This week on Opinio Juris, it was too early for Talk Like a Pirate Day, but we certainly talked a lot about pirates. The reason of course was the Ninth Circuit’s decision to agree with Japanese whalers that the Sea Shepherd’s activities amount to piracy. Julian wasn’t fully confident that “private ends” are broader than financial enrichment, and Kevin strongly disagreed with Judge Kozinski’s argument that a “rich history” supports the conclusion that all acts not taking on behalf of a state are for private ends. In two later posts, Kevin responded to comments disagreeing with his claim that politically-motivated acts are traditionally excluded from the definition of piracy, and added his final word (for now). Kevin also described another problem with qualifying the Sea Shepherd’s actions as piracy: that some states -not including the US- do not consider the area where the events are taking place as part of the high seas, but rather as under Australia’s sovereignty.

Kevin also revisited Libya’s admissibility challenge in the Saif Gaddafi case. Considering Libya’s decision to let the trial in Zintan go ahead before the trial in Tripoli on the same charges as the ICC case, he argued that Libya is unable to obtain custody over Saif, and followed up with a post asking whether Libya is even willing to prosecute Saif.

Following a call by Chinese lawyers for the Chinese government to ratify the ICCPR, Julian asked whether international human rights treaties are a suitable vehicle for domestic legal reform. His post was censored from his China Weibo account, on which you can read more here. Roger addressed Julian’s question with a post on a recent empirical article concluding that there is no clear evidence that the leading international human rights instruments have influenced domestic constitution writing, although he argued that the evidence shows that the agreements may have had an impact during their drafting process.

Jennifer Trahan provided a guest post on recent speeches by former State Legal Advisor Harold Koh on the Obama administration’s policy towards the Rome Statute and the ICC.

Ken advertised his C-SPAN Book TV interview, which will air again today, and can also be watched online here. Also competing for your attention this Saturday is the Annual Conference of the Duke Law, Ethics, and National Security Center, which is live-streamed on the web. If more reading is what you’re after, Roger posted a link to his new article applying the Broken Windows Theory to international corruption, and Duncan recommended a series of draft papers on the ILC’s recent Guide to Reservations that are made available on EJIL:Talk! in preparation of a special EJIL issue on the topic. He also looked forward to the return of IntLawGrrls to the blogosphere this coming International Women’s Day. If a picture is worth a thousand words, this cartoon on Drone Heroes, posted by Kevin, says a lot more than that.

Finally, as always, we posted our weekly events and announcements and the weekday news wrap.

Have a nice weekend!

This week on Opinio Juris, Julian returned to his old favourite of the Whale Wars, and argued that the US courts can most likely exercise personal jurisdiction over Sea Shepherd, even in relation to its movements in the Southern Ocean.

Julian also covered a more recent favourite: the Philippines’ UNCLOS arbitration against China. He first reported on an article in the Chinese press quoting an unnamed expert advising the Chinese government not to take the Philippines’ claims too lightly. The advice, however, wasn’t followed, and Julian analysed what China’s decision not to walk down the arbitration path meant for UNCLOS arbitration involving major powers and for the discussion on UNCLOS ratification in the US. When the Philippines’ government decided to continue with the arbitration anyway, Julian didn’t consider this to be a futile exercise, or at least not any more futile than when China had decided to participate.

Kevin didn’t share Julian Assange’s optimism that a successful run in the upcoming Australian elections would lead the US to have to drop charges against him. As our regular readers will remember, Kevin argued last week that the ICC’s OTP committed a serious legal error when it argued that even an in absentia trial would mean that Libya’s admissibility challenge of the case against Saif Gaddafi could pass. It is no surprise then that Kevin was happy to see the OTP retract its submission this week. Kevin also recommended Jens Ohlin’s new article on “Targeting and the Concept of Intent“.

Kristen put the spotlight on International Peace Institute’s recent recommendation to give the African Union a bigger role in transitional justice issues in Africa. Kristen also posted the UN’s letter rejecting the Haiti Cholera claims, but thought the letter didn’t explain why the dispute was a public rather a private claim. Ken added to the discussion with an anecdote from his own experience while working in Bosnia.

Michael Lewis provided a guest post questioning how clear the dividing line between API and APII is, and ought to be.

If you’re planning to watch the Oscars this weekend, make sure to have a look at Deborah’s latest post on Zero Dark Thirty in which she discusses another forgotten element of the real story in the movie: the possibility of regret by those involved in the authorization of torture.

