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International Law Does Not Prohibit Commercial Asteroid Mining. Nor Should It.

by Julian Ku

Last week, the U.S. Congress passed the US Commercial Space Launch Competitiveness Act of 2015 (or the “Space Act”), which will authorize private U.S. companies to own and sell resources they extract from objects in space. Supporters (and detractors) are calling this historic, because it is the first time the U.S. government has plainly authorized commercial exploitation of outer space resources.  Here is some key language from the bill, which President Obama is expected to sign.

§ 51303. Asteroid resource and space resource rights

“A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”.

This provision has been criticized as violating U.S. obligations under the Outer Space Treaty of 1967.  Chief among those obligations is Article I of that treaty:

The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

There is also Article II, which seems to restrict claims of sovereignty in outer space.

Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.
The Space Act of 2015 tries to avoid this potential conflict by limiting itself to authorizing private citizen (as opposed to “national”) exploitation, and subjecting that exploitation to “international obligations of the United States.”  The Act also goes on to “disclaim” extraterritorial sovereignty (shouldn’t that be “extraterrestrial” by the way?)

It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.

I think the law’s backers are correct that it does not violate US treaty obligations. All it does is allow private US citizens to “possess, own, transport, use, and sell” extraterrestrial resources without violating U.S. law.

On the other hand, it is also true that other spacefaring countries could allow their citizens to do the same.  Indeed, I think their government space agencies could probably also do so, als long as they are not “claiming sovereignty.”  Without an explicit international treaty regulating commercial space resource exploitation, it will ultimately be a question of each country’s domestic regulations.   Can the U.S. live with that result?

I think it can.  In my view, the UN Law of the Sea created a complicated bureaucracy for handling management of the international seabed, way before any commercial exploitation of that seabed was even possible.  We don’t know yet what types of exploitation are feasible, and we might as well let this process evolve on its own before demanding a worldwide international treaty on the subject.  There will be plenty of time for that.

Apparently, I’m a 9/11 Truther (Al-Bahlul Revisited)

by Kevin Jon Heller

Only a “truther” who denies that al-Qaeda was responsible for 9/11 could doubt the international law basis for holding al Bahlul accountable for his role in this completed war crime.

So Peter Margulies argues in his latest attempt to defend the indefensible: al-Bahlul’s conviction for the non-existent war crime of conspiracy as an inchoate offence. To describe the accusation as offensive is an understatement, given that it accuses not only me and Steve Vladeck of being 9/11 truthers, but Judge Tatel and Judge Rogers, as well.

Even worse, though, Margulies’ arguments seem to have gotten even more problematic over time. Let’s take an in-depth look at his post. Here is how it opens:

Our amicus brief argued that upholding al Bahlul’s conviction would permit military commissions to try only a “narrow class” of cases outside commissions’ accepted jurisdiction…

Points for openly admitting that the military commissions’ “accepted jurisdiction” does not include jurisdiction over non-existent war crimes such as conspiracy. But no points for the claim that we shouldn’t hold courts to their actual jurisdiction as long as we are only letting them exceed their actual jurisdiction occasionally, in a “narrow class” of cases. You know, when it’s really, really important to let them exceed their actual jurisdiction. Last time I checked, jurisdiction wasn’t just a suggestion about the kind of cases a court can hear.


Al Bahlul challenged his conspiracy conviction on Article III grounds because international tribunals such as Nuremberg have generally declined to try defendants for engaging in an inchoate, stand-alone conspiracy (e.g., an agreement without a completed crime).

Note the fudge: “generally.” Not generally. Always. No international tribunal has ever convicted a defendant of conspiracy to commit a war crime. Not one…

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.

Should the U.S. Even Bother to Invoke Article V of the North Atlantic Treaty After Paris?

by Julian Ku

Ilya Somin of the Volokh Conspiracy has suggested that if NATO invokes Article V’s collective self-defense language against ISIS as a result of the terrible Paris attacks over the weekend, President Obama’s ongoing use of military force against ISIS could be “legalized” as a matter of U.S. constitutional law.  Here is Ilya:

Article 5 provides a much stronger justification for the war against ISIS than the previous extremely dubious rationalizations presented by the Obama administration. But it cannot retroactively legalize the President’s previous illegal actions, or the similarly unconstitutional war against Libya in 2011.

I agree with Ilya that the Obama Administration’s current domestic legal justification for the war against the Islamic State is sketchy at best.  But I am not sure I agree with him that Article V should be read as a “pre-authorization” for the President to use military force without going back to Congress for a specific authorization.

