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Symposium: Advancing International Law Under the Trump Administration–Some Cautionary Thoughts About Litigation

by William S. Dodge

[William S. Dodge is Martin Luther King, Jr. Professor of Law at the UC Davis School of Law. From 2011 to 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State.]

Among Harold Koh’s many academic achievements, perhaps his most influential has been to articulate a theory of transnational legal process that explains why nations obey international law. According to this theory, public and private transnational actors generate interactions that lead to interpretations of international law that in turn become internalized in domestic law. Once internalized, such interpretations become difficult to change.

In a recent lecture at Washburn University School of Law, Harold used the lens of transnational legal process to examine “The Trump Administration and International Law.” His tour d’horizon is a tour de force, examining the entrenchment of international law with respect to immigration and refugees, human rights, climate change, Iran, North Korea, Russian hacking and cybersecurity, Ukraine, al Qaeda and IS, and Syria. As he writes, “no single player in the transnational legal process—not even the most powerful one—can easily discard the rules that we have been following for some time.”

Harold’s purpose is not simply descriptive. He also sets forth a “counter-strategy” to resist Trump’s assault on international law and international institutions. This strategy includes an “inside strategy” that government officials can use to engage other states, translate international law norms, and leverage those norms as smart power to advance U.S. interests. And it includes an “outside strategy” that non-governmental actors can use “to generate interactions that force interpretations that promote internationalizations of international norms even by resisting governments.”

I want to focus on the “outside strategy,” and particularly its reliance on litigation. “Lawsuits are the paradigmatic example” of the outside strategy, Harold explains. “[I]f a government policy moves in a legally noncompliant direction, an outside nongovernmental group can sue (generate an interaction) that yields a judicial ruling (an interpretation) that the government defendant must then obey as a matter of domestic law (norm internationalization).” There is no doubt that litigation is a critical tool to promote compliance with international law. But litigation can also serve as a catalyst for interpretations that constrain international law.

In an insightful article that should be required reading for any lawyer entering government service, Professor Rebecca Ingber has examined how different interpretation catalysts shape executive branch interpretations in the area of national security. She writes: “Once the government is implicated in a lawsuit, particularly over a matter of national security, nearly all forces align to push the executive to advocate an expansive view of its own authority, to defend past action, and to request a judgment in favor of the government on the broadest possible grounds so as to preserve executive flexibility to the greatest extend possible.” After the executive branch takes a position in the context of litigation, that interpretation can be quite difficult to change.

I witnessed this dynamic first hand when I served as Harold’s Counselor on International Law at the State Department and participated in the interagency process that produced the two amicus briefs for the United States in Kiobel v. Royal Dutch Petroleum. With respect to the question of corporate liability for human rights violations, which posed no direct litigation risk to the United States or its officials and on which the United States had not previously taken a position, it was possible to reach consensus on a position that advanced international law (a position that became entrenched and that the Trump administration repeated in its amicus brief in Jesner v. Arab Bank). But with respect to questions of extraterritoriality, it proved difficult to move away from positions adopted by the Bush Administration in the shadow of the “War on Terror” and allegations of human rights violations by U.S. government actors.

In her article, Rebecca gives the example of the Bush Administration’s “War on Terror” policies. “The Bush years are often cast as a time of momentous Supreme Court pushback against administration policies in areas where presidents had previously been awarded great deference. That is one narrative, and there is truth in it.” But she explains that there is another narrative in which “repeated years of litigation . . . did not radically alter the legal architecture for the Bush Administration’s policies in its ‘War on Terror.’ Instead, this litigation entrenched it.” Despite the desire of the Obama Administration to move in a different direction, the existing executive interpretations made it “exceedingly difficult for the new Administration to change course and suddenly take new positions in litigation, above all those that might constrain government action or fail to defend past government policies.”

Litigation can be an important interaction in the transnational legal process framework. But it can produce narrow interpretations of international law by the executive, which are only sometimes overturned by broader interpretations in the courts. And narrow executive interpretations can become internalized, just as broader judicial interpretations can.

One may be more likely to get broader judicial interpretations when the courts do not trust a particular administration, at least not on a particular issue. That factor may have played some role in the Bush Administration’s losses at the Supreme Court in the “War on Terror” cases, and it could certainly be relevant in litigation challenging some of the Trump Administration’s policies. The probability of a good interpretation from the courts may offset the probability of a bad interpretation from the executive.

Whether litigation is the right counter-strategy also depends, of course, on the alternatives. As Rebecca rightly notes, “litigation may well be the only way to force the executive’s hand.” This may be particularly true for the Trump Administration, in which other potential catalysts (like reports to treaty bodies) are likely to have less impact and other potential interpreters of international law (like the State Department) have already been marginalized.

Finally, one must consider the impact of litigation not just on the executive branch and the courts but also on the broader public mind. A case in point is the litigation challenging the Trump Administration’s Travel Bans, in which the clinics at Yale Law School have played an important role. One by-product of the litigation was a devastating declaration of former national security officials, which later became an amicus brief, confirming that the Travel Ban would likely harm counterterrorism and law enforcement efforts. The litigation has also helped galvanize resistance from members of Congress and state and local governments. Even if this litigation generates narrow executive branch interpretations of international law, and even if courts uphold some of those interpretations, the political impacts of the litigation may yet prove worthwhile.

Transnational legal process provides an important framework for understanding why nations obey international law and how to frame strategies to ensure that the Trump Administration does as well. But it is wise to remember that executive branch interpretations tend to be most regressive when made in the context of defensive litigation, and that internalization can apply to bad interpretations as well as to good ones.

Introducing the Symposium on Harold Hongju Koh’s Washburn Lecture and Article: “The Trump Administration and International Law”

by Craig Martin

[Craig Martin is a Professor of Law at Washburn University School of Law, and is the Co-Director of the International and Comparative Law Center of Washburn Law.]

Over the next few days Opinio Juris will be conducting a virtual symposium to discuss Professor Harold Hongju Koh’s article The Trump Administration and International Law. The article was published in a special Symposium Issue of the Washburn Law Journal, which also includes articles by David Sloss, Peggy McGuiness, and Clare Frances Moran, responding to or picking up on the themes of Harold’s article. The article was in turn based on a wonderful lecture that Harold delivered to an entranced standing-room only crowd at Washburn University School of Law in March 2017. He is expanding the article into a book that is soon to be published by Oxford University Press.

Harold’s article addresses the key question of whether the Trump administration will disrupt America’s relationship with international law and its institutions. It argues that transnational actors both inside and outside the U.S. government are operating to resist such change, and to frustrate or mitigate the Trump administration’s efforts to stretch or break international law. This, Harold argues, is yet another example of transnational legal process, the theory that is of course famously associated with Harold’s name. Transnational legal process theory provides the basis for a counter-strategy to resist the efforts of the Trump Administration.

In broad terms, it suggests the choice of engagement over unilateralism, an emphasis on choosing persuasive legal translation over denying the applicability of international law at all, and the leveraging of “international law as smart power” rather than over-reliance on hard power. All of this, of course, stands in stark contrast to the Trump Administration’s approach to international issues. More specifically, colorfully invoking the metaphor of Mohammad Ali’s “Rope-a-Dope” strategy, Harold explains the process by which transnational actors have and continue to interact with, interpret, and internalize international law, and how this will operate externally to hold the Trump Administration accountable to American international law obligations, and internally to constrain and frustrate the ability of the government to effectively abrogate American commitments and undermine international law and its institutions.

Having thus set out the theoretical account for how transnational legal process may operate, Harold examines a series of specific situations for purposes of illustrating how this process of interaction, interpretation, and internalization, has played out. These case studies run the gamut from the Trump Administration’s approach to immigration and refugees, through the Paris Climate Agreement, the Iran nuclear deal, North Korea, Russian Hacking, the Ukraine, Al Qaeda and ISIS, to the war in Syria. In each case, Harold explores how various actors both internal and external to the administration have responded in a manner that bears out and illustrates the legal process theory account, and how their actions have constrained and frustrated the efforts of the American government.

While Harold’s analysis and overall argument are optimistic and encouraging, in closing he strikes a darker note in cautioning us on what is ultimately at stake. He warns that this is a struggle “between competing visions of a future world order.” His claim is not only that a counter-strategy informed by transnational legal process is currently operating to curb the Trump Administration’s efforts, but that it is essential to prevent “the slow backsliding of our Kantian postwar system into a more cynical, Orwellian system of global governance far less respectful of democracy, human rights, and the rule of international law.” In this sense, it is yet another contribution to the deepening sense that Western liberal democracy and the international law system are confronting existential threats, and provides a powerful argument for ways in which we can all meaningfully respond.

For the symposium we have a group of distinguished scholars who have all done considerable work in different ways on the theoretical issues at play in this piece, and who will discuss various aspects of Harold’s argument. I expect that some will focus on one or more of Harold’s specific case studies, exploring in more detail his theoretical explanations for what is actually going on in each of them, while others may grapple with the application of transnational legal process theory more generally, and whether it is indeed as well suited to the task as Harold suggests. The line-up will be (though not necessarily in the order that they will appear): Bill Burke-White (Pennsylvania), Laura Dickinson (GW), Bill Dodge (UC Davis), Kevin Jon Heller (Amsterdam), Freddy Sourgens (Washburn), and Melissa Waters (Wash U).

It is my hope that this will help to generate a robust discussion, both here in the comments section and elsewhere, and that the discussion in turn will help to inform the development of Harold’s upcoming and important book on this subject.

Is International Law International? Continuing the Conversation

by Anthea Roberts

[This is the last post in our joint symposium with EJIL:Talk! on Anthea Roberts’ new book Is International Law International? If you missed any earlier posts here on OJall of them are linked at the end of this post. Please be sure to continue the conversation here, at EJIL:Talk!, and on our Twitter feed.]

In the movie Shadowlands, the character C. S. Lewis says, “We read to know that we’re not alone.” For me, perhaps it is also true to say, “I write to know that I am not alone.” Implicit in Is International Law International? is a series of questions: Have you seen what I have seen? Do you analyze it in the same way? If not, what has your experience been and what do you make of that? How and why are your reactions similar to or different from mine? And what does that mean regarding whether international law is, should be and can be international?

I want to thank EJIL: Talk! and Opinio Juris for hosting, and the contributors for engaging in, this sort of dialogue. Two common themes of the contributions are that my book represents the start of a conversation rather than the final word and that it provides a platform for future research. I agree. My book is a big-picture macrosketch based on detailed microobservations that seeks to challenge existing understandings. A lot of details need to completed, analyses tested, additional points noted and implications thought through. In the spirit of continuing this exchange, I offer some reflections below.

