This week on Opinio Juris, we continued the discussion on Syria. Geoff Corn started the week by examining President Obama’s options if Congress were not to enact an AUMF, a question that also occupied Peter who yearned for the good old days of unilateral presidential authority to initiated use of force.
When the surprise Russian proposal to put Syria’s chemical weapons under international control put the Congressional vote on hold, Kevin was not convinced that this twist had anything to do with the “credible threat” of a US unilateral strike. Chris asked to what extent the OPCW could be involved in the practical implementation of the proposal. Chris’ post also pointed out how Russia has been more adept than the US at using international law rhetoric, a point he followed up on in a post comparing the international legal rhetoric in Obama’s speech with that in Putin’s NYTimes op-ed.
The possible legal basis for action continued to fascinate us. Kevin wondered what motivated President Obama’s new theory of customary international law, in which the percentage of the world’s population that lives within the territory of a party to a treaty would determine whether the treaty gives rise to custom. Julian linked to a forthcoming article by Andrew Carswell on the possibility of General Assembly action based on the Uniting for Peace resolution. Following a comment by the White House Counsel that a strike would not be prohibited under international law, Julian wanted to know more about the theory on which the White House thinks a strike would be legal under international law. Make sure you catch the comment by Charlie Savage who interviewed Ms Ruemmler.
Despite all these posts on Syria, we are not quite rebranding to Opinio Syriae just yet! (more…)
Syria dominated (and continues to dominate) the headlines this week, and we featured many takes on the developing situation through our Syria Insta-Symposium.
From our regular contributors, Julian pondered whether President Obama would reveal the international law justification on his position regarding intervention in Syria and Kevin questioned US Secretary of State John Kerry’s classification of Syria as the United States’ “Munich Moment.”
Peter and Deborah both discussed US domestic/constitutional implications at length. Peter called President Obama’s decision to consult Congress on military intervention a “watershed moment” and wondered if his lawyers were consulted in this apparent about-face move, while Deborah classified it as a wise decision by Obama. They both offered commentary on the text of the Senate draft AUMF (Peter here, and Deborah here) and Deborah also pointed to a discussion she took part in among scholars on the Huffington Post. Julian also weighed in on the AUMF, concluding that the UN Charter does not matter to the US Senate’s deliberations on authorizing force in Syria and Ken discussed the role of the Security Council in light of his recent ASIL Insight and posting at Lawfare.
From our guest contributors, Jennifer Trahan started off the symposium by taking on contentious subject matter in a post discussing the legality of a strike by the United States. John Quigley weighed in with his thoughts on intervention while Andre Nollkaemper sketched out the two paths States might choose to take for intervening: either acting inside or outside of international law. Marty Lederman weighed in with a two-part posting, the first talking about the intersection of the UN Charter and the US Constitution, and the second addressing the role of the UN Charter in the US Congressional debate. The former theme of Marty’s two posts was also featured in Charlie Kels‘ contribution discussing the intersection of the two legal regimes. Stephanie Carvin urged readers to bring practical judgment back in rather than solely relying on legal solutions, while Sondre Torp Helmersen crafted a reply to Stephanie’s post. Krista Nelson offered an analysis on the significance of using chemical weapons in international law.
Otto Spijkers offered a perspective on whether states could stand idly by in the Syria situation by comparing bystander obligations at the international level to Dutch domestic law. Ezequiel Heffes and Brian Frankel talk about the decision-making process in R2P situations, and Mark Kersten wonders whose R2P it is, anyway.
And in non-Syria news this week, Julian pointed out that Japan has threatened to take Korea to the ICJ over victims’ compensation claims in the Second World War, Kevin described why Kenya won’t withdraw from the ICC and Kristen covered Friday’s verdict in the Dutchbat case from the Dutch Supreme Court holding the Netherlands responsible for the deaths of three men at Srebrenica.
As usual, we provided our Weekday News Wraps as well as upcoming Events and Announcements. Have a great weekend!
This week on Opinio Juris, the possible intervention in Syria took centre stage. Julian rounded up statements by the UK, Russia and France on the legality of a military intervention without UN authorization, and declared that the doctrine of humanitarian intervention suffered a massive blow when the UK House of Commons rejected a resolution on military strikes. Deborah discussed why the doctrine of humanitarian intervention cannot provide legal support for US context. In the US context, Julian wondered why President Obama takes a different position from candidate Obama on the need for congressional authorization.
