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Stewart Mini-Symposium: The Ambitious Past of Corporate Regulation

by Samuel Moyn

[Samuel Moyn is professor of law and history at Harvard University. He is on Twitter at @peiresc.]

During the absorbing litigation that led to the death of Alien Tort Statute litigation a couple of years ago, one of the most fascinating moments occurred late, and it has not been mentioned since.

In the Second Circuit phase of Kiobel v. Royal Dutch Petroleum, Judge José Cabranes had contended that the International Military Tribunal at Nuremberg proved there was no norm in customary international law of corporate civil liability. If so, he had asked, how could he find for the plaintiffs? In response, a bevy of renowned historians filed an amicus brief on appeal to the United States Supreme Court, contending that the reason Judge Cabranes had failed to find civil liability was because the Allies had been willing to destroy the corporations that participated in Nazi evil. The greater included the lesser: if they could go that far, would they really have rejected civil liability for corporate atrocities? Then another group of historians, including Jonathan Bush, filed an amicus brief not so ardently focused on serving the human rights movement (though not opposing it either). No longer indentured to the instrumental if understandable project of reading the past for present ends, these historians revealed that our ancestors were more ambitious than we are.

In their treatment of corporations, Bush and his colleagues said, the Allies hadn’t really been interested in atrocities anyway, or merely aimed at the low bar of sanctioning them. Rather, Nuremberg lawyers had been New Dealers; they had thought a lot about corporations, especially in the antitrust context; and it was this thinking that motivated them to break up (not destroy) I.G. Farben and take the other steps they did. More generally, an attitude of politically organizing business properly to avoid aggressive war mostly prevailed, not atrocity consciousness for the sake of victims seeking compensation. It was one of those things that seemed self-evident as soon as the historians said it, even if the insight got lost in the shuffle of the litigation, with its necessarily opportunistic attitude toward the past. Yet the prospect that opened in the midst of the litigation wasn’t merely self-evident, it was exciting. In the old days, corporations were regulated in the name of a theory of the healthy role they could and must play in a democracy. They were not simply unbound — as they have been since the conservative legal movement set the terms of corporate law nationally and internationally — and then at most taxed after the fact when they went awry.

Granted, the corpse of ATS may twitch for a long time and – who knows? – may one day find itself resurrected under different political circumstances. It is to his great credit, however, that James G. Stewart has turned away from searching frantically for signs of life in the fallen statute, in order to explore other fruitful approaches. Anyway, how much good did the ATS do, even before it was cut down? (Full disclosure: I have been flamed on this blog simply for raising this question, as if the burden weren’t on advocates of the ATS strategy to prove how much difference it has made, and to consider it in relation to other possible political and legal strategies.)

I won’t comment much on Stewart’s alternative, corporate criminal liability, in part because his other respondents know a lot more about the details. His reading of the tea leaves of the Argor-Heraeus case seems speculative but impressive, and his assessment of the doctrinal possibilities of criminal liability relative to the ATS strategy is interesting. As Stewart points out, a civil liability strategy merely taxing corporations (especially when the tax is simply passed on to their consumers) looks insufficient if it doesn’t provide the social condemnation law secures through criminal opprobrium. Stewart might even be right that if we have to choose, the criminal strategy is normatively superior. Of course, in an ideal world, it would be better to have both, since a now potentially lost civil liability in theory should exist: victims may need and deserve the monetary compensation too. (more…)

Mini-Symposium: James Stewart’s The Turn to Corporate Criminal Liability for International Crimes–Transcending the Alien Tort Statute

by Jessica Dorsey

This week we will host a mini-symposium on James G. Stewart’s latest article, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute. James has been an Assistant Professor at the Faculty of Law at Allard Hall, University of British Columbia, where he as been since 2009. Previously he was an Associate-in-Law at Columbia Law School in New York. He has also been an Appeals Counsel with the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia and has also worked for the Legal Division of the International Committee of the Red Cross and the Office of the Prosecutor of the International Criminal Tribunal for Rwanda. James primarily works on the relationship between atrocity, commerce, and international criminal justice and has published extensively on these subjects.

Between today and Wednesday, Samuel Moyn (Harvard University), Steven Ratner (University of Michigan) and Beth Stephens (Rutgers) will comment on the article article and the author will respond.

It is our pleasure to welcome these scholars to Opinio Juris this week and we look forward to thoughtful comments and questions from our readership as well.

What Makes (International) Law Law? Liam Murphy

by Robert Howse

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris. His first post can be found here; his second, here and his third here.]

