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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…

What Does China Mean When It Celebrates the “International Rule of Law”?

by Julian Ku

In observance of United Nations Day on October 24, China’s foreign minister Wang Yi issued a long statement expressing China’s view of itself as a “staunch defender and builder of international law” (Chinese version here). As China-watchers know, China’s Communist Party has just completed its “Fourth Plenum” (sort of a Party leadership strategy meeting) on the theme of the promotion of the rule of law, so it is not surprising that China’s leadership would have something to say about the international rule of law as well.

The statement is pretty predictable (and largely unobjectionable) in its broad pledge for Chinese support to “international law” or the “international rule of law.”  It is hardly pathbreaking.  Still, as I have suggested in earlier posts, China’s government tends to have a slightly different view on what constitutes “international law” as compared to the United States or Europe.  So while much of the statement is pretty anodyne (it is communist-party-speak, after all), there are a few points relating to China’s emphasis on sovereignty and its allergy to human rights that are worth noting:

1) International Law and China’s History of National Humiliation

The statement places China’s commitment to international law in the context of its historical struggles facing foreign oppression in invasion beginning with the Opium War of the 1840s.  This reference to China’s historical weakness in the nineteenth and twentieth centuries is standard nationalist fare in China, but it is interesting that it is linked here to modern international law. As the statement notes, “[s]eeing the contrast between China’s past and present, the Chinese people fully recognize how valuable sovereignty, independence and peace are.”  I think this historical experience is a useful explanation for why there are deep roots to the version of international law presented here.  For China, international law is closely linked to its achievement of independence from foreign powers, and there is no principle more dear to China in international law than “sovereignty” and independence from foreign domination.  Those of us educated in the States have been taught that sovereignty is usually an obstacle to the promotion of international law (Louis Henkin even called it the “S” word), but that concept is still hard to sell in China.

2) Sovereignty 5:  Human Rights 0

Indeed, the statement mentions “sovereignty” five times as a fundamental principle of international law, as referenced in the United Nations Charter. Thus, the statement cites certain universally recognized norms of international law and relations such as

…[A]s respect for sovereignty and territorial integrity, peaceful settlement of international disputes and non-interference in the internal affairs of others, as enshrined in the UN Charter, are the foundation stones upon which modern international law and conduct of international relations are built.

This is right out of Article II of the UN Charter.  But it is hard to imagine a statement by the United States about international law that did not also mention the UN Charter’s commitment to the protection of human rights.  To be sure, human rights protection is not in Article II of the UN Charter’s list of “Principles” but it is odd (at least to an American) to see it ignored so completely here.

3) Just Say No to Responsibility to Protect 

The statement takes direct aim at those countries who are interventionist.

Hegemonism, power politics and all forms of “new interventionism” pose a direct challenge to basic principles of international law including respect for sovereignty and territorial integrity and non-interference in other countries’ internal affairs. Some countries follow a pragmatist or a double-standard approach to international law, using whatever that suits their interests and abandoning whatever that does not.

Hmm.. I wonder which country or countries it is referring to here?  This position also reflects longstanding Chinese policy against any kind of military intervention (and most other kinds as well) no matter what the justification.  So don’t count on a Chinese vote for that Syria intervention.

4) Go Democracy (between, but not within, nations)!

The statement also endorses democracy…that is to say, democracy in international lawmaking.  It accuses some countries (the One-Who-Must-Not-Be-Named) of trying to make “rules of certain countries as “international rules”, and their standards “international standards”. I am guessing this is clearly a shot at the U.S. in areas as varied as trade laws, IP, and human rights.

5) Philippines and UNCLOS arbitral tribunal: Don’t You Dare Ruin International Law

Not surprisingly, the statement takes aim at international and national courts.   It declares:

“National and international judicial institutions should avoid overstepping their authority in interpreting and applying international law. Still less should they encroach on the rights and interests of other countries under the pretext of”the rule of law” in total disregard of objectivity and fairness.”