If your weekend plans include writing that long neglected paper, don’t make the mistakes listed by Roger when he stepped in the discussion on why academic writing is so bad. Check out our list of events and announcements too, maybe there is conference that is looking for just that paper!

Finally, as always, we provided you with our weekday news wraps.

Have a nice weekend!

This week on Opinio Juris, Julian noticed the apparent truce between the American right and the ICC, but didn’t go as far as calling it peace. Further on the ICC, Kevin pointed out a flagrant mistake at the Washington Times, and argued that the OTP was wrong in concluding that Libya is able to try Saif Gaddafi, because the Rome Statute does not consider a trial in absentia to meet that standard. Talking about criminal prosecutions, Peggy asked whether Pope Benedict XVI could be sued in the child sex abuse cases, when he retires later this month.

Julian discussed the latest interim order in the saga of the Lago Agrio case between Chevron and Ecuador, and wondered whether there is anything stopping Ecuador from dragging its feet in complying with the order. Roger weighed in in the comments.

In another post, Roger reflected on the role of intellectuals as Doubters-in-Chief of a society, and how often we take this for granted in a free society. Following the reference to the importance of citizenship to society in Obama’s State of the Union address, echoing earlier speeches, Peter argued that this is unfortunately more of an ideal not reflected by reality.

Peter also drew our attention to the issue of private rights of action under the Hague Convention on the Civil Aspects of International Child Abduction that is likely to reach the Supreme Court after the Second Circuit split with the Fourth Circuit.

To finish off the week, Deborah gave her view on the increasingly popular argument to create a drone court with jurisdiction to review targeted killing decisions.

If you want to read more this weekend, can we refer you to Kevin’s new his essay on Charles Taylor’s sentencing or an essay by Noam Lubell and Nathan Derejko on the Geography of NIAC, recommended by Kevin? Or, if you’d rather turn to writing, check out our events and announcements post. Kevin also posted a call for papers for the newly launched London Review of International Law. In the spirit of the Review’s intention to include “non-traditional forms of engagement with international legal themes”, Roger posted the poem Cruel Window No More.

You can also find our summary of international law news in our weekday news wraps.

Have a nice weekend!

This week on Opinio Juris, Duncan started us off by discussing privileges and immunities for diplomats and posed the question of what the public should know in cases like DWIs. His next post offered a discussion of the Native American mutual defense treaty involving the Tar Sands Projects.

Kevin weighed in this week on affairs at the ICC, including this post outlining Libya’s contempt for the Office of Public Counsel for the Defense in the Saif Gaddafi case, and on a related note, with respect to the Al-Senussi case, he pointed out that Libya has now taken to insulting Al-Senussi’s defense counsel.

Kevin also pointed out a recent discussion started by Robert Howse on Prawfsblawg discussing the future of American legal education. Professor Howse was kind enough to then offer a guest post in response to Kevin’s thoughts.

The US Department of Justice’s White Paper was leaked this week, and Kevin pointed out its fatal flaw in international law (the lack of discussing organization with respect to Al Qaeda) and called attention to its confused approach to imminence and capture.  Deborah also had a post outlining her initial thoughts and critique of the White Paper. She also pointed out that Obama has ordered the release of classified memos to congressional oversight committees regarding targeted killing, calling it a step in the right direction.

Roger had a post discussing the recent decision in a Dutch district court against Shell and alternatives to ATS litigation in the United States and a post about John Kerry’s opening speech in his position as US Secretary of State, following Hillary Clinton. He also called attention to his latest article, which has just been published in the Virginia Journal of International Law, analyzing section 1782 discovery proceedings in the context of BIT arbitration.

Also active this week were Ken, who posted an update to his earlier post on the rising price of olive oil, and Kristen, who called attention to a recent conference organized by the University of Georgia Law School designed to define the word “scarcity” as it applies in international law.

And last but not least, as usual, we featured our Events and Announcements post as well as our Weekday News Wraps.

This week on Opinio Juris, Julian kicked off on a lighter note with a Chinese cartoon on the maritime dispute between China and the Philippines.

IHL and ICL lawyers were well catered for throughout the week, starting with a guest post by Michael W. Lewis, who discussed two more issues raised at the Boundaries of the Battlefield symposium: “elongated imminence” in response to an armed attack and the lack of operational experience of those writing on international humanitarian law. Kevin later took issue with the suggestion that Israel’s Six Day War supports an “elongated” concept of imminence.

