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Transitional Justice and Judicial Activism Symposium: International Courts and Tribunals Should Have Discretionary Review

by Cesare Romano

[Cesare Romano is Professor of Law, Joseph W. Ford Fellow, and Director of the International Human Rights Clinic at Loyola Law School, Los Angeles. He is also Senior Research Fellow of iCourts, University of Copenhagen, and of Pluricourts, University of Oslo.]

Last September, the President of Colombia, Juan Manuel Santos, and Timoleón Jiménez, the top commander of the Revolutionary Armed Forces of Colombia (FARC), met in Havana to unveil a plan to put an end to the violence that has plagued their country for more than 50 years. According to the National Center for Historical Memory, between 1958 and 2012 about 220,000 people died as a result of the conflict between leftist guerrillas, right-wing paramilitary groups, and government security forces. Of those, about 80% were civilians. Moreover, violence, or the fear of it, created 6 million of refugees or internally displaced persons.

A key aspect of the plan is what sort of penalties the perpetrators of crimes against humanity during the long conflict should face. As agreed in Havana, while the rank-and-file of the FARC’s fighters will receive amnesties, leaders charged with “the most serious and representative” crimes will be judged by a Special Tribunal, containing a minority of foreign judges (para 3 of Joint Communique No. 60) (.pdf). Those who confess and collaborate with a Truth Commission will benefit from alternative penalties: between five and eight years of community work “with effective restriction of liberty”, though not in prison conditions. Those who do not collaborate will go to jail for up to 20 years. Similar procedures will apply to the armed forces and those found guilty of financing right-wing paramilitary vigilantes.

Once upon a time, ending civil wars was fairly straightforward, at least from the legal point of view. In return for demobilizing, insurgents would get an amnesty and, if they were lucky, political reforms or even a hand in writing a new constitution. That was what happened in the Central American peace deals of the 1990s, and with Colombia’s M-19 rebels, active between 1970 and 1990.

However, as Ruti Teitel’s article Transitional Justice and Judicial Activism: A Right to Accountability? (.pdf) details, international law has changed since then. Starting from the mid-1990s, the imperative of accountability has moved to the front and center, displacing time-honored transitional justice processes including lustration, exile and the many hard-bargains peoples have made throughout history to turn the page on traumatic events and move on. Nowadays, blanket amnesties that grant impunity for international crimes are, at best, frowned upon, and are even arguably prohibited by international law. Moreover, the range of crimes that cannot be pardoned or amnestied is growing by the day, going beyond jus cogens.

As the Colombian peace process advances, many wonder whether the agreements reached in Havana will pass muster with the International Criminal Court, the Inter-American Court of Human Rights or the UN Human Rights Committee. Will the punishment meted out by the Special Tribunal satisfy the ICC Prosecutor? Some victims will certainly challenge the legality of the agreement before the Human Rights Committee or the Inter-American Commission. The question might even reach the Inter-American Court, as it has been the case in the past with similar processes in Brazil, Uruguay, Chile and Peru. Will the imperatives of accountability and human rights undo the negotiations? Teitel’s article skillfully takes us through the maze of considerations and dilemmas that international judicial involvement in transitional justice efforts create.

I believe 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.

“Discretionary review” is the authority appellate courts have to decide which cases they will consider from among those submitted to them. The opposite of discretionary review is “mandatory review”, in which appellate courts must consider all appeals submitted (as long as they are admissible and the appellate court has jurisdiction, of course).

Discretionary review is widely employed in all modern and developed judicial systems. It has several advantages. It enables an appellate court to focus its limited resources on cases that have large public benefits, and to decide substantive cases with the lowest “opportunity cost”, thus giving the judges the opportunity to avoid being entangled in disputes where the political stakes are too high. It helps the system to develop a coherent body of case law, and reduce potential conflicts with past decisions or other jurisdictions.

Under contemporary international law, international courts and tribunals have mostly mandatory review. When a case is admissible and the adjudicating body in question has jurisdiction, there is little the judges can do to avoid deciding the case. Arguably, the International Court of Justice would have been better off if it had the chance to avoid answering questions that it could not really answer, such as whether the use or threat of use of nuclear weapons is against international law, or whether genocide had been committed in the former Yugoslavia in the 1990s.

I am sure the Inter-American Court would have preferred not having to pronounce itself on the legality under international law of amnesty laws in several Latin American states. But it had no choice. Once the Inter-American Commission brings a case before it, unless it finds the case not admissible or that it does not have jurisdiction (which has happened, for technical and practical reasons, extremely rarely in the history of the Court), it has to decide. And, given the legal parameters that it has to apply, and the general pro homine bias it necessarily has, the cases lead to scripted conclusions.

