Archive of posts for category
Featured Posts

Scottish Independence Insta-Symposium: The Legal Terrain Following a Yes Vote for Scottish Independence

by David Scheffer

[David Scheffer is the Mayer Brown/Robert A. Helman Professor of Law and Director of the Center for International Human Rights at Northwestern University School of Law.]

If the Scottish people vote in the majority on September 18th to become an independent nation, then a host of legal issues will descend immediately upon Holyrood, where the Scottish Parliament sits in Edinburgh, and Westminster, the legislative center of the United Kingdom Government in London.  Some of these issues can be overcome if there is a willingness to negotiate in good faith.  Otherwise, obstructionist and stubborn negotiating tactics can result in a bitter fight to the end, which will be 24 March 2016 if Holyrood’s schedule stands for Scotland to break away as a newly-minted sovereign state.

The Edinburgh Agreement of 15 October 2012, signed by First Minister Alex Salmond for the Scottish Government and Prime Minister David Cameron for the United Kingdom, provides the legal platform for the September 18th referendum.  Whatever is decided on that day has the legitimacy required under British law to move forward either with the United Kingdom as a unified country (if there is a majority no vote) or with the emergence of an independent Scotland following separation negotiations between Holyrood and Westminster and the necessary parliamentary acts (if there is a majority yes vote).

Section 30 of the Edinburgh Agreement is critical as to the aftermath, stating that the two governments “look forward to a referendum that is legal and fair producing a decisive and respected outcome.  The two governments are committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.”  That has long been understood to mean that negotiations between Holyrood and Westminster would commence in the event of a “yes” vote for independence.

Yet for months Westminster and the three main UK political parties (Conservative, Labour, Liberal) have waged their “no” campaign with scare tactics premised, it seems, on there being no meaningful negotiations at all.   Their message is that if there is a “yes” vote, then the protectionist shields will rise at Hadrian’s Wall and the remainder of the United Kingdom (rUK) will simply go its own way as the “continuator state,” leaving Scotland to survive or sink on its own.  Nothing could be further from reality, and Westminster knows that.

It will be in the interests of Westminster and the citizens of rUK to work out how to continue prosperous commercial and social relations with the Scottish people and sustain bonds with Scotland as a close ally.  Alienating Scotland with arrogant posturing now—a raw campaign tactic—as well as later during the inevitable negotiations is an irrational game plan for Westminster.  In fact, the tightening polls in Scotland seem to confirm that the bluff is backfiring.

The first legal issue upon which so much else depends centers on the law of state succession—what will be the legal outcome regarding statehood if Scotland and rUK split?  Westminster and many international lawyers insist that the rUK will be the continuator state, thus continuing the status quo in almost all treaty and international organization relations, while Scotland would be cast off as a new state to initiate its own treaty relations, currency, and membership in international organizations—the “clean slate” approach.  Such a punitive view of Scottish self-determination would force Holyrood onto the most arduous pathway towards statehood and presupposes either unnecessarily complex negotiations with no end in sight or no credible negotiations at all.  Westminster’s tactic is built upon a pyramid of presumptions arising from the initial premise of the continuator theory and yet little of which relates to the sui generis character of the Scottish situation, as I have examined elsewhere.

The unique history of the Scottish and English union of 1707 and the fact that since the 1970s we have seen unfold in Scotland a distinctly modern form of self-determination colors this entire exercise.  Nowhere else are the facts even similar regarding this remarkably peaceful and progressively building process of devolution leading to the renewed independence of a once sovereign nation, including the consent of the UK Government to hold such a referendum.  Legal theories on state succession based upon irrelevant practices of decolonization and stale notions of what constitutes customary international law simply do not work here.

Indeed, the modern formulation of state succession framed in the 1978 Vienna Convention on Succession of States in Respect of Treaties for a situation of this character points towards negotiated co-equal successor state status for both Scotland and the rUK during post-referendum negotiations.  If Holyrood and Westminster cooperate in good faith during the negotiations as co-equal successor states, they can create a pathway of mutually agreed and beneficial continuation of various treaty obligations for both states, Scottish membership in the European Union, continued UK membership as a permanent member of the UN Security Council, and a smooth transition for Scotland to join NATO and other international organizations.

Regarding the European Union, if one theoretically were to design the most judicious and EU-compliant path towards internal enlargement, the Scottish experience would set the gold standard.  Scotland is already part of the European Union because it is part of the United Kingdom.  The Scottish people are EU citizens with important rights under EU law.  Given those realities, transitioning to Scotland and the rUK following a “yes” vote on the referendum should be negotiable with Brussels in order to sustain the membership of both nations in the EU.  Surely that would be to the advantage of the European Union.  Caustic and unsubstantiated statements by EU officials and Westminster politicians in the past that relegate Scotland to new applicant status shorn of any existing rights under EU law have been narrow-minded expressions of insecurity.  I recently argued in Brussels, “[Scotland] is truly a sui generis phenomenon within the European Union and efforts to create false symmetries with other sub-state aspirations on the European continent are misleading.”

