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International Courts and Dispute Resolution

Transitional Justice and Judicial Activism Symposium: Comments by Dinah PoKempner

by Dinah PoKempner

[Dinah PoKempner is General Counsel of Human Rights Watch. She is writing in her personal capacity. Views expressed in this essay are not necessarily those of HRW.]

Increasing judicial recognition of a duty to investigate and even to prosecute serious violations of international law is unlikely to narrow the ambit of transitional justice; to the contrary, it adds pressure for more thorough transitional measures by upping the reputational cost of impunity.

Not even two decades have passed since agreement of the Rome Statute of the International Criminal Court, arguably a high water mark in political consensus on accountability for human rights crimes. While that institution has survived what was initially feared to be its strongest political obstacle—the non-participation and even subversion of great powers—it is still having difficulty in gaining acceptance in Africa, a region with the greatest number of both states parties and ICC investigations. The region is also known for weak state institutions where, as Ruti Teitel would acknowledge, supranational judicial intervention (even by invitation) may be most likely and most appropriate. Indeed, watching its moves in carefully navigating a course to find what is politically as well as legally feasible to prosecute is itself an education in the limitations of international law as a bulwark against real-world impunity, even after the moment of international political consensus.

I mention this, because it seems premature to worry, as Teitel does, about a developing judicial consensus on what she terms the “right to accountability” overwhelming the political options for transitional justice. If anything, judicial recognition of state obligations to provide account, investigate and even prosecute the most serious abuses can add a little impetus for broader transition from a regime of abuse towards one of legality.

Teitel elegantly traces a number of components of accountability through international judicial bodies. She grounds the notion of account in the crime of enforced disappearance, where the question of what happened and who did it—that is, the state’s refusal to give account–is quite literally the central wrong. As she points out, the law developed in a way highly sensitive to context, in this case the regional as well as national context of patterns of impunity, failure to investigate, and systemic political corruption that courts noted in imputing duties to the state even where states denied involvement in the crime.

It bears mention that in less obscure contexts—massacres, genocides, ethnic cleansing—the notion of an investigation and formal account has also become established as a primary duty of the state, both through normal domestic law and through transitional mechanisms. Should the state fail in this duty, such an account might be supplied by a foreign or international prosecutor, court or commission if need be. Either way, resort beyond the national courts indicates a failure of the state to assume the burden of the account as well as the conclusions on remediation or retribution that may flow therefrom. What disappearance jurisprudence added was not an entirely sui generis duty of investigation or right to the truth (.pdf), but rather a notable judicial reluctance to step aside (by courts flexibly interpreting doctrines such as standing, exhaustion of remedies, statutes of limitation, etc.) when a state stonewalled on what everyone more or less knew were the likely victims, the likely perpetrators, and the likely wrongs.

Indeed, enforced disappearance, more than many other human rights crimes, is custom-built for legal deniability. It may be that the precedent of courts sidestepping prudential obstacles to read new duties into the law may be more interesting as a model of judicial approach for other elusive or deniable crimes than as the origin point of a duty to investigate. Perhaps a duty of democratic oversight or transparency will one day be read into human rights law when deniability for violations rests on secrecy justified by national security interests; or maybe we will see a duty of accurate and public record-keeping on persons taken into state custody, to avoid liability for conditions that encourage abuse.

The second line of jurisprudence Teitel describes as creating a “right to retributive justice” involve state actions that in the main implicate criminal acts for which there is a clear and pre-existing duty of investigation and potentially prosecution, such as torture, enforced disappearance or a crime against humanity. Although scholars have long asserted a duty of prosecution, it was not seen by all as comprehensive or mandatory until fairly recently. That such a duty is gaining judicial recognition is a natural corollary of the positive duty of states to prevent abuses, by discouraging an environment of impunity.

