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Multi-Blog Series: Locating the Geneva Conventions Commentaries in the International Legal Landscape

by Jean-Marie Henckaerts

For the first episode in the Multi-blog series on the Updated Geneva Conventions Commentaries, the Humanitarian Law & Policy Blog has published Locating the Geneva Conventions Commentaries in the International Legal Landscape, by Jean-Marie Henckaerts.

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View of destruction in downtown Homs, Syria. © Jerome Sessini/Magnum Photos for ICRC

Jean-Marie is the head of the unit in charge of the update of the ICRC Commentaries on the Geneva Conventions of 1949 and their Additional Protocols of 1977.

To kick off the series, Jean-Marie addresses critical questions surrounding the commentaries such as: Where do the ICRC Commentaries fit into the legal landscape? What are the rules governing treaty interpretation and how do they operate in the area of IHL? Where does the ICRC’s legitimacy to interpret the Geneva Conventions stem from?

Read the full post on the ICRC’s Humanitarian Law & Policy Blog.

This series is brought to you by ICRC’s Humanitarian Law and Policy Blog, Intercross and Opinio Juris.

Implications of the 30th Ratification of the International Criminal Court’s Crime of Aggression Amendment by Palestine

by Jennifer Trahan

[Jennifer Trahan is Associate Clinical Professor, at The Center for Global Affairs, NYU-SPS, and Chair of the American Branch of the International Law Association’s International Criminal Court Committee. The views expressed are those of the author.]

A significant event happened quietly at the UN on June 27: Palestine deposited the thirtieth instrument of ratification of the International Criminal Court’s crime of aggression amendment, with 30 ratifications being the required number for activation. However, one more vote to activate the amendment, to occur after January 1, 2017, is required by the ICC’s Assembly of States Parties for the ICC to be able to exercise jurisdiction. Thus, Palestine’s deposit did not cause the amendment to become operational, although it brought it a step closer to the activation vote planned for December 2017.

There may be some confusion on the meaning of Palestinian ratification among those not steeped in the jurisdictional nuances of the crime of aggression amendment negotiated in 2010 in Kampala, Uganda. Although one might think that this is all about the Palestinians trying to create jurisdiction over Israel vis-à-vis the crime of aggression, that is not how it will work.

The crime of aggression amendment has a different jurisdictional regime than what currently exists under the ICC’s Rome Statute concerning the crimes of genocide, war crimes and crimes against humanity. If a national of a non-State Party (e.g., Israel) commits any of those crimes in the territory of a State Party, there would be ICC jurisdiction.

The crime of aggression amendment — whether for good or ill (depending on one’s perspective) —per 15bis(5) keeps crimes committed on the territory of, or by the nationals of, non-States Parties entirely out of its jurisdiction for purposes of State Party and proprio motu referrals (article 15bis). This means that Israeli nationals or crimes committed on Israeli territory will be outside the ICC’s crime of aggression jurisdiction. This then has a bizarre consequence here – that Palestine can ratify the crime of aggression amendment, not “opt out” of jurisdiction (something a State Party can also do per 15bis(4)), and, even after the crime activates, the ICC still could not prosecute Palestinian nationals who commit aggression against Israel, since Israel is a non-State Party. A Handbook compiled by some of the Kampala drafters clearly states: “Non-States Parties are thus excluded both as potential aggressor and victim States.” The crime of aggression amendment thus has significant jurisdictional loop-holes, and will create quite a narrow jurisdictional regime, even once activated. Stated more positively, it creates a consensual regime.

While activation also will activate ICC jurisdiction if the U.N. Security Council makes referrals (under article 15ter), it is considered unlikely that the US would permit alleged Israeli aggression to be referred.

So, the 30th ratification brings the world one step closer to having crime of aggression jurisdiction activated before the ICC, but it does not have direct ramifications for Israel – whether that was the Palestinian goal or not.

At this point, the reader may well wonder – is this Kampala amendment worthwhile with all these jurisdictional loopholes? I will argue it is: activation of the crime will undoubtedly cause states to take pause and ponder more seriously the potential consequences of starting an illegal war, and this is a good thing – even if ICC jurisdiction will not cover the specific case in question; also, states may implement the amendment into their domestic laws, and that may create jurisdiction – giving further pause to states inclined to commence an illegal war. The goal of course is not to generate ICC cases, but to influence state behavior positively.

The crime of aggression, of course, is hardly a novel concept. It criminalizes what is already illegal under article 2(4) of the U.N. Charter, and is similar in concept to the prosecutions of the International Military Tribunal at Nuremberg, which prosecuted war of aggression. In fact, states were working already over 100 years ago on this concept, when in 1913 they founded the “Peace Palace” in The Hague, Netherlands — in an attempt to have states litigate and arbitrate over issues of war, rather than go to war.

