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Symposium: Transplanting International Courts–An Andean Tribunal Judge’s Perspective

by Luis Diez Canseco Nunez

[Luis Diez Canseco Nùñez served as a judge and then President of the Andean Tribunal of Justice, ending his tenure in 2017.]

Alter and Helfer’s book Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice constitutes an important contribution to the study of the international dispute settlement system. It honors me, as a former Judge and President of ATJ, that two prestigious researchers have devoted their time to evaluate our court and its work. I want to highlight my absolute agreement with their analysis and conclusions and offer sincere congratulations!

But there are things that an academic book, no matter how laudatory, cannot capture. I will use my contribution to highlight some missing elements, including some new developments that from the perspective of a judge are significant.

Being an international judge is a certainly an honor, but also a challenge. Representatives of governments often erroneously assume that our position on a case should be aligned with that of our respective countries. This misperception has its origins in two factors. Firstly, the structure of the Andean Tribunal, which includes one judge for each Member Country. Secondly, some judges have backgrounds as diplomats, senior government officials, and even connections that make them close to a government.

Before my election, several colleagues asked me why I wanted to become a Judge at the ATJ. They suggested that the appointment was for people either aspiring for an international legal career or seeking a golden retreat into retirement. Others suggested that it was not worth joining an entity that was in the course of disappearing and in perpetual crisis (for the reasons that Alter and Helfer discuss in their book, namely the disagreement among member states over the direction of economic and trade policy). Indeed, I later participated in several meetings in which government representatives spoke out loud about the need to restructure the Andean conflict resolution system, conversations in which some officials actually suggested abolishing the ATJ and instead recreating the panel system used by the WTO. Those who questioned why I would want to be an ATJ judge also noted what Alter and Helfer discuss: the ATJ is a cut in paste institution that merely replicates previous decisions, particularly with respect to intellectual property. The job would therefore, they suggested, lack creativity.

These comments were precisely the reason why I decided to advance my candidacy, and if elected, to try to make a difference. It was a sort of new challenge in my life. I wanted the ATJ to be more externally engaged, yet to also issue judgments as quick as possible. Moreover, I wanted the decisions to be more precise and friendly to those who read them, and I wanted to promote more scrutiny and awareness. Working within, first as a judge and then as President of the Tribunal, I crafted solutions for some procedural issues such as tied votes and allowing access to administrative bodies of Member Countries to request for Preliminary Rulings. A number of these changes are mentioned by Alter and Helfer, who express surprise that reforms and expansion of the caseload and jurisdiction came despite crises in the Andean Community. The answer is simple: innovative judges may be focused on the institution in which they work, rather than the larger never ending political crisis that surrounds the institution.

For judges, procedural changes are significant. I want to briefly discuss two changes that from the perspective of the judge are important in adjudication politics. Both of these receive scant attention in an analysis as comprehensive and encompassing as that of Transplanting International Courts.

Dissenting opinions

For many lawyers, dissenting opinions are common practice. But this wasn’t the case for the ATJ. By contrast, Andean judges believed that the lack of dissenting opinions or, alternatively, the lack of knowledge about judicial disagreements, helped the Tribunal send a message that was consolidated and strong.

ATJ decisions had traditionally been written by a single judge and discussed and signed by all, even though dissent existed in the form of unacknowledged votes against the ruling. This format hid the many points of dissent we would debate in deliberations, and thus I believed that the formality of unanimous rulings limited scrutiny, debate and feedback. As a prelude to creating dissenting opinions, we needed to take a number of interim actions. First, we needed to restructure the format of the decision, highlighting the matters under controversy. Second, we had to make public who was the Judge responsible for drafting the decision. Third, we had to decide to list the judges who voted in favor and if it was the case, to indicate who disagreed. Fourth, we needed to allow the disagreeing judge to publish is dissenting vote and the bases of their disagreement. Finally, we needed to allow the parties to access the dissenting decision. This sort of step-by-step detail–each of which is significant– is, quite understandably, lost in the type of analysis Alter and Helfer undertake.

During my tenure, we discussed the possibility of publishing dissenting opinions as an annex to the judgement of the majority; but the rules of the Court didn´t allowed for this. Very recently, by Agreement 09/2017 published on 29 November 2017 in the Official Gazette of the Andean Community, the ATJ agreed to issue an Information note which indicates that, once the final decision has been published, persons concerned may request access to dissenting opinions. This is still far from public dissenting opinions, as one finds in the ICJ. I provide this detail so that observers can see the many steps needed for change.

Oral Hearings

A second change that is important for judges is the decision to allow Oral Hearings for Preliminary Rulings cases. The Andean regulations expressly refer to the possibility of oral hearings in the framework of the Omission, Nullification and Noncompliance procedures; but rule of procedure is silent with respect to Preliminary Rulings, neither authorizing nor prohibiting oral hearings.

In my opinion, in cases having particular complexity, impact or novelty, an open oral phase or the possibility of affected actors to summit briefs to the ATJ, will help to ensure that the ATJ can entertain new points of view that might not have occurred to them. In this perspective, it is important to recall that the law and the circumstances surrounding particular cases are in a constant evolution. The law can´t be petrify.

Recently, by Agreement 08/2017 published in the Official Gazette of the Andean Community, the ATJ adopted a Regulation that normalizes various aspects regarding the nature of the Preliminary Rulings, which has codified a number of the internal procedural changes implemented during the last years. These changes are partly responsible for the expanded the number of Preliminary Rulings, something that Alter and Helfer observe but do not explain.

Article 9 of this new agreement refers to ‘reports written or oral.’ This small change opens the door for convening oral hearings in exceptional Preliminary Ruling cases. While this change is significant, the new language fails to incorporate the possibility for the parties in the process, who will be directly affected by the decision, to provide their points of view and be questioned by the judges. One thus sees the slow hand of reform at work!

These subtle changes, which may be imperceptible to those outside of the Tribunal, are important to the process of building the Tribunal’s reputation for sound judicial decision-making. While I understand why Alter and Helfer do not investigate these types of changes, a more judge-centric perspective might bring to light a different set of factors that shape the law and politics of the Andean Tribunal of Justice.

Symposium: Alter and Helfer’s Liberal Theory of International Courts–Interlocutors, Context, Backlash

by Mark Pollack

[Mark Pollack is Professor of Political Science and Law, Director of Global Studies, and Jean Monnet Chair at Temple University in Philadelphia.]

Reading Karen Alter and Larry Helfer’s Transplanting International Courts took me back, involuntarily, to graduate school, and more specifically to a moment of (in retrospect) misplaced outrage during my first-year International Relations Field Seminar. The professor in that seminar, Robert Keohane, was telling the assembled first-year students that, when it came time to write our dissertations, we should not select our cases for their inherent interest or normative importance. Instead, scholars should select cases for the “leverage” they provide in producing generalizable findings about international politics. As a student who had just fallen hard for the then-resurgent European Union, I insisted on the value of studying such a grand experiment, even if it was sui generis, since it affected the lives of 300 million European citizens. Real-world significance, I argued, beat analytic leverage as a criterion for case selection, any day.

Alter and Helfer’s study of the Andean Tribunal of Justice (ATJ) demonstrates clearly why I was wrong, and Keohane right, about case selection. To be sure, both Alter and Helfer made the same initial choice in their careers that I did, studying powerful European courts that issued thousands of decisions and meaningfully impacted the lives of millions of European citizens. In their new book, however, Alter and Helfer pivot to the ATJ, a rather specialized international court (IC) that serves a small community of four developing states, issues more than 90 percent of its rulings in the narrow area of intellectual property (IP) law, and whose judges have produce a jurisprudence that is, by the authors’ own characterization, restrained, formalist, and deferential to the views of the Andean Pact’s member governments (15).

And yet, Alter and Helfer, by focusing on the ATJ, do indeed gain leverage on a wide variety of important questions about international courts, including and especially the question of how legal transplants – in this case, one of the eleven regional courts modeled on the European Court of Justice (ECJ) – operate in practice. Taken together, they argue, the ECJ and ATJ represent a natural experiment, with similarly (though not identically) structured courts placed in very different political contexts, allowing the authors to assess the impact of contextual factors on their operation. Beyond the comparison with Europe, moreover, Alter and Helfer argue that, if we want to understand the workings of ICs outside the rule-of-law hothouse of Europe, we could do far worse than to study the ATJ, which has taken root in a challenging political and legal context that is characteristic of many of the ECJ’s copies around the world. The rewards of reading Alter and Helfer’s book, therefore, come not from learning about an esoteric island of IP law, but precisely from gaining leverage from the ECJ-ATJ comparison and drawing inferences about how ICs operate in challenging climates.

In Isaiah Berlin’s canonical distinction between foxes (who know many things) and hedgehogs (who know one big thing), Alter and Helfer are foxes, and their study of the ATJ yields insights into a wide variety of questions. Nevertheless, there is a theoretical core to Transplanting International Courts, which I would describe as a liberal, contextual approach to ICs. This approach locates courts in their international and especially domestic contexts, and explores how ICs interact, not only with state governments (which Alter and Helfer believe have been overemphasized in previous scholarship), but also and especially with other supranational and domestic actors. Given the wide range of topics they address, any review of their book must be selective, and I select just three themes – interlocutors, context, and backlash – as the core value-added contributions of the volume over existing scholarship, including Alter’s and Helfer’s previous work.

Interlocutors – If You Can Find Them

Perhaps the central focus of the liberal approach to international courts, which informs Helfer and Slaughter’s 1997 article on supranational adjudication, Alter’s 2001 book on the ECJ, and her 2014 book The New Terrain of International Law, is the relationships than an IC cultivates with its various supranational and subnational interlocutors, including regional secretariats, national courts, government agencies, individual litigants, and jurist advocacy networks. These “compliance partners,” it is argued, are fundamental to the success of any IC, and Transplanting International Courts continues this focus on interlocutors as the sine qua non of effective international adjudication. Strikingly, however, Alter and Helfer find that the usual-suspect interlocutors, namely national courts, were and are resistant to sending preliminary references to the ATJ, perceiving the Tribunal as a potential threat to their own position. In this context, the ATJ has fallen back on de facto partnerships with other interlocutors, including and especially national IP agencies, which the Tribunal strategically allowed to submit preliminary references. To the extent that the ATJ has succeeded in creating and sustaining an island of effective supranational IP jurisdiction, Alter and Helfer argue, that success can be attributed largely to the interlocutors who have activated and supported the Tribunal.

Context: Facilitating or Frustrating

Alter and Helfer’s liberal analysis, however, extends beyond their focus on courts’ ties to domestic interlocutors. Also present in Transplanting International Courts is a keen awareness of how differences in political and legal context can fundamentally shape the effectiveness of any IC. The importance of context is particularly salient in Chapter 8 of the book, “Nature or Nurture,” which argues that the differences between the activist, teleological jurisprudence of the ECJ and the more restrained and deferential decisions of the ATJ can be explained by the more propitious legal and political context of the EU, which “nurtured” the ECJ in a way that was at best loosely approximated for the ATJ in the issue-area of IP law. Indeed, Alter and Helfer concede in their conclusion that the success of the ATJ is only partial, and that a difficult context can frustrate even the choreographed actions of a strategic court. The “glass-half-full” account of the ATJ, they write, focuses on how the Tribunal secured a “toehold” in a narrow issue area (IP law) and with one set of interlocutors (domestic IP agencies), creating an island of effective international adjudication (264). “The glass-half-empty counterpoint,” by contrast, “is reflected in the ATJ’s inability to mobilize a jurist advocacy movement… and in the limited impacts the Tribunal has had on Andean law beyond the field of IP” (264).

Stepping back from the specifics of the ATJ case, Alter and Helfer, in a remarkable passage at the end of the book, depart from much of their earlier optimism about the generalizability of the European experience to other regions:

If the ATJ is the most successful example of an international court in a developing country context, the significant limits of its success should instill a sense of caution in those who hope that such courts will transform the legal and political landscape. The most that an international court can do, we argue, is to help states individually and collectively adhere to legal rules they have imposed upon themselves. (282)

In this context of reduced expectations, the famously formalist and deferential jurisprudence of the ATJ appears not as a failure of nerve, but as a “politically astute” effort to bring along reluctant interlocutors while avoiding triggering a backlash from national governments (273).

This claim is as debatable as it is fascinating. In their contributions to this forum, Alexandra Huneeus and James Gathii identify other regional courts operating in developing country contexts – the Inter-American Court of Human Rights, and the ECOWAS Court, respectively – that have engaged in activist, expansive, law-making jurisprudence, imposing human rights obligations on member states that clearly did not anticipate or welcome them. Implicit in Alter and Helfer’s endorsement of the more deferential ATJ approach, I would argue, is a view that it is preferable for an IC to proceed cautiously, securing buy-in from key interlocutors, rather than adopt a more expansive jurisprudence that boldly establishes new legal principles at the risk of both noncompliance and member-state backlash.

