The following is a guest post by Anna Dolidze, a JSD candidate at Cornell Law School. In 2007-08, Dolidze was
 an Albert Podell Global Scholar at Risk at New York University Law
 School and a Visiting Fellow at Columbia University’s Harriman Institute.  She has worked for a number of international organizations, including for Save the Children, Russian Justice Initiative, and Human Rights Watch.  Our thanks to her for the contribution!

Last week the International Court of Justice handed down the judgment on Preliminary Objections in the case of Georgia v. Russian Federation. With ten votes to six, the Court upheld the preliminary objection by Russia and declined to proceed to consider the case on merits. The judgment presents interesting material for examination from many angles. As the dissenting opinions have already been made publicly available, their close examination will give food for thought to those that study politics at the international court. The judgment is also noteworthy for its detailed treatment of Article 22 of the Convention on Elimination of All Forms of Racial Discrimination (CERD) and its history. It is also interesting to see how the Court examined the political rhetoric from both countries through the lens of international law. Those that study how military confrontation is translated into “lawfare” will also find interesting material for contemplation. One particular aspect of the judgment, with which I shall deal in this post, is how it played out in domestic politics in both countries. Russian and Georgian political actors interpreted the judgment variably. Yet, they were similar in one particular way. Government agencies of both countries announced it as victory for their country. Furthermore, a look at how domestic political players in Georgia handled the judgment confirms, once again, that judgments of international tribunals are part and parcel of Dezalay and Garth’s concept of “international strategies.” Domestic actors “use foreign capital, such as resources, degrees, contacts, legitimacy, and expertise … to build their power at home.” Georgian government and political actors interpreted the judgment with the view to maximize their own domestic political capital.

The case was launched by the application filed by Georgia on August 12, 2008. On the same day President of France Nicolas Sarkozy proposed a cease-fire in the Georgian-Ossetian zone of conflict. Georgia requested the Court to declare that Russia violated its obligations under CERD by engaging in acts and practices, contrary to Articles 2,3,4,5 and 6 of CERD. Its application mainly concerned Russia’s responsibility for actions on the territory of two secessionist republics of Georgia, Abkhazia and South Ossetia. Georgia had filed a complaint on the basis of article 22 of CERD. Article 22 provides, “[a]ny 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”. CERD entered into force between in the parties on July 2, 1999.

Both parties have benefited from the legal representation of the prominent figures in international law, including James Crawford and Phillip Sands representing Georgia and Allain Pellet and Andreas Zimmerman representing Russia. Russia raised preliminary objections to the jurisdiction of the Court. Firstly, Russia contended that there was no dispute between the parties within the meaning of article 22. Secondly, that the procedural requirements for the recourse to article 22 have not been met…

I received this notice from my friend Gary Born and thought it worth sharing. Sounds like a wonderful opportunity for any academic interested in international arbitration. My Pepperdine colleague Tom Stipanowich was the resident scholar last semester, and he could not say enough about the experience. Here’s the formal announcement:

The International Arbitration Group at Wilmer Cutler Pickering Hale and Dorr LLP in London is pleased to announce that it is accepting indications of interest for its Scholar-in-Residence Program for the academic year 2011-2012 and the summer of 2011. Indications of interest are invited from all full-time legal academics, particularly in the fields of international arbitration and litigation, private international law, public international law, and comparative law, regardless of seniority or country of qualification.

The Scholar-in-Residence Program brings talented professors, lecturers and and other academics from all jurisdictions to our London office to collaborate with our international arbitration team on both professional matters and academic projects and to contribute generally to the intellectual life of the office. (A description of our International Arbitration Group is here. Visiting scholars are provided with an office, use of library and other research facilities, and secretarial and other support services, as well as an honorarium in appropriate cases. Specific terms and conditions, including with regard to the length of residence and weekly time commitments, are determined on a case-by-case basis in light of program participants’ experience and needs, and other academic and professional engagements. Past participants have included distinguished academics in the fields of international dispute resolution, international trade and public international law.Participants have been in residence for periods ranging from 1 month to 9 months, with time commitments ranging from a few hours per week to full-time.