Of course, much is complicated by Prime Minister Cameron’s intention, expressed on 23 January 2013, to renegotiate parts of the UK’s relations with the European Union and hold a referendum by 2017 to determine continued membership of the UK in the Union. The anti-EU fervor arising from both Conservative and Labour party ranks and manifested in the United Kingdom Independence Party stands in contrast to the Scottish Government’s strong allegiance to the European Union and for sustained EU membership for an independent Scotland.  For rUK negotiators to threaten their Scottish counterparts with outcast status in the European Union while London plots its own withdrawal would be supremely ironic and not easily overlooked.

Each side has a different take on how to proceed with EU membership for Scotland.  The Scottish Government favors amending the Treaty of the European Union (TEU) under Article 48 to create procedures for continued Scottish membership.  This “continuity of effect” assumes transitioning Scotland’s current status as part of the United Kingdom into a newly sovereign status in a fully integrated way within the European Union’s legal, economic, institutional, political and social frameworks.  But this approach requires Westminster to seek such amendments as a willing partner following a yes vote on the referendum.

Westminster and some European Commission officials insist that Scotland would have to apply for membership in the European Union under Article 49 of the TEU just like other new applicants that have never been part of the European Union, like Croatia recently.  There doubtless would result a significant gap in EU membership for Scotland, which might be forced to delay the process until it achieves sovereign statehood status. A legal nightmare may well ensue. If Westminster intends to punish Holyrood following a yes vote, rather than negotiate in good faith, this would do it.

A negotiated formula, however, that essentially melds together procedures of Articles 48 and 49 of the TEU with the support of Westminster in discussions with EU leaders in Brussels and EU member states could provide a reasonable framework for keeping Scotland in the European Union with the least degree of disruption.  This formula would open the way for Holyrood to negotiate what normally would be required under Article 49 for membership, but to do so during the period prior to Scottish statehood with an Article 48 amendment process.  Westminster can facilitate this by joining with Holyrood in such negotiations and thus be the EU member state at the table.  That would reflect the true spirit of Section 30 of the Edinburgh Agreement already agreed to by the two parties.  Westminster’s role is critical, for under the procedures of either Article 48 or Article 49 of the TEU, the unanimous consent of all 28 EU member states would be required to facilitate Scotland’s membership in the European Union.

Perhaps the most divisive issue in recent months has been over the Scottish Government proposal that a currency union be formed between Scotland and rUK to sustain use of the pound sterling by an independent Scotland. There are considerable complexities to any currency option for an independent Scotland, but Westminster has slammed the door on a currency union prior to any negotiations and taunted First Minister Salmond to state his Plan B.

For Salmond to have put forward any Plan B before the referendum would cave into Westminster’s cynical tactic prior to any serious negotiations on currency that could work to the benefit of both nations.  Such bullying by unionists may have chalked up a  few debate points, but it has stirred anti-UK sentiment in Scotland while ignoring the fact that during post-referendum negotiations the Scots have some trump cards of their own.

One of those cards is that if Westminster insists that UK will be the continuator state of the United Kingdom and refuse a currency deal, Scotland can beg off sharing the UK debt and let Westminster shoulder the entire estimated burden of £1.6 trillion by 2016/17. That would comply with the logic of rUK being a continuator state.  Holyrood has offered to accept partial liability on the UK debt but obviously only after negotiations that settle all issues, including division of assets. The markets likely would respect Scotland’s willingness to pay, but also calculate the punitive character of a refusal by Westminster to negotiate currency issues with the result that Scotland’s economy would be unshackled of UK liabilities.  In an effort to reassure the markets, the UK Treasury agreed earlier this year to cover all UK gilts in the event of Scottish independence, but did so assuming that Holyrood still would shoulder a portion of the UK debt.  Not so fast, as Holyrood will have its own demands in such negotiations.

Whatever the outcome on September 18th, the people of Scotland will have acted democratically and peacefully to determine the fate of their nation.  That itself will be a significant achievement under the rule of law.

Guest Post: The Crimes Against Humanity Initiative and Recent Developments towards a Treaty

by Leila Nadya Sadat and Douglas J. Pivnichny

[Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow at Washington University School of Law and the Director of the Whitney R. Harris World Law Institute. Douglas J. Pivnichny is the Whitney R. Harris World Law Institute Fellow at Washington University School of Law and a masters candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.]

Last month, the International Law Commission moved the topic of crimes against humanity from its long-term to its active agenda and appointed Professor Sean D. Murphy as Special Rapporteur. This was a crucial step in filling a normative gap that has persisted despite the development of international criminal law during the past decades:  the absence of a comprehensive global treaty on crimes against humanity. Although this post will not rehearse the reasons a treaty is needed, an eloquent case for a treaty can be found in an important 1994 article by Cherif Bassiouni.

Professor Murphy’s charge is to prepare a First Report, which will begin the process of proposing Draft Articles for Commission’s approval. The Commission first included the topic of crimes against humanity on its Long-Term Programme of Work in 2013 on the basis of a report prepared by Professor Murphy.  This report identified four key elements a new convention should have: a definition adopting Article 7 of the Rome Statute; an obligation to criminalize crimes against humanity; robust inter-state cooperation procedures; and a clear obligation to prosecute or extradite offenders (para. 8). The report also emphasized how a new treaty would complement the Rome Statute (paras. 9-13).