Today at NYU law we are having a panel discussion, and celebration, of my colleague Liam Murphy’s recent book, What Makes Law Law? (I’ll be racing down from Fordham University, where I’m talking about my own book, Leo Strauss Man of Peace). Liam’s work is important for international legal scholars, because-despite many good answers-the field has been haunted by crude positivist doubts as to whether international law is really law at all, or, if it is, its character as legality really matters to real world outcomes (as opposed to its sometimes asserted nature as political rhetoric or moralizing). Usually, the doubts related to enforcement-can international law really make a state, or indeed anyone, do something that they don’t want, or need, to do for other reasons?

It is revealing, and perhaps provocative statement in relation to those crude positivist views, that the chapter of Liam’s book that bears the title of the book is in fact a discussion of “law beyond the state”. Liam begins from the much neglected short chapter on international law in Hart’s The Concept of Law, where Hart actually uses international law as an example for the proposition that centralized enforcement and interpretation are not essential elements of a legal system. What is essential is a certain level of systemic integration and coherence, and here Liam faces head on the so-called “fragmentation” of international law. He writes: “At the normative level, the question is whether there remains a coherent overall normative structure to international law that can accommodate “the diversification and expansion” of international law and provide legal grounds to resolve conflicts.” At the risk of some oversimplification, and skipping the rich texture of the analysis, in short, Liam’s answer is: maybe. He points, for instance, to the systemic integration function of the rules in the Vienna Convention on the Law of Treaties. I would add that both the activity of the ILC as well, at a more basic level, the articulation of the sources of international law in Article 38 of ICJ Statute, perform such a function. Liam cites some of my work with Ruti Teitel on these issues (“Beyond Compliance”). In another piece, “Cross-Judging“, Ruti and I try to show how different tribunals in different fields of international law increasingly speak to each other, directly or indirectly, disagreeing sometimes, but presupposing common ground about what is an international legal argument or what counts as international legal discourse. Indeed, even if one goes back to Thucydides, it is fairly clear there to the relevant actors, ambassadors, generals etc. where an international legal argument is being made vs a general moral argument or a power-political claim, or appeal to interests.

As for enforcement, Liam rightly notes that the issue is not the actual level of enforcement, but whether the norms of international law are the kind of norms that one thinks can justifycoercion, or are appropriate for coercive sanctions. This is Kant’s point in distinguishing the realm of “right” from that of “virtue”. This is an important distinction, and it is crucial to be clear on it, as the skeptical scholarship of theorists like Posner and Goldsmith tends to obscure it. Since we can never know whether an individual, much less a collective such as a state, is acting purely from considerations of legality alone (again Kant), it is absurd to test whether international law is law, by asking for proof that international legality has caused a state to behave in a manner that it would not have behaved in, from other considerations or motives. This is the kind of test that international law skeptics like, because international legality is bound to fail it. But that’s the case for all legal norms.

Not just the chapter on law beyond the state but the book as a whole is a commendable read for international jurists.

The Breakthrough in WTO Talks and the Trade Facilitation Agreement (TFA)-Far from Meaningless

by Robert Howse

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris. His first post can be found here and his second, here.]

At International Economic Law and Policy Blog, where I’m a regular, I’ve been blogging for a while about the impasse in WTO Doha round negotiations and how to break through it. See here and here India has learned from the way developed countries operated in the previous Uruguay Round of negotiations, linking different issue areas or agreements, so for example rich nations could get developing countries to agree to TRIPs (intellectual property rules), on the basis that they had to do it to get something on agriculture, etc.  So, in this round, the Indians have insisted that implementing trade facilitation (mostly a developed country demand) depends on protection against WTO challenge for food security programs like India’s food subsidies for its poor.

With a bilateral deal between India and the US last week on food security, there is now the opportunity to move forward to complete the package negotiated in December 2013 at the Bali WTO Ministerial, and then, beyond that, to strike further deals that make the WTO as a negotiating forum relevant to the issues of today and tomorrow.  Reflecting the diversity of the WTO’s membership, some of these accords will be plurilateral, not binding all Members, but rather in the manner of “coalitions of the willing”, but still  (at least eventually) under the WTO umbrella, using its well-developed dispute settlement system and institutional framework.  Thus, another bilateral accord in recent weeks, between the US and China, will allow the Members involved to push forward with a new version of the plurilateral Information Technology Agreement (ITA).  At the same time, negotiations on liberalization of green goods have been happening in Geneva, another plurilateral initiative, where US leadership has been crucial (Canada’s WTO Ambassador, Jonathan Fried, has also given these talks a big push).