Interested academics are invited to send their resume/CV to Phillipa [dot] Keast [at] wilmerhale [dot] com , together with a brief indication of preferred starting and ending dates of residence and contemplated time commitments. General inquiries regarding the Scholar-in-Residence Program, including for future years, are also invited.

It is with great concern that I hear about this because it puts Julian and his defence in a bad position. I do not like the idea that Julian may be forced into a trial in the media. And I feel especially concerned that he will be presented with the evidence in his own language for the first time when reading the newspaper. I do not know who has given these documents to the media, but the purpose can only be one thing – trying to make Julian look bad.

Lawyers for Julian Assange–December 19, 2010

We simply have a very easily understood promise. Unlike most media organizations, we don’t arbitrarily choose what to publish or not to publish based upon the political or personal whims.

Julian Assange–December 17, 2010

We make a guarantee to people that provide us with material that provided their material meets a simple criteria, that is, it has been restricted from the public record, or has been censored and is under an active suppression and it is of diplomatic, political or authorical significance, provided they get it to us we will eventually publish it.

Julian Assange–April 7, 2010

We will fight will all the tools at our disposal, technical, political, legal to make sure the material remains up and published. Any material of political importance or ethical or diplomatic or historical relevance, that is our criteria, that is suppressed we will accept. That is our line in the sand that we have consistently enforced. And previously no one have been able to enforce that. So, this is, yes part of this revolutionary ideal.

Julian Assange–April 26, 2010

The Ninth Circuit this week ruled that there was no federal policy with respect to the Armenian Genocide, thereby allowing insurance claims brought by Armenian nationals under a California statute to go forward. In Movsesian v. Victoria Versicherung AG, the Ninth Circuit distinguished Garamendi, concluding that there was no federal policy against recognizing the Armenian Genocide. Indeed, “[c]onsidering the number of expressions of federal executive and legislative support for recognition of the Armenian Genocide, and federal inaction in the face of explicit state support for such recognition, we cannot conclude that a clear, express federal policy forbids the state of California from using the term ‘Armenian Genocide’” in the statute.

The interesting wrinkle in the case is that in August 2009 the same panel came out precisely the opposite. As Michael Ramsey discusses at length here, that panel bizarrely ruled that the failure to recognize the genocide in formal legislation was a federal pronouncement sufficient to preempt state law. On petition for rehearing, that opinion was withdrawn, and now Judge Nelson has reversed herself, siding with Judge Pregerson.

I consulted on the case on behalf of Movsesian, and I have no doubt that the Ninth Circuit got this one right. In light of Medellin‘s limitation on Garamendi, it was truly astonishing to hold that inchoate federal policies were enough to preempt state laws.

In related news, as reported here, “three descendants of Armenians who lost their property in the collapse of the Ottoman Empire filed a lawsuit Wednesday against the Turkish government and two Turkish banks for restitution of more than $63 million for acreage that includes the strategic Incirlik Air Base used by the U.S. military.” Lee Boyd and Michael Bazyler are working with Vartkes Yeghiayan on behalf of the plaintiffs. The plaintiffs’ press release is here.

The timing of the complaint could not have been better. It comes just days after the Ninth Circuit’s decision in Movsesian and two weeks before the California Armenian genocide law extending the statute of limitations was set to expire.

In this week’s Weekly Standard, Christopher Caldwell of the WS and FT has an essay specifically on the political economy of the euro-zone crisis, Euro Trashed: Europe’s Rendezvous with Monetary Destiny.  He notes that the European Union is built on a theory of successive crises, and that the euro was foreseen, perhaps intended, to provoke a crisis that would lead toward greater union; he quotes some of its founding fathers to that end.  (I think he might have added the dialectical ideology that underlay that sentiment, but does not.):

As we contemplate the macroeconomic storm that is now passing through Europe, we must bear in mind that this is a storm that the EU’s promoters knew would come. The euro’s designers understood Rahm Emanuel’s philosophy about not letting a crisis go to waste. “Europe will be forged in crises,” the European Community’s founding father Jean Monnet wrote in his memoirs, “and it will be the sum of the solutions brought to these crises.” When the French statesman Jacques Delors laid out his plan for the euro in the late 1980s, he drew a clear trajectory: A common market had made possible a common currency. A common currency would make possible a common government.