The Crimes Against Humanity Intiative
(more…)

Is the AUMF Limited to the United States Armed Forces?

by Kevin Jon Heller

Bobby Chesney has responded at Lawfare to my most recent post on the CIA and the public-authority justification. It’s an excellent response from an exceedingly smart scholar. I still disagree, but Bobby’s post really hones in on the differences between us. I’ll leave it to readers to decide who has the better of the argument.

I do, however, want to discuss Bobby’s reading of the AUMF. In his view — echoing John Dehn’s comments — it is possible to read the AUMF to authorise the use of force by both the military and the CIA:

I’m not actually agreeing with [Kevin's] AUMF reading. Yes, Section 2′s title refers to the armed forces, but the actual text of section 2 is not so limited (in contrast to the similar section of the 2002 Iraq AUMF, for example, which did refer explicitly and only to armed forces). 

I confess that I find this argument baffling. It’s true that Section 2(a) of the AUMF does not mention the Armed Forces, providing only that “the President is authorized to use all necessary and appropriate force against those  nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11,  2001.” Read in context, however, I don’t see how it is possible to plausibly maintain that the word “force” in Section 2(a) does not specifically refer to force by the United States Armed Forces.

First, the AUMF is a Joint Resolution whose purpose, according to its very first line, is “[t]o authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.”

Second, Section 1 of the AUMF (“Short Title”) says the joint resolution “may be cited as the “Authorization for Use of  Military Force.” We do not traditionally associate with the CIA, even if the CIA occasionally engages in paramilitary activity. (And the “para” in paramilitary is important in this context.)

Third, Section 2 of the AUMF, which contains the “force” language upon which Bobby (and John) rely, is entitled “Authorization For Use of United States Armed Forces.” I know no theory of statutory interpretation nor any canon of statutory construction that would suggest “force” in the first paragraph of a section entitled “Authorization For Use of United States Armed Forces” should be read in context to refer to something other than the use of force by the Armed Forces.

Fourth, Section 2(b)(1) provides that “[c]onsistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.” Section 8(a)(1) of the WPR provides as follows (emphasis mine)…

Three Reasons Why Obama Will Not (and Should Not) Seek Congressional Okay for ISIL Strikes

by Peter Spiro

It looks like President Obama learned his lesson. Last summer he decided to seek Congress’s advance approval for a strike against Syria’s chemical weapons capabilities. Political support for the operation evaporated. Obama looked weak and waffly (the decision was taken on a dime after a 45-minute South Lawn stroll with chief of staff Denis McDonough, almost certainly not vetted through the legal chain of command). Even though the ISIS operation will probably be more significant than what he had in mind for Assad, he won’t be looking for a formal nod from Congress.

In the run-up to the decision (which will likely be announced in his speech Wednesday night) there emerged a nearly unanimous chorus of voices — scholars, lawmakers, commentators — arguing in favor of advance congressional authorization. Among law profs, those pressing the case included Jack Goldsmith, Harold Koh, Ilya Somin, Steve Vladeck and Jennifer Daskal. Tim Kaine and Ted Cruz agreed on this one. The Atlantic’s Conor Freidersdorf had this stinging column pressing for a congressional mandate.

Why Obama is better served bucking this consensus:

1. Authorization would not have been easy to get. Most sane people agree that ISIS presents a threat that needs to be addressed. Prospective military action against the entity enjoys high levels of US popular support.

But that doesn’t mean Congress would have handed Obama the authorization he sought, even on a narrowly tailored basis. Remember, Congress is totally dysfunctional. GOP members facing reelection in November may be loath to do anything that supports the President. The tradition of politics stopping at the water’s edge seems quaint.

If an authorization measure were voted down, Obama would have boxed himself into a corner. Either he would have backed down, with US (and global) security taking the hit. Or he could have persisted with the action on a lonely and legally shaky basis. Although he would surely have framed a request for congressional authorization as constitutionally discretionary (as he did with Syria), that line would have rung hollow in the wake of rejection. This is a context in which actions speak louder than words. The legitimacy of any military action following a failed authorization would have been undermined at home.

And what would Congress’s approval have won him, assuming he got it? Politically, not much. Congress’s favorability ratings are at all-time lows (it is less popular than the U.S. going communist). Anything that can get through Congress now must by definition be so popular that Congress’s approval is itself like a single candle on a crowded cake. That small reward wasn’t worth the significant downside risk of a rebuffed request.

2. Seeking congressional okay would have set a terrible precedent for the future. Leaving aside direct attacks on the United States, there won’t be an easier case for military strikes than against the Islamic State, whose brutality has provoked international revulsion. Most future cases will involve adversaries not nearly so scary. The rise of Rand Paul Republicanism will raise the bar for authorizing any military action, however well advised. Imagine a close case arising during a GOP primary season. If President Obama had asked today, his successors would have had to ask tomorrow.

In that respect, he’s lucky that the Syria CW episode mooted out before it developed any further (it almost certainly would have gone badly). As an incomplete episode it didn’t set down a constitutional precedent. It’s a lot easier to walk back from Rose Garden statement than from a closed constitutional case-file.