But the formal legal recognition of a duty to prosecute does not necessarily displace transitional justice measures as Teitel suggests when she adverts to “a restructuring and narrowing of the relevant questions” or to a shift of emphasis from “political and social goals of transition to other more limited aims such as procedural justice for victims and their families.” There is no reason that these processes cannot co-exist, and indeed, they often do.

Indeed, as she acknowledges, supranational legal interventions from regional courts can also take place outside of a transitional context or in lieu of it; Russia and Turkey are not in the midst of transition with respect to their counter-terrorism policies, to the contrary. One might even wonder whether the incorporation of some states to regional human rights mechanisms might in some ways “normalize” these moments of intervention and criticism. But even where they don’t produce systemic change, such interventions do not pass unnoticed and can provide some support for those who press for greater respect of human rights or incorporation of universal standards into domestic law. And sometimes these rulings can impel further alignment with more generally held democratic norms where the political process hit a plateau.

Teitel’s recommendation that regional courts take into consideration whether some deference to transitional justice processes is due, while pragmatic, perhaps misses the point that whatever their function was at their moment of inception, these courts are not serving only transitional ends. The European Court of Human Rights, for example, mostly regulates mature democracies, and undue deference to the transient political circumstances of one state creates normative license for others as well. A regional court may not be able to disturb a self-amnesty law in a given country, but it can discourage that law from having wider recognition as a legitimate act of a sovereign democracy. The repertoire of transitional justice is likely to remain broader than the jurisprudence of human rights courts, which serve a different end, and a different pace.

Transitional Justice and Judicial Activism Symposium: Introduction

by Ruti Teitel

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

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

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

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

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

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

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

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

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

by Jennifer Trahan

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

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

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

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

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

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

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

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

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

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

by Julian Ku

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

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

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

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

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

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

by Julian Ku

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

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

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

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

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

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

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

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

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

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

McAuliffe on the ICC and “Creeping Cosmopolitanism”

by Kevin Jon Heller

As I was researching a new essay on complementarity, I stumbled across a fantastic article in the Chinese Journal of International Law by Paidrag McAuliffe, a Senior Lecturer at the University of Liverpool School of Law. Here is the abstract of the article, which is entitled “From Watchdog to Workhorse: Explaining the Emergence of the ICC’s Burden-sharing Policy as an Example of Creeping Cosmopolitanism”:

Though it was initially presumed that the primary role of the International Criminal Court (ICC) would be a residual one of monitoring and ensuring the fulfilment by the State of its obligations under the Rome Statute, it has over time moved towards a more activist “burden-sharing” role. Here, the Office of the Prosecutor initiates prosecutions of the leaders who bear the most responsibility for the most egregious crimes and encourages national prosecutions for the lower-ranking perpetrators. Since at least 2006, the Prosecutor has committed to a formal policy of inviting and welcoming voluntary referrals as a first step in triggering the jurisdiction of the Court. The judges on the Court have approved these referrals, while the broader academic and activist communities welcomed this more vertical relationship with national jurisdictions and, significantly, have provided the intellectual justifications for it. Burden-sharing, a concept unmentioned at the Rome Conference establishing the ICC, is presented as an unproblematic, natural and organic emanation from the Statute. This article argues that this development was not in fact inevitable or mandated by the Rome Statute. It was chosen, and in justifying this choice, familiar modes of cosmopolitan-constitutionalist treaty interpretation fundamentally premised on the field’s virtue and indispensability have operated to enable a Court established as a residual watchdog to become a workhorse in individual situations by assuming the preponderance of responsibility for combating impunity.

I found myself repeatedly nodding my head in agreement while I read the article, particularly when it discussed how judges, prosecutors, scholars, and activists have relied on ambiguities in treaty interpretation to push a particular activist agenda at the ICC. The article reminds me of the critical ICL scholarship by two of my favourite scholars, Fred Megret and Darryl Robinson — both of whom the article cites quite often.

The article is a must read for anyone interested in the ICC and ICL scholarship more generally. You can find it here.