But how would that happen? After all, if a currency worked well within the existing political arrangements, there would be no reason for those arrangements ever to change. New institutions could result only from the currency’s blowing up. Economic crisis would be the accidentally-on-purpose pretext for replacing a system based on parliamentary accountability with a system based on the whims of a handful of experts in Brussels. Europe’s countries now face the choice of giving up either their newfangled money or their ancient national sovereignties. It is unclear which they will choose.

Toward the end, the essay points out that although Greece is every bit as corrupt and profligate as the newspapers suggest, that was not the case with Spain, nor with Ireland, certainly not in the sense of Greece.  That is, Spain had quite good fiscal management and undertook measures that were thought quite strict at the time to protect its banks from the subprime crisis in the US, while many other European banks were as much a part of it as the US ones.  True, Spain’s economy has many structural problems – a sclerotic labor market for those in the protected sectors and, today, unemployment for everyone else.

But the adjustment mechanisms by which democratic market societies overcome interest group recalcitrance – monetize the debt and let devaluation lower wages (behind the veil of money, as we Marxists like to say) – were not available to it, having joined the euro.  Spain was overcome by a one-size fits all monetary policy, which to overcome in a democratic society through internal fiscal and regulatory means alone would require superhuman willpower (and perhaps, in the regulatory arrangement of the EU and eurozone at this moment, could not be achieved in any case, on account of too many arbitrage avenues around internal controls, of the kind designed for the purpose of one-size fits all): (more…)

A couple of years ago, Josh Newcomer and I argued that political commitments have developed to a point where they should receive constitutional scrutiny.  In other words, we do not accept that because political commitments lack international legal force they should have absolute immunity from domestic legal processes.  Indeed, to the extent that political commitments may perform the same (or at least similar) functions as treaties, it seems strange that negotiators can avoid any domestic review of a deal by a state’s legislature by simply indicating an intention that, whatever the text says, it is not intended to be legally binding.  On the contrary, we argued that the increasing utility of political commitments (not to mention their ability to contain highly normative, precise commitments that may establish significant institutional structures or precommitments to later legal obligations) suggests  that these instruments are worthy of domestic attention.   

Our focus was solely on the United States.  But Ireland may be the first to offer a serious inquiry into the issue as debates now rage over its political commitments with the IMF to bail it out of the latest EU debt crisis.  Darren O’Donovan had a great piece on the topic in last Thursday’s Irish Times:

The IMF memorandum is a declaration, not a treaty. It probably does not invoke constitutional need for Dáil approval

QUESTIONS HAVE been raised regarding the applicability of Article 29.5.2 of the Constitution to the emerging agreement between Ireland and the International Monetary Fund (IMF). The article provides that “the State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann”.

To the non-international lawyer, this looks to require a Dáil vote on the memorandum of understanding which was published in draft form yesterday evening.

There is, however, strong evidence to suggest that IMF standby arrangements consisting of letters of intent and memoranda of understanding do not constitute binding international agreements under the provision. The Supreme Court in Boland v An Taoiseach held in reference to the Sunningdale Agreement that a political declaration or assurance falls outside it, while binding international treaties require a Dáil vote.

We measure what is an international treaty by reference to, among other things, the intention of the parties and the actual terms of the agreement.

The IMF has traditionally been quite clear that it does not regard memoranda of understanding as binding international agreements, and has required its staff to avoid binding or contractual language in their drafting. Furthermore, memoranda are not lodged with the United Nations as formal treaties are.

