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National Security Challenges for the Next Administration: AALS Panel Discussion

by Jessica Dorsey

The Association of American Law Schools is hosting its 110th annual meeting, which starts today and goes through Sunday in New York City.

The program is vast, but one item of note takes place Saturday, 9 January, from 10:30am-12:15pm at the New York Hilton Midtown, Gramercy West, Second Floor. At this event, Deborah will be moderating a panel discussion entitled: “National Security Challenges for the Next Administration,” along with panelists John Bellinger, Gil Avriel, Marty Lederman, Hina Shamsi, and Dakota Rudesill. More information on the AALS meeting can be found here.

The description of the panel is as follows:

As the country embarks upon presidential election season 2016, this panel identifies and explores the most important challenges in national security law facing the next administration. While relatively discrete legacy issues from the U.S. response to the attacks of 9/11 remain, the emergence of new security threats from organizations such as ISIL has brought into sharp relief the broader unresolved questions surrounding the domestic and international legal framework for combating violent non-state and quasi-state actors. This panel assembles a distinguished group of experts on U.S. constitutional law, international law, and counterterrorism to consider which legal problem the next U.S. President should place highest on his or her to-do list – and what the President should do to address it.

You Can Prosecute Animal Rights Activists But Not a Right-Wing Militia for “Terrorism”

by Kevin Jon Heller

Earlier today, a right-wing militia seized the headquarters of the Malheur National Wildlife Refuge in Oregon. The group, which is led by Ammon Bundy — the son of Cliven Bundy, who led an armed stand-off with federal agents in 2014 — is demanding that the federal government release Dwight Hammond Jr. and Steven Hammond, two ranchers who are due to report to a California prison on Monday to serve out their sentences for arson. Bundy says the group intends to hold the building “for years” and refuses to rule out using violence if police try to remove them.

There is little question that the militia’s actions qualify as seditious conspiracy. 18 USC 2384 specifically criminalizes “two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspir[ing]… to seize, take, or possess any property of the United States contrary to the authority thereof.” Seditious conspiracy is a very serious crime, one that carries a maximum sentence of 20 years imprisonment.

But what about domestic terrorism? Could the members of the militia be prosecuted as domestic terrorists once the seige is over?

Domestic terrorism is defined in 18 USC 2331(5):

the term “domestic terrorism” means activities that—

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States.

At this point, the militia has probably not satisfied 18 USC 2331(5). Although their activities are clearly “intended… to influence the policy of a government by intimidation or coercion,” it is difficult to argue that the militia has engaged in acts “dangerous to human life,” because the Wildlife Refuge’s headquarters was closed and unoccupied when the militia seized it.

The situation would be very different, of course, if the militia followed through on its threat to use force to repel an attempt by the police to retake the headquarters. Doing so would clearly qualify as domestic terrorism under 18 USC 2331. But here is the problem in terms of actual prosecution: as Susan Hennessy pointed out in an excellent post at Lawfare after the mass murders in Colorado and California, “[d]omestic terrorism does not exist as a substantive offense under federal law.” It is simply an element of other substantive federal offences, such as bribery affecting port security, 18 USC 226 (Hennessy’s example). And none of those offences would seem to cover the militia’s seizure of the Wildlife Refuge headquarters.

The bottom line, then, is that although we could call the members of the militia “terrorists” if they ever engage in acts dangerous to human life, they could not be prosecuted as terrorists. That’s perverse — especially when we contrast the absence of a substantive federal terrorism offence covering the militia’s actions with the existence of a substantive federal terrorism offence designed specifically to prosecute non-violent animal-rights activists: 18 USC 43, the Animal Enterprise Terrorism Act (AETA). The AETA, which was adopted by Congress at the behest of the pharmaceutical, fur, and farming industries, is an absurdly overbroad statute that deems any actions that intentionally damage the property of an animal enterprise to be “terrorism”:

(a) Offense.—Whoever travels in interstate or foreign commerce, or uses or causes to be used the mail or any facility of interstate or foreign commerce—

(1) for the purpose of damaging or interfering with the operations of an animal enterprise; and

(2) in connection with such purpose—

(A) intentionally damages or causes the loss of any real or personal property (including animals or records) used by an animal enterprise, or any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise;

(B) intentionally places a person in reasonable fear of the death of, or serious bodily injury to that person, a member of the immediate family (as defined in section 115) of that person, or a spouse or intimate partner of that person by a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation; or

(C) conspires or attempts to do so;
shall be punished as provided for in subsection (b).

The only “violence” the AETA requires is the violence of ripping up documents or opening up animal cages. Indeed, the AETA has been used to prosecute as terrorists four people who “chalked the sidewalk, chanted and leafleted outside the homes of biomedical scientists who had conducted animal testing” and two young men who “released about 2,000 mink from cages and painted the slogan ‘liberation is love’ in red paint over a barn.” The charges in the first case were thrown out for lack of factual specificity, but both of the defendants in the second case have pleaded guilty and are facing 3-5 years in prison.

It defies logic that there is a substantive federal terrorism offence covering non-violent activists who open mink cages but not one covering a right-wing militia that forcibly seizes a federal building, demands the release of prisoners, and threatens to kill anyone who tries to intervene. But there you have it.