I think this is clearly a warning signal to the UNCLOS arbitral tribunal formed to resolve the Philippines claim against China.  This is another sign there will be no backing down on this arbitration. China is going to continue to loudly proclaim its commitment to rule of law, and continue to reject and maybe even denigrate the legitimacy of this arbitration.

6) International Rule OF Law, not Rule BY Law

Finally, I’ll note that the statement’s use of the phrase “international rule of law” might help clarify a debate among China-watchers as to what China means by the phrase “rule of law.”  As Josh Chin has usefully explained in the Wall Street Journal here, the Chinese phrase “法治“ (fazhi) is often translated as “rule of law” but could also be translated as “rule by law”.  Indeed, there is a traditional Chinese “Legalist” tradition that thinks of law as an instrument for ruling society, but less so as a constraint on lawmakers and government.  Most China-watchers would probably say that “rule by law” is a more accurate translation of what the Chinese Communist Party means when they call for the promotion of the “法治” (fazhi) in domestic reforms, since most expect the Party to remain effectively above the law for most key matters in the future, but for law to be used as a mechanism of social and political control of everyone else.

No matter what the Party means domestically by 法治 (fazhi), it is clear that its use internationally fits within the Western conception of law as an autonomous force constraining state power and preserving state equality.

In promoting international rule of law, the most important thing is to use universally applicable rules in international relations to distinguish right and wrong, end disputes and seek a win-win solution through coordination. This is vital to international rule of law. The formulation, interpretation and application of international law should all be conducive to this goal. Under no circumstances should we inflate the arrogance of hegemonism and power politics, still less use international rule of law to instigate disagreement and friction,for it will only lead us to a wrong direction.

Indeed, in its call for universally applicable principles, democratic lawmaking, and the use of law to restrain strong states from taking advantage of the weak, the Chinese Communist Party is invoking a version of rule of law that many Westerners would be familiar with.  It will be interesting to see if this conception bleeds over into the Party’s push for domestic rule of/by law reform.

 

Mark Kersten on the Terror Attacks in Canada

by Kevin Jon Heller

These days, I usually use Twitter to point readers to blog posts that deserve their attention. But Mark Kersten’s new post at Justice in Conflict is so good — and so important — that I want to highlight it here. The post achieves the near-impossible, passionately indicting Canada’s right-wing government for creating a political environment ripe for terrorism without in any way suggesting that Wednesday’s terror attacks were justified. It’s a truly brilliant post, from top to bottom. Here is a snippet, concerning the Harper government’s foreign-policy disasters:

The Canadian government has actively pursued a political philosophy of retribution and control that tarnishes the country’s image as an ‘honest international broker’. Harper’s record attests to an unyielding mission to reshape Canada’s international identity as a tough and hard-power state. The Harper government plays the part of destructive belligerent in climate change negotiations and tar-sands cheerleader. It is first in line to threaten Palestine with “consequences” if Ramallah pursues accountability for alleged crimes committed by Israeli forces in Gaza. While it isn’t usually described as such (many prefer terms like “militarily engaged”), the reality is that Canada has been at war, primarily in Afghanistan, for most of the last decade. And while we should judge each decision to engage in wars on their own terms, the government has positioned itself as a military – rather than diplomatic or humanitarian – middle power. The role of Canadian citizens in the Afghan detainee scandal has been swept under the rug. The government willfully left a child soldier, Omar Khadr, to rot in Guantanamo and were the only Western government not to request the repatriation of their citizens from that nefarious island prison. It left Abousfian Abdelrazik, a Canadian citizen wrongly accused of terrorism, stranded in Khartoum for years and threatened anyone who tried to help him return to Canada with aiding and abetting terrorism. In a country that takes pride in seeing Lester B. Pearson as the father of peacekeeping, the government prefers to count the number of fighter jets it will buy than the number of peacekeepers it deploys. And, making matters worse, those who disagree with the Harper government’s approach to being “hard on crime”, “tough on justice”, and “a military power” are too often portrayed as naive or betraying Canadian values.