Backlash: Recontracting is Real

This raises a third and final point about Alter and Helfer’s book, namely their newfound appreciation of the threat of member-state backlash against ICs. In Chapter 10 of the book, Helfer concedes that he and Slaughter did not, in 1997, envision the prospect of member governments rising up to attack the courts they had created (278). For her part, Alter had written as early as 2000 about the prospect of backlash against the ECJ from national courts, but as late as 2008 she insisted upon the “irrelevance of recontracting politics” by governments against ICs (48). In Transplanting International Courts, by contrast, both authors confront the new reality of member-state backlash. The past decade, they write, has witnessed a “slew of … deliberate and strategic challenges by political leaders to the formal powers and de facto authority of the courts and the judges who penned the offending decisions” (278). Even the largely deferential ATJ, they write, has prompted several defiant acts of noncompliance, and backlashes against other international courts have been far more dramatic.

Backlash is a minor theme in Transplanting International Courts, but takes center stage in Alter and Helfer’s research with James Gathii on backlash against three African regional courts, which combines the authors’ newfound focus on backlash with their longstanding liberal focus on supranational and subnational interlocutors. Each of Alter, Gathii and Helfer’s meticulously researched case studies begins with one or more dissatisfied member states attempting to use “extra-legal” pressure to short-circuit formal institutional protections so as to remove judges from office, reduce a court’s jurisdiction, or shut down the court entirely. In the face of these attacks, however, Alter, Gathii and Helfer offer a surprisingly “glass-half-full” narrative, in which backlash efforts are at least partially “derailed” by secretariats, civil-society groups, and sub-regional parliaments who “delay or thwart extra-legal strategies, buying time and creating opportunities for court supporters to mobilize” (295). In the case of the South African Development Community Tribunal, they concede, Zimbabwe’s backlash campaign was fully successful, resulting in the indefinite suspension of the Tribunal. The authors depict the other two cases, however, as more hopeful, demonstrating how the Kenyan campaign against the East African Court of Justice (EACJ), as well as Gambia’s efforts to discipline the ECOWAS Court, were blunted to some extent by supranational and subnational supporters.

There is, however, a strong case to be made for a more pessimistic interpretation of these events. Such an account would highlight the ability of dissatisfied member states to circumvent formal protections of international judicial independence, succeeding to varying extents in intimidating, constraining, and even eliminating ICs. Even the nominally mixed cases of the EACJ and ECOWAS are chilling, since the former saw its jurisdiction reduced and its rulings made appealable to a new and conservative appellate body, while the latter has been sent a strong signal of the limits of its independence. Just as importantly, the use of such strong-arm tactics against international courts is not restricted to the developing world, as we have seen in the Trump Administration’s hostage-taking approach to the WTO Appellate Body, which takes a page from Mugabe’s court-curbing playbook.

Ultimately, as with Alter and Helfer’s analysis of the ATJ, these events can be seen from a glass-half-empty or a glass-half-full perspective. The glass-half-empty perspective suggests that international courts are more vulnerable to member-state pressure than many of us had expected, and that we must avoid complacency about the very real prospect that states will continue to intimidate international courts, reduce their jurisdiction, and suspend or eliminate them in response to unwelcome decisions. The glass-half-full approach, by contrast, focuses on the more hopeful possibility that strategic international courts may make common cause with supranational and subnational actors who can not only nurture those courts in their infancy but also defend them when times get tough. Whether these efforts will suffice to protect international courts’ independence, jurisdiction, and existence in an age of backlash, however, remains to be seen.

Symposium: On International Courts in Developing Regions

by Alexandra Huneeus

[Alexandra Huneeus is a Professor of Law at the University of Wisconsin Law School.]

Perhaps the most powerful lesson of Transplanting International Courts is to beware our own parochialism. After all, the only thing new about the Andean Court of Justice (ATJ) when Karen Alter and Laurence Helfer first noticed it was that US-based scholars had begun to take note. The ATJ was created in 1984 and has had an active docket for decades. Its lack of visibility is due, in part, to its survival strategy: Alter and Helfer show that the ATJ does not strive to shine through activist rulings; rather, it is a quiescent court that competently applies the letter of the law case by case, particularly in the realm of intellectual property. But its low visibility is surely also due to a certain scholarly myopia towards things not from Europe or the United States, things not in English, things from poorer countries. As Helfer confesses, the ATJ was an active court when he co-authored his groundbreaking article on the effectiveness of international adjudication in 1997, but neither he nor his co-author, Anne-Marie Slaughter, were aware of its existence, “let alone that the tribunal had decided any cases” (p. 261).

Transplanting International Courts rights the record, placing the ATJ in its proper place in the pantheon of international courts. Because it sits in a restive corner of Latin America, and has done so for over 30 years, the ATJ proves that international courts can survive under dramatically different conditions than those found in Western Europe. The case serves as a test of many theories about court power developed in the context of Western Europe, theories which Alter and Helfer convincingly argue must now be narrowed or recast. For example, the European Court of Justice is unique not because of its relationship to national courts, as argued by Alter in her first book, but rather, she now writes, due to the ideologically driven jurist advocacy movement that championed European integration in the ECJ’s early years (Chapter 9). It is fascinating to watch these two scholars who have played a seminal role in founding the field of international courts revise their earlier theories in light of the ATJ’s unexpected existence and their rich data documenting its success. The result is a powerful contribution to the literature on international courts.

Although Alter and Helfer celebrate the ATJ as the third most active international court in the world and the most successful transplant of the European Court of Justice (ECJ), the book closes with a sober vision of the role of courts in the developing world: “The most that an international court can do, we argue, is to help states individually and collectively adhere to legal rules that they have imposed upon themselves (p. 282).” It is actually somewhat rare and very welcome to see judicial politics scholars embrace the judicial role of simply applying the law to a case. But this conclusion strikes me as too broad for two reasons.

First, there is another European-style judicial transplant in the region that has also been adjudicating cases for roughly the same thirty years, which has grown to have significant influence in at least two ATJ states (Colombia and Peru), all the while adopting a strategy and role almost diametrically opposed to those of the ATJ — the Inter-American Court of Human Rights, created by the Organization of American States in 1979 and having jurisdiction over 20 Latin American and Caribbean states.

Where the ATJ’s many cases each year are mostly “narrow, repetitive questions of IP law,” the Inter-American Court deals in a few, highly symbolic cases in which states are accused of human rights violations, and often of mass atrocities. Where the ATJ issues narrow rule-bound rulings, the Inter-American Court makes the most of its small docket by issuing expansive, innovative judgments. Where the ATJ declines to follow the European jurisprudence because it is too bold, the Inter-American Court declines to follow the European Court of Human Right’s jurisprudence because it is too timid. And where the ATJ enjoys a high judgment compliance rate, the Inter-American Court issues judgments with long lists of ambitious reparatory orders which all but ensure partial compliance at best (ordering states, for example, to amend their constitutions, reform their judicial system, or educate their police forces on CEDAW). Not surprisingly, the Inter-American Court’s high-profile strategy has costs: several states have withdrawn from the underlying treaty or otherwise tried to escape the Court’s authority. And yet the Court has survived, its judgments have real, measurable impact, and it has come to be viewed as a court of last resort on rights issues in many states.

In other words, the Inter-American Court seems to occupy a very different role than that which Alter and Helfer suggest is the only role available to courts in the developing world. It is true that the Inter-American Court at times helps states adhere to specific legal rules that they have imposed upon themselves. But the law can be indeterminate, and the Inter-American Court also has the role of giving content to, and at times providing a new understanding of, certain provisions of the American Convention on Human Rights. Put differently, the Inter-American Court provides a site in which the states and civil society can struggle over and articulate (and re-articulate) shared standards of moral achievement, understood as fundamental rights, in dialogue with national rights litigation. One might also note that the Inter-American Court had an additional role earlier in its trajectory, when its focus was responding to the atrocity crimes of the military dictatorships of the 1970s and 1980s: to build on the work of the Inter-American Commission in accompanying the victims of state repression and bringing their claims to public light.

Some of this may be changing. As the Inter-American Court further develops its ties to constitutional courts and lawyers in the region, it is likely to become a bit more constrained and legalistic. And as Alter and Helfer show in their excellent new chapters on the ATJ’s more recent struggles, the politics of the Andean states can at times thrust the ATJ into the political limelight despite itself. But the differences between the two courts’ trajectories thus far suggest that, even within a single region of the developing world, there may be different paths to success, and different kinds of success, for international courts.

The second aspect of Alter and Helfer’s conclusion that merits further thought is its emphasis on the development/developing divide. Juxtaposing the two pairs of courts — the ECJ/ECHR on the one hand, and the ATJ/Inter-American Court on the other – it is interesting to note that the variation in style and strategy does not seem to map onto the courts’ legal subject area (commerce versus human rights), but neither does it map onto a developing/developed state divide. It would be interesting to see Alter and Helfer explain with more specificity what, exactly, the developing/developed state distinction means and why it matters. The point is not only that developing states are active users of the World Trade Organization adjudication mechanism and of the International Court of Justice. It is also that we are in a time when the features once thought to distinguish Latin American states – including inequality and populist presidencies — are spreading to the Northwest quadrant of the world, and so the developing/developed state divide must be reconsidered. Critical development studies argue that variation on the measures thought to distinguish developing from developed states can be more significant within a single state than among states. Knowledge of and adherence to the rule of law, for example, varies by subnational sectors, an insight that resonates with Alter and Helfer’s discovery of an IP “island of effective adjudication.”

Looking forward, this book is brimming with insights that merit further study by international courts scholars (including, for example, empirical study of whether the Inter-American System has ever had a jurist advocacy network (p.260)). It seems equally if not more important, however, to put Transplanting International Courts into conversation with those who study comparative politics. Alter and Helfer’s finding that “ATJ rulings helped to inculcate rule-law values in the domestic IP agencies” (p.276), and even helped curb corrupt practices, seems particularly salient in the wake of the Odebrecht scandal (which has affected Colombia, Ecuador and Peru in particular). Their theories about the construction of a stable, rule-following realm in the heart of a volatile region should be read by the broad audience of scholars and policy-makers interested in rule of law and democracy in Latin America and beyond.

Introduction to Symposium on Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice

by Karen Alter and Larry Helfer

[Karen J. Alter is a Professor of Political Science and Law at Northwestern University and a Permanent Visiting Professor at iCourtsLaurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University, and Permanent Visiting Professor at iCourts.]

This Opinio Juris blog engages our findings about the Andean Tribunal of Justice, published in our book Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice (Oxford University Press, 2017). Our book is a deep exploration of a fairly obscure international court, which is illuminating because of the Andean Tribunal’s relative success and longevity despite the many challenges presented by the unstable political context in which it operates. We draw on the Andean experience to reflect on what we thought we knew about how international courts become effective and influential legal and political actors.

In 1979, Andean political leaders added an international court—the Andean Tribunal of Justice (ATJ or Tribunal)—to their struggling regional integration project to help improve respect for Andean legal rules. They turned for inspiration to the highly successful European Court of Justice (ECJ), copying that court’s design features and legal doctrines. Transplanting International Courts investigates the results of this decision, providing a deep, systematic study of the most active and successful of eleven regional courts modeled on the ECJ.

Our book investigates the ATJ’s evolution and impact using a wide range of empirical evidence. We coded every preliminary ruling from the Tribunal’s founding through 2014, reviewed noncompliance cases, analyzed the ATJ’s legal doctrines, interviewed more than forty stakeholders during five trips to the region, traced the professional backgrounds of Andean legal entrepreneurs, investigated legal networks, used process tracing to isolate the influence of key ATJ decisions, and compared the development of the ATJ and ECJ over a quarter century to understand how contextual factors shape judicial decision-making.

One of the book’s central findings is that the ATJ is effective by any plausible definition of the term, but primarily within the domain of intellectual property (IP) law—what we refer to as an “island of effective international adjudication.” The overwhelming majority of the ATJ preliminary rulings—more than 90%—relate to trademarks, patents, and other forms of IP. These rulings have shaped decision-making by domestic agencies, national judges, and private litigants. The Tribunal’s noncompliance judgments have also induced national governments to reverse domestic laws and policies that violate Andean IP rules.