Climate Change and the Syrian Civil War

by Chris Borgen

Scientific American has published an article by John Wendle on how climate change has spurred the conflict in Syria. Wendle writes:

Climatologists say Syria is a grim preview of what could be in store for the larger Middle East, the Mediterranean and other parts of the world. The drought, they maintain, was exacerbated by climate change. The Fertile Crescent—the birthplace of agriculture some 12,000 years ago—is drying out. Syria’s drought has destroyed crops, killed livestock and displaced as many as 1.5 million Syrian farmers. In the process, it touched off the social turmoil that burst into civil war, according to a study published in March in Proceedings of the National Academy of Sciences USA. A dozen farmers and former business owners like Ali with whom I recently spoke at camps for Syrian refugees say that’s exactly what happened.

He tells a story of environmental degradation, ill-conceived agricultural and water-management policies, and their effects:

“The war and the drought, they are the same thing,” says Mustafa Abdul Hamid, a 30-year-old farmer from Azaz, near Aleppo… “The start of the revolution was water and land,” Hamid says.

But the story Wendle writes is about more than Syria:

The refugee crisis will eventually subside, [Richard Seager,a professor at Columbia University’s Lamont–Doherty Earth Observatory] assumes, and the war in Syria will run its course. Nevertheless, he says, the region’s droughts will be more frequent and more severe for the foreseeable future. After closely studying dozens of climate models he and Kelley and their colleagues are convinced that continued greenhouse gas emissions will widen the Hadley cell, the band of air that envelops Earth’s tropics in a way that could further desiccate the lands of the eastern Mediterranean.

These past months many people have written about the Syrian civil war. Many have written about climate change. Wendle’s article considers both the perspectives of farmers who have become refugees and of scientists studying climate change. It is not only describes where we are, but how we got here, and what may be yet to come.

Highly recommended.

UN Recognises Jewish Holiday for the First Time

by Kevin Jon Heller

From CNN:

For the first time in its 70-year history, the United Nations has officially recognized a Jewish holiday.

U.N. employees who observe the Jewish faith will have the day off and no official meetings will take place on this date from now on, according to the Israeli mission to the organization.

Yom Kippur, or the Day of Atonement, considered the most important Jewish religious holiday, will join two of the world’s other monotheistic religions in having one of its high holidays observed by the world body.

Christmas Day, Good Friday, Eid al-Fitr and Eid al-Adha have all been recognized by the United Nations as official religious holidays.

This is an excellent decision on the UN’s part — its recognition of multiple Christian and Muslim holidays but not even one Jewish holiday has never made sense. And in a perfect world, the decision would be greeted with approval by individuals of all political stripes.

But this is Israel, of course, where there is no such thing as apolitical. On the “pro” Israel side, there are factually-challenged editorials like this one, in which the authors argue that recognising a Jewish holiday is somehow necessary to compensate for the UN’s supposed anti-Israel bias:

But over time, Israel has been a target for exceptional mistreatment at the United Nations. A pluralistic democracy facing extremists sworn to its destruction, Israel is routinely condemned by the body’s Human Rights Council, more than any other member state. Israel’s assailants at the United Nations often assert that they respect Jews and Judaism — and reserve their shrill disdain only for Israeli policies and Zionism. But the demonization of Israel calls their motives into question.

And on the “anti” Israel side, there are tweets like this one, bizarrely claiming that the UN is somehow honouring Israel by recognising Yom Kippur and that doing so will somehow increase anti-Semitism:

I expect better, particularly from the “antis.” Those of us who support progressive change in Israel have argued for years that there is nothing remotely anti-Semitic about criticising Israel’s policies and actions. And there is increasing evidence that eliding the difference between the two in order to insulate Israel from criticism has lost much of its rhetorical power. Tweets like the one above risk undermining all the good work we have done.

It’s really pretty simple: the UN is not honouring Israel by recognising Yom Kippur. It is recognising Judaism, one of the world’s major religions, as it has recognised others. And it’s about time it did.

Weaponized Archaeology and Sovereignty Disputes

by Chris Borgen

Underwater archaeologist Peter B. Campbell has a very interesting opinion piece in the New York Times about how archaeological claims are being used as political weapons in sovereignty disputes. He explains:

For decades, global powers have been engaged in a race to exploit lucrative marine resources, from oil to fisheries to control of strategic waterways. But they have faced a challenge: How can a country claim new territory despite the restrictions of the United Nations Convention on the Law of the Sea? It turns out that “historical ties” to resource-rich regions can conveniently help to contravene international law.

At issue is how archaeological research is being injected into political rhetoric on issues such as claims of sovereignty in the Arctic, in the South China Sea, and over Crimea.  Campbell writes:

China’s deputy minister of culture, Li Xiaojie, put it bluntly: “Marine archaeology is an exercise that demonstrates national sovereignty.”

Russia has followed suit. In 2011, when he was prime minister, Vladimir V. Putin made headlines by retrieving two ancient ceramic jars from a shipwreck at Phanagoria, the ancient Greek city that is 10 miles from Crimea. The media cast it as a publicity stunt, but alarm bells sounded within the archaeological community. Mr. Putin’s political allies had invested $3.5 billion in research at Phanagoria, a submerged harbor with Roman-era shipwrecks. And while Phanagoria was the site of Greek colonies, Russian nationalists have adopted its ancient kings as proto-Russians.

For now, these archaeological findings are being used more as ostensible support of political rhetoric rather than as evidence, in the technical legal sense, of title.  Claims of sovereignty are most clearly based on specific treaties, such as boundary delimitation treaties, or broader treaties that set-forth rules for resolving disputes, such as the UN Convention on the Law of the Sea (UNCLOS).

This does not deny that historical state practice can be a component in resolving a dispute. But there are standards for assessing such historical examples. As the Permanent Court of International Justice wrote in the Eastern Greenland case:

a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority.