Before doing so, I wanted to note that, reading the comments, I was struck once more by how much we approach international law from our particular national perspectives. Whether it is Vera Rusinova reflecting on international law through the iron curtain, Hélène Ruiz Fabri drawing connections with debates in the French literature, Marko Milanovic considering the differences he has experienced in the US and UK academies, or Bing Bing Jia providing insights into Chinese international law textbooks, each of us brings our biography into play when analyzing our field. Of course, this observation is part of the point of my book. But it also means that we won’t be able to access the richness of this variety, in both sources and perspectives, unless we diversify our interactions and networks.

Risks and Discomfort

Ruiz Fabri was very perceptive in noting that writing a book like this was a “risky enterprise” and that it “might be a good way to displease many people.” This book indeed deals with touchy subjects. On the personal level, it suggests that we international lawyers are often not as cosmopolitan as we like to think. On the political level, it raises awkward questions about the implications that might flow from different understandings of and approaches to international law in light of changing geopolitical power.

Although the book deals with controversial issues, I think it needed to be written. I am drawn to academic issues that intrigue me or make me feel intellectually uncomfortable. This book did both. Just as many readers have felt unsettled reading it, so I felt unsettled writing it. I coped with that discomfort by seeking to render as balanced a picture as I could, typically presenting both sides of issues rather than taking a normative stand about which one I thought was preferable. I showed that strengths often contain weakness and vice versa. I subjected myself to the same critique as I asked my readers to undertake.

Given the potentially provocative nature of this book, I want to thank my OUP editors John Louth and Blake Ratcliff for supporting it. The book was unlike anything I had done previously. It did not conform to standard approaches to legal scholarship. It was clear from the outset that the work would involve shaking echo chambers and had real potential to offend. Despite these risks, they immediately and intuitively understood what I was trying to do, from our first coffee chat. I am genuinely grateful that they were unwavering in their support and insightful in their critiques.

To my surprise, instead of encountering a wall of hostility, my book has opened rather than closed dialogues. I have received emails from all around the world and often my interlocutors shared personal stories about their experiences of the divisible college of international lawyers in both academia and practice. For instance, much to my regret, I was unable to include an analysis of a Latin American state in the book. Instead of spurning it, numerous Latin American scholars have reached out to tell me their side of this story (e.g., Francisco-José Quintana about the problems with teaching the Falklands/Malvinas dispute in Argentina using UK textbooks).

The book is an invitation for self-critique and dialogue. I hope that it prompts many conversations, even if some of them are uncomfortable. Academia is meant to challenge the status quo and shake up things up. Taking risks is part of the point.

Methods and Layering

In reading the book, Ruiz Fabri found herself wondering about its nature. Was it “A sociological inquiry? A manifesto? A plea? Against arrogance? Against a new Empire? For comparison? For pluralism? Maybe a bit of all this?” This is an insightful question and one that I have pondered more since writing the book. It is also one that Paul Stephan astutely, if partially, answers.

I have come to see this book as embracing what sociologist of globalization Saskia Sassen describes as a “Before Methods” approach. Complex global phenomena and emerging or underanalyzed issues are helpfully dealt with by first stepping back and seeking to destabilize our existing understandings of the world and the conceptual frameworks we use to describe it. Often particular concepts, framings and metrics obscure as much as they reveal. This approach requires one to sketch and project, and to connect microobservations to macroforces in an iterative observational and analytical process.

As Stephan notes, such work must be done analytically prior to many other projects: my book “strips away preconceptions and mystification” with a view to setting the scene for social justice projects and instrumental and empirical analyses. For instance, although the book engages in some empirical analysis, it doesn’t pretend to be exhaustive or a champion of sophisticated methods. Similarly, the book describes and explains international law and lawyers’ fragmented reality but does not take the next step of providing a normative framework for assessing which approaches are better or worse.

Good scholarship is often completed in layers. As Stephan concludes, this book “expose[s] the forces that bring about systematically different cultures of international law in different parts of the world” but leaves others to explore “the link between disaggregated cultures and the international law that results.” It is the horse before the cart. It seeks to open our eyes to many issues, analyze their origins and effects, and provide a framework and vocabulary for talking about them. The book doesn’t answer every question but makes many new questions possible.

The same sentiment underlies Rusinova’s conclusion that the effect of this book will ultimately depend on what other international lawyers do with it. According to Rusinova, the book should be understood as a challenge to international lawyers to ask themselves, “Do I realize which boundaries surround me in the discipline and am I, at least, trying to act above them?” Thus, she concludes that “it is in our own hands to make [the book] change the ‘world of international law.’” Yet, as Ruiz Fabri notes, much will turn on how those in the privileged inner circle (the “International Bubble,” as she calls it) respond to the critique.

Promise and Perils

Jia’s contribution constitutes a very good example of analyzing the promise and perils of comparison. As Jia notes, and as I found through my study, although textbooks and casebooks from some states contain good information about the practices of those states, that does not hold true for all states. In particular, Chinese international law textbooks often draw heavily on the approach of Oppenheim and Brownlie and feature little Chinese practice or views. If these books weren’t written in Chinese (a bit of a giveaway), I could easily have mistaken them for not being Chinese, except for their treatment of a handful of issues like Taiwan and the South China Sea.

Any metric that one uses to compare international law or international lawyers across states will be limited because metrics that make sense in one context often don’t make sense in another. This problem is one of the perils of comparison and it explains why one needs to adopt many approaches and metrics to build up a more complete picture. But it is also part of comparison’s promise. Thus, rather than accept the status quo, Jia suggests that the time has come for China to adopt a new generation of international law textbooks that, among other things, give the reader more information about China’s approach. I concur.

How such a development plays out remains to be seen. The future for Chinese international textbooks seems caught between two forces. On one side, some academics are developing casebooks that are much closer to US-style casebooks, particularly in international economic law. On the other side, the Chinese government has stepped up its censorship of academics and has now sponsored the creation of a quasi-mandatory textbook on international law that is meant to feature Chinese socialist characteristics (though these attributes are apparently pretty sparse in the first edition). This struggle between nationalized, denationalized and westernized approaches is happening before our eyes and may evolve differently with respect to form and substance.

Censorship and Judgment

The last point on censorship links to an important factor that Milanovic and Julian Ku highlight. Not all states have robust traditions of academic freedom or free speech more generally. If we are going to diversify our networks and sources, how should we assess scholarly opinions coming from authoritarian states like China and Russia where there is evidence of significant external and internal censorship? This issue arises in my book in the discussion of textbooks and in my account of the virtual uniformity of Chinese and Russian academic views – as well as their conformity with the positions of their states – with respect to the South China Sea arbitration and Crimea, respectively.

I agree with Milanovic that this issue arises in my book but deserves more explicit attention in comparative international law work going forward. In fact, I am currently working on a piece with a colleague addressing this very issue. But I disagree with Ku’s conclusion that adopting a comparative international law approach necessitates descending into pure relativism. As I say in the book, recognizing “differences in the way international law is understood, interpreted, applied, and approached can be examined without adopting a relativist stance that all positions are equal” and “[w]hether a given position reflects international law depends on many factors, such as the number of states that support it [and] how widespread and representative they are as a group.”

Although I deliberately refrained from making legal judgments in the book as my purpose was to identify, explain and analyze the divisible college, I am not averse to people reaching such conclusions. Much of this is a question of sequencing. My suggested approach is:  (1) seek to engage, listen and understand, (2) seek to test your assumptions and argue your position, (3) identify and justify your framework for assessing different positions, and (4) engage in judgment.  I emphasize steps one and two in my book because too often I see international lawyers go straight to step four, missing steps one and two and simply assuming step three. Steps one and two are crucial for building knowledge, self-awareness and networks. For international law to move forward, however, one of the central challenges will be deciding when to recognize divergent interpretations as valid and when to conclude that some venture beyond the pale (step three). And this may end up being contested.

In developing such frameworks, we all need to be attentive to our blind spots and biases, but we should also pay attention to those of other national communities. I agree with Milanovic’s conclusion that the international reputation of a group of national scholars will depend significantly on their ability to take positions that are independent from those adopted by their state. Discerning the dividing line is most difficult in academies, like the Chinese and Russian ones, that have what Milanovic describes as “some non-negligible level of academic freedom.” Levels of freedom are also likely to vary across fields and issues. Scholars might have more freedom with respect to international economic law and less concerning core national interests, for instance. Although this will always be difficult to judge, it is much harder to do so if you don’t have networks in and knowledge of these academies.

In terms of the South China Sea case, I agree with Ku that the uniformity of the Chinese scholars’ views on the South China Sea worked in the end to damage their credibility and that their “going out” approach worked hand-in-hand with the government’s media campaign. However, at least based on my networks and knowledge – which are necessarily partial and subjective – I think that Western international lawyers often dismiss the objection of Chinese scholars to the SCS tribunal’s jurisdiction as being purely politically motivated when my sense was that it was usually genuinely held. By contrast, I believe that politics were at play behind the lack of criticism by some mainland Chinese scholars of China’s refusal to participate in the arbitration and abide by the award.

In addition to considering academic freedom, we also need to be aware of other socializing and incentivizing factors that might influence academics to align with their states, such as the media they watch, unusually close connections between academia and government (as in the United States) and the strategic use of research funding (as in China). Indeed, Milanovic notes that the United States has a strong tradition of freedom of speech, but non-US international lawyers often find strong synergies between the positions of US international lawyers and the US government and frequently credit that, in part, to the socializing and incentivizing factors that come with the US government/academic revolving door.

We also need to be mindful about how a failure to engage can be interpreted as an unwillingness to listen and how the Western dominance of so many international institutions creates concerns about exclusion and bias. In my book, I document systematic patterns of non-engagement across communities and lack of diversity in international institutions that have nothing to do with concerns about censorship. US academics do not generally ignore French scholars because of concerns about academic freedom. The frequent invisibility of Latin American scholarship and cases within Western international law circles has nothing to do with a concern about propaganda. There is a lot more we could do to diversify our knowledge and networks. And if we are more inclusive on steps one and two, and more reflective and explicit in how we ground our evaluative frameworks in step three, then our ultimate judgments in step four will deserve greater weight.