Here is the full text of Article V:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security .

I agree that the horrible Paris attacks would constitute an “armed attack” on a member of NATO “in Europe or North America.”  But I don’t think Article V requires the other NATO members to provide military assistance.  Rather, “if such an armed attack occurs,” a NATO member “will assist the Party so attacked [France]…by taking forthwith…such action as it deems necessary, including the use of armed force.” (emphasis added).

I read this language as requiring the U.S (for instance) to assist the attacked party (France), and that this assistance could “include the use of armed force.”  But I don’t think it has to.

Moreover, Article IX of the North Atlantic Treaty states that “[t]his Treaty shall be ratified and its provisions carried out by the Parties in accordance with their respective constitutional processes.” (emphasis added).  I read this as requiring Parties to carry out provisions like Article V “in accordance with their respective constitutional processes.”  If you are someone who believes that Congress must authorize the use of force by the President in most cases, than this language would mean that the President has to go back to Congress.  This might actually happen. Republican presidential candidate Jeb Bush actually called for a “declaration of war on ISiS” today.  

Of course, if you believe (as I do) that the President has independent constitutional authority to use military force without Congress in most circumstances, than all Article XI does not limit the President much.

In any event, I don’t think it makes sense to read the NATO Treaty as saying much at all about domestic allocation of war powers.  The main legal purpose of Article V was (is) to allow NATO countries to act consistently with the U.N. Charter’s limitations on the use of force (such as they are).  Invoking Article V should allow the U.S. to use armed force to assist France consistently with the UN Charter.  That might have mattered if the U.S. and France weren’t already using military force against ISIS in Syria in ways somewhat inconsistently with the UN Charter.  But they have been bombing for months already, so I am not sure it is even worth invoking Article V at this point.

The Daily Caller and Alan Dershowitz’s Dishonest Attack on MSF

by Kevin Jon Heller

It was only a matter of time before the far right began to attack Medicins Sans Frontieres (MSF) for being in league with the Taliban — and thus implicitly (nudge nudge, wink wink) the actual party responsible for the US’s notorious assault on its hospital in Kunduz. And the attack has now begun. Here is a snippet from an article today in the Daily Caller:

International law experts are blasting Doctors Without Borders for forcibly removing civilian patients from the aid group’s Kunduz, Afghanistan, hospital and replacing them with wounded Taliban fighters when the city fell to the rebel control in late September.

Alan Dershowitz, an acclaimed Harvard constitutional lawyer and authority in international law, said that he was not surprised that the group, known as Medecins Sans Frontieres, favored Taliban fighters over civilian patients, telling The Daily Caller News Foundation in an interview that he regards Doctors Without Borders as “Doctors Without Morals.”

Dershowitz charged the group with having a long history of anti-Western political stances and of not being neutral. He says MSF “is a heavily ideological organization that often favors radical groups over Western democracies and is highly politicized.”

The lawyer said the doctors also were hypocritical. “What they violate is their own stated mandate and that is of taking no political ideological position and treating all people in need of medical care equally. It’s just not what they do.”


Yet MSF itself may have violated a whole host of humanitarian laws by its own admission that Kunduz hospital administrators agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.

The acknowledgement was buried inside a Nov. 5 “interim” report released by MSF that traced the internal activities at their hospital leading up to the attack.

MSF disclosed in its report that on Sept. 28, the day the city fell to rebels, hospital administrators “met with a Taliban representative to discuss the need to free beds for other critical patients due to the ongoing fighting, and therefore for some patients to be discharged.”

On Sept. 30, MSF passively reported that “a large number of patients discharged from the hospital, including some against medical advice. It is unclear whether some of these patients discharged themselves due to the discussion to free some beds between MSF and the Taliban representative.”

I want to focus here on the claim that MSF “admitted” in its November 5 report that it “agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.”

Quite simply, that is a lie. MSF makes no such admission in the report.

We can begin with September 28. Prior to that date, most of the wounded combatants in the MSF hospital in Kunduz were government soldiers and police officers. As of September 28, however, the balance shifted to Taliban combatants:

As was the case since the opening of the Trauma Centre, the vast majority of the wounded combatants were observed to be government forces and police. In the week starting 28 September, this shifted to primarily wounded Taliban combatants… As far as our teams are aware, after this time [the afternoon of the 28th], no more wounded Afghan government forces were being brought to the Trauma Centre.  (p. 4).

