power to adopt such a Bill.  But from an international perspective, the enactment would rightly be seen as a grave violation of EU law, which continues to bind the UK until an exit deal is finalized or, failing that, two years after a notification of withdrawal.  The Bill would surely trigger a raft of lawsuits, by the EU Commission and by private litigants, challenging its legality and seeking fines and damages.  How would British judges respond to such suits?  The Bill would force UK courts to choose between their duty to apply EU law over conflicting national law and their obligation to defer to Parliament.  The result, as Cambridge professor Kenneth Armstrong has warned, would be a constitutional conflict of the first order.

The Bill might also provoke the remaining EU members to try to force Britain out.  The EU has no expulsion clause; one was considered but ultimately left out of the Lisbon Treaty.  But as my coauthors and I explain in a recent working paper, it is unsettled whether international law recognizes an implied right to expel.  And European leaders could attempt to achieve the same result indirectly, treating the Bill as a material breach that authorizes a suspension or termination of the Lisbon Treaty vis-à-vis the UK.  In either case, the legality of any expulsion effort would almost certainly be challenged in court.

In all events, the far better course for all concerned is to avoid a precipitous unilateral break and instead to negotiate Britain’s orderly departure from the EU.

Oh Britain, Where Art Thou? (The View from the EU’s Eastern Neighbors)

by Chris Borgen

As the news of the Brexit vote sinks in, commentators are considering the various longer-term effects. I want to highlight the how this may look to the EU’s neighbors to the east, especially countries such as Ukraine, Moldova, and Georgia that have recently signed Association Agreements with the EU. Ukraine and Moldova, in particular, have electorates that are divided over whether to integrate more closely with the EU or with Russia’s nascent Eurasian Economic Union.  The debate over EU integration sparked Ukraine’s Maidan demonstrations and the subsequent separatist conflict.  All of these countries faced significant pressure from Russia to reject association with the EU. These countries became effectively a borderland between two systems, those of the EU and of Russia. And Russia, in particular, has treated this as a zero-sum struggle over the futures of these countries that had once been part of the USSR. So what happens in the EU is of critical concern to its neighbors to the east.

And what are the EU’s neighbors seeing today? There are already calls by some for exit referenda in other EU countries such the Netherlands and France. The 2017 French Presidential election is increasingly looking like it will be an important barometer for the future of the Union. News feeds are abuzz with concerns about whether Brexit is the start of a domino chain that will tear the EU asunder.

However, some commentators have suggested that, although there will be a formal exit of the UK, there will actually be ongoing deep coordination and low trade barriers between Britain and the EU. A technical exit but not an existential crisis. It is too early to predict with confidence which of many scenarios will come to pass.

But the fact that the EU’s stability is more uncertain today than it was yesterday will affect regional politics. In the U.S., you might have people looking nervously at the Dow but that is nothing compared to the concerns in Kiev, which is embroiled in a secessionist conflict in part because it chose to bet on the EU being an important part of the future of Ukraine.

For their part, politicians from the EU’s eastern neighbors countries are reacting to Brexit with–how shall I say it?—a stiff upper lip. Interfax-Ukraine reports:

First Deputy Speaker of the Verkhovna Rada of Ukraine Iryna Gerashchenko and Deputy Prime Minister for Reintegration of Moldova Gheorghe Balan have discussed the result of the referendum on Britain’s exit from the European Union (Brexit) and its consequences for both countries.

“Ukraine and Moldova are disappointed with the results of the referendum and are concerned about the growing number of eurosceptics in the EU. However, Ukraine and Moldova are committed to the path of European integration and reforms,” Gerashchenko wrote on his Facebook page on Friday afternoon following the meeting.

Brave face notwithstanding, Ukraine and other countries along the EU’s eastern border that decided to sign Association Agreements with the EU will likely need to be reassured that they chose wisely. Some Members of Ukraine’s Parliament are concerned that Brexit will mean the EU will become inward-focused and delay the implementation of aspects of the Association Agreement that came so dear.