Conclusion

The obvious question to ask at the end of this back-and-forth is, What’s next? Many of the contributors identify where one could take a scholarly agenda from here, for example, from developing and testing instrumental theories about the link between cultural differences and approaches to international law (Stephan) to encouraging greater internationalization of self-contained academies (Rusinova). One can imagine greater in-depth studies of specific national approaches and larger empirical cross-national comparisons.

My book also works as a springboard to larger normative questions, such as what the existing diversity means for finding and justifying “international law,” especially in an age of shifting geopolitical power (Ku). These questions are currently being addressed by projects such as International Rule of Law: Rise or Decline? As I say in the book’s conclusion, I began the project by seeking to change the question from whether international law is law to whether it is international, but perhaps the challenge of our generation is in recognizing that these questions are inextricably linked.

Is International Law….Law?

by Julian Ku

One of the many reasons I am so pleased that Opinio Juris can host this discussion on Anthea Roberts’ new (and award-winning) book is that it speaks directly to and about this blog’s core audience: students, scholars, and practitioners of international law from all over the world.  When we founded this blog in 2005, we hoped to use the internet to open conversations with other scholars in the United States.  We soon found that the global reach of this blog allowed us to engage scholars and practitioners all over the world, rather than just in the United States.

But over the years, we also learned that the “global” international law audience is narrower than it sounds. Our readership was and is heavily based in the United States, Europe, Canada, Australia, and New Zealand.  This relatively narrow global readership is probably explained (as I learn in Roberts’ book) by the closer ties of language, culture, and academic exchange that exist among “Western” international lawyers.  I also realize now that this is part of the phenomenon of different clusters of international law around the world that is so wonderfully documented and analyzed in Roberts’ remarkable new book.  Her study does more than any other single work to describe and explain a state of affairs many of us in the international law world had sensed but could never fully understand.  There is no doubt in my mind that Roberts has launched an important new challenge to the international law world that even calls into question the idea of international law as law.

Roberts’ prior work, which has now been developed and amplified in her new book, has also influenced my own recent research and writings on China.  The Middle Kingdom is extensively studied and analyzed in Roberts’ work, and it is a key player in her story about how international law seems to differ in meaningful ways across national borders and among ideological and cultural clusters. I am especially grateful that she sought in Chapter 5 to include China’s reaction to the arbitration case brought by the Philippines as part of her case study in how international lawyers can fall into different “silos.” Writing about that arbitration, as readers of this blog may be aware, has been a mild academic obsession of mine for years.

But I do not draw quite the same lessons from this case study as she does. In my view, application of her comparative approach to international law necessitates taking a neutral stance on what might be a better or worse interpretation of international law.  While I agree with one of her main claims – that there are many divergent versions of international law arising out distinct national and regional clusters – I am not sure all such divergences should be treated as good faith differences.  In the case of the South China Sea arbitration, I believe Roberts underplays the importance of how governments can use international law (and international lawyers) as tools in their global diplomatic and public relations campaigns.

Roberts specifically notes how Chinese international lawyers sought to “traverse [] divides” by publishing their views on the South China Sea arbitration in English to reach a global rather than simply a Chinese audience. This is true. But as she also understates the context of these various international law essays. The unanimity among Chinese legal scholars (and practitioners) was an important part of the Chinese government’ broader media campaign to discredit and denigrate the arbitration award and the arbitration process. Their unanimity was trumpeted on various Chinese media sites. It is hard not to see the academic consensus in China as a product (at least in part) of the Chinese government’s influence and control. (Such consensus is also striking in comparison to the quite different anti-government reaction of US scholars to the US defiance of the Nicaragua ICJ judgment).

The Chinese government’s public relations campaign also included slanderous statements suggesting the South China Sea arbitrators had effectively been bribed, and that the Japanese nationality of the individual who appointed the arbitrators undermined the impartiality of the arbitral process. The silence of the Chinese international law academic community in the face of these outrageous statements is also evidence of how important the government can be in shaping a national international law approach.

Thus, while I am very much on board with Roberts’ overall project, I am enough of a practicing lawyer to wonder whether comparative international law can allow us to assess right and wrong interpretations of international law, and whether government intervention should affect such judgments of even relative legal correctness. While I was sympathetic to the argument that the South China Sea arbitral tribunal lacked jurisdiction, I was (and remain) deeply skeptical of the subsequent Chinese argument that the arbitral tribunal’s award is not binding.  I think this is not just a different approach to international law arising out of distinct national or regional silo, but it is a weak, self-serving politically necessary and ultimately ridiculous legal argument. I would grade a student’s paper badly for relying upon this argument. But does comparative international law counsel me to be more sensitive and self-aware of differences in approaches to international law?  Or should the fact that the Chinese government’s attention and control of this discussion lead me to step out of my comparativist role, at least for a moment.

For instance, I also tried to “traverse divides” by publishing my views on how “ridiculous” China’s argument is, both in English, and in Chinese (thanks to an excellent Chinese student translator and the good offices of the Financial Times Chinese edition).  I was gratified that I drew responses from Chinese scholars and I continued my foray in Chinese with this sur-rebuttal.  But the Chinese language version of my essay and sur-rebuttal in the FT was blocked by Chinese censors and have been disappeared from the Chinese internet. The rebuttals of my argument by Chinese scholars, oddly enough, remain available. My argument is not unknown to Chinese scholars, but it clearly has been disapproved of by the Chinese government. That matters, because it deters a robust and meaningful intra-Chinese discussion of an important legal issue.

In other words, while I agree there is real value in a comparativist approach, should such an approach at least discount for governmental intervention to control and shape a national approach? Does such direct governmental intervention undermine the authenticity of a distinct national and regional approach to international law?

For the purposes of her project, Roberts does not have to answer these questions.  But those of us who have benefited from the data and insights provided by her work will have to grapple with such dilemmas.  Roberts teaches us that international law is not very “international.” Does this mean it is also no longer “law”?  She doesn’t say so, but I wonder if her excellent work will ultimately point us down that road.

Mobility and Freedom in the International Legal Academia: A Comment on Anthea Roberts’ Is International Law International?

by Marko Milanovic

I’d find it difficult to think of a book more deserving of the ASIL certificate of merit than Anthea Roberts’ Is International Law International? This is especially so because this is a book about international lawyers, rather than about the law as such; it is a foray into a sociology of our profession, examining in particular to what extent that profession is really a common or shared one. The book explores many themes – internationalism v. parochialism, centre/periphery dynamics, the need for more rigorous empiricism rather than casual reliance on anecdotal evidence. Two themes, however, got stuck in my head as particularly noteworthy – probably also because both were personally relevant and I could relate to them directly as a matter of my own experience.

The first is the nature of the academic markets in international law, especially with regard to their openness to foreigners or outsiders. The second – which is less explicit in Anthea’s book, but is certainly there – is the extent to which the strength and international influence of the local academia in any given society is dependent on the level of academic freedom in that society, most importantly the ability to criticize the conduct of one’s own state or group without running the risk of suffering some significant social sanction. So let me deal with these two themes in a bit more detail.

As for the first, the level of openness of any given academic market to foreigners is in most situations a point on a rather wide spectrum. The language of instruction is of course an important consideration here, but as Anthea shows in the book it is only one among many factors. Of greater importance perhaps is how existing academic hierarchies replicate themselves, through hiring and promotion processes. Even in systems which strongly emphasize meritocracy above all other considerations – and these are probably not in the majority – the criteria for assessing merit can impose structural barriers on outsiders that are very difficult to penetrate, as Anthea well explains. If we compared top US and UK law schools, for example, we would see just how much smaller the proportion of foreign-educated lawyers is in the American academia.

This is not only the case with international law, even if international law is probably the most portable of legal subjects; in Nottingham, for example, we have foreign-educated lawyers teaching everything from constitutional law to public procurement. Nor does this have anything to do with resources – US law schools are by far the richest in the world. It is rather the structural barriers, such as entrenched career pathways and elite credentials, hiring processes (e.g. a 2/3 vote of the whole faculty rather than a decision by a small committee), the great value placed on publication in US generalist student-run law reviews and the devaluation of foreign peer reviewed journals, and so on, that make it much more difficult for an outsider to penetrate the US academic market than is say the case in the UK, Australia, the Netherlands, or Scandinavia.

Similar structural barriers of course exist elsewhere, like the habilitation in Germany, or the agrégation in France, which effectively fence out most of the academic system (sometimes with limited exceptions, such as the Max Planck Institute(s) or Sciences Po). Looking at this matter globally, the more closed systems appear to be substantially more common than the very open ones. This is especially going to be the case if the system of elite reproduction is less meritocratic, and if other disciplines which should intrinsically be more open than law is – the hard sciences, but also the social sciences and humanities – are themselves also closed. If I look at the university sector in the various countries of the former Yugoslavia, for example, the number of academic staff across all fields who were educated primarily outside the region is either zero, or very close to zero. This is certainly true of the international lawyers. And because this experience is again far more common worldwide than is the highly internationalized, open and cosmopolitan one in say the UK, this necessarily means that Anthea is right in arguing that our study of international law has to be a comparative one if it is to accurately reflect our reality.

This brings me to my second theme, which is a bit less explicit in Anthea’s book: the relationship between the external influence or standing of a local academia and the perceived level of freedom that they enjoy in their society, especially in criticising the policies of their government. Anthea touches on this topic when she examines Russian international lawyers’ engagement with Crimea, and Chinese international lawyers’ approach to the South China Sea arbitration (and the jurisdictional issues in particular). Anthea shows how (partially for widespread lack of non-Russian language ability) the conversation of the Russian international law academics is a mostly inward one, while, on the contrary, the Chinese academics have actively engaged with their Western counterparts. In both cases, however, there is near-total alignment between the academic lawyers and the respective official government positions (i.e. the annexation of Crimea was perfectly lawful, and the arbitral tribunal manifestly lacked jurisdiction).

Obviously, this topic is only relevant when there is some non-negligible level of academic freedom, as is in fact the case with both Russia and China. These societies might be authoritarian, but they are far from being North Korea. But there are nonetheless significant formal or informal costs imposed on academics who would defy the official line on matters that are regarded as being of crucial national importance – they might be fired, or not get promoted, or not get a grant, or not be allowed to publish because a supposedly blind peer review just happened to be negative, and so on. I still vividly remember how, for example, in 1998 the Milosevic regime purged Serbian universities or how the official textbook from which I had to study public international law at the Faculty of Law of the University of Belgrade had a chapter on the International Criminal ‘Tribunal’ for the Former Yugoslavia (with the scare quotes, because the official line was that the ICTY was illegally established). Academics in such societies are thus faced with a choice – leave for greener pastures (but most will not have that option, which can be extremely costly emotionally and financially); write on issues less likely to provoke controversy (e.g. air and space law); if pressed, tow the party line or at least stay quiet, under the radar; or dissent, and face the backlash and marginalization.