The next day, faced with an excessive number of patients, MSF met with the Taliban:

MSF met with a Taliban representative to discuss the need to free beds for other critical patients due to the ongoing fighting, and therefore for some patients to be discharged and for those who required nursing follow-up to be referred to the MSF Chardara medical post (p. 5).

At this point — September 29 — half of the wounded in the hospital were wounded Taliban fighters (p. 5). Patients then began to leave the hospital the next day, September 30:

Starting this same day a large number of patients discharged from the hospital, including some against medical advice. It is unclear whether some of these patients discharged themselves due to the discussion to free some beds between MSF and the Taliban representative or whether there were general concerns about security as rumours were circulating of a government counter-offensive to reclaim Kunduz city. At the same time as patients were being discharged from the hospital, new patients were being admitted (p. 5).

The MSF report is careful not to identify whether the discharged patients were civilians or combatants. But there is no indication in the report that MSF agreed with the Taliban “to discharge Afghan civilian patients”; that MSF actually discharged civilian patients because of any such agreement; or that discharged civilian patients were replaced by “wounded rebel soldiers.” Literally none.

Indeed, everything in the report points to precisely the opposite conclusion: namely, that MSF convinced the Taliban to remove wounded rebel fighters from the hospital to open beds for new patients. The patients that left the hospital were not “removed by MSF”; the report makes clear that they “discharged themselves,” in some cases “against medical advice.” Are we supposed to believe that MSF ejected civilian patients against the advice of its own doctors and then dishonestly claimed the patients left voluntarily? That’s Ben Carson conspiracy land.

Did some civilians voluntarily leave the hospital because fear of the fighting? Perhaps. But it’s difficult to imagine why civilians would trade the relative security of a well-marked civilian hospital for the uncertainty of weathering intense urban fighting in their homes — especially if leaving was “against medical advice.” It is far more likely that the wounded who discharged themselves were Taliban fighters worried about their safety — even in a civilian hospital, and despite their wounds — given the possibility of a “government counter-offensive.” After all, as noted above, more than half of the patients in the MSF hospital were Taliban on September 30.

To be clear, because of MSF’s commitment to neutrality, it is impossible to state categorically that most of the patients who left the hospital on September 30 were Taliban fighters, not civilians. But it is fundamentally dishonest for the Daily Caller and Alan Dershowitz to claim that MSF “agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.” MSF admitted no such thing.

NYU JILP Symposium: Lopez’ Responses to Comments

by Rachel Lopez

[Rachel Lopez is an Assistant Professor of Law and the Director of the Community Lawyering Clinic at Drexel University’s Thomas R. Kline School of Law.]

This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.

First, I would like to thank Professors Drumbl, Roht-Arriaza, Teitel, and van der Vyver, who so generously offered their time and expertise to comment on my article. I have really enjoyed the opportunity to have these conversations with scholars whose writing has greatly influenced my own in near real time.

Response to Mark Drumbl

In a compelling and exquisitely written commentary, Professor Drumbl illustrates how collective memory (and storytelling more broadly) is evoked by survivors and perpetrators alike and reminds us of how thin the line between the two can be. He also highlights the contested nature of memory, resulting from a power struggle between those seeking to remember and those hoping to forget.

Professor Drumbl and I share much common ground in our assessment of the importance of remembrance after mass atrocity and how judicial proceedings can diminish its significance, which in turn frustrates and disenfranchises victims. We also agree about the notable concerns with permitting collective memory to be a source of evidence in the guilt phase of the criminal prosecutions.

Where Professor Drumbl and I part ways is when he suggests that the penal processes is so ill suited to accommodate collective memory that we should abandon that effort entirely. He astutely notes that the memories of survivors may splinter and diverge in ways that make its inclusion in judicial proceedings unworkable. I contend, however, that it is precisely for this reason that trials are such critical sites for the interjection of collective memory. On this point, I concur with legal scholar Mark Oseil when he argues that because trials are adversarial in nature, they are designed to accommodate dissensus and facilitate public discourse in ways that other institutions cannot. For instance, whereas truth commissions typically collect and catalog victims’ experiences into one official report that presents a single narrative, trials present multiple opportunities for the memories of different groups to emerge depending on who brings the claim and the scope of the conduct and events covered by it.

Professor Drumbl also cautions us that “[p]ushing one correct remembrance, and collectivizing it, risks memorializing the experiences of the strongest among the survivors while neglecting the recollections of the weakest.” I share this concern, but come to a different resolution about how to mitigate it. When lawyers are not permitted to admit collective memory and must rely on individual testimony alone, they are compelled to pick the strongest representative from their client base. That representative may engage in his or her own form of censorship, consciously or unconsciously, thereby excluding the voices of the broader affected community. On the other hand, permitting lawyers to submit victim impact statements in which a community collectively describes the harm from an alleged violation would broaden the number of voices who enter the process.