The same can be said about the African Court of Human and Peoples’ Rights and the European Court of Human Rights. Albeit in recent years, after the entry into force of Protocol 14 to the European Convention, the Strasbourg court has been given limited discretionary review through the introduction of pilot cases, it is still forced to decide more often than not cases that it should not decide as a matter of opportunity. Admittedly, international criminal tribunals have greater discretion that the other kinds of international adjudicative bodies. However, the discretion is only the Prosecutor’s. Once the Prosecutor has decided to investigate and indict, the judges cannot second guess the Prosecutor and dismiss the case because it might undermine delicate transitional justice efforts.

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.

Such a reform would be a momentous change in international procedural law, even if limited to just one adjudicative body. There are many questions to be considered, including whether it could be done by simply modifying the rules of procedure and add a new admissibility criterion, or whether it would require changing the statutes, and, thus, require states’ intervention; how much latitude should international judicial bodies have in deciding when to hear a case; who should be allowed to argue on whether the court should take on the case and how (petition of certiorari only or also hearings?); by what majority should the decision be taken (e.g. the U.S Supreme Court requires four judges out of nine to vote to take on a case); whether the judges should motivate the decision not to take on a case; and so on.

Granted, discretionary review has some disadvantages, too. It reduces access to justice and leaves the parties (mostly victims of human rights abuses) at the mercy of the discretion of the court. However, if we can trust the wisdom of these judges on the merits of the case, why can’t we trust them also on weighing the costs and benefits, writ large, of hearing the case? It is exactly the conundrums of transitional justices detailed in Teitel’s article that should give us pause and let us consider the merits of discretionary review in international adjudicative processes.

The Incredible Shrinking Climate Agreement?

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 is in Paris for the climate change negotiations. This is the fourth 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.]

“Tomorrow and tomorrow and tomorrow creeps in this petty pace from COP to COP.” For many, that might be the slogan of the UN climate change regime. Or, to mix literary metaphors, the COPs are reminiscent of Sartre’s No Exit, where hell consisted of being locked in a room talking to the same small group of people for eternity.

Paris is the opportunity to prove the skeptics wrong – to show that the climate change regime can take a real step forward, rather than just creep along from COP to COP. But whether it will succeed in doing so remains an open question.

First, the good news. Paris is definitely one of the best-organized COPs ever – the French have done a fantastic job. And the mood, perhaps not coincidentally, is also good, totally unlike the poisonous atmosphere in Copenhagen, where some countries sought to systematically undermine the Danish Presidency. In contrast, one hears nothing but praise for the French team’s handling of COP21. Instead of angry protesters outside the venue, people are handing out apples, as a taste of biodiversity.

Moreover, the text is gradually being streamlined to a more manageable size. Parisagreement.org, a group based at UC San Diego, have been tracking the number of brackets and options in each successive iteration of the negotiating text. According to their figures, the number of brackets in the December 5 text has shrunk by 45% from the November 10 text, and the number of options by 60%. Of course, their work reminds me a bit of the Monty Python skit in which John Cleese compares the difficulty of Shakespeare’s plays in terms of the number of words they contain: Hamlet has 8262, Othello has 941 words fewer, and so forth. But then he adds, “Ah well, I don’t want you to get the impression it’s just the number of words … I mean, getting them in the right order is just as important.” Something similar could be said of brackets; it’s not just the number, it’s also a matter of whether they reflect real differences or are just negotiating ploys. That said, I do think it’s fair to infer that the shrinking number of brackets and options reflects progress. And I remain optimistic that there will be an agreement this week in Paris.

The question is what will survive the negotiating process and make it into the agreement. Although the text is in better shape than many expected and the number of crunch issues is relatively manageable, states continue to push proposals that have no prospect of being accepted, in an effort to gain negotiating leverage. So progress remains slow.

The political imperative of reaching a deal gives tremendous leverage to potential naysayers. The usual solution, when time is running out, is to cut and cut and cut, until the outcome doesn’t push any country past its comfort zone. Developing countries want strong provisions on finance and differentiation, while developed countries want more modest provisions. Conversely, developed countries want strong provisions on transparency and updating (to promote progressively higher mitigation ambition), while the big developing countries do not. How to bridge these differences? The easiest solution is to trade weak provisions on finance and differentiation for weak provisions on transparency and updating.

Even if this is how the end game plays out – and that is, of course, by no means a foregone conclusion – I don’t think it would be fair to characterize the Paris process as a failure. Paris has served as a catalyst both for national governments and for sub-national and non-governmental initiatives. It has prompted more than 185 countries to put forward INDCs, which would reduce emissions by an estimated 4-8 gigatons below business as usual by 2030, according to a recent report by UNEP. It has led to a groundswell of activities by cities, regions, and companies. And it has spawned initiatives like Mission Innovation, announced last week by President Obama, President Hollande, and leaders from 18 other countries, who pledged to double their clean energy R & D over the next five years, as well as the related private initiative, the Breakthrough Energy Coalition, led by Bill Gates. So, in many ways, Paris is already a success. Nevertheless, the international agreement that the Paris process is supposed to produce is also a key ingredient. If the INDCs submitted by countries aren’t bolstered by an agreement with strong provisions on transparency and ambition, then I think Paris will be a lost opportunity to show that the UN process can do more than creep – that there’s a way out of the room within which the negotiators have been locked.

