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Weekly News Wrap: Monday, November 16, 2015

Your weekly selection of international law and international relations headlines from around the world: Africa Judges at the International Criminal Court on Friday granted early release to convicted war criminal Germain Katanga, making the Congolese warlord, sentenced to 12 years in prison in 2014, the first ICC convict to be freed. The Congo Basin in Africa, the world's second-largest tropical forest, is facing...

NYU Journal of International Law and Politics Online Symposium

[This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.] We are proud to partner once again with Opinio Juris to present an online symposium discussing a thought-provoking issue of international significance. This year, we highlight Professor Rachel Lopez’s The...

The Unwilling Part of “Unwilling or Unable”

Marty Lederman last week posted a typically comprehensive treatment of the legal issues raised by Charlie Savage’s account of the administration decision to send forces into Pakistan to kill or capture Osama bin Laden. I’d earlier criticized the CIA’s apparent view that non-self-executing treaties are not legally binding on the President, and I take Marty plainly to agree with this principle. It’s no doubt true there is yet more to learn and understand about how the CIA’s position on this question has actually manifested itself in administration decision-making, but given what we already know, I’m not sure how to avoid the already deeply concerning conclusion that as a general matter the CIA seems to have badly misunderstood the legally binding nature of treaties the United States has signed and ratified. Where Marty and I appear to disagree is on the question (a question I set aside at the beginning of the last post) whether the United States’ incursion into Pakistan during the bin Laden mission violated Article 2(4) of the UN Charter (one of those legally binding (even if non-self-executing) treaty provisions) prohibiting the “use of force against the territorial integrity or political independence of any state.” There is of course vigorous ongoing disagreement (e.g. here and here, but this is only the tip of the iceberg) about the argument that there is any exception to the Art. 2(4) principle on the grounds that the target country is “unwilling or unable” to address the threat a non-state actor on its territory poses to the targeting country. But let’s ignore all that for now and just assume for the sake of argument that one embraces some “unwilling or unable” exception to the Article 2 prohibition. Even assuming as much, the argument the administration lawyers appear to have made in the bin Laden case goes a step beyond. In particular, because the United States did not want to risk alerting Pakistan of the operation in advance for fear that Pakistani officials would inform bin Laden, the lawyers would have had to argue that the targeting country could conclude on its own that the target country is “unwilling” to address the non-state actor threat, whether or not the country would in fact be willing if asked. In Marty’s conception, the argument would go as follows. (1) The “unwilling or unable” test “is best understood as an application of the jus ad bellum requirement of necessity.” (2) Because the United States had a reasonable and well-founded fear that elements of the Pakistani government would have tipped off bin Laden, making any subsequent intervention impossible, it was reasonable for the lawyers to conclude that the U.S. use of force “without prior Pakistani notification/coordination was, more likely than not, necessary to interdict the threat posed by bin Laden.” (emphasis mine) Put more directly, a target country can be deemed “unwilling” to address a non-state actor threat if the targeting country thinks it is “necessary” to do the targeting itself. Marty forthrightly notes that there is no current law that informs this argument – an artifact, it seems to me, of the reality that only a handful of countries have yet recognized the “unwilling or unable” exception at all. But that does not mean there is no law here that applies.

Weekly News Wrap: Monday, November 9, 2015

Your weekly selection of international law and international relations headlines from around the world: Africa Residents of Sierra Leone's capital held a candlelit vigil and celebrations to mark the end of an Ebola epidemic that has killed almost 4,000 people including more than 220 health workers since it began last year. The international community has condemned Burundi's government for inciting violence amid a...

New General Editors for CUP’s International Law Series

I'm delighted to announce that two good friends, Leiden's Larissa van den Herik (also one of my PhD supervisors!) and Manchester's Jean d'Aspremont, are the new General Editors for CUP's prestigious Cambridge Studies in International and Comparative Law book series, which celebrates its 70th birthday next year. Here is Larissa's statement: It is with great enthusiasm that I take on the general editorship of...

A Fascinating Interview with Duncan Kennedy

Duncan, unlike David, is not primarily an international law scholar. But Kennedy's work on critical legal studies has had a profound influence on most left-wing international law scholars -- including me. So I wanted to post a link to a fascinating and wonderfully substantive interview with him conducted by Tor Krever, Carl Lisberger, and Max Utzschneider. I had no idea Kennedy worked...

Remembering Professor Burns Weston

Professor Burns Weston passed away on October 28, 2015.  His daughter, Rebecca Weston, wrote the following obituary, which she passed on to us to circulate among the international law community.  I never had the privilege of meeting Professor Weston, but was a regular user of his textbooks (on both international law and international environmental law).  I know I speak for...