I also maintain that the lawyers are uniquely suited to act as preservers and promoters of collective memory, because of the trusting relationships they cultivate with their clients over time. In contrast, as Professor Roht-Arriaza and Laura Arriaza warn in Social Reconstruction as a Local Process, “a short-term truth seeking endeavor cannot hope to garner widespread trust among people of a deeply traumatized society, and thus the testimonies taken may be from those less affected, or more articulate…”

Furthermore, because lawyers owe fiduciary duties to their clients, they are better positioned to present their collective narrative. I fear that the external institutions that Professor Drumbl proposes as alternative sites for collective memory are more likely than lawyers to have divided loyalties. Since these institutions would obtain their mandates and likely their funding from external sources, they may be captured by outside interests that deviate from those of the victim group. In the interest of sounding neutral, they might also water down or incompletely portray victims’ stories. The problem of selectively authenticating one memory over another would be compounded.

If we aim to tether collective memory to remedies that more systematically address harms, I also believe that lawyers can play an important role in generating consensus among their clients about what relief is appropriate.

Response to Naomi Roht-Arriaza

Professor Roht-Arriaza offers a carefully considered and thoughtfully crafted commentary that furthers the conversation on the complementarity of collective memory and judicial proceedings.

First, she reminds us that not all post-conflict settings are the same and in some localities, communities may be so disrupted that collective memories are not formed. That observation aligns with my own experience working with societies in transition after mass atrocity and I would like to underscore my agreement with Jaya Ramji-Nogales that transitional justice must be bespoke. Put another way, both the form and objectives of transitional justice must be tailored to the local context and driven by homegrown demands. There is no one size fits all option in transitional justice.

For that reason, in some respects, what I suggest is quite narrow. As I explain in my article, “[w]hen I advocate for the admission of collective memory into judicial proceedings in this article, I am referring to the collective memory of groups of victims who were present or directly affected by the same event or experience.” Two preconditions are necessary: 1) there must be a group of survivors of the same event or alternatively groups of survivors who share a common experience and 2) they have must engaged in memory work and arrived at a common understanding of events.

As Professor Roht-Arriaza points out in her commentary, and I explain in my article, some of the rules of international and domestic courts may already lend themselves to the admission of collective memory. At the same time, other rules discourage attorneys from pluralizing the attorney-client relationship. For instance, pursuant to the International Criminal Court’s rules of evidence, attorney-client privilege is waived if the client discloses information to a third party, including fellow survivors. In addition, human rights lawyers, who were educated in countries with western legal traditions that propagate an individual-centered understanding of the law, may feel intrinsically wary of collective representation.

Professor Roht-Arriaza invites further discussion about how we might incorporate the on-ground experience of communities into the design and implementation of measures of non-repetition. It is my view that one critical step to accomplish that goal is to be more intentional about creating space for collective voices in judicial proceedings.

Response to Ruti Teitel


NYU JILP Symposium: Collective Knowledge and Mythology

by Johan Van der Vyver

[Johan D. van der Vyver is the I.T. Cohen Professor of International Law and Human Rights, Emory University School of Law, and Extraordinary Professor in the Department of Private Law, University of Pretoria.]

This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.

Knowing the truth and holding persons accountable for wrongdoing are important preconditions for reconciliation of communities in transition. There is a certain discrepancy between these two components of transitional justice. Truth commissions as an expedient mechanism for the cultivation of an impartial historical record through collective memories of past atrocities of perpetrators and victims alike seem dependent on amnesties for serious wrongdoing during the preceding age of repression. As evidenced by the South African Truth and Reconciliation Commission, which was instrumental in transforming the Republic of South Africa from a racist oligarchy into “an open and democracy society based on human dignity, equality and freedom,” amnesties for serious wrongdoing was an essential precondition for revealing the truth, the whole truth, and nothing but the truth.

Creation of the International Criminal Court (ICC) in 1998 has clearly implicated this tension between retributive and restorative justice. There are clear indications that establishment of the ICC ruled out amnesties for any of the core crimes of customary international law, and truth commissions without amnesties seems to be a contradiction in terms. At the Rome Conference, the United States noted in a non-paper that conflicts might arise between international prosecutions and truth commissions but did not take the matter further, and the issue was therefore not further pursued in Rome. At a final social event in Rome, Philippe Kirsch, chairman of the Committee of the Whole who was to become the first President of the ICC, was asked by one of the delegates about the future of truth commissions, and he responded that this was “a creative ambiguity” to be resolved if the matter should come before the ICC.

