Saudi Arabia denied permission for a plane carrying Sudanese president Omar al-Bashir to cross its airspace for the swearing-in of the new Iranian president, Hassan Rouhani, but it is unclear as to why. After the swearing in of the new Iranian president, Iran and the United States signaled a fresh will on Sunday to seek to end the dispute over Tehran's nuclear program...
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...
The Bureau of Investigative Journalism has found fresh evidence of "double-tap" strikes by the US in Pakistan; a double-tap is a second drone strike that deliberately targets rescuers at the scene of a previous drone strike. Zimbabwean Prime Minister Morgan Tsvangarai has labeled results of the recent presidential election which he lost a "sham" and has accused his opponent, President Robert...
Israeli and Palestinian negotiators have agreed to meet again within the next two weeks, aiming to seal a final deal in nine months. A military judge has acquitted former US intelligence analyst Bradley Manning of the most serious charge against him, aiding the enemy, but convicted him of espionage, theft and computer fraud charges for giving thousands of classified secrets to...
The verdict in the court-martial of Army Private First Class Bradley Manning, accused of the biggest leak of classified information in US history, will be read today. Taliban fighters armed with mortars and grenades attacked a prison in northwest Pakistan, escaping with about 250 prisoners after a gunfight with security forces. Israelis and Palestinians have resumed direct talks for the first time in three years, with...
Japanese Vice Foreign Minister Akitaka Saiki will visit China this week for talks with senior officials, the latest in an attempt to patch up relations soured by a territorial dispute. Suspected members of Nigeria's armed group Boko Haram shot dead more than 20 civilians when a vigilante group attacked them in the northern Borno state. Israeli and Palestinian teams are heading to Washington for preliminary...
Announcements From September 23-26, 2013, the British Institute of International and Comparative Law will be running a new four day programme called International Law in Practice. Led by many of the Institute's leading researchers and practitioners, the course will provide a broad introduction to key issues in international and comparative law – from public to private and from commercial to human rights....
As I noted in my first post, the amicus brief's central argument is that it does not matter that al-Bahlul was convicted of a non-existent war crime -- conspiracy as an inchoate offence -- because (p. 13) “the defendant had adequate notice that he was charged with conspiracy as a mode of liability for a completed war crime and was offered...
The Space Frontier Foundation’s NewSpace 2013 conference is currently underway in Silicon Valley. The program description explains that: The three day event will focus on the current, near term, and future potential and challenges of the emerging commercial space industry. People from throughout the space, advocacy and technology industries to those in startups, government and media bring their ideas for opening...
[José Alvarez is the Herbert and Rose Rubin Professor of International Law at New York University School of Law and is the Co-Editor-in-Chief (along with Benedict Kingsbury) of the American Journal of International Law] As the new co-editor in chief of the AJIL, I, along with my co-EIC, Benedict Kingsbury, are very grateful to Chris Borgen and Opinio Juris for hosting this...
I am grateful for the three incisive and insightful comments. Due to space limitations I will not be able to do justice to any of the comments in this response, but they will certainly help in my future work on this subject. I will use this brief response to clarify some parts of my argument and to situate the article in my broader research project.
To clarify my argument and hint at its potential significance I will use the pending case before the International Court of Justice concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). The dispute focuses on Japan’s discretion to issue “special permits” for killing whales arguably for scientific research as provided by Article 8(1) of the International Convention for the Regulation of Whaling (1946). The said Article allows a member state to issue permits and impose conditions “as the Contracting Government thinks fit.” Japan interprets this obligation as a “good faith” obligation, arguing that neither the International Whaling Commission nor the ICJ “have power to approve or disapprove the issue of a special permit.” (Public seating, 4 July 2013, afternoon, verbatim record, p. 36 paras. 23-24). Australia argues, however, that Japan must demonstrate the scientific value of the permits because “Japan does not ‘own’ the whales it catches.” (Public seating, 10 July 2013, morning, verbatim record, p. 65 para. 23). As stated by Professor James Crawford, arguing for Australia: “In respect of resources in the international public domain, to recognize a wide margin of appreciation is, in effect, to allocate those resources to the exploiting State.” (id., para. 22). Given the global commons problem, continues Crawford, the Convention requires “a proper showing … that [research] proposals are genuinely motivated by scientific considerations and adapted appropriately to achieve scientific goals.” Moreover, Japan must “consider seriously” the views of the IWC and its subsidiary organs, otherwise the conclusion will be “that the project is not being carried out for the purposes of scientific research, but for some other purpose inconsistent with the Convention.” (id. at para. 26).
The trusteeship concept that I develop suggests that states are subject to rigorous accountability requirements not only with respect to their treatment of endangered migratory species, but also when they are using transboundary resources they share with a few other states, and even when they manage their “own” resources. For states do not fully “own” their “own” resources. Stated otherwise, following the German Basic Law concept of ownership (Article 14), “Ownership entails obligations. Its use shall also serve the public good.” As discussed in my article (at pp. 311-12), the same rationale applies with even greater force to states.
To some extent, such accountability obligations are minimal because they do not restrict the scope of sovereign discretion. If Australia is right, Japan would have to provide more data and expert analysis to prove the scientific basis for its decision to permit the killing of whales, and pay serious attention to the views of the IWC and others. But the ultimate decision would stay with Japan. Others may remain skeptical, and their suspicion may even have a stronger basis, but nothing more. This would be an “imperfect” obligation, in the sense that it would be a non-justiciable one; but an imperfect obligation is not necessarily an ineffective one, as anyone exposed to public shaming will appreciate.
The question whether the ICJ may question Japan’s explanation is a different and rather difficult one, which requires further deliberation. In my article I identified this as a question to be addressed at a later stage. Such an inquiry will have to assess the legitimate scope of review of national policymaking by external bodies such as international tribunals, in light of concerns with the impartiality of the judges, their competence to make better judgment calls than the reviewed sovereigns, and the potentially stifling impact of their interventions on domestic democratic processes. It may make sense, for example, for the reasons stated by Crawford, to authorize international tribunals to review national discretion when it applies to the use of migratory species but not to the management of domestic stocks.
This minimalist vision seems insufficient for von Bogdandy and Schmalz who want to “Push[] Benvenisti Further.” The opposite push comes from McCrudden who regards my position as “anything but ‘modest’ or ‘minimal’.”