When Is a “Plain Meaning” Not Plain?

by Kevin Jon Heller

In my post on biological and chemical weapons yesterday, I rejected the idea that Art. 8(2)(b)(xviii) “squarely appl[ies]” (Ralf Trapp) or “plainly applies” (Alex Whiting) to chemical and biological weapons by arguing that the drafters of the Rome Statute intended Art. 8(2)(b)(xviii), the war crime of “[e]mploying asphyxiating, poisonous or other gases,” to have precisely the kind of “special meaning” that Art. 31(4) of the VCLT requires us to take into account when interpreting that provision.

After the post went up, Alex and I had a heated but typically friendly exchange on Twitter concerning “plain meaning” treaty interpretation. Interested readers can start with this tweet. Our debate did not focus on the applicability of Art. 31(4) of the VCLT. Instead, we argued about whether simply reading the text of Art. 8(2)(b)(xviii) makes it plain that it criminalises chemical and biological weapons. Alex thinks it’s evident that it does; not surprisingly, I disagree.

The problem with the debate is both obvious and timeless: if two people disagree about the correct interpretation of a text, how do they determine whose interpretation is correct? Alex rightly rightly pointed out that we should not reject a particular “plain meaning” simply because one person disagrees with it; any such standard would deny the possibility of plain meaning altogether. (Which, to be clear, I’d be happy to do on other grounds, because I follow the neo-pragmatic approach to interpretation associated with Stanley Fish. See, for example, this fantastic essay.)

But if one person’s disagreement cannot render a “plain meaning” not plain, how many people is enough? Five? 10? 100? At some point disagreement over the meaning of a text has to negate the possibility of any particular interpretation being considered “plain.” Alex and I went around and around on this, and he finally advocated what is essentially a procedural solution to the problem: the “plain meaning” of Art. 8(2)(b)(xviii) is whatever the ICC’s judges ultimately say it is.

As a descriptive matter, Alex is absolutely correct. But unless we believe the ICC’s judges are legally infalliable — and I certainly don’t! — we have to accept the possibility that they could be wrong about the “plain meaning” of Art. 8(2)(b)(xviii). So we are right back where we started: trying to determine how much disagreement over the interpretation of a text has to exist before we conclude the text has no plain meaning.

I have no easy answer. But I would still maintain that it strains credulity to believe that the “plain meaning” of Art. 8(2)(b)(xviii) indicates that it criminalises chemical and biological weapons. To see why, we don’t even have to return (as I think we should) to the drafting history of Art. 8. It is sufficient to note that a significant number of states still believe that Art. 8(2)(b)(xviii) does not criminalise chemical or biological weapons. How do we know that? Because 14 states formally proposed amending Art. 8 to criminalise those weapons at the ICC’s Review Conference in 2010: Argentina, Belgium, Bolivia, Burundi, Cambodia, Cyprus, Ireland, Latvia, Luxembourg, Mauritius, Mexico, Romania, Samoa and Slovenia. Here, in relevant part, are the provisions the 14 states wanted to add to Art. 8(2)(b):

xxvii) Using the agents, toxins, weapons, equipment and means of delivery as defined by and in violation of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, London, Moscow and Washington, 10 April 1972.

xxviii) Using chemical weapons or engaging in any military preparations to use chemical weapons as defined by and in violation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Paris, 13 January 1992.

These proposed amendments make no sense if the “plain meaning” of Art. 8(2)(b)(xviii) already criminalises chemical and biological weapons. So how can that interpretation be considered the “plain meaning,” given that at least 11% of the States Parties to the Rome Statute do not understand Art. 8(2)(b)(xviii) in the supposedly plain manner? Surely such disagreement indicates that there is no “plain meaning” of the war crime.

Does that mean the 14 states are right? Of course not. Perhaps Art. 8(2)(b)(xviii) really does criminalise chemical and biological weapons. All I’m saying is that we cannot reach that conclusion by looking to Art. 8(2)(b)(xviii)’s “plain meaning.” The meaning of the war crime is at best ambiguous or obscure.