Another circumstance which must be taken into account by any tribunal which has to adjudicate upon a claim to sovereignty over a particular territory, is the extent to which the sovereignty is also claimed by some other Power.

The ICJ quoted this language at paragraph 134 in its Pulau Ligitan and Pulau Sipadan judgment. In the case of maritime sovereignty claims, the goal would be to turn old shipwrecks into evidence of a continued display of authority, also known as effectivite. Anneliese Guess wrote that Canada’s then-Minister of the Environment said in 2008 that, in regards to the search for shipwrecks in the Northwest Passage:

 We certainly think by establishing a long-standing presence in the Arctic that can enhance issues of sovereignty … Look at the strait (the Northwest Passage) not far from where this ship is….We think every bit of weight we can put behind our case for sovereignty is important. Adding history to that equation can only enhance that case.

While historic state practice can be important, the ICJ’s discussion in Pulau Ligitan is a good example of how difficult it can to make such a claim of effectivite. In that case, the ICJ wrote that the facts must “leave no doubt as to their specific reference to the islands in dispute as such.” (para. 136) In Pulau Ligitan, the ICJ was unmoved by many of the examples of naval activities as proof of claims of sovereignty. How much harder still, with archaeological shipwrecks from a century ago, let alone from Roman times.

Modern international law, with its focus on treaty obligations and effective dates (that draw a bright line making some historical facts less important than others) is not likely to accord much weight to  shipwrecks such as those mentioned by Campbell. (And probably no weight to some of them.) Nonetheless, politicians spin and deploy these archaeological finds in their wars of words. But in the end, as Campbell reminds us,

…archaeology rarely fits simple narratives. In fact, archaeology often demonstrates our shared human past.

A Note About Commenting on Opinio Juris

by Chris Borgen

This is a reminder to all readers and contributors concerning Opinio Juris’ policy regarding comments and posts. The “About Opinio Juris” page explains that:

We encourage civil and respectful dialogue among our bloggers, readers (who may post comments), and guest-bloggers. Our goal is to be both informative and thought-provoking by fostering vigorous intellectual engagement without vitriol. The marketplace of ideas is what we make of it.

[Emphasis added.]

Consequently, Opinio Juris maintains the right to edit or delete any comments that in our view does not meet the forum’s guidelines. This has been exceedingly rare.

One of the strengths of Opinio Juris is that our writers (both the masthead bloggers and our guest writers), commentors, and readers have a wide range of views. That breadth of perspective enriches the conversation. Please be respectful and constructive in your comments.

Guest Post: General Court of the European Union annuls the EU-Morocco Free Trade Agreement on Human Rights Grounds but Forgets Self-Determination

by Nadia Bernaz and Elvira Dominguez Redondo

[Dr Nadia Bernaz is Senior Lecturer in Law and Dr Elvira Dominguez Redondo is Associate Professor of International Law, both at Middlesex University, London UK.]

The 10th of December 2015, International Human Rights Day, was marked by the European Union General Court (EGC) quashing a free trade agreement between the European Union and Morocco, to the extent that it was to apply to the disputed territory of Western Sahara. The judgement is available in French only for the moment.

For the background of this case before UK courts, see the blog posts by David Hart here and Geraldo Vidigal here. The claim was brought by Frente Polisario (the internationally recognised interlocutor of the Saharawi people) against Council Decision 2012/497/UE of 8 March 2012. The original Council decision concerned an agreement between the EU and Morocco over reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products.

The judgement is important for two main reasons. First, the Court found the case admissible, taking a stance on the issue of the legal personality of Frente Polisario. Second, on the merits, the Court considered that while the Council had wide discretion with regard to the conclusion of agreements with third countries, it should have ensured that the EU was not at the risk of indirectly encouraging human rights violations or benefiting from such violations. The Council’s failure to do so, the Court stated, constituted a manifest error of appreciation which justifies quashing the decision. While the Court avoided basing its decision on the right to self-determination, (it did not evaluate the validity of agreements contrary to customary international law) the decision may nonetheless have important implications for the concern of business with human rights.

  1. Misunderstanding the difference between ‘recognition’ of legal status and respect for self-determination

In determining admissibility of the case the Court considered two specific points: (1) the capacity of the Frente Polisario to bring a claim (34-60); and (2) whether the disputed agreement directly and individually affected the Polisario Front.

Geraldo Vidigals in an earlier post claims that

As regards standing, the most striking aspect of the judgment is that the Court accepted the Frente’s entitlement to plead as a ‘moral person’, with the ‘necessary autonomy’ to challenge a decision of the EU legislator (paras. 50-53), without reference to the sui generis character of Frente Polisario or to the unique situation of Western Sahara. This would seem to open the door for other ‘autonomous entities’, even those with no claim to international legal personality, to challenge EU decisions under Article 263 TFEU.

It is unlikely that this case will ‘open the door to other autonomous entities’. The situation of Western Sahara is clear under current international law. It is true that the Court avoids the issue of the legal personality of Frente Polisario, by focusing on whether it is ‘directly affected’ and therefore can bring a claim before the Court (spec. paragraph 46, but also its recognition of UN interlocutor in para. 113). More disappointingly the Court limits its analysis to possible violations of human rights under the EU Charter of Fundamental Rights, with a cursory denial of the relevance of the right to self-determination (paragraphs 202, 203).