The ATJ’s influence is more limited outside of the IP island, but when compared to other ECJ transplants, Andean judges have made a significant mark. The ATJ is the only ECJ transplant where all four types of legal procedures—preliminary ruling, noncompliance, omission, and nullification—have been utilized. By the end of 2014, the Tribunal had issued 114 preliminary rulings on regional legislation regulating tariffs, customs valuations, taxes, insurance, and agriculture; the Andean Secretariat and private litigants regularly raise noncompliance complaints concerning these and other non-IP issues; and states and private actors challenge the actions and omissions of Andean officials.

Unlike the ECJ, however, the ATJ is not an expansionist judicial lawmaker. The Tribunal lets the member states set the pace and scope of Andean integration and allows for the coexistence of national legislation and supranational authority, yet it does not shy away from condemning clear violations of Andean rules. This circumspect and formalist approach has enabled the ATJ to retain its fidelity to Andean law while building relationships with national administrative agencies, courts, and lawyers. But this approach also means that, unlike in Europe, Community law is not an engine of regional integration.

Transplanting International Courts updates and consolidates our decade-long study of the ATJ and the Andean legal system, allowing us to focus on the recent period of political turmoil in the Andes, as leftist-populist leaders in Venezuela, Bolivia, and Ecuador entrenched their power and challenged the Andean Community’s liberal free trade policies. Two of the book’s chapters investigate how the ATJ has dealt with fraught political controversies that divide the priorities and objectives of the member countries. Chapter 6, The Judicialization of Andean Politics: Cigarettes, Alcohol and Economic Hard Times, traces state and private litigation across multiple Andean legal procedures to reveal how the ATJ navigates these contentious cases and responds to the reality of its real but limited power. Chapter 7, The Authority of the Andean Tribunal of Justice in a Time of Regional Political Crisis, explains how, despite major regional turbulence—a term used by Ernst Haas to explain where European integration tends to falter—the ATJ’s caseload doubled, its IP rule of law island remained resilient, the Tribunal expanded its legal doctrines, and Ecuador’s populist President Correa modified his protectionist trade and monetary policies in response to ATJ litigation (while also working to subsume the Andean Community within a less legalized continent-wide integration regime (UNASUR)). These two chapters offer lessons for other international judges who seek to build a rule of law within inhospitable political environments.

Our in-depth exploration of the law and politics of the Andean legal system also provides an opportunity to revisit our earlier scholarship investigating the ECJ and the European Court of Human Rights. Chapter 9 expands upon Karen Alter’s previous work demonstrating that the ECJ benefitted in underappreciated ways from the support of jurist advocacy movements—movements that are absent or poorly organized in the Andes and elsewhere in the world. The book’s conclusion revisits Toward a Theory of Effective Supranational Adjudication, the influential 1997 article by Larry Helfer and Anne-Marie Slaughter, to consider the limited influence of international judges when backlash remains an endemic concern.

The longevity of the Andean Tribunal of Justice, despite the many challenges it has faced, offers useful guidance for other international courts in developing-country contexts. Moreover, given that the Andean Community and its institutions have weathered member state withdrawals, threats of exit, major economic and political crises, and the retrenchment of foundational laws and policies, the Andean experience also offers timely and important lessons for the challenges that Europe’s older and more established supranational institutions now confront.

We have invited four eminent scholars and jurists to comment on our book and its findings.

  • Alexandra Huneeus, Professor of Law at the University of Wisconsin, Madison, has written extensively on the influence of regional and international courts within Latin America. Reflecting on the role of the Inter-American Court of Justice, which operates in the same region as the ATJ, Huneeus reconsiders on our metrics for international court success and influence.
  • James Gathii, the Wing-Tat Lee Chair in International Law at Loyola University Chicago School of Law, is an expert on international economic law and on regional courts in Africa. Drawing on insights discussed TWAIL scholarship, Gathii also asks readers to think about the metrics for assessing international court success. Gathii brings into the conversation rulings by the East African Court of Justice, another international court operating in a developing country context. Gathii argues that scholars should not import Eurocentric assumptions, and thereby assume that mimicking European courts and achieving compliance are the measures of IC effectiveness or success.
  • Mark Pollack, Professor of Political Science and Law and Jean Monnet Chair at Temple University, is an expert on European legal and political integration. Pollack reflects on the political science project of studying international courts, and in particular our “liberal” approach to conceptualizing international court influence. Pollack extracts, yet questions, three generalizable lessons that one can make based on our examination of the ATJ.
  • Luis José Diez Canseco Núñez served as a judge on the Andean Tribunal from 2014-2017, and he features in our analysis of the role of jurist advocacy movements. He engages our work as a practitioner, discussing how the ATJ looks from his perspective.

We thank our contributors, whose prodding pushes all of us to move beyond current modes of conceptualizing and assessing the influence of international courts operating around the world. We learned a lot, and expect that opinio juris readers will as well, from the thoughtful reflections of our esteemed colleagues, who are complementary yet also quite critical of the approach and arguments we advance in this book. For us, this project was a way to move beyond our Eurocentrism. Huneeus, Gathii, Pollack and Núñez remind us that, given how Eurocentric the predominant theories are, we all have a way to go.

The Pardon of Fujimori: Amnesties and Remedies Before the Inter-American Court of Human Rights

by Carlos Lopez

[Carlos Lopez is a Senior Legal Adviser at the International Commission of Jurists.]

The “humanitarian pardon and grace” granted by Peruvian President Kuczynski to former President Fujimori on the eve of Christmas 2017 has spurred significant political and legal controversy in Peru and abroad. Predictably, the Presidential pardon and grace –a discretionary measure for the President under Peruvian Constitution of 1993- are being challenged before national courts and the Inter-American Court of Human Rights.

Alberto Fujimori presided over one of the most corrupt and abusive civil dictatorships of recent history in Latin America. Between 1992 and 2000 during a time of economic liberal reform in the country, Peru’s government forces defeated the armed insurgents of Shining Path using harsh anti-terrorism laws, faceless tribunals and curtailing due process and fair trial. (The Shining Path insurgents were themselves responsible for widespread atrocities.) The conflict caused more than 60,000 victims among cases of enforced disappearance, torture and extra-judicial execution by death squads. One such death squad, the Colina Group, was part of the intelligence apparatus that carried out executions for which Fujimori was found indirectly responsible and convicted in 2007. He was sentenced to a total of 25 years in prison (on counts of corruption and grave human rights violations). The pardon now granted to Fujimori releases him from prison, effectively limiting the sentence to 11 years.  But the most significant consequence is that the “grace” grants him immunity from prosecution in the future for other crimes for which he may be charged.

Legal challenges to pardon to Fujimori

The pardon and grace to Fujimori are challenged at two levels: before Peru’s National Criminal Chamber (a specialized High Court that deal with cases of serious human rights violations) and before the Inter-American Court of Human Rights (IACourt). But the proceedings before each tribunal are of distinct nature.  The National Criminal Chamber was asked to decide whether or not to apply the “humanitarian pardon and grace” to Fujimori in the context of ongoing proceedings against members of paramilitary Colina group accused of committing the massacre of several peasants in the locality of Pativilca, north of Lima, an incident for which Fujimori is also alleged to have an indirect responsibility. Under Peruvian law, the effects of the grace granted to Fujimori would extend to ongoing and future investigations and prosecutions, virtually granting Fujimori a personal amnesty and immunity from prosecution. If the National Chamber applies the presidential grace to the case, Fujimori would be excluded from the proceedings. But if the Chamber follows the existing IACourt jurisprudence, it would consider the grace measure without legal effect and not applicable to the case at issue. As expected, on 9 February 2018, the Criminal Chamber decided to set aside the controversial grace, making the measure inapplicable to the case at issue, and continue criminal proceedings against Fujimori and several others. The case is now under appeal to Peru’s Supreme Court.

The domestic legal battle has international ramifications reaching to the IACourt. The IACourt has recently convened a public hearing to monitor compliance with its previous judgments in the well-known cases of Barrios Altos and La Cantuta, both against Peru. At the hearing (2 February 2018), relatives of the victims and human rights organizations called on the IACourt to declare the pardon without legal effect and null and void. The Government of Peru claims the IACourt cannot do so without infringing national sovereignty. According to Kuczynski’s government, the Peruvian Constitution that allows presidential discretionary pardons should prevail. If anything the Court has to request the State to take corrective measures. Some governmental voices are already saying a decision by the IACourt declaring the pardon invalid will not be accepted by Peru.

Human rights organizations (Peruvian and international) have rushed to present their views in what is seen a crucial battle before the IACourt. The International Commission of Jurists together with other groups has argued in an Amicus Curiae brief that the use of pardons and grace as amnesty laws are incompatible with the international law obligations incumbent upon Peru, in particular its obligations to investigate and, when appropriate, prosecute and sanction those responsible for grave human rights violations.

Organizations have also argued that Peru failed in its obligation to ensure conformity of its national laws and regulations (such as the pardon and grace) with the American Convention of Human Rights. The resolution granting the pardon and grace to Fujimori was not taken on the basis of objective information and overlooked due process. Under the IACourt’s jurisprudence all national authorities (including the judiciary) have the obligation to conform their conduct to the requirements of the American Convention and to ensure they do a preliminary test to that effect (so called “control de convencionalidad”).

The prospects: what will the IACourt decide?

Part of the current controversy on the legality of the pardon to Fujimori relates to the kind of decision the IACourt might take.  The positions of the parties to the dispute differ sharply on this point. It should not be forgotten that the current proceedings before the IACourt correspond to phase of monitoring of the implementation of its previous judgments in the Barrios Altos and La Cantuta cases. Here, the IACourt is not exercising primary jurisdiction to decide whether a violation of the American Convention has occurred or not. But even at the stage of monitoring implementation, the IACourt may find that certain measures or conduct by the government are inconsistent with the obligation to implement the IACourt judgments in good faith and in accordance with international law.

Should the Court take a decision on the legality of Peru’s measure granting pardon and grace to Fujimori, it may have two alternatives: it may consider the Fujimori pardon/grace incompatible with international law and order Peru to take corrective measures and abrogate the pardon, or the Court itself may declare the pardon is a breach of international law and as such null and void? In this regard, commentators such as Gurmendi and Tafur have pointed out to the existence of two parallel trends in the jurisprudence of the IACourt which would support either line of action and be the source of certain confusion that needs clarification. But such view might be too hasty.

In its well-known judgment in Barrios Altos v. Peru, the IACourt held that “amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible” because they prevent the investigation and punishment of those responsible for serious human rights violations” (at 41). In a holding that was to become famous, the IACourt declared:

“44. Owing to the manifest incompatibility of self-amnesty laws and the American Convention on Human Rights, the said laws lack legal effect and may not continue to obstruct the investigation of the grounds on which this case is based or the identification and punishment of those responsible, nor can they have the same or a similar impact with regard to other cases that have occurred in Peru, where the rights established in the American Convention have been violated.” (emphasis added)

This decision declaring a domestic law without legal validity has been repeated in other judgments, such as Almonacid Arellano v Chile, where the IACourt held that Chilean Decree Law No. 2.191 [granting amnesty for crimes against humanity] does not have any legal effects” (at 119). This jurisprudence constitutes a trend that is expected to be followed in the case of the pardon to Fujimori. An alternative line of jurisprudence finds the IACourt not directly declaring the measures at issue without legal effect, but instead resorting to the more traditional formula of ordering the State to repeal the relevant legislation or measures that are incompatible with international obligations. Such a line was taken in Olmedo Bustos v Chile and the recent Fontevecchia v Argentina, in relation to freedom of expression.

Although both trends in the IACourt jurisprudence are manifest, there is no confusion or, even less, contradiction between the two. The Court has been consistent over time in declaring without legal effect, null and void, measures such as amnesties in cases of grave human rights violations “such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.” (Barrios Altos judgment, at 41).

For the IACourt, the gravity of the violations of the rights at issue (accepted as non derogable) is a determinant factor in tailoring its decision. Laws and other measures that breach international public policy are considered null and void, and without legal effect ab initio. But in all cases, the IACourt orders the State to adopt measures so as to wipe out the practical effects of the void legal measure in its internal order: these include reopening of court proceedings, conducting investigations. It will not be surprising if the IACourt declares the pardon to Fujimori similarly null and void and order Peru to implement the Court sentences in good faith by proceedings with ongoing investigations and prosecutions against Fujimori.

The Customary International Law of Jurisdiction in the Restatement (Fourth) of Foreign Relations Law

by William S. Dodge

[William S. Dodge is Martin Luther King, Jr. Professor of Law at the UC Davis School of Law. He currently serves as a co-reporter for the Restatement (Fourth) of Foreign Relations Law.]