But that, of course, is a critical realisation. Because it means that we have to look to the drafting history of the Rome Statute to determine the correct interpretation of Art. 8(2)(b)(xviii) even if we accept a plain-meaning approach to treaty interpretation. (Which we should not.) Here is Art. 32 of the VCLT:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) Leaves the meaning ambiguous or obscure.

Even though my understanding of the VCLT accords with Julian Davis Mortenson’s, I am willing to entertain the idea that the meaning of some provisions of the Rome Statute is so plain that we have no practical need to examine their drafting history. Art. 8(2)(b)(xviii), however, is not such a provision. Given the widespread disagreement among states concerning whether the war crime criminalises chemical and biological weapons, the best interpretation of Art. 8(2)(b)(xviii) is that it has no plain meaning.

Can You Be Pro-Free Trade and Anti-Investor State Dispute Settlement?

by Julian Ku

Simon Lester of Worldtradelaw.net and the Cato Institute offered a very interesting pro-free trade argument against the inclusion of investor-state dispute settlement (ISDS) in trade agreements like the TransPacific Partnership or the Transatlantic Trade and Investment Partnership.  I disagree and we discussed and debated the issue today in a lively conversation hosted by Columbia University’s Center for Sustainable Investment.

The Rome Statute Does Not Criminalise Chemical and Biological Weapons

by Kevin Jon Heller

Over the past week, two posts at Just Security have argued that the ICC can prosecute the use of chemical and biological weapons as a war crime, even though they — unlike other types of weapons — are not mentioned in Article 8 of the Rome Statute. The first post was written by Ralf Trapp, who argued as follows:

Furthermore, there are the provisions of the Rome Statute of the International Criminal Court (ICC). Even though it does not use the terminology of the CWC (“chemical weapons”), there is no doubt that the terms “employing poison or poisoned weapons” and “employing asphyxiating, poisonous or other gases, and all analogous liquid, materials or devices” found in the list of war crimes under the statute’s Article 8 would squarely apply to the use of chlorine or mustard gas as a weapon of war. Any such use would consequently come under the jurisdiction of the ICC.

Trapp does not even acknowledge any other interpretation of Article 8. By contrast, the second post, written by Alex Whiting, admits that a different interpretation is possible. But Whiting nevertheless sides with Trapp, citing an earlier post by Dapo Akande at EJIL: Talk!:

The Rome Statute originally included a direct ban on chemical and biological weapons, but it was dropped at the same time as a ban on weapons causing unnecessary suffering was narrowed to apply only to those weapons listed in an annex (which does not exist because the States Parties never adopted one). This narrowing was done to avoid having the broader provision apply to nuclear weapons. The direct chemical and biological weapons prohibition was then dropped, apparently because some negotiators thought that there should be parity in approach to nuclear weapons (possessed by wealthy nations) and chemical and biological weapons (the more likely option for poorer countries). The claim that that the Statute therefore does not cover chemical and biological weapons was reinforced by Belgium’s efforts at the ICC Review Conference in Kampala in 2010 to amend the Statute to include a ban on chemical and biological weapons, indicating that there was an understanding among at least some States Parties that the Statute as written did not already do so.

But Akande persuasively argues (reinforcing what Trapp intuits) that the language in the Statute prohibiting poisonous and asphyxiating gases and analogous liquids, materials, and devices plainly applies on its own terms to most — if not all — chemical and biological weapons. Since the treaty text is clearly written, there is no need to consider the history of its drafting, per the Vienna Convention on the Law of the Treaties. In this case, the difficulty with relying on the negotiation history in the first instance is that it is highly indeterminate: Assessing what 120 countries “intended” when they adopted the Rome Statute is nearly impossible, and therefore the plain language of the treaty should govern when it is clear, as it is here.

I disagree with Trapp and Whiting. I won’t rehash the arguments I made in response to Dapo’s post; interested readers can see our exchange in the EJIL: Talk! comments section. But I do want to flag three critical problems with the argument advanced by Trapp and Whiting: one factual, one theoretical, and one political.