The IMF is, in essence, relying on its market influence and reality of our economic dependency to enforce its conditions. If we breach conditions it will not be legal power that is mobilised, but the fund may suspend payments, with severe consequences for our bond yields.

This position has important consequences.

If Ireland fails to meet a memorandum target, it is not in violation of international law.

More adversely, however, the non-legal status of memoranda means that their contents cannot be interpreted in the light of international law rules and, should we end up in dispute with the IMF over the meaning of the terms, our recourse to international courts and arbitration is limited. Although the fund claims the agreements are general and macroeconomic, what can emerge is an unequal debate around what constitutes sufficient compliance with the terms of the standby arrangement to justify disbursing the next tranche of the funds.

I’m no expert on Irish treaty law, so I can’t really speak to the issue of whether IMF MOUs qualify as international agreements for purposes of domestic approval. I’m inclined, however, to agree with O’Donovan that they’ll likely fall outside of existing constitutional constraints. But that makes my point all the more starkly — that states and international institutions have now adopted significant and serious forms of commitment that were not contemplated by, nor addressed in, domestic constitutional orders focused on treaty commitments. To the extent that the IMF and states themselves seek to use their political deals as an end run around democratic review by legislatures, it raises the question of whether those domestic systems should adjust to ensure at least some review occurs. Given the seriousness of the EU debt crisis, I wonder if it may not be an appropriate catalyst for such change?

Let’s just put this one in the “I couldn’t have made this up” files. According to the explanation attached to the YouTube clip:

Lip dub for the independence of Catalonia and the rest of the Catalan Countries, recorded October the 24th 2010 in the city of Vic. Achieving a total amount of 5.771 participants, the World Records Academy awarded the World Record for being the lip dub with highest participation ever. The initiative was born by a group of Catalans, whose aim is to let the whole world know that Catalonia is a nation, and without its independence it cannot be assured its survival and future. The chosen song was composed by the group “Obrint Pas” and its title is “La Flama”.

And it’s a ska tune, no less.

Gotta say, even though I write about issues of self-determination, secession, and statehood, I didn’t expect to read this on the front page of the Arts and Leisure section of the Sunday New York Times:

At a glance it looked like any small-town fair, with smoke wafting from the barbecue, families gathering around picnic tables, music percolating over loudspeakers and doting parents trailing after happy toddlers in front of white tents hawking brightly colored T-shirts and knickknacks.

But the Ghjurnate Internaziunale di Corti (the International Days of Corte) were hardly fun and games. It turns out that militant separatists, like baseball owners, car salesmen and trade unionists, also convene regularly to hash out strategies, exchange war stories and rally the troops. The Days, a late-summer annual affair, bring together militants from around the world. Those T-shirts and knickknacks were printed with hooded gunmen pointing rifles, and the barbecue raised money for jailed comrades. Even a few toddlers, like their parents, were decked out in military fatigues…

Sardinian separatists, Basque and Catalan nationalists, Melanesian Kanaks from New Caledonia, Occitanes from Provence and a few leaders of Sinn Fein joined locals to speechify and grumble about prisoners, debate tactics and talk cultural politics. Battles over sovereignty and independence are being waged far less often these days as violent campaigns than as hearts-and-minds political struggles over identity. And identity means culture.

State-building has long gone hand-in-hand with linguistic and cultural politics:

In the 19th century, rising modern states obliterated local cultures to fortify national identities only to pave the way for their revival at the end of that century. The same happened during the last century when the Soviets and Franco’s Spain, along with the British empire, imposed cultures on diverse peoples who, as soon as the opportunities arose, reasserted their own identities in more or less explicitly political protest.

But now cultural identities are fragmenting more than ever.