So, contrary to what the pessimists have been saying, the WTO is far from dead these days.  But some are claiming that the recent breakthrough is in fact trivial and disguises the virtual irrelevance of the current WTO agenda.  Financial Times journalist Alan Beattie, writing yesterday on one of the FT’s blogs, claims that reaching agreement with India on food security in order to push forward on the Trade Facilitation Agreement is hardly a victory, at all but perhaps a defeat in disguise.  Part of  Beattie’s argument is that the TFA is an unimportant accord, which has been blown up in significance because other elements of the Doha round agenda proved largely impossible to move forward on (such as genuine reform of rules on agriculture).   So what is the real story about trade facilitation?  Beattie is more wrong than right, and here’s why.

First of all, a little explanation of the jargon.  Trade facilitation is about improving customs administration, and the necessary infrastructure to move goods across borders.  Sounds boring, but the losses to otherwise efficient trade from these kinds of bottlenecks at the border, whether do to as corruption and incompetence, or just inadequate resources or out-of-date technology, are real.  One may question whether, however, the WTO, or indeed any set of legal rules, is up to tackling this kind of issue: it seems more a matter of institution-building, support for new technology and infrastructure, and rule of law/governance activities such as training of officials and redesign of domestic agencies.  In other words, if anything, the World Bank’s and regional development banks’ sort of thing, not the WTO’s.  Thus, I myself have in the past expressed skepticism about how much the WTO can do in this area.  (An excellent guide to the TFA by Ole Miss law professor Antonia Eliason can be found here).

Yet, as Ruti Teitel and I have argued in our essay “Beyond Compliance,” (more…)

Alexandre Kojève, a Neglected Figure in the History of International Law

by Robert Howse

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris. His first post can be found here.]

After a long period of relative neglect of such studies, there’s a boom in scholarship in the history of international law, as Alexandra Kemmerer noted at Voelkerrechtsblog early this fall. Kemmerer suggests, rightly, that disciplinary boundaries limit the full potential of historical studies to illuminate the genesis and sources of the international legal world in which we live. A true example of this is Alexandre Kojève, the French-Russian philosopher whose left-wing Hegelianism inspired a crucial generation of postwar Paris intellectuals, including figures such as Queneau, Lacan and Merleau-Ponty.  Kojève wrote (though rarely published in his lifetime) works on religious thought (including inquiries into Eastern religions), on the meaning of abstraction in art (he was Kandinsky’s nephew), on determinism in modern physics, on Hegel’s Logic, and a three volume history of ancient philosophy.  Kojève’s famed debate with Leo Strauss about the world state, On Tyranny, is the subject of a chapter in my recent book Leo Strauss Man of PeaceSo obviously Kojève defied, and his oeuvre defies, all normal disciplinary or specialization boundaries.

Almost hidden in all of this, however is an important volume of legal philosophy, Outline of a Phenomenology of Right. It was written when Kojève was in Marseilles during World War II, working in the French resistance, but only published long after his death, at the initiative of the great French public intellectual and cold war liberal Raymond Aron  (With Bryan-Paul Frost, I’ve produced a translation, and interpretive commentary). The Outline deserves the attention of scholars of international law in part because of its distinctive argument that globalization of law’s destiny-arguing less from the philosophy of history, though that’s always in the background, but principally from a view of the intrinsic nature of legal order, and the human ideal it seeks to realize.  Kojève’s argument is that a universal legal order-with however important components of what we would call “subsidiarity” or federalism-will emerge through mutual recognition between judges and regulators and the (partial) harmonization of laws that is entwined with recognition.  He imagined a form of globalization that would entail important elements of social justice, a conception of equal citizenship as including social and economic rights.  It is interesting to compare Kojève’s idea of recognition and global justice with that developed by Emmanuelle Jouannet in her recent book, What is a Fair International Society?, which has just been reviewed by Ruti Teitel in EJIL.

But, believe it or not, there’s lots more. This very same Kojève also happens to have been one of the main legal architects of the GATT; as Irwin, Mavroidis and Sykes note in their study of the GATT’s origins, he was head of the legal drafting sub-committee.  At the time Kojève was a French official, who would also work with Robert Marjolin among others on the design of the European Community (now Union).  Kojève tried to influence the development of the GATT in a direction contrary to the mercantilist or proto-neoliberal tendencies of the Anglo-American negotiators.  He designed proposals for a global commodities facility, and was at the forefront of efforts to provide a special regime for developing countries, which Kojève conceived as a kind of reversal of colonialism, with new rules that would switch around the terms of trade between developing countries and the former imperial powers in the developing countries’ favor. He was apparently known as the “serpent” by the American GATT team, one former ambassador told me, because his dialectical brilliance could run rings around those who challenged his position in Geneva discussions. Looking at Kojève’s role is useful in helping us understand that there were highly informed alternative views of the international trading system at the Geneva table during the formative years; this contrasts with the impoverishment that came with the adoption of a basically neoliberal outlook by the increasingly closed “epistemic community” that produced the WTO, and the legitimacy crisis of global economic governance that followed not long after the WTO’s founding. Remarkably, no in-depth study has been done of Kojève’s place in postwar international economic lawmaking and diplomacy; a few years back I spent some weeks in archives in Paris, preparing the initial groundwork for such a study.  But it would require quite a few interviews as well much more archival work, including at the GATT itself, to do the job properly. I hope there’s someone out there reading this who will beat me to it…