It is no wonder, therefore, that many of our colleagues who are faced with such unenviable choices will often take the path of least resistance. The more of them do so, the greater the internal pressure on the rest of their peers. But the more this happens, the more likely that the local group of international lawyers will lose influence externally, within with the wider international legal community, which will treat their arguments with suspicion, as nothing more than self-interested apologies.

There are, of course, significant differences between the Russian legal community’s position on Crimea and the Chinese community’s position on the South China Sea arbitration. The former matter touches on the most foundational norms of international law, which are in this case perfectly clear; the latter is jurisdictional, more technical, and more open to different reasonable interpretations. But it is precisely the fact that the jurisdictional question in the South China Sea arbitration is more open that demonstrates that the consensus of Chinese international lawyers on the issue is driven by pressures to align with the official government position, as one would have expected much more disagreement in the absence of such pressure. Technical though the jurisdictional issue might be, it is in the public mind directly related to the sovereignty question, which is part of a core nationalist narrative in China which does not admit of dissent. Externally, the unanimity only serves to undermine itself.

Here would of course come the inevitable charge of Western hypocrisy. Isn’t it equally a fact that the positions of Western international lawyers on Crimea align near-perfectly with the policies of their states? Aren’t we all doing the same thing? To that I would say that this may be true in some cases, but not generally. It was Western international lawyers who, for example, criticized the 2003 invasion of Iraq most forcefully; there are examples beyond number of (say) UK-based international lawyers litigating cases against the UK before domestic and international courts. The charge of hypocrisy has greater bite against Western (and non-Western) governments, than against the legal community as such. And this, I submit, is a direct result of the greater level of freedom that legal academics and practitioners enjoy in the West.

This freedom is, as I noted above, often a matter of degree and context. There are differences among Western countries, and there are other factors at play. For instance, my (anecdotal) impression is that the international law professoriate in the United States is more often in substantive alignment with the positions of the US government than is the case in Europe (the legality of the Iraq war being one example). This is obviously not because the level of academic freedom in the US is any lower, but because of those other factors: the more instrumental, policy-driven approach to law generally; the peculiar, foreign relations law slant to international law instruction more specifically; the fact that many American international law academics were first socialized into the profession as government lawyers; that they similarly first started writing academically on topics that they had dealt with in government; that accordingly they exhibit a greater level of identification with government policy, if not necessarily consciously so. That said, while American international lawyers might perennially be a tad closer to apology than their utopian European counterparts, recall for example how even the most government-aligned collection of such lawyers rejected the legality of President Trump’s missile strike in Syria last year with virtual unanimity.

Of course, even in the free West, in which governments and other social hierarchies do not actively punish academics for saying things that they do not want to hear, there are many subtle and not-so-subtle rewards that the government can dispense – say consultancies, invitations to the ‘room where it happens,’ or nominations for an international judgeship or some other nice such position – which will inevitably influence some in the academia. Especially if they want to be relevant. But that situation is still radically different from the actual lived experience of most members of our profession, which is significantly more constrained. My point is simply this: in engaging with this enterprise of comparative international law, we should always be aware that most international lawyers in the world today do not enjoy the same privileges that those of us based in the West do, privileges which can be lost all too easily if they are not vigorously defended. This is difficult to measure with empirical rigour, but is, I’d submit, at least as important for developing a sociology of our profession as are, say, market mobility or the universalizing reach of the English language or other, more outward-looking, patterns of dominance.

On Is International Law International? ‒ Where Next?

by Paul Stephan

[Paul Stephan is the John C. Jeffries, Jr., Distinguished Professor of Law and John V. Ray Research Professor of Law at the University of Virginia.]

First a disclosure. I have cheered on this project since Anthea Roberts began working on it. We, along with Pierre Verdier and Mila Versteeg, have collaborated on a book of essays as well as an American Journal of International Law symposium that explores the concept of comparative international law across many dimensions. I read earlier manuscripts with interest and enthusiasm. I am, in short, as on board with the project as anyone can be.

What this book does is expose the forces that bring about systematically different cultures of international law in different parts of the world. The point is not simply that some people think differently about the substance and scope of international law. Rather, the book establishes that these differences are systematic and align with traditional territorial divisions. Even accounting for normal discord and dispute among specialists, international law varies from place to place.

This fundamental point, which I regard Roberts as having proven convincingly, points in several directions at once. It invites constructivists to consider how differences in the production of knowledge among cultures leads to differences in the construction of international law. Alternatively, it provides those of us with a rational-choice, international-relations bent to consider how these different cultures relate to differences in state (and regional) interests, and how these interests then shape international law.

This observation opens the door to what the book does not do. Roberts shows us how the production of knowledge and the culture of professional expertise varies within the international law world. This is a tremendous contribution, and makes the book essential reading for anyone wanting to know what international law does in the contemporary world. One might think that these cultural differences produce differences in the content of the international law espoused. What Roberts does not do, however, is explore the instrumental implications of her central findings. She does not seek to connect specific variations in claims about international law to specific facets of the culture out which those claims arise.

There are many good reasons why Roberts does not do this. Thick description, which in the most general sense is what this book does so laudably, strips away preconceptions and mystification. It is, when done well as here, prior to any instrumental analysis. Doing it successfully is a great challenge by itself. If nothing else, the book undermines hegemonic pretensions, which is to say (mostly) the largely implicit assumption of U.S. and European international lawyers that they have successfully achieved cosmopolitan takeoff and thus speak for the entire world when they pronounce on questions of general international law. Adding on a second layer of analysis accounting for the effect of specific cultures on their products is a significantly different project. One cannot (and I do not) fault Roberts for not writing a different book.

Those of us who benefit from her project, however, might well feel the need to figure out what comes next. Now that we know how different cultures of international law are formed, how should we respond? I can think of several possibilities.

One reaction is to treat the book as stripping off the mask of universalism on the part of those who work in the empire’s center (to borrow the language of dependencia theory, for readers old enough to remember that trope) and to draw the obvious conclusions. The enlightened international lawyer should fight for the periphery, demanding the inclusion of voices from the traditionally marginalized communities as well as the suppression (through critique) of the dominant mindset. Demystification thus removes a barrier to international justice.

Wielding Is International Law International? as part of a social justice warrior’s armament is a plausible use of the book, but hardly the only possibility. Stripping away the pretense of universality from the center’s proclamations is useful, but this move alone need not destroy the case for the version of international law that the center espouses. What deep description does not do ‒ indeed, it cannot do ‒ is create a normative framework for assessing particular regimes. It removes the underbrush to allow the observer to better comprehend the social phenomena in play, but it does not supply the framework for evaluation. The presence of mystification alongside the center’s claims may hint at a certain insufficiency ‒ If the claims about international law are already attractive, why pile on with a false picture of universality? ‒ but does not itself prove the case. We still need an argument that explains how particular instances of inclusion promotes justice. Such arguments can be made, but they should not be assumed.

One might instead use the book as a means of teeing up particular empirical projects. To take an area of great interest to me, what explains the similarities and differences between Chinese and Russia claims about international law? Roberts contrasts the insularity of Russian educational and publication practices with the remarkably cosmopolitan approach of Chinese international lawyers, as indicated by both where they go to school and where (and in which language) they publish. Do these differences make a difference in what Russian and Chinese specialists say about international law? The recently published joint principles on the promotion of international law suggest substantial overlap in the Sino-Russo approach to big-picture issues in general international law. Some of these principles, such as the fundamental importance of state sovereignty, are all the more interesting because they depart from European and U.S. postures. Yet in some subfields, such as trade and investment, China’s specialists seem to have embraced differences in scope and substance from the version of international law typically promoted by Russians. Is it culture, interest, or some mix of the two that explains this combination of commonality and difference?

Others might explore other implications. Does the common European framework (admittedly under great stress at the moment) mute what otherwise might be obvious differences in claims that British and French lawyers make about international law, given the significant cultural differences that Roberts documents? Or is there manifest distance between their claims, notwithstanding their (for now) shared European commitments? Or do they mostly agree, the cultural chasm notwithstanding? To take another example, what distinguishes claims about international humanitarian law, both as to content and the rules of recognition, between the P5 states and rich pacifists such as Germany and Switzerland? Culture, or distinct military tasks and capacities?

Is International Law International? doesn’t answer these questions. Rather, what it does is make the questions possible. This is a great achievement. The community of specialists should respond first with admiration, second with humility, and third with a renewed commitment to exploring the link between disaggregated cultures and the international law that results.

The Parochialism of Western Cosmopolitanism in a Competitive World Order

by Anthea Roberts

[Professor Anthea Roberts of Australian National University is the author of numerous publications, including the topic of our joint symposium this week: Is International Law International? This is the first of several posts over the next two days on the argument in her book and reactions to it.]

We are familiar with the question: Is international law law? In my new book, I ask instead: Is international law international? Not particularly, is my answer—at least, not in the way that it tends to be conceptualized by international law academics in different states and in the international law textbooks and casebooks that they use.

When asked to reflect on the professional community of international lawyers, Oscar Schachter memorably called it an “invisible college” whose members were “dispersed throughout the world” yet “engaged in a continuous process of communication and collaboration.” But in rendering that college visible, I find that international lawyers may be better understood as constituting a “divisible college” whose members hail from different states and regions and who often form separate (though overlapping) communities with their own understandings and approaches.

In tracing these divisions and considering their consequences, I make three arguments. First, international lawyers are often subject to differences in their incoming influences and outgoing spheres of influence in ways that affect how they understand and approach international law. Second, actors, materials and approaches from some states and regions have come to dominate certain transnational flows and forums in ways that make them disproportionately instrumental in constructing the “international.” Third, existing understandings of the field are likely to be disrupted by factors such as changes in geopolitical power, making it increasingly important for international lawyers to understand the perspectives of those from unlike-minded states.