As cited in the case under review (paragraph 180) and the Air Transport Association of America and Others v Secretary of State for Energy and Climate Change, (Case C-366/10, 2011, paras 101-111) the European Union is bound by international law, including customary international law. However, to consider customary international law as a benchmark against which the lawfulness of EU acts can be reviewed, the rule should be binding on the European Union, with its content sufficiently precise.

Nonetheless, in this case, the Court fails to apply international law since it does not seem to understand the distinction between the –largely political- problem of recognition of a contested territory, and the respect for the right to self-determination. The Court was satisfied that an agreement with Morocco did not imply EU recognition of title to disputed areas of territory. While the Court makes appropriate references to the relevant UN General Assembly, Security Council resolutions and ICJ decision concerning the Western Sahara, even making explicit reference to obligations under article 73 of the UN Charter, it stops short of discussing self-determination of the Saharawi people under international law.

The Court cites a 2002 opinion of the UN Office of the Legal Counsel stating that signature of contracts concerning exploitation of resources by administering powers of non-self governing territories may have international legality, only if such resources are exploited for the benefit of people on these territories, in their name, and in consultation with them. In other words, in accordance with the principle of permanent sovereignty over natural resources, an integral part of self-determination.

The Saharawi claim is not akin to any ambiguous case of ‘contested territory’. The Western Sahara remains the only African territory on the list of the United Nations Decolonisation Committee. In our view, the kind of agreement under review directly impinges on the right to Saharawi self-determination. As recognised by the International Court of Justice, such a right creates obligations erga omnes (see the ICJ East Timor case, para 102 and Construction of a Wall, paras 88 and 156) and, has arguably acquired jus cogens status (see for instance, commentary here). Therefore, any treaty contravening the right to self-determination of the Saharawi should be considered void in accordance with article 53 of the Vienna Convention on the Law of Treaties.As a consequence other States would be required to refrain from recognising the illegal situation, avoid rendering aid or assistance to the wrongdoing state, and ensuring compliance with international law (all of this again, as contemplated in the ICJ Construction of a Wall case, para 159).

  1. Implications of the case for the field of business and human rights

While avoiding the issue of self-determination and broader international legal frameworks, the Court noted that the protection of fundamental rights of the people of a territory is important enough for the Council to examine it prior to approving an international agreement (para 227). According to the Court (para 228), the Council ought to have studied the implications of the agreement to ensure that it did not violate fundamental rights. The Council contended that having concluded an agreement with a third country, the EU could not become responsible for actions committed by that country, whether or not these actions constitute human rights violations (para 230).

This argument was accepted by the Court, but it highlighted that if the EU allowed the import of products made or sourced in ways that do not respect the local population’s fundamental rights, the EU would run the risk of indirectly encouraging such violations while benefitting from them (para 231). In essence, the Court concluded that the Council implicitly accepted the fact that Morocco’s entry into the agreement also applied to Western Sahara, despite its occupation of that territory remaining disputed under international law, leaving doubt about whether Morocco had the best interests of the Saharawi population in mind (see para. 235, and 244-246).

The judgement impacts situations where trade may violate human rights, raising implications for businesses that engage in such activities, by requiring EU institutions to consider the human rights implications of the EU’s external trade relations. This is in line with the EU Commission’s recognition of the 2011 UN Guiding Principles on Business and Human Rights as the “authoritative policy framework” for the EU. The Guiding Principles are addressed to states and corporations and outline their duties and responsibilities respectively. While these Principles do not apply to international organisations as such, the EU is planning to implement the Guiding Principles, having examined their implications for the EU’s external relations. This is backed by an April 2015 Communication on the EU’s new Action Plan on Human Rights and Democracy.

In conclusion, the EGC judgement is exceptional in terms of acknowledging the rights of the Saharawi people and their implications for third States and International Organisations within an adjudicatory judicial forum. However the EGC missed the opportunity of being the first international tribunal to date, to strike down a treaty on this basis.

 

The Arbitrariness of ICTY Jurisprudence (Specific-Direction Style)

by Kevin Jon Heller

Last week, the ICTY Appeals Chamber reversed the acquittals of Jovica Stanisic and Franko Simatovic, the former head and deputy head of the Serbian secret police under Milosevic, and ordered them retried. One of the two grounds for reversal was the Trial Chamber’s adoption of the specific-direction requirement; in the majority’s view (the vote was 3-2), specific direction is not an element of the actus reus of aiding and abetting.

As Marko Milanovic notes today at EJIL: Talk!, the outcome of the Stanisic & Simatovic appeal was completely predictable, because all three of the judges in the majority — Pocar, Liu, and Ramaroson — were also in the majority in Sainovic, in which the Appeals Chamber first rejected its earlier decision in Perisic to adopt the specific-direction requirement. Indeed, Liu and Ramaroson had each rejected the requirement in Perisic, as well.

But here is what’s interesting: Stanisic & Simatovic was completely predictable only because Judge Meron replaced two judges that were originally assigned to the appeal. The original five judges were Meron himself, Agius, Pocar, Liu, and Khan. Two of those judges were in the majority in Perisic (Meron and Agius) and two, as noted, were in the majority in Sainovic (Pocar and Liu). Assuming that none of those judges changed his mind about specific direction, the deciding vote would thus have been Khan, who had not yet expressed an opinion on the doctrine.

The calculus changed, however, when Meron made the first change — replacing himself with Judge Afande. That change meant that there was now only one judge in favour of specific direction (Agius), two judges against it (Pocar and Liu) and two judges who had not yet taken a position (Khan and Afande). That was still an unpredictable panel, even though it now leaned toward rejecting specific direction.

