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International Legal Theory and Teaching

The Man Who Would Be King, Daddy’s Little Princess, and their Territorial Claim

by Chris Borgen

There are many dads who have played make-believe with their little girls, perhaps taking the part of kindly king to his daughter’s princess.  Not many people have turned this game into an international legal incident concerning state formation.  But  at least one man has. According to the Washington Post:

Jeremiah Heaton was playing with his daughter in their Abingdon, Va., home last winter when she asked whether she could be a real princess.

Heaton, a father of three who works in the mining industry, didn’t want to make any false promises to Emily, then 6, who was “big on being a princess.” But he still said yes.

“As a parent you sometimes go down paths you never thought you would,” Heaton said.

Within months, Heaton was journeying through the desolate southern stretches of Egypt and into an unclaimed 800-square-mile patch of arid desert. There, on June 16 — Emily’s seventh birthday — he planted a blue flag with four stars and a crown on a rocky hill. The area, a sandy expanse sitting along the Sudanese border, morphed from what locals call Bir Tawil into what Heaton and his family call the “Kingdom of North Sudan.”

There, Heaton is the self-described king and Emily is his princess.

Wow. Heaton just upped the ante for all non-royal dads. The Washington Post also reports:

Heaton says his claim over Bir Tawil is legitimate. He argues that planting the flag — which his children designed — is exactly how several other countries, including what became the United States, were historically claimed. The key difference, Heaton said, is that those historical cases of imperialism were acts of war while his was an act of love.

“I founded the nation in love for my daughter,” Heaton said.

That’s sweet. Really. But let’s turn to the international legal argument… (more…)

Andreas Lowenfeld: A Life Illuminating the Path

by Chris Borgen

lowenfeld

photo: NYU Law School

I am sad to mark the passing of one of the giants of international law, and one of my teachers, Professor Andreas Lowenfeld of NYU Law School. His career was exemplary; Andy operated at the highest levels of practice and academia. In an era when so many scholars and practitioners become hyper-focused on one or two specific areas, Andy not only had incredible depth and precision, but also brought the panoramic view and sweeping vision of an earlier generation of international lawyers. Though perhaps best known for his work in international litigation and arbitration, that description does not capture his career. Consider this excerpt from his New York Times obituary:

Professor Lowenfeld was a towering figure in the fields of public international law, trade and economic law, private international law, and international arbitration. He served on the NYU Law faculty for 47 years, influencing generations of lawyers, and continued to teach International Litigation and Arbitration and International Monetary System among other courses until as recently as Spring 2013. Professor Lowenfeld wrote more than 18 books and authoritative legal treatises and over 115 law review articles and argued before the United States Supreme Court, the Iran-U.S. Claims Tribunal, and the International Court of Justice in the Hague. He made landmark contributions to legal scholarship and practice on issues as varied as extraterritorial jurisdiction, international arbitration, international monetary transactions, trans-border child abduction, international monetary law, investor-state dispute settlement, economic sanctions, enforcement of foreign judgments, aviation law, sovereign immunity, international trade, and civil procedure. His most recent work was a comprehensive treatise on International Economic Law. An avid supporter of the interaction between academics and practitioners, he was frequently an arbitrator in international disputes, public and private. He served as a Reporter on two major projects of the American Law Institute and was a lecturer twice at the Hague Academy, first in 1979 and later in 1994. In the 1994 lectures, he proposed criteria for a global community free of strict legal rules and based instead upon what he termed “reasonableness, not certainty.” One of the hallmarks of his work was his commitment to eliminating what he viewed as an unnecessary divide between public and private international law. In 2007, he was awarded the Manley O. Hudson Medal of the American Society of International Law for his lifelong achievements in the field of international law.

(Read the rest of the obituary here. See also this tribute from 2009.)

And that doesn’t even cover his years in the State Department’s Office of the Legal Adviser during the Kennedy and Johnson Administrations where:

[h]e provided strategic counsel to those presidents during the Cuban Missile Crisis; the Nuclear Test Ban Treaty; the so-called “Chicken War,” in which the U.S. and the European Common Market sparred over poultry tariffs; and the U.S. invasion of the Dominican Republic.

Andy Lowenfeld’s scholarship and his career argued against the “unnecessary divide of public and private international law,” setting the stage (along with Philip Jessup) for the current focus on  complex regulation, transnational law, and dispute resolution. He taught us how public and private international law interact in an interconnected system and, by his example, he showed us how diverse aspects of the international legal profession could be integrated into a coherent career.

I have the great fortune of having been one of Andy’s students. My second year at NYU, I took the general course in international law, which was then team-taught by Andy Lowenfeld and Theodor Meron. Learning international law from “Ted and Andy” as we affectionately referred to them (behind their backs, that is) was everything you would expect from such lawyers: a lively dialogue interweaving law, history, politics, and economics.  I was also Andy’ s student in what was perhaps his signature course, his International Litigation and Arbitration seminar. Here he paired each JD student with a foreign LL.M. to brief and argue an issue in a case, before a bench made up of 3 of our classmates. It was a wonderful bit of experiential learning that has stayed with me and taught me as much about how to be a good teacher as to how to be a good litigator.