Guest Post: Tearing Down Sovereign Immunity’s Fence–The Italian Constitutional Court, the International Court of Justice, and the German War Crimes

by Andrea Pin

[Andrea Pin is senior lecturer at the University of Padua, where he teaches constitutional law, comparative public law, and Islamic law. He is also a fall 2014 Kellogg visiting fellow at Notre Dame.]

A few weeks ago, the Italian Constitutional Court’s decision no. 238 of 2014 struck blows to the theory and practice of sovereign immunity, the International Court of Justice (ICJ), German-Italian relationships, and even the Italian Government. On October 3, 2012, the ICJ decided that the customary sovereign immunity from jurisdiction protects Germany from suits brought before Italian domestic courts seeking compensation for Nazi crimes perpetrated in Italy during World War II.

Later on, new suits were filed against Germany in Italian domestic courts. This time, Italian judges requested a preliminary ruling from the Italian Constitutional Court to ascertain if the sovereign immunity protection, as crafted by the ICJ, was against the Italian Constitution. If the Court found that such immunity violated the Constitution, the judges would process the suits.

The Constitutional text proclaims that “The Italian legal system conforms to the generally recognised rules of international law” (Art. no. 10). International customary law falls in this category and therefore prevails over incompatible domestic legal provisions. But there has always been a caveat: the generally recognized rules of international law cannot be enforced in Italy if they conflict with the supreme principles of the Constitution. This is the doctrine of counter-limits, which the Constitutional Court shaped with special regards to the European Union integration: according to this doctrine, core constitutional values would set exceptional boundaries to the domestic enforcement of EU laws, which can ordinarily subordinate constitutional provisions.

The hypothetical non-enforcement of international law for violating a supreme constitutional value had never become reality—until now. The 2014 decision of the Constitutional Court found that Art. no. 24 of the Constitution (“All persons are entitled to take judicial action to protect their individual rights and legitimate interests”) encapsulates a fundamental principle of the Constitution. Therefore, the Court blocked the application of sovereign immunity from jurisdiction, and allowed the referring Italian judges to proceed with the relevant trials.

This unprecedented decision surely is in conflict with the ICJ Statute. In fact, the Italian Court consequently struck down the pieces of Italian legislation that commanded the enforcement of the ICJ’s judgments in cases of gross human rights violations as well. But it will also create some turbulence in the relationships between Italy and Germany.

The Constitutional Court’s decision, finally, is in conflict with the Italian Government’s attitude. After the ICJ’s judgment, the Government signed and had the Parliament execute the New York Convention on Jurisdictional Immunities of States and Their Property (2004). This Convention confirmed the ICJ’s approach to sovereign immunity: practically speaking, after losing at the ICJ, the Italian State happily legitimized Germany’s jurisdictional immunity. The Constitutional Court also needed to quash these pieces of Italian legislation. (more…)

The Return of the Neocons (and their Scorn for International Law): A Sword without a Strategy

by Robert Howse

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris.]

According to Jacob Heilbrunn, the editor of The National Interest, the neocons are about to make a spectacular comeback in American foreign policy.  Writing about the midterm elections in the Financial Times last Friday, Heilbrunn observed: “the Republican party is resurrecting the unilateral foreign policy doctrines that first took hold under President George W Bush and his vice-president Dick Cheney.” So let’s take a hard look at the weapons the neocons have in their arsenal these days.

The first, as Heilbrunn notes, is Barack Obama, or more precisely discontent with his apparently reactive and hesitating approach to foreign and security policy, exemplified by situations such as Ukraine, Syria and the rise of ISIS.  If you read the fine print, to the extent there is any, the neocons like Cheney and Bill Kristol don’t have any master plan or worked out strategy of their own for dealing with these problems.  They appeal to the heartwarming (for some Americans) fantasy that, if the United States simply drops enough bombs and puts enough boots on the ground, victory over the forces of evil will prevail.  In this fantasy world, every apparent failure of intervention–Afghanistan, Iraq–can be explained by not enough American force being applied.  Consider Bill Kristol’s approach to ISIS: “What’s the harm in bombing them at least for a few weeks and seeing what happens?” This is the key logic:force has got to be better than no force, a sort of dogmatic inversion of pacifism. Of course, Kristol’s remark also speaks volumes to the neocons’ stance toward international law.