A few states have concerns about activation — the US for example, although it too as a non-State Party is exempt from jurisdiction vis-à-vis its nationals and crimes on its territory. Yet, the process is proceeding, with the 30 ratifications accomplished, and several other States Parties in the process of ratifying the amendment. US concern that humanitarian intervention would be criminalized may be something of a “red herring” – first, the US does not appear to have any clear and consistent policy of humanitarian intervention (for instance, as the UK has) and second, because, as at least most scholars seem to agree, humanitarian intervention would not be covered by the crime, as it would not constitute a “manifest” Charter violation. (The crime has a significant “threshold” in requiring that there be a “manifest” Charter violation [.pdf]; this means that only very serious cases that are unambiguously illegal , could be prosecuted.) The crime of aggression, in these ways, is rather conservative — having both jurisdictional loopholes and this high threshold.

There is still a chance, that, at some point, the ICC judges will find that Palestine is not a “state,” and thus was incapable of ratifying the Rome Statute, and similarly incapable of ratifying the crime of aggression amendment. (Judges always have jurisdiction to review their own jurisdiction – so regardless of the UN’s acceptance of the instruments of ratification, the ICC Judges could view the issue differently.) This would have little impact on the process of activating the crime, since several ratifications are in the pipeline, and will undoubtedly happen prior to December 2016. (There must be a year’s delay after the 30th ratification, for activation, along with the ASP vote).

Overall, while the Palestinians may have hoped to make a strong political statement, what the ICC crime of aggression tries to do is take the issue of aggression more out of the political process and into judicial hands. How one feels about this may depend on one’s confidence in the ICC, which, despite some setbacks, has gradually been proving itself to be a responsible, judicial institution, warranting confidence and support.

Avoiding a Rush to the Exit – Article 50 and the UK’s Withdrawal from the EU

by Larry Helfer

[Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University and a permanent visiting professor at iCourts: Center of Excellence for International Courts at the University of Copenhagen.]

As the world reacts to the shock of the Brexit referendum, international lawyers are turning their attention to the mechanics of Britain’s departure from the EU.  Article 50 of the Lisbon Treaty – the clause governing withdrawal – is now front page news.  A state’s decision to leave any international organization raises thorny questions of law and politics.  As I explain below, Article 50 answers some of these questions for withdrawals from the EU, but leaves many others unresolved.

The basics of Article 50

EU law was originally silent as to whether a state could leave the Union, generating debate over whether there was an implied right to exit.  Article 50(1) settles this issue, providing that “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”

Under Article 50, the decision to quit the EU is not self-executing, nor does it have immediate effect.  Rather, the exiting country must first “notify the European Council of its intention” to leave, which triggers a process for negotiations over withdrawal.  The hope, set out in Article 50(2), is that the remaining EU members and the departing nation will “conclude an agreement … setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.”  That agreement must be approved by a “qualified majority” of the Council (20 of the 27 remaining EU members), by the European Parliament, and by the UK itself.

Article 50’s third paragraph specifies that the Lisbon Treaty (and, by implication, all other EU laws) “shall cease to apply” to the exiting state on the date the withdrawal agreement enters into force.  If no agreement is reached, EU membership ends “two years after the notification” of withdrawal – unless the Council and the UK unanimously agree to an extension.  Once the UK has officially departed, it can rejoin only by following the Lisbon Treaty procedures applicable to states seeking admission to the EU for the first time.

The least worst outcome – bargaining for an orderly withdrawal

By setting the ground rules for Britain’s withdrawal, Article 50 is already shaping talks between London and Brussels over the terms of the UK’s exit.  The effects can be roughly divided into three time periods:  the pre-notification period, the negotiations phase (what one reporter waggishly calls the UK’s departure lounge), and the post-exit relationship between the Britain and the EU.

Brexit supporters did not wake up to an EU-free Britain on the morning after the referendum.  The UK is still a fully-fledged member of the Union – and it will remain so if the British government does not formally notify the European Council of its intent to withdraw.  Article 50 says nothing about how, when or by whom such notification is to be made.  Presumably, notice would be given by the Prime Minster.  Before the vote, David Cameron stated that he would inform the European Council “straight away” after a “leave” vote.  But on Thursday he announced that notification would be given by his successor, who will take office by October 2016.

Why the change?  Having campaigned against Brexit and lost, it is not surprising that Cameron wants someone else to pull the trigger on the UK’s withdrawal and squelch any campaign to block withdrawal – a possibility raised by Scotland’s First Minister Nicola Sturgeon.  But even fervent British sovereigntists would be advised to support some delay in notifying the Council.  So long as the UK has not fired the starting gun on the two-year exit clock, it has the upper hand in negotiations with the other 27 EU nations.  Britain keeps both the benefits and the burdens of EU membership while the terms of its departure are hammered out.  It can’t be forced to leave the Union (or can it? – see below) unless those terms are to its liking.