My book invites international lawyers to look in the mirror to discern and become more reflective about their blind spots and parochialism. It encourages international lawyers to recognize and speak openly about some of the socializing factors, incentives and power dynamics that shape their divisible college. It suggests that they try to see the field through the eyes of others and to diversify their sources, networks and perspectives. This call is particularly appropriate for Western international lawyers—myself included—who often study, work and publish in a Western bubble, which makes it harder for us to understand and adjust to the newly emerging competitive world order.

From National to Western Parochialism 

In an earlier blogpost titled “With Blinders On?” on Just Security, I argued that US international law often gives the impression of being US foreign relations law under a different name. By way of example, I pointed to how unusually nationalized US international law casebooks were in terms of how heavily they relied upon US cases, executive practice, legislation, academics and publications. This national focus both reflects and reinforces what Samuel Moyn has insightfully described as the “Parochialism of American Cosmopolitanism.” US insularity has many causes and consequences, from American power and exceptionalism to the locations where US international law academics typically study, work and publish.

It is common for other Western international lawyers to see such reports and feel a slight sense of glee or superiority. “Those crazy Americans,” many would say, with a knowing smile and a roll of the eyes, safe in the knowledge that they could not be accused of similar parochialism. Yet one thing that really struck home for me in this study was that though I and many of my Western colleagues were not guilty of national parochialism, we were exceedingly guilty of Western parochialism. This issue seemed to be a fitting one to raise on the European Journal of International Law’s blog and the US blog Opinio Juris.

Let me give you an example that follows from my case citation analysis on Just Security. In that piece, I pointed to how US international law casebooks were the only ones that contained a higher—and, indeed, significantly higher—percentage of cases from their own domestic courts (64%) than from international courts and tribunals (31%). To international lawyers from many other Western states, these results seem ridiculous. But what if one instead asks what percentage of all of the domestic cases cited—whether from a state’s own courts or from foreign courts—come from Western states, by which I mean states in the Western Europe and Others Group? Suddenly, the US books are no longer outliers.

 

Between 96% and 99.6% of the domestic cases cited in the most commonly used international law textbooks in these three Western states (France, the United Kingdom and the United States) come from—you guessed it—Western states. Like most international lawyers, I was aware of a level of Western bias in my field. Nevertheless, I was surprised by how stark it was when I started looking at the numbers. This pattern didn’t seem to deserve the moniker “international.”

Of course, one could leap to argue that perhaps this pattern just reflects the facts on the ground. The vast majority of domestic decisions on international law may actually have been issued in Western states, so this depiction simply reflects reality. I suspect that this is not the whole story. But even if it were, this circumstance should make us consider in more detail the biases built into the very metrics that we use when seeking to understand international law. To what extent do our metrics reflect the approaches to law we are used to dealing with domestically? And to what extent do they give us a skewed understanding of the world by focusing on some states over others?

As an English-speaking, common-law-trained lawyer, I never thought it odd when I first studied international law that an important way to understand the field was through case law, both domestic and international. This study made me much more conscious of the fact that when one applies this metric, it results in outsized emphasis on the practice of Western, democratic states in general, and English-speaking, common-law ones in particular. At the same time, this metric renders almost invisible the practice of non-Western, non-democratic, civil law states. China and Russia have made important contributions to international law practice, but you won’t usually find it in their domestic courts.

Analyzing this issue among others helped me to realize that some of the approaches to international law that seem so natural to certain international lawyers can produce an effect equivalent to looking at the field through blinders. As with the US example above, this parochialism has causes and consequences, from Western power and exceptionalism to the locations where Western international law academics study, work and publish. That many Western international lawyers are trapped in a Western bubble will not surprise anyone from outside the West or those who have read or adopted Third World Approaches to International Law. But it is an uncomfortable reality that few in the West sufficiently acknowledge, let alone contemplate its possible consequences.

From Dominance to Disruption

The ideal of international law suggests that it is constructed by drawing equally on people, materials and ideas from all national and regional traditions. In reality, some national and regional actors, materials and approaches have come to dominate much of the transnational field and international lawyers’ understandings of the “international.” This point holds true for Western actors, materials and approaches in general, and Anglo-American ones in particular. The case law cited above represents a stark example of this pattern, but many others characterize the field as well, ranging from who appears before international courts and tribunals to which sources and practice these courts typically invoke.

Recognizing this situation made me wonder about how some of these patterns might be disrupted by forces such as changing geopolitical power. After the relative hegemony of Western international law approaches in the post–Cold War period, the world is entering into what I refer to as a “competitive world order” in which power is diffusing from West to East and from North to South.  In the coming decades, the international order is unlikely to be dominated by Western, liberal democratic states to the same extent as before. A significant standoff is also emerging between Western, liberal democratic states and non-Western authoritarian ones, most notably China and Russia, across multiple domains.

Three things have become clearer since I completed this book in late 2016. First, the United States and the United Kingdom have seriously stepped back from their position as global leaders following Donald Trump’s election and the Brexit vote. Anglo-American approaches that have featured so prominently in defining international fields in the last few decades seem to be quickly receding in importance. On many issues, from trade to climate change, the West is divided and weakened. American global leadership is in question and its prestige is tarnished.

Second, several non-Western states are more actively seeking to assert themselves on the international stage. China is a prime candidate, exemplified by President Xi’s endorsement of economic globalization and expansive Belt and Road project. But these aspirations underlie many other developments, such as the battle in the recent ICJ elections between India and its former colonial master, the United Kingdom, which led for the first time to a British judge not sitting on the Court. This vote represented a sea change, breaking the traditions of granting the P5 informal permanent seats on the Court and casting votes according to informal regional group quotas.

Third, states are more openly acknowledging the emergence of a new era of great-power politics and ideological competition. Specifically, the December 2017 US National Security Strategy describes a newly emerged “Competitive World” in which great-power competition has returned and it characterizes China and Russia as “revisionist powers” seeking to “challenge American power, influence, and interests” and to “shape a world antithetical to U.S. values and interests.”

In this new competitive global order, international lawyers of all stripes will need to develop a greater awareness of the diverse frameworks and narratives through which international law events are understood and arguments are made around the world. The first step in building this understanding is for international lawyers to diversify their sources and networks in an effort to see the world from different perspectives and through other eyes. The motivation for taking this step can be founded in cosmopolitan idealism (thinking international law should be more inclusive) or hard-bitten realism (along the lines of “know thy enemy”). Either way, knowledge is key, whether one ultimately accepts the alternative approaches as valid or not.

Developing such an understanding can be hard for Western international lawyers because often where we study, work and publish adds little to diversifying our perspectives. Just as those sitting in the United States often find it hard to look beyond their national standpoint, so many Western international lawyers find it hard to look beyond their geopolitical perspective. Our networks and sources are typically not national, but neither are they fully international. Yet, as power becomes more disaggregated among a larger number of more diverse states, international lawyers will experience a heightened need to adopt a “comparative international law” approach to come to grips with these differences.

In seeking to develop such an understanding, international lawyers must also be aware that some transnational flows are likely to be asymmetrical, leading to different patterns of diffusion and knowledge. For instance, elite Chinese international lawyers are far more likely to study in Western states than vice versa. Thus, Western materials and approaches are more likely to be found in China than the reverse (the power of diffusion), but Chinese international law academics are more likely to exhibit broad comprehension of Western perspectives on international law than the reverse (the power of knowledge). As China becomes an increasingly significant international player, it will want to disseminate its own approaches to international law more widely, whereas international lawyers in the West will need to deepen their knowledge of China’s interests, interpretations and approaches.

Conclusion

International law aspires to be universal; but it is also, and inevitably, a deeply human product. No international lawyer can understand all aspects of the field from all viewpoints, myself included. We are all prisoners of our own networks, languages, education, histories and trajectories. For this reason, this book should be understood as a conversation starter rather than the final word on the subject. It seeks to render into words, and provide a framework for understanding and analyzing, experiences that many international lawyers have had and yet are often not spoken about or are confined to conversations over cocktails rather than deemed worthy of scholarly treatment.

It is this sort of dialogue that I am grateful to be starting with this thought-provoking collection of international lawyers. This book raises many questions and offers only some answers. I am not yet sure what it all means or where we go from here. As the very definition of a parochial English-speaking, Western international lawyer, I have much to learn and I look forward to seeing my book—and the transnational field of international law—through the eyes of my interlocutors.

The PTC’s Bizarre Request for Additional Information About Afghanistan

by Kevin Jon Heller

As Patryk Labuda noted earlier today on twitter, the Pre-Trial Chamber (PTC) has ordered the OTP to provide it with additional information concerning the investigation in Afghanistan. Here are the key paragraphs of the order:

3. The Chamber observes that the Prosecutor seeks authorisation to initiate an investigation for crimes committed on the territory of Afghanistan from 1 May 2003 onwards, as well as crimes committed within the context of the situation in other States Parties from 1 July 2002 onwards.2 However, the supporting material provided, particularly in relation to the structure, organisation, and conduct of the Afghan Forces – collectively referred to by the Prosecutor as Afghan National Security Forces or Afghan National Defense and Security Forces (“ANSF”) – mostly falls within the time period 2011 to 2014. Further, little to no information has been provided regarding the structure and organisation of the Islamic State operating in Afghanistan, also refer red to as “Daesh” or “Islamic State Khorasan Province”3. Similarly, the information provided with respect to the structure of the United States of America (“US”) forces falls mainly within the period of 2001-2008, with regard to interrogation policies of the US forces within the period of 2001-2006 and with regard to the conduct of US forces within the period of 2003-2011.

4. The Chamber is of the view that further information is required for the Chamber’s determination under article 15(4) of the Statute. Accordingly, it orders the Prosecutor to submit to the Chamber the following:

a. Any publicly available report from the United Nations Assistance Mission in Afghanistan (“UNAMA”) on the treatment of detainees, apart from the reports from 2011, 2013, 2015 and 2017 already submitted;

b. Any publicly available report from the Afghanistan Independent Human Rights Commission (“AIHRC”) on torture, apart from the report from 2012 already submitted;

c. The United Nations (“UN”) Secretary-General reports to the General Assembly on the topic: “The situation in Afghanistan and its implications for international peace and security”, from the years 2003, 2004, 2010, 2013, 2014, 2015, and 2017;

d. Any publicly available report from the UN Secretary-General to the General Assembly on the topic “Children and armed conflict in Afghanistan”, apart from the report from 2008 already submitted;

e. Further clarification and information, to the extent possible, about the structure and organisation of the Islamic State operating in Afghanistan; and

f. Further clarification and information, to the extent possible, about the structure of the US forces for the time period after 2008; for the interrogation policies of the US forces for the time period after 2006; as well as for the conduct of the US forces for the time period after 2011.