Then there is Senator-elect Tom Cotton.  As Heilbrunn notes,”Perhaps no one has been more impassioned in their support of the foreign policy of George W Bush than Tom Cotton.” Cotton, 37 years old, is the neocon wet dream.  After Harvard College (where he wrote for the Crimson, citing intellectual idols Allan Bloom and Leo Strauss) and Harvard Law School, Cotton signed up for the military insisting that he be sent into combat in Iraq.  While, as the legend goes, the army urged him toward a JAG-type position, Cotton would have none of it:  he had little interest in the laws of war, he wanted to fight one.  Cotton is perhaps the most credible of any of the neocons–he, at least, chose to risk his life in the war that he praised as “just and noble”.  He has also (at least somewhat) distanced himself from the main neocon strategy of withering attacks on Barack Obama, calling on Republicans to support the President’s plan for use of force in Syria and rather nobly lecturing partisan Republican conservatives: “we have one commander in chief at a time, and the United States is weakened if our presidency is weakened. No matter the president’s party or his past failures, all Americans should want, and help, him to succeed when it comes to our national security.”   While he shares the outlook of the ideological and partisan neocons, offering his conviction that America can and should seek “victory” in Afghanistan and Iraq, my hunch is that, given that he has had the responsibility as a soldier for the lives of men and women in combat, Cotton may actually prove a constructive and moderating force behind the scenes, if he does not consume too much energy in battles with the isolationist Rand Paul wing of the Republican Party.

(more…)

Thoughts on the Baffling Comoros Declination

by Kevin Jon Heller

As I read – and re-read – the OTP’s decision regarding the attack on the Mavi Marmara, one thought kept going through my mind: what was the OTP thinking? Why would it produce a 61-page document explaining why, despite finding reason to believe the IDF had committed war crimes during the attack, it was not going to open an investigation? After all, the OTP took barely 10 pages to explain why it was not going to open an investigation into British war crimes in Iraq. And it routinely refuses to open investigations with no explanation at all.

There are, I think, two possible explanations for the length of the decision. The first is that the OTP learned its lesson with its 2006 Iraq decision, which no one found convincing and was widely interpreted as Luis Moreno-Ocampo succumbing to Western pressure. This time, the OTP was going to do better, providing a much more detailed discussion of its decision not to investigate.

The second possible explanation is that the OTP felt the need to say more than usual because this was the first time a state had referred crimes committed by another state to the OTP. Nothing in the Rome Statute requires the OTP to treat state referrals differently than “referrals” by individuals or organisations (the scare quotes are necessary because individuals and organisations don’t refer situations; they ask the OTP to use its proprio motu power to open an investigation into a situation), but the OTP is, of course, ultimately dependent upon states to cooperate with it. Hence greater solicitude toward state referrals is warranted.

These two explanations are not mutually exclusive, and I imagine both are at least partially correct. But I still can’t help but think that the OTP made a serious mistake, one that will come back to haunt it in the future, should it ever need to formally address the Israel/Palestine conflict again — which seems likely.

To be clear, I don’t think refusing to investigate the attack on the Mavi Marmara was a mistake. I agree with the OTP that the potential crimes committed during the attack, however troubling, are not grave enough to warrant a formal investigation. My problem is with the OTP’s explanation of why those crimes are not adequately grave – that attacks on peacekeepers (in Darfur) are more serious than an attack on civilians engaged trying to break a blockade that has been widely condemned as illegal because of its devastating consequences for the inhabitants of Gaza. I fully agree with Michael Kearney’s recent guest-post on the Comoros decision, in which he questions the OTP’s characterisation of the flotilla as not really being humanitarian. I’d simply add that I find problematic its insistence that a genuinely humanitarian mission would have worked with Israel to distribute goods in Gaza instead of trying to break the blockade. Doing so would have meant, of course, giving final say over the goods to a state whose officials have admitted they want to keep Palestinians at near-subsistence levels. Complying with the blockade would simply have made the flotilla complicit in Israel’s ongoing collective punishment of Gaza’s civilian population.

The OTP’s gravity analysis is also analytically confused…

Guest Post: A Big Deal on Climate?

by Daniel Bodansky

[Daniel Bodansky is Foundation Professor of Law at Sandra Day O’Connor College of Law, Arizona State University.]

Is the US-China joint announcement on climate change a big deal? Opinions differ widely. Paul Krugman says yes, Tyler Cowan, no.

Who’s right? Is the announcement a “gamechanger,” as Joe Romm thinks, or “a well-timed, well-orchestrated press release,” as Cowan calls it? In part, the different answers reflect different measures of success, a point to which I will return in a moment.