Once notice is given, however, the advantage shifts to the continent.  If Britain and its former EU partners do not reach a deal within 24 months – or unanimously agree to extend negotiations – the UK is out.  A divorce that is finalized while the spouses are still squabbling over custody of the children and the division of marital property is messy and painful.  The equivalent for a non-negotiated Brexit – the sudden re-imposition of barriers to free movement of capital, goods and labor – is an outcome that even diehard British nationalists should want to avoid.

How long can the UK defer notification?  Article 50 doesn’t say, but politics rather than law will almost certainly provide the answer.  Both pro-Brexit voters and EU leaders are unlikely to oppose a modest delay.  But the uncertain economic and political fallout of a protracted British withdrawal will push both sides to the bargaining table regardless of when the UK gives notice – unless the British public catches a bad case of “Regrexit.”

Contrary to what some have claimed, however, the exit negotiations need not conclusively resolve London’s status vis-à-vis Brussels.  Article 50(2) requires a withdrawal agreement that “tak[es] account of the framework for [the UK’s] future relationship with the Union.”  An deal that takes plausible steps toward defining that relationship should suffice, even if it is a modus vivendi whose principal aim is an orderly disengagement.  The details of the Britain’s post-withdrawal status can be finalized at a later date – although in the interim EU law will cease to apply to the UK.

Avoiding a rush to the Brexit

As described above, Article 50’s withdrawal rules, although incomplete, do a reasonably good job of channeling the parties toward a political settlement of the UK’s departure over the next several years.  But some in the pro-Brexit camp are calling for more precipitous action, including introducing an EU Law (Emergency Provisions) Bill in the current session of the British Parliament to revise the European Communities Act 1972.  The Bill aims to “immediately end the rogue European Court of Justice’s control over national security, allow the Government to remove EU citizens whose presence is not conducive to the public good (including terrorists and serious criminals), [and] end the growing use of the EU’s Charter of Fundamental Rights to overrule UK law ….”

There is no doubt that Parliament has the power to adopt such a Bill.  But from an international perspective, the enactment would rightly be seen as a grave violation of EU law, which continues to bind the UK until an exit deal is finalized or, failing that, two years after a notification of withdrawal.  The Bill would surely trigger a raft of lawsuits, by the EU Commission and by private litigants, challenging its legality and seeking fines and damages.  How would British judges respond to such suits?  The Bill would force UK courts to choose between their duty to apply EU law over conflicting national law and their obligation to defer to Parliament.  The result, as Cambridge professor Kenneth Armstrong has warned, would be a constitutional conflict of the first order.

The Bill might also provoke the remaining EU members to try to force Britain out.  The EU has no expulsion clause; one was considered but ultimately left out of the Lisbon Treaty.  But as my coauthors and I explain in a recent working paper, it is unsettled whether international law recognizes an implied right to expel.  And European leaders could attempt to achieve the same result indirectly, treating the Bill as a material breach that authorizes a suspension or termination of the Lisbon Treaty vis-à-vis the UK.  In either case, the legality of any expulsion effort would almost certainly be challenged in court.

In all events, the far better course for all concerned is to avoid a precipitous unilateral break and instead to negotiate Britain’s orderly departure from the EU.

Oh Britain, Where Art Thou? (The View from the EU’s Eastern Neighbors)

by Chris Borgen

As the news of the Brexit vote sinks in, commentators are considering the various longer-term effects. I want to highlight the how this may look to the EU’s neighbors to the east, especially countries such as Ukraine, Moldova, and Georgia that have recently signed Association Agreements with the EU. Ukraine and Moldova, in particular, have electorates that are divided over whether to integrate more closely with the EU or with Russia’s nascent Eurasian Economic Union.  The debate over EU integration sparked Ukraine’s Maidan demonstrations and the subsequent separatist conflict.  All of these countries faced significant pressure from Russia to reject association with the EU. These countries became effectively a borderland between two systems, those of the EU and of Russia. And Russia, in particular, has treated this as a zero-sum struggle over the futures of these countries that had once been part of the USSR. So what happens in the EU is of critical concern to its neighbors to the east.

And what are the EU’s neighbors seeing today? There are already calls by some for exit referenda in other EU countries such the Netherlands and France. The 2017 French Presidential election is increasingly looking like it will be an important barometer for the future of the Union. News feeds are abuzz with concerns about whether Brexit is the start of a domino chain that will tear the EU asunder.

However, some commentators have suggested that, although there will be a formal exit of the UK, there will actually be ongoing deep coordination and low trade barriers between Britain and the EU. A technical exit but not an existential crisis. It is too early to predict with confidence which of many scenarios will come to pass.

But the fact that the EU’s stability is more uncertain today than it was yesterday will affect regional politics. In the U.S., you might have people looking nervously at the Dow but that is nothing compared to the concerns in Kiev, which is embroiled in a secessionist conflict in part because it chose to bet on the EU being an important part of the future of Ukraine.