Alexander Wills added two more arguments in favour of allowing states to make article 12(3) declarations under the ICC Statute and for these to have retroactive effect. Also on the ICC and Palestine, Julian shared his two reactions to a NY Times op-ed by Professor George Bisharat calling for an ICC investigation, which triggered a lively discussion in the comments.

A potential ICC’s claim was far from Israel’s only worry this week, with the UN Human Rights Council strongly condemning Israel’s settlements policy. Kevin commented on the report’s main conclusions here. And then there is of course Iran’s threat; Kevin updated his timeline of estimates of when Iran will have the bomb.

And if these posts were not enough, Ken recommended Benvenisti and Cohen’s new article on SSRN addressing the laws of war from an principal-agent perspective.

Two more guest posts graced our blog this week. Başak Çalı provided her final guest post in a series on international judicial review, in which she assessed the legal policy implications of the variable standard used by the European Court of Human Rights, and Jonathan Hafetz analysed the changes and the continuities in renditions under the Obama administration. He expressed particular concerns about the use of proxy detention and the substantive reach of US counter-terrorism legislation.

Finally, Roger posted a chart depicting the legal system of the world, and updated it with a more accurate one.

As always, we kept you informed with our weekday news wraps and a list of events and announcements. Deborah also advertised a panel discussion of Zero Dark Thirty hosted by Cardozo Law School on February 11.

Thank you to our guest contributors and have a nice weekend!

This week on Opinio Juris, Duncan was thrilled that the Supreme Court had finally reached a decision on whether to grant certiorari in Bond v United States, a case that requires revisiting Missouri v Holland. Julian though questioned whether Bond v United States will matter, although he gave his own two cents on the treaty power and federalism later.

Julian clearly got more excited about the Philippines’ move towards UNCLOS arbitration in the South China Sea dispute with China, which he labelled a game-changer. In further posts on this arbitration, he reflected on China’s options, disagreed with the Chinese argument that it could still withhold agreement to set up a tribunal and reflected on the irony that the Japanese ITLOS President gets to appoint an arbitrator on China’s behalf if China fails to do so.

Julian was surprised by John Bellinger’s op-ed on intervention in Syria, which John Bellinger then clarified in a guest post. Julian also noted a slight shift in the US foreign policy establishment against drone strikes with a recent critique on current policy by the Council of Foreign Relations

Kevin meanwhile was (nearly) rendered speechless, not once but twice, first by the US Air Force’s claim that US militarism is a fitting tribute to Martin Luther King and then by an article quoting Jeh Johnson as stating that MLK would approve the US’ current wars. He also thought that it was pathetic for Susan Rice to object to a “State of Palestine” nameplate in the UN Security Council. And this brings me to his next post on Palestine, summarizing why it matters formally that Palestine ratifies the Rome Statute on top of its ad hoc declaration under article 12(3).

In other posts, Kevin found a further reason to disagree with Judge Pohl’s decision in al-Nashiri, this time because of Hamdan II. Peter Spiro looked at President Obama’s second inaugural speech from the perspective of citizenship and concluded that the speech was mainly intended for domestic consumption. Julian had not noticed last weekend’s conclusion of the negotiations on an international agreement on the control of mercury and wondered about the negotiation dynamics. Finally, Kristen provided a list of International Law Apps and wondered whether we’ll see more of them in the future.

As always, we also provided a list of events and Announcements and our weekday news wraps.

Have a nice weekend!

The week on Opinio Juris started off on a lighter note with Ken’s post on the Obama Administration’s response to a petition to build the Death Star. And although the administration’s answer encourages readers to  ”pursue a career in a science, technology, engineering or math-related field”, our comments raised the question of customary inter-stellar law. The pop cultural fun continued later with a video linking Ken to the Terminator…

The call for referral of the Syria situation to the ICC was the topic of two posts. In a guest post, Jennifer Trahan analysed the merits of a referral and expressed some concerns about its implementation. Kevin also weighed in with a few thoughts. Jennifer’s comment then led Kevin to develop his argument that the Security Council cannot implicitly amend the ICC Statute, which triggered further discussion in the comments.

Continuing on the ICC, Kevin posted why Saif Gadhafi’s first court appearance in Libya undermines the state’s arguments in its complementarity challenge at the ICC. In another post, Kevin was very critical about the decision by Judge Pohl rejecting the argument that the US and Al-Qaeda were at war at the time of the attack on the USS Cole.

Kristen Boon compared sanctions by the UN Security Council with those imposed by regional organizations, particularly the African Union and ECOWAS, who are becoming increasingly active. Further on Africa, Deborah asked whether, under international and domestic law, the US could engage in armed drone strikes to assist the French intervention in Mali.