In a recent post, Dean Austen Parrish took issue with some statements about the customary international law governing jurisdiction in the Restatement (Fourth) of Foreign Relations Law. The occasion for his comments was United States v. Microsoft, a case currently pending before the U.S. Supreme Court in which Dean Parrish has filed an amicus brief. I have given my thoughts on the case and on the amicus brief elsewhere and will not repeat them here. In this post, I seek to correct a few misimpressions about the Restatement (Fourth) and the customary international law governing jurisdiction.

First, it may be helpful to sketch briefly the process for producing the Restatement (Fourth). In 2012, the Council of the American Law Institute (ALI) authorized three projects—on treaties, jurisdiction, and state immunity—under the umbrella of the Restatement (Fourth). A team of reporters was assigned to each project. I was made a co-reporter for the jurisdiction project, along with Anthea Roberts and Paul Stephan.

The ALI process begins with a Preliminary Draft prepared by the reporters, which is discussed at a meeting with the project’s counselors, advisers, and members consultative group. Based on this feedback, the reporters prepare a Council Draft, which is discussed at a meeting of the ALI Council. Based on this further feedback, the reporters prepare a Tentative Draft for discussion with the ALI membership at its annual meeting. For the jurisdiction project, three tentative drafts, covering different topics, were approved by the membership and now represent the ALI’s official position. The reporters are currently in the process of combining all the tentative drafts for the three projects together into one volume, which (as indicated below) has resulted in renumbering many of the provisions. Final publication of the Restatement (Fourth) is expected later this year.

On questions of customary international law, the Restatement (Fourth) was blessed with a great deal of expertise from U.S. and foreign lawyers and scholars. Our counselors included three former Legal Advisers of the U.S. State Department, one former Legal Adviser to the U.K. Foreign and Commonwealth Office, and one Judge of the International Court of Justice. Our advisers included designated representatives from the State Department Legal Adviser’s Office. We also had the benefit of a separate international advisory panel of academics and lawyers from outside the United States. A full list of the counselors, advisers, foreign advisers, and members consultative group for the Restatement (Fourth) is here. Not all of these people will agree with every statement in the Restatement (Fourth). The point is that every question of customary international law addressed in the Restatement (Fourth) was vetted with a broad group of U.S. and foreign experts, and the statements about the customary international law of jurisdiction in the Restatement (Fourth) represent the best judgment of the ALI as to what that law is today.

The first misimpression to correct is Dean Parrish’s statement that “the Fourth Restatement does not purport to set out international law.” Quite the opposite is true. Sections 407-413 of the Restatement (Fourth) (Section 211-217 in Jurisdiction Tentative Draft No. 2) restate the customary international law governing jurisdiction to prescribe. Section 432 of the Restatement (Fourth) (Section 402 in Jurisdiction Tentative Draft No. 3) restates the customary international law governing jurisdiction to enforce. The Restatement (Fourth) does not have a corresponding section restating the customary international law on jurisdiction to adjudicate because, as the Introductory Note to Chapter 2 (Introductory Note, Part III, in Jurisdiction Tentative Draft No. 2) observes, “[w]ith the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” (The Restatement (Fourth) does have a chapter on state immunity, although its focus is U.S. domestic law under the Foreign Sovereign Immunities Act rather than customary international law.)

With respect to jurisdiction to prescribe, Section 407 states the basic rule: “Customary international law permits exercises of prescriptive jurisdiction if there is a genuine connection between the subject of the regulation and the state seeking to regulate.” Sections 408-413 set forth the most common bases establishing a genuine connection: territory, effects, active personality, passive personality, protection, and universal jurisdiction. These sections discuss foreign practice at length, citing the practice of more than 50 other countries. The specific bases for prescriptive jurisdiction set forth in the Restatement (Fourth) are largely the same as those found in Sections 402 and 404 of the Restatement (Third).

The Restatement (Fourth) does not continue the position of Restatement (Third) Section 403, which stated that customary international law requires an assessment of the reasonableness of exercising prescriptive jurisdiction in each case. As the reporters’ notes to Section 407 of the Restatement (Fourth) explain, “state practice does not support a requirement of case-by-case balancing to establish reasonableness as a matter of international law.” The Restatement (Fourth) does contain a provision on “Reasonableness in Interpretation”—Section 405 in the Restatement (Fourth) (Section 204 in Jurisdiction Tentative Draft No. 3). This is a domestic principle of statutory interpretation, like the presumption against extraterritoriality and the Charming Betsy canon, under which U.S. courts may “interpret[] a statute to include other comity limitations if doing so is consistent with the text, history, and purpose of the provision.”

With respect to jurisdiction to enforce, Section 432 states the traditional rule that enforcement jurisdiction is strictly territorial: “Under customary international law . . . a state may not exercise jurisdiction to enforce in the territory of another state without the consent of the other state.” To apply this rule, of course, one must determine where enforcement occurs in various situations. When a U.S. court requires a person in the United States to produce information located abroad, as in the Microsoft case for example, does the enforcement occur in the United States or abroad? As the reporters’ notes to Section 431 (dealing with U.S. practice with respect to jurisdiction to enforce) explains, U.S. court orders to produce information located abroad “have not provoked the protests from other states that might be expected if such orders constituted extraterritorial exercises of jurisdiction to enforce.” In the Microsoft case, the fact that none of the foreign governments filing amicus briefs—including Ireland—has characterized the warrant in question as an extraterritorial exercise of jurisdiction to enforce seems conclusive.

Dean Parrish directs most of his criticism at the Restatement (Fourth)’s statement that, “[w]ith the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” Dean Parrish’s says this is inconsistent with the Restatement (Third), but in fact the Restatement (Third)’s position was more ambiguous than is commonly appreciated. Its Introductory Note for the chapter on jurisdiction to adjudicate, the Restatement (Third) admitted “it is not always clear whether the principles governing jurisdiction to adjudicate are applied as requirements of public international law or as principles of national law.” It characterized the provisions that followed as “international rules and guidelines.” The substance of Section 421 strongly resembled the U.S. domestic law of personal jurisdiction as of 1986, and the reporters’ notes relied heavily on U.S. practice with some reference to U.K. law and the Brussels Regulation. There was no analysis of opinio juris—whether any of the practice was followed out of a sense of international legal obligation.

An honest look at state practice and opinio juris today reveals no limitations on jurisdiction to adjudicate outside the area of immunity. Some bases for adjudicative jurisdiction are certainly considered exorbitant—tag jurisdiction in the United States or jurisdiction based on the nationality of the plaintiff in France, for examples—but these bases are not considered to violate customary international law. The clearest evidence of this is the Brussels I Regulation (Recast) in the European Union, which prohibits the use of exorbitant bases against defendants from other EU member states, but expressly permits the use of exorbitant bases against defendants from non-EU member states and requires EU member states to enforce judgments against such defendants resting on such bases. If states do not refrain from exercising jurisdiction on exorbitant bases of jurisdiction out of a sense of legal obligation, there can be no rule of customary international law prohibiting their use.

The Restatement (Fourth) of Foreign Relations Law also discusses many rules of U.S. domestic law addressing different aspects of jurisdiction, including the presumption against extraterritoriality, personal jurisdiction, forum non conveniens, the act of state doctrine, the doctrine of foreign state compulsion, and the recognition of foreign judgments. (For an overview written for a private international law audience, see here.) The Restatement (Fourth) also tries to distinguish clearly between rules of domestic law and rules of customary international law, and to state rules of customary international law only when they are supported by state practice and opinio juris. But Restatement (Fourth) does address the customary international law of jurisdiction, and it draws on a deep well of expertise in doing so.

International Law vs. Donald Trump: A Reply

by Harold Hongju Koh

[Harold Hongju Koh is Sterling Professor of International Law at Yale Law School. This post is a response to the recent Trump Administration and International Law Symposium hosted on Opinio Juris.]

Can international law save itself from Donald Trump?

Since Election Night 2016, that question has haunted me across many issue areas. Professor Craig Martin and the Washburn Law Journal editors generously invited me to offer an initial answer in their recently published symposium issue in an article entitled “The Trump Administration and International Law.” As I prepare my book-length answer for publication this fall by Oxford University Press, I am deeply grateful to my friends who took the time to make incisive contributions both to the initial symposium—Margaret McGuinness, Clare Frances Moran, and David Sloss—and this virtual one—Laura Dickinson, Bill Dodge, Kevin Jon Heller, and Frederic Sourgens. I especially thank Craig Martin for moderating both symposia and for his astute opening and closing essays, and to the editors of Opinio Juris for hosting this important on-line discussion.

A full-fledged response to these various thoughtful comments will have to await my book. But broadly speaking, I am gratified that all five commentators see the lens of transnational legal process as a useful way to unpack how international law responded to the new Trump Administration in 2017. The commentators seem to agree that transnational actors outside the U.S. government have responded to various Trump initiatives by employing the “outside strategy” of provoking interactions—e.g., the lawsuits in the Travel Ban case–to generate legal interpretations (often by courts), that government actors have been forced to internalize, thereby promoting the “stickiness: of international law. They also acknowledge that, even in the face of intense political pressure, governmental actors have furthered that stickiness by using an “inside strategy” of bureaucratic resistance to adhere to previously embedded, internalized norms of international law. At a strategic level, the commentators seem to agree that a strategy of “international law as smart power”–connecting with like-minded countries through engagement around values, translating new norms of international behavior from extant norms of international law to address novel situations and technologies (e.g., drones, cyberconflict), and leveraging that law-based cooperation into enduring diplomatic solutions will far more likely strengthen international law in the long run than the Trump Administration’s repeated resigning from global leadership through disengagement, focus on national interests, and going it alone.

At the same time, each commentator registers a thoughtful caution against painting too rosy a picture going forward for transnational legal process. Professor Dodge wisely notes that litigation against the United States Government is always a double-edged sword. Litigation may harden the executive’s resolve to defend and continue negative behavior and can trigger normatively undesirable litigation positions, an argument that Rebecca Ingber persuasively laid out in her important explanation of how “interpretation catalysts” can entrench defensive anti-international law executive branch decisions. But Dodge’s argument does not so much cut against invoking transnational legal process during the Trump Administration, as it calls for smart litigators to be thoughtful about their litigation strategy. On some issues—for example, when the new Administration issues a thinly disguised Muslim Ban one week in—Trump’s subordinates threw down the gauntlet by publicly declaring that the President’s authority “may not be questioned.” Under such circumstances, thoughtful resistance through litigation becomes both a challenge and the best available option. Rule of law litigators have little choice but to generate interactions and interpretations in the smartest possible way: to choose the right cases and the most advantageous fora, making arguments sensitive to the range of positions the U.S. Government has taken in the past in an effort to advance better interpretations of international law. Whatever the ultimate outcome, such litigation serves an important signaling and public education function. The Travel Ban case, for example, has signaled government litigators that there are limits to the arguments they can make and reminded beleaguered public servants that the legal interpretations they were fighting for within the bureaucracy resonate with the courts and the public at large. Especially when combined with street demonstrations, injunctions remind policymakers that they cannot unilaterally change the status quo while the whole world—including courts –is watching. Perhaps most important, prudent persistent litigation reminds Muslim-American communities that they are not alone and teaches the public that resistance is not futile.

Professors Dickinson and Sourgens usefully ask how law and policy differ as tools to promote the stickiness of internalized international norms. Professor Dickinson uses the 2013 Presidential Policy Guidance on Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities to enumerate the advantages and disadvantages of adopting certain norms as voluntary government policy, as opposed to conceding that they are legally required. She correctly notes that there “may be certain path dependencies that cause policies to be ‘sticky’ once adopted, [but] there is little doubt that Executive Branch policies usually do not bind future administrations in the same way as Executive Branch determinations about the applicability of international legal rules.” Yet elsewhere in her post, she offers what may be the best response to her own concern: that one reason not to focus overly “on the law/policy distinction [is] because … norms articulated as a policy matter impact legal rulings and over time may ‘harden’ into law. Indeed, such seepage seems to be at the core of transnational legal process.”

This is precisely what has happened, for example, with a little-noticed March 2011 Obama Administration announcement of

support for two important components of the international legal framework that covers armed conflicts: Additional Protocol II and Article 75 of Additional Protocol I to the 1949 Geneva Conventions. Additional Protocol II, which contains detailed humane treatment standards and fair trial guarantees that apply in the context of non-international armed conflicts, was originally submitted to the Senate for approval by President Reagan in 1987. The Administration urges the Senate to act as soon as practicable on this Protocol, to which 165 States are a party. An extensive interagency review concluded that United States military practice is already consistent with the Protocol’s provisions. Joining the treaty would not only assist us in continuing to exercise leadership in the international community in developing the law of armed conflict, but would also allow us to reaffirm our commitment to humane treatment in, and compliance with legal standards for, the conduct of armed conflict. Article 75 of Additional Protocol I, which sets forth fundamental guarantees for persons in the hands of opposing forces in an international armed conflict, is similarly important to the international legal framework. Although the Administration continues to have significant concerns with Additional Protocol I, Article 75 is a provision of the treaty that is consistent with our current policies and practice and is one that the United States has historically supported. Our adherence to these principles is also an important safeguard against the mistreatment of captured U.S. military personnel. The U.S. Government will therefore choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well (emphasis added). 