And then came Meron’s second change: replacing Judge Khan with Judge Ramaroson. That change meant the writing was on the wall, because the lineup now included one judge in favour of specific direction (Agius), three judges against it (Pocar, Liu, and Ramaroson), and one judge who had not taken a position (Afande). So it no longer mattered what Judge Afande thought.

There is no reason to believe anything untoward explains Meron’s changes; after all, he supported specific direction in Perisic. But it’s regrettable that it was so easy to predict the outcome of the Stanisic & Simatovic appeal simply by counting judges — as Marko notes, “this unfortunately exposes some of the arbitrariness inherent in judicial decision-making in borderline cases.” The substance of ICTY jurisprudence should not be decided by which judges the President decides to appoint to an Appellate Bench. (In this regard, the structure of the ICC’s judiciary is vastly superior. At the ICC, all five judges in the Appeals Division hear every appeal.)

My position on the specific-direction requirement is well known, so I won’t rehash it here. But I will end this post by noting that the only unknown quantity in Stanisic & Simatovic, Judge Afande, concluded in his dissent that specific direction is an inherent aspect of aiding and abetting — precisely what I’ve been arguing. Win the battle, lose the war…

China Launches Op-Ed Rebuttal to Philippines’ Arbitration Case

by Julian Ku

The UNCLOS Arbitral Tribunal formed to consider the dispute between the Philippines and China gave China until January 1 to file a response to the arguments made by the Philippines at its most recent merits hearing.  China had not showed up at any of the hearings, nor has it submitted any official written arguments to the Tribunal.   I don’t know if China will file any submissions (don’t hold your breath), but its state-run flagship The People’s Daily has launched an op-ed fusillade this week attacking the Philippines. Perhaps, this is China’s response to the arguments made at the arbitral hearing.

The first editorial, “Grandstanding Cannot Cover Up Illegal Moves”, is focused on vilifying the Philippines’ for bringing this arbitration, and the remarks of its foreign minister Albert F. del Rosario. The criticism is mostly non-legal, accusing Mr. del Rosario of bad faith, speaking untruths, and being an all-around bad guy.  But the oped does contain the germ of a legal argument justifying China’s defiance of the UNCLOS tribunal:

State sovereignty is a core principle in contemporary international law. No force is above a sovereign state. No country, organization or individual could expect China to stand by and allow its interests to be harmed. Here is a piece of advice for people like Mr. del Rosario: Don’t misread the situation. The Chinese government and people are adamant about safeguarding China’s rights and interests in the South China Sea. All calculating moves against that would end up in failure.

The second editorial, China’s Sovereignty over the South China Sea Islands Brooks No Denial, offers more of a legal and factual argument.  Interestingly, the editorial relies heavily on the legal force of the 1943 Cairo Declaration and the 1945 Potsdam Declaration as the basis for China’s South China Sea claims over the disputed Spratly/Nansha Islands.  The theory here is that the Spratly/Nansha islands belonged to China, and that Japan forcibly occupied them during WWII.  Cairo and Potsdam required Japan to return all “stolen” territories, ergo, the South China Sea islands go back to China.

The Philippines (apparently) argued at the merits hearing that the Nansha Islands were “terra nullius” and were not included in the “stolen” territories that Japan had to return to China.  Moreover, the Philippines argued that the Cairo and Potsdam Declarations were not legally binding.

China responds with a factual claim (China has always had sovereignty over the islands) as well as legal claim (the Cairo and Potsdam Declarations are legally binding). This latter argument is not precisely accurate, although it is true that Japan promised to comply with Potsdam in its surrender.  But none of this changes the fact that neither Cairo nor Potsdam say anything about the Spratlys/Nansha specifically, and seem a weak legal basis for China’s claims to those islands.

In any event, the editorial is largely rhetorical rather than legal. It concludes by rallying the Chinese people against mysterious international forces threatening their sovereignty:

[T]he determination of the Chinese people to safeguard its territorial integrity is as firm as a rock. Only the Chinese people have the final say when it comes to China’s territory. Any attempt to negate China’s sovereignty, rights and interests through a so-called “arbitration award” will be nothing but wishful thinking, just like flowers in a mirror and reflection of the moon in water. By going back on its own words and confusing the concepts for the purpose of territorial expansion, the Philippines will only end up bringing disgrace on itself.

Gotta love the metaphors, although I doubt very much the Arbitral Tribunal will be in any way moved by them.

Reflections on the Paris Conference

by Daniel Bodansky

[Dan Bodansky is the Foundation Professor of Law and Faculty Co-Director of the Center for Law and Global Affairs at the Sandra Day O’Connor College of Law at Arizona State University. He was in Paris last week for the climate change negotiations. This is his seventh and final post regarding the conference. Professor Bodansky has consulted for the government of Switzerland and the Center for Climate and Energy Solutions (C2ES) in relation to the Paris Summit. However, he is writing in his personal capacity and the views expressed do not necessarily represent those of the Swiss government or C2ES.]

The dust has barely settled on the Paris conference, but already it has prompted an avalanche of comment – and there will be much more written, of course, in the coming weeks and months. For a summary of the conference results, see the report by C2ES. The following are a few more personal reflections.

Copenparis

Invidious comparisons of the Copenhagen and Paris conferences have been a staple of commentary. Copenhagen was a disaster and Paris a triumph. That is the usual line.