3. Obama has ample constitutional authority for not securing congressional authorization. There has been a lot of hair splitting on constitutional war powers lately, the unfortunate byproduct perhaps of the AUMF experience. But the basic dividing line (as nicely argued in the OLC Libya opinion) is between real wars (requiring advance congressional authorization) and everything else (not requiring it). Whatever the ISIL operation ends up being, it is unlikely to be of the former description, involving high risk of significant casualties, huge appropriations that Congress can’t refuse, and escalation. It won’t be “war” for constitutional purposes. I don’t need Article II for this. I’ll take 200+ years of history.

There will be inevitable carping about the refusal to seek the congressional okay here. But that has always been the case, even with respect to quick and painless military action. It will be a little louder than usual this time around. There are the contingencies of this particular operation, which is likely to be complicated and drawn out, with no immediate prospects of erasing the problem. There may also be a broader shift against using force in the wake of Iraq and Afghanistan. But Obama will weather the denunciations, just as have all of his predecessors, validating the constitutional order in the process.

A Response to Bobby Chesney — Part II (Article II)

by Kevin Jon Heller

In the first part of my response to Bobby, I argued (after meandering around a bit) that Title 50’s “fifth function” provision cannot be used to authorise the CIA to kill Americans overseas — a necessary condition of any argument that the CIA is entitled to a public-authority justification with regard to 18 USC 1119, the foreign-murder statute. (Bobby kindly responds here.) I thus ended that post by asking where else that authority might be found.

Which brings me to the second argument Bobby makes: namely, that the President’s authority to permit the CIA to kill Americans overseas derives from Article II, Section 2 of the Constitution, which deems him the Commander-in-Chief of the armed forces. Here is what Bobby writes:

OK, fine, but aren’t covert action programs bound to comply with federal statutes, including 1119?

They sure are, and it is important to the continuing legitimacy of the covert-action instrument that it be subject to American law in this way. But the question remains: Does the covert drone strike program violate 1119 as applied to al-Aulaqi? Kevin argues that it does because the AUMF should be read to exclude CIA, and thus that section 1119 is violated, and thus that the requirement that covert action programs comply with statutes is violated too. I don’t agree, however, for I don’t think the AUMF is the only possible domestic law explanation for the CIA’s role; Article II likely applies here as well, and performs the same function as the AUMF in this respect.

There are two ways to read Bobby’s argument. The first is that the President’s Article II authority simply empowers him to ignore duly-enacted federal statutes like the foreign-murder statute. That is John Yoo’s position, encapsulated so memorably when he said, with regard to the federal torture statute, that the President could authorise an interrogator to crush the testicles of a detained terrorist’s child if he felt it was necessary to protect the United States. I doubt Bobby shares Yoo’s sentiments.

The second way to read Bobby’s argument is as follows: (1) the President cannot rely on Article II to violate duly-enacted federal statutes; but (2) he can rely on his Article II authority to authorise the CIA to kill Americans overseas, which means (3) the CIA has the same public authority to kill that the military has under the AUMF; therefore, (4) the CIA is no less entitled than the military to the public-authority justification with regard to the foreign-murder statute.

That is a much more sophisticated argument, and no doubt the one that Bobby endorses. Unfortunately, once we understand the nature of the public-authority justification, it’s simply a more sophisticated way of arguing that Article II permits the President to violate a duly-enacted statute…

Why Title 50 Does Not Provide the CIA with a Public Authority Justification

by Kevin Jon Heller

As I noted in my previous post, my co-blogger Deborah Pearlstein has suggested that a covert operation authorised by the President under Title 50 of the US Code could function as the CIA’s equivalent to the AUMF in terms of its authority to kill an American citizen overseas. Here is what she has argued:

Here, even if the AUMF was not meant to authorize the CIA to do anything, the CIA has broad authority under Title 50 of the U.S. Code to engage in operations overseas, provided it has relevant Presidential approval and complies with requirements of congressional notification. In other words, I can imagine a straightforward explanation for why such an exception would apply to the CIA as well. That it is not evident from the memo is, I suspect, far more a function of redaction than absence of legal authority.

With respect to Deborah, I don’t think the Title 50 argument works. There is no question that 50 USC 3093 provides the President with considerable authority to authorise “a covert action by departments, agencies, or entities of the United States Government” that he determines “is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States.” But the President’s authority is not unlimited; indeed, Title 50 contains two important restrictions that very strongly suggest the President could not legally have authorised the CIA to kill an American citizen overseas, and particularly not Anwar al-Awlaki.

The first limit is provided by 50 USC 3093(e), which defines “covert action” for purposes of Title 50 generally (emphasis mine):

As used in this subchapter, the term “covert action” means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include 

(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;

(2) traditional diplomatic or military activities or routine support to such activities;

(3) traditional law enforcement activities conducted by United States Government law enforcement agencies or routine support to such activities; or

(4) activities to provide routine support to the overt activities (other than activities described in paragraph (1), (2), or (3)) of other United States Government agencies abroad.