Transitional Justice and Judicial Activism Symposium: Introduction

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 am very pleased to participate in this Opinio Juris roundtable on my just-published article Transitional Justice and Judicial Activism: A Right to Accountability? (.pdf), and particularly to engage with Dinah PoKempner, Professors Cesare Romano, Chandra Sriram and others who have offered such thoughtful and probing observations on my article.

The article grows out of a multi-year ongoing project that examines on the jurisprudence pertaining to states undergoing political transition or dealing with unresolved justice issues from prior transitions. In this particular essay, the emphasis is on transnational human rights jurisprudence, notably that of the Inter-American Court of Human Rights and the European Court of Human Rights. These tribunals, sometimes in dialogue with each other, have evolved, through interpretation of existing legal instruments, an approach that establishes what I term a “right to accountability,” an entitlement of victims of human rights abuses by the state to the investigation and prosecution of these offences, as well as various remedies for past failures of accountability. The result is to frame transitional justice in terms of human rights, with an emphasis on those who have suffered from human rights abuses particularly in conflicts of the past.

Beginning with the Inter-American Court decision of Velasquez Rodriguez, the Latin American case law has been highly contextualized to the special challenge of dealing with those human rights abuses characteristic of the “dirty war,” especially disappearances. It is often implied that no less than criminal law punishments can satisfy demands for accountability. Thus, as I explore in the article, these judgments cannot help but collide, in many contexts, with approaches to transitional justice that emphasize social reconciliation, or social peace. Examples include various forms of amnesty in Peru, Chile and Uruguay that can go back as far as the 1980s, and that are put in question by the right to accountability approach. Most recently, the Inter-American Court embraced a challenge to amnesty practices in Brazil that had been the result of a process of open democratic deliberation and freely arrived at and supported by wide number of political actors in that country including its Supreme Court.

The pressing question that is the articles focus becomes is the legitimacy of such judgments particularly after the passage of significant time, and where there had been comprehensive processes of transitional justice on a case by case basis, including repair of victims, and some form of arrival of truth but nevertheless something falling short of individualized criminal accountability and punishment.

The tension between domestic ownership of transitional justice and internal political compromises that it produces and the rights based approach may point to the need to qualify or relativize the right to accountability so conceived in light of important normative considerations and political factors, which I elaborate in the Article, such as first and foremost the relevance of context and capacity, the strength/weakness of the relevant state, the degree of compliance/impunity; ie thinking about the relevant rights fulfillment not in dichotomous terms but rather in terms of what could be seen as a “continuum of accountability.” (See p 414.) I argue for “greater care …in intervening where some accountability process has started….There may be a number of political and institutional reasons at play and ideally the court should have an appreciation of these reasons before deciding whether and how to intervene.” Id.

A related approach would be to resort to the concept of “complementarity,” associated most notably with the exercise of jurisdiction by the ICC. The question is whether complementarity, deference to domestic processes can be justified where there is no lack of ability or willingness to prosecute but there has been a conscious inclusive democratic decision to prioritize other forms of accountability than full or conventional criminal sanctions.

Overall, my stance is that human rights tribunals need to develop techniques of adjudication that permit a constructive dialogue with domestic political and legal institutions and practices of transitional justice, a dialogue sensitive to context and the considerations that affect the relative legitimacy of transnational tribunals and domestic political and legal actors in addressing questions of justice related to political conflict.

The International Criminal Court’s Assembly of States Parties Meetings: Challenges to the Work of the Court

by Jennifer Trahan

[Jennifer Trahan is Associate Clinical Professor, The Center for Global Affairs, NYU-SPS. She attended ICC ASP 14 on behalf of the American NGO Coalition for the ICC and the American Branch of the International Law Association International Criminal Court Committee. The opinions expressed are not necessarily those of AMICC or the ABILA.]

From November 18-27, delegates of states that are parties to the International Criminal Court’s Rome Statute, as well as NGOs and delegates of non-State Parties gathered in The Hague for the 14th annual Assembly of States Parties meetings.

While much of the ASP’s business carried on as usual, two threats to the Court’s work emerged.
The first came in the form of a Kenyan proposal seeking an interpretation or reaffirmation that Rule 68’s amendment made at the ASP in 2013 would not apply retroactively. On its face, the measure Kenya proposed looked harmless enough. The ASP is indeed the body before which amendments to the ICC’s Rome Statute and Rules of Procedure and Evidence are to be brought after prior presentation to the New York working group on amendments.