Kevin provocatively asked what sets chemical weapons apart from conventional weapons that makes their deployment a relevant factor for intervention. Kevin also argued why the UNSC cannot ask the ICC to investigate only the crimes committed by the Assad regime, and pondered the ICC’s options should the UNSC make such a referral anyway. He also referred to a post by Bill Schabas on the dynamic interpretation of the Rome Statute to include chemical weapons, and posted this tumblr as an accurate depiction of his position.
On August 28, Roger marked the 50th anniversary of Martin Luther King’s “I Have a Dream” speech, whereas Chris joined the Peace Palace‘s 100th birthday bash. While in The Hague, Chris visited the Permanent Court for Arbitration which will handle the Philippines-China arbitration. Chris had further visits scheduled with the ICC and the Special Tribunal for Lebanon, and will report more about those visits in the next few days.
In international courts related news, Julian wondered whether recent comments by Colombia’s Vice President indicated that Colombia was set on ignoring the ICJ ruling in its dispute with Nicaragua, and Kevin shared his thoughts on Judge Harhoff’s disqualification in the Seselj case.
In our Emerging Voices symposium, Drew Cohen examined Botswana’s call on the South African Development Community to examine election fraud in Zimbabwe; Matiangai Sirleaf advocated a thicker conception of justice that would include issues of distributive justice in transitional justice efforts; and David Attanasio proposed a change to the Inter-American Human Rights system to deploy it in the fight against drug cartels and other militarized criminal organizations in Latin America. Efrat Bouganim-Shaag and Yael Naggan finished the week with a post on peace-time crimes against humanity and the ICC.
Peter posted about international law on Twitter, and looked for our 5000th follower (we’ve reached that milestone since!).
Finally, as always, we listed events and announcements and Jessica provided you with her weekday news wraps.
Thank you to our guest contributors and have a nice weekend!
This week on Opinio Juris, Kevin welcomed the new international criminal law blog Beyond The Hague to the blogosphere and sparked much debate with his post based on Judge Harhoff’s recent comments about the ICTY Appeals Chamber’s Perisic adoption of the specific-direction requirement and followed-up with a second post on the topic clarifying what the specific-direction requirement entails. Kevin also questioned the latest in the Libya and Saif Gaddafi situation, with Libya’s statement that they aren’t able to surrender him, but they could, in fact, prosecute him.
Kristen pointed to the recently released fifth report from the UN Secretary General on R2P and highlighted several interesting topics that are strangely missing, including discussion about Libya, military intervention or the Security Council, extraterritorial obligations of states, the ICC and new technology. Duncan called our attention to a novel agreement between the US and Germany not to spy on one another and asked wondered how it would work in practice.
In our Emerging Voices series, Žygimantas Juška spoke about the role of standby counsel based on his experience at the ICTY on the Karadzic Defense Team, Elizabeth Stubbins Bates’s post investigated whether the dissemination of IHL was sufficient in promoting the compliance thereof, a spirited exchange of commentary ensued with John Heieck’s piece controversially suggesting that Russia and China breached their duty to prevent war crimes in Syria, Bharat Malkani pondered whether international law may forbid complicity in the death penalty in light of a recent sentencing in Kenya, and Elizabeth Holland rounded out the week talking about the effect of counterterrorism measures balanced against humanitarianism needs, particularly about access to areas controlled by armed groups.
We also listed events and announcements and we provided you with your daily news wraps, as usual.
Thank you to our guest contributors and have a nice weekend!
This week on Opinio Juris, Kevin continued his discussion of the al-Bahlul amicus brief started last week. He pointed out how the Prosecution had disclaimed JCE before the trial and the military commission was asked not to consider this mode of liability, making its invocation in the amicus brief unacceptable in his opinion. Kevin pointed out that JCE was also rejected in Khadr, and recommended a student note on material support for terrorism and JCE. He also responded to Peter Margulies’ reply and sur-reply over at Lawfare. In a guest post, David Frakt, who was detailed as al-Bahlul’s military defense counsel, pointed out a factual error in the amicus brief.