But, in many ways, Paris merely formalizes and extends the bottom-up paradigm to which the 2009 Copenhagen Conference gave birth. Indeed, most of the key elements of the Paris Agreement can be found in the Copenhagen Accord:

  • The goal of holding global warming below 2° C.
  • The system of national pledges to reduce emissions (referred to in the Paris Agreement as “nationally determined contributions”).
  • The non-binding character of these contributions, and the reliance on transparency rather than legal enforcement to promote accountability and effectiveness.
  • The shift away from the binary approach to differentiation that was at the heart of the Kyoto Protocol, towards a more flexible approach that encompasses all countries.
  • The pledge to mobilize climate finance from public and private sources (with a target figure of $100 billion specified in the Paris decision text but not the agreement itself).
  • And, perhaps most importantly, the extension of the regime to address the vast majority of global emissions, rather than focusing only on the emissions of “developed” countries.

In essence, what the Paris Agreement does is tie a treaty ribbon around these key elements of the Copenhagen Accord.

To be sure, the Paris Agreement does not simply recapitulate the Copenhagen Accord; it represents a progression down the Copenhagen path. The Paris Agreement builds on Copenhagen in three important respects.

Differentiation – First, it creates a more common system for all countries than the Copenhagen Accord. Copenhagen still retained elements of the binary approach to differentiation of the Kyoto Protocol, with distinctions drawn in various provisions between Annex I and non-Annex I parties. In contrast, the Paris Agreement completely abandons the Annex I/non-Annex I bifurcation. Most of the commitments in the Paris Agreement apply to all parties, including the commitments to formulate, communicate and update NDCs, and to submit the information necessary to track progress in implementing NDCs. Instead of the binary system of MRV in Copenhagen, with international assessment and review (IAR) for Annex I parties and international consultation and analysis (ICA) for non-Annex I parties, the Paris Agreement provides for a common system of reporting and review, with built-in flexibility to take account of different national capacities and circumstances. In addition, while the financial commitments of developed countries are reaffirmed, the Paris Agreement enlarges the donor base by encouraging other countries to provide financial support.

Durability – Second, the Paris Agreement gives the Copenhagen architecture a more durable character, both by putting it in treaty form and by calling for successive NDCs every five years, to be informed by periodic global stock-takes. The Copenhagen Accord addressed only the period up until 2020, through a one-off pledging process. The Paris Agreement, in contrast, establishes an ongoing regime of indefinite duration.

A rule-based structure – Finally, the Paris Agreement has a hybrid architecture, supplementing the bottom-up system of NDCs with internationally-negotiated rules to introduce some discipline into the national pledging process, which had been something of a free-for-all in Copenhagen. For example, the agreement requires parties to provide the information necessary to ensure that their NDCs are clear and transparent and to track progress in implementation, and provides that NDCs are to become progressively more ambitious over time.

Why Did Paris Succeed? Process and Product

In every important respect, the Paris Agreement moves away from the positions of those that opposed the Copenhagen Accord (or failed to support it the final night when the conference unraveled) and towards those that supported it. The Paris Agreement is less differentiated, provides for stronger transparency, and has a stronger legal form than Copenhagen. So why was Copenhagen rejected and Paris accepted?

Some point to the deft diplomacy of the French, and this certainly played a role. But I think it is overstated.   In Copenhagen, the Danish presidency was systematically undermined by those who wanted the conference to fail. Before the conference had even begun, they leaked the Danish negotiating text; then, during the conference, they repeatedly blocked attempts to convene a smaller group to work out the agreement, arguing that such a group would be undemocratic and untransparent – even though “friends of the chair” groups have a long pedigree in the UNFCCC process and had been the primary means of resolving crunch issues at virtually every COP prior to Copenhagen.

Of course, the Danes created openings for those who wished to raise procedural objections, most importantly, by not using the text from the official U.N. negotiations as the basis for their compromise text. The French learned from this mistake. From early on, they insisted that they did not have a separate text in their back pocket and would work with the negotiating text emerging from the ADP. That helped defuse suspicions and allowed countries to feel that they had ownership of the Paris Agreement.

But if countries had wished to raise procedural objections in Paris, they still had opportunities to do so, since in many ways the Paris endgame was even less transparent than Copenhagen. Rather than convene a broadly representative “friends of the chair” group, as the Danes tried to do, the French presidency held a series of consultations with individual countries during the final day and night, and individual delegations and groups of delegations met informally with one another. Virtually no one knew who was meeting with whom, and where the text stood. The result of this fluid, ad hoc process was a text containing new provisions of unknown provenance, which most delegations saw for the first time when it was presented to them in final form on Saturday afternoon, hours before the end of the conference.

Why did countries accept this final text, rather than raise procedural objections? To say that they did so because they liked and trusted Minister Fabius and wanted to reward his excellent job chairing the conference would trivialize the issues at stake. Yes, the trust he engendered helped, but it was not the main reason why Paris succeeded. The explanation instead lies in three factors:

First, while the Copenhagen architecture had been new in 2009, countries had become familiar with it by the time the Paris conference was held. After failing to gain acceptance in Copenhagen, it had been largely adopted the following year in the Cancun Agreements, and was reflected in the decisions leading up to Paris. So the foundation of the Paris Agreement had already been laid. Countries knew at least the broad outlines of what they were getting.

Second, the positions of several key developing countries, including China and Brazil, had evolved considerably.   In Copenhagen, they still hoped for an indefinite continuation of the Kyoto Protocol; indeed two years later, in Durban, adoption of a second commitment period under Kyoto was a precondition for agreement to begin the Paris negotiations. Although no decision was ever formally made not to continue Kyoto, everyone seem to have accepted by Paris that the next phase of the climate change regime would be a single agreement applicable to all parties. The joint announcement by the United States and China in fall 2014 heralded this shift, and gave many observers confidence that Paris would succeed where Copenhagen had failed. In Paris, the Kyoto Protocol was the dog that didn’t bark, and it looks like it will now go gently into the night.