Collective knowledge is not necessarily accurate knowledge of historic events. Nor should it be.

Many years ago, a visiting professor from the Netherlands delivered a public address at my alma mater in South Africa on “History and Mythology.” He noted that the stories recorded in Greek mythology were not really based on empirical facts and events but were fabricated by their authors to instill in the minds of the readers a certain moral consciousness―a perception of right and wrong. History as recorded in textbooks also does not reflect the truth. Abraham Lincoln was not really, really the person as recorded in history books. Historians reflect an idealized image of this great man; and in doing so they instill in the public mind a certain moral perception of good governance. By contrast, history records in exaggerated form the bad characteristics and wrongdoing of the deplorable characters of the past in order to creating a perception in the minds of the people of what ought not to be. History as reflected in history books serves the same purpose as Greek mythology. History, in a word, is mythology.

If I were to translate this into the current recording of South Africa in transition, I can already see the emphasis on the wonderful contributions of Nelson Mandela toward political change and reconciliation, and perhaps an exaggerated portrayal of the lust for power, for wealth and for sex of President Jacob Zuma as the icon of impropriety. South African governments of the past have had their ups and downs. Prior to political change in the country in 1994, successive governments applied a policy that has now come to be condemned by the international community of states as a crime against humanity. But as far as defiance of the rule of law and disrespect for judgments of courts of law are concerned, no government in the entire history of South Africa has stooped so low as the one currently in command!

And there is one more matter relating to collective memory as a component of transitional justice I wish to emphasize.

In 2008, Karl Doehring (1919-2011), internationally famous professor of General Political Science and of International Law at the University of Heidelberg in Germany, published a book entitled Von der Weimarer Republic zur Europӓischen Union (From the Weimar Republic to the European Union), which is in essence an autobiography. In the opening introduction he proclaimed that current generations looking back at past historical events can describe what happened, evaluate and criticize those events, and seek guidance for future conduct, but―proclaimed Prof. Doehring―if you haven’t been there at the time and personally experienced what happened, you will never understand it.

Collective memory of past events in the minds of peoples in transition is not merely designed to record and to understand history; it is destined to secure a better future. We may not accurately record or truly understand the policies and practices of the past, but must apply our collective, and perhaps mythological, knowledge to secure a better future.

John Jackson, the Gentle Giant of International Trade Law

by Joel P. Trachtman

John Jackson died on Saturday, November 7, 2015, at the age of 83. He had an incredibly productive and creative career, with achievements enough for several lifetimes, and, despite that, he was a lovely and gentle man, who exuded true modesty. In this brief memorial, it would take too long to do justice to his achievements. The highlights of his career, including many important publications, coveted awards and honors, and other major milestones, are summarized nicely by Georgetown Law Centre, where he taught since he left Michigan in 1998.

During the permanent political silly season we are experiencing in the U.S., where bluster and puffery often pass for leadership, it is comforting to think of John Jackson’s authentic, modest, and altruistic leadership of the field of international trade law. He did not seem to intend to lead. Rather, I believe that he moved step-by-step, as his own intellectual curiosity and public spirit drove him at each turn. In doing so, he cultivated a field by writing leading books and articles, educating and mentoring its leading scholars and practitioners, writing important laws, founding the leading journal in the field, and designing a world-improving international organization. He did not cultivate this field to advance his own career, but rather was driven by a spirit of inquiry and of public service. In doing so, he made a major contribution to global society.   For those who would like to see Jackson speak, or hear his own views about some aspects of his contribution, this 2012 interview is a good place to start.

The world can pay no greater tribute to a legal scholar than to adopt his or her ideas. I will provide a vignette of Jackson’s achievements by focusing on the most remarkable of these tributes bestowed on Jackson, the 1995 establishment of the WTO in substantially the form that Jackson recommended in 1990. Perhaps the formation of the WTO, on the cusp of the 21st century and the third millennium, will be regarded in the future as an act of great historical significance. Jackson was present at the creation, and in fact, he was one of the creators.

In his 1990 monograph, Restructuring the GATT System, Jackson set out a critique and a prescription for institutional reform of the GATT: he provided the reasons for, and the design of, the WTO. Jackson put aside the particular trade concessions being negotiated in the Uruguay Round, in favor of “longer-term” and “more fundamental” issues of institutional and, he dared to say, constitutional, structure. Just as only Nixon could have “opened” China, only someone so pragmatic and so immersed in the doctrine, politics, and day-to-day mechanics of the GATT could open up the idea that what was needed was “constitutional.”