The EU will need to think clearly and act decisively not only about how it will manage the divorce with the UK but also about its strategy regarding its eastern neighbors—including both the states of the former USSR and Turkey as well.

For a deep-dive into the EU’s recent policies towards its neighbors (written before Brexit), see this paper from the EU’s Institute for Security Studies.

Abkhazia Defeats Panjab in Overtime for ConIFA World Football Cup

by Chris Borgen

I know Opinio Juris is probably not where you come for sports updates but this is the result of the ConIFA World Football Cup, a tournament among unrecognized regimes, minorities, and stateless peoples.

For more on ConIFA, statehood, and nationalism, see my post from last week.  In short, the ConIFA competition may be an attempt not only to boost morale within unrecognized regimes, ethnic enclaves, and stateless people, but also remind the rest of the world of the claims that these groups have, be they claims of statehood or simply a desire to be recognized to exist as a people. Consider the following from an article posted by Al Jazeera:

…CONIFA’s president Per-Anders Blind explained how this World Cup has nothing to do with politics and borders.

“Our aim is to show that football can be a tool to bring our members to the global stage. We all have the same right to exist,” he said.

Chewing on a little pouch of “snus’, a Swedish chewing tobacco, Blind described how the idea for the CONIFA World Cup was inspired by his own life experience.

“My father is a reindeer herder in the Swedish and Norwegian mountains. I was born and raised as part of a group of forgotten people, the Sami, and endured discrimination because of that.”

Blind’s comments are reminiscent of the Olympic ideal to “use sport to foster peace and reconciliation, underlining the power of the Games to promote tolerance and solidarity among the participants, fans and people all over the world.”  Perhaps the founders of ConIFA were frustrated that membership international sports organizations such as the International Olympic Committee and (particularly relevant to ConIFA) FIFA, was too intertwined with statehood to extend these ideals to unrecognized regimes and stateless peoples. As the ConIFA website states, echoming the Olympic ideal,

CONIFA aims to build bridges between people, nations, minorities and isolated regions all over the world through friendship, culture and the joy of playing football. CONIFA works for the development of affiliated members and is committed to fair play and the eradication of racism.

But it can be difficult to set aside issues of politics, borders, and laws when the membership of ConIFA is practically defined by its tension with existing borders, politics,and/ or laws. While the structures of the International Olympic Committee and FIFA may favor recognized states, the tournament organization of ConIFA itself steps from the sports field into the arena of high politics.   Abkhazia, the Georgian breakaway region, not only won the tournament but was also the host. While the tournament may be a morale-booster for the population of Abkhazia, it was played in territory that Georgia views was taken from it by a Russian military invasion.   The Al Jazeera article notes that:

Georgian officials have complained that the CONIFA tournament is illegal since it it lacks Georgia’s authorisation within what it considers to be its territorial boundary. According to Georgian law, participants entering Abkhazia through Russia would be entering Georgian territory illegally.

The ConIFA World Football Cup symbolizes different things for different people. For some, it is an affirmation that they, too, matter. For others, the tournament is affront to the rule of law. And for some, it might just be a chance to watch the home team play a game of soccer. In any case, though, it matters.

Videos and summaries of the games are available at the ConIFA website. (And, by the way, Northern Cyprus beat ConIFA heavyweights Padania for the third place trophy.)

Why the World Cup of the Unrecognized Matters [Updated]

by Chris Borgen

States and nations are not the same thing.  A nation is a “people,” itself a difficult concept to define under international law. A state is a recognized political entity that meets certain criteria. International lawyers will tell you that the characteristics of statehood include a defined territory, a government, a permanent population, and the ability to enter into foreign relations.

State formation in the 19th century and also right after World War I often sought to build states for nations (hence the term “nation-state”) but the terms are not coterminous.

So what are the hallmarks of nationhood? Many know in their hearts that there may be no more important mark of nationhood than a national soccer team. C’mon, you know it’s true.