This is actually the second time that the PTC has asked for more information. On 5 December 2017, it ordered the OTP to provide it with “media reports and article 15 communications concerning allegations attributed to special forces of a number of international forces operating in Afghanistan,” as well as as a list of incidents where, in the OTP’s view, “there is a reasonable basis to believe that crimes falling within the jurisdiction of the Court were committed during military operations conducted by international military forces.”

The first request made some sense, given that the PTC generally asked for information either possessed only by the OTP (the communications) or reflecting of the OTP’s internal analysis of the situation in Afghanistan (the list of incidents). The new request, however, is bizarre. To begin with, there is no reason that the PTC could not obtain the information in the first four categories itself, given that it specifically wants the OTP to provide it with “publicly available” information. I know for a fact that the judges have legal officers and access to google. Any reasonably competent researcher could obtain the relevant reports in an hour or so.

A similar criticism could be offered of category five — assuming that the request is not based on the PTC’s belief that the OTP has non-public information about the structure of IS — as well as of the first two requests in category 6. After all, the OTP’s information about interrogation policies comes largely from publicly available sources such as the summary of the Senate Torture Report.

The final request in category 6 — about the conduct of US forces after 2011 — makes some sense, given that the PTC is basically asking the OTP to justify its conclusion that there is a reasonable basis to believe US forces are responsible for mistreating detainees. But I share Patryk’s confusion about why the PTC thinks it needs that information to decide whether to authorize the Afghanistan investigation. Art. 15(4)’s “reasonable basis to proceed” standard is anything but onerous. Such a basis exists, according to Art. 53, as long as the available information (1) “provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed”; (2) admissibility is not an issue; and (3) there are no “substantial reasons to believe that an investigation would not serve the interests of justice.” There is no question that the OTP’s request for authorization satisfies requirements 1 and 3, and it cannot seriously be argued that complementarity — the first aspect of the admissibility requirement — counsels against opening the Afghanistan investigation. As the request itself notes, none of the relevant parties (the Afghan government, the US government, and the armed groups) have have investigated or prosecuted those most responsible for international crimes in Afghanistan.

Which leaves gravity, the other aspect of admissibility. The only plausible interpretation of the PTC’s order is that it does not think it can assess the gravity of the situation in Afghanistan without the requested information. But that makes little sense. Can it be seriously maintained that the collective actions of the Afghan military between 2011 and 2014, the actions of the Taliban and IS since 2003, and the actions of US forces and the CIA between 2003 and 2011 are not sufficiently grave to warrant a proprio motu investigation? I dare anyone to read the OTP’s superbly argued and documented 181-page request for authorization and reach that conclusion. (Especially when Afghanistan is compared to, say, the Burundi investigation, which the PTC had no trouble authorizing.)

To be sure, that does not mean the OTP has provided sufficient information concerning the actions of all of the parties at all of the relevant times. But that is where the final clause of Art. 15(4) comes in (emphasis mine):

 If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

If the OTP brings a case against an individual whose criminal responsibility cannot be properly assessed without additional information of the kind the PTC wants, it can demand that information when the defendant challenges admissibility or the OTP seeks confirmation of charges. There is no reason why the PTC should demand that information now.

I have little doubt that the OTP will quickly comply with the PTC’s order. But there is no legal or evidentiary reason why it should have to. The PTC already has more than enough information at its disposable to authorize the Afghanistan investigation.

Yes, the Rule of Law Must Remain Central to the Debate on Trumpism

by Ian Seiderman

[Ian Seiderman is the Legal and Policy Director, International Commission of Jurists]

Andrew O’Hehir, an ordinarily astute analyst of US political skullduggery, adopts a contrarian posture when it comes to Trump, Trumpism and the rule of law. He thinks that all the brouhaha about trampling on cherished rule of law traditions misses the point. What’s so precious anyway, he suggests, about mutable law written by corrupt, unprincipled or ideologically charged politicians? Writing in Salon recently, O’Hehir characterizes the rule of law as “a poorly defined principle”:

It seems ludicrous to claim that anyone, of any party or any ideology, actually sees the law as a neutral or abstract force rather than a naked instrument of power.

Nothing has traditionally been more central to Americans’ quasi-religious understanding of their democracy than the importance of the rule of law, which can be broadly defined as the notion that laws should govern people rather than the other way around. (Spoiler alert: There’s an enormous paradox baked into that from the beginning, since it’s always people with power who make the laws in the first place.) That was essentially the basis for the constitutional separation of powers laid out by Thomas Jefferson and James Madison, which was meant to ensure that the law itself would remain independent of those who enacted it, enforced it or interpreted it.

O’Hehir goes on to point out the obvious: that certain long discredited tenets like the absolute sacrosanctity of property rights and the natural order of slavery were once grounded in principles of law in the United States. He adds that it is in fact the contested political terrain of liberal democracies with their market economies that “produce [a] vision of the law as a neutral, independent and almost mystical force that stands outside the control of any person or any party.”

For those of us who consider the rule of law to be a near-universal principle that can operate comfortably within a broad – though hardly infinite – range of political and economic arrangements, O’Hehir’s arguments do not sit well. He is hardly the first commentator to assume that the “rule of law” is tantamount to “rule by law”: indeed there are advocates of this “thin” notion of the rule of law, epitomized by the writings of 19th century British jurist A.V. Dicey and the “Singapore model”. But this line of thinking ignores the now more dominant conception of the rule of law as not simply a value neutral construct addressed to forms and procedures, but a norm-laden overarching governance framework. (In fairness to O’Hehir, his point is ultimately that the rule of law is an elusive concept, not that it must mean rule by laws imposed by the powerful.)

While the normative concept of the rule of law has long antecedents, a watershed moment for its entrenchment in international law discourse was the Nuremberg and other legislation that emerged during the Third Reich. Thus the Justice Case (United States v- Alstoetter) before Military Tribunal III, the defendants that included judges, prosecutors and officials of the German Ministry of Justice could be held responsible for a criminal enterprise by the very fact that they enacted or enforced legal statutes and decrees, such as the Night and Fog decree. Respecting those perverse laws necessarily meant not respecting the rule of law.

The organization which I serve, the International Commission of Jurists, devoted the first 15 years of its existence during the 1950s and 60s, to defining what we then called the “dynamic” conception of the rule of law. The idea was that the rule of law is not an abstract notion, but necessarily tied to other legal and normative content, especially human rights principles. Rule of law was a broad organizing concept under which a range of correlatives principles could be grouped. And to O’Hehir’s point, those normative principles are quite apart from the underlying subject matter of particular statutory legislation or administrative rules at issue. This view has over time gained widespread international currency, promoted by leading judges, like the late Lord Tom Bingham, endorsed at the political level and serving the basis for major work from UN agencies such as UNDP and OHCHR.

A definitive enumeration of rule of law principles may have so far eluded universally accepted codification, but building on the historic work of the ICJ there have at least been attempts at enumeration. One example, where most of the elements are more or less uncontroversial, has the imprimatur of the States of the UN Rights Council. Its Resolution on human rights, democracy, and the rule of law, adopted in 2012, highlights, among many other elements, the principles of the separation of powers; legality; equal protection before courts and under the law; non-discrimination; accountability, including criminal accountability for human rights and IHL violations; the independence and impartiality of the judiciary; the subordination of the military to civilian authorities; access to justice; gender equality; and the right to effective remedies for rights violations.

Whether adherence to rule of law in this kind of progressive framing is by itself sufficient to address the myriad transgressions by Trump and his acolytes, is questionable, but it is certainly part of the equation. For instance, the idea that a State’s prosecution services must be functionally independent of the political arms of the executive is a well entrenched rule of law principle which Trump and his subordinates have certainly run over rough shod, especially in respect of the FBI and Special Counsel investigations on “collusion” and obstruction of justice. The fact that some administered laws could themselves theoretically run afoul of the rule of law or constitute poor policy is a critical but distinct issue that should not blind one to the indispensability of the rule of law itself.

Activating the Crime of Aggression: A Response to Stürchler

by Kevin Jon Heller

Nikolas Stürchler, the Head of International Humanitarian Law and International Criminal Justice Section at the Swiss Federal Department of Foreign Affairs, has a new post at EJIL: Talk! discussing the ASP’s decision to completely exclude states parties from the crime of aggression unless they ratify the aggression amendments — the “opt-in” position advocated by a number of states, most notably the UK, Japan, and Canada. The post is very long and quite technical, so I won’t try to summarise it. Basically, Stürchler argues that the judges are still free to adopt the “opt-out” position, because the Resolution “confirming” the opt-in position, despite being adopted by consensus, conflicts with Art. 15bis(4) of the Rome Statute, which reflects the opt-out position. Here are the relevant paragraphs:

What remains is an operative paragraph 2 that, like the second sentence of paragraph 5 of article 121 of the Rome Statute which it seeks to leverage, stands in contradiction to paragraph 4 of article 15bis of the Rome Statute. Paragraph 4 of article 15bis literally asserts that the Court has jurisdiction over a crime of aggression “arising from an act of aggression by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar.” In this sense, it is somewhat difficult to argue that operative paragraph 2 is simply a case of interpreting or clarifying the crime of aggression amendments. If the intended point of operative paragraph 2 is to revise paragraph 4 of article 15bis, the problem is that it was not passed pursuant to the Statute’s amendment provisions. One could argue that the Assembly did no more than clarify that the second sentence of paragraph 5 of article 121 fully applies, thus conditioning the application of article 15bis on a State Party’s ratification or acceptance, but this nonetheless would seem to imply a revision of the plain reading of article 15bis.

Be it as it may, with the Assembly having achieved activation, it is now up to the Court to determine the extent of its jurisdiction over acts of aggression committed by nationals or on the territory of non-ratifying States Parties. It is for this reason that the reference to the independence of the judges in operative paragraph 3 is so important. Pending a clear pronouncement by the Court, the only way for any State Party to legally ensure that its nationals fall outside the remit of the ICC’s jurisdiction continues to be to file an opt-out declaration in accordance with paragraph 4 of article 15bis of the Rome Statute.

I want to make three quick points here. The first is that, in fact, Operative Paragraph 3 (OP3) of the Resolution is completely irrelevant to the jurisdictional question. The judges are independent because of Art. 40 of the Rome Statute; OP3 simply reiterates their independence. So the judges would have the right to decide on the jurisdictional question even if OP3 was not included in the Resolution. (In that regard, I’m not sure why the states promoting the opt-in position were so opposed to OP3. A paragraph that tried to take away judicial independence concerning the interpretation of the new crime of aggression would have been patently ultra vires.)