For their part, politicians from the EU’s eastern neighbors countries are reacting to Brexit with–how shall I say it?—a stiff upper lip. Interfax-Ukraine reports:

First Deputy Speaker of the Verkhovna Rada of Ukraine Iryna Gerashchenko and Deputy Prime Minister for Reintegration of Moldova Gheorghe Balan have discussed the result of the referendum on Britain’s exit from the European Union (Brexit) and its consequences for both countries.

“Ukraine and Moldova are disappointed with the results of the referendum and are concerned about the growing number of eurosceptics in the EU. However, Ukraine and Moldova are committed to the path of European integration and reforms,” Gerashchenko wrote on his Facebook page on Friday afternoon following the meeting.

Brave face notwithstanding, Ukraine and other countries along the EU’s eastern border that decided to sign Association Agreements with the EU will likely need to be reassured that they chose wisely. Some Members of Ukraine’s Parliament are concerned that Brexit will mean the EU will become inward-focused and delay the implementation of aspects of the Association Agreement that came so dear.

The EU will need to think clearly and act decisively not only about how it will manage the divorce with the UK but also about its strategy regarding its eastern neighbors—including both the states of the former USSR and Turkey as well.

For a deep-dive into the EU’s recent policies towards its neighbors (written before Brexit), see this paper from the EU’s Institute for Security Studies.

Introducing the First Multi-Blog Series on the Updated Geneva Conventions Commentaries

by Jessica Dorsey

[This post is brought to you by ICRC’s Humanitarian Law and Policy Blog, Intercross and Opinio Juris.]

The updated Commentaries are an interpretive compass emerging from more than 60 years of application and interpretation of the Geneva Conventions. Over the rest of 2016, several academic blogs are hosting a joint series that brings to light the significance of the updated Commentary on the First Geneva Convention.

In March, the ICRC released an updated Commentary on the First Geneva Convention of 1949 (GCI). This is the first instalment of six new Commentaries aimed at bringing the interpretation of the Geneva Conventions and their Additional Protocols of 1977, to the 21st century.

This blog series is co-hosted by Intercross, the blog of the ICRC in Washington D.C., the ICRC’s new Humanitarian Law & Policy blog and us here at Opinio Juris.

This multi-blog venture is divided into three episodes, each of which focusing on a GCI provision – or a theme within a set of provisions – whose application and/or interpretation have evolved and give rise to debate among States and commentators. For each phase, the three blogs will invite one author to either initiate the conversation or act as respondent. The three episodes are respectively scheduled for this summer, fall and winter 2016.

The blogs will be regularly updated with past and upcoming posts, along with an evolving publication calendar. To kick off the series, Humanitarian Law & Policy will invite Jean-Marie Henckaerts, Head of the Update Project at ICRC, by locating the GCI Updated Commentary into the legal landscape and applying the rules on treaty interpretation to the Geneva Conventions. Expect the post by the end of this month on this website, or get it directly in your mailbox.

Bringing the Pictet’s Commentary’s Legacy Into the 21st Century

In 2011 the ICRC embarked on a major project intended at updating its original Commentaries, drafted under the general editorship of Jean Pictet in the 1950s (for the Conventions), and of Yves Sandoz and other ICRC lawyers in the 1980s (for the Protocols).

Since their publication, these commentaries have become an authoritative interpretative guide for States, armed forces, national and international courts, academics and civil society. However, in order to remain relevant, they needed to be updated to reflect more than 60 years of subsequent developments in applying and interpreting the Geneva Conventions. With the release of the Commentary on GCI, an important milestone has been reached, with key findings related to GCI-specific articles but also common articles governing the scope of application of the Conventions and their enforcement.

The initial edition of the Commentaries mostly provided historical context for the adoption of the Conventions and their Additional Protocols, drawing on the negotiation process of the treaties, as well as practice prior to their adoption. In this respect, they retain their historic value. The updated Commentary builds on and preserves those elements that are still relevant, while incorporating more than six decades of application and interpretation of the Conventions – 40 years in the case of the 1977 Additional Protocols. Capturing the evolution of warfare and humanitarian challenges, as well as technological and legal developments, led to many additions but also updates.

The multi-faceted nature and complexities of today’s armed conflicts have also resulted in more elaborated interpretations on the scope of application of the law in armed conflict. The new Commentary aims to capture key elements of the ongoing debate about where, when, and to whom IHL applies, setting out the view of the ICRC while also indicating other interpretations.

The Commentary provides important clarifications on key aspects of the legal regime governing the protection of the wounded and sick in armed conflict. On the obligation to respect and protect the wounded and sick, it addresses issues ranging from taking their presence into account in a proportionality assessment when planning attacks, to the general obligation to have medical services in the first place. On the protection owed to medical personnel, it gives details on the conditions under which such protection may be lost. The new GCI Commentary also captures changes in the regulation of offers of services by impartial humanitarian organizations, on the dissemination of IHL, and on criminal repression. It also adds a number of subject matters, such as the prohibition of sexual violence and non-refoulement.

For more on the updated Commentaries project, see the Humanitarian Law and Policy’s post here.