And sometimes, peoples would like to remind you that they are nations—if not states!—and want to be recognized as such (nations or states, it gets a little blurry).

So, pay attention, soccer fans and international lawyers, because this weekend will be the final match in the 2016 Confederation of Independent Football Associations (ConIFA) World Football Cup, sometimes referred to as the World Cup of the unrecognized.  According to this NPR report, host Abkhazia is the current favorite after Western Armenia and Kurdistan were unexpectedly eliminated.

The first ConIFA World Football Cup was played in 2014 and seems to be the successor to the VIVA World Cup, about which I had previously written.

ConIFA should not be confused with FIFA, the international federation of football associations. As I had explained in a post from a couple of years ago, membership in FIFA is not based on being a state, but rather on being a football association.  Thus, if you look at a list of FIFA member associations, as England and Wales are separate associations, they have separate World Cup teams. Nonetheless, joining FIFA can be subject at times to some of the same political tensions as the recognition of a state.

According to FIFA’s statutes (.pdf), to be eligible to become a member of FIFA, an applicant must first be a member of one of the six main football confederations: the Confederación Sudamericana de Fútbol (CONMEBOL), the Asian Football Confederation (AFC), the Union des Associations Européennes de Football (UEFA), the Confédération Africaine de Football (CAF), the Confederation of North, Central American and Caribbean Association Football (CONCACAF), or the Oceania Football Confederation (OFC). Without going into all the statutes of these individual confederations, it is likely that some vote among the existing member associations in a given confederation will be a first hurdle that an aspirant FIFA-member must pass. (See, for example, UEFA’s rules (.pdf).)

Thus, although membership in FIFA is technically not based on statehood, the process largely relies on statehood and state-based football organizations (but for noted exceptions, such as England and Wales). Consequently, unrecognized entities such as South Ossetia and Nagorno Karabakh have little chance of seeing their football associations become part of a confederation, let alone FIFA.

Now consider ConIFA’s  membership rules, which are linked not to statehood, but to “nationhood” or being a “people”:

CONIFA is made for national teams that represent a nation which is not a member of FIFA (yet). For that reason only non-members of FIFA can join CONIFA. The second requirement is that the applicant is represent of a nation. The following table explains in detail what we consider a “nation”:

1.The Football Association is a member of one of the six continental confederations of FIFA.

2. The entity represented by the Football Association is a member of the IOC.

3. The entity represented by the Football Association is a member of one of the member federations of ARISF.

4. The entity represented by the Football Association is in possession of an ISO 3166-1 country code.

5. The entity represented by the Football Association is a de-facto independent territory.

6. The entity represented by the Football Association is included on the United Nations list of non-self-governing territories.

7. The entity represented by the Football Association is included in directory of countries and territories of the TCC.

8. The entity represented by the Football Association is a member of UNPO [Unrepresented Nations and Peoples Organization] and/or FUEN [Federal Union of European Nationalities].

9. The entity represented by the Football Association is a minority included in the World Directory of Minorities and Indigenous Peoples.

10. The entity represented by the Football Association is a linguistic minority, the language of which is included on the ISO 639.2 list.

Every Football Association that fulfills at least one of the above criteria is very welcome to apply for CONIFA membership!

[Emphases and bracketed text added.]

As for the aspiration of at least some of these entities to become generally recognized as states, consider the parenthetical “(yet)” from the first sentence.

And why might a a sports tournament be important to people with much bigger issues to worry about? Because you can cheer your team, wave your flag, feel a sense of unity, sing when your winning and… yes, you can actually win. And if you don’t there’s always next year.

When you live in an unrecognized regime, you take your wins where you can get them.

Whether any of these associations become part of FIFA, let alone whether or not those entities that also seek to be recognized as states will ever achieve that goal, is a long and doubtful journey.  But in many cases that is due to reasons of military intervention, history, and/or international law. For today, there is a football to be played.