But, first, a little background. Back in 2011, the parties to the UN Framework Convention on Climate Change adopted the Durban Platform, which launched negotiations to develop a new legal instrument to limit global greenhouse gas emissions post-2020. The Durban Platform negotiations are to be completed and a new agreement adopted in December 2015 at the Paris conference of the parties. A decision adopted last year in Warsaw called on states to communicate their intended national contributions to the new agreement well in advance of the Paris meeting. What the United States and China unveiled in Beijing – although generally characterized as an “agreement” or “pact” – were their intended national emission targets under the 2015 agreement.

At least four metrics are relevant in evaluating the joint announcement:

First, do the announced targets put us on a pathway towards limiting climate change to safe levels? Safety involves value judgments, of course, but most scientists believe that warming of more 1.5-2° C above pre-industrial levels would result in dangerous impacts – impacts that most people would wish to avoid. (The earth is already about .8 degrees warmer than pre-industrial level, so we’re almost halfway there.) Even the most ardent boosters of the US-China deal don’t claim that, by itself, it will put the world on a 2° pathway, only that it is a first step.

Second, do the targets announced by the United States and China represent a significant improvement over business as usual? Or, to put it differently, will achieving them require the US and China to significantly ratchet up their level of effort? Here, opinions differ widely, because they depend on judgments about what would happen in the absence of the targets, which in turn depend on assumptions about the economy, technology, and government policies more generally – all of which are highly uncertain. Who would have predicted, ten years ago, the Great Recession and the rapid expansion of fracking, both of which have had a huge influence on US emissions? So it is perhaps not surprising that some analysts say the US-China announcement “doesn’t change things much,” while others think it represents a major advance. Climate Interactive, for example, calculates that the US-China targets, if fully implemented, would reduce carbon dioxide emissions by about 650 billion tons through 2100 – and if other countries follow suit, taking similar targets, global emissions would be reduced by about 2500 billion tons through 2100.

A brief sampling of estimates of Chinese and US emissions:  (more…)

Guest Post: Amidst the Academic Mania for the Identification of Customary International Law–The ILC and the Operative Value of Distinctions

by Jean d'Aspremont

[Jean d’Aspremont is a Professor of International Law, University of Manchester and a Professor of International Legal Theory, University of Amsterdam.]

The identification of customary international law is à la mode among international lawyers. Seminars, research handbooks, special symposia in scholarly journals and on-line discussions devoted to the question are mushrooming these days. Arguments and constructions heard on these occasions are sometimes admirably – and sometimes even adorably – creative. Amidst this academic mania, particularly noticeable is the forthcoming expert seminar organized by Lincoln Law School and the Manchester International Law Centre on Thursday the 13th and Friday the 14th of November 2014 at Lincoln Law School. This two-day meeting will gather 25 international lawyers from across the United Kingdom. They will be joined by Sir Michael Wood, i.e. the International Law Commission (hereafter the ILC)’s Special Rapporteur. The discussions that will take place on this occasion are meant to provide the Special Rapporteur with new insights that could feed in his 3d report due in 2015. This expert seminar follows a series of similar meetings that were held in the last months both in the United Kingdom and the United States. It also perpetuates the – welcome – outreach and openness of Sir Michael Wood to the academic community witnessed over the last two years. On the eve of this new expert meeting, it is not unwarranted to take stock of where the debate currently stands as well as the direction in which the ILC and its Special Rapporteur are steering it.

Two years into the debate and after the submission of two reports by the Special Rapporteur, the ILC has already taken a few firm positions which it is unlikely to reverse. It would be of no avail to revisit them here. These choices, which are obviously more normative and policy-motivated than grounded in empirical findings, simply ought to be recalled:

  1. The ILC decided not delve into the (jurisprudential) question of the nature of the rules, principles and practices on the establishment of customary international law (for a study on this question, see here). The reference in the draft conclusions to the rules on customary international law is meant to be without prejudice to the nature of the doctrine of customary law.
  2. The question of customary international law arising in connection with ius cogens was left aside.
  3. The regime of customary international law was held to apply across all areas of international law and the idea of differentiated regimes of customary law identification (e.g. in international criminal law or environmental law) was strongly rejected by the ILC and its Special Rapporteur. The position that prevailed in the Palais des Nations is that the difference is not of regime but of application. This normative move for the preservation of the unity of the doctrine of customary law is not without a self-empowering dimension, as it automatically gives the work of the ILC a universal scope.
  4. The doctrine of customary law was equated with the two-element approach and no consideration will be given to scholarly constructions pertaining to the so-called ‘new custom’ (see the report’s draft conclusion 3 and drafting committee’s draft conclusion 3). This position is part of the abovementioned promotion by the ILC of a unitary regime of identification of customary international law.
  5. Both the Special Rapporteur and the Drafting Committee considered preferable not to address the question of non-State actors in the conclusions themselves as there was supposedly a widespread agreement that the practice of non-State actors generally is not directly relevant to the formation of customary international law. This was deemed to be without prejudice to the influence of non-State actors in the promotion and adoption of certain behaviours by States and international organizations.