Congratulations to Duncan Hollis on His Election to the Inter-American Juridical Committee

by Chris Borgen

We at Opinio Juris are very proud that our colleague Duncan Hollis of Temple University Law School was elected on June 15 by the General Assembly of the Organization of American States to the Inter-American Juridical Committee, which

…serves the Organization as an advisory body on juridical matters of an international nature and promotes the progressive development and the codification of international law.

It also studies juridical problems related to the integration of the developing countries of the Hemisphere and, insofar as may appear desirable, the possibility of attaining uniformity in their legislation.

No two members of the Committee may be from the same state and Duncan’s term will start in January 2017, at the end of David Stewart’s three years of service. Duncan is one of three new members of the Committee.

With his wide-ranging expertise on topics ranging from the law of treaties to the challenges that new technologies pose to International Humanitarian Law, Duncan will be a great addition to the Committee.  Congratulations!

The Return of the Emoji: Flags, Emoji, and State Recognition

by Chris Borgen

I thought I had largely said what I had to say concerning emojis and international law in my previous post. SRSLY. 😉

But then John Louth, who knows of my interest in issues of recognition and non-recognition of aspirant states, pointed out this article from Wired which discusses, among other things, the issue of which national flags are awarded emoji and which are not. So let us return to the emoji for another post.

Consider the following passage for the Wired article:

…the most contentious emoji arena isn’t food, or even religion. It’s flags. From October 2010 until April 2015, there were a limited number of flag emoji, including the Israeli flag—but notably, no Palestinian flag. When the Palestinian flag was added—along with some 200 other flag emoji—it was cause for celebration.

Palestine exists in an unusual limbo in international law. It is recognized by some countries as Palestine, and by others as the Palestinian Territories.

“Technology has been used as a weapon to revolutionize the Middle East, and now it is being used as a weapon to legitimize Palestine,” wrote Palestinian columnist Yara al-Wazir at Al Arabiya earlier this year. “Introducing the Palestinian flag as an emoji is more than just a symbolic gesture.”

The article then goes on to note that some national groups, such as the Kurds, do not have flag emojis.

So, how does the Unicode Consortium, a non-state actor, decide whether to assign a symbol for the flag of an entity claiming to be a state, especially if that statehood is contested? (For more on the Unicode Consortium, please see my previous post.) The Consortium’s FAQ explains the criteria:

The Unicode Standard encodes a set of regional indicator symbols. These can be used in pairs to represent any territory that has a Unicode region subtag as defined by CLDR [Common Locale Data Repository], such as “DE” for Germany. The pairs are typically displayed as national flags: there are currently 257 such combinations. For more information, see Annex B: Flags in UTR #51.

In other words, the Consortium’s regional indicator symbols are based on the International Organization for Standardization’s (ISO’s) two-letter country codes.

As described on its own website, the ISO is:

an independent, non-governmental organization made up of members from the national standards bodies of 162 countries. Our members play a vital role in how we operate, meeting once a year for a General Assembly that decides our strategic objectives.

Our Central Secretariat in Geneva, Switzerland, coordinates the system and runs day-to-day operations, overseen by the Secretary General.

It also describes itself as a network of national standard–setting bodies.  With its combination of a permanent secretariat as well as a bureaucratic network, the ISO has aspects of both an intergovernmental network and an international organization.  (See more on ISO governance, here.)

To receive a top-level country code from the ISO, an entity must be: (a) a United Nations member state, (b) a member of a UN specialized agency, or (c) a party to the Statute of the International Court of Justice.

Thus, the Unicode Consortium’s decision-making process to decide whether or not to assign a glyph for a country flag is based on the decision by the ISO, an organization with significant national government involvement, on whether or not a territory receives a country-code. The ISO’s decision is itself reliant on the aspirant entity’s relationship to the United Nations.

In short, the ISO has a two-letter designator for Palestine (see, for example, this ISO newsletter [.pdf]), so the Consortium by its own rules can (though does not have to) assign a code for the flag of Palestine. No ISO code for a Kurd state; no Kurdish flag emoji. And all of these stem from degrees of relationship of these entities to the UN.

In sum, a non-state consortium is basing its decisions on a state-based regulatory network (the ISO), which in turn is using criteria based on an intergovernmental organization (the UN). The result in the case of flag emojis is that the Consortium unlikely to assign a flag where the  ISO is not willing to assign a separate country code, and ISO will not assign such a code without first looking to UN practice.

Receiving a flag emoji is not the recognition of a state by another state or even by an interstate organization. Nonetheless there are many hurdles to the designation of a flag emoji. Given the significant state interest in issues of recognition, explicit or implied, this is not surprising.

And if readers find other interesting overlaps of the Unicode Consortium, emojis, and international law, please let me know!