The US government has consistently argued that its drone program, both in Yemen and elsewhere, only targets combatants who are involved in a non-international armed conflict between the US and al-Qaeda. While serving as the State Department’s Legal Advisor, for example, Harold Koh claimed that “as a matter of international law, the United States is in an armed conflict with al-Qaeda and its associate forces,” and that “in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaeda leaders who are planning attacks.” Indeed, the new White Paper, like the previous memorandum, emphasizes (p. 12) that “the frame of reference” for whether the CIA is entitled to the public-authority justification regarding Anwar al-Awlaki “is that the United States is currently in the midst of an armed conflict, and the public-authority justification would encompass an operation such as this one were it conduct by the military consistent with the laws of war.”

There is no question, then, that the US government views the use of lethal force against an American citizen who is “a senior leader of al-Qaida or its associated forces” — such as al-Awlaki — as a “traditional military activity.” But if that’s the case, 50 USC 3093(e)(2) specifically prohibits the President from relying on Title 50 to authorise the CIA to engage in such targeting.

Moreover, even if it could somehow be argued that targeting “a senior leader of al-Qaida or its associated forces” in the “armed conflict” between those forces and the US is not a “traditional military activity,” 50 USC 3093(a)(5) would still prohibit the President from authorising the CIA to kill any such leaders who is an American citizen. Section 3093(a)(5) provides that a Presidential finding “may not authorize any action that would violate the Constitution or any statute of the United States.” The foreign-murder statute, 18 USC 1119, is undeniably a “statute of the United States.” The President thus has no authority whatsoever to authorise the CIA to violate section 1119.

That conclusion, it is important to note, is not affected by whether 18 USC 1119 incorporates the public-authority justification — which I believe it does. In order to claim the justification as a defence to a violation of section 1119, the defendant must obviously have the requisite public authority to kill an American overseas. And 50 USC 3093(e)(2) and 50 USC 3093(a)(5) each independently deny the President the right to bestow that authority on the CIA via a covert-action finding under Title 50.

In short, and contrary to the new White Paper, neither the AUMF nor Title 50 provide the CIA with a get-out-of-jail-free card with regard to 18 USC 1119. So unless there is some other source of the CIA’s supposed public authority to kill Americans overseas — and I can’t imagine what it could be — Anwar al-Awlaki’s killing by the CIA is indeed properly described as murder.

NOTE: Marcy Wheeler offers some similar thoughts here.

Rolling Stone on Chevron’s Dirty Tricks in the Lago Agrio Case

by Kevin Jon Heller

It’s been a while since I’ve blogged about Chevron’s “Rainforest Chernobyl” — the company’s deliberate dumping of more than 18 billion gallons of toxic waste-water into Ecuador’s Lago Agrio region. But I want to call readers’ attention to a blockbuster new article in Rolling Stone that details the wide variety of dirty tricks Chevron has used to avoid paying the multi-billion-dollar judgment against it in Ecuador. (The plaintiffs filed the suit in the US. Chevron demanded that it be moved to Ecuador, where it expected a friendly government to ensure it would win.) Here is my favorite snippet, discussing the $2 million Chevron paid one of its contractors to create fake laboratories the company could use to “test” Lago Agrio field samples:

We don’t know everything about the soil-and-water testing phase of the trial. But we do have hours of recorded conversations between Santiago Escobar, an Ecuadorean living in Toronto, and a Chevron contractor named Diego Borja.

Borja was already part of the Chevron extended family when the company hired him to transport coolers containing the company’s field samples to supposedly independent labs. His uncle, a 30-year Chevron employee, owned the building housing Chevron’s Ecuadorean legal staff. As he carried out his work, Borja collected more than one kind of dirt. In recorded calls to Escobar in 2009, Borja explained how Chevron’s Miami office helped him set up front companies posing as independent laboratories. (Among his Miami bosses was Reis Veiga, one of the lawyers indicted for corruption in the 1997 Texaco remediation settlement with the Ecuadorean government.)

Borja contacted Escobar because he thought his information might be valuable to the other side. “Crime does pay,” he told Escobar. In the calls, Borja suggests Chevron feared exposure and prosecution under the Foreign Corrupt Practices Act. “If [a U.S.] judge finds out that the company did cooked things, he’ll say, ‘Tomorrow we better close them down,’ you get it?” He boasted of possessing correspondence “that talks about things you can’t even imagine … things that can make the Amazons [plaintiffs] win this just like that.” In awe of Chevron’s power, Borja said the company has “all the tools in the world to go after everyone. Because these guys, once the trial is over, they’ll go after everyone who was saying things about it.” Still, the benefits of working with them were great. “Once you’re a partner of the guys,” he told Escobar, “you’ve got it made. It’s a brass ring this big, brother.”

Borja’s brass ring was ultimately worth over $2 million. Sometime around 2010, he was naturalized at Chevron’s expense and moved into a $6,000-a-month gated community near Chevron’s headquarters in San Ramon, California. Why the company finds his loyalty worth so much is hard to say, because Judge Kaplan blocked further discovery. When asked if Borja is still being paid by the company, Chevron spokesman Morgan Crinklaw said, “Not as far as I know.”

“Kaplan gave Chevron unlimited access to our files,” says Donziger, “but allowed them to maintain a complete iron curtain of privilege over everything related to the misconduct of non-attorneys like Borja and its network of espionage operatives.”