In the years since I graduated from law school, Andy Lowenfeld remained generous with his time and wise counsel. I may have become a professor, but he never stopped being my teacher.

But perhaps my favorite memory of Andy was from when I was the Director of Research and Outreach at the ASIL. Andy was a panelist on an international arbitration panel we organized for a Fifth Circuit judicial conference in San Antonio. After the panel, he told me we should go visit the Alamo. So, one hot summer afternoon we toured the Alamo together; I will always remember his enthusiasm in examining the exhibits, especially anything having to do with the deeds, land grants, and international agreements concerning the disposition of territory. He interspersed our conversation about the history of the U.S.-Mexico border with reminiscences from the State Department, career advice, some thoughts on scholarly projects I was considering, and anecdotes from his incredible career. At one point there was a boy, who was maybe seven years old, standing near us and holding a large faux-parchment facsimile of a document, probably recently acquired from the gift shop.  Andy started questioning the boy about the topic of the text on his souvenir, whether or not the reproduction was accurate, and so on. (The boy stared, then shrugged; Andy walked on.) It made me smile watching Andy attempting a Socratic dialogue with a first grader. Even while walking around the Alamo, Andy Lowenfeld was first and foremost an educator and a mentor.

I want to close with a few of Andy’s own words, taken from his magisterial International Economic Law (Oxford, 2d. ed 2008). In the preface, he argues against the skeptics and describes (with perhaps a wink to Louis Henkin) a realistic appreciation of international economic law:

This book is not founded on a claim that all states and all economic enterprises behave at all times according to all the rules, nor that the rules are clear and universally agreed at all levels. But one would not say that there is no criminal law because crimes continue to be committed and are not always punished, or that there is no family law because marriages break up, husbands beat their wives, and children are abused. In fact international conventions, collaborative arrangements, roughly uniform national laws, and customary laws apply to much of the international economy; while there is no global sheriff, and the system of remedies does not reach as far as the system of rules, there are a surprising number of consequences of deviant behavior, and a growing number of fora for resolving disputes among states and between states and private participants in the international economy.

Almost 1,000 pages later, the closing passage puts more than his treatise into perspective: :

It is evident that this book has made more use of narrative and illustration, and less of flat normative statements than might have been expected from a treatise. This approach reflects my belief that the answers cannot be understood without the question, and that abstract statements cannot be comprehended without awareness of the underlying facts and continuing controversies.

This is not to deny the normative character of international economic law. But international economic law—like all law but perhaps more so—is a process. Any attempt to define the law as of a given moment cannot help but distort. The process continues, and the hope is that this book has illuminated the path.

[Emphasis added.]

It has. And so has Andreas Lowenfeld’s life.

 

 

Whither the (U.S.) International Law Academic?

by Duncan Hollis

The state of the international law academy in the United States is undoubtedly strong.  International law and its progeny are no longer marginalized pieces of the law school curriculum as they were for much of the 20th century.  U.S. Law Schools regularly offer international law, with a fair number now doing so in the first year (whether as a required course or an elective).  Nor is the subject limited to a one-off class; schools often try to cover the more fragmented landscape with multiple offerings, from human rights to trade, from arbitration to international environmental law.  Given this proliferation of courses, it’s not surprising to see a similar growth in the number and prominence of international law academics (there is, though, a chicken and egg question here as to which came first).  Today, many schools have moved beyond the requisite “one” international law professor to incorporate faculty with a broad range of international and comparative research interests and experiences.  By way of example, here, at Temple, depending on how you count, we have 11-13 international law faculty.

All that may come as cold comfort, however, to those looking to become international law professors at a U.S. law school in the coming years.  It’s no secret that the U.S. legal education market is in a rather dramatic contraction right now.  As applications tumble, schools are cutting the size of their entering classes, and in some cases their existing faculty.  Last week, a great post by Sarah Lawsky (UC-Irvine) provided a wealth of comparative data on the impacts the market shifts are having on tenure-track hiring for U.S. law schools.  The picture is not a terribly pretty one – from a high of 167 junior faculty hired in 2008 to 73 this year.  I don’t know exactly how many of these 73 hires were in international law, but I’d guess not many.  As schools re-trench, many will focus on hiring in domestic areas because that’s where the perceived jobs are for students (the supply for potential international lawyers having long outstripped the demand, at least for those with a U.S. J.D.).  I’d welcome data that upsets my expectations, but, for now, I’m betting that international law teaching jobs (which were always pretty competitive) are now going to be very hard to get.

This situation leads me to ask three questions.  For starters, is there anything aspiring international law academics can do to actually increase their chances of landing a job in the field? For example, I was asked by a PhD candidate at King’s College London a few weeks ago whether having a PhD in international law would be valued by U.S. law schools given how some law schools have been actively seeking to hire law professors who have PhDs.  My answer, I’m afraid, was not terribly encouraging.  A PhD without a J.D. will raise hackles on many faculties who want law professors to be lawyers.  And where a candidate has both a PhD and a J.D., the pedigree of both degrees will matter more than the presence of the degrees themselves.  Moreover, I’d hazard to guess that other factors may be more important to hiring committees, namely prior work experience in international law (which I think still matters), publications with an emphasis on the “s”, and having had a prior fellowship.  Indeed, according to Lawsky, 84% of the 2014 hires came from a fellowship program (in contrast, 19 candidates had PhDs and none of these were in international law).  And, of course, networking and ‘who knows you’ may actually be the most important aspects of a candidacy in a market that’s become so small.