Our Emerging Voices symposium returned after last week’s break: Leslie Schildt posted about the UN’s Intervention Brigade in the DRC; Frances Nguyen argued that “forced marriage” should be taken out of the “other inhumane acts” box and be recognized as an international crime; and David Benger wrote on the limits of the ICC’s Regulation 55.
Kevin discussed how mainstream US media are focusing only on Wikileaks but ignoring how the NYTimes also published the documents leaked by Bradley Manning. Following Bradley Manning’s conviction for espionage, Kevin corrected a common misperception about the meaning of “bad faith” in the Espionage Act. He also updated us on Libya’s latest admission that it intends not to cooperate with the ICC, and added that Libya’s representative is arguably in violation of the ICC’s Code of Professional Conduct. Kevin will not be updating us anymore on Crossing Lines though.
As always, we listed events and announcements and provided weekday news wraps.
Thank you to our guest posters and have a nice weekend!
This week on Opinio Juris, we teamed up with the American Journal of International Law to bring you a discussion on the two lead articles in their latest issue. Jose Alvarez, the co-editor in chief of the AJIL, explained their decision to run this online symposium, and discussed what ties both articles together, despite their differences.
First up was Leila Sadat’s article, Crimes Against Humanity in the Modern Age, summarized here. In his comment, Darryl Robinson traced the history of academic discourse on the policy element and highlighted the most recent decision in Gbagbo. Elies van Sliedregt argued in favour of the humaneness side of humanity to give the concept of crimes against humanity a modern meaning. Leila’s response is here.
Eyal Benvenisti then introduced his article, Sovereigns as Trustees of Humanity, in which he tests the limits of the traditional concept of state sovereignty in light of the intensifying interdependence between states. (more…)
This week on Opinio Juris, we continued our Emerging Voices symposium. Patricia Tarre Moser started the week with her proposal for the unilateral withholding of sovereign immunity as a countermeasure against jus cogens violations. Scott McKenzie wrote on the application of international water law principles to the simmering tension between Egypt and Ethiopia on the latter’s decision to dam the Nile. Daniel Seah wrote about implied conferrals in ASEAN. Tendayi Achiume argued in her post that efforts to combat xenophobia faced by refugees and migrants need to be more aware of the underlying socio-economic conditions. Chelsea Purvis pleaded for more engagement with African human rights law. The Emerging Voices symposium will take a one week break to make space for a symposium on the two lead articles in the latest issue of the American Journal of International Law, starting on Monday.
In a guest post, Ozan Varol argued why the Egyptian military’s ouster of President Morsi was not a democratic coup.
Kevin updated us on the latest twist in Libya’s efforts to avoid handing over Saif to the ICC. At least Crossing Lines is even more confused about the ICC’s jurisdiction, although Kevin admitted to finding this week’s episode quite interesting. Sometimes fiction can teach international lawyers something though, as Chris explored in this post on what political science fiction can bring to international law.
What isn’t science fiction though is the growing market in which hackers sell computer vulnerabilities they have discovered. Chris posted about the sometimes perverse incentives to regulate this market, particularly once governments get involved.
In other posts, Kevin accused the US of applying double standards on the prosecution of money laundering in support of terrorism, and described the Fourth Circuit’s decision in US v Sterling as the most compelling defense of WIkileaks; Ken wrote about the Supreme Court’s upcoming review of Bauman v. DaimlerChrysler, and the questions it raises for extraterritoriality; and Kristen posted about new scholarship on the legal implications of the Syrian conflict.
As always, Jessica provided you with weekday news wraps and we listed events and announcements. Kevin also announced he is moving to SOAS in early 2014.
Finally, if you like our blog, we’d love for you to nominate us for the ABA’s 7th annual Blawg 100.
Thank you to our guest posters and have a nice weekend!