EU to Help al-Bashir Imprison Refugees

by Kevin Jon Heller

Just when I thought I was beyond being genuinely horrified, Roving Bandit called my attention to a story in Der Spiegel that almost defies words:

The ambassadors of the 28 European Union member states had agreed to secrecy. “Under no circumstances” should the public learn what was said at the talks that took place on March 23rd, the European Commission warned during the meeting of the Permanent Representatives Committee. A staff member of EU High Representative for Foreign Affairs Federica Mogherini even warned that Europe’s reputation could be at stake.

Under the heading “TOP 37: Country fiches,” the leading diplomats that day discussed a plan that the EU member states had agreed to: They would work together with dictatorships around the Horn of Africa in order to stop the refugee flows to Europe — under Germany’s leadership.

When it comes to taking action to counter the root causes of flight in the region, German Chancellor Angela Merkel has said, “I strongly believe that we must improve peoples’ living conditions.” The EU’s new action plan for the Horn of Africa provides the first concrete outlines: For three years, €40 million ($45 million) is to be paid out to eight African countries from the Emergency Trust Fund, including Sudan.


The International Criminal Court in The Hague has issued an arrest warrant against Sudanese President Omar al-Bashir on charges relating to his alleged role in genocide and crimes against humanity in the Darfur conflict. Amnesty International also claims that the Sudanese secret service has tortured members of the opposition. And the United States accuses the country of providing financial support to terrorists.

Nevertheless, documents relating to the project indicate that Europe want to send cameras, scanners and servers for registering refugees to the Sudanese regime in addition to training their border police and assisting with the construction of two camps with detention rooms for migrants. The German Ministry for Economic Cooperation and Development has confirmed that action plan is binding, although no concrete decisions have yet been made regarding its implementation.

I think this is what policy wonks call a “bad idea.” Although, to be fair, al-Bashir’s government does know a thing or two about building detention camps:

In the IDP camps, where most of the target groups’ members fled, AL BASHIR has organized the destitution, insecurity and harassment of the survivors. The Ministry for Humanitarian Affairs provides no meaningful Government aid to those displaced, and consistently obstructs or blocks humanitarian assistance from the international community. The Ministry for Humanitarian Affairs blocks the publication of nutrition surveys, delays the delivery of aid, expels relief staff denouncing such acts, denies visas and travel permits, and imposes unnecessary bureaucratic requirements on aid workers. This has the effect of reducing nutrition and access to medical services for protracted periods of time.

Militia/Janjaweed, which AL BASHIR has recruited, armed and purposefully refused to disarm, are stationed in the vicinity of the camps and, with other GoS agents, they subject IDPs to abuses, including killings, rapes and other sexual violence. While the authorities argue that there are armed rebels in the camps, the evidence shows that those attacked are unarmed civilians.

The overall effect of physical attack, forced displacement, destruction of means of livelihood, and denial of humanitarian assistance was that mortality rates among civilians, including principally members of the target groups, remained at critical levels. Between April and June 2004, as deaths directly caused by violence decreased, mortality rates among displaced populations in Darfur remained elevated because of deficient humanitarian assistance. Overall, at least 100,000 civilians – mostly members of the targeted groups – have already endured “slow death” since March 2003.

These paragraphs are from the OTP’s second request for an arrest warrant for al-Bashir, which accused him — inter alia — of “genocide by deliberate infliction on members of the target groups conditions of life calculated to bring about the physical destruction of the group in whole or in part.” The Pre-Trial Chamber issued the warrant.

Little wonder the EU ambassadors wanted to make sure the public never found out about its horrific plan to help al-Bashir build detention camps for refugees. (Query: does the EU have a reputation regarding treatment of refugees left to protect?) Alas, Der Spiegel refused to play along.

But don’t worry, EU ambassadors. There is a silver lining: refugees are not a protected group under the Genocide Convention, so you can’t be accused of complicity in genocide when al-Bashir decides the best way to “solve the refugee problem” is to slowly kill them in the camps you help build.