Sadly, it’s not just Canada that has pursued the kind of right-wing policies that make horrific acts of terrorism more likely. Very similar posts could — and should — be written about the Key government in New Zealand, the Abbott government in Australia, and (yes) the Obama government in the US. These misguided policies have done next to nothing to prevent terrorism; they create the illusion of security, not its actuality. Indeed, insofar as they do little more than further radicalize the populations they affect, the policies have made us all that much less safe.

Read Kersten. And if you are on an academic committee that is looking to appoint a brilliant young lecturer, hire him.

Guest Post: The Evolving Law of Foreign Official Immunity–Mortazavi and Bakhshi, Prince Nasser, and “Samantar II”

by Chimene Keitner

[Chimène Keitner is Harry & Lillian Research Chair and Professor of Law at UC Hastings. She is on Twitter @KeitnerLaw.] 

I look forward to discussing developments in the international law of non-state actor immunity on a panel on “Responsibility and Immunity in a Time of Chaos” at International Law Weekend this Saturday morning with co-panelists Kristen Boon and August Reinisch, moderated by Larry Johnson. For those of you who can’t attend, we thought we’d offer a taste of our discussion here on Opinio Juris.

In recent years, my research has focused on questions relating to the personal responsibility and ratione materiae immunity of individuals who act on behalf of states. The International Court of Justice has thus far managed to avoid dealing with the subject of ratione materiae immunity. As I recounted on Opinio Juris earlier this year, a Chamber of the European Court of Human Rights found in Jones v. United Kingdom that the grant of ratione materiae immunity for torture to Saudi officials by the U.K. State Immunity Act (SIA) did not interfere disproportionately with the applicants’ right of access to court.

Jurisprudence in other Commonwealth countries with state immunity acts that resemble the United Kingdom’s has largely tracked the House of Lords’s 2006 judgment in Jones v. Saudi Arabia. In that case, the House of Lords found that the SIA conferred immunity on foreign officials from civil proceedings for torture, even though its 1999 judgment in Pinochet (No. 3) established a lack of such immunity from criminal proceedings. As a matter of statutory interpretation, the distinction between criminal and civil proceedings finds some support in the explicit exclusion of criminal proceedings or prosecutions from the scope of the U.K., Canadian, and Australian state immunity acts. (For more on these cases, see here.) The Canadian Supreme Court’s October 10 judgment in Kazemi and Hashemi v. Islamic Republic of Iran reinforced this bifurcated approach by interpreting the Canadian SIA to provide immunity from civil proceedings to two named officials (Mortazavi and Bakhshi) who allegedly ordered, oversaw, and actively participated in the torture to death of Canadian photojournalist Zahra Kazemi.

Given the exclusion of criminal proceedings from the scope of the SIA, claims to immunity ratione materiae from prosecution for torture in U.K. courts have followed the different path set out in Pinochet (No. 3). As Oliver Windridge related here at Opinio Juris, the way has been cleared for a criminal investigation into claims that Prince Nasser bin Hamad Al Khalifa, the son of the King of Bahrain, was directly involved in the torture of three individuals in a prison in Bahrain. Although some reports indicated that the prince had “lost” his immunity, it would be more accurate to state that the U.K.’s Director of Public Prosecutions ultimately determined that the prince did not benefit from, and never had benefited from, ratione materiae immunity from criminal proceedings for torture. Oliver’s post also notes that, in January 2013, a Nepalese army officer was charged in the U.K. with intentionally inflicting severe pain or suffering as a public official on two individuals during the 2005 civil war in Nepal.