Emojis and International Law

by Chris Borgen

Emojis: love them or hate them, you can’t seem to get away from them.  🙂  The smiley face, the thumbs-up, the smiling pile of poop, and the hundreds of other little symbols and pictograms that get used in text messages, tweets, and the like.  And tomorrow, June 21, we will have 71 new emojis to play with.  Why will there be new emojis tomorrow? And what does this have to do with international law? Read on…

First, a bit of background: while the smiley face is very much an iconic 1970’s symbol (“Have a Nice Day!’), the use of what we would call emoji in electronic communications started in the 1990’s in Japan, for use in cellphone texts.  Each little frowny face or thumbs-up, though, needs to be mapped using a common standard, or else it would only be able to be seen on certain platforms (say, an Android smartphone) but not on others (such as a Mac).

Consequently, there is actually an approved set of “official” emojis that can work across multiple software and hardware platforms and that new emojis are released once a year by a standard-setting organization called the Unicode Consortium, “a non-profit corporation devoted to developing, maintaining, and promoting software internationalization standards and data, particularly the Unicode Standard, which specifies the representation of text in all modern software products and standards.”  The Consortium’s membership includes Apple, Adobe, Google, Microsoft, Oracle, and Yahoo, among others. By providing cross-platform standards, the Consortium is essentially making the soft law of the interoperability of symbols across different programs and devices. 😎

Proposals for new emojis are made to the Unicode Consortium, which then reviews and decides which symbols  should become standard and how they should be encoded. There are currently about 1,300 emojis, with about 70 added each year.   (By way of perspective the total  “Unicode Standard is mammoth in size, covering over 110,000 characters. “) The list of new emojis being released on June 21 is here.  Can’t wait to use the team handball emoji!

But, besides this being an unexpected story of industry standard-making bodies and funny little symbols, one must keep in mind that the Unicode Consortium’s responsibilities go well beyond encoding the broken heart glyph. As NPR reported last year:

The Unicode Consortium’s job has always been to make basic symbols work across all computers and other devices, but the emoji has put the group at the center of pop culture.

“Our goal is to make sure that all of the text on computers for every language in the world is represented,”

However, as Mashable notes:

getting characters added to the Unicode Standard is a long, drawn-out process. In addition to the original Japanese emoji characters, the Unicode additions included other new characters — such as country maps and European symbols.

What this means is that there is a data file that maps every individual emoji symbol to a Unicode code point or sequence.

But this is just the standardization of the symbols. Supporting emoji, as well as the specific design of the emoji characters, is up to software makers.

Thus, the administrative scaffolding that makes emojis ubiquitous is based on a non-governmental standard-setting body using soft law to allocate Unicode points or sequences to symbols (be they emojis, letters, mathematical symbols, etc.) that are approved by the Consortium.   The approval of emojis is simply one example of a set of responsibilities with much broader implications than just whether “nauseated face” deserves its own encoding. (According to the Consortium, it does.)

Besides interest in the process of institutional decision-making in standard-setting bodies such as the Consortium, there is also a question  of whether the Consortium’s overall goal of ensuring that the script of every language in the world is represented digitally is in tension the current focus on encoding more and more emoji.  Some have expressed concern that this focus on emojis may divert time and resources away from the protection of endangered languages. Peoples who are trying to preserve endangered languages (such as, for example, Native American and First Nation languages) would be greatly helped if the alphabet of that language would be as easy to read across a variety of computer platforms and digital devices as a smiley-face. Consider this an issue of resource allocation.  Letterjuice, a Brighton and Barcelona-based type foundry, posted a thoughtful essay on Unicode and language rights, which stated: (more…)

Venezuela’s Crisis Tests the OAS’ Legal Commitment to Defending Democracy

by Julian Ku

Foreign Policy has a great report from Michael Shifter on the ongoing diplomatic battle within the members of the Organization of American States over how to respond to Venezuela’s ongoing political and economic crisis.  According to Shifter, the OAS Secretary General Luis Almagro is pushing hard to get the OAS membership to invoke Article 20 of the OAS Democratic Charter at the upcoming June 23 special session.  Under Article 20, the Secretary General may ask the Permanent Council of the OAS to “collectively assess” as situation where there has been an “unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state.”   The Permanent Council can then undertake “necessary diplomatic initiatives, including good offices, to foster the restoration of democracy.”

The OAS Secretary-General has already issued a long 114 page report explaining why he believes (starting on p. 35) that there has been an “unconstitutional alteration of the constitutional regime that seriously impairs the democratic order” of Venezuela.  I haven’t been following the Venezuela situation closely, but this report certainly lays out a strong case.  Even more importantly in my view, it offers a good explanation of why members of the OAS have (via the Democratic Charter) a strong international legal obligation to democratic governance.

The penalties for breaching this obligation aren’t all that onerous.  Under Article 21, the OAS, via a special session, can suspend Venezuela from the OAS. I am not sure how likely this is to happen, given that Article 21 has a 2/3 majority requirement.

Still, I find this whole episode a fascinating example of how an international organization can become the key vehicle for influencing the domestic governance of one of its member states.  Key states are concerned about the crisis in Venezuela, and it looks like the OAS will be the chosen vehicle of (very soft diplomatic) intervention.