While in 2011, the Obama Administration could not bring itself to say outright that these provisions were customary international law, as time has passed, these convictions have hardened from policy into law, advancing the U.S. government’s lengthy struggle to decide whether and to what extent it is bound –not just as a matter of policy, but of law–to comply with the two additional protocols to the 1949 Geneva Conventions.

One of my core claims is that it is both unrealistic and counterproductive artificially to split off legal from policy and political constraints when discussing the impact of transnational legal process on government behavior. In real life, these three kinds of constraints are usually intertwined and are often used in combination to check action destructive of legal stability. Although international lawyers often say, “let’s carefully distinguish between law and policy,” in real life, it is rarely so clear-cut. Law, policy, and politics pose interconnected constraints in foreign affairs decisionmaking. Some policy options may not be available as a matter of law. Some lawful options may not be wise as a matter of policy (what we used to call “lawful, but awful.”) Some options might be desirable as a matter of both law and policy, but when tried, just prove not to be politically available (as they famously say in Hamilton, “you don’t have the votes”).

My lecture’s detailed discussion of Trump’s difficulties in extricating the United States from the Paris Climate Accord and the Iran Nuclear Deal vividly illustrates the unexpected ways in which these legal, policy and political constraints have interacted together to create a web of guardrails obstructing Trump’s threatened disengagements. For example, in the Paris Accords, Trump is for now legally sticking to the 4-year term of withdrawal set forth in the treaty, while also facing a set of policy and political constraints that have blunted his goal of exit. This bundle of constraints has led to a broader phenomenon that my book calls “resigning without leaving:” the de facto outcome of all of Trump’s blustering has not been exit from existing international regimes, but the United States’ staying in as an announced lame duck, with predictably reduced influence. The wide-ranging counter-strategy of damage control across many issue areas has created a de facto path of least resistance: a default whereby the United States under Trump rarely leaves, but rather, stays in and underperforms within existing international regimes. While that is a suboptimal state of affairs, at least it has the virtue of being curable, at a future time when Trump and his party no longer control both the White House and both houses of Congress.

Professor Sourgens usefully points to two broader dangers of Trump. The first is that his relentless disdain for international law may outlast “stickiness,” by “ungluing” the elements of the administrative state that maintain obedience to international rules. Second, viewed in the broader light of Brexit and the global resurgence of Orwellian authoritarianism, Trump is plainly not so much a one-off as a symptom of a much broader counter-assault on the postwar Kantian global order that can flow through the same channels of transnational legal process that foster compliance: enabling a “transnational transference of lawlessness, or photonegative of …transnational legal process” My article tried to capture Sourgens’ insights in adopting the analogy of Muhammad Ali’s “rope-a-dope” as a counter-strategy to George Foreman’s offensive pummeling. In the game of “rope-a-dope,” both sides pay a fearful cost, and even while the nominal winner, Ali, may win the fight, in the process he may endure the kind of battering that weakens his fabric and leaves him unglued in the long run.

While these concerns are real and serious, as yet, I hope they are premature. The “tally so far,” chronicled in my article, suggest that transnational process is working so far, although harder times clearly lie ahead. Sourgens correctly notes that “the great ungluing precisely seeks to impeach the reflex to coordinate domestic and international legal processes.” But that is precisely why our counterstrategy should be to strengthen that connection: other American climate actors—states and localities, private companies and NGOs, the bureaucracy—should make clear to the international actors seeking to preserve the Paris accords that Donald Trump does not own the process or speak entirely for America. Norm-internalization goes all the way down. Street-level demonstrators in San Francisco or farmers in Vermont well understand the negative impact that global climate change is having on the level of their local coastline or the local temperature in the winter-time. Trump’s anti-globalist rhetoric may seek to sever the link between the domestic and the international, but in a modern age of globalization, the interactive link between domestic and global law is just as deeply intertwined as the link between local cause and global effect. The United States can no more resign from today’s global system than an individual can resign from the human race. Because transnational legal process is much bigger than Trump, he does not and cannot own it; we all do.

My good friend Kevin Heller makes two basic objections, which are part of a broader left critique of my approach. The first is that I am too praising of Obama. Like all administrations, the Obama Administration was far from perfect, and my goal has never been to whitewash its blemishes. My point is not that Obama always succeeded –and I agree with Kevin that the lack of accountability for torture was a glaring, continuing failure–but that Obama articulated a better general strategy of “international law as smart power:” when in doubt, engage-translate-leverage, rather than follow Trump’s destructive approach of “disengage-cite national interests only-and go it alone.”

Professor Heller secondly objects at length to what he calls my support for the legality of “unilateral humanitarian intervention;” when in fact I have argued that humanitarian intervention is not always unlawful under all circumstances under both domestic and international law, particularly when UN Security Council resolution has been persistently blocked by twelve Russian vetoes (the “never/never rule”). We need not recapitulate this lengthy debate, as I have already fully laid out my position here and here. Suffice it to say that I have not broadly endorsed unilateral humanitarian intervention as a matter of either law or policy. To the contrary, my claim has been that, twenty years after Kosovo, it is long past time for the United States government lawyers and legal academics to engage with their foreign counterparts—particularly in United Nations and nations like the United Kingdom, France, Belgium and Denmark– to determine whether and under what narrow circumstances limited intervention for humanitarian purposes may be lawful. After Kosovo, the international legal community went some distance to define a legal standard to govern the lawfulness of Responsibility to Protect or R2P. I simply argue that it is time to finish the job.

Because Kevin offers no alternative to the notion that humanitarian intervention is always illegal or to the status quo that I have called the “never-never rule,” he offers no suggestion as for how we should stop the continuing horrible slaughter in Syria, which is only intensifying as ISIL retreats. Moving away from his original absolutist reading, Kevin notes that “[a]lthough as a lawyer I would feel better about humanitarian intervention in Syria if it was authorised by the General Assembly, I am skeptical that such intervention would actually work.” On both scores, I feel the opposite. As recent UNGA votes on various electoral matters have shown, as a practical matter, the Chinese and the Russians have shown far more capacity to influence a General Assembly resolution with non-humanitarian based threats and financial inducements than do NATO countries that over the years have shown far more respect for the use of force provisions of the U.N. Charter.  So a reliance on the UNGA or the Uniting for Peace Resolution would make more Russian and Chinese-led “humanitarian interventions” far more likely than ones measured by the carefully defined rule that I set forth in my earlier writings on this subject.  And while Kevin questions whether “such intervention would actually work,” he does not fully address the likelihood that the threat of humanitarian intervention could “work” as a critical element finally to galvanize an enduring diplomatic solution.

As someone who lived through the Balkans, I learned long ago that a Richard Holbrooke-ian smart power exercise of diplomacy backed by force can sometimes get warring factions to the table, as it did at Dayton even to stop the most intractable conflict. To be clear: I have not advocated use of force in Syria for its own sake, or to engage in broader regime change; I have simply argued that international lawyers should not take the smart power policy option of diplomacy backed by force off the table by artificially claiming that a collective exercise of the Responsibility to Protect is always legally unavailable. It is a fiction to assert an absolutist norm against intervention as a prevailing governing norm, at a time when all the world seems to have intervened in Syria. It is even worse when sticking with that anti-interventionist legal fiction becomes a de facto pro-slaughter position as a matter of policy. In the end, my debate with the admirable Professor Heller shows once again why it is a mistake to try to think (and teach) international law analysis solely within its own bubble, entirely distinct from policy.  In the international realm, law and policy are inevitably and inextricably intertwined. Most transnational players use policy arguments to try to change international law, or make international law claims to force governments to change their policies.   Academics will miss half the picture if they constantly insist on artificially separating the two.

Finally, Craig Martin’s closing piece correctly notes the limits of transnational legal process: “interpretation and internalization will only result in compliance with international law if the interpretation itself is at least within a range of reasonable interpretations consistent with established principles of international law.” Professor Martin expresses some surprise at what he calls “the move from the descriptive to the normative;” he had always thought of transnational legal process as a descriptive theory, not a call to arms or a prescriptive counter-strategy. But in fact, the normative component has been a key part of transnational legal process theory from the beginning. My original lecture sketching the theory 22 years ago closed by saying:

“It is sometimes said that someone who, by acquiring medical training, comes to understand the human body acquires as well a moral duty not just to observe disease, but to try to cure it. In the same way, I would argue, a lawyer who acquires knowledge of the body politic acquires a duty not simply to observe transnational legal process, but to try to influence it. (emphasis in original) (207)”

Some might chide me for proposing an “elite project” of transnational lawyering in response to a populist rejection of just such elite policymaking.  To be clear, I do not mean to be offering a complete account of the forms of political response required to deal with Trump and the new authoritarian populists.  Nothing I say should be read to suggest that concerned citizens around the world should not be in the streets demonstrating or that grassroots efforts should not be trying to win back the state houses and institutions of formal government power.  Lawyers are never going to relieve us of the burdens of politics, but they certainly can—and I believe should—constantly create acts of political pressure through law that promote the rule of law through training and techniques that simply are not available to others.

If believing this, as Professor Sourgens charges, makes me “a perennial optimist,” I humbly plead guilty. But I don’t simply bet “that the stickiness of transnational legal process is stronger than the force seeking to unglue it,” as Sourgens says. Instead, I believe that our job as lawyers is to make sure that it is stronger. To be clear, as a predictive matter, I am not claiming that Trump will inevitably be checked by some kind of self-correcting synopticon of distributed checks and balances. Rather, as a normative matter, I think that committed international lawyers have to fight to preserve the imperfect world we have inherited. As Dr. King memorably put it, “the arc of the moral universe is long, but it bends toward justice.” But it certainly does not bend by itself. If Trump and those of his ilk are pushing hard to bend that arc in one direction, isn’t it the job of all of us who care about international law to push it even harder in the other?

Did the Trump Administration’s Jerusalem Declaration Violate International Law?

by David Hughes

[David Hughes is a Grotius Research Scholar at the University of Michigan, Law School and a PhD Candidate at Osgoode Hall Law School in Toronto.]

On 6 December, President Trump signed a Proclamation recognizing Jerusalem as Israel’s capital and ordering the relocation of the American Embassy from Tel Aviv. The announcement reflects the long-standing will of Congress. It is consistent with past electoral promises. It is, perhaps, the Trump Administration’s first major policy statement to gain the Democratic leadership’s approval.

Despite constant assurances, past executive branches have withheld formal recognition and deferred the Embassy’s relocation. The Trump Administration’s Jerusalem pronouncement disrupts this orthodoxy. It contradicts the longstanding position of the international community, who since the termination of the British Mandate of Palestine, have proposed internationalization, provided de facto recognition, and prioritized negotiations to settle – but never confer – Jerusalem’s status.

The Administration’s declaration was denounced by an array of actors. A consistent refrain emerged. The actions of the United States violated international law. Palestinian Authority President Mahmoud Abbas stated that the decision was a “flagrant violation.” The Arab League noted the danger of such legal disregard. France’s Ambassador to the UN called upon the Americans to “clarify the compatibility of [the Jerusalem declaration] with [the] common legal base on which all peace efforts are built.”

The Presidential Proclamation, however, ensured legal latitude. The edict claimed that “the United States continues to take no position on any final status issues… [and that] the specific boundaries of Israeli sovereignty in Jerusalem are subject to final status negotiations between the parties.”

In late January 2018, President Trump met with Israeli Prime Minister Benjamin Netanyahu in Davos. The President declared, “they never got past Jerusalem. We took it off the table. We don’t have to talk about it anymore.” The Administration’s assertions that the Proclamation was consistent with support for a negotiated agreement appeared doubtful. The legal inoculation weakened. Again, the Palestinian leadership reiterated calls of legal disregard. The General Assembly opposed the Trump Administration’s policy shift. Assertions that the Jerusalem declaration violates international law, however, failed to provide legal reasoning. This post briefly explores the legal questions raised by the Administration’s Jerusalem declaration from the perspective of non-recognition obligations.