Finally, expectations for Paris were much more realistic than Copenhagen.   Leading up to Copenhagen, it was obvious to close observers that countries would not be able to reach a legal agreement. But most people expected a legal agreement and took this as the benchmark of success, so it was easy to portray Copenhagen as a failure.

For Want of a “Should” the Paris Agreement Was Almost Lost

The end game of COPs is always a process of trench warfare, in which virtually every word is fought over, and gains and losses are measured in commas and brackets. One has to be a COP-ologist, familiar with the subtle history and nuance of every provision, to follow the to and fro.

For international relations scholars who wonder whether international agreements have any effect, the obsession with words may seem peculiar. But at least sometimes they matter.

This was particularly true of the last issue to be resolved in Paris: whether the provision that developed countries undertake absolute, economy-wide emission targets (Article 4.4) would be a “shall” or a “should.”  The ability of the United States to join the Paris Agreement hinged on which word was chosen, so the issue could not have been more consequential. Arguably, if the provision said “shall” and hence represented a legal commitment, then Senate or Congressional approval would have been required for US participation, whereas if the provision was a “should,” then the Paris Agreement could be accepted by the President as a presidential-executive agreement. Although the issue first erupted publicly the final afternoon of the meeting and delayed the closing plenary by more than an hour, reportedly it had featured prominently in the negotiations for some time and had consistently been resolved in earlier drafts in favor of “should.” How the word “shall” appeared in the final text presented on Saturday afternoon is a bit of a mystery. But, in any event, the issue was finally resolved through a Secretariat statement that use of the word, “shall,” was a “technical” error, and that “shall” would be replaced by “should.” A gasp went through the room when the Secretariat read the change, but no one raised an objection, and Fabius gaveled the agreement through by acclamation.

And the Show Goes On

The Paris conference gave new hope to the UN climate change process. But much remains to be done. Countries were able to agree only to the basic structure of the new climate change regime – the cycle of NDCs, reporting, review, stocktaking, and updating. Now, they must elaborate more detailed rules for how the Paris Agreement will work in practice – rules for reporting and review, international emissions trading, and a host of other issues.

If the Paris Agreement represented a true consensus on a new paradigm, then the next phase of the negotiations might be a more technical one. But I think that many developing countries accepted the move away from binary differentiation only reluctantly. And if twenty years of following the climate change negotiations has taught me anything, it is that nothing is ever fully settled; countries constantly push to regain ground that they had previously ceded.

The Paris Agreement is a particularly important moment in the ongoing process of climate negotiations. But it is not the end. At least for the foreseeable future, the UN climate change regime will likely remain a full employment agreement for climate negotiators.

Is the Paris Agreement Historic?

by Daniel Bodansky

Paris

[Dan Bodansky is the Foundation Professor of Law and Faculty Co-Director of the Center for Law and Global Affairs at the Sandra Day O’Connor College of Law at Arizona State University. He is in Paris for the climate change negotiations. This is the sixth in a series of updates both from the U.S. and from Paris. Professor Bodansky has consulted for the government of Switzerland and the Center for Climate and Energy Solutions (C2ES) in relation to the Paris Summit. However, he is writing in his personal capacity and the views expressed do not necessarily represent those of the Swiss government or C2ES.]

COP-21 adopted the Paris Agreement (.pdf) at around 7:30 pm on Saturday night, a remarkably punctual conclusion by COP standards. There was a bit of drama at the end, over a “should” vs. “shall” in one of the provisions (more on that tomorrow), and the final plenary waited for more than an hour while the French presidency, the United States and Brazil tried to work it out. But there was none of the chaos and grandstanding that usually characterizes the end game of climate conferences.

How should we evaluate the Paris Agreement? Certainly, it satisfied the rather modest criteria of success I identified before the conference began. It is a solid outcome, and the French team that led the conference and the negotiators who worked round the clock to finalize the agreement can feel proud of their achievement. Compared to past climate conferences, the Paris conference is definitely cause for celebration.

But is the Paris Agreement historic, as speaker after speaker last night declared? If we focus only on the agreement’s relatively spare contents, it seems hardly the stuff of history. Yes, the agreement does some positive things: it requires countries to put forward “nationally determined contributions” (NDCs) – that is, pledges about what they will do to reduce emissions; it provides for transparency and review, to hold countries accountable for what they say; and it provides for a global stocktaking every 5 years and a process to update NDCs, in order to drive greater ambition over time. But one shouldn’t oversell these results. The NDCs put forward pre-Paris fall far short of putting the world on a pathway to holding temperature change to below 2° C. Countries’ NDCs are not legally binding. There is little new in the agreement on adaptation and finance. And the provisions regarding transparency and review are skeletal, and will need to be fleshed out by subsequent decisions.

Still, despite its relatively modest substance, the Paris Agreement is potentially pivotal, because it completes the paradigm shift from the bifurcated world of the Kyoto Protocol, which rigidly distinguished between “Annex I” and “non-Annex I” countries, to the common global framework that began to emerge in the Copenhagen Accord. The world has changed a great deal from 1992, when the UN Framework Convention on Climate Change was adopted and Annex I defined. Many of the world’s richest countries, like Singapore and Qatar, are still considered “developing” under the Convention’s outdated annexes. And, more importantly, most of the growth in greenhouse gas emissions over the next century will occur in “developing” countries. So reorienting the UN climate change regime to make it truly global is essential to solving the climate change problem.