The factual problem is that this is simply not a situation in which the drafting history is “highly indeterminate.” Few drafting disputes are as well known as the dispute over the criminalisation of nuclear weapons, chemical weapons, and biological weapons. And as Whiting’s own account makes clear, we know with absolute certainty that not enough states favoured criminalising the use of chemical and biological weapons — because the proposal to criminalise them failed. The reason why states opposed criminalising their use is irrelevant; I’m quite sure that some may have wanted to reserve the right to use them, while others were happy to criminalise their use but did not want to alienate the nuclear states. All that matters is that it is undisputed states tried and failed to criminalise the use of chemical and biological weapons.

It does not matter, then, whether “[a]ssessing what 120 countries ‘intended’ when they adopted the Rome Statute is nearly impossible.” What matters is whether we know how 120 states understood Art. 8 of the Rome Statute. And we do…

Why China Will Ignore the UNCLOS Tribunal Judgment, and (Probably) Get Away With It

by Julian Ku

U.S. commentary has largely celebrated the UNCLOS Arbitral Tribunal’s award finding it has jurisdiction to consider the merits on many of the Philippines’ South China Sea related claims against China.   Perhaps the most positive note is found in Jill Goldenziel’s essay at the Diplomat entitled, “International Law Is the Real Threat to China in the South China Sea.”

But just by getting this far, the case already has important implications for the use of international courts to manage and resolve international conflicts. International law has become a weapon of the weak. Countries that cannot afford or have no chance of winning military conflicts have increasingly turned to courts to resolve territorial, economic, and human rights claims. Other countries are closely watching the Philippines as they consider similar options for asserting their own rights in the South China Sea and beyond. Vietnam, in particular, is considering filing a similar lawsuit. At the very least, the case may force China to engage in talks with its neighbors to resolve competing claims to the South China Sea. By doing so, China can save face and claim to resolve the disputes on its own terms. If law can bring China to its knees, cases involving the South China Sea will have ripple effects far beyond its shores.

For my own part, I am much more skeptical about the benefits of an arbitral award for the Philippines. As I argued last year, there is little reason to think China will suffer serious reputational consequences for defying the UNCLOS Arbitral Tribunal’s award on jurisdiction or on the merits. Why?

Because other cases involving “weak” nations using international courts against “strong” nations shows that “strong” nations suffer few consequences and rarely change behavior significantly. The most similar case to Philippines v. China is probably the 1986 ICJ judgment in Nicaragua v. United States. That case (also brought by the Philippines’ current lawyer Paul Reichler) resulted in the U.S. withdrawing from the compulsory jurisdiction of the ICJ, not showing up for the merits argument, and ignoring the ICJ’s final judgment on the merits in that case. While the U.S. suffered some negative votes in the General Assembly and had to veto several Security Council resolutions, it is hard to argue that the U.S. “complied” with the ICJ judgment as a result of the reputational costs it suffered by walking away. The U.S. never paid the compensation the ICJ held that it owed, and it stopped mining Nicaraguan harbors only years later.

Russia has also recently demonstrated the ability of a “Strong” state to ignore an international court ruling. After detaining a Dutch-flagged Greenpeace vessel and its crew in 2013, Russia faced a provisional measures proceeding in the International Tribunal for the Law of the Sea. That tribunal ordered Russia to “promptly release” the vessel upon the posting of a bond and to release the crew as well.   Russia did not show up for the argument in court, and simply ignored the ITLOS order as well as a subsequent UNCLOS arbitral award.

Perhaps the Philippines will win some sort of leverage over China down the road by using a favorable award as a bargaining chip with China. But in the short-term, the Philippines has enraged China and has also led China to denounce (for the first time) the UNCLOS arbitral tribunal itself. It would not be impossible to imagine China announcing a withdrawal from UNCLOS (just to avoid the dispute settlement provisions) and simply adhering to UNCLOS as customary international law. That result will not be great for China, but I have a hard time seeing how it helps the Philippines either.