The irony is that constructing a supranational Europe, rather than homogenizing, say, Basques and Occitanes, into undifferentiated “Europeans,” has helped these movements to define themselves more clearly. For one thing, founded or unfounded fears of homogenization can be a spur to action (or at least to a sharper sense of self-definition). Moreover, (and seemingly contradicting this first point), EU practices can seem more protective of national minorities than local policies. Maite Goientxe, a Basque representative at the Days of Corte, notes:

“Like all cultural questions, language is ultimately a political matter. Basque is not permitted today in my part of France, which means Basque representatives from my region can speak Basque at the Parliament in Brussels, but not back home. From our perspective that’s discrimination. Critics say separatists promote division and exclusion, but we say independence movements are about the opposite of exclusion. We want to get rid of the exclusion we feel today.” [Emphasis added.]

Perhaps moreso than the much-anticipated ICJ Advisory Opinion on Kosovo, EU policies towards language rights and cultural diversity will likely be important factors in framing the ongoing push-and-pull between national minorities and national governments in the EU. If the Days of Corte are any indication, linguistic and cultural politics (more so than ideological or ethnic politics) will likely remain the central issues in this debate.

In the past twenty years the world of investment arbitration has taken the commercial world by storm. There are over 2,750 bilateral investment treaties and almost every one of them has an arbitration provision. Investment arbitration is now a prominent feature of the arbitration landscape.

Just as BITs have proliferated in recent years, so too have free trade agreements. There are approximately 380 free trade agreements now in existence, and yet the question of dispute settlement in the FTA context has rarely featured in the discussion. Sure, there have been NAFTA Chapter 20 cases, and the occasional ad hoc dispute–such as the Canadian-U.S. Softwood Lumber dispute. But international trade arbitration pursuant to FTAs is still in its infancy.

The recent EU-South Korea FTA signed last month may signal a new era of FTA arbitration. The dispute settlement chapter of this FTA combines features of both investment arbitration and the WTO DSU.

The procedures are similar to investment arbitration. There are provisions for the request for arbitration, establishment of an arbitral panel, rules on arbitrator conduct, rules governing proceedings, evidence gathering and hearings, time limits for the award, etc. There are a few unique provisions, such as drawing arbitrators by lot from a roster of fifteen, and adopting the seat of arbitration as either Seoul or Brussels, depending on which State is the complaining Party. But in most respects the procedures are familiar to other forms of arbitration involving States.

When it comes to remedies, however, the FTA arbitration rules are similar to the WTO. A non-complying State may offer compensation for a violation, or failing that, be subject to retaliatory countermeasures (i.e., increased tariffs). Those tariff increases may not exceed the level applied to other WTO members, but will result in the suspension of duty-free benefits under the FTA. Similar to the WTO, disputes as to compliance measures or deadlines are subject to further arbitration. The traditional recognition and enforcement questions under the New York Convention are irrelevant in this context.

Over 50% of all trade in goods occurs on a preferential basis. Like BITs, FTAs will continue to proliferate. Sophisticated dispute resolution mechanisms in FTAs are long overdue. The future portends a new world of international trade arbitration, and a growing international trade arbitration bar.

Obama apologized on Friday for experiments conducted in Guatemala between 1946 and 1948 in which American scientists deliberately infected prison inmates, prostitutes, and mental patients with syphilis without their consent.  The apology is a striking reminder that the Nazis were not the only ones that conducted horrific, non-consensual medical experiments on human subjects in the first half of the 20th century (although, to be sure, the Nazi experiments were vastly more brutal than any conducted by American scientists).  Indeed, America’s own sordid history of medical experimentation led to the worst example of perjured testimony during the Nuremberg Military Tribunals.  From Chapter Four of my book:

The misconduct involved Andrew Ivy, the head of the University of Illinois at Chicago’s Medical College, who was the prosecution’s star expert witness at trial. Prior to his testimony, he was present during the cross-examination of another prosecution witness, Walter Leibrandt, a professor of medical history at the University of Erlangen, who had testified that experimentation on humans was unethical even if the subjects consented and the experiments had medical value. On cross, Leibrandt admitted that the standard he endorsed condemned not only the defendants’ experiments, but also American malaria experiments conducted on inmates at Stateville Prison in Illinois during the war. Concerned by Leibrandt’s testimony, Ivy decided to defend the Stateville experiments by testifying that they had been overseen and approved by a public ethics committee. No such committee had existed, however, much less one that approved the experiments.