But the unstated purpose behind Kenya’s proposal appeared to relate to the pending cases against Kenyan Deputy President William Ruto, and Joshua Arap Sang. Each is charged with crimes against humanity in connection with post-election violence in Kenya’s 2007-8 presidential elections in which over 1,000 persons died. (The measure may also have been indirectly aimed at insuring that a prior case against Kenyan President Uhuru Kenyatta – as to whom the charges have been withdrawn without prejudice – will not be reinstated.) A likely goal is to ensure that prior recorded witness testimony of witnesses who subsequently became “unavailable” could not be used in evidence. Given serious and credible allegations of witness tampering and disappearances—there are pending proceedings related to attempts to corrupt ICC witnesses in the Kenya cases—the proposal could be aimed at keeping out information potentially relevant to pending trials. To make matters worse, the issue of whether the Rule 68 amendment applies retroactively is currently pending before the ICC’s Appeals Chamber in the Ruto & Sang case.

In oral remarks responding to Kenya’s proposal on Thursday November 19 and then again in the closing plenary session, various States made strong statements about the need to preserve the Court’s independence and not interfere in matters pending before the Court. Yet, it was disheartening to later see delegates willing to attempt to mollify the Kenyan delegation by negotiating language favorable to the Kenyan position. If a matter really is sub judice, there should be no ASP role, period. (The only bright spot is that the language negotiated was included in a final report summarizing discussions of the Assembly, and not in a formal assembly resolution.) What the Court will eventually make of all of this, is, of course, another matter – as the judges do not necessarily need to accept even Rule or Statutory amendments from the ASP if they deem them inconsistent with the Rome Statute or beyond the ASP’s authority. Moreover, judges would likely accord language from a report little weight, if any.

Kenya’s second proposal was to develop an ad hoc mechanism of independent jurists to advise the Prosecutor in her selection of Prosecution witnesses. There is absolutely no precedent for such a measure, which clearly is aimed at stymying the Prosecutor’s work. Such an attempt to interfere with Prosecutorial independence appropriately met with little enthusiasm from other state delegations.

The theatrics of Kenya’s presentation of these proposals on November 19 were amplified when the more than 80-person Kenyan delegation applauded loudly to all of Kenya’s statements. Most of the rest of the room then applauded the interventions by other states who insisted on the Court’s independence, and not interfering in matters pending before the Court. The effect was somewhat like an audience at a sporting event, cheering their two respective teams. It seemed unseemly to say the least, and one can only wonder at the choice of allowing a delegation to be that large. Most other States sent at most a handful of representatives.

Another threat to the Court’s work was far more ordinary and predictable but also serious: seven States Parties holding out not to give the Prosecutor the budget she requested as necessary to do her work. With the Court active in 8 situation countries, with 23 pending cases, and preliminary examinations across the globe, now is not the time to nickel and dime the Prosecutor of the world’s worst atrocity crimes. The Court has a bigger docket than it ever has had before. The blame here also should be extended to the U.N. Security Council, which referred two situations to the Court (those in Libya and Darfur) but refused to pay for them, and has failed to insure that any of the outstanding arrest warrants or other transfers related to the cases are executed. At the ASP, the Prosecutor had requested a budget increase of 17%, but only received a 7.1% increase. If she now has to curtail meritorious investigations, which is anticipated, we have only States to blame, and not the Prosecutor.

These ASP gatherings of NGO’s and State delegates from around the world are in some ways heartening – to see a global network of individuals committed to international criminal justice, and the prosecution of the worse atrocity crimes through the ICC. Complementing the formal sessions are numerous “side events” that range the gamut from attempting to ensure justice locally in Africa, to strengthening the ICC’s work related to victims, and attempting to ensure accountability for crimes in Syria. Yet, the ASP meetings are also disheartening to see such attempts at political interference in the Court’s work (and budgetary shortsightedness). It is also disappointing, although perhaps understandable, to see States attempting to pacify delegates in order to avoid having their State potentially withdraw from the Rome Statute. One wonders whether that Faustian bargain is worth striking.

Crunch Issues in Paris

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 is in Paris for the climate change negotiations. This is the third 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.]

In an earlier post, I expressed cautious optimism that the Paris conference will succeed in adopting a legal agreement that requires countries to formulate and submit emission reduction plans, provides for international transparency and review, and establishes a process for countries to periodically ratchet up their efforts. But although the broad outlines of the agreement have been apparent for several years, a number of important issues remain to be resolved, on which the conference could still founder.

Here’s a brief summary of the “crunch” issues:

• How to reflect the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC)?

The issue of differentiation has been one of the most controversial since the inception of the UN climate change regime, and plays out across all of the different elements of the Paris agreement: mitigation, adaptation, finance, and transparency. It’s clear that the Paris agreement will move away from the rigid differentiation between Annex I and non-Annex I countries found in the Kyoto Protocol, towards a more global approach. But will any vestige of the Annex I/non-Annex I dichotomy remain?