The duty of non-recognition

The duty not to recognize situations created by certain unlawful acts is an established tenet of international law. It is the necessary corollary of the principle ex injuria non oritur. Article 41(2) of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) requires that, “no State shall recognize as lawful a situation created by a serious breach [of a peremptory norm of general international law].” The duty of non-recognition is thus qualified. It is understood to apply in response to a serious breach of a jus cogens norm and is only applicable when the serious breach facilitates a legal claim of status or entitlement by the violating State. As Martin Dawidowicz explains, this creates a situation that “all States are obligated not to recognize as lawful.” Most often, Dawidowicz recognizes, the ILC Commentaries and state practice link the triggering breach to “territorial acquisitions brought about or maintained by the threat or use of force (p.678).”

Article 41(2)’s broad formulation has caused scholars to question whether “customary international law knows of a general duty of non-recognition of all situations created by a serious breach of jus cogens (p.102).” Though several query the scope and content of the obligation when applied to certain jus cogens breaches, both the ICJ in its Wall Opinion (para.87) and the ILC contend (p.114) that the duty not to recognize forceful territorial acquisitions reflects customary international law. Stefan Talman notes, beginning with the 1949 Draft Declaration on the Rights and Duties of States, the obligation to deny recognition of territory acquired through force possesses a long lineage (p.102-103). This has developed through consistent state practice and is reiterated within many international legal instruments.

Prominently, the 1970 Friendly Relations Declaration (FRD) stated that, “no territorial acquisition resulting from the threat or use of force shall be recognized as legal.” The ICL Commentaries on the Draft Articles on State Responsibility note the unequivocal nature of this obligation that derived from U.S. Secretary of State Henry Stimson’s response to the 1932 Manchurian crisis and has been recognized by the ICJ in its Nicaragua decision as possessing unanimous state approval (para.188).

What is the applicable legal standard?

The Jerusalem declaration raises several questions concerning the non-recognition obligation. James Crawford explains that “when the illegality invoked is substantial, and in particular when it involves a peremptory norm of international law, States have a duty under customary international law not to recognize the act as legal. The norm in question must either be one of the limited number of peremptory norms or…a substantive rule of general international law, so that the illegality is one that involves the international community as a whole and not just particular States (p.160).”

This presents three questions that bear upon the legal consequences of the Trump Proclamation: (i) Is the Israeli claim to Jerusalem facilitated by an unlawful act? (ii) If so, was this situation created by a serious jus cogens breach? (iii) And did the Trump Administration’s declaration constitute recognition?

Is the Israeli claim to Jerusalem facilitated by an unlawful act?

Determining whether a non-recognition obligation has arisen is interwoven with the contestations of Jerusalem’s legal status that began during the Mandate-era and continue to this day. In 1947, Palestine’s proposed partition (Part III) sought to establish Jerusalem as a corpus separatum under UN administration. The plan was accepted by Palestine’s Jewish community but dismissed by the Arab delegations. Upon the establishment of Israeli statehood and the immediate declaration of war by five neighbouring states, Jerusalem was divided – East and West – between Jordan and the nascent State of Israel. A new map was drawn along the 1949 Armistice border. This increased Israel’s territorial allotment and became the starting point for efforts to secure a negotiated agreement with the Palestinian population. Though the international community formally favoured internationalization, Israel began relocating governmental institutions to the City. In December 1949, Israel declared Jerusalem as its capital.

A fragile status quo was disrupted in 1967 when, following the Six Day war, Israel gained control of Jerusalem’s eastern sector (along with the rest of the West Bank, the Gaza Strip, the Golan Heights, and the Sinai Peninsula). Immediately, Israel expanded Jerusalem’s municipal boundaries and applied its jurisdiction throughout the newly defined City. The General Assembly declared these initiatives invalid and called upon Israel to rescind measures intended to alter Jerusalem’s status. Despite proclaiming Jerusalem’s liberation and reunification, Israeli diplomats insisted that the imposed measures did not constitute annexation.

In 1980, the Knesset passed a Basic Law declaring “Jerusalem, complete and united, the capital of Israel.” Though the legislation did not impose any practical changes, it formally acknowledged a reality that began upon Israel’s de facto annexation of East Jerusalem in 1967. Firm rebukes followed. The General Assembly called upon Israel “to withdraw completely and unconditionally from all the Palestinian and other Arab territories occupied since June 1967, including Jerusalem.” Security Council Resolution 478 declared that Israel’s claim violated international law. This prompted a process of collective non-recognition. Continuing, the Security Council called upon Member States “not to recognize the ‘basic law’ and other such actions by Israel that, as a result of this law, seek to alter the character and status of Jerusalem.” It required that “those States that have established diplomatic missions at Jerusalem to withdraw such missions…” Existing embassies left the City. Despite de facto acceptance of Israel’s claim to West Jerusalem and the separate legal treatment of the City’s two sectors, the Security Council’s call to withhold recognition received – even amongst Israel’s staunchest allies – near universal adherence.

Does this act constitute a situation created by a serious jus cogens breach?

Security Council Resolution 478 is premised upon the norm that “the acquisition of territory by force is inadmissible.” This, John Dugard recognizes, provides the principal reason justifying the non-recognition of Israel’s claim to East Jerusalem (p.113). As noted, the non-recognition obligation is contingent upon the commission of a serious breach of a peremptory norm. While the prohibition of aggression constitutes (p.85) a jus cogens norm, Israel maintains that Jerusalem’s reunification resulted from an “unprovoked Arab attack.” Despite the merits of Israel’s defensive claims, the FRD clarifies that the inadmissibility of territory acquired by force is absolute and not contingent upon assessments of jus ad bellum.

Further, Israel’s annexation of East Jerusalem may be construed separately from the underlying use of force that led Israel to assume control of the City’s eastern sector. Israel has refrained from asserting sovereign claim over the West Bank and Gaza which have instead been subject to prolonged occupation. The subsequent control of East Jerusalem – realized through annexation and governed in accordance with Israeli law – may be understood as an independent act of aggression.

Annexation is defined as “the forcible acquisition of territory by one state at the expense of another State.” The ICRC notes that “annexation amounts to an act of aggression, forbidden by international law.” This is confirmed by the General Assembly’s Resolution on the Definition of Aggression which qualifies an act of aggression as, inter alia, “any annexation by the use of force of the territory of another State or part thereof (Art. 3).”

This evokes questions regarding Palestinian statehood and whether Israeli actions – either in 1967 or in 1980 – constitute the forceful annexation of “another State or part thereof.” It is worth noting, however, that the ILC Commentaries hold that the non-recognition obligation “applies to situations created by…[the] attempted acquisition of sovereignty over territory through the denial of the right of self-determination of peoples.” This builds upon the FRD which holds that “every state has the duty to refrain from any forcible action which deprives peoples…of their right to self-determination and freedom and independence.” This principle, coupled with the longstanding prohibition on the forceful acquisition of territory, motivated the ICJ to hold in its Wall Opinion that “that all States are under an obligation not to recognize the illegal situation [arising from the construction of the separation barrier] in the Occupied Palestinian Territory, including in and around East Jerusalem (paras. 87-88, 146).”

Did the Trump Administration’s declaration constitute recognition?

The Trump Administration’s Proclamation did not reference East Jerusalem directly (either in recognition of Israel’s sovereign claim or in support of Palestinian aspirations). Though the announcement is prejudicial towards Israeli interests, initially there appeared sufficient ambiguity to fall short of formally recognizing Israel’s claim to East Jerusalem.

The ARSIWA Commentaries, however, state that Article 41(2) not only extends to formal recognition but prohibits acts that would imply recognition (p.114). In its Namibia Opinion, the ICJ held that non-recognition compels states to abstain from establishing diplomatic missions in the unlawfully acquired territory. States, the Court continued, have a positive duty to make clear [to the South African authorities] that “the maintenance of diplomatic or consular relations…does not imply any recognition of its authority [with regard to Namibia] (para. 123).”

Such implied recognition appears throughout the Proclamation and in the President’s subsequent statements. The Presidential order to relocate the Embassy appealed to the Jerusalem Embassy Act of 1995. The Act did not omit the declarative language that the Trump Administration purportedly sought to avoid. It noted that the Six Day war marked Jerusalem’s reunification and stated that the City served as Israel’s undivided capital. The Trump Administration Proclamation begins by referencing this Congressional acknowledgement and the Senate’s unanimous reaffirmation on the occasion of “the 50th anniversary of the reunification of Jerusalem.” Addressing the General Assembly, U.S. Ambassador Nikki Haley, justified the Administration’s Jerusalem declaration as in accordance with the Embassy Act.

The Proclamation notes that U.S. policy decisions are grounded in “principled realism.” The recognition of Jerusalem as Israel’s capital is presented as plain fact. Jerusalem, the President noted, “is the seat of the modern Israeli government.  It is the home of the Israeli parliament, the Knesset, as well as the Israeli Supreme Court.  It is the location of the official residence of the Prime Minister and the President.  It is the headquarters of many government ministries.” While this is of course accurate, several governmental institutions are located in the City’s eastern sector including the Ministry of Justice and the National Headquarters of the Israel Police.

Rationalizations that cite the location of national institutions and that are grounded in the Embassy Act allude to a conception of Jerusalem that aligns with Israel’s post-1967 claim to a united City. The President’s comments in Davos – that his Proclamation took Jerusalem off the table – moves from the contention that the City’s status remains subject to negotiation and toward recognition of a situation created through the forceful acquisition of territory.

Finally, the Administration’s determination that “the United States will relocate our Embassy…from Tel Aviv to Jerusalem” further implies recognition of Israel’s claim to the united City. Associating the embassy’s location with recognition of Jerusalem’s status had initially motivated the United States to post its Ambassador away from the contested City. A 1958 despatch from the U.S. Counsel General in Jerusalem noted, “many other countries mark their respect for the internationalization resolutions by establishing embassies in Tel Aviv thus avoiding recognition of Jerusalem as the capital of Israel and, by implication, as Israel’s de facto sovereign territory.”

Though the international legal treatment of Jerusalem has moved from proposed internationalization and towards a vision determined through negotiation and shared amongst two states, the City’s status remains fiercely contested. The Trump Administration’s pronouncement raises important questions regarding non-recognition requirements and appears incompatible with the policy objectives that the obligation conveys and which the international community has pursued with near unanimity.

The European Convention on Human Rights: the Draft Copenhagen Declaration and the Threat to the European Court

by Roisin Pillay

[Róisín Pillay is Director of the International Commission of Jurists (ICJ) Europe Programme.] 

The European Court of Human Rights is once more facing a political challenge to its role, in proposals for a new political declaration put forward by the Danish Presidency of the Council of Europe. 
That the Court’s extraordinary success in advancing human rights protection in Europe provokes the dissent of certain governments is nothing new. Neither is this the first time that the eight year long reform process – instigated by the Interlaken Declaration of 2010  in order to deal with the overwhelming caseload of the Court – has been the forum for political resistance to the Court’s perceived intrusion into national affairs.  The reform process has constantly navigated delicate questions of the respective powers of the Court and the Council of Europe Member States.   
Notably, the UK government’s initial proposals for the 2012 Brighton Declaration posed serious threats to the independence and role of the Court, and to the right of individuals to petition it. Ultimately, under pressure from some States as well as civil society, the most damaging of these proposals were not pursued. However they did result in, amongst other things, the enshrining of a reference to the principles of subsidiarity and the “margin of appreciation” that states are considered to enjoy in protecting certain of the Convention rights, in the preamble to Protocol 15  to the Convention. Since then, the Brussels Declaration of 2015 commendably re-directed attention to the problem that is the real root of the Convention system’s struggles: failings in effective national implementation of the Convention rights, which leave victims of human rights violations with no other recourse but to take their case to Strasbourg.
The Danish Government, which took on the rotating Presidency of the Council of Europe in 2017, has now proposed a new political declaration  on the Convention system, to be agreed at a high-level conference of Council of Europe Member States in Copenhagen in April. A draft of the Copenhagen Declaration was published in February. The text, while including some welcome re-affirmations of the need for enhanced national implementation measures and better execution of Court judgments, as well as strengthened selection processes for judges of the Court, also contains proposals that carry significant risks for the independence and role of the Court, and for the consistent protection of Convention rights across the Council of Europe region.  To assure the continued credibility and health of the Convention system, it needs to be significantly amended.
The draft Declaration has already faced sharp criticism, including from a coalition of  international NGOs (including the ICJ) which made detailed proposals for amendments; from Danish NGOs and from academic commentators.  The Court itself has responded cautiously refraining from strong criticism, but drawing attention to the governing framework for the role of the Court under the ECHR and to principles of judicial independence which it notes must be respected by the Declaration.

Three main elements in the Declaration are of particular concern.