The $50 BILLION Treaty Interpretation Question: Dutch Court Sets Aside Yukos Award Against Russia

by Julian Ku

Russia scored a huge victory today when the Hague District Court in the Netherlands court set aside a $50 billion arbitral award in favor of former shareholders of Yukos.  The $50 billion Yukos award (that’s BILLION, with a “B”),  is the largest arbitration award ever issued, was issued under the authority of the Energy Charter Treaty.  The arbitral tribunal (hosted at the Permanent Court of Arbitration) had found that the Russian government was liable for expropriating the former shareholders of Yukos through use of tax laws, harassment, criminal punishments, and other government measure without providing adequate compensation.

The Hague District Court set aside the award on jurisdictional grounds.  According to this English-language summary, the Dutch court held that Russia was not bound to arbitration under the Energy Charter Treaty because it never ratified the ECT.  The arbitral tribunal held in its interim award that Russia was bound under Article 45, which calls for provisional application of the treaty pending ratification.  But the Hague District Court disagreed.

Here is Article 45(1) and (2)(a):

(1) Each signatory agrees to apply this Treaty provisionally pending its entry into force for such signatory in accordance with Article 44, to the extent that such provisional application is not inconsistent with its constitution, laws or regulations.

(2) (a) Notwithstanding paragraph (1) any signatory may, when signing, deliver to the Depository a declaration that it is not able to accept provisional application. The obligation contained in paragraph (1) shall not apply to a signatory making such a declaration. Any such signatory may at any time withdraw that declaration by written notification to the Depository.

Russia did not make such an Article 45(2) declaration, but the Dutch Court held that Article 45(1) still acted as a jurisdictional bar on the arbitral tribunal’s jurisdiction because it requires the arbitral tribunal to go back and assess whether the dispute resolution provision (Article 26) of the Energy Charter treaty is “inconsistent” with Russia’s “constitution, laws or regulations.”  the Dutch court concluded that Russia’s constitution does not permit it to be bound to an arbitration assessing the legality of its tax laws without the consent of its legislature.

I don’t have a strong view on who is right here. I will note that Russia is represented by the well-known New York law firm Cleary Gottlieb (where I once toiled as a young summer associate) and that Russia mustered an impressively long list of international law experts on its behalf such as Martti Koskenniemi, Alain Pellet, and Gerhard Hafner (to list just a few).  The claimants had their own impressive list including James Crawford and my former Yale professor Michael Reisman.  This is a truly difficult treaty interpretation question, which just happens to have $50 billion riding on it.  So we can be sure there will be an appeal of the Hague District Court’s ruling.

It is worth noting that also that Russia has a lot riding on this case, but it also decided to litigate this matter fully even though it believes the tribunal has no jurisdiction.  This turns out to be a smart move, since they seem to have won (for now) and because not litigating would have still subjected them to lots of enforcement actions against them around the world. So litigation seems to have worked out for Russia this time. I wonder if that will encourage Russia  to try its hand at litigation in future cases as well?


Letter Criticising the UK’s Snooper’s Charter

by Kevin Jon Heller

Along with more than 200 other lawyers and academics, I have signed an open letter to the UK government criticising the UK’s investigatory powers bill — aka the “Snooper’s Charter.” Here is the text of the letter:

The UK’s investigatory powers bill receives its second reading on Tuesday. At present the draft law fails to meet international standards for surveillance powers. It requires significant revisions to do so.

First, a law that gives public authorities generalised access to electronic communications contents compromises the essence of the fundamental right to privacy and may be illegal. The investigatory powers bill does this with its “bulk interception warrants” and “bulk equipment interference warrants”.

Second, international standards require that interception authorisations identify a specific target – a person or premises – for surveillance. The investigatory powers bill also fails this standard because it allows “targeted interception warrants” to apply to groups or persons, organisations, or premises.