Does the International Court of Justice Have Jurisdiction over Iran’s Claim Against the U.S? Actually, Maybe It Does

by Julian Ku

After about two months of public statements threatening to take the U.S. to the International Court of Justice over frozen Iranian assets, Iran finally instituted ICJ proceedings yesterday under the 1955 U.S.-Iran Treaty of Amity, Economic Relations, and Consular Rights.  Iran alleges in its complaint that the U.S. has violated the treaty’s obligations by taking Iranian government assets and redistributing them to families of U.S. marines killed in the 1983 Beirut bombing.  In April, the U.S. Supreme Court upheld the constitutionality of a 2012 congressional statute authorizing the seizure of Iranian government assets for distribution to the plaintiffs.

Iran argues that the U.S. government violated the 1955 Treaty in numerous ways by its failure to recognize the separate legal identity of the Iranian Central Bank and other state-owned companies and its failure to provide protection for such property as required by international law.  Iran further alleges that the U.S. conducted an expropriation of Iranian assets, while also denying access for those legal entities in US. court, while at the same time failing to respect their sovereign immunity, as well as other treaty violations.

Under paragraph 2 of Article 21 of the Treaty,

 

Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means.

I have previously tweeted on more than one occasion that the ICJ would have no jurisdiction, but I had forgotten about this provision (luckily someone reminded me on Twittter).  Believe it or not, Article 21 of the U.S-Iran Friendship Treaty has already been the basis for two prior ICJ proceedings: the U.S. case against Iran’s seizure of the U.S. embassy and its personnel (1979) and the Iranian case against U.S. actions against its Iranian oil platforms in 1992.  So it is clear that Article 21(2) is a legitimate basis for jurisdiction, and the ICJ held in both prior cases that this provision conferred jurisdiction upon it.

On the other hand, Article 21 limits a party’s claim to a “dispute…as to the interpretation or application of the present Treaty.”  This means Iran will have to limit its claim to violations of the treaty, rather than violations of general international law.  This is harder than it looks.  In the 2003 Oil Platforms judgment, the ICJ found that it had jurisdiction, and that U.S. attacks on the oil platforms were not justified on self defense. The ICJ nonetheless found that Iran’s claim that U.S. attacks on its oil platforms did not breach the “freedom of commerce” between the two nations, since no such commerce in oil was occurring at that time.  So the U.S. lost on jurisdiction, but won on the merits.

So I am going to reverse my earlier views and tentatively guess that the ICJ will find that it has jurisdiction over this case.  In particular, I think Iran will have a good argument that Article IV(2), which requires the U.S. give Iranian nationals’ property “the most constant protection and security within the territories of the other High Contracting Party, in no case less than that required by international law….” (emphasis added). I am not sure Iran is right that the U.S. violated Article IV(2), but I think Iran has a plausible argument that it could have been violated. That should be enough for jurisdiction.

I nonetheless expect the U.S. government to make a big fight over jurisdiction and admissibility. Even if it loses, the U.S. can slow down these proceedings tremendously by battling over jurisdiction and narrowing which claims Iran can bring forward.  This strategy worked very well in the Oil Platforms case.  Iran filed the proceedings in 1992. The ICJ did not issue an determination on jurisdiction until 1996.  The ICJ then took another seven years to finally issue a judgment on the merits in 2003 (which the U.S. won anyway).  With any luck, the U.S. could avoid a merits judgment here until 2027.

I think this case might move along more briskly, but it will still take a while.  And I think the slow wheels of international justice might work out for both sides here. Iran’s leaders can say they are doing something, but it will not result in any immediate judgment that will put the U.S. on the spot.  The U.S. can drag this out, and it might even prevail on the merits (I have no strong opinion on that complex issue yet).

I do not expect the U.S., however, to boycott of the entire proceedings, as China has been doing in the Philippines South China Sea arbitration.  For one thing, there is really no need, as I explained above, since we could be in for a 10 year wait for a judgment. For another, the U.S. needs to show that it plays nice with international law and courts to bolster its own calls on China to abide by the South China Sea arbitration.

Alexander Hamilton, the New Republic, and the Law of Nations

by Chris Borgen

There’s this musical on Broadway. It’s called Hamilton.  You might have heard of it. It’s causing legal scholars to say things like “I admired Hamilton since before he could rap,” and “My Shot has a pretty good lyric but have you tried Federalist no. 6?”

Anyway, a short note on A. Ham. and the law of nations seems in order.  For the following, I am particularly indebted to  Mark Janis’ book America and the Law of Nations 1776-1939 (Oxford 2010), David Bederman’s volume The Classical Foundations of the American Constitution: Prevailing Wisdom (Cambridge 2008) and Hamilton’s Republic (The New Press 1997), a compilation of writings by Alexander Hamilton and later “Hamiltonian” writers edited and introduced by Michael Lind. These authors and others writing about Hamilton do not necessarily come to the same conclusions regarding his views on what we now call international law, but rather provide  varying perspectives on a complex man.