Developed countries mostly argue that the concept of nationally determined contributions (NDCs) implies self-differentiation and that this self-differentiation is sufficient. But many developing countries would like some continuation of the categorical, annex-based approach found in the UNFCCC and the Kyoto Protocol. The 2014 US-China joint announcement added the phrase “in light of different national circumstances” to the principle of CBDR-RC, apparently to give it a more dynamic quality. This formulation was included in the Lima Call for Action (.pdf), and will almost certainly find its way into the Paris Agreement. But a general reference to CBDR-RC will likely not be enough to satisfy developing countries, so expect to see some additional language on differentiation in particular articles, for example, those on mitigation and transparency.

I don’t see the US and other developed countries accepting a reference in the Paris agreement to the UNFCCC annexes, which they view as outmoded, but my guess is that negotiators will find some language to bridge the gap – for example, in the context of mitigation, a principle of progression, which provides that countries that have previously pledged absolute economy-wide targets should continue to do so and that all countries should aim to do so over time. This formulation, in effect, differentiates between Annex I countries (which all pledged absolute, economy wide emissions targets in Copenhagen) and non-Annex I countries, without any explicit reference to the annexes, and thus might be acceptable to both sides.

• Whether to include a long-term decarbonization goal?

In Copenhagen, states agreed to a goal of limiting climate change to no more than 2° C. There is considerable – but not universal – support for supplementing this goal with a long-term decarbonization goal, like that included in the G-8 Leaders Statement last June, to provide a signal to business and investors. Many countries would like to include a decarbonization goal in the Paris agreement itself, but if consensus cannot be reached to do so, a possible fallback would be to include the goal in the Conference of the Parties (COP) decision that adopts the Paris agreement, which would give the goal a slightly lesser political status.

• Whether to include a commitment that parties implement their nationally determined contributions (NDCs)?

A central issue in the negotiations has been what commitments to include with respect to NDCs. There is broad agreement to include procedural commitments – for example, to formulate, submit, and periodically update NDCs. And even countries that seek to make NDCs legally binding seem to accept that the agreement will not commit countries to achieve their NDCs (thus distinguishing the Paris agreement from the Kyoto Protocol). But the European Union and some developing countries wish to include a commitment relating to implementation of NDCs.

A duty to implement, as compared to a duty to achieve, is an obligation of conduct rather than result. But if the Paris agreement contained a straightforward obligation on parties to implement their NDCs, then the difference between the two approaches appears small, since, arguably, the test of whether a state has implemented its NDC is whether it has achieved its NDC. This has led to a search for softer formulations of the commitment to implement: for example, a commitment to adopt measures “aimed” or “intended” to implement a country’s NDC, or a commitment to adopt implementing measures “related to” a country’s NDC. The trick is to find some formulation that (more…)

On the Legitimacy of the Settlements: A Legal and Historical Perspective

by Lorenzo Kamel

[Dr Lorenzo Kamel is Senior Fellow at IAI and Research Fellow at Harvard’s CMES]

It would seem unnecessary in 2015 to refer to the League of Nations or the Mandate for Palestine when discussing the legal status of the Palestinian territories. Yet, in recent years several scholars are resorting to these issues to provide a legal justification for the construction/enlargement of outposts/settlements and the indirect denial of the right of the Palestinian people to self-determination. This article aims to deconstruct these approaches and to shed light on the selective use of history and international law that underpins them.

The 89 pages of the Levy Report, released on 9 July 2012 by a special committee appointed in late January 2012 by PM Netanyahu to investigate whether the Israeli presence in the West Bank is to be considered an occupation or not, clarified that “with the establishment of the United Nations in 1945, the principle of recognizing the validity of existing rights of states acquired under various mandates, including of course the rights of Jews to settle in the Land of Israel by virtue of the above documents, was determined in article 80 of its charter”.

In a video entitled “the Legal Case for Israel,” international lawyer Eugene Kontorovich pointed out that “up to 1948 all this area [present-day Israel and the Palestinian territories] was Palestine reserved as a Jewish State by the League of Nations Mandate […] the legality of the Mandate jurisprudence cannot be changed.” More in general and according to an interpretation held by a growing number of scholars and by most of Israel’s right-wing parties, the preamble as well as Article 2 of the Mandate secured the establishment of the Jewish National Home on, in Howard Grief’s words, “the whole country of Palestine, not a mere part of it.” (H. Grief, The Legal Foundation and Borders of Israel under International Law (Jerusalem: Mazo, 2008), p. 106.) It would follow that, as argued by the late Eugene Rostow, “the Jewish right of settlement in the whole of western Palestine – the area west of the Jordan – survived the British withdrawal in 1948”.

But to resort to the League of Nations and the British Mandate for Palestine might be counterproductive for those committed to finding legal justifications for the construction of outposts, or the enlargement of settlements, in the Palestinian territories. The term “national home,” in fact, had no mutually agreed-upon meaning or scope and the British government was under no definite obligation, since the Mandate made any Jewish immigration subject to “suitable conditions” and contained safeguards for the rights and position of the non-Jewish communities.