Jackson laid out the foundations of his prescription carefully, examining the (unfortunately termed) “birth defects” of the GATT itself, as well as the stillborn International Trade Organization (ITO), the third of the Bretton Woods triplets. He cataloged the GATT’s institutional problems in decision-making, amendment, balkanization by side agreements, dispute resolution, and secretariat services. He saw the rectification of this system as part of a broader evolution: “To a large degree, the history of civilization may be described as a gradual evolution from a power oriented approach, in the state of nature, towards a rule oriented approach.”

Thus, Restructuring the GATT System, based on thirty years of observation and analysis, formed the basis for Jackson’s advice to the government of Canada regarding institutional issues in the Uruguay Round. Jackson explicitly took a “problem-solving” approach. However, he made the jump from addressing specific problems to a more comprehensive, forward-looking and “fundamental” approach. Jackson saw that the charter of the new organization must be simple and discrete, “focused on the institutional and procedural issues, largely leaving substantive rules and obligations to other treaty instruments such as the GATT which would be served and ‘sheltered’ by the broader organization.” This intuition was the result of a combination of vision and modesty. Jackson saw the need for an overarching organization, but recognized the lack of political support for a complex organization that required more extensive substantive rules and locked them in place. Jackson named the “World Trade Organization” and specified that it would function to support not just the GATT but also, inter alia, an agreement on services and an agreement on intellectual property. Jackson then outlined the WTO charter, covering the fundamental topics actually agreed four years later.

Of course, the structure of the WTO is only the most publicly visible of Jackson’s contributions. It is possible that this contribution will be equaled or exceeded by his contribution to the education and mentoring of practically all the world’s trade law scholars and practitioners, often directly, but otherwise through his publications.

John Jackson dealt not only in punctilious scholarship, rigorous education, careful policy prescription and incisive and creative analysis, but did so with the greatest integrity and humanity. We will miss him, but we will remember him in gratitude for the work he did and the example he set.

NYU JILP Symposium: Globalizing Transitional Justice

by Ruti Teitel

[Ruti Teitel is the Ernst C. Stiefel Professor of Comparative Law at New York Law School and the author of Globalizing Transitional Justice (2015).]

This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.

I am pleased to join this symposium about Rachel Lopez’ provocative article, The (Re)collection of Memory after Mass Atrocity. The article makes a contribution to contemporary transitional justice scholarship that challenges the normative relationship of transitional justice and human rights.

Professor Lopez, argues for “collective memory” over individual justice, characterizing the the two aims as divergent. She writes, “the preservation of collective memory is in tension with another impulse that follows mass atrocity: the desire for justice.” Here one might say she is leveling a critique at the “human rights-ization” of transitional justice—a critique which I share, as is evident in a recent essay where I argue against an absolutist view of accountability.

Nevertheless, to my mind the dichotomy drawn here between the demands of memory and justice seems too sharp. To some extent, the article hearkens back to an earlier period of transitional justice; the post-Cold War 1990’s when states seemed to be in control of their transitional justice processes and could elevate the needs of the people over abstract universal demands of justice.

But is this view relevant given contemporary developments; such as the globalization of transitional justice. Given the many other actors and institutions which are now involved in these processes I wonder about notion of a goal of arriving at a unified or unifying collective memory of an atrocity or conflict?

Indeed, one can see the emergence of a globalized transitional justice—and this means more actors beyond the state with varying demands, practices and values. Who then owns the process of arriving at “collective memory?” Collective memory raises issues of the politics of transitional justice   can see national agreements regarding transition and reconciliation but also the role of courts and diasporic populations. Consider what collective memory may mean to a state undergoing transition, and what to diaspora communities, such as Armenia today or Cuba? Who or what counts for collective memory? For example, one can see national agreements regarding transition and reconciliation but also what the role of courts and diasporic populations has been to challenge these national determinations. Consider Chile’s extradition of Augusto Pinochet: while on the one hand Chile had convened a truth and reconciliation commission, nevertheless these issues were reopened by members of the diaspora who are surely also part of some collective memory?

Moreover on this view, not only is justice not in tension with collective memory but often memory processes are often overseen or even instigated by international institutions such as courts. All of which raises the inevitable question of what is collective memory—whether there is a prefiguring of this or whether there is not an inevitable social political and yes even legal construction? And, if so, then one might raise normative question of to what extent is the cultivation of such memory necessarily a good thing? That is, in a truly liberal society what is the contribution of protecting an official story? Consider that in Argentina as in Germany today there continues to be a socially accepted militancy regarding memorialization, for example, militant democracy approach to protection of the official story.