First, the draft Declaration emphasises the need for “better balance” between the respective roles of the Court and Member States, based on “shared responsibility” for the protection of the Convention rights (para.11).  The Convention certainly envisages complementary roles and responsibilities for national authorities and the Court within the Convention system: it is the obligation of Member States to respect and protect the Convention rights (Article 1 ECHR) and the role of the Court to supervise this obligation. The Court’s role is clearly set out in Article 19 of the Convention, as “to ensure the observance of the engagements undertaken” by States under the Convention.  Article 32 establishes that the Court’s jurisdiction in doing so extends to “all matters concerning the interpretation and application” of the Convention rights.  The much contested doctrine of the “margin of appreciation” developed in the Court’s jurisprudence applied by the Court in respect of certain rights or aspects of rights only, does not in any way displace or diminish this jurisdiction.

The draft Declaration however, seems to allow for more qualified role, based on an unduly wide interpretation of principles of subsidiarity and the margin of appreciation. The draft emphasises that the Convention rights should not only be secured at national level, but also “determined” there (para.10) and that rights should be protected “predominantly at national level by State authorities in accordance with their constitutional traditions and in light of national circumstances,”  a proposition that appears to leave room for varying standards in the protection of the Convention rights, contrary to the principle of universality. Startlingly, given the only too evident, continuing occurrence of sometimes grave and systematic human rights violations within the Council of Europe region, the draft Declaration confidently asserts that this new emphasis on national adjudication is a “natural step in the evolution of the Convention system” given that the Convention is now well embedded in national legal systems (para.10).

The second aspect of the draft Declaration worthy of particular scrutiny is proposals addressing the “subsidiary rule of the Court”. The principle of the subsidiary nature of the Convention system is long established in the jurisprudence of the Court. It recognises that national authorities are best placed to evaluate local needs and conditions in the implementation of human rights, but also that such implementation must always be subject to the Court’s review. The draft Declaration posits a notion of subsidiarity that appears to restrict the Court’s role, however, stating (without qualification as to the nature of the rights or aspects of rights concerned) that: “the Court … should not take on the role of States Parties whose responsibility it is to ensure that Convention rights and freedoms are respected and protected at national level.” (para.22) Singling out asylum and migration cases, it asserts that where national procedures in these cases operate fairly and in respect for human rights, the court should only intervene “in the most exceptional circumstances”. (para.26) In the context of a political declaration, such language appears to question the scope of the Court’s role under Article 19 of the Convention.  It is all the more concerning because it is followed by direct calls on the Court to apply more “robustly” the principles of subsidiarity and the margin of appreciation.  These are principles of judicial interpretation, whose application should be a matter for the Court alone; in seeking to direct the Court as to their nature and scope, the draft Declaration fundamentally misconstrues the role of the judiciary under the rule of law.

Finally, the most disturbing passages of the draft Declaration are those that promote the idea of a “dialogue” between Member States and the Court. The draft declaration proposes “an ongoing constructive dialogue between States Parties and the Court on their respective roles in applying and developing the Convention” (para.31) and “an ongoing dialogue in which states and their populations are actively involved” (para.32).  Such dialogue would “give a clearer picture of the general views and positions of governments and other stakeholders, thereby solving some of the challenges of developing the Convention over time [and…] anchor the development of human rights more solidly in European democracies.” Although the draft also stipulates that such dialogue should take place “with respect for the independence of the Court and the binding character of its judgments”, this qualification rings hollow against the background of the proposals made; the risk that that they could facilitate inappropriate political pressure on the Court regarding specific cases, principles or standards, is clear, and is difficult to avoid.  

Of course, the Convention system already allows space for the views of Member States on regional human rights standards to be expressed – a “dialogue” of sorts – within the bounds of constitutionalism. First, Member States can continuously shape and develop Council of Europe human rights standards through standard setting in the Committee of Ministers.  In individual cases before the Court, they also have wide powers to put forward their views through third party interventions. “Dialogue” between governments and an independent court outside of these spheres is however no more appropriate than it would be within a national system.   The court’s proper interlocutors in any exchange of views between the national and regional levels are national courts, with which it has already established fruitful dialogues.

It is disappointing to see basic principles of the rule of law such as the independence of the judiciary being called into question within a regional human rights system designed precisely to defend such standards – and which has been so effective in upholding these standards in the region.  It is a cause for continuing concern that regional human rights systems – not only the European Convention system but also notably the Inter-American Court and Commission – increasingly face such challenges arising from the hyper-nationalist politics of their Member States.  

The draft of the Declaration is of course still in its early stages and it is to be hoped that the Member States will heed the warning voices and substantially amend the Declaration.  How should they transform it? The European Convention system undoubtedly needs the political support that a high level political declaration could bring.  First and foremost, it needs a Declaration that would contain clear, specific and practical commitments from the Member States on national implementation and on execution of judgements (drawing on the language in the Brussels declaration). This, combined with better national processes for the often complex exercises involved in executing European Court judgments, would considerably lessen the caseload of the Court.

Second, the Declaration should provide the elements the court needs to be effective in exercising its supervisory role: strong political re-affirmation of support for its role and independence; commitments for sufficient additional resources to deal with its caseload effectively, and improved judicial selection procedures that will ensure that the best candidates can be appointed to the Court and can carry forward its vital work.  It is this last point, as ICJ and OSJI have argued in a recent report on selection of judges for regional human rights courts, can truly ensure that future of the system is strengthened from within. 

These issues are already addressed by the Copenhagen Declaration – they should be placed at its heart, and the text that threatens the independence and role of the Court should be discarded.  As negotiations on the Declaration continue, there is still time for it to make a positive contribution to the future of the Convention system.

The Impact of Unpaid Internships at the ICC on the Development and Legitimacy of the ICC

by Karl Kemp

[Karl Kemp is a freelance South African journalist whose work has appeared, inter alia, in VICE and Rolling Stone magazine.]

The controversy and angst engendered by the subject of unpaid internships is nothing new to my generation. In 2015, an UN intern in Geneva was found sleeping in a tent next to the city’s eponymous lake, unable to afford housing, having lied on his application form regarding the fact that he had sufficient means to support him during the program. The world’s paid-internship advocacy groups have come into ever-sharper focus since, as UN interns around the globe staged protests and walkouts. International organizations, and the UN in particular, have become notorious for their lack of paid internship and entry-level positions.

As I write, myself and dozens of my fellow LL.M public international law graduates from the University of Amsterdam class of 2017 are embroiled in a seemingly futile struggle to break into a subsection of this world – that of international criminal justice. This problem is patent and pressing in the UN system generally, and yet it has particular bearing upon the institutions of international criminal law, and especially the under-fire ICC.

Though the Hague-based court and standard-bearer for international criminal justice has been facing an onslaught of think-pieces and media glamorizing regarding its alleged ‘racial bias’ since time immemorial, there are other, more tangible and less clickbait-worthy issues that needs be solved. Many of my former classmates have attempted to survive on a shoestring budget working internships before relenting and turning to the lucrative corporate private international law world in Amsterdam. Others take low-paid positions at academic research institutions or manage social media accounts for legal think-tanks in order to ‘get a foot in the door’. Whilst admirable, and of course serving a vital part of legal development, this imbalanced state of affairs serves to keep potentially brilliant lawyers from the judiciary and further adds to a field of professional commentators rather than practitioners.

The question of unpaid internships is not a purely moral or ethical one. Quite clearly, there are budget constraints and other factors that the general public are not privy to which influence the ICC’s spending priorities. Rather, the problem is that unpaid internships have a real and tangible impact on the work of the ICC and the development of international criminal law generally. The institution should prioritise a sustainable policy of centralized training in order to avoid a crisis of legitimacy. Should a crisis of legitimacy arise, the moral aspect of the debate will come into play regardless of the court’s best intentions.

Of course, it would be absurd to suggest that a lack of a salaried staff of interns is the root cause of the ICC’s woes, but it does represent a useful symbolic representation of a more abstract issue that touches at the roots of the ICC’s legal culture – that of a lack of a sustainable, future-orientated approach to the persons that will eventually people its halls and be tasked with delivering the aforementioned international criminal justice, and the effect this has on the court’s overall trajectory.

The link between inefficiency and unpaid internships may be extrapolated as follows: The ICC’s work, and that of its forebears, is often accused of being hampered by a clashing of legal cultures and an unsettled legal practice engendered by the attempted fusion of continental and common law procedures. It has been argued by scholars that this approach leads to inefficiency and a lowering of fair-trial standards.

Specifically, Jackson and Brunger note that

“the process of harmonization has developed in a pragmatic manner on the basis of those procedures that seemed most accessible to hand and has resulted in a procedural convergence of largely ‘adversarial’ structures. Yet such a convergence…was achieved without a shared consensus as to how these structures were to be utilized for the purposes of doing international justice. This absence of consensus created a vacuum for an inevitable fragmentation of practice.”

As a standard-bearing court, these kinds of issues leave the ICC more vulnerable to external criticism, and rightly so. Any globalized institution that acts outside national sovereignty should be held to the utmost standards of fairness and legitimacy. This means that efficient, fair and transparent procedures at the ICC are of paramount importance. The work of the ICC must be the benchmark standard for international criminal justice and as such any missteps are detrimental to perceptions of legitimacy – and hence key to the project of international justice

Currently, the ICC more resembles an ad hoc body of lawyers with already settled ideas of what legal practice entail, which then necessitates an overly flexible and inefficient system to compensate. For example, the abstract system of free proof evidence, in which evidence is freely admitted and weighed in totality at the end of proceedings, has come under fire by scholars like Peter Murphy, who accuse it of placing the accused in a precarious position regarding their trial rights by creating ‘evidential debris’. He notes that “in addition to making trials much longer and more complex than they need be, such evidential debris poisons the record and ultimately makes it more difficult for judges to assess the weight of the evidence and arrive at the truth”. Scholars have further questioned issues such as the role of the judge in proceedings, whether rules of evidence should be applied, and what role witness statements should play. These are all sharply distinguished in the various legal traditions, and it is unsurprising that lawyers trained in one or the other have difficulty accepting and putting into practice that with which they are not familiar.

These ingrained approaches, continental and common and all the various substrata of them, are baggage brought with lawyers from domestic jurisdictions, and that this has carried on happening despite the ICC now being operative for a generation, may be partly ascribed to the policy of unpaid internships and related matters pertaining to a failure to invest in young lawyers. The combined practice of unpaid internships and a lack of centralized, specialized legal training forces aspirant lawyers and advocates like myself and many of those in my former classes to train at domestic levels (if we have not given up on ICL entirely) in hopes of coming back to the ICC with sufficient experience to gain a paid position – and hence reinforces the paradigm of clashing legal cultures, and hence contributes to the aforementioned unsettled legal practice and inefficiency of procedure. And of course, it is those from developing countries who labour most under the living costs of The Hague, (consistently ranked among the most expensive cities in Europe) – those that the work of international courts most affect, and who have most of a stake in the success of the court.

Given the uniquely limited range of entry-level positions and the internships that take their place in such a system, these few opportunities simply must be made as accessible as possible to as many aspiring criminal lawyers as possible. Paying interns and centralizing and prioritizing training and practical education from the ground up should thus be a core component of a new strategy to address inefficiencies. It would go some ways to ensure that international criminal lawyers are exactly that – not criminal lawyers who are forced to adapt to a system which does not have a jury, or rules of evidence admission, or does have a complete dossier approach, or does allow hearsay, or any other example from the wide range of clashes at the ICC.

Obviously, paying interns will not resolve the issue entirely. There is no international bar exam, and domestic qualifications will remain necessary for the foreseeable future should young lawyers wish to eventually appear in court. But attracting young persons to a secure financial working environment will allow for a focusing of effort and ideas; interns that will learn the workings of the ICC and international criminal law before they are influenced by domestic systems – lawyers whose foundations are laid in the field, upon which to build, rather than the other way around. The distinction is fundamentally important, and should serve to guide the ICC in developing a workable strategy.

It would appear that few career paths are more difficult to navigate, more frustrating to tread, more confusing to reach the top of, than international criminal law. Young aspirant international criminal lawyers need a measure of reassurance that the field is developing and welcoming to those who wish to practice, as opposed to comment or proselytize. We cannot all be academics and scholars; a horde of know-better’s pressganging a small body of litigators, prosecutors and defence counsels. The ICC simply has to broaden its approach or we will wallow in the politics we so desperately need to be divorced from, risking being known as a profession of chatter rather than action.