True, in 1919 prominent British official Jan Christiaan Smuts, a leading figure in Lloyd George’s War Cabinet and an open supporter of racial segregation, envisaged the rise of “a great Jewish State.” Lloyd Gorge himself pointed out that “it was contemplated that when the time arrived for according representative institutions in Palestine, if the Jews had meanwhile responded to the opportunity afforded them by the idea of a National Home and had become a definite majority of the inhabitants, then Palestine would thus become a Jewish Commonwealth”.

On the other hand, the first Attorney General of Palestine, “lifelong Zionist” Norman Bentwich, contended that “a national home, as distinguished from a state, is a country where a people are acknowledged as having a recognized legal position and the opportunity of developing their cultural, social and intellectual ideals without receiving political rights”.

This position was also consistent with the one expressed a few years earlier by the general secretary and future President of the Zionist Organization Nahum Sokolov. He represented the Zionist Organization at the 1919’s Paris Peace Conference, where made it clear that the

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What Would Constitute Success in Paris?

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 will be in Paris for the climate change negotiations. This is the first 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.]

The latest episode of the long-running drama known as the UN climate change negotiations begins this week in Paris. Commentators are touting the Paris conference as “historic”, “pivotal,” the “last chance” for the world to address the climate change problem. So what would constitute success?

For the past couple of decades, political scientists and international lawyers have debated how to measure the effectiveness of international environmental regimes. The gold standard of effectiveness is whether an agreement solves the problem that it seeks to address. That would require the Paris conference to prevent “dangerous anthropogenic climate change” – the explicit objective of the UN Framework Convention on Climate Change. No one is exactly sure how much global warming would be compatible with this objective; to the extent severe weather events like the 2003 Paris heat wave (.pdf) or Hurricane Sandy can be attributed to global warming, then perhaps we are already in the dangerous zone. At the Copenhagen Conference, the international community defined the goal less stringently, as warming of less than 2° C above pre-industrial levels. But some think that 2° itself would be too much, arguing for limits of 1.5° or even .

So far, the world has warmed by about 1°, according to the latest data from the UK Met Office. This might suggest that we’ve still got some headroom, measured against the 2° temperature. But the climate system has tremendous inertia, so the effects of past emissions have been only partially realized. Even if we stopped emitting completely right now, the world would still warm by another half degree or more before leveling off. And, of course, global emissions continue to go up rather than down, and peak emissions, let alone zero emissions, are still more than a decade away.

The bottom line is that there is no prospect that the Paris conference will, in itself, put us on a pathway to meeting the below-2° limit. The emission reduction goals that countries have submitted as part of the Paris process (known in climate change argot as “intended nationally determined contributions” or INDCs) instead put the world on a pathway to global warming of around 3° or 3.5°. So if we take problem-solving effectiveness as our measure of success, then we are bound to be disappointed.

But few public policies fully solve the problem that they address; by that standard, virtually every public policy falls short. In my view, the more reasonable test is whether the Paris conference results in a significant improvement over what would have happened otherwise. And by this measure, the Paris conference is likely to be successful.

How should we assess whether Paris is moving us in the right direction? I would suggest four elements:

• First, is the Paris agreement global in its coverage?
• Second, have countries pledged to make significant reductions in their emissions?
• Third, does the agreement establish mechanisms to promote transparency and accountability, so that we will know whether countries do what they say?
• Fourth, does the agreement provide a process to to ratchet up its level of ambition over time?

On the first element, the Paris process can already be counted a success. More than 150 countries, representing more than 85% of global emissions, have come forward with INDCs – that is pledges of what they’re going to do to reduce emissions. Compared to the Kyoto Protocol, which even in its prime covered only about 25% of global emissions, this a major step forward.

Second, the INDCs that countries have submitted represent a significant improvement over current policy. According to a recent analysis by the UN Climate Change Secretariat, they would reduce emissions by about 3 gigatons (GT) CO2e in 2025 and 4 GT in 2030, as compared to the business-as-usual trajectory. Although this falls well short of putting the world on a below-2° pathway, global warming of 3° C would still be better than 3.5°, and 3.5° better than 4°, and 4° better than 5°. So if Paris moves us down the scale of likely warming, then this represents progress.

Third, countries seem likely to agree to a relatively robust system of reporting and review. While transparency in itself does not ensure that countries will comply, at least it would allow the international community to assess whether countries are living up to their pledges, and to exert peer pressure if they don’t.

Finally, countries also look likely to agree to come back every five years to take stock of what’s been achieved and how that compares to the 2° goal, and to put forward new, more ambitious emission reduction plans.

So I am cautiously optimistic about the Paris conference. Of course, one shouldn’t underestimate the capacity of the UN climate change process to seize defeat from the jaws of victory. And the victory would, in any event, be only partial. But if Paris establishes a durable framework that is global in scope, provides for transparency, and pushes to strengthen ambition over time, then, for me, that would be a significant achievement and would constitute success.