One can even say this is true throughout the Americas where the Inter-American Court of Human Rights has aimed at a harmonized rights approach to these issues. Not only is justice not in tension with collective memory, but todays collective memory processes are often supervised and even inspired or instigated by international institutions here, including courts. One can see this in the Inter-American setting where the regional human rights court has taken an aggressive view of memory as a right of victims in a fully developed jurisprudence. For example, in Goiburú v. Paraguay, a case involving torture and disappearances, the court ordered collective memory via the convening of a monument and public acts of acknowledgment of past repression and the victimization. But what is the social significance of a coerced collective memory ordered by a regional rights actor? While the pursuit of the official story may well be seen as acceptable in Latin America given continent-wide disappearance policies, to what extent is this collective memory being guarded by the regional court?

Another example is Germany, whose collective memorialization process began in earnest through the nationwide portrayal of the Auschwitz trials. To this day, there is a view that lawyers and legislation, such as hate-speech-denial laws (even criminal), ought to be deployed to protect the country’s official account via Nuremberg and other trails on the collective memory of the Holocaust from which there can be no divergence.

Hence we can see that the relationship of justice and collective memory is complex. In a truly liberal society, militant-democracy approach to memorialization would ultimately give way as the society matures and democracy becomes consolidated. Indeed, with the passage of time, that there will be multiple paths of access to memory, a process of social and political construction.

NYU JILP Symposium: Collective Memory Focus on the Local, and on Reform

by Naomi Roht-Arriaza

[Naomi Roht-Arriaza is Distinguished Professor of Law, University of California, Hastings College of Law.]

This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.

Rachel Lopez’ article breaks new ground in a few ways. We’ve known of the importance and process of formation of collective memory for nearly a century, as she points out. There’s a whole literature on the reasons for prosecutions in the wake of mass atrocities, and the reasons why those reasons don’t apply. Given that, I appreciated her novel insight that when there’s a long temporal lag between the end of the violations/atrocities/crimes and the ability to bring the perpetrators to justice, that disrupts existing collective memories and opposes them to an individual-centered judicial process.

Of course, an easy answer to the problem would be to hold trials closer to the time of the alleged crimes, while collective memory is still in the process of formation and consolidation. It may be that the erosion through external and civil society pressures of a still widespread preference for impunity, and earlier attention to (re)building a justice infrastructure in the wake of armed conflict or dictatorship, will eventually make that possible. But I’m a bit pessimistic. Judicial processes always take a long time, except if they ride roughshod over due process; judicial processes involving previously, and perhaps still, powerful people who will fight like hell to avoid them, take longer. So the temporal lag is likely to persist.

I’m not sure, though, that the result is necessarily a confrontation between the fruits of collective memory and the individual testimony of witnesses. International courts, and domestic courts applying civil law, do not have strict hearsay rules that preclude witnesses testifying about events involving others in the community. In many local communities that have retained some degree of cohesion in a post-war era, an informal process of discussion, recall and vetting precedes any discussion of sensitive memories with outsiders, whether these are truth commissions, prosecutors or courts. For example, our work in Guatemala found a number of examples of community-level constructions of collective memory through mapping exercises, community museums or rituals around inhumation and reburial of the dead, which later fed into judicial processes in various places.

Collective memory is reproduced and perhaps expanded, but not necessarily challenged, in individual testimony.

However, this is not true everywhere, as war and repression inevitably disperse, degrade and destroy community. This presents a problem for collective memory, both because it’s no longer clear who is included in the collective, and because the internal processes of reconstruction, retelling and comparison of memories that creates collective memory are disrupted. Under these circumstances, trials can actually both reaffirm and reinvigorate collective memories by broadening the sphere of the “collective” to those listening to trial testimony, who find their individual memories validated. Of course, they can also give rise to counter-narratives, a “dissensus” that can in theory enrich civic discourse but that in practice is often intimidating, silencing, and violent. The Guatemalan Rios Montt genocide trial offers one example.

The other aspect of Rachel Lopez’ article that I found provoking was her recommendation to use the tools of community lawyering to better allow communities more of a collective say in processes of reparations and in the design of guarantees of non-repetition. To some extent, as she recognizes, this is already done, not least by the Inter-American Court of Human Rights, which regularly recognizes injuries to collectivities and orders appropriate redress. A number of national reparations programs have, at least in design, been attentive to the dimension of collective harm and collective redress, for example Peru, Colombia and Cambodia.  No doubt more could be done.