Third, those who authorise interceptions should be able to verify a “reasonable suspicion” on the basis of a factual case. The investigatory powers bill does not mention “reasonable suspicion” – or even suspects – and there is no need to demonstrate criminal involvement or a threat to national security.

These are international standards found in judgments of the European court of justice and the European court of human rights, and in the recent opinion of the UN special rapporteur for the right to privacy. At present the bill fails to meet these standards – the law is unfit for purpose.

If the law is not fit for purpose, unnecessary and expensive litigation will follow, and further reform will be required. We urge members of the Commons and the Lords to ensure that the future investigatory powers legislation meets these international standards. Such a law could lead the world.

Here is a Guardian article on the letter. It’s pathetic that Labour intends to abstain on the bill, instead of opposing it. To their credit, both the Lib Dems and the SNP will oppose the bill.

Can/Will President Sanders Withdraw the U.S. from the WTO?

by Julian Ku

It’s been a rough U.S. presidential campaign season for free traders.  Very few of the candidates are willing to voice broad support for free trade and free trade agreements.  Populist candidates like Senator Bernie Sanders and Donald Trump have made some pretty ugly noises about either violating or withdrawing from existing trade agreements.

Although Donald Trump’s proposal for 45% tariffs on China would violate WTO obligations (as Roger detailed here), it is Senator Bernie Sanders who might be more radical on free trade.  Although he doesn’t mention it much on the campaign trail, Senators Sanders (as a congressman) has introduced bills in Congress that would have withdrawn the U.S. from the World Trade Organization.

Today, Congressman Bernie Sanders will urge his colleagues in the U.S. House to support a plan to have the United States withdraw from the World Trade Organization.

Sanders acknowledges that the proposal probably won’t pass, but he hopes it will stimulate debate over the nation’s growing trade deficit.

Here a youtube video of his speech defending his proposed bill to withdraw the U.S. from the WTO.

What is interesting is that if elected President, Sanders could probably unilaterally withdraw the U.S. from the WTO with six months notice pursuant to Article XV of the Agreement Establishing the WTO (An earlier version of this post erroneously referred to Article XXXI of the WTO Agreement, which is really the 1947 GATT Agreement. Thanks to the commenter below for the correction).  I think that a President has broad delegated authority to terminate such agreements, although as I noted back in 2008, it is a bit uncertain whether Congress must also approve.    Still, given that the president arguably has such powers, shouldn’t someone ask Senator Sanders whether he still wants to withdraw the U.S. from the WTO, and if so, would he promise to do so if elected?  I have a feeling he has backed off this position (hopefully!), but it is certainly worth asking!

Ukraine Prepares Even More International Lawsuits That Russia Will Ignore

by Julian Ku

Things are not going well for Ukraine.  It has lost Crimea, effective control over eastern parts of its territory, its divided government is hampered by corruption which is sparking more internal violence, and its economy is doing poorly.  Russia is the cause of many (though not all) of its problems, so it is not surprising that Ukraine is looking to try to retaliate somehow and in some way.

This past week, Ukraine’s government announced that it is preparing to bring claims against Russia in the International Court of Justice.

Along with three interstate claims filed to the European Court of Human Rights (ECHR), we’re preparing for filing a claim to the International Court of Justice on the Convention for the Suppression of the Financing of Terrorism and racial discrimination, as we have real facts of discrimination, in particular, Crimean Tatars on the territory of Crimea,” [Deputy Justice Minister for European integration Serhiy] Petukhov said in the parliament on Wednesday.

To my surprise, Russia has actually agreed to compulsory dispute settlement under the ICJ for both treaties.  Under Article 24 of the Terrorism Financing Convention,

1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation within a reasonable time shall, at the request of one of them, be submitted to arbitration. If, within six months from the date of the request for arbitration, the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice, by application, in conformity with the Statute of the Court.

Similarly, under Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination:

Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.