My Talk on the ICC’s Investigation into the Situation in Georgia

by Kevin Jon Heller

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I’m in the middle of a week-long trip to Georgia, where I’m giving nine lectures in five days to the military and university students. (Thanks, Anna Dolidze, Deputy Minister of Defence and friend-of-OJ!) I’m talking about perfidy a couple of times, but most of the lectures — not surprisingly — are about the OTP’s request to open a formal investigation into the situation in Georgia. I’ve greatly enjoyed the lectures I’ve given so far, at Free University Tbilisi and at the Ministry of Defence. The questions have been uniformly intelligent and challenging. Today I’m heading to Gori to give lectures at the National Defence Academy.

In any case, a reader emailed me and asked whether I could send her the notes of my talk and the accompanying PowerPoint slides. I was happy to oblige, and I thought I might upload both to Opinio Juris, in case anyone else would like to see them. The notes are here, and the accompanying PowerPoint slides are here.

Breaking: UNCLOS Tribunal Rules Against China, Unanimously Finds It Has Jurisdiction Over Philippines South China Sea Claims

by Julian Ku

It’s been a rough week for China’s South China Seas policy. In addition to facing a US Freedom of Navigation operation near one of its artificial islands, the arbitration tribunal formed under the United Nations Convention on the Law of the Sea has decided that it has jurisdiction to proceed to the merits on the Philippines’ legal challenge to certain Chinese activities in the South China Sea.

I will blog more about this later, but for now it is worth noting that the tribunal unanimously ruled that it can proceed to the merits on seven out of 15 of the Philippines’ claims, and that it reserves the question of jurisdiction on seven other claims as being so interwoven with the merits that it cannot be resolved without first considering the merits.

I will note that the tribunal reserved the question of jurisdiction over the Philippines’ biggest and most flashy claim: the argument that China’s Nine Dash Line “historic rights” claim is inconsistent with UNCLOS. It held that:

The Philippines’ Submission No. 1 does, however, require the Tribunal to consider the effect of any historic rights claimed by China to maritime entitlements in the South China Sea and the interaction of such rights with the provisions of the Convention. This is a dispute concerning the interpretation and application of the Convention. The Tribunal’s jurisdiction to consider this question, however, would be dependent on the nature of any such historic rights and whether they are covered by the exclusion from jurisdiction over “historic bays or titles” in Article 298. The nature and validity of any historic rights claimed by China is a merits determination. The possible jurisdictional objections with respect to the dispute underlying Submission No. 1 therefore do not possess an exclusively preliminary character. Accordingly, the Tribunal reserves a decision on its jurisdiction with respect to the Philippines’ Submission No. 1 for consideration in conjunction with the merits of the Philippines’ claims.

On the other hand, the Tribunal did find that the question of whether the Scarborough Shoal is a “rock” or an “island” is clearly within the jurisdiction of the Tribunal, irrespective of the merits. It did so because it held that there are no overlapping sovereignty or sea boundary claims that might impact the determination.

Overall, it should never be surprising when an arbitral tribunal finds that it has jurisdiction to hear a case. The Tribunal did throw China a bone by noting that it is still possible that seven of the Philippines’ claims (including the Nine Dash Line challenge) could be dismissed for lack of jurisdiction at the merits stage.

But by reserving the question of jurisdiction, and guaranteeing it will rule on the merits for several other claims, the Tribunal shoves the ball back onto China’s court.  Will China continue to claim it is not bound by the Tribunal for lack of jurisdiction, when the Tribunal has now found it has jurisdiction?  China would more clearly be in violation of UNCLOS now than it was before, because UNCLOS Article 288(4) makes it clear that “[i]n the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.”  My guess is China will pretend that Article 288 doesn’t exist and continue to refuse to participate.  The interesting question is whether China will pay any serious price (in reputational terms) if it does so.