In the United States, the only prosecution for torture to date remains that of Chuckie Taylor, who was sentenced in 2009 to 97 years in prison for torture committed in Liberia. The Torture Victim Protection Act, 28 U.S.C. § 1350 note, explicitly creates a civil cause of action for torture or extrajudicial killing committed under color of foreign law. Unlike the state immunity acts at issue in the civil cases described above, the U.S. Foreign Sovereign Immunities Act (FSIA) does not exclude criminal proceedings. The Supreme Court determined in Samantar v. Yousuf (2010) that the FSIA does not apply to suits against individual officials in their personal capacity that seek damages from the defendant’s “own pockets,” in which the state is not the “real party in interest.” In the absence of a statute, foreign official immunity in U.S. courts is governed by the common law. (For a guide to analyzing immunity claims post-Samantar, see here.)

Curt Bradley and Jack Goldsmith argued against taking a U.S.-style approach to personal capacity vs. official capacity suits in a short article published before Samantar was decided. Although I have taken issue with parts of their historical analysis here, their basic point that different policy considerations are in play in designing domestic immunity regimes and international immunity regimes remains sound. Curt has blogged about post-Samantar cases here, and John Bellinger has been chronicling these developments as well. On October 14, the Supreme Court asked for the Solicitor General’s views on whether to review the Fourth Circuit’s determination on remand that there is no ratione materiae immunity for torture because it is a jus cogens violation.

Much conceptual and historical analysis remains to be done as we await the Solicitor General’s brief and the Supreme Court’s decision about whether to tackle the issue of ratione materiae immunity under the “common law” in Samantar II or a future case. Just as the Court should not transplant domestic immunity doctrines wholesale into the foreign official immunity context, so too should it resist parroting decisions that interpret state immunity acts with fundamentally different structures and provisions. It is more important to resolve these issues properly than it is to resolve them quickly or all at once—especially since, in the U.S. context, the Court’s examination of common law immunity in civil cases could have potentially unintended consequences for criminal proceedings as well.

Guest Post: Back to Square One after Sixty Years? The Tory Attack on the European Human Rights System

by Başak Çalı

[Başak Çalı is Associate Professor of International Law at Koç University Law School, Turkey, and a member of the Executive Board of the European Society of International Law]

We, in the ‘from Reykjavik to Vladivostok’ Europe, have grown accustomed to being proud of the European Human Rights System in the last forty or so years. We teach courses on European Human Rights Law that distill over ten thousand European Court of Human Rights judgments. We start our lectures on European Human Rights Law by pointing out that Europe, despite all its flaws, has the most effective regional system. We note that the European Court of Human Rights has been cited by the US Supreme Court.  We celebrate how the effective rights doctrine has recognised and empowered Irish catholic women trying to divorce, Cypriot gay men wishing to walk safely on the streets, Kurdish mothers looking for their disappeared sons, Bulgarian rape victims, Azeri journalists, British children wrongly placed in care and more, so many more. We underline the importance of the guidance that the European Court of Human Rights has provided to domestic judges, prosecutors, law enforcement agencies and legislators on how to take into account human rights when doing their respective jobs. We also salute the fact that the European Human Rights System has brought those us of who live between Reykjavik and Vladivostok together in a recognition of our common humanity, its frailty and our desire for a common dialogue on human rights regardless of our jurisdictional differences. That is why a judge in Diyarbakır, Turkey has given some thought to Mr. McCann and the British military operation in Gibraltar in 1988. Why a judge in Scotland has asked herself what does the case of Salduz mean for her to respect fair trial rights.  We also spend long hours in classrooms, courtrooms and parliaments discussing whether the European Court of Human Rights got the ‘margin of appreciation’ right this time.