Given the harsh hiring reality, my second question is what does the future hold for international law teaching, at least in the United States?  Will prospective candidates simply keep their day jobs and avoid testing the market altogether? Will folks take a “wait and see” attitude, hoping for a rebound in interest and hiring in 3-5 years?  Or, will candidates go abroad to try and teach? My sense is that the market in Europe for international law teaching has not suffered the same downturn currently plaguing the United States, and thus there may be more opportunities there. Similarly, I know from a number of post-docs who I’ve worked with that China, Singapore and other areas in the Far East are paying more (not less) attention to international law as well. I’d be interested to hear from more knowledgeable readers what the state of the European and Asian markets are for international law academics (and whether there are other teaching markets potential candidates should consider).

Third, and finally, I wonder if it’s a good or bad thing to have fewer new international law professors entering the profession?  I’m inclined to look at it negatively on the assumption that international law work will continue to rise, not just as a stand-alone profession for lawyers, but as a component of the work all lawyers do in an increasingly globalized world.  As such, there should be sufficient faculty to introduce students to this area and the legal work it involves. Others, however, I suspect might suggest the pendulum has swung too far and that U.S. law schools are devoting too much time and energy to international law in both curricular and hiring contexts, saying that the on-going re-adjustment is therefore a good outcome.  Still others might argue that the issue is idiosyncratic; as law schools start to move away from uniform aspirations, a case could be made that certain law schools should become more focused on international law by virtue of their history, geography, or market placement at the same time as other law schools’ circumstances make the case for devoting less attention to international law. 

What do readers think?  Is there any hope for someone trying to get a U.S. law teaching job in international law in 2014-15?  Are there alternative places candidates should look if, in fact, U.S. law schools are hanging out ‘no vacancy’ signs in international law?  And, how worried should we be about this situation, whether in the short, medium, or long-term?

[UPDATE:  With a hat tip to Peter Spiro, it seems Sarah Lawsky did track hiring candidates by subject matter, so we can actually see how many of this year's lucky hires expressed an interest in international law.  By my count it looks like there are 2 candidates who identified international law as their primary area of interest and one who did so for international trade.  Three other candidates identified international as a third or fourth area of interest.]

The End of Treaties? The End of History?

by Duncan Hollis

AJIL Unbound, the new on-line companion to the American Journal of International Law, has begun to publish short essays this week for its on-line Agora, The End of Treaties? (see the original call for papers here). So far, they have posts up by Tim Meyer (‘Collective Decision-making in International Governance‘) — and Joel Trachtman (‘Reports of the Death of Treaty Are Premature, but Customary International Law May Have Outlived Its Usefulness‘).  Additional posts will be rolled out over the course of the week here.

As for me, I regard this ‘End of Treaties?’ idea as analogous to Francis Fukuyama’s famous End of History thesis.  Like Fukuyama’s piece, I think the idea here is more an argument about the future of treaties as opposed to either an historical or empirical claim that treaties no longer matter much to international law.  Just as it’s hard to argue that history ended with the Cold War, it’s hard to make the case that we’re now witnessing the end of treaties.  On the contrary, there are more treaties in force today than ever before in human history. The United States has more than 10,000 treaties in force and the UN Treaty Office has registered more than 64,000 treaties (this notwithstanding widespread noncompliance by States with their obligation to register treaty commitments).  The breadth and depth of these treaty commitments is equally striking — one is hard pressed to find an international law issue today where there is not some treaty that speaks, directly or indirectly, to the question.  

Perhaps the “End of Treaties” idea should emphasize the decline in treaty-making as opposed to treaties themselves?  Again though, I’m not sure there’s evidence to support the claim.  True, the number of major multilateral treaty negotiations has fallen off in recent years (at least when compared to the late- and immediate- post Cold War periods) while other negotiations appear stalled. But it’s not clear to me that we’re heading to some definitive end-point of obsolescence rather than witnessing an oscillation over time in terms of when and how treaty-making gets done. Nor am I persuaded by the Senate’s recent recalcitrance on treaty-making.  For starters, it’s actually a pretty small piece of U.S. treaty-making; I believe Senate advice and consent treaties in recent decades constitute only about 7% of the international agreements concluded by the United States. And, it’s not like the Senate has refused to give advice and consent entirely; 2013 saw 4 treaties get through.  This is not to say that the Senate process is working well right now — it’s clear not — but rather to suggest it may not yet be time to write that process off completely.

Finally, I do not think one has to find that treaties as a form of international commitment are necessarily weakened by the emergence in recent years of all these new forms of what Tim calls ‘collective decision-making’.  I don’t accept the idea that we’re in a zero-sum game where every time we use a political commitment or code of conduct, there’s one less treaty going forward.  Instead, I wonder if the proverbial pie may be expanding with the expansion in forms of international cooperation; the future (or indeed, even the present) may bear witness to more treaties AND more political commitments, international institutional norm-making, soft law or what have you.  Thus, Tim and I may part ways a bit here as a descriptive matter since he’s inclined to think there’s been some decline in treaty usage.  I’d concede though that there’s research that we could do to settle the trade-off questions.