We also had two guest posts this week. Peter Margulies provided a guest post summarizing the debate on targeted killing at a recent symposium on the Boundaries of the Battlefield, co-ordinated by my fellow Assistant Editor, Jessica Dorsey, and Başak Çalı posted the second part of her series on international judicial review, comparing two cases of the European Court of Human Rights.

In addition to our regular Events and announcements post, Julian announced that Tom Graham, member of the WTO’s Appellate Body, will give the Shapiro lecture at Hofstra on February 6. Roger congratulated David Caron on his appointment as the new dean at the Dickson Poon School of Law at King’s College London, and Kevin welcomed Diane Marie Amann back to the blogosphere. As always, we also provided you with daily news wraps.

Many thanks to our guest contributors and have a great weekend!

This week on Opinio Juris, Kevin responded to Eugene Kontorovitch’s post over at The Volokh Conspiracy on the comparability of Israel’s settlement of the West Bank to Turkey’s settlement of Northern Cyprus, by arguing that both settlements are not comparable. Eugene rebutted by advancing five reasons why Turkey’s settlement is the graver violation of international law.

Reflecting on Zero Dark Thirty, Deborah wrote about the responsibility of film makers for the story they decide to tell, and deplored that Bigelow and Boal were not willing to engage more deeply in the public conversation on the use of torture in the war on terror. Further on the War on Terror, Ken argued that Jen Daskal’s NYTimes op-ed on keeping Guantanamo open for now is less heretic for a human rights lawyers than its title suggests.

Meanwhile, Duncan is still waiting for the US Supreme Court to decide on whether to grant certiorari, and in the process revisit Missouri v Holland, in the case of Carol Ann Bond.

Roger Alford posted a graph showing the growth of international law scholarship on Westlaw since 1987. Kevin brought two pieces of new scholarship to your attention by posting links to his essay on the role of the international prosecutor, forthcoming in the Oxford Handbook of International Adjudication, and to a very timely essay by Luc Reydams on the US-Rwanda relationship.

In addition to posts by our regular contributors, we welcomed three guests on the blog this week. First, William Dodge contributed a guest post updating us on recent developments in official acts immunity. In her post, Jennifer Trahan hailed the extension of the US Rewards for Justice program to include the arrests of those wanted by international criminal tribunals, and suggested other ways to strengthen the US-ICC relationship. Finally, Başak Çalı offered a different framework to look at the often difficult relationship between domestic courts and the European Court of Human Rights, arguing that the latter is only engaged in weak international judicial review.

As always, we also provided you with our weekday news wraps and a listing of events and announcements.

Many thanks to our guest contributors and have a nice weekend!

Over the holidays here at Opinio Juris, the comments section of Kevin’s post on the distinction between the legality and the morality of drone strikes was a hive of activity. The post itself was a follow-up to a first post in which Kevin applied a comparative criminal law lens to argue that under the broader understanding of intent prevailing outside the United States, the moral distinction between the intentional killing of children in Newtown and the unintentional killing of children during drone strikes isn’t all that clear.

Inspired by the suggestion that Palestine could limit an ICC referral to the situation in the West Bank, Kevin advanced legal and political arguments against the notion that a self-referral could be geographically limited. Further on the ICC, Jelia Sane contributed a guest post reflecting on the Court’s first acquittal.

The end of 2012 inspired Chris to look towards future areas of (international) law in 2013 and beyond, focusing in particular on the need for regulation to deal with the impact of technological change, such as flying cars and 3D printing. Ken has already made a new year’s resolution to post more about robots, but promised to cover other areas as well. His first post of the year covered adulteration of extra virgin olive oil, showing that there is no limit to potential international law questions. Kristen Boon also reflected on the role of international law in settling the East China Sea dispute.

If you need to catch up with the news of the past fortnight, our weekday news wraps may be helpful. As always, we also provided our weekly events and announcements posts (1, 2).

Best wishes for 2013 to all our readers!

This week on Opinio Juris, Kristen Boon followed up on her discussion last week about changes towards more transparency and fairness in the UN’s Al Qaida sanctions regime.

Craig Allen contributed a guest post on the ITLOS’ interim order for the release by Ghana of Argentina’s ARA Libertad. UNCLOS was also central to Duncan Hollis’ post on China’s submission to the Continental Shelf Commission in relation to the dispute regarding the Senkaku/Diaoyu islands.