The second — and more important — point is that Stürchler’s argument about the conflict between Operative Paragraph 2 (OP2) and Art. 15bis(4) is remarkably selective. The underlying principle is that the ASP cannot adopt a provision that conflicts with an article in the Rome Statute unless it formally amends the Rome Statute itself. As he writes, “[i]f the intended point of operative paragraph 2 is to revise paragraph 4 of article 15bis, the problem is that it was not passed pursuant to the Statute’s amendment provisions.” I agree with the principle! But here is the problem: Art. 15bis(4) was also not adopted pursuant to the Rome Statute’s amendment provisions. Art. 121(5)’s second sentence “literally asserts” that, “[i]n respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.” Art. 15bis(4)’s requirement of an opt-out thus can only apply to a state that has ratified the aggression amendments. If a state does not ratify the amendments, Art. 121(5) — which pre-existed Art. 15bis(4) — controls, the unamended Rome Statute applies to that state, and the Court has no jurisdiction over an act of aggression committed by that state’s nationals or on its territory.

This is not — or should not be — a controversial point. Not even the opt-out positions’s most fervent defenders claim that the adoption of Art 15bis(4) was consistent with the amendment provisions in Art. 121(5). Instead, they argue that the ASP agreed by consensus to apply only the first sentence of Art. 121(5), excluding the inconvenient second sentence. Stürchler’s own principle, therefore, means that the judges are perfectly free to ignore Art. 15bis(4) and apply Art. 121(5) as written — thus ending up with the same opt-in provision that OP2 is designed to confirm. Stürchler and the other opt-out proponents cannot have it both ways: either both OP2 and Art. 15bis(4) are valid (in which case opt-in applies) or neither of them are (in which case opt-in applies).

The third and final point is that Stürchler’s principle — that the ASP cannot adopt a provision that conflicts with an article in the Rome Statute unless it formally amends the Rome Statute itself — supports what I argued a few weeks ago: that the new weapons amendments adopted by the ASP apply to non-states parties even though the ASP declared that they do not. As I noted in that post, the ASP did not amend the Rome Statute to exclude non-states parties, as it did with the crime of aggression. Instead, the ASP simply confirmed its understanding that the new war crimes (covering the use of biological, fragmenting, and blinding weapons) would not apply to non-states parties. According to Stürchler’s principle, therefore, the judges are free to ignore the ASP’s declaration and apply the Court’s normal jurisdictional regime in Art. 12(2) to the new war crimes — which means that the Court has every right to prosecute the national of a non-state party who uses a prohibited weapon on the territory of a state party.

The Constitutional Conflict in Turkey: Is There Still an Effective Remedy for Human Rights Violations?

by Massimo Frigo

[Massimo Frigo is the Senior Legal Advisor of the International Commission of Jurists, Europe Programme.]

A legal dispute between first instance ordinary courts and the Constitutional Court in Turkey is leading the country into a major constitutional conflict and severely limiting the chance of people in Turkey to access effective remedies for human rights violations.

On 11 January, two criminal courts in Istanbul refused to apply the rulings of the Constitutional Court ordering a remedy for breaches of the right to liberty and freedom of expression of two journalists, Mehmet Altan and Şahin Alpay, detained on remand while under trial for terrorism offences and alleged links to the attempted coup of 15 July 2016.

As reported by Professor Başak Çalı, the lower courts based their decisions on their finding that the Constitutional Court had exceeded its scope of competence when assessing the reasons for the pre-trial detention of the journalists. They held that the Constitutional Court “has not been given powers to review and assess evidence in an ongoing trial”; that “review of the reasons for detention was contrary to the law that established the right to individual petition”; and that “first instance courts do not have to write all the reasons for continuing detention in an ongoing trial, as this may constitute evidence of judicial bias as to the outcome of the case.”(Başak Çalı, Will Legalism be the End of Constitutionalism in Turkey, Verfassungsblog). In addition, they refused to execute the rulings of the Court because they had not been published on the Official Gazette yet. This ground is now moot following publication on 19 January.

The soundness of the main ground of challenge, the lack of competence of the Constitutional Court, that closely tracks the prior statement by the Deputy Prime Minister, Bekir Bozdağ, must be seriously questioned.

As affirmed by article 148.1 of the Turkish Constitution:

The Constitutional Court shall examine the constitutionality, in respect of both form and substance, of laws, decrees having the force of law and the Rules of Procedure of the Grand National Assembly of Turkey, and decide on individual applications.

The Constitutional Court has the power to annul laws on grounds of unconstitutionality when so requested by the President of the Republic, parliamentary groups of the ruling party or of the main opposition party, or one-fifth of the members of the Grand National Assembly of Turkey, within 60 days from the publication of the law (articles 150-151 of the Turkish Constitution). Additionally, any Turkish courts may request the Constitutional Court to declare the unconstitutionality of a legal provision at stake in the case before it (article 152, Turkish Constitution).

Finally, in 2010, the Constitution was amended by popular vote to introduce a system of individual applications before the Constitutional Court for human rights violations. This reform enjoyed the political support of then Prime Minister, Recep Tayyip Erdoğan. According the article 148.3 of the Turkish Constitution:

Everyone may apply to the Constitutional Court on the grounds that one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights which are guaranteed by the Constitution has been violated by public authorities. In order to make an application, ordinary legal remedies must be exhausted.

By its plain language, this provisions means that if any individual in Turkey considers that his or her rights have been violated, she or he may bring this case to the Constitutional Court if no other effective remedy is available in the country.

If the Constitutional Court, in an individual application case, finds that a violation of human rights comes from a court’s decision, it must remand its decision to the lower court that must rule again in accordance with the ruling of the Constitutional Court (see, article 50 of the Law on the Constitutional Court).

This system was introduced to meet Turkey’s obligations under the European Convention on Human Rights and to resolve human rights disputes domestically before bringing cases to the European Court of Human Rights in Strasbourg. The European Court has faced severe stresses arising from a case overload particularly from Turkey.

The individual application remedy started to function in 2012. The European Court of Human Rights has considered that, at least as formally designed, it fulfills the procedural requirements of an effective remedy for human rights violations for the last years and has been dismissing a considerable amount of cases on the basis that this remedy offered by the Constitutional Court must be resorted to first (see, among others, Uzun v. Turkey).

Some of these dismissed cases were brought by former judges and public servants contesting alleged violations of the Convention arising under the current state of emergency instated following the attempted coup d’Etat of 15 July 2016 (see, among others, Mercan v. Turkey). They arose from the thousands of dismissals and detentions that followed the coup attempt.

Secondly, and exactly because this is a remedy of individual application or amparo on the constitutionality of a concrete situation and not only an abstract point of law, the Constitutional Court needs to review the assessment of evidence by lower courts in the same way as the European Court of Human Rights does. For example, in the cases of the detained journalists that have been at the heart of the current constitutional dispute, the Court had to assess whether their right to liberty was violated.

Pre-trial detention, under article 5 of the ECHR and article 19 of the Turkish Constitution, may be ordered only if there is strong suspicion of the persons having committed the offence, among other criteria. For example, in Stepuleac v. Moldova, the European Court went into this level of detail to assess the existence of “reasonable suspicion”:

  1. … the only ground cited by the prosecuting authority when arresting the applicant and when requesting the court to order his pre-trial detention was that the victim (G.N.) had directly identified him as the perpetrator of a crime … . However, it also notes that the complaint lodged by G.N. did not directly indicate the applicant’s name, nor did it imply that all the employees of the applicant’s company were involved … . Indeed, only T.G. and the applicant were arrested and not all the employees. …. It is to be noted that the applicant was never accused of condoning illegal activities on the premises of his company, which might have explained his arrest as Tantal’s director, but of personal participation in blackmail.

  2. Moreover, the Court notes that the domestic court, when examining the request for a detention order … , established that at least one of the aspects of G.N.’s complaint was abusive. In particular, his complaint of unlawful detention contradicted the official detention order issued by the deputy prosecutor of Chişinău. This should have cast doubt on G.N.’s credibility. The conflict he had with the company’s administration … gives further reasons to doubt his motives…..

How indeed could a court determine whether the right to liberty has been respected without reviewing the assessment of whether there was “strong suspicion” according to the evidence reviewed at first instance?

Thirdly, judgments of the Constitutional Court are final and “binding on the legislative, executive, and judicial organs, on the administrative authorities, and on persons and corporate bodies” (article 153, Turkish Constitution).

In countries that have constitutional courts, their judgments are always binding on all State powers and cannot be challenged, apart from bringing the case to a competent international authority, for example in respect of human rights violations.

It is far out of bounds for a lower court to tell a Constitutional Court what its scope of competency is. If lower courts are able to challenge the binding nature of the Constitutional Court’s decision – as happened in the Istanbul courts in January – a dangerous level of uncertainty runs throughout the legal system without any clear lines of legal authority. It means that no person may rely on a final judicial decision establishing what the law is in any domain regulated by law. The Turkish legal system in all its tenets, from criminal, civil, administrative and commercial law, becomes unpredictable, and open to arbitrariness in its functioning.

The Constitutional Court and its individual application system had represented a major advancement in terms of human rights protection in the Turkish legal system. Trusting its effectiveness, the European Court of Human Rights has since dismissed countless applications for violations of the European Convention on Human Rights for not resorting to this remedy first.

If lower judges in Turkey begin to disregard or distance themselves from the rulings of their Constitutional Court, the European is not likely to continue to regard the remedy as presumptively effective and there will be nowhere else for victims in Turkey to go to bring cases of allegations of human rights violations. Nowhere but Strasbourg …

No, There Is No International Legal Basis for the “Bloody Nose” Strategy

by Kevin Jon Heller

At Lawfare yesterday, two law professors at West Point defended the US’s right to attack North Korea if it tests another nuclear weapon or fires another missile into Japanese waters:

North Korea is extraordinarily close to becoming a . This very real possibility has reportedly resulted in the United States debating a limited military strike dubbed the “bloody nose” strategy. In effect,  would allow for a timely and proportional response against North Korean sites in the event of another nuclear test or missile launch. For , such a strike might include using force to target a North Korean missile site or a military base. The hope would be that such a strike would “” and “illustrate the high price the regime could pay for its behavior” without “igniting an all-out-war on the Korean Peninsula.”