Whale Wars Truce is Over! Japan Will Resume Whaling Despite ICJ Ruling

by Julian Ku

Reports suggest that the Japanese government will resume whaling in the Southern Ocean near Antarctica early next year.  This news is causing lots of teeth-gnashing and anger in Australia and New Zealand, whose governments had brought and won a recent International Court of Justice decision finding Japan’s previous whaling program in violation of the International Whaling Convention.  The news also reveals (again) the limits of the ability of international dispute settlement system to change a country’s behavior.

Japan had previously said it would abide by the ICJ decision.  It did so by canceling whaling for one season and ending the program that the ICJ had said did not satisfy the “scientific research” exemption.  But Japan’s resumption of its whaling program signals that it believes its new program is consistent with the “scientific research” requirement.  I believe that it has the right to resume a new whaling program under the scientific research exemption without violating the ICJ’s judgment.

Of course, it might turn out that the new program is also in violation of the IWC’s “scientific research” provision, but the ICJ decision from 2014 does not require Japan to completely give up all whaling.  Indeed, although Australia sought a remedy from the ICJ requiring Japan to “refrain from authorizing or implementing any special permit whaling which is not for purposes of scientific research within the meaning of Article VIII..,” the ICJ simply noted that Japan was already under this obligation (see para. 246). Therefore, the ICJ explained: “It is to be expected that Japan will take account of the reasoning and conclusions contained in this Judgment as it evaluates the possibility of granting any future permits under Article VIII of the Convention.”  It looks like Japan has done so, and it has now granted more permits under Article VIII.

Australia’s Environment Minister has said that Japan cannot “unilaterally” decide that its new whaling program is in compliance with Article VIII of the IWC.  Actually, legally speaking, Japan can do just that.  The only legal remedy Australia is left with is another ICJ lawsuit.  But that is going to be a problem since as of October 6, 2015, Japan has withdrawn from the compulsory jurisdiction of the ICJ with respect to “any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea.”  I think Australia might simply argue that Japan is in violation of the previous ICJ decision, but this will be a tricky argument on jurisdiction (and will take another five years to resolve).

So what’s the lesson here? It is risky to place too many of your eggs in the “international court” basket, even when you are suing a liberal, generally international law-abiding country like Japan (Philippines, take note!). It is too easy to either ignore or simply work around the obligations of international courts in these types of cases. And, importantly, while the cost to a country’s reputation may be severe when it violates or works around an international court order, reputation costs are seldom high enough to actually change a country’s behavior.  (For a very good summary of this whole saga, see Philip Clapham’s essay here).  Australia and New Zealand should probably think about some other remedies besides international court litigation.  And I guess the Whale Wars truce is over.

More on Why the U.S. Is Not Violating the Outer Space Treaty By Allowing Asteroid Mining

by Julian Ku

I’ve received some very good (though pretty much all critical) comments to my original post defending the consistency of the recently enacted U.S. Space Act with the Outer Space Treaty. I will concede that my reading of the statute and treaty is not exactly a cut and dried simple legal issue. But I think too much of the reporting on the Space Act has made it seem like it is a clear violation the other way.  (See here, here, and here.)

One thing that few of these articles note is that the U.S. House of Representatives Committee on Science, Space, and Technology did study the question of the Outer Space Treaty when it reported out this legislation.  They reasonably concluded that allowing private companies to exploit celestial bodies is not a “national appropriation” within the meaning of the Outer Space Treaty.  Indeed, this has long been a position of the United States. For instance, the House Committee noted that in 1980, the U.S. State Department’s Legal Adviser explained that

`The United States has long taken the position that Article 1 of that treaty [Outer Space Treaty] . . . recognizes the right of exploitation. We were and are aware, however, that this view is not shared by all States or commentators, some of whom take the position that the nonappropriation provisions in Article [II] of the 1967 Treaty preclude exploitation of celestial natural resources and the reduction to private property.”

It is also worth noting that State Practice seems to lean in favor of allowing the use of materials from outer space. Again, from the Committee’s discussion:

State practice is consistent with finding that exploration and use of outer space includes the right to remove, take possession, and use in-situ natural resources from celestial bodies. The United States, Russia, and Japan have all removed, taken possession, and used in-situ natural resources. These activities have never been protested by a State party to the treaty or judged in a court of law to be in violation of the Outer Space Treaty.

Indeed, some moon rocks taken by the Russian government have actually already been sold to private parties at Sotheby’s auctions in recent years.

Finally, the Committee cites Article VI of the Outer Space Treaty as recognizing that non-governmental entities can carry on activities in outer space, as long states bear international responsibility for those private activities.

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.