By way of background, the views of the founders were in part shaped by their education in classical history as well as Enlightenment philosophy.  David Bederman, in his study of classical thought and the U.S. Constitution, wrote that “[s]tarting first with classical writers in Greek, the Framing generation particularly prized the works of Plato, Aristotle, Thucydides, Polybius, and Plutarch, in that rising order of esteem.” (Bederman, 15.)   Thucydides’ international realism and Polybius’ conception of a “mixed constitution” combining monarchy, oligarchy, and democracy were especially influential on the founding generation. Hamilton was particularly fond of quoting Plutarch, whose biographies combine issues of public policy and state building with individual moral choice. (Bederman,16-17; 22.) Hamilton and other founders may have used “instrumental classicism,” to support their political arguments, but they also did a “reputable job in trying to make sense of antiquity,” with Hamilton among the “best” classicists. (Bederman, 228.)

Beyond classical history and philosophy, the founders were also influenced by Enlightenment philosophy and, as a group, were well-versed in the 18th century law of nations and often referred to it in their writings. Mark Janis, in the first volume of his history of the United States and international law, argued that “[n]o group of America’s leaders have ever been more mindful of the discipline[of international law] than were the Founding Fathers.” (Janis, 24.)

In relation to studies in natural law at Kings College (later, Columbia University), Alexander Hamilton suggested in 1775 a reading list of “Grotius, Pufendorf, Locke, Montesquieu, and Burlemaqui.” (Janis, 24-25.) This shows, at least, his exposure to foundational texts of international law.  However, suggesting a reading list on natural law and actual application of the law of nations in practice are two different things. So, how concerned was Alexander Hamilton with the application of the law of nations to the “young, scrappy, and hungry” republic?

Here we can see some divergence in interpretation by scholars. Janis notes that in 1795 Hamilton (more…)

I’d Like to Be Under the South China Sea in a Crewed Deep Sea Platform in the Shade

by Chris Borgen

Earlier this week, Julian and I each posted about the international legal issues of the Moon and asteroid mining plans of U.S. companies. Those projects may have sounded like something out of Space 1999 but now we hear of one of China’s near-term priorities that sounds like SeaLab 2020.

Bloomberg reports:

China is speeding up efforts to design and build a manned deep-sea platform to help it hunt for minerals in the South China Sea, one that may also serve a military purpose in the disputed waters.

Such an oceanic “space station” would be located as much as 3,000 meters (9,800 feet) below the surface…

This would be by far the deepest long-term undersea facility (as opposed to a deep sea vessel, such as a submarine). By way of context, the NASA Extreme Environment Mission Operations Facility (NEEMO), the “world’s only undersea research station” is anchored at a depth of 62 feet.

China’s leadership explains that, in part, this base will help with a new frontier of resource development, using rhetoric that is at times similar to the arguments some make concerning private space ventures on the Moon and asteroids:

President Xi Jinping said at a national science conference in May: “The deep sea contains treasures that remain undiscovered and undeveloped, and in order to obtain these treasures we have to control key technologies in getting into the deep sea, discovering the deep sea, and developing the deep sea.”

But, beyond looking for deep sea resources, the concern is that the base is part of China’s gambit for sovereignty over much of the South China Sea.  However, while establishing this undersea platform may become part of China’s political argument for its sovereignty claims, it does nothing to support the legal argument. Under the UN Convention on the Law of the Sea (UNCLOS), this undersea platform would probably be treated as an “artificial island,” like an oil rig.  At the time that UNCLOS was being drafted, large undersea bases were more the province of James Bond movies than treaty negotiations, so the closest analogy in the text is what would likely be applied in this case.  (For a discussion on sea platforms, “seasteading,” and sovereignty claims by non-state actors, see this post.)

Although it is not clear where the location of this undersea lab would be, UNCLOS has similar provisions concerning artificial islands located in an Exclusive Economic Zone (article 60) or on the continental shelf (article 80, which refers back to the article 60 text, with any applicable adjustments).

The text from article 60 states:

Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.

So, in short, building this base would not change China’s territorial rights.

However, the concern is that, while it may not help the legal argument, another goal of the base may be to bolster the political argument with some military muscle. The Bloomberg article quotes the following:

“To develop the ocean is an important strategy for the Chinese government, but the deep sea space station is not designed against any country or region,” said Xu Liping, a senior researcher for Southeast Asian affairs at the Chinese Academy of Social Sciences, a government-run institute.

“China’s project will be mainly for civil use, but we can’t rule out it will carry some military functions,” Xu said. “Many countries in the world have been researching these kind of deep water projects and China is just one of those nations.”

Whether China actually builds this base–and if so, where–remains to be seen. If it does so, it will also be interesting to assess whether the base turns out to be most useful as a scientific research facility, a political gambit, or a military base.