Undaunted, Ivy returned to the United States and convinced the Governor of Illinois, Dwight Green, to form an ad hoc committee – the Green Committee – to advise him on the ethics of medical experimentation on human subjects. Ivy did not tell the Governor that he intended to testify when he returned to Nuremberg, the committee never met, and the committee’s “report” was authored by Ivy himself. Ivy nevertheless not only claimed at the Medical trial that the Green Committee had approved the Stateville experiments, he responded to a defense question about whether “the formation of the committee had anything to do with the fact that this trial is going on” by testifying that “there is no connection between the action of this committee and this trial.” It is unlikely that the prosecution was aware of the true facts – but it is beyond question that Ivy blatantly perjured himself.

In an interesting move, the Medical tribunal permitted two defendants in the case, Ruff and Rose, to personally cross-examine Ivy.  Rose’s questioning was extremely effective — so effective, in fact, that the judges suddenly decided to limit him to 30 minutes of cross-examination!

That’s just a snippet from the book.  If you want to learn more, you’ll just have to buy it…

Something that our European readers have already probably heard as it is one of the most viewed stories on the BBC website (but not so much here in the U.S.), the Basque separatist terrorist organization ETA has renounced (at least for now) the use of violence: 

Armed Basque separatist group Eta says it will not carry out “armed actions” in its campaign for independence.

In a video obtained exclusively by the BBC, the group said it took the decision several months ago “to put in motion a democratic process”.

The Basque interior minister called the statement “insufficient”. Madrid has previously insisted that Eta renounce violence and disarm before any talks.

Eta’s violent campaign has led to more than 820 deaths over the past 40 years.

It has called two ceasefires in the past, but abandoned them both.

This latest announcement comes after the arrests of numerous Eta leaders and during an unprecedented period of debate within the Basque nationalist community over the future direction of policy, says the BBC’s Clive Myrie in San Sebastian…. [snip]

The pro-Eta party Batasuna, which has been banned since 2003 on the grounds that it is Eta’s political wing, is one of two Basque nationalist parties to have called on Eta to declare “an internationally verifiable ceasefire” days earlier.

In further analysis, the BBC’s Sarah Rainsford is not so sanguine:

It is widely accepted that Eta is weaker than ever in its 51-year history. So to many people, Eta’s retrospective ceasefire will look like an attempt to disguise its weakness as a desire for peace. Some will shrug it off as irrelevant; others will dismiss it as a way to regroup and re-arm.

Eta’s hope must be to negotiate the legalisation of Batasuna, and achieve its aims through the ballot box.

According to the Vancouver Sun, the chairperson Basque Socialist party seems to believe that there is some reason for hope, saying

that after talking over the summer to Brian Currin, a South African mediator who has worked with Batasuna, he believed the process towards laying down arms would come in two phases.

“The first, the truce, and the second, the verification by international individuals. What he (Currin) was saying is that Batasuna has said that ETA has to end (violence) and for the past year its assemblies have been voting 90/10 in favour.”

Let us hope that this really is an end, and not just a pause.

(And, by the way, yes, I know Hemingway’s A Farewell to Arms was set in Italy, not Spain.)

[CORECTION: A reader has corrected me-- part of A Farewell to Arms also took place in what is now Slovenia. And, I guess, there was some in Switzerland, as well. But the point was I knew that the title wasn't from one of Hemingway's novels on Spain. Opinio Juris readers sure keep us on our toes!]

Next week the ICJ will have oral proceedings in the case Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation). The .pdf of the press release is here. As far as I can tell, unlike in the Kosovo proceedings, there will not be an internet simulcast. (The Kosovo simulcast was very glitchy anyway, but now you can watch it archived.) Provisional measures have already been granted in this case; my take on the order is here.

Monday will also see the swearing in of Joan Donoghue and Xue Hanqin. The Court’s press release (pdf here) notes that this is the first time the ICJ has included two women.