In the end, I may not be in agreement with the Agora’s theme, but I applaud its attention to the treaty topic.  For me, treaties deserve more attention, not because they are in some form of decline, but rather because of how critical they have become to the functioning of the modern international legal order.  So, I am looking forward to thinking more about Meyer and Trachtman’s posts and reading the remaining contributions later this week.  I trust it’s the start of a great conversation.

NETmundial, Borders in Cyberspace, and a Duty to Hack

by Duncan Hollis

Last week’s NETmundial conference serves as a reminder of just how much the nature of cyberspace remains (at least theoretically) undetermined.  We still can’t agree on what kind of resource cyberspace “is”:  Is it a global public good as Sir Tim Berners Lee proclaimed (i.e., a res communis) or just a collection of technology subject to sovereignty regulation like so many other resources?  This theoretical divide may help explain the continuing back and forth between multi-stakeholder governance (which includes, but does not privilege, a role for States) versus the multilateral governance project (which most certainly does).  NETmundial may have been a net plus for multi-stakeholder proponents, but I’m much less sanguine that it represents an end to claims that cyberspace can — and should — be regulated primarily by government controls over internet resources (for more on the details of NETmundial and its final statement see Milton Mueller’s take-away here).

My skepticism about how international law will draw borders for cyberspace governance leads me to think about other roles borders can play in cyberspace — that is, using international law to draw lines separating acceptable from unacceptable behavior, permitted conduct from required conduct, etc.  I’ve drafted a new chapter that, in the context of cyber war, examines both the ways we draw law from borders and borders from law in cyberspace.  I critique the status quo on both theoretical and functional grounds, concluding that we should seek to start a new process not just for constructing governance regimes, but normative ones as well.  Consistent with the book’s central focus on cyber war, I proffer a case-study for such an approach with respect to armed conflicts, arguing international humanitarian law should adopt a Duty to Hack.  My idea is that, even though it does so only occasionally now, international law should regularly require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives.  You can download a copy of the paper here on SSRN.

For those looking for more details, here’s the abstract:

Warfare and boundaries have a symbiotic relationship. Whether as its cause or effect, States historically used war to delineate the borders that divided them. Laws and borders have a similar relationship. Sometimes laws are the product of borders as when national boundaries delineate the reach of States’ authorities. But borders may also be the product of law; laws regularly draw lines between permitted and prohibited conduct or bound off required acts from permissible ones. Both logics are on display in debates over international law in cyberspace. Some characterize cyberspace as a unique, self-governing ‘space’ that requires its own borders and the drawing of tailor-made rules therein. For others, cyberspace is merely a technological medium that States can govern via traditional territorial borders with rules drawn ‘by analogy’ from pre-existing legal regimes.

This chapter critiques current formulations drawing law from boundaries and boundaries from law in cyberspace with respect to (a) its governance; (b) the use of force; and (c) international humanitarian law (IHL). In each area, I identify theoretical problems that exist in the absence of any uniform theory for why cyberspace needs boundaries. At the same time, I elaborate functional problems with existing boundary claims – particularly by analogy – in terms of their (i) accuracy, (ii) effectiveness and (iii) completeness. These prevailing difficulties on whether, where, and why borders are needed in cyberspace suggests the time is ripe for re-appraising the landscape.

This chapter seeks to launch such a re-thinking project by proposing a new rule of IHL – a Duty to Hack. The Duty to Hack would require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives. Thus, if a State can achieve the same military objective by bombing a factory or using a cyber-operation to take it off-line temporarily, the Duty to Hack requires that State to pursue the latter course. Although novel, I submit the Duty to Hack more accurately and effectively accounts for IHL’s fundamental principles and cyberspace’s unique attributes than existing efforts to foist legal boundaries upon State cyber-operations by analogy. Moreover, adopting the Duty to Hack could constitute a necessary first step to resolving the larger theoretical and functional challenges currently associated with law’s boundaries in cyberspace.

 

Engaging the Writings of Martti Koskenniemi

by Duncan Hollis

MK2r_hollis (2)

Last Spring, Temple Law School was pleased to host a two day workshop on the scholarship of one of international law’s true giants – Martti Koskenniemi (simply put, I’m a big fan). Organized by my colleague, Jeff Dunoff, it was a great event with a wide-ranging conversation launching off Martti’s works in international legal theory, international legal history, fragmentation, interdisciplinary scholarship, ethics and the future of international law.  

Given how great the workshop was, I could not be more pleased to note that the accompanying papers have now been compiled and published in a single volume of the Temple International and Comparative Law Journal (vol. 27, no. 2). The full table of contents for the Symposium Issue can be found here

The papers include Jeff Dunoff’s framing introduction, a fascinating paper by Martti on the historiography of international law, and a slew of papers by renowned scholars, including Kim Scheppele, Tomer Broude, Sean Murphy, Mark Pollack, Rob Howse and Ruti Teitel, Samuel Moyn, Jan Klabbers, Andrew Lang and Susan Marks, Frédéric Mégret, and Ralf Michaels.  These papers address a number of themes that run through Koskenniemi’s work, including international law and empire; the fragmentation of international law; interdisciplinary approaches to international law; reading – and misreading – the tradition; and the international lawyer as ethical agent.  Both individually and collectively, the papers represent a significant effort to engage, explore, and extend the ideas found in Koskenniemi’s writings.