Peggy McGuinness congratulated Diane Amann, Leila Sadat and Patricia Sellers on their appointments as special advisor to the ICC’s OTP, but was saddened that Diane’s appointment meant a goodbye from IntLawGrrls.

In response to John Bellinger’s NYTimes op-ed, Chris Borgen argued that it is up to Republican leadership to address their base’s aversion towards international treaties. Further on news from the US Senate, Deborah Pearlstein posted the open letter by Senators Feinstein, Levin and McCain to Sony Pictures, protesting against the depiction of torture as an effective means of intelligence gathering in the new movie Zero Dark Thirty. She followed up with a post on the CIA’s press release about the movie.

We concluded the week with our final journal symposium of the year, on the latest issue of the Leiden Journal of International Law. Dov Jacobs introduced the two articles to be discussed, and the comments, here. The first article, by Monika Ambrus, looked through the lens of discrimination law at the question of defining a group for the purpose of the definition of genocide. William Schabas questioned why the definition of genocide needs to be broadened given that the definition of a crime against humanity has already been expanded to include peacetime atrocities. Frederic Mégret’s comment focused on the 19th century understanding of race and ethnicity that permeates the genocide definition. Monika Ambrus’ response is here. Samantha Besson’s article on extra-territoriality of the European Convention of Human Rights was the second article in the symposium. Comments were provided by Cedric Ryngaert and Marko Milanovic, to which Samantha Besson responded here.

Our weekly events and announcements and weekday news wraps completed the week.

Have a nice weekend!

This week on Opinio Juris, a guest post by Daniel Bethlehem, following up on a post by Julian Ku last week, offered three more legal bases for the legality of an intervention in Syria. Also continuing on some of last week’s themes, Kevin Jon Heller wrote how a recent decision by the ICC’s Appeals Chamber confirms his argument on retroactive ad hoc jurisdiction, and Deborah Pearlstein couldn’t resist taking apart Eric Posner’s Slate article on Jeh Johnson’s recent speech in Oxford. In another post, Deborah refused to read too much into the decisions by Harold Koh and Jeh Johnson to step down from their respective roles at the State Department and the Pentagon.

Ken Anderson recapped the recent debate on autonomous weapon systems and regulation, about which he has created a brief bibliography over at Lawfare. He also extended his congratulations to various members of the OJ community, including Kevin who was recently promoted to Associate Professor & Reader.

Kevin discussed rumours that the OTP is investigating the actions of the M23 movement and others in eastern Congo, and Kirsten Boon discussed the UN Security Council’s upcoming review of the mandate of the Ombudsperson and monitoring regime for al-Qaida sanctions.

On a lighter note, Duncan Hollis provided a link to Jimmy Fallon’s routine on the best treaty in the world and Kevin posted about international relations as depicted by cats.

As always, we provided a listing of upcoming events and daily news wraps.

Have a nice weekend!

This week on Opinio Juris, we continued a few conversations from last week. Kevin Jon Heller clarified his argument about the retroactive acceptance of the ICC’s jurisdiction, and challenged the assumption that Palestine was not a state before last week’s UNGA vote. Deborah Pearlstein advanced three reasons for the importance of Jeh Johnson’s recent speech on the conditions for calling an end to the war on terror.

Continuing on the war on terror, Kevin expressed concern over the extension of US targeting policy in Afghanistan to “children with potential hostile intent“.

A few posts dealt with the growing divide between US law and international law. In a guest post on the Feinstein amendment to the National Defense Authorization Act, Jonathan Hafetz argued that the amendment widens the rift between US constitutional law and international law by deepening discrimination against non-citizens.  Peter Spiro and Julian Ku both wrote about the Senate’s rejection of the Convention on the Rights of Persons with Disabilities. Peter argued that the rejection does not prove that sovereigntism lives, but rather that the supermajority required by the US constitution’s Treaty clause is outdated. He also posted a link to a Daily Show segment on the vote. Julian argued that sovereigntists should have held their fire for other treaties that, contrary to the CRPD, may actually have an impact on US law. In another post, Julian argued that a unilateral US intervention in Syria if the Assad regime deploys chemical weapons would be illegal under international law.

Following a recent meeting of the International Commission on the Conservation of Atlantic Tuna, Kristen Boon discussed possible incentives to avoid overfishing. Kristen also discussed whether the Charter of Economic Rights and Duties of States (CERDS) could fill the legal void surrounding land grabbing.

As always, we also provided a list of upcoming events and weekday news wraps.

Have a nice weekend!