I’m skeptical the Lago Agrio plaintiffs will ever receive the justice they deserve — particularly in a US courtroom. But at least articles like this one help illuminate the lengths to which multinationals like Chevron will go to avoid being held responsible for their actions.

It’s Time to Reconsider the Al-Senussi Case. (But How?)

by Kevin Jon Heller

As readers are no doubt aware, Libya has descended into absolute chaos. As of now, there is quite literally no functioning central government:

Libya’s newly elected parliament has reappointed Abdullah al-Thinni as prime minister, asking him to form a “crisis government” within two weeks even as the authorities acknowledged they had lost control of “most” government buildings in Tripoli.

Senior officials and the parliament, known as the Council of Representatives, were forced last month to relocate from the capital to Tubruq in eastern Libya after fighting broke out between the Dawn of Libya coalition, led by brigades from the city of Misurata, and rival militias based at the city’s international airport.

Since then the airport has fallen to the Islamist-affiliated coalition and Tripoli appears to have slipped almost completely out of the government’s grip.

Mr Thinni’s administration said in a statement posted on its Facebook page late on Sunday night that it had lost control of Tripoli and that its officials had been unable to access their offices, which had been occupied by opposition militias.

“We announce that most ministries, state agencies and institutions in Tripoli are out of our control,” said the government. Some state buildings had been occupied by armed groups and staff, including ministers and undersecretaries, had been threatened and prevented from entering, it said.

“It has become difficult for them to go to their offices without facing either arrest or assassination, especially after several armed formations announced threats against them, attacked their homes and terrorised their families,” the statement added.

The collapse of the Libyan government comes less than five weeks after the ICC Appeals Chamber unanimously decided that the case against Abdullah al-Senussi was inadmissible. In its view at the time — to quote the summary of the admissibility decision — “the case against Mr Al-Senussi is being investigated by Libya and… Libya is not unwilling or unable genuinely to carry out the investigation.”

Whatever the merits of the Appeals Chamber’s decision at the time — and they’re limited — the situation on the ground in Libya has obviously rendered it obsolete. It is now impossible to argue that the Libyan government is “able” to effectively prosecute al-Senussi, no matter how willing it might be. The Court thus needs to reconsider the admissibility of his case sooner rather than later.

Fortunately, the drafters of the Rome Statute anticipated just such a situation. Art. 19(10) specifically provides that  “[i]f the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17.” The OTP should submit such a request as soon as possible; whatever hesitation it once had about forcefully asserting the admissibility of the case, there is now no possible justification for not trying to take control of it.

But what about al-Senussi? Can he challenge the inadmissibility decision? It’s a very complicated issue — but I think the best answer, regrettably, is that he cannot…

Did Vladimir Putin Call for the Statehood of Eastern Ukraine?

by Chris Borgen

As the military situation in eastern Ukraine become more violent with the incursion of Russian troops, Vladimir Putin has called for talks to determine the statehood of eastern Ukraine. The Interpreter, a website that translates and analyzes Russian media reports, states that in an interview on Russian television Putin said:

We must immediately get down to a substantial, substantive negotiations, and not on technical questions, but on the questions of the political organization of society and statehood in the south-east of Ukraine with the purpose of unconditional provision of the lawful interests of people who live there.

[Translation by website The Interpreter.]

In its analysis of this somewhat cryptic quote, the Interpreter posits:

It is not clear how Putin envisions the “Novorossiya” entity, but given a presentation by his aide Sergei Glazyev yesterday at a conference in Yalta attended by Russian-backed separatists and European far-right party figures, there is a notion to make the amalgamated “Donetsk People’s Republic” and “Lugansk People’s Republic” a member of the Customs Union of which Russia, Belarus, and Kazakhstan are members.

For more on the Eurasian Customs Union, see this previous post.

As for the rhetoric of an independent Novorossiya, described in Foreign Policy as  the rebirth of a forgotton geopolitical term, Anne Applebaum wrote the following this past week in a grim article on Slate:

In the past few days, Russian troops bearing the flag of a previously unknown country, Novorossiya, have marched across the border of southeastern Ukraine. The Russian Academy of Sciences recently announced it will publish a history of Novorossiya this autumn, presumably tracing its origins back to Catherine the Great. Various maps of Novorossiya are said to be circulating in Moscow. Some include Kharkov and Dnipropetrovsk, cities that are still hundreds of miles away from the fighting. Some place Novorossiya along the coast, so that it connects Russia to Crimea and eventually to Transnistria, the Russian-occupied province of Moldova. Even if it starts out as an unrecognized rump state—Abkhazia and South Ossetia, “states” that Russia carved out of Georgia, are the models here—Novorossiya can grow larger over time.

Applebaum notes that for Novorossiya to move from Putin’s rhetoric to political reality will require more than the actions of the Russian army.  “Novorossiya will not be stable as long as it is inhabited by Ukrainians who want it to stay Ukrainian,” she explains.  Moreover, “Novorossiya will also be hard to sustain if it has opponents in the West.” Further sanctions will likely be the centerpiece of the EU and U.S. response.