Now all that celebration and all the hard and painstakingly incremental gains of the European Human Rights System, a system based on solidarity to reach the common purpose of the promotion of human rights of all, is under serious threat. Unlike the debates that have ensued in the last ten years, the danger is not the Court’s famed gigantic case-load (as has been captured in the cliche of the ‘victim of its own success’) or the slow implementation of its judgments by some of the worst offenders. One political group in one country is out to shake the very foundations of the European Human Rights System.
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Further Thoughts: It is Indeed Legal for a U.S. Court Hold Argentina in Contempt

by Julian Ku

I am fascinated by the ongoing Argentina debt litigation saga (and not just because it looks more and more like a train wreck), but because it is forcing U.S. courts to burrow into even fuzzier nooks and crannies of the Foreign Sovereign Immunities Act to figure out what exactly US litigants can do when suing an intransigent foreign sovereign like Argentina.  I promised I would revisit the question of whether the U.S. judge’s contempt order against Argentina on Monday was legal, and here is my further (although still somewhat brief) analysis.

1) It is legal and consistent with U.S. domestic law for a U.S. court to issue contempt sanctions against a foreign sovereign.  

The most recent authority for this proposition is the quite recent 2011 opinion from the U.S. Court of Appeals for the D.C. Circuit, F.G. Hemisphere Associates v. Congo.   In that case, the D.C. Circuit rejected the argument by Congo (and the U.S. Government) that contempt sanctions due to Congo’s refusal to comply with discovery orders would violate the FSIA.  Following the U.S. Court of Appeals for the Seventh Circuit in Autotech Techs. v. Integral Research & Dev., 499 F.3d 737, 744 (7th Cir.2007), the Court held that nothing in the text or the legislative history of the FSIA suggested that there was any limitation on the inherent judicial power to issue contempt sanctions. It also rejected contrary precedent from the U.S. Court of Appeals from the Fifth Circuit in Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417 (5th Cir. 2006).

I think the DC and Seventh Circuits are right that nothing in the text or the legislative history of the FSIA bars a judicial contempt order against a sovereign.

2. There is some authority for the proposition that judicial contempt orders against foreign sovereigns are not accepted under international law, but there is reason to question whether there is international consensus supporting this authority.

Argentina can, and did, rightly point to Article 24 of the Convention on Jurisdictional Immunities of States and their Property as authority against the legality of contempt sanctions against sovereigns.

Article 24
Privileges and immunities during court proceedings
1. Any failure or refusal by a State to comply with an order of a court of
another State enjoining it to perform or refrain from performing a specific act
or to produce any document or disclose any other information for the purposes
of a proceeding shall entail no consequences other than those which may result
from such conduct in relation to the merits of the case. In particular, no fine or
penalty shall be imposed on the State by reason of such failure or refusal.

I think that the language of this provision seems to pretty clearly cover the situation in the Argentina debt case.  But I am less sure that Argentina is correct to call Article 24 of the Convention a rule of customary international law.

U.S. briefs citing Article 24 have been careful to call this rule an “international norm or practice” rather than a rule of international law.  There are good reasons to be circumspect on this point. After all, the Convention on Jurisdictional Immunities has NOT come into force, and has NOT even been signed by either Argentina or the United States, and has only been ratified by 14 other countries.  Moreover, the particular rule in Article 24 banning all court contempt-like orders is much broader than the domestic laws of states like the U.S. (see above) and even those agreed to by European states in the European Convention on State Immunity.  Article 17 of the European Convention is focused only on contempt orders for failure to produce documents, not all contempt orders for any act by the foreign sovereign.

So in conclusion, I am very confident that U.S. domestic law does NOT preclude a contempt order of any kind against a foreign sovereign.  I am somewhat confident that there is no clear consensus under international law that all contempt orders (even those unrelated to discovery) are prohibited, although I do think Argentina has a stronger case on this front.  However, in U.S. law, a rule of customary international law cannot override a federal statute, especially when the international acceptance of that rule remains uncertain.

As a practical matter, I do wonder if this whole contempt kerfuffle is just symbolic. The contempt order adds to Argentina’s obligations to pay, but it doesn’t really make it any easier for the creditors to collect since Argentina’s non-commercial assets in the U.S. remains immune from collection. While Argentina’s government may be outraged, this contempt order doesn’t really change the overall dynamic of this case, which remains a standoff that neither side is winning.