Case selection controversy may eventually be resolved as it is not a constitutive element of the ICC in that it does not affect its structure or function. The same cannot be said of the bare-bones composition of the court from the ground- up – and by prioritising legal training and reforming a vision for the future of ICL, the court would do better in ensuring long-term sustainability. Paying its interns would be a huge step in that direction.

Kenyan Appeals Court Strongly Affirms That al-Bashir Cannot Claim Immunity As a Defense Against the ICC’s Arrest Warrants

by Tim Fish Hodgson

[Tim Fish Hodgson is a Legal Adviser for the International Commission of Jurists in Johannesburg, South Africa.]

A Kenyan Court of Appeal decision handed down last week has, once again, reaffirmed the Kenyan government’s international obligation to arrest Sudanese President Omar al-Bashir should he ever return to Kenya. The Court concluded “the Government of Kenya by inviting al Bashir to Kenya and failing to arrest him acted not only with complete impunity but also in violation of its international obligations.”

The African Union and some individual States such as South Africa, Uganda and Kenya appear to have serious concerns relating to what they perceive the conflicts between their obligations to arrest al-Bashir under the Rome Statue of the ICC and their obligation to respect his diplomatic immunity as a Head of State. This apparent conflict is clearly expressed by both the African Union’s ‘Withdrawal Strategy Document’ and the draft International Crimes Bill introduced by the Minister of Justice to South African Parliament. But the greatest testament to this discomfort is these and other states repeated failures to arrest al-Bashir despite their international legal obligations and pressure from local, regional and international human rights defenders.

The Kenyan Appeal Court recognized the “rare geopolitical predicament” faced by the Kenyan government in balancing its “focal role” in Sudan and “remaining true the African Union resolution not to cooperate with the [ICC]” with its obligations in terms of the international criminal law which is has domesticated in its own International Crimes Act.

Nevertheless, grounding its judgment in the historical foundations of international criminal law, the Court quotes with approval the Nuremberg Tribunal’s observation that “perpetrators cannot shelter themselves behind their official positions in order to be freed from punishment in appropriate proceedings”. The Court notes that when a state commits acts which violate ius cogens norms it “waives any rights to immunity” and concludes that, similarly, “we have no doubt that an exception to immunity exists in cases where the individual is responsible for crimes against humanity”. This, it reasons is because “acts amounting to international crimes of individuals cannot be considered legitimate performance of official functions of State” capable of attracting immunity in the first place.

In taking this approach the Kenyan Court of Appeal deftly acknowledges that despite the potential political conflicts that there is no real legal conflict between provisions on the Rome Statute with respect to immunity. This same approach was supported by the International Commission of Jurist’s submission to South African Parliament signed by six former Constitutional Court Justices and Navi Pillay the former United Nations High Commissioner for Human Rights. In a judgment that has received praise from international law experts John Dugard and Guénaël Mettraux no less, the Supreme Court of Appeal of South Africa too concurred with this approach, noting that allowing immunity to prevent arrest in such situations “would create an intolerable anomaly”.

Highlighting the irony that Kenya’s government disregard of its international obligations in inviting al-Bashir to the inauguration of Kenya’s progressive Constitution, the Court also notes that the government’s actions violate a specific provision of the Kenyan Constitution itself. Article 143(4) of the Constitution reads “[t]he immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity”.

Despite these categorical statements of Kenya’s legal obligations to arrest al-Bashir pursuant to the Kenyan Constitution, the International Crimes Act and the Rome Statute of the ICC, the Court overturned the provisional arrest warrant for al-Bashir issued by the High Court on the ground the requisite urgency no longer existed at the time the order was issued.

This, it reasoned, is because section 131(1)(c) of Kenya’s International Crimes Act explicitly permits the issuing of a provisional warrant only if “it is necessary or desirable for an arrest warrant to be issued urgently”.

This aspect of the Court’s judgment, which is inconsistent with the Rome Statute, strongly implies that future applications relating to al-Bashir’s arrest would need to be heard and determined urgently before or during a visit to the country. This despite the Court’s own observations that the Kenyan government remains bound by its international obligation to cooperate with the International Criminal Court by executing warrants the ICC had issued when al-Bashir’s visit in 2010.

Bolstering the possibility of the urgent issue of a provisional arrest warrant in a Kenyan High Court, however, the Court’s decision affirms that human rights organizations such as the Kenyan Section of the International Commission of Jurists have legal standing to approach the High Court requesting the issue of a provisional arrest warrant. This will mean that, as with litigation initiated by the Southern Africa Litigation Centre in South Africa, the Kenyan government’s own continued indifference or deliberate resistance to its international obligations, would not prevent al-Bashir’s arrest should he return to the country.

The judgment of the Kenyan Court of Appeal is of regional and international significance in the face of increasing threats of collective withdrawal of African countries from the ICC. Most particularly, after failing to arrest al-Bashir on a visit to South Africa in 2015, the South African government appears to be charging ahead with its intention to withdraw from the ICC by proposing the enactment of woefully inadequate domestic legislation.

As a decisive statement by an African court this judgment will be useful for human rights defenders, lawyers and judges in South Africa who are consistently accused of lacking regional legitimacy by the government in their attempts to ensure that al-Bashir is arrested and prevent South Africa’s withdrawal from the ICC. In the South African context, it remains to be seen whether newly appointed President Cyril Ramaphosa may change the South African government’s headstrong tune in the face of considerable, consistent and widespread criticism.

Finally, to some the Kenyan Appeal Court’s decision to invalidate the provisional arrest warrant for al-Bashir may appear to provide legitimacy to the Kenyan governments action. Properly read, this is perhaps merely politically astute exercise of its powers and is clearly overshadowed by the Court’s decisive condemnations of the government’s intransigence and strong findings which make absolutely clear that the Kenyan government is obliged to cooperate in al-Bashir’s arrest should he ever return to Kenya.

In terms of 163(4) of the Kenyan Constitution decisions of the Appeal Court may be appealed to the Supreme Court of Kenya if it can be shown that the matter involves the interpretation or application the Constitution or if it is decided that it is a matter of “general public importance”.

Note to Col. Spath: Don’t Worry, Be Happy

by Gabor Rona

[Gabor Rona is a Visiting Professor of Law at Cardozo Law School.]

Just when we thought the Guantanamo Military Commissions could not get any more dysfunctional, this happened: defense lawyers quit the proceedings in the U.S.S. Cole bombing case. Their boss, Marine Brigadier General John Baker supported the move, and for his trouble, was held in contempt, ordered to pay a fine, and was confined to quarters. The Military Commissions’ “Convening Authority,” Harvey Rishikoff, overturned the sentence, but not the contempt ruling. For his trouble, Rishikoff was then fired by Secretary of Defense Mattis, albeit for other possible reasons that have not been made public.

The brick that broke the kangaroo’s back seems to defense counsels’ belief that their private and privileged communications with clients were in fact being monitored by the government.

Air Force Colonel Vance Spath, the man in robes* sitting behind the bench at the Guantanamo military commission’s U.S.S. Cole bombing case is at wit’s end:

“I’m not ordering the Third Reich to engage in genocide. This isn’t My Lai.’ All he was doing was telling the lawyers to listen to him and get back in court, he said. ‘Those are the extent of my orders. Not war crimes, people.”

So reports Amy Davidson Sorkin in the New Yorker.

Col. Spath is wrong, of course. While defense counsel have not directly alleged so in connection with their withdrawal, the military commissions ARE a war crime, just not in the U.S.A.

Note that Common Article 3 of the Geneva Conventions, to which every country including the U.S. is a party, prohibits trials that fail, in the somewhat archaic language of 1949, to provide “judicial guarantees recognized as indispensable by civilized peoples.” Those judicial guarantees are reflected in both human rights law binding on the U.S. (articles 9 and 14 of the International Covenant on Civil and Political Rights) and the law of armed conflict (Article 75 of the Geneva Conventions’ Additional Protocol I. The U.S. is not a party to the Additional Protocol, but has acknowledged that Article 75 is binding customary law in international armed conflict. The U.S. does not acknowledge the same for non-international armed conflict, but the similarity of the judicial guarantee provisions of human rights law, applicable in non-international armed conflict, and Article 75, applicable in international armed conflict, make that stance untenable. See more on the customary status of Article 75 in all armed conflicts here and here.)

The ways in which the Guantanamo military commissions, as part of the Guantanamo detention regime, fail to respect requisite judicial guarantees are well known:

  • Government eavesdropping on attorney-client communications.
  • Denial of speedy trial. The Cole bombing occurred in October 2000. The defendant, Abd al Rahim al-Nashiri, was captured in November, 2002.
  • Denial of right to “confront” (cross-examine) witnesses. This is due to the general admissibility of hearsay, something only exceptionally permitted in U.S. courts.
  • Possible admission of evidence gained through torture. While the military commissions claim to prohibit the use of torture-based evidence, the admission of hearsay and the failure to exclude all statements of the accused resulting from interrogation after torture (e.g., by so-called “clean teams” of interrogators) contradicts the prohibition.
  • Denial of public trial. The public cannot access Guantanamo. Video and audio feeds of the proceedings are on tape delay, permitting government censors to prohibit dissemination of embarrassing evidence, such as that of the defendant’s torture.
  • A corrupt plea-bargaining process. In a normal criminal court, if the accused rejects a plea-bargain offer, he or she goes to trial. If found not-guilty, he or she is free. In Guantanamo, plea-bargains are inherently coercive, since a not-guilty verdict at trial does not guarantee release. It has been said that the only way for military commission defendants to leave Guantanamo is to plead guilty.

Interestingly, all violations of Common Article 3 used to be war crimes under U.S. law. But the War Crimes Act of 1996 was re-written in 2006 to criminalize only certain parts of Common Article 3, rather than all of it. What was left out of the new law? You guessed it, conducting trials that fail to provide “judicial guarantees recognized as indispensable by civilized peoples.” And when did this happen? You guessed it, as part of legislation for the Guantanamo military commissions. The drafters of the new War Crimes Act knew exactly what they were doing, even if most members of Congress didn’t. Why, if they believed that the military commissions were on solid international law and constitutional ground, did they weaken the War Crimes Act this very specific way?

More generally, Col. Spath complained of defense counsel that:

“They don’t follow orders; they don’t follow direction; they don’t obey commission regulations, or rules, or subpoenas, as we saw’ . . . They had exhibited ‘lawlessness’ and ‘contemptuous behavior’; they had ‘scoffed at my authority.”

I have some sympathy for Col. Spath. If he doesn’t know that his military commissions are illegitimate it’s understandable that he’s offended by the behavior of defense counsel.

Another of his complaints recounted in the New Yorker is that defense lawyers wear informal attire in military commission sessions. I’m reminded of the Chicago 7 trial of Vietnam War protesters following the police riots during the 1968 Democratic Convention. A grumpy Judge Julius Hoffman tried in vain to maintain courtroom decorum. But the Hippie, Yippee and Black Panther defendants understood that the only effective way to approach the highly politicized trial was to contest its legitimacy through acts of civil disobedience in the courtroom. One day, one of the defendants, Abbie Hoffman, showed up in black robes!

When defense counsel in the military commissions show up in informal dress, they are, it seems to me, exhibiting the tame military version of Abbie Hoffman and Bobby Seale’s protests in 1968 Chicago. From their sartorial choices to their decision to withdraw from the case, their behavior is not only within an honorable American tradition of challenge to structural injustice, but is also rational, consistent, and indeed, necessary, to the vindication of constitutional and international human rights and law of war rules applicable to the United States.

What’s more important than what binds the Chicago 7 defendants and the Guantanamo defense lawyers is what separates them: the Chicago 7 were being tried in a real court and were under no legal obligation to protest their trial.

The “new and improved” War Crimes Act of 2006 ends with the observation that the crimes listed in the law do not define the full scope of U.S. obligations under Common Article 3 of the Geneva Conventions. In other words, the U.S., and therefore, its military personnel, are still prohibited by international law from operating unfair trials, even though the failure to do so is no longer a war crime. Rather than dissing Colonel Spath, the defense lawyers are doing him a favor by bringing these proceedings to a halt.

*No personal disrespect meant, but I can’t call him “judge.” Military commissions are not courts. The “courtroom” is not a courtroom. The “judge” is not a judge. This is clear to those who understand the pedigree of military commissions. The Supreme Court has recognized that military commissions are procedures “born of military necessity.” Historically, they have been established in war zones and situations of occupation, where normal judicial mechanisms and procedures are not operable. (See also, Ex Parte Milligan.) That cannot be said of the Guantanamo military commissions, which were set up in full view of our well-oiled federal court system, precisely to avoid application of judicial guarantees required in our constitutional courts. The Guantanamo military commissions have nothing to do with military necessity. For that reason alone, they are illegitimate.