The special symposium issue is the first of what will be a tradition of yearly Symposia that will be organized by Temple faculty and published in the Journal.  As such, the Symposia marks a new form of collaboration between Temple faculty and students, and represent an experiment in academic publishing designed to provide students the experience of editing papers on cutting-edge research, and at the same time injecting faculty expertise into the selection and substantive editing of papers.

From Intervention to Recognition: Russia, Crimea, and Arguments over Recognizing Secessionist Entities

by Chris Borgen

In a matter of days, we have gone from talking about the illegality of Russia’s military intervention, to issues of the Crimean referendum, to Russia’s recognition of Crimea as a new state. While these events have moved quite rapidly, they are not really surprising: arguments over attempted secessions often shift from the question of the legality of the secession itself (about which, as discussed in a previous post, international law is largely silent; although it is generally understood that secession is not a right), to the question of the legality of the recognition of the secession. That is a subtly different question.

By recognizing Crimea, Russia is attempting to shift the discussion off of the issue of military intervention and also, by its recognition, “create facts on the ground” that will at least help Russia;s own negotiating position, if not lay the groundwork for Russia annexing Crimea (by having a Crimean “sovereign state” ask to join Russia). To assess how Russia is doing this, this post will consider the law of recognition and the following post will consider how Russia has used arguments about recognition in relation to Kosovo and South Ossetia in comparison to what it is doing today regarding Crimea.

For this post, the underlying question is whether Russia’s recognition of Crimea was possibly an illegal act.

First of all, what is “recognition?” There are actually different types of recognition: recognition of statehood, recognition of a government, and recognition of a belligerency, recognition of territorial change. For the moment, we are talking about whether Crimea can and should be recognized as a state. In the days to come, we may be talking about issues of recognizing territorial change, if Russia attempts to annex Crimea.

States tend to view the decision to recognize or not recognize an entity as a state as a political decision, albeit one that exists within an international legal framework. That legal framework is in part the rules of statehood. The standard view in international law is that a state must have (a) a permanent population; (b) a defined territory; (c) a government; and (d) the capacity to enter relations with other states.

While entities that claim statehood often try to do a quick “check the box” summary of these criteria and claim they have all the requirements of statehood, the actual assessment is meant to be more rigorous than a soundbite. For Crimea, the problems include that its territory is completely contested—this isn’t an issue of where the border between Crimea and Ukraine should be, this is a dispute over the whole of the territory of Crimea. Moreover, whether Crimea has a functional government or the capacity to enter into international relations are both very much in doubt: Crimea as a supposedly independent entity would not exist but for Russian military intervention. The control of Crimean territory seems to be more under the command of the Russian President than the Crimean authorities. If you don’t believe me, ask yourself what would happen if the Crimean “president” said he wanted all roads to Ukraine reopened and the Russian barriers taken down. Would his command be decisive? Or President Putin’s?

These criteria are meant to reflect the nuts and bolts of sovereignty: an ability to stand on your own feet, make decisions for yourself, and undertake international relations. Crimea seems less like a sovereign than a hothouse flower: alive due to extraordinary intervention, surviving due to conditions carefully controlled by others, and with little real say in its destiny.

What does the law of recognition have to say about such a case, when it is doubtful that Crimea even meets the basic requirements of statehood? Can Russia just recognize it anyway?…         (Continue Reading)

Can Crimea Secede by Referendum?

by Chris Borgen

As Julian mentioned, the Crimean parliament is attempting to achieve the secession of Crimea through the use of a parliamentary vote and a referendum. More legal rhetoric in the midst of political crisis. Back in 2007 and 2008, Russia, the U.S. and the EU used quasi-legal arguments to try to explain why one could support the independence of Kosovo, but not South Ossetia and Abkhazia, or vice versa. It looks like a new iteration of this debate is starting. According to CNN:

lawmakers in Crimea voted in favor of leaving the country for Russia and putting it to a regional vote in 10 days.

It’s an act that drew widespread condemnation, with Ukrainian interim Prime Minister Arseniy Yatsenyuk calling the effort to hold such a referendum “an illegitimate decision.”

“Crimea was, is and will be an integral part of Ukraine,” he said.

The legal issue here is really one of Ukrainian Constitutional law more than of international law, because, as it is generally understood, there is no right to secede under international law. Under international law, a secession is neither a right nor necessarily illegal. It is treated as a fact: a secession either was successful, it was not, or it is still being contested.

There is, however, a right to self-determination, which is understood to be, for communities that are not colonies and are within existing states, meaningful political participation and the pursuit of economic, social and cultural development under the auspices of that existing state, in this case Ukraine.  This conception of internal self-determination makes self-determination closely related to the respect of minority rights and it does not include a right to dismember an existing state. Furthermore, modern views of self-determination also recognize the “federalist” option of allowing a certain level of cultural or political autonomy as a means to satisfy the norm of self-determination. Crimea is already an autonomous republic within Ukraine; more on that in a minute.