On this latter provision, it is worth noting that the United States has reserved its liability by agreeing to jurisdicition only upon its specific agreement.  Russia did not make such an argument in Georgia’s ICJ case against Russia, so it is unlikely to do so again.

So in addition to a case under the UN Convention for the Law of the Sea, Ukraine could file at least two more international court actions against Russia over Crimea and other actions.  But will it? Russia has been largely unaffected by the Arctic Sunrise case, and it doesn’t seem in a mood to reconcile.  But, like the Philippines against China, Ukraine may simply think it doesn’t have any better options.

A Treaty or Not a Treaty? My Senate Testimony About the Paris Climate Change Agreement

by Julian Ku

I had the honor and pleasure of testifying today before the U.S. Senate’s Environment and Public Works Committee.  The topic of the hearing was “Examining International Climate Negotiations” and the upcoming conference in Paris. My own contribution argued that an agreement with legally binding emissions reduction obligations should be submitted to the Senate as a treaty rather than as a sole executive agreement.  I further argued that the Senate should require to the State Department to clarify which parts of a climate change agreement are legally binding, and which ones are merely non-binding political commitments.

You can watch the oral testimony and the questions below on C-SPAN (my testimony starts around the 11’40” mark. Almost all of the testimony has to do with the substantive merits of such an agreement (about which I express no opinion), as opposed to the legal aspects. So I will go ahead and declare victory for my argument by default.

A Short Response to Ilya Somin: Does Self-Defense Mean the U.S. Can Invade and Occupy Syria?

by Julian Ku

Ilya Somin has updated his post at the Volokh Conspiracy to include my critique, and his response to my critique. I just want to add two more points to our little debate on the domestic legal effect of the North Atlantic Treaty’s Article V collective self-defense clause before we put it to rest. (For those of you looking for a broader discussion on the Paris attacks than our legal parsing, I recommending joining this Federalist Society teleforum today here at 2 p.m. EST).

1) Ilya argues that “[w]hile the use of force is discretionary under Article 5, treating an attack on an ally within the designated area as if it were an attack on the US itself is not… And in the event of an enemy attack on the US itself, the president has the legal authority to use force of his own volition, without additional congressional authorization”.

This is an interesting point, and I agree with Ilya that the President can use military force to defend the U.S. without going back to Congress.  So Ilya is reading Article V as a pre-authorization to the President to defend treaty allies with military force as if it were an attack on the United States.But this reading calls into question how much military force the President can use under this “pure” self defense rationale.  Surely, President Bush was authorized to defend U.S. territory on 9/11 and its immediate aftermath.   But did the 9/11 attacks also authorize the President to start bombing, and then to invade Afghanistan, without going back to Congress?  In other words, does the self-defense rationale allow all offensive actions against the attacker up to and including invasion and occupation of another country?

Similarly, do the Paris attacks(assuming Article V were invoked) allow President Obama to launch military strikes (and maybe invade and occupy) Syria?  Surely, the President could have ordered U.S. forces to defend France without Congress. But I’m just not sure the Article V self-defense rationale gets Ilya all the way to a full-scale war on ISIS.

2) On a historical note, Ilya takes issue with my characterization of the legal rationale for Article V as allowing the U.S. and its allies to comply with the UN Charter’s rules on the use of military force.  He argues that “[t]he true main purpose of Article 5 is to commit the signatories to a system of collective defense against attack…”

I don’t disagree that this was Article V’s “main” purpose, but my original post was focused on the legal purpose of Article V.  On that front, I think it is safe to say Article V was about ensuring NATO was in compliance with the then-new UN Charter, and much less about re-allocating war powers under the U.S. Constitution.

I should hasten to add that I am in favor of a robust military response to the Paris attacks (actually, I was in favor of a robust response before the Paris attacks too).  And unlike Ilya, I think the President has broad powers under the Constitution to use military force without explicit congressional authorization.  I just don’t think collective self-defense treaties like Article V are needed to authorize unilateral presidential action against ISIS.