General

Bhagwati in Foreign Affairs on Bottom-Up Immigration Reform

Columbia University's Jagdish Bhagwati and Francisco Rivera-Batiz have an excellent piece in the November/December issue of Foreign Affairs in which they throw up their hands at the prospect of comprehensive immigration reform and look to the states for some progress on the issue. The piece served as the basis for Bhagwati's delivery last week of the 2013 Emma Lazarus Lecture,...

LJIL Symposium: A Comment on Janina Dill’s “Should International Law Ensure the Moral Acceptability of War?”

[Gabriella Blum is the Rita E. Hauser Professor of Human Rights and Humanitarian Law at Harvard Law School.] In her rich and sophisticated essay, Janina Dill takes on the principle of distinction in international humanitarian law (IHL). She finds that while the principle obscures questions of justness (or unjustness) of cause or individual contribution to the war effort, and thus digresses from an ideal moral vision which accords each individual her dues, it is the best practicable principle in times of war. A more morally just targeting doctrine may have distinguished just combatants from unjust combatants or else ignored the combatant/civilian distinction altogether and just focused on individual contribution to the war. Yet, (un)justness of cause is mired in uncertainty (what Dill terms “an epistemically-cloaked forced choice”) and the complexity of the battlefield makes it impossible to determine individual contribution to the war. Consequently, any attempt to design a more nuanced doctrine of targeting will end up being impossible to administer and too vague to offer real guidance for belligerents, thereby violating the rule of law – a moral principle of its own. The simple principle of distinction under IHL thus ends up being, in Dill’s view, morally just on its own terms. Dill’s arguments engage with some long-standing debates within the law and ethics of armed conflict, successfully navigating the disciplines of philosophy and law, seeking coherence within each while reconciling their potential conflict. It is impossible to do justice to the many nuances and moves in her argument in this short commentary. Instead, I will attempt to defend my own proposal for amending the distinction principle within Dill’s framework, thereby engaging with her arguments.

Weekly News Wrap: Monday, November 18, 2013

Your weekly selection of international law and international relations headlines from around the world: Middle East Israel has secretly detained a suspected al-Qaeda biological weapons expert for more than three years, court documents disclosed, after the man appealed to the Israeli Supreme Court to free him. The president of Iraqi Kurdistan has called on Turkey's Kurds to back a flagging peace process with...

After Saudia Arabia Spurns Seat on the UN Security Council, Jordan Indicates Willingness to Assume Role Instead

On Tuesday, Saudia Arabia made official its rejection of a highly sought after seat on the UN Security Council in a letter to the President of the General Assembly.   The letter confirmed in writing its surprise decision of October 18 (announced less than 24 hours after its election) to forgo a prestigious seat on the Council.  The letter now enables...

Weekly News Wrap: November 11, 2013

Your weekly selection of international law and international relations headlines from around the world: Middle East The UN said it had halted work on all but one of its 20 Gaza building projects as a result of an Israeli ban on importing building materials into the Palestinian enclave. The UN estimates that about 9.3 million people in Syria, or about 40 percent of the population,...

Weekend Roundup: November 2-8, 2013

This week on Opinio Juris, we brought you a healthy diet of treaties, chemical weapons, drones, and a sprinkle of terrorism. Duncan rounded up various treaty related news items this week, and argued that US treaty practice does not have to be a zero-sum game. Peter posted about the US Senate Foreign Relations Committee's hearings on a possible Understanding that would limit...

Guest Post: Self-Executing Treaties, Criminal Law, and Bond v. United States

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. He and Professor Sarah H. Cleveland filed an amicus brief in Bond v. United States arguing that the Offenses Clause provides an additional basis for upholding the constitutionality of the Chemical Weapons Convention Implementation Act.]

The difference between signature and ratification was not the only point of misunderstanding about treaties at the oral argument in Bond v. United States. Both counsel for the petitioner Paul Clement and some of the Justices also seemed confused about self-executing and non-self-executing treaties. Under U.S. law, the Chemical Weapons Convention (CWC) is a non-self-executing treaty. Article VII(1) provides that “[e]ach State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention” and, in particular, shall “prohibit natural and legal persons anywhere on its territory . . . from undertaking any activity prohibited to a State Party under this Convention, including enacting penal legislation with respect to such activity.” Justice Kagan asked if the treaty could have been self-executing, a possibility Mr. Clement seemed willing to entertain (transcript p. 7). Justice Scalia seemed to think that self-executing treaty would be better because it would require implementation by the states of the United States (transcript p. 33), though he was mistaken because a self-executing treaty binds the judges of every state under the Constitution’s Supremacy Clause. Justice Breyer seemed to think that a self-executing treaty would be worse because it would cut out the House of Representatives (transcript p. 48). And Solicitor General Verrilli made the point that if “a self-executing treaty that requires the President to negotiate and two-thirds of the Senate to ratify it, can impose an obligation of that kind, then it has to be the case that a non-self-executing treaty . . . that has . . . the additional structural protection of the passage of legislation by the Senate and the House and being signed into law by the President, can do what the self-executing treaty can do” (transcript pp. 32-33). Verrilli’s point echoes one that has been made by Rick Pildes, among others, in response to Nick Rosencranz’s reading of the Treaty Power.

The problem with all of this is that it makes little sense in the context of a criminal case like Bond.