Getting there wasn’t easy. Many developing countries were extremely reluctant to give up the deal they had gotten in Kyoto. That’s one of the reasons why the negotiations in Paris were so difficult. (Other reasons include the reluctance of donor countries to provide more finance and the need for the US to avoid commitments that might require Senate or Congressional approval.) In order to achieve a common approach, the US and other western countries had to accept somewhat limited provisions on transparency and updating. But this was a small price to pay, if the Paris agreement finally puts the climate regime on a broad-based, durable footing, which can be progressively strengthened over time. If that happens – and, of course, only time will tell – then the Paris agreement will merit the accolades that were showered on it today.

Transitional Justice and Judicial Activism Symposium: Closing

by Ruti Teitel

[Ruti Teitel is the Ernst C Stiefel Professor of Comparative Law, New York Law School and the author of Globalizing Transitional Justice (OUP paper2015).]

I have learned a great deal from the thoughtful responses to my article (.pdf) by the participants in this symposium. Dinah PoKempner is correct to say that my article doesn’t address the merits of a “right of accountability” as such but rather looks to how the move to judicialization and application of human rights law interacts with political and other domestic processes of transition. She speculates that “the judicial recognition of such duties is unlikely to narrow the ambit of transitional justice.” Clearly more research here is needed to see how these processes interact: one could conclude that it might well engage in constructive way with transition. Dinah concludes that the problem is that there is too little in the way of human rights law associated with the transition, rather than too much. The question here may be less the ambit of the right to accountability in itself than the nature of the remedies that tribunals impose, and their relationship to the domestic processes of transitional justice.

One example, which I discuss in my article is, is Goiburu, where the Inter-American Court required that Paraguay’s create a museum, which would honor the victims of human rights abuses in the conflict of the past. Such a remedy arguably risks preempting truth processes where all sides the conflict have an opportunity to address narratives of truth. While Dinah concludes that “(t)he repertoire of transitional justice is likely to remain broader than the jurisprudence of human rights courts, which serve a different end, and a different pace” from its very inception the Inter American Court of Human Rights has been drawn into the issue of accountability relating to transitions.

On the other hand, Cesare Romano suggests as an implication of my analysis the notion that international courts exercise discretion in taking jurisdiction, based on the nature of the issues at stake in the dispute, and the extent to which its underlying character is political. Drawing upon the current peace deal in Havana between Colombia and the FARC, which does not contemplate a maximalist approach to justice, Cesare raises the question of whether such a deal would withstand scrutiny given the jurisprudence in my article. He argues that the” time has come to start considering the merits of allowing international adjudicative bodies, like the various international human rights courts, and quasi-adjudicative bodies, like the Inter-American Commission and the Human Rights Committee, to pick and choose their cases.”

At present they have no such choice, Cesare continues:

Faced with inopportune cases, international adjudicative bodies too often end up compromising their legitimacy. They stall, dither, and, eventually, render flawed decisions that try to square the circle and appease everyone but end up appeasing no one. And when they take advantage of the little leeway they have and manage to dodge the case, they are open to criticism because of the lack of transparency about the considerations that have been weighted.

His proposal that international tribunals would have discretion to refuse cases say along political question lines is very interesting. No doubt, where a tribunal is long established and has acquired considerable legitimacy and recognized independence this could work. In other instances, where there is a greater fragility, the result might be undue political pressure on a tribunal not to adjudicate in controversial cases. The concern is that since transitional justice issues involve both law and politics that genuine legal disputes would be screened out due to political questions and the right of accountability might well be elided altogether.

Chandra Sriram questions the use of the term “crossjudging” to denote the influence of the jurisprudence of one tribunal on another.

In my view “cross-judging” is a broader notion than transnational judicial dialogue or cooperation because it can denote the use by a tribunal of another’s jurisprudence in the manner of simply drawing on the relevant normative material, i.e. without networking or any interaction between the judges. In this sense “cross-judging” points to a rich universe of case law in the international domain that is relevant, whether or not tribunals or judges choose to interact explicitly.

Chandra also makes several observations that to go issues of state responsibility, a focus of international law/ she underscores an issue at the heart of my article which goes to accountability for disapprearances where there is often blanket denial : “Judgments have relied on a mixture of state responsibility for direct action by its agents, and of state inaction. “ She invites me to expand on this issue “particularly in light of two challenges which confront international criminal and transitional justice: the role of non-state actors in serious abuses, and modalities of interpreting complicity and joint criminal enterprise “

Kristen Boon’s post addresses “the undercurrents of state responsibility” raised by my article.
Boon writes:

As conceptualized in her article, the right to accountability is a primary rule of international law that is based in treaty law, and particularly the right to life. It is also connected to other sources such as the International Convention for the Protection of All Persons from Enforced Disappearances, and Article 7 of the Statute of the ICC. There is, of course, no “right to accountability” as such.

She rightly notes that the emergence of the norm of right to accountability doesn’t settle but continues to create challenges re secondary rules particularly regarding attribution. I agree. One issue for instance is whether there might be attribution where a state egregiously fails to investigate alleged human rights abuses over a long period of time, simply foreclosing accountability. In some circumstances, could one draw the inference that, in doing nothing to address the wrongfulness of the conduct that the state is adopting or acknowledging that conduct as its own within the meaning of Article 11 of the ILC Articles. This is just to illustrate that the question of attribution cannot be reduced to considerations simply of state “control” when we are dealing with the right to accountability