But while some would say “international law is useless without sanction,” in this case I believe that economic sanctions are not enough without international legal argument.  For the moment, Russia’s strategy seems to be an amalgamation of stealth invasion and quasi-legal rhetoric. The “stealth”  part of the invasion is to maintain a fig-leaf of deniability and to make the uprising in eastern Ukraine seem homegrown as opposed to Russian-led. This strategy of stealth interlocks with Russia’s rhetoric, a quasi-legal/ nationalist amalgamation that attempts to persuade those who can be persuaded and befuddle those who cannot.

However, we are at an inflection point where an important new argument (the apocryphal “once and future Novorissya” argument, in this case) is being sent up like a trial balloon. Perhaps a more accurate metaphor is the idiom: “send it up the flagpole and see who salutes.” Putin and his advisers are sending the flag of Novorissya, figuratively and literally, up the flagpole.

If the EU and U.S. do not want another South Ossetia or Transnistria, then they will have to actively engage Russia’s arguments over what is “right.”  Consider this statement by Putin this week, explaining why the events in Eastern Ukraine confirm that Russia was correct in its actions in Crimea:

Now, I think, it is clear to everyone – when we look at the events in Donbass, Lugansk and Odessa – it is now clear to everyone what would have happened to Crimea, if we had not taken corresponding measures to ensure that people could freely express their will. We did not annex it, we did not seize it, we gave people the opportunity to express themselves and make a decision and we treated that decision with respect.

I feel we protected them.

If the illegality of Russia’s actions is not stressed, if the denial of Ukraine‘s right of self-determination is not emphasized, then the only thing many will hear is the rhetoric of those trying to slice off successive pieces of Ukraine. That rhetoric, unanswered, can reinforce the beliefs of those who want to dismember Ukraine. For others, it may make it seem as if maybe Russia “has a point” and muddy the waters. In both instances, effective sanctions could be perceived as just another example of might overcoming right.  And, rather than resolving the situation, the seeds for further conflict would be planted.

While effective sanctions enforce norms, clear norms strengthen sanctions.

 

 

Dear News Agencies of the World: China Did NOT Breach Taiwan’s Airspace, Just Its ADIZ

by Julian Ku

Several news agencies (here and here) have suggested that recent reports of Chinese military aircraft entering into Taiwan’s Air Defense Identification Zone  is akin to a territorial incursion.  For instance, J. Michael Cole warns at the Diplomat, “If they were indeed intentional, the latest intrusions could signal a further denigration of Taiwan’s sovereignty….”  In my view, calling ADIZ intrusions a breach of “airspace” and a denigration of “sovereignty” overstates the significance of an ADIZ under international law.

Taiwan’s own government has used the phrase “airspace”, so reporters can’t be faulted for repeating this phrase. But legally speaking, entering an Air Defense Identification Zone is NOT the same as entering a nation’s territorial airspace.  For an island like Taiwan, such territorial airspace would presumably start  end 12 nautical miles from its relevant island coast.  An ADIZ is usually a much larger zone declared by countries in order to allow them to track and identify aircraft that come near their territorial airspace.  If you look at Taiwan’s ADIZ  (in red), you’ll notice it goes well beyond 12 20131209DEN0006Mnautical miles from Taiwan’s coast (in fact, it technically stretches into China itself!).  An ADIZ is adjacent to a nation’s territorial airspace.  Declaring an ADIZ is not by itself illegal because it is not a claim of sovereign control over the airspace.  Of course, nations with an ADIZ usually demand foreign aircraft identify themselves before entering their ADIZ, but nations do not usually claim the right to exclude other nations’ aircraft from their ADIZ, as if it was sovereign territory. (For a recent discussion of the legal issues in ADIZ declarations, see here).

Now, since China has usually been careful to avoid crossing into Taiwan’s ADIZ (or at least parts of Taiwan’s ADIZ), its decision to do so now is interesting and significant.  But it is not a territorial incursion and it is not (technically) breaching “Taiwan’s airspace”.  So news agencies should be careful not to report it as such.

Can the U.S. President Enter into a Legally Binding Climate Change Agreement Without Congress?

by Julian Ku

The New York Times is running a big report today on the U.S. plan to sign a “sweeping” climate change agreement without having to go to Congress for approval or ratification.  Instead of a typical treaty requiring ratification by the Senate, the U.S. has a different more creative strategy.

American negotiators are instead homing in on a hybrid agreement — a proposal to blend legally binding conditions from an existing 1992 treaty with new voluntary pledges. The mix would create a deal that would update the treaty, and thus, negotiators say, not require a new vote of ratification.

Countries would be legally required to enact domestic climate change policies — but would voluntarily pledge to specific levels of emissions cuts and to channel money to poor countries to help them adapt to climate change. Countries might then be legally obligated to report their progress toward meeting those pledges at meetings held to identify those nations that did not meet their cuts.

Jack Goldsmith is already out with a typically smart analysis of this approach, and he concludes the new agreement is intended to sound like a big deal, but will be unlikely to commit the U.S. to do anything meaningful.  I think that is probably right, although I can’t really tell based on the incomplete details in this NYT article.  I think there might be a little bit of domestic legal effect, and may also create an important precedent on what the President can do to bind the US on the international level.