I will again note that this reading of the Outer Space Treaty is hardly slam-dunk, but I think it is a quite reasonable one that is at least as persuasive as the interpretation offered by the critics.  I think it is worth noting that State practice leans in favor of the U.S. here, which is not decisive, of course, but it is helpful nonetheless.  I also don’t think the U.S. ever would have committed itself to a flat out ban on commercial exploitation of outer space when it signed the Outer Space Treaty.

In any event, we will see how things spin out. As I noted, it is possible we will one day need an “Authority’ like that created for the international seabed, but not just yet.

International Law Does Not Prohibit Commercial Asteroid Mining. Nor Should It.

by Julian Ku

Last week, the U.S. Congress passed the US Commercial Space Launch Competitiveness Act of 2015 (or the “Space Act”), which will authorize private U.S. companies to own and sell resources they extract from objects in space. Supporters (and detractors) are calling this historic, because it is the first time the U.S. government has plainly authorized commercial exploitation of outer space resources.  Here is some key language from the bill, which President Obama is expected to sign.

§ 51303. Asteroid resource and space resource rights

“A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”.

This provision has been criticized as violating U.S. obligations under the Outer Space Treaty of 1967.  Chief among those obligations is Article I of that treaty:

The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

There is also Article II, which seems to restrict claims of sovereignty in outer space.

Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.
The Space Act of 2015 tries to avoid this potential conflict by limiting itself to authorizing private citizen (as opposed to “national”) exploitation, and subjecting that exploitation to “international obligations of the United States.”  The Act also goes on to “disclaim” extraterritorial sovereignty (shouldn’t that be “extraterrestrial” by the way?)

It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.

I think the law’s backers are correct that it does not violate US treaty obligations. All it does is allow private US citizens to “possess, own, transport, use, and sell” extraterrestrial resources without violating U.S. law.

On the other hand, it is also true that other spacefaring countries could allow their citizens to do the same.  Indeed, I think their government space agencies could probably also do so, als long as they are not “claiming sovereignty.”  Without an explicit international treaty regulating commercial space resource exploitation, it will ultimately be a question of each country’s domestic regulations.   Can the U.S. live with that result?

I think it can.  In my view, the UN Law of the Sea created a complicated bureaucracy for handling management of the international seabed, way before any commercial exploitation of that seabed was even possible.  We don’t know yet what types of exploitation are feasible, and we might as well let this process evolve on its own before demanding a worldwide international treaty on the subject.  There will be plenty of time for that.

Apparently, I’m a 9/11 Truther (Al-Bahlul Revisited)

by Kevin Jon Heller

Only a “truther” who denies that al-Qaeda was responsible for 9/11 could doubt the international law basis for holding al Bahlul accountable for his role in this completed war crime.

So Peter Margulies argues in his latest attempt to defend the indefensible: al-Bahlul’s conviction for the non-existent war crime of conspiracy as an inchoate offence. To describe the accusation as offensive is an understatement, given that it accuses not only me and Steve Vladeck of being 9/11 truthers, but Judge Tatel and Judge Rogers, as well.

Even worse, though, Margulies’ arguments seem to have gotten even more problematic over time. Let’s take an in-depth look at his post. Here is how it opens:

Our amicus brief argued that upholding al Bahlul’s conviction would permit military commissions to try only a “narrow class” of cases outside commissions’ accepted jurisdiction…

Points for openly admitting that the military commissions’ “accepted jurisdiction” does not include jurisdiction over non-existent war crimes such as conspiracy. But no points for the claim that we shouldn’t hold courts to their actual jurisdiction as long as we are only letting them exceed their actual jurisdiction occasionally, in a “narrow class” of cases. You know, when it’s really, really important to let them exceed their actual jurisdiction. Last time I checked, jurisdiction wasn’t just a suggestion about the kind of cases a court can hear.

Margulies:

Al Bahlul challenged his conspiracy conviction on Article III grounds because international tribunals such as Nuremberg have generally declined to try defendants for engaging in an inchoate, stand-alone conspiracy (e.g., an agreement without a completed crime).

Note the fudge: “generally.” Not generally. Always. No international tribunal has ever convicted a defendant of conspiracy to commit a war crime. Not one…

A Treaty or Not a Treaty? My Senate Testimony About the Paris Climate Change Agreement

by Julian Ku

I had the honor and pleasure of testifying today before the U.S. Senate’s Environment and Public Works Committee.  The topic of the hearing was “Examining International Climate Negotiations” and the upcoming conference in Paris. My own contribution argued that an agreement with legally binding emissions reduction obligations should be submitted to the Senate as a treaty rather than as a sole executive agreement.  I further argued that the Senate should require to the State Department to clarify which parts of a climate change agreement are legally binding, and which ones are merely non-binding political commitments.

You can watch the oral testimony and the questions below on C-SPAN (my testimony starts around the 11’40” mark. Almost all of the testimony has to do with the substantive merits of such an agreement (about which I express no opinion), as opposed to the legal aspects. So I will go ahead and declare victory for my argument by default.