Nor does the International Court of Justice’s Advisory Opinion on the legality of Kosovo’s declaration of independence under international law recognize an international right of secession. It side-stepped the question of whether there is a right to secede under international law and framed the legal issue as one of domestic law. It was an advisory opinion that gave very little advice.

If the recent ICJ opinion does not provide much guidance, the tradition of state practice over the longer term does. The international community has not given much legal weight to referenda such as these. Back in the interwar period the Aaland Islands attempted to use a referendum to secede from Finland. In that case, an international commission of jurists brought in to assess the situation for the League of Nations found that there is no right of national groups to separate by the simple expression of a wish. And, particularly relevant today, the ability to choose secession by plebiscite must be granted by the state itself, that is, Ukraine. Otherwise, such a formulation would infringe upon the sovereign right of states. (See the Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question, League of Nations Off. J., Spec. Supp, No. 3, at 5-10 (1920)).

We have seen more recent examples of referenda, such as when Transnistria tried to use a plebiscite to claim independence from Moldova and possible unification with Russia. It received no support from the international community for that claim. (This tactical use of referenda seems to be used time and again by secessionist groups supported by Russia.)

It is important to keep in mind that the whole population of Ukraine has a right of self-determination, as well, and that includes the right not to have their country be torn asunder either by a local referendum and/or external military intervention.

The only place that could confer a right to Crimea to leave by referendum is the Ukrainian Constitution. As far as I can see, there is nothing there conferring the power to secede by referendum. Title X of the Ukrainian Constitution (revised link) concerns the Autonomous Republic of Crimea; there is no mention of secession by act of regional parliament or by local referendum.

Even the Constitution of the Autonomous Republic of Crimea defers to the Ukrainian Constitution. Article 1 of the Crimean Constitution states:

The Autonomous Republic of Crimea shall be an integral part of Ukraine and it shall solve, within the powers conferred upon it by the Constitution of Ukraine, any and all matters coming within its terms of reference.

The Autonomous Republic of Crimea shall also exercise any and all powers as may be delegated to it by Ukrainian laws pursuant to the Constitution of Ukraine.

By the way, as I understand it (and, again, I invite any readers with particular knowledge in this area to comment), the term “autonomous republic” had a specific meaning in the old Soviet constitutional law.  Under the Soviet constitution, there were “union republics” and “autonomous republics.” Union republics had the highest form of sovereignty within the USSR. When the USSR dissolved, the Union republics such as Russia, Moldova, Georgia, Azerbaijan and Ukraine became new sovereign states. The autonomous republics did not have that level of sovereignty; they were subsidiary entities.

I note that Russia has within it its own autonomous regions and republics. Yet, I see nothing indicating that they believe those entities can voluntarily secede from Russia.

Words like “self-determination” are rhetorically persuasive when kept vague but they also have actual legal meaning. One needs to be careful about setting up unreasonable expectations by claiming certain results (such as secession) as a matter of right, when no such right exists.

Such use of legal rhetoric does not help resolve conflicts; it only makes some people more intransigent and the conflict more intractable.

The Crimea, Compliance, and the Constraint of International Law

by Chris Borgen

[I ended my previous post stating that I would next consider the options available to Russia, Ukraine, the EU, and the U.S. But then this conversation started… I’ll come back to the “next steps” question in a following post.]

Julian, Eric Posner, and others look to Russia’s intervention in Ukraine and its takeover of Crimea and see the limits of international law.  But, even in this case, international law and legal rhetoric play a broader, and perhaps more subtle, role in foreign policy than being a brick wall blocking invading armies. (And nowadays brick walls don’t work too well, either.)

Yes, there are the ongoing difficulties of enforcement in a pluralist international community (and, as Peter notes, there are also significant enforcement and compliance problems in domestic societies). But international law and legal discourse also frame expectations and viable policy options in such a way that can have greater long-term constraints on state practice than may be appreciated by international legal skeptics. However, even for this constraint to work, there still needs to be political will to enforce legal rules. And here I think we are all in agreement.

As I mentioned in my previous post, and in various other posts, Russia (and states, in general) cloaks its actions in “law talk” to foster a reputations of being a lawful actor, even-or perhaps especially-when it is not. (Andrew Guzman has written extensively on the role of reputation as a prod towards compliance to international rules. See Andrew T. Guzman, ‘Reputation and International Law,’ 34 Ga J Intl & Comp L 379 (2006).)  How states and other actors use language—what are the bounds of “self-defense,” when may a state legally intervene, what is “self-determination,” and so on—plays an essential role in defining expectations of how states and others will act.  How they use these terms inform other actors as to which arguments may or may not be made legitimately.

This is especially powerful in international law. Regardless as to whether Russia (or any other state) uses legal rhetoric, but especially when it does, it becomes bound-up by the expectation of legal compliance in general.  Invoke the law, get bound by the law.

Yet, just as the lack of a single sovereign means that enforcement is difficult, the pluralist nature of international law means that in most cases there is no final interpreter of what law is. Moreso than the ICJ, the most important interpreters of international law are the states themselves. Their interpretations are in part based on their short-term interests, but also on their long term concerns. These interpretations, in turn, affect international relations. Politics affects international law, which then affects politics, and so on.