Surely, the President can sign a political agreement that pledges voluntary cuts and to channel money to poorer countries. Such an agreement would have no domestic legal effect until Congress acted to implement the legislation.   But can the President bind the U.S. under international law, even if it has no domestic legal effect?

The President can, in limited circumstances, bind the US under international law via a sole executive agreement.  It has done so especially in the areas of post-conflict settlements such as the famous Algiers Accords that released US hostages and also sent seized Iranian and US assets to an international arbitration tribunal.  US courts have given those agreements limited domestic effect.  But the line between what the President can do via a sole executive agreement and what he must do via a treaty is not completely clear (although there is a line!).  Maybe the President is claiming some delegated authority from the original 1992 Framework Convention, which might bolster his ability to bind the U.S. internationally. I don’t see any obvious basis in that treaty for this delegation, but I suppose experts on the Framework Convention might come up with something.

So I think the President might be able to sign the US up to a binding international agreement on climate change, but it would be pretty unprecedented and its legal effect uncertain.  Such an agreement would be unlikely to have domestic legal effect on its own, but the President could cite the agreement as the basis for executive orders he is already implementing on climate change.  I don’t think it would carry the policy much farther than he is already doing under creative interpretations of the Clean Air Act, but it might provide just a little bit more support for his domestic orders.

I think it will be important to look at the details of the proposed agreement, and to ask the US administration to explain its legal authority for the new agreement.  Will it be the 1992 Framework Convention?  Or is it going to be just the President’s general Article II executive power?  If the latter, this may be an important precedent for future sole executive agreements under the US Constitution.  In any event, President Obama is certainly exploring the outer limits of his Article II powers.

Israel’s Indiscriminate Attack on Shujaiya

by Kevin Jon Heller

On the record, US officials invariably defend even the most indefensible IDF uses of force in Gaza, most often parroting the Israeli line that the IDF does everything it can to spare civilian lives and that Hamas’s use of human shields is responsible for any innocent civilians the IDF does kill.

When speaking anonymously, however, those same officials tell a very different story.

Exhibit A: an absolutely devastating new article in Al Jazeera America about Israel’s destruction of Shujaiya in Gaza, which involved 258 IDF artillery pieces firing 7,000 high-explosive shells into the neighborhood, including 4,800 shells in seven hours. I’m not sure I’ve ever read quite such damning statements about the IDF’s tactics, going far beyond John Kerry’s widely reported sarcastic comment that the attack was “a hell of a pinpoint operation.” Here is a snippet from the article:

Artillery pieces used during the operation included a mix of Soltam M71 guns and U.S.-manufactured Paladin M109s (a 155 mm howitzer), each of which fires three shells per minute. “The only possible reason for doing that is to kill a lot of people in as short a period of time as possible,” said the senior U.S. military officer who spoke with me about the report. “It’s not mowing the lawn,” he added, referring to a popular IDF term for periodic military operations against Hamas in Gaza. “It’s removing the topsoil.”

“Holy Bejesus,” exclaimed retired Lt. General Robert Gard when told the numbers of artillery pieces and rounds fired during the July 21 action. “That rate of fire over that period of time is astonishing. If the figures are even half right, Israel’s response was absolutely disproportionate.” A West Point graduate, who is veteran of two wars and now the Chairman of the Washington, D.C.-based Center for Arms Control and Non-Proliferation, Gard added that even if Israeli artillery units fired guided munitions, it would have made little difference.

[snip]

Senior U.S. officers who are familiar with the battle and Israeli artillery operations, which are modeled on U.S. doctrine, assessed that, based on the rate of artillery fire into Shujaiya overnight Sunday, IDF commanders weren’t precisely targeting Palestinian military formations, as much as laying down an indiscriminate barrage aimed at “cratering” the neighborhood. The cratering operation was designed to collapse the Hamas tunnels discovered when IDF ground units came under fire in the neighborhood. Initially, said the senior U.S. military officer who spoke with me about the military summaries of IDF operations, Israel’s artillery had used “suppressing fire to protect their forward units, but then poured in everything they had — in a kind of walking barrage. Suppressing fire is perfectly defensible — a walking barrage isn’t.”

The Israelis’ own defense of their action reinforced the belief among some senior U.S. officers that artillery fire into Shujaiya had been indiscriminate. That’s because the Israelis explained the civilian casualty toll on the basis that the neighborhood’s non-combatant population had been used as “human shields” because they had been “ordered to stay” in their homes by Hamas after the IDF had warned them to leave.

“Listen, we know what it’s like to kill civilians in war,” said the senior U.S. officer. “Hell, we even put it on the front pages. We call it collateral damage. We absolutely try to minimize it, because we know it turns people against you. Killing civilians is a sure prescription for defeat. But that’s not what the IDF did in Shujaiya on July 21. Human shields? C’mon, just own up to it.”

As I said, stunning stuff. And utterly damning of the IDF — the “most moral army in the world.” It’s just a shame the US government won’t be more open with what it really thinks about the IDF’s actions. Perhaps then Israel wouldn’t feel free to use force against Palestine with impunity.

NOTE: After reading the article in Al Jazeera America, make sure to read Shane Darcy’s important post at EJIL: Talk! discussing a recent decision by Israel’s Supreme Court that upholds the legality of collective punishment.