The second report proposed 11 draft conclusions which were referred to the ILC’s Drafting Committee which provisionally adopted 8 conclusions. It will not come as a surprise that the second report as well as the conclusions adopted by the Drafting Committee have not clinched all the controversies associated with the aspects of the identification of customary law that have already been addressed so far. Mention must be made here of some significant recurring ambiguities:

  1. Although taking pains to distinguish between the establishment of customary law and the evidence of the two elements (see the report’s draft conclusion 4 and draft conclusion 10), the two processes remain conflated in some provisions (see the report’s draft conclusion 2).
  2. While unflinchingly adhering to the two-element approach, the second report occasionally nurtures some conflation between the two elements. For instance, some acts can indeed be constitutive (and/or declarative) of both practice and opinio juris (see report’s draft conclusion 7 and draft conclusion 11). This creates a tension between the universal adherence to the two-element approach and an inclusive understanding of practice and opinio juris reminiscent of what is often witnessed in the practice and scholarship.
  3. The rules in which the practice of states or international organizations can potentially coalesce are left undefined (see the report’s draft conclusion 5 and draft conclusion 7 as well as the drafting committee’s draft conclusion 4). This silence leaves open the – very contra-intuitive and technically incongruent – possibility for international organizations to contribute to the formation of rules that only bind states and vice-versa.
  4. In case of dissonant individual States practice – that is when the organs of a State do not speak with the same voice, the position adopted so far is to give less weight in given to the practice of that state (see the report’s draft conclusion 8). This leaves unanswered the possibility of the practice of some organs being given more value. This could be the case if the rule concerned pertains more specifically to the behaviour of one type of organ (e.g. the judiciary in the case of rules on state immunity). It also ignores the possibility of resorting to other criteria in case of dissonant practice, like representativeness, powers or delegation. Obviously the same difficulties arise in the case of dissonant practice of organs of international organizations.
  5. The notion of specially affected states has been scarcely discussed in the second report whilst it seems to call for much more consideration. This question not only pertains to the material possibility of practice and opinio juris by certain states or international organizations (e.g the practice of landlocked states in connection with the law of the sea) but also to the quantitative variations in the practice generated by States or international organizations (e.g. the practice of a major military power constantly engaged in armed conflicts compared to the practice of a small and peaceful state in relation to international humanitarian law or the use of force).

Whilst the abovementioned expert seminar will revert to some of these lingering ambiguities (most of which the Special Rapporteur is aware of), attention will also be paid to the controversies which the Special Rapporteur will seek to address in his third report. This includes:

  1. The role of treaties,
  2. Resolutions of international organizations and conferences
  3. The practice and opinio juris of international organizations
  4. The persistent objector rule
  5. Inaction as a form of practice and/or evidence of opinio juris
  6. Special, regional and bilateral custom
  7. Dissemination and publicity of practice and opinio juris

The orientation of the debates which will take place at Lincoln Law School and in the ensuing months can of course not be prejudged here. Yet, it is anticipated that, given the pragmatic spin given to the work of the ILC, a dilemma is likely to arise and infuse the future discussions related to the third report of the Special Rapporteur. The ILC has obviously embraced a problem-solving, pragmatic and clarificatory approach. Indeed, its ambition has not been to work on the internal aesthetics of the doctrine of customary law but to strip debates of their theoretical intricacies with a view to offering useful guidelines that can ease the identification of customary law by both practitioners and scholars. In that sense, the value of academic hair-splitting has been plaid down in the Palais des Nations, not without good reason. This does not mean, however, that one should let all the conceptual distinctions on the basis of which the doctrine of customary law was – albeit artificially – built collapse completely. Indeed, ironing out of all those distinctions may well be counter-productive as it would make the doctrine even less operable. If, as some of the abovementioned recurring ambiguities seem to make possible, resolutions of international organizations or diplomatic protests or any relevant act or statement can be constitutive or declarative of either practice or opinio juris (or both) by either States or international organizations (or both) and generative of an obligation binding either States or international organisations (or both), one may wonder whether law-applying authorities will actually find in the ILC’s practical toolkit the guidance that is currently promised to them. After all, conceptual distinctions also come with an operative value for those confronted with the question of the identification of customary international law.

A follow-up post will appear on Opinio Juris shortly after the seminar.