International law has thus become a consensual vocabulary and grammar for how states talk about international relations. In short, how we talk about terms like “self-defense” can affect legal substance of what “self-defense” is. Legal rhetoric can frame policy options.

While Eric and Julian focused on the inability of international law to stop Russia from sending troops into Crimea, it is important to keep in mind that the use of force issue is embedded in a much bigger dialogue about the future of Ukraine… (Continue Reading)

2014 ASIL Certificates of Merit Announced

by Duncan Hollis

I had the great pleasure the last several months to serve on ASIL’s Book Awards Committee (along with Jutta Brunnée, Jean d’Aspremont, Saira Mohamed, and a very well organized chair in Jacob Cogan).  I’m pleased to announce that the Society’s Executive Council has selected three winners for 2014 based on our nominations.  The winners (plus the Committee’s accompanying citation) are as follows:

Certificate of Merit for a Preeminent Contribution to Creative Scholarship:  Ryan Goodman and Derek Jinks, Socializing States: Promoting Human Rights through International Law (Oxford University Press 2013).

In Socializing States: Promoting Human Rights Through International Law, Ryan Goodman and Derek Jinks offer a groundbreaking theory of acculturation that illuminates how social processes can promote human rights and, more generally, can influence norms. “Acculturation” refers to “the general process by which actors adopt the beliefs and behavioral patterns of the surrounding culture.” The authors distinguish acculturation from two other mechanisms of social influence: “material inducement,” or the offering of rewards for conformity or punishments for nonconformity with a state’s or institution’s demands, and “persuasion,” whereby actors internalize new norms through a process of social learning and “redefine their interests and identities accordingly.” Goodman and Jinks offer a sophisticated account that both defends the relevance of acculturation and acknowledges its weaknesses in some areas. The theoretical complexity and methodological rigor of Socializing States make this a book that should be studied by any scholar interested in promotion of human rights, the spread of global norms, regime design, or compliance. It has already changed scholarship in these areas and will certainly continue to influence the field in the years to come.

Certificate of Merit for High Technical Craftsmanship and Utility to Practicing Lawyers and Scholars:  Robert Kolb, The International Court of Justice (Hart Publishing 2013)

Robert Kolb’s International Court of Justice provides a magisterial, lucid study of its subject. The breadth and depth of the treatment are impressive: Kolb takes the reader from the history of the Court, to its role in international society, to the more technical questions concerning its composition, powers and procedures, to the development of its jurisprudence, and to its future. The finely grained discussion provides much more than a mere survey of the Court’s constitutive instruments and decisions. It engages the Court as an institution and asks how it actually operates, and secures efficacy and authority in doing so. The book’s careful and detailed coverage of the Court’s legal framework and operation will benefit practitioners and scholars alike. There is no doubt that Kolb’s volume immediately takes a place among the authoritative references on the Court.

Certificate of Merit in a Specialized Area of International Law:  Bardo Fassbender and Anne Peters eds., The Oxford Handbook of the History of International Law (Oxford University Press 2012).

The Oxford Handbook of the History of International Law innovatively and comprehensively provides a timely and ambitious global history of international law from the sixteenth century to the mid-twentieth century. Under the skilled editorship of Bardo Fassbender and Anne Peters, the contributors, experts who themselves come from all parts of the world, present a history that imagines international law as the product of different regions, cultures, actors, and eras. Setting a new agenda for the field, the Handboowill be the indispensable starting point for students and researchers exploring the history of international law.

The awards will get presented at this year’s ASIL Gala Dinner.  I’m looking forward to seeing the authors there and having a chance to congratulate them personally on their achievements.

AJIL Symposium: Reply to Comments on “The Travaux of the Travaux”

by Julian Davis Mortenson

[Julian Davis Mortenson is Assistant Professor of Law at Michigan Law.]

I am most grateful for the thoughtful comments offered by Bart, Richard, and Ulf. Their observations are well-informed, generous, and extremely useful in advancing the conversation about treaty interpretation. So first and foremost, sincerest thanks to each of them.

In my response, I hope (1) to clarify the question that seems principally at issue in the discussion so far, and (2) to suggest how the historical evidence helps answer that question. As Ulf rightly points out, the article’s aim is not to march through a unified field theory of treaty interpretation in the exhaustive fashion of a single subject treatise. It is, rather, to debunk a theoretically central misunderstanding about the interpretive role of travaux under the VCLT as a historical document.

The article is thus fundamentally a historical inquiry. But it also has obvious doctrinal implications. While those implications are not the article’s central concern, I will briefly expand their logic as outlined on page 5 of the draft posted on SSRN. I take some time to spell this out because—with the exception of Richard’s kind and detailed approbation of the historical analysis—the commentaries in this symposium understandably engage less with the particulars of the history than with its doctrinal implications for contemporary interpretive practice.