This week on Opinio Juris, we kicked off our inaugural Emerging Voices symposium with a post by Christopher Warren on the disciplinary fragmentation between law and other areas of the humanities. Fragmentation between different investment regimes prompted Maninder Malli to argue for minilateral approaches in international investment law as a middle ground between atomized BITs and unattainable multilateral initiatives. In his post, Scott Robinson proposed an “Ottawa Process” to achieve an LGBTQ Treaty. Also on human rights, Ruvi Ziegler argued that the European Court of Human Rights has misapplied the ‘margin of appreciation’-doctrine in its decision on expats’ voting eligibility. Otto Spijkers and Arron Honniball rounded up the first week of the symposium with a post on global public participation in the development of the Sustainable Development Goals.
In our regular posts, Chris wrote on the overlapping interests around Okinawan independence and Duncan posted a link to the 2012 edition of the U.S. Department of State’s Digest of U.S. practice in international law. Immunity was the topic of two posts, one by Duncan on the costs of diplomatic immunity for host states, and one by Kristen with an update on the UN’s response to the complaint by Haiti Cholera victims. Kevin marvelled again at the broad jurisdiction of the ICC, at least in Crossing Lines. He was also critical about an op-ed by Ken Roth on the specific direction requirement, which he said conflated different modes of participation.
Our bloggers have also been busy outside the blog: you can read more about Ken’s views on the UN in David Bosco’s interview with him and Brett Schaefer, and about Chris’ work in a report he co-authored on Managing Intractable Conflicts: Lessons from Moldova and Cyprus.
As always, Jessica provided weekday news wraps and we had our weekly listing of events and announcements. Deborah also announced an event by the ICRC and the ASIL’s Lieber Society on 150 years of War Regulation.
Many thanks to our Emerging Voices participants, and have a nice weekend!
This week on Opinio Juris, Kevin posted how there will be no golden arches in the West Bank, kept track of the latest episode of Crossing Lines, and wondered about the anonymity of an ICTY witness whose name was made public by the ICTY.
Ken turned the spotlight back to the Chevron/Ecuador dispute. A Washington Post profile on the dispute led him to inquire about third-party litigation finance. He also pointed to Julian’s WSJ op-ed, with George Conway, on Chevron’s legal offensive.
Julian has been busy, he also posted an abstract of his paper on the lack of enforcement of ICSID rewards in China.
Peter marked Independence Day with a post on paths away from citizenship used by expat Americans burdened by FATCA filings.
Jessica returned from holiday with her weekday news wraps, and we also listed events and announcements.
Finally, a technical glitch is plaguing our e-mail updates, but we hope to have it resolved soon.
Have a nice weekend!
This week on Opinio Juris, our main event was a book symposium on Katerina Linos’ The Democratic Foundations of Policy Diffusion, introduced here (along with details on OUP’s special offer to our readers). David Zaring and Larry Helfer kicked off the symposium on Monday, and Katerina responded here. On Tuesday, Eric Posner commented on the relationship between policy diffusion and international law, and Ryan Goodman discussed the findings of Katerina’s political opinion experiments. Katerina’s response at the end of day 2 can be found here. On Wednesday, Anu Bradford described how the book can inform the debate on international organizations, and Rachel Brewster welcomed the book’s insights on the influence of international law on national politics. Katerina’s response is here. On the final day of the symposium, Pierre Verdier asked whether the mechanism of policy diffusion would also apply in other areas of international law and policy co-ordination; Harlan Cohen reflected on the book’ conclusions and implications; and Roger raised the question about the role of courts in the diffusion process. Katerina’s final response is here.
The symposium also tied in nicely with Peter’s post on a new sovereigntist essay in Foreign Affairs. As Peter points out, Katerina’s findings may suggest that the tide is shifting on international law.
Roger reviewed Andrew Guzman’s book Overheated, following Hari Osofsky’s review last Friday.
Kevin followed up on the fallout of Judge Harhoff’s letter, called NBC’s new show Crossing Lines an “unmitigated disaster” and was sceptical about the implications, according to John Dugard’s article, of the ASP’s President’s failure to table a letter on Palestinian statehood. He also recommended a new essay by Ohlin, Van Sliedregt, and Weigend on the Control Theory of Perpetration.
In the category of “oddball questions of international law”, Duncan discussed a Canadian case on diplomatic immunity in case of a dog bite.
Finally, we listed events and announcements and provided weekday news wraps.
Many thanks to our guest contributors, and have an nice weekend!