Guest Post: The Italian version of Medellin v. Texas? Or, a new hope after Kiobel?

by Giacomo Pailli

[Giacomo Pailli is a PhD in comparative law at University of Florence, Italy]

Many readers will recall the judgment of the International Court of Justice in Germany v. Italy, where the Court upheld Germany’s claim of immunity under international law vis-a-vis Italy’s exercise of jurisdiction over certain Nazi crimes that had occurred during World War II. The decision received a lot of commentary, e.g., by Ingrid Wuerth on this blog and by Paul Stephan on Lawfare. Following the decision, the Italian Corte di cassazione, which previously found that immunity could not lie when crimes of such gravity were concerned, had no choice but to bend its head (see, e.g., its decision no. 32139 of 2012, also here, and no. 4284 of 2013). The story seemed settled and closed.

On October 22, 2014, however, the Italian Corte costituzionale wrote a new and surprising chapter with its decision no. 238. Upon referral by the Tribunale di Firenze, and faced again with claims against Germany by victims of Nazi’s crimes committed during WWII, the Constitutional court found that the ICJ holding in Germany v. Italy is contrary to fundamental principles of the Italian Constitution (namely, articles 2 and 24) in that it deprives victims of crimes against humanity of the possibility, altogether, to seek justice and redress for the torts suffered. Thus, the Constitutional court found that no effect to the ICJ decision can be given in the Italian legal system; Italian jurisdiction continues to hold and the Tribunale is free to proceed with hearing the merits of the dispute.

Technically, the Constitutional court applied a long established but (to my limited knowledge) seldom used constitutional doctrine.  It declared that the two Italian laws in question, one ratifying the UN Convention on States’ Immunity of 2004 (art. 3 of the law 14 January 2013, no. 5) and the other the UN Charter (art. 1 of the law 17 August 1957, no. 848) are partially unconstitutional to the extent they would require Italy to abide by the decision of the ICJ, which would force Italy to deny its jurisdiction vis-à-vis crimes against humanity.

I should stress that, as far as the law no. 848 of 1957 is concerned, the effect of this most recent decision is expressly and surgically limited to prevent the ICJ’s holding of 3 February 2012 from having effects within the Italian legal system; otherwise, the law is left completely untouched.

Huge Win in the Zimbabwe Torture Docket Case

by Kevin Jon Heller

Earlier this year, Chris Gevers blogged about the Zimbabwe Torture Docket case, in which the Constitutional Court of South Africa was asked to determine whether the South African Police Service (SAPS) is required to investigate allegations that high-ranking government and security officials in Zimbabwe committed acts of torture. Those acts took place solely in Zimbabwe and involved only Zimbabweans, so the key issues in the case were (1) whether South Africa’s adoption of universal jurisdiction over torture obligated SAPS to investigate the torture, and (2) if so, what conditions, if any, qualified that obligation.

As Chris noted in his post, I and three other international criminal law scholars (Gerhard Kemp, John Dugard, and Hannah Woolaver, with Hannah doing most of the heavy lifting) filed an amicus brief with the Court addressing the question of whether anything in international law prohibits a state from opening a universal-jurisdiction investigation in absentia — without the presence of the suspect. That was a critical sub-issue in the case, because although the Zimbabwean suspects travel regularly to South Africa, they would not necessarily be present at the beginning of a SAPS investigation.

The Court released its decision today — and it’s a complete win for the amici and (far more importantly) for the excellent Southern Africa Litigation Centre (SALC), which brought the case. First, with regard to the in absentia issue, the Court agreed with amici that international law did not prohibit universal-jurisdiction investigations in absentia (p. 27). I won’t rehash the Court’s analysis, but I do want to quote the Court’s excellent explanation of why states should be allowed to conduct such investigations (p. 28):

[48] This approach is to be followed for several valid reasons. Requiring presence for an investigation would render nugatory the object of combating crimes against humanity. If a suspect were to enter and remain briefly in the territory of a state party, without a certain level of prior investigation, it would not be practicable to initiate  charges and prosecution. An anticipatory investigation does not violate fair trial rights of the suspect or accused person. A determination of presence or anticipated presence requires an investigation in the first instance. Ascertaining a current or anticipated location of a suspect could not occur otherwise. Furthermore, any possible next step that could arise as a result of an investigation, such as a prosecution or an extradition request, requires an assessment of information which can only be attained through an investigation. By way of example, it is only once a docket has been completed and handed to a prosecutor that there can be an assessment as to whether or not to prosecute.

The Court then proceeded to hold that SAPS not only had the right to open a universal-jurisdiction investigation into torture in Zimbabwe, it had an obligation to do so — a remarkable position for the Court to take…