In the authors’ view, “[t]here is a strong argument such a strike would be lawful” either as collective self-defense of Japan or as individual self-defense by the US.

I disagree.

The fundamental problem is that “another nuclear test or missile launch” would not qualify as an armed attack sufficient to give rise to the right of either collective or individual self-defense. The authors make no attempt to explain how another nuclear test would be an armed attack — which is not surprising, given that previous tests have all been on North Korean territory (with terrible consequences for North Koreans). And here is their argument concerning another conventional missile launch:

More difficult is determining whether North Korea’s current behavior justifies the limited military strike proposed in the “bloody nose” strategy. Consider, for example, another North Korean test in which it launches an unarmed missile into Japanese sovereign territory. Arguably, a test rocket without armed explosives is merely a delivery system, not a “weapon.” On the other hand, such a rocket is capable of causing “” and thus could be construed as a “weapon.” According to the and the , a “[b]ombardment by the armed forces of a State against the territory of another State, or the use of any weapons by a State against the territory of another State” is an act of aggression. Such a North Korean missile launch would seem to fall within this definition and could  as an armed attack.

On the contrary, such an interpretation would not be reasonable — even if we accept the idea that an unarmed missile is a weapon. Tom Ruys has carefully analysed state practice concerning when a de minimis attack qualifies as an armed attack for purposes of self-defense. Here is his conclusion (p. 155; emphasis mine):

In the end, customary practice suggests that, subject to the necessity and proportionality criteria, even small-scale bombings, artillery, naval or aerial attacks qualify as ‘armed attacks’ activating Article 51 UN Charter, as long as they result in, or are capable of resulting in destruction of property or loss of lives. By contrast, the firing of a single missile into some uninhabited wasteland as a mere display of force, in contravention of Article 2(4) UN Charter, would arguably not reach the gravity threshold.

The attack that the authors imagine — an unarmed missile fired into Japan’s territorial sea — is precisely the kind of attack that is not “capable of resulting in destruction of property or loss of lives.” That attack thus cannot give rise to the right of self-defense. Indeed, even the source that the authors cite, Karl Zemanek’s entry “Armed Attack” in the Max Planck Encyclopedia of International Law, rejects their insistence that an unarmed missile fired into Japan’s territorial sea could “reasonably be interpreted as an armed attack.” Here is what Zemanek says about de minimis attacks (emphasis mine):

In sum, it is submitted that regardless of the dispute over degrees in the use of force, or over the quantifiability of victims and damage, or over harmful intentions, an armed attack even when it consists of a single incident, which leads to a considerable loss of life and extensive destruction of property, is of sufficient gravity to be considered an ‘armed attack’ in the sense of Art. 51 UN Charter.

The authors’ claim that the US would be entitled to act in “collective self-defense” in response to an “armed attack” in the form of an unarmed missile fired into Japan’s territorial waters is also problematic. Here is their argument:

The 1960  of Mutual Cooperation and Security between the United States and Japan states “[e]ach Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes.” This treaty may provide a basis for the United States’ to engage in a limited retaliatory strike. One could argue that, pursuant to the 1986  out of the International Court of Justice (ICJ), the United States would have to obtain Japan’s affirmative consent before engaging in a strike against North Korea in collective self-defense. However, Article 51 certainly does not refer to any such prerequisite, and the ICJ’s conclusion in Nicaragua is . On a more practical note, it is highly unlikely  a collective self-defense strike by the United States.

It is not clear why the authors believe that Japan would not need need to specifically consent to “collective self-defense.” There are two possible interpretations of their argument: (1) the Treaty of Mutual Cooperation automatically provides the US with the consent it needs to “defend” Japan in case of an armed attack; (2) collective self-defense never requires the consent of the attacked state. The authors’ criticism of the Nicaragua judgment implies that they take position (2). As Ruys explains, however, state practice — from Jordan in 1958 to South Vietnam in 1965 to the Soviet invasion of Afghanistan in 1980 — indicates that collective self-defense is lawful only when the state with the right of individual self-defense requests it (pp. 88-89):

This brings us to the third and decisive reason why the conception of collective ‘defence of the other’, endorsed by the ICJ and a majority of legal scholars, holds the upper hand over the ‘defence of the self’ approach: customary practice provides virtually no support either for the requirement that a proximity relationship should exist, or for the idea that collective self-defence may be exercised absent the approval of the actual victim State. On the contrary, practice convincingly shows that a State which is the subject of an attack has a legal right to ask for military assistance.

[snip]

In sum, in each case, what was deemed crucial was whether the actual victim State had a right of individual self-defence, and whether it approved of the actions of the assisting State. Of course, the assisting State will most often have some sort of interest in responding to the victim’s request; States seldom engage in military action out of pure altruism. Yet, practice makes clear that a proximate relationship is not a legal criterion; only the victim State’s approval is.

The stronger argument, then, is that the Treaty of Mutual Cooperation would automatically provide the necessary consent for US to engage in “collective self-defense.” Aurel Sari raised this possibility on Twitter last night. I am not convinced that the Treaty eliminates the need for Japan’s consent to armed force being used on its behalf. In particular, Art. IV provides that “[t]he Parties will consult together… at the request of either Party, whenever the security of Japan or international peace and security in the Far East is threatened,” which seems to contemplate acts of self-defense being undertaken only with the specific agreement of both Japan and the US. But Aurel’s argument must still be taken seriously, and it provides the only coherent basis for the authors’ position on collective self-defense.

(As an aside, I find very unconvincing the author’s casual assertion that “it is highly unlikely  a collective self-defense strike by the United States.” On the contrary, I think Japan would be quite likely to oppose the US responding to a unarmed missile attack by using force — even relatively restrained force — directly against North Korea. A North Korean response would be more likely to target Japan than the US. So Japan would have every incentive not to consent to “collective self-defense” in such a situation.)

Finally, I find very unconvincing the author’s insistence that the US is close to having an individual right of self-defense against North Korea:

Even without another missile targeting Japan, the United States could arguably rely on its own Article 51 individual right of self-defense to justify a “bloody nose” strike. While somewhat controversial, the United States interprets the individual right of self-defense to allow for a preemptive-but-proportional  when the need to do so is . In other words, if the United States determines North Korea’s behavior indicates a forthcoming attack it can act in self-defense before absorbing the first blow.

North Korea’s recent activities help support a preemptive self-defense argument. Despite extensive efforts by the international community, including through , and , North Korea continues to defiantly test powerful nuclear weapons and launch ballistic missiles. Furthermore, it has gone to great lengths to conceal its nuclear testing program by creating underground facilities and intricate . This behavior, coupled with North Korea’s pattern of  and  against the United States and other nations, makes a preemptive use of force seem more and more . As the North Korean threat increases and non-military measures are exhausted, it becomes reasonable to believe that the last opportunity for the United States to act is fast approaching.

There is no question that the US would have the right to act in self-defense to prevent an imminent attack by North Korea — anticipatory self-defense. But the authors seem to adopt an understanding of self-defence’s necessity requirement that goes well beyond the traditional Caroline standard of imminence, according to which the need to act must be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” They specifically argue for preemptive self-defense, a term that the US traditionally uses to describe self-defense against attacks that are not imminent.(The Bush doctrine is an example.) And they invoke the “last opportunity to act” test, which is not necessarily inconsistent with anticipatory self-defense, but can easily be interpreted to allow for preemptive self-defense, as Adil Haque nicely explains here.

If the authors are endorsing a view of self-defense that does not require an imminent attack, their position is clearly wrong. Here is Ruys again (pp. 336-38):

[T]here can be no doubt that even among States adhering to the “counter-restrictionist” view, support for self-defence against non-imminent threats is virtually non-existent. Apart from the fact that the sponsors of Operation “Iraqi Freedom” avoided this justification, it may be observed that many States, such as Germany, Japan, Switzerland, Uganda, Singapore or Liechtenstein, which professed support for anticipatory self-defence after 2002, nonetheless placed great weight on the imminence requirement. Germany, for instance, expressly denounced an erosion of the Charter framework and State practice via the notion of “preventive self-defence.” Likewise, the French politique de defense unequivocally “rejects… the notion of preventive self-defence.”

What is more, even the “traditional” adherents of the counter-restrictionist interpretation of Article 51 generally appear to uphold the imminence requirement. Despite bold statements by its Prime Minister on the need to adapt the UN Charter, Australia’s response to “In Larger Freedom” was rather cautious: it simply “[supported] reaffirmation by the Secretary-General that Article 51 of the Charter adequately covers the inherent right to self-defence against actual and imminent attack.” Israel called for an explicit recognition in the World Summit Outcome that States may use force in self-defence “in the event of both actual and imminent attacks.” As far as the British position is concerned, Attorney- General Lord Goldsmith in 2004 declared before the House of Lords that: “It is… the Government’s view that international law permits the use of force in self-defence against an imminent attack but does not authorize the use of force to mount a pre-emptive strike against a threat that is more remote.”…

[W]e may therefore conclude that the trend in State practice has been broadly similar to that in legal doctrine: support for anticipatory self-defence has increased, but has by and large restricted this concept to imminent threats.

By contrast, if the authors believe that an imminent attack is required but want to define “imminent” to include the “last opportunity to act” test,” they are not necessarily arguing for an unlawful version of self-defense. It depends on how broadly they interpret “last opportunity to act.” An acceptably narrow definition of the test does, however, seem inconsistent with the authors’ insistence that “[a]s the North Korean threat increases and non-military measures are exhausted, it becomes reasonable to believe that the last opportunity for the United States to act is fast approaching.” To begin with, although there is certainly cause for concern, North Korea does not seem particularly close to having the technology necessary to attack the US mainland with a nuclear missile. Moreover — and more importantly — despite its belligerence and bluster, there is little evidence that North Korea actually wants to attack the US, much less intends to do so as soon as possible. North Korea has long had the ability to launch a conventional attack against numerous US installations overseas — and probably now has the ability to reach the US mainland with a conventional missile. Yet no such attack has ever taken place.

Is it possible that, at some point, the US will have the legal right to attack North Korea in self-defense? Absolutely. But that time is not now — even if North Korea fires another unarmed missile into Japanese territorial waters. And there is little reason to believe that the “last opportunity for the United States to act is fast approaching.” Any argument at present for the “bloody nose” strategy, therefore, is both legally unsound and profoundly counterproductive.