Where the big gap lies, in my view, is in the design and implementation of measures of non-repetition. Intended to respond to the underlying causes and amplifiers of armed conflict and/or repression, these have often been framed with a donor-driven or elite-driven logic that makes no room for the on-the-ground experiences of communities.   So they have focused on a narrow band of civil and political rights violations, ignored or underestimated continuities of violence—around women’s rights, or extraction of natural resources and expropriation of community lands, for example—and been accorded insufficient resources, imagination, or importance. Even where broad-ranging reforms are incorporated into peace agreements or transitional justice plans, as was the case in 1996 in Guatemala, these are not translated into practice. Here is where the overlap and synergies between community lawyering, bottom-up consultation and collective interests, economic development and transitional justice provides fertile ground for further research and discussion.

NYU JILP Symposium: The Memories of Collectives, the Gadgetry of Victimhood

by Mark Drumbl

[Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington & Lee University, and Visiting Scholar, CICJ, VU University Amsterdam.]

This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.

Atrocity begins with story-telling. Elegies lament unrighted wrongs from ancient battles. Fables weave and spin the bravado of national or ethnic superiority. The roll, pitch, and yaw of an entire literature ritualizes dehumanization: stories of vermin, poisonous mushrooms in children’s books, bespectacled intellectuals, enemies of the state. Then come exhortations to cut the tall trees, to take out the garbage, and to make way for Lebensraum. The filth is to be scrubbed, the society purified, the landscape cleansed.

Atrocity metastasizes once these stories become performed. New stories then emerge. These stories narrate pain and suffering. Their tales, however, may redound with redemption; their ballads may record harrowing strategies of survival paired with forensic accounts of death; at times, too, chants of resistance arise.

In the aftermath of atrocity, these stories become memory. The construction of memory, then, becomes an act of the living and a sign of life. For survivors, authorship over memory represents the exercise of agency and autonomy. For perpetrators and their supporters, revising (or denying) memory – also an act of authorship – becomes a tactic to thrive in changing times.

It is no surprise that in the aftermath of mass atrocity the recovery of memory, and its reclamation, matters so much to so many. The hunger for memory, however, intersects with the blandness of law. This encounter frustrates, perhaps most acutely for victims.

It is here that Professor Lopez enters the conversation. She recognizes this frustration. She also gestures towards a path forward. For her, law can respect memory. It can channel stories of survival, subjugation, and suffering. While Professor Lopez is an optimist about law’s potential, she remains more circumspect about how, exactly, we should understand memory. In a particularly thoughtful argument, she contends that conversations ought to move towards “collective memory.” For Professor Lopez, collective memory arises when those most affected by mass atrocity “though discussion and ritual … merge their fragmented recollections into one holistic narrative.” Collective memory is unscripted. It emerges organically through a synthesis of informal conversations, shared glances, tacit rejections, and knowing nods. Drawing from a rich array of sources, Professor Lopez posits that collective memory is more accurate, consistent, and concise than individual memory.

In sum, then, Professor Lopez effectively exposes law’s predilection for individual conduct and illustrates how this penchant inhibits law’s ability to inflect collective action. For her, this is a loss. It is a loss because victims yearn for more. Professor Lopez’s response is reformist. Human rights lawyers should preserve and promote collective memory. Integrating collective memory of victims into legal process, for Professor Lopez, would clarify how atrocity begins and could document the pain it inflicts, while also furthering aspirations of reconciliation, transition, the development of an historical record, nation-building, and legal reform.

How to accommodate collective memory into legal proceedings? Professor Lopez’s recognizes that the criminal law may find such accommodations awkward, if not downright unworkable. The criminal law, after all, is primarily about adjudging the guilt or innocence of the defendant. The need to focus on the defendant requires the foregrounding of all sorts of due process rules. This need stymies the use of collective memory in penal process because collective memory cannot be properly vetted. Professor Lopez therefore directs our gaze elsewhere. She points to tort-based claims, action civile, and the victims’ participation scheme built by the Rome Statute and present at the ECCC.

Professor Lopez’s article makes a tremendously valuable contribution to the literature on transitional justice. Her diagnosis of law’s foibles, and her proclamation of the potential of collective memory, is sterling. She has the courage to offer some remedial responses. Her article is a rich base for a symposium.

For me, her piece opens two shutters. The first is architectural. The second is discursive. (more…)