So here is a sketch of the case for those implications:

  • First:  Every mainstream understanding of treaty interpretation contemplates the use of travaux to resolve ambiguity that remains after the methods described in Article 31 are applied. We argue about the use of travaux in other circumstances. But no one seriously contests that they are not just available but potentially decisive in the face of ambiguity. (This is why any perceived doctrinal circularity is illusory. Since all parties to the debate are in agreement on at least this point, for doctrinal and argumentative purposes we can treat the relevance of drafting history in cases of ambiguity as an axiom requiring no proof.)
  • Second:  The complex, multilayered, and rather-quirkily-drafted provisions of Article 31 and 32 are a textbook example of such ambiguity, both in their individual meanings at the subsection level and in their overall structural interrelationship. One might reasonably rely (for example) on the structural separation of Articles 31 and 32 to conclude that they instantiate an interpretive hierarchy that disfavors travaux. But one might also reasonably rely (for example) on the existence of the “special meaning” and “confirm[ation]” provisions to conclude that they do not. This ambiguity is stubborn, and no amount of deductive gymnastics can make it disappear.
  • Third:  Because the treatment of travaux under Articles 31 and 32 is ambiguous, every mainstream theory of treaty interpretation must concede a potentially decisive role for the VCLT’s drafting history in resolving that ambiguity. Putting it as one might in a legal brief:  assuming arguendo with the most conservative commentators that resort to travaux is available only in the case of ambiguity, that condition is easily satisfied here.
  • Fourth:  Careful review of the VCLT travaux—and it is on this point that the article focuses—demonstrates that Articles 31 and 32 were understood to reject a hierarchical or mechanistic view of interpretation. The holistic view of interpretation adopted by the drafters extended in particular to the use of travaux, which were viewed as automatically incorporated among and conceptually equivalent to the many other (potentially contradictory) indicators of legal meaning enumerated in the VCLT.

With the exception of the last bullet point, these statements are obviously asserted rather than demonstrated. But if each of them holds up, then as a matter of modern legal meaning the VCLT instantiates neither an interpretive hierarchy generally nor a hostility (suspicion, inhospitality, etc.) toward drafting history specifically. The Vienna settlement erected neither barriers, nor thresholds, nor negative presumptions regarding the use of travaux. Instead, it incorporated drafting history as a central and indeed crucial tool for identifying correct legal meaning.

Bart puts his finger right on the most important open question about this bottom line doctrinal conclusion. Given the conceded prevalence of learned professions that such a hierarchy does exist, it’s not out of bounds to argue that subsequent practice under the VCLT conflicts with its original meaning. (Note that, as explored in a shorter paper available here, the VCLT does not tell us how to resolve such a conflict. But bracket that for now.)

Partly because of the stark contradiction that Ulf observes between actual interpretive practice and professions of interpretive principle, however, it is my strong instinct that no such practice has in fact arisen among states parties to the VCLT. But the burden here will be on anyone seeking to dislodge the Vienna settlement. They will have to show, in the precise terms of Article 31, that contrary “subsequent practice in the application of the treaty . . . establishes the agreement of the parties regarding its interpretation.” If you can’t make that showing, then it’s hard to avoid the following doctrinal conclusion:  Drafting history is generally and automatically available as a source of meaning in every single case.  And that’s true even if—as Richard so nicely shows with the meaning of “poison” under the Rome Statute—the particular travaux of a particular treaty might not in fact illuminate a particular question facing a particular interpreter at any particular moment.

AJIL Symposium: Szewczyk Comment on “The Travaux of the Travaux”

by Bart Szewczyk

[Dr. Bart Szewczyk is an Associate in Law at Columbia Law]

This excellent article provides an invaluable contribution to our knowledge of the original understanding of Articles 31 and 32 of the Vienna Convention of the Law of the Treaties.  Its careful attention to the factual details, articulated in an elegant narrative, provides a vivid picture of the debates and decisions in Vienna.  And its comprehensive analysis of the historical record corrects any modern misperceptions as to what the drafters of the VCLT expected as the rules applicable to treaty interpretation.  The follow-on question, as the article notes, is “whether a regular and uncontested contrary practice has arisen—not just as a matter of what interpreters say, but of what they do—sufficient to undercut that original understanding.” (at 785).

Indeed, alongside the VCLT, there may exist several conventions (in the commonwealth, rather than international, sense of the term) governing interpretation for particular treaties, courts, or jurisdictions.  Such contemporary customs or practice may be as important in interpreting treaties as the rules of the VCLT.  For instance, judgments of the International Court of Justice are formally binding only between the parties to a particular case.  The ordinary meaning of the text of Article 59 of the Court’s Statute—the “decision of the Court has no binding force except between the parties and in respect of that particular case”—allows for no other interpretation.  Yet, any State would be highly remiss—and its advocates would border on malpractice—if it argued that an ICJ judgment on a specific legal question should be disregarded because it is not binding.  On the other hand, judicial decisions of other courts may be granted less weight in the ICJ, even though formally, they have equal status with ICJ judgments under Article 38(1)(d) of the ICJ Statute as “subsidiary means for the determination of rules of law.”

Or take Article 27 of the U.N. Charter:

Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members.

In the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), the ICJ held that “concurring,” notwithstanding its apparent textual clarity and travaux to the contrary, included voluntary abstentions from voting.  The Court’s interpretation was based on the “consistent[] and uniform[]” practice of the Security Council.” (para. 22).  As for the U.N. Charter so too for the VCLT, subsequent practice can inform or even transform the original interpretation of a treaty provision.

The article recognizes this tension between the original understanding of the VCLT and subsequent interpretive practice